Following illegal and unethical arms trades to countries with very poor human rights records under apartheid, democratic South Africa established a legal framework so that the mistakes of the past would not repeat themselves.
But 26 years later, the plan to implement a system that ensures responsible arms trades guided by international law has failed. The reality of South Africa’s arms exports appears to be dominated by economic gain, with no space provided for humanitarian considerations. Today, South Africa grants permits to export arms to Saudi Arabia and the United Arab Emirates (UAE), countries accused of committing war crimes in Yemen.
When decisions are not made based on rationality or facts, such behaviour is indicative of a failed system that can help fuel a conflict such as the present one in Yemen. To review decisions granting export permits and hold South African state entities to account, the Southern Africa Litigation Centre (SALC) and Open Secrets launched an urgent application in the Pretoria high court on 3 June 2021.
Violations of international law: South Africa ignores call to stop arms exports
According to most recent United Nations (UN) expert reports, the situation in Yemen constitutes the world’s worst humanitarian crisis. The latest UN expert report from September last year, stated that about 112 000 people have died due to hostilities since the outbreak of the conflict in 2014. Saudi Arabia and the UAE are parties to the conflict in Yemen. The report further accuses Saudi Arabia and the UAE of violating international law — human rights laws and the laws of war — which results, and has resulted, in the death and injury of innocent civilians.
Following these allegations Italy, the UK, Germany and the US have, at least temporarily, suspended their arms exports to Saudi Arabia and the UAE. The gravity of the situation is such that the latest UN’s expert report calls upon the UN Security Council to refer the situation in Yemen to the International Criminal Court.
Despite such publicly available information, up to a third of South Africa’s arms exports in 2018, 2019 and 2020 were delivered to Saudi Arabia and the UAE. South Africa has clearly ignored the call by the UN expert group to stop arms transfers to the two countries.
The legal framework: Who decides on arms exports?
The South African legislature established with the National Conventional Arms Control Act (the Act) and the National Conventional Arms Control Committee (NCACC) a framework that is supposed to guarantee that specific criteria and principles guide a decision to grant a permit. These criteria and principles speak a clear language. For example, the NCACC “must avoid” arms exports to countries that “systematically violate or suppress human rights and fundamental freedoms”. The NCACC must also avoid transfers that are likely to contribute to the escalation of the regional military conflicts or endanger the peace in a region. The Act sets up clear limitations that the NCACC must consider.
But the practice of the past 18 years shows that the implementation of these provisions is problematic. The question is whether the NCACC actually avoids arms transfers if the importing country has a record of violating international law. Judging by the permits that have been granted to export arms to Saudi Arabia and the UAE, the legality of such conduct is clearly in doubt.
Back to old habits: A deliberate disregard of information?
The decision to grant a permit to export arms qualifies as an administrative decision. Therefore, under South African law, a decision granting permission to export arms must take all relevant considerations into account, and it must be rational. In the light of the UN expert reports, it is alarming how a state entity could grant a permit to transfer arms to countries undermining the peace and security in Yemen and potentially committing war crimes. To ignore such information creates the disturbing notion of a failed system and decision-making process.
Regarding Saudi Arabia and UAE, this leaves us with two potential and equally unlawful scenarios. First, the NCACC and its subsidiary bodies did not take the publicly available UN expert reports into account. Second, the NCACC and its subsidiary bodies did take the UN expert reports into account, but despite the evidence presented in them, it then decided that the transfer of arms to the two countries in question would not violate the provisions set out in the Act. Both scenarios violate laws relating to administrative decisions. In its foresight of state entities making unlawful administrative decisions, the constitution provides the courts with the power to review and set aside such decisions.
Arms exports, international crimes and death of innocent civilians: Do we care too little?
Public interest litigation often tries to reinterpret or extend the scope of the law; that is not the case here. In this matter, the litigation is merely asking the state to adhere to the rules that the state itself has set up to ensure that those interests connected to arms transfers do not supersede humanitarian concerns. The lives of innocent civilians are being destroyed daily in the conflict in Yemen. The list of injured and dead cannot illustrate the magnitude of the tragedy concealed behind each name upon it. If there is a risk of South African arms being exported to countries that violate international law, those arms transfers have to stop. A review of such decisions would mark a crucial step in preventing those transfers.
As much as this is a question of law, it is also a question of humanity. We must ask ourselves: how can it be that we do not care more about these arms transfers? Is it because the conflict in Yemen is too far away? Is it because South Africa cares more about its own economic interests? Or is it because it is not our own children who are dying?
While South Africa has repeatedly reiterated the importance of all parties adhering to international law in Yemen, its arms exports speak a different language. It remains to be seen whether the high court will enforce existing law and put the protection of human rights and civilians above other competing interests. The court proceedings will further indicate whether the state is willing to keep the promise it made many years ago: a promise to not repeat the mistakes of the past, become a responsible member of the international community and ensure accountability in all matters concerning conventional arms.