III. GOVERNMENT POLICY REFORM AFTER 1994

The April 1994 elections, followed by the May 1994 inauguration of a new, democratically elected government of national unity dominated by the ANC and headed by President Nelson Mandela, triggered a lifting of the international arms embargo against South Africa.15 It also produced great expectations for a new and ethical foreign policy, including responsible arms trading practices.16

The new government was immediately faced with the huge problems of a country deeply divided and unevenly developed. Correcting the anomalies of South Africa's arms industry was not a high priority on its agenda. But, forced by circumstance into early action, the ANC government soon oversaw a remarkable process of debate and reform of arms trade policies. "Before 1994, we had effectively two foreign policies," recalled a long-time foreign policy observer. "One was managed by the defense intelligence, the other by the Department of Foreign Affairs. When the government of Nelson Mandela took power, we had a dramatic shift with defense and related matters placed under intense oversight."17

The "Wazan debacle" and the Cameron Commission
The sudden shift in South Africa's approach to arms exports was prompted by an arms-related incident that shook the country in September 1994. This story, which first surfaced in media reports, involved a consignment of South African arms and ammunition ostensibly directed to Lebanon, according to the (forged) end-user certificate, but in practice meant to be routed via Yemen to an unknown destination.18 Yemen was then embroiled in a civil war. It also appeared on the list, approved by the previous cabinet, of countries proscribed from receiving South African weapons. The shipment intercepted in Yemen comprised 10,000 AK-47 assault rifles, 15,000 G3 assault rifles, and a million rounds of ammunition. As it turned out, the owner of the hardware was the newly renamed but yet to be restructured South African armed forces, the South African National Defence Force (SANDF); the seller was Armscor. Honoring its best tradition of secrecy, Armscor had not fully informed its new masters about this shadowy transaction and its ramifications. This time, however, the political climate did not allow the corporation to put a lid on the affair, which rapidly unfolded into a full-blown scandal. The "Wazan debacle," so-called with reference to the involvement of a Lebanese arms dealer named Eli Wazan, not only brought out a number of skeletons from Armscor's closet, and ignited a review of arms trade policies, but also marked a watershed in the country's view of its relationship with the outside world.

Responding to a public outcry about the arms deal on October 14, 1994, the government appointed a commission of inquiry that took on the name of its chairman, Edwin Cameron (later appointed to be a High Court judge). Despite its constrained power and limited resources, the Cameron Commission was able to obtain access to hundreds of documents and take evidence from eighteen witnesses, including Armscor officials and foreign actors involved in transactions that spanned from 1991 to 1993 and stretched from Yemen to the former Yugoslavia.19

The Commission presented its first report to the government in June 1995, featuring a cast of characters that included South African officials, a Lebanese middleman, and a Saudi prince. It concluded:

The Commission found that numerous acts of commission and omission by Armscor officials had contributed to the debacle. However, the most significant cause was a general, institutional lack of responsibility regarding the end destination of South African arms exports. This lack of responsibility was evident at policy, operational and organisational levels on the part of the previous Cabinet, the Defence Foreign Policy Committee and Armscor.20

Persuaded that the whole arms trade policy of South Africa was badly in need of thorough review and reform, the Commission called a public hearing on the arms trade, held in Cape Town between June 19 and June 28, 1995. Recollecting the hearing, Laurie Nathan, one of the members of the Cameron Commission, observed that the event "had considerable political significance in the context of South Africa's new democracy, providing government, interest groups, and citizens with an opportunity to debate a previously secret aspect of national policy in an open forum."21 The arms trade debate became the catalyst for a far-reaching examination of questions of foreign policy, economics, and ethics, and conveyed a vivid portrait of a society in transformation but still polarized between entrenched privileges and practices, and the need for transparency and renewal.22

This debate by itself, however, could not overcome the core problem facing the new government: the difficulty of dismantling a defense apparatus monopolized by white Afrikaners and imbued with a clannish culture of secrecy of which the "Wazan debacle" was just a symptom. Laurie Nathan observed: "The [apartheid] government was intent on manufacturing and purchasing arms in order to secure the political survival of minority rule, and on exporting arms in order to secure the economic survival of the defence industry. These imperatives were not tempered by the constraints of independent scrutiny, public accountability or international norms."23 Since a purge of the defense establishment was not possible for a government that had espoused the imperative of national reconciliation and integration and was bound by constitutional guarantees of continued employment for former civil servants, the country's new leadership set out at least to reform the rules governing the arms trade.24 As Ronnie Kasrils, the deputy defense minister at the time, put it: "We decided that since we had a defense industry and since we needed it from a strategic point of view, then we would use it responsibly."25 To this end, the government conferred on the Cameron Commission the additional mandate to examine the existing policy framework for arms exports and issue recommendations, in conformity with the new South African constitution and the government's stated commitments to integrate human rights concerns into foreign policy decisions.26
The Commission's Recommendations
The Commission's second report, based on this brief, provided both a policy framework and operational norms aimed at reshaping South Africa's arms trade. In the end, not all of the Commission's recommendations were implemented, but they came to represent the standard against which government actions vis-à-vis arms transfers and human rights would be measured. As such, they have helped define the arms trade debate in South Africa.

The Commission's point of departure was that arms are not a neutral commodity, and, therefore, the decision to export them involves "inescapable moral choices" on the part of the supplier states. It stated: "If these states deliberately or carelessly sell weapons to repressive or aggressive regimes, they bear a measure of culpability for the use to which their weapons are put."27 A responsible arms trade policy, the Commission argued, should be grounded in the nation's commitment to international law, and based on the respect for human rights enshrined in the new South African Constitution.28

According to the Commission, the government should carefully consider whether proposed arms transfers would:

C promote the capabilities of the recipient country to meet its needs for legitimate self- defense;
C serve as an appropriate and proportionate response to the threats confronting that country;
C enhance the recipient's capability to participate in collective arrangements consistent with the U.N. Charter or as requested by the U.N.;
C be at risk of diversion to a third party;
C undermine export restraints applied by regional bodies of which South Africa is not a member.29

Tapping into a three-year-old international debate, the Commission proposed to enshrine these criteria in a code of conduct on arms transfers that would prevent South Africa from exporting weapons to nonstate actors (such as armed rebel groups), or to states under military rule or guilty of gross human rights abuses or systematic violations of international humanitarian law.30 Specifically, the Commission proposed avoiding transfers that might:

C increase regional tension and instability;
C introduce destabilizing military capabilities in a region;
C contravene an international arms embargo or any other resolution of the United Nations Security Council;
C be used for internal repression, external aggression, international terrorism, or any purpose inconsistent with the U.N. Charter and international law;
C seriously undermine the recipient state's economy;
C prolong and aggravate an existing armed conflict, save when the recipient is recognized by the U.N. Security Council to be defending itself against aggression;
C in any way undermine South Africa's security, strategic capabilities, or foreign interest.31

The Commission further argued that the system of country classification used by the National Party since 1983 should be intended only as a broad policy orientation and be integrated with a case-by-case approach that would allow for adjustments in the light of the criteria outlined above, and be made the object of parliamentary approval. Acomplete overhaul of weapons classification was also advocated by the Commission, which pointed out that the previous government's distinction between "sensitive" and "non-sensitive" items rested solely, and unsatisfactorily, on the nature of the weapons. Instead, such classification should also take into account the characteristics of the recipients and the intended use of the weapons.32

Crucially, the Cameron commissioners addressed the intertwined issues of abuse of power and lack of transparency that had set the stage for the "Wazan debacle." In order to avoid the former, the commissioners proposed the creation of a cabinet committee comprising the ministers of defense, trade and industry, foreign affairs, the intelligence services, and three additional departments with no direct interest in promoting arms exports. Such a body would be chaired by one of the three additional ministers and mandated to scrutinize all arms exports, the Commission suggested. Administrative control over permits would be transferred from Armscor to the Defence Secretariat, the civilian component of the Department of Defence. As to transparency, the Commission strongly advocated parliamentary oversight at all stages of the arms export decision-making process and the adoption of enabling legislation comprising guidelines for arms export and the code of conduct.33 In addition, the commissioners recommended that South Africa regularly file submissions to the U.N. Register of Conventional Arms and publish its list of proscribed countries, quarterly reports on pending applications, and an annual report on all transfers.34

The Commission concluded its report by recommending public exposure of countries found in violation of export agreements, the compilation of a list of licensed international agents and brokers, and the adoption of more thorough checks on end-user certificates' authenticity. It argued that countries that had violated an end-user agreement should be prohibited from receiving further armaments from South Africa.

By all accounts, the Cameron Commission's medicine was not easy to swallow for a defense establishment used to acting with a free hand across the board. But the government seemed determined to avoid another debacle and took firm steps to implement many of the Cameron Commission's recommendations.

A New Policy
Shortly after the publication of the Commission's first report, the cabinet approved an interim arms trade control policy, in August 1995, that spelled out the principles and criteria governing national arms trade and transfers.35

The new policy, with its strong human rights criteria and commitment to transparency, echoed the Cameron Commission's prescriptions. It was elaborated in the White Paper on Defence that was compiled in consultation with other government departments, parliamentary committees, and nongovernmental organizations and approved by the cabinet and parliament in 1996.

Setting out principles to govern responsible arms transfers, the policy commits South Africa to promote and exercise due restraint in the transfer of conventional weapons by taking the following factors into account:

C The respect for human rights and fundamental freedoms in recipient countries, with reference to the Universal Declaration of Human Rights and the African Charter on Human and Peoples' Rights, and giving careful scrutiny especially to cases where political, social, cultural, religious and legal rights are seriously violated by the authorities of that country.
C The internal and regional security situation of the recipient country, in the light of existing tensions or armed conflicts.
C The record of compliance of the specific country with regard to international arms control agreements and treaties.
C The nature and cost of the arms to be transferred in relation to the circumstances of the recipient country, including its legitimate security and defense needs, and with the objective of minimizing diversion of human and economic resources for armaments.
C The degree to which arms sales are supportive of South Africa's national and foreign interests.

As regards human rights criteria, the White Paper on Defence provides bluntly that "South Africa shall not transfer arms to countries which systematically violate or suppress human rights and fundamental freedoms."

Further, the policy incorporates a code of conduct, stating that arms transfers will be avoided where they would be likely to:

C be used for the violation or suppression of human rights and fundamental freedoms;
C contravene South Africa's international commitments, in particular its obligations under arms embargoes adopted by the United Nations Security Council and other arms control agreements or responsibilities with respect to internationally accepted custom;
C contribute to the escalation of regional conflicts, endanger peace by introducing destabilizing military capabilities into a region, or otherwise contribute to regional instability and negatively influence the balance of power;
C be diverted within the recipient country or be re-exported for purposes contrary to the principles stated above;
C have a negative impact on South Africa's diplomatic and trade relations with other countries;
C support or encourage terrorism;
C be used for purposes other than the legitimate defense and security needs of the recipient country.36

The White Paper on Defence also proposed the creation of an autonomous inspectorate for defense-related industries. The role of this body would be to provide independent scrutiny of arms trade activities and ensure that they are conducted strictly in accordance with the principles, policies, and guidelines laid out by the government in the wake of the "Wazan debacle." The inspectorate would also make periodic reports to the appropriate parties and parliamentary oversight bodies.37

On December 1, 1999, the cabinet approved an additional document, the White Paper on Defence Related Industries, which defines the government's vision for the future of the defense industry. The policy explains that government regulation of this industry is based on the following considerations:

C The nature of the products produced and the potential dangers posed by the uncontrolled development, production, manufacture, and trade of armaments.
C The South African government's commitment to non-proliferation, disarmament, restraint, and effective arms control.
C Cognizance of the fact that the government can directly influence the viability of the domestic defense-related industry.38

The document places emphasis on the last item-enhancing the viability of the defense industry. Accordingly, it lays out several policy options relating to industrial restructuring and also underscores the importance of arms exports to the industry's future. On the topic of export controls, the 1999 white paper restates the country's commitment to a restrained arms trade policy. It reaffirms the code of conduct and the call for an independent inspectorate featured in the earlier White Paper on Defence. The White Paper on Defence Related Industries also explains that the purpose of the control structures is "to ensure that arms trade and transfer policies are not unduly influenced by commercial interests and pressures, and that the guidelines, principles, and criteria are observed."39

18 Commission of Inquiry into Alleged Arms Transactions Between Armscor and One Eli Wazan and Other Related Matters, First Report (Johannesburg, June 15, 1995), pp. 1-3, 39-41, available online at www.polity.org.za/govdocs/commissions/cameron.html. The Cameron Commission uncovered evidence that prior shipments of arms and ammunition from South Africa had been re-routed from Yemeni territorial waters to one of the republics of the former Yugoslavia, then under a United Nations arms embargo. The end-user certificate is a document committing the buyer not to divert or re-export weapons without the supplier's prior authorization.

19 Commission of Inquiry, First Report.

20 Commission of Inquiry, Second Report, p. 3.

21 Laurie Nathan, "The Burden of a Shadow: A Report on the Cameron Commission of Inquiry into South African Arms Exports," unpublished paper, September 1997.

22 Commission of Inquiry, Second Report, Appendix B.

23 Laurie Nathan, "The Burden of a Shadow."

24 The first report of the Cameron Commission, however, did lead to some significant personnel changes: Two senior Armscor managers, the managing director (or chief executive officer), and the chairperson of the board resigned, and a new chairperson of the board, appointed by the defense minister, replaced most of the remaining board members. Human Rights Watch email communication with Laurie Nathan, May 8, 2000.

25 Human Rights Watch interview, Pretoria, January 31, 1999.

26 Commission of Inquiry, Second Report, Chairperson's Foreword, p. v.

27 Ibid., p. vi.

28 Act 108 of 1996. See in particular, art. 12; art. 198(c), art. 199(5); art. 200(2), and arts. 231-33.

29 Commission of Inquiry, Second Report, p. vii, 33-44.

30 The debate on the code of conduct was initiated in 1992 by a U.S.-based coalition of nongovernmental organizations, the Arms Transfers Working Group. It soon reverberated in Europe where the first code of this kind was adopted by the European Union in June 1998. A year later the U.S. Congress adopted a less stringent measure. Council of the European Union General Secretariat Press Release, 10754/98 (Presse 272-G), August 3, 1998. Omnibus Appropriation Bill of the United State Congress, November 19, 1999.

31 Commission of Inquiry, Second Report, pp. vii-viii, 33-44.

32 Ibid. pp. ix-x, 62-69. See also footnote 7. The Commission proposed a division of countries into three groups: the first would include countries that are legitimate recipients and
likely to retain this status for the foreseeable future; the second group would include countries that are prohibited from receiving arms; the third group would include countries that could not be easily placed in the former two categories and would therefore require especially rigorous scrutiny. In terms of weapons classification, the Commission proposed the following categories: category X, comprising items whose transfer is prohibited under international arms trade control agreements or because their export may undermine South Africa's security; category Y, consisting of all other armaments and related technology, the export of which requires a government permit; and category Z, inclusive of dual-use items that are subject to varying controls. Ibid. pp. viii-ix, 48-61.

33 Specifically, the Commission argued that the cabinet committee submit a list of proposed exports to the parliamentary subcommittee on arms controls at least thirty days before the intended date of export, and that the subcommittee be empowered to request parliament to consider the appropriateness of a prospective export if it had reason to believe that such export did not comply with the code of conduct. It further recommended that parliament should be given a say in the matter of country classification.

34 Ibid., pp. x-xi, 70-76. The U.N. register was inaugurated in 1992 and includes seven major weapons categories. In 1998 a total of ninety-seven states submitted data on their import and export of these weapons to the register. Though these submissions are voluntary, the register is considered an important transparency and confidence-building instrument. Human Rights Watch, World Report 2000 (New York: Human Rights Watch, 1999), p. 409.

35 "Guide to the Terms of Reference," pp. 1-5.

36 White Paper on Defence, chapter 8, paras. 15, 16, and 17, www.polity.org.za/govdocs/white_papers/defencewp.html.

37 Ibid, para. 27.

38 White Paper on the South African Defence Related Industries, chapter 6, www.polity.org.za/govdocs/white_papers/ defence/defenceprocure6.htm.

39 Ibid.