As a parallel process while new arms trade control structures were put in place, South Africa also took steps to improve concrete mechanisms for controlling the weapons trade. Two initiatives are especially noteworthy, although both are flawed. The government sought to combat unauthorized diversions of weapons sold by South Africa, and it also worked to strengthen implementation of the controls through enhanced transparency and public accountability.
End-User Certification, Verification, and Enforcement
The "Wazan debacle" investigated by the Cameron Commission highlighted one of the thorniest issues connected with arms trade verification and enforcement, that is, the ease with which arms export documentation can be falsified. It emphasized how flimsy credentials and promises from "end users," the formal recipients of weapons, are often taken at face value by supplier states, when, in fact, the arms are redirected to another destination. Violations of end-user pledges are likely to occur when rebel groups or states that are stigmatized for their abusive behavior roam the black market in search of sensitive goods that national or international laws deny them.
The Cameron Commission recommended that the government take the appropriate steps to "identify and eliminate all systems and methods which undermine control over the end destination of arms export [and]...to identify and introduce or strengthen means of ensuring that arms exports end up at the authorized destination (e.g., pro-active verification of end-user certificates)...."81 South Africa has made some progress in achieving this goal, though diversion of its arms has nonetheless taken place, and further, enhanced measures need to be adopted.
Deputy Minister of Foreign Affairs Aziz Pahad recognized the inescapable link between strict end-user controls and human rights guarantees in an interview in 1997 in which he stated: "The real test for the prioritization of human rights...is the strength of end-user certificates from the buying country and the availability and efficacy of penaltiesin the event of contravention."82 The government moved to ensure that this connection would not be lost. South Africa now requires end-user certificates to be authenticated by the South African government in addition to confirmation of bona fide credentials issued by the importer's authorities, and the agreement that weapons will not be re-exported without South Africa's permission. The end-user certificates, while not standardized, must include a description of the goods, their serial numbers, and quantities. Moreover, a delivery verification document is required in the transfer process.83 Most importantly, South Africa reserves the right to initiate separate verification through its diplomatic representation in the recipient's state.
An example of this pro-active approach occurred in August 1997 when the South African High Commissioner in Kenya asked the Burundian government for the serial numbers of South African weapons that the Burundian military claimed it had captured from Hutu rebels in Burundi.84 Curiously, in subsequent correspondence with Human Rights Watch, South Africa denied ever having initiated this action.85
Reflecting the importance of end-user commitments as a control mechanism, a provision in the White Paper on Defence declares that there should be no further arms sales to countries that have breached such commitments.86 Deputy Minister Pahad has reassured Human Rights Watch that in at least one case, when in late 1997 or early 1998 Namibia diverted South African trucks to the Democratic Republic of Congo, South Africa "stopped" further arms sales to that country.87 Another South African official, however, described the government's response differently. According to this official, South African arms control authorities requested an explanation from the Namibian government about the diverted trucks and were awaiting an official response. He asserted that the South African government "need[s] tangible evidence that diversions occur" before taking action.88
In another instance, South Africa initiated an inquiry in response to Human Rights Watch's charge that South African rounds of phosphorus shells intended for Malaysia had ended up in Sudan.89 Speaking in early 1999 about the investigation, a government official indicated that South Africa had ascertained that the diversion had clearly occurred.90 He confirmed that South Africa was preparing a demarche to Malaysia, adding that the demarche would be made public, in accordance with the pertinent provision in the defense white paper that reads: "In the event of an importing country breach [of end-user agreements], the transgression will be publicized internationally."91
In an interview with Human Rights Watch, Kader Asmal reiterated this position by declaring that "if we come across a diversion, we will announce it publicly and then we will have to take action."92 Despite the government's stated commitment, Human Rights Watch has not been able to find any evidence that an open denunciation ofMalaysia's diversion ensued.93 On the contrary, the government has publicly acknowledged only that South African weapons appear to have been diverted in one case, while refusing to name the implicated countries.94 In a positive development, Asmal announced in December 1999 that the government had commissioned an independent audit to probe whether "correct procedures" had been followed to prevent breaches of end-user certificates, and whether these procedures had been foolproof, but again there had been no news of any developments on this as of September 2000.95 Without regard to Malaysia's role in the earlier arms diversion, in September 2000 South African arms industry officials reportedly announced that Denel was "very actively" pursuing a lucrative weapons deal with Malaysia and had asked former president Mandela to help them win the sale.96
For South Africa and other suppliers, even sustained efforts to rigorously check documentation before authorizing arms transfers and to verify delivery of each shipment cannot guarantee that the weapons it exports are not diverted. "No country can enforce a system of inspectors, and no country will open its barracks to another government's inspections," said Julius Kriel. Once an unauthorized diversion has occurred, he added, "[t]he only way to make sure that end-user commitments are respected is to cut out the diverting party from logistical support and spare parts for your equipment."97 Human Rights Watch believes that, at a minimum, in order to effectively deter diversions in violation of end-user agreements, all ascertained violations should be made public by the supplying government or parties privy to the pertinent information. In addition, South Africa should work with other governments to develop standardized and difficult-to-forge end-user documentation, as proposed by Southeast European countries at a meeting in Sofia, Bulgaria, in December 1999.98 Such standardization, especially if complemented by other pro-active checks, would make it easier for authorities in arms exporting countries to detect false end-user certificates forged by unscrupulous arms brokers or provided by corrupt officials.
Access to information is enshrined in article 32 of the 1996 South African constitution, which reads: "(1) Everyone has the right of access to (a) any information held by the state and (b) any information that is held by another person and that is required for the exercise or protection of any rights."
In accordance with this principle, the Cameron Commission stated: "The public has the right to know as much as is reasonably and practically possible about armaments transactions. This is not only an intrinsic right in a society committed to openness and democracy- the Constitution proclaims-it is also an important instrument in furthering the human rights concerns, both locally and internationally, which underlie our new constitutional order."99 The "Wazan debacle" had clearly exposed how secrecy in the arms trade might endanger human rights. The Cameron Commission, as noted above, called on the South Africa government to take several concrete steps to ensure transparency.
In the 1996 White Paper on Defence, the South African government stated, following the recommendations of the Cameron Commission, that the Department of Defence has "a positive duty to provide sufficient information to ensure adequate parliamentary and public scrutiny on defence matters."100 A year later, however, this commitmenthad been contravened. In July 1997, three South African newspapers disclosed a deal with an unnamed Middle Eastern client that reportedly would have represented the biggest weapons transaction "in the history of South Africa."101 Denel, the government-owned arms manufacturer, sprang into action to block further revelations by suing the three newspapers and a journalist under the Armscor Act, still in force, which prohibits the disclosure of any information relating to the supply, marketing, and export of armaments.102 The recipient country was widely rumored to be Saudi Arabia. In August 1997, Human Rights Watch was able to obtain official confirmation of the Saudi identity of the prospective recipient of South African long-range artillery systems through a question asked publicly and directly to Asmal.103 Commenting on this episode, Joe Modise, the South African defense minister at the time, had this to say: "We were placed in this humiliating position because of our own press, which is supposed to be working in the interest of South Africa."104 The fracas sparked a debate that ultimately led the government to announce a new policy on transparency in armaments exports.105
In keeping with the new policy on transparency, the government pledged to make available details of transactions in regular reports. Annual reports on arms sales began to be posted to a website in 1998.106 These reports identify the recipients of South African weapons and list the total value of annual arms exports by country, the characteristics of which are aggregated as follows:
C Category A. Sensitive Major Significant Equipment (SMSE). SMSE comprises conventional implements of war that could cause heavy personnel casualties and/or damage and destruction to material, structures, objects, and facilities. Examples are artillery, bombs, fighter aircraft, attack helicopters, and armored fighting vehicles.
C Category B. Sensitive Significant Equipment (SSE). SSE comprises all types of hand-held or portable assault weapons of a caliber smaller than 12.7mm. All assault rifles, machine guns, pistols, and related small arms and ammunition are included in this category.
C Category C. Non-sensitive Equipment (NSE). NSE comprises all equipment usually employed in the direct support of combat operations that have no inherent capability to kill or destroy, although, if employed in conjunction to SMSE, could have a multiplier effect. Examples are radar systems, meteorological stations, radio equipment, support vehicles and aircraft, and recovery equipment.
C Category D. Non-lethal Equipment (NLE). NLE is limited to purposely designated de-mining and mine clearing and mine detecting equipment, all non-lethal pyrotechnical and riot control products and related equipment. Examples are mine detectors, signal flares, baton rounds and tear gas.
C Category E. Not for Sale (NFS). NFS comprises all defense or defense-related products that are not for sale, such as all landmines.
C Category G. General Services. This category includes any service to a foreign country that has a relevance to rendering aid, advice, or assistance or training in relation to conventional arms but excluding after sales and warranty services.107
The annual reports show that South Africa sold weapons to the value of approximately R.850 million (U.S.$ 198.9 million) in 1996, R.1.3 billion (U.S.$282.2 million) in 1997, R.646 million (U.S.$117.6 million) in 1998, and R.1.1 billion (U.S.$179.8 million) in 1999.108 The human rights records of a number of recipients of these weapons raised questions in terms of the government's stated commitments (see below).
Crucially, the government reserved the right to maintain confidentiality regarding recipients whenever necessary, meaning that it would refuse to report the country of destination for some arms exports. Moreover, the reports do not disclose either quantities or specific types of weapons. Ronnie Kasrils, then deputy defense minister, justified these omissions by saying: "We wanted a perfect [transparency] instrument but then we realized that the world works differently."109 In the real world, officials maintain, confidentiality on arms transaction details is what makes deals possible.110
Laurie Nathan, a former member of the Cameron Commission, contested the validity of restricting reporting because of client confidentiality considerations. He argued: "Revealing the names of arms importing countries would hardly compromise our national security. Many buyers desire confidentiality, but their needs do not override a basic constitutional principle. Domestic security and commercial interests can be protected by withholding sensitive technical data while still providing sufficient information to allow for informed parliamentary and public comment." In addition, Nathan observed, "The marketing of armaments necessarily entails revealing their main features both to agents and to potential clients."111
There is a discrepancy of views among different government departments about the way future reports will look. An official in the foreign affairs ministry, for example, told Human Rights Watch that evolution of the reports towards greater transparency is inevitable. One of this official's counterparts in the defense ministry, however, believed that the format of the reports is cast in stone: "This [report] model was chosen precisely in order not to encroach on our competitiveness, particularly with regard to long term contracts."112 A different perspective within the defense establishment holds that since South Africa is the major weapons producer of the African continent, and the preeminent member of the Southern African Development Community (SADC), it should strive for greater openness in the arms trade. As SANDF Lt. Colonel Nicholas Clive Sendall observed (in his private capacity), "[t]here is a definite and clear linkage between the emerging security posture of South Africa as a regional power and public scrutiny and transparency as a means to building confidence in the region with regards to the intentions and posture of the South African government."113
The Role of Parliament
The NCACC reports on arms transactions quarterly to the cabinet, but-despite the defense white paper's commitment to ensuring parliamentary scrutiny-the government has resisted allowing any decision-making or even an advisory role for parliament on arms transfers.114 Minister Asmal, commenting that he failed to understand "this obsession with parliament," stated to Human Rights Watch that the NCACC system offers enough guarantees, and pointed out that the parliamentary committees with competence on arms export policy do not take an oath of confidentiality.115 The implication is therefore that these committees cannot be entrusted with sensitive information, and cannot be granted prior scrutiny of South Africa's weapons trade.
In practice, challenges to the government's arms transfers decisions on human rights or other grounds have mainly come from nongovernmental organizations and the press. Rarely has parliament been heard in this regard. Partly, this has been due to the steep learning curve that South Africa's parliament has been on since the 1994 elections. Aziz Pahad, the deputy foreign affairs minister, commented to Human Rights Watch that one of the problems the new government faced in its relationship with parliament was that when the ANC took power it first had to develop an understanding of how the system works. "We have to make sure the capacity [of parliament to carry out its responsibilities] is properly developed."116
Some features of the new constitution have also hampered the development of effective parliamentary oversight of the executive: in particular, that MPs are elected proportionally on a pure list system, and cannot cross the floor when in dissent with their own party's line. "If you disagree," said an analyst, "you can be thrown out of a party. This is why, instead of having watchdogs in our parliament, we have ended up with lapdogs."117 In addition, in areas of policy specialty such as defense, there is no burning issue comparable to those in health or labor, for example, that would open party fault lines. This has hampered both the development of parliamentary expertise, and a more active debate.118 Parliamentary specialists believe that, in order to promote a more effective oversight, it will be necessary to create a subcommittee with the task of shadowing the NCACC.119 The Second Report of the Cameron Commission proposed that prospective arms sales be vetted by a special parliamentary committee, comprising members of the defense and foreign affairs committees, which would make recommendations to parliament.
Nosizwe Madlala Routledge, who became deputy defense minister following the 1999 elections, stated in an interview with Human Rights Watch that there is no real impediment in bringing parliament into arms trade determinations. "Since we publish pertinent information at the end of the process, we should not be afraid to make it available earlier," she said.120 This approach, if adopted, would fully honor the Cameron Commission's recommendations. The proposed Conventional Arms Control Bill, as described above, does not make progress in this direction.
The Promotion of Access to Information Act
In February 2000, the government fulfilled a constitutional obligation to adopt legislation to flesh out in statutory form the constitutional guarantee of access to information, passing through parliament and signing into law the Promotion of Access to Information Act. The act provides for individuals to have access to state and private records (and, controversially, for state access to private records also, in some circumstances), and sets out detailed rules forthe disclosure of such information and exceptions to the general rule that access should be allowed. The act does not apply to records of the cabinet or its committees, and hence would therefore appear to exclude the records of the NCACC.121
In addition, the act provides for strict limits on access to defense-related information. Section 41(1) provides that public bodies may refuse a request for access to records if their disclosure "could reasonably be expected to cause prejudice to" the country's defense, security, or-subject to an exception for records that are more than twenty years old-its international relations. Requests can also be refused, under the same article, if disclosure would reveal confidential information shared between South Africa and another state or an international organization, or information required to be held in confidence by international agreement or customary international law.122
To avoid any doubt, the section specifies that the records subject to these restrictions include records "relating to the quantity, characteristics, capabilities, vulnerabilities, performance, potential, deployment or functions of (i) weapons or any other equipment used for the detention, prevention, suppression or curtailment of subversive or hostile activities; or (ii) anything being designed, developed, produced or considered for use as weapons or such other equipment."123 Disclosure of records may also be refused if they contain "financial, commercial, scientific or technical information...the disclosure of which would be likely to cause harm to the commercial or financial interests of [a] third party."124
The restrictions contained in the Promotion of Access to Information Act, while broad in scope, do permit access to arms trade information in some cases. The act itself provides that a public body must grant access to a record if the disclosure would reveal evidence of which "a substantial contravention of or failure to comply with the law" or "an imminent and serious public safety or environmental risk" and "the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question."125 Were arms export control criteria to be codified in law with the adoption of a redrafted CAC Bill, this rule could be used to obtain information pointing to a violation of arms trade policy.
The U.N. Register
In 1995 South Africa submitted its first report to the U.N. Register of Conventional Arms. The register, created in 1992, collates information offered voluntarily by governments on seven major weapons categories and is regarded as an important transparency and confidence-building instrument.126 South Africa's participation in the register came with significant caveats: as with its national reports, South Africa reserved the right to withhold reporting arms exports when necessary to protect client confidentiality. In addition, South Africa stated that it would only disclose transfers "once the full contractual obligations with regard to full systems have been achieved."127 Under this restriction, if South Africa arranged to sell military equipment to a client over several years as part of a single contract, it would withhold information until the final year of the contract even if previous arms deliveries had been made in earlier years.
This narrow approach to the register came under attack from a number of quarters. Critics in parliament pointed out that of the twenty-one countries that reported to the register in 1995, only South Africa announced that it would withhold information on client confidentiality grounds.128
81 Commission of Inquiry, First Report, p. 4.
82 Krish Naidoo, "An interview with Aziz Pahad, Deputy Minister of Foreign Affairs," Salvo (January 1997), p. 5.
83 "Guide to the Terms of Reference," pp. 6-8. The 1999 white paper on defense-related industries called for "critical rules and obligations" relating to end-user certificates to be elaborated in the Conventional Arms Control Bill. The July 2000 CAC Bill only included a vague provision on end-user controls, and it remains to be seen if the topic will be addressed more fully in the revised version of the legislation.
84 Human Rights Watch interview with Stanislas Nakaha, ambassador of Burundi to Kenya, Nairobi, August 17, 1996.
85 Chairman of the NCACC correspondence with Human Rights Watch, Pretoria, September 17, 1999.
86 White Paper on Defence, chapter 8, para. 20, www.polity.org.za/govdocs/white_papers/defencewp.html.
87 Human Rights Watch interview, Cape Town, February 2, 1999.
88 Human Rights Watch interview, Pretoria, January 29, 1999. In a deal that may reflect the transfer of the trucks, which were said to have been donated, South Africa supplied Namibia with R.5,282,000 (U.S.$961,300) worth of military support equipment in 1998. Directorate of Conventional Arms Control, "South African Export Statistics for Conventional Arms: 1997-1999," March 2000, www.mil.za/sandf/dro/ncacc/ncacc.htm.
89 Human Rights Watch/Arms, "Sudan. Global Trade, Local Impact," A Human Rights Watch Short Report, vol.10, no.4 (A), August 1998, p. 19.
90 Human Rights Watch interview with a South African government official, Pretoria, January 29,1999.
91 White Paper on Defence, para. 20.
92 Human Rights Watch interview, Cape Town, February 3, 1999.
93 A review of South African press sources available online showed that no such denunciation had been reported by the major South African media as of September 2000.
94 Both Kader Asmal and Captain Fred Marais, head of the Directorate of Conventional Arms Control declined to name the countries involved. Captain Marais added that the incident was neither serious nor recent and emphasized that the South African government was pursuing the matter through diplomatic channels. SAPA, December 15, 1999.
95 Bonile Ngqiyaza, "Asmal Lays Down Law on Arms Purchasing," Business Day, December 17, 1999.
96 Henry Ludski, "Finally, SA Within Sight of Malaysian Arms Deal," Sunday Times (Johannesburg), September 10, 2000.
97 Human Rights Watch interview, Pretoria, January 29, 1999.
98 "Regional Conference on Arms Export Controls Ends," World News Connection, December 15, 1999.
99 Cameron Commission, First Report, p. 14.
100 White Paper on Defence, chap. 3, para. 8.
101 "Arms manufacturer lays charges against three newspapers and a journalist for publishing details of an arms deal," Freedom of Expression Institute, July 22, 1997, at www.fxi.org.za/alerts/1997/aldenel.htm.
103 The exchange took place on July 25, 1997, at a conference organized by International Alert and the Centre for Conflict Resolution Conference on "Light Weapons and Peacebuilding in Central and East Africa," from July 23-25, 1997, in Cape Town. See also Rehana Rossouw and Marion Edmunds, "Asmal names mystery arms client," Mail and Guardian (Johannesburg), August 1, 1997.
104 "SA in Danger of Losing Major Arms Deal, Says Modise," SAPA, August 7, 1997.
105 Media Advisory, "Transparency in Armaments Exports," July 23, 1997.
106 Barry Streek, "SA arms sales listed online," Mail and Guardian (Johannesburg), October 1, 1999. The website address is www.mil.za/sandf/dro/ncacc/ncacc.htm.
107 Directorate of Conventional Arms Control, "Product Categorization," available at www.mil.za/sandf/dro/ncacc/ncacc.htm.
108 Directorate of Conventional Arms Control, "South African Export Statistics for Conventional Arms: 1996-1998," and Directorate of Conventional Arms Control, "South African Export Statistics for Conventional Arms: 1997-1999."
109 Human Rights Watch interview, Pretoria, January 31, 1999.
110 Human Rights Watch interviews with government officials, Pretoria, January 28 and 29, 1999.
111 Laurie Nathan, "With Open Arms? South Africa's New Policy on Arms Export Transparency," Sunday Independent, July 27, 1997, and Laurie Nathan, "Comment on the Open Democracy Bill with Reference to National Security, Defence and Arms Trade," Commissioned by the Ceasefire Campaign for submission to the Portfolio Committee on Justice, August 14, 1998, p. 18.
112 Human Rights Watch interviews with government officials, Pretoria, January 28 and 29, 1999.
113 Nicholas Clive Sendall, "Transparency and the Management of Defence Information," A research report submitted to the Faculty of Management, University of the Witwatersrand, Johannesburg, in partial fulfillment of the requirements for the degree of Master of Management, Johannesburg, 1997, p. 35; and Human Rights Watch interview with Nicholas Clive Sendall, Pretoria, February 8, 1999.
114 Media Advisory, "Transparency in Armaments Exports."
115 Human Rights Watch interview, Cape Town, February 3, 1999.
116 Human Rights Watch interview, Cape Town, February 2, 1999.
117 Human Rights Watch interview with Terry Crawford-Browne, representative of the nongovernmental Coalition for Defence Alternatives, Cape Town, February 4, 1999.
118 Human Rights Watch interview with Richard Calland, representative of the nongovernmental parliamentary monitoring group Idasa, Cape Town, February 3, 1999.
119 Human Rights Watch interviews with Richard Calland and Terry Crawford-Browne, Cape Town, February 3 and 4, 1999.
120 Human Rights Watch interview, Cape Town, November 18, 1999.
121 It seems unlikely that the NCACC's work would be made subject to these controls after passage of legislation granting it legal status, since it is proposed to remain a committee of cabinet.
122 Promotion of Access to Information Act (No. 2 of 2000), section 41(1).
123 Ibid., section 41(2)(b).
124 Ibid., section 36(1).
125 Ibid., section 46.
126 In 1998 a total of ninety-seven states, including some of the world's major arms suppliers, submitted data on their import and export of weapons to the U.N. register. Human Rights Watch, World Report 2000 (New York: Human Rights Watch, 1999), p. 409.
127 Media Advisory, "Transparency in Armaments Export."
128 Human Rights Watch interview with James Selfe, Democratic Party parliamentarian, Cape Town, February 2, 1999.