The South African government has made remarkable strides in transforming its arms export policy since the African National Congress (ANC) assumed power following multiracial elections in April 1994. Nevertheless, in important respects, the transformation of the arms control regime in South Africa is incomplete. In practice, the government's arms export decisions have not consistently reflected the ethical principles and policies that it has proclaimed. Much remains to be done, therefore, to institutionalize and provide a statutory backing for the framework set out in policy statements, and thereby to ensure that the guidelines are as strong in practice as they are in principle.
By 1994 South Africa had established itself as the tenth largest arms producer in the world, with approximately 800 arms and arms component manufacturers employing a workforce of 50,000 (down from 160,000 in the 1980s). Exports accounted for about one percent of the global arms trade, or the equivalent of sales in excess of R.800 million (U.S.$225,000).1 At the same time, the need for secrecy arising from the imposition of international sanctions against the apartheid regime that was in power until 1994, South Africa's growing isolation during that period, and the instability of the southern Africa region had fostered a siege mentality in an industry whose apartheid-era arms exports mirrored the immorality of domestic policy. Armscor, the state-owned arms exporter, was virtually given a free hand in pursuing lucrative markets that often turned out to be located where gross human rights abuses were taking place.
With the inauguration of a democratic, ANC-led government in May 1994, headed by President Nelson Mandela, the international arms embargo against South Africa was lifted. As in other areas of government responsibility, there were great expectations that the post-apartheid government would adopt a new and ethical foreign policy, including responsible arms trading practices. Then, four months after the Mandela government took office, in September 1994, an arms-related scandal led the government to appoint a commission of inquiry, known as the Cameron Commission. The Commission was mandated to investigate South African arms exports and propose policy reforms, in conformity with the new South African constitution and the stated commitment of the ANC to a foreign policy in which human rights criteria should play a central role.
In August 1995, following wide-reaching recommendations made by the Cameron Commission, South Africa's cabinet approved an interim arms control policy that spelled out the principles and criteria for national arms export decisions, which included a strong human rights plank. The government also created an interdepartmental cabinet committee to implement the policy, the National Conventional Arms Control Committee (NCACC), and approved Kader Asmal to be its chair. Then minister of water affairs and forestry (he became minister of education in 1999), Asmal had been a prominent anti-apartheid figure and constitutional law professor while in exile. The principles and norms of the new arms trade policies were also incorporated into white papers on defense and on defense-related industries, published in 1996 and 1999 respectively.
Despite these initiatives, South Africa's policy orientation and institutional changes have not yet been formalized in law and the governing legislation on the arms trade remains the apartheid-era Armaments Development and Production Act of 1968 (the Armscor Act). In 1998, the government began work on new legislation that would replace the Armscor Act and give statutory effect to the work of the NCACC, but the bill, known as the Conventional Arms Control Bill, was only presented to parliament in mid-2000. The proposed legislation unfortunately fell seriously short of the political commitments made in the earlier white papers to adopt a code of conduct, and strongprotest from nongovernmental groups forced its withdrawal for redrafting. Meanwhile, official practice has also in important respects failed to match the high standards to which the government has committed itself.
South Africa's policy commitments, as formulated by the cabinet, are far-reaching. They include an explicit pledge not to supply weapons to parties that systematically violate or suppress human rights.2 Further, South Africa has committed itself to refrain from transferring arms that would be likely to be used to violate human rights or suppress fundamental freedoms, even where persistent abuses have not been established. Moreover, under its policy South Africa undertakes to avoid arms exports that risk escalating regional conflict or contributing to regional instability, and promises to carefully consider other factors, such as internal armed conflict or tensions in a recipient country, when weighing arms export decisions. In its policy guidelines, South Africa also gives assurances that it will exercise restraint with regard to its arms transfers, including by taking into consideration general human rights conditions in the recipient country and the existence of internal or regional tensions or armed conflict.
South Africa has, in accordance with these policies, refused to sell arms to a number of governments that would have been willing purchasers, including, for example, the former Nigerian military regime under Gen. Sani Abacha. However, South Africa's choice of some of its arms customers has revealed a gap between the principles professed by the NCACC and practice, which appears to be based more on considerations of realpolitik and economics. For example, as the Commonwealth Human Rights Initiative, a nongovernmental organization, has reported, five of the top ten destinations for South African arms exports between 1996 and 1998-India, Colombia, Pakistan, Congo-Brazzaville, and Algeria-had experienced some form of conflict during the same period. In addition, South Africa provided military assistance and weapons in 1998 to several of the major participants in the war in the Democratic Republic of Congo (DRC), a conflict marked by widespread, gross human rights abuses.
Sales to some of the belligerents in the DRC contravene the South African government's stated guidelines on human rights, and all such sales contravene its policy commitment to avoid weapons sales that risk contributing to the escalation of regional conflicts. In the case of Rwanda, for example, South African policy has apparently subordinated human rights criteria to political considerations. The Rwandan government is involved in the war in the DRC and is also accused of human rights abuses against its own citizens as it responds to the threat posed by rebels within its borders. The South African government had suspended the sale of weapons to Rwanda in 1996 over fears that South African arms might be used by Rwandan forces to commit abuses. It backtracked, however, in July 1997 and gave the green light to transfers despite a flare-up in the fighting in western Rwanda and the involvement of Rwandan troops in a series of atrocities. South Africa supplied weapons to Rwanda in 1998 as well, before deciding later that year to suspend sales of lethal military equipment to all the countries engaged in the DRC war.
South African officials insist that human rights remain a key consideration in their country's arms exports, but that they constitute only one ingredient of policy decisions. Others, they say, include regional stability and a regional balance of power, but attention to these factors may be inconsistent with human rights concerns. Human Rights Watch believes, therefore, that such considerations should not be used to justify weapons sales that endanger human rights. Providing military support or materiel to armed forces that have a record of committing serious human rights abuses and violating international humanitarian law inevitably furnishes such groups with the tools with which to continue abusive practices. It also suggests outside support for their behavior, thus fostering a dangerous culture of impunity. Moreover, Human Rights Watch contends that South Africa should fully abide by the responsible arms export policy to which it has pledged its commitment and be held publicly accountable when it fails to do so consistently.
As part of the post-apartheid arms control regime, the South African government has taken important steps to enhance accountability by greatly increasing the transparency of its arms export decisions, but here too it needs togo further. In 1995 South Africa submitted its first report to the United Nations (U.N.) register for conventional arms transfers (which publishes information offered voluntarily by governments on seven major weapons categories). However, the government's participation in the U.N. register came with an important restriction: it reserved the right to withhold reporting arms exports when necessary to protect client confidentiality. In 1997 South Africa began separately to publish annual reports on its arms transfers, which also came with significant caveats. For example, its annual reports include country destinations, but provide information on weapons transfers only in broad aggregates. This lack of specificity militates against full accountability. Weapons recipients who have the most at stake in keeping contracts confidential are often those with poor human rights records.
The degree of accountability is also limited. NCACC reports quarterly to the cabinet on arms transactions, but the government thus far has resisted the notion of allowing any decision-making or even an advisory role for parliament with respect to arms transfers. It also has yet to make good on its promise to create an independent inspectorate for defense-related industries that would ensure that the arms export control process is, at all levels, subject to independent scrutiny and conducted strictly in accordance with the principles, policies, and guidelines of the NCACC. Against this backdrop, challenges on human rights and transparency grounds to the government's arms transfer decisions have mainly come from nongovernmental organizations and the press.
In three areas, in particular, South Africa has taken a firm position consistent with its policies on human rights and international humanitarian law: banning antipersonnel landmines, curbing the spread and abuse of small arms, and reining in the activities of mercenaries. Human Rights Watch warmly welcomes South Africa's efforts in these areas. The Mandela government was one of the most active in promoting the global process that ultimately led to the signing in Ottawa in December 1997 of the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction (the Mine Ban Treaty). Both under Mandela and, since 1999, under President Thabo Mbeki, South Africa has also become a driving force in international efforts to contain the scourge of small arms, and has figured prominently among the so-called like-minded governments that have sought to introduce and improve legal self-restraint measures in the weapons trade. In line with a new constitutional provision that prohibits South African citizens from participating in armed conflict either nationally or internationally, on May 20, 1998, the government passed the Foreign Military Assistance Act, a law unique in the world, that limits and controls the activities of mercenaries. The proliferation of private security and mercenary companies has been a constant embarrassment for the South African government.
Human Rights Watch acknowledges the remarkable progress made by South Africa in adopting a set of human rights friendly policies in relation to arms transfers. At the same time, it believes that the South African government must urgently address the inconsistencies that have emerged between its arms export policies and practices, and deny all human rights abusers its weapons, the tools with which such abuses have been committed. In particular, Human Rights Watch believes four areas need attention. To help ensure that the rights its citizens enjoy in their own country are not assaulted elsewhere in the world, South Africa should:
a statutory framework for the current system of arms export control and
associated policy commitments;
* strengthen the capacity of government officials to provide human rights input into the process of decision making;
* increase the involvement of parliament and civil society in decisions relating to arms exports;
* make a greater commitment to full transparency.
To this end, Human Rights Watch offers the following recommendations:
To the Government
of South Africa
* Repeal the Armscor Act of 1968, and adopt new legislation inclusive of all the NCACC policy guidelines, principles, control measures, and mechanisms also defined in the White Paper on Defence and the subsequent White Paper on Defence Related Industries. The new legislation should include explicit provisions regarding the role of the NCACC chairperson, who should continue to be a cabinet level minister with no direct interest in the arms trade. It also should unify oversight of the arms trade under a single organization and ensure that the customs agency is granted membership in this body.
* In the interim, strictly adhere to the principles, control measures, and mechanisms contained in the White Paper on Defence and the White Paper on Defence Related Industries.
* Create an inspectorate general for defense-related industries with the clear mandate to ensure that all levels of the NCACC process are subject to independent scrutiny and are conducted strictly in accordance with the principles, policies, and guidelines of the NCACC, and the above-mentioned white papers. The inspectorate should also report regularly to the appropriate parties and parliamentary oversight bodies, as called for in the White Paper on Defence and the White Paper on Defence Related Industries, and monitor implementation of legislation (the Conventional Arms Control Bill) that, once adopted, is expected to provide a legal framework for South Africa's arms trade controls.
* Ensure that any arms transfers resulting from South Africa's participation in joint licensing and co-production agreements between South African companies and foreign partners strictly adhere to arms export criteria regarding human rights.
* Train human rights experts in the Department of Foreign Affairs and the customs agency to better understand the connection between human rights, international humanitarian law, and the arms trade.
* Report in full to the U.N. Register of Conventional Arms, without any reservation pertaining to client confidentiality.
* Provide the quantities and detailed descriptions of type of weapons in annual reports and statistics currently published by the Directorate of Conventional Arms Control. Report all completed transfers, irrespective of client confidentiality considerations.
* Grant parliament prior oversight of arms transfers, especially when these are directed to recipients with a record of human rights abuses.
* Publish the list of countries to which weapons transfers are proscribed.
* Consult the South African Human Rights Commission about the human rights implications of arms transfers.
* Make public those demarches issued by the government of South Africa against weapons recipients who have violated commitments not to divert or re-export weapons without authorization. In each case, also make public details of any responses and release a statement indicating the government's commitment to bar further weapons transfers to the named recipient.
* Work with other governments to develop standardized and difficult-to-forge end-user documentation, building on an effort initiated by Southeast European governments in December 1999.
* Prosecute violators of national and international arms trade regimes, particularly of U.N. arms embargoes. Prohibit convicted violators from engaging in arms transfers. Publish a list of companies, individual brokers, and/or countries barred from arms trade activities.
* Adopt nationally and promote at the international level adoption of a binding code of conduct on arms transfers that would prevent violators of human rights and international humanitarian law from receiving weapons. The code should also include a prohibition against trade in weapons with governments and military forces that deny access to humanitarian organizations and to governments and military forces that deny access to human rights monitors.
* Promote a regional register for small arms and light weapons production, import, and export, and support the creation of an international register for such weapons.
* Include arms trade issues in the periodic foreign policy reviews held by the Department of Foreign Affairs.
* Adopt legislation to ensure that legal constraints on access to information do not unduly limit transparency and public accountability with regard to arms transfers. Explicitly authorize legal challenges to the implementation of such regulations, including when information about arms-related transactions is required to demonstrate a breach of applicable law. Extend the provisions of the Promotion of Access to Information Act to the activities of arms trade control bodies, including the NCACC.
To the South
* Actively seek information on South African arms transfers from the government and nongovernmental organizations. Conduct quarterly reviews of the government arms trade based on the information thus acquired.
* Create a parliamentary committee with the specific mandate to oversee and review NCACC policies and practices.
To the states
of the Southern African Development Community
* Implement and enforce the Southern African Action Programme on Light Arms and Illicit Trafficking.
* Finalize negotiations and adopt a Firearms Protocol to combat illicit trafficking in firearms and otherwise stem their widespread availability and misuse.
* Adopt and implement strict legislation and controls on arms exports in accordance with the best available standard in the region.
* Create a regional register for small arms as described above.
To the International
* Provide funds and expertise to build capacity in southern Africa, especially with regard to the strengthening, implementation, and enforcement of arms exports laws and regulations and arms embargoes.
Our story has revolved around the exploits of [Armscor officials and foreign actors] involved in the Lebanon transactions... Hundreds, perhaps thousands, of people killed or hurt by South African weapons were intimately involved in the story. They had no voice in our inquiry and have no name in this report. Yet at all times in our investigation and subsequent deliberations, we have felt their presence like the burden of a shadow.
(Commission of Inquiry into Alleged Arms Transactions between Armscor and One Eli Wazan and other Related Matters, First Report, "Afterword," June 1995.)
Our morality as a democratic government dictates that we have to act in accordance with internationally accepted norms and standard....In our approach to the sale of arms, we are resolved to act responsibly. Arms are for the purpose of defending the sovereignty and territorial integrity of a country; not to undermine any considerations of humanity nor to suppress the legitimate aspirations of any community.
(Nelson Mandela, "Opening Address" at the
Defence Exposition of South Africa [DEXSA], Nasrec, November 22, 1994.)
1 All monetary figures have been converted to U.S. dollars using the exchange rates that prevailed at the time of the transactions. Most figures in this report relate to annual export totals, in which case the average exchange rate for the relevant year was used. The conversions were performed using an online currency converter, available at www.oanda.com/converter/fxhistory. 2 This pledge is consistent with Human Rights Watch's own position that no country should permit weapons transfers to armed forces that have a record of committing serious violations of international human rights or humanitarian law.