- This topic is empty.
Viewing 1 post (of 1 total)
-
Posts
-
Supreme Court declares South African arms exports to war-torn Myanmar illegal-Ronelle Snyders
The ruling could have a direct implication for South Africa’s arms exports to Saudi Arabia and the United Arab Emirates, which are accused of committing war crimes in Yemen.
The Gauteng division of the High Court in Pretoria on Friday, 19 July, set aside a decision by the National Conventional Arms Control Committee (NCACC) to authorise arms sales to war-torn Myanmar, in an order that has wider implications for South Africa’s arms trade.
“The NCACC’s decision(s), purportedly taken during the fourth quarter of 2021, to authorize the issuance of an export permit (or permits) relating to the transfer of controlled items to Myanmar, are being reviewed and set aside,” acting Justice Mentz said in her ruling.
The court’s ruling concerns an application brought by the Southern Africa Litigation Centre (Salc), represented by Lawyers for Human Rights (LHR), in October 2022, which seeks the review and setting aside of permits granted by the NCACC to facilitate arms transfers to Myanmar.
Salc argued that South Africa exported weapons to Myanmar between 2017 and 2021, “despite having knowledge of the serious human rights violations, possible violations of the Genocide Convention and a military coup”.
Such arms transfers, Salc argued, violated provisions of the National Conventional Arms Control Act (NCAC) and international law.
Salc, in its application before the high court, further requested an injunction requiring the NCACC to suspend arms transfers to countries involved in coups, war crimes, genocide or crimes against humanity. Under section 14(3) of the NCAC Act, the NCACC is required to cancel, amend or suspend a permit “if it is in the interest of maintaining and promoting international peace or avoiding repression and terrorism”.
The court on Friday granted Salc the relief it had requested, stating that the NCACC had an obligation, under section 14(3) of the Act, to “transfer any existing contracting and/or export permit related to the transfer of controlled items to a country that has experienced an unconstitutional change of government; and/or is reasonably suspected by suspending any crime against humanity, war crime, or genocide by a special rapporteur, independent expert, or other person operating under a mandate of the United Nations. .
According to the order, the NCACC must suspend its permits for exports to any such state that meets the criteria set forth in the order — meaning that for the duration of the suspension, no weapons can be exported thereto. Importantly, if the NCACC were to continue arms exports to countries that meet these criteria, it could be found in contempt of court.
This could have direct implications for South Africa’s arms exports to Saudi Arabia and the United Arab Emirates (UAE), which are accused of committing war crimes in Yemen.
Yemen has been in crisis since 2014, when militants overthrew the government. In response, a Saudi and UAE-led coalition launched a scorched-earth military campaign in support of the ousted president by bombing civilians, schools and health care facilities.
More than 18.2 million out of a population of 35 million in Yemen require humanitarian aid, but funding has plummeted as donors turn their attention to other crises, including Russia’s invasion of Ukraine and the war in Gaza.
A 2021 report by the NGO Open Secrets argued that South Africa had contributed to the war crimes in Yemen. South Africa has approved arms exports worth about R9.2 billion to Saudi Arabia and the UAE since 2015, when the two nations launched their military invasion of Yemen along with seven other countries.
The sale of South African weapons to Saudi Arabia and the UAE – and many other countries – is detailed in the NCACC’s annual reports to parliament. The latest report, covering 2023, shows that the NCACC has approved sending armoured combat vehicles, light weapons and ammunition worth R47 million to the UAE. Sales to Saudi Arabia included armoured combat vehicle warning systems worth R81 million.
The 2023 NCACC report also includes information on arms sales to the Democratic Republic of Congo, Egypt, Burkina Faso, Mali, Kenya, China and Germany, among others.
Salc and the LHR, along with activist organisation Justice For Myanmar, welcomed the High Court’s order, saying in a statement that “this will have immediate consequences not only for any future arms export from South Africa to Myanmar but also to many other countries”.
Myanmar arms trade
In its founding affidavit filed before the high court, Salc said, according to the NCACC’s annual reports to parliament, the national arms regulator authorized the export of conventional weapons worth more than R215 million to Myanmar between 2017 and 2020.In 2016 and 2017, Myanmar’s military began carrying out violent operations against the Rohingya Muslims, leading to serious human rights abuses in the country, allegations of genocide against the Rohingya minority group, and forcing hundreds of thousands to flee to neighboring Bangladesh.
The military campaign is the subject of a genocidal case before the International Court of Justice (ICJ), after Gambia filed legal action against Myanmar in 2019, accusing it of violating the United Nations (UN) Genocide Convention.
Myanmar’s military staged a coup in February 2021, killing and capturing opponents and attacking civilians. The NCACC annual report covering 2021 shows that SA’s arms regulator approved the export of “communications equipment” worth R47 million to Myanmar in 2021.
According to Salc’s founding affidavit, the first three quarterly reports for 2021 show no authorization of arms exports to Myanmar, meaning the NCACC authorized exports in the fourth quarter of 2021, following the February 1 coup.
This was contrary to South Africa’s foreign policy stance on Myanmar at the time. In June 2021, South Africa voted in favour of a UN General Assembly resolution calling for an arms ban on Myanmar from UN member states.
In a statement by the Department of International Relations and Cooperation (Dirco) on 1 February 2021, the department said: “South Africa will continue to support the people of Myanmar in their pursuit of democracy, peace, human rights and the rule of law.”
The NCACC annual reports show South Africa has not shipped weapons to Myanmar since 2021.
In the statement Friday, Salc’s leader of international justice grouping, Dr Atilla Kisla, said: “Arms exports to a country that violates human rights and that has undergone a military coup are illegal.
“This order is crucial to create a more responsible and accountable arms trading regime in South Africa. It shows that human rights and international law are limiting factors for arms exports. The example of Myanmar illustrates that words of condemnation or concern are not sufficient. Fighting for human rights requires action in the form of enforcing the law and suspending and/or canceling permits if necessary.”
Justice for Myanmar spokesman Yadanar Maung said the organization welcomed the Supreme Court’s ruling, “as it protects the people of Myanmar by explaining that such arms transfers are not in accordance with domestic and international law. Such permits should never have been approved in the first place.”
Salc’s Supreme Court application was unopposed. The chairman of the NCACC, the secretary of defense and military veterans and the president were all respondents in the case.
The court ordered the chairman of the NCACC and the minister of defense to pay the costs of the application.
When Daily Maverick contacted the Defense Department and the Presidency for comment, it was referred to the NCACC’s chief secretariat, advocate Ezra Jele, and the Deputy Minister of Communications and Digital Technology, Mondli Gungubele, who is the NCACC chairman, for comment.
Jele told Daily Maverick he was “unaware of this court ruling”.
“A proper study of that ruling will be obtained to provide a proper response,” he said.
Gungubele has not yet responded to a request for comment. DM
Viewing 1 post (of 1 total)
- You must be logged in to reply to this topic.