COMMENT ON THE NATIONAL CONVENTIONAL ARMS CONTROL BILL

Submission to the Parliamentary Defence Committee

Laurie Nathan

October 2001

Introduction

The attacks on the United States on 11 September have focussed global attention on the urgent need to eradicate terrorism. The most pervasive and cumulatively damaging form of terror worldwide is repression by states against their own citizens. It is therefore imperative that South Africa and other arms exporting countries refrain from supplying armaments to repressive regimes.

Armaments constitute a special category of goods because they are designed for the use and threat of force. They can be employed not only for legitimate defence and security but also for repression and aggression. Arms trade can provoke and heighten regional instability and conflict, contributing to massive destruction of life and property. Excessive accumulation of arms diverts resources from socio-economic development and thereby undermines human security.

Arms exports consequently entail inescapable moral choices for supplier states. If these states sell weapons to repressive or aggressive regimes, they bear a measure of culpability for the damage caused by their weapons. Arms suppliers often seek to justify inappropriate exports on the grounds that if they do not sell the weapons, someone else will. The premise that one can do wrong because others will do so anyway is legally and ethically untenable.

In light of the above, arms export legislation should be based on the principles of responsibility and restraint. These principles flow from the Constitution (1994) and are endorsed explicitly in the sections on arms exports in the White Paper on Defence (1996) and the White Paper on the South African Defence Related Industries (1999).

In several respects the National Conventional Arms Control Bill (hereafter `the Bill’) deviates from the provisions of these White Papers and compromises the principles of responsibility and restraint. This memorandum highlights the key problems and proposes amendments accordingly. Proposed amendments appear in italics; proposed additions are underlined and proposed deletions are struckthrough. A list of the amendments appears in Appendix 1.

The Bill has been amended in response to parliamentary and public criticism in September 2000. It contains several significant additions to the original draft: the inclusion of dual-use goods (section 1(vii)); guiding principles and criteria relating to human rights, international law and peace and stability (section 15); provisions on end-user certificates (section 17); provisions on conflict of interest (section 25); and extraterritorial application of the legislation (section 26).

Preamble

The Preamble only considers the right of states to self-defence, ignoring the problem of repression and the necessity for responsibility and restraint. It should be amended as follows:

"Since the adequate protection of rights to life and security of the person against repression and acts of aggression is fundamental to the well-being and to the social and economic development of every country;

And since it is the duty of every government to protect and safeguard the rights of its people;

And since every responsible country has the right to acquire arms to equip itself against act of aggression;

And since the Republic is a responsible member of the international community and will not export arms to states engaged in repression, aggression or terrorism;

And since the Republic is playing an increasingly important role in the manufacturing and export of conventional arms;

And since it is vitally important to ensure accountability in all matters concerning conventional arms and services provided in connection with conventional arms;"

Objects of the Committee

The objects of the National Conventional Arms Control Committee (NCACC), the cabinet committee responsible for arms control, do not reflect adequately South Africa’s declared commitment to responsibility and restraint in arms exports.

Section 3(a)(i) should be amended as follows: "The objects of the Committee are to implement government policy…. which conforms to international law, norms and practices and the guiding principles and criteria contained in section 15".

Section 3(b) should be amended as follows: "The objects of the Committee are to protect and promote the economic and national security interests of the Republic by facilitating ensuring adequate control of trade in conventional arms…".

Whatever the nature and extent of government’s facilitation of arms trade, such facilitation is not the function of the NCACC. The function of the NCACC and the purpose of the Bill are to ensure control of arms trade.

Parliamentary oversight

Decision-making on arms exports should be subject to the constitutional imperatives of executive accountability and parliamentary oversight. The application of these fundamental principles of democracy would help to ensure respect for human rights and regional and international peace and security.

In this regard, the Bill simply provides that the NCACC must "make quarterly reports to the Cabinet and a committee of Parliament determined by Parliament concerning the control and regulation of conventional arms…" (section 4(g)).

The Bill should specify more precisely the content of these reports and the powers of Parliament. It should provide as follows in relation to retrospective parliamentary review:

For the purpose of review and comment by the parliamentary committee, the quarterly reports must provide the name of the importing state and the type, quantity and value of all arms exports approved by the NCACC in the preceding quarter.

Retrospective review of arms exports is a weak form of oversight. The Bill should therefore also provide that the NCACC will present quarterly reports of pending exports to the parliamentary committee. Cabinet adopted this position in 1997 but has not implemented it. As occurs in Sweden, Parliament should at least be empowered to play an advisory role in relation to pending exports:

The NCACC must also provide the parliamentary committee with quarterly reports on all pending arms exports that are viewed favourably by the NCACC. The committee may recommend that the NCACC reject an export deemed inconsistent with the principles and criteria contained in section 15.

As occurs in the United States, the strongest form of oversight would be to empower Parliament to veto pending exports deemed inconsistent with the Bill:

The parliamentary committee may, within a stipulated period, refer to the National Assembly any pending arms export deemed inconsistent with the principles and criteria contained in section 15, and the National Assembly may, within a stipulated period, veto that export.

Chairperson of the NCACC

In order to avoid conflicts of interest and promote restraint, the Cameron Commission proposed that the NCACC should be chaired by a Minister who does not have a line function interest in selling arms. This principle was accepted by Cabinet and endorsed in the White Paper on Defence and the White Paper on the Defence Related Industries.

Section 5(3) should be amended accordingly: "The President must designate one member of the [NCACC] as the chairperson and another as the deputy chairperson, such members being Ministers who do not have a line function interest in arms exports".

Guiding principles and criteria

The guiding principles and criteria (section 15) do not capture adequately the principles of responsibility and restraint, and should be amended as follows:

"When considering applications contemplated in section 14 the Committee must-

  1. avoid contributing to internal repression, including the systematic violation or suppression of human rights and fundamental freedoms, and avoid arms transfers to countries that systematically violate or suppress human rights and fundamental freedoms;
  2. avoid arms transfers that contribute to the escalation of regional conflicts, endanger peace by introducing destabilising military capabilities into a region, or otherwise contribute to regional instability and negatively influence the balance of power avoid endangering regional and international peace and stability by introducing destabilising military capabilities into a region, which could aggravate or prolong any existing armed conflicts;

(h) consider the commitment of the recipient country to, and their record of compliance with, End User Certificate undertakings avoid arms exports to countries that have violated an End User Certificate undertaking;

  1. avoid arms exports that may be used for purposes other than the legitimate defence and security needs of the recipient country; take into account the inherent right of individual and collective self-defence of all sovereign countries in terms of the United Nations Charter"

All of the above amendments are drawn directly from the White Paper on Defence. The amendment to paragraph (c) arises from the parliamentary defence committee’s insistence in 1996 that the White Paper on Defence should not only ban arms exports that might contribute to human rights abuses but should also ban exports to any country that systematically violates human rights.

The amendment to paragraph (d) is required because the current formulation in the Bill focuses only on "existing armed conflicts". The amended formulation includes "regional instability" and "endangering peace".

The amendment to paragraph (h) is required because end-user certificates are pointless if importing states are able to violate their undertakings with impunity.

In light of section 15, section 14(3)(d) should be amended as follows: "The Committee may… cancel, amend, suspend or withdraw the permit in the interest of maintaining and promoting international peace adhering to the principles and criteria contained in section 15".

Transparency

The Bill requires the NCACC to ensure that the conventional arms control process is "transparent" (section 3(a)). However, the provisions on disclosure of information emphasise confidentiality (section 23). Section 23(1) prohibits disclosure of information where this would be "detrimental to the national interest or the security of the Republic or to the commercial interests of the manufacturer, or otherwise, without the written authority of a competent authority". The formulation is so broad that it would prohibit the present public hearing on the Bill convened by the parliamentary defence committee!

Section 23(1) is inconsistent with the principles of executive accountability, parliamentary oversight and open government, which require transparency and adequate provision of information on matters of public concern. It is inappropriate that Parliament and citizens learn about South African arms exports from human rights groups and the press rather than from their own government. Further, individual and institutional misconduct flourish in conditions of secrecy.

Section 23(1) is inconsistent with the White Paper on Defence, which provides that "the principle of openness and transparency relating to arms trade shall apply. This will be limited only by national security interests consistent with the need for confidentiality" (chapter 7). As indicated below, the Bill is also inconsistent with Cabinet policy on "transparency in armaments exports".

Section 23(1) is inconsistent with broad international agreement that greater transparency in arms trade would strengthen regional and international peace and security and contribute to restraint in military production and arms transfers. This was the motivation for establishing the UN Register of Conventional Arms, endorsed by South Africa through its participation in the Register.

In short, Section 23(1) is inconsistent with the NCACC’s object of "foster[ing] national and international confidence" in South Africa’s arm control procedures (section 3(c)). Section 23(1) should therefore be replaced with the following:

South Africa will comply with the annual reporting requirements of the United Nations Register of Conventional Arms.

At the end of the first quarter of each year, the NCACC must present to the parliamentary committee and release to the public an annual report on arms exports approved during the preceding calendar year.

On a quarterly basis, the NCACC must present to the parliamentary committee a report on arms exports concluded during the preceding quarter and a report on pending exports viewed favourably by the NCACC.

The reports referred to above must include the name of the importing state and the type, quantity and value of the arms exports in question. Information on the technical specifications of the arms may be withheld in order to protect military and commercial sensitivities.

No person may disclose any other information concerning the business of the NCACC without the permission of a competent authority or as required in terms of the Promotion of Access to Information Act (2000).

The annual reports released by the NCACC do not indicate the type of arms exported in the previous year. The exports are merely described by way of general category (e.g. "sensitive", "non-sensitive" and "non-lethal" equipment).

There are many problems with this position. First, it is considerably weaker than that of a number of other democratic countries (see Appendix 2). Second, it deviates from Cabinet policy, which provides that the NCACC will disclose to the public a "description of the item [to be exported] at the highest level" and will disclose to Parliament "a full description of the equipment under export".

Third, the UN Arms Register requires countries to submit detailed descriptions of their imports and exports of armaments in seven designated categories. Since the country submissions become public documents, it is completely illogical for government to refuse to release to Parliament and the public the same level of detail in relation to exports or imports of other categories of armament.

Fourth, the NCACC’s classification system is wholly inappropriate because the sensitivity of arms depends on their use and on the political and military context of the importing state. By way of example, the NCACC defines riot control products as "non-sensitive" but they are highly sensitive if sold to a repressive regime. The classification system should therefore be abandoned.

Offences and penalties

The unauthorised import and export of armaments undermines statutory arms control systems and contributes to repression, terror and murder. The penalties provided for in section 24(2) should therefore be strengthened through the following additions:

Any individual who is involved in the unauthorised import or export of arms and is aware or should have been aware that such import or export was unauthorised shall be liable on conviction to a mandatory term of imprisonment for a period not exceeding 20 years (as in Germany).

Any company that is involved in the unauthorised import or export of armaments shall on conviction be prohibited by the Minister from importing, marketing and exporting arms for a period of up to 20 years (as in the US).

Disclosure of interest

Sections 25(1) and (2) address the situation where a member of the NCACC, a subcommittee, the secretariat or the inspectorate has a pecuniary or other interest in any matter which could conflict with the proper performance of his or her duties in terms of the Act.

In contrast, section 25(3) inexplicably excludes members of the NCACC and its subcommittees. It should be amended as follows: "A member of the Committee, a subcommittee, the secretariat or inspectorate who has disclosed a conflict of interest in terms of subsection (1) must be relieved of the duties in question and such duties must be performed by another member of the Committee, subcommittee, secretariat or inspectorate, as the case may be, who has no such conflict of interest".

Centralised control over arms exports

The export of conventional arms, small arms and weapons of mass destruction should be regulated by a single Act and be subject to a unified control system. According to Armscor officials, a decentralised system leads to breakdowns in control, policy inconsistencies and manipulation by unscrupulous arms dealers.

The White Paper on the Defence Industries notes with concern the "fragmentary" nature of arms control. Control over different types of armament resides with four ministers and is regulated by six Acts with "duplicate and overlapping responsibilities" (chapter 6). As a result, "the NCACC has taken the decision to integrate national arms control structures, thus harmonising current arms control legislation, structures and processes into one process" (chapter 6).

The Bill ignores this position and retains a fragmentary control system. It excludes weapons of mass destruction as well as small arms that are "regulated in terms of the Arms and Ammunition Act, 1969" (section 1(iv)).

If South Africa seeks to avoid contributing to repression, civil wars and terrorism, it makes little sense to exclude the export of small arms and ammunition from the purview of the NCACC and Parliament. The export of small arms, which are the weapons of choice in most civil wars, is now covered by the Firearms Control Act (2000). This Act does not include the guiding principles and criteria contained in section 15 of the National Conventional Arms Control Bill.

The Bill should provide for a centralised arms control system that is administered by a single arms control agency under the direction of the NCACC.