DISASTROUS ARMS CONTROL BILL OMITS HUMAN RIGHTS CRITERIA

Summary

The long-awaited Conventional Arms Control Bill was recently introduced in Parliament. The Bill will formally establish the National Conventional Arms Control Committee (NCACC) and empower it to regulate the import and export of conventional weapons. Unfortunately, this vital Bill fails to entrench in law the current--and largely ignored--guidelines that oblige the NCACC to consider human rights and security issues in the country of destination when issuing export permits. Moreover, the Bill has almost completely escaped public scrutiny thus far. Concerned Christians are urged to fax the Portfolio Committee on Defence to stress the need for full public hearings on the legislation.

Legislative history

Prior to April 1994, the state arms manufacturer, Armscor, was responsible both for marketing arms and for issuing export permits. The democratic government decided that the Department of Defence should assume responsibility for export licensing. Meanwhile, President Mandela established the Cameron Commission of Inquiry into the Arms Trade to investigate certain abuses within the arms trade and to recommend to Cabinet on new policies to control arms exports. The Commission's second report, published in November 1995, recommended that South Africa's arms export policy should be based on responsibility and restraint. It proposed a code of conduct for arms sales and envisioned a parliamentary role in the oversight of arms exports.

These themes were reiterated in the White Paper on Defence, which was approved by Parliament in May 1996. Chapter 8 of the White Paper contains a detailed list of principles should govern South Africa's involvement in conventional arms trade. The government made a general commitment to exercising responsibility and restraint in the transfer of convention arms. Specifically, it pledged to ensure that arms exports did not violate the purposes or principles of the United Nations Charter by taking explicit account of (among other factors) the recipient country's human rights record, the security situation in the recipient country and surrounding region, and the extent to which the sale would divert resources from developmental needs.

These principles were subsequently adopted by the National Conventional Arms Control Committee, established in 1996 under the chair of then-Water Affairs and Forestry Minister Kadar Asmal to review applications for arms export permits. However, legislation has been required to give legal recognition to the NCACC and its role. A four-year wait culminated in the introduction of the Conventional Arms Control Bill at the end of July.

Areas of concern

Although the long-awaited entrenchment of the NCACC must be welcomed, the Conventional Arms Control Bill falls alarmingly short of expectations in a number of respects.

Export criteria

It was widely believed that the Conventional Arms Control Bill would give legal force to the export criteria contained in the Defence White Paper and approved by the NCACC. Indeed, the 1999 White Paper on the South African Defence Related Industries explicitly identifies this as one of the key objectives of forthcoming arms control legislation. However, the Bill contains no such criteria. Instead, the Bill vaguely requires the NCACC to "implement government policy regarding conventional arms control", to "conform to international law" and to "protect and promote the Republic's economic and national security interests by facilitating trade in conventional arms" in accordance with that policy. (Sec. 3) The principles of responsibility and restraint are not spelled out in the Bill.

End-user certificate

The Cameron Commission and the White Papers on Defence and Defence Related Industries all endorsed the idea that arms should not be exported unless the importing state has signed an End-User Certificate pledging that it will not re-export the arms received without the permission of the South African government. This is intended to prevent countries which would be prohibited from buying arms directly from South Africa from doing so via a third party. The Bill contains only the much less rigorous requirement that a recipient country give an undertaking of accountability "in accordance with international practice".

Parliamentary oversight

The Cameron Commission called for Parliament to be empowered to veto any prospective arms export on the recommendation of a new parliamentary committee on arms control. The subsequent defence White Papers envisioned a parliamentary oversight role, although in less detail. The Bill simply obliges the NCACC to make regular reports to Parliament on the control and regulation of conventional arms, but specifies no further parliamentary powers.

Interaction with Firearms Control Bill

The Conventional Arms Control Bill defines "conventional arms" as excluding small arms regulated in terms of the Arms and Ammunition Act, 1969. This Act is likely to be replaced shortly by the Firearms Control Bill currently before the Portfolio Committee on Safety and Security. The current version of the Firearms Control Bill omits an earlier requirement that the NCACC approve export permits issued in terms of the legislation. Instead, the Registrar of Firearms is responsible for issuing permits for the import and export of small arms. Neither piece of legislation distinguishes clearly between weapons being exported to a private buyer or to a foreign government. Poor coordination between the two bills may create a number of loopholes. For example, the export of small arms to a foreign government may occur outside the purview of the NCACC.

Process and consultation

To date, the Conventional Arms Control Bill has completely escaped public scrutiny. No draft version was published for comment. Only the NCACC and the Department of Foreign Affiars were consulted during drafting. Now the Portfolio Committee on Defence is being asked to approve the legislation on such an abbreviated schedule that it will preclude any opportunity for public hearings.

What we can do

The Portfolio Committee on Defence has already raised serious questions about the Bill. However, the committee review should not pre-empt public comment, especially since no such opportunities for comment have been permitted to date. Public hearings would undoubtedly strengthen the committee's objections and prevent the over-hasty enactment of this crucial legislation.

Please write to the Chair of the Portfolio Committee on Defence. Thank her for raising concerns about the Conventional Arms Control Bill and urge her to schedule public hearings on the Bill as soon as possible. You may wish to state some of your own reservations about the Bill as a way of emphasising the need for a broader public debate.

Send your letters to:
Hon. Thandi Modise
Chair, Portfolio Committee on Defence
National Assembly
P.O. Box 15
Cape Town
8000

If possible, fax your letter to her on (021) 462 2153.

For more information

The Conventional Arms Control Bill the 1996 White Paper on Defence and the 1999 White Paper on Defence Related Industries are all available on the Web.

For more information, please contact the SACC Public Policy Liaison Office.