Note: SALC have clarified that the High Court ordered the NCACC to serve the notice of motion, founding affidavit and annexures on all entities that hold or have applied for permits enabling arms exports to Saudi Arabia and the UAE. This means that private arms companies can join proceedings if they wish to. The order will not result in a complete list of South African arms companies, nor will it reveal a complete list of arms companies that have supplied weapons found to have been used against civilians.
The order by Judge John Davis in the Gauteng High Court in Pretoria on 15 June prepares the way for further litigation between the trustees of the Southern African Human Rights Litigation Centre (SALC) and Open Secrets (OS) and the chairperson of the NCACC and the Minister of Defence.
Relief is being sought to set aside NCACC decisions authorising the issue of permits allowing trade in conventional arms with the Kingdom of Saudi Arabia and the United Arab Emirates. This, especially since the NCACC Act prohibits the transfer of arms to governments accused of human rights violations.
SALC and OS also want the NCACC to provide reasons for its decisions to issue these permits, also in violation of recommendations by a UN Panel of Experts.
The NCACC will now have to disclose all permit holders who have sold weapons to Saudi Arabia and the United Arab Emirates.
The two human rights organisations are seeking to have decisions by the NCACC to grant permits taken on review and to be declared unlawful.
An investigation by Open Secrets titled “Profiting from Misery – South Africa’s war crimes in Yemen” revealed that weapons produced in South Africa are awash in Yemen and being used by numerous parties in that war.
The report also exposed that when civil war broke out in Yemen in early 2015, South African arms companies exported weapons worth R2.81-billion to Saudi Arabia and R4.74-billion to the UAE. Both countries are involved in the conflict.
Key findings were that Saudi Arabia and the UAE have been among the biggest importers of South African munitions since 2014, and that approvals of exports to both spiked between 2015 and 2016 and made up 40% of all approved weapons exports from South Africa.
From 2016 to 2020, South Africa authorised the export of over 12 million controlled items to Saudi Arabia and the UAE, including armoured combat vehicles, heavy weapons, mortars and ammunition.
In so doing, the NCACC violated the UN Group of Experts’ call to cease transferring arms to countries involved in the conflict.
In an affidavit, Anneke Meerkotter, SALC director, said the NCACC had exhibited a “disquieting level of indifference to the facts of Saudi Arabia and the UAE’s involvement in the Yemeni crisis, notwithstanding that such facts are in the public domain”.
She said that the applicants did not approach the court lightly.
“At stake are the lives of the people of Yemen; South Africa’s compliance with international law, and the protection of the constitutional right to just administrative action,” she said.
While the relief claimed would not not on its own stop the conflict in Yemen, it was “an indispensable piece of international endeavour to stop the war in Yemen by persuading all states to refrain from providing weapons necessary to wage war.”
Since the inception of the conflict in Yemen, South Africa has exported conventional arms to Saudi Arabia and the UAE.
In addition, the NCACC’s annual reports indicated that SA had exported arms to other members of the coalition, such as Egypt, Jordan and Senegal, between 2016 and 2020.
Saudi Arabia and the UAE constitute the largest combined source of income for the South African arms industry,
In 2019 when the UN Group of Experts called for a cessation of transfer of controlled items to Saudi Arabia and the UAE, 22% of the R4-billion worth of exports from South Africa went to Saudi Arabia and the UAE.
In 2020, two years after the call by the UN, noted Meerkotter, South Africa increased exports to 30.75% of the total export value of R4,581,990,023 (R841,994,893 to the UAE and R567,020,937 to Saudi Arabia).
Navi Pillay, former UN High Commissioner for Human Rights, former judge of the International Criminal Court and Judge President of the International Tribunal for Rwanda, deposed an affidavit in support of the application and as an expert in international law and UN systems.
She told the court that on 3 October 2017, the UN Human Rights Commission had adopted resolution 36/31 on “human rights, technical assistance and capacity building in Yemen”.
Member states had requested the Commissioner for Human Rights to set up a group of “eminent international and regional experts with knowledge of human rights law and the context of Yemen for a period of at least one year”.
The group had been tasked with carrying out a comprehensive examination of all alleged violations and abuses of international human rights “committed by all parties in the conflict since September 2014”.
Since its inception, said Pillay, the Group of Experts had produced five reports and had made extensive submissions to the Human Rights Commission.
Pillay confirmed that the appointment processes of the UN were rigorous and the reporting of expert bodies “survives the most exacting scrutiny”.
Radhya Almutawakel of Mwatana, a non-governmental organisation based in Yemen’s capital, Sana’a, also deposed to an affidavit providing an insider’s perspective of the devastating war.
Almutawakel briefed the UN Security Council on the situation in Yemen in 2017 and was the first member of Yemeni civil society to do so.
Mwatana’s reports, said Almutawakel, “show the staggering devastation wrought to civilians by warring parties, including civilians who have been killed and maimed by Saudi/UAE Coalition airstrikes, including airstrikes involving weapons exported to Saudi Arabia and the UAE by other countries”.
She added that, in some instances, parties to the conflict, including Saudi Arabia and the UAE, “are committing violations of international humanitarian law and international human rights law. In some instances, these violations appear to count as war crimes”. DM
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