High court declares South African arms exports to war-torn Myanmar unlawful

Thai soldiers deploy security guards along the Thai-Myanmar border at the Second Thai-Myanmar Friendship Bridge in Mae Sot district, Tak province, Thailand, 12 April 2024. (Photo: EPA-EFE / RUNGROJ YONGRIT)

By Victoria O’Regan

22 Jul 2024

The ruling could have direct implications 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 could have wider implications for South Africa’s weapons trade.

“The NCACC’s decision(s), purportedly taken during the fourth quarter of 2021, to authorise the issue of an export permit (or permits) pertaining to the transfer of controlled items to Myanmar, is/are reviewed and set aside,” said acting Judge Mentz in her ruling.

The court’s ruling pertains to an application brought by the Southern Africa Litigation Centre (Salc), represented by Lawyers for Human Rights (LHR), in October 2022, seeking the review and setting aside of permits that were granted by the NCACC to facilitate arms transfers to Myanmar.

Salc argued that South Africa exported arms to Myanmar between 2017 and 2021, “despite having knowledge of the grave human rights violations, potential violations of the Genocide Convention and a military coup”.

Such arms transfers, Salc argued, violated provisions of the National Conventional Arms Control (NCAC) Act and international law.

Salc, in its application before the high court, further requested an order requiring the NCACC to suspend arms transfers to countries engaged 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”.

On Friday, the court granted Salc the relief it sought, declaring that the NCACC had an obligation, in terms of section 14(3) of the Act, to “suspend any existing contracting and/or export permit pertaining to the transfer of controlled items to a country that has experienced an unconstitutional change of government; and/or is reasonably suspected, by a special rapporteur, independent expert, or other person working in terms of a United Nations mandate, of having committed any crime against humanity, war crime, or genocide”.

According to the order, the NCACC must suspend its permits for exports to any such state that meets the criteria set out in the order — meaning that for the duration of the suspension, no arms can be exported there. Importantly, if the NCACC were to continue arms exports to countries which satisfy this criteria, it could be found to be 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, bombing civilians, schools and healthcare facilities.

Yemeni soldiers on an army vehicle patrol a street amid strict security measures in Sana'a, Yemen, 28 November 2013. (Photo: EPA / YAHYA ARHAB)

More than 18.2 million out of a population of 35 million in Yemen require humanitarian assistance, but funding has plunged 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 began their military invasion of Yemen alongside seven other countries, Daily Maverick reported.

Read more: Exposed: South Africa’s role in Yemeni civil conflict’s humanitarian crisis

The sale of South African arms 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 the NCACC approved sending armoured combat vehicles, light weapons and ammunition worth R47-million to the UAE. Sales to Saudi Arabia included armoured combat vehicles and alerting and warning systems worth R81-million.

The 2023 NCACC report also details arms sales to the Democratic Republic of the Congo, Egypt, Burkina Faso, Mali, Kenya, China and Germany, among others.

Salc and the LHR, along with the activist organisation Justice For Myanmar, welcomed the high court’s order, saying in a statement that “it will have immediate consequences not only for any future arms exports from South Africa to Myanmar, but to many other countries too”.

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 authorised the export of conventional arms 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, which resulted in grave human rights violations in the country, allegations of genocide against the Rohingya minority group and forced hundreds of thousands to flee into neighbouring Bangladesh.

The military campaign is the subject of a genocide 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.

Read more: The Gambia gives international justice an unlikely boost

Myanmar’s military staged a coup in February 2021, killing and imprisoning opponents and attacking civilians. The NCACC annual report covering 2021, shows that SA’s arms regulator authorised the export of “communication equipment” worth R47-million to Myanmar in 2021.

According to Salc’s founding affidavit, the first three quarterly reports for 2021 do not show any authorisation of arms exports to Myanmar, meaning the NCACC authorised the export in the fourth quarter of 2021, after the 1 February coup.

This was in contradiction to South Africa’s foreign policy position on Myanmar at the time. In June 2021, South Africa voted in favour of a UN General Assembly resolution calling for an arms embargo for Myanmar from UN member states.

In a Department of International Relations and Cooperation (Dirco) statement on 1 February 2021, the department said, “South Africa would continue to support the people of Myanmar in their pursuit of democracy, peace, human rights and rule of law.”

The NCACC annual reports show South Africa has not transferred arms to Myanmar since 2021.

In the statement on Friday, Salc’s international justice cluster lead, Dr Atilla Kisla, said, “Arms exports to a country that violates human rights and that underwent a military coup are illegal.

“This order is crucial in creating a more responsible and accountable arms trade 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 applying the law and suspending and/or cancelling permits if needed.”

Justice for Myanmar spokesperson Yadanar Maung said the organisation welcomed the high court’s ruling, “as it protects the people of Myanmar by clarifying that such arms transfers are not in compliance with domestic and international law. Such permits should never have been approved in the first place.”

Salc’s high court application was unopposed. The chair of the NCACC, the minister of defence and military veterans and the President were all respondents in the matter.

The court ordered the chair of the NCACC and the defence minister to pay the costs of the application.

When Daily Maverick contacted the Department of Defence and the Presidency for comment, it was referred to the head secretariat of the NCACC, Advocate Ezra Jele, and the Deputy Minister of Communications and Digital Technologies, Mondli Gungubele, who chairs the NCACC, for comment.

Jele told Daily Maverick he was “unaware of this judgment”.

“A proper study of that judgment will be sourced in order to provide a proper response,” he said.

Gungubele has not yet responded to a request for comment. DM

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