Myanmar ruling setback for SA's arms trade

The Gauteng High Court (Pretoria) has set aside a decision by the National Conventional Arms Control Committee (NCACC) to authorise arms sales to war-torn Myanmar, in an order a Daily Maverick report claims could have wider implications for SA’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 SA 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 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’. 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 UN 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. If the NCACC were to continue arms exports to countries which satisfy this criteria, it could be found to be in contempt of court. The DM notes the ruling could have direct implications for SA’s arms exports to Saudi Arabia and the United Arab Emirates, which are accused of committing war crimes in Yemen. Justice for Myanmar spokesperson Yadanar Maung said the organisation welcomed the 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.’ The application was unopposed. The chair of the NCACC, the Minister of Defence & 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.