A Yemeni government fighter fires a vehicle-mounted weapon in Marib, Yemen, March 28 2021. Picture: REUTERS/ALI OWIDHA
A Yemeni government fighter fires a vehicle-mounted weapon in Marib, Yemen, March 28 2021. Picture: REUTERS/ALI OWIDHA

A court on Tuesday ordered the National Conventional Arms Control Committee (NCACC) to provide a list of SA arms companies that have permits to export arms to Saudi Arabia and the United Arab Emirates (UAE) — the first step in a longer court battle to stop the export of weapons to countries that non-governmental organisations (NGOs) say are fuelling the devastating conflict in Yemen.

The Southern African Litigation Centre (SALC) and Open Secrets, a non-profit organisation investigating economic crime, said in their court papers that the war in Yemen has been described as the “world’s worst humanitarian crisis”. Yet SA has, since 2016, exported more than 20% of its arms to countries involved — in breach of the law and the constitution. 

The UN’s Group of Experts on Yemen has called for a complete halt on the transfer of arms to all the parties involved in the Yemen conflict, the organisations said. Saudi Arabia and the UAE have been accused of war crimes and crimes against humanity. Evidence has now emerged that weapons made in SA have been found at the scenes of attacks on civilians in Yemen.

Even though SA has not exported arms to Yemen since 2010, “it is reasonable to assume that these arms form part of the exports to Saudi Arabia and the UAE”, SALC’s Anneke Meerkotter said in an affidavit. On Tuesday the NGOs urgently asked the court to order the NCACC to give them a list of which arms companies it has issued permits to, so they can join these companies as parties in the litigation. 

Despite some back-and-forth correspondence since March, the committee has not given them this information. The NCACC did not file court papers and did not turn up in court to answer to the case. The hearing was over in less than half an hour, with Pretoria high court judge Norman Davis granting the order. 

Open Secrets’s Hennie van Vuuren said the order meant they had “cleared the first major legal hurdle”.

“Now we get to the urgent business of stopping the sale of weapons to Saudi Arabia and the UAE, who have targeted civilians in Yemen and are accused of violating international law,” he said.

Van Vuuren said this was likely to be a lengthy process involving powerful institutions and large arms companies. “But it is vital that we challenge a practice which has seen a profit being made from human rights abuse in countries like Yemen.”

The NCACC is the body responsible for implementing the National Conventional Arms Control Act.

The act says its purposes include to ensure adherence to international law and proper accountability when it comes to arms trading. In her affidavit, Meerkotter said: “The act draws a line in the sand between the secretive apartheid arms machinery and the postapartheid commitment to being a responsible member of the international community ... No longer would weapons be sold to the highest bidder regardless of how they would be used.”

The main part of the case, part B, will be asking for a court order setting aside the decision by the NCACC to grant the permits and asking the court to step into the committee’s shoes and refuse the permits. Alternatively, to send the permit applications back to the committee for reconsideration.

The act requires the NCACC to avoid transfers of arms where they will escalate regional conflicts or transfers to governments that systematically violate human rights. The committee must also, under the act, adhere to international norms and standards including UN embargoes.

“The NCACC has no discretion regarding the transfer of [arms] to governments that systematically violate or suppress human rights and fundamental freedoms. Given the wealth of evidence regarding the violations committed by Saudi Arabia and the UAE, it is clearly unlawful for the NCACC to authorise the transfer,” said Meerkotter.

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