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Perhaps the most successful transformation of South Africa's arms trade policy has been in the areas of landmines, small arms, and mercenaries. Whereas individual decisions to sell sophisticated South African weaponry have sometimes been questionable on human rights grounds, the geopolitical and economic arguments that can obscure formal commitments to human rights criteria do not play the same role in the case of landmines and small arms, where South Africa has been among the most prominent states in joining international campaigns for their banning, in the former case, and control, in the latter. More remarkably, South Africa is a world leader in imposing controls on private security companies or mercenaries operating from its territory.
Landmines
In harmony with its policies on human rights and international humanitarian law, the new South African government took an early, unquestionable, and firm position on banning antipersonnel landmines.182 South Africa was one of the most active states promoting the global process that ultimately led to the December 1997 signing in Ottawa of the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction (the Mine Ban Treaty).183
In February 1997, before the process came to its climax in Ottawa, South Africa had already announced a comprehensive ban on the use, production of, and trade in antipersonnel landmines, effective immediately, as well as its intention to destroy its existing stocks.184 The National Assembly ratified the ban treaty on May 5, 1998, and on June 26 that year South Africa deposited its instrument of ratification, thereby becoming the twenty-first country to do so, and the fifth in Africa. South Africa takes pride in having destroyed its stockpiles far ahead of the four year period provided for in the Mine Ban Treaty, and in being a leader in mine-clearance equipment, as well as a provider of specialized medical expertise to assist mine victims.185
Small Arms
Mines, however, are not the only scourge affecting Southern Africa. Interpol's regional bureau for southern Africa estimates that up to four million small arms and light weapons are making the rounds of the region.186 Many of these weapons have been in circulation since the struggles for independence began and continued to cascade from conflict to conflict claiming more and more victims in the process.187 "Upon cessation of hostilities many [arms] were left uncontrolled, some in the hands of civilian populations drawn into the conflict, others in many caches whose location[s] were either forgotten or deliberately unidentified, in case there was a need in [the] future to resort to war," observed an Interpol official.188 Such tidal flows of small arms are also feeding rampant crime in the region, a wave that has not spared the streets of Johannesburg and Pretoria.189 Weapons sold to the apartheid regime's clients in Angola and Mozambique came back to haunt the government of Nelson Mandela, as these arms started flooding the South African market. Experts maintain that the sheer number of these weapons, as well as those leaking from South African military armories through theft, may jeopardize the future stability of the country.190
Not surprisingly, therefore, South Africa, the sole major arms producer of the continent, has shown marked sensitivity to the problem of further proliferation and misuse of small arms. A recognition of this was reflected in the White Paper on Defence. "South Africa is committed to the international goals of arms control and disarmament," the document reads, "It shall participate in, and seek to strengthen, international and regional efforts to contain and prevent the proliferation of small arms, conventional armaments and weapons of mass destruction."191 This passage is particularly notable for the order of priority given to South Africa's disarmament efforts with small arms placed at the very top of the list, although they are generally considered the "poor relation" of weapons systems by the international disarmament establishment.
The South African government has taken steps to control the flow of illegal weapons, particularly small arms, through its airfields and porous borders. In 1997 South Africa closed 107 of its 117 international airports and activated radar facilities at Mafikeng, Upington, Ellisras, and Marriepskop in order to monitor flights over Botswana, Namibia, southern Zambia, and Angola. These facilities, however, were not equipped to follow low-altitude flights by smaller aircraft. "The air force should be tasked to monitor these flights," said a defense ministry official, "but since we have no threat of external aggression, there is little incentive to develop that capacity." This official also pointed out that even better controls of the air-space would be useless if not complemented with interception and investigation of violators, operations for which South Africa is not equipped. "Our air force does not have long and medium-range patrolling aircraft," he noted.192
To complicate matters, South Africa's land borders remain porous. "In February 1998, by cabinet decision, control of the borderline between border posts was transferred from the police to the defense department," said a different government official, "But are we able to control our borders absolutely? The answer is `no.'" Spot checks are routinely conducted at key crossing points, this official maintained. The problem, he said, is that smugglers always seem to be a step ahead of the authorities. "Weapons are hidden everywhere. We found them in modified petrol tanks," the official noted. South Africa's waters too are open, he said, since the country does not have a coastguard service; with its current fleet, the navy cannot enforce interception and hot pursuit missions against smugglers.193
The situation is not helped by the fact that countries neighboring South Africa either lack effective arms trade control mechanisms, or enforcement capabilities, or both. In 1998 the U.N. International Commission of Inquiry (Rwanda), known as UNICOI, observed that the alleged transport of weapons from South Africa to the Great Lakes region through Zimbabwe and Zambia suggested that the "scale of illegal trafficking appears to exceed the present capacity of the Governments concerned to control it in full in accordance with their laws."194 UNICOI noted that South Africa had placed the issue of illicit trafficking on the agenda of the Organization of African Unity, and that this action triggered a resolution requesting governments to provide information on their transfer and receipt of weapons.195
South Africa was also a driving force in the adoption of the 1998 Southern Africa Regional Action Programme on Light Arms and Illicit Trafficking, devised in cooperation with the European Union. The program aims at sharing information and enhancing policies and enforcement capabilities in the region.196
Since then, illegal arms trafficking has become a top priority for the Southern African Regional Police Chiefs Cooperation Organization (SARPCCO), a body created in 1995 with headquarters in Harare, Zimbabwe. With assistance from Interpol, SARPCCO has established a computerized communications system that tracks the movement of illegal firearms.197
More broadly, working within the SADC, South Africa has helped develop a consensus on the need for measures to combat the interrelated problems of the illicit manufacturing, trafficking, possession, and use of firearms. This process culminated in February 2000 in an agreement on a draft text of a SADC Firearms Protocol. The draft Firearms Protocol, which is likely to undergo further revision before its anticipated adoption later in the year, requires signatories that have not done so already to adopt national legislation criminalizing violations of U.N. arms embargoes, as well as the illicit manufacturing, trafficking, possession, or use of firearms. Among other provisions, it also calls for controls on civilian possession of firearms; marking of weapons at the time of manufacture, import, or export; responsible disposal of surplus weapons; and improved regional law enforcement cooperation.198 South Africa has incorporated many of these elements into draft domestic legislation, the Firearms Control Bill, that was presented to parliament in May 2000.199
In the wider international arena, South Africa contributed to the U.N. group of experts whose task was to identify ways to prevent and tackle the "excessive and destabilizing proliferation of small arms."200 South Africa's policy on small arms further evolved when in 1998 an international campaign to curb the spread and abuse of these weapons began to take shape.201 Although the campaign was led by nongovernmental organizations, South Africa figured prominently among the so-called like-minded governments that sought to define legal self-restraint regimes in the weapons trade. To this end, in July 1999 South Africa announced its intention to destroy 262,667 "redundant, obsolete, unserviceable and confiscated semi-automatic and automatic weapons of a calibre smaller than 12.7mm" rather than sell or export them.202
"On small arms South Africa is trying to gain the moral high ground," observed Jakkie Cilliers, a South African security expert. "This is why small arms have become something of a high priority for the ministry of foreign affairs." Regarding arms sales, he maintains, a distinction between small arms and other conventional weapons will always be made by South Africa. The former are to be scrutinized with stricter parameters in terms of quantities and recipients.203
In November 1999, at the time of the Commonwealth Heads of Government Meeting in Durban, South Africa, South African deputy defense minister Nosizwe Madlala Routledge called on Commonwealth countries to act responsibly in the trade of small arms and pledged that South Africa would continue to destroy seized illegal weapons and surplus small arms.204 It is hoped that this greater effort on the part of the government will fill the gap between policy and enforcement that has allowed illicit trafficking in small arms to prosper unabated.205
Related to the spreading of illicit trafficking in arms and services is the growing number of private security firms in South Africa offering military assistance and weaponry to clients around the world. Private military corporations such as Executive Outcomes (E.O.) share a common background: a staff often composed of former operatives of the South African apartheid military.
Some South African mercenaries, whether acting individually or as part of a private security outfit, have played a role in arming some of the worst human rights offenders. They often did so as part of an old-boy network with links to the South African national defense apparatus, putting to good use lessons they had learned during the apartheid era on how to circumvent arms embargoes. For example, Human Rights Watch in 1995 reported on a secret arms deal linking Hutu rebels connected to the Rwandan government responsible for the 1994 genocide with WillemEhlers, a former aide to South African apartheid president P. W. Botha who had particular military connections;206 a subsequent U.N. investigation followed the financial trail left by Ehlers, which led to bank accounts in Switzerland, France and Italy.207 Both sides in Burundi's ongoing and brutal civil war received weapons with the help of South African nationals or companies registered in South Africa.208 South African nationals also were heavily involved in providing military assistance and equipment to both sides of the war in the Democratic Republic of Congo in 1998, according to investigative journalists.209 Closer afield, in Angola, South African arms merchants also have found lucrative markets in violation of the U.N. arms embargo against the rebel União Nacional para a Independência Total de Angola (National Union for the Total Independence of Angola, UNITA).210 One South African national reportedly confessed to the Angolan authorities that he had been involved in more than 300 covert flights into Angola to supply arms and equipment to UNITA.211
On May 20, 1998, South Africa responded to concerns about the role of South African nationals in African conflicts by passing the Foreign Military Assistance Act, giving legislative detail to a constitutional provision prohibiting South African citizens from participating in either national or international armed conflicts.212 The law circumscribes the activities of South African nationals and residents, and juristic persons and entities registered and incorporated in South Africa, by defining a range of prohibitions, and by putting such activities under the control of the NCACC.213 The act covers military training, logistical, intelligence or operational support, security assistance, any action aimed at overthrowing a government or furthering the military interest of a party to an armed conflict, andthe offering of medical and para-medical services. In addition, it includes "procurement of equipment," which encompasses the activities of South African arms brokers.214 Crucially, the act contains an "extraterritoriality" clause that empowers South African courts to prosecute South African violators even when their main base of operation is abroad, and stipulates penalties ranging from fines to imprisonment.215 On October 2, 1998, the government also passed an implementing schedule for the act.216
Government officials indicated that, as of February 1999, the applications for permits received by the NCACC related to the Foreign Military Assistance Act had been "very limited in number," and many of these were from legitimate businesses. They admit that successfully bringing violators to court is not going to be an easy task.217 By instituting legal controls over the activities of South African individuals and private companies involved in the arms trade, South Africa is among the world's leaders in recognizing the responsibility of national governments for reining in unscrupulous private actors. Given the seriousness of the mercenary problem in South Africa, the government now must be sure to follow through with strict implementation and enforcement of controls over mercenary activity.
182 South Africa has been a party to the Geneva Conventions of August 12, 1949, since 1952 and acceded to the two 1977 Protocols additional to the Conventions in 1995.
183 International Campaign to Ban Landmines, Landmine Monitor Report 1999: Toward a Mine-Free World (New York: Human Rights Watch, 1999), pp. 82-88.
184 The minister of defense in reply to questions from parliament on May 15, 1996, stated that SANDF had a total of 311,179 landmines in stock. Of these 261,423 were anti-personnel landmines. Department of Defense, "Landmines in the Department of Defence", SANDF Logistical Division, May 20, 1997.
185 Mechem, a specialized engineering division/subsidiary of Denel, since 1991 has been contracted by both the U.N. and private companies to demine Mozambique. In 1997 it was estimated that Mechem mine-clearance contracts in Mozambique and Angola amounted to U.S.$5 million a year. In August 1997, South Africa signed a R.12 million (U.S.$2.6 million) deal with Mechem to clear landmines along the Maputo Corridor. Weekly Mail and Guardian (Johannesburg), May 23, 1997, and Star (Johannesburg) August 4, 1997.
186 The term "small arms" will be used hereafter to describe both small arms and light weapons.
187 Tatjana Tubic, "Yesterday's Weapons Keep Doing the Rounds," Mail and Guardian (Johannesburg), April 28, 1999.
188 Ibid.
189 Katharine McKenzie, "Domestic Gun Control Policy in the Ten SADC Countries," a report commissioned by: Gun Free South Africa, September 1999, pp. 20-23.
190 Chris Smith and Alex Vines, "Light Weapons Proliferation in Southern Africa," (London: Centre for Defence Studies, 1997), p. 26. Between January 1997 and May 1998, for example, more than 900 SANDF guns went missing. Surplus weapons were spread across 432 self-accounting units which are not sufficiently secure. Kerry Cullinan, "Move to increase control over the whereabouts of SANDF weapons," Star, August, 19, 1998.
191 White Paper on Defence, chap. 2, para 11.5.
192 Human Rights Watch interview, Pretoria, February 8, 1999.
193 Human Rights Watch interview, Pretoria, February 8, 1999.
194 "Interim Report of the International Commission of Inquiry (Rwanda), Annex, in Letter Dated 18 August from the Secretary-General addressed to the President of the Security Council, August 19, 1998, para. 31, and Final Report of the International Commission of Inquiry (Rwanda), Annex, in Letter Dated November 18, 1998 from the Secretary-General Addressed to the President of the Security Council, paras 57-60. UNICOI was created in 1996 to investigate arms flows to the perpetrators of the Rwandan genocide.
195 Ibid., para. 30.
196 Southern Africa Regional Action Programme on Light Arms and Illicit Trafficking, which was agreed at a conference organized by the Institute for Security Studies and Saferworld on "Developing Controls on Arms and Illicit Trafficking in Southern Africa," held in Pretoria, South Africa, May 3-6, 1998. The conclusions of the conference are available at www.iss.co.za/Pubs/ASR/7.4/regional.html.
197 Tatjana Tubic, "Yesterday's weapons."
198 Draft SADC Firearms Protocol, obtained confidentially by Human Rights Watch, New York, March 1, 2000.
199 The bill, available at www.polity.org.za/govdocs/bills/2000/b34-00.pdf, will replace the often-amended Arms and Ammunitions Act of 1969. It seeks to prevent gun crime; prevent the proliferation of illegal guns; and regulate the supply, possession, transfer, and use of firearms. For a summary of a draft version of the bill, see South African Council of Churches, "Public Policy Update: Draft Firearms Control Bill," March 8, 2000, at www.sacc-ct.org.za/ppu_guns.html, as well as South African Council of Churches, "Public Policy Update: Firearms Control Bill Tabled," May 30, 2000 at www.sacc-ct.org.za/ppu_gun2.html. For an analysis of small arms issues within South Africa, see Guy Lamb, "An Overview ofSmall Arms Production, Export, Ownership and Proliferation in South Africa," paper prepared for the seminar titled "Armed Civilians-A Threat to Peaceful Development," hosted by the Olof Palme International Center, Stockholm, March 23, 2000.
200 General and Complete Disarmament: Small Arms, "Report of the Panel of Governmental Experts on Small Arms," A/52/298, August 27, 1997, p. 7.
201 This occurred when thirty-two organization met in Orilla, Canada, in August 1998 and formed the International Action Network on Small Arms (IANSA). The network was formally launched in May 1999 in The Hague, Netherlands: www.iansa.org.
202 South Africa defense ministry correspondence with Human Rights Watch, Pretoria, May 12, 1999, and "Decision by the NCACC on the Destruction of Surplus Small Arms and Light Weapons," July, 11, 1999, available at www.polity.org.za/govdocs/pr/1999/pr0225.html. In a parallel move, the government introduced draft legislation to limit gun ownership in South Africa where there are four million registered firearms (one for every ten men, women, and children), and an estimated two million illegally held assault rifles. The law would limit handgun ownership to one per person, as well as restrict magazine capacity to nine rounds. Albeit modest in its approach, the draft law immediately encountered fierce opposition from gun lobbies. "Protesters Rally Against New South Africa Gun Law," Reuters, August 11, 1999.
203 Human Rights Watch interview, Halfway House, January 26, 1999.
204 "S. Africa Calls for Joint Action Against Small Arms Trade," Xinhua, November 11, 1999; and Human Rights Watch interview with the deputy minister of defense, Cape Town, November 18, 1999.
205 Human Rights Watch interview with Tawanda Mutasah, representative of Oxfam, Johannesburg, January 27, 1999.
206 Human Rights Watch/Arms Project, "Rwanda/Zaire: Rearming with Impunity: International Support for the Perpetrators of the Rwandan Genocide," A Human Rights Watch Short Report, vol.7, no.4, p. 14.
207 UNICOI cited two payments for 80 tons of weapons on June 15 and 17,1994 of U.S.$180,000 and U.S.$150,000, respectively, emanating from Ehlers' bank account number 82113 CHEATA with the Lugano branch of the Union Bancaire Privée. On the same bank account Ehlers was credited with U.S.$592,784 and U.S.$734,099 on June 14 and 16, 1994, respectively. These payments came from the Banque Nationale du Rwanda, Kigali with the source of the funds listed as the Banque Nationale de Paris, SA. Ehlers, in turn, paid the government of the Seychelles U.S.$330,000 and U.S.$40,000 into a bank account held with the Banca Nazionale del Lavoro in Alessandria, Italy for a consignment of goods sold to the government of Zaire in a sale that he brokered. Addendum to the Third report of the International Commission of Inquiry (Rwanda), in Letter dated 22 January 1998 from the Secretary-General, paras. 21-26. The perpetrators of the Rwandan genocide had been hit by a U.N. arms embargo on May 17, 1994. U.N. Security Council, Resolution 918, May 17, 1994.
208 To offer one example, in September 1996 a consignment of AKM assault rifles and hand grenades supplied by a South African company was on offer to Burundian buyers by a South African arms merchant. After a bid to sell the weapons to the Burundian military fell through, the arms dealer sold the consignment to Burundian rebels, who collected them from the port of Mtwara in Southern Tanzania. Human Rights Watch interviews with persons involved in the deal in Bujumbura, October 1996, Kampala (by telephone from Nairobi), October 10 and 11, 1996, Nairobi, October 10 (by telephone) and October 11, 1996, and Dar Es Salaam, September 15 and 16, 1996.
209 These reporters claimed that a consortium of affiliated air, cargo, transport, and military companies in South Africa concluded contracts for "non-lethal support" with DRC leader Laurent Kabila. A South African corporate intelligence company also reportedly was assisting Uganda, a supporter of Kabila's enemies, in the procurement of several South African armored personnel carriers. This deal was allegedly brokered by a former SANDF officer. Khareen Pech, William Boot and Ann Eveleth, "South Africa dogs of war in Congo," Weekly Mail and Guardian (Johannesburg), August 28, 1998.
210 U.N. Security Council, Resolution 864, September 15, 1993. The March 10, 2000, report of a U.N. panel of experts looking into embargo-busting in Angola implicated several South African nationals in violations of international sanctions imposed on UNITA. See "Report of the Panel of Experts on Violations of Security Council Sanctions Against UNITA," (New York: United Nations, 2000), S/2000/203, paras. 16, 20, 27 28, at www.un.int/canada/html/angolareport.htm.
211 Human Rights Watch, Angola Unravels, p. 118.
212 The Constitution of the Republic of South Africa, art. 198(b). Regulation of the Foreign Military Assistance Act, Act. no.15, 1998, Government Gazette, no.18912, May 20, 1998.
213 Specifically, the law stipulates that no person may within the Republic or elsewhere recruit, use or train persons for or finance or engage in mercenary activity. Regulation of the Foreign Military Assistance Act, section 2. The act further states no person may offer to render military assistance to any state or organ of state, group of persons or other entity or person unless he or she has been granted authorization to offer such assistance under the licensing authority of the NCACC. Ibid. sections 4 and 5.
214 Ibid., section 1.
215 Ibid., sections 8 and 9.
216 Regulation of the Foreign Military Assistance Regulations, no. R1232, Government Gazette, no.19300, October 2, 1999.
217 Human Rights Watch interview with a government official, The Hague, Netherlands, May 14, 1999.