Civil Society welcomes directive to avoid further delays in Yemen arms trade case
21 February 2022
The High Court of South Africa, Gauteng Division: Pretoria has requested the National Conventional Arms Control Committee (NCACC) to end delays in the review application relating to permits enabling weapons exports to Saudi Arabia and the UAE. This comes at a time that violence is surging in Yemen fuelled in large part by armies of the UAE and Saudi Arabia who are equipped with weapons from major arms exporting countries – including South Africa. It has never been more urgent to review the NCACC’s decisions to export weapons to countries that are parties to this conflict and who regularly target civilians.
In late January 2022, the United Nations Special Envoy to Yemen and United Nations Humanitarian Coordinator for Yemen warned that January would be a “record-shattering month for civilian casualties in Yemen”. Eight years since the war began, violence is again spiralling out of control, including targeting civilians and civilian infrastructure and spilling over Yemen’s border. An airstrike by Saudi Arabia on, 21 January 2022, killed 91 civilians and injured 226 – the worst attack on civilians in Yemen in three years.
Civil society organisations in Yemen report that there has been a surge in air raids and civilian casualties by the Saudi-led coalition since the UN Human Rights Council voted against an extension of the mandate of the Group of Eminent Experts on Yemen.
Following various delays in the application brought by the Southern Africa Litigation Centre (SALC) and Open Secrets to review and set aside decisions by South African authorities enabling the export of arms to Saudi Arabia and the UAE, both organisations welcome the latest measures taken by the High Court to expedite the proceedings. After the matter was referred to the office of Honourable Judge N.N. Bam, for case management in January 2022, the Judge directed the National Conventional Arms Control Committee (NCACC) to hand over the full record under Rule 53 of the Uniform Rules of the Court to the Registrar.
The recent developments follow two court orders that were issued in 2021. The orders on 15 June 2021 and on 3 August 2021 directed the NCACC to complete the service of the court papers on all interested parties and to hand over the record in terms of Rule 53 of the Uniform Rules of the Court. The lethargy and inaction by the NCACC have repeatedly obstructed the process of judicial review of the NCACC’s decisions to grant permits to export arms.
The two-part application by SALC and Open Secrets, which was launched in June 2021, seeks the following:
- An order that, the National Conventional Arms Control Committee (NCACC), serve the a copy of the application on all permit holders that are authorised to export arms to Saudi Arabia and the United Arab Emirates (UAE), so that they could be joined to the proceedings.
- A judicial review of the decisions by the NCACC to authorise arms exports to Saudi Arabia and the UAE despite their active role in the ongoing humanitarian crisis in Yemen and allegations of committing war crimes.
Cognisant of the dire situation in Yemen, Open Secrets and SALC have exerted every effort to ensure that the review part of the application is heard as soon as possible. To prevent further delay and avoid litigation on procedural matters, SALC and Open Secrets requested that a judge be appointed as a case manager to assist in the matter. Judge Bam of the Gauteng High Court, Pretoria, was appointed in January 2022.
Both organisations welcome Judge Bam’s directive to the NCACC, issued on 27 January 2022, that the NCACC must urgently comply with the court orders to serve the papers on the permit holders, supply the full record, and demonstrate to the Judge that it has done so. We sincerely hope that this directive will allow the review proceedings to proceed and for the court to consider the merits of this case.
SALC and Open Secrets maintain that, by granting export permits that enable South African arms companies to export arms to Saudi Arabia and the UAE, the NCACC did not meet the criteria and principles set out in the National Conventional Arms Control Act (NCAC Act). In terms of the NCAC Act, the NCACC must avoid transfers of arms to governments that systematically violate, or suppress, human rights and fundamental freedoms; and transfers of arms that are likely to contribute to the escalation of regional military conflicts.