Arms Sales to the Middle East

THE PROBLEM OF ARMAMENTS

The starting point of any debate on arms transfers to the Middle East should be the problem of armaments rather than the problem of the Middle East. This is because weapons and ammunition constitute a special category of goods. They are designed for the threat and use of force. People use them to kill other people.

While arms may be utilised for the legitimate purpose of self-defence, they are also used for the illegitimate purposes of aggression and repression. They may provoke and exacerbate conflict and contribute to widespread destruction of life and property. Arms exports consequently entail inescapable moral choices for supplier states. If these states deliberately or carelessly sell weapons to repressive or aggressive regimes, they bear a measure of culpability for the use to which the weapons are put.

South Africa's duty to respect human rights and international peace and security is as much legal as moral. Under the UN Charter we may not threaten or use force against other states; as a signatory to the Covenant on Civil and Political Rights we must respect fundamental rights and freedoms; and as a party to the Geneva Convention we must adhere to the rules of warfare which prohibit indiscriminate use of force. The Constitution enshrines these commitments by endorsing international law in general and the law on armed conflict in particular. ¹ It follows logically that South Africa's legal obligations preclude it from arming states which defy these obligations. ²

From a strategic perspective, arms exports may jeopardise the security of the supplier state if they are sold to a country in which that state might later be engaged in peacekeeping or peace enforcement. Had SANDF troops been deployed in peace operations against Iraq or in Rwanda, Angola or Bosnia, they might have been confronted by an `enemy' carrying South African weapons.

In the light of the above, the Cameron Commission has argued that the primary goal of arms trade policy should be to restrict, and not promote, the transfer of armaments. The ethical, political, legal and strategic reasons for exercising restraint should take precedence over the economic and commercial motivation for selling arms. ³

National policy on arms exports

Official arms trade policy, contained in the White Paper on Defence and approved by Parliament in May 1996, is less clear cut than that proposed by the Cameron Commission. The essence of the policy is that South Africa will both promote a responsible approach to arms sales and support the defence industry's export initiatives. ⁴ These goals appear increasingly to be incompatible.

Nevertheless, the official criteria for determining to which countries South Africa will or will not export armaments are consistent with those recommended by the Commission. For example, the White Paper states that "South Africa shall not transfer arms to countries which systematically violate or suppress human rights and fundamental freedoms". ⁵

Further, South Africa will avoid arms transfers which are likely to:

• be used for the violation or suppression of human rights and fundamental freedoms;
• contribute to the escalation of regional conflicts, endanger peace by introducing destabilising military capabilities into a region, or otherwise contribute to regional instability and negatively influence the balance of power;
• support or encourage terrorism;
• have a negative impact on South Africa's diplomatic and trade relations with other countries; or
• be used for purposes other than the legitimate defence and security needs of the recipient country. ⁶

The White Paper also provides that South Africa is committed to the international goals of arms control and disarmament. It will 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. ⁷

The import and export of conventional arms will be subject to oversight by "the relevant parliamentary committees" and to the principle of openness and transparency. This principle will be limited only by "national security interests consistent with the need for confidentiality". ⁸

DEMOCRATIC ACCOUNTABILITY

Earlier this year Deputy Minister Essop Pahad made the following remarks in response to criticism of Pretoria's arms transfers to Algeria and proposed sale of military equipment to Syria: "Who says Syria is a terrorist country? It is a matter of interpretation. Our assessment of human rights [in Algeria] can't be determined by an Amnesty International report. We have our own criteria".⁹

Although the nature of Pahad's criteria are a mystery, his perspective highlights the fact that the implementation of national policy necessarily entails the exercise of subjective political judgement. Considerations of human rights and international peace and security can be interpreted broadly or narrowly, with substantially different results.

Transparency, parliamentary oversight and public debate on arms transfers are therefore critical. Currently, however, the importing state's desire for secrecy overrides the White Paper position on transparency and the constitutional provision on freedom of information. ¹⁰ In the writer's experience, foreign embassies are better informed about South African arms trade than local parliamentarians.

Minister Asmal believes that it is inappropriate for the legislature to `second-guess' the executive in sensitive matters of foreign policy. He is therefore opposed to Parliament playing a prospective decision-making or advisory role in respect of pending sales. In March 1996 he announced that the parliamentary defence and foreign affairs committees would be empowered to scrutinise exports retrospectively on the basis of regular reports from the Inspector General for arms control. ¹¹ At the time of writing, eighteen months after the announcement, the nature of such scrutiny had not been determined and the Inspector General had not been appointed.

Democratic control over arms exports exists only in the sense that the activity is now regulated by a representative government. The other key aspects of democracy - transparency and parliamentary oversight - are largely absent. This precludes rigorous scrutiny of executive decisions and relieves Cabinet of the pressure to abide by official policy. As illustrated below, the departure from apartheid era policy is not as significant as it appears on paper.

Arms sales to Syria and Saudi Arabia

In terms of South African arms control policy, few countries are less appropriate recipients of military equipment than Syria. The regime in Damascus is a dictatorship, operating under a state of emergency imposed in 1963; it detains political activists without trial; it is engaged in a long-standing conflict with Israel over the Golan Heights; and it has been accused of regional destabilisation by most of its neighbours. ¹²

In the case of Saudi Arabia, citizens do not enjoy the rights of freedom of expression, association and speech. They do not have the basic right to select their public representatives through free and fair elections. Political parties and trade unions are outlawed. ¹³ In September this year the country was embroiled in controversy over the prosecution of two British nurses charged with murder. International protests focussed on the lack of due process. The trial took place in camera; the judges heard no witnesses and were presented with no forensic evidence; and the accused were not entitled to legal representation. ¹⁴

It has been suggested in letters to the local press that those who oppose the sale of weapons to Syria and Saudi Arabia are motivated by anti-Muslim sentiments. This is a curious proposition since the principle targets of state harassment in both countries include Islamic groups. Most critics of these sales are equally opposed to South African arms transfers to Israel.

Official justifications for arms sales to the Middle East

The announcement of prospective arms sales to Syria and Saudi Arabia was met by strong protests from various quarters. In their response, state officials at no stage sought to justify the sales in terms of the White Paper criteria set out above. The debate was reminiscent of Alice in Wonderland, with government critics relying on government policy to support their position, and government arguing implicitly that its policy was inappropriate or unrealistic.

The official justifications for arms exports to the Middle East are presented, and rejected, below.

Sovereignty

When the Sunday Times revealed that Cabinet had provisionally approved a contracting permit to export military equipment to Syria, it highlighted the negative reaction of the Clinton administration. ¹⁵ The US, which regards Syria as a terrorist state, threatened to suspend aid to South Africa.

This set the agenda for the debate which followed. ANC parliamentarians rejected US attempts to impose its definition of terrorism on South Africa. Ministers similarly denounced Washington's `bullying tactics'. They insisted that South Africa, as a sovereign state, was free to chose to whom it exports arms. ¹⁶

These assertions missed the obvious point that the United States is also a sovereign country and therefore at liberty to grant or suspend aid as it sees fit. Further, they ignored what should have been the primary question: is the prospective sale to Syria consistent with South African policy on arms trade?

If we don't sell arms, someone else will

In the case of Syria and other controversial weapons transfers, government and defence industry spokespeople have frequently pointed out that the prospective buyer will simply turn to other arms suppliers if South Africa is unwilling to meet its needs. Why then should South Africa forfeit the revenue from the sale?

While this question is based on an accurate empirical observation, it reflects an unacceptable stance from an ethical and legal perspective. Imagine telling a judge: `Your Honour, I did steal the car but if I hadn't, it would have been swiped by another thief'!

South Africa's unilateral refusal to arm the `bad guys' will not improve their human rights conduct, especially if other states are willing to stock their arsenals. Many analysts therefore believe that the negative impact of conventional arms trade can be tackled effectively only through an multilateral control regime. ¹⁷ Regardless of the presence or absence of such regime, however, arms suppliers have a duty to behave responsibly. Governments, as much as individuals, are accountable for their actions.

The neutral arms sale

In the course of the Syria debate, critics claimed that the arms transfer would be perceived as a partisan intervention by South Africa in Middle East politics. Deputy Minister Aziz Pahad argued in response that maintaining good relations with any one state in the Middle East does not preclude maintaining good relations with any other state in the region. ¹⁸

This argument may be correct with respect to diplomatic relations and ordinary commercial trade, but it does not extend to arming countries which are in conflict with each other. In these situations, arms sales are inevitably regarded as an expression of bias and an external intervention in the conflict.

Weapons sales necessarily imply that the supplier country recognises the legitimacy of the recipient state and its security and defence requirements. In contrast, where the international community makes arms transfers conditional on respect for human rights and freedoms, as with the arms embargoes against apartheid South Africa, a positive influence might be felt in the long run.

The right of self-defence

Advocates of arms transfers consistently make the point that all states enjoy the right of self-defence under the UN Charter. Further, the denial of weapons to a country under threat of invasion, or to a community subject to genocide, can amount to complicity in acts of aggression.

While few people would contest this position, it is important to emphasise that the right of self-defence is an exception to Article 2(4) of the UN Charter. This Article entails a substantive ban on the use or threat of force and is regarded as the primary rule of international law. ¹⁹ It may therefore serve as a sufficient legal basis for rigorous national and multi-lateral arms control. ²⁰

Over the past two decades, massive arms sales to the Middle East have exacerbated and not resolved intra- and inter-state conflict. The regional arms race has reduced, rather than enhanced, the security of states and people.

Non-imposition of South African norms

In debating the question of arms sales to Syria, Deputy Minister Aziz Pahad observed that while respect for human rights is a cornerstone of South Africa's foreign policy, there are limits in trying to impose this perspective on other countries. ²¹

This observation is undoubtedly correct. But South Africa should surely `impose' its constitutionally enshrined commitment to human rights on its own arms trade practice. Pretoria need not pursue the ambitious aim of doing good throughout the world. A responsible approach to arms exports has the more modest goal of not doing harm.

A corollary to Pahad's position is sometimes framed in the form of a rhetorical concern about cultural chauvinism: "Whose definition of human rights and fundamental freedoms do we seek to apply anyway?". This is a curious question in a country with a comprehensive Bill of Rights which is binding on the state.

Promoting employment and foreign revenue

The Department of Defence, Armscor and Denel maintain that arms exports are both an economic imperative for the defence industry and economically advantageous for the country as a whole. Exports allow for economies of scale in local production, promote employment, stimulate technological development and generate foreign revenue. ²²

This position is contested by scholars who claim that the net economic benefits of South African arms exports are marginal once direct and indirect state subsidies are taken into account. Moreover, the maintenance of the defence industry has long-term opportunity costs since military production is capital-intensive and absorbs substantial state resources. ²³

In a rigorous comparative study, Michael Brzoska concludes that military production is economically inefficient in most developing countries, including South Africa. Costs are typically higher than in industrial societies because of short production runs, limited economies of scale and significant dependence on imported components and technology. As a result, arms exports may not be competitive in the world market, and imports may be much cheaper than local production. ²⁴

In the context of South Africa's debt burden, chronic unemployment and acute socio-economic deprivation, the question of boosting jobs and foreign revenue is not a trivial matter. It would therefore be inappropriate to characterise Pretoria's promotion of arms sales as a case of material interests prevailing over morality.

Nevertheless, it is untenable that this form of stimulating the economy should override a constitutional duty to respect human rights. The pursuit of economic benefits at the expense of human security and freedom is antithetical to South Africa's democratic values. The right to life, enshrined in the Constitution, is both fundamental and universal. People everywhere are entitled to expect that this right is respected not only by their own government but also by other states.

In the worst case scenario, an irresponsible approach to arms trade could result in either the withdrawal of foreign aid, as threatened by the US in the case of Syria, or the imposition of sanctions, as occurred under apartheid. Neither of these outcomes would serve South Africa's economic interests.

Conclusion

In the light of national policy on arms transfers and the extent of conflict and abuse of human rights in the Middle East, there should be a general presumption against exporting military products to any country in that region.

If, notwithstanding the risks, Pretoria does wish to sell arms to a Middle Eastern state, it should abide by national policy approved by Parliament. And if the Executive or Parliament believe that the provisions of the White Paper on Defence are unsound, they should amend rather than ignore the policy.

Certain foreign affairs officials believe that arms trade requires the "weighing of moral concerns against hard facts". ²⁵ This is a false distinction on two counts. First, invasions, civil war and the killing of civilians are as much hard facts as moral concerns.

Second, ethical behaviour is in South Africa's national interest. We are unable to acquire and exert influence internationally on the basis of our limited economic and military capacity. Rather, our strength derives from the stature of President Mandela and the success of our negotiated transition to democracy.

If we utilise these assets by acting responsibly, promoting humanitarian concerns and contributing to peace initiatives, the long-term economic and diplomatic gains will be great. But if we squander the assets by pursuing profits from arms sales, the damage will be felt by South Africa as well as by those at the receiving end of our weapons.

Whilst many countries use arms transfers as a source of influence and instrument of foreign policy, the new South Africa does not possess such capacity. Our commitment to international peace and security, social justice, human rights and environmental protection take precedence. (Deputy Minister Pahad ²⁶)

REFERENCES

1. See articles 39(1)(b), 198(c), 199(5), 200(2), 232 and 233 of the Constitution of the Republic of South Africa (1996).
2. See further Jonathon Klaaren, "Human Rights Legislation for a New South Africa's Foreign Policy", South African Journal on Human Rights 10, 2 (1994): 260-275.
3. Commission of Inquiry into Alleged Arms Transactions Between Armscor and One Eli Wazan and Other Related Matters, Second Report: Comment and Proposals on Conventional Arms Trade Policy and Decision-Making in South Africa (Cape Town, 20 November 1995).
4. White Paper on Defence: Defence in a Democracy (Republic of South Africa, 1996), 53-54.
5. Ibid, 55.
6. Ibid, 56.
7. Ibid, 9.
8. Ibid, 54.
9. "SA Accused of Breaking Moral Promise on Arms", Sunday Independent (19 January 1997).
10. Article 32(1)(a) of the Constitution provides that "everyone has the right of access to any information held by the state".
11. Oral briefing by Minister Asmal, Chairperson of the National Conventional Arms Control Committee, to the parliamentary Joint Standing Committee on Defence (Cape Town, 18 March 1996).
12. See, for example, Amnesty International, "Syria: The Forgotten Victims", Focus 27, 7 (London, July 1995).
13. See, for example, the sections on Saudi Arabia in the annual reports of Amnesty International.
14. See "A Different Kind of Justice: Two British Nurses Await Their Fate in Saudi Arabia", Time (6 October 1997).
15. Sunday Times (12 January 1997).
16. See, for example, "Mandela Says SA Will Not Bow to US", Star (16 January 1997).
17. See, for example, David G. Anderson, "The International Arms Trade: Regulating Conventional Arms Transfers in the Aftermath of the Gulf War", The American University Journal of International Law and Policy 7, 4 (1992): 749-805, at 797-805.
18. Deputy Minister Pahad, remarks at the workshop on `The Middle East and South Africa: A Framework for Understanding', Department of Foreign Affairs (Pretoria, 21 April 1997).
19. Hilair McCoubrey and Nigel D. White, International Law and Armed Conflict (Aldershot: Dartmouth, 1992), Chapter 2.
20. Jiuyong Shi, "Opening Address", in The International Law of Arms Control and Disarmament: Proceedings of the Symposium, Geneva, 28 February - 2 March 1991 (New York: United Nations, 1991), 23; and Miljan Komatina, "Opening Address", in The International Law of Arms Control and Disarmament, 32.
21. Deputy Minister Pahad, remarks at the workshop on `The Middle East and South Africa', op cit.
22. See, for example, Richard Meares, "The Moral Dilemma of Frankenstein", Business Report (3 September 1997).
23. Peter Batchelor and Sue Willet, "To Trade or Not to Trade?: The Economics of South Africa's Arms Trade", submission to the Cameron Commission (Cape Town, June 1995).
24. Michael Brzoska, "The Impact of Arms Production in the Third World", Armed Forces and Society 15, 4 (Summer 1989): 507-530.
25. Remarks at the workshop on `The Middle East and South Africa', op cit.
26. Armscor, "Interview with Aziz Pahad, Deputy Minister of Foreign Affairs", Salvo 1/97 (Pretoria, 1997): 4.