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Transfer of arms to conflict areas: South Africa's responsibilities.

ABSTRACT

In May 2008 a consignment of conventional weapons destined for Zimbabwe arrived in the Durban harbour. The official authorisation for the transfer of the consignment over South African territory to Zimbabwe was interdicted by the dock workers' refusal to offload and an urgent High Court application barring the further transfer of the weapons. The incident caused a controversy and public debate on South Africa's obligations to prevent the transfer of arms to countries, like Zimbabwe, at a time when government oppression and human rights violations in the course of a fraudulent election process were the subjects of international concern. This article assesses the situation firstly from the perspective of the legislative measures and the arms control oversight function of the National Conventional Arms Control Committee, and secondly from South Africa's international law obligations.

1. INTRODUCTION

Fraudulent and violent elections are hallmarks of African politics. Over the last decade or more, the Mugabe regime in Zimbabwe has on various occasions demonstrated how easy it still is to remain in power through a combination of state-sponsored violence, torture and election rigging. (1) This practice proved once again helpful during the run-up to the March 2008 combined presidential and parliamentary elections when the ruling ZANU-PF and their proxy forces of youth militia and so-called war veterans used state-sponsored violence and a fraudulent election process to force a political impasse in the face of a possible opposition victory.

While the final election results were still outstanding several weeks after the election and ordinary Zimbabweans were still subjected to government-sponsored abuses, a Chinese vessel docked in the Durban harbour, carrying a military cargo destined for Zimbabwe and which included three million rounds of 7,62mm ammunition, 69 rocket-propelled grenades, as well as mortar bombs and tubes. (2) It also transpired that once the controversial cargo was discharged from the vessel, the further transportation of the cargo across South African territory to Zimbabwe would have been facilitated by the South African government, an event that was only interdicted by South African dock workers' refusal to offload the cargo and an urgent High Court interdict which barred the transportation of the cargo across South African territory.

The controversial part of the event was the South African government's (assisted by its arms procurement agency, Armscor) clearance of the cargo and authorisation for the cargo's transportation to Zimbabwe. The official position of the South African government was that the cargo was the subject of a legal transaction between two governments (Zimbabwe and China) and that there was no United Nations (UN) arms embargo against Zimbabwe at the rime. Consequently, South Africa had little choice but to allow the deal between the two countries to proceed. China also considered the transaction as 'standard business' with Zimbabwe. (3) That contested elections in politically unstable countries usually attract weapon merchants and involve a propensity for violence on either side of the dividing lines, were apparently not enough ground for the South African government to use its sovereignty over its own territory to prevent the shipment from reaching its destination. Whatever the real motivation for the South African government's ostensibly unproblematic co-operation was, the incident provides a good opportunity for revisiting the national legal and policy framework as well as South Africa's international obligations, if any, with regard to weapon transfers to conflict areas.

2. THE LEGISLATIVE AND POLICY FRAMEWORK

On 1 May 2003 the National Conventional Arms Control Act, 2002 (Act No 41 of 2002) came into force and effect. The preamble gives clear recognition to providing adequate protection of rights to life and security of the person against repression and acts of aggression as a prerequisite for the well-being and the social and economic development of every country. In this context, South Africa is marketed in the preamble "as a responsible member of the international community" which will "not trade in conventional arms with states engaged in repression, aggression or terrorism".

In essence the Act is a conventional arms control mechanism for the purpose of ensuring, inter alia, proper accountability in the trade in conventional arms and the implementation of a legitimate, effective and transparent control process. 'Trade in conventional arms' includes: (4)

(a) any activity relating to the manufacturing, marketing, contracting, exportation, re-exportation, importation or conveyance of conventional arms;

(b) the rendering of brokering services; and

(c) the rendering of services.

'Services' are defined as "any service relating to conventional arms of whatever nature or form to any institution of a foreign country: and include aid; advice; assistance; training and product support". (5)

'Conveyance', when used in this context, means "to transport conventional arms through or over the territory of the Republic ... to any other place or destination outside the Republic, whether or not such conventional arms are off-loaded". (6) Also relevant is the definition of 'brokering services' in section 1. In part this provision defines such services as including "facilitating the transfer of documentation, payment, transportation or freight forwarding, or any combination of the abovementioned, in respect of any transaction relating to buying, selling or transfer of conventional arms".

The enforcement of the Act is entrusted to the National Conventional Arms Control Committee (7) (NCACC) which must apply and ensure a legitimate, effective and transparent control process which conforms to international law and the guiding principles of the Act, and which will foster national and international confidence in the control procedures over trade in conventional arms. (8) The Committee is entitled to cancel, amend or suspend authorisation for the trade--understood in the broad sense above--in conventional arms if it is in the interest of maintaining and promoting international peace or avoiding repression or terrorism. (9) The Committee is also under an obligation to: (10))

--avoid contributing to internal repression, including the systematic violation or suppression of human rights and fundamental freedoms;

--avoid transfers of conventional arms to governments that systematically violate or suppress human rights and fundamental freedoms;

--avoid transfer of conventional arms that are likely to contribute to the escalation of regional military conflicts, endanger peace by introducing destabilising military capabilities into a region; and

--avoid the export (11) of conventional arms that may be used for purposes other than the legitimate defence and security needs of the government of the country of import.

In January 2004, the NCACC published its Policy for the Control of Trade in Conventional Arms in which it was clearly stated that the NCACC's regulatory control incorporates authorisation to transfer conventional arms across national borders and that all services as defined in the Act (see above) are subject to regulatory controls. The Policy also stipulates that the conveyance of foreign owned conventional arms through or over South African territory to a foreign destination is regulated by the issuing of conveyance permits and that the application for such a permit must be authorised by way of a diplomatic note from the country requesting conveyance. Whether, in the matter under discussion, the South African authorities received notice of the consignment in advance by way of a diplomatic note, is unclear.

What is not in dispute though is that the NCACC in fact authorised the transfer of the consignment over South African territory and that Armscor was complicit in getting the consignment cleared by customs. Especially astounding are the reasons the South African government put forward in justifying its action, that is the absence of a United Nations (UN) arms embargo against Zimbabwe and the standard nature of the transaction between Zimbabwe and China. Both these factors are immaterial to the considerations the NCACC by law should have taken into account in deciding whether to allow the consignment to reach its destination.

It is not in dispute that the consignment contained conventional weapons. This was conceded by the chairperson of the NCACC who held the view, without explanation, that conventional weapons, given the nature of the conflict in Zimbabwe, would not have aggravated the situation. This naive view aside, it also transpired that the matter was not even debated or considered by the NCACC in a formal meeting and that the chairperson simply gave permission for the consignment to be offloaded. The legislative requirements for decisions specified in the Act were apparently also brushed aside. The chairperson's explanation in this regard was that the steps to be taken by the NCACC must not be understood as separate individual steps, but must be viewed in their totality. (12) This is tantamount to saying that the chairperson or the NCACC determines when and how to comply with the legislative requirements. So much for the rule of law! Moreover, control over the whole process and the consideration of the various factors in coming to a decision, are functions assigned to the whole Committee acting collectively, and not to the chairperson.

3. INTERNATIONAL LAW PRINCIPLES AND GUIDELINES

In assessing the situation, South Africa, as a 'responsible member of the international community', could be expected to have taken into account a number of general as well as specific international law principles and guidelines. What role these principles and guidelines have played, if at all, is not ascertainable from the South African government responses to the debacle. But it is precisely the unsatisfactory manner in which the whole matter was explained by the government and the many uncertainties surrounding the actual event, that provided an opportunity for bringing the relevant international perspectives into the debate.

3.1 UN membership obligations

Of specific significance in this regard is article 55(c) of the UN Charter which places and obligation on the UN to promote, inter alia, universal respect for, and observance of, human rights and fundamental freedoms with a view to the creation of conditions of stability and well-being. Under article 56 all members of the UN pledge themselves to take 'joint and separate action' in co-operation with the UN for the achievement of the above. In a corresponding fashion, the International Court of Justice held in the Barcelona Traction case (13) that the basic rights of the human person create obligations erga omnes, that is obligations a state owes to the international community as a whole. However, the provisions about the respect for and observance of human rights are not without controversy with regard to the question whether they create legal obligations for states in view of the arguments by some commentators that the provisions only represent programmatic principles and that they lack the specificity necessary for direct application. Views to the contrary are also propagated. (14) Important though, is that the political and judicial organs of the UN have consistently interpreted these provisions as a whole to constitute legal obligations. Although they are of a general nature, they impose legal obligations on members states singly or jointly to defend respect for human rights. (15)

The principle of universality which underlies these developments means that all authorities are to respect the rights in question and that all individuals should benefit equally from them. Moreover, in the preamble to the International Covenant on Civil and Political Rights, to which South Africa is a signatory, states parties refer specifically to their obligations in terms of the UN Charter to promote universal respect for, and observance of, human rights and freedoms.

3.2 Due diligence and harm prevention

The principle of due diligence is a general principle of international law which requires conduct by a state that is reminiscent of good governance. As such it requires the introduction of control measures, legislative or otherwise, that are applicable to public and private conduct and are capable of preventing harm in other states. Although commonly applicable in environmental law, (16) this obligation of diligent harm prevention and control has a wider appeal and finds relevance in all cases where there is the foreseeability or likelihood of harm. In the Corfu Channel case,(17) the International Court of Justice introduced the concept of 'known risk' which requires a state to act preventively, in this instance, by forewarning other states of the mining of a sea strait. There is no reason why a state could not be also under a due diligence obligation to prevent (fur[her) harm to the citizens of another state by controlling activities on its own territory that may contribute to an already dangerous situation in another state. (18) In fact, this is one of the central themes in the Report of the International Commission on Intervention and State Sovereignty published in 2001 under the title The Responsibility to Protect.

Although departing, not from the concept of due diligence, bur from state sovereignty as responsibility, in substance the two principles share common ground. According to the Report, a parallel development to the post-Charter human rights regime is a "transition from a culture of sovereign impunity to a culture of national and international accountability. (19) Coupled with this development, the Report continues, is the establishment of new standards of behaviour and new means of enforcing those standards under a new meaning and scope of security. The latter includes human security, understood as security against threats to life, health, livelihood, personal safety and human dignity, which can be put at risk, not only by external forces, but also by factors within a country. (20)

States' responsibility to protect, as an integral par[ of the concept of state sovereignty, includes the responsibility to prevent. In respect of the latter there is a need, the Report states, to close the gap between rhetorical support for prevention and tangible commitment. It is interesting to note that in stressing the importance of responding to the root causes of conflict, states are reminded of their obligations in article 55 of the UN Charter dealt with above. Moreover, amongst the efforts aimed at root cause prevention, the Report makes specific reference to arms control and disarmament, including control over the transfer of light weapons and small arms. (21)

3.3 The Wassenaar Arrangement

The Wassenaar Arrangement (WA) is the first global multilateral arrangement on export control for conventional arms and dual-use technologies. The Arrangement was approved by 33 co-founding countries in July 1996 and operations began in September 1996. (22) While South Africa joined the Arrangement only during 2006, the control lists developed by the Arrangement were incorporated into the National Conventional Arms Control Act, 2002. As a means of contributing to internal and regional security and stability, South Africa is in agreement with the Arrangement's aim at preventing destabilising accumulations of arms by and within states by establishing a process of transparency, consultation and national policies of restraint, as well as promoting greater responsibility and accountability in transfer of arms. (23) Also relevant is the aim to prevent the acquisition of armaments if the situation in a region or the behaviour of a state becomes a cause for serious concern to the participating states. (24) The Arrangement also makes it clear that the decision to transfer or deny transfer of any item will be the sole responsibility of each participating state acting on the basis of national legislation and policies. (25)

Considering the following report by the International Crisis Group on developments after the March 2008 elections in Zimbabwe, South Africa's assessment of the situation when it had to decide on the transfer of the weapons consignment that ended up in the Durban harbour, is open to interpretation:
   State violence surged as Mugabe and his ruling ZANU-PF party
   rallied to force victory after the electoral losses. Tsvangirai was
   arrested five times in June along with other senior party members,
   MDC state media access was barred and most opposition rallies
   banned, while ZANU-PF militia launched violent attacks on MDC
   members, supporters and ordinary citizens. The MDC say some 85
   members have now been killed and 2,000 detained since April. Rural
   areas suspected of supporting the opposition have witnessed a
   systematic campaign of torture, murder and repression. At least
   2,500 people have been treated for injuries, up to 200,000
   displaced and food aid restricted to ruling party members after aid
   agencies were banned on 5 June. The run-off day itself was marked
   by widespread intimidation.

   A chorus of international condemnation from Western leaders
   together with pockets of criticism from the region followed. The UN
   Security Council denounced the violence in a series of statements
   before and after the June vote, while the European Union (EU) and
   Group of Eight (G8) states have since declared the final result
   illegitimate. The UNSC and EU are currently discussing the
   extension of targeted sanctions against members of the ZANU-PF
   regime and possible further measures. Reactions across Africa have
   been mixed. Election observation missions dispatched by the African
   Union (AU), Southern African Development Community (SADC) and the
   Pan African Parliament (PAP) reached the unprecedented verdict that
   the 27 June poll was not credible but this has not translated into
   official censure or punitive action against the Mugabe regime. On 1
   July, at the last African Union summit, heads of state avoided any
   direct criticism of Robert Mugabe who attended the gathering. Some
   SADC and other African countries, including Botswana, Zambia and
   Kenya, have taken an increasingly robust stance. By contrast,
   long-time mediator South African President Thabo Mbeki continues to
   refuse to speak out against Mugabe. (26)


Moreover, when South Africa incorporated the Arrangement's principles in the 2002 legislation and subsequently joined the Arrangement in 2006, it must have been aware of the commitments already made by participating states during the 5th plenary meeting of the Arrangement in 1999. At that occasion, the participating states "reaffirmed their commitment to maintain responsible national policies consistent with the purposes and objectives of the Wassenaar Arrangement; and to maximum restraint as a matter of national policy when considering licensing for the export of arms and sensitive dual-use items to all destinations, where the risks are judged greatest, in particular to regions where conflict is occurring". (27)

More specific are the Arrangement's Elements for Objective Analysis Concerning Potentially Destabilising Accumulations of Conventional Weapons which were amended by the December 2004 plenary meeting. (28) This document, inter alia, requires an assessment of the risk that the weapons in question might be used in the violation and suppression of human rights and fundamental freedoms or that it could lead to increased tension or instability in the region or to the exacerbation of an existing conflict. The same factors are also spelled out in the 2002 and 2007 Best Practice Guidelines for Exports of Small Arms and Light Weapons. (29)

3.4 Proposals for an Arms Trade Treaty

On 18 December 2006, the General Assembly of the UN adopted resolution 61/89 aimed at setting in motion a process for bringing into being a comprehensive, legally binding, multilateral treaty that will embody common international standards for the import, export and transfer of conventional weapons. This initiative was prompted by the absence of common international standards relevant to different aspects of the trade in arms, a factor the Assembly considered to be contributory to conflict, the displacement of people, and crime and terrorism. South Africa was one of the states that responded positively to this initiative by stating, inter alia, that:
   It is common knowledge that the spread of illicit arms and light
   weapons have caused havoc on the African continent by feeding
   conflicts and facilitating their escalation, thereby leading to the
   killing of hundreds of thousands of innocent civilians ... The
   primary responsibility for controlling the flow of arms rests with
   the governments that allow arms to be exported, imported, or
   reexported or to transit through territories under their
   jurisdiction or control. While states have an undisputable right to
   acquire conventional weapons for self-defence and law enforcement
   purposes, they also have a responsibility to do everything in their
   power to ensure that arms transferred by them are not used to
   violate human rights, to undermine development, or to commit acts
   of terrorism. (30)


In support of its stance, the South African government also invoked the provisions of the Organisation of African Unity's (OAU) 2000 Bamako Declaration on an African Common Position on the Illicit Proliferation, Circulation and Trafficking of Small Arms and Light Weapons. (31) Accordingly the African Heads of State and Government agreed that to address the issues dealt with in the Declaration, it must be ensured that the behaviour and conduct of member states and suppliers are not only transparent but also go beyond narrow national interests. In addition, member states must put in place appropriate measures to control arms transfers by manufacturers, suppliers, traders, brokers, as well as shipping and transit agents.

In further response to the General Assembly's envisaged Arms Trade Treaty (ATT), South Africa also stated unequivocally that a "prerequisite for an effective control system is to place an obligation on the control authorities of State Parties to implement and-use and end-user assurances". (32) Whether South Africa itself has complied with this requirement in the case of the Zimbabwean weapons remains uncertain. Moreover, South Africa also propagated the inclusion in the ATT of guidelines for states when making conventional arms transfers decisions. These guidelines include:

--whether the transfer would contribute to internal repression, including the systematic violation or suppression of human rights and fundamental freedoms;

--whether the transfer would be likely to contribute to the escalation of regional military conflicts or otherwise contribute to regional instability;

--whether the transfer would be in accordance with international law;

--whether the transfer would have an impact on sustainable development;

--whether the transfer would contribute to terrorism and crime; and

whether the transferred material is likely to be used for purposes other than the legitimate defence and security needs of the government of the country of import. (33)

Without distracting from the importance of these criteria, in conclusion South Africa raised what it referred to as the "most important aspect" relating to implementation, that is "the strict adherence to the criteria and comprehensive, accurate and regular reporting" on arms transfers. (34) As recently as July 2008, the Institute for Security Studies (South Africa) in a submission to Parliament, pointed out that the NCACC was in contempt of Parliament for failing to report quarterly to the legislature as required by law; that the watchdog body often operates under a shroud of secrecy around arms trading; that the NCACC has not consistently adhered to transparency provisions in the law; that the 2003 and 2004 annual reports were only made available in 2007; and that the NCACC remains in arrears with regard to publicly releasing the 2005 and 2006 reports. (35)

4. CONCLUSION

The Zimbabwean situation has once again exposed the deficits in the collective and individual responses by member states of the international community to internal situations of government-sponsored violence and oppressive rule. What happened in Zimbabwe is neither abnormal nor unexpected. It is not abnormal because the regime behaviour befits the conduct of political elites in Africa since the first scramble for independence half a century ago. It is not unexpected because it was building up over more than a decade without an effective intervention of whatever kind with a view to saving lives and preventing the economic decimation of a once prosperous country. The UN has also demonstrated that its sanctions regime remains vulnerable to the impulses of the veto right holders (that is the permanent members) in the Security Council. (36) But even if sanctions were imposed, their circumvention by other delinquent African members of the UN remains a reality. At the regional level the Southern African Development Community (SADC) and the African Union (AU), like the predecessor of the latter--the OAU, showed their impotence in dealing with the 'bad apples' amongst the African Heads of State and Government.

At the individual state level, the South African response to the political crisis in Zimbabwe over a long period of time has shown that it is far more comfortable for the government to lash out at Israeli conduct in the Occupied Territories or at the treatment of detainees in Guantanamo Bay, than to act against bad leadership in African countries. This moral displacement is a hallmark of the destitute nations of the Non-Aligned Movement (NAM) into which South Africa has become fully integrated. Thus, aggression by 'some powerful states' is repeatedly mentioned, but not the aggression of some NAM governments against their own citizens; the rule of law and democratic practices in international organisations are themes of high importance, but exist only in rudimentary form back home; Israeli atrocities in the occupied territories deserve condemnation in the strongest terms, but the atrocities of the Sudanese government in Darfur disappear under the words of praise for the AU's 'achievements' in 'reinforcing peace' in that country; lack of financial support for developing countries is bemoaned, but the mismanagement of national resources by some NAM governments do not make the agenda; and arms exporting countries are accused of not taking effective measures to restrict the illicit trade in arms, (37) while there is no expressed concern with how the virulent combination of corruption and nepotism in weak states with no institutional capacity to wield a monopoly of force, undermines control over contraband economies and the flow of conventional weapons to sub-state groups. (38)

More specifically, the handling of the Zimbabwean weapons incident by the NCACC--an oversight body established for the very purpose of ensuring a legitimate, effective and transparent arms control process worthy of international recognition--has raised serious questions about the reliability of the process and the mechanism's overall effectiveness. This is even more unfortunate in view of the fact that it happened at a time when longstanding allegations of government corruption in suspect arms trade deals with foreign companies have led to the most serious political crisis the country has experienced since 1994. All these incidents confirm the widespread conviction that the oversight bodies created to ensure accountable and responsible government in the post-apartheid political dispensation have not lived up to expectations, and that they have been compromised by the interests of a self-serving political elite that have become unmoored from their constitutional and moral anchors.

At the time of writing the National Conventional Arms Control Amendment Bill was being debated in Parliament. (39) An explanatory memorandum on the amendments states that the proposed amendments are oriented towards addressing two key objectives. (40) Firstly, to improve the regulatory role of the NCACC in relation to the transfer of conventional weapons in South Africa and, secondly, to bring the main Act in line with the business realities of the defence industry, whatever that means. The amendments relating to the first objective will, according to the memorandum, ensure the greater effectiveness of South Africa's arms control mechanism by promoting responsibility and accountability in South African arms transfers.

The Bill further purports to enhance the reporting obligations of the NCACC to Parliament by determining that reports must not only deal with exports, but also with all transfers authorised by the NCACC coupled with adequate information on all transfers authorised. Also noteworthy is that access to information and the provision of reasons for administrative action taken by the NCACC shall fall under the Promotion of Access to Information, 2000 (Act No 2 of 2000) and the Promotion of Administrative Justice, 2000 (Act No 3 of 2000), respectively. This has the effect that sections 32 (access to information) and 33 (just administrative action) of the Constitution, coupled with section 36 (limitation of rights), shall form the proper rights based framework within which the NCACC's activities will be assessed. It is debatable whether the Zimbabwe weapons incident and the public response to it prompted a reconsideration of the main Act and the decision to effect certain amendments to it. That the amendment process commenced shortly after the May incident, suggests more than a mere coincidence, in which case a positive outcome may well be in the making.

REFERENCES

(1.) See the following: Human Rights Watch Reports: "All Over Again: Human Rights Abuses and Flawed Electoral Conditions in Zimbabwe's Coming General Elections", Vol 20, No 2(A), March 2008; and "'They Beat Me Like a Dog': Political Persecution of Opposition Activists and Supporters in Zimbabwe", August 2008. (Both reports available at http:// www.hrw.org, accessed on 5 September 2008). See also Amnesty International "Zimbabwe: State-Sponsored Violence and Coercion Create Fundamentally Flawed Election", 27 June 2008. (http://www. amnesty.org, accessed on 10 August 2008.)

(2.) New York Times, "Zimbabwe Arms Shipped by China Spark an Uproar", 19 April 2008. (http://www.nytimes.com/2008/04/19/world/africa/ 19zimbabwe. html, accessed on 6 May 2008); and Mail&Guardian-online, "Arms ship turns tail", 25 April 2008. (http://www.mg.co.za, accessed 25 April 2008.)

(3.) See New York Times, op cit.

(4.) Republic of South Africa, National Conventional Arms Control Act, 2002 (Act No 41 of 2002), section 1, "trade in conventional arms".

(5.) Ibid, section 1, "services".

(6.) Ibid, section 1, "convey" and "conveyance".

(7.) Ibid, established in terms of section 2 of the Act..

(8.) Ibid, section 3.

(9.) Ibid, section 14(3)(d).

(10.) Ibid, section 15(c)-(e) and (k).

(11.) Ibid, in section 1 the term "export" means the "transfer of conventional arms from the Republic to any place outside the Republic".

(12.) Beeld (Pretoria), "Zim wapens 'sou niks vererger'", 16 May 2008.

(13.) International Court of Justice, Barcelona Traction' Light and Power Co Ltd, International Court of Justice, The Hague, ICJ Reports, No 343, 1970, p 3.

(14.) See for instance the commendable work by Orakhelashvili A, Peremptory Norms in International Law, Oxford University Press, Oxford, 2006, pp 53 et sq.

(15.) See Simma, B, Mosler, H, Paulus, A and E Chaitidou (eds), The Charter of the United Nations: A Commentary Vol II, 2nd Edition, Oxford University Press, Oxford, 2002, pp 917-923.

(16.) Birnie, P and A Boyle, International Law and the Environment, 2nd Edition, Oxford University Press, Oxford, 2002, pp 112 et seq.

(17.) International Court of Justice, United Kingdom v Albania, ICJ Reports, The Hague, 1949, p 4.

(18.) See also Skogly, S I, and M Gibney, "Transnational Human Rights Obligations", Human Rights Quarterly, Vol 24, No 3, 2002, pp 781-798.

(19.) International Commission on Intervention and State Sovereignty, Report on the Responsibility to Protect, International Development Research Centre, 2001, p 14, par 2.18.

(20.) Ibid, pp 14-15.

(21.) Ibid, pp 19-23.

(22.) The Wassenaar Arrangement, The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual Use Goods and Technologies: Basic Documents, February 2008. (http://www.wassenaar.org, accessed 10 September 2008.)

(23.) Republic of South Africa, Department of Foreign Affairs, See "Wassenaar Arrangement", undated. (http:llwww.dfa.gov.za/foreign/ Multilateral/inter/wasse.htm, accessed 10 September 2008.)

(24.) The Wassenaar Arrangement, The Wassenaar Arrangement on ..., op cit, p 8 (Initial elements).

(25.) Ibid, p 9.

(26.) International Crisis Group, Negotiating Zimbabwe's Transition, August 2008. (http://www.crisisgroup.org/home/index.cfm?id=3535&l=1&gclid= Clzwk72x4JUCFQ9KQgodlhpxYw#C1, accessed 12 September 2008.)

(27.) The Wassenaar Arrangement, The Wassenaar Arrangement on ..., op cit, p 77.

(28.) Ibid, pp 22-23.

(29.) Ibid, pp 27-28.

(30.) UNODA, Response by the Republic of South Africa to the Request by the Secretary-General for Member States to Provide Views on a Legally Binding Instrument establishing Common International Standards for the Import, Export and Transfer of Conventional Weapons, undated. (http:// disarmament.un.org/U NODA_Web_Docs/CAB/ATT/South%20Africa. pdf, accessed 15 September 2008.)

(31.) Global Policy Forum, Bamako Declaration on an African Common Position on the Illicit Proliferation, Circulation and Trafficking of Small Arms and Light Weapons, December 2000. (http://www.globalpolicy.org/ security/smallarms/regional/bamako.htm, accessed 15 September 2008.

(32.) UNODA, op cit, p 5.

(33.) Ibid, p 6.

(34.) Ibid.

(35.) Institute for Security Studies, Arms Management Programme, "Institute for Security Studies Submission on the National Conventional Arms Control Amendment Bill", 28 July 2008. (http://www.iss.org.za, accessed 15 September 2008).

(36.) A July 2008 attempt by the United Nations Security Council to impose UN sanctions, including and arms embargo, on Zimbabwe was vetoed by two permanent members, Russia and China, with South Africa also voting against the resolution.

(37.) Non-Aligned Movement, see the Final Document of the 11th Summit of the Heads of State or Government of the Non-Aligned Countries, Cartagena, Colombia, 18-20 October 1995, p 6.

(38.) See for instance Pugh, M C, Cooper, N and J Goodhand, War Economies in a Regional Context: Challenges of Transformation, Lynne Rienner Pubishers, 2004, p 19. See also: Rotfeld, A D, "Introduction: Rethinking the Contemporary Security System", in SIPRI Yearbook, Armaments, Disarmament and International Security, Oxford University Press, New York, 1999, p 1 and Karp, A, "The Arms Trade Revolution: The Major Impact of Small Arms", in Roberts, B (ed), Weapons Proliferation in the 1990's, MIT Press, Cambridge, 1995, p 7.

(39.) Republic of South Africa, National Conventional Arms Control Amendment Bill [B 45 - 2008], in Government Gazette, No 31078, 23 May 2008.

(40.) Parliamentary Monitoring Group, National Conventional Arms Control Amendment Bill: Deliberations and Voting, 17 September 2008. (http:// www.pmg.org.za/report/20080917-national-conventional-arms-control amendment-bill-deliberations, accessed 20 September 2008.)

Prof Hennie Strydom

Professor in Public International Law

University of Johannesburg
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