Briefing by the Department of Defence on Regulation of Foreign Military Assistance Bill [B54 -97]

Meeting report

SELECT COMMITTEE ON SECURITY AND JUSTICE
11 March 1998
BRIEFING BY DEPARTMENT OF DEFENCE ON REGULATION OF FOREIGN MILITARY ASSISTANCE BILL [B54 -97]

Document handed out:
Summary of the Regulation of Foreign Military Assistance Bill (B54-97) (see appendix)

Minister Asmal, the Chairperson of the National Conventional Arms Control Committee, gave the committee a briefing on the Regulation of Foreign Military Assistance Bill [B54-97]. As background to the Bill, he said it was an initiative of the National Conventional Arms Control Committee. The Bill arose out of a need to deal with rumours by the international arena that South Africa was involved in arms conflict.

Concerning mercenaries who fight in other countries for gain, Minister Asmal said that the committee initially just wanted to regulate it. However submissions from interested parties, including non-governmental organisations, wanted the activity to cease all together. The committee accepted the amendment as seen in section 2 of the Bill.

Minister Asmal informed the committee that the essence of the Bill was, what was to be done when South Africa had expertise to sell to other countries. He said that anyone, who wanted to supply military-related services to other countries, must register with the National Conventional Arms Control Committee for a permit. Only bona fide bodies were exempted from registering. The Minister of Defence would authorise the service, according to section 6, which would be looked at individually.

Regarding section 8, Offences and penalties, Minister Asmal informed the committee that the penalty was initially one million rand. It had changed to forfeiting goods to the State and punishment at the discretion of the court.

The Minister ended his briefing by saying that no other country had such a comprehensive ruling on foreign military assistance and many countries are interested in the Bill.

The Chairperson, Mr Moosa, opened the floor for questioning. He began by asking what would happen when mercenary activities took place for ideological gain, not for private gain. The Minister said that that was a far-fetched example and those examples would be looked at when they arise so that the Bill could be amended.

Mr Selfe (DP) wanted to know how often the National Conventional Arms Control Committee met and he queried the definition of "person" in the Bill. He asked what the legal procedure was if the person was not a South African citizen. The Minister replied that the Committee met once a month to discuss issues. Concerning the definition of "person", the courts have no jurisdiction if the person does not have residence in South Africa, according to section 9.

Dr Koornhof (NP) asked the Minister whether Parliamentary Committees, according to section 6.2, included the Select Committee of Security and Justice and he wanted to know who objected to the Bill in principle whilst consultation was taking place. Minister Asmal informed Dr Koornhof that the Select Committee was included and nobody objected to the principles of the Bill.

After the Minister left, the committee members informally discussed the Bill. The general feeling, according to the Chairperson, was that everyone was in favour of the Bill, except for a few technicalities. He did add that Mr Self's question about "person" was an important one and needed to be looked at more closely.

ANNEXURE 1
Summary of the Regulation of Foreign Military Assistance Bill (B 54 - 97)

Introduction
The Constitution of the Republic of South Africa contains certain principles which govern national security in the Republic. One of these principles are contained in section 198 (b) of the Constitution.
It precludes any South African citizen from participating in national or international armed conflict, except as provided for in the Constitution or national legislation. The objectives of the Bill is therefore to give effect to the above constitutional provision by regulating the provision of military assistance by individuals or juristic persons.
The Bill also seeks to expand the present functions of the National Conventional Arms Control Committee by including, in its mandate, the regulation of all forms of military-related assistance by South African citizens.
What follows is a summary of all the clauses of the Bill.

Clause 1
This clause contains the definitions of some of the words used in the Bill.
"armed conflict" includes any armed conflict between -
· the armed forces of foreign states;
· the armed forces of a foreign state and dissident forces or
· armed groups.
"Committee" means the National Conventional Arms Control Committee.
"foreign military assistance" means military services or military-related services, or
any attempt, encouragement, incitement or solicitation to render such services in the
form of-
· direct participation in combat;
· advice or training;
· personnel, financial, logistical, intelligence or operational support;
· personnel recruitment;
· medical or para-medical services;
· procurement of equipment;
· security services for the protection of individuals involved in armed conflict or their property or
· any other action that has the result of furthering the military interests of a party to the armed conflict.

Clause 2
This clause prohibits any person within the Republic or elsewhere from rendering or offering to render any foreign military assistance unless he or she has been authorised to do so and the agreement, in terms of which the assistance is to be provided, is approved.

Clause 3
This clause sets out the procedure to be followed for obtaining the necessary authorisation referred to in the above clause.
An application in the prescribed form and manner must be submitted to the Committee, together with payment of the prescribed fee.
The Committee will then consider the application and make a recommendation to the Minister.
The Minister may then refuse or grant the application based upon the recommendation. Any authorisation granted shall not be transferable.

Clause 4
The granting of an authorisation to offer foreign military assistance does not mean that the person is now free to render the military assistance. Such person must first submit the agreement in terms of which the assistance is to be provided, to the Committee who will then make a recommendation to the Minister. The Minister may then refuse or grant the application for approval.

Clause 5
All the authorisations and approvals granted must be registered by the Committee.
The Committee must also submit quarterly reports with regard to the register, to the
National Executive and to the Portfolio Committee on Defence.

Clause 6
This clause sets out the criteria for the granting or refusal of authorisations and approvals.
These include the impact that foreign military assistance will have on human rights in a given country and the destabilising effect it will have in the region in terms of security and the balance of power.

Clause 7
Any person or company that does not follow the procedures for gaining authorisation and approval from the Committee would be subject to penalties of up to 10 years in jail, a one million rand line or both.

Clause 8
This clause extends the jurisdiction of South African courts in that it allows for any court in the Republic to try a person for an offence referred to in clause 7even if the act or omission to which the charges relates was committed outside the Republic.

Clause 9
The Minister may make regulations on any matter which may be necessary for the application of this Act.
Clause 10
This clause empowers the Minister to exempt persons or groups from complying with the provisions of clauses 3 and 4.

This Act is the Regulation of Foreign Military Assistance Act.