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DEFENCE PORTFOLIO COMMITTEE DEFENCE PORTFOLIO COMMITTEE 17 May 2006 PROHIBITION OF MERCENARY ACTIVITIES AND REGULATION OF ACTIVITIES IN ARMED CONFLICT BILL: BRIEFING Chairperson: Ms T Tobias (ANC) Document handed out: SAPS Presentation: Draft Legislation on Mercenary Activities and Foreign Military Assistance Interdepartmental Task Team Presentation on Mercenary Activities Bill (2005): Part 1, 2 & 3 Prohibition of Mercenary Activities and Prohibition and Regulation of Certain Activities in Areas of Armed Conflict Bill [B42-2005] SUMMARY The Department of Defence (DoD) and the South African Police Service (SAPS) made presentations to the Portfolio Committee of Defence on the Prohibition of Mercenary Activities and Prohibition and Regulation of Certain Activities in an Area of Armed Conflict Bill. The first presentation by the Department of Defence was an Inter-departmental effort by the Departments of Foreign Affairs), Home Affairs, Justice, South African Secret Service (SASS), National Intelligence Coordinating Community (NICOC), National Intelligence Agency (NIA) and SAPS. SAPS then made their own presentation to the Committee. MINUTES The Chairperson welcomed members from the department and SAPS. She mentioned that the committee was supposed to hear presentations from five different Departments and that only two were present. She stated that only the NIA had indicated that they would not be presenting to the committee. Mr Ali-Sha Sayed (DA) complained that quorum had not been reached and that no decisions should be taken as yet on the presentations as he would have to go back and evaluate all the findings. Mr V Ndlovu (IFP) stated that they had requested to obtain documents two or three days before meetings as this would allow them to engage effectively. He had thought that the meeting was meant to be on Friday and understood the amount of pressure to pass the Bill, but felt that things should be done properly without breaking the rules. Members had been informed abruptly about the meeting that was taking place that day. The Chairperson responded that the staff should explain what had happened as she had given them prior notice of the meeting. With regard to the issue of a quorum, she had received two or three apologies from members. She had asked the Department before to submite documents timeously to the committee. Mr Ndlovu stated that the documents before them were not the ones that had been received with the Bill the previous year. He appealed to the Chairperson that the issue of staff be dealt with by at a later stage and not in the meeting. Presentation by Department Mr T Motumi (Deputy Director-General for Defence), stated that the presentation had been a product of inter-departmental effort and that no less than nine Departments had participated. An Interdepartmental Task Team had been set up to review the Regulations of Foreign Military Assistance (RFMA) with the view to improving its effectiveness. This had been under the instruction of the Cabinet Lekgotla of May 2004 in response to increased participation of South African citizens in conflicts around the world. Mr Motumi called on Mr Njikela (Defence Deputy Director: Legal Support) to present the Bill. Mr Njikela stated that they had agonised as to how they would present the Bill. Some documents before the members of the committee had been presented the previous year. The Bill before the committee was based on deliberations presented to Cabinet. These had been result of the consultations that the DoD had conducted and the various inputs from the different departments. The gaps identified had been the definition of ‘foreign military assistance’, on which there had been much contention, ‘humanitarian activities’, which had been excluded from the definition of ‘foreign military assistance’, enlistment in foreign armed forces and penalties. Other gaps included difficulties with gathering of evidence, reluctance to prosecute by the State and alignment of RFMA with National Conventional Arms Control Committee (NCACC) Act. Discussion Mr Ndlovu asked if Clause 11 talked of prosecuting someone who was not a South African citizen. If a person who resided in Lesotho committed a crime there and ran away to South Africa, would they be liable for prosecution in South Africa? Mr Sayed stated that the presenter had preempted a lot of questions and he wished to commend him for that. He asked what period had been specified for those who had already been employed to seek exemption, and if the NCACC was competent enough to pass the Bill given its track record. Dr G Koornhof (ANC) stated that much of what had been presented would come out in the public hearings and so there was no need to get into the details. He commented that the Bill had been the product of nine departments and yet was presented by the Minister of Defence, and asked what the time frame was to complete the Bill and get it signed by the President. The department had spelt out the gaps but what had been the problem that existed in practice? Mr M Booi (ANC) asked who exactly was a mercenary in the South African or international context. Was the Bill correct in its reference in the title to ‘mercenary’? Adv H Shmidt apologised for being late. He asked if there had not been a Commonwealth Agreement providing for nations to join each other's forces in case of conflict? Mr Sayed asked what the criteria would be if they said that humanitarian organisations could apply and at the same time the President would provide exemption. There also seemed to be no clarity as to what constituted private military operations and private security companies because many security companies had been working with the United Nations. Was government now saying that it was okay to assisted the UN but if that company or some member came across to South Africa they could then be arrested? The Chairperson stated that Clause 6 said nothing about Parliament, which was the very institution that legislated. Also the explanatory memorandum was open to many interpretations. Where did they place the issue of human shields? If the ANC Youth League, of which she was a member, decided to be human shields in the conflict between Morocco and Western Sahara, how would they be protected by the Bill? What was the Bill saying about such conflicts? Mr Motumi responded that one of the things that should have been amplified in Clause 6, was that the provision that Parliament should also be informed. He believed that the NCACC was fully competent to do the job. A Scrutiny Committee existed below the NCACC to ensure implementation, and if there was a questioning of competency of NCACC then there should be questioning of state organs as Ministers and other officials sat on the NCACC. Mr Njikela responded that there had not been time frames specified by the Department. This had however been approved as a priority Bill. Assistant Commissioner Jacobs (SAPS) responded that there had been no proclamation of an area of armed conflict. This had been the first problem that they had encountered. If there were no certainty that a certain Bill was applicable in a certain area then how would one prosecute in that regard? SAPS had gone to Universities and the DFA to ask for legal opinions in terms of international law, and in terms of the latter there need not be declaration of war for an armed conflict to exist. There had not been much assistance in proving this point. From the law enforcement side, the bottom line had been to have legal certainty that the Act was applicable to a certain area or not. It had also not been a problem to investigate trans-national crime. Interpol was doing this all the time. Another problem would also be if an individual had been employed by the government of that country to prolong the war. There would not be cooperation from that government to prosecute or investigate that individual. With regard to people applying to offer humanitarian assistance, if there existed a UN Security Council declaration or resolution, it had been meant for governments and not individuals. The international community had considered mercenary activity illegal. Adv Shmidt stated that the question on the Commonwealth agreement had not been answered. Mr Motumi responded that each of the Commonwealth countries had their national legislation and commonwealth citizens wanting to serve in other forces have had to apply the law of their jurisdiction. Mr Njikili responded that the purpose had been to regulate and not prohibit enlistment. He stated that whatever the President did (Clause 13) was subject to Section 9. The idea had been to mitigate the negative spin-offs that might come out of humanitarian aid. Dr Koornhof asked if the intention had been to regulate and prohibit? Mr Motumi responded that the intention of the Bill had been to regulate but also to prohibit. The Bill did use the word ‘prohibition’. Presentation by SAPS Mr Jacobs thanked the committee on behalf of SAPS for the opportunity to present to them. He stated that the SAPS fully supported the Bill and would police it. They had not been successful thus far with prosecutions and had only managed to succeed in plea bargains. Another issue had been that of liberation struggles. The Geneva Conventions and Protocols still regarded those as conflict. It had also been difficult to investigate cases in countries that were experiencing conflict without the assistance of the government in power, which in many cases happened to be the employers of the persons being investigated. Mercenary activities often took place under the guises of security activities and even humanitarian activities. The problems experienced included the recruitment, training and financing of foreign military assistance not being addressed in the Act as well as negotiations to perform foreign military assistance not addressed in the Bill. The Bill would address the legal impediments experienced in enforcement. Discussion Mr Booi asked what happened when the government itself was considered illegitimate. Mr Sayed asked if there was any other country that had the same legislation that could assist South Africa and if the matter was not already addressed in the Anti-terrorism Bill. Ms C Johnson (ANC) asked to what extent did the Bill dovetail with existing legislation in terms of the Geneva Convention and other agreements. Mr Jacobs responded that investigations would be intelligence driven. In a policing context it was not important if a government was illegitimate; all that mattered was that they were assisting. In a political context the matter would be different. If there had been overlap then it could possibly be explained. The definition of anti-terrorism comprised of three necessary parts. Mr Motumi responded that there had been extreme interest in this piece of legislation. Other interested parties had tried to submit their input directly to the Department but were deflected. The Chairperson allowed the Department to leave. The Chairperson stated that she had gone through all the submissions and they were the same in terms of the issues raised. Few should therefore be called in. Dr Koornhof stated that the committee should start with hearings and see then determine how many spaces there were. Adv Shmidt stated that there should be a balance and he had short-listed 15 names. Mr Sayed stated that they needed to have sampling, and suggested that two days would not be sufficient. The Chairperson stated that some submissions had been there since the previous year. It would not be the first time they were told that they would have present before the Committee. It was a given that not everybody could be given chance to speak. Mr S Ntuli (ANC) stated that it did not mean that all the submissions would be taken. Mr Booi stated that he had interpreted Adv Shmidt to be giving criteria. Mr Sayed stated that Safenet had sent a letter of complaint to him. The Chairperson asked why she did not have a copy of the letter and why her office had not been contacted. Dr Koornhof stated that the committee should make a list of 11 to be invited or rather the 15 as Adv Shmidt had stated. Adv Shmidt asked why the Bill was being rushed and stated that the DA took no exception to this. The Chairperson stated that there had been no rushing as she had explained before Adv Shmidt had arrived. She stated that the Committee should work as one and not come with DA politics or any other party politics. So far the Committee had worked well together and this should continue. Dr Koornhof stated that they were fighting about a non-issue. The Chairperson stated that Adv Shmidt should submit his list of 15 and she would study it and decide who to admit and leave out. The Committee could always object to this. The meeting adjourned.
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