Prohibition of Mercenary Activity and Prohibition and Regulation of Certain Activities in an Area of Armed Conflict Bill [B42B-2005]: hearings

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Defence and Military Veterans

23 May 2006
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DEFENCE PORTFOLIO COMMITTEEDEFENCE PORTFOLIO COMMITTEE 23 May 2006 PROHIBITION OF MERCENARY ACTIVITY AND PROHIBITION AND REGULATION OF CERTAIN ACTIVITIES IN AN AREA OF ARMED CONFLICT BILL: HEARINGS Chairperson: Ms T Tobias (ANC) Note: The meeting of 22 May 2006 was not minuted by PMG as it did not appear in the Order Paper. The submissions from that meeting will be made available as soon as possible. Documents handed out: Prohibition of Mercenary Activities and Prohibition and Regulation of Certain Activities in Areas of Armed Conflict Bill [B42-2005] IPOA Code of Conduct IPOA Commentary on the Bill IPOA Quarterly publication IPOA copy of PowerPoint presentation on behalf of International Peace Operations Association (IPOA) and Private Security Company Association of Iraq (PSCAI) British Association of Private Security Companies copy of PowerPoint presentation given preceding day British Association of Private Security Companies written submission to the Committee British Association of Private Security Companies comment on the Bill (one-page summary) Written submission by International Committee of the Red Cross as sent to Committee members Written submissions by SaferAfrica on the Bill, submitted to the Committee in November 2005 SUMMARY The International Peace Operations Association (IPOA) together with the Private Security Company Association of Iraq, the International Committee of the Red Cross (ICRC) and SaferAfrica made submissions on the Bill. All three organisations expressed concern about the definitions section of the Bill, in particular the alignment, in one paragraph, of "military operations" and "assistance". IPOA, an organisation that aimed to make peace keeping and stabilisation operations more successful, had 24 members who subscribed to a Code of Conduct. Security companies played a threefold role; in the support sector, in security and protection from banditry and in reform, training and rebuilding. Many South Africans were involved in peacekeeping work and would be adversely affected by the Bill, would leave their security jobs, and thereby prejudice the industry. The problems of delays in licensing were raised. IPOA suggested that the definitions must be re-examined and suggested that the Bill should rather attempt to focus on conduct that violated human rights. Support services, in which most South Africans were involved, were vital. International peace operations had international legitimacy and should not be stopped by the Bill. Although IPOA was fully supportive of regulation and claimed that its members were ethical, accountable and transparent, this Bill did not meet the objects intended. IPOA made suggestions on the National Conventional Arms Control Committee, and to the clauses dealing with extraterritorial jurisdiction. Questions were asked on the ambit and enforcement of the Code, and the possible rewording of the Bill to permit companies to operate, and whether there were international guidelines. Further clarity was given on the definition of mercenary, on how the Bill could dilute peace operations, and on members of the SA National Defence Force who took leave and worked for private companies. Members expressed concerns about whether security companies and their employees really had honourable intentions or were exchanging information. The British Association of Private Security Companies were asked by the Chairperson to clarify three points in their summary document. These related to the composition of the NCACC, the consultative process in the drafting of the Bill, and the suggestion that the Bill be withdrawn and redrafted in its entirety. The ICRC was mandated, through the Geneva Convention, to assist in all matters involving international humanitarian law. ICRC foresaw problems with some of the definitions in Clause 1 of the Bill. The exclusions listed under Clause 1(2) were too wide. Clause 2, defining mercenaries, was problematic. The ICRC suggested that a reference to International humanitarian law be specifically included in Clause 9. Further substantive submissions on the principle of regulating and prohibiting humanitarian assistance were made, since military and humanitarian assistance should clearly be distinguished. Clause 5 was termed very broadly and could lead to problems. ICRC understood the concerns about organisations that claimed to be humanitarian, but were engaging in other activities. Possible solutions were posed to this problem, and to the wording of Clause 11 on extra territorial jurisdiction. Questions were asked on extraterritorial jurisdiction, on exemptions and whether they should be granted to bodies or organisations. The Swiss government initiatives in drafting uniform rules were discussed, and although the ICRC could not comment upon private companies they concurred that rules were needed. The ICRC clarified that no action had needed to be taken against its delegates, and the controls outlined. The distinction between military and humanitarian assistance was clarified further. SaferAfrica was an NGO, involved in the broad peace and security process, which rendered services to governments, NGOs and other stakeholders, in implementing policy and legislation. It gave technical and financial support and training, and was currently involved in projects to identify and reduce stockpiles and caches of weapons. All activities of SaferAfrica were geared to sustaining peace and they would be severely compromised if the Bill were to be enacted as presently worded. The definition in the Bill of "assistance or service" included their activities. The Bill could result in many unintended consequences. Although it was easy to pinpoint the areas needing correction, it was far more difficult to propose a solution. However, as a general point SaferAfrica believed that the definition of service needed to be looked at far more carefully to avoid unintended difficulties. Questions were raised on whether SaferAfrica provided assistance to the South African government, on proposed wording of sections, on measuring the effect of actions, and whether intent or result should be the deciding factor. Questions were also asked on the controls instituted on SaferAfrica’s staff, on the amnesty period, and clarification was given on whether the transitional period would apply in all situations. MINUTES International Peace Operations Association (IPOA) Mr D Brooks (President) reported that his submissions would give the perspective of the trade association, IPOA, and would also report on behalf of the Private Security Company Association of Iraq (PSCAI). IPOA was a trade association representing 24 companies who were involved in peacekeeping operations at a number of levels. The goal of IPOA was to make peacekeeping and stabilisation operations more successful. It had drawn up, and its member organisations acceded to, a Code of Conduct promoting industry standards, aimed at stabilising and promoting law and good regulation. IPOA also undertook advocacy, education and outreach programmes. PSCAI was a trade association involved with the Iraqi Government, presently assisting it to create rules and norms on how to regulate private security companies operating in Iraq. They assisted also in establishing laws to govern the post-conflict situation. PSCAI had asked that their concern be expressed, together with IPOA, that the Bill ran contrary to the democratic ideals that the organisations were attempting to promote, and would penalise the individuals and ethical companies trying to perform a service. Mr Brooks reported that there were a number of South Africans involved in private security companies, and they would fall foul of the Bill as drafted. He reported that South Africa set the ethical standards for both peacekeeping and peacemaking, and that currently about 2000 South Africans were involved in peace keeping operations, holding around tenth position in the world. IPOA did not represent the entire industry, and there were probably more South African civilians than South African military involved in peacekeeping operations. The Bill as tabled could undermine peacekeeping operations around the world and could affect NGOs as well as private companies and individuals. If South Africans had to withdraw their specialist skills the costs of peacekeeping would rise. If licensing were to become a requirement, there would inevitably be delays. Whereas the United Nations suffered delays, taking up to eight months to deploy forces, the private sector was able to do so within two weeks and make a substantial difference to the lives and livelihood of people in affected areas. Mr Brooks urged that South Africa should not make it impossible for South African citizens to be deployed. Those involved in security companies did so at three levels. The support sector, in which 90% of South Africans worked, provided assistance in various logistics, air and aviation work, water purification, and so forth, and the United Nations (UN) peacekeeping forces were heavily dependent on this assistance. The second sector comprised private security companies who provided security and protection either to the UN or to specific property or projects to guard against banditry. The third sector comprised the reform companies, who would assist, once conflict had died down, in rebuilding by changing the situation, reforming the laws and structures, training locals as border guards, training police and professionalising the military. Many private security companies in Iraq were being used in the reconstruction process and it was estimated that around 800 South Africans were working in this field. The UN believed that companies who were not engaged in violation of human rights presented no problem in areas of conflict. Therefore the UN believed that it was necessary to focus on companies or organisations that committed human rights abuses. The UN used the private sector both for its own security and to support other efforts, such as protecting refugee camps, its own headquarters and its personnel. The UN Blue Helmet forces rotated, but the UN would get stability from using the private sector companies, who in turn would hire and train locals, helping with the reconstruction effort. The private companies were able to provide specialist services and research. This was particularly important since many of the countries in the West had abrogated their responsibility from providing services in helicopter flights, water purification, logistics companies and the like. International peace operations had their own legitimacy and the South African government should pay attention to the stamp of legitimacy from the international community. The focus of the Bill was clearly on mercenary activity, but the wording did not make this clear. Therefore IPOA submitted that as a first step there needed to be a better definition of "mercenary". It was defined in Article 47 of the Geneva Convention, but this definition was far too wide and it was suggested than rather than trying to define the character, the conduct should be the basis for the definition. It was clear that any industry promoting peace and stability was critical because of the West’s reluctance to become involved. IPOA believed in transparency and hoped that by forming an association it would weed out the elements that did not contribute to the peace process. IPOA believed that a company operating legally should be able to provide every essential service. IPOA supported enhanced responsibility and believed that human rights laws were appropriate in governing behaviour. It had a Code of Conduct that had been drawn up after extensive input from NGOs and humanitarian agencies, and this might be a good starting point for national legislation. In regard to the National Conventional Arms Control Committee (NCACC) IPOA suggested that this be supplemented by a panel of experts drawn from industry and NGOs in order to ensure greater expertise. In regard to extra-territorial jurisdiction, the USA had legislation under the Military Extraterritorial Jurisdiction Act (MEJA), which would permit any person or company committing a felony to be tried in the home territory, and similar legislation or principles would ensure that companies did their work in a legitimate way. In summary, IPOA believed that the Bill as drafted had the potential to cause harm to humanitarian efforts, which was not intended, and suggested that it needed to be reconsidered. Discussion Mr M Shah (DA) stated that there were bound to be violations in any situation where it was intended to establish peace and security. He asked whether IPOA’s system made provision for disciplinary matters, whether the Code of Conduct was uniform, or whether each company could operate under its own rules. Dr G Koornhof (ANC) asked if the member companies of IPOA would have a problem if the Bill sought to regulate their activities. He asked what would happen if member companies were to deviate from their stated intention, and whether IPOA could implement its Code or police its own members. Mr Brooks replied that as a trade association IPOA tried to be proactive in preventing problems, but if they did occur IPOA did not have a team to enforce. Companies agreed to be bound by the Code of Conduct and violations would be addressed by way of disciplinary measures; IPOA could remove someone from the trade association, which would effectively be a "commercial kiss of death". It could not, however, institute or follow through criminal procedures. IPOA was setting up an external advisory board to check that its procedures were effective and in line with international standards. In regard to the Code of Conduct Mr Brooks stated that it had been written, with input from NGOs, along "worst case scenario" lines – to guard against bad operators. The industry, which had also given input, was happy with the provisions. The industry was willing to be ethical, and the majority of the regulations were aimed at activities not carried out by legitimate companies, such as use of poison gas. The industry was happy to support the Code precisely because it was an ethical industry, and the Code made commercial sense. No country would be prepared to hire private security companies unless they were convinced that the companies were prepared to act ethically in an accountable and transparent way. Adv H Schmidt (DA) asked for clarification whether IPOA believed that only mercenary activity should be prohibited, while security services and support operations should be permitted to operate. Mr Brooks replied that there were three general categories of service in the industry; logistics and support, private security and reform companies. In the UN, private security companies were treated separately as they were regarded as supporting peace and stability operations. Security in any post-conflict situation was a huge challenge, but was in fact only part of the solution. The solution generally came from elsewhere in the process of reconciliation, restructuring of government and creation of a proper democracy. IPOA was mostly limited to the security side whilst NGOs were operative in the other areas mentioned. IPOA was in favour of regulation, but felt that prohibition was not appropriate. Mr O Monareng (ANC) commented that government believed it necessary to safeguard against activities that were not in line with the creation of peace and stability. He believed very strongly that the government should spearhead initiatives. He reminded Mr Brooks that UN and African Union (AU) precedents and definitions of "mercenary" already existed, and he commented it might be problematic to try to reinvent these definitions. He requested Mr Brooks to clarify why the Bill was seen as unduly restrictive, particularly in view of the fact that it was not intended to be retrospective, and that there would be time for companies to correct their activities. Mr Brooks agreed that the law could focus on human rights violations and illegal operations, but the reality was that post-conflict there often was no proper law. IPOA would try to improve the oversight of operations and insist on legal operations. The reputable companies were fully supportive of this and in fact in Iraq had cited, as one of the problems, the fact that there were not enough contract officers to do oversight. IPOA was fully supportive of independent observers and trained contract officers to ensure that companies operated professionally, ethically and were held accountable. IPOA was in favour of regulation, but would not support a blanket prohibition. Mr V Ndlovu (IFP) and Mr J Schippers (ANC) asked why IPOA suggested a panel of experts other than NCACC. The Chairperson also asked for clarity on the NCACC. Mr Brooks clarified that initially IPOA had thought that perhaps an independent panel of NGOs and experts should be set up to ensure proper operations, but then it had been suggested that NCACC would be appropriate. IPOA had agreed, but had then suggested that additional members might be useful simply to broaden the areas of expertise and involve the industry. Mr Ndlovu asked for specific examples of how the Bill would dilute the effect of peace operations. Mr Brooks stated that South Africans who were active in peace operations in Sierra Leone, Liberia, Iraq and the Democratic Republic of Congo (DRC) were concerned that the Bill could be interpreted too broadly, and criminalise their activities, rendering them liable to prosecution when they returned to South Africa. If there were any question about the legality of their efforts to support peace and stability they would be likely to leave their work. This would undermine many of the efforts in which they were involved. Mr Schippers asked for comment on similar USA legislation. This question was not addressed specifically. The Chairperson asked for clarity on extra territorial issues. She asked how much IPOA was able to influence the USA on territorial sweep, and what were the contents of the USA law. She asked whether it could undermine the international protocols, and how IPOA operated in regard to traditional law. She noted that South Africa had taken the initiative to align itself with international law, but did not believe it should withhold the right to determine what should be applicable to particular individuals. Mr Brooks responded that the USA had many issues with extraterritoriality. IPOA believed that the MEJA law, which held contractors accountable, was written to ensure that they did not violate any treaties. It South Africa were to incorporate similar legislation, a South African could be brought to trial in the USA; but if South Africa decided to prosecute, MEJA would be set aside. Mr J Phungula (ANC) asked for comment on South African servicemen who took long leave and during that time went to work in Iraq, which seemed to be unpatriotic. He stated that the UN would have a stated reason for making an intervention in a particular country, but an individual South African had a very different perspective. The history of South Africa made it difficult to divorce private security companies from military activities, and many who were originally in the SA National Defence Force (SANDF) had crossed over to private institutions. Mr Brooks replied that it was not the role of the private sector to determine what would be an appropriate international intervention. Whatever the personal views of the conflict, these must be divorced from the business, which was to protect the population, prevent further deaths, and provide support that would hopefully bring about the end of conflict. Mr Shah commented that the input the previous day had focused upon the lack of capacity of states in peace and stability efforts. It was clear that the private security companies were needed, and were here to stay. He asked whether there should not be an international body that should establish international norms and provide guidelines to regulate activities. He asked if there were existing protocols. Mr Brooks agreed that states lacked capacity. There were currently no international laws or guidelines. IPOA was presently working with the Swiss government, who were trying to draw up a set of guidelines. The Code of Conduct, being drawn up by IPOA, was able to be drawn up faster and was operational at the moment. IPOA believed that the Code of Conduct provided a very good basis for an international law, on which it was giving input. Should the eventual international law deviate from the Code, the Code would be brought in line. Mr M Booi (ANC) commented that he was concerned that private security companies could leave the country and sell intelligence reports and information to other countries who would put their own interpretation on it. Private security companies were not accountable and therefore became very powerful. He suggested that some companies supposedly involved in peace and security could in fact be fuelling war to de-stabilise and thereby increase their profit. The Bill as drafted was intended to find a way to curb such practices. Mr Brooks answered that the UN was not permitted to have any intelligence sources and therefore the private security companies had undertaken this function. Whenever the UN had tried to raise the issue it had been refused. Companies who made their living from peace and security were unlikely to de-stabilise and there was no evidence that they started wars. The industry was ethical and responsible. Mr P Groenewald (FFP) reported that many of those taking leave from the SANDF and working in Iraq had done so because of the policy of affirmative action, which had forced them to seek alternative and better-paid employment to support their families. There was no question that they were highly skilled, well trained and had the necessary expertise. He asked how many of the South Africans in the IPOA organisation still had obligations to the SANDF. Mr Brooks commented that there were several hundred South Africans involved in peace keeping from all ethnic and educational backgrounds. South Africans generally were good at managing risk, were more rugged, and better equipped at de-mining and logistical support. IPOA believed that those still under obligation to the SANDF should resign, but IPOA also felt that a British initiative, which allowed resignation, but would re-hire, gaining from the increased capabilities and experience gained, was worthy of support. IPOA suggested that the SANDF should investigate implementing a similar programme and had spoken to senior officers on ways of addressing the problem of loss of senior and experienced people to private firms. The Chairperson commented that if SANDF members took leave and then participated in other countries without authority, there was a danger, particularly if some companies carried intelligence capability within their range of activities; that communication was capable of being passed too easily. Mr Brooks replied that South Africa contributed hugely to international efforts and the Bill could be very positive if it could properly isolate the elements that did pose a threat, and censure those who were not operating under ethical principles. The Chairperson also commented that if a person leaving without authority was killed, South Africa might be considered responsible. Mr Brooks answered that a person leaving South Africa took individual responsibility, whatever he was intending to do and that legislation could not take away their freedom of choice. Mr S Ntuli (ANC) commented that the Bill was clearly aimed at reducing mercenary activity in South Africa and overseas. One of the concerns had been that no one clearly knew who had been responsible for funding or arming foreign troops. It would have been irresponsible to allow the current situation to continue that did not prohibit mercenary activities. Mr Brooks replied that South Africa had been involved in operations in the DRC, particularly in disarmament. He commented that if this had not been allowed, then many more civilians would have died. In 2003 IPOA put together a concept paper suggesting ways in which local people could be involved in border guards, in supporting disarmament and in rehabilitation programmes. The UN held a larger mandate, and the whole operation fell under UN command. The Chairperson commented "the devil is in the action" and wondered if any companies were in fact fuelling the situation to maximise their profits. She asked how one could judge intent or whether one should judge actions. Mr Brooks responded again that although it was true that the companies were operating for profit, they were no different from other business operations that had to operate legally and ethically in order to make their business work. Future contracts were of prime importance to them. In reality, most of those serving in security companies had undergone military training, with military ethics, and those ethics did not leave them when they changed employment. When IPOA was started in 2001 its goal was to set and keep the highest standards in peacekeeping. IPOA supported governments with their regulatory concerns. Those South Africans who did support peacekeeping operations should be permitted to continue, whilst the emphasis should be on finding and preventing those who violated human rights. British Association of Private Security Companies (BAPSC) submission The Chairperson stated that although BAPSC had made their presentation, at their own request, the previous day, they had handed out a document that morning, entitled "Comment on the (Bill)" that had raised three points not addressed during the previous presentation. She asked for clarity on those points. Mr K Williams (Webber Wentzel Bowens, attorneys for BAPSC) reported that although BAPSC had been ready to present the previous day, the document now tabled was not ready at the time. This document essentially tried to distil the longer comments into bullet points. The Chairperson was concerned about three items. BAPSC had commented that it appeared, from the Memorandum on the Objects of the Bill, that there had been no input from intergovernmental organisations, NGOs, humanitarian agencies, private security companies and other stakeholders. Secondly, BAPSC had commented that the NCACC, as a body of senior politicians, lacked the expertise to make the complex legal judgments that the Bill required. Mr Williams wished to clarify that although all the matters set out in Clause 9 of the Bill were within the scope of the NCACC capabilities, they nonetheless raised very technical issues such as the country’s obligations under international law, which it was felt would need to be addressed by international lawyers as they required specialist skills. Thirdly, BAPSC had suggested that the Bill should be withdrawn from further discussion. This was perhaps not as well worded as it could have been: BAPSC asked rather that specific consideration be given to certain areas of the Bill and that the framework of the Bill should be examined. Although this could be done by the Committee it was likely that a substantial re-draft would be required. Alternatively, the matter could be reconsidered from scratch, taking into account all comments from humanitarian agencies, representative bodies, and looking at regulation of the structure. The Chairperson replied that this was precisely the reason why the public hearings had been called, and all interested persons and organisations had indeed been given the opportunity for input. The Department preparing the Bill would not automatically call upon all other stakeholders. The Committee would certainly take cognisance of all input during the hearings and make whatever changes it deemed necessary. NGOs and other stakeholders had certainly been given the opportunity to be heard. Mr Monareng added that the State Law Advisors were present and were noting the concerns. Mr Williams responded that the document contained only a very brief summary; that it was perhaps difficult to crystallise all the issues in a short sentence but that the full text of the proposals and concerns was contained in the longer document submitted previously to the Committee. BAPSC had certainly intended no disrespect in respect of the issues raised. International Committee of the Red Cross (ICRC) submission Mr J Williamson (Regional Legal Advisor, ICRC) reported that the ICRC had a mandate entrusted by government, through the Geneva Convention and other statutes which South Africa had adopted, to assist in all matters involving international humanitarian law (IHL). ICRC foresaw problems with some of the definitions in Clause 1 of the Bill. An attempt had been made to define "armed conflict" but this would need revision and reconsideration. The definition focused upon the parties and not only the constituent elements of armed conflict. There had been a useful judgment on jurisdiction, (concerning the Tribunals in the former Yugoslavia) which had proposed a definition that could be of guidance to the Committee. The additional protocols and the Geneva Convention itself (which South Africa had ratified) also gave some guidance as to "armed conflict", in particular when it could be said to start and end. ICRC would be happy to assist in sourcing these documents if needed. The proclaiming of an area as contemplated in Clause 1(1)(b) was also problematic. IHR would only apply when armed conflict had already occurred. ICRC suggested that the Committee should reconsider the difficulties in proclaiming countries or areas, or reconsider the wording that would best fit the situation. Many of the services that the Bill sought to regulate would not take place in areas where the conflict was actually occurring – such as IT communications. Clause 1 also put a very broad definition on "assistance or service" and this definition as worded would cover many of the services rendered by ICRC and similar organisations, such as paramedical assistance, advice and training. Many governments request ICRC to carry out extensive training, including training of their armed forces on the provisions and principles of IHL. ICRC would suggest that the first line of subparagraph (b) be removed, so that it was clear that the activities listed under subparagraphs (i) to (v) related to "military" activities. Certain exclusions were listed under Clause 1(2) and ICRC was concerned that the wording of subparagraph (iv), dealing with resistance against occupation, was so wide that virtually any activity could fall within its ambit. This would no doubt be contrary to the intention of the Bill. Clause 2 dealt with prohibition of mercenary activity. The Organisation of African Unity (OAU) Convention for the Elimination of Mercenaries in Africa, 1977 had dealt with the question of direct or indirect participation in mercenary activity and could provide some guidance to reach a better definition than the one presently proposed. In respect of Clause 9 (Criteria for authorisation or exemption) subparagraph (b) currently made reference to "…result in the infringement of human rights and fundamental freedoms". ICRC suggested that a reference to International humanitarian law be specifically included as it was the main body of law applicable in times of armed conflict. A fuller explanation of this was contained in the written submissions. ICRC understood that the intention of the Bill was clearly to reduce and regulate mercenary activity and other unlawful activity that could compromise the stability, peace and integrity of post-conflict rehabilitation. ICRC was particularly careful in protect IHL to ensure that the Conventions were upheld and that all parties to the conflict should respect the norms relating to armed conflict. The involvement of non-State parties was very important. The wording of the Bill and paragraph 3 of the preamble suggested that humanitarian assistance formed part of military activities. In fact it was completely different. The services provided were impartial and neutral, independent and not carried out by peacekeeping forces. 192 States and the UN High Commissioner for Refugees (UNHCR) had particular mandates and to equate human assistance with military services would jeopardise all the work of the ICRC and other humanitarian organisations. Clause 5 was termed very broadly, stating that no person could provide humanitarian assistance without authorisation in terms of Clause 7. This did not limit the applications to South African citizens working for South African organisations. ICRC’s current involvement in briefing the SANDF on peacekeeping would therefore require prior permission from the Committee. It could apply for an exemption, but there was no indication whether this must be a blanket exemption, or sought case-by-case. ICRC was recognised, internationally, as the organisation to carry out IHL interventions and to ensure respect, and therefore, from a legal viewpoint, may well not need permission in advance. There was no indication whether exemptions must be requested, or would be granted, to other humanitarian organisations. Many interventions needed to reach those requiring assistance within 48 hours to be effective and it might simply not be practicable to required prior exemptions before assistance could be given. ICRC had no particular solution to this issue, but was most concerned that it must be looked at more carefully. ICRC understood that some Members of the Committee were concerned about organisations that claimed to be humanitarian, but were merely hiding behind the label to engage in other activities. ICRC agreed that it would be necessary to regulate them, while bearing in mind the primary aim of reaching those in need. A possibility might be to formulate a list of organisations, and a test for others, who would be excused from requiring an exemption because of their known status as international humanitarian organisations. Members had raised questions about Clause 11 of the Bill, dealing with extra-territorial jurisdiction. ICRC did not hold a particular view and the debate on sovereignty was a long and complex one. However, as presently worded, Clause 11 affected ICRC and similar organisations. For instance, if a Swiss delegate visited South Africa, having previously engaged in work in Sudan, he could be arrested for not having sought prior exemption to carry out activities in Sudan. Likewise ICRC officials could be arrested elsewhere for training SANDF members on peacekeeping. Whilst the intention was known, the wording of the Bill gave rise to various anomalies. ICRC remained available to assist with input and advice. Discussion Adv Schmidt raised the question of extraterritorial jurisdiction and asked whether the provision as it stood was unenforceable. Mr Williamson replied that although he was not an expert on the laws of extradition, he understood that it was possible to extradite even if certain activity was not criminal in own jurisdiction. Some matters would depend on extradition arrangements, but clearly also some governments would, from a practical standpoint, refuse to extradite. Dr Koornhof asked whether ICRC had a particular recommendation on Clause 5, and whether a deletion of all references to humanitarian assistance would solve the problem, since then those involved in military or security operations could be prosecuted under the head of unauthorised military activity. Mr Williamson thought that this would solve one of the problems because the security services and military operations and humanitarian assistance had all been lumped together. It would be useful to redraft the Bill to identify exactly what was meant by humanitarian assistance. There was no definition in the Bill as it stood. This might have been a lapse, or it might have been deliberate to exclude individuals allegedly operating under IHL. A complete redraft would be more useful than a mere deletion. Dr Koornhof asked whether Clauses 11 and 13 would require organisations or individuals to make exemptions. Mr Williamson responded that ICRC had no difficulty with the process, but the definition of the exclusions was too broad. This applied also to Clause 2(a)(iv). Situations could arise which were excluded from the ambit of the Bill, through one of the sections, and where there was no necessity to wait for a proclamation by the President. This was surely not the intention of the drafter. It was suggested that either the President be given broader powers in making the determination, or that the exclusions be reworded, since humanitarian organisations had perforce to act urgently. Mr Shah asked if ICRC suggested that internationally recognised bodies registered with the UN should not be exempted, and whether other organisations that were not registered would need some structure that allowed for them to become registered. Mr Williamson replied that exemption would hopefully apply to ICRC as a body, and would cover all delegates, who would not then need to make individual applications. Dr Koornhof asked whether ICRC had any experience of acts as contemplated in Clause 1(2). Mr Williamson stated that even Article 1 of the Geneva Convention did not give a workable definition of mercenary activities – and it had to be read in the context of when it was drafted. The core elements seemed to be that acts should be for private gain, usually involving non-nationals. The Bill as drafted clearly reflected the concerns that the world had moved away from the traditional armed conflict to a far more complex situation. There was also a proliferation of non-state actors in zones of conflict. The Geneva Convention sought to clarify who could take place in conflict, who was regarded as a prisoner of war, and who was an unlawful combatant. However private security companies had often been called in but not considered in the regulations. The Swiss government had spearheaded an initiative to try to find international norms and principles for private security agencies. South Africa was seen at the forefront of trying to create international regulations and codes to govern non-state actors. Although Mr Williamson could not give an exact answer, it was certainly a live issue, and was an interlinked process aimed at creating clear guidelines, ensuring that no one could compromise humanitarian assistance and destabilise the peace process. Mr Monareng asked how one could distinguish, other than by uniforms, between those involved in military and humanitarian operations. He again raised the issue that some unscrupulous operators could actively connive to encourage non-stability. Mr Williamson replied that the guiding principles for humanitarian organisations were that they should act independently, with neutral independent humanitarian action (NIHA), and be guided by principles of international humanitarian law, which would govern the determination of appropriate actions. Mr Booi asked whether ICRC had any experience with private security companies, and whether they could be classed as providing in the IHL field, or whether they could "slip through". Mr Williamson pointed out that most would be governed by contracts and time limits, but if called upon to act rapidly they could well fall within the wide definition of Clause 2. He could not comment whether private security companies were good or bad but they were certainly involved. The Bill brought the issue to the fore and it was clear that specific guidelines were needed. ICRC had possibly used security companies in Sierra Leone, but they were not provided primarily for ICRC. Security provisions for convoys and the like had been made in Mogadishu and Somalia. Other than that, Mr Williamson could not give any specific examples of companies used. The Chairperson asked how ICRC would regard individuals who, while relying on an organisational exemption, engaged in military activities. Mr Williamson stated that all officials were bound both to the Geneva Convention and the ICRC strict Code of Conduct. If any individual were to be discovered carrying out mercenary activities under the emblem of the Red Cross, he would be removed and would be subject to other sanctions by the national authorities. To his knowledge, this had not ever occurred with ICRC staff or delegates. As a general comment, Mr Williamson added that the Bill needed to be redrafted to put the focus on, and to reflect more accurately upon issues that the Committee wished to regulate. Some suggestions had been made the previous day that the Bill should focus on the conduct of individuals. It was very difficult to provide an exhaustive list and ICRC suggested that an alternative would be to restructure the Bill to make a clear distinction between lawful and non-lawful activities. If the conduct were considered unlawful it would clearly make no difference whether it had been conducted under the guise of humanitarian intervention as it would not stand up to scrutiny. Although the Bill had some lacunas, ICRC regarded it as a step in the right direction. SaferAfrica submission Mr R De-Caris, (Senior Programme Officer, SaferAfrica) reported that SaferAfrica was an NGO, registered as a Section 21 company. It was involved in the broad peace and security process and rendered services to governments, NGOs and other stakeholders, in implementing agreed policy and legislation. Its support was both technical and financial – for instance it provided both the technical assistance and finance in collaborating with the UN Development Programme (UNDP) to the Ugandan government to assist with managing the stockpile of small arms and light weapons, in planning what was to be destroyed, how to ensure that weapons did not move to the illegal stockpile, and in training the police. SaferAfrica was also involved in developing policy and legislation such as how to deal with the UN requirements on small arms and light weapons. It trained the police in the implementation of agreements ratified by countries. All activities of SaferAfrica were geared to sustaining peace and they would be severely compromised if the Bill were to be enacted as presently worded. SaferAfrica was involved in places of conflict, to varying degrees, and were usually involved either at the start or end of the conflict. The definition in the Bill of "assistance or service" included training, which SaferAfrica undertook, and the provision of financial support, which they undertook directly or indirectly through sourcing support – such as a bilateral operation between SAPS and Mozambican police, which had been involved, for the past three years, in collecting and destroying arms caches. The Bill would result in many unintended consequences. Although it was easy to pinpoint the areas needing correction, it was far more difficult to propose a solution. However, as a general point Mr De-Caris believed that the definition of service needed to be looked at far more carefully to avoid unintended difficulties. Discussion Mr Shah asked if SaferAfrica provided legal advice on small arms, and whether such service would be provided to government departments, in which case it was most anomalous that the provider of services to the government would fall foul of the Bill. Mr De-Caris confirmed that in a broad sense, SaferAfrica was involved in advising the Department of Safety and Security. Mr Booi asked what SaferAfrica would propose in terms of the wording. Mr De-Caris stated that this was not easy to specify. He was aware that some had suggested defining the conduct. However, one might also need to look at the rationale behind conduct. Even this could affect certain organisations who might not have intended the consequences that resulted from their actions. He suggested that the whole Bill needed to be re-examined as it was difficult to re-draft only part of it. The Chairperson pointed out that this again highlighted the point that it was actions that needed to be controlled. Dr Koornhof and Mr Monareng asked how one could measure the effect of actions. Mr De-Caris agreed that this was very difficult, and must be based on personal interpretation. An organisation might think it was bringing peace and stability by controlling legitimate stocks of weapons but an opposing side might see this as an opportunity to increase the scale and severity of conflict. Mr Booi requested how the Bill could be drafted in such a way that it did not adversely affect organisations such as SaferAfrica. Mr De-Caris replied that legislation was always drafted with the best intentions but would invariably result in some unintended consequences. It was very difficult to legislate for the exceptions and therefore legislation was of necessity broader rather than narrow. The intention behind the Bill was clear and was admirable. However, in its present form it would present problems to a very wide sector. The issue was not to meet every single eventuality but to try to limit the unintended consequences. The Chairperson asked whether any members of SaferAfrica had been found to contravene the aims of peacekeeping, whether the credentials of people working for security companies were known, and their potential risk assessed. Mr De-Caris replied that SaferAfrica was a small organisation of only 35 people and it was very difficult for any person to act on his own initiative. Only six or seven operators were on the ground, and before any person could proceed others must be apprised of intention and procedures. He was satisfied that the risks were minimal. Mr Shah commented that SaferAfrica had been operating in the Great Lakes Region of Uganda. If there were to be a definition of "mercenary" this might affect SaferAfrica as some of the armies in that region had not behaved correctly. Mr De-Caris confirmed that this was indeed a problem because the definition was influenced by political considerations. Political interpretation would always be present. However, a greater problem was that as the Bill was worded, his company might be working in an area, and not easily be able to stop operations, when it heard that the area had been declared a conflict area, requiring permission and presumably requiring a halt to operations. There was not a problem if SaferAfrica knew in advance of entering an area that it was an area of armed conflict. For instance, activities in Uganda would be affected under the Bill, and even if this were an incorrect interpretation permission would be required. Dr Koornhof and Mr Booi asked what SaferAfrica would consider as a reasonable amnesty period. Mr De-Caris replied that the currently worded six-month provision only covered half of the problem. This transitional period would not cover the situation where SaferAfrica was already working in an area, which was subsequently declared an armed conflict area. Some provision should be made for that situation. Mr De-Caris suggested that one option might be to allow for continuance of operations for a short period, or to allow continuance pending the application. All would depend on how quickly the applications could be processed. Six months in respect of new situations was quite adequate. The meeting adjourned.


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