Prohibition of Mercenary Activities Bill [B42-2005]: Department Response to submissions

DEFENCE PORTFOLIO COMMITTEE
6 June 2006
PROHIBITION OF MERCENARY ACTIVITIES BILL: DEPARTMENT RESPONSE TO SUBMISSIONS

Chairperson: Mr O Monareng (ANC)

Documents handed out:
South African Police Service response to submissions on Mercenary Bill

SUMMARY
The SA Police Services and Department of Defence responded to issues raised at the hearings. The National Intelligence Agency failed to attend. The role of and differences between primate military companies and private security companies featured prominently in the ensuing discussion. In addition, the lack of capacity at the National Conventional Arms Control Committee and the issue of extra-territoriality were also discussed.

MINUTES
Presentation by the SA Police Services (SAPS)
Assistant Commissioner Jacobs stated that South Africa was not a party to the African Union (AU) and United Nations (UN) Conventions against mercenary activities. This was because these resolutions were limited in scope. He stated that in international law, liberation struggles fell within the context of "international conflict" and therefore Protocol 1 of the Geneva Conventions was applicable to such struggles. The exclusion in the counter-terrorism context was different. This exclusion in terrorism legislation did not relate to "convention offences" which covered almost all forms of terrorism and thus applied to the general offence of terrorism.

He highlighted that some of the issues were policy issues and their comments would be limited to the legal dimension. They had categorised issues and he hoped that they would assist the Committee. He spoke about the types of armed conflict, the definition of mercenary activity, parties to armed conflict and NGOs involved in an advisory capacity.

The areas of concern were that the Bill should not impact negatively on preventative diplomacy, peacekeeping operations, peace enforcement, humanitarian activities, peace support operations and post-conflict activity and peace building. The presentation also highlighted private military/security company options and extraterritorial jurisdiction over non-nationals and offences.

Discussion
Mr M Sayedali-Shah (ANC) asked if it was not a concern that all organisations providing international humanitarian assistance would not be recognised? If there was an application for exemption then who would decide on this? He asked why South Africa was not a party to the UN Conventions? What was the distinction between private military companies (PMCs) and private security companies (PSCs)?

Ms A Van Wyk (ANC) asked Mr Jacobs to expand on his view of the situation. How did they intend to police the Act and how effective would they be?

Dr G Koornhof (ANC) asked how many prosecutions had been achieved in the past two years under the New Zealand Act. How sure were they that this Bill would be effectively implemented?  Could Mr Jacobs give an example of a PSC?

The Chairperson asked how it was that PMCs existed at all.

Mr Jacobs responded that they had realised that there were not many international humanitarian assistance companies that were recognised. There should be two tiers. There should also be discretion in exempting others. Furthermore the Bill should say that we did not allow any foreign enlistment whatsoever, or the exemption would lapse once a person was employed.

Mr Jacobs added that there had been a problem with the title of the Terrorism Act as well as this Bill; however the content of the Bill was much more important.  The name could however be shortened. With regard to the distinction between PMCs and PSCs, a large number of categories existed. There was also a problem because most of PSCs when entering places like Iraq, were issued with AK47s and other automatic weapons. It was then difficult to distinguish. The type of activity would then determine the category. He did not know how many prosecutions had taken place in terms of the New Zealand Act.

On policing, Mr Jacobs said the Act would be clear and it would be easy to investigate the activities of the different companies. However, if a government were involved and had employed mercenaries, it would be hard to investigate in that country.

Adv H Schmidt (DA) asked if the police was against PSCs doing private security work in the strictest sense.

Mr V Ndlovu (IFP) asked if SA were not a signatory to the UN Conventions, how could we then declare areas of armed conflict?

Mr J Schippers (ANC) asked what was the approach of New Zealand. What would the composition of the Committee that would implement this Act be?

Adv Z Madasa (ANC) asked what the justification for enlistment in other armies was. If there were co-operation, then why the need for enlistment?

Mr J Groenewald (FF+) asked if existing legislation was inefficient. Had there been any cases where the SAPS felt they wanted to make it applicable? Was it necessary to come up with a new Bill?

Mr Jacobs responded that there were legal reasons why South Africa was not part of the conventions. He was not completely sure what it was but it had to do with scope of application. South Africa had not wanted to be limited by the narrow scope of these conventions. PMCs were often employed by governments and PSCs by private persons or firms.

Mr Jacobs said it had been felt that it was not appropriate for civil society organisations to serve on the National Conventional Arms Control Committee (NCACC). It consisted of Cabinet Minister and had a scrutinising committee.

Department of Defence briefing

Mr Njikela, Deputy Director: Legal Support, stated that South Africa was not trying to do anything new to that which had already been done elsewhere. The issue of transitional arrangements was touched on. Currently, Commonwealth countries allowed their citizens to serve in each other’s armed forces. This was a political or policy issue but he would deal with the legal position. Mercenary activity had been declared unlawful by the UN. The problem appeared when “assistance” was brought into the equation. How do you criminalise something which might not be an offence in another country? This had been a really tough question to answer.

Conceptually there might be a distinction between PMCs and PSCs, but it was often difficult to distinguish between them in an area of armed conflict. An example would be Iraq, where coalition forces were clearly distinguishable but other parties to the conflict not. Four types of legislation that purported to deal with this situation had been identified. Other laws had not been forcefully enforced. The NCACC would be empowered in the Act to have subcommittees rendering assistance. The scrutiny committee also assisted with doing research.

Discussion
Mr Groenewald stated that it had been said that people should trust the NCACC. In the late 1990s the NCACC had decided that no arms were to be sold to Pakistan. At the moment, there was talk of Pakistani assistance to Denel. How could we now trust the NCACC?

Mr Sayedali-Shah agreed that the role of the NCACC was being questioned but not because the Ministers were not honourable. Was it possible to make legislation for grey areas?

Mr L Diale (ANC) asked how many South African PSCs were involved in Iraq? To control mercenaries, they had to be regulated. How can they be regulates if the number of South African companies operating in other countries was unknown? Private companies had to be registered and the capacity to monitor them had to exist.

Dr Koornhof stated that on 17 May, five concerns had been highlighted at the Committee meeting. When would they be addressed? The Committee needed to investigate whether it had failed to call the NCACC to account. Was the Department agreeing with the SAPS that there was room for improvement?

Mr Ndlovu asked for clarification of enlistment. The exclusion of "legitimate" liberation struggles interested him and he wanted to know who was not legitimate when it came to liberation struggles.

Mr Njikela responded that the NCACC should respond to the questions relating to them. It was inappropriate for him to comment on their activities. The reality was that after 1994, SA had people who were militarily trained but who were outside formal structures and survived selling their skills. It would be unwise for South Africa to be seen to be undermining humanitarian assistance internationally. He did not have the exact figures of South African citizens working in Iraq but they were said to be about 5 000. Some might be involved in legitimate work but the government still wanted to know what they were doing.

Mr Njikela argued that not all gaps and flaws could possibly be covered by the legislation, but the Department would provide whatever assistance it could. Extra-territoriality was problematic from a legal point of view. Traditionally one could claim jurisdiction with regard to residence and citizenship. The provision on liberation struggles was also problematic. It should be excluded entirely from the Bill.

The Chairperson stated that the country had a problem because it could not account for the activities of its citizens engaged in other countries.

Ms Carrin Boyes (State Law Advisor) stated that according to Section 33 of the Constitution, everyone had the right to just administrative action that was lawful, reasonable and procedurally fair. The Act could lead to a perception of subjectivity and even if people had the option of appeal, who would they appeal to? Rights were however not absolute and could be limited under Section 36, the limitations section.

Mr Sayedali-Shah asked if all inputs could be put in writing to assist the Committee’s deliberations.
 
Mr Ntuli asked if the Act would provide for the time when a company employed a person or the company was founded. What if the company disowned the person? To what extent could the company be exonerated?

Dr Koornhof stated that he now had a clearer picture after the presentation and discussions. The Committee would be able to move forward and decide on amendments.

Ms Boyes stated that she would come up with alternative suggestions for the Committee. The question of Mr Ntuli was provided for in the Criminal Procedure act and some of these concerns were still being discussed with the Department of Defence.

The Chairperson said the National Intelligence Agency and Department of Foreign Affairs would be requested to make representations to the Committee.

The meeting adjourned.