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South Africa's new counter-mercenary law.

ABSTRACT

An overview is provided of the new counter-mercenary legislation recently adopted in South Africa, comparing existing legislation and the new Act. Suggestions are made, with reference to international humanitarian law, in respect of the interpretation of terminology and definitions used within the context of the new Act, such as the definitions of 'armed conflict'; 'combatant' and 'taking direct part in hostilities'. International instruments dealing with mercenary activities are referred to.

1. INTRODUCTION

The Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, 2006 (Act No. 27 of 2006) (hereinafter 'the new Act'), was published on 16 November 2007 for general information, following the assent thereto by the President. (1) The new Act, in terms of section 14, however, needs to be put into operation by the President on a date determined in the Government Gazette. This can only be done once the regulations required to implement the new Act have been drafted. This process requires public consultations and it can be expected that some time will elapse before the new Act could be enforced. The matters which need to be prescribed in terms of the new Act are the form and manner of applications and fees. The absence of such regulations would not derogate from the discussion of the new Act.

2. BACKGROUND

The consideration of the Bill (culminating in the new Act) by Parliament was characterised by huge international interest and extensive public hearings. Submissions were made by various foreign private security companies involved in Iraq, non-governmental organisations and humanitarian and religious organisations. Submissions to the Portfolio Committee of Defence on the Bill introduced in Parliament focused on issues such as the affect of the Bill on the constitutional right to the freedom of trade, occupation and profession; retrospectivity; an exemption in the Bill in respect of freedom struggles (not included expressly in the new Act); the fact that the Bill addressed the regulation of humanitarian aid; enlistment in foreign armed forces; and private security services. (2)

The new Act, once in operation, will repeal the Regulation of Foreign Military Assistance Act, 1998 (Act No 15 of 1998) (hereinafter the 'present Act'). The deficiencies of the present Act are clear from the Memorandum on the Objects of the Bill introduced in Parliament, namely the fact that few successful prosecutions, except a number of plea and sentence agreements emanated from the enforcement of the present Act. (3)

This is not surprising, in view thereof that mercenary and foreign military assistance not only takes place outside the normal jurisdiction of the courts, but in countries ravaged by conflict or war; the authorities in the country in conflict might themselves be employing the mercenaries and would not provide any assistance in the investigation of mercenary activities; and the deployment of agents and informers is difficult as they would find themselves amongst highly trained military and intelligence personnel sensitive to infiltration, and with cohesion as comrades in arms. It is therefore difficult to prove the exact activities of the persons involved, especially of persons ostensibly deployed as security guards, but taking direct part in hostilities.

The first prosecution under the present Act was that of Richard Rouget, who, during August 2003, pleaded guilty on a charge of recruiting mercenaries for the conflict in the Ivory Coast. He was sentenced to a fine of R100 000 or five years imprisonment as well as a further five years suspended for five years. (4) This sentenced was reduced on appeal to R75 000. (5)

South Africans continued to be recruited by private military companies from outside the Republic to provide military and security services in areas of armed conflict, such as Iraq. (6) Furthermore, the arrest of a number of South Africans, allegedly involved in a planned coup d'etat aimed at overthrowing the government of Equatorial Guinea 'demonstrated' that mercenary activities are undertaken from within the borders of the Republic.

Further plea bargains under the present Act emanated from this attempted coup: C Steyl and Another pleaded guilty on a charge under the present Act, for participating in a conspiracy to execute the coup, and sentenced to a fine of R200 000 or 10 years imprisonment and a further five years suspended for five years. (7) A more controversial plea bargain was that of Mark Thatcher, for his share in the same coup attempt, by financing some of the conspired activities. He was sentenced to a fine of R3 million or in the event of non-payment to a term of five years imprisonment, as well as four years imprisonment suspended for five years. (8) One of the rare cases prosecuted without a plea bargain under the present Act resulted in the acquittal of all the accused. (9)

The present Act was aimed primarily against the activities of Executive Outcomes, described as "an adaptive military entity that mutates and reincarnates itself when the political environment changes and when it encounters challenging or hostile influences. Underpinning this mutation is an aggressive and competitive marketing strategy to survive both as private army and as a corporation". (10) Despite the few prosecutions, the present Act could be regarded as successful to the extent that it forced Executive Outcomes to move its activities to outside the borders of South Africa. (11) This, however, did not stop the recruitment of mercenaries from South Africa, and their active involvement in various theatres of armed conflict in Africa, such as Sierra Leone and Angola. (12)

The participation of South Africans in mercenary and private security activities in armed conflicts seems to be continuing. Semiofficial estimates give the figures of 7 000 to 10 000 expatriates such as Australians, British, Canadians and South Africans active in security services in Iraq, and 4 000 to 6 000 expatriates from the United States (US), the United Kingdom (UK), Australia, New Zealand and South Africa performing security services in Afghanistan. (13) At least 23 South Africans have reportedly been killed in Iraq since January 2004. Most of the victims were killed by roadside bombs, suicide bombs and attacks on convoys. It is speculated that there are between 2 000 and 4 000 South Africans in Iraq, but as a result of 'nonregistration', it is impossible to know the exact figure. (14)

3. INTERNATIONAL OBLIGATIONS

There is only one global instrument dedicated to addressing mercenary and mercenary-related activities, and one regional convention within the African region, placing obligations on states' parties to act against mercenary activities.

3.1 International Convention against the Recruitment, Use, Financing, and Training of Mercenaries

The International Convention against the Recruitment, Use, Financing and Training of Mercenaries was adopted on 4 December 1989, (15) but had been ratified or acceded to by only 30 countries. (16) The Convention contains a definition of 'mercenary'. It further provides that states' parties shall take steps to legislate against mercenary activities, including recruitment and financing of mercenary activities, cooperation to combat mercenary activities, arrest of suspected mercenaries and extradition where applicable. The Convention has numerous gaps and ambiguities and is silent on the issue of private military companies. Despite the fact that the United Nations (UN) is continuing to foster the ratification of, or accession to the Convention, the UN is seeking support for a process towards an additional protocol to the Convention to address newer forms of mercenarism such as the activities of private military and security companies. (17)

3.2 Organization of African Union (OAU), now African Union (AU), Convention for the Elimination of Mercenarism in Africa

The Convention for the Elimination of Mercenarism in Africa was adopted at Libreville on 3 July 1977. (18) It came into force on 22 April 1985, following a slow rate of ratification of, or accession to, the Convention. To date only 24 member states of the African Union (AU) have ratified the Convention. (19) The contents of the Convention are very similar to that of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. Without unpacking the contents of the AU Convention, it should be mentioned that, following the Equatorial Guinea coup attempt, the AU's Peace and Security Council mandated and requested that "the necessary steps (be taken) to find a global solution to the phenomenon of mercenary activities on the Continent through the harmonization of existing legislation and measures within the context of a review of the OAU Convention on the Elimination of Mercenarism in Africa". (20)

3.3 South Africa's position

South Africa is neither a party to the International Convention against the Recruitment, Use, Financing, and Training of Mercenaries, nor to the OAU Convention for the Elimination of Mercenarism in Africa. The Convention for the Elimination of Mercenarism in Africa still allows governments to continue to hire non-nationals. (21) Existing lacunae in both these instruments are being exploited by unscrupulous private actors. (22) Both South Africa's present and new counter-mercenary laws exceed the obligations in the mentioned instruments. Clearly the fact that South Africa is not a party to these instruments is based, not on a lack of commitment to comply with international obligations to combat mercenary activities, but rather a statement against the limitations and shortcomings of these instruments, which need to be reviewed and supplemented or amended to provide for the new forms of mercenary activities.

3.4 Rome Statute of the International Criminal Court

The Rome Statute is an instrument which establishes the International Criminal Court (ICC), (23) having jurisdiction to adjudicate cases relating to war crimes, genocide and crimes against humanity. Few employees of private military and private security companies are regular combatants. As a result, they lose protection under the International Humanitarian Law (IHL) when taking direct part in hostilities. (24)

Should mercenaries or employees of private military and private security companies commit crimes falling within the jurisdiction of the ICC, they could be prosecuted for those crimes in the ICC. Although mercenary activity is not mentioned specifically as falling within the jurisdiction of the ICC, mercenary status may prove to be an aggravating factor when an offender is sentenced. (25)

South Africa is a party to the Rome Statute, and has implemented the Statute by the adoption of the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act No 27 of 2002). The Act provides for:

--the crime of genocide, crimes against humanity and war crimes;

--the prosecution in South African courts of persons accused of having committed the said crimes in South Africa and beyond the borders of South Africa in certain circumstances;

--the arrest of persons accused of having committed the said crimes and their surrender to the said Court in certain circumstances;

--co-operation by South Africa with the International Criminal Court.

3.5 International counter-terrorism instruments

If the elements of mercenary activities and that of terrorism are unpacked, it is obvious that the basic difference between terrorist acts and mercenary acts lie in the motive. Whereas the terrorist's motive usually is of a political, economic or religious nature, the mercenary is motivated by private gain. Actions such as a coup can be politically or financially motivated, but the mercenary executing it does it for private gain. Most international counter-terrorism instruments (26) do not require motives such as a political motive. The International Convention for the Suppression of Terrorist Bombing, 1997, for example, creates a universal jurisdiction over the unlawful and intentional use of explosives and other lethal devices in, into, or against public places with intent to kill or cause serious bodily injury, or with intent to cause extensive destruction of the public place, irrespective of the motive. In South African law, the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No 33 of 2004) enacted all the offences required by the respective counter-terrorism instruments. It is quite possible, in respect of mercenary activities committed in or from South Africa, that such activities could fall within the ambit of both the new Act and some of the convention offences under Act 33 of 2004.

4. THE NEW ACT

As is clear from the title of the Act, The Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, 2006 (Act No 27 of 2006), it prohibits mercenary activities and regulates certain other activities, such as security services rendered in a country where there is armed conflict or a regulated country.

4.1 Definition of 'armed conflict'

The scope and application of the new Act is determined by the interpretation of the definition of 'armed conflict' in the new Act. This also relates to the constitutional basis of the Act, namely section 198(b) of the Constitution of the Republic of South Africa, 1996, which provides that the resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in terms of the Constitution or national legislation.

Concern has recently been expressed on the wide definition of armed conflict in the new Act. Maj Gen Len le Roux (Ret) of the Institute for Security Studies refers to the part of the definition which provides that countries where conflict between armed groups exist will be regarded as countries in conflict, regardless of whether proclaimed as such, as long as there is international recognition that there is such conflict. Le Roux raises the question whether Kenya, for example, would qualify as a country in conflict, in view of recent violence in the country. He compares recognised conflicts such as Iraq, Afghanistan and Somalia with countries which are in various stages of peace processes, such as Darfur in the Sudan and the Democratic Republic of the Congo, Uganda and Chad and asks which countries are regarded as countries in conflict. (27) These comments indeed require that the definition in the new Act should be unpacked. The definition reads as follows:

'Armed conflict' includes any

(a) situation in a regulated country proclaimed as such in terms of section 6; and

(b) armed conflict in any country which has not been so proclaimed, between

(i) the armed forces of such country and dissident or rebel armed forces or other armed groups;

(ii) the armed forces of any states;

(iii) armed groups;

(iv) armed forces of any occupying power and dissident or rebel armed forces or any other armed group; or

(v) any combination of the entities referred to in subparagraphs i) to (v).

This construction of the definition means that the definition is not exhaustive, and that in addition to the ordinary meaning of 'armed conflict' it also includes a situation proclaimed by the President as an armed conflict in a regulated country, in terms of section 6 of the new Act, as well as armed conflict between entities mentioned in paragraphs (i) to (v) above. As to the 'ordinary meaning' of 'armed conflict', it is clear that there is no authorative definition of armed conflict in international law. (28) The term is used in the Geneva Conventions, 1949, which refer to international and non-international conflicts without defining the term 'armed conflict'. The Additional Protocols provide some guidance on what is regarded or not regarded as armed conflict to which the Protocols apply.

The following are generally regarded as 'conflicts': general war, of which the Second World War was the last example; limited conflict, which is international conflict short of general war, such as the Korean War; regional conflict; civil war; insurgency (which can sometimes not really be distinguished from civil war), and terrorism. Insurgency and terrorism would not necessarily be regarded as 'armed conflict' within the context of the IHL, depending on the circumstances, intensity, duration and parties. (29)

It is characteristic of modern conflict that "the boundaries between peace and war, armed conflict, conflict, terrorism and crime are increasingly blurred ... crises are frequent and often lead to armed conflict, yet formal declarations of war are rare". (30) Present complicating issues are the fact that wars are seldom declared; the term 'war against terror' in terms of which 'war' is waged against non-state actors, such as terrorist groups; the Rome Statute of the International Criminal Court which provides for the prosecution of 'crimes against humanity' without the need for an 'armed conflict'; and the reluctance of states to admit that an armed conflict exists in their territory.

The opinion that "actions taken by the United States against al Qaeda and connected groups, outside of the international armed conflicts in Afghanistan and Iraq, cannot currently be classified as armed conflict", (31) is supported.

Private military and security companies fill the vacuum mainly left in three types of unstable situations: "in zones of low-intensity armed conflict (the new asymmetrical wars), where the armies are not fully deployed or in post-conflict situations with a high level of insecurity; ... in armed conflicts when international organizations do not intervene; and in troubled areas in developing countries where there is no presence of the State and extractive transnational corporations operate". (32)

Additional Protocol II extends the protection of the 1949 Conventions to victims of 'internal wars', defined as all armed conflicts which are not international and which takes place in the territory of a high contracting party between its armed forces and dissident armed forces or other organised armed groups, which under responsible command exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations. Article 1 (2) of Protocol II provides that: "This Protocol shall not apply to situations of internal disturbances or tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts". Protocol I relates to armed struggle against foreign domination or alien occupation.

The proclamation of regulated countries will bring about legal certainty to a large extent. The view is held that the definition will ensure that in the proclamation of regulated countries, the exercise of the discretion of the National Executive would have to remain within the framework of the IHL and what is legally regarded as armed conflict in the IHL. In other words, the National Executive cannot unilaterally declare a situation to be an armed conflict if the de facto situation does not relate to any of the circumstances described above which amount to armed conflict in the IHL.

The new Act provides for proclamation of a regulated country, also when armed conflict is 'imminent'. In terms of the Rome Statute of the International Criminal Court, no conflict is required before it can exercise its jurisdiction in respect of crimes against humanity, defined as any attack upon a civilian population under the following circumstances: a course of conduct involving the multiple commission of acts--murder, enslavement, deportation, torture, rape, apartheid, disappearances, or other inhumane acts against a civilian population, pursuant to or in furtherance of a state or organisational policy to commit such attack. It is quite conceivable that the systemic and systematic commission of crimes against humanity, and especially genocide, could lead to proclaiming a country as a regulated country. Such a proclamation should be exceptional.

From a law enforcement perspective, the definition in the new Act is welcomed, as the proclamation of a regulated country will bring legal certainty, especially in border-line cases, whilst in clear situations of armed conflict, an accused would not be able to raise the defence that the situation had not been proclaimed an armed conflict.

Situations which clearly qualify as armed conflict, are wars/ armed conflict between states, civil wars, and wars of national liberation. A guiding principle would be resolutions of the UN Security Council on situations threatening or affecting international peace. The threshold to regard a situation as armed conflict within the IHL is, rightly so, quite narrow, in view thereof that IHL derogates from International Human Rights. The way in which the definition of 'armed conflict' is structured, indicates that the intention of the legislature is that situations of armed conflict will be proclaimed as they develop, and in certain exceptional cases pro-actively. (33) The instances where law enforcement or prosecution will actually need to rely on the interpretation of international law to determine whether an armed conflict existed in a particular country when the offence was allegedly committed, should be limited. The progressive nature of IHL, needs to be taken into account in the interpretation of 'armed conflict'. (34)

4.2 Prohibition of mercenary activities

The new Act prohibits and criminalises certain mercenary activities which can be committed in a country where no armed conflict exists, namely the participation, initiation, causing or furthering of a coup d'etat, uprising or rebellion against any government, (35) or directly or indirectly performing any act aimed at overthrowing a government or undermining the constitutional order, sovereignty or territorial integrity of a state. (36)

Except for these crimes, the new mercenary Act applies only in a country in which there is an armed conflict, or in a regulated country, proclaimed in terms of section 6 of the Act by the National Executive, as such, upon the recommendation of the National Conventional Arms Control Committee (NCACC). The new Act provides for a redrafted offence (section 2), prohibiting 'mercenary activity'. This offence contains elements of the previous definition of 'mercenary activity', as well as elements of the previous definition of 'foreign military assistance' that can be regarded as classical mercenary activities. Section 2 prohibits any 'person' in the Republic or elsewhere to participate as a combatant for private gain (37) in an armed conflict; directly or indirectly recruit, use, train, support or finance a combatant for private gain in an armed conflict; directly or indirectly participate in any manner in the initiation, causing or furthering of an armed conflict, or a coup d'etat uprising or rebellion against any government; or directly or indirectly perform an act aimed at overthrowing a government or undermining the constitutional order, sovereignty or territorial integrity of a state. In the IHL, the pursuit of monetary gain is virtually the determining factor in defining a mercenary, once the other conditions of the definition are fulfilled. (38)

The other conditions in terms of IHL are that the person must have been especially recruited locally or abroad in order to fight in an armed conflict; does in fact take a direct part in hostilities; is motivated to take part in the hostilities essentially for private gain, and is in fact promised material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces; is neither a national of a party to the armed conflict, nor a resident of a territory controlled by a party to the armed conflict; is not a member of the armed forces of a party to the armed conflict; and is not being sent by a state which is not a party to the conflict on official duty as a member of its' armed forces. (39)

The term 'combatant' is not defined in the new Act, but within the context of the IHL, it refers to a person directly taking part in hostilities. Within the context of the Act, it is also clear that the use of the word 'combatant' in the Act does not refer to the 'status' as 'combatant', but rather to the act of taking part directly in hostilities. (40)

Article 47 of Protocol I provides that a mercenary shall not have the right to be a combatant or a prisoner of war. The effect of paragraph 2 of Article 47 is that the exception in Article 47 applies only to members of a totally independent mercenary army, which is not under a command responsible to a party to the armed conflict for the conduct of its subordinates. Article 47 is thus not regarded as a real exception. (41)

Within the context of the new Act and the IHL, the reference to 'combatant' in section 2, is indeed a reference to an 'unlawful combatant', of which a mercenary is an example. During the deliberations in Parliament, there was criticism that the ambit of the new Act could be too wide, and in effect would create universal jurisdiction over mercenary acts committed by citizens of other countries and which are totally unrelated to South Africa or citizens of South Africa. 'Person' was consequently defined as:
   a person who is a citizen of, or permanently resident in, the
   Republic, a juristic person registered or incorporated in the
   Republic, or any foreign citizen who contravenes the Act within the
   borders of the Republic [of South Africa].


4.3 Proclaiming a country as regulated country

The NCACC must inform the National Executive whenever it is of the opinion that an armed conflict exists or is imminent in a country and that such a country should be proclaimed to be a regulated country.

The definition of 'armed conflict' together with the power to proclaim a regulated country, addresses some of the most profound deficiencies in the present Act. The question: "What happens when internal strife escalates into armed conflict and services covered by present Act are already being rendered?" had been asked. (42) With the new Act pro-active action can be taken to avoid exactly this position.

In the enforcement of the present Act, the lack of public knowledge on which countries are affected by the present Act, have proven to be the very first stumbling block in initiating an investigation, even intelligence gathering, or to prove a case in court. Once a country had been proclaimed as a regulated country, it would be clear that unauthorised actions in those countries are criminal.

4.4 Prohibition and regulation of 'assistance or service'

Whilst the new Act prohibits and criminalises mercenary activities outright; it provides for a regulatory framework of what is defined in the Act as 'assistance or service', which includes 'security services'. Unlike the present Act, the new Act defines 'security services' with reference to a variety of acts including guarding and protection services, security advisory services and training, installing, servicing or repairing security equipment, and monitoring signals or transmissions, in line with the definition in the Regulation of Private Security-Industry Act, 2002 (Act No 60 of 2002). 'Assistance or service' also includes any form of military or military-related assistance, service or activity, or any form of assistance or service to a party to the armed conflict by means of advice or training, personnel, financial, logistical, intelligence or operational support, personnel recruitment, medical or paramedical services or procurement of services. Not only is authorisation required for providing assistance or services, but also to negotiate or offer such assistance or service.

4.5 Difference between mercenary activities and assistance or service

In terms of the new Act, direct participation in hostilities for private gain (participating as combatant) would qualify as mercenary activity, whilst many actions which are more remote to hostilities would be covered by assistance or service. (43) It is therefore extremely important on where the line is being drawn on 'direct participation in hostilities'. The word 'combatant' was not used in the present Act, and is not defined in the new Act.

In view of the nature of modern warfare, participation by civilians in hostilities; armed civilians and human shields; counter-terrorism; and computer network attack; are cited as factors which merit closer investigation of the understanding of this concept. (44) Not only civilians on contract, servicing and manning high-tech equipment on the battlefield, but also intelligence personnel, often participate directly in hostilities. (45)

Within the context of modern warfare, a good case is made out for a broad interpretation of 'taking an active part in hostilities':
   Therefore in my mind, an individual performing an indispensable
   function in making possible the application of force against the
   enemy is directly participating. In other words, the appropriate
   test is whether the individual is an integral facet of the
   uninterrupted process of defeating the enemy. If so, participation
   should be at his or her own risk. This approach best preserves the
   underlying values resident in humanitarian law." (46)


Despite the above test, the new Act has to be interpreted within context. From the construction of the new Act 'assistance or service' cannot be regarded as 'mercenary' activities per se, but should a person providing such services take direct part in hostilities, he or she might be regarded as a mercenary. The question whether a person took direct part in hostilities must therefore be judged on a case-by-case basis on the merits determined by proven facts.

4.6 Exception to assistance or service

Another feature in the new Act is the exclusion that no act may be construed as assistance or service if such act is in accordance with the principles of international law, especially IHL, including the purposes and principles of the Charter of the UN and the Declaration on the Principles of International Law concerning Friendly Relations and Cooperation among States.

This exception should be viewed against the Bill that was initially introduced in Parliament, which excluded struggles waged by peoples in the exercise or furtherance of their legitimate right to national liberation, self-determination, independence against colonialism or resistance against occupation, aggression or domination by foreign nationals or foreign forces, from the definition of assistance or service. A similar provision appears in the Protection of Constitutional Democracy Against Terrorist and Related Activities Act, 2004 (Act No 33 of 2004).

Following various objections to the Portfolio Committee of Defence, during deliberations on the Bill in Parliament, the reference to freedom struggles referred to above, was deleted from the exceptions in the Bill. The question arises on how the new Act should be interpreted in respect of the exception as it is worded in the adopted Act. It is clear that if during a prosecution, or when prosecution is being considered, the defence could indicate that this exception is valid in respect of the alleged offence, this prosecution would fail.

The exception had obviously been narrowed down in order not to exclude any particular kind of conflict from the operation of the new Act, but to exclude actions which are taken in accordance with International Law, the Charter of the UN, and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Amongst States.

Both the said Charter and Declaration are aimed at international peace and security. The Charter recognises the right of states to defend themselves against aggression, but condemns all forms of armed conflict. The Declaration provides amongst others that:
   War of aggression constitutes a crime against the peace, for which
   there is responsibility under international law.

   Every State has the duty to refrain from the threat or use of force
   to violate the existing international boundaries of another State
   or as a means of solving international disputes, including
   territorial disputes and problems concerning frontiers of States.

   Every State has the duty to refrain from organizing or encouraging
   the organization of irregular forces or armed bands including
   mercenaries, for incursion into the territory of another State.

   Every State has the duty to refrain from organizing, instigating,
   assisting or participating in acts of civil strife or terrorist
   acts in another State or acquiescing in organized activities within
   its territory directed towards the commission of such acts, when
   the acts referred to in the present paragraph involve a threat or
   use of force.


No armed conflict as such contributes to the ideals and principles in the Charter or the Declaration. The Charter in Article 1 provides that the purpose of the UN is to maintain international peace and security, and to that end:

--to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace;

--to bring about by peaceful means; and

--in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.

The Charter and the Declaration establish the organs, through which the UN is empowered to promote, maintain and keep international peace and security, in particular the UN Security Council and its subsidiary institutions.

It is clear that the exception in section 1(2) of the new Act is aimed at those actions which have been taken by the UN itself to promote and keep the international peace and security, such as peace support and peacekeeping missions and post-conflict reconstruction undertaken by the UN or mandated by it and performed by or on behalf of the UN. The resolutions of the UN Security Council provide guidance and details of UN mandated operations, mandatory sanctions and events which are regarded as a threat to international peace and security.

An interpretation that no form of armed conflict is excluded from the operation of the new Act in terms of the exclusion is supported by the criteria for authorisation or exemption in section 9 of the Act. It is obviously also not the intention of the Act that the NCACC must determine which Party to the conflict must be regarded as the aggressor or fall foul of the principles of international law.

Whenever an authorisation or exemption is applied which could have the effects enumerated in section 9, the Committee has no authority to approve such authorisation or exemption. The criteria reflected in the new Act are the same as in the present Act except that in respect of terrorism, the new Act refers to the definitions of terrorist activity and terrorist and related activities as defined in the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004.

Conflict with the international obligations of the Republic; infringement of human rights; contribution to regional instability or escalation of regional conflict; and initiating or causing a coup d'etat, uprising or rebellion, are some of the criteria which prohibit the granting

4.7 Prohibition and regulation of enlistment in foreign armed forces

Whereas the present Act is silent on the issue of enlistment of South Africans in the armed forces of other states, section 4 of the new Act prohibits such enlistment if performed without the authorisation of the NCACC. Even if such authorisation is granted, it may be revoked by the NCACC if the person to whom the authorisation has been granted takes part in an armed conflict as a member of an armed force other than the National Defence Force of the Republic, and such authorisation contravenes any one of the criteria listed in section 9 of the new Act.

This is regarded as the single most controversial provision of the new Act. The provision in itself seems to fall within the ambit of the Constitution of the Republic of South Africa, 1996, which provides in section 198(b) that the resolve to live in peace and harmony precludes any South African citizen from participating in any armed conflict, nationally or internationally, except as provided for in terms of the Constitution or national legislation. Large numbers of South Africans have over a number of years enlisted in the UK armed forces simply as a good employment opportunity or to be trained as engineers or technicians.

The underlying threat that such employment may be terminated when a soldier in whom had been heavily invested in order to be deployed in armed conflict is indeed so deployed, creates uncertainty for both the employer and employee. This will lead thereto that South Africans might decide not to take the chance of enlistment; that foreign countries will be reluctant to enlist South Africans; or that in cases where South Africans were enlisted they might be offered citizenship of the country involved, in order to retain their services. In respect of persons already enlisted with foreign armed forces, the new Act in section 10(2) criminalises continued enlistment if a citizen of the Republic fails to apply for the required authorisation from the NCACC, within six months from the commencement of the new Act, as provided for in section 15(2). Once such an application is filed, the citizen may remain enlisted until the application is decided.

The extent of enlistment of South African citizens in foreign armed forces is indicative from the fact that during the period 1 March 2006 and 28 February 2007, 180 South African citizens were recruited into the British Army only. (47)

The provisions of the new Act, relating to enlistment should be able to withstand constitutional muster, in view thereof that they regulate enlistment in foreign armed forces; the provisioning of assistance or services and humanitarian assistance; and, except for mercenary activities, do not outright prohibit those activities. However, there may be circumstances where the application thereof could conflict with other rights in the Constitution, such as the right in section 22 of the Constitution to choose a trade, occupation or profession freely (note this right may be regulated by law, but one may not be deprived of the right). Any Constitutional challenge should, however, bear in mind the Constitutional imperative to regulate the participation of South Africans in armed conflict.

4.8 Prohibition and regulation of humanitarian assistance in country of armed conflict

Section 5 of the new Act provides that no South African humanitarian organisation may provide humanitarian assistance in a country where there is an armed conflict or in a regulated country, unless such organisation has been registered with the NCACC for that purpose. Section 13 of the new Act, however, provides for exemption of any such organisation by the President, as Head of the National Executive from this requirement in order to facilitate the rendering of humanitarian aid without delay, to relieve the plight of civilians in armed conflict. The distinction between humanitarian non-profitable organisations and corporations working for pecuniary gain is being blurred by private military and security companies. Private military and security companies do not hesitate to utilise the aims of humanitarian nonprofit organisations to advertise their activities. (48)

4.9 Jurisdiction

The new Act has extraterritorial application, in that an alleged offence in terms of the Act committed outside the Republic by a South African citizen, a person ordinarily resident in the Republic, a company incorporated or registered as such in the Republic, and any body of persons, whether corporate or incorporate in the Republic, may be prosecuted in a competent South African court, which may convict and sentence the accused, if found guilty. The definition of 'person' in the new Act, is aligned to the jurisdiction, in that 'person' is restricted in its meaning to a citizen; a permanent resident; a juristic person registered or incorporated in the Republic; or any foreign citizen who contravenes the provisions of the new Act in the Republic (an example would be a foreign person who recruits, trains or finances mercenaries in South Africa). Thus a South African citizen who recruits or trains mercenaries either within the Republic or outside the Republic may be prosecuted in a South African court, but a foreign citizen may only be prosecuted in a South African court if such recruitment, training, or financing took place in South Africa.

5. USE OF PRIVATE MILITARY AND PRIVATE SECURITY COMPANIES

Private military and private security companies are utilised extensively in conflict countries to support the war machinery, even as proxy forces to reduce public pressure on protracted conflicts as a result of financial and human costs, in roles which expose them daily to becoming involved in armed hostilities, be it in an offensive or defensive role. Recent developments have initiated a rethink of this practice, in particular from an IHL point of view.

A particular incident in this regard was where five or more employees guarding a US Embassy convoy in Baghdad at the Nisoor Square on 16 September 2007 shot and killed 17 civilians. Allegations are that only three of the deaths were justified. However, an official release of the Federal Bureau of Investigations (FBI) of the findings of their investigation is being awaited. (49) The incident raises many issues about the use of private military companies, immunities granted to them and compliance with the IHL, domestic Iraqi law as well as US law.

Concerns have been raised that there is an increasing phenomenon of outsourcing by states of core military and security functions to private companies and the commission of human rights violations with de facto impunity whilst operating in armed conflicts. Such situations are often associated with transnational companies of satellite subsidiaries with legal personality in one country, providing services in another and recruiting personnel from third countries. (50) This has created a dangerous 'grey zone'--in which security companies, contracted as civilians, but armed as military personnel, operate with uncertainties over their status as civilians or combatants: "These new modalities have replaced to a certain extent the use of traditional individual mercenaries". (51) The extent of the use of private military and security companies as official policy by the US government is evident from a study of the largest single US based private military company, namely Blackwater, which is described as "the powerful private army that the US government has quietly hired to operate in international war zones and on American soil, with its own military base, a fleet of twenty aircraft, and twenty thousand troops at the ready". (52)

6. CONCLUSION

The new Act is a definite improvement on the previous one. Mercenary offences will remain difficult to investigate and prove in view of their extraterritorial nature and the fact that they are being committed in destabilised countries where the authorities in power normally do not favour criminal investigations and where they are deploying mercenaries themselves. The new Act is an improvement on the present Act in the following respects: the definition of 'armed conflict' is improved and together with the power to proclaim regulated countries, will provide legal certainty as to where the new Act shall apply; the new Act provides for a definition of security services, which is not defined in the present Act; the offence relating to mercenary activities is reformulated and distinguished from the rendering of security, military and intelligence services in an armed conflict; enlistment of South Africans in foreign armed forces as well as the provision of humanitarian assistance in armed conflicts are regulated in terms of the new Act; the provisions related to extraterritorial jurisdiction are aligned with similar provisions in the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004; and penalties for offences in respect of mercenary activities and provisioning of assistance or services are prescribed (minimum sentences). The proclamation of a regulated country in terms of section 6 of the new Act should be subject to requirements to determine whether there is an armed conflict, as reflected by the IHL, and should not be a unilateral political decision.

The new Act provides for the proclaiming of an 'imminent' armed conflict, which can be justified in cases of the rapid build-up to an armed conflict, or in circumstances such as genocide or gross violations of human rights, where the IHL applies, in terms of the Rome Statute of the International Criminal Court.

The determination whether an armed conflict does exist at any particular stage in a country needs to take into account the actors involved, and the duration, intensity and nature of the events. It is clear that situations of internal disturbances or tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, are not regarded as being armed conflicts. Countries where peace processes are unfolding might still be regarded as in armed conflict. The level of violence in Darfur, Sudan would qualify the country as one still to be in armed conflict, despite ongoing peace processes. The lifting of sanctions by the UN Security Council in respect of a particular country might be a clear indication that the situation is no longer a threat to peace.

The new Act, however, is in line with international trends which call for regulation of private military and private security companies in armed conflicts, and the broader interpretation of the meaning of 'taking direct part in hostilities'. In this respect, the new Act can be regarded as a model in support of IHL standards, and should be taken into account as such in the much needed review of international and regional instruments relating to mercenary activities.

Dr Philip C Jacobs *

Assistant Commissioner: Head Legal Support

Crime Operations

South African Police Service

REFERENCES

(1.) Republic of South Africa, Government Gazette No 30477, Government Notice No1083, 16 November 2007, Government Printers, Pretoria.

(2.) Republic of South Africa, Omega International Associates; South African Catholics Bishops Conference; South African Special Forces League; British Association of Private Security Companies; the Washington DC, US based International Peace Operations Association; Safer Africa; and the International Committee of the Red Cross (ICRC): Internet: http://www.pmg.org.za, Portfolio Committee of Defence.

(3.) Republic of South Africa, Prohibition of Mercenary Activities and Regulation of Certain Activities in Areas of Armed Conflict Bill [B42-2005], Government Printers, Pretoria.

(4.) South African Press Association (SAPA), 1 August 2003. Internet: http://www.iafrica.com/news/sa/259075.htm, accessed 26 March 2003.

(5.) Rouget v S [2006] Judgements Online 15962 (T): The Court stated that mercenary activity is a serious offence, and an embarrassment to the country.

(6.) Republic of South Africa, According to Clarno, A, Corpwatch, 6 March 2005. 30 000 private security experts were deployed in Iraq, of which it was estimated that 5 000 to 10 000 were South Africans. South Africa was regarded as one of the top three suppliers of personnel for private military/security companies such as Erinys International, Meteoric Tactical Solutions, Sailor Services and DynCorp.

(7.) State v Steyl and Regional Court, Pretoria, case no. 14/0339/2004.

(8.) State v Mark Thatcher High Court of South Africa, Cape Provincial Division, unreported case 5 December 2005.

(9.) M&G Online, "E Guinea coup accused not guilty", 23 February 2007. RS Archer, V Dracula, L du Preez, E Harris, M Kashama, NT Mathias, H J Hamman and S Witherspoon were acquitted. Internet: http://www.mg.co.za, accessed 11 October 2007. See also judgment in Pretoria Regional Court case no. 14/4315/05.

(10.) Cilliers, J and R Cornwell, in Cilliers, J and P Mason (eds), Peace, Profit or Plunder? The Privatisation of Security in Africa's War-torn Countries, Institute for Security Studies, Halfway House, 1999, p 239.

(11.) Ibid, p84.

(12.) Venter, A J, War dog, Fighting other Peoples' Wars, Casemate, Havertown, 2003.

(13.) United Nations, Report of the Working Group on the use of mercenaries as means of violating human rights and impeding the exercise of the right of people to self-determination, UN Doc A/HRC/7/7, 9 January 2008, par 31, pp 11-12.

(14.) News24.com, "SA toll up in Iraq", 27 March 2008, Internet: http:// www.news24.com, accessed 28 March 2008.

(15.) International Committee of the Red Cross, International Convention against the Recruitment, Use, Financing and Training of Mercenaries, 4 December 1989, Internet: http://www.icrc.org/ihl.nsf/FULL/530?Open Document, accessed 26 March 2008.

(16.) United Nations, 2008, op cit, paragraph 52, p 23.

(17.) Ibid, paragraph 9, p 5.

(18.) International Committee of the Red Cross, Convention of the OAU for the Elimination of Mercenarism in Africa, Libreville, 3rd July 1977, Internet: http://www.icrc.org/ihl.nsf/FULL/485?Open Document, accessed 26 March 2008.

(19.) African Union, Document: CAB/LEG/24.6.

(20.) African Union, Summit: Decision of the Executive Council and Assembly at Summit dated 30 June to 3 July 2004, ASS/AU/Dec.36 and EX.CL/Dec. 145, Decision: DOC. EX.CL/106 (V).

(21.) Gulam, H, The rise and the rise of private military companies, Thesis, UN Institute for Training and Research: Programme of Correspondence for Training and Research, 8 November 2005, p 12.

(22.) Ibid, p 13.

(23.) International Criminal Court, Internet: http://www.icc-cpi.int/about.html, accessed 27 March 2008.

(24.) United Nations, 2008. op cit, par 5, p 4.

(25.) United Nations, "The impact of mercenary activities on the right of peoples to self-determination", Fact Sheet No 28, undated, par 7(c), p21.

(26.) United Nations Office on Drugs and Crime, Internet: http://www.unodc.org/ unodc/en/terrorim/index.html, accessed 27 March 2008.

(27.) Gibson, E, Beeld (Pretoria), 25 January 2008, p 7; and Le Roux, L, "South African Mercenary Legislation enacted", ISS Today, 21 January 2008. Internet: http://www.issafrica.org/index.php?link_id=14&slink_ id=5421&link_type=12&slink_type=12&tmpl_id=3, accessed, 25 January 2008.

(28.) Balendra, N, "Defining armed conflict", New York University Public Law and Legal Theory Working Papers, Paper 63, 2007, p 3.

(29.) UK Crown Copyright Undated. British Air Power doctrine AP 3000. paragraphs 1.1.5 to 1.1.7. Internet: http://www.raf.mod.uk/downloads/ ap3000.cfm, accessed 12 February 2008,

(30.) Ibid, p 1.1.1.

(31.) Balendra, N, op cit, p 52.

(32.) United Nations, 2008, op cit, par 26, pp 9, 10.

(33.) See paragraph 4.3. The NCACC must inform the National Executive when it is of the opinion that an armed conflict exists or is imminent in a country and that the country should be proclaimed to be a regulated country.

(34.) Stewart, J G, "Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict", International Review of the Red Cross (IRRC), Vol 85, No 850, 2003, pp 313-350. In view of the effect of the internationalisation of armed conflicts, Stewart calls for a single definition of armed conflict as opposed to the different criteria in respect of internal and international conflict.

(35.) Section 2(1) (c) (ii) of the new Act.

(36.) Section 2(1) (d) of the new Act.

(37.) Ripley, T, Mercenaries Soldiers of Fortune, Paragon, Bristol, 1997, pp 8-9, refers to 'classic mercenaries' as "freelance contractors, who will fight for anyone if the price is right, and are often involved in activities without the knowledge or approval of their government. They will work for governments, rebel groups, large multi-national companies or criminal organizations". He mentions three other categories, namely those who legally enlist with a regular armed force of another country, such as the Nepalese Gurkhas; individuals hired by governments to participate in 'deniable' operations abroad; and volunteers who fight in foreign wars for personal or ideological reasons rather than for money-sometimes for the 'thrill of battle' or simply for adventure. The new Act, in consonance with the IHL, includes only 'classic mercenaries' in its prohibition of mercenary activities. A motive such a private gain is, however, not an element in respect of the regulation and offence in respect of 'assistance or service'.

(38.) Sandoz, Y, Swinarski, C, and B Zimmermann, Commentary on the Additional Protocols of June 1977 to the Geneva Conventions of 12 August 1949, Martin Nijhoff Publishers, Geneva, 1987, paragraph 1802, p 578.

(39.) Ibid, paragraphs 1808 to 1814, pp 578-581.

(40.) Article 47(1) of Additional Protocol I provides that a mercenary shall not have the right to be a combatant or a prisoner of war. It might have been clearer if section 2(1) provided that "no person may ... take a direct part in the hostilities in an armed conflict". Dormann, K, "Legal situation of unlawful/unprivileged combatants", International Review of the Red Cross (IRRC), Vol 85, No 8, March 2003, p 45, on p 49, defines 'unlawful/unprivileged combatant/belligerent' as "describing all persons taking part in hostilities without being entitled to do so and who therefore cannot be classified as prisoner of war on falling into the power of the enemy".

(41.) Kalshoven, F, Constraints on the waging of war, 2nd edition, International Committee of the Red Cross, Geneva, 1987, p 9.

(42.) Cilliers, J and R Cornwell, op cit, p 216.

(43.) See in this regard the differentiation between 'mercenary', 'private military company' and 'private security company', and which acts should be prohibited and which regulated, in the opinion of Gulam, H, op cit, pp 6 and 32.

(44.) Schmitt, M N, Direct participation in Hostilities and 21st Century Armed Conflict, undated. Internet://www.michaelschmitt.org/imges/ Directparticipationpageproofs.pdf, accessed 29 January 2008.

(45.) Ibid, p 519.

(46.) Ibid, p 529.

(47.) United Kingdom, House of Commons Hansard, 18 February 2008, Column 86 W, reply by Secretary of Defence on a question posed by Nick Harvey.

(48.) United Nations, 2008, op cit, par 28, p 10.

(49.) Associated Press, "Report: FBI finds 14 Blackwater killings Unjustified", New York Times, 14 November 2007. Internet: http:// edition.cnn.com/2007/US/11/14/iraq.blackwater.ap/index.html, accessed 5 March 2008.

(50.) United Nations, 2008, op cit, par 16, p 7.

(51.) Ibid, par 25, p 9.

(52.) Scahill, J, Blackwater: The rise of the world's most powerful mercenary army, Nation Books, New York, 2007, p xviii.

* The views expressed in this article do not reflect official government views or interpretations, but are the personal views of the author.
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Date:May 1, 2008
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