30 Aug 2006: ISS Today: South Africa: Anti-Mercenary Bill Will Hamper Humanitarian Work
South Africa is poised to toughen already stringent laws against citizens serving as mercenaries in foreign wars and conflicts, but critics say the new legislation cuts too deeply and will hamper legitimate humanitarian operations.
The Prohibition of Mercenary Activity Bill will ban South Africans not serving in the domestic armed forces from participating in foreign wars in any capacity, whether they serve as soldiers or work for private companies as pilots or security personnel.
If ratified, the bill drafted by the ruling African National Congress (ANC) party could affect the thousands of South Africans working in security across Africa, Afghanistan and Iraq.
Commentary
The debate on the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Bill, 2006 (sic) that has been conducted by the South African Parliamentary Portfolio Committee of Defence over the last months has drawn interest, commentary and criticism, both nationally and internationally. The intent of the Bill is to prohibit mercenaries and mercenary activities, a move that is fully supported, but it then proceeds to legislate on activities outside of this domain. The original Bill was severely criticised due to its sweeping content and implications. The most significant of these were:
- Its broad definition of an “area of armed conflict” as well as “security services” that includes services which are internationally recognised as legitimate.
- Prohibition of the provision of humanitarian assistance without authorisation in a country where there is an ‘armed conflict’.
- Prohibition of enlistment by a South African in the armed forces of foreign states without authority and even if authority is obtained, the prohibition of taking part in an ‘armed conflict’ as part of that foreign armed force.
- The exclusion of participation in struggles of national liberation from these provisions.
- Its sweeping extra-territorial application.
During the debate the Committee invited submissions and held public hearings. Many submissions were received from South African and international actors and 3 days were allowed for public hearings before the Committee once again debated the Bill in detail. This commitment of the Committee to transparency, consultation and participation in law making is laudable. On 15 August, the Committee voted on the Bill and it was approved, although two of the opposition parties opposed the Bill.
The Bill as passed by the Committee represents an improvement on the Bill as initially introduced but some areas of concern still remain, as also indicated by the dissent of the two opposition parties. The improvements include:
- The removal of the clause on the exclusion of participation in struggles of national liberation from the Bill.
- The amendment of the clause on humanitarian assistance to now only require that South African humanitarian organisations should register with the NCACC.
- The curbing of the sweeping extra territorial application of the Bill. The amended Bill applies only to South African citizens, permanent residents, South African juristic persons and those foreigners who commit “mercenary activities” within South Africa.
- The qualification of the conditions for revoking the authority for South Africans enlisted in foreign armed forces when such a force is deployed in an armed conflict.
Yet certain concerns remain. These are:
The definition of “Armed Conflict” and “Security Services” remains very broad. A person providing a legitimate security service in a country not proclaimed as an area of armed conflict could find himself in contravention of the Bill if an armed conflict subsequently breaks out between “armed groups”. By these wide definitions, anyone working in the field of security services in countries such as Iraq and Afghanistan will need authorisation to do so. This could mean that thousands of South Africans currently doing legitimate work in such countries will now have to apply for authorisation and, if this is not given, will have to give up their jobs and return to South Africa where chances of employment are slim.
The other concern is the issue of enlistment in foreign armed forces. Again, many South African currently so employed face the uncertainty of obtaining authority and if obtained, the possibility of the cancellation thereof under certain circumstances. Depending on interpretation, it could mean that a South African serving in the British armed forces in Iraq would be in contravention of the Bill.
Whereas the Bill is fully supported in its clear provisions prohibiting mercenaries and mercenary activities, it still seems to be too vague in other provisions on the regulation of security related services. It is submitted that for the Bill, once enacted, to be effective and have the support of all, more attention should be given to the matter of clear definitions and that the right of legitimate employment for all South Africans be acknowledged.
The Bill must still pass through both chambers of Parliament before being signed into law by President Mbeki.
Len Le Roux, Defence Sector Programme, ISS Pretoria
