HELMOED RÖMER HEITMAN

 31 OCTOBER 2005            

 

Prohibition of Mercenary Activity and Prohibition and Regulation of Certain Activities in an Area of Armed Conflict Bill, 2005

 

 

Comment:

 

1.          Re:  1. Definitions and interpretation.

           

The wording of subsection (1) b. is such that it appears to exclude a conflict between the armed forces of a state and dissident or rebel armed forces in that state. The word “foreign” as used here may be intended to refer to a state other than South Africa, but as used (“in any other country or area which has not been so proclaimed, between - i. The armed forces of a foreign state…”) suggests that it does not refer to the armed forces of the state in which the conflict is taking place, but to the armed forces of some other power.

 

2.         Re:  1. Definitions and interpretation.

 

“(2) Notwithstanding any provision of this Act or any other law, no act shall for any reason or purpose be considered as assistance or service, as defined in subsection (1), if such act is –

(a)     committed during a struggle waged by peoples in the exercise or furtherance of their legitimate right to

(i)                   national liberation;

(ii)                 self-determination;

(iii)                independence against colonialism; or

(iv)                resistance against occupation, aggression or domination by alien or foreign forces;…..”

 

This subsection appears fraught with potential dangers.

 

For instance, what will South Africa’s position be vis a vis South Africans assisting the Front for the Liberation of the Cabinda Enclave (FLEC)?

 

FLEC has been fighting for “national liberation”, “self-determination”, “independence against colonialism” and in the form of “resistance against occupation” since the early 1960s – first against Portugal as colonial power, and since 1976 against Angola as a colonial or occupying power. The case for Cabinda to be independent would seem to be even stronger than that of East Timor, which did finally win independence from Indonesia. More to the point, the value of Cabinda’s oil resources is such that FLEC will very probably sooner or later find a major power willing to support it.

 

The subsection as it stands, would mean that South Africans could legally participate in that struggle against the interests of fellow SADC member Angola.

 

A similar situation could arise with respect to the Casamance region of Senegal, in southern Sudan and in several other cases in Africa and in other countries such as, for example Russia, Indonesia or the Philippines. It would also place South Africa in a contentious position with regard to the Jammu and Kashmir dispute between India and Pakistan.

 

3.         Re: 4. Prohibition and regulation of enlistment of South Africans in foreign armed forces

 

Sub-section (1) does not state whether an international military or security organisation would be deemed to be a “foreign armed force”.

 

This is relevant in respect of individual South Africans who may serve with the United Nations, or a similar body, as security experts or in a similar post in their individual capacity rather than officially seconded by South Africa. As the Act stands, they would seem to be in contravention. South Africans serving with the United Nations de-mining teams deployed in several countries would, for instance, seem to be in clear contravention on two counts. If they are employed by a de-mining company contracted by the United Nations, and much of this work has been contracted out, they would additionally be vulnerable to the charge of having provided their services “for private gain”.

 

Sub-section (2) of this section is, quite simply, silly: Once a person has attested as a member of a country’s armed forces, he or she cannot simply resign if that country becomes involved in an armed conflict.

 

What we are saying here is, in effect, that South Africans may not join the armed forces of another country. If that is what we mean, why not simply say so?

 

Before we do so, however, we need to consider:

 

a.         The position of SANDF members serving in exchange appointments in other armed forces.

 

b.         The tradition in the Commonwealth of individuals serving in the armed forces of other Commonwealth countries.

 

It is worth bearing in mind that such foreign military service can gain valuable experience for the SANDF.

 

4.       Re:  5. Prohibition and regulation of humanitarian assistance in area of armed conflict.

 

As it stands, this section would have made it impossible to respond quickly to, for example, the earthquakes in Pakistan or Algeria. There is reference to an “interim authorisation”, but the track record of government (any government in any country) at taking quick decisions is not good.

 

Quite apart from the quick response issue, the Act as it stands renders third country nationals potentially liable to arrest in South Africa for providing medical or other emergency services in a country or area that South Africa has deemed to be in conflict or where conflict is deemed to be “imminent” (read Section 5 together with Section 11 Subsection (2)).

 

In effect, this Act would put South Africa in the position of having outlawed the activities of the International Red Cross in zones of conflict.

 

 

5.         Re:  11. Extra-territorial jurisdiction

 

As this section stands, it purports to give South Africa the power to arrest and try a foreign national for actions carried out in a third country that are not a crime in either his home country or that third country:

 

“(2) Any act alleged to constitute an offence under this Act and which is committed outside the Republic by a person, other than a person contemplated in subsection (1), shall, regardless of whether or not the act constitutes an offence or not at the place of its commission, be deemed to have been committed also in the Republic if that person is  -

(a)     found to be in the Republic; and

(b)     is for one or other reason not extradited by South Africa or if there is no application to extradite that person. 

 

This sub-section specifically refers to “a person, other than a person contemplated in subsection (1)” – ie a person who is neither “a South African citizen” nor “ordinarily resident in the Republic”, in other words a foreign national with no domicile in South Africa.

 

As that subsection stands, it purports to give South Africa the right to arrest and try a, to take a random example, citizen of the United States who is a member of his armed forces and who has served in Iraq.

 

It is difficult to believe that this is the serious intention of the government, and even more difficult to believe that any such action would be accepted by the government of some person so arrested and tried. The diplomatic implications could be considerable.

 

6.         Outlawing United Nations Peacekeepers and the International Red Cross

 

Perhaps of more concern is that Section 11 as it stands would render liable to arrest and trial a foreign national who has served in a United Nations peacekeeping force or who has served as a security official with a United Nations mission in a country suffering armed conflict and having been so proclaimed by the South African government.

 

As the Act and Section 11 stand, such persons would be in clear contravention, having clearly either “enlisted in a foreign armed force” or been “rendering or providing certain assistance or services in an area or armed conflict” or in which armed conflict “is imminent”, and would be subject to arrest in terms of Section 11 if “found to be in the Republic”.

 

In effect, this Section of the Act would appear to seek to outlaw United Nations peacekeeping operations as well as those of the African Union, the European Union and other organisations.

 

Worse, as discussed in paragraph 4, this section, when read together with Section 5 and the inclusion of “medical or paramedical services” under “assistance or service” in Section 1 Sub-section (1), would seem to have the effect of outlawing the activities of the International Red Cross in any area of conflict.

 

6.         The impact on investment in Africa

 

The government is committed to building the wider economy of Africa, and is keen to see South African companies invest in Africa and do business in Africa. That will, inevitably, see South African companies have personnel, assets or interests in countries in which there is conflict or in which a conflict breaks out. This Act makes it illegal for those South African companies to utilise the services of South African security companies to assist them. In fact, it would make it illegal for them to employ any security company, because they would still be “managing, controlling or supervising the rendering of any of the services referred to in (a) to (h) (as per the definition of security services).

 

It is surely illogical to do this while at the same time encouraging South African companies to do business in Burundi, in Cabinda, in the Congo Republic, in the Democratic Republic of Congo, in Sudan or in Uganda among others. Any company doing business in one of those countries will need the services of security consultants and specialists, and a South African company would logically prefer to retain the services of South African security specialists. As this Act stands, that would place both the company and the security company in contravention of the law.

 

In fact, taking the Act literally, a South African company doing business in Bangladesh, India, Indonesia or Pakistan, to take just some examples, could find it has contravened this Act if it hires a South African security company to advise it, or even if it hires a local security company. 

 

8.         Informing South Africans in other countries

 

The Act does not appear to make any provision for informing South Africans who may be employed in the provision of security or medical or other services in any given country of the fact that the country has been “proclaimed”. A person could, thus, in all innocence become guilty of an offence. The old adage has it that “ignorance of the law is no excuse”, but a doctor serving somewhere in the interior of, say, Cameroon, would find to very difficult to keep up to date with South African government proclamations. 

 

9.         Impact on Foreign Policy

 

This Act would result in potentially serious complication of foreign policy. Assuming conflict in any given country, the government would in effect be forced to either proclaim that country or a part of it as being an “area of conflict” or not so proclaiming it. Either decision would be a specific act of foreign policy, with implications that will depend on the particular case.

 

That would reduce the freedom of manoeuvre of the Department of Foreign affairs and would in some cases carry real risk of putting South Africa in the invidious position of either taking a stand that is gravely offensive to a friendly government or being openly hypocritical by, for instance, not declaring an “area of conflict” when there patently is a serious armed conflict.

 

 

 

                                         Helmoed Römer Heitman

                                                                                                                            Defence Analyst & Consultant            

Telephone         021 438 8543 or 423 0124                                                               Suite 101, 42 on Burg

Mobile               083 675 0615                                                                                 Upper Burg Street     

Telefax              021 438 5207                                                                                 Cape Town   

E-mail               [email protected]                                                                      8001

 

                                                                                         31 October 2005