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