SOUTHERN AFRICAN CATHOLIC BISHOPS' CONFERENCE (SACBC)

Submission to the Portfolio Committee on Defence on the Prohibition of Mercenary Activity and Prohibition and Regulation of Certain Activities in an Area of Armed Conflict Bill (2005)

Introduction

The Southern African Catholic Bishops' Conference (SACBC) welcomes the opportunity to comment on this Bill.

In broad terms we are supportive of what the Bill aims to achieve, as we were of its predecessor, the Regulation of Foreign Military Assistance Act, 15 of 1998. It would appear that the earlier statute failed in certain respects adequately to control military or quasi-military activities by South Africans abroad, especially under the guise of 'security services'.

At the same time, we have some reservations about the new Bill, specifically concerning the exception it makes for 'freedom struggles', and concerning the position of humanitarian undertakings. These will be dealt with in greater detail below.

South Africa's military presence in other countries since 1994 has taken essentially two forms: On one hand, participation in multi-lateral peace-making and peace-building exercises, sanctioned by international or regional organisations. On the other, unofficial, and usually commercially-driven, operations, often involving the provision of professional security services in theatres of conflict. It may not be completely accurate to describe all of the latter as 'mercenary activities', but that is what most of them appear to be. At the same time, many South African organisations and individuals have undertaken noble work in conflict zones attempting to facilitate settlements, bring warring parties together, and create conditions for a sustainable peace. The challenge for the legislation now under consideration is to find ways of preventing our citizens from engaging in mercenary work, while still allowing and encouraging civil society's peace-building and humanitarian work.

Specific Comments

We understand, and to a large extent sympathise with, the exception that the Bill seeks to make for people involved in struggles for national liberation, independence, self-determination or resistance against foreign domination. However, we suggest that these concepts are at once subjective and dynamic, and accordingly difficult – if not practically impossible – to define with any certainty.

Some of the people currently fighting in Iraq against the occupying forces no doubt sincerely believe that they are engaging in such a struggle; yet we assume that Parliament does not intend through this Bill to allow South African citizens to join them. Many similar examples could be given with reference to various other sites of conflict where the protagonists consider that they are acting in pursuit of freedom.

It is not sufficient to say that the acts must be conducted 'in accordance with the principles of international law' and treaty, as set out in clause 1(2)(b). Any number of individual acts may well be in line with these principles, and carried out in the name of a freedom struggle, but at the same time be part of a wider conflict of which aspects are not in accordance with international law or treaty. How will it be possible to distinguish the individual act from the wider conflict?

The dynamic nature of freedom struggles is also problematic. A war of national liberation might start off following the dictates of international law, but then degenerate to the point where acts of terrorism are undertaken. What is the position of a South African citizen involved in that war?

A further problem in this context is that nothing in this clause appears to prohibit mercenary services being provided, on a commercial basis, to groups engaged in a freedom struggle. The intention appears to be that the legitimate right of peoples to fight for their freedom should be recognised, and that South African citizens who are motivated to join such struggles should be free to do so. The question is whether the motivation should be altruistic or commercial. We assume that Parliament is attempting to accommodate the former, but the wording of this clause seems to accommodate the latter as well.

We suggest that the last-mentioned problem could be resolved by adding at the end of clause 1(2) the following:

"; and

(c) not performed for monetary or material reward or in contemplation of such reward or in terms of an agreement providing for such reward."

It is difficult to understand what the point is of allowing a South African citizen to enlist in the armed forces of a foreign state, if permission to do so lapses automatically if the person concerned takes part in an armed conflict. It is surely the case that anyone who enlists in an army foresees the possibility of becoming involved in conflict; that is essentially the only reason for the existence of armies in the first place.

A further consideration is that clause 4(2) would place an intolerable burden on individuals who have received permission to enlist in a foreign force. If they were suddenly instructed to take part in hostilities they would either have to refuse to do so, and face the consequences (which might include severe penalties for desertion or refusal to obey a command), or – if they obey orders – they would be committing an offence in terms of the present Bill. We suggest that the law cannot impose such unreasonable burdens, or expect people to make such impossible choices. Clause 4(2) should therefore be scrapped.

 Clause 5: Humanitarian Assistance

It would appear that there is a need to regulate the provision of humanitarian assistance inasmuch as certain entities or individuals may operate under the guise of doing humanitarian work, when in fact they are supplying services that are not genuinely humanitarian. We suggest, however, that the system provided for by this clause is too restrictive and that it will unduly prejudice a range of organisations whose motives and endeavours are entirely noble.

Application to the committee (as envisaged by clause 7(2)) will no doubt be a time-consuming process, and it cannot be expected of the committee to react immediately such an application is received. We note, of course, that clause 5(2) provides for the chairperson to grant an interim authorisation, but even this could take days to be processed, especially if the chairperson is indisposed, abroad, or otherwise unable to consider the application. Likewise, applications for the exemption provided for in clause 13 would also need to be considered and processed. In certain instances a delay of even a few days could seriously diminish the effectiveness of humanitarian interventions.

Of particular concern are South African citizens who work for, or who are contracted to, foreign or international humanitarian organisations. As we read the Bill, a South African doctor working for the Red Cross and stationed in London would need authorisation before he or she could accept a deployment to provide humanitarian assistance in an area of armed conflict. South African missionaries and church personnel working in conflict areas and called on to provide humanitarian assistance would also need to apply for permission to do so, often from remote places and under the most exacting circumstances. We suggest that this both impractical and unnecessary, and would lead to absurd results.

It must surely be possible for Parliament to achieve the objective of preventing the use of a humanitarian 'cloak' by suspicious or devious elements without, at the same time, hampering genuine efforts.

As a step in this direction, we would suggest the following. The committee should develop and maintain a register of 'approved' organisations whose operations would not be subject to the application requirements of clause 7. There are certain obvious candidates for inclusion in such a register – the Red Cross/Red Crescent, Médécins Sans Frontières, Oxfam, and South African groups such as Gift of the Givers and SA Rescue International. Other organisations could apply for inclusion in the register and these applications could be carefully scrutinised to exclude those with suspect motives or agendas. It would also be a simple matter for an organisation to be de-registered if it deviated from the conditions of registration.

Such a system would mean in effect that approved organisations and the individuals working for them would enjoy a standing exemption from the prohibitions contained in clause 5 and from the application provisions of clause 7, rather than the ad hoc exemptions envisaged in the Bill.

Finally, concerning humanitarian work, we strongly suggest that the application fees mentioned in clause 7(4) should not apply to humanitarian organisations. There is something distasteful about expecting those who wish to render humanitarian services, often voluntarily and at no cost to the recipients, to have to pay for permission to do so. In any event, the cost of waiving the fee is likely to be less than negligible.

We fully support and endorse the criteria set out for authorisations in clause 9, and would urge that criteria (b) – (e) receive the particular attention of the committee.

 Conclusion

We reiterate our broad support for the Bill and commend both the Ministry of Defence and Parliament for recognising the weaknesses in the statute that this Bill will repeal, and for taking swift action to address them. However, we urge that the baby of genuine humanitarian assistance not be thrown out with the bathwater of hidden agendas.

For more information, please contact

Adv. Mike Pothier

Research Coordinator