PROHIBITION OF MERCENARY ACTIVITY AND PROHIBITION AND REGULATION OF CERTAIN ACTIVITIES IN AN AREA OF ARMED CONFLICT BILL, 2005

The International Committee of the Red Cross ("ICRC") welcomes the opportunity of expressing its views on South Africa's Prohibition of Mercenary Activity and Prohibition and Regulation of Certain Activities in an Area of Armed Conflict Bill, 2005 ("the Bill") and hereby submits its comments. Some are relatively minor; others relate to issues of international humanitarian law (e.g. Article 9); and others are still of direct concern to the ICRC (e.g. Article 5).

Article 1 - Definitions and interpretation

· Article 1(1) "Armed conflict"

Although this provision purports to define ‘armed conflict’, it does not in fact provide any indication of the constitutive elements of an armed conflict other than the possible parties. Without attempting to list these elements in the Bill, guidance could be given to those applying and interpreting it, by referring them to international humanitarian law. This could be done quite simply by inserting the words "as the term is understood under international humanitarian law" after the opening words "' armed conflict' includes any armed conflict":



"1. Definitions and interpretation

(1) In this Act, unless the context indicates otherwise –

‘armed conflict’ includes any armed conflict as the term is

understood under international humanitarian law – …"



· Article 1(1) and Article 6 "Area" of a country

These provisions envisage the possibility of making a proclamation finding the existence of an armed conflict not just in a particular country but also in an area of a country.

While a finding that a particular country is experiencing an armed conflict is not problematic, a finding that an area of a country is experiencing an armed conflict may raise concerns. Under international humanitarian law, it is misleading to speak of an armed conflict in a particular area of a country. If it is a determined that a situation of violence amounts to an armed conflict, international humanitarian law will apply in the entirety of the territory of the state involved, even though the fighting might only be taking place in a part of the territory.

Moreover, it is questionable whether it is meaningful from a practical point of view to attempt to regulate the provision of assistance to an area of a country only.

These concerns could be addressed by removing the reference to the possibility of proclaiming an area of a country a regulated area in Article 1(1) and Article 6.

References to area of a country should therefore also be deleted throughout the Bill, including from the Title of the Bill.

· Article 1(1) "Assistance or service"

The Bill covers both "military or military-related assistance" – not further defined – and "any other form of assistance, service or activity" more generally. This other form of assistance is defined extremely broadly, as many forms of non-military or non-security services could easily fall within the definition and thus the Bill.

By way of example, some of the ICRC's own activities could fall within sub-paragraph (b), such as the provision of advice or training on international humanitarian law or of medical or paramedical services. It is probably not the intention of the Bill to cover such activities.

One possible way of limiting the scope of this provision would be to link the list of other forms of assistance to "military-related assistance" mentioned in sub-paragraph (a) so that the activities listed in sub-paragraphs (b) (i) to (v) become illustrative examples of military or military-related assistance. The present sub-paragraph (b) would be deleted. Sub-paragraph (a) could thus provide as follows:

‘assistance or service’ includes- (a) any form of military or military-related assistance, service or activity, including by means of –
(i) advice or training;
(ii) personnel, financial, logistical, intelligence or operational support;
(iii) personnel recruitment;
(iv) medical or para-medical services; or
(v) procurement of equipment; or

(b) security services.

Article 1(2) – exclusions

The exclusions in Article 1(2) are extremely broad and risk rendering the Bill unworkable. As the exclusions are currently drafted, they can easily include any international armed conflict, including occupation, as well as many non-international armed conflicts, where a party is fighting for "internal" self-determination. Moreover, the Bill does not foresee the President making a determination of whether a particular conflict falls within this exemption.

In practical terms, this means that a company will have to decide whether the conflict in which it intends to work is one for example, which is being fought in legitimate response to alien aggression, in order to determine whether it needs to obtain authorisation under the Bill. This is an extremely complex political and legal determination that probably should not be left to companies.

Furthermore, as there will always be one side to a conflict which as a matter of law is fighting an alien aggression – and in practice both sides are likely to be claiming this - this means that in practical terms South African companies and nationals will be allowed to directly participate in hostilities and provide military services in most conflicts as such activities would fall within the exemption. This appears to run contrary to the object and purpose of the Bill.

One possible way to avoid such problems and to provide guidance as to the application of the Bill to a particular struggle would to be require the President or competent authority to make a proclamation as to whether a particular conflict is covered by the Bill or falls within the exception.

Article 2 – Prohibition of mercenary activity

The prohibition in Article 2(c)(i) of "participat[ing] in any manner in the initiation, causing or furthering of an armed conflict" is extremely broad and opened-ended. For the sake of clarity and certainty it may be desirable to at least give some illustrative examples of the types of activities covered.

Article 3 – Prohibition and regulation of rendering or providing certain assistance or services in an area of conflict

Rather than referring in the title to the provision of assistance or services in an "area" of conflict it may be more meaningful to speak of the provision of assistance "in relation to" an armed conflict. The types of services covered by the Bill are extremely broad and some of them can easily be rendered very far from the geographic area of the conflict. As aforementioned, such a modification would also require changing the title of the Bill as currently this repeats the words "area of armed conflict".

Article 5 – Prohibition and regulation of humanitarian assistance in area of armed conflict

This is the provision that is most problematic to the ICRC for a number of reasons. First, while we understand the reason why the South African Government wishes to regulate military assistance and security assistance, it is not clear to us why it also wishes to regulate the provision of humanitarian assistance.

Secondly, we are troubled by the reference in the third preambular paragraph to humanitarian assistance as a form of military assistance. Although often rendered in situations of armed conflict or other complex emergencies, humanitarian assistance is intrinsically different from military assistance. Inter alia, it must be provided in accordance with generally accepted humanitarian principles of humanity, neutrality impartiality and independence. This is precisely the converse of military assistance provided in support to one side of a conflict. This reference effects a dangerous blurring of the two concepts.

Thirdly, no definition is given of what is meant by humanitarian assistance for the purpose of the Bill.

Finally, this provision is extremely broad in scope. It applies not only to any South African national working in the humanitarian world, for example for the United Nations Office of the High Commissioner for Refugees or an international non-governmental organisation such as Oxfam or a South African non-governmental organisation, but also to all South African organisations. Moreover, as the Bill does not limit the scope of this provision to South African physical or legal persons, this provision requires any physical or juridical person wishing to carry out humanitarian activities anywhere in the world other than South Africa to obtain prior exemption from the National Conventional Arms Control Committee ("The Committee"). This extremely extensive scope of application, we suggest, is unwarranted.

Article 9 - Criteria

Considering that the focus of the Bill is the provision of services in armed conflict, and that international humanitarian law is the body of law that regulates armed conflicts, a reference to the risk of violations of this body of law should be included among the criteria to be considered by Committee when deciding whether to issue an authorisation. This could be achieved by the addition of a sub-paragraph 9(b)bis along the lines of:

result in violations of international humanitarian law in the territory in which the assistance or service is to be rendered or the exemption granted.

Article 11 – Extra-territorial jurisdiction

Although the Bill by necessity must apply to activities committed outside South Africa, the extent of the extra-territorial jurisdiction granted to the South African courts is extremely broad. Not only does the Bill give the courts jurisdiction over activities performed outside South Africa by South African citizens; persons ordinarily resident in South Africa; companies incorporated or registered in South Africa; or any body of persons, corporate or unincorporated in South Africa, (Articles 11(1)(a), (b), (d) and (e) respectively), but it also applies to other persons arrested in the South African territory, territorial waters or on board a ship or aircraft registered there (Article 11(1)(c)) as well as any other person (Article 11(2)). These last provisions are problematic because it means that a non-South African national who carried out an activity proscribed by the Bill, which was not unlawful in the place where it was committed, would nevertheless face criminal proceedings if s/he was in South Africa.

By way of example, the Bill as it stands would give the South African courts criminal jurisdiction over a Swiss employee of the ICRC who had provided humanitarian assistance in Sudan without obtaining the authorization of the Committee.

While such extensive extra-territorial jurisdiction may be acceptable in relation to acts criminalised under widely ratified conventions, such as grave breaches of the 1949 Geneva Conventions and their Additional Protocols of 1977, the Convention against Torture or the terrorism conventions as well as, possibly, the mercenarism conventions, it is problematic in relation to the broad range of activities that are covered by the Bill and which are not proscribed by international law nor in most national systems.

While such extensive extra-territorial jurisdiction may be considered justified in relation to persons engaged in mercenary activities, as national implementation of South Africa's obligations under the OAU Convention for the Elimination of Mercenarism in Africa, it is not warranted in respect of the range of other activities covered by the Bill.

One possible way of addressing this issue would be for the more extensive bases of extra-territorial jurisdiction – namely those in the aforementioned Articles 11(1)(c) and 11(2) - to only apply to violations of Article 2 (mercenarism) and, possibly, Article 4 (foreign enlistment). Violations of Article 3 (provision of military and security assistance) and, if this provision is retained, Article 5 (provision of humanitarian assistance) would only give rise to the more limited extra-territorial jurisdiction foreseen in Articles 11(1)(a), (b), (d) and (e).