• Definitions and interpretation.
• Enlistment in foreign armed forces.
• Humanitarian assistance.
• The National Conventional Arms Control Committee.
• Transitional provisions.
• Procedural fairness.
• Violation of rights.
• Extra-territorial application.

• The definition of armed conflict is far broader than under international law. For example, the Bill’s reference to armed conflict between armed groups may encompass mere civil unrest, riots and other isolated and sporadic acts of violence.

• A lack of clarity also results from the use of the concept "party to an armed conflict" (clause 3(1)(b)).

• The Bill prohibits certain acts by means of a definition of "assistance or service" which is too broad, lacking in guidance and impermissibly vague. The prohibition of acts of assistance/service, such as security services or the giving of advice and training or the provision of medical or para-medical services, is an inappropriate use of the criminal law. None of these acts of assistance is substantially damaging to society.
• Vagueness also exists regarding the exception to the definition of "assistance or service" as stated in clause 1(2).

• The prohibition in clause 2(c)(i) of "participating in any manner in the initiation, causing or furthering of an armed conflict" is extremely broad and open-ended.

• One of the objectives of the Bill is "to prohibit, subject to exceptions, the enlistment of South African citizens in foreign armed forces". The following should however be considered:

• Clause 4(2) is impractical since a member of a state’s armed forces cannot simply resign if that country becomes involved in an armed conflict.

• It is not clear from the Bill why the provision of humanitarian assistance needs to be regulated.
• The third paragraph of the preamble refers to humanitarian assistance as a form of military assistance. Although often rendered in situations of armed conflict, humanitarian assistance is intrinsically different from military assistance.
• The Bill does not define humanitarian assistance.
• As the Bill currently stands, it would be impossible to respond quickly to, for example, humanitarian crises in the Sudan or Pakistan.

• The NCACC is expected to decide on an application for authorisation with reference to the criteria set out in clause 9 of the Bill. However, none of the criteria provided in clause 9 provide constitutionally sufficient guidance to the NCACC in its task of effectively criminalising conduct in respect of which it refuses authorisation.
• The criteria set out in clause 9(a) provides that the Committee may refuse an exemption and thus criminalise conduct on the basis that it would be contrary to South Africa’s national or international obligations. As the Committee is currently constituted (that is, without the Minister or Deputy Minister of Justice and Constitutional Development), the Committee cannot objectively and accurately determine whether the applicant ought to be refused authorisation on account of the fact that it could or would be contrary to South Africa’s national or international obligations, since the Minister or Deputy Minister of Justice and Constitutional Development are responsible for extradition and international mutual assistance.
• The criteria set out in clause 9(b) entitles the Committee to refuse an application on the basis that the service would or could "result in the infringement of human rights and fundamental freedoms in the territory in which the assistance/service is to be rendered or the exemption granted."

• The criteria set out in clause 9(c) and (d) allows the Committee to refuse an application because such activity could lead to the following three different scenarios: Endangering the peace by introducing destabilising military capabilities or other negative consequences into a region where the service or humanitarian aid is required; contributing to regional instability; and negatively influencing the balance of power in such region or territory.

• Since the criteria stated in clause 9 are open-ended and lacking in guidance, the Committee has effectively been given carte blanche to refuse or grant an application for reasons that may have nothing or little to do with the national or international public interest, and which have far more to do with the subjective grounds of the government of the day’s ideological interests or present concerns on the geo-political stage.
• Due to the vagueness of the criteria that are set out in clause 9, "fair warning" to affected parties of the conduct that is expected from them is not provided. The Bill does not provide members of the security industry with fair warning of what exactly the lawmaker considers to be an unacceptable or undesirable service. Accordingly, parties that perform or wish to perform acts of assistance/service cannot, by consideration of the criteria set out in clause 9, know or predict whether their conduct will be considered criminal or not pursuant to an application for authorisation to the Committee.

• In its current form, the Bill does not contain any transitional provisions to cover those private security companies that are already involved in activities that amount to prohibited conduct in terms of the proposed legislation. This means that, should the Bill become law, all South African nationals that are working for security firms abroad may subsequently be in breach of the law and may be guilty of criminal offences.

• In terms of clauses 7 and 9, the authorisation process violates the principles of procedural fairness. As the Bill currently stands applicants are not allowed to state or defend their own cases. There is furthermore no obligation on the Committee to provide an applicant with explanations in the event of an application being rejected.

• In its current form, the Bill allows the Committee to make decisions that may affect an individual’s fundamental rights, without providing proper guidance to the Committee.

- The Right to Freely Choose and Practice One’s Profession: The Bill unjustifiably infringes the rights of South African citizens to choose and practice their trade, occupation or profession.

- The Right to a Fair Trial: In terms of the proposed legislation, any person, whether South African or not, who renders or provides security services without having received authorisation from the Committee, commits an offence. However, given the vagueness of the authorisation criteria and the broad and rather vague definition of prohibited "assistance or service", any criminal prosecution following a failure by an individual to apply for authorisation to start performing security services abroad, or a criminal prosecution in respect of an individual that already performs such services abroad and who has applied for authorisation but had such authorisation refused, would contravene the principle of legality. This is due to the fact that any definition of criminal conduct that is too vague or broad would infringe the right to a fair trial.

- Freedom of belief, opinion and conscience: Since individuals may perform acts of assistance/service abroad for reasons of conscience, belief or opinion, the risk does exist that such individuals may be refused authorisation in a way that infringes upon their right to freedom of belief, conscience and opinion.

• Considering the serious problem created by offensive mercenary activities, the Bill’s extension of extra-territorial jurisdiction over persons guilty of contravening clause 2 of the Bill is permissible. However, it is impermissible for the Bill to assert extra-territorial jurisdiction over persons that are guilty of contravening the remaining clauses of the Bill, which proscribe assistance/service outside the mercenary context.
• In terms of international law, it is recognised that a state is entitled, in certain circumstances, to make laws that are binding on nationals, irrespective of whether they are present in the state or not. This may, however, give rise to interstate tension if these laws conflict with the laws of the foreign state in which the national resides. It is therefore generally understood that when the application of a national law does infringe on the sovereignty of another state, it would ordinarily be inconsistent with, and not sanctioned by, international law.

• Clause 11(2) extends extra-territorial jurisdiction over non-South Africans. The Bill allows extra-territorial jurisdiction over a foreign national which has no connection of any kind to South Africa and who owes the country no allegiance. However, international law does not entitle a state to exercise jurisdiction over foreign nationals for crimes they commit abroad.

______________________________________________________________________

• International law and conventions we must comply with.
• Summary of recommendations.