Prohibition of Mercenary Activities & Regulation of Certain Activities in Armed Conflict - 2006 Bill

1. PRESENTATION TO THE SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS ON THE PROHIBITION OF MERCENARY ACTIVITIES AND REGULATION OF CERTAIN ACTIVITIES IN AN AREA OF ARMED CONFLICT BILL, 2006

2. SCOPE • SCOPE • BACKGROUND • GAPS IDENTIFIED • KEY AMENDMENTS • CONCERNS ON THE BILL • AMENDMENTS BY PCOD • CONCLUSION

3. BACKGROUND • In response to increased participation of SA’s citizens in conflicts around the world, the Cabinet Lekgotla of May 2004 instructed the DOD to review the RFMA; • An Interdepartmental Task Team (ITT) consisting of the Departments of Defence, Justice, Foreign Affairs, Home Affairs, SAPS, National Prosecuting Authority, NIA, SASS and NICOC was set up to review the RFMA with the view to improving its effectiveness.

4. BACKGROUND (Cont’d) • The ITT invited Departments to submit inputs on the problem areas and how the RFMA may be improved. • Various inputs received from Departments served as basis for the work of the ITT. • In this process the DOD consulted widely and presentations were made to NCACC, JCPS DG Cluster and policy considerations were submitted to Cabinet for direction on certain issues.

5. GAPS IDENTIFIED • Foreign Military Assistance (FMA): • Pre-condition for the applicability of RFMA provisions (existence of armed conflict); • No mechanism to determine existence of armed conflict; • “Parties to the armed conflict”. • Humanitarian Activities: • Excluded from the definition of FMA; • Exclusion exploited in order to circumvent the application of the RFMA;

6. GAPS IDENTIFIED(Cont’d) • Enlistment in Foreign Armed Forces: • RFMA is silent on enlistment; • Sec 198(b) of the Const. precludes SA citizens from participating in armed conflict unless it is ito the Constitution or national legislation. • Penalties: • There were no prescribed penalties; • Option of a fine with regard to serious offences; • Given the lucrative industry, imposition of a fine did not serve as a deterrent.

7. GAPS IDENTIFIED(Cont’d) • Difficulties with gathering of evidence: • “Mercenarism” is conducted in closed rings; • Reluctance to prosecute by the State: • Convictions followed only after plea bargains; • This limited development of jurisprudence on the RFMA; • Alignment of RFMA with NCACC Act: • RFMA vests decision-making powers in the Minister of Defence which he must exercise in consultation with the NCACC; • Minister of Defence is a member of the NCACC;

8. KEY AMENDMENTS • Clause 1 Definitions: • [Foreign military assistance] “assistance or service”: • Military or military related assistance, service or activity by means of- • Training, personnel, financial, logistical, intelligence or operational support; • Procurement of equipment; • Medical or Para-medical services; and • Security services

9. KEY AMENDMENTS • Amended to include reference to “assistance, service or activity”; • Exclusion of “humanitarian activities” deleted; • “committee”: • amended to refer to the establishment of the NCACC by Sec 2 of the NCAC Act as opposed to the decision of 18 August 1995;

10. KEY AMENDMENTS • “regulated country”: • President will now be empowered to declare regulated areas to which the Bill will be applicable (Clause 6); • “security services”: • The RFMA does not define what “security services” involve; • Definition lifted from the PSIRA and provides for: • Protection of individuals and property; • Giving advice on protection of individuals, property and advice on equipment; • Training or instruction to security service; and • Installing, servicing and repairing of equipment.

11. KEY AMENDMENTS Sub-Clause 1(2) Exclusion: The definition of “assistance or service”, however, excluded struggles for: National liberation; Self-determination; Independence; and Resistance against occupation, aggression or domination by foreign forces. NB: The exclusion of the liberation struggles, self-determination, independence etc has been deleted by the PCOD from the Bill.

12. KEY AMENDMENTS (Cont’d) Clause 2: • Prohibition of Mercenary Activity: • Mercenary activity is prohibited. • Direct and indirect recruitment, training and financing of “mercenarism” is prohibited; • This also includes an action aimed at overthrowing or undermining the constitutional order or sovereignty of a state. • This clause broadens the scope of “mercenarism” to include indirect assistance or support; • Contravention of this clause is an offence.

13. KEY AMENDMENTS (Cont’d) Clause 3: • Rendering of assistance or service: • Prohibits the negotiation or offering of assistance or service without an authorisation • prohibits recruitment, training, or financing of persons to render assistance or service unless authorised or in accordance with an agreement that has been authorised; • Also prohibits any other act that has the effect of furthering military interests of a party to the armed conflict. • Contravention of this clause is an offence

14. KEY AMENDMENTS (Cont’d) • Clause 4: • Enlistment in Foreign Armed Forces: • The current Act is silent on enlistment; • The Bill prohibits enlistment with a foreign armed force unless it is authorised ito clause 7 of the Bill; • Such an authorisation shall be subject to a condition that it lapses once such a person participates in armed conflict or the Committee may revoke it in certain instances;

15. KEY AMENDMENTS (Cont’d) • Clause 5: • Rendering of Humanitarian Assistance: • Humanitarian assistance is no longer excluded from the provisions of the Act; • SA humanitarian organisation will now be required to be register with NCACC (Amendment by PCOD); • Humanitarian assistance is not regulated under RFMA.

16. KEY AMENDMENTS • Clause 6: • Proclamation of Regulated Country or Area: • This clause empowers the President to proclaim in the gazette, regulated countries or areas to which the Act shall apply; • The President may proclaim a country or area where there is a conflict or where conflict is imminent; • This will be done on the recommendations of the NCACC; • Each proclamation is required to be tabled in Parliament; • This is a new provision and is specifically intended to deal with borderline cases (grey areas) and to prevent SA citizens from destabilising other areas even if there is no conflict per se.

17. KEY AMENDMENTS (Cont’d) • Clause 7: • Application for Authorisations: • Empowers the NCACC to consider applications for authorisations (see sec 3,4 and 5); • Ito this clause the NCACC may refuse, grant (subject to conditions) or withdraw an authorisation; • This power is currently vested in the MOD and is required to be exercised on the recommendations of the NCACC. Since the MOD is part of the NCACC, it was felt that it should vest in the NCACC instead. • To deal with applications expeditiously, the Chair may after consultation with one other member grant an interim authorisation. • This authorisation is subject to ratification by the NCACC.

18. KEY AMENDMENTS (Cont’d) • Clause 10: • Offences: • This clause creates new categories of offences with regard to enlistment and rendering of humanitarian assistance; • The option of a fine with regard to mercenary activity and assistance or service has been removed; • This is done by amending the Criminal Law Amendment Act, 1997 (105 of 1997); • Contraventions of ss 2 and 3 are punishable with a maximum sentence of life and imprisonment of 15 to 25 years depending on whether the accused is a first, second or third offender, respectively;

19. KEY AMENDMENTS (Cont’d) • Clause 11: • Extra-territorial Jurisdiction: • The clause creates an extra-territorial jurisdiction for our courts with regard to acts committed outside the Republic by: • Citizens or residents; • Any otherperson who commits mercenary activity against SA, its citizen or property and is arrested/found in the Republic or in its territorial waters; and • Companies registered in the Republic;

20. KEY AMENDMENTS (Cont’d) • Clause 13: • Exemptions: • The clause provides for the granting of exemptions to certain organisations by the President in order to facilitate the rendering of humanitarian aid. • This power is currently vested in the Minister.

21. KEY AMENDMENTS (Cont’d) • Clause 14: • Amendment and Repeal of laws: • The Bill amends the Criminal Law Amendment Act with regard to penalties; • The Bill will, once it has been passed, repeal the RFMA in its entirety.

22. KEY AMENDMENTS (Cont’d) • Clause 15: • Transitional Arrangements: • The clause provides for the validity of the authorisations granted under the repealed RFMA; • Persons who are already enlisted or rendering assistance are given 6 months from the date of the coming into operation of the Act to apply ito this new Act; • Investigations and court proceedings initiated under the RFMA shall remain valid until they are finalised.

23. CONCERNS ON THE BILL • Overbreadth of some of the Provisions • Regulation of “assistance or services” by any “person”; • Extra-territoriality; • Regulation of Humanitarian Activities • There is a groundswell of opinion that the limitation on the rendering of humanitarian assistance to desperate civilians in areas of armed conflict will undermine South Africa’s contribution to humanitarian causes around the world, more especially in Africa. • Exclusion of legitimate Liberation Struggles: • the Bill does not make any attempt to define what is a “legitimate liberation struggle” or prescribe how a legitimate liberation struggle will be determined

24. CONCERNS ON THE BILL • Enforceability of certain Provisions (Enlistment): This provision presents a number of practical challenges: • Firstly, members of armed forces are generally obliged to serve unless specifically exempted from service in terms of the domestic laws of that particular country. • Secondly, it will require considerable resources to monitor and enforce compliance with this provision as most of these activities will be happening not only outside the borders of RSA but within the armed forces of other foreign states. Any attempt to rigorously enforce this provision may be frowned upon by the international community. • Insufficient Transitional Arrangements: • Arrangements should be made to protect persons already rendering “assistance or services” in areas of armed conflict prior to the coming into operation of this Bill.

25. AMENDMENTS BY PCOD • Deletion of the exclusion of “liberation struggles, self determination, independence against colonialism” etc from the definition of “assistance or services”. • The Bill now specifically excludes the activities of the Security Services contemplated in section 199 of the Const from the provisions of the Bill.

26. AMENDMENTS BY PCOD • Regulation of humanitarian assistance is now limited to SA organisation. • All SA humanitarian organisations have to be registered with the NCACC for this purpose. • This addresses the concerns raised by ICRC and other international humanitarian organisation.

27. AMENDMENTS BY PCOD • The PCOD insisted on inserting a provision on right to reasons in terms of PAJA. • The Bill was amended to give our courts extra-territorial reach with regard to mercenary activities committed against the Republic irrespective of where such acts were committed. • With regard to the rest of other offences the jurisdiction of our courts is limited to the territory of the Republic and its citizens, residents, companies registered in the Republic and foreigners who use the territory of the Republic.

28. AMENDMENTS BY PCOD • Transitional provisions were broadened to include assistance or service that did not constitute an offence under the RFMA. • The citation of the Bill was shortened to read Prohibition of Mercenary Activities and Regulation of Certain Assistance in a Country of Armed Conflict, 2006

29. CONCLUSION • Notwithstanding the amendments the following challenges may persist: • Gathering of evidence: closed community • Trans-border policing: offences are often carried outside the borders of RSA • Reluctance to prosecute: Plea bargains. • Notwithstanding the amendments the challenge still lies with the implementation of the Act, more especially, policing and prosecution.