SOUTH AFRICA: The downside of banning mercenaries

South Africa's sweeping legislation to outlaw mercenary activities might also hamper the country's peacekeeping efforts and affect non-governmental and aid organisations while targeting private military/security companies (PMCs).

"The South Africa legislation is very innovative," said Andrew Carswell, the regional armed forces and security delegate from the International Committee of the Red Cross at a seminar on the act at the Institute for Security Studies (ISS) in Pretoria. "It is the first of its type in the world."

But some analysts are concerned that the scope of the law scope is too broad and could potentially be at odds with South African foreign policy.

The Prohibition of Mercenary Activities in Country of Armed Conflict Act No. 27 of 2006 completely prohibits "any person who participates as a combatant for gain in an armed conflict" or "any person who directly or indirectly recruits, uses, trains, supports or finances a combatant for private gain in an armed conflict," and applies to all South African citizens and residents.

The second definition is likely to apply to PMCs, several of which are currently working under contract in Iraq and also providing services to South African peacekeeping missions.

Sabelo Gumedze, a senior researcher with the Defence Sector Programme, an initiative by the ISS to strengthen democracy and good governance in the defence sector in Africa, said one estimate put as many as 4,000 South African citizens in Iraq for purposes related to the war there. Since the US-led invasion of Iraq in 2003, 23 South Africans working for PMCs have died in the war.

Although the act was signed by President Thabo Mbeki in November 2007, the regulatory mechanisms are still in the process of being established. It expected to be promulgated by the government and come into force later this year or
2009.

The law will require South African organisations and individuals who want to enter a country where an armed conflict is taking place to apply for authorisation from the National Conventional Arms Control Committee (NCACC), a body established in 1995 by cabinet to ensure that dealings in the arms trade conform to internationally accepted practices.

The NCACC will ensure that those entering such a country are not enlisting in a foreign army, negotiating or offering assistance in an armed conflict, providing any assistance or rendering any service to a party in an armed conflict; recruiting, using training, supporting or financing a person to provide or render any service to a party to an armed conflict, or performing any other act that has the result of furthering the military interests of a party to an armed conflict.

South African humanitarian groups will also have to register with NCACC before providing humanitarian assistance.

Gumedze said the act was also extra-territorial, meaning that the law would follow citizens and residents who were not necessarily departing from South Africa for a conflict. The act might also apply to the citizens of other countries who were in known violation of the law and travelled to South Africa.

"The act is likely to push the industry underground," said Gumedze, who also thought people might change citizenship to avoid prosecution.

Foreign policy concerns

The end of the Cold War saw a global downsizing of national armed forces, yet global violence increased, mainly in a proliferation of smaller conflicts.

National armies began to seek peripheral assistance and, with an estimated seven million former soldiers in domestic job markets, the private military and security business exploded. PMCs now provide a wide array of services to militaries across the world, from tactical assistance to intelligence gathering and maintenance.

Lindy Heinecken, a military sociologist at the University of Stellenbosch, South Africa, said the military's increasing reliance on PMCs was useful, in the sense that militaries were no longer able to be complete providers of services for themselves, but the potential problems were becoming evident.

"The profession has lost control over its monopoly of knowledge," said Heinecken, because private consultants were being used to train military personnel in the arts of warfare. "There is a lack of regulation for these private firms," she said, "and private firms are overtaking national forces in terms of use" in the growing number of localised conflicts all over the world.

An IRIN report in March 2008, detailing recruitment efforts in Namibia, stated that PMCs were increasingly looking to recruit in developing countries, where many residents have military experience. The new South African act evolved from the 1998 Foreign Military Assistance Act, which attempted to control former military personnel who had served under the apartheid government.

Michelle Small, an international studies researcher at the Johannesburg campus of Australia's Monash University, said the act might restrict PMCs to such an extent that even potentially useful operations would be ruled out.

"Is the act a case of South Africa shooting itself in the foot when it comes to foreign policy?" she asked at an ISS meeting. "They [PMCs] can play a key stabilisation role. Regulation is necessary, but the act removes the potential of PMCs as tools of foreign policy."

Small said a hypothetical example would be the recent xenophobic attacks in South Africa and migration from neighbouring Zimbabwe. While the police and army were dealing with containing the violence, PMCs might be used to establish border controls, set up camps where the foreign nationals displaced by the attacks could temporarily be housed, and safeguarding areas with large numbers of foreigners.

"No matter how useful they might be, in my view, the act is putting an end to that," said Gumedze.

"There needs to be a lot more debate and critical thinking about this," said Heinecken. "I think the government has different reasons, political and other, to restrict private military activity."