South Africa had an obligation to oversee and regulate the thousands of militarily-qualified citizens selling their skills abroad, Parliament’s Defence Portfolio Committee heard on Tuesday.
”If you keep dangerous animals in your yard, you have responsibility to ensure they don’t get out and harm people,” Defence Department official Siviwe Njikela told committee members.
He said an estimated 5 000-plus South Africans were working in Iraq ”doing Lord knows what”.
”If we have that kind of a population in Iraq, isn’t it rather curious that we have no idea what they are doing there? The South African government should know — that is the principle — without infringing on their right to earn a living and practice their profession.”
Acting committee chairperson Oupa Monareng said a previous submission on the topic had put the number of South Africans doing such work in Iraq and other countries at about 20 000.
The Department of Foreign Affairs, however, has put the number at about 4 000.
The fact that there were such diverging figures ”only goes to show that this country has a problem, because it cannot account for its citizens”, he said.
South African Police Service legal expert Philip Jacobs said the country needed stronger anti-mercenary regulation. Even the United Nations has realised that existing instruments did not go far enough.
The current Foreign Military Assistance Act has not yielded a single ”full-out” prosecution since 1999, he said.
Some cases had been finalised through plea bargains, ”so we cannot say there have been no convictions, but in terms of real prosecutions there are problems”.
The Act was more symbolic than a realistic deterrent, said Jacobs.
”Companies simply do not apply [for registration].”
Jacobs underscored problems in distinguishing between private military companies (PMCs) and private security companies (PSCs), and now also a third, growing, category of private logistical companies.
PMCs were typically employed by governments in combat, while PSCs were usually hired by companies to secure persons or property. PSC employees were usually unarmed.
Some companies showed characteristics of both, said Jacobs.
”The distinction is spurious at best.
”What we have seen is staff of private security companies being issued [on their arrival in a foreign country] with AK47s, machine pistols and combat vests.”
Said Njikela: ”There is a very fine line which is very often crossed”.
”Conceptually it is easy to distinguish but if you place these two organisations [PMCs and PSCs] in an area of conflict, there is a very fine line and in most instances an organisation claiming to be doing defensive work might find itself on the offensive.”
He stressed the importance of adequate regulation to enable the government to keep a record of functions a company or individual was authorised to perform.
”And if we get a feeling you are no longer doing that, we know where to find you and who you are.”
This might also benefit the industry itself, suggested Njikela.
In the case of South Africans arrested in the Democratic Republic of Congo recently, having proof that they were licensed to do genuine security work might have helped.
”If they had the authorisation to do that, wouldn’t that have made their life in the DRC easier? It would also have given them the advantage of being able to rely on the South African government for assistance.”
The two men conceded the draft Prohibition of Mercenary Activities and Prohibition and Regulation of Certain Activities in Areas of Armed Conflict Bill, currently under discussion, might have unintended consequences.
These included criminalising and hampering humanitarian work.
In this regard, the draft law’s intention was really to prevent South Africans doing mercenary work under the guise of providing humanitarian assistance, the men said.
”I do not think it was at any stage the intention to regulate organisations like the Red Cross,” said Njikela.
One solution, proposed Jacobs, was to have a list of internationally recognised humanitarian organisations exempted from the Bill’s provisions, and granting authorisation to local bodies ”in respect of specific events”.
Another result of the Bill was to allow South Africans to enlist in foreign armies, but prevent them from being deployed.
The Bill should be changed to either disallow foreign enlistment entirely, or by stating that permission granted to enlist did not lapse with deployment.
Registration of security companies was desirable, Jacobs said, for more transparency.
”And when it comes to prosecution, we have as a point of departure what the company was supposed to do [as per its registration] and what it actually did.”
The Bill could be enforced and policed, provided provisions were clarified as to what constituted an area of conflict, and what exactly mercenary activities entailed, he added. – Sapa