The prohibition of mercenarism and the prohibition and regulation of private security and military services in areas of armed conflict with specific reference to South Africa : 1994–2007

Abstract

This thesis focuses on South African policy initiatives and legislation to counter mercenary activities and to regulate private military companies (PMCs) and private security companies (PSCs) in areas of armed conflict between 1994 and 2007. It investigates the objectives of the new policies of the South African government, as reflected currently in the Regulation of Foreign Military Assistance Act (No.15 of 1998), and subsequently in the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act (No.27 of 2006), hereafter referred to as the “new Act”. The main focus of the thesis is the Prohibition of Mercenary Activities and Prohibition and Regulation of Certain Activities in Areas of Armed Conflict Bill (B42 - 2005), [the “Bill”], which was the centrepiece of debate when the Portfolio Committee on Defence held public hearings in Parliament. The thesis examines the forms of warfare that have emerged in the post-Cold War era and the designation of conflict zones. It develops a conceptual framework of mercenary activities and the privatisation of security, violence and warfare. Definitions of mercenaries, PMCs and PSCs are provided and international and regional Conventions and Protocols relating to mercenarism are explained. Attempts by the United States of America, the United Kingdom and Australia to regulate PMCs and PSCs, highlighting differences in strategic approaches are discussed. The nature of the problem in South Africa is specifically addressed and an overview of selected South African-related mercenary and PMC and PSC activities, particularly in Africa and the Middle East, is provided. South African government responses to these activities after 1994; official policy statements regarding mercenaries, PMCs and PSCs, and the current Act are critically analysed. The thesis examines the 2005 Bill and the public responses of political parties; organisations in civil society, and the representative of the UK government in South Africa to the proposed legislation. It analyses the amendments approved by Parliament in respect of the Bill and compares the new Act with the current Act. The degree to which it is reasonable and defensible to introduce limitations to the constitutionally-entrenched economic rights of private enterprises as the South African government develops its anti-mercenary policy and executes its power to regulate PMCs and PSCs is also assessed. Finally, the key findings are summarised and the assumptions underlying the research evaluated.