A/HRC/21/43 A. Three models of national legislation: South Africa, United States and Switzerland 27. As noted above, the Working Group began its work on national legislation by analysing the national legislation of South Africa and the United States relating to private military and security companies and the above-mentioned Swiss draft law. This legislation reflects distinct approaches to the regulation of private military and security companies. South Africa, which was one of the first countries to seek to regulate such companies, severely limits the export of military services, whereas the United States and Switzerland take far less restrictive positions. Even between the United States and Switzerland, however, approaches vary. United States legislation is focused mainly on strengthening accountability for crimes committed by contractors overseas, while the Swiss draft law places greater emphasis on building a regulatory process for private military and security companies. 28. The Working Group is conscious that, whereas the national legislation of South Africa and the United States has been adopted, the Swiss legislation remains in the drafting process, and the Working Group looks forward to its adoption. 1. South Africa 29. South Africa was one of the first countries to adopt legislation regulating private 3 military and security companies. That legislation is founded on section 198 (b) of the country’s Constitution, which states that the resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in terms of the Constitution or national legislation. The legislation covering private military and security companies comprises the Regulation of Foreign 4 Military Assistance Act (No. 15 of 1998) and the Prohibition of Mercenary Activities and 5 Regulation of Certain Activities in Country of Armed Conflict Act (No. 27 of 2006). 30. To address the growing numbers of South Africans with military skills and experience offering their services abroad in the post-apartheid era, South Africa enacted the Regulation of Foreign Military Assistance Act in 1998. The Act covers both mercenary activities and private military and security companies. Mercenary activity, defined as “direct participation as a combatant in armed conflict for private gain”, is forbidden, as is the recruitment, use, financing or training of mercenaries. The Act addresses private military and security companies through its regulation of the provision of foreign military assistance. Foreign military assistance is broadly defined to include military assistance to a party to an armed conflict (e.g. advice or training; personnel, financial, logistical, intelligence or operational support; personnel recruitment; medical or paramedical services; or procurement of equipment) in addition to security services (e.g. protection of individuals or property involved in armed conflict). Any action aimed at overthrowing a Government or undermining the constitutional order, sovereignty or territorial integrity of a State and other actions that further the military interests of a party to the armed conflict also form part of foreign military assistance. 31. Under section 4 of the Act, any person or company seeking to provide foreign military assistance is required to obtain authorization from the National Conventional Arms Control Committee, a Cabinet committee comprising eight ministers and three deputy 3 4 5 8 A/HRC/18/32/Add.3, para. 20. Available at www.info.gov.za/view/DownloadFileAction?id=70672. Available at www.info.gov.za/view/DownloadFileAction?id=75729.