A/HRC/21/43
conflict and particular types of activities related to armed conflict. Their experience in
seeking to use these concepts demonstrates some of the challenges in this field.
60.
The initial legislation passed in South Africa, the Regulation of Foreign Military
Assistance Act (No. 15 of 1998), covered the provision of military assistance to a party to
an armed conflict and the provision of security services in an armed conflict. The term
“armed conflict” itself was, however, loosely defined to include any armed conflict
between the armed forces of foreign States, the armed forces of a foreign State and
dissident armed forces or other armed groups, or armed groups. This loose definition could
allow private military and security companies to avoid seeking authorization on the grounds
that a particular situation did not rise to the level of an armed conflict. As the Working
Group learned during its country visit, the loose definition has also hampered prosecutions
because of the need to present expert witnesses to testify that a given situation constituted
21
armed conflict. Another issue arising from the scope of the law is that some companies
have claimed that they are providing humanitarian services, rather than military assistance
22
or security services, and are therefore not required to obtain permission.
61.
In enacting the Prohibition of Mercenary Activities and Regulation of Certain
Activities in Country of Armed Conflict Act (No. 27 of 2006), South Africa sought to close
those loopholes by requiring permission for the rendering of military assistance or security
services to countries that have been declared “regulated” by the President on the
recommendation of the National Conventional Arms Control Committee. It also
specifically covers the rubric of humanitarian activities, the exclusion of which in the
previous law had allowed some private military and security companies to evade the
authorization process.
62.
Switzerland has taken a somewhat different approach, providing the authorities with
an indicative list of factors that may be “contrary to the aims of the law” to consider when
deciding whether to license particular activities of private military and security companies.
The authorities may, for example, consider whether a private military and security
company’s activities would take place in international or internal armed conflict, “a crisis
or conflict zone (defined as a zone in which an international or internal armed conflict
exists; a zone of internal tension or internal disorder not constituting an armed conflict; and
a zone in which human rights are systematically and seriously violated), or “a confrontation
connected with internal tension or internal disorder”. Other activities potentially contrary
to the aims of the law include providing “operational or logistic support for foreign armed
or security forces”, or services “in the field of military know-how”. The use of the inclusive
phrasing “contrary to the aims of the law” would also provide the competent authority with
the flexibility to prohibit other potentially objectionable activities of private military and
security companies.
63.
In the United States, legislative efforts to extend jurisdiction over private military
and security companies and their employees have generally referenced United States
military operations abroad and have sought to ensure that contractors involved in such
missions – even when not engaged by the Department of Defense – are covered. For
example, when extending the Military Extraterritorial Jurisdiction Act to cover nonDepartment of Defense contractors, Congress maintained a link to Department of Defense
missions, applying the law to contractors “supporting the mission of the Department of
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22
Ibid., para. 37.
Marina Caparini, “Overview of national regulatory systems for the commercial export of military and
security services: the United States and South Africa”, in Private Military/Security Companies
Operating in Situations of Armed Conflict: Proceedings of the Bruges Colloquium (19-20 October
2006), p. 61.
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