EELIMINATIONLIMINATION OOFF MMERCENARISMERCENARISM ININ AFRICAAFRICA A NEED FOR A NEW CONTINENTAL APPROACH EDITED BY SABELO GUMEDZE ISS MONOGRAPH SERIES • No 147, JULY 2008 CONTENTS FOREWORD iii ABOUT THE AUTHORS v PART I: INTRODUCTION 1 The elimination of mercenarism and regulation of the private security industry in Africa 3 Sabelo Gumedze PART II: THE NATURE OF THE DEBATE AROUND MERCENARIES AND PRIVATE MILITARY/SECURITY COMPANIES IN AFRICA 19 CHAPTER 1 21 Pouring old wine into new bottles? The debate around mercenaries and private military and security companies Sabelo Gumedze CHAPTER 2 45 ‘African mercenarism’ Mpako Foaleng PART III: THE EXTENT OF MERCENARISM AND ITS IMPACT ON HUMAN SECURITY AND HUMAN RIGHTS 73 CHAPTER 3 75 ‘One man’s volunteer is another man’s mercenary?’ Mapping the extent and impact of mercenarism on human security in Africa Sabelo Ndlovu-Gatsheni and Gwinyayi A Dzinesa ii Elimination of Mercenarism in Africa: A Need for a New Continental Approach PART IV: THE ROLE OF THE LEGITIMATE PRIVATE SECURITY SECTOR VIS-À-VIS MERCENARISM IN AFRICA 99 CHAPTER 4 101 Counting the cost: the impact of corporate warfare on the human rights of women and children in Africa Cephas Lumina PART V: COMBATING MERCENARISM IN AFRICA AT THE DOMESTIC, REGIONAL AND INTERNATIONAL LEVELS 121 CHAPTER 5 123 Good, the bad, and the unregulated. Banning mercenarism and regulating private security activity in Africa Sabrina Schulz PAST VI: TOWARDS AN EFFECTIVE REGULATORY FRAMEWORK FOR ADDRESSING THE PRIVATE SECURITY SECTOR 143 AND MERCENARISM IN AFRICA CHAPTER 6 145 Working towards effective legislative and regulatory solutions for the private security industry in Africa J. J. Messner CHAPTER 7 179 Status and obligations of mercenaries and private military/ security companies under international humanitarian law Jamie A Williamson CHAPTER 8 197 Mercenarism: looking beyond the current international and regional normative regimes Laurence Juma iii FOREWORD The Institute for Security Studies (ISS) is a think-tank research institute whose mission is to conceptualise, inform and enhance the debate on human security in Africa in order to support policy formulation and decision making at every level towards the enhancement of human security for all in Africa. The ISS undertakes independent research and, where possible, works collaboratively with and through national, subregional and regional organisations. In the past, the ISS has undertaken major research work in the field of privatisation of security, which has been critical in influencing policy-making processes in the African continent. As early as 1999, the ISS published a monograph entitled Peace, profit or plunder? The privatisation of security in war-torn African societies, which had been edited by Jakkie Cilliers and Peggy Mason (now out of print). In 2007, the ISS published a monograph entitled Private security in Africa: manifestation, challenges and regulation, edited by Sabelo Gumedze, and in the same year, volume 16 (no 4) of the ISS African Security Review, edited by Dean-Peter Baker, focused on the privatisation of security, too. Another monograph entitled Private security sector in Africa: country series, which was edited by Sabelo Gumedze, was published by the ISS in 2008 and highlighted the privatisation of security in three African countries, namely South Africa, the Democratic Republic of Congo and Uganda. All these publications are available at the ISS’s website, www.issafrica.org. The 2007 monograph laid a foundation for the current monograph, Elimination of mercenarism in Africa: a need for a new continental approach, which mainly focuses on the elimination of mercenarism in Africa (the darker side of the private security industry). The aim of this monograph is to inform the revision process of the 1977 OAU/AU Convention on the Elimination of Mercenarism in Africa. In this monograph a strong argument is made for the need for a new continental approach to deal with the new modalities of traditional mercenarism, which involve an emerging and flourishing industry comprised of private military and security companies. The further aim of the recent ISS research work on privatisation of security is to inform the drafting of a pro forma regulatory framework for the private security sector in Africa at national and regional levels. iv Elimination of Mercenarism in Africa: A Need for a New Continental Approach The purpose of the pro forma legislation is to serve as a guide in the process of formulation of an effective framework at national and regional levels. In the final analysis, it is hoped that the ISS work on the subject of the privatisation of security will bring about a better understanding of the role of the private security sector in peacekeeping and in state and corporate security in Africa, based on field research and country case studies; give momentum to an appropriate regulatory regime for private military sector engagement in Africa, including the elimination of mercenary activity and the revision of the OAU/AU Mercenary Convention; and give momentum to and make inputs on the development of appropriate legislative and regulatory frameworks for the regulation of private security companies in Africa countries. The chapters in this monograph are based on papers presented by experts from various fields and disciplines during a conference hosted by the ISS on the regulation of the private security sector in Africa, which was held from 5 to 6 March 2008 at the African Union Headquarters in Addis Ababa, Ethiopia. It would not have been possible to successfully publish this well-researched and informative monograph without the generous support of the ISS project funders, namely the International Development Research Council (IDRC) and United Nations University (UNU). The Security Sector Governance Programme (then Defence Sector Programme) staff contributed immensely to the final product. I would like to thank the SSG staff under the leadership of Dr Naison Ngoma, and particularly Lauren Hutton and Job Hlongwa. Special thanks goes to the Pretoria office director, Major-General (Rtd) Len le Roux, who was the project leader, and Nadia Ahmadou (a former SSG intern who is now working for the African Security Analysis Programme of the ISS). My sincere appreciation to the ISS’s publications coordinator, Dorette de Jager, for her tenacity in ensuring an excellent final product. Special thanks also go to the Director, Conference Services, of the African Union, Nedjat Khellaf, who facilitated the hosting of the Conference on the Elimination of Mercenarism in Africa at which the contents of this monograph were deliberated upon. My heartfelt appreciation to all the contributors who agreed to write on this complex yet important subject for Africa. This monograph would not have come to fruition without their sacrifice and partnership with the ISS in this important venture. The aim of all the contributions in this monograph is to ensure that the African continent becomes peaceful and secured, an extremely important condition for Africa’s development. The editor Pretoria, July 2008 v ABOUT THE AUTHORS Mr Sabelo Gumedze is a Senior Researcher in the Security Sector Governance Programme at the Institute for Security Studies, Pretoria, South Africa. Dr Mpako Foaleng is an Advocate with Refugees International, Washington, DC, United States of America. Dr Sabelo Ndlovu-Gatsheni is a Lecturer in African Studies at the Ferguson Centre for African and Asian Studies at The Open University, Milton Keynes, United Kingdom. Dr Gwinyayi A Dzinesa is a Lecturer in the Department of International Relations at the University of the Witwatersrand, Johannesburg, South Africa. Dr Cephas Lumina is a Senior Lecturer at the Faculty of Law, University of KwaZulu-Natal, Durban, South Africa and Independent Expert of the United Nations Human Rights Council on the effects of foreign debt & other related financial obligations of States on the full enjoyment of human rights, particularly economic, social & cultural rights. Dr Sabrina Schulz is a Director of Policy at the British Association of Private Security, London, United Kingdom. Mr J J Messner is a Director of Programs and Operations at the International Peace Operations Association, Washington, DC, United States of America. Mr Jamie Williamson is a Regional Legal Advisor of the International Committee of the Red Cross. Mr Laurence Juma is a Senior Lecturer in the Faculty of Law, Fort Hare University, East London, South Africa. PART I IINTRODUCTIONNTRODUCTION INTRODUCTION THE ELIMINATION OF MERCENARISM AND REGULATION OF THE PRIVATE SECURITY INDUSTRY IN AFRICA Sabelo Gumedze The General Assembly of the United Nations, at its 62nd session, adopted Resolution 62/145 on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination. The General Assembly was ‘[a]larmed and concerned at the danger that mercenaries constitute to peace and security in developing countries, in particular in Africa and in small states’ (UN General Assembly 2007). As a result of this danger, the General Assembly condemned mercenary activities in Africa because they violate human rights and impede the right of peoples to self-determination in particular. The organisation further commended African states on their collaboration in preventing such illegal actions, which have posed a threat to the integrity of and respect for the constitutional order of their countries and the exercise of the right of their peoples to self- determination. The General Assembly expressed concerns about the new modalities of mercenarism in the form of private security companies (PSCs) and private military companies (PMCs). The body noted that ‘the recruitment of former military personnel and ex-policemen by private military and private security companies to serve as “security guards” in zones of armed conflict seems to be continuing’ (UN General Assembly 2007). In this context, Africa is seen as fertile grounds for mercenary activities (in which some private security/military companies are involved). This in turn undermines further the African continent’s rare commodity of peace and security.