The South African Defence Review (2012) and Private Military/Security Companies (PMSCs): Heralding a Shift from Prohibition to Regulation?

This article discusses the possibility of South Africa enacting a new law regulating private military/security companies (PMSCs) beyond the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act of 2006. It argues that such a possibility arises from the policy direction expressed in the Defence Review of 2012, and the recent developments at the international level, which indicate a shift towards accommodation of PMSCs as legitimate players in the security sector. The article surveys the current state of national and international law relating to PMSCs and illustrates how the emerging shift from prohibition to regulation has affirmed the need for legislative intervention in this field. It concludes that since the future is on the side of regulation and not prohibition, legislation that furthers the policy agenda envisioned by the Defence Review 2012 may be the best tool to unlock the inhibitions of the past and create a viable climate for reframing the debate on domestic law governing private militarism in South Africa.


Introduction
The arrest in February 2013 of twenty suspected Congolese rebels, allegedly training in South Africa to overthrow Kabila's government, 1 carries potent symbolism of the vestigial gaps in South Africa's security infrastructure, even as it struggles to find its feet in the post-apartheid environment. That the rebels were found training deep in the heart of South Africa's Northern Province echoes the painful memory of a horrendous past, when the country played host to factions hostile to democratic African governments opposed to the apartheid regime. 2 It also serves as a reminder that South Africa is yet to plug the holes in its security infrastructure, that allow its target policy and backed by proper legislative framework, is urgently needed. Thus far, the indicators of a robust commitment may be sparse, but glimpses show that reform is imminent. That reform, when it arrives, will most likely take a directional shift from prohibition to regulation. The most visible indicator yet is the Defence Review of 2012, 10 which welcomes privatisation in the security industry and, in not so many words, recognises the importance of the evolving phenomenon of PMSCs and the increasing need for a regulatory framework. In this article we attempt to unravel the extent to which the political commitment as evidenced by this policy document may influence normative change, and estimate the likelihood of a paradigm shift in objectives and priorities towards dealing with private security concerns. Our focus is not on the policy document per se, but on how its policy imperatives, galvanised by the emerging shift towards regulation rather than prohibition, may affect normative development in this area.
We begin our enquiry by feeling our way towards an understanding of what PMSCs are, and isolating the reasons why regulations and are necessary. Thereafter, we examine the general deficit in South Africa 's normative infrastructure dealing with PMSCs and point out why we believe that the Defence Review 2012 enunciates a new era in the security reform agenda. We then take a comparative survey of the current state of international law relating to PMSCs and illustrate how the emerging shift from prohibition to regulation has more than affirmed the need for legislative intervention. In this regard, we interrogate whether the evolving policy framework is now setting a new agenda for legislative action concomitant with developments at the international level. We also question whether there is justification for South Africa to remain stuck in the outdated politics of mercenarism, or remain beholden to the prohibitionist mantra of the continental bodypolitik, when the prospect of a secure South Africa rests with pragmatism and targeted reforms in its security infrastructure that go in tandem with dynamic changes at the global level. In conclusion, we suggest that more effort should be directed at designing appropriate mechanisms for dealing with PMSCs than at putting PMSCs out of business. And since the future is on the side of regulation, not prohibition, legislation that furthers 10 Department of Defence 2012 www.info.gov.za (hereinafter Defence Review). the policy agenda envisioned by the Defence Review may be the best tool to unlock the inhibitions of the past and to align South Africa's security aspirations with those of the rest of the world.
There is consensus that PMSCs should be distinguished from mercenaries, even though their operations may occasionally overlap. 11 PMSCs are essentially wellorganised and registered corporations that offer private military and general security services for hire. They are supposed to be civilian organisations although their work may be difficult to categorise. Some of them offer services that are coercive in nature, such as combat, guarding and protection, interrogation and detention. 12 Whilst performing such tasks, these PMSCs are expected to follow military rules and practices, and to adopt military codes in the same manner as national armies.
Whether or not they remain civilians and should be treated as such by law has been the subject of a protracted debate. 13 On the other hand, there are PMSCs that offer non-coercive services, even though they operate within a military setting. Such 'noncoercive' services may include logistical support, weapons maintenance, sanitation, laundry services to missions, and the movement of military personnel. 14  These extra-territorial activities are often but not always on the basis of contracts with foreign governments, regimes and armed opposition groups for the provision of their services in return for profit. Since such contracts are ordinarily not subject to the laws of the home states of the PMSCs, it is difficult to use this domestic law to determine the legal validity of the ensuing legal contractual relationships, and the nature of services that should be performed in foreign countries. So even with the best intentions, home states may face considerable difficulty in regulating the activities of PMSCs.
PMSCs also hire out their services to non-state actors 15 and weak and fragile governments in transition following periods of war or political instability. 16 Regrettably, a substantial volume of PMSCs' activities is conducted through informal and discrete arrangements, facilitated by international private corporations, private military networks, arms brokers and third-party agents present in the conflict state and neighbouring states. These other 'partners' are also crucial in logistics, planning and preparation, as well as in the acquisition, transportation and deployment of materials necessary in the performance of their contractual responsibilities. 23 Section 22 of the Constitution of the Republic of South Africa, 1996 provides: "Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law. "

South Africa's response to the PMSCs problematique
Since the defeat of apartheid, genuine attempts have been made to reform the security sector while prioritising the protection of individual rights and freedoms, human security and the democratisation project. As far as privatisation in the security sector is concerned, the challenge was seen, initially, to be that of harnessing the wayward security apparatuses scuttled after the overthrow of the apartheid regime, so that they didn't portend harm to other African states. In the recent past, however, the concerns have escalated as the private players in the sector have metamorphosed into corporate organisations with transnational appeal.
However, and as we shall demonstrate in the latter part of this article, the policies and norms put in place to deal with this challenge have remained largely reactionary and tepid. The laws that have been passed thus far have tended to focus on prohibition rather than regulation, are inflexible, and are therefore unable to accommodate change in the security sector.
Before we discuss these norms in reasonable detail it may be worthwhile to give a broader overview of the policy instruments that have responded to the defence and security needs of South Africa as it sought to consolidate its democracy and entrench its hold on continental power politics. In the period following the 1994 democratic elections the government adopted two important policy documents that defined its future security reform agenda: the 1996 White Paper on Defence 24 and the 1999 White Paper on Defence Related Industries. 25 These two policy instruments cover considerable ground but with minimal differences mainly dictated by their temporal contexts. Presumably, and generally speaking, the 1996 White Paper was aimed at dismantling the apartheid system, while the 1999 one was an attempt to build an authentic security infrastructure that was consistent with South Africa's emerging role as a continental leader. Given the limited space, we shall attempt to set out only some generalities in the reform trajectory expressed by these two papers that are relevant to our subject. Primarily, both instruments adopt a very 24 See White Paper on National Defence for the Republic of South Africa (1996). 25 See White Paper on South Africa Defence Related Industries (1999). wide interpretation of national security that includes aspirations for democratic consolidation, social justice, economic development, human rights, and even political stability. They also put great emphasis on the reform of public institutions, mainly the South African Defence Forces (SADF). They are couched in transformative lingo, but with scant details on how their objectives are to be achieved. Hidden in the details are their affirmation of the role of international law in dealing with security issues. This has had a critical importance to security reform because it indicated, from the very beginning, the willingness of the new South Africa to be bound by international treaties and Conventions. Obviously, therefore, the policy imperatives embodied in the two papers paved the way for the domestication of international standards in South Africa.
Notwithstanding the broader focus of these policies, their key objective remained "the political transition from apartheid to a democratic South Africa and the concomitant integration of diverse statutory and non-statutory armed forces into a single Defence Force." 26 A key factor in this transitional agenda was thought to be the demobilization and rationalization of the defence forces. Although these processes were to be carried out in accordance with the principles of fair labour practices, transparency, equality, and with due regard to the need to retain expert personnel, they effectively reduced the number of trained white military personnel in the force. No wonder a great number of qualified white personnel were rendered jobless or voluntarily left the force. Many of such personnel later provided a pool of expert military labour that fueled the growth of the private military and security industry in South Africa. Thus, although the two policies did not mention mercenaries or private security organizations, the processes which they engendered directly resulted in the proliferation of such entities. A mercenary outfit such as the defunct Executive Outcomes that was involved in the Sierra Leone conflict was formed by ex-SADF soldiers. 27   Clearly, contemporary developments in the global security landscape necessitate a constant review of policies and normative frameworks relating to PMSCs. Thus, domestic law and policy can have meaningful impact when aligned to evolving trends. It is for this reason that we suggest in this paper that South Africa must consider enacting law regarding security to keep up with the momentum of change.
The policy instruments we mentioned earlier predate the critical developments in defence and private military security and cannot move South Africa forward as it seeks to assert its role as a major player in continental security affairs. The shift from the familiar mould of prohibition to the more progressive path of regulation that is evident in the Defence Review 2012 is thus to be welcomed. Before we examine how the policy imperatives in this new document may impact on the 28 See Kinsey Corporate Soldiers 5. 29 OAU Convention for the Elimination of Mercenaries in Africa (1972). For a discussion of the shortcomings of the Convention, see Abrahams "Contemporary Legal Environment" 81. evolution of norms, it might be useful to survey existing normative terrain and identify some of the shortcomings that legitimise the call for a revised approach.

Activities in Country of Armed Conflict Act
Currently the major domestic piece of legislation dealing with mercenaries and private security companies is the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act (the Mercenary Act). 30 The Act was signed into law by President Thabo Mbeki in November 2007. 31 It embodies what we characterise as South Africa's prohibitionist approach to private security.
Among other objectives, this Act seeks to "prohibit mercenary activity; to regulate the provision of assistance or service of a military or military-related nature in a country of armed conflict; to regulate the enlistment of South African citizens or permanent residents in other armed forces; to regulate the provision of humanitarian aid in a country of armed conflict; to provide for extra-territorial jurisdiction for the courts of the Republic with regard to certain offences; to provide for offences and penalties". 32 From these objectives, the Act constructs a twopronged prohibitionist framework. First, it criminalises all acts that are deemed mercenary in nature. 33 These acts include the "direct or indirect recruitment, use, training or support of combatants in armed conflicts." It also prohibits the negotiating or offering assistance (including rendering service) to an armed conflict or regulated country; providing any assistance or rendering any service to a party to an armed conflict or regulated area; recruiting, using, training, supporting or financing a person to provide or render any service to a party to an armed conflict or regulated area; and performing any other act that has the result of furthering the military interests of a party to an armed conflict or in a "regulated country". 34 Interestingly, and in furtherance of its prohibitionist posture, the Act adopts some of the elements of definition of a mercenary found in regional and international instruments such as the "object of private gain; the participation, directly or indirectly in acts aimed at furthering armed conflicts; instigating or supporting rebellion against legitimate governments, coup d'etat and the undermining of constitutional order, sovereignty and territorial integrity of states". 35 Secondly, it seeks to exercise control over persons or companies or individuals that may legitimately engage in such activities abroad by establishing a licensing process. In general terms, however, the legal framework created by this Act is more prohibitive than regulative; it harshly frowns upon private military securitisation and mercenarism. Such a hostile approach to the private military industry in South Africa might have been justified by general suspicion and distrust of these entities in Africa at the time this law was promulgated. But times have changed and many of the challenges that South Africa faces also create opportunities that must be urgently seized by the government. South Africa needs to overcome its ambivalence to market-oriented approaches to security and deal with the smugness and lassitude inherent in its security reform agenda. Apartheid and the struggles to overcome it may have created apathy towards neo-liberal tendencies, but the reality of global security and the economic opportunities that privatisation in the sector presents have made it inevitable for the independent South Africa to shift its policy. In our view, the shift has become evident in the recently promulgated Defence Review of 2012. The question, however, is how this indicator may nudge normative development towards embracing the liberal trends in private security regulation.
Moreover, the fact that the document is merely a draft inevitably triggers debate on whether the final policy document will accommodate the imperatives of global change in private security regulation.

Draft South African Defence Review (2012)
As already said, the government produced two policies before 2012, the 1996 White

Changes in the global arena
In this section we examine international developments that signify a change of attitude towards the privatisation of security and the willingness to accommodate regulation rather than prohibition. We posit three trends that manifest this change.
The first encapsulates the efforts within the United Nations to develop a multilateral treaty specifically dealing with PMSCs, while maintaining the legitimacy of the antimercenary laws. These efforts are mainly resident within the UN Working Group on Secondly, change patterns are explicit in the plethora of soft-law instruments crafted through collaborative efforts of governments and regional power blocks as well as leading stakeholders in the private security industries. We single out for discussion the Montreux Document, 44 produced in 2008 and largely regarded as a template for acceptable practices in engaging and monitoring the services of PMSCs. 45 Thirdly, the ascendancy of self-regulatory frameworks into mainstream discourse on PMSC regulation cannot be ignored. Regional and national associations formed by PMSCs have developed codes of conduct that govern the activities of their members. In as much as these codes were initially meant to steer the discourse away from the dreaded subject of mercenarism and cushion the industry against regulatory overreach, they provide the moral tenor that has galvanised the evolving shift in perceptions and attitudes towards PMSCs. In fact, it is through these associations that we have witnessed the strongest claims to the differentiation which exists between mercenarism and PMSCs. It may be worthwhile to mention that the trends above do not complement each other: they exist in separate worlds despite targeting similar problems. And that, all along, has been the main inhibitor to the establishment an international regime for the regulation of PMSCs. The UN Working Group process eschews the self-regulatory mechanisms and views them as being sympathetic to camouflaged forms of mercenarism. 46 On the other hand, proponents of the Montreux Document are equally ambivalent to the Working Group process and its efforts to establish a binding multilateral framework for PMSCs. For our purpose, however, these trends illustrate the shift in thinking around PMSC regulation and may very well provide ample lessons for developing domestic policy and law. Let us examine in a more substantive way how these trends play out in the context of normative change regarding PMSCs.

Normative developments prior to 2005
Few may dispute the fact that normative development at the international level is slow and often belated. Likewise, the values which spur normative change take time to garner enough probity among the divergent political constituencies that make up the international community. This explains why international treaties have a long gestation period. The challenges of building consensus are numerous, as is the complexity of generating an acceptable normative framework even on subjects that are not disputed. As far as security goes, the wheels turn even slower. When the United Nations adopted the International Convention against the Recruitment, Use, among States, which imposed on states the "duty to refrain from organising armed groups, including mercenaries, for incursion into the territory of another state". 51 These developments were consistent with the prevailing ideology of prohibition and helped shape the norms that evolved thereafter.
By adopting the Convention, the international community made a statement about values which they considered important to their co-operative project of maintaining international peace and security. Given that mercenary activities were regarded as forms of violence and a threat to international peace and security, the Convention was seen to fulfil an important international function. Its scheme effectively outlawed such activities and enjoined states to ensure that their territories were not used to perpetrate any acts of its kind. 52  The Convention's prohibitionist approach was undoubtedly a spirited reaction to the ambivalence towards privatisation in the security sector that was prevalent at the time. Indeed, the threat that mercenarism and other private security or military outfits were seen to pose to the universal values of peace had for a long time appeared genuine and understandable. However, significant changes in the international normative order, which have occurred in the past decade, seem to indicate that the value system is also changing. Evidently, the international community is gradually accommodating the changes brought about by globalisation and the free market in its approach to maintaining international peace and security.
Concomitant with these changes has been the community's growing affinity to security options and methods of deployment that are less hostile or ambivalent to private actors. Powerful nations as well as regional organisations have ratcheted up which denied the benefit of prisoner of war status to mercenaries. This article crafted the first definition of mercenary that was adopted in all subsequent regional and international treaties. Furthermore, none of these laws have clear definitions of who a mercenary is, and they are completely opaque to the corporate organisational structure that private entities have assumed in the recent past. Thus, they are unhelpful when it comes to dealing with PMSCs. These drawbacks, complemented by the proliferation of PMSCs all across the globe, more than underscore the need for new regulatory frameworks. 62 Let us now examine how the international community has responded to this need, by analysing the trends that we mentioned earlier.

Monitoring of Private Military and Security Companies
As reliable information of "grave and systematic violations" of the Convention. 67 In addition, it establishes an individual or group complaint procedure similar to those in human rights treaties. 68 At the centre of its regulatory scheme are states. They are required to take "legislative, administrative and other measures as may be necessary to ensure that PMSCs and their personnel are held accountable for violations of applicable national and international law". 69 Further, a state is enjoined to "establish comprehensive domestic regimes for regulation and oversight over activities in its territory of PMSCs and their personnel, in order to prohibit and investigate illegal activities as defined by this Convention as well as by relevant national law". 70 This obviously has implications for states such as South Africa that are still holding to the prohibitionist approach, calling on them to switch gears and begin to accommodate PMSCs in their policy and legislative responses to security concerns.
The other aspect that might be of interest is the fact that whereas the draft law affirms the commitment of the international community to the UN Mercenary Convention in the Preamble, its approach to PMSCs regulation belies such a commitment. This is revealed by the manner in which it deals with activities that would ordinarily be mercenary in nature if performed by private entities and not the state. 71 These activities are described as "unlawful activities" and not mercenary acts. 72 In fact, the word mercenary is avoided completely. Even where the Draft Convention expressly prohibits the use of force by PMSCs to overthrow governments or to violate state sovereignty, 73 an act which for a long time has been the hallmark of mercenary involvement in Africa, no reference is made to the existing prohibition frameworks. The only plausible explanation is that the drafters intended to subtly embrace the distinction that state practice has drawn between mercenaries and PMSCs. And by doing so, the drafters may have hoped to convey the message that the prohibitionist approaches of yesteryears weren't obsolete but remain directed at mercenaries and not PMSCs. The difficulty here is that an entity that commits these wrongful acts is still classified as a PMSC and not a mercenary, thus blurring the distinction. Moreover, the upshot of this approach is to diminish the relevance of "mercenary" as a term in security discourse.
There is no doubt that the UN efforts to establish a binding international framework should be supported. Moreover, considering that the involvement of PMSCs in international duties, such as peacekeeping, is set to increase rather than decrease, the preference for a binding multilateral regime cannot be overstated. 74 Therefore, even as we advocate for national laws we are conscious that a domestic regime can be most effective if it is based on international standards. Moreover, most PMSCs are transnational organisations and their operations span the globe. Because of this spread and the fact that they may forge different kinds of relationships with states, fragmented approaches to their regulation inevitably lessen accountability and diminish the effect of law. For example, it may be difficult at times to ascertain the difference between a "sending state" and a "host state" for the purposes of apportioning responsibility. 75 Also, regulations in one state cannot constrain PMSC operations in another state. These apart, the PMSC phenomenon feeds into the perennial problem of establishing accountability for multinational corporations under international law. The dominance of multinational corporations in our present world is indisputable. But their operations do not always yield benefits, and accountability remains a problem. Some organisations see this as a problem that requires international normative intervention. The UNDP, for example, has suggested that accountability may be established if multinationals are brought "within the framework of global governance, not just a patchwork of national law rules or regulations". 76 We accept this broad analysis but doubt if it can deliver on enforcement. So, while we agree that to fully regulate PMSCs an international framework should be in place, domestic mechanism are still needed to complement it and give it the necessary enforcement edge. This is recognised by the Draft Convention, which enjoins states to pass domestic law that confers the jurisdiction to oversee the operations of PMSCs taking place within their territories on national structures. 77 Moreover, failure to enact a domestic law creates an accountability gap that will only allow for impunity to go unpunished.

Military and Security Companies during Armed Conflict
The Montreux Document represents one of the most significant efforts to establish a non-binding but widely respected regime for the regulation of PMSCs The Document is not a binding instrument but a mere statement of recommendations meant to bolster the state's ability to control PMSCs activity. From an ideological standpoint the Document was a major triumph for PMSCs because it signalled the international community's acceptance of private security operatives as legitimate players in the context of an armed conflict. For this reason PMSC organisations have been quick to welcome it. They have predicted that the Document will form the basis for developing an industry-wide code of conduct that will have a wider application than the existing self-regulatory mechanisms. 79 The Document has two parts. The first part contains 27 obligations that states have to assume with regards to their regulation of PMSCs. These obligations generally 77 Article 4(5) of the Draft Convention. require that states ensure PMSCs' compliance with international law. They are therefore enjoined to enact appropriate legislations that are in conformity with international instruments; to create methods of enforcement of the law so enacted, including the investigation and prosecution of offenders; to ensure respect for international law; and to take responsibility for the activities of PMSCs they contract, including the readiness to provide reparations whenever necessary to parties who suffer as a result of PMSC activity.
The second part contains what is referred to as good practices and is meant to "provide guidance and assistance to states in ensuring respect for international humanitarian law and human rights law" and to promote responsible conduct in states' relationship with PMCs operating in their territories. There are 73 good practises listed. 80 But in all these, the prime responsibility rests with states. As far as contracting states are concerned, their responsibility for violations of humanitarian or human rights law by PMSCs will arise where the PMSC is incorporated in the regular armed force; where the PMSC is under the command of the state; where it is empowered to exercise elements of governmental authority, or to perform functions "normally" conducted by organs of state; and where the PMSC is acting under the instructions of the state. 81 It is understandable that the drafters of the Document intended to clarify the confusion around state responsibility, but the manner in which the obligations are crafted may indeed be the greatest weakness of the instrument.
Leaving responsibility on the shoulders of states may be counter-productive. For example, states with weaker legislations or those who delay in enacting appropriate laws will not be able to fully participate in the framework created by the Document.
The result will be that PMSCs will move to such states to avoid strict oversight. Other states may have an interest in shielding PMSCs from public oversight because they perform sensitive duties. They may therefore enact laws that give immunity or restrict the disclosure of information to the public.

Self-regulation
Concomitant with the recent normative developments both at the United Nations and within the various formations working towards creating regulatory standards for PMSCs are the efforts by the industry to rid itself of the label of mercenarism and construct a new businesslike image for itself. Underlying these efforts is the considerable influence that the industry has been able to exert on policy formulation with regard to military activity in conflict zones. Part of their strength lie in their international presence 82 and the fact that they find unrivalled favour with powerful governments in the north. 83 But the industry has proceeded cautiously, first by recognising the validity of the misgivings about the conduct of its members and secondly, by proclaiming its willingness to enforce accountability through in-house procedures (self-regulation). Indeed, the message seems to be that self-regulation is possible because they are transparent, legal and have the capacity to regulate themselves. It is no secret that the main driving force is the desire to keep statedirected regulatory and oversight schemes at a minimum. PMSCs are no different from other business entities in this regard. Most self-regulatory systems are born out of the need to pre-empt government regulations -what has been referred to as the "shadow hierarchy" argument. 84 The bad publicity the PMSC industry got in Iraq, Afghanistan and Africa have no doubt created a potential for the adoption of stringent regulatory controls by governments. But whether the publicity of events from these areas led to more cover-up as has been suggested by some scholars is a  which has a membership of over 40 companies, has a Code of Conduct that sets out the members' responsibility on human rights, transparency, arms, safety and work place relations. 86 The organisation has a Standards Committee which is tasked with investigating any alleged infractions of the Code. However, the most stringent measure that the Committee may take against a member is to recommend expulsion. The BAPSC, on the other hand, require that its members provide service with "high professional skills and expertise whilst recognising that the countries where they are operating have inadequate frameworks." 87 The organisation is heavy on the promotion of good relations between its members and the government of the UK and international bodies, and requires compliance with the values, interests and laws of the countries where they operate.
Considering the gravity of the human rights violations that have been committed by some of these companies, such measures are laughable. Apart from being too permissive, the mechanisms are designed to achieve results only with the consent of the members. Moreover, not all companies operating in conflict zones are members of such associations. One analyst has described the self-regulation mechanisms as nothing more than statements on paper. 88 The regrettable fact is that although the codes of conduct produced by these associations cannot override the obligations created by international human rights law and international Humanitarian law, 89 the 86 Mesner "Working Towards Effective Legislation" 166. 87 See BAPSC 2008 www.org.uk. One of the key objectives of the association is stated to be that of providing guidance on the substance of the need to comply with "international legal statutes". Obviously, with limited regulatory regimes at the international level, the association is aware that its members may be best served by the self-regulatory framework. constituencies that subscribe to them are unlikely to support the establishment of a binding multilateral framework.

Towards a new South African approach to PMSC regulation
The discussions in the above paragraphs easily lead to the conclusion that the international community no longer regards PMSCs as mercenaries and that their deployment in conflict zones may become the norm rather than an exception. Also, that there is belief among many states that they can control the activities of PMSCs, especially their use of force, through national laws. These conclusions, however accommodative approach to PMSCs is a breath of fresh air, so to speak. The Defence Review now provides an opportunity to explore contemporary and diverging issues relating to private military security from a legal point of view. And in a rather overt way, it encourages the nation to ponder the possibility of putting in place a legislative framework dealing with PMSCs that takes on board all the imperatives of regulation consistent with the emerging sensibilities on security reform. In the following sections we attempt to justify this view and to suggest some broad imperatives that such legislation would cover if it were to be enacted.

Justifying the establishment of a legislative framework
South Africa was lauded for being the first African nation to enact a law on Primarily, however, establishing effective regulatory mechanisms engender the promulgation of a legislative regime that creates standards aimed at improving accountability for the industry. And as already mentioned, the task of instituting accountability cannot be left to international regulatory frameworks alone. The latter should be complemented by domestic interventions. And this is what justifies our call for legislative action at the national level. In our view, a domestic regulatory regime that can meet these challenges must be effectively capable of upholding universal standards of human rights law and international humanitarian law, while adapting to the emerging demands of the global security landscape.

Elements of the envisioned regulatory framework
We believe that time has come to establish a permissive, albeit effective regulatory framework for PMSCs in South Africa. The basis of doing this should be the recognition of PMSCs as legitimate actors in the security arena. This recognition is captured most succinctly by the discursive shift that we earlier alluded to, which has moved the discourse away from the anti-mercenary and prohibitionist approach to the regulatory one. This shift has exposed the normative loopholes in a potentially vast mine-field of concerns regarding these entities. While with mercenaries it was easy to simply prohibit, with PMSCs, legal standards of practice and responsibility for violations of human rights and rules of international humanitarian law have to be established. An effective and legitimate regulatory framework must therefore deal with a plethora of concerns, the most important of which are: the preliminary issue of defining these entities, determining their legal status both under international human rights law and humanitarian law, their obligations and responsibilities, and the nature and implications of the relationships between private military companies and state and non-state actors in either international or non-international armed conflict. These are matters that require normative certainty. Although an argument could be made that since the Defence Review merely encourages debate on these issues, a sectoral approach to regulation, such as we see in United States and other European countries, may suffice. We dispute this contention. In the United States, for example, there are over fifty laws that affect PMSCs. 93 Since they address different issues, effective enforcement is difficult to attain. In our view, sectoral legislations are patchy and un-coordinated -they fail to "provide a comprehensive system of human rights standards". 94 Also, achieving maximum protection for individuals or groups who suffer from violations of human rights or rules of international law and enforcing such rules may be cumbersome. Given these drawbacks it may be appropriate to conclude that the Defence Review 2012 envisions the promulgation of a single legislative framework establishing key regulatory measures for PMSCs, from which other regimes may derive their legitimacy.
Setting out precise and conclusive content of the proposed law is not our intention.
The objective here is to analyse some broad aspects of the law with a view to showing how its regime could fit within the framework of change we alluded to earlier -the change from prohibition to regulation. Mercenary Act, s 1(1) defines "security service" to include " (a) Protection or safeguarding of an individual, personnel or property in any manner; (b) giving advice on the protection or safeguarding of individuals or property; (c) giving advice on the use of security equipment; (d) providing a reactive or response service in connection with the safeguarding of persons or property in any manner; (e) providing security training or instruction to a security service provider or prospective security service provider; (f) installing, servicing or repairing security equipment; (g) monitoring signals or transmissions from security equipment; (h) making a person or service of a person available, directly or indirectly, for the rendering of any service referred to in paragraphs (a) to (g)\ or (i) managing, controlling or supervising the rendering of any of the services referred to in paragraphs (a) to (h)". 100 Article 2 of the Draft Convention (functions which are "inherently governmental" include "direct participation in hostilities, waging war and or combat operations, taking prisoners, law making…and other functions that a state party may consider to be inherently state functions").
See a discussion of the Draft Convention in Juma 2011 Law Democracy & Development 182. is much inconsistency in the codes and the soft-law instruments. Our suggestion is that South African law could benefit more if it positioned itself as an extension of the Draft Convention. In this regard, the new law could, for example, adopt the Draft Convention's construction of the law on responsibility that arises from the use of force; 101 its scheme for the protection of the victims of violations; 102 and the elevation of the role of INGOs. 103 Overall, the proposed law must establish minimum standards based on principles of human rights and international humanitarian law that is applicable to all PMSCs registered in South Africa. Any association that may wish to enact a code of conduct for its members will then have to ensure that its code conforms to uniform standards in the new law. Another aspect that the law should absorb in its enforcement scheme is criminal liability. We propose that the law should establish such liability for certain kinds of activities within the operational mandate of PMSCs. Such liability could be linked to domestic and international criminal justice systems. The element of universal jurisdiction must of necessity be incorporated so that PMSCs cannot escape liability by simply migrating into South Africa. A detailed discussion of the protective and criminal schemes envisaged here may be appropriate for another space. Below, we digest some of the key administrative imperatives that the new law could incorporate in its regulatory regime to give effect to the standards of accountability that it establishes.

A regulatory body
Several frameworks discussed earlier have encouraged states to establish national institutions responsible for monitoring PMSCs. For example, the Draft Convention enjoins states to create a governmental body that would act as "national centre for collection, analysis and exchange of information" on the activities of PMSCs. 104  companies that operate on or from its soil. And this can be achieved only through legislative intervention. We have suggested that such an intervention must aim at harmonising the domestic framework with international trends whilst being guided by the need to make its approach congruent with South Africa's growing regional and continental responsibilities. Notwithstanding, we are equally conscious of the fact that serial defects in South Africa's security infrastructure cannot be cured by a single legislative feat. There are many other variables that must be considered, and while South Africa struggles to harness all possible strategies for reform of the sector, it could begin by streamlining its approach to privatisation and taking advantage of the PMSC phenomenon. A new normative regime for the regulation of PMSCs that conforms to the standards of international law, human rights and international humanitarian law is probably the best way forward. United Nations Development Programme Human Development Report (1999)