Examination of witness (Questions 120
- 139)
THURSDAY 13 JUNE 2002
DR DENIS
MACSHANE
120. What is the current thinking of the Government?
Is it possible to circumvent this obstacle of definition or are
the Government working towards a particular proposal for a definition?
(Dr MacShane) Clearly there are activities that are
illegal either in this country or in most other countries of the
world and may indeed now be illegal under the statutes of the
International Criminal Court. The problem of course arises well
before we get to that stage. Many of these companies are involved
in issues like advice, logistical support, training, personnel
for monitoring, anti-piracy of fisheries operations in the high
seas, de-mining and transport logistics, and it is sometimes difficult
to say that these are logistical operations and this is entering
directly into combat activities that can result in death.
Mr Illsley
121. Do we have any information or figures as
to how many private military companies operate in the UK?
(Dr MacShane) The ones we know about are actually
quite few in number. Most of them have been invited to participate
in the conference in Birmingham and the British Armed Forces,
like armed forces in other countries and the United Nations, now
rely on private companies to provide training, logistics and security
support. One British company, for example, was involved in providing
Princess Diana's security for the landmine campaign that she was
running in Angola. One advantage is that if we can find a regime
that makes all of these activities fully transparent, it is precisely
how one would actually get to know in detail who is doing what,
where, when and with what people.
122. I think this is one of the difficulties
that we have here. In terms of definition—and I mentioned
this the other day—we were right with the situation from
the recommendation announced in the Sierra Leone report which
arose under private military companies threatening to breach a
UN powers embargo and all that that entailed, and we have gone
from that to a private company providing security for Princess
Diana which perhaps nobody would criticise. In the Green Paper,
there is a suggestion that this demand for private military companies
is likely to grow and you have just outlined one or two instances
there in terms of logistics and training. What are the circumstances
in which this demand is likely to increase? Is it likely to be
peace-keeping or just other logistical support that you have just
mentioned?
(Dr MacShane) Principally I think that, with the end
of the Cold War, one no longer has the giant stasis, if I may
use that word, around the world in which the two armed blocks
directly or indirectly ensured stability or absence of violent
activity in their respective spheres of influence. There are a
number of countries whose governments in particular want to restore
the state monopoly of violence and I think we would all agree
that it is selected democratic states who have a preference that
they should have the exclusive monopoly on the use of violence,
but there are regions in the world where states, democratic states—and
Sierra Leone, which you mentioned, was an example—face very
serious armed opposition and if there is not the willingness from
other states or from the United Nations or from regional organisations
to lend effective timely assistance, then those states have the
right to appeal for professional help to train up their own soldiers
to provide the logistical and some other support to ensure that
the state itself can exercise law and order and an absence of
violence over its territory.
123. Do you envisage NATO or the United Nations
employing private individuals to carry out actions on behalf of
those organisations?
(Dr MacShane) Both the UN and NATO member states use
private military companies for training purposes, for some logistical
purposes and for security purposes. The Secretary General of the
United Nations did say that, when facing the crisis in Rwanda
some years ago, he considered calling on a private military company
to restore order very rapidly but, as he correctly said, the UN
was not ready at that stage to engage private military companies
and there may be an argument that says waiting to assemble an
international force—and if you recall the Rwandan experience,
that really was not on offer—meant that many thousands of
people suffered because—
Chairman
124. Many millions of people: 800,000 killed,
it was claimed
(Dr MacShane) I am not saying that there is direct
causal effect but, had one been able to stop the violence suddenly
effectively, then perhaps many more people who are now dead would
be alive.
Mr Illsley
125. Could I turn to the economics of private
military companies. There is a reference in the Green Paper to
mineral concessions being used as a way of payment for private
military companies and yet Colonel Spicer said in his memorandum
to the Committee that a mineral concession is worthless to a PMC
despite the fact that, in Sierra Leone, it appeared that that
is how they were likely to be paid for their activities there.
Do you consider payment by means of mineral concessions or other
similar concessions to be an acceptable format of payment?
(Dr MacShane) I would say it is an illogical format
of payment because you have to pay your men and other staff day
by day on a cashflow and to get a mineral concession of any sort
means that you will start to make money in years to come if you
successfully extract whatever the mineral in question is. What
I would say—and we have seen this over the conflict diamonds
question—is that some minerals, diamonds in particular,
can fuel conflict, but a legitimate security company providing
logistical training support for an army overseas wants to be paid
there and then, not a pledge against getting some mineral in the
future which may of course lose its value as commodity prices
fluctuate.
126. Does the UK derive any benefit from private
military companies? That is an awkward question. First of all,
do we use private military companies? Do we employ them or—
(Dr MacShane) We employ them, as I said, for training.
Both the Navy and the Army use private companies for training
purposes just as indeed the Police Force uses private companies
for training and examination preparation purposes, usually staffed
of course by former policemen in the latter case and former officers
and men in the former case.
127. Would we consider employing any other company
on a combat basis?
(Dr MacShane) I would find that very hard to envisage.
I gather that no minister should ever say "never", but
I think the state should control the monopoly of violence. Where
there is some advantage to Britain is that we have a robust, successful
and professional defence sector. That depends on a lot of support
from an arms industry, a trainings industry and contacts around
the world. I would be reluctant to see either our defence industry
whittle away and disappear or security in these private military
companies be driven off-shore, which is why the Green Paper does
discuss options for, as it were, making them transparent and making
sure that anything they do is wholly accountable and visible to
the public.
128. I have one question on the basic economics
which is, who would pay for any licensing regime that we impose
in the future? Would that be a cost imposed on the companies themselves
or would this Government stand the cost of that?
(Dr MacShane) There is the famous RIA, the Regulatory
Impact Assessment, that is obligatory in all legislation and you
are taking me far beyond where I think we are now in discussing
how it should be paid for. I myself tend to think that industries
themselves should accept the cost of ensuring that they have the
status to do what they want to do.
Sir John Stanley
129. Minister, like you, I do not have the benefit
of a transcript of Tuesday's session, but I want to put to you,
as best I can in the same terms, the two questions which I put
to Colonel Spicer, formerly of Sandline. The first question is
this: at the time of our predecessor committee's extensive inquiries
into arms to Sierra Leone, Foreign Office Ministers, including
the former Foreign Secretary, came in front of this Committee—and
indeed there was much debate, as you will remember, on the floor
of the House—and they spoke of private military companies
in terms that were at best extremely dismissive of the role of
such organisations and in many cases they spoke of them in highly
critical, indeed on some occasions almost vitriolic, terms. Today,
four years later, we have the Government's Green Paper which,
as our Chairman says, our Committee has pressed for, in which
the Government, in a very, in my view, balanced and fair way,
have set out certainly the disadvantages of using private military
companies but, in paragraph after paragraph, have referred to
circumstances and conditions in which private military companies
behaving respectably may be of value to the prosecution of the
Government's foreign policy and security interests. The question
that I would grateful if you would answer is, what is it over
the last four years which has produced a really striking sea-change
in the terms in which Ministers refer to the private military
companies and what has really produced a very, very different
Government perspective as to the potential use of such companies
providing, in the Government's own terms, they are respectable?
(Dr MacShane) I do not think there has been a sea-change.
I have the Foreign Affairs Committee's Second Report from 1999
and, in the main evidence which was actually given by the then
Permanent Under-Secretary, but of course he was reflecting the
view of Ministers, it says that he seemed more positive about
the possibility of establishing a regulatory structure and the
Committee accepted that there were a number of new questions which
would need careful work. The careful work has taken place and
has produced this and the discussions we are having now and the
Committee's recommendation talked about the need for the Government
to outline legislative options for the control of private military
companies and some of those options and alternatives are discussed
there. I think that what has happened is spurred very much by
the Sierra Leone report; the Government have thought about this,
have taken counsel, have examined what is happening in other countries
and have perhaps seen that what at the time was a very open and
shut case is more complicated. We do not feel that we can legislate
to shut down companies that provide training logistics advice,
fisheries help and the rest of it. So, that is why we have launched
the discussion in which we are taking part today which will be
followed up by the 24 June conference and, as I said, I look forward,
perhaps spurred by some publicity from the hearings this week,
to many more members of the public writing in with their views.
130. I think what you are saying to us is that
these four years have been a period of mature and considered reflection
because I and the Members of the present Committee who were also
Members of the previous Committee, will most certainly remember
Ministers and indeed the former Foreign Secretary coming in front
of us and expressing grave doubts about the integrity, honesty
and truthfulness of some of those associated with private military
companies. Certainly it would seem to me that there has been a
striking change in tenor, but I take what you have said and that
the Government have reflected long and hard and certainly my view
is that the Government are now following a very, very different
tenor in terms of their approach to private military companies.
(Dr MacShane) I did not attend every discussion by
previous Ministers on this issue but my view is that the Foreign
and Commonwealth Office should take what the Foreign Affairs Select
Committee recommends very seriously and read out of that recommendation
the request for a paper outlining possible legislative alternatives.
I think we have satisfied that demand in a responsible way and
the debate now is open and I very much welcome it because, as
I say again, I have no fixed view on this and I want to listen
to the debate and read all the evidence and positions. I will
be attending the meeting on 24 June myself and we will continue
these discussions thereafter.
131. My second question, which again I put to
Colonel Spicer and again I will put to you, is that, somewhat
to my surprise, there is no direct reference and only I think
the most oblique of references in the Green Paper to one factor
which to me is a compelling factor when one is considering trying
to protect the Government against human rights abuses by the use
of members of the Armed Forces rather than those employed by private
military companies and that is the fact that all the members of
our Armed Forces, as, Minister, you will be totally familiar,
are subject to the Armed Forces Act passed by Parliament and subject
to the discipline and provisions of that legislation. Would you
agree or not that, if there is going to be a choice between using
members of our own Armed Forces compared to those who are employees
of a private company, there is always going to be a substantially
greater human rights abuse risk of employing people who are civilians
employed under the terms of a contract compared to using members
of our own Armed Forces who are subject to the provisions of the
Armed Forces Act?
(Dr MacShane) What I would say is that
I think it would be preferable if states or-inter-governmental
organisations such as the United Nations or regional associations
took responsibility for the use of force that ultimate ends in
a classic military conflict and then we know exactly who is responsible
and one hopes that the soldiers are trained and professionally
led, though one also has to note that most of the most egregious
human rights violations that have occurred in recent years have
occurred by state forces led by, at least nominally, professionally
trained and accountable officers. So, you are inviting me to leap
straight, as it were, to combat activity at which point human
rights violations do sometimes occur. The issue that this Green
Paper has to address is the wide range of security and military
related activities that happen well before one gets to combat
activity. You are also assuming, if I may say so, that one would
approve of companies doing that which they want to do once they
had some kind of a tick from the Government, but one of the proposals
is a licensing regime which would license specific contracts and
it may well be—and here we are really very hypothetical—that
contracts or licences would not be awarded for activity that in
any way could place the company concerned in a position of being
likely to commit human rights violations. There is a final point
on that—and it is a very important issue—and that
is that of course any firm of any sort that was accused of committing
human rights violations, if those allegations were shown to be
true, would never receive any future contract of any sort. So,
it would be signing its own business death warrant.
Chairman
132. Or indeed the specific licence could be
withdrawn.
(Dr MacShane) Indeed.
Sir John Stanley
133. My question was not posed most emphatically
solely in a combat situation, I was posing it in the generality
because, as you will be aware, Minister, the Armed Forces Act
would be relevant for any member of the Armed Forces who was engaged
in any form of personal intimidation or unnecessary personal violence
which might arise on a guardian security role; it is a protection
against corruption et cetera. I would like to ask you directly—and
we are only talking about British service personally—whether
you would agree or not agree that there will always be a greater
degree of risk of misbehaviour for the Government to be employing
members of private military companies, even though licensed and
registered, who are not subject to the Armed Forces Act compared
with using our own service personnel subject to the Armed Forces
legislation.
(Dr MacShane) You use the term "Government employing"
as if the Government, again hypothetically, envisage using companies
to carry out activity currently carried out by the British Army.
I do not see that as being a likely development. What is under
examination in the Green Paper are states far away from Britain
that do not have an adequately trained, professionally led and
equipped military force who face the need to restore law and order
in their own country turning to some outside body. If the outside
body cannot be provided by friendly governments or by the UN,
should they be allowed to use a private military company and under
what terms and that is part of this debate. I think the point
you are making about the legislation that governs what soldiers
can do would later down this process be criteria that I imagine
would bear heavily on the shaping of any legislation and licensing
regime and so forth because it could be of no advantage to the
UK or any other country to have any security or military operation
which is operated from within these shores facing allegations
of any kind of improper behaviour.
Mr Olner
134. Private military company is a rather nice
sanitised term; it is a long way from what used to be called mercenaries
who, quite frankly, have been open to abusing human rights. Can
you comment on whether it is sufficient to rely on commercial
companies who tend to abuse human rights?
(Dr MacShane) Under the UN definition, the Gurkhas
would fall foul of the UN definition, so would the Swiss Guard
in the Vatican and so would people who had fought in the Spanish
Civil War. I completely agree with you, Mr Olner, and my preference
would be that it would be states that would organise the necessary
lending of support to countries that faced violent assaults on
their democratic systems or on law and order. The problem simply
arises when states are unwilling or unable and the UN are unwilling
and unable to provide that help. It seems to me that there is
in any case well before we reach that point a role for non-state
organisations and private companies, if you like, to provide training
and logistics.. We accept that in this country. If you train to
become one of Her Majesty's officers in the services, you will
go off and have part of your training carried out by private companies.
135. I do not think there is any real difficulty
in people accepting that, but surely it is the excesses that this
Green Paper is wanting to address as a result of what the predecessor
to this Committee said in the first instance.
(Dr MacShane) Quite and that is why there are proposals,
different licensing regimes are suggested. It seems to me that
the problem arises when these companies operate overseas and a
problem then arises when a company moves from logistic training,
transport and providing security for personalities into a role,
to put it crudely, when they start shooting at other people and
it is how one legislates, if that is the final decision as a result
of this process, to ensure that the use of violence is constrained
and is accountable. I stress again, the main point is that it
is democratic governments of other countries who are likely to
use private military companies, or private security companies
because they do not have the wherewithal within their own nation
state boundaries to provide the necessary level of security or
guarantees of law and order.
136. Using the same scenario to which you just
referred, would you then say that the official who licenses the
private military company would be deemed to be responsible for
any human rights violations that that company may well commit
at a later stage?
(Dr MacShane) I think that we are getting into seriously
hypothetical waters. I think that the company itself or the individuals
within the company would accept responsibility. In this country,
we do not follow the doctrine of, "we were only obeying orders."
People who do bad things have to accept responsibility at whatever
level decisions are made for having done bad things.
137. Can you possibly envisage the British Armed
Forces being deployed to rescue a British based PMC when everything
has gone horribly wrong and when they have been overtaken by events?
(Dr MacShane) That is a tough question
upon which I would like to reflect. It is hypothetical—just
as the NHS so often has to save botched up operations of private
hospitals and we have had some grave scandals recently. As I say,
my own preference remains that legitimately accountable states,
either individually or coalitions that are willing or through
the UN or through regional organisations, take responsibility
for these kind of operations. In order to get, in some regions
of the world, the required level of training, logistical supplies,
transport and leadership development, I can see that private military
companies could actually have a beneficial role.
Mr Pope
138. Like you, I am a great admirer of the free
market but it seems to me that you are placing an awful lot of
faith on the free market being the primary constraint on the private
military company to not engage in human rights abuses. If the
argument is that a PMC would not commit an abuse because it knows
that its contract, say with the United Nations peace-keeping,
would not be renewed, it seems to me that we are placing a great
deal of faith in that market philosopy and should there not be
other mechanisms in place which will hold the companies to account
in terms of abuse of human rights?
(Dr MacShane) Yes, I very much agree with you. I am
a great believer in government but there are many human rights
violations around the world carried out by the agents and troops
of legitimate, even often democratic governments. I think you
are right to say that, if we go down the road, after the consultation
Green Paper period, of seeking to produce legislation, then the
issue of ensuring that companies do not behave in an internationally
unacceptable or illegal way has to be considered, but that is
of course one advantage of making the whole process transparent,
accountable, having criteria, having inspections, if you like,
in order that what in the past was carried out under conditions
of secrecy—and I draw a distinction between confidentiality
and secrecy—and was not available to the public gaze is
now transparent and accountable.
139. I think it is a difficult area because,
when we look at the constraint to which I have just referred,
we are looking at a constraint that is in place prior to the abuse
taking place, "I would not contemplate taking part in an
abuse because this could happen to me." What happens after
an abuse has taken place? What redress does the international
community have against a private military company which has carried
out an abuse of human rights?
(Dr MacShane) The law of the land in which the abuse
has taken place and there have been examples mentioned in the
Green Paper of soldiers being taken away and executed because
of the abuses of human rights; the law of the land in which the
private military company is based, in this case we are talking
about Britain; and there is international law and the creation
of the International Criminal Court would, I think, be a contribution
in that regard.
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