Examination of witness (Questions 160
- 179)
THURSDAY 13 JUNE 2002
DR DENIS
MACSHANE
160. I am on a roll. The other issue which I
think we need to address is whether or not we regulate, whether
or not we take action, the problem still remains of the potential
for embarrassment for the United Kingdom. We do know that one
of the companies that Colonel Spicer was associated with embarked
upon an expedition to Papua New Guinea. It was embarrassing to
the United Kingdom, it certainly aggravated our friends in the
region, Australia, New Zealand and other countries. Whatever else
we may or may not do, should we not have some way of saying we
are not tolerating this, we are not going to have you embarrassing
the United Kingdom or working against our interests or that of
our allies?
(Dr MacShane) I agree, again, Chairman, many things
embarrass the United Kingdom and I can assure you as a PPS in
the Foreign Office the Sandline Sierra Leone affair was something
that was not only embarrassing but I would say quite damaging
to the Government at the time. The issue is whether we do nothing
and this resurfaces every so often or we examine forms of making
the behaviour of these companies and what they do more transparent
and bring in a licensing regime. We may end up with embarrassment
but at least we will have collectively as a Parliament and as
a Government accepted some greater responsibility.
161. Could I ask if you have been able to examine
the United States' legislation? Would that be a model for us?
Could you amplify on that?
(Dr MacShane) The American legislation which covers
arms exports as well as the activity of private military companies
is, I understand, a licensing system that both covers companies
and individual contracts, so the Americans have commissioned private
military companies, for example, in some logistical and other
activity in the Balkans. It seems to have worked out successfully.
As always in America there is a great deal of transparency, congressional
inquiries, press inquiries. I would rather in Britain that we
moved all of this, if we are to go down this road, into the open,
transparent sphere. It is not a world in which angels operate
but I would rather that they were accountable and known to the
public so that if anything that should not be done is done it
is brought to public and parliamentary attention as soon as possible.
162. Can you help me on one thing. What is the
status of people who are, as we know them, mercenaries? I am not
talking about the Gurkhas, the Swiss Guard or people who sign
up to the Sultan of Oman's army and the soldiers in this army
who are under the command and control structure. Are they covered
by the Geneva Convention or could they be under this newly discovered
category "unlawful combatant"?
(Dr MacShane) Again, a very good question. I am sorry,
the Committee will have to forgive me, I do not have the Geneva
Convention in my head. Unless you are directly enrolled by and
for a state then I think you may not be covered by it.
Chairman
163. It would be helpful in response to Mr Mackinlay's
question if we could have a note on the relevance of the Geneva
Convention to the sort of activity we are now describing[2].
(Dr MacShane) That is a very important point, Chairman.
Andrew Mackinlay
164. Do our laws sufficiently have extra-territorial
effect with regards to the conduct of people operating from the
United Kingdom? I realise there are now international laws, thank
goodness, so if there are crimes against humanity there is albeit
a very fragile mechanism now with people being brought to court.
Is there on our statute book laws which we really ought to be
extending to Brits who are operating elsewhere around the world
or people whose companies are working from here? That has to be
looked at.
(Dr MacShane) From memory I can think of recent legislation
referring particularly to paedophile activity overseas that then
can be successfully prosecuted in domestic courts. Generally the
presumption is if you commit a crime in a state then it is that
state that arrests and puts you on trial. Again, this really is
much further down the road, Chairman. If we move into a legislative
and licensing regime I think all of these issues, and they are
important ones, would have to be considered and Mr Mackinlay's
very important point will be taken seriously by officials. That
is a lot further down the road way beyond this Green Paper stage.
165. My very final point, and I do not put it
in any provocative way at all, in fact let me preface my remarks
by saying I acknowledge that you are very much the architect of
this paper and also what you have said this morning indicates
on your part some enthusiasm for at least containing the problem,
a personal one. I would like on the record an assurance that the
emergence of this Green Paper is not one of these things that
does happen where the mood was we have to come up with something
but we have no intention of bringing forward legislation? I cannot
help feeling that is what is going to happen because the common
denominator amongst ourselves, and I think your testimony, is
the fact that there clearly is a need for some regulation although
we will have differences as to what it should be. Can I have an
assurance that this Government will not stall on bringing forward
legislation making the assumption that nobody is going to opt
for what I would call almost the anarchical situation of just
letting things drift, bearing in mind there are also international
considerations, there is a dormant draft Treaty lying around and
we have been informed that world leaders will show the way, etc.
Can you give us some assurance that this is just not a fobbing
off of the Foreign Affairs Select Committee?
(Dr MacShane) I could hide behind what I have to state,
that it is not for me to commit Her Majesty as to what she will
announce in her Queen's Speeches over the next two or three years,
but irrespective of that the hon. Member is wrong in that this
Green Paper originated from a long process in the Foreign Office
before I became a Minister, particularly the Minister responsible
for this part of the FCO's work. I have been genuinely interested
in the moral, political, legal, international policy, and intellectual
conundrums that have been brought up by the Green Paper. I am
looking forward to this 24 June conference where you really will
have the practitioners because what you will not do is wish away
the wholly legitimate and proper companies that are operating
in this field providing logistics training, transport, fishery
protection advice, security and the rest of it. What we are concerned
about is moving to the final sharp end of using combat and military
violence. I hope we can collectively, me as a Minister and you
as the Foreign Affairs Committee, or through the mechanism of
an Adjournment Debate in the House in the autumn or later look
at where we are once the consultation period is over. Still, I
repeat my inclination would be I would rather these things were
in the tent, as it were, where we could see in which direction
they were aiming rather than outside the tent when we have not
got the faintest idea what they are up to until we are splattered
with very unpleasant after-effects.
Mr Olner
166. Just on this issue. I think Mr Mackinlay
has a very good point. Whatever, this is going to be a lengthy
process but at this point in time are you encouraging self-regulation
of some of these companies to make them even more transparent
than they are now?
(Dr MacShane) Again, that is one of the options discussed
in the Green Paper. Effective and transparent self-regulation
has to be one of the possibilities that we will have to examine
once the consultation period is over.
Chairman
167. If only on an interim basis.
(Dr MacShane) On an interim basis. As always self-regulation
is one possibility until such time as it is shown to break down.
I will be interested in the debate. Believe me, there are people
and organisations with very keen perspectives coming together
in Birmingham in two weeks' time and I will be interested to hear
the contributions from the NGOs concerned about this and the companies
themselves on the best way forward. I keep stressing, difficult
as it may be for even myself to believe my own words, I have an
open mind.
Chairman
168. Minister, in paragraph 57 of the Green
Paper you quote the UN Secretary General as saying that in the
confusion of the Rwanda situation he even considered employing
private military companies in the Goma camp and particularly the
overspill from Rwanda into the camps within both Tanzania and
the Democratic Republic of the Congo. Is it your view that if
the issue were now to be raised again within the United Nations
that those same constraints might not apply because opinion within
the United Nations has moved on in respect of private military
companies?
(Dr MacShane) I think that would be going a bit further
than my impression, though I have not myself, and the Government
has not, consulted widely with all 189, soon to be 191, member
states of the United Nations. What I would say is that the last
ten years has been a very sharp learning curve for all governments,
looking particularly in our own corner of the world in Europe,
in the Balkans, in Rwanda, about how the failure to understand
the need to intervene militarily leads to the most awful deaths
and ethnic cleansing and in the case of Rwanda I think certainly
the use of the word genocide.
169. You will recall that in the case of Rwanda
there was a Carnegie Study which did a simulation exercise in
West Point that had 5,000 trained military people intervened in
1994 at the start of the conflict it might have prevented the
genocide which killed up to 800,000 people.
(Dr MacShane) President Bush the First sent in 1992
1,000 US soldiers to Macedonia as a tripwire and effectively,
although we have had some trouble in Macedonia in the last 12
months, kept that corner of the Balkans free of what Bosnia, Croatia
and Kosovo went through. Yes, I am very pleased that this Government
is extremely robust in understanding that if you want the end
of peace then you must will the means and that may require a strong
military presence of men who know how to use weapons rather than
just carrying them on the ground.
Mr Pope
170. Can I just return to this issue of accountability
through the international legal system. You are going to write
to the Committee about whether or not the Geneva Convention applies
to PMCs, although I think we can proceed on the basis that it
is quite likely that it does not given the case that the people
being held at Guanta«namo Bay are not covered by the Geneva
Convention. Earlier on you told the Committee that if a breach
of human rights took place there would be redress through the
law of the country in which the breach took place. It seems to
me that this is not very satisfactory. By the very nature of some
of these countries the rule of law has broken down completely.
We are already proceeding on the basis that the Geneva Convention
does not apply, so what redress does the international community
have against a breach of human rights by a PMC?
(Dr MacShane) I think this is a fundamental question.
The issue of how we bring about redress for breaches of human
rights is increasingly on the international agenda and is one
that has to be examined by the Commission for Human Rights in
Geneva itself. A company that in any way authorised its employees
to undertake activities which clearly were seen to be ultra
vires and in particular were seen to constitute a breach of
human rights would, I would have thought, be open to legal action
in the country where that company was based. In this case, again
theoretically, we would be talking about the UK and that is why,
as I say, if we can get to some kind of licensing regime it may
ensure that the companies operating out of the UK are very seriously
constrained and ensure that their men and their employees do not
carry out any act that could be considered to be a human rights
violation.
171. Does that not lead us on to the follow-on
problem that by their very nature these companies are highly mobile.
If I was running a private military company and the UK Government
established a tough regulatory framework to hold me and my company
to account probably the first thing I would do would be to move
that company to another island state. Whilst I think the Green
Paper is to be welcomed and it is a really good step forward,
would we not be better off putting the emphasis of our policy
on reaching an international agreement to prevent that kind of
state hopping by companies to avoid a regulatory framework so
there is not a hiding place for rogue companies?
(Dr MacShane) Indeed, in theory, yes, but, as we have
seen on a number of issues, trying to get every country to sign
up to a particular policy, whether it is support for the International
Criminal Court or whatever, is quite difficult. I am nervous of
making the best the enemy of the good. If as a result of this
consultation process the FAC recommends and other partners recommend,
stakeholders recommend, we actively consider a licensing regime
then I would rather have the companies operating out of the UK
accountable and transparent for what they do. The rogues who go
off and establish themselves, and I am not going to name any other
country in the world, and operate from there perhaps will not
have anything like the legitimacy as they search for business
that a proper company that is accountable and licensed, or its
activities are licensed case by case, in the UK might have.
172. I take that point and I accept what you
are saying. Clearly if we cannot do everything that is not an
argument for doing nothing and if we can establish a framework
here that is a good thing and we can be confident then that companies
operating from this country will sign up to a Code of Conduct
or whatever. I do think this issue of international co-operation
is a very important one and I would be interested to know what
efforts have we made so far at the United Nations to try and seek
a wider agreement with other nations? I accept your example of
the ICC is a very good one and getting the United States to sign
it is difficult but surely we must have a great many allies at
the United Nations who could see that it would be a worthwhile
project to regulate in an international way the PMCs.
(Dr MacShane) We have the United Nations procedures
already in hand, the draft Protocol on the Convention regarding
mercenaries has been up and running since 1977, but alas it was
drafted in my judgment, and you can see that in the language that
is contained in the Green Paper, very much as a political declaration
and in legal terms where all six of its qualifications for becoming
describable as a mercenary have to be met. I find it deeply unrealistic.
There is an OAU one which condemns the activity of any kind of
mercenary involvement against any national liberation movement.
We are now in the territory where one is beginning to realise
that calling yourself a freedom fighter does not give you the
right to undertake terrorist activity. Perhaps the OAU definition
now is slightly out of date because the great issues of Southern
Africa have been resolved. There is a European dimension on this,
there is certainly a UN dimension on this. As I say, Britain would
like to see not so much a correct definition of what is and is
not a private military company and what it can and cannot do.
The Government would like to see the UN and its member states
accepting full responsibility at the sharp end of this and, if
nothing else, if this consultation paper increases British public
opinion, international public opinion and awareness of the fact
that in the modern world security is important and security has
at times to be delivered by military forces and the best way of
doing that is on an international basis by professional armies
accountable to their states and the regional UN organisations
that have asked them to undertake this activity,—
Chairman
173. I am proposing to raise with you a point
which was made to the Committee by Sir John Stanley relating to
the flexibility which is allowed to national governments which
may be less possible for private security companies. The example
cited is that of Uganda at the end of the Obote regime in 1985.
The British military forces were training those of the then President
Obote, there was then the civil war and the assumption of power
by President Museveni who virtually immediately in January/February
1986 asked for the support of the British forces again. Clearly
if they were a private military company contracted to an earlier
regime it would be very difficult indeed for that company to alter
the terms of its contract, as it were. Do you see this as a problem
in respect of the employment of private military companies?
(Dr MacShane) You are taking me on to the terrain
of case by case hypothetical issues but—
174. This is an actual issue.
(Dr MacShane)—in this case an actual example.
My memory needs to be refreshed. As Sir John, of course, was a
Minister in this period, were there private military companies
operating?
Sir John Stanley
175. We had an official British Government training
team that was training Obote's forces on the basis that they were
being trained to be disciplined and responsible. That was the
basis on which we had a training team in place at the point when
the rebels who were Museveni's people came out of the bush, overthrew
the Obote regime and within a very short space of time, it was
liberally in a matter of weeks, we received an invitation from
the new incoming President Museveni that the official British
Government training team made up of regular serving officers and
men, having trained the people against whom they had been fighting
for several years, should come and train his forces, which was
a tremendous tribute to the professionalism and indeed the integrity
of the training team.
(Dr MacShane) The adaptability of British foreign
policy with regime changes has never ever failed to surprise me
studying over 500 years of state craft. I do recall those events,
at least from television, and it seemed pretty clear that Mr Museveni's
men commanded the massive and overwhelming support of the population,
so he was in every sense representing Uganda at the time and it
was quite right, I would have thought, for the British Government
to swiftly recognise the new government there and do its best
to make sure that its armed forces were behaving properly.
Chairman
176. Would you accept that a private military
company would find it more difficult to alter the terms of a contract?
(Dr MacShane) Again, you really are inviting me to
speculate and it reinforces—I feel I am repeating myself—my
view that I am glad there were British Army officers and men down
there carrying that work out. Believe me, I wish collectively
the democracies of the world accepted their security and military
responsibilities around the world in the way that certainly this
Government and country has irrespective of the party who controls
the Government.
177. I would like to raise the point of monitoring
the activities of private military companies. Colonel Spicer,
for example, has suggested that there should be personnel accompanying
the operations of private military companies monitoring their
activities, advising on correct behaviour and so on, and certainly
in one of his pamphlets or books he talked even of the UK military
attachés where they are resident undertaking that role.
What thought has been given by the Government in respect of the
monitoring of the activities of those companies who may be operating
under licence?
(Dr MacShane) I read that suggestion in the memorandum
that Colonel Spicer sent to the Government following the publication
of the Green Paper and it is an interesting one. I am not sure
that it is a role that defence attachés could or should
carry out. Whether or not there could be monitors attached, particularly
with regard to ensuring that there were no improper or human rights
violations, and this was raised earlier in our discussion, is
an interesting thought. Whether they could come from some body
other than HMG is also an interesting thought and one, as I say,
I hope will be discussed in depth at the 24 June conference.
Andrew Mackinlay
178. There was this firm which used the word
"Gurkhas" but should we not be able to have some regulation
so that a force does not have any mirror image or matching of
any of our armed forces units either by inference or by style?
I cannot put my finger on it but I have seen where people have
referred to the "Gurkhas" being there, which for everyone
here means a properly disciplined part of our proud Armed Forces
with a great track record when, in fact, they might have been
ex members of the Gurkha Regiment but they were a private military
company, mercenaries, call them what you like. I imagine it will
not apply just to Gurkhas but it is one I have seen[3].
I think we ought to look at that. I have even seen the word "LifeGuard"
mentioned. It might have a different context.
(Dr MacShane) I thought that was a deodorant, Chairman.
179. As I say, it is a relatively small point
but I hope that might be taken on board. I suspect that some of
this legislation might not necessarily be one Bill. I would have
hoped that the Minister would have thought that after this consultation
period there may be some aspects for when amending opportunities
come to existing legislation and that might be something you could
take on board.
(Dr MacShane) Again, a perfectly fair point, what
is in a name. I was surprised to see a company that was using
the name "Gurkha" which is very specific, certainly
to my way of thinking. Again, in terms of legislation, if we get
that far, there may be a case for a broad enabling act and then
each individual contract is examined in very specific detail which
would cover the point that Mr Mackinlay is making.
2 See Evidence, p Ev 45. Back
3
See Evidence, p Ev 65. Back
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