Memorandum from Dr Denis MacShane, Parliamentary
Under-Secretary of State, Foreign and Commonwealth Office
PRIVATE MILITARY COMPANIES GREEN PAPER
Thank you for your letter of 18 June.
CONTRACTS WITH
PRIVATE MILITARY
COMPANIES (PMCS)
AND PRIVATE
SECURITY COMPANIES
(PSCS)
Security guards and security management services
for many Posts are provided under contract by private companies.
These contracts typically involve guarding compounds or buildings,
checking cars for explosive devices and monitoring electronic
security equipment. They are managed locally and details are not
held centrally. I am, however, able to enclose (A) details of
some contracts managed by European Posts to give you an idea of
the sorts of companies contracted and the value of those contracts.
I have also asked my officials for further examples from a selection
of other Posts.
These contracts are with companies that we consider
to be private security companies rather than private military
companies. However there is no agreed international definition
and a global trawl to establish how the companies define themselves
could not be completed in the Committee's timescale.
DfID have advised that their contracts with
UK private military companies or private security companies for
activities outside the United Kingdom are limited to locally managed
security contracts for overseas offices.
MoD have advised that they contract private
companies to provide primarily logistical support including troop
deployment, food supply and maintenance of accommodation and equipment.
The contracts are raised by individual Commands and records not
held centrally. Can I suggest that a member of the Committee staff
contact ******** if the Committee would like to pursue this further
with them?
ANNEX A OF
THE GREEN
PAPER
You also asked about Annex A of the Green Paper.
The Annex, a table entitled "Mercenaries: Africa's Experience
1950s-1990s", is taken from the publication, "Mercenaries:
An African Security Dilemma" written by Abdel-Fatau Musah
and J Kayode Fayemi. The Annex was provided by Dr Kevin O'Brien
of RAND Europe.
My officials have spoken to Dr O'Brien who has
confirmed that the "Government" referred to in the entry
on page 35 relating to Sierra Leone and Sandline International
1996 is the Government of Sierra Leone. But Dr O'Brien has also
told us that the information for the gaps in the table is not
available. You, or a member of the Committee, however may find
it useful to speak directly to Dr O'Brien. *********
For Sierra Leone, the companies listed in the
"Mercenaries involved" column (for which the "Recruited
by" column is blank) were not acting under contract to the
United Kingdom Government.
THE GENEVA
CONVENTION AND
PMCS
In the course of our meeting on 13 June, members
of the Committee also asked whether the Geneva Conventions applied
to PMCs. Let me set out the key points.
First, PMCs are not addressed in the Geneva
Conventions. The closest role addressed specifically is that of
"mercenary" which is defined in Article 47 of Additional
Protocol I (enclosed at Annex B). However, this definition is
narrow and would exclude all non-combat activities — ie
most activities of most PMC employees.
Non-combat PMC roles: These non-combat
roles could still be covered by international obligations, and
resulting domestic legislation, where they existed. An example
might be equipment supplied or supported that was subject to an
arms embargo. But non-combat roles would not be subject to international
humanitarian law.
PMC combat roles falling outside the Geneva
Conventions' definition of mercenary: It is also possible
to imagine a combat role fulfilled by employees of a PMC that
fell outside the definition of a mercenary. An example might be
where the individual became a member of the armed forces of a
party to the conflict, or a national of a party to the conflict
(see Article 47). Such individuals would be combatants in the
conflict and therefore be covered by international humanitarian
law. If they were to commit grave breaches of the provisions of
international humanitarian law they would be liable to prosecution
for war crimes—the provisions of the Geneva Conventions
(and the Statute of the International Criminal Court) on prosecution
for war crimes apply to individuals.
Mercenaries: The application of international
humanitarian law to mercenaries is a matter of debate. It could
be argued that Article 47 of Additional Protocol 1 removes mercenaries
from the provisions of international humanitarian law (including
the grave breaches provisions) meaning that they could not be
prosecuted under International Humanitarian Law for war crimes
committed in the course of combat but only for domestic crimes
under whichever national law was applicable. We do not agree.
We believe that mercenaries are subject to the rules of international
humanitarian law and are liable to prosecution for war crimes
if they commit grave breaches of those rules. Mercenaries should
not have protection from prosecution for war crimes that is not
available to lawful combatants.
You will see from the text at Annex B that the
language of Article 47 supports our conclusion. Article 47 of
Additional Protocol 1 denies mercenaries the protection afforded,
"combatants" and "prisoners of war" but it
does not go on to say that the Geneva Conventions and Additional
Protocol 1 do not apply.
Without the protection of combatant status,
participation of mercenaries in hostilities is unlawful and they
may be subject to prosecution under national law for that participation
per se, whether or not grave breaches of the Conventions
are committed.
BIRMINGHAM SEMINAR,
24 JUNE
As you know, the FCO/DFID sponsored a seminar
on the Green Paper held at Birmingham University on 24 June. I
will send you an account of the seminar shortly.
Dr Denis MacShane
Foreign and Commonwealth Office
July 2002
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