Select Committee on Foreign Affairs Minutes of Evidence

Memorandum from Dr Denis MacShane, Parliamentary Under-Secretary of State, Foreign and Commonwealth Office


   Thank you for your letter of 18 June.


  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?


  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.


  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.


  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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