APPENDIX 3
Memorandum from Dr Kevin A. O'Brien
NOTE: The views expressed in this paper represent
personal views only and do not necessarily reflect the views or
positions of RAND Europe, its parent RAND Corporation, or any
of its clients.
This paper will examine options for regulating
the activities and existence of private military companies (PMCs),
and provide a recommendation on these options.
EXECUTIVE SUMMARY
OF RECOMMENDATIONS
This report recommends a three-fold system of
licensing, integrating Options 3 (A licensing regime for military
services), 4 (Registration and notification) and 5 (A General
Licence for PMCs/PSCs) from the FCO Green Paper Private Military
Companies: Options for Regulation.
— Step 1—Licensing the Company:
the government would license individual companies for a range
of activities possible (see Step 2) in a specified list of countries
— Step 2—Licensing the Service
Capabilities: companies would be required to obtain a licence
to undertake contracts for military and security services abroad.
The activities for which licences were issued would be defined
in the licence.
— Step 3—Licensing the Individual
Contract (notification): companies would be required to notify
the Industry Authority of each contract requested prior to tendering/bidding,
in order to obtain a licence for each individual contract.
This report recommends a prohibition of activities
involving operations by individuals, combat services in zones
of conflict (with exceptions—the greatest being to support
UK national objectives through international peacekeeping), and
arms brokering.
This report recommends an industry regulatory
authority be established within the FCO.
This reports recommends most strongly that the
UK government encourage—through all means available—the
same approach at the international and EU levels, generally through
the rewriting of the existing UN General Assembly International
Convention against the Recruitment, Use, Financing and Training
of Mercenaries.
This report recommends that the UK government
integrate its approach to regulating the activities of Private
Military and Private Security Companies abroad/externally with
its approach to regulating the activities of Private Security
Companies domestically—to whatever degree required based
on explicit cross-overs—due to both the fact that numerous
UK companies will fall under both regulatory regimes, as well
as the fact that the activities are the same.
BACKGROUND AND
CONTEXT
1. Since the Pretoria-based PMC Executive
Outcomes (EO) first emerged publicly in late-1992, international
attention has been focused on the role and influence of these
companies in securing and stabilising—or, alternately, destabilising—national
and regional security throughout the world. The world's attention
since 1993 has been focused closely on the role of EO[5]
and companies like it in regional conflicts globally for a number
of reasons:
(a) the origins of EO and a number of companies
that engage in similar operations to it has sparked concern over
the role of these firms in regional security. Often perceived
to be operating outside of the laws of warfare (an incorrect but
oft-cited assumption) and strictly for pay, as mercenaries have
done for centuries, the apartheid background (or, indeed, Soviet
Bloc in increasing numbers of cases) of these professional warriors
has brought into question their motives for becoming involved
in these conflicts.
(b) the failure of the international community
to successfully intervene in conflicts, growing more numerous
by the year, in the face of an international outcry to "do
something" to halt the suffering perceived each time on television,
has itself led to a blasé attitude about many of these
conflicts and a paradoxical unwillingness by the international
community to pledge the resources (military, humanitarian, or
financial) to solving these crises; hence, when these PMCs become
involved, they are criticised for being a "band-aid solution"
to the crisis of the day without a long-term stabilisation and
peace plan being implemented—a failure of the international
community and not the PMCs themselves.
(c) the fact that (as was clearly demonstrated
in Britain's so-called "Sandline Affair" in the spring
of 1998) many of these firms operate with at least the acquiescence
of major Western governments and their security services brings
into question just what policy exists in Western government circles
vis-a"-vis these companies. Finally, the perception that
many of these companies are operating on behalf of Western mining
and oil firms (in many parts of the Developing World) with little
interest in the national well-being and standard-of-living in
the countries in which they operate (while extremely valid, a
not always correct assumption) has further tarnished the image
of these firms, painting them as neo-colonial exploiters of Africa.
2. When taken altogether, these perceptions
paint an extremely negative image of the PMCs and their activities
internationally over the course of this decade. Is this the reality,
however? Why did the PMCs emerge so strongly when they did and
who has supported their operations? Has there been any difference
between the more "traditional" mercenary-type operations
of yesteryear which still raise their head every few years and
the commercial military ventures in which these PMCs have engaged
in this decade?
3. The perceptions internationally of PMCs
as set-out above may not ring true when examining the rise and
rise of the PMCs over the 1990s. Indeed, it may be seen that,
in many cases but not all, these PMCs were much more effective
in resolving conflicts in many African countries than the international
community; that they take a much more direct interest in the well-being
of the populations in the countries in which they are bringing
a halt to these conflicts than the international community; and
that—in the largest number of cases—it has not been
the fault of the PMCs that long-lasting stability and peace did
not come to the countries in which they have operated, but that
of either the international community which failed to step in
(as, for example, was promised for Sierra Leone in 1997) to secure
that peace or of the participants to the conflict themselves (as,
for example, has been the case in Angola) who were unable to agree
to a post-conflict peace-settlement following the withdrawal of
the PMC peace-brokers.
MERCENARIES VS
PMCS AND
THE STATE
4. From the start, this author must emphasise
the distinction between "mercenaries" and "private
security/military companies" (as will be outlined below under
"Definitions"): the options outlined in this paper are
solely for the purposes of regulating the activities of fully
constituted companies, and not individuals involving in selling
their military services and skills on an ad hoc basis. Therefore,
from this basis, this paper starts from the point that PMCs do
not constitute "mercenaries" under any of the existing
legal (national or international) or otherwise established definitions
today. They do, however, require an extreme degree of oversight
and transparency much greater than, for example, any multi-national
corporation due to the nature of their service-offerings.
5. While Africa has so far been the focus
of the popular interest in these firms (largely due to the fact
that the overwhelming majority of PMC operations have been in
Africa), outside of Africa a similar trend has emerged. In the
former Soviet Union, the demobilisation of hundreds-of-thousands
of soldiers from the Armed Forces of the Soviet Union has led
to tens-of-thousands of them joining increasingly active private
security firms, involved quite often in very questionable dealings
with the various elements of organised crime in the fSU. Private
Security Companies have proliferated in Russia in particular since
1990, with an estimated 12,000 now registered. This movement into
the "private sector" has also been the case throughout
Central Asia and the Pacific Rim, where demobilised combatants
from the various guerrilla and low-intensity conflicts have sold
their services to a variety of organised crime units involved
in arms trafficking, prostitution, child slavery and the drugs
trade. Finally, in Latin America, the various drug cartels and
families have, since the early-1980s, organised private armies
composed of former soldiers, intelligence personnel and mercenaries
from throughout the Americas, in order to not only defend their
interests against each other and the various governments, but
as well to take a pro-active role against these same "opponents"
in order to maximise their portion of the narcotics trade. These
latter cases are clearly examples of the extremely negative image
of the mercenary.
6. Given that war-fighting and security
have traditionally been the domain of the state, the transference
of these capabilities to private corporations has launched a debate
surrounding not only the usefulness and involvement of these firms
in security activities around the world, but as well on determining
what steps should and can be taken to regulate such bodies, making
them accountable to either national governments or a world body
such as the UN. The emergent awareness of these private groups
has created a new policy concern for world governments. Under
the existing international system, national military forces are
controlled through the civilian political leaders in their respective
countries (within the democracies), who in turn regulate and control
the activities of these forces in order to (ideally) make their
usage always fall within national or international legal statutes
and controls. The privatisation of these activities cannot be
controlled in the same manner, given that enterprises which enter
into commercial agreements with other governments have not, traditionally,
fallen under the rubric of military oversight or arms control.
7. But is this "privatisation of violence"
a threat to regional (and international) security and stability?
The nature of the organisations which are increasingly taking
on the role of either (sometimes both) exploiter or peace-maker
may lead one to believe this. These organisations are more business-like,
motivated, funded, and governed (largely through a network of
corporate fronts) than any other such entities have been since
before the rise in dominance of the nation-state.
8. In discussing this "privatisation
of war" (alternately known as the "privatisation of
violence"), the environment in which they operate is key
to appreciating their evolution. Within the relationship between
sovereignty and security, the disintegration of Westphalian notions
of state sovereignty—including their allied Weberian notions
of the "monopoly of violence" to the state—and
the effects that this has on security and war cannot be underestimated
when looking at post-conflict resolution and reconstruction. Much
of this "monopoly" no longer resides with the state
in the Developing World but with agents which it has brought in.
Coupled with the current general trend towards globalisation and
privatisation, and the failures of the international community
to respond to each and every massive humanitarian crisis effectively,
it is little wonder that we are witnessing a substantial growth
in private security today.
9. Thus, the question remains as to whether
such corporations should be allowed to engage in the provision
of security and other military-related capabilities without being
placed under the national and international laws of warfare, or
whether "private enterprise"—as many pundits and
critics see this—should be allowed to flourish in the same
way that other industries are governed. The answer to this question
is of increasing importance: while this privatisation of warfare
emerges as a force in regional security, it is demonstrating the
capability and willingness to take over the role of peacekeeper
or peace-maker in a variety of regional conflicts from the international
bodies (UN, NATO, OAU, OAS, ASEAN) that have traditionally undertaken
such missions. Given that such operations have generally been
governed by international consensus as derived through a UN mandate,
allowing private commercial organisations to undertake such activities
may place them outside of such international consensus and therefore
outside of such restrictions or controls that may exist through
international law—or is that the case at all?
10. This is not to say that the role of
private organisations in the world's trouble-spots is anything
new: increasingly, private humanitarian and relief organisations
(such as Médecins Sans Frontie"res, the International
Red Cross, CARE, and other groups) have been replacing the role
of the UNHCR or UNICEF in providing needed relief support in these
trouble-spots. Should the provision of security be any different
in this regard? This question can only be answered by understanding
the groups that are engaged in such activities, as it is evident
that the type of operations that these different corporations
are each undertaking present very different circumstances in each
case.
11. Finally, this author's own thoughts
have evolved over the course of this debate during the last decade.
Ultimately, pragmatism has won the day: previously, this author
would have recommended strongly against the possibility that such
private security and military companies be allowed to become the
supplemental wings of national armed forces—the negative
example of the use of MPRI by the US State and Defense Departments
as "surrogate training forces" in Croatia and Bosnia
being a starting point for this caution. Indeed, Ken Silverstein
warned against this when he stated that "the use of private
military contractors allows the United States to pursue its geopolitical
interests without deploying its own army, this being especially
useful in cases where training is provided to regimes with ghastly
human rights records."[6]
However, with over a decade's view on these issues—and particularly
the responses, or lack thereof, of both the international community
and national military forces to humanitarian catastrophes and
other so-called "complex emergencies" in the Developing
World, alongside a burgeoning view that Western military forces
are resource-strapped as it is—this author has become more
willing to look at options for such private actors to operate
in support of UK national interests and objectives.
12. Ultimately, though, the danger must
be avoided whereby national state interests become the driving
force for the deployment of such private military forces and,
thus, a tool of state policy—the danger exists that, in
such a situation, the impetus for helping secure stability and
peace for a people surrounded by war could become lost, and the
state's interests become interventionist in another country, something
prohibited under international law as an act of aggression and
only condoned under the strictest of UN mandates.[7]
DEFINITIONS
13. (Paras 3-8): One of the greatest challenges
for both policy and law enforcement lays in defining the activities
and actors in this area. The definition of "mercenary"
contained in Article 47 of the First Additional Protocol of
1977 to the Geneva Conventions is generally unworkable as
a legal instrument, as
(a) it defines the actor and not the activity
(b) to be construed as a "mercenary",
all six elements of the definition must apply to an individual
14. These definitions are either unworkable
for legal purposes or (especially in the case of the OAU Convention
for the Elimination of Mercenarism in Africa, which was designed
to stop neighbouring African rivals from hiring mercenaries against
each other) irrelevant directly to the issue at hand. Unfortunately,
in many cases, it has been the signatories of both Conventions
which have hired mercenary forces for their own interests—thus
laying bare the hypocrisy inherent in much of the debate. For
this reason, these Conventions are quite rightly not supported
by many countries—including the UK (see below "The
International Context & Legal Framework").
15. While the categories outlined in Para
9 are useful, the interpretations of this paper presuppose the
following definitions.
(a) Mercenaries: mercenaries are the
traditional soldier, having only been replaced as an accepted
combatant at the time of the French Revolution when national ideals
were tied inextricably to military service. In modern times, the
term "mercenaries" has become a pejorative one, conjuring
up an image of a hardened white soldier brutally intervening in
a small, hitherto unknown African country for financial gain,
or an "international brigader" fighting through the
streets of Srebrenica. Mercenaries, in this more traditional sense,
continue to be active world-wide increasingly in the 1990s. The
"White Legion" during the 1996-97 Zairian conflict is
typical of the way mercenaries have been employed since the end
of the Second World War. This unit of approximately 300 personnel
was reportedly trained by former French Presidential Guard (GSPR)
officer Colonel Alain Le Carro, former Gendarme Robert Montoya,
and the Serbian commando, Lieutenant Milorad Palemis. The unit,
composed of mercenaries from Serbia, Morocco, Angola, Mozambique,
South Africa, Belgium, France and Britain, was fighting for President
Mobuto Sese Seko; following the defeat of Mobutu, they were reported
to have moved south to Congo-Brazzaville, where they fought for
the besieged Lissouba government in Brazzaville.[8]
Other examples of modern mercenaries include dispossessed former
combatants flooding out of conflicts in the fSU and Balkans; Ukrainians
in Angola and Sierra Leone for both sides; specialist pilots in
Zaire, Congo-Brazzaville, Angola, Sierra Leone, Liberia, Guinea-Bissau;
Israeli, British and American former special forces personnel
in Mexico, Colombia and the Iron Triangle training security forces
of drug cartels; and former Spetznazsi and KGB personnel
involved with Russian mafiya.
(b) Mercenaries continue to exist across
Africa—however, more often than not, the role and presence
of African mercenaries is overlooked by both national and international
governments, as well as the media and international NGOs involved
in these conflicts; it is the presence of African mercenaries
(either individually, through tribal affiliations, or through
the forcing of intervention by external national government actors
with private interests and concerns in foreign conflicts throughout
the continent) that far outnumbers the presence of any Western
(ie "white") foreign actors involved in Africa's conflicts—and,
therefore, raises far more of a concern in many senses.
(c) While such activities have continued
unabated, however, there has been a gradual change from the type
of mercenary activity witnessed in the period following decolonisation
in Africa during the 1960s (for example, the interventions in
the Belgian Congo by "Black-Jacques" Schramme or "Mad
Mike" Hoare) to a more controlled involvement in such conflicts,
with greater consideration placed on the background to the conflict
and the local politics that contribute to it. While today's mercenary
may be more "reflective" than those of the past, it
is also clear that the reasoning which pulls such people in is
no longer a motivation based solely on monetary compensation,
but also by a self-awareness that this is the only life-style
which such an individual could have. This final point is a key
problem in dealing with this new warrior movement. The failure
of re-education or training programmes to provide hope to former
combatants has, no doubt, played a major role in making them continue
life as warriors. Whether as guerrillas or members of statutory
forces, for these men, who have spent the last two to three decades
in combat, the realisation that they do not fit into civil society
has been a prime motivator in this tendency towards mercenary
activity.
(d) Private Armies/Militias and Warlords
are also dominant in many African conflicts. These groupings
of private forces represent the next rung from mercenaries. Although
such forces can include mercenaries in organised numbers (such
as Five Commando in the Belgian Congo during its wars of the 1960s),
these groupings do not always have a national outlook to their
conflict; indeed, these groups can often be transnational, supported
by whatever country they can obtain funds and hardware from at
any given time, and fight simply for control of a region or resource.
Such diverse entities as transnational terrorist organisations,
religiously motivated combatant groups (such as those supported
by the Islamic Brotherhood), and leaders such as John Garang in
Sudan all fall into this category. They do, however, fight with
more organisation than mercenaries and their efforts are more
directed over longer periods of time.
(e) Private (Commercial) Security Companies:
PSCs first began to emerge on the world stage as long ago as the
16th Century, when Italian mercantilism meant rival commerce families
hired security elements against each other to control their businesses.
This evolved, during the next few centuries, into the security
elements of the great colonial exploration companies such as the
Dutch Jan Compagnie and the British South Africa Company; even
the British East India Company and the Dutch East Indies Company
retained security elements partly seconded from their own national
forces. The PSCs evolved throughout the 1950s and 1960s, mostly
in Africa, but as well in Asia and Latin America. The most infamous
of these were the operations by Sir Percy Stilltoe, a high-ranking
British counter-espionage expert from the Second World War, who
was hired in the 1950s by Harry Oppenheimer of DeBeers. Oppenheimer
contracted Sir Percy to establish intelligence networks in Sierra
Leone and use mercenaries to eliminate diamond smuggling, forcing
all to sell to DeBeers.[9]
Where, 10 years ago, such a category was composed of individuals
tasked with personal and installation protection primarily, private
security companies have grown to such a degree that many of them
now include capabilities in transport, intelligence, combat-firepower,
and para-medical skills. While most often they are accused of
being "mercenary forces" engaged in "criminal activities
and violations of human rights" (as was stated in the UNHCR
reports on the "Use of Mercenaries as a Means of Violating
Human Rights and Impeding the Exercise of the Right of Peoples
to self-determination"),[10]
there is a clear distinction emerging between the more traditional
mercenary forces and those engaged in high-profile, high-risk
private security operations. Examples of these include Group 4,
Control Risk Group, LifeGuard Management, Corps of Commissionaires,
and KMS.
(f) PSCs can also include Private Intelligence/Information
Brokers, which include Competitive Intelligence/Risk Analysis
and Information Brokers (such as Control Risks Group, Oxford
Analytica, Economist Intelligence Unit), and "Hard-core"
private intelligence firms (such as in Romania, where there
are currently more than 160 private intelligence agencies all
run by former DSS or MoD intelligence personnel; or in Russia
where (by April 1994) there were 6,605 "private security
enterprises or security services companies", 26,000 private
investigation licences). However, private intelligence agencies
operate on a different plane than PSCs/PMCs: while there may be
cross-overs (ie Control Risks Group also provides PSC services),
generally speaking these firms do not engage in physical security
or military activities.
(g) Private Military Companies: PMCs
are the ultimate evolution of all of the above.[11]
The clear differences in their operations from each of these is
that they are organised along corporate lines (including boards
of directors, share-holdings, and corporate structures), their
work has a clear contractual aim and obligation to their clients,
and they engage in military operations—across the spectrum
where necessary—something most PSCs will not undertake,
especially in Africa, Latin America and the former Soviet Union.
While the most well-known of these are Executive Outcomes (South
Africa), Defence Systems Limited (UK), MPRI (US), and Sandline
International (UK), other companies include KMS and its subsidiary
Saladin Security, The Corps of Commissionaires (which has operated
since the end of the 19th Century), BDM/Vinnell Corp (US), AirScan
(US), Levdan (Israel), and Gurkha Security Guards Limited (UK).
DSL, for example, was hired throughout the 1980s and into the
1990s by international organisations such as the World Bank, the
UN and various humanitarian NGOs to protect their personnel and
assets in regions of conflict. DSL's operations in Africa throughout
the 1980s included Mozambique, Sudan, and Kenya, to name a few.[12]
16. There are differences in the composition
of the PMC sector. While the strongest companies exist along permanent,
corporate lines (such as EO, Sandline, DSL, and MPRI), there are
many operating internationally that, while calling themselves
"companies", are little more than glorified mercenary
operations, existing often for short periods of time only (such
as South Africa's Stabilco, France's Secrets, and the UK's Security
Advisory Services Ltd). There are also differences in the services
that these firms provide. These can be divided between those PMCs
that provide military services up to and including combat operations
(the "active"), and those who provide training and support
only (the "passive"). Thus far, Executive Outcomes and
Sandline International are the principal firms to provide combat
capabilities, many of the other firms could easily develop this
capability (especially MPRI and DSL).
17. The point of making these distinctions
is that the line between mercenaries, PSCs and PMCs are often
blurred all three ways: individuals who previously engaged in
what could be defined as "mercenary" activity (ie selling
his skills on the open military market without a corporate affiliation,
etc) could then become employed by either a PMC or PSC. On the
other hand (as is rightly pointed out in Para 14), oft-times PSCs
involved in defensive physical guarding could cross the line into
offensive military operations. For this reason, defining the activity—based
around the entity (rather than the other way around)—is
crucial to approaching the issue of regulation.
OUTLINING OPTIONS
FOR REGULATION
18. The Green Paper Private Military
Companies: Options for Regulation lays out—in an extremely
lucid, comprehensive, pragmatic and authoritative manner—the
background to the operations of PMCs, the arguments for and against
their usage (in all respects), the "debate thus far"
amongst the stakeholder community concerned with PMCs (the research
community, the government, the private sector, the PMCs/PSCs themselves,
the advocacy and humanitarian aid NGOs, and the international
organisations concerned such as the UN and African Union), and
the options for regulation. The authors of the Green Paper should
be complemented strongly for their work in this respect—this
author finds little within the Green Paper to contest or argue
with.
19. The Green Paper assesses a number of
options for the regulation of PMCs (as well as PSCs and mercenaries)
by the UK government. In Paras 62-64, The Case for Regulation
is laid out effectively by the Green Paper, with all arguments
being agreeable.
20. This author believes that, despite the
concerns over "costs" and "effectiveness"
laid out within the Green Paper, that regulation should and must
take place by the UK government; failure to do so—especially
after such "political hay" has been made of the issue
since 1997—would result in a loss of prestige for the UK
government and a potentially serious gap in existing legislation
dealing with UK companies.
21. This author recognises full well that
these companies (at the very least, since the late-1960s with
companies such as WatchGuard International and KMS) have long
assisted the UK government with operational interests overseas,
supporting or even supplanting UK forces and officers in regions
of the world where British forces could not officially be brought
to bear. While much quieter than the more openly-declared operations
of the US government in the same respect, this has been a long-standing
practice for both the UK government and PMCs/PSCs. The spotlight
that was cast on this issue, however, by the multiple entries
of the company Sandline International into both the public and
government eye between 1997 and 1999 has meant that this long-standing
practice now demands regulation.
22. These options—to be complete—must
consider:
(a) National regulatory options, including:
(i) The distinction between the act and
the actor when considering regulation
(ii) Offences and limitations (ie allowable
versus prohibited activities), including specifically:
1. support to national
military operations in zones of conflict
2. combat services in
zones of conflict
3. so-called "privatised
peacekeeping" by PMCs in zones of conflict
(b) The regulatory authority
(c) The transience of numerous companies
between domestic operations in the UK and external operations
abroad, and the impact of legislation on these issues.
(d) International regulatory options
RECOMMENDED NATIONAL
REGULATORY OPTIONS
23. In terms of the options presented, Option
one (A ban on military activity abroad) and Option two (A ban
on recruitment for military activity abroad) I disagree with,
as they are not practical nor enforceable.
24. Finally, Option six (Self-regulation:
a Voluntary Code of Conduct), while somewhat laudable for the
companies concerned, should be implicit in the companies' activities—both
in terms of carrying themselves with respect to and governance
by law (including international corporate law, international humanitarian
law/laws of armed conflict, and those laws of the country both
from which they originate and in which they are operating); there
should be no question of the companies always ascribing to these
principles. Otherwise, they do not deserve other considerations
(such as recognition and some kind of authorisation for activities).
This should go to the heart of the existence of these companies:
it will be "bad for business" (in a number of respects)
if they are known to be breaching the law in their operations.
25. Within Option six, the formation of
a "trade association" is a useful tool—but virtually
already exists in the UK (the so-called Business Security Risk
Group) or the mentioned British Security Industry Association.
Further enhancements to this foundation would be recommended.
Certification through such an association would be a step in the
right direction for regulation—but should be further integrated
with new regulatory measures at the state level.
26. This author would strongly support a
regulatory regime combining Options three (A licensing regime
for military services), four (Registration and notification) and
five (A General Licence for PMCs/PSCs). Such a regime would include:
(a) Step one—Licensing the Company:
the government would license individual companies for a range
of activities possible (see Step two) in a specified list of countries;
to operate in countries other than those listed on the licence,
the company would have to obtain prior clearance based on Ministerial
decision. In so doing, the agreement could set out standards it
expected the companies to meet eg that they should not employ
people with criminal records or ex-servicemen without an honourable
discharge
(b) Step two—Licensing the Service
Capabilities: as a sub-set of Step one, companies would be required
to obtain a licence to undertake contracts for military and security
services abroad. The activities for which licences were issued
would be defined in the licence.
(c) Step three—Licensing the Individual
Contract (notification): as a further sub-set of Step one, companies
would be required to notify the Industry Authority of each contract
requested prior to tendering/bidding, in order to obtain a licence
for each individual contract. As long as the activity required
in the contract matched the activities agreed in the company licence,
authorisation would be instant and straight-forward; should the
contract require activities outside the scope of the company licence,
then Ministerial approval would be required.
27. Such a licensing regime would ensure
total transparency of the company and the contract, from beginning
(the company) through the end (the activity). It would ensure
that the companies are limited to the activities described, required
to seek authorisation (ie further licensing) for activities which
fall outside of the initial Company Licence. A sufficient and
enforceable punishment and prosecution regime would have to be
put in place to ensure that breaches of these licensed parameters
were met. Such a regime would also ensure client confidentiality
between the contractor and contractee (ie the only information-holder
on the contract would be the UK government), and would avoid delays
(and therefore not reduce the competitiveness of UK companies)
as the licensed activities would be spelled out clearly from the
beginning.
28. Difficulties will continue to exist,
the biggest one being the extraterritoriality of most of these
activities (ie the fact that they will be undertaken external
to the UK). Since the activity which is licensed takes place abroad,
it would be difficult to know (or prove) whether the terms of
the licence were breached (though transparency conditions could
be included in the licence, eg licensees could be required to
facilitate access to places where their activities were taking
place).
29. While companies not wishing to be subject
to a licensing regime could move their operations offshore, this
author would agree with the view in the Green Paper that this
would mark them as possibly being less than wholly respectable;
in addition, the law could be extended to all UK citizens &
passport holders thereby ensuring that even those operating offshore
would be subject to the law and, therefore, also to its breaches
and punishment.
30. Such a regime would include in its list
of authorised services which PSCs/PMCs could provide abroad as
transport, intelligence, force professionalisation training (both
regular and irregular), provision of military advice, paramedical
services, physical (both personal and installation) guarding,
humanitarian aid convoy protection, refugee protection, administration
and logistics, and other non-front-line services—including
potentially law enforcement and policing in countries in transition
(once again, Sierra Leone presents a good example) without the
capability to provide this themselves.
(a) The PMCs previously active in combat
support and combat operations (ie EO and Sandline International)
have argued that there cannot be training without participation
in front-line combat operations. This author would take a pragmatic
approach to this when dealing with a situation of armed conflict
(as opposed to a country at peace where UK personnel were engaged
in force professionalisation training for the sake of national
stability): while UK personnel involved in training should not
be prohibited from accompanying their trainees to the front line,
they should generally provide support only and not actively engage
in combat.
(b) This issue particularly opens the whole
question of the exact differences or similarities between PMC/PSC
personnel from Western countries and those countries' special/specialist
forces when it comes to the role of force-training and combat
support in Developing World countries. In this sense, PSC/PMC
personnel would generally be filling the same role that Western
special forces' personnel have traditionally undertaken with Developing
World armies. It is for this reason (similar to the problems with
the prohibition on combat operations—see below) that as
pragmatic an approach as possible must be taken.
31. Companies engaged in both arms exports
and military & security services would have to have this delineated
on their initial Company Licence (with aspects such as training
and maintenance included).
32. Companies should be allowed—where
licensed—to work for both foreign governments under contract
and for UK companies operating overseas (especially in terms of
protective requirements). Such allowance, while maintaining as
much client confidentiality as possible, should be subject to
the full scrutiny of the industry regulatory authority.
RECOMMENDED PROHIBITED
ACTIVITIES
33. Operations by individuals. These
will continue to be construed as "mercenary" activity
and should, in Britain's national interest, be prohibited.
34. Combat services in zones of conflict.
Such activities by UK companies in support of foreign governments
should be prohibited, as the UK government should continue to
support and push for the continued state monopoly over organised
violence (ie war). UK companies should be allowed to undertake
physical security aspects of private security operations but these
should always be defensive/protective in nature, and should not
include offensive operations.
(a) This raises the very difficult issue
of "hot pursuit" or "offensive defence", where
attacks by opponent forces on areas/individuals/installations
protected by a PSC/PMC lead to the PSC/PMC pursuing the opponent
forces away from the site of the attack—or, as happened
in a number of cases (ie EO in Sierra Leone and Angola), engaging
in pre-emptive offensive measures against opponent forces for
defensive purposes. This author recommends that a pragmatic attitude
be taken towards this issue: the overwhelming majority of UK PSCs
and PMCs are composed of retired professional military officers
and other ranks from (largely UK but also) Western forces, with
a great deal of professionalism. The companies should be aware
that they will have to justify any and all such activities to
the UK government after-the-fact, and therefore should be allowed—within
the terms of the licence—to exercise best judgement in such
a situation. This is not to say that blanket authorisation should
be granted for such operations; rather, that these operations
should be construed as being wholly reactive to such threats.
This will avoid breaches of the suggested ban on combat operations.
(b) Such a prohibition should not include
contracting by the UK government to support either national stability
operations in foreign zones of conflict in support of UK armed
forces, or supplementing or supplanting UK armed forces in international
peacekeeping operations and related in foreign zones of conflict.
This so-called "privatised peacekeeping" by PMCs in
zones of conflict should be allowed for UK companies operating
under direct contract to the UK Ministry of Defence, the UK Department
for International Development, or the UK Foreign and Commonwealth
Office. This should be allowed for a number of reasons:
(i) The abilities of the limited resources
of the current UK armed forces to meet each and every crisis,
humanitarian disaster or so-called "complex emergency"—UK
PMCs/PSCs could be licensed to undertake these operations in support
of UK national interests and objectives.
(ii) It is clear that the United Nations,
which the UK supports strongly, is moving towards a situation
(particularly through DPKO) where PSCs/PMCs will be used in ever-greater
capacities from their current existence as protectors and defenders
of humanitarian aid operations in zones of conflict. In the not-too-distant
future, the UN may be willing to accept (as happened with the
OSCE Kosovo Monitoring Mission and US firm DynCorp) the substitution
by national governments of private-sector actors for national
military forces.
(iii) Finally, perhaps the greatest argument
for such activities to be allowed is that the UK government has
traditionally done this for decades. Companies such as DSL (currently
part of Armor Group) have long supplanted, under contract, the
role of—for example—British Military Assistance Training
Teams to numerous Developing World countries in transition. The
continuation of such activities should be encouraged.
(c) Such a prohibition should not include
support to national military operations in zones of conflict.
As such support is either currently in place (in various forms)
or being considered for the British Armed Forces, it would be
impossible to ban it for UK companies operating abroad. Such support
could include any number of aspects (such as transport, intelligence,
training, and paramedical skills).
35. Arms Brokering: this should be
kept separate from licensing PMC/PSC activities and continue to
be subject to the existing arms-export controls in the UK. Where
cross-overs occur, such should be noted on the PMC/PSC licence,
but not authorised under this regulatory regime.
RECOMMENDED INDUSTRY
REGULATORY AUTHORITY
36. The question is obviously raised as
to what body should govern any licensing and regulatory regime
subsequent to these consultations. There are two clear models
to follow currently:
(a) South Africa: the National Conventional
Arms Control Committee (NCACC) of the South African Parliament
is responsible for overseeing the Regulation of Foreign Military
Assistance Act 1998 in all of its parameters.
(b) United States: the US Arms Export
Control Act 1968 regulates both arms brokering and the export
of military services through the US Department of State Office
of Export Controls, which oversees the International Transfer
of Arms Regulations (ITAR)—granting licence to those companies
who meet the requirements. The Government maintains the right
to take action to confirm that licensing provisions are being
met. In addition to this licensing procedure, congressional notification
is required before the US Government approves exports of defence
services worth in excess of $50 million.
37. In the UK, the Department of Trade and
Industry is currently responsible—in consultation with the
Home Office and the Foreign and Commonwealth Office—for
overseeing the parameters of the existing strategic arms export
controls in the UK.
38. It is recommended that the industry
regulatory authority be established within the FCO for these purposes.
The FCO will have the greatest knowledge of what constitutes the
UK's national interests and objectives overseas, and—thus—the
most informed judgment of such when it comes to determining licensing.
(a) This authority must be exercised in co-ordination
with the DTI's oversight of arms exports.
(b) This authority must be exercised in co-ordination
with the Ministry of Defence for the purposes of determining any
cross-overs or potential conflicts between the activities of a
UK PSC/PMC operating abroad and British military forces operating
abroad (particularly special forces).
(c) The body constituted within the FCO with
responsibility for this should report to Parliament (via either
the Secretary of State or Ministers for the FCO, or via the Foreign
Affairs Committee of the UK Parliament) on a regular basis (to
be determined, but not less than twice yearly) all of the applications
and decisions taken on these—with full transparency.
(d) This authority must be exercised in co-ordination,
where necessary, with the Security Industry Authority responsible
for overseeing the parameters of the Private Security Industry
Act 2001 (see below).
FOREIGN VS
DOMESTIC OPERATIONS
BY UK PSCS/PMCS
39. This author recommends that the UK government
integrate—to whatever degree required based on explicit
cross-overs—its approach to regulating the activities of
PSCs/PMCs operating abroad/externally with its approach to regulating
the activities of PSCs domestically (currently via the Private
Security Industry Act 2001 and the Security Industry Authority).
At the moment, the transience of numerous companies (for example,
Control Risks Group or Grupo-4) between domestic operations in
the UK and external operations abroad means that numerous UK companies
will fall under both regulatory regimes, as the activities—in
many cases (ie manned guarding)—are the same. This will
have an impact on the legislation on these issues.
INTERNATIONAL REGULATORY
OPTIONS
40. As is clearly acknowledged both in the
Green Paper and in this report, with an effective and comprehensive
international regulatory regime for the activities and actors
outlined here, any such regulation will be only partially effective;
should a company not wish to be subject to the regulations put
in place under this regime in the UK, it can currently (and will
still be able to once any regime is put in place subject to this
report) simply move offshore or to another country without such
regulations (even within the European Union currently) to operate
from there.
41. Therefore, any national regulatory regime
will be incomplete without complementary international regulations—you
cannot have effective national regulation without international
regulation.
42. The existing international legal instruments
(the 1989 UN General Assembly International Convention against
the Recruitment, Use, Financing and Training of Mercenaries, the
1977 First Additional Protocol to the Geneva Conventions, and
the OAU Convention for the Elimination of Mercenarism in Africa)
are either insufficient, corrupted or unusable for legal (ie prosecutorial)
purposes (as discussed above).
43. This reports recommends most strongly
that the UK government encourage—through all means available—the
same approach at the international level as is outlined in this
report, generally through the rewriting of the existing conventions,
particularly the UN General Assembly International Convention
against the Recruitment, Use, Financing and Training of Mercenaries,
as this should be the central pillar of any international regulatory
regime for the activities of PSCs/PMCs.
44. This approach should also be pushed
at the European Union level, as part of attempts to standardise
a common approach to law enforcement, legislative, juridical and
security considerations across EU Member States.
CONCLUSION
45. The UK is in a unique position currently
to influence the international approach to regulating the activities
of such private actors; it must do so—partially by leading
the way through domestic legislation which will fairly but restrictively
approach the regulation of this sector.
46. However, with an effective international
regime in place, national regulation remains only part of the
answer. As long as governments and commercial companies require
armed protection or, indeed, armed military support against a
rebel insurgency, PMCs will find a willing market for their skills
and capabilities. The role that they play in these conflicts will
remain of concern: as long as the international community is unable—or
unwilling—to provide a regional security solution, this
demand for support will continue to be met from the private sector.
Given the current regional instability and chaos, this continued
"privatisation of peacekeeping" may become the best
option for a Developed World unwilling or unable to intervene
in the increasing chaos of regional conflict.
Dr Kevin A. O'Brien
June 2002
5 While the focus of attention on PMCs grew initially-and
continually-from an interest in tracking the involvement of EO
in African countries, it is unlikely that if EO had not come from
the background it did (its personnel were almost exclusively former
military and police special forces who served in the South African
security forces during the apartheid era), such attention and
reproach would not have been focused on the PMC sector as a whole. Back
6
Ken Silverstein, "Privatising War: How affairs of state
are outsourced to corporations beyond public control", The
Nation (28 July-4 August 1997): . Back
7
"Aggression is the use of armed force by a State against
the sovereignty, territorial integrity or political independence
of another State, or in any other manner inconsistent with the
Charter of the United Nations, as set out in this Definition"
: United Nations General Assembly, Definition of Aggression
Resolution 3314 (1974): Article 1. This definition includes the
use of "agents of a State" in its understanding. Back
8
French intelligence, according to the New York Times, allegedly
used the company Geolink as a cover for the provision of
these mercenary forces: "French Covert Actions in Zaire on
behalf of Mobutu", AFP 2 May 1997; UNDHA Integrated Regional
Information Network, IRIN Emergency Update No. 74 on the Great
Lakes (8 January 1997): www.reliefweb.net; Robert Block, "Mobutu
calls up the dogs of war", The Sunday Times (5 January
1997): 18; John Swain, "War-hungry Serbs join Mobutu's army",
The Sunday Times (9 March 1997): 16; "Fighting intensifies;
militia accuses mercenaries of joining", SAPA-AP (30 June
1997). Back
9
Peter Klerks, "South African Executive Outcomes or Diamonds
Are A Grunt's Best Friend", Intelligence Newsletter
No.55, 10 March 1997; Pratap Chatterjee, "Mercenary Armies
and Mineral Wealth", Covert Action Quarterly (Fall
1997). Back
10
Enrique Bernales, The Right of Peoples to Self-Determination
and its Application to Peoples under Colonial or Alien Domination
or Foreign Occupation: Report on the question of the use of mercenaries
as a means of violating human rights and impeding the exercise
of the right of peoples to self-determination, Geneva: UNCHR,
17 January 1996: sA22. Back
11
See, for example, the extensive writings of this author on this
topic: Kevin A. O'Brien, "Military Advisory Groups and African
Security: Privatised Peacekeeping?", International Peacekeeping
5:3 (Autumn 1998): 78-105; "Private Military Companies in
Africa 1990-98" in Kayode Fayemi & Musa al-Fateh (eds),
Mercenaries in Africa (Pluto Books, 1999); "Privatising
Security, Privatising War? The New Warrior Class and Regional
Security" in Paul Rich (ed), Warlords in International
Relations (Palgrave Press, 1999); "PMCs, Myths and Mercenaries:
The Debate on Private Military Companies", RUSI Journal
(February 2000): 59-64; "Freelance Forces: Exploiters of
old or new-age peacebrokers?", Jane's Intelligence Review
10:8 (August 1998): 42-46. See also Kim Richard Nossal, "Roland
Goes Corporate: Mercenaries and Transnational Security Corporations
in the Post-Cold War Era", Civil Wars 1:1 (Spring
1998); J Cilliers and R Cornwell (eds), Peace, Profit and Plunder:
The privatisation of security (Pretoria: Institute for Security
Studies, 1999); William Reno, "African Weak States and Commercial
Alliances", African Affairs, No.96 (1997); Elizabeth
Rubin, "An Army of One's Own", Harper's Magazine
Vol. 294, No 1761 (February 1997); Ken Silverstein, "Privatising
War: How affairs of state are outsourced to corporations beyond
public control", The Nation, (28 July-4 August 1997). Back
12
Interview, DSL officer-London, June 1998. Back
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