House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Minutes of Evidence

APPENDIX 7

Memorandum from Rt Hon Bruce George MP, Chairman, Defence Select Committee and Simon H Cooper, Post-Graduate Student, University of Leeds

THE REGULATION OF PRIVATE MILITARY COMPANIES: A REACTION TO THE FOREIGN OFFICE GREEN PAPER

Throughout history, the "State" has engaged various agencies either directly or indirectly to fulfil its defence and security obligations. Offensive and defensive actions were delegated to the military and the maintenance and policing of public order to policing bodies. The individuals concerned have either been directly employed by the state, privately contracted or subject to duty through feudal obligation. The history of the British army is one of feudal levies, conscription and the hiring of foreign soldiers notably from Germany in the 18th century and Nepal in the 19th century. In fact warfare during much of British history was a private activity. Up to the middle of the 18th century the Colonels of Regiments were virtually all military entrepreneurs. Similar themes existed abroad. Indeed in global terms the last 3,000 years has witnessed an unclear line between the military, militias, professional and conscripted armies. Privatisation of "military" activities, traditionally considered to be the responsibility of the State is of course still prevalent in the modern era. Private military companies (PMCs), offering services ranging from doctrine formation to hands-on military assistance have been accepting contracts from Governments across the world since their inception in the 1960's. Indeed the role of the first PMC, founded in 1967 by David Stirling progressed from combat training and support to the provision of "Military Advisory Training Teams to foreign government clients overseas, particularly in the Middle East but also in Africa, Latin America and East Asia."[21]

The development of PMCs is directly linked to a global trend whereupon some Governments are increasingly looking to out-source military tasks to private firms for various different reasons. Indeed a recent report prepared as part of the US National Defense Authorization Act revealed that the US Department of Defense employs 734,000 private-sector employees per annum compared with a civilian workforce of 700,000.[22] Of the 734,000 individuals sub-contracted by the US Government, the vast majority is employed to perform non-combat tasks such as the research and development of various defence systems. Nevertheless, a minority is engaged at the sharper end of US foreign policy. Indeed the decision taken by the Clinton administration to hire DynCorp, a US based company, to execute its unarmed Kosovo monitoring responsibilities illustrates the movement towards the privatisation of military activity. The reason for the American decision was twofold as Kevin O'Brien identifies. Firstly, the US Government did not believe it would be right to send highly trained yet unarmed personnel into a potentially dangerous situation and secondly, it ensured that US forces would not be exposed to a fragile security situation that was little understood or domestically supported.[23]

Closely behind the US in the quasi privatisation of the military has been the UK. A study of British House of Commons Defence Select Committee reports from the last 21 years reveals the evolution of this process. Private Finance Initiatives (PFI) and Public-Private Partnerships (PPP) have been regularly documented by the Committee. Indeed reports in recent years have illustrated the selling-off of married quarters for military personnel, the use of contract security to guard military premises, the outsourcing of emergency aid haulage duties[24] and the proposed PPP for the Defence Evaluation Research Agency (DERA). According to Bruce George MP, "privatisation is getting closer to the front line to the extent that the military's monopoly in war-fighting is over."

As the demand for them has increased, PMCs have developed to offer an alternative to the use of national militaries. This has certainly not happened without criticism. Alex Vines writes of "private military companies that engage in mercenary-like activities". Indeed he goes on to say that

Doug Brooks, President of the International Peace Operations Association (IPOA) offers a different perception. Under the umbrella of "military service providers", he suggests that PMCs are essentially "lawful profit-seeking companies with profit making structures. . .[providing]. . .the whole gamut of legitimate services that were formally provided by national armies".[26] To a significant extent, national armies still provide these services. The fact nevertheless remains that in some cases they either cannot cope or do not want to get involved. This does not mean "government [should] get out of war completely and leave the whole field to private industry".[27] It means that licit PMCs are necessary entities in the modern world.

Most PMCs are most definitely not "mercenaries". They are not intent on making money regardless of the political or human consequences. Whilst Alex Vines and a number of other commentators view them in an almost entirely negative light, this paper argues that if properly regulated, PMCs can have a positive impact when used. In the words of Doug Brooks, their "efficiency makes them ideal for addressing Africa's military security problems at affordable prices".[28] PMCs have evolved slowly and are here to stay. They are not a new phenomenon and will certainly not fade away to extinction. Indeed their presence in the international community is becoming absolutely vital as States are left with few alternatives to solve challenging strategic problems.

The entire debate surrounding PMCs has been muddied by a blur in the distinction between the companies themselves and the age-old exploits of mercenaries. There are fundamental differences between the two that must be respected. In simplistic terms, mercenaries have no ethical principles; essentially they fight for the highest bidder. Of course providing an exact, all-encompassing definition of what being a mercenary means is much harder. There have been many attempts ranging from the 1972 Organisation of African Unity (OAU) Convention for the Elimination of Mercenaries to the 1989 UN Convention Against the Recruitment, Use, Financing and Training of Mercenaries. This paper is not the arena to explain them all in detail. Each have problems which out-way their advantages. Perhaps the most acceptable definition of all is that presented by Juan Carlos Zarate. He defines a mercenary "as a soldier-for-hire, primarily motivated by pecuniary interests, who has no national or territorial stake in a conflict and is paid a salary above the average for others of his rank."[29] Indicating that a mercenary is a soldier for hire is particularly important as "etymologically. . .`soldier' carries the meaning `he who fights for pay.'"[30] Obviously, in times of actual conflict individuals will continue to volunteer for active service regardless of financial reward because they have a passion for the cause. However, regardless of whether he is in favour of the cause, a mercenary will only offer his services on the basis of financial reward. It is therefore essential to stress that mercenaries are not just soldiers but in the words of Zarate, "soldiers-for-hire".

The authors of this paper abhor any use of mercenaries; indeed one only has to look at the illegitimate death and destruction they have caused over their dismal history. Most PMCs on the other hand have a positive role to play in ensuring peace and security in unstable countries. Regarding them all in the same light as mercenaries is as academically naïve as it is unfair.

As a pre-cursor to discussing the possibilities for regulation, it is first prudent to provide an analysis of two major PMCs; in this case, Sandline International and MPRI. The authors have chosen these two firms as they respectively represent the "hard" and the "soft" ends of the scale. This analysis will also ensure that the terms of reference are more clearly understood before the discussion of regulating PMCs begins.

SANDLINE INTERNATIONAL

In a television interview broadcast in May 2000, the head of Sandline International, Lieutenant Colonel Tim Spicer was asked whether he thought the then crisis in Sierra Leone would not have happened if Sandline and what the interviewer called its "mercenary troops had been able to stay in place?"[31] Before responding, Spicer stated his belief that there is clear blue water between private military companies and old-style mercenaries. Spicer described PMCs as "formed bodies that have a sort of corporate entity and they have, in the absence of other regulations, self-regulating rules" who will "only work for the good guys". On the other hand, he spoke of "old" mercenaries having "no common doctrine. . .no common training standards, they'll work for the highest bidder."[32] In saying this, Spicer was reiterating sentiments he expressed in an interview to The Daily Telegraph published in its features section on 3 December 1999. Spicer stated, "The word mercenary conjures up a picture in people's minds of a rather ruthless, unaligned individual, who may have criminal, psychotic tendencies". He went on: "We [Sandline International] are not like that at all. All we really do is help friendly, reasonable governments solve military problems; it's not all about fighting—it's more about organisation, training, command and control."[33] As an extension of this, Kevin Clements' identifies that the distinguishing difference between PMCs and Mercenaries lies in the fact that "in the majority of cases they [PMCs] have worked in collaboration with governments as opposed to attempting to destabilise them as traditional mercenary groups sometimes do."[34]

Founded in 1997, the London-based firm Sandline International incorporate the self-regulating rules and corporate entity that Colonel Spicer referred to during the May 2000 interview. The Sandline website has a section on the background, mission and policy of the firm. In the policy section they are keen to point out "that the company only accepts projects which, in the view of its management, would improve the state of security, stability and general conditions in client countries."[35] It goes on to stress that Sandline will only work for internationally recognised Governments, Institutions and Liberation Movements that are:

— Legal and moral.

— Conducted to the standards of first world military forces.

— Where possible, broadly in accord with the policies of key western governments

Colonel Spicer has since left the firm and set up a new company called Strategic Consulting International (SCI). SCI's promotional literature appears to be very similar to that of Sandline International. Indeed like Sandline, it claims to "Operate within the law" and maintain "Respect for human rights".[37] When interviewed for a report in the Financial Times, Spicer stated that "Our [SCI's] preference is to help the national forces of a legitimate government to help themselves, rather than do the job for them," adding "That does not mean to say we avoid going to the combat zone."[38]

Eeben Barlow, CEO of the now defunct Executive Outcomes (EO), consistently made similar claims. In 1996, Barlow stated, "We are a professional military advisory group working only for recognised governments".[39] EO drew its personnel in main from the former South African Defence Force (SADF) although some of its more senior personnel previously worked for a South African Special Forces' death-squad somewhat ironically known as the "Civil Co-operation Bureau".[40] When in operation, the services offered by EO compare similarly to those still advertised by Sandline and SCI. These include advice, training, operational and intelligence support, humanitarian operations, strategic communications and non-conflict support to law and order.[41]

MPRI

Incorporated in 1987 by eight former senior military officers and based in Alexandria, Virginia, Military Professional Recourses Incorporated (since 1996, just MPRI) was originally started to provide doctrine for the US Armed Forces. With close links to the US government and a significant level of custom from the US Army, MPRI has grown in to a serious player in the private military sphere with global revenues of $56 million (1999 Forecast). Statutory regulation in the US sets MPRI apart from firms like Sandline in that MPRI must obtain a license from the State Department in order to execute it's services outside the boundaries of the US.

Senior officials within MPRI are content with this arrangement for a number of different reasons, all of which were explained to us when we met the Vice President of International Operations for MPRI, Harry E. Soyster (Retired Lieutenant General US Army) at the House of Commons. Mr. Soyster's explanation was three-fold:

These words were reflected closely in a contribution Mr. Soyster made to a PMC discussion group on the Internet. In the same contribution, he stated the reasons for MPRI's positive attitude towards public relations. "We handle media by trying to answer all questions. There is virtually nothing that cannot be known about the company. I have talked to 7-800 members of the press, authors, academia, etc. We get a lot of free publicity and transparency is our ally."[43]

The real and fundamental difference between MPRI and a company like Sandline International is that the former does not engage in combat situations. It is part of the company doctrine that none of MPRI's employees carry a gun. This was confirmed by Soyster who when interviewed by the Christian Science Monitor stated that "No one has ever carried a gun while at MPRI. . .Sure, it gets in the way of business every now and then, but that's all right."[44] Nevertheless, MPRI boast similar capabilities to Sandline offering combat training centres, equipment training, force management and development, peace keeping and logistics management support as well as other functions such as police and coastguard training.[45] Close links with the Pentagon, Department of State and CIA have enabled MPRI to secure several valuable contracts including one in July 1996 to supply the Bosnian Federation with 46,000 M16 assault rifles, 45 M-60 tanks, 15 helicopters and a host of other military hardware. Added to this, 163 MPRI personnel were sent to Bosnia and Turkey to oversee the re-equipping and re-training of the Bosnian Army.[46]

Tom Marks, a contributing writer to Soldier of Fortune Magazine described MPRI as "a glorified transportation corps, as opposed to being a military outfit. They're almost like the FedEx of government service".[47] Nevertheless, his accusation that they are "so desperate to avoid being called mercenaries that they just scratch the surface"[48] seems to miss the point. If the surface is considered to be the soft end of private military activity, the fact remains that MPRI would not want to "scratch" any deeper as their company policy would prevent them from doing so. MPRI are, as some would say, a "passive" PMC[49], providing services up to and including training and support. Sandline and the now defunct South African operation Executive Outcomes are on the other hand "active" in that they provide combat support.

This is an issue addressed by Tim Spicer in his autobiography. Spicer argues that PMCs are not passive and do more than just a guarding role. Instead of advising from the sidelines, to be defined as a PMC, a firm must become actively involved in providing what he terms "practical military help in an acceptable form to legitimate governments".[50] If Spicer's definition of a PMC were used as the benchmark for deciding whether a firm is or is not a PMC, because of its policy of non-combat, it would be difficult to include MPRI. It is for this reason that Spicer's definition is too restrictive. MPRI and Sandline are both PMCs. It is just that MPRI operate at the "softer" end and Sandline at the "hard" end of the PMC spectrum. There are similar divisions of operational activity in the guarding sector of the private security industry. For example, Group 4 will not undertake the guarding of public streets and Rights of Way whereas other small to medium private security companies will.

It is "hard" PMCs such as Sandline and the late EO that has been a bone of contention for the United Nations Special Rapporteur on Mercenaries, Mr. Enrique Ballesteros. The safeguards that Tim Spicer is so keen to promote have not been enough to prevent accusations against Sandline and similar firms. Mr. Ballesteros is one of many who disapprove of private companies fulfilling a role traditionally belonging to the state and its armed forces. It is his opinion that such companies recruit traditional mercenaries to perform any combat support role, an accusation that has been vehemently denied by PMC operations. The authors of a paper submitted to the Special Rapporteur point to a recent United Nations (UN) document that supports this view claiming that mercenaries are often employed by security agencies.[51] This paper is not the place to begin such a debate; nevertheless it does illustrate a primary reason why enforceable legislation is so necessary to regulate the activity of PMCs.

Whether they engage in "hard" or "soft" activities, PMCs require some form of statutory regulation. However, as the Green Paper on PMCs makes very clear, deciding what type will be an extremely difficult decision for the Government to make should they eventually publish a White Paper. Let there be no misunderstanding, regulating PMCs in a watertight fashion will be virtually impossible. One only has to look at the inability of the International community to properly regulate the private security industry for an indication of how hard it would be to comprehensively regulate all the activities of private military companies. The authors of this paper would ideally like to see the UN draw up some legally enforceable legislation to replace the flawed 1989 Convention against the Recruitment, Use, Financing and Training of Mercenaries. If this proves impossible, EU legislation could be a viable alternative. The authors acknowledge the extreme difficulty involved in introducing International legislation. It is quite clear that companies wishing to engage in mercenary activity will endeavour to do so regardless of the penalties. Nevertheless, this must not be seen as a deterrent. Besides sending an irrepressible message out to individual mercenaries and illicit military companies that they would face stiff penalties if caught, International legislation would enable decent companies and responsible Governments the world over to show that their "houses are in order". Until such a time arises, the Government must concentrate on the situation in Britain, something it clearly intends to do having published the Green paper back in February 2002.

The Green Paper sets out the different regulatory schemes between paragraphs 70 and 76. There is no need to go through each one; to do so would be repetition of the Green Paper itself. Opinions are what is required and of the six discussed the fifth; namely "A General Licence for PMCs/PSCs" is in our view the best.

Under the general license scheme, only companies with a license would be able to bid for contracts abroad. It would obviously be up to the Government to draw up a list of activities that it deemed severe enough to warrant a license. Constant appraisal of this list would then be necessary to ensure that it remained up to date with new developments in the field. There are many people more qualified to decide what activities should be on this list. Nevertheless, the following provide a rough guide:

— Combat support and training

— Actual combat

— Peace keeping

— Peace enforcement

— Mine clearance

— Logistical support

Some companies take offence to the term PMC, preferring the less contentious title of private security firm. The adoption of the approach outlined above would avoid the need to define what is and is not a PMC, the difficulty of which this paper has already touched on. The need for a license would be based on activities undertaken and not the nature or name of the company concerned. The terms of the license itself would have to be strict enough to deter irresponsible firms and ensure that only companies that fulfil a comprehensive list of criteria are able to gain one.

Rather than having to establish a completely new body to issue the licenses, one option which the FCO could consider is using the Security Industry Authority (SIA) that was established as part of the 2001 Private Security Act.[52] Whilst this would require a degree of subordinate legislation via statutory instruments, it would not necessitate new legislation or amendments to any previous Acts of Parliament. Parliamentary oversight of the license issuing process would be essential with a number of Parliamentary Committees, individually or collectively participating. The House of Commons Defence Select Committee, the Foreign Affairs Select Committee or the Home Affairs Select Committee could all have a role to play, either separately or by operating along the lines of the so-called Quadripartite Committee. By inviting officials from the SIA to give evidence as well as representatives from the various companies involved, Parliament would be able to oversee the process, investigating any claims of malpractice or corruption as and when they arise.

As we have already said, the Green Paper suggests various methods of regulation, none of which is ideal. Whatever scheme is introduced will undoubtedly be abused to some extent. Mercenaries will continue to practice as will a minority of illegitimate companies that choose to operate without a license. This is a reality that must be accepted regardless of the discomfort it causes. It should not however be a reason for failing to act. British legislation of the type set out above would enable the majority of British PMCs to show that they are legitimate firms practising in a competitive industry that will continue to flourish in the 21st century.

BIBLIOGRAPHY

Kevin A O'Brien. PMCs, Myths and Mercenaries: The Debate on Private Military Companies. RUSI Journal, February 2000 Volume 145 No 1.

Ellen Nakashima—Washington Post Staff Writer. Pentagon Hires Out More Than In. In U.S. Trend, Contract Workforce Exceeds Civilian Ranks, The Washington Post, Tuesday April 3, 2001.

Alex Vines: Mercenaries, Human Rights and Legality in Abdel-Fatau Musah and J Kayode Fayemi, Mercenaries: An African Security Dilemma. Pluto Press 2000.

Doug Brooks. Hope for the "Hopeless Continent": Mercenaries. Traders: Journal for the South African Region. www.tradersP.co.za/index.html Issue 3. July-October 2000. See: http://www.sandline.com/hotlinks/00—Brooks.pdf.

Joseph Heller, Catch-22. (New York: Simon & Schuster Inc 1955). Scribner Paperback edition 1996.

Lieutenant Tim Spicer OBE, An Unorthodox Soldier: Peace and War and the Sandline Affair. Mainstream Publishing 1999.

Juan Carlos Zarate, The Emergence of a New Dog of War: Private International Security Companies, International Law, and the New World Disorder. Copyright 1998 Board of Trustees of the Leland Stanford Junior University Stanford Journal of International Law, Winter 1998.

Charles Tilly, Coercion, Capital and European States, AD 990-1990. Cambridge: Basil Blackwell, 1990.

Lateline, 18 May 2000: Dogs of War. Australian Broadcasting Corporation. See: www.abc.net.au/lateline/archives/s128621.htm.

Judith Woods interview with Lt. Colonel Tim Spicer, "We don't operate in the shadows", UK Daily Telegraph, 3 December 1999.

Text submitted by Mr Kevin P Clements, Secretary General, International Alert. 21 November 1999. Submitted to the Foreign Office for a Wilton Park Conference on the Privatisation of Security: Framing a Policy Agenda.

Sandline International Website, Overview of the Company Section. See http://www.sandline.com/site/index.html.

Strategic Consulting International Website, "About Us" Section. See http://www.sci2000.ws/.

By Jimmy Burns, Francesco Guerrera and Andrew Parker. Sandline Chief Sets Up New Company PRIVATE MILITARY WORK MP URGES GOVERNMENT TO REGULATE MERCENARIES, Financial Times, 5 March 2001.

Taken from David Shearer, Private Armies and Military Intervention, International Institute for Strategic Studies, Adelphi Paper 316, Oxford University Press.

Jean-Francois Bayert, Stephen Ellis & Beatrice Hibou. The Criminalization of the State in Africa. African Issues Series, James Curry & Indiana University Press 1999.

William Reno. Warlord Politics and African States. Lynne Reinner Publishers London.

Interview with the Vice President of International Operations for MPRI, Harry E Soyster (Retired Lieutenant General US Army) at the House of Commons, 2000.

Justin Brown—Staff writer for the Christian Science Monitor, Washington. "The rise of the private-sector military", The Christian Science Monitor. Wednesday 5 July 2000.

MPRI Promotional Literature. Capabilities Section.

Tim Ripley, Mercenaries: Soldiers of Fortune, Parragon Publishers 1997.

Daniel Burton-Rose and Wayne Madsen. Multinational Monitor, Corporate Soldiers, The US Government Privatizes the Use of Force. March 1999, Volume 20, Number 3. See www.essential.org/monitor/mm1999/mm9903.07.html.

Samia Kazi Aoul, Emilie Revil, Bruno Sarrasin, Bonnie Campbell with collaboration of Denis Tougas. Towards a Spiral of Violence? "The Dangers of Privatising Risk Management of Investments in Africa". Mining Activities and the Use of Private Security Companies. Montreal February 2000. Submitted to Mr Enrique Bernales-Ballesteros, Mr Lloyd Axworthy and Mr Robert Fowler.

Private Security Industry Act 2001, Chapter 12. Received Royal Assent on 11 May 2001.

Bruce George MP and Simon Cooper

July 2002

21 Kevin A O'Brien. PMCs, Myths and Mercenaries: The Debate on Private Military Companies. RUSI Journal, February 2000 Volume 145 No 1, p 6.0. Back

22 Ellen Nakashima-Washington Post Staff Writer. Pentagon Hires Out More Than In. In U.S. Trend, Contract Workforce Exceeds Civilian Ranks, The Washington Post, Tuesday 3 April, 2001 P A19. Back

23 Kevin A O'Brien. Op Cit, p 59. Back

24 Eddie Stobart Ltd lorries were used to transport aid to Kosovo. Back

25 Alex Vines: Mercenaries, Human Rights and Legality in Abdel-Fatau Musah and J. Kayode Fayemi, Mercenaries: An African Security Dilemma. Pluto Press 2000, p 188. Back

26 Doug Brooks. Hope for the "Hopeless Continent": Mercenaries. Traders: Journal for the South African Region. www.tradersP.co.za/index.html Issue 3. July-October 2000. See: http://www.sandline.com/hotlinks/00-Brooks.pdf. Back

27 Joseph Heller, Catch-22. (New York: Simon & Schuster Inc. 1955). Scribner Paperback edition 1996, p 269. Back

28 Doug Brooks. Op Cit. See also Lieutenant Tim Spicer OBE, An Unorthodox Soldier: Peace and War and the Sandline Affair. Mainstream Publishing 1999, p 41. Back

29 Juan Carlos Zarate, The Emergence of a New Dog of War: Private International Security Companies, International Law, and the New World Disorder. Copyright 1998 Board of Trustees of the Leland Stanford Junior University Standford Journal of International Law, Winter 1998. Back