CHAPTER 5—THE UNITED KINGDOM PERSPECTIVE
5.1 INTRODUCTION
From the outset it is essential to realise that
there are many state or government agencies within the United
Kingdom who have a vested interest in seeing PMCs regulated. Some
of these agencies require this to happen to ensure that they can
make legal and effective use of PMCs, whilst others see it as
a way of putting tortuous pressures on PMCs and thus driving them
out of what is a highly competitive and lucrative market. The
Government of the UK now accepts that it must work towards a positive
international legal framework aimed at conflict prevention and
support of human rights, but concurrently does not result in unreasonable
operational restrictions. It accepts that it must display greater
transparency about defence activity if it is to convince the public
that its defence policies are responsible and that it is operating
an ethical foreign policy. This has been laid out in the paper
"The Future Strategic Context for Defence" within the
chapter "Legal Dimension, International Law and Ethical Considerations".1
5.1.1 THE
LEGAL DIMENSION
AND INTERNATIONAL
LAW
International Law governs both the ability of
states to resort to armed conflict, and the way in which they
conduct it. The obligations of states in their conduct of armed
conflict are derived from relevant international conventions such
as the Genocide Convention 1948 and the Geneva Conventions 1949.2
States can expect that their actions will be the subject of ever
increasing judicial scrutiny in international courts in the future.
Once fully established, the International Criminal Court (ICC)
will focus on the criminal responsibility of individuals rather
than states. The development of the ICC reflects a growing awareness
and acceptance of the need to have an enforcement mechanism that
can address serious violations of human rights anywhere in the
world and international humanitarian law. International Law may
develop in ways that impose further limitations on methods of
warfare and this may impact on the development and procurement
of weapon systems. The Government will also need to be alert to
the possible impact of other areas of the development of international
law, such as the Law of the Sea and of domestic legislation.
5.1.2 THE
LEGAL DIMENSION
AND ETHICAL
CONSIDERATIONS
In defence, as in other areas, recent years
have seen growing scrutiny of the ethics and morality of Government
policy, partly fuelled by the amplified numbers of pressure groups
and NGOs. Both at national and international level, such organisations
have proved ever more influential in shaping policy, the most
notable defence example being the accession to the Ottawa Convention
banning anti personnel mines. Other areas of defence activity
coming under scrutiny are the rights of civilians in conflict,
the morality of certain types of weapons, the use of child soldiers,3
and the control of defence exports and small arms proliferation.4
It is therefore important that the MOD and Government work together
along with NGOs in a number of areas to help enhance international
security and stability. These areas include tackling the funding
of conflict through illicit trade, improving democratic accountability
in the defence and security sphere, combating small arms proliferation,
disarmament, demobilisation and reintegration, controlling the
activities of PMCs, and efforts to relieve potential aggravators
of instability such as poverty and resource shortages.
5.2 DEFENCE DIPLOMACY
AND DEFENCE
MANAGEMENT
It is important that we first examine the United
Kingdom's Defence Diplomacy and Defence Management and what it
encompasses. The Defence Diplomacy Mission statement is as follows:
"to provide forces to meet the varied activities
undertaken by the MOD to dispel hostility, build and maintain
trust and assist in the development of democratically accountable
armed forces, thereby making a significant contribution to conflict
prevention and resolution."5
There are three specific military tasks that
underpin and contribute most directly to the Defence Diplomacy
Mission they are as follows:6
Military Task 16—Arms Control, Non Proliferation,
and confidence and security building measures.
Military Task 17—Outreach Activities designed
to contribute to security and stability in Central and Eastern
Europe, particularly Russia, but also extending to the Trans-Caucasus
and Central Asia, through bilateral assistance and co-operation
programmes.
Military Task 18—other Defence Diplomacy
activities, covering military assistance programmes with overseas
military forces and defence communities not covered under outreach.
The Government therefore has policy in place
to deal with the pursuit of the nation's interests abroad, but
for some years now it has openly harboured concerns regarding
the regulation and legislation of the PMC industry. This industry
has hubs in the United States, South Africa and the UK. The UK
Government also feels PMCs that supply personnel or related military
products and services "could have, and in some cases would
have an adverse impact on the implementation of its foreign policy
objectives"7. Rather than "force the industry offshore"
the Government therefore needs to regulate, and where possible,
utilise PMCs to pursue its overseas objectives in support of the
nation's armed forces. Many PMCs came into existence as a direct
result of the chain of events following the collapse of the Iron
Curtain and the demise of Apartheid in South Africa. This in turn
saw the worldwide downsizing of military forces and with it the
associated reduction in military capability. This threw a large
number of military personnel onto the world job market and additionally
saw large amounts of surplus military equipment becoming available
to arms dealers, particularly from Eastern European Countries.
The end of the Cold War effectively introduced the new era of
"Hot Peace" and western democracies such as the UK have
had to deploy forces to "fire fight" around the globe.
Due to the increased inability of the MOD to reconcile its deployable
armed forces with its global commitments, the government is having
to explore ways of managing its defence resources thus ensuring
that its military "books can be balanced". The key features
of defence management thus encompass the outsourcing of military
contracts to commercial companies including anything from catering
and administration to telecommunications and logistics. Other
features also include leasing, perhaps as a substitute for arms
sales, and Private Finance Initiatives. As a result of these defence
management policies, commercial companies are not only becoming
increasingly interested in this profitable industry but are actively
being encouraged to competitively tender for these government
contracts. This subsequently encourages the growth of companies
specialising in the military environment and the rapid expansion
of PMCs offering their goods and services to the FCO, MOD and
DFID.
5.3 DFID AND
THE DEFENCE
ADVISORY TEAM.
The Defence Advisory Team (DAT) consists of
both civilian and military personnel including a DFID representative.
The advice and assistance supplied by the DAT is funded jointly
by the MOD, DFID and the FCO from the Conflict Prevention Fund.8
The DAT exists to provide "in country"
advice on defence management and security sector reform issues
to countries that request such assistance. The areas in which
they target their assistance includes Defence Reviews, Force Structures,
Financial Management, Governance and Civil-Military Relations,
Human Resources Management and Development, Change Management,
Organisation and finally Procurement and Logistics.9 Most of these
are areas in which some PMCs also imagine that they can target
their expertise. By forming the DAT, the UK Government sees itself
as being able to make a significant contribution to conflict prevention,
reduction and resolution. The creation of the DAT is therefore
seen as a tool to assist in the wider process of security sector
reform and contribute to the UK's overall conflict prevention,
development and defence diplomacy initiatives. In comparison to
PMCs, DAT sees itself as being able to offer long term support
in order build the internal capacity of the state that it is advising,
whereas it sees PMCs as being an unaccountable risk and not in
line with good governance practice. The major PMCs operate in
a highly commercial, professional and corporate manner, cultivating
reputations for skill, efficiency and cost effectiveness. It is
this type of PMC that makes a profit by forcing an end state to
the conflict it is involved in. This contrasts directly with the
traditional mercenary ethos that is intent on ensuring a profitable
income only by prolonging wars. In order to achieve this desired
end state, the PMC will act as a force multiplier dramatically
enhancing the effectiveness of the client's existing military
forces.
DFID's goal is in conflict resolution and the
eradication of world poverty, therefore any form of conflict management
that involves a UK PMC in prolonged combat, could be perceived
as being in conflict with that goal. As the DAT is accountable
to the UK Government, it is able to receive support from the FCO,
DFID and the MOD should it so wish, but currently PMCs do not
enjoy such good civil-military cooperation and sustainability.
The typical client of a PMC is likely to be a poor and vulnerable
sub-Saharan country that is rich in mineral deposits and is looking
for a "quick fix" solution. These countries are unable
to afford the costs of developing armed forces as supplied by
western democracies and therefore the cheaper less nationally
overt PMC is a more attractive option. The problem is consequently
that the host nation's lack of funds could ultimately lead to
corruption of its own forces by the PMC and ultimately economic
exploitation of the mineral deposits. DFID has however employed
PMCs in a non-combat role to carry out de-mining activities in
Kosovo.10 This is seen as neither suspicious nor unethical as
the company has been sponsored and contracted by the UK to carry
out activities to train and equip a nation's armed forces to de-mine
their own country post conflict. This directs that there must
be a different form of regulation for those PMCs who want to engage
in combat roles and those who want to be involved in training,
equipping and through life support.
Perhaps one of the greatest difficulties of
employing PMCs is the type of message that it sends to the rest
of the world. On the one hand it is either advertising the abrogation
of governmental responsibility, or is it suggesting that the UK
really is not serious in it's intent or pursuit of it's foreign
policy objectives. In the early 1980's prior to the Falklands
Conflict, the Government of the United Kingdom declared that she
was to withdraw the ice patrol ship HMS Endurance from the Falkland
Islands. This sent a message to the government of Argentina that
Britain was not that interested in its sovereign territory in
the South Atlantic, whilst far from being the only factor in encouraging
the Argentinians to seize the Falklands, it certainly contributed
to their precipitative behaviour. Whilst on the other hand the
US PMC, MPRI, is seen by many as merely agents of US foreign policy.
This then calls into question what the real aim of the US is and
why does the US Government want to train a country's armed forces
or re-organise that country's defence ministry?
DFID sees a degree of utility in PMCs but current
individual opinion suggests that their employment and regulation
must be strictly on a case by case basis and that the PMC needs
a form of encouragement to ensure that the job is completed. PMCs
must have a willingness to be accountable for all their actions
and there must be a demonstration of cost versus benefit in comparison
to those operations carried out by national armed forces and mandated
for by the United Nations. Ultimately a country's indigenous armed
forces should be used and the onus must be on those countries
not to employ PMCs. Whilst there have been stories of success
by PMCs, there have also been rumours of deceit, corruption and
unaccountability. In essence the world and the UN in particular
is almost certainly not yet ready to see the image of PMCs fulfilling
the traditional roles of professional national armed forces operating
under a legislated and democratic UN mandate. Inroads must be
made into PMC regulation but in a methodical, comprehensive and
coherent manner.
5.4 THE MILITARY
VIEW
In the current operational climate the majority
of British forces will inevitably end up operating alongside PMCs
contracted by local governments and multi national companies in
most African and some Asian theatres. The foremost difficulty
is that each situation will probably be unique and the companies
so varied, that legislation regulation and in military terms,
a set of Standard Operating Procedures for dealing with PMCs would
be extremely hard to formulate. The difficulties are compounded
by the fact that some western nations are reluctant to become
embroiled in third world disputes and as multi-national corporations
move into regions of instability so their need for security increases.
In the past this has manifested itself in UN sponsored operations
that have been delayed by months due to the apathy of the sponsoring
nations. It is also accepted that most of the PMCs do not involve
themselves directly in combat operations but focus on military
training, logistic support, high technology intelligence gathering,
procurement and static site defence or key point protection. Most
of which can be utilised by the military. In recent times it has
only been Sandline and Executive Outcomes that appear to have
been directly involved in combat operations.
There is currently a study within the MOD with
regards to those companies supplying military logistical support
to operations. At the war-fighting end of the conflict spectrum
there is little room for contracted support other than the armed
forces of a nation state. PMCs that attempt to get involved in
combat operations may have no moral interest as to the outcome,
and are likely to be involved in it only for financial gain. After
the fighting has been completed and a peaceful situation restored,
it is then that the PMCs can be employed. The areas of particular
benefit are the logistics and service sector which have already
proved their worth. After the Kosovo campaign the military logistic
supply chain was downscaled and civilian companies were employed
to transport and deliver fuel. In an era of scarce military resources
it is here that non combatant PMCs can prove their worth. It is
in the middle to upper end sector (combatant roles) where there
is concern. Many African and Asian governments have problems with
indigenous rebel groups sponsored by third parties. Such governments
often cannot afford, or even rely on their own armed forces. In
most cases the forces are badly paid, poorly trained and undisciplined.
The costs of maintaining an effective standing army are prohibitive
and consequently a short term contract with a PMC financially
attractive. This however can turn out to increase the problem
as it is effectively a short term solution to a long term problem,
because as soon as the PMC has got its payment and can withdraw,
a power vacuum could be left behind. This then has the potential
to destabilise the country, either sending it into a downward
spiral of long term conflict or requiring further intervention
of external forces.
There have been times when PMCs have been successfully
employed along-side national forces . The most recent example
of which has proved to be in Sierra Leone. In this case the Sierra
Leone government had possession of two MI 24 Hind helicopter gun
ships left over from the days of Executive Outcomes. Similarly
to the British IMATT troops, Sierra Leone did not have the pilots
to fly them. They therefore drafted in a PMC called Express Air
to fly the Hinds. The Pilots were drafted into the Sierre Leone
armed forces and also given citizenship thus giving them accountability
to the Sierra Leone armed forces. They had a rank structure, worked
hard, admittedly only for money, and took orders from the commander
of the British forces in Sierra Leone.11 Elsewhere examples were
seen in the early days of the Balkans conflict in the Croatian
international brigade where ex-patriot Croats and any other "mercenary
type" soldiers were enlisted directly into the brigade thus
giving them accountability.
The general military view and opinion is that
because PMCs are motivated purely by money, the companies involved
and their personnel must always be accountable to a nation state
and sustainable over a period of time. If PMCs are to be regulated
and legislated for, legitimacy and legality should be conveyed
in an appropriate and transparent manner. This should involve,
the UN, EU or a nation state sponsoring PMCs that have no "murky
past" and no grounds for being suspected of sponsoring illegal
activity. Where applicable, the companies should then be exposed
to all the usual tendering for competitive contracts and made
accountable for whatever it is that they are going to be involved
in. Those companies subsequently employed will be accountable
to international laws such as the Geneva Convention, Human Rights
Act and UN Convention against the Recruitment, Use, Financing
and Training of Mercenaries 1989.12 Once legitimately "employed"
by a country, the PMCs activities could be monitored on the ground
by organisations such as UNMOs, observers from Civil Affairs and
other neutral organisations. This way the companies that persist
in exploiting vulnerable countries can be driven out of the industry
by the legitimate organisations.
Almost unanimously accepted by military personnel,
is the thought that PMCs can offer a significant advantage over
national armies in terms of speed of response and are able to
fulfil such roles as the security of aid agencies if so wished.
Providing there is open competition PMCs should be able to compete
quite happily for logistic contracts. For countries in need of
PMCs with a more lethal capability, the alternatives are UN forces
and international police forces that would have to be contracted
and set up with funds from the International Monetary Fund and
UN. Whatever happens, the funding must go to the right place in
the recipient country, corruption by the recipient must be stamped
out and there must be a commitment to the future and long term
restructuring of that country. The final aspect viewed by the
military has to be the question of what message is it that you
are sending. It is all very well employing a PMC to do the work
that the UK's Government either cannot or do not want to participate
in, but how will this be viewed by the international community?
The Government is operating a policy of risk and gamble and what
is the price of failure by that company? Will that failure be
viewed as acceptable or will it be viewed as national embarrassment?
The military view concludes therefore that in benign situations
maximum use must be made of private contractorisation. The current
MOD policy champions this approach, as can be seen from the following
quote:
"MOD Ministers have endorsed the use of
the PFI to provide services throughout the Department. Only if
PFI has been demonstrated to be unworkable, inappropriate or uneconomic
should IPTs consider the MOD's own capital funding resources."13
There will be a trade off of cost and performance
versus reliability but small amounts of force, properly targeted,
where a lethal capability may be required, can prevent a crisis
escalating into full scale conflict. Finally there are concerns
should Britain's armed forces find themselves deployed alongside
PMCs that there could be a conflict of interest manifesting itself
in several areas, primarily in the field of intelligence and security.
During the Sandline affair it is accepted that both the MOD and
FCO received extremely useful intelligence from that company,
but at the same time reliance by PMCs on a network of old friends
and loyalties within the government departments can cause particular
difficulty.
5.5 OTHER GOVERNMENT
DEPARTMENTS AND
THE ARMS
TRADE
There are various other Governmental departments
who have an interest in the potential regulation of Private Military
Companies, not least the FCO, The DTI and within the MOD, the
DESO. When Foreign Secretary Robin Cook said "The Government
is committed to the maintenance of a strong defence industry which
is a strategic part of our industrial base as well as our defence
effort, Defence exports can also contribute to international stability
by strengthening bilateral and collective defence relationships
with the right of self defence recognised by the UN charter. But
arms transfers must be managed responsibly, in particular to avoid
their use for international aggression or internal repression".
This statement makes the point that defence exports contribute
to our international security policies and objectives, so it is
vital that any legislation involving PMCs looks closely at the
minutiae of the international arms trade, currently worth over
£5 billion a year in foreign exchange. So it is vital that
the United Kingdom exercises careful controls of defence equipment
exports.
The FCO, DTI, DFID and MOD are each involved
in careful scrutiny of export licence applications, therefore
any PMC wanting to be involved in the international arms trade
must be subject to exactly the same scrutiny. Export licences
are not approved if to do so would fail to comply with the UK's
international obligations or if there is a clear risk that the
proposed export might be used for internal repression or international
aggression, or may affect regional stability in any significant
way. It is reported that the problem with Lt Col Spicer and the
Sierra Leone Sandline Affair was not the supply of personnel and
expertise, but with the supply of weapons.14 The MOD now publishes
the Government's Annual Report on Strategic Export Controls jointly
with the FCO and DTI which ensures a new level of transparency
to the Government's export licensing decisions. It also includes
details of surplus small arms destroyed by the Government and
information on the number of small arms covered by the standard
individual export licences agreed on a country by country basis.
For PMCs this level of transparency and accountability is of paramount
importance to obtaining successful legislation and regulation
and prevents companies such as Paines Wessex Defence15 from attempting
to sell munitions that could be considered as anti personnel mines.
In the year 2000 the Government announced the
Consolidated EU and National Arms Export Licensing Criteria that
is used in considering all individual applications for licenses
to export goods on the military list. In summary the eight criteria
and other factors used to assess export licence applications address
the following issues:16
(1) Respect for the UK's international Commitments,
in particular sanctions decreed by the UN Security Council and
those decreed by the European Community, agreements on non-proliferation
and other subjects, as well as other international obligations.
(2) The respect of human rights and the fundamental
freedoms in the country of final destination.
(3) The internal situation in the country
of final destination, as a function of the existence of tensions
or armed conflicts.
(4) Preservation of regional peace, security
and stability.
(5) The national security of the UK, of territories
whose external relations are the UK's responsibilities, and of
allies, EU member states and other friendly countries.
(6) The behaviour of the buyer country with
regards to the international community; in particular its attitude
to terrorism, the nature of its alliances and respect for international
law.
(7) The existence of a risk that the equipment
will be diverted within the buyer country or re-exported under
undesirable conditions.
(8) The compatibility of the arms exports
with the technical and economic capacity of the recipient country,
taking into account the desirability that states should achieve
their legitimate needs of security and defence with the least
diversion for armaments of human and economic resources.
In short these criteria will have to be signed
up to by any British PMC wishing to export arms from the United
Kingdom. If a PMC wished to act as an arms broker between two
countries who were not members of the EU, under any proposed PMC
legislative system of notification, the contract could still be
vetoed. Therefore, when examining this, it was decided not to
consider further Arms Brokering legislation when considering options
for PMC regulation, as it is already accounted for in the Consolidated
EU and National Arms Licensing Criteria.
5.6 SUMMARY OF
THE UNITED
KINGDOM VIEW
ON THE
REGULATION OF
PMCS
Attitudes towards PMCs vary depending upon which
government department is involved. The FCO appears suspicious
of PMCs and views them as nothing more than mercenary and arms
dealing organisations17 but it is thought that this stance is
easing slightly. However, DFID has employed PMCs on contracts
in the past and continues to do so. It is widely accepted that
PMCs are able to deliver fairly rapid strategic success on a local
scale because of their avoidance of bureaucratic inertia. However,
due to their limited resources they are unable to address regional
security problems or the underlying causes for instability and
unrest. Unless the PMC has access to massive resources it could
not possibly tackle a nation's poverty or corruption. It can only
stabilise a security situation, allowing other organisations to
deal with the causes of instability. PMCs are medium sized businesses,
but the very nature of their work and the clients to whom they
are contracted means that they sometimes do not get paid. However,
their links with mineral extraction companies ensure their parent
corporation will usually show a profit in the long run. It is
accepted that until there is legislation the very legitimacy of
PMCs will continue to remain unclear. Their relationships with
the Government are a mixture of tacit support and public indignation.
However, it is very possible that military operations in politically
sensitive areas such as sub-Saharan countries will increasingly
become the target for PMCs due to the lack of appetite from Western
Democracies to become directly involved. Until there is legislation,
PMCs are "entitled to carry on their business within the
law and, for that purpose, to have access and support, which Departments
are there to provide to British citizens and companies."18
REFERENCES
1 DFID. Conflict Reduction and Humanitarian
Assistance. http://www.dfid.gov.uk/policieandpriorities/files/conflict—reduction.htm
(29 April 02).
2 DFID. Conflict Reduction and Humanitarian
Assistance. http://www.dfid.gov.uk/policieandpriorities/files/conflict—reduction.htm
(29 April 02).
3 MOD. The Future Context for Strategic
Defence. The Legal Dimension and Ethical Considerations. http://www.mod.uk/issues/strategic—context/index.htm.
(10 Jun 02).
4Makki, S. Private Military Companies and
the Proliferation of Small Arms: Regulating the Actors. International
Alert (01).
5MOD. The Future Context for Strategic Defence.
Defence Diplomacy'. http://www.mod.uk/issues/diplomacy/index.htm.
(10 June 02).
6MOD. The Future Context for Strategic Defence.
Defence Diplomacy. http://www.mod.uk/issues/diplomacy/index.htm.
(10 June 02).
7 House of Commons. Select Committee on
Foreign Affairs, Second Report. http://www.parliament.the-stationery-office.co.uk/pa/cm198999/cmselect/cmfaff/11609.htm
(10 Jun 02).
8 In 2002 the Conflict Prevention Fund amounted
to £118 million with a divide of £68 million across
the globe and £50m to sub Saharan Africa. In 2003 the fund
rises to £138 million with the extra £20 million being
split equally between the two areas.
9 The Defence Advisory Team. Publicity Leaflet
. Tailored Assistance in Defence Management. Cranfield
Defence Academy.
10 A subsidiary of the PMC Exploration Logistics
Group called Mine Clear and DSL were used for mine clearance in
Kosovo.
11 Brigadier J Riley DSO late RWF.
12 United Nations. International Convention
against the Recruitment, Use, Financing and Training of Mercenaries
4 December 1989, Adopted by GA Resolution 44/34 UN GAOR sixth
Commission, 44th Session, 72nd plenary meeting, Annex, Agenda
Item 44, UN Doc. A/44/766 (1989), Reprinted in UN GAOR 44th Session,
Supp No. 49 at 306, UN Doc A/44/49 (1990).
13 MOD. The Acquisition Handbook. Edition
4, Pages 22 to 23—Tactica Solutions Limited (January 02).
14 House of Commons. Select Committee on
Foreign Affairs, Second Report. http://www.parliament.the-stationery-office.co.uk/pa/cm198999/cmselect/cmfaff/11609.htm
(10 June 02).
15 Landmine Action Press Release. UK
Arms Company attempts Illegal Landmine Deal. http://www.icbl.org/news/2002/175.php
(25 June 02).
16 MOD. HMG Export Policy. Arms Exports:
Licence Criteria. http://www.deso.mod.uk/deso/policy%20whole.htm
(10 June 02).
17 House of Commons. Select Committee on
Foreign Affairs, Second Report. http://www.parliament.the-stationery-office.co.uk/pa/cm198999/cmselect/cmfaff/11609.htm
(10 June 02).
18 House of Commons. Select Committee on
Foreign Affairs, Second Report. http://www.parliament.the-stationery-office.co.uk/pa/cm198999/cmselect/cmfaff/11609.htm
(10 June 02).
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