CHAPTER 6—STAKEHOLDER INTEGRATION,
OPTIONS FOR REGULATION AND RECOMMENDATIONS
INTRODUCTION
This section will aim to draw on the conclusions
of the four stakeholder chapters and integrate the key deductions
to provide answers not only to whether, when and where regulation
is required, but also to the shaping features of that legislation
to make it acceptable and pragmatic to all the stakeholders. It
will then consider the merits of each of the Green Paper's options
for regulation and some other pertinent options for regulation
which have been found in the course of our research. The African
states who refuse to see the difference between post-colonial
mercenarism and modern PMCs, the UNSECOORD restriction on UN agencies
using PMCs, MSF who abrogate any security issue and PMCs who will
never subject themselves to any form of regulation; all have trenchant
views on this subject but to bend to their demands would be to
cripple the legislation in the eyes of the majority of stakeholders.
Our aim is therefore to produce a pragmatic and succinct legislative
framework that is broadly acceptable to all.
6.2 IS REGULATION
REQUIRED AND
IS THIS
THE RIGHT
TIME AND
FORUM FOR
IT?
Many answers have been put forward in the course
of our study as to why the FCO has chosen this time to bring forward
the Green Paper. Erstwhile parliamentary lobbyists questioned
on this subject have sensed the hand of arms suppliers, the defence
industry or even liberal academics behind the debate.1 Although
they will want to oversee the drafting of the bill to promote
consistency of national objectives abroad between themselves and
PMCs, they will be reluctant to be the base for any regulatory
authority, which they may see sits best in the DTI. The FCO would,
however, wish to retain the power of veto over contracts and notifications.
6.2.1 THE
TIMING OF
LEGISLATION
There is little doubt that the momentum for
this Green Paper has followed the Sandline "Arms for Africa"
affair of 1998, in which the FCO's reputation was damaged. The
Daily Telegraph referred to "the catalogue of mistakes,"
at the FCO, "ranging from the hopelessly inadequate briefing
to gross failure to communicate."2 The subsequent Foreign
Affairs Select Committee report said:
"A considerable number of mistakes were
made. The crisis caused by the Sandline Affair at the heart of
the FCO was palpable. Ministers were suspected of misleading parliament
and the Foreign Secretary has himself recently been quoted as
saying that it took its toll of his standing as a minister."3
The report concludes by asking the FCO to draft
a Green Paper to regulate PMCs. It is apparent amongst stakeholders
that the time is ripe for UK legislation. Owing to the global
remit of PMCs, most stakeholders would prefer the legislation
to be through the UN or another international body but detailed
research has shown that this solution is at an impasse; the nature
of which will be summarised in the next section.
"Modern" PMCs want legislation now
because by giving them state endorsement, this will differentiate
them from the post-colonial mercenaries of yesteryear. There are,
of course, shades to their acquiescence. At one extreme, PMCs
with lethal capability are keen to have limited regulation in
order to gain a certificate which they can display to the outside
world which shows they have been given a clean bill of health
from the UK government, thus boosting their credibility worldwide
in the search for lucrative contracts. At the other extreme some
non-lethal PMCs accept the idea of regulation in order to distance
themselves from the PMCs capable of using lethal force, in order
to lose the insinuation that all the companies in this corner
of the market are just the re-branding of the same unwholesome
past.
The UN would like to see more countries legislate
unilaterally in order to build up a body of best practice which
will move the UN debate on PMCs inexorably closer to fruition.
South Africa and the US are the only countries that have regulated
in a meaningful way so far, with some varied consequences discussed
in earlier chapters which have advanced the debate. For some progressive
elements within the UN, the sooner regulation is enforced, the
sooner they consider that an ethical, highly competent string
of PMCs will emerge who have a role to play in the security issues
of tomorrow. NGOs will concur with the rationale behind this reasoning;
more open, accountable PMCs give NGOs more options in their quest
to meet their particular security requirements. For the MOD, working
next to today's unregulated PMCs in trouble spots is a risk, so
they also would like to regulation as soon as possible.
6.2.2 THE
FORUM FOR
LEGISLATION
It has been made clear to our study by the UN
itself, and by aid agencies working with UN departments that there
is neither the appetite nor the support for legislation on PMCs
at the moment. The UN exists only with the agreement of the Member
States, whose thinking on this subject has not advanced to where
the UK now stands. In the UN there is a significant lobby, mainly
African, whose memory of post-colonial mercenarism still prohibits
an unprejudiced approach to this issue. The last attempt by the
UN to regulate saw three of the paltry nineteen signatories to
the 1989 anti-mercenary convention, Angola, Yugoslavia and the
Congo subsequently use mercenaries. The different interests of
the UN prevents progress and this explains their interest and
support for the smaller bricks of member state laws which if proven
to be effective, can help to build the structure of subsequent
international legislation. The timeframe for substantive UN action
on PMCs is estimated to be five years at the earliest, with twenty
years being seen as more likely. Thus for the UK to drop proposals
to regulate in favour of waiting for the UN is not an option.
As the FCO desk handling this Green Paper sits within the FCO's
UN Department, this will be a well-recognised fact. The time appears
right for legislation and the UK is the right place for it to
be enacted.
6.3 WHAT OF
THE FUTURE
UTILITY OF
PMCS?
The demand for PMCs has grown over the last
10 years. Most commentators explain this growth by linking it
to the rise in global insecurity following the end of the Cold
War and withdrawal of superpower support for weak regimes. This
continued withdrawal of support by the developed world to ailing
regimes follows the unsuccessful operations in Somalia and initially
in Yugoslavia by the international community in which intervention
went disastrously wrong or failed to prevent a bloodbath. Since
those operations, the developed world has declined to involve
itself in conflicts of no direct strategic importance. This market
gap for security is being filled by PMCs, and this is often referred
to as the privatisation of security. This trend of global insecurity
is growing. As Kim Richard Nossal concludes in an article, "Global
Governance and National Interests: Regulating Transnational Security
Corporations in the Post Cold War Era:" "Many of the
civil wars of the 1990s, in Afghanistan, Chechnya, the Democratic
Republic of the Congo, Rwanda, Sierra Leone, Indonesia and Yugoslavia,
for example, are not over and other conflicts lie on the horizon.
Given this, it is safe to conclude that there will continue to
be a demand for security services by humanitarian NGOs, businesses,
and, most importantly, governments that recognise that TSCs (PMCs)
can provide a relatively cheap force multiplier in certain conflict
situations."4
However when one examines the specific activities
of PMCs for which there is demand, there has recently been a shift
of emphasis away from combat operations towards the less contentious
areas such as training, mine clearance, logistic support and guarding
of both installations and NGOs. In our study there was no evidence
that large combat contracts had been offered to or taken on by
PMCs since Sandline in Sierra Leone in 1998. In a wider perspective,
war-fighting roles have dried up but the requirement for lower
order security is growing rapidly. Kim Richard Nossal argues that
market forces, and the questionable ethics and practices many
people associate with the EO and Sandline sort of company have
put them out of business.5 This self-regulation by market forces
he advances as a more attractive solution than the problems linked
with bringing forward legislation. Our study does not agree that
self-regulation is enough. There will always be the chance of
these companies re-appearing under different names and the "Arms
for Africa" affair happening again. This cannot be allowed
to happen and therefore this opportunity for regulation, encompassing
the full spectrum of employment that a PMC could get involved
in, must be grasped now.
6.4 ARE PMCS
ACCOUNTABLE NOW?
As has been argued in the previous section,
the reason for the timing of this Green Paper is because of the
lack of accountability of UK based PMCs. Where some, like the
journalist Michael Bilton, claim that by not regulating, PMCs
are deniable by the government which can be very useful for the
state6, the facts do not agree. The FCO did not succeed in its
attempt to deny its links with Sandline in the "Arms for
Africa" affair, and was roundly blamed for its complicity.
Globalisation has shown that the irresponsible actions of British
based companies, wherever they operate in the world, affect the
British Government. There is some regulation, both national and
international, to which PMCs are already subject. These manifest
themselves as UK company regulation, which will be covered later,
and international conventions and protocols on human rights, neutrality
and parties to a conflict. But the mechanisms for prosecuting
this justice are still only used in extreme cases such as genocide
and war crimes. The International Criminal Court and The Hague
tribunal are not yet sufficiently mature for them to be considered
the correct forum for trying UK based PMCs. PMCs are not fully
accountable and thus further UK based legislation is the only
answer.
6.5 KEY FEATURES
OF REGULATION
Most stakeholders are in favour of regulation;
it is only in the degree of regulation that they differ. At one
end of the scale PMCs with lethal capability would like a company
licensing system, but not to have to get a licence for each deployment.
For reasons, they argue, of speed of response, licensing each
deployment would hamper their ability to intervene quickly in
disputes and thus they lose business. However there is little
evidence to suggest that they have been required in the last few
years to intervene in a conflict with alacrity, and there is also
no reason why the individual deployment licences could not be
issued by the Government in a timely fashion. At the other end
of the scale are some NGOs and developing countries who refuse
to accept that PMCs are necessary and would prefer to see them
all banned. These are the poles of opinion, but fortunately they
represent only a very small percentage of the stakeholders. For
the vast majority, regulation is welcomed and the following represent
the main thrusts they would like to see implemented.
6.5.1 THE
DIFFERENTIATION
BETWEEN PMCS
THAT HAVE
A LETHAL
CAPABILITY
This distinction has been made throughout this
paper, and it is seen as a useful method of separating those companies
who are unlikely to be involved in contentious work and therefore
require little regulation from those PMCs from whom the UN and
NGOs would like to see more transparency and over whom the UK
Government wish to have more regulatory power.
6.5.2 COMPANY
LICENSING
Most stakeholders agree that this is a useful
method of ensuring best practice from the PMCs, an ability to
disbar unethical PMCs from the marketplace and the potential that
licences can be revoked or suspended to allow allegations of malpractice
to be investigated. There must be two distinct criteria for award
of this Licence. Firstly, there should be a commitment by the
company to certain codes of conduct and secondly a vetting of
the company propriety and personnel by the professional authority.
In order to ensure that Licensing is seen as transparent and not
in the gift of a particular party or government, we suggest that
an existing code of conduct for companies working abroad is drawn
on as the rules by which the PMCs must operate on deployment.
The joint UK and US "Voluntary Principles on Security and
Human Rights"7 is an excellent code of conduct for this which
PMCs should be made to sign on a mandatory, not a voluntary, basis.
It was formulated to ensure propriety and ethical behaviour by
multinationals, mostly in the extractive and energy sector, in
far-flung corners of the developing world. The main stipulations
of the section of the Code dealing with security require PMCs
to:
— Observe ethical conduct and human
rights and promote the observance of international humanitarian
law.
— Act in a lawful manner and exercise
restraint and caution regarding the local use of force, including
using rules of engagement.
— Practice in a way that should be
capable of being monitored by independent third parties.
— Allegations of human rights abuses
by private security should be recorded and investigated.
— Not employ individuals implicated
in human rights abuses, not violate the rights of individuals.
— Investigate properly when physical
force has been used.
6.5.3 LICENSING
OF CONTRACTS
Although not popular with PMCs capable of lethal
force, they admit that they could live with this stipulation as
long as it could be done speedily, which is taken to mean less
than a fortnight. As far as the NGOs, FCO, MOD and DFID are concerned,
this is an inalienable cornerstone of the legislation ensuring
that ethical, and hopefully therefore British, interests are sacrosanct.
A body would have to be formed which had the task of checking
the fine detail of each contract and then endorsing each one.
6.5.4 EXTRA-TERRITORIAL
LEGISLATION
PMCs do not feel that this is necessary regulation,
however once more the UN, DFID, MOD and NGOs see this as an important
part of regulation, limiting the chances of renegade behaviour
in foreign parts going unpunished.
6.5.5 CLIENT
CONFIDENTIALITY
PMCs wish to maintain client confidentiality
because if there is a risk of a client or contract being exposed,
clients will not be forthcoming and they will simply go out of
business. On the other hand, for a PMC to be fully acceptable
to the NGO community, NGOs wish to be able to examine a PMCs history
and ongoing operations to ensure that there is no conflict of
interest. Putting the PMCs out of business is not believed to
be the intention of the Green Paper, so we endorse the proposition
that client confidentiality should only be broken to the regulating
authority who would be legally bound not to disseminate the information
further. This may pave the way for a new type of PMC, specifically
tailored to the NGO community, who would be seeking NGO clients
who were not concerned about their own client confidentiality
and thus they could operate as a fully transparent PMC. This open
and less contentious type of PMC may well find that there are
many potential employers keen to use their services.
6.5.6 MONITORING
Superficially this would seem to aid transparency
and regulation, but in practice it is problematic. Many clients
of PMCs would specifically forbid the deployment of UK Government
monitors for reasons of confidentiality, safety and operational
security. Anyone who has served in a peacekeeping operation will
know how difficult it is to monitor trouble spots, because fighting
can be over in a matter of minutes, well before a monitor has
had time to react. There is also the question of who would conduct
this task, how they would show their neutrality without giving
away the operation and how it would be funded. The most pragmatic
way to approach this issue is to make provision in the regulation
for monitoring, but only in extremis and when the client is content
that this should happen. If the client is not content, then he
must realise that the UK government may terminate their licence
for a contract at any stage that they fear human rights interests
or British interests are being harmed. The initial point of contact
for oversight in country should be the British Defence Attach«e.
6.5.7 COST
Foremost in the mind of any company operating
for profit, is fixed overheads like the cost of a licence to practice.
The government also is keen to demonstrate the best return for
taxpayers' money thus an expensive licensing regime benefits no
one. In order to be fair, costs should be split, as both parties
benefit from regulation. Our stakeholder integration concludes
that it would be fair for PMCs to pay for their licence to practice
but for the government to pay for the cost of licensing any individual
contract. Monitoring would be not only an expensive, but also
a dangerous business. The costs for this would have to fall to
the Government as it is an extension of the licensing for each
contract.
6.6 COURSES OF
ACTION
Having integrated the desires of the stakeholders,
these deductions now need to be examined in the light of the available
options for legislation in the Green Paper and three other pertinent
legislative courses of action open to the Government. It will
then make a recommendation on the best course of action and suggest
necessary details and mechanisms that would make the regulation
more effective and acceptable to the various stakeholders.
6.6.1 OPTION
1—DO NOT
ADOPT ANY
REGULATION
For many within the UN as well as various human
rights organizations the UK Government's inactivity in controlling
PMCs has been seen as condoning their actions. Whilst it may be
comparatively easy for the government to distance themselves from
a PMCs activity abroad, it could be argued that allowing them
to live and work from Britain would bestow tacit approval on the
organizations. Additionally the view of many organizations under
the UN umbrella as well as NGOs is that retention of the status
quo would not provide accountable, transparent and respectable
PMCs with whom they feel they could do business. The MOD and DFID
do not object to PMCs in principal and recognise that they may
be required to work with them on a growing basis in the future
and desire that PMC organizations and activities are better controlled.
Most of the PMCs support regulation; particularly those who offer
lethal capabilities such as SCI and wish to distance themselves
further from the mercenaries of the past; they believe that regulation
is another step towards increased respectability. However the
PMCs who provide less contentious capabilities see regulation
as an unnecessary burden and it is therefore important that any
regulation implemented has a greater impact upon those providing
a lethal capability than those who do not.
6.6.2 OPTION
2—A BAN
ON MILITARY
ACTIVITY ABROAD
A ban on military activity abroad may be attractive
to those who perceive no difference between a PMC and a mercenary
and wish to put the PMCs out of business, but for many this is
seen as an unreasonable step. Realists within the UN and NGOs
distinguish a role for PMCs in areas such as security, logistics,
de-mining and fear that this type of draconian legislation would
hamper individuals and PMCs from fulfilling some of these roles.
The MOD and DFID would object for similar reasons; they would
be concerned that this option may preclude the support they receive
from contractors when deployed overseas. The PMCs would clearly
be alarmed at the prospect of being legislated out of business.
Proponents of such a regulation would argue that it could be directed
at old style individual mercenaries and not at PMCs, distinguishing
between the two is legally difficult. Indeed the definition of
what constituted a mercenary bedevilled the South African PMC
legislation for several years. Having defined what is and is not
a mercenary, those enforcing the law would face the difficulty
in gathering sufficient evidence that a law had been broken based
upon events in another part of the world where Britain may have
little visibility. Other observers comment that as well as precluding
any opportunity to create respectable and responsible PMCs, a
total ban will also force them offshore and underground where
there will be little visibility or control over their actions.
6.6.3 OPTION
3—A BAN
ON RECRUITMENT
FOR MILITARY
ACTIVITY ABROAD
Similar arguments would apply to a total ban
on military recruitment abroad. In addition it may raise problems
for citizens who join the French Foreign Legion and it could be
perceived as hypocritical. Were Nepal to adopt such legislation
the status of the Gurkhas would be illegal. Additionally such
a ban would put many PMCs out of business, dependent as they are
upon recruiting personnel from a wide variety of countries including
the client state. Both a ban on recruitment and a ban on military
activity abroad would be assessed as relatively cheap.
6.6.4 OPTION
4—A LICENSING
REGIME FOR
MILITARY SERVICES
A licensing regime for military services would
require the PMCs to gain UK government approval for every contract
that is signed. This form of regulation would not be popular with
some PMCs; not only do they argue that it would slow their deployment
process but it also does not bestow accountability, transparency
and respectability on the organization but upon the task. The
NGOs would similarly be dissatisfied with such an arrangement
because they could not be certain that the PMC they wished to
employ was of the required standard. The MOD, DFID and the UN
would also object that the quality of PMCs themselves was not
being judged. They would however approve that this form of regulation
would ensure the UK government checks that the PMC tasks were
not running contrary to their interests and strategies. The MOD,
DFID and the UN would probably concede that for PMCs that are
tendering for contracts where lethal force is not a service then
simple notification, as defined in the Green Paper, may be more
appropriate. This solution would be moderately expensive.
6.6.5 OPTION
5—REGISTRATION
AND NOTIFICATION
PMCs would view this as the most desirable solution;
registration would grant them a measure of respectability in order
to attract clients but require the absolute minimum of bother
to them. They would also be gratified because notification is
a less bureaucratic process than a licensing regime for military
services and would therefore not slow down their deployment speed.
For the UN, NGO's, the MOD and DFID this form of regulation would
be seen as too light and they would argue it does not ensure the
quality of PMCs was sufficient or that simple notification is
a robust enough measure to ensure PMCs activities were not opposed
to their interests. They would probably accept that for those
PMCs who do not offer lethal capabilities then registration and
notification might be suitable. It could therefore be a method
of easing the cost and regulatory burden and allow licensing authorities
to concentrate upon the more contentious PMCs offering lethal
capabilities.
6.6.6 OPTION
6—A GENERAL
LICENCE FOR
PMCS
For some PMCs this is the preferred option,
the responsible PMCs will achieve respectability as a result of
such a licence and the irresponsible ones are likely to be forced
underground or offshore. PMCs are also attracted to such a process
because it will then allow them to fulfil contracts with no interference
from the UK government. PMCs that do not offer a lethal capability
believe a General Licence may be an unnecessary burden and see
registration as more appropriate. Some NGOs would also support
the General Licensing system by itself, as long as the 'Voluntary
Principles on Security and Human Rights' are incorporated into
the system while others, as well as the UN, MOD and DFID differ.
They accept that a General licence would ensure the standards
of a PMC but believe that this method does not control the PMCs
activities sufficiently. They advocate that this method was used
in conjunction with a licensing regime. This form of regulation
would be relatively cheap.
6.6.7 OPTION
7—SELF-REGULATION
Many of the PMCs who would prefer to conduct
the low order non-lethal military tasks such as unarmed security
and logistics believe that this would be sufficient. PMCs who
offer combat and operational support services believe that self-regulation
is not sufficient and desire greater government endorsement. Whilst
the other stakeholders may concede that stringent regulation is
not necessary for PMCs offering non-lethal services they do believe
that government control is necessary for PMCs who wish to offer
the more contentious military services. Self-regulation would
be unlikely to incur substantial costs.
6.6.8 GENERAL
AND CONTRACT
LICENSING
For most PMCs this is too much government interference
and though content with the General licensing arrangements, they
would be concerned that the contract licensing regime would slow
down their potential speed of deployment thus significantly reducing
their ability to win competitive contracts. They would argue that
such a system is in place in the United States and approval for
contracts can take from 2-6 months. The necessity of this speed
of deployment by the PMCs is a debatable point as has been covered
earlier, but if the bureaucracy slows the licensing of contracts
PMCs will leave the UK, thus negating the regulation. It is probably
fair to say that such a regime may be too stringent for PMCs providing
low order non-lethal services. The UN and NGOs would be very satisfied
with this course of action for it provides them with PMCs whose
standards have been checked by the UK government, who will have
had to sign up to comprehensive human rights stipulations and
whose activities have the approval of all the relevant UK government
departments. Though this regulation may seem burdensome to the
PMCs they must be clear that without adopting these measures they
will not have the confidence of the UN and NGOs and will find
it very difficult to obtain contracts from these organizations.
Similarly the MOD and DFID would be content with such regulation,
as it allows them to employ or work alongside respectable PMCs
and input into their activities to ensure PMCs do not run counter
to their policies. This most thorough form of regulation, though
the most efficient, is acceptable to most stakeholders and would
be costly to run.
6.7 RECOMMENDED
COURSE OF
ACTION
It is recommended that the UK implement a Registration
and Contract Approval regime to control PMC organizations that
wish to offer a lethal capability and a Registration and Notification
scheme for those PMC organizations that wish to offer non-lethal
capabilities.
Table 5
RECOMMENDED COURSE OF ACTION
| Non-Lethal Capabilities
| Lethal Capabilities |
| Registration and Notification | Registration and Contract approval
|
| Logistics | Armed security |
Mine clearance
Risk Consulting
Unarmed security
Military Training
Military Intelligence
Coastguard
| Industrial Sites
Convoy Escorts
Embassy Protection
Anti Piracy
Offensive Combat
Any activity with weapons
|
Further recommendations on the manner such regulation could
be applied include:
6.7.1 CRITERIA
FOR REGISTRATION
Most PMCs already conform to many forms of government and
non-governmental regulation. ArmorGroup for instance are monitored
by their shareholders, the securities exchange commission, an
international board of directors, a major accountancy firm and
send their accounts to Company House. They also conform to the
US Foreign and Corrupt Practices Act, the Health and Safety At
Work Act and the Data Protection Act. Despite this plethora of
legislation it is important that the PMCs vet their personnel,
preferably in line with an industrial 'Best Practice' as defined
by an approved professional body. This reference would be to establish
whether the individual is suitable and whether he has completed
the appropriate military service and received an honourable discharge.
Many PMCs already practice such a regime internally. To reduce
the burden of time and cost it is proposed that if a PMC wished
to a employ a member with the intention of deploying him overseas
without the requirement to carry a weapon then the company will
not be required to vet those employees. The cost of this would
be reflected in the cost of the registration.
In addition to the checking of personnel it would be in all
stakeholders interests if the Voluntary Principles on Security
and Human Rights agreed between the US and UK governments were
incorporated into the government's regulatory framework, the PMCs
charters and the business practices as part of the general licensing
process. These principles would act as a mandatory code of conduct;
they are already widely used by the energy extraction industry
as a guideline on their behaviour.
6.7.2 CRITERIA
FOR CONTRACT
APPROVAL OR
NOTIFICATION
The setting up of a contract's terms should not require regulation.
This will allow PMCs to travel to potential client states and
determine the business arrangements. It would be a draconian measure
to prevent from conducting such trips; it would also be an unnecessary
regulation as many PMCs would "book in" with the FCO
prior to departure to ensure the submission of a contract would
be likely to be received favourably.
All PMCs are concerned about the time required for the issue
of a contract licence, and this paper argues that contract licensing
or refusal must happen within two weeks. For companies like ArmorGroup
engaged in unarmed security advice abroad it is accepted that
notification is an appropriate mechanism for control. If a PMC
however wished to send armed personnel abroad as part of a contract
it will need approval from the relevant government departments
which should include the FCO, DFID, DTI, Home Office and MOD.
To ensure such a contract does not run contrary to UK or UN interests
the FCO should be the lead department in authorizing such a contract.
The European Union Code of Conduct on Arms Exports could be used
as a guide for PMCs as to what is and is not acceptable.
6.7.3 SECURITY
Some PMCs clearly wish to retain client confidentiality and
prevent the names of some of their employees from reaching the
public domain. The government should therefore treat discretely
any information passed by a PMC to obtain a general or contract
licence or to register and notify. The requirement for security
conflicts to some degree with the NGOs desire to have oversight
of all PMC personnel records. In this instance it is recommended
that NGOs are assured by the government licensing authority that
the personnel employed by the PMC are acceptable.
6.7.4 COST
A Registration and Notification regime is one of the cheaper
regulatory options. It is recommended that the burden of this
cost is split between the PMCs and the Government. PMCs should
be made to pay for the cost of obtaining and any subsequent auditing
of their Registration. Registration should not become a yearly
event, however the regulatory authority should carry out inspections
and verifications of the PMCs standards on an ad hoc basis. The
Government would in turn pay for the cost of contract approval
and any monitoring if required. For PMCs that do not offer a lethal
capability and therefore only wish to notify their foreign contracts,
the costs would clearly be lower.
6.7.5 MONITORING
For the more contentious military services offered by the
PMCs the licensing contract authorization may be linked to an
ability to monitor if required. In the first instance the resident
Defence Attaché could undertake a watching brief or oversight
but in some cases he may require additional assistance. It is
however hoped that with regulation, PMCs will ensure that they
are better able to discipline themselves and ensure that their
actions concur with required standards. Clearly many nations may
resent and forbid the use of a monitoring team and therefore host
nation approval would have to be established in the contract licensing
period.
6.8 DISADVANTAGE AND
ADVANTAGES OF
THE RECOMMENDED
REGULATION SYSTEM
The problem of regulating PMCs defies a perfect solution.
It is however clear from analysing the strengths, weaknesses,
opportunities and threats (SWOT analysis) that the advantages
of our recommended solution considerably outweigh it's disadvantages.
Table 6
SWOT ANALYSIS OF RECOMMENDED COURSE OF ACTION
| Strengths | Weaknesses
|
1.Allows the government to focus on lethal capability PMCs.
2.Low regulation for PMCs with non-lethal capabilities.
3.Comparatively easy to monitor and enforce on the ground.
4.Does not permanently exclude any military options or capabilities for PMCs or the Government. It therefore allows maximum flexibility.
5.Government has good oversight of PMC activity abroad.
6.Regulation is not overly expensive or burdensome compared to many solutions.
| 1.Some non-lethal activities such as Military training, logistics may have important military consequences but only require registration and notification from the PMC.
|
| Opportunities | Threats
|
| 1.Raises the standards and therefore respectability of PMCs and increases their chances of employment with the UN and NGOs.
| 1. Approval from the UK government could slow PMC deployments, resulting loss of business or a delay in the effect the PMC can deliver. This may drive some PMCs offshore.
|
| 2.As new capabilities and services grow they can be easily reconciled with the lethal/non-lethal categories.
| |
6.9 CONCLUSION
It is hoped that by adopting a regulation system that differentiates
between the use of lethal force the burden on PMCs operating at
the lower end of the scale will be reduced and that the licensing
authorities will be better able to scrutinize the activities and
structures of the PMCs who offer lethal force. It is hoped that
an efficient regulatory system will afford greater respectability
to PMCs and raise their standards; in so doing many nations and
organizations may become more inclined to employ PMCs on appropriate
tasks. There is therefore a clear incentive for PMCs to accept
the additional burden of regulation in order to receive new contracts
from new clients.
REFERENCES
1 Interview with former UK parliamentary lobbyist by
the author 30 May 2002.
2 Lt Col Tim Spicer OBE, An Unorthodox Soldier,
London, Mainstream Publishing, page 217.
3 Ibidem, page 213.
4 Kim Richard Nossal, Global Governance and National
Interests: Regulating Transnational Security corporations in the
Post Cold War Era, Melbourne journal of International Law,
Vol 2, 2001, page 474.
5 Ibidem.
6 Oral evidence to the Foreign Affairs Select Committee,
11 June 2002.
7 Bureau of Democracy, Human Rights, and Labor, US Department
of State, Voluntary Principles on Security and Human Rights, December
20, 2000, and http://www.state.gov/www/global/human rights/001220 fsdrl principles.html.
Cranfield University
July 2002
| 
