House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Ninth Report

EXISTING REGULATORY MEASURES

18. The Green Paper states that "Although successive governments have deplored the activities of mercenaries, no effective legislation exists to prevent either their recruitment or their participation in conflict."[25] The 1870 Foreign Enlistment Act, which makes it an offence for a British subject to enlist in the forces of a foreign power or to recruit for such forces, has been almost impossible to enforce. The Diplock Report of 1976[26] proposed that it be repealed or replaced, but no action was taken. It was this weakness of legislation that led our predecessor Committee to recommend a review of options for new legislation for private military companies.[27] Its ineffectiveness has been well illustrated more recently by revelations about the recruitment in the United Kingdom of men to train and in some cases serve with Taliban forces in Afghanistan.[28] It has been reported that at least 3,000 British-based Islamic extremists have been trained in al-Qaeda and Taliban terrorist camps in Afghanistan.[29]

INTERNATIONAL LEGAL INSTRUMENTS

19. The international legal instruments for controlling the negative aspects of private military activity are discussed in the Green Paper. Article 47 of the 1977 Additional Protocol I of the Geneva Conventions, which is set out in paragraph 5, is the most widely used definition of mercenary activity. This definition is employed in the UN Convention against the Recruitment, Use, Financing and Training of Mercenaries, which is the only international treaty applicable to the activities of mercenaries and private military companies.[30]

20. The NGO International Alert claims that the UN Convention "provides the best starting point for the domestic implementation of international standards prohibiting mercenaries into international legislation."[31] The Green Paper discusses the significant problems inherent in the application of Article 47 to the personnel of private military companies.[32] The British Government has concluded that the definition used in the UN Convention is unworkable for practical purposes, and has not signed it;[33] neither, with the exceptions of Italy and Belgium, have its European partners.

21. The Organization for African Unity has also drawn up a definition of a mercenary; however, the Green Paper argues that this too has severe difficulties in application.[34]

22. Our predecessor Foreign Affairs Committee, in their report on the Sandline affair in Sierra Leone, noted the shortcomings of the UN Convention, and the Government's conclusion that the definition of mercenary used is impossible to employ in British courts.[35] In its Sierra Leone report, the Committee accepted that parts of the Convention definition were "too vaguely drafted" for use in a court of law, but argued that "there is no reason why the definitions used in the UN Treaty need to be adopted verbatim... a tighter definition of mercenary could be adopted in British law so allowing ratification of the Convention."[36] It noted further problems with the Convention, however, some of which related to the recruitment of Gurkhas.[37] The Committee therefore recommended that the Government "reconsider seeking to amend the existing UN Convention against the Recruitment, Use, Financing and Training of Mercenaries but, if this cannot be achieved, that the Government take the lead in initiatives in the European Union, Council of Europe or the United Nations aimed at drawing up a new international legal instrument on the activities of mercenaries."[38]

23. When we asked Denis MacShane about prospects for an international agreement to control PMCs, he replied that "trying to get every country to sign up to a particular policy ... is quite difficult. I am nervous of making the best the enemy of the good."[39]

24. While we appreciate these difficulties, we also note the views expressed by International Alert, that "the entering into force of the [UN] convention would represent an important step in the development of a comprehensive framework applicable to mercenaries and would act as an important deterrent to military companies engaging in mercenary activities."[40] We further note that on 3 April 2002 the French Council of Ministers approved a draft Bill (projet de loi) which would impose severe penalties on anyone convicted of directing or organising mercenary activities.[41] The definition of mercenary used in the draft French legislation is very close to that set out in Article 47. This leads us to question whether, if the French Council of Ministers has approved the Article 47 definition of mercenary for their own legislation, this definition is really as unworkable as the British Government appears to believe.

25. A new international agreement to regulate the activities of PMCs would complement and make more effective legislation at a purely national level. We recommend that the Government, as it considers national regulatory measures, also develop a new draft international convention to regulate PMCs which might replace the existing UN Convention against the Recruitment, Use, Financing and Training of Mercenaries. If necessary, the search for a fully international agreement could be incremental, perhaps beginning with the Council of Europe.[42]

UNITED STATES LEGISLATION

26. The Green Paper outlines other relevant national legislation regimes in Annex B. Of particular significance is the regulatory regime of the United States government. In the United States, arms brokering and the export of military services are covered under the same legislation, the International Traffic in Arms Regulations (ITAR).[43] Under ITAR, registered companies must apply for licences before signing contracts with foreign clients and failure to do so is a punishable offence. Each application is studied by relevant sections in the State Department and by relevant embassies.[44]

27. International Alert describes the US government's relationship with PMCs as "perhaps the most mature" in the world, and the regulatory regime as "probably the most developed and comprehensive ... [It] appears to capture the activities of private firms in the US supplying defence services abroad."[45]

28. We note the long experience of the United States government in working with private military companies. We recommend that, in considering options for regulation, the Government examine carefully the United States government's regime for regulating and monitoring the activities of private military companies.

THE EUROPEAN UNION CODE OF CONDUCT FOR ARMS EXPORTS

29. The European Union Code of Conduct for Arms Exports was adopted under the British Presidency in 1998. The considerable progress in developing a co-ordinated EU approach to the export of arms is detailed in the Quadripartite Committee Report on Strategic Export Controls, which noted that the Code was "substantially strengthened" in 2000.[46] The Report also noted progress towards the agreement an international code of conduct for arms exports between the European Union and the United States. However, there is no equivalent code in respect of private military services.

30. We recommend that the Government work with European partners towards including the services provided by PMCs in the existing EU Code of Conduct for Arms Exports.

25 Green Paper para. 61. Back

26 Report of the Committee of Privy Counsellors appointed to inquire into the recruitment of mercenaries (the 'Diplock Report'), HMSO, August 1976. Back

27 See Second Report from the Foreign Affairs Committee, Session 1998-1999, Sierra Leone, HC 116-I, para. 96. Back

28 Jihadi groups such as al-Muhajiroun have boasted of recruiting large numbers of British Muslims to fight with extremist groups overseas. See Jason Burke, 'al Qaeda Britons feared to be back in UK,' Observer, 2 June 2002. Back

29 See David Leppard, 'Bin Laden had 3,000 British fighters," The Sunday Times, 21 July 2002 Back

30 Available at http://www.un.org/documents/ga/res/44/a44r034.htm. Back

31 Regulating Private Military Companies: options for the UK Government. Chaloka Beyani and Damian Lilly, International Alert, August 2001 (ISBN1-898702-07-3). Back

32 Green Paper, para. 6; David Shearer also discusses the problems inherent in applying Article 47 in Private Armies and Military Intervention, Adelphi Paper 316, International Institute of Strategic Studies, London, 1998, pp17-19. Back

33 Green Paper para. 6. On 15 June 1998, the then Foreign Office Minister Tony Lloyd stated: "We have no plans to sign and ratify the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. We have doubts about its legal enforcability in the United Kingdom." Official Report, 15 June 1998, c16w. Back

34 Green Paper paras. 7-8. Back

35 Official Report,1 December 1998, c.670. Back

36 See Second Report from the Foreign Affairs Committee, Session 1998-1999, Sierra Leone, HC 116-I, para. 93. Back