House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Ninth Report

PROBLEMS OF DEFINING PRIVATE MILITARY COMPANIES

31. A number of labels have been applied to the companies supplying military services. The Green Paper points out that "the terms 'mercenary,' 'private military company'(PMC) and 'private security company' (PSC) cover a wide range of different people, corporations and activities."[47] Doug Brooks, President of the International Peace Operations Association, prefers the term "military service providers" to describe "lawful profit-seeking companies with profit making structures... [providing] the whole gamut of legitimate services that were formerly provided by national armies."[48] Tim Spicer has argued that it is possible to distinguish private military companies from mercenaries: the latter have "no common doctrine ... no common training standards, they'll work for the highest bidder," whereas PMCs are "formed bodies that have a sort of corporate entity" and will "only work for the good guys."[49] This itself raises the question of definition of who are the "good guys".

32. While there have been numerous attempts to define the different kinds of enterprise which operate in the sector,[50] the Green Paper rightly concludes that, in practice, the categories of company will often merge into each other.[51] Furthermore, all companies evolve according to circumstances, making consistent categorization of them as entities very difficult.

33. Denis MacShane told us that "Britain would like to see not so much a correct definition of what is and is not a private military company [as] what it can and cannot do."[52] We agree that a more productive approach than distinguishing between acceptable and unacceptable categories of company would be to distinguish between acceptable and unacceptable activities. Some activities could be prohibited in all circumstances. Others, because of their risky and potentially violent nature, need to be regulated. Clarity over which activities are permitted and which are proscribed appears to us to be absolutely essential for any legislative measures.

DEFINING LEGITIMATE AND ILLEGITIMATE ACTIVITIES

34. One option that has been proposed is that PMCs be prohibited from direct participation in combat activities.[53] Defining the point at which a company becomes directly involved in combat is difficult. The problems were highlighted in evidence submitted by Tim Spicer, who described the "complexity of a situation where a security company ... is providing expatriate armed guards for a strategic installation, such as an oil well, jointly owned by the local government and an international oil company, in a country where there is a conflict with a rebel movement. If the guards protect the installation with their weapons against the rebels—are they fighting for the Government and thus supporting the war effort?"[54]

35. Establishing a prohibition on armed combat operations might be further complicated by the fact that companies are sometimes hired by states to train nationals for the armed forces. Drawing the line between training for military planning and the planning itself would be difficult. National armed forces have been responsible for many of the worst human rights abuses of the last century, and it is possible that at some stage a British company, licensed to conduct military training, might train a national army which then went on to commit such atrocities. The Government would have to consider how to address this question if it chose to prohibit combat activities, weighing the possible costs against the benefits that military training can have on the standards of national armed forces.[55]

36. Further, ancillary assistance such as medical support, reconnaissance, battlefield supply and vehicle maintenance is an integral aspect of combat operations. Finding a satisfactory practical and legal definition will be far from straightforward.

37. If the Government were to choose to prohibit participation in combat operations by PMCs, one possibility would be to require a company to be able to demonstrate that any action taken was only in self defence, as a reaction to imminent threats. Kevin O'Brien points out the difficulties of drawing a line between defensive and offensive actions, when he addresses the question of "offensive defence." By this he means "attacks by opponent forces on areas/individuals/installations protected by a PMC/PSC" leading to the PMC "pursuing the opponent forces away from the site of the attack—or ... engaging in pre-emptive offensive measures against opponent forces for defensive purposes."[56]

38. ArmorGroup distinguishes between "legitimate commercial security and/or military support services, and the supply of uniformed and armed soldiers for the expressed purpose of engaging in combat to alter a prevailing political or military balance. It is, after all, the latter that gives rise to public expression of concern."[57] The company has drawn up a code of conduct for its own operations, which specifies that its employees "may not bear arms except for those carried for personal self defence with the agreement of and possession of a licence from the host government." The code also specifies that the company's business is "one dedicated to defensive measures."[58] These appear to us to offer the possibility of drawing a workable distinction between combat and non-combat activities.

39. Beyond this distinction between combat and non-combat activities, other PMC operations might be restricted according to an appropriately amended version of the consolidated EU and national arms export licensing criteria against which decisions on the granting or withholding of arms export licences are currently made.[59] These Consolidated Criteria (as spelled out in greater detail in the Annual Report on Strategic Export Controls)[60] are, broadly—

One: Respect for the UK's international obligations and commitments (the Government will not issue a licence where this would be incompatible with, in particular, UN and OSCE embargoes, EU common positions and embargoes, and non-proliferation agreements).[61]

Two: Respect for human rights and fundamental freedoms in destination countries (the Government will not issue a licence if there is a clear risk that the equipment will be used for internal repression; and will exercise special caution and vigilance before issuing a licence for relevant types of equipment for use in countries where serious violations of human rights have been established to have occurred) .



Three: The internal situation of destination countries (the Government will not issue a licence for exports which would promote or prolong armed conflicts or aggravate existing tensions or conflicts).



Four: Preservation of regional peace, security and stability (the Government will not issue a licence if there is a clear risk that the intended recipient would use the proposed export aggressively against another country or to assert by force a territorial claim).



Five: The security of the UK and its overseas territories, its European and other allies (the Government will take account of the effect of the proposed export on the defence and security interests of the UK and such other countries described, while such considerations cannot override the application of the first four criteria).



Six: The behaviour of the buyer country with regard to the international community, particularly in relation to terrorism, unsuitable alliances and respect for international commitments and law (the Government, in deciding whether to issue a licence, will take account of the record of the proposed recipient country in relation to such factors).



Seven: The risk of diversion to undesirable destinations (the legitimate defence and security interests of the destination country, its technical capability to use the equipment, and the efficacy of its export controls will be considered before the Government issues a licence, especially in relation to the risk of the export falling into the hands of terrorists).



Eight: The compatibility of the arms exports with the recipient country's technical and economic capacity, taking into account the legitimate needs for security and self-defence (the Government will take into account whether the proposed export would seriously undermine the economy or seriously hamper the sustainable development of the recipient country).