House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Ninth Report

THE DEBATE ON PRIVATE MILITARY COMPANIES

40. The Green Paper summarises some of the arguments and counter arguments put forward in the current debate about private military companies. Some of the sources of concern, expressed by our witnesses and other commentators, may be addressed through regulation. Other problems are less tractable.

ACCOUNTABILITY

41. It is the duty of Government to maintain disciplined defence forces. There is a presumption that members of those forces will be citizens of the country concerned, but there are cases when some personnel and/or units may be recruited from abroad (such as the Foreign Legion of the Gurkhas). In these cases, an oath of allegiance is sworn; the forces are subject to a military legal code; their command and control structure is known; and they and their superiors are subject to the Geneva Convention and accountable for their conduct. This does not apply to Private Military Companies.

42. Michael Bilton expressed to us his concern that, regardless of the intentions of those running a private military company, its employees on the ground could not be held to account. In discussing the Sandline International operation in Papua New Guinea, he suggested that the company's employees were considering the liquidation of some local guides. Mr Bilton pointed out that these guides could have been killed without the company's managers or anyone else realising: "several hundreds of miles away in the jungles ... something dreadful could have been done. Who was going to be held responsible for this? Who was going to report back and say to [those who were running the operation] that they had to despatch these people?"[62] He found it impossible to "see the same levels of accountability [among PMC employees as] that we have with our own soldiers, who ... are licensed because they take an oath of allegiance to the Crown."[63]

43. Tim Spicer argued that enough checks and balances could be established to alleviate this concern. A regulatory regime, coupled with existing international legal instruments, ought to be able hold companies to account for their actions abroad: "If you superimpose national regulation and in some way perhaps as a second step link it to regulation within the United Nations or within the international community, if you take the principles of international law, national law, regulation, media scrutiny, contractual obligations, there are enough checks and balances to ensure that having sorted the wheat from the chaff in terms of who is allowed to conduct these operations, there is enough weight of law to address that particular issue."[64] However, Tim Spicer also accepted that "there is nothing like the sanction of the Armed Forces Act or at a much lower level the manual of military law and other legal balances one has when deploying national forces."[65]

44. International legal instruments, including the International Criminal Court, should in theory apply to PMCs as to national armed forces.[66] They should therefore be able to hold PMC employees to account for their actions. However, the Green Paper rightly highlights the difficulties inherent in applying international law to PMCs. It points out that some private companies "have a tendency to mutate"[67]: unlike states, they can be dissolved or disbanded, and as a consequence their personnel become difficult to trace. David Stewart Howitt also reminded us of the case of the former Yugoslavia,[68] which demonstrates very clearly the difficulties inherent in bringing war criminals to account.

45. International Alert have also expressed concern at the weakness of measures to hold PMCs to account. They point out that "prosecution and extradition [of those who have committed crimes] presuppose an adequate or corresponding prescriptive domestic legislation in the country which the offence has occurred." Consequently they argue that "any prospective UK legislation should have an extra-territorial provision, in view of the potential inadequacies of laws in countries where crimes may be committed."[69]

46. It appears to us that the incentive to uphold internationally agreed human rights standards in conflict situations is weaker for personnel if they are employed by a PMC rather than a state. In drawing up legislation, the Government needs to consider carefully the appropriate mechanisms for holding PMCs' employees to account.

47. Denis MacShane discussed with us the possibility that a licensing regime might be designed to ensure that "contracts or licences would not be awarded for activity that in any way could place the company concerned in a position of being likely to commit human rights violations."[70] Given the inadequacy of measures to hold PMC employees to account for their actions, we believe that this objective should be central to any prospective legislation.

48. The establishment of a monitoring mechanism might, we were told, help to hold PMC employees to account and serve as a deterrent for bad practices.[71] We discuss this proposal at greater length in paragraphs 151 to 157 below.

SOVEREIGNTY

49. Though we note the theoretical possibility that PMCs could threaten the governments that employ them, we agree that it is difficult to see what a modern PMC would have to gain from taking over a state.[72]

50. More likely, in our view, is that a PMC might act in support of a coup against an established state. The Green Paper appears to discount this possibility, apparently because PMCs were not involved in coup attempts during the 1990s.[73] We recommend that, before bringing forward legislation to regulate PMCs, the Government consider how to deal with the possible involvement of these companies in the overthrow of established states.

ECONOMIC EXPLOITATION

51. The UN Special Rapporteur on mercenaries, Mr Enrique Bernales Ballesteros, has reported concern that some governments facing internal armed conflicts hire security companies to restore order but "do not have the funds to pay for the services of these companies and have to grant them major concessions of mineral and oil resources that account for a valuable share of their national heritage."[74] The argument against the payment of private military companies through these means is that the country is "mortgaging future returns from mineral exploitation."[75]

52. We were interested to hear Tim Spicer's view that a mineral concession is "worthless to a PMC."[76] He explained that "I have a business to run, I have payrolls to meet, I have overheads and to turn a piece of paper which is virtually worthless into commercial reality, that is to turn it into a gold mine or an oil well or whatever, takes an awful lot of outlay. It is not just something of value, it is something which may have value once you have spent a lot of money on it in several years time."[77]

53. Nonetheless, we have little doubt that some commercial military and security activity has been paid for through the granting of mineral concessions or other non-monetary methods. David Steward Howitt expressed to us his belief that the economic attraction of mineral resources in Africa "has been the force behind certain PMCs' activities [there] over the last 30 years."[78] National armed forces have also engaged in this kind of exploitation: senior army officers involved in Zimbabwe's military adventure in the Democratic Republic of Congo are known to have close links with mineral exploitation companies.[79]

54. The granting of mineral concessions to PMCs is unlikely to result in the equitable distribution of the proceeds of such concessions to local communities, and in most cases should be deprecated. However, allowing the proceeds of mineral concessions to remain in the hands of rebels or corrupt governments is unlikely to produce a beneficial outcome for local communities either. The Government will need to consider carefully whether the possibility that PMCs might abuse access to mineral concessions or to other nationally important commercial assets is a sufficiently serious problem to justify the outright banning of such transactions in all circumstances.

A VESTED INTEREST IN CONFLICT?

55. The existence of PMCs does not depend on the perpetuation of 'hot wars.' As Tim Spicer told us, "there is plenty of business to be had in the security field which is non-contentious and is protective and passive and defensive and all the other things which people would wish to see in terms of the application of security for the promotion of stability."[80]

56. We note the statement in the Green Paper that the possibility that PMCs might perpetuate conflict is "surely a matter for those hiring PMCs."[81] Better regulation of the sector might help any foreign governments hiring PMCs to ensure that they chose a responsible company. A regulatory body might also set out guidelines for contracting parties, to encourage them to write performance clauses into contracts which would give PMCs an incentive to complete tasks assigned to them.[82] Properly managed regulation should help to ensure that irresponsible companies which do perpetuate armed conflicts are denied the authority to operate from the United Kingdom.

HUMAN RIGHTS

57. In his 1999 report to the United Nations Human Rights Commission, the UN Special Rapporteur on mercenaries argued that private military companies were "developing their offers more and more aggressively, putting forward arguments for legitimacy based on military efficiency, cheaper operations, their personnel's proven experience." He urged the Human Rights Commission to "remember that mercenaries base their comparative advantage and greater efficiency on the fact that they do not regard themselves as being bound to respect human rights or the rules of international humanitarian law. Greater disdain for human dignity and greater cruelty are considered efficient instruments for winning the fight."[83]

58. PMCs argue that the vetting procedures carried out by reputable companies ought to reduce the likelihood that employees might commit human rights abuses. One such company, ArmorGroup, claim that their own and other reputable companies' vetting procedures would prevent their recruitment of "persons with a colourful past, whose demonstrated personal conduct and morals displayed abroad may be considered unreliable and whose assignment to a client may prove an embarrassment to that client."[84] Tim Spicer also told us that "we do have the ability to vet our employees carefully and to ensure that they behave, in so far as we can, in a way commensurate with what we are trying to achieve and the standards we have imposed. I cannot think of anybody who works for my organisation or is likely to work for my organisation who might transgress and disappear into the depths of Eastern Europe because I would not employ him in the first place if that were where his natural bolt hole was."[85]

59. A regulatory mechanism that examined recruitment procedures and rated companies accordingly should, according to this argument, help to reduce the likelihood that PMCs which employed criminals and other unsuitable individuals were allowed to operate from the United Kingdom.

60. Many in the private military sector have also expressed a belief that commercial interests provide a strong incentive for upholding international law and human rights standards. ArmorGroup claim that its clients, many of whom are national governments, "exert the single most powerful influence over the company's activity. 'Reputation' has become the key watchword in business and the need to protect a reputation is the prime motivator towards legitimate and ethical performance and service delivery. Loss of reputation is, in ArmorGroup's business, always followed by a significant loss of business."[86] The Government must acknowledge that the loss of reputation in the private military sector could have far more serious consequences than the discrediting of Enron, Andersen, WorldCom and Merrill Lynch. The failure of a PMC operation could lead to the loss of civilian life. The penalties applicable to PMCs that breach Government regulations must therefore be sufficient to deter companies from embarking upon operations which might lead to human rights violations.

61. Denis MacShane appears to be convinced by these arguments. He told us that "any firm of any sort that was accused of committing human rights violations, if those allegations were shown to be true, would never receive any future contract of any sort. So, it would be signing its own business death warrant."[87] He also argued that "most of the people involved in these activities now are former highly trained professional soldiers who know that their chances of continuing in work are pretty slim if they behave in an unacceptable way."[88]

62. We are not, however, convinced that the checks and balances that apply to national armed forces can ever be applied with equivalent strength to the employees of PMCs. Though companies' vetting mechanisms may go some way towards ensuring that the individuals involved in private military operations are appropriately qualified, we also share the Green Paper's conclusion that "it is not an accident that the business of fighting for money often brings in unattractive characters."[89] Furthermore, the commercial incentive to refrain from human rights abuses and to uphold international humanitarian law is unlikely to apply where companies are confident that they will not be found out. These considerations strengthen the argument for strong regulation of PMCs.

UNDERLYING PROBLEMS AND STABILITY

63. The Campaign Against Arms Trade argues that the "use of mercenaries would reinforce the idea that military solutions can resolve conflict. Democracy, peace and justice would be better served if the resources which would otherwise be used by the UK government to control or licence mercenary activity are used to give positive support to or impose sanctions on troubled states or regions." They also argue that tighter controls on small arms, arms brokers and "conflict goods" would "do much to lessen the demand for mercenaries."[90]

64. In contrast to this view, Michael Bilton was prepared to offer a specific example in which a PMC had stabilized a situation: Executive Outcomes, he claimed, "did much sterling work in Angola [and] stabilized a destabilized situation ... where the oil fields were concerned."[91] This was also reiterated in the Government's Green Paper which stated that "although the numbers involved were small—Executive Outcomes never had more than 500 men in Angola and were usually fewer, compared with Angolan armed forces of more than 100,000 men—it is generally regarded as having played a critical part in securing victory for the government forces, the ceasefire and the Lusaka Peace Agreement—shaky as these last two remain."[92]

65. We agree that the imposition of military force cannot, on its own, solve the political, economic and social problems that contribute to conflict. Employing military force through public or private operations does not constitute an alternative to diplomatic initiatives and humanitarian and development work. PMCs are neither equipped nor trained to address underlying political or economic problems; neither, though, are national armed forces. The point here is that under certain circumstances, the establishment or maintenance of order through an increased international security presence, or through enhancing the effectiveness of national armed forces, can help to create conditions under which political negotiations can take place and effective systems of governance re-established.

66. This is where David Steward Howitt sees the potential for employing PMCs, in the absence of an alternative international security presence in many destabilised states. He points out that "Governance systems can only operate if they have revenue streams through which they can service their citizens. The provision of governance, be it health, education, social welfare and security, is something which needs to be provided [in conflict and post-conflict environments]... Where the most effective and constructive use of PMCs potentially lies is in assisting entities, polities and states, in stabilising environments so that stable revenue streams and effective government structures can be established."[93]

67. Although the services provided by PMCs will not by themselves solve underlying problems in unstable countries, we conclude that the employment of professional, responsible and well regulated PMCs could, in some circumstances, contribute to the establishment or maintenance of relative stability, under which lasting solutions to such problems might be worked out. We further conclude that PMCs may have a legitimate role to play in helping weak governments to secure revenue streams, for example by protecting border points and highways.

PROXIES FOR GOVERNMENTS

68. The Green Paper notes that it is "striking how many commentators assume a link between governments and PMCs or mercenaries, often on the basis of little evidence."[94]

69. The Campaign Against Arms Trade are concerned that "to licence, and thereby condone, the use of armed force by bodies other than publicly accountable military, security and police forces" would give rise to the "danger that, to distance itself, a future Government could use a private company to undertake an activity that many members of the public might find objectionable."[95] We recognise and share this concern. The case of MPRI in Croatia, which is cited in the Green Paper, is one example which could be interpreted in this way.[96]

70. The Green Paper argues that there is "nothing wrong with governments employing private sector agents in support of their interests."[97] We agree that, where these interests are legitimate, this is indeed the case. We also agree that "where such links are transparent they are less likely to give rise to misinterpretation."[98] Regulation might go some way towards clarifying the role of legitimate private military companies in public and international affairs, and help to ensure that illegitimate companies are never linked to British Government policies.

71. The danger that British based companies might be confused with British government forces or British foreign policy is increased by the tendency of some private military companies to imitate British military names and uniforms. Such imitation poses a danger to the integrity of British armed forces, and threatens to tarnish their excellent reputation. To reduce this risk, we recommend that the Government prohibit private military or security companies from using names similar to those of British regiments or fighting units, or from the use of any emblem, symbol or distinctive item of uniform similar to those of the British armed forces.[99]

MORAL OBJECTIONS

72. We share what the Green Paper calls the "natural repugnance towards those who kill (or help kill) for money ... even if the killing is necessary and is done in a just cause"[100] and are most uneasy at any notion that the British Government might sanction, through regulation, companies which recruit soldiers to fight other people's wars for money.

DOUBLE STANDARDS

73. The Green Paper notes that the "debate on PMCs is sometimes conducted as though PMCs are ipso facto bad and national armies good." It rightly points out that the professional standards of many national armed forces fall far below those of our own, and some have committed grave human rights abuses.[101]

74. We do not share the view that national armed forces personnel are necessarily better qualified or behaved than the employees of PMCs. However, it is the case that the ability to track armed forces personnel and to hold them to account for their actions is a powerful deterrent against illegal behaviour. Many of the employees of British based PMCs are former British military personnel who are well qualified to help impart the excellent standards of the British armed forces to those of other countries, thus helping to raise the standards of their armed forces and other security personnel. Improving the security sector of weak states is an important aspect of the international campaign against terrorism.

75. The Government already re-employs former British service personnel to assist with security sector reform.[102] PMCs can facilitate the transfer of British military training, even when the British Government is not available to pay for it. Regulation which granted licences to companies with such well qualified staff would reward such reputable companies, and help to eliminate those staffed with less suitable personnel.

62 Q49. Back

63 Q51. Back

64 Q2. Back

65 Q2. Back

66 The provisions of the Geneva Conventions and Statute of the International Criminal Court apply to individuals. Therefore, if PMC employees engaged in combat roles were to commit grave breaches of the provisions of international humanitarian law, they would be liable to prosecution for war crimes. The FCO also states that " mercenaries are subject to the rules of international humanitarian law and are liable to prosecution for war crimes if they commit grave breaches of those rules. Mercenaries should not have protection from prosecution for war crimes that is not available to lawful combatants". See Ev 44. Back

67 Green Paper para. 35. Back

68 Q102. Back

69 Regulating Private Military Companies: options for the UK Government. Chaloka Beyani and Damian Lilly, International Alert, August 2001, p.26 (ISBN: 1-898702-07-3). Back

70 Q131. Back

71 Q111 and attached footnote by witness. Back

72 Green Paper paras. 37-39. Back

73 Green Paper paragraph 38. However, mercenaries did carry out a coup in the Maldives in 1988. See http://www.onwar.com/aced/chrono/c1900s/yr85/fmald1988.htm. Back