House of Commons - Foreign Affairs Committee

Human Rights Annual Report 2008 - Foreign Affairs Committee Contents

Submission from Professor N.D.White, Professor of International Law, University of Sheffield School of Law

THE RESPONSIBILITIES OF THE FCO FOR SECURING THE HUMAN RIGHTS OF BRITISH CITIZENS AND OTHERS OVERSEAS INCLUDING:

The oversight of contractors, including private security companies, employed by the FCO and UK Posts overseas:

Submission by Sheffield University, School of Law, PRIV-WAR group[161]

This submission outlines:

— The role and activities of Private Military and Security Companies (PMSCs) employed overseas by the Government.

— Self-regulation by the industry.

— International standards.

— Possible applicable national laws.

— Problems in oversight and regulation.

THE ROLE AND ACTIVITIES OF PMSCS EMPLOYED OVERSEAS BY THE GOVERNMENT

1. PMSCs now offer a range of services from military activities to support for humanitarian operations. The British market is characterised by four areas with some PMSCs attempting to provide all services while others find a niche in the market. The first area comprises more traditional security and risk management services. These services include strategic and operational risk management normally for companies operating in conflict, post-conflict or risk-prone environments. Typically this includes close protection and asset protection, convoy security, event security, travel security for individuals and other business and investigation services. The second area involves support for post-conflict reconstruction efforts as in Iraq and Afghanistan. PSMCs offer personal and site security services to non-military actors including humanitarian agencies, international organisations, states and NGOs operating in regions characterised by instability. The related third area demonstrates the expanding nature of PMSC activity into new fields such as state building, supporting and providing humanitarian and disaster relief and development tasks. PMSCs are involved with infrastructure, redevelopment and communications.[162]

2. The fourth area concerns activities that were previously performed by national militaries which are now increasingly outsourced to private companies. These services are offered to the MoD as well as foreign regimes. They include the provision of personal security for senior officials in post-conflict environments, military and non-military site and convoy security and training of police and military personnel. PMSCs offer military training, special-forces training, surveillance and intelligence gathering training, aviation security and public security. They provide technical support, maintenance, operate complex weapon systems and provide mine clearance services. The provision of full military services in conflict and post-conflict situations is extremely difficult to monitor and may give rise to infractions of criminal law such as theft, rape and murder. This area is the most controversial, giving rise to accusations of war profiteering and unethical behaviour. The ideological climate of the UK and the US, which is favourable towards privatisation of public services, has enabled this development. Furthermore, the involvement of the UK and US in operations requiring the projection of military force, and the limited period of service in the British armed forces contributes to the increase in demand and supply for PMSCs.[163]

3. For example, Control Risks Group (CRG) is a provider of security and armed guards for British embassies and consulates. Its main client is the British Government. For the last four years its main contract has been to deliver arms security support to the UK Government in Iraq and Afghanistan. This includes armed close protection operators. These individuals have CRG uniforms and are qualified in weapons handling and safety, close protection services and drive armoured vehicles. There is additional training for team based operations. According to CRG its employees have only used weapons five times in the last four years and that was because the lives and safety of their clients were at risk.

4. A further example: from 2003-07 ArmorGroup was recruited by the FCO to provide protective security services in Afghanistan, including Kandahar and Helmand provinces. This included guard services and mobile security services, close protection and site security teams for Government personnel and UK organisations. This was part of the programme to reconstruct and redevelop Afghanistan. The ArmorGroup also provided off-road driving training for the UN and "Hostile Environment Awareness Training" for the Afghan police and UK Government agencies. In one incident in June 2007, a roadside improvised explosive device (IED) detonated next to a convoy of vehicles; the client was safely escorted back to the British Embassy.[164]

5. The London-based PMSC Hart Group Limited was hired in 2005 to provide protection for CPA staff in Iraq, which was intended to be a "passive" task. If they came under direct attack by Iraq insurgents the employees were instructed to call on military support from regional coalition forces. However, the managing director of Hart Group stated that such support was not forthcoming, consequently putting his employees in circumstances where they were obliged to hold positions of a strategically sensitive nature.[165] This indicates the difficulties inherent in the execution of PMSCs tasks when the dangers they face cause them to become engaged in situations that go beyond their mandate. While PMSCs may be able to meet such situational demands, unclear rules of engagement and mandates result in an increasing lack of control over the precise nature of PMSC operations.[166]

SELF-REGULATION BY THE INDUSTRY

6. A pool of highly skilled individuals is available to PMSCs including fully-trained military personnel who have left the armed forces and ex-members of the police service. Also, given the diversification of PMSC activity they now recruit former expert staff from governmental departments, NGOs and humanitarian organisations thereby widening the category of persons employed by PMSCs.

7. The British Association of Private Security Companies (BAPSC), formed in 2006, claims that PMSCs are becoming more diligent in the recruitment of personnel ensuring that individuals are properly vetted. As part of the requirements of membership of BAPSC PMSCs must maintain employee records containing up-to-date information on disciplinary and grievance information and full employment history.[167] PMSCs are becoming unwilling to employ ex-servicemen with a dishonourable discharge or criminal record.[168] The BASPC Charter requires that PMSCs and their personnel observe all rules of international law, humanitarian and human rights law and all relevant international protocols and conventions although it does not specifically state the necessary obligations. PMSCs accept the obligation to promote compliance with UK values and interests and with the laws of the countries in which its members operate. To this end, the Charter requires that PMSCs must provide guidance on the substance and the need to comply with international legal statutes, to ensure that personnel are appropriately trained, and that precautions are taken to protect staff including the provision of protective equipment, adequate weapons, medical support and insurance.[169] In order to become a full member to the BAPSC, PMSCs must ensure that a defined disciplinary procedure is in place to monitor the activities of personnel.[170] The BAPSC Charter further requires that PMSCs must decline to accept contracts which will conflict with human rights legislation or where there is a likelihood that the service under contract will involve criminal activity.[171] PMSCs further commit not to contract where the provision of services might adversely affect the military or political balance of the country of delivery or to provide lethal equipment where there is a possibility that human rights will be infringed.[172]

8. In the absence of legislation, PMSCs have adopted a self-regulatory approach to the conduct of their activities. The BAPSC was launched in 2006 by leading members of the private security industry under the chairmanship of Andrew Bearpark. The formation of BAPSC was the first step towards self-regulation of the industry in recognition of the need to raise operational standards through the establishment of industry codes of conduct. The purpose of the BAPSC is to promote, enhance and regulate the interests and activities of UK-based PMSCs providing armed security services in countries outside the UK. The BAPSC represents the interests and activities of its members in matters of proposed or actual legislation with the aim to influence the political process and establish a firm legal basis for the activities of British PMSCs. It believes that raising operational standards of the industry to ensure compliance with international humanitarian law and human rights standards will be best achieved through effective self-regulation in partnership with the UK Government and international organisations. .

9. Membership of BAPSC is restricted to UK-based security firms providing armed security services overseas.[173] All UK-based firms may apply for membership subject to the membership criteria and the principles of the Charter. The BAPSC Charter commits the members to transparency implying that they must disclose corporate structures and relations with offshore bases.[174] Provisional membership is granted after a series of "Basic Checks" by the BASPC Membership Committee, chaired by the Director General of the BAPSC and including executive members elected by the General Assembly. Full BAPSC membership is granted by the Membership Committee on completion of "Due Diligence Documentation" and "Self Assessment Workbook" designed to ensure adherence to BAPSC standards and to promote best corporate practice.[175]

10. BAPSC states that it will exert pressure on its members to comply with standards by imposing financial sanctions and suspending or withdrawing membership rights. It has lobbied the Government for the introduction of an effective complaint system such as an independent ombudsman to collect complaints, investigate and process them. This is claimed to demonstrate an "aggressive self-regulation"[176] approach and a commitment to drive up standards. Further to this, BASPC has introduced compulsory training courses and random site inspections, sanctions and fines.

11. However, the industry recognises that greater regulation and/or oversight is indispensible to enhance respectability and legitimacy by putting industry operations on a firm legal basis and outlawing disreputable companies. It argues that self-regulation has the potential to be an efficient and effective means of social control but must be complemented by national or international regulatory or oversight schemes with the necessary political will to co-operate.[177] The industry considers that the Government is avoiding any reputational risks of being associated with PMSCs or condoning illegal contracts by not committing to regulation or oversight. In the meantime, it is felt that self-regulation is fundamental for the setting of industry standards and the Government is urged to take into account legitimate business interests to ensure that the British PMSC industry is not placed at a disadvantage.[178]

INTERNATIONAL STANDARDS

12. The BAPSC supported, and has stated that it will incorporate the good practices contained in, the "Montreux Document on Pertinent International Legal Obligations and Good Practices of States Related to Operations of Private Military and Security Companies during Armed Conflict". This was agreed on 17 September 2008 following participation by 17 Governments[179] and the International Committee of the Red Cross (ICRC) with support from NGOs and industry representatives. The Montreux Document promotes respect by states and PMSCs for international humanitarian law (IHL) including the Geneva Conventions and Additional Protocols and human rights law (HRL). It contains separate guidance for contracting states, territorial states and home states but also aims to provide valuable guidance for PMSCs in their interactions with Government clients and host states. The document is not legally binding but seeks to clarify the applicable law and thereby strengthen compliance with IHL and respect for HRLs. However, it is problematic in that it infers positive as well as negative obligations on states, which will have to commit the necessary resources. It is limited primarily to situations of armed conflict, when in many circumstances PMSCs are deployed to post-conflict zones which do not cross the threshold of "armed conflict" for the application of IHL. It also presumes that PMSC personnel are civilians under IHL and therefore normally enjoy a protected status, and only have to comply with HRL "to the extent they exercise governmental authority". Its impact on international law, given its relatively narrow representative base, remains to be seen.

13. In relation to territorial states, the Document states that PMSCs should obtain authorisation to provide military and security services on the territory by way of an operating licence. A corporate operating licence would be valid for a limited and renewable period while a specific operating licence would be valid for specific services. Individuals should also register or obtain a licence to carry out military or security services for PMSCs. Equally, home states are encouraged to have an authorisation system for the provision of military and security services abroad. A central authority should be designated for granting authorisations with adequate resources to determine whether the PMSC has the capacity to comply with national law, IHL and HRL. Transparency of the authorisation procedure should be ensured by public disclosures. The criteria for granting an authorisation include: respect for IHL and HRL by PMSCs; notification of any subcontractors which must be able to demonstrate conformity with national law IHL and HRL; investigation of any past conduct of PMSCs and disciplinary measures taken to rectify any situation; the keeping of up-to-date personnel and property records; meeting the training and welfare needs of personnel; respect for international organisations and regulation, especially rules on the use of force and firearms, as well as policies against bribery and corruption; the lawful acquisition of weapons. States must also ensure systems are in place to monitor compliance with the terms of authorisation, to impose sanctions on PMSCs for violations and to ensure accountability mechanisms are in place. Equivalent provisions are contained for the home state authorisation system.[180]

POSSIBLE APPLICABLE NATIONAL LAWS

14. The 1870 Foreign Enlistment Act is the only UK legislation directly related to the overseas activity of PMSCs and is largely ineffectual with general agreement that it should be repealed. Provisions of the Export Control Act 2001, and human rights and war crimes legislation can be applied to PMSCs but specific legislation aimed at PMSCs would improve standards and provide clearer lines of accountability. The Human Rights Act 1998 and the International Criminal Court Act 2001 have relevance, but have limitations of both jurisdiction and substance. Domestic criminal law has limited impact extraterritorially.

15. The application of military law with the new Armed Forces Act 2006 raises interesting questions for PMSCs in the UK but the ramifications of this piece of legislation are as yet unclear. The Act revises the list of persons who are subject to service jurisdiction by virtue of s. 370 and Schedule 15. Schedule 15 paragraph 7 (1) provides that a person is within this paragraph (subject to paragraph 11) if (a) he is designated for the purposes of this paragraph by or on behalf of the Defence Council or by an officer authorised by the Defence Council; and (b) he is outside the British Islands. According to Schedule 15 paragraph 7 (2) a person may be designated for the purposes of this paragraph only if it appears to the Defence Council or the authorised officer that it is desirable to do so (b) for the protection of other persons (whether or not members of any of Her Majesty's forces) and (c) for the purpose of maintaining good order and discipline. This gives rise to the possibility that PMSCs could fall within the ambit of the Act. However, if military jurisdiction was used to close the accountability gap for civilian contractors, the process should be "civilianised" within the military structure with an effective complaints system.

16. Although the Private Security Industry Act of 2001 regulates the industry within the UK (by virtue of s.26), by providing for a licensing and approvals Authority for activities such as guarding, door supervision, and security consultancy, there is no legislation directly applicable to the overseas activities of PMSCs, despite the likelihood of greater human rights abuse in these situations.

PROBLEMS IN OVERSIGHT AND REGULATION

17. There is little regulation of the private military and security industry in the UK despite the widening scope of application of PMSCs and increasing reliance on the industry by the UK Government. The announcement by the Foreign Secretary in May 2009 in effect of an enhanced system of self-regulation took place seven years after the Green Paper indicated that self-regulation was the least acceptable option.[181] The model outlined by the Foreign Secretary would be based on the adoption of "soft law" codes of conduct at both national and international levels containing key IHL and HRL standards. The international code of conduct would be based on the Montreux Document. Compliance review would be conducted at both national and international levels. Enforcement may be achieved by fines or sanctions, but in reality the main sanction is likely to be the naming and shaming of companies who regularly violate the codes of conduct. Certainly evidence of compliance with international codes of conduct by companies in other areas is sparse.[182]

18. Industry efforts at self-regulation have made a start at standard setting but it is necessary to still consider the regulatory approach. With the lack of real national progress, the prospects of a European approach are beginning to be considered. There may be some progress to be made in suggesting European framework legislation as this will overcome problems of enforcement among the European States. European legislation which provides a consistent regulatory framework across the member states will make it more difficult for PMSCs to relocate to a member state with a less arduous national regime.

19. The definitional problems faced in the UN context (where the focus has traditionally been on mercenaries) should be acknowledged in the drafting process of possible European legislation which should be free from political influence. Loopholes and insignificant penalties have undermined the effectiveness of the US and South African regimes and contrasting opinions on the value of each approach draws further attention to the difficulties of reaching agreement on the way forward. It is necessary to consider the UN, US and South African approaches with and further amendments in mind to produce legislation more suitable to the industry as it develops. The different models of regulation from the heavily regulatory regime of South Africa, to the licensing regimes of the US and the laissez faire approach of the UK should be drawn upon in the search for appropriate regulation of the private military and security industry. A European approach which takes into account these difficulties while pertaining to the minimum standards contained therein will reduce relocation of PMSCs, encourage compliance with the legislation and outlaw disreputable companies.

May 2009

161 Professor Nigel White, Kerry Alexander, Ali Bohm and Christy Shucksmith. PRIV-WAR is an EU FP7 funded project involving seven European Universities looking at the legal and regulatory issues that arise from the increased use of PMSC's in conflict and post-conflict situations-see www.priv-war.eu. This submission draws on some material from our report on "The Regulatory Context of PMSCs in the UK" available on the website. Back

162 Bearpark and Schulz, "The Future of the Market", Chesterman and Lenhardt (eds), From Mercenaries to Market: The Rise and Regulation of Private Military Companies (2007) 240-1. Back

163 Ibid., 241-2. Back

164 Employee Awarded Prestigious Bravery Honour for Iraq Rescue http://www.armorgroup.com/mediacentre/newsarchive/?id=33234. Back

165 BBC Radio 4 File on 4 programme, broadcast at 20.00, 25 May 2004, full transcript available at URL <http://news.bbc.co.uk/1/hi/programmes/file_on_4/3708232.stm>. Back

166 Private Security Companies, The Case for Regulation, SIPRI Policy Paper No.9, Caroline Holmqvist available at http://books.sipri.org/product_info?c_product_id=191. Back

167 BASPC Self Assessment Workbook 39 http://www.bapsc.org.uk/downloads/BAPSC%20Self-Assessment%20 Workbook.pdf. Back

168 Ibid. iii. Back

169 BAPSC Charter http://www.bapsc.org.uk/key_documents-charter.asp. Back

170 BASPC Self Assessment Workbook 42 . Back

171 BAPSC Charter governing principles 4 and 5. Back