5 Oversight of private military and
security companies and contractors
Allegations of abuse at the British
Embassy in Iraq
THE ORIGINAL 2007 ALLEGATIONS
114. In our Report published in February 2009
on the FCO's annual report for 2007-08, we examined the allegations
that female staff at the British Embassy in Baghdad had been abused
by managers working for Kellogg Brown & Root (KBR), a defence
services provider contracted to the FCO.[220]
In April 2008 we had received a complaint from a member of the
public that:
Basically, British KBR managers were abusing their
Iraqi female staff. One of these women was fired after she did
not perform sexual favours. The Embassy conducted an initial investigation
and interviewed that woman along with two other local KBR employees.
They were all credible, their statements were consistent and they
had no motive to lie. The Deputy Ambassador believed them and
concluded that there were significant grounds to warrant a further
investigation.
115. The complainant claimed that the FCO had
subsequently failed to carry out an independent investigation
into the allegations, instead entrusting the task to KBR itself,
and that Iraqis who had spoken about the incident had lost their
jobs with KBR.[221]
116. In subsequent written and oral evidence
we raised with the FCO our concerns about this matter. We questioned
in particular why members of the KBR management team who had been
suspended continued to have access to KBR local staff; why the
complainant and three key personnel had not been interviewed by
the KBR investigatory team; and what the grounds were for dismissal
of two of the principal witnesses.[222]
Tom Porteous of Human Rights Watch expressed concern that "no
disciplinary measures were taken against the KBR staff. However,
the complainant and local staff who had supported the complainant's
allegations were dismissed."[223]
117. In relation to the obligations that the
FCO has for the treatment of staff employed by contractors overseas,
Sir Peter Ricketts, Permanent Under-Secretary at the FCO, told
us that:
The legal position is that we have a duty of care
for all the staff in our compound, in terms of their physical
safety. As good employers, we want to make sure that all our staff
and contractors are aware of our policies on discrimination and
sexual harassment. But it remains the obligation of the contractors
to manage their staff; we cannot take on the management of their
staff.[224]
118. In our February 2009 Report we commented:
We conclude that although the FCO feels it has acted
conscientiously and effectively in its handling of recent allegations
relating to the British Embassy in Baghdad, we do not believe
that it is appropriate in such circumstances for the investigation
of complaints against contractors' staff to be entrusted solely
to the contractors. We recommend that the Government should introduce
more effective means of monitoring the behaviour of Embassy contractors
including through the inclusion of relevant provisions in its
contractual agreements with future suppliers of services.
[225]
119. In its response to our Report, published
in April 2009, the Government continued to assert that it had
"dealt correctly" with the allegations, but it also
outlined steps it proposed to take in future to ensure that contractors
fulfil their duty of care "both during the procurement and
contract letting, and during contract performance".[226]
FRESH ALLEGATIONS IN 2009
120. In March 2009 Sir Peter Ricketts wrote to
us about a further set of allegations relating to KBR staff in
Baghdad:
These allegations, which were made to Embassy senior
management by an Iraqi member of KBR staff and immediately reported
to FCO, concerned misconduct by a female member of KBR's Iraqi
staff, in the form of abusive behaviour towards other locally-hired
KBR colleagues. It was further alleged that she was able to behave
in this way without sanction because of an improper but consensual
relationship with an expatriate KBR staff manager.[227]
An investigation team composed of two FCO officials
and two UK-based KBR staff were deployed within four days and
found:
no evidence to corroborate rumours of sexual misconduct
between the expatriate manager and the female local staff member
who was the subject of the complaint. They did find however that
the female member of staff had encouraged such rumours; that she
and four of her colleagues had engaged in violent, abusive and
intimidating behaviour towards other KBR local staff; and that
local KBR management had failed to deal satisfactorily with this
behaviour. As a result, KBR have dismissed the five local staff
concerned for gross misconduct, and the expatriate manager concerned
has been removed from the FCO contract in Iraq[228]
KBR acknowledged a failure of management standards,
which Sir Peter Ricketts described as being "of particular
concern in the light of the 2007 allegations". To address
these failures, KBR and the FCO agreed:
a thorough review of KBR's local management systems,
structures and practices in Baghdad. This will include ensuring
there are robust procedures in place to enable KBR's local staff
to raise grievances in confidence, and for better oversight of
expatriate KBR staff. We also agreed that the requirement for
high standards of behaviour and management should be codified
through new clauses in our contract with KBR. We will also apply
these provisions to similar contracts between the FCO and other
contractors as appropriate.[229]
121. Despite continuing to maintain that "the
primary responsibility for dealing with problems between and among
staff employed by a contractor should lie with the company concerned,"
Sir Peter Ricketts stated that "as our response to these
allegations shows, however, we accept that occasions may arise
when it is right to take action jointly."[230]
122. When we took oral evidence from the Foreign
Secretary in June 2009, we questioned him about the FCO's handling
of this matter. He denied that the inclusion of FCO staff in the
investigation team was an admission that KBR, and contractors
more generally, cannot be trusted to investigate allegations of
misconduct properly. He told us that :
We have contracts with them which uphold our own
employment practices and best standards, as well as what we expect
them to deliver as contractors of the UK Government. We expect
them to hold to those standards. There are various disciplinaryand
otherprocedures available if they do not. The FCO involvement
in the 2009 case reflected that case.[231]
Mr Miliband also denied that the problem lay in the
contract in place with KBR:
there is a local issue there, to make sure that all
staffincluding locally employed staffare aware of
our dignity at work policy and other practices. We have a dense
procurement relationship with a whole range of organisations and
I do not think the problem has been in the contractor the
allegation of a problem has not been in the contract. However,
we have a responsibility to make sure it is properly understood.[232]
123. Others remain less convinced that the 2007
allegations were properly investigated. Samer Muscati, a Canadian
lawyer who contacted us about the original allegations, told The
Times that the FCO "could have taken care of the situation
18 months ago [
] but by choosing to ignore the problem rather
than deal with it, they left the door open for more misconduct".
Tom Porteous was clear that "the FCO does have a responsibility
for the behaviour of its contractors within its embassy in Iraq".[233]
He stated that the investigation into the original allegations
was inadequate, adding that subsequent allegations of abuse were
a "consequence of the impunity that stemmed from this flawed
investigation".[234]
In its written submission Human Rights Watch alleged that the
affair has "seriously compromise[d] the ability of the FCO
to credibly promote respect for human rights outside of the Embassy
when it cannot even protect vulnerable Iraqis working within it".[235]
124. The Foreign Secretary confirmed to us in
his oral evidence that the FCO remains unwilling to reopen the
investigation into the original allegations. [236]
In March 2009, Sir Peter Ricketts told us that the team that investigated
the 2009 allegations believed that reopening an investigation
into the original 2007 allegations "would have been impossible,
given the passage of time". He added that:
in the course of an extremely thorough investigation,
they did not encounter any suggestion that sexual abuse or harassment
of local staff by expatriate managers was taking place, or had
done so in the past. I would also reiterate the point made by
the Foreign Secretary in his letter to you of 19 May 2008: that
the conduct and outcome of the 2007 investigation was collectively
reviewed in 2008 by a new Embassy senior management team, and
that senior officials in the FCO accepted their recommendation
that there were no grounds for re-opening the issue. That remains
our position.[237]
125. We reiterate our previous
conclusion that in cases like that of the allegations of abuse
concerning the British Embassy in Baghdad, it is not appropriate
for investigation of complaints against contractors' staff to
be entrusted solely to the contractors. We conclude that the proper
treatment of staff working for FCO-employed contractors overseas
should be considered to be an FCO responsibility. Therefore we
conclude that the inclusion of FCO officials in the team that
investigated the latest allegations of abuse by KBR staff at the
Baghdad Embassy is to be welcomed. We recommend that in order
for the FCO reliably to monitor the compliance of its contractors
with its own employment practices and standards, all similar allegations
of serious misconduct by or against contracted staff should be
investigated by a team that includes FCO representation. We further
recommend that provision for this to happen should be explicitly
made in future contracts. We conclude that it remains disappointing
that the FCO is unwilling to reopen the investigation into the
allegations in 2007 that female staff at the British Embassy in
Baghdad had been abused by managers working for KBR, given the
doubts that remain about the fairness and independence of the
investigation. We recommend that the Government reconsider its
position on this matter.
The regulation of private military
and security companies
126. As long ago as February 1999, our predecessor
Committee called upon the Government to publish "within eighteen
months [
] a Green Paper outlining legislative options for
the control of private military companies which operate out of
the United Kingdom, its dependencies and British Islands".[238]
This followed an examination of the involvement of the private
military and security company (PMSC) Sandline in Sierra Leone.
A Green Paper was subsequently published in February 2002. In
its foreword the then Foreign Secretary described the Committee's
recommendation as "a timely and useful suggestion".[239]
The Committee addressed the matter further in a subsequent Report,[240]
and its call for regulation of PMSCs was supported by the House
of Commons Defence Committee in its 2005 Report on post-conflict
operations in Iraq.[241]
127. Notwithstanding these repeated recommendations
from Committees of the House, there has been a significant delay
on the part of the Government in bringing forward concrete proposals.
A review completed in 2005 identified a variety of regulatory
options, including self-regulation through a code of conduct,
legislation and a register of approved companies. The Government
has also considered international regulation.[242]
Last year Lord Malloch-Brown,
Minister of State at the FCO, admitted to us that
[T]he delay has not been acceptable, and we are hoping
that on our watch David Miliband and I will solve this persistent
irritant. I have to say that I do not think that the delay has
been because of any aberrant desire to prevent regulation. It
has had more to do with the fact that regulation is quite tricky
for an international business where most activities take place
offshore. There is concern about how we can develop a regulatory
structure that is credible and effective enough without just driving
companies, if you like, offshore to register somewhere else.
He added that the Government was "now in the
late stages of trying to get agreement across Whitehall on a way
forward on this, so I hope that relief is in sight".[243]
In our human rights Report last year, we repeated our call
for action, recommending that:
the Government should announce its intention to introduce
the relevant legislation in the forthcoming Queen's Speech. We
further recommend that such legislation should impose strict regulation
on private security companies, and ensures that these companies
can be prosecuted in British courts for serious human rights abuses
committed abroad."[244]
The Government response to our Report noted that:
there is already legislation penalising grave breaches
of the Geneva Conventions, as well as torture, genocide, war crimes
and crimes against humanity. This applies to acts committed by
United Kingdom nationals overseas abroad, ensuring that such persons
can be prosecuted for these most heinous acts even if they take
place overseas.[245]
THE APRIL 2009 GOVERNMENT CONSULTATION
128. On 24 April 2009, the Foreign Secretary
made a Written Statement announcing the launch of a public consultation
on the regulation of PMSCs, describing their role as follows:
Private Military and Security Companies (PMSCs) provide
security abroad for private sector contractors, governments and
other bodies, including aid agencies and NGOs. They carry out
a variety of duties, from close protection of personnel and static
protection of premises such as ministries and embassies, to risk
and security consultancy. They provide a vital and necessary
role in hostile environments, and enable the Government to fulfill
its policy objectives in Iraq and Afghanistan by providing essential
security services, as well as ensuring operational NGOs are able
to carry out important humanitarian work.[246]
129. The closing date for the consultation was
17 June 2009. The consultation paper proposed a government policy
which would not involve legislation but would rely on voluntary
self-regulation by the companies concerned. The paper set out
the Government's proposed strategy as follows:
Working with the UK industry to promote high standards
through a code of conduct agreed with and monitored by the Government;
Using our status as a buyer to contract only those
companies that demonstrate that they operate to high standards;
and
An international approach to promote higher global
standards, based on key elements of the UK approach.
[
] To this end, we will:
Build on the initiative by the Swiss government and
the International Committee of the Red Cross to create internationally
agreed industry standards within two years[247];
and
Build a convention of states and key buyers that
will be able to insist that PMSCs wishing to bid for future contracts
will be required to adhere to the internationally agreed standards.
This will set a benchmark for private security procurement and
practice, and help drive up standards globally.[248]
The accompanying impact assessment described the
preferred option as "high impact and high feasibility",
on the basis that it can be introduced quickly, as "fair
cost" and as "the most pragmatic solution [
] and
the only one that is results-focussed". The consultation
included two further options described as "low impact, low
feasibility": to license individual operations, or to license
individual operations with a Government-approved register of contractors.[249]
The consultation paper argued that licensing would prove unenforceable
since breaches would likely take place outside the UK, in situations
where obtaining evidence would be difficult and in countries from
which extradition might not be possible. The Government argued
that licensing could drive companies to move contracts offshore
or to subcontract to others, and that introducing a system of
licensing would be disproportionate to the scale of the problem
and incur excessive costs. It further argued that, were a register
to be kept, the criteria for inclusion could easily be challenged
in the courts and that the system could be perceived as placing
non-UK EU based companies at a competitive disadvantage.[250]
CRITICISMS OF THE GOVERNMENT PROPOSALS
130. Hitherto PMSCs have adopted a self-regulatory
approach through their trade body, the British Association of
Private Security Companies (BAPSC), formed in 2006. Professor
Nigel White, Professor of International Law at the University
of Sheffield, told us that BAPSC attempts to regulate its members
through "aggressive self-regulation" using "financial
sanctions and suspending or withdrawing membership rights",
and that it has "lobbied the Government for the introduction
of an effective complaint system such as an independent ombudsman".
Professor White states that the industry believes that self-regulation
"must be complemented by national or international regulatory
or oversight schemes" and that "the Government is avoiding
any reputational risks of being associated with PMSCs or condoning
illegal contracts by not committing to regulation or oversight."[251]
The Campaign Against the Arms Trade argued that whilst the Government
argues that licensing might drive PMSCs to move offshore, "the
same could be said of those trading in military equipment, but
this has not prevented the Government strengthening controls
on trafficking and brokering".[252]
Sanctions
131. A number of witnesses agreed with the view
expressed by our predecessor Committee that "a voluntary
code is insufficient to regulate the private military industry".[253]
Amnesty International's Campaign Director, Tim Hancock, has stated
that a self-regulatory system "would effectively grant [PMSCs]
impunity to do whatever they like," adding "we need
a robust system that is backed-up by legislation".[254]
Kate Allen told us that:
the proposals are absolutely insufficient and cannot
hold overseas military or security operations to account. They
are extraordinarily weak. There is a lack of jurisdiction to prosecute
contractors in the UK for the crimes that they commit abroad.
So we certainly call upon the Government to make their proposals
ones that put in place legislation that enables contractors to
be held to account. Given that about 70% to 85% of private military
and security companies are based in the UK and the US, and that
the UK Government are, as the Chairman reminded us, a major user
of these companies, especially in Iraq and Afghanistan, it is
essential for the UK Government to put in place greater restrictions,
rather than a voluntary code of conduct that, even then, does
not have to be signed up to.[255]
132. The Campaign Against the Arms Trade stress
that the Government is only one employer of PMSCs.[256]
Professor White cast doubt on the likely success of the scheme,
suggesting that "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."[257]
133. In response to these criticisms, the Foreign
Secretary asserted to us that the Government's proposed option
was a viable solution with sufficient sanctions in place to punish
violation of the code of conduct:
The best sanction is that companies would no longer
get contracts from either ourselves, the Americans, the Chinese
or the Russians. We are trying to build on the Swiss initiative
that you mentioned [see paragraph 129 above]. We have been working
with not just the private military security companies themselves
but human rights and other organisations, including Amnesty International,
to try to ensure that this code is as robust as possible. It is
critical that all the main countries adhere to it. It is not just
about getting companies to sign up; it is not just self-regulation.
It is about us as purchasers and contractors, as people who procure
these services, doing so only with those companies that sign up.[258]
THE INTERNATIONAL CONTEXT
134. Both the United States and South Africa
have opted to regulate PMSCs using legislation. Professor White
describes the US approach as creating "licensing regimes"
and the South African approach as operating a "heavily regulatory"
regime. War on Want outlined the legislative approach in the US:
[S]trident steps have been taken to legislate on
this issue which puts the British government's record to shame.
In 2007 the United States House of Congress passed the Expansion
and Enforcement Act of 2007 which clarified USA jurisdiction to
prosecute contractors of all USA agencies operating near a conflict
area. The Bill established an FBI unit to investigate incidents
of use of force by contractors and requires the Department of
Justice to publically report on its handling of cases of contractor
crime which are referred to it. President Obama then introduced
companion legislation in the Senate, the Security Contractor Accountability
Act of 2007 (S. 2147). In April 2009, the Transparency and Accountability
in Security Contracting Act was introduced which would ban PMSCs
from participating directly in battle or interrogating detainees.
It would also require companies to provide detailed reports on
their operations, which would then be stored on a state database
for all security contracts, including costs and casualties.
If contractors violate USA and international law they would be
barred.[259]
135. The Foreign Secretary criticised the South
African approach, arguing that:
I think I am right in saying that South Africa has
introduced a law but has no prosecutions under it [
] The
experience of this South African legislation is that, every year
that goes by, it makes one more concerned that passing a law won't
do the trick. If we can, along with the other main countries that
use private military security companies, establish a set of international
benchmarks for good practice that would be a quicker way of making
progress.[260]
Professor White acknowledged the shortcomings of
existing international regimes, proposing as an alternative a
pan-European approach:
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.
[
] 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.[261]
The Foreign Secretary told us that the Government
intends to review the self-regulatory system after three years
of operation, to assess "how the new system has worked, and
how our contracting power has been used".[262]
136. We conclude that it is
regrettable and disappointing that after such a long delay the
Government has proposed a system of regulation for private military
and security companies (PMSCs) based on a voluntary code of self-regulation.
We remain unconvinced that anything other than a legislative solution
can provide suitably strict regulation of PMSCs operating from
the UK or employed overseas by the Government. We do not believe
that a potential loss of business constitutes a sufficient sanction
to control PMSCs' behaviour. We recommend that that when the Government
issues its response to the recent consultation exercise, it commits
itself to pursuing a legislative solution to the regulation of
PMSCs at an EU or international level.
Diplomatic immunity
137. We asked the Foreign Secretary whether any
PMSC employees would have diplomatic immunity that could protect
them from prosecution under the national law of the country in
which they operate.[263]
In response he told us that:
Some individuals contracted to the FCO in Iraq and
Afghanistan to undertake private security contracts for the protection
of our diplomatic missions do have certain immunities, including
in particular immunity from criminal jurisdiction, under the Vienna
Convention on Diplomatic Relations.[264]
138. We recommend that, in its
response to this Report, the Government gives us full particulars
of the individual members of staff who enjoy diplomatic immunity,
and the grounds on which this has been justified, and that it
supplies us with a full statement of its policy on the provision
of diplomatic immunity to staff who are not directly employed
by the Government.
220 Foreign Affairs Committee, Second Report of Session
2008-09, Foreign and Commonwealth Office Annual Report 2007-08,
HC 195, paras 174-80 Back
221
Ibid., Ev 99 Back
222
Foreign Affairs Committee, Second Report of Session 2008-09, Foreign
and Commonwealth Office Annual Report 2007-08, HC 195, Ev
130 Back
223
Q 56 Back
224
Foreign Affairs Committee, Second Report of Session 2008-09, Foreign
and Commonwealth Office Annual Report 2007-08, HC 195, Ev
130., Q 192 Back
225
Foreign Affairs Committee, Second Report of Session 2008-09, Foreign
and Commonwealth Office Annual Report 2007-08, HC 195, para
180 Back
226
Response of the Secretary of State for Foreign and Commonwealth
Affairs to the Second Report of the Foreign Affairs Committee,
Session 2008-09, Foreign and Commonwealth Office Annual Report
2007-08, Cm 7585, para 35 Back
227
Letter from the Permanent Under Secretary of State, FCO, DR 323,
4 March 2009, published on the Committee's website, http://www.publications.parliament.uk/pa/cm200809/cmselect/cmfaff/memo/departmentreport/ucm32302.htm
Back
228
Ibid. Back
229
Ibid. Back
230
Ibid. Back
231
Q 172 Back
232
Q 174 Back
233
Q 56 Back
234
Q 56 Back
235
Ev 106 Back
236
Q 173 Back
237
Letter from the Permanent Under Secretary of State, FCO, DR 323,
4 March 2009, published on the Committee's website, http://www.publications.parliament.uk/pa/cm200809/cmselect/cmfaff/memo/departmentreport/ucm32302.htm Back
238
Foreign Affairs Committee, Second Report of Session 1998-99, Sierra
Leone, HC 293, para 96 Back
239
Private Military Companies: Options for Regulation,
FCO 2001-02, HC 577 Back
240
Foreign Affairs Committee, Ninth Report of Session 2001-02, Private
Military Companies, HC 922, para 108 Back
241
Defence Committee, Sixth Report of Session 2004-05, Iraq: An
Initial Assessment of Post-Conflict Operations, HC 65 Back
242
Response to FAC, Ninth Report of Session 2007-08, Human Rights
Annual Report 2007, Foreign and Commonwealth Office, Cm7463,
September 2008, para 47. Back
243
Foreign Affairs Committee, Ninth Report of Session 2007-08, Human
Rights Annual Report 2007, HC 533, Q89 Back
244
Ibid.,para 82 Back
245
Response to FAC, Ninth Report of Session 2007-08, Human Rights
Annual Report 2007, Foreign and Commonwealth Office, Cm7463,
September 2008, para 49 Back
246
FCO, Consultation on promoting high standards of conduct by Private
Military and Security Companies (PMSCs) Internationally, Impact
Assessment, April 2009, para 1 Back
247
Launched in 2005 by the Swiss Ministry of Foreign Affairs' Legal
Directorate and the International Committee of the Red Cross (ICRC),
to promote respect for international humanitarian law (IHL) and
human rights law (HRL) on the part of PMSCs operating in situations
of armed conflict or post-conflict. It was a multi-stakeholder
initiative that included states, NGOs, industry and academia.
The states taking part - including the UK - agreed the document
in the Montreux plenary on 17 September 2008. Back
248
HC Deb, 24 April 2009, col 27WS Back
249
FCO, Consultation on promoting high standards of conduct by
Private Military and Security Companies (PMSCs) Internationally,
Impact Assessment, April 2009 Back
250
Ibid., pages 12-13 and accompanying Impact Assessment,
pages 3-4 Back
251
Ev 156 Back
252
Ev 84 Back
253
Foreign Affairs Committee, Ninth Report of Session 2001-02, Private
Military Companies, HC 922 Back
254
The Guardian, 24 April 2009, page 16 http://www.guardian.co.uk/world/2009/apr/24/private-military-firms-government
Back
255
Q 58 Back
256
Ev 84 Back
257
Ev 157 Back
258
Q 177 Back
259
Ev 153 Back
260
Q -177 Back
261
Ev 157 Back
262
Q 176 Back
263
Q 170 Back
264
Ev 52 Back
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