Human Rights Annual Report 2008 - Foreign Affairs Committee Contents

5  Oversight of private military and security companies and contractors

Allegations of abuse at the British Embassy in Iraq


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]


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 disciplinary—and other—procedures 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 staff—including locally employed staff—are 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 contract—or 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]


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]


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]


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]


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,  Back

228   IbidBack

229   IbidBack

230   IbidBack

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, 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  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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