Regulation and control of private military companies: The legislative dimension

Abstract

The demand for private military services is likely to increase in the near future, a point made in the government's 2002 Green Paper on options for regulation. As a consequence of this, private military companies (PMCs) will continue to have an impact on international security and stability. The introduction of a suitable regulatory system will therefore be vital to ensuring such an impact by UK PMCs is of a positive nature. The article outlines the six regulatory options in the Green Paper and a seventh option not included, discussing the advantages and disadvantages of each option and the potential impact of each on the actions of UK PMCs operating on the international stage.

Notes

1. Christopher Beese, Chief Administrative Officer, ArmorGroup, personal communication, 15 Dec. 2003.

2. Ibid.

3. T. Catán and S. Fidler, ‘The Military Can't Provide Security. It Had to be Outsourced to the Private Sector and That Was Our Opportunity’, Financial Times, 29 Sept. 2003

4. S. Mallaby, ‘Mercenaries Are No Altruists, But They Can Do Good’, Washington Post, 4 June 2001.

5. W. Reno, Warlord Politics and African States (London: Lynne Rienner Publishers, 1998), pp.1–15.

6. The seventh option was put forward by Dr Kevin O'Brien, Senior Policy Analyst, RAND Europe, in his paper, ‘Private Military Companies: Options for Regulation’, presented at a conference on The Green Paper at The University of Birmingham, Centre for Studies in Security and Diplomacy, 24 June 2002.

7. Christopher Beese, personal communication, 15 Dec. 2003. Beese gives a good example of the type of unrealistic challenges already facing the industry when he points to ArmorGroup's experience of providing armour for personnel operating in Iraq on a government contract, highlighting the need for any regulatory system to be responsive to what is happening on the ground. ArmorGroup, Beese points out, is contractually obliged to, and can provide, armour immediately to equip personnel deployed within days of request in support of a government contract, but has to wait six weeks for an export licence to be granted. For Beese, the government's mechanism for compliance with necessary sanctions control over personal protective equipment is unrealistic and if extended to contracts for licensing military/security activities would place companies at an even greater disadvantage threatening business interests and the lives on their employees working in countries such as Iraq.

8. Foreign and Commonwealth Office, ‘Private Military Companies: Options for Regulation’, The Green Paper (London: The Stationery Office, 2002), p.4.

9. The ‘arms to Africa’ affair concerns Sandline International's involvement in the civil war in Sierra Leone from 1997 to 1998. The company made a contract with President Tejan Kabbah to provide him with help, including military equipment, to support his return to power. Foreign Affairs Committee, ‘Second Report’, Sierra Leone (London: The Stationery Office, 1999), p.xivi.

10. Foreign Affairs Committee, Private Military Companies, Ninth Report of Session 2001–02, Response of the Secretary of State for Foreign and Commonwealth Affairs, Cm 5642 (London: The Stationery Office, 2002).

11. Andrew Mace, Head of Political Section, United Nations Department, Foreign and Commonwealth Office, personal letter, 26 Nov. 2003.

12. Interview with Michael Grunberg, Official Spokesperson, Sandline International, London, 24 June 2002, and e-mail communication with Christopher Beese, 12 Nov. 2003.

13. Foreign and Commonwealth Office, Green Paper, pp.4–5.

14. Ibid., pp.4–5.

15. International Alert publications on the privatization of security detail why PMCs need to be regulated. For details of these publications see <http://www.international-alert.org/publications.htm>, accessed 30 Dec. 2003.

16. C. Adams, ‘Straw to Back Controls over British Mercenaries’, The Financial Times, 2 Aug. 2002.

17. Menzies Campbell, Response to the Green Paper, unpublished document, August 2002.

18. For a detailed discussion on the issues surrounding the need to regulate PMCs see Foreign Affairs Committee, Private Military Companies, Ninth Report of Session 2001–02, HC 922 (London: The Stationery Office, 2002); Foreign and Commonwealth Office, Green Paper; C. Beyani and D. Lilly, Regulating Private Military Companies: Options for the UK Government (London: International Alert, 2001).

19. J. Ashworth, ‘Ex-SAS Protect Firms in Iraq’, The Times, 21 July 2003.

20. Memorandum from O’Brien to the Foreign Affairs Committee, Private Military Companies, Appendix 3, Ev.53.

21. Foreign and Commonwealth Office, Green Paper, p.22.

22. United Kingdom Strategic Export Control Annual Report 2003, <www.fco.gov.uk/reports/strategicexportcontrols>, accessed 22 April 2005.

23. Lord Diplock, Sir Derek Walker Smith and Sir Geoffrey de Freitas, Report of the Committee of Privy Counsellors Appointed to Inquire into the Recruitment of Mercenaries Cmnd. 6569 (XXI) (London: The Stationery Office, 1976), p.3. Otherwise known as the Diplock Report.

24. Ibid., p.3.

25. Ibid., p.4.

26. Foreign and Commonwealth Office, Green Paper, p.23.

27. The relevance of this argument depends on a priori value judgements about the nature of the problem created by the recruitment of mercenaries. Only if one takes the view that mercenary activities is a lesser order issue does the question of the practical effect of a ban become relevant. Moreover, given the concern shown by PMCs and PSCs over maintaining a good reputation, the majority of companies working in this area profess a very clear concern to abide by national law. The few companies that failed to do so would, of course, become objects of legal action.

28. Beyani and Lilly, Regulating Private Military Companies.

29. Foreign and Commonwealth Office, Green Paper, p.23.

30. In interviews with the following persons, all supported the introduction of some type of licensing regime. Michael Grunberg, Official Spokesperson, Sandline International, London, 24 June 2002; Nic van den Berg, Operations Manager, Sandline International, Birmingham, 24 June 2002; Nigel Woof, Vice President Marketing, ArmorGroup, London, 30 November 2001. The human rights organization, International Alert, also supports the introduction of a licensing regime, see Beyani and Lilly, Regulating Private Military Companies.

31. Foreign and Commonwealth Office, Green Paper, p.24.

32. The Office of Defense Trade Controls (DTC), Bureau of Political-Military Affairs, in accordance with 38–40 of the Arms Export Control Act (AECA) (22 USC 27780) and the International Arms Regulations (ITAR) (22CFR Parts 120–130), is charged with controlling the export and temporary import of defence articles and services covered by the United States Munitions List.

33. Foreign Affairs Committee, ‘Second Report’, p.33.

34. Christopher Beese, personal communication, 6 Jan. 2004.

35. United Kingdom Strategic Export Controls Annual Report 2003.

36. Foreign Affairs Committee, ‘Second Report’, p.33.

37. Christopher Beese, personal communication, 6 Jan. 2004.

38. Ibid.

39. Interview with Michael Grunberg, London, 24 June 2002.

40. Foreign Affairs Committee, ‘Second Report’, Ev.68.

41. Foreign and Commonwealth Office, Green Paper, p.25.

42. Christopher Beese, personal communication, 15 Dec. 2003.

43. Catán and Fidler, ‘The Military Can't Provide Security’.

44. For a detailed discussion on the role of private sector organizations in promoting human rights see <http://www.business-humanrights.org/Categories/Principles/VoluntaryPrinciplesonSecurityHumanRights>, accessed 1 June 2004.

45. Christopher Beese, personal communication, 15 Dec. 2003.

46. For details of the ‘Foreign Corrupt Practices Act’ see <http://www.usdoj.gov/criminal/fraud/fcpa.html>, accessed 15 Dec. 2003; Christopher Beese, personal communication, 15 Dec. 2003.

47. UN document ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’, United States Department of State, 19 Dec. 2000.

48. Voluntary Principles on Security and Human Rights, Statement by the Governments of the United States America and the United Kingdom, 19 Dec. 2000.

49. Foreign and Commonwealth Office, Green Paper, p.26.

50. Ibid., p.26.

51. Memorandum from Kevin O'Brien to the Foreign Affairs Committee, Private Military Companies, 2002, Appendix 3, Ev.59.