Select Committee on Foreign Affairs Minutes of Evidence

Examination of witness (Questions 160 - 179)



  160. I am on a roll. The other issue which I think we need to address is whether or not we regulate, whether or not we take action, the problem still remains of the potential for embarrassment for the United Kingdom. We do know that one of the companies that Colonel Spicer was associated with embarked upon an expedition to Papua New Guinea. It was embarrassing to the United Kingdom, it certainly aggravated our friends in the region, Australia, New Zealand and other countries. Whatever else we may or may not do, should we not have some way of saying we are not tolerating this, we are not going to have you embarrassing the United Kingdom or working against our interests or that of our allies?
  (Dr MacShane) I agree, again, Chairman, many things embarrass the United Kingdom and I can assure you as a PPS in the Foreign Office the Sandline Sierra Leone affair was something that was not only embarrassing but I would say quite damaging to the Government at the time. The issue is whether we do nothing and this resurfaces every so often or we examine forms of making the behaviour of these companies and what they do more transparent and bring in a licensing regime. We may end up with embarrassment but at least we will have collectively as a Parliament and as a Government accepted some greater responsibility.

  161. Could I ask if you have been able to examine the United States' legislation? Would that be a model for us? Could you amplify on that?
  (Dr MacShane) The American legislation which covers arms exports as well as the activity of private military companies is, I understand, a licensing system that both covers companies and individual contracts, so the Americans have commissioned private military companies, for example, in some logistical and other activity in the Balkans. It seems to have worked out successfully. As always in America there is a great deal of transparency, congressional inquiries, press inquiries. I would rather in Britain that we moved all of this, if we are to go down this road, into the open, transparent sphere. It is not a world in which angels operate but I would rather that they were accountable and known to the public so that if anything that should not be done is done it is brought to public and parliamentary attention as soon as possible.

  162. Can you help me on one thing. What is the status of people who are, as we know them, mercenaries? I am not talking about the Gurkhas, the Swiss Guard or people who sign up to the Sultan of Oman's army and the soldiers in this army who are under the command and control structure. Are they covered by the Geneva Convention or could they be under this newly discovered category "unlawful combatant"?
  (Dr MacShane) Again, a very good question. I am sorry, the Committee will have to forgive me, I do not have the Geneva Convention in my head. Unless you are directly enrolled by and for a state then I think you may not be covered by it.


  163. It would be helpful in response to Mr Mackinlay's question if we could have a note on the relevance of the Geneva Convention to the sort of activity we are now describing[2].
  (Dr MacShane) That is a very important point, Chairman.

Andrew Mackinlay

  164. Do our laws sufficiently have extra-territorial effect with regards to the conduct of people operating from the United Kingdom? I realise there are now international laws, thank goodness, so if there are crimes against humanity there is albeit a very fragile mechanism now with people being brought to court. Is there on our statute book laws which we really ought to be extending to Brits who are operating elsewhere around the world or people whose companies are working from here? That has to be looked at.
  (Dr MacShane) From memory I can think of recent legislation referring particularly to paedophile activity overseas that then can be successfully prosecuted in domestic courts. Generally the presumption is if you commit a crime in a state then it is that state that arrests and puts you on trial. Again, this really is much further down the road, Chairman. If we move into a legislative and licensing regime I think all of these issues, and they are important ones, would have to be considered and Mr Mackinlay's very important point will be taken seriously by officials. That is a lot further down the road way beyond this Green Paper stage.

  165. My very final point, and I do not put it in any provocative way at all, in fact let me preface my remarks by saying I acknowledge that you are very much the architect of this paper and also what you have said this morning indicates on your part some enthusiasm for at least containing the problem, a personal one. I would like on the record an assurance that the emergence of this Green Paper is not one of these things that does happen where the mood was we have to come up with something but we have no intention of bringing forward legislation? I cannot help feeling that is what is going to happen because the common denominator amongst ourselves, and I think your testimony, is the fact that there clearly is a need for some regulation although we will have differences as to what it should be. Can I have an assurance that this Government will not stall on bringing forward legislation making the assumption that nobody is going to opt for what I would call almost the anarchical situation of just letting things drift, bearing in mind there are also international considerations, there is a dormant draft Treaty lying around and we have been informed that world leaders will show the way, etc. Can you give us some assurance that this is just not a fobbing off of the Foreign Affairs Select Committee?
  (Dr MacShane) I could hide behind what I have to state, that it is not for me to commit Her Majesty as to what she will announce in her Queen's Speeches over the next two or three years, but irrespective of that the hon. Member is wrong in that this Green Paper originated from a long process in the Foreign Office before I became a Minister, particularly the Minister responsible for this part of the FCO's work. I have been genuinely interested in the moral, political, legal, international policy, and intellectual conundrums that have been brought up by the Green Paper. I am looking forward to this 24 June conference where you really will have the practitioners because what you will not do is wish away the wholly legitimate and proper companies that are operating in this field providing logistics training, transport, fishery protection advice, security and the rest of it. What we are concerned about is moving to the final sharp end of using combat and military violence. I hope we can collectively, me as a Minister and you as the Foreign Affairs Committee, or through the mechanism of an Adjournment Debate in the House in the autumn or later look at where we are once the consultation period is over. Still, I repeat my inclination would be I would rather these things were in the tent, as it were, where we could see in which direction they were aiming rather than outside the tent when we have not got the faintest idea what they are up to until we are splattered with very unpleasant after-effects.

Mr Olner

  166. Just on this issue. I think Mr Mackinlay has a very good point. Whatever, this is going to be a lengthy process but at this point in time are you encouraging self-regulation of some of these companies to make them even more transparent than they are now?
  (Dr MacShane) Again, that is one of the options discussed in the Green Paper. Effective and transparent self-regulation has to be one of the possibilities that we will have to examine once the consultation period is over.


  167. If only on an interim basis.
  (Dr MacShane) On an interim basis. As always self-regulation is one possibility until such time as it is shown to break down. I will be interested in the debate. Believe me, there are people and organisations with very keen perspectives coming together in Birmingham in two weeks' time and I will be interested to hear the contributions from the NGOs concerned about this and the companies themselves on the best way forward. I keep stressing, difficult as it may be for even myself to believe my own words, I have an open mind.


  168. Minister, in paragraph 57 of the Green Paper you quote the UN Secretary General as saying that in the confusion of the Rwanda situation he even considered employing private military companies in the Goma camp and particularly the overspill from Rwanda into the camps within both Tanzania and the Democratic Republic of the Congo. Is it your view that if the issue were now to be raised again within the United Nations that those same constraints might not apply because opinion within the United Nations has moved on in respect of private military companies?
  (Dr MacShane) I think that would be going a bit further than my impression, though I have not myself, and the Government has not, consulted widely with all 189, soon to be 191, member states of the United Nations. What I would say is that the last ten years has been a very sharp learning curve for all governments, looking particularly in our own corner of the world in Europe, in the Balkans, in Rwanda, about how the failure to understand the need to intervene militarily leads to the most awful deaths and ethnic cleansing and in the case of Rwanda I think certainly the use of the word genocide.

  169. You will recall that in the case of Rwanda there was a Carnegie Study which did a simulation exercise in West Point that had 5,000 trained military people intervened in 1994 at the start of the conflict it might have prevented the genocide which killed up to 800,000 people.
  (Dr MacShane) President Bush the First sent in 1992 1,000 US soldiers to Macedonia as a tripwire and effectively, although we have had some trouble in Macedonia in the last 12 months, kept that corner of the Balkans free of what Bosnia, Croatia and Kosovo went through. Yes, I am very pleased that this Government is extremely robust in understanding that if you want the end of peace then you must will the means and that may require a strong military presence of men who know how to use weapons rather than just carrying them on the ground.

Mr Pope

  170. Can I just return to this issue of accountability through the international legal system. You are going to write to the Committee about whether or not the Geneva Convention applies to PMCs, although I think we can proceed on the basis that it is quite likely that it does not given the case that the people being held at Guanta«namo Bay are not covered by the Geneva Convention. Earlier on you told the Committee that if a breach of human rights took place there would be redress through the law of the country in which the breach took place. It seems to me that this is not very satisfactory. By the very nature of some of these countries the rule of law has broken down completely. We are already proceeding on the basis that the Geneva Convention does not apply, so what redress does the international community have against a breach of human rights by a PMC?
  (Dr MacShane) I think this is a fundamental question. The issue of how we bring about redress for breaches of human rights is increasingly on the international agenda and is one that has to be examined by the Commission for Human Rights in Geneva itself. A company that in any way authorised its employees to undertake activities which clearly were seen to be ultra vires and in particular were seen to constitute a breach of human rights would, I would have thought, be open to legal action in the country where that company was based. In this case, again theoretically, we would be talking about the UK and that is why, as I say, if we can get to some kind of licensing regime it may ensure that the companies operating out of the UK are very seriously constrained and ensure that their men and their employees do not carry out any act that could be considered to be a human rights violation.

  171. Does that not lead us on to the follow-on problem that by their very nature these companies are highly mobile. If I was running a private military company and the UK Government established a tough regulatory framework to hold me and my company to account probably the first thing I would do would be to move that company to another island state. Whilst I think the Green Paper is to be welcomed and it is a really good step forward, would we not be better off putting the emphasis of our policy on reaching an international agreement to prevent that kind of state hopping by companies to avoid a regulatory framework so there is not a hiding place for rogue companies?
  (Dr MacShane) Indeed, in theory, yes, but, as we have seen on a number of issues, trying to get every country to sign up to a particular policy, whether it is support for the International Criminal Court or whatever, is quite difficult. I am nervous of making the best the enemy of the good. If as a result of this consultation process the FAC recommends and other partners recommend, stakeholders recommend, we actively consider a licensing regime then I would rather have the companies operating out of the UK accountable and transparent for what they do. The rogues who go off and establish themselves, and I am not going to name any other country in the world, and operate from there perhaps will not have anything like the legitimacy as they search for business that a proper company that is accountable and licensed, or its activities are licensed case by case, in the UK might have.

  172. I take that point and I accept what you are saying. Clearly if we cannot do everything that is not an argument for doing nothing and if we can establish a framework here that is a good thing and we can be confident then that companies operating from this country will sign up to a Code of Conduct or whatever. I do think this issue of international co-operation is a very important one and I would be interested to know what efforts have we made so far at the United Nations to try and seek a wider agreement with other nations? I accept your example of the ICC is a very good one and getting the United States to sign it is difficult but surely we must have a great many allies at the United Nations who could see that it would be a worthwhile project to regulate in an international way the PMCs.
  (Dr MacShane) We have the United Nations procedures already in hand, the draft Protocol on the Convention regarding mercenaries has been up and running since 1977, but alas it was drafted in my judgment, and you can see that in the language that is contained in the Green Paper, very much as a political declaration and in legal terms where all six of its qualifications for becoming describable as a mercenary have to be met. I find it deeply unrealistic. There is an OAU one which condemns the activity of any kind of mercenary involvement against any national liberation movement. We are now in the territory where one is beginning to realise that calling yourself a freedom fighter does not give you the right to undertake terrorist activity. Perhaps the OAU definition now is slightly out of date because the great issues of Southern Africa have been resolved. There is a European dimension on this, there is certainly a UN dimension on this. As I say, Britain would like to see not so much a correct definition of what is and is not a private military company and what it can and cannot do. The Government would like to see the UN and its member states accepting full responsibility at the sharp end of this and, if nothing else, if this consultation paper increases British public opinion, international public opinion and awareness of the fact that in the modern world security is important and security has at times to be delivered by military forces and the best way of doing that is on an international basis by professional armies accountable to their states and the regional UN organisations that have asked them to undertake this activity,—


  173. I am proposing to raise with you a point which was made to the Committee by Sir John Stanley relating to the flexibility which is allowed to national governments which may be less possible for private security companies. The example cited is that of Uganda at the end of the Obote regime in 1985. The British military forces were training those of the then President Obote, there was then the civil war and the assumption of power by President Museveni who virtually immediately in January/February 1986 asked for the support of the British forces again. Clearly if they were a private military company contracted to an earlier regime it would be very difficult indeed for that company to alter the terms of its contract, as it were. Do you see this as a problem in respect of the employment of private military companies?
  (Dr MacShane) You are taking me on to the terrain of case by case hypothetical issues but—

  174. This is an actual issue.
  (Dr MacShane)—in this case an actual example. My memory needs to be refreshed. As Sir John, of course, was a Minister in this period, were there private military companies operating?

Sir John Stanley

  175. We had an official British Government training team that was training Obote's forces on the basis that they were being trained to be disciplined and responsible. That was the basis on which we had a training team in place at the point when the rebels who were Museveni's people came out of the bush, overthrew the Obote regime and within a very short space of time, it was liberally in a matter of weeks, we received an invitation from the new incoming President Museveni that the official British Government training team made up of regular serving officers and men, having trained the people against whom they had been fighting for several years, should come and train his forces, which was a tremendous tribute to the professionalism and indeed the integrity of the training team.
  (Dr MacShane) The adaptability of British foreign policy with regime changes has never ever failed to surprise me studying over 500 years of state craft. I do recall those events, at least from television, and it seemed pretty clear that Mr Museveni's men commanded the massive and overwhelming support of the population, so he was in every sense representing Uganda at the time and it was quite right, I would have thought, for the British Government to swiftly recognise the new government there and do its best to make sure that its armed forces were behaving properly.


  176. Would you accept that a private military company would find it more difficult to alter the terms of a contract?
  (Dr MacShane) Again, you really are inviting me to speculate and it reinforces—I feel I am repeating myself—my view that I am glad there were British Army officers and men down there carrying that work out. Believe me, I wish collectively the democracies of the world accepted their security and military responsibilities around the world in the way that certainly this Government and country has irrespective of the party who controls the Government.

  177. I would like to raise the point of monitoring the activities of private military companies. Colonel Spicer, for example, has suggested that there should be personnel accompanying the operations of private military companies monitoring their activities, advising on correct behaviour and so on, and certainly in one of his pamphlets or books he talked even of the UK military attachés where they are resident undertaking that role. What thought has been given by the Government in respect of the monitoring of the activities of those companies who may be operating under licence?
  (Dr MacShane) I read that suggestion in the memorandum that Colonel Spicer sent to the Government following the publication of the Green Paper and it is an interesting one. I am not sure that it is a role that defence attachés could or should carry out. Whether or not there could be monitors attached, particularly with regard to ensuring that there were no improper or human rights violations, and this was raised earlier in our discussion, is an interesting thought. Whether they could come from some body other than HMG is also an interesting thought and one, as I say, I hope will be discussed in depth at the 24 June conference.

Andrew Mackinlay

  178. There was this firm which used the word "Gurkhas" but should we not be able to have some regulation so that a force does not have any mirror image or matching of any of our armed forces units either by inference or by style? I cannot put my finger on it but I have seen where people have referred to the "Gurkhas" being there, which for everyone here means a properly disciplined part of our proud Armed Forces with a great track record when, in fact, they might have been ex members of the Gurkha Regiment but they were a private military company, mercenaries, call them what you like. I imagine it will not apply just to Gurkhas but it is one I have seen[3]. I think we ought to look at that. I have even seen the word "LifeGuard" mentioned. It might have a different context.
  (Dr MacShane) I thought that was a deodorant, Chairman.

  179. As I say, it is a relatively small point but I hope that might be taken on board. I suspect that some of this legislation might not necessarily be one Bill. I would have hoped that the Minister would have thought that after this consultation period there may be some aspects for when amending opportunities come to existing legislation and that might be something you could take on board.
  (Dr MacShane) Again, a perfectly fair point, what is in a name. I was surprised to see a company that was using the name "Gurkha" which is very specific, certainly to my way of thinking. Again, in terms of legislation, if we get that far, there may be a case for a broad enabling act and then each individual contract is examined in very specific detail which would cover the point that Mr Mackinlay is making.

2   See Evidence, p Ev 45. Back

3   See Evidence, p Ev 65. Back

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