Select Committee on Foreign Affairs Minutes of Evidence


Memorandum from Dr Kevin A. O'Brien

  NOTE: The views expressed in this paper represent personal views only and do not necessarily reflect the views or positions of RAND Europe, its parent RAND Corporation, or any of its clients.

  This paper will examine options for regulating the activities and existence of private military companies (PMCs), and provide a recommendation on these options.


  This report recommends a three-fold system of licensing, integrating Options 3 (A licensing regime for military services), 4 (Registration and notification) and 5 (A General Licence for PMCs/PSCs) from the FCO Green Paper Private Military Companies: Options for Regulation.

    —  Step 1—Licensing the Company: the government would license individual companies for a range of activities possible (see Step 2) in a specified list of countries

    —  Step 2—Licensing the Service Capabilities: companies would be required to obtain a licence to undertake contracts for military and security services abroad. The activities for which licences were issued would be defined in the licence.

    —  Step 3—Licensing the Individual Contract (notification): companies would be required to notify the Industry Authority of each contract requested prior to tendering/bidding, in order to obtain a licence for each individual contract.

  This report recommends a prohibition of activities involving operations by individuals, combat services in zones of conflict (with exceptions—the greatest being to support UK national objectives through international peacekeeping), and arms brokering.

  This report recommends an industry regulatory authority be established within the FCO.

  This reports recommends most strongly that the UK government encourage—through all means available—the same approach at the international and EU levels, generally through the rewriting of the existing UN General Assembly International Convention against the Recruitment, Use, Financing and Training of Mercenaries.

  This report recommends that the UK government integrate its approach to regulating the activities of Private Military and Private Security Companies abroad/externally with its approach to regulating the activities of Private Security Companies domestically—to whatever degree required based on explicit cross-overs—due to both the fact that numerous UK companies will fall under both regulatory regimes, as well as the fact that the activities are the same.


  1.  Since the Pretoria-based PMC Executive Outcomes (EO) first emerged publicly in late-1992, international attention has been focused on the role and influence of these companies in securing and stabilising—or, alternately, destabilising—national and regional security throughout the world. The world's attention since 1993 has been focused closely on the role of EO[5] and companies like it in regional conflicts globally for a number of reasons:

    (a)  the origins of EO and a number of companies that engage in similar operations to it has sparked concern over the role of these firms in regional security. Often perceived to be operating outside of the laws of warfare (an incorrect but oft-cited assumption) and strictly for pay, as mercenaries have done for centuries, the apartheid background (or, indeed, Soviet Bloc in increasing numbers of cases) of these professional warriors has brought into question their motives for becoming involved in these conflicts.

    (b)  the failure of the international community to successfully intervene in conflicts, growing more numerous by the year, in the face of an international outcry to "do something" to halt the suffering perceived each time on television, has itself led to a blasé attitude about many of these conflicts and a paradoxical unwillingness by the international community to pledge the resources (military, humanitarian, or financial) to solving these crises; hence, when these PMCs become involved, they are criticised for being a "band-aid solution" to the crisis of the day without a long-term stabilisation and peace plan being implemented—a failure of the international community and not the PMCs themselves.

    (c)  the fact that (as was clearly demonstrated in Britain's so-called "Sandline Affair" in the spring of 1998) many of these firms operate with at least the acquiescence of major Western governments and their security services brings into question just what policy exists in Western government circles vis-a"-vis these companies. Finally, the perception that many of these companies are operating on behalf of Western mining and oil firms (in many parts of the Developing World) with little interest in the national well-being and standard-of-living in the countries in which they operate (while extremely valid, a not always correct assumption) has further tarnished the image of these firms, painting them as neo-colonial exploiters of Africa.

  2.  When taken altogether, these perceptions paint an extremely negative image of the PMCs and their activities internationally over the course of this decade. Is this the reality, however? Why did the PMCs emerge so strongly when they did and who has supported their operations? Has there been any difference between the more "traditional" mercenary-type operations of yesteryear which still raise their head every few years and the commercial military ventures in which these PMCs have engaged in this decade?

  3.  The perceptions internationally of PMCs as set-out above may not ring true when examining the rise and rise of the PMCs over the 1990s. Indeed, it may be seen that, in many cases but not all, these PMCs were much more effective in resolving conflicts in many African countries than the international community; that they take a much more direct interest in the well-being of the populations in the countries in which they are bringing a halt to these conflicts than the international community; and that—in the largest number of cases—it has not been the fault of the PMCs that long-lasting stability and peace did not come to the countries in which they have operated, but that of either the international community which failed to step in (as, for example, was promised for Sierra Leone in 1997) to secure that peace or of the participants to the conflict themselves (as, for example, has been the case in Angola) who were unable to agree to a post-conflict peace-settlement following the withdrawal of the PMC peace-brokers.


  4.  From the start, this author must emphasise the distinction between "mercenaries" and "private security/military companies" (as will be outlined below under "Definitions"): the options outlined in this paper are solely for the purposes of regulating the activities of fully constituted companies, and not individuals involving in selling their military services and skills on an ad hoc basis. Therefore, from this basis, this paper starts from the point that PMCs do not constitute "mercenaries" under any of the existing legal (national or international) or otherwise established definitions today. They do, however, require an extreme degree of oversight and transparency much greater than, for example, any multi-national corporation due to the nature of their service-offerings.

  5.  While Africa has so far been the focus of the popular interest in these firms (largely due to the fact that the overwhelming majority of PMC operations have been in Africa), outside of Africa a similar trend has emerged. In the former Soviet Union, the demobilisation of hundreds-of-thousands of soldiers from the Armed Forces of the Soviet Union has led to tens-of-thousands of them joining increasingly active private security firms, involved quite often in very questionable dealings with the various elements of organised crime in the fSU. Private Security Companies have proliferated in Russia in particular since 1990, with an estimated 12,000 now registered. This movement into the "private sector" has also been the case throughout Central Asia and the Pacific Rim, where demobilised combatants from the various guerrilla and low-intensity conflicts have sold their services to a variety of organised crime units involved in arms trafficking, prostitution, child slavery and the drugs trade. Finally, in Latin America, the various drug cartels and families have, since the early-1980s, organised private armies composed of former soldiers, intelligence personnel and mercenaries from throughout the Americas, in order to not only defend their interests against each other and the various governments, but as well to take a pro-active role against these same "opponents" in order to maximise their portion of the narcotics trade. These latter cases are clearly examples of the extremely negative image of the mercenary.

  6.  Given that war-fighting and security have traditionally been the domain of the state, the transference of these capabilities to private corporations has launched a debate surrounding not only the usefulness and involvement of these firms in security activities around the world, but as well on determining what steps should and can be taken to regulate such bodies, making them accountable to either national governments or a world body such as the UN. The emergent awareness of these private groups has created a new policy concern for world governments. Under the existing international system, national military forces are controlled through the civilian political leaders in their respective countries (within the democracies), who in turn regulate and control the activities of these forces in order to (ideally) make their usage always fall within national or international legal statutes and controls. The privatisation of these activities cannot be controlled in the same manner, given that enterprises which enter into commercial agreements with other governments have not, traditionally, fallen under the rubric of military oversight or arms control.

  7.  But is this "privatisation of violence" a threat to regional (and international) security and stability? The nature of the organisations which are increasingly taking on the role of either (sometimes both) exploiter or peace-maker may lead one to believe this. These organisations are more business-like, motivated, funded, and governed (largely through a network of corporate fronts) than any other such entities have been since before the rise in dominance of the nation-state.

  8.  In discussing this "privatisation of war" (alternately known as the "privatisation of violence"), the environment in which they operate is key to appreciating their evolution. Within the relationship between sovereignty and security, the disintegration of Westphalian notions of state sovereignty—including their allied Weberian notions of the "monopoly of violence" to the state—and the effects that this has on security and war cannot be underestimated when looking at post-conflict resolution and reconstruction. Much of this "monopoly" no longer resides with the state in the Developing World but with agents which it has brought in. Coupled with the current general trend towards globalisation and privatisation, and the failures of the international community to respond to each and every massive humanitarian crisis effectively, it is little wonder that we are witnessing a substantial growth in private security today.

  9.  Thus, the question remains as to whether such corporations should be allowed to engage in the provision of security and other military-related capabilities without being placed under the national and international laws of warfare, or whether "private enterprise"—as many pundits and critics see this—should be allowed to flourish in the same way that other industries are governed. The answer to this question is of increasing importance: while this privatisation of warfare emerges as a force in regional security, it is demonstrating the capability and willingness to take over the role of peacekeeper or peace-maker in a variety of regional conflicts from the international bodies (UN, NATO, OAU, OAS, ASEAN) that have traditionally undertaken such missions. Given that such operations have generally been governed by international consensus as derived through a UN mandate, allowing private commercial organisations to undertake such activities may place them outside of such international consensus and therefore outside of such restrictions or controls that may exist through international law—or is that the case at all?

  10.  This is not to say that the role of private organisations in the world's trouble-spots is anything new: increasingly, private humanitarian and relief organisations (such as Médecins Sans Frontie"res, the International Red Cross, CARE, and other groups) have been replacing the role of the UNHCR or UNICEF in providing needed relief support in these trouble-spots. Should the provision of security be any different in this regard? This question can only be answered by understanding the groups that are engaged in such activities, as it is evident that the type of operations that these different corporations are each undertaking present very different circumstances in each case.

  11.  Finally, this author's own thoughts have evolved over the course of this debate during the last decade. Ultimately, pragmatism has won the day: previously, this author would have recommended strongly against the possibility that such private security and military companies be allowed to become the supplemental wings of national armed forces—the negative example of the use of MPRI by the US State and Defense Departments as "surrogate training forces" in Croatia and Bosnia being a starting point for this caution. Indeed, Ken Silverstein warned against this when he stated that "the use of private military contractors allows the United States to pursue its geopolitical interests without deploying its own army, this being especially useful in cases where training is provided to regimes with ghastly human rights records."[6] However, with over a decade's view on these issues—and particularly the responses, or lack thereof, of both the international community and national military forces to humanitarian catastrophes and other so-called "complex emergencies" in the Developing World, alongside a burgeoning view that Western military forces are resource-strapped as it is—this author has become more willing to look at options for such private actors to operate in support of UK national interests and objectives.

  12.  Ultimately, though, the danger must be avoided whereby national state interests become the driving force for the deployment of such private military forces and, thus, a tool of state policy—the danger exists that, in such a situation, the impetus for helping secure stability and peace for a people surrounded by war could become lost, and the state's interests become interventionist in another country, something prohibited under international law as an act of aggression and only condoned under the strictest of UN mandates.[7]


  13.  (Paras 3-8): One of the greatest challenges for both policy and law enforcement lays in defining the activities and actors in this area. The definition of "mercenary" contained in Article 47 of the First Additional Protocol of 1977 to the Geneva Conventions is generally unworkable as a legal instrument, as

    (a)  it defines the actor and not the activity

    (b)  to be construed as a "mercenary", all six elements of the definition must apply to an individual

  14.  These definitions are either unworkable for legal purposes or (especially in the case of the OAU Convention for the Elimination of Mercenarism in Africa, which was designed to stop neighbouring African rivals from hiring mercenaries against each other) irrelevant directly to the issue at hand. Unfortunately, in many cases, it has been the signatories of both Conventions which have hired mercenary forces for their own interests—thus laying bare the hypocrisy inherent in much of the debate. For this reason, these Conventions are quite rightly not supported by many countries—including the UK (see below "The International Context & Legal Framework").

  15.  While the categories outlined in Para 9 are useful, the interpretations of this paper presuppose the following definitions.

    (a)  Mercenaries: mercenaries are the traditional soldier, having only been replaced as an accepted combatant at the time of the French Revolution when national ideals were tied inextricably to military service. In modern times, the term "mercenaries" has become a pejorative one, conjuring up an image of a hardened white soldier brutally intervening in a small, hitherto unknown African country for financial gain, or an "international brigader" fighting through the streets of Srebrenica. Mercenaries, in this more traditional sense, continue to be active world-wide increasingly in the 1990s. The "White Legion" during the 1996-97 Zairian conflict is typical of the way mercenaries have been employed since the end of the Second World War. This unit of approximately 300 personnel was reportedly trained by former French Presidential Guard (GSPR) officer Colonel Alain Le Carro, former Gendarme Robert Montoya, and the Serbian commando, Lieutenant Milorad Palemis. The unit, composed of mercenaries from Serbia, Morocco, Angola, Mozambique, South Africa, Belgium, France and Britain, was fighting for President Mobuto Sese Seko; following the defeat of Mobutu, they were reported to have moved south to Congo-Brazzaville, where they fought for the besieged Lissouba government in Brazzaville.[8] Other examples of modern mercenaries include dispossessed former combatants flooding out of conflicts in the fSU and Balkans; Ukrainians in Angola and Sierra Leone for both sides; specialist pilots in Zaire, Congo-Brazzaville, Angola, Sierra Leone, Liberia, Guinea-Bissau; Israeli, British and American former special forces personnel in Mexico, Colombia and the Iron Triangle training security forces of drug cartels; and former Spetznazsi and KGB personnel involved with Russian mafiya.

    (b)  Mercenaries continue to exist across Africa—however, more often than not, the role and presence of African mercenaries is overlooked by both national and international governments, as well as the media and international NGOs involved in these conflicts; it is the presence of African mercenaries (either individually, through tribal affiliations, or through the forcing of intervention by external national government actors with private interests and concerns in foreign conflicts throughout the continent) that far outnumbers the presence of any Western (ie "white") foreign actors involved in Africa's conflicts—and, therefore, raises far more of a concern in many senses.

    (c)  While such activities have continued unabated, however, there has been a gradual change from the type of mercenary activity witnessed in the period following decolonisation in Africa during the 1960s (for example, the interventions in the Belgian Congo by "Black-Jacques" Schramme or "Mad Mike" Hoare) to a more controlled involvement in such conflicts, with greater consideration placed on the background to the conflict and the local politics that contribute to it. While today's mercenary may be more "reflective" than those of the past, it is also clear that the reasoning which pulls such people in is no longer a motivation based solely on monetary compensation, but also by a self-awareness that this is the only life-style which such an individual could have. This final point is a key problem in dealing with this new warrior movement. The failure of re-education or training programmes to provide hope to former combatants has, no doubt, played a major role in making them continue life as warriors. Whether as guerrillas or members of statutory forces, for these men, who have spent the last two to three decades in combat, the realisation that they do not fit into civil society has been a prime motivator in this tendency towards mercenary activity.

    (d)  Private Armies/Militias and Warlords are also dominant in many African conflicts. These groupings of private forces represent the next rung from mercenaries. Although such forces can include mercenaries in organised numbers (such as Five Commando in the Belgian Congo during its wars of the 1960s), these groupings do not always have a national outlook to their conflict; indeed, these groups can often be transnational, supported by whatever country they can obtain funds and hardware from at any given time, and fight simply for control of a region or resource. Such diverse entities as transnational terrorist organisations, religiously motivated combatant groups (such as those supported by the Islamic Brotherhood), and leaders such as John Garang in Sudan all fall into this category. They do, however, fight with more organisation than mercenaries and their efforts are more directed over longer periods of time.

    (e)  Private (Commercial) Security Companies: PSCs first began to emerge on the world stage as long ago as the 16th Century, when Italian mercantilism meant rival commerce families hired security elements against each other to control their businesses. This evolved, during the next few centuries, into the security elements of the great colonial exploration companies such as the Dutch Jan Compagnie and the British South Africa Company; even the British East India Company and the Dutch East Indies Company retained security elements partly seconded from their own national forces. The PSCs evolved throughout the 1950s and 1960s, mostly in Africa, but as well in Asia and Latin America. The most infamous of these were the operations by Sir Percy Stilltoe, a high-ranking British counter-espionage expert from the Second World War, who was hired in the 1950s by Harry Oppenheimer of DeBeers. Oppenheimer contracted Sir Percy to establish intelligence networks in Sierra Leone and use mercenaries to eliminate diamond smuggling, forcing all to sell to DeBeers.[9] Where, 10 years ago, such a category was composed of individuals tasked with personal and installation protection primarily, private security companies have grown to such a degree that many of them now include capabilities in transport, intelligence, combat-firepower, and para-medical skills. While most often they are accused of being "mercenary forces" engaged in "criminal activities and violations of human rights" (as was stated in the UNHCR reports on the "Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to self-determination"),[10] there is a clear distinction emerging between the more traditional mercenary forces and those engaged in high-profile, high-risk private security operations. Examples of these include Group 4, Control Risk Group, LifeGuard Management, Corps of Commissionaires, and KMS.

    (f)  PSCs can also include Private Intelligence/Information Brokers, which include Competitive Intelligence/Risk Analysis and Information Brokers (such as Control Risks Group, Oxford Analytica, Economist Intelligence Unit), and "Hard-core" private intelligence firms (such as in Romania, where there are currently more than 160 private intelligence agencies all run by former DSS or MoD intelligence personnel; or in Russia where (by April 1994) there were 6,605 "private security enterprises or security services companies", 26,000 private investigation licences). However, private intelligence agencies operate on a different plane than PSCs/PMCs: while there may be cross-overs (ie Control Risks Group also provides PSC services), generally speaking these firms do not engage in physical security or military activities.

    (g)  Private Military Companies: PMCs are the ultimate evolution of all of the above.[11] The clear differences in their operations from each of these is that they are organised along corporate lines (including boards of directors, share-holdings, and corporate structures), their work has a clear contractual aim and obligation to their clients, and they engage in military operations—across the spectrum where necessary—something most PSCs will not undertake, especially in Africa, Latin America and the former Soviet Union. While the most well-known of these are Executive Outcomes (South Africa), Defence Systems Limited (UK), MPRI (US), and Sandline International (UK), other companies include KMS and its subsidiary Saladin Security, The Corps of Commissionaires (which has operated since the end of the 19th Century), BDM/Vinnell Corp (US), AirScan (US), Levdan (Israel), and Gurkha Security Guards Limited (UK). DSL, for example, was hired throughout the 1980s and into the 1990s by international organisations such as the World Bank, the UN and various humanitarian NGOs to protect their personnel and assets in regions of conflict. DSL's operations in Africa throughout the 1980s included Mozambique, Sudan, and Kenya, to name a few.[12]

  16.  There are differences in the composition of the PMC sector. While the strongest companies exist along permanent, corporate lines (such as EO, Sandline, DSL, and MPRI), there are many operating internationally that, while calling themselves "companies", are little more than glorified mercenary operations, existing often for short periods of time only (such as South Africa's Stabilco, France's Secrets, and the UK's Security Advisory Services Ltd). There are also differences in the services that these firms provide. These can be divided between those PMCs that provide military services up to and including combat operations (the "active"), and those who provide training and support only (the "passive"). Thus far, Executive Outcomes and Sandline International are the principal firms to provide combat capabilities, many of the other firms could easily develop this capability (especially MPRI and DSL).

  17.  The point of making these distinctions is that the line between mercenaries, PSCs and PMCs are often blurred all three ways: individuals who previously engaged in what could be defined as "mercenary" activity (ie selling his skills on the open military market without a corporate affiliation, etc) could then become employed by either a PMC or PSC. On the other hand (as is rightly pointed out in Para 14), oft-times PSCs involved in defensive physical guarding could cross the line into offensive military operations. For this reason, defining the activity—based around the entity (rather than the other way around)—is crucial to approaching the issue of regulation.


  18.  The Green Paper Private Military Companies: Options for Regulation lays out—in an extremely lucid, comprehensive, pragmatic and authoritative manner—the background to the operations of PMCs, the arguments for and against their usage (in all respects), the "debate thus far" amongst the stakeholder community concerned with PMCs (the research community, the government, the private sector, the PMCs/PSCs themselves, the advocacy and humanitarian aid NGOs, and the international organisations concerned such as the UN and African Union), and the options for regulation. The authors of the Green Paper should be complemented strongly for their work in this respect—this author finds little within the Green Paper to contest or argue with.

  19.  The Green Paper assesses a number of options for the regulation of PMCs (as well as PSCs and mercenaries) by the UK government. In Paras 62-64, The Case for Regulation is laid out effectively by the Green Paper, with all arguments being agreeable.

  20.  This author believes that, despite the concerns over "costs" and "effectiveness" laid out within the Green Paper, that regulation should and must take place by the UK government; failure to do so—especially after such "political hay" has been made of the issue since 1997—would result in a loss of prestige for the UK government and a potentially serious gap in existing legislation dealing with UK companies.

  21.  This author recognises full well that these companies (at the very least, since the late-1960s with companies such as WatchGuard International and KMS) have long assisted the UK government with operational interests overseas, supporting or even supplanting UK forces and officers in regions of the world where British forces could not officially be brought to bear. While much quieter than the more openly-declared operations of the US government in the same respect, this has been a long-standing practice for both the UK government and PMCs/PSCs. The spotlight that was cast on this issue, however, by the multiple entries of the company Sandline International into both the public and government eye between 1997 and 1999 has meant that this long-standing practice now demands regulation.

  22.  These options—to be complete—must consider:

    (a)  National regulatory options, including:

      (i)  The distinction between the act and the actor when considering regulation

      (ii)  Offences and limitations (ie allowable versus prohibited activities), including specifically:

            1.  support to national military operations in zones of conflict

            2.  combat services in zones of conflict

            3.  so-called "privatised peacekeeping" by PMCs in zones of conflict

    (b)  The regulatory authority

    (c)  The transience of numerous companies between domestic operations in the UK and external operations abroad, and the impact of legislation on these issues.

    (d)  International regulatory options


  23.  In terms of the options presented, Option one (A ban on military activity abroad) and Option two (A ban on recruitment for military activity abroad) I disagree with, as they are not practical nor enforceable.

  24.  Finally, Option six (Self-regulation: a Voluntary Code of Conduct), while somewhat laudable for the companies concerned, should be implicit in the companies' activities—both in terms of carrying themselves with respect to and governance by law (including international corporate law, international humanitarian law/laws of armed conflict, and those laws of the country both from which they originate and in which they are operating); there should be no question of the companies always ascribing to these principles. Otherwise, they do not deserve other considerations (such as recognition and some kind of authorisation for activities). This should go to the heart of the existence of these companies: it will be "bad for business" (in a number of respects) if they are known to be breaching the law in their operations.

  25.  Within Option six, the formation of a "trade association" is a useful tool—but virtually already exists in the UK (the so-called Business Security Risk Group) or the mentioned British Security Industry Association. Further enhancements to this foundation would be recommended. Certification through such an association would be a step in the right direction for regulation—but should be further integrated with new regulatory measures at the state level.

  26.  This author would strongly support a regulatory regime combining Options three (A licensing regime for military services), four (Registration and notification) and five (A General Licence for PMCs/PSCs). Such a regime would include:

    (a)  Step one—Licensing the Company: the government would license individual companies for a range of activities possible (see Step two) in a specified list of countries; to operate in countries other than those listed on the licence, the company would have to obtain prior clearance based on Ministerial decision. In so doing, the agreement could set out standards it expected the companies to meet eg that they should not employ people with criminal records or ex-servicemen without an honourable discharge

    (b)  Step two—Licensing the Service Capabilities: as a sub-set of Step one, companies would be required to obtain a licence to undertake contracts for military and security services abroad. The activities for which licences were issued would be defined in the licence.

    (c)  Step three—Licensing the Individual Contract (notification): as a further sub-set of Step one, companies would be required to notify the Industry Authority of each contract requested prior to tendering/bidding, in order to obtain a licence for each individual contract. As long as the activity required in the contract matched the activities agreed in the company licence, authorisation would be instant and straight-forward; should the contract require activities outside the scope of the company licence, then Ministerial approval would be required.

  27.  Such a licensing regime would ensure total transparency of the company and the contract, from beginning (the company) through the end (the activity). It would ensure that the companies are limited to the activities described, required to seek authorisation (ie further licensing) for activities which fall outside of the initial Company Licence. A sufficient and enforceable punishment and prosecution regime would have to be put in place to ensure that breaches of these licensed parameters were met. Such a regime would also ensure client confidentiality between the contractor and contractee (ie the only information-holder on the contract would be the UK government), and would avoid delays (and therefore not reduce the competitiveness of UK companies) as the licensed activities would be spelled out clearly from the beginning.

  28.  Difficulties will continue to exist, the biggest one being the extraterritoriality of most of these activities (ie the fact that they will be undertaken external to the UK). Since the activity which is licensed takes place abroad, it would be difficult to know (or prove) whether the terms of the licence were breached (though transparency conditions could be included in the licence, eg licensees could be required to facilitate access to places where their activities were taking place).

  29.  While companies not wishing to be subject to a licensing regime could move their operations offshore, this author would agree with the view in the Green Paper that this would mark them as possibly being less than wholly respectable; in addition, the law could be extended to all UK citizens & passport holders thereby ensuring that even those operating offshore would be subject to the law and, therefore, also to its breaches and punishment.

  30.  Such a regime would include in its list of authorised services which PSCs/PMCs could provide abroad as transport, intelligence, force professionalisation training (both regular and irregular), provision of military advice, paramedical services, physical (both personal and installation) guarding, humanitarian aid convoy protection, refugee protection, administration and logistics, and other non-front-line services—including potentially law enforcement and policing in countries in transition (once again, Sierra Leone presents a good example) without the capability to provide this themselves.

    (a)  The PMCs previously active in combat support and combat operations (ie EO and Sandline International) have argued that there cannot be training without participation in front-line combat operations. This author would take a pragmatic approach to this when dealing with a situation of armed conflict (as opposed to a country at peace where UK personnel were engaged in force professionalisation training for the sake of national stability): while UK personnel involved in training should not be prohibited from accompanying their trainees to the front line, they should generally provide support only and not actively engage in combat.

    (b)  This issue particularly opens the whole question of the exact differences or similarities between PMC/PSC personnel from Western countries and those countries' special/specialist forces when it comes to the role of force-training and combat support in Developing World countries. In this sense, PSC/PMC personnel would generally be filling the same role that Western special forces' personnel have traditionally undertaken with Developing World armies. It is for this reason (similar to the problems with the prohibition on combat operations—see below) that as pragmatic an approach as possible must be taken.

  31.  Companies engaged in both arms exports and military & security services would have to have this delineated on their initial Company Licence (with aspects such as training and maintenance included).

  32.  Companies should be allowed—where licensed—to work for both foreign governments under contract and for UK companies operating overseas (especially in terms of protective requirements). Such allowance, while maintaining as much client confidentiality as possible, should be subject to the full scrutiny of the industry regulatory authority.


  33.  Operations by individuals. These will continue to be construed as "mercenary" activity and should, in Britain's national interest, be prohibited.

  34.  Combat services in zones of conflict. Such activities by UK companies in support of foreign governments should be prohibited, as the UK government should continue to support and push for the continued state monopoly over organised violence (ie war). UK companies should be allowed to undertake physical security aspects of private security operations but these should always be defensive/protective in nature, and should not include offensive operations.

    (a)  This raises the very difficult issue of "hot pursuit" or "offensive defence", where attacks by opponent forces on areas/individuals/installations protected by a PSC/PMC lead to the PSC/PMC pursuing the opponent forces away from the site of the attack—or, as happened in a number of cases (ie EO in Sierra Leone and Angola), engaging in pre-emptive offensive measures against opponent forces for defensive purposes. This author recommends that a pragmatic attitude be taken towards this issue: the overwhelming majority of UK PSCs and PMCs are composed of retired professional military officers and other ranks from (largely UK but also) Western forces, with a great deal of professionalism. The companies should be aware that they will have to justify any and all such activities to the UK government after-the-fact, and therefore should be allowed—within the terms of the licence—to exercise best judgement in such a situation. This is not to say that blanket authorisation should be granted for such operations; rather, that these operations should be construed as being wholly reactive to such threats. This will avoid breaches of the suggested ban on combat operations.

    (b)  Such a prohibition should not include contracting by the UK government to support either national stability operations in foreign zones of conflict in support of UK armed forces, or supplementing or supplanting UK armed forces in international peacekeeping operations and related in foreign zones of conflict. This so-called "privatised peacekeeping" by PMCs in zones of conflict should be allowed for UK companies operating under direct contract to the UK Ministry of Defence, the UK Department for International Development, or the UK Foreign and Commonwealth Office. This should be allowed for a number of reasons:

      (i)  The abilities of the limited resources of the current UK armed forces to meet each and every crisis, humanitarian disaster or so-called "complex emergency"—UK PMCs/PSCs could be licensed to undertake these operations in support of UK national interests and objectives.

      (ii)  It is clear that the United Nations, which the UK supports strongly, is moving towards a situation (particularly through DPKO) where PSCs/PMCs will be used in ever-greater capacities from their current existence as protectors and defenders of humanitarian aid operations in zones of conflict. In the not-too-distant future, the UN may be willing to accept (as happened with the OSCE Kosovo Monitoring Mission and US firm DynCorp) the substitution by national governments of private-sector actors for national military forces.

      (iii)  Finally, perhaps the greatest argument for such activities to be allowed is that the UK government has traditionally done this for decades. Companies such as DSL (currently part of Armor Group) have long supplanted, under contract, the role of—for example—British Military Assistance Training Teams to numerous Developing World countries in transition. The continuation of such activities should be encouraged.

    (c)  Such a prohibition should not include support to national military operations in zones of conflict. As such support is either currently in place (in various forms) or being considered for the British Armed Forces, it would be impossible to ban it for UK companies operating abroad. Such support could include any number of aspects (such as transport, intelligence, training, and paramedical skills).

  35.  Arms Brokering: this should be kept separate from licensing PMC/PSC activities and continue to be subject to the existing arms-export controls in the UK. Where cross-overs occur, such should be noted on the PMC/PSC licence, but not authorised under this regulatory regime.


  36.  The question is obviously raised as to what body should govern any licensing and regulatory regime subsequent to these consultations. There are two clear models to follow currently:

    (a)  South Africa: the National Conventional Arms Control Committee (NCACC) of the South African Parliament is responsible for overseeing the Regulation of Foreign Military Assistance Act 1998 in all of its parameters.

    (b)  United States: the US Arms Export Control Act 1968 regulates both arms brokering and the export of military services through the US Department of State Office of Export Controls, which oversees the International Transfer of Arms Regulations (ITAR)—granting licence to those companies who meet the requirements. The Government maintains the right to take action to confirm that licensing provisions are being met. In addition to this licensing procedure, congressional notification is required before the US Government approves exports of defence services worth in excess of $50 million.

  37.  In the UK, the Department of Trade and Industry is currently responsible—in consultation with the Home Office and the Foreign and Commonwealth Office—for overseeing the parameters of the existing strategic arms export controls in the UK.

  38.  It is recommended that the industry regulatory authority be established within the FCO for these purposes. The FCO will have the greatest knowledge of what constitutes the UK's national interests and objectives overseas, and—thus—the most informed judgment of such when it comes to determining licensing.

    (a)  This authority must be exercised in co-ordination with the DTI's oversight of arms exports.

    (b)  This authority must be exercised in co-ordination with the Ministry of Defence for the purposes of determining any cross-overs or potential conflicts between the activities of a UK PSC/PMC operating abroad and British military forces operating abroad (particularly special forces).

    (c)  The body constituted within the FCO with responsibility for this should report to Parliament (via either the Secretary of State or Ministers for the FCO, or via the Foreign Affairs Committee of the UK Parliament) on a regular basis (to be determined, but not less than twice yearly) all of the applications and decisions taken on these—with full transparency.

    (d)  This authority must be exercised in co-ordination, where necessary, with the Security Industry Authority responsible for overseeing the parameters of the Private Security Industry Act 2001 (see below).


  39.  This author recommends that the UK government integrate—to whatever degree required based on explicit cross-overs—its approach to regulating the activities of PSCs/PMCs operating abroad/externally with its approach to regulating the activities of PSCs domestically (currently via the Private Security Industry Act 2001 and the Security Industry Authority). At the moment, the transience of numerous companies (for example, Control Risks Group or Grupo-4) between domestic operations in the UK and external operations abroad means that numerous UK companies will fall under both regulatory regimes, as the activities—in many cases (ie manned guarding)—are the same. This will have an impact on the legislation on these issues.


  40.  As is clearly acknowledged both in the Green Paper and in this report, with an effective and comprehensive international regulatory regime for the activities and actors outlined here, any such regulation will be only partially effective; should a company not wish to be subject to the regulations put in place under this regime in the UK, it can currently (and will still be able to once any regime is put in place subject to this report) simply move offshore or to another country without such regulations (even within the European Union currently) to operate from there.

  41.  Therefore, any national regulatory regime will be incomplete without complementary international regulations—you cannot have effective national regulation without international regulation.

  42.  The existing international legal instruments (the 1989 UN General Assembly International Convention against the Recruitment, Use, Financing and Training of Mercenaries, the 1977 First Additional Protocol to the Geneva Conventions, and the OAU Convention for the Elimination of Mercenarism in Africa) are either insufficient, corrupted or unusable for legal (ie prosecutorial) purposes (as discussed above).

  43.  This reports recommends most strongly that the UK government encourage—through all means available—the same approach at the international level as is outlined in this report, generally through the rewriting of the existing conventions, particularly the UN General Assembly International Convention against the Recruitment, Use, Financing and Training of Mercenaries, as this should be the central pillar of any international regulatory regime for the activities of PSCs/PMCs.

  44.  This approach should also be pushed at the European Union level, as part of attempts to standardise a common approach to law enforcement, legislative, juridical and security considerations across EU Member States.


  45.  The UK is in a unique position currently to influence the international approach to regulating the activities of such private actors; it must do so—partially by leading the way through domestic legislation which will fairly but restrictively approach the regulation of this sector.

  46.  However, with an effective international regime in place, national regulation remains only part of the answer. As long as governments and commercial companies require armed protection or, indeed, armed military support against a rebel insurgency, PMCs will find a willing market for their skills and capabilities. The role that they play in these conflicts will remain of concern: as long as the international community is unable—or unwilling—to provide a regional security solution, this demand for support will continue to be met from the private sector. Given the current regional instability and chaos, this continued "privatisation of peacekeeping" may become the best option for a Developed World unwilling or unable to intervene in the increasing chaos of regional conflict.

Dr Kevin A. O'Brien

June 2002

5   While the focus of attention on PMCs grew initially-and continually-from an interest in tracking the involvement of EO in African countries, it is unlikely that if EO had not come from the background it did (its personnel were almost exclusively former military and police special forces who served in the South African security forces during the apartheid era), such attention and reproach would not have been focused on the PMC sector as a whole. Back

6   Ken Silverstein, "Privatising War: How affairs of state are outsourced to corporations beyond public control", The Nation (28 July-4 August 1997): . Back

7   "Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition" : United Nations General Assembly, Definition of Aggression Resolution 3314 (1974): Article 1. This definition includes the use of "agents of a State" in its understanding. Back

8   French intelligence, according to the New York Times, allegedly used the company Geolink as a cover for the provision of these mercenary forces: "French Covert Actions in Zaire on behalf of Mobutu", AFP 2 May 1997; UNDHA Integrated Regional Information Network, IRIN Emergency Update No. 74 on the Great Lakes (8 January 1997):; Robert Block, "Mobutu calls up the dogs of war", The Sunday Times (5 January 1997): 18; John Swain, "War-hungry Serbs join Mobutu's army", The Sunday Times (9 March 1997): 16; "Fighting intensifies; militia accuses mercenaries of joining", SAPA-AP (30 June 1997). Back

9   Peter Klerks, "South African Executive Outcomes or Diamonds Are A Grunt's Best Friend", Intelligence Newsletter No.55, 10 March 1997; Pratap Chatterjee, "Mercenary Armies and Mineral Wealth", Covert Action Quarterly (Fall 1997). Back

10   Enrique Bernales, The Right of Peoples to Self-Determination and its Application to Peoples under Colonial or Alien Domination or Foreign Occupation: Report on the question of the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, Geneva: UNCHR, 17 January 1996: sA22. Back

11   See, for example, the extensive writings of this author on this topic: Kevin A. O'Brien, "Military Advisory Groups and African Security: Privatised Peacekeeping?", International Peacekeeping 5:3 (Autumn 1998): 78-105; "Private Military Companies in Africa 1990-98" in Kayode Fayemi & Musa al-Fateh (eds), Mercenaries in Africa (Pluto Books, 1999); "Privatising Security, Privatising War? The New Warrior Class and Regional Security" in Paul Rich (ed), Warlords in International Relations (Palgrave Press, 1999); "PMCs, Myths and Mercenaries: The Debate on Private Military Companies", RUSI Journal (February 2000): 59-64; "Freelance Forces: Exploiters of old or new-age peacebrokers?", Jane's Intelligence Review 10:8 (August 1998): 42-46. See also Kim Richard Nossal, "Roland Goes Corporate: Mercenaries and Transnational Security Corporations in the Post-Cold War Era", Civil Wars 1:1 (Spring 1998); J Cilliers and R Cornwell (eds), Peace, Profit and Plunder: The privatisation of security (Pretoria: Institute for Security Studies, 1999); William Reno, "African Weak States and Commercial Alliances", African Affairs, No.96 (1997); Elizabeth Rubin, "An Army of One's Own", Harper's Magazine Vol. 294, No 1761 (February 1997); Ken Silverstein, "Privatising War: How affairs of state are outsourced to corporations beyond public control", The Nation, (28 July-4 August 1997). Back

12   Interview, DSL officer-London, June 1998.  Back

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