Select Committee on Foreign Affairs Ninth Report



18. The Green Paper states that "Although successive governments have deplored the activities of mercenaries, no effective legislation exists to prevent either their recruitment or their participation in conflict."[25] The 1870 Foreign Enlistment Act, which makes it an offence for a British subject to enlist in the forces of a foreign power or to recruit for such forces, has been almost impossible to enforce. The Diplock Report of 1976[26] proposed that it be repealed or replaced, but no action was taken. It was this weakness of legislation that led our predecessor Committee to recommend a review of options for new legislation for private military companies.[27] Its ineffectiveness has been well illustrated more recently by revelations about the recruitment in the United Kingdom of men to train and in some cases serve with Taliban forces in Afghanistan.[28] It has been reported that at least 3,000 British-based Islamic extremists have been trained in al-Qaeda and Taliban terrorist camps in Afghanistan.[29]


19. The international legal instruments for controlling the negative aspects of private military activity are discussed in the Green Paper. Article 47 of the 1977 Additional Protocol I of the Geneva Conventions, which is set out in paragraph 5, is the most widely used definition of mercenary activity. This definition is employed in the UN Convention against the Recruitment, Use, Financing and Training of Mercenaries, which is the only international treaty applicable to the activities of mercenaries and private military companies.[30]

20. The NGO International Alert claims that the UN Convention "provides the best starting point for the domestic implementation of international standards prohibiting mercenaries into international legislation."[31] The Green Paper discusses the significant problems inherent in the application of Article 47 to the personnel of private military companies.[32] The British Government has concluded that the definition used in the UN Convention is unworkable for practical purposes, and has not signed it;[33] neither, with the exceptions of Italy and Belgium, have its European partners.

21. The Organization for African Unity has also drawn up a definition of a mercenary; however, the Green Paper argues that this too has severe difficulties in application.[34]

22. Our predecessor Foreign Affairs Committee, in their report on the Sandline affair in Sierra Leone, noted the shortcomings of the UN Convention, and the Government's conclusion that the definition of mercenary used is impossible to employ in British courts.[35] In its Sierra Leone report, the Committee accepted that parts of the Convention definition were "too vaguely drafted" for use in a court of law, but argued that "there is no reason why the definitions used in the UN Treaty need to be adopted verbatim... a tighter definition of mercenary could be adopted in British law so allowing ratification of the Convention."[36] It noted further problems with the Convention, however, some of which related to the recruitment of Gurkhas.[37] The Committee therefore recommended that the Government "reconsider seeking to amend the existing UN Convention against the Recruitment, Use, Financing and Training of Mercenaries but, if this cannot be achieved, that the Government take the lead in initiatives in the European Union, Council of Europe or the United Nations aimed at drawing up a new international legal instrument on the activities of mercenaries."[38]

23. When we asked Denis MacShane about prospects for an international agreement to control PMCs, he replied that "trying to get every country to sign up to a particular policy ... is quite difficult. I am nervous of making the best the enemy of the good."[39]

24. While we appreciate these difficulties, we also note the views expressed by International Alert, that "the entering into force of the [UN] convention would represent an important step in the development of a comprehensive framework applicable to mercenaries and would act as an important deterrent to military companies engaging in mercenary activities."[40] We further note that on 3 April 2002 the French Council of Ministers approved a draft Bill (projet de loi) which would impose severe penalties on anyone convicted of directing or organising mercenary activities.[41] The definition of mercenary used in the draft French legislation is very close to that set out in Article 47. This leads us to question whether, if the French Council of Ministers has approved the Article 47 definition of mercenary for their own legislation, this definition is really as unworkable as the British Government appears to believe.

25. A new international agreement to regulate the activities of PMCs would complement and make more effective legislation at a purely national level. We recommend that the Government, as it considers national regulatory measures, also develop a new draft international convention to regulate PMCs which might replace the existing UN Convention against the Recruitment, Use, Financing and Training of Mercenaries. If necessary, the search for a fully international agreement could be incremental, perhaps beginning with the Council of Europe.[42]


26. The Green Paper outlines other relevant national legislation regimes in Annex B. Of particular significance is the regulatory regime of the United States government. In the United States, arms brokering and the export of military services are covered under the same legislation, the International Traffic in Arms Regulations (ITAR).[43] Under ITAR, registered companies must apply for licences before signing contracts with foreign clients and failure to do so is a punishable offence. Each application is studied by relevant sections in the State Department and by relevant embassies.[44]

27. International Alert describes the US government's relationship with PMCs as "perhaps the most mature" in the world, and the regulatory regime as "probably the most developed and comprehensive ... [It] appears to capture the activities of private firms in the US supplying defence services abroad."[45]

28. We note the long experience of the United States government in working with private military companies. We recommend that, in considering options for regulation, the Government examine carefully the United States government's regime for regulating and monitoring the activities of private military companies.


29. The European Union Code of Conduct for Arms Exports was adopted under the British Presidency in 1998. The considerable progress in developing a co-ordinated EU approach to the export of arms is detailed in the Quadripartite Committee Report on Strategic Export Controls, which noted that the Code was "substantially strengthened" in 2000.[46] The Report also noted progress towards the agreement an international code of conduct for arms exports between the European Union and the United States. However, there is no equivalent code in respect of private military services.

30. We recommend that the Government work with European partners towards including the services provided by PMCs in the existing EU Code of Conduct for Arms Exports.

25   Green Paper para. 61. Back

26   Report of the Committee of Privy Counsellors appointed to inquire into the recruitment of mercenaries (the 'Diplock Report'), HMSO, August 1976. Back

27   See Second Report from the Foreign Affairs Committee, Session 1998-1999, Sierra Leone, HC 116-I, para. 96.  Back

28   Jihadi groups such as al-Muhajiroun have boasted of recruiting large numbers of British Muslims to fight with extremist groups overseas. See Jason Burke, 'al Qaeda Britons feared to be back in UK,' Observer, 2 June 2002. Back

29   See David Leppard, 'Bin Laden had 3,000 British fighters," The Sunday Times, 21 July 2002 Back

30   Available at Back

31   Regulating Private Military Companies: options for the UK Government. Chaloka Beyani and Damian Lilly, International Alert, August 2001 (ISBN1-898702-07-3). Back

32   Green Paper, para. 6; David Shearer also discusses the problems inherent in applying Article 47 in Private Armies and Military Intervention, Adelphi Paper 316, International Institute of Strategic Studies, London, 1998, pp17-19. Back

33   Green Paper para. 6. On 15 June 1998, the then Foreign Office Minister Tony Lloyd stated: "We have no plans to sign and ratify the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. We have doubts about its legal enforcability in the United Kingdom." Official Report, 15 June 1998, c16w.  Back

34   Green Paper paras. 7-8. Back

35   Official Report,1 December 1998, c.670. Back

36   See Second Report from the Foreign Affairs Committee, Session 1998-1999, Sierra Leone, HC 116-I, para. 93. Back

37   We do not accept that the definition of mercenaries in Article 47 of the First Additional Protocol of 1977 to the Geneva Conventions affects the status of the Gurkha Regiment, with particular reference to criterion (c). All of the criteria set out in Article 47 must be fulfilled if an individual is to be defined as a mercenary. Criterion (c) specifies that a mercenary is one who "is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party." Article 47 is reproduced at paragraph 6 of the Green Paper.  Back

38   Ibid, para. 93.  Back

39   Q171. Back

40   Regulating Private Military Companies: options for the UK Government. Chaloka Beyani and Damian Lilly, International Alert, August 2001, p.24 (ISBN1-898702-07-3). Back

41   The Bill would impose "Punishment of seven years imprisonment and a fine of Euro 100,000 for: Directing or organising a group with the objective of recruiting, employing, paying, equipping, or providing military training for a person involved in the activities laid out in Article 436-1" (i.e. for mercenary activities as defined in Article 47).  Back

42   International legal instruments exist for the prosecution of individuals engaged by private military companies. These are discussed in paragraphs 41 to 48 below.  Back

43   These regulations were created under the Arms Export Control Act. Back

44   Regulating Private Military Companies: options for the UK Government. Chaloka Beyani and Damian Lilly, International Alert, August 2001, p.32, (ISBN1-898702-07-3). United States Arms Export Control Act (1968), which regulates arms exports from the US, is available at Back

45   Regulating Private Military Companies. p.33. Back

46   See Third Report from the Foreign Affairs Committee, Session 2000-2001, Strategic Export Controls: Annual Report for 1999 and Parliamentary Prior Scrutiny, HC 212, paras. 8-17.  Back

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