ISSUE AREAS:

BASIC NOTES

OCCASIONAL PAPERS ON INTERNATIONAL SECURITY POLICY

7 SEPTEMBER 2005

Private Military Companies:
Options for Regulating Private Military Services in the United Kingdom

Christopher Kinsey

Key Points

• The UK Government is currently reviewing options for regulating PMCs contained in a Green Paper published in 2002. A decision is expected by the end of the year.
• The Green Paper outlines six options for regulation: a ban on military activities abroad; a ban on recruitment for military activity abroad; a licensing regime for military services; registration and notification; a general licence for PMCs; and self-regulation via a voluntary code of conduct.
• The market for military services is expected to expand; thus any attempt to ban this sector will drive companies overseas or out of business - potentially to be replaced by mercenaries.
• The two options most likely to receive government backing are; a licensing regime to control the sale of military services, and/or the registration and notification of companies and contracts.
• Since the government already licenses the export of military goods, it makes sense to licence the export of military activities in a similar way.
• The government should also consider the introduction of a system to monitor performance, including random audit/inspections. Companies found to transgress the licensing regime would face penalties including possible imprisonment of their owners and executives.

Introduction

The UK Government's Green Paper on options for regulating private military companies (PMCs) was published in February 2002 and was drafted in response to a request made by the Foreign Affairs Committee of the House of Commons in its 1999 report on the 'arms to Africa' affair, which involved the delivery of weapons to Sierra Leone by Sandline International in contravention of a United Kingdom arms embargo. The Foreign and Commonwealth Office (FCO) is currently reviewing the options contained in the Paper and an announcement on what course they intend to take is expected by the end of the year. This Note explores those options and some of the key issues and problems that the FCO is having to wrestle with.

Specifically, the Green Paper outlines six options, which are intended to meet the challenges facing the government to establish a regulatory system for PMCs. The principal criteria for this regulatory system are that it be enforceable and that it satisfies key demands.

These demands include, but are not limited to:

• Ensuring PMCs do not adversely impact on peace, security and conflict resolution;
• Ensuring that their use is both legal and legitimate and does not contravene human rights;
• Ensuring that they are made accountable both for their actions and for those of their employees;
• Guaranteeing that they do not in anyway undermine the sovereignty of states; and
• Making certain that PMCs are as transparent as possible in their operations and business functions.

But some issues are not so clear. For instance, what would be the impact of regulating PMCs on the mineral-extraction and oil industries, both of which have come to rely on the security services offered by PMCs to protect their operations in the more volatile regions of the world, or for that matter, non-governmental organisations, which also draw on these companies' skills? And what would be the effect of regulation on Britain's armed forces? Would regulation, for example, prompt an even greater exodus from regiments such as the Special Air Service? If regulation fails to meet the demands of these groups, or other legitimate actors interested in employing PMCs, the government, along with the industry, could find itself embroiled in further débâcles akin to the 'arms-to-Africa' affair. Though to be fair to Sandline, the 'arms-to-Africa affair was in reality the result of a lack of ministerial experience within the FCO. At the time of the incident, Labour had only just come to power, while the company honestly believed it had the full backing of the FCO for its operation.

Six alternatives

The Green Paper outlines six options for regulation on a national basis:

• A ban on military activities abroad;
• A ban on recruitment for military activity abroad;
• A licensing regime for military services;
• Registration and notification;
• A general licence for PMCs;
• Self Regulation: the introduction of a voluntary code of conduct.

Given the growth of the security industry over the past decade, especially since 11 September 2001, there is every reason to believe the market for military services will expand. Any attempt to ban this sector will simply drive companies overseas, where they will be able to avoid regulation, or go out of business. In the latter case, their role as security provider is likely to be replaced by undesirables such as mercenaries. Moreover, a ban on military activities or recruitment for military activities abroad would also require the repeal of the Foreign Enlistments Act of 1870. Such an option has been rejected by successive governments because of the difficulties involved in repealing the Act.

At the same time, it is unlikely the government would support a general licensing regime, which could see it lend support to PMC activity that they had little or no control over. Neither are they likely to consider self-regulation, since it would not include a legal mechanism for punishing companies, or demanding through sanctions the rigorous standards of behaviour that would be called for under a licensing regime. This leaves the government with two options; the instigation of a licensing regime to control the sale of military services, and/or the registration and notification of companies and contracts. In the first instance, companies would have to apply for a licence if they wanted to sell military services abroad. Parliament would decide on what constitutes military services, but any definition would surely include such activities as involvement in offensive combat operations, direct support for offensive combat operations, armed security of convoys and of government/commercial sites (including recruitment/management of personnel), anti-piracy assistance, and military/police training. However, categorising military services will not be easy. To help in this task PMCs could be required to register as a broker in military services, as US companies have to do if they want to sell weapons. In the second instance, before PMCs could sell such services abroad, they would be required to register with the FCO, but only after meeting certain criteria, including the vetting of its operations staff.

Considering the government already licenses the export of military goods, it makes sense to licence the export of military activities in a similar way. Even so, the establishment of a licensing regime necessitates prudent deliberation. Whatever criteria is used to determine whether an application should be accepted or rejected will need to balance the economic interests of the companies with the wider interests of the general public. To assist the process by simplifying it certain activities could automatically carry a strong presumption of denial (ban) such as involvement in offensive combat operations, while other contracts with pre-approved clients, such as NATO, EU, and the UN could be exempt from licensing as long as companies had already been vetted. It would also be better for the companies to incorporate the automatic granting of licenses into a licensing regime. This could be part of a fast-track system where less-contentious services, such as delivering logistical support to inter-governmental organisations and the British government would be exempt from the normal licensing process. Such a regime would save time, free administrative capacity, and thus enable a more thorough evaluation of controversial project proposals.

The government should also consider the introduction of a system to monitor performance. Part of the system should include a random audit/inspection, while companies that have been found to transgress the rules under which their licences were granted would be subject to penalties including the possible imprisonment of their owners and executives. At the same time, the government should consider setting up teams of field observes to monitor the activities of PMCs operating in and around war zones.

Conclusion

It is generally agreed that private security providers can make a positive contribution to international peace and security. Even the UN once thought seriously about utilising such arrangement:

As it happened, the UN did once consider hiring mercenaries. It was in the wake of the Rwandan genocide, when the killers were hiding among refugees in eastern Zaire. Kofi Annan, who was then in charge of the peacekeeping, wanted to disarm the fighters so the humanitarian assistance could flow to the civilians. He appealed to governments for help; they spurned him. So he considered the mercenary option, only to drop it because the UN's member states were horrified by the idea.[1]

But given the potential implications of losing control over the operational procedures of PMCs, and the fact the government must ensure that the country's wider interests are protected, it is essential they retain full control over PMC deployment of military force. It will only achieve this through a sensible, well thought out licensing regime. A regime that is too restrictive will fail, as will one that constitutes nothing more than a light regulatory framework. It is possible to achieve a balance, but to do so requires an understanding of the industry, the different environments PMCs operate in, and the requirements of the government.[2] In going down the regulation path, the government has created an opportunity for itself to redefine the boundary between public and private security, which could have immense benefits for both sides. One hopes it has the political will to continue.

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Dr Christopher Kinsey is an ESRC post-doctoral fellow at the Department of International Politics, University of Wales, Aberystwyth, where he also received his doctoral degree, which examined the impact of private security in international politics. His present research looks at the role of private security and the reconstruction of Iraq.

Endnotes

[1] S. Mallaby, 'Mercenaries Are No Altruists, But They Can Do Good', Washington Post, 4 June 2001

[2] For a detailed account of some of the issues raised by PMCs see D. Isenberg, 'A Fistful of Contractors: The Case of a Pragmatic Assessment of Private Military Companies in Iraq', British American Security Information Council, Research Report 2004:4, September 2004.