Regulating
private military companies
91. There is a very plausible argument that
private military companies are nothing more than mercenaries and
arms-mongers, and that the last thing which a country like Sierra
Leone—or any other trouble-spot—needs is the involvement
of people like them. However, it is very possible that military
operations in sensitive areas like Africa will be increasingly
"privatised" as governments become wary about being
directly involved. At present, there is no legislative prohibition
or regulation which deals with private military companies, and
they are therefore, as Legg puts it[316]
"entitled to carry on their business within the law and,
for that purpose, to have access and support which Departments
are there to provide to British citizens and companies."
We raised with our government witnesses the possibility of greater
legislative control. In early June, Sir John Kerr told us that
his Department was "reflecting seriously" upon legislation
to deal with private military companies, while Ms Grant thought
that there was "a case for more regulation, particularly
for more transparency about how these companies operate and are
set up."[317]
In November, Sir John explained that Whitehall-wide consultation
was taking place.[318]
This was confirmed by Mr Lloyd in the House.[319]
Perhaps anticipating the way the wind is blowing, Mr Spicer was
reported in November as backing regulation of private military
companies by the Government or the United Nations in order to
remove "the shadow hanging over the business"[320]—a
matter at which he hinted in evidence to us.[321]
92. One element of this consultation is a review
of the Foreign Enlistment Act 1870. This antiquated piece of legislation
was passed on the outbreak of the Franco-Prussian war and makes
it an offence to engage in military or naval service of "a
foreign state at war with any foreign state at peace with Her
Majesty." It is also an offence to "prepare or fit out
any naval or military expedition to proceed against the dominions
of any friendly state." Embarking on a ship with any of these
purposes in mind is an offence—aeroplanes were not around
in 1870. Sir John told us that there had never been a successful
prosecution under the Act in connection with illegal enlistment
or recruitment, and that the standard of proof it required was
probably unattainable.[322]
While he did not rule out the possibility that the Act would be
amended, or new legislation introduced, to deal with enlistment
in foreign military forces, he seemed more positive about the
possibility of establishing a regulatory structure in co-operation
with other countries which would curb mercenary activities based
here or in those other countries. We accept that there is a "number
of difficult questions....which would need careful work,"[323]
but we hope that this will not be an excuse for inaction.
93. There is already a UN Convention against the
Recruitment, Use, Financing and Training of Mercenaries of 1989,
but the Government regards the definition of mercenary used in
the Convention as impossible to use in British courts.[324]
We accept that parts of the Convention definition (for example,
a "mercenary" is one "motivated to take part in
the hostilities essentially by the desire for private gain")
are too vaguely drafted for a court where a conviction must be
based on evidence beyond reasonable doubt. This gives strength
to our earlier recommendation that the Government needs to do
what it can to ensure that drafting of UN documents is improved.[325]
Nevertheless, there is no reason why the definitions used in the
UN Treaty need to be adopted verbatim. The Treaty has no
effect in British law without primary legislation, but the primary
legislation does not need to follow the precise words of the Convention.
For example, a tighter definition of mercenary could be adopted
in British law so allowing ratification of the Convention. However,
we accept that there are other problems with the Convention; for
example, in its possible application to Gurkhas and in the language
used in some of its articles. We also note that only 16 states
are party to the Convention, and that the EU states (except Italy),
the USA, Canada, Australia, New Zealand and Norway are all non-parties.
We note that the Government will be discussing with the UN Special
Rapporteur on Mercenaries the possibility of amending the Convention.
We also accept that amendment will not be easy. Nevertheless,
there is no doubt that international effort and common international
controls will be more effective than those undertaken unilaterally.
We recommend 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.
94. We had an opportunity to meet informally with
Mr Ballesteros, the UN Special Rapporteur on Mercenaries, on 27
January 1998. He agreed that the UN Convention had deficiencies,
but believed that the United Kingdom should sign it and then work
to amend it. In his view, the United Kingdom could also draw on
the Convention to draft primary domestic legislation appropriate
to this country in relation to mercenaries. Such legislation would
address the specific concerns discussed above He described the
activities of private military companies as a form of "neo-colonialism"
which both constituted serious interference with the role of the
UN and adversely affected relations between Western countries
and less developed ones where mercenary activities usually took
place. Thus the current legislative vacuum in relation to private
military companies, particularly the lack of sanctions, meant
that the international community was very close to allowing them
to act with impunity. In his judgment, international peace and
security should never be allowed to be subject to private interests
in this way.
95. The illegal part of Sandline's operation in Sierra
Leone was not, of course, any supply of personnel but the supply
of arms. The previous Government agreed that a "considered
assessment of the advantages and disadvantages of primary legislation
to prohibit arms trafficking" should be conducted.[326]
The present Government have accepted that it would be right in
principle to control the involvement of persons in the UK or UK
persons abroad in trafficking or brokering of arms to countries
subject to embargo.[327]
We regret that primary legislation necessary to bring this into
effect was not foreshadowed in this session's Queen's Speech.
United Kingdom primary legislation would, of course, only be effective
against persons operating from or domiciled in the United Kingdom,
and the advantage of common effort by countries in co-operation
is obvious. The European Union adopted in June 1998 a code of
conduct aimed at the further standardisation of criteria governing
the licensing of exports of arms from Member States.[328]
We would welcome the extension of this Code to cover arms trafficking
and brokering. We recommend that the Government take the lead
in initiatives in Europe and/or the United Nations aimed at drawing
up an international legal instrument on trafficking or brokering
in arms subject to embargo.
96. In the meanwhile, there is nothing which prevents
unilateral action by the United Kingdom. The economic benefit
which private military companies and arms traffickers bring is
so marginal that we have no need to await the actions of others.
We recommend (a) in the case of mercenary activities, the publication,
within 18 months, of a Green Paper outlining legislative options
for the control of private military companies which operate out
of the United Kingdom, its dependencies and the British Islands,
and (b) in the case of arms trafficking and brokering, that the
legislation to control these activities be introduced no later
than in the next parliamentary session.
307 
