RUSI Newsbrief on Green Paper

Regulating Private Military Companies Mariyam Hasham

The Green Paper on Private Military Companies: Options for Regulation was published on 12 February 2002, almost four years after the Arms to Africa affair that prompted calls for it. It has been a long time coming, delayed by semantics, political unease, and lack of direction. Responses to the Green Paper’s suggestion that “a strong and reputable private [military] sector” might have a role in UN peacekeeping have been mixed. They range from outright support for the idea to outrage that private military companies (PMCs) could even be considered in any way legitimate or reputable.

The Green Paper sets out “options for regulation” rather than calling for PMCs to be banned. This reflects both a change in governmental tone and an awareness of the increasing presence of private military providers on the world stage. It seeks to answer a basic question: are PMCs merely unleashed dogs of war operating outside the law, or do they offer a finer gradient of force options available to conventional planners? Around this are other issues: the question of definitions, the dynamics of the evolving debate on private security and the nature of peace operations in the new strategic environment.

Implicit within the Green Paper is recognition of the changing nature of private soldiering that has been occurring over the last decade. It was a South African PMC, Executive Outcomes (EO) that triggered the change in how mercenaries were perceived. EO had an identifiable leadership, corporate structure, operating policies and exercised some discrimination in choosing its clients. The attention paid to EO’s activities in Africa, however, masked other, subtler shifts in the way private military providers were being utilised. They were no longer exclusively hired by chaotic or fragmenting states too weak to hold on to their resources. Many international institutions, such as the World Bank or UNDP, contracted companies like DSL to provide installation security, demining, logistics, convoy security, and police/military training. Other companies have been involved in operations to combat smuggling, poaching and environmental crime. The debate over privatising peacekeeping has shifted; private security provision had been considered anathema, but increasingly, policymakers are considering what benefits the private sector can offer to existing efforts.

The Green Paper is just one of several attempts to tackle regulating private military activity. At the international level, the UN 1989 International Convention against the Recruitment, Use, Financing or Training of Mercenaries and the 1977 OAU Convention for the Elimination of Mercenaries in Africa have attempted to eradicate any form of mercenary activity. Both have been noticeably ineffective, due in no

1 small part to the fact that three of the main players in the field, Britain, America and South Africa, have not supported them. National efforts have focused on the use of domestic legislation to control mercenary activity. In America, private military companies like DynCorp and MPRI, which are regulated through the Arms Export Control Act of 1968 and licensed through ITAR, come under the jurisdiction of the Office of Export Controls. Russia has a more complex system. Article 359 of the Criminal Code makes mercenary activity a criminal act punishable by imprisonment. However, private security and intelligence companies, run by former KGB personnel, are licensed by a variety of bodies, from the Consultative Counsel of the Russian FSB to local regional offices. The Business Network set up in 1996 by FAPSI and ATLAS to look into information security in public bodies, local businesses, and international companies in Russia has significantly blurred the boundaries between state and private security provision. The 1998 Regulation of Foreign Military Assistance Act in South Africa distinguishes between mercenary activity, which is prohibited, and foreign military assistance, which is regulated. South Africa is one of the few countries to pass legislation that aims to monitors the companies as much as the individuals. Private companies are required to have licenses to operate and licensed approval for each contract undertaken. It is also one the few that distinguishes between companies and individuals, something that may cause future problems with the Green Paper.

Private Peacekeeping

The Green Paper suggests that the private military sector can offer cost effective, rapidly responsive options to supplement conventional peacekeeping. The potential role of PMCs in British and UN peacekeeping drew angry comments from MP Andrew McKinley. He described it as “an abdication of responsibility” by governments, highlighting just how contentious this idea is. A Commons motion called for the Foreign Secretary to reject any use of PMCs in peacekeeping. Attempts to privatise peacekeeping could be seen as “the thin edge of a dangerous wedge” which would allow control of peace operations to be diluted.

Using PMCs in peace operations arouses such strong feelings precisely because of the difficult questions they raise about the provision of security and defence functions. Once the nation-state was the only provider of security. Safety could be determined by territorial security and the exclusion of threats. This no longer applies. The post globalisation world is fluid and unstructured, made up of alliances and networks, and dependent on the trans-state flow of people, ideas and commodities. The dominance of the state has come into question yet it remains the only mechanism by which citizens can engage with international institutions. At the same time, there have been more demands that western governments take action in the face of horrific political violence or humanitarian crises.

Increased pressures placed on the armed forces to respond comes at a time when defence spending is being scaled back and the role of the military in civil society is being questioned by a wider constituency. The presence of other constituencies, such as NGOs, the media, or issue-driven groups, affects how the army is perceived and utilised as part of the government’s response to events. Following on from the 1998 SDR, there have been moves towards an explicit refocusing of the armed forces, away from concentration on external enemies and towards peace support, humanitarian

2 operations and “defence diplomacy” in line with current debates on the transformation of war and operations other than war.

The current focus on Afghanistan has not lessened the need for governments to tackle the problems of Africa, reconstruction of the Balkans, political and social consequences of AIDS, and substate threats around the world. The range of operations already carried out by private companies covers everything from de-mining to repatriation of child soldiers. Some of these are carried out in conjunction with NGOs and regional institutions. However, the potential role of PMCs in complex emergencies is as yet untested by conventional planners. What the Green Paper is suggesting is that this area be looked at more closely.

Aside from their skills, can PMCs offer something extra to peace operations that would enhance the resources of the state? The private sector offers a mix of tangible skills like military training and intangibles like generating feelings of safety and “business as usual” in chaotic environments. Because of the way that they put operations together, PMCs have acquired organisational capabilities adaptable to transborder, high-risk environments. They can also mobilise and deploy rapidly, sometimes within 48 hours. What options this may offer for operational planning, crisis management, and rapid responsiveness is something that remains unexplored. No one, least of all the private sector, is suggesting that PMCs are a solution to the complex security problems of the new century. There are very uncomfortable underlying questions associated with using PMCs, as there are with other forms of intervention whether that means national armies, sanctions or conditional aid.

Whether the private sector can understand the different criteria and dynamics of the NGO community also merits exploration. The fears of human rights violations, lack of transparency and accountability are very real concerns from segments of the international community who see PMCs as usurpers of the state or covert wings of government. Despite the restrictions that regulation would bring to the industry, a real benefit lies in its confidence building potential. The process of developing regulatory mechanisms in such a young industry holds out the option of an open-ended and dispassionate exploration of public-private security provision.

There are encouraging signs. Sandline has suggested that monitors be deployed alongside its personnel in the field. The currents of big business, everything from corporate responsibility to professional legitimacy, are tempering the way segments of the private military industry carry out their contracts. Companies who prefer long term client relationships, a permanent corporate presence and political legitimacy have chosen to conduct their businesses according to acceptable standards of professional behaviour.

The industry itself is beginning to take some responsibility for the way it is perceived, distancing itself from the rogue operators and harebrained schemes that characterised mercenaries in earlier decades. There are now discernible differences between stereotypical “mercenaries” and the private companies that specialise in the provision of military skills.

As the industry develops, it is possible that controversial areas like willingness to engage in combat support alongside a client will be clarified. How the private industry

3 as a whole accommodates companies like Sandline who are further along the spectrum in terms of what operations they will carry out will be interesting to see. The Green Paper rightly points out the distinction between combat and non-combat roles are often artificial.

Debating the use of Private Military Companies.

The debate over the potential role of PMCs in peace operations is not taking place in a vacuum. The shift of defence and intelligence functions to the private sector has been occurring for some time. The last decade has seen the growth of public-private partnerships in areas traditionally considered the sole preserve of the military. Many of these take the form of subcontracting, outsourcing or partnering arrangements. The MoD’s experience with public-private partnerships has been more successful than some other government departments. Project CONDO, currently undergoing evaluation and the Future Strategic Tanker Freight (FSTA) bids are indicative of the way that defence and private industry are learning to work together. These are still embryonic relationships and do not necessarily represent models for privatising peacekeeping or imply that it is inevitable. Debate over private involvement in national infrastructures in other areas has been inconclusive and often hostile.

Responses to 11 September have underlined the importance of integrating public and private sectors to withstand attack and ensure homeland security. How this takes shape will affect the debate on the use of PMCs. Re-assessments of the ROE, how governments respond to complex emergencies and the post globalisation evaluations of the international institutions will also contribute to this debate. How the proposed changes to the Export Control Bill, covering licensing and dual use, will affect the operations of PMCs remains unknown. Publication of the Green Paper opens the way for an exploration of these questions before the momentum of events determines what role PMCs will play in the new strategic environment.

The author is a Doctoral Candidate at Kings College London and a Research Associate with the Military Sciences Programme at the Institute.