Pedigree Dogs of War

What is the legal difference between hiring a helicopter for use in a coup against a West African government, and sending supplies to the Chechen rebels? If there isn't one, why isn't Mark Thatcher in Belmarsh? Conversely, why aren't the "foreign terrorist suspects" in Belmarsh Prison free and, like Mr Thatcher, at large in London? Why is an alleged engagement in foreign military operations called terrorism one moment, and business the next?

The question is an important one, for mercenaries are becoming respectable again. On Thursday Tim Spicer, Britain's most notorious soldier of fortune, will be speaking at the School of Oriental and African Studies.(1) Last month, he addressed a conference at the Royal United Services Institute.(2) Last year, one of the companies he runs acquired a $300m contract from the United States government for security work in Iraq.(3) This man, who makes his living by entering other people's conflicts, now moves through the establishment like the boss of any other corporation.

Spicer is the mercenary who, in two years, caused two international incidents. The first was in Papua New Guinea in 1997, where he was hired by the government to recapture the island of Bougainville from separatists. Spicer was seized by resentful army officers, and the subsequent row brought down the Papuan government. The second was in Sierra Leone in 1998, where, with the covert blessing of British diplomats, he imported weapons for troops trying to restore an ousted government. The ensuing scandal almost forced the resignation of the British foreign secretary.

Spicer says that his companies "operate strictly within the law".(4) And it is true that, while he has faced criminal proceedings in Papua New Guinea, he has never been charged with an offence in the United Kingdom. But let us imagine that he had been gun-running and attempting to regain territory on behalf of fundamentalist Muslim leaders, and that, instead of being a blue-blooded alumnus of Sherborne School and the Scots Guards, he possessed a foreign accent and a bushy beard and quoted the Qu'ran in his public speeches. Would he now be rubbing shoulders with government ministers, or would his companies be on their list of proscribed organisations? In the United Kingdom, the application of the law against involvement in foreign conflicts is discriminatory. It is not the activity which is proscribed, but the person who carries it out.

In principle, mercenaries are regulated by the 1870 Foreign Enlistment Act. It's an offence to assist the armed forces "of a foreign state at war with any foreign state at peace with Her Majesty." But no one has ever been prosecuted for it, and the act is widely regarded as useless. The government has avoided the need to test it by deciding that some people are terrorists, and therefore contravene a different set of laws, while others are businessmen, and therefore contravene no laws. Their classification depends on their nationality (British subjects, for example, cannot be detained without charge or trial in Belmarsh); the identity of the government they intend to fight or support; and their ideology (if they believe in what they are doing, they are terrorists, if they do not they are businessmen).

The distinction has nothing to do with the morality of their cause. The people of Bougainville, brutally treated by the government of Papua New Guinea, had a powerful moral case for self-determination, and the government a weak moral case for using armed force to seize their land for a giant copper mine, yet this does not appear to have affected our government's decision to treat Spicer's operation as business. The moral case for a Kurdish insurrection against the government of Turkey is as strong as the moral case for a Kurdish insurrection against the former government of Iraq, yet this hasn't stopped the British government from classifying its supporters and former supporters as terrorists.

And now the government seems to be about to make one set of foreign adventurers even more respectable. Most companies do all they can to avoid regulation, but not Britain's mercenaries. As Spicer said last month, "we should welcome oversight and regulation, not shy away from it. It helps further legitimise the industry".(5) The government agrees. The consultation paper the Foreign Office published in 2002 argued that a licensing system would allow the government to "distinguish between reputable and disreputable private sector operators" and to "encourage and support the former". A blanket ban, on the other hand, "would deprive British defence exporters of legitimate business".(6) Jack Straw, the Foreign Office says, is likely to propose a licensing scheme for mercenaries within the next few months.

At first sight, a licensing system looks better than no system at all. The first problem is that it institutionalises the discriminatory application of the law. Just as the government does when it licences the export of weapons, it will decide that some foreign conflicts are good and others are bad.

And this, in turn, allows it to support military actions without declaring war or seeking prior parliamentary approval. By deciding that they can engage only in the conflicts of which it approves, the government, whether it intends to do so or not, will effectively be deploying British mercenaries as proxy militias.

Perhaps with this end in mind, it has been assisting Mr Spicer in his campaign to improve the mercenary's image. When he rebranded the members of his trade as "private military companies", the Foreign Office immediately followed suit.(7) Now he's trying to make them sound even more respectable - "private security companies" - and the government has again fallen into line. When I asked an official at the Foreign Office a question about mercenaries last week, he replied "they're not mercenaries, they're private security companies." "What's the difference?" "The difference is that a private security company is a properly registered company, not an individual getting a few friends together."(8) You cease to be a mercenary, in other words, by sending £20 to Companies House.

The government's consultation paper reads like a PR brochure for the dogs of war. "There is nothing wrong with governments employing private sector agents abroad in support of their interests"; hiring mercenaries is "a cost effective way of procuring services which would once have been the exclusive preserve of the military" and "a strong and reputable private military sector might have a role in enabling the UN to respond more rapidly and more effectively in crises."(9)

None of this is to suggest that the problem is easy to resolve. If the government banned British subjects and residents from engaging in any foreign conflict, no one would be able to assist the armed opposition to the Burmese junta, or enlist to fight in another Spanish civil war. If it permitted us to engage in any foreign conflict, the United Kingdom would become the launch pad for numberless attempts to overthrow democratic governments. So there needs to be some means of choosing. But not, surely, the one the Foreign Office has in mind. It seems to be preparing to license only those operations which make money, and which assist Western strategic interests. And it seems to want to turn men like Tim Spicer and Mark Thatcher from pariahs into ambassadors.

References: 1. He’ll be speaking at 18:00, at the School of Oriental and African Studies, Thornhaugh Street Russell Square, London WC1. Tickets will be sold on the door only.

2. Tim Spicer, 6^th December 2004. Private military companies in the current global order. Speech to the Royal United Services Institute for Defence and Security Studies. http://www.rusi.org/events/ref: E4188FAF2D1DD9/info:E41B5F79C136F9/

3. Eg Severin Carrell, 19^th September 2004. Spicer cleared to pursue pounds 160m Iraq contract. The Independent on Sunday.

4. Quoted by Harry Arnold, 12^th May 1998. Hero who was always in trouble. The Mirror.

5. Tim Spicer, 6^th December 2004, ibid.

6. The Foreign and Commonwealth Office, 12th February 2002. Private Military Companies: Options for Regulation. Green paper.

7. There’s a very interesting discussion of this process by Duncan Campbell, 30^th October 2002. Marketing the New 'Dogs of War'. The Centre for Public Integrity. http://www.publicintegrity.org/bow/report.aspx?aid=149

8. Telephone discussion with Steve Bird, the Foreign Office, 21^st January 2005.

9. The Foreign and Commonwealth Office, ibid.