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Getting private military and security companies to respect the law

17-04-2008 Interview

As more military and security tasks are “outsourced” to private firms, questions arise as to what rules govern their behaviour in conflict situations. ICRC legal adviser Cordula Droege comments on an initiative by the Swiss government to promote respect for international humanitarian law and propose some ways of dealing with the issue.

How did the Swiss initiative on private military and security companies come about?  

The idea came from the Swiss Federal Department of Foreign Affairs. Because of the increased presence of private military/security companies (PMCs/PSCs) in countries experiencing armed conflict, including occupation, the Department thought it would be useful to start a process of dialogue and reflection involving States and concerning the legal rules that apply.

This process would also highlight steps that States could take to promote respect for international humanitarian law (IHL) and human rights law by these companies, whose appearance on the scene is relatively recent. The ICRC is glad to be associated with the project.

 Who is involved in this initiative – and what are the specific goals?  

This is essentially an initiative lauched by a State for States. But representatives of the industry have an extremely important contribution to make, so they too have been consulted, as have a small number of experts.

Obviously it is up to States to decide how they wish to proceed. As a minimum we would want the responsibilities of States and PMCs/PSCs and their staff under international law to be fully confirmed and acknowledged.

A further useful outcome could be a document providing guidance to States in their relations with PMCs/PSCs. This might suggest steps, based on good practice, that they could take to enhance respect for IHL and human rights, either when they hire PMCs/PSCs, when these companies are operating in their territory or when PMCs/PSCs based in their territory export military and security services abroad.

This document could also put forward the option of adopting a national regulatory framework that would provide a solid legal basis for dealing with the issue.

 What are the next steps?  

Two intergovernmental meetings, bringing together experts from States with relevant experience and a small number of industry representatives and other experts, took place in 2006. The response was very positive and the participants encouraged Switzerland to pursue the initiative.

We are holding a third intergovernmental meeting in April 2008 to discuss the existing international legal framework governing the activities of private military and security companies and the responsibilities of States in this regard, as well as to make recommendations for States on how to implement their obligations in practice. Switzerland aims to bring the process to a conclusion by the end of 2008.

One thing is certain: the presence of PMCs/PSCs in conflict zones is likely to continue or even increase, and the time to start taking regulatory action is now.

 What rules apply and are they adequate?  

Journalists and even experts often claim that there is a gap in the law when it comes to PMCs/PSCs. For the ICRC, on the other hand, it is clear that in situations of armed conflict there is a body of law that applies, namely IHL, which regulates both the activities of PMC/PSC staff and the responsibilities of the States that hire them.

The law also places obligations on the governments of countries where these companies are registered or incorporated, and where they operate.

In case of breaches of IHL, the legal responsibility of PMC/PSC staff and of the States that hire them is quite clear. Admittedly, practical difficulties have arisen in bringing legal proceedings when violations have taken place.

Where the law falls short is in the field of national or international control over the services PMCs/PSCs may provide and of the administrative processes, if any, which they must respect in order to be allowed to operate. There is no international regulatory framework specifically focusing on this industry and its activities.

Only a handful of States have adopted legislation specifically establishing procedures that PMCs/PSCs based in their territory must comply with in order to be allowed to operate abroad (South Africa) or that regu late the companies operating in their own territory (Iraq, Sierra Leone).

Finally, we shouldn’t forget that the law is also there to protect the personnel of these companies, under certain conditions. The protection they are entitled to will vary, according to the type of activity they are carrying out.

 Does the initiative simply reflect the desire of lawyers to regulate everything?  

Not at all! PMCs/PSCs are increasingly working in situations – Iraq, for example – that bring them into direct contact with vulnerable people who are protected by the Geneva Conventions; it is essential for them to know and respect the law. Some PMCs/PSCs have in fact called for regulation and for the law to be clarified, and have welcomed the initiative. And, again, the initiative is not about introducing new regulations but about reaffirming existing international law and providing guidance for State action.

Link to Swiss Federal Department of Foreign Affairs   – Outline of the initiative