International humanitarian law and private military/security companies
Private military and security companies – known as PMSCs – working in situations of armed conflict are also obliged to respect the provisions of international humanitarian law (IHL).
What are PMSCs?
PMSCs are private business concerns that provide military and/or security services, irrespective of how they describe themselves. Military and security services include, in particular, the provision of armed guards and the protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to, or training of, local forces and security personnel. Since the end of the Cold War, demand for PMSCs has increased to such an extent that there is now a major PMSC industry offering an ever wider range of services, with some companies employing well beyond 10,000 staff.
What is the status of PMSC staff under international humanitarian law?
The status of the personnel of PMSCs in an armed conflict is determined by international humanitarian law, on a case-by-case basis, in particular according to the nature and circumstances of the functions in which they are involved.
Unless they are incorporated in the armed forces of a State or have combat functions for an organized armed group belonging to a party to the conflict, the staff of PMSCs are civilians. Accordingly:
- they may not be targeted;
- they are protected against attack unless and for such time as they take a direct part in hostilities.
If, however, the staff of PMSCs carry out acts that amount to taking a direct part in hostilities:
- they lose protection from attack during such participation;
- if captured they can be tried for merely participating in hostilities, even if they have not committed any violations of international humanitarian law.
Guarding military bases against attacks from the opposing party, gathering tactical military intelligence and operating weapons systems in a combat operation are examples of direct participation in hostilities in which PMSC personnel may be involved.
On the notion of direct participation in hostilities, see ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law
If they are operating in situations of armed conflict the staff of PMSCs must respect international humanitarian law and may be held criminally responsible for any violations they may commit. This holds true whether they are hired by States, international organizations or by private companies.
Are employees of PMSCs not simply modern-day mercenaries?
The definition of mercenaries given by Article 47 of Additional Protocol I is very restrictive. To be a mercenary, an employee of a PMSC has to meet certain strict and cumulative criteria. For a start, no one who is a national of any of the parties to the conflict can be a mercenary. Furthermore, a person must be employed with the aim of being directly involved in combat and motivated by the desire for private gain, and then the person must actually be doing that to be considered a mercenary. As a result, most PMSC employees do not fall under the definition.
A State that has ratified either or both of the UN and African conventions against mercenarism has an obligation to prosecute and punish mercenaries. From a humanitarian law viewpoint, the only consequence in law of being a mercenary is that a mercenary is not entitled to combatant or prisoner of war status when participating in an international armed conflict. However, a mercenary is still entitled to adequate conditions of detention and has the right to a fair trial.
Are there any international Initiatives for the regulation of PMSCs?
Several international initiatives have been undertaken with a view to clarifying, reaffirming or developing international legal standards regulating the activities of PMSCs and, in particular, ensuring their compliance with standards of conduct reflected in IHL and human rights law.
Following a joint initiative of the Swiss Federal Department of Foreign Affairs and the ICRC, the 2008 Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict was endorsed by 17 States. This Document reaffirms the existing legal obligations of States with regard to PMSCs and recommends a catalogue of good practices for the practical implementation of existing legal obligations.The number of Montreux Document participants has now risen to 46 States and two international organisations. A follow-up conference called Montreux+5, organised between 11-13 December 2013, will provide States and international organizations the opportunity to share experiences in respect to regulation of private military and security companies (PMSCs). Montreux+5 also aims at widening support for both implementation and endorsement of the original document.
What steps can PMSCs take to ensure that their staff respect international humanitarian law?
Different measures both before and during a deployment are essential to ensuring that the staff of PMSCs respect international humanitarian law. These can include:
- vetting procedures for the hiring of staff;
- proper training in international humanitarian law;
- standard operating procedures and rules of engagement that comply with international humanitarian law;
- internal disciplinary procedures.
What is the responsibility of States with respect to PMSCs they hire?
States cannot absolve themselves of their obligations under international humanitarian law by contracting PMSCs. They remain responsible for ensuring that the relevant standards are met and that the law is respected.
Should the staff of the PMSCs commit violations of international humanitarian law, the State that has hired them may be responsible if the violations can be attributed to it as a matter of international law, especially if the PMSC acts under instructions or control of the State authorities.
States must ensure that the staff of such companies respect international humanitarian law. Important measures for achieving this include:
- requiring the staff to be properly trained in international humanitarian law;
- requiring that the PMSCs' rules of engagement and standard operating procedures comply with international humanitarian law.
Moreover, States must ensure that mechanisms exist for holding accountable the staff of PMSCs suspected of violating international humanitarian law.
What is the responsibility of States in whose territory PMSCs are incorporated or operate?
All States have a responsibility to respect and ensure respect for international humanitarian law, including by the staff of PMSCs. States in whose territory PMSCs are incorporated or operate are in a particularly favourable position to affect their behaviour through national law.
One way for the State in question to exercise some control and oversight could be by establishing a licensing/regulatory system. Key elements of a possible national regulatory framework could include determining which services may or may not be carried out by PMSCs or their personnel. The question of whether a particular service could cause the PMSCs personnel to become involved in direct participation in hostilities should be taken into account).
States could make the issue of licences subject to the PMSCs’ meeting certain criteria, including requirements that they:
- train their staff in IHL;
- adopt standard operating procedures/rules of engagement that respect IHL and appropriate disciplinary measures.
The State could also make approval for every contract dependent on the nature of the proposed activities and the situation in the country where the PMSC will operate. It could impose sanctions for operating without having obtained the necessary authorizations or in violation thereof (e.g. withdrawal of operating licence, loss of bond, criminal sanctions…).
Such a regulatory system should be complemented by a functioning system for bringing to justice those accused of having committed violations of international humanitarian law.