The ICRC to expand contacts with private military and security companies
Private security firms are an established feature of the 21st century war landscape, working for states, corporations and even NGOs. The ICRC is stepping up contacts with these companies, to ensure that they know and respect international humanitarian law.
The private military and security sector has grown tremendously since the end of the " Cold War " . Today it provides a wide range of services, at home and abroad, from training troops and providing military advice to operational support, protection of assets and individuals, policing and intelligence activities. An area of particular growth is the provision of training and advice for foreign armed and police forces.
The size of the global market for private military and security companies alone was estimated at around 100 billion US dollars in 2001 and has continued to expand, boosted by the wars in Afghanistan and Iraq.
Their clients include states, armed groups, commercial firms operating in difficult environments, the UN and NGOs - even the ICRC, although only in exceptional cases and exclusively for the protection of premises. Some firms are publicly traded on major stock exchanges and market themselves as flexible tools to accomplish the security goals of their clients around the world.
New ICRC approach
The growth in the industry has led the ICRC to examine how best to relate to these security firms. Claude Voillat, of the ICRC's unit for relations with the private sector, says a more systematic approach is now planned:
" Up to now, contacts between the ICRC and private military and security companies have taken place on an informal basis.
" The ICRC now plans a more systematic approach focusing on companies operating in conflict situations or providing training and advice to armed forces. Th is will be coupled with a similar dialogue with the authority that contracts the company and with the state of origin. "
The objective of the dialogue with these companies, says Voillat, is to ensure that they know and respect fundamental humanitarian principles and the relevant provisions of the law. " Our objective is for them to include IHL in their training and counselling. We also need them to understand that they should not hinder ICRC operations but allow us access to people in need. "
Should the personnel of private security companies be considered as mercenaries? Emanuela-Chiara Gillard of the ICRC's legal division says there is no cut-and-dried answer. " Each case must be looked at individually. In most instances, from a strictly legal point of view, they fall outside the definition laid down in article 47 of Additional Protocol I to the Geneva Conventions and other relevant international treaties, " she says.
Unless they are incorporated into the armed forces of a state, the personnel of private military and security companies should be considered civilians and as such are entitled to the protection of international humanitarian law - unless they carry out activities which amount to taking a direct part in the hostilities.
" If they do become involved in armed conflict they lose their protection and can be attacked. If captured, they are not entitled to prisoner-of-war status but are protected by the Fourth Geneva Convention, " says Ms. Gillard.
In situations of violence that amount to armed conflicts, the personnel of private military and security companies must respect international humanitarian law and can be prosecuted if they commit war crimes.
Responsibility difficult to establish
While the civil liability of private military and security companies is generally accepted, their criminal responsibility is much more limited in most countries. The responsibility of commercial firms that contract them, such as oil or mining corporations, may also be difficult to establish, especially in criminal proceedings.
Ms. Gillard points out: " It may be difficult to bring proceedings against private military and security companies for practical reasons. They may have been granted immunity from prosecution before the courts of the countries where they are carrying out their activities; and those local courts may not even be operating because of the armed conflict. "
A further complication is that it might be difficult to bring proceedings before the courts of the states where the companies are incorporated, as the alleged violations are likely to have occurred abroad; most courts have only limited extra-territorial jurisdiction.
Similarly, adds Ms. Gillard, although as a matter of law the staff of such companies may be personally responsible for violations of international humanitarian law, in practice it may be difficult to find a national criminal court able and politically willing to exercise extraterritorial jurisdiction over their alleged crimes.
" States may be responsible for violations of IHL committed by private military and security companies which they have empowered to exercise elements of governmental authority, or which are de facto acting on their instructions or under their direct control, " explains Ms. Gillard. " Moreover, even if private contractors are not acting as state agents, states still have a duty to ensure respect for IHL and exercise what's known as'due diligence', by doing what's necessary to prevent and punish violations committed by individuals or entities operating on or from their territory
For Claude Voillat, it is essential that companies be made fully aware of their responsibilities under IHL, and that violations of the law by private military and security personnel are duly sanctioned.
" The ICRC does not plan to take a position on the legitimacy of these private companies, " he says, " but it will insist that the trend toward privatising military functions should not open the door to a weakening of respect for IHL and for its implementation. "