The recent increase in the outsourcing of military tasks have put staff of private military/security companies ( " PMCs/PSCs " ) in direct contact with persons protected by international humanitarian law, such as civilians and persons deprived of their liberty.
In the last decade and a half more and more functions that used to be performed by states'security or military apparatus have been contracted out to PMCs/PSCs. These activities include, among others, logistical support to military deployments/operations, maintenance of weapons systems, protection of premises, close protection of persons, training of military and police forces at home or abroad, intelligence gathering and analysis, custody and interrogation of prisoners and, on some occasions, participation in combat. This development also raises questions regarding the protection of PMC/PSC staff under IHL.
The past few years have witnessed an unprecedented increase in the demand for private security/military services that was met both by structured companies with a track record for the provision of military and security services and by a string of new companies.
Not just states, but also commercial companies, international and regional organizations as well as non-governmental organizations are resorting to privatized security services, in particular while operating in situations of armed conflict.
Security sector specialists usually agree that PMCs/PSCs will remain part of the security sector environment for the for eseeable future.
Some of the issues at stake from an ICRC perspective
The implementation of International Humanitarian Law (IHL).
Though it is often stated that there is a vacuum in the law when it comes to PMCs/PSCs, in situations of armed conflict IHL regulates both the activities of the staff of PMC/PSC and the responsibilities of the states that hire them. Admittedly, certain issues might not have simple answers. For instance, the status of PMC/PSC staff under IHL – are they combatants or civilians?
Unless they form part of the armed forces of a state, the staff of PMCs/PSCs are civilians. As such, they must not be targeted. However, if they carry out activities that amount to taking a direct part in hostilities they lose this protection from attack. In any event they must respect IHL. The status of the companies themselves is not regulated by IHL.
Distinction between civilians and combatants.
This growing recourse to new actors who, in some circumstances, appear to observers and to those operating on the ground as neither clearly civilian nor clearly combatant carries the risk of eroding the distinction – fundamental in IHL and to humanitarian operations – between these two categories of persons.
Duty to respect and ensure respect for IHL.
The ICRC's principal concern is that these new actors in situations of armed conflicts respect IHL. As a minimum, the following elements are necessary to achieve this:
PMC/PSC staff must be aware of the legal framework in which they operate, including IHL;
their operations must comply with IHL, i.e . their rules of engagement and standard operating procedures must be in accordance with IHL;
effective mechanisms for holding PMCs/PSCs and their staff accountable should violations occur must exist;
measures to achieve these elements need to be taken by the PMCs/PSCs themselves and by the states that hire them, the states in whose territory they are incorporated and the states where they are operating. The latter two situations could be dealt with by the adoption of a regulatory framework. So far, only a handful of states have adopted legislation laying down procedures that PMCs/PSCs based in their territory must comply with in order to be allowed to operate abroad and equally few regulate the PMCs/PSCs operating in their own territory.
States’ armed forces have a wide array of non-judicial and administrative corrective measures - as well as military law itself – that help officers maintain discipline, respect for IHL and effective command and control of the troops under their command.
As these tools of command are provided, this system also foresees the possible criminal responsibility of a commanding officer if s/he fails to prevent or repress violations of IHL committed by his troops that he knew or should have known about.
This concept of responsible command is a powerful instrument to prevent viol ations of IHL by soldiers during military operations. It is not clear to what extent a similar system can exist with regard to PMCs/PSCs.
The ICRC's policy on PMCs/PSCs
When a state out sources military and/or security functions, it remains responsible under IHL. The ICRC has initiated a dialogue on the issue of PMCs/PSCs with some states, in particular states that hire PMCs/PSCs, states on whose territories PMCs/PSCs are operating and states where PMCs/PSCs are incorporated. The first steps in this dialogue have been encouraging. The objectives are to ensure that states exercise their responsibilities vis-à-vis the operations of PMCs/PSCs and to encourage them to take appropriate measures to ensure respect for international humanitarian law.
In parallel, the ICRC has initiated a dialogue with representatives of the PMC/PSC industry. The aim is to better protect and assist the persons affected by armed conflicts and to promote IHL. More specifically, the ICRC seeks to ensure that PMCs/PSCs and their staff respect IHL and that they are aware of, and understand, the ICRC's mandate, activities and modus operandi .