In the last 20 years, there has been a significant increase in reliance on private military and security companies which provide services in zones of low-intensity armed conflict and post-conflict situations such as the Balkans, Colombia, Somalia and South Sudan, primarily in Western European and North American countries. This observation can be linked to the globalization of the world economy, the shift from centralized sovereignty of state as principal holder of the use of force to diffused governance, alongside the downsizing of regular armed forces of States as a result of cutting costs in the public sector are the major proponents behind the rapid development of the privatization of violence.
The archaic inter-State wars with clear trenches are a thing of the past, instead replaced by low intensity armed conflicts, with a widespread use of light and conventional weapons and the asymmetry of the belligerents.
The outsourcing of a number of basic functions which traditionally were carried out by State forces (national armies or police forces), known as the top-down privatization, has blurred the borderlines between the public services of the State and the private commercial sector creating a dangerous “grey zone”. The development of private military and security companies has produced a new type of security guards and private soldiers who operate in war zones and high-risk insecurity areas under murky legal restraints. These new modalities have replaced to a certain extent the use of traditional individual mercenaries.
Relevance
The Private Military and Security Corporations (PMSCs for short) industry currently provides in the international market a broad spectrum of services such as building and site security, convoy and transport security, advisory and training of local forces, air and logistical support amongst corporate espionage and propaganda tactics. These tasks used to be fulfilled by the national armed forces and the police. PMSCs also provide armed protection for transnational corporations in unstable regions, securing their assets.
Putting the situation into perspective using some numbers from the MENA region, the number of private contractors is estimated to be between 20,000 and 100,000 persons associated with PMSCs in Iraq.
One of the major PMSCs providing military and security services in armed conflicts or post-conflict zones is the incredibly infamous Blackwater, a PMSC based in the United States. It is estimated to have some 2,300 private soldiers in nine countries and a database of more than 20,000 former military personnel ready for deployment and engagement on short notice anywhere in the world. Its division in Barbados, Blackwater’s Greystone Ltd., employs third-country nationals from countries such as Chile, Nepal, El Salvador, Honduras and others at salaries which are lower than those recruited in the United States.
Legal Status of PMSC
The fact on the ground remains that private contractors perform military and quasi-military tasks in situations of conflict, PMSC employees often work in situations of armed conflict where they’re exposed to immediate danger, and often operate in grey areas with limited oversight or control.
There is no universally agreed upon definition of PMSCs and the definitional challenges of the same are quite vast, the definition in the Montreux document (more on that later) as provided by International Committee of the Red Cross (ICRC) is:
“PMSCs are private business entities that provide military and/or security services, irrespective of how they describe themselves. Military and security services include, in particular, armed guarding and 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” and “Personnel of a PMSC are persons employed by, through direct hire or under a contract with, a PMSC, including its employees and managers”.
Now that the gibberish is out of the way, the entire issue with the legal status of PMSC personnel is quite simple, the current laws of war – International Humanitarian Law, has provisions, rights and privileges eligible to 2 distinct group of individuals in an armed conflict: Combatants and Civilians. The principle of distinction between civilians and combatants is amongst one of the most important practices in international law, but the fact remains that PMSC personnel while not a part of armed forces of belligerents to the conflict perform roles that are militaristic in nature, which essentially means their existence is somewhat of a grey area in the current legal landscape.
The special militaristic role of such personnel requires that these determinations be made with particular care and with due consideration for the geographic and organizational closeness of many private contractors and civilian employees to the armed forces and the hostilities. The great majority of PMSC employees currently active in armed conflicts have not been incorporated into State armed forces and assume functions that clearly do not involve their direct participation in hostilities on behalf of a party to the conflict (i.e. no continuous combat function). Therefore, under IHL, they generally come within the definition of civilians. Although they are thus entitled to protection against direct attack, their proximity to the armed forces and other military objectives may expose them more than other civilians to the dangers arising from military operations, including the risk of incidental death or injury.
So, to sum it up, under the current customary International Law, PMSC employees as long as not incorporated into the armed forces, retain their civilian status, unless they carry out acts that constitute to taking part in hostilities, in which case they temporarily (for as long as ‘continuous combat function’) lose the civilian status; on the other hand if the employees have been incorporated into armed forces of a party to the conflict, whether through domestic jurisprudence or in a de facto manner by being assigned a continuous combat function, would no longer qualify as civilians.
Attempts at Regulations and Accountability Mechanism
There have been 3 major events when it comes to regulations of PMSCs directly, and they are, as follows:
Articles on Responsibility of States for Internationally Wrongful Acts -
ARSIWA was codified in 2001 by ILC and has served faithfully as the go-to document for discussing responsibilities of States for Acts that are Internationally Wrongful in nature. In specificity, Article 8 – Conduct directed or controlled by a State, explains quite clearly how conduct of a person or a group of persons shall be considered to be an act of State – thereby making the act attributable to the State, if the person or group of persons in question were acting under direction or control of, or acting on instructions of the State.
This allows violations made by contractors to be linked to contracting States, which as a result puts responsibility on Contracting State for wrongful actions carried out instead of the previously happening case where responsibility and consequences were skirted off by the Contracting State.
The Montreux Document - 2008
This document is the product of an initiative launched cooperatively by the Government of Switzerland and the International Committee of the Red Cross. While not a legally binding document, it is split into 2 parts where it recalls existing legal obligations of States and PMSCs and their personnel (Part One), and suggests Good Practices to all the involved stakeholders to promote compliance with IHL (Part Two).
At the moment of writing, 58 States and 3 International Organizations have joined the Montreux Document, in hope of using it as a guiding framework to regulate PMSCs on both domestic and international jurisprudence.
· International Code of Conduct Association of PMSCs – 2010
During the last few years the private security industry saw an increase in voluntary initiatives. The International Code of Conduct (ICoC), which is based on IHL and human rights, lays out rules for the industry. The ICoC was established in 2010 as a result of a multi-stakeholder process involving PMSCs, governments and civil society organizations. Over 700 PMSCs have signed the ICoC but only 102 PMSCs are members of the International Code of Conduct Association (ICoCA).
There is a need for a legally binding instrument to regulate and monitor the activities of private military and security companies. Most UN Member States, upon considering the impact of PMSCs on the enjoyment of human rights, assert the opinion that outsourcing functions related to the legitimate use of force to private contractors requires binding regulatory and monitoring mechanisms at the international level due to the transnational character of the industry. The position of Western States, however, is that a binding instrument with regulatory and oversight mechanisms is too premature. The United Nations might explore creation of an open-ended international regulatory framework to monitor PMSCs for the time being, but the stance of Western States is quite concerning to the larger international community.
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