Regulating Private Military Companies

Conflicts of Law, History and Governance

Katerina Galai

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429879968
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This work examines the ability of existing and evolving PMC regulation to adequately control private force, and it challenges the capacity of international law to deliver accountability in the event of private military company (PMC) misconduct. From medieval to early modern history, private soldiers dominated the military realm and were fundamental to the waging of wars until the rise of a national citizen army. Today, PMCs are again a significant force, performing various security, logistics, and strategy functions across the world. Unlike mercenaries or any other form of irregular force, PMCs acquired a corporate legal personality, a legitimising status that alters the governance model of today. Drawing on historical examples of different forms of governance, the relationship between neoliberal states and private military companies is conceptualised here as a form of a 'shared governance'. It reflects states' reliance on PMCs relinquishing a degree of their power and transferring certain functions to the private sector. As non-state actors grow in authority, wielding power, and making claims to legitimacy through self-regulation, other sources of law also become imaginable and relevant to enact regulation and invoke responsibility.

1 Private military companies, a contemporary problem?

While the growth of the private military industry can be observed in the media and through general privatisation trends,¹ it can be problematic to obtain comprehensive data about private military company (PMC) activity. Unlike national armies and official governmental agencies, PMCs are more obscured because they are not subject to the Freedom Information Act or similar legislative tools that impose transparency. Government enquiry into the private military industry is also limited with little reporting or regulation of the industry.² Similarly, the contracts between national governments and PMCs carry commercial and security sensitivities and are generally not available for public, scholarly, or advocacy scrutiny.³ This level of secrecy and ambiguity surrounding private military companies is certainly adds to the puzzle of PMC classification and partially explains why these actors are difficult to regulate. Another challenge arises from the codification itself, with existing legal definitions formulated within a particular political context which has since shifted.

Private force has always found room to exist within different forms of governance. Understanding the limitations of existing codification sets the stage for the broader conceptualisation of private military power and its regulation. In addition, this chapter provides a high-level introduction to PMC regulation, discussing its purpose and considering different facets of accountability regulation offers in the context of PMC conduct.

Mercenaries, contractors, civilians

In the absence of a universally accepted definition of mercenaries, the term has been stretched from hired individuals, to private security firms contracted by the state, to cross-border troops providing military services.⁴ Historically, as discussed in Chapter 2, mercenaries were ascribed a more colloquial meaning, exemplifying the nature of medieval privateering and the professional aspect of the absolutist standing armies. In the twentieth century, the national liberation movements of the Cold War era urged for criminalisation of mercenaries through the ratification of the 1972 Convention for the Elimination of Mercenaries in Africa by the Organisation of African Unity (OAU). Combining the elements of nationality and motive, the first regional definition of mercenaries was comprehensively drafted in order to address the challenges that mercenaries posed for the national liberation movements and the sovereign integrity of the newly established African states.⁵ While binding on the signatory states, the OAU definition of mercenaries was subsequently altered in 1980 by the addition of Appendix III, aligning it with the most widely accepted international definition of a mercenary, codified in the 1977 Additional Protocol (AP) I to the Geneva Conventions.⁶ AP I articulates the parameters of motivation in order to define mercenaries under IL. Article 47 (2) of Protocol I states that a mercenary is any person who:

1. a is especially recruited locally or abroad in order to fight in an armed conflict;
2. b does, in fact, take a direct part in the hostilities;
3. c is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
4. d is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
5. e is not a member of the armed forces of a Party to the conflict; and
6. f has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

Later, the 1989 United Nations (UN) Mercenary Convention⁷ broadened the definition to include non-nationals recruited to overthrow a “government or otherwise undermining the constitutional order of a State; or undermine the territorial integrity of a State”. While this definition of mercenaries was largely based on AP I, it was expanded by being applied to “armed conflict”⁸ and to “any other situation”.⁹ The 2015 UN General Assembly annual report from the Working Group (WG) on the use of mercenaries compares and contrasts the concepts of mercenaries and foreign fighters. The report considers “motivation and recruitment practices, the linkages between foreign fighters and mercenaries and the human rights implications”.¹⁰ The WG concluded that while both may be recruited abroad or locally, “foreign fighter mobilisations may encompass nationals of a party to the conflict, such as from the diaspora, while mercenaries are necessarily non-nationals”.¹¹

Although AP I did not produce a timeless and universally accepted definition, it formalised the legal status of a mercenary as a non-combatant under international law (IL), marking an important change in the normative classification of private military actors. The status of PMC contractors does not have a separate definition under IL. According to the Montreux Document, the personnel of private military and security companies (PMSCs)

are protected as civilians under international humanitarian law, unless they are incorporated into the regular armed forces of a State or are members of organised armed forces, groups or units under a command responsible to the State; or otherwise lose their protection as determined by international humanitarian law.¹²

In 2013, the Geneva Academy of International Humanitarian Law and Human Rights published a revised document on the topic of regulation of private security, “The international Code of Conduct for Private Security Providers” (ICoC). The ICoC does not define contractors or civilians; their definition refers to private security companies and other private security service providers (PSCs) personnel as:

persons working for a PSC, whether as employees or under a contract, including its staff, managers and directors. […] Persons are considered to be personnel if they are connected to a PSC through an employment contract (fixed term, permanent or open-ended) or a contract of assignment (whether renewable or not), or if they are independent contractors, or temporary workers and/or interns (whether paid or unpaid), regardless of the specific designation used by the Company concerned.¹³

It is particularly important to highlight that PMC contractors are non-combatants and, therefore, civilians, if they are not incorporated into the military forces of the state. However, the idea of civilians who provide military and security services on behalf of a private company, which in turn is contracted by a state, but not formally incorporated in its military structure, is a rather problematic one. Whether referred to as civilians, non-combatants, or PMC contractors, this particular segment of non-military personnel who, by the nature of their work, have access to arms and tend to operate in conflict or post-conflict areas, challenges contemporary international legal norms and is not appropriately regulated.

Definition of private military companies

Although most advocates of the private military industry, and even some critics,¹⁴ insist on the separation between private military companies and mercenaries, the nature of their activities has substantial similarities, and their motives and methods often overlap. Putting aside the political context of the AP I definition of mercenaries, rooted in the rhetoric of decolonisation and national liberation movements, the aim of international community is to criminalise inappropriate participation in hostilities by groups and individuals who have no national or ideological relation to either party to the conflict.

The WG defines a PMSC as “a corporate entity which provides on a compensatory basis military and/or security services by physical persons and/or legal entities”.¹⁵ By acknowledging that PMC activities fall outside of the UN Mercenary Convention’s definition, they become excluded from its regulatory scope.¹⁶ Meanwhile, the AP I mercenary definition disregards most PMC personnel, many of whom are nationals of one of the parties to the conflict and are not contracted to fight in military operations.¹⁷ The WG has been following the development of the Policy and the Operations Manuals on the use of armed services from private security companies and engaging with the UN Department of Safety and Security in order to produce a comprehensive, human rights-compliant policy framework for the procurement and use of armed private security companies by UN organs and bodies.¹⁸ This initiative clearly indicates the WG’s intention to legitimise the deployment of armed private contractors by the UN.

Another definition of PMCs was proposed by the International Committee of the Red Cross (ICRC). At the fourth meeting on the ‘Swiss Initiative’ in September 2008, the Montreux Document was finalised and adopted by consensus of participating governments.¹⁹ This intergovernmental initiative intended to promote respect for international humanitarian law (IHL) and human rights law whenever PMCs are present in armed conflicts.²⁰ It states that

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.²¹

The industry as well as academic literature provides a variety of terms: private security company (PSC), private military company (PMC), private military and security companies (PMSCs), private security companies and other private security service providers (PSCs). Interestingly, the Montreux Document and the ICoC do not differentiate between PMSCs based on the nature of the contribution they make (or do not make) to the conduct of hostilities.²² While this monograph uses the term PMC to distinguish companies engaged in the provision of armed contractors, it is also concerned with how accountability for misconduct is invoked regardless of the specific naming of the company. Therefore, to an extent, the term PMC, as used in this analysis, is interchangeable with PMSC and PSC and should be recognised as a limitation. Although I critique the regulatory application and highlight limitations of the Montreux Document in the following chapters, its definition of PMCs closely supports the proposed scope of my analysis. In other words, all functions listed above, except for advisory services, apply to armed private contractors. While the ICoC builds upon the foundation of the Montreux Document, attempting to address some of its regulatory gaps, the proposed definition only covers private security companies and private security service providers (PSCs). Similar to its predecessor, the ICoC describes a PSC as “any Company (as defined in this Code) whose business activit...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Introduction
• 1 Private military companies, a contemporary problem?
• 2 Private forces in different forms of governance: historical typologies
• 3 Mercenaries of the twentieth century and state responsibility
• 4 New wars, neoliberalism, and the rise of PMCs
• 5 Legal mechanisms and challenges in invoking individual and state responsibility for PMCs
• 6 The role of international regulation and the growing power and legitimacy of companies
• 7 Limitations and opportunities arising from the corporate status of PMCs: domestic and transnational procedure for invoking corporate responsibility
• 8 Exploring the mechanisms of international criminal law to develop corporate accountability for PMCs
• Conclusion
• Index