International humanitarian law and private military/security companies

Private military/security companies in conflict

The actions of private military/security companies in Iraq and other areas of conflict have fuelled the debate over their legal accountability.
An ICRC expert explains how the law of war (international humanitarian law) applies to these companies and their employees and efforts to ensure they respect their legal obligations.

The ICRC's efforts to promote respect for IHL by the private firms – Melker Mabeck

©Taken from Shadow Company- shadowcompany.com

What is international humanitarian law?

The body of international law applicable in times of armed conflict that:

protects persons not or no longer taking a direct part in hostilities; and
regulates permissible means and methods of warfare.

Who is bound by international humanitarian law?

Everyone in situations of armed conflict: states, organized armed groups, multinational forces, civilians and the staff of private military/security companies ("PMSCs").

What is the status of the staff of PMSCs under international humanitarian law?

Unless they are part of 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 may not 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 mere participation in hostilities even if they have not committed any violations of international humanitarian law.

Are employees of PMSCs not simply modern-day mercenaries?

To be a mercenary, an employee of a PMSC has to fulfil so many criteria that most of them do not fall under the definition. As a start, no one who is a national of any of the parties to the conflict is a mercenary. Furthermore, a person must be employed with the aim of being directly involved in combat, and then the person must actually be doing that to fulfill the criteria of mercenary.

If a state ratified any or both of the UN and African conventions against mercenarism, then this state 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 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.

What steps can PMSCs take to ensure that their staff respect international humanitarian law?

If they are operating in situations of armed conflict the staff of PMSCs must respect international humanitarian law and face criminal responsibility for any violations they may commit. This holds true whether they are hired by states, international organizations or by private companies.

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 the relevant standards are met.

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, in addition to the company and its staff.

States must ensure that the staff of such companies respects 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 and, possibly, the PMSCs themselves in civil proceedings.

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.

One way for the state of incorporation or operation to exercise some control and oversight could be by establishing a licensing/regulatory system. Key elements of a possible national regulatory framework could include:

a prohibition of certain activities (e.g. direct participation in hostilities unless incorporated in the armed forces);
a requirement that PMSCs obtain operating licences based on meeting certain criteria, including requirements that the PMSCs:
- train their staff in IHL;
- adopt standard operating procedures/rules of engagement that respect IHL;
- adopt appropriate disciplinary measures;
a requirement for authorization for every contract depending on the nature of the proposed activities and the situation in the country where the PMSC will operate; and 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.