IntroductionPMCs – private military companies that operate in various zones of conflict. They provide military skills in verticals such as combat operations, planning, intelligence gathering, operational support, logistics, training, and procurement and maintenance of arms and equipment.
PSCs offer security and protection of personnel and property, including humanitarian and industrial assets.The decrease in the amount of armed forces throughout the world after the collapse of the Warsaw Pact and the increase in new conflicts, demand for military manpower and expertise, was the cause of the rapid growth of PMCs and PSCs in the 1990s. Western security strategies, after the cold-war called for a restructuring and of armed forces. Following the trend of “outsourcing,” many military organizations gave up their non-core enterprises, such as the infrastructural defense and the protection of individuals, leaving them to be taken care by PMCs and PSCs.The huge number of PMC and PSC employees – when totalled, outnumber UK’s troops – contracted during the Bush administration, multinational corporations and even non-governmental organizations in Iraq has started discussions over their status under international humanitarian law as outlined in the Geneva Conventions. This debate is very significant, as the status of the PMCs defines their rights, obligations and accountabilities.Article 3 of the Geneva Conventions differentiates between people who actively participate in armed conflicts, combatants, and civilians, those who do not.
But, what constitutes “active participation” and can a weapon-carrying person still be called as a civilian? Or, is a PMC employee actually a mercenary?Academics, politicians, non-governmental organizations and the judiciary have debated over these definitions given by the Geneva Conventions and not succeeded to come up with clear resolutions about the status of PMC employees. Even though majority are generally classified as civilians, since they are not part of the actual armed conflict, they increasingly take control of military tasks, such as the protection of civil authority buildings and politicians. In doing so, PMC and PSC employees become partially-legitimate military targets, losing their civilian status when actively engaging in hostilities.The ambiguity of the these statuses of the PMC employees often blurs the line between civilians and combatants in international humanitarian law, thereby initiating situations that may lead to a greater disdain of the laws of war.
History of PMCs/PMSsThe incomplete presence of centralized control created a situation suitable for the private soldier. While initially many soldiers hired themselves out as freelancers (the origin of the modern business term), sooner or later, either the money ran out or that part of the war came to an end. In either case, the soldiers were left unemployed. Having no homes or ways to feed themselves, many of these soldiers formed “Companies”. These were organizations birthed to facilitate their employment as a group and provide sustenance and protection. They would travel together as a company in search of employment opportunities, usually in the form of new campaigns to fight, and feed themselves along the way by blackmailing towns and villages.Thus, skilled personnel as employees and unstable states as clients were present for the private military industry (PMI).
As a result, PMCs filled the gaps caused by the Cold War. Private military or security companies were used extensively by countries, organizations, global corporations, NGOs and groups since the end of the Cold War. Every multilateral peace mission that was conducted by the UN since 1990s included PMCs. Moreover, the states that outsourced these services ranged from strong ones like the U.S. to states such as Sierra Leone. Annual revenues of the industry boomed from $55.
6 billion dollars in 1990 to over $100 billion in 2003. And it would be about $200 billion dollars in 2010 based on the financial calculations of the industry.By the end of the Cold War, an increasing number of third world countries were left without reliable and effective support in terms of their military, creating serious deficiencies in their defense systems.
Most powerful western countries decreased their defense budget, and thus tons of weaponry started appearing on markets worldwide. Since these illegal markets were involved in this change, sophisticated weapons were made readily available for almost anyone who had the necessary financial means to obtain them. In parallel with this transformation, few western countries changed their approach towards their armies, security services and outsourced some activities. Baby steps were already taken during the Vietnam War in the 70s by using civilian transportations to provide troops to the field and military contractors to provide various equipment.
Later, by searching for competitive solutions on the market, outsourcing became a flexible and cost effective solution for most powerful countries. There are three main recognizable reasons of the increased activity of Private Military Firms, which are the following: Changed international security situation after the Cold War;More liberal international trading methods and policies;Outsourced classic State roles in various fields, including privatization. International LawThe Hague Conventions of 1907While the Hague Conventions have not directly talked about mercenaries, but the Hague Convention V talks about the implications of their activities. Article 4 states that groups of combatants are not to be created, nor is recruiting to be initiated on the territory of a neutral state to assist in conflict. Article 5 gives a direct responsibility to the neutral state to guarantee that the acts to which Article 4 refers do not take place in its land. The effect of Article 17 is that an individual who acts in favour of a belligerent by taking up arms as a mercenary or private military contractor cannot avail himself of his neutrality. Nevertheless, the same article states that such an individual is still entitled to the protection afforded to nationals of belligerent states.
The Geneva Conventions of 1949 and the 1977 Additional ProtocolsThe Geneva Conventions and their Additional Protocols are the base of International Humanitarian Law, the body of law that manages the conduct of armed conflict and aims to decrease its after-effects. They specifically protect non-combatants(civilians, health workers and aid workers) and those who are no longer part of the hostilities, such as wounded, sick and shipwrecked soldiers and POWs. The Conventions and their Protocols call for precautions to be taken to prevent or put an end to all breaches. They contain strict rules to handle with what are known as “grave breaches”. Those responsible for these breaches must be found, tried or extradited, whatever country they belong to.
Mercenaries receive no mention in any of the four Geneva Conventions of 1949. The first mainstream international humanitarian law instrument to deal specifically with mercenaries was the 1977 Additional Protocol I thereto. It applies exclusively to international armed conflicts and fewer states are party to it than to the Geneva Conventions of 1949. Nevertheless, the ICRC considers Article 47 of Additional Protocol I as reflecting customary international humanitarian law. This mercenary provision was first proposed in 1976 by the Nigerian delegation to the Diplomatic Conference, albeit in slightly different terms.
In 1977, following significant debate and consideration of the issue by a working group, the article was adopted by consensus. Many delegations stated that they supported the inclusion of the provision, ”in the spirit of compromise”. Indeed, the working group dealing with the mercenary provision reported that ”It should not be thought that all delegates were fully satisfied with the final text.” Article 47.
1 of Additional Protocol I provides that individuals who are found to be mercenaries are to be deprived of the rights of combatant or prisoner of-war status. Article 47.2 defines a mercenary as any person who:Is specially recruited locally or abroad in order to fight in an armed conflict;Does, in fact, take a direct part in the hostilities;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 rank and functions in the armed forces of that Party;Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;Is not a member of the armed forces of a Party to the conflict;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;International Convention against the Recruitment, Use, Financing and Training of Mercenaries, is a 2001 United Nations treaty that prohibits the recruitment, training, use, and financing of mercenaries. At the 72nd plenary meeting on 4 December 1989, the United Nations General Assembly concluded the convention as its resolution 44/34. The convention entered into force on 20 October 2001 and has been ratified by 35 states.Countries with large militaries that have not ratified the convention include China, France, India, Japan, Russia, the United Kingdom, and the United StatesInternational Humanitarian LawInternational humanitarian law (IHL) is a framework of international treaties that seeks to guide state actions in wartime. Its core goal is to mitigate the brutality of war.
IHL’s foundational documents are the Geneva Conventions and their Additional Protocols, several conventions banning the use of certain weapons, and the Rome Statute establishing the International Criminal Court, which is charged with prosecuting war crimes. IHL’s early conventions focus primarily on the actions of states and their representatives in interstate wars; the Additional Protocols signed in 1977 sought to extend these rules to internal conflicts, which were becoming increasingly common.Under IHL, two categories of persons are recognized in conflicts: combatants and civilians/non-combatants. This distinction matters for two main reasons: first, it is meant to ensure protections for non-combatants as far as possible; second, the question of status determines who can fight without fear of prosecution. The ‘combatant’s privilege’ gives soldiers the right to kill without being perceived to be committing murder, and it is accompanied by responsibilities about how battle is conducted – essentially, it requires soldiers to abide by IHL in prosecuting wars. This status also accords combatants the protections of prisoner of war (POW) status, rather than criminal status, if they are captured – assuming they have conducted themselves in battle in accordance with IHL. This protection is intended to give soldiers an incentive to follow IHL’s rules.
The differences in status are also meant to keep others out of combat. Those that engage in combat in violation of the distinctions between the two recognized groups are regarded as unprivileged belligerents and do not receive POW protections.The distinction between combatant and civilian is more ‘generic’ when applied to non-international armed conflicts. Combatant status and the protections it accords exist only in international armed conflicts. The combatant–civilian distinction remains critical, however, because civilians are protected from direct attacks in both non-international and international armed conflicts – as long as they do not fight. In non-international armed conflicts, the distinction turns on who is involved directly in fighting, and therefore whom fighters may attack. Who can lawfully participate in hostilities is dependent on the domestic laws of the state involved.
While IHL delineates two stark classifications – combatant and civilian – it must fit a range of actors within them. Combatant status is reserved for members of armed forces, along with militias and similar groups affiliated with the state. The militia category was established to ensure protections and obligations for resistance fighters, with World War II in mind. Combatants may participate in conflict without fear of prosecution for murder, but they are also legitimate targets in a military conflict.All those who are not combatants are civilians. This status is intended to ensure that those whose lives are affected by conflicts are protected from hostilities, and in particular from direct attack. As long as they do not take part in hostilities, civilians cannot legitimately be targeted by attackers.
It is important to keep in mind that IHL does not prohibit civilian participation in combat: what it does is to provide protections for civilians if they stay out of combat. ‘Civilians accompanying the force’ (CAFs) can gain some of the protections associated with combatant status, notably POW status, as long as they are properly identified as civilians working for the armed forces. They cannot be targeted deliberately, although if they are co-located with legitimate military targets, attacks against those locations are nonetheless legitimate. While their direct contribution to the war effort means that CAFs risk their protection against attack, they are not combatants. Also, if they participate directly in hostilities by taking up arms (as opposed to conducting intelligence activities or targeting weapons systems), then they also lose the right to POW status.
Moreover, if they do participate, they are considered unlawful combatants or belligerents and may be prosecuted as criminals if captured. Table 1 gives a breakdown of the rights and dangers that accompany status under IHL.Various such treaties like the OAU and the Draft Luanda Convention have been signed. Distinction between PMCs and mercenaries has been clouded in recent years. PMCs increasingly play military roles, which should label them as mercenaries.
This causes confusion in placing them into one of the IHL’s categories. Each treaty suffers from different pitfalls.Case studiesThere are various advantages and disadvantages of utilising PMCs.
Some of them are listed in the table below. It is suggested that the delegate research these in-depth.IraqThe US allowed the use of mercenaries in the 2003 invasion of Iraq. They were given autonomy and immunity from Iraqi laws to do everything and anything to protect US’s interests. This was condemned by many nations in the General Assembly. UN could do little to stop this from happening. There were more private contractors than US troops in Iraq.
When a squad of Blackwater contractors killed 17 civilians at a Bagdad traffic circle in 2007, it provoked a firestorm in Iraq and at home, marking one of the nadirs of that war.AfghanistanThe US employs more than 100,000 private militants in Afghanistan and makes up ? of all the contractors. They are used for various activities such as manning military bases, protect convoys and protect targets. Multiple contractors have entered into massive contracts. They were also accused of bribing Taliban operatives for safe passage of goods and refugees.SomaliaPMCs were hired in Somalia for the rampant issue of piracy. It was found out that the PMCs operate outside the Constitutional framework for security institutions in Somalia and have engaged in operations unrelated to piracy, including a recent operation to prevent a candidate for the Puntland presidency from campaigning in Bossaso. These were under direct command of the President.
Blocs3 major blocs are formed for this issue:Countries who use and sponsor PMCsCountries where PMCs are utilisedCountries which do not use or support the use of PMCsConclusionIf warfare is too important to be left to the generals, it is certainly too important to be delegated to contractors. Nor should the pace of outsourcing beallowed to determine whether IHL guidelines are eroded or reinforced. USresort to PSCs is largely driven by domestic politics. Reliance on PSCs neednot be as transparent as government activities, and the military simply does not have sufficient manpower for its current deployments without contractor support, while increasing the size of the armed forces is politically difficult. Many scholars of the private security industry have highlighted the problem of determining appropriate public and private functions with regard to the use of force. They have noted the danger that outsourcing may go too far in this particularly critical area. Indeed, some argue that privatization has already gone too far (Singer, 2007).
The problem has been to establish clear dividing lines. IHL may help provide such guidelines. Governments have a responsibility to evaluate whether they should scale back their reliance on PSCs, to ensure that they do not put the status of contractors in jeopardy and to reaffirm their own commitment to IHL. Particularly if more countries are going to add their own PSCs to the market, it is critically important to ensure that PSC employees adhere to the laws of war. Alternately, if fundamentally military activities cannot be undertaken by the state, perhaps they should not be undertaken at all.This implies two things.
First, those governments that now rely heavily on contractors in war zones, such as the United States, should re-evaluate the tasks they give to PSCs, and they should ensure that contractors are not used in ways that have a high likelihood of bringing them directly into hostilities. There is support for this position among at least some in the US military, as noted by Admiral William Fallon, former commander of US Central Command: ‘my instinct is that it’s easier and better if they were in uniform and were working for me’ (cited in Baker, 2007). Second, both national and international legislation are needed to clarify the status and appropriate activities of PSCs.
An international legal framework is needed to ensure that private security companies are regulated, protected, and restrained in their actions wherever they are employed. Efforts to establish formal international guidelines have failed so far, owing to the divide between those who seek to eliminate PSCs on the grounds that they are akin to mercenaries and those who see the presence of PSCs as a fait accompli. Informal efforts such as the Montreux Document are one way to remind states of their obligations under IHL, and of the accountability issues regarding those who act in their name – or under their contracts.Resolutions to be addressed