Private Military and Security Companies ATHA Specialized Training on International Humanitarian Law June 1, 2010 Stockholm, Sweden

Private Military/Security Companies  As such, PMSCs do not have legal status / obligations under IHL. Yet: individuals working for PMSCs do.  Are they combatants or civilians? Or civilians taking a direct part in hostilities? Or civilians accompanying the armed forces?  Which law applies, if any? Concern of a “legal vacuum” justified?

Definitions  Private military company (PMC): corporate entity which offers a range of military services to clients (often states). This may include training, planning, intelligence analysis and technical support.  Private security company (PSC): corporate entity which provides defensive security services in protection of individuals, property and or materials. Usually subsidiary or subordinate of a PMC; personnel may be armed (for defensive purposes) – they do not engage in combat.  Non-governmental organization (NGO): organization created by private persons or organizations with no participation or representation of any government (may receive funds from a government, though no governmental representation in the NGO).  International NGO (INGO): any international organization that is not founded by an international treaty. Resolution 288 (X), ECOSOC  Humanitarian assistance: aid to an affected population that seeks, as its primary purpose, to save lives and alleviate suffering of a crisis affected population; must be provided in accordance with the basic humanitarian principles of humanity, impartiality and neutrality. Civil Military Guidelines, 2008

Mercenaries? AP I, Art. 47 “1. A mercenary shall not have the right to be a combatant or a prisoner of war. 2. A mercenary is any person who: (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (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; (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) is not a member of the armed forces of a Party to the conflict; and (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.” (bold emphasis added)  IHL does not prohibit / criminalize them as such, contrary to the 1977 Organisation of African Unity Convention for the Elimination of Mercenarism in Africa and the 1989 United Nations International Convention against the Recruitment, Use, Financing and Training of Mercenaries. Both of the latter criminalize a variety of activities.

Part of armed forces? AP I, Art The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, 'inter alia', shall enforce compliance with the rules of international law applicable in armed conflict. 2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities. 3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

IHL is binding on all parties in conflict  If personnel of PMSC take a direct part in hostilities, they may lose protection from direct attack and if captured are not entitled to POW status (are not privileged combatants w/ concomitant immunity from some municipal laws)  If PMCs are not part of armed forces and are not directly participating in hostilities than they may not be directly attacked. State responsibilities  Respect & ensure respect for IHL law. Ongoing discussion as to precise extent of “due diligence” obligation in context of HR law  Execution of responsibilities depending on context:  State hiring PMC  State of PMC registration/incorporation  State of PMC operation PMSCs and the Law

Montreux Document, September 2008  It is a non-legally binding document among (initially) 17 governments, including stakeholders such as USA, UK, Iraq, Afghanistan, Sierra Leone and South Africa.  Part I: recalls the application of 27 core international obligations of States, PMC and their personnel  Part II: describes 73 good practices for States, designed to assist governments in complying with these obligations  Highlights the responsibilities of, and good practices for, three types of States:  contracting States  territorial States  home States

Montreux Document, Cont’d. 24. The status of the personnel of PMSCs is determined by international humanitarian law, on a case by case basis, in particular according to the nature and circumstances of the functions in which they are involved. 25. If they are civilians under international humanitarian law, the personnel of PMSCs may not be the object of attack, unless and for such time as they directly participate in hostilities. 26. The personnel of PMSCs: a) are obliged, regardless of their status, to comply with applicable international humanitarian law; b) 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; c) are entitled to prisoner of war status in international armed conflict if they are persons accompanying the armed forces meeting the requirements of article 4A(4) of the Third Geneva Convention; (…)

 State responsibility: Common Article 1: respect and ensure respect; tasks can be outsourced, responsibilities cannot.  Command responsibility: Outsourcing undermines effective command and control; Responsible command requires internal disciplinary system.  Individual responsibility: Universal jurisdiction for war crimes; Extraterritoriality (MEJA)  Self Regulation: Codes of Conduct Accountability