The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Private Military Companies

Overview of the Phenomenon

Since the end of the Cold War, the reshaping of State military policy and budget, backed by a general trend of economic privatization, has led to the creation of an important and lucrative international security private sector. The rise of private military companies (PMCs) and private security companies (PSCs) is to be understood in a wider context of privatization of governmental functions, such as security and defense, by States. In 2010, the global PMC market was estimated to total $200 billion and employ about one million personnel.

The PMC industry is offering a wide range of services, with some companies employing more than ten thousand staff. In Iraq and Afghanistan, the U.S. Army has relied on private military companies and private security companies for activities ranging from logistics support to guard duties and training, such as construction of military bases and food preparation for the military, security for U.S. military bases, and weapons management and training of new Iraqi military and police forces. As of March 2011, according to its own sources, the U.S. Department of Defense had more contractor personnel in Afghanistan and Iraq (155,000) than uniformed personnel (145,000). In those two countries, contractors made up 52 percent of the U.S workforce.

There are different kinds of PMCs and many attempts to classify their mixed services, ranging from security to military activities. For this reason, the term private security company is also used alongside private military company . Their activities can be divided into three main sectors:

  1. military provider firms that can include serving in front-line combat;
  2. military consulting firms that provide strategic advice and training; and
  3. military support firms that provide logistics, maintenance, and intelligence services to armed forces.

It is worth noting that some humanitarian organizations as well as private corporations can hire them to provide security for their operations.

Two events involving private contractors of the U.S. Army in Iraq have shed light on the phenomenon and raised questions as to its legality. In April 2004, the killing and mutilation of four employees of the private military company Blackwater and the following assault on Fallujah by the U.S. Army led to questioning the relationship between the U.S. military and the PMC employees as well as the accuracy of calling them “civilian” contractors. In 2003 and 2004, the implication alongside U.S. soldiers of civilian contractors from the private military company CACI in the torture of internees at the U.S. controlled detention facility of Abu Ghraib (Iraq) also raised the issue of their accountability for violations of humanitarian and human rights law. Investigations have been conducted in the U.S. military; Article 15-6 Investigation of the 800th Military Police Brigade , most commonly known as the “Taguba Report” (March 2004), and Investigations of Intelligence Activities at Abu Ghraib (August 2004), also known as the “Fay-Jones Report,” have contributed to shedding light on this issue. Investigations by the U.S. Army found that contractors were involved in 36 percent of the proven Abu Ghraib incidents and identified six particular employees of Titan and CACI as individually guilty (see Fay-Jones Report). While a small number of low-level U.S. soldiers were court-martialed for their crimes, none of the private contractors named in the U.S. Army investigation reports faced prosecution in front of military or civil courts (infra Jurisprudence).

The subcontracting of activities by an army to private companies poses several challenges to international humanitarian law, notably the question of the status of PMCs and their personnel under international humanitarian law (IHL) and its potential weakening of the concept of commanders’ responsibilities.

In any case, the swift evolution of the PMC industry and the diversity of their activities require clarification about their rights and duties in armed conflicts and thus their status under international humanitarian law. Their activity is questioned in the framework of the law of international armed conflict when they act alongside international military intervention, authorized or not by the United Nations Security Council, and in situations of military occupation. Their status in the context of non-international armed conflict and under the law of non-international armed conflict is further complicated by the limited legal definition and framework of combatants and non-state armed groups in these contexts.

Status of PMCs under International Humanitarian Law

There are many disputed elements regarding the possible qualification of PMC employees as mercenaries, combatants, or civilians. Defining a coherent and binding legal framework under which they operate in practice, especially when they resort to force, remains a crucial challenge.

Apart from this important issue of qualification, the Montreux Document, put together by the Swiss Federal Department of Foreign Affairs and the International Committee of the Red Cross in 2008, proposes a framework for regulation and accountability of PMC activities at individual, corporate, or State levels. However, this document has no binding legal value until it is translated into national regulations that may vary from one country to another.

Mercenaries, Combatants, or Civilians?

It may be tempting to qualify PMC employees as mercenaries or combatants rather than civilians. However, none of this appears to fit the variety of their activities and the complexity of the criteria set forth by law for each category.

The mercenary category is not of great help to regulate PMC activities for two main reasons. To start with, there are very few elements regulating the use of force by mercenaries as the first aim of the mercenary conventions is not to regulate but to eliminate this practice through criminalization of mercenary activities. However, being a mercenary is not in itself a violation of the law of armed conflict, meaning that they remain bound to respect humanitarian law provisions on the use of armed force. The second main problem lies in the definition of mercenaries detailed in Article 47 of Additional Protocol I to the 1949 Geneva Conventions, which is similar to the mercenary conventions. This definition sets forth six cumulative conditions that a person must fulfill in order to be considered as a mercenary. These conditions are widely viewed as “unworkable” in practice. They require a case-by-case individual determination of status, which does account for the general status of PMC employees and their collective and multinational dimension.

The mercenary definition does not cover the full range of PMC activities since it refers only to recruitment in order to fight, without addressing the grey area of security missions where armed force is not used for fighting but for defense or security. For instance, being in charge of the security of a military commander may exceed normal security and self-defense activity and reach the point of direct participation in the hostilities. The notion of direct participation in the hostilities used by IHL to delineate civilians from combatants is therefore more relevant to describing and regulating PMC activities.

Under IHL, PMCs’ employees may qualify as combatants if they can be considered as incorporated in the armed forces (API Art. 43.1). Unfortunately, Additional Protocol I provides no guidance regarding formalities of incorporation. This is therefore left to national regulation, which usually takes a restrictive approach, refraining to consider PMC members as incorporated into their armed forces. The definition of combatant contained in the 1949 Third Geneva Convention is also very complicated to apply to PMC employees since it requires meeting criteria provided by Article 4.a.2 for members of militia or other voluntary corps belonging to a party to the conflict: (1) being commanded by a person responsible for subordinates; (2) having a fixed distinctive sign recognizable at a distance; (3) carrying arms openly; and (4) conducting operations in accordance with the law and customs of war. State practices in this field could be regarded as a deliberate choice to rely on the ambiguous status of groups participating in the conflict. It must be remembered that State practices contributing to confusion between “lawful” and “unlawful” combatants is in blatant contradiction to States’ duties under IHL.

In order to cover such grey areas, IHL has developed a special status in between the traditional civilian and combatant groups. This new category aims at covering persons who take part in hostilities without being members of the armed forces (API Arts. 45, 51.3). PMC employees can then at least be afforded this status. Therefore, they could become legitimate targets and be deprived of their status of civilians, but only during the time of their direct participation in hostilities. They could also be detained and prosecuted on the basis of such participation. However, it must be remembered that the concept of direct participation is strictly defined as acts of war, which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces (API Art. 51.3, commentary). It does not include persons and activities that are only supporting war effort. Furthermore, the concept of direct participation must always follow a restricted interpretation because of its derogation to the higher principle of civilian protection.

From the above consideration, the regulation vacuum of PMCs looks more like a choice sponsored by some States than like an inevitable legal vacuum.

CiviliansCombatantsMercenariesNon-state armed groups

The Montreux Document (2008)

From 2006 to 2008, the Swiss government and the International Committee of the Red Cross (ICRC) initiated a working process with governmental experts of seventeen countries among the most affected by or resorting to PMC activities: Afghanistan, Angola, Australia, Austria, Canada, China, France, Germany, Iraq, Poland, Sierra Leone, South Africa, Sweden, Switzerland, the United Kingdom, Ukraine, and the United States. Representatives from the civil society and from military and security companies were also consulted. The outcome of this process was the Montreux Document, published in September 2008 by the ICRC and the Swiss government. The intent of this document is to promote respect for international humanitarian law and human rights law in the area of private security. It is not legally binding as such; rather, it contains a compilation of good practices designed to help States take national measures to implement their obligations toward these new activities.

The Document attempts to address substantive legal concerns such as the status of PMC personnel under the 1949 Geneva Conventions, individual accountability for misconduct in different jurisdictions, and the authorities’ duty to oversee and screen the actions of PMCs for potential misconduct. It also highlights the responsibilities of three types of States: contracting States (countries that hire PMCs, also called “hiring States”), territorial States (countries on whose territory PMCs operate, also called “host States”), and home States (countries in which PMCs are based, also called “exporting States”).

It finally proposes good practices that could be implemented in order to regulate at country level the activities undertaken by PMCs, ranging from introducing transparent national licensing regimes to ensuring better supervision and accountability by providing training on IHL and developing internal procedures.

Good Practices

As regards good practices, the experts of the ICRC took advice from the report drafted by the experts of the Working Group on mercenaries entitled “International Basic Principles That Encourage Respect for Human Rights on the Part of [PMCs] in Their Activities.” According to the experts of the Working Group, an important way to regulate PMCs could be through the setting of standards at national levels, such as thresholds for permissible activity, systems of registration in the host States, and oversight mechanisms that could include prior approval by host States.

Following these conclusions, the Montreux Document proposes regulation to be endorsed by contracting States, territorial States, and home States. Contracting States should, inter alia, create internal procedures for the selection and contracting of PMCs as well as include in their contracts specific clauses on conduct requirements by the employee and the company. Territorial States and home States should create transparent licensing regimes and implement tools to monitor and ensure accountability for PMCs.

In line with the Montreux Document, an International Code of Conduct for Private Security Services Providers (ICoC) was developed through a multi-stakeholder process convened by the Swiss government. It aims to set private security industry principles and standards based on international human rights and humanitarian law, as well as to improve accountability of the industry by establishing an external independent oversight mechanism. As of April 2013, this Code of Conduct was signed by 602 companies. In so doing, signatory companies publicly commit to operate in accordance with the Code and to work with relevant stakeholders to establish this oversight mechanism and related standards by the middle of 2012. The drafting conference of the Charter for the Oversight Mechanism took place in Montreux in February 2013. The goal of the Charter is to ensure the effective implementation of the ICoC through the certification and monitoring of private security providers, as well as through the adoption of a complaint procedure. The formal launch and establishment of the oversight mechanism will take place in late 2013.

The United Nations Human Rights Council has also established in July 2005 a working group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination. In July 2010, this working group presented to the fifteenth session of the Human Rights Council in Geneva a draft “International Convention on the Regulation, Oversight, and Monitoring of Private Military and Security Companies.” The United Nations Human Rights Council also adopted on 1 October 2010 Resolution 15/26, which established an open-ended intergovernmental working group to complement this draft convention and consider the possibility of elaborating an international regulatory framework on the regulation, monitoring, and oversight of the activities of private military and security companies that could be incorporated into legislation of each participating State.

Responsibility and Accountability of PMCs

Although there are in theory different ways to trigger responsibility related to PMC activities, implementation of these options remains largely virtual and in need of effective national regulation and implementation.

The Responsibility of the Company as a Corporate Body

As corporate bodies, PMCs cannot be investigated by international or domestic criminal courts. Only individual criminal responsibility of their employees could be engaged in front of criminal courts. This leaves aside the issue of the responsibility of the entity as such, which, contrary to an army, does not obey military hierarchical orders leading to State responsibility but fulfils mere commercial contracts. They could only be held financially liable for damages deriving from their actions at country level. This ability is deliberately limited by the fact that PMCs are closed down and created under new names on a regular basis. It is also limited by the immunity they frequently enjoy through benefiting immunity agreements passed between contracting and territorial States or included in the Status of Force Agreements.

The Responsibility of PMC Contracting States

The possibility of triggering responsibility of a State with respect to the conduct of contractors it hires is today very complex in theory and almost impossible in practice. Indeed, in theory, State responsibility could arise if it is proven that the hiring State specifically ordered a conduct that gave rise to a violation of international humanitarian law or international human rights law. Such State responsibility is different from criminal responsibility incurred by commanders but can open rights for compensation. Therefore, unless incorporation of the PMC personnel into the armed forces of the hiring State can be proven, it seems impossible to trigger the responsibility of State in connection with crimes committed by private contractors. The practical possibility to trigger State responsibility for the conduct of private military companies would require the modification of the regulation and the relationships of power between contracting States, home States, and territorial States as well as effective alternatives and safeguards to existing immunity agreements at the international level.

The Position of the U.S. Government

As the main promoter and user of PMCs, the United States of America has updated its domestic regulation to fill a legal void. Since 2004 and under the Contractor Accountability Bill, PMCs based in the United States must obtain a license from the Defense Trade Control Office. Instruction no. 3020/41, titled Contractor Personnel Authorized to Accompany the U.S. Armed Force” and adopted on 3 October 2005, completes these regulations. This instruction has not settled the debate regarding the threshold required for qualification as direct participation in hostilities for PMC activities under the Geneva Conventions and Protocols. But it has at least clarified some elements regarding their liability and prosecution. In this Instruction, the U.S. government establishes a policy and assigns responsibilities to contractor personnel authorized to accompany U.S. armed forces, called “contractors deploying with the force” (CDF). However, this Instruction only applies to contractors employed by U.S. military forces and is not applicable to contractors employed by other U.S. governmental bodies or by U.S. reconstruction companies for security missions. The specific rights and responsibilities of PMC employees authorized to accompany U.S. armed forces have been clarified as follows:

  • Determination of status: If designated as such by the power they accompany, CDFs may support military operations as “civilians accompanying the force.” Nonetheless, if captured by an enemy State during an international armed conflict, they shall be entitled to prisoner-of-war status.
  • Use of force: CDFs will not be authorized to possess or carry personally owned firearms or ammunition, nor will they be allowed to be armed during contingency operations. But this principle suffers the following exception: contractors deploying with the force are authorized to be armed for individual self-defense on a case-by-case basis and only when military force protection and legitimate civil authority are deemed unavailable or insufficient.
  • Responsibilities before the law: Contractors deploying with the force must comply with international humanitarian law and U.S. laws, as well as applicable host nation and third-country national laws.
  • Individual liability: Unless immune from host nation jurisdiction by virtue of an international agreement or international law, CDFs can be subject to U.S. or host nation prosecution and civil liability.

Since 2007, the gap of their criminal liability has been partially filled in the United States by a revision of the unified Code of Military Justice approved by Congress. Pursuant to this revision, the contractors are under the jurisdiction of the United States of America Martial Court if they violate the rules of engagement or are involved in criminal activities.

Jurisprudence

Weakness of the regulation regarding criminal responsibility and international liability of PMCs is clearly reflected in case law.

Crimes allegedly committed by PMC personnel have not been brought by prosecutors before U.S. criminal courts. Victims of PMCs have tried with no success yet to find their way before U.S. civil courts on the basis of tort law in two main cases: Al Shimari v. CACI International and Saleh v. Titan .

However, up to now, no PMC employee has been charged with any crimes, while military personnel involved in the same cases have faced prosecution. After five years of litigation, Saleh v. Titan was dismissed in September 2009 in a 2–1 decision by the Court of Appeals for the District of Columbia. Legal defenses of private military contractors have used legal loopholes to avoid any accountability. Legal defenses such as the political question doctrine, derivative immunity, or the government contractor defense (i.e., arguing that contractors were operating under the control of the U.S. military and therefore cannot be held liable for their actions) were all claimed by the relevant PMCs. Though many of these legal defenses are inapplicable to private corporations, they have taken up the courts’ time and resources, leading these later to focus on any question but whether the plaintiffs were tortured.

On the military side, eleven soldiers involved alongside with PMC employees in the Abu Ghraib events were convicted of various charges relating to the incidents, all including dereliction of duty. Amongst them, Specialist Charles Graner was sentenced to ten years in prison, dishonorable discharge, and reduction in rank to private; as for Private First Class Lynndie England, she was sentenced to three years of confinement, forfeiture of all pay and allowances, reduction to private (E-1), and dishonorable discharge. In addition to the eleven convicted, three other soldiers were either cleared of charges or not charged. All in all, no one was convicted for crimes against detainees. Apart from direct perpetrators, only one army officer was disciplined for the maltreatment of prisoners at Abu Ghraib. Brigadier General Janis Karpinski, the former commanding officer at the prison, was demoted and relieved of command on 5 May 2005. It should be noticed that Karpinski was sentenced less than two weeks after the publication of the Green Report in which the army inspector general, Stanley E. Green, cleared four senior army officers, namely, General Ricardo Sanchez, General Walter Wojdakowski, General Barbara Fast, and Colonel Marc Warren, in the Abu Ghraib scandal. This illustrates the difficulty in establishing high-ranking commander responsibility.

Case law is also clear about the fact that PMC employees cannot claim civil compensation from the government for prejudice suffered during their mission. In Johnson v. United States (1987), the U.S. Supreme Court went beyond its former ruling in Feres (1950), holding that any civilian employee of the U.S. federal government was barred from suing the government for injuries occurred during course of duty. Nonetheless, this case law does not seem to apply to PMC employees, because according to the U.S. government, they are not civilian employees but civilian contractors. PMC employees are neither the employees of the U.S. Army nor the employees of the federal government, so they are not under their responsibility. According to the U.S. doctrine, PMC employees are only under the responsibility of their employer. This jurisprudence illustrates one of the advantages for government to resort to PMCs. Indeed, in case of death or disability, the government does not consider that these employees are entitled to the compensation due to soldiers who died or have been injured in the course of duty.

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