International Regulation of Private Military and Security Companies

For over 30 years, various UN experts have been studying PMSC’s activities. As an interim results of their work, a draft of a possible international convention was developed that, however, was not adopted by UN member states since it did not reflect the key aspects such as legitimacy of PMSC personnel taking part in armed conflicts and performing other state functions, the status of PMSC personnel under the norms of international humanitarian law, issues of international legal responsibility. Additionally, there were differences in using such important terms of a future convention as “inherently State functions,” “military services,” etc.

The engagement of PMSC personnel in armed conflicts raises concern for a number of reasons. First, PMSC personnel’s presence in areas of armed conflicts puts their own lives in immediate danger, yet, unlike combatants, they are not entitled to any legal guarantees. Second, most PMSC personnel are citizens of states that are not parties to a given armed conflict. Contracts signed with such companies frequently do not include provisions on the real nature of their work that involves participating in hostilities, which can subsequently make it more difficult to get medical assistance and compensation in cases of injury or death. Third, both companies and their personnel are frequently prone to abusing their positions, which entails various breaches of national and international law.

These circumstances make it necessary to introduce international legal regulation in this sphere to prevent transgressions by both companies and their personnel and ensure access to justice and legal remedies.

The UN Intergovernmental Working Group is again studying whether it is possible to create international legal regulations without predermining the nature of the final document.

UN delegations put forward three divergent opinions on further international legal regulation:

• international legal regulation should be based on the 2008 Montreux Document on pertinent international legal obligations and good practices for states and the 2010 International Code of Conduct for Private Security Service Providers;
• an international treaty need not be adopted at this stage; first, it is necessary first to study states’ practice and expound it as the guiding principles;
• an international treaty on the subject needs to be adopted since national legislations are fragmented, PMSC personnel violate human rights and, with few exceptions, are not held legally liable for that.

A study of the Montreux Document has demonstrated that Part One does not contain any innovations; its provisions largely stem from the existing sources of international law. This Document refers to Articles of states’ responsibility for internationally illegal actions. Part Two refers to states’ national legislation. Additionally, the Montreux Document is a recommendation and does not provide for mechanisms for overseeing PMSC’s activities, which may be seen as one of its substantial flaws.

Given the large scale of many human rights violations committed by PMSC personnel, and given the abuse committed by companies themselves against its personnel sent to areas of armed conflicts without appropriate legal guarantees, it appears necessary to adopt an international treaty on the issue.

Over the last decades, the market of private military and security companies has grown dramatically: PMSC personnel take direct part in armed conflicts, provide security services in other situations related to domestic strife and violence. Private companies are rapidly developing and go into new areas of activity, including cyberspace. PMSC’s activities in armed conflicts are often accompanied by violations of fundamental human rights, while in some cases the companies’ influence is so great a given state’s political and economic situation comes to depend on them.

The engagement of PMSC personnel in armed conflicts raises concern for a number of reasons. First, PMSC personnel’s presence in areas of armed conflicts puts their own lives in immediate danger, yet, unlike combatants, they are not entitled to any legal guarantees. Second, most PMSC personnel are citizens of states that are not parties to a given armed conflict. Contracts signed with such companies frequently do not include provisions on the real nature of their work that involves participating in hostilities, which can subsequently make it more difficult to get medical assistance and compensation in cases of injury or death. Third, both companies and their personnel are frequently prone to abusing their positions, which entails various breaches of national and international law.

These circumstances make it necessary to introduce international legal regulation in this sphere to prevent transgressions by both companies and their personnel and ensure access to justice and legal remedies.

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For over 10 years, the UN has been discussing the concept of legal regulations for PMSC, yet thus far states have failed to reach a consensus on even such basic elements as legitimacy of PMSC’s involvement in armed conflicts, the functions they can perform, and the status of PMSC personnel under the international humanitarian law. There also remains the question about the international legal responsibility of states and of overseeing PMSC’s activities as some functions performed by these companies have traditionally been performed by states.

Enrique Bernales Ballesteros, the UN Special Rapporteur on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, was the first to broach this problem in his report on South Africa’s Executive Outcomes recruiting former military members to fight in hostilities in Angola alongside UNITA insurgents (1994). His findings revealed that governments effectively allow mercenaries recruited through private companies to operate in their countries. He noted that mercenary recruitment is developing, transforming, and may frequently be hiding behind the façade of activities of today’s private companies that provide military aid and military professionals.

The special rapporteur’s investigations were continued by a UN Working Group of the same name that comprised five independent experts representing different regions of the world. In 2008 in Moscow, at regional consultations, Russia’s representatives proposed a draft convention regulating PMSC’s activities. The draft contained general provisions on applicable terminology and main regulation principles as well as provisions on states’ international legal responsibility for PMSC’s activities.

In 2010, at the 65^th session of the UN General Assembly, the chair of the Working Group presented a draft convention on PMSC, which was not adopted. Subsequently, the UN Human Rights Council established an Open-ended intergovernmental working group to consider the possibility of elaborating an international regulatory framework on the regulation, monitoring and oversight of the activities of PMSC; this framework would be based on the draft proposed by the Working Group. A total of 32 states (including Russia) voted in favor of establishing the Working Group, 12 states (the UK, the U.S., etc.) voted against, and three states abstained (Switzerland, etc.).

At the session’s end, a preliminary consensus was achieved on the following aspects of legal regulations: PMSC personnel are not mercenaries in accordance with the spirit of the international treaties currently in force; national legislations on regulating PMSC need to be taken into account, and the status of PMSC personnel needs to be defined under international humanitarian law; a list of functions states should not delegate is to be compiled; the possibility of regulating PMSC’s activities in difficult situations pertaining to engaging in cyber ops, to flying drones, and to using autonomous weapons systems need to be considered as well [1].

Discussion involved comments concerning the draft convention, in particular, the fact that the provisions on state responsibility for private persons’ conduct contravene the current international law; the draft convention entails obligations for non-state actors that cannot be parties to the convention; the draft convention distinguishes between “inherently State functions” that PMSC are prohibited from performing and other functions that states may delegate. Experts believe that arriving at a common interpretation of “inherently State functions” for the purposes of the convention is difficult since states have different legal approaches to this matter, etc.

Delegates were divided over possible legal regulation mechanisms with the following opinions being particularly popular:

• international legal regulation should be based on the 2008 Montreux Document on pertinent international legal obligations and good practices for states and the 2010 International Code of Conduct for Private Security Service Providers (the UK, in particular, adheres to this stance). Both documents were developed almost concurrently with a draft international convention; they were elaborated in Switzerland by a group of states not interested in adopting a legally binding document. These documents will be described in more detail below.
• it is too early to adopt an international treaty since it is necessary first to study states’ practice and translate it into the guiding principles that would distinguish between private security companies and private military companies (the U.S., for instance, proposes adopting an “action plan” based on experts’ reports and containing recommentations for states on regulating PMSC).
• an international treaty on the subject needs to be adopted to overcome the fragmentation of national legislations, PMSC personnel violate human rights and, with few exceptions, are not held legally liable for that.

Due to divergent discussions and parties adhering to radically different positions, the question of adopting an international treaty was suspended.

In 2017, the UN Human Rights Council established a new three-year Intergovernmental Working Group tasked with developing international legal mechanisms for regulating PMSC activities. Experts proposed a “discussion paper” that reflects states’ diverging stances on the applicable terms and concepts in the legal regulation of PMSC’s activities. The latest discussion of elements of international legal regulation expounded in the “discussion paper” took place in April 2021. The next session is expected to be held in May 2022.

In the course of the discussion, the Iranian delegation stressed the necessity to conclude an international treaty on the matter as PMSC are not limited in their activities, which has a negative impact on human rights.

Representatives of EU member states drew attention to the increasing role PMSC play in ensuring vessels’ maritime safety. At the same time, it was noted that the “discussion paper” lacks provisions on regulating that particular area of activities. The EU proposed involving the International Maritime Orgnization with a view to determining acceptable terms and rules that would not contravene the documents adopted in the international maritime law.

Representatives of the African continent said that geopolitical frictions create a favorable environment for the rise of the PMSC market, and this situation requires that a normative framework be created. Amid political and economic instability, while lacking sufficient material and technical supplies for peacemakers and national armed forces (for instance, in Mozambique, the Central African Republic, Mali), employing PMSC is one way for legitimate governments to settle conflicts. Private companies’ personnel take direct part in hostilities, provide humanitarian aid, technical assistance and extend consultations to the militaries, including those related to taking part in cyber ops.

Libya’s stance boils down not to regulating the process how states delegate security functions to private companies, but to discussing the legitimacy of involving private entities into hostilities.

The Russian delegation expressed its doubts concerning the legitimacy of PMSC taking direct part in military conflicts since they act independently without becoming part of a state’s military. Additionally, Russia’s delegation stressed that states involved in the discussion demonstrate an extensive spectrum of opinions concerning the status of PMSC personnel under international humanitarian law ranging from qualifying them as mercenaries to recognizing their legitimacy alongside combatants.

Some states actively support current documents that are non-binding in nature. In particular, the EU, the UK, and Switzerland believe that the Montreux Document and the International Code of Conduct ensure human rights protection and are sufficient to regulate companies’ activities. Support for adopting an international treaty came primarily from those states in whose territories PMSC operated. Representatives of Iran and Iraq believe it necessary to learn from the past mass breaches of human rights and international humanitarian law in Iraq, Afghanistan, and other states where PMSC personnel had been involved in various crimes.

What should be subjected to international legal regulation is not PMSC as such, but the functions they can perform, since even attempts to define which companies may be qualified as such have previously failed. The defition of “private military and security companies” proposed by the UN Working Group for the Convention classifies as such various companies, for instance those working in the mining industry. It blurs regulation and prevents effective law enforcement. Consequently, the concept proposed in April 2021 by the UN Working Group for regulating private military services appears to be the most promising.

PMSC activities unrelated to armed conflicts should be subject to separate regulations. Companies’ personnel are engaged to perform functions related to supporting migrants, protecting state borders, including using digital technologies, carrying out satellite surveillance, collecting biometrics and storing data obtained.

States sending PMSC to provide military-purpose survices should oversee their activities and also ensure the possibility of holding PMSC and their personnel liable for violations; states should put in place a mechanism for paying compensations in those instances when PMSC operate for their private benefit.

“Soft” law norms

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In order to regulate PMSC activities in armed conflicts, the government of Switzerland and the International Committee of the Red Cross held international consulations that resulted in adopting the Montreux Document in 2008 and the International Code of Conduct for Private Security Service Providers in 2010 (hereinafter the International Code). As of April 2022, seven states (Australia, Canada, Norway, Sweden, Switzerland, the UK, and the US), 104 PMSC, and 45 NGOs have acceded to the International Code. Unlike the Montreux Document, the International Code recognizes only security services understood as “guarding and protection of persons and objects, such as convoys, facilities, designated sites, property or other places (whether armed or unarmed).” The International Code does not contain provisions on personnel status under international humanitarian law and does not account for the specifics of PMSC’s activities (existence of an armed conflict).

When the Montreux Document was adopted, only 17 states signed it; now it is supported by 58 states. Besides states, the EU, the OSCE, and NATO also acceded to it. Russia did not sign the instrument as Russian experts believe that the Montreux Document has been developed for a special group of states that uses PMSC’s services and does not take other states’ interests into account. Additionally, Russian legislation does not provide for activities of such companies.

The preface to the Montreux Document states that it is not legally binding and “should not be construed as endorsing the use of PMSCs in any particular circumstance.” The document has two parts. Part One groups states’ international legal obligations into obligations before contracting states, territorial states, all other states (terms from the Montreux Document). Part Two contains good practices developed for complying with obligations listed in Part One; it includes a procedure for selecting PMSC, signing contracts, a procedure for issuing authorization to provide military and security services, oversight of compliance with the provisions. Good practices summarize current practices of states using companies’ services.

A special section in the Montreux Document focuses on the rights and responsibilities of PMSC and their personnel. At the same time, the document does not define the services PMSC personnel have the right to provide amid an armed conflict. Given divergent stances and contradictory practices used by states, the list of military/security services in the Montreux Document remains open. The preface to the Document only gives examples of services such companies may provide to states. There is no unequivocal prohibition on PMSC personnel’s taking direct part in hostilities.

An important regulation aspect is awarding compensations to persons who had suffered from the actions of PMSC. However, neither the Montreux Document, nor the International Code contains special provisions to that effect leaving it to the companies to independently investigate violations committed and to award financial compensations to the victims.

The flaws inherent in the Montreux Doucment and in the International Code also include gaps in regulating the procedures of states collecting and exchanging evidence on criminal and civil cases, extradition, injunctive relief and ways of holding legally responsible [2].

Adopted recommendations are important insomuch as they assist in further developing international legal regulations, but they do not allow to crack down on violations of human rights and international humanitarian law.

The Montreux Document was adopted 15 years ago, but it had no major effect on regulating PMSC activities. Its adoption was not intended to fill the gaps in the international legal regulation; the Montreux Document only confirmed states’ current international legal committments. States’ practices used toward PMSC were summarized. Since the Montreux Document’s provisions are not universal, other states (such as Russia and Pakistan) do not see themselves as becoming its signatories [3].

PMSC personnel’s status under international humanitarian law

One of the crucial questions is the status of PMSC personnel. The purpose of IHL norms is primarily to protect civilians, which is achieved through parties to an armed conflict complying with the duty to distinguish between combatants and civilians. Under the IHL, the status of a person is determined on a case-by-case basis.

If a state qualifies PMSC personnel as members of its military—or should they meet the criteria established by Article 1 of the 1907 Convention—they may be considered combatants entitled to the status of a prisoner of war. In other instances, PMSC personnel are civilians and they should not take direct part in hostilities. At the same time, they may be qualified as parties to an armed conflict sui generis.

Internationally, the problem of distinguishing between mercenaries and PMSC personnel remains unresolved. If PMSC activities are legitimate, services they have the right to perform need to be defined. In that connection, it appears important to note the remark that the Russian delegation made at the UN Human Rights Council: states need to assume the obligation of notifying other states of the numbers of PMSC engaged in armed conflicts. It should be done in order to rule out the possibility of creating hidden military reserves.

Today, PMSC personnel cannot unequivocally be classified as mercenaries since their activities only partially meet the criteria set forth in Article 47 of Additional Protocol I to the 1949 Geneva Conventions and in the international treaties on mercenaries. In some instances, PMSC personnel may enjoy the rights and obligations of combatants including, among other things, right to be prisoners of war. In Professor Ivan Kotlyarov’s opinion, PMSC may be counted among the military, despite the private nature of their activities, if they have been issued an authorization in compliance with national legislation providing for such an option [4]. If PMSC personnel offer consultations on security issues or provide material and technical support, then they are civilians.

An international armed conflict

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IHL norms vest certain parties to an armed conflict with the right to take direct part in hostilities. For instance, regular armed forces’ personnel have such a right. Under Para. 1 of Article 4А of the 1949 Geneva Convention (III), armed forces’ personnel are members of the armed forces of a party to the conflict [5]. If a state failed to notify of including militarized and police groups into its armed forces, they shall not be considered combatants. This requirement may apply to PMSC personnel taking part in an armed conflict.

International law also recognizes as combatants persons “who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves … if they respect the laws and customs of war” [6]. However, this does not apply to PMSC personnel since they take part in an armed conflict on a contractual basis.

Members of resistance movements also enjoy combatant status. The International Committee of the Red Cross (ICRC) interprets belonging to a party in a conflict as having actual connection between members of a resistance movement and a party to a conflict, and this connection should be substantial. These requirements are set forth in Article 1 of the 1907 Convention respecting the Laws and Customs of War on Land:

1. “To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war” [7].

If these criteria are met, some PMSC personnel may be considered combatants.

Under Para. 4 of Article 4А of the 1949 Gevena Convention (III), “persons who accompany the armed forces without actually being members thereof … provided that they have received authorization from the armed forces which they accompany” come under the category of civilians entitled to the prisoner of war status [8], which is confirmed by a special identity card issued by the state in question. Under the US Department of Defense Instruction on Contractor Personnel Authorized to Accompany the U.S. Armed Forces, PMSC personnel are civilians accompanying armed forces [9], however, they frequently take direct part in hostilities and abuse the rights granted to them.

A non-international armed conflict

In most cases, PMSC personnel become involved in non-international conflicts when hostilities take place between organized (non-governmental) armed groups and the military of a state. PMSC may take part alongside the governmental armed forces under a contract concluded with the government. Foreign PMSC may become involved in such a conflict only with the given state’s consent.

Nonetheless, amid a non-international armed conflicts, organized armed groups also hire PMSC that act alongside them [10]. The engagement of foreign PMSC alongside organized armed groups sent by a foreign state to take part in a non-international armed conflict can be seen as interfering in a state’s internal affairs (for instance, British and American PMSC’s involvement in armed conflicts in Libya in 2001 and in Syria in 2011).

AP I defines the status of governmental armed forces that can be equally applied to a non-international armed conflict. The status of a person as a member of an army is determined by the national legislation.

In order to determine whether a person is a member of an organized armed group, it is necessary to determine whether that person performs regular functions as part of that group’s activities. Members of an organized armed group are no longer considered civilians for the period when they remain members of that group due to performing combat functions. At the same time, if a person sporadically performs actions for an organized armed group, such a person may not be considered as its member as that implies a long-standing connection to the group [11].

According to a commentary to AP II, taking direct part in hostilities constitutes military action that in its character or nature is likely to do actual damage to the adversary’s personnel and materiel [12]. The term “direct part in hostilities” is not defined in any international legal documents. At the same time, understanding precisely what direct part in hostilities means appears to be crucial to defining the status of a participant in a non-international armed conflict.

Given the existing gap, the ICRC’s attempt to offer an interpretation of this term is welcome [13]. Commentary to AP II states that taking “direct part in hostilities” constitutes an act of war that, by its very nature, can have as its likely outcome causing damage to personnel and materiel of the enemy’s armed forces. The ruling of appeal by the International Criminal Tribunal on the Former Yugoslavia in the criminal case of Prosecutor v. Strugar contains similar conclusions [14].

Based on this premise, PMSC’s activities in training military personnel and developing military operations’ outline plans (for instance, America’s Cubic Application International, Kellog, Brown and Root, MPRI in Georgia during the 2008 Georgia-Ossetia conflict), in collecting intelligence not intended to carry out a specific military operation is not considered to be taking direct part in hostilities.

In its turn, however, supplying weapons for running a specific military operation does constitute taking direct part in hostilities (in 1998, Sandline International’s personnel supplied weapons to participants in armed conflicts in former Yugoslavia, Iraq, Bahrain, Qatar, Sierra Leone) [15]. When determining the issue of the status of PMSC personnel in a non-international armed conflict, it is necessary first to determine the functions they perform when taking part in hostilities, since not all functions are related to military action. For instance, most such companies provide materiel services. If PMSC personnel are taking part alongside an organized armed group, they are not entitled to the prisoner of war status if captured by the enemy.

The practice of some states to hire PMSC personnel to protect military facilities appears dubious [16]. If PMSC personnel are acting as civilians, the defensive side is responsible for using them to defend military facilities and assist in military operations. PMSC defending a military facility will be seen as an act of violence against the enemy.

For a long time, states engaged private companies whose personnel took direct part in hostilities. Governments of some African states hired PMSC to fight insurgents, and PMSC helped suppressed the resistance and preserve political regimes. Governments justified such practices referring to their own militaries lacking proper military training and by PMSC costing less than maintaining an army.

Granting PMSC’s personnel the right to take direct part in hostilities will depend on the guarantees of respect for rights and on the given state’s ability to ensure performance of functions without prejudice to security. Such activities should be subject to mandatory licensing and oversight by states.

Conclusions

For over 30 years, various UN experts have been studying PMSC’s activities. As an interim results of their work, a draft of a possible international convention was developed that, however, was not adopted by UN member states since it did not reflect the key aspects such as legitimacy of PMSC personnel taking part in armed conflicts and performing other state functions, the status of PMSC personnel under the norms of international humanitarian law, issues of international legal responsibility. Additionally, there were differences in using such important terms of a future convention as “inherently State functions,” “military services,” etc.

The UN Intergovernmental Working Group is again studying whether it is possible to create international legal regulations without predermining the nature of the final document.

UN delegations put forward three divergent opinions on further international legal regulation:

• international legal regulation should be based on the 2008 Montreux Document on pertinent international legal obligations and good practices for states and the 2010 International Code of Conduct for Private Security Service Providers;
• an international treaty need not be adopted at this stage; first, it is necessary first to study states’ practice and expound it as the guiding principles;
• an international treaty on the subject needs to be adopted since national legislations are fragmented, PMSC personnel violate human rights and, with few exceptions, are not held legally liable for that.

A study of the Montreux Document has demonstrated that Part One does not contain any innovations; its provisions largely stem from the existing sources of international law. This Document refers to Articles of states’ responsibility for internationally illegal actions. Part Two refers to states’ national legislation. Additionally, the Montreux Document is a recommendation and does not provide for mechanisms for overseeing PMSC’s activities, which may be seen as one of its substantial flaws.

Given the large scale of many human rights violations committed by PMSC personnel, and given the abuse committed by companies themselves against its personnel sent to areas of armed conflicts without appropriate legal guarantees, it appears necessary to adopt an international treaty on the issue.

1. Skuratova A.Yu., Korolkova E.E. “Lethal Autonomous Weapons Systems: Problems in International Legal Regulation” (in Russian) // Rossiiskii iuridicheskii zhurnal (Russian Legal Journal). 2019. No. 1 (124). P. 22–30.

2. Cockayne J. “Private military and security companies” / Claphm A., Gaeta P. (ed.) // The Oxford Handbook of International Law in Armed Conflict. Oxford: Oxford University Press. 2014. – 769 p.

3. Nebolsina M. “Private Military and Security Companies” // Russia in Global Affairs. 2019 (17). PP. 76–106.

4. Kotlyarov I.I. International Legal Regulation of Armed Conflicts (Principal Theoretical Problems and Practice). Moscow: Iurlitinform, 2013. 176 p.

5. 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War.

6. Article 10, 1874 Brussels Declaration; Aritcle 2, 1907 Hague Convention; Para. 6, Aricle 4А, 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War.

7. 1907 Convention respecting the Laws and Customs of War on Land.

8. 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War.

9. US Department of Defense Instruction on Contractor Personnel Authorized to Accompany the U.S. Armed Forces 3020.41 of October 03, 2005.

10. Daza F. “Delimitation and Presence of PMSCs: Impact on Human Rights” / Torroja H. (ed.) // Public International Law and Human Rights Violations by Private Military and Security Companies. Cham: Springer International Publishing AG. – 2017. – 158 p.

11. Rusinova V.N. “Classification of Persons in International Armed Conflicts: In Search of a Balanced Approach” (in Russian) // Gosudarstvo i pravo (State and Law). 2012 (3). P. 61–69.

12. Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 seeking to protect victims of non-internatioanl armed conflicts (in Russian). K. Piitu et al., transl. 2^nd ed. Moscow: International Committee of the Red Cross. 2000. P. 303.

13. Interpretive guidance on the notion of direct participation in hostilities undеr international humanitarian lаw: International Committee of the Red Cross. – Geneva. – 2009.

14. Prosecutor v. Pavle Strugar, IT-01-42-AR72 (Decision on Interlocutory Appeal). November 22, 2002.

15. Mathieu F., Rearden N. “Corporate Mercenaries: The threat of private military and security companies” // Review of African Political Economy. 2007. Vol. 34. No. 114. PP. 744-755.

16. Crawford E., Pert A. International Humanitarian Law. Cambridge: Cambridge University Press, 2015. 686 p.