PRIVATE MILITARY AND SECURITY COMPANIES UNDER

INTERNATIONAL HUMANITARIAN LAW: A VACUUM?

Private military and security companies1 continue to be an enigma in the realm of

international law and international humanitarian law (IHL) specifically. This arises due to
their perception and potential classification as mercenaries; an illegal class warranting no
protection under international law. However, perceptions of these corporate bodies have
changed within the international community in the recent past. This is best exemplified by
variations in state practice, increased utilization of PMSC services and increased debate on
the same within international circles. The question then arises as to whether the place of
PMSCs in international humanitarian law, remains justified as being illegal, or if these same
principles demand reaffirmation and/or revision in light of such developments.

Being a contemporary challenging issue under IHL, there is no settled definition of

PMSCs. The most reliable thus far arises from the Montreux Document2, a non-binding
instrument reaffirming the international legal principles applicable to PMSC operation. It
defines PMSCs as “private business entities that provide military and/or security services,
irrespective of how they describe themselves”.3

Their existence and application has exponentially increased in the post-Cold War era,
arising from the rapid demobilization of armed forces and disposal of weaponry by global
powers. Such former military personnel, seeking employment, found a ready market for their
services in the global upsurge of conflicts in the non-interventionist policy of global powers.
For example, the Angolan Civil War gave rise to the extensive involvement of South African
company, Executive Outcomes. Dyncorp Limited has also had extensive operation in
Colombia training civil police force and in Afghanistan providing support to the military
forces there. Similarly and infamously the company formerly known as Blackwater (now
known as Academi), has been involved extensively in the Gulf War as a well as Iraq and
Afghanistan.4

There begs the question, however, as to what is the status of such companies and their
personnel under IHL. As to their legality, the Geneva Conventions and Additional Protocols
thereto outlaw use of mercenaries and offer them no protection under IHL. 5 This is also the

1
Also known as private military companies, private security contractors, this article shall not seek to define this
diversification and shall collectively refer to them as private military and security companies (hereinafter
‘PMSCs’).
2
Montreux Document on Pertinent International Legal Obligations and Good Practices for States related
to Operations of Private Military and Security Companies during Armed Conflict, UN doc A/63/467
(2008) at 4-26.
3
Ibid., p. 6.
4
A relevant summary of such involvements and alleged violations of IHL and human rights law can be found in
the appendices to “Private security contractors at war: Ending the culture of impunity” Human Rights First,
2008, Accessible at http://www.humanrightsfirst.org/wpcontent/uploads/pdf/08115-usls-psc-final.pdf (Last
accessed 7 May 2014)
5
Article 47, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims in International Armed Conflicts, 1977 (Additional Protocol 1 or AP1)

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case with the United Nations International Convention against Recruitment, Use, Financing
and Training of Mercenaries.6 The strict provisions of Article 47 of AP1 however, must each
be met, and thus, PMSCs in most cases cannot expressly be classified as mercenaries under
IHL.

As to their status under international humanitarian law, this must be determined on a

case by case basis. If civilians, they receive special protection under Article 51 of AP1 and
the Fourth Geneva Convention which subsists unless and for such time as they may take a
direct part in hostilities.7 Such direct participation renders them combatants, accorded the
protection and bestowed the responsibilities under the Geneva Conventions. They will
acquire prisoner of war status if captured and shall be liable for offences under IHL.

However, the existing definitive conundrum on “direct participation” takes a new

dynamic with regard to PMSCs. The International Committee of the Red Cross has published
an Interpretive Guidance8 to this, giving a tripartite elemental constitution of direct
participation causing a continuous combat function: threshold of harm, direct causation and
belligerent nexus.9 Given the unique tasks performed by PMSCs10 there remains debate as to
which of these constitute direct participation under the above, non-binding requirements.

The international community has however taken initiative to fill what seemed like a
normative lacuna applicable to PMSCs by restating of well-established rules of international
law applicable to their operation.11 This resulted in the Montreux Document, which continues
to gain increasing support worldwide,12 in a bid to create a uniform normative system
applicable to unique aspects of PMSC operation. It made progress in outlining specific
guidelines applicable to ‘contracting states’ which procure the PMSC’s services, ‘territorial
States’ in whose territory the PMSCs operate, and ‘home states’ in which the PMSC is
registered, incorporated or where its principal place of management is.13

These obligations generally include ensuring that, first, PMSCs and their personnel are
aware and trained of their obligations; second, they do not encourage or assist in violation of
IHL by PMSCs; and, lastly they take measures to suppress such violations possibly through
administrative disciplinary or judicial sanctions. All these States are advised to enact relevant
legislation, possibly to control PMSC operation within the ambit of IHL. For example, there

6
GA/Res/44/34 (1989).
7
Additional Protocol 1, Article 51(3).
8
Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian
Law, ICRC, 2009; it makes specific analysis and recommendations on private contractors and civilian
employees of parties to the hostilities, akin to that under Article 51(3) of AP1.
9
Ibid., pp. 46-64.
10
These may include gathering military intelligence, operating weapons systems, protecting military bases from
attack and transporting supplies.
11
Chair’s Conclusions, Montreux +5 Conference, Geneva, 13 December 2013.
12
Ibid., As of 13 December 2013, 49 States and 3 international organizations had expressed support for the
Document.
13
Montreux Document, note 2 above, p. 6.

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are specific tasks under the Geneva Conventions which expressly must be conducted by none
other than military personnel.14

Such laws are the first step in creating regulation of PMSCs, prior to the consolidation
of legal principles into a binding instrument. However, soft law continues to develop
significantly, and has thus been incorporated, expressly or impliedly into some of these
municipal laws in a variety of States. Primarily, the International Code of Conduct15
(hereinafter “ICoC” or “the Code”), an attempt at self-regulation by industry players has
received widespread support among companies and States as well. Significantly, the Swiss
Federal Act on Private Security Services Provided Abroad16 provides that PMSCs based in or
contracted by Switzerland are obliged to be signatories to the Code.

This is essential because the ICoC provides a concise body of rules and human rights
standards, bearing significant recognition among the major industry players and partners who
are signatories to it. Though not binding, its enforcement can theoretically be ensured through
incorporation of its provisions as contract conditions, the breach of which would
fundamentally warrant rescission of the contract and subsequent liability proceedings.

It must also be appreciated that these guiding documents have elaborated existing
principles that apply to criminal and civil liability of PMSCs and their personnel for breaches
of IHL. The Montreux Document, for example provides for liability of government officials
or director/managers of PMSCs for crimes under international law committed by personnel
under their effective authority and control.17 It must be noted that PMSC employees will be
subject to the jurisdiction of their home State or the territorial State. PMSCs, as legal persons,
will be criminally liable only where jurisdictions provide for corporate criminal liability. 18
Corporate civil liability is a more developed area of law, especially with regard to decisions
before the Nuremberg Military Trials. Of key significance is the Krupp Trial19 whereby the
Tribunal expressly referred to acts of the company in saying:

“We conclude that it has been clearly established…that…illegal acts of spoliation

and plunder were committed by, and on behalf of, the Krupp firm…and…were
exploited and plundered for the German war effort.”(Emphasis added)

14
Article 39, GC3: requires that every prisoner of war camp shall be put under the immediate authority of a
responsible commissioned officer belonging to the armed forces of the detaining power. Article 99 GC4:
stipulates that every place of internment shall be put under the authority of a responsible officer, chosen from
the regular armed forces or the regular civil administration of the detaining power.
15
See: International Code of Conduct for Private Security Providers at www.icoc-psp.org (Last accessed 7 May
2014).
16
Adopted in 2013
17
Montreux Document, note 2 above, p. 11.
18
This is already applicable in United States, Finland, Estonia, Lithuania, Australia, Canada, France, Poland
and the Netherlands.
19
Trial of Alfried Felix Alwyn Krupp von Bohlen und Halbach and Eleven Others, US Military Tribunal,
Nuremberg, 1 August 1947–29 July 1948, Law Reports of the Trials of War Criminals, Vol. X, pp. 69–181

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 This judgement among others20 reaffirmed the need for reparation for such crimes as
enshrined in international law. With regard to recent legal developments, there have also been
agreed principles to apply this responsibility to non-state entities.21

From the above, it is reasonably evident that international law and international
humanitarian law specifically is of extensive application in the regulation of the activities of
PMSCs and their personnel. The perceived legal ‘vacuum’ is significantly, but not
sufficiently, filled by existing legal norms applicable to this contemporary situation. With
time, the potential agreement of an internationally legally binding instrument may allow the
gaps still unfilled by soft law to create an efficient regulatory and enforcement mechanism to
ensure the essential principles of humanity, distinction, proportionality and military necessity.

Works Cited
Montreux Document on Pertinent International Legal Obligations and Good Practices for States
Related to Operations of Private Military and Security Companies During Armed Conflict. (2008).
United Nations.

Private Security Contractors at War: Ending the Culture of Impunity. (2008). Retrieved May 7, 2014,
from Human Rights First: http://www.humanrightsfirst.org/wpcontent/uploads/pdf/08115-usls-psc-
final.pdf

International Code of Conduct. (2010). Retrieved May 7, 2014, from International Code of Conduct
for Private Security Providers: http://www.icoc-psp.org

Cassese, A. (2011). International Criminal Law (2nd ed.). New York: Oxford University Press.

Gray, C. (2008). International Law and the Use of Force (3rd ed.). New York: Oxford University
Press.

International Commission of Jurists. (2012). Second Session of the Open-ended Intergovernmental

Working Group (IGWG) to consider the possibility of an international regulatory framework in the
regulation, monitoring and oversight of the activities of private military and security companies.
Geneva: United Nations Human Rights Council.

International Committee of the Red Cross. (2013). Chair's Conclusions. Montreux +5 Conference.
Geneva: Swiss Federal Department of Foreign Affairs.

Mongelard, E. (2006). Corporate Civil Liability for Violation of International Humanitarian Law.
International Review of the Red Cross, 88(863), 665-691.

20
See also: Trial of Friedrich Flick and Five Others, US Military Tribunal, Nuremberg, 20 April–22 December
1947, Law Reports of the Trials of War Criminals, Vol. IX, pp. 1–68; The I.G. Farben Trial, Trial of Carl
Krauch and Twenty-two Others, US Military Tribunal, Nuremberg, 14 August 1947–29 July 1948, Law Reports
of the Trials of War Criminals, Vol. X, pp. 1–68
21
See Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International Humanitarian
Law, A/RES/60/147; also Article 75 of the Rome Statute of the ICC states: “Article 75 states that ‘‘[t]he Court
may make an order directly against a convicted person specifying appropriate reparations to, or in respect of,
victims”

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