On Private War
Where do PMSCs work?
The growth of these non-state armed actors has evolved greatly. Now, private military and security companies support and even replace soldiers and/or public security officers in a number of situations that include armed conflict, prolonged military occupation, peacekeeping, maritime security missions, stabilization and reconstruction in post-conflict institutional building, emergency crisis and other unstable areas, especially areas where extractive (mining, oil, etc) companies operate.
The United States of America, the United Kingdom, Israel or South Africa are home states of a huge PMSC industry which export military and security services around the world, especially in armed conflict situations and other unstable contexts where these services are required. Afghanistan, Iraq, the Occupied Palestinian Territories, Colombia, Nigeria, are only a few examples of territorial states where these private contractors operate. The complexities of these areas prevents effective monitoring, public scrutiny, accountability and remedy for victims of PMSCs.
Are their activities regulated?
The rules of PMSCs are dispersed in several regulatory instruments (laws, military orders, decrees, ministry guidelines, tenders for bids, etc.); some remain classified (such as rules of engagement in the Occupied Palestinian Territory) or are subject to constant variation (such as criteria for licensing in Iraq)- all of which give rise to legal uncertainty. States lack a comprehensive legislation using the force of law and covering all the relevant “elements regulating PMSC activity”.
In contexts of armed conflict, PMSCs usually operate without a proper license by the national authorities. In fact, states lack a proper regulation to control PMSCs and their activities. In Afghanistan, the interval of almost seven years between the arrival of the companies to the country in 2001 and the first PMSC regulation by the government favoured the uncontrolled development of the industry and caused unforeseen consequences: lack of transparency, oversight and negative impact on human rights.
How we can make them accountable for their actions?
Considering the transnational nature of PMSCs and the challenges to the application of domestic laws for international PMSCs operating in foreign states, national legislation alone is insufficient to adequately cover and control the effects of the industry worldwide. In this regard, a comprehensive regulatory approach is needed which comprises both national and international legislation on PMSC activities.
Why Private War?
In the last two decades, states have relied on private contractors to support military operations in conflict situations. Without the necessary democratic scrutiny and public debate, Private Military and Security Companies (PMSCs) have provided services that traditionally were performed by national armies and public authorities –such as interrogation of detainees, protection of military assets, training of local armed forces, collection of intelligence and the performance of defensive and even offensive military activities-.
Employment of PMSCs on conflict, post-conflict and non-conflict situations has expanded massively. Internationally, belligerent states have employed, in some recent conflicts, more private military and security contractors than members of their regular armed forces. At a domestic level, in some countries, private security personnel is already much larger than the state police.
With the 2003 invasion and occupation of Iraq, the privatisation phenomenon acquired unprecedented proportions turning the provision of security-related services into the most prosperous post-war business and consolidating the PMSC industry as a key player for future international intervention.
What are PMSCs and what are not?
The UN Working Group on the Use of Mercenaries defines a private security and military company as “a corporate entity which provides, on a compensatory basis, military and/or security services by physical persons and/or legal entities”. Yet, PMSCs should not be considered as ordinary commercial entities or commodities. On the contrary, they are very sensitive entities authorised to use potentially lethal force in different operational contexts and financed by multiple clients; states, companies and non-governmental organisations.
Nevertheless, the status of these private and civilian security groups, as they operate armed security services in contexts of conflict and occupation, is not clear. PMSC personnel do not fall under the definition of mercenaries but do not fit easily into the category of civilians either.
Their role is far beyond initial Private Security Companies (PSCs) which only perform security services. Instead, PMSCs perform a wide variety of activities including: combat and military operations, military assistance, operational support, intelligence, logistics support for military purposes, quasi-police tasks and border control, security and protection of individuals and facilities, police advice and training, demining, humanitarian aid, weapons disposal and destruction, facility and infrastructural build-up for military purposes, and humanitarian aid.
Who contract their services?
The PMSC industry is multinational in its human composition as it employs individuals, usually ex-military or ex-militia, of multiple nationalities. It is also transnational in nature and moves comfortably in the broader context of multinational companies. Indeed, the private security industry has also grown and consolidated thanks to its contracting by clients other than states, such as private corporations, inter-governmental organizations and non-governmental entities.
The increasing state reliance on PMSCs, as well as transnational corporations, non-governmental organizations and international organizations such as the UN and NATO, has questioned this international phenomenon. A significant use of PMSCs by private corporations such as oil, gas, construction and mining companies is observed.
It is important to mention that these companies followed the rule of engagement of protecting the clientwhatever the cost, legitimising without further control the use of lethal force against the local population when the mission so required.
Why do they have a negative impact on Human Rights?
This trend towards privatisation of military and security operations has grown to such proportions that it threatens the sovereignty of states and their ability to safeguard fundamental human rights. Making security a commodity for sale undermines the responsibility of states to ensure the safety of their citizens. At the same time, citizens find their national private military and security activities shielded from public investigation and scrutiny. Without transparency and regulation of PMSCs, societies will experience erosion of the rule of law and the undermining of democratic institutions.
PMSCs have had a dramatic impact on human rights. Legal and factual studies on the massive use of PMSCs in Iraq and Afghanistan have documented human rights abuses committed by private contractors. These violations include torture, indiscriminate killing of civilians, and the breaches of contractors’ labour rights. In practice, despite these cases have been well documented, neither the companies nor the managers or employees have been held accountable or punished. As a result, victims have not obtained due reparation.
The lack of appropriate legal consequences for human rights violations involving private contractors and effective remedies for victims has led to claims of lack of accountability of PMSCs and their personnel.