HOSTILITIES 1 5.1 Introduction
6.1 Introduction
CHAPTER 6
THE COMBATANT STATUS OF PRIVATE MILITARY AND SECURITY CONTRACTORS IN INTERNATIONAL ARMED CONFLICTS, IN LIGHT OF
THE INTERNATIONAL HUMANITARIAN LAW NOTION OF DIRECT PARTICIPATION IN HOSTILITIES1
humanitarian law (IHL): the private military and security contractor (PMSC) 5. Subsequent, general military downsizing has presented private security companies with a vast pool of ex-military personnel6, and a burgeoning market for their services. Not suprisingly, names like DynCorp International LLC, Triple Canopy Inc, EOD Technologies Inc, Aegis Defence Services Limited, ArmorGroup International plc, and Blackwater Security, feature prominently in the international armed conflicts which followed (notably in Iraq and Afghanistan)7. Today there are an estimated8 3109 registered private military and security companies, operational in ‘over fifty countries’10 ‘from Albania to Zambia’11, with ‘access to an international, mobile, and largely anonymous pool of labor’12. In 2010, the industry itself was estimated to be worth between 200 and 300 billion U.S. dollars annually13.
Industry Cornell University Press: New York at 277). At the end of the Iraqi conflict, contractors working for the U.S. government and military outnumbered U.S. troops in Iraq (Amnesty International ‘Private Military Contractors: Questions and Answers’, available at http://www.amnestyusa.org/business/pmc/HousePartyToolKit.pdf (accessed 19 July 2012);
Ellen L Frye ‘Private Military Firms in the New World Order: How Redefining “Mercenary” can Tame the “Dogs of War”’ (2005) May Fordham Law Review 2607 at 2610). Moreover, ‘there are an estimated 10,000 security contractors in Afghanistan, including local nationals, third- party nationals, and Afghan security companies’ (Erica Gaston ‘Mercenarism 2.0? The Rise of the Modern Private Security Industry and its Implications for International Humanitarian Law Enforcement’ (2008) 49(1) Harvard International Law Journal 221 at 223).
5 Won Kidane ‘The Status of Private Military Contractors Under International Humanitarian Law’ (2010) 38(3) Denver Journal of International Law and Policy 361 at 364; Singer
‘Humanitarian Principles, Private Military Agents: Some Implications of the Privatised Military Industry for the Humanitarian Community’ at 3.
6 Blackwater (founded by a U.S. Navy SEAL) is staffed by ‘former military, intelligence, and law enforcement personnel’; Triple Canopy Inc (founded by a member of the U.S. Special Forces’ Delta Force) is ‘comprised of former operators from tier-one special operations units’;
aand Aegis Defence Services Limited was founded by a retired British lieutenant-colonel (Jennifer K Elsea, Moshe Schwartz and Kennon H. Nakamura ‘Private Security Contractors in Iraq: Background, Legal Status, and Other Issues’ (2008) available at
http://www.fas.org/sgp/crs/natsec/RL32419.pdf (accessed 10 July 2012) at 8-10).
7 Renée De Nevers ‘Private Security Companies and the Laws of War’ (2009) 40 Security Dialogue available at http://sdi.sagepub.com/content/40/2/169 (accessed 10 July 2012) at 175; Elsea et al ‘Private Security Contractors in Iraq: Background, Legal Status, and Other Issues’ at 9-11.
8 ‘There is no exhaustive list of companies operating in the international private security sector, and a notorious lack of verifiable data on the magnitude of the industry’ (Caroline Holmqvist ‘The Private Security Industry, States and Lack of an International Response’
Prepared for the Seminar on Transnational and Non-State Armed Groups convened by the Program on Humanitarian Policy and Conflict Research (HPCR) at Harvard University, in cooperation with the Graduate Institute of International Studies (Geneva) and the Radcliffe Institute for Advanced Study (Harvard University, Cambridge) (9-10 March 2007) at 7).
9 De Nevers ‘Private Security Companies and the Laws of War’ at 175.
10 Singer ‘Humanitarian Principles, Private Military Agents: Some Implications of the Privatised Military Industry for the Humanitarian Community’ at 3.
11 Kidane ‘The Status of Private Military Contractors Under International Humanitarian Law’ at 364.
12 Holmqvist ‘The Private Security Industry, States and Lack of an International Response’ at 7; De Nevers ‘Private Security Companies and the Laws of War’ at 175.
13 Holmqvist ‘The Private Security Industry, States and Lack of an International Response’ at 7; Singer ‘Humanitarian Principles, Private Military Agents: Some Implications of the
Privatised Military Industry for the Humanitarian Community’ at 3; Paul Keilthy (2004) ‘Private Security Firms in War Zones Worry NGOs’ available at
http://reliefweb.int/report/afghanistan/private-security-firms-war-zones-worry-ngos (accessed 25 September 2012).
This boom in the private security industry has been met with mixed responses. While the early PMSCs like Sandline International and Executive Outcomes openly advertised their combative activities, ‘today’s PMSC downplay a willingness to provide direct combat support’14. Some tout
themselves as the world’s future peacekeeper15. While others brand PMSCs as ‘mercenaries’. In line with the two international anti-mercenary treaties16, some States have even introduced measures to ban or regulate the activities of PMSCs17. The official U.N. position, expressed through the U.N. Working Group on the Use of Mercenaries, is that ‘many private military and security companies are operating in a “grey zone” which is not defined at all, or at the least not clearly defined by international legal norms’18.
Whatever individual States conclude regarding the legality of PMSCs, one thing is clear: PMSCs ‘are becoming more mainstream and acceptable’19. In Iraq, even the Chief of the Coalition Provisional Authority (Paul Bremmer) and visiting dignitaries, were seldom without a Blackwater Security escort20, and in the Green Zone in Baghdad, it was not uncommon for Blackwater personnel to be involved in ‘prolonged gun battles … defending the U.S.
14 Aril McDonald ‘Private Military Contractors’ (no date) Transnational and Non-State Armed Groups Project available at http://www.tagsproject.org (accessed 14 July 2012) at 2.
15 Damian Lilly ‘The Privatization of Peacekeeping: Prospects and Realities in Peace Keeping Evolution or Extinction?’ (2000) 3 UNIDAR available at http://www.unidir.org/bdd/fiche-
periodique.php?ref_periodique=1020-7287-2000-3-en (accessed 19 July 2012); Lindsey Cameron ‘Private Military Companies: Their Status Under International Humanitarian Law and its Impact on their Regulation’ (2006) 88:863 International Review of the Red Cross 573.
16 1989 International Convention Against the Recruitment, Use, Financing and Training of Mercenaries (1989) 2163 U.N. Treaty Series 75 (A/RES/44/34) (‘U.N. Mercenary
Convention’) which entered into force on 20 October 2001 - by July 2012 only 32 States had become party to the convention (Katherine Fallah ‘Corporate Actors: The Legal Status of Mercenaries in Armed Conflict’ (2006) 88:863 International Review of the Red Cross 599 at 603). 1977 Convention for the Elimination of Mercenarism in Africa (XXXIX) Annex II Rev. 3 OAU CM/817 (‘O.A.U. Mercenaries Convention’) available at http://www.africa-
union.org/official_documents/Treaties_%20Conventions_%20Protocols/Convention_on_Merc enaries.pdf (accessed 14 July 2012).
17 The U.S. and South Africa are amongst the biggest producers of PMSCs, ‘so it is
perhaps not surprising that they have come the furthest in regulating the industry’ (Holmqvist
‘The Private Security Industry, States and Lack of an International Response’ at 50). To this end, South Africa has passed the Regulation of Foreign Military Assistance Act 15 of 1998, and proposed the Prohibition of Mercenary Activities and Regulation of Certain Activities in the Country of Armed Conflict Act 27 of 2006 (for more on this see Shannon Bosch and Marelie Maritz ‘South African Private Security Contractors Active in armed Conflicts:
Citizenship, Prosecution and the Right to Work’ (2011) 14:7 Potchefstroom Electronic Review 71. 18 Marina Mancini, Faustin Z Ntoubandi and Thilo Marauhm (2011) ‘Old Concepts and New Challenges: Are Private Contractors the Mercenaries of the Twenty-first Century?’ in Francesco Francioni and Natalino Ronzotti (eds) War By Contract: Human Rights, Humanitarian Law and Private Contractors Oxford University Press: Oxford at 340.
19 Christopher H Lytton ‘Blood for Hire: How the War in Iraq has Reinvented the World’s Second Oldest Profession’ (2006) Summer Oregon Review of International Law at 307. ‘The United Nations (U.N.) is beginning to realise this fact and in its most recent guidance they have begun addressing “other security actors” in recent U.N. guidelines’ (Colonel Cliff D Crofford, Jr ‘Private Security Contractors on the Battlefield’ (15 March 2006) USAWC Strategy Research Project available at
http://www.strategicstudiesinstitute.army.mil/pdffiles/ksil320.pdf (accessed 10 July 2012) at 8). 20 Frye ‘Private Military Firms in the New World Order: How Redefining “Mercenary” can Tame the “Dogs of War”’ at 2611.
government headquarters’21. In 2004, graphic images of the bodies of a former Army Ranger and a former Navy SEAL, now Blackwater Security Contractors, being ‘mutilated, burned, dragged through the streets, and hung from a bridge over the Euphrates River’ - made news headlines around the world22.
It is not only actual States who are making greater use of PMSCs -
‘private corporations, international and regional inter-governmental organisations, as well as non-governmental organisations’23 are also increasingly needing to employ PMSCs, in order to operate in situations of armed conflict24. These private contractors have reportedly provided anything from direct frontline military assistance, to security, advice and training, logistical support, maintenance, interrogation, guarding and intelligence services25.
While some texts draw a distinction between ‘private military
companies (which may replace or back-up an army or armed group)26, and private security companies (which provide services to protect businesses and property from criminal activity)’27, I have adopted the blanket term ‘private military and/or security contractors’ (PMSCs) to refer to individual contractors who provide either military services28 or security services29. I have chosen to
21 Elsea et al ‘Private Security Contractors in Iraq: Background, Legal Status, and Other Issues’ at 11; Frye ‘Private Military Firms in the New World Order: How Redefining
“Mercenary” can Tame the “Dogs of War”’ at 2611.
22 Frye ‘Private Military Firms in the New World Order: How Redefining “Mercenary” can Tame the “Dogs of War”’ at 2607. These Blackwater personnel were ambushed ‘while escorting trucks carrying supplies for a private company that provided food services to U.S.
military dining facilities in Iraq’ (Elsea et al ‘Private Security Contractors in Iraq: Background, Legal Status, and Other Issues’ at 11).
23 That said, in order to secure their funding, they often prefer ‘to work with low-profile security providers like Olive, Hart, Armorgoup-DSL’ (Singer ‘Humanitarian Principles, Private Military Agents: Some Implications of the Privatised Military Industry for the Humanitarian Community’
at 3).
24 Emanuela-Chiara Gillard ‘Business Goes to War: Private Military/Security Companies and International Humanitarian Law’ 2006 88:863 International Review of the Red Cross 525 at 525.
25 EOD Technologies Inc, claims to provide ‘munitions response, security services, and critical mission support. Its security services include armed security, guard force, reaction force training, surveillance and surveillance detection, counter IED response services, and security consulting’ (Kidane ‘The Status of Private Military Contractors Under International Humanitarian Law’ at 364). ArmorGroup International plc provides ‘protective security; [a] risk management consultancy; security training; development, humanitarian, and construction support; weapons reduction and mine action services … to more than 5,000 security professionals, government officials, and corporate executives and their families worldwide’
(Elsea et al ‘Private Security Contractors in Iraq: Background, Legal Status, and Other Issues’
at 11). DynCorp International LLC provided ‘police training and related services in Iraq’ (Idem at 9). Singer Corporate Warriors: The Rise of the Privatised Military Industry at 91-92; De Nevers ‘Private Security Companies and the Laws of War’ at 175; Holmqvist ‘The Private Security Industry, States and Lack of an International Response’ at 5.
26 ‘These offer direct, tactical military assistance, including serving in combat roles’ (Singer
‘Humanitarian Principles, Private Military Agents: Some Implications of the Privatised Military Industry for the Humanitarian Community’ at 3).
27 Rikke Ishøy (2008) Handbook on the Practical Use of International Humanitarian Law (revised edition) Danish Red Cross: København at 106-107.
28 As defined in the Draft Convention on Private Military and Security Companies (PMSCs), as ‘specialised services related to military actions, including strategic planning, intelligence, investigation, land, sea or air reconnaissance, flight operations of any type, manned or
use this approach, because, as the Montreaux Document acknowledges30: the reality on the ground is that the line between purely security functions often blurs into functions with a military flavour, and so it seems to be pragmatic to deal with all permutations of the ‘beast’. Consequently,
throughout this chapter I will refer to PMSCs, with the caveat that under this umbrella-term, will be individuals performing any range of tasks from active combat, military support31, training32 and non-lethal support33, through to passive defence, and the ‘protection and defense of civilians and their property’34.
IHL treaties35 (drafted ‘prior to and during the Cold War’36), and human rights treaties, currently make no specific reference to PMSCs by this
appellation37. At present, the legal response to PMSCs is focused upon enforcing some legal accountability for their actions, and ‘little effort seems to have been made to assess their general status under IHL’38. In 2008, a joint iniative between the Swiss government and the ICRC gave rise to a code of good practices for the private security industry called the Montreux
Document. The Montreux document contained a list of twenty-seven
obligations, requiring States to ensure that private security companies comply
unmanned, satellite surveillance, any kind of knowledge transfer with military applications, material and technical support to armed forces and other related activities’ (Human Rights Council ‘Report of the 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’
(2010) A/HRC/15/25 (‘Draft PMSC Convention’).
29 As defined in the Draft PMSC Convention, as: ‘armed guarding or protection of buildings, installations, property and people, any kind of knowledge transfer with security and policing applications, development and implementation of informational security measures and other related activities’.
30 Montreux Document at 37.
31 Which includes the provision of ‘logistics, intelligence and maintenance services’, as performed by Halliburton and its KBR subsidiary (Singer ‘Humanitarian Principles, Private Military Agents: Some Implications of the Privatised Military Industry for the Humanitarian Community’ at 3).
32 ‘Retired senior and non-commissioned officers’ are often contracted ‘to provide military advice and training’, as was the practice of Washington-based Military Professional Resources Incorporated (MPRI) (Ibid).
33 Who ‘provide logistical support such as de-mining, laundry and food services’ (Douglas Brooks ‘Protecting People: The PMC Potential: Comments and Suggestions for the U.K.
Green Paper on Regulating Private Military Services’ (2002) available at http://www.ipoaonline.org (accessed 17 September 2010) at 2-3).
34 Zoe Salzman ‘Private Military Contractors and the Taint of a Mercenary Reputation’ (2008) 40 International Law and Politics 853 at 857.
35 IHL is unusual in that it applies ‘to all individuals who find themselves in a territory in which there is an armed conflict (international or non-international), whether they are State or non- State actors’, and consequently is binding on PMSCs (Lindsey Cameron ‘International Humanitarian Law and the Regulation of Private Military Companies’ (2007) available at http://www.baselgovernance.org/fileadmin/docs/pdfs/Non-State/Cameron.pdf (accessed 20 August 2010) at 2).
36 Kidane ‘The Status of Private Military Contractors Under International Humanitarian Law’ at 364.
37 Montreux Document at 37.
38 Kidane ‘The Status of Private Military Contractors Under International Humanitarian Law’ at 365.
with international law39. The document then goes on to propose a list of seventy-three ‘good practices’, intended to assist States in ensuring that private security companies are both responsible under, and respect IHL and human rights law. At the same time that the Swiss initiative was drafting the Montreux document, there were also a variety of national and regional
associations being formed, with the aim of self regulating the private security industry of their members. These associations include the British Association of Private Security Companies (BAPSC), the Pan African Security Association (PASA), the International Peace Operations (IPOA), and the Private Security Company Association of Iraq (PSCAI). One year later in 2009 the UN 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-determination40
proposed a Draft Convention on Regulation Oversight and Monitoring of Private Military and Security Companies41. The draft convention proposes a regulatory framework which addresses a variety of issues including:
• regulating the relationship between States and private security companies42;
• State responsibility43;
• international humanitarian law and human rights law obligations44;
• limitations upon States against outsourcing inherent government functions or prohibited activities to PMSCs45.
The Draft Convention aims to establish mechanisms through its ‘Oversight Committee’46 and through its complaint procedures47, to monitor48 and enforce the provisions at both a domestic49 and international level.
With PMSCs fast outnumbering traditional armed forces on the ground in international armed conflicts50, and with the prospect that PMSCs are likely to be a permanent feature in ‘humanitarian, peacekeeping, and peace-
enforcement operations’51, there is an urgent and pragmatic need for IHL to
39 These include legislating, investigating, prosecuting and enforcing IHL obligations, including provision for the payment of reparations in instances where private security companies violate IHL.
40 Published under HRC Res 2005/2.
41 (13 July 2009) available at
http://www2.ohchr.org/english/issues/mercenaries/docs/A.HRC.15.25.pdf (accessed 20 May 2013).
42 Idem article 6.
43 Idem article 4.
44 Idem article 7.
45 Idem articles 8-11.
46 Idem article 33.
47 Idem article 34 and 37.
48 Idem article 35.
49 Idem article 4(5).
50 This chapter focuses solely on international armed conflicts, as defined by the 1949 Geneva Conventions, common article 2 and Additional Protocol I, because the legal regime that applies to international armed conflicts differs vastly from that which regulates non- international armed conflicts (Mahmoud Cherif Bassiouni ‘The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors’ (2008) 98(3) Journal of Criminal Law and Criminology 711 at 728), and the issue ‘combatant status …exists only in international armed conflicts’ (De Nevers ‘Private Security Companies and the Laws of War’
at 173; Jean-Marie Henckaerts and Louise Doswald-Beck (2005) Customary International Humanitarian Law Volume 1: Rules Cambridge University Press: Cambridge at 11).
51 Singer ‘Humanitarian Principles, Private Military Agents: Some Implications of the
address the issue of ‘where the modern PMSCs fit into existing international law’52. Without an ‘international convention which governs the activities of PMSCs specifically, the ‘status of today’s private military contractors is ambiguous at best’53. That said, ‘in situations of armed conflict certain well- established rules and principles do… regulate both the activities of PMSC staff, and the responsibilities of the States that hire them’54 under IHL.
Beyond the prospect of tribunals being flooded with cases involving the IHL status of PMSCs, lie other motivations for this analysis: first, opposition forces need clarity as to whether PMSCs may be legitimately targeted in the theatre of armed conflict; secondly, PMSCs need to know whether they are permitted to participate directly in hostilities (and exactly what activities amount to direct participation in hostilities), and lastly, PMSCs must appreciate the