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Getting private military and security companies to respect the law |
| ICRC.org |
As more military and security tasks are "outsourced" to private firms, questions arise as to what rules govern their behaviour in conflict situations. ICRC legal adviser Emanuela-Chiara Gillard comments on an initiative by the Swiss government to promote respect for international humanitarian law and propose some ways of dealing with the issue.
How did the initiative come about?
The idea came from the Swiss Federal Department of Foreign Affairs. Because of the increased presence of private military/security companies (PMCs/PSCs) in countries experiencing armed conflict, including occupation, they thought it would be useful to start a process of dialogue and reflection between states about the legal rules that apply.
This would also include steps that states could take to promote respect for international humanitarian law (IHL) and human rights law by these companies, whose appearance on the scene is relatively recent. The ICRC is glad to be associated with the project.
What rules apply and are they adequate?
Journalists and even experts often claim that there is a gap in the law when it comes to PMCs/PSCs. For the ICRC, on the other hand, it is clear that in situations of armed conflict there is a body of law that applies, namely IHL, that regulates both the activities of PMC/PSC staff and the responsibilities of the states that hire them.
The law also places obligations on the governments of countries where these companies are registered or incorporated, and where they operate.
In case of breaches of IHL, the legal responsibility of PMC/PSC staff and of the states that hire them is quite clear. Admittedly, practical difficulties have arisen in bringing legal proceedings when violations have taken place.
Where the law falls short is in the field of national or international control over the services PMCs/PSCs may provide and of the administrative processes, if any, which they must respect in order to be allowed to operate. There is no international regulatory framework specifically focusing on this industry and its activities.
Only a handful of states have adopted legislation specifically establishing procedures that PMCs/PSCs based in their territory must comply with in order to be allowed to operate abroad (South Africa) or that regulate the companies operating in their own territory (Iraq, Sierra Leone).
Finally, we shouldn't forget that the law is also there to protect the personnel of these companies, under certain conditions. The protection they are entitled to will vary, according to the type of activity they are carrying out.
Is this simply the desire of lawyers to regulate everything?
Not at all! PMCs/PSCs are increasingly working in situations – Iraq, for example – that bring them into direct contact with vulnerable people who are protected by the Geneva Conventions; it is essential for them to know and respect the law. Some PMCs/PSCs have in fact called for regulation and for the law to be clarified, and have welcomed the initiative.
Who is involved in this initiative – and what are the specific goals?
Essentially, states are the first entities concerned. But representatives of the industry have an extremely important contribution to make, so they too have been consulted, as have a small number of experts.
Obviously it is up to states to decide how they wish to proceed. As a minimum we would want the responsibilities of states and PMCs/PSCs and their staff under international law to be fully confirmed and acknowledged.
A further useful outcome could be a document providing guidance to states in their relations with PMCs/PSCs. This might suggest steps that they could take to enhance respect for IHL and human rights, either when they hire PMCs/PSCs, when these companies are operating in their territory or when PMCs/PSCs based in their territory wish to provide services abroad.
This document could also put forward the option of adopting a national regulatory framework that would provide a solid legal basis for dealing with the issue.
What are the next steps?
A first workshop, held in January 2006, brought together experts from states with relevant experience, as well as a small number of industry representatives and other experts; reactions were very positive. A second meeting will take place in Montreux in November 2006.
We're aiming for the issue to be brought up at international or regional gatherings, in particular at the 30th International Conference of the Red Cross and Red Crescent, scheduled for November 2007.
One thing is certain: the presence of PMCs/PSCs in conflict zones is likely to remain or even increase, and the time to start taking regulatory action is now.
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