Private Military and Security Companies and Their Personnel in the Context of International Humanitarian Law

Abstract

The tendency after the end of the Cold war to downsize national armies on the one hand and persistent armed conflicts in unstable African, Near East and Balkan regions on the other created opening conditions for the revival and rapid evolvement of the private business structures that provide military and security services. Prevailing viewpoint that PMSCs and their personnel represent the new form of the mercenary is not correct from the IHL perspective and could lead to serious human rights abuses. Numerous cases and analysis of the scholar literature shows that inaccurate qualification of the PMSCs’ employees’ status results into deprivation of certain scope of protection from private contractors. Moreover, since there are no accountability and control mechanisms, a high risk for the abuses and impunity for violations of the IHL occurs. Present master thesis aims to analyze international legal status of the PMSCs and their personnel in the context of armed conflict. It also assesses conformity of the existing practice to the IHL norms. In order to conclude a comprehensive research, author provides historical perspective of the warfare privatization, surveys factors that contributed to the outsourcing of military functions, defines what is PMSC, what are their types and capacity of each type, highlights distinguishing features between mercenaries and private contractors and gives a review of the contemporary practice of their use in the armed conflicts. Hypothesis that legal status of the PMSCs and their personnel under IHL is insufficiently defined and that international community should take adequate steps to modify present conventions to reflect needs of the present was formulated on the ground of the initial literature review. The first part of the thesis provides characteristics of the mercenarism and other forms of the private violence, its historical evolution to the modern military services industry and the attitude of the international community towards it. Present situation and tendencies in the development of the phenomenon of the PMSCs, its’ types, main features of each type and differences between the scope of their capacities are addressed in the second section. It is also introducing the factual situation of the involvement of the private soldiers in contemporary armed conflicts and threats and potentialities they suggest. The third part is dedicated to analyze and qualify PMSCs personnel status under IHL. It also surveys international legal basis regarding mercenaries and gives an evaluation of the dividing line between these two forms of participation in warfare. Moreover, it puts forward proposals up to which extent such participation is legal under the humanitarian laws. Finally, the third part scrutinizes legal status of the PMSCs as corporate entities and states obligations and responsibilities in this regard. On the basis of the research concluded in the final part conclusions are drawn. It is inferred that the hypothesis proved out only partially. In contrast to the initial assumption and prevailing position in the legal literature, legal status of the individual PMSCs employees is sufficiently defined. Depending on the functions that they are contracted to perform and level of incorporation they are falling under one of the two exhaustive categories: they are either civilians or combatants. On the other hand, legal status of the PMSCs as corporate entities is not addressed under IHL at all. It is regulated through the domestic laws.