How can the international community control the services of private security companies (PSCs) and private military contractors (PMCs)? This paper reports on an intergovernmental dialogue initiated by the Swiss government, in collaboration with the International Committee for the Red Cross. It discussed ways to promote respect for international humanitarian law (IHL) in the operation of trans-national PMCs/PSCs in conflict areas. It concluded that international legal obligations must not be circumvented by states through the use of PMCs/ PSCs. Violations of international law by PMCs/PSCs could become the contracting state’s responsibility.
Since the 1990s, PMCs/PSCs have increasingly been used in conflicts, in peace times or in periods around armed conflict where there is insecurity due to common criminality. Transnational and domestic military and security services will increasingly be used in the future. But private security can have both a positive as well as a negative impact on human rights and human security. And while many states have regulated the domestic private security sector, few have regulated the trans-national security industry.
As these companies often operate in fragile states, where the law enforcement institutions are still weak, particular attention is required to ensure appropriate accountability. This is the reason for the Swiss Government’s initiative, which brought together government experts from states: that contract PMCs/PSCs (contract states); on whose territory PMCs/PSCs operate (host states); and where the PMCs/PSCs are registered (home states).
The experts decided that:
- the first obligation of international law that must not be circumvented by the use of private actors is the prohibition force against another state;
- individuals who commit serious violations of international humanitarian law or gross violations of human rights may incur criminal responsibility directly under international law and may be prosecuted by national or international tribunals; and
- while the existing international and national legal frameworks address many issues raised by PMCs/PSCs, the key challenge remains how to enforce and ensure respect for the relevant standards.
Regulation may serve to address these issues, which is why the Swiss Government initiative is attempting to elaborate best state practices on how to develop regulatory options at national or regional level.
Contracting states could require PMCs/PSCs, by the terms of their contract to:
- vet their employees;
- train them in all laws applicable to security services as well as in human rights law and IHL;
- provide training in de-escalation as well as in the responsible use of weapons;
- adopt standard operating procedures in compliance with national and international law and in accordance with their mandate under the contract; and
- provide for internal disciplinary sanctions and take measures to allow affected persons to complain about misconduct.
Host states could include provisions in their national regulation such as:
- determining specific activities that PMCs/PSCs can be licensed to carry out within the state’s territory;
- requiring companies to obtain an operating licence to provide specified security services;
- establishing conditions for the approval of licenses and sanctions for operating without a license or for violating the conditions of a license;
- establishing systems for monitoring compliance; and
- measures to promote transparency and mechanisms for holding perpetrators of crimes accountable under law.
Home states could:
- extend existing arms export regulations to cover the export of military services and armed security services.
