Many people believe that private security companies (PSCs) and private military contractors (PMCs) operate in a legal vacuum in conflict zones. This is not true, according to research from the Institute for Security Studies. In all armed conflict, international humanitarian law (IHL) applies. It provides a legal framework to protect civilians from the effects of the hostilities. As many PSCs and PMCs come into contact with people protected by IHL, it is essential for them to know and respect this body of law.
Today, more and more PSCs and PMCs are involved in conflict zones, as the wars in Afghanistan and Iraq illustrate. Furthermore, PSCs and PMCs now operate not only in service support functions, but also in core military functions. Given the nature of their activities, PSCs and PMCs increasingly come into contact with both civilians and combatants.
The responsibilities, status and protection of PSCs and PMCs will depend on whether, under IHL, they are deemed to be combatants or civilians. IHL gives protection to people or property affected by conflict and limits the methods of warfare. During armed conflicts, a distinction must be made between civilians and civilian objects on the one hand and military targets on the other. But PSCs and PMCs don’t fall clearly into either category.
Any assessment must be pragmatic, looking at the nature of their functions, their closeness to core military activities, their affiliations and so on. However, irrespective of their affiliation or capacity in times of conflict, PSCs and PMCs must respect IHL.
- PSCs and PMCs, operating in armed conflicts, may be legally liable if they act counter to the provisions of IHL.
- Under IHL, individuals can be held criminally responsible for serious violations of the Geneva Conventions, referred to as grave breaches, which include wilful killing, torture or inhuman treatment and wilfully causing serious injury.
- Members of PSCs and PMCs who commit such offences can be prosecuted, whether they are acting on behalf of a party to the conflict or working for civilian entities such as multinational companies.
- Responsibility for acts violating IHL, committed by employees of PSCs and PMCs, can be attributed to their superiors.
Where PSCs are PMCs are active in conflict zones, the onus is on states to ensure that they operate within the confines of IHL.
- States should adopt the necessary civil and criminal legislation to punish serious violations of IHL.
- States should look into codes of conduct and regulations to ensure that PSCs and PMCs, over which they have jurisdiction, are aware of the applicable laws in times of armed conflict.
- If a state considers a PSC or PMC to form part of its armed forces, then it should take the necessary steps to clarify this.
- Where a PSC or PMC asserts its right to take part in hostilities and engage in combat on behalf of a state, it should do so only on sure legal footing and not rely on that state’s apparent approval.
