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Private Forces, Public Harm: private security companies and international law

Published 23 Nov 2014

by Taryn Priadko

The widespread participation of private military and security companies (PMSCs) in contemporary conflicts has led to concerns about the extent to which transnational military entities are able to violate human rights, often with impunity. Traditionally centred on state responsibility, it appears that international human rights law has failed to keep pace with the rapid development and deployment of these non-state actors.

Two legislative instruments have been recently implemented by the international community: the Draft Convention on Private Military and Security Companies (‘the Draft Convention’) and the ‘Montreux Process.[1]

While these instruments remain at a stage of veritable infancy, it is worthwhile to compare the way in which they purport to define, promote and enforce the international human rights responsibilities of PMSCs. In doing so, this article aims to reveal that the fundamental dichotomy between public and private responsibility continues to undermine a sufficient approach. Arguably, it is only by achieving cohesion between these approaches that an effective global framework for the governance of PMSCs may be achieved.

Private military and security: a growing industry

Increased political instability, and the prolific upsurge in the privatisation of governmental functions has enabled the private military and security industry to gain traction. Nowhere has the extent of this trend been more apparent than in the Afghan and Iraqi conflicts, where a significant proportion of security operations have been outsourced to private contractors.[2]

To some, private military and security companies appear simply as a modern guise for mercenaries, corsairs and privateers of old. Yet these entities are distinguishable by the breadth of their functions. The contemporary PMSC typically offers a spectrum of services across armed and low-intensity conflicts, post-conflict situations, international relief, and contingency operations.

In light of these dual coercive and non-coercive roles, PMSCs have the potential to operate as “viable and legitimate” military actors.[3] As such, in addition to their deployment by state governmental authorities, intergovernmental organisations such as the UN and NATO have come to use private military and security contractors as part of a collective international security system. Despite their endorsement by multiple international institutions, PMSCs’ legitimacy has been undermined by allegations of human rights violations in the last decade.

Human rights violations

Numerous incidents involving private military and security companies have dragged PMSCs into the public spotlight. The worst of these involved summary executions by the company Blackwater in Baghdad (the Nisoor massacre), and acts of torture and other cruel, inhuman treatment at an Abu Ghraib prison by CACI and C-3 Services. Various incidents of arbitrary detention against alleged insurgents in joint covert operations with the CIA have also been publicised. Furthermore there are reports of serious health risks from the use of white phosphorous in anti-personnel weaponry, resulting in “rates of cancer, infant mortality and leukemia exceed[ing] those reported in Hiroshima and Nagasaki”.[4]

While these examples have been broadcast for their connection to the United States, a number of other human rights violations by PMSCs have been reported by the UN Working Group on the Use of Mercenaries (‘UN Working Group’). In 2010, their submission to the Human Rights Council detailed the significant role of PMSCs in serious health violations, in coups d’état that have denied people the right to self-determination, and in incidents of human trafficking.

Moreover, there have been concerns about the lack of necessary safety mechanisms for PMSC employees. In 2004 these concerns were raised, with furore, after the highly publicised death of four Blackwater employees in Fallujah by Iraqi insurgents, said to be the result of inadequate safeguards.[5]

While the recent situation in the Middle East has created the opportunity for the explosion of this new industry, it is apparent that the human rights violations are also rising within the industry. As Philip Alston, the UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions has noted:

“Iraq has been the best publicized of cases in this area,[but] it is not the first and will not be the last, since the ‘privatized military industry has been estimated at US$1 billion in annual global revenue’.[6]

The public scrutiny of these violations, and the lack of domestic or international redress, has had the positive impact of alerting the international community to the fact that the private military sector is currently “less regulated than the toy industry”.[7]

Accountability under the existing regime

Organisational responsibility

Due to the state-centred approach of traditional international legal discourse, the present state of international human rights law continues to posit the state as the dominant actor and identify other entities primarily through the lens of their relationship to the state. As such, PMSCs fall within the increasingly diverse category of non-state actors, who lack international legal personality and bear neither rights, nor obligations, under international law. Importantly, this means that human rights violations are largely unenforceable against the companies that commit them.

Additionally, as legally registered business entities increasingly engaged in unstable areas not amounting to a ‘conflict zone’ per se, PMSCs also fall outside the definition of mercenaries encapsulated in Protocol I Additional to the Geneva Conventions, and the International Covenant against the Recruitment, Use, Financing and Training of Mercenaries.[8]

While it is argued that corporate social responsibility developments such as the UN Global Compact and John Ruggie’s Guiding Principles on Business and Human Rights might impose due diligence obligations on PMSCs, they are neither customary nor directly binding upon intergovernmental organisations and private enterprise.

State responsibility

Under the International Covenant on Civil and Political Rights (ICCPR), state parties are required to take “appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities… [and] provide effective remedies in the event of breach.”[9] It is argued that the due diligence obligations imposed by this instrument create a sufficient nexus of state responsibility for PMSC atrocities.

In its practical application, however, the fundamentally transnational nature of PMSCs make it unclear which state has the responsibility of upholding international human rights law. Typically, a private military and security company will be registered in its ‘home’ state and contracted for service by another, the ‘hiring’ state, to carry out their operations in a third state, the ‘host’ state.[10] This presents regulatory difficulties, because where home state Y, contracted by hiring state X, sends personnel to operate in host state Z (a failed state). Arguably only state Z assumes responsibility, thus leaving a significant gap in international human rights protections.[11]

The argument that only the host state assumes responsibility is a consequence of the extraterritoriality restriction, which limits the responsibility of states to human rights violations that occur within their jurisdiction.[12] This makes it difficult to establish liability for the actions of PMSCs because, as illustrated, the human rights violations of these companies tend to occur within states that lack the regulatory apparatus to account for them.

Additionally, if the hiring state is not a party to the Optional Protocol to the ICCPR, they will have no obligation to ensure that its contractors respect human rights law in the host state, to punish personnel who violate human rights law, or to provide victims with some measure of redress.

This is significant in recent instances involving the United States. In the absence of international enforceability mechanisms to redress the human rights violations by contracted private forces, victims have had to attempt to rely upon domestic procedures for redress, most of which have proved inadequate. Overall, while there have been some convictions of PMSC employees for individual crimes, there has been a distinct lack of organisational accountability.[13]

Current developments in the law

In light of increasing concerns about the lack of a cohesive legal framework, the UN Working Group on Mercenaries was tasked with developing a Draft Convention on Private Military and Security Companies, which was put before the Human Rights Council in 2010. This treaty development coincided with the enunciation of another international legal approach, the ‘Montreux Process’, based on the Montreux Document of 2008, and the International Code of Conduct (‘ICoC’) of 2010. The starkly different approaches taken by the two schemes illustrate the difficulty of enunciating a regulatory regime that is able to effectively define, promote and enforce the human rights obligations of PMSCs.

The Montreux Process

Set out in two parts, the Montreux Document is an attempt at developing ‘soft’ standards for states. It begins by endorsing the existing international legal obligations of states for private military activities. In doing so, the document draws upon the aforementioned three-state nexus to provide precision as to which state is responsible for discharging the relevant legal obligation, and on what basis.

The second half addresses the ‘good practices’ of states in implementing these obligations. These good practices focus predominately on the relationship of states to PMSCs during situations of armed conflict. Yet in doing so, the document centres on international humanitarian law, rather than clarifying where private accountability might attach in both conflict and non-conflict situations. Thus, while it provides a clearer definition of murky concepts like ‘due diligence’, its definition of PMSC human rights obligations is not comprehensive.

Additionally, it does not actively promote human rights accountability, in its non-binding form, and does not, of itself, establish an international mechanism for the regulation of the due diligence obligations of either states or PMSCs. On the other hand, the ICoC compounds with the Montreux Document in order to provide an oversight mechanism for the corporations themselves. Since it is directed at businesses, and reflects Ruggie’s framework of human rights standards for business, it is said to be an exercise in corporate social responsibility.[14]

Under the ICoC, businesses must sign up to non-binding standards, in the hope that subscribing indicates recognition by the entity that it will act with due diligence. Since over 600 PMSCs have already indicated their willingness to subscribe,[15] the potential of the ICoC to promote industry-wide standards appears promising. However, as a means of self-regulation, it lacks enforceability. It is likely that all remedies will be at the whim of businesses unless there is some form of supervision under an oversight body set up within the code itself, or by states in fulfilment of their obligations under international law.[16]     

Therefore while the Montreux Process can be seen as having its strengths, not the least of which is widespread support, it lacks a clear international oversight mechanism to ensure its enforcement as anything more than symbolic, furthermore it remains silent regarding reparation to the victims of these violations by PMSCs.

The Draft Convention

By way of comparison, the proposed Draft Convention is both broad and detailed in its attempt to reconcile the divergent and, thus far, inadequate approaches to the regulation of the private military sector. It creates a new international legal framework, which reaffirms state responsibility for PMSC human rights violations, extends it to intergovernmental organisations, and defines itself as covering all situations in which PMSCs may operate.

Under the Draft Convention it can therefore no longer be argued that international humanitarian law displaces international human rights law when PMSCs operate in armed conflict situations. Importantly, like the Montreux Document, it also addresses the tri-state nexus that has obfuscated the clear responsibility of governments over PMSCs.

The Draft Convention therefore defines the affirmative responsibility of contracting states to ensure that the PMSCs it has contracted with are trained in and respect human rights, as well as detailing the measures that the home, hiring and host states are required to implement over PMSCs operating within their jurisdiction, whether or not they are contracted by them.[17]

In order to promote oversight, the Draft Convention proposes the establishment of a national register, and a national licensing system as part of a comprehensive domestic regime of regulation, in conjunction with a new international oversight regime akin to that of other international human rights treaties.  With an oversight committee, an inquiry procedure, an inter-state complaints and individual and group petitions procedure, it envisages an international legal regime as a means of full accountability for PMSC conduct. Moreover, it proposes an international monetary fund by which reparations can be made to victims of human rights violations. In doing so it creates the first clear avenue, outside of the domestic legal system, for a victim to seek redress for PMSC human rights violations.[18]

However, as will be shown, in its attempts to create a traditional human rights regime, the Draft Convention fails to account for the growing poly-centricity of international affairs and international actors. It is argued that “its breadth may be both its victory and its downfall” because it goes beyond the above propositions to delineate the very functions that states may outsource, leaving no room for states or PMSCs to engage in their own self-regulation, and is therefore said to provide little but a scant framework.[19]

The need for a holistic approach

The desire for the Draft Convention to limit the outsourcing of certain public functions reflects the concern of the UN Working Group that “the number of actors who can wield control over the use of force is limited only by their ability to pay”.[20] While there may be some merit to these concerns, it would appear that the broad construction of inherent state functions, for which governments must take full responsibility, is too broad. In the Draft Convention it is defined as including:

“Direct participation in hostilities, waging war and/or combat operations, taking prisoners, law-making, espionage, intelligence, knowledge transfer with military, security and policing application, use of and other activities related to weapons of mass destruction, police powers, especially the powers of arrest or detention including the interrogation of detainees and other functions that a State Part considers to be inherently state functions.”[21]

There are concerns that this broad definition could represent a structural defect in the proposal that may inhibit its implementation, because it infringes on traditional areas of state sovereignty.[22]

By denying any operation of Corporate Social Responsibility as a possible means of self-regulation within a wider international human rights regime, the Draft Convention also denies non-state actors, such as corporations, from becoming parties to it. It is reflective of this reality that Western states have so far supported the implementation of the Montreux Process, which has a distinct corporate social responsibility focus and preserves the current diversity of the private military industry. However, as seen, the Montreux Process requires the kind of oversight mechanism proposed in the Draft Convention to ensure that it adequately defines, promotes and enforces human rights obligations both of, and over, private military and security operations.

Conclusion

Examining the way in which international human rights law currently attempts to define, promote and enforce the human rights responsibilities of the private military and security sector, and to account for resultant harms, reveals that both the existing and proposed frameworks fail to achieve full and substantive accountability.

However, if a cohesive framework of state and organisational responsibility for PMSC conduct could operate alongside a corporate social responsibility approach to self-regulation, then arguably this would give greater allowance to states to outsource their functions, but not their ultimate responsibility. This can be achieved by making small compromises to bring the two proposed approaches into tandem, and would also likely incite a far more significant number of states to commit to an overarching human rights framework.

If successful, such a framework could set a precedent for governing other non-state actors who currently operate with relative impunity. Establishing a realistic, contemporary approach may provide a polycentric and far more sufficient means of achieving the ultimate goal of human rights, that being the protection of individuals against institutional harm.

 

Taryn Priadko is currently completing a Bachelor of Laws and Bachelor Communications at the University of Technology, Sydney, and has an interest in business and human rights.

 

[1] Montreux Document on pertinent international legal practices for States related to operations of private military and security companies during armed conflict, pmbl. Sec. 9, U.N. Doc. A/63/467, Annex (September 17, 2008) (‘Montreux Document’).

See also International Code of Conduct for Private Security Service Providers (ICoC), at http://www.icoc-psp.org, cited in Jose L. Gomez Del Prado, ‘A U.N. Convention to Regulate PMSCs?’ (2012) 31 Criminal Justice Ethics 3.

[2] Prado, 263.

[3] Peter Singer, ‘Corporate Warriors: The Rise of the Privatized Military Industry, Updated Edition’ (Cornell University, 2008), vii.

[4] Jose L. Gomez Del Prado, ‘The Privatization of War: Mercenaries, Private Military and Security Companies (PMSC)’ (2014) Global Research, at http://www.globalresearch.ca/the-privatization-of-war-mercenaries-private-military-and-security-companies-pmsc/21826, 7.

[5] Prado, 266-267. See also Louis Hamsen, “Families Sue Blackwater Over Deaths in Fallujah,” Virginia Pilot, (6 January 2005), available at http://www.corpwatch.org; J. Scahill, “Blood is thicker than Blackwater,” Nation, (1 May 2006).

[6] Ibid, quoting Peter Singer, ‘Warriors for hire in Iraq’, Salon.com, (15 April 2004), at http://www.brook.edu/views/articles/fellows/singer20040415.htm

[7] Prado, 1.

[8] Hin Lan Liu, ‘Leashing the Corporate Dogs of War: The Legal Implications of the Modern Private Military Company’ (2010) 15 Journal of Conflict and Security Law 141, 122, cited in Katherine Huskey, ‘Accountability for Private Military and Security Contractors in the International Legal Regime’ (2012) 31 Criminal Justice Ethics 3, 197.

[9] HRC, General Comment No. 31, sec. 8.

[10] Olivier de Schutter ‘The Responsibility of States’ in Simon Chesterman and Angelina Fisher, Private Security, Public Order: The Outsourcing of Public Service and Its Limits’ (Oxforf Scholarship Online, 2010), 26.

[11] Katherine Huskey, ‘Accountability for Private Military and Security Contractors in the International Legal Regime’ (2012) 31 Criminal Justice Ethics 3, 199.

[12] Ibid. See ICCPR, above n 34, art. 2; European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, (4 November 1950), ETS 5, art.1, (‘ECHR’).

[13] Elizabeth LaForgia, ‘UN rights experts call for international regulation of private military companies’, (5 November 2013) http://www.jurist.org/paperchase/2013/11/un-rights-experts-call-for-international-regulation-of-private-military-companies.php#.U0n2_Ra5Bwd

[14] White, 249.

[15] Federal Department of Foreign Affairs, ‘International Code of Conduct’ (22 May 2013), <http://www.eda.admin.ch/eda/en/home/topics/intla/humlaw/pse/coc.html>.

[16] White, 250.

[17] Draft Convention, art. 4(1).

[18] Prado, 272.

[19] Huskey, 207-8.

[20] Anna Leander “The Market of Force: The Consequences of Privatizing Security” (2008) 11 Journal of International Relations and Developments 1, 75-77, quoted in Prado.

[21] Draft Convention, Arts. 2(1), 9.

[22] White, above n 14, 240, citing Neil Walker “Late Sovereignty in the European Union”, in Sovereignty in Transition: Essays in European Law, ed. Neil Walker (Oxford: Hart, 2003) 18, 17, 23.