Private military and security companies - The legal framework – Christophe Deschard, ICRC Regional FAS Delegate Sarah Swart, ICRC Legal Assistant 27 August 2010

Why is there a humanitarian need to address the question of PMSCs? Traditional functions of the State contracted out to Private military and security companies Nature of PMSC activities has changed Implications for protection of population Oversight by the States ? Recruitment of personnel Criminal accountability

PMSCs: the legal framework  Not a legal limbo! but need for:  Awareness of IHL  Actual respect of IHL during operations  Mechanisms for accountability for violations  Outline: 1. Obligations of States 2. Status of staff of PMSCs

MONTREUX DOCUMENT ON PERTINENT INTERNATIONAL LEGAL OBLIGATIONS(PART 1) AND GOOD PRACTICES (PART 2) FOR STATES RELATED TO OPERATIONS OF PRIVATE MILITARY AND SECURITY COMPANIES DURING ARMED CONFLICT

There are several States involved  Respect and ensure respect for IHL  States that contract PMSCs  States on whose territory PMSCs operate  States where PMSCs are incorporated

States that contract PMSCs  Obligations of States under IHL remain  Obligation to ensure respect for IHL by the PMCs/PSCs they contract  State responsibility for violations of IHL committed by the PMCs/PSCs  Obligation to investigate and prosecute  Human rights obligation to protect persons: to take appropriate legislative and other measures to prevent, investigate and provide remedies.

Home States and States where PMSCs operate  Respect and ensure respect for IHL (4 GC : Common Art.1) Possible measures:  Licensing/regulatory system.  Prohibition of certain activities  Requirements such as training, standard SOPs/ROE, disciplinary measures  Authorisation for every contract depending on nature of activities  Sanctions (withdrawal of operating licence, loss of bond, criminal sanctions…)  Bringing to justice individuals / companies  Human rights obligation to protect persons: to take appropriate legislative and other measures to prevent, investigate and provide remedies.

Status of staff of PMSCs  Members of the armed forces?  Members of other “militias or volunteer corps belonging to a State Party to an armed conflict” (Article 4(A)(2) of GCIII)?  Civilians accompanying the armed forces (Article 4(4) of GCIII)?  Civilians?  [Mercenaries?]

Legal consequences for staff of PMSCs  Status and rights upon capture  Obligations of individuals:  Bound by IHL  Criminal responsibility for serious violations of IHL  Civilians:  Direct participation in hostilities  “Collateral damage”

Obligations of companies?  No obligations of companies as such under IHL or human rights law  But: practical measures to ensure that staff respects IHL:  Vetting of staff  Training of IHL  SOPs, ROEs in compliance with IHL  Mechanisms for investigation and accountability

Challenges for respect of the law  Practical measures to ensure respect – how to enforce them?  Sanctions for violations:  Lack of extraterritorial jurisdiction and weak implementation by the contracting State and the Home State  Weak legal systems of territorial State  Which rules on the use of force should apply?  If contractors act as civilians: more restrictive than rules from rules on conduct of hostilities

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