Lately, there has been increased demand for private military contractors due to the global security threat. Private military contractors are people employed by private military companies. These people offer security services which are akin to those offered by the military department employed by the government, but in a limited way. It is not uncommon for the government to ask for the services of private military contractors whenever they need training and refresher courses for the military. The services of these people are also useful to private companies, who hire them to offer security to the high profile people in the company. Some companies also hire these people when they need protection for their property especially in regions which have no stability in security related matters. Although the private military contractors are useful both to the government and to private companies, they have been known to occasionally be a threat to people in the regions of their operations. This is especially so in regions with eruptions of violence, where these contractors are known to use excessive force while handling the people there, contrary to the Geneva Conventions. This paper shall address the issue of the private military contractors and narrow down on its legal status in the contemporary conflict. The issue of whether or not these contractors have a legitimate role to play and what should be done either to regulate them shall also be tackled.
The legal status of private military contractors in contemporary conflict
There has been a heightened concern about the use of the term ‘private military contractors’ in the contemporary world. The term has a negative connotation because it is associated with people who are spurred by a desire for more money instead of virtues such as patriotism. The debate on whether the private military contractors and the mercenaries are the same still continues to date especially due to the need to establish whether the international humanitarian law is applicable to them in the capacity of mercenaries or if not, what laws are then applicable in their course of operations.
According to Adams (1999), establishing this has been very difficult because of the name ‘private military contractors’ that the group uses to identify itself. The greatest problem in the use of such a name is that it is not easy to define this name legally and as a result, no international legal bodies have been able to define it or make laws to govern its operations. Those who use this name further complicate matters by arguing that it is a unique one and because these people are under no obligation to the international humanitarian law. The term that seems to be closely related to private military contractors is ‘mercenary’, which is defined differently by the international laws (Isenberg, 1998).
Its use is however, not set aside for use legally. On the contrary, the term is often used by people in discourse while conveying their censure but not to describe a person bound by the international law. The meaning conveyed by this term is mostly political and not legal (Carl, 1989). To try and find out the legal status of these private military contractors in the contemporary conflict and what various laws say about them, the term corporate actor is used. This term is considered to be inclusive of all such groups whose operations are considered to be mercenary in nature or private military contractors (Spincer, 1999). There are however, instances in the law where there is particular reference to mercenary activities without including the other corporate actors. Several bodies have attempted to demystify the legal status of these corporate actors. They include:
Conventional view of the private military contractors
Laws dealing with mercenary and private military contractors operations were formulated after pressure from two groups namely Organization of African Union (OAU) and nations which practice socialism on the states represented at the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. According to Shawcross (2000), this process has not been a smooth one because of the diversity in opinion that exists between states. Some of the states are of the opinion that laws governing the corporate actors should be included in the rest of the international laws which deal with humanitarian issues, while others say that the laws should be exclusive. This is one of them factors that have made it hard for the formulation of the laws under which the private military contractors would operate. Only few states are willing to participate in coming up with the very specific laws that would govern such bodies.
International Humanitarian Law Instruments
The main aim of this body is provision of protection to people in cases of armed conflicts. This protection includes legal protection and this happens without the International Humanitarian Law Instruments favoring a particular group of people (Huntington, 1997). While dealing with the groups that fall under the corporate actors, their approach is viewed with a lot of suspicion. The definition itself of who a mercenary is is not clear and there are no clear rules on the fate of the groups which are under the corporate actors. Some of the ways that have been prescribed by various groups concerning how to deal with the mercenaries include:
The Hague Convention held in 1907
According to the provision of Article 4 of this convention, it is unlawful for groups such as the private military contractors to be established in within the boundaries of a neutral state with the aim of assisting some group there in dealing with armed conflicts. Article 5 is a follow up on Article 4 and has to do with the neutral state putting across measures that would ensure that what is forbidden in Article 4 does not happen within its boundaries. Another Article, Article 17, says that if someone, purporting to be a private military contractor is involved in conduct that favors a belligerent and the conduct has to do with the use of arms, then they can not claim that they are acting in neutrality (Solis, 2010). Despite such a conduct, the person is still liable to receive protection offered in a belligerent government.
The Geneva Convention held in 1949 and the Additional Protocols of 1977
During the Geneva Convention held in 1949, there was no discussion about the private military contractors or any similar groups. It was not until 1977 Additional Protocol when the International Humanitarian Law Instrument mentioned this issue and also chose to deal with it accordingly. The laws made concerning this subject apply to only armed conflicts that are international. However, not all states which are members of the Geneva Convention are part of this protocol (Freedman, 1994).
Proposal for inclusion of laws governing the operations of private military contractors was pioneered in 1976. This was done by a delegation of Nigerians to the Diplomatic Conference. The issue was not agreed upon until the following year, 1977, when there was an agreement about this article. However, the consensus was not arrived at because everyone was comfortable but because there were some delegates who chose to compromise even though they were not comfortable with the article.
Article 47.1, found in the Additional Protocol, provides for someone to be stripped of their rights of combatant once there is sufficient evidence to link the person to being a mercenary. In this context, a mercenary is described as a person who is hired locally or overseas with the intention of taking part in an armed conflict. The impetus for the private military contractor is usually considered to be a better package that is offered to them compared to their counterparts of the same rank in the armed forces. The other criterion that is used to identify the private military contractor is their nationality. If one is not a national of the region marred by the conflict or does not live in the same region, but is taking part in the armed conflict, then the person can be considered as a mercenary of a private military contractor. The last way that is describe the private military contractor is by identifying whether the person involved in an armed conflict has been sent there on official duty even if by a different state. If they do not meet this requirement, then they can be considered as private military contractors and laws governing such bodies can be used on them.
Although Article 47 of Additional protocol was formulated to address the issue of private military contractors, it is unanimously agreed by those working in the legal departments that this was not done in a way that was satisfactory. They believe that the Article was written down as a way of escaping from the pressure by the African Nations (Misser, 1997). The criterion for identifying one as a private military contractor is tedious and impractical to some extent because the person has to meet all the above discussed requirements. It may not be possible to get an individual to satisfy all the requirements stated by the law and hence, the private military contractors end up having no laws that govern the way they work. Since both the mercenaries and the private military contractors are grouped together under the corporate actors, it becomes even harder to get laws that distinguish the two and stipulate the necessary laws under which they must operate. For example, the issue of motivation is a contentious one. Some people suggest that the two (mercenaries and private military contractors) should be differentiated using their motivation. This is because; mercenaries are always driven by the motivation unlike the private military contractors (Robinson, 2008).
Having identified the private military contractors accordingly, it is important to find out whether they are entitled to any rights under the international humanitarian laws this is because, Article 47 deprives them of the rights of the combatant and the prisoner-of-war even though they are taking part in the war. Article 75 of the same document, the Additional Protocol, gives the private military contractors some rights as non-combatants who are also involved in the armed conflicts. Some of these rights include the right fair and just treatment, as human beings who deserve to be treated with respect and dignity and also the right of protection from corporal punishment and other similar treatments. These suggestions of this article were supported by the Diplomatic Conference which was held in 1977. The existence of these laws refutes the commonly held belief that the private military contractors are not recognized by the international humanitarian law and that there are no laws to guide their operations in the same body of laws.
Legitimacy of the roles played by private military contractors
It is important to note that the term ‘private military contractors’ does not feature in any of the existing international legislation. It is also not featured in the conventions. The term that is has the closest meaning and where the private military contractors are presumed to fall under is the term ‘mercenary’. This is stated in Article 47 of the Additional protocol. It is only in the additional Protocol that this term has attempted to be defined, in all the international laws.
O’Brien (2000) notes that; the Additional Protocol does not term the private military contractors as illegal. On the contrary, the Protocol recognizes that such a body exists particularly in areas characterized by war and tries to come up with a legal status of the group by defining the group’s position in the international humanitarian law.
The Organization of African Unity (OAU) has also attempted to define the term ‘mercenary’ and advocate for its eradication in Africa (Musah, 2000). Although the OAU agrees in terms of the definition of who a mercenary is, it is against mercenary activities and is of the opinion that states which make up this union should be given the power to prosecute these mercenaries who may be present in their countries when there is need to do so (Solis, 2010). However, this is only applied to those states that are members of this union.
Since the private military contractors are inherently different from the mercenaries, they can be considered to have a legitimate role to play. A good example can be seen from the activities of a private military contractor known as Military Professional Resources Incorporated (MPRI).
This private military contractor is vital in equipping and offering training skills about direct combats to nations that are overseas (Peters, 1999). Their activities fall within the jurisdiction of the Additional Protocol. The MPRI states that as a private military contractor, it is mandated to offer training and equip armed forces for direct combat, among other activities and has enough resources to carry out these tasks legally. To validate its claims, the company has been contracted by several states to offer their services. In 1995, MPRI was contracted by Croatia to carry out leadership training and oversee the development of a group of corps who would aid the government in the period during the Balkans Crisis. Their help in these areas led to success in operations conducted in a province called Krajina. Madsen, (1999) state that in 1999, they were also contracted by Kosovo to give assistance in equipping again of the Battalions which dealt with counter-drugs and the aim was to enable them carry out offensive attacks. Other places that have benefited from the MPRI services are Columbia, Senegal and Bosnia (Burton-Rose, 1999).
The other private military contractor that has made remarkable contribution in various states is the Sandline International. Dorney (1998) and O’Callaghan (1999) point out that in 1996; they were contracted by Papua New Guinea to help in training and equipping the armed forces there to fight against a rebel group known as Bougainville Revolutionary United Front. In 1997, Sierra Leone also contracted them for the same purpose of training and equipping the natives against a rebel group known as the Revolutionary United Front. Both of these operations were aborted. For both of these private military contractors, the financing and remuneration of the people involved are paid by the state that gives them contracts. The funds are relayed through the private military contractors and not to individuals.
The use of private military contractors is effective especially in cases where there lacks political will to venture in areas where the risks are high and the local constituency in such a territory is very low so as to allow involvement of the overseas government troops (Robinson, 2008). For example, the private military contractor, DynCorps, was contracted in 1998 to offer its services in Kosovo, in a bid to help the NATO forces in that region. Other nations sent some of the people from the local armed forces to join the group.
How to regulate the private military contractors
Since private military contractors play a vital role in ensuring that the armed forces in a particular state are not rigid and but are more efficient, the governments should look for ways that they can make use of them effectively. It is possible for better outcomes to be experienced if governments pay more attention to these private military contractors and eliminate mistakes in the operation of the private military contractors that have been experienced in the past (Waltzer, 1992).
In the view of Brooks (2000), the private military contractors should ensure that they hire only qualified people into the various positions that exist in their companies. This is meant to avoid recurrence of incidents where contractors that had been hired were found to be incompetent. An example of such an incident can be found in the U.S Senate Armed Services Committee Inquiry about the presence of private military contractors in Afghanistan. In this committee, it was revealed that the findings showed that the private military contractors there were not sufficiently trained and therefore did not have the necessary skills for such a task.
Another thing that the private military contractors should do is to provide enough arms to the people working for them. In the same inquiry, it was revealed that the private military contractors there had not supplied enough ammunition to the group on the ground which made their work very difficult (Brown, 2000).
The government should also purpose to closely keep an eye on these private military contractors in order to oversee that the statements of work of these contractors are executed. This would ensure that contractors who do not meet the country’s defense department’s values are disqualified from carrying out any of their operations.
There should also be transparency in awarding of contracts to private military contractors. These contracts should be given on merit to ensure quality in the services provided.
Empowerment of private military contractors would yield better results because they have the manpower and flexibility that the military forces may lack. The private military contractors are also cost-effective and are very useful to the military department of a nation (Shearer, 1998).
The discussion in this paper clearly shows that private military contractors, who fall under the category of corporate actors, are not the same as the mercenaries as defined by the international law. Undeniably, the shallow definition of mercenaries under this law leaves very few people who can be defined as such. Nevertheless, there are some provisions that single out mercenaries from the group of corporate actors and their activities are discouraged. They include the conventions on mercenaries, which condemn the activities of this group of people.
Although Additional Protocol 1 of the international humanitarian law does not condemn the works of the mercenaries, the conventions held to discuss specifically about mercenary activities condemn these activities. While there are no explicit laws in the Additional Protocol addressing the private military contractors’ activity except being stripped of the rights of combatant, the PMC’s do not carry out their activities in a legal vacuum. There is a provision for them under the fundamental guarantees found in the Protocol which ensure that their rights as human beings are not violated.
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