Mercenaries, Combatants, or Civilians?

It may be tempting to qualify PMC employees as mercenaries or combatants rather than civilians. However, none of this appears to fit the variety of their activities and the complexity of the criteria set forth by law for each category.

The mercenary category is not of great help to regulate PMC activities for two main reasons. To start with, there are very few elements regulating the use of force by mercenaries as the first aim of the mercenary conventions is not to regulate but to eliminate this practice through criminalization of mercenary activities. However, being a mercenary is not in itself a violation of the law of armed conflict, meaning that they remain bound to respect humanitarian law provisions on the use of armed force. The second main problem lies in the definition of mercenaries detailed in Article 47 of Additional Protocol I to the 1949 Geneva Conventions, which is similar to the mercenary conventions. This definition sets forth six cumulative conditions that a person must fulfill in order to be considered as a mercenary. These conditions are widely viewed as “unworkable” in practice. They require a case-by-case individual determination of status, which does account for the general status of PMC employees and their collective and multinational dimension.

The mercenary definition does not cover the full range of PMC activities since it refers only to recruitment in order to fight, without addressing the grey area of security missions where armed force is not used for fighting but for defense or security. For instance, being in charge of the security of a military commander may exceed normal security and self-defense activity and reach the point of direct participation in the hostilities. The notion of direct participation in the hostilities used by IHL to delineate civilians from combatants is therefore more relevant to describing and regulating PMC activities.

Under IHL, PMCs’ employees may qualify as combatants if they can be considered as incorporated in the armed forces (API Art. 43.1). Unfortunately, Additional Protocol I provides no guidance regarding formalities of incorporation. This is therefore left to national regulation, which usually takes a restrictive approach, refraining to consider PMC members as incorporated into their armed forces. The definition of combatant contained in the 1949 Third Geneva Convention is also very complicated to apply to PMC employees since it requires meeting criteria provided by Article 4.a.2 for members of militia or other voluntary corps belonging to a party to the conflict: (1) being commanded by a person responsible for subordinates; (2) having a fixed distinctive sign recognizable at a distance; (3) carrying arms openly; and (4) conducting operations in accordance with the law and customs of war. State practices in this field could be regarded as a deliberate choice to rely on the ambiguous status of groups participating in the conflict. It must be remembered that State practices contributing to confusion between “lawful” and “unlawful” combatants is in blatant contradiction to States’ duties under IHL.

In order to cover such grey areas, IHL has developed a special status in between the traditional civilian and combatant groups. This new category aims at covering persons who take part in hostilities without being members of the armed forces (API Arts. 45, 51.3). PMC employees can then at least be afforded this status. Therefore, they could become legitimate targets and be deprived of their status of civilians, but only during the time of their direct participation in hostilities. They could also be detained and prosecuted on the basis of such participation. However, it must be remembered that the concept of direct participation is strictly defined as acts of war, which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces (API Art. 51.3, commentary). It does not include persons and activities that are only supporting war effort. Furthermore, the concept of direct participation must always follow a restricted interpretation because of its derogation to the higher principle of civilian protection.

From the above consideration, the regulation vacuum of PMCs looks more like a choice sponsored by some States than like an inevitable legal vacuum.

▸ Civilians ▸ Combatants ▸ Mercenaries ▸ Non-state armed groups

The Montreux Document (2008)

From 2006 to 2008, the Swiss government and the International Committee of the Red Cross (ICRC) initiated a working process with governmental experts of seventeen countries among the most affected by or resorting to PMC activities: Afghanistan, Angola, Australia, Austria, Canada, China, France, Germany, Iraq, Poland, Sierra Leone, South Africa, Sweden, Switzerland, the United Kingdom, Ukraine, and the United States. Representatives from the civil society and from military and security companies were also consulted. The outcome of this process was the Montreux Document, published in September 2008 by the ICRC and the Swiss government. The intent of this document is to promote respect for international humanitarian law and human rights law in the area of private security. It is not legally binding as such; rather, it contains a compilation of good practices designed to help States take national measures to implement their obligations toward these new activities.

The Document attempts to address substantive legal concerns such as the status of PMC personnel under the 1949 Geneva Conventions, individual accountability for misconduct in different jurisdictions, and the authorities’ duty to oversee and screen the actions of PMCs for potential misconduct. It also highlights the responsibilities of three types of States: contracting States (countries that hire PMCs, also called “hiring States”), territorial States (countries on whose territory PMCs operate, also called “host States”), and home States (countries in which PMCs are based, also called “exporting States”).

It finally proposes good practices that could be implemented in order to regulate at country level the activities undertaken by PMCs, ranging from introducing transparent national licensing regimes to ensuring better supervision and accountability by providing training on IHL and developing internal procedures.

Responsibility and Accountability of PMCs

Although there are in theory different ways to trigger responsibility related to PMC activities, implementation of these options remains largely virtual and in need of effective national regulation and implementation.

The Position of the U.S. Government

As the main promoter and user of PMCs, the United States of America has updated its domestic regulation to fill a legal void. Since 2004 and under the Contractor Accountability Bill, PMCs based in the United States must obtain a license from the Defense Trade Control Office. Instruction no. 3020/41, titled “ Contractor Personnel Authorized to Accompany the U.S. Armed Force” and adopted on 3 October 2005, completes these regulations. This instruction has not settled the debate regarding the threshold required for qualification as direct participation in hostilities for PMC activities under the Geneva Conventions and Protocols. But it has at least clarified some elements regarding their liability and prosecution. In this Instruction, the U.S. government establishes a policy and assigns responsibilities to contractor personnel authorized to accompany U.S. armed forces, called “contractors deploying with the force” (CDF). However, this Instruction only applies to contractors employed by U.S. military forces and is not applicable to contractors employed by other U.S. governmental bodies or by U.S. reconstruction companies for security missions. The specific rights and responsibilities of PMC employees authorized to accompany U.S. armed forces have been clarified as follows:

• Determination of status: If designated as such by the power they accompany, CDFs may support military operations as “civilians accompanying the force.” Nonetheless, if captured by an enemy State during an international armed conflict, they shall be entitled to prisoner-of-war status.
• Use of force: CDFs will not be authorized to possess or carry personally owned firearms or ammunition, nor will they be allowed to be armed during contingency operations. But this principle suffers the following exception: contractors deploying with the force are authorized to be armed for individual self-defense on a case-by-case basis and only when military force protection and legitimate civil authority are deemed unavailable or insufficient.
• Responsibilities before the law: Contractors deploying with the force must comply with international humanitarian law and U.S. laws, as well as applicable host nation and third-country national laws.
• Individual liability: Unless immune from host nation jurisdiction by virtue of an international agreement or international law, CDFs can be subject to U.S. or host nation prosecution and civil liability.

Since 2007, the gap of their criminal liability has been partially filled in the United States by a revision of the unified Code of Military Justice approved by Congress. Pursuant to this revision, the contractors are under the jurisdiction of the United States of America Martial Court if they violate the rules of engagement or are involved in criminal activities.