Sgt Russell Gilchrest, US Army, Wikimedia Commons>
Several armed conflicts classified in our RULAC online portal see the participation of mercenaries or private military security companies (PMSC) alongside states’ armed forces. This is notably the case for instance in Mozambique and Nagorno Karabakh.
Dr Chiara Redaelli, in charge of RULAC and an expert in international humanitarian law (IHL), answers our questions regarding what IHL says about this phenomenon.
First of all, it is necessary to distinguish between private military security companies (PMSCs) and mercenaries. PMSCs are private business entities that provide military or security assistance to states, companies, or other organizations. On the other hand, mercenaries are defined in Article 47 of Additional Protocol I to the Geneva Conventions (AP I). It should be noted that seldom the staff of PMSCs can be considered a mercenary as defined in AP I.
IHL does not prohibit the use of PMSCs and mercenaries during armed conflicts. Nevertheless, two conventions ban the use of mercenaries in armed conflicts: the 1977 Organisation of African Unity Convention for the Elimination of Mercenarism in Africa and the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries. These conventions criminalize not only the resort to mercenaries but also the participation in armed conflicts as a mercenary.
Under IHL, staff of PMSCs and mercenaries as considered civilians. This means that they have no right to directly participate in hostilities and, if captured, they are not entitled to prisoner of war status. In any case, this does not mean that they are never protected under IHL, as they enjoy the protection granted by the Fourth Geneva Convention to civilians.
Just like civilians, PMSCs staff and mercenaries are not legitimate targets unless and for such time as they take direct participation in hostilities. However, this is particularly challenging with regard to PMSCs that have only defensive functions, as it is often the case: how to distinguish between acts of self-defence and direct participation in hostilities?
The question is crucial because PMSC staff is a lawful target only if they take direct participation in hostilities, not during self-defence activities. While the debate is still open, it should be noted that even defensive functions may amount to an armed attack as defined in IHL (Article 49 AP I), and hence qualify as direct participation in hostilities.
Just like all actors present in a country affected by an armed conflict, IHL is applicable to PMSCs staff and mercenaries, who are therefore bound by IHL and are criminally responsible should their conduct amount to war crimes.
Specifically, with regard to PMSCs, the Montreux Document is a non-binding inter-state instrument that aims at guiding states in their use of PMSCs. Furthermore, the International Code of Conduct for Private Security Service Providers (ICoCa) is the only instrument that lists the obligations of PMSCs. The main PMSCs have signed the document and have committed to implementing its obligations.
Generally speaking, PMSCs are not a party to the conflict. As mentioned before, their staff may qualify as civilians taking direct participation in hostilities, should their actions qualify as direct participation in hostilities (Article 51(3) of AP I, Article 13(3) of Additional Protocol II).
The only case when a PMSC could be a party to an armed conflict would be if the company itself started engaging in hostilities as an autonomous party, i.e. not as providing a service to a client. In this case, it would be necessary to assess whether the two criteria required by IHL are met, namely (1) the violence between the PMSC and the adverse party needs to meet the threshold of intensity and (2) the PMSC must be sufficiently organized.
Sgt Russell Gilchrest, US Army, Wikimedia Commons
Several armed conflicts classified in our RULAC online portal see the participation of mercenaries or private military security companies alongside states’ armed forces. Dr Chiara Redaelli, in charge of RULAC and an expert in IHL, answers our questions regarding what IHL says about this phenomenon.
In around 20 pages students of our LLM and MAS in Transitional Justice investigated a subject of special interest to them and deepened their knowledge and expertise through research as well as exchanges with experts, scholars and practitioners.
In this online event co-organized with the ATLAS Network, prominent women in international law will share their experience and advice through an interactive discussion.
This short course, which can be followed in Geneva or online, discusses the extent to which states may limit and/or derogate from their international human rights obligations in order to prevent and counter-terrorism and thus protect persons under their jurisdiction.
This short course, which can be followed in Geneva or online, discusses the protection offered by international humanitarian law (IHL) in non-international armed conflicts (NIACs) and addresses some problems and controversies specific to IHL of NIACs, including the difficulty to ensure the respect of IHL by armed non-state actors.
Resulting from traditional legal research and informal interviews with experts, the project aims at examining how – if at all possible – IHL could be more systematically, appropriately and correctly dealt with by the human rights mechanisms emanating from the Charter of the United Nations, as well from universal and regional treaties.
This project aims at compiling and analysing the practice and interpretation of selected international humanitarian law and human rights norms by armed non-state actors (ANSAs). It has a pragmatic double objective: first, to offer a comparative analysis of IHL and human rights norms from the perspective of ANSAs, and second, to inform strategies of humanitarian engagement with ANSAs, in particular the content of a possible ‘Model Code of Conduct’.