Private Military Companies:
Accountability Under
International Law
Margaret Zimmerman
ISISC
War is far too important to be left to the generals…
…it is also far too important to be left to the C.E.O.s.
-P.W. Singer
History of Military Privatization
1294b.c.
334b.c.
Ramses II
Battle for
Kadesh
1000b.c.
King David
Israel
1400s
Medieval Era
Alexander
the Great
270b.c.
Persian
Invasion
Siracusa
Kings
Mamertimes
Basil II
Varangian
Guard
1775-1783
1066
Swiss
Mercenaries
Renaissance
William the
Conquerer
France, Spain,
Italy
Italian CityStates
Norman
Conquest
British
Condottieri
American War
for
Indepenence
Modern Privatization
•
•
•
•
•
1916-1928 – Chinese Warlord Period
1941 – Roosevelt’s Flying Tigers
1960-1965 – Congo
1967-1970 – Nigeria Biafra
1970s – Angola (FNLA v. MLPA)
▫
JohnBanks
• 1990s – Angola (MLPA v. UNITA)
▫ Executives Outcomes
• 1990s – Sierra Leone
▫ Gurkha Security Guards
▫ Executive Outcomes
• 1990s – Bosnia and Herzegovina
▫ Executive Outcomes
• 1990s-2009 – Iraq
▫ Blackwater
• 2000s – Democratic Republic of Congo
▫ Omega Security Solutions
▫ AQMI Strategy Corp.
• 2000s – Israel
▫ Colombian forces
→Also appear in Iraq, Tajikistan, Azerbaijan, Kashmir, Georgia, Zaire,
East Timor, Papua New Guinea, Chechnya, Equatorial Guinea
Mercenaries under International Law
Hague Conventions
Geneva Conventions
UN Charter & Resolutions
Additional Protocol I
Organization of African Union Resolutions
OAU Convention against Mercenaries
UN Mercenary Convention
Hague Conventions (Hague V) - 1907
“With a view to laying down more clearly the rights and duties of
neutral Powers in case of war on land and regulating the position of
the belligerents” – Preamble
• Distinction between allowing recruitment & voluntarily
joining
• Article 4 – state may not allow formation nor
recruitment
• Article 6 – no duty on state to prevent individuals
traversing borders (limits the obligation)
→ States must prevent domestic mercenary
recruitment but not required to outlaw per se
Geneva Convention III - 1949
• Art. 4 – specifically does not mention PMCs in
extending POW status
• Debate →
▫ Commentary on Geneva Conventions – silence
amounts to lack of consideration of PMCs
▫ Modern Scholars – purposeful exclusion
→ States required to hold PMCs accountable
for grave breaches but no criminalization
UN Charter & Resolutions
• Charter – limits use of force
▫ exceptions – individual or collective self-defense in the face
of an armed attack
• UNGA Res. 2131 (1965) – forceful defense of
sovereignty but no mention of mercenaries
▫ may be construed to apply to PMCs and prevent unlawful
intevention (beginnings of ‘intervention law’)
▫ unaminously adopted by 109 member states
• UNGA Res. 2465 (1968) – criminalizes and outlaws
mercenaries, non-binding aspiration of customary inter’l
law – condemns state toleration
▫ only applies to post-colonial wars of nat’l liberation
▫ 53-8-43
UN Charter & Resolutions
• UNGA Res. 2625 (1970) – proscribes only State sponsorship not
prevent from recruiting – no mention of nat’l liberation movements
▫ providing contractors for non-state actors wholly
acceptable
• UNGA Res. 3103 (1973) – reinforces nat’l liberation movements
– reaffirms domestic punishment as criminals but without state
practice remains outside customary inter’l law
▫ client of a racist regime that suppressed self-determination
movement then go against 3103
▫ 83-13-19
• UNGA Res. 3314 (1974) – all State use of mercenaries for unjust
force violates UN Charter – context irrelevant – individuals not
mentioned
▫ adoption by consensus – customary inter’l law
• 1987 – establishment of Special Rapporteur
UN Charter & Resolutions
• UNGA Res. 151 (2007) – reiterated past
resolutions and reaffirmed the work of the
Working Group (est. 2005) who works with
gov’ts, IGO/NGOs and PMCs to -
▫ draft Model Law
▫ identify elements for a draft convention on
PMCs
▫ elaborate on existing legal gaps
▫ monitor mercenary-like activities
worldwide
UN Charter & Resolutions
→ States must not organize, encourage or send
mercenaries in acts of armed force against
another State – context irrelevant
→ States may tolerate mercenary use of force
against another State
→ Working Group & OHCHR tasked with
examining trends & proposing accountability
mechanisms
Protocol I - 1977
• Working Group & Committee III – political
compromise - discourage but not regulate
mercenaries (Nigerian proponents)
▫ Developed: “whatever their faults and their moral
destitution” they should have these fundamental
guarantees
 Holy See, US
▫ Developing: “odious ‘profession’ of paid killers”
 Nigeria, Libra, Zaire, Cuba, Syria, Soviet Union
▫ focus from 1950-1977 - 3000 years of history
ignored
Protocol I - 1977
• Art. 47 DOES –
▫ defines mercenary
▫ characterizes as unlawful combatants (remains outside
customary inter’l law)
▫ denies fundamental freedoms of Art. 75 – no POW status
▫ encourage domestic regulation criminalizing mercenaries
▫ establish motivation and compensation criteria
• Art. 47 DOES NOT –
▫ examine the status of mercenaries
▫ criminalize mercenarism or recruitment of
▫ prevent States from incorporating mercenaries into armed
forces bypassing application of Art. 47
Organization of African Unity
• 1967 – Resolution Regulating Mercenaries
▫ condemnation and encouraged domestic measures
• 1971 – Declaration on the Activities of Mercenaries
▫ mobilize global opinion towards eradication of mercenaries
▫ end colonialism in Africa which allows mercenaries to
prosper
• 1972/1976 – Draft Convention for the Elimination of
Mercenaries in Africa
▫ defined mercenary without motivation
▫ identified individual and State responsibilties
▫ criminalized recruitment and mercenarism
International Convention Against the
Recruitment, Use, Financing and Training of
Mercenaries (OAU) - 1977
Status – unlawful combatants – not POWs
Definition – nearly identical to Protocol I
Criminalizes – mercenarism & related
offenses
•
•
•
▫
disparity between definition of mercenary &
crime of mercenarism
ex: Former Legionnaire – no recruitment, fights
for profit in non-post-colonial situation



assists rebels but not to overthrow/destabilize gov’t
contract with MOD??
UN Mercenary Convention – 1989
• Definition – broader than OAU & Protocol I
▫ lowers threshold requirements for being a
mercenary
▫ lower compensation threshold (comparison to
native counterparts)
 massive evidentiary problems in terms of
prosecution
▫ maintains motivational component
 volunteer fighting for ideology that is racist or favors
alien domination = not mercenary
UN Mercenary Convention – 1989
• Criminal Liability – mercenary who directly
participates, accomplice, attempts or anyone
recruits, finances, uses or trains
▫ States criminally liable?
• State Obligations – affirmative duties
▫ generally prohibit mercenary activities
▫ specifically prevent if intended to oppose selfdetermination movement
 Something more than just domestic legislation?
UN Mercenary Convention – 1989
→ Entry into force 2001 with 22 States
→ 32 ratifications to date
▫
most recently Syria in autumn 2008
→ 6 original OAU states to urge & sign:
▫ Cameroon – only one to become a party
▫ Angola & DRC – used mercenaries since
→ Nigeria (proposed Art. 47 & UN
Convention) not a state party
Are Private Military Contractors
Mercenaries?
Organization
Motivation
Recruitment
Independence
Services
PMCs
Mercenaries
Permanent
Corporate Structure
Temporary
ad hoc soldier groupings
Business profit
Individual profit
Public & Specialized
Circumventive
Corporate holdings
financial markets
contractual obligations
Not integrated into nat’l
force
no contractual obligations
Wide range
expansive clientele
Combat service
single clients
Applying Conventional Mercenary
Instruments to PMCS
• Art. 47 Protocol I - generally not meet requirements
▫ recruited for armed conflict
 logistic services, protective detail
 Executive Outcomes not likely to be repeated
▫ direct participation
 offensive/defensive is participating but probably more than
self-defense or defense of third persons
▫ citizen of state not party to conflict
 not always the case – particularly in Iraq
▫ motivation
 ie: prosecutor would have to compare to motive for those in
regular army which is not just health benefits & ideology
Applying Conventional Mercenary
Instruments to PMCS
• UN Mercenary Convention – irrelevant and
freely ignored
▫ motivation
 contracting solely for financial gain
▫ particular recruitment
 Not recruited for concerted act of violence to
overthrow or undermine a state
Is Absolute Prohibition Possible?
1. contradicts 3000 years of history
2. lacks political will
3. wholly unenforceable
4. without global prohibition creates further problems
Holding PMCs Accountable –
International Options
• State Sanctions – through inter’l community
▫ legal sanctions against employing State
▫ waiver of objection to extradition to universal
jurisdiction State
▫ legal recourse to ICC or ad hoc tribunal
• UN Rapporteur/Working Group – expand
mandate
▫ universal proposed domestic legislation
▫ universal licensing scheme where the UN then
hires companies
Holding PMCs Accountable –
Domestic Options
• Litigation –
▫ Corporation - go after parent corporation based on
negligence
 corporation’s duty to care v. crime committed
▫ Individual – military or civilian courts






detecting violations
jurisdictional issues
evidentiary mountains to climb
political question doctrine
government contractor immunity
liability – superior responsibility, JCE, complicity of CEOs
Holding PMCs Accountable –
Domestic Options
• Contracual Method – forces the client to monitor and
ensure compliance – would this wipe out any efficiency
gained through PMCs?
▫
▫
▫
▫
corporate structure – duty to care
incorporate domestic laws into contracts
enforcement mechanisms – judicial review?
reporting requirements
• Institutional Change – cultural, organizational,
professional norms – industry wide
▫ licensing schemes that are not self-imposed
▫ sanctioning for non-compliance
▫ codes of conduct (force adoption of IPOA code) – selfregulation
▫ external independent monitor (ex: ABA, AMA)
Montreaux Document – 2008
• 28 States support – limited to armed conflict – many do
not apply those provisions already in place
→ Applicable Legal Obligations
• State obligations remain and must apply IHL & HRL
(Hague, Geneva, Protocol I, UN Convtn)
• PMCs must respect nat’l laws, IHL, HRL
• notes superior liability of gov’t over PMCs
→ Best Practices
• establishes criteria, procedure, terms of contracts
• creation of monitoring & authorizing mechanisms
A target at the end of the scope….
• Definition – (individuals & acts) perform mercenarylike activities but fall outside the definition
▫ profit motive irrelevant
▫ nationality & residencey irrelevant
▫ accountability based definition
• Political Will – lack of it to limit mercenary-like
activities
▫ strong & weak states acknowledge benefits of PMCs &
efforts to reduce are shams
• Inter’l Law – inter’l community advocates against
mercenaries yet since Cold War practice has increased
▫ Can Working Group overcome the UN beauracracy in a
reasonable timeframe?