From shadow forces to much-needed experts in new technologies: the role of private contractors in modern warfare

March 25, 2020

Frauke Renz on the legal implications of Private military and security companies.

In February 2018, pro-Syrian government forces attacked an outpost of United States commandos in Syria. During the four-hour assault, 200 to 300 of the attackers were killed by US airstrikes. The conflict in Syria has been raging for years and the assault might therefore not appear that peculiar. Yet, the assailants themselves were. Many of them are believed to have been members of the Russian Wagner Group. This private military company has been involved in many of the Russian foreign military operations and has appeared in conflict theaters from Syria to Ukraine and the Central African Republic. Private military companies such as Wagner Group offer the benefit of plausible deniability and can therefore be considered another quiver in a country’s foreign policy arsenal.

Private actors in warfare are not only necessary when countries want to conduct missions overseas without openly relying on their military forces. Private military and security companies (PMSC) are also relied upon when companies are investing in complex environments. From protecting private and public oil fields to embassies, factories and non-governmental organizations in conflict theaters, there are numerous situations in which private and public actors alike rely on their services.

Even in a country for which the protection of overseas investments and nationals long was a monopoly of the government, China, new investment projects along the so-called Belt and Road Initiative (BRI) have created a market for Chinese PMSCs. After long skepticism of the reliance on PMSCs, Beijing seems to begin to choose Chinese PMSCs over foreign counterparts. This shift comes with the risk that incidents occurring during the operation of the PMSCs lead to a negative public perception backlash. Just imagine a scenario in which Chinese contractors are accused of killing innocent civilians, a Chinese Nisour Square incident. Yet, the reliance on Chinese contractors can also help Beijing increase its influence overseas. Beijing will no longer rely on local governments for support but will be able to buy end-to-end protection provided by Chinese companies.

The role of PMSCs does not end with the provision of mobile and static security for embassies, corporations and aid workers. Private contractors analyze intelligence data, operate unmanned aerial vehicles (UAV) and program as well as maintain weapon systems. This does not render the provision of static and mobile security less important. But it is essential to understand that the phenomenon of the reliance on private contractors during combat operations is farther-reaching than many expect.

The range of services provided by private contractors is not only important with regards to policy considerations. It also raises diverse legal questions. PMSCs do not operate in a legal vacuum, as some authors argue. But the existing regulatory environment is not fully satisfactory to answer the plethora of arising legal questions: Who has jurisdiction if contractors commit crimes? Which country is in charge of investigating the offences and do they fall under military or civil jurisdictions? Are contractors considered combatants? Should states be held accountable for acts of contractors they hire? Is there a minimum standard of compliance to human rights companies have to uphold to be considered reliable partners for governments operating in complex environments? This is only the tip of the iceberg of PMSC-related legal questions. The existing efforts to regulate PMSCs fall short of answering this broad range of questions.

On an international and regional level, the UN Mercenary Convention and the Organization of African Unity Mercenary Convention are the two main conventions regulating, or attempting to regulate, companies falling under the broad scope of the PMSC industry. These conventions are not sufficiently regulating PMSCs for three key reasons:

They fail to answer the broad range of legal questions listed above.
The reliance on the mercenary definition of international humanitarian law complicates the application of the conventions to PMSCs.
Only few countries have ratified the conventions, hardly any which play a significant role in hiring PMSCs or acting as their home state.

Aside from these international regulatory efforts, there are also voluntary and self-regulatory initiatives. A key document is the Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict. The Montreux Document offers useful guidance for states in their regulatory process, but it is not a legally binding document. The International Code of Conduct is another key initiative in this field and formulates human rights responsibilities of PMSCs and establishes international principles and standards. To qualify as members of the International Code of Conduct Association (ICoCA), PMSCs have to be certified to one of the relevant industry standards (ISO 18788, ISO 28007 and PSC.1). These standards are also relevant in the process of public procurement as some governments have included certification to those standards in their procurement criteria.

On a national level, numerous countries have adopted regulation addressing PMSCs. The extent of regulation depends on the exposure of the respective country. Afghanistan and Iraq attempted to limit the activities of PMSCs in their country through regulation after previous experiences with the contractors’ actions. Switzerland, a home state to some PMSCs, focuses on the export of private security services. The United States, a key home and contracting state, has issued a range of provisions addressing among others jurisdictional questions and procurement standards for PMSCs. Yet, even those national regulatory efforts fall short of addressing the full complexity of the evolving range of services provided, the numerous nationals involved in the operations of PMSCs and their presence in conflict zones.

In light of global trends such as increasingly war-weary societies, growing complexity of weapon systems and prevalent state failure, private contractors are there to stay. They enable the operation of businesses and NGOs in conflict zones and thereby fill a security vacuum. Yet, finding answers to the open legal questions is inevitable to avoid that the reliance on private contractors leads further blurs the lines during armed conflicts.