Russia recently stepped up in support for the Wagner Group, a private military company (“PMC”) involved in Libya’s ongoing military conflict. These PMCs are particularly problematic, given the public-private partnership model they operate on with Russia, which serves as low-risk and high reward in terms of strategic intervention. The concept of ‘war as business’, has been a common occurrence and private forces have often played a major role in galvanising state authority. International humanitarian law (“IHL”) (and law, generally) thrives on the public-private distinction, where states are traditionally seen as bearing a monopoly over the legitimate use of force. Nevertheless, in the era of globalisation, capitalism, and the emergence of trans-national corporations, such a distinction oversimplifies the complex relations and forms of authority today. 

Rather than suggesting a “return of the private,” it is crucial to realise that the private never quite left the realm of the public. In this context, there are two key themes that this post will address — first, the complex framework concerning the paradigm shift in technological advances that has posed significant hurdles for the body of IHL to apply. Second, it puts forth an argument to consider the necessity of regulating the role of PMCs in the era of humanitarian intervention, looking at concrete instances of their deployment. 

Pax Technologica and IHL

There has been a lot of talk about the 21st Century being the era of Pax Technologica — a techno-utopian model that assumes technology to be the solution to  armed conflicts globally. While this is particularly relevant given that this is the era of supreme technological innovation at an extremely rapid rate, it is indeed too utopian to digest (see here for a critique of Lethal Autonomous Weapons and IHL), given the concomitant shift in the authority of deciding aspects of peace and conflict. To scratch the surface, an unmanned aerial vehicle operated by a private military contractor would make the application of IHL murky. There is no question of hierarchy or organisation within the armed group (where the ICRC requires a “minimum amount”). This is primarily owing to the nature of operation of PMCs, and the technological advancements that do not require these operators to be physically present in the zone of conflict. Thus, an “armed conflict”, as it is currently defined, cannot arise; and yet, there certainly are severe consequences of their military operations, which could otherwise meet the threshold for the application of IHL).

Further, the very development of cyberspace has led to the privatisation of violence, where non-state actors have a major role to play. Take, for instance, private companies that work on risk-based systems for security of states. These primarily use data that may seem unconnected, to form correlations that are distinctive to the domain of security. Amoore argues that these ‘data derivatives’ find meaning in seemingly insignificant aspects of our lives, trying to probe into potentialities of violence, but they ultimately forget the subject or their individual (and personal) motivations. Further, they trickle into our private lives, analysing — credit card bills, country visits, religious inclinations, etc., — to infer if we are a threat in the public sphere (read more here). 

In addition to these aspects of technology, one needs to consider the spatial temporal irrelevance of data.  Specifically, the idea that digital data currently is not constrained by physical boundaries, and can freely transcend boundaries from one nation to the other carrying potential cyber threats. Given this, it is crucial to realise that ‘cyber-crime’ bears the capability to pose an equal threat to security from any geographical location. This autonomous nature of technology  significantly problematises IHL’s current emphasis on territoriality. Often, states themselves hire individual software experts to damage critical infrastructure or harness software vulnerabilities of enemy states. The Chinese People’s Liberation Army (PLA) Unit 61398 and Israeli Defence Forces Unit 8200 are notable examples of such electronic warfare units, which have severe consequences in the absence of the proximity requirement for attacks or threats. 

In this context, there arises the fundamental question of when, if at all, IHL protection would begin to apply in cases of cyber-attacks. There is general agreement that wherever a cyber-attack has kinetic-like effects, i.e., causing physical destruction of military or civilian objects, an armed conflict in its traditional threshold would arise. However, what happens where there is no “physical” damage, and the attack is limited to the virtual realm? The ICRC, expressing concerns over potential impacts of cyber-attacks to essential civilian objects such as electricity and drinking water, highlights that “disabling” civilian objects, even if through cyberspace, should lead to an armed conflict arising. Beyond this, there is a lack of clarity on where state practice could lead in situations where data itself is made the object of an “attack”, for instance, if the attacker deletes or modifies data in a way that disrupts a State’s economy. Lacking cyber-specific norms, the existing body of IHL seems inadequate to address these concerns.

PMCs and Legal Regulation: International Armed Conflicts and the Montreux Document

The Wagner Group, created in May 2014, has allegedly been involved in conflicts in Ukraine, Syria, and Libya, regions in Sub-Saharan Africa, and also in Nicaragua. As a quasi-private organisation, it has been linked to several interventionist military operations, including front-line combat. It is critical to note that under IHL, only members of armed forces may participate in hostilities. As per Article 43 of Additional Protocol I (“AP I”), these PMCs would not qualify as ‘combatants’ in international armed conflicts. IHL makes a clear civilian/combatant distinction, and (generally) members of armed forces qualify as combatants. The issue that emerges with PMCs is that, while they are hired by a particular state and act ‘on behalf of the party to the conflict’, they are not “responsible,” in terms of being subject to the military chain of command. Consequently, given their exclusion from the purview of the legal framework, they would not be responsible to Russia, allowing them to maintain deniability in the region of Libya. 

Additionally, Article 47 of AP I provides the six criteria for a person to be considered a mercenary. These criteria have often been criticised for being too unworkable to even consider the inclusion of PMCs. The consequences of even satisfying them would merely remove the outright denial (as opposed to providing a right) of privileged combatant status in international armed conflicts. Each of the criteria considered under Article 47 pose a distinct difficulty in categorising PMCs as mercenaries. These include issues associated with proving mixed motivations before a court of law, such as accounting for  (i) monetary gain, and (ii) the sense of “adventure” in engaging in military activities. Moreover, there are hurdles associated with the criteria of nationality and residence of these private contractors, since they are employed with companies incorporated in different countries. To consider the Wagner Group alone, it has been observed that armed personnel in Libya are from countries like Belarus, Serbia, Ukraine, and Moldova.

Thus, the present framework of the IHL surrounding the Geneva Conventions and AP I do not adequately provide for accountability. This is critical where contemporary conflicts, including those in Iraq, Afghanistan, Latin America, and Pakistan, have seen the rise and deployment of PMCs. Their current operation is beyond the pale of legal regulation. In this context, there is a necessity to advocate for a robust mechanism that regulates and ensures that there is a structural basis for the application of IHL.

Some propose for states and other key actors within the humanitarian system to work on codifying rules and clarify norms concerning their conduct. In fact, the Montreux Document recognises that certain well established rules of international law apply to private security service providers of states. These include norms of customary international law, human rights law, or binding international agreements concerning the contracting states. Though it is a non-binding instrument, it provides for ‘good practice’ in operationalising respect for international humanitarian law by PMCs and States. 

Concluding Thoughts 

While it is true that there are legitimate ethical concerns surrounding the use of PMCs themselves, including the very real potentiality of neo-colonialism. Some argue for disregarding PMCs altogether, as they operate solely for motivations of profit, and not due to any patriotic concerns or to improve human conditions. However, neither do States. The United States serves as the case on point for war profiteering. The Iraq War has been criticised extensively as it saw the contract to rebuild war-torn Iraq awarded to a Texas construction company, Brown and Root (a subsidiary of Halliburton). Further, the US has been backing Saudi’s coalition that has had devastating impacts in Yemen, associated with the widespread humanitarian crisis in the region. The arms dealing in the region has certainly contributed in terms of profits accruable to the United States, as a consequence of their engagement.

With States themselves being engaged in war profiteering, and taking significant strides in terms of their interventionist approaches in pockets of the globe, there is a need to significantly rethink ethical conundrums such as ‘patriotism’ as a viable metric to judge military intervention. The concept of warfare as understood today has drastically shifted. No longer are the principles of IHL that draw a distinction between public and private (or even those of state actors and non-state actors) sufficient to explain the complex state of affairs today. Techno-managerial shifts, the existence of metadata that virtually collects patterns of behaviour, and the shift in technology being autonomous has changed the field. These devices are not just routinely employed by the state, but also by other actors. In contemporary times, one must not only consider States as active participants in war. Rather, one must also consider the accountability of private contractors who have a significant impact on the lives of civilians for crimes committed abroad.

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Mahima Balaji is the Director of the Jindal Forum for International and Economic Laws.

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Image: NYTimes