INTRODUCTION
The onus of catering to security needs and providing for military support has historically been on the State. However, with the advent of globalisation, the borders have become increasingly porous and fragile. As a result, the role of the State and International Organisations in resolving any armed conflict or post-armed conflict has started shifting from a State/Organisational centric approach to a privately controlled one. The latter includes what we now call as ‘Private Military and Security Companies’ (hereinafter referred to as “PMSCs”), that is, when military and security related functionalities (which formerly were State functions) are delegated to private firms, companies, or entities in the form of a contract. The organisation so formed is referred to as a “PMSC”. Examples include, the Wagner group of Russia, DynCorp and Blackwater of the United States of America (which was deployed in Iraq), the now defunct Executive Outcomes, Sandline Ltd, among others.
After the second world war, the propagation of the notion of the “triumph of capitalism” led to repercussions in the form of globalisation. Countries are more interdependent on one another than they formerly used to be which has created a deep shift in the ambit of security. For instance, in 2011 it was reported by the New York Times that Eric Prince, the former CEO and founder of the then Blackwater Worldwide – now Xe Services, was hired by the United Arab Emirates. The purpose of the same was to create an “independent battalion of foreign troops” for them to be able to safeguard themselves from any ruckus in the overwhelming labour market, defend their oil pipelines, conduct any internal or external secret operations, etc. This shows that even for a relatively powerful country like the UAE, it is quite feasible to opt for private services for protecting itself from both external and internal threats. In modern times, it is uncommon for two nations to get involved in an armed conflict directly. Instead, it is the “other forms” which actually put a country’s security into jeopardy-be it the plausible unrest in the UAE in the crowded labour camps or country’s demand for security for anti-piracy operations. The security needs of nations and requirements have changed. Further, the feasibility is evident due to the profuse dependency of nations on one another in the globalised world order. Therefore, this interdependence of nations has heralded the change in the ambit of security.
The following paragraphs shall lay emphasis upon recruiting these PMSCs for security operations, how the process is different from what used to happen formerly and lastly, the accountability of these companies under International Criminal, Humanitarian and Human Rights Law.
MERCENARIES, A PRELUDE TO PMSCs
States and International Organisations have now taken control of these PMSCs by recruiting and deploying them for armed operations or in any matter relating to providing security, for instance, in peacekeeping operations, armed conflict, post-armed conflict interventions, anti-piracy operations, etc. The history of recruiting PMSCs dates back to the time period between 12th and 16th century, when these military service providers were unregulated, uncontrolled, individual workers deployed in the times of war merely for the purpose of gaining money. These centuries old private recruiters called as mercenaries, the shibboleths of war-times are even heralded as one of the oldest professions. Some even believe that the origins of Mercenaries dates back to the preclassical period in Greece.
Even PMSCs work on the ground of profit generation, then how are PMSCs different from mercenaries? What becomes imperative to take note of is the “blurred line” of differentiation between mercenaries and PMSCs. It was in the year 1977, Protocol I Additional to the Geneva Conventions, the International community conceded to define mercenary (Article 47). In 1989, the United Nations adopted the International Convention against the Recruitment, Use, Financing and Training of Mercenaries after a prolonged period of negotiations. The said Convention provides for a comprehensive definition of mercenaries. Article 1 of the same entails (as succinctly comprehending) any individual’s involvement to a conflict merely for the sake of monetary gains.
The said Convention also criminalises usage, recruiting, training or financing of mercenaries. Unfortunately, there is no comprehensive definition for PMSCs as such. However, a general consensus which differentiates mercenaries from PMSCs is the involvement of State/International Organisations while granting contracts to the Private entities for security via a licensing agreement. Unlike mercenaries, which used to be arbitrarily deployed by Private entities from any foreign land merely for the sake of exchange of money in return for getting them to fight for defence forces in the times of wars, PMSC personnels, though owned and controlled by Private companies, when deployed for security purposes, are granted licence by the State which hires them or where these PMSCs are registered.
A CONVOLUTED STRUCTURE OF RECRUITION
When we say PMSCs are granted licence for their deployment, we need to understand the way these PMSCs are recruited as well as the purpose for which such a hiring happens.
Firstly, dealing with the question as to who recruits these PMSCs; it actually depends upon the kind of operations these PMSCs are supposed to get indulged into. For instance, if there is a proxy war, then there would be more than two nations involved in a conflict. It can be the foreign nations involved in the conflict in the host state and they may send such recruits to the territory of the host nation. Also, it may be the host nation doing so contemporaneously for the sake of getting protection from such interventions. The same can be done on a contractual basis. Even International Organisations like United Nations is turning to PMSCs for its plethora of missions.
Secondly, it becomes pertinent to note that the when a nation hires these private security companies for security purposes, the country which sends these personnels can be plausibly different from the country where these companies are actually registered. For example, if there is a proxy war in Country A and Country B deploys the PMSC personnel in Country A, it is not certainly possible that such a company is a registered company of Country B only. The PMSC may be a registered company of Country C.
Nevertheless, the predicament lies over deciding as to what is the purpose for recruiting or deploying such PMSC personnel. There can be an omnibus of reasons for the same. It might plausibly be for an armed conflict per se; it may be for a peacekeeping mission or a UN intervention; it may be to tackle proxy wars like those in Afghanistan and Iraq. Excluding the Russia-Ukraine armed war, sparingly do we now see two nations going on a war with each other or against each other. The deployment of PMSCs, therefore, is majorly in unorganised set ups, be it post-conflicted regions, foreign intervention of a nation into the sovereign boundaries of another, etc.
Having established that, it becomes pertinent to realise that PMSCs, as discussed earlier, are recruited by a nation, recruited into a nation and registered into a nation (these three may coincide, but generally don’t) and majorly function in unorganised set-up.
These two-lacunae pointed out i.e., the recruitment process and purpose of deployment, heralds a plethora of loopholes in making these PMSCs accountable under the provisions of International Laws which provide them with a leeway to commit grave human rights violations lest facing accountability for the same. In the light of the same, there is a vacuum created with respect to making the PMSCs accountable for human rights violations committed by them under the International Criminal Law, International Humanitarian and Human Rights Law. The below mentioned analysis throws a light on the same.
APPLICATION OF INTERNATIONAL CRIMINAL LAW
Article 7 of the Rome Statute which lays down the ground for prosecuting “crimes against humanity”, entails that it must be directed against civilian population in pursuant of any “State/organizational policy”. How would prosecution of crime against humanity by PMSCs take place in such a scenario, taking into account the arbitrary nature of deployment of PMSCs without any accountability to the State/Organization. Thus, ICC’s jurisdiction becomes very difficult in such a scenario. Therefore, there is no mechanism as such under international criminal law to prosecute PMSCs in their “corporate capacity”.
Moreover, as mentioned above, the State which sends the PMSCs to be deployed in the host nation may plausibly be different from the one which hosts them, which may also be very different from the State where the PMSC or the private entity is actually registered. Who shall be accountable in such a scenario? What if there is denial of accountability by the both the State which hires them as well as the State where they are registered? This disposition and vacillation of liability happened in the case of determining the accountability of Wagner Group, Russia’s one of the prominent Security providing companies. Russia blatantly denies Wagner Group’s mercenary activities. However, there were allegations against the Wagner Group taking support of mercenaries to fight back Ukrainian men. Civilians were also injured in the Bucha, Donetsk and Luhansk regions. However, not even a single prosecution has happened till date against any of those alleged crimes. Nor has Russia taken the onus of doing so.
Even in the case of USA’s military deployment into Iraq , in a civil litigation (wherein the U.S. appeared as an interested party) as against purported allegations against Blackwater for commission of crimes including heinous killings, murders, injuries, not to mention the Nisoor Square deaths, asserted that the PMSCs were not acting as the employees of the U.S. and that, it was the Blackwater management which had the onus to oversee the management of the day-to-day operations of its employees. In this case as well, not even a single prosecution has taken place against the Nisoor Square deaths in Iraq.
APPLICATION OF INTERNATIONAL HUMANITARIAN LAW (IHL)/ INTERNATIONAL HUMAN RIGHTS LAW (IHRL)
Circumvention of International Humanitarian Law in case of determining the accountability of PMSCs becomes very feasible especially taking into consideration the fact that International Humanitarian law applies to armed conflict inflicted regions and as mentioned-above PMSCs are generally deployed in unstable, unorganised regions (for instance, proxy wars). Moreover, even if there would be a conflict, the government denies the same. In such a scenario as well, IHL’s application would become difficult
For the application of the principles of International Human Rights Law, human rights violations committed by PMSC personnel becomes immune from accountability on two-accounts: Firstly, because of the derogation agreements between nations hiring and deploying PMSCs, which give the State who sends the PMSC protection for the purposes of self-defence, etc. However, such derogation principles are misused. Moreover, considering that IHRL applies only to the States party to the instrument of IHRL, determination of liability in a scenario where a State isn’t the same, becomes next to impossible. For example, in the case of post-conflicted region of Iraq where the United States had deployed close to 1,50,000 PMSC personnel, many of them are accused of grave human rights violations. However, the liability gets very difficult to determine especially because of the “lex specialis restrictions” . Moreover, the USA is also not a party to the Optional Protocol to the International Covenant on Civil and Political Rights and henceforth, victims or third parties cannot even question their actions via the Human Rights Council for redress.
Conclusively, we can say that it becomes complex to determine the liability of PMSC personnel under International Law Principles. Moreover, the State which hires PMSC personnel, that State’s liability also becomes very difficult to be determined. Majorly, the civil laws of the nations which act as the host of these PMSC personnel are also not viable to prosecute neither the private company nor the country which hires them.
CONCLUSION
Taking into consideration the drawback as to who (whether the State where PMSCs are registered or the State which hires them) is to be made liable for the human rights violation by the PMSCs, to what extend (individual liability/corporate vicarious liability/state liability) are they to be made liable and , and, how are they to be made liable (under domestic laws of host nation/ International Humanitarian principles), it can plausibly be opined that the hiring state should be made liable so much to the extent that there exists the corporate vicarious liability of the corporate entity deploying these PMSCs and State’s onus for rehabilitation of victims under both the domestic/civil laws of the Host State and International Humanitarian Principles (if within the feasible jurisdiction). This principle shall cater to the exclusion of non-derogation of International Humanitarian Law and International Human Rights Law via immunity agreements by Hiring State and paucity of accountability of PMSC personnel under domestic/civil law. Therefore, it becomes crucial to emphasise upon all the Host nations to formulate strict domestic/civil legal provisions for PMSC personnel’s accountability.
In order to ameliorate the problem with respect to corruption and hence licensing infringement by PMSC personnel (like what happened with Wagner Group, getting a leeway to contact mercenaries in times of war), there can possibly be a strict licensing policy of providing legitimacy to corporate entity sending the PMSC personnel to host nation at the very nascent stage whilst entering into the contract between the state deploying them and the state where they are to be deployed. Such a licensing should entail: Capping with regards to how many PMSC personnel in total can be deployed so that no additional, without licence, illegitimate deployment takes place. Moreover, capping with regards to arms and ammunition and security equipment to be carried by those deployed PMSCs should be done via such licensing policy.
Lastly, in order to curb the drawback with regards to Hiring State’s liability by taking into consideration the immunity agreements between Host and Hiring State which makes Hiring Nation less prone to liability for human rights violations, there needs to be the complete alienation of the non-derogable principles of International Covenant and Civil and Political Rights including right to life of civilians, crimes against women and children like rape, sexual assault, etc. from the contracts between the State that hires such personnel and the host nations.
Kritika Mehendiratta is a second year B.A. LLB (Hons.) student at University of Petroleum and Energy Studies.
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Jindal Forum for International and Economic Laws 