As war is ‘privatised’ should private contractors be regulated at EU level?

The role of the EU in relation to licensing, and regulating, private military and security services needs to be clarified to ensure better compliance with human rights and international humanitarian law (IHL), according to the PRIV-WAR research project. Although in most EU Member States some form of regulation of these services exists, there are important differences among them. Regulatory initiatives have also been launched at the international level. The key issue is whether and how this patchwork of norms can be effectively applied and whether there is a need for additional regulatory measures at the EU level.

Throughout the world, states are resorting to private contractors in situations of crisis or armed conflict, such as Iraq, Afghanistan and West Africa. These firms offer logistical support, security and crime prevention services, military advice and training, and even intelligence gathering. However, the possibility that they could become engaged in combat has raised questions under IHL and human rights law, including the status of private actors under humanitarian law, and the accountability of corporations and their employees.

The PRIV-WAR project, co-ordinated by the European University Institute in Florence, is a collaboration between seven research institutes in Italy, Germany, Latvia, France, the UK and the Netherlands. The project assesses the impact of the increasing use of private military companies and security companies (PMSCs) in situations of armed conflict, and other crisis situations across the globe. It has examined relevant national legislation and judicial practice, for example from the European Union, the United Kingdom, the United States, Australia, Canada and South Africa, as well as regulatory initiatives at the international level, e.g. the elaboration of a Draft Convention on PMSCs in the framework of the UN Human Rights Council, the Montreux Document (2008)1, and the International Code of Conduct for Private Security Providers2(2010) .

The project conducted a dialogue with researchers, practitioners, NGOs, industry representatives, military experts and other stakeholders, to ensure its policy recommendations would benefit from the input of all relevant players.

Its objectives were to promote a better understanding of the phenomenon of the privatisation of war; to clarify the legal status of PMSC employees under IHL; to foster knowledge on the impact of private military activities on the enjoyment of human rights; to analyse the international responsibility and accountability of corporations; to review the criminal and civil liability of PMSCs and their employees for serious violations of human rights and IHL; and to explore ways in which the EU could regulate or facilitate the regulation of PMSCs to assure compliance with human rights and IHL.

Issues uncovered by the research include:

  • Although PMSCs have voluntary Codes of Conduct, these are not sufficient for controlling an activity that goes beyond normal commercial transactions, that may involve lethal force and that may lead to abuses amounting to violations of human rights or IHL.
  • National regulation of PMSCs is unsatisfactory when it does not regulate the export of armed services from the EU to third states, and where the ‘host’ state does not provide sufficient regulation for overseas companies acting on its soil.
  • During the course of the 2000s, the UK Government rejected robust regulatory mechanisms, such as compulsory licensing regimes, in favour of much lighter options of government-backed self-regulation and complementary international norms.
  • In a 2004 survey of the Confederation of European Security Services (CoESS), all but two of the then 25 Member States had specific national laws and regulations regarding private security services. However, these laws do not always cover the export of such services to third states.
  • Private military and security services are not regulated at the European level. Even within the Internal Market, (domestic) private security services have so far not been harmonised. The (few) regulatory measures at the European level which touch upon the movement of goods and related services in the field of security and defence do not regulate, or require EU Member States to regulate, the export of military and security services in their own right.
  • Regulation of PMSCs is a topic for which shared competence between EU and Member States exists in principle and in doing so, the EU must observe principles of proportionality and subsidiarity.
  • Member States have a shared interest in the regulation of PMSCs, without which there is a risk that companies might relocate to countries with more lenient regulatory regimes.
  • A report on US legislation documents the need for better management and accountability, clearer standards and policy, and improved screening and training of contractors as well as tracking of information.

The researchers point out that no EU Member State has yet employed a PMSC in a direct combat role, but they believe there is political support, in principle, for training and education in IHL of relevant groups, such as law enforcement officials and military personnel in third countries, and to prevent violations of IHL by EU Missions.

The main recommendations are:

  • EU regulatory measures related to PMSC companies and their services are necessary in order to ensure better compliance with human rights law (HRL) and international humanitarian law (IHL).
  • The object and scope of EU regulatory measures should include a normative system for the establishment, registration, licensing and monitoring of PMSCs located within the jurisdiction of EU Member States or hired by these states.
  • EU regulatory measures should address the due diligence obligations under HRL and IHL of EU Member States in their capacity as hiring states and home states of PMSCs. As a minimum they should warrant that only registered and properly licensed companies are hired.
  • EU regulatory measures should set minimum standards for monitoring and sanctions to be applied at the level of Member States.
  • EU regulatory measures should also include guidelines on the use of PMSCs in its humanitarian aid operations. As a general rule, they should not be employed unless certain conditions are met.
  • EU regulatory measures should stipulate that the EU and its Member States should ensure that effective access to justice and appropriate remedies are available to victims for injuries suffered as a result of the wrongful conduct of PMSCs personnel.

The full Recommendations for EU Regulatory Action in the Field of Private Military and Security Companies will be soon be available for download on the project website – see:
http://priv-war.eu.

 

1 See: http://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf

2 See: http://www.news.admin.ch/NSBSubscriber/message/attachments/21143.pdf

PRIV-WAR – Regulating privatisation of ‘war’: the role of the EU in assuring the compliance with international humanitarian law and human rights (duration: 1/1/2008 – 30/6/2011. FP7 Socio-economic Sciences and Humanities, Activity 4 “Europe and the world”, Research area 4.2 “Conflicts, peace and human rights”. Collaborative project (small and medium focused research project).

See: http://priv-war.eu

Contact: Francesco Francioni, francesco.francioni@eui.eu; Christine Bakker, Christine.Bakker@EUI.eu