On March 22-24, 2007, the IILJ convened a closed off-the-record workshop held at the Greentree Foundation Estate, Manhasset, New York, with the key objective of discussing the creation of a framework for governance of commercial military and security firms. Participants included representatives from four groups — providers, consumers, regulators, and commentators, including the Director General of British Association of Private Security Companies, Chief of the Promotion of the Humanitarian Agenda Unit at the UN Office for the Coordination of Humanitarian Affairs, a Senior Policy Advisor from Foreign Affairs Canada, Deputy Head of the Section for Human Rights and Humanitarian Law at the Directorate of International Law of the Swiss Federal Department of Foreign Affairs, a representative from the Conflict Issues Group of the British Foreign and Commonwealth Office, the CEO of Triple Canopy, and the Director of Erinys International Ltd., as well as other representatives of the industry, governments, academia and non-governmental organizations.
Regulating the private commercial military sector
Chairman’s Notes from the Greentree Conference on Regulation of Private Military and Security Companies, March 22-24, 2007 (“Greentree Notes”)
Private military and security companies (PMSCs) are companies that provide military and/or security services. The industry is at an early stage of development and there are different views on the appropriate breadth and depth of regulation. The discussion that these chairman’s notes summarize took place in the context of other processes, including the Swiss-ICRC intergovernmental initiative for which there was general support. The following notes outline areas in which there appears to be broad agreement, areas in which action needs to be taken, and areas in which further discussion is required.
The clients of PMSCs include states, intergovernmental organizations such as the United Nations, and private entities such as corporations and NGOs. PMSCs do not operate in a legal vacuum. There are, however, gaps in the applicable laws and problems of implementation due to the unwillingness or inability of states and other actors to operationalize and uphold applicable laws. Parties that contract with PMSCs may remain responsible for actions taken by those PMSCs. The fact that states, in particular, contract out certain activities does not remove their legal responsibilities. States are responsible under international law for the wrongful acts of PMSCs that can be attributed to them. Public international law potentially applicable to activities of PMSCs includes:
- Human rights law: States have direct responsibility for compliance with human rights law. States also have responsibility for protecting those within their jurisdiction from certain types of harm at the hands of third parties.
- International humanitarian law (law of armed conflict): States must respect and ensure respect for international humanitarian law; the acts of all persons — regardless of status — carried out in the context of, and associated with, armed conflict must comply with international humanitarian law.
- International criminal law: Individuals may be liable for crimes under international criminal law such as genocide, war crimes, and crimes against humanity.
- International labour law: States hiring PMSCs must respect relevant international labour law standards.
- Obligations under regional organizations: States may have further obligations through regional organizations, such as the European Union (for example procurement regulations), the African Union, etc.
- Domestic law — including criminal law, civil law, and public or administrative law — of the following states may have an impact on the activities of a PMSC: (a) the state entering into a contract; (b) the state of incorporation or nationality of the PMSC; (c) the state of which its personnel are nationals; (d) the state in which it operates.
- Other norms relevant to PMSCs include (a) international standards on law enforcement and use of firearms;* (b) other international guidelines such as the Voluntary Principles on Security and Human Rights; and (c) industry codes of conduct. These may be sources of binding law if incorporated into domestic law, or included in licensing regimes or contracts.
Further regulation of the private military and security sector should distinguish between the various activities of PMSCs. Development of a regulatory framework must recognize the rights, interests, and/or responsibilities of states and other clients, the industry (including personnel), international and national oversight bodies, and affected communities. Effective state oversight capacity is necessary but insufficient to address all concerns about PMSCs. Self-regulation is necessary but insufficient to address all concerns about PMSCs.
Victims of wrongdoing by PMSCs should have access to a remedy. If a victim does not have access to a remedy in the territory in which the wrong occurred, he or she should have access to a remedy in the state of incorporation of the PMSC or in the contracting state.
Immunity should not normally be granted to PMSCs. Where it is granted, immunity in one jurisdiction must never result in impunity.
States must exercise oversight of contracts for private military and/or security services. States should report on their contracts for private military and/or security services to an appropriate national oversight body, such as a parliament.
Non-state clients of PMSCs (such as intergovernmental organizations, NGOs, corporations) should be transparent in their dealings with PMSCs and develop best practices for such contracts.
A global code of conduct should be adopted.
A short handbook of obligations of PMSC personnel should be drafted and widely disseminated.
Areas for Discussion
There may be limits to the aspects of state authority that may be outsourced. Additional limits on what could be outsourced should be considered. (This is without prejudice to the responsibility of states under international law for wrongful acts that can be attributed to them.)
States should consider enacting laws requiring contracts with PMSCs to include appropriate training, vetting of personnel, provision for insurance, and other terms.
States should consider adopting and implementing extraterritorial jurisdiction over wrongdoing by PMSCs, comparable to jurisdiction asserted over war crimes, human trafficking, and child prostitution.
Consideration should be given to creating an independent body to address complaints against PMSCs. This should not limit access to other remedies.
* See, eg, the UN Standard Minimum Rules for the Treatment of Prisoners (1955); the UN Code of Conduct for Law Enforcement Officials (1979); the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990).