Rethinking the regulation of private military and security companies under international humanitarian law
Joseph C. Hansen
Host item entries:
Fordham international law journal, Vol. 35, no. 3, 2012, p. 698-736
Presumptively treating the vast majority of Private Military and Security Companies (PMSC) personnel as civilians, although consistent with a general IHL presumption in favor of civilian status, is overinclusive and leads to legal and practical difficulties : it fails to recognize the truly military-like operations of some PMSCs (indeed, some are contracted to perform direct military operations) ; the indeterminacy of the nature and temporal scope of direct participation may prove unworkable in practice ; and personnel taking an active part in the hostilities are chargeable with unprivileged belligerency for duties they may have been hired to perform. PMSC personnel contracted to engage specifically in the type of activity that constitutes direct participation in hostilities should be categorically presumed to be members of organized armed forces and should be required to abide by the requirements of Article 4(A)(2) of the Third Geneva Convention. If contracting States hired PMSCs to engage in contractor combatant activities, a proposed treaty provision would presume the PMSC personnel to be combatants and contracting States would be required to ensure that such contractors abided by the requirements of Article 4(A)(2).