Chapter

Outsourcing war : private military and security companies under international humanitarian law

Yannic Körtgen

Globalization and its impact on the future of human rights and international criminal justice

Cambridge [etc.] : Intersentia, 2015

p. 253-279

English

This article addresses the difficulty of finding legal responsibility in the rapidly growing industry of Private Military and Security Companies (PMSCs). The Montreux Document, the most significant international attempt to address the use of PMSCs, summarizes the relevant international legal obligations and good practices but is not legally binding. Important distinctions, such as when the actions of a PMSC are legally attributable to a hiring state, remain unclear. Article 47 of the 1977 Additional Protocols to the Geneva Convention constitutes the normative basis of International Humanitarian Law (IHL) regarding mercenaries. However, it uses such a narrow definition of “mercenary” that the label is easily avoided. A clarification of status is also necessary as PMSCs rarely meet all the criteria to be considered combatants under the Geneva Convention, but if they directly participate in hostilities they can no longer be given the same protections as civilians. The author suggests addressing the issue of PMSC regulation at both the international and national levels. First, by forming new principles of IHL that include a clear and functional definition of direct participation and hostilities and the creation of oversight bodies. Second, states that hire PMSCs should develop tighter domestic regulation, better parliamentary oversight, and accept broader responsibilities for the actions of their proxies. [Summary by students at the University of Toronto, Faculty of Law (IHRP)]

• Globalization and its impact on the future of human rights and international criminal justice / M. Cherif Bassiouni (ed.)