Peacekeepers or mercenaries? As international relations become increasingly complex, the definition and role of private security contractors dealing with humanitarian crises and conflicts is blurring. European research shines a bright light into this "black hole" of human rights and humanitarian law.
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Faced with humanitarian crises, armed conflicts, piracy and other situations involving security threats, companies, international organisations, NGOs and even governments are turning to private military and security companies (PMSCs) for help. Not only does this challenge the role of the state as the main provider of defence and security, but it raises a number of thorny questions.
Are PMSCs modern-day mercenaries? Does outsourcing security violate human rights and humanitarian law? How are PMSCs and their services regulated at the national, European and international levels? Should Europe play a leadership role in regulating this industry? The EU-backed Priv-War project set out in 2008 to shed light on some of these issues and put forward a set of recommendations to guide policy-making in complex international settings.
Led by the European University Institute (EUI), Italy, the team examined why states resort to using PMSCs, with a focus on defining some rules of engagement and chains of accountability, especially for outsourcing in the context of peacekeeping operations, and the EU's growing international security and defence role.
"We are dealing with a global phenomenon here, not just mercenaries hired for a particular border conflict, but a global industry with a widening impact on the way states manage security and defence," notes Priv-War's lead researcher Francesco Francioni.
The project performed comparative legal analyses to clarify several issues, such as the legal status of PSMC employees in terms of international humanitarian law (IHL), the impact of private military activities on human rights, and the international responsibility and accountability of the corporations involved.
Today, PSMC is something of a "black hole", suggests Mr Francioni, with different or non-existent national regulations. In Italy, for example, it is against the law to provide private military security (PMS) services to other states. "Contractors have recently been put on trial here for their part in the Iraq War," he reveals.
The UK and France are different; they have thriving PMS markets. "This is one of the reasons why we called for a minimum level of harmonisation in our recommendations to avoid market distortion in the field," he adds.
Priv-War delivered 13 recommendations with different options for EU regulatory measures, including a Directive aimed at harmonising the Internal Market for PMS or, alternatively, a non-legally-binding instrument such as a Council Recommendation to help Member States self-regulate PMS, including services delivered in third states.
The recommendations were well received in Brussels at a critical time during the European Parliament's debate and eventual adoption of Resolution 2010/2299 (INI) for a common security and defence policy.
Brought to book?
"With the EU raising its international profile in this area, momentum is building to bring the full weight of IHL to bear on PMSCs, without necessarily demonising or criminalising them," cautions Mr Francioni.
"We know we can't go too far â€ states need them to deal with, say, piracy â€ but we need a framework of principles to make this sort of 'outsourcing' more legitimate, to remove suspicion about the legality of their actions."
The research has produced more than 20 reports on national and international legislation, as well as a range of publications, including the book War by contract, an examination of human rights, IHL and private contractors (Oxford University Press, 2011).
A follow-up book by the Priv-War team, Multilevel regulation of military and security contractors (Hart Publishing, 2012), further expands on the interplay between international, European and domestic regulations in PMSC, and what the EU can do to ensure global compliance with human rights and humanitarian law.
The Priv-War researchers would like to further exploit their independent findings at international and intergovernmental fora, including discussions on a global convention for PMSC ongoing within the Human Rights Council in Geneva.