Unsustainable European regulation of domestic private security and exported PMSCs
Key challenges
The shift in performing defense, military and security duties and services from state to non-state actors poses several important challenges. In accordance with the DCAF paper, they are: the erosion of the state monopoly on the use of force, lack of coherent PMSCs standards, accountability deficit, weakening of national security, practical problems of applying regulatory framework and oversight, higher risks of human rights violations and different types of other abuses. The list of challenges is not exhaustive, of course. Let us examine them one by one.
For many centuries, it has been assumed that the use of force, as well as the protection of the individual, society and world community, is the responsibility of the state. The assumption is enshrined in public institutions, procedures and mechanisms, national legislation and international covenants, day-to-day life, people’s habits, customs and expectations. It is the basic notion of the relationship between an individual or groups of individuals and the state power, as well as between states on the international scene. The existing regulatory framework is adapted to a world where there is a monopoly of the state for the use of force. The US Federal Activities Reform (FAIR) Act of 1998, for example, defines the "inherently governmental functions" as military, diplomatic and other activities which "significantly affect the life, liberty or property of private persons"[6]. The proliferation of PMSCs has eroded this monopoly. But it is neglected by the existing state and world order. It was not prepared for a new situation. A huge gap between the existing regulatory framework and the new practices creates friction, malfunctioning of institutions, vacuum of authority and lack of legitimacy. It must be filled in or reduced.
Outsourcing of state functions is likely to weaken the ability of the state to guarantee internal and external security to its citizens. Business competes with the state and international collective security organizations for professionals, managerial performance and scarce resources. And it is better placed to win the competition. Jobs for former, or even current, policemen, soldiers and officers are created in the private, instead of public, sector. Young people and well trained professionals consider them much more attractive, or, perhaps, they don’t have any choice. The state is left without so much needed workforce. The mass exodus strains the remaining police and military forces. Efforts to build an effective state are hampered[7]. The will of the state to improve its abilities to provide defense, military and security services of high quality to its population is watered down. It has to rely on PMSCs more and more.
In contrast to the state security providers, PMSCs are not directly accountable to public oversight[8]. The responsibility of the state for these actors is often lacking or unclear[9]. The wrongdoings committed by them are not suppressed appropriately. All these three deficits undermine the democratic foundations of society. They are detrimental to weak states, and they damage the cause of democracy in general creating an atmosphere of impunity and selective application of law, as well as legal uncertainty.
When PMSCs are in operation instead of the state forces, the risks of wrongdoings, abuses and human rights violations are higher. The official position of the US and Canada, for example, is that the governments are not automatically obliged to provide protection against the violations committed by PMSCs and their personnel abroad.
None of the current laws or standards seems to be applied to PMSCs activities when a contractor of one nationality is hired by an entity of another nationality to work on the territory of a third nationality, etc. There are difficulties in conducting investigations of alleged violations abroad. The same goes for criminal trails. Criminal investigators may have neither resources nor ability to properly collect evidence within the sensitive time-limits and the chain of custody requirements for criminal trials.
The terms "private security companies", "private military companies", and "PMSCs" are largely used but nobody knows exactly what they actually mean. Especially now, when PMSCs happen to be often involved in guarding and servicing legitimate military targets or even directly participate in hostilities and armed conflicts. Thus, some authors define "private military companies" as businesses offering specialized services related to war and conflict, including combat operations, strategic planning, intelligence collection, operational and logistical support, training, procurement and maintenance[10]; and the "private security companies" as offering guarding services, electronic security, sensor and surveillance, and intelligence and risk management services[11]. But in real life this distinction is not so obvious. Many PMSCs, especially large ones, do not comply with it. That is why the Report has embraced another approach to their classification. It suggests considering PMSCs in terms of the legal framework that may be applied to them and the likelihood of the use of force or involvement in hostilities by the private contractors. The following three broad distinctions are proposed: 1. Those contractors who are contracted to perform duties requiring the use of the threat of a deadly force are distinct from those who are not. 2. Those contractors who operate within the context of an armed conflict within the meaning of international law and those who operate within the conditions not reaching this threshold. 3. Those contractors who operate in an area of instability, such as designated by "the UN security phase of 3 or higher"[12].
To the key challenges enumerated in the Report a few others could be added. To my mind, the crucial one is that the shift of defense, military and security services from the state to private business does not solve either the problem of security personnel shortage or the problem of state and international security.
At the national level, it creates a situation when better protection of a minority of the population is achieved at the expense of a majority. Though even the minority does not seem to be protected well enough considering a large number of rich persons and officials killed under suspicious circumstances. The state efforts to combat criminality and organized crime lack consistency and do not provide an adequate level of protection and security to society. This is detrimental to the quality of life and undermines prospects for economic development. Insecurity creates a growing demand for alternative schemes of protection. More and more people start working for PMSCs. It drastically diminishes the productive potential of a nation and adds nothing to its security. Even worse, PMSCs are likely to be involved in unlawful activities, and they are interested in a growing market for their services. We are in a classical situation of a vicious circle. And it is tremendously difficult to get out of it.
The same happens at the international level. Instead of seeking a lasting peace, stability and solutions which could benefit all parties concerned, the international community merely freezes conflicts. Instead of improving its capabilities to cope with future emergencies, it increases its dependency on PMSCs. Instead of installing law and order in weak states and remote areas of the globe, it brings suffering, humiliation and impunity. Though, of course, there are some indications to the contrary.
Unsustainable European regulation of domestic private security and exported PMSCs
As is stated in the report, no single model for regulating domestic PMSCs exists in Europe[13]. On the contrary, European states have adopted different approaches. It is partially due to historical, cultural, political and legal factors and, partially, to specific security situations prevailing in them.
The previous research conducted for the Council of Europe[14] identified four distinct domestic regulatory approaches in the region. In Cyprus and Serbia, private security forms an unregulated industry with unclear relationship with the public police. In Austria and Germany, a general commercial regulatory framework, which does not grasp their peculiarities, is applied to PMSCs. In Bosnia-Herzegovina, Italy, United States and Switzerland, regulation of PMSCs is decentralized. Only some European states have adopted a special legislation. They are Ireland, Great Britain and the Netherlands.
Though the specific form and content of the regulation varies from state to state, domestic regulations tend to deal with the following aspects of PMSCs: links between private and public security providers; control of PMSCs, their entry into market conditions; selection, recruitment and training of private security personnel; their identification; use of firearms and search and seizure of PMSCs. In some European states, e.g. Cyprus, Czech Republic, Finland, Germany, GB and the Netherlands, PMSC employees have no more powers than any other citizens. In other states, like Latvia, the situation is a little bit different. In Denmark, France, GB, Ireland and the Netherlands, PMSC employees are prohibited from carrying and using firearms. In other states, they are allowed to do both under special circumstances.
Various states have supervising institutions which monitor PMSCs activities[15]. In some states, e.g. in Denmark, Greece, Hungary and Slovakia, PMSCs come under control of the local police. In Germany, Italy and Sweden, local civil authorities are responsible for controlling the sector. The Ministry of the Interior controls PMSCs activities in the Netherlands, Poland and Slovenia. The Ministry of Justice monitors them in Luxemburg. And only GB and Ireland have established specialized security authorities for the purpose of supervision.
Oversight is exercised in different manners. Each country decides whether yearly reports are enough, or inspection visits on the spot are needed, whether the supervisory bodies act on request or on a permanent basis, what triggers investigations, and what sanctions for punishing wrongdoings could be applied.
Several states have adopted laws which apply to their own nationals extraterritorially, introduced provisions of international humanitarian and criminal law in their internal legal order and entered bilateral agreements with third countries seeking military help, thus creating an additional legal framework which is of relevance for regulating PMSCs in cross-borders operations. But with some important exception, most of these laws were never intended to apply to private providers of defense, military and security services.
In principle nothing is intrinsically bad with a situation when a visiting state has its armed forces and its PMSCs present in the territory of a third country on a request of its legitimate authorities and foresees an extraterritorial application of its legislation. This legislation may be well elaborated, fair and modern and create conditions for lawful conduct[16]. It could be even beneficial for everybody in case of a civil war in the region or internal law and order swept away by an ongoing conflict. Under such conditions, it is not the current lack of legislation applicable to PMSCs on the ground that is a problem, but the lack of enforcement of extraterritorial legislation of a visiting state potentially applicable to PMSCs.
First of all, the civil and military authorities of a visiting state do not know and do not understand how domestic legislation can be practically applied to PMSCs. The legislation was not drafted with PMSCs in mind. It has neither PMSCs owners, nor their personnel as its main target. It was drafted based on the assumption described above, i.e. that defense, military and security services must be provided by public bodies, such as the state armed forces. In addition, there are no effective supervision procedures and mechanisms for proper investigation and trial/prosecution of alleged violations committed abroad. Investigations conducted abroad are too expensive. Domestic tribunals do not have capacity to perform them. But the main reason for the impunity of PMSCs abroad is, as is stressed in the Report, the gulf between the "law on the books" and "law in action"[17]or, perhaps more bluntly, an absence of "political will to investigate and prosecute cases of criminal misconduct by contractors"[18].
In addition, there are even greater difficulties in applying to them international humanitarian and criminal law provisions, contained in the Geneva Conventions of 1949, the International Criminal Court Statute, Additional Protocol I to the Geneva Conventions of 1949, and the International Convention against Recruitment, Use, Financing and Training of Mercenaries of 1989 (UN Mercenary Convention), as well as pertinent rules of customary international law. Here are a few examples. The Geneva Conventions of 1949 are applicable to PMSCs if they directly participate in hostilities or are incorporated into the state forces and what is going on in the region is qualified as an armed conflict. But there are no contracts inviting PMSCs to participate in hostilities. A common understanding of the kinds of activities constituting direct participation in hostilities is much debated. As of today, the ICRC has held four inconclusive Expert Meetings on the Notion of Direct Participation in Hostilities[19]. The incorporation of PMSCs in their military or other forces runs counter the intentions of the states. It means that one of the two conditions is very difficult to prove or testify. Theoretically, the qualification of an armed conflict is less controversial. In practice, it is not the case. Common Article 2 defines an international armed conflict as any declared war or armed conflict between two or more states, even if the state of war is not recognized by one of them. The threshold to determine the existence of an international armed conflict is quite low, requiring neither a high intensity nor a long duration[20]. Common Article 2 also applies in "all cases of partial or total occupation of the territory" of a state. Non-international armed conflicts are distinguished from riots and other less serious internal disturbances by a higher threshold of intensity and duration. On paper, everything is clear and obvious. The US invaded Iraq. American troops are stationed there. They exercise authority over the territory. Military operations continue. So, it means that we are in the presence of an international armed conflict, aren’t we? The answer is no, we are not. On June 30, 2004, the US-led Coalition Provisional Authority transferred power to the Iraqi interim government. It changed nothing in the situation on the ground. Nevertheless, the US and the Multinational Forces are considered now to be present in Iraq at the invitation of the lawful Iraqi government, and do not constitute invading foreign forces.
The notion of mercenaries is even more difficult to apply, though some experts argue that PMSCs are just a more organized and modern form for recruiting, using, financing and training private fighters[21]. Article 47[22] of the Additional Protocol I of 1977 to the Geneva Conventions of 1949 deprives them of the status of combatant or prisoner of war, should they be captured by enemy forces. The UN Mercenary Convention gives some teeth to this provision by criminalizing the very act of being a mercenary[23]. But it helps in no way to overcome shortcomings of the definition contained in Article 47. The term "mercenary" is defined in it by six cumulative criteria. According to Article 47, a mercenary is any person who: (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation, substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) is neither a national of a Party to the conflict nor a resident of the territory controlled by a Party to the conflict; (e) is not a member of the armed forces of a Party to the conflict; and (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces. This definition is considered nearly by everybody as "unworkable"[24]. Never has it been successfully enforced or invoked against an armed non-state actor[25]. At the same time, Article 47 and the UN Mercenary Convention keeps PMSCs nervous, urging them to lobby elaboration and adoption of effective, enforceable regulation and accountability of the industry they represent.
As is stated in the Report, at present time PMSCs constitute one of the most influential force supporting ongoing efforts to promote dialogue on how to ensure respect for humanitarian and human rights law and improve international regulation on private providers of defense, military and security services, including the Swiss government and ICRC PMSC initiative, the co called "Swiss Initiative"[26]. This initiative resulted in the "Montreux Document", which reaffirms international legal obligations as they would apply to PMSCs and offers good practices for states to aid them in fulfilling these obligations[27]. The Document was endorsed by the High Level Meeting of Legal Advisers of participating governments in mid-September 2008. It was applauded by the PMSC industry. The conclusion drawn in the Report is that the international community should seize the opportunity. "Alienating representatives of PMSC industry could dampen the momentum for international regulation to the point that it does not materialise"[28].