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Contemporary challenges to IHL – Privatization of war: overview
29-10-2010 Overview
In recent years, parties to armed conflicts have increasingly recruited private military and security companies to undertake tasks traditionally carried out by the armed forces. The involvement of these companies in or close to military operations has raised questions about the way IHL should be applied.
The involvement of private military and security companies in warfare is not new. However, in recent armed conflicts their numbers have increased significantly and the nature of their activities has changed, leading some commentators to speak of a growing “privatization” of war.
Their activities include protecting military personnel and assets, training and advising armed forces, maintaining weapons systems, interrogating detainees and, on occasions, even fighting.
In some cases, States have contracted out these functions because they do not have the manpower to undertake them. The increasing sophistication of weapons systems has also led to greater dependency on outside technical support.
The ICRC has not joined the debate about the legitimacy of using private companies. Its concern is compliance with IHL. In particular it is concerned with the question of what obligations and rights private military and security companies and their staff have, and what are the obligations of States using them?
The position of the companies and their staff is not straightforward. Non-state actors are bound by IHL during an armed conflict if they are parties to the conflict. Private companies may not be, but their employees as individuals, depending on their particular roles, are more likely to fall under IHL rules.
The majority of employees of private military and security companies fall within the category of civilians, as defined by IHL. In both international armed conflicts and non-international armed conflicts their position is covered, and their protection assured, by the Fourth Geneva Convention, the Additional Protocols of 1977 and customary law. However, if they participate directly in hostilities, they lose the protection from attack afforded to them as civilians in both types of conflict.
Despite the occasional use in media reports of the word “mercenary” in relation to employees of private companies, the term has, in fact, a narrow interpretation under IHL and would not apply to most company employees in recent conflicts.
When it comes to the obligation of States, these need to be clarified. In very general terms a State that employs private companies must ensure that IHL is respected by such companies, and their staff made aware of their obligations. States that have jurisdiction over private companies involved in armed conflicts also have obligations to ensue respect for IHL by those companies.
Given the need for guidance in this area, the ICRC is working closely with the Swiss government, which has launched an initiative to encourage a debate between governments on issues raised by the use of private military and security companies. The initiative aims to establish best practice to assist States to fulfil their obligation to respect and ensure respect for IHL and human rights law in this area.
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