Modern conflicts are not just waged by state sponsored armed forces. In the last two decades there has been a rapid growth in the international recruitment of Private Military Companies (PMCs), used for everything from protecting top-level diplomats from harm in the Middle East to defending resource mining sites throughout Sub-Saharan Africa.
These commercial security contractors are indispensable partners to states, NGOs and corporations the world over. The growth of privatized conflict presents structural issues for international law and diplomacy.
The Loopholes of Modern Legal Systems in War
Among the most consistent and frequent challenges to global peace and security is the glaring accountability vacuum relating to non-state actors. When a uniformed state soldier is found to have committed crimes they are subject to the rigorous legal structures of the military justice system, including the Geneva Convention. By comparison, PMC operators often exist in a legal grey area.
Host nations where such operators act, often experience a level of domestic instability where their own legal systems are overstretched, or politically weak to effectively take action against powerful private security forces. The nations routinely lack either the will or capacity to pursue legal action against heavily armed foreign PMC personnel. The home states of PMCs are never eager to prosecute for alleged offences committed abroad by the corporations which they sanction. This leads to an accountability vacuum.
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Bringing the War-Zone Back Home
Due to a lack of a central tribunal for PMC abuses, such individuals usually fall to the jurisdiction of the domestic legal system in their home country. Taking war crimes back home presents a unique challenge for a domestic legal system. When prosecuting for violent abuses committed in a distant battlefield, standard criminal codes and procedures may prove ill-suited.
Attempts by domestic prosecutors to seek convictions for offenses such as murder or assault against their country’s PMC operators has led to lengthy and complex legal proceedings. Acts normally described a felony assault charge were made all the more difficult due to a defence team pointing to the hostile environment, self-defense and chain of command arguments during combat.
Diplomatic Fallout and Tensions
A failure to investigate or hold delinquent PMCs to account will trigger severe diplomatic backlash for a country. In a state in which private security companies are operating abroad and are subject to no scrutiny or legal checks and balances, public antagonism will increase and in some circumstances relations with the country of origin of these PMCs will be strained. In a fragile international environment, years of delicate diplomacy and international co-operation can be instantly sabotaged when a foreign military acts without limits.
International Cooperation Needed for PMC Regulation
It is essential that the international community moves beyond a voluntary framework to regulate PMCs. Regulations such as the Montreux document is an excellent starting point for regulation but more robust measures such as a mandatory convention governing the behavior and prosecution of private military contractors are needed.
Diplomats must proactively create standard operating procedures for the proper handling of private security forces, to avoid jurisdictional gaps, and take steps towards creating accountability for individual wrongdoers.
