Beyond Banning Mercenaries: The Use of Private Military and Security Companies Under IHL

Abstract

In the aftermath of several incidents involving private military and security companies (PMSCs) in the wars in Iraq and Afghanistan, many have argued that PMSCs were operating in a ‘legal black hole’ where no law applied. Since then, the use of PMSCs in war zones has continued and—due to new circumstances—evolved. Indeed, States still heavily rely on contractors in wars all around the world and due to a digitalization process PMSCs fulfil an ever-broader range of functions. Despite the clear picture of the private security sector that many believe they have, the term ‘PMSC’ now describes a wide array of private actors with very different profiles. In tandem, a regulation for PMSCs has also been developed in recent years. In 2008, the Montreux Document was signed. This instrument defines how international law applies to the activities of PMSCs when they are operating in an armed conflict zone. Two years later, the International Code of Conduct for Private Security Service Providers was finalized. At the same time, several countries have passed regulations on the use of PMSCs on their own territory and abroad. This chapter examines and categorizes the existing market, as well as new forms of private security services that have developed in recent years. Furthermore, it analyses how international humanitarian law can and should be applied to the different types of services offered. Finally, it provides an overview of the existing international initiatives aimed at regulating PMSCs and briefly examines, in this respect, different examples of national regulation.