ШАГ В НАУКУ - 2016
I Международная научная дистанционная студенческая конференция

Юридические науки
Responsibility of the private military and security companies
Кшнякина Ю. О. 1

1. ЧУО «БИП – Институт правоведения», Гродненский филиал

Резюме:

Дано понятие частных военных компаний, представлены основные сферы их деятельности и функции, проанализирован статус таких компаний в международном праве, определены проблемы установления правового положения сотрудников данных компаний в международном гуманитарном праве. Приведены меры принятые ООН для усиления контроля над деятельностью частных военных компаний.

Ключевые слова: комбатанты, некомбатанты, международное гуманитарное право, наемники, ООН, конвенция.


 

RESPONSIBILITY OF THE PRIVATE MILITARY AND SECURITY COMPANIES

Ю. Кшнякина, студентка 4 курса,

Гродненский филиал БИП

Научный руководитель: А.А. Суходольский,

 доцент, Гродненский филиал БИП

Whilst the time-honoured profession of being a mercenary may be as old as the history of warfare itself, we are perhaps witnessing a ‘golden age’ for the soldier of fortune. During armed conflicts, states often transfer functions to private military and security companies. Private military and security companies (PMSC) are the modern reincarnation of a long lineage of private providers of physical force: corsairs, privateers and mercenaries.

A simple Internet search of PMSC gives hundreds of links to organizations whose role, status, accountability and regulation has not been clearly identified by law. According to a report of a meeting of experts on the PMC industry, held under the auspices of the United Nations, there is a very large number of companies operating in an industry worth US$100 billion. Some members of the international community treats all PMCs as bands of criminal mercenaries, yet employees of some PMCs are attempting to benefit from combatant status to protect themselves against civil lawsuits. Governments repeatedly assert that PMC employees are ‘‘civilian contractors’’, implying that they do not perceive these individuals as combatants.

However, these individuals cannot be considered as civilians, given that they often carry and use weapons, interrogate prisoners, load bombs, drive military trucks and fulfill other essential military functions. They cannot be considered soldiers or supporting militias under international humanitarian law either, since they are not part of the army or in the chain of command, and often belong to a large number of different nationalities. As well PMSC personnel cannot usually be considered to be mercenaries for the definition of mercenaries.

The human rights violation perpetrated by private military and security companies are indications of the threat posed to the foundations of democracy itself by the privatization of inherently public functions such as the monopoly of the legitimate use of force.

For example with over seven hundred private security companies operating in Honduras, the Government should ensure that their activities are properly monitored and that they do not become a substitute for competent and accountable police.  The human rights experts also recommended that the Government provide adequate resources and training to the National Police, so that they may fulfil their inherent function to guarantee public security and safety of the Honduran population.

Given the traditional concept of the state monopoly on the use of force, the question arises as to which functions can be outsourced to private companies or organizations. Compliance with international humanitarian law and respect for human rights by PMSCs is another concern as supervision and control over their activities remains fragmentary. When crimes are committed, the enterprises or their personnel are often called to account inappropriately. International humanitarian law and human rights law are often little understood.

Mercenarism and mercenaries are dealt with in two international conventions that specifically aim to eliminate them through the criminalization of mercenary activities. International humanitarian law treats mercenarism in a different way. Under the mercenary conventions, if states parties to these conventions have adopted legislation, persons who fulfill the definition of a mercenary may be prosecuted for the distinct crime of being a mercenary. Under international humanitarian law, in contrast, it is not a violation of the Geneva Conventions or Protocols to be a mercenary and mercenarism in itself does not engender international criminal responsibility: a mercenary just does not benefit from prisoner-of-war status if captured.

There are at least three distinct reasons why it is essential to know whether PMC employees are combatants: first, so that opposing forces know whether they are legitimate military objectives and can be lawfully attacked; second, in order to know whether PMC employees may lawfully participate directly in hostilities; and the third reason, related to the second, is in order to know whether PMC employees who do participate in hostilities may be prosecuted for doing so.

If international law does not recognize PMC employees as combatants, they are civilians. This factor carries important consequences, because civilians do not have a right to participate directly in hostilities. If private military company employees have a right to participate in hostilities, then the ability of international humanitarian law to protect the rest of the civilian population could be compromised.

Direct prohibition of private military company employees’ participation in hostilities is insufficient because of some features of international humanitarian law itself. First, the concept of what constitutes direct participation in hostilities is poorly defined. Second, the fact that there is no distinction under international humanitarian law between fighting to attack and fighting to defend means that it is meaningless to stipulate that such employees may only defend. Finally, even a scheme permitting PMC employees only to defend civilian objects will not work as the concept of what is a military objective is not static under humanitarian law. Almost any object can become a military objective under certain circumstances, potentially changing the role of the person guarding that object.

Perhaps all mentioned above is the reason why, despite the fact of their involvement in grave human rights violations, not a single PMSC or employee of these companies has been sanctioned.

Private military and security companies operate in a legal vacuum: they pose a threat to civilians and to international human rights law. The UN Human Rights Council has entrusted the UN Working Group on the use of mercenaries, principally, with the mandate: “To monitor and study the effects of the activities of private companies offering military assistance, consultancy and security services on the international market on the enjoyment of human Rights and to prepare draft international basic principles that encourage respect for human rights on the part of those companies in their activities”.

The Working Group developed several measures to control private military and security companies. The first one is to rescind immunity to contractors carrying out activities in other countries under bilateral agreements. It means that private companies’ employees fall under the jurisdiction of national law and, thus, become liable for any wrongdoings. It is considered of vital importance to carry out prompt and effective investigation of human rights violations committed by PMSCs and prosecute perpetrators. It is recommended to establish a specific system of licensing of PMSCs for their activities abroad. One more measure developed by the UN Working Group is setting up an inspecting procedure for awarding contracts to PMSCs.

Finally, many states view Private Military and Security Companies (PMSCs) as crucial to implement their security policy. However, reoccurring incidents of human rights violations have led the international community, private sector and civil society to acknowledge the need for more control over the use of PMSCs. Growing state support for The Montreux Document and an ever growing number of signatory companies to the International Code of Conduct for Private Security Service Providers show that self-regulation through non-binding norms has shifted to the center of this debate.

Literature:

1)         Fabian Matthieu& Nick Deardren. ‘Corporate Mercenaries: The Threat of Private Military & Security Companies’ Review of African Political Economy, Vol. 34, 114 (Dec., 2007), 745; C. Holmquist, ‘Private Security Companies. The Case for Regulation’, SIRI Policy Paper, No. 9 (January 2005); P. Singer, ‘Corporate Warriors :The Rise and Ramifications of the Privatized Military Industry’, International Security, 26 (2001/02), 186-220.

2)         An anthology of new PMC and PSC scholarship edited by Thomas Jäger and Gerhard Kümmel. VsVerlag, February 2007, paperback, 502 pages.

3)         Shishkov, Viktor (2009-03-02). "Private military companies to supersede regular armies". // informationliberation. [Электронный ресурс]. - Режим доступа:  .  http://www.informationliberation.com/?id=26599. - Дата доступа: 24.03.2016.


Библиографическая ссылка

Кшнякина Ю. О. Responsibility of the private military and security companies // . – . – № ;
URL: step-science-bip.csrae.ru/ru/0-136 (дата обращения: 04.12.2020).


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