Regulating Privatisation of "war" (PrivWar)

PRIV-WAR was a collaborative research project (7th Framework Programme – Theme 8: Socioeconomics sciences and humanities) coordinated by the European University Institute through the Academy of European Law in cooperation with LUISS “Guido Carli” (Rome) and the other project partners: Justus Liebig Universität Giessen; Riga Graduate School of Law; Université Panthéon-Assas (Paris II), Centre Thucydide; University of Sheffield and Utrecht University. The project has assessed the impact of the increasing use of private military companies and security companies (PMCs/PSCs) in situations of armed conflict. It has examined the regulatory framework at national, European and international levels, with a view to ensuring improved compliance with international humanitarian law and human rights.

Context

In recent years, the “privatisation of war” has attracted growing attention: several states have resorted to private firms in situations of armed conflict. These firms offer logistical support, security and crime prevention services, military advice and training. Their potential engagement in combat has raised questions under international humanitarian law (IHL). The notion of mercenaries has resurfaced and the legality of private actors has been questioned. In addition, the issue of accountability of the PMCs/PSCs, as corporations and of their employees individually, has emerged in recent practice.
Although the participation of private actors in warfare is not a new phenomenon, an initial concern motivating commentators and activists was that private companies operate in a legal vacuum. Whilst there is growing consensus that the situation actually more resembles a complex patchwork of norms, the key issue remains of whether and how these existing norms can be effectively applied and whether they need to be supplemented with new norms.

Objectives

The PRIV-WAR project is aimed to

• Promote a better understanding of the phenomenon of the privatisation of war

The research project will formulate a definition of PMCs/PSCs and examine the reasons why states resort to them, focusing on the nature of the functions they exercise, the definition of rules of engagement and chains of accountability. Special attention will be paid to outsourcing in the context of peace-keeping operations, against the background of the development of a European Security and Defence Policy. The project will favour comparative research in a historical perspective.

• Clarify the legal status of PMC/PSC employees under IHL
A central question is whether PMCs/PSCs should be regarded as mercenaries, combatants or civilians. Research will also be undertaken on the concept of ‘direct participation in hostilities’ and its applicability to PMCs/PSCs.

• Foster knowledge on the impact of private military activities on the enjoyment of human rights
The project will examine the implications of the use of PMCs/PSCs for the enjoyment of human rights and document serious violations of human rights which have occurred in practice. In this context, an analysis will be made of the obligations of states under human rights law to protect human rights and to investigate and prosecute serious human rights violations, identifying how these obligations apply to the use of PMCs/PSCs. Also the role of regional and international human rights monitoring bodies will be addressed in this regard.

• Analyse the international responsibility and accountability of corporations
At the international level, the main problem is not that of a legal vacuum: what is lacking is an effective enforcement mechanism. The first crucial question is under which circumstances the conduct of PMC/PSC personnel can be attributed to states. In this regard the role of the state needs to be examined, be it as a client, host, home state or in any other relationship to the PMC/PSC’s conduct. An assessment will also be made of existing options for holding the PMC as a corporate entity responsible for serious violations of IHL or human rights. Additionally, a review of self-regulation initiatives within the PMC/PSC industry will be conducted, focusing on the legal norms to which , enforcement mechanisms and oversight provisions on which they rely.

• Review the criminal and civil liability of PMCs/PSCs and their employees for serious violations of human rights and IHL
Research will be undertaken to assess which national and/or international courts have competence over conduct which may amount to serious violations of human rights and IHL attributable to PMCs/PSCs or their personnel, and which legal norms apply.

• Examine the existing regulation at the national, European and international levels
Only a few States, including South Africa, have enacted specific regulation pertaining to the PMC/PSC industry. An analysis of the existing domestic legislation and of the current regulation at the European and international levels is a prerequisite of any discussion on future options.

• Explore ways in which the EU could regulate or facilitate the regulation of PMCs/PSCs with a view to assure compliance with human rights and IHL
The project aims to determine how best to regulate the private military and security sector through national legislation and to ensure its compliance with human rights and international humanitarian law. Some proposals for a system of registration and licensing have already been put forward: whether this constitutes an effective monitoring mechanism remains to be seen. The project will pay particular attention to the role of the European Union: although it has largely been neglected so far, the research hypothesis is that the EU should play a more active role in establishing common standards and in assuring effective monitoring .

Activities

• Research and dissemination
Research will be undertaken on a range of questions relating to the existing legal framework and the practices of PMCs/PSCs. National legislation and judicial practice will be collected and annotated. Research results will be broadly disseminated within the scientific community and beyond by means of reports, publications, articles in academic journals, workshops and conferences.

• Creation of a European academic network in the field of regulation of the private military and security sector

The project consortium comprises seven European research institutions, each bringing to the project recognised expertise in the fields of international relations and international legal research. PRIV-WAR will create a European academic network, open to the future participation of other institutions.

• Dialogue with practitioners and stakeholders

PRIV-WAR will promote ongoing exchanges of views among researchers, stakeholders, practitioners and industry representatives. Dialogue with these parties will inform the research and ensure that policy recommendations benefit from the input of all relevant players.

• Development of a European approach to regulation
The project will formulate proposals for a satisfactory regulatory scheme within the European Union to ensure accountability and responsibility of PMCS/PSCS. Maintaining a focus on the role of human rights and international humanitarian law, the project will seek to identify possible approaches and legal tools, including licensing and registration.

I. Project objectives, work performed and main results achieved so far

The project was launched in January 2008. In the first eighteen months, substantial progress has been made towards achieving its objectives. With a view to disseminating the projects results and to promote a dialogue with interested parties, a public website has been created: www.priv-war.eu. Various research papers and reports have been published on this website, as will be described below. A brochure was produced and disseminated widely among academic institutions, research institutes, international organizations, NGOs, and the PMSC industry both within the EU and in third countries, including the USA and the Russian Federation.

The research under the different work packages as identified at the outset of the project is well advanced. With regard to each of its stated objectives, the following results have been achieved so far:

1. Promoting a better understanding of the phenomenon of the privatization of war
The research activity carried out under work package 1 was specifically aimed at understanding the nature of the “privatization of war.” The historical background of the phenomenon of PMSCs has been analyzed. The PRIV-WAR consortium also created a database of companies with a view to gathering information on the essential features of these corporate entities. Two workshops held in November 2008 in Rome and in May 2009 in Sheffield enabled a frank debate with experts on the tasks PMSCs perform in the context of an armed conflict and the reasons for their extensive use by regular armed forces. A report produced by an expert on strategic studies identifies the risks of delegating international security to private entrepreneurs and calls for a renewed sense of responsibility by state institutions.

2. Clarifying the legal status of PMSC employees under IHL
Much work was devoted to the issue of the status of PMSCs’ staff under IHL within the framework of work packages 2 and 3. The research showed that in principle, PMSCs’ personnel could be considered as combatants in an international armed conflict, if two conditions are fulfilled: (i) the PMSC employee falls under a command responsible to a Party to the conflict for the conduct of its subordinates and (ii) an internal structure and a disciplinary system are in place within the PMSC. If PMSC employees are not legitimate combatants they are civilians. As civilians, they are not allowed to take direct part in hostilities, or they lose the benefit of immunity from attack. Another paper addressed the situation of non-international armed conflicts, in which there is no recognition of combatant privilege. The question then arises whether PMSC personnel could be considered as members of an organised armed group within the meaning of Additional Protocol II, which does not enjoy protection from attack. Moreover, an article, forthcoming in the Italian Yearbook of International Law, discusses the constitutive elements of the definition of “direct participation in hostilities”, on the basis of the work of the group of experts convened by the ICRC. It concluded that the notion should be narrowly defined in order to prevent arbitrariness and avoid the killing of innocent civilians. During the first eighteen months of the project, researchers have started to investigate under what circumstances PMSC employees are covered by the definition of mercenaries as set out in the relevant international conventions. A preliminary examination of the relevant international norms was made, and contacts have been established with the UN Working Group on the Use of mercenaries. One of its members, Prof. Gomez Del Prado participated in the Rome workshop in November 2008 and representatives of PRIV-WAR attended consultations held by the working group as well as a regional conference in Moscow.

3. Fostering knowledge on the impact of private military activities on the enjoyment of human rights.
The topic of human rights protection is at the core of the PRIV-WAR project. This is clearly demonstrated by the General Report on The role of human rights in the regulation of private military and security companies. It provides a comprehensive overview of the regional and universal instruments applicable to the protection of human rights and examines how relative obligations and remedial processes may have an impact on the regulation of PMSCs and on their accountability in the event of human rights violations. The research focuses on states’ negative obligations to refrain from conduct that will result in human rights violations, and on positive obligations to ensure that PMSCs do not cause human rights violations. The positive obligations to prevent and punish human rights violations were assessed for the contracting state, the home state and the host state of PMSCs. Considering the importance of human rights within the project, it was decided to undertake some additional research from a thematic perspective, considering the potential impact of PMSCs on the rights of women, children’s rights and on cultural rights; as well as the roles played by NGOs as regards the conduct of PMSCs. Moreover, research was undertaken on the European Union’s fundamental rights as applicable to PMSCs, their impact on EU external relations and their interaction with IHL, as well as on the question of immunities under international law and their applicability to PMSC personnel. These research results will be published in academic journals; as EUI Working Papers and/or in a separate academic volume focusing on the human rights component of the research.

4. Analysing the international responsibility of states and the accountability of PMSCs as corporations.
This objective is being addressed in work package 5, which aims to explore the mechanism international law offers to hold states responsible for violations of human rights or public international law related to PMSC activity. The primary outcome based on a comprehensive report detailing the primary obligations of states underIHL, under the ius ad bellum and the law of neutrality; as well as under human rights law, will be an article in a leading journal. This article will focus on the question whether or not state responsibility for PMC conduct presents a challenge to international law above and beyond questions that have already been sufficiently addressed in other contexts, such as the support for rebel forces, e.g. in the Nicaragua case.
Research on the “duty to train and disseminate,” as well as on state responsibility for PMC conduct is currently being conducted. During the first eighteen month period, progress was also achieved in the production of a report detailing the primary obligations of states under international humanitarian law and a report detailing the primary obligations of States under the ius ad bellum. The consortium partners responsible for this work package are in the process of collecting case notes detailing the different approaches to state responsibility for non-state actors expounded by different courts and tribunals. Moreover, a report is being drafted on the theory and practice of reparations for internationally wrongful acts, focusing on conduct by a non-state actor. Finally, a report on the ‘Issues of Institutional Responsibility – Responsibility of International Organisations for the Conduct of PMSC Staff, is being finalised. It analyses issues of legal responsibility arising from the discernible trend among international organizations, including regional organizations, to use the services of PMSCs.

Substantial research results have been achieved during the first eighteen months with respect to the self-regulation initiatives within the PMSC industry, which are addressed in work package 6. Three main outcomes were planned for the first period: first, to elucidate historical precedent for holding corporations responsible for violations of international law and human rights and to suggest approaches how, de lege ferenda, such responsibility could be implemented. Second, a report on International Initiatives for Holding Corporations to Account for Violations of International Law and third, a report on the state of self-regulation of the PMSC industry. All these reports have been produced and provide valuable insights and conclusions. Only the proposals on how the responsibility of corporations could be implemented still needs to be finalised.

5. Examining the existing regulation at the national and EU level
The research activities for the achievement of this objective represent one of the most original elements of PRIV-WAR, which differentiate it from any other effort so far taken in this field. By the end of June 2009, 18 reports on domestic legislation and case law have been published on the PRIV-WAR website, www.priv-war.eu. These reports include a description and analysis of the national regulatory context of PMSCs in eleven EU Member States (the Netherlands, the United Kingdom, Italy, Germany, France, Spain, Belgium, Finland, Portugal, Latvia, Lithuania, Estonia, and the Czech Republic). In addition, national reports on the United States, Canada, Australia, the Russian Federation and Brazil examine the regulatory context of the domestic legislation of crucial players outside the EU, namely those with a significant practice in the field of PMSCs as well as important regulation and case law. Additional reports are planned to be completed by the end of 2009. The large number of reports constitutes the unexpected result of the overwhelmingly positive response to the wide dissemination of the brochure about the project among other academic institutions and government representatives. An additional workshop bringing together the authors of the national reports and consortium members was organised in Florence in March 2009 to promote exchange of views on strong points and major gaps of existing laws and requirements for potential other regulatory regimes including possible roles for the EU in that regard. Also a comparative overview of the national regulatory models and their implications for future international regulation was prepared. Another report analyses the current regulatory context of the private military and security sector at the EU level and anticipates legal obstacles to the introduction of harmonization measures in this field. It is concluded that at present, PMSC services are not regulated at the European level. Even within the Internal Market, the domestic private security services so far have not been harmonized.

6. Creating a European academic network of experts in the field of the regulation of private military sector
Since its very beginning, the PRIV-WAR consortium took the initiative to discuss the issue of regulation of private military and security companies with other academic experts. The first opportunity was the Symposium co-organised with the European Journal of International Law (EJIL) in June 2008. Five papers presented at this event were then included in the issue 5/2008 of EJIL. The whole set of papers produced on the basis of this symposium are also published as EUI/AEL Working Papers, and are equally made available at the project website www.priv-war.eu. The Journal’s weblog (www.ejiltalk.org) joined our website in the dissemination of the papers and in promoting further discussion. In February 2009 an on-line debate was launched, with the participation of distinguished European and American scholars. All the other events organised within the framework of PRIV-WAR – the workshop in Rome on 28 November 2008; the meeting on national legislation in Florence on 13 March 2009; the workshop in Sheffield on 28 May 2009 – contributed to the creation of a wider network of experts, having different backgrounds, which brought a clear interdisciplinary character to the project. Contacts were established with other initiatives at academic and institutional level in the field of PMSCs regulation: in particular, with the International Committee of the Red Cross, the Swiss Government and the organisation called DCAF (Geneva Centre for the Democratic Control of Armed Forces). These actors are all involved in the so-called Montreux process, which is producing significant results.


II. Expected final results and envisaged impact

The project addresses one of the fundamental aspects of the dynamics of present-day armed conflicts: the progressive involvement and the growing relevance of non-state entities in war scenarios. In particular the use of private military and security companies by States, international organisations and private companies (e.g. in the resource-extraction industry) raised serious concerns about the respect for human rights and humanitarian law standards. The research on these topics is undertaken by adopting a truly European approach: to discuss the existing state practice and to develop a unified satisfactory regulation at supranational and national levels, as well as to help provide a consolidated European perspective for coming initiatives at the international level. The project will offer a valuable contribution towards the expected impacts highlighted by the work programme of the Area “Conflicts, peace and human rights”. The expected final results include, in particular:
? Advancement of the knowledge on the phenomenon of PMSCs and on the potential impact of PMSC’s activities on the enjoyment of human rights and on the respect for international humanitarian law;
? Creation of a European academic network in the field of the regulation of private military and security sector
? Contribution to the formulation and implementation of satisfactory regulation of PMSCs by proposing ways how the EU could play a more active role in setting common standards and ensuring improved transparency and compliance with human rights and IHL

The long term impact of the project will be the development of a satisfactory regulatory scheme within the European Union. It will underline the potential of a unified European regulation scheme to ensure accountability and responsibility of PMCs/PSCs. The project will seek to identify different approaches and legal tools that could be relied on to achieve such a unified European regulation scheme, with a specific focus on licensing and registration.

The societal implications of the project so far consist in the contribution, through its first publications, to the knowledge of and the academic debate on inter alia, the phenomenon of PMSCs; the status of PMSC employees under IHL; the impact their activities may have on the enjoyment of human rights and the respect of IHL; the obligations of states to prevent and punish such violations; and self-regulatory initiatives of the PMSC industry. The research undertaken on international law, in particular IHL and human rights law in relation to PMSCs clearly goes beyond the state of the art in the legal literature. In this regard, the research concerning the status of PMSC employees under IHL, both in international and non-international armed conflicts, is innovative. Also the comprehensive analysis of the possible impact of PMSC activities on the enjoyment of human rights as protected by various international and regional instruments; as well as the examination of the positive obligations of states to prevent and punish such violations breaks new ground. The thematic perspective of the possible impact of PMSCs on women’s rights, children’s rights and cultural rights is also an original contribution to the existing literature.

Moreover, the production and publication of a considerable body of reports on the national regulatory context regarding PMSCs in 18 states, both within the EU and in other states which are of particular importance for this topic -such as the USA, South Africa, and the Russian Federation-, has already proven valuable to the discussion of the subject. Indeed, this is the most comprehensive collection to date of a substantive analysis of the existing regulation of PMSCs and their services at the national level, pointing to best practices and major gaps. The work undertaken in the context of the PRIV-WAR project so far has indeed informed the debate, both in the academic world, and within international organizations, including the United Nations and the ICRC; as well as in the PMSC industry itself.