UN GA 1st Committee – Disarmament and International Security:

Regulation and Control of Private Military Companies

KCL Model United Nations Chairing Training Program 2011

The legal definition of a mercenary is unique to a particular political epoch and is narrowly drawn, so as to make comparisons problematic. Modern PMCs display a closer resemblance to the private armies used throughout much of military history before the rise of the modern nation state.

Mercenary in The Oxford English Dictionary: “a professional soldier serving a foreign power”

But vague, could include many people engaged in legitimate activities, e.g. Gurkha troops in the British Army, the French Foreign Legion and the Swiss Guard in the Vatican

term ‘private military company‘ does not exist within any current international legislation or convention

Definitions

Mercenaries: individual combatants fighting in foreign conflicts for financial gain most attention to mercenaries was drawn by their use against national liberation movements during the early

post-colonial Africa period, and they are still prevalent today in many conflicts Private military companies: corporate entities offering a range of military services to clients predominantly used by governments to make a military impact on a given conflictPrivate security companies  similar to private military companies but provide defensive security services to protect individuals and property used by multinational companies in the mining and resource sector, and by international and humanitarian

agencies in conflict and unstable areas in theory distinct from private military companies in that they are usually unarmed and are concerned with the

protection of property and personnel, rather than having a military impact on a conflict in a given situation. However, some companies display characteristics of both kinds of companies by being involved in both security and PMC-related activities.

Private logistical companies  provide combat support functions, such as intelligence gathering, logistical support and supplies. However, this

distinction between combat and combat support is spurious at bestDifference Mercenaries –PMCs PMCs, in the majority of cases so far, have worked for governments, mercenaries of the post-colonial Africa era on

the other hand mostly worked for non-state armed groups attempting to destabilize governments or national liberation movements

mercenary forces covert in nature, PMCs have generally been registered companies that pay taxes and display many characteristics of corporations in other industries. However, the use of offshore tax havens and other financial arrangements –not always transparent about their operations

Definitions/2

The existence of private military entities dates back to the 13th century became well established over the centuries but found themselves overridden by the creation of modern state which

centralized monopoly of legitimate use of violence into its hands, thus putting control and strains on mercenary “profession”

From the Middle Ages up to the 1980s mercenaries a recognizable group of fortune hunters associated with vicious actions association of many with the apartheid regime in South Africa and other regimes responsible for flagrant violations of

human rights PMCs have shown a willingness to intervene in many of the hostile environments of little strategic interest to the key

global powers, while appearing not to suffer the same political constraints as governments in incurring casualties In the 1990s, governments and UN agencies increasingly turned to PMCs for security support in humanitarian relief

missions PMCs have been involved in escorts for the transfer of emergency relief to war- affected communities. Armed escorts are

used extensively in large logistical operations, such as those run by CARE and World Food Program. Insecurity in places such as Chechnya, Somalia and Colombia has highlighted the security risks to aid workers. In addition, PMCs have also been used for logistical support to UN Peacekeeping Missions.

On a national level, little is understood about the links between local PMCs and state military forces, government officials or even criminal elements of societies.

On a global level, PMCs thrive where the state may be weak in terms of governance. PMCs most active in countries afflicted by ’resource wars‘ in which the state is competing with an opposing force over

natural resources Increasing use of such companies by humanitarian agencies  If PMC personnel are armed or are from a military background then aid agencies might be perceived as being part of the

conflict rather than good humanitarians assisting its victims – challenge to the notion of impartiality and neutrality of humanitarian action.

 

History of PMCs

Customary International Law There seems to be very little evidence to indicate that mercenaries or the use of

mercenaries is illegal in customary international law before the UN came into being states lax in enforcing any of the international and regional regimes against individual

mercenariesThe Geneva Conventions and the UN 1949 Geneva Conventions: conditions of fair treatment of prisoners of war (PWs) and

proper activities in armed conflict. As long as mercenaries were part of a legally defined armed force, they were entitled to PW protection (special protection and treatment, including immunity from prosecution for normal acts of war)

In response to events in Africa in the 1950s and 1960s, international law sought to bring the practice of mercenarism under greater control.

1968 UN resolution condemning the use of mercenaries against movements of national liberation, later codified in the 1970 ‘Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States‘. The 1970 Declaration represented an important transition in international law, as mercenaries became ‘outlaws‘, but the burden of enforcement remained exclusively on state regimes

The legal status of PMCs

In 1987 the UN Commission on Human Rights appointed a Special Rapporteur on the use of mercenaries as a means of violating human rights and impeding the right of peoples to self-determination.

In 1989 the UN adoption of an ‘International Convention against the Recruitment, Use, Financing, and Training of Mercenaries’.

September 2001, Convention adopted en 1989 came into force, when Costa Rica became the twenty-second signatory.

The legal status of PMCs

Afghanistan The United States is said to own about 2/3 of Afghanistan and

employs 100,000 personnel from mercenaries to protect convoys, military bases and the transportation of high value targets. Firms like Dyn Corp entered into 2.2 billion contracts for transportation of defense equipment to more than 100 bases all over Afghanistan.

Iraq  With the invasion of Iraq, by coalition forces, the United States

Department of State and Defense collaborated to allow the involvement of mercenaries. The United States allowed the mercenaries complete autonomy and immunity from Iraqi law when the Coalition Provisional Authority. Therefore, the UN, could do little to stop their usage. With complete immunity firms, like the famous Blackwater Worldwide, that are playing a prominent role in the occupation of Iraq. In fact there are more private contractors in Iraq than US troops.

Case Studies

South Africa  The South African ‘Regulation of Foreign Military Assistance Act‘ introduced in 1998

attempts to address both mercenary activities and those services provided by private security and military companies. The legislation makes a clear distinction between ‘mercenary activity‘ and the export of ‘foreign military assistance‘. The rendering of foreign military assistance is not proscribed under the Act but instead controlled by a licensing and authorization procedure under the competence of the National Conventional Arms Control Committee. Approval for a contract is not granted if it contravenes criteria based on international law. The Act includes extraterritorial application and punitive powers for those that do not abide by it.

United Kingdom Although successive governments have deplored the activities of mercenaries, no effective

legislation exists to prevent either their recruitment or their participation in conflict. The 1870 Foreign Enlistment Act makes it an offence to enlist in the armed forces of a foreign state at war with another foreign state, which is at peace with the UK without permission for Her Majesty; or for any person in Her Majesty‘s Dominions to recruit any person for such service. The section dealing with ‘expeditions‘ was invoked in 1896 against the organizers of a raid on the Transvaal (South Africa) but never formally pursued.

After the ‘Arms to Africa‘ affair, in 2002 the UK Government produced a consultative paper that set down a number of regulatory options for discussion with regards to PMCs and mercenaries. These have yet to have been progressed since tabled in 2002.

Regulation of PMCs: Case studies

Countries from where PMCs originate The USA, UK, South Africa and other such countries where PMCs originate from or have

their primary bases, receive monetary and economic benefits from letting PMCs run in their countries. Hence, it is fairly obvious that they do not favor regulation of PMCs. It is important to note that none of these countries are signatories of the Mercenary Convention that calls for control and regulation of PMCs

Countries where PMCs operate  PMCs are found in two distinct regions – the Middle East and Africa. Here they have both

positive and negative effects on the countries wherein they operate. On occasion they side with rebel forces, support coups or pillage and loot. Unfortunately there is a lack of monitoring and international guidelines for the control of PMC activities in these countries. 

Countries which have signed the 1989 convention Signatories of the ‘Mercenary‘ Convention, though far and few, would definitely be in

support of regulation and control of PMCs by an internationally recognized instrument. Currently, most signatories are those that do not have PMCs operating in or from them. However many of them neighbor PMC ridden countries, and in the interest of both their national security and international peace, they seek the enforcement of the Mercenary Convention

Block Positions

What is the legal, universally accepted definition of a PMC? What is the future of PMCs‘ legal status in relation to the UN? Is regulation of PMCs a must for today‘s day and age?

What are the guidelines on establishing and running a PMC? How can the Mercenary Convention be made more effective?

Should the international community pressure non-signatories of the UN Convention of Mercenaries to sign it?

How can the international community make these privately owned firms accountable for their actions across borders?

Can PMCs replace peacekeeping missions? Should the UN peacekeeping forces and these corporations come

under the same category? Should PMCs become UN owned, and should their method of

accountability be contrasting or diversified? Under whose jurisdiction to PMCs fall under?

Main Issues