Use of Private Military Contractors & Mercenaries in the eye of International Law
(by Amaa'n)
The presence of private military and security companies (PMSCs) in armed conflicts has traditionally drawn scant attention. In some ways this is surprising; as such, reliance on private entrepreneurs during war is nothing new. Such entrepreneurs have played a role in wars past and present, from ancient times to the conflicts of our day. But historians apparently considered them no more than an ancillary aspect of military affairs, their status and significance warranting no particular scrutiny.
At the 72nd plenary meeting on 4 December 1989, the UNGA concluded a convention as its resolution 44/34. This convention was officially titled International Convention against the Recruitment, Use, Financing and Training of Mercenaries and only entered into force on 20 October 2001. There are only 43 states that have ratified this convention to date, & Pakistan is not among the signatories.
This convention defines Mercenaries as any person who:
A mercenary is also any person who, in any other situation:
Montreux Document of September 2008, which is also called “Swiss Initiative”, is a fruit of Swiss Govt & Intl Committee of Red Cross. It brought 17 Govts & diplomats from across the world to define the good practices pertaining to PMCs & Private Security Contractors. So far this document has been ratified by 57 states including US & Ukraine. This document is intended to have a practical bearing on the interaction between states and PMSCs. The Montreux Document describes good practices in implementing existing international legal obligations. These good practices are designed to help governments to establish effective oversight and control over PMSCs. The good practices cover a number of practical areas, including: authorisation systems, contract provisions, and licensing requirements, as well as suggesting a number of effective methods for states to oversee the PMSCs they come into contact with. It is important to note here that this document IS NOT LEGALLY BINDING for the signatory states or others. To be noted here that Pakistan is not among the signatories of this document to date.
UNGA’s Third Committee (Social, Humanitarian and Cultural) 73rd Session, 39th & 40th Meetings (addressed that Mercenaries, Private Military Contractors Can Destabilize Rule of Law, this meeting was held on 30 October 2018. The working group addressed the concerns of the attendees related to the use of mercenaries & foreign fighters in armed conflicts. This session was attended by Russian, EU, Cuban & Pakistani delegates.
Saeed Mokbil, Chairperson-Rapporteur for the Working Group on the use of mercenaries, said mercenary related activities can jeopardize the achievement of Sustainable Development Goal16 (peace, justice and strong institutions) As such, the fight against impunity — including for violations committed by non State armed actors — is essential in promoting the rule of law. Yet, pervasive impunity for crimes committed by mercenaries is a common challenge. He recommended the adoption of an international legally binding instrument to address their activities, and that domestic regulatory legislation be put in place, alongside procedures for oversight, registration, licensing and vetting of such private contractors.
The representative of Cuba reiterated her country’s will to submit a draft resolution on the use of mercenaries, based in part on the Working Group’s report. She also addressed that whether a new definition of Mercenaries was needed in UN in the light of recent events (referring to Russian intervention in Syria).This Working Group found links between mercenary activities and private military and security companies. It was established that both can threaten the enjoyment of human rights, as some private military and security personnel have been involved in violations of international humanitarian law and international human rights law. Mr. Mokbil – the chairperson underlined the similarities between mercenaries and foreign fighters, despite the absence of a legal definition for the latter. Both categories are comprised of external fighters that intervene in conflicts, motivated by financial gain and ideology.
1 - Case Study – PMCs for Security Operations:
On 22 October 2014, the Washington jury found four former Blackwater (US private military and security company) private security guards guilty of several charges—murder in the first degree, manslaughter, and attempted manslaughter. This is the result of a 7-year investigation and proceedings following the all-out shoot-out at Nisour Square, Baghdad, Iraq, on 16 September 2007.The first instance decision (pending appeal), based on the jury’s verdict, represents a rare example where the employees of a private military and security company have been found accountable and responsible for conduct exhibited during the performance of a contracted security service that has caused bodily harm and death to innocent bystanders. It also represents a rare occasion where the issue of the use of force by private actors has been legally scrutinized.
Private Military Contractors for Maritime Security
Following the plight of individual coastal states (most notably, the United States (US)) and certain parts of the shipping industry, more and more nongovernmental actors became reliant on the private maritime security services within a short period of time, forcing the International Maritime Organization (IMO) to reassess its position with regard to the use of force at sea by private actors.2 This made it necessary to adjust the international approach as, up to that point, it was in principle prohibited for private actors to carry arms—the notable exception (recognized by the relevant international maritime law and law of the sea conventions and relevant domestic law maritime codes and acts) allows the Masters of Vessels and First Officers to make use of personal firearms that have to be kept under lock and key at all times. The security of people and goods at sea—falling at the same time within the sphere of individual, national, and also common interests—thus became reinforced by an unprecedented enforcement methodology
Governed by the standard security services on board vessel contract form, the GUARDCON—Contract for the Employment of Security Guards on Vessels (GUARDCON). The contractual provisions, such as the example of GUARDCON, are often accompanied by the standards of conduct and separate rules on the use of force, developed either by an individual private maritime security company or by a professional body or association (usually consisting of private maritime security companies and/or other interested stakeholders). Several guidelines and recommendations, drafted particularly for the maritime domain (i.e., the IMO Guidance, the Baltic and International Maritime Council (BIMCO) Guidance, the 100 Series Rules, the IAMSP Rules on Use of Force, the ISO/PAS 28007:2012, and the ASIS/ANSI PSC are the few guidelines & recommendations that are applicable for the use of force at sea.
Due to the fact that none of these documents are mandatory and legally binding, they are necessarily accompanied and intertwined with domestic regulation or nonbinding recommendations, as well as general domestic criminal and civil laws, especially in connection to the issue of self-defense.
the majority of states have continued to adhere to the state’s monopoly on violence principle at sea,5 despite the fact that this principle has long been breached with regard to the activities of private military and security companies on land, including such companies working directly for government institutions in and outside of conflict (war) zones. But when the shipping and insurance driving forces ushered in the private contractors in the maritime domain, the states, already accustomed to the utilization of private security industry on land, soon adjusted to the emerging subbranch of the global private security industry. Initially—keeping in mind that the predominant maritime-related interest of the international community as a whole continues to be the security of people and goods at sea—the introduction of firearms held by private entities into that realm was considered as a violation of the common interest (leading to the possible spread of and an increase in violence). This perception has, however, gradually transformed into a compromise solution whereby the security services are to be offered by professional entities trained and properly equipped to utilize violent means when no other means are available to thwart the realization of danger to people and goods at sea in accordance with the best industry practice, such as the example of the Montreux Document (not relevant for the maritime sector).6
The role of the state was, therefore, diminished to a certain extent, partially due to the private contractual nature of private maritime security services (as opposed to such instances when states contract private actors to do their bidding), even though states persist in their determination to remain the watchful dog through carefully drafted legislation. The impact of this effort is, however, dubious due to the practical difficulties of control and supervision enforcement. At the same time, the role of the private sector in the protection of seas and oceans continues to increase—the scope of utilization echoing beyond any precedent.
2- Case Study – PMCs for Maritime Security:
On 15 February 2012, two Italian marines, providing government-authorized Vessel Protection Detail (VPD)9 service to the Italian tanker Enrica Lexie, allegedly shot and killed two Indian fishermen.
On 2 July 2020, the Permanent Court of Arbitration recognized the functional immunity of the two Italian marines, noting that they were engaged in a mission on behalf of the Italian Government, and thus ruled that the process continue in Italy. However, Italy was required to find an agreement with India in order to compensate for the two deaths and for the physical and moral damages suffered by the crew members and the vessel.
In January 2014, India decided to prosecute the Italian marines under the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA). The SUA Convention was passed in 1988 with the goal of suppressing international terrorism. Italy criticized the prosecution pursuant to the SUA Convention as equating the incident to an act of terrorism.
On 7 March 2014, India dropped the SUA charges against the marines. On 7 February 2014, the charges were downgraded from murder to violence meaning the marines would not face the death penalty if convicted. During all the period, Italian authorities maintained that India lacked jurisdiction in judging the case, since, based on the Enrica Lexie positional records, the ship was outside the Indian territorial waters, and well in the international navigation area. Furthermore, they maintained that India lacked jurisdiction for arresting the two marines, since they were on an Italian ship in international waters, charged of security duties. As such, they were military personnel on duty in defense of a part of the national territory, and could not be considered terrorists or being accused of murder. India countered that if the marines were on military duty and had killed unarmed civilians they could be charged with war crimes under the Geneva convention and murder was the lesser charge. From their side, Indian authorities delayed the formalization of accuses, thus stemming reaction from Italian authorities, which sought support from the European Parliament. The latter decided to back Italian position, with special reference to the lack of any formal accuse which justified the detention. In January 2015 European Parliament issued an official resolution, according to which human rights of the two Italian marines were violated.
Private Military Contractors For Peace Keeping Operation & Armed Conflict on land
the trend in recent years has been progressively to privatize important sectors of governmental functions through the outsourcing of security and military services to private actors. Private military and security companies or ‘ con-tractors ’ thus replace soldiers and members of the armed forces in a variety of situations that include armed conflict, prolonged military occupation, peacekeeping, and territorial administration in post-conflict institutional building and intelligence gathering.
At a political level, the reliance on private contractors rather than on sol diers diminishes the effectiveness of domestic mechanisms of democratic control over armed forces, as required in all constitutional democracies. It offers the possibility of circumventing the requirement of parliamentary authorization for specifi c missions and services, or of going beyond limits on the number of troops to be deployed abroad or allowed to serve in a theatre of military operations. From a legal point of view, the question arises as to what is the status of these new actors in international law and more particularly in the context of the international law of armed confl icts. Are they to be considered mercenaries, and under what circumstances? Or are they part of the armed forces? When do their military services amount to a direct participation in hostilities? Is their conduct subject to the rules of international humanitarian law? And if they are not to be assimilated into the armed forces, are they still bound by basic norms of international human rights and humanitarian law that protect life, integrity and property? And when private military companies commit abuses in the course of their conduct, what jurisdictional opportunities are available in order to provide civil remedies to victims and/or criminal prosecution of possible offences? Attempting to address these questions brings us to a grey area of the law, both international and domestic.
At the international law level, the extent to which primary human rights obligations apply to the conduct of private military companies remains unclear: first, because there is no agreement as to whether human rights obligations are binding upon private actors; second, because the conduct of these actors normally occurs abroad and therefore outside the ordinary territorial and jurisdictional sphere of application of human rights obligations. Consequently, at the level of secondary rules, a state may not be held responsible for having failed to prevent abuses by private military contractors, or for not having provided adequate remedies or prosecution, unless a certain degree of control existed over the conduct that caused the abuse. While with soldiers such level of control is in reipsa , since they are an integral part of the organic structure and apparatus of the state – with a chain of command, disciplinary oversight and mechanisms of enforcement that make them directly accountable to the state – private military ‘ contractors ’ are by definition only in a contractual relation with the hiring state. Thus their acts are not in principle acts of state but acts of private persons, even though their services often entail carrying weapons and exposing other persons to the risk of injury. The problem of accountability becomes even more complex when private military contractors are used by international organizations, such as the UN, the EU or NATO. In this case their conduct may call into play the still elusive concept of institutional responsibility of intergovernmental organizations.
If we move from the international law level to the level of domestic law and jurisdiction, the legal tools to ensure effective regulation of private military companies and monitoring of their activities become even more uncertain. Domestic laws vary enormously with respect to the legality of outsourcing of military services to private companies: some countries maintain an outright prohibition of such outsourcing; others even criminalize the serving of nationals in such companies as such service is assimilated with mesmerism; in many legal systems the provision of military and security services is subject to strict licensing and vetting procedures for individual employees, while in others it may be treated as part of the exercise of economic freedoms.
Case Study – Use of PMCs in Syria & the legal aspects
In feburary 2018, a combined Syrian Army & Wagner Group (Russian PMCs)Unit attacked a US Special Operations (SDF OP) in Deir ez Zour, Syria. US Firepower quickly repelled the attackers that resulted in death of almost 200 men on the Syrian side.
Conflict in Syria involves fighting b/w different groups such as ISIS, Free Syrian Army (group calling for Political reforms) & Syrian Defence Forces that support the Assad Regime. US & Russians are party to the conflict as well but at the heist of other primary groups mentioned earlier.
In 2015, Russian troops landed in Syria providing logistical support only along with Training of Syrian forces, however it wasn’t long when in October 2015, Wagner Group landed in Syria, initially tasked with protecting the Govtmenta infrastructure, protection of military bases etc. In 2016, Syrian Ministry of Oil & Natural Resources & Russian Minstry of Energy reached a preliminary agreement with Evro Polis , private military contractor for the protection of oil fields. A draft copy of this agreement that surfaced the internet latter mentioned that the Security Firm was tasked to regain the control of Oilfields, oppose ISIS movement, protect, store, transport and sell the Oil & Gas produced from the wells. This showed that how a Security mission turned into Offensive Security mission.
So it was in February 2018, when Syrian Special Forces along with Russian PMCs carried out a Joint Operation in Deir ez Zour, it engaged with US Special Forces – SDF that themselves were carryout counter – ISIS operations.
So how can we categorize the Syrian Conflict? In order to establish the legal grounds for use of PMCs in Syria it is important to understand first the classification of Conflict in Syria, that whether it is a International Armed Conflict or Non International Armed Conflict.
1949 Geneva Convention defines IAC as “declared war of of any other armed conflict…. b/w two or more … high contracting parties, even if the state of war is not recofnized by one of them”. This definition requires that hostilities must exist b/w two or more States.
When IAC exists, it is governed by 1977 Additional Protocol I.
NIAC is defined under Geneva Convention as “ an armed conflict not of an international character occurring in the territory of one of the high contracting parties. Situations of internal disturbances and tensions such as riots, isolated & sporadic acts of violence & other acts of a similar nation encompass NIAC, a limitation drawn from Additional protocol II to the 1949 Geneva Convention.
It is important to know here that Russia is the Signatory of the ‘ALL’ Additional protocols of 1949 conventions while Syria only ratified the AP I, which applies on IAC. So Syrian conflict cannot be governed by AP II if the conflict is of NIAC.
Conflict in Syria can be categorized as NIAC because neither Syria nor Russia are involved in armed conflict with any international state or party but it is a domestic infighting. Russian delegate even informed UN that it’s forces were involved in carrying out missions for protecting 7 supporting the Syrian Defence Forces. In addition to that the issue did not get internationalize because Wagner Group was invited / contracted by Syrian Govt in order to take part in the armed conflict.
While no International treaty explicitly address the condct of PMCs like Wagner Group in Syria, but there are three that address the conduct of mercenaries in armed conflicts, they are AP I, the 1977 convention of Organization of the African Unity for the Elimination of Mesmerism in Africa (OAU Convention) & International Convention against the Recruitment, Use, Financing and Training of Mercenaries
Since OAU convention is regional & it is limited to African States, it has no jurisdictions in conflict in Syria, while AP I is applicable for IAC. AP I cannot govern the conflict in Syria & activities of PMCs because Syrian Conflict has been classified as NIAC.
The only convention that would govern the activities of PMCs during IAC & NIAC is International Convention against the Recruitment, Use, Financing and Training of Mercenaries. However it may not be applicable to Syrian Conflict because Russia is not the Signatory to the convention. Hence PMCs engaged in Syria would not run a foul of International Law. However it is pertaining to note here that Syria is the signatory of the Mercenaries Convention and has to abide by it. Article 5 speaks to the conduct of states which are prohibited from recruitment, using, financing & training of Mercenaries.
But before the conflict is governed by this convention, it has to be investigated by the UN that whether PMCs in Syria are indeed Mercenaries. Whether they were specially recruited for the specific purpose of fighting, whether they were involved directly in the conflict by direct participation. “Direct Participation in AP I (which applies to Syria & Russia) is defined as “ acts of war by their nature & purpose are likely to cause harm to the personnel & equipment of the enemy armed forces.”
Mercenaries Convention also states that for an individual to be categorized as Mercenary, they must not be a national of a party to the conflict nor a resident of territory controlled by a party to the conflict. This plain test of this element refers to the nationality of the PMCs. In our case PMCs from russia are not a party to the conflict and cannot be classified as Mercenaries are they are not nationals or residents of Syria, Iraq or other state.
The above convention also requires that the Mercenaries may not be members of the armed forces of a party to the conflict nor may be sent by a State which is NOT a party to the conflict on official duty as members of it’s armed forces. Since members of Wagner Group are employees of Private company & not a member of Miliary of Russia or Syria, they do not meet the definition of Mercenaries.
As mentioned in the start of this report that diplomats & states around the world are raising concerns over the extensive use of Private Military Contractors in Armed Conflict around the world. The definition of the Mercenary is outdated in the International law and needs to be updated.
References:
(by Amaa'n)
The presence of private military and security companies (PMSCs) in armed conflicts has traditionally drawn scant attention. In some ways this is surprising; as such, reliance on private entrepreneurs during war is nothing new. Such entrepreneurs have played a role in wars past and present, from ancient times to the conflicts of our day. But historians apparently considered them no more than an ancillary aspect of military affairs, their status and significance warranting no particular scrutiny.
At the 72nd plenary meeting on 4 December 1989, the UNGA concluded a convention as its resolution 44/34. This convention was officially titled International Convention against the Recruitment, Use, Financing and Training of Mercenaries and only entered into force on 20 October 2001. There are only 43 states that have ratified this convention to date, & Pakistan is not among the signatories.
This convention defines Mercenaries as any person who:
- Is specially recruited locally or abroad in order to fight in an armed conflict;
- Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party;
- is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;
- Is not a member of the armed forces of a party to the conflict; and
- Has not been sent by a State which is not a party to the conflict on official duty as a member of its armed forces.
A mercenary is also any person who, in any other situation:
- Is specially recruited locally or abroad for the purpose of participating in a concerted act of violence aimed at: Overthrowing a Government or otherwise undermining the constitutional order of a State; or Undermining the territorial integrity of a State;
- Is motivated to take part therein essentially by the desire for significant private gain and is prompted by the promise or payment of material compensation;
- Is neither a national nor a resident of the State against which such an act is directed;
- Has not been sent by a State on official duty; and
- Is not a member of the armed forces of the State on whose territory the act is undertaken.
Montreux Document of September 2008, which is also called “Swiss Initiative”, is a fruit of Swiss Govt & Intl Committee of Red Cross. It brought 17 Govts & diplomats from across the world to define the good practices pertaining to PMCs & Private Security Contractors. So far this document has been ratified by 57 states including US & Ukraine. This document is intended to have a practical bearing on the interaction between states and PMSCs. The Montreux Document describes good practices in implementing existing international legal obligations. These good practices are designed to help governments to establish effective oversight and control over PMSCs. The good practices cover a number of practical areas, including: authorisation systems, contract provisions, and licensing requirements, as well as suggesting a number of effective methods for states to oversee the PMSCs they come into contact with. It is important to note here that this document IS NOT LEGALLY BINDING for the signatory states or others. To be noted here that Pakistan is not among the signatories of this document to date.
UNGA’s Third Committee (Social, Humanitarian and Cultural) 73rd Session, 39th & 40th Meetings (addressed that Mercenaries, Private Military Contractors Can Destabilize Rule of Law, this meeting was held on 30 October 2018. The working group addressed the concerns of the attendees related to the use of mercenaries & foreign fighters in armed conflicts. This session was attended by Russian, EU, Cuban & Pakistani delegates.
Saeed Mokbil, Chairperson-Rapporteur for the Working Group on the use of mercenaries, said mercenary related activities can jeopardize the achievement of Sustainable Development Goal16 (peace, justice and strong institutions) As such, the fight against impunity — including for violations committed by non State armed actors — is essential in promoting the rule of law. Yet, pervasive impunity for crimes committed by mercenaries is a common challenge. He recommended the adoption of an international legally binding instrument to address their activities, and that domestic regulatory legislation be put in place, alongside procedures for oversight, registration, licensing and vetting of such private contractors.
The representative of Cuba reiterated her country’s will to submit a draft resolution on the use of mercenaries, based in part on the Working Group’s report. She also addressed that whether a new definition of Mercenaries was needed in UN in the light of recent events (referring to Russian intervention in Syria).This Working Group found links between mercenary activities and private military and security companies. It was established that both can threaten the enjoyment of human rights, as some private military and security personnel have been involved in violations of international humanitarian law and international human rights law. Mr. Mokbil – the chairperson underlined the similarities between mercenaries and foreign fighters, despite the absence of a legal definition for the latter. Both categories are comprised of external fighters that intervene in conflicts, motivated by financial gain and ideology.
1 - Case Study – PMCs for Security Operations:
On 22 October 2014, the Washington jury found four former Blackwater (US private military and security company) private security guards guilty of several charges—murder in the first degree, manslaughter, and attempted manslaughter. This is the result of a 7-year investigation and proceedings following the all-out shoot-out at Nisour Square, Baghdad, Iraq, on 16 September 2007.The first instance decision (pending appeal), based on the jury’s verdict, represents a rare example where the employees of a private military and security company have been found accountable and responsible for conduct exhibited during the performance of a contracted security service that has caused bodily harm and death to innocent bystanders. It also represents a rare occasion where the issue of the use of force by private actors has been legally scrutinized.
Private Military Contractors for Maritime Security
Following the plight of individual coastal states (most notably, the United States (US)) and certain parts of the shipping industry, more and more nongovernmental actors became reliant on the private maritime security services within a short period of time, forcing the International Maritime Organization (IMO) to reassess its position with regard to the use of force at sea by private actors.2 This made it necessary to adjust the international approach as, up to that point, it was in principle prohibited for private actors to carry arms—the notable exception (recognized by the relevant international maritime law and law of the sea conventions and relevant domestic law maritime codes and acts) allows the Masters of Vessels and First Officers to make use of personal firearms that have to be kept under lock and key at all times. The security of people and goods at sea—falling at the same time within the sphere of individual, national, and also common interests—thus became reinforced by an unprecedented enforcement methodology
Governed by the standard security services on board vessel contract form, the GUARDCON—Contract for the Employment of Security Guards on Vessels (GUARDCON). The contractual provisions, such as the example of GUARDCON, are often accompanied by the standards of conduct and separate rules on the use of force, developed either by an individual private maritime security company or by a professional body or association (usually consisting of private maritime security companies and/or other interested stakeholders). Several guidelines and recommendations, drafted particularly for the maritime domain (i.e., the IMO Guidance, the Baltic and International Maritime Council (BIMCO) Guidance, the 100 Series Rules, the IAMSP Rules on Use of Force, the ISO/PAS 28007:2012, and the ASIS/ANSI PSC are the few guidelines & recommendations that are applicable for the use of force at sea.
Due to the fact that none of these documents are mandatory and legally binding, they are necessarily accompanied and intertwined with domestic regulation or nonbinding recommendations, as well as general domestic criminal and civil laws, especially in connection to the issue of self-defense.
the majority of states have continued to adhere to the state’s monopoly on violence principle at sea,5 despite the fact that this principle has long been breached with regard to the activities of private military and security companies on land, including such companies working directly for government institutions in and outside of conflict (war) zones. But when the shipping and insurance driving forces ushered in the private contractors in the maritime domain, the states, already accustomed to the utilization of private security industry on land, soon adjusted to the emerging subbranch of the global private security industry. Initially—keeping in mind that the predominant maritime-related interest of the international community as a whole continues to be the security of people and goods at sea—the introduction of firearms held by private entities into that realm was considered as a violation of the common interest (leading to the possible spread of and an increase in violence). This perception has, however, gradually transformed into a compromise solution whereby the security services are to be offered by professional entities trained and properly equipped to utilize violent means when no other means are available to thwart the realization of danger to people and goods at sea in accordance with the best industry practice, such as the example of the Montreux Document (not relevant for the maritime sector).6
The role of the state was, therefore, diminished to a certain extent, partially due to the private contractual nature of private maritime security services (as opposed to such instances when states contract private actors to do their bidding), even though states persist in their determination to remain the watchful dog through carefully drafted legislation. The impact of this effort is, however, dubious due to the practical difficulties of control and supervision enforcement. At the same time, the role of the private sector in the protection of seas and oceans continues to increase—the scope of utilization echoing beyond any precedent.
2- Case Study – PMCs for Maritime Security:
On 15 February 2012, two Italian marines, providing government-authorized Vessel Protection Detail (VPD)9 service to the Italian tanker Enrica Lexie, allegedly shot and killed two Indian fishermen.
On 2 July 2020, the Permanent Court of Arbitration recognized the functional immunity of the two Italian marines, noting that they were engaged in a mission on behalf of the Italian Government, and thus ruled that the process continue in Italy. However, Italy was required to find an agreement with India in order to compensate for the two deaths and for the physical and moral damages suffered by the crew members and the vessel.
In January 2014, India decided to prosecute the Italian marines under the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA). The SUA Convention was passed in 1988 with the goal of suppressing international terrorism. Italy criticized the prosecution pursuant to the SUA Convention as equating the incident to an act of terrorism.
On 7 March 2014, India dropped the SUA charges against the marines. On 7 February 2014, the charges were downgraded from murder to violence meaning the marines would not face the death penalty if convicted. During all the period, Italian authorities maintained that India lacked jurisdiction in judging the case, since, based on the Enrica Lexie positional records, the ship was outside the Indian territorial waters, and well in the international navigation area. Furthermore, they maintained that India lacked jurisdiction for arresting the two marines, since they were on an Italian ship in international waters, charged of security duties. As such, they were military personnel on duty in defense of a part of the national territory, and could not be considered terrorists or being accused of murder. India countered that if the marines were on military duty and had killed unarmed civilians they could be charged with war crimes under the Geneva convention and murder was the lesser charge. From their side, Indian authorities delayed the formalization of accuses, thus stemming reaction from Italian authorities, which sought support from the European Parliament. The latter decided to back Italian position, with special reference to the lack of any formal accuse which justified the detention. In January 2015 European Parliament issued an official resolution, according to which human rights of the two Italian marines were violated.
Private Military Contractors For Peace Keeping Operation & Armed Conflict on land
the trend in recent years has been progressively to privatize important sectors of governmental functions through the outsourcing of security and military services to private actors. Private military and security companies or ‘ con-tractors ’ thus replace soldiers and members of the armed forces in a variety of situations that include armed conflict, prolonged military occupation, peacekeeping, and territorial administration in post-conflict institutional building and intelligence gathering.
At a political level, the reliance on private contractors rather than on sol diers diminishes the effectiveness of domestic mechanisms of democratic control over armed forces, as required in all constitutional democracies. It offers the possibility of circumventing the requirement of parliamentary authorization for specifi c missions and services, or of going beyond limits on the number of troops to be deployed abroad or allowed to serve in a theatre of military operations. From a legal point of view, the question arises as to what is the status of these new actors in international law and more particularly in the context of the international law of armed confl icts. Are they to be considered mercenaries, and under what circumstances? Or are they part of the armed forces? When do their military services amount to a direct participation in hostilities? Is their conduct subject to the rules of international humanitarian law? And if they are not to be assimilated into the armed forces, are they still bound by basic norms of international human rights and humanitarian law that protect life, integrity and property? And when private military companies commit abuses in the course of their conduct, what jurisdictional opportunities are available in order to provide civil remedies to victims and/or criminal prosecution of possible offences? Attempting to address these questions brings us to a grey area of the law, both international and domestic.
At the international law level, the extent to which primary human rights obligations apply to the conduct of private military companies remains unclear: first, because there is no agreement as to whether human rights obligations are binding upon private actors; second, because the conduct of these actors normally occurs abroad and therefore outside the ordinary territorial and jurisdictional sphere of application of human rights obligations. Consequently, at the level of secondary rules, a state may not be held responsible for having failed to prevent abuses by private military contractors, or for not having provided adequate remedies or prosecution, unless a certain degree of control existed over the conduct that caused the abuse. While with soldiers such level of control is in reipsa , since they are an integral part of the organic structure and apparatus of the state – with a chain of command, disciplinary oversight and mechanisms of enforcement that make them directly accountable to the state – private military ‘ contractors ’ are by definition only in a contractual relation with the hiring state. Thus their acts are not in principle acts of state but acts of private persons, even though their services often entail carrying weapons and exposing other persons to the risk of injury. The problem of accountability becomes even more complex when private military contractors are used by international organizations, such as the UN, the EU or NATO. In this case their conduct may call into play the still elusive concept of institutional responsibility of intergovernmental organizations.
If we move from the international law level to the level of domestic law and jurisdiction, the legal tools to ensure effective regulation of private military companies and monitoring of their activities become even more uncertain. Domestic laws vary enormously with respect to the legality of outsourcing of military services to private companies: some countries maintain an outright prohibition of such outsourcing; others even criminalize the serving of nationals in such companies as such service is assimilated with mesmerism; in many legal systems the provision of military and security services is subject to strict licensing and vetting procedures for individual employees, while in others it may be treated as part of the exercise of economic freedoms.
Case Study – Use of PMCs in Syria & the legal aspects
In feburary 2018, a combined Syrian Army & Wagner Group (Russian PMCs)Unit attacked a US Special Operations (SDF OP) in Deir ez Zour, Syria. US Firepower quickly repelled the attackers that resulted in death of almost 200 men on the Syrian side.
Conflict in Syria involves fighting b/w different groups such as ISIS, Free Syrian Army (group calling for Political reforms) & Syrian Defence Forces that support the Assad Regime. US & Russians are party to the conflict as well but at the heist of other primary groups mentioned earlier.
In 2015, Russian troops landed in Syria providing logistical support only along with Training of Syrian forces, however it wasn’t long when in October 2015, Wagner Group landed in Syria, initially tasked with protecting the Govtmenta infrastructure, protection of military bases etc. In 2016, Syrian Ministry of Oil & Natural Resources & Russian Minstry of Energy reached a preliminary agreement with Evro Polis , private military contractor for the protection of oil fields. A draft copy of this agreement that surfaced the internet latter mentioned that the Security Firm was tasked to regain the control of Oilfields, oppose ISIS movement, protect, store, transport and sell the Oil & Gas produced from the wells. This showed that how a Security mission turned into Offensive Security mission.
So it was in February 2018, when Syrian Special Forces along with Russian PMCs carried out a Joint Operation in Deir ez Zour, it engaged with US Special Forces – SDF that themselves were carryout counter – ISIS operations.
So how can we categorize the Syrian Conflict? In order to establish the legal grounds for use of PMCs in Syria it is important to understand first the classification of Conflict in Syria, that whether it is a International Armed Conflict or Non International Armed Conflict.
1949 Geneva Convention defines IAC as “declared war of of any other armed conflict…. b/w two or more … high contracting parties, even if the state of war is not recofnized by one of them”. This definition requires that hostilities must exist b/w two or more States.
When IAC exists, it is governed by 1977 Additional Protocol I.
NIAC is defined under Geneva Convention as “ an armed conflict not of an international character occurring in the territory of one of the high contracting parties. Situations of internal disturbances and tensions such as riots, isolated & sporadic acts of violence & other acts of a similar nation encompass NIAC, a limitation drawn from Additional protocol II to the 1949 Geneva Convention.
It is important to know here that Russia is the Signatory of the ‘ALL’ Additional protocols of 1949 conventions while Syria only ratified the AP I, which applies on IAC. So Syrian conflict cannot be governed by AP II if the conflict is of NIAC.
Conflict in Syria can be categorized as NIAC because neither Syria nor Russia are involved in armed conflict with any international state or party but it is a domestic infighting. Russian delegate even informed UN that it’s forces were involved in carrying out missions for protecting 7 supporting the Syrian Defence Forces. In addition to that the issue did not get internationalize because Wagner Group was invited / contracted by Syrian Govt in order to take part in the armed conflict.
While no International treaty explicitly address the condct of PMCs like Wagner Group in Syria, but there are three that address the conduct of mercenaries in armed conflicts, they are AP I, the 1977 convention of Organization of the African Unity for the Elimination of Mesmerism in Africa (OAU Convention) & International Convention against the Recruitment, Use, Financing and Training of Mercenaries
Since OAU convention is regional & it is limited to African States, it has no jurisdictions in conflict in Syria, while AP I is applicable for IAC. AP I cannot govern the conflict in Syria & activities of PMCs because Syrian Conflict has been classified as NIAC.
The only convention that would govern the activities of PMCs during IAC & NIAC is International Convention against the Recruitment, Use, Financing and Training of Mercenaries. However it may not be applicable to Syrian Conflict because Russia is not the Signatory to the convention. Hence PMCs engaged in Syria would not run a foul of International Law. However it is pertaining to note here that Syria is the signatory of the Mercenaries Convention and has to abide by it. Article 5 speaks to the conduct of states which are prohibited from recruitment, using, financing & training of Mercenaries.
But before the conflict is governed by this convention, it has to be investigated by the UN that whether PMCs in Syria are indeed Mercenaries. Whether they were specially recruited for the specific purpose of fighting, whether they were involved directly in the conflict by direct participation. “Direct Participation in AP I (which applies to Syria & Russia) is defined as “ acts of war by their nature & purpose are likely to cause harm to the personnel & equipment of the enemy armed forces.”
Mercenaries Convention also states that for an individual to be categorized as Mercenary, they must not be a national of a party to the conflict nor a resident of territory controlled by a party to the conflict. This plain test of this element refers to the nationality of the PMCs. In our case PMCs from russia are not a party to the conflict and cannot be classified as Mercenaries are they are not nationals or residents of Syria, Iraq or other state.
The above convention also requires that the Mercenaries may not be members of the armed forces of a party to the conflict nor may be sent by a State which is NOT a party to the conflict on official duty as members of it’s armed forces. Since members of Wagner Group are employees of Private company & not a member of Miliary of Russia or Syria, they do not meet the definition of Mercenaries.
As mentioned in the start of this report that diplomats & states around the world are raising concerns over the extensive use of Private Military Contractors in Armed Conflict around the world. The definition of the Mercenary is outdated in the International law and needs to be updated.
References:
- https://link.springer.com/chapter/10.1007/978-3-319-51274-7_10
- https://www.ohchr.org/EN/ProfessionalInterest/Pages/Mercenaries.aspx
- https://www.cambridge.org/core/jour...cted-pirates/FDC86A68E2A2427DD9381A95135D001C
- https://www.un.org/press/en/2018/gashc4246.doc.htm
- https://www.newamerica.org/internat...robing-the-edges-of-russias-proxy-strategies/
- THE MONTREUX DOCUMENT on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict
