Summary: War - a Business
Private Security Services and Mercenaries in Light of the Law of War
Georg Weingartner
According to traditional Western understanding, the maintenance of security at home and the defense against external threats belong to the fundamental tasks of a nation state. However, over the past few years many states have undergone a paradigmatic change that has softened up the state’s monopoly of exercising power by increasingly privatizing public security and outsourcing a number of tasks to private companies that formerly were exclusively state matter.
Similar to mercenaries in the proper sense, Private Military Companies (PMCs) and Private Security Companies (PSCs) generate their personnel through direct or indirect participation in armed conflicts, thus influencing - often significantly - the military situation in the theater. What distinguishes them from mercenaries in the stricter sense, however, is the fact that up to now they have exclusively been working for official governments legitimized on the basis of international humanitarian law and not for unofficial armed groups or private persons.
There is, however, the question about the status of PMC and PSC personnel with regard to international humanitarian law within the frame of armed conflicts, that needs to be answered. Questions often discussed in this context concern a possible civilian status of such personnel, the company’s statutes in case a member is taken prisoner, and the status of local installations run by such companies from the perspective of international humanitarian law. To be quite clear, one should strictly differentiate between PMCs and PSCs on the one hand and mercenaries in the proper sense on the other.
On account of an analysis PMC and PSC members are to be considered "belligerents” in terms of international humanitarian law, if they carry weapons openly and act in a military manner or apply military methods, respectively. Consequently a PMC or PSC member or, depending on the case at hand, even his superior is to be considered liable to punishment, if international humanitarian law is violated. According to the current understanding, such liability regulations apply to natural persons only. PMCs and PSCs can therefore not be held legally responsible, even if a member thereof is in clear violation of international humanitarian law.
On the other hand we have mercenaries whose recruitment, training, and financing - though ostracized by international humanitarian law - is not explicitly forbidden. Any attempt to ban mercenaries have failed thus far, because of the narrow definition of the term. Yet, one can see that efforts are being made in the direction of criminalizing mercenaries and their activities. However, there is no public interest to ostracize PMCs and PSCs, despite their profit oriented motivations. Nevertheless, it would be desirable to have some tools at hand to control their activities and, if necessary, cut down on them. This might also help improve the marred image of the security services held responsible for "privatizing war”.
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