The role of private military and security companies in non-international armed conflicts: ius ad bellum and ius in bello issues

Abstract

The paper addresses ius ad bellum and ius in bello issues arising from the activities of private military and security companies (PMSCs) in non-international armed conflicts (NIAC). This legal analysis, which has so far been neglected by scholars, is crucial given that most conflicts where PMSCs are involved qualify at least in part as internal (e.g. Iraq, Afghanistan, Darfur (Sudan)). The ius ad bellum analysis hinges upon a distinction between the right of the legitimate government - and to some extent of national liberation movements- to make recourse to PMSCs to restore or maintain internal law and order or to repel an aggression, and the prohibition to use PMSC for combat purposes or other action on the part of armed opposition groups or third parties. At the same time, several arguments are presented to the effect that the right of the government to use foreign armed force, including services provided by private actors, is subject to a number of limitations. As to the ius in bello inquiry, where the question of the status of PMSCs, their scope of protection from attack, their treatment in case of deprivation of liberty and the responsibility of an armed opposition group under international humanitarian law are analysed, places special attention to the notion of armed forces applicable, according to international humanitarian law, in a NIAC. This investigation shows that in very few instances can PMSC members fall under the category of a state’s armed forces. Indeed the vast majority of PMSC members qualify as civilians. As to the responsibility aspect of PMSC actions, only the question of the international liability of armed opposition groups is examined with special emphasis being placed on the due diligence obligations accruing both to the group and the state.