Members of Private Military companies and/as Unlawful Combatants?

Abstract

The recent changes in the physiognomy of the battlefield have provoked intense discussions about the role and legal status of private military and security companies (PMSCs) and the relationship between them and some traditional, albeit recently redefined concepts, especially that of unlawful combatants. The term unlawful combatants, and other terms occasionally used in its stead, have gradually evolved to encompass three different categories of persons: combatants failing to distinguish themselves from civilians; persons taking a direct part in hostilities without being legally entitled to do so; and, in the post-September 11th, 2001, period, enemies in the “war on terror”. This factual categorization does not translate into a normative one, because persons from different categories, and sometimes even from the same category, do not have identical legal statuses and are subject to different sets of IHL norms. There is no obvious link between PMSCs and unlawful combatants. Some PMSCs’ members may fall into one of the three categories of unlawful combatants, but in view of PMSCs’ plurality, there is no pattern here. The concept of unlawful combatants therefore cannot truly enrich the discussion on private military and security companies, tending to introduce confusion rather than clarity.