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Sié Chéou-Kang CenterPrivate Security Monitor

Participants meet for the tenth session of the UN Human Rights Council.

Global Efforts

Generally Applicable International Law

States, corporations, and individuals that contract with private military and security firms all possess rights and duties under international law. Applicable legal standards can be found in a range of international instruments pertaining to state responsibility, individual criminal liability, human rights and international humanitarian law.

The main international texts and treaties that apply in some way to the use and operation of PMSCs appear below. Note that information about the applicability and status of individual conventions and treaties vis-à-vis specific states is beyond the scope of the TIPSS project and is not reported here.

International humanitarian law and the challenges of contemporary armed conflicts

Author: ICRC
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This document produced by the International Committee of the Red Cross provides an in-depth discussion of international humanitarian law (IHL) as it applies to the issues of modern armed conflict, including the use of private military and security companies (PMSCs). The report includes an overview of the applicability of IHL in a variety of contemporary circumstances such as the protection of personnel and property, and new technologies in modern warfare such as autonomous weapons systems. Section VII (page 59) specifically addresses the use of PMSCs and remaining challenges in regulation and oversight, particularly regarding support for the 2008 Montreux Document.

International Law

Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction

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The Chemical Weapons Convention (CWC) is an arms control agreement that builds upon earlier international agreements to outlaw the production, stockpiling and use of chemical weapons. The CWC entered into force in 1997 and has achieved nearly universal ratification. It requires the declaration and verified destruction of existing chemical weapons and implements a comprehensive inspection regime for both government and private chemical facilities to verify chemical weapons are not being produced. Various PMSC guidelines and codes of conduct require PMSCs to refrain from resorting to illegal arms, including chemical weapons, and invoke the CWC by name. 

The Geneva Conventions of 1949 and their Additional Protocols

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The Geneva Conventions of 1949 and the two Additional Protocols of 1977 are at the core of international humanitarian law, the body of international law that regulates the conduct of armed conflict and seeks to limit its effects. The Geneva Conventions protect in particular persons who are not or no longer participating in hostilities: civilians and persons taken captive in military conflict. It is oft-debated whether PMSCs are combatants or civilians under the Geneva Conventions, a critical distinction that affects the rights and treatment of PMSCs by adverse parties. Today, the Geneva Conventions and their Additional Protocols are regarded as customary international law binding on all states and all parties to conflicts, including private military and security personnel operating in the conflict zone.

  1. Geneva Conventions I-IV (1949)
  2. Additional Protocols I and II to the Geneva Conventions (1977)

Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land

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The Hague Conventions were among the first formal statements of the laws of war and war crimes. The Hague Convention on Neutral Powers restricts neutral states from provided direct or indirect assistance to warring states; in particular neutral states cannot allow the recruitment of mercenaries on their territory. It has been suggested that the Hague Convention thus prevents states from allowing private military and security firms to incorporate or operate from their territory. 

International Convention against the Recruitment, Use, Financing and Training of Mercenaries

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The International Convention against the Recruitment, Use, Financing and Training of Mercenaries was adopted by UN General Assembly in 1989 and came into force in 2001.  The Convention narrowly defines “mercenary,” criminalizes their use, and prohibits states from recruiting, using, financing or training mercenaries. The Convention is not self-executing and requires transformation into national legislation.

International Convention for the Protection of All Persons from Enforced Disappearance

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This Convention was adopted both by the Human Rights Council and the UN General Assembly by consensus in 2006 and entered into force in December 2010. The Convention identifies “enforced disappearance” as a self-standing human rights violation, prohibits secret detention, and establishes the rights of families to get information about what has happened to and the location of relatives who have been detained. States that become party to the Convention must incorporate a specific crime of “enforced disappearance” in their national laws, must investigate complaints and reports of enforced disappearance, and bring those responsible to justice.

Draft Articles on Responsibility of States for Internationally Wrongful Acts

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The Draft Articles of State Responsibility were adopted by the International Law Commission (ILC) at its fifty-third session, in 2001. The ILC’s mandate is to codify and progressively develop international law, and it did so in the Draft Articles. The Articles set forth the imputability to a State the conduct or an individual that is contrary to an international obligation, including the responsibility of a State for individual wrongs even when and where the individual acted outside his competence. 

The Commentary on the ILC Articles of State Responsibility, in attempt to provide clarity as to what an “entity” empowered by the state to exercise governmental authority might be, cites the example of a private security firm that runs a prison and therefore has the power to detain and discipline. 

Universal Declaration of Human Rights

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The Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly on 10 December 1948, is generally agreed to be the foundation of international human rights law. It represents the universal recognition that basic rights and fundamental freedoms are inherent to all human beings, inalienable and equally applicable to everyone. Though non-binding, the UDHR is often referenced as the authoritative legal source and a constraint on private behavior. It contains a number of articles relevant to security work, including Article 3 (right to life), Article 5 (prohibition on torture), Article 7 (equal protection under the law), Article 9 (prohibition on arbitrary arrest and detention), and Article 11(1) (presumption of innocence). 

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

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Adopted in 1984 and entered into force in 1987, the Convention Against Torture (CAT) prohibits the use of torture or any other inhuman or degrading treatment in attempting to obtain information from a suspect. It is one of the most important declarations to be observed by military and security officials in the exercise of their duty. The CAT established the Committee against Torture, which can consider individual complaints and complaints about torture from one state about another.

International Covenant on Civil and Political Rights

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The International Covenant on Civil and Political Rights (ICCPR) was adopted in 1966 and entered into force ten years later. It commits signatory states to respect the civil and political rights of individuals, including the right to liberty and security. Violations of these rights may occur by any agents providing police services or exercising police power, including PMSCs. The Optional Protocol to the ICCPR, also adopted in 1966, sets up systems for the Human Rights Committee to receive and consider claims from individuals who may be victims of human rights violations by any signatory states.

Rome Statute of the International Criminal Court

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The Rome Statute is the treaty that established the International Criminal Court (ICC). It was adopted in 1998 and brought into force in 2002.  The Rome Statute sets forth the jurisdiction and functioning of the ICC, granting it the power to prosecute individuals for the most serious crimes of international concern including genocide, war crimes, and crimes against humanity.