The Involvement of Mercenaries and Private Military Security Companies in Armed Conflicts: What does IHL Say?

9 November 2021

Several armed conflicts classified in our RULAC online portal see the participation of mercenaries or private military security companies (PMSC) alongside states’ armed forces. This is notably the case for instance in Mozambique and Nagorno Karabakh.

Dr Chiara Redaelli, in charge of RULAC and an expert in international humanitarian law (IHL), answers our questions regarding what IHL says about this phenomenon.

Does IHL allow the participation of private military security companies and mercenaries in armed conflicts?

First of all, it is necessary to distinguish between private military security companies (PMSCs) and mercenaries. PMSCs are private business entities that provide military or security assistance to states, companies, or other organizations. On the other hand, mercenaries are defined in Article 47 of Additional Protocol I to the Geneva Conventions (AP I). It should be noted that seldom the staff of PMSCs can be considered a mercenary as defined in AP I.

IHL does not prohibit the use of PMSCs and mercenaries during armed conflicts. Nevertheless, two conventions ban the use of mercenaries in armed conflicts: the 1977 Organisation of African Unity Convention for the Elimination of Mercenarism in Africa and the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries. These conventions criminalize not only the resort to mercenaries but also the participation in armed conflicts as a mercenary.

What is their status?

Under IHL, staff of PMSCs and mercenaries as considered civilians. This means that they have no right to directly participate in hostilities and, if captured, they are not entitled to prisoner of war status. In any case, this does not mean that they are never protected under IHL, as they enjoy the protection granted by the Fourth Geneva Convention to civilians.

Are they legitimate targets under IHL?

Just like civilians, PMSCs staff and mercenaries are not legitimate targets unless and for such time as they take direct participation in hostilities. However, this is particularly challenging with regard to PMSCs that have only defensive functions, as it is often the case: how to distinguish between acts of self-defence and direct participation in hostilities?

The question is crucial because PMSC staff is a lawful target only if they take direct participation in hostilities, not during self-defence activities. While the debate is still open, it should be noted that even defensive functions may amount to an armed attack as defined in IHL (Article 49 AP I), and hence qualify as direct participation in hostilities.

Is IHL applicable to PMSCs and mercenaries?

Just like all actors present in a country affected by an armed conflict, IHL is applicable to PMSCs staff and mercenaries, who are therefore bound by IHL and are criminally responsible should their conduct amount to war crimes.

Specifically, with regard to PMSCs, the Montreux Document is a non-binding inter-state instrument that aims at guiding states in their use of PMSCs. Furthermore, the International Code of Conduct for Private Security Service Providers (ICoCa) is the only instrument that lists the obligations of PMSCs. The main PMSCs have signed the document and have committed to implementing its obligations.

Can a private military security company be a party to an armed conflict?

Generally speaking, PMSCs are not a party to the conflict. As mentioned before, their staff may qualify as civilians taking direct participation in hostilities, should their actions qualify as direct participation in hostilities (Article 51(3) of AP I, Article 13(3) of Additional Protocol II).

The only case when a PMSC could be a party to an armed conflict would be if the company itself started engaging in hostilities as an autonomous party, i.e. not as providing a service to a client. In this case, it would be necessary to assess whether the two criteria required by IHL are met, namely (1) the violence between the PMSC and the adverse party needs to meet the threshold of intensity and (2) the PMSC must be sufficiently organized.

MORE ON THIS THEMATIC AREA

15th anniversary logo News

A dedicated Logo for our 15th Anniversary

31 August 2022

As we celebrate this year our 15th anniversary, we developed on this occasion a dedicated logo to mark this birthday and accompany all our communication and events around this milestone!

Read more

Donbass, destruction before a building News

Our Experts and Resources on Ukraine

15 December 2022

Discover our resources and what our experts say about the situation in Ukraine, with regular updates to include new events, articles and comments!

Read more

Nuclear missiles Event

Changing the Rules of the (Nuclear) Game: Voices from the Humanitarian, Technological, Strategic and Legal Fields

20 February 2023, 18:00-19:30

This IHL Talk will address today's place of nuclear weapons, including their humanitarian impact, the impact of technological advancements, the relevance of the deterrence narrative and implications on the international legal framework.

Read more

Aleppo, Syria: great Umayyad mosque. Destructions. Event

Book Launch: Cultural Heritage and Mass Atrocities

1 March 2023, 18:15-20:00

At this book launch, one of the book’s editors will discuss cultural heritage and mass atrocities with contributors to the book and specialists.

Read more

Short Course

The Law of Non-International Armed Conflicts

16 March - 4 April 2023

This online short course discusses the protection offered by international humanitarian law (IHL) in non-international armed conflicts (NIACs) and addresses some problems and controversies specific to IHL of NIACs, including the difficulty to ensure the respect of IHL by armed non-state actors.

Read more

Yemen,  Sana'a, Faj Attan district. Destruction. Short Course

From Use of Force to Responsibility to Protect

24 May - 6 June 2023

This online short course provides an overview of the content and evolution of the rules governing the use of unilateral force in international law, including military intervention on humanitarian grounds and the fight against international terrorism. It focuses on the practice of states and international organizations.

Read more

Screen Shot of Obsolete, a game made for the 7DFPS project in 7 days. Download for PC and Mac Project

Disruptive Military Technologies

Started in February 2020

This project aims at staying abreast of the various military technology trends; promoting legal and policy debate on new military technologies; and furthering the understanding of the convergent effects of different technological trends shaping the digital battlefield of the future.

Read more

Central African Republic, Ouham province, village of Ouogo. International Humanitarian Law dissemination session to members of the Peoples' Army for the Restoration of Democracy. Project

From Words to Deeds: A Study of Armed Non-State Actors’ Practice and Interpretation of International Humanitarian and Human Rights Norms

Completed in January 2017

This project aimed at compiling and analysing the practice and interpretation of selected international humanitarian law and human rights norms by armed non-state actors (ANSAs). It had a pragmatic double objective: first, to offer a comparative analysis of IHL and human rights norms from the perspective of ANSAs, and second, to inform strategies of humanitarian engagement with ANSAs, in particular the content of a possible ‘Model Code of Conduct’.

Read more

Cover page of the study Publication

From Words to Deeds A Study of Armed Non-State Actors’ Practice and Interpretation of International Humanitarian and Human Rights Norms: Research and Policy Conclusions

published on September 2022

Annyssa Bellal, Pascal Bongard, Ezequiel Heffes

Read more