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 Alexandra Yu. Skuratova, Elena E. Korolkova INTERNATIONAL HUMANITARIAN LAW

INTERNATIONAL HUMANITARIAN LAW

DOI: https://doi.org/10.24833/0869-0049-2020-4-81-94
Research article
Received 01.10.2020
Approved 04.12.2020
Alexandra Yu. Skuratova
Moscow State Institute of International Relations (MGIMO-University) MFA Russia
76, Prospect Vernadskogo, Moscow, Russian Federation,119454
[email protected]
ORCID: 0000-0001-8513-8719

Elena E. Korolkova
Prosecutor's office of the Orenburg region
51, Ul. Kobozeva, Orenburg, Russian Federation,460000
[email protected]
ORCID: 0000-0001-8932-5044

PRIVATE MILITARY AND SECURITY

COMPANIES IN INTERNATIONAL LAW
INTRODUCTION. The article analyses the sources of documents drafted by the United Nations International
international law, national legislation of the Russian Fed- Law Commission, special rapporteurs and working
eration, as well as that of certain foreign States regulating groups on the matter, and State practice. It also addresses
the operation of private military and security companies Russian and foreign legal scholarship.
(PMSCs) in armed conflict. The article highlights the out- From a methodological perspective, this study relied on
comes of the work of the UN Special Rapporteurs and the general scientific (analysis, synthesis, systemic ap-
Working Groups to study the activity of PMSCs and the proach) and private legal methods of knowledge (formal-
impact it had on the observance of human rights. The legal, comparative legal studies).
authors further analyze the status of PMSC personnel RESEARCH RESULTS. Based on the study, it is argued
under international humanitarian law. The article also that an international treaty should be adopted to regulate
looks at the positions expressed by the delegations of the activities of PMSCs, which would establish mecha-
Member States during the discussion of the 2010 Draft nisms to monitor and hold PMSCs and their employees
Convention on Private Military and Security Companies legally accountable.
(PMSCs) and provides recommendations for developing KEYWORDS: private military and security companies,
an appropriate international regulatory framework. The armed conflict, international humanitarian law, Mon-
authors also examined State practice of the implementa- treux Document, combatants, civilians, direct participa-
tion of the The Montreux Document on Pertinent Inter- tion in hostilities.
national Legal Obligations and Good Practices for States
Related to Operations of Private Military and Security FOR CITATION: Skuratova A. Yu., Korolkova E.E.
Companies During Armed Conflict related to the opera- Private Military and Security Companies in Interna-
tion of private military and security companies during tional Law. – Moscow Journal of International Law.
armed conflict. 2020. No. 4. P. 81–94. DOI: 10.24833 / 0869-0049-
MATERIALS AND METHODS. The article contains 2020-4-81-94
an analysis of the main sources of international law, the

Moscow Journal of International Law • 4 • 2020

81
МЕЖДУНАРОДНОЕ ГУМАНИТАРНОЕ ПРАВО А.Ю. Скуратова, Е.Е. Королькова

МЕЖДУНАРОДНОЕ ГУМАНИТАРНОЕ ПРАВО

DOI: https://doi.org/10.24833/0869-0049-2020-4-81-94
Исследовательская статья
Поступила в редакцию: 01.10.2020
Принята к публикации: 04.12.2020
Александра Юрьевна Скуратова
Московский государственный институт международных отношений (МГИМО-Университет)
МИД России
119454, Российская Федерация, Москва, проспект Вернадского, д.76
[email protected]
ORCID: 0000-0001-8513-8719

Елена Евгеньевна Королькова

Прокуратура Оренбургской области
460000, Российская Федерация, Оренбург, ул. Кобозева, д.51
[email protected]
ORCID: 0000-0001-8932-5044

МЕЖДУНАРОДНО-ПРАВОВОЕ
РЕГУЛИРОВАНИЕ ДЕЯТЕЛЬНОСТИ
ЧАСТНЫХ ВОЕННЫХ И ОХРАННЫХ
КОМПАНИЙ
ВВЕДЕНИЕ. В статье анализируются источ- МАТЕРИАЛЫ И МЕТОДЫ. В статье проведен
ники международного права, акты националь- анализ основных источников международного
ного права России, некоторых иностранных права, материалы работы Комиссии междуна-
государств, регулирующие деятельность част- родного права ООН, специальных докладчиков
ных военных и охранных компаний (ЧВОК) в и рабочих групп по этому вопросу, практика
вооруженных конфликтах. Показаны результа- государств. Изучены доктринальные труды за-
ты работы специальных докладчиков и рабо- рубежных и российских специалистов в области
чих групп ООН по исследованию деятельности международного права. Методологическую осно-
ЧВОК, их влияние на соблюдение прав человека. ву исследования составили общенаучные (ана-
Проанализирован статус сотрудников ЧВОК лиз, синтез, системный подход) и частноправо-
с точки зрения норм международного гумани- вые методы познания (формально-юридический,
тарного права. Рассмотрены позиции делегаций сравнительно-правовой).
государств-членов при обсуждении проекта кон- РЕЗУЛЬТАТЫ ИССЛЕДОВАНИЯ. На основе
венции 2010 г. о регулировании деятельности проведенного исследования аргументируется
ЧВОК, предложены рекомендации для разработ- необходимость принятия международного до-
ки соответствующего механизма международ- говора, регулирующего деятельность ЧВОК, что
но-правового регулирования. Изучена практика позволит создать механизмы для контроля и
применения государствами Документа Монтрё привлечения к юридической ответственности
о соответствующих международно-правовых ЧВОК и их сотрудников.
обязательствах и передовых практических ме- КЛЮЧЕВЫЕ СЛОВА: частные военные и ох-
тодах государств, касающихся функциониро- ранные компании, вооруженный конфликт,
вания частных военных и охранных компаний международное гуманитарное право, Документ
в период вооруженного конфликта (Документ Монтрё, комбатанты, гражданские лица, непо-
Монтрё) и Международного кодекса поставщи- средственное участие в военных действиях.
ков охранных услуг.
Московский журнал международного права • 4 • 2020
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 Alexandra Yu. Skuratova, Elena E. Korolkova INTERNATIONAL HUMANITARIAN LAW

ДЛЯ ЦИТИРОВАНИЯ: Скуратова А.Ю., Ко- и охранных компаний. – Московский журнал

ролькова Е.Е. Международно-правовое ре- международного права. 2020. № 4. С. 81–94. DOI:
гулирование деятельности частных военных 10.24833 / 0869-0049-2020-4-81-94

1. Private Military and Security the methods of recruiting mercenaries to take part
Companies – general provisions in armed conflict. In 2005, the mandate expired. The

P
UN Commission on Human Rights formed a Work-
rivate military and security companies provide ing Group of the same name.
armed security services, police, and military The Special Rapporteur made the first mention
training, intelligence gathering and analysis, of private companies providing military services in
participate in peacekeeping missions, and complete armed conflict in 1994. It was noted that former sol-
other tasks [Gasser, Malzacher 2020:57-87]. The diers were recruited by the South African “Executive
army and the police have traditionally performed Outcomes” Company to participate in hostilities in
most of these functions [Nebolsina 2019: 76-106]. Angola, supporting the UNITA rebels. This was in
Several factors are of concern in this context. Firstly, contravention of Angola's legislation at the time. Pri-
PMSC personnel tend to work in an area of armed vate companies were often involved in armed con-
conflict, exposing their lives to immediate danger, flicts, both by the Governments and by non-state
and, unlike military personnel, they are not afforded armed groups. For example, “Sandline International”
any legal guarantees [Lehnardt 2017: 761-780]. Most contracted by the Government of Papua New Guin-
PMSC personnel involved in armed conflicts are na- ea, gathered intelligence, conducted military offen-
tionals of third States not involved in armed conflict. sives in Bougainville, supplied arms, ammunition,
The contracts they enter into often do not contain and military equipment to the scene of hostilities. At
any provisions on the actual nature of work involving the same time, the Defense Forces were placed under
participation in hostilities, further constraining their the command of the Company's personnel.
access to obtain medical care and compensation in Upon analyzing the state practice of African
the event of injury or death. Second, not uncommon states, the Special Rapporteur concluded that Gov-
are the violations of international law committed by ernments allow the recruitment of mercenaries, en-
PMSC personnel, which prompted the UN Human listed via private military companies. He also noted
Rights Commission to review the work of such com- that the notion of mercenaries was developing, trans-
panies and develop an appropriate legal framework. forming, and could often hide behind the façade of
private military companies providing military as-
2. UN’s work on the activities of Private Military sistance and expertise. The key ideas of the Special
and Security Companies Rapporteur were:
– Upholding peace is an inherent obligation
2.1. Outcomes of the work of the UN Special that a State cannot delegate;1
Rapporteur on use of mercenaries as a means of – As they progress and develop, private mili-
impeding the exercise of the right of peoples to tary companies may create a real threat to the gov-
self-determination (1987-2005) ernments;2
In 1987, the UN Commission on Human Rights – Outsourcing state functions to private com-
appointed a Special Rapporteur on the use of merce- panies will limit state sovereignty.3
naries as a means of violating human rights and im- As a result of the study, the Special Rapporteur
peding the exercise of the right of peoples to self-de- suggested that such companies be prohibited, as they
termination, with a mandate to study, among others, encourage mercenary activities. However, this po-

1
Report of the Special Rapporteur on the use of mercenaries. January 13, 1999, E/CN.4/1999/11. URL: https://ap.ohchr.org/
documents/dpage_e.aspx?m=105 (accessed: 09.09.2020).
2
Report of the Special Rapporteur on the question of the use of mercenaries. February 20, 1997. E/CN.4/1997/24. URL: htt-
ps://ap.ohchr.org/documents/dpage_e.aspx?m=105 (accessed: 09.09.2020).
3
Note by The Secretary-General on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise
of the Right of Peoples to Self-Determination. October 16, 1997, A/52/495. URL: https://ap.ohchr.org/documents/dpage_e.
aspx?m=105 (accesed: 09.09.2020).

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МЕЖДУНАРОДНОЕ ГУМАНИТАРНОЕ ПРАВО А.Ю. Скуратова, Е.Е. Королькова

sition later shifted to a proposal to develop a legal ing Group in 2010. These reasons included the
framework, should states deem legal the use of pri- following:
vate military and security companies in armed con- – the provisions of the Draft Convention on the
flict. responsibility of states for the conduct of private per-
sons are not in conformity with the rules of interna-
2.2. Work of the UN Working Group on the use of tional law, in particular, the Draft articles on Respon-
mercenaries as a means of violating human rights sibility of States for Internationally Wrongful Acts
and impeding the exercise of the right of peoples drafted by the UN International Law Commission;
to self-determination (2005-present). – the Draft Convention envisions obligations
for non-State actors (private military and security
The Working Group comprises five independ- companies) who cannot proprio motu be parties to
ent experts from different regions of the world, who the Convention;
serve on a rotating basis. – the Draft Convention distinguishes between
In 2008, a draft convention regulating PMSCs was “inherently governmental functions,” which PMSCs
proposed in Moscow by representatives of the Rus- are prohibited from performing, and other functions
sian Federation as part of a regional consultation. It that States may delegate. A common understand-
contained general provisions on the applicable terms ing of what “inherently governmental functions” are
and basic regulatory principles, principles of interna- within the framework of the Convention, in the view
tional law applicable to the activities of PMSCs, and of the experts, is problematic, given the different reg-
provisions on the international legal responsibility of ulatory approaches of States on this issue;
States for the acts of PMSCs. – the Draft Convention provides for the estab-
In 2010, at the 65th session of the United Nations lishment of a new body with powers to investigate
General Assembly, the Chair of the Working Group complaints by victims, but does not contain any pro-
presented a draft convention regulating the activities visions outlining its funding and operation.
of PMSCs, which was not adopted by the UN Mem- In the end, the delegates were divided on pos-
ber States, as some delegations criticized the text, as sible ways to design a regulatory framework. These
detailed below. include:
– basing the international legal framework on
2.3. The work of the Open-Ended the Montreux Document on Pertinent International
Intergovernmental Working Group to consider Legal Obligations and Good Practices for States Re-
the possibility of elaborating an international lated to Operations of Private Military and Security
regulatory framework on the regulation, Companies During Armed Conflict, 2008, and the
monitoring and oversight of the activities of pri- International Code of Conduct for Private Security
vate military and security companies Service Providers, 2010. (This is the position of Great
(2010 to 2017). Britain);
The UN Human Rights Council established an – the need for an international treaty has not
Intergovernmental Working Group to consider de- yet matured – we should better examine state prac-
veloping an international legal framework to regulate tice should first be reviewed and, on its basis, draft
the monitoring and control of PMSCs based on the a set of guidelines, distinguishing private security
draft text proposed by the Working Group.4 Thirty- companies from private military companies (The US
two states (including Russia) voted in favor of the es- proposes to adopt a “plan of action” based on expert
tablishment of the Working Group, 12 voted against reports containing recommendations to States to
(United Kingdom, United States, etc.), and three ab- regulate PMSCs).5
stained (Switzerland, etc.). – an international treaty on the matter is re-
One of the key issues of discussion was identi- quired, as national legislation is rather fragmented,
fying the reasons that had prevented the adoption as PMSC employees violate human rights and are
of the Draft Convention proposed by the Work- rarely held accountable.

4
Resolution adopted by the Human Rights Council. October 7, 2010, 15/26. URL: https://documents-dds-ny.un.org/doc/
UNDOC/GEN/G10/167/44/PDF/G1016744.pdf?OpenElement (accessed: 09.09.2020).
5
Fifth Session of the Open-Ended Intergovernmental Working Group on Private Military and Security Companies. U.S. Gov-
ernment Delegation Closing Statement. December 12-16, 2016. URL: https://www.ohchr.org/Documents/HRBodies/HRCoun-
cil/WGMilitary/Session5/US_closing_statement.pdf (accessed: 09.09.2020).

Московский журнал международного права • 4 • 2020

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 Alexandra Yu. Skuratova, Elena E. Korolkova INTERNATIONAL HUMANITARIAN LAW

The fact that the discussions were going in differ- PMSCs, status of their personnel under international
ent directions, as well as the existence of contradicto- humanitarian law, functions that the State may del-
ry positions, led to the ultimate “freeze” of the debate egate to PMSCs, responsibility for unlawful acts com-
on the adoption of an international treaty. mitted by employees of companies).
The session resulted in a synthesis of critical
2.4. The work of the new Open-ended points agreed on by the participants. During the
intergovernmental working group to elaborate the further stages of developing a legal framework, it is
content of an international regulatory framework, advisable to:
without prejudging the nature thereof, relating – take into account the distinction between
to the activities of private military and security mercenaries and PMSC employees;
companies from 2017 to present. – draw on the studies of Special Rapporteurs
In 2017, the UN Human Rights Council estab- and Working Groups;
lished a new Intergovernmental Working Group for – take into account the national legislation of
three years to develop international legal mecha- States applicable to PMSCs;
nisms to regulate the activities of PMSCs. – determine the status of PMSC staff under
The first and so far only session was held in 2019. international humanitarian law;
State delegations expressed different positions on – develop a list of functions that States cannot
possible regulatory mechanisms. Brazil, India, and delegate;
Venezuela believed that the Montreux Document – to consider regulating the activity of PMSCs
only reflects a fragment of existing international law in “complex situations” involving participation in cy-
that may cover the activities of PMSCs, yet this is not ber operations, control of unmanned aerial vehicles
enough, as significant legal lacunae remain. Some and autonomous weapons systems [Skuratova, Ko-
delegations actively supported existing soft-law in- rolkova 2019: 22-30];
struments. In particular, the European Union, Great – take stock of previous negative lessons
Britain, and Switzerland posit that the Montreux learned with the use of PMSCs to destabilize consti-
Document and the International Code of Conduct tutional regimes to prevent such practices;
ensure the protection of human rights and are suf- – consider the development of differentiated
ficient to govern the PMSCs. regulatory mechanisms applicable in armed conflict
Cuba, Ecuador, and South Africa unequivocally and peacetime;
advocated for the adoption of an international treaty. – not to differentiate between private military
The delegation of Egypt noted the need to consider the and private security companies by type of service, as
differences in the national legislation of States concern- such companies offer a wide range of services;
ing the establishment and operation of private military – to develop a mechanism for mutual legal as-
companies during the drafting process. Pakistan, while sistance in criminal matters.
speaking in favour of the initiative to conclude an in- During the discussion, a rather contentious view
ternational treaty, proposed to harmonize the positions was expressed that PMSCs could not be considered
of States on mutual legal assistance, international state Parties to armed conflict because they were merely
responsibility, and the accountability of PMSCs person- service providers. Accordingly, they are not subject
nel in the military chain of command. Most of those in to international humanitarian law. This position did
favour of adopting the treaty were those states where the not gain strong support [Sassòli, 2019:542-553].
PMSCs were active. Thus, the representatives of Iran and
Iraq considered it necessary to draw lessons from past 3. Status of personnel of private military and
large scale violations of human rights and international security companies under international
humanitarian law in Iraq, Afghanistan and other States humanitarian law
where PMSC personnel killed innocent civilians in cold
blood, subjected them to torture and ill-treatment. 3.1. Mercenaries
The delegation of the Russian Federation an- Additional Protocol I of 1977 to the Geneva Con-
nounced their intention to be an active member of the ventions of 1949 (AP I) and the International Con-
Working Group, drawing attention to the need to dis- vention against the Recruitment, Use, Financing and
cuss a number of contentious issues (the legitimacy of Training of Mercenaries of 19896 set out cumulative

6 International Convention Against the Recruitment, Use, Financing and Training of Mercenaries, adopted by UNGA Res.
44/34 on 4 December 1989.

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МЕЖДУНАРОДНОЕ ГУМАНИТАРНОЕ ПРАВО А.Ю. Скуратова, Е.Е. Королькова

criteria that can qualify a person as a mercenary. The 3.2. Status of PMSC personnel in armed conflict
absence of any criterion will automatically mean that of an international character.
a person cannot be a mercenary. For example, the International humanitarian law grants certain
criterion of private gain or material compensation is participants in armed conflict the right to directly
not always limited to material remuneration, because participate in hostilities.
many PMSC employees are involved in an armed 1. Members of the armed forces shall have the
conflict, wishing to apply professional skills, and “get right to take part directly in hostilities, according to
an adrenaline dose.”7 The lack of citizenship or per- Art. 1, para. 4A of the 1949 III Geneva Convention,
manent residence in the territory of the State where Members of armed forces are persons belonging to
the armed conflict is taking place does not prevent the armed forces of a party to the conflict.8 If the State
the employment of PMSC personnel. Companies has not provided a notification that paramilitary and
employ locals to perform specific services [Gómez police groups are incorporated into the armed forces,
del Prado 2017:59-62]. Members of PMSCs are not they will not qualify as combatants. This requirement
included in the State's armed forces and therefore may apply to PMSC personnel involved in armed
qualify as mercenaries under this criterion. conflict.
Consider the application of this article to specific 2. International law recognizes the persons
PMSC staff members from Peru employed by the who, “on the approach of the enemy spontaneously
United States in the armed conflicts in Iraq and Af- take up arms to resist the invading forces, without
ghanistan: having had time to form themselves into regular
– contracts concluded with Peruvians pro- armed units, provided they carry arms openly and
vided for the conduct of training for subsequent respect the laws and customs of war” as combatants.9
participation in hostilities and the payment for such However, this case does not apply to PMSC staff
participation (partly subject to the requirements of members, as their participation in armed conflict is
paras. a and c of Art. 47 API, and para. A of Art. 1(1) preconditioned on the existence of a contract.
of the 1989 International Convention); 3. Members of the resistance movements also
– Peruvian recruits were neither nationals, enjoy combatant status. The International Commit-
nor residents of the parties to armed conflicts (re- tee of the Red Cross (ICRC) interprets belonging to
quirement of p. “d” art. 47 AP I, p. “c” c. art. 1, para. 1 a Party to conflict as the existence of a de-facto re-
of the 1989 International Convention); lationship between the participants in the resistance
– were not military personnel of the United movement and a Party to the conflict. There must be
States or any other party to the conflict (require- a substantial nexus between the two. The require-
ments of paragraphs “e” and “f ” art. 47 AP I, para. “d” ments are set out in Art. 1 of the 1907 Convention on
c. 1, art. 1 of the 1989 International Convention); the Laws and Customs of War on Land:
– not officially sent by the State (Peru) for the - to be commanded by a person responsible
performance of tasks in situations of armed conflicts for his subordinates;
(para. “f ” AP I, para. “e” para. 1, art. 1 of the 1989 - to have a fixed distinctive emblem recogniz-
International Convention). able at a distance;
In this case, there is no basis for the qualifica- - to carry arms openly; and
tion of PMSC personnel as mercenaries under Art. - to conduct their operations in accordance
47 AP I and art. 1 International Convention of 1989, with the laws and customs of war.10
because not all the criteria set out in the documents Some PMSC personnel may be considered com-
have been met. batants if they comply with the above criteria.

7
Gómez del Prado J.L. Impact оn Human Rights оf a Nеw Nоn-State Actоr: Private Military and Security Companies. URL:
http://www.privatesecurityregulation.net/files/Impact%20in%20Human%20Rights%20of%20Private%20Military%20
and%20Security%20Companies%27%20Activities.pdf (accessed: 09.09.2020).
8
Third Geneva Convention III, relative to the treatment of prisoners of war 1949.
9
Art. 10 Brussels Declaration 1874 г., Art. 2 Hague Convention 1907 г., Art. 4(A)(6) Third Geneva Convention, relative to the
treatment of prisoners of war 1949.
10
Hague Convention, respecting the Laws and Customs of War on Land 1907.

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 Alexandra Yu. Skuratova, Elena E. Korolkova INTERNATIONAL HUMANITARIAN LAW

Art. 4A(4) of the Third Geneva Convention 1949 participation of PMSCs on the side of government
established that the persons who have received au- forces may be subject to a contract signed with the
thorization from a party to the conflict “to accom- Government of the State. Foreign PMSCs may par-
pany the armed forces without actually being mem- ticipate in such armed conflicts only with the consent
bers thereof ” are entitled to the status of a prisoner of the receiving State.
of war”.11 This is confirmed by a special permit issued Nevertheless, PMSCs do get employed by non-
by the government. In the United States, according state armed groups in situations of armed conflict
to the Instruction of the Department of Defense “On of a non-international character [Daza 2017:31-57].
Contractor Personnel Authorized to Accompany the The participation of foreign PMSCs on the side of
US Armed Forces“12 PMSCs personnel are civilians, organized armed groups sent by a foreign State in a
accompanying the armed forces, who, however, often non-international armed conflict may be regarded as
take direct part in hostilities, abusing their rights. an intervention in the domestic affairs of the State.
Questionable is the practice of some States con- An example of this is the United States and British
cerning the recruitment of PMSC personnel to guard PMSCs, who were involved in armed conflicts in
military installations [Crawford, Pert 2015: 226- Libya in 2001 and Syria in 2011.
231]. If PMSC personnel act as civilians, the defend- The purpose of international humanitarian law is,
ing Party is responsible for protecting military objec- first and foremost, to protect civilians through com-
tives and facilitating military operations. Defending pliance by Parties to an armed conflict with the duty
a PMSC military facility would be considered an act to distinguish between combatants and civilians.
of violence against the enemy. 1. The status of government armed forces is
In summary, the status of PMSC personnel in defined in AP I, which also applies to non-interna-
situations of international armed conflict must tional armed conflict. A person's membership in the
be determined on a case-by-case basis [Cockayne armed forces is determined by national legislation.
2014: 737]. PMSCs personnel cannot be unequivo- 2. In order to determine whether an individual
cally qualified as mercenaries because their activi- belongs to an organized armed group, one must de-
ties only partially meet the criteria set out in Art. termine whether he or she has a permanent function
47 of AP I to the Geneva Conventions of 1949 and within the group. Members of an organized armed
international treaties dealing with mercenarism. In group cease to be considered civilians for as long as
some cases, PMSC personnel may enjoy the rights they remain members of the group as long as they
and obligations of combatants, including the status have an active combat function. At the same time,
of prisoners of war. According to prof. Kotlyarov I.I., if a person only sporadically provides acts for an or-
PMSCs may be incorporated into the armed forces, ganized armed group, he or she cannot be considered
despite the private nature of their activities, under a to be a member of one, since it is necessary to have
license issued under national legislation that makes a long-term connection with the group [Rusinova
this possible [Kotlyarov 2013:176]. Where PMSCs 2012:61-69].
act as consultants and provide security advice or According to the commentary to AP II, direct
logistical support, they are civilians [De Nevers participation in hostilities is “military actions which,
2017:281-302]. by nature or purpose, are likely to cause actual harm
to the personnel and damage equipment of the en-
3.3. Status of PMSC personnel in a non-interna- emy's armed forces.”13 The term “direct participation
tional armed conflict. in hostilities” is not disclosed in any international
In most cases, PMSC personnel are involved in legal document. However, a precise understanding
non-international armed conflicts where there are of what constitutes direct participation in hostilities
hostilities between organized (non-governmental) is essential in determining the status of a party to a
armed groups and the armed forces of a State. The non-international armed conflict.

11
Third Geneva Convention III, relative to the treatment of prisoners of war 1949.
12
Instruction of the Department of Defense on Contractor Personnel Authorized to Accompany the US Armed Forces, №
3020.41 from 03.10.2005.
13
Commentary to Additional Protocol II, of 8 June 1977, to the Geneva Conventions of 12 August 1949, relative to the protec-
tion of victims of non-international armed conflicts: Translated from English K. Piytu et. al. – 2 Edition., Moscow, International
Committee of Red Cross, 2000, p. 303.

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In light of this gap, the ICRC's attempt to inter- lish the functions that they perform in the course
pret the term is welcome.14 The ICRC experts pro- of their participation in armed conflict since not all
pose that several constituent elements should be functions are related to military action. For example,
taken into account to define an action as direct par- most of these companies provide logistical services.
ticipation in hostilities: Thus, if such PMSC personnel support an organized
– the action must, as a probable result, ad- armed group in this manner, they will not receive
versely affect the military operations or military POW status in case of enemy capture.
capabilities of a party to the conflict or cause death, For a long time, States had contracted private
injury, or destruction to the persons or objects pro- companies whose employees were to directly take
tected from an imminent attack (threshold of harm); part in hostilities. Thus, when the governments of
– there must be a direct causal link between individual African states employed PMSCs to re-
the acts and the harm that may result from the act spond to the insurgency, they helped to quell resist-
or the coordinated military operation (direct causa- ance and keep the political regimes in force. These
tion); Governments excused this practice due to the lack of
– the action must be specifically designed adequately trained armed forces and comparatively
to achieve the threshold of harm and must be per- lower costs, as opposed to maintaining the army.
formed in support of one party to the conflict and to Ultimately, the right of PMSCs personnel to di-
the detriment of the other (belligerent nexus). rectly participate in the hostilities will depend on the
The commentary to AP II provides that direct existence of guarantees as well the State's ability to
participation in hostilities is an act of war, which, by ensure that these functions are carried out without
its nature and purpose, may have the probable result compromising security. However, based on numer-
of actual damage to the personnel and equipment of ous studies by domestic and foreign scholars on the
the enemy forces. The International Tribunal for the involvement of PMSCs in armed conflicts, the ban
Former Yugoslavia in the criminal case “Prosecutor on their participation in hostilities seems justified.
v. Strugar” reached similar conclusions15. In conclusion, international humanitarian law
Based on this, the activities of PMSCs in the affords different protection to civilians and combat-
training of military personnel and the development ants; at the same time, it is becoming increasingly
of general plans of military operations (for example, difficult to draw a line between the two categories in
such American companies: “Cubic Application In- modern armed conflicts.16 This is primarily due to
ternational”, “Kellog, Brown and Root”, “MPRI” in the nature of armed conflicts, the emergence of vari-
Georgia during the Georgian-Ossetian conflict in ous non-State actors taking part in hostilities, and
2008) and intelligence gathering, which are not di- the use of new combat operations technologies.
rected at a specific military operation, do not consti- The rules of IHL have changed since the First
tute direct participation in hostilities. World War, with the adoption of the 1929 Geneva
On the other hand, the supply of arms for a spe- Conventions, their revision after the Second World
cific military operation does constitute direct par- War in 1949, and then in 1977, during the struggle
ticipation in hostilities (e.g., employees of “Sandline against colonialism [Sassòli 2019: 542-553]. Howev-
International” in 1998 supplied arms to participants er, the emergence of new, previously unknown meth-
of armed conflicts in the territory of the former Yu- ods of warfare requires the international community
goslavia, in Iraq, Bahrain, Qatar, and Sierra Leone) to review the existing IHL. Based on the above, we
[Mathieu, Rearden 2007: 744-755]. can assume that PMSC personnel would not enjoy
In addressing the status of PMSCs personnel in the status of either combatants or civilians, but would
non-international armed conflict, one must estab- be treated as sui generis actors.

14
Interpretive guidance on the notion of direct participation in hostilities undеr international humanitarian law: International
Committee of the Red Cross. Geneva, 2009.
15
Prosecutor v. Pavle Strugar, IT-01-42-AR72 (Decision on Interlocutory Appeal). November 22, 2002.
16
Durham H. Strengthening Compliance with IHL : Disappointment and Hope ICRC, Humanitarian Law & Policy Blog, 2018.
URL: https://blogs.icrc.org/law-and-policy/2018/12/14/strengthening-compliance-with-ihl-disappointment-and-hope/ (ac-
cessed: 09.09.2020).

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4. National legislation concerning PMSCs stitutional rights under the Fifth and Sixth Amend-
ments to the United States Constitution, as they are
On September 2007, members of the PMSC called considered civilians under United States law.
“Blackwater” carried out an armed attack on civil- The prosecution of PMSCs personnel for the
ians, including women and children, at the Nisour crimes committed is further complicated by bilateral
Square in Baghdad. The FBI investigated the killing agreements granting them immunity from prosecu-
and injuring of civilians. The Iraqi authorities failed tion by the competent authorities. The existence of
to prosecute PMSC personnel because they were such agreements should not absolve sending States of
entitled to immunity from criminal prosecution, as responsibility for holding the perpetrators account-
granted under the Order of the Iraqi Coalition Pro- able and ensuring justice.
visional Authority No. 17 (2004). The PMSC's pres- The US Alien Tort Statute (“ATS”) grants foreign
ence in Iraq was against the law, as the military and nationals who have been injured by PMSCs' or their
security services license issued by the Ministry of the employees' actions the right to file a civil suit for dam-
Interior expired on 1 February 2006. ages.19 In 2004, citizens of Iraq who were tortured by
In the United States, criminal prosecution of PM- employees of “Titan” and “CACI” filed a civil action
SCs personnel is governed by the Military Extrater- for the violation of the norms of international law.20
ritorial Jurisdiction Act (MEJA) and the Uniform In 2004, a civil action was filed. The United States
Code of Military Justice (UCMJ). District Court denied the claims, arguing that the
Under MEJA, federal courts exercise jurisdiction ATS did not apply to private actors [Bakker, Sossai
over crimes committed outside the United States 2012: 664].
by persons employed or accompanying the armed In the case of “Abtan v. Blackwater”, the trial fol-
forces, or by US military personnel. MEJA covers ci- lowed from a class action brought by the Iraqi citi-
vilians contracted by the United States Department zens injured by the shelling perpetrated by the em-
of Defense or other federal agencies that employed ployees of the PMSC “Blackwater” in Baghdad. The
them in support of a DOD mission.17 Four employ- representatives of “Blackwater” during the trial cited
ees of “Blackwater” were prosecuted and convicted of their status as non-state actors and argued that they
various crimes committed in violation of MEJA. In could not be responsible for violation of norms of in-
the course of the trial, the defense pleaded that MEJA ternational law. In 2009, the court decided in favour
did not apply to Blackwater employees. In support of “Blackwater,” rejecting the claims of the prosecu-
of the claim, the defence argued that the US Federal tion.21
Court had no jurisdiction, as MEJA applied only to Some states have enacted laws to regulate such
crimes committed by PMSC employees hired under companies. Private companies are prohibited in
contract with the United States Department of De- most States, so de jure private military companies do
fense or pursuant to the mission of the Department not exist (e.g., Russia, China, Germany, Egypt, etc.).
of Defense, and not with any other agency (in the South Africa has enacted a special Private Security
case in question, the contract was concluded by the Act of 2001 and a Code of Conduct for Security Ser-
Department of State). vice Providers of 2003. Employees of such compa-
As for UCMJ, it had previously only been applied nies may only provide security services.22 A similar
to members of armed forces, while the prosecution approach is reflected in Swiss legislation governing
of civilians was beyond its scope. With the amend- private security activities abroad. The law prohibits
ments, UCMJ's jurisdiction extended to PMSC em- private company employees from taking a direct part
ployees.18 However, the prevailing fraction of the in hostilities.
foreign legal scholarship posits that the application The legislation of some States does not explicitly
of the UCMJ to PMSC employees violates their con- prohibit the activities of PMSCs involved in armed

17
18 U.S. Code Chapter 212 – Military Extraterritorial Jurisdiction Act, § 3261-3267.
18
10 U.S. Code Chapter 47 – Uniform Code Of Military Justice, § 802, (a) (10).
19
28 U.S. Code § 1350 – Alien’s action for tort.
20
Saleh v. Titan Corp., 436 F. Supp. 2d 55 (D.D.C. 2006).
21
Estate of Abtan v. Blackwater Lodge Training Center, 611 F. Supp. 2d 1 (D.D.C. 2009).
22
The Regulatory Framework of PMSCs in South Africa. Working Group On The Use Of Mercenaries As A Means Of Violating
Human Rights And Impeding The Exercise Of The Rights Of Peoples To Seld-Determination. URL: https://www.ohchr.org/EN/
Issues/Mercenaries/WGMercenaries/Pages/WGMercenariesIndex.aspx (accessed: 09.09.2020).

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conflict (Sudan). Some constitutions prohibit public the services of PMSCs, the establishment of a na-
functions, such as the administration of justice and tional registry, the obligation to train and vet the per-
the provision of national security to private compa- sonnel of PMSCs, as well as compliance with labour
nies (France, Algeria, Tunisia). laws, and the regulations governing the use of force
The constitutions of Russia and Yemen prohibit and firearms by PMSC personnel.
the establishment of non-State armed groups. In Obligations of States parties in the application of
Russia, the state security is a function of the national civil and/or administrative sanctions against offend-
armed forces. Specific task can be delegated to vari- ers and the provision of remedies to victims are set
ous groups, as well as special services. Article 208 out in Part IV. The draft convention proposes that
of the Russian Criminal Code prescribed criminal only performance of State functions by employees of
responsibility for creating, directing, financing and PMSCs, illegal use of force and firearms, illegal use
participating in an illegal armed group, which means of certain weapons, and illegal trafficking in weapons
that any other armed formations must specifically by PMSCs and their personnel may be qualified as
follow out of federal law, allowing their establish- crimes under domestic legislation.
ment. In the absence of specific regulation, the ac- In addition, any activity carried out by PMSCs
tivities of PMSC employees may be characterized as in the absence of a specific authorization shall be il-
mercenarism under Art. 359 of the Russian Criminal legal. States parties must ensure that perpetrators are
Code. brought to justice and provide effective remedies to
In summary, the existing national legislation is a victims. This part of the draft convention contains
diverse mosaic, and does not contribute to develop- provisions on the civil liability of legal and natural
ing general practice in the use of PMSCs. There are persons, the establishment of State jurisdiction, and
difficulties in prosecuting and collecting evidence in obligations relating to the prosecution and extradi-
criminal cases. Analysis of the legislation of individ- tion of nationals.
ual States revealed significant differences in the level Part V deals with establishing a committee on the
of regulation of PMSCs. This applies to the different Regulation, Oversight, and Monitoring of PMSCs.
approaches to the formulation of the applicable ter- The Committee is envisioned to receive reports from
minology, the range of services that such companies States parties on the legislative, judicial, administra-
are entitled to provide. tive and other measures they have adopted, in ac-
cordance with the procedures established in interna-
5. 2010 Draft Convention and its criticism tional human rights instruments, to implement the
provisions of the Convention. At the same time, the
In 2010, the Chair of the Working Group at the draft convention provided for an inquiry procedure
65th session of the UN General Assembly presented and an individual complaints procedure.
a draft convention to regulate the activities of PM- The draft proposed that the Secretary-General
SCs. The need to adopt a legally binding instrument create an international registry of PMSCs active in
was driven by the desire to establish minimal inter- the global market, which would be based on the in-
national standards applicable to PMSCs. formation submitted by member states.
Article 2 of the Convention defines various terms UN Member states never adopted the Draft Con-
used throughout the text. In particular, the following vention, with some delegations criticizing the text. In
definition is proposed for PMSCs: “a corporate en- particular, based on the text, it is not possible to es-
tity which provides on a compensatory basis military tablish the status of PMSCs personnel in accordance
and/or security services, including investigation ser- with the rules of IHL. One delegation criticized the
vices, by physical persons and/or legal entities.” The conditions for the application of the Convention (sit-
text goes on to list the permitted services. uation of armed conflict), noting the narrow focus
A number of foreign scholars have criticized these of the draft convention, which did not take into ac-
provisions of the draft Convention, pointing out that count other complex situations where private armed
the definition of PMSCs is open to broad interpreta- forces were involved (for example, the destabilization
tion and can be applied to any contractor [Seiberth of the constitutional regime, emergency operations,
2014: 296], while the list leaves open the question as etc.). In our view, the Convention should not apply
to what functions are permissible for PMSCs. to all situations involving the activities of PMSCs, as
Part II of the Draft Convention sets out general this can be regulated at the level of national legisla-
regulatory principles. Part III deals with the national tion, which, in any event, is already the case across a
regulation and monitoring, the obligation to license number of States.

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 Alexandra Yu. Skuratova, Elena E. Korolkova INTERNATIONAL HUMANITARIAN LAW

Furthermore, the draft convention refers the Vic- Russian Federation has not signed this instrument
tims' Compensation Fund, but does not specify its due to the Russian experts' opinion that the Mon-
status, funding or working mechanism, which makes treux Document was developed to serve the interests
the rule virtually inapplicable and requires further of a certain group of States, who rely on the services
detail. of PMSCs. Therefore, according to them, the docu-
Note should be taken on the approach taken by ment does not take into account the interests of other
the drafters of the Convention in formulating the countries. In addition, Russian legislation does not
obligation of States to take all necessary legislative provide for the activities of such companies.
measures, licensing regimes, contracting and train- The document consists of two parts. The first one
ing requirements, oversight and monitoring require- draws a difference between the legal status of States
ments. The existence of such a duty could spark con- according to the obligations under international law:
flicts between different national legal regimes with such contracting States, territorial States and third
regard to compliance with licensing requirements. States. The second part of the document references
Furthermore, the establishment of such regulatory good practices developed for implementing the obli-
mechanisms would entail significant financial costs gations set out in the first part: the procedure for the
for States, which would act as a deterrent to ratifica- selection of PMSCs and the conclusion of contracts,
tion. the procedure for the authorization of military and
With regard to the problem of the use of the term security services, and the monitoring of compliance.
“inherently governmental functions”, there is no Good practices summarise the current practice of
agreed definition in international law of what these those states who have resorted to PMSCs. The pref-
functions are. ace to the Montreux Document states that it is legally
An examination of the use of PMSCs revealed binding and “should not be construed as endorsing
abuses due to the lack of control over their activi- the use of PMSCs in any particular circumstance“24.
ties during armed conflict. In this connection, it is The Montreux Document identified general rec-
logical that the experts of the United Nations Work- ommendations addressed to States, including:
ing Group should take the initiative to give military – not to contract PMSCs to carry out activi-
commanders the power to monitor the PMSCs staff, ties that international humanitarian law explicitly
since it is the commanders who bear the obligation assigns to a State agent or authority (para. 2, section
to comply with the rules of international humanitar- “A” c. 1) (performing inherently governmental func-
ian law. tions);
– take appropriate measures to prevent, any
6. Alternative legal frameworks violations of international humanitarian law by per-
sonnel of PMSCs; (para. “c” para. 3, section “A”, para.
To regulate the activities of PMSCs in armed con- 1);
flicts, the Government of Switzerland and ICRC held – to investigate and, ensure effective judicial
international consultations, which resulted in the proceedings (para. 6, section “A”, para. 1);
adoption of the Montreux Document in 2008 and the – to ensure respect for international humani-
International Code of Conduct for Private Security tarian law by disseminating information about it
Service Providers in 2010 (further – “International (subparas. “a”, “b”, para 3 section “A”, para. 1).
Code of Conduct”). As of September 2020, 7 States The contracting State (a term used by the Mon-
acceded to the International Code of Conduct: Aus- treux Document) bears the majority of the obliga-
tralia, Canada, Norway, Sweden, Switzerland, United tions, such as the duties not to contract PMSCs to
Kingdom and the United States of America, 97 PM- carry out inherently governmental activities; con-
SCs, and 38 non-governmental organizations.23 tracting with PMSCs to perform exclusively State
At the time of signature, only 17 States acceded functions; to select and contract PMSCs, whose per-
to the Montreux Document, but the number now sonnel have had proper training; to take measures to
stands at 56. In addition to States, the EU, OSCE, and comply with international humanitarian law; to pre-
NATO have joined the Montreux Document. The vent and investigate violations committed by PMSCs

International Code of Conduct Association. URL: https://www.icoca.ch (accessed: 09.09.2020).

23

The Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations
24

of Private Military and Security Companies During Armed Conflict. International committee of the Rеd Crоss. Geneva, 2008.

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МЕЖДУНАРОДНОЕ ГУМАНИТАРНОЕ ПРАВО А.Ю. Скуратова, Е.Е. Королькова

and their personnel; enact any legislation necessary tainees, and interrogating suspected criminals. The
to provide effective penal sanctions; to provide repa- International Code does not contain provisions on
rations for violations of international humanitarian the status of staff under international humanitarian
law and human rights law caused by the wrongful law, nor does it take into account the specific envi-
conduct of the personnel of PMSCs when such con- ronment in which PMSCs operate - the existence of
duct is attributable to the State. armed conflict.
The Montreux Document, in accordance with An important aspect is the award of compensa-
customary international law, addresses the issue of tion to victims of the activities of PMSCs. However,
attribution of unlawful conduct of PMSCs to the neither the Montreux Document nor the Interna-
Contracting State. Thus, the sending State is interna- tional Code contains specific provisions to that ef-
tionally responsible for such conduct in cases where fect, leaving it to companies themselves to investigate
PMSCs: violations of citizens' rights and to award compensa-
– incorporated by the State into their regular tion. The issue of compensation for victims of PM-
armed forces in accordance with its domestic legisla- SCs is acute and is further compromised by deferring
tion; (subpara. “a” para. 7, section “A”, part I); this to a self-regulatory mechanism. Deficiencies in
– members of organized armed forces, groups the Montreux Document and the International Code
or units under a command responsible to the State; also include gaps in the regulation of the collection
(subpara. “b” para. 7, section “A”, part I); and exchange of evidence in criminal and civil cases
– empowered to exercise elements of govern- between States, extradition, and lack of enforcement
mental authority if they are acting in that capacity and accountability mechanisms [Cockayne 2014:
(subpara. “c” para. 7, section “A”, part I); 735-769].
– are in fact acting on the instructions of the Despite significant shortfalls, State practice indi-
State or under its direction or control (subpara. “d” cates that States apply the Montreux Document and
para. 7, section “A”, part I). the International Code to work with PMSCs. The
The rights and obligations of PMSCs and their United States Government strongly encourages com-
employees are listed in a separate section. The sta- panies to apply for membership in the International
tus of each employee is determined on a case by case Code Association as evidence of integrity and quality
basis, taking into account the functions entrusted to of service delivery.
him.
The Montreux Document does not provide a list 7. Conclusions
of services that PMSC personnel are entitled to carry
out in situations of armed conflict. This approach Various UN experts have studied the activities of
is predicated on States determining whether to in- PMSCs for over 30 years. This led to an intermediate
clude PMSCs in the armed forces or regulate their outcome, the drafting of an international convention,
activities otherwise. Given the divergent positions which was never adopted by the UN Member States.
and contradictory State practice, the list of military/ 1. Negotiations to develop and adopt an in-
security services was left open during the drafting of ternational treaty regulating the activities of PMSCs
the Montreux Document. The preface merely pro- have been suspended. The UN Intergovernmental
vides examples of the services that companies could Working Group is once again studying the possibil-
provide to States. As such, The Montreux Document ity of elaborating an international legal regulation
does not explicitly prohibit the direct participation of without predetermining the nature of the outcome
PMSC personnel in hostilities. document.
Unlike the Montreux Document, the Interna- 2. Delegations have put forward three different
tional Code of Conduct only recognizes security ser- positions on possible legal frameworks:
vices, which it construes as “guarding and protection – The Montreux Document on Pertinent In-
of persons and objects, such as convoys, facilities, ternational Legal Obligations and Good Practices for
designated sites, property or other places (whether States Related to Operations of Private Military and
armed or unarmed)”.25 The International Code does Security Companies During Armed Conflict, 2008,
not prohibit PMSCs employees from enforcing pre- and the International Code of Private Security Ser-
ventive measures such as detention, transporting de- vice Providers, 2010;

The International Code of Conduct for Private Security Service Providers. URL: https://icoca.ch/sites/all/themes/icoca/as-
25

sets/icoc_russian3.pdf (accessed: 09.09.2020).

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 Alexandra Yu. Skuratova, Elena E. Korolkova INTERNATIONAL HUMANITARIAN LAW

– Adoption of an international treaty is not yet matters, such as the legitimacy of the participation
required; State practice should first be studied and of PMSC personnel in armed conflicts and other
set out as guidelines; governmental functions, the status of PMSC person-
– An international treaty on the subject is nel under international humanitarian law, issues of
needed. National legislation is fragmented, PMSC international legal responsibility. In addition, there
personnel violate human rights and, with few excep- were differences in the use of such fundamental
tions, are legally responsible. terms as “inherently governmental functions,” “mili-
3. The employees of PMSCs do not fall under tary services”, etc.
the definition of a “mercenary” in the sense of Art. 47 6. The examination of the Montreux Docu-
Additional Protocol I to the Geneva Conventions of ment revealed that the first part did not contain any
1949, International Convention of 1989. innovations, but that the provisions set out were de-
4. The status of PMSC personnel under inter- rived mainly from existing sources of international
national humanitarian law is determined on a case- law. The Montreux Document refers to the Arti-
by-case basis. If members of PMSCs are incorpo- cles on Responsibility of States for Internationally
rated into the State's armed forces, or if they meet Wrongful Acts. The second part of the Montreux
the criteria laid down in Article 1 of the 1907 Con- Document refers to the national law of States. Ad-
vention, they may be considered combatants and are ditionally, the Montreux Document is non-binding
entitled to prisoner of war status. In all other cases, and does not establish a supervision mechanism, one
PMSC personnel are civilians, which means that they of its significant shortfalls.
cannot directly participate in hostilities. It is possible 7. Given the scale of the numerous human
to consider them as sui generis participants of armed rights violations committed by PMSC personnel,
conflict. the abuses committed by the companies themselves
5. Member States did not adopt the draft con- against workers sent into zones of armed conflict
vention proposed by the experts of the UN Work- without appropriate legal safeguards, an internation-
ing Group in 2010 because it was silent on crucial al treaty on the subject is necessary.

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About the Authors Информация об авторах

Alexandra Yu. Skuratova, Александра Юрьевна Скуратова,

Cand Sci. (Law), Associate Professor at the Department of к.ю.н., доцент кафедры международного права
International Law,
Moscow State Institute of International Relations (MGIMO- Московский государственный институт международных
University) MFA Russia отношений (Университет) МИД России

76, Prospect Vernadskogo, Moscow, Russian Federa- 119454, Российская Федерация, Москва, проспект Вер-
tion,119454 надского, д.76

[email protected] [email protected]
ORCID: 0000-0001-8513-8719 ORCID: 0000-0001-8513-8719

Elena E. Korolkova, Елена Евгеньевна Королькова,

Assistance to the Public Prosecutor, Cand Sci. (Law) к.ю.н., помощник прокурора района
Prosecutor's office of the Orenburg region Прокуратура Оренбургской области

51, Ul. Kobozeva, Orenburg, Russian Federation,460000 460000, Российская Федерация, Оренбург, ул. Кобозева,
д.51

[email protected] [email protected]
ORCID: 0000-0001-8932-5044 ORCID: 0000-0001-8932-5044

Московский журнал международного права • 4 • 2020

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