States are currently discussing the future of one of the most important instruments for international peace and security and the room is almost empty. From 17 to 21 April 2023, the Open-Ended Intergovernmental Working Group on Private Military and Security Companies (IGWG) will hold its fourth session in Geneva before the renewal of its mandate in September 2023. The aim of the IGWG is to “elaborate the content of an international regulatory framework, without prejudging the nature thereof, relating to the activities of private military and security companies” (PMSCs). And yet, neither security nor Business and Human Rights (BHR) stakeholders are following the process that could profoundly influence the future of conflict dynamics and international security.

While many are familiar with the BHR “treaty process,” fewer people are aware about the “twin process” related to an international instrument for PMSCs. This is notably because PMSCs were originally perceived as corporate mercenaries or at least a contemporary version of mercenary activities, which are subject to separate international treaties. Due to their historical connection to the mercenary activities, PMSC were excluded from the mainstream BHR agenda. It can almost be said that PMSC-related initiatives form a “lex specialis” of BHR instruments.

PMSCs appeared originally during the decolonisation process across Africa, but the spotlight on PMSCs became more intense during the wars in Iraq and Afghanistan in the early 2000s, following several cases of grave human rights abuses that captured the media. PMSC are considered to be legitimate partners because they are legally registered commercial companies. It is important to stress that PMSCs never act on their own, but on the basis of a remunerated mandate. This contractual relationship with States allows them to claim a certain legitimacy especially with regard to international law, conceived as a stato-centric legal system, according to which the State has a monopoly on the use of force. In this sense they differ from mercenaries, who are either illegal, or at least, do not enjoy the same legitimacy as PMSCs (although they are regulated by international law).

PMSCs evolve rapidly, with an extraordinary capacity to quickly adapt to new situations, clients’ needs and challenges. It is, therefore, necessary that the future instrument adopt a pragmatic and realistic approach.

1. The existing regulatory framework on PMSCs is insufficient

In 2008 and 2010 at the initiative of Switzerland and the ICRC, two non-legally binding documents have been promulgated in an attempt to regulate PMSCs. The Montreux Document applies only in the context of armed conflict. In addition, the approach adopted by the Montreux document was to remind States of their obligations – not to regulate the industry. The International Code of Conduct (ICOC) is a multipartite initiative addressed directly to the companies and sets a range of standards relating to using force, detention, and basic human rights. However, it also has significant limitations such as its voluntary nature, the exclusion of military companies from its scope, and the lack of lacks a robust monitoring and sanctioning mechanism.

While voluntary initiatives such as the Montreux Document and the ICoC have been a positive development, with no monitoring mechanism, the industry continued to develop, to enlarge its sectors of activities and to diversify its clients. At the same time, their record of human rights abuses across various sectors and regions remains poor. One of the most important questions is the nature of the future instrument. PMSCs should not be self-regulated because of the very nature of the PMSC industry. Indeed, PMSCs offer technical services related to military and security activities, and often in dangerous and conflict-bound contexts, making them a rather particular commercial entity. We need an internationally binding instrument in order to prevent PMSCs from becoming even more powerful and rogue actors that place profit and power over human rights. If it will not be legally binding, it will lose its raison d’être.

2. PMSCs are a threat to international peace and security

The use of PMSCs and related actors has contributed to the intensification and prolongation of hostilities and therefore to the human suffering borne by civilian populations. In addition, State and non-State actors with a variety of private entities mobilise and harness cyber capabilities in the pursuit of proxy agendas or interests. The market for offensive cyber-capabilities is growing rapidly, and is subject to little regulation, offering yet again an opportunity to make a significant profit for private military and security companies that are developing cybersecurity divisions.

The draft instrument should thus reiterate the State monopoly on the use of force. In particular, the future instrument should specify operations that should be forbidden and other that should be specifically regulated. For instance, the future instrument should consider outlawing the direct participation in hostilities, and should prohibit contracting States from outsourcing activities that international law assigns to States, such as exercising the power of the responsible officer over prisoners of war or internment camps, or in peace time, the police powers of arrests, detention and interrogations. Furthermore, the instrument should ensure that States adopt a clear and precise domestic legal framework on the use of force and firearms.

3. States are no longer the main clients of PMSCs

Over the past few years, the Working Group on the use of Mercenaries identified variety of clients that may challenge the traditional State responsibility framework and doctrine. For instance, the extractive industry is one of the most important client bases for PMSCs, and its associated allegations of serious human rights abuses and violations. This relationship between two powerful multinational corporations leads to total lack of accountability for victims. Humanitarian action is a context where PMSC offer their services to humanitarian actors, peacekeeping missions or simply acting as a commercial humanitarian actor, with the sector growing rapidly and generating business and financial opportunities for PMSCs.

The instrument should adopt stronger measures on theprevention of contracting out  of use of force by PMSCs as well as prevention of human rights abuses. Furthermore, the future instrument should recognize PMSC obligations under IHL.

4. PMSCs operate also outside of armed conflicts

PMSCs operate in peace time. In addition to extractive industries, they can provide variety of services in immigration and border management ranging from i) provision of research and technical expertise; ii) border security technologies and monitoring services; iii) immigration detention, returns and removals; and iv) the implementation of “externalisation” policies. Migration is a huge growth area and profit centre for PMSCs working with vulnerable populations in a largely unregulated space.

Maritime security represents one of the key geostrategic developments where States and non-State actors increasingly rely on PMSCs to respond to piracy to protect vessels, commercial shipping, offshore platforms, ports and maritime infrastructure among others. However, it often comes with human rights abuses, including disproportionate use of force, or violations to the right to life in very isolated environments, leading to impunity.

5. PMSCs operate in opacity and complex arrangements

Security providers operate in complex and often opaque mixed security arrangements involving domestic and international PMSCs while those who hire them often deny involvement and seek to avoid legal responsibilities. For this reason, the instrument should make clear that it applies to domestic PMSCs operating in their home State, as well as abroad. Likewise, the instrument should contain strong provisions on transparency which would facilitate effective access to justice and remedy.

Dr. Jelena Aparac (Croatia) has over 15 years of professional experience in the field of international peace and security and human rights. She is a member of the editorial board of the Business and Human Rights Journal (as a Panel Member for Developments in the Field). She holds a PhD from the University of Paris Nanterre and an LLM from the Geneva Academy. Dr Aparac is the former Chair of the UN Working Group on the use of mercenaries (2020-2021).

Read more on this topic in the Business and Human Rights Journal in articles such as “Business, Human Rights and Security” and “Business and Armed Non-State Groups: Challenging the Landscape of Corporate (Un)accountability in Armed Conflicts.”