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Contenu archivé le 2024-05-28

The Criminal Regulatory Network for Private Security Companies: European and International Perspectives

Final Report Summary - EU CRIMINAL SECURITY (The Criminal Regulatory Network for Private Security Companies: European and International Perspectives)

The overall plan of the project consisted in understanding the criminal responsibility of private security companies (PSCs) globally in order to draw relevant conclusions on their regulatory framework, in particular with regard to the European Union (EU). We basically:

- mapped European and extra-European regulation concerning PSCs;
- analysed the criminal responsibility of PSC contractors and
- the consequent responsibility of corporations, states and international organisations;
- studied exceptions to the criminal liability of PSCs and their personnel and
- criminal procedures and sanctions for PSCs and their personnel; and
- assessed the criminal regulatory network for PSCs and their personnel and possible reform perspectives.

Mapping the existing regulatory framework at the domestic, European and international level led to the conclusion that PSCs exist since long, but, whereas they have traditionally operated worldwide in non-war contexts, albeit with significant differences from state to state, they have not dealt with military services. The recent breakthrough of private enterprises providing security services relating to the military radically changed the scenario and challenges the traditional regulatory regime. In particular, the EU currently lacks a specific regime for PSCs.

Since PSCs provide support, advice and security services in hostile environments, their personnel are likely to perpetrate especially the crime of mercenarism and war crimes. Though it cannot be absolutely excluded that PSC contractors meet all of the necessary requirements to qualify as mercenaries, our analysis shows that in practice this is the case only for a very limited number of them, so that PSCs operate in a 'grey legal zone' with respect to international humanitarian law (IHL). As to war crimes, PSC personnel can be considered liable regardless of their qualification as civilians, combatants or mercenaries, when a de facto link exists between their conduct and an armed conflict. This regime, traditionally applying only to international armed conflicts, is gradually extending also to non-international armed conflicts.

Within corporations, the research proves that responsibility exists at the international level for violation of the duty to prevent and punish, according to the doctrine of command responsibility, whilst domestic liability exists, in addition to this principle, under joint or vicarious liability. However, if, in some legal orders, such a responsibility translates into the corporate sphere, at the international level corporations may not be deemed liable for the responsibility of their personnel, whereas the effectiveness of self-regulatory means adopted by PSCs proves doubtful in this respect.

State responsibility may be established because of the control exerted by states over the activity of PSCs under the duty to prevent, punish and redress criminal acts of PSC personnel. When international organisations authorise PSCs' operations and exercise overall control over them, the conduct of PSC employees should be attributable to them. Otherwise, states and international organisations can be considered liable under the obligations to protect and fulfil human rights.

'Anomalous' criminal defences apply to PSCs and their personnel. Of particular relevance are the possibility that they enjoy the status of combatants in international armed conflicts and immunity from jurisdiction under international agreements such as SOFAS as well as domestic law and judicial doctrines. PSC personnel might qualify as 'military personnel' under Article 43(3) of Protocol I Additional to the Geneva Conventions, and thus 'combatants', at least when they wear uniforms or carry arms openly and act on behalf of a State by directly engaging in hostilities.

The effectiveness of procedures and sanctions is problematic by reason of substantive and procedural issues such as the qualification of the crime and limits to extraterritorial jurisdiction as regards individuals, plus the lack of enforcement mechanisms for states and international organisations.

Eventually, based on the exclusion of direct participation of PSCs in hostilities, criminal regulation for PSCs and their personnel should concern the definition of fundamental crimes, including mercenarism as well as grave breaches of fundamental rights. Criminal prohibitions should apply not only to individuals, but also to the companies they work for. Procedurally, states should apply their jurisdiction extraterritorially.

In light of the suitable accession of the EU to the foreseeable International Convention on Regulation, oversight and monitoring of private military and security companies, it is advisable that the EU harmonises the regulation of the member states according to these basic guidelines in order to make it internally coherent and externally consistent with the global regulatory framework.

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