Regulating privatisation of “war”: the role of the EU in assuring the compliance with international humanitarian law and human rights
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Final Report Summary - PRIV-WAR (Regulating privatisation of “war”: the role of the EU in assuring the compliance with international humanitarian law and human rights)
Armed forces have always represented, and continue to represent, the core function of the State as guarantor of external defence and security for citizens. Yet over the past decade the outsourcing of military and security services to private military and security companies (PMSCs) has grown in size and importance as part of a larger contemporary phenomenon of privatization of services which in the past were typical governmental functions.
Much of the public attention to PMSCs is a result of numerous incidents which highlighted not only inadequate supervision on the conduct of their employees but also the risk of impunity for the serious crimes committed. In part as a consequence of these events, parallel initiatives have been launched aimed at introducing international standards to bring some uniformity to very uneven national regulation. In recent years, the PRIV-WAR consortium has been one of the main actors in the academic and institutional debate on the effective regulation of PMSCs: it provided rigorous research on both the main features of the phenomenon and the applicable legal framework at various levels, and it formulated concrete policy recommendations for future regulation at the EU level.
PRIV-WAR emphasised the role of international human rights law (HRL) and international humanitarian law (IHL) in the governance of the transnational military and security industry. The results of this first strand of the research are included in the book 'War by Contract' (2011), which examines the applicability de lege lata of principles and norms of HRL and IHL to States involved in the provision of private military and security services, to PMSCs and to their employees. Moreover, it addresses questions of state responsibility and of civil and criminal liability of private contractors, and examines issues of access to justice for victims of possible wrongful acts.
Against this background, one of the main questions addressed by PRIV-WAR has been whether the European Union (EU) could play an active role as regards the regulation of PMSCs, and in what ways the EU could contribute to ensuring compliance with HRL and IHL. The focus was on the interplay between international, European, and domestic regulatory measures. The assessment of the existing domestic legislation, with a view to identifying its implications for future international regulation, represents one of the most original aspects of the research conducted in the context of the PRIV-WAR. The reports covering most EU Member States and other key-countries outside the EU are now included in a volume to be published in early 2012. Not only does it serve to look beyond the United States as the main actor in military outsourcing, but it also provides a comparative assessment of the approach adopted in other relevant non-European legal orders.
The policy strand of the research addressed the question whether and how the EU should develop a unified position on the international regulation of PMSCs. Thanks also to a fruitful dialogue with the wider network of relevant stakeholders, that comprised European institutions, public administration at the national level, industry, NGOs and civil society, the seven participating universities released the PRIV-WAR Recommendations for EU Regulatory Action in the Field of Private Military and Security Companies and their Services. This document is composed of thirteen recommendations, which contain various proposals for the regulation of PMSCs and their services. The suggested options consider the adoption of both legally binding and non-legally binding instruments, covering on the one hand the harmonisation of national measures regulating private military and security services within the internal market, and on the other hand the regulation, in the context of the CFSP, of the export of such services to third countries.
Project Context and Objectives:
The outsourcing of military and security services is currently the object of intense legal debate at the international level. States employ PMSCs to perform functions previously exercised by regular armed forces in the context of armed conflict, contracting them to offer not only logistical support, but also various other services, including: armed guarding and protection of persons, objects, buildings or merchant vessels; maintenance and operation of weapons systems; prisoner detention and interrogation; intelligence; as well as advice to or training of local forces and security personnel. Other entities too, including international organisations, NGOs and business corporations, have resorted to PMSCs to provide security particularly in crisis situations where local institutions are unable to exercise their prerogatives.
The number of private contractors exceeded that of the regular armed forces in recent conflict scenarios. This is unlikely to be a temporary phenomenon. Two main reasons explain its rise: on the one hand, the changed character and the complexity of current military operations and, on the other, the limited resources available to the regular armed forces after the end of the Cold War, as part of a general trend towards the privatisation of public functions in Western countries. Other analysts make the point of the democratic control of the armed forces, by emphasising that the Governments use PMSCs to circumvent parliamentary control and constitutional constraints on the use of force.
In this context, PRIV-WAR has sought to promote a better understanding of the phenomenon of the 'privatization of war'. It is in the context of various workshops that the consortium engaged in a frank debate with experts and the relevant stakeholders regarding the tasks which PMSCs perform in the context of an armed conflict and the reasons for their extensive use by regular armed forces. A complex and diversified landscape emerged, that makes the issue of definition very delicate. For the purposes of the research carried out within the project, PMSCs were defined as business corporations offering security, defence and/or military services to States, international organizations, non-governmental organizations, private companies and/or armed groups. These services include but are not limited to armed guarding and protection of persons, objects, buildings or merchant vessels; maintenance and operation of weapons systems; prisoner detention and interrogation; intelligence; as well as advice to or training of local forces and security personnel.
In addition, PRIV-WAR has offered the first systematic analysis of the strategic challenges and the legal implications arising from the possible use of private contractors in the fight against piracy. The project has contributed to foster the parliamentarian debate in various countries on the need of additional regulation in this field.
Since PMSCs are also hired in situations of armed conflict, the PRIV-WAR project aimed to offer an analytical framework to discuss the status of PMSC employees in IHL. Under the law of international armed conflict, they can fall within the category of legitimate combatants once the hiring State establishes a certain qualified factual link between them and its regular armed forces; if not, they are civilians. In this connection, the analysis covered the question whether the category of 'civilians accompanying the armed forces', already present in the early codification of the laws of war, may be considered to cover the phenomenon of PMSCs. One of the main consequences thereof is that civilian contractors enjoy immunity from attack, unless they take direct part in hostilities. Thus, the ICRC's recently released Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL has been carefully analysed in order to verify the approach taken by the ICRC in relation to tasks entrusted to PMSCs. Episodes of violence and abuse committed by PMSCs have shocked public opinion to such an extent that several academic commentators initially claimed that they should be banned under the existing norms on mercenaries. Finally, PRIV-WAR has sought to fill the gap in legal literature regarding the activities performed by PMSCs in non-international armed conflicts. First, it covered the ius ad bellum issues arising from this scenario, particularly the right of the constituted government to use foreign armed forces, including services provided by PMSCs. As for their legal status under IHL, one of the problematic aspects was whether PMSCs qualify per se as opposition armed groups. In this regard, the neglected question of the international liability of armed opposition groups was examined, with special emphasis being placed on the due diligence obligations accruing both to the group and the State.
The topic of human rights protection was at the core of the PRIV-WAR project. The aim of this strand of the research was to provide a comprehensive overview of the regional and universal instruments applicable to the protection of human rights and examine how relative obligations and remedial processes may have an impact on the regulation of PMSCs and on their accountability in the event of human rights violations. The research focused on States' negative obligations to refrain from conduct that will result in human rights violations, and on positive obligations to ensure that PMSCs do not cause human rights violations. The positive obligations to prevent and punish human rights violations were assessed for the contracting State, the home State and the host State of PMSCs. Considering the importance of human rights within the project, it was decided to undertake some additional research from a thematic perspective, considering the potential impact of PMSCs on the rights of women, children's rights and on cultural rights. Research was also undertaken on the European Union's fundamental rights as applicable to PMSCs, their impact on EU external relations and their interaction with IHL, as well as on the question of immunities under international law and their applicability to PMSC personnel.
A further objective of the research was to address the issue of the international responsibility of States and the accountability of PMSCs as corporations. On the basis of the criteria indentified by the ILC Articles on State Responsibility, a crucial question is when the conduct of the PMSCs' employees is attributable to hiring State. In addition, PRIV-WAR discussed one of most delicate issues of the law of international responsibility for wrongful acts: namely, whether the actions of PMSCs deployed as part of a peace support operation should be attributed to the international organization or to its Member States.
In addition, PRIV-WAR intended to evaluate the state of self-regulation and corporate social responsibility initiatives within the PMSC industry. In this context, the consortium followed the adoption of the Montreux Document (2008) and the process of promoting it among States and participated in the consultations on the International Code of Conduct for Private Security Providers, which was adopted in 2010.
The involvement of civilian contractors in military operations made it necessary to address the issue of the criminal jurisdiction for the crimes committed on foreign soil. In principle, the employees of PMSCs are subject to the law and jurisdiction of the country in which they are deployed. However, recent practice showed that contracting States have relied on different legal sources, such as local laws or specific bilateral agreements, to grant immunity from the jurisdiction of the host State. The project also dealt with other important issues, including the criminal jurisdiction for private contractors hired by international organisations and the question of the criminal liability of legal persons, the expansion of the competence of military courts to civilian contractors. As part of the wider topic of PMSCs' accountability, PRIV-WAR considered the prospect of adjudication of civil claims arising from torts committed by private contractors.
More generally, a further objective of the research was the assessment of the existing regulation in EU Member States and in relevant third States. The survey of the domestic legal orders was aimed at identifying possible limits of outsourcing, the existence of licensing regimes, the practice regarding public procurement. The analysis has taken into account the position of the 'home' State, i.e. the State where PMSCs are incorporated, the territorial State, i.e. the State where PMSCs provide their services, and the hiring State.
A crucial objective of PRIV-WAR was to address the question of how possible regulatory action by the EU would complement the international initiatives and assess its potential impact at the national level for the Member States. The first step was taking stock of the existing regulatory context: while at the EU level there are as yet no specific norms with respect to the private military and security industry, nonetheless it is important to investigate existing regulations and case law which may have implications for PMSCs and their services. The second step involved an assessment of the legal bases and the normative instruments which are available to the EU institutions for further regulation, in the light of the constitutive Treaties after Lisbon and on account of the principle of conferred powers, set forth in Article 5 paragraph 2 of the Treaty on the European Union. Finally, it revealed to be crucial to show the different tools at the disposal of the EU in relation to external activity to ensure compliance with human rights and international humanitarian law by PMSCs.
In the fulfilment of this objective, the seven participating universities formulated a series of thirteen policy Recommendations for EU Regulatory Action in the Field of Private Military and Security Companies and their Services, which were presented during the final Conference of the project held in Brussels in April 2011. The Recommendations are based on the assumption that 'with the entry into force of the Lisbon Treaty, entailing the legal upgrade of the EU Charter of Fundamental Rights and the obligation upon the EU to accede to the European Convention of Human Rights and Fundamental Freedoms, EU institutions and EU Member States, when acting within the scope of EU law, have confirmed and consolidated their significant role as guarantors of fundamental rights, and their willingness to be bound by them'.
The drafting process of the Recommendations benefited from the added-value of the European approach which characterised the PRIV-WAR project: the results of the rigorous legal analysis by the seven academic partners were discussed in the context of a constructive dialogue with interested parties, including the European institutions,other international organizations, policy makers at the national level, NGOs and the private military and security industry itself. It was also thanks to this fruitful interaction that the PRIV-WAR consortium was able to take a forward-looking perspective.
The project was launched in January 2008. In the three and a half years of the project's duration, all its objectives have been achieved. With a view to disseminating the projects results and to promote a dialogue with interested parties, a public website has been created: www.priv-war.eu.
An important number of research papers and reports have been published on this website, as will be described below. A brochure was produced and disseminated widely among academic institutions, research institutes, international organizations, NGOs, and the PMSC industry both within the EU and in third countries, including the USA and the Russian Federation. Furthermore, based on the research carried out in the context of the project, an academic volume was published: War by Contract: Human Rights, Humanitarian Law and Private Contractors (F. Francioni and N. Ronzitti, eds, Oxford University Press, 2011). A second book Multilevel Regulation of Military and Security Contractors: the Interplay between International, European and Domestic Norms (edited by M. Sossai and C. Bakker), focusing on existing regulation of PMSCs at the international, European and national levels and on further regulatory options by the EU, will be published by Hart Publishing in early 2012.
The research under the different work packages as identified at the outset of the project has been completed and several additional papers have been produced. With regard to each of its stated objectives, the following results have been achieved.
A. Promoting a better understanding of the phenomenon of the privatization of war
The research activity carried out under work package 1 was specifically aimed at understanding the nature of the "privatization of war." The historical background of the phenomenon of PMSCs has been analyzed. The PRIV-WAR consortium also created a database of companies with a view to gathering information on the essential features of these corporate entities. Two workshops held in November 2008 in Rome and in May 2009 in Sheffield enabled a frank debate with experts on the tasks PMSCs perform in the context of an armed conflict and the reasons for their extensive use by regular armed forces. A report, produced by an expert on strategic studies, identifies the risks of delegating international security to private entrepreneurs and calls for a renewed sense of responsibility by State institutions.
PRIV-WAR recognised that there are numerous terms to refer to the corporate entity which enters into a contract with States, international organisations, other companies or NGOs to provide services in situations of armed conflict. On the basis of the approach of the UK Ministry of Defence (MoD), sometimes the broader notion of Contractor Support to Operations (CSO) is used. The CSO policy of the United Kingdom identifies three types of CSO: Contractors on Deployed Operations (CONDO: civilian personnel providing goods and services outside the United Kingdom within a joint operation area as part of the civilian component supporting UK armed forces); Sponsored Reserves (SR: individuals who serve, as members of the workforce of a company contracted to the MoD, in a military capacity); Private Military Security Companies (PMSC: full range of companies involved in the supply of security, defence and military services to members of the military and civilian component).
For the purpose of the analysis carried out within the project, PMSCs have been defined as corporations offering security, defence and/or military services to States, international organizations, non-governmental organizations, and private companies and/or armed groups. These services include armed guarding and protection of persons and objects or buildings, maintenance and operation of weapons systems, prisoner detention and interrogation, intelligence, risk assessment and military research analysis, as well as advice to or training of local forces and security personnel.
In particular, PRIV-WAR has investigated the role of PMSCs in peace support operations (PSO), and in the specific context of the fight against piracy. As for the latter, recent events showed that piracy off the coast of Somalia and more generally in the Indian Ocean is an issue of growing concern for international stability, and States have started using PMSCs to protect commercial ships. The author of a Chapter included in the volume War by Contract (N Ronzitti, 'The Use of Private Contractors in the Fight against Piracy: Policy Options', in Francioni and Ronzitti (eds), War by Contract (Oxford, OUP, 2011), 37) argues that legislative or soft-law instruments should be adopted at the international level in order to clarify, inter alia, issues of jurisdiction, accountability and the use of fire-arms, taking into account the specific context of the marine environment and ensuring that respect for human rights is part of the regulation.
As for Peace Support Operations (PSO), the more all-encompassing notion was chosen: it includes the operations that impartially make use of diplomatic, civil and military means, normally in pursuit of United Nations Charter purposes and principles, to restore or maintain peace. An article on the 'Externalisation of Peacekeeping' (ND White et al., 'The Externalisation of Peacekeeping: Policy, responsibility and Accountability' in (2011) 15 Journal of International Peacekeeping 281-315) addresses the post-Cold War trend towards the privatization of some of the security and military functions of post-conflict and conflict operations conducted by States is extending to peacekeeping operations undertaken by the UN and other organizations. It examines the policies behind the increased use of private military and security contractors (PMSCs) in peacekeeping, considers the obstacles to accountability and responsibility caused by this development, and suggests ways of overcoming these obstacles to provide remedies for victims of human rights abuse at the hands of such contractors.
Finally, PRIV-WAR dealt with the combination of two emerging topics in militarization and the conduct of war: cyber warfare and the use of private military and security companies and personnel. As technological capacity grows, populations and governments alike become more and more dependent on reliable internet connections and information placed only on the cyberspace. The fact that computers are so depended upon makes these sectors of human activity particularly vulnerable if their computers or networks were to be shut down. The topic of the privatization of cyber warfare seems to float in a "double legal vacuum", as there are no clear rules for either cyber warfare in general or for the privatization of military services. However, the point is made that rules can be drawn analogically from established rules and principles of international humanitarian law and human rights to fill both of these vacuums.
B. Clarifying the legal status of PMSC employees under IHL
Much work was devoted to the issue of the status of PMSCs' staff under IHL within the framework of work packages 2 and 3. The research showed that in principle, PMSCs' personnel could be considered as combatants in an international armed conflict, if two conditions are fulfilled: (i) the PMSC employee falls under a command responsible to a Party to the conflict for the conduct of its subordinates and (ii) an internal structure and a disciplinary system are in place within the PMSC. If PMSC employees are not legitimate combatants they are civilians. As civilians, they are not allowed to take direct part in hostilities, or they lose the benefit of immunity from attack.
Therefore the notion of 'direct participation in hostilities' is essential to whether contractors' personnel can be targeted. But it also offers a valuable tool for the debate on the equally fundamental question concerning the legitimacy of outsourcing activities which are inherently governmental. Since only legitimate combatants can directly participate in hostilities in the course of an international armed conflict, the notion defines a criterion to determine what functions private companies may perform and what degree of control the State should exercise (M Sossai, 'Status of Private Military and Security Company Personnel in the Law of International Armed Conflict', in War by Contract, 197).
The recent ICRC Interpretive Guidance (2009) offers a valuable analytical tool for the identification of the conducts amounting to a direct participation in hostilities: such acts should meet the three cumulative requirements of threshold of harm, direct causation and belligerent nexus. The analysis conducted on the tasks entrusted to employees of PMSCs permits to conclude that the concept of direct participation in hostilities encompasses activities like protecting military objectives from adversary attacks; providing tactical intelligence data (including through interrogation techniques); maintaining or operating weapon systems in the course of complex military operations; as well as training troops for the execution of a specific military operation. Finally, the controversial example of driving an ammunition truck should not be generally qualified as direct participation in hostilities: civilian drivers enjoy immunity from targeting but the truck remains a legitimate military objective. It follows that individuals working for a PMSC in the surroundings of a military objective could be at risk of injury incidental to the attack of that target, as so-called 'collateral damage' under the principle of proportionality as set out in Article 51(5)(b) of Protocol I.
The research team also examined whether PMSC employees can be considered as 'civilians who accompany the armed forces' under IHL, analysing the legal consequences connected with this classification in relation to both the conduct of hostilities and the position of these personnel once captured.
Another paper (L Vierucci, 'Private Military and Security Companies in Non-international Armed Conflicts: Ius ad Bellum and Ius in Bello Issues', in War by Contract, 235) examines the role of PMSCs in non-international armed conflicts, where there is no recognition of combatant privilege. It addresses ius ad bellum and ius in bello issues arising from the activities of private military and security companies (PMSCs) in non-international armed conflicts (NIAC). This legal analysis, which has so far been neglected by scholars, is crucial given that most conflicts where PMSCs are involved qualify at least in part as internal (e.g. Iraq, Afghanistan, Darfur (Sudan)). The ius ad bellum analysis hinges upon a distinction between the right of the legitimate government - and to some extent of national liberation movements- to make recourse to PMSCs to restore or maintain internal law and order or to repel an aggression, and the prohibition to use PMSC for combat purposes or other action on the part of armed opposition groups or third parties. At the same time, several arguments are presented to the effect that the right of the government to use foreign armed force, including services provided by private actors, is subject to a number of limitations. As to the ius in bello inquiry, where the question of the status of PMSCs, their scope of protection from attack, their treatment in case of deprivation of liberty and the responsibility of an armed opposition group under international humanitarian law are analysed, places special attention to the notion of armed forces applicable, according to international humanitarian law, in a NIAC. This investigation shows that in very few instances can PMSC members fall under the category of a State's armed forces. Indeed the vast majority of PMSC members qualify as civilians. As to the responsibility aspect of PMSC actions, only the question of the international liability of armed opposition groups is examined with special emphasis being placed on the due diligence obligations accruing both to the group and the State.
Researchers have also investigated under what circumstances PMSC employees are covered by the definition of mercenaries as set out in the relevant international conventions. The analysis concludes that only a very limited number of private contractors fall within the definitions of mercenary laid down in treaty law. These definitions, which do not form part of customary law, list numerous conditions that must be cumulatively met before a person can be labelled mercenary. Moreover, the research team had regular contacts with the UN Working Group on the Use of mercenaries. One of its members, Prof. Gomez Del Prado participated in the Rome workshop in November 2008 as well as in the PRIV-WAR Final Conference, and representatives of PRIV-WAR attended consultations held by the working group. The project consortium has also provided its comments to an initial version of the Draft of a Possible International Convention on Private Military and Security _Companies, which will be further discussed in the context of an Open-ended working Group of the UN Human Rights Council, which had its first meeting in May 2011.
C. Fostering knowledge on the impact of private military activities on the enjoyment of human rights
The topic of human rights protection is at the core of the PRIV-WAR project. This is clearly demonstrated in the book War by Contract and in several Working Papers published on the project website. These contributions provide a comprehensive overview of the regional and universal instruments applicable to the protection of human rights and examine how relative obligations and remedial processes may have an impact on the regulation of PMSCs and on their accountability in the event of human rights violations. The research focuses on States' negative obligations to refrain from conduct that will result in human rights violations, and on positive obligations to ensure that PMSCs do not cause human rights violations. The positive obligations to prevent and punish human rights violations were assessed for the contracting State, the home State and the host State of PMSCs.
In particular, the Scientific Coordinator, Prof. Francesco Francioni, produced a chapter on "the Responsibility of the PMSC's Home State for Human Rights Violations Arising from the Export of Private Military and Security Services". Departing from the contemporary trend favourable to the re-conceptualisation of human rights in terms of obligations of non state actors, this paper argues that an effective compliance with international human right standards by private military and security companies can be achieved by a complementary use of principles of state responsibility, in particular of responsibility of the home State of the company, and of the criteria (territory-jurisdiction) that determine the substantive scope of application of the human rights obligations with respect to the prevention and remediation of possible abuses by private contractors. On the basis of an analysis of relevant international law and practice, this paper attempts to offer a preliminary identification of the regulatory standards required to promote compliance with human rights by the emerging transnational military-security industry (F Francioni, 'The Role of the Home State in Ensuring Compliance with Human Rights by Private Military Contractors', in War by Contract, 97).
Considering the importance of human rights within the project, it was decided to undertake some additional research from a thematic perspective, considering the potential impact of PMSCs on the rights of women, cultural rights, and children's rights. The papers covering the first two topics analyse the provisions in both human rights law and under IHL; the existing jurisprudence and views from the monitoring bodies which could apply to PMSCS, as well as recent developments at, inter alia, the UN and the IRC, and they examine how the use of PMSCs could have a negative impact on women's rights on the one hand, and cultural rights on the other. In the report on cultural rights, also the lacunae in international law are exposed and challenges for the protection of cultural rights and cultural heritage specifically are outlined. The third report examines the normative framework for the protection of children's rights at the international and the European Union (EU) levels, assessing how the rights of children may be affected by PMSCs in a conflict or post-conflict situation; and what remedies exist for violations of these rights. It makes some proposals on how such violations may be prevented through specific regulatory measures regarding PMSCs and their services, including through regulation at the EU level.
Moreover, special attention has been devoted to the right to life from the perspective of PMSC contractors. A contribution discusses (the extent of) PMSC contractors' right to use force to protect their own, and possibly others' lives, both against legal and illegal attack (G Den Dekker and E Myjer, 'The Right to Life and Self-Defence of Private Military and Security Contractors in Armed Conflict' in War by Contract, 171).
Finally, a contribution by Ineta Ziemele, Judge at the European Court of Human Rights, sums up the state of international human rights law as concerns the issue of responsibility for human rights violations allegedly carried out by private persons and entities. It employs four main legal concepts: imputability of private actions to a State, positive obligations of States, duties of private persons and entities, and 'horizontal' effect of human rights. This paper considers how these concepts are applied in the case-law of international monitoring bodies and regional courts. The article also indicates pending questions which concern the responsibility of private persons and entities for human rights violations and suggests possible approaches that an international or regional judicial or legislative process could undertake to remedy the gaps, in particular in the narrower context of private military companies. One of the obvious conclusions that emerge from the study is that international actors have preferred the development of the scope of positive obligations that States ought to undertake within various human rights treaties. It is through these obligations that international human rights standards have come to circumscribe private actions. The scope of positive obligations for States typically involves the following measures: adoption of appropriate legislation, provision of judicial remedies and compensation where appropriate. It can be said that the existing legal framework contains most if not all the necessary elements to hold such legal entities as private military or security contractors accountable for human rights violations. The question lies more with the courage to use them to ensure respect for human rights.
D. Analysing the responsibility of States for internationally wrongful acts
States hire PMSCs in armed conflict and occupation to fulfil tasks formerly exclusively handled by soldiers, including combat, guarding and protection, and detention and interrogation. Relying on the International Law Commission's Articles on State Responsibility, an article published in the European Journal of International Law (2008) compares the responsibility of States for such conduct of their soldiers with that which States incur with respect to the conduct of contractors they hire. It reveals a regulatory gap which States seeking to reduce their exposure to international responsibility can exploit. Positive obligations of States under International Humanitarian Law narrow this gap to some degree. An analysis of the duty to prevent demonstrates that the potential of positive Human Rights Law obligations to bridge the gap - although important - remains limited by their due diligence nature, and problems of extraterritorial applicability. It is then argued that the conduct of certain contractors exercising coercive functions can be attributed to the hiring State as that of 'persons forming part of its armed forces' in the sense of the customary provision enshrined in Article 3 of Hague Convention IV of 1907 and Article 91 of Additional Protocol I. Where this is the case, the State will be responsible for their conduct as it would be for that of its soldiers, which fully eliminates the regulatory gap.
In addition, PRIV-WAR dealt with the issue of 'State Responsibility for Conduct of Private Military and Security Companies violating Jus ad Bellum'. The research on the ius ad bellum and on violations of the law of neutrality was divided into two parts. The first part focuses on the responsibility of States for acts of PMSC contrary to the ius ad bellum. It outlines the obligations of States to respect ius ad bellum and the law of neutrality and addresses the issue which States can be held responsible for those violations, given their relationship with PMSCs. In that perspective, the research team has taken account of the attribution mechanism of international law, as articulated in the ILC articles and in recent case law. The second section presents the obligations of States in relation to PMSCs, underlining the obligations incumbent on non-belligerent States of ensuring respect for ius ad bellum. States could be held responsible for behaviour such as complicity, support, and/or lack of prevention. They may also have a duty to legislate on PMSCs in order to prohibit violations of ius ad bellum.
Finally, a complex issue is that of the international legal responsibility arising from the discernible trend among international organisations, including regional organisations, to use the services of PMSCs. It has been argued in the literature that suitably controlled and regulated use of PMSCs by the UN, EU and other organizations would bring significant benefits, not only cost-savings but a removal of institutional dependence on voluntary and possibly poorly equipped contributions from Member States. While recognising the benefits to organizations that the greater use of PMSCs might bring, the chapter is concerned with issues of accountability when human rights abuse has been committed by PMSCs. While the wrongful actions of regular troops are attributable to governments, the most relevant test for private contractors is whether the government was in effective control of the conduct in question. The research carried out within the PRIV-WAR project considered whether this effective control test is the most appropriate one for private contractors working for organizations or for troops contributing nations (TCNs) involved in institutionally mandated peace operations.
E. Problems of accountability of the PMSCs and initiatives of self-regulations
This strand of the research moved from an analysis of the different initiatives of the international community to hold transnational corporations accountable, in order to assess the viability of such initiatives with regard to the PMSC industry.
PRIV-WAR examined the key initiatives by international, regional and economic groupings established to address the issue of Corporate Social Responsibility (CSR). At the international level, the focus is on the work of the UN, notably the work of the Special Representative to the Secretary-General for Business and Human Rights, the Global Compact, the UN Commission on Transnational Corporations and the Norms on the Responsibility of Transnational Corporations and Business Enterprises with Regard to Human Rights. The role of the European Union and the OECD in the development of CSR mechanisms was also considered. The conclusion is that some existing initiatives such as the Global Compact and the OECD Specific Instance process have much to contribute to the continuing debate surrounding how business ought to be accountable for violations of international law. Furthermore, there is no reason why PMSCs should be excluded from the ambit of these initiatives.
At the core of the research on these issues was the state of self-regulation initiatives in the Private Military and Security industry, with a focus on Codes of Conduct (CoCs), including best practices and ethics declarations initiated by firms. Different categories of private CoCs exist. Federative codes are created by associations of PMSCs at the international, regional and national levels. Individual codes are autonomously elaborated by single companies and are supposed to match the federative regulation. Private CoCs tend to refer to voluntary, national and international rules existing in the matter of licensing, contracts, services, resort to force, labour law, and liability. They also add complementary norms. Technically speaking, the language of the Codes is often vague, therefore problems of interpretation arise. With respect to enforcement provisions, great differences become immediately apparent regarding enforcement mechanisms. Numerous challenges for purely market-based enforcement remain. In that regard, it has been suggested that the PMSC industry does not face a competitive market. The imperfections in the market, however, suggest not that CSR initiatives and CoCs cannot play a beneficial role, but rather that, for the time being, firms must rely on enforcement mechanisms beyond the market itself if their CSR efforts are to be taken seriously.
Finally, it should be noted that the PRIV-WAR consortium participated in the consultations on the International Code of Conduct for Private Security Providers, which was signed by 58 private security companies from the UK, US, Africa and the Middle-East in November 2010.
E. Examining the existing regulation at the domestic level
The research activities for the achievement of this objective represent one of the most original elements of PRIV-WAR, which differentiate it from any other effort so far taken in this field. 21 reports on domestic legislation and case law have been published on the PRIV-WAR website, www.priv-war.eu. These reports include an analysis of the national regulatory context of PMSCs in 14 EU Member States (the Netherlands, the United Kingdom, Italy, Germany, France, Spain, Belgium, Finland, Portugal, Latvia, Lithuania, Estonia, the Czech Republic and Sweden). While each domestic legal system of the EU Member States has its own characteristics and details, it is interesting to note that specific legislation pertinent to PMSCs activities in conflict situations abroad is (almost) absent within the EU. Although most domestic legislations within (and outside) the EU Member States contain regulations pertaining to specific private security services as well as to the carrying or use of (fire-) arms, none of those (seek to) extend extraterritorially to the conduct of private parties in areas of tension abroad which may give rise to issues of compliance with IHL and human rights law. In the absence of specific legislation, enforcement of compliance by the PMSCs with international legal standards - apart from criminal law - would have to be through the contract before domestic civil courts. The national reports of EU Member States indicate that the number of domestic court cases (both criminal and civil law based) against private contractors in this field is minimal. But even if court cases are initiated for PMSC liability arising from breach of contract or tort based on clear violations of applicable standards of international law - such as has been going on in the US - there may be many jurisdictional hurdles to overcome, as the national report from the US clearly indicates.
In addition, national reports on the United States, Canada, Australia, the Russian Federation, Israel, Brazil and Colombia examine the regulatory context of the domestic legislation in relevant third States. They represent a systematic analysis of the domestic legislation in crucial players outside the EU, namely those with a significant practice in the field of PMSCs, including examples of 'Host States' and 'Home States'. The value of such an effort is twofold. Not only does it serve to look beyond the United States as the main actor in military outsourcing, but it also provides a comparative assessment of the approach adopted in other relevant non-European legal orders. Nonetheless, the Chapter by Kristine Huskey and Scott Sullivan offers an updated and comprehensive survey on the US law and policy governing private military contractors after 9/11: despite the efforts by the Department of Defense and Department of State to remedy problems with the use and oversight of military contractors, both the Commission on Wartime Contracting and the Government Accountability Office (GAO) continue to document the need for better management and accountability, clearer standards and policy, and improved screening and training of contractors (K. A. Huskey & S. M. Sullivan, 'United States: Private Military Contractors & U.S. Law After 9/11' in Bakker and Sossai (eds.) Multilevel Regulation of Military and Security Contractors, forthcoming 2012).
The chapters on Colombia and Israel constitute a systematic analysis of the use of PMSCs in two countries which have been involved in an armed conflict in recent decades. The case of Israel is of particular interest: the point is made that the attention of Israeli policy makers on the question of the civilianization of the military and privatization of certain functions is related to the specificities of the governmental structure where the military establishment has originally been involved in various functions that are ordinarily assigned to civilian and even private operators.
These research results, in addition to the report analysing the current regulatory situation of PMSCs at the EU level -which proved to be scarce- provided a solid basis for the formulation of proposals on possible regulatory measures that could be adopted at the EU level. A selection of the reports on national legislation and case-law and on the existing regulation at the EU level have been included in the second book, Multilevel Regulation of Military and Security Contractors: the Interplay between International, European and Domestic Norms. This volume will also contain a chapter aimed at giving a comprehensive overview of various legal challenges posed from a tax perspective by the use of PMSCs. They cover inter alia the tax implications of the residence of such companies and the question of tax exemptions and tax breaks granted to PMSCs, as well as the issue of confidentiality in the exchange of information.
F. Criminal and civil liability of private military and security companies: the prosecution of crimes and the settlement of disputes
Three main issues were addressed: i) the exercise of criminal jurisdiction over PMSCs and their personnel; ii) the exercise of civil jurisdiction over tort claims; and iii) the arbitrability of controversies.
i) the exercise of criminal jurisdiction
PRIV-WAR discussed the status of private military personnel under international criminal law. Perpetrators of international crimes are frequently integrated into a hierarchically structured collective, such as an army or police force. The system of order and obedience essential to the functioning of these entities, the existence of which underlies a number of principles of international criminal law, cannot be simply presumed to exist within a private military company (PMC) or between a PMC and the hiring State. As a consequence, the private nature of the company may become an issue, particularly when one considers the capacity of their personnel to commit war crimes or to incur superior or command responsibility. PRIV-WAR considered problems of implementation and jurisdiction and touches briefly on the question of corporate criminal responsibility of the PMC itself. International criminal law can be an efficient part of the legal regime governing the use and conduct of private military companies, although many of the legal issues discussed remain to be tested.
A paper to be published in the volume 'Multilevel Regulation of Military and Security Contractors' takes a closer look at the classical legal bases for the exercise of criminal jurisdiction over PMSCs and their employees, as they emerge from the above analysis of national legislation: the principles of territoriality, active and passive personality, the protective principle and universality. This paper also deals with other important issues, including the criminal jurisdiction for private contractors hired by international organisations and the question of the criminal liability of legal persons.
A related question is to what extent different kind of immunities may bar legal proceedings instituted against PMSCs and their employees. The first part of the chapter by Micaela Frulli, published in War by Contract, is devoted to the setting of the legal background on international law rules on immunity which may be applicable, in certain cases, to PMSCs and their employees. The second part of the paper addresses the issue of immunity of PMSCs employees from criminal jurisdiction taking into account existing case-law. The conclusion is that, in most cases, immunity of private contractors from criminal jurisdiction seems not to depend on the application of immunity rules but, for a large part, from the combination of a lack of applicable rules to exercise criminal jurisdiction and a lack of political will to proceed. As to civil proceedings, the most relevant obstacle that has prevented courts form exercising their jurisdiction over PMCSs and their employees (mainly in US case-law) is the so-called "political question doctrine", that has been invoked in most relevant civil suits and has been accepted by some courts and rejected by some others. The author of this paper is of the opinion that such a doctrine (and similar ones) was crafted to protect the exercise of governmental functions and should be narrowly interpreted. In particular, there should be no bar on judicial review when international human rights law violations occur, since the governments themselves are bound to ensure respect for these rules and shall foster a culture of accountability for their officials and for private contractors they have decided to hire.
The same author explored the applicability of the doctrine of command responsibility to State officials who have private contractors among their subordinates and to PMSCs managers and senior employees who are increasingly hired to perform relevant State functions in very complex situations (M Frulli, 'Exploring the Applicability of Command Responsibility to Private Military Contractors' (2010) 15 Journal of Conflict and Security Law 435). After an abbreviated history of the evolution of the doctrine of command responsibility, the author explores the viable options to apply such doctrine both to State officials exercising authority over private subordinates and to private superiors contracted to exercise crucial State functions. It is submitted that the doctrine, if conceived as a 'dereliction of duty' type of liability (liability by omission) and interpreted with flexibility, could represent an appropriate tool to prosecute both State officials having private employees amongst their subordinates and PMSCs managers and senior private contractors exercising their authority over lower ranking private subordinates or over lower ranking military officers. More specifically, building on past episodes and drawing some hypothetical cases, it is possible to argue that there may often be sufficient basis to prove that those in command-whether State officials or PMSCs employees-at least failed to duly supervise their subordinates who committed serious crimes or failed to report them to competent judicial authorities. As far as PMSCs managers are concerned, it could also be contended that they may be responsible for failure to prevent the commission of serious violations of international humanitarian law by not providing adequate training for their employees to whom delicate tasks are assigned, and for failure to report in cases where they did not provide for a functioning and effective reporting system.
Great powers, such as the United States and the United Kingdom, have expanded the competence of military courts to civilian contractors. Although the matter of PMSC employees has not been debated in depth by international human rights bodies, it is encompassed within the wider issue of civilians brought before military courts. In this regard, human rights concerns have been raised over the application of military jurisdiction to 'civilians'. A chapter of the forthcoming volume Multilevel Regulation of military and Security Contractors focuses on the approach taken by the European Court of Human Rights with regard to military criminal justice. In particular, the authors examine the compatibility of military jurisdictions with the Convention system of protection: indeed, the Strasbourg Court has taken a critical position on both military courts and special courts, because of their lack of independence and impartiality when they are composed of civilian and military judges.
ii. The exercise of civil jurisdiction over tort claims
A Chapter entitled 'Liability in tort of Private Military and Security companies: Jurisdictional Issues and Applicable Law' is included in the book War by Contract (A Atteritano, 'Liability in Tort of Private Military and Security Companies: Jurisdictional Issues and Applicable Law', in War by Contract, 470). The author discusses civil lawsuits against PMSCs for international crimes committed by their employees. The reports on domestic legislation were also an essential tool in order to establish the competent court and the applicable substantial law regulating such lawsuits.
iii. The arbitrability of controversies
A research paper on the arbitrability of controversies involving PMSCS has been drawn up by Ieva Kalnina (Riga School of Law). There are various types of controversies that may arise during the performance of PMSCs' services. The paper considers the most frequent disputes involving PMSCs and namely controversies relating to (1) the execution of contracts concluded with the home State; (2) the execution of contracts concluded with the host State; and (3) labour disputes. In this context, the question arises as to whether PMSCs on the one hand and States (or persons employed by PMSCs) on the other hand may decide, as parties to a contract, to subject the resolution of their disputes to arbitration, thereby avoiding national courts. Lately there has been considerable controversy, particularly in the context of labour disputes, as to whether it is appropriate to resolve disputes involving PMSCs by arbitration. It has been argued that the nature of such disputes often involves questions of public policy and that thus the arbitrability of such disputes is questionable. After a brief description of the most common controversies involving PMSCs, the paper addresses the advantages and disadvantages in submitting such controversies to arbitration, with due consideration to the necessary balance between the will of the parties and public policy.
G. Options for regulation at the national and EU level: A registration/licensing regime?
The 'Interim Report Describing the Potential Impact of Licensing and Regulation on State Control over the Activities of PMSCs' was submitted by Dr Adam White (Sheffield). Dr White drew upon his academic research on the UK experience of regulating the activities of PMSCs in the domestic sphere to make suggestions about how to regulate the operations of PMSCs in the international sphere. The paper is divided into three parts. Part One provides a brief conceptual examination of the relationship between the state, regulation and the pluralisation of security provision in both the domestic and international spheres. Part Two evaluates the effectiveness of the British State's attempts to regulate the activities of PMSCs in the domestic sphere since the passing of the Private Security Industry Act 2001. Part Three addresses two key questions: to what extent can the model of domestic regulation in Britain be extended upwards to control the activities of PMSCs in the international sphere?; what lessons can we take from the experiences of this actually-existing regulatory regime in the domestic sphere when considering frameworks for regulating PMSCs in the international sphere?
In addition, the research team from Sheffield/Nottingham produced a report entitled 'FCO Public Consultation on PMSCs: Response by Sheffield Priv-War Research Team.' The response critiques the Governments proposals for a self-regulatory regime, favouring a stronger regulation in the form of a licensing model. Section 1 evaluates the strengths and weaknesses of the voluntary Code of Conduct proposed by the UK government drawing on past experience of voluntary regulation of the domestic security to make recommendations on the proposals. Section 2 analyses the impact assessment's proposed costs and benefits, pointing out the weaknesses of the assessment in terms of the preference shown to self-regulation over the advantages of stronger regulatory options. Section 3 recommends that a code of conduct should be functionally based with focus on activities/services which would, if conducted by PMSCs, produce a real possibility of violations of either human rights law or international humanitarian law. It includes a list of activities that should and should not be carried out by PMSCs along with human rights and international humanitarian standards that should be included in a code of conduct. Section 4 evaluates the effectiveness of the proposed monitoring and sanctions regimes, articulating a stronger role to be performed by the Government. Section 5 addresses the possibility for improving the accountability and monitoring of the industry through international initiatives including corporate social responsibility, the Montreux Process and stronger international initiatives.
ii. Assessing the consequences of the different legislative techniques in the EU Member States, in regulating, licensing and registration of PMCs/PSCs
On 29 October 2010, a workshop was held in Utrecht, the Netherlands, to discuss the form and content of Priv-War consortium recommendations for the regulation of PMS services at the level of the European Union (EU). Following insightful presentations by Dr. Elke Krahmann (Senior Lecturer, University of Bristol) on the status of current EU regulations of PMS services and by Professor Natalino Ronzitti on steps toward a prohibition of active combat functions for EU-based and EU-hired PMSCs, the consortium delegations entered into an in-depth discussion of concrete recommendations for EU regulatory action, the need for which was illustrated by the consortium's discovery and analysis of disparate laws and practices within the EU Member-States. The result of the workshop was the formulation of and agreement on a document entitled 'Priv-War Recommendations for EU Regulatory Action in the Field of Private Military and Security Companies and their Services'.
After an informal meeting with representatives of the European Commission, the Council and the European External Action Service (EEAS) in Brussels on 4 February 2011, the seven participating universities in March 2011 released the final version of the Priv-War Recommendations.
These Recommendations were presented atthe final Conference of the project held in Brussels in April 2011. They are based on the assumption that 'with the entry into force of the Lisbon Treaty, entailing the legal upgrade of the EU Charter of Fundamental Rights and the obligation upon the EU to accede to the European Convention of Human Rights and Fundamental Freedoms, EU institutions and EU Member States, when acting within the scope of EU law, have confirmed and consolidated their significant role as guarantors of fundamental rights, and their willingness to be bound by them'. The document is composed of thirteen recommendations, which contain various proposals for the regulation of PMSCs and their services. The suggested options consider the adoption of both legally binding and non-legally binding instruments, covering on the one hand the harmonisation of national measures regulating private military and security services within the internal market, and on the other hand the regulation, in the context of CFSP, of the export of such services to third countries. For each of the thirteen core Recommendations, explanatory notes are presented which provide details on the applicable legal bases and other essential elements.
It should be noted that the European Parliament adopted a resolution on 11 May 2011 in which it considered that 'the adoption of EU regulatory measures, including a comprehensive normative system for the establishment, registration, licensing, monitoring and reporting on violations of applicable law by private military and security (PMS) companies - both at internal and external level -, is necessary '. (Resolution 2010/2299(INI) on the development of the common security and defence policy after the entry into force of the Lisbon Treaty, paras 53 and 54). It is significant that the two proposals put forward by the European Parliament precisely reflect the content of the Priv-War Recommendations.
In addition, three papers were produced discussing how possible regulatory action by the EU would complement the international initiatives and assess its potential impact at the national level for the Member States. These contributions offer further elements of investigation and discussion as regards the content of the Priv-War Recommendations. Chapter 2 of the forthcoming volume (G Den Dekker, 'The Regulatory Context of Private Military and Security Companies at the European Union Level' in Multilevel Regulation of Military and Security Contractors, forthcoming 2012) takes stock of the existing regulatory context: while observing that at the EU level there are as yet no specific norms with respect to the private military and security industry, the author investigates existing regulations and case law which may have implications for PMSCs and their services. This chapter also touches on the EU position with respect to international humanitarian law and the regulatory context of EU crisis management operations. In Chapter 3 of the same book, Prof. Marco Gestri assesses the legal bases and the normative instruments which are available to the EU institutions for further regulation, in the light of the constitutive Treaties after Lisbon and on account of the principle of conferred powers, set forth in Article 5 paragraph 2 of the Treaty on the European Union.
Moreover, the contribution by Dr. Mirko Sossai and Dr.Christine Bakker intends to show the different tools at the disposal of the EU in to the context of its external activity to ensure compliance with human rights and international humanitarian law by PMSCs. The analysis addresses thus far neglected issues in the legal literature, including the use of private contractors in humanitarian aid operations financed by the EU, as well as the possible inclusion of the topic of PMSC regulation in the framework of the human rights dialogue between the EU and third States.
Finally, Dr Elke Krahmann produced a paper 'The Regulation of Private Military and Security Services in the European Union: Current Policies and Future Options', which discusses options for the regulation of PMCs/PSCs in the EU. The paper is structured into four main sections. Section 2 discusses the definition of PMCs/PSCs and private military and security services for the purposes of regulation. Section 3 analyses the form and content of existing EU policies and regulations which affect PMCs/PSCs. Section 4 examines how these policies and regulations have been translated into national law among the Member States and what additional national controls can provide examples of 'best practice' for the regulation of PMCs/PSCs. Finally, section 5 discusses several options for improving the regulation of PMCs/PSCs in the EU.
H. The PRIV-WAR Recommendations for EU Regulatory Action in the Field of Private Military and Security Companies and their Services
Hereunder, the text of the thirteen recommendations is reproduced, without its explanatory notes, as adopted by the PRIV-WAR consortium in March 2011. For the complete text of the PRIV-WAR Recommendations, including the Commentary, see www.priv-war.eu .
1. EU regulatory measures related to PMS companies and their services are necessary in order to ensure better compliance with human rights law (HRL) and international humanitarian law (IHL).
2. For the purpose of these Recommendations, private military and security companies can be defined as business corporations offering security, defence and/or military services to States, international organizations, non-governmental organizations, private companies and/or armed groups. These services include but are not limited to armed guarding and protection of persons, objects, buildings or merchant vessels; maintenance and operation of weapons systems; prisoner detention and interrogation; intelligence; as well as advice to or training of local forces and security personnel.
3. Options for EU regulatory measures are the following:
a) A Directive (Internal Market), harmonizing national measures regulating Private Military and Security (PMS) services, including service providers and the procurement of services; or
b) A non-legally binding instrument, such as a Council Recommendation, containing guidelines for the Member States on the domestic regulation of PMS services, including services delivered in third States;
c ) A Decision (CFSP), regulating the export from Member States of PMS services to third States and the use of such services by the EU; or
d) A non-legally binding instrument, such as a Council Strategy Document, defining guidelines for the export from Member States of PMS services to third States and the use of such services by the EU.
4. The object and scope of EU regulatory measures should include a normative system for the establishment, registration, licensing and monitoring of PMSCs located within the jurisdiction of EU Member States or hired by these States or other entities and organizations for the delivery of services, including in third States, and for reporting to competent authorities on violations of applicable law by such companies and their personnel and sub-contractors.
EU regulatory measures should indicate that the Member States shall make the provision of licenses conditional on the fulfilment of certain standards. These should include: compliance with HRL and IHL; training in HRL and IHL, including on women's and children's rights and the specific protective measures that are required; vetting of PMSC personnel; technical training for example on gun use and policies; specific conditions according to the situation in which the services will be provided; compliance with EU policies in the areas of security and foreign policy; satisfactory reporting requirements; adequate insurance and remedial provision.
5. EU regulatory measures should address the due diligence obligations under HRL and IHL of EU Member States in their capacity as hiring States and home States of PMSCs. As a minimum they should warrant that only registered and properly licensed companies are hired.
EU regulatory measures should stipulate that PMSCs ensure that their personnel, sub-contractors and those in their supply chains adhere to HRL and IHL standards.
6. EU regulatory measures should set minimum standards for monitoring and sanctions to be applied at the level of Member States. Such standards may include requirements for administrative or civil procedures, and when appropriate, the use of criminal sanctions if this is consistent with the domestic law of the Member States. The regulatory measures may also set standards for self-regulation as complementary means for ensuring accountability of PMSCs and their personnel.
7. The EU should ensure coordination of the monitoring practices at the national level and of self-regulation of PMSC entities, with a right of data access for national authorities.
Such coordination may include a register of poor performance, claims of poor performance, criminal investigations and civil suits, and other elements such as remedies granted that may offer an objective record of performances by PMSC companies.
8. A Decision based on Article 29 TEU, or a non-legally binding instrument, such as a Code of Conduct, should also define standards for the hiring of PMSCs by the EU itself in the context of its CSDP operations.
This Decision or non-legally binding instrument should also define standards for monitoring and sanctions at the level of the EU in relation to PMSC entities that are hired at the level of the EU.
9. EU regulatory measures should also include guidelines on the use of PMSCs in its humanitarian aid operations. As a general rule, they should not be employed unless certain conditions are met.
10. EU regulatory measures should stipulate that the EU and its Member States should ensure that effective access to justice and appropriate remedies are available to victims for injuries suffered as a result of the wrongful conduct of PMSC personnel.
11. The EU should take into consideration the need for regulation and accountability of PMSCs in its external relations including, as appropriate, inserting a specific clause on PMSCs in its international agreements with third States.
12. EU regulatory measures should apply in the event that PMSCs are employed to protect merchant shipping in countering piracy, in self- defence and in conformity with HRL, IHL, and the international law of the sea.
13. The EU regulatory measures should be without prejudice to more stringent measures that Member States may adopt or maintain, consistently with international law and EU law, for the regulation and supervision of PMSCs and their services.
I. Creating a European academic network of experts in the field of the regulation of private military sector
Since its very beginning, the PRIV-WAR consortium took the initiative to discuss the issue of regulation of private military and security companies with other academic experts. The first opportunity was the Symposium co-organised with the European Journal of International Law (EJIL) in June 2008. Five papers presented at this event were then included in the issue 5/2008 of EJIL. The whole set of papers produced on the basis of this symposium are also published as EUI/AEL Working Papers, and are equally made available at the project website www.priv-war.eu. The Journal's weblog (www.ejiltalk.org) joined our website in the dissemination of the papers and in promoting further discussion. In February 2009 an on-line debate was launched, with the participation of distinguished European and American scholars. All the other events organised within the framework of PRIV-WAR contributed to the creation of a wider network of experts, having different backgrounds, which brought a clear interdisciplinary character to the project. Contacts were established with other initiatives at academic and institutional level in the field of PMSCs regulation: in particular, with the International Committee of the Red Cross, the Swiss Government and DCAF (Geneva Centre for the Democratic Control of Armed Forces), who are all involved in the above mentioned Montreux process, and in the implementation of the International Code of Conduct for Private Security Providers. At the Final Conference, some 100 participants came together from academia, relevant third States (in particular the US as the main home State of PMSCs and Afghanistan and Iraq as prominent host States), EU institutions (Commission, EEAS and the European Parliament), other regulation initiatives, EU Member States, NGOs and the PMS industry itself. It was the first time that all these different actors joined the debate with a specific focus on a possible role for the EU in this field.
PRIV-WAR addresses one of the fundamental aspects of the dynamics of present-day armed conflicts: the progressive involvement and the growing relevance of non-state entities in war scenarios. Also the growing use of private contractors in crisis situations not amounting to an armed conflict, have been considered. Not only is the project clearly influencing the academic debate, its results also have wider implications at the policy level, as regards the future regulation of the private military and security industry.
A. Impact on the scientific community
PRIV-WAR has dealt with the crucial problem of the protection of human rights and the respect of international humanitarian law in situations where the threats come from private entities rather than (directly) from State agents. This represents a major challenge to the traditional paradigm underlying the current international system of legal protection, including the legal protection for vulnerable groups. On the one hand, PRIV-WAR has focused on state responsibility issues, addressing the important questions of attribution, the applicable primary norms, due diligence and reparations in the PMC/PSC context. On the other hand, it has assessed options to hold private companies accountable. This also entailed a review of the initiatives of self-regulation by the private sector.
The publication of two books (War by Contract, Oxford, 2011 and Multilevel Regulation of Military and Security Contractors, forthcoming, Hart, 2012), by two leading publishing houses, ensure that the main outcomes of the research are made available to the scientific community.
The Symposium in the European Journal of International Law (issue 5, 2008) already represented a unique opportunity to promote the debate among international lawyers and to improve the exchange of views on these fundamental theoretical issues. The Journal's weblog (www.ejiltalk.org) joined our website in the dissemination of the papers and in promoting further discussion. In February 2009 an on-line debate was launched, with the participation of distinguished European and American scholars. All the other events organised within the framework of PRIV-WAR contributed to the creation of a wider network of experts from different backgrounds, which brought a clear interdisciplinary character to the project. Contacts were established with other initiatives at academic and institutional level in the field of PMSCs regulation: in particular, the International Committee of the Red Cross, the Swiss Government and DCAF (Geneva Centre for the Democratic Control of Armed Forces), who are all involved in the above mentioned Montreux process, and in the implementation of the International Code of Conduct for Private Security Providers. Moreover, members of the project consortium have attended meetings of the UN Human Rights Council Working Group on the Use of Mercenaries, and provided critical comments on its Draft of a Possible Convention on Private Military and Security Companies.
Moreover, the production and publication of a considerable body of reports on the national regulatory context regarding PMSCs in 21 States, both within the EU and in other States which are of particular importance for this topic -such as the USA, South Africa, and the Russian Federation-, has already proven valuable to the discussion of the subject. Indeed, this is the most comprehensive collection to date of a substantive analysis of the existing regulation of PMSCs and their services at the national level, pointing to best practices and major gaps. The main outcomes of the research have been assembled in two academic volumes. The first volume, War by Contract, has already reached a large number of readers both within Europe and beyond. This book, but also the other publications of the project are regularly cited in recent literature and in the international debates on issues related to PMSCs.
Presentations of PRIV-WAR results were made in various academic contexts, by members of the research teams of the seven participating universities. A full list of these presentations is included in Table A1 (Dissemination Activities) below. Some examples are the following:
At the Annual Symposium of the Italian Yearbook of International Law, organized by Francesco Francioni in Naples, Judge Tulkens and Judge Costa of the European Court of Human Rights were invited to speak about the role of the Court in the monitoring of private military and security activities (15-16 April 2011);
Dr.Christine Bakker attended a Conference at the University of California, Irvine organised by Prof. D. Avant, 'Information for Monitoring the Global Private Military and Security Industry: What do we know, what dowe need to know and how can we know it?, where she presented the project's research, in particular the analysis of domestic regulation in Europe and at the EU level, and the book War by Contract (27-29 January 2011);
Eugenio Cusumano (PhD Candidate at the EUI) made two presentations at the Annual International Studies Association Conference, Ottawa, on 'Outsourcing as a New Raison d'Etat' and 'Outsourcing of Military Training to PMSCs' (16-19 March 2011);
Professor White attend a seminar on 'Private Military and Security Contractors and International Law', at the Centre for International Law, University of Aberystwyth (11 March 2011);
Dr Faustin Z. Ntoubandi (JLU Giessen) presented the PRIV-WAR project at the Faculty Recruitment Conference organized under the auspices of the Association of American Law Schools, 28-30 October 2010, Washington D.C. (USA); presentation made before the Scientific Community of the University of South Texas, and of Chapman University (28-30 October 2010).
In June 2009, Dr Mirko Sossai (LUISS) made a presentation on the 'accountability gap' in the framework of private military and security industry at a Conference on the 'Prohibition of Torture under International Law' hosted by the University of Venice (Italy);.
B. Future impact at policy level
The work undertaken in the context of the PRIV-WAR project has indeed informed the debate, not only within the academic world in Europe, but also within international organizations, including the United Nations, as well as in the PMSC industry itself.
Therefore, the PRIV-WAR project has gone beyond its initial objectives by adding various topical subjects to its research; by publishing two academic volumes with highly rated publishing houses, and by influencing the policy debate within the European Union with concrete, tangible results.
At the Final Conference, some 100 participants came together from academia, relevant third States (in particular the US as the main home State of PMSCs and Afghanistan and Iraq as prominent host States), EU institutions (Commission, EEAS and the European Parliament), other regulation initiatives, EU Member States, NGOs and the PMS industry itself. It was the first time that all these different actors joined the debate with a specific focus on a possible role for the EU in this field.
The long term impact of the project will be, provided that the political will among the EU Member States and within the European Commission to do so will be strengthened, the development of a satisfactory regulatory scheme for PMSCs and their services within the European Union. It has already underlined the potential of a unified European regulation scheme to ensure, inter alia, accountability and responsibility of PMSCs.
It should be noted that two weeks after the final Conference, on 11 May 2011, the European Parliament adopted Resolution 2010/2299(INI) on the development of the common security and defence policy after the entry into force of the Lisbon Treaty, which specifically refer to the need for EU regulatory measures in the field of private military and security companies. The fact that the relevant paragraphs cover exactly the same elements as those included in the PRIV-WAR Recommendations can be considered as a clear proof of the policy-relevance of this FP7 project.
As for the most relevant dissemination activities, the following events are noteworthy.
Prof. Natalino Ronzitti participated in a public hearing before the Committee of the Foreign Affairs of the European Parliament on the topic "Private Security Companies in International Crisis Operations, 15 March 2011;
On 25 and 26 May 2011: Prof. Francesco Francioni, Prof. Natalino Ronzitti and Dr. Christine Bakker met with Roberto Gualtieri and Franziska Brantner, Members of the European Parliament
to discuss how further steps could be taken in order to ensure that regulatory action is adopted at the EU level, and to explore possibilities for follow-up activities;
In January 2010, Prof. Francesco Francioni made a presentation at the High-Level Conference on EU-US Relations Co-organised by the European Commission and the Spanish EU Presidency, 'Mapping the Future of the EU-US Strategic Partnership: Policy and Research Perspectives', entitled
'Reframing Human Rights in the Context of the Privatization of War';
At the national level, Dr. Guido den Dekker made a presentation on the PRIV-WAR project before the Dutch Ministries of Defence and Foreign Affairs on October 2008. In France, the Paris II Research Team presented the PRIV-WAR results at the Delégation aux affaires stratégiques, Department of Defense on 15 September 2010.
Prof. Nicolas Haupais and Prof Julian Fernandez (Paris II) presented the project at a conference at the Fondation pour la recherche stratégique, FRS a main french think tank, to an audience of around 100 officials, academics, industry representatives and other stakeholders (12 November 2010);
The Sheffield/Nottingham team contributed to the FCO Public Consultation on PMSCs. Prof. Nigel White submitted written evidence to the Foreign Affairs Committee Human Rights Inquiry on 'The Responsibilities of the FCO for Securing the Human Rights of British Citizens and Others Overseas' with contributions from Alexandra Bohm, Christy Shucksmith and Kerry Senior in April 2009, and the team submitted a response to UK Foreign and Commonwealth Office (FCO) Public Consultation on PMSCs on 17 July 2009.
Prof. Dr. Thilo Marauhn has presented the PRIV-WAR recommendations to the German Advisory Committee on International Humanitarian Law (German Red Cross and German Federal Government) on 21 February 2011, Berlin (Germany).
Finally, the project results were also presented to the Military, at two occasions:
Prof. Natalino Ronzitti, Prof. Francesco Francioni, Dr. Marina Mancini, and Dr.Mirko Sossai presented the research results and of the book War by Contract at the CASD in Rome, to an audience of some 300 military officers from around the world (28 June 2011);
Prof. Natalino Ronzitti, Dr Mirko Sossai , Dr Giulio Bartolini and Dr Christine Bakker presented the project's main research outcomes at the Institute for International Humanitarian Law in San Remo, Italy, to some 35 military officers from various regions (14 June 2011).
On the whole, the PRIV-WAR team has widely disseminated the outcomes of its comprehensive research and has actively participated in the academic debate as well as in discussions on regulatory options of the private military and security industry at the national, European and international level. The project has become a reference point for research on the topic, as evidenced by the regular citations of its work by other academics.
Use and dissemination of foreground
The main foreground of the PRIV-WAR Project are its publications, on the one hand, and the PRIV-WAR Recommendations for EU Regulatory Action in the field of Private Military and Security companies and their Services on the other.
The main publications consist of two academic volumes:
War by Contract: Human Rights, Humanitarian Law and Private Contractors (F. Francioni and N.Ronzitti eds; Oxford University press, January 2011);
Multilevel Regulation of Military and Security Contractors: The Interplay between International, European and Domestic Norms (C. Bakker and M. Sossai, eds; Hart Publishing, forthcoming, January/February 2012).
These volumes are available to the public at large (to be purchased). Their main target groups are academics -especially lawyers and political scientists- (in Europe and beyond) policy makers at the national level, in EU Institutions; in other international organizations such as the United Nations; African Union; NGOs in the field of human rights, IHL and security issues; media; private military and security industry; lawyers.
The first volume, War by Contract, provides a comprehensive analysis of the international legal framework, in particular Human Rights Law and International Humanitarian Law, applicable to private military and security companies and their services. The growth in scope and importance of the private military and security industry in the past decade has challenged the role of the State as the main provider of defence and security functions. At the same time it has put under stress the State's authority to properly oversee the conduct of private contractors and has raised the question of whether existing rules of domestic law and international law are adequate to ensure their accountability in the event of abuse. This book addresses this question through the lens of international human rights law and international humanitarian law. It presents a systematic analysis of the way in which these two bodies of international law, applicable in times of peace and in the event of armed conflict, may be interpreted and implemented in a way so as to fill possible accountability gaps. Human rights and humanitarian law obligations are analysed from the point of view of their applicability to the States involved, to international organisations, and to the companies and their individual employees. Victims' access to civil remedies and the criminal prosecution of private contractors, as well as new policy issues, such as the use of private contractors in the fight against piracy, are also covered in the book.
The second book, Multilevel Regulation of Military and Security Contractors, complements the first volume by examining the existing regulation of PMSCs at the national level, both within the European Union, and in a number of Third States. The main goal of the present book is to analyse and discuss the interplay between international, European, and domestic regulatory measures in the field of PMSCs. The editors and authors of this volume have attempted to shed some light on the current patchwork of norms applicable to PMSCs at the international, European and domestic levels, and to suggest possible avenues for further normative developments, with a particular focus on the potential role of the European Union in this regard.
Most chapters of the volume War by Contract were first published as EUI Working Papers, and have subsequently been revised and updated. These Working Papers are still available on the EUI website (Cadmus), and on the project website www.priv-war.eu. from these two volumes, several articles were published in international legal journals (see table A.1 below). Their main target groups are the same as those mentioned above.
Moreover, an important number of research papers have been published, addressing various questions related to the increasing use of PMSCs by States, international organisations and private corporations. These papers are publicly accessible as EUI/AEL Working Papers, both through the EUI website www.eui.eu under CADMUS; or through the project website, www.priv-war.eu under Publications. On the project website, also a series of reports on national regulation of PMSCs in some 20 States (both in the EU and in third States) is available to the public. This website will remain available, also after the end of the project. These publications are listed in Table A.2 below. All these publications remain available to those who are interested after the project has been completed.
Finally, the project consortium has elaborated a set of policy recommendations for the European Union, making some concrete proposals for possible regulation of PMSCs and their services. The Priv-War Recommendations for EU Regulatory Action in the Field of Private Military and Security Companies and their Services were presented at the project's final conference, held in Brussels at the premises of the European External Action Service on 28 April 2011. The Recommendations outline several options for EU regulation, both of a legally binding, and of a non-binding nature, and are completed by detailed annotations providing an analysis of the legal bases of the proposed actions. It is to be noted that the European Parliament adopted a resolution in May 2011 in which it considered that 'the adoption of EU regulatory measures, including a comprehensive normative system for the establishment, registration, licensing, monitoring and reporting on violations of applicable law by private military and security (PMS) companies - both at internal and external level -, is necessary '. It is significant that the two proposals put forward by the European Parliament precisely reflect the content of the Priv-War Recommendations. This might be the starting point of a process towards a legal discipline of the phenomenon at the EU level: it remains to be seen whether the other institutions will follow the Parliament in this direction.
The societal impact of the project is two-fold: on the one hand, its academic analysis will inform and deepen the discussion on the phenomenon of the privatisation of 'war' among academics, policy makers, NGO's, lawyers, and within the industry itself, which may lead to a higher level of knowledge of the legal issues surrounding it; such as the obligations and responsibilities of States under international law to prevent human rights and IHL violations and to provide effective remedies when abuses occur. On the other hand, the Priv-War Recommendations will contribute to the discussion within EU Institutions and among EU Member States, on the desirability and possible forms of regulation of the private security industry at the EU level. The fact that the European Parliament has already included a specific reference to the need for such regulation in its above mentioned resolution, is an important sign of such a societal impact.
Due to the unavailability of resources after the final date of the project (30 june 2011), no other dissemination activities are foreseen. However, members of the PRIV-WAR team may still contribute to further research or to the elaboration of further policy measures at the EU level if there is an interest on the side of the EU institutions.
Grant agreement ID: 217405
1 January 2008
30 June 2011
€ 1 439 749
€ 1 138 682
EUROPEAN UNIVERSITY INSTITUTE
Deliverables not available
Grant agreement ID: 217405
1 January 2008
30 June 2011
€ 1 439 749
€ 1 138 682
EUROPEAN UNIVERSITY INSTITUTE
Grant agreement ID: 217405
1 January 2008
30 June 2011
€ 1 439 749
€ 1 138 682
EUROPEAN UNIVERSITY INSTITUTE