Per la Pau / Peace in Progress

Sonia Güell Peris

There is no legal definition of private military and security companies (PMSCs) due to the absence of a category that specifically describes them in the applicable legal instruments. However, due to their characteristics, they can be considered private companies, which are legally established to provide assistance, advice and armed security services, either as a substitute or as a complement to regular armed forces operating in areas that are in a situation of armed conflict¹. Despite the varied nature of the services they offer, the common feature of PMSCs is the extraterritorial nature of the services rendered in relation to the party hiring them, and their willingness to resort to the use of force in order to fulfil the contract.

In 2003, the United Nations Special Rapporteur on the issue of the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, warned that in addition to individual mercenaries, the soldiers of fortune generally recruited by unstable and repressive governments to ensure their hold on power, a new form of mercenary work appeared to be emerging, consisting of the presence of private multiservice companies which are attractive for other markets. The phenomenon has increased exponentially since then, both in terms of those hiring them (their clients include states with stable political structures, NGOs and the United Nations itself), in terms of units deployed in the field (a total of 207,600 private contractors has been estimated in Iraq and Afghanistan, compared to the 175,000 troops deployed in the area), and in terms of the estimated turnover of 210,000 million dollars in 2010.

There are many factors that point to the immediate causes of the proliferation of these companies, but some stand out in particular: the new trends towards outsourcing in the public sector, the availability of weapons and unemployed skilled personnel, the high cost of new international missions for armies, the very competitive level of value for money and the lack of political cost to the contracting government in the event of casualties².

Regardless of the debate on the implications of the expansion of PMSCs for the principle of the state monopoly on the use of force, there are some issues of particular concern, namely the evidence for violations of international humanitarian law and human rights and the opaque nature of the contractual relationship that seems to be a factor in the high level of impunity as regards liability for these crimes.

There are also many risks that are created on the ground and make serious reflection necessary about the advisability of contracting these companies, and where appropriate, the need to establish strong regulatory mechanisms for their activities, the qualifications of their staff and a clear determination of the scope of their work³.

In particular, the risks of most concern affect the operational level, due to the lack of a connection between private employees and the chain of command of the armed forces on the ground, which leads to their involvement in hostilities creating very serious risks for the official mission. This is in addition to the risks to the security of the contracting State, because as soon as the contract is formalised and as a result of the logic inherent in the assignment, it is to be anticipated that they will require sensitive information related to strategic positions of regular troops, quartermastering, communications and arms supply systems, which is ultimately valuable information that can be traded on the private market in violence, including terrorist violence.

1. Meanwhile, the United Nations Working Group on the Use of Mercenaries defines them as private companies which perform all kinds of security assistance, training, provision and consulting services, including unarmed logistical support, armed security guards and those involved in defensive or offensive military activities. A/HRC/4/42 of February 7, 2007, para. 3. (Back)
2. See La privatización del uso de la fuerza armada. Política y derecho ante el fenómeno de las empresas militares y de seguridad privadas. TORROJA, H ( Dir), GÜELL, S (coord), Bosch Editor, Barcelona 2009. (Back)
3. See Hacia la regulación internacional de las empresas militares y de seguridad privadas. Fundación Privada CEI, Marcial Pons, Madrid, 2011. (Back)