A.petrova RussianPMSCs LegalstatusandtheprincipleofdistinctionIHL

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Russian Private Military and Security Companies: legal status and the
applicability of the principle of distinction in situations of armed conﬂict
Thesis · May 2019

DOI: 10.13140/RG.2.2.15729.43366
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Master thesis submitted in partial fulfillment of the requirements
for the diploma Master of Laws in de Rechten a.r. Internationaal en
Europees recht
Russian Private Military and Security

Companies: legal status and the
applicability of the principle of
distinction in situations of armed
conflict
Anastasia PETROVA
0515584
Academic year 2018-2019
Promotor: Stefaan Smis

Jury: Stanislas HORVAT
Law & Criminology
“The problem with war is that it is never humane. It always involves real
people. Even soldiers are people” -Louise Doswald-Beck
2
3
Table of Content
1 Acknowledgments ........................................................................................... 6
2 Preface............................................................................................................. 8
3 Defining the Private Military and Security Industry ..................................... 10
4 General legal framework regulating PMSCs .................................................. 13

4.1 Introduction.......................................................................................... 13
4.2 International Standards regulating PMSCs .................................................. 15
4.2.1 The Montreux Document .................................................................... 15
4.2.2 The International Code of Conduct Association ...................................... 19
4.3 Self-regulation in the PMSC-Industry ......................................................... 22
4.4 Conclusion ............................................................................................ 23
5 The principle of distinction and the status of PMSC-Personnel under

International Humanitarian Law......................................................................... 25
5.1 Introduction.......................................................................................... 25
5.2 The principle of distinction in International Armed Conflicts ........................... 26
5.2.1 Armed Forces and Combatant Status ................................................... 28
5.2.1.1 PMSC employees belonging to the State Armed Forces ......................... 29
5.2.1.2 PMSC employees belonging to Organized Resistance Movements and other
Militia or Volunteer Corps ........................................................................... 31
5.2.2 Civilians.......................................................................................... 32
5.3 The principle of distinction in Non-International Armed Conflicts .................... 34
5.3.1 Persons belonging to the Armed Forces ................................................ 35
5.3.2 Persons belonging to Organized Armed Groups ...................................... 36
5.3.3 Civilians.......................................................................................... 39
5.4 Conclusion ............................................................................................ 40
6 The Russian Federation and PMSCs .............................................................. 41

6.1 Introduction.......................................................................................... 41
6.2 Mapping the Russian PMSC-industry .......................................................... 42
6.3 Regulating the Russian PMSC-industry ....................................................... 46
6.3.1 Adopting legislation .......................................................................... 46
6.3.2 Legal obstacles ................................................................................ 47
6.3.3 Political obstacles ............................................................................. 49
6.4 Conclusion ............................................................................................ 50
7 From Russia With Wa(gne)r: Cases and perspectives on the applicability of

International Humanitarian Law towards Russian PMSCs ................................. 52
7.1 Introduction.......................................................................................... 52
7.2 International Armed Conflict .................................................................... 53
7.2.1 The battle of Deir ez-Zor ................................................................... 53
7.2.1.1 Applying the principle of distinction ................................................... 55
4
7.3 Non-International Armed Conflicts ............................................................ 58
7.3.1 Battle of Debaltseve.......................................................................... 58
7.3.2 Central African Republic..................................................................... 61
7.4 The curious case of Venezuela ................................................................. 62
7.5 Conclusion ............................................................................................ 64
8 Rethinking International Humanitarian Law with regard to the use of

Russian PMSC activity? ....................................................................................... 65
8.1 Introduction.......................................................................................... 65
8.2 International Humanitarian Law sufficient to regulate and control PMSCs? ....... 65
8.3 A call for regulation without consensus on approach .................................... 66
8.4 Conclusion ............................................................................................ 68
9 Concluding Remarks ...................................................................................... 69
10 Bibliography ............................................................................................... 71
5
1 Acknowledgments
This thesis is a closing chapter, bringing an end to five years of dedicated studying and
sometimes a little less dedicated studying. However, I learned a lot about myself,
experienced new things and made long lasting friendships. At this point I can no longer
deny that the past five years were the most beautiful years of my life.
Like every large-scale project, several people have stood behind me in the support of this
thesis, therefore kind words and lots of gratitude are in order. A special thanks goes out
to my adviser and promotor Prof. dr. Stefaan Smis for guiding me through the entirety of
this project, for raising and re-raising the bar and for believing in me and my research.
Another word of gratitude goes out to H. E. Luc Jacobs, Christiaan Sys, Anne-Sophie
Massa and Gommaar Dubois from the Embassy of the Kingdom of Belgium to Poland and
Lithuania for their keen eye in recognising relevant and interesting sources, their
mentorship and connecting me with the right people.
This brings me to Colonel Guy Hanoulle and Colonel Yves Cuvelier. I want to thank them
for sharing and guiding me in gathering resources for my case studies, but also for
reflecting their passion for defence and security onto me.
I am exceedingly Grateful for the patience, love and support my family gave me, even
though this past year has been difficult for them, they did not lose their strength, nor did
they allow me to give up when I would perhaps have faltered.
6
7
2 Preface1
Almost everyone recognises Russia as a State that always brings some new controversy
onto the international scenery. The Russian Federation as an international actor has
played an important role throughout history. Centuries have gone by, yet Russia is still
one of the most often talked about States in the current media.2 Russia’s recent activities
in Ukraine and Syria3, as well as on the African Continent, and very recently even in
Venezuela has drawn much attention.4 The thing with Russia is that, quite like several
other countries, it is a major contributor to international law, yet at the same time as a
State it often violates these same laws. Exactly this is what brings controversy to the
discourse about Russia, it doesn’t matter whether one is talking about International
Human Rights Law (IHRL), International Humanitarian Law (IHL) or the rules on State
Responsibility. Where this controversy lies, there is usually a variety of legal
consequences to be found, these must be thought about and thoughtfully discussed.
Besides this typically Russian paradox, the question regarding the privatization of war
captivates many of us. Remarkably, the theme of privatization is just as old as war itself.
History shows that the State holding a monopoly on force is a relatively recent
occurrence.5 One of the things that will be addressed in this thesis is the use of private
military and security companies (PMSCs). A large number of topics concerning the use of
PMSCs has already been extensively investigated, as several countries deploy such or are
hosting such companies. Although questions remain unanswered, Western PMSCs have
already been investigated thoroughly. Recently, the use of Russian PMSCs has taken a
different turn, as such companies are being deployed more and more frequently.6 Above
of this it looks like domestic legislation in Russia is not able to keep up. The way these
PMSCs are being deployed raises several questions.
1
Due to the variety of international sources, this thesis will apply the OSCOLA referencing system.
2
Amb. Wolfgang Ischinger, ‘The Russia Paradox: How to Deal with an Aggressive, Yet Weak Power’ (EastWest
NGO, 6 juli 2016) <www.eastwest.ngo/idea/russia-paradox-how-deal-aggressive-yet-weak-power> accessed
27 May 2019.
3
Emanuela-Chiara Gillard, ‘Business goes to war: private military/security companies and international
humanitarian law’ (2006) 88 IRRC 525- 572; Kiril Avramov and Ruslan Trad, ‘An experimental playground: the
footprint of Russian private military companies in Syria’ The Defense Post (Washington D.C., 17 February 2018)
<https://thedefensepost.com/2018/02/17/russia-private-military-contractors-syria/> accessed 10 April 2018
4
John Wight, ‘Crimea is Russian, the matter is finished’, Russia Today (Moscow, 13 March 2018)
<www.rt.com/op-ed/421188-crimea-ukraine-russia-putin-uk/> accessed 27 May 2019.
5
Peter Warren Singer, Corporate warriors, the rise of the privatized military industry (first published 2003,
Cornell University Press 2008) 49-72.
6
There were a few notable factors that ignited the rising of the private military industry. The end of the Cold
War brought a wave of unemployment in the military sector. Besides that, the difference between combatant
and civilian became more blurred due to change in the conduct of hostilities. Last but not least, many countries
experienced a liberal wave, increasing the urge to privatize several public tasks see Peter Warren Singer,
Corporate warriors, the rise of the privatized military industry (first published 2003, Cornell University Press
2008) 49-72.
8
In general, this thesis will analyze whether the legal framework provided by IHL is
enough to regulate PMSCs in situations of armed conflict given the recent activities of
Russian PMSCs. As an assessment on the applicability of IHL in general would require a
more extensive research, this thesis will mainly focus on the principle of distinction and
how the use of Russian PMSCs may or may not affect the application of this principle in
situations of armed conflict. Directly derived from the previous question, the legal status
of the personnel employed by these companies will be addressed. Indirectly, some
clarifications will be sought, as to whether the use of PMSCs still conforms to
International standards.
The methodology of this research entails an analysis of international standards that

attempt to regulate this industry. The principle of distinction, as the very core of the law
of armed conflict, will be discussed in greater detail. Once the legal framework on an
international and domestic level is adequately covered, an analysis concerning the
Russian PMSC-industry as well as the domestic legal framework will be made, taking into
account existing international standards. This should expose whether the Russian
Federation and the Russian PMSC-industry act in accordance with IHL. To provide the
reader with a practical example, a selection of case studies will be discussed. These
should expose the problems and grant more insight on the practicalities of the conduct of
hostilities from the perspective of a lawful combatant. The principle of distinction not only
aims at protecting civilians, it divides all actors on the battlefield in one of the two
predefined categories, “Combatant” or “Civilian”. This thesis will reaffirm the importance
of both notions, which cannot be underestimated, since lives depend on it.
This thesis will not analyze the legitimacy of the use of PMSCs nor will it attempt to
answer in any way the question of State responsibility. The reasoning behind this is that
such actors are already deployed to situations of armed conflict and have been active
and profitable for several years. It is therefore not realistic to think that such actors
might disappear overnight. It is paramount to regulate and monitor PMSCs as soon and
as efficiently as possible, if such legislation is to have any effect. After all, the very core
of this thesis is to determine whether the principle of distinction is undermined by the
use of Russian PMSCs or not. In other words, are civilians becoming increasingly
endangered in situations of armed conflict?
9
3 Defining the Private Military and Security Industry
The blend between business and military creates a unique market for hundreds of
entities, providing a wide range of services. Before 2005, authors such as Goddard7 and
Singer8 tried to define this industry. Unfortunately, these attempts showed a lack of
consensus and were often not comprehensive.9 Two terms can be distilled from the term
“Private Military and Security Company” (PMSC), “private military company10” (PMC) and
“private security company” (PSC). While on the one hand activities of PMCs are mostly
combat and offense based, the activities of PSCs on the other hand are usually limited to
non-offensive operations.11 Throughout the years several classifications and typologies
were developed to define and distinguish both types of industries.12 However, reality
easily outpaces any type of classification due to the dynamic development of the
industry. Military and security services are often provided by the same company
demonstrating that a true differentiation between both types of industries is at best a
blurry and artificial exercise.13 Even today, companies take advantage of the changing
circumstances by providing services outside of the scope of how they describe
themselves. The development of a detailed classification of the industry and services
provided is therefore of little use and any further discussion on the topic falls outside of
the scope of this thesis.14
Logically, there is not yet a complete and widely accepted definition of PMSCs. However,
the legal doctrine is in the process of attempting to create one. The joint initiative of the
Swiss Federal Department of Foreign Affairs and the International Committee of the Red
Cross (ICRC) created “The Montreux Document on pertinent international legal
obligations and good practices for States related to operations of private military and
7
Scott C. Goddard, ‘The Private Military Company: A Legitimate International Entity Within Modern Conflict’
(Thesis, United States Army Command and General Staff College 2001) 8.
8
Peter Warren Singer, Corporate Warriors: The Rise of the Privatized Military Industry (first published 2003,
Cornell University Press 2008) 1-50.
9
Such definitions entail far reaching legal consequences because they exclude companies providing services to
illegitimate domestic and foreign entities which is a problem as such entities are usually the industry’s biggest
client.
10
Scott C. Goddard, ‘The Private Military Company: A Legitimate International Entity Within Modern Conflict’
(Thesis, United States Army Command and General Staff College 2001) 8
11
Daniele Hadi Irandoost, ‘A Comparison of Private Security Contractors and State-Based Armed forces’ (thesis,
Aberystwyth University 2017).
12
Examples are, the classifications by Peter Singer, Kinsey and Krahmann; Peter W. Singer, Corporate
Warriors: The Rise of the Privatized Military Industry (first published 2003, Cornell University Press) 1-50;
Christopher Kinsey, Private Contractors and the Reconstruction of Iraq: Transforming Military Logistics
(Abingdon: Routledge) 25-50; Elke Krahmann, ‘Regulating Private Military Companies: What Role for the EU?’
(2005) 26 (1) Contemporary Security Policy 103.
13
Nigel White, ‘Regulation of Private Military and security sector: Is the UK fulfilling its Human Rights Duties?’
(2016) 16 Human Rights Law Review 585
14
Ase Gilje Østensen, Tor Bukk Voll, Russian Use of Private Military and Security Companies: the implications
for European and Norwegian security (FFI-Rapport 18/01300, CMI 2018) 1
10
security companies during armed conflict” (“The Montreux Document”). 15 This document
defines “PMSCs” as “private business entities that provide military and/or security
services, irrespective of how they describe themselves.”16 Military and security services
include, “in particular, armed guarding and protection of persons and objects, such as
convoys, buildings and other places; maintenance and operation of weapons systems;
prisoner detention; and advice to or training of local forces and security personnel”.17
Another attempt to define the industry came in 2010 in the form of “The Draft
Convention on PMSCs18” presented by the United Nations Working Group on the use of
Mercenaries and PMSCs.19 This document describes the PMSC as “a corporate entity
which provides on a compensatory basis military and/or security services by physical
persons and/or legal entities.”20
The International Code of Conduct of 2010 describes Private Security Companies as “any
Company (as defined in this Code) whose business activities include the provision of
security Services either on its own behalf or on behalf of another, irrespective of how
such Company describes itself”.21
Considering all these definitions out there, the definition formulated by the Montreux
Document should be considered as the most comprehensive one. Mainly because it sets
up general standards to define PMSCs irrespective of how they describe themselves and
by including both military as security services, unlike the definition of the ICoC which
only seems to refer to Private Security Companies.
Defining PMSCs comes with a set of challenges. It is clear that PMCs differ from PSCs.
Defining the difference between PMCs and PSCs is far more difficult as both types of
companies are active in situations of armed conflict and offer a range of services that
often overlap. This creates the possibility for such companies to describe themselves as
15
ICRC, ‘The Montreux Document On pertinent international obligations and good practices for States related to
operations of private military and security companies during armed conflict’ (Geneva, 17 September 2008)
(hereafter: The Montreux Document).
16
The Montreux Document 9-10.
17
ibid.
18
Draft of a possible Convention on Private Military and Security Companies (PMSCs) for consideration and
action by the Human Rights Council, Annex 1 in United Nations Human Rights Council, Report of the Working
Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of
peoples to self-determination (A/HRC/15/25, 2 July 2010).
19
United Nations Human Rights Council, Report of the Working Group on the use of mercenaries as a means of
violating human rights and impeding the exercise of the right of peoples to self-determination (A/HRC/15/25, 2
July 2010).
20
art. 2 Draft of a possible Convention on Private Military and Security Companies (PMSCs) for consideration
and action by the Human Rights Council, Annex 1 in United Nations Human Rights Council, Report of the
Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of
the right of peoples to self-determination (A/HRC/15/25, 2 July 2010).
21
International Code of Conduct for Private Security Service Providers (Swiss Confederation and ICRC, 9
November 2010) 4.
11
private security companies while providing services that fall within the scope of private
military services. With this in mind, it is more useful to work with the term private
military and security companies (PMSCs).
In essence, PMSCs could be described as profit based private entities providing a variety
of services usually associated with services normally executed by the State’s armed
forces or security sector. In this thesis the term PMCS will be used as a general term.
However, bear in mind that defining companies based on the services they provide is
much more accurate than how they describe themselves.22
22
Lindsey Cameron, ‘Private military companies: their status under international humanitarian law and its
impact on their regulation’ (2006) 88 (863) International Review of the red Cross 575; Solvej Karlshøj
Christiansen, ‘Private Military-and security Companies and the lack of national legislation- Hired help or the way
to the future?’ (Master thesis, Aalborg University 2010) 8; James M. O’Brien, ‘Private military companies: an
assessment’, (Master thesis, Naval Postgraduate School California, 2008) 3; Fred Schreier and Marina Caparini,
Privatizing Security: Law, Practice and governance of Private Military and Security Companies (DCAF Occasional
Paper no. 6 2005) 14; Ase Gilje Østensen, Tor Bukk Voll, Russian Use of Private Military and Security
Companies: the implications for European and Norwegian security (FFI-Rapport 18/01300, CMI 2018) 8.
12
4 General legal framework regulating PMSCs
4.1 Introduction
The increasing involvement of PMSCs in situations of armed conflict raises concerns

within the international community. Concerns range from fear of violations of IHL and
IHRL, to States neglecting their obligation to ensure respect for IHL by neglecting to
regulate the activities of these companies. It is clear that an international convention
governing the use of PMSCs is still somewhere in an idealistic and distant future, yet
everything has to start somewhere. The legal community is not turning a blind eye to
PMSCs and the need for the development of a solid legal framework. Throughout the
years, several initiatives can be noticed within an international, regional, national and
self-regulatory context. For example, there have been multiple working groups
established by the United Nations, responsible for multiple reports, the most notable
being (A/HRC/15/25)23 and (A/65/325)24 which include recommendations for the drafting
of a UN Convention regulating PMSCs. Besides that, the use of PMSCs has been called to
the attention of the United Nations Security Council several times.25
There is no specific legal framework to regulate the activities and status of PMSCs. After
all, Treaty and customary IHL does not explicitly refer to PMSCs. However, according to
Nils Melzer “All PMSC-personnel carrying out activities for reasons related to an armed
conflict are bound by International Humanitarian Law and criminally responsible for
serious violations (war crimes,) irrespective of their status”.26 In the absence of a specific
legal regime, some guidelines and tools discussed below will confirm that, most rules are
directly derived from treaty and customary IHL.
23
United Nations Human Rights Council, Report of the Working Group on the use of mercenaries as a means of
violating human rights and impeding the exercise of the right of peoples to self-determination (A/HRC/15/25, 2
July 2010).
24
UN Working Group on the Use of Mercenaries as means of violating human rights and impeding the exercise
of the right of peoples to self-determination (A/65/325, 25 August 2010).
25
Letter dated 18 July 2011 from the Chairman of the Security Council Committee pursuant to resolutions 751
(1992) and 1907 (2009) concerning Somalia and Eritrea Addressed to the President of the Security Council
(UNDOC S/2011/433, 66th Session, 18 July 2011); Letter Dated 11 July 2012 From The Chairman Of The
Security Council Committee Pursuant To Resolutions 751 (1992) and 1907 (2009) Concerning Somalia and
Eritrea Addressed To The President of The Security Council (UNDOC S/2012/544, 67th Session, 13 July 2012);
Letter Dated 12 July 2013 From The Chair of The Security Council Committee Persuant To Resolutions 751
(1992) and 1907 (2009) Concerning Somalia and Eritrea Addressed to the President of the Security Council
(UNDOC S/2013/413, 68th Session, 12 July 2013); Mark Mazzetti, Eric Schmitt, ‘Private Army Formed to Fight
Somali Pirates Leaves Troubled Legacy’ New York Times (New York, 4 October 2012)
<https://www.nytimes.com/2012/10/05/world/africa/private-army-leaves-troubled-legacy-in-
somalia.html?pagewanted=all> accessed 28 April 2019).
26
Nils Melzer, ‘Status of PMSCs under IHL Summary of a presentation’, 35th Round table on Current Issues of
International Humanitarian Law “Private Military and Security Companies (Sanremo, 7 September 2012);
James Cockayne, ‘Private Military and Security Companies’ in Andrew Clapham and Paola Gaeta, The Oxford
Handbook of International Law in Armed Conflict (OUP 2015) 648-655.
13
On a more regional level, some movement in the development of instruments can be
detected. A prime example in this regard is the 2008 PRIV-WAR research project
analyzing and clarifying several questions related to PMSCs.27 On a more formal note,
several members of parliament have raised motions for the adoption of a European
Parliament resolution.28 On the African continent, an increasing interest in the
implications and use of PMSCs can be noticed given the many investigations and
research projects by academics as well as governments.29
Furthermore, the recent national initiatives from several countries all over the world
indicate the growing interest of States trying to control the situation. Unfortunately, it
also shows the reluctance of some States to dispel the ambiguity surrounding PMSCs, for
various reasons.30 The dynamics on a national level are important to assess State
practice and get a clearer insight on the development of legislative instruments. One of
the leading countries in this field is, undoubtedly, Switzerland which initiated the
Montreux Document and the ICoC. The two frameworks are key in regulating and
monitoring the use of PMSCs. However, they also work on domestic legislation to enforce
the use and success of both international instruments.31 Another country important for
the development of legislative initiatives concerning the industry is South Africa as it is
the cradle of the PMSC-industry32 but more importantly it was one of the first African
states to adopt legislation criminalizing mercenary activity.33 There still are deficiencies in
27
Note that the 2008 PRIV-WAR project is EU-funded but is not the direct work of the European Union. The
project was concluded on 28 April 2011. More information can be found on the website <https://priv-
war.eui.eu> accessed 27 May 2019.
28
Committee on Foreign Affairs ‘Motion for a European Parliament Resolution on Private Security Companies’
(European Parliament (2016/2238 (INI)), 17 May 2017) A8-0191/2017; Committee on Foreign Affairs, ‘Draft
Report on human rights concerns in private military and security companies’ (European Parliament
(2018/2154(INI)), 17 July 2018) AFET/8/13888; Anne-Marie Buzatu, European Practices of regulation of PMSCs
and Recommendations for Regulation of PMSCs through International Legal Instruments, (DCAF 2008) 18.
29
Tshepo T. Gwatiwa, ‘Private Military and Security Companies’ policies in Africa: Regional Policy Stasis as
Agency in International Politics’ (2016) 44 (2) South African Journal of Military Studies 68-70; Sabelo
Gumedze, Policy Paper: Regulation of the Private Security Sector in Africa (Institute for Security Studies South
Africa 2008) 5-7, 14-29; Margaret Gichanga, Melanie Roberts, Sabelo Gumedze, Conference Report: The
Involvement of the Private Security Sector in Peacekeeping Missions (Institute for Security Studies, Kenya, 21-
22 July 2010) 5; African Union, ‘Regional Conference on Private Military and Security Companies’ (AU, Addis
Ababa 2015); Anne-Marie Buzatu, European Practices of regulation of PMSCs and Recommendations for
Regulation of PMSCs through International Legal Instruments (DCAF 2008) 18, 75.
30
31
‘Switzerland: Clarifying legal rules regarding Private Military and Security Companies (PMSCs)’ (UN & the rule
of law, 1 May 2009) <https://www.un.org/ruleoflaw/blog/portfolio-items/switzerland-clarifying-legal-rules-
regarding-private-military-and-security-companies-pmscs/> accessed 27 May 2019.
32
David Abrhams, ‘Brief legal commentary on PMSCs in South Africa’ (PSM, 2008)
http://psm.du.edu/media/documents/national_regulations/countries/africa/south_africa/south_africa_legal_co
mmentary_by_david_abrhams_2008-english.pdf accessed 27 May 2019
33
Section 198 (b) and 199, Act 108 of 1996 Constitution of South Africa; L. Juma, J. Tsabora, ‘The south
African defense Review (2012) and Private Military/Security Companies (PMSCs): Heralding A Shift from
Prohibition to Regulation?’ (2010) 16 (4) P.E.R.
<http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400007> accessed 27 May
2019; United Nations Human Rights special procedures, ‘Mercenarism and Private Military and Security
14
domestic legislative frameworks, however, this does not take away from the fact that
further development and discussion concerning this topic is necessary.34
Lastly, self-regulatory initiatives should not be forgotten. The various voluntary codes of
conducts and other initiatives, which will be further elaborated upon below, add another
layer to the legislative process.35 Although, the existence of non-constructive and
adverse codes is a fact, abuse of such codes cannot be excluded. The industry itself
remains an important stakeholder which should be involved as much as possible in this
process.
This chapter will elaborate on the key initiatives that have been introduced over the past
few years and will focus briefly on self-regulation within the industry. It will analyse each
initiative, expose the main flaws and determine its successes based on the
implementation of each initiative. Finally, it will process all findings in some concluding
remarks.
4.2 International Standards regulating PMSCs
4.2.1 The Montreux Document
As previously stated, the Montreux Document is the result of a joint initiative launched
by the Swiss government and the ICRC. This initiative took root in the 1990-1991 Gulf
War during which the United States (U.S.) used a noticeable number of private
contractors.36 These events caught the attention of the Swiss government and the ICRC.
Shortly after, they initiated discussions on the creation of a document on PMSCs and
their activities in armed conflict.37
This document represents the vision of several governments from all over the world.
Knowledge and expertise gathered from industry representatives, academic experts and
Companies: An Overview of the Work Carried out by the Working Group on the use of mercenaries as means of
violating human rights and impeding the exercise of the right of peoples to self-determination’
(HRC/NONE/2018/40) 18.
34
David Abrhams, ‘Brief legal commentary on PMSCs in South Africa’ (PSM, 2008)
http://psm.du.edu/media/documents/national_regulations/countries/africa/south_africa/south_africa_legal_co
mmentary_by_david_abrhams_2008-english.pdf accessed 27 May 2019; L. Juma, J. Tsabora, ‘The south
African defense Review (2012) and Private Military/Security Companies (PMSCs): Heralding A Shift from
Prohibition to Regulation?’ (2010) 16 (4) P.E.R. 37-38
<http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400007> accessed 27 May
2019.
35
Raymond Saner, Private Military and Security Companies: Industry-Led Self-Regulatory Initiatives versus
State-Led Containment Strategies (CCDP 2015) 10-13.
36
Paul Pryce, ‘Making the Most of the Montreux Document’ (Offiziere.ch, 12 May 2018) 3
37
ibid.
15
non-governmental organizations was compiled into what is now known as the Montreux
Document.38 The document can be considered as a cornerstone in the development of
creating a legal framework regulating the use of PMSCs.39 It clarifies the most pertinent
and legal obligations with regard to PMSCs and counters the misconception that PMSCs
operate in a legal void.40 Today, 55 States and 3 international organizations, including 23
European Union member States have declared their support for the Montreux
Document.41 Yet there are countries that currently use or deploy PMSCs in large amounts
that do not support the Montreux Document. Examples include Egypt, Nigeria, Saudi
Arabia, Iran and Russia.42 The slowly increasing number of participating states show that
many are aware of the destabilizing effects PMSCs can have in situations of armed
conflict. Unfortunately, the same number also shows that many countries still don’t
support the document, hence, raising awareness and promoting the Monteux Document
needs to be upheld on a regular basis.43
The Montreux Document provides clarity in questions related to the status of PMSC-
personnel under the 1949 Geneva Conventions, individual accountability for misconduct
in different jurisdictions, and the authorities’ duty to oversee and screen the actions of
firms for potential misconduct. The Montreux Document also formulates a definition on
PMSCs.44
The document does not create any new rules for PMSCs. It only gathers and recalls
existing rules of treaty and customary IHL.45 The Montreux Document is therefore a
useful tool and guide shaped in the form of soft law.46 Undoubtedly, the document is
helpful for governments, the PMSC industry as well as other actors such as NGO’s and
international organizations or any entity or individual relying on services from the PMSC
38
The Montreux Document 4-5
39
Tilman Rodenhäuser & Jonathan Cuénoud, ‘Speaking law to business: 10-year anniversary of the Montreux
Document on PMSCs’ (humanitarian law & policy blog, 17 September 2018) <blogs.icrc.org/law-and-
policy/2018/09/17/speaking-law-business-10-year-anniversary-montreux-document-pmscs/> accessed 15
March 2019
40
ibid.
41
Eric David, Principes de droit des conflict armés (Bruylant 1994) 509; The list of participating states is
frequently updated and can be found don the following website <www.eda.admin.ch/eda/en/home/foreign-
policy/international-law/international-humanitarian-law/private-military-security-companies/participating-
states.html> accessed 27 May 2019.
42
ibid.
43
March 2019.
44
The Montreux Document 9.
45
46
Rebecca DeWinter-Schmitt, ‘International Soft Law Initiatives: The Opportunities and Limitations of the
Montreux Document, ICoC, and Security Operations Management System Standards’ in Helena Torroja, Public
International Law and Human Rights Violations by Private Military and Security Companies (Springer 2017)
105-126.
16
industry. However, it does not cover all questions related to the use of PMSCs. What it
does cover will be discussed in the next two paragraphs.
The Montreux Document can be divided into two parts. The first part recalls the existing
legal rules and obligations towards States, International organizations, PMSCs and PMSC-
personnel. Part one is divided into four chapters; the “Contracting States”, “Territorial
States”, “Home States” and “All other States’. “Contracting States” refer to the situation
where the State hires services provided by PMSCs. Services executed in another State
activate obligations for what is called the “Territorial State”. The Montreux Document
also sets forward obligations for States where PMSCs are incorporated or registered,
referred to as “Home States”. Given the complexity of this division the document also
includes obligations applicable to all States.47
Going through the Monteux Document, four broad sets of obligations can be
distinguished. Depending on whether the State is considered a Home, Contracting or
Territorial State obligations and the extend of those obligations may vary.48 The first
broad obligation applicable to all categories is the prohibition to delegate tasks that IHL
explicitly assigns to States to PMSCs. As stated in the Geneva Conventions, some tasks
are “inherently assigned to States.49 A second obligation entails the obligation to ensure
respect for IHL and IHRL. 50 This means that the State is obliged to adapt proper
measures to make sure PMSCs give effect to IHRL and IHL. Thirdly, States have to
investigate and are required to appropriate, prosecute, extradite or surrender persons in
suspect of having committed international and war crimes.51 The fourth and last
obligation recalls the rules of State responsibility for wrongful acts committed by PMSCs
in case they are integrated into the armed forces of that State.52 Integrated in the State
armed forces refers to the integration of a group or unit put under the command of State
armed forces. It can also refer to the situation in which a PMSC is allowed to exercise
governmental authority to some extend based on a law enacted by that State. A different
47
Statements 18-21, The Montreux Document.
48
Nelleke Van Amstel, Tilman Rodenhäuser, The Montreux Document and the International Code of Conduct,
Understanding the relationship between international initiatives to regulate the global private security industry
(DCAF 2016) 5-6.
49
Statements 2,7 The Montreux Document; Explanatory Comments to the Montreux Document 35.
50
Statements 3, 6, 9, 14, 18, The Montreux Document; Explanatory Comments to the Montreux Document 33-
34.
51
Statements 4, 10, 15, 19, The Montreux Document; Explanatory Comments to the Montreux Document 34.
52
Statements 7-8, The Montreux Document; Explanatory Comments to the Montreux Document 35.
17
scenario could be where the State instructs the PMSC or clearly exercises direct control
over the PMSC.53
The second part of the Montreux Document focuses on the strengthening of the
framework on domestic level. The second part functions more like a guide based on good
practices for States on how to ensure respect for IHL and IHRL and how States can
regulate PMSCs more effectively within their own territory. The scope of the second part
is much broader since its applicability goes beyond situations of armed conflict and is
perceived as less binding than the first part which is directly derived from IHL. Going
through the second part, there are four categories of guidelines. Firstly, it recommends
that States should determine which services PMSCs are or are not permitted to
perform.54 A second guideline encourages States to establish rules on licensing and
authorization of PMSCs for the services that they provide.55 A third guideline invites
States to define criteria for PMSCs to be eligible to bid for a contract or to perform
services.56 A last category recommends the establishment of a monitoring and oversight
mechanism that is fit for the purpose of increasing accountability for the actions
performed by PMSCs.57
The most notable statements referring to the applicability of the principle of distinction
and the legal status of PMSCs can be found in statement 24 which states that the status
of PMSC personnel is regulated by IHL.58
As stated in the preface, the question on the legitimacy of the use of PMSCs it does not
fall within the scope of this research. This question is also not answered by the Montreux
Document. The reasoning behind this is that PMSCs de facto exist and are used in
situations of armed conflict. Therefore, the creators of the Montreux Document decided
to focus on the humanitarian and more practical aspects related to PMSCs.
The PMSC industry is emerging and evolving rapidly therefore, this initiative should be as
dynamic as the subject that it is trying to regulate. Its participants remain active on the
further development of the regulatory framework for PMSCs. In this regard, the
53
Art. 4-8, 11, International Law Commission, Draft Articles on Responsibility of States for Internationally
Wrongful Acts (November 2001); James Cockayne, ‘Private Military and Security Companies’ in Andrew
Clapham and Paola Gaeta, The Oxford Handbook of International Law in Armed Conflict (OUP 2015) 632-640.
54
Statements A.I., B.I., C.I., The Montreux Document.
55
Statements A.II., B.II., C.II., The Montreux Document.
56
Statements A.III., A.IV., B.III., B.IV., C.III., C.IV., The Montreux Document.
57
Statements A.V., B.V., C.V., The Montreux Document.
58
Statement 24, The Montreux Document; Explanatory Comment to the Montreux Document 36.
18
participants established “the Montreux Document Forum” in 2014 for the purpose of
facilitating national implementation, coordinating the enlargement of support for the
document.59 The Forum tries to strengthen dialogue, draw conclusions from good
practices and challenges related to the regulation of PMSCs. Most importantly, it provides
States with a platform that has guidance on how to regulate PMSCs at the level of
domestic legislation and how to ensure responsible contracting.60 During the last plenary
meeting Mr. Carbonnier, ICRCs Vice President, emphasized the notable successes of the
Montreux Document and addressed the clarifying role of the Montreux Document in the
applicable regime to PMSCs. However, there still is a need for more legislation and
implementation at a domestic level. Support for the Montreux Document needs to be
broadened and its usefulness outside of situations of armed conflict should be explored
too.61 Mrs. White, Garda World International Protective Services’ General Counsel, shares
a similar view and recommends engaging directly with and educate the customers to
ensure that they demand security services that respect International Law. In her opinion,
it should be stressed that PMSCs have to become a member to the ICoC and ICoCA and
its monitoring and reporting mechanisms.62
As can be derived from the above and from the conclusions taken at the fourth plenary
meeting it is clear that the Montreux Document is a promising instrument, yet it still
faces many challenges in terms of implementation.63
4.2.2 The International Code of Conduct Association

After the creation of the Montreux Document awareness grew that the actor itself,
PMSCs, should be directly involved in the efforts to regulate this particular industry. This
led to a second branch of the Swiss initiative tree of regulating PMSCs, resulting in the
International Code of Conduct for Private Security Service Providers, also known as the
Code or the Code of Conduct (“ICoC”). 64 Once more, the Swiss government took a
leading role in this process. However, various stakeholders were indispensable for the
creation, further development and implementation of this instrument. Stakeholders
59
Website of the Montreux Document Forum <https://www.mdforum.ch> accessed 27 May 2019.
60
March 2019.
61
Chairs Summary: Fourth plenary meeting of the Montreux Document Forum (MDF) 6-7 June 2018, Geneva
(Montreux Document Forum, 15 October 2018) 1.
62
(Montreux Document Forum, 15 October 2018) 1-2
63
(Montreux Document Forum, 15 October 2018) 4.
64
The International Code of Conduct for Private Security Service Providers of 9 November 2010
<www.icoca.ch/sites/all/themes/icoca/assets/icoc_english3.pdf> accessed 27 May 2019.
19
include the PMSC-industry, States and civil society organizations. The ICoC was finalized
in September 2010 during a conference held by the Swiss government, the Geneva
Academy of IHL and Human Rights and the Geneva Centre for Democratic Control of
Armed Forces.65
The ICoC provides a set of principles for private security providers and reiterates the
obligations of private security providers in line with IHRL and IHL. Besides that, it created
a mechanism for the oversight of this industry which is beneficial in terms of
implementation of the framework and increases accountability.66
PMSCs often operate in complex environments which complicates the determination of

the applicable law. The territorial State of the PMSCs often finds itself with no means to
regulate their operations abroad. Therefore, the ICoC’s scope of application was designed
as broad as possible to cover a wide range of complex situations. More specifically, the
ICoC’s scope of application covers “complex security environments” which is broadly
defined as situations of unrest or instability or recovering from such situations, situations
caused by natural disaster, situations of armed conflicts, situations where the rule of law
is threatened and in which the capacity of the State authority to handle the situations is
diminished, limited or non-existent.67
The ICoC started as a small initiative. Soon, over 700 entities signed the code of
conduct.68 Yet, since the ICoCA is no longer recognizing the signatory status, only 124
are considered as an actual member. In general, the ICoC has the support of PMSCs,
several States, civil society organizations and, indirectly, International Organizations. An
example of indirect support is the requirement of membership to the ICoC to be hired by
United Nations agencies69 or States.70
65
‘Private Military and Security Companies: Montreux Document participants Forum to continue working on
implementation’ (2014) <https://www.admin.ch/gov/en/start/dokumentation/medienmitteilungen.msg-id-
55689.html> accessed 14 April 2019.
66
The International Code of Conduct for Private Security Service Providers’ Association, Articles of Association
<www.icoca.ch/en/articles_of_association#article-1-name-and-registered-office> accessed 27 May 2019.
67
Section B. The International Code of Conduct for Private Security Service Providers of 9 November 2010;
(DCAF 2016) 7-10.
68
Signatory information of ICoC can be found on the following website
<https://www.icoca.ch/en/membership> accessed 27 May 2019.
69
United Nations Security Management System, Security Management Operations Manual: Guidelines on the
Use of Armed Security Services from Private Security Companies (UNDSS, 8 November 2012)
<https://www.ohchr.org/Documents/Issues/Mercenaries/WG/StudyPMSC/UNSecurityPolicyManual.pdf>
accessed 28 May 2019.
70
—, Tätigkeitsbericht 2017 zur Umsetzung des Bundesgesetzes über die im Ausland erbrachten private
Sicherheitsdienstleistungen 1 Januar 2017- 31 Dezember 2017 (Schweizerische Eidgenössisches Departement
für auswärtige Angelegenheiten EDA, 11 April 2018).
20
The ICoC is composed out of two tracks. The first one includes the core human rights
principles such as, the prohibition of torture, the prohibition on human trafficking, rules
on the use of force and rules on detention. The second track outlines policy and
management rules. These entail rules on vetting and training of personnel, weapons
management and grievance procedures. Together, these rules outline corporate good
practices.71 These rules give voice to a clear public commitment to implement and
operate in accordance with these rules. More precisely, the ICoC requires PMSCs to
comply with the provisions of the ICoC and to include the provisions of this document in
contracts with their personnel and subcontractors.72
Shortly after the introduction of the ICoC, stakeholders initiated the drafting of a text on
an oversight mechanism with the purpose of monitoring the implementation of and the
compliance with the ICoC.73 This mechanism functions through a board of 12 people,
where representatives of the industry, civil society organizations and governments are
equally represented. However, the mechanism does not replace but only complements
national legislation. The ICoCA has three core tasks which are, certifying, monitoring and
handling complaints and alleged violations of the ICoC. The first task includes the
certification of companies which entails checking whether the PMSCs policy meets the
requirements set forward by the ICoC. The second task entails monitoring the
compliance of these companies with the ICoC through reporting to the ICoC Association
on the companies’ performance and by gathering information from public and other
sources. Lastly, the third task includes dealing with complaints and alleged violations of
the ICoC. Such may include the lack of or underdeveloped grievance mechanisms of
PMSCs, meaning that mechanisms are not accessible, unfair or not offering effective
remedies.
<https://www.admin.ch/gov/de/start/dokumentation/medienmitteilungen.msg-id-70379.html> accessed 28
May 2019.
71
(DCAF 2016) 7-10.
72
(DCAF 2016) 7-10.
73
Press release by the Swiss government
<http://www.eda.admin.ch/eda/en/home/recent/media/single.html?id=47889> accessed 15 April 2019;
(DCAF 2016) 7-10.
21
4.3 Self-regulation in the PMSC-Industry
Self-regulation is often defined as the process whereby members of an industry, trade or

sector of the economy monitor their own adherence to legal, ethical, or safety standards,
rather than have an outside, independent agency such as a third-party entity or
government enforce those standards.74
Self-regulation in the PMSC-industry is different from this description because it relies on

both private regulation as well as a mixed form of private-public regulation.75 This can
also be described as co-regulation, which entails that the PMSC relies on self-regulations
but at the same time is monitored by a governmental authority.76 With this in mind, self-
regulation can be divided into three categories. Multi-stakeholder initiatives, initiatives
from industry associations and company codes of conduct. 77 The multi-stakeholder
initiatives such as the Montreux Document and the ICoC are well-known and already
discussed above.
Another category of Self-regulation is those developed by industry associations.78 In

early stages, such associations had limited functions as they served more as a platform
for dialogue. However, its role grew over the past few years with the establishment of
codes of conduct.79 Even though, these instruments were not binding, they have set the
tone regarding moral standards and developed guidelines on how the industry should
behave.80 Besides this, some industry associations contributed well to the development
of multi-stakeholder initiatives. Examples of such industry associations are the
International Stability Operations Association (ISOA) 81 and the British Association of
Private Security Companies (BAPSC) 82. The ISOA has developed its own code of conduct
for private security companies. These codes are based on existing internal and
international law which the industry should respect. Besides that, it also recalls several
74
https://dictionary.cambridge.org/dictionary/english/self-regulation.
75
Daphné Richemond-Barak, ‘Can Self-Regulation Work? Lessons from the Private 2001, Security and Military
Industry’ (2014) 35 (4) Mich. J. Int’L L. 776-788.
76
Virginea Haufler, A Public Role for the Private Sector: Industry Self-Regulation in a Global Economy (Carnegie
Endowment for International Peace, Washington 2001) 112; Ian Ayres, John Braithwaite, Responsive
regulation: Transcending the Deregulation Debate (OUP 1992) 102.
77
78
79
Christine Bakker and Mirko Sossai, Multilevel Regulation of Military and Security Contractors (Hart publishing
2012) 1-7.
80
ibid.
81
Detailed information can be found on the website of International Stability Operations Association (ISOA)
<https://stability-operations.org> accessed 27 May 2019.
82
Detailed information can be found on the website of The British Association of Private Security Companies
(BAPSC) <http://www.bapsc.org.uk> accessed 27 May 2019.
22
soft law documents such as the Montreux Document and the ICoC. 83 The downside of
industry associations is that they often lack mechanisms to deal with non-compliance.84
The purest form of self-regulation is the regulation at the level of the companies.85
Companies will often establish their own codes of conduct, sometimes referred by PMSCs
as codes of ethics. Most codes of conduct follow the baseline of what is recommended by
instruments at the multi-stakeholder initiatives.86 Yet, these company codes need to be
read carefully. They may give the impression that the PMSC operates by a set of
standards while in reality, it performs activities in contradiction with those standards.87
However, this does not mean that company codes cannot be effective or constructive.
4.4 Conclusion
The lack of effective oversight and accountability remains a challenge for most
instruments as legislation is extremely dependable of the State for its implementation.
After all, the State is the main enforcer of those laws within its own territory.
Unfortunately, the increasing cross border involvement of the PMSC-industry often
creates the possibility for them to escape the enforcement of domestic laws.88 Future
tools and regulation must adapt to this and try to close these gaps in terms of
accountability and remedies for the victims. Adapting legislation with extraterritorial
applicability is a favorable method to increase accountability and oversight since PMSCs
often operate in complex environments where there is a lack of the rule of law and
governmental institutions are weak. Within the context of State responsibility and the
responsibility of international organizations. States still have a weak legal responsibility
in regard to the functions they entrust to PMSCs and the behavior of PMSC-personnel.89
Although the question on which functions can or cannot be delegated to PMSCs is
frequently addressed and included in the last international standards on regulating
PMSCS, the notion “Inherently Governmental Functions” remains rather ambiguous.
83
International Stability Operations Association ISOA Code of Conduct (version 13, 20 October 2011).
84
Industry’ (2014) 35 (4) Mich. J. Int’L L. 773-780; Renée De Nevers, ‘The Effectiveness of Self-Regulation by the
Private Military and Security Industry’ (2010) 30 (2) Journal of Public Policy 219, 219-240; Renée De Nevers,
‘(Self) Regulating War?: Voluntary Regulation and the Private Security Industry’ (2009) 18 (3) Security Studies
479, 479-516.
85
86
ibid.
87
Renée De Nevers, ‘(Self) Regulating War?: Voluntary Regulation and the Private Security Industry’ (2009) 18
(3) Security Studies 479, 510-513.
88
Anne-Marie Buzatu, Benjamin S. Buckland, Private Military & Security Companies: future challenges in
Security Governance (DCAF 2015) 18.
89
23
Legislation should therefore, avoid limiting the activities of PMSCs on the sole basis of
this notion, unless the notion is clearly, concisely and precisely defined.
Furthermore, the implementation of existing soft law instruments remains one of the
biggest challenges. Most tools include recommendations for the implementation thereof,
yet this happens at a rather slow pace because many states need to draft legislation at
domestic level and especially invest in licensing and monitoring systems. Unfortunately,
adapting a proper licensing and monitoring regime with a sufficient capacity and
resources is time and money consuming.90
90
José L. Goméz del Prado, ‘A U.N. Convention to regulate PMSCs?’ (2012) 31 (3) Criminal Justice Ethics 262,
271-272.
24
5 The principle of distinction and the status of PMSC-
Personnel under International Humanitarian Law
5.1 Introduction
This chapter will elaborate on the principle of distinction and the legal status of PMSC-
personnel under IHL. IHL uses the principle of distinction to categorize every actor on the
battlefield into legitimate targets and protected persons.91 In other words, it
distinguishes between civilians and combatants.92 This principle may seem simple at first
but given today’s realities the common formulation doesn’t seem to be enough to classify
each actor. However, it is one of the most basic and important principles in the law of
armed conflict and serves an important purpose in the conduct of hostilities. This
principle is confirmed as a rule of customary IHL by the International Criminal Court and
by the ICRC.93 The International Law Commission went a little further in this regard,
stating that the principle of distinction should be regarded as a jus cogens norm. It can
already be confirmed that IHL does not have a particular status for corporate actors,
such as PMSCs.94 Hence, the question is how this principle would be applied, towards this
new non-State actor on the battlefield and what is their legal status.95 That PMSC-
personnel can almost never qualify as mercenaries because of the narrowing criteria set
up by the mercenary conventions has already been discussed extensively by legal
doctrine and will not be further elaborated upon.96
91
Nils Melzer, ‘The Principle of Distinction Between Civilians and Combatants’ in Andrew Clapham and Paola
Gaeta, The Oxford Handbook of International Law in Armed Conflict (OUP 2015) 296.
92
Art. 48, 51, 52 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts of 8 June 1977 (signed 12 December 1977, entered into
force 7 December 1978) 1125 UNTS 3 (hereafter “Additional Protocol I”); art. 13 Protocol Additional to the
Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed
Conflicts of 8 June 1977 (signed 12 December 1977, entered into force 7 December 1978) 1125 UNTS 609
(hereafter “Additional Protocol II”); J.-M. Henckaerts and L. Doswald-Beck, Customary International
Humanitarian Law: Vol. I. (CUP 2005) 3. (hereafter “ICRC Customary International Humanitarian Law Vol. I”);
Eric David, Principes de droit des conflict armés (Bruylant 1994) 275-289.
93
Rule 1 ICRC Customary International Humanitarian Law Vol. I; §78, Legality of the Threat or Use of Nuclear
Weapons, (Advisory Opinion) 8 July 1996 I.C.J. Reports 1996, 229.
94
Nils Melzer, ‘Status of PMSCs under IHL Summary of a presentation’, 35th Round table on Current Issues of
International Humanitarian Law “Private Military and Security Companies (Sanremo, 7 September 2012).
95
§14, United Nations Human Rights Council, Report of the Working Group on the use of mercenaries as a
means of violating human rights and impeding the exercise of the right of peoples to self-determination
(A/HRC/15/25, 2 July 2010); Lindsey Cameron, ‘Private military companies: their status under international
humanitarian law and its impact on their regulation’ (2006) 88 (863) International Review of the Red cross 573.
96
impact on their regulation’ (2006) 88 (863) International Review of the Red cross 573.
25
5.2 The principle of distinction in International Armed Conflicts
The principle of distinction as applied in international armed conflicts is enshrined in Rule

1 of Customary IHL97 and codified in Additional Protocol I98 and the Rome Statute of the
International Criminal Court99. The principle clearly states that a distinction should be
made between civilians and combatants as well as civilian and military objects. Yet, in
practise targeting decisions based on this description are rather difficult as treaty and
Customary IHL actually protect much more categories of persons in the situation of
armed conflict. Namely, besides civilians100 protection from direct attack is also provided
for medical, religious, civil defence personnel from the armed forces101 and all persons
hors de combat.102 These categories of people do not directly participate in hostilities and
therefore it is logical that such persons are protected from direct attack.103 However, this
protection can be lost in case protected persons take direct part in hostilities. The
principle of distinction must also be applied towards objects.104 However, this falls
outside of the scope of this research and will not be discussed.
Most rules in the context of an International Armed Conflict can be found in Additional
Protocol I of 1977. 105 However, for a broader understanding and to avoid misconceptions
it is important to look at older rules as well. In this regard, the Hague Regulations of
1907 already had a chapter devoted to “the qualifications of belligerents” which included
the rules applicable to “armies”, “militia and volunteer corps” on the condition that they
fulfilled all four conditions.106 Namely, being under a responsible command, wear fixed
and recognizable distinctive emblems, carrying arms openly and comply with the rules
and customs of war. 107 The provisions categorize the actors well yet remain rather silent
on the criteria upon which a person can be identified as “belonging to” the armed forces
of a party to the conflict.108 Similar provisions can be found in the Geneva
97
Rule 1 ICRC Customary International Humanitarian Law Vol. I.
98
Art. 48, 50-51 Additional Protocol I.
99
Art. 8(2)(b)(i) Rome Statute of the International Criminal Court.
100
Art. 51 Additional Protocol I; Rule 1 ICRC Customary International Humanitarian Law Vol. I.
101
Art. 24, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field (signed 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 (hereafter “GC I”); art.
36, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea (signed 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (hereafter “GC
II”) , Rule 25, 27, ICRC Customary International Humanitarian Law Vol. I.
102
Art. 41 (1) and (2) Additional Protocol I; Rule 47 ICRC Customary International Humanitarian Law Vol. I.
103
Rule 1 ICRC Customary International Humanitarian Law Vol. I.
104
ibid.
105
Additional Protocol I.
106
Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the
Laws and Customs of War on Land, The Hague, 18 October 1907 (hereafter “The Hague Convention 1907”).
107
Art. 1-2, The Hague Convention 1907; The Hague Convention also included participants in a levée en masse
as belligerents, if they carry arms openly and respect the laws and customs of war.
108
Katherine Del Mar, ‘The Requirement of ‘Belonging’ under International Humanitarian Law’ (2010) 21 (1)
EJIL 105-124.
26
Conventions.109 It should be noted that the Geneva Conventions focus on the protection
of persons fallen into the hands of the adversary. In particular, those who are wounded,
sick and shipwrecked110, prisoners of war111 and all other persons in the hands of a party
to the conflict of which they are not nationals112.113 Unfortunately, the terms “armed
forces” and “civilians” as mentioned in the titles of the Geneva Conventions don’t have a
clear personal scope of application that could match the following categories; “armed
forces”, “combatants”, or “civilians”.114
The first three Geneva Conventions provide protection and Prisoner of War status (POW-
Status), not only for combatants hors de combat, but also for medical and religious
personnel and civilians accompanying the armed forces but who are not always part of
those forces. Those participating in a levée en masse can also be qualified for the
protection and POW-status.115 According to the ICRC, article 4 GC III must be read
carefully. The misconception that POW-status “implies” combatant status is a
misconception often made.116 It is correct to assume that some categories might qualify
for POW-status but that does not necessarily provide them with combatant privilege,
giving them the right to participate in hostilities, nor does it make them part of the
armed forces.117 Above of this, article 4 GC III refers to the entitlement of POW-status
and is less concerned with the principle of distinction during the conduct of hostilities.
Another argument regarding the non-accuracy of article 4 GC III for the purpose of the
application of the principle of distinction is that it refers to regular armed forces as
regulated by domestic legislation.118 Domestic legislation is usually drafted for purposes
of jurisdiction and administrative matters rather than the application of the principle of
distinction.119 It is therefore better to rely on universally recognized principles of IHL
rather than domestic legislation. It seems to be the case that the Geneva Conventions
109
Art. 4, Geneva Convention relative to the Treatment of Prisoners of War (signed 12 August 1949, entered
into force 21 October 1950) 75 UNTS 135 (hereafter “GC III”).
110
GC I & II.
111
GC III.
112
Geneva Convention relative to the Protection of Civilian Persons in Time of War (signed 12 August 1949,
entered into force 21 October 1950) 75 UNTS 287 (hereafter “GC IV”).
113
Ratner Steven R. ‘Geneva Conventions’ (2008) 165 Foreign Policy 26-32
<http://www.jstor.org/stable/25462268> accessed 20 April 2019.
114
115
ibid.
116
Art. 4 GC III; Rule 1 ICRC Customary International Law Vol.1
117
Yves Sandoz et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949 (ICRC 1986) (hereafter Commentary to Additional Protocol I and II”) §1677.
118
119
ibid 296.
27
are a not very helpful for the purpose of the principle of distinction as it does not specify
the terms “armed forces”, “combatants” or “civilians”. 120
5.2.1 Armed Forces and Combatant Status

A definition of armed forces is provided in article 43 (1) of Additional Protocol I. 121
according to the text of the article, armed forces consist of all organised armed
personnel. Both regular and irregular personnel are included in the notion “armed
forces”. Irregular armed forces refer to organized resistance movements and other militia
or volunteer corps as long as they operate under a command responsible to that party.
The reasoning behind this is based on principles of general international law as these
actors engage in hostilities on behalf or as organs of the belligerent State.122 In this
regard, the recognition of a government as legitimate by the adversary is not a
necessary condition.
However, the fulfilment of the four conditions enshrined in article 43 (1) Additional
Protocol I are defining elements for the entitlement of POW-status but must not be met
to be qualified as part of the “armed forces” which is used to distinguish them from the
civilian population. To fall within the scope of “armed forces” two conditions must be
met. (1) There must be an organized armed force, unit or group (2) under a command
responsible to a party to the conflict.123 The obligation of article 43 (3) Additional Protocol
I to inform the other parties in case they incorporate paramilitary or other forces into
their armed forces will not change the fact that those forces will become part of the
armed forces as provided by IHL however, it will constitute a violation of IHL.124
Within this context, PMSC-personnel exercising a combat function, hence directly

participating in hostilities on behalf of one of the parties to the conflict, but who do not
fall under the scope of the mercenary conventions would qualify as members of the
armed forces. Meaning that in rare cases they could be entitled to POW-status and
combatant privilege if the requirements are met.125 However, those private actors who
120
Avril McDonald, Background Document Working Sessions VIII and IX: Individual Contractors and Civilian
Employees (Third Expert Meeting on Direct Participation in Hostilities under International Humanitarian Law,
Geneva, 23-25 October 2005) 6.
121
The definition was adopted by consensus at the Diplomatic Conference of 1974 to 1977 and has become part
of customary international law see Rule 4, 14, ICRC Customary International Humanitarian Law, Vol.I.
122
Dieter Fleck, The handbook of Humanitarian Law in Armed Conflicts (OUP 1995) §305.
123
Rule 4, 15 ICRC Customary International Humanitarian Law Vol. I; Nils Melzer, ‘The Principle of Distinction
Between Civilians and Combatants’ in Andrew Clapham and Paola Gaeta, The Oxford Handbook of International
Law in Armed Conflict (OUP 2015) 300-307.
124
Rule 4, 14, ICRC Customary International Humanitarian Law Vol. I; Art. 43 (3) Additional Protocol I.
125
impact on their regulation’ (2006) 88 (863) International Review of the Red cross 583, 573; Francioni
28
are not hired to exercise a combat function hence, not falling within the scope of armed
forces must be regarded as civilians. If the State formally authorizes them to accompany
the armed forces, they could be entitled to POW-status if captured by the adversary but
this will not provide them with combatant privilege.126 The status PMSC-personnel should
be determined on an individual case-by-case basis taking into account the nature and
circumstances of the functions in which they are involved.127 “Armed forces” within the
meaning of IHL seems to include all organized armed actors who conduct hostilities on
behalf of one of the parties to the conflict.128 Categorizing PMSC-personnel as part of the
armed forces means tying them to the State armed forces or to organized resistance
movements and other militia or volunteer corps. Both possibilities will be discussed
below.129
5.2.1.1 PMSC employees belonging to the State Armed Forces
The first possibility is tying the PMSC employee to the State armed forces will not only
qualify the PMSC-personnel as a military target, it could also provide the person with
combatant privilege and POW-status. However, IHL does not specify how several actors
should be incorporated into the State armed forces.130
According to the Montreux Document, PMSC-personnel must be formally incorporated

into the armed forces.131 The ICRC shared a similar opinion in their study on Customary
IHL where they state that the “incorporation of paramilitary or armed law enforcement
agencies into the armed forces is usually carried out through a formal act”.132
However, the ICRC was right to state that in the absence of such formal act, the status of
such groups should be judged on a factual basis.133 Especially in the context of applying
Francesco, ‘Private Military contractors and International Law: Symposium’ (2008) 19 (5) EJIL 961-1074; Eric
David, Principes de droit des conflict armés (Bruylant 1994) 510-511.
126
Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International
Humanitarian Law (ICRC 2009) 37-40.
127
Statement 24, the Montreux Document.
128
Gaeta, The Oxford Handbook of International Law in Armed Conflict (OUP 2015) 304-305.
129
Sassòli M, Antoine A, Bouvier A Q, How does Law Protect in War Vol. I (ICRC 2011) 846-848.
130
Humanitarian Law (ICRC 2009) 25, 31; Avril McDonald, Background Document Working Sessions VIII and IX:
Individual Contractors and Civilian Employees (Third Expert Meeting on Direct Participation in Hostilities under
International Humanitarian Law, Geneva, 23-25 October 2005) 6.
131
E, 26, b) the Montreux Document; Explanatory comments, the Montreux Document p.36.; Lindsey Cameron,
‘Private military companies: their status under international humanitarian law and its impact on their regulation’
(2006) 88 (863) International Review of the Red cross 583.
132
Rule 4, ICRC International Humanitarian Law Vol. I.
133
29
the principle of distinction such approach is more favourable. This position is also
supported by Louise Doswald-Beck as she comments on Mike Schmitt’s paper
“membership in armed forces does not depend on the technicalities of national law.
Decisive are the requirements of international law and whom these persons actually
appear to fight for in the eyes of the enemy. In terms of GC III, if Article 4 A [1] GC III
does not cover these contractors, Article 4 A [2] GC III probably would. The need for
formal uniforms is less important today and contractors are still sufficiently
distinguishable by their equipment and outfits. As all other criteria are fulfilled, they can
be attacked.”134 This does not exclude that article 43 Additional Protocol could imply an
incorporation at national level.135 Even if a functional approach would be approved it
would bring many unanswered questions, such as what criteria would be the basis of
such functional approach. It does not seem to be fair nor just to rely solely on a formal
incorporation into the armed forces in case a State clearly incorporates PMSCs on a
factual basis. However, a factual approach without specified criteria could broaden the
scope of application on the rules providing combatant privilege and POW-status.
Practice shows that States are often reluctant to incorporate PMSC formally. Their
services are usually used in a context of privatization. Meaning, PMSCs are often hired to
act independently from the State armed forces which complicates things to qualify them
as belonging to the State armed forces. 136 Above of this, the State relies on a company
that contracts individuals. This means that there is not always a direct link between the
customer and the actual contractor. This makes it difficult to consider the employee as a
member of the forces of that State.137 Cases of formal and factual incorporation remain
rare. In the rare cases where the PMSC would be formally incorporated into the armed
forces, they could obtain combatant privilege and POW-status.138
134
ibid 2.
135
ibid 6.
136
Emily Crawford, Identifying the Enemy: Civilian Participation in Armed conflict, (OUP 2015) 157-160;
Examples of formal incorporation are Executive Outcomes incorporated into the State armed forces of Sierra
Leone during the civil war 1995-1996 and Sandline which was formally incorporated into the State armed forces
of Papua New Guinea in the year of 1997 see in this regard the Agreement For The Provision Of Military
Assistance Dated 31 Day Of January 1997 Between The Independent State Of Papua New Guinea And Sandline
International <http://psm.du.edu/media/documents/industry_initiatives/contracts/industry_contract_sandline-
papua-new-guinea.pdf> accessed 20 April 2019 and Hannah Tonkin, State Control over Private Military and
Security Companies in Armed Conflict, (CUP 2011) 85.
137
138
Explanatory Comment Montreux Document 36.
30
5.2.1.2 PMSC employees belonging to Organized Resistance Movements
and other Militia or Volunteer Corps
The second possibility entails the membership to organized resistance movements and
other militia or volunteer corps. For the principle of distinction, it is clear that members
of militias or other volunteer corps belonging to a State party are military targets. The
key question is how this kind of membership can be determined.139 According to the
Montreux Document, membership to militias or other volunteer corps should be regarded
in the sense of article 4 A (2) GC III. 140 This article entails the provisions for POW-status
and provides specific criteria to obtain combatant status. Firstly, the militia or volunteer
corps must “belong to” a party to the conflict. Secondly, there are four cumulative
criteria that must be fulfilled. (1) the members must be commanded by a person that is
responsible for his subordinates. (2) Members must have a fixed distinctive sign
recognizable at a distance. (3) Members must carry their arms openly. (4) Operations
must be performed in accordance with the laws and customs of war.141
This assessment can be divided into two parts. The first part entails the membership of
the organized armed group to a party to the conflict, which is important for the principle
of distinction.142 It is unclear how the notion “belonging to” must be interpreted in the
context of IHL. Some argue that the State “must accept that a group fights on its
behalf”.143
A second part sets four conditions that the group as a whole must fulfil. However, these
conditions seem to imply constitutive elements to obtain combatant privilege and POW-
status but, as stated previously, are less important for the application of the principle of
distinction.144 After all, such assessment requires an ex post and case-by-case exercise
for each actor.145 Such extensive verification during the conduct of hostilities would, in
reality, complicate the applicability of this principle.
Besides the principle of distinction, obtaining combatant status is hardly possible based
on these criteria. According to Michael Schmitt, many private contractors don’t have
139
Humanitarian Law (ICRC 2009) 31.
140
Explanatory Comment Montreux Document 36.
141
Art. 4 GC III.
142
143
Shannon Bosch, ‘Private Security Contractors and International Humanitarian Law: a skirmish for recognition
in international armed conflicts’ (2007) 16 (4) African Security Review 34, 38.
144
145
Jens David Ohlin, ‘The Combatant’s Privilege in Asymmetric and Covert Conflicts’ (2015) 40 The Yale Journal
of International Law 335, 379-382.
31
uniforms and don’t fall under command, responsible for those contractors. Schmitt also
mentioned that PMSCs will often lack the independence from a State to be considered as
militia or a volunteer corps while PMSC with a greater independence could probably not
be considered as companies that “belong” to a party to a conflict.146 Schmitt does not say
that PMSCs could never obtain combatant status based on article 4 A (2) GC III, but
states that the majority of PMSCs would not.147
Looking at article 4 A (2) GC III from a teleological perspective, the article was created
to allow for partisans in the Second World War to qualify for prisoner-of-war status.148
The article created an incentive for resistance movements to comply with IHL. In that
sense it contradicts the view that PMSCs could be qualified as combatants.149 The
mercenary conventions, which were established three decades after the Geneva
Conventions and which aimed at prohibiting the use of exactly such actors, strengthen
this teleological interpretation.
5.2.2 Civilians
If PMSC-personnel do not qualify for one of the above categories, they must be
considered to be civilians. In this regard, the notion of direct participation in hostilities is
crucial to assess if the person in question may be targeted. The concept “civilian” is
negatively defined and IHL does not provide further guidance on this concept. PMSC-
personnel who do not exercise a combat function must be considered as civilians and are
protected from direct attack as civilians do not have the right to directly participate in
hostilities.150 If civilians do so, they will lose their protection. The notion of Direct
participation in hostilities is not properly defined in treaty and Customary IHL. This is
possibly due to the fact that this is a dynamic concept. The interpretive guidance on the
notion of direct participation in hostilities, developed by the ICRC, defines direct
participation in hostilities as “acts of war which by their nature or purpose are likely to
cause actual harm to the personnel and equipment of the enemy armed forces”.151 If all
activities of PMSCs would be considered as direct participation in hostilities, it would
broaden the scope of targetable people. A clarifying example in this regard is article 4A
146
Michael Schmitt, ‘Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian
Employees’ (2005) 5 Chicago Journal of International Law 511.
147
ibid.
148
Jean S. Pictet, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea: Commentary (ICRC 1952) 52; The Law of Armed Conflict and the Use of
Force: The Max Planck Encyclopedia of Public International Law (first edn, 2017) 2 para. 28.
149
Lindsey Cameron and Vincent Chetail, Privatizing War: Private Military and Security Companies under Public
International Law (CUP 2013) 407.
150
impact on their regulation’ (2006) 88 (863) International Review of the Red cross 583, 587-593.
151
Commentary to Additional Protocol I and II, para. 3.
32
(4) GC III which grants civilian logistics personnel prisoner-of-war status but does not
give them the right to exercise combat functions unless in the case of self-defence.
Another example is the indirect participation in hostilities which merely support the
general war effort. In that case, persons do not lose their protection. Based on the
principle of distinction, such persons should be regarded as civilians but in case of being
captured by the adversary they can qualify for POW-status.
Direct participation in hostilities has a few important elements. “Participation” and

“hostilities”. The concept of participation refers to the individual involvement of a civilian
in hostilities. Hostilities are defined as the means and methods of warfare available to the
parties to an armed conflict. Based on the quality and degree of such involvement, the
participation in hostilities can be qualified as “direct” or “indirect”. The distinction
between direct and indirect is important as not all acts can be assumed as helping the
belligerents. Indirect participation will usually result in a contribution to the general war
effort and will not lead to the loss of protection.152
The ICRCs Interpretive Guidance sets up guidelines to determine whether a civilian is

taking active part in hostilities or not. The guidelines describe Direct Participation in
Hostilities as “specific acts designed to support a belligerent party by harming its
enemies, either by directly causing military harm or, alternatively, by directly inflicting
death, injury or destruction on protected persons or objects”. To determine this the
Guidance uses three cumulative criteria. There must be a certain threshold of harm, the
act and the expected harm must have a direct causation and the relation between the act
and the hostilities between parties constitute the requirement of a belligerent nexus.153
Besides that, there are other difficulties with qualifying PMSC-personnel as civilians. For
instance, article 49 §1 Additional Protocol 1 clarifies that IHL makes no clear distinction
between offensive and defensive attacks as it defines “attacks” as “acts of violence
against the adversary, whether in offence or in defence.” Hence, in case a PMSC engages
in a fight with a party to the conflict they could be considered as directly participating in
hostilities even if the employee is acting in self-defence. Another problem exists in the
situation where PMSC-personnel are defending civilian objects. As there is no clear
definition of civilian and military objects, it complicates the qualification of PMSC-
152
Gaeta, The Oxford Handbook of International Law in Armed Conflict (OUP 2015) 325-328; Lindsey Cameron,
‘Private military companies: their status under international humanitarian law and its impact on their regulation’
(2006) 88 (863) International Review of the Red cross 583, 587-593
153
33
personnel as civilians directly participating in hostilities.154 Civilian objects can become
military objects based on the nature, location, purpose or use of the object. It is
questionable how the notion of direct participation in hostilities would be applied in case
a PMSC would defend an object that gets a military status during the conflict.
According to article 4 A (4) GC III there is a category of civilians accompanying the

armed forces. This category only exists in an international armed conflict. As the majority
of current conflicts are qualified as non-international, this category occurs rarely. It
requires a close link with the armed forces. However, as the structure of PMSCs does not
allow the State armed forces to directly hire the individual employee, establishing such a
link is rather difficult.155
The act of directly participating in hostilities will also trigger criminal liability. As stated
previously, this could lead to a decrease of the incentive for PMSCs to comply with IHL.
Important to remember is that the notion “armed forces” is of greater importance for the
application of the principle of distinction during the conduct of hostilities while the notion
of “combatant status” is often used to determine if the person is entitled to combatant
privilege and POW-status which requires an ex post assessment. The above has shown
that it is very unlikely for a PMSC employee to obtain combatant privilege or POW-status.
However, for the principle of distinction during the conduct of hostilities they could be
qualified as military targets.
5.3 The principle of distinction in Non-International Armed

Conflicts
Applying the principle of distinction in a Non-International Armed Conflict (NIAC) comes

with far more difficulty as there are fewer provisions on the conduct of hostilities. 156 The
legal status in a NIAC is less important than in an International Armed Conflict (IAC)
because there is no POW-status.157 The term “combatant” does not exist like it does in an
154
impact on their regulation’ (2006) 88 (863) International Review of the Red cross 583, 587-593.
155
156
M Sassòli, A Antoine, A Q Bouvier, How does Law Protect in War Vol. I (ICRC 2011) 795-803.
157
Sandra Fabijanić Cagro, ‘Defining and Recognizing Prisoners of War in Contemporary Armed Conflicts (2014)
3 (5) International Journal of Social Sciences 60, 60-78; ⎯, ‘the law of armed conflict: non-international armed
conflict’ (2002) lesson 10 the law of armed conflict: teaching file, 4-5, 17; Prisoners of War and Detainees
Protected Under International Humanitarian Law (ICRC, 29 October 2010) <https://www.icrc.org/en/doc/war-
and-law/protected-persons/prisoners-war/overview-detainees-protected-persons.htm> accessed 20 April 2019.
34
IAC, but the principle of distinction is applied in the same way. 158 “Combatant” has a
generic interpretation in a NIAC. 159 The combatant notion is interpreted much broader as
the person will not enjoy the protection from direct attack like civilians do but the
combatant will also not necessarily have a combatant privilege. Unfortunately, just like in
an IAC, the general description of “combatant” in a NIAC does not cover all categories of
persons present on the battlefield.160 Applying the principle of distinction requires more
preciseness as human beings are being targeted. Just like in an IAC some basic
categories of persons are regarded as protected persons. Civilians, medical and religious
personnel and anyone hors de combat. Logically, all those not protected are considered
to be a legitimate target. Unprotected persons can be divided into four categories (1)
Persons belonging to the armed forces of the legitimate government, (2) persons
belonging to an armed opposition group, (3) mercenaries and (4) civilians.161 Treaty IHL
uses these terms without defining them.162 Their meaning must therefore be retrieved
from a comprehensive study of treaty and Customary IHL as well as State practice. Just
like in an IAC, knowing if a PMSC employee has a link to a party to the conflict is crucial
for the protection and treatment provided by international law.163
5.3.1 Persons belonging to the Armed Forces

IHL does not clearly define “armed forces”. It is not clear whether armed forces
constitute only State armed forces or also non-State parties.164 A closer look into the
legal doctrine provides two interpretations. Common article 3 of the Geneva conventions
refers to both while article 1 (1) of the Additional Protocol II seems to distinguish
between State armed forces and dissident armed forces or other organized armed groups
but the text of the article fails to do so. The State party to the conflict refers to the State
and not the governmental forces. Because of this, it is unclear if dissident armed forces
or other organized armed groups should be considered as a party to the conflict or as
armed forces belonging to a party to the conflict. This remark may seem nugatory at first
sight, but it comes with far reaching legal consequences. Namely, people forming part of
158
M Sassòli, A Antoine, A Q Bouvier, How does Law Protect in War Vol. I (ICRC 2011)
<https://casebook.icrc.org/law/non-international-armed-conflict> accessed 20 April 2019.
159
160
Rule 1, 3, ICRC Customary International Humanitarian Law Vol. I.
161
art. 3, 4(1), 7(1), 9(1), 13 Additional Protocol II; art. 8(2)(e)(i) Rome Statute of the International Criminal
Court; Rule 1, 25, 27, ICRC Customary International Humanitarian Law Vol. I; Commentary on the Additional
Protocols I and II, para. 4653.
162
163
Luisa Vierucci, ‘Private Military and Security Companies in Non-International Armed Conflicts: Ius ad Bellum
and Ius in Bello Issues’ (EUI Working Papers, PRIV-WAR project, 2009/14) 13 <http://diana-
n.iue.it:8080/bitstream/handle/1814/12954/AEL_2009_14.pdf?sequence=1&isAllowed=y> accessed 20 April
2019.
164
M Sassòli, A Antoine, A Q Bouvier, How does Law Protect in War Vol. I (ICRC 2011) 839-841.
35
the organized armed groups can have political or armed functions. Meaning, there might
be combatants as non-combatants within the same organized armed group, in contrary
to membership to the State armed forces which are always considered as combatants.
this is usually regulated by domestic legislation.165 The latter should be applied in the
same way to establish membership of dissident armed forces. It would be illogical to
consider them civilians just because they have turned their back against the government.
Reality confirms this approach as State practise shows that members of other organized
armed groups are usually attacked by State armed forces even when they are not
directly participating in hostilities. The State clearly does not regard them as civilians but
as de facto combatants. From the above is clear that a functional and broad
interpretation of the concept “armed forces” can be used in in the application of the
principle of distinction.166
This implies that PMSCs can be qualified to be part of the State armed forces based on
domestic legislation as well as by applying a functional criterion. In case the PMSC
employee can be qualified as a member of the armed forces, this employee should be
considered as a legitimate target for the adversary.
5.3.2 Persons belonging to Organized Armed Groups

From the title of this section, several elements can be distilled, “belonging to” and
“organized armed groups”. Persons belonging to an organized armed opposition group,
also known as insurgents, refer to a non-State party to the conflict. According to the
ICRCs commentary to Additional Protocol I & II, a few conditions must be fulfilled to be
qualified as such. The organized armed group must be armed, reach a certain level of
organization and operate under a command responsible to one of the parties to the
conflict.167
Based on the previous section, “belonging to”, must be interpreted in a generic way.
Membership will be based upon a de facto relationship. This relationship may be
established in a formal way but could also be based on a tacit agreement or derived from
165
M Sassòli, A Antoine, A Q Bouvier, How does Law Protect in War Vol. I (ICRC 2011) 843.
166
Commentary on the Additional Protocols I and II, para.1352, 4462; Rule 4, ICRC Customary International
Humanitarian Law Vol I.
167
Commentary on the Additional Protocols I and II, para. 4463; M Sassòli, A Antoine, A Q Bouvier, How does
Law Protect in War Vol. I (ICRC 2011) 843-846.
36
the factual behaviour between the two actors.168 This approach provides more flexibility
for the determination of membership.
There seem to be two ways of qualifying PMSCs as persons belonging to an armed

opposition group. A first possibility entails individual membership to the armed opposition
group and the other refers to the situation where a PMSC is the armed opposition group.
There are numerous examples of PMSC employees engaging in combat activities. In this
context a factual link between the PMSC employees and the opposition group needs to be
found.169 Unfortunately, there is still no formal concept of membership and with the
increasing involvement of civilians in organized armed groups the absence of this concept
could lead to arbitrary targeting. For this reason, it is important to analyse if the person
is exercising a combat function and remember that in situations of doubt this person
must be qualified as a civilian.170 The interpretive guidance supports this approach
stating that “for such time as private contractors assume a continuous combat function
for an organized armed group belonging to a non-State party, they become members of
that group”.171 If PMSCs cannot be brought under this notion they must be qualifed as
civilians.
This may seem to narrow the definition but can be explained due to the mere fact that in
contrast to members of organized armed groups, members of State armed forces without
combat functions had the same training as those with a combat function and are
expected to directly participate in hostilities if they are asked to do so by their
superior.172
The second situation refers to the group as a whole. In this case the group must be
“organized”. Unfortunately, the term is not clearly defined by treaty or Customary IHL.
The International Criminal Tribunal for the Former Yugoslavia (ICTY) provided some
clarification as it distinguished five elements that could help with the qualification. (1) the
presence of a command structure, (2) the capacity of the group to carry out operations
168
Gaeta, The Oxford Handbook of International Law in Armed Conflict (OUP 2015) 314-317; Commentary on
Geneva convention III, 57.
169
Luisa Vierucci, ‘Private Military and Security Companies in Non-International Armed Conflicts: Ius ad Bellum
and Ius in Bello Issues’ (EUI Working Papers, PRIV-WAR project, 2009/14) 13 <http://diana-
n.iue.it:8080/bitstream/handle/1814/12954/AEL_2009_14.pdf?sequence=1&isAllowed=y> accessed 20 April
2019.
170
171
172
37
in an organised manner, (3) the level of logistics, (4) the level of discipline and (5) the
ability to implement the basic provisions of Common article 3 of the Geneva Conventions
which entail the representative character of the group and the ability to speak with one
voice. Such situation has in fact not occurred yet. This scenario is rather exceptional but
in case such a situation arises it would require an assessment based on the
organizational criteria developed by the ICTY. In case the PMSC can be qualified as being
a part of an armed group or, in very rare cases, being the armed group, they can be
considered a lawful target for the adversary.
In contrast to an IAC, a NIAC does not have a combatant notion nor does it have
combatant privilege. Immunity prosecution is therefore governed by domestic legislation.
Unfortunately, but logically from the State’s perspective, this is usually only granted to
the State armed forces. Nevertheless, art. 6 (5) Additional Protocol II calls upon states to
provide amnesty to other armed forces. In reality, this article is not always complied
with. Other than this article, there are only few incentives that can make other armed
forces comply with IHL.173
Note that the principle of distinction and combatant privilege are two separate things,
especially in the generic sense of the word. This theory is supported by Draft Article 24
(1) of Additional Protocol II.174 The article was scratched at the very last minute, not
because states weren’t in favour of the principle of distinction but because they did not
want to provide insurgents with combatant privilege.175
From the above is clear that “Membership” is the decisive element for the combatant
notion in a NIAC as only persons with actual combatant functions are considered to be
unprotected persons. A generic use of the term “combatant” provides the necessary
flexibility to apply the principle of distinction but does not imply combatant privilege or
POW-status. The generic interpretation describes combatants as persons who do not
enjoy civilian protection against attack.176 Such interpretation includes State armed
forces, organized armed groups as well as civilians directly participating in hostilities. As
practical as such interpretation may seem, it comes with risks because this would imply
173
174
‘Official Records on the Draft Additional Protocols to the Geneva Conventions of 12 August 1949’ (1973) I
CDDH 32.
175
176
Rule 1, ICRC Customary International Humanitarian Law Vol. I; International Institute of Humanitarian Law,
“Frontmatter” in Louise Doswald-Beck (ed), San Remo Manual on International Law Applicable to Armed
Conflicts at Sea (CUP 1995) 7-10.
38
that civilians directly participating in hostilities will be considered as legitimate targets
even during moments where they do not engage in such acts. 177 Therefore, a generic
interpretation, in a way, undermines treaty and Customary IHL stating that civilians only
lose their protection for such time as they take a direct part in hostilities.178
Based on the above it seems very unlikely that PMSCs could qualify as “armed forces”,
“dissent armed forces” or “organized armed groups”. Individual membership could be
useful but will usually entail an ex post assessment. In reality, it is clear that the
majority of PMSC-personnel will be qualified as civilians.179
5.3.3 Civilians
The concept of “civilian” is not defined by treaty IHL governing non-international
conflicts. Additional Protocol II only refers to the term as any person not belonging to
one of the categories mentioned in article 1(1) Additional Protocol II which are described
in the above sections.180
If the PMSC is not an organized armed group by itself or its personnel cannot be tied to
the armed forces, they must be qualified as civilians.181 In this context, the notion on
direct participation in hostilities becomes crucial to assess whether the actor can be
considered as a legitimate target or a protected person. Besides that, if the PMSC
employee engages in continuous combat functions on behalf of a party to the conflict, the
employee loses its protection as long as he or she exercises this function. Even if the
employee is not involved in direct participation in hostilities it will remain a legitimate
target. However, as described above, the notion of direct participation in hostilities is still
surrounded by ambiguity. The only two elements that have been clarified through case
law are the types of activities that could trigger Direct participation in hostilities and the
duration of such activity. The activities triggering the notion were clarified by the Israeli
Supreme Court in the Targeted Killings case.182 In the decision of the court, the court
made a list of activities that directly fall under the scope of direct participation of
177
Gaeta, The Oxford Handbook of International Law in Armed Conflict (OUP 2015), 321-322.
178
Art. 51 (3) Additional Protocol I; Art. 13 (3) Additional Protocol II; Rule 6, ICRC Customary International
Humanitarian Law Vol I.
179
180
Art. 1 (1) Additional Protocol II; a similar definition can be found in Draft article 25 (1) Additional Protocol II
as adopted by consensus in Committee III of the Diplomatic Conference of 1974 to 1977.
181
Humanitarian Law (ICRC 2009); Eric David, Principes de droit des conflict armés (Bruylant 1994) 510.
182
Targeted Killing Case (Public Committee v Government of Israel) (Judgement) 2006 Supreme Court of
Israel, HCJ 769/02.
39
hostilities. Even though the court has some prestige, there is no internationally accepted
list. Regarding the second element, the Court confirmed that there is no Customary rule
on the matter. Therefore, this should be assessed on a case-by-case basis. It can be
concluded that the question of applicability of the civilian status on PMSCs in a non-
international armed conflict does not differ from the assessment in case of an
international armed conflict.183
5.4 Conclusion
The status of PMSC-personnel varies based on formal procedures and in some situations
on factual circumstances. In this regard it was necessary do divide the question into the
situation of an international armed conflict and a non-international armed conflict as a
different scope of rules apply to both types of armed conflicts. PMSC-personnel can fall
under the scope of the combatant notion based on two hypotheses. The first one requires
the PMSC to be formally incorporated into the State armed forces hence, through an act
or a law. In practice, PMSC are often used to act independently from the State. Such
assessment is therefore very rare and there are only a few examples of incorporation of
PMSC into the State armed forces based on national or domestic legislation. A more
realistic approach would be to qualify them as members to militias or volunteer corps.
However, the demanding conditions of article 4 A (2) GC III are difficult to fulfil. Besides
that, legal doctrine does not provide a clear answer regarding this method based on a
more teleological interpretation of article 4 A (2) GC III.184
Even tough, the possibility of PMSCs falling under the category of term ‘armed forces’ is
not entirely excluded, the majority of PMSCs will usually qualify as civilians because they
will often fail to meet the criteria to be qualified as anything else.
183
Gaeta, The Oxford Handbook of International Law in Armed Conflict (OUP 2015), 317-318.
184
Jean S. Pictet, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea: Commentary (ICRC 1952) 52; The Law of Armed Conflict and the Use of
Force: The Max Planck Encyclopedia of Public International Law (first edn, 2017) 2 para. 28.
40
6 The Russian Federation and PMSCs
6.1 Introduction
Russia is one of the countries that did not participate in the Montreux process as it claims
to “use such companies rarely”. 185 Even though Russia is still denying any existence of
such companies186, the numerous reports and articles tell the opposite story.187 The last
few years Russian PMSCs have expanded their area of operation. Several PMSC-like
entities have been spotted in Ukraine, Syria188, the Central African Republic189, Sudan190,
Yemen, Libya and recently also in Venezuela.191
First of all, it is necessary to understand the differences between Russian and the
Western-like PMSCs-industry. The best way to do so is to go back in time and check
where Russian PMSC-Industry takes root. Once this part is covered the question whether
there is a national regulatory framework will be discussed. Given the Russian position on
this topic, a lack of such framework should not be a surprise. Yet, it is important to look
deeper into the legislative and political process to gain knowledge on the motives of why
such legislation has or has not been adopted. Based on these results it will be interesting
185
during a meeting on how to regulate PMSCs organized by the Diplomatic Academy of the Russian Ministry of
Foreign Affairs, the ICRC and the Russian Association of International Law on 6 June 2016 Maria Zabolotskaya,
from the Russian MFA (legal division), stated that Russia uses these companies rarely, see ‘Russian Federation:
Regulating Private military and security companies’ (ICRC, 02 June 2016)
<https://www.icrc.org/en/document/russian-federation-regulating-private-military-security-companies>
accessed 20 April 2019.
186
during a meeting on how to regulate PMSCs organized by the Diplomatic Academy of the Russian Ministry of
Foreign Affairs, the ICRC and the Russian Association of International Law on 6 June 2016 Maria Zabolotskaya,
from the Russian MFA (legal division), stated that “Russia is not taking part in the Montreux process, as we
rarely use PMSCs and the process primarily brings together States that do” see ‘Russian Federation: Regulating
Private military and security companies’ (ICRC, 02 June 2016) <https://www.icrc.org/en/document/russian-
federation-regulating-private-military-security-companies> accessed 20 April 2019.
187
Tim Ripley, ‘Putin’s Plans’ (17 April 2019) JDW 20, 20-25; Tim Ripley, ‘Moscow’s Missions’ (30 January 2019)
JDW 24, 26-27,31; ⎯, ‘Russia Supports Maduro Regime: did Moscow send Private Mercenaries?’ (2019)
January Russia Monitor Monthly 21; ⎯, ‘Russia’s Wagner Group Helps Put Down Sudan’s Anti-Government
Protests’ (2019) January Russia Monitor Monthly 8; ⎯, ‘Syrian Civil War. Who is Afraid of Mercenaries?’ (2018)
April Russia Monitor Monthly 17; Jeremy Binnie, ‘Assault by Russian ‘expendables’ further complicates conflict
in Syria’ (15 February 2018) JDW 4.
188
⎯, ‘Russia’s Wagner Group Helps Put Down Sudan’s Anti-Government Protests’ (2019) January Russia
Monitor Monthly 8; Tim Ripley, ‘Moscow’s Missions’ (30 January 2019) JDW 24, 26-27,31; Andrew Linder,
‘Russian Private Military Companies in Syria and Beyond’ (2018) 16 New Perspectives in Foreign Policy 17; ⎯,
‘Syrian Civil War. Who is Afraid of Mercenaries?’ (2018) April Russia Monitor Monthly 17; Jeremy Binnie,
‘Assault by Russian ‘expendables’ further complicates conflict in Syria’ (15 February 2018) JDW 4.
189
Grzegorz Kuczyński, ‘Putin’s Invisible Army’ (2018) The Warsaw Institute Review
<https://warsawinstitute.org/putins-invisible-army/> accessed 25 April 2019.
190
⎯, ‘Russia’s Wagner Group Helps Put Down Sudan’s Anti-Government Protests’ (2019) January Russia
Monitor Monthly 8.
191
⎯, ‘Russia Supports Maduro Regime: did Moscow send Private Mercenaries?’ (2019) January Russia Monitor
Monthly 21; Sergey Sukhankin, ‘War, Business and Ideology: How Russian Private Military Contractors Pursue
Moscow’s Interests’ (2019) The Jamestown Foundation <https://jamestown.org/program/war-business-and-
ideology-how-russian-private-military-contractors-pursue-moscows-interests/> accessed 25 April 2019; Anna
Maria Dyner, ‘The Role of Private Military Contractors in Russian Foreign Policy’ (2018) 64 (1135) PISM Bulletin.
41
to point out the future challenges regarding the establishment of a regulatory framework
on PMSCs in Russia.
6.2 Mapping the Russian PMSC-industry
Although, Russia is one of the countries where PMSCs seem to be a rather recent
phenomenon, the development of this industry has deep historical roots. Throughout
centuries, Russia often relied on non-State actors when it comes down to methods of
warfare or implementing its foreign policies.
In this regard, Cossacks would be a proper example. They can be described as a group of
people that try to avoid serfdom in exchange for defending the Russian Southern and
Eastern borders.192 They are well known for their military achievements, war fighting
skills and bravery.193 Russia values them highly and provided them with multiple
privileges, yet times changed and so did Russia’s position on Cossacks. Suddenly their
identity was no longer recognizing by the Russian Federation. For a time, they were even
oppressed as a group. With the end of the Cold War Russia gained interest in them once
again as they were useful for Russian security. Under the Putin administration Cossacks
regained a lot of their rights including. Soon they were allowed to defend the border
regions, guarding national forests, training young cadets, fighting terrorism, etc. The
reliance on Cossacks even increased after the demonstrations in 2011 and 2012 against
the alleged vote fraud. A new Cossack regiment was established in the Russian army and
military schools were founded for these warriors. History shows that these warriors often
carry out security related duties that the authorities were not jumping to fulfil. Another
example of Russian Federation relying on the support of mercenaries is the Transnistrian
conflict.194 Similar situations can be noticed in the Georgian conflict between Sukhumi
and Tbilisi from 1992-1994195 and the use of ragtag Chechen mercenaries deployed
during the Georgian war (2007-2008).196
192
‘Cossack: Russian and Ukrainian People’ (Encyclopaedia Britanniaca 28 May 2015)
<https://www.britannica.com/topic/Cossack> accessed 23 April 2019.
193
Hege Toje, ‘Cossack identity in the new Russia: Kuban Cossack revival and local politics’ (2006) 58 (7)
Europe-Asia Studies 1065, 1057-1077.
194
Yuri Zoria, ‘Transnistria frozen conflict zone recognizes Russian tricolor as second “national” flag’ EuroMaidan
Press (Kiev, 13 April 2017).
195
Emmanuel Dreyfus, ‘Privat Military Companies in Russia: Not so quiet on the eastern front?’ (Research paper
IRSEM 2018) 3-5.
196
Ralph Peters, ‘Devil Sent Down to Georgia’ New York Post (New York, 18 August 2008)
<https://nypost.com/2008/08/18/devil-sent-down-to-georgia/> accessed 23 April 2019.
42
Similar to the west, the rise of PMSC-companies in Russia came with the end of the cold
war.197 Under Yeltsin the State security sector shrunk, creating a void where crime
increased. As a reaction to this, Russian security companies were created. Private
Security Companies were a good alternative for the private sector in search of security. It
functioned as a good alternative to doing business with the mafia or other criminals.198
When the law on private protection was adopted in 1992199, private security companies
were officially legalized.200 In this context, it is important to stress that there was a
growing lack of trust in the police forces.201 Russia has a rather large domestic market for
private security. Differently to other countries the market developed a distinct branch of
private security. These companies are often established by regional leaders for their very
own personal protection. In practice however, they are also used for other purposes. The
most significant example in this regard is the Terek Unit established by the Chechen
president Ramzan Kadyrov. Back in 2013 Kadyrov refused to rely on the protection
services of the Federal Security Service of the Russian Federation (FSB), hence created
his own protection unit.202 All examples clearly indicate that the governments monopoly
on the use of force slowly began to shatter in several pieces, creating an atmosphere for
the further privatisation of security and warfare.
As mentioned previously, the rise of PMSCs in Russia is linked to the end of the Cold War
which has hit entire units by unemployment. Logically, these could almost immediately
transform into PMSCs of their own. A good example of such is Alpha Group, established
by Group A. It consisted out of FSB special forces units and was later taken over by
ArmourGroup, which is an American company.
After 9/11 another turning point came about as there was a lack of military and security
actors. Several PMSCs, including Russian PMSCs, saw this situation as an opportunity to
expand their businesses.203 This is the context in which Lukom-A204 was created by
197
Mark Galeotti, Russian Security and Paramilitary Forces since 1991 (Osprey Publishing 1900) 64.
198
Vadim Volkov, Violent Entrepreneurs: The Use of Force in the Making of Russian Capitalism (Cornell
University Press 2002) 144-45.
199
Закон РФ от 11 марта 1992 г. N 2487-I "О частной детективной и охранной деятельности в Российской
Федерации" (с изменениями и дополнениями)<http://base.garant.ru/10102892/#ixzz5pEePDjuz> accessed
20 April 2019.
200
Vadim Volkov, Violent Entrepreneurs: The Use of Force in the Making of Russian Capitalism (Cornell
University Press 2002) 144-145.
201
for European and Norwegian security (FFI-Rapport 18/01300, CMI 2018) 20-27.
202
Mairbek Vatchagaev, ‘Kadyrov Takes Chechen Special Forces Training to New Heights’ (2015) 12 (57) The
Jamestown Foundation <https://jamestown.org/program/kadyrov-takes-chechen-special-forces-training-to-
new-heights/>23 April 2019.
203
Keishi Ono, ‘The Trend of the Private Military and Security Companies (PMSCs) – Terrorist Threat and the
Economic Point of View’ NIDS briefing memo (⎯,1 December 2015)
<http://www.nids.mod.go.jp/english/publication/briefing/pdf/2015/briefing_e201512.pdf> accessed 14 April
2019.
43
Russian oil company Lukoil in 1992 to protect its business in Iraq. 205 Although it was
described as a security company, reality makes it difficult to define them as such.
Today, a dozen PMSCs can be distinguished, the oldest Russian PMSC providing military
services being, Antiterror Orel. Created around 2003 by a group of former special forces
operatives, they established a non-government education and training centre in Orel.206
This company can be considered as the basis of many other PMSCs. Companies derived
from Antiterror include Tiger Top Rent Security, Moran Security Group, Ferax, Redut-
Antiterror and Slavonic Corps.
Apart from the Antiterror family, RSB-Group207, officially registered in Moscow in 2011,
constitutes another branch of the Russian PMSC industry. The company was led by Oleg
Krinitsyn and hired especially former GRU and FSB officers. Some believe that this
company was involved in the situation in the Donbas and the annexation of Crimea.208
Out of all Russian PMSCs, RSB-Group is the most western like PMSC. Since 2016, this
company was the first Russian PMSC to invest in cyber defence.209 Another example is
PMSC MAR210, a smaller PMSC providing a wide range of services. Ukrainian sources state
that this PMSC has fought alongside the forces of the Donets Peoples Republic.211 ENOT
Corp, another company, is believed to be active in Syria.212
Probably the most interesting PMSC for this study is Wagner Group. The company takes
root in Moran Security Group which makes it part of the Antiterror family of PMSCs. At
this point, Wagner, is the most famous Russian PMSC since it has been largely active in
supporting Assad’s forces on the ground in Syria but is also known for its limited
204
More information regarding Lukom-A can be found on their website <http://lukom-a.ru/en/> accessed 20
April 2019.
205
Pavel Luzin, ‘How the Kremlin Sealed the Deal with Russia’s Private Military Contractors’ (2019) Riddle
<https://www.ridl.io/en/how-the-kremlin-sealed-the-deal-with-russia-s-private-military-contractors/> accessed
20 April 2019.
206
for European and Norwegian security (FFI-Rapport 18/01300, CMI 2018) 20-27; Molly Dunigan, Ulrich
Petersohn, The Markets for Force: Privatization of Security Across World Regions (University of Pennsylvania
Press 2015) 87-96.
207
More information regarding RSB-Group can be found on the following website <http://rsb-group.org/>
208
Monthly 21; Grzegorz Kuczynski, ‘Putin’s Invisible Army’, (2018) The Warsaw Institute Review
<https://warsawinstitute.org/putins-invisible-army> accessed 20 May 2019.
209
for European and Norwegian security (FFI-Rapport 18/01300, CMI 2018) 23.
210
More information regarding PMSC MAR can be found on the website <http://chvk-mar.ru/en/> accessed 20
April 2019.
211
Алексей Богатищев, ‘Российская частная военная компания "Мар": от Украины до Сирии’ Военное РФ (6
Сентября 2015) <https://военное.рф/2015/205698/> last accessed 29 May 2019.
212
Cody Roche, ‘Assad Regime Militias and Shi’ite Jihadis in the Syrian Civil War’ (Bellingcat, 30 November
2016) <https://www.bellingcat.com/news/mena/2016/11/30/assad-regime-militias-and-shiite-jihadis-in-the-
syrian-civil-war/> accessed 23 May 2019.
44
involvement in backing the pro-Russian forces in Donbas. Besides that, Wagner has been
reported to be active on the African continent. Quite recently various sources reported of
Wagner also being active in Venezuela.
The Syrian involvement of Wagner started two years before the Russian Federation was
involved in the conflict. When the Syrian government requested Moran Security Group to
assist them in the retaking of the Syrian oil and gas infrastructure, at the time controlled
by the Islamic State Moran Security Group decided to respond to the Syrian request.
Because PMSCs are inexistent in Russian legislation, Moran Security Group decided to
create a subsidiary company registered in Hong Kong called “Slavonic Corps”. It was
Slavonic Corps that sent approximately 250 men to take back the infrastructure as
requested by the Syrian government. Despite the effort, Slavonic Corps failed in its
attempt. Upon their return to Russia two of the core members of Slavonic Corps got
arrested and convicted for breaking the Russian Mercenary law. At this stage Moran
Security Group denied all ties to Slavonic Corps.
Although the exact date of Wagner’s creation is unclear it is most likely that Wagner was
already active in 2014. During this period of time Wagner had a base camp for the
purpose of training its personnel. This camp was located at Molkino, Southern Russia. It
is not a surprise that there was an already long existing base camp of the 10th GRU
special forces brigade in the very same area.213 The main figure behind Wagner is Dimitri
Utkin, part of the 2nd GRU special forces brigade in Pskov. He joined Moran Security
Group and ended up taking part in the Failed operation by Slavonic Corps in Syria.
Surprisingly he was not arrested upon arrival in Russia. These elements show the
proximity between Wagner and GRU. However, the Russian government keeps denying
any ties between the president and Wagner.214
This company appears to have fought in Ukraine, Syria, Libya, Sudan, the Central African
Republic and Venezuela.215 Internet newspaper based in St. Petersburg “Fontanka” ran a
213
‘People think it doesn’t affect them. But it affects everyone’, Meduza (⎯, 30 August 2017).
<https://meduza.io/en/feature/2017/08/30/people-think-it-doesn-t-affect-them-but-it-affeects-everyone, (last
accessed 23/04/2019)> accessed 20 April.
214
Томин Арсений, ‘Кремль потвердил фотографирование Путина с руководством Х В К Вагнера’,
Московский Комсомолец’ Fontanka RU (Москва, 13 январь 2017)
<https://www.fontanka.ru/2017/08/103/?utm_source=novapress, last accessed 23/04/2019)> accessed 20
April 2019.
215
Maria Tsvetkova, Anton Zverev, ‘Exclusive: Kremlin-linked contractors help guard Venezuela’s Maduro-
sources’ Reuters (London, 25 January 2019) <https://www.reuters.com/article/us-venezuela-politics-russia-
exclusive/exclusive-kremlin-linked-contractors-help-guard-venezuelas-maduro-sources-idUSKCN1PJ22M>
45
series of investigations in 2016 and 2017. 216 The investigations revealed Wagner’s active
role in Syria since 2014 and its involvement in the annexation of Crimea and in the
support of pro-Russian forces in the Donbass. The report also revealed that Wagner was
directly engaged in combat on significant scale. The first important operation that
Wagner was engaged in was the liberation of Palmyra from the Islamic State.217 After
that, they also took part in the second liberation operation of Palmyra in 2017. The 2500
fighters being deployed during this last battle was structured into several departments
such as, tank, artillery, intelligence and logistic units. This shows a high-level
organisation comparable to a battalion battlegroup.218
However, given the aspects of this company it is questionable whether Wagner can be
compared to the standard Western PMSC. Informnapalm, a Ukrainian source, states that
Wagner is a unit of voluntary former GRU special forces operatives. 219 From the looks of
it, GRU was a major player in the establishment and further development of Wagner.
Today, it is assumed that the company has at least 6000 employees with 1500
operatives active at any given time.220
For reasons of completeness, there are rumours about PMSCs called TURAN and Patriot.
Patriot would be a PMSC derived or created by the FSB. Yet there is not enough data to
confirm the existence of these companies at this particular moment.221
6.3 Regulating the Russian PMSC-industry
6.3.1 Adopting legislation

It is clear that PMSCs are a very much existing phenomenon in Russia however, they are
not regulated at domestic level. In Russia, Russian PMSCs are rather controversial.
However, controversy does not suffocate the air for legislative initiatives. Ever since
2009, initiatives regarding the regulation of this industry have been introduced to the
Duma. In 2009, Anddrei Lugovoi made an attempt to get a grip of the industry at a
legislative level. More specific, he proposed an amendment to the law on private security
companies that would allow them to operate abroad. One year later, Duma deputy,
216
Денис Коротков, ‘Они сражались за Пальмиру’, Fontanka RU (Москва, 29 марш 2016)
<https://www.fontanka.ru/2016/03/28/171/> accessed 23 April 2019).
217
Денис Коротков, ‘Они сражались за Пальмиру’ Fontanka RU (Москва, 29 марш 2016)
<https://www.fontanka.ru/2016/03/28/171/> accessed 23/04/2019).
218
ibid.
219
for European and Norwegian security (FFI-Rapport 18/01300, CMI 2018) 22.
220
ibid.
221
⎯, ‘Wagner versus Patriot: Fighting for Mercenary Control’ (2018) January Russia Monitor Monthly 9.
46
Gennadiy Nosovko, proposed the second initiative to legalize and regulate the Industry.
In 2012, representative Andrei Mitrofanov proposed a law which called on State
regulation of the establishment and operation of PMSc. In 2014, Gennadiy Nosovko, for
the second time, proposed a legal initiative. This time it entailed the proposition of
allowing PMSCs to operate as de-mining and armed defense of civilian maritime vessels
and an alternative regulation of armed conflicts beyond Russia’s border but again without
any success.
Lots of initiatives have reached the floors of the Duma, yet they never saw the light
beyond the doors of the Duma. In 2011, Putin expressed some general support for the
Mitrofanov initiative. He stated the following “I understand your question and think that
this (the establishment of PMSCs) undoubtedly is an instrument for the realization of
national interests where the State itself does not have to be involved”.222
The first initiative, close to the PMSC-industry, was the law on the short-term military
contract service. Unfortunately, this law would not refer explicitly to the phenomenon of
PMSCs, but it is a step closer towards regulating PMSCs. The most recent initiative dates
from 2018. This proposal seemed to have more political backing than previous initiatives.
Unfortunately, the bill was not ratified as the Defense Ministry, finance Ministry, Foreign
Ministry, National Guard, FSB, Foreign Intelligence Service, Federal Protective Service,
Office of Prosecutor General and Justice Ministry voted against the initiative.223
6.3.2 Legal obstacles

In theory, Russian law makes it impossible to create a PMSC or use one abroad. It is
interesting to take a closer look on the obstacles that are standing in the way to move
towards a bill on regulating PMSCs at domestic level. This should reveal whether the
obstacles are truly insuperable or other, more political and bureaucratic are blocking the
whole process.
On a roundtable on PMSCs at the Russian Diplomatic academy in May 2016, the Ministry
of Defense delegation expressed that a specific Russian law on PMSCs was premature
and that Russia should continue to participate in the development of international
guidelines in this sphere.224 The law that was proposed to the Duma was also discussed
Путин поддержал идею создания в России частных военных компаний’ PNA Hoboctn (⎯, 11 апреля
222 ‘
2011) <https://ria.ru/20120411/623227984.html> accessed 20 May 2019.

223
ibid.
224
Labetskaya E. ‘Private military companies: to be or not to be in Russia?’ (2016) 2(51) Pathways to Peace
and Security 189, 189-192.
47
during that roundtable, yet experts were rather skeptic stating that the draft clearly
needed serious professional revision.225
The last promising legislative bill was introduced in January 2018 by Sergey Mironov
(leader of the “Fair Russia” party) and Duma Mikhail (first deputy head of the “socialist-
Revolutionaries” faction). According to “Interfax”, the bill provides regulation for the
creation, reorganization and liquidation of private military and security organizations. It
would regulate the performance and provisions of services of military and security nature
as well as the control and supervision over their activities. The bill considers military and
security services as specialized services rendered by a private military organization in the
interests of the customer, including in situations of armed conflicts.
According to Interfax, the licensing procedure was entrusted to the Ministry of Defense.
The objectives of the PMSCs activities are prescribed to participate in ensuring national
security and to protect the national interests of the Russian Federation by performing
and providing military and security services outside the Russian territory. In the draft,
PMSCs would take the form of a limited liability company and would need a minimum
capital of ten million rubles. Such companies would be allowed to establish branches and
subsidiaries outside of the Russian State.226
However, a legislative struggle, strangled the whole initiative in March 2018. 227
The bill
was considered to be unconstitutional. The main articles standing in the way were article
13, §5 and art. 71 of the Constitution of the Russian Federation.228 Article 13 prohibits
the creation of public associations that would aim at undermining the security of the
State as well as creating armed groups. Therefore, it prohibits the creation of PMSCs.
Art. 71 on pronounces that issues of defense and security, war and peace, foreign policy
and international relations of the Russian Federation fall within the jurisdiction of the
Russian Federation. Which again prohibits the privatization of war. It looks like legalizing
PMSCs requires amending the Constitution. Given the fact that the Constitution was only
changed in 2008 by Dmitry Medvedev introducing an amendment with the purpose of
225
⎯ ‘Russian Federation: Regulating private military and security companies’ (ICRC, 2 June 2016) <
https://www.icrc.org/en/document/russian-federation-regulating-private-military-security-companies>
226
⎯ ‘правительство росийссийски федерации не поддержало законопроект о ЧВК’,
Интерфакс (27 март 2018) <https://www.interfax.ru/russia/605539> accessed 20 April 2019.
227
⎯ ‘Kremlin blocks the bill legalizing Russian Private military companies’ UAWIRE (⎯, 28 March 2019)
<https://uawire.org/russia-will-not-legalize-mercenaries> accessed 23 April 2019.
228
Статья 13(5), 17, Конституция Российской Федерации, http://constitution.kremlin.ru/,
http://base.garant.ru/5697462/ (unofficial translation can be found on
<https://www.refworld.org/docid/3ae6b59f4.html>accessed 24 April 2019).
48
extending the presidential term limits from four to six years, it shows that changing the
Constitution is a rather exceptional phenomenon.229 However, it also shows that if the
political will is there, anything is possible in Russia.
6.3.3 Political obstacles

Due to a mix of political and bureaucratic opposition, claims of procedural mistakes and
the absence of any pressure from the Kremlin in favor of the proposals, none of the
initiatives described above, were adopted into law. Resistance towards legalizing PMSCs
is probably ideological. If such companies would be legalized, who would be appointed to
monitor and control them? This uncertainty creates a difficult atmosphere to establish
legislation. Too many actors are in the running for the position of controlling PMSCs. The
lack of trust between the Ministry of Defense and the FSB creates fear that the industry
could work against the government. Control over these companies is also directly linked
to the control over financial resources.230 However, benefitting from this sector on an
international market requires domestic legislation and signing the Montreux Document.231
Secondly, there is still too much ambiguous work in Ukraine and Syria. Therefore, the
political scene is more interested in keeping PMSCs outside of the law. The consequences
linked to the activities of impersonal fighters are easier to handle than military personnel
or even contracted soldiers. If captured, the last scenario could raise many questions and
leave the government and ministry of foreign affairs with a lot of headaches.
Vladimir Neelov, an expert in modern warfare, military doctrine and strategy who got
arrested in St. Petersburg on October 25, 2018, supports the theory that political
obstacles are preventing legislative initiatives from passing. 232 The power struggle
between the FSB and the Ministry of Defense, including the Main Intelligence directorate
(GRU) is well-known.233 The fact that the Ministry of Defense proclaims PMSCs to be of
relevant importance and others within the same structure remain rather sceptic towards
229
Mike Eckel, ‘Russia’s Top Judge spurs New Talk of Changing Constitution’ Radio Free Europe (⎯, 16 October
2018) <www.rferl.org/a/russia-s-top-judge-spurs-new-talk-of-changing-constitution/29547265.html> accessed
24 April 2019.
230
Влад Крымский, ‘Признание «Ихтамнетов»: В России легализуют частные военные компании’ Версия РУ
(⎯, 20 January 2018) <https://Versia.ru/v-rossii-legalizuyut-chastnye-voenye-kompanii> accessed 24 April
2019.
231
ibid.
232
Anna Varfolomeeva, ‘Russia arrests PMC Wagner expert Vladimir Neelov on treason charges’ The Defense
Post (Washington D.C., 9 November 2018).
233
Mark Galeottii, ‘Russian intelligence is at (political) war’ (NATO review Magazine, 12 May 2017)
<www.nato.int/docu/review/2017/Also-in-2017/russian-intelligence-political-war-security/EN/index.htm>
49
those actors executing functions within the military indicate that there is no consensus on
the matter, even within the same structures.234
Firstly, in one way or another, PMSCs are likely to consume resources that otherwise
could have gone to the regular military. Secondly, legalization would probably mean that
the casualties sustained by the PMSCs in operations would be added to overall Russian
casualty figures. In the case of Syria, the Ministry of Defense has so far been able to
brag about very low casualty rates because much of the Russian fighting on the ground
has been conducted by non-official PMSCs, such as Wagner. Thus, if PMSCs are allowed
to continue to exist in Russia, the image of the ministry could be damaged.235 A possible
third reason for the Ministry of Defense’s resistance is that a legalization of PMSCs may
create unwanted competition for the ministry’s own efforts for profit as the non-budget
revenues for the Ministry of Defense have been a particularly easy source of
corruption.236
It is necessary to understand that the FSB is not completely against PMSC because if
such was the case, the FSB would not let them exist in the first place. The FSB has a
rather profound influence within the Kremlin and is perfectly able to block all activities of
PMSCs. As Russian military observer Arkadii Babchenko says, the FSB is in full control of
the PMSCs.237 Therefore, it is safe to say that the FSB allows PMSCs to exist in a limited
and strictly controlled way. In this scenario, control, however does not entail the
monitoring or oversight of existing companies as certain international standards would
suggest. In the case of Russia, PMSCs are not companies that can act freely as private
actors because the FSB and ultimately the Kremlin will always pull the final strings,
telling them what to do. Such “control” goes far in the sense that the Kremlin has all
ability to dissolve such companies if they do not live up to their wishes.
6.4 Conclusion
For the moment, reality is that PMSCs exist and are deployed for various purposes.
However, there is no legal framework to regulate their activities. From the above it can
be concluded that Russia is still not ready for the legalization of PMSCs. The main
challenges seem to be related to the Constitution of the Russian Federation on the one
hand and to political differences between the FSB and the Ministry of Defense on the
234
for European and Norwegian security (FFI-Rapport 18/01300, CMI 2018) 28-33.
235
ibid.
236
ibid.
237
ibid.
50
other hand. The main challenge entails reaching a compromise between the two main
actors. As a new proposal for legislation is on its way, rumors can be heard from various
sides suggesting that the draft of the bill will put the Ministry of Defense in control over
the licensing and abroad activities of PMSCs. It needs no prophecy that the FSB will
strongly oppose this law. Recently, there is a lot of movement within the Russian PMSC-
industry and overall population regarding this topic. For instance, the industry itself filed
a lawsuit against people in charge of Russian PMSCs at the International Criminal Court,
demanding an investigation.238 These elements make it more difficult for Russia to hide
behind the saying that “such companies do not exist”. The demand for the regulation of
the industry at domestic level is slowly increasing and the government will sooner or
later be forced to overcome their internal differences to live up to these demands.
238
Maria Tsvetkova, ‘Russian military veterans seek ICC investigation of mercenary deployments’ Reuters
(Toronto, 9 november 2018).
51
7 From Russia With Wa(gne)r: Cases and perspectives
on the applicability of International Humanitarian
Law towards Russian PMSCs
7.1 Introduction
In general, most Russian PMSCs share a very different ideology compared to Western
PMSCs. They have certain structures going from exploration, maintenance, logistics,
analysis and only in very limited cases the use force is legitimate. Contrary to western
PMSCs, Russian PMSCs seem to have more in common with mercenaries in their daily
activities.
This chapter will try to determine the legal status of Russian PMSCs. It will elaborate on a
selection of cases in which Russian PMSCs were involved. Each case will be used to
assess whether PMSC-employees are combatant or non-combatant by applying the
principle of distinction derived from the existing framework of International Law. The
most well-known Russian PMSC at the moment is Wagner. That is to say, the most
controversial PMSC due to its increasing activity on global scale.239 Its recent activities in
Syria triggered many journalists to report, write and speculate about the operations of
Russian PMSCs in various parts of the world. As this PMSC is surrounded by uncertain
information, such assessment is more difficult. A few cases will be used to illustrate a
more practical view on the topic. For a better clarification, a situation of an IAC and a
NIAC will be used to illustrate how treaty and Customary IHL are applied in a more
practical sense.
Each case study will begin with a short description of the situation which will clarify why a
conflict is international or non-international. Several hypotheses will be tested to classify
such personnel as a combatant, civilian or another category as provided by treaty and
Customary IHL.
239
Tim Ripley, ‘Moscow’s Missions’ (30 January 2019) JDW 24, 26-27,31.
52
7.2 International Armed Conflict
7.2.1 The battle of Deir ez-Zor240

The most outspoken battle where
Russian PMSCs were reportedly
involved was the battle of Deir ez-
Zor. According to official U.S.
sources, pro-government forces,
consistent of local militiamen, Syrian
soldiers, Iran-trained Shia fighters
and Russian contractors, launched an
attack on Kurdish Syrian Democratic Forces (SDF) and its U.S. military advisers at 10 PM
local time on 7 February 2018. 241 This attack was initiated by artillery, mortars and
rockets and was also supported by T-72 and T-55 tanks.242 Such attack was perceived by
the U.S. as a coordinated attack. The U.S. response was ferocious given the amount of
weaponry deployed during the fight. More precisely, the response was supported by
U.S.-led coalition aircrafts, AC-130 gunships, F-15E Strike Eagle Fighter Jets, unmanned
aerial vehicles (MQ-9), AH-64 Apache helicopters, B-52s, F-22s and on top of that, the
marine forces shelled Syrian forces with high mobility artillery rocket systems.243
According to Lieutenant General J.L. Harrigan the attacks were described as an act of
self-defence.244
According to Radio Svobota and the Pentagon, U.S. forces were in constant contact with
an official Russian liaison officer in Deir ez-Zor. U.S. forces only opened fire after they
were certain that no regular Russian troops were participating in the attack.245
240
Christopher R. Spearing, ‘Russia’s Military and Security Privatization’ (2018) 48 (2) The U.S. Army War
College Quarterly Parameters 39; Jeremy Binnie, ‘Assault by Russian ‘expendables’ further complicates conflict
in Syria’ (15 February 2018) JDW 4.
241
ibid.
242
Joanne Stoker, ‘Coalition and SDF thwart Syrian ‘pro-regime’ forces attack in Deir Ez zor’ The Defense Post
(Washington D.C., 8 February 2018) <https://thedefensepost.com/2018/02/08/coalition-sdf-pro-regime-
forces-attack-khusham-deir-ezzor/> accessed 28 May 2019.
243
Lieutenant General Jeffrey Harrigian ‘Department Of Defense Press Briefing by Lieutenant General Harrigian
via teleconference from Al Udeid Airbase, Qatar’ (U.S. Air Forces Central Command U.S. Department of
Defense, 13 February 2018) <https://dod.defense.gov/News/Transcripts/Transcript-
View/Article/1441080/department-of-defense-press-briefing-by-lieutenant-general-harrigian-via-teleco/>
244
CJTF-OIR PAO, ‘Unprovoked attack by Syrian pro-regime forces prompts Coalition defensive strikes’
(Operation Inherent Resolve, 7 February 2018) https://www.inherentresolve.mil/Media-
Library/Article/1435218/unprovoked-attack-by-syrian-pro-regime-forces-prompts-coalition-defensive-strik/
245
Сергей Хазов-Кассиа ‘Проект "Мясорубка". Рассказывают три командира "ЧВК Вагнера"’ Radio Liberty
(⎯, 07 Март 2018) <https://www.svoboda.org/a/29084090.html> accessed 20 May 2019; Kimberly Marten,
‘The Puzzle Of Russian Behavior In Deir Al-Zour’ (War On The Rocks, 5 July 2018)
<https://warontherocks.com/2018/07/the-puzzle-of-russian-behavior-in-deir-al-zour/> accessed 27 May 2019.
53
U.S. sources claim that over a hundred Syrian pro-government fighters were killed and
one SDF fighter was wounded during the battle that lasted approximately two to three
hours.246 Some U.S. defence officials claimed on CNN that some Russian contractors were
involved in the fighting and died in airstrikes but that the Russian counterparts assured
that there were no Russians in the paramilitary formation prior, during and after the
battle.247
The official statement of the ISIS Hunters Unit has a different view on the battle. Stating
that they received intelligence about ISIL forces moving closer towards Khasham.248
Based on this intelligence, pro-government forces initiated their shifting towards the
Euphrates with the aim of stopping ISIL forces. Intelligence was derived from intercepted
radio communication that ISIL forces retreated to the Conoco factory. As pro-
government forces proceeded moving towards their goal, their troops were pushed back
by U.S. forces airstrikes. According to the Syrian sources, 55 were killed of which 10
Russian fighters.249
The Kremlin remained silent on the matter. There are no official statements concerning
this battle. Unofficial sources are often inconclusive and differ from each other. While
some sources claim that over 200 private contractors were killed during the battle others
estimate that the death toll of Russian private contractors varies around 20. A Russian
paramilitary claimed that 218 Russian private contractors died during the fight. A Russian
military doctor and leader of a PMC-linked paramilitary Cossack unit and a source with
ties to Wagner estimates that 80-100 were killed and another 200 were wounded.250
These statements stand in contrast with other unofficial sources claiming that 25 died.251
The most independent Russian investigative group “Conflict Intelligence Team” confirmed
10 contractors and suspects that the total number of contractors that died during the
246
Christopher R. Spearing, ‘Russia’s Military and Security Privatization’ (2018) 48 (2) The U.S. Army War
College Quarterly Parameters 39.
247
Сергей Хазов-Кассиа ‘Проект "Мясорубка". Рассказывают три командира "ЧВК Вагнера"’ Radio Liberty
(⎯, 07 Март 2018) <https://www.svoboda.org/a/29084090.html> accessed 20 May 2019; Kimberly Marten,
‘The Puzzle Of Russian Behavior In Deir Al-Zour’ (War On The Rocks, 5 July 2018)
<https://warontherocks.com/2018/07/the-puzzle-of-russian-behavior-in-deir-al-zour/> accessed 27 May 2019.
248
Leith Aboufadel, ‘Pro-gov’t ISIS Hunters release official statement after US airstrikes in Deir Ezzor’ AMN (⎯,
11 February 2018).
249
Andrew Illingworth, ‘Confirmed: Dozens of Syrian troops killed by US ‘defensive’ airstrikes in Deir Ezzor’
AMN (⎯, 8 February 2018); Leith Aboufadel, ‘US attack on pro-gov’t forces in Deir Ezzor killed more than 10
Russians (photos)’ AMN (⎯, 13 February 2018).
250
‘The business of war: Russian mercenaries in Syria’ France24 (Paris, 23 February 2018)
<https://www.france24.com/en/20180223-russia-fighters-syria-exclusive-interview-mercenary-wagner>
251
Tim Lister, Mary Ilyushina and Sebastian Shukla ‘The oil field carnage that Moscow doesn't want to talk
about’ CNN (New York, 19 February 2018).
54
attack is 20 to 30 contractors. 252 Leading figures of Wagner PMSC (Andrey Troshev)
claims the battle took 14 of his employees, while other leading figures claim no more
than 15 employees died.253
Ukrainian sources, especially the Security Services of Ukraine (SBU) which are very
active regarding this topic, published a list with 64 names of private contractors that died
during the fight. They claim the total number of casualties should be put at 80.254
From the various statements and investigations, it becomes clear that the battle is highly
disputed. There are different versions of what happened that night. Besides that, it is not
entirely clear who participated during the battle and different numbers of casualties were
reported by various sources. However, based on this information it can be assumed that
PMSC-employees of the corporation Wagner were active during this battle. Based on the
data obtained from various sources it is clear that the U.S.-led coalition clashed with
Syrian pro-government forces. The situation strongly indicates that this situation took
place in an international armed conflict.255 Therefore, the next section will try to classify
this actor according to the rules of an international armed conflict.
7.2.1.1 Applying the principle of distinction

As seen previously, all members of the armed forces of a party to an international armed
conflict are combatants and enjoy combatant status.256 They are provided with POW-
status in case they are captured by the adversary.257 Medical and religious personnel
exercising humanitarian functions are an exception to this rule.258 The first logical step
would be to check if Wagner employees are incorporated into the State armed forces of
the Russian Federation or the Syrian State armed forces.259 As seen in chapter 6, IHL
remains silent on this matter. Therefore, each State should regulate this through internal
legislation.260 Note that membership to the armed forces are not always the same under
252
Rob Crilly, ‘Russia's use of mercenaries in Syria is causing trouble back home’ The National (⎯, 19 February
2018) <https://www.thenational.ae/world/mena/russia-s-use-of-mercenaries-in-syria-is-causing-trouble-back-
home-1.706122> accessed 20 May 2019.
253
⎯ , ‘PMC Wagner chief: 14 were killed in Syria’ Pravda Ru (⎯,19 February 2018)
<http://www.pravdareport.com/news/hotspots/140103-wagner/> accessed 20 May 2019.
254
⎯ , ‘SBU publishes list of 206 non-TOE employees of the Directorate of General Staff of Russian Army,
members of Wagner PMC, plus personal data on eight more killed mercs’ (Security Services of Ukraine, 7
October 2018) <https://ssu.gov.ua/en/news/1/category/21/view/5281#.MdZTmU32.dpbs> accessed 20 May
2019.
255
Marija Sulce, ‘The Syrian Armed Conflict: Nearing the End?’ in Annyssa Bellal, The War Report: Armed
Conflicts in 2018 (Geneva Academy 2019) 123-134.
256
Rule 3, ICRC Customary International Humanitarian Law Vol. I.
257
Art. 4 GC III.
258
Art. 43(2) Additional Protocol I; Rule 3 ICRC Customary International Humanitarian Law Vol. I.
259
260
Art. 4 (1) GC III; art. 34 Aditional Protocol I; Commentary of 1960 on the Convention (III) relative to the
Treatment of Prisoners of war, Geneva, 12 August 1949.
55
domestic and international law. National legislation could refer to administrative and
jurisdictional matters while IHL uses “membership to armed forces” to exclude those
actors from the civilian status.261 Regarding the Russian Federation, there are no laws
regulating Russian PMSCs in general. De Jure such entities do not exist. Logically, no
laws on membership into their State armed forces could be found either. Besides that,
the Russian government claimed that no Russian troops were involved during the battle
of Deir ez-Zor. Syria remains silent on the involvement of PMSC personnel from the
Wagner Group. It can be stated that Wagner employees are not officially incorporated
into the State armed forces.
However, even if PMSC personnel is not incorporated into the armed forces under
national legislation, they could be incorporated on a de facto basis if they are given a
continuous combat function. 262 The PMSC would become a member of one of the
organized armed forces, groups, or units under a command responsible to a party to the
conflict. In that case PMSC employees would no longer qualify as civilians in the
application of the principle of distinction.263 In this case, such de facto incorporation could
be a possibility to tie members of PMSC Wagner to the Syrian pro-government forces.264
However, they would not enjoy the combatant privilege which entails the right to directly
participate in hostilities with immunity from domestic prosecution. It would merely
distinguish them from civilians and civilians taking direct part in hostilities on a
spontaneous, sporadic or unorganized basis.265 However, such functional approach is not
further specified by Customary and treaty IHL nor is there case law on the matter.
Therefore, the qualification of PMSC personnel as belonging to the armed forces comes
with great uncertainty.
Another way to tie Wagner employees to the armed forces to the conflict is by labelling
them as members of militias or volunteer corps as described in article 4 (1) & (2) GC
III.266 However, to be recognised as such, a series of conditions must be fulfilled.267 The
first condition states that such members must belong to a party to the conflict. In this
261
Ff 9, Avril McDonald, ‘Background Document Working Sessions VIII and IX: Individual Contractors and
Civilian Employees’ (2005) Third Expert Meeting on Direct Participation in Hostilities under International
Humanitarian Law, Geneva, 23-25 October 2005.
262
263
fn 71 Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International
Humanitarian Law (ICRC 2009).
264
265
266
267
Art. 4 (2) GC III.
56
case it should be verified if Wagner could belong to the Syrian pro-government forces.
However, the notion “belonging to a Party to the conflict” is not defined nor specified in
IHL. One must therefore rely on general international law. In this case, the rules on State
responsibility developed by the International Law Commission could be useful to
establish such a link. The other condition requires them to operate in or outside their
own territory, even if the territory is occupied. Which is fulfilled in this case as Wagner
operates on Syrian territory. However, besides these conditions, article 4 (2) GC III sums
up 4 other cumulative criteria that must be fulfilled to obtain POW-status.268 Firstly, the
condition of being under the command of a person responsible for his subordinates. In
practise, Wagner employees should have been following the orders of a responsible
commander during the attack. This could be fulfilled but due to evidence being rather
circumstantial and incomplete in this case it cannot be confirmed. In regard to the other
conditions it can be confirmed that Wagner employees were wearing uniforms but again,
evidence of them wearing fixed distinctive signs recognizable at a distance is
inconclusive. It can be assumed that they carried arms openly during the time of the
battle. Based on the course of the battle, it is possible that Wagner did conduct their
operation in accordance with the laws and customs of war. However, due to certain
conditions being unspecified and a lack of clear evidence it cannot be said with certainty
that Wagner employees could fall within the scope of article 4A (1) & (2) GC III which
would provide them with combatant status and Prisoner of War status.
In this case, it is most likely that the members of PMSC Wagner cannot be considered as
members of the armed forces of a Party to the conflict as not all criteria from article 4 GC
III are fulfilled. In this case, they will most likely be considered as civilians taking direct
part in hostilities, losing the immunity from attack. However, they could be considered as
civilians exercising a continuous combat function which would tie them to the Syrian pro-
government forces on a de facto basis.269 This will distinguish them from the general
civilian population but will not provide them with combatant privilege or POW-status.
268
Art. 4 (A) (1) (2) GC III.
269
Rule 6, ICRC Customary International Humanitarian Law Vol. I.
57
7.3 Non-International Armed Conflicts
7.3.1 Battle of Debaltseve

The battle of Debaltseve took place
between 14 January and 20 February
2015.270 The battle was initiated by the
pro-Russian forces of the Donetsk People’s
Republic (DPR) and intended to recapture
the city of Debaltseve in Donetsk Oblast.271
At that time the city was controlled by
Ukraine as they regained control over the
city in July 2014. The city forms an
important connection between the DPR and
the Luhansk People’s Republic (LPR)
through a road and railway and is of great
importance to the pro- Russian forces.272
During the times leading up to the actual battle the city was more or less abandoned due
to intermittent shelling of the city.273 On 22 January, the Ukrainian positions were hit by
forces of the DPR. The take-over was accompanied by heavy shelling of the city. Later,
on 29 January, the pro-Russian forces had to pull back due to a counterattack by
government forces which killed many of the armed forces.274 The pro-Russian forces
managed to capture Vuhlehirsk. The town is 13 km away from Debaltseve. The loss of
Vuhlehirsk made it more challenging for the Ukrainian forces to maintain control over
Debaltseve. This move played a key role in the capturing of Debaltseve.275 On the 31th of
January, Debaltseve was confirmed to be under the control of the DPR. 276 From February
on, the situation got worse. As citizens tried to flee the territory, they go caught in the
field of fire. Ceasefires were agreed upon yet not respected. The pro-Russian forces
moved up to Lohvynove and captured it on 9 February, surrounding Debaltseve. The only
270
Galia Ackerman, ‘Debaltseve: defeat or strategic victory?’ (Ukraine Crisis Media Centre, 31 January 2017)
<http://uacrisis.org/52058-debaltseve-une-defaite-ou-une-victoire-strategique> accessed 20 May 2019.
271
Galia Ackerman, ‘Debaltseve: defeat or strategic victory?’ (Ukraine Crisis Media Centre, 31 January 2017)
<http://uacrisis.org/52058-debaltseve-une-defaite-ou-une-victoire-strategique> accessed 20 May 2019.
272
—, ‘Battle of Debaltseve: The Conventional Line of Effort in Russia’s Hybrid War in Ukraine’ (ARMOR, winter
2017) <https://www.benning.army.mil/armor/eARMOR/content/issues/2017/Winter/1Fox17.pdf> accessed 20
May 2019.
273
—, ‘Kremlin-backed separatists rain death down on Debaltseve’, Kyiv Post (kyiv, 20 January 201).
274
—, ‘Footage shows pro-Russian rebels under fire in Ukraine’ BBC News (London, 30 January 2015).
275
—, ‘Ukraine rebels move to encircle government troops in new advance’ Reuters (Toronto, 26 January
2015).
276
—, ‘Ukraine crisis: 'Dozens killed' in east as Minsk talks open’ BBC News (London, 31 January 2015)
<www.bbc.com/news/world-europe-31074772> accessed 24 April 2019.
58
site not yet under control of the pro-Russian forces was the Artemivsk highway. This
highway was conquered by the pro-Russian forces on the 10th of February.
This is where PMSC Wagner comes in the picture. Although it has been reported that this
PMSC has been involved in various situations of armed conflict, the evidence of such
activity left matters open. Numerous mentions of mercenaries in the region have been
made but those could never be traced back to the PMSC. 277 However, there is more
certainty about the involvement of PMSC Wagner in the battle of Debaltseve. 278 Some
sources claim that Wagner fighters were accompanied by several KAMAZ-43269 “Vystrel”
mine resistant ambush protected vehicles (MRAPs).279 Other sources state that Wagner
was involved in the operation of closing the kettle, which refers to final stages of the
battle of Debaltseve.280 However, such information needs to be handled with care as the
news source “Strana” has been accused of spreading fake news in the past.281 In this
context, it can be assumed that PMSC Wagner was active during the battle of
Debaltseve, which does not necessarily mean that they were there on behalf of the
Russian government as some Ukrainian sources proclaim. Above of this, it is not the
intention of this work to discuss the legality of the use of PMSCs but to analyse how such
actors should be qualified according to the rules of IHL.
As this battle took place between Ukrainian and pro-Russian forces and the evidence on a
clear involvement of the Russian government is circumstantial the situation should be
classified as a situation of a non-international armed conflict.282 The following assessment
will therefore be based on the rules applicable to a NIAC.

For starters, PMSC-personnel can, in this case, be excluded from qualifying as belonging
to the armed forces of the legitimate government as this would entail for the PMSC-
277
Amos, Howard and McElroy, Damien, ‘Ukraine withdraws from Luhansk airport after 'Russian tank column'
attack’ The Daily Telegraph (London, 1 September 2014).
278
Quinn, Allison, ‘Vladimir Putin sent Russian mercenaries to 'fight in Syria and Ukraine’’ The Daily Telegraph
(London, 30 March 2016); Валерия Ивашкина, Юлиана Скибицкая, ‘Частный диверсант. Все что известно о
таинственном Вагнере’, Strana (Москва, 1 апреля 2016) <https://strana.ua/articles/rassledovania/6801-
tajna-vagnera-chto-delayut-chvk-na-donbasse.html> accessed 20 May 2019.
279
DRFLab ‘#MinskMonitor: Wagner’s Role in Key Ukrainian Battle Revealed’ (Medium, 12 juli 2018)
<https://medium.com/dfrlab/minskmonitor-wagners-role-in-key-ukrainian-battle-revealed-95ee8ce133fe>
280
Michael Weiss, James Miller, ‘Putin Is Winning the Ukraine War on Three Fronts’ Daily Beast (New York, 26
January 2015) <https://www.thedailybeast.com/putin-is-winning-the-ukraine-war-on-three-fronts> accessed
20 May 2019.
281
Strana is frequently mentioned in this blog trying to counter fake news and disinformation see
<https://www.stopfake.org/nl/?s=strana.ua> accessed 28 May 2019.
282
Grazvydas Jasutis, ‘The Conflict in Eastern Ukraine (Donbass): Dire Consequences and Zero Reconciliation’
in Annyssa Bellal, The War Report: Armed Conflicts in 2018 (Geneva Academy 2019) 149-156; ‘Non-
international armed conflicts in Ukraine’ (RULAC) <http://www.rulac.org/browse/conflicts/non-international-
armed-conflicts-in-ukraine> accessed 28 May 2019.
59
employees to be incorporated into the armed forces of the Ukrainian State. From the
sources this work relies on the PMSC was fighting on the side of the pro-Russian forces.
Logically it must be explored if the PMSC-employees belong to the organized armed
opposition groups, which in this case are the pro-Russian forces of the Donetsk People’s
Republic or Luhansk People’s Republic.283
So, the focus on this situation is assessing whether the employees belong to an
organized armed opposition group. Some are proponents of a generic interpretation of
the term “belonging to” which makes sense for the application of the principle of
distinction. Meaning, that even if the PMSC employee is not formally incorporated into
the organized group it can be assumed that he belongs to the armed opposition group
based on the factual behaviour.284 This factual behaviour can be deduced from the fact
that they were fighting alongside the pro-Russian forces hence, a de facto relationship
between the two can be established. It should be iterated that a NIAC does not have
combatant status. In this context, the use of a generic interpretation for the application
of the principle of distinction indicates less legal consequences at first sight. However,
there are no formal criteria that could determine the threshold of this factual link
between an organized armed group and a PMSC employee. The silence of treaty and
Customary IHL and a lack of case law leaves many question marks in this regard.
However, from the reasoning behind the principle of distinction it seems more than
logical that a generic use of the term “belonging to” should be. Due to the little evidence
on the exercising of combat functions by PMSC Wagner it is more than reasonable to
qualify them as civilians directly participating in hostilities. The reasoning of treaty and
Customary IHL also says that in situations of doubt the person should be qualified as a
civilian. This however, requires a case by case approach on an individual basis.
Unfortunately, there is not enough factual information that can be retrieved from open
source material to test whether an individual fulfilling the three criteria, threshold of
harm, direct causation and belligerent nexus. Given the source material, such
assessment is comparable to the search for a needle in a haystack.
283
ibid.
284
Commentary on the Additional Protocol s I and II, para. 4463; Nils Melzer, ‘The Principle of Distinction
Between Civilians and Combatants’ in Andrew Clapham and Paola Gaeta, The Oxford Handbook of International
Law in Armed Conflict (OUP 2015) 314-317; Commentary on Geneva convention III, 57.
60
7.3.2 Central African Republic
Russian PMSC Wagner has repeatedly been mentioned in several articles on their active
participation in the Central African Republic. The publicity on Wagner spiked after July
2018 when three journalists, known for their investigation on the activities of Wagner on
the Central African Republic’s territory, were killed. The one behind the killings is up until
today not formally confirmed but it has raised the attention of Wagner’s involvement in
the conflict zone. Wagner is known to be there for the protection of the government and
several facilities, such as mining facilities. Other tasks involve the training of the
government forces. Some sources report of Wagner not only working for the government
but that they are also engaged in rebel activities. A video made by one of the deceased
journalists showed how Wagner employees were operating in rebel-held territory.285 It is
no surprise that Wagner’s activity in the Central African Republic sparked shortly after
the Russian Federation showed its interest and became involved in the region.286 On the
other hand, Reuters was unable to confirm that Wagner is in the Central African
Republic.287 Even though the information coming from these sources are difficult to
confirm it is still important to discuss certain scenarios and try to classify certain actors in
this specific situation. Based on the description and nature of the conflict, as will be
described below, the rules of IHL will be applied on several hypotheses.

As the conflict in this country can be qualified as a non-international armed conflict, the
scope of rules of a NIAC are applicable.288 So, the first step is checking whether the
PMSC belongs to the armed forces of the legitimate government. The term “belonging to”
is not specified in IHL. However, the Montreux Document, explains that “belonging to”
refers to a formal incorporation of the PMSC-personnel into the armed forces. However,
some are in favour of a more generic term for the purpose of the principle of direct
participation in hostilities. From a generic interpretation it could be assumed that there is
a de facto link between the government and the PMSC employee in the hypothesis that
the PMSC employees exercise combatant function.
285
Neil Hauer, ‘Russia’s Favorite Mercenaries’ (The Atlantic, 27 August 2018)
<https://www.theatlantic.com/international/archive/2018/08/russian-mercenaries-wagner-africa/568435/>
286
Gabriella Gricius, ‘Russia’s Wagner Group Quietly Moves into Africa’ (Riddle, 11 March 2019)
<https://www.ridl.io/en/russia-s-wagner-group-quietly-moves-into-africa/> accessed 20 April 2019.
287
Aaron Ross, ‘How Russia moved into Central Africa’ Reuters (Toronto, 17 October 2018)
<www.reuters.com/article/us-africa-russia-insight/how-russia-moved-into-central-africa-idUSKCN1MR0KA>
288
Giulia Marcucci, ‘Central African Republic: Sectarian and Intercommunal Violence Continues’ in Annyssa
Bellal, Annyssa Bellal, The War Report: Armed Conflicts in 2018 (Geneva Academy 2019) 93-101; ‘Non-
international armed conflict in the Central African Republic’ (RULAC)
<http://www.rulac.org/browse/conflicts/non-international-armed-conflict-in-the-central-african-republic>
61
However, as mentioned in the previous section, some sources claim that Wagner is
operating on rebel-held territory. The criteria to be qualified as “belonging to an armed
opposition group” is enshrined in Additional Protocol I. 289 Whether this rebel group can be
considered as an armed opposition group according to the rules of IHL is another
exercise that is crucial to attach the PMSC-personnel to this organized armed opposition
group. There has to be a certain level of organization, a responsible command, the group
must exercise control over a part of the territory where this group can conduct sustained
and concerted military operations and they must be able to implement the Protocol. 290 In
this case it is difficult to retrieve information on what functions the PMSC is exercising
and especially for which rebel group. However, in the hypothesis that they exercise
combat functions for the rebel group which meets the criteria to be qualified as an armed
opposition group, the PMSC employees could qualify as belonging to this group based on
a functional and generic interpretation.
Again, due to circumstantial evidence and no further clarification from treaty and
Customary IHL and a lack of case law such assumption is doubtful. As seen in the
previous case study the logical reasoning would be to qualify them as civilians. Similar to
the reasoning of the previous case study a case-by-case approach on individual basis is
required to assess if the employee is directly participating in hostilities or exercising a
continuous combat function.
7.4 The curious case of Venezuela
At the beginning of January 2019 several news sources have reported that PMSC Wagner
was sent to Venezuela for the protection of Nicolas Maduro. 291 The Russian government
denies any activity of PMSC Wagner on Venezuelan territory. Ever since 2010, Venezuela
has occurred in a crisis. The situation has been deteriorating ever since. In September
2018, the UN has characterized the situation as a humanitarian crisis.292 The crisis
displaced millions and seems to be on the verge of turning into a military
289
Rule 1, 25, 27, ICRC Customary International Humanitarian Law Vol. I; art. 3, 4(1), 7(1), 9(1), 13
Additional Protocol II, art. 8(2)(e)(i) Rome Statute of the International Criminal Court; Commentary on the
Additional Protocols I and II, para. 4653.
290
Hadžihasanović & Kubura (Judgement) ICTY-IT-01-47-AR72 (16 July 2003) para. 16-17.
291
Maria Tsvetkova, Anton Zverev, ‘Exclusive: Kremlin-linked contractors help guard Venezuela’s Maduro-
sources’ Reuters (Toronto, 25 January 2019) <www.reuters.com/article/us-venezuela-politics-russia-
exclusive/exclusive-kremlin-linked-contractors-help-guard-venezuelas-maduro-sources-idUSKCN1PJ22M>
accessed 24 May 2019; Andrew Roth, ‘Russian mercenaries reportedly in Venezuela to protect Maduro’ The
guardian (London, 25 January 2019) <www.theguardian.com/world/2019/jan/25/venezuela-maduro-russia-
private-security-contractors> accessed 24 May 2019; Anna Varfolomeeva, ‘Are Russian “mercenaries in
Venezuela? What we know’ The Defense Post (Washington D.C., 25 January 2019)
<https://thedefensepost.com/2019/01/25/russian-mercenaries-venezuela-pmc-wagner/> accessed 24 May
2019.
292
Rocio Cara Labrador, William Merrow, ‘The Venezuelan Exodus’ (Council on Foreign Relations, 5 March 2019)
<www.cfr.org/article/venezuelan-exodus> accessed 24 May 2019.
62
confrontation.293 With the U.S. and several Latin American governments recognizing
president Guaidós interim presidency and Russia showing its readiness to defend
Venezuelan territory, the geopolitical tensions between the U.S., Venezuela and The
Russian Federation become exposed.294 So far the situation has increased internal
tensions and has led to the breaking of diplomatic relations between the U.S. and
Venezuela. However, the U.S. is not retreating their diplomatic personnel which puts the
situation at risk. In case the personnel of the U.S. would be threatened it is very likely
that this could spark an intervention from the U.S. and a reaction from the Russian
government. However, at this stage the situation in Venezuela cannot be classified as an
armed conflict. There is a series of ongoing protests, violence outbreaks and
interventions from the police but that is not sufficient to reach the threshold of an armed
conflict. An armed conflict in this case would require an actual intervention against the
will of the legitimate government or for the protestors to reach a certain level of
organization, qualifying as an organized armed opposition group.295 The first option
already poses difficulties as it is not entirely clear who the legitimate government in
Venezuela is. Regarding the protestors organizing themselves into an organized armed
force is also not self-evident as several requirements must be met. For instance, they
must be able to reach a level of organisation for the purpose of conducting military-like
operations within the territory of the State.
From the above it looks like treaty and Customary IHL are not applicable in the case of
Venezuela. However, the presence of PMSC Wagner raises some questions. Could the
company be qualified as an independent organized armed group? Even if they would
meet the criteria to be qualified as such an important question remains. Who is
considered as the legitimate government in this situation? Besides that, PMSC-Wagner is
active in Venezuela for the personal security of Maduro and at this point, there is no
reason to suspect nor is there enough proof that they are exercising combatant
functions.296 However, depending on the development of the situation the activities of
Wagner may change according to the rules of an IAC or a NIAC.
293
—, ‘Venezuela – A Rough Road Ahead’ (Crisis group, 28 January 2019) <https://www.crisisgroup.org/latin-
america-caribbean/andes/venezuela/venezuela-rough-road-ahead> accessed 24 May 2019.
294
ibid.
295
—, ‘Venezuela: Protests, armed conflict and international humanitarian law’ (ICRC, 26 July
2017)<www.icrc.org/en/document/venezuela-protests-armed-conflict-and-international-humanitarian-law>
296
Monthly 21.
63
7.5 Conclusion
From the case studies, the majority of Russian PMSC personnel will most likely be
qualified as civilians that are or are not directly participating in hostilities. The
assessment of directly participating in hostilities in an IAC and NIAC is exercised in a
similar way. In a practical view, this is not always an easy task for the one engaging in
the conduct of hostilities. In a way, it seems reasonable to assume that such actors could
be linked to the armed forces or armed opposition groups. The case studies also clarified
that a generic interpretation of belonging to a party to the conflict provides more
flexibility in this regard. However, such approach does not come without any risks. such
interpretation can lead to far more people falling within that scope of application.
Meaning that much more people could be considered as a military target, which goes
against the reasoning of treaty and Customary IHL. Without more specified criteria on
what “belonging to” means it is dangerous to use such broad interpretation as this could
cause more harm and arbitrary targeting when bluntly applied.
64
8 Rethinking International Humanitarian Law with
regard to the use of Russian PMSC activity?
8.1 Introduction
This chapter is the final piece of this research project. It aims at taking into account all
facts and findings from previous chapters and will try to take a clear position on the use
of Russian PMSCs and how they affect treaty and Customary IHL, especially towards the
principle of distinction and legal status of PMSCs.
8.2 International Humanitarian Law sufficient to regulate and

control PMSCs?
The PMSC in general, is not a category that treaty and Customary IHL anticipated for. For
the purpose of the principle of distinction, those actors fulfilling combat functions should
be qualified as legitimate targets on the battlefield. It is therefore tempting to qualify
them as combatants or in other words, a category of persons not protected from direct
attack. However, the case studies show that qualifying PMSC personnel as such is not
always easy due to the requirements set forward by treaty and Customary IHL. From the
structure of treaty and Customary IHL, a quasi-combatant status is not an option. 297 This
research showed that most actors will fall within the scope of the civilian status, hereby
confirming the theory supported by the Montreux Document 298 as well as the treaty and
Customary IHL which advocate for the presumption that in case of doubt the person
must be qualified as a civilian.299 Apart from the case in Venezuela, Russian PMSCs it is
highly likely that Russian PMSCs are involved in combat activities. However, PMSCs can
provide a wide spectre of activities such as security services, etc. which do not
necessarily entail combat activities. Although, civilian status protects such actors from
direct attack, this status is also flexible enough as it makes it possible to conduct a case-
by-case analysis on the direct participation in hostilities of each PMSC employee.
However, as chapter five already mentioned, the notion on direct participation in
hostilities is not always easy to apply given the ambiguity and unclarity surrounding it.
Another problem in qualifying such actors as civilians lies in the hard reality that it blurs
the already fine line between the civilian population already present in an armed conflict
297
impact on their regulation’ (2006) 88 (863) International Review of the Red cross 583, 593.
298
Statement 24, the Montreux Document 14.
299
Humanitarian Law (ICRC 2009) 23, 74-76.
65
and such PMSC employees. In reality, this affects the application of the principle of
distinction as it becomes more difficult for lawful combatants to distinguish civilians and
those PMSCs who are involved for security purposes from those taking direct part in
hostilities.300
Another reality that must be dealt with is that the use of such companies is not going to
downsize any time soon. As many States still perceive the use of such companies as
beneficial.301 In Russia’s case the great benefit lies in the fact that such actors can be
used to circumnavigate domestic legislation, international principles and rules that may
prohibit the use of force outside of their territory. First of all, PMSCs are still inexistent in
their domestic legislation. De jure they do not exist, and the Russian government uses
the argument that such companies do not exist on a very regular basis to avoid a link
between Russian PMSCs and the Russian government. However, several research papers
come to the conclusion that PMSC indeed exist and that the Russian government uses
them to conduct their foreign policies.
There is a need for specific regulations regarding the use and activities of PMSCs as well
as clarifying the principle of distinction between civilians and combatants in regard to
PMSCs. IHL does not imply a category of quasi-combatants however, the creation of
various categories has been done in the past. A clear example is the creation of the
mercenary status and the status of civilians accompanying the armed forces in an
international armed conflict.302
8.3 A call for regulation without consensus on approach
Various tools and instruments demonstrate that the majority of stakeholders agree that
PMSCs should be regulated. However, not everyone shares the same opinions on the
means and methods to do so. Document A/HRC/36/36 revealed some of these
differences.303 While some are convinced an international convention is necessary, others
feel self-regulation combined with international and national obligations should be
sufficient. Besides that, some States feel uncomfortable referring to specific standards
300
MN Schmitt, ‘Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian
Employees’ (2004-2005) 5 Chicago Journal of International Law 511, 539.
301
Report 31IC/11/5.1.2 of the 31st International Conference of the Red Cross and Red Crescent, International
Humanitarian Law and the challenges of contemporary armed conflict’ 2011 ICRC, 34.
302
Renee De Nevers, ‘Private Security Companies and the Laws of War’ (2009) 40 (2) Security Dialogue 169-
190; JR Heaton, ‘Civilians at war: reexamining the status of civilians accompanying the armed forces’ (2005)
57 A.F.L. Rev. 155, 192 (157-195).
303
United Nations Human Rights Council, Report of the open-ended intergovernmental working group to
consider the possibility of elaborating an international regulatory framework on the regulation, monitoring and
oversight of the activities of private military and security companies (A/HRC/36/36 11-29 September 2017).
66
because they have not been universally drafted and accepted and were developed
separately from the United Nations process.304
From the above it is clear that just one type of regulation is not an option. Therefore, a
multi-layered “top-down/bottom-up” approach could be the best way to generate a
constructive legal framework. “Bottom-up” layers would include, domestic legislation and
self-regulation and are just as important as the international framework which functions
as a top-down layer.305 Together they should create one comprehensive framework to
regulate the activities of PMSCs.
National legislation is often the first step to address and regulate a certain issue and can
adapt swiftly to new phenomena. 306 However, the case of Russia clearly indicates that
relying solely on domestic legislation can be a risky bet. Political struggles and legislation
are blocking initiatives to legalize and regulate the industry within the Russian
Federation. Besides that, the transnational character of this industry and especially its
activity in armed conflict is something that states alone cannot handle by acting solely at
the domestic level. Without harmonizing those frameworks, the risk of PMSCs shopping
in the various legislative frameworks will increase. Therefore, relying on domestic
legislation alone would be useless and less effective without a framework connecting and
coordinating these initiatives at an international level.
However, focussing on the creation of an international framework alone is a time-

consuming activity and holds the risk that such instrument will not be able to keep up
due to the ever-evolving nature of this industry. As mentioned previously, national
legislation could be more equipped to translate these changes into regulation given the
fact that the State is usually swifter in adapting certain rules. However, as PMSCs are the
regulated subject it can only be useful to listen to what the industry has to say and
include them as much as possible into the process of creating a legal framework. Self-
Regulation can be considered as another layer complementing the bigger regulatory
framework. A comprehensive framework should therefore include legislation, regulation
304
Most African countries are not keen on referring to the Montreux Document and are more in favour of an
international instrument adopted through the United Nations see Tshepo T. Gwatiwa, ‘Private Military and
Security Companies Policy in Africa: Regional Policy Stasis as Agency in International Politics’ (2016) 44 (2)
South African Journal of Military Studies 68, 70.
305
Sarah Percy, ‘Regulating the Private Security Industry: A Story of Regulating the Last War’ (2012) 94 (887)
International Review of the Red Cross 941, 958-960.
306
67
and monitoring at an industrial, national, regional and international level.307 For the
purpose of clarifying this approach, a schematic illustration is included at the end of this
page.
8.4 Conclusion
It is clear that the thinking process on this topic is far from finished. In theory, treaty
and Customary IHL are sufficient to apply the principle of distinction. However, in reality
the applicability of this principle seems to be surrounded by complexity due to the
increasing activity of non-State actors and civilians on the battlefield. Without proper
clarifications on how to apply the principle of distinction as well as the notions and terms
accompanying this principle, it becomes rather difficult for lawful combatants engaging in
the conduct of hostilities, to distinguish protected persons from lawful targets. Given the
industries activaties on global scale, any attempt of creating a legal framework should be
generated through a mulilayered approach.
Anne-Marie Buzatu, European Practices of regulation of PMSCs and Recommendations for Regulation of
307
PMSCs through International Legal Instruments, (DCAF 2008) 18
68
9 Concluding Remarks
The end of the Cold War came with some changes. Peacetime made room for the liberal
thinking of governments, increasing unemployment rates in the military sector and the
battlefield lost its international character and moved towards more urban settings.
Today, a warzone in which PMSCs are not present is unimaginable. It would be naïve to
think these non-State actors have no influence on the applicability of IHL. As wars are
being fought in more urban settings number of civilians and other non-State actors on
the battlefield complicates the applicability of IHL. Western-like PMSCs have been active
in such situations for several years now. They seem to have more security tasks and the
majority of those are often qualified as civilians yet, it is not unimaginable that they
encounter situations of combat while fulfilling their contractual duties. That Russian
PMSCs are a more recent phenomenon is not entirely true. The Russian State has a
history of relying on non-State actors such as Cossacks, mercenaries, etc. to fight on
their behalf. However, it is true that the development of PMSCs has gone under the radar
until rather recently. Where the Russian Federation is involved, activities of Russian
PMSCs will not be difficult to spot. Their activity in Syria has definitely put them on the
map. The major losses of PMSC Wagner in battles like Palmyra and Deir ez-Zor indicate
that Russian PMSCs are often involved in direct combat. For this reason, it was
interesting to assess whether Russian PMSC-personnel could qualify as combatants and
become eligible for combatant privilege and POW-status.
Although this possibility is not entirely excluded, the case studies showed that Russian
PMSCs will most likely fail to meet the requirements to be qualified as a combatant.
Some however, interpret the terms “combatant”, “armed forces” or “armed opposition
groups” in a generic way. They assume PMSC personnel can be linked to the armed
forces by establishing a factual or functional link however, the criteria to establish such a
link are not specified. So even if PMSC-personnel de facto exercise a combat function and
fight for one of the parties to the conflict, the majority will be classified as civilians taking
direct part in hostilities. Meaning that these people usually fight without the combatant
privilege, they are not immune to the jurisdiction of the State on whose territory they
fight, they will often not qualify for POW-status and even if they fight according to the
laws of armed conflict, they remain a military target. From this it can be concluded that
there are not many incentives for PMSCs to fight according to IHL. This will most likely
result in PMSC-personnel engaging in combat activities without respect for IHL which will
only add more suffering to those already enduring the horrible acts of violence.
69
In the absence of a legally binding framework regulating the activities of PMSCs one
must rely on the general principles of the law of armed conflict. However, several
voluntary and soft law initiatives, such as the Montreux Document and the ICoC, indicate
that the phenomenon is acknowledged internationally and the urge of regulating and
setting up international standards for this industry can no longer be denied. These
developments are of great importance as soft law and voluntary codes of conduct give us
more clarity on how IHL must be applied on these actors.
International standards and voluntary codes of conduct do not create new rules. They
simply recall and explain how IHL should be applied and interpreted in situations of
armed conflict. Here lies the exact weakness of this system because IHL has several
ambiguities and is at times surrounded by uncertainty. Chapter five exposed several
issues regarding the principle of distinction and the legal status of several actors on the
battlefield. Customary and treaty IHL sets up rules and principles that are more logical to
apply in the situation of an armed conflict on an open battlefield than in urban settings
where civilians are increasingly involved. In the latter context, these rules and principles
become rather vague as several terms are not further specified.
Upholding the mission of IHL, making war more humane, it can be said that IHL is
adequate to deal with these actors, yet several aspects require more specification.
Especially, defining the terms “combatant”, “civilian”, “belonging to” is very important.
Besides that, a further development of the rules governing NIACs is necessary in this
context as the majority of armed conflicts are NIACs.
In reality, specifying such rules entails a long process and requires case-law, doctrine
and the treaty making powers to act accordingly to the reasoning of what has been
specified through the doctrine and cases. The same can be said about the creation of a
separate convention on the use and activities of PMSCs. They both require a lot of time.
Even though it is surprising that there are rules for situations of inhumanity, war remains
a human activity and may therefore be a subject to legal rules. The key to regulating
PMSCs is to continue the efforts in the creation of a legally binding framework on the use
and activities of PMSCs.
70
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Russian Private Military and Security

Promotor: Stefaan Smis

3 Defining the Private Military and Security Industry ..................................... 10

4 General legal framework regulating PMSCs .................................................. 13

5 The principle of distinction and the status of PMSC-Personnel under

6 The Russian Federation and PMSCs .............................................................. 41

7 From Russia With Wa(gne)r: Cases and perspectives on the applicability of

8 Rethinking International Humanitarian Law with regard to the use of

9 Concluding Remarks ...................................................................................... 69

The methodology of this research entails an analysis of international standards that

The increasing involvement of PMSCs in situations of armed conflict raises concerns

4.2 International Standards regulating PMSCs

4.2.1 The Montreux Document

4.2.2 The International Code of Conduct Association

PMSCs often operate in complex environments which complicates the determination of

Self-regulation is often defined as the process whereby members of an industry, trade or

Self-regulation in the PMSC-industry is different from this description because it relies on

Another category of Self-regulation is those developed by industry associations.78 In

The principle of distinction as applied in international armed conflicts is enshrined in Rule

5.2.1 Armed Forces and Combatant Status

Within this context, PMSC-personnel exercising a combat function, hence directly

5.2.1.1 PMSC employees belonging to the State Armed Forces

According to the Montreux Document, PMSC-personnel must be formally incorporated

Direct participation in hostilities has a few important elements. “Participation” and

The ICRCs Interpretive Guidance sets up guidelines to determine whether a civilian is

According to article 4 A (4) GC III there is a category of civilians accompanying the

5.3 The principle of distinction in Non-International Armed

Applying the principle of distinction in a Non-International Armed Conflict (NIAC) comes

5.3.1 Persons belonging to the Armed Forces

5.3.2 Persons belonging to Organized Armed Groups

There seem to be two ways of qualifying PMSCs as persons belonging to an armed

6.2 Mapping the Russian PMSC-industry

6.3 Regulating the Russian PMSC-industry

6.3.1 Adopting legislation

6.3.2 Legal obstacles

2011) <https://ria.ru/20120411/623227984.html> accessed 20 May 2019.

6.3.3 Political obstacles

7.2.1 The battle of Deir ez-Zor240

7.2.1.1 Applying the principle of distinction

7.3.1 Battle of Debaltseve

7.3.1.1 Applying the principle of distinction

7.3.2.1 Applying the principle of distinction

7.4 The curious case of Venezuela

8.2 International Humanitarian Law sufficient to regulate and

8.3 A call for regulation without consensus on approach

However, focussing on the creation of an international framework alone is a time-

PMSCs through International Legal Instruments, (DCAF 2008) 18

Geneva Convention relative to the Treatment of Prisoners of War (signed 12 August

Конституция Российской Федерации, 25 декабря 1993 года (Constitution of the

Act 108 of 1996 Constitution of South Africa

Закон РФ от 11 марта 1992 г N 2487-I "О частной детективной и охранной

SOFT LAW INSTRUMENTS

International Law Commission, Draft Articles on Responsibility of States for

International Code of Conduct for Private Security Service Providers (Swiss

International Stability Operations Association ISOA Code of Conduct (version 13, 20

United Nations Security Management System, Security Management Operations Manual:

Hadžihasanović & Kubura (Judgement) ICTY-IT-01-47-AR72 (16 July 2003)

Targeted Killing Case (Public Committee v Government of Israel) (Judgement) 2006

Ayres I, John Braithwaite, Responsive regulation: Transcending the Deregulation Debate

Buzatu A, European Practices of regulation of PMSCs and Recommendations for

David E, Principes de droit des conflict armés (Bruylant 1994) 792