Armed Conflicts Private Military

JURIDICUM
Private Military and Security Companies in Armed

Conflict
Privatisation of Violence as a Challenge to Contemporary
International Humanitarian Law
Hanna Blüme
VT 2021
RV101G, Rättsvetenskaplig masterkurs med examensarbete, 30 högskolepoäng
Examinator: Erika Lunell

Handledare: Mais A.M. Qandeel
Abstract
The private sector has been deeply involved in all facets of conflict and security throughout
history, especially considering the extensive use of mercenaries. Today, the private military and
security industry represent the modern and commercialised provision of military and security
services that is increasingly outsourced in armed conflicts around the world. However, while
companies are not subjects of public international law, the rules and principles governing the
operation of private military and security companies in armed conflict rather relates to the
individuals hired by the companies; the private contractors. Often linked to private contractors’
close proximity to the tactical battlefield, their sometimes controversial services and role in
armed conflict are recurrently subject to debate. Numerous incidents involving private
contractors resulting in civilian casualties have sparked not only a political debate, but also a
legal one.
In parallel to the episodes of abuses committed by private contractors during armed conflict,
the international community has tried to adequately respond to the increasing market demand
by proposing both soft law and hard law instruments at an industry and international level.
However, the success of such attempts have been limited. Thus, looking at the international
humanitarian law legal framework regulating the means and methods of warfare, private
military and security company personnel are nevertheless bound by certain minimum rules and
principles by virtue of their customary nature.
This thesis analyses the principle of distinction, as one of the cardinal principles of international
humanitarian law. The principle of distinction is essential to the determination of private
contractors’ legal status as either civilians that may not take direct participation in hostilities
and are to be spared from direct attack, or, combatants with the privilege to directly participate
in hostilities at the expense of being lawful targets of attack. The thesis concludes that personnel
of private military and security companies are generally considered to be civilians provided that
they are not formally incorporated into the regular armed forces of a party to a conflict.
However, the coercive nature of these companies’ services may, in certain cases, challenge this
contradistinctive and assumptional legal status of private contractors.
The presence and use of private military and security companies in armed conflict in general,
and private contractors’ vague legal status in particular, comes with legal implications. First, a
systematic weakening of the principle of distinction which may ultimately jeopardise the
protection of ordinary civilians. Secondly, a lack of accountability for violations of international
humanitarian law (and/or international human rights law). And thirdly, increased risks for the
safety of private contractors themselves. Thus in the absence of specific legal regulation for the
private military and security industry, and responsive to the comprehensive negative influence
private contractors have on international humanitarian law, this thesis suggests the adoption of
a new hard law instrument on the matter. The situation calls for legally binding provisions
specific to this phenomenon as well as clarification on the legal status of private contractors,
or, otherwise the introduction of a new special status exclusive to these actors. The thesis
moreover suggests that future regulation must address and resolve issues of outsourcing
traditional State functions related to the use of force, the lack of effective industry oversight,
and jurisdictional concerns to increase accountability. Finally, the suggested legal instrument
must set out minimum standard procedures for the selection, authorisation and contracting of
PMSCs.
Table of Contents
1. Introduction .......................................................................................................................... 1
1.1 Rise of the Private Military and Security Industry and Modern Developments .............. 1
1.2 International Humanitarian Law and Armed Conflict ..................................................... 4
1.3 Purpose............................................................................................................................. 5
1.4 Delimitation ..................................................................................................................... 7
1.5 Method and Material ........................................................................................................ 8
2. Private Military and Security Companies ....................................................................... 10
2.1 Generic Meaning ............................................................................................................ 10
2.2 Scope of Services ........................................................................................................... 11
2.3 International Attempts to Regulate the Private Military and Security Industry ............ 15
2.3.1 The Montreux Document ........................................................................................ 15
2.3.2 The International Code of Conduct......................................................................... 16
2.3.3 The UN Draft Convention ...................................................................................... 17
2.3.5 Evaluation of the Initiatives .................................................................................... 19
3. International Humanitarian Law Regulations................................................................ 21
3.1 Mercenarism .................................................................................................................. 21
3.2 The Principle of Distinction ........................................................................................... 24
3.2.1 Definition of a Civilian ........................................................................................... 25
3.2.2 Definition of a Combatant ...................................................................................... 27
3.2.3 Direct Participation in Hostilities............................................................................ 28
3.2.3.1 Threshold of Harm ........................................................................................... 30
3.2.3.2 Direct Causation............................................................................................... 31
3.2.3.3 Belligerent Nexus............................................................................................. 32
3.2.4 Indirect Participation in Hostilities ......................................................................... 33
4. Addressing the Legal Prospects ........................................................................................ 35
4.1 Weakening the Principle of Distinction ......................................................................... 35
4.2 Accountability and Impunity ......................................................................................... 37
4.3 Targetability Risks of the Private Contractors Themselves ........................................... 39
4.4 Final Remarks ................................................................................................................ 41
5. Conclusion .......................................................................................................................... 43
Bibliography ........................................................................................................................... 45
List of Abbreviations and Acronyms
API Protocol (I) Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of International
Armed Conflict (adopted 8 June 1977, entered into force 7
December 1978) 1125 UNTS 3
CIL Customary International Law
DPH Direct Participation in Hostilities
GCIII Geneva Convention (III) Relative to the Treatment of Prisoners of

War (adopted 12 August 1949, entered into force 21 October 1950)
75 UNTS 135
IAC International Armed Conflict
ICL International Criminal Law
ICoC International Code of Conduct
ICRC International Committee of the Red Cross
IDPH Indirect Participation in Hostilities
IHL International Humanitarian Law
NIAC Non-International Armed Conflict
OEWG Open-Ended Intergovernmental Working Group
PMCs Private Military Companies
PMS Private Military and Security
PSCs Private Security Companies
PMSCs Private Military and Security Companies
POW Prisoner of War
UN United Nations
UNHRC United Nations Human Rights Council

1. Introduction
1.1 Rise of the Private Military and Security Industry and
Modern Developments
Outsourcing services that traditionally, and according to Max Weber’s realist understanding of
the modern State which defines statehood as “a human community that (successfully) claims
the monopoly and the legitimate use of physical force [emphasis added] within a given
territory”1, would be considered tasks belonging exclusively to official organs of a State, is not
a new phenomenon. The rise and development of the private military and security (‘PMS’)
industry suggests that there are two overlapping interests which have historically reinforced
one another and thereby contributed to our contemporary, increasingly so privatised, perception
of war. First, the act of fighting for private gains (so-called mercenarism), and second, hiring
outsiders to fight your battles, are ideas that are just about as old as war itself.2 Almost every
past empire has contracted foreign troops and the earliest records of mercenaries serving in
foreign armies rest with King Shulgi of Ur, thus tracing back to 2000 B.C.3
While ancient governments struggled to develop regular armed forces and otherwise
administrative structures, trained private warriors were considered a premium resource that
were to be paid accordingly.4 Motivated by material considerations, private fighters organised
themselves and warfare, just like any other social phenomenon, changed its format over the
course of time. Affairs of conventional, exclusive ‘State nature’ have been adapted to modern
prospects of social structures, economic resources and protection needs, and the privatised war
has continued to thrive ever since. As many countries post the Cold War downsized their
defense sectors and disengaged from strategic areas, trained and technically skilled soldiers and
other military personnel that were left unemployed saw a chance to market their services.5 The
period of a declining use of mercenaries that had taken place up until the 1950s-1970s thus
faced a shift. Broad institutional trends like the globalisation and liberalisation, which were
both aimed at removing and outsourcing governmental functions, created the perfect breeding
ground for the PMS industry to rise.6
1
Max Weber, ‘Politics as a Vocation’ (Lecture, 28 January 1919), p. 1, available at:
<https://www2.southeastern.edu/Academics/Faculty/jbell/weber.pdf> accessed 12 February 2021.
2
Peter W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (1st edn, Cornell University
Press 2008), p. 19.
3
James Larry Taulbee, ‘Reflections on the Mercenary Option’ (1998) 9 Small Wars and Insurgencies 145, p.
146; Kevin H. Govern and Eric C. Bales, ‘Taking Shots at Private Military Firms: International Law Misses its
Mark (Again)’ (2008) 32 Fordham International Law Journal 55, p. 58.
4
Peter W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (n 2), p. 20.
5
James K. Wither, ‘European Security and Private Military Companies: The Prospects for Privatized
‘Battlegroups’” (2005) 3 The Quarterly Journal 107, p. 112-113; Hannah Tonkin, State Control over Private
Military and Security Companies in Armed Conflict (Cambridge University Press 2011), p. 13; Fred Schreirer
and Marina Caparini, ‘Privatising Security: Law, Practice and Governance of Private Military and Security
Companies’ (Geneva Centre for the Democratic Control of Armed Forces [DCAF] Occasional Paper No. 6,
March 2005), p. i and 3-4, available at: <https://www.files.ethz.ch/isn/14077/occasional_6.pdf> accessed 7
March 2021; Joel A.C Baum and Anita M. McGahan, ‘Outsourcing War: The Evolution of the Private Military
Industry after the Cold War’ (SSRN Electronic Journal Article, October 2009), p. 24 and 28, available at:
<https://www.chaire-eppp.org/files_chaire/10_14_2009_TCE_paper.pdf> accessed 4 March 2021; Martha
Minow, ‘Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism and
Democracy’ (2005) 46 Boston College Law Review 989, p. 997.
6
Hannah Tonkin, State Control over Private Military and Security Companies in Armed Conflict (n 5), p. 14;
Peter W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (n 2), p. 49-70; Joanne E. Oxley,
‘Institutional Environment and the Mechanisms of Governance: The Impact of Intellectual Property Protection
on the Structure of Inter-Firm Alliances’ (1999) 38 Journal of Economic Behavior & Organization 283, p. 284;
1
Although the traditional form of mercenaries is regulated separately under international
humanitarian law (‘IHL’) and explicitly prohibited by the International Convention against the
Recruitment, Use, Financing and Training of Mercenaries, and, according to some, therefore
not to be compared with the contemporary set-up of private companies offering military and
security services (which is not prohibited per se), these two forms of materially driven private
actors do have some common features.7 Indeed, one might even ask what actually separates
private military and security companies (‘PMSCs’) from the traditional definition and act of
mercenarism.8 For despite the long history of State outsourcing of the use of violence, the
parallel emergence of organised private companies offering military-security related services
to clients involved in armed conflict has been a significant shift in the IHL discourse in modern
time.9 PMSCs have had key roles in numerous conflict regions around the world over the last
two decades, and the PMS industry in general has developed rapidly, yet carefully, alongside
the act of mercenarism.10
Often motivated by its (at least short term) cost and time effectiveness, the use of private
businesses may be a much valuable tool for many States.11 The conflicts in Angola and Sierra
Leone are prominent examples in which the South African-based company Executive Outcomes
was contracted by the two States to assist bringing their respective internal conflicts to an end
and furthermore stabilise the region when national military capacities were limited; and it did
so with great success.12 The door for further privatisation had now been widely opened, and
more recent conflicts in Afghanistan and Iraq accelerated the trend. Contracted companies from
the private sector have undertaken crucial military and security tasks and in particularly the
Iraqi armed conflict, the warfare appeared to be strikingly dependent upon private operatives’
services.13 Services like housing, intelligence gathering, logistical support and military training
of the Iraqi Army and Police, etc., are all services that were of great importance to the overall
war effort, however, they did not go unnoticed of the public’s attention.14
Joel A.C Baum and Anita M. McGahan, ‘Outsourcing War: The Evolution of the Private Military Industry after
the Cold War’ (n 5), p. 5.
7
International Convention against the Recruitment, Use, Financing and Training of Mercenaries (adopted 4
December 1989, entered into force 20 October 2001) 2163 UNTS 75; Scott C. Goddard, ‘The Private Military
Company: A Legitimate International Entity Within Modern Conflict’ (Master Thesis: Faculty of the U.S. Army
Command and General Staff College, 2001), p. iii, available at:
<https://www.globalsecurity.org/military/library/report/2001/pmc-legitimate-entity.pdf> accessed 15 February
2021.
8
Pointing at their shared underlying economic motivation, some claim that PMSCs are just a modern equivalent
to mercenaries, see Ulrich Petersohn, ‘Reframing the Anti-Mercenary Norm: Private Military and Security
Companies and Mercenarism’ (2014) 69 International Journal 475, p. 475 and 491.
9
Aaron Ettinger, ‘Neoliberalism and the Rise of the Private Military Industry’ (2011) 66 International Journal
743, p. 746.
10
‘Battlegroups’” (n 5), p. 107.
11
PMSC personnel generally possess the necessary military skills for conducting their missions prior to being
hired, see Peter W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (n 2), p. 27; Andrea
Schneiker and Elke Krahmann, Capacity Gained – Accountability Lost? Establishing a Better Political and
Regulatory Framework (2016) Transparency International Deutschland, p. 4; Andreas Wenger and Simon J. A.
Mason, ‘The Civilianization of Armed Conflict: Trends and Implications’ (2008) 90 International Review of the
Red Cross 835, p. 840.
12
David Shearer, ‘Outsourcing War’ (1998) 112 Foreign Policy 68, p. 73.
13
Peter W. Singer, ‘War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law’
(2004) 42 Columbian Journal of Transnational Law 521, p. 525 and 538.
14
ibid.
2
Indicated by the episodes of abuses committed by operators of private corporations in Iraq and
Afghanistan, both incidental and intentional violations of the laws and customs of war have
shocked public opinion.15 Investigative reports into systematic human rights abuses committed
at the U.S.’ Abu Ghraib prison in Iraq during the early stages of the Iraq war have concluded
that “[c]ontracting-related issues contributed to the problems at Abu Ghraib prison”16,
emphasising the participation of private contractors working for CACI International Inc. and
Titan Corp.17 Another example case which has received extensive media coverage is an event
at the Nisour Square in Iraq on 16th September 2007, where personnel of the American private
corporation Blackwater were involved in a massive shooting causing 17 civilian casualties and
the wounding of 20 people.18 As argued by Blackwater itself, the lethal scandal occurred as an
unfortunate response to the direct threat allegedly posed by a 20-year old man in an approaching
vehicle to the high value assets protected and transported by Blackwater personnel in a
convoy.19 Later in 2014, four of the contractors from Blackwater responsible for firing
indiscriminately with machine guns on the unarmed crowd on the Nisour Square, were
convicted for their involvement in the massacre.20 However, the convictions were not able
distract nor overrule the bloodshed which had caused protracted international outcry, and as the
four contractors concerned were pardoned by former U.S. President Donald Trump in
December 2020, some commentators have continued to wonder whether PMSCs operate in a
legal vacuum.21 Question marks have also been raised in relation to PMS activities’ dual
influence on both the conventional separating line between the public and private sphere, as
well as the distinction between civilians and combatants; the latter being one of the cardinal
principles of IHL.22
15
Mirko Sossai, ‘Combatting the Legal Side Effects of Privatized War’ (Völkerrechtsblog Article, 9 October
2017) available at: <https://voelkerrechtsblog.org/combatting-the-legal-side-effects-of-privatized-
war/?fbclid=IwAR0gBkr_oQwBsuzuosrdljzISRp0fITAJzE76CM3V8ZxODwrBBbRi-kt3PU> accessed 2 March
2021.
16
George R. Fay, Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade
(2004) AR 15-6, p. 82.
17
For description on the abuses committed, see, for example Seymour M. Hersh, ‘Torture at Abu Ghraib’ The
New Yorker (10 May 2004); Martha Minow, ‘Outsourcing Power: How Privatizing Military Efforts Challenges
Accountability, Professionalism and Democracy’ (n 5), p. 993; Steven L. Schooner, ‘Contractor Atrocities at
Abu Ghraib: Compromised Accountability in a Streamlined, Outsourced Government’ (2005) 16 Stanford Law
& Policy Review 549, p. 555.
18
Michael S. Schmidt, ‘Flexing Muscle, Baghdad Detains U.S. Contractors’ New York Times (15 January 2012);
Kevin H. Govern and Eric C. Bales, ‘Taking Shots at Private Military Firms: International Law Misses its Mark
(Again)’ (n 3), p. 56; Nigel D. White, ‘The Privatisation of Military and Security Functions and Human Rights:
Comments on the UN Working Group’s Draft Convention’ (2011) 11 Human Rights Law Review 133, p. 133;
Blackwater was later re-named Xe Services LLC in 2009 and Academi in 2011, see Jason Ukman, ‘Ex-
Blackwater Firm Gets a Name Change, Again’ Washington Post (12 December 2011).
19
Michael Safi, ‘Trump Pardons Blackwater contractors Jailed for Massacre of Iraq Civilians’ The Guardian (23
December 2020).
20
The prosecutions resulted in life in prison for first degree murder for one of the contractors, and 30 years in
prison for voluntary and attempted manslaughter for the remaining three contractors, see ibid.
21
ibid; Other commentators have claimed that PMSCs and their personnel should be, or perhaps already are,
banned under the existing rules relating to mercenarism, see Mirko Sossai, ‘Combatting the Legal Side Effects of
Privatized War’ (n 15).
22
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, para. 78; Mirko
Sossai, ‘Combatting the Legal Side Effects of Privatized War’ (n 15).
3
1.2 International Humanitarian Law and Armed Conflict
Wars have been waged with rules and limitations aiming to separate and protect the weak from
the strong since time immemorial.23 The historical phenomenon of war has shaped the public
perception of armed force and the resort to it, and humankind has come to the bitter conclusion
that some wars simply cannot be avoided. Therefore, IHL, as one of the oldest branches of
public international law, is a much fundamental legal regime reflecting universally shared
values of armed conflict which seek to limit the means and methods of warfare.24
Commonly referred to as ‘the law of armed conflict’ or jus in bello, IHL is marked by
controversial rules which are recurrently subject to violations, debate and development, and it
is arguably a legal regime that will exist only for as long as armed conflicts – its very key word
– exist.25 With its broad protective scope applicable in times where atrocities, often so
indescribable ones, occur that go beyond both human understanding and words, IHL is
characterised both by its simplicity and complexity.26 For although a majority of the rules and
principles of IHL are quite simple and straightforward, some of them require complex and
sophisticated distinctions and implementations. The way in which IHL seeks to address and
meet the protection needs of the dire reality of armed conflict is mainly by providing substantive
rules based on two overarching objectives. Firstly, it prohibits the use of violence against
persons who are not, or no longer, are taking direct participation in hostilities (‘DPH’).27
Secondly, it restricts the level of violence used to not exceed the amount necessary to weaken
the military potential of the enemy, and thereby achieve the so-called ‘legitimate aim’ of the
conflict.28 To give effect to the comprehensive objectives of IHL, they have been broken down
into general principles resulting in limitations which reinforces its underlying rationale.29
Despite its prominent role in the international legal order, IHL is currently faced with several
major challenges in contemporary armed conflict, of which the privatisation of war stemming
from the expansion of the PMS sector has been listed as one issue.30 It has been argued that not
only does the extensive hiring of PMSCs challenge traditional views on Statehood and the
State’s inherent monopoly on the legitimate use of force in particular, but even more
23
Marco Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in
Warfare (Elgar 2019), p. 5.
24
International Committee of the Red Cross (ICRC), ‘What is International Humanitarian Law?’ (International
Committee of the Red Cross [ICRC] Advisory Service, July 2004), p. 1, available at:
<https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf> accessed 8 April 2021; International Committee
of the Red Cross (ICRC), ‘What are the Origins of International Humanitarian Law?’ (International Committee
of the Red Cross [ICRC] Blog, 7 August 2017) available at: <https://blogs.icrc.org/ilot/2017/08/07/origins-
international-humanitarian-law/> accessed 4 March 2021.
25
International Committee of the Red Cross (ICRC), International Humanitarian Law: Answers to Your
Questions (International Committee of the Red Cross [ICRC] 2015), p. 8.
26
Warfare (n 23), p. 3.
27
ibid, p. 2.
28
ibid.
29
ibid.
30
United Nations Security Council (UNSC) Report of the Secretary-General on the Protection of Civilians in
Armed Conflict (28 October 2007) UN Doc S/2007/643, para. 9; The presence and use of PMSCs in armed
conflict was not mentioned in the ICRC’s last report on challenges of contemporary armed conflicts from 2019,
however it was mentioned in the 2015 report, see International Committee of the Red Cross (ICRC),
International Humanitarian law and the Challenges of Contemporary Armed Conflicts Report (2015) 32nd
International Conference of the Red Cross and Red Crescent 32IC/15/11, p. 59.
4
importantly the very foundation of IHL; that civilians are not to participate in armed conflict.31
For although the mere participation in armed conflicts of persons who are not officially
members of the regular armed forces is far from a new phenomenon, the corporatisation of the
PMS industry and increasing market demand, is relatively new.32 Statistics on the U.S.
Department of Defense funded contractor personnel in the Afghanistan war show that since
quarter 4 of fiscal year 2011, private contractors have outnumbered U.S. troops continuously
with a ratio sometimes close to 3 to 1.33 This is to be compared to the U.S. private contractor to
military personnel ratio from the World War II, which was approximately 1 to 7.34
1.3 Purpose
The academic research on the PMS industry has undergone profound changes since the 1960s
when the literature was mostly centred on mercenarism, and international scholars have
persistently tried to clarify the legal status of PMSCs and investigate their rights and duties
under international law.35 Although today’s legal doctrine has reached some conclusions as to
PMSCs’ role in and impact on armed conflicts, the IHL discourse is nevertheless still marked
by great uncertainty with regards to these companies.
PMS activities are theoretically regulated on three levels.36 Firstly, they are governed by the
contractual relationship established between the contracting State, international organisation,
non-governmental organisation or corporation, and the contracted PMS. This is set out by an
explicit contract between the parties.37 Secondly, activities are regulated by domestic legislation
of the contracting State or party, and generally also by the domestic legislation of the State in
whose jurisdiction the activities are executed.38 Thirdly, PMS activities are regulated by
international law in two regards: at a minimum by the IHL rules and principles that are
applicable by virtue of their customary nature to the individuals carrying out the activities, and
also to some extent by soft law instruments like the Montreux Document on Pertinent
International Legal Obligations and Good Practices for States Related to Operations of Private
Military and Security Companies During Armed Conflict (‘Montreux Document’) and the
31
Global Policy Forum (GPF), ‘PMSCs: Risks and Misconduct’ (Global Policy Forum [GPF]) available at:
<https://archive.globalpolicy.org/pmscs/contractor-misconduct-and-abuse.html> accessed 27 February 2021.
32
Louise Doswald-Beck, ‘Private Military Companies Under International Humanitarian Law’ in Simon
Chesterman and Chia Lehnardt (eds), From Mercenaries to Market: The Rise and Regulation of Private Military
Companies (Oxford University Press 2007), p. 115.
33
Heidi M. Peters, Department of Defense Contractor and Troop Levels in Afghanistan and Iraq: 2007-2020
(2021) Congressional Research Service Report R44116, p. 7-8.
34
Congress of the United States, Contractors’ Support of U.S. Operations in Iraq (2008) CBO Paper Pub. No.
3053, p. 13; Aliya Brown, ‘Prosecuting Private Armies: Could the Uniformed Services Employment and
Reemployment Rights Act of 1994 Provide a Template for Prosecution of Private Military Contractors?’ (2019)
32 The Georgetown Journal of Legal Ethics 435, p. 436-437.
35
Christa Moesgaard, Private Military and Security Companies – From Mercenaries to Intelligence Providers
(2013) DIIS Working Paper 2013:09, p. 5 and 8.
36
Tobias Vestner, ‘Targeting Private Military and Security Companies’ (2018-2019) 57 The Military and the
Law of War Review 251, p. 253-254.
37
ibid; Martina Gasser and Mareva Malzacher, ‘Beyond Banning Mercenaries: The Use of Private Military and
Security Companies Under IHL’ in Ezequiel Heffes, Marcos D. Kotlik and Manuel J. Ventura (eds),
International Humanitarian Law and Non-State Actors: Debates, Law and Practice (Springer 2020), p. 31.
38
Tobias Vestner, ‘Targeting Private Military and Security Companies’ (n 36), p. 254.
5
International Code of Conduct (‘ICoC’).39 However, these latter mentioned non-binding
instruments are applicable only to those PMSCs and States that have voluntarily committed
themselves to such standards. And besides the explicit regulation of the legal status of persons
fighting for private gain as an act of mercenarism, which is set forth in Article 47 of the
Additional Protocol I to the Geneva Conventions of 1949 (‘API’), there is currently no
internationally legally binding instrument on the matter which aims at defining, clarifying or
restricting PMS services specifically.40
There is a common assumption about the general IHL treaty regime saying that the key issue
of contemporary IHL is essentially not a lack of adequate substantive rules protecting the
victims of armed conflict, or that they are unknown or misunderstood, but rather a failure to
respect such rules.41 However, the rapid privatisation of war and the public debate sparked by
the extensive and increasing use of PMSCs in recent armed conflicts, suggest that this
assumption might be challenged. Notwithstanding that PMSCs at large have become an integral
part of many contemporary military operations, their international humanitarian legal status is
arguably still vague as their personnel cannot be definitely ascribed to none of the established
categories of persons under the current IHL framework. And meanwhile international practice
evidently demonstrate that these ill-defined private contractors recurrently embroil into
controversial incidents during their missions in armed conflict, there is nothing indicating that
the hiring of PMSCs will cease.42 Therefore, the importance of determining how IHL applies
to PMSC employees cannot be understated.
Having stated that IHL, through Article 47 of the API, sets out an explicit and codified
definition of mercenaries, the starting point of this thesis is that PMSC personnel are not
mercenaries, but rather employees within a regulated and legal industry. Thus, departing from
the assumption that a vast majority of PMSC personnel are civilians – provided that they are
not incorporated into the regular armed forces of a State – one important legal aspect is that of
whether certain services and activities performed by private contractors during their missions
may nevertheless be considered DPH.43 This question is linked to the issue of whether
individual PMSC personnel, if being responsible for conduct amounting to DPH, can and/or
should be deprived of their fundamental protection afforded to civilians during armed conflict,
and instead be treated as legitimate combatants in accordance with the principle of distinction.
39
Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to
Operations of Private Military and Security Companies During Armed Conflict (17 September 2008) A/63/467-
S/2008/636; International Code of Conduct for Private Security Providers (9 November 2010).
40
Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims
of International Armed Conflict (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3, Article
47.
41
Warfare (n 23), p. 12.
42
Chia Lehnardt, ‘Individual Liability of Private Military Personnel under International Criminal Law’ (2008)
19 European Journal of International Law 1015, p. 1021-1022; Amy Mackinnon, ‘New Report Exposes Brutal
Methods of Russia’s Wagner Group’ Foreign Policy (11 June 2020); Sabrina Tavernise, ‘U.S. Contractor
Banned by Iraq over Shootings’ New York Times (18 September 2007); Renae Merle, ‘CACI and Titan Sued
Over Iraq Operations’ Washington Post (10 June 2004).
43
Gianpiero Spinelli, ‘The Status of Personnel of PMSCs Contractors in Armed Conflict under IHL. Is There
Also a Special Status?’ (Stam Solutions) available at: <https://www.stamsolutions.com/the-status-of-personnel-
of-pmscs-contractors-in-armed-conflict-under-ihl-is-there-also-a-special-
status/?fbclid=IwAR0SlUlwfs78bUsxtEQ41hggu4Shl5w8xDPclihPsgI7wS71LEFDnA2st64> accessed 22
March 2021.
6
“As nonlinear battlefields and asymmetrical methods of warfare come to
characteri[s]e more contemporary armed conflicts, the distinction between
combatant and non-combatant has become increasingly blurred.”44
– James K. Wither, Professor of National Security Studies
To contribute to the common understanding of privatisation and arguably even civilianisation

of armed conflict, the purpose of this master thesis is to investigate the presence and use of
PMSCs in armed conflict to identify any potential legal implications deriving thereof. This is
done by establishing the relevant international legal framework applicable to such companies.
To fulfil its purpose, the thesis asks the following two research questions:
- How PMS activities correspond to the concept of DPH and the emerging concept of
indirect participation in hostilities (‘IDPH’) respectively.
- Whether PMSCs, in the absence of a specific legal regime, compromise IHL and, if so,
how effective legal regulation could be achieved.
1.4 Delimitation
This thesis is focused primarily on the development and use of PMSCs in relation to IHL rather
than international human rights law (‘IHRL’). It shall however be acknowledged that PMSCs’
role in armed conflict have been a recurring issue also with regards to the enforcement of human
rights due to private contractors’ involvement in massive human rights violations. Conceivably,
the implication of PMSC personnel in both torture and civilian massacres have added an extra
layer of complexity to already complicated human rights situations in times of war.45 Besides
this general delimitation, this thesis is delimited in three additional regards.
Firstly, this thesis will neither attempt to assess nor answer in any way the questions of State
responsibility or individual criminal responsibility with respect to potential violations of IHL
or IHRL committed by PMSC personnel during armed conflict in specific cases.46
Consequentially, it will not make any intentional or valued distinction between the so-called
contracting States (the State hiring a PMSC), territorial States (the State in which a PMSC is
conducting its mission) or home States (the State in which a PMSC is registered). For rather
than assessing legal responsibility belonging to individual PMSC personnel or the States or
organisations hiring them, the main aim of this research is to examine the development, general
legal status and potential legal implications arising from of the use of PMSCs in a context of
armed conflict. Secondly, this thesis will not deal with the domestic law of any specific State
44
“Battlegroups”’ (n 5), p. 115.
45
Greg Stohr, ‘Abu Ghraib Case Involving Private Contractor Suit Draws U.S. Supreme Court Interest’
Bloomberg (4 October 2010); David Isenberg, ‘MPRI Couldn’t Read Minds: Let’s Sue Them’ Huffpost (19
August 2010).
46
However, the delimitations specific for this thesis does not remove any importance from the doctrine of State
responsibility for questions of attribution and legal responsibility when violations of international law have been
committed. The ICRC has stated that on that same note that “[s]hould the staff of the [PMSCs] commit
violations of [IHL], the State that has hired them may be responsible if the violations can be attributed to it as a
matter of international law”, see International Committee of the Red Cross (ICRC), ‘International Humanitarian
Law and Private Military/Security Companies – FAQ’ (International Committee of the Red Cross [ICRC]
Article, 10 December 2013) available at: <https://www.icrc.org/en/document/ihl-and-private-military-security-
companies-faq> accessed 12 March 2021.
7
although domestic law does play a significant role in the (self-)regulation of PMS activities
with regards to criminal liability. Thirdly and finally, it will deal exclusively with the issue of
PMSCs in relation to international armed conflicts (‘IACs’), this mainly because the use of
PMSCs in non-international armed conflicts (‘NIACs’) would raise questions about such
companies’ potential role as non-State armed groups. Such controversy would arguably impair
the general assumption that personnel of companies within the discussed industry are
considered civilians by assumption in line with the principle of distinction.
1.5 Method and Material

Since the legal situation and status of PMSCs in armed conflict is vague, this paper assesses the
current international humanitarian legal regime in order to establish the de lege lata relating to
these actors. In doing so, the methodology of this research is based on the traditional legal
dogmatic method.47 By establishing the legal framework governing PMSC personnel and to
enhance identification of potential flaws in the current regulations relating to such individuals,
this thesis will discuss the principle of distinction, as a core principle of the law of armed
conflict, in greater detail. Namely, the concept of DPH and the emerging concept of IDPH will
be thoroughly examined in relation to the nature of the services commonly offered by PMSCs.
This research will also introduce some de lege ferenda arguments for overcoming potential
legal gaps between the theoretical and practical regulation of the PMS industry.
With a view to PMSCs as corporations, the German jurist Lassa Oppenheim once formulated
that the prevailing opinion of the 20th century was that “States solely and exclusively are the
subjects of [i]nternational [l]aw”48. Yet over the course of time, the different branches of
international law have been developed to recognise other legitimate actors like natural persons,
which may be held criminally liable as subjects of international criminal law (‘ICL’).49
However, as regards corporations under public international law, their legal status is still
unclear. Given that there is no international court possessing jurisdiction over corporations as
international actors, and since there is no legally binding mechanism existing which obliges
corporations to account for their use of force, the PMS industry is left to the number of soft law
instruments and initiatives launched by the industry itself, which ascribe these companies some
degree of legal status.50 Such soft law instruments’ relevance for international law more
generally is nonetheless questionable, and PMSCs and their personnel in particular are
subsequently left in an ambiguous position.51 Therefore, an approach focusing on the persons
(the personnel) of PMSCs and the direct applicability of IHL to individuals will be employed
throughout this thesis. Accordingly, the research questions of this thesis will neither be posed,
nor answered, emanating from the view that PMSCs are companies subject of international
47
Anna Hollander and Katarina Alexius Borgström (eds), Juridik och rättsvetenskap i socialt arbete (1st edn,
Studentlitteratur 2009), p. 20; Jan Kleineman, ‘Rättsdogmatisk Metod’ in Maria Nääv and Mauro Zamboni (eds),
Juridisk Metodlära (2nd edn, Studentlitteratur 2018), p. 21-22.
48
Lassa Oppenheim, International Law: A Treatise, Volume 1 (Longmans, Green and Co 1905), p. 18.
49
Jonathan Crowe and Anna John, ‘The Status of Private Military Security Companies in United Nations
Peacekeeping Operations Under the International Law of Armed Conflict’ (2017) 18 Melbourne Journal of
International Law 16, p. 18.
50
Luis Gallegos and Daniel Uribe, ‘The Next Step against Corporate Impunity: A World Court on Business and
Human Rights?’ (2016) 57 Harvard International Law Journal 7, p. 7; Jonathan Crowe and Anna John, ‘The
Status of Private Military Security Companies in United Nations Peacekeeping Operations Under the
International Law of Armed Conflict’ (n 49), p. 18.
51
Peacekeeping Operations Under the International Law of Armed Conflict’ (n 49), p. 18.
8
law.52 Moreover, as this thesis will explore, the separating line between private military
companies (‘PMCs’) and private security companies (‘PSCs’) is in most cases blurred.
Therefore, since armed conflicts include inherent complexities and come with constant
contextual changes that might have an impact on the classification of a company within the
discussed industry, the term ‘PMSCs’ will be used interchangeably to refer to any “corporate
entity which provides on a compensatory basis military and/or security services by physical
and/or legal entities”53 and under which private contractors are employed.
The materials employed in this thesis are chosen in line with the hierarchy of general sources
of law established by the legal dogmatic method, as well as Article 38(1) of the Statute of the
International Court of Justice given the thesis’ focus on IHL as a branch of public international
law.54 Primary sources such as international conventions, customary international law (‘CIL’)
and other general principles of law will hence be given precedence in answering the research
questions of this thesis and fulfilling its purpose. The case-law of various courts will be
examined insofar as they have interpreted international law and attempted to bring clarity to
certain concepts and definitions relevant to the assessment of regulations applicable to PMSC
personnel under IHL. Secondary sources in the form of documents from the International
Committee of the Red Cross (‘ICRC’), in particular the Commentary to the API, the Study on
Customary IHL and the Interpretive Guidance on DPH will be used to comprehend underlying
intentions and scopes of application of the primary sources employed. Lastly, organisational
and scholarly work and arguments will be used to provide additional perspectives to this thesis
and reflect the international development on attempts to regulate the PMS industry.
52
Lindsey Cameron and Vincent Chetail, Privatizing War: Private Military and Security Companies under
Public International Law (Cambridge University Press 2013), p. 289.
53
UN Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the
Exercise of the Rights of Peoples to Self-Determination, ‘Panel on Private Military and Security Companies:
Regulations and National Experience’ (Concept Note, October 2015), p. 2, available at:
<http://ohchr.org/Documents/Issues/Mercenaries/WG/Event2015/ConceptNote.pdf> accessed 23 February 2021.
54
Jan Kleineman, ‘Rättsdogmatisk Metod’ in Maria Nääv and Mauro Zamboni (n 47), p. 21; Statute of the
International Court of Justice (adopted 26 June 1945, entered into force 18 April 1946), Article 38(1).
9
2. Private Military and Security Companies
2.1 Generic Meaning
Neither in IHL treaties nor in CIL are PMSCs and their personnel specifically mentioned or
defined.55 The terminology of ‘PMSCs’ may however refer to various kinds of companies
operating within the same industry, and several synonyms are often used interchangeably in the
context of IHL as the commonly applied abbreviation comprises both PMCs and PSCs.
‘Contractors’, ‘private security contractors’, ‘private military contractors’ and ‘private security
providers’ are only a few examples of synonyms used for describing the staff of PMSCs, some
of which refer exclusively to those having military services as their specific area of expertise,
and some to those focusing on providing security services. However, in the absence of any
explicit legal and coherent definition of what a PMSC entails, such companies are generally
characterised by a financial/material compensation interest rather than by idealistic national
intentions to protect one’s country.56 Attempts to contribute to a universal definition of PMSCs
have too been made by emphasising one of the controversial aspects of PMSCs; namely how
such private companies’ services replace tasks that would traditionally be considered affairs of
sovereign States. Still, international conventions, treaties and agreements relating to IHL do not
give any forthright and unambiguous answer defining PMSCs and their personnel’s status and
capacity in armed conflicts (nor in peace time).57
As suggested by the creation of the Montreux Document in 2008 and the ICoC in 2010, the
international community is in the process of attempting to create a widely accepted definition
of PMSCs. The ICoC, which companies within the discussed industry may accede to, defines
industry rules and principles based on both IHL and IHRL, and it refers to these kinds of
companies as ‘private security service providers’.58 The ICoC states, specifically in its list of
definitions, that such companies are any company “whose business activities include the
provision of Security Services […], irrespective of how such [c]ompany describes itself”59.60
Thus recognising that PMSCs are companies offering a wide spectrum of services, their
classification as a PMC or a PSC is nevertheless not to be based on their own profiling.61 Indeed,
any attempt at differentiating between companies based solely on their involvement in
‘offensive’ or ‘defensive’ operations would be counterproductive for IHL.62 The determination
of a company’s character must rather be made based on the contracted mission and services
agreed between the company and its client on the one hand, and the company’s actual conduct
when carrying out its services on the other hand. This view, which points out the irrelevance of
55
Louise Doswald-Beck, ‘Private Military Companies Under International Humanitarian Law’ (n 32), p. 115.
56
Fred Schreirer and Marina Caparini, ‘Privatising Security: Law, Practice and Governance of Private Military
and Security Companies’ (n 5), p. 18.
57
The international community has however showed intentions to consider the questionable practice of PMSCs
as illegal acts of mercenarism, see International Convention against the Recruitment, Use, Financing and
Training of Mercenaries (n 7).
58
International Code of Conduct for Private Security Providers (n 39), Preamble, para. 1.
59
ibid, p. 5.
60
Out of 95 registered certified member/member/affiliate companies to the ICoCA, all of them profile
themselves as PSCs, see International Code of Conduct Association (ICoCA), ‘Members’ (International Code of
Conduct Association [ICoCA]) available at: <https://icoca.ch/membership/> accessed 20 April 2021.
61
62
10
the PMSCs’ own definitions and titles of their businesses, was also endorsed in the Montreux
Document.63
2.2 Scope of Services

When operating within the PMS industry and conducting activities falling under the extensive
range of services during deployment in both non-conflict and conflict zones, differences
between PMCs and PSCs can be difficult to identify.64 While some activities may be as innocent
as guarding shopping malls or issuing parking fines, others are of a more controversial, coercive
and violent nature that would generally be considered core military functions.65 Moreover, an
activity that is defined as a military service under one contract within the discussed industry,
may yet under another contract be classified as a security service due to the industry’s high
dependence upon contractual law.66 Thus recognising that different types of PMSCs and
different services pose different normative questions, this thesis draws primarily on four
classifications to problematise any legal implications deriving from the private supply of
military and security services in armed conflict.67
In the shadow of organisational and scholarly attempts to classify the companies operating
within the PMS industry, contributions to define and separate their various services have been
scarce. To enable easier understanding as to why legal questions can arise in the sphere of IHL
when it comes to the use of PMSCs in armed conflict, it is however useful to organise the
activities into logical and functional categories. One contribution to such development of the
definition and categorisation of PMS services is international scholar, specialist on 21st century
warfare and ardent critic of PMSCs, Peter W. Singer’s application of the traditional military
“Tip of the Spear” analogy, which essentially distinguishes between PMSC activities based on
their respective proximity to the tactical battlefield.68 The notion of the tactical battlefield or
the tip of the spear is twofold as it encompasses both the contractors’ physical proximity to the
frontline (and thereby the increased risk of experiencing hostile fire), as well as their influence
on the strategic and tactical battle environment.69 Thus on the one hand, there are services that
may be close to the tip of the spear as they have a direct influence on the strategic balance of
the conflict, but nevertheless do not require that the PMSC personnel carrying out such
activities are themselves located near the frontlines of battle by physical means (inter alia those
who provide military training in distant areas or control drones from bunkers).70 On the other
hand, there are services that lie further away from the tip of the spear in terms of affecting any
strategic military balance (such as culinary services like preparing and delivering food to armed
units), but still require the presence of PMSC staff in active war zones.71 These latter kinds of
63
Operations of Private Military and Security Companies During Armed Conflict (n 39), Preface, para. 9(a).
64
Christa Moesgaard, Private Military and Security Companies – From Mercenaries to Intelligence Providers (n
35), p. 6.
65
Elke Krahmann, Private Security Companies and the State Monopoly on Violence: A Case of Norm Change?
(2009) PRIF-Reports No. 88, p. 7.
66
Francesco Francioni, ‘Private Military Contractors and International Law: An Introduction’ (2008) 19
European Journal of International Law 961, p. 962.
67
(1) Offensive combat; (2) military and security expertise; (3) armed security; and (4) military support, see
Hannah Tonkin, State Control over Private Military and Security Companies in Armed Conflict (n 5), p. 40.
68
69
70
ibid, p. 40.
71
ibid.
11
(innocent) activities may result in PMSC staff being exposed to real combat threats as the
execution of their service takes place in the middle of the physical theatre of a conflict.72
Partially inspired by Singer’s tip of the spear analogy, Hannah Tonkin, Acting Director of Legal
Affairs at the United Nations (‘UN’) Relief and Works Agency for Palestine Refugees in the
Near East, has identified and suggested four logical categories of PMSC services: (1) offensive
combat; (2) military and security expertise; (3) armed security; and (4) military support.73 These
four categories are ranked in the order of their closeness to the tip of the spear starting with the
ones closest to the frontline (services of a implementation/command nature), and ending with
the kinds of services most distant from the frontline (services of advisory/training nature and
non-lethal/assistance nature).74 However, recalling that the nature of PMS services may vary
between contracts, clients and situations, the below separation between the services commonly
offered by PMSCs will be made solely for clarification purposes. It should be noted that by the
means or the way in which a certain service is conducted may cause a shift of that service’s
classification as belonging to one category.
(1) Offensive combat services: The first, and arguably most controversial category of PMSC
contracts, offensive combat, involves services located at the very tip of the spear.75 Offensive
combat includes individuals with conventional, armed fighter roles who are contractually
authorised to use their weapons for offensive attacks when being close to the frontline, as well
as individuals able to launch attacks far away from the frontline using technologically advanced
weapon systems.76 Today there are no PMSCs offering offensive combat services on the open
market, still it is less than three decades ago since the South African-based private company
Executive Outcomes and the British private company Sandline offered their lucrative offensive
combat operations in Angola and Sierra Leone.77 This type of conduct sparked a debate
questioning the legitimacy of the PMS industry at large, and it ultimately contributed to a
growing international distaste for privatising offensive warfare. Nevertheless, similar –
although unconfirmed – conduct was revealed in 2009 when the New York Times reported that
a number of Blackwater contractors had been hired in 2004 by the CIA.78 Despite uncertainties
as to where the specific contracted activities that Blackwater was supposed to perform would
be placed on a tip of the spear scale, intelligence suggests that top company officials from
Blackwater were recruited as part of a CIA secret programme aimed to locate and assassinate
top operatives of the Al Qaeda.79
(2) Military and security expertise services: Tonkin’s second logical category of PMSC
services is characterised by the provision of high-level strategic or technical capabilities to
military and/or security forces, which involve unarmed contractors unauthorised to use physical
force.80 Although this category does not necessarily appear controversial at first glance, it
72
ibid.
73
ibid.
74
75
David Isenberg, Private Military Contractors and U.S. Grand Strategy (2009) PRIO Report 1/2009, p. 11.
76
77
Herbert M. Howe, ‘Private Security Forces and African Stability: The Case of Executive Outcomes’ (1998) 36
The Journal of Modern African Studies 307, p. 312-313; Hannah Tonkin, State Control over Private Military
and Security Companies in Armed Conflict (n 5), p. 45.
78
Mark Mazzetti, ‘C.I.A. Sought Blackwater’s Help to Kill Jihadists’ New York Times (19 August 2009).
79
Ewen MacAskill, ‘CIA Hired Blackwater for Al-Qaida Assassination Programme, Sources Say’ The Guardian
(20 August 2009).
80
12
encompasses a broad spectrum of services of which some are arguably closer than others to the
tip of the spear. While collecting and analysing intelligence may seem harmless in terms of
such activities’ non-immediacy to frontlines, armed exchange and direct and lethal combat
threats, the application of private contractors’ expertise can nonetheless have significant impact
on an armed conflict. The U.S. based private corporation Military Professional Resources Inc.
(‘MPRI’) was one of the world leading companies offering questionable services falling under
this category, and it consisted primarily of former top-ranked U.S. military leaders and
officers.81
Infamously known for its controversial operations in the Balkans during the 1990s, while hired
by the Croatian Government, MPRI was accused of playing a direct role in the Croatian
offensives when regaining key territories occupied by Serbian forces.82 In 1991, the UN had
established a ceasefire agreement requiring suspension of hostilities between the Croat forces
and the Krajina Serbs, as well as an international arms embargo which prohibited not only the
sale of weapons to warring parties in the Balkan war, but also military training and advice; the
latter of which MPRI’s conduct may have been in violation of.83 A massive offensive referred
to as ‘Operation Storm’ launched in August of 1995 was, although categorically denied by the
American company, to some extent supported by MPRI.84 Perhaps influenced by instructions
and guidance from MPRI, or perhaps not, Croat commanders involved in the offensive have
been indicted for their conduct by the International Criminal Tribunal for the Former
Yugoslavia (‘ICTY’).85
Concrete examples of activities falling under this category are the provision of technical and
engineering support (which has an increasing demand deriving from the rapid development and
growing sophistication of military equipment), satellite surveillance, prisoner interrogation,
mine risk education, consultancy and clearance, and the provision of advice and training to
military and/or security units and forces.86
(3) Armed security services: Armed security contracts involve various types of activities
undertaken by means of physical protection of persons or property during armed conflict. In
contrast to Tonkin’s first logical category listed, the offensive combat services, this category is
rather defined by its defensive nature. Security contractors in this sector are typically armed,
but nonetheless restricted in the types of weapons they are authorised to carry and in what
situations they may be used.87 As a general rule, private armed security contractors may resort
to armed force when circumstances require so in terms of self-defence, defence of people and
property listed in their contracts, as well as defence of civilian persons.88 However, as will be
further elaborated on later, the use of defensive force (as opposed to offensive force) is rather
81
ibid, p. 47.
82
Peter W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (n 2), p. 125-130.
83
Lord Carrington, ‘Igalo Ceasefire Agreement’ (Statement, 17 September 1991) available at:
<https://www.peaceagreements.org/viewmasterdocument/1449> accessed 19 March 2021; JNA, ‘Croatia Cease-
Fire Agreement’ (22 September 1991) available at:
<https://www.peaceagreements.org/viewmasterdocument/1450> accessed 19 March 2021; United Nations
Security Council (UNSC) Resolution 713 (25 September 1991) UN Doc S/Res/713, paras. 6-7.
84
Laura Silber and Allan Little, Yugoslavia: Death of a Nation (Penguin Books 1997), p. 357.
85
86
Hannah Tonkin, State Control over Private Military and Security Companies in Armed Conflict (n 5), p. 45-
47.
87
ibid, p. 50.
88
ibid.
13
insignificant with regards to the determination of one’s legal status since IHL makes no
distinction between these two types of resort to violence.89
Activities such as controlling borders and immigration flows, providing private police,
guarding embassies and providing transportation convoys for highly ranked government
officials are a few examples of services commonly offered by PMSCs under this category.90
However, despite the defensive character of services belonging to this category, which are
rarely intended to impact the strategic balance of a conflict at any larger scale, the task of
guarding sites or individuals that are themselves strategic targets, bears inevitable risks. As
suggested by some symbolic examples of these type of contracts which have included
protection of the U.S. embassy and American personnel on Iraqi soil by the PMSCs Blackwater,
Triple Canopy and DynCorp post the 2003 invasion of Iraq, the separating line between purely
military and security tasks is easily blurred in close combat, especially so in conflicts without
clear frontlines.91 Private armed security guards from Blackwater have faced combat-like
situations, and some even been forced to pay with their lives while guarding the U.S.
headquarters, convoys and a U.S. State Department motorcade driving through Baghdad.92
(4) Military support services: The military support services category is the largest sector
within the PMS industry, and contracts under this category are generally considered to be the
least questionable ones offered by PMSCs.93 Focusing on providing general logistics to clients
in conflict zones, the importance of PMSC operations within this category is however not to be
underestimated. Without participating in the planning or execution of combat, military support
services are often essential to the success of the State or organisation hiring the PMSC, as the
outsourcing of basic tasks and chores enable national forces to concentrate on the mere
fighting.94 It has, for instance, been estimated that it takes between ten and twelve individuals
to adequately support an average American soldier in combat, a responsibility which is
increasingly handed over to PMSCs.95 Services under this category include the building and
disassembling of military camps, providing logistical support, doing laundry, preparing meals
and various means of transportations, etc.96
89
90
Foundation for Middle East Peace, ‘Settlement Time Line’ (2006) 16 Report on Israeli Settlement in the
Occupied Territories 2, p. 5; DynCorp, ‘DynCorp International Continues Police Training in Iraq’ (DI Press
Releases, 23 June 2008) available at: <https://www.dyn-intl.com/media-center/press-releases/dyncorp-
international-continues-police-training-in-iraq/> accessed 14 March 2021; Hannah Tonkin, State Control over
Private Military and Security Companies in Armed Conflict (n 5), p. 49.
91
92
Dana Priest, ‘Private Guards Repel Attack on U.S. Headquarters’ Washington Post (6 April 2004); Jeffrey
Gettleman, ‘4 From U.S. Killed in Ambush in Iraq; Mob Drags Bodies’ New York Times (1 April 2004); Demetri
Sevastopulo, ‘Iraqis Pull Security Contractor’s Licence’ Financial Times (18 September 2007); Sabrina
Tavernise, ‘U.S. Contractor Banned by Iraq over Shootings’ (n 42).
93
Andrés Macías, ‘The Impact of PMSC on the Role of Today’s Military’ (2014) 12 Opera 221, p. 229.
94
95
ibid, p. 51; Lisa Rimli and Susanne Schmeidl, ‘Private Security Companies and Local Populations’
(SwissPeace, November 2007), p. 18, available at:
<https://reliefweb.int/sites/reliefweb.int/files/resources/1D62A051F0BCE7A449257391001FE0BE-
Full_Report.pdf> accessed 9 April 2021.
96
14
2.3 International Attempts to Regulate the Private Military and
Security Industry
Against the background of the rapid increase of hiring PMSCs to operate in armed conflicts
during the last decades, there is a predominant feeling amongst the international community
that such companies should be regulated.97 In recent years, several attempts have therefore been
made to codify international rules and articulate principles related to the agile and innovate
operation of PMSCs.98 The Montreux Document, the ICoC, the UN Draft Convention and the
current UN Human Rights Council (‘UNHRC’) process to elaborate an international regulatory
framework, are four examples of international initiatives that have sought to formally regulate
the PMS industry. However, their regulatory achievements so far are questionable. The
mentioned initiatives will be examined and evaluated in relation their respective impact on the
overall PMSC discourse, as well as their subsequent potential contributions to future regulation
of the discussed industry.
2.3.1 The Montreux Document
Unofficially a direct response to the Blackwater scandal massacre in the Iraqi Nisour Square in
2007, the Montreux Document is an intergovernmental document resulting from an
international process launched by the Government of Switzerland and the ICRC.99 The
Document, which has been describes as “a promotional declaration of intentions”,100 was
initially given critique for it could not be said to represent the views of the wider international
community as it was adopted by an ad hoc group of only 17 States.101 The original number of
States supporting the Document has however been more than tripled since it was introduced,
and the fact that the Document is still open to other States, international organisations and other
stakeholders to endorse it post-adoption, does increase its legitimacy to some extent.102 On that
same note, the ICRC’s involvement in the process of creating the Montreux Document does
also contribute to the legitimacy of the Document.103
In addition to the alleged non-universal view represented by the Document, it has too been
criticised for the danger “that [it] will provide [S]tates with a fig-leaf to hide the absence of
97
Lindsey Cameron, ‘Private Military Companies: Their Status under International Humanitarian Law and Its
Impact on Their Regulation’ (2006) 88 International Review of the Red Cross 573, p. 573.
98
Nikolaos Tzifakis, ‘Contracting out to Private Military and Security Companies’ (Centre for European
Studies, 2012), p. 48, available at: <https://www.martenscentre.eu/wp-content/uploads/2020/07/contracting-out-
private-and-security-companies.pdf> accessed 3 April 2021.
99
James Cockayne, ‘Regulating Private Military and Security Companies: The Content, Negotiation,
Weaknesses and Promise of the Montreux Document’ (2009) 13 Journal of Conflict & Security Law 401, p. 401.
100
José L. Gómez del Prado, ‘Private Military and Security Companies and the UN Working Group on the Use
of Mercenaries’ (2009) 13 Journal of Conflict & Security Law 429, p. 445.
101
Nigel D. White, ‘The Privatisation of Military and Security Functions and Human Rights: Comments on the
UN Working Group’s Draft Convention’ (n 18), p. 134.
102
Swiss Federal Department of Foreign Affairs (FDFA), ‘Participating States of the Montreux Document’
(International Humanitarian Law) available at: <https://www.eda.admin.ch/eda/en/home/foreign-
policy/international-law/international-humanitarian-law/private-military-security-companies/participating-
states.html> accessed 3 April 2021.
103
15
more rigorous efforts to regulate this industry”104. Indeed, the adoption of the Montreux
Document has provided the U.S. and many European countries with justifications to express
opposition to the UN’s Draft Convention proposed as a hard law tool.105
As recognised in its Preface, the Montreux Document does not take to form of a treaty and is
therefore “not a legally binding instrument and so does not affect existing obligations of States
under [CIL] or under international agreements to which they are parties”.106 Finalised by
consensus of 17 States in September 2008, the Document aims at promoting respect for IHL
and IHRL whenever PMSCs are present in armed conflicts.107 It contains a compilation of
relevant international ‘hard’ law obligations and ‘soft’ law standards including 73 good
practices relating to PMSCs.108 Furthermore, the it provides for five fundamental definitions
crucial to the understanding of the Document in its entirety, one of which reads as follows:
“PMSCs” are private business entities that provide military and/or security services,
irrespective of how they describe themselves. 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.109
This definition implies the Document’s reliance on the definitional and largely functional
approach traditional in IHL, which importantly rejects the PMSCs’ self-labelling by defining
(armed) actors’ status based exclusively on their activities, objectives and internal structures.110
As a piece of soft law, the Montreux Document has also been praised for its clarity and
standardisation that PMSCs ought to be able to benefit from in future operations in conflict
affected areas.111
2.3.2 The International Code of Conduct

In November 2010, 58 PMSCs declared their approval of the Montreux Document and
subsequently signed the ICoC.112 The ICoC is considered a complement to the Montreux
104
James Cockayne, ‘Regulating Private Military and Security Companies: The Content, Negotiation,
Weaknesses and Promise of the Montreux Document’ (n 99), p. 427-428.
105
Nikolaos Tzifakis, ‘Contracting out to Private Military and Security Companies’ (n 98), p. 50.
106
Operations of Private Military and Security Companies During Armed Conflict (n 39), Preface, para. 3.
107
ibid, para. 1.
108
It should be recalled that the section of the Montreux Document reflecting hard law is supposedly legally
binding as the mere restating of existing treaty based rules does not change their binding force.
109
Operations of Private Military and Security Companies During Armed Conflict (n 39), Preface, para. 9(a).
110
Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in
the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31, Article 13; Geneva
Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea (adopted 12 August, entered into force 21 October 1950) 75 UNTS 85, Article 13; Protocol (I)
Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
International Armed Conflict (n 40), Article 1(4); James Cockayne, ‘Regulating Private Military and Security
Companies: The Content, Negotiation, Weaknesses and Promise of the Montreux Document’ (n 99), p. 405.
111
Doug Brooks, ‘The Swiss Show Some Initiative: Bringing Clarity to International Legal and Regulatory
Frameworks’ (2008) 3 Journal of International Peace Operations 4, p. 4.
112
International Code of Conduct for Private Security Providers (n 39), paras. 2-3; Nikolaos Tzifakis,
‘Contracting out to Private Military and Security Companies’ (n 98), p. 50.
16
Document which stems from the PMS industry itself, and in the upcoming months following
its adoption, dozens of additional PMSCs signed the Code.113 The Code clearly underlines that
it does not create any new legal obligations for its signatory companies, and there is nothing
compelling all PMSCs to accede to it.114 Certification by the Code’s oversight mechanism, the
International Code of Conduct Association (‘ICoCA’) which was created in 2013 and thereby
further institutionalised the Code, will, however, certainly enhance the credibility of companies
operating within this sector.115 In contrast, provided that a PMSC offers adequate services at
market competitive rates, its lack of certification by the ICoCA will not necessarily push that
company out of the market.116
Similar to the Montreux Document, the ICoC does not deal with the legal status of PMSC
employees, and neither does it limit nor alter relevant and applicable international or national
law.117 Due to this, the Code’s legal significance is arguably rather limited. Looking at the quest
to ensure private contractors’ respect for IHL and IHRL during armed conflict from a larger
time perspective, the Code does nevertheless have potential to provide a solid basis for the
creation and adoption of future binding instruments on the matter of PMSCs. Possibly, the
ICoC’s relevance as an initiative for future attempts to regulate the PMS industry may also be
reinforced by the fact that PMSCs hired by the UN must be a signatory company to the ICoC.118
2.3.3 The UN Draft Convention
Prepared by the UN Working Group on Mercenaries, the UN Draft Convention on the

Regulation, Oversight and Monitoring of [PMSCs] was presented to the UNHRC as a legally
binding instrument in 2010.119 The initiative had been requested in 2009 by the UNHRC and it
mandated the Working Group to consult with academic institutions, non-governmental
organisations and other related bodies necessary to establish the “content and scope of a
possible draft convention on private companies offering military assistance, consultancy and
other military security-related services on the international market”120.121 With five main
113
114
International Code of Conduct for Private Security Providers (n 39), para. 14.
115
International Code of Conduct Association (ICoCA), ‘About Us’ (International Code of Conduct Association
[ICoCA]) available at: <https://icoca.ch/about/> accessed 17 April 2021; States and intergovernmental
organisations wishing to be a member of the ICoCA are obliged to endorse the Montreux Document, see
116
Elke Krahmann, ‘Security Governance and the Private Military Industry in Europe and North America’
(2005) 5 Conflict, Security & Development 247, p. 262.
117
118
United Nations Department of Safety and Security (UNDSS), ‘Guidelines on the Use of Armed Security
Services from Private Security Companies’ (Security Management Operations Manual, 8 November 2012), para.
25(a), available at:
<https://www.ohchr.org/Documents/Issues/Mercenaries/WG/StudyPMSC/GuidelinesOnUseOfArmedSecuritySe
rvices.pdf> 13 April 2021.
119
United Nations General Assembly (UNGA) 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 (2
July 2010) UN Doc A/HRC/15/25.
120
United Nations General Assembly (UNGA) Resolution on the Use of Mercenaries as a Means of Violating
Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination (26 March 2009) UN
Doc A/HRC/10/11, para. 13(a).
121
Laurence Juma, ‘Privatisation, Human Rights and Security: Reflections on the Draft International Convention
on Regulation, Oversight and Monitoring of Private Military and Security Companies’ (2011) 15 Law,
Democracy & Development 1, p. 1-2.
17
purposes, the Convention was proposed as a response to the alleged regulatory gap under IHL
with regards to the activities of PMSCs, these are namely:122
1. To reaffirm and strengthen the State responsibility for the use of force two and
reiterate the importance of the State monopoly of the legitimate use of force
2. To identify those inherently State functions which cannot be outsourced [to
PMSCs] under any circumstances
3. To regulate the activities of PMSCs and sub-contractors
4. To promote international cooperation between States regarding licensing and
regulation of the activities of PMSCs in order to more effectively address any
challenges to the full implementation of their [IHRL] obligations, including the
right to self-determination
5. To establish and implement mechanisms to monitor the activities of PMSCs and
violations of [IHRL] and [IHL], in particular any illegal or arbitrary use of force
committed by PMSCs, to prosecute the perpetrators and to provide effective
remedies to the victims123
Similar to the Montreux Document, the Draft Convention too provides for several definitions
aiming to clarify key words and concepts related to PMSCs which are relevant to the
Convention. Three of the most fundamental definitions set out by the Draft Convention states
that the term ‘PMSCs’ “refers to a corporate entity which provides on a compensatory basis
military and/or security services by physical persons and/or legal entities”124, that ‘military
services’ “refers to speciali[s]ed services related to military actions”125 of which strategic
planning, investigation, satellite surveillance and land, sea or air reconnaissance are included
actions, and finally that ‘security’ services’, inter alia, “refers to armed guarding or protection
of buildings, installations, property and people”126.
The Chair Person of the UN Working Group, José L. Goméz del Prado, has noted that earlier
attempts to regulate the PMS industry by non-binding instruments could be useful mechanisms
and complementary to an international legally binding instrument, but that they alone remain
insufficient.127 In addition to the overarching objectives of the Convention, it would compel
State Parties to provide annual data on imports and exports of PMS services for an international
PMSC Register.128 Supposedly, such obligation of transparency was proposed to generate
greater public and parliamentary scrutiny of the industry as the act of privatising security was,
and still is, in a stage of growth and generalisation. However, despite the independent experts’
convincing proposition of a binding instrument to regulate and monitor the activities of PMSCs,
the UNHRC has still not adopted the Convention. This is not totally unexpected as a wide
122
Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination (n
119), Article 1(1).
123
ibid, paras. 48-49.
124
ibid, Article 2(a).
125
ibid, Article 2(b).
126
ibid, Article 2(c).
127
José L. Gómez del Prado, ‘Why Private Military and Security Companies Should Be Regulated’ (UN
Working Group on Mercenaries), p. 5, available at: <https://media.business-
humanrights.org/media/documents/76f22d8302b285cbac64fc737108197750c80594.pdf?fbclid=IwAR3GNQdD
SfX4GS7h34LeZLSNx7IoUe2cxZxiZVulX3tK6mxH8Ii2mThumho> accessed 9 April 2021.
128
119), Article 15(2).
18
variety of highly influential interests and voices must be weighed (not only powerful States, but
also organisations, corporations, advocates for the free market, civil society and the academic
lobby) – limitations that may ultimately render a Draft Convention and the UN Working
Group’s mission impossible to achieve.129 Moreover, the Convention’s proposed ban on the
delegation of ‘inherently State functions’ in particular is directly contrary to the increasing State
practice of outsourcing military services to PMSCs. Hence the prevalent issues of
accountability, oversight and control of the PMS industry will remain challenges for future
regulatory initiatives to deal with.
2.3.5 Evaluation of the Initiatives
The international efforts discussed all reflect a persistent will to regulate the PMS industry.
However, it appears that this call for regulation comes without consensus on approach. The
initiatives demonstrate the inherent difficulties in responding to practices of rapidly developing
businesses, particularly so when it involves something as complex as war – a phenomenon
highly dependent upon both political, economic and social factors.130 Thus, without taking a
stance on the legitimacy of PMSCs to avoid fuelling the political debate between States with
high versus low reliance on PMSCs respectively and losing support, the documents nevertheless
offer practical guidance to companies operating within the industry at hand. Essentially, these
non-binding instruments refer any further measures for regulation to the national level. On that
same note, neither of these documents – quite expectedly – have aimed to interfere with the
current IHL framework in terms of the established categories of persons by suggesting any new
type of legal status or categorisation of private contractors.131
To conclude, there are arguably a number of questions that are to be elaborated and resolved
with regards to the presence of PMSCs in armed conflict for any proposed legally binding
instrument to be successful; a task which the UNHRC has not yet given up on. In an attempt to
go beyond soft law once again, the UNHRC established an open-ended intergovernmental
working group (‘OEWG’) in 2017 on the basis of the UN Draft Convention. The OEWG, as a
successor to the UN Working Group on Mercenaries, is mandated to further pursue the treaty
option that is “to protect human rights and ensure accountability for violations and abuses
relating to the activities of [PMSCs]”132. In October 2020, the OEWG’s initial three-year
mandate was renewed for an additional three years “to continue elaborating the content of an
international regulatory framework, without prejudging the nature thereof, in efforts to protect
129
on Regulation, Oversight and Monitoring of Private Military and Security Companies’ (n 121), p. 3-4; Berenike
Prem, ‘The Regulation of Private Military and Security Companies: Analyzing Power in Multi-Stakeholder
Initiatives’ (2021) 42 Contemporary Security Studies 1, p. 10-11; Nigel D. White, ‘The Privatisation of Military
and Security Functions and Human Rights: Comments on the UN Working Group’s Draft Convention’ (n 18), p.
138.
130
Sarah V. Percy, ‘Regulating the Private Security Industry: A Story of Regulating the Last War’ (2012) 94
International Review of the Red Cross 941, p. 941-942.
131
Alexander Kees, ‘Regulation of Private Military Companies’ (2011) 3 Goettingen Journal of International
Law 199, p. 209.
132
United Nations General Assembly (UNGA) Resolution Adopted by the Human Rights Council (28
September 2017) UN Doc A/HRC/RES/36/11, para. 1.
19
human rights and ensure accountability for violations and abuses relating to the activities of
[PMSCs]”133.134
133
United Nations General Assembly (UNGA) Resolution Adopted by the Human Rights Council (6 October
2020) Un Doc A/HRC/RES/45/16, para. 1.
134
Berenike Prem, ‘The Regulation of Private Military and Security Companies: Analyzing Power in Multi-
Stakeholder Initiatives’ (n 129), p. 10.
20
3. International Humanitarian Law Regulations
Despite the limited success of the above explored attempts to regulate the PMS industry
explicitly, PMSC personnel are, in default of a specific legal regime, nevertheless bound by
certain minimum rules and principles of treaty and customary based IHL.135 Being an industry
arguably emerged from the traditional act of mercenarism, an initial step in establishing how
IHL regulates individuals employed by PMSCs is to look at the current rules on mercenaries
and identify such persons’ core characteristics, and what there is separating them from PMSC
personnel. Furthermore, the principle of distinction will be examined in relation to its regulating
functions on PMSCs for three main reasons. First, it is essential to establish whether private
contractors are combatants or civilians to decide if they may lawfully take DPH. Second, to
enhance enemy forces’ determination on whether these private actors are legitimate military
targets. Third, in order to know if PMSC staff who do take DPH may be prosecuted for doing
so.
3.1 Mercenarism
Having its origin in the Latin word ‘mercis’, the English word ‘mercenary’ is linked to the act
of merchandising.136 Thus being traders selling their skills for personal gain by material
compensation, mercenaries were considered to be more or less legitimate actors in warfare until
the act of mercenarism was expressly mentioned in the API in 1977.137 Before the adoption of
the API, no mention of the act of mercenarism could be found neither in The Hague
Conventions of 1907, the Geneva Conventions of 1949, nor in customary IHL. However,
several articles of The Hague Convention V setting out rules and principles relating to non-
interference and non-aggression, might have had scopes of application broad enough to cover
mercenary activities in specific cases.138
During the last seven decades a number of major events such as the creation of the UN in 1948
and attempts of decolonisation in the 1950s and 1960s, have contributed to the common
understanding that mercenarism is an act of condemnation.139 Thus, consequential to the
international community’s clear opposition to the widespread use of mercenaries, the current
codified and first ever express definition of a mercenary under IHL was introduced and
embedded in Article 47 of the API.140 Stating that mercenaries neither are entitled to combatant
135
Alexander Kees, ‘Regulation of Private Military Companies’ (n 131), p. 201.
136
Online Etymology Dictionary, ‘Mercenary (n.) and (adj.)’ (Online Etymology Dictionary) available at:
<https://www.etymonline.com/word/mercenary#etymonline_v_44528> accessed 12 April 2021; The adjective of
a mercenary is described as “primarily concerned with making money at the expense of ethics”, see Lexico,
‘Mercenary’ (Lexico) available at: <https://www.lexico.com/definition/mercenary> accessed 7 April 2021.
137
Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflict (n 40), Article 47.
138
See, for example, Articles 4-6 and 17(a) of The Hague Convention (V) Respecting the Rights and Duties of
Neutral Powers and Persons in Case of War on Land (adopted 18 October 1907, entered into force 26 January
1910); It should be noted that The Hague Convention V is not applicable to the contemporary set-up of PMSCs
since they are private corporations, as opposed to the State actors at whom the Convention is originally aimed,
see Kevin H. Govern and Eric C. Bales, ‘Taking Shots at Private Military Firms: International Law Misses its
Mark (Again)’ (n 3), p. 69.
139
Christopher Kinsey, ‘International Law and the Control of Mercenaries and Private Military Companies’
(2008) 52 Cultures & Conflicts 1, p. 1 and 3.
140
21
status nor treatment as a prisoner of war (‘POW’), which has also been established as a rule of
CIL flowing from State practice, the Article has attracted attention for its extraordinary
weakening of protection of persons.141 Recognising the uniqueness of Article 47 as the first rule
providing a clear definition of mercenaries as a phenomenon within the context of armed
conflict, it shall however be noted that IHL does not in fact prohibit or criminalise being a
mercenary.142 The Article reads as follows:
Article 47
1. A mercenary shall not have the right to be a combatant or a prisoner of war.
2. A mercenary is any person who:
(a) is specially recruited locally or abroad in order to fight in an armed conflict;
(b) does, in fact, take a direct part in the hostilities;
(c) is motivated to take part in the hostilities essentially by the desire for private
gain and, in fact, is promised, by or on behalf of a Party to the conflict, material
compensation substantially in excess of that promised or paid to combatants of
similar ranks and functions in the armed forces of that Party;
(d) is neither a national of a Party to the conflict nor a resident of territory
controlled by a Party to the conflict;
(e) is not a member of the armed forces of a Party to the conflict; and
(f) has not been sent by a State which is not a Party to the conflict on official duty
as a member of its armed forces.143
In addition to criticism directed towards the weak protection mercenaries are afforded by
Article 47 of the API, whom are essentially to benefit only from the minimum IHL protection
of fundamental guarantees listed in Article 75 of the API, Article 47 is generally viewed as
being “practically unworkable”144 due to its much restrictive definition of a mercenary.145 To
avoid creating a definition so broad that it would risk being exploited to deny other persons
than mercenaries their potential right to combatant or POW status, the definition was
thoughtfully designed to encompass true mercenaries exclusively.146 Several conventions have
been drafted on the issue of mercenaries since the phenomenon was explicitly introduced into
the IHL framework in 1977. The Organisation of African Unity Convention for the Elimination
of Mercenarism in Africa, the UN International Convention against the Recruitment, Use,
Financing and Training of Mercenaries and the International Law Commission’s Draft Code
141
Yves Sandoz, Christophe Swinarski and Bruno Zimmermann, Commentary on the Additional Protocols of 8
June 1977 to the Geneva Conventions of 12 August 1949 (Brill Nijhoff 1987), p. 574, para. 1794; Lindsey
Cameron, ‘Private Military Companies: Their Status under International Humanitarian Law and Its Impact on
Their Regulation’ (n 97), p. 580; Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International
Humanitarian Law – Volume I: Rules (Cambridge University Press 2005), p. 391.
142
Emanuela-Chiara Gillard, ‘The Position Under International Humanitarian Law’ (2006) 36 Bruges
Colloquium 27, p. 29.
143
144
The legal issue of mercenaries has been referred to as a phenomenon governed by “strong norm, weak law”,
see Sarah V. Percy, ‘Mercenaries: Strong Norm, Weak Law’ (2007) 61 International Organization 367, p. 380-
381.
145
Francoise Hampson, ‘Mercenaries: Diagnosis before Prescription’ (1991) 3 Netherlands Yearbook of
International Law 3, p. 14-16; George H. Aldrich, ‘Guerrilla Combatants and Prisoner of War Status’ (1982) 31
American University International Law Review 871, p. 881; International Committee of the Red Cross (ICRC),
Official Records of the Diplomatic Conference Leading to the Adoption of the Additional Protocols: Statement
of the Rapporteur of Committee III (1974-1977), para. 321.
146
George H. Aldrich, ‘Guerrilla Combatants and Prisoner of War Status’ (n 145), p. 881; Christopher Kinsey,
‘International Law and the Control of Mercenaries and Private Military Companies’ (n 139), p. 5.
22
are three examples representing efforts aimed to criminalise mercenaries and such activities.147
However, all of these conventions have been found to share the definitional issues of Article 47
of the API. Because, owing to the six cumulative conditions, individuals rarely meet the IHL
definition of a mercenary. To emphasise the weaknesses inherent to the definition, English
warfare historian Geoffrey Best once famously remarked that “any mercenary who cannot
exclude himself from this definition deserves to be shot – and his lawyer with him!”148.149
Moreover, application of the impractical definition of a mercenary to make status determination
of PMS contractors is complicated also with respect to the definition’s reference to
“recruit[ment] […] in order to fight”150. This reference implicitly excludes a large number of
modern PMS activities as it fails to address the grey area of security operations in which armed
individuals are authorised to use force solely for defensive or security purposes.
As regards the core differences between mercenaries and PMSCs (and their employees), Singer
has attempted to clarify this matter by highlighting five distinguishing characteristics following
from the fact that PMSCs are corporate actors.151 Singer suggests that, as distinct from
traditional mercenaries which he singles out with six essential characteristics (foreign,
independence, motivation, recruitment, organisation and services), PMSCs are: (1) highly
organised businesses; (2) driven by business profit rather than individual profit; (3) operating
legally on the open global market; (4) offering services within a significantly broad spectrum,
sometimes to multiple clients at the same time, and; (5) often interconnected with other
industries (corporate holdings and financial markets, for example), all of which provide them
with some degree of legitimacy.152 Moreover, PMSCs are generally characterised by the fact
that their personnel are hired into an organisation (the PMSC) which serves as an intermediary
between the professional soldiers they employ on the one hand, and the governments or
organisations that seek their expertise and services on the other hand.153 PMSC staff typically
also have access to heavier and more complex military artillery such as planes, helicopters and
sophisticated firearms, as compared to mercenaries whose resources are often limited to small
arms.154 These are all points that indicate that the contemporary form and general definition of
PMSCs as private actors are not mercenaries in the traditional sense. It may however be argued
that some of the most controversial and coercive activities conducted by PMSCs overlap with
mercenarism to some extent. Conclusively, international law relating to mercenaries is largely
rendered useless for PMSCs as a modern form of private actor, and it is highly unlikely that
147
OAU Convention for the Elimination of Mercenarism in Africa (adopted 3 July 1977, entered into force 22
April 1985) 1490 UNTS 96; International Convention against the Recruitment, Use, Financing and Training of
Mercenaries (n 7); International Law Commission (ILC) Draft Code of Crimes against the Peace and Security of
Mankind, Report of the International Law Commission (ILC) on the Work of Its Forty-Eighth Session (1996)
UN Doc. A/51/10.
148
Geoffrey Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflict
(Littlehampton Book Services Ltd 1980), p. 400.
149
Michael Scheimer, ‘Separating Private Military Companies from Illegal Mercenaries in International Law:
Proposing an International Convention for Legitimate Military and Security Support the Reflects Customary
International Law’ (2009) 24 American University International Law Review 609, p. 613; Yves Sandoz,
Christophe Swinarski and Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the
Geneva Conventions of 12 August 1949 (n 141), p. 578, para. 1804.
150
Victims of International Armed Conflict (n 40), Article 47(2)(a).
151
Peter W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (n 2), p. 40 and 45.
152
ibid, p. 43-47.
153
Legal Assistant, ‘Are Mercenaries Legal?’ (Laws 101 Resources, 15 April 2020) available at:
<https://laws101.com/mercenaries-legal/> accessed 19 April 2021.
154
ibid.
23
PMSC staff, with their diverse services and thereby static character, could ever fit under the
definition of a mercenary.
3.2 The Principle of Distinction

While the existence of armed conflict neither can be denied nor completely avoided, IHL serves
the purpose of limiting the effects in armed conflict. By restricting the means and methods by
which wars are fought and simultaneously protect persons who are not, or no longer,
participating in the hostilities, the law of armed conflict’s objective is dual.155 In attempting to
minimise human suffering while balancing the military necessity arising in armed conflict with
the needs for humanitarian protection, IHL is founded upon a number of basic principles.156
Namely, the principles of distinction, proportionality and humanity are three examples of these
cardinal principles.157
The principle of distinction, also commonly referred to as the ‘basic rule’, embodies the very
core of the IHL regime. It emphasises the importance of – during armed conflict – making
distinctions between civilians and combatants on the one hand, and between civilian objects
and military objectives on the other hand.158 However, given this thesis’ focus on PMSCs in
general and such personnel in particular, the principle of distinction’s applicability towards
objects falls outside of the scope of this research, and will therefore not be further discussed.
The basic rule is based on the existence of mutual responsibilities between the enemy forces,
who must refrain from making the civilian population direct targets of attack, and the civilians,
who must refrain from engaging in the hostilities.159 The rule is codified primarily in Articles
48 and 50-51 of the API, and forming part of CIL it is also enshrined in Rule 1 of the ICRC’s
Rules on Customary IHL.160 Stated in explicit wording, the principle of distinction declares that
lawful targets of attack are those taking DPH; namely the combatants, while those not
contributing to the armed conflict; the civilians, are to be spared from attacks. In IACs,
distinction and the rules of targeting and treatment is status-based rather than contextual.161
Thus, while combatants are defined by their membership of an appropriately constituted group,
all persons other than that are considered to be civilians by assumption.162 However, in trying
155
International Committee of the Red Cross (ICRC), ‘What is International Humanitarian Law?’ (n 24), p. 1.
156
International Committee of the Red Cross (ICRC), ‘Fundamental Principles of IHL’ (International Committee
of the Red Cross [ICRC] How Does Law Protect in War?) available at:
<https://casebook.icrc.org/glossary/fundamental-principles-ihl> accessed 23 March 2021.
157
Diakonia, ‘Basic Principles of IHL’ (Diakonia Understanding IHL) available at:
<https://www.diakonia.se/en/ihl/the-law/international-humanitarian-law-1/introduction-to-ihl/principles-of-
international-law/> accessed 23 March 2021.
158
159
Alice S. Debarre, ‘U.S.-Hired Private Military and Security Companies in Armed Conflict: Indirect
Participation and its Consequences’ (2016) 7 Harvard National Security Journal 437, p. 444.
160
Victims of International Armed Conflict (n 40); Jean-Marie Henckaerts and Louise Doswald-Beck, Customary
International Humanitarian Law – Volume I: Rules (n 141), p. 3.
161
Comparatively, treatment of individuals in NIACs is contextual and conduct-based as there is no general
definition of combatants’ status in such conflicts, and a person’s acts and character are the decisive factors that
are to be taken into consideration, see Jonathan Crowe and Anna John, ‘The Status of Private Military Security
Companies in United Nations Peacekeeping Operations Under the International Law of Armed Conflict’ (n 49),
p. 12.
162
ibid.
24
to establish the legal status of PMSC staff under IHL, it should be noted that the answer to the
question of whether such persons are civilians or combatants, carries palpable practical
consequences. For if PMSC personnel are civilians, they are to enjoy general protection against
the dangers arising from military operations in accordance with Article 51 of the API, and
immunity from direct attack.163 Reservation to this immunity occurs, however, if and for as
long as they take DPH.164 In such case, the civilian is considered to be an unlawful or
unprivileged combatant who is accordingly to be subject to trial for the DPH taken without
being entitled to do so.165 Moreover, civilians taking DPH who falls into the power of the enemy
are not entitled to POW status.166
Making an opposite determination of an individual’s character as a combatant comes with a

broad scope of both privileges and duties. Most importantly, combatants have an exclusive right
to take DPH and they are the only ones who can be a lawful object of an attack.167 Subsequent
to their right to take DPH, combatants are not to be considered personally responsible for their
use of armed force provided that their acts do not amount to genocide, crimes against humanity
or war crimes that are criminalised by ICL.168 In accordance with Article 4 of the Geneva
Convention Relative to the Treatment of Prisoners of War (‘GCIII’) and Article 44 of the API,
combatants are, as distinct from civilians taking DPH, to be granted POW status and protection
in the event of capture by its adversary.169
3.2.1 Definition of a Civilian
The concept of a civilian is a core component of the principle of distinction, and although treaty
based IHL predating the API does not provide any specific definition of a civilian, the legal
terminology has its roots in the Hague Conventions of 1907 and the four Geneva Conventions
of 1949.170
The classification of a person during armed conflict is to be determined based on the character
of that person. Alternatively to providing an exhaustive list or express definition of persons who
automatically and exclusively qualifies for civilian protection, a civilian’s character is generally
contradistinctive to the character and functions of a combatant. Article 50 of the API codifies
this adversary and highly defining relationship between civilians and combatants, and State
practice establishes that very same conclusion as a matter of CIL which is stated in Rule 5 of
163
Victims of International Armed Conflict (n 40), Article 51(1)-(2).
164
ibid, Article 51(3).
165
ibid, Article 53(3); Knut Dörmann, ‘The Legal Situation of “Unlawful/Unprivileged Combatants”’ (2003) 85
International Review of the Red Cross 45, p. 46.
166
Knut Dörmann, ‘The Legal Situation of “Unlawful/Unprivileged Combatants”’ (n 165), p. 46.
167
Victims of International Armed Conflict (n 40), Articles 43(2) and 48.
168
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187
UNTS 3, Articles 6-8.
169
Geneva Convention (III) Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into
force 21 October 1950) 75 UNTS 135, Article 4; Protocol (I) Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of International Armed Conflict (n 40), Article 44.
170
Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International
Humanitarian Law (2009) International Committee of the Red Cross (ICRC), p. 20-21.
25
the ICRC’s Study on Customary IHL.171 The universal definition of a civilian in the context of
IHL thus encompasses all persons other than combatants (i.e. all ‘non-combatants’), and it is
directly linked to a person’s participation or non-participation in hostilities. The ICTY has
endorsed this approach in the Blaškić case of 2000 by presenting its definition of civilians as
“persons who are not, or no longer, members of the armed forces”; a view which has also been
reflected in numerous military manuals and reported practice.172
Also the wording “no longer” specifying the temporal scope of the protection offered to
civilians during armed conflict has been established as a matter of CIL stemming from State
practice according to Rule 6 of the ICRC’s Study on Customary IHL.173 For unlike combatants,
whose character is constant which makes them liable to attack at all times (except for if they
are hors de combat), civilians are to benefit from the protection afforded by IHL “unless and
for such time as they take a direct part in hostilities”174.175 This means that once civilian
participation has ceased, the extensive protection resumes and they may not be targeted
anymore. Any direct attack on civilians while they are not taking DPH would thus be unlawful
under IHL.176 Furthermore, sub-paragraph (1) of Article 50 of API, the ICRC’s Study on
Customary IHL, as well as the Interpretive Guidance which will be discussed in greater detail
later, concludes that in case of doubt during the conduct of hostilities, persons shall be
considered to be civilians in accordance with the concept of good faith.177
Practical application and determination of the IHL notion of a civilian during armed conflict is
however not always a straightforward task, especially with regards to personnel of PMSCs.178
The status of PMSCs personnel in armed conflict is to be determined on a case-by-case basis by
looking, in particular, at the circumstances and nature of the functions and operations in which such
individuals are involved.179 In relation to IACs, the general assumption is however that unless these
personnel are incorporated into the State armed forces of one of the parties to a conflict, they are
171
International Humanitarian Law – Volume I: Rules (n 141), p. 17.
172
Prosecutor v Tihomir Blaškić (Trial Judgment) IT-95-14-T (3 March 2000), para. 180; Jean-Marie
Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law – Volume I: Rules (n 141),
p. 18.
173
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law – Volume I:
Rules (n 141), p. 20.
174
ibid, p. 19.
175
Alexandre Faite, ‘Involvement of Private Contractors in Armed Conflict: Implications Under International
Humanitarian Law’ (2004) 4 Defence Studies 166, p. 173; Yves Sandoz, Christophe Swinarski and Bruno
Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August
1949 (n 141), p. 515, para. 1678; For a definition on the concept of persons hors de combat, see, for example,
Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims
of International Armed Conflict (n 40), Article 41(2) and Rule 47 in Jean-Marie Henckaerts and Louise
Doswald-Beck, Customary International Humanitarian Law – Volume I: Rules (n 141), p. 164.
176
Humanitarian Law’ (n 175), p. 173.
177
International Humanitarian Law – Volume I: Rules (n 141), p. 24; Nils Melzer, Interpretive Guidance on the
Notion of Direct Participation in Hostilities under International Humanitarian Law (n 170), p. 75-76.
178
Peter Maurer, ‘War in Cities: What is at Stake?’ (International Committee of the Red Cross [ICRC]
Statement, 4 April 2017) available at: <https://www.icrc.org/en/document/war-cities-what-stake-0> accessed 2
March 2021.
179
International Committee of the Red Cross (ICRC), ‘International Humanitarian Law and Private
Military/Security Companies – FAQ’ (n 46).
26
civilians.180 Whereas this category of individuals is often characterised by the exposure of high
risks to life and health in comparison to ordinary civilians, it has nonetheless been suggested
that PMSC personnel taking no DPH are to be granted POW treatment upon capture by the
enemy as an additional layer of protection.181 Article 4(A)(4) of the GCIII recognises that POW
status may be benefitted by, amongst others:
Persons who accompany the armed forces without actually being members thereof,
such as civilian members of military aircraft crews, war correspondents, supply
contractors, members of labour units or of services responsible for the welfare of the
armed forces, provided that they have received authori[s]ation from the armed forces
which they accompany […]182.
Hence, following the earlier listed services commonly offered by PMSCs during armed conflict
alongside, or, in close connection to armed forces, one could accurately assume that a
considerable amount of individuals working for companies operating within the PMS sector,
would be entitled to POW status if falling into the hands of its adversary.
3.2.2 Definition of a Combatant
In addition to the first personal component of the principle of distinction – the notion of a
civilian – the concept of a combatant is the formers’ opposite. Article 43(2) of the API sets out
that the definition of a combatant includes all members of the armed forces of conflicting
parties, medical and religious personnel excluded.183 This definition of a combatant established
by treaty based IHL is moreover considered a rule of CIL applicable to IACs and NIACs
equally, yet the ‘combatant status’ exists exclusively in relation to IACs.184
Following the assumptional relationship between civilians and combatants, factual

circumstances and information indicating that an individual takes no DPH generally would
confirm a person’s civilian character, a person indeed taking DPH would adversely indicate
that person’s combatant role and character.185 For a person to qualify as a combatant who is to
directly participate in hostilities, it has been argued that the following conditions should be met
cumulatively: (1) subordination to a “Party to the conflict”; (2) an organisation of a military
character; (3) a responsible command exercising effective control over the members of that
organisation, and (4) respect for the rules of international law applicable in armed conflict.186
180
ibid.
181
Mirko Sossai, Status of PMSC Personnel in the Laws of War: The Question of Direct Participation in
Hostilities (2009) EUI Working Papers AEL 2009/6 Academy of European Law, PRIV-WAR Project, p. 17.
182
Geneva Convention (III) Relative to the Treatment of Prisoners of War (n 169), Article 4(A)(4).
183
Victims of International Armed Conflict (n 40), Article 43(2); Although the GCIII does not deal with the
conduct of hostilities but rather with the protections of POWs, the combatant status of Article 43(2) of the API is
implicitly included in the recognition of POW status in the event of capture, see Yves Sandoz, Christophe
Swinarski and Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949 (n 141), p. 514, para. 1677.
184
Rule 3 of the ICRC’s Study on Customary IHL, see Jean-Marie Henckaerts and Louise Doswald-Beck,
Customary International Humanitarian Law – Volume I: Rules (n 141), p. 11.
185
ibid, p. 20.
186
June 1977 to the Geneva Conventions of 12 August 1949 (n 141), p. 517, para. 1681.
27
Proving one’s character under IHL is an obligation of combatants rather than civilians. For
combatants to retain their twofold “soldier’s privilege”, i.e., the combatant status authorising
such individuals to lawfully commit acts of hostility, and the POW status which offers
protection if one ends up in the hands of the enemy, Article 44(3) of the API establishes that
combatants must distinguish themselves (in other words, allow their enemies to identify them)
from all other persons – being the civilians – who may not be attacked nor take DPH. This long-
standing and much conceivable rule requiring combatants to systematically single themselves
out with, for example, uniforms as a distinctive sign from the civilian population, is also
reflected in the ICRC’s Customary Rule 106.187 However, with regards to private contractors
employed by PMSCs, the general rule is that they are civilians who are not legally obliged to
single themselves out. Yet these actors are frequently found to hold positions labelled as
“defence” or “security”, in which they work alongside (or independently of) troops close to
combat to fulfil roles almost identical to those of uniformed service members with combatant
status. Hence, the physical identification of PMSCs as non-combatants can under certain
circumstances be difficult to notice.
3.2.3 Direct Participation in Hostilities
DPH is an implicit limit to privatisation, and in respecting the principle of distinction in good
faith, States might theoretically be precluded from entrusting PMSCs with tasks amounting to
a DPH.188 The wording of ‘DPH’ is mentioned in Articles 43(2) and 51(3) of the API; the
former which denotes combatant privilege, and the latter which specifies when civilians lose
their benefit from protection against attack. The concept applies exclusively to those who
qualify as civilians under IHL, and since individuals would risk becoming subject to attack at
any time and any place without such status, it is of great functional importance.189 However,
despite its central and even so decisive role to the principle of distinction and IHL at large, the
concept of DPH lacks precise definition in the Geneva Conventions and CIL.190 Furthermore,
the absence of a clear and well-established definition of which acts constitute DPH in turn
makes it difficult to propose a straightforward list of services or activities that PMSCs cannot
do in order to prevent their unlawful participation.191
The notion of DPH has nevertheless been offered some guidance by the commentary to the API
as to its interpretation and understanding by stating that “direct participation means acts of war
which by their nature or purpose are likely to cause actual harm to the personnel and equipment
187
Rules (n 141), p. 15 and 385.
188
International Committee of the Red Cross (ICRC), ‘Principle of Distinction’ (International Committee of the
Red Cross [ICRC] Casebook) available at: <https://casebook.icrc.org/law/principle-distinction> accessed 13
April 2021; Mirko Sossai, ‘Combatting the Legal Side Effects of Privatized War’ (n 15).
189
Michael N. Schmitt, ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (2010) 42
International Law and Politics 697, p. 704.
190
Humanitarian Law’ (n 175), p. 173; The ICRC highlighted in its study on customary IHL that “outside the few
uncontested examples […], in particular the use of weapons or other means to commit acts of violence against
human or material enemy forces, a clear and uniform definition of [DPH] has not been developed in State
practice”, see Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law –
Volume I: Rules (n 141), p. 23.
191
Gianpiero Spinelli, ‘The Status of Personnel of PMSCs Contractors in Armed Conflict under IHL. Is There
Also a Special Status?’ (n 43).
28
of the enemy armed forces”.192 Yet based on the assumption that all persons other than the
members of the armed forces of a conflicting party are civilians in accordance with Article 50
of the API, the act and concept of DPH cannot and should not be understood as simply fighting
in a conflict or aiding any of the warring parties.193 Moreover, the ICTY has argued in this
regard that an exact definition of the dividing line between DPH and lower degrees of
participation or non-participation during armed conflict is unnecessary, and that such
determination rather should be made on a case-to-case basis.194 Carrying arms or equipment
otherwise related to violence or armed conflict does not imply per se that the carrier of such
equipment takes DPH, and the fact that such goods also can be used in a context of ordinary
criminal activity must be taken into consideration.
In an effort to clarify DPH – which is arguably characterised by its controversial lack of

definition and the resulting ambiguity – an expert working group was instituted in 2003 by the
ICRC and the TMC Asser Institute.195 The working group has published three reports on the
issue of DPH and the final outcome took the form of a document of Interpretive Guidance. The
Interpretive Guidance was published in 2009 and it refers to DPH as “specific hostile acts
carried out by individuals as part of the conduct of hostilities between parties to an armed
conflict”196. The main aim of the document is expressed in its foreword as “provid[ing] a legal
reading of the notion of ‘[DPH]’ with a view to strengthening the implementation of the
principle of distinction”197. Furthermore, “[t]he […] text seeks to facilitate the distinctions
[between armed forces and civilians, and between civilians who never take a DPH and those
who do so on an individual, sporadic or unorganised basis only] by providing guidance on the
interpretation of [IHL] relating to the notion of [DPH]”198.
Instead of formulating an abstract definition of general application of DPH that would

potentially leave out conceivable situations and fail to “reflect the complexity of the legal issues
at stake”199, as was first envisaged, the working group focused on the three constitutive
elements of the notion. The three constitutive elements set out in the document must be satisfied
cumulatively before civilians can be classified as legitimate targets, and these are namely the
(1) threshold of harm; (2) direct causation, and; (3) belligerent nexus. The requirements read in
their entirety as follows:
1. [T]he act must be likely to adversely affect the military operations or military
capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or
destruction on persons or objects protected against direct attack (threshold of
harm), and
192
June 1977 to the Geneva Conventions of 12 August 1949 (n 141), p. 619, para. 1944.
193
194
Prosecutor v Dusko Tadic a/k/a “Dule” (Opinion and Judgment) IT-94-1 (7 May 1997), para. 616; The case-
by-case approach adopted by the ICTY is also mirrored by State practice, see Michael N. Schmitt,
‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (n 189), 706.
195
Mirko Sossai, Status of PMSC Personnel in the Laws of War: The Question of Direct Participation in
Hostilities (n 181), p. 8.
196
Humanitarian Law (n 170), p. 45.
197
ibid, p. 5.
198
ibid, p. 6.
199
Nils Melzer, Third Expert Meeting on the Notion of Direct Participation in Hostilities Summary Report
(October 2005) International Committee of the Red Cross (ICRC) and TMC Asser Institute, p. 5.
29
2. [T]here must be a direct causal link between the act and the harm likely to result
either from that act, or from a coordinated military operation of which that act
constitutes an integral part (direct causation), and
3. [T]he act must be specifically designed to directly cause the required threshold of
harm in support of a party to the conflict and to the detriment of another
(belligerent nexus).200
3.2.3.1 Threshold of Harm

The first constitutive elements of the ICRC’s Interpretive Guidance establishes that for an act
to qualify as DPH, the harm that may reasonably be expected to result from that act must attain
a certain threshold.201 This threshold can be reached in two ways: either by adversely affecting
the military operations or military capacity of a party to a given conflict, or by inflicting death,
injury or destruction on persons or objects that are protected against direct attack.202 Moreover,
the qualification of an act as DPH does not require that the materialisation of harm reaches the
threshold of harm, i.e. that it actually eventuates, but simply the objective likelihood that the
act in question will result in such harm.203
As concerns an act that will reasonably cause harm of a specifically ‘military nature’, the
Interpretive Guidance appropriately notes that the threshold generally will be satisfied
regardless of the act’s quantum of harm.204 Military harm should hence not be interpreted to
encompass only the factual infliction of death, injury or destruction on military personnel and
objects, but virtually any consequence that would adversely affect the military operations or
capacity of a conflicting party.205 In this regard one could consider Tonkin’s first category of
services commonly offered by PMSCS: the offensive combat services. Activities falling under
this category may reasonably and even expectedly result either in military harm or otherwise
have an adverse impact on the military operations of the party which the company is hired to
operate against. Moreover, the Interpretive Guidance lists a number of examples of acts that
would typically reach the required threshold of harm, of which the clearance of mines placed
by the adversary is one example.206 This imply that it is not only companies located at the very
tip of the spear which offer services potentially amounting to fulfilment of the first of the three
constitutive elements of DPH, but also companies within the second category (military and
security expertise services).207
200
201
ibid, p. 47.
202
ibid; Michael N. Schmitt, ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (n
189), p. 713-714.
203
Humanitarian Law (n 170), p. 47; Michael N. Schmitt, ‘Deconstructing Direct Participation in Hostilities: The
Constitutive Elements’ (n 189), p. 724-725.
204
Humanitarian Law (n 170), p. 47; Michael N. Schmitt, ‘Deconstructing Direct Participation in Hostilities: The
Constitutive Elements’ (n 189), p. 716.
205
Rules (n 141), p. 22; Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under
International Humanitarian Law (n 170), p. 47.
206
Nils Melzer, Third Expert Meeting on the Notion of Direct Participation in Hostilities Summary Report (n
199), p. 31.
207
Hannah Tonkin, State Control over Private Military and Security Companies in Armed Conflict (n 5), p. 45-
47.
30
In addition to specific acts that are likely to adversely affect the military operations or capacity
of a conflicting party, there are, as mentioned, also acts that may constitute a DPH by inflicting,
or by being likely to inflict, death, injury or destruction on persons or objects that are protected
against attack.208 An undisputed example of acts that satisfy the threshold of harm is the type
of attacks that are directed against civilians and civilian objects, either intentionally or
indiscriminately (inter alia, sniper attacks and bombardment of civilian or urban residential
areas).209
3.2.3.2 Direct Causation

The second element used to assess DPH, direct causation, will be satisfied when a specific act
or a concrete and coordinated military operation of which the act constitutes an integral part,
may reasonably be expected to, in one causal step, cause harm that reaches the supra reviewed
threshold of harm.210 Suggested by the treaty terminology in Article 51(3) of the API, there is
a distinction to be made between taking a “direct” part in hostilities which result in loss of
civilian protection, and taking an “indirect” part in hostilities which does not lead to such loss
of protection. This distinction thus corresponds to the difference between ‘conduct of
hostilities’ versus ‘other activities that are part of the general war effort’ (activities objectively
contributing to the military defeat of the enemy party) or ‘activities characterised as war-
sustaining’ (additional activities which support the general war effort).211 However, the
Interpretive Guidance recognises that both general war effort and war-sustaining activities may
result in harm reaching the required threshold for DPH.212
The requirement of direct causation should be understood as meaning that the harm must be
brought in one causal step, as opposed to conduct that merely maintains the capacity of a
conflicting party to harm its enemy, or otherwise builds up such capacity.213 At first glance,
application of this element to PMSCs, and subsequently fulfilment of it, would thus be
complicated. As a majority of the activities conducted by PMSCs during armed conflict would
fit within the less controversial categories of services distant from the tip of the spear, most of
the PMSC personnel’s acts would probably be considered to only have an indirect causal link.
However, considering the PMSCs closer to the tactical battlefield, it may be easier to prove a
direct causal link between their conduct and any harm inflicted upon the adversary of the State
or organisation hiring the company. The causal relationship between the employment of, for
example, advanced weapons systems, missiles or drones and the ensuing harm will remain
direct regardless of the PMSCs’ temporal and/or geographical proximity to the resulting
harm.214
208
209
ibid; See Article 49(1) of the API for a definition of ‘attack’. No distinction is made between defensive and
offensive attacks for the purpose of determining whether a person is taking DPH.
210
Humanitarian Law (n 170), p. 51; The need for a direct causal link for an act to be considered DPH is also
articulated in the 1987 Commentary to the API in relation to Article 43, see Yves Sandoz, Christophe Swinarski
and Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of
12 August 1949 (n 141), p. 516, para. 1679.
211
212
ibid, p. 51-52.
213
ibid, p. 53; Michael N. Schmitt, ‘Deconstructing Direct Participation in Hostilities: The Constitutive
Elements’ (n 189), p. 728.
214
Humanitarian Law (n 170), p. 54-55.
31
3.2.3.3 Belligerent Nexus
The third constitutive element requires that an act must in some way be directly tied to the
armed conflict, why civil unrest such as looting occurring in parallel to a conflict is excluded.215
This element relates to the objective purpose behind an act which is revealed by the design of
that act, rather than by the subjective purpose or hostile intent of participating individuals.216
The objective criterion linked to the act alone implies that the belligerent nexus is generally not
influenced by circumstantial factors such as personal distress or the mental ability of persons
to assume responsibility for their conduct. This means that even in a situation where civilians
are coercively forced to take DPH, they may lose their protection against direct attack.217 The
ICRC notes that in order to amount to DPH, an act must not only be “objectively likely to inflict
harm that meets the first two criteria, but it must also be specifically designed to do so in support
of a party to an armed conflict and to the detriment of another”218.219 Accordingly, armed
violence that is not designed to harm a party to an armed conflict will not amount to DPH.220
As uncontroversial as the belligerent nexus element may seem, determination of it in PMSC

activities does however carry considerable practical difficulties.221 For while the Interpretive
Guidance makes a difference between offensive and defensive attacks by automatically
precluding any legitimate self-defensive action, as well as most actions defensive of others from
amounting to DPH, IHL in contrast makes no such difference.222 The IHL legal framework
recognises that even a defensive action might well legally qualify as an attack as defined by
Article 49(1) of the API that may amount to DPH, this by conversely emphasising the character
and legal status of the person or object in question that is protected, rather than that of the
attacker.223 This indicate that while the number of PMSCs mandated to conduct hostilities
through services of an offensive nature are very few, the opposite defensive protection of
persons and objects more commonly offered by PMSCs falls under a substantially broader
category of companies (Tonkin’s third category), which could result in scenarios implying a
higher risk to commit DPH.224
In conclusion, being PMSC staff in an armed conflict requires complex determinations of

whether the person or object one is protecting is, or has turned into, an objective legitimate to
attack, whether an attack is part of common criminal activity or conduct favouring a conflicting
party, and whether the use of defensive force is actually perceived as defence by the enemy, or
215
Michael N. Schmitt, ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (n 189),
p. 735; Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International
216
217
Only in extreme circumstances, such as if a civilian is physically coerced into acting as a human shield in
close combat, or if a driver is completely unaware that he or she is transporting a bomb that is remotely
controlled, could the mental state of a civilian challenge the belligerent nexus of the conduct, see ibid, p. 60.
218
ibid, p. 58.
219
The belligerent nexus is not to be confused with the general nexus requirement developed in the jurisprudence
of the ICTY and International Criminal Tribunal for Rwanda which is conceived more broadly, see Nils Melzer,
Third Expert Meeting on the Notion of Direct Participation in Hostilities Summary Report (n 199), p. 25.
220
ibid, p. 59.
221
Michael N. Schmitt, ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (n 189),
p. 728.
222
223
Victims of International Armed Conflict (n 40), Article 49(1); Tobias Vestner, ‘Targeting Private Military and
Security Companies’ (n 36), p. 267.
224
32
as an attack.225 The act of defending civilian persons and civilian objects from attack or
combatants and military goods from actions lacking nexus to the armed conflict, i.e. actions of
common criminality, does neither fulfil the belligerent nexus according to IHL, nor according
to the ICRC’s Interpretive Guidance.226 The mere use of defensive force does not, simply put,
amount to DPH when it is executed to repulse an unlawful attack. However, the defence of
legitimate targets, i.e. combatants or military objectives, from their adversary would be an
action amounting to DPH given the clear belligerent nexus according to IHL; an activity not
too rarely conducted by PMSCs.227
3.2.4 Indirect Participation in Hostilities
Briefly touched upon in relation to the second constitutive element of DPH, it is fair to say that
the concept of IDPH is in a developing stage. The concept of IDPH lacks explicit reference and
definition in treaty based IHL, yet it is briefly mentioned in the Commentary to the API as well
as the Interpretive Guidance. Acknowledging the ambiguity inherent to the notion of DPH (and,
perhaps unintentionally, its interconnection to IDPH), the ICRC has noted that:
Undoubtedly there is room here for some margin of judgment: to restrict this concept
to combat and to active military operations would be too narrow, while extending it
to the entire war effort would be too broad, as in modern warfare the whole population
participates in the war effort to some extent, albeit indirectly. […] [DPH] implies a
direct causal relationship between the activity engaged in and the harm done to the
enemy at the time and place where the activity takes place.228
This ambiguity has also been reflected in Rule 6 of the ICRC’s Study on Customary IHL which
implicitly states that uncertainty remains with regards to, inter alia, the difficulties in
determining the difference between DPH and IDPH.229 An attempted distinction between the
notions of DPH and IDPH has nevertheless been developed by the Special Representative of
the UN Commission on Human Rights for El Salvador, and later endorsed by the Inter-
American Commission on Human Rights. In their reports, the mentioned organs have adopted
a view similar to that of the Commentary to the API and the Interpretive Guidance by
emphasising the direct causal relationship and the “immediate threat of actual harm to the
adverse party”230, yet no such uniform definition has been accepted in State practice.231
225
226
ibid; Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under
International Humanitarian Law (n 170), p. 64.
227
Emanuela-Chiara Gillard, ‘Business Goes to War: Private Military/Security Companies and International
Humanitarian Law’ (2006) 88 International Review of the Red Cross 525, p. 526; Tobias Vestner, ‘Targeting
Private Military and Security Companies’ (n 36), p. 267.
228
June 1977 to the Geneva Conventions of 12 August 1949 (n 141), p. 516, para. 1679; See also Nils Melzer,
Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law
(n 170), p. 52.
229
Rules (n 141), p. 22-23.
230
Inter-American Commission on Human Rights, Third Report on the Human Rights Situation in Colombia (26
February 1999) OEA/Ser.L/V/II.102, Doc. 9 rev. 1, paras. 53 and 56.
231
Rules (n 141), p. 23.
33
Considering PMSC personnel as actors carrying out activities amounting to IDPH, they may
theoretically not be held responsible under ICL for such conduct as it is not considered unlawful
under IHL. It is, however, possible that individual private contractors are subjected to domestic
legal procedures since States are free to adopt national legislation making participation in
hostilities punishable, whether the participation is direct or indirect.232 Finally, as scholars and
practitioners accuse the concept of DPH in general, and the ICRC’s interpretation in particular
for being too restrictive, the question remains as to what direction the parallel concept of IDPH
is going to develop in.233 Will it, responsive to the civilianisation and privatisation of armed
conflict and high reliance on PMSCs, result in a broadening of the already existing concept of
DPH to encompass certain activities that would currently be considered IDPH, and thereby
safeguard the principle of distinction?234 Or, will it develop in a direction of further clarification
and legal regulation, potentially as an independent concept of IHL?
232
Rules (n 141), p. 23.
233
Shannon Bosch, ‘The International Humanitarian Law Notion of Direct Participation of the ICRC Interpretive
Guidance and Subsequent Debate’ (2014) 17 Potchefstroom Electronic Law Journal 999, p. 1005.
234
Andreas Wenger and Simon J. A. Mason, ‘The Civilianization of Armed Conflict: Trends and Implications’
(n 11), p. 835.
34
4. Addressing the Legal Prospects
Having stated that an estimation and definite determination of private contractors’ character is
much complicated and multi-layered, their involvement in armed conflict ultimately surfaces
three main issues – all of which are more or less direct results of these actors’ weak legal status.
First, private contractors’ involvement in controversial military operations contributes to an
obscuring of the principle of distinction, next it has a tendency to culminate in a lack of
accountability for potential violations of IHL and/or IHRL, and ultimately impunity. Third, the
palpable legal side effects deriving from privatised war in general, and the blurring of the
separating line between civilians and combatants in particular, are however not concerned only
with innocent civilians. Essentially, these effects are also concerned with the PMSC staff
themselves, as it has an impact on their targetability.
4.1 Weakening the Principle of Distinction

Out of the three discussed legal implications deriving from the presence and use of PMSCs in
armed conflicts, it is the first one that comprises the perhaps most imminent threat against IHL
at large. This threat is posed by the way in which PMSC personnel conduct activities in a grey
zone between DPH and IDPH, and thereby undermines the principle of distinction; a dilemma
which is essentially related to the legitimate versus illegitimate use of force. The clear and
reliable division between non-combatants and combatants that is encouraged by IHL, as a
central tenet of the law of armed conflict, is founded upon the idea that combatants are the
primary agents of armed conflict.235 Thus, categorising private contractors as civilians (non-
combatants) by assumption provided that they are not formally incorporated into the regular
armed forces of a party to a conflict, suggests that their use of force may be illegal, whether
employed in defence or offence. This normative collision between PMS contractors’
assumptional legal status and their actual conduct is also reflected in the ICRC’s narrow
Interpretive Guidance. Application of the Interpretive Guidance to DPH, as a conventionally
undefined concept, implies that a great number of activities commonly undertaken by PMSCs
would fall under IDPH. This would ultimately protect PMS contractors from being made
legitimate targets of direct attack. In this regard, the argument is that that the extension of
civilian protection to PMSC personnel undertaking dubious military and security services
compromises the fundamental protection of other civilians.236 However, an opposite approach
that would consider all PMSC support activities as DPH would likewise have a negative impact
on the overall civilian protection. For instance, the categorisation and status of other civilians
employed within the war-related sector and industries would risk being questioned.237
Moreover, assuming that PMSC personnel are civilians, the use of PMSCs poses a great
challenge to the principle of distinction in regard to the concept of DPH’s temporal scope and
the so called “revolving door”. The revolving door refers to the civilian loss and regain of
protection against direct attack which run in parallel to the intervals of one’s engagement in
235
236
Participation and its Consequences’ (n 159), p. 467.
237
This view is moreover affirmed by the GCIII which foresees civilian performance of tasks like the supplying
of armed forces with shelter and food while keeping the civilian status, see Geneva Convention (III) Relative to
the Treatment of Prisoners of War (n 169), Article 4(A)(4).
35
DPH.238 Thus rather than being a malfunction, the revolving door is an integral part of IHL
which prevents civilians from being subjected to attack for the time that they do not present a
military threat.239 However, the revolving door of protection is only accessible to those civilians
whose DPH was spontaneous and disorganised.240 This implies that for the purpose of PMSCs,
the use of for example contractors guarding military infrastructures on an on/off duty basis,
may be a way of exploiting the revolving door.
An additional legal issue related to PMSCs’ presence in armed conflict as a means of

undermining the principle of distinction is the one of human shields. Rather than being a strictly
legal term, the notion of a ‘human shield’ is a political and military expression which refers to
the presence of civilians in or around a military objective with the primary intention to
discourage an enemy from engaging with attack.241 The concept of human shields also
encompasses situations where a conflicting party locates its military assets amongst, or, in close
proximity to, a civilian population or civilian objects with the purpose to instill in its enemy a
fear of violating the principle of distinction.242 Moreover, the term may similarly be used to
describe civilian persons who literally shield combatants during armed attacks by marching,
voluntary or involuntary, in front of soldiers active in close combat.243
The prohibition of using human shields in armed conflict is set forth in the GCIII with respect
to POWS, the Fourth Geneva Convention with respect to protected civilians, and the API with
respect to civilians more generally.244 Notwithstanding that international law, through Article
8(2)(b)(xxiii) of the Rome Statute, recognises that “utili[s]ing the presence of a civilian or other
protected person to render certain points, areas or military forces immune from military
operations”245 is an international war crime in IACs, the use of human shields is also
criminalised under the domestic legislation of many States.246 However, due to the inherent
difficulties in determining whether human shields are doing so on a voluntary or involuntary
basis, no distinction between these two categories can be made in the application of IHL. All
civilians must thus be treated as ‘ordinary’ civilians protected from attack, regardless if they
238
239
ibid.
240
ibid, p. 70-71; Kenneth Watkin, ‘Opportunity Lost: Organized Armed Groups and the ICRC “Direct
Participation in Hostilities” Interpretive Guidance’ (2009-2010) 42 International Law and Politics 641, p. 662;
Gary D. Solis, Law of Armed Conflict: International Humanitarian Law in War (Cambridge University Press
2010), p. 206; Nils Melzer, ‘Keeping the Balance Between Military Necessity and Humanity: A Response to
Four Critiques of the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities (2010) 42
International Law and Politics 831, p. 846; Shannon Bosch, ‘A Legal Analysis of How the International
Committee of the Red Cross’ Interpretation of the Revolving Door Phenomenon Applies in the Case of Africa’s
Child Soldiers’ (2015) 41 African Security Review 3, p. 6-7.
241
Rules (n 141), p. 339; Definitions, ‘Definitions for Human Shield’ (Stands 4 Network) available at:
<https://www.definitions.net/definition/human+shield> accessed 8 May 2021.
242
It is established as a matter of CIL that the act of intentionally positioning military objectives within or near
densely populated areas must be avoided, see Rule 23 in Jean-Marie Henckaerts and Louise Doswald-Beck,
Customary International Humanitarian Law – Volume I: Rules (n 141), p. 71-72.
243
ibid, p. 339-340.
244
Geneva Convention (III) Relative to the Treatment of Prisoners of War (n 169), Article 23 para. 1; Geneva
Convention (IV) Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered
into force 21 October 1950) 75 UNTS 287, Article 28; Protocol (I) Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of International Armed Conflict (n 40), Article 51(7).
245
Rome Statute of the International Criminal Court (n 168), Article 8(2)(b)(xxiii).
246
Rules (n 141), p. 337.
36
are forcibly placed in front of a military objective or because of one’s own free will. To this
end, the widespread use of PMSC personnel acting as security guards bears a substantial risk
for making distinctions between voluntary and involuntary human shields, and by that reduce
the general protection of civilians. The issue of exploiting PMSC personnel as human shields
or by other means which may put them in harm’s way, will be more thoroughly dealt with in
regard to the third legal consequence deriving from private contractors’ vague legal status.
In conclusion, the Interpretive Guidance together with the international attempts to regulate the
PMS industry have not been revolutionary in terms of clarifying the legal status of private
contractors. Therefore, given the above illustrated negative impacts the ambiguity around the
legal classification of PMSC personnel has on the principle of distinction, it appears self-
evident that the current situation requires explicit legal clarification or otherwise a special status
for private contractors. Preferably, this should be achieved by the adoption of a legally binding
instrument dealing with PMSCs in general, and the more controversial aspects related to the
presence and use of such companies in armed conflict in particular. The opportunities for the
adoption of a new legal tool on this matter will be further elaborated on below.
4.2 Accountability and Impunity

The second legal controversy related to PMSCs’ involvement in armed conflict is the issue of
litigation. One stark example highlighting this issue is the aftermath of the incidents at Abu
Ghraib detention facility in Iraq in 2004.247 While a military investigation looking into the
participation of regular military officers in the abuse of detainees at Abu Ghraib resulted in
prison sentences, none of the involved CACI International Inc. and Titan Corp employees were
criminally charged with any crime.248 The UN Working Group on Mercenaries has found that
“PMSCs have succeeded in creating a situation of diffused responsibility and lack of
accountability through a labyrinth of contractual and insurance layers and shells”249. However,
the door to impunity for IHL and/or IHRL violations committed by PMS contractors has not
been opened solely by the complexities of contracts and insurances with evasive effects, but
also, as implied and emphasised throughout this thesis, by the indefinite legal status of PMSC
personnel. Pointing at the lack of effective accountability within the PMS industry resulting
from private contractors’ ambiguous legal standing, Singer once wrote that, “although private
military firms and their employees are now integral parts of many military operations, they tend
to fall through the cracks of current legal codes, which sharply distinguish civilians from
soldiers. Contractors are not quite civilians, given that they often carry and use weapons,
interrogate prisoners, load bombs and fulfil other critical military roles. Yet they are not quite
soldiers, either”250.
As this thesis’ examination of the IHL framework suggests, private contractors do not fall
completely outside of the existing categories of persons under IHL, why there should
reasonably be a practical avenue to demanding accountability of these actors. For rather than
occupying some sort of exclusive legal vacuum, private contractors are more accurately to be
considered non-combatants who may take DPH in armed conflict under certain circumstances
247
Chia Lehnardt, ‘Individual Liability of Private Military Personnel under International Criminal Law’ (n 42),
p. 1016.
248
Peter Spiegel, ‘No Contractors Facing Abu Ghraib Abuse Charges’ Financial Times (9 August 2005); Chia
Lehnardt, ‘Individual Liability of Private Military Personnel under International Criminal Law’ (n 42), p. 1016.
249
José L. Gómez del Prado, ‘Why Private Military and Security Companies Should Be Regulated’ (n 127), p. 3.
250
Peter W. Singer, ‘Outsourcing the War’ (2005) 84 Foreign Affairs 119, p. 1.
37
(which is not necessarily in violation of IHL). Nevertheless, following Singer’s view: while not
being entirely excluded by IHL’s categories of persons, neither are private contractors
undoubtedly included within these definitions of persons. This is a dilemma which complicates
determination of the lawfulness or unlawfulness of a PMSC action both during and post
conduct. Furthermore, it is a concern which further contributes to the international community’s
and governments’ far-reaching challenges in making private contractors assume accountability
for their misconduct.251
Theoretically, in order to avoid its own liability under the law of State responsibility, the State
on whose behalf a PMSC acts, ought to have an interest in ensuring the prosecution and
punishment of private contractors responsible for violations of IHL and/or IHRL.252 Yet in
practice, such interest seems scarce. From a preventative point of view, violations of IHL and
IHRL and the related lack of accountability could be partly resolved by placing restrictions on
States’ outsourcing and delegation of ‘inherently State functions’ related to the use of force.
This option is, as supra mentioned, an underlying premise of the UN’s Draft Convention aimed
at retaining the State’s monopoly on the legitimate use of force in a time when “increasing and
alarming violations of [IHRL] and [IHL] committed by PMSCs and their personnel”253 occur.254
Yet as the Draft Convention’s proposition for a complete ban of the outsourcing of ‘inherently
State functions’ was met with strong opposition, the likeliness for accepting a partial limitation
in a new hard law tool is however more reasonable. By limiting PMSCs from conducting the
most controversial services which involve a type of force that bears an increased risk for
violations of IHL and/or IHRL, the use of force employed in close proximity to the tactical
battlefield will be left with those having combatant status in the regular armed forces of the
State hiring a PMSC.255 Moreover, if certain ‘inherently State functions’ would be arbitrarily
outsourced to PMSCs beyond such a legally binding limitation anyway, it would become a
question of attribution to the State hiring the PMSC and subsequently regulated by the doctrine
of State responsibility.256
As a complementary measure to restricting States’ opportunities to outsource services involving

a use of force, the lack of accountability should also be addressed by establishing permanent
and more robust oversight systems. This should be done at both a corporate/industry and, even
more importantly, an international level. At an industry and even domestic level, PMSCs should
be required to investigate alleged violations committed by their own employees and
communicate investigation results to relevant state authorities, so that they can proceed with
prosecution if needed. This could have both a deterrent, preventative effect and a corrective,
accountability enhancing effect when violations can be proved. At an international level, the
suggested new hard law should include the creation of an institutionalised international
251
252
Ottavio Quirico, ‘The Criminal Responsibility of Private Military and Security Company Personnel under
International Humanitarian Law’ in Francesco Francioni and Natalino Ronzitti (eds), War by Contract: Human
Rights, Humanitarian Law, and Private Contractors (Oxford University Press 2011), p. 441.
253
119), Preamble, para. 22.
254
ibid, Preamble, para. 9 and Article 1(1).
255
PMSC personnel may however be outsourced to protect installations against non-conflict related actions, i.e.
common criminality, see Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities
under International Humanitarian Law (n 170), p. 64 and Tobias Vestner, ‘Targeting Private Military and
Security Companies’ (n 36), p. 273.
256
International Humanitarian Law’ (n 251), p. 441.
38
monitoring mechanism mandated to broadly observe PMS activities and compliance with IHL
and IHRL. Furthermore, to avoid impunity resulting from territorial jurisdiction loopholes, the
proposed legal tool should also provide for clear jurisdictional rules dealing with the three
different kinds of States involved in the hiring of PMSCs respectively.257
Otherwise from a corrective perspective, the currently available responses to PMS contractors’
violations of IHL and/or IHRL are rather limited. Domestic avenues for holding private
contractors to account are generally restricted both due to the incapacity of contracting States
to prosecute these actors (the collection of evidence, for example, often requires international
cooperation), as well as home States’ reluctance to prosecute their own troops or other
personnel for a fear of demoralisation.258 Looking at the examined industry’s voluntary
commitments and single PMSCs’ initiatives alone, they promise no guarantee for full and solid
accountability of PMSCs and their personnel. Moreover, the international responses too are
characterised by scarcity since IHL is a branch of law with no avenues of international
enforcement of its own. Rather, IHL firstly relies on the internal disciplinary systems of armed
forces, secondly on domestic courts, and thirdly the supplementary ad hoc and permanent
international criminal tribunals.259 Considering PMSCs more specifically, it appears that the
implementation of individual criminal responsibility is much dependent on not only a genuine
will to proceed with business level investigations for alleged violations, but also domestic
resources (which may limited when prosecutions are to be conducted in a State where armed
conflict is ongoing or has recently taken place), and satisfaction of extremely high thresholds
of evidence.260
To conclude, the lack of effective oversight and accountability for PMSCs remains a challenge
to the international community. In the absence of an international legally binding tool for
regulating the discussed industry, the implementation of domestic legislation is highly
conditional of the States.261 Nonetheless, even in cases where contracting, territorial or home
States are theoretically capable of enforcing their domestic laws when violations of IHL and/or
IHRL occur, the cross border involvement of PMSCs unfortunately tend to leave private
contractors the possibility to escape enforcement of such laws. Therefore, future regulation
must set an international jurisdictional standard adapted to this to effectively close the
accountability gap.
4.3 Targetability Risks of the Private Contractors Themselves

As this research has implied, the PMS industry is very much characterised by the lack of legal
certainty. This is an issue which does not only make it difficult for enemy forces to conduct
reliable case-by-case determinations of the legal status of PMSC staff, but also for the PMSC
planners and operators themselves, especially so in dynamic war zones. Essentially, the
257
Contracting States (the State hiring a PMSC), territorial States (the State in which a PMSC is conducting its
mission) and home States (the State in which a PMSC is registered), see heading ‘1.4 Delimitation’.
258
International Humanitarian Law’ (n 251), p. 441-442.
259
International Committee of the Red Cross (ICRC), ‘International Humanitarian Law in Domestic Law’
(International Committee of the Red Cross [ICRC] Article, 1 January 2015) available at:
<https://www.icrc.org/en/document/international-humanitarian-law-domestic-law> accessed 17 May 2021.
260
261
Anne-Marie Buzatu and Benjamin S. Buckland, Private Military & Security Companies: Future Challenges in
Security Governance (2015) DCAF Horizon Working Paper No. 3, p. 18.
39
complexities of modern conflicts and vague legal status of private contractors appear to curtail
the predictability and foreseeability of the consequences for PMS operators’ actions, thus
having a potential impact on their safety.
To enhance legal certainty and improve the safety of PMSC personnel, there are a number of
alternative routes – some more realistic than others. One suggestion for States is to integrate
the PMSCs they hire into their armed forces. This is however highly unlikely owing to the joint
State interest in outsourcing war related undertakings to, inter alia, minimise expenses deriving
from the engagement of armed forces. A more general and realistic recommendation to those
hiring PMSCs is to avoid placing the contractors in situations where they would easily become
civilians taking DPH. This approach is closely connected to the second hard law suggestion
presented in this thesis; limiting the outsourcing of ‘inherently State functions’ related to the
use of force. However, while refraining from placing contracted private personnel in legally
ambiguous situations does not per se require any new legal provision, but simply a careful
observation of Article 58 of the API, it could – in combination with the aforementioned
limitation on State outsourcing – improve the safety of private contractors.262 The need for
States to pay special attention to factors that could be indicative of a particular service’s risks
of making PMS contractors (involuntarily) involved in DPH, is also stressed in the ‘Good
Practices’ section of the Montreux Document with regards to the determination of services that
ought not to be outsourced.263
Another way to avoid confusion and thereby enhance the safety of PMSC staff is by making
PMS specific legal training and testing of the operators before deployment compulsory. Listing
legal training as part of a criteria and procedures for the selection, authorisation and finally
contracting of PMSCs, would improve private contractors’ knowledge of their own legal status
and prepare them for potential situations and dilemmas that may emerge due to their
targetability.264 Because, considering the significant differences in tasks, obligations and legal
status between private contractors and militaries of a State’s regular armed forces, it is simply
insufficient for PMSCs to rely on the training their staff may (or may not) have received prior
to being privately hired.265 In addition to the differences in methods and content of the legal
training offered to private versus public military/security personnel, PMS contractors’
engagement in protective processes can also be a question of resources and motivation.
Presumably, even in case a PMSC has resources available for adequate legal training of their
operators to adhere to IHL and/or IHRL, the use of them may be deterred by financial
considerations and profit maximisation.
Finally, this thesis has established that while some private contractors may be considered lawful
targets of attack, others are civilians and protected as such in accordance with the principle of
distinction. A substantial part of the responsibility for the safety of PMSC personnel belongs to
who plan, target or attack persons or objectives nearby private contractors, hence bringing
clarity on the targetability of these private actors by legal means would enhance States’
compliance with their respective responsibilities under IHL. For even though the imminent risks
of injury or even death is an inherent component to the industry private contractors work in,
262
263
Operations of Private Military and Security Companies During Armed Conflict (n 39), p. 16; Alice S. Debarre,
‘U.S.-Hired Private Military and Security Companies in Armed Conflict: Indirect Participation and its
Consequences’ (n 159), p. 444-445.
264
265
Emanuela-Chiara Gillard, ‘Business Goes to War: Private Military/Security Companies and International
40
and for which they are generously compensated, that does not simply absolve parties in armed
conflict from respecting and fulfilling their IHL obligations.266
4.4 Final Remarks

The ways and options to seek to regulate the controversial PMS industry to safeguard
fundamental principles of IHL are numerous. Some advocate for (1) changing the definition of
a mercenary to encompass also PMS contractors, some for (2) a legally binding international
convention on the matter, while others argue for (3) national regulation by licensing and
oversight mechanisms. As the research of this thesis suggests, the first option – broadening the
scope of Article 47 of the API – would arguably be a deficient solution for minimising PMSCs’
negative impact on IHL. The mounting evidence indicating that PMSC personnel are not
mercenaries in a legal sense rather imply the need for a new tool tailored exclusively to deal
with the corporatisation and unique characteristics of private contractors, as distinct from
mercenaries. Furthermore, the previous international attempts to regulate the PMS industry by
licensing and oversight mechanisms on a voluntary and national level have, as revealed by their
remaining soft law status, been insufficient, why also the third option for regulation is deemed
inappropriate. This thesis thus concludes that the second option – adopting a hard law
instrument that would deal exclusively with the extraordinary features of PMSCs as actors in
armed conflict – would arguably the best solution for overcoming the negative legal effects
consequential to the vague legal status of private contractors. However, it appears to be little
consensus on the adoption of a binding international convention to regulate the PMS industry.
Rather than going with a hard law process like the Draft Convention which attracts States with
an expressed opposition to PMSCs, States with close ties to the PMS industry are more likely
to entrench soft law processes such as the Montreux Document and the ICoC.267 The current
case-by-case approach offered by IHL in the determination of DPH of private contractors,
departing from the assumption that PMSC personnel are civilians, tends to shield PMSCs and
their employees to some extent while conducting activities in close proximity to the tactical
battlefield. And with respect to hard law processes, as explored in this thesis, the experts of the
UN Working Group on Mercenaries’ and their successors’ have faced substantial obstacles in
their elaborations on a binding international instrument regulating the actions and effective
accountability of PMSCs.268 Due to the strong dichotomy in approaches between States wishing
to enforce hard law obligations and others preferring soft law responses based on self-
regulation, the progress towards the creation of an international binding instrument is
apparently time consuming.269 Further indicated by the limited number of prosecutions of PMS
contractors responsible for violations of IHL and/or IHRL, one could argue that PMSCs
currently are, at least to some extent, regulating the law rather than being regulated by the law.
This is ultimately a reality which enhances continuous IHL and IHRL abuses.
266
267
268
UN Human Rights Special Procedures (UNHRSP) Mercenarism and Private Military and Security Companies
(2018) HRC/NONE/2018/40, p. 25.
269
ibid.
41
Conclusively, the current vague legal landscape in which PMSCs operate threatens the sanctity
of the principle of distinction and complicates enemy forces’ application of it.270 The previous
initiatives to regulate the PMS industry are unable to provide a realistic alternative to the
necessary national and international regulation of the operation of PMSCs.271 Thus, the
international community should be, as expressed in the UN Draft Convention, “[d]etermined to
take all necessary measures to combat impunity by establishing jurisdiction and devising
mechanisms to investigate reports of criminal activities and apprehend those individuals and
entities involved in criminal activities, including senior officials of PMSCs, with a view to their
prosecution and punishment”272. To end the compromising of the delineating line between
civilians and combatants, so that those who are to be rightfully protected from the effects of
military operations can be so, effective hard law must be adopted primarily at an international
level. The following five de lege ferenda arguments to be incorporated in future regulation have
been introduced in this thesis: (1) clarification on the legal status or a new special status for
private contractors; (2) limiting the outsourcing of ‘inherently State functions’; (3) establishing
an activity and compliance monitoring system at both an industry and international level; (4)
clear jurisdictional rules in an effective and holistic accountability framework, and; (5) a fixed
criteria and compulsory procedures for the authorisation, selection and contracting of
PMSCs.273
270
Participation and its Consequences’ (n 159), p. 467-468.
271
272
119), Preamble, para. 13.
273
Since PMSCs perhaps even more often operate in non-conflict environments (i.e. where IHL does not apply)
than they do in armed conflicts, the suggested international regulation should, obviously, also address and clarify
private contractors’ obligations with regards to the enforcement of human rights. However, specific de lege ferenda
arguments based exclusively on IHRL is outside of this thesis’ scope of examination.
42
5. Conclusion
Following the Weberian realist understanding of the modern State, IHL – being part of public
international law – is a body of law traditionally recognised for regulating the relationships
between States. Over time, IHL has nevertheless evolved to cover also a broader range of actors
including international organisations and non-State armed groups for example. However, this
inclusiveness has now come to a watershed with regards to the global PMS industry which
consists of companies. PMSCs as private actors performing conventional State functions have
surfaced tensions between the free market and demands of respect for IHL and IHRL, and the
security debate has accordingly been put on a delicate line.274
The legal debate relating to PMSCs is primarily influenced by two major camps of scholars.
The first one is represented by those considering PMS contractors to be the modern equivalent
of traditional mercenaries. The opposite side of scholars nevertheless argue that even though
PMSCs are currently operating in a vacuum of effective legal regulation, a strictly universal
approach which fails to observe the unique characteristics of PMSCs that separates private
contractors from mercenaries, is simply unacceptable.275 Thus, based on the view of the latter
camp of scholars, this thesis’ purpose was to investigate the use and presence of PMSCs in
armed conflict to determine if there are any legal consequences deriving from the ambiguous
legal standing of PMSC personnel and their performance of PMS activities in conflict affected
areas. To fulfil the purpose of this thesis, it has asked two questions. First, how PMS activities
correspond to the concept of DPH, as well as the emerging concept of IDPH. And second,
whether PMSCs, in the absence of a detailed legal regime, constitute an infringement of IHL
and, if that is the case, how effective legal regulation could be achieved.
The research of this thesis has established that rather than operating in a legal vacuum, PMS
contractors are in fact bound by, at a minimum, customary international humanitarian rules and
principles. Nevertheless, PMSC employees’ legal standing is surrounded by ambiguity and
international attempts to regulate the contested industry and clarify the legal classification,
rights and obligations of private contractors, have been woefully inadequate as to uphold the
principle of distinction in relation to the increasing privatisation war. Hence, the thesis has
found that while States continue to hire PMSCs to perform controversial services which does
not only compromise the principle of distinction, but also entail an increased risk for the private
contractors themselves being directly targeted or becoming collateral damage, there is a need
for legal clarification on the status, or, potentially even a special category of persons for these
private actors.276
Indicated by the failure of previous attempts to regulate the PMS industry, future legal
regulation of PMSCs and their employees would be best achieved through the adoption of a
hard law tool. This thesis concludes that an international convention exclusively aimed at taking
into consideration the peculiarities of PMSCs should address the following five elements:
clarification on private contractors’ legal standing or a new special status; explicit limitations
on outsourcing ‘inherently State functions’; a monitoring system for PMSC’ activities and
274
on Regulation, Oversight and Monitoring of Private Military and Security Companies’ (n 121), p. 5.
275
Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination (24
August 2007) UN Doc A/62/301, para. 69; Scott C. Goddard, ‘The Private Military Company: A Legitimate
International Entity Within Modern Conflict’ (n 7), p. iii.
276
43
compliance with IHL and IHRL; rules on jurisdiction in a framework of accountability, and; a
fixed criteria setting out specific procedures for the selection, authorisation and contracting of
PMSCs.
All in all, this thesis has suggested that there is an evident need for the adoption of a new
international and legally binding tool to adequately deal with the contemporary challenges
PMSCs poses to IHL.
44
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JURIDICUM

Private Military and Security Companies in Armed

RV101G, Rättsvetenskaplig masterkurs med examensarbete, 30 högskolepoäng

Examinator: Erika Lunell

CIL Customary International Law

DPH Direct Participation in Hostilities

GCIII Geneva Convention (III) Relative to the Treatment of Prisoners of

IAC International Armed Conflict

ICL International Criminal Law

ICoC International Code of Conduct

ICRC International Committee of the Red Cross

IDPH Indirect Participation in Hostilities

IHL International Humanitarian Law

NIAC Non-International Armed Conflict

OEWG Open-Ended Intergovernmental Working Group

PMCs Private Military Companies

PMS Private Military and Security

PSCs Private Security Companies

PMSCs Private Military and Security Companies

POW Prisoner of War

UNHRC United Nations Human Rights Council

– James K. Wither, Professor of National Security Studies

To contribute to the common understanding of privatisation and arguably even civilianisation

1.5 Method and Material

2.2 Scope of Services

2.3.1 The Montreux Document

2.3.2 The International Code of Conduct

2.3.3 The UN Draft Convention

Prepared by the UN Working Group on Mercenaries, the UN Draft Convention on the

2.3.5 Evaluation of the Initiatives

3.2 The Principle of Distinction

Making an opposite determination of an individual’s character as a combatant comes with a

3.2.1 Definition of a Civilian

3.2.2 Definition of a Combatant

Following the assumptional relationship between civilians and combatants, factual

3.2.3 Direct Participation in Hostilities

In an effort to clarify DPH – which is arguably characterised by its controversial lack of

Instead of formulating an abstract definition of general application of DPH that would

3.2.3.1 Threshold of Harm

3.2.3.2 Direct Causation

As uncontroversial as the belligerent nexus element may seem, determination of it in PMSC

In conclusion, being PMSC staff in an armed conflict requires complex determinations of

3.2.4 Indirect Participation in Hostilities

4.1 Weakening the Principle of Distinction

An additional legal issue related to PMSCs’ presence in armed conflict as a means of

4.2 Accountability and Impunity

As a complementary measure to restricting States’ opportunities to outsource services involving

4.3 Targetability Risks of the Private Contractors Themselves

4.4 Final Remarks

Prosecutor v. Tihomir Blaškić (Trial Judgment) IT-95-14-T (3 March 2000)

Doswald-Beck, L, ‘Private Military Companies Under International Humanitarian Law’ in

Henckaerts, J-M and Doswald-Beck, L, Customary International Humanitarian Law – Volume

Kleineman, J, ‘Rättsdogmatisk Metod’ in Nääv, M and Zamboni, M (eds), Juridisk Metodlära

Oppenheim, L, International Law: A Treatise, Volume 1 (Longmans, Green and Co 1905)

Sandoz, Y, Swinarski, C and Zimmermann, B, Commentary on the Additional Protocols of 8

Sassòli, M, International Humanitarian Law: Rules, Controversies, and Solutions to Problems

Silber, L and Little, A, Yugoslavia: Death of a Nation (Penguin Books 1997)

Dörmann, K, ‘The Legal Situation of “Unlawful/Unprivileged Combatants”’ (2003) 85

Faite, A, ‘Involvement of Private Contractors in Armed Conflict: Implications Under