Public International Law and Human Rights Violations by Private Military and Security Companies

"This book explores the human rights consequences of the new mercenarism, as channeled through so called private military and security companies (PMSCs), and offers an overview of the evolution and status quo of both non-legal (soft law and self-regulation) and legal initiatives seeking to limit them. It addresses various topics, including the impact of the presence of non-state actors on human security using the cases of Afghanistan and Syria; research on PMSCs' impact on human rights in specific cases; the insufficiency and ineffectiveness of existing direct and indirect legal prohibitions on the use of mercenaries; various aspects of international human rights law and international humanitarian law related to the conduct of PMSCs; soft law and self regulation mechanisms; and the international minimum standard in general international law regarding the privatization, export, import, and contracting of PMSCs"--Publisher's website Foreword 5 Acknowledgments 7 Contents 8 Introduction 9 Reference 13 Afghanistan and Syria: Nonstate Actors and Their Negative Impact on Human Security 15 1 Introduction 16 2 Nonstate Armed Actors (NSAAS) in the ``New ́ ́ Armed Conflicts 17 3 The Afghan Case: A Fragmented and Violent Environment 20 3.1 The Weakness of the Afghan State After Decades of Conflict 20 3.2 Specific Features of the Afghan Armed Conflict: Asymmetric Warfare 21 3.3 NSAAs in Afghanistan 21 3.3.1 Progovernment Groups 21 3.3.2 Militias, Paramilitaries, and Auxiliary Police Forces 22 3.3.3 PMSCs and the Afghan Public Protection Force (APPF) 23 3.4 Insurgents 24 4 The Syrian Case: Anarchic War and Sectarianism 25 4.1 Specific Features of the Syrian Armed Conflict: The War of All Against All 25 4.2 NSAAs in Syria 26 4.2.1 Militias 26 4.2.2 Mercenaries and PMSCs 27 4.2.3 Foreign Combatants/Terrorists 28 5 Implications for Human Security (HS) 29 6 Conclusions 33 References 35 Delimitation and Presence of PMSCs: Impact on Human Rights 38 1 Introduction 38 2 The Rise of PMSCs: Keys to Understanding the Industry ́s Development 39 3 Delimitation and Presence of PMSCs 42 3.1 Home and Contracting Countries 42 3.2 Services 43 3.3 Territorial Countries 46 3.4 Operational Contexts 48 4 Impact on Human Rights 51 4.1 Main Trends in PMSCs ́ Impact on Human Rights 52 4.2 Analysis by Operational Context 53 4.2.1 Occupations 53 4.2.2 Critical and Strategic Infrastructure 55 4.2.3 Logistics Convoys and/or Escorts 56 4.2.4 Extractive Industry Projects 57 4.2.5 Prisons 58 4.2.6 Borders and Immigration Control 60 4.2.7 Homeland Security 60 5 Conclusions 61 References 62 The Ineffectiveness of the Current Definition of a ``Mercenary ́ ́ in International Humanitarian and Criminal Law 65 1 The Evolution of Mercenarism and the Development of International Norms 1950-2016 66 2 Article 2 of the 1989 International Convention Against the Recruitment, Use, Financing and Training of Mercenaries 74 2.1 Status as a Foreigner 76 2.2 Motivation 77 3 Final Considerations: The Need for a Binding International Instrument Regulating and Monitoring the Activities of PMSCs 80 References 84 Books, Book Chapters and Journal Articles 84 Further Reading 85 International and Regional Organizations 85 United Nations 85 Online Publications 86 Other Online Sites 87 Private Military and Security Companies and Human Rights 88 1 Introduction 88 2 International Human Rights Law and the Obligations of States 90 3 State Responsibility for Human Rights Violations Involving PMSC 91 4 Responsibility of PMSC and the Right to Effective Remedy and Redress 97 4.1 The Legal Liability of the Corporation or Company at the National Level 97 4.2 Criminal Liability of the Legal Person 98 4.3 Administrative Liability 99 4.4 Modes and Forms of Corporate Liability 99 4.5 Liability of Parent Companies for the Acts of Their Subsidiaries 100 4.6 Jurisdiction of National Courts Over Crimes Committed by Transnational Corporations 102 5 Final Considerations 104 References 105 Books and Book Chapters 105 Reports 105 Articles and Press Releases 106 Case Law 106 United Nations and Council of Europe Documents 107 Guidelines, Principles and Other Soft Law Instruments 107 Weblinks 107 Regulations 108 International Soft Law Initiatives: The Opportunities and Limitations of the Montreux Document, ICoC, and Security Operations ... 109 1 Introduction: The Choice for Soft Law 109 2 The UN Guiding Principles on Business and Human Rights 111 2.1 Normative Reference 111 2.2 Origins 112 2.3 Protect, Respect and Remedy Framework 112 2.4 Uptake: A New Benchmark 113 3 Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Privat... 114 3.1 The Two-Part Swiss Initiative 114 3.2 Why a Nonbinding Declaration and a Code of Conduct? 115 3.3 Patchy Implementation of Montreux Commitments by Participating States 116 3.4 What Role for the Montreux Document Forum? 117 3.5 Recommendations 118 4 The International Code of Conduct for Private Security Service Providers and the International Code of Conduct Association 118 4.1 Origins and Content of the ICoC 118 4.2 Governance and Oversight Through the ICoCA 120 4.3 Recent Developments in Key Procedures 121 4.4 Opportunities and Limitations 122 4.4.1 Support for the ICoC/ICoCA 122 4.4.2 Reaching Out to Other Industry Clients 122 4.4.3 Industry Best Practices 123 5 National and International Management System Standards for Security Operations 124 5.1 The Content of ANSI/ASIS PSC.1 and ISO 18788 124 5.2 The Development of ANSI/ASIS PSC.1 and ISO 18788 125 5.3 Not All Certification Standards Are Alike 126 6 Conclusion: Closing Gaps 128 References 129 Ideas on the International Minimum Standard for the Privatization, Export, and Import of Armed Coercion 131 1 Introduction: Between Recommendations for Good Practices and Conventional Regulation 132 2 The Progressive Internationalization of the Sovereign Power of Armed Coercion 134 3 The Nature of Armed Coercion as an Inherently State Function and the General Prohibition on Privatizing, Exporting, and Impo... 136 4 A General Obligation to Exercise Sovereign Competencies (Functional Sovereignty) and a General Duty of Prevention and Protec... 141 5 Specific International Obligations Arising from the General Duty of Prevention and Protection in the Event of Privatization,... 145 5.1 Regulation of Privatization Respecting the Principles of Legality, Transparency, and Proportionality and Ensuring Respect ... 145 5.2 Establishment of a Central Authority and Register as a Means of Vetting 146 5.3 Establishment of a System of Licenses as a Basic Instrument for Prevention and Control 146 5.4 Attributing Responsibility to PMSCs and Their Personnel in the Event of Violations 147 6 Recognition of the General Norm of Attributing Wrongful Acts Committed by PMSCs and Their Personnel to the State 149 7 Conclusion 153 References 155 Books, Book Chapters and Journal Articles 155 International Political Agreements 156 United Nations Organization: General Assembly 156 Other Documents 156 Conclusions 158 Front Matter ....Pages i-ix Introduction (Helena Torroja)....Pages 1-6 Afghanistan and Syria: Nonstate Actors and Their Negative Impact on Human Security (Mario Laborie)....Pages 7-29 Delimitation and Presence of PMSCs: Impact on Human Rights (Felipe Daza)....Pages 31-57 The Ineffectiveness of the Current Definition of a “Mercenary” in International Humanitarian and Criminal Law (José L. Gómez del Prado)....Pages 59-81 Private Military and Security Companies and Human Rights (Carlos Lopez)....Pages 83-103 International Soft Law Initiatives: The Opportunities and Limitations of the Montreux Document, ICoC, and Security Operations Management System Standards (Rebecca DeWinter-Schmitt)....Pages 105-126 Ideas on the International Minimum Standard for the Privatization, Export, and Import of Armed Coercion (Helena Torroja)....Pages 127-153 Conclusions (Helena Torroja)....Pages 155-158