Private military and security firms and erosion of the state monopoly on the use of force
Recommendation 1858
(2009)
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 29 January 2009 (8th Sitting) (see Doc. 11787, report of the Political Affairs Committee, rapporteur:
Mr Wodarg; and Doc. 11801, opinion of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Sasi). Text adopted
by the Assembly on 29 January 2009 (8th Sitting).
- Thesaurus
1. In recent
years, there has been a growing trend in a number of states, including
in Europe, to involve private companies in assuming various tasks
in the military and security areas, which traditionally had been
a domain for state actors.
2. According to some research publications, there are currently
more than a million employees working as private soldiers or security
officers for over one thousand private military and/or security
companies (PMSCs) in over one hundred countries in the world. In
2006, the turnover in this new branch of the service industry was estimated
at about US$200 billion.
3. As this new industry seeks to develop its own markets, serious
questions arise of a systemic and principled nature. On the one
hand, most of the large PMSCs are organised as shareholder companies
or are part of profit-oriented entreprises. As such, they have every
interest in the outbreak or maintenance of conflicts as a means
of securing their economic growth. The more conflicts increase,
the more the market for their services becomes profitable. On the
other hand, for states, the emergence and pursuit of conflicts place
a major strain on public budgets and resources, leading to a conflict
of interests between the public and private sectors.
4. States are the main contractors of PMSCs, but other actors,
for example major international organisations (such as the United
Nations), private businesses, humanitarian agencies, the media and
non-governmental organisations, turn more and more often to these
services to provide security in zones of conflict or instability.
5. The increasing privatisation of the military and security
apparatuses undermines the traditional position of a state as the
only actor allowed to legitimately and lawfully use force, both
internally and externally. It presents a fundamental challenge to
modern democracies, as the right to use force shifts from the state, guarantor
of the public interest, to private actors driven by corporate interests.
6. Bearing in mind that PMSCs respond to some real needs and
are already part of reality, states should make every effort to
retain and regain full control over the activities of PMSCs, which
should be limited as much as possible in order to avoid and, as
the case may be, reverse the erosion of the states’ monopoly on
the exercise of force. It is at least necessary and possible to
create an adequate framework for their activities to ensure that
they are carried out in compliance with the basic principles of
democracy, respect for human rights and the rule of law. The legal
framework should take adequate account of the important differences
between military missions on the one hand and security missions
on the other.
7. To date, the main public concern about PMSCs’ activities is
related to possible – and in many cases real – human rights abuses
by the personnel of these private companies and the difficulty of
bringing perpetrators to justice, with the ensuing risk of impunity.
8. PMSCs’ personnel and their employers are bound first and foremost
by the law of the land of the country in which they operate, as
well as by general provisions of international humanitarian law.
They are also bound by provisions of human rights law, insofar as
they perform tasks which are normally performed by state actors. However,
there are multiple difficulties in applying these provisions in
practice.
9. Apart from the deficit of legal answerability, however, the
activities of PMSCs raise a whole range of concerns related to the
lack of democratic control, transparency and accountability, a higher
risk of human rights violations, the growing influence of private
businesses on political choices and policy orientations, the blurred
division of tasks between the military and the police, and the shift
from crisis prevention to rapid reaction and from the civilian handling
of crises to the use of force.
10. As the PMSCs often operate internationally and their activities
have transnational aspects and consequences, there is a clear need
to regulate such activities at the international level. However,
there are no specific legal instruments under existing international
law that explicitly regulate such activities.
11. Many of the challenges arising from the increasing role of
PMSCs reach to the core of the values protected by the Council of
Europe. Our Organisation has therefore particular responsibilities
in addressing the issue of regulating the activities of PMSCs on
the basis of common principles. The Council of Europe, with its experience
in defining, promoting and protecting common standards in the field
of human rights, democracy and the rule of law, offers the appropriate
framework for this, and should take the lead in this process, as
it has before in many other groundbreaking areas.
12. Accordingly, the Parliamentary Assembly recommends that the
Committee of Ministers draw up a Council of Europe instrument aimed
at regulating the relations of its member states with PMSCs and
laying down minimum standards for the activity of these private
companies.
13. The Assembly suggests that such an instrument should, as a
minimum, include the following elements:
13.1 definition of those areas of internal and external security
that must remain a sovereign function of the state and that are
“inherently governmental” in character;
13.2 standardisation of the principles for the safeguard of
the state monopoly on the use of force;
13.3 clear affirmation of the dividing line between internal
and external security as established by law and the constitution;
13.4 confirmation of priority of conflict prevention to rapid
reaction and of the civilian handling of crises instead of the solution
of conflicts by use of force;
13.5 standardisation of the principles for the use of PMSCs;
13.6 determination of criteria regarding the activities, obligations,
duties, responsibilities, including accountability for breaches
of international humanitarian law and human rights abuses, and the
areas of work and competences of PMSCs;
13.7 definition of criteria that must be applied to authorise
PMSCs to provide military and security services;
13.8 introduction of a registration and licensing system for
PMSCs;
13.9 adjustment and harmonisation of national and international
criminal law (especially rules of law enforcement) regarding criminal
acts committed by PMSCs and their personnel;
13.10 introduction of specific rules for PMSCs in civil law
(especially as regards conditions of liability);
13.11 setting up of a legal and regulatory framework for PMSCs
that wish to export their services (for example, mission- and project-oriented
authorisations which provide democratic oversight, control, supervision
as well as accountability and specification of responsibilities;
it would be advisable to combine such regulations with the existing
arms export regimes);
13.12 requirement of parliamentary approval for missions of
PMSCs outside their national territory, and provisions establishing
co-operation, information sharing and assistance between the states
involved;
13.13 application of laws and rules governing deployment of
national military and police forces abroad to PMSCs as well;
13.14 introduction of rules and regulations (for example, a
code of conduct and the requirement to register with the foreign
ministry) for businesses, non-governmental or humanitarian organisations,
etc., that wish to contract PMSCs for their security purposes abroad;
13.15 obligation on the part of the PMSC sector to set up a
framework for self-regulation, including a binding code of conduct
and the establishment of a PMSC Ombudsman and/or a PMSC violations investigation
team. It is understood that any such self-regulation merely complements
and does not replace the control of legality exercised by the competent
state law-enforcement bodies, which shall be seized automatically
of any violations encountered by the proposed self-regulation mechanisms;
13.16 regulations that include the following elements: an effective
vetting and training system for PMSC personnel; an effective oversight
and investigatory system; an effective enforcement system, and the protection
of social rights of PMSCs’ employees.
14. With regard to the possible nature of such an instrument,
the Assembly states its preference for a legally binding document
(convention). However, the Assembly would welcome it if, prior to
drafting such a convention, and in order to achieve a sense of common
purpose, the Committee of Ministers could adopt a recommendation
to the member states.
15. In the meantime, the Assembly recommends that the Committee
of Ministers support, on behalf of the Council of Europe, the Montreux
Document on Private Military and Security Companies which sums up
legal obligations under existing international law and best practices
related to PMSCs’ activities, and call on member states that have
not already done so, to endorse it.