Private Military Companies: Human Rights in the Legal ‘Grey Zone’
As the conflict in Ukraine progresses, attention has increasingly turned to Russia’s recruitment and deployment of soldiers from private military companies (PMCs), in particular the Wagner Group under the leadership of Yevgeny Prigozhin. Reports and analyses of their activities have since become more widespread, with human rights organisations focusing on the human rights abuses of such organisations and individuals. International awareness and condemnation of such activities are crucial, however, practical calls to ensure that accountability is assigned and justice served have been comparatively fewer. The involvement of individual soldiers, experienced commanders, complex organisational structures, and a number of state ministries and institutions begs the question of who is responsible, and by extension, who needs to be brought before the courts when it is all over. Despite the serving of an arrest warrant for the Russian president Vladimir Putin by the International Criminal Court, the legal issue of PMC involvement, and their rights vis-à-vis the courts, remains less clear.
Despite being considered ‘narrow and difficult to apply’ by most legal scholars and practitioners, international law (IL), and specifically international humanitarian law (IHL) as established by the Geneva Conventions and Additional Protocol I (AP I), distinguishes between three main categories of participants in conflict which PMC employees may fall into:
Combatants - individuals belonging to the official armed forces of a state, often bearing official state symbols and signs
Civilians - non-combatants, who may nevertheless take part in conflict through active resistance
Mercenaries - privately recruited soldiers that are not part of, or incorporated into, state armed forces, and whose motivation is mainly financial reward or compensation for services rendered
The main problem with these categories is that PMC employees might fit certain, but not all characteristics of each. The Wagner Group, for example, is made up of highly trained individuals with financial reward as the primary motivation, but their extensive links to the Russian state and military structures, as well as their obscure legal existence, mean they tow a line somewhere between combatant and mercenary. The types of activities that PMC employees often engage in may also classify them as civilians, especially in the case of indirect participation and operational support. This indeed makes the previously-mentioned criticism seem warranted, especially for the purposes of PMC regulation and accountability for human rights abuses. The two issues stemming from this legal grey zone are the conference of prisoner-of-war (POW) status on PMC employees, and therefore the legal privileges that come with such status, as well as the aforementioned issue of responsibility, including state and commander responsibility.
Due to the difficulty of legally classifying PMCs and their employees, and therefore their responsibility and accountability in IHL, two sets of proposals have been made. The first solution advocated by legal experts and international organisations, including the United Nations, is the promotion of national legislation and regulation of PMCs. In the case of severe human rights abuses, this pertains specifically to the IL principle of universal jurisdiction in the case of war crimes and crimes against humanity. Not all states, however, have laws to give them universal jurisdiction, and certain conflict-ridden states often lack the institutional structures to put such laws in place, or apply them in practice, in the first place. In such cases, individual PMC employees, or the companies themselves, may walk away free of charges, leaving both perpetrators and victims without justice. At the same time, PMCs and commanders are more likely to obtain such verdicts, while individual soldiers get reprimanded, if in disproportionately minor ways. This is because IHL makes individual responsibility paramount, stating that obeying orders cannot be used as a case of defence.
The second solution proposed, and once again supported by the UN, is the adoption of, and adherence to, the International Code of Conduct for Private Security Service Providers (hereafter, the Code). The Code includes sections on the conduct of personnel, including general conduct, use of force, detention, inhuman treatment or punishment of others, abuse, human trafficking, and identification and registration of personnel. Nevertheless, these provisions are not legally binding, and require the aforementioned national adoption of appropriate legislation and regulation. Furthermore, the issues of assigning responsibility (Section 36), verifiability, and certain vague language on personnel regulation (such as “due consideration of confidentiality”) persist.
As long as the IHL remains unclear about the legal status of PMCs and their employees, those engaging in human rights abuses will continue to be prosecuted on an individual and case-by-case basis. This not only raises issues of responsibility, accountability, and inconsistency, but carries significant risk in present and future conflict situations around the world, especially as the practices of government privatisation and outsourcing of state functions continue in an effort to lessen the burden of increasingly strained budgets. In theory, the squabble over legal terms poses challenges for classification of PMCs. In practice, the incentives for these PMCs, and the states employing them, to take advantage of such legal loopholes means that although individual perpetrators sometimes get punished, the organisations employing them do not, while victims rarely get the justice they deserve.