Legal Framework for Private Military and Security Companies - Essay Example

Legal Framework for Private Military and Security Companies Scope The scope of this research shall include definition and legal understanding of the international humanitarian law, events which happened, legislation, case law or any legal issues related to private military and security companies (PMCs/PSCs) and their activities within the European Union. Issues shall be raised and analysis of probable impacts shall be discussed. Objectives The objectives of this research is to point out legal framework or any legal conflicts and issues with regards to the operations of private military and security companies within the European Union which are in conflict with international humanitarian law. Highlighting this will have an indirect impact on the consideration of state legislation and international treatises to reevaluate loopholes and propose solution for the possible conflicts. Reasons for undertaking the research The reason for undertaking this research is to gauge the legal applicability as well as implication of the existence and operations of private military and security companies within the European Union with regards to the international humanitarian law. Conflicts about PMCs/PSCs have been highlighted by international legal observers and other studies yet there has been no clear international agreement as to how legal actions may be conducted in the course of violation of international humanitarian law. Specific actions must address the issue. Background Gillard (2006) proposed that private military and security companies (PMCs/PSCs) have provided security and military functions in armed conflicts which consists of “protection of personnel and military assets, the staffing of checkpoints, the training and advising of armed and security forces, the maintenance of weapons systems, the interrogation of suspects or prisoners, the collection of intelligence and even participation in combat operations,” (626). Another consideration for the services of the PMCs and PSCs are their clients which may range from states, to private corporations, intergovernmental organizations as well as non-governmental organizations (Gillard, 2006). The Private Military and Security Companies in War It was suggested that States play a major role in the regulation of PMCs or PSCs. Two important matters that the States need to consider are careful selection, contracting and oversight procedures and adoption of regulations to increase control and accountability (Cottier, 2006). The nature of these companies or corporations makes them less controlled by existing legal frameworks and much less on international laws with the biggest problems being transparency, control and accountability of their actions (Swiss Initiative, 2006) Currently, it was not officially confirmed how many PMCs/PSCs are operating in Iraq alone, it being the most recent inter-state conflict to date. The United States Government Accountability Office has estimated about 181 companies and some 48,000 employees in a 2006 report (US Accountability Office, 2006). In another report by the United States Department of Defense census, there was an estimated 100,000 contractors operating from the United States, Iraq as well as other countries (Marie, 2006). One point that needs to be elaborated upon also includes the status of the staff of PMCs/PSCs under international humanitarian law. The staff of PMCs/PSCs or even the companies themselves have no technical obligations under international humanitarian law but their employees, specifically states that hire them even when absent in any treaty do. Their status with regards to the law under discussion depends on a case-to-case basis limited only with armed conflict activities. Staffs of PMCs/PSCs occupy a rather grey area of labeling and difficult to ascertain whether civilians, combatants or mercenaries when it comes to international humanitarian law. They may also fall under unprivileged belligerents or unlawful combatants although may no commit any violations of international humanitarian law (Dormann, 2003). While the position is still unclear, the Third Geneva Convention stipulates that the status of a captured person who has taken direct part in hostilities be treated like a prisoner of war pending a decision on his/her status by a competent tribunal (Third Geneva Convention, Article 5). In the European Union (EU), issues that need to be addressed include the legal relationship between contracting entities of employee and the PMC/PSC; operation of PMC/PSC in international armed conflict or post-conflict build-up; and the war-related services of PMCs/PSCs such as interrogation, carriage and use of firearms, non-medical related contact with prisoners, detention, amongst others (Dekker, 2009). Laws and regulations in the EU level are embodied in the Treaty that established the European Community (TEC). Economic considerations are the main focus for regulation of PMCs/PSCs otherwise known as competition law. It was proposed that “There seems to be no need for European regulation from the perspective of protection of IHL and human rights law within the Internal Market,” (Dekker, 2009, p 3). The statement itself is problematic as “internal market” may mean within the EU and involving two or more states as the report continued to highlight that there is need for “regulation of the export of PMCs/PSCs services from the EU Member States to third countries,” (Dekker, 2009, p 3) The report pointed out existing overlap as problem of the EC and EU Common Foreign and Security Policy (CFSP). This overlap was exemplified in the Ecowas case of which the Court interpreted the current Article 47 TEU. It was suggested that “differences between the two pillars apparently makes it impossible to use the first and the second pillar simultaneously as legal basis,” (Dekker, 2009 p 4). Another consideration is the change of TEC into Treaty on the Functioning of the European Union of TFEU once the Treaty of Lisbon comes into effect. Article 47 will become a new Article 40 TEU and seen as more balanced because “implementation of CSFP should respect Union powers laid down in the TFEU […] but TFEU powers should respect CFSP powers,” (National Reports Series 04/09, p 6). Research Design This research will use qualitative case study approach towards pointing out the development of the humanitarian law and any recent issues focusing on Iraq or Sierra Leone and its implications on PMCs/PSCs in the European Union setting. The question topics shall include but not limited to: Specific EU PMCs/PSCs circumstances/actions viewed by the expert as a violation of or conflict with international humanitarian law Challenges on litigating the perceived violations Proposed actions and solutions to address the challenges and conflicts. Case study is a qualitative method of gathering data that can inform professionals and decision-making based on evidence (Baxter and Jack, 2008) allowing the researcher to explore organisations or individuals, relationships, laws, communities and programs involved in PMCs/ PSCs. One advantage of using case study is the possibility for researcher to use as many lenses as possible. This will reveal multiple facets to be understood with regards to PMCs/ PSCs. A case study is used when answering the questions “how” and “why”; where researcher cannot manipulate the behaviour of those involved, in this instance the PMCs, governments and international bodies; when the researcher wants to cover contextual conditions with the premise that it is important to the humanitarian law issue under study; and when boundaries are not clear between phenomenon and context (Baxter and Jack, 2008). Conclusion I have chosen the above topic for research material due to the growing popularity and acceptance of PMCs and PSCs operating within the EU. It has been suggested that privatisation of security will amount to building of fortresses and hiring the most body guards by those who can afford and risking the lives of those who cannot afford paid security round-the-clock. While this may be an extreme, there is a need to establish laws and clear regulations about the operations of PMCs and PSCs especially in armed conflicts between nations as civilians are always involved, unfortunately as victims, and it could be likely that the violating PMC/PSC is not state-hired but private. This research hopes to shed light about legal possibilities of prosecution in a fair manner. Reference: Baxter, Pamela, and Susan Jack. 2008. Qualitative Case Study Methodology: Study Design and Implementation for Novice Researchers. The Qualitative Report 13 (4) 544-559 Cottier, Michael. 2006. Elements for contracting and regulating private security and military companies. International Review of the Red Cross, 88, No. 863, September 2006 Creswell, J. 1998. Research design: Qualitative, quantitative, and mixed methods approaches (2nd ed.). Thousand Oaks, CA: Sage. Dekker, Guido Den. 2009. The Regulatory context of private military and security services at the European Union level. National Reports Series 04/09. PRIV-WAR Report – European Union. Dormann, Knut. 2010. The legal situation of ‘‘unlawful/unprivileged combatants.” International Review of the Red Cross, Vol. 85, No. 849, March 2003, p. 45 Gillard, Emanuela-Chiara. 2006. Business goes to war: private military / security companies and international humanitarian law. International Review of the Red Cross, 88, no. 863. September. Hancock, D. R., & Algozzine, B. (2006). Doing case study research: A practical guide for beginning researchers. New York: Teachers College Press. International Committee of Red Cross. 2004. What is International Humanitarian Law. Accessed November 2010 from http://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf Marie, Renae. 2006. Census Counts 100,000 contractors in Iraq. Washington Post, 5 December 2006. Schreier, Fred and Marina Caparini. 2005. Privatising Security: Law, Practice and Governance of Private Military and Security Companies, Geneva Centre for the Democratic Control of Armed Forces Occasional Paper No. 6, March. Stake, R. E. (1995). The art of case study research. Thousand Oaks, CA: Sage. Swiss Initiative. 2006. Swiss initiative, Expert Workshop of 16–17 January 2006 in Montreux, Summary of the Chair, 11 September 2006, p. 5, available at: http://www.eda.admin.ch/psc Tonkin, Hannah.2009. A Minimum Yardstick for Regulating Private Military and Security Companies. Leiden Journal of International Law 22, 779-799. United States Government Accountability Office. 2006. Rebuilding Iraq: Actions Needed to Improve Use of Private Security Providers, Report to Congressional Committees July 2005, GAO-05-737, p. 8 Read More