The recent use of private military companies (PMCS) in war zones
- What are PMCs ? A definition and an overview of where they have been used
- The rise of private military companies and problems of misuse
- The judicial regulation of PMCs
The use of mercenaries is not a new phenomenon. Such combatants exist since antiquity, selling their force to princes and states, and so are sometimes called the world’s second oldest profession. In the Chapter XII of its famous book “The Prince”, Machiavelli already discuss the advantages and disadvantages of mercenary forces:” Mercenaries […] are useless and dangerous; and if one holds his state based on these arms, he will stand neither firm nor safe; for they are disunited, ambitious and without discipline, unfaithful (…); for in peace one is robbed by them, and in war by the enemy.
The fact is, they have no other attraction or reason for keeping the field than a trifle of stipend, which is not sufficient to make them willing to die for you”. The last decades have seen a rise in the use of such military forces by states. Indeed, states frequently entrust missions to a new kind of mercenaries, the so-called “private military companies” in their usual reserved domains like defense, security, prisons or customs. Of course we will only talk about the privatization of war and war related areas here. The privatization of such areas is raising some issues we will try to deal with in this presentation. For instance, why states have recourse to these corporate warriors? Does only the law of supply and demand regulate these activities like any other economic sector? After a more precise definition of what private military companies are, we will look at the reasons of the recent rise of PMCs and the kind of abuses they may create, and finally we will tackle the problem of the regulation of private military companies by international law.
[...] In South Africa, the Regulation of Foreign Military Assistance Act of September 1998 prohibits South African companies and citizens to participate in armed conflict, except in cases mentioned by the Constitution. It settles a system of licensing, as the British Green Paper of 2002 is also trying to do. This system is yet limited. Indeed, it can applied to charity or humanitarian organisations. Secondly it can be bypassed, like the controversial South African Executive Outcomes which moved its headquarters abroad. [...]
[...] One example is the USA Patriot Act amendment on Special Maritime and Territorial Jurisdiction of 2001 condemns crimes committed by or against any US national. For instance, Passaro was found guilty of having assaulted an Iraqi prisoner who died of his injuries. But such tools are too vague to bring a successful prosecution. Besides, most of them only apply to the PMCs hired by the Department of Defence. Finally, these difficulties to enforce the law when the crimes are committed abroad is furthermore delicate than it is difficult to find witnesses and evidence in the heart of war zones. [...]
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