Promoting compliance of private security and military companies with international humanitarian law

International Review of the Red Cross

Volumn 88, Issue 863, 2006, Pages 613-636

  Perrin, Benjamin ^a  

^a MCGILL UNIVERSITY   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85008490077     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383106000713     Document Type: Article

References (135)

1. Private security companies are companies that provide defensive armed protection for premises or people, capable of defending against guerrilla forces or serving as personal bodyguards. By contrast, Non-lethal services providers (NSPs) provide logistical support such as de-mining, laundry and food services. Doug Brooks, “Protecting people: The PMC potential: Comments and suggestions for the UK Green Paper on regulating private military services”, 25 July 2002, pp. 2–3.
2. Private military companies include both “active PMCs willing to carry weapons into combat, and passive PMCs that focus on training and organizational issues”. “Protecting people: The PMC potential: Comments and suggestions for the UK Green Paper on regulating private military services”.
3. The industry is expected to grow from US$55.6 billion in 1990 to $210 billion by 2010. Paul Keilthy, “Private security firms in war zones worry NGOs”, 11 August 2004, online at AlertNet, (visited 23 October 2006).
4. “[T]he personnel of private military and security companies must respect international humanitarian law and can be prosecuted if they commit war crimes.” See “The ICRC to expand contacts with private military and security companies”, International Committee of the Red Cross, 4 August 2004, online at (visited 23 October 2006).
5. See, e.g., in Afghanistan, United States v. Passaro, No. 5:04-CR-211–1, 2004 WL 1431014 (E.D.N.C.) (Central Intelligence Agency contractor charged with two counts of assault with a dangerous weapon with intent to do bodily harm, and two counts of assault resulting in serious bodily injury against a detainee)
6. Shaista Shameem, “Report of the Special Rapporteur: Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination”, Commission on Human Rights, 61st Sess., UN Doc. E/CN.4/2005/14, 8 December 2004, p. 14 (three United States contractors found guilty by an Afghan court in September 2004 for torture, running a private prison and illegal detention)
7. in Iraq, Major General Taguba, Article 15–6 Investigation of the 800th Military Police Brigade, 2004, online at (Taguba Report, implicating private military and security company interrogators and translators in the abuse of Iraqi prisoners at the Abu Ghraib detention facility) (visited 23 October 2006)
8. but see HC 577 Private Military Companies: Options for Regulation 2001–02, Foreign and Commonwealth Office (United Kingdom), The Stationary Office, London, 12 February 2002, pp. 17, 19 (hereinafter UK, Options for Regulation) (private military and security companies often respect international humanitarian law and human rights better than national armies or peacekeeping forces).
9. Elke Krahmann, “The privatization of security governance: Developments, problems, solutions”, 1/2003, Arbeitspapiere zur internationalen Politik, p. 6, online at, http://www.politik.uni-koeln.de/jaeger/ downloads/aipa0103.pdf. (visited 23 October 2006).
10. Carlos Ortiz, “Regulating private military companies: States and the expanding business of commercial security provision”, in Kees van der Pijl et al. (eds.), Global Regulation: Managing Crises after the Imperial Turn, Palgrave Macmillan, New York, 2004, p. 211.
11. See generally Jacob S. Ziegel et al., Cases and Materials on Partnerships and Canadian Business Corporations, 3rd edn, Vol. I, Carswell, Toronto, 1994, pp. 248–51.
12. Ortiz, above note 7, p. 218.
13. Brooks, above note 1, p. 5.
14. South Africa is considering stricter legislation that could heighten these concerns: see Prohibition on Mercenary Activities and Prohibition and Regulation of Certain Activities in an Area of Armed Conflict Bill, 2005 (South Africa) (on file with author).
15. “Private military companies: Independent or regulated”, Sandline International, 28 March 1998, p. 3, online at (visited 24 October 2006).
16. Henry Cummins, “Perception and profit: Understanding commercial military and security service provision”, Discussion Paper, Centre for Studies in Security and Diplomacy: University of Birmingham, 14 June 2002, p. 6
17. see also UK, Options for Regulation, above note 5, p. 21.
18. See generally, Ortiz, above note 7, pp. 217–218.
19. Ellen L. Frye, “Private military firms in the new world order: How redefining “mercenary” can tame the “dogs of war””, Fordham Law Review, Vol. 73 (2005), p. 2647.
20. Ortiz, above note 7, p. 213.
21. Fordham Law Review.
22. UK, Options for Regulation, above note 5, p. 25.
23. “We don't operate in the shadows”, Telegraph (United Kingdom), Issue 1632, 3 December 1999, online at (visited 24 October 2006).
24. See UN Global Compact, Voluntary Principles on Security and Human Rights, posted 24 June 1992, online at (visited 24 October 2006).
25. Harold Hongju Koh, “Transnational legal process”, Nebraska Law Review, Vol. 75 (1996), p. 199
26. but see Markus Burgstaller, Theories of Compliance with International Law, Martinus Nijhoff, Leiden, 2005, p. 157–65.
27. See Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949 (First Geneva Convention), 75 UNTS 973, Art. 1, online at (visited 24 October 2006).
28. Ortiz, above note 7, p. 215
29. Regulation of Foreign Military Assistance Act (South Africa), No. 15 of 1998.
30. UK, Options for Regulation, above note 5, p. 6.
31. See, e.g., Contractor Accountability Act of 2004 (United States), HR 4387, 18 May 2004
32. MEJA Clarification Act of 2004 (United States), 108th Congress, 2nd Sess., HR 4390, 19 May 2004
33. Stabilization and Reconstruction Civilian Management Act of 2005 (United States), 109th Congress, 1st Sess., S 209, 31 January 2005
34. International Security Enhancement Act of 2005 (United States), 109th Congress, 1st Sess., HR 1361, 17 March 2005
35. Transparency and Accountability in Security Contracting Act (United States), 109th Congress, 1st Sess., 26 April 2005
36. Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, S 2400, § 864, 865, 1021.
37. See Cummins, above note 12, p. 9.
38. Sonni Efron, “Troops for hire”, Edmonton Journal, 2 August 2005, p. E11 (Proquest)
39. see also Richard Norton-Taylor, “Army fears loss of top troops to private firms”, Guardian (United Kingdom), 8 August 2005, online at Corpwatch, (visited 24 October 2006).
40. Tony Capaccio, “U.S. military tightens rules for contractors in combat zones”, Bloomberg, 27 October 2005, online at IPOA, (visited 24 October 2006).
41. See, e.g., A Proclamation Prohibiting His Majesties Subjects to Enter into the Service of Foreign Princes and Lands, Sovereign, 1685–1688: James II, England and Wales
42. reproduced in Early English Books Online: 1641–1700, UMI, Ann Arbor, Mich., 1999–2005, p. 962:5
43. Penal Code (Sweden), 1999:36, c. 18: s. 4, online at Buffalo Criminal Law Center, (visited 24 October 2006)
44. Crimes (Foreign Incursions and Recruitment) Act 1978 (Australia), Act No. 13 of 1978 as amended to Act No. 104 of 2004, s. 6(1)
45. Foreign Enlistment Act (Canada), R.S.C. 1985, c. F-28
46. Shameem, above note 5, p. 7 (Namibian law).
47. Claude Voillat, “Private military companies: A word of caution”, online at Humanitarian Practice Network, (visited 24 October 2006); see also “Memorandum on the object of the Prohibition of Mercenary Activities and Prohibition and Regulation of Certain Activities in an Area of Armed Conflict Bill, 2005” (South Africa) (on file with author).
48. See, e.g., CACI, “Employees in Iraq”, 4 November 2004, online at (visited 24 October 2006).
49. Shameem, above note 5, p. 12.
50. Private Military Firms: Working Group on Private Military Companies, Geneva Centre for the Democratic Control of Armed Forces (DCAF), Geneva, 2004, p. 12.
51. “Army Chief notes “problematic” potential of armed contractors on the battlefield”, Defense Daily International, Vol. 6, Issue 35, 9 September 2005, p. 1 (Proquest).
52. In September 2004, three American private military company personnel were sentenced to 10 years' imprisonment by an Afghan court for torture, running a private prison and illegal detention: Shameem, above note 5, p. 14.
53. See, e.g., “Administrative & civil service reform”, World Bank Group, online at (visited 24 October 2006).
54. Alex Mintz and Michael D. Ward, “Electoral cycles and defence spending in Israel: An analysis of quarterly data”, in Andrew L. Ross (ed.), The Political Economy of Defence: Issues and Perspectives, Greenwood Press, New York, 1991, pp. 135–7, 150–1.
55. Aita Ivarato v. Peti Lafanama and Electoral Commission of Papua New Guinea [1998] PGSC 27 (28 August, 1998) (Supreme Court of Papua New Guinea) (PacLII).
56. “Coalition Provisional Authority Memorandum Number 17: Registration Requirements for Private Security Companies (PSC)” (Iraq), CPA/MEM/26 June 2004/17, 26 June 2004, s. 2(5).
57. “Coalition Provisional Authority Memorandum Number 17: Registration Requirements for Private Security Companies (PSC)”, ss. 3(3), 4(2)(b).
58. “Coalition Provisional Authority Memorandum Number 17: Registration Requirements for Private Security Companies (PSC)”, s. 4(2)(b).
59. Andrew Gilligan, “Inside Lt. Col. Spicer's new model army”, Telegraph (United Kingdom), Issue 1276, 22 November 1998, online at (visited 24 October 2006).
60. For an example of political distancing generally, see Kevin A. O'Brien, “Leash the dogs of war”, Financial Times, 20 February 2002, online at Global Policy Forum, (United States hiring DynCorp to conduct the Kosovo monitoring force) (visited 24 October 2006).
61. Ruth Jamieson and Kieran McEvoy, “State crime by proxy and juridical othering”, British Journal of Criminology, Vol. 45 (2005), p. 504.
62. British Journal of Criminology.
63. P. W. Singer, “Outsourcing war”, Foreign Affairs, Vol. 84, Issue 2 (2005), p. 119 (Proquest).
64. Jeffrey Ian Ross, “The future of controlling state crime: Where do we go from here?”, in Jeffrey Ian Ross (ed.), Controlling State Crime, 2nd edn, Transaction Publishers, London, 2000, p. 423
65. see also “Media complicity in a “fine little war””, in Christina Jacqueline Johns and P. Ward Johnson (eds.), State Crime, the Media, and the Invasion of Panama, Praeger, Westport, Connecticut, 1994, p. 63
66. Shameem, above note 5, p. 14.
67. Sandline, above note 11, p. 2.
68. Deborah D. Avant, The Market for Force: The Consequences of Privatizing Security, Cambridge University Press, Cambridge, 2005, p. 228.
69. The Market for Force: The Consequences of Privatizing Security, p. 224.
70. Ashif Mawji, “Compliant or competitive: How about both?”, Contract Management, Vol. 45, Issue 8 (2005), p. 38, figure 1 (Proquest).
71. For best practices in contract administration, see Gregory A. Garrett et al., “Managing contracts in turbulent times: The contract management maturity model”, Contract Management, Vol. 45, Issue 9 (2005), p. 48 (Proquest).
72. Avant, above note 51, p. 220.
73. Anders Gustafsson and Michael D. Johnson, Competing in a Service Economy: How to Create a Competitive Advantage through Service Development and Innovation, Jossey-Bass, San Francisco, 2003, p. 50.
74. Major-General George R. Fay, AR 15–6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade (Fay Report), August 2004, p. 50, online at United States Department of Defense, (CACI was the firm hired to provide contractor interrogators at Abu Ghraib) (visited 24 October 2006).
75. Rebecca Bratspies, ““Organs of society”: A plea for human rights accountability for transnational enterprises and other business entities”, Michigan State Journal of International Law, Vol. 13 (2005), pp. 25–27.
76. International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted at 53rd Sess., November 2001, Arts. 5, 8, 9, online at ILC, http://www.un.org/law/ilc/. (visited 24 October 2006).
77. See also ICRC, above note 4; and see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986 (for “effective control” test).
78. US Department of Defense, Instruction No. 3020.41: Contractor Personnel Authorized to Accompany the U.S. Armed Forces, 3 October 2005, s. 6.1.5 (emphasis added).
79. Sandline International, above note 11, p. 3.
80. Deborah Avant, “Market allocation of force and the prospects for global security professionals”, Conference “Beyond Terror: A New Security Agenda”, 3–4 June 2005, online at Watson Institute for International Studies, (emphasis added).
81. Brooks, above note 1, p. 4.
82. Fay Report, above note 57, p. 48.
83. Avant, above note 51, p. 220.
84. Alien Tort Claims Act (United States), 28 USC § 1350.
85. Gregory G. A. Tzeutschler, “Corporate violator: The alien tort liability of transnational corporations for human rights abuses abroad”, Columbia Human Rights Law Review, Vol. 30 (1999), pp. 411–12.
86. Tina Garmon, “Domesticating international corporate responsibility: Holding private military firms accountable under the Alien Tort Claims Act”, Tulane Journal of International and Comparative Law, Vol. 11 (2003), p. 353.
87. See Business and International Crimes: Assessing the Liability of Business Entities for Grave Violations of International Law, International Peace Academy and Fafo, Allkopi Sarpsborg, Norway, 2002, pp. 14–15.
88. Diane Vaughan, Controlling Unlawful Organizational Behavior: Social Structure and Corporate Misconduct, University of Chicago Press, Chicago, 1983, p. 62.
89. Brooks, above note 1, p. 4.
90. Sandline International, above note 11, p. 3.
91. Cummins, above note 12, p. 5.
92. Brooks, above note 1, p. 4.
93. IPOA Code of Conduct, IPOA, 31 March 2005, online at (visited 24 October 2006).
94. IPOA, “Committees”, online at (visited 24 October 2006).
95. Avant, above note 51, p. 221
96. referring to Jeffrey Herbst, “The regulation of private security firms”, in Greg Mills and John Stremlau (eds.), The Privatization of Security in Africa, SAIIA Press, Johannesburg, 1999, pp. 122–5.
97. See Malcolm McDonald and Ian Dunbar, Market Segmentation, Macmillan Business, London, 1995, pp. 15–16.
98. This would be a negative form of “benefit segmentation”, whereby consumers select a given service/ product on the basis of the perceived benefits that it confers on them. See J. Paul Peter and Jerry C. Olson, Consumer Behavior and Marketing Strategy, 7th edn, McGraw-Hill Irwin, Boston, 2005, pp. 383–4.
99. Avant, above note 51, p. 227.
100. Consumer Behavior and Marketing Strategy, pp. 226–7 (emphasis added).
101. James Boxell, “Competition hits security groups in Iraq”, Financial Times (United Kingdom), 5 November 2005, p. 16.
102. Cummins, above note 12, p. 8.
103. Arlo Kristjan O. Brady, The Sustainability Effect: Rethinking Corporate Reputation in the 21st Century, Palgrave Macmillan, New York, 2005, pp. 64–65.
104. See, e.g., Avant, above note 51, p. 221.
105. See Kevin T. Jackson, Building Reputational Capital: Strategies for Integrity and Fair Play that Improve the Bottom Line, Oxford University Press, Oxford, 2004, pp. 178–80
106. Joe Marconi, Reputation Marketing: Building and Sustaining Your Organization's Greatest Asset, McGraw-Hill, Chicago, 2002, pp. 13–19.
107. “Still, Titan does not seem to have been cut out of the U.S. DoD procurement loop”. David Isenberg, “A Fistful of Contractors: The Case for a Pragmatic Assessment of Private Military Companies in Iraq”, British American Security Information Council, Research Report 2004.4, September 2004, p. 52, online at (visited 24 October, 2006).
108. Avant, above note 51, p. 222.
109. British American Security Information Council, Research Report, p. 221.
110. Frye, above note 14, p. 2607.
111. British American Security Information Council, Research Report.
112. See Fafo, above note 70, pp. 13–15.
113. Indeed, Al Rawi v. Titan Corporation, which is a class action claim in the US District Court for the Southern District of California, appears to be the first civil claim alleging violations of international humanitarian law by a private military and security company – in this case concerning the Abu Ghraib scandal. Al Rawi et al. v. Titan Corporation et al., Complaint of Plaintiffs, 9 June 2004 (U.S. Dist. Ct. – S. CA) (Findlaw).
114. Bratspies, above note 59, p. 28; but see Garmon, above note 69.
115. The Roots of Behaviour in War: Understanding and Preventing IHL Violations, ICRC, Geneva, 2004.
116. ICRC, p. 15.
117. Remarks of Ted Itani, Canadian Red Cross Conference on Customary International Humanitarian Law, McGill University, Montreal, 1 October 2005.
118. see Taguba Report, above note 5, and CACI, above note 30.
119. ICRC, above note 103, pp. 15–16.
120. Simon Gächter and Armin Falk, “Reputation and reciprocity: Consequence for labour relations”, Scandinavian Journal of Economics, Vol. 104, Issue 1 (2002), pp. 1, 15.
121. Avant, above note 51, p. 223 (emphasis added); the applicability of this argument across local and expatriate personnel remains to be seen.
122. Passaro, above note 5; Military Extraterritorial Jurisdiction Act of 2000 (United States), 106th Congress, Public Law 106–523, 22 November 2000
123. see also MEJA Clarification Act of 2004 (United States), 108th Congress, 2nd Sess., HR 4390, 19 May 2004.
124. Human Rights Watch, “QandA: Private military contractors and the law: States have an obligation to prosecute perpetrators of war crimes in their courts”, 21 October 2004, online at Global Policy Forum, (visited 24 October 2006).
125. Notably, with reference to Iraq: “Many of the contractors working in Iraq worked for companies that had contracts not with the Defense Department, but with the Department of the Interior” (“QandA: Private military contractors and the law: States have an obligation to prosecute perpetrators of war crimes in their courts”.).
126. IPOA Code of Conduct, above note 79.
127. Avant, above note 51, p. 220.
128. Many of these measures exist under national criminal law for corporate wrongdoing in Canada. See, e.g., Criminal Code (Canada), R.S.C. 1985, c. C-46, s. 732.1(3.1).
129. Peter Almond, “UK: War's fertile grounds for soldiers of fortune”, Sunday Times (United Kingdom), 30 October 2005, online at Corpwatch, (visited 24 October 2006)
130. “Andy Bearpark”, Intelligence Online No. 511, 9 November 2005, online at (visited 24 October 2006).
131. “Andy Bearpark”.
132. Isenberg, above note 94, p. 66.
133. Cummins, above note 12, p. 2.
134. Voluntary Principles, above note 19.
135. Karen Ballentine, “Consolidation of the GC policy dialogue on the role of the private sector in zones of conflict: Identifying public policy options to promote conflict-sensitive business practices”, 7–8 October 2004, p. 8, online at United Nations, (visited 24 October 2006).