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Politica La Passione Per Le Conoscenze 3000.182 12-07-2013 15:18 Pagina 1 3000.182 Private Military International Institute of Humanitarian Law and Security Companies Private Military and Security Companies have been operating for several years International Institute of Humanitarian Law now in different situations of local or regional insecurity, also in support of International Institute of Humanitarian Law Institut International de Droit Humanitaire Istituto Internazionale di Diritto Umanitario international peacekeeping operations, and have even been directly or indirectly involved in armed conflicts. The involvement of private actors in armed conflict is not at all a new phenomenon. The presence of private contractors on the theatre of hostilities has historically been a fact of life. However, during the last decade the involvement of PMSCs in armed conflicts evolved tremendously in scale and function thus increasing their impact on the humanitarian domain. Private Military The book includes the contributions submitted by international experts, scholars and practitioners to the XXXV Round Table on current issues of International Humanitarian Law. They tackle a number of crucial questions and Security Companies concerning International Humanitarian Law and Private Military and Security Companies, inter alia, the status, rights and obligations of PMSCs, their clients and employees, and the regime of responsibility under International Law. The International Institute of Humanitarian Law is an independent, non-profit humanitarian organization founded in 1970. Its headquarters are situated in Villa Ormond, Sanremo (Italy). Its main objective is the promotion and dissemination of International Humanitarian Law, human rights, refugee law and migration law. Thanks to its longstanding experience and its internationally acknowledged academic standards, the International Institute of Humanitarian Law is considered to be a centre AND SECURITY COMPANIES MILITARY PRIVATE of excellence and has developed close co-operation with the most important international organizations. STUDI FrancoAngeli Politica La passione per le conoscenze € 25,00 (u) FrancoAngeli International Institute of Humanitarian Law Institut International de Droit Humanitaire Istituto Internazionale di Diritto Umanitario Private Military and Security Companies 35th Round Table on Current Issues of International Humanitarian Law (Sanremo, 6th-8th September 2012) Editor Benoît D’Aboville Associated Editor Gian Luca Beruto FrancoAngeli Ambassador Benoît D’Aboville has served in various diplomatic assignments both in Paris and abroad including as French Permanent Representative to NATO. He has also been Senior Auditor at the French Court of Audit. He is currently professor at Sciences-Po/PSIA and vice-chairman of the board of the Fondation d’Etudes Stratégiques in Paris. Mr. Gian Luca Beruto has a degree in International Political Science and is currently Assistant to the Secretary-General of the International Institute of Humanitarian Law. In 2005 and 2006, he participated in a United Nations Peacekeeping mission in the Democratic Republic of Congo (MONUC) as part of the UN Programme for Disarmament. The International Institute of Humanitarian Law would like to thank Mrs Shirley Morren, librarian of the Institute, and Ms Margherita D’Ascanio, intern at the Institute, who were both involved in the painstaking task of proof reading. Copyright © 2013 by International Institute of Humanitarian Law Stampa: Tipomonza, via Merano 18, Milano. Table of Contents Preface Fausto Pocar pag. 9 Opening session Introductory remarks Fausto Pocar » 13 Welcome address Giovanni Berrino » 17 Keynote address Christine Beerli » 19 Statement Gianluigi Magri » 25 Statement Gianni Ghisi » 30 Statement Gary Motsek » 36 Statement Gregory Starr » 39 I. Status and Interrelation of Major Standard Setting Initiatives The Montreux Document Philip Spoerri » 45 5 The International Code of Conduct and its Oversight Mechanism Anne-Marie Buzatu pag. 49 The UN Draft Convention Faiza Patel » 52 II. Experiences with National Implementation South Africa Abdul Samad Minty » 61 France Monique Liebert – Champagne » 67 Venezuela Corina Helena Cortés Oliveros » 72 Switzerland Marc Schinzel » 78 III. Experiences of Industry Implementation Industry Standards: ANSI/ISO Standard Marc Siegel » 87 Maritime Security Standards Ian Simpson » 93 IV. Key Legal Questions arising in Armed Conflict Status of Private Military Security Companies under International Humanitarian Law Nils Melzer » 99 Detention Activities by PMSCs Katherine Gallagher » 102 International, Corporate and Individual Responsibility for the Conduct of Private Military and Security Companies Andrea Carcano » 108 6 V. The Challenges of Specific Contexts Regulating and Monitoring Private Military and Security Companies in United Nations Peacekeeping Operations Stephen Mathias pag. 121 Regulating and Monitoring PMSCs in NATO Operations Andres B. Munoz-Mosquera and Nikoleta P. Chalanouli » 128 Regulating and Monitoring the Privatization of Maritime Security Natalino Ronzitti » 147 VI. Improving Compliance with International Humanitarian Law IHL Training for and by PMSCs Marc Linning » 155 Industry Needs and Strategies for IHL Training Sylvia White » 159 VII. Way Forward Rights and Accountability in Development Tricia Feeney » 163 Private Military Security Companies Regulation: the Way Forward Alan Bryden » 172 Concluding remarks Fausto Pocar » 177 Concluding remarks Philip Spoerri » 180 Concluding remarks Valentin Zellweger » 183 7 Acronyms pag. 187 Acknowledgements » 191 8 Preface One of the traditional assumptions of International Humanitarian Law is that conflicts are fought between States or, at most, between States and organized armed groups. Nowadays, the persistent and growing employment, on a large scale, of Private Military Security Companies (PMSCs) in situations of armed conflict seems to put strain on the ordinary structure and conception of International Humanitarian Law. The need for a strict and clearly established legal framework accepted by States and PMSCs; the importance of effective accountability mechanisms for the conduct of private contractors; the ever blurred distinction between civilians and combatants and the uncertainty surrounding the legal status and obligations of PMSCs, are only some of the issues arising from the increasing use of private contractors in different international scenarios. The necessity to give further contributions to the international debate on the legal and normative development of private security regulatory frameworks, without forgetting the importance of political and technical considerations, led the International Institute of Humanitarian Law, with the collaboration of the International Committee of the Red Cross, to focus the works of the XXXV Round Table on this important and challenging topic. As is tradition, the Sanremo Round Table gathered together distinguished academics, legal experts, government officials and military commanders for an in depth discussion on whether and how International Humanitarian Law rules applied to PMSCs. The Sanremo Institute wishes to warmly thank all those who contributed to the success of this event. I am confident that this publication – which reproduces most of the interventions at the Round Table – will be a useful reference work for all those interested in both theory and practice of International Humanitarian Law and will offer a valuable contribution to furthering academic research on this issue, highlighting the importance of the promotion, dissemination and enforcement of this fundamental branch of International Law. Fausto Pocar President of the International Institute of Humanitarian Law 9 Opening session Introductory remarks Fausto Pocar President, International Institute of Humanitarian Law, Sanremo Over the past years, the phenomenon of outsourcing military and security services to private entities has experienced a spectacular growth. Today, many States, including the most powerful democratic States, are increasingly relying on private contractors to manage military and security services. While the emergence of private military and security companies (PMSCs) stems from the transformations following the end of the Cold War, the current multiplication of such private entities seems exponential and thus deserves the utmost consideration. Clearly, it would be going too far to consider PMSCs problematic as such. Indeed, for the largest part, this sector is well regulated under domestic law as any other supply of services. However, from an International Law, in particular from an IHL, perspective, various problems arise when private contractors are hired to replace members of the armed forces in situations of armed conflicts, military occupation, peace-keeping, peace-enforcement and peace-building operations. Similarly, the fact that PMSCs have been and continue to be used in present conflict-scenarios by non-State actors raises the question of whether the current legal framework is adequate or further regulation is needed to ensure full compliance with IHL. PMSCs offer a wide range of services in armed conflicts and peace-time situations. These services, among other things, may include: guards (armed and non-armed), protection of persons and objects or buildings, patrols, maintenance and operation of weapons systems, clearance of minefields, transport of valuable and commercial goods, prisoner detention and interrogation, intelligence services, risk assessment, military research analysis, advice
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