The private military company complex in Central and Southern Africa: the problematic application of international humanitarian law.

• Published date: 01 January 2013
• Author: Kincade, Mathew, III
• Date: 01 January 2013

INTRODUCTION

The presence of Private Military Companies ("PMCs") in contemporary warfare represents a remarkable transition from warfare practices prior to the Cold War. (1) Instead of traditional overt and direct opposition between countries or superpowers, PMCs act as "private providers" (2) of physical protection or armed force for their clients. (3) A PMC is a private corporation that specializes in security or armed force. (4) Like any corporation that resides in a particular nation, a PMC must abide by the laws of a particular sovereign. (5) However, given that PMCs often contract with countries that face both internal and external conflicts (potentially involving other nations), the threat of international conflict remains a pressing concern. Since human rights violations are always a concern during international warfare, International Humanitarian Laws ("IHLs") aim to control state armies and ensure basic protections of human rights in armed conflict. (6) There is some debate, however, as to whether or not IHLs apply to PMCs in the same fashion they can at times apply to sovereigns. (7) IHLs do not explicitly refer to PMCs, (8) and most attempts to retroactively fit PMCs into IHL interpretations have been problematic. (9) International legislation is also partially responsible for the difficulties in applying IHLs to PMCs due to the combination of a lack of time, effort, and political motivation for some sovereigns to address the issues, (10) As a result, PMC activities potentially fall into a troublesome gray area with respect to human rights protections in armed conflict.

Despite the lack of a major conflict on the scale of the United States' Middle East conflicts, Africa has been a point of considerable interest and curiosity with respect to PMC involvement. (11) Africa has been considered a potential stage for increasing PMC involvement for a few reasons. First, the conflicts both in and between the various countries of Africa would provide a business opportunity for PMCs. (12) Second, many of the leading PMCs originated from Africa and already possess regional geographic familiarity. (13) Third, some African countries have already encouraged the use of PMCs by allowing the legislature to regulate their activities. (14) These factors contribute to the notion that Africa is particularly susceptible to, if not in some places inviting, PMC activity.

HOW CONTEMPORARY INTERNATIONAL HUMANITARIAN LAWS HAVE ATTEMPTED TO TACKLE THE EXISTENCE OF PMCS AND "MERCENARISM"

There are two major issues fueling this Note's underlying analysis. The first is whether conflicts that usually concern internal affairs of African countries can constitute an "international" matter for IHL jurisdiction. (15) Second, if the first issue is answered in the affirmative, it must be known if and to what extent there is a pressing danger of human rights violations by PMCs in particular. With respect to the first issue, the "international" concern could surface through a domino effect of a nation's allies involving themselves in a conflict or war theater. (16) Alternatively, there will be a need for an international presence to quell the flames of war when internal conflicts spill over the borders of one country and into another. (17) Addressing the second point requires a more lengthy analysis; whether PMCs are more likely to commit human rights violations in armed conflicts than sovereigns requires an analysis on why IHLs are not easily applicable to PMCs. (18)

Critics of PMCs disparagingly label PMCs' philosophies and activities as mercenary conduct (often labeled as "mercenarism" with the implication that the conduct itself is negative or reprehensible). (19) Mercenaries are often portrayed as guns-for-hire in both literature and the media, typically motivated by financial gain rather than by a personal stake in the conflict. (20) Arguably, the activities of a PMC are a form of mercenarism (21) in the sense that a PMC operates in armed conflicts pursuant to contractual obligations and could be outside of the contracting country's absolute influence. Moreover, some of the historically infamous regimes in Africa attained their political and military might through reliance on mercenary activity. (22) Given the negative connotations of mercenary conduct, PMCs may be reluctant to firmly define their activities as acts of mercenarism.

Although mercenarism prior to the Cold War was often regulated or historically insignificant, (23) IHLs have addressed mercenarism in part through the Geneva Convention (however, as will be seen, the depth of its treatment of mercenarism is a matter of debate). (24) In international conflicts, the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts ("Protocol I") states that mercenaries "shall not have the right to be a combatant or a prisoner of war." (25) Protocol I also provides a list of characteristics that govern who is a mercenary under the Geneva Convention (which is non-exhaustive). (26) However, the mercenary definitions possess some troubling limitations when attempting to analyze PMCs. First, the definition applies to any "person" but does not mention how it applies to a group, organization, entity, or corporation. (27) Second, a mercenary must not be a national of a party in the conflict or a resident of territory held by any party in the conflict. (28) Third, the mercenary must not be a member of a party's armed forces in the conflict. (29) The abovementioned criterion provides an easy escape route for PMCs; PMCs can avoid the Geneva Convention's classifications entirely. (30) Not being a "person" or being a "national" for Protocol I purposes are some of the tactics that could allow PMCs to avoid mercenary classifications. It is possible that the Geneva Convention did not take into account the potential privatization of security and warfare in its concept of mercenarism. (31) The possible failure to account for the privatization of the military potentially allows PMCs to evade the Geneva Convention's accountability provisions for committing violations of human rights or being held as a prisoner of war in the same context. (32) Even an inquiry into the non-international (internal) focused Protocol II does not provide any assistance in rectifying this issue. (33) In short, the...