The significant increase in the deployment of PMSCs constitutes a challenge not only for states but also international organizations. In this regard, the United Nations Human Rights Council takes a lead in finding a genuine solution to the growing phenomenon of PMSCs. Currently, discussions that address the absent complex international regulation of PMSCs are in progress. However, due to diverging views on the nature of the instrument on which the negotiations are based, as well as differing interpretations of a number of international law issues, the adoption of an instrument that would comprehensively regulate PMSCs still remains out of sight.
I. PSMCs as an International Phenomenon
The involvement of private actors in armed conflicts is usually referred to being old as war itself. These private actors, united by the pursuit of profit, used to be labelled mercenaries in the past. Some 30 years ago, new actors designated as private military and security companies (PMSCs), emerged on the global scene. Their involvement in armed conflicts is often a way for states to avoid deploying their armed forces, whether for logistical, financial or political reasons. However, as a result of poor state control over their actions, these companies have engaged in numerous international crimes. Adding to the gravity of the situation, weak accountability avenues for PMSCs, due to factual or legal obstacles, pose an equally serious challenge to the international community.
This undesirable development has led to a growing interest in issues related to the international regulation of PMSCs. Although initially questions of the international legal framework of PMSCs were accompanied by claims of a legal vacuum in which these companies allegedly operate, these claims are now considered to have been overcome and rejected by international legal scholars. Nevertheless, the international regulation of PMSCs is still considered to be an open topic. It seems therefore appropriate to mention that in 2017, an open-ended intergovernmental working group, with a specific mandate to elaborate the content of an international regulatory framework on the regulation, monitoring and oversight of the activities of private military and security companies, was established. In this context, its purpose is to protect human rights and ensure accountability for crimes related to activities of PMSCs. In fact, from 7th to 10th April 2025, the sixth session of the Working Group took place. In this session, the Working Group’s discussions were based on the revised fourth draft instrument on an international regulatory framework on the regulation, monitoring of and oversight over the activities of private military and security companies.
II. Legal Complexities and the Fourth Draft Instrument
The revised fourth draft instrument is interesting for several reasons. First of all, there is still no consensus within the Working Group itself on whether its efforts will result in an international treaty or just in a soft law (non-binding) instrument. This assumption can be derived from divergent positions on the nature of the instrument, from the language used in the instrument and, finally, from its very title (“instrument”). All these facts suggest that neither the Working Group nor states have found consensus on how they want to address the international regulation of PMSCs. In other words, it is not clear whether states are willing to subordinate their interests to the common goal of international regulation of PMSCs through an international treaty. It would be interesting to assess whether this fact reflects a more general trend of deformalization of international law, characterised by a gradual loss of formalism and a simultaneous increase in soft law, or whether it is just a specific case concerning PMSCs. In this specific instance, the increasing use of soft law concerning PMSCs’ activities seems rather as an alternative to treaty law.
Secondly, in regard to its content, the (fourth draft) instrument‘s preamble not only recalls international conventions relevant to the regulation of PMSCs, namely the (four) Geneva Conventions and the Fourth Hague Convention, but also explicitly mentions the obligation of parties to an armed conflict to respect international humanitarian law (IHL) in all circumstances. This is particularly important, because PMSCs‘ involvement in armed conflicts is often associated with violations of IHL. Indeed, their non-compliance with IHL is a major concern for the Working Group, and is directly associated with its current efforts.
Further, the fourth draft instrument reaffirms that States bear the primary responsibility to prevent international crimes and abuses of human rights, to ensure respect for IHL by PMSCs they contract as well as the obligation to enact any legislation necessary to provide effective penal sanctions for persons committing international crimes. These provisions aim to strengthen and uphold international law by states even when they decide to delegate certain activities to other (private) entities. In fact, these provisions are in line with the Montreux Document, which helped to clarify international legal obligations of states in regard to PMSCs and contributed to setting standards for PMSCs‘ conduct, especially when it comes to human rights compliance. Nevertheless, these provisions are to be interpreted in a context that goes beyond PMSCs themselves and is associated with the actual practice of contracting PMSCs. Indeed, it does not come as a surprise that some states use PMSCs as proxies or cheaper alternatives to armed forces with the objective to lower the threshold of conflict and escape accountability. However, in accordance with the rules on the responsibility of states for internationally wrongful acts, states still cannot absolve themselves of responsibility for acts of private actors, even PMSCs, presuming that they are attributable to them.
III. Implications of Definitions Used
The fourth draft instrument also provides definitions. In this respect, three definitions are particularly interesting, namely the definitions of « Private Military and Security Company (PMSC) », « Prohibited Activities » and « Victim ». The definition of PMSC departs from existing definitions, such as that employed in the Montreux Document, as it includes state-owned or partially state-owned entities among PMSCs. State-owned companies are legal entities whereon state exercises control or ownership. Ownership or control over a company can be manifested, for instance, by the ability to nominate a person to the governing body of the company. As a result, the above definition of PMSC targets situations where the state has direct influence on the actions of PMSCs, which de facto contradicts the idea of transfering activities to another entity. A contradictory argument could be that such a definition better reflects the rise of state-owned military and security companies. Another point of contention regarding the instrument’s definition of PMSC is the absence of a reference to the PMSC‘s financial dimension, which is intrinsically connected to its activities. Fundamentally, the main reason why PMSCs provide services is the possibility for profit. It is therefore regrettable that the PMSC definition omits this important element, as the original draft of a possible PMSC Convention included an element of a « compensatory basis » on which PMSCs provide their services. The wording « compensatory basis » would be appropriate because it reflects the very essence of contracting. That is why the exclusion of the financial implications related to provision of military and/or security services appears to be a major shortcoming of the definition.
The definition of « Prohibited Activities » is also one of importance. The fourth draft instrument defines « Prohibited Activities » as activities that a state cannot outsource to PMSCs under any circumstance. These activities were previously associated with a state’s monopoly on violence and consequently have been carried out exclusively by states. The given definition classifies delegating activities such as conducting or engaging in combat activities, taking prisoners and the interrogation of detainees as prohibited. In the context of PMSCs, the reason for the inclusion of these activities is obviously a concern that they may be used for « different » purposes. Interestingly, compared to the third draft instrument, the current definition introduces the notion of « Prohibited Activities » rather than « State functions ». This change was requested by some states which emphasized that there are still inconsistencies about the meaning of (inherent) state functions and consequently, a more acceptable term „Prohibited Activities“ was introduced.
The fourth draft instrument also introduces the definition of « Victim ». The proposed definition does not depart in its content from existing definitions of « Victim » contained in other human rights instruments, such as the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. However, for the purpose of the fourth draft instrument, harm suffered by the victim has to be the direct or indirect result of acts or omissions in the context of the activities of PMSCs. The definition also presumes that these acts or omissions constitute international crimes. By introducing the definition of « Victim », the fourth draft instrument draws attention to the often neglected position of victims who have been harmed by PMSCs‘ actions. It also implicitly endorses a victim-centred approach, according to which victims have the right to justice, accountability and remedy. Improving the position of victims, ensuring accountability and effective means of remedy are central issues for the Working Group, given that PMSCs still operate with impunity.
In the subsequent paragraphs, the fourth draft instrument outlines obligations of states. These obligations are enumerated in the positive or negative. A negative obligation could be considered the obligation for states not to contract PMSCs to carry out « Prohibited Activities ». Nevertheless, positive obligations, which formulate an expected result consisting in the adoption of domestic legislation, are prevalent. As mentioned above, one of these positive obligations introduces the obligation for states to enact any legislation and/or measures necessary for the regulation and oversight over PMSCs. However, as practical experience with the implementation of the Montreux Document shows, not all states that are signatories of the Montreux Document adopted domestic legislation regulating PMSCs. Once again, this prompts the question of whether these obligations would be upheld were the fourth draft instrument to become ‘only’ soft law. In this context, it is therefore important to consider the possibility that states actually prefer leaving the regulation of PMSCs either unresolved or grounded in soft law. Indeed, state practice and the failure of the former initiative towards a draft Convention seems to suggest that states are comfortable with the current state of affairs and the absenting legally binding international regulation of PMSCs.
On the other hand, it could also be argued that the purpose of the current initiative is to allow states to have greater control over PMSCs. Seen under this lens, the fourth draft instrument could be an opportunity for states to establish an effective registration and licensing system within their domestic law that would allow them to supervise PMSCs‘ activities more closely. To be licensed, PMSCs would have to adopt and implement policies that promote specific aspects related to transparency and compliance with (inter)national law. This approach seems promising because if states granted licences according to certain conditions, preventing breaches of IHL and/or human rights provisions by PMSCs would definitely be more feasible.
IV. Concluding Thoughts
It is positive that current efforts to establish a regulatory framework of PMSCs continue. Although the outcomes of the Working Group’s meeting will not be available any time soon, it can be argued that several issues will likely remain unsettled. First, resolving the question of the nature of the instrument is the primary issue to be dealt with. Other aspects associated with the instrument will also implicitly depend on it. In this regard, direct participation in hostilities remains still an open question. Moreover, given the objections raised against defining « State functions » positively, the way forward seems to negatively define which activities PMSCs should never be allowed to perform in place of the state. Likewise, further issues that will require attention are both connected to crimes committed by PMSCs. On the one hand, accountability of PMSCs for IHL and human rights violations is still a major problem. Accordingly, the success of the current initiative will depend significantly on the extent to which these actors can be held accountable under international law. On the other hand, identifying legal avenues for effective remedy and compensation for victims will continue to pose a substantial difficulty. Besides, one particular aspect will need to be taken into account in the final stages of the instrument’s adoption, namely the rapid technological developments and the possible misuse of advantages they inevitably bring. To keep up with the times, then, the fourth draft instrument will also need to address these developments and ensure their transparent use by PMSCs.
The views and opinions presented in this article belong solely to the author and do not necessarily represent the stance of the International Code of Conduct Association (ICoCA) or another institution.
