Private Security Companies and the Laws of War

Abstract

The use of contractors employed by private security companies (PSCs) has exploded in recent years, outpacing efforts to assess the consequences of increased reliance on PSCs for international humanitarian law (IHL). This matters both for the states that hire these companies and for the employees of PSCs on or near battlefields. This article examines the legal status of PSCs under the existing IHL framework, focusing on activities where PSC employees carry weapons and how the presence of PSCs in asymmetric conflicts increases the challenge of determining what actions are appropriate within the laws of war. In most cases, PSC employees cannot be accorded combatant status under IHL. However, the actions of private contractors may put their protection as civilians under IHL at risk, and this is particularly true in asymmetric conflicts. I argue that changing the status of PSCs on the battlefield under IHL to take into account the tasks they are performing is not the answer. Rather, bearing IHL in mind, states need to rethink the tasks that PSCs conduct on their behalf, even if this means reducing reliance on PSCs or limiting state military activities. Notably, the USA should re-evaluate its reliance on PSCs to conduct tasks in situations where PSC employees are likely to be pulled into hostilities.