A Research On Private Military And Security Companies In International Law

Mercenaries, as a rather old vocation, have accompanied wars and armed conflicts for most period of huamn hisotry. When nation-states emerged and spread, mercenaries slowly faded away and then came back in 1960s as the de-colonisation process began. The international society explicitly forbade recruiting, using, financing and training mercenaries after decades of hard work, but mercenaries did not disappear once and for all. On the contrary, it evolved as the times changed. Individual mercenary or loose group of mercenaries were replaced by well-organized private military and security companies (PMSCs) with advanced structure. Though appeared in 1940s, it was not until the Afghanistan war and the Iraqi war in the beginning of 21st century have these companies attracted great attention of the international society. PMSCs are violating the international law, eroding the states’ sovereignty, impacting the international order and enjoying de facto immunity. All calls for the international society to take PMSCs seriously and put strict regulation on it. China, with a unique condition home and abroad, should have thorough and profound knowledge of PMSCs and get prepared.This dissertation consists of eight parts.Introduction illustrates the necessity to research PMSCs and assesses research status home and abroad. Innovation points are also listed.Chapter One surveys mercenaries and divides three periods according to historical developments:from ancient Greece to 12th century, from 12th century to 17th century and from 17th century until now. International law on mercenaries are processed as the general international law and regional international law, with the former including relevant resolutions of the General Assembly and Security Council of the Untied Nations, the Additional Protocol I to Geneva Conventions and the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, and the latter referring to OAU Convention for the Elimination of Mercenaries in Africa. Chapter Two introduces the terminology, causes and overview of PMSCs, claiming it is not necessary to seperate private security companies from private military companies and should use PMSCs to describe these companies. The rising of PMSCs could be attributed to international and domestic changes, evolution of nature of war and realistic politics, and for its advanced organization, cheap and ample human resources, various and numerous clients, PMSCs are here to stay.Chapter Three analyses domestic law relevant to PMSCs, focusing on South Africa, the United States and the United Kingdom. Currently there is no domestic law specifically made to regulate PMSCs and its personnel, and only sporadic principles and rules are available, especially those on mercenaries. Theoretically, regulating PMSCs by domestic law might be more effective than by international law, but due to the imperfections of domestic law itself and lack of will of states, to regulate PMSCs via domestic law is not promising now.Chapter Four researches the nature of PMSCs on international law, i.e., whether PMSCs and their personnel are mercenaries or civilians or combatants, holding that in many cases, PMSC personnel are not mercenaries of international law and whether they are civilians should be decided case by case and it is not proper to make general assertations, for example, as ICRC did, to tag them as civilians.Chapter Five studies practical issues of PMSCs on international law, including the responsibilities of PMSCs and their personnel, the possibility of PMSCs to take the United Nations peacekeeping operations and introductions and comments on draft convention and soft law on PMSCs. It depends on the relationship between PMSCs and states to contribute PMSCs’ activities and the corresponding responsibilites. The United Nations should not use PMSCs in its peacekeeping missions and international efforts to regulate PMSCs should bring about an international convention on PMSCs in the end.Chapter Six discusses PMSCs and China, holding that Biaoju, which featured with armed escort service from Ming Dynasty till early 20th century, was one of the embryos of PMSCs. China is facing increasing overseas threats and for the legal and political factors, there would be no Chinese PMSCs and it is also unlikely to use PMSCs from other countries. The more feasible and realistic way is to rely on Chinese government and army to solve the security issues but anyway, it is urgent for China to pay close attention to PMSCs and consider how to cope with it, especially on the attemptions of PMSCs to develop Chinese clients.Conclusion comments briefly that compared with mercenaries, PMSCs pose a much larger threat to states, the international society and individuals, and lack of will for states and lack of consensus for the international society could only provide PMSCs with chances in chaos to reinforce its interests and get developed constantly, creating a more difficult legal environment in which regulation of PMSCs are expected. Given total ban on PMSCs is not realistic, it is necessary to accelerate the work of the United Nations Working Group on Mercenaries for an international convention on PMSCs to come as soon as possible, and to improve domestic regulation simultaneously.