Private Military and Security Companies or Mercenaries? Bringing Law Back Into the Discussion

In late May 2017, Erik Prince, former Navy SEAL and founder of the private security firm Blackwater, sparked an intense debate when he laid down his proposed plan to restructure the war in Afghanistan by increasing the reliance on private contractors. Critics of his plan feared unaccountable mercenaries reaping benefits of the long-going conflict. Proponents argued that private contractors would be a cheaper alternative and could deliver better results. Trump recently decided to focus on a troop increase instead of the private sector solution. While Prince’s plan will disappear in the archives of the White House – for now – the question of how to deal with private military and security companies remains.

The privatization of security is a complex issue. Some believe that it threatens the monopoly over the use of force and state sovereignty. But to understand this complex industry in general and Prince’s plan in particular, it is essential to question whether private contractors actually qualify as “mercenaries” and whether they are unaccountable, as many claim. It is time to bring the law back into the debate and stop throwing around buzzwords without understanding their legal basis.

There were two parts of Prince’s plan involving private contractors. On the one hand, there was his proposal to have about 5,000 private contractors work as trainers and mentors, embedded with the Afghan army. On the other hand, there were reports about a private air force of about 90 planes.

In the media outcry following Prince’s proposal the private contractors were predominantly labelled as mercenaries. Mercenaries are defined in Art. 47 of the Additional Protocol I (AP I) to the Geneva Conventions. The same definition is also relied on in Art. 1 of the UN Mercenary Convention. To be considered mercenaries, contractors would, among other actions, need to take direct part in hostilities, be motivated essentially by the desire for private gain and be neither a national of a party to the conflict nor a member of the armed forces of this party.

According to Prince’s plan, the contractors working as trainers and mentors should have been embedded with the Afghan military. It is complicated to envision how this would work in practice. The contractors could either enlist with the Afghan armed forces for the duration of the assignment (this was done before in Papua New Guinea) or be declared de facto members of the armed forces. A similar solution might have been sought for the members of the private air force.

In either case the contractors would not fall under the definition of mercenaries, even leaving aside the difficult questions of how to embed them into the Afghan military. Generally, private military and security contractors rarely fall under the narrow mercenary definition because of the definition’s focus on the intent of the contractors. The contractors’ scope of work is simply too broad and their motivations too diverse. Continue reading

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Read On! ‘Human Security and Human Rights under International Law: The Protections Offered to Persons Confronting Structural Vulnerability’

I am thrilled to post for the first time in IntLawGrrls and to share the publication of my book Human Security and Human Rights under International Law: The Protections Offered to Persons Confronting Structural Vulnerability (Hart Publishing, 2016).

This book considers the potential of human security as a protective tool within the international law of human rights. Indeed, it seems surprising given the centrality of human security to the human experience, that its connection with human rights had not yet been explored in a truly systematic way. The book attempts to address that gap in the literature and sustains that the human rights of persons, particularly those facing structural vulnerability, can be addressed more adequately if studied through the complementary lens of human security and not under human rights law alone. It takes both a legal and interdisciplinary approach, recognizing that human security and its relationship with human rights cuts across disciplinary boundaries.

Human security with its axis of freedom from fear, from want and from indignity, can more integrally encompass the inter-connected risks faced by individuals and groups in vulnerable conditions. At the same time, human rights law provides the normative legal grounding usually lacking in human security. International human rights norms, individualistic in nature and firstly enacted more than sixty years ago, present limits which translate into lack of protection for people globally. As a result, the collective and contextual conditions undergone by persons can be better met through the broader and more recent notion of human security, which emphasizes ‘critical (severe) and pervasive (widespread) threats’, and accentuates socioeconomic vulnerabilities as authentic security concerns. Indeed, as signaled by Sadako Ogata, human security is ‘the emerging paradigm for understanding global vulnerabilities’.

The analysis follows a two-part approach. Firstly, it evaluates convergences between human security and all human rights – civil, political, economic, social and cultural –and constructs a general framework for thought and action, the ‘human security – human rights synergy’. Secondly, it goes on to explore the practical application of this framework in the law and case-law of UN, European, Inter-American and African human rights bodies in the thematic cores of 1) violence against women and girls (VAW); 2) undocumented migrants and other non-citizens such as asylum-seekers and refugees; converging in 3) a particular examination of the conditions of female undocumented migrants. In the last chapter, the book systematizes this evidence to reveal and propose added values of human security to human rights law; and inversely, it indicates how human rights standards/indicators can deliver a needed more precise, normatively grounded and operational conception of human security.

These ‘interpretative synergies’ offer promise for shifting the boundaries of international human rights law: in constructing integrative approaches to fill legal gaps, better prevention and addressing protectively collective threats, and –in the spirit of the Universal Declaration of Human Rights- creating an ‘enabling environment’ to fulfil all human rights, especially for those not only confronting isolated moments of risk or individual human rights violations, but rather conditions of structural vulnerability affecting their everyday lives. Continue reading

Go On! This Thurs, Feb. 26: Cardozo, Fordham Law present ‘Liberty and Security Today: A New Normal?’

 Given renewed fears of terrorism driven by the rise of ISIS and their skilled use of social media, how is the continuing conflict over security and liberty evolving? What can we expect in the future as the renewal of the Patriot Act looms and debate over authorizations for the use of force and surveillance come to the floor of Congress? Is there a new normal?  And if so, what does it mean for civil liberties and for the safety and security of Americans?

 

This Thursday, Feb. 26, from 7-8:30 pm, the Cardozo Law Institute in Holocaust and Human Rights and The Centre on National Security at Fordham Law will present “Liberty and Security Today: A New Normal?” (See event flyer here: Liberty and Security Today FINAL.) To attend, please RSVP to cardozo.clihhr@yu.edu

 

This event is free to the public and has been approved for 1.5 NYS transitional/non-transitional CLE credits in the category “Areas of Professional Practice.” To register for CLE credits, please RSVP to cardozo.clihhr@yu.edu with subject line: RSVP for CLE credits.

Write On! Naval War College Seeks Papers on Women, Peace, Security

(Photo Credit: U.S. Navy)

The U.S. Naval War College (NWC) is issuing a call for papers in preparation for its third annual Women, Peace, and Security (WPS) Conference Series to be held at the NWC in Newport, Rhode Island, April 16-17, 2015.

In an effort to gather theoretical and practical ideas from a wider audience not normally represented in a limited conference format, the conference series chair is soliciting papers from academics, researchers, military personnel, non-governmental organizations and individuals who have an interest or experience in issues pertaining to WPS.

In support of the conference theme, “Constructive Pathways: Stimulating and Safeguarding Components of Women, Peace, and Security,” interested parties can contribute to this goal by submitting a paper on one of the following subjects:

  • Department of Defense operational aspects of WPS
  • How different types of conflict impact minority populations
  • Regional viewpoints of modern conflict zones
  • Efforts in soft and hard power
  • Media, arts, information and communication networks
  • Law, politics and governance
  • Quantitative studies

    Selected papers will be published on the NWC website and accessible to U.S. Navy personnel fleet-wide. Proposals must be submitted by Nov. 1, 2014. Submission guidelines can be found at https://www.usnwc.edu/wps2015-callforpapers.