ARI 96/2017 – 11/27/2017
The European Parliament has approved a Report on Private Military and Security Companies (SPMS) that urges to regulate its concept, activities and external projection. A necessary regulation to overcome the lack of definition, complexity and legal vacuum in which they find themselves.
The Report is a first step towards the regulation of Private Military and Security Companies (SPMS) that support the regular Armed Forces in their activities, a term under which the Private Security Companies or Private Military Companies (PSC) are known in Spanish. PMC, in its English acronym) and more commonly known as private contractors. A necessary regulation due to the complexity of the sector and the legal vacuum it is in, as well as its size: 45,000 companies and about 2 million workers according to the data of the European employers of 2017. This ARI includes the regulatory proposals of the Parliament European Union on definition, principles, activities and action of PMSCs. It also describes its relationship with the foreign, security and defense policies of the EU and its member states.
The European Parliament has recently approved a Report on Private Military and Security Companies (SPMS), 1 which proposes a broad regulation on them, starting with the definition of which companies would have this consideration, as well as their activities and geographical scope of action.
Starting from the definition, and according to the comparative studies of the United Nations, 2 no EU Member State has been able to propose a definition of these companies that could be generalized and each has included a non-exhaustive list of activities that PMSCs could do. . The Report, although it considers it necessary to reach a more comprehensive definition, agrees with the one proposed by the United Nations Working Group for the Mercenary Convention, according to which an SPMS is “a corporate entity that provides military services and / or security through individuals or legal entities on the basis of remuneration “. 3
Due to the fact that its contracting (outsourcing) has increased for the support of the European Armed Forces, both inside and outside, the Report appeals to the need for a common future definition on PFME that includes, on the one hand, its security services and, on the other, military services (although they would have to be called “militarized” according to Spanish preference, since the personnel of PMSCs is not military personnel).
Regarding the precise distinction of what can be understood by military or civilian, the European intergovernmental organization FINABEL proposes a very interesting definition that is not included in Report 4 and according to which PMSCs are “a wide variety of civil assistance organizations” military, consultancy and support, which contribute to military operations. ” In this way, it seems more accurate to refer to PMSCs as civilian contractors that would provide logistic support services, consultancy services and non-combat military services. Spain, within Finabel, is opposed to the use of the adjective “military” to name this type of corporation because it causes confusion, since its contracted personnel is civil, while military means soldiers or Armed Forces.
The Parliament’s Report understands military activities as strategic planning, intelligence, research, reconnaissance, manned or unmanned air operations, satellite surveillance, knowledge transfer with military application, and technical and material support. For their part, the security services include building protection activities, armed guards, protection of property, people and facilities, and transfer of knowledge with security and police applications. Spain, like many other Member States, has only regulated the activities of PMSCs within its national territory, but not abroad, with the sole exception of the security crews on board. 5
In a broad sense, authors such as Loxa and Siagkou have recently proposed to consider as EMSP “any private company that provides armed security services or not, to individuals and the public on the basis of a contractual relationship”. 6 The reference to a contract is relevant insofar as it conditions the activity of PMSCs to the existence of a client, which could be a public good such as the Ministries of Defense or Foreign or Private as multinational companies with presence in conflict zones.
Therefore, a possible more comprehensive definition could be based on the proposal of the United Nations, associating the activity of the PMSCs with the necessary existence of a contractual relationship and authorization of the States of origin and destination of the military or security services rendered, although expressly excluding mercenaries from the definition, 7 in their acceptance of the Geneva Treaties. The proviso is important because if PMSC personnel had a legal status similar to that of combatants, they could enjoy the status and protection of the prisoner of war status, which protection they would not have if they were mercenaries. Therefore, the personnel of the PMSCs, and whenever they operate in a conflict zone, should be covered by an agreement on the status of force (SOFA), which is a type of international agreement that regulates legal status. , rights, obligations, privileges and immunities of the Armed Forces in countries in conflict. Based on this broad definition, the EU would only have to reach an agreement on which clients could contract SPMS, for what type of services and under what kind of circumstances.
With the private sector, PMSCs could only work for those companies legally established in a country (State of origin), with authorization from their government and that have a code of conduct compatible with international standards. 8 To act in another country, they must also have the consent of their government (State of destination or host nation ) unless it is a failed state or international waters. The Report recommends that only PMSCs established in the EU be contracted to avoid contractual paradises, which – unless agreed in the Brexit negotiations – leaves the future EU regulation out of the UK, which is the main subcontractor of EMSP (a company as the British G4S 9 has 585,000 employees worldwide). This recommendation of the report is made by analogy with NATO, whose practice, according to the report itself, is the hiring of PMSCs established in their member states, according to a regulation that regulates a meticulous HMSP procurement procedure, exclusively for services of security, not regarding “military services”, being in any case the exception the recourse to outsourcing. 10
Origin of the Report
The initiative of the Parliament Report is due to a particular initiative of MEP Hilde Vautmans, who convened a Public Hearing in December 2015 with academics, industry representatives and experts, including the president of the UN Working Group on mercenaries, to analyze the need to regulate the sector. Subsequently, she herself would be responsible as rapporteur to prepare a Provisional Report on “Private Security Companies” to which 243 amendments were made. The procedure was framed within the European Parliament’s own Security and Defense Subcommittee (SEDE), an institutional forum dedicated to issues of external security and defense, but which considers that PMSCs are also linked to the Union’s internal security perspective. . The report was approved by the Foreign Affairs Committee, which is the seat of the SEDE, on May 2, 2017 and by the plenary session of the Parliament on July 3 and 4 in Strasbourg.
The European Parliament initiative aims to prioritize the establishment of clear rules for interaction, cooperation and assistance between law enforcement agencies and private security companies, basically abroad. The approval of the Report is a first step in the regulatory process of PMSCs, in which the Council and the Commission are the main recipients of Parliament’s recommendations. If this is done, the Commission could prepare a Green Paper after consulting all the interested parties and, where appropriate, preparing a White Paper that would reflect the basic consensus reached. The aforementioned Green Paper will have the specific objective of establishing basic standards of commitment and good practices, and laying the foundations for further regulation of PMSCs. It will also seek to establish sector-specific quality standards for the EU territory and clarify the definition of PMSCs before effective regulation of their activities is introduced, since the lack of such definition can create legislative gaps.
For its part, the PMSC sector, which in 2006 obtained the exception of the application of Directive 2006/123 / EC on services of the internal market, 11 has not managed to self-regulate at European level since then – although there is a general self-regulation international sector -, which will lead, according to the report, to the regulation by the public authorities of their activities both outside the EU territory and inside, if the previous Directive is modified to include private security services , currently excluded (art.2, letter K), through recourse to the ordinary legislative procedure provided for in the Treaty for the Functioning of the EU (Article 294). In favor of inclusion, both the Commission and the Court of Justice of the EU have expressed themselves in different pronouncements.
Ultimately, the Report proposes that the Commission define and create a European regulatory model to help harmonize legal differences between Member States through a Directive; review public-private collaboration, provide standards for private security service providers within the EU or operate abroad and guarantee the accountability of PMSCs. Likewise, the Report requests the Council to include the services of PMSCs in the EU Common Military List, which controls the export of military goods and services to third countries, in accordance with the EU Common Position 2008/944 / CFSP on arms exports.
Structure of the report and informative principles of regulation
The Report is divided into three distinct parts. The first two, try to frame the precedents and legislative precedents, whether they are hard law (binding norms) or soft law (non-binding norms), the last one refers properly to the regulation of PMSCs.
Other regulatory documents mentioned in the Report include the United Nations Working Group on the use of mercenaries, the International Code of Conduct of the Association (ICoCA), 12 as well as the Montreux document – up to date the cornerstone of global soft law regulation. 13 Among the informative principles affirmed in the Report, it is emphasized that security and defense are public goods provided by public authorities, based on efficiency, efficiency, accountability and the rule of law.
The Report recognizes that security and defense competences fall on the Member States, although they may lack control capabilities. According to the same, the PMSCs play a complementary and subsidiary role -not in any case substitute- of the foreign, security and defense policies of the States, their role in missions and operations of the CSDP being fundamental. Within this, the principle of cooperation with and under the supervision of public authorities does not mean that PMSCs can substitute personnel of the national Armed Forces under any circumstances. The relationship between the civilian and the military world or, more clearly, between the private security sector (contractors) and the public security sector (public authority) must be based on clear rules of interaction, cooperation and assistance.
With regard to the statistical data of the sector provided in the Report, it is to be expected that they will be updated in the Commission’s Green Paper, since somewhat outdated figures are mentioned. For example, it is reported that in 2013 more than 1.5 million jobs were distributed in some 40,000 EMSP. However, in 2017, according to data from the European employers’ association of the sector , 45,000 companies and at least two million jobs are counted. The turnover of these companies in said 2013 amounted to 35,000 million euros, while globally the sector computes about 200,000 million dollars (2016) with nearly 100,000 companies and 3.5 million workers. The imprecision in the data and the sources does not allow knowing if each and every one of the referred companies are reconducibles to the concept of PMSC, not even to the place of contracting and execution of their services, or the groups of clients -States, organisms or companies multinationals-, so the Report asks to address a broad study of a sector that the Court of Justice of the EU considers economic and, therefore, within the scope of the Commission’s regulatory powers. 14
In relation to the activities, the Report lists the entire list of activities being carried out, in general, without further data, by PMSCs throughout the world, ranging from logistical support activities or support during combat to custody of prisons civilians or protect EU delegations, or build fields on the ground or give training. The Report establishes a regulatory principle and makes it clear that the missions of PMSCs will not be able to have as a model of regulatory reference the US because it was established during the war in Iraq to facilitate the participation of PMSCs in combat missions. 15 A case other than the EU PMSCs, to which the Report strongly excludes all those missions that involve the use of force and weapons, although some North American regulations and technical standards on controls and inspections may apply to them. . With this, the MEPs try to avoid the damage that any association between PMSCs and mercenaries would cause to the EU’s image. 16
The necessary regulation of the use of PMSCs in support of military operations abroad
The European Parliament already requested reports in 2007 and in 2011 on the role of PMSCs in the framework of CSDP missions and operations. 17 Its interest is part of the increase in the hiring of this type of companies to alleviate the lack of specific capabilities in the European Armed Forces, in the increase of missions abroad and in the existence of quantitative limits in national legislations to the presence of troops abroad. Parliament’s regulatory interest has found an echo in the Council, although it has limited itself to recommending cooperation between national authorities, excluding PMSCs from the above-mentioned Directive on the provision of services in the internal market, although it recognized the possibility of studying the convenience of sector harmonization. A possibility given by Directive 2006/123 / EC, but which the Commission rejected in 2011, opting to apply to the PMSC sector the principle of freedom in the provision of services, in accordance with Articles 49 to 56 of the Treaty for the Operation of the EU without proceeding to harmonization.
According to the Report, PMSCs should adhere to the principle of multiculturalism and respect for differences, outside the Union, without artificially creating local armed groups that may have destabilizing effects (rule of non-interference). Neither should it subcontract local SPMS to avoid risks of image and legitimacy, given that the EU’s objective is the consolidation of viable and democratic states. The operations and activities contracted to PMSCs in conflict zones must be limited to providing logistical support and the protection of the facilities, abstaining from activities that involve the use of force, with the exception of self-defense. The cost-benefit principle will not be the main criterion when selecting PMSCs and States must establish a legal framework with binding mechanisms of regulation, sanction and supervision in which the European Parliament participates.
As the EU itself resorts to PMSCs to protect their delegations and staff abroad and to support their civil and military CSDP missions, the Report recommends the Commission to propose common guidelines for the recruitment of staff, its use and management of military and security contractors in the EU. These guidelines should be based both on existing international best practices, in particular the Montreux document and the International Code of Conduct referred to above. Also, the creation of an open list of compliant contractors with the standards and regulations approved by the EU on PMSCs, for example, regarding criminal records, economic and technical solvency, and possession of licenses. In the event that the EU uses PMSCs in a third country with which it has concluded an agreement on the status of forces – SOFA agreements – the contracted private security companies must always be included in this agreement, where it will be necessary expressly that these companies will be responsible in accordance with EU law.
The Report is only a first step towards the regulation of PMSCs, which must be processed through the mandatory green and white books in the coming years. A sector in development and without whose regulation, the external action of the EU could be compromised. The Report clearly supports the regulation of PMSCs in a system based on control, transparency, accountability, respect for human rights and the prohibition on PMSCs participating openly in hostilities and combat zones.
The Parliament assumes that the collaboration between the public and private sectors will go further, so it is necessary to integrate all sectors in the preparation of the proposed Green Paper, opening participation to the private sector in a matter that until now was reserved to the state monopoly, and safeguarding the competence of the States in matters of security and defense.
It is now up to the Member States, the Commission and the Council to collect the glove launched by the European Parliament, at a moment of momentum, since 2016, of all the policies relating to the defense and security of the Union, and at a moment of redefinition of the role of State intervention and private companies in the security sector, in such key areas, for example, as cybersecurity, counter-terrorism and international missions.
Lawyer ICAM 74,671, analyst in international affairs and collaborator of the Working Group on Trends in Security and Defense of the Elcano Royal Institute
1 Hilde Vautmans (2017), “Report on private security companies” (A8-0191 / 2017), European Parliament.
2 Office of the UN High Commissioner for Human Rights, “Comprehensive Regional Studies: Europe” .
3 Report A / HRC / 15/25 of the United Nations Working Group.
4 FINABEL (2008), “Report on possibilities and limitations of the operational co-operation with private” , 8 / X / 2008.
5 Royal Spanish Decree 1628/2009, of October 30, developed by the Order of the Presidency of the Government PRE / 2914/2009, of October 30, provides for private security in Spanish fishing and merchant vessels when these vessels “develop their activities in waters subjected to special situations of risk to the life and integrity of its crew “.
6 In the US, PMSCs include physical, personal and information security activities (including in the latter the information systems) according to Alezini Loxa and Danae Siagkou (2016), “Private Security Companies in the EU”, LSEU, vol. 3, pp. 7-26.
7 Article 47 , on mercenaries, of Protocol I additional to the 1949 Geneva Conventions on the protection of victims of international armed conflicts, 1977.
8 The responsibility of companies to respect Human Rights. Interpretation guide , United Nations High Commissioner for Human Rights (last accession 7 / VII / 2017).
10 See “ACO Directive 060-101 on contracting with PSC”. Andrés B. Muñoz-Mosquera and Nikoleta P. Chalanoubi highlight that the presence of PMSCs in NATO operations is due to their recruitment by allied countries ( www.iihl.org , Private Military and Security Companies , chapter entitled “Regulating and monitoring PMSCs in NATO operations “, pp. 128 et seq.). A controversial contract because the policies and regulations of the allies show remarkable differences according to Christian Kjelstrop (2011), “NATO and PMC. Different approaches and challenges to internal cohesion and solidarity “, Master Thesis, 23 / V / 2011, University of Oslo.
11 Directive 2006/23 / EC of the European Parliament and of the Council of 12 / XII / 2006.
12 https://icoca.ch/en/the_icoc (last accessed 2 / VII / 2017).
13 The Montreux Document (last accessed 30 / VI / 2017).
14 Court of Justice of the European Union, C114 / 97 (vs Spain), C-355/98 (vs Belgium), C-283/99 (vs Italy) and C-189/03 (vs the Netherlands), in the Report of the European Parliament, General Directorate of Foreign Policy, SEDE (2011), “The role of private security companies in CSDP missions and operations”.
15 Contrary to what the report suggests, the US also currently prohibits , and expressly, that PMSCs enter into combat, although US regulations allow the use of force in cases of self-defense, defense of third parties and protection of property and personnel. of the US government.
16 Stella Ageli (2016), “Private Military Companies (PMCs) and International Criminal Law: Are PMCs the New Perpre- tators of International Crimes?” , Amsterdam Law Forum, vol. 8, no. 1, pp. 28-47, April.
17 General Directorate of International Relations (2007), “The increasing role of private military and security companies”; and General Directorate of International Relations (2011), “The role of private security companies in CSDP missions and operations” .
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