An Obligation to Regulate: How Private Military Companies Embolden Conflict with Impunity from the Middle East to Central Africa
The use of Private Military Companies (PMCs) has greatly expanded over the past two decades—enabling powerful states to outsource conflict and undertake increasingly risky and destructive overseas military action. Despite their enormous power and proliferation, PMCs occupy legal gray areas under international and U.S. law. How can the international community and the United States reign them in?
President of Russia, Vladimir Putin, shaking hands with the president of the Central African Republic, Faustin-Archange Touadéra. Photo: Wikimedia Commons.
By: Molly Bodurtha, Staff Member
In December 2020, on the eve of a tumultuous election, President of the Central African Republic (CAR) Faustin-Archange Touadéra urgently requested foreign military assistance to help the central government push back armed groups fomenting the country’s civil war. Russia swiftly answered President Touadéra’s call, dispatching 300 “unarmed” military instructors to CAR.
Russia’s alacrity to intervene militarily in the central African state was unsurprising. In fact, the instructors’ deployment represented only a fraction of Russia’s formal and informal military presence in the country and region. Journalists and UN experts estimate that over 2,000 armed Russian mercenaries have played an active role in the conflict in CAR since 2018.
Unacknowledged by the Kremlin, these Russian fighters are reportedly employed by the Wagner Group—a private military firm with close ties to Vladimir Putin and a history of deployment on the frontlines of Russia’s most controversial and destructive foreign policy forays: from covertly supporting Assad’s regime in Syria to facilitating Russia’s annexation of Crimea in 2014. Keeping with that legacy, the mercenaries in CAR have helped investors secure control over valuable natural resources and subjected journalists, peacekeepers, and civilians to mass executions, torture, sexual violence, looting, and harassment. Indeed, when many Russian mercenaries suddenly departed central Africa in February 2022, it became evident they were being redirected to Ukraine.
The international community is now anxiously fixated on Russia’s invasion of Ukraine. Simultaneously, many observers are also mournfully grappling with its precedents, including the U.S. invasion of Iraq, and fearful of what it might inspire, including a potential annexation of Taiwan by China. At this pivotal moment, it is imperative that we confront the factors that, in the 21st century, have emboldened powerful states—not only Russia—to seek to aggrandize themselves through military conflict.
The Prevalence of Private Military Companies in Conflict and Trade
Powerful nations’ unfettered deployment of private military companies (PMCs) is one such factor. Valued at over $200 billion, the PMC industry employs over 1 million personnel to provide “military services”—from combat support and weapons system operation to prisoner detention—to governments, companies, and private citizens. From the industry perspective, PMCs arguably face financial incentives to perpetuate conflict. And from the government perspective, PMCs allow states to operate less conspicuously, avoid political costs of deploying uniformed soldiers, and even obscure the governmental role in abuses. Ultimately, PMCs’ availability, and the prospect of resource acquisition, could lower disincentives for a state like Russia to involve itself in CAR’s civil war.
The utilization of PMCs is certainly not a unique feature of Russian foreign policy. For instance, the United States, the largest supplier and consumer of PMCs, deployed more contractors in Afghanistan and Iraq than uniformed soldiers. PMCs participated in the most widely condemned aspects of those conflicts, including the rendition and torture programs, the unspeakable abuses at Abu Ghraib prison, and the Nissour Square civilian massacre.
Likewise, armed PMCs are not exclusively used in wartime, and have been contracted to protect overseas investments. For instance, in countries partnering with China under the Belt and Road Initiative, such as Cambodia, multinational, armed security forces employed to protect investment properties have facilitated illegal commerce and land grabs.
Gaps in International Humanitarian and Other Law
Despite their power and proliferation in an increasingly specialized, privatized defense landscape, PMCs occupy gray areas under international law. Technically, PMCs are bound by the Geneva Conventions. Meanwhile, states where PMCs operate and which supply PMCs face obligations under human rights law to prevent abuses by both state and non-state actors. However, absent unusual circumstances, states are unlikely to pursue accountability for entities perceived to promote national security objectives. What is more, achieving accountability against transnationally mobile PMCs practically requires the buy-in and cooperation of multiple governments. PMCs also slip through the cracks of more direct regulation. The Convention against the Recruitment, Use, Financing and Training of Mercenaries, for example, does not encompass any contractors that are nationals of parties to a conflict.
Two transnational efforts aimed to fill this gap but fell short. In 2008, Switzerland led a multi-stakeholder initiative to develop the Montreux Document, a list of “best practices” for the industry and contracting states. Crucially, the Document recommends that states conduct due diligence on PMCs prior to contracting, and that PMCs conduct due diligence on personnel prior to hiring. And in 2013, an association of PMCs, the International Code of Conduct Association (ICoCA), promulgated an International Code of Conduct for Private Security Service Providers (ICoC) “to ensure that providers . . . respect human rights and humanitarian law.” Despite their value, both instruments remain non-binding and provide no justice for victims, nor sanctions for PMCs beyond professional debarment.
As a result, PMC personnel receive less stringent, less standardized training regarding their obligations under international and host state law and are subject to fewer and weaker accountability mechanisms than are service members. The lack of oversight is especially concerning given how the security of states where PMCs operate is often reliant on PMCs. For instance, although Russian abuses in CAR have triggered public anxiety and “alarm” from UN experts, accountability seems like a far-off prospect. President Touadéra is seen at public appearances flanked by masked Russian soldiers carrying automatic weapons, and has promised only that CAR authorities would repatriate, but not prosecute PMC personnel accused of human rights abuses.
Solutions: Supply-Side Regulation & Investigative Infrastructure
Despite the practical constraints host states face in pursuing accountability, regulation by supply-side states could still meaningfully constrain PMCs’ conduct. As the leading supplier and consumer of PMCs, the United States should lead global efforts to reign them in—not only to rectify its own track record of abuse but also to advance global standards. Strengthening shared norms on permitted and prohibited uses of PMCs would allow the international community to respond forcefully and in unison to violations by Russia or anyone else. Of course, regulation risks legitimizing the industry and the military-industrial complex writ large. But leaving the industry to regulate itself has only permitted further obscuration and abuse.
The United States can and should promptly act to remedy this gap through three complementary regulatory schemes. First, to curb future abuse, Congress should prohibit U.S. persons from engaging with PMCs that are not members in good standing of the ICoCA. Meanwhile, civil society should cooperate with the ICoCA to enhance standards and report abuses.
Second, to achieve accountability for perpetrators and justice for victims, Congress should impose civil and criminal liability on implicated PMC personnel. Both current and proposed U.S. law limits criminal liability in problematic ways, containing flawed exceptions for abuses occurring in certain locations, for instance, outside of diplomatic compounds, or for abuses arising from intelligence activities. Moreover, victims and their families currently have few, if any, means of recovery under the status quo, especially since Nestle USA, Inc. v. Doe’s curtailment of the Alien Tort Statute.
Third, to build foundational infrastructure for transnational investigations, the United States should revisit and push forward a stalled UN Open-Ended Intergovernmental Working Group initiative to draft a convention requiring international cooperation and evidence exchanges in investigations.
Russia’s invasion of Ukraine—enabled, in part, by PMCs—should present a moment of reckoning: one that invites U.S. policymakers’ urgent reconsideration of the free-market system that we have allowed to govern PMCs. That system has buttressed the global proliferation of dangerous, armed mercenaries who carry out nation-states’ dirty work with impunity. What began in Nissour Square and Abu Ghraib now reaches Bangui and Kyiv. Where will it stop?
Molly Bodurtha is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from Williams College in 2017, and is a student on the Columbia Law School Smith Family Human Rights Clinic’s Project on War Crimes and Mass Graves.