Statement by the Delegation of the United States of America
Open-Ended Intergovernmental Working Group on
Private Military and Security Companies, August 13-17, 2012
Thank you Mr. President. We very much appreciate this opportunity to discuss in more detail the nature of the industry, both because we hope the discussion itself will be illuminating and because we think it is critical as we proceed with the program of work that we keep in mind these fundamental issues.
From the U.S. delegation’s perspective, it is important to distinguish three terms – Private Security Companies (PSCs), Private Military Companies (PMCs), and mercenaries. PSCs perform functions such guarding personnel, facilities, designated sites, or property; this can include operations in complex emergencies and similar environments as well as operations with which we are all probably more familiar, such as guarding hotels in stable environments. PMCs, by contrast, perform functions in support of the military such as logistical support unique to armed forces, maintenance and operation of weapons systems, or military training. Another distinct category that further complicates this field is that of mercenaries, which are defined in Article 47 of Additional Protocol I. While some legal regimes have taken a prohibitory approach to mercenaries, IHL has long recognized the legitimate role of civilians, like PMCs and PSCs, authorized to accompany armed forces.
It is also important to distinguish between situations of armed conflict – to which IHL applies — other situations where violence and/or instability have led to the use of commercial security providers, and other environments.
The reason these distinctions are important is because the same rules plainly are not appropriate for an individual guarding a hotel in a state with robust and effective domestic laws, an individual guarding a consular or diplomatic post in a high-risk environment, a contractor who trains a police force, and someone taking direct part in hostilities for hire.
This diversity is one of the reasons why we oppose a convention. Different elements of the PSC and PMC industry present different challenges. Attempting to negotiate a one-size-fits-all legally binding instrument is not a recipe for success.
We also think it is important to recognize what is described on the programme of work as “challenges with regard to the extraterritorial activities of PMSCs.” One such challenge is that although territorial states typically have laws on the books regarding PSC activities, their ability to enforce the law may be limited, both by capacity and by the fact that the PSC may be operating in a remote or high-threat location. (In fact, the reasons why clients often need to contract with PSCs is because the rule of law has been undermined in their area of operations). This is an issue we very much support addressing – whether through domestic legislation, such as our own effort to broaden the scope of extraterritorial jurisdiction, or through international measures such as law enforcement cooperation or capacity building.