By Bamigboye Oluwaseyi Mike and Christopher Kinsey

The regulation of private force has often been viewed through a Western lens, overlooking the unique challenges and perspectives of African states grappling with their security challenges. In this article, Bamigboye Oluwaseyi Mike, a lawyer and Ph.D. candidate at Deakin University in Australia, and Kinsey Christopher, a Professor of International Security at the Defence Studies Department at King’s College London, argue for a shift towards an Africa-centric approach to the regulation and oversight of private force. Drawing from their work, “Private Force in Africa: Reassessing Regulatory Frameworks and Advocating for an African-centric Approach to PMSCs, In E. Cusumano, C. Kinsey & R. Parr (Eds.), The Past and Future of Private Force: Mercenaries and Security Contractors in the 21st Century, Routledge (forthcoming), they highlight the limitations of international law and self-regulatory mechanisms, but also point to the potential of these mechanisms and argue that African states should leverage initiatives such as the Montreux Document and the International Code of Conduct for Private Security Service Providers (ICoC) to strike a balance between protecting regional interests and ensuring effective regulation of private force that not only improves accountability and transparency but also prioritizes the protection of African populations.

Beyond the Wagner Group, now the Expeditionary Corps, Africa has become a focal point of a major shift in security dynamics, characterized by the growing presence of private military and security companies that are increasingly taking on security tasks traditionally performed by States. However, the question arises as to how the need for the specialized security services they provide can be reconciled with ensuring peace and stability in regions already rife with conflict, especially given their involvement in human rights abuses—a concern that exposes the stark reality of the industry’s rapid growth, outpacing international and domestic legal frameworks, as well as self-regulation put in place to oversee it thus leading us into uncharted waters where questions of accountability and ethical practice loom large.

Importantly, the resulting concerns about accountability and unethical practices associated with the operations of these companies, and in particular the numerous incidents of human rights abuses, highlight the limitations of existing international laws, the Montreux Document which reaffirms the legal obligations of states concerning private military and security companies and provides best practices for compliance with international law, and the International Code of Conduct for Private Security Service Providers (ICoC) which builds on the Montreux Document by introducing voluntary standards and accountability mechanisms for PMSCs and aims to improve compliance with international legal standards through its monitoring mechanisms.

Fundamentally, the effectiveness of international law is hampered primarily by its inability to fully capture and take into account the nuances of inter-state relations and specific regional contexts. This is true even as its process and enforcement are strongly influenced by the agenda of dominant global powers and organizations and are difficult even in areas with weak state control where there is often a lack of a solid institutional framework and resources to implement and uphold international law. Self-regulation, on the other hand, relies on voluntary compliance with ethical standards by security companies without a formal enforcement mechanism. 

In addition to the inadequate protective capacities of these two twin sentinels, namely international law and self-regulation, the discourse on regulation is overly shaped by Western narratives, experiences, and perspectives that often miss the unique challenges and geopolitical, social and economic realities of African states — where private military companies are particularly active; a situation made all the more worrying by the African Union’s (AU) reluctance to tackle the issue head-on, despite its rise in international politics and its founding mandate to ensure the continent’s security and stability — a legislative gridlock that researchshows is not due to a lack of agency or laws, but a strategic choice based on sociological factors, justifying the decision to maintain its status as a representative of Western interests to preserve regional preferences in international politics.  

The Limits of International Law

From the mid-19th century, efforts such as the Paris Declaration of 1856 marked the beginning of international efforts to abolish “privateering” and reflected a growing disdain for such practices that coincided with democratic progress in Europe and North America. These efforts, as well as the Hague Convention of 1907, which aimed to introduce state oversight of militarized activities, were examples of early efforts to control the privatization of warfare. In the mid-20th century, the United Nations attempted to promote these principles through resolutions addressing issues such as aggression and the role of mercenaries, emphasizing a global commitment to the regulation of irregular forces. However, these efforts often failed due to the complexity of defining mercenary activities and the changing nature of warfare, as well as a lack of political will to do so. Thus, the struggle for a cohesive legal framework continued into the second half of the 20th century. An example of this is the 1977 attempt by the Organization of African Unity (OAU) to eliminate mercenaries which failed because the definition of the term “mercenary” was too precise and because of the low ratification rates. Even the  Geneva Conventions’s efforts to define and limit mercenaries encountered limitations given that the definition is overly restrictive, subjectively based on motivation, excludes various relevant categories, is ambiguous, and does not adequately cover modern private military and security companies (PMSCs); a gap that allowed for some flexibility that states and private companies could exploit, limiting accountability. To this end, the 1989 International Convention Against the Recruitment, Use, Financing, and Training of Mercenaries was intended to address these problems but struggled with enforcement issues, particularly the lack of ratification by the major powers. This underscores the general reluctance to strictly regulate the industry that is further complicated by the ability of private military and security companies to navigate legal grey areas at the national level, as is the case in South Africa, where companies circumvent the Foreign Military Assistance Regulation Act by operating under different names and in different locations.

Whither the International Criminal Court?

Reflecting on the Nuremberg and Tokyo trials, which set a precedent for holding both individuals and corporations accountable for serious crimes, there’s a question about the International Criminal Court (ICC)’seffectiveness in ensuring international accountability of private force. However, the ICC, established by the Rome Statute, limits its jurisdiction to prosecute genocide, crimes against humanity, war crimes, and crimes of aggression to individuals, not corporations. In doing so, it departs from the broader accountability principles of earlier trials and highlights a gap in addressing human rights violations committed by private military forces under a corporate cloak. Yet, there is a glimmer of hope. The ICC’s varied recognition of individual responsibility for serious crimes as enshrined in Article 25, particularly through the principle of superior responsibility enshrined in Article 28, carves out a path for the prosecution of private force personnel especially overseers who fail to prevent atrocities. This, however, casts a spotlight on the ICC’s jurisdictional shortcomings and the overarching challenge of legitimacy and universal jurisdiction, which is highly dependent on the cooperation of states and limited to the signatory states of the Rome Statute; a limitation that is particularly pronounced in Africa, where only 33 of the 55 states are signatories to the Rome Statute, limiting the ICC’s jurisdiction even if it overcomes its reluctance to investigate and prosecute cases involving corporations. It also highlights the difficulties in applying international norms in different jurisdictions.

Even so, the principle of complementarity, which positions the ICC as a court of last resort that only intervenes when national courts are unable or unwilling to prosecute, underlines the indispensable role of the state legal framework in the pursuit of global justice and thus poses a further challenge to effective regulation, as these private forces are used as instruments of state policy and or coercion and are thus unlikely to be able to prosecute these private actors for offenses. Nevertheless, we see this as a promising avenue if the political will to investigate and prosecute exists: by expanding corporate liability within their legal systems, states have the opportunity to overcome the limitations of the International Criminal Court, although this approach is heavily dependent on the effective implementation of national laws, which remains a major challenge in many African countries. However, a shining example of this emerging appetite and forward-looking approach to holding corporations liable at the regional level is the African Union’s Malabo Protocol of 2014 which enables the African Court on Human and Peoples’ Rights to hold corporations accountable for their crimes including mercenarism, which is one of the 14 international crimes over which it has jurisdiction, and therefore has the potential to influence member states to incorporate similar provisions into their national legal systems through regional cooperation and legal harmonization. It thus provides a blueprint for bridging the jurisdictional gap of the ICC by recognizing the criminal liability of both individuals and corporations.

A Further Challenge with Attribution

Traditionally, the obligation of the state must be established as a condition precedent for liability to arise under international law. However, in the context of the use of private force, a different question arises: how can we clearly distinguish between the actions of state entities and those of PMSC personnel, especially when the roles and responsibilities of these entities often overlap in operations, making attribution more complex? Traditionally, states are held responsible for acts committed by their officials or armed forces. However, determining when a state should be held accountable for the actions of a private force it engages presents a legal challenge. More specifically, it is a question of determining when these private entities are acting under the instructions or control of the state to such an extent that their actions should be legally considered as those of the state itself.  As such, the International Court of Justice (ICJ) and other tribunalshave grappled with this question introducing thresholds such as “effective control” and “overall control” to assess the state’s responsibility. For example, in the Nicaragua case, the ICJ ruled that the US was not responsible for the Contras because it did not have effective control over their specific operations. However, these standards are applied differently depending on the situation, whether in assessing state responsibility or individual liability. To address the complexity of modern warfare and the use of PMSCs that operate across borders in a quasi-military capacity, the Articles on the Responsibility for Internationally Wrongful Acts (ARSIWA) provide guidance as a progressive development of customary international law by offering a way for states to be held accountable for the actions of entities acting under their direction or control by expanding the boundaries of attribution, notwithstanding the ICJ’s refusal to consider this as settled law. Moreover, if a state fails to prevent a human rights violation, its international responsibility may be engaged, regardless of whether the violation is committed by a private actor or one of its officials. Our commitment is to the pushing of the boundaries of law beyond technicalities to ensure accountability for human rights violations and other abuses. In this sense, we argue that international law must now adapt to the changing nature of modern warfare by recognizing the complicated relationships between states and private forces, where explicit control is not always clear, but a de facto relationship based on contracts or mandates exists. This adaptation should include expanding the framework for attribution, improving legal instruments, increasing state responsibility, strengthening international cooperation and developing customary international law to ensure comprehensive accountability for human rights violations.

The Limits of Self-Regulation

Just as in 1991, when UN member states rejected the proposal to categorize mercenarism as a crime against peace and security, there was a similar rejection in 2009 when the UN Working Group attempted to present a draft convention to regulate private military and security companies, suggesting a double standard and calling into question the sincerity of their commitment to human rights, especially as one might expect these nations to support such a Convention to regulate the use of these companies, given their commitment to human rights and the potential threat to those rights posed by private force. In the latter case, major players such as the US, UK, Switzerland, and Australia resisted, favoring less restrictive measures that are consistent with their foreign policy interests, which are underlined by the strategic advantages of these private companies—a resistance that is not an isolated or new phenomenon but the continuation of a long-standing tradition in which strategic and economic considerations have determined the regulatory stance of these nations. As a result, a “soft law” emerged, epitomized by instruments such as the Montreux Document, the UN Guiding Principles on Business and Human Rights, and the International Code of Conduct for Private Security Service Providers, which represent an attempt to reconcile the demand for oversight with the industry’s need for operational freedom and to promote ethical guidelines and standards for security operations. 

While these frameworks aim to promote better regulation, oversight, and accountability of PMSCs, their effectiveness is undermined by several critical weaknesses. First, the implementation of these standards is fragmented, inconsistent, and often superficial, lacking the rigor and comprehensiveness required for true accountability. This is exacerbated by the minimal input from all relevant stakeholders, particularly from regions such as Africa, which are disproportionately affected by the activities of PMSCs but underrepresented in regulatory negotiations. In this sense, the lack of diverse perspectives and local insights into these frameworks undermines their legitimacy and applicability, resulting in standards that may not fully address the specific challenges and concerns of all affected communities. Furthermore, trust in self-regulation within the PMSC industry is fraught with challenges. While self-regulatory mechanisms such as ANSI/ASIS PSC.1 and ISO 18788 certifications aim to establish operational standards and accountability, their impact is limited by the voluntary nature of compliance and the lack of a robust mechanism for monitoring and enforcement. Even so, the lack of mandatory reporting, third-party audits and meaningful sanctions for non-compliance allows companies to avoid true accountability, which raises questions about the effectiveness of these self-regulatory efforts. In addition, the focus on reputational risk as a deterrent overlooks the fact that companies with a history of human rights abuses continue to secure contracts and operate, often under different names or affiliations, without facing significant repercussions. To address the weaknesses of the current voluntary framework for the regulation of private military and security companies (PMSCs), stronger and binding regulatory mechanisms are therefore needed at national, regional and international level. These should include mandatory reporting, independent third-party audits and strict sanctions for non-compliance to promote ethical behavior and accountability within the PMSC industry, especially in regions such as Africa that are most affected by these activities. As these companies operate across national borders, such mechanisms would also need to provide for extraterritorial enforcement.

Conclusion

In sum, the discourse on regulation reveals a fundamental problem: The current regulatory framework, which includes both international law and self-regulation, is Western-centric and does not do justice to the complexity of the burgeoning PMSC industry, necessitating a bold reassessment and overhaul of PMSC regulation. Our suggestion is simple. First, we look to the AU, its member states and the regional security organizations on the continent who must now rethink their approach to regulating private force by overcoming their resistance to repealing the 1977 Mercenary Convention to protect the interests of their people. Second, we are faced with a stark reality: the current failure to effectively regulate PMSCs is not due to a lack of potential regulatory frameworks, but to a widespread lack of political will, exacerbated by ideological divides, yet therein lies the opportunity for meaningful progress. With this in mind, and particularly given that African states have a proven preference for international conventions that have a universally binding legal status, we suggest a three-tiered approach. First, Africa should actively engage in the development of international norms on private force and negotiate initiatives such as the Montreux Document and the International Code of Conduct for Private Security Service Providers, which already provide the foundations for effective regulation to address the identified limitations and regulate the responsible use of private force on the continent by adapting these frameworks to regional challenges. Second, as part of the ongoing work of the Open-ended intergovernmental working group, African states should actively participate in elaborating the content of an international legal framework governing the activities of private military and security companies, without prejudging the nature of this framework, push for the recognition of criminal liability of individuals and corporations involved in PMSC activities, and expand the boundaries of attribution to hold states accountable for the actions of PMSCs operating under their direction or control. This requires clarifying and improving legal standards to capture the complex relationships between states and private forces. Finally, a comprehensive regulatory regime should be developed that provides for mandatory reporting, independent third-party audits and strict sanctions for non-compliance. This tier focuses on the creation of robust standards, effective reporting mechanisms, rigorous monitoring processes and the imposition of sanctions identified as limits to self-regulation to ensure accountability and ethical behavior within the PMSC industry. If successful, this approach, which also takes into account other socio-political factors that hinder effective regulation of the industry, could be promoted as an international convention, ratified by African member states in particular, to enable them to regulate the private security industry more effectively. We argue that this three-tiered approach could help strike a balance between protecting regional interests and ensuring effective regulation of private force.

Image: Russian mercenaries provide security for the president of the Central African Republic (Clement Di Roma/VOA, via Wikimedia Commons)