Prohibition of PMCs

What do PMCs do that makes it reasonable or even necessary to prohibit them? Let’s examine how those companies function on the example of the imaginary weak state in Africa, the region where usage of PMCs is widespread. ^{^[10]} Ruler of the state has neither public support, nor the means to hold power using military forces (not directly opposing citizens, but shifting attention to some military issue), so the most obvious action is to gain either of them. Public support is risky, since it is never clear will there be enough resources to satisfy the unclear and underrepresented wills of citizens. Military assistance in contrast is available at any time, due to globalization and connected with it growing number of PMCs. In that case both ruler and citizens are getting profit out of it, because “new wars represent access to different forms of protection, legitimacy, and rights to wealth, which has to do with trans-border shadow trade”^{^[11]}. This puts our imaginary state in a vicious cycle: the shadow economy starts playing a significant role in the overall economy and dismisses the incentives from either side to create more sustainable institutions and develop the state in a long-term perspective. ^{^[12]}

But PMCs hindering democratic development of states is by far not the only concern. Legalizing PMCs means creating the market for a military force, this imposes some of the market features on their functioning. Companies exist in a competitive environment, making profit from armed conflicts, this obviously makes them more efficient and reliable, since competition enhances quality of the services provided. But at the same time “competition for market shares pushes PMCs to become lobbyists, security advisers and public-opinion-makers”^{^[13]}, which they weren’t initially supposed to be. This may cause some problems, for instance, PMCs can overstate the severity of the conflict, propose more invasive and harsh measures than state anticipated, contribute to the prolongation of the conflict, and hinder its early resolution, since the very fact of the existence of this conflict became the reason for hiring. ^{^[14]} Moreover, because of PMCs being driven by profits there could be negative implications not only for the state resorting to their usage; companies can cut expenses which would endanger the lives of company members or the local population. ^{^[15]}

Another problematic issue about PMCs’ legalization is their unclear legal status in the framework of the international humanitarian law, thus, making their rights and responsibilities uncertain^{^[16]}. On the level of international humanitarian law there are no treaties or laws referring directly to the PMCs. However, there are certain regulations which might be applicable in different cases. As for their legal status, there are debates of whether PMCs members should be treated as mercenaries, combatants or civilians. According to international humanitarian law, there are core differences between these three concepts. In order to be a mercenary, one should follow some particular rules, like being ’recruited locally or abroad in order to fight in an armed conflict’, ‘take a direct part in the hostilities’^{^[17]}, not a resident nor a citizen of a conflicting state, and others. In some countries mercenary activities are considered as criminal ones. However, being a mercenary does not violate the Geneva Convention or Protocols of international law. Next, being a combatant means to be ‘tied to membership in the armed forces of a party to a conflict or to membership of a militia or volunteer force that belongs to a party to the conflict and fulfils specific criteria’^{^[18]}. Combatants have a list of obligations including acting with accordance with the laws and customs of war, having clear command structure and others. Finally, civilians, compared to the two previous statuses, don't have a right to directly participate in military actions. However, despite this fact, employees of private military companies are considered to be civilians. In fact, none of these categories can be fully applied to PMCs employees. Thus, it might be very difficult to identify the status of PMCs in the legal framework.

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