Political recommendations given by the Amnesty International[63] to investigate fully and in a timely manner all cases of shootings and killings and other brutal violations and bring perpetrators to justice without delay, to explicitly include human rights protections and standards in PMSCs contracts, to ensure that adequate laws are in place to address abuses, to create vetting systems are very useful. The ideas advanced in various forums to develop a code of PMSCs good behavior, to introduce modern harmonized legislation on PMSCs, to adopt a model law on PMSCs, to agree on a common international regulatory framework and to create national supervisory bodies are very important as well. But these proposals have the same shortcomings. They are too "modest". Their aim is to improve the situation condemned by everybody a little bit here and a little bit there. They do not question the outsourcing of state functions in such a delicate and vital sphere as external and internal security. The heaven they intend to create is a civilized global market of defense, military and security services. It endangers in no way the role, position and growing power of PMSCs in modern word. It does not challenge the myth of their utmost usefulness for society. It is just what PMSCs want. It is just what they pay money for to the same forums where the problems generated by them are discussed.
There is a profound gap between the conclusion that PMSCs activities are backfiring and could be detrimental to society and its core values and the feeble proposals for keeping PMSCs in check. Many in the expert community believe that it is too late to do anything radical. PMSCs have become mighty. Their business is too lucrative. Major countries are interested in their services. That is why only palliative measures may win support and have a chance to be implemented. This way of reasoning is well illustrated, e.g. by Wisconsin International Law Society (WILS) Model Law Project. A preliminary report, drawn by the Project team, was presented for the discussion held in Moscow on October 16 18, 2008, by the United Nations Legal and Regional Consultations in the format of the East Europe Group and Central Asia Region "Activities of Private military and Security Companies: Regulation and Oversight". In the descriptive part of the report explaining the approach and methodology chosen by the Project team it is rightly stated: "PMSCs are capable, by virtue of size, might, resources, lack of oversight, corruption, recklessness, and negligence, of posing a much greater danger to human rights and State sovereignty than could any individual mercenary". It is reaffirmed: "These "Armies of Fortune" have replaced the traditional "Soldier of Fortune""[64] But immediately after that it is noted that, from a practical point of view, it would be impossible to treat PMSCs like individual mercenaries and to apply to them the same kind of legal regime either at the national, or at the international levels. Then, a suggestion is made not even to try to forbid the unlawful and dangerous activities the same way as the International Convention against the Recruitment, Use, Financing and Training of Mercenaries does and to proceed further trying to civilize PMSCs. The Project team contends "that the majority of the current data suggests that a mechanism for regulating Private Military and Security Companies would be more effective in covering a number of services provided by PMSC and banning functions which should not be performed by such companies because they are inherently governmental".
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Partially, the same way of reasoning is embraced by the authors of the Draft Moscow convention described above. In the preamble of the Convention they suggest that PMSCs should be considered merely like a new form of waging mercenaries activities. They propose the following wording: "Worried and concerned over the threat which mercenary activities pose for peace and security; expressing concern at the new forms of mercenarism and affirming the seemingly continued recruitment of the former military and police officers by private military and security companies to work as "guards" in the areas of armed conflict; convinced that notwithstanding the ways of using mercenaries or carrying out any other activities related to mercenaries or the forms such activities take to seem legitimate, they pose a threat to peace, security and self-determination of peoples and hamper the exercise of all human rights by the people; determined to take all the necessary measures to stop the impunity of criminals; have agreed as follows"[65]. But the scope of the proposed international treaty is limited. It may be concluded from the wording of Article 13 of the Draft, confining the states obligations to adopt "special legislative regulation" to secondary issues. It says: "All States Parties shall take such measures within their domestic legislative systems as may be necessary to legally acknowledge the provision of military services, security services, export/import of military and security service as special activities which do not fall only under the scope of common law and which demand special (separate) legal regulation"[66]. The wording of Article 21 on the criminalization of offences in the sphere of military and security services corroborates this impression. It stipulates in paragraph 2: "Each State party shall take such legislative and other measures as may be necessary to acknowledge as a penal action the export and import of military and security services without appropriate licenses (authorizations)"[67].
The logic of condemning concrete types of activities and then acknowledging their usefulness, legitimizing them, seems rather strange and too "diplomatic" and advantageous for PMSCs. What we really need in order to solve the problems, created by reliance on PMSCs and their proliferation is to be consistent.
In the first place, we need to agree that there is no other way out of this dangerous development than to launch a campaign of reprivatization of basic defense, military and security services. The campaign must consist of six interconnected elements. Firstly, a ban should be imposed on providing most perilous private defense, military, protection and security services, including those related to the massive use of force and direct involvement in military and pacification operations. Recently, a study of the issue was carried out. It could turn out to be very appropriate[68]. Secondly, the activities performed by PMSCs at the request of state institutions should be treated as state activities and should entail state responsibility. Thirdly, any kind of abuses committed by PMSCs and their personnel acting under a contract with state authorities must be prosecuted as if committed by state officials. PMSCs contractors and PMSCs themselves providing defense, military and security services, if involved in different types of abuses and wrongdoings, should be tried and sentenced the same way as the state officials and their superiors are. Fourthly, it is necessary to adapt the Convention on Mercenaries to the radically changing international context. The definition of the person involved in mercenary activities is to be changed to make it simpler and workable. The definition must be expressly made applicable to PMSCs. The activities and acts considered as a violation of international law requirements and attributed to mercenaries should be forbidden for PMSCs as well. Fifthly, the international arms control regime may be enlarged to comprise a special chapter on the export/import of defense, military and security services. Sixthly, all states should introduce legislation criminalizing the banned activities and providing for the reprivatization of former state defense, military and security services.
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In the second place, we need to make it quite clear to all players in the defense, military and security services market that from now on the states will not support the proliferation of PMSCs and their activities and that in the future the states will curtail the market, giving up practices of relying on outsourcing of basic governmental functions. It is fair and in compliance with the certainty of law traditions. It will help all players concerned to proceed forward with strategic planning.
In the third place, a multilevel international mechanism for controlling, supervising and regulating PMSCs activities should be agreed upon and established. Its main features must reflect the ideology of reprivatization of vital state functions in the sphere of external and internal security. On the one hand, it should provide for efficient monitoring of the compliance of the states and PMSCs with the bans and obligations described above. On the other hand, it should establish a regulatory framework for legitimate activities of providing private defense, military and security services and for the state cooperation to make it viable and efficient. The best way to achieve that could be a comprehensive international convention, comprising substantive rules, procedures and mechanisms encompassing all or most of the ideas, proposals and recommendations contained in the present article.
But let us be realistic. It will take too much time to agree on such a convention. It is high time to take rapid actions. That is why it would be better to start with establishing a powerful UN Universal Agency on PMSCs with all-embracing, large and loose competencies. The Agency could be instructed to elaborate its rules of procedure and adopt as quickly as possible a necessary regulatory framework. To launch such a UN Universal Agency, it will do to agree on the guiding principles to be later developed by the Agency itself.
The members of the Agency will be under the obligation to stick to the guiding principles, to sign and implement future binding legal instruments produced by the Agency, to adopt national regulatory harmonized framework and to create their national agencies on PMSCs, empowering them to efficiently put into practice national and international legislation.
The UN Working Group on mercenaries has made a crucial step this year when it decided that we need to budge from perceiving PMSCs "as part of the regular "business as usual" exports under commercial regulations towards perceiving them as highly specific field of exports and services requiring supervision and constant oversight on behalf of the national Governments, civil society and international community, led by the United Nations" (Doc. A/63/325, paragraph 85). But this is just a first step in the right direction.
There is a lot of work ahead of us. Let us move from words to deeds.
