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Regulating the Private Military and Security Industry: A Quest to Maintain State Control and Preserve Public Values

Abstract

Since the late 1980s, governments have increasingly relied on the services of private military and security companies (PMSCs) in attaining their defence and foreign-policy objectives. States with advanced armed forces (notably the US and UK but also many others) have seen the outsourcing of various support functions, such as logistics or communications, as a way of cutting costs. Conversely, states with weak militaries (for example, Croatia at the time of the break-up of Yugoslavia and Angola during the civil war) have used PMSCs to boost their actual war-fighting capabilities. More recently, international organizations and non-governmental organizations have also turned to PMSCs, largely to ensure the safety of their humanitarian operations in zones of conflict.

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1 See, e.g., Robert Young Pelton, Licensed to Kill: Hired Guns in the War on Terror (2006); Jeremy Scahill, Blackwater: The Rise of the World's Most Powerful Mercenary Army (2007); Stephen Armstrong, War plc: The Rise of the New Corporate Mercenary (2008).

2 See, e.g., The Lord of War (Andrew Niccol, dir., 2005) (a Ukrainian-American arms dealer, a character loosely based on a real person and played by Nicolas Cage, is seen running guns to the Middle East and Africa, and smuggling war matériel out of the ruins of the Soviet Union); Blood Diamond (Edward Zwick, dir. 2006) (showing a mercenary-turned-diamond smuggler, played by Leonardo DiCaprio, embroiled in the Sierra Leone Civil War); War Inc (Joshua Seftel, dir., 2008) (a political satire that tells a story – itself too outlandish to narrate – set in in Turaqistan, a fictitious Central Asian a country occupied by Tamerlane, an American private corporation which is led by a former US vice president); The Whistleblower (Larysa Kondracki, dir., 2011) (starring Rachel Weisz, tells the story of Kathryn Bolkovac, an American UN CIVPOL officer who unearths a PMSC-led human trafficking and sexual slavery ring in Bosnia during the Yugoslav War).

3 BBC News, ‘Former Blackwater firm renamed again’, 12 December 2011, available online at www.bbc.co.uk/news/world-us-canada-16149971.

4 P. W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (2003).

5 See, e.g., Deborah D. Avant, The Market for Force: The Consequences of Privatizing Security (2005); Christopher Kinsey, Corporate Soldiers and International Security: The Rise of Private Military Companies (2006); Elke Krahmann, States, Citizens and the Privatisation of Security (2010); Kateri Carmola, Private Security Contractors and New Wars: Risk, Law, and Ethics (2010).

6 See, e.g., ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report to the 31st International Conference of the Red Cross and the Red Crescent, Doc. No. 31IC/11/5.1.2 (October 2011).

7 See, in particular, Simon Chesterman and Chia Lehnardt (eds.), From Mercenaries to Market: The Rise and Regulation of Private Military Contractors (2007); Francesco Francioni and Natalino Ronzitti (eds.), War by Contract: Human Rights, Humanitarian Law, and Private Contractors (2011); Christine Bakker and Mirko Sossai (eds.), Multilevel Regulation of Military and Security Contractors: The Interplay between International, European and Domestic Norms (2012).

8 But see Paul R. Verkuil, Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What We Can Do about It (2007); Benedict Sheehy et al., Legal Control of the Private Military Corporation (2008); Katja Creutz, Transnational Privatised Security and the International Protection of Human Rights (2006).

9 See, e.g., Tonkin, State Control, at 17–23.

10 For a useful overview, see Richemond-Barak Daphné, ‘Regulating War: A Taxonomy in Global Administrative Law’ (2011) 22 EJIL 1027.

11 The Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict, 17 September 2008, available online at www.eda.admin.ch/psc.

12 The International Code of Conduct for Private Security Service Providers, 9 November 2010, available online at www.icoc-psp.org/About_ICoC.html.

13 Draft Charter of the Oversight Mechanism for the International Code of Conduct for Private Security Service Providers, 16 January 2012, available online at www.icoc-psp.org/Charter_Consultation.html.

14 Report of the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination, Human Rights Council, UN Doc. A/HRC/15/25 (2 July 2010), Annex: Draft of a possible Convention on Private Military and Security Companies (PMSCs) for consideration and action by the Human Rights Council, Article 4(3).

15 Ibid., Article 2(i).

16 HRC Res. 15/26 (1 October 2010) (in favour: Angola, Argentina, Bahrain, Bangladesh, Brazil, Burkina Faso, Cameroon, Chile, China, Cuba, Djibouti, Ecuador, Gabon, Ghana, Guatemala, Jordan, Kyrgyzstan, Libya, Malaysia, Mauritania, Mauritius, Mexico, Nigeria, Pakistan, Qatar, Russia, Saudi Arabia, Senegal, Thailand, Uganda, Uruguay, Zambia; against: Belgium, France, Hungary, Japan, Poland, South Korea, Moldova, Slovakia, Spain, Ukraine, UK, US; abstaining: Maldives, Norway, Switzerland).

17 See, explicitly, Dickinson, Outsourcing War and Peace, at 16.

18 Tonkin, State Control, at 173–87.

19 Dickinson, Outsourcing War and Peace, at 11.

20 See, in particular, ibid., at 12; Tonkin, State Control, at 134–6, 152–8, 188–200, 214–21.

21 See, e.g., the articles in (2006) 88(863) International Review of the Red Cross; Doswald-Beck Louise, ‘Private Military Companies under International Humanitarian Law’, in Chesterman Simon and Lehnardt Chia (eds.), From Mercenaries to Market: The Rise and Regulation of Private Military Contractors (2007), at 115–38.

22 See, e.g., Mancini Mariaet al., ‘Old Concepts and New Challenges: Are Private Contractors the Mercenaries of the Twenty-first Century?’, in Francioni Francesco and Ronzitti Natalino (eds.), War by Contract: Human Rights, Humanitarian Law, and Private Contractors (2011), at 321–40.

23 See, e.g., Schmitt Michael N., ‘Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees’ (2005) 5 Chicago JIL 511.

24 See, in particular, Hoppe Carsten, ‘Passing the Buck: State Responsibility for Private Military Companies’ (2008) 19 EJIL 989; Hoppe , ‘Private Conduct, Public Service? State Responsibility for Violations of International Humanitarian Law Committed by Individuals Providing Coercive Services under a Contract with a State’, in Matheson Michael J. and Momtaz Djamchid (eds.), Rules and Institutions of International Humanitarian Law Put to the Test of Recent Armed Conflicts (2010), at 411–83.

25 Tonkin, State Control, at 203–13.

26 Ibid., at 64–75.

27 Ibid., at viii.

28 Tonkin Hannah, ‘Common Article 1: Minimum Yardstick for Regulating Private Military and Security Companies’ (2009) 22 LJIL 779–99.

29 Kalshoven Frits, ‘The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit’ (1999) 2 YIHL 3.

30 Tonkin, State Control, at 191.

31 Ibid., at 170, 197, 227.

32 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US) [1986] ICJ Reports 14, para. 218.

33 Corfu Channel (UK v. Albania) [1949] ICJ Reports 4, at 22.

34 See International Covenant on Civil and Political Rights, UNGA Res 2200A (XXI) (16 December 1966), in force 23 March 1976, 999 UNTS 171 (‘ICCPR’), Article 2(1); Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, in force 3 September 1953, 213 UNTS 222 (‘ECHR’), Article 1; American Convention on Human Rights, San José, 22 November 1969, in force 18 July 1978, 1144 UNTS 123 (‘ACHR’), Article 1(1).

35 See particularly, Dickinson, Outsourcing War and Peace, at 44–9.

36 Ibid., at 44.

37 See, e.g., William A. Schabas, The Abolition of the Death Penalty in International Law (2002), Chapter 5.

38 Dickinson, Outsourcing War and Peace, at 45.

39 Nicaragua (Merits), para. 19.

40 Prosecutor v. Tadić, Case no. IT-94–1, ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995), para. 134 (‘customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife.’).

41 Dickinson, Outsourcing War and Peace, at 49–68.

42 Tonkin, State Control, at 88.

43 Dickinson, Outsourcing War and Peace, at 1–2.

44 Ibid., at 182.

45 Ibid., at 17, 20.

* Research Fellow, Asia Pacific Centre for Military Law, Melbourne Law School [].

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Leiden Journal of International Law
  • ISSN: 0922-1565
  • EISSN: 1478-9698
  • URL: /core/journals/leiden-journal-of-international-law
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