Privatizing War Private Military and Security Companies under Public International Law

Author: Lindsey Cameron; Vincent Chetail
Publisher: Cambridge University Press
ISBN: 9781107032408
Published In: March 2013
Format: Hardback , 754 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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A growing number of states use private military and security companies (PMSCs) for a variety of tasks, which were traditionally fulfilled by soldiers. This book provides a comprehensive analysis of the law that applies to PMSCs active in situations of armed conflict, focusing on international humanitarian law. It examines the limits in international law on how states may use private actors, taking the debate beyond the question of whether PMSCs are mercenaries. The authors delve into issues such as how PMSCs are bound by humanitarian law, whether their staff are civilians or combatants, and how the use of force in self-defence relates to direct participation in hostilities, a key issue for an industry that operates by exploiting the right to use force in self-defence. Throughout, the authors identify how existing legal obligations, including under state and individual criminal responsibility should play a role in the regulation of the industry.

• Raises important and timely questions to ongoing debates on regulating the industry

• Explores the existing law and offers new insights

• Provides a detailed analysis on the key areas of international law from a unified perspective

Foreword Professor Marco Sassòli	ix
Acknowledgements	xvii
Table of cases	xix
Table of acronyms	xxxiii
Introduction	1
1 The limits on the right to resort to PMSCs	10
A The limits imposed by international law on the use of armed force – jus ad bellum	10
1 Does the UN Charter prohibit delegation to private companies of states’ right to use armed force in self-defence?	10
2 PMSCs in peace support operations	17
3 Humanitarian organizations and the use of PMSCs	53
4 The prohibition of privateering and the use of private military and security companies	56
5 The prohibition of mercenarism	66
6 Conclusion	80
B The limits imposed by the laws of war – jus in bello	80
1 Treaty-based limitations on the use of PMSCs	82
2 Implied limitations	91
3 Conclusion	113
C The limits imposed by IHRL	113
1 The legality of delegating law enforcement under IHRL	113
D Good faith	126
1 The principle of good faith in international law	127
2 Good faith and PMSCs	130
E Conclusion	133
2 The international responsibility of states and its relevance for PMSCs	134
A Attribution of acts of PMSCs under Article 4 ASR	136
1 A PMSC as a de jure state organ	136
2 The scope of state responsibility under Articles 4 and 7 ASR	158
B The attribution to states of acts of PMSCs under Article 5 ASR	165
1 A PMSC as an entity empowered by internal law	166
2 The elements of governmental authority	172
C The attribution of the conduct of PMSCs to states under Article 8 ASR	204
1 Instructions	205
2 Direction and control	209
3 The criterion of ‘instigation’	221
D Concluding remarks on the attribution of the activities of PMSCs to states	223
E The responsibility of states for activities of PMSCs due to a lack of due diligence	225
1 Preliminary considerations on due diligence	226
2 Sources of due diligence relevant for the activities of private military and security companies	228
3 Obligations arising from the requirement to exercise due diligence	251
4 Implications for contracting states of the duty to ensure respect for IHL and IHRL regarding PMSCs	262
5 Implications for territorial states to ensure respect of IHL and human rights	280
6 Implications for home states to ensure that human rights and humanitarian law are respected	282
F Conclusion	286
3 The legal means through which PMSCs are bound by IHL	288
A PMSCs as non-state actors	289
1 PMSCs (as companies) as a subject of international law	289
2 Beyond international personality: alternative avenues for binding PMSCs	305
B PMSCs as the sum of their individual employees	350
1 IHL: an inter-state law with individuals as addressees	351
2 The direct applicability of IHL to individuals	366
4 The legal rules applicable to PMSCs and their personnel	383
A Establishing the status of PMSC personnel under IHL	385
1 PMSCs and combatant or fighter status	386
2 PMSCs and other statuses under IHL	418
B The impact of civilian status on the rights and duties of PMSCs: direct participation in hostilities	431
1 Consequences for PMSCs of directly participating in hostilities	432
2 Concept, elements and time frame of direct participation in hostilities: what counts are specific acts	436
C The use of force by PMSC personnel in self-defence	455
1 The right to life does not entail an unqualified right to self-defence	457
2 Elements of self-defence from domestic criminal law, interpreted in the light of IHL	461
3 Scenarios on self-defence for a private armed guard of an occupation administration compound	484
D The rules applicable to PMSCs tasked with law enforcement in armed conflicts	489
1 Identifying the applicable rules	489
2 Law enforcement rules under IHL	492
3 Law enforcement and human rights law	495
4 Law enforcement situations in armed conflict and occupation	499
E Fleshing out the content of certain IHL obligations for civilians	524
1 Meeting the standards and conditions of internment and detention for POWs and civilians	524
2 Fundamental rights and freedoms	527
3 Recruitment	529
4 Providing aid	530
F. Conclusion	537
5 The implementation of responsibility arising from violations of international law by PMSCs	539
A Implementation of state responsibility	539
1 Implementation of state responsibility before international tribunals by other states	540
2 The review of implementation through treaty-body procedures	544
3 The legal actions of individuals against states	546
B The means by which states can regulate the conduct and define the legal responsibility of PMSCs	570
1 International regulation	571
2 National regulation	575
C Establishing international criminal responsibility	582
1 Corporate criminal responsibility	583
2 Individual criminal responsibility	597
3 Prosecuting individuals in national legal systems	623
4 Conclusion	626
D Establishing civil responsibility	627
1 Establishing civil responsibility of PMSCs and their personnel	631
2 Problems of jurisdiction	648
3 Conclusion	661
E Implementing PMSC responsibility through self-regulation	662
General Conclusion	672
Selected Bibliography	678
Index	708