Who is Responsible? The Use of PMCs in Armed Conflict and International Law

Abstract

The employment of private military companies (PMCs) in armed conflicts — often called the ‘modern mercenarism’ — enjoys a relatively negative image because of the legally ambiguous theaters of war in which they operate, the lack of transparency and the large number of open legal questions surrounding their use. Additionally, scandals such as the rapes committed by DynCorp contractors in Bosnia (Singer 2004e: 525) and the involvement of CACI and Titan members in the torture and inhuman interrogation techniques in the Abu Ghraib prison in Iraq shocked the world (Makki 2004: 22ff; Der Spiegel, 3 May 2004: 132ff.). Scholars therefore often lament about the presence of a “gap in international law” (Stinnet 2005: 211) or a “legal vacuum” (Singer 2004e: 521, 532). Should states have the possibility to outsource their ‘dirty jobs’, thus avoiding criticism at home and abroad, while distancing themselves not only from the body bags, but also from the actions undertaken? (Walker/Whyte 2005: 689) Does the privatization of military and security functions imply an outsourcing not only of these tasks, but also of the international responsibilities arising from International Humanitarian Law (IHL) by allowing states to “hid [e] behind the corporate veil”? (Coleman 2004: 1493) Due to the increasing deployment of PMCs in the security sector the need for clear legal norms increases. The questions about legal responsibility and accountability are the most pressing ones: Who can be held responsible under international law for human rights abuses or war crimes committed by PMCs: the contracting state, the PMC, or the individual contractor?