Private Security Companies and the Laws of War

Abstract

The use of contractors employed by private security companies (PSCs) has exploded in recent years, outpacing efforts to assess the consequences of increased reliance on PSCs for international humanitarian law (IHL). This matters both for the states that hire these companies and for the employees of PSCs on or near battlefields. This article examines the legal status of PSCs under the existing IHL framework, focusing on activities where PSC employees carry weapons and how the presence of PSCs in asymmetric conflicts increases the challenge of determining what actions are appropriate within the laws of war. In most cases, PSC employees cannot be accorded combatant status under IHL. However, the actions of private contractors may put their protection as civilians under IHL at risk, and this is particularly true in asymmetric conflicts. I argue that changing the status of PSCs on the battlefield under IHL to take into account the tasks they are performing is not the answer. Rather, bearing IHL in mind, states need to rethink the tasks that PSCs conduct on their behalf, even if this means reducing reliance on PSCs or limiting state military activities. Notably, the USA should re-evaluate its reliance on PSCs to conduct tasks in situations where PSC employees are likely to be pulled into hostilities.

War and peace

“…7 7 On robotic systems, see Sparrow (2007), Killmister (2008), Singer (2009) and Krishnan (2009a 2009b). On private military contractors, see Singer (2004), Gillard (2006) and de Nevers (2009). …”

Beyond the ‘RtoP’: Responsibility as doing, being and sharing

“…Many scholars problematize the responsibilities of actors involved in governance (Abrahamsen and Williams, 2009;de Nevers, 2009;Berndtsson and Stern, 2011;Berndtsson, 2012;Bulkeley and Schroeder, 2012;Dorusson and Gizelis, 2013). It is commonly argued that private actors have become part of the security sphere in such a way that they overlap and interlink with state practices, which may yield unwelcomed consequences.…”

In from the cold? Self-legitimating the market for private security

“…These include export licensing systems (Caparini 2007) and parts of international humanitarian law (Cameron 2009). Under what conditions the latter instrument can be applied to PMSCs is, however, subject to debate (Doswald-Beck 2007, De Nevers 2009. Authors have argued that some of the flaws regarding accountability stem not from the shortage of legal measures, but rather from the difficulties faced by regulators when trying to use or adapt these measures (Leander 2012), or from the lack of precision in these measures, meaning that they fail to encompass the whole spectrum of services that PMSCs offer (Isenberg 2004).…”