This paper will explore responsibilities that might arise under international law from the
privatisation of the military use of force.
The aim of the paper is threefold: first, it explores which responsibilities states
and international organizations incur under international law if they use the services of
Private Military Companies (PMCs), ie if they privatise the use of military force. Second, the paper will use this survey of responsibilities to address the question whether there are, at present,
substantial gaps in international law that need to be filled in order to deal adequately
with the outsourcing of military force. Third, the paper will then suggest how to deal
with such gaps.
The paper will be structured as follows: Part II introduces the private military industry. The focus here will be on a categorization of the industry and a description of its impact on the common understanding of warfare which assumes a state-monopoly on the use of force. An understanding of the different categories within the industry and the industry’s impact on warfare is essential for addressing the legal question of whether PMCs are sufficiently covered by the existing international laws. Part III deals with the responsibility of states arising from privatising the use of force; this part will first provide a brief categorization of states that might incur responsibility and then introduce, as a point of departure and mental guideline, the accepted rule of state responsibility, whereby a state incurs responsibility for the commission of international wrongful acts. For the evaluation of a state responsibilities, part III will then proceed to introduce states’ international obligations that are most likely to be violated in connection with the privatisation of the use of force.
Table of Contents
I. INTRODUCTION
II. THE PMC INDUSTRY
1. Introduction
2. Categorisation of the industry
(a) Military provider firms
(b) Military consulting firms
(c) Military support firms
3. The impact of the industry
(a) The quantitative impact
(b) The qualitative impact
4. Are PMCs and/or their employees mercenaries?
(a) PMCs and their employees are not effectively covered by existing international anti-mercenary laws
(b) PMCs differ significantly from traditional mercenaries
(c) Summary
III. STATE RESPONSIBILITY
1. General rules of state responsibility
2. Categorisation of states
3. Breach of international obligation
(a) Law on the recourse of force (jus ad bellum)
(i) The prohibition on the use of force
(ii) The principle of non-intervention
(b) Laws of neutrality
(c) International humanitarian law (jus in bello)
(i) Introduction
(ii) Obligations of the occupying power
(iii) Obligations in connection with prisoners of war
(iv) Obligations in connection with the principle of distinction
(d) Other obligations
(i) International humanitarian law
(ii) International human rights law
(ii) Arms restriction and arms embargos
(iii) Principle of permanent sovereignty over natural resources
(iv) Mercenary laws
4. Where PMC conduct is attributable to a state
(a) Introduction
(b) Article 4 DASR ‘state organ’
(c) Article 5 DASR ‘authorized by the law … to exercise governmental authority’
(d) Article 6 DASR ‘organ placed at the disposal of a State by another State’
(e) Article 8 DASR ‘instruction or direction and control’
(f) Conduct ultra vires
5. Where PMC conduct is not attributable to a state
(a) Introduction to the concept of due diligence
(b) Due diligence and international human rights law
(c) Due diligence and international humanitarian law
6. Preliminary summary
IV. INTERNATIONAL ORGANISATIONS’ RESPONSIBILITY
1. Introduction: international organisations and their present and potential future use of PMCs
2. Preliminary remarks on the responsibility of international organisations for the commission of international delicts
3. General rules of international organisation’s responsibility
4. Breach of international obligation
(a) The capacity to bear international obligations: are international organisations vested with objective legal personality?
(b) Conduct ultra vires the competences of the international organisation
(c) International humanitarian law
(i) The applicability ratione personae
(ii) Applicability ratione materiae in situations of armed conflict
5. Where the PMC conduct is attributable to the international organisation
6. Where the PMC conduct is not attributable to the international organisation
7. Preliminary summary
V. CONCLUSION
1. Responsibility of states
2. Responsibility of international organisations
Objectives & Themes
This research dissertation explores the legal responsibilities arising under international law from the privatization of the military use of force, focusing specifically on the obligations and accountability of states and international organizations when employing Private Military Companies (PMCs).
- The categorization and operational impact of the private military industry on modern warfare.
- The applicability of existing international law, including anti-mercenary treaties and customary law, to PMC activities.
- Criteria for the attribution of PMC conduct to states and international organizations under the law of international responsibility.
- The concept of "due diligence" as a basis for state responsibility for private conduct.
- Challenges regarding command and control in the context of outsourced military functions.
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The impact of the industry
Since the early 1990’s, the private military industry has been booming and this boom is likely to continue. PMCs are active in more than 110 states in Africa, Europe, the former Soviet Union, the Middle East and the Americas. It appears, however, that the number of Home States, ie states in which PMCs have their registered headquarters, is much more limited. Furthermore, it seems that the United States and the United Kingdom account for the bulk of the industry’s market. The industry has not only experienced a steady growth but also a beginning consolidation and integration into established conglomerates. The growing importance of the industry can be illustrated in quantitative and in qualitative terms.
(a) The quantitative impact
The following facts may serve to illustrate the quantitative impact: Between 1994 and 2002 alone, the United States Department of Defence (DoD) signed more than 3000 contracts with PMCs registered in the United States. The aggregate contract value was said to exceed US $300 billion and the annual revenues of the industry reportedly amount to US$ 100 billion. And all this before ‘the industry took full flight’ during the 2003 Iraq war and ensuing occupation. Even before the 2003 invasion into Iraq, the ratio of United States military personnel to private contractors was 10 to 1. By comparison, during the 1991 Gulf War, this ratio had been ‘only’ 100 to 1. However, the private supply of military services has ‘skyrocketed’ during the ongoing occupation of Iraq. Precise numbers are hard to obtain. Estimations of the personnel of PMCs in Iraq used to range between 15 000 and 20 000 and were predicted to rise to 30 000 after granting of sovereignty to the new Iraqi government which was still pending when this prediction was made. However, the actual numbers seem to be much higher. As per March 2006, ‘the Director of the Private Security Company Association of Iraq estimated that approximately 181 private security companies were working in Iraq with just over 48,000 employees.’
Summary of Chapters
I. INTRODUCTION: Outlines the research focus on the legal responsibilities arising from the privatization of military force.
II. THE PMC INDUSTRY: Provides a categorization of the industry and analyzes its quantitative and qualitative impact on contemporary warfare.
III. STATE RESPONSIBILITY: Examines the legal framework for state responsibility, focusing on attribution rules and the doctrine of due diligence.
IV. INTERNATIONAL ORGANISATIONS’ RESPONSIBILITY: Analyzes the unique legal challenges regarding the responsibility of international organizations for the use of PMCs.
V. CONCLUSION: Summarizes the key findings and addresses the legal gaps in the current international regime regarding privatized force.
Keywords
Private Military Companies, PMCs, International Law, State Responsibility, International Organizations, Due Diligence, Jus ad Bellum, Jus in Bello, Mercenaries, Attribution, Command and Control, International Humanitarian Law, Privatization of Force, Armed Conflict, Human Rights.
Frequently Asked Questions
What is the primary focus of this research paper?
The paper examines the international legal responsibilities of states and international organizations that arise from the privatization of the military use of force, particularly through the use of Private Military Companies (PMCs).
What are the central thematic areas of the study?
The work covers industry categorization, the applicability of current anti-mercenary and international laws, the criteria for conduct attribution, and the application of due diligence standards.
What is the core research question or objective?
The objective is threefold: to explore existing legal responsibilities for states and organizations using PMCs, to determine if there are substantial gaps in international law, and to suggest solutions for these gaps.
Which scientific methods are utilized in the work?
The dissertation employs a legal analysis method, evaluating international treaty law, customary international law, draft articles of the International Law Commission (ILC), and judicial precedents from international courts.
What core topics are discussed in the main body?
The main body addresses state responsibility rules, the distinction between private entities and state organs, the definition of mercenaries versus PMCs, and the responsibility regimes for international organizations.
Which keywords best characterize this work?
Key terms include State Responsibility, Private Military Companies, International Humanitarian Law, Due Diligence, Attribution, and Privatization of Force.
How does the author characterize the "tip-of-the-spear" typology?
The author uses this typology as a conceptual framework to categorize PMCs based on their proximity to the frontline, distinguishing between Military Provider Firms, Military Consultant Firms, and Military Support Firms.
What is the author's conclusion regarding the legal status of PMCs?
The author concludes that PMCs operate within a complex legal environment rather than a "legal vacuum," though the existing mercenary-specific treaties are largely ineffective because they were drafted for individuals, not modern corporate entities.
- Quote paper
- LL.M. Frank Heemann (Author), 2006, Privatising the military use of force, Munich, GRIN Verlag, https://www.grin.com/document/124464
