Online Discussion of Private Military Companies and International Law

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One of the purposes of this blog is to provide a forum for discussion of the scholarship that appears in the European Journal of International Law. From time to time, we will host  online exchanges which respond to, as well as provide informed commentary and exchanges on articles that appear in EJIL. This exchange of ideas sometimes occur in the print version of the Journal but this inevitably means delays in responses or a lack of an opportunity to have the repeated exchanges that would test ideas and flesh out views. We hope that such an interactive, yet informed and enlightening, conversation can take place on,  and, be enhanced by, this more interactive and quicker forum.

We begin this series by hosting an online discussion (see below)  of some of the articles appearing in the latest issue of the European Journal of International Law (see table of contents here). That issue includes a symposium on “Private Military Contractors and International Law”.  Those papers are the product of a symposium held last June at the European University Institute in Florence as part of a joint effort of the EJIL and the EU Framework Programme 7 project “Regulating Privatization of War: The Role of the EU in Assuring Compliance with International Humanitarian Law and Human Rights ” (for more on that project see http://www.priv-war.eu).  We will be continuing the discussion here over the coming days. In order to facilitate this online discussion of the articles, EJIL is providing free access on its website  to most of the articles in the current issue.

There has been a remarkable growth of private military and security companies (PMSC) over the last decade or so. These companies have provided a range of services, such as combat services (eg Sandline in Papua New Guinea, or Executive Outcomes in Sierra Leone), military training and advice, logistics and support, maintenance of equipment as well as providing intelligence. It is stated that for most of the period of the occupation of Iraq and beyond, PMSC contractors were, as a group, the second largest force in the country,i.e second only to US forces and greater in number than the forces of any other coalition member. As Professor Francesco Francioni states in his Introduction to this symposium (see here):

the privatization of military and security services entails a variety of important consequences. At a political level, the  reliance on private contractors rather than on soldiers diminishes the effectiveness of domestic mechanisms of democratic control over armed forces, as required in all  constitutional democracies. It offers the possibility of circumventing the requirement of parliamentary authorization for specific missions and services, or of going  beyond limits on the number of troops to be deployed abroad or allowed to serve in a theatre of military operations. From a legal point of view, the question arises as to what is the status of these new actors in international law and more particularly in the context of the international law of armed confl icts. Are they to be considered mercenaries, and under what circumstances? Or are they part of the armed forces? When do their military services amount to a direct participation in hostilities? Is their conduct subject to the rules of international humanitarian law? And if they are not to be assimilated into the armed forces, are they still bound by basic norms of  international human rights and humanitarian law that protect life, integrity and property? And when private military companies commit abuses in the course of their conduct, what jurisdictional opportunities are available in order to provide civil remedies to victims and/or criminal prosecution of possible offences? Attempting to address these questions brings us to a grey area of the law, both international and domestic.  

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The articles collected in this issue of the EJIL constitute an attempt at clarifying the role of international law and European Union law in enhancing legal accountability and remedies for violations of human rights and humanitarian law committed by private military contractors.

The format of this online discussion will be that the authors of the articles will post introductions explaining what they set out to do in their article and summarising their arguments. Readers are, of course, invited (encouraged) to read the full text of the article on the EJIL site. Invited Commentators will post up responses to the articles.

Our readers are invited to get involved in this discussion by providing their own comments, thoughts and responses using the comments facility.

We commence with a discussion of Carsten Hoppe’s article: “Passing the Buck: State Responsibility for Private Military Companies”.

Next week we will be discussing Professor Simon Chesterman’s article: “‘We Can’t Spy . . . If We Can’t Buy!’: The Privatization of Intelligence and the Limits of Outsourcing ‘Inherently Governmental Functions'”.