The Civil-Military Interface in 21st Century Armed Conflict – Private Military Contractors and the Principle of Distinction
35 Pages Posted: 16 Aug 2011 Last revised: 10 Oct 2011
Date Written: August 14, 2011
Private military and security contractors have been the focus of international attention in recent years, largely due to their prominent role in the conflicts in Iraq and Afghanistan. Given the increased public scrutiny of private military and security contractors (PMSCs), there have been numerous academic articles, newspaper articles, books, and other public commentary, written on the phenomenon. A common theme underpinning nearly all these approaches is the question ‘how does one classify the contractor?’ Are they civilians, are they State agents, are they soldiers? For the law of armed conflict (or international humanitarian law (IHL) as it is also known), such classification is important because important consequences flow from such classification. The law of armed conflict outlines very specific rules regarding who may legitimately participate in armed conflict, and who may not. The law divides the population into two basic categories - combatants and civilians. Depending on one’s classification, specific rules regarding permissible conduct follow. Designation as a combatant brings with it immunity from the operation of certain domestic laws, provided the combatant obeys the international laws of armed conflict. Combatants may target other combatants, and be targeted themselves. Conversely, civilians are not to be made the subject of attack, nor may they take direct part in hostilities. This is known as ‘distinction’ – the principle that attempts to keep civilians safe from the effects of the conflict, and provides instruction to combatants regarding permissible targeting practices. The use of PMSCs complicates the application of the principle of distinction – are they civilians, combatants or mercenaries? Can they be targeted, and can they target other legitimate objects and objectives themselves? Are there laws that deal with PMSCs or do they exist in some legal grey-zone, leaving lawmakers and commentators scrambling to bring the law in line with reality? This paper will look at the issue of private military and security contractors under the law of armed conflict, and will look at recent attempts to better deal with PMSCs, assessing whether such recent attempts are adequate, inadequate or indeed necessary at all.
Keywords: International Humanitarian Law, International Armed Conflict, Private Military and Security Companies, Distinction, Targeting, Civilian Participation in Armed Conflict
JEL Classification: H57, K10, K30, K33
Suggested Citation: Suggested Citation