Accountability for Private Military and Security Contractors in the International Legal Regime

Abstract

The rapidly growing presence of private military and security contractors (PMSCs) in armed conflict and post-conflict situations in the last decade brought corresponding incidents of serious misconduct by PMSC personnel. The two most infamous events -- one involving the firm formerly known as Blackwater and the other involving Titan and CACI -- engendered scrutiny of available mechanisms for criminal and civil accountability of the individuals whose misconduct caused the harm. Along a parallel track, scholars and policymakers began examining the responsibility of states and international organizations for the harm that occurred. Both approaches have primarily focused on post-conduct accountability -- of the individuals who caused the harm, of the state in which the harm occurred, or of the state or organization that hired the PMSC whose personnel caused the harm. Less attention, however, has been paid to the notion of pre-conduct accountability for PMSCs and their personnel or to state responsibility for victims of the harm.

This article sets out a comprehensive approach for analyzing the international legal regime, and whether and to what extent that regime provides accountability for PMSCs and their personnel. First, it uses a broad understanding of “accountability for” PMSCs and their personnel, encompassing not only responsibility for harm caused by conduct, but legal responsibility for hiring, hosting, and monitoring these entities and their personnel (before any harm occurs), as well as responsibility to the victims of the harm. Second, I propose a practical construct of three phases based on PMSC operations -- Contracting, In-the-Field, and Post-Conduct -- with which to assess existing various bodies of international law, as well as recent international initiatives such as the Montreux Document and the UN Draft Convention on Private Military and Security Contractors. This three-phase construct derives from the nature of PMSC operations and their respective relationships to the states with which they necessarily interact, thus exposing weaknesses with a view to practice rather than law or policy in the abstract.

Keywords: private military and security contractors, Blackwater, accountability, international human rights law, international humanitarian law, international criminal law, Montreux Process, UN Draft Convention on Private Military and Security Contractors