Have Your Cake and Eat it Too: A Proposal for a Layered Approach to Regulating Private Military Companies

Abstract

Private Military Companies (PMCs) can be useful and arguably provide excellent service while offering swift and needed aid to embattled regions. In addition, they appear to do so at lower economic and political cost to the country or countries that choose to employ them. Still, recent events also demonstrate that the rush to employ PMCs has overlooked several issues regarding how PMCs operate and forces the question of how does one ensure that PMCs are accountable for their actions. Indeed, as recent events in Abu Ghraib and Bosnia demonstrate, PMCs and their personnel often go unpunished for their violations of the law. In response, some have sought to ban PMCs while others wish to categorize and license them on either an international or state basis.

This article argues that the market makers such as the U.S. government can use their market strength to force the industry to adhere to human rights and international laws and agree to U.S. jurisdiction over common crimes. In addition, a legislative layer will fill current holes preventing Congressional oversight of PMCs, create protection for whistleblowers, and allow for a private right of action if the government fails to prosecute PMCs that violate the law. This article concludes that such a layered approach to regulation will allow PMCs to retain their effectiveness, curtail their transgressions, and ensure that when violations occur those responsible are held accountable.

Keywords: contract, private military, legislation, Abu Grahib, mercenary, regulation, international law, privatization, torture