The Oxford handbook of international law in armed conflict
Oxford : Oxford University Press, 2014
The arrival of large numbers of PMSC personnel on geostrategic key battlefields has quite literally placed them at the centre of contemporary discussions about the regulation of armed conflict. Their form, statutory duties to contractual clients and shareholders, and often their conduct raise difficult questions for international lawyers. Are PMSC personnel civilians, or combatants, or sometimes one and sometimes the other? Can they be targeted for attack? If they cannot effectively be distinguished from either civilians or combatants, how can opposing forces know whether it is lawful to attack them? And, perhaps centrally, who is ultimately responsible for their conduct before international law - especially if they are merely private actors, working for private clients? The persistence of these questions has led to numerous attempts in the last decade at both the nationals and international levels to clarify laws and policies around the regulation of PMSCs. These complexities coalesce around a number of recurring points of disputation, including the legitimacy of PMSCs’ presence on the battlefield, the protections PMSC personnel enjoy, and the privileges they benefit from. This chapter first explores these recurring themes, then examines whether ‘states are the answer’ to these regulatory questions. Highlighting the limits of state power - and desire - to regulate commercial actors on the battlefield, it moves on to explain why some commentators in fact see states as "the problem". In a final section, it explores whether and how international law might be coming to provide the primary rules of conduct which might serve as the basis for the development of non-traditional mechanisms for enforcing international law: through domestic and civil litigation, and through industry action.