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 idea of pre-conduct accountability for PMSCs and their personnel. A broad understanding of “accountability for” PMSCs and their personnel encompasses not only responsibility for harm caused by conduct, but responsibility for hiring, hosting, and monitoring these entities, as well as responsibility to the victims of the harm. This article provides a comprehensive approach for analyzing the existing international legal regime, and whether and to what extent the legal regime provides “accountability for” PMSCs and their personnel. It does so by proposing a practical construct of three phases based on PMSC operations—Contracting, In-the-Field, and Post-Conduct—with which to assess the various bodies of international law.