Leashing the Corporate Dogs of War: The Legal Implications of the Modern Private Military Company

Abstract

The modern private military company (PMC) is a company that provides martial services through a corporate legal framework, and as such is the contemporary heir to private force providers of the past. This paper challenges the idea that modern PMCs operate in an alleged legal ‘vacuum’, and instead shows that there is a wide array of potentially applicable instruments. This paper addresses this patchwork of law primarily through the lens of mercenarism, first through proscribing international instruments followed subsequently by utilizing South Africa and the United Kingdom as the poles of their domestic counterpart responses. The rights and obligations of PMCs and its employees are then considered in the context of International Humanitarian Law and Human Rights Law, and tentative steps are taken towards considering their liability for war crimes. An attempt is made to advocate for state responsibility of PMC actions to both control their operational excesses and encourage states to address the phenomenon in a unified fashion. At the same time, the paper acknowledges the fact that state responsibility is not the panacea as claimed by some commentators; an analysis of a case study involving the sale of the Indonesian military's services to private interest shows that the privatization of forces is more than simply about the form of its organizational structure. The paper concludes that the PMC activity should nevertheless be included within the state framework to utilize the strength of both International Humanitarian and Human Rights Law.