Rethinking Private Warfare

Abstract

Waging war for money has been frowned upon since the Peace of Westphalia and the rise of the modern nation-state. The stigma associated with private warfare translates, in legal terms, into a prohibition on mercenary activity and denying mercenaries the protection afforded to regular combatants (in particular, prisoner of war status). Noting the apparent similarities between mercenaries and private military contractors, some have sought to extend to the latter the restrictive regime applicable to the former. But the resemblance between these two types of actors should not imply that private warfare, in its modern form, is condemnable outright. This Article argues that an inclusive approach to military outsourcing—drawing upon historical, legal and moral perspectives—is necessary to contend with the challenges raised by the growth of the private military industry. I examine the connection between history (highlighting the shared roots of private military contractors and mercenaries), morality (through which the stigma against private warfare developed), and law (the formal vehicle of such stigma), to show that private warfare deserves a more nuanced and pragmatic treatment under international law.