Civilians or Soldiers? Why the Law of Armed Conflict Should Treat Private Military Contractors as Soldiers
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2017
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Haverford College. Department of Political Science
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Award
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eng
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Tri-College users only
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Abstract
Since the close of the Cold War, private military and security contractors (PMSCs) have occupied a place on the international stage. Although they have been operational for decades, with PMSCs’ proliferation during the Iraq War in 2001 and the documentation of their subsequent, notable violations of international law, the need to install an international regulatory regime overseeing their use has never been more vital. While state militaries’ personnel are strictly regulated, protected, and held accountable under existing rules governing the distinction between combatants, non-combatants, and civilians, no ad hoc framework of equal clarity has been definitively applied to PMSCs. Categorizing the roles of PMSC personnel within and surrounding periods of armed conflict is necessary if the international community hopes to exercise the protections enshrined in humanitarian law. Despite this pressing demand, progress has been relatively slow, albeit headed in the right direction. In assessing the progress towards a successful regulatory framework for PMSCs, this paper will provide an overview of pertinent international law on the subject and analysis of several suggestions or attempts to close what is often termed the “regulatory gap.” Three competing schools of thought will be considered. One seeks to extend mercenarism’s definition to cover PMSCs, prohibiting their use. A second hopes to apply the existing humanitarian law standards to PMSCs in retroactive fashion. The third would prefer to approach PMSCs’ involvement in military campaigns anew and develop innovative law in light of the complications they bring to the fore. In the face of indicators suggesting that PMSCs are here to stay, this paper argues that the latter school is the more worthy pursuit, and provides a novel suggestion for legal incorporation, that is, applying the same legal standards to PMSC personnel that apply to the hiring states’ militaries. In so doing, clear distinctions will be drawn between combatants and non-combatants, and the protections included in international humanitarian law will be respected.