Regulating Private Military Companies: Conflicts of Law, History and Governance, 1st Edition (Hardback) book cover

Regulating Private Military Companies

Conflicts of Law, History and Governance, 1st Edition

By Katerina Galai

Routledge

200 pages

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Hardback: 9781138610057
pub: 2019-04-26
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Description

This work examines the ability of existing and evolving PMC regulation to adequately control private force and challenges the capacity of international law to deliver accountability in the event of PMC misconduct.From medieval to early modern history, private soldiers dominated the military realm and were fundamental to the waging of wars until the rise of a national citizen army. Today, private military companies (PMCs) are again a significant force, performing various security, logistics, and strategy functions across the world. Unlike mercenaries or any other form of irregular force, PMCs acquired a corporate legal personality, a legitimising status that alters the governance model of today. Drawing on historical examples of different forms of governance, the relationship between neoliberal states and private military companies is conceptualised here as a form of a ‘shared governance.’ It reflects states’ reliance on PMCs relinquishing a degree of their power and transferring certain functions to the private sector. As non-state actors grow in authority, wielding power and making claims to legitimacy through self-regulation, other sources of law also become imaginable and relevant to enact regulation and invoke responsibility.

Table of Contents

Table of Contents

Introduction

Conceptual framework

Power and Legitimacy

Identifying forms of governance

Chapter Outline

Chapter 1: Private Military Companies, a contemporary problem?

Mercenaries, Contractors, Civilians

Definition of Private Military Companies

Challenges of the Definitions

PMC Classification

Regulation and accountability: who should be regulated and to what end?

Regulation

The Purpose of Regulation

Accountability

Conclusion

Chapter 2: Private forces in different forms of governance: historical typologies

Feudalism and Absolutism

Professional Armies

Italian City-Republics and Civilian Militia

Civilian Militia as a Norm Against Mercenaries

The French Revolution and the Nation-State

La Levée en Masse

The British Empire and the East India Company

The East India Company and its Accession to Power

The Army of the East India Company

Was the Army of the EIC Private or Public?

Normative Approaches to Mercenaries

Conclusion

Chapter 3: Mercenaries of the 20th Century and State Responsibility

The Rise of International Legal Norms

Non-Intervention as an International Legal Norm

Decolonisation and Proxy Warfare

Decline of Non-Interventionism

Mercenary Forces in the Congo and Angola

International Legal Response to the Use of Irregular Forces

Anti-Mercenary Norms

Codification of mercenaries by the OAU

British Mercenaries in Angola and the Diplock Report

A turning point: OAU Appendix III and the Mercenary Convention

The Nicaragua Case

Defining Mercenaries and State Responsibility in the Nicaragua Case

Conclusion

Chapter 4: New Wars, Neoliberalism, and the Rise of PMCs

New Wars and the Rise of PMCs

Neoliberalism

Accountability and State Control

Governance and Governmentality

Conclusion

Chapter 5: Legal mechanisms and challenges in invoking individual and state responsibility for PMCs

Between civilians and combatants: responsibility and impunity of private contractors

Legitimacy of private contractors

Status of a non-combatant

Proximity to conflict

International dimension

State as a client and the main actor in international law

IHL and state responsibility for PMCs: Gaps in the ILC Articles on Attribution of Conduct

States as PMC Clients and Limitations of Contract Law

Institutional Responsibility

State-Centric Regulation Concerning PMCs

The Montreux Document

The Draft Convention

Conclusion

Chapter 6: The role of international regulation and the growing power and legitimacy of companies

The Human Rights Regime: UN Guiding Principles, UN Resolution 26/9, UN Draft Convention

UN Draft Convention

Industry-Focus Regulation: the ICoC, the Montreux Document and Other Industry Bodies

Corporation as a form of governance

Conclusion

Chapter 7: Limitations and opportunities arising from the corporate status of PMCs: domestic and transnational procedure for invoking corporate responsibility

Procedural Obstacles

Territorial Limitations & Examples of Domestic Jurisdiction on PMCs

Civil procedure in establishing corporate accountability in tort law

(Establishing) Corporate responsibility for international crimes

Conclusion

Chapter 8: Exploring the mechanisms of international criminal law to develop corporate accountability for PMCs

International criminal law and possible lineages of corporate responsibility

Limitations of international criminal legal procedure

Lessons from addressing international crimes through ICL and possible lineages of international criminal responsibility

Universal Jurisdiction and Piracy

War Crimes and Crimes Against Humanity

Considerations and opportunities for future regulation

Criminalising Mercenarism

Include Corporations (or at least PMCs) in the Jurisdiction of the Rome Statute

‘Downloading’ ICL to Domestic Legal Systems

Employing Transnational Law to Construct Corporate Criminal Responsibility

Conclusion

About the Author

Katerina Galai is a defence and security analyst at RAND Europe, a non-for-profit research institute, based in Cambridge, UK.

Subject Categories

BISAC Subject Codes/Headings:
LAW051000
LAW / International
POL010000
POLITICAL SCIENCE / History & Theory
POL011000
POLITICAL SCIENCE / International Relations / General
POL012000
POLITICAL SCIENCE / Political Freedom & Security / International Security
POL014000
POLITICAL SCIENCE / Political Freedom & Security / Law Enforcement
POL048000
POLITICAL SCIENCE / Intergovernmental Organizations
POL062000
POLITICAL SCIENCE / Geopolitics