State or Non-state: Ay, There's the Rub

02/13/2012 02:41 pm ET | Updated Apr 15, 2012
  • David Isenberg Author, 'Shadow Force: Private Security Contractors in Iraq'

One of the oldest debates about the use of private military and security contractors operating around the world is that of their legal accountability. Despite all the pieces of national legislation that have been introduced in recent years the heart of the issue is that most PMSC exist to operate somewhere outside the country they are headquartered in. That makes then an international, not a national legal issue.

International law, however, generally uses states as its basic unit of accounting. PMSC are businesses, not states, and therein lies the contradiction. Or, as Shakespeare wrote in Hamlet, "Ay, there's the rub." Issues such as use of force are considered a public, not a private issue. In other words, what we have here is an "accountability gap."

To date, most solutions are exercises in tension, trying to fit square pegs (national legislation) into round holes (international legal framework). Is there a better way?

Perhaps there is, at least according to Lauren Groth, a law student at the University of California, Berkeley. Writing in the Winter 2012 issue of the Hastings International and Comparative Law Review she writes that international law no longer accurately reflects the nature of the realities it is meant to regulate, allowing those actors which now hold power in global politics, yet are unrecognized by international law, to escape accountability. Efforts to regulate these actors must address their growing importance within global society and accord them the legal status necessary to reflect such power.

In her article, "Transforming Accountability: A Proposal for Reconsidering How Human Rights Obligations Are Applied to Private Military Security Firms," she suggests a normative framework for the extension of human rights obligations to PMSCs. The framework can be established by expanding the existing rigid concepts of "legal personality" under international law to consider non-state actors, specifically PMSCs, when they are engaging in actions that are fundamentally the province of the state.

Simply put, in her view:

Unlike multinational corporations engaged primarily in commercial and trade activities, PMSCs perform a role that is, essentially, the outsourcing of a state function. These functions, which often have significant human rights implications, do not receive the same level of regulation or enforcement normally accorded to states, because of the PMSC's non-state status.

Here is where it starts to get interesting. Ms. Groth writes that while the application of binding human rights norms to PMSCs calls for a shift in the development of the current jurisprudence of international law it must also be grounded in the logical extension of existing legal doctrines. She does not seek to make PMSCs an exception to established law. Instead she wants them understood as subjects upon which international law bestows an obligation.

How to do this? It is widely agreed that in order to be subject to international law, an entity must have what is termed international "legal personality." Having such a status indicates that one is "capable of possessing international rights and duties and endowed with the capacity to take certain types of actions on the international plane."

Understanding international legal personality as more fluid, Ms. Groth suggests a limited form of legal personality can then be applied to PMSCs as non-state actors by virtue of their status as quasi-governmental. She writes:

The PMSC, as a private actor closely affiliated to the state, can take on a limited international legal personality based on this relationship. This does not mean that all PMSCs are inherently bestowed with international legal personality. Rather, building on the justifications underlying this extension, a PMSC would need to meet a test for the determination of state affiliation.

The criterion for the test could take various forms. It could be the "Inherently Governmental" one where if PMSCs likely engage in actions that are essentially state functions they would be judged to have legal personality. Similar recognition would occur if a PMSC was judged to be performing core functions," "mission essential function," and "critical government functions, which are all considered similar to inherently governmental."

Ms.Groth concludes:

This theoretical framework, although perhaps controversial, is grounded in concepts well rooted in international law and international relations. It draws upon recent scholarly precedents to suggest that the identification of legal personality sufficient to establish liability can be extended, in limited circumstances, to non-governmental entities such as PMSCs. It further proposes that the potential for such liability is predicated on the nature of the PMSC's actions, and their degree of relation to governmental functions - under an "inherently governmental" or "core functions" approach. Finally, it recognizes that any plausible framework must impose necessary boundaries on the extent of liability, including delineating the nature of the rights to be protected and the scope of a PMSC's potential obligations in relation to those rights. The framework proposed here maintains that those rights to be protected must be identified through a careful balancing of the established rights of individuals and the functions of military necessity that a PMSC undertakes, and that the obligation to protect such rights must extend to all those "subjected" to the coercive power of the PMSC and its actions.