Privatizing War: Private Military and Security Companies Under Public International Law. By Lindsey Cameron and Vincent Chetail. Cambridge, New York: Cambridge University Press, 2013. Pp. xxxv, 720. Index. $150.
It is by now no surprise to learn that the use of private military and security companies (PMSCs) is a widespread phenomenon. Over the last two decades, such contractors have been deployed by governments in war zones and hot spots around the globe, and their numbers often surpass those of uniformed military personnel. (1) Nevertheless, the legal frameworks applicable to these contractors are still somewhat of a mystery. Although breathless accounts of contractors operating in law-free zones are hyperbolic, the uneven overlapping patchwork of domestic and international laws that regulate these contractors' behavior is riddled with holes and remains poorly understood.
In Privatizing War: Private Military and Security Companies Under Public International Law, Lindsey Cameron of the University of Geneva and Vincent Chetail of the Graduate Institute of International and Development Studies, Geneva, have done a heroic job of imposing some analytic order on this seeming legal chaos, at least with respect to public international law. Bringing great rigor, depth, and clarity to the task, the authors provide a systematic overview of the multiple bodies of public international law that govern the contractors themselves and the states and others that employ them. At more than seven hundred pages, the book is not an easy read, but it is breathtaking both in its scope and attention to detail and will surely serve as a lasting and essential resource for anyone working in the field of privatized foreign affairs.
Nevertheless, because the book is so focused on applying formal international law principles to contractors, it largely misses an opportunity to grapple with how such principles are most likely to be enforced in actual practice or to rethink how international law enforcement in general might operate in an era of privatization. The authors spend the vast bulk of this massive book parsing the international law rules to determine under what circumstances a court or tribunal might determine that a PMSC is violating international law, but they devote only scant attention to alternative modes of accountability that have a far greater chance of being effective in implementing the principles and values of international human rights and humanitarian law. Such alternative modes of accountability include mobilizing greater domestic contract law and compliance oversight, mandating changes to the internal organizational structure of PMSCs, and developing public/private governance bodies to regulate the industry. Yet, because these mechanisms are not a core part of the traditional public international law framework, they receive far too little focus or energy here. As a result, the volume is very useful in setting forth a variety of international rules that might be applied to PMSCs but far less successful in proposing creative approaches to how such norms are most likely to be enforced on the ground.
The authors have divided their book into five chapters, each of which addresses a core set of legal issues raised by the use of contractors: first, the limits that international law imposes on the right even to resort to PMSCs; second, the potential responsibility under international law of states that deploy contractors; third, the extent to which PMSCs are bound by international humanitarian law; fourth, the actual legal rules applicable to PMSCs and their personnel; and fifth, the implementation and enforcement issues arising from violations of international law by PMSCs. Each chapter carefully describes the international legal frameworks that might conceivably apply to the particular set of legal issues and then works through an analysis of each. Meticulously researched and comprehensive, the book provides a thorough, clear account of the relevant bodies of law. The authors also take pains to offer concrete examples of situations in which particular legal issues might arise. The overarching purpose of the book seems not to be to opine broadly on the relative merits and demerits of using contractors but rather to provide a useful and complete legal reference that is firmly grounded in existing legal doctrine. At the same time, the authors do not shy away from drawing legal conclusions when necessary.
Chapter 1 tackles the vexing problem of whether (and under what circumstances) international law prohibits the use of PMSCs, either by states, intergovernmental organizations, or others. The authors lay out the vast array of applicable bodies of public international law that might speak to this question: the jus ad bellum, the jus in bello, international human rights law, and the principle of good faith. The authors then proceed to assess each of these bodies of law, including each doctrine and subdoctrine as it might apply to contractors. The task, even for this chapter alone, is a daunting one, but the authors pull it off with great skill and care. Significantly, most prior efforts addressing this problem have focused primarily on the law of mercenaries, including the several conventions on this topic, (2) while paying less attention to other potentially relevant sources of international law. By casting a wider net, the authors bring a broader perspective that enables them to address the question far more comprehensively.
After surveying the legal landscape, Cameron and Chetail conclude that "there is no overarching rule, explicit or implicit, that prohibits recourse to PMSCs as a whole and in general" (p. 133). And they find no clear ban in the United Nations Charter or the jus ad bellum generally. As a consequence, the authors reach the provocative conclusion that not only states but the United Nations itself, as well as international humanitarian organizations, may legally use PMSCs. With respect to the United Nations, the authors reason, for example, that the Security Council has the authority to allow a state contributing to peace operations to send "properly trained" PMSCs in lieu of the state's own armed forces (p. 41). Moreover, the authors determine that the Security Council may have the authority to use PMSCs to conduct peace operations.
Cameron and Chetail's analysis should hardly be read, however, as a carte blanche for states and international organizations to hand over their operations to PMSCs without any limitation. For example, with respect to a Security Council delegation to a PMSC, the authors note that all the usual peacekeeping principles must be respected, including the requirements of host-state consent, impartiality, and use of force only in self-defense. And, of course, a PMSC-led peacekeeping operation might be seen as lacking legitimacy, making it unlikely that the Security Council would actually authorize such a broad delegation to PMSCs (p. 38). With regard to states, the authors emphasize that state governments may not outsource the capacity to determine whether force may be used. The authors also identify several additional limitations on the use of PMSCs, which they derive from the jus in bello and international human rights law, including prohibitions on the administration of prisoner-of-war and internment camps, the protection and treatment of property in occupied...