Chia Lehnardt

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This paper discusses the circumstances under which the misconduct of Private Military Companies (PMCs) might engage the responsibility of their state sponsors under international law. It is argued that the fear that PMCs might be used by Western governments to conduct “foreign policy by proxy” is only partially warranted: from an international law perspective, states cannot evade responsibility merely by hiring a private actor to carry out certain functions. The conduct of PMCs is, under certain circumstances, attributed to the state, making that state responsible for any violation of international law committed by PMC personnel. Even where no such attribution exists, the state might still be responsible for lack of due diligence to adequately regulate and control PMC conduct. Thus, claims of a “vacuum” in international law are overstated, although the growing significance of PMCs in conflict zones and changing warfare challenge a legal system premised on the assumption that states are the primary actors on the international plane. An inherent limit is the fact that factual power relationships between the PMC, the host state, and the exporting state remain unaddressed on the international level. Relying on the responsibility of states alone is thus a necessary but insufficient tool for addressing the problems accompanying the expanding role of PMCs.