Law’s Impunity: Responsibility and the Modern Private Military Company

402 Pages·2015·3.485 MB·English

by  Hin-Yan Liu

Law’s Impunity
Responsibility and the
Modern Private Military Company
S T U D I E S I N I N T E R N A T I O N A L L A W
Hin-Yan Liu

LAW ’ S IMPUNITY
When faced with those who act with impunity, we seek the protection of
law. We rely upon the legal system for justice, from international human
rights law that establishes common standards of protection, to interna-
tional criminal law that spearheads efforts to end impunity for the most
heinous atrocities. While legal processes are perceived to combat impu-
nity, and despite the ready availability of the law, accountability often
remains elusive. What if the law itself enables impunity?
Law’ s Impunity asks this question in the context of the modern Private
Military Company (PMC), examining the relationship between law and
the concepts of responsibility and impunity. This book proposes that ordi-
nary legal processes do not neutralise, but rather legalise impunity. This
radical idea is applied to the abysmal record of human rights violations
perpetrated by the modern PMC and the shocking absence of account-
ability. This book demonstrates how the law organises, rather than over-
comes, impunity by detailing how the modern PMC exploits ordinary
legal processes to systematically exclude itself from legal responsibility.
Thus, Law ’ s Impunity offers an alternative to conventional thinking about
the law, providing an innovative approach to assess and refi ne the rigour
of legal processes in the ongoing quest to end impunity.
Volume 56 in the series Studies in International Law
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For the complete list of titles in this series, see ‘ Studies in International
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Law ’ s Impunity
Responsibility and the Modern
Private Military Company
Hin-Yan Liu
OXFORD AND PORTLAND, OREGON
2015
Published in the United Kingdom by Hart Publishing Ltd
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© Hin-Yan Liu 2015
Hin-Yan Liu have asserted his right under the Copyright, Designs and Patents Act 1988, to
be identifi ed as the author of this work.
Hart Publishing is an imprint of Bloomsbury Publishing plc.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
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of Hart Publishing, or as expressly permitted by law or under the terms agreed
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addressed to Hart Publishing Ltd at the address above.
British Library Cataloguing in Publication Data
Data Available
ISBN: 978-1-84946-516-8
ISBN (ePDF): 978-1-78225-963-3
To my wife, Agnieszka, with love and gratitude

Preface
It has become clich é to open a commentary addressing the modern Private
Military Company (PMC) with the now infamous Blackwater incident at
Nisour Square, but this book did in fact grow as a reaction to that atrocity.
Between the media headlines and ensuing public scandal there simmered
troublesome, yet nebulous, allegations of impunity in the aftermath of
what was single bloodiest incident involving American PMCs in Iraq. It
was this incident that ignited my own outrage and was to become the
driving force behind this project. As the media limelight soon dimmed,
many commentators turned their attention towards other aspects of the
PMC phenomenon: the status of military contractors under international
law; the relationship between the PMC contractor and the disparaged
traditional mercenary; the legitimacy of privatising, commodifying and
outsourcing military services, especially where these are the source of
material profi t; in addition to the overarching questions concerning the
role and function of the State in an era where its monopoly on the legiti-
mate use of force appears to be under assault.
The private military industry was, and continues to be, an area of intrigue
for a cadre of academics, journalists and activists who produce a deluge
of books, articles and reports expounding on the various challenges posed
by the modern PMC. Yet, the core allegations of impunity for private mili-
tary atrocities continue, and somewhat paradoxically considering their
gravity, receive little more than superfi cial attention. In particular, where
the PMC excites legal controversy, or at least reveals ambiguity within the
underlying law, the general approach has been to put the matter fi rmly to
rest by pointing to the potential applicability of existing law to cover the
situation in question. This was unfortunate because this potential appli-
cability in theory never translated into the law being applied in practice:
it may even be that this approach was pernicious, insofar as it veiled the
initial controversy with the appearance of resolution.
Faith in the legal system to address and remedy the allegations of impu-
nity levelled at the PMC continued unwavering in spite of the absence of
supporting evidence, and even in spite of mounting evidence to the con-
trary. It became increasingly clear that the law, despite the appearance of
being able to regulate the activities of the PMC, was not being deployed to
this end. This suggested either that the law was incapable of acting in such
a manner, or that it was complicit in continuing the impunity enjoyed by
the PMC. Either way, it was clear that a fundamentally different approach
to the issues was necessary.
viii Preface
At a superfi cial level, it may be argued that the case is now closed even
in a literal sense. As I write this, a US District Court has recently handed
down convictions for four of the members of the Blackwater team respon-
sible for the Nisour Square massacre. This provides an obvious retort to
the central claim in this book that the law is not doing its job properly — it
may have taken a long time, but the legal processes did what they were
supposed to and held those responsible to account. It is a strange coinci-
dence that this project took the same length of time as the U S v Paul Slough
saga took to unfurl, and some would argue that the project became obso-
lete at the moment of its completion as a result. The diffi culty with this
line of argumentation, however, is that the case is likely to be appealed
so the convictions may not be fi rm. As to the project itself, the realisation
that the law might have iatrogenic effects signifi cantly broadened both its
scope and application. While the focus remains very much upon the mod-
ern private military company as a way of developing the ideas and test-
ing various claims, the direction of the project shifted from being another
commentary on the contemporary privatisation of security and military
force towards building new tools with which to measure subtle effects. As
one of the examiners quipped during my viva, this is not so much a book
about the private military company —o ne would not turn to it seeking to
learn more about the phenomenon or to understand more about how it
operates. Rather, it has grown from those roots into a book that seeks to
raise questions about the ability and effi cacy of the law to regulate emerg-
ing practices. It aims to use the challenges raised by the private military
company as a platform from which to launch an enquiry about how the
law might in fact be the source of the very problems it is applied to redress.
The origin of this project was a dissertation written at University Col-
lege London and subsequently published in the J ournal of Confl ict and Secu-
rity Law. As is often the case, more questions were raised than answered
in this process, and these were convincing enough for Penny Green to
agree to supervise my PhD at the Law School of King ’s College London,
and I remain grateful to her for giving me such an excellent opportunity.
Dr Christopher Kinsey became my second supervisor after the internal
upgrade process and has made signifi cant contributions to the aspects
of the book tackling the private military company phenomenon and we
continue to work together on questions raised by mercenary activity. At
King ’ s, I was fortunate enough to fi nd myself in a friendly and engaged
doctoral community which helped to ease the solitude of thesis writing.
In particular, I am thankful for the friendship of Harry Nikolaidis, John
Charney, Henrique Carvalho, Christine Schwobel, Bryan Druzin, Fabiana
di Lorenzo, Wang Peng and Jingyi Peng. I would also like to thank my
examiners, Professors Nigel White and Mervyn Frost for their insightful
suggestions for developing the thesis into this monograph.