The Potential of Soft Law
D. Is Established Law Adequate?
This leads to a number of conclusions on the adequacy of established law addressing private military contractors.
There is an inherent tendency in responses by policymakers, whether private or public, civil society and academia in particular to address new challenges by proposing new laws. If this process is left to uncritically develop itself, this will lead to an ever-growing body of public international law and municipal law, which may not necessarily improve the situation on the ground. The steering effect of legal rules does not only depend on their comprehensiveness but perhaps even more on their clarity.
So far, the law of armed conflict and in particular international humanitarian law has benefited from being much clearer than a lot of other areas of public international law. Such clarity has been decisive because – even though addressed to states (and – to a limited extent – to non-state parties to armed conflicts) – individuals, both civilians and members of the armed forces, were able to read, to understand and to apply bees and worms to the individual behaviour. Decision-making on the battlefield can be traced back to governmental entities, but it will always be linked to individuals who bear responsibility based on their function. Taking into account this beneficial clarity of the law of armed conflict and international humanitarian law, there is a need to critically assess to what extent there is a lack of clarity with regards to employing and overseeing the activities of private military contractors in situations of armed conflict. One of the problems outlined above is the notion of direct participation in hostilities. In this regard, indeed, there still is a need for clarification. However, the processes conducted so far in order to achieve such clarification have only been successful to a limited extent, as has been illustrated by reference to the interpretative guidance
101 Ibid., para. 32.
102 Ibid., para. 34.
adopted by the ICRC. The Montreux Document as well as the other soft law instruments referred to above may help to contribute a certain (limited) amount of clarity to the conduct of operations by private military contractors in situations of armed conflict, not alone based on the restatement of the law, but primarily on the good practice examples included in the second part of the Document. Thereby soft law can contribute to a purposeful interpretation of pertinent rules of international humanitarian law and of state responsibility.
The situation is much more difficult outside the scope of armed conflicts.
The application of international human rights law to and respect for international human rights law by private military contractors is a difficult effort. This is largely due to the fact that international human rights law is less detailed than international humanitarian law and is much more open to interpretation. Moreover, while it is not disputed that international human rights law is directly applicable to government actors; it is much more difficult to bridge the gap between governmental addressees and private contractors. Recently, there have been attempts to develop soft law standards further towards the applicability of human rights law to business activities.103 However, these standards have not yet become hard law. In a similar way, the above-mentioned code of conduct and the attached oversight mechanism might contribute to a better and then enhanced application of human rights law to the conduct of private military contractors outside armed conflicts, in particular if involved in police activities or in the management of detention facilities.
Simply aiming at the development of new hard law will not necessarily meet the requirements on the ground. New standards may easily contradict existing standards and thereby weaken rather than strengthen existing rules.
The development of soft law standards in this field avoids the trap of weakening existing rules by accepting the prevalence of these rules and simply filling in the gaps with (secondary) rules. This may not necessarily be a complete and coherent answer to the debate about the so-called accountability gap with regard to the conduct of operations by private military contractors.104 However, notwithstanding efforts to bridge the accountability gap it is necessary and important to apply existing rules at this moment in time and not postponing the solution of the problem to a near or remote future. Furthermore, all debates about making private entities addressees of human rights entail the risk of weakening rather than strengthening the law.
The role of the state in public international at the interface between the
103 Most important in this regard is the adoption of the Resolution on Human rights and transnational corporations and other business enterprises by the Human Rights Council (UN Doc. A/HRC/RES/17/4). For a discussion of the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (UN Doc. A/HRC/17/31, Annex) see, among others, J. M. Kamatali (2011/2012), 437.
104 See Groth (Fn. 6), 44–62 and A. Mehra (2010), 323.
international and municipal level, at the interface between governmental and private actors, has changed and has become more complex but it has remained as important as it has been in the past.
As has been outlined in the first subsection of this chapter, it is not primarily private contractors who are the driving forces for their own deployment. Rather it is necessary to address the motives and incentives for governments to transfer the fulfilment of certain public tasks to private actors, and the (legal and political) consequences of such outsourcing. Such approaches have to take into account that private military contractors have become important actors in international security matters. Public international law should not focus on the ethics or the morality of individuals working with the inland as part of private military contractors. Public international law should instead be concerned with a practical solution of the problems arising out of a new actor becoming part of the scenery. As this chapter has pointed out, many problems can be solidly addressed on the basis of existing law, and the remaining problems can largely be settled by making use of and further developing the soft law instruments outlined above. Governments, the private security industry and large parts of civil society have opted for a rational approach to settle the problem related to private military contractors, rather than following a grand ethical design with little practical consequences.
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