The Accountability Gap: Private Military Companies in International Law

War used to have rules. Then someone decided to outsource it to contractors. Now nobody's quite sure who's responsible when things go wrong.

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Picture this: a contractor employed by a company registered in one country, hired by another government, operating in a third nation, shoots someone. Who's accountable? If you answered "literally nobody," congratulations—you've understood the private military company problem in one go.

Modern warfare isn't just soldiers in uniform following orders from clear command structures anymore. It's also private military and security companies (PMCs) providing everything from logistics and training to armed protection and actual combat support. And whilst they've become absolutely embedded in conflicts worldwide, international law is having a proper crisis trying to work out who's responsible when things go sideways.

The Outsourcing Boom (Or: How War Became a Service Industry)

PMCs aren't new. Mercenaries have been around since someone first realised you could pay people to fight your battles. But the scale and sophistication of the modern private military industry is something else entirely.

Since the end of the Cold War, demand for PMCs has increased so dramatically that we now have a major industry with some companies employing well beyond 10,000 staff. They're providing services ranging from guarding convoys to operating weapons systems, from prisoner detention to training local forces.

The International Committee of the Red Cross notes that recent armed conflicts have seen their numbers increase significantly, with some commentators speaking of a growing "privatisation" of war. Which sounds dystopian because, well, it is.

The Legal Framework (Or: Why Theory Doesn't Match Reality)

In theory, PMC personnel are subject to international humanitarian law when operating in armed conflicts, and to domestic criminal law where jurisdiction applies. Problem solved, right?

Not even close.

The majority of PMC employees are classified as civilians under international humanitarian law—unless they take direct part in hostilities. When they do engage in armed activity, determining their legal status becomes a nightmare. Are they lawful combatants? Civilians directly participating in hostilities? Something in between?

This ambiguity affects both their liability and their protection. And as Emanuela-Chiara Gillard, a legal expert at the ICRC, has noted, the challenges of holding perpetrators accountable "are general and not specific to the staff of PMCs/PSCs," but more legal avenues theoretically exist than for other actors. The gap is between theory and practice.

The Jurisdiction Circus

Here's where it gets properly messy. A contractor might be:

• A national of Country A

• Employed by a company registered in Country B

• Operating in Country C

• Under contract to Country D

When allegations of abuse arise, responsibility falls through the gaps like water through a sieve. Host states may lack the capacity or political will to prosecute. Home states may be reluctant to assert extraterritorial jurisdiction. Civil litigation is slow, expensive, and limited in scope.

As the European Journal of International Law puts it, attempting to address questions of accountability "brings us to a grey area of the law, both international and domestic." Legal proceedings against PMCs and their employees for violations are "relatively rare."

The Montreux Document (Or: A Nice Try That Didn't Quite Work)

In 2008, Switzerland and the ICRC got 17 states together and produced the Montreux Document—the first international document to reaffirm states' legal obligations regarding PMCs and to recommend good practices for regulation.

It covers the responsibilities of three types of states:

• Contracting states (countries that hire PMCs)

• Territorial states (countries where PMCs operate)

• Home states (countries where PMCs are registered)

The document outlines sensible things like licensing regimes, training requirements, and oversight mechanisms. It's grown from 17 states in 2008 to 61 states supporting it today, along with three international organisations.

Here's the catch: it's not legally binding. It's a compilation of good practices that relies entirely on voluntary compliance. Which is a bit like asking people to please drive safely but not actually having any traffic laws.

The Accountability Black Hole

States sometimes turn to private actors precisely because they offer flexibility and deniability. It's outsourcing risk whilst retaining strategic benefit, which sounds great if you're a government but terrible if you're a victim seeking justice.

Associate Professor Shannon Bosch from Edith Cowan University points out that under the International Law Commission's Articles on State Responsibility, states can be held accountable when they employ, support, or control private military groups. The problem? "Immunity clauses and informal arrangements" create obstacles, and proving the level of state control is evidentially demanding.

Robin van der Lugt from the Geneva Academy argues that the situation has evolved even further. Modern "proxy military companies"—entities like Russia's Wagner Group—function as extensions of state power rather than independent contractors. "Existing regulatory frameworks," he explains, "were designed to bring oversight to PMSCs operating in commercial markets. However, these guidelines fail to address state-sponsored entities whose actions are driven by geopolitical strategy."

Translation: the rules were written for one kind of problem, but the actual problem has mutated into something else entirely.

The Victim's Dilemma

From a victim's perspective, the situation is bleak. Individuals harmed by PMC actions face limited avenues for redress. Criminal prosecutions are rare. Civil claims are difficult to pursue across borders. International mechanisms offer little direct recourse.

This isn't just a legal problem—it's a trust problem. When accountability is this elusive, it undermines confidence in the entire legal system and contributes to perceptions of impunity.

The Geneva Academy notes that victims pursuing truth and justice face numerous obstacles, prompting discussions about "alternative accountability pathways"—which is legal speak for "the normal system isn't working."

The "Break Rules That States Can't" Problem

Perhaps most concerning is what van der Lugt identifies: "Part of the attractiveness of PMCs is that they can break rules that States can't or shouldn't. A rule-free zone that is beyond the reach of international accountability interrupts the system's ability to uphold peace and security."

He warns that if left unchecked, this could "spill over into a new normal around inter-State conduct at a time when the system lacks the robustness to self-correct."

Which is a polite way of saying: if we normalise accountability-free warfare conducted by proxies, the entire international legal order is in trouble.

What Happens Next? (Spoiler: Nobody Knows)

Some argue for stronger domestic regulation—better licensing regimes, clearer rules on the use of force, expanded extraterritorial jurisdiction. Others advocate for a binding international treaty specifically governing PMCs.

Critics caution that enforcement would remain challenging regardless, and that overly rigid regulation could push activity further into legal grey zones. Which is valid, but also suggests we're stuck between inadequate regulation and potentially counterproductive regulation.

Meanwhile, the ICRC insists that "all States have a responsibility to respect and ensure respect for international humanitarian law, including by the staff of PMSCs," and that states must "ensure that mechanisms exist for holding accountable the staff of PMSCs suspected of violating international humanitarian law."

That's the legal obligation. The practical reality? Considerably more complicated.

The Uncomfortable Truth

PMCs are no longer peripheral actors in warfare. They're structural features of contemporary conflict and security governance. As their role expands, the gap between what international law says should happen and what actually happens becomes harder to ignore.

The challenge isn't simply to condemn or legitimise private military activity. It's to ensure that accountability follows power. When states can outsource violence to private actors who operate in legal grey zones, traverse multiple jurisdictions, and face minimal consequences for violations, the credibility of international law itself is at risk.

Because here's the thing: war has always been brutal. But at least when it was conducted by uniformed state forces with clear command structures, we knew who to hold accountable when war crimes occurred. Now? Someone's definitely responsible. We're just not sure who.

And until that changes, victims of PMC abuses will keep falling through the cracks between corporate contracts, jurisdictional disputes, and voluntary frameworks that nobody's obliged to follow.

The law exists. The accountability? Still very much AWOL.