Here is another law journal article that argues that PMC play a useful role in maintaining international security.
Specifically, the article, with the refreshingly direct and to the point title, "Men With Guns" by Assistant Professor of Political Science John Riley and Michael Gambone, Professor of History, Kutztown University, that appeared in the spring 2010 issue of the Wisconsin International Law Journal argues that:
By outlawing mercenaries, the international community has inadvertently made effective regulation of PMCs all but impossible. More effective regulation would be possible if PMCs were formally legalized and a simple regulatory regime that charged the contracting actor with the responsibility of holding the PMC compliant with international humanitarian law ("IHL") was created.
As they see it the root cause of the business and human rights predicament today lies in the governance gaps created by globalization -- between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. These governance gaps provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparation. How to narrow and ultimately bridge the gaps in relation to human rights is our fundamental challenge.
A governance gap (i.e. absence of national or international accountability) has emerged whereby PMCs are increasingly violating international humanitarian law ("IHL") and are rarely being held accountable. The reason is twofold. First, the confluence of an ideological shift favoring the privatization of the military and the rapid rise of global markets has led to the proliferation of PMCs. Second, international law has failed to keep pace with these changing market forces. Consequently, regulation of PMCs falls to either a set of anachronistic international laws, incongruent national law enforcement, or to the firms themselves, and all three approaches are proving inadequate. The result is predictable; the rare prosecution of an alleged illegal PMC activity receives high levels of news coverage whereas the day-to-day PMC activity lacks transparent and effective oversight.
Riley and Gambone believe in the realist view of international relations, meaning states are the dominant power players in the system and that while globalism and its practices may be challenging national sovereignty, they do so within a well-established context of global power politics.
Thus they believe that bringing PMCs into compliance with international humanitarian standards is broadly consistent with states' interests and that international law ought to be reformed to facilitate the regulatory process.
Despite all the hue and cry about PMC regulation and recent years there is no distinct body of international law governing the use of PMCs. Instead there is a set of international conventions prohibiting mercenarism. But as everyone should understand PMCs are not covered by the definitions of "mercenaries" in these conventions in either form or function. Therefore, attempts to use these conventions as a basis of international regulation are counterproductive. More to the point, by continuing to outlaw mercenarism, the international community is inadvertently creating a series of legal loopholes that make effective regulation of PMCs all but impossible.
The authors argue:
More efficacious regulation would be possible if PMCs were formally legalized and a simple regulatory regime that charged the contracting actor with the responsibility of holding the PMC compliant to IHL was adopted in its stead. By doing so, the international community would define baseline expectations of what constitutes acceptable behavior. States would then be free to rely on PMCs within reasonable limits and would retain the flexibility to define the manner in which they would hold PMCs accountable either via municipal law or a future convention. Such an approach would be preferable to the status quo and a reasonable first step to the creation of a long term and sustainable regulatory regime.
The principles underlying the alternative regulatory regime the authors propose are:
a) A legal combatant is one who is either a member of a country's armed forces, an agent of a government, or is a contracted agent of a government or a licensed nongovernmental organization. Consequently, the conventions, or their relevant sections, that outlaw mercenary activity will be abrogated.
(b) Participants in combat are afforded equal legal status. The laws that govern armed conflict apply to all participants.
(c) The contracting country or nongovernmental actor is obligated to verify that contracted employees are in compliance with IHL, report violations, and sanction violators.
The authors think the advantages of these principles are:
The first principle defines accountability as a function of the relationship between the contracting actor and PMC; the contract is the means of establishing liability. At first glance it might appear that requiring a PMC to do no more than sign a contract before participating in a conflict is setting a low legal standard, but as Laura Dickinson observes, the contract is the "vehicle of military privatization and as such they could carry what we might call the norms and values of public international law into the "private' sector." This overlap between the two spheres is worth noting and its re-emphasis is necessary. Much of what has obscured the lines defining the public and private spheres may be said to be due to state and international practice over the last two decades.
The first principle also addresses the post-colonial zeitgeist that permeates the conventions and led their authors to create a false dichotomy between public and private sector combatants with no provisions to regulate NGO employment of PMCs. By delivering an array of services that ranges from providing emergency humanitarian aid to education, NGOs frequently play critical roles before, during, and after conflicts; increasingly, they are turning to PMCs to provide logistics, transportation, or security. Although these NGOs are typically biased towards employing PMCs that abide by IHL, nongovernmental actors are an elastic group of actors that range from international governmental actors (e.g. the United Nations) to multinational corporations that might look to secure economic interests before or during a conflict. Consequently, there is a need to create a set of laws to govern the NGO-PMC relationship. One potential answer is to license or certify NGOs. Should all NGOs be able to hire PMCs? Or should only international governmental organizations ("IGOs") or NGOs working under a government or IGO contract be able to employ PMCs? There are merits to both approaches, and the licensing procedures could take several forms, but to be effective a regulatory regime must also hold the contracting agent accountable for their use of PMCs.
The second principle suggests that employment status (e.g. public versus private employees), motivations (e.g. patriotism or profit seeking), nationality (e.g. national or foreign fighter), and duty (e.g. force projection or training) have no bearing on the legality of the combatant. Rather, public law governing the standards of entering and fighting a war applies to all combatants. Consequently, the intractable problem of ascertaining where PMCs fit into the existing law is put aside in favor of a more succinct approach. It would no longer matter if a PMC is using force for defensive or offensive reasons, or if the company was providing services at the tooth or the tail of the operation; by participating in the theater with ongoing combat operations, PMCs are afforded the same protections and are subject to the same rules as any other combatant. By folding PMCs into the framework governing all other legal combatants, the inviolable distinction between civilian and combatant is preserved.
The third principle speaks to the obligations a government or NGO assumes by employing a PMC. In the simplest terms, the contracting party is responsible for monitoring its contractors' actions, must publicly disclose any discovered violations of IHL, and must sanction violators. For international nongovernmental actors employing PMCs, this would likely amount to terminating contracts, and reporting the violation to the employee's country of citizenship and to a designated international governmental organization. More fundamentally, the principle clarifies the level of state responsibility. States are free to draw upon private military forces as long as they hold the PMC to the same standards as their public military. Consequently, questions of which agency of the State is employing the PMC or if the PMC is directly involved in combat operations become moot. Accountability is established.
In sum, under the alternative regime proposed here, a private military force would be operating legally if it were employed by a licensed nongovernmental organization or state, complied with the standards of IHL, and the contracting party monitored the PMC, reported any violations, and enacted sanctions upon the PMC when appropriate.
The authors conclude:
Perhaps most importantly, the framework proposed here advances a method of regulating PMCs that is consistent with the manner in which states desire to utilize them. That is, it seeks to update international law so that it better reflects states' positions, rather than attempt to subjugate state activity under international law. Operations in the Balkans, Afghanistan, and Iraq suggest that PMCs have become an integral component of the modern battlefield. Any effort to hold PMCs to the standards of IHL will only be successful if countries view these efforts as being consistent with their own larger geo-strategic interests. The conventions banning mercenaries reflect the interests of the international community during the decolonization and Cold War period, and fail to reflect the ongoing efforts to rely on private sector security. The consequence is that international mercenary law has been largely ineffective in preventing the proliferation of private military forces and simultaneously inhibits reasonable efforts to regulate their activity.
A solution begins with the recognition that PMCs are not mercenaries but are combatants ("men with guns"). As such, they should be regulated like any other combatant, and states and non-government organizations should be able to legally employ PMCs if they are willing to monitor the contracted PMCs and hold them accountable for their actions. Under such a regime IHL would be advanced.