The United States, PMSCs and the state monopoly on violence: Leading the way towards norm change

This is the author's accepted manuscript. The final published article is available from the link below. Copyright @ 2013 Sage.The proliferation of private military and security companies (PMSCs) in Iraq and Afghanistan has raised many questions regarding the use of armed force by private contractors. This article addresses the question of whether the increased acceptance of PMSCs indicates a transformation of the international norm regarding the state monopoly on the legitimate use of armed force. Drawing on theoretical approaches to the analysis of norm change, the article employs four measures to investigate possible changes in the strength and meaning of this norm: modifications in state behaviour, state responses to norm violation, the promulgation of varying interpretations of the norm in national and international laws and regulations, and changes in norm discourse. Based on an analysis of empirical evidence from the United States of America and its allies, the article concludes that these measures suggest that the USA is leading the way towards a transformation of the international norm of the state monopoly on violence, involving a revised meaning. Although this understanding has not yet been formally implemented in international law, it has allowed a growing number of countries to tolerate, accept or legalize the use of armed force by PMSCs in the international arena.The Alexander von Humboldt Foundation and the Peace Research Institute Frankfurt

From 'Mercenaries' to 'private security contractors': The (re)construction of armed security providers in international legal discourses

The proliferation of armed security contractors in Iraq and Afghanistan has led to widespread criticism of their insufficient control through international laws and conventions. This article suggests that one reason for this omission has been the (re)construction of actors who provide armed force for profit in international legal discourses. During most of the 20th century, armed persons who participated in foreign conflicts for monetary gain were identified as 'mercenaries'. They were outlawed through international legal documents such as the United Nations (UN) Convention on Mercenarism and given restricted rights in the First Additional Protocol to the Geneva Conventions. Today, the same types of actors are increasingly defined as 'private security contractors', and new discourses and international agreements are emerging that attribute to them legality and legitimacy. The aim of this article is to examine the changing legal constructions of armed security providers since the 1970s and the consequences with respect to their control. The article argues that the (re)construction of actors who supply armed force for money in international legal discourses has been made possible by three main discursive strategies: the distinction between persons and corporations providing armed force for profit, the changing focus from the motivations of these actors to their relationship to a 'responsible command', and the shift from a concern about the actors to one about certain activities. © The Author(s) 2012

From Protecting Lives to Protecting States: Use of Force Across the Threat Continuum

The increasing prominence in recent years of non-international armed conflicts that extend across state borders has strained the traditional legal categories that we use to regulate state use of force. Simultaneous with this phenomenon has been growing acceptance that human rights law and international humanitarian law should co-exist, with the former informing interpretations of the latter to varying degrees. Scholars continue to debate vigorously the implications of these developments and how these bodies of law should interact. As Kenneth Watkin’s book Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict observes, however, commanders have no choice but to navigate these ambiguities and attempt to reconcile these tensions on the operational level as they engage in hostilities. Watkin’s magisterial book can be seen both as a work of operational law and a major scholarly treatment of the law governing the use of force. It provides detailed accounts of how situations arise on the ground that evade easy classification in terms of our existing conceptual and legal categories. At the same time, it furnishes a valuable framework for analyzing the features of such operations that are relevant in assessing how force should be used in particular scenarios. Finally, Watkin offers a set of principles for both operational law and broader policy decisions to help navigate the complex terrain of modern security challenges. Watkin argues that the twenty-first century approach to conflict must be “holistic” in nature. On the one hand, it must it must acknowledge “the simultaneous application of humanitarian and human rights law,” and the greater influence of the latter in shaping perceptions of the legitimacy of violence. On the other hand, it must appreciate that “the altered security environment of this century has witnessed a definite move away from looking at conflict itself as being uniquely conventional or unconventional,” as transnational non-state organized armed groups have emerged that do not resemble traditional armed forces. This review essay describes the main ideas in Watkin’s rich and comprehensive analysis. It then focuses in more detail on two of his suggestions. The first is that state forces should presumptively operate under law enforcement rules until this is insufficient to meet a threat, even in the course of an armed conflict. This reflects the incorporation of human rights principles as a default policy even when more permissive rules on use of force are available. The second suggestion is that certain hostile engagements with non-state forces may appropriately be characterized as armed conflicts of limited duration, governed by international humanitarian law. These two proposals reflect his view that characterization of the nature of hostilities should depend upon facts on the ground, specifically the nature of the means that states must use in order effectively to deal with a threat. I then discuss whether this approach should lead to assessments of state use of force that rely on contextual analysis of the weight of the interests at stake in a given situation, rather than on classification of hostilities in one of our two traditional main legal categories. While Watkin does not take this step, I analyze the work of others who make a cogent argument that we should. Ultimately, I conclude that our existing imperfect legal framework is preferable to a purely contextual approach, because of the radically different moral universes that animate human rights law and international humanitarian law

Rethinking War Powers: Congress, The President, and the United Nations

The division of war powers between Congress and the President has never been free of ambiguity or tension. The Constitution grants Congress the power to declare war, to raise and support armies, to provide and maintain a navy, and to make rules for the regulation of those armed forces. The President, on the other hand, is the Commander in Chief of U.S. armed forces. Most scholars agree that the framers sought to strike a balance: the President alone could not commence war, but he could use force to repel sudden attacks on the United States or its armed forces. Reacting against the unilateral power of kings to go to war without the consent of the people, the framers desired a democratic check on the power of the President to initiate armed conflict. Disagreement rages, however, over what the sparse words of the Constitution should mean today, when wars are hardly ever declared in advance, U.S. forces are stationed on foreign soil on a semipermanent basis, and the country\u27s security interests are intertwined with those of other states in an increasingly interdependent international system

Menuju Parlemen Bikameral (Studi Konstitusional Perubahan Ketiga UUD 1945)

The consequences of using these two chambers, it wipes out the district regulation/district representative and the composition of People\u27s Consultative Assembly, so thatt here is no special position for the Indonesian National Armed Forces and The Indonesian Police Force at The People\u27s Consultative Assembly. The Group Delegate and the representative of The Indonesian National Armed Forces and The Indonesian Police Force at The People\u27s Consultative Assembly are deleted. It is taken because the apply of this people\u27s representative system called bicameral as mentioned above namely Delegate and The Indonesian National Armed Forces/ The Indonesian Police Force can be manifestated through both Group two Legislative Board

Jihad re-examined: Islamic law and international law

The Arabic term jihad, which means striving, endeavouring, and struggling, has widely been conceptualised to include ‘armed struggle’ as one of the forms of jihad. Jihad has been used by political leaders in some Islamic States or increasingly by non-State actors either to justify the use of force (e.g. Al-Qaeda’s 1996 ‘Declaration of War against the Americans Occupying the Land of the Two Holy Places’, and the 1998 World Islamic Front pronouncement signed by Osama bin Laden and Ayman al-Zawahiri, among others, declared ‘jihad against Jews and Crusaders’) or to condemn the use of force as unlawful. Jihad has inspired many recent armed conflicts including that of the resistance to the US war against Afghanistan in 2001, the US-UK invasion and occupation of Iraq in 2003, the struggle for self-determination in Kashmir since 1947, the Palestinian struggle for reclaiming land from Israel since 1948 and the on-going armed conflict in Somalia. In recent times, the application of jihad to justify the use of force or its condemnation has raised questions regarding the compatibility of the jihad concept as conceptualised in Islamic law or by leaders of some Muslim groups with modern norms of international law as enunciated in the United Nations Charter. This article seeks to examine the evolving concept of jihad in Islamic law, its contemporary application and its compatibility with international law, in particular the relationship between jihad, freedom of religion/belief, and the prohibition on the use of force

Targeted killing as a means of asymmetric warfare: a provocative view and invitation to debate

The killing of Mahmoud al-Mabhou reportedly by agents of Israel‟s Mossad service in Dubai a year ago1 serves as a quick reminder that extrajudicial executions, assassinations and other targeted killing operations are taking place and are part of a modern democracy‟s arsenal of antiterrorism and counter-terrorism means. Targeted Killing Operations reportedly form part of NATO‟s operational practice: depending on the circumstances they represent just another option of the lawful use of force in an armed conflict or assimilated situations. Consequently, it is argued that International Law does not impose an explicit ban on the lethal neutralization of certain persons in an armed conflict scenario. This opinion provides a provocative view on possible justifications using targeted killing as an actual means of present day security operations – which must not be confused with traditional methods of domestic „policing‟ in a democratic state

Enfants-soldats au Nigeria : les romanciers témoignent

During an interview, Ishmael Beah, conscripted in Sierra Leone when he was 13, testified to the fact that the rights of child‐soldiers were constantly violated. In recent years, the plight of these soldiers defined as “anyone under the age of eighteen who is part of any kind of regular or irregular armed force or armed group in any capacity”, started attracting the world’s attention, following the conflicts which have been ravaging most of the African continent for the last century. While former Biafrans and foreigners who experienced the conflict first hand wrote about casualties and the plight of refugees, the stories of young boys conscripted into the Biafran army has so far attracted very little attention. The present study seeks to assess the impact of the recruiting of child-soldiers during the Nigerian civil war on four Nigerian novelists: Abani, Adichie, Iweala and Saro-Wiwa

Threats of armed force and contemporary international law

The present article analyses threats of armed force by states against other states. After determining what conduct amounts to a ‘threat of force’, the current status of its prohibition is investigated. In particular, this article contends that the prohibition of the threat of force contained in Article 2(4) of the UN Charter reflects customary international law. The fact that only a few states have supported the legality of threats for certain law enforcement purposes prevents the prohibition of any threats of force from being qualified as jus cogens. This status should be limited to the prohibition of threats of aggression, which constitutes the common denominator of the practice and opinio juris of all states. The consequences of threats of force under the law of treaties, the law of state responsibility and international criminal law are then discussed, in particular treaties, the conclusion of which has been obtained by the threat of force in violation of the UN Charter are void ab initio. Article 41 of the ILC Articles on State Responsibility could also entail a duty of non-recognition of situations procured by the threat of aggression. On the other hand, threats of aggression (let alone threats of less serious forms of the use of force) cannot be qualified as international crimes entailing individual responsibility. As to remedies at the disposal of the victim state, armed responses to threats of force would be lawful only within the limits of self-defence, and only if the threatened armed attack is imminent enough to meet the Caroline requirements. On the contrary, coercive responses to non-imminent armed attacks are still prohibited under contemporary international law

Tourist attraction? Or reverence – The Royal New Zealand Air Force Museum. A case study of the tensions between intent and presentation

The military museum has in the last quarter of the 20th Century undergone a transformation in Western societies. The military museum has become less concerned with remembrance and more concerned with education and analysis. In New Zealand the armed services operate three museums; the Army, Air Force and Navy Museums. The following article is a case study based upon an interview undertaken with the Director of the Royal New Zealand Air Force Museum. This case study highlights the tensions a military museum Director may encounter in undertaking their duties, and satisfying their diverse stakeholders. For the Director of the RNZAF museum, a conflict has arisen between the needs to offer critical analysis of historical actions (in an educative context); to provide a tourist destination (as a primary means of funding) and to ensure a site of remembrance for those affected by the events portrayed