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Frauke Renz

Reliance on PMSCs is a phenomenon during armed conflicts. There were numerous studies on state responsibility for the acts of private individuals and also for the acts of private military and security contractors. Yet, those primarily focused on the traditional roles of the contractors, ranging from logistical support to the provision of static and mobile security services. To be able to understand how the Articles on State Responsibility apply to the reliance on PMSCs in the context of new trends in warfare, first, PMSCs are defined by relying on the Tip of the Spear analogy to take the possibility of remote warfare into account. The different relationships between states and PMSCs are defined, enabling a more accurate discussion of the respective due diligence obligations resulting for these states.

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Frauke Renz

The history of warfare would be incomplete without considering the various forms of involvement of private citizens. From ancient mercenaries to free lances in the Middle Ages, private citizens were prevalent in many conflicts that shaped our modern societies. A brief look at the history of the private security industry and its evolution helps understand the phenomenon. The work of private contractors is no longer limited to the provision of static and mobile security. Instead, private contractors are also performing roles such as analyzing intelligence data, operating UAVs and programming weapon systems. Understanding how they are regulated is thus key to addressing potential gaps with regards to state responsibility. The perceived lack of regulation is a key criticism, yet, PMSCs are addressed in international and regional regulatory efforts, through self-regulatory and voluntary initiatives as well as in national regulation.

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Frauke Renz

Understanding the key concepts and initial considerations regarding the state responsibility regime helps understand the current debates about the applicability of the Articles on State Responsibility (ASR). Moreover, it is important to understand content and structure of the ASR to apply them to new realities in warfare. Key aspects of the ASR encompass the concepts of attribution and breach, circumstances precluding wrongfulness, content and invocation of state responsibility as well as countermeasures. The ASR have to be understood in the context of lex specialis provisions given that self-contained regimes as well as treaty provisions multiply norms in the field of state responsibility. Finally, the interplay of state responsibility, individual responsibility and corporate responsibility is introduced. All levels of responsibility are interrelated when it comes to the involvement of PMSCs.

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Frauke Renz

The breach of an international legal obligation is one of two fundamental conditions for state responsibility. A focus of this book is on obligations states must uphold during armed conflicts. Sources of obligations can be jus cogens, treaty obligations as well as obligations under customary international law. This gives the reader an overview of the range of relevant obligations for contracting, home and territorial states. There are obligations of conduct and result as well as breaches through acts and omissions. The focus is furthermore on establishing whether there are certain general due diligence obligations which states have to uphold. To understand the respective obligations more thoroughly, obligations under IHRL and IHL are assessed in more detail.

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Frauke Renz

There are different ways in which the acts of private contractors can be attributed to a contracting state. Those include attribution under lex specialis provisions under IHL, in particular the question whether the contractors are de facto members of the armed forces under IHL. Attribution because of de facto membership in the armed forces needs to be distinguished from the debate about the contractors’ legal status under IHL. Acts of private contractors can furthermore be attributed to the state under Art. 4 ASR if the contractors are de jure or de facto members of the armed forces. Another option for attribution of the contractors' acts is if they were exercising elements of governmental authority according to Art. 5 ASR. Finally, their acts can be attributed to the state if they were instructed, directed or controlled by a state under Art. 8 ASR.

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Frauke Renz

Contracting states, home states and territorial states face vastly differing due diligence obligations. Contracting states have a heightened duty to prevent as they required the contractors to act in the context of the armed conflict. They can address this duty to prevent through procurement standards, industry standard compliance requirements as well as contract provisions. Moreover, contracting states have a duty to legislate and create administrative structures to investigate alleged violations of international legal obligations. Home states must regulate PMSCs either through licensing regimes, export control regimes or reporting obligations. This has to be complemented with stringent monitoring and oversight capabilities. The example of the Swiss PSSA regulation highlights how home states can uphold their due diligence obligations. For territorial states, upholding the duty to protect is challenging given frequent instability and lack of institutional capabilities.

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Frauke Renz

A key question of this book is whether contracting states violate their international legal obligations by outsourcing certain functions to PMSCs. It is argued that contracting states cannot uphold the principle of distinction in good faith while relying on private contractors to regularly directly participate in hostilities even though they qualify as civilians. To determine whether the principle of distinction was violated, the category of inherently governmental function is particularly useful. The argument is made that to uphold the principle of distinctions, states should not outsource functions which are consistent with the principle of the state monopoly on the legitimate use of force, especially the widespread and regular direct participation in hostilities, waging war and combat operations.

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Frauke Renz

Three case studies were chosen to address new trends in warfare and the role of PMSCs therein. They are not the typical cases discussed when addressing responsibility for the acts of PMSCs but address the reliance on contractors during drone operations as well as in the programming of autonomous weapon systems. In these case studies, it is examined whether the acts of the contractors were attributable to the state, if the states violated their due diligence obligations and whether outsourcing the respective function violated the contracting state's legal obligations. These case studies were used to test the previously established hypotheses. It became evident that there are challenges with applying some of the rules on attribution to new trends in warfare. Moreover, the role of territorial states is particularly intricate during remote warfare. Finally, proximity to the battlefield becomes a key factor when addressing whether the principle of distinction was violated.

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Frauke Renz

The conclusion looks back at the various approaches taken to understand whether the ASR apply to the privatization of security and new trends in warfare. To answer the overarching question of this study, the ASR are applicable to the privatization of security and new trends in warfare. There are, however, several challenges. These range from the discussed relativity of key concepts of attribution to the inapplicability of the effective control test to autonomous warfare. The traditional understanding of elements of governmental authority as well as control and oversight must be adapted to allow for their application to new trends in warfare. These trends, ranging from remote operations to autonomy in weapon systems, bear many legal challenges. They also create increased due diligence obligations. Yet, because of the relativity of this concept, there is limited merit in solely focusing on the states’ positive obligations.

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Frauke Renz

Contracts with private military and security companies are a reality of modern conflicts. This discerning book provides nuanced insights into the international legal implications of these contracts, and establishes an in-depth understanding of the impacts for contracting states, home states and territorial states under the current state responsibility regime.