State Responsibility and New Trends in the Privatization of Warfare
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State Responsibility and New Trends in the Privatization of Warfare

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.
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Chapter 7: State responsibility for the act of outsourcing

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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