Making War and Making Law: The Generation of International Legal Norms to Regulate Private Military Violence

Private military violence occupies a space at the periphery of international law, uncomfortably straddling the lines between the public and the private, the domestic and the international, armed conflict and law enforcement, civilian and combatant, and even personnel and materiel. This thesis approaches the problem of private military violence by considering how international humanitarian law’s inner boundaries and core categories shape and constrain ongoing efforts to regulate the industry. It argues that private contractors, like other non-State actors in war, challenge some of the core assumptions of international law and expose critical contradictions in international law’s execution of its humanitarian project. In questioning the sharpness of three of international humanitarian law’s core distinctions, this study of private military contractors provides an entry point for a deeper critique of the laws of war. Given the position of contractors at the periphery of international law, the ongoing contest over their legitimacy offers important insights into the ways in which the international regulation of warfare involves strategic, normative decisions about the privileging and ranking of different forms of violence. This study considers the place of private military contractors in international law’s ordering of irregular violence. The thesis argues that, like other international actors, the private military industry exploits international law’s inner boundaries and contradictions, using them as manoeuvring tools to position themselves as legitimate actors in armed conflict. I build on the work of critical scholars such as David Kennedy and Nathaniel Berman to challenge international law’s claims to universality and objectivity. I argue that by their structure and content, the laws of war systematically privilege some actors while stigmatising others, and that contractors have proven remarkably successful at positioning themselves on the side of privilege. I conclude that the regulatory exercise has been caught between competing impulses to disavow and normalise commercial violence in war