The growing reliance on private military and security companies (PMSCs) has exposed an accountability gap within international law: states benefit from using PMSCs to breach international law while evading responsibility. Historically, the International Court of Justice has relied on Articles 4 and 8 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) to hold that a state is responsible for a non-state actor when it exercises either “complete dependence” or “effective control.” As this article demonstrates, these standards are inapplicable to modern state-PMSC relationships and allow states to use PMSCs with impunity.  

This article argues that Article 5 of the ARSIWA can be used to capture the modern state-PMSC relationship and provide a basis for attribution. Properly interpreted, Article 5 creates an “inherent-to-state” standard under which a state is responsible for the conduct of a PMSC when it is employed to carry out functions that are inherent and exclusive to governments. Drawing on international conventions, decisions of international tribunals, and the text and commentary of Article 5, this article shows that the inherent-to-state standard is reflective of customary international law. Recognizing and adopting this standard would greatly narrow the accountability gap and prevent states from outsourcing violence while disclaiming responsibility.