One of the perceived advantages of the United Nations Guiding Principles on business and human rights is their applicability to all business enterprises. No particular industry or sector is singled out as being more susceptible to activities which harm human rights. The Guiding Principles do, however, recognize that the risk of gross human rights violations is ‘heightened in conflict-affected areas’.Footnote ¹ Guidance is offered, without discrimination, to business enterprises ‘operating in those contexts’.Footnote ² The all-encompassing approach of the Guiding Principles has obvious merit, but it also serves to effectively gloss over two types of companies that are intimately connected with armed conflict and arguably predisposed to its furtherance: arms manufacturers and private military and security companies. The private military company is the subject of Hin-Yan Liu’s engaging and at times challenging book. Its inspiration, the reader is told, was the Nisour Square killings, when staff of the Blackwater private military company killed over a dozen Iraqi civilians in the ‘single bloodiest incident involving American PMCs in Iraq’.Footnote ³ Its purpose is to examine how and why impunity has been the hallmark of private military companies in the modern era.

The private military company as a modern business enterprise is ‘a fundamentally different type of corporation, whose activities raise particular and elevated risks that justify greater oversight and closer regulation because of the grave nature of potential harm it can cause’.Footnote ⁴ Hin-Yan Liu expertly examines how law and legal processes have been brought to bear on the activities of private military companies, including both internationally and domestically. However, Law’s Impunity goes much further in its analysis. The author offers a unique approach by seeking to demonstrate that the law as it relates to private military companies perpetuates the impunity that so often attaches to there activities. The book’s central enquiry is whether ‘the law might in fact be the source of the very problems it is applied to redress’.Footnote ⁵ The orthodox legal approach to private military companies has sought to demonstrate that such entities do not operate in a legal vacuum, that international humanitarian law, human rights and criminal law can be employed to regulate their activities. Nonetheless, the recidivism of private military companies in failing to respect human rights, he argues, show up the ‘shortcomings and inadequacies of this response’.Footnote ⁶ Accordingly, the author seeks to engage in this book with the ‘radical idea’ that ‘law creates and maintains situations of impunity’.Footnote ⁷

The book’s first chapter examines the concept of law’s impunity, distinguishing between the passive and active impunity that law and legal processes may generate. It provides the theoretical basis for the subsequent consideration of impunity in the context of the modern private military company. Hin-Yan Liu explains that passive impunity arises through ‘formal and factual restrictions imposed upon access to accountability procedures’, while active impunity exists where there are ‘obstacles erected which limit the probability, or even the possibility, of securing substantive remedies through those accountability procedures’.Footnote ⁸ In Chapter 2, the author turns to the emergence of the modern private military company itself, providing illustrative examples of the impunity that has attached to incidents involving torture, the killing of civilians and trafficking for purposes of sexual exploitation. He asks provocatively whether the private military company is to be considered as a criminal enterprise or legitimate business, noting that the corporate form ‘legitimates activities that would otherwise be criminal’, while also offering a criminal enterprise ‘the efficient corporate business framework with which to pursue its criminal agendas’.Footnote ⁹ The issue of criminality is also addressed in Chapter 3, which focuses on mercenarism. The author describes the inconsistent treatment of mercenary activity by international law, with attempts on the one hand to criminalize mercenarism, while international humanitarian law on the other seeks to deny prisoner of war status to mercenaries on the basis of a notoriously problematic definition. Instead of marginalizing the mercenary, the latter approach has ‘the diametrically opposite effect’, especially owing to its limited application in practice.Footnote ¹⁰ The silence of the law of non-international armed conflict on the subject of mercenaries serves to buttress this argument.

In Chapters 4 and 5, Hin-Yan Liu applies the concepts of passive and active impunity to the modern private military company. These sections provide a sobering analysis of how domestic legal regimes, such as company law, contract law and the law of torts, and international legal regimes, including the jus ad bellum and international criminal law, can serve to entrench rather than combat the impunity which attaches to the activities of private military companies. The author echoes the common refrain that human rights and humanitarian law were designed with different actors in mind to those that are more prominent today.Footnote ¹¹ He provides a highly instructive examination of the engagement of the United States legal system with private military contractors and companies, including a detailed consideration of the somewhat false promise of civil remedies under the Alien Tort Claims Act. One of his central conclusions here is that the barriers to justice which exist, many of which are legal in nature, have a ‘powerful exonerating effect’ for private military companies.Footnote ¹²

The consideration given in Law’s Impunity to the concept of corporate criminal liability is worth highlighting, given the author’s view that it holds considerable potential as a means of overcoming the impunity that has so characterized the private military company, and because of its more general application beyond such companies.Footnote ¹³ In the view of Hin-Yan Liu:

The author engages well with long-standing arguments against corporate criminal liability, although he seems to leave hanging the idea that prosecuting a legal person might amount to collective punishment.Footnote ¹⁵ This would depend on the nature of the sanction imposed. Charter revocation, the most severe and rarest of punishments,Footnote ¹⁶ could indeed have a serious impact on individuals, such as employees or shareholders. The more common punishments for companies, including fines, asset seizures or the publication of adverse findings would have less of an effect on individuals and could even act as a reparative measure, comparable to that which arises for state responsibility under international law. Judicial discretion in the area of sentencing could serve to assuage this concern.

The absence of corporate criminal liability from international criminal law is lamented by the author, but he correctly observes that it is to be found in a number of national jurisdictions, and is present in the Draft Convention proposed by the UN Working Group on Mercenaries. The latter has adopted an approach that is found in international treaties which address the liability of corporate entities for crimes such as corruption, bribery and the exploitation of children. States parties must provide domestically for the liability of legal persons, but deference to national legal traditions allows scope for determining whether the form of such liability should be criminal, civil or administrative in nature. The concept of corporate criminal liability, or at the very least the liability of legal persons, is relevant for the ongoing efforts at the international level to develop a binding instrument on business and human rights.

The future of private military company impunity is addressed by the author in Chapter 6, by offering a précis of efforts at the international level to regulate these companies, while also touching briefly on self-regulation. The author expresses the concern regarding current initiatives that ‘existing flaws will be adopted into new forms of regulation and will fail to provide the structure of responsibility and accountability necessary to combat allegations of impunity’.Footnote ¹⁷ It is a stark conclusion, one which should be considered by those engaged in ongoing attempts to regulate private military contractors. They might also benefit from the author’s proposed schema for measuring the robustness of proposed forms of regulation. The book’s concluding chapter draws together the various discussions and strands of argument, and summarizes the author’s view that ‘the law has been incapable of comprehending the range of challenges posed by the PMC’.Footnote ¹⁸

Law’s impunity is a well-written, thorough, and thought-provoking monograph. It provides a wealth of information and analysis concerning the history, practice and law applicable to private military companies, and then builds on this foundation by offering a compelling analysis of law’s failures and potentially counter-productive efforts when it comes to regulating and holding such companies to account. Those with an interest in the regulation of armed conflict, the private sector, and the intersection of the two, would be well-served by reading this impressive book.