GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2006

Status

Accepted

Abstract

This essay is a contribution to the War Crimes Research Symposium: "Torture and the War on Terror” at Case Western Reserve University School of Law, October 7, 2005. The symposium raised important questions about the problem of torture and the use of torture in the so-called "War on Terror." In considering this problem, this essay focuses on an aspect of the issue that has only recently received popular and scholarly attention, but that is likely to have profound implications: the privatization of military functions, and specifically, the privatization of torture. Such privatization may, at first blush, seem to render it more difficult to hold human rights abusers accountable because private actors might not be deemed subject to various international human rights instruments that were initially drafted primarily with states in mind. Yet, while the extensive outsourcing of torture to private military contractors is certainly a cause for serious concern, such outsourcing may not provide as serious an impediment to accountability as it may at first seem. Indeed, abuses by private contractors may actually be more readily subject to legal sanction than abuses by official governmental actors. Nevertheless, scholars and policymakers need to look beyond simply the formal instruments of international human rights law and consider alternative modes of accountability as well, such as the use of contractual provisions and internal institutional structures. These alternative modes of accountability harness the potential of the government contracts that are the very engine of privatization to help deter and prevent torture and other abuses.

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