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PRIVATIZING WAR

A growing number of states use private military and/or security companies (PMSCs) for a variety of tasks which, in the past century, have primarily been fullled by soldiers. This book provides a comprehensive analysis of the law that applies to PMSCs active in situations of armed conict, focusing on international humanitarian law. It examines the limits in international law on how states may use private actors, taking the debate beyond the question of whether PMSCs are mercenaries. The authors delve into issues such as how PMSCs are bound by humanitarian law, whether their staff are civilians or combatants and how the use of force in self-defence relates to direct participation in hostilities, a key issue for an industry that operates by exploiting the right to use force in selfdefence. Throughout, the authors identify how existing legal obligations, including under state and individual criminal responsibility, should play a role in the regulation of the industry. lindsey cameron is a legal adviser for the International Committee of the Red Cross. Prior to joining the ICRC, she worked as a researcher in the Faculty of Law at the University of Geneva. She has also worked for the UN High Commissioner for Refugees in the Balkans and at the Court of Appeal for Ontario in Canada. This book was entirely researched and written prior to the authors engagement in the Legal Division of the ICRC, in the context of an independent academic project. The opinions expressed herein are her own and do not necessarily correspond to those held by the ICRC or its Legal Division. vincent chetail is Professor of Public International Law at the Graduate Institute of International and Development Studies, Geneva. He is also Director of the Programme for the Study of Global Migration and formerly the Research Director of the Geneva Academy of International Humanitarian Law and Human Rights. His main eld of interest relates to the various branches of international law applicable in times of armed conict.

PRIVATIZING WAR
Private Military and Security Companies under Public International Law

LINDSEY CAMERON and VINCENT CHETAIL

c a m b r i d g e u n i v e r s i t y p re s s Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, So Paulo, Delhi, Mexico City Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9781107032408 Lindsey Cameron and Vincent Chetail 2013 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2013 Printed and bound in the United Kingdom by the MPG Books Group A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Cameron, Lindsey. Privatizing war : private military and security companies under public international law / Lindsey Cameron and Vincent Chetail. p. cm. Includes bibliographical references and index. ISBN 978-1-107-03240-8 (Hardback) 1. Private military companies (International law) I. Chetail, Vincent. II. Title. KZ6405.M47C36 2013 341.6dc23 2012035441 ISBN 978-1-107-03240-8 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

CONTENTS

Foreword by Professor Marco Sassli Acknowledgements xvii Table of cases xix Table of acronyms xxxiii Introduction
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The limits on the right to resort to PMSCs

A The limits imposed by international law on the use of armed force jus ad bellum 10 1 Does the UN Charter prohibit delegation to private companies of states right to use armed force in self-defence? 10 2 PMSCs in peace support operations 17 3 Humanitarian organizations and the use of PMSCs 53 4 The prohibition of privateering and the use of private military and security companies 56 5 The prohibition of mercenarism 66 6 Conclusion 80 B The limits imposed by the laws of war jus in bello 80 1 Treaty-based limitations on the use of PMSCs 82 2 Implied limitations 91 3 Conclusion 113 C The limits imposed by IHRL 113 1 The legality of delegating law enforcement under IHRL 113 D Good faith 126 1 The principle of good faith in international law 127 2 Good faith and PMSCs 130 E Conclusion 133

The international responsibility of states and its relevance for PMSCs 134
A Attribution of acts of PMSCs under Article 4 ASR 136 1 A PMSC as a de jure state organ 136 2 The scope of state responsibility under Articles 4 and 7 ASR 158

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B The attribution to states of acts of PMSCs under Article 5 ASR 165 1 A PMSC as an entity empowered by internal law 166 2 The elements of governmental authority 172 C The attribution of the conduct of PMSCs to states under Article 8 ASR 204 1 Instructions 205 2 Direction and control 209 3 The criterion of instigation 221 D Concluding remarks on the attribution of the activities of PMSCs to states 223 E The responsibility of states for activities of PMSCs due to a lack of due diligence 225 1 Preliminary considerations on due diligence 226 2 Sources of due diligence relevant for the activities of private military and security companies 228 3 Obligations arising from the requirement to exercise due diligence 251 4 Implications for contracting states of the duty to ensure respect for IHL and IHRL regarding PMSCs 262 5 Implications for territorial states to ensure respect of IHL and human rights 280 6 Implications for home states to ensure that human rights and humanitarian law are respected 282 F Conclusion 286

The legal means through which PMSCs are bound by IHL 288
PMSCs as non-state actors 289 1 PMSCs (as companies) as a subject of international law 2 Beyond international personality: alternative avenues for binding PMSCs 305 B PMSCs as the sum of their individual employees 350 1 IHL: an inter-state law with individuals as addressees 2 The direct applicability of IHL to individuals 366 A 289

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The legal rules applicable to PMSCs and their personnel 383


A Establishing the status of PMSC personnel under IHL 385 1 PMSCs and combatant or ghter status 386 2 PMSCs and other statuses under IHL 418 B The impact of civilian status on the rights and duties of PMSCs: direct participation in hostilities 431 1 Consequences for PMSCs of directly participating in hostilities 432

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Concept, elements and time frame of direct participation in hostilities: what counts are specic acts 436 C The use of force by PMSC personnel in self-defence 455 1 The right to life does not entail an unqualied right to self-defence 457 2 Elements of self-defence from domestic criminal law, interpreted in the light of IHL 461 3 Scenarios on self-defence for a private armed guard of an occupation administration compound 484 D The rules applicable to PMSCs tasked with law enforcement in armed conicts 489 1 Identifying the applicable rules 489 2 Law enforcement rules under IHL 492 3 Law enforcement and human rights law 495 4 Law enforcement situations in armed conict and occupation 499 E Fleshing out the content of certain IHL obligations for civilians 524 1 Meeting the standards and conditions of internment and detention for POWs and civilians 524 2 Fundamental rights and freedoms 527 3 Recruitment 529 4 Providing aid 530 F. Conclusion 537

The implementation of responsibility arising from violations of international law by PMSCs 539
A Implementation of state responsibility 539 1 Implementation of state responsibility before international tribunals by other states 540 2 The review of implementation through treaty-body procedures 544 3 The legal actions of individuals against states 546 B The means by which states can regulate the conduct and dene the legal responsibility of PMSCs 570 1 International regulation 571 2 National regulation 575 C Establishing international criminal responsibility 582 1 Corporate criminal responsibility 583 2 Individual criminal responsibility 597 3 Prosecuting individuals in national legal systems 623 4 Conclusion 626 D Establishing civil responsibility 627 1 Establishing civil responsibility of PMSCs and their personnel 631

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2 Problems of jurisdiction 648 3 Conclusion 661 Implementing PMSC responsibility through self-regulation

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General Conclusion Selected Bibliography Index 708

672 678

FOREWORD

The growing importance and independence of non-state actors in international reality probably constitutes the greatest contemporary conceptual challenge to public international law. Multinational enterprises, armed groups, terrorists and non-governmental organizations are becoming increasingly important, while public international law is still mainly addressed to states and developed by states, and its implementation mechanisms are best geared towards states. Even when it comes to the use of force within a state against armed groups and between states, a domain previously considered as one of the core attributes of the Westphalian state, private actors that is, private military and/or security companies (PMSCs) play an increasing role. In some recent conicts, some belligerent states have employed more PMSC contractors than members of their regular armed forces.1 The international law applicable to PMSCs is therefore not only a practical humanitarian challenge, but also an ideal testing ground for conceptual de lege lata questions and de lege ferenda dilemmas. Here as elsewhere the question arises whether international law should combat (or already outlaws) the phenomenon, or cover and regulate it. Here as elsewhere, the possibilities are either to address those actors directly by international law or to deal with those categories via well-established subjects of international law such as states and international organizations, and to a certain extent (in particular for international criminal law) individuals. The issue is conceptually particularly challenging for the law prohibiting the use of force in international relations because that law is traditionally exclusively addressed to states. In practice, the issue also raises difcult problems for international humanitarian law (IHL). Certainly,
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Moshe Schwartz and Joyprada Swain, Department of Defense Contractors in Afghanistan and Iraq: Background and Analysis US Congressional Research Service Report (May 2011), Summary.

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since 1949 this branch has been, at least in part, equally addressed to armed groups involved in armed conicts against states and between one another. With the at least theoretically breathtaking development of international criminal law and international criminal justice in recent years, the individual has also become the addressee of some rules of IHL. Private companies hired by parties to armed conicts or others to conduct armed conicts, however, are not yet explicit addressees of IHL. The conceptual challenges and the practical importance of the phenomenon led me, together with my colleague Vincent Chetail from the Graduate Institute of International and Development Studies, to request a grant from the Swiss National Science Foundation to study how IHL deals with PMSCs. We are grateful that we received this grant and that we were able to realize this project under the umbrella of the Geneva Academy of International Humanitarian Law and Human Rights. Over the course of the project, Mr Rachid Ferhi conducted some preliminary bibliographical research. Ms Mary Picard completed some substantive research, in particular on PMSCs and human rights. Mr Mamadou Hebi, with his sharp mind and propensity for conceptual debates, carried out very extensive research on state responsibility and due diligence. Most of the theoretical references and some parts of the text of Chapter 2 are his, although the nal version signicantly differs from his doctrinal analysis and practical conclusions in important respects. Ms Marie-Louise Tougas, who has in the meantime graduated as doctor of laws at the Universit Laval in Canada with a thesis written in French on PMSCs and IHL, worked with our team for three months in 2009 in the framework of a research exchange nanced by the Fonds de recherche sur la socit et la culture du Qubec. In particular, thanks to her thorough knowledge of international criminal law, she has greatly contributed to what has now become Chapter 5 of this book. Finally, but most importantly, Ms Lindsey Cameron, with her total mastery of IHL and her typically Anglo-Saxon sense for practical solutions, joined the team. She is the sole author of Chapters 1 and 4, which will also appear in a revised and expanded form in her doctoral thesis. She also drafted Chapter 5 and she revised the entire book on substance and form. My colleague Vincent Chetail brought in his French sense for a thorough theoretical analysis and his vast knowledge of public international law and international human rights law (IHRL). He wrote Chapter 3 and actively participated, together with me, in supervising, commenting and revising the whole manuscript. His idea that IHL must not only be applied to PMSCs, but that the question through which means IHL can

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become binding on PMSCs must be tackled, is essential and it is completely neglected in existing legal writings. As for the undersigned, I had the honour and pleasure to lead numerous discussions with all the aforementioned and to develop more thoroughly, in a fascinating dialectic dialogue with Lindsey Cameron, some aspects of the chapter on the applicable rules of IHL. I consider, for instance, that the sections on the distinction between direct participation in hostilities and self-defence are genuinely innovative and of the highest interest beyond its application to PMSCs. The result of this collective effort is a study, which deals with the challenges PMSCs present for IHL in the most comprehensive way. It does this in my view in a coherent way, although different chapters reect the methodology and culture of their main authors, which enriches the debate. The book rightly focuses on the issues that raise specic legal problems rather than restating international law and in particular IHL for PMSCs. Thus, the reader will nd incomparably more developments on the concept of direct participation in hostilities than on the prohibition of rape and torture, although the latter may be more important from a humanitarian point of view and at times violated by PMSC staff. Yet, the application of these prohibitions to PMSCs does not raise legal difculties, while the concept of direct participation in hostilities does. The book does not deal with the historical, international relations, political science, psychological or public nance aspects of PMSCs. Nor does it proceed with an extensive systematic analysis of the facts, i.e. analysing who uses PMSCs, for what purposes, in which situations, how these PMSCs behave, how they are organized or managed. Others have done that.2 Facts are extensively used when it comes to applying the legal
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See e.g. Deborah Avant, The Market for Force: The Consequences of Privatizing Security (Cambridge University Press, 2005); Christopher Kinsey, Private Contractors and the Reconstruction of Iraq: Transforming Military Logistics (London: Routledge, 2010); Christopher Kinsey, Corporate Soldiers and International Security: The Rise of Private Military Companies (London: Routledge, 2006); Carlos Ortiz, Private Armed Forces and Global Security: A Guide to the Issues (London: Praeger, 2010); Molly Dunigan, Victory for Hire: Private Security Companies Impact on Military Effectiveness (Stanford University Press, 2011); Robert Mandel, Armies without States: The Privatization of Security (Boulder: Lynne Rienner, 2002); Kateri Carmola, Private Security Contractors and New Wars: Risk, Law, and Ethics (London: Routledge, 2010); Anna Leander, Eroding State Authority: Private Military Companies and the Legitimate Use of Force (Rome: Rubbetino, 2006); Andrew Alexandra, Deane-Peter Baker and Marina Caparini (eds.), Private Military and Security Companies: Ethics, Policies and Civil-Military Relations (London: Routledge, 2008); Alan Bryden and Marina Caparini (eds.), Private Actors and Security Governance

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rules to them, to illustrate the difculty of applying the state-centred rules of IHL to PMSCs. This book deals with the international legal framework and it attempts to apply it to PMSCs as they are. It does not deal with the domestic law of any state or with how international law should be developed to cover PMSCs more appropriately. For our research project PMSCs were, as war is for IHL, a reality. We wanted to apply international law to this reality. The outcome demonstrates beyond any doubt that PMSCs and their staff do not act, as some have claimed, in a legal black hole.3 While not in a legal vacuum, PMSCs operate, however, not only in armed conicts, a factual environment not very conducive to the respect of legal rules, but also in a very chaotic legal environment, made up of very diverse rules, addressed to various actors, which have not been made for PMSCs (but nevertheless cover them). This book maps the possible legal justications for the applicability of IHL, each one situationdependent and often subject to controversies. As for the substance of those rules of IHL, even when all relevant facts are known, it is often difcult to determine the direction for conduct that they give to PMSCs, in particular on the crucial issue of when force may be used against whom, as it lies at the intersection between the conduct of hostilities, criminal law self-defence and law enforcement. In addition, this problem is complicated by controversy over how similar the rules of IHL of international and of non-international armed conicts are on those issues and even if the rules were clear, the individual PMSC staff involved may not know the facts necessary for a determination. Contrary to other distinguished scholars, the authors conclude that PMSC staff are only rarely combatants because they do not belong in a ghting function to the contracting state. I agree. States, PMSCs themselves and critics from non-government organizations (NGOs) do not consider them to be combatants. If they are not combatants, they have no right to directly participate in hostilities and they lose protection as civilians if and for such time as they do so. This raises the highly controversial issue of which conduct constitutes direct participation in hostilities.

(Berlin: Lit Verlag, 2006); Thomas Jger and Gerhard Kmmel (eds.), Private Military and Security Companies: Chances, Problems, Pitfalls and Prospects (Wiesbaden: VS Verlag fr Sozialwissenschaften, 2007). This assertion was made in particular by Peter Singer. See his War, Prots, and the Vacuum of Law: Privatized Military Firms and International Law (2004) 42 Columbia J Transnl L.

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On this, the starting point of our research was the Interpretive Guidance on the notion of direct participation in hostilities, recently adopted by the International Committee of the Red Cross (ICRC).4 The authors, however, go beyond it and show its shortcomings concerning the most crucial, difcult and frequent situation that PMSC staff guard objects, transport or persons. I agree that if those persons and objects are not protected against attacks in IHL (that is, if they are combatants or civilians directly participating in hostilities), guarding or defending them against attacks constitutes direct participation in hostilities and not criminal law defence of others. This is always the case when the attacker is a person belonging to a party to the conict, even if he or she does not benet from or has lost combatant status. The unlawful status of the attacker does not trigger the right to self-defence of a civilian for the benet of combatants. If the person attacked and under the domestic legislation of some states even if the object attacked is civilian, criminal law self-defence may justify a use of force, even against combatants. The analysis is complicated by the absence of an international law standard of self-defence and defence of others, and by doubts whether the criminal law defence of self-defence, which avoids conviction may be used ex ante as a legal basis for an entire business activity. In my view, the authors suggest very nuanced, yet practical, solutions. The individual PMSC staff will often not know the facts that determine the legality of conduct in a certain situation. Therefore, our research leads to the recommendation that the use of force in defence of others and of property should be admitted only restrictively and only against direct attacks, not against the taking of control, arrest or capture, a distinction most often forgotten in scholarly writings. I equally share the conclusion that when PMSC staff are mandated with law enforcement tasks by a state, the normal IHL and human rights rules are applicable, but such law enforcement constitutes direct participation in hostilities if it is directed against armed groups or their members. Apart from these core issues of the IHL applicable to PMSCs and their staff and the reasons why it applies to them, the authors tackle many other legal issues arising from the intersection of IHL and PMSCs. The authors rst enquire whether and to what extent states may outsource the conduct of armed conicts to private companies. Even searching beyond IHL and including jus ad bellum in their enquiry, they found only a few explicit prohibitions on very specic activities. Some
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ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva: ICRC, 2009).

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treaties and arguably customary international law also prohibit states from using mercenaries, but the denition of mercenaries excludes most PMSC staff. Some implicit prohibitions of outsourcing are arguable. Good faith prohibits it if the specic intent is to avoid obligations and this book shows that such intent would be futile in most cases or to implement unlawful action. A state may not outsource the decision to exercise its right to selfdefence, but it may outsource the exercise of that right as long as it keeps sufcient control to ensure respect of the principles of necessity and proportionality. As for the UN and regional organizations, nothing fundamental hinders them, from a legal point of view, from outsourcing a lawful use of force, or, more realistically, from accepting PMSC action as a contribution by a state or from constituting a permanent force made up of PMSCs. IHRL arguably also does not prohibit outsourcing of law enforcement functions other than the administration of criminal justice, including the decision to arrest a person. However, the state must make sure that PMSCs to whom it outsources law enforcement action respect human rights to the same extent as if such action was taken by the state. The most crucial admissibility of outsourcing issue for this study is obviously whether a state may outsource the conduct of hostilities under IHL. We think there are serious reasons for a negative answer. While IHL arguably does not prohibit a civilian from directly participating in hostilities, we consider that if a state wants to respect in good faith the principle of distinction, it may not entrust civilians with conduct that constitutes direct participation in hostilities (which again shows the crucial importance of the concept of direct participation in hostilities for this book). In addition, a PMSC that is not sufciently integrated into the state organization could not know or be aware of elements necessary to evaluate such criteria as the military advantage anticipated from an attack. The latter argument also prevents a state from allowing a non-state actor to take some other decisions (such as whether imperative military necessity or security reasons require certain action). Secondly, still within the Westphalian system, the question arises of when a state is responsible for (or in relation to) PMSC conduct. A positive answer not only facilitates enforcement through the welldeveloped (but still basically non-hierarchical) mechanisms of implementation of international law, but it also implies that the rules of IHL fully apply (at least to the state in relation) to such conduct. PMSC staff are only very rarely state organs under domestic law. This study argues that PMSC staff may occasionally be so completely dependent on a state that their conduct is attributable to that state as a de facto organ. A state is furthermore responsible for conduct of PMSC staff if it

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delegates them not just public functions, but elements of governmental authority. Arguably such attribution does not presuppose a delegation by the domestic law of the state concerned. A state is furthermore responsible for PMSC conduct that occurs pursuant to its instructions or that is executed under its direction or control. If the overall-control standard developed by the International Criminal Tribunal for the Former Yugoslavia (ICTY) is sufcient, contracting states would very often be responsible for conduct incidental to the execution of the contract by PMSCs. However, there are good reasons to consider, along with the International Court of Justice (ICJ), that effective control is necessary for such attribution, which rarely exists and even more rarely can be proven. Even when PMSC conduct is not attributable to a state, a lack of due diligence (by state organs) may exist in relation with PMSC conduct. Such very variable due diligence obligations exist in the law of neutrality and in IHRL. In IHL, occupying powers have such due diligence obligations, and they also result from the many rules directing states to protect war victims. In addition, the obligation to ensure respect for IHL under Article 1 common to the Geneva Conventions may imply a general due diligence obligation for all states, but more particularly for states contracting PMSCs, host states of PMSCs and home states (in which the companies are registered or headquartered). Thirdly, if implementation is the weakest aspect of international law, and even more so of IHL in current armed conicts in which reciprocity is often irrelevant it is even more difcult to obtain from non-traditional addressees such as PMSCs, to whom the traditional mechanisms are not geared. The authors nevertheless briey review the normal mechanisms of implementation of state responsibility which may be used when PMSC conduct can be attributed to a state. However, we know that states only rarely use those mechanisms. Human rights protection mechanisms may therefore be more promising. The injured individual may invoke the responsibility of the state on the domestic level through domestic law or to the controversial extent international law gives a right to reparation to the individual. In any case, territorial states and home states may and should provide enforcement mechanisms for their obligations, and PMSCs obligations, in their domestic law, inter alia through registration and licensing systems. The PMSC itself may be criminally responsible in states that provide for corporate criminal responsibility, a concept that is still developing in international criminal law. Individual PMSC employees are however certainly criminally responsible for war crimes. The authors correctly remind us that IHL violations by PMSC staff may constitute torts

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under private law (which is more uncontroversial in civil law systems than in common law systems). Yet, they have to admit that court action by the victims may encounter the obstacle of immunities in the contracting state or the territorial state and jurisdictional obstacles in other states. Finally, self-regulatory mechanisms should include credible enforcement possibilities by an independent body and the possibility for individual victims of violations to trigger them. In conclusion, a PMSC is subject to IHL because its staff has to respect it, because a state is responsible for its conduct, and, in some cases and according to some theories, the PMSC is even itself an addressee of IHL. The main problems are that the status, rights and obligations of PMSC staff are not always clear to the PMSC and to the staff themselves and representatives of the industry have no interest in clarifying them because this could seriously limit their ability to provide security in conict areas. The most important problem, however, remains implementation: even where the rules and their applicability are uncontroversial, PMSC staff are often not adequately trained and supervised and if they commit violations, their prosecution often meets legal or factual obstacles or simply a lack of political will. I am convinced that this book claries many crucial legal issues, including some, which the industry and states did not want to clarify in recent soft-law instruments and codes of conduct, in particular the relationship between self-defence and direct participation in hostilities. I can only hope that government and PMSC lawyers, judges, prosecutors, humanitarian activists and defence lawyers will read this book. They will lose some preconceived ideas and gain some insight into questions that have been left vague up to now deliberately or not. This would, in the end, lead to a better respect for war victims by these actors who are increasingly important in armed conict, and who are not more or less prone to commit violations than state organs or members of non-state armed groups, but who, until now, were left in many respects in a legal fog. The authors have brought a lot of clarity into this picture, without claiming that clear solutions exist where states disagree or where sound legal arguments may support different approaches. In this respect, the book claries at least possible avenues, their advantages and disadvantages and limits the arguments which may be used under international law.
Marco Sassli, Professor of Public International Law and Director of the Department of Public International Law and International Organization of the University of Geneva

ACKNOWLEDGEMENTS

This book is the result of a research project funded by the Swiss National Science Foundation (Grant 116148) with the support of the Geneva Academy of International Humanitarian Law and Human Rights. As everyone who has ever written a book knows, producing an academic work is far from a lonely endeavour. In this case in particular, as this book is the nal product of a research project involving a number of people over several years, it was in many ways a collective effort. I owe no small debt of gratitude to many colleagues and friends. First and foremost, the intellectual and institutional support that Marco Sassli provided laid the foundations for this work and made it possible to see the project through to completion. His vision and his approach to IHL have inspired and underpinned this study in many ways, and his willingness and extraordinary ability to engage with the ner points of any legal argument have certainly improved this work. I cannot thank him enough for his commitment and dedication. It has been a delight, an honour and a privilege to work with him at the University of Geneva for a number of years. I am very grateful to Vincent Chetail for having initiated the project with Marco and for having included me in it. I have learned much through our fruitful collaboration. I would also like to thank very warmly Mamadou Hebi, Mary Picard and Rachid Fehri for their contributions to the study. In particular, Mamadous detailed research on state responsibility affected the analysis even if we did not necessarily concur in the result at the end of the day, I believe we all learned a great deal. I would also like to extend warm thanks to Yingqing Gong for revising the footnotes with skill and good humour, and to Armelle Vessier for graciously providing assistance with the Table of cases. To Mary-Louise Tougas I owe special thanks. Not only did she contribute generously to the research and much of the drafting with respect to international criminal law and civil responsibility, but her friendship,
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energy and sense of humour made the work fun. By the same token, my very good friend Julia Grignon provided unfailing moral support as well as an honest and reliable sounding board for all of my arguments and ideas. I am grateful to the anonymous reviewers for their very helpful suggestions and to Finola OSullivan at Cambridge University Press for her expertise and her support of this book. I thank Helen Francis and Sarah Roberts at Cambridge for kindly guiding us through the publication process and Henry Mitchell for tackling the index. A big thank you goes to Jeremy Langworthy for his eagle eye and for making the copyediting process thoroughly enjoyable. Finally, my family. Thanks go to my sister Margaret and brother-in-law Klaus, for their unstinting enthusiasm and excellent advice throughout. Last, but certainly not least, I thank Serge, Jules and Margot, whose love and support make it all worthwhile, and whose giggles and smiles keep it all in perspective. Lindsey Cameron The time has passed since I have contacted Marco Sassli in 2006 to initiate a common research project on PMSCs in IHL. This book would not have been possible without his constant and thorough dedication and support. I am also particulary grateful to the Swiss National Science Foundation which founded this research from 2007 to 2010. Supervising this project with Marco has been a very fruitful and inspiring experience. The long discussions we had were truly stimulating and fascinating, sometimes challenging but always respectful of diverging opinions. I have learned a lot from his vision of IHL. I would like to thank Lindsey Cameron whose invaluable expertise has proved to be crucial for completing the book. I have much appreciated our collaboration and I am happy to see that this research project has led her to continue with a PhD thesis on this intriguing topic. This collective endeavour has also been possible thanks to the thorough assistance of Mamadou Hebi, Mary Picard, Mary-Louise Tougas, Rachid Fehri, Yingqing Gong and Armelle Vessier. I am grateful to Professor Andrew Clapham and Professor Paola Gaeta for their enthusiasm and the institutional support they provided through the Geneva Academy of International Humanitarian Law and Human Rights. On a more personal plane, I would like to thank Cline, Edouard and Quentin for their support, patience and love. Vincent Chetail

TABLE OF CASES

International Court of Justice (ICJ) and Permanent Court of International Justice (PCIJ)
Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (The Peter Pzmny University v. Czechoslovakia) (Judgment) [1933] PCIJ Rep, Series A/B, no. 61 553 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) (Provisional Measures, Order of 15 October 2008) [2008] ICJ Rep 353 543 Armed Activities on the Territory of the Congo (Congo v. Uganda) (Merits) [2005] ICJ Rep 168 11, 33, 144, 149, 164, 16970, 213, 2378, 240, 465 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) (Judgment on Jurisdiction and Admissibility) [2006] ICJ Rep 6 543 Asylum case (Colombia v. Peru) (Merits) [1950] ICJ Rep 266 376 Avena and Other Mexican Nationals (Mexico v. United States of America) (Judgment) [2004] ICJ Rep 12 5534 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Judgment, Second Phase) [1970] ICJ Rep 3 210, 5412 Border and Transborder Armed Actions (Nicaragua v. Honduras) (Jurisdiction and Admissibility) (Judgment) [1988] ICJ Rep 69 128 Cameroon v. Nigeria (Preliminary Objections) [1998] ICJ Rep 275 128 Case Concerning East Timor (Portugal v. Australia) (Merits) [1995] ICJ Rep 90 542 Case Concerning Oil Platforms (Iran v. US) (Merits) [2003] ICJ Rep 161 14, 16 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Merits) [2007] ICJ Rep 43 13845, 2045, 212, 21822, 394 Case Concerning the Factory at Chorzw (Germany v. Poland) (Merits) [1928] PCIJ Rep, Series A, no. 17 555 Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) (Judgment) [1980] ICJ Rep 1 205, 226, 257 Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151 20, 26, 39

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table of cases

Certain German Interests in Polish Upper Silesia (Germany v. Polish Republic) (Merits) [1926] PCIJ Rep, Series A, no. 7 137 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) (Judgment) [2008] ICJ Rep 177 179 Corfu Channel (UK v. Albania) (Merits) [1949] ICJ Rep 4 2, 214, 227, 257 Jurisdiction of the Courts of Danzig (Pecuniary claims of Danzig railway ofcials who have passed into the Polish Service, against the Polish railways administration) (Advisory Opinion) [1928] PCIJ Rep, Series B, no. 15 3734, 554 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) (Judgment) 3 February 2012 552, 5601, 674 Jurisdictional Immunities of the State (Germany v. Italy) (Application of the Federal Republic of Germany) (December 2008) 560 Jurisdictional Immunities of the State (Germany v. Italy) (Counter claim: Order) ICJ 6 July 2010 552 LaGrand (Germany v. United States) (Merits) [2001] ICJ Rep 466 5534 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 11, 33, 232, 248, 377, 465, 491, 541, 555 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 102, 377, 465, 4901 Legality of the Use by a State of Nuclear Weapons in Armed Conict (WHO Case) (Advisory Opinion) [1996] ICJ Rep 66 293 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ Rep 14 1113, 137, 1445, 14951, 155, 157, 209, 21113, 215, 21819, 246, 248, 311, 348, 350, 3768, 394 Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America) (Preliminary Question) [1954] ICJ Rep 19 543 North Sea Continental Shelf cases (Germany v. Denmark and Germany v. Netherlands) [1969] ICJ Rep 3 72, 376 Nuclear Tests (Australia v. France) (Judgment) [1974] ICJ Rep 253 126, 3378 Nuclear Tests (New Zealand v. France) (Judgment) [1974] ICJ Rep 457 128, 3378 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174 31, 44, 292, 2956, 298 South West Africa, Second Phase (Liberia v. South Africa) (Judgment, Second Phase) [1966] ICJ Rep 6 542 The Case of the S.S. Lotus (Judgment) [1927] PCIJ Rep, Series A, no. 10 376 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 137

International Arbitral Awards


British Claims in the Spanish Zone of Morocco (1925) II RIAA 615 164 Charles S. Stephens and Bowman Stephens (USA) v. United Mexican States (1927) IV RIAA 265 146

table of cases

xxi

Earnshaw and ors (Great Britain) v. United States (1925) VI RIAA 160 (Zaro case) 206, 215, 220 Estate of Jean-Baptiste Caire (France) v. United Mexican States (1929) V RIAA 516 1589 Francisco Malln (United Mexican States) v. United States of America (1927) IV RIAA 173 159 Gertrude Parker Massey (USA) v. United Mexican States (1927) 4 RIAA 259 Island of Palmas (Netherlands/USA) (1928) 2 RIAA 829 227 Lehigh Valley Railroad Company and ors (USA) v. Germany (Sabotage cases): Black Tom and Kingsland incidents VIII RIAA 84 (1930) and 458 (1939) 206 Lehigh Valley Railroad I (United States v. Germany) (Sabotage cases) VIII RIAA 104 206 Lehigh Valley Railroad II (United States v. Germany) (Sabotage cases) VIII RIAA 225 206 LHF Neer and Pauline Neer (USA) v. United Mexican States (1926) 4 RIAA 60 252 Maffezini v. Spain (2001) 40 ILM 1142 148, 174 Partial Award Prisoners of War Eritreas Claim 17, Eritrea-Ethiopia Claims Commission (1 July 2003) 5256 Partial Award Prisoners of War Ethiopias Claim 4, Eritrea-Ethiopia Claims Commission (1 July 2003) 5256 Texaco Calasiatic v. Libyan Arab Republic (Merits) (1978) 17 ILM 137 297 Texaco-Calasiatic (Merits/Award) (1979) 53 ILR 389 73 Youmans (USA v. Mexico) (1926) 4 RIAA 110 258

International Criminal Court (ICC)


Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Pre-Trial Chamber I, Decision on the conrmation of charges) ICC-01/0401/07 (30 September 2008) 61112 Prosecutor v. Jean-Pierre Bemba Gombo (Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) ICC-01/0501/08 (15 June 2009) 612, 61819 Prosecutor v. Thomas Lubanga Dyilo (Pre-Trial Chamber I, Decision on the conrmation of charges) ICC-01/0401/06 (29 January 2007) 61113

International Criminal Tribunal for the Former Yugoslavia (ICTY)


Prosecutor v. Aleksovski (Appeals Chamber) IT-9514/1 (24 March 2000) 603 Prosecutor v. Aleksovski (Trial Chamber Judgment) IT-9514/1-T (25 June 1999) 331, 602, 616 Prosecutor v. Blagojevi and Joki (Appeal Chamber) IT-0260 (9 May 2007) 616 Prosecutor v. Blaki (Appeals Chamber Judgment) IT-9514-A (29 July 2004) 331, 603, 617

xxii

table of cases

Prosecutor v. Blaki (Trial Chamber Judgment) IT-9514-T (3 March 2000) 361, 602 Prosecutor v. Branin (Appeals Chamber, Decision on Interlocutory Appeal) IT-99 36-A (19 March 2004) 609 Prosecutor v. Branin (Trial Chamber Judgment) IT-9936-T (1 September 2004) 607 Prosecutor v. Delali (elebii case) (Appeal Chamber Judgment) IT-9621 (20 February 2001) 273, 401, 616 Prosecutor v. Delali (elebii case) (Trial Chamber Judgment) IT-9621-T (16 November 1998) 356, 602 Prosecutor v. Furundija (Appeal Judgment) IT-9517/1-A (21 July 2000) 528 Prosecutor v. Furundija (Trial Chamber Judgment) IT-9517/1-T (10 December 1998) 331, 528, 6024 Prosecutor v. Gali (Trial Chamber Judgment) IT-9829-T (5 December 2003) 404, 443 Prosecutor v. Hadihasanovi (Trial Chamber Judgment) IT-0147-PT (12 November 2002) 61516 Prosecutor v. Haradinaj and ors (Trial Chamber, Judgment) IT-0484-T (3 April 2008) 314 Prosecutor v. Jelisi (Trial Chamber Judgment) IT 9510-T (14 December 1999) 361 Prosecutor v. Kordi and erkez (Trial Chamber III, Decision of the joint defence motion to dismiss the amended indictment for lack of jurisdiction based on the limited jurisdictional reach of Articles 2 and 3) IT-9514/2-PT (2 March 1999) 356 Prosecutor v. Kordi and erkez (Trial Chamber Judgment) IT-9514/T-2 (26 February 2001) 2734, 356, 600, 616, 619 Prosecutor v. Krsti (Trial Chamber) IT-9833 (2 August 2001) 599600, 607, 609 Prosecutor v. Kunarac (Appeal Judgment) IT-9623 (12 June 2002) 528 Prosecutor v. Kunarac, Kova and Vukovi (Trial Chamber Judgment) IT-9623 and 23/1 (22 February 2001) 333, 602, 619 Prosecutor v. Kvoka (Appeal Judgment) IT-9830/1-A (28 February 2005) 528, 6089 Prosecutor v. Kvoka (Trial Chamber Judgment) IT-9830/1-T (2 November 2001) 601, 6089 Prosecutor v. Limaj (Trial Chamber Judgment) IT-0366-T (30 November 2005) 6089 Prosecutor v. Mrki and ljivananin (Appeals Chamber Judgment) IT-9513/1-A (5 May 2009) 112 Prosecutor v. Naletili and Martinovi (Trial Chamber Judgment) IT-9834-T (31 March 2003) 602 Prosecutor v. Staki (Appeal Judgment) IT-9724 (22 March 2006) 607, 609 Prosecutor v. Staki (Trial Chamber Judgment) IT-9724 (31 July 2003) 607, 609 Prosecutor v. Strugar (Appeal Judgment) IT-0142 (17 July 2008) 41415, 443 Prosecutor v. Tadi (Appeals Chamber Judgment) IT-941-A (15 July 1999) 143, 211, 21719, 243, 421, 607 Prosecutor v. Tadi (Trial Chamber) IT-941 (7 May 1997) 144, 2212, 328, 6023

table of cases

xxiii

Prosecutor v. Tadi (Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-941 (2 October 1995) 65, 314, 356, 360, 3778, 394 Prosecutor v. Vasiljevi (Trial Chamber) IT-9832 (29 November 2002) 6023

International Criminal Tribunal for Rwanda (ICTR)


Prosecutor v. Akayesu (Appeals Chamber Judgment) ICTR-964-A (1 June 2001) 81, 360 Prosecutor v. Akayesu (Trial Chamber Judgment) ICTR-964-T (2 September 1998) 328, 331, 6001 Prosecutor v. Bagilishema (Trial Chamber) ICTR-951A (7 June 2001) 6023, 605 Prosecutor v. Karemera and ors (Appeal Chamber Decision on Jurisdictional Appeals: Joint Criminal Enterprise) ICTR-9844 (12 April 2006) 609 Prosecutor v. Kayishema and Ruzindana (Trial Chamber) ICTR-951-T (21 May 1999) 602 Prosecutor v. Mpambara (Trial Chamber Judgment) ICTR-0165-T (11 September 2006) 607 Prosecutor v. Musema (Trial Chamber Judgment) ICTR-9613-A (27 January 2000) 61617, 62122 Prosecutor v. Muvunyi (Appeals Chamber) ICTR-0055A-A (29 August 2008) 605 Prosecutor v. Ntagerura and ors (Trial Chamber Judgment) ICTR-9946-T (25 February 2004) 617 Prosecutor v. Ntakirutimana (Appeal Chamber) ICTR-9610 (13 December 2004) 604, 607 Prosecutor v. Ori (Trial Chamber) IT-0368 (30 June 2006) 600, 617 Prosecutor v. Rwamakuba (Appeal Chamber, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide) ICTR9844-AR72.4 (22 October 2004) 607 Prosecutor v. Semanza (Trial Chamber) ICTR-9720 (15 May 2003) 599, 6012, 604 5, 61617 Prosecutor v. Simba (Trial Chamber Judgment) ICTR-0176-T (13 December 2005) 607

United Nations Human Rights Committee (UN HRC)


Baboeram-Adhin and ors v. Suriname, CCPR/C/24/D/146/1983 (1985) 505 Blanco v. Nicaragua, Comm. no. 328/1988, UN Doc CCPR/C/51/D/328/1988 (1994) 518 Bolaos v. Ecuador, Comm. no. 238/1987, UN Doc Supp. no. 40 (A/44/40) (1989) 517 Cabal and Pasini v. Australia, Comm. no. 1020/2001, 7 August 2003, UN Doc CCPR/ C/78/D/1020/2001 119, 124, 165, 262, 520

xxiv

table of cases

Caldas v. Uruguay, Comm. no. 43/1979, Views of 21 July 1983, UN Doc Supp. no. 40 (A/38/40) 520 Domukovsky and ors v. Georgia, Comm. nos. 623, 624, 626, 627/1995, UN Doc CCPR/ C/62/D/623, 624, 626 & 627/1995 517 Filastre v. Bolivia, Comm. no. 336/1988, Views of 6 November 1991, UN Doc CCPR/C/ 43/D/336/1988 520 Freemantle v. Jamaica, Comm. no. 625/1995, Views of 28 April 2000, UN Doc CCPR/ C/68/D/625/1995 5201 Gordon v. Jamaica, Comm. no. 237/1987, UN Doc CCPR/C/46/D/237/1987 (1992) 460 Grant v. Jamaica, Comm. no. 597/1994, Views of 22 March 1996, UN Doc CCPR/C/56/ D/597/1994 (1996) 5201 Jaime Carpo v. Philippines, Comm. no. 1077/2002, CCPR/C/77/D/1077/2002, 15 May 2003 458 Kurbanov v. Tajikistan, Comm. no. 1096/2002, Views of 12 November 2003, UN Doc CCPR/C/79/D/1096/2003 520 Lindgren and ors v. Sweden, Comm. no. 298299/88, Views adopted on 9 November 1990 262 Marieta Tern Jijn v. Ecuador, Comm. no. 277/1988, Views of 8 April 1992, UN Doc CCPR/C/44/D/277/1988 521 Mpandanjila and ors v. Zaire, Comm. no. 138/1983, UN Doc Supp. no. 40 (A/41/40) (1986) 518 Mukong v. Cameroon, Comm. no. 458/1991, UN Doc CCPR/C/51/D/458/1991 (1994) 51718 Stephens v. Jamaica, Comm. no. 373/1989, Views of 18 October 1995, UN Doc CCPR/ C/55/D/373/1989 521 Suarez de Guerrero v. Colombia, Comm. no. R.11/45, Views of 31 March 1982, UN Doc Supp. no. 40 (A/37/40) 501, 503, 506 Thompson v. St Vincent and the Grenadines, Comm. no. 806/1998, CCPR/C/70/D/806/ 1998, 5 December 2000 458 Van Alphen v. The Netherlands, Comm. no. 305/1988, Views of 15 August 1990, UN Doc CPR/C/39/D/305/1988 (1990) 517

African Commission on Human and Peoples Rights (ACHPR)


Annette Pagnoulle (on behalf of Abdoulaye Mazou) v. Cameroon (Comm. no. 39/90) 1997 518 Commission Nationale des Droits de lHomme et des Liberts v. Chad (Comm. no. 74/ 92) 1995 503, 513 Organisation Mondiale Contre La Torture and ors v. Rwanda (Comm. nos. 27/89, 46/ 91, 49/91, 99/93) 1996 517 Malawi African Association and ors v Mauritania (Comm. nos. 54/91, 61/91, 98/93, 164196/97, 210/98) 11 May 2000 200

table of cases

xxv

European Court of Human Rights (ECtHR)


A and ors v. UK (App. no. 3455/05) (Judgment) (GC) ECHR 19 February 2009 518 A v. UK (App. no. 25599/94) ECHR 1998-VI 2523 Ahmet zkan and ors v. Turkey (App. no. 21689/93) (Judgment) ECHR 6 April 2004 503 Aksoy v. Turkey (App. no. 21987/93) (Judgment) ECHR 18 December 1996 514, 51617, 521 Al-Saadoon and Mufdhi v. UK (App. no. 61498/08) (Admissibility) ECHR 30 June 2009 234 Amuur v. France (App. no. 19776/92) ECHR 25 June 1996 517 Bankovi v. Belgium (App. no. 52207/99) (Admissibility) ECHR 2001-XII 2335, 251 Behrami v. France and Saramati v. Norway (App. nos. 71412/01 and 78166/01) (Admissibility) (GC) ECHR 2 May 2007 37 Boivin v. 34 States of the Council of Europe (App. no. 73250/01) ECHR 9 September 2008 263 Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland (App. no. 45036/ 98) (GC) ECHR 2005-VI 263 Brannigan and McBride v. UK (App. nos. 14553/89 and 14554/89) (Judgment) ECHR 26 May 1993 514, 516, 5212 Brogan and ors v. UK (App. nos. 11209/84, 11234/84 and 11266/84) (Judgment) ECHR 29 November 1988 521 Broniowski v. Poland (App. no. 31443/96) (GC) ECHR 2004-V 253 Cabaa v. Poland (App. no. 23042/02) (Judgment) ECHR 8 August 2006 460 Cakici v. Turkey (App. no. 23657/94) (Judgment) ECHR 8 July 1999 522 Costello-Roberts v. UK (App. no. 13134/87) (Judgment) (1993), Series A, no. 247-C 262 Cudak v. Lithuania (App. no. 15869/02) (Judgment) ECHR 23 March 2010 179, 181, 188 Cyprus v. Turkey (App. no. 25781/94) (Merits) ECHR 2001-IV 231 Editions Priscope v. France (App. no. 11760/85) (1992) ECHR, Series A, no. 234-B 186 Erdem v. Germany (App. no. 38321/97) (Judgment) ECHR 5 July 2001 523 Erdogan and ors v. Turkey (App. no. 19807/92) ECHR 25 April 2006 505, 508 Ergi v. Turkey (App. no. 23818/94) (Judgment) ECHR 28 July 1998 503 Fox, Campbell and Hartley v. UK (App nos 12244/86, 12245/86 and 12383/86) (Judgment) ECHR 30 August 1990 519 Frydlender v. France (App. no. 30979/96) (27 June 2000) ECHR 2000-VII 186 Gulec v. Turkey (App. no. 21593/93) ECHR 1998-IV 5078, 510 Gustafsson v. Sweden (App. no. 15573/89) ECHR Reports 1996-II 185 HLR v. France (App. no. 24573/94) ECHR 1997-III 758 528 Ilhan v. Turkey (App. no. 22277/93) (Judgment) ECHR 27 June 2000 507 Ireland v. UK (App. no. 5310/71) (Judgment) ECHR 18 January 1978 519

xxvi

table of cases

Isayeva v. Russia (App. no. 57950/00) (Judgment) ECHR 24 February 2005 500, 503, 507 Issa and ors v. Turkey (App. no. 31821) (Merits) ECHR 16 November 2004 233 Istratii v. Moldova (App. nos. 8721/05, 8705/05 and 8742/05) (Judgment) ECHR 27 March 2007 523 Kakoulli v. Turkey (App. no. 38595/97) (Judgment) ECHR 22 November 2005 5035 Khatsiyeva and ors v. Russia (App. no. 5108/02) (Judgment) ECHR 17 January 2008 500, 503, 507 Kilic v. Turkey (App. no. 22492/93) ECHR 2000-III 258 Loizidou v. Turkey (App. no. 15318/89) (Merits) ECHR 1996-VI 2216 231, 311 Magee v. UK (App. no. 28135/95) (Judgment) ECHR 6 June 2000 522 Mahmut Kaya v. Turkey (App. no. 22535/93) ECHR 2000-III 258 Makaratzis v. Greece (App. no. 50385/99) (Judgment) (GC) ECHR 20 December 2004 252, 504 Mansurolu v. Turkey (App. no. 43443/98) (Judgment) ECHR 26 February 2008 5001, 510 Marckx v. Belgium (App. no. 6833/74) (1979) ECHR, Series A, no. 31 252 Mastromatteo v. Italy (App. no. 37703/97) (GC) ECHR 2002-VIII 2578 Matthews v. UK (App. no. 24833/94) (GC) (Merits) ECHR 1999-I 263 McCann v. UK (App. no. 18984/91) (GC) (1995), Series A, no. 324 26970, 5068 MN v. Bulgaria (App. no. 29785/96) (Decision on Admissibility) ECommHR 4 September 1996 185 Murray v. UK (App. no. 14310/88) (Judgment) ECHR 28 October 1994 519 Nachova and ors v. Bulgaria (App. no. 43577/98 and 43579/98) (Judgment) (GC) ECHR 6 July 2005 504, 507 Nuray Sen v. Turkey (App. no. 41478/98) (Judgment) ECHR 17 June 2003 514, 521 calan v. Turkey (App. no. 46221/99) (Judgment) ECHR 21 May 2005 5212 Olujic v. Croatia (App. no. 22330/05) ECHR 5 February 2009 187 Oneryildiz v. Turkey (App. no. 48939/99) (GC) ECHR 2004-XII 460 Osman v. UK (App. no. 23452/94) (GC) ECHR 1998-VIII 231, 257, 459 Pad v. Turkey (App. no. 60167/00) (Admissibility) ECHR 28 June 2007 234, 500 Pellegrin v. France (App. no. 28541/95) ECHR 1999-VIII 1868 Pitkevich v. Russia (App. no. 47936/99) (Admissibility) ECHR 8 February 2001 187 Pretty v. UK (App. no. 2346/02) (Judgment) ECHR 29 April 2002 502 Pridatchenko and ors v. Russia (App. nos. 2191/03, 3104/03, 16094/03 and 24486/03) ECHR 21 June 2007 187 Saadi v. UK (App. no. 13229/03) (Judgment) ECHR 11 July 2006 520 Salduz v. Turkey (App. no. 36391/92) (Judgment) ECHR 27 November 2005 522 Samokhvalov v. Russia (App. no. 3891/03) (Judgment) ECHR 12 February 2009 460 Selmouni v. France (App. no. 25803/94) ECHR 1999-V 3089 Stewart v. UK (App. no. 10044/82) (Decision on Admissibility) ECommHR 10 July 1984 507

table of cases

xxvii

Streletz, Kessler and Krenz v. Germany (App. nos. 34044/96, 35532/97 and 44801/98) (Judgment) ECHR 22 March 2001 502 Van der Leer v. The Netherlands (App. no. 11509/05) (Judgment) ECHR 12 February 1990 519 Van der Mussele v. Belgium (App. no. 8919/80) (1983), Series A, no. 70 262 Vilho Eskelinen v. Finland (App. no. 63235/00) ECHR 17 April 2007 187 Waite and Kennedy v. Germany (App. no. 26083/94) ECHR 1999-I 263 Whiteld and ors v. UK (App. nos. 46387/99, 48906/99 and 57419/00) ECHR 12 April 2005 117, 125, 569

Inter-American Commission on Human Rights (IACHR)


Abella (Juan Carlos) v. Argentina, Report no. 55/97, Case no. 11.137, Argentina, OEA/ ser/L/V/II.98, 18 November 1997 500, 568 Alejandro v. Cuba, Case no. 11.589, Report no 86/99, 29 September 1999 2334 Application to the Inter-American Court of Human Rights in the Case of Jesus Tranquilino Vlez Loor v. Panama, Case 12.581 (8 October 2009) 569 Davila v. Peru, Case 10.491, Report no. 41/97, OEA/Ser.L/V/II.95 Doc. 7 rev. at 736 (1997) 504 Coard and ors v. United States, Report no. 109/99, Case no. 10.951, 29 September 1999 568 Guatemala, Petition 11/382, Finca La Exacta, Report no. 57/02, 21 October 2002 509 McKenzie and ors v. Jamaica, Report no. 41/00, Cases 12.023 (etc) 13 April 2000 5201 Riofro Massacre (Colombia), Report no. 62/01, Case no. 11.654, 6 April 2001, OEA Ser. L/V/II.111, Doc 20 Rev. (2000) 568

Inter-American Court of Human Rights (IACtHR)


Balden-Garca v. Per, Judgment, Series C, no. 147, 6 April 2006 504 Bmaca Velzquez v. Guatemala, Judgment, Series C, no. 70, 25 November 2000 491, 567 Blake v. Guatemala, Judgment, Series C, no. 36, 24 January 1998 147, 149 Caracazo v. Venezuela, Judgment, Series C, no. 95, 29 August 2002 505 Castillo Petruzzi and ors v. Peru, Judgment, Series C, no. 52, 30 May 1999 521 Gangaram Panday case, Judgment, Series C, no. 16, 21 January 1994 517 Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory Opinion OC-8/87, 30 January 1987 510 Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights Advisory Opinion), OC-9/87, 6 October 1987 516 Las Palmeras case. Preliminary Objections, Judgment, Series C, no. 67, 4 February 2000 491 Las Palmeras case, Judgment, Series C, no. 90, 6 December 2001 568 Montero-Aranguren and ors (Dention Center of Catia) v. Venezuela, Judgment, Series C, no. 150, 5 July 2006 508

xxviii

table of cases

Pueblo Bello Massacre v. Columbia, Judgment, Series C, no. 140, 31 January 2006 504 Sanchez (Juan Humberto) v. Honduras, Judgment, Series C, no. 99, 7 June 2003 520 Serrano-Cruz Sisters v. El Salvador, Judgment, Series C, no. 118, 23 November 2004 491 Velsquez Rodrguez v. Honduras, Judgment, Series C, no. 4, 29 July 1988 158, 231, 2512 Zambrano Vlez and ors v. Ecuador, Judgment, Series C, no. 166, 4 July 2007 5045

European Court of Justice (ECJ)


Case C-114/97, EC Commission v. Spain [1999] 2 CMLR 701 121 Case C-355/98 EC Commission v. Belgium [2000] 2 CMLR 357 121, 189 Case 149/79 Commission v. Belgium [1980] ECR III-3881 187 Case C-283/99, Commission of the European Communities v. Italy [2001] 31 May 2001 189, 201 Case C-465/05, Re Private Security Guards: Commission of the European Communities v. Italy [2008] 2 CMLR 3 115, 121, 189 Case C-473/93, European Commission v. The Grand Duchy of Luxembourg [1996] ECR I-3248 188 Joined Cases 154, 205, 206, 226 to 228, 263 and 264/78, 39, 31, 83 and 85/79, Valsabbia and ors v. Commission of the European Union [1980] ECR 458

Iran-US Claims Tribunal


Alfred Short v. Iran (1987) 16 Iran-USCTR 76 206 American Bell International Inc. v. Islamic Republic of Iran (1986) 12 Iran-USCTR 210 Daley v. Islamic Republic of Iran (1988) 18 Iran-USCTR 232 148, 160 Foremost Tehran Inc. v. Islamic Republic of Iran (1986) 10 Iran-USCTR 210 Hyatt International Corporation v. Government of the Islamic Republic of Iran (1985) 9 Iran-USCTR 72 200 Lilian Grimm v. Iran, 16 Iran-USCTR 221 Petrolane, Inc. v. The Government of the Islamic Republic of Iran (1991) 27 Iran-USCTR 64 158 Rankin v. Islamic Republic of Iran (1987) 17 Iran-USCTR 135 200 Yeager v. Islamic Republic of Iran (1987-IV) 17 Iran-USCTR 92 165, 169, 175, 2001

DOMESTIC CASES BY COUNTRY Austria


Flughafen Linz (Airport Linz v. United States of America), Supreme Court of Austria, 2 Ob 156/037, 28 August 2003 (2003) 8 Austrian Rev Intl and European L 182, 199

table of cases

xxix

Canada
Bilin (Village Council) and ors v. Green Park International inc. and ors, Superior Court of Quebec, no. 50017044030081, 18 September 2009 637, 652 Recherches International du Quebec v. Cambior inc., CS [1998] QJ no. 2554 (QL) 651

France
Affaire Blanco, Tribunal des Conits, 8 February 1873, CA, no. 1 190 M. A et consorts Lipietz v. Prfet de la Haute-Garonne et Socit nationale des chemins de fer franais, no. 0104248, Tribunal administrative de Toulouse, 6 June 2006 642, 650 Socit nationale des chemins de fer v. MM. Georges Lipietz et S., Cour administrative dAppel de Bordeaux, no. 06BX01570, 27 March 2007 643, 650

Germany
BGH, Distomo, NJW 2003, 3488, 3491 552 Church of Scientology (1978) 65 ILR 193 (Federal High Court of Germany (Bundesgerichtshof) 182 Higher Administrative Court Mnster, III A 1279/51, NJW 1952 556

Greece
Prefecture of Voiotia v. Federal Republic of Germany, Case no. 11/2000 (4 May 2000) Areios Pagos (Supreme Court) 552

Ireland
Schmidt v. Home Secretary of the Government of the United Kingdom [1997] 2 IR 121 182

Israel
Public Committee against Torture in Israel v. Government of Israel and ors, HCJ 769/02, 14 December 2006 414, 424

Italy
Ferrini v. Federal Republic of Germany, Court of Cassation, 11 March 2004 (Judgment no. 5044/2044) 552 Markovi, Court of Cassation (Plenary Session), 5 June 2002 (no. 8157) 5612

Japan
Tokyo District Court, December 7, 1963, Case no. 2914 (wa) of 1955 553, 562 Tokyo District Court, Case no. 4177 (wa) of 1957 553, 562 X and ors v. The United States of America, Supreme Court of Japan, 14 March 2002, Hanrei Jihou no. 1786, 2002 (2003) 182

xxx

table of cases

X and ors v. State of Japan, Judgment, 30 November 1998; HT (991) 262 [1999] 550 X and ors v. State of Japan, Judgment, 7 August 1996, repr. (1996) 39 Japanese Annual Intl L 11617 550

Netherlands
Case of Frans van Anraat, The Hague District Court, Judgment, 23 December 2005 6067 Case of Frans van Anraat, The Hague Court of Appeal, Judgment, 22.00050906, 9 May 2007 6067 Case of Kouwenhoven, Judgment, 09/75000105, 7 June 2006 606 Public Prosecutor v. Menten, Dutch Supreme Court, decision of April 10th 1986 (1987) 75 ILR 1468, 160 Court of The Hague, Case no./docket no.: 330891/HA ZA 09579, Judgment in motion contesting jurisdiction of 30 December 2009 636, 650

United Kingdom
A and ors v. Secretary of the State for the Home Department [2004] UKHL 56 518 Connelly v. R.T.Z. Corporations plc [1997] 4 All ER 335 652 Connelly v. R.T.Z. Corp. plc and anor [1999] CLC 533 652 Lubbe v. Cape plc [1998] EWCA Civ 1351 (30 July 1998) 652 Lubbe v. Cape plc [2000] 4 All ER 268 652 R v. Williams (Gladstone) [1984] 78 Cr App R 276 462, 464 X and anor v. Secretary of State for the Home Department [2004] UKHL 56 518

United States
Abdullahi v. Pzer, Inc., 562 F 3d 163 (2nd Cir 2009) 630, 651 Al Quraishi v. L-3 Services Inc. (4th Cir 2011) 660 Al Quraishi v. Nakhla, 728 F Supp 2d 702 (D Md 2010) 560, 562, 630, 636, 6412, 6578, 6601 Al Shimari v. CACI Premier Technology, Inc., 657 F Supp 2d 700 (ED Va 2009) 634, 636, 6578, 660 Al-Bihani v. Obama, 590 F 3d 866 (5 January 2010) 369, 372 Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F 3d 1283 (CA 11 Fla 2009) 650 Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F 3d 1242 (11th Cir 2005) 631, 641 Alperin v. Vatican Bank, 410 F 3d 532 (9th Cir 2005) 656 American Isuzu Motors, Inc. v. Ntsebeza, 553 US 1028 (2008) 645 Arias v. Dyncorp, 517 F Supp 2d 221 (DDC 2007) 635 Baker v. Carr, 369 US 186, 82 S Ct. 691 (US Tenn 1962) 6534 Bowoto v. Chevron Corporation, 14 August 2007 (not reported in F Supp 2d) 2007 WL 2349336 (ND Cal) 630, 637

table of cases

xxxi

Bowoto v. Chevron Corporation, 2006 US Dist LEXIS 63209 (ND Cal 21 August 2006) 640, 646 Bowoto v. Chevron Texaco Corporation, 312 F Supp 2d 1229 (ND Cal 2004) 342, 630 Bowoto v. Chevron, 621 F 3d 1116 (9th Cir 2010) 631, 638 Burnett v. Al Baraka Investment and Development Corporation, 274 F Supp 2d 86 (DDC 2003) 630 Cabello Barrueto v. Fernandez Larios 205 F Supp 2d 1325 (SD Fla 2002) 647 Cabello v. Fernandez-Larios, 402 F 3d 1148 (11th Cir 2005) 647 Carmichael v. Kellogg, Brown & Root Services Inc., 572 F 3d 1271 (11th Cir 2009) 6568 Corrie v. Caterpillar, Inc., 503 F 3d 974 (9th Cir 2007) 656 Doe I v. Unocal Corp., 395 F 3d 932 (9th Cir 2002) 332, 630, 6334, 6435 Doe I v. Unocal, 248 F 3d 915 (9th Cir 2001) 649 Doe I v. Unocal, 27 F Supp 2d 1174 (CD Cal 1998) 649 Doe v. Exxon Mobil Corp., 393 F Supp 2d 20 (DC 2005) 641 Estate of Rodriguez v. Drummond Co. Inc., 256 F Supp 2d 1250 (ND Ala 2003) 636 Fidelity Bank plc v. N. Fox Shipping N.V., 242 Fed Appx 84 (4th Cir 2007) 653 Filrtiga v. Pea-Irala, 630 F 2d 876 (CANY 1980) 3412, 62931 Forti v. Suarez-Mason, 672 F Supp 1531 (ND Cal 1987) 630 Foster & Elam v. Neilson, 27 US 2 Pet 253 (1829) 36773 Goldstar (Panama) S.A. v. United States, 967 F 2d 965 (1992) 551 Hamdan v. Rumsfeld 548 US 557 (2006) 36972, 647 Hamdan v. Rumsfeld, 344 F Supp 2d 152 (DDC 2004) 36972 Hamdan v. Rumsfeld 415 F 3d 33 (2005) 36972 Hamdi v. Rumsfeld, 316 F 3d 450 (4th Cir 2003) 36972, 551 Handel v. Artukovic, 601 F Supp 1421 (DC C Cal 1985) 551 Hilao v. Estate of Ferdiand Marcos, 103 F 3d 767 (9th Cir 1996) 647 Ibrahim v. Titan Corp., 556 F Supp 2d 1 (DDC 2007) 642, 659 Ibrahim v. Titan Corp., 391 F Supp 2d 10 (DDC 2005) 635, 639, 659 In re Agent Orange Product Liability Litigation, 373 F Supp 2d 7 (EDNY 2005) 635 In re South African Apartheid Litigation, 617 F Supp 2d 228 (SD NY 2009) 630, 634, 638, 647, 655 In re South African Apartheid Litigation, 346 F Supp 2d 538 (SD NY 2004) 630, 634, 655 In re XE Services Alien Tort Litigation, 665 F Supp 2d 569 (EDVa 2009) 634, 636, 642, 653, 656, 658 In re Yamashita, 327 US 1, 66 SCt 340 (US 1946) 614 Iwanowa v. Ford Motor Company, 67 F Supp 2d 424, DCNJ (1999) 342 Kadic v. Karadzi, 70 F 3d 232 (2nd Cir 1995) 310, 342, 6301, 633, 639, 647, 656 Kasky v. Nike Inc., 27 Cal 4th 939 (2002) 338 Khulumani v. Barclay National Bank Ltd, 504 F 3d 254 (2nd Cir 2007) 630, 6345, 643, 6456 Kiobel v. Royal Dutch Petroleum Co., 621 F 3d 111 (2nd Cir 2010) 343, 629, 6356, 638, 641

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table of cases

Koohi v. US, 976 F 2d 1328 (9th Cir 1992) 659 Lane v. Halliburton, 529 F 3d 548 (5th Cir 2008) 656 Lemon v. State, 868 NE 2d 1190 (Ind Ct Appeal 2007) 115 Linder v. Calero Portocarrero, 747 F Supp 1452, 1463 (SD Fla 1990), revd, 963 F 2d 332 (11th Cir 1992) 356 McMahon v. Presidential Airways Inc., 502 F 3d 1331 (11th Cir 2007) 6567 Mujica v. Occidental Petroleum Corporation, 381 F Supp 2d 1164 (CD Cal 2005) 641 Nike, Inc. v. Kasky, 539 US 654 (2003) 338 Nordan v. Blackwater Security Consulting, LLC, 382 F Supp 2d 801 (EDNC 2005) 627 Peoples v. CCA Detention Centers, 422 F 3d 1090 (10th Cir 2005) 124 Potts v. Dyncorp Intl LLC, 465 F Supp 2d 1245 (MD Ala 2006) 6567 Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F Supp 2d 289 (SDNY 2003) 342, 6334, 646 Presbyterian Church of Sudan v. Talisman Energy, Inc., 374 F Supp 2d 331 (SDNY 2005) 634 Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F 3d 244 (2nd Cir 2009) 630, 634, 639, 6467 Respublica v. De Longchamps, 1 Dall 111 (1784) 382 Saleh v. Titan Corp., 580 F 3d 1 (CADC 2009) 632, 65960 Sarei v. Rio Tinto plc, 487 F 3d 1193 (9th Cir 2007) 654 Sarei v. Rio Tinto plc, 456 F 3d 1069 (9th Cir 2006) 342 Sarei v. Rio Tinto plc, 221 F Supp 2d 1116 (CD Cal 2002) 630, 654 Sequihua v. Texaco, 847 F Supp 61 (SD Tex 1994) 6501 Sosa v. Alvarez-Machain, 524 US 692, 124 S Ct 2739 (US 2004) 342, 62931, 634, 636, 6401, 643, 646 Tel-Oren v. Libyan Arab Republic, 726 F 2d 774 (DC Cir 1984) 356 US v. Slough, 679 F Supp 2d 55 (DDC 2010) 625 US v. Slough, 677 F Supp 2d 112 (DDC 2009) 624 US ex rel. DRC, Inc. v. Custer Battles, LLC, 562 F 3d 295 (4th Cir 2009) 662 US ex rels Melan Davis and ors v. Erik Prince and ors, 2010 WL 2679762 (2 July 2010) 662 US v. Jeremy P Ridgeway, Factual Proffer in Support of Guilty Plea, US District Court, DC, 18 November 2008 106 US v. Lindh, 212 F Supp 2d 541 (11 July 2002) 369, 3713 US v. Percheman, 32 US 7. Pet. 51 (1833) 368 Vietnam Assn for Victims of Agent Orange v. Dow Chemical Co., 517 F 3d 104 (2nd Cir 2008) 660 Whitaker v. Kellogg, Brown & Root, Inc., 444 F Supp 2d 1277 (MD Ga 2006) 6567 Wiwa v. Royal Dutch Petroleum Co., 226 F 3d 88 (2nd Cir 2000) 342, 630, 64950 Wiwa v. Royal Dutch Petroleum, 1998 US Dist LEXIS 23064 (SDNY 1998) 649 Wiwa v. Shell Petroleum Development Co. of Nigeria Ltd, 335 Fed Appx 81 (2nd Cir 2009) 634

ACRONYMS

ACHPR AChHPR AJIL AP I

AP II

ASR ATCA ATS AU BAPSC CPA CUDIH DoD ECHR ECtHR ECJ EJIL EO EU FMAA FRY GATS GC I GC II GC III

African Commission on Human and Peoples Rights African Charter on Human and Peoples Rights American Journal of International Law Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conicts, 1125 UNTS 3 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conicts, 8 June 1977 Articles on State Responsibility Alien Tort Claims Act Alien Tort Statute African Union British Association of Private Security Companies Coalition Provisional Authority (Iraq) Centre Universitaire de Droit International Humanitaire Department of Defense European Convention on Human Rights European Court of Human Rights European Court of Justice European Journal of International Law Executive Outcomes European Union Foreign Military Assistance Act Federal Republic of Yugoslavia General Agreement on Trade in Services Geneva Convention I for the amelioration of the condition of the wounded and sick in armed forces in the eld, 12 August 1949 Geneva Convention II for the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea, 12 August 1949 Geneva Convention III relative to the treatment of prisoners of war, 12 August 1949

xxxiii

xxxiv
GC IV

table of acronyms

Geneva Convention IV relative to the protection of civilian persons in time of war, 12 August 1949 HPCR Harvards Program on Humanitarian Policy and Conict Research HRC Human Rights Committee IACHR Inter-American Commission on Human Rights IACtHR Inter-American Court of Human Rights ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ICRC International Committee of the Red Cross ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IHL International Humanitarian Law IHRL International Human Rights Law ILA International Law Association ILC International Law Commission ILO International Labour Organization IMT International Military Tribunal IPOA/ISOA International Stability Operations Association ISAF International Security Assistance Force ITAR International Trafc in Arms Regulations JCE Joint Criminal Enterprise JICJ Journal of International Criminal Justice KFOR Kosovo Force MNC Multinational Corporation NATO North Atlantic Treaty Organization NGO Non-government Organization OAU Organization of African Unity OECD Organization for Economic Co-operation and Development ONUC United Nations Operation in the Congo PASA Pan-African Security Association PCIJ Permanent Court of International Justice PMC Private Military Company PMSC Private Military and/or Security Company POW Prisoner of War PSC Private Security Company PSCAI Private Security Company Association for Iraq SOFA Status of Forces Agreement SRSG Special Representative of the Secretary-General UCLA Unilaterally Controlled Latino Assets UDHR Universal Declaration of Human Rights

table of acronyms
UN UNCC UN DFS UN DPKO UNGA UNHCR UNSC UNSG WTO YBILC United Nations United Nations Compensation Commission United Nations Department of Field Support United Nations Department of Peacekeeping Operations United Nations General Assembly United Nations High Commissioner for Refugees United Nations Security Council United Nations Secretary-General World Trade Organization Yearbook of the International Law Commission

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u Introduction

The use of civilians to accompany state armed forces to war zones is not new. In fact, more than a hundred years ago, civilians who followed the armed forces and provided services such as catering were known as sutlers and were, under certain circumstances, given prisoner-of-war status under international humanitarian law.1 What is new and extraordinary, and what has given rise to concerns including by the military that use them is the size and scope of the industry and the types of tasks that end up being carried out by private civilians, whether they are contracted by a state, a business, an international organization or subcontracted by another company. Current reports indicate that there are now upwards of 155,000 private military and security contractor personnel working for the US Department of Defense (DoD) in Iraq and Afghanistan alone, where they outnumber uniformed military personnel.2 Many of these persons provide the kinds of services that have often (but not always) been furnished by private companies or contractors, such as catering and maintenance services. Somewhere between 10 and 20 per cent of them act as armed or unarmed security guards. In general, the types of activities in which private military and/or security companies (PMSCs) typically engage tend to be broken down into the following categories: training armed forces and police forces; developing and training in military strategy; programming and servicing weapons; mine clearance; intelligence (including translation services and information operations); logistics
1

The Hague Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 29 July 1899, Art. 13 (Regulations). The 1929 Geneva Convention relative to the Treatment of Prisoners of War, 27 July 1929, contained an identical provision (Art. 81). Those treaties also refer to contractors. Moshe Schwartz and Joyprada Swain, Department of Defense Contractors in Afghanistan and Iraq: Background and Analysis, US Congressional Research Service Report (13 May 2011), p. 2.

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(including catering, construction, convoy driving); airlift support (transporting troops and goods); servicing vehicles, helicopters and planes; and providing static and mobile security services.3 This list is not exhaustive. Although fairly uncommon, some PMSCs have in the past furnished combat services. In fact, it was the actions of two such companies Executive Outcomes (EO) and Sandline International that put the industry in the spotlight shortly after they provided combat forces and conducted full-scale military operations in Angola, Sierra Leone and Papua New Guinea. These companies and their operations led politicians and academics alike to raise serious questions about the signicance of weakening the traditional state monopoly over the use of armed force.4 Following the dissolution of EO and Sandline at the turn of this century, there has been a tendency to believe that the market for military service provider rms or private combat companies is and will remain marginal.5 Nevertheless, the actions of those companies quickly steered the early debate to mercenaries, a moniker that the industry has fought hard to reject and disprove. Although exceptions exist, much of the debate and dialogue now tends to focus on other services provided by private companies. One of the most contentious activities of PMSCs nevertheless still relates to their use of armed force in war, which generally occurs pursuant to contracts for security services. Furnishing security guards is
3

Peter Singer has proposed a useful typology of what he refers to as private military rms: military service providers, military consultant rms and military support rms. Peter Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca and London: Cornell University Press, 2003), esp. pp. 88100. Deborah Avant categorizes private security services as a police-type activity in terms of Armed Operational Support, Unarmed Operational Support on the Battleeld, Unarmed Military Advice and Training and Logistical Support. Private security services fall within the rubric of police-type activity; she places Armed Site Security at the tip of the spear or on the front line: Deborah Avant, The Market for Force: The Consequences of Privatizing Security (Cambridge University Press, 2001), p. 17. See also Christopher Kinsey, Corporate Soldiers and International Security: The Rise of Private Military Companies (London: Routledge, 2006), pp. 833. Kinsey uses the term Private Combat Companies but asserts that this is a hypothetical category: p. 31. At the forefront of such studies, Deborah Avant examined the impact of the industry on state power over the use of force and the ability of non-state actors to inuence the use of force: The Market for Force, esp. pp. 21952. We are not in a position to comment on the accuracy of this sentiment. We note, however, that PMSCs may be based in states where there is little transparency and operate in conicts that tend not to be on the radar of the international news media. One example is the Russian PMSC Sukhoi, which provided a small but complete air force to Ethiopia during its conict with Eritrea in the late 1990s. See Singer, Corporate Warriors, p. 138.

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categorized by some as a policing-type activity, even in the context of conict zones.6 Indeed, we are all accustomed to seeing private security guards in our daily lives, patrolling shopping malls and other public places, standing outside of banks or other buildings, and, understandably, private security companies have ourished in the volatile, violent and unstable countries enmeshed in armed conicts. Transposing the provision of such security services to countries in which there is an armed conict occurring, however, necessarily raises a whole host of issues in relation to the lawful use of force in war. The following description of the weapons of private security guards in Afghanistan serves as a stark illustration that private security guarding in conict situations is of a wholly different scale than prosaic shopping mall patrols:
the arms used by [private security company] employees (both international and local staff) vary widely, ranging from semi-automatic handguns, assault ries (e.g. Kalashnikov), semi-automatic ries (e.g. Berettas) to machine guns (e.g. Kalashnikov type machine guns-PKMs) and RPGs (rocket propelled grenades). The most common weapon of local staff, most likely because militia ghters used it during the Afghan wars, is the AK47/Kalashnikov.7

The report also indicates that [a]ccording to an UN ofcial [one private security company is] even using howitzer for protecting a road construction project in Kunar.8 Even if they are truly used only in self-defence, machine guns and howitzers are not exactly batons and billy sticks. Throughout this work, we will examine in detail some of the complex problems the private security industry in particular poses in the context of armed conicts. It is appropriate here to provide some background on armed conicts and the international law that applies to them and that governs the actions of persons and states waging war. Armed conicts may be classied as international or non-international in nature, and that classication affects the body of legal rules that apply to them. International armed conicts occur when a state uses armed force in or against another state.9

6 7

8 9

Avant, The Market for Force, p. 17. U. Joras and A. Schuster (eds.), Private Security Companies and Local Populations. An Exploratory Study of Afghanistan and Angola (Berne: Swisspeace, 2007), p. 20. Ibid., p. 20, n. 62. Art. 2 common to the four Geneva Conventions of 1949. Under IHL, certain wars of national liberation may also be considered international armed conicts (Art. 1(4) of Additional Protocol I) as well as all cases of belligerent occupation.

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The early phases of the wars in Iraq and Afghanistan, with Coalition or NATO forces ghting Iraqi and Taliban forces, are clear examples of recent international armed conicts. The international law governing such conicts is extensive and is set down primarily in the Geneva Conventions of 1949 (to which all states in the world are parties), their Additional Protocols of 1977 and customary international humanitarian law. This body of rules is commonly referred to as international humanitarian law, or IHL.10 International humanitarian law also contains rules that apply to noninternational armed conicts, which are conicts that occur between an armed group and a state, or between two or more armed groups acting within the territory of a state and sometimes even across state borders. There have been many more non-international armed conicts (or civil wars) in the past decades than international armed conicts, which is unfortunately inversely proportionate to the number of detailed treaty rules that apply to them. There are nevertheless a sizeable number of rules of customary IHL that apply equally in non-international armed conicts.11 For their part, private military and security companies, contractors or services are not dened in any binding treaty.12 One instrument that seeks to guide states in their use and tolerance of PMSCs the Montreux Document does provide a denition, that, although incomplete, reects many of the kind of companies and services that are of greatest concern from an IHL perspective. It says:

10

11

12

Some refer to the Law of Armed Conicts, or LOAC; however, we will use the term international humanitarian law (IHL) throughout this work. See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humantarian Law (Cambridge University Press and ICRC, 2005), vol. 1. There is a denition in the Draft Convention proposed by the UN Human Rights Council Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding Peoples Exercise of the Right of Self-determination, but that draft treaty was not adopted by states. According to draft Art. 2(a), Private Military and Security Company refers to a corporate entity which provides on a compensatory basis military and/or security services by physical persons and/or legal entities. Military services are further dened, in draft Art. 2(b), as referring to specialized services related to military actions including strategic planning, intelligence, investigation, land, sea or air reconnaissance, ight operations of any type, manned or unmanned, satellite surveillance, any kind of knowledge transfer with military applications, material and technical support to armed forces and other related activities. The term security services is understood as including armed guarding or protection of buildings, installations, property and people, any kind of knowledge transfer with security and policing applications, development and implementation of informational security measures and other related activities (draft Art. 2(c)). See Draft of a Possible Convention on Private Military and Security Companies (PMSCs) for Consideration and Action by the Human Rights Council, UN Doc. A/HRC/15/25.

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PMSCs are private business entities that provide military and/or security services, irrespective of how they describe themselves. Military and security services include, in particular, armed guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel.13

As our discussion of many issues relating to PMSCs will show, whether the company ofcially sees itself as providing combat services is not decisive for how their activities may be gauged and regulated under IHL. In our view, this is a fundamental but too often overlooked aspect of any process designed to regulate PMSCs and their activities. In support of our pragmatic approach to the industry, we nd it important to generate an understanding of just how ingrained it has become. Although it reads like the outrageous plot of a Hollywood lm, the following long excerpt from a report by the US Senate Committee on Armed Services is revealing. In 2010, that Committee reported on its investigation of private security guards hired by the PMSC ArmorGroup to provide guard services for an airbase in Afghanistan. ArmorGroup was not contracted directly by US forces, but was subcontracted by the company (ECC) that the United States had contracted for planning and construction for an airbase for the Afghan Air Corps. The executive summary reads:
To provide most of their guard force at the base, ArmorGroup initially relied on two warlords, who were known by the company as Mr. White and Mr. Pink. Documents and testimony link those warlords and their successors, to murder, kidnapping, bribery, and anti-Coalition activities. The rst group of ArmorGroup guards supplied by the warlords began working at the U.S. airbase in June 2007. In July 2007, Mr. White was ambushed and shot just outside the airbase. Following the attack, armed ArmorGroup guards loyal to White attempted to leave their posts to seek revenge for the attack. It was never determined who was responsible for the shooting. A rivalry was apparently developing between White and Pink, however, and ECCs Security Manager later suggested that the shooting was likely committed by Pink. On December 12, 2007, Mr. White again came under attack. This time, it was known that the perpetrator was Mr. Pink and his men. The attack escalated into a reght in the local bazaar with Pink shooting White

13

The Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conict (17 September 2008): Preface, point 9(a).

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three times, killing him. ECCs Security Manager later said of the shooting that it was kind of like a maa thing. If you rub somebody out, youll get a bigger piece of the pie. Following the shooting, it was reported that Pink was in a local village with a number of Taliban ghters. With White dead and Pink reportedly holed up with the Taliban, ArmorGroup found itself without a guard force provider. The company soon turned to Whites brother to ll that role. He would come to be known by the company as Mr. White II. Despite reports linking Pink to the Taliban, ArmorGroup continued to employ his men for more than a month after White Is murder. A company report said the mens eventual termination from ArmorGroup was a result of reports that they were sending information to Mr. Pink regarding our movements to and from Herat, the routine of the aireld security, and attempting to coerce fellow members of the guard that they should join with Pink ArmorGroup reported that they had very little choice but to re Pinks men particularly in light of Pinks move to the Taliban The threat posed by Pink was not limited to operations on the airbase. In spring 2008, U.S. Forces operating out of the FOB [Forward Operating Base] near the aireld, identied Mr. Pink as a potential military target. The U.S. Forces Team Leader said that his team consider Pink a mid-level Taliban manager and said that the fact that Mr. Pink resided immediately outside our front gate posed a force protection issue for us.14

This report shows that for the warlords who supply the labour force for the private security companies, obtaining a contract to provide security in Afghanistan is treated like maintaining control over drug-trafcking territory.15 The spiralling loss of control by the United States, including over security guards who led gun battles in local markets and fed sensitive information directly to the enemy, was dealt with not directly by the US forces but by a company subcontracted to a company the United States had hired to manage an airbase. According to the report, ArmorGroup continued to rely on its dangerous source of manpower even when it was aware of the risks because it had no other means to full its contractual obligations. Incredible though it may seem, this is a slice of the reality of the world of private military and security contractors operating in situations of armed conict.
14

15

US Senate Armed Services Committee, Inquiry into the Role and Oversight of Private Security Contractors in Afghanistan Report, 111th Congress, 28 September 2010, pp. iii (Executive Summary). ArmorGroups awareness of the doubtful ethics of its manpower providers is suggested by the fact that it referred to the warlords by the names of criminals from Quentin Tarantinos lm Reservoir Dogs.

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The enormous strategic risks that this type of contracting practice entails for state armed forces, their operations and even the success of their foreign policy are self-evident. In and of themselves, one would think the risks would sufce to curb the use of outsourced support and private security guards in situations of armed conict. This has not, however, proved to be the case, mostly for the simple reason that postCold War regular armed forces do not have sufcient numbers to perform all of the necessary tasks, including sensitive ones, to maintain, support and protect armed forces in the eld by themselves. Signicant problems with fraud and oversight have also not proved to be deterrents to heavy reliance on outsourcing. The willingness of contracting states to accept the risks and to prefer to take action to improve oversight and contracting practices, rather than turning away from using private military and security contractors altogether, is proof that the industry is here to stay. In our view, that makes it worthy of very serious study. This book has three main objectives. The rst is to determine whether public international law places limits on the use of private military and security companies, both in terms of explicit and implicit prohibitions. To date, most of the legal analyses in respect of such restrictions have been made solely under the law relating to the use of mercenaries. In our view, it is essential to consider many other aspects of international law, such as the law on the right of states to resort to the use of force, the law on the creation of peace operations, the law on privateering, as well as IHL and international human rights law (IHRL) more generally, in order to have a more complete picture of the existing limitations on their use. We begin with this analysis in Chapter 1. The second objective is to understand the legal framework governing the use and actions of PMSCs in the context of situations of armed conict. IHL provides specic and detailed rules, underpinned by principles, which govern what the armed forces of a state party to a conict may and must do. It also has rules governing the actions of members of armed groups in non-international armed conicts, but these are less detailed than the rules for international armed conicts. It is important to understand whether (and if so, how) private military or security contractors may be considered to be members of the armed forces of states (or members of organized armed groups) in order to know the legal obligations binding on them. That analysis occurs on two levels rst, whether, under the rules on attribution in the law on state responsibility, PMSCs may be considered to be an organ of a state (a determination which is not, in itself, conclusive as to their status as members of the

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armed forces); and secondly, whether, according to IHL, they are members of the armed forces of a state party to a conict. These analyses are divided between Chapters 2 and 4. As we conclude on both levels that PMSCs in their current manifestation and use are (for the most part) not members of state armed forces, we aim to provide a detailed analysis on the signicance of their status as civilians in terms of the limits on the tasks, roles and functions they may be assigned in the circumstances in which they may nevertheless be used. That analysis also occurs on two levels, divided between Chapters 3 and 4. In Chapter 3, we outline how IHL binds non-state actors such as private companies and individuals and attempt to indicate which types of obligations are binding on all. In Chapter 4, we further analyse the status of private military and security contractors and delve more deeply into the intersection of the concept of direct participation in hostilities and the laws on the use of force in self-defence and their relationship to IHL. We also consider the rules on the use of force in law enforcement in the context of armed conict, through the prism of PMSCs as non-state actors. The third main objective of this work is to address issues of responsibility and accountability surrounding PMSCs and their actions. In that respect, in Chapter 2 we examine whether and how different types of PMSCs (according to their relationship to states and the tasks they are given) may be attributable to states. In addition, we look at the due diligence obligations that states bear with regard to private military and security companies and contractors whose actions are not directly imputable to states. Finally, in Chapter 5 we consider the rules and mechanisms for implementing the responsibility of states and individuals in relation to breaches of international law that may occur. The normal means of holding states responsible play a part in this analysis, as do international criminal law (and its trickle-down effect into national criminal law) and national laws on civil responsibility for violations of international law. The main reason we have divided the discussion on state responsibility between Chapters 2 and 5 is that the rules on state responsibility also help to clarify the applicable framework of primary rules governing the actions of PMSCs, which are necessary to keep in mind during the discussions in Chapters 3 and 4. Throughout, we have attempted to elucidate key features of the applicable legal framework and to apply them dispassionately to the activities and actions of private military and security contractors. Although the use of PMSCs has raised major controversies and remains a highly political

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issue, our approach is circumscribed to its legal aspects as informed by existing rules of international law. Accordingly, it makes no attempt to judge the political legitimacy of PMSCs. The primary focus of our work is on IHL, although we also take into account IHRL where appropriate to generate a more complete picture of the applicable legal framework. We have done our utmost to interpret the law in its proper context and according to the normal meaning of the terms and to apply it to facts in the public domain.

1 The limits on the right to resort to PMSCs

Some limits on the right of states to use private military and security companies are self-evident. Obviously, a state may not do through private and military and/or security companies (PMSCs) what it may not do with its own armed forces. As we will see below, the rules on the use of force (jus ad bellum) are already quite clear on that issue. What is less evident, however, is whether international law imposes limits on how states may use private actors in carrying out activities they are otherwise permitted to undertake. We contend that there are both explicit and implicit limits to the roles and functions which states may entrust to PMSCs. In what follows, we deal only with the question whether international law prohibits a state to do certain things through, with or by PMSCs which it may do through its own armed forces.

The limits imposed by international law on the use of armed force jus ad bellum

In the following section, we will examine whether the international law regulating the circumstances under which states may use force lawfully also regulates which actors may be implicated in that use of force. In other words, does the jus ad bellum have anything to say about whether states may have recourse to private military and security companies? In the course of this analysis, we will attempt to tease out an answer from contemporary rules on the use of force by states in self-defence as well as in the context of peacekeeping, but we will also consider some older restrictions on the use of private force for PMSCs stemming from the rules on privateering and mercenaries and their signicance.

Does the UN Charter prohibit delegation to private companies of states right to use armed force in self-defence?

States right to use force against one another is strictly limited by the UN Charter. Article 2(4) of the charter states:
10

limits imposed by international law


All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

11

This prohibition is widely considered to be customary international law and jus cogens.1 The provision circumscribes not only war, but the threat or use of force more generally and includes not only major operations, but all forms of armed force against another state.2 It should be recalled, however, that this is a purely inter-state prohibition: arguably it does not regulate when or under what conditions a state may use force internally against armed groups.3 The content and meaning of the prohibition on the international use of force has been eshed out over the years through the adoption of various declarations by the UN General Assembly, some of which are particularly relevant to states use of private military and security companies.4 In particular, according to the General Assemblys resolution on the Denition of Aggression, aggression includes:
1

2 3

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ Rep 14, at 100, para. 190. Corfu Channel case (UK v. Albania) (Merits) [1949] ICJ Rep 4. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, at 194, paras. 1389. See however the separate opinions of Judge Higgins (at paras. 334) and Judge Kooijmans (para. 35); and the declaration of Judge Buergenthal (para. 6), all of whom disagree with the majority on this point. For a lengthy analysis arguing that Art. 2(4) does not apply to the use of force against armed groups, see Olivier Corten, The Law against War: The Prohibition on the Use of Force in Contemporary International Law, tr. Christopher Sutcliffe (Oxford: Hart, 2010), pp. 12697. See also Antonio Cassese, Terrorism is Also Disrupting Some Crucial Legal Categories of International Law (2001) 12 EJIL 993, 9978 for a discussion of the use of force as a reply in self-defence against terrorist acts and the problematic consequences for the interpretation of the limits on that force. See also the literature in response to the ICJs opinion in Legal Consequences, such as S. Murphy, Self-defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ? (2005) 99 AJIL 6276; R. Wedgwood, The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-defense (2005) 99 AJIL 5261. Despite criticism, the ICJ reafrmed its view that the right to use force in self-defence does not apply to the use of force against internal armed groups in Congo v. Uganda [2005] ICJ Rep 168, in which it sought to attribute the activities of armed groups to another state rather than evaulating the response in terms of necessity and proportionality. For a discussion, see S. Barbour and Z. Salzman, The Tangled Web: The Right of Self-defense against Non-state Actors in the Armed Activities Case (2008) 40 NYU J of Intl L and Politics 53, 7881. See e.g. the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV), 24 October 1970; the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence

12

the limits on the right to resort to pmsc s


[t]he sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to [invasion, attack and other acts listed in the previous paragraphs of the denition], or its substantial involvement therein.5

This aspect of the denition is also recognized as customary international law.6 Withholding comment as to whether PMSCs constitute mercenaries under international law,7 it is clear that a state may not circumvent the prohibition on the use of force in the charter by contracting or otherwise engaging a PMSC to use aggressive force against another state on its behalf.8 This proposition is straightforward and uncontroversial. Under the charter there are two ways in which states may nevertheless lawfully use force against other states: in self-defence, according to Article 51 and customary international law, and if authorized to do so by the Security Council exercising its powers under Chapter VII of the charter. States have recently reafrmed that these are the only bases on which force may be used, proclaiming that the relevant provisions of the Charter are sufcient to address the full range of threats to international peace and security.9 Neither of these bases for the lawful use of force expressly permits or prohibits delegation of those powers to private entities. As such, any impediments on the use of PMSCs must be sought in practice or interpretation. In this section we will focus exclusively on self-defence (Article 51); uses of force authorized by the Security Council will be addressed in section A 2. Article 51 of the UN Charter states (in part):
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member

7 8 9

and Sovereignty, UNGA Res. 2131 (XX), 21 December 1965; Denition of Aggression, UNGA Res. 3314 (XXIX), 1974. Art. 3(g) of the Denition of Aggression, UNGA Res. 3314 (XXIX), 1974, UN Doc. A/Res/ 29/3314. This was recognized as reecting customary international law by the ICJ in Nicaragua (Merits), at 103. See section A 5 and Ch. 4, section B 2.4 below. Denition of Aggression, UNGA Res. 3314 (XXIX), 1974, UN Doc. A/Res/29/3314. World Summit Outcome, UNGA Res 60/1, 16 September 2005, UN Doc. A/RES/60/1, para. 79. As such, this lays to rest the question whether there is an additional justication for the use of force under the rubric of humanitarian intervention. Such intervention may only occur at the behest of the Security Council exercising its powers under Chapter VII of the UN Charter.

limits imposed by international law


of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security

13

The International Court of Justice has conrmed that a customary law right to self-defence exists alongside the right in Article 51,10 but the scope and content of the right to self-defence has been the subject of enormous controversy over the past sixty years. Especially controversial questions include whether force may be used in anticipation of an attack or pre-emptively, or whether, as the text of Article 51 says, states are conned to using force only once an attack has occurred.11 These questions need not be resolved for our purposes, however. What matters is whether anything suggests that a state may not contract a PMSC to use force in the self-defence of the state. There are two levels to this analysis the determination as to whether the circumstances for the right of a state to exercise its right to use force in self-defence exist, and the execution of the operation subsequent to that determination in conformity with the jus ad bellum rules on the use of force. In order to be lawful under the jus ad bellum, a use of force must be necessary and proportionate to the threat posed by the prior (or imminent) aggression. Although the possibility is likely to be remote (for the moment at least), it is worthwhile spending a moment considering whether a state may delegate to a private actor the assessment and decision-making power as to whether force may be used in self-defence. In our view, the answer to this question depends on the facts, but we submit that it is unlikely that a private entity will ever be in a position to make this
10 11

Nicaragua (Merits), at 94. For a concise general overview, Malcolm Shaw, International Law, 5th edn (Cambridge University Press, 2003), pp. 102432. See also Y. Dinstein, War, Aggression and Selfdefence, 3rd edn (Cambridge University Press, 2001), pp. 16583, and discussing whether Art. 51 covers all of the same circumstances in which force may be used in self-defence under customary law and in particular, in terms of anticipatory self-defence at pp. 1679. Tarcisio Gazzini argues that State practice reveals that governments invariably consider use of force to counter any military hostile activities as an exercise of selfdefence. Tarcisio Gazzini, The Changing Rules on the Use of Force in International Law (Manchester: Juris, 2005), p. 139. However, James Green argues that the ICJ has sought to establish a gravity threshold for seriousness of an armed attack giving rise to the right to use force in self-defence. See James Green, The International Court of Justice and Self-defence in International Law (Oxford: Hart, 2009), esp. pp. 3142. Christine Grey, The Charter Limitations on the Use of Force: Theory and Practice in V. Lowe et al. (eds.), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (Oxford University Press, 2008), pp. 8698.

14

the limits on the right to resort to pmsc s

evaluation in conformity with international law. We wonder, rst, whether it can be commensurate with comity to allow a private actor to make a determination on an issue as sensitive and weighty as whether to use force against another state. That such an act would engage the responsibility of the state is beyond question it is an inherently governmental function to make that decision.12 But the fact that the state would remain responsible does not settle the whole matter even if the state remains responsible on the international level, it is questionable whether a state can possibly respect its primary obligations under these circumstances. The entire Westphalian system was built on the notion of preserving the sovereign equality of independent states; the decision to use force against another state, even in the exercise of self-defence, may be considered one of the hallmarks of sovereignty. Allowing a private (non-state) actor to exercise that power in place of the state would seem to constitute an impermissible abdication of the very essence of the sovereignty that the whole system was and still is designed to protect. Moreover, the prohibition of the use of force enshrined in the UN Charter (and equally anchored in customary international law) is widely recognized as central to the functioning of the international legal order.13 In terms of a factual capacity to respect its obligations, of particular concern is the fact that it is highly unlikely that a state will disclose all of the sensitive information that such a decision rests upon to a private actor information such as intelligence regarding the nature of the threat, but also the vulnerabilities and strengths of the state itself.14 Without such information, a private actor cannot be in a position to properly evaluate the existence of a threat and the need to use force in
12 13

14

Articles on State Responsibility, Arts. 5 and 8. As Kolb points out, the prohibition of the use of force is central to the international legal order. In doing so, he cites Oscar Schachter, who qualies Art. 2(4) as the heart of the Charter; Louis Henkin, calling it the primary value of the inter-State system; and Jimnez de Archaga, who describes the prohibition of the use of force as the cardinal rule of international law and cornerstone of peaceful relations among States. See Robert Kolb, Ius contra bellum (Basel/Brussels: Helbing & Lichtenhahn/Bruylant, 2003), p. 165, footnotes omitted. The discussion of the consideration and rejection by the ICJ of the evidence presented by the United States that it had been under attack by Iran in the Oil Platforms case illustrates the sensitive and complicated nature of such a determination. The Court in particular notes the unworthiness of much public information as evidence substantiating a claim of attack in this regard. See Case Concerning Oil Platforms (Iran v. US) (Merits) [2003] ICJ Rep 161, paras. 5072. Regarding publicly available information, see para. 60.

limits imposed by international law

15

response. Thus, delegation of the decision-making power to a PMSC is unlikely to conform to the requirements of international law. It will not be the case that all inherently governmental functions that are delegated to a private actor necessarily entail a breach of the primary obligation, but in this case the obligation depends on such sensitive information and issues at the core of statehood that it is difcult to imagine a scenario in which outsourcing would conform to international law. The unlikelihood of delegating decision-making power of that magnitude to a private company seems so self-evident as to merit simply being taken for granted that it will never happen. Certainly, it would seem impossible to imagine a state outsourcing a decision to respond in selfdefence against an armed attack by another state. If, however, we take a much more circumspect example, such as delegating to drone operators the power to determine whether and how to respond to a target they identify operating on foreign soil, we may in fact be in the realm of outsourcing a decision whether to use force against another state. Targeted killings via drone attacks carried out extraterritorially are a well-known phenomenon.15 The intentional killing of a person via military means on the territory of another state without that states consent could in fact amount to a use of force in self-defence against that state.16 The fact that the United States uses drones to carry out such killings and the involvement of PMSCs in those acts is also public knowledge.17 The US is careful to point out that at present, while employees of the PMSC Blackwater load the bombs onto the drones and prepare them for their mission, it is invariably agents from the US Central Intelligence Agency who determine the targets and pull the trigger.18 If a wider scope of action is granted to PMSCs in this or similar contexts, such action could
15

16

17

18

Nils Melzer, Targeted Killing in International Law (Oxford University Press, 2008), pp. 2078, citing the Report of the Special Rapporteur (Executions) of 13 January 2003 (C./CN.4/2003/3) on the killing of alleged Al Qaida operatives by a US drone in Yemen. Jordan J. Paust, Self-defense Targetings of Non-state Actors and Permissibility of U.S. Use of Drones in Pakistan (2010) 19 J Transnl L and Policy 237. The most oft-cited case is the attack of six persons in Yemen via drone by the United States. In that case the United States claimed it had the consent of the Yemeni government to the operation. See Melzer, Targeted Killing in International Law, pp. 2078. Report of the Special Rapporteur (Executions) of 13 January 2003 (C./CN.4/2003/3); Andrew Finkelman, Suing the Hired Guns: An Analysis of Two Federal Defenses to Tort Lawsuits against Military Contractors (2009) 34 Brooklyn J Intl L 395, at n 204 describes their involvement. J. Risen and M. Mazzetti, C.I.A. Said to Use Outsiders to Put Bombs on Drones, New York Times, 21 August 2009, A1.

16

the limits on the right to resort to pmsc s

fall into the realm of outsourcing the power to determine whether to use force against another state to a private actor. The next question is whether, having taken a decision to act in selfdefence, a state may outsource the conduct of the entire operation including the planning and execution to a PMSC. In order to use force in self-defence in accordance with the jus ad bellum, a PMSC must be able to evaluate what is necessary and proportionate to the attack made on the state concerned, and that the object attacked in self-defence was a legitimate military objective open to attack.19 In some cases, even the qualication of the target as a legitimate military objective will rely on sensitive and classied intelligence for instance, the Iranian oil platforms attacked by the United States in 1987 and 1988 were not military objects in nature, but the United States contended that they were legitimate military objectives because they acted as a military communication link for the Iranian navy.20 The Oil Platforms case further helps to illustrate problems with a PMSC assessing what is necessary to respond to an attack: in that case, the Court found the attacks, allegedly in selfdefence by the United States, were not demonstrably necessary to respond to the threat posed by Irans alleged prior attack because the United States had not used diplomatic channels to complain to Iran regarding its use of the platforms.21 Not only are diplomatic channels by denition not open to a PMSC, it is unlikely that such an actor would even consider a diplomatic response since it is not a state actor accustomed to inter-state dialogue. Moreover, a PMSC is likely to be affected by its more singular purpose/focus as a military body than a multifaceted state would be in its evaluation of what responses are possible and necessary. Thus, in addition to the extensive sensitive information that a PMSC would need access to in order to assess what measure of force is necessary to respond to a prior attack, crucial questions as to the necessity of a use of force may fail to be considered by it. It should be recalled that if the state incorporates that PMSC into its regular armed forces, even if only for the duration of the campaign, as an erstwhile or ephemeral state actor, the PMSC may be presumed to have access to all necessary information and intelligence the state holds.
19 20

21

Oil Platforms, para. 51. Ibid., para. 74. This reason is one among others, cited for illustrative purposes only. It should be noted that this case uses a jus in bello concept in order to assess the lawfulness of acts under the jus ad bellum. Ibid., para. 76.

limits imposed by international law

17

Nevertheless, the discussion above shows that not only purely military considerations will sufce in an assessment of the necessity of a use of force in self-defence. If the PMSC remains outside of the formal state structure, moreover, it is difcult to see how it could evaluate and execute a use of force in self-defence on behalf of a state in conformity with international law.22

2 Private military and security companies in peace support operations


Aside from self-defence under Article 51 of the UN Charter, the other context in which force may lawfully be used arises when states are authorized to use force by the UN Security Council. This may be an enforcement action, such as the use of force authorized against Iraq in 199091, or a peace operation. There are two main types of peace operations recognized in most doctrine: classical peace operations23 and more robust peace operations established under Chapter VII of the UN Charter, arguably with a broader mandate to use force than merely in self-defence and defence of the mandate, but not extending to enforcement action or war.24 The General Assembly can also establish peace
22

23

24

The analysis of the lawfulness of using a PMSC to execute a decision to use force against another state is explored throughout the rest of this work. These are often referred to as Chapter VI operations in that they lie between the Chapter VI good ofces or diplomatic means of the Security Council and its enforcement powers under Chapter VII in the UN Charter. The expression was coined by former UN Secretary-General Dag Hammarskjld. There are also Observer Groups, which have a purely observer function, do not involve the use of force and do not usually consist of national contingents. See M. Bothe, Peacekeeping in B. Simma (ed.), The Charter of the United Nations: A Commentary, 2nd edn (Oxford University Press, 2002), paras. 945. They will therefore not be considered in this analysis. UN Department of Peacekeeping Operations and Department of Field Support, United Nations Peacekeeping Operations: Principles and Guidelines (18 January 2008), pp. 345 (the Capstone Doctrine). See also M. Zwanenburg, Accountability of Peace Support Operations (The Hague: Martinus Nijhoff, 2005), pp. 304 on the denition of peace support operations. See also N. Blokker, The Security Council and the Use of Force: On Recent Practice in N. Blokker and N. Schrijver (eds.), The Security Council and the Use of Force: Theory and Reality A Need for Change? (The Hague: Martinus Nijhoff, 2005), pp. 129, 17, states, in practice the distinction between peacekeeping and authorizations to coalitions of the able and willing to use force has become blurred. On the evolution of peacekeeping doctrine and its international legal framework, see Vincent Chetail, Adhocism and the Rules of Collective Security: Is Peacekeeping Still Relevant for Maintaining International Peace and Security? (2004) 23 Refugee Survey Q 77110, esp. 7785. See also N. White, Peace Operation in V. Chetail (ed.), Post-Conict Peacebuilding A Lexicon (Oxford University Press, 2009), pp. 21327. Throughout the discussion, the

18

the limits on the right to resort to pmsc s

operations using the Uniting for Peace Resolution, but has rarely done so.25 In contrast to these, the enforcement actions the UN was supposed to undertake using forces under Article 43 of the charter have instead been conducted by states, regional organizations or coalitions of states under an authorization by the UN Security Council.26 There have been recent proposals to use PMSCs in the latter context and PMSCs themselves are clamouring for such a role;27 moreover, they already play a role alongside states in traditional peace operations. Indeed, it is beyond question that the UN and other humanitarian organizations have hired PMSCs to act as guards and to conduct demining in various humanitarian and peace operations,28 and governments appear to accept that this trend is likely to continue.29 Some scholars do not even question the legal framework of such use but proceed straight to matters of responsibility and accountability.30
question as to the combatant status of PMSC employees will mostly be suspended, especially as it is a vexed issue in peacekeeping doctrine. See Ch. 4 below. Uniting for Peace, UNGA Res. 377(V), 3 November 1950. Although the very rst peace operation was established using the mechanisms set up in this resolution, it has not been used since then to establish a peace operation. In general, for example, the UNSC authorizations to use force against Iraq in 1991 and against Korea in 1950 are excluded from what can be considered peace operations as they amount to enforcement action. See e.g. M. Patterson, A Corporate Alternative to United Nations Ad hoc Military Deployments (2008) 13 J Conict and Security L 21531 and F. Fountain, A Call for Mercy-naries: Private Forces for International Policing (2004) 13 Michigan State U J Intl L 22761. Malcolm Patterson has expanded his original article in a booklength study, Privatising Peace: A Corporate Adjunct to United Nations Peacekeeping and Humanitarian Operations (Basingstoke, UK; New York, NY: Palgrave Macmillan, 2009). Contra, A. Leander and R. van Munster, Private Security Contractors in the Debate about Darfur: Reecting and Re-inforcing Neo-Liberal Governmentality (2007) 21 Intl Relations 20116. For industry lobbying, see M. Boot, Darfur Solution: Send in the Mercenaries, Los Angeles Times, 31 May 2006, B13. In his evidence before the UK Select Committee on Foreign Affairs, T. Spicer also recommended the creation of a peace enforcement force of PMSCs for interim use: Select Committee on Foreign Affairs, Examination of Witness (Lt. Col. T. Spicer OBE) 11 June 2002, Response to Mr Pope, paras. 34. See examples in Patterson, A Corporate Alternative, p. 218; P. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca: Cornell University Press, 2003), pp. 823. N. D. White and S. MacLeod, EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility (2008) 19 EJIL 96589, 966. Ibid.; C. Lehnardt, Peacekeeping in S. Chesterman and A. Fisher (eds.), Private Security, Public Order: The Outsourcing of Public Services and its Limits (Oxford University Press, 2009), pp. 20521; but see M. Kova, Legal Issues Arising from the Possible Inclusion of Private Military Companies in UN Peacekeeping (2009) 13 Max Planck Ybk UN L 30774.

25

26

27

28

29

30

limits imposed by international law

19

However, the enlistment of PMSCs for the kinds of tasks described above within a broader peace operation is distinct from the question of whether the UN may delegate the conduct of all or part of a peace operation or enforcement action itself to such corporations. Some argue that it remains unlikely that PMSCs will take on a leading role in peace operations,31 but lobbying by the industry and others make it worthwhile to investigate the feasibility of PMSCs as a peacekeeping option from a purely legal standpoint. The possibility and even likelihood that other international organizations, such as the European Union (EU), will use PMSCs in their peace operations has been discussed and some elements of the legal ramications of such use have been explored elsewhere.32 However, for present purposes, this study will focus primarily on UN peace operations, with a shorter discussion on the use of PMSCs by regional organizations in the context of peace operations. This section will explore the laws and rules on UN peace operations (touching occasionally on enforcement operations) and analyse how they affect the use of PMSCs. We note, at the outset, that this is an exercise involving considerable speculation in that there is a lack of practice. Although the UN Department of Peacekeeping Operations (DPKO) reportedly considered contracting a PMSC to conduct peace enforcement in eastern DRC in 1996, it rejected the option.33 Public reports of the most recent UNstate discussions on reforming and improving peacekeeping do not canvass the possibility of outsourcing entire operations.34 Sketching a legal opinion regarding PMSCs as peace forces, when peace operations themselves are not free from controversy, may thus be an exercise fraught with pitfalls. Nonetheless, it is both feasible and worthwhile to provide a careful legal analysis of the issues at stake.

31

32 33

34

J. Cockayne, Commercial Security in Humanitarian and Post-Conict Settings: An Exploratory Study (New York: IPA, 2006), pp. 89. Ibid. Oldrich Bures, Private Military Companies: A Second-best Peacekeeping Option? (2005) 12 Intl Peacekeeping 53346, 539. Singer, Corporate Warriors, p. 185. (Also in Singer, Peacekeepers, Inc (Brookings, 2003), www.brookings.edu/articles/2003/ 06usmilitary_singer.aspx). UN DPKO DFS, A New Partnership Agenda: Charting a New Horizon for UN Peacekeeping (non-paper) (July 2009); the use of PMSCs or the private sector was furthermore not raised beyond in logistical support roles in discussions in the Security Council on this and other reports. See UNSC Verbatim Record (31 July 2009) UN Doc. S/PV/6178 and S/PV/6178.Resumption 1.

20

the limits on the right to resort to pmsc s

The starting point for any discussion of the legal framework of UN peace operations is that the power to undertake or create such operations is not explicitly written anywhere in the UN Charter. Instead, the legal basis for peacekeeping is commonly found in the implied powers of the organization.35 It can, however, also be found in a textual reading of the UN Charter.36 Nonetheless, beyond their exact legal basis, most of the specic rules governing peace operations are not set down in the charter; rather, they have evolved through peacekeeping doctrine over the past six decades.37 In the following we will consider whether the established rules on traditional peacekeeping operations (i.e. those based on the consent of the host state, although possibly also under a resolution adopted under Chapter VII of the UN Charter)38 allow the UN Security Council or UN Secretary-General to delegate all or part of a peace operation to a PMSC, and we will also attempt to outline potential limitations to those powers. We will then consider whether the UN Secretary-General may accept a PMSC as the sole and complete contribution of a state to a peace operation. Finally, we will consider whether the Security Council has
35

36

37

38

On implied powers of the UN, see Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174; on the implied powers doctrine in the context of peacekeeping, see Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151. See also A. Orakhelashvili, The Legal Basis for Peacekeeping (2003) 43 Vanderbilt J Intl L 485. Chetail, Ad-hocism and the Rules of Collective Security, pp. 8591. See also Hilaire McCoubrey and Nigel White, The Blue Helmets: Legal Regulation of United Nations Military Operations (Aldershot: Dartmouth, 1996), pp. 4655. See UN Secretary-General, Summary Study of the Experience Derived from the Establishment and Operation of the Force (9 October 1958) UN Doc. A/3943 (UNSG, Summary Study); UN Secretary-General, An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping (17 June 1992) UN Docs. S/24111A/47/277; UN Secretary-General, Supplement to An Agenda for Peace (3 January 1995) UN Doc. A/ 50/60S/1995/1; Report of the Panel on United Nations Peace Operations (21 August 2000) UN Docs. A/55/305S/2000/809 (Brahimi Report); UN DPKO and DFS, The Capstone Doctrine. Many contemporary operations are based on both consent and Chapter VII. See UN DPKO and DFS, The Capstone Doctrine, pp. 315, for how the UN reconciles the need for both bases. A Chapter VII resolution is generally thought to broaden the mandate of the operation to use more force than in a mission without one but it is not indispensable for the use of force in defence of the mandate, which goes beyond classical peacekeeping rules limiting the use of force to self-defence. The operation in Kosovo, for example, is considered to be based on the Military Technical Agreement concluded with Milosevic as well as UNSC Res. 1244 (10 June 1999) UN Doc. S/RES/1244 (1999). Only rarely has the Security Council specically stated that it is not adopting the enabling Resolution under Chapter VII. See e.g. UNSC Res. 1495 (31 July 2003) UN Doc. S/RES/1495 with regard to MINURSO and the situation in Western Sahara.

limits imposed by international law

21

the capacity to create a standing force using PMSCs (in the absence of, but also in the vein of, Article 43 forces).

2.1 Principles of peacekeeping: general issues Prior to our discussion of the legal regime governing the possible ways of mandating PMSCs to conduct UN peace operations, it is useful to consider the general principles on peacekeeping. These general principles, perhaps even more than the specic rules on delegation and the creation of subsidiary organs in UN law, inuence the overall assessment of the viability of the exclusive use of PMSC forces in peace operations. They are: the requirement of the consent of the host state to the operation (especially when it is not established under Chapter VII of the UN Charter), the requirement that the force be impartial and conduct itself with impartiality, and the principle that the use of force be restricted to only that required in self-defence.39 These principles were set down by Dag Hammarskjld at the time of the creation of the rst peace operation and have remained touchstones of legality and legitimacy ever since, despite the fact that they have not been interpreted in a consistant manner over the years.40 Nevertheless, recent UN doctrine afrms their vital role in peacekeeping.41 PMSC involvement in peace operations would thus have to be able to comply with these principles in order to be a feasible option.
2.1.1 Consent As traditional peace operations were established without a Chapter VII resolution, respect of Article 2(7) of the charter necessitated the existence of consent on the part of the host state(s) in order to establish a force on its territory.42 This principle has remained integral to peacekeeping doctrine even with the advent of Chapter VII resolutions accompanying host state agreements, even if only as a
39

40

41 42

See UNSG, Summary Study, esp. paras. 15493; see also UNSG, Agenda for Peace; UNSG, Supplement to An Agenda for Peace; Brahimi Report; UN DPKO and DFS, Capstone Doctrine. For insistence that the principles are quasi-constitutional, see M. Goulding, The Evolution of United Nations Peacekeeping (1993) 69 Intl Peacekeeping 453. See however UNSG, An Agenda for Peace, which dened peace operations in part as being conducted hitherto with the consent of all parties (emphasis added) for an example of the uctuation in application of the principles (para. 20). Brahimi Report, para. 48; UN DPKO and DFS, The Capstone Doctrine, pp. 315. Art. 2(7) of the charter in effect prohibits the UN from intervening in matters which are essentially within the domestic jurisdiction of any state in the absence of a Security Council Resolution adopted under Chapter VII of the charter.

22

the limits on the right to resort to pmsc s

practical necessity for the success of the operation. The requirement of host-state consent for legal reasons in traditional peace operations (so as not to contravene Article 2(7) of the charter) jives with but is not identical to the consent sought by the Department of Peacekeeping Operations (DPKO) in order to ensure the success of its operations.43 In the past as well as very recently,44 some host states have attempted to block a particular state from participating in a peace operation on their territory or attempted to limit the deployment (in geographical or functional terms) of certain contingents. Other states have argued that a host states views on the contingents that form part of the operation on its territory must be taken into account in determining the composition of the force on the grounds that consent as a legal basis for the operation goes not just to the existence of the mission but to all aspects of the operation.45 For our purposes, the question when it comes to PMSCs as a contingent of a peace force (or as the entire force) is whether the UN is legally bound by a host states objection to the composition of the force on its territory. UN doctrine does not accept that consent legally requires that a host state agree to the composition of the force, but the host states consent to the composition of the force will play an important role in the UNs decision-making. Here, it is worth quoting at length from the foundational document on the principles of peacekeeping:
[W]hile it is for the United Nations alone to decide on the composition of military elements sent to a country, the United Nations should, in deciding on composition, take fully into account the view of the host Government as one of the most serious factors which should guide the recruitment of the personnel. Usually, this is likely to mean that serious objections by the host country against participation by a specic contributing country in the United Nations operation will determine the action of the Organization. However, were the United Nations for good reasons to nd that course inadvisable, it would remain free to pursue its own line, and any resulting conict would have to be resolved on a political rather than on a legal basis.46

43 44

45

46

UN DPKO and DFS, The Capstone Doctrine, p. 34. Recently, DRC objected to Indian troops forming part of MONUC. See F. Wild, Congo Accuses some UN Peacekeepers of Complicity in Conict, Bloomberg, 27 November 2008. A. Di Blas, The Role of the Host States Consent with Regard to Non-coercive Actions by the United Nations in A. Cassese, United Nations Peace-Keeping: Legal Essays (Alphen aan den Rijn: Sijthoff and Noordhoff 1978), pp. 5594 makes this point at pp. 5961. UNSG, Summary Study, para. 161. Di Blase has argued that the Secretary-Generals declarations and attitudes consistently indicated that the United Nations did not intend

limits imposed by international law

23

The position of the UN as outlined above is that the Secretary-Generals discretion to determine the composition of the force is not limited in a legal sense by the consent of the host state. However, there will be an effort to accommodate the host governments views. Lack of consent on the composition of the force may signicantly impede a mission; indeed, the practical utility of consent makes it almost an incontrovertible requirement.47 For both practical and diplomatic reasons it is probable that a host state that strongly objects to a PMSC as the peace force would hold considerable sway.48 One may even be tempted to surmise that PMSCs would be so qualitatively different from any previous contingents involved in a peace operation that the legal requirement of consent would not allow the Secretary-General to use them without specic consent. However, it is possible to overstate this case, especially considering that the objections of a host state to the presence of another states forces on its territory due to its serious reservations with regard to that state are no small matter, yet the Secretary-General clearly reserves the legal right to contravene those wishes. 2.1.2 Impartiality Impartiality is a cornerstone of peace operations in fact, one authority identies it as the key factor distinguishing robust peace operations from enforcement action.49 Respect for this principle is sometimes tricky and requires a sophisticated understanding of the parties and circumstances.50 In its original incarnation, this principle led to the convention that none of the permanent ve members of the Security Council, nor any states neighbouring the host state, were

47

48

49

50

to surrender its full discretionary power with regard to matters falling within its competence, such as the composition of one of its subsidiary organs, i.e. the Force Instead, it was deemed convenient to take into account the host States demands to a greater or lesser extent Di Blase,The Role of the Host States Consent, p. 61, emphasis added. See e.g. the discussion of consent in UN DPKO and DFS, The Capstone Doctrine, pp. 314. One can imagine that the UN would not want to be perceived as sending in mercenaries and would avoid using them without host-state consent for fear of losing credibility on the international stage. See UN DPKO and DFS, The Capstone Doctrine, p. 33 and Zwanenburg, Accountability of Peace Support Operations, pp. 323. As the Capstone Doctrine states, a peacekeeping operation should not condone actions by the parties that violate the undertakings of the peace process or the international norms and principles that a United Nations peacekeeping operation upholds. UN DPKO and DFS, The Capstone Doctrine, p. 33.

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admissible as members of the peace force, which can be seen as manifestations of an effort to ensure impartiality in reality and as perceived.51 There is no inherent reason why a PMSC forming all or part of a peace operation could not conduct operations impartially. One could even argue that PMSCs are likely to be politically disinterested in the outcome of a conict and that their use therefore ensures that the principle of impartiality is respected. In some cases, such a position is likely nave, however, given that PMSCs major clients are not states but the extraction industry, which often has an interest in conicts. PMSCs may also be vertically integrated into businesses involved in the exploitation of natural resources with particular agendas regarding resource-rich territory.52 It should also be recalled that political disinterest in the outcome of a particular conict does not imply that a rm is apolitical53 or inherently impartial. PMSCs hailing from a particular region or boasting a predominant number of nationals from a particular state may pose similar problems as interested states to impartiality. States have been known to interfere with UN Command by issuing instructions to their own forces.54 While PMSCs are not state actors and have the advantage of not being integrated into a national structure and therefore would not necessarily be under a competing legal obligation to obey such orders,55 the problem highlights a need for a high degree of transparency, in and of itself one of the most problematic aspects of PMSCs. Moreover, in a number of states, PMSCs are owned or controlled by government ministers.56 While one would
51

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53

54 55 56

However, as noted above, these practices have been set aside at times when deemed appropriate by the UN Secretary-General. See UNSG, Summary Study, para. 160. This was seen as a manner of ensuring as far as possible that the host states would not object to the composition of the force. Singer, Corporate Warriors, pp. 1045, for example; D. Avant, The Market for Force: The Consequences of Privatising Security (Cambridge University Press, 2001), pp. 18092. The Chief Executive Ofcer of a major US PMSC (who has proposed the use of his rm in UN peace operations) even issued a corporate newsletter celebrating the 2004 reelection of former President Bush and, furthermore, demands that his employees swear an oath to the US Constitution. See P. Singer, Humanitarian Principles, Private Military Agents: Implications of the Privatized Military Industry for the Humanitarian Community (2006) 13 Brown J World Affairs 10521, 113. See Zwanenburg, Accountability of Peace Support Operations, pp. 401. A conclusive answer may depend on articles of incorporation. M. de Goede, Private and Public Security in Post-War Democratic Republic of Congo in S. Gumedze (ed.), The Private Security Sector in Africa, Monograph 146 (Pretoria: Institute for Security Studies, 2008), pp. 3568, 45. See also U. Joras and A. Schuster (eds.), Private Security Companies and Local Populations: An Exploratory Study of Afghanistan and Angola (Berne: Swisspeace, 2008), pp. 512.

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presume that if the UN were contemplating contracting PMSCs as peacekeepers in some way it would attempt to screen out such companies, there may be no fail-safe solution. In any case, political disinterest is not the lone factor in ensuring impartiality. Implementing a peacekeeping mandate with impartiality entails an element of diplomacy and requires subtle communication skills.57 Problems with the impartiality of a PMSC may be more a matter of perception; nonetheless, the fact that they are corporate structures as opposed to nation states should not necessarily give rise to a presumption that they will always be more impartial than state forces. 2.1.3 Use of force in self-defence or defence of the mandate Early peacekeeping doctrine held that force was only to be used in self-defence by traditional interposition forces.58 Since the interpretation of the acceptable degree of force and in which circumstances it may be used has changed over time, this has become one of the thorniest questions of peacekeeping.59 The most recent ofcial restatement on the use of force in UN peace operations can be found in the Capstone Doctrine: it is widely understood that they may use force at the tactical level, with the authorisation of the Security Council, if acting in self-defense and defense of the mandate.60 The doctrine goes on to say:
A United Nations peacekeeping operation should only use force as a measure of last resort, when other methods of persuasion have been exhausted, and an operation must always exercise restraint when doing so. The ultimate aim of the use of force is to inuence and deter spoilers working against the peace process or seeking to harm civilians; and not to
57 58 59

60

UN DPKO and DFS, The Capstone Doctrine, p. 33. UNSG, Summary Study, paras. 17880. Trevor Findlay, The Use of Force in UN Peace Operations (Oxford: SIPRI and Oxford University Press, 2002); D. Shraga, The United Nations as an Actor Bound by International Humanitarian Law in L. Condorelli, A. M. La Rosa and S. Scherrer (eds.), Les Nations unies et le droit international humanitaire the United Nations and International Humanitarian Law: actes du colloque international loccasion du cinquantime anniversaire de lONU (Genve 19, 20, 21 octobre 1995) (Paris: Pedone, 1996); Mats Berdal, Lessons Not Learned: The Use of Force in Peace Operations in the 1990s (2000) 7 Intl Peacekeeping 5574; K. Cox, Beyond Self-defense: United Nations Peacekeeping Operations and the Use of Force (1999) 27 Denver J Intl L & Policy 23973; S. Chesterman, External Study: The Use of Force in UN Peace Operations (UN DPKO Best Practices Unit, undated). UN DPKO and DFS, The Capstone Doctrine, p. 34. It should be noted that the degree of force permitted in traditional peace operations has been the subject of great controversy, not least because it has uctuated considerably in practice and doctrine over time.

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seek their military defeat. The use of force by a United Nations peacekeeping operation should always be calibrated in a precise, proportional and appropriate manner, within the principle of the minimum force necessary to achieve the desired effect, while sustaining consent for the mission and its mandate. In its use of force, a United Nations peacekeeping operation should always be mindful of the need for an early deescalation of violence and a return to non-violent means of persuasion.61

The legal constraint on the use of force in peace support operations depends on whether the UN General Assembly or the UN Security Council may authorize coercive action outside the framework allowed for enforcement measures. It should be noted that despite a well-known extensive use of military force in ONUC, the International Court of Justice held that ONUC was not an enforcement operation on the grounds that the military action was not taken against a state.62 This singular interpretation, along with the fact that since the 1990s most peace operations are established by a Security Council resolution adopted under Chapter VII of the charter, has meant that the degree of force used may in fact entail engaging in hostilities. While, again, there is no inherent reason why a PMSC could not exercise force according to the principle of only in self-defence and defence of the mandate, a common reproach against them stems from their reputation for excessive force, regardless of their rules of engagement.63 This would militate against their use as a principal force in peace operations. Governments using PMSCs have insisted that they are restricted to using force only in self-defence;64 indeed, self-defence often forms the basis for the rules of engagement for PMSCs. We will discuss the meaning and limits of such self-defence later.65 In fact, it is not the limitation on the use of force, but rather the wide latitude given that poses problems for the use of PMSCs. The ability to use force at a tactical
61 62

63

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65

UN DPKO and DFS, The Capstone Doctrine, p. 35. Certain Expenses, p. 177. McCoubrey and White point out that the General Assembly took control over the operation for a short time and authorized an extensive use of force before the Security Council resumed control. See Blue Helmets, p. 49. ONUC was the rst UN peace operation in the Congo, established by UNSC Res. 143 (14 July 1960) on the basis of a request for military assistance by the government of the Congo. While many companies may dispute whether such a reputation is deserved, it is borne out by the actions of at least one major PMSC that, following its expulsion from Iraq, continues to be contracted by the US government in Afghanistan. See e.g. the Reply of Secretary of Defense Donald Rumsfeld to the Honorable Ike Skelton of 4 May 2004, www.house.gov/skelton/5404_Rumsfeld_letter_on_contractors.pdf. See Ch. 4 below.

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level indicates going beyond a narrow interpretation of self-defence. This inevitably brings up the question of combatant status, which will be discussed below. In addition, self-defence would not even cover the force used in all law-enforcement functions (police-type use of force), which is another common role of peacekeepers.66
2.1.3.i Use of force and combatant status Combatant status is a vexed question when it comes to peace operations and is notoriously one of the questions that plagues the use of PMSCs. The UN Safety Convention, which makes it a criminal offence to attack peacekeepers, applies in so far as peacekeepers are not engaged as combatants.67 While there are very good reasons to argue that soldiers participating in a peace operation must always be considered combatants, it must be acknowledged that there is a lack of clarity as to their classication.68 On the face of it, this ambiguity would make it seem that it is not problematic to include within the forces a contingent that does not, under international law, have combatant status. However, the reality is that all forces may be called upon, without their willing it or intending it, to engage in combat. At that time the ambiguity falls away and there would seem to be a denite need for peace force contingents to at least be capable of having combatant status. Without resolving this question here, and without wishing to confuse issues of jus ad bellum with matters of jus in bello, sufce it to reiterate that the fact that even conventional peace operations do use
66

67

68

Bothe, Peacekeeping, p. 682, para. 80, provides a good discussion of the contours of the use of force in peace operations. See also T. Gill, Legal Parameters for the Use of Force within the Context of Peace Operations in D. Fleck and T. Gill (eds.), The Handbook of the International Law of Military Operations (Oxford University Press, 2010). Convention on the Safety of United Nations and Associated Personnel, 9 December 1994, in force 15 January 1999, 2051 UNTS 363, Art. 2(2) (Safety Convention). The status of peacekeepers under IHL is not crystal clear in the treaties and documents governing their treatment. In addition to the threshold set by the Safety Convention regarding when they are engaged as combatants, according to the Rome Statute it is a war crime to intentionally attack peacekeepers as long as they are entitled to the protection given to civilians (Art. 8(2)(b(iii)). The UN Secretary-General Bulletin on the Observance by United Nations Forces of International Humanitarian Law somewhat confusingly indicates their status as non-combatants, as long as they are entitled to the protection given to civilians under the international law of armed conict: UN Doc. ST/ SGB/1999/13, 6 August 1999, Section 1, 1.1. This ambiguity has led some experts to conclude that although they may be military personnel, they have the status of civilians as long as they are not ghting in an armed conict. See e.g. M. Bothe, War Crimes in A. Cassese, P. Gaeta and J. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), p. 411.

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force on a tactical level means that whatever troops are contributed need to have the capacity under international law to use force. This issue raises serious but not completely unresolvable questions as to the capability of the Security Council to authorize a PMSC to act as members of a peace force or of the UN Secretary-General to include a PMSC (that is not somehow integrated into a states armed forces such that its members have combatant status) as a unique contribution from a given state.

2.2 The rules on establishing peace forces and PMSCs In order to know whether any of the methods of establishing a peace force would allow for a PMSC to be given a principal role as all or part of the force in a peace operation, it is imperative to understand how peace forces are created or established. As noted above, the mandate of a peace operation may be created through the adoption of a UN Security Council resolution or a UN General Assembly resolution. Once that mandate is dened, the force itself must be established; for this, there are a number of options available. First, the Security Council may delegate the implementation of a mandate to a regional organization. This method is often used when a mandate calls for a more robust use of force than is entailed in traditional peace operations. Second, the Secretary-General may establish a force by soliciting and accepting troop contributions from states. Such forces are considered to be subsidiary organs of the UN69 but also involve permanent staff of the UN Secretariat.70 Finally, there is the theoretical possibility for the UN to have its own forces at its disposal, in the spirit of Article 43 of the charter. Throughout this analysis, we acknowledge that the issue of whether a peace operation was created under a traditional or a Chapter VII mandate may inuence the options for the establishment of the force. In particular, the delegation of an authorization to use force is generally considered to be exclusively possible only under a Chapter VII resolution. Present-day peace operations, however, are often established in a resolution with a general nod to a threat to international peace and security, which opens the door to the whole resolution being considered as adopted under Chapter VII, even though the mandate may not necessarily entail enforcement action. Again, this discussion is limited
69

70

They are either subsidiary organs of the Security Council or of the General Assembly, depending on which principal organ adopted the resolution mandating the establishment of the peace operation. Bothe, Peacekeeping, para. 93.

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to peace operations over which the UN maintains authority and control, as distinct from enforcement actions in which the use of force is authorized but over which the UN Security Council refuses to recognize or assert its control or responsibility.71 Due to all of these factors, it is appropriate to focus on the means of establishing a force, and not the legal basis for the peace operation itself, in order to assess whether a PMSC may be given a key role in peace operations. 2.2.1 Delegation of the conduct of a peace operation to PMSC The UN Security Council has the power to delegate the conduct of peace operations to regional organizations and makes increasing use of this power.72 It has delegated peace operations or specic components or tasks thereof to NATO73 and the EU74 and has also set up a hybrid mission with the participation of the African Union.75 May the UN Security Council through a similar process delegate the conduct of a peace operation to a PMSC? To address this question we will consider the specic legal framework on delegation of the conduct of a peace operation to regional organizations or states, the limits of the implied powers of the organization and the general rules on delegation of UN Security Council powers.76

71

72

73

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76

E.g. the use of force authorized against Iraq in 1991 following its invasion of Kuwait. See UNSC Res. 678, 29 November 1990, UN Doc. S/RES/678. See Art. 53, UN Charter. See also D. Sarooshi, The Security Councils Authorization of Regional Arrangements to Use Force: The Case of NATO in V. Lowe et al. (eds.), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (Oxford University Press, 2008), pp. 22647. For example, certain aspects of UNPROFOR, and also IFOR/SFOR and KFOR in the Balkans. See Bothe, Peacekeeping, paras. 1449. See also Sarooshi, The Security Councils Authorization of Regional Arrangements to Use Force. For example, UNSC Res. 1778, 25 September 2007, authorizes the EU to deploy a police operation in Chad under MINURCAT, para. 6. UNSC Res. 1671, 25 April 2006, authorized the temporary deployment of an EU force to support the UN mission in DRC during the elections. For example UNAMID in Darfur, Sudan is a hybrid African Union/United Nations operation: UNSC Res. 1769, 31 July 2007. This hybrid operation may be something less than a straightforward delegation to the AU but it nevertheless relies on the same legal foundations in the UN Charter. The UNGA has never authorized other organizations to conduct peace operations that were not under its authority and control; therefore, our discussion will be restricted to the Security Councils powers in this section. See N. Blokker, Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by Coalitions of the Able and Willing (2000) 11 EJIL 54168, 548.

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Article 53(1) of the UN Charter explicitly authorizes the UN Security Council to, where appropriate, utilize regional arrangements or agencies for enforcement action under its authority. The enforcement powers referred to are the Chapter VII powers of the Security Council. Consequently, when the UN Security Council authorizes either member states or a regional organization to deploy as part of a peace operation, it tends to state explicitly in the relevant operative paragraphs of the resolution that it is acting under Chapter VII of the UN Charter.77 There is, thus, a specic authorization in the charter for the Security Council to delegate its Chapter VII powers to regional organizations. The essential question for our purposes is thus whether the Security Council may authorize coercive action under its Chapter VII powers or peacekeeping powers in traditional peacekeeping operations to entities other than regional organizations, even if that power is not set down in the charter. Even the power of the Security Council to delegate enforcement powers under its authority and control to states, as distinct from regional organizations, is not uncontroversial, at least in academic circles.78 Given that not all regional organizations with the capacity to use force are regional organizations within the meaning of the UN Charter, the Security Council has at times had to be creative in its use of language in order to authorize NATO to conduct peace operations under UN auspices.79 For example, UN Security Council Resolution 836, which was adopted to allow NATO to take military action to protect the safe areas in Bosnia in the mid-1990s, authorized Member States, acting nationally or through regional arrangements to take action under the authority of the Security Council and subject to close coordination with the Secretary-General.80 The controversy over this practice lies, to a certain extent, in the lack of an explicit power in the charter to authorize states to carry out its enforcement actions within peace operations. However, the UN is not
77

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See e.g. UNSC Res. 1778, 25 September 2007, operative para. 6; UNSC Res. 1671, 25 April 2006, last preambular paragraph. Blokker, Is the Authorization Authorized?, pp. 5445. While Blokker notes that states have also criticized this practice, the examples he refers to are exclusively those which the UN retains no control over the operation, such as Iraq in 1991. As these operations are widely considered to fall outside of what can be considered peace operations, that practice is not considered relevant to our analysis. Bothe refers to these forces as mandated forces. See Bothe, Peacekeeping, paras. 14459. Bothe takes the view that such forces are not peacekeeping forces due to their authorization to use force beyond self-defence. See Sarooshi, The Security Councils Authorization of Regional Arrangements to use Force, pp. 2302. UNSC Res. 836, 4 June 1993, para. 10.

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limited to the powers strictly set down in the charter; it is widely considered to possess implied powers in order to full its mandate.81 Whether one interprets those powers broadly or narrowly, they permit the UN Security Council to authorize states to carry out military enforcement actions under UN auspices. The logic is straightforward: given that the UN has a mandate from states to maintain international peace and security, as well as an explicit power to take military enforcement action, it must have the ability to use the necessary and appropriate means to perform its functions if the means set out in the charter are unavailable to it.82 Article 53 of the charter cannot provide a legal basis for delegating a peace operation to a PMSC, however, for the simple reason that PMSCs are not regional organizations. While it may be controversial whether NATO constitutes a regional organization within the meaning of Article 53, there is no question whatsoever that PMSCs, as private corporations, be they multinational or not, are not regional organizations.
2.2.1.i Implied powers Do these implied powers permit the UN to authorize not only states, but a PMSC to carry out a peace operation in its name under Chapter VII of the charter? There are a number of limits on the implied powers of the organization.83 The most relevant for the question whether the Security Council may authorize a PMSC to carry out a peace operation are: rst, that the use of the implied powers must be necessary for the organization to perform its functions and, secondly, that the use of the implied powers may not violate fundamental rules and principles of international law or the charter.84 Again, authorizing states
81

82

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84

Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, at 180. This is a narrow interpretation of the implied powers of the UN, which adverts to an explicit power in the charter to use force. See Blokker, Is the Authorization Authorized?, p. 547 for examples of broad and narrow interpretations of implied powers in this context. Ibid., pp. 5489 enumerates four. In addition to the two above, Blokker includes: that the implied power may not change the distribution of powers within the organization, and that the existence of explicit powers in the charter must not prohibit the recourse to the implied powers such as, for example, Art. 43 agreements. If the legal basis for peacekeeping is located in the text of the charter, however, any limitations would also have to be sought in the charters text or its interpretation. Others argue, however, that the UN benets from inherent powers such that it would not even be subject to the limitations of implied powers. See F. Seyersted, United Nations Forces in the Law of Peace and War (Leiden: Sijthoff, 1966), p. 155, cited in McCoubrey and White, Blue Helmets, pp. 445. The latter principle is considered by Blokker, Is the Authorization Authorized?, pp. 549 and 5524, to include aspects of the law on delegation; for our analysis, delegation will be considered separately.

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to carry out enforcement aspects of peace operations under its authority is considered to fall easily within these limitations.85 The question of whether it is necessary such that it meets the legal test for the exercise of implied powers for the UN Security Council to authorize a PMSC to carry out a peace operation is a question of fact that will be determined by the Security Council itself. If the UN deemed it necessary to establish a robust peace operation in order to maintain international peace and security, but no states were willing to act under a Security Council authorization or to contribute troops to such an operation, this requirement could be satised. In practice, however, this scenario is unlikely to arise since the negotiation for a mandate for a peace operation occurs simultaneously with efforts to drum up troop contributions from states and should thus be tailored to the support it can garner.86 Put another way, the Security Council will not adopt a resolution calling for a peace operation staffed with 100,000 troops when it knows it will only be able to get states to contribute 2,000. A more realistic and likely case of necessity can be made for an urgent deployment of forces in an acute situation as an interim solution, when national troop contributions will be slow in getting on the ground in the host state. There have been a number of efforts by the UN to develop rapid reaction forces and to create rapid deployment capability,87 but delay in deployment is a problem that has continued to plague the UN and is a niche PMSCs have sought to exploit.88 Due to serious efforts on the part of the UN to cover these gaps, necessity on these grounds should not arise, but the possibility of this scenario arising cannot be excluded. It does, however, raise other issues that may be problematic for PMSCs, which will be discussed below.89 The second limitation on implied powers that is especially pertinent to a discussion of the authorization of PMSCs to conduct a peace operation

85 86

87

88 89

Ibid. The Brahimi Report deals with the problem of unmatched mandates, paras. 10217. See also UN DPKO and DFS, A New Partnership Agenda: Charting a New Horizon for UN Peacekeeping (non-paper) (July 2009), p. 11. The development of this capacity was one of the key recommendations of the Brahimi Report (para. 117(a)). For more on efforts taken to implement this recommendation, see report of the Secretary-General, Implementation of the Recommendations of the Special Committee on Peacekeeping Operations and the Panel on United Nations Peace Operations (21 December 2001) UN Doc. A/56/732, paras. 2334. Discussed in more detail below in relation to Art. 43 forces. See below section A 2.3.

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is that implied powers must not contravene fundamental rules or principles of international law. This limitation raises the central question whether force authorized by the Security Council must be exercised by states. Put another way, would an authorization of the use of force to a non-state actor by the Security Council contravene fundamental rules of international law? The notion that military force may only be used by states seems to be embedded in the UN and collective security system. Put another way, the UN Charter does not regulate the use of force by non-state actors. This may be inferred by the fact that the UN is itself composed of states and is an inter-state organization, and states abhor the notion that force may be used legally by non-state actors. The UN Charter only authorizes states to use force in self-defence under Article 51 on their own initiative, not non-state groups.90 The regional organizations Article 53 refers to as being susceptible to UN authorizations to carry out enforcement action are likewise composed of states. Indeed, this precept is taken so much for granted that one group cites no legal authority for the assertion that [o]nly states can provide the military forces and civilian police needed in UN peace operations.91 It is widely considered to be a peremptory principle of international law that states are prohibited from using aggressive force (unless in selfdefence or authorized by the Security Council). Is there a corollary principle that when force is used legally, it may only be states or international organizations (composed of states) that may use it? It is difcult to answer this question for this particular context. The problem is that this question is inextricably bound up with all questions regarding the use of force by non-state actors, including terrorism. The UN High-Level Panel on Threats, Challenges and Change opined, [t]he norms governing the use of force by non-state actors have not kept pace with those pertaining to States. This is not so much a legal question as a political one.92
90

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92

This issue is in some ways linked to the problem of the use of force by states against nonstate actors in self-defence. If we consider, by analogy, the Wall and Congo v. Uganda cases, we may note that the ICJ tends to be very conservative in its interpretation of the charter in this regard. See Legal Consequences of the Construction of a Wall; Armed Activities on the Territory of the Congo (Congo v. Uganda) (Merits) [2005] ICJ Rep 168. W. J. Durch et al., The Brahimi Report at Thirty (Months): Reviewing the UNs Record of Implementation (2002) 8 Intl Peacekeeping: Ybk Intl Peace Operations 132, 16. See also W. J. Durch et al., The Brahimi Report and the Future of UN Peace Operations (Stimson Center, 2003), p. 70, http://www.stimson.org. Report of the High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, 4 December 2004, UN Doc. A/59/565, para. 159. In fact, the whole discussion occurs under the heading Dening Terrorism.

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The report goes on to discuss conventions and norms related to terrorism and the difculties in arriving at a unanimously agreed denition of terrorism. But this manifestation of non-state actor use of force would seem to have little in common with the use of PMSCs in peace operations under discussion. The Panel appears to be lamenting a lack of jus ad bellum framework for non-state actors and the use of force as well as inadequate jus in bello rules.93 It may be that the thrust of the debate on the terrorism denition indicates that, if there is a right of non-state actors to use force, that right exists only in relation to self-determination movements.94 Consequently, any use of force by non-state actors outside that context cannot claim to have colour of law under international law. On the other hand, even if consensus existed, rules on this type of use of force by non-state actors would seem ill-suited to apply to the PMSC question in the context of peace operations. One author attributes the particularly negative view of the use of force by non-state actors to the fact that the manageability of violence is dependent on the organizational structure in which it occurs.95 The latter general remark is relevant to our discussion, especially considering the fact that discipline within peace operations, whether in Chapter VI or Chapter VII operations, is left to states. Indeed, in all its efforts to create a rapid reaction force, the UN has never looked beyond the use of state forces. Given the lack of clarity on the general rules on the use of force by non-state actors for our discussion, it is appropriate to consider the more specic case of whether there is a general international legal rule prohibiting the use of mercenaries that could, by extension, be applied to private forces in this context. As our discussion below illustrates, at present, there is no customary law prohibition on the use of mercenaries in general;96 even less so is there a jus cogens prohibition that would bind the Security Council.97 Thus, while there is a strong argument that state forces should be used in peace operations, there does not appear to be a clear international legal
93 95 94 Ibid., paras. 15964. See ibid., para. 160 for a summary of the critical issues. Michael Schmitt, The Resort to Force in International Law: Reections on Positivist and Contextual Approaches (1994) 37 Air Force L Rev 105, 115. This does not mean that non-state actors are not organized, but that they do not usually have courts etc. See below, section A 5. See J. Frowein and N. Krisch, Article 42 in B. Simma (ed.), The Charter of the United Nations: A Commentary, 2nd edn (Oxford University Press, 2002), p. 711, para. 29 on jus cogens as a limit on Security Council powers.

96 97

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rule prohibiting the Security Council from exercising its implied powers by authorizing a PMSC to carry out a peace operation under its authority, subject to compliance with the rules on delegation and otherwise compliant with international law. This formal, legal conclusion is however subject to some caveats. Whether such a delegation would be fully in accordance with the philosophy of the UN Charter, and whether it could truly garner legitimacy in terms of state commitment to the peacekeeping effort, are open questions. Finally, we have serious concerns regarding their capacity to wield force within a known legal framework: above, we mentioned that the lack of combatant status of PMSCs poses certain problems for their use as peacekeepers. While a Security Council resolution adopted under Chapter VII of the charter could conceivably breach this gap, the murkiness of such a solution is worrisome.
2.2.1.ii The specic rules on delegation The limits on the power of the Security Council to delegate stem either from the charter or from general legal principles and the object and purpose of the delegation authority.98 That the Security Council may delegate peace operations to states is permitted, according to some, by Article 48 of the charter and there is no need to refer to a more general law or power of delegation.99 Since, however, PMSCs are not states and therefore not caught by Article 48, one would have to subscribe to the Security Councils general power to delegate as part of its implied powers. The legality of delegation of powers in UN law is rst subject to the requirement that the delegating authority possess the powers being delegated that is, the principle delegatus non potest delegare must be respected.100 That the Security Council has the authority to create peace operations is now settled. In addition, [t]he scope of the delegated powers must be precisely construed and their exercise must be effectively supervised by the Council.101 It is generally accepted that the Security
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99

100

101

Heike Krieger, A Credibility Gap: The Behrami and Saramati Decision of the European Court of Human Rights (2009) 13 J Intl Peacekeeping 15980, 1656, citing also Frowein and Krisch, Article 42. See Frowein and Krisch, Article 42, p. 713, para. 32. For such delegations based on a general power and not a specic charter article, see D. Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Oxford University Press, 1999), pp. 1618. Frowein and Krisch, Article 42, para. 33; see also Sarooshi, UN and the Development of Collective Security, pp. 203. Krieger, A Credibility Gap, pp. 1656.

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the limits on the right to resort to pmsc s

Council exercises effective control over UN commanded and controlled peace operations; the situation with respect to authorized enforcement actions is much less clear (although these have also been generally accepted as proper delegations).102 Finally, the entity to whom the power is delegated must exercize the power for the purpose or even possibly in the way stipulated by the delegator.103 The rst two issues are uncontroversial in the case of peacekeeping and the third is a matter of factual determination should such a delegation arise. The question as to whether the entity entrusted to carry out the delegated powers must somehow be public in nature is not addressed in the most authoritative study on the delegation by the Security Council of its Chapter VII powers.104 In fact, that study did not consider the possibility of delegation to a private entity at all, which could suggest that that author did not consider such a delegation to be within the scope of powers. On the other hand, it may simply signal that such a delegation is unlikely to occur and was unimaginable only ten years ago. In terms of the quality of the actor to whom the powers are delegated, Sarooshi merely comments, the naming of a person to exercize power by the entity that initially delegates power may involve an implicit assumption that the person was chosen due to particular institutional or other characteristics.105 Are there any other restrictions on the quality of the agent to whom the power is delegated based on general principles or the charter? A need for state or civilian control over such forces would seem to be unnecessary, since even when delegating to a regional organization, the Secretary-General retains overall authority and control over both the Force Commander and the operation as a whole.106 However, it should be recalled that in UN-authorized operations, the Secretary-General and/ or Security Council tend to exercise a lesser degree of control over specic uses of force. Sarooshi argues that the lawfulness of such delegations of power depend on the Council being able to exercise a sufcient
102 103

104

105 106

Ibid., p. 166; see also Blokker, Is the Authorization Authorized?. Sarooshi, UN and the Development of Collective Security, pp. 203, passage quoted is at p. 23. Sarooshi, ibid., considers delegation to the UN Secretary-General, to UN subsidiary organs, to UN member states and to regional arrangements. Ibid., p. 23. Sarooshi, Security Councils Authorization of Regional Arrangements to Use Force, p. 236. See also Bothe, Peacekeeping, para. 101.

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degree of authority and control over the exercise of the delegated powers such that it could decide to change at any time the way in which those powers were being exercised.107 In this regard, in Sarooshis estimation, the use of close air support by NATO in Bosnia in the mid-1990s was a lawful exercise of delegated power due to the fact that there was a dualkey approach: that is, both the Secretary-General and NATO had to agree on the use of force in order for it to go ahead, thus preserving UN control over the operation.108 However, that level of control has not always been present in what have been recognized as lawful delegations of Security Council powers. In Behrami v. France, the complainants sought redress for killing and maiming by remnants of unexploded cluster bombs in Kosovo.109 The families sued the sending states of the NATO forces that were part of KFOR, which was authorized as the peace force under UN Security Council Resolution 1244, and which were responsible for the areas in which the cluster bombs were located.110 The European Court of Human Rights (ECtHR) held the complaints to be inadmissible since the actions or omissions complained of could not be attributed to the states in question but only to the UN (not even to NATO). In arriving at its controversial conclusion, the Court was satised by the fact that NATO/ KFOR was required to submit regular reports to the Security Council and that the Security Council could revoke its authorization of the entire operation, in order to nd that the Security Council had ultimate authority and control over KFOR.111 The low level of control the Court sought for a valid delegation of Security Council powers acts as a powerful disincentive to supporting the possibility of delegation of a peace operation to a PMSC. Presumably in the case of a delegation to a PMSC, the SecretaryGeneral would, at a minimum, have to retain a high level of control over
107

108 109

110

111

Sarooshi, Security Councils Authorization of Regional Arrangements to Use Force, p. 239. Ibid., p. 238. Behrami v. France and Saramati v. Norway (App. nos. 71412/01 and 78166/01) (Admissibility) (GC) ECHR 2 May 2007 (Behrami). To clarify: the complainants were not suing NATO for having dropped the cluster bombs in the rst place, but for the fact that once French forces formed part of the peace operation on the ground, they failed to sufciently warn the local population of their existence and location in the area for which they were responsible. Behrami, paras. 12831, 135, 138, 140. For discussion of this controversial conclusion, see Krieger, A Credibility Gap; P. Bodeau-Livinec, G. Buzzini and S. Villalpando, Case comment in International Decisions (2008) 102 AJIL 32331, inter alia.

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the exercise of force. Admittedly, in delegations or authorizations to regional organizations, maintenance of control is sometimes a tricky matter since it must be reconciled with potentially competing provisions in the regional organizations constitution. However, since for a PMSC there is no competing constitutional authority (i.e. to the delegated organization, in the case of NATO), such control should be decisive as to the use of force.112
2.2.1.iii. Conclusion This analysis suggests that the Security Council may have the authority in limited circumstances to delegate the conduct of a peace operation, under the careful control of the Secretary-General and/or Security Council, and subject to the respect of the peacekeeping principles discussed above, to a PMSC. Several important caveats to this conclusion are worth mentioning, however. First, the type of peace operations in which states or regional organizations are authorised to use force beyond that required for self-defence remain controversial. In 1995, then Secretary-General Boutros-Ghali expressed his belief that it was desirable in the long term that the United Nations develop a capacity to engage in UN-commanded and controlled enforcement actions, even on a limited scale.113 In the 2000 Brahimi Report, the panel again recommended ensuring a capacity for robust peacekeeping.114 However, the Secretary-General was at pains to emphasize that even such robust operations were only those which already operated with the consent of the parties and the powers in question were only meant to deal with spoilers and criminals.115 The likelihood that the Security Council would delegate or authorize an already controversial form of peacekeeping to an equally controversial non-state actor may thus be regarded as slim.

2.2.2 Rules on whether the UNSG/UNSC may incorporate a PMSC as the sole contribution of a member state As noted above, the other, more common, method of establishing a traditional peace operation force is through the solicitation of troop contributions from UN member states and their incorporation into a UN force under UN command and
112

113 114 115

This is independent of the adequacy of the Secretary-Generals military decision-making capacity. UNSG, Supplement to An Agenda for Peace, para. 77. Brahimi Report, paras. 4855. Durch et al., The Brahimi Report at Thirty (Months), p. 9.

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control. UN-commanded and -controlled peace support operations are subsidiary organs set up by the UN Security Council under Article 29 of the UN Charter.116 As such, the Security Council has the authority to determine their composition. The UN Security Council delegates the authority to the Secretary-General to establish the peace force; furthermore, it is generally agreed that this power includes the power to determine the composition of the force.117 According to the usual practice, the Secretary-General appoints the commander-in-chief of the force,118 who is generally a high-ranking ofcer from a states national forces. National contingents are then placed under the command of the UN commander-in-chief, while the Secretary-General gives the general instructions and exercises general political guidance.119 The commander-in-chief is responsible for all military activities of the force. There is a clear chain of command from the Security Council through the Secretary-General to the commander-in-chief. The chain usually continues down through the national commanders of national contingents which are placed under the command of the UN pursuant to participating state agreements, be they formal or informal.120 Thus, the practice that has evolved by virtue of the fact that the Security Council does not have its own forces is that states propose to contribute their own troops to the operation or mission. This is usually done through informal consultations between the Secretary-General and potential troop-contributing states.121 Agreements are concluded between the UN and each troop contributing state and, in addition, a general Status of Forces Agreement for the overall force is usually (but not always) concluded between the UN and the host state.122 Again, as

116

117 118 121

122

There have been a few cases of peace support operations set up by the General Assembly but this is the exception to the rule and not sufciently current or predominant to warrant further consideration here. Sarooshi, UN and the Development of Collective Security, pp. 646; Certain Expenses case. 119 120 Bothe, Peacekeeping, para. 101. Ibid. Ibid., paras. 96 and 10812. Zwanenburg, Accountability of Peace Support Operations, p. 35. Zwanenburg notes that the Secretary-General also usually consults the Security Council about offers he has received and states that if the Council consents, the Secretary-General then concludes an agreement with the participating state. Ibid. The procedure he outlines gives a greater role to the Security Council than others indicate and suggests that the Secretary-General is merely the negotiator. For a short but helpful discussion, see Zwanenburg, Accountability of Peace Support Operations, pp. 3040. Bothe indicates that Status of Forces agreements in particular are not always agreed with Middle Eastern states, potentially due to disputed territorial status. See Bothe, Peacekeeping, para. 114.

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noted above, the principles guiding the composition of the force set down by then Secretary-General Dag Hammarskjld in 19568 were that no troops from the permanent ve members of the Security Council and no forces from any country which, because of its geographical position or for other reasons, might be considered as possibly having a special interest in the situation which has called for the operation should be included in the force.123 However, over time Secretaries-General have strayed from these principles and both of those types of troop contributions have been accepted in peace forces. It is broadly agreed that the UN Secretary-General enjoys a unilateral power to determine the composition of the force, and this principle is set out in some of the earliest UN doctrine on peacekeeping.124 Dan Sarooshi argues that the SecretaryGeneral in fact enjoys the discretion to determine the principles guiding the composition of the force.125 However, when considering the role of PMSCs in UN peace operations, difcult questions arise: is the SecretaryGenerals discretion completely unfettered or is there an implicit principle that the forces must be state or public forces; may the Secretary-General accept a states offer of a PMSC as its entire contribution to the operation? The concerns raised above regarding the general principles of peacekeeping and the ability of PMSCs to satisfy the requirements of consent, impartiality, and the rules on the use of force are especially pertinent to this discussion. When the Secretary-General is composing the peace force without the backstop of Chapter VII powers that is to say, when a peace operation is not clearly mandated under a resolution adopted under Chapter VII of the charter he must adhere to the principles of peacekeeping outlined above. If a PMSC offered by a state as its contribution does not satisfy those requirements, then on those grounds alone the Secretary-General should not accept that PMSC as part of the peace force. While all of the peacekeeping principles will play a role, it is likely that the lack of a host states consent to a PMSC force would be a paramount concern. Nonetheless, as noted above, it must be recalled that the Secretary-General enjoys wide powers of discretion and in rare cases could, if necessary and appropriate, deviate from those requirements.
123 124

125

UNSG, Summary Study, para. 160. Ibid.: the United Nations must reserve for itself the authority to decide on the composition of the force. See also para. 16 of the same document. See also Blase, The Role of the Host States Consent, pp. 5594. Sarooshi, UN and the Development of Collective Security, p. 66.

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A further key question is whether there is an unstated requirement that peace forces contributed by states must hail from UN member states or at least be state organs.126 There are a number of independent elements that could be marshalled in support of this contention. First, the General Assemblys 1950 Uniting for Peace Resolution recommends that states survey their resources to determine what contribution they may be able to make, which is broad enough to encompass PMSCs, but then Recommends to the States Members of the United Nations that each Member maintain within its national armed forces elements so trained, organized and equipped that they could promptly be made available, in accordance with its constitutional processes, for service as a United Nations unit.127 This recommendation belies an underlying presumption that forces will come from a states national armed forces. Moreover, the Security Council has very recently emphasized the importance of Member States taking the necessary and appropriate steps to ensure the capability of their peacekeepers to full the mandates assigned to them, and underlined the importance of international cooperation in this regard, including the training of peacekeepers.128 That resolution also refers to the duties of member states with respect to training peacekeepers in their national programmes. While these are recommendations or observations rather than obligations, they raise the question: can a member state argue that it is bearing its share of the burden by funding a PMSC as its troop contribution? It should be noted that in the more recent resolution there is no explicit reference to national armed forces but rather to their peacekeepers. In any case, Resolution 1327 shows that a contributing state has additional obligations in terms of overseeing or at a minimum, monitoring the training of peacekeepers it sends. This would go against any possibility of a state sending an unvetted, untrained PMSC, but it might not impede a state from sending a PMSC that it has properly trained. When exercising delegated powers of the Security Council under a Chapter VII mandate, however, the Secretary-General is bound only by the limitations that apply to the Security Council when acting under Chapter VII of the charter. Thus, it is agreed that the Secretary-General
126

127 128

We note, in this respect, that the United States relies on PMSCs to recruit and deploy its CIVPOL contributions to UN and other peace operations, which could be viewed as a loose precedent for similar methods of contributing armed forces. Uniting for Peace, UNGA Res. 377(V), 3 November 1950, paras. 7 and 8 respectively. UNSC Res. 1327, 13 November 2000, on the reception of the Brahimi Report.

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does not have the power to compel states to contribute forces to peace operations in the absence of Article 43 agreements.129 Beyond this limitation, given the broad powers of the Security Council under Chapter VII, unless it is contrary to jus cogens to accept private forces within the peace force, the Secretary-General is not legally prohibited from doing so. Reserving further argument to the section on mercenaries, below, sufce it to say here that there is no jus cogens prohibition on the use of private forces. There are additional concerns regarding related legal issues of peace operations that would have to be satised or addressed before a PMSC could be incorporated into a peace force. These will be addressed below, as they apply to peace forces no matter how they are established. Prior to that discussion, however, we will turn to the question whether a PMSC may be contracted by the UN as a standby force. 2.2.3 Article 43 and/or the establishment of a standby UN force composed of PMSCs Under Article 43 of the UN Charter, member states were supposed to conclude agreements with the Security Council allowing their armed forces (or certain elements of them) to be used by the Security Council on its call.130 That is to say, the Security Council was to have forces at its disposal, forces that it could compel to take action in order to full its obligations with regard to maintaining international peace and security. However, member states never agreed to put their national armed forces at the beck and call of the Security Council; as a consequence, peacekeeping evolved in an ad hoc manner and, as noted above, enforcement actions have been carried out by states or regional organizations under an authorization by the Security Council.131 Although standby agreements have been concluded through various fora in order to improve the cumbersome and slow procedure of putting together peacekeeping forces on an ad hoc and completely voluntary basis, there remains no standing force available to the Security
129 130

131

Sarooshi, UN and the Development of Collective Security, p. 66. Under Art. 44, the Security Council is obliged to invite member states not already represented on the Security Council to attend meetings and participate in decisions concerning deployment of those states forces. A Military Staff Committee set up under Art. 47 was to oversee operations. On the latter, Blokker, Is the Authorization Authorized?. See also A. Roberts, Proposals for UN Standing Forces: A Critical History in V. Lowe et al. (eds.), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (Oxford University Press, 2008), pp. 99130.

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Council.132 Not surprisingly, therefore, there have been calls to use private military and security companies as the UN Security Councils standing army, in lieu of Article 43 forces.133 This section will explore whether the establishment of such forces is a legal possibility. As is evident from the above, the initial intention was that UN forces under Article 43 would be comprised of units of state armed forces. This is indeed the letter of Article 43, which states:
All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

The article clearly calls for member state armed forces. However, as early as 1951 and continuing through the 1990s, there have been calls for a standing force composed of volunteers or individually recruited personnel, as opposed to national troop contributions. The rst of these was proposed by then Secretary-General Trygve Lie, to be made up of some 50,000 volunteers.134 Lie had called for (but quickly abandoned) the establishment of a UN Volunteer Reserve force in 1951.135 Sohn argued in 1958 that Article 42 of the UN Charter provides a legal basis for the Security Council to establish UN forces composed of units other than national forces.136 Yet another force was proposed in 1993 by Sir Brian Urquhart.137 In 1995, the Netherlands proposed the creation of a permanent, rapidly deployable brigade at the service of the Security Council
132

133

134 136

137

See Roberts, Proposals for UN Standing Forces, pp. 99130 for an excellent overview of the proposals through the decades. The most recent of these being that of Patterson, A Corporate Alternative; Patterson, Privatising Peace. See also S. Chesterman, The Dogs of War Can Keep the Peace: Mercenary Motives, International Herald Tribune, 14 August 2007, p. 6. It should be noted, however, that the UN itself appears to be less enthusiastic about the need to establish standing forces through Art. 43 or any other capacity: Roberts, Proposals for UN Standing Forces, p. 120, argues the notion is in decline in comparison with 1995. See also C. Spearin, UN Peacekeeping and the International Private Military and Security Industry (2011) 18 Intl Peacekeeping 196209, who argues that change in the industry means that PMSCs probably lack the capacity to be effective in such roles. 135 Roberts, Proposals for UN Standing Forces, p. 103. Ibid. L. B. Sohn, The Authority of the United Nations to Establish and Maintain a Permanent United Nations Force (1958) 52 AJIL 22940, 230. B. Urquhart, For a UN Volunteer Military Force, New York Review of Books, 10 June 1993, vol. 40.

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with personnel recruited on an individual basis.138 Although convincing criticism may be made of the ultimate utility of any standing force (be it comprised of national forces or volunteers),139 the crux of the matter for our purposes is whether it is within the powers of the Security Council to establish its own force using exclusively private military and security companies. The implied-powers doctrine discussed above afrms that the Security Council is not limited to using only the kinds of forces enumerated in Chapter VII.140 In that case, what limits, if any, are there on the forces it may create? Sohn argues that it seems possible to envisage the establishment and use of a U.N. Force by the Security Council, and the only obstacle to the use of this method is the requirement of unanimity of the permanent members of the Security Council for any such action.141 Implicitly, then, according to Sohn, as long as the force could pass muster in the Security Council, the Council is free to compose it as it sees t. Sohn further argued that the Secretary-General could establish a force under Article 97 within the Secretariat, and thought that mechanism to be admirably suited to recruitment of volunteers for such a Force.142 He envisioned it working as follows:
If the General Assembly were willing to make the necessary nancial appropriations, the Secretary General could recruit as many individuals as the Assembly should authorize, provide for their training as military units of the Secretariat, and send them on such missions as the Assembly might direct.143

The only limitations Sohn foresees as to the Secretary-Generals recruiting capability are in terms of numbers.

138

139

140 141 142 143

Netherlands Non-paper for a UN Rapid Deployment Brigade, cited in Roberts Proposals for UN Standing Forces, p. 117. Roberts, Proposals for UN Standing Forces, pp. 12530. P. Diehl argues that the creation of a permanent peacekeeping force is not a panacea to solve all problems relating to peacekeeping and its ad hoc methods: International Peacekeeping (Johns Hopkins University Press, 1993), pp. 11719. See also P. Diehl, Peace Operations (Cambridge: Polity, 2008), pp. 928. Diehl never canvasses the possibility of a private standing force. Reparation for Injuries, p. 180. Sohn, Authority to Establish and Maintain a Permanent UN Force, p. 231. Ibid., p. 235. In this regard Sohn was anticipating the GA would act pursuant to the Uniting for Peace Resolution, as he had before him the very recent example of UNEF, which was set up under that very procedure. See ibid., p. 235.

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The most comprehensive recent paper (from a legal perspective) proposing the use of PMSCs as a standby force canvasses some of the same possibilities as Sohn144 but settles on Chapter VII as the ideal source of authority for the Security Councils power to raise and maintain a contract force.145 Specically, that paper proposes that the UN Security Council should create a Contractor Directorate as a subsidiary body under Article 29, which would be empowered to assess tenders submitted by PMSCs and also run a to-be-created UN criminal justice system in order to exercise discipline over the contractors.146 The author argues that enabling PMSC employees to participate in UN operations in this manner may provide the same opportunity to those individuals as lauded by Sir Brian Urquhart in his call for volunteers: that it could be an inspiring new dimension for national military service.147 The refrain throughout earlier proposals for such a volunteer force is for recruitment of individuals. This word is used in contradistinction, certainly, to the national units of state armed forces. But does it have any further signicance? And does the fact that private military and security companies are for-prot ventures affect their employability in this context, in contrast to individual volunteers, who are presumably intending to be paid, but not to be a protable business? As the creation of a standing UN force as a subsidiary body of the Security Council is the most likely scenario, the following will consider whether there are limits in this respect. First is the question of the general matter of the UN Security Councils ability to establish its own, non-state-based force. In the 1960s, an early authority on UN peace operations, D. W. Bowett, asserted that Nothing in the charter specically precludes the establishment of a permanent Force, and, as we have seen, both the Assembly and the Security Council have powers wide enough to enable them to establish a permanent Force as a subsidiary organ for purposes necessary to the maintenance of international peace and security.148 The notion that a permanent standing force is both within the purview of the Security Council and desirable has remained present throughout the decades since. The strongest proponents for such a force argue that it could allow the Security Council to
144 146 145 Patterson, A Corporate Alternative, p. 222. Ibid., pp. 2223. Ibid., pp. 223 ff. Patterson (p. 227) argues that a UN criminal justice system is necessary because states may wish to distance themselves from their citizens who as individuals participate in risky UN operations. Ibid., p. 226, n. 54. D. W. Bowett, United Nations Forces: A Legal Study of United Nations Practice (London: Stevens, 1964), p. 327.

147 148

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act when states are reluctant to put their national forces in harms way, despite evident catastrophic consequences if nothing is done for example, in Rwanda.149 The Security Council could thus full its primary function, maintaining international peace and security. But is the fact that nothing in the charter specically precludes it sufcient to nd that it is lawful? In this vein, one may enquire whether the notion that the Security Council may, in effect, create its own army somehow contradicts the spirit of the charter and its need to rely on the co-operation of member states when it comes to enforcement action or peacekeeping. Understanding the reasons for the failure to conclude Article 43 agreements with states could provide insight for the stateUN balance of power argument. The predominant reason given is that states wish to retain control over how their national forces would be used; another is that states hesitate to give the UN Security Council the means to carry out its enforcement action with a high degree of independence. The technical reason is that the UN Military Staff Committee was unable to come up with terms for the Article 43 agreements acceptable to all ve permanent members of the Security Council such that no agreements could be concluded.150 Areas of disagreement included how many troops each permanent member of the Security Council would have to provide, where the forces would be stationed, and what the overall strength of the force would be.151 Coupled with the fact that some states have supported proposals for a standing force composed of individually recruited members,152 these rather prosaic reasons for failure to provide the Security Council with its own force do little to reinforce a notion that a standing force must necessarily be comprised of national armed forces.153 On a more technical legal analysis, the law on subsidiary organs appears to permit the stafng of a standby force through recruitment of PMSCs. The UN Charter provides no denition of subsidiary organs. Moreover, subsidiary organs do not necessarily have to be composed exclusively of member
Roberts, Proposals for UN Standing Forces, pp. 11314. 151 See Frowein and Krisch, Article 42, pp. 7623, para. 9. Ibid. In addition to the Dutch proposal, the Canadian government backed a proposal in the 1990s for a standby force that retained the possibility for an individually recruited force. See Roberts Proposals for UN Standing Forces, pp. 11819. Admittedly, the Brahimi Report laments, [m]any Member States have argued against the establishment of a standing United Nations army or police force, para. 85. However, concerns appear to be related to costs, where the force would be stationed, and what laws would apply to it. See Ko Annans statement, cited in Roberts, Proposals for UN Standing Forces, p. 121.

149 150 152

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states, but may be comprised of individuals in their personal capacity.154 There are at least four preconditions for the lawful establishment of a subsidiary organ: it must be established and under the control of a UN principal organ, its establishment must not violate the delimitation of Charter powers between the principal organs, and the subsidiary organ must possess a certain degree of independence from its principal organ.155 Finally, according to Sarooshi, What will preclude the lawful establishment of a subsidiary organ is if the principal organ does not possess the express or implied power under the Charter to establish a subsidiary organ to perform certain functions in the area.156 It is clear that peacekeeping forces are subsidiary organs (usually of the Security Council).157 Nothing in the foregoing would seem to impede the Security Council from establishing a subsidiary organ comprising a standing force comprised exclusively of PMSCs. The principle that the principal organ exercises authority and control over its subsidiary bodies entails the consequence that the principal organ possesses the competence to determine the membership, structure, mandate and duration of existence of its subsidiary organ.158 This means that the Security Council has the power to create a subsidiary body, staffed either by individually hired professionals or units, of either permanent or temporary duration, and to set the terms of reference of such a body. Again, all of the proposals above refer to the recruitment of individuals, whereas stafng a permanent force with PMSCs would involve the interposition of a corporate structure. This has the potential to weaken the control of the Security Council over the quality of individuals recruited. While on the face of it, on purely legal grounds, there may be no apparent reason the recruitment of volunteers necessarily has to occur on an individual basis rather than through a corporate structure, there may be important differences in principle. Where persons recruited are more inclined to follow directions from the company employing them than the UN, serious issues may arise.159 On the other hand, a
Sarooshi, The Legal Framework Governing United Nations Subsidiary Organs (1996) 67 British Ybk Intl L 41378, 41516. Examples include the international criminal tribunals, which are not staffed by contingents sent by states but by individuals hired directly by the tribunal. 156 Ibid., pp. 41617. Ibid., p. 431. As widely accepted and noted by Sarooshi, UN Subsidiary Organs, p. 436. Ibid., pp. 4489. See K. Bolkovac, The Whistleblower (London: Palgrave Macmillan, 2011) (passim) for credible allegations on the intervention of US-based PMSC Dyncorp in some of the dayto-day activities of the civilian police it recruited and deployed to Bosnia in the 1990s.

154

155 157 158 159

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mechanism of quality control for recruiting standards could be agreed with a PMSC.160 Unpalatable as it may seem for some, there would appear to be no prima facie impediment to the Security Council deciding that a for-prot company may be a member of its subsidiary organ.161 Thus, subject to the discussion above on principles of peacekeeping, and the discussion below on the responsibility to discipline and punish peacekeepers who commit crimes, this analysis suggests that the Security Council may have the competence to create a subsidiary organ constituting a standing force comprised of one or more PMSCs.

Possible related legal problems with PMSC as a peace force Although it may legally be possible for a PMSC to serve in a UN peace operation as part of the force, a number of important legal issues would have to be resolved, in addition to the critical issue of combatant status mentioned above. These relate to lacunae in respect of mechanisms for enforcing military discipline and criminal prosecution and punishment, which are normally reserved for sending states, and the problem of a lack of a Status of Forces Agreement.
2.3.1 Discipline The general legal framework that applies to peace operations as agreed in participating state agreements stipulates that the contributing state retains control over military discipline and is responsible for criminal prosecution of its own troops should they be involved in criminal activity. These mechanisms are reiterated and reinforced by recent UN attempts to develop an international convention on the criminal accountability of UN ofcials and experts on mission.162
160

2.3

161

162

Again, however, in this regard, Bolkovac alleges that Dyncorp recruited and deployed CIVPOL ofcers with less than the requisite number of years of service in a state police force. Ibid., p. 29. See the discussion below, section A 5 regarding mercenaries etc. Member states may quibble over footing a bill for a for-prot company, however. In 2007, the UN Secretariat expressed its general support for the idea of a convention. Note by the Secretariat, Criminal Accountability of United Nations Ofcials and Experts on Mission, UN Doc. A/62/329, 11 September 2007; however, the current approach favours prosecution by national states and inter-state co-operation. The UN is limited to internal investigations not amounting to criminal prosecution. See UN Secretary-General, Prosecution of Crimes against Deployed Peacekeepers, UN Doc. A/65/700, 28 January 2011, para. 6. See also Marco Odello, Tackling Criminal Acts in Peacekeeping Operations: The Accountability of Peacekeepers (2010) 15 J Conict and Security L 34791.

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The proposed convention, which is being revised through various ad hoc committees and working groups, would apply to UN ofcials, experts on mission and, according to the Secretariat, should also cover persons hired as contractors and consultants.163 The current drafts anticipate that the host state will have primary jurisdiction over criminal acts (not of peacekeeping troops these retain immunity and are subject only to their own states military and criminal justice systems), followed by the alleged perpetrators national state. If a PMSC is sent by a state as its sole contribution to a peace operation, unless that state makes explicit provision for exercising its military or criminal jurisdiction, that PMSC should not benet from immunity. In any case, the use of such forces as troops contributed by a state is clearly not contemplated by the current proposed convention for criminal repression. 2.3.2 Status of Forces Agreements A second issue arises in connection with the need for a Status of Forces Agreement (SOFA) with the host state. This agreement deals in particular with the status, privileges and immunities of the members of the peace force and is concluded between the UN and the host state. The UN has a model SOFA that acts as the basis for these agreements, which does not mention PMSCs at all.164 However, even with the current delays in getting peacekeepers on the ground, it is often the case that a SOFA is not concluded with the host government prior to their arrival.165 It is therefore necessary to have an interim solution; consequently, some have argued that the UN Model SOFA is customary law.166 While this solution, though not universally
163

164

165

166

Note by the Secretariat, Criminal Accountability of United Nations Ofcials and Experts on Mission, UN Doc. A/62/329, 11 September 2007, paras. 346. Note that there was a committee in the Fourth Committee (UNGA) (Ad Hoc committee) and also in the Sixth Committee dealing with the same issue. Work continues on this issue. See Model Status-of-Forces Agreement for Peace-keeping Operations, 9 October 1990, UN Doc. A/45/594; Memorandum to the Assistant Secretary-General for Peacekeeping Operations on Privileges and Immunites and Facilities for Contractors Supplying Goods and Services in Support of United Nations Peacekeeping Operations, 23 June 1995, in United Nations Juridical Yearbook (1995) pp. 4078. See also O. Engdahl, Protection of Personnel in Peace Operations: The Role of the Safety Convention against the Background of General International Law (Leiden: Martinus Nijhoff, 2007), pp. 1656. Ray Murphy, UN Peacekeeping in Lebanon, Somalia and Kosovo: Operational and Legal Issues in Practice (Cambridge University Press, 2007), p. 110, indicates that UNIFIL was on the ground in Lebanon for nearly twenty years without a SOFA. In particular, E. Suy, Legal Aspects of UN Peace-keeping Operations (1988) 35 Netherlands Intl L Rev 318, 320; O. Engdahl, The Legal Status of United Nations and Associated Personnel in Peace Operations and the Legal Regime Protecting Them in

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accepted, may work for state national troop contingents, it is much less clear whether it could apply to PMSCs. In particular, due to the lack of national oversight and clear lines of discipline and criminal jurisdiction outlined above, according immunity to a PMSC peace force on the basis of a customary norm formed for state actors is highly problematic. This issue is signicant, because it affects PMSCs most at precisely the moment when they are held out as being most potentially useful at the very urgent initial period of a peace operation. Clearly, a SOFA would have to settle issues regarding PMSC status, immunities (if any) and privileges (if any) prior to deployment. A few additional points give us pause. For example, if a troopcontributing state disagrees with the force commander or representative of the Secretary-General on the interpretation of the mandate, the appropriate forum to raise the issue is the Security Council.167 The ability of non-state actors to appear before the Security Council has thus far been limited to leaders of peoples in territories either subject to peace operations or under administration.168 This option is thus not open to PMSCs participating in their own capacity. A state sending a PMSC as its force could presumably appear on behalf of the PMSC, but if it were to refuse to do so, then the PMSC, which is the actor on the ground, has no means to voice potentially valid opposition.

Regional organizations conducting peace operations and PMSCs As noted above, under Chapter VIII of the UN Charter, the UN Security Council may authorize regional organizations169 to carry out enforcement actions. The UN High Level Panel recommended that all peace operations and not just enforcement actions by regional
G. L. Beruto (ed.), International Humanitarian Law, Human Rights and Peace Operations (San Remo: International Institute of Humanitarian Law, 2008), pp. 12631, 128. Sarooshi, UN and the Development of Collective Security, p. 69. For example, members of Kosovos parliament have been able to appear before the UNSC even prior to the unilateral declaration of independence. In the case of Western Sahara, the leaders of POLISARIO have sent letters to the UNSC. In fact the precise term is regional arrangements or agencies but it is considered to encompass regional organizations. See M. Zwanenburg, Regional Organizations and the Maintenance of International Peace and Security: Three Recent Regional African Peace Operations (2006) 11 J Conict & Security L 483508, esp. 4889. For a comprehensive discussion, see A. Abass, Regional Organizations and the Development of Collective Security: Beyond Chapter VIII of the UN Charter, Studies in International Law Series (Oxford: Hart, 2004).

2.4

167 168

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organizations occur only pursuant to Security Council resolutions,170 but states did not adopt this recommendation in the World Summit Outcome document in 2005.171 Indeed, regional organizations do not need UN Security Council authorization in order to conduct traditional peace operations.172 Nevertheless, regional organizations conducting peace operations without a Security Council mandate will have to comply with the fundamental principles of traditional UN peace operations if they are not to contravene the UN Charter.173 The principles of consent and impartiality are thus the cornerstones of such operations. When it comes to the degree of force that may be used, a regional organization using more robust force in support of the government requesting its presence will likely fail to be impartial and therefore, even if consented to, will not be considered as a traditional peace operation. Used impartially, however, even robust force can conform to peacekeeping principles. Regional organizations delegating aspects of peace operations to PMSCs will thus have to comply with the principles of traditional peace operations discussed above. If the operations are established pursuant to UN Security Council resolutions, the use of PMSCs will furthermore have to comply with the terms of the resolutions. Any further study of the possibility of regional organizations to delegate aspects of peace operations to PMSCs will be limited by the internal law of the organization in question. For its part, the EU does not yet have a law or even a public policy on the use of PMSCs, although it is currently under review in a number of subcommittees.174 The African Union (AU)
170

171

172

173

174

Report of the High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, UN Doc. A/59/565, 4 December 2004, para. 272(a). The panel did acknowledge that in some urgent situations the authorization may be sought after the operation has already begun. R. Durward, Security Council Authorization for Regional Peace Operations: A Critical Analysis (2006) 13 Intl Peacekeeping 35065. World Summit Outcome, UNGA Res. 60/1, 16 September 2005, UN Doc. A/RES/60/1 (24 October 2005). Art. 52 of the UN Charter specically states that Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that both the agencies and their activities are consistent with the Purposes and Principles of the United Nations. See also Durward, Security Council Authorization for Regional Peace Operations, p. 352. For a study on peace operations by three different regional organizations in Africa that did not occur subsequent to UN Security Council authorization, see Zwanenburg, Regional Organizations. European Parliament, Subcommittee on Human Rights, Exchange of Views on the EUs Role in Combating Human Rights Violations by Private Military and Security Companies

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does not have a specic law or policy on PMSCs.175 In at least some cases, the use of PMSCs by regional organizations has in fact been paid for by governments outside of the organization and the region for example, the United States paid for transport and logistics by ICI of Oregon to ECOWAS in Liberia.176

2.5 Conclusion When it comes to PMSCs and peace operations, former UN SecretaryGeneral Ko Annan is frequently quoted as saying that he once considered the option of hiring a PMSC to help with the Rwanda conict but decided against it on the grounds that the world is not ready to privatize peace.177 This statement should be wielded with caution, however. Annan was not plotting to send a PMSC in to ght the Rwandan government or Interahamwe; instead, he considered their use to help separate combatants from civilians in the refugee camps in (then) Zaire. This represents a much more limited, non-combatant use of PMSCs than any of the scenarios discussed above. Sarah Percy argues that the general demonization of private forces by the General Assembly178 makes it impossible for the DPKO to have recourse to PMSCs.179 The two ofcials she cites in support of this
(PMCs/PSCs) 9 February 2009, Brussels; European Parliament, Policy Department External Policies, The Increasing Role of Private Military and Security Companies (October 2007) (A. Bailes and C. Holmqvist), www.europarl.europa.eu/meetdocs/2004_2009/documents/ dv/droi_090209_313/DROI_090209_313en.pdf. In practice, there is both a military and a civilian component to ESDP operations. The military component is led by an operations commander, who is responsible for awarding contracts with private contractors in that domain. For PMSCs contracted to the civilian component of a peace operation, the mission itself would directly contract the PMSCs, but the Council of the EU remains responsible for civilian missions. See Guido den Dekker, The Regulatory Context of Private Military and Security Services at the European Union Level in Christine Bakker and Mirko Sossai (eds.), Multilevel Regulation of Military and Security Contractors (Oxford: Hart Publishing, 2012), pp. 3152; Elke Krahmann, Regulating Military and Security Services in the European Union in A. Bryden and M. Caparini (eds.), Private Actors and Security Governance (Geneva: LIT and DCAF, 2006), pp. 189212. Indeed, for the AU, the issue is for the moment solely dealt with by the OAU Mercenary Convention. ICI of Oregon website: www.icioregon.com. UN Secretary-General Ko Annan, 35th Annual Ditchley Foundation Lecture, 26 June 1998, UN Press Release SG/SM/6613. See below section on Mercenarism, A 5. Sarah Percy, The Security Council and the Use of Private Force in V. Lowe et al. (eds.), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (Oxford University Press, 2008), pp. 62440.

175

176 177

178 179

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contention, the chief of the Best Practices Unit of DPKO and director of Executive Ofce of the Secretary-General, indicate that the stigma associated with PMSCs renders their use impossible even though their staff might be superior to some of the peacekeeping contingents currently provided to the UN.180 It is possible that those ofcials have not thought through the ramications of the lack of state input and control on the framework for peace operations. Political concerns aside, there would seem to be few legal impediments to the use of PMSCs as standing forces or as contingents in peace operations. There are, however, two further elements of peace operations that the Department of Peacekeeping Operations has underscored as essential for success and that are worthy of discussion in this context. These are the legitimacy and credibility of the operation.181 With respect to legitimacy, the Capstone Doctrine states:
The uniquely broad representation of Member States who contribute personnel and funding to United Nations operations further strengthens this international legitimacy.182

If this is indeed true, stafng a peace operation with private companies rather than state forces could have a signicant impact on the overall legitimacy of the operation. The lack of political will of states to put their own forces in harms way in such a scenario could signal a failure of international solidarity, which could be a severe blow to the institution of peacekeeping.

3 Humanitarian organizations and the use of PMSCs


There is presently a broad questioning as to whether humanitarian organizations should or may rely on armed protection, be it through armed forces involved in the conict, local militias or other means.183 The principal concern is that the use of armed protection may
180 181 182 183

Ibid., pp. 6389. UN DPKO and DFS, The Capstone Doctrine, pp. 36 and 38 respectively. Ibid., p. 36. J.-C. Run, The Paradoxes of Armed Protection in F. Jean (ed.), Life, Death and Aid: The Mdecins sans Frontires Report on World Crisis Intervention (London: Routledge, 1993), pp. 11123. C. Buchanan and R. Muggah, No Relief: Surveying the Effects of Gun Violence on Humanitarian and Development Personnel, Humanitarian Dialogue Report (2005). On humanitarian aid in conict situations more generally, see R. A. Stoffels, Legal Regulation of Humanitarian Assistance in Armed Conict: Achievements and Gaps (2004) 86 Intl Rev Red Cross 51546.

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compromise the exclusively impartial, neutral and independent nature of the work of humanitarian agencies, and that this may negatively affect their ability to provide relief. Any inquiry into whether international law has anything to say about whether humanitarian organizations may contract PMSCs to provide armed security for aid delivery in conict situations is thus part of the wider controversy over civilmilitary relations and humanitarianism. Here, we will consider the laws of the humanitarian relief organizations and whether they prohibit or constrain the use of PMSCs.184 We will deal at a later point with the obligations on PMSCs imposed by IHL when they are involved with humanitarian aid or relief work as those norms are closely linked to concepts we will develop in our discussion on the jus in bello.185 This is not a hypothetical investigation; the most detailed and comprehensive study on PMSCs and humanitarian work concluded: Though an exceptional practice, contracted armed security has been used at various times by virtually all major international humanitarian actors,186 including the United Nations (UN) and the International Committee of the Red Cross (ICRC).187 International organizations engaged in relief work may have their own internal law or policies on the use of PMSCs to provide armed protection for aid operations. The internal laws of international organizations may be considered to form a discrete part of international law and thus, if laws regarding PMSC use exist, would form an international legal framework for the organization in question.188 These organizations must therefore be
184

185 186

187

188

The question of humanitarian missions as a type of UN peace operation will not be considered here as it is considered globally within the discussion of peace operations. See Ch. 4, section E 4 below. A. Stoddard, A. Harmer and V. DiDomenico, The Use of Private Security Providers and Services in Humanitarian Operations, HPG Report 27 (2008), p. 12. In this section we will not deal with the allegation that some PMSCs hold themselves out as humanitarian organizations and thus actively contribute to blurring the lines between true non-prot organizations and PMSCs themselves. See Report of the UN Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of People to Self-determination, 9 January 2008, UN Doc. A/HRC/7/7, p. 20. James Cockayne cites the ICRCs Doctrine 60 which guides decision-making as to whether armed guards may be used, which he references as: ICRC, Protection of ICRC operations, Condential Internal Document, DOCT(60 2002/1; DC/DC, 2002/26, 2 January 2002. See Cockayne, Commercial Security, p. 10, n. 40. C. F. Amerasinghe, Principles of the Institutional Law of International Organizations, 2nd edn (Cambridge University Press, 2005), pp. 1320. See also A. J. P. Tammes, Decisions of International Organs as a Source of International Law (1958) 94 Recueil des Cours de lAcadmie de Droit International 261.

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distinguished from non-government organizations (NGOs), the internal policies of which do not constitute international legal obligations. The UN does not have a clear legal rule prohibiting its agencies or subsidiary bodies from contracting PMSCs to protect humanitarian aid. A General Assembly resolution on outsourcing prohibits the Secretary-General from allowing outsourcing activities that could compromise the safety and security of delegations, staff and visitors,189 compromise the international character of the organization190 or that will result in any breach of established procedures and processes.191 While some seem to consider that this resolution essentially prohibits the UN from contracting PMSCs, in practice it has no such effect.192 There are also sets of non-binding guidelines for the UN, established by the UN Inter-Agency Standing Committee.193 UN assistance convoys may only use armed PMSC guards if their use is approved by the UN Security Co-ordinator (now UNDSS). Finally, a working group of the Human Rights Council has recommended that:
United Nations departments, ofces, organizations, programmes and funds establish an effective selection and vetting system and guidelines containing relevant criteria aimed at regulating and monitoring the activities of private security/military companies working under their respective authorities. They should also ensure that the guidelines comply with human rights standards and international humanitarian law.194
189

190 191

192

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194

Res. Outsourcing Practices, UNGA Res. 55/232, 23 December 2000, UN Doc. A/Res/55/ 232, para. 4(b). Ibid., para. 4(c). Ibid., para. 4(d). Note that para. 4(a) relates to true cost effectiveness. All three parameters have been reiterated in subsequent resolutions. See e.g. Res. Outsourcing Practices, UNGA Res. 59/289, 15 April 2005, UN Doc. A/Res/59/289 (adopted without a vote). Stoddard, Harmer and DiDomenico, The Use of Private Security Providers and Services in Humanitarian Operations, p. 24, consider the language to be ambiguous at best. The fact that the UN has guidelines for contracting armed PMSCs is further evidence that such contracts are not a priori prohibited. Moreover, in 2010, the UN contracted a PMSC to provide security for UNAMA in Afghanistan. Five of those guards were killed in a mob attack on the UNAMA headquarters in Mazar-I-Sharif in March 2011. See UN News Service, In Afghanistan, UN Staff Remember the Quiet Heroes Killed in Mob Attack, www.un.org/apps/news/story.asp?NewsID=38013&Cr=afghan&Cr1=#. UN IASC, Use of Military or Armed Escorts for Humanitarian Convoys: Discussion Paper and Non-Binding Guidelines (14 September 2001). (As approved by IASC and UN Ofce of Legal Affairs.) Additional UN guidelines are found in UN IASC (and OCHA), Civil-Military Guidelines and Reference for Complex Emergencies (2008). Human Rights Council, Report of the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of People to Self-Determination, 9 January 2008, UN Doc. A/HRC/7/7, para. 60.

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This recommendation, coming from the working group within the UN that is most actively involved with the treatment of PMSCs under international law, clearly shows that internal UN law does not prohibit the contracting of PMSCs in conducting its humanitarian activities. This should by no means be construed as saying that the UN does not have policies on the use of PMSCs that are based in pragmatism and humanitarian ethics, but merely that it has no explicit law prohibiting their use.195 In addition, specic UN agencies may have their own policies. For the UN High Commissioner for Refugees, for example, the civilian and humanitarian character of assistance is a key principle, leading to considerable reluctance on the part of the UNHCR to contract PMSCs to perform various roles in refugee camps.196 For its part, the ICRC has a general policy against the use of armed protection for any aspects of its work197 but has used them in exceptional situations. *** In the following two sections, we turn to two specic regimes relating to the use of private force in international law in order to determine whether and how they limit recourse to the use of PMSCs privateering and mercenarism.

The prohibition of privateering and the use of private military and security companies

Up until the middle of the nineteenth century, it was common for states involved in armed conicts to grant commissions to private merchant vessels to intercept and capture enemy ships and their cargo. The participants were called privateers, or corsaires in French. While the specic rules regarding which goods on which ships were subject to capture may have been controversial and varied over time (e.g. enemy goods on neutral ships,
195

196

197

As of May 2012, the UNDSS was rumoured to be in the process of developing a new policy on the use of PMSCs. See esp. UN HRC, Executive Committee of the High Commissioners Programme Standing Committee, The Security, and Civilian and Humanitarian Character of Refugee Camps and Settlements, 14 January 1999, UN Doc. EC/49/SC/INF.2, esp. paras. 1517 (repr. (2000) 12 Intl J Refugee L, 50513). ICRC, Report on the Use of Armed Protection for Humanitarian Assistance, Extract from Working Paper, ICRC and International Federation, Council of Delegates, Geneva, 12 December 1995.

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neutral goods on enemy ships), the practice was widely accepted.198 The power to grant such commissions is even entrenched in the US Constitution.199 A mid-nineteenth-century British writer described it as follows:
A privateer is a private ship of war, tted out at the cost of one or more individuals on their own account, but under the sanction of a belligerent State, against the public enemy. It is the practice of most nations in time of war to issue commissions to armed vessels of this description as auxiliaries to the public force. The owners of them are licensed to attack and plunder the enemy, and their enterprise is encouraged by rewarding them with the proceeds of their captures. By the law of nations, however, they are not considered pirates.200

The practice was likely made possible due to the different rules of sea warfare, especially regarding treatment of private property, as compared to the laws of war on land.201 First, already according to the Consolato del Mare, a fourteenth-century code of maritime law, enemy goods on a friendly ship could be captured.202 That enemy goods on enemy ships may be captured goes almost without saying, and remains a part of the law of armed conicts at sea today.203 Conversely, by the mid-nineteenth century, even before the adoption of the Hague Regulations in 1899 and 1907, some argued that private property on land was usually respected
198

199

200

201

202

203

See G. Bower and H. Bellot, The Law of Capture at Sea: The Peace of Utrecht to the Declaration of Paris (1918) 3 Intl L Notes 181 for an overview of the different ordinances, treaties and agreements. There was debate as to whether a state could commission foreign vessels as its privateers: the United States had laws preventing its citizens from acting as privateers for foreign (non-enemy) states but equally preserved its right to commission foreign vessels. See T. S. Woolsey, The United States and the Declaration of Paris (1894) 3 Yale LJ 7781, 80. In Art. 1, s. 8, dening the powers of Congress, clause 11 on war powers includes the power to grant letters of marque and reprisal. The Law on Privateers and Letters of Marque (November 1853February 1854) 19 L Rev, and QJ of British and Foreign Jurisprudence 15966, 160. David Bederman, The Feigned Demise of Prize (Review Essay of Posthumous Work of Verzijl) (1995) 9 Emory Intl L Rev 3170 points out that the law of naval prize has an extraordinarily rich history, p. 33. Bower and Bellot, The Law of Capture at Sea, p. 181. One nineteenth-century writer cynically asserted that The only reason why enemys property at sea has been regarded as lawful prize, which, if it were on shore, it would be free from capture, is, the prize courts of the maritime nations laid down rules that were favorable to themselves. See Modications of the Law of Privateering (1871) 4 Albany LJ 312. See San Remo Manual on International Law Applicable to Armed Conicts at Sea (adopted June 1994), paras. 1356. For modern rules on capture of neutral goods, see para. 146 of the San Remo Manual. The important difference, however, is that nowadays the ships crew do not divide the prize among themselves or sell it off.

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in times of armed conict.204 Moreover, secondly, at the time of privateering (and even after it was abolished), prize law allowed the captors to become the lawful owners of a prize the captured ship and its cargo.205 This is another signicant difference to the laws of war on land there was nothing equivalent to the prize courts formalizing and legalizing a practice of seizing private property on land. This also provided a system of self-nancing for privateers and relieved states of the economic burden of building a large navy. Thirdly, it was lawful and common for all merchant ships to sail under arms to defend themselves.206 According to H. A. Smith, writing on the development of the laws of armed conict at sea, in practice, during the Middle Ages, sea warfare was never an activity that was wholly reserved to States.207 A mid-nineteenth century treatise on prize courts stated: non-commissioned vessels of a belligerent nation may, not only make captures in their own defence, but may, at all times, capture hostile ships and cargoes, without being deemed by the law of nations to be pirates, though they have no [legal] interest in prizes so captured.208 Indeed, commissioning privateers merely extended the lawful ability to share in the prize to private (non-state) actors. One may also surmise that it is likely that the pre-existing judicial structure to oversee the privately commissioned ships on a case-by-case basis played a role in making the practice feasible and palatable to states. One of the key objectives of naval warfare was/is to interrupt or destroy commerce by impeding shipping by the enemy;209 furthermore,
204

205

206

207

208

209

The Law on Privateers and Letters of Marque, p. 159. To be fair, this may represent a Continental European view. But see Oppenheim for a different view. In fact, the practice of allowing capturing crews to divide the ship and its cargo among themselves was retained for half a century after the abolition of privateering. H. A. Smith, Le Dveloppement moderne des lois de la guerre maritime (1938) 63 Recueil des Cours de lAcadmie de Droit International 603719, 663. Smith, Le Dveloppement moderne des lois de la guerre maritime, p. 663 (authors translation). F. T. Pratt (ed.), Notes on the Principles and Practices of Prize Courts by the Late Judge Storey (London: William Benning et al., 1854), p. 35; but see Smith, Le Dveloppement moderne des lois de la guerre maritime, pp. 6634. Smith agrees that noncommissioned ships had no right to convert a prize, but asserts that their ability to use force was limited to defensive action, although he admits that the line between defensive and offensive actions can be difcult to identify. N. Parrillo, The De-privatization of American Warfare: How the U.S. Government Used, Regulated, and Ultimately Abandoned Privateering in the Nineteenth Century (2007) 19 Yale J L and Humanities 195. The other main strategy is blockade, for which large military ships are necessary. Bower and Bellot, The Law of Capture at Sea, p. 181 suggest commerce destroying as an alternative term for privateering.

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enemy merchant ships, while not military in nature, are lawful subjects of seizure (and attack in order to seize if they do not surrender).210 The use of privateers was primarily benecial for states with smaller or weaker navies, as they could quickly commission a number of small merchant vessels to boost their naval power.211 An American urging his government to abandon privateering in 1894 explained its purposes thus: War in the sense of an exercise of force upon armed ships is not really the object of privateering. Its reason for being lies in its capacity for attacking an enemys commerce, which while primarily enriching the privateersman incidentally benets the state commissioning him.212 For the most part, privateers actively sought to avoid engagement with warships as there was little economic benet to capturing such vessels.213 Nevertheless, there are reported instances of privateers (possibly accidentally) attacking enemy warships; in such cases they were obliged to take and care for prisoners.214 What is it that makes someone or something a privateer? Commentators frequently point out the distinctions (or lament the lack thereof) between privateers and pirates;215 but they less often indicate what it is that makes a privateer remain a private, non-state actor. A brief look at British and US control over the privateers they commissioned indicates
210

211

212 213

214

215

San Remo Manual, para. 135. For a long time it was disputed whether neutral ships carrying enemy goods were also subject to boarding and capture. Parrillo, De-privatization of American Warfare, pp. 89; See also H. W. Malkin, The Inner History of the Declaration of Paris (1927) 8 British Ybk Intl L 143, 6. Woolsey, The United States and the Declaration of Paris, p. 80. C. K. Marshall, Putting Privateers in their Place: The Applicability of the Marque and Reprisal Clause to Undeclared Wars (1997) 64 U Chicago L Rev 95382, 96870. Tabarrok relates an incident in which, instead of taking the prisoners, the privateer captain instead struck a deal with the enemy captain that he would release the captain, crew and ship, but that they must head for the nearest neutral port and not take up arms again against the United States. A. Tabarrok, The Rise, Fall, and Rise Again of Privateers (2007) 11 The Independent Rev 56577, 569. In any case they had to care for the merchant crew of the captured ship as prisoners. See G. F. de Martens, An Essay on Privateers, Captures, and Particularly on Recaptures According to the Laws, Treaties and Usages of the Maritime Powers of Europe (tr. T. H. Horne) (1801), p. 2 points to the commission, the fact that privateers restrict their activity to wartime whereas pirates plunder in peace and in wartime, and that privateers must respect the limits that have been set for them only to attack enemy ships; if they transgress these limits, they become pirates, according to Martens. See Bower and Bellot, The Law of Capture at Sea, p. 182 for complaints about the lack of such a distinction except in legal terms. See also the comments made by Benjamin Franklin in 1783 to the British Commissioner during peace negotiations cited in The Law on Privateers, pp. 1656. Tabarrok, Privateers, p. 566.

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that some forms of state control over them existed and were exercised. First, commissions could only be issued when Parliament or Congress authorized their executives (either the Admiralty or others) to issue letters of marque once they had already declared war.216 This preserved the decision as to whether to engage in armed conict to state authorities.217 In order to receive a commission, privateers for the Crown had to give security to the Admiralty to make compensation for any violation of the treaties subsisting with those powers towards whom the nation is at peace and to promise not to become smugglers.218 There was, thus, an acknowledgement that states were putting private actors in the position of being able to violate the international obligations of the commissioning state; the primary fear was that the shipping rights of neutrals would be violated. Taking such bonds or securities against obligations, including the obligation to observe generally the law of nations, was reportedly a usual practice among states.219 The demand of a bond presumes that a state will be able to monitor privateers and penalize them if they do not meet the obligations set for them. Secondly, like state navies, in order to gain lawful possession of captured goods, all privateers had to appear before a prize court to have the cargo condemned, which then allowed them to sell it lawfully.220 According to regulations adopted by the US Congress on the conduct of privateers during the War of 1812, privateers were to head for the nearest friendly port where a prize court would hear evidence on ownership of the captured vessel and cargo.221 If it was indeed enemy property, the privateer could divide it among his crew and sell it lawfully. If it was not, the court could order restitution, etc. Moreover, prize courts had jurisdiction to hear personal torts and could apply the rule of respondeat superior and decree damages against the owners of the offending privateer and order compensation to a crew that had been grossly
216 217

218 219

220 221

The Law on Privateers and Letters of Marque, p. 161. Although a degree of reprisals at any time was permitted see Smith, Le Dveloppement moderne des lois de la guerre maritime, p. 663. The Law on Privateers and Letters of Marque, p. 161. Ibid., p. 160. Tabarrok, Privateers, p. 570, gives specics on the amount of the bond for the United States. The US Congress admonition to privateers in the War of 1812, while not in the form of a security, was that Towards the enemy vessels and their crews, you are to proceed, in exercising the rights of war with all the justice and humanity which characterizes the nation of which you are members. Cited in Tabarrok, ibid., p. 569. Parrillo, De-privatization of American Warfare, p. 18. Tabarrok, Privateers, p. 568. He cites An Act Concerning Letters of Marque, Prizes and Prize Goods (1812) 2 Stat 759.

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mistreated.222 Respect of the terms of a caution or bond could also be reviewed by a prize court.223 The commission of a privateer was recognized in prize courts throughout the world and thus protected privateers from the fate that befell pirates,224 which may have facilitated judicial review of privateers actions. Judicial review was not limited to the prize courts of the commissioning state, even though states could instruct privateers to prefer certain jurisdictions (e.g. in the case of England, its own or its colonial courts). Even though the prize courts of a commissioning state would seem to have an interest in nding in favour of captures by their own privateers, these courts seem to have taken their role seriously and adjudicated fairly.225 However, it is widely recognized that not all privateers would always take their prize to a prize court to gain judicial approval before disposing of it, and that the obvious difculties of monitoring conduct on the high seas (even more so in that era) meant that depradations could go unnoticed and therefore unchecked.226 Thirdly, the commissions (or letters of marque) could be revoked by the Admiralty or vacated by the misconduct of the parties, as, for example, by their cruelty.227 There are accounts of revocations of commissions and proceedings against both British- and Americancommissioned privateers.228 The vast majority of writers conclude that all of these controls amounted to little in the context of armed vessels on the high seas.229 Many felt that there was a ne, sometimes indistinguishable, line between
222 223 225

226

227 228

229

Pratt (ed.), Notes on the Principles and Practices of Prize Courts, p. 32. 224 Ibid., pp. 3744. Tabarrok, Privateers, p. 566. Marshall, Putting Privateers in their place, p. 975, describing US prize courts during the War of Independence. Parrillo, De-privatization of American Warfare, pp. 4950. See also Smith, Le Dveloppement moderne des lois de la guerre maritime, pp. 6634. The Law on Privateers and Letters of Marque, pp. 1612. Ibid., p. 162; Pratt (ed.), Notes on the Principles and Practices of Prize Courts, p. 37, citing the case The Marianne, 5 Rob 9; Parrillo, De-privatization of American Warfare, p. 49; Tabarrok, Privateers also lists situations in which prize courts did not allow a privateer to keep the prize even though it was enemy property on the grounds that the captain of the enemy ship had not had time reasonably to be informed of the fact that an armed conict had begun. One writer insists that the economic incentives provided to privateers for handing over prisoners alive (in the form of ransoms etc.) led to great respect of the laws of war on their part (see Tabarrok, Privateers section entitled Evaluation). Others did not paint such a rosy picture: Queen Victoria said, Privateering is a kind of piracy which disgraces our Civilisation, its abolition throughout the world would be a great step in advance.

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privateers and pirates. The fact that the commissions were issued by the Admiralty seems to have been construed by one author as meaning that privateers naviguaient sous les ordres de la marine militaire.230 While such an interpretation may be technically correct in that they received documents and general instructions from the Admiralty, it is clear that privateers were not actually incorporated into state navies and that any orders they received were general and vague.231 However, this does not entirely settle the matter. During the US Civil War, England rejected US (i.e. Northern) demands that neutral states treat the Southern privateers as pirates on the grounds that the so-called Confederate States, being acknowledged as a belligerent, might by the law of nations arm privateers, and that their privateers must be regarded as the armed vessels of a belligerent.232 This suggests that the commissions granted to private ships did confer some kind of quasi state-agent status on them vis--vis neutral states. Nevertheless, existing controls certainly cannot be construed as comprehensive state control over privateers. While accounts suggest they were under instructions to obey the laws of war and neutrality, they were not incorporated as members or elements of the state navies. In 1856, the practice of privateering was prohibited by the rst article of the Declaration of Paris, signed by most European powers.233 For reasons not relevant to this study, the United States did not become a party to the treaty.234 One writer asserts that the turn away from privateers was prompted by nineteenth-century thinking that the practice violated the principle that war should be exclusively a State affair.235
(Letter to Lord Clarendon, 6 April 1856, cited in Malkin, The Inner History of the Declaration of Paris at p. 30. Smith, Le Dveloppement moderne des lois de la guerre maritime, p. 663. E.g. the area in which they could operate could be limited, in addition to the general admonition to obey the laws of nations. Marshall, Putting Privateers in their Place, p. 975. Malkin, The Inner History of the Declaration of Paris, p. 43, emphasis added. This rejection may have arisen out of sympathy with a particular party to the conict, but it is nevertheless signicant that it could be couched in terms of an apparently existing legal obligation. Art. 1 of Le Trait de Paris du 30 Mars 1856 states, La Course est et demeure abolie. Spain did not sign. See Parrillo, De-privatization of American Warfare for an extensive discussion of American reticence. For relatively contemporary accounts, see Woolsey, The United States and the Declaration of Paris and W. Winthrop, The United States and the Declaration of Paris (1894) 3 Yale LJ 11618. See also Malkin, The Inner History of the Declaration of Paris, who reproduces statements by President Franklin Pierce. Smith, Le Dveloppement moderne des lois de la guerre maritime, p. 663 (our translation).

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While that may indeed have played a role, a history of the negotiation of the Declaration also suggests that states were motivated by more prosaic concerns in particular the fact that the involvement of privateers intensied the economic impact of the conict rather than worries about abstract Weberian ideals of the state and state power.236 Another publicist writing in 1908 asserted that The fundamental objection to the used of converted merchant vessels [i.e. privateers] has previously been the lack of government control and responsibility.237 An additional few elements help to discern what made a privateer a privateer. Some sixty years after the abolition of privateering by the Declaration of Paris, the seventh of the Hague Conventions of 1907 set out strict rules on the conversion of merchant ships into war ships. Namely, merchant ships that were converted into warships during belligerent times had to be placed under the direct authority, immediate control, and responsibility of the power whose ag it ies in order to have the rights and duties of a warship.238 In addition, the commander must be in the service of the state and duly commissioned by the competent authorities and the crew must be subject to military discipline.239 The ship must observe in its operations the laws and customs of war.240 The terms of this convention are the best indication that what made a privateer a privateer was precisely its lack of incorporation into a states naval forces. Indeed, its negotiation and adoption was prompted by controversy over whether Germanys practice of converting its merchant ships into warships and incorporating them into its navy constituted a violation of the Declaration of Paris.241 The adoption of Convention VII afrms that such practice does not constitute privateering. Janice Thomson lumps privateers in with mercenaries and treats them as such in her discussion of the decline of mercenarism more broadly.242
236

237 238

239 241

242

See Malkin, The Inner History of the Declaration of Paris, which reproduces the diplomatic correspondence of the time. G. Grafton Wilson, Conversion of Merchant Ships into War Ships (1908) 2 AJIL 271, 272. Convention relative la Transformation des Navires de Commerce en Btiments de Guerre, Art. 1. During the Hague conference of 19223 the prohibition of use of privateers in aerial warfare was discussed. 240 Convention relative la Transformation, Arts. 3 and 4. Ibid., Art. 5. Deuxime Confrence internationale de la Paix, La Haye 15 juin18 octobre 1907, Actes et Documents, La Haye, 1907, vol. 1, pp. 6479, www.icrc.org/dih.nsf/INTRO/210? OpenDocument. See also A. Roberts and R. Guelff (eds.), Documents on the Laws of War, 3rd edn (Oxford University Press, 2000), pp. 95101. J. E. Thomson, State Practices, International Norms and the Decline of Mercenarism (1990) 34 Intl Studies Q 2347, 378. See also discussion below on mercenarism more broadly.

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However, it is possible to draw a line between two kinds of privateering commissions for and by foreign states, and those granted by home states. It is indeed true that foreign commissions declined (alongside a rise in the concept of neutrality) long before national commissions did. As such, it is helpful to recognize that nationality of the commissions and the private nature of the commissions are two distinct elements affecting states view of the legality of the practice, and that privateering remained privateering even when it was for a home state.243 What is the relationship between the prohibition of privateering and the use of PMSCs, if any? It speaks to the authority of a state to delegate or commission private actors to carry out limited acts of war and the waning acceptance of that practice by the international community.244 Although the reasons for the decline in the practice may be diverse including economic, strategic and even moral concerns, the fact that the commissioning of private actors to carry out acts of war at sea became illegal is incontrovertible.245 Several contemporary authors have argued that the old system of regulating privateers should be revived as a sufcient means to regulate private military and security companies.246 These authors seem to have missed the rejection of privateers in 1907 and the prohibition on states from having resort to such actors without incorporating them directly into their formal military structures when they are being licensed to commit belligerent acts. That fact suggests that states believed that regulation outside of formal state structures is insufcient to bring the practice into compliance with international norms. While the use of mercenaries by a state is more commonly invoked in discussions on the rules on private military and security companies under international law today than the obsolete practice of privateering, it is submitted that the norms around privateering help to elucidate principles regarding the use of private actors by states in armed conicts.

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As we will see below, nationality is an important component of the legal denition of mercenaries. There are many more parallels, including concerns that individual seamen would prefer to work for privateers than for the state marines due to higher compensation and a higher share in the prize. For an economic explanation of its decline in relation to Britain, see H. Hillmann and C. Gathmann, Overseas Trade and the Decline of Privateering (2008), http://papers. ssrn.com/sol3/papers.cfm?abstract_id=1112111. See Parrillo, De-privatization of American Warfare for an explanation of the strategic change in US military policy. See e.g. W. Casto, Regulating the New Privateers of the Twenty-rst Century (2006) 37 Rutgers LJ 671702, 684.

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Finally, in addition to playing a role as guiding principles for land warfare forces, the law on privateering continues to form part of the law of armed conict at sea. Because the objective of naval warfare is broader than that of land warfare, it is essential to dene carefully which ships are warships both for the purposes of the law of armed conict and more broadly for the law of the high seas. As such, the denition of a warship, which is also entrenched in the 1982 UN Convention on the Law of the Sea and the San Remo Manual, reects the 1907 Hague Convention.247 In order to be a warship, a vessel must be under the command of an ofcer commissioned by the government.248 PMSCs therefore cannot, without being under the command of a commissioned ofcer, operate warships.249 Recently, PMSCs have been seeking contracts in certain waters where merchant ships are known to come under attack by pirates. As traditional pirates are not armed groups for the purposes of IHL such that violence committed by them amounts to an armed conict, the use of PMSCs to protect against pirates would not necessarily contravene the law. States and international organizations have nevertheless been using military measures against piracy.250 If, however, the pirates are in fact related to armed groups involved in an armed conict, then the use of PMSC ships raises a host of additional tricky legal questions for instance, do the laws against privateering apply when such private armed ships are used against the marine forces of non-state armed groups? An answer based upon the text and object of the treaties from the nineteenth and early twentieth century is no, but the contemporary general tendency to apply IHL of international armed conicts by analogy or via alleged customary rules to non-international armed conicts251 could point in the opposite direction.
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Art. 29, UN Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3; para. 13(g) San Remo Manual. W. Heintschel von Heinegg, The Law of Armed Conict at Sea in D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conicts (Oxford University Press, 1995), pp. 4069. See also Ch. 2, section E 2 below dealing with neutrality. UNSC Res. 1816, 2 June 2008, UN Doc. S/RES/1816 (2008); UNSC Res. 1838, 7 October 2008, UN Doc. S/RES/1838 (2008); EU Council Joint Action 2008/851/CFSP of 10 November 2008 on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast [2008] OJ 301/33. See also on this issue, N. Ronzitti, The Use of Private Contractors in the Fight against Piracy: Policy Options in F. Francioni and N. Ronzitti (eds.), War by Contract: Human Rights, Humanitarian Law, and Private Contractors (Oxford University Press, 2011), pp. 3751. Prosecutor v. Tadi (Appeals Chamber) IT-941 (2 October 1995) (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), paras. 96127.

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5 The prohibition of mercenarism


The ability of a state to use mercenaries lawfully in terms of the jus ad bellum has changed signicantly since the time of pas dargent, pas de suisses, when states or princes freely leased armed forces from other states and hired out their own.252 It is not necessary here to discuss the historical use of mercenaries by states in detail as it is fairly familiar.253 Instead, this section will focus on the scope and content of the relatively recent rules prohibiting states from using mercenaries and the relationship of that prohibition to the use of PMSCs. Many discussions of mercenarism oscillate between the prohibition of individuals to become mercenaries and the duties of a state in that regard; however, few treat exclusively the capacity of states to use mercenary forces.254 This section will concentrate only on the latter.

5.1 Treaty law There are two international conventions prohibiting their state parties from using mercenaries in general and also for specic purposes. The universal convention is the International Convention against the Recruitment, Use, Financing and Training of Mercenaries (the UN Convention), which was adopted in 1989 by a resolution of the UN General Assembly. Although this convention has not been widely ratied, it has been in force since 2001 and the list of states party to it is slowly growing.255 There is also a regional convention, which is the Convention of the Organization of African Unity (OAU) for the Elimination of Mercenarism in Africa, which has been in force since 1985 and to which twenty-nine African states are parties.
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In the early poor and over-populated Swiss cantons, often the best source of employment was to be a mercenary. During the Battle of Pavia in 1525, the Swiss mercenaries in the services of Franois I went on strike because they had not been paid. The phrase no money, no Swiss encapsulates the prevailing ethos and reality of the era. For inter-state leasing of regiments, see Thomson, State Practices, p. 24. Mercenaries have been used since the rst recorded wars in 2094 bc. E. David, Mercenaires et volontaires internationaux en droit des gens (Brussels: Bruylant, 1978); A. Mockler, The Mercenaries (New York: Macmillan, 1969); S. Percy, Mercenaries (Oxford University Press, 2008); J. E. Thomson, Mercenaries, Pirates, and Sovereigns: State-building and Extraterritorial Violence in Early Modern Europe (Princeton University Press, 1994). One exception is H. C. Burmester, The Recruitment and Use of Mercenaries in Armed Conicts (1978) 72 AJIL 3756 who does treat the latter question more fully, though not exclusively. Most recently, the Syrian Arab Republic and Honduras became parties in 2008, Cuba in 2007, the Republic of Moldova in 2006 and New Zealand in 2004. There are presently thirty-two states party to the convention. 2163 U.N.T.S. 75.

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Article 5(1) of the UN Convention stipulates that States Parties shall not recruit, use, nance or train mercenaries and shall prohibit such activities .256 We are particularly concerned here with the prohibition of the recruitment and use of mercenaries by states, although all aspects of the prohibition are relevant. For its part, Article 2 of the AU Convention makes it a crime for a state to shelter, organize, nance etc. or employ bands of mercenaries with the aim of opposing by armed violence a process of self-determination stability or the territorial integrity of another State.257 This means that a state party cannot use mercenaries in conicts on its own territory if the conict involves a self-determination movement; however, it is not a violation of the convention for legitimate governments to use mercenaries in defence of the state from illegitimate dissident groups.258 Furthermore, under the AU Convention, it is a crime for a state or a representative of a state to allow such activities in areas under their jurisdiction or to facilitate transit or travel of mercenaries.259 According to the convention, any of these acts may amount to a crime against peace and security in Africa and shall be punished as such.260 This criminal responsibility of states may be invoked through normal channels of state responsibility i.e. by other states.261 Both conventions also establish obligations for states parties to take action to prevent mercenary-related activity on their territory, the AU Convention being more detailed in this regard.262 Given that private military and security companies are often used by third states

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Art. 1 denes mercenaries and adopts a similar denition as that set out in Art. 47(2) AP II. The main differences are that the UN Convention denition does not require that a person actually take part in hostilities in order to be classied as a mercenary and the wording regarding pay is more exigent. Paragraph 2 of that Article prohibits their recruitment, use etc. for the specic purpose of opposing the exercise of the right to self-determination and furthermore obliges states parties to take appropriate measures to prevent their recruitment, use etc. for that purpose. OAU Convention, Art. 2. OAU Doc. CM/817 (XXIX), Annex II, Rev. 3. See L. Gaultier et al., The Mercenary Issue at the UN Commission on Human Rights: The Need for a New Approach International Alert (undated) 32. This interpretation begs the question what is a legitimate government. 260 OAU Convention, Art. 2(c). Ibid., Art. 3. See Art. 5(2) of the OAU Convention, which stipulates: When a State is accused of acts or omissions declared to be criminal, any other party to the present Convention may invoke the provisions of this Convention in its relations with the offending State and before any competent OAU or International Organization tribunal or body. UN Convention, Arts. 5(2), 6; OAU Convention, Art. 6.

262

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participating in non-international armed conicts, it is important to note that the AU and UN Conventions apply both to situations of international and non-international armed conict.263 For the sake of completeness, we note that the Geneva Conventions and their Additional Protocols (which in any case are part of the jus in bello and not the jus ad bellum) do not prohibit per se the use of mercenaries by states. The UN and AU Conventions dene who is a mercenary and largely adopt the denition of Article 47(2) AP I.264 An essential aspect of the denition of mercenaries when it comes to their use or employment by states is that under any convention or by any legal denition, a person is not a mercenary if he is incorporated into a states armed forces. The conventions do not, therefore, prohibit a state from hiring foreigners and paying them well so long as it incorporates them into its own armed forces. This fact is almost always treated as a loophole in the repression of mercenarism, and it is often lamented by commentators that states can easily escape their obligations regarding mercenaries by simply incorporating them into their own armed forces;265 however, rather than seeing it as a loophole, we would do well to recognize it in fact as an important part of the norm itself.266
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This is a distinction from the mercenary provision in the Additional Protocol to the Geneva Conventions, as that Article applies only to situations of international armed conict (or self-determination movements). Art. 47(2) AP I states: A mercenary is any person who: (a) is specially recruited locally or abroad in order to ght in an armed conict; (b) does, in fact, take a direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) is neither a national of a Party to the conict nor a resident of a territory controlled by a Party to the conict; (e) is not a member of the armed forces of a Party to the conict; ( f ) has not been sent by a State which is not a Party to the conict on ofcial duty as a member of its armed forces. Protocol [I] Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conicts, 8 June 1977 (entered into force 7 December 1978) 1125 UNTS 3. The OAU Convention reproduces Art. 47(2) AP I verbatim, while the UN Convention slightly changed the wording regarding compensation and dropped the requirement of actually participating in hostilities for the denition of mercenaries, but retained it as a component of the offence. See Art. 3 UN Convention. van Deventer notes that some states lamented the same during the negotiation of Art. 47. See H. W. van Deventer, Mercenaries at Geneva (1976) 70 AJIL 811, 813. Percy argues that through Art. 47(2)(e) AP I, States were trying to exclude actors they did not perceive to be mercenaries from the denition: S. Percy Mercenaries: Strong Norm, Weak Law (2007) 61 Intl Organization 367, 377.

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Many states have consistently sought to retain their right to augment their armed forces via a number of means; incorporating foreigners or even foreign-formed units is one means by which they have consistently done so.267 This may mean that for many, the law does not reect common notions of mercenarism in that it does not impede states from hiring soldiers of fortune.268 While this conclusion may frustrate some, there are plenty of good legal reasons why it is logical that incorporation into a states armed forces takes a person out of the category of mercenary. Where foreign ghters are incorporated into state forces through normal, ofcial channels, there are clear lines of state responsibility and the application of IHL is clear. Furthermore, the exclusion of ghters incorporated into state armed forces from the denition of a mercenary is consistent with the regulation of privateers at the beginning of the twentieth century: the conversion of merchant ships is not privateering (which some describe as a form of mercenarism) as long as the ships are incorporated into the states own navy.269 One may question whether incorporation for a specic conict would satisfy a good-faith interpretation of the conventions,270 but one cannot make an a priori determination that such incorporation would violate good faith. In any case, this loophole will rarely be an issue in the case of private military and security companies because, by and large, in the contemporary context, states expressly avoid incorporating PMSCs into their national forces.271
267

268

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271

The most commonly cited examples are the UK ghting to exclude the Gurkhas and France wishing to exclude its Foreign Legion from falling foul of the mercenary denition. Percy, Strong Norm, Weak Law, p. 378. Although the use of foreign forces declined dramatically over the past two centuries, the fact that states have continued to assert a right to engage such foreigners is not in doubt. See J. Thomson for a comprehensive discussion of the decline in use of foreign forces. There is also a developed developing world split on this question, as African states tend to oppose the right while Old World states assert it: Thomson, State Practices. See, for an alternative perspective, Percy, Strong Norm, Weak Law. Percy argues that, counterintuitively, it is precisely the fact that states take mercenaries so seriously that impedes them from developing implementable norms. Since privateering for foreign powers had diminished before privateering for ones own state, the foreigner element was also removed from the equation in that case. Burmester points out that recruitment for a specic conict reeks of outside intervention: Recruitment and Use of Mercenaries, 38. See L. Cameron, New Standards for and by Private Military Companies? in A. Peters et al. (eds.), Non-state Actors as Standard Setters (Cambridge University Press, 2009), pp. 11345. However, it should be recalled that in some circumstances, private military companies may insist on incorporation as a means of avoiding mercenary accusations, as occurred with EO in Sierra Leone: Percy, Security Council and the Use of Private Force, p. 636, n. 50.

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In order to evaluate whether the treaty-based prohibition on mercenarism affects states capacity to use PMSCs lawfully (especially since states do not make use of the loophole), it is imperative to enquire whether PMSCs are mercenaries under the denitions in the mercenary conventions.272 Drawing on examples of PMSCs operating in Iraq in 20034, it can be concluded that some individuals working for such companies may be caught by the mercenary conventions. Consider, for example, the hypothetical (but entirely possible) case of a South African former special-forces ghter who may have been hired to provide close protection services for the leaders of the Coalition Provisional Authority in Iraq. Proceeding through the ve parts of the denition, we must enquire, rst, whether the fact of being hired as a bodyguard would constitute recruitment in order to ght. It is important to recall here that the phrase to ght is not synonymous with an offensive attack; therefore, persons hired to defend a (military) person and who will be likely to or do engage in defensive combat can fall under Article 1(a) of the UN Mercenary Convention.273 However, it is understood that to meet this criterion the individual should be recruited specically to ght in the particular conict in question, not as a general employee. As for the second criterion, individuals acting as bodyguards of the US occupation commanders earned up to US$2,000 per day, considerably more than a US private earns in a month. In the case of South African ghters, they are not nationals of a party to the conict (1(c)). As for being members of the armed forces of a party to the conict, sufce it to say briey at this point that employees of these companies are not members of the armed forces; this criterion will be discussed in more detail elsewhere.274 Finally, South Africa did not send its soldiers (or exsoldiers) to Iraq on ofcial duty. There were notably also some 1,500 Fijian soldiers who joined PMSCs in Iraq; however, even though they
272

273

274

While the UN Convention ostensibly adds a second category of mercenaries aimed at mercenary engagement in armed activities whose purpose is Overthrowing a Government or otherwise undermining the constitutional order of a State; or Undermining the territorial integrity of a State, since the rest of that denition reproduces the same cumulative criteria as the rst category, its inclusion represents no real expansion of the category. Note that unlike Art. 47(2) AP I, the Mercenary Conventions do not require that the individual actually take part in hostilities. Some PMSCs have engaged in hostilities in Iraq. See L. Cameron, Private Military Companies: Their Status under International Humanitarian Law and its Impact on their Regulation (2006) 88 Intl Rev Red Cross 57398, 5812. See Ch. 4, section B below.

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may be members of the Fijian armed forces, they were not sent on ofcial duty by Fiji, such that they could still be considered mercenaries if they met the other criteria (1(e)). It is thus not impossible that some individuals working for PMSCs in Iraq could meet the legal denition of a mercenary. It is worth recalling that the mercenary conventions apply to both international and non-international armed conicts (unlike Article 47(2) AP I, which only applies in international armed conicts).275 No sweeping conclusion can be drawn that all PMSC employees are or are not mercenaries under the mercenary conventions since the denitions require an individual determination on a case-bycase basis.276 That being said, the short answer is that due to the narrowness of the denition of who is a mercenary, it is unlikely that many PMSC employees will be caught by it.277 For this reason, coupled with the fact that none of the principal users of PMSCs are parties to the conventions, the treaty law prohibition on the use of mercenaries will rarely be an impediment to the use of private military and security companies.278
275

276

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278

In 2008, 40 per cent of the contractors in Iraq were neither US nor Iraqi nationals; of these, a signicant proportion of contractors conducting armed security work are thirdcountry nationals. See Congress of the United States Congressional Budget Ofce, Contractors Support of U.S. Operations in Iraq (August 2008), pp. 1 and 10. The former UN Special Rapporteur on the Right of Peoples to Self-determination consistently argued that private military companies are mercenaries without distinguishing among individuals. See e.g. Enrique Ballasteros, Report of the Special Rapporteur, 13 January 1999, UN Doc. E/CN.4/1999/11, para. 45. This approach has evolved and softened with the new Working Group. For more extensive discussions of this issue, see Z. Salzman, Private Military Contractors and the Taint of a Mercenary Reputation (2008) 40 NYU J Intl L & Policy 85392. See also Cameron, Private Military Companies, esp. pp. 57882. In one of its most recent reports, the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of People to Selfdetermination conrms this conclusion: UN Doc. A/63/325, 25 August 2008, para. 46. Note, however, that US-registered PMSCs are increasingly hiring Latin Americans to work in Iraq. See K. Mani, Latin Americas Hidden War in Iraq, Foreign Policy, 11 October 2007. Recently, it was announced that a new company (Reex Responses Management Consultancy, or R2), owned by former Blackwater owner Erik Prince, was contracted by the government of the United Arab Emirates to create a Security Support Group. The company is allegedly staffed by Colombians and the terms of the contract include leading operations. However, the contract also species that the unit will be staffed by expatriate personnel trained and mentored by expatriate Contractors and will be directly subordinate to the Military Intelligence (MI) section of the Client. See Contract no. 346/4 for the provision of services to the armed forces units, Addendum G, p. 30.

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5.2 Customary law? Since the treaty norm is scarcely accepted and restricted to the narrow denition of mercenaries and only prohibits states from using that category of persons, and since it is both feasible and likely that the vast majority of private military and security companies can avoid themselves or their employees falling under the mercenary denition, it is necessary to consider whether there is a separate customary prohibition on the use of mercenaries by states.279 The former UN Special Rapporteur dealing with mercenaries, E. Ballasteros, asserted that a case can be made for the existence of customary international law that condemns and prohibits mercenary activities based on the nature of the acts.280 He based his assertion on:
the fact that the General Assembly, the Security Council, the Economic and Social Council and the Commission on Human Rights have repeatedly condemned mercenary activities and since, in addition, Member States have condemned such activities and some countries have national laws making the use of mercenaries a crime.281

This assertion raises at least two questions: rst, does the evidence truly support the contention that a customary norm exists, and, secondly, if there is such a norm, what are its contents and how do they affect the use of PMSCs? The usual means of discerning whether a norm constitutes customary international law is by identifying an extensive and virtually uniform state practice anchored in a belief that a legal obligation compels that practice.282 When it comes to identifying customary law through an analysis of resolutions of the UN General Assembly, it is important to recall that while resolutions of the United Nations [General Assembly]
279

280

281 282

We note that the ICRCs study on customary IHL found that the rule on mercenaries in IHL is customary, but we reiterate that that norm must be distinguished from the existence of a rule prohibiting states from using them. See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (Cambridge University Press and ICRC, 2005), p. 391 (Rule 108). E. Ballasteros, Report of the Special Rapporteur, 13 January 1999, UN Doc. E/CN.4/ 1999/11, para. 44. He seemed particularly concerned that states would confer nationality on foreigners to have them avoid being mercenaries, or take advantage of dual nationals having no real connection to the hiring state to escape from being considered mercenaries: paras. 434. Ibid., para. 44. See North Sea Continental Shelf cases (Germany v. Denmark and Germany v. Netherlands) [1969] ICJ Rep 3, paras. 74 and 77.

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have a certain legal value, this legal value differs considerably, depending on the type of resolution and the conditions attached to its adoption and its provisions.283 More specically, the legal value of General Assembly resolutions can be determined on the basis of circumstances under which they were adopted and by analysis of the principles which they state.284 The rst consideration includes an assessment of whether the resolution was supported by a majority of Member States representing all of the various groups and the second demands an effort to distinguish between those provisions [within the resolution] stating the existence of a right on which the generality of the States has expressed agreement and those provisions introducing new principles which were rejected by certain representative groups of States.285 Applying this framework for analysis to General Assembly resolutions on mercenaries, it becomes immediately apparent that the resolutions are not supported by a majority of member states representing all of the various groups. Approximately twenty Western states consistently vote against all General Assembly resolutions condemning mercenaries; an additional twenty to forty states typically abstain.286 Major military powers have a tendency to vote against sweeping condemnatory resolutions,287 but smaller, less mighty states often vote against anti-mercenary resolutions as well. The refusal of Western states to support resolutions regarding mercenaries in the General Assembly may in part be due to the fact that the question of mercenaries is too closely linked to the period of decolonisation and the situation of peoples under foreign occupation [T]he view of western

283 284 286

287

Texaco-Calasiatic (Merits/Award) (1979) 53 ILR 389, 420, at pp. 483 ff., para. 86. 285 Ibid. Ibid., para. 87. The states regularly voting against anti-mercenary resolutions include: US, UK, Canada, France, Germany, Ireland, Israel, Italy, Hungary, Japan, Netherlands, Norway, Belgium, Monaco and Luxembourg, but also often the Balkan States and the Baltic States. It should be noted, however, that resolutions including a reference condemning the use of mercenaries may also contain clauses of condemnation or calls for action regarding specic national and international situations that may inuence states voting patterns regardless of their views on mercenaries. See e.g. the voting records of the UN General Assembly for UNGA Res. A/47/84, 16 December 1992; UNGA Res. A/48/94, 20 December 1993; UNGA Res. A/48/92, 20 December 1993; UNGA Res. A/48/150, 23 December 1994; UNGA Res. A/50/138, 21 December 1995; UNGA Res. A/51/83, 12 December 1996; UNGA Res. A/52/ 112, 12 December 1997; UNGA Res. A/53/135, 9 December 1998; UNGA Res. A/54/151, 17 December 1999; UNGA Res. A/55/86, 4 December 2000; UNGA Res. A/56/232, 24 December 2001; UNGA Res. A/57/196, 18 December 2002. S. Franklin, South African and International Attempts to Regulates Mercenaries and Private Military Companies (2008) 17 Transnl L and Contemporary Problems 239, 260.

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delegations is that the question of mercenaries should be considered by the Sixth Committee and not by the Human Rights Council.288 However, this explanation is perhaps too limited, in that it suggests an objection based purely on procedure or forum.289 As for the second part of the test, analysing the text of the resolutions to ferret out the existence of a legal obligation related to mercenaries on which the generality of the States has expressed agreement, given the consistent voting pattern of a block of representative states, is an extremely difcult, if not fruitless, enterprise. Touting the mere existence of General Assembly resolutions as evidence of or as a source of customary international law, as Ballasteros purports to do, without closer analysis, should be treated with scepticism. Apart from voting on General Assembly resolutions, the practice of states with regard to mercenaries has been neither universal nor consistent.290 An evaluation of existing evidence in support of a customary norm prohibiting the use of mercenaries suggests that in so far as such a separate customary norm can be said to exist, it may differ from the treaty norm in several ways. First, the sources are inconclusive or silent as to a customary denition of mercenaries, and therefore the norm may be based on a conception of mercenary that is not restricted to the narrow denition in Article 47(2) AP I that underlies the conventions discussed above.291 On the one hand, there is an intuitive denition, which would simply encompass foreign ghters who ght for personal enrichment: this is the norm based on motivation. On the other hand, there is the notion of private,
288

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J. Gomez del Prado, Private Military and Security Companies and the UN Working Group on the Use of Mercenaries (2008) 13 J Conict and Security L 429, 432. The Sixth Committee is the Legal Affairs Committee. Gomez del Prado is presently the chair of the Working Group on Mercenaries. In particular, the comment was given as a reason why the Working Groups recent mandate has not been supported by Western states, but procedural misgivings alone would not seem to account for a sudden jump in votes against see UNGA Res. 61/151, 14 February 2007, UN Doc. A/RES/61/151 and related voting record (forty-eight states voted against). N. Canny rejects this possibility on the grounds that state practice has not been universal and consistent: Canny, A Mercenary World: A Legal Analysis of the International Problem of Mercenarism (2003) 3 U College Dublin L Rev 3356, 33, n. 3. Even the Working Group on Mercenaries point out that the Declaration on Friendly Relations, while making it a duty of the State not to use mercenaries, irregular forces or armed bands against the territorial integrity or independence of another State, it does not, even for that purpose, dene armed bands or mercenaries. See para. 47 of UN Doc. A/63/325 (2008). While Art. 47(2) AP I may be customary law for the purposes of the jus in bello (as found by the ICRCs customary law study, Rule 108), it does not necessarily reect the denition that would apply for the purposes of jus ad bellum.

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non-governmental intervention in the affairs of a state as the source of the problem with mercenaries, which may lead to a different denition.292 Discerning the precise elements that could comprise an alternative denition that is consistently accepted by states across the globe is an exercise doomed to fail.293 For instance, recent General Assembly resolutions relating to the suppression of mercenary activity do not draw a bright line between private military and security companies and mercenaries under the UN Convention.294 Indeed, one scholar asserts that the General Assembly approach belies a belief in that private uses of force are wrong by nature,295 which implies a very broad denition of what constitutes mercenary activity. States continued and expanding use of PMSCs, however, runs counter to a broadening of the denition to all private forces. In yet another permutation of the denition, the subtext for many authors is that mercenaries are only mercenaries if they are working for the bad guys or for illegitimate governments; if they are working for good governments, they are something else.296 However, there is no consensus on the role of the legitimacy of the employer of the private forces, or at the least, the legitimacy of the employers goals in the customary denition of who is a mercenary. It is also unsettled whether, in a customary denition, incorporation into a states armed forces is relevant: some imply that it is,297 but others argue that the lack of incorporation is the essence of what bothers states about
292 293

294

See Burmester, Recruitment and Use of Mercenaries, p. 38. The disagreement between negotiating states regarding whether incorporation into a states armed forces relieves a ghter from mercenary status is a case in point. See e.g. UNGA A/RES/63/164, adopted 18 December 2008, UN Doc. dated 13 February 2009. This suspicion is most evident in para. 17 of the resolution: 17. Requests the Working Group to continue to take into account, in the discharge of its mandate, the fact that mercenary activities continue to occur in many parts of the world and are taking on new forms, manifestations and modalities, and in this regard requests its members to continue to pay particular attention to the impact of the activities of private companies offering military assistance, consultancy and security services on the international market . Percy, Security Council and the Use of Private Force, p. 635. See Salzmans discussion of this, Private Military Contractors, pp. 8889. See also F. Parodi, Les Socits militaires et de scurit prives en droit international et droit compar, PhD Thesis, Universit Paris I Panthon-Sorbonne (2009), pp. 14752. E.g. Percy, a leading authority on mercenaries and international lawyer, denes a mercenary as an individual soldier who ghts for a state other than his own, or for a non-state entity to which he has no direct tie, in exchange for nancial gain: Percy, Security Council and the Use of Private Force, p. 626.

295 296

297

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mercenaries.298 The lack of a universally agreed denition of what constitutes mercenarism beyond its treaty law meaning is strong evidence of the absence of a general customary rule prohibiting their use. Secondly, while the denition of who is a mercenary may hypothetically be broader under customary law than under treaty law, the restriction in their use is more limited under any conceivable customary norm. By and large, the restriction amounts to no more than to provide that a state cannot use mercenaries to do things that its own forces are prohibited from doing under general international law. As Ballasteros indeed observes, the UN General Assembly has adopted many resolutions criticizing or condemning the use of mercenaries.299 First of all, however, the comments above about the need for scepticism with this source apply here as well. In addition, many of these resolutions merely relate to and encourage the work of the committee drafting the UN Convention or its implementation.300 Those resolutions must therefore be excluded from consideration, as the norm they relate to must be considered to be reected in the convention discussed above. The remaining resolutions are narrower in scope and attach condemnation of the use of mercenaries to the protection of other rights or respect of other obligations. That is to say, any customary prohibition on the use of mercenaries as evidenced by General Assembly Resolutions and older treaties is not a stand-alone norm but only exists in relation to the prohibition of the use of force,301 the respect for the principle of neutrality or non-interference,302 and the respect for the right to exercise self-determination.303
298

299 300

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302

303

See Canny, A Mercenary World, pp. 47 ff. Burmester, Recruitment and Use of Mercenaries, pp. 389 argues that there is a distinction between the use of a foreign states forces (not problematic) and private individuals with no connection to their home states armed forces. Percy, Security Council and the Use of Private Force, p. 627. See e.g. UNGA Res. A/39/84, 13 December 1984; UNGA Res. A/RES/41/80, 3 December 1986; UNGA Res. A/RES/37/109, 16 December 1982; UNGA Res. A/RES/36/76, 4 December 1981: despite strong language in the preambles, the operative paragraphs relate to the establishment and continuation of the mandate of the Ad Hoc Committee on the Drafting of an International Convention against the Recruitment, Use, Financing and Training of Mercenaries and all were adopted without a vote. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV), 24 October 1970; Denition of Aggression, UNGA Res. 3314 (XXIX), 1974. See Thomson, State Practices, as well as Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, The Hague, 18 October 1907, in force 26 January 1910. That convention did not oblige states to prohibit individuals from crossing its borders to offer their services to one of the Belligerents but it did prohibit the formation of corps of combatants. See Arts. 6 and 4 respectively. E.g. UNGA Res. 3103 (XXVIII), 1973.

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The Declaration on Friendly Relations is considered to constitute customary law, as does the Denition of Aggression. The fact that the related norms and prohibitions are customary paves the way for an incidental prohibition on the use of mercenaries in any rst use of force against another state. However, there is no indication that the use of mercenaries is prohibited in self-defence (and indeed the AU Convention would suggest that it is clearly permitted). When it comes to the law of neutrality, the prohibition in question is less concerned with states using mercenaries themselves than with their obligations in terms of preventing the formation of mercenary combatant corps on their territory and even preventing their own citizens from leaving to ght in foreign wars.304 The Hague Convention on Neutrality in Land Warfare prohibits states from allowing recruitment on their territory, amounting to at least a passive (or due diligence) obligation with respect to recruitment of mercenaries.305 Burmester nevertheless argues that there is no customary obligation arising solely from the law of neutrality for states to prevent their own nationals from joining a mercenary force.306 Needless to say, it would be a breach of neutrality for a state to use private actors (such as mercenaries) to intervene in a conict, but neutrality probably plays a less important role in governing most states behaviour today than the UN Charter principle of non-intervention or obligations set out by the Security Council with regard to a specic situation.307 Finally, the General Assembly expresses particular concern in its resolutions regarding the use of mercenaries to suppress self-determination movements (and these resolutions enjoy more universal approval by states).308
304

305

306

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308

See note below regarding Hague Convention on Neutrality; Burmester, Recruitment and Use of Mercenaries, pp. 414. Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in case of War on Land, The Hague, 18 October 1907, Art. 4 states: Corps of combatants may not be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents. (Entered into force 26 January 1910.) Burmester, Recruitment and Use of Mercenaries, p. 43. However, he went on to argue that when mercenaries are involved in a situation that threatens international peace and security, there may be an evolving or emerging obligation on States to prevent their nationals from joining such forces (at pp. 4950). See also Ch. 2, section E 2 below on neutrality. See UNSC Res. 161, 21 February 1961, and UNSC Res. 169, 24 November 1961, discussed in Burmester, Recruitment and Use of Mercenaries, p. 49. Compare, for example, the voting record on UNGA Res. A/RES/48/92, 16 February 1994 (a general resolution regarding mercenaries and self determination movements) with 108 Yes, 14 No, 39 Abstentions, to that on UNGA Res. A/RES/61/151, 14 February 2007 (which specically addresses private companies and mercenaries) with 127 Yes, 51 No and 7 Abstentions.

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The UN Security Council has also condemned the use of mercenaries and demanded that states refrain from using them in relation to specic conicts. These resolutions do not, however, amount to a general customary law prohibition on the use of mercenaries. Security Council resolutions obliging states to take specic action against mercenaries in the Democratic Republic of the Congo in the 1960s did not dene them and at the time of their adoption, no treaty-based denition existed.309 A recent Security Council resolution urged the relevant parties to refrain from any recruitment or use of mercenaries or foreign military units, which would seem to broaden the prohibited category considerably, but only for that situation.310 For obvious reasons, however, the Security Council has never urged parties to the conict in Iraq to refrain from using private forces or foreign military units. Percy argues that the Security Council has only directed states to deal with mercenaries in three specic situations when they were perceived as threatening territorial integrity, when they internationalized a conict by operating within one country from a base in another, or with another countrys support or when their actions threatened to create regional instability.311 Concerns about internationalizing a conict may be construed as the other side of the same coin of interfering in another states affairs. The other two issues are potentially broader in scope than the situations the General Assembly tends to express concern over, but to date they are limited to only those conicts or situations for which the Security Council has adopted a resolution.312 Many commentators argue that mercenaries should be regulated according to what they do, not due to their nationality or motivation.313 The fact that there is arguably no stand-alone norm prohibiting the use of mercenaries in any and all circumstances suggests that this is in fact precisely how mercenaries are regulated under customary law.314

309 310 311 312

313

314

See e.g. UNSC Res. 241, 15 November 1967. See UNSC Res. 1479, 13 May 2003, regarding Cte dIvoire, para. 14. (Emphasis added.) Percy, Security Council and the Use of Private Force, p. 635. See also UNSC Res. 1970, 26 February 2011, section 9, indicating the prohibition of mercenary services in Libya as part of the arms embargo and UNSC Res. 1973, 17 March 2011, preamble, Deploring the continuing use of mercenaries by the Libyan authorities as part of protection of the civilian population. These two could thus be added to the list. Burmester, Recruitment and Use of Mercenaries makes this plea at pp. 389; Percy, Security Council and the Use of Private Force, makes the same plea some thirty years later (pp. 63540). In contrast, treaty law denitions emphasize the motivations of a mercenary.

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Mercenaries do what states hire them to do. The only thing the customary norms on mercenaries do is to reinforce the notion that whether states violate their obligations through their own actors or through the use of private forces is irrelevant to a determination of whether a violation exists. Even if one accepts the existence of a customary norm regarding mercenaries, it is difcult to conclude that any such norm prima facie prohibits states from using PMSCs in any general way. This conclusion is sustained by the fact that a number of important states clearly feel free to use private military and security companies and to engage in international fora on the regulation of PMSCs.315 That being said, only three states (Ukraine, Cyprus and Uruguay) are parties to both the UN Convention and to the Montreux Document on the regulation of PMSCs.316 Although from this limited overlap one cannot decisively conclude that participating in regulation of private military companies does not violate a states treaty obligations under the UN or OAU Conventions, there is quite clearly a lack of practice and opinio juris to support a customary norm on mercenarism that prohibits outright the use of PMSCs. Indeed, even the working group on mercenaries appears to have abandoned Ballasteross approach of advocating control of PMSCs through customary law.317 Thus, neither the treaty prohibition on the use of mercenaries, nor any customary law norm on mercenaries would appear to be an impediment to a states capacity under jus ad bellum to employ PMSCs, so long as the
315

316

317

See e.g. the Montreux Document and the process leading to its adoption, http://icrc.org/ Web/eng/siteeng0.nsf/html/montreux-document-170908. See www.eda.admin.ch/eda/en/home/topics/intla/humlaw/pse/parsta.html for the participating states of the Montreux Document, www.icrc.org/ihl.nsf/WebSign?ReadForm&id=485&ps=P for states parties to the OAU Convention, and www.icrc.org/ihl.nsf/ WebSign?ReadForm&id=530&ps=P for states parties to the UN Convention (as of May 2011). Thirty-six states have signed the Montreux Document, thirty-two are parties to the UN Convention and thirty are parties to the OAU Convention. Poland has signed the UN Convention but has not ratied it and has signed the Montreux Document (which does not require ratication as it is not a treaty). It is rather calling for the adoption of a new convention or a protocol to the Mercenary Convention. See UN Doc. A/63/325, paras. 70, 734. It presented a draft convention to the Human Rights Council in September 2010, but that text was not adopted (see UN Doc. A/HRC/15/25 (2 July 2010) for the text of the draft convention). Instead, the Human Rights Council passed a resolution setting up an Open-ended intergovernmental working group to consider the possibility of elaborating an international regulatory framework on the regulation, monitoring and oversight of the activities of private military and security companies, 1 October 2010, UN Doc. A/HRC/RES/15/26.

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action for which states use them is not in itself a violation of that states international legal obligations.

6 Conclusion
The rules relating to the recourse to the use of force, including rules on peace support operations and mercenarism, provide some explicit and implicit limits on the ability of states to use PMSCs for certain activities and in certain contexts. We submit that the logic and structure of the international system supports an implicit prohibition on the outsourcing of a decision (on behalf of a state) to use force against or on the territory of another state. Furthermore, while PMSCs may play some roles in peace support operations, we are concerned that the current tendency to prefer robust peace operations under a Chapter VII mandate of the UN Security Council imposes an implicit requirement for peace forces to have combatant status, which, as we will demonstrate in Chapter 4 below, PMSCs do not tend to have. For this reason, coupled with concerns that resort to private forces may weaken the legitimacy of peacekeeping as an institution, we are not entirely convinced the existing legal framework supports a signicant development of their role as a peace force. We acknowledge, however, that it may be within the power of the Security Council to adopt terms in its resolutions that address these concerns. The evolution in law relating to privateering and the laws on mercenaries provide a strong indication that the potential contribution of private actors may be harnessed by states in armed conict, but on the condition that they are integrated into the command structure of the armed forces of a party to a conict. These limitations lead to and are reinforced by the following discussion of the restrictions that the jus in bello implies for PMSCs.

The limits imposed by the laws of war jus in bello

International humanitarian law (IHL) is the body of public international law that applies to and in situations of armed conict. IHL provides comprehensive rules for the protection of individuals in situations of armed conict and also regulates the conduct of hostilities. It applies independently of the legality of the resort to the use of force by either party and it is somewhat unusual in international law in that its rules and obligations apply directly to all individuals who nd themselves in a territory on which there is an armed conict, whether they are state or

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non-state actors, as long as their acts have a minimum link with the conict which is by denition always the case for acts for which PMSCs are contracted.318 We will discuss the application of those rules to PMSCs and their employees in detail in subsequent chapters. Here, however, we are concerned with the obligations of IHL for states and how those obligations affect the ability of states to use PMSCs in situations of armed conict. We will discuss not only combat roles of PMSCs, but other activities or potential activities of contractors as well. The bulk of the rules we are concerned with are found in the four Geneva Conventions of 1949, which have been universally ratied, the Additional Protocols to those conventions, the Hague Regulations of 1907, and customary international law. Our conclusion, outlined in detail below319 that (for the most part), unless they are incorporated as such, PMSCs are not members of the armed forces of states is signicant for this discussion. The starting point is that there is no black-letter rule in IHL explicitly forbidding a state from employing civilians in a general sense. In fact, Geneva Convention III prescribes that civilians accompanying the armed forces have prisoner of war (POW) status if captured.320 Article 4A(4) of Convention III provides that the following persons are POWs if they fall into enemy hands:
Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card

However, in order to benet from POW status, those civilians must refrain from directly participating in hostilities. The use of civilians as supply contractors and labourers is a long-standing feature of deployed forces and the protection accorded to them in the 1949 Conventions was an uncontroversial continuation of the protection

318

319 320

This is conrmed by the fact that non-state actors can be and have been found individually criminally responsible for violations of international humanitarian law. See Prosecutor v. Akayesu (Appeals Chamber Judgment) ICTR-964-I (1 June 2001), para. 444. This applies for non-international and international armed conicts. See Ch. 4, section A below. Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, in force 21 October 1950, 75 UNTS 135, Art. 4A(4) (GC III).

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already found in the 1929 Geneva Convention on Prisoners of War and the Hague Conventions of 1907.321 With respect to the hiring of civilians as private forces, however, the answer is much less straightforward. Many authors examine Article 47 AP I to the Geneva Conventions the rule on mercenaries discussed in the section above in an attempt to draw conclusions as to whether IHL prohibits or otherwise restricts a states lawful use of PMSCs.322 The focus on the rules relating to mercenaries may stem from the fact that PMSCs are often labelled as such in public discourse, or it may have been prompted by a search for a rule that may prohibit their use in general.323 While certain implied restrictions could perhaps be drawn from Article 47 of Protocol I, an analysis based solely on that article does not provide a denitive and complete answer to this question. Indeed, Article 47 of Protocol I only addresses what happens to individuals who come within its parameters. It says nothing explicit about the right of a state to employ private force(s), in contrast to the Mercenary Conventions described above. However, there are black-letter rules in the Geneva Conventions that explicitly require a state to use members of its armed forces or its civil servants for specic functions and duties. In addition, the notion that certain other activities should be reserved to members of a states armed forces may constitute an implied restriction on the ability of a state to lawfully employ private military companies for certain activities. Both types of limitations will be explored below.

Treaty-based limitations on the use of PMSCs

As indicated above, in international armed conicts, the employment of civilians in non-combat roles is anticipated by the Geneva Conventions and POW status is foreseen for them. The list in Article 4A(4) GC III of roles or tasks they may undertake is indicative rather than exhaustive (which we
321

322

323

Art. 81 of the 1929 Geneva Convention relative to the Treatment of Prisoners of War (27 July 1929) and Art. 13 of Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex (18 October 1907). See e.g. A. Hallo de Woolf, Modern Condottieri in Iraq: Privatizing War from the Perspective of International and Human Rights Law (2006) 13 Indiana J Global Legal Studies 315, 321 ff. Even states that have not ratied the Mercenary Conventions are concerned and take steps to prevent their armed forces from contracting mercenaries in their outsourcing rules. See Congress of the United States Congressional Budget Ofce, Contractors Support of U.S. Operations in Iraq (August 2008), p. 19, n. 40.

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may deduce from the use of the phrase such as), such that it is necessary to look more closely at the conventions to determine the limits to that list. A number of black-letter rules set down in the Third and Fourth Geneva Conventions and in the Hague Regulations have the effect of prohibiting states from using PMSCs in certain roles or to undertake specic tasks.

1.1 Administration of POW and internment camps The delegation of the command of POW camps and civilian internment camps to private companies is not permitted under IHL. Article 39 GC III (on Prisoners of War) stipulates:
Every prisoner of war camp shall be put under the immediate authority of a responsible commissioned ofcer belonging to the regular armed forces of the Detaining Power324

In some countries, the operation of detention facilities and prisons has been privatized.325 As such, one might be tempted to think that such a role would be suitable for private military companies in the context of armed conicts, especially since it is a non-combat role.326 However, this prohibition is not to be taken lightly. In fact, it represents a reinforcement of the text of the 1929 Geneva Convention on Prisoners of War, which stipulated that POW camps were to be placed under the authority of a responsible ofcer.327 The abuses that were suffered in POW camps
324

325

326

327

Emphasis added. The rest of that paragraph of Art. 39 reads: Such ofcer shall have in his possession a copy of the present Convention; he shall ensure that its provisions are known to the camp staff and the guard and shall be responsible, under the direction of his government, for its application. E.g. the UK, the United States, South Africa and Australia have privatized prisons. For the UK, see www.hmprisonservice.gov.uk/prisoninformation/privateprison/. The present government in New Zealand has introduced a bill to allow for privatized prisons. See Minister to visit Private Prisons in Australia (18 May 2009), www.beehive.govt.nz/release/minister +visit+private+prisons+australia (the ofcial website of the New Zealand government). South Africas law allowing for private prisons is Correctional Services Act of 1998, Chapter XIV, Joint Venture Prisons, s. 106. Many countries allow semi-private prisons, in which non-custodial services may be contracted to private companies (e.g. France, Germany, Brazil). In Israel, the Supreme Court has taken four years to issue a decision on the constitutionality of private prisons but has issued an injunction against the beginning of operation of the rst private prison. See H. Fendel, Commercially-Run Prison Shelved for Now (22 March 2009), www.israelnationalnews.com/News/News.aspx/130542. According to the ICRCs Interpretive Guidance, it may nonetheless constitute direct participation in hostilities. See Ch. 4 below for an extensive discussion. ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities (Geneva: ICRC, 2009). Jean Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary [GC III] (Geneva: ICRC, 1960), pp. 23940.

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during the Second World War, when camp management was delegated to non-commissioned ofcers and even to POWs themselves, are well known; curbing the possibility for such abuse was the impetus for strengthening the article and stating specically who may be given responsibility for administration of camps in the 1949 Geneva Conventions.328 The force of this obligation is bolstered by Article 12 GC III, which only allows the transfer of POWs to another power that is a party to the convention. The fact that POWs may not be transferred even to a state actor not bound by the specic obligations of GC III reinforces the inability of a state to delegate control of POW camps to even its own non-state actor that is not clearly bound by every obligation in the convention, even those which are not criminalized.329 The administration of internment camps for civilians is subject to a similar restriction.330 Article 99 of the Fourth Geneva Convention states: Every place of internment shall be put under the authority of a responsible ofcer, chosen from the regular military forces or the regular civil administration of the Detaining Power Thus, while the administrator of an internment camp for civilians does not have to be a commissioned ofcer or even a member of the armed forces, he does have to be in the regular employ of his government. It is important to recall that internment camps may be set up in occupied territory but that they may also be set up on a states own territory for the purpose of interning enemy civilians who are already present on that states domestic soil.331 This means that even if a state allows or uses private prisons in its domestic law enforcement, it may not use those same private companies (or other private military or security companies) to run internment camps on its own territory in situations of international armed conict.
328 329

330

331

Ibid., p. 240. Clearly and uncontroversially, the criminalized rules of IHL are binding upon all individuals in situations of armed conict. In addition, all IHL rules are binding upon all state agents, not only members of the armed forces. On the other hand, when it comes to positive obligations on a state to, for example, provide assistance to specic groups or in particular contexts, it is not clear that such obligations directly bind private individuals. For one possible interpretation of how these rules apply, see the discussion in Ch. 3 below. Geneva Convention IV permits a party to a conict and/or an occupying power to intern civilians if absolutely necessary for the security of the detaining power (on own territory) or for imperative reasons of security. See Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, in force 21 October 1950, 75 UNTS 287, Arts. 42, 43 and 78. Arts. 78 and 423 GC IV provide that a party may intern civilians in both of these circumstances.

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Furthermore, the Geneva Conventions impose restrictions on who may be given authority to order disciplinary punishments against POWs or civilian internees for infractions of the rules within the camps. According to Article 96 GC III, disciplinary punishment may be ordered only by an ofcer having disciplinary powers in his capacity as camp commander, or by a responsible ofcer who replaces him or to whom he has delegated his disciplinary powers. Even though the camp commander has the authority to delegate his disciplinary powers, he may only delegate them to a responsible ofcer who also complies with the requirements of Article 39, namely one who is a member of the regular armed forces and has a copy of the convention.332 The ability to delegate disciplinary authority was provided for due to the experience of the Second World War, when delay and complication arose when only one individual was competent to issue such orders in the large and populous camps.333 A similar restriction, for similar reasons, exists with respect to disciplinary punishment of civilian internees.334 The conventions stipulate further tasks that must be carried out by the camp commander, such as maintaining records.335 One may wonder whether a state may appoint individuals from its armed forces as camp commanders to administer each of its POW and internment camps and then hire a PMSC to do everything else (aside from ordering disciplinary punishments).336 For example, may PMSCs be used as guards of a POW or internment camp? May they build and maintain camps? May they employ POWs or internees? The Montreux Document would seem to acknowledge that outsourcing of some aspects of POW and internment camps under the command of a responsible

332 334

335

336

333 Pictet, Commentary GC III, p. 459. Ibid. Art. 123 GC IV states in part, Without prejudice to the competence of courts and higher authorities, disciplinary punishment may be ordered only by the commandant of the place of internment, or by a responsible ofcer or ofcial who replaces him, or to whom he has delegated his disciplinary powers. The difference from the POW Convention is that allowance is made for it to be a responsible ofcial of the government. GC III, Arts. 48 (ensuring transport of prisoners community property and luggage), 56 (maintaining records of labour detachments), 62 (approval of payscale for POW labour), 63 (counter-signing remittance slips) and 96 (maintaining record of disciplinary punishment). Several articles in the annexes to Geneva Convention III also give a specic role to the camp commander. Hoppe puts it as being a violation of IHL to allow contractors to operate a prisoner of war camp without military oversight. Carsten Hoppe, Passing the Buck: State Responsibility for Private Military Companies (2008) 19 EJIL 9891014, 994, emphasis added.

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state ofcer is permitted.337 Other rules applicable to detention or internment enable us to esh out the IHL framework governing a states ability to use PMSCs in this context. While PMSCs cannot be administrators of camps, nothing in the conventions would prohibit their being contracted to build or maintain them. Construction and maintenance is a common task of PMSCs, and, as noted above, is anticipated as a role for civilian contractors in Geneva Convention III.338 Thus, PMSCs may clearly be contracted to build POW camps. Installation and maintenance of their own camp is also a common task of POWs.339 In fact, Geneva Convention III allows a detaining power to compel POWs to perform a limited number of non-military tasks, including building, administering and maintaining their own camp.340 Furthermore, POWs are expressly permitted to work for private persons (within the limited work that they may be compelled to do). Consequently, although most of the work done by PMSCs in situations of armed conict would be beyond what POWs may be compelled to do since it tends to be military in character or purpose, it is possible to imagine that a PMSC could legally employ POWs for the building and maintenance of POW camps. This fact has further implications when it comes to the ability of PMSCs to guard POWs. According to Article 57 of Convention III, private persons who employ POWs may be responsible for guarding and protecting them, although the primary and entire responsibility for the maintenance, care, treatment, and payment of the working pay remains squarely on the detaining power, military authorities and camp commander. This means that it is possible to delegate the guarding of POWs to civilians under certain circumstances. It is therefore possible to imagine a context in which a PMSC may end up being delegated a certain amount of control over guarding and protecting POWs.
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338 339 340

Montreux Document on pertinent international legal obligations and good practices for states related to operations of private military and security companies during armed conict, UN Doc. A/63/467 and S/2008/636 (17 September 2008), Preface, para. 9(a); Part One, para. 2. Art. 4A(4) GC III. See H. S. Levie, The Employment of Prisoners of War (1963) 57 AJIL 31353. See Arts. 503 GC III. For their part, civilian internees may not be compelled to work but, if they so choose, may be employed by the detaining power to carry out administrative and maintenance work in their own camp and may be put on kitchen detail. See Art. 99 GC IV and Jean Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: ICRC, 1958), pp. 41315.

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A strict reading of Article 57 might lead to the conclusion that a camp commander may only delegate the responsibility for guarding and protecting POWs to a private person who employs them, and not to a private entity on a general basis. However, it is equally reasonable to interpret this article as evidence that the black-letter rules of the convention do not expressly prohibit the use of civilian (i.e. PMSC) guards since the camp commander may be authorized by his superiors to entrust the guarding of prisoners of war to civilians as well as to members of the armed forces.341 This scenario immediately raises the question as to the level of force that may be used against a POW who tries to escape. Convention III permits the use of deadly force in such cases as a last resort and when warnings have been given;342 this is because an attempt to escape is an act of war.343 This brings us to the crux of the matter: may a party to a conict authorize civilians or private persons to carry out acts of war? The Commentary to the Geneva Conventions is unambiguous on this point. It states:
only military personnel can respond by an act of war. Whatever the responsibility of private employers vis--vis the national authorities concerning the guarding of prisoners of war, such employers are forbidden to use weapons against prisoners, except in legitimate self-defence, which cannot arise solely from the fact that a prisoner attempts to escape.344

As such, if PMSCs act as guards, they may not shoot or use weapons against POWs who attempt to escape. This issue will be dealt with in greater detail in section B 2. It has signicant implications for one of the activities of PMSCs, which is guarding people, buildings and objects. In the law on non-international armed conicts there is no explicit prohibition on putting internment camps under civilian control. Nor can there be, since in non-international armed conicts it is understood that one party to the conict will not be combatants or members of a regular armed force. There is a degree of requirement that they be organized in order to be a party to an armed conict but otherwise there can be no requirement that they depend on a state since, usually, armed groups do not depend on a state.

341

342

Pictet, Commentary GC III, p. 296. Note that the statement in the commentary may be read either way. 343 344 Art. 42 GC III. Pictet, Commentary GC III, p. 296. Ibid.

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1.2 Requisitions Another black-letter rule requiring that an action be taken only by members of a states armed forces relates to the protection and treatment of private property in occupied territories. Article 52 of the Hague Regulations carves out a signicant exception to the principle of noninterference with private property,345 stating (in part):
Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. Such requisitions and services shall only be demanded on the authority of the commander in the locality occupied.

In effect, paragraph 52(2) is a mechanism to avoid pillage that uses a three-pronged approach: it makes plain that individual soldiers may not, of their own volition, requisition items; it limits the kind of items and services that may be demanded; and, nally, it limits who may benet from the requisitioned goods and services. Clearly, since the demand may come only on the authority of the commander in the area, a PMSC cannot order requisitions. Moreover, the United States Military Tribunal at Nuremberg in the Krupp Trial made it clear that requisitions by a private rm constitute pillage, even if those requisitions are authorised and actively supported by governmental and military agencies.346 In addition, the law requires that a receipt be given for requisitioned items that would engage the government, a power that a private company does not have. Article 52 of the Hague Regulations also raises further questions. The limitation that any property that is requisitioned must be only that which is for the needs of the army of occupation is vital to curtailing demands on private property. Yet it raises the question whether a
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That principle is enshrined in Arts. 46 and 47 Hague Regulations: Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, The Hague, October 18, 1907, reproduced in D. Schindler and J. Toman, The Laws of Armed Conict, 4th edn (Leiden: Martinus Nijhoff, 2004), pp. 6087. US v. Alfried Krupp and ors, United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. X, 1949 (17 November 194730 June 1948) 13059, repr. in M. Sassli and A. Bouvier, How Does Law Protect in War? (Geneva: ICRC, 2006), pp. 10306. The rules of IHL apply not only to combatants and members of the armed forces of parties to the conict, but also to private individuals and, in some cases, businesses. Note however that according to the Statute of the International Criminal Court, legal persons cannot be tried for commission of war crimes. See Art. 25 of the Rome Statute, UN Doc. A/CONF.183/9 17 July 1998, in force 1 July 2002.

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PMSC constitutes part of the army of occupation such that it may benet from requisitioned goods and services. In Krupp, the tribunal observed that requisitions and services shall not be demanded except for the needs of the Army of Occupation.347 It went on to say, it has never been contended that the Krupp rm belonged to the Army of Occupation. For this reason alone, the requisitions in kind by or on behalf of the Krupp rm were illegal.348 A plain reading and straightforward interpretation of the term army of occupation coupled with our analysis below that PMSCs are normally not part of the armed forces of a state would lead to the conclusion that goods and services may not be requisitioned for their benet. However, this raises the question as to whether civilians accompanying the armed forces in the sense of Article 4A(4) GC III form part of the army of occupation.349 This is no small matter the number of such persons may as much as double the number of armed forces, and, thus, would considerably increase the burden on the population (even though the law only permits such requisitions as the population can bear). At the very least, an occupying power would have to distinguish between those PMSCs contracted by the armed forces and those contracted by other government departments. Examples of the kind of property subject to requisition include food and fuel supplies, liquor and tobacco, cloth for uniforms, leather for boots and the like,350 but there is no set list as to which articles may be requisitioned.351 Military manuals reiterate that need is central for a requisition to be lawful, stating, for example, [t]he taking of such articles is forbidden unless they are actually required for the needs of the

347 348 349

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Sassli and Bouvier, How Does Law Protect in War?, p. 1031. Emphasis in original. Ibid. The UK Manual of the Law of Armed Conict refers, in its discussion of requisitions, to items for the needs of the occupying force or occupying power, both of which are arguably broader terms than army of occupation: UK Ministry of Defence, Manual of the Law of Armed Conict (Oxford University Press, 2004), pp. 299 (para. 11.76) and 301 (para. 11.83). Other manuals do not dene the term. Art. 55 GC IV permits the occupying power to requisition foodstuffs for use by the occupation forces and administration personnel, which, again, is slightly broader than forces, but it should be recalled that an occupying power may not send its civilian population into an occupied territory. Canada, Chief of Defence Staff, Law of Armed Conict at the Operational and Tactical Levels (13 August 2001) (B-GJ-005104/FP-021), para. 1240.1. L. Oppenheim, International Law: A Treatise, vol. 2: Disputes, War and Neutrality, ed. H. Lauterpacht, 7th edn (London: Longman, 1952) (Oppenheim and Lauterpacht, International Law), para. 147.

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occupying army.352 One author points out that there is no automatic limit to an occupying powers right to requisition even luxury food items, but that luxury items such as perfume cannot fall within Article 52 because such items are not needed.353 Thus it is an items capacity to full a need of the army, and not its quality or nature, that is important. The additional requirement that requisitions be made only on the order of the commanding ofcer in the area conrms the interpretation that requisitioned items are for local forces. It has long been understood that the removal of food supplies for the maintenance of other forces or populations in foreign places, appears by implication to be contrary to the Hague Regulations and should be expressly forbidden.354 Feilchenfeld goes even further, arguing that requisitions must not be destined for an army of the occupant stationed in another occupied or invaded area, suggesting that perhaps, for example, it would be in contravention of Article 52 for the US military to requisition food in Baghdad for UK troops in Basra.355 It would seem that the latter interpretation is too narrow in an age in which goods are regularly transported long distances within (and between) states. Nonetheless, the basic principle that requisitioned items should not be unnecessary and useless, merely designed to enrich the occupants home country levied for the purpose of selling the requisitioned articles, or have as their main purpose the ruin of the occupied country or its inhabitants remains pertinent and true today.356 Requisitions cannot be made to meet the general needs of a belligerent.357 The implication for PMSCs is that they should be self-sustaining. If armed forces do requisition goods, they must do so themselves and should not pass on requisitioned items to PMSCs. Furthermore munitions of war may be seized by an army of occupation, whether they belong to private individuals or are state property, but it is the state occupying power that takes possession of such items.358
352

353 354

355 357 358

Canada, Chief of Defence Staff, Law of Armed Conict at the Operational and Tactical Levels, para. 1240.1 Emphasis added. H. A. Smith, Booty of War (1946) British Ybk Intl L 227, 2289. Hyde, cited in E. H. Feilchenfeld, The International Economic Law of Belligerent Occupation (Washington: Carnegie Endowment for Internationasl Peace, 1942 [repr. New York, 2000]), p. 35, n. 7. 356 Feilchenfeld, International Economic Law of Belligerent Occupation, p. 141. Ibid. Oppenheim and Lauterpacht, International Law, para. 147. Hague Regulations, Art. 53(2). Note that even such property must be restored or compensation paid, if it was taken from private individuals, when peace is made. See also J. Stone, Legal Controls of International Conict (London: Stevens & Sons, 1954), pp. 714 ff.

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Thus, for example, if a PMSC were to capture small arms, it would have to hand them over to the state occupying power. It may not keep them for its own use. It remains nevertheless questionable whether a PMSC may seize such items due to the restriction of this right to the army of occupation.

1.3 Conclusion There are, thus, a number of black-letter rules prohibiting persons other than members of the armed forces from carrying out certain tasks or being given some specied responsibilities. The reason the Hague and Geneva Conventions specically designate state actors of a certain rank to carry out these tasks is because states had experience at the time of drafting the conventions that abuses occur when these tasks are delegated more broadly. One could imagine that if negotiating today, some states would seek to include provisions on other issues restricting a state from tasking anyone other than a member of its armed forces with certain functions, such as interrogation, conducting hostilities and so forth. 2 Implied limitations
The relative paucity of black-letter rules prohibiting delegation of certain tasks to private persons necessitates a discussion on whether IHL contains implied limitations. In the following pages, we will argue that IHL implies that certain activities must be carried out by state armed forces: the conduct of hostilities, judicial decision-making, the maintenance of law and order and public safety, and the conclusion of agreements with the other parties to the conict. We will also outline limitations that ow from the rules on responsibility within IHL.

2.1 Activities reserved for the armed forces 2.1.1 The conduct of hostilities The conduct of hostilities is often considered to be a very small part of what PMSCs currently do.359 If one considers the conduct of hostilities which many refer to as combat to consist solely of planning and carrying out purely offensive military operations in the colloquial sense of the term, that analysis may be correct. However, as the conduct of hostilities has to be viewed more broadly, it immediately becomes apparent that even acts such as
359

Select Committee on Foreign Affairs, Examination of Witness (Lt. Col. T. Spicer OBE) 11 June 2002, Response to Mr Chidgey, para. 12.

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providing armed security may put PMSCs in the position of participating in and conducting hostilities, as will be shown. There is no uniform term for hostilities in the relevant treaties; the terms hostilities, military operations, warfare and simply operations are all used interchangeably.360 Nevertheless, one may dene the concept of hostilities as the (collective) resort by the parties to the conict to means and methods of injuring the enemy.361 Furthermore, given that many PMSCs (and the governments hiring/contracting them) insist that they act only defensively, it is imperative to bear in mind the denition of attacks under IHL, which means acts of violence against the adversary, whether in offence or in defence.362 Finally, some companies lead offensive operations under the rubric of training armed forces and others argue that they should be permitted to carry out offensive operations, whether for a state or in the course of a peace operation.363 Despite a widely perceived opposition to such use of PMSCs, this possibility must be taken seriously in order to provide a comprehensive picture of the legal framework governing their use. In order to examine whether and how IHL implies that the conduct of hostilities should be reserved to the armed forces of states, it is necessary to understand the fundamental rules on the conduct of hostilities. The body of law regulating what means and methods of warfare may be used in a situation of armed conict is contained in numerous treaties and much of it is also widely recognized as customary international law.364 Even more fundamentally, the whole of it ows from (or can be distilled into) a few essential principles. The law on the conduct of hostilities seeks to strike a difcult and delicate balance between the principle of humanity and the principle of military necessity, which accepts that states may do what is militarily necessary in order to achieve their lawful and legitimate goals.365 In the words of the preamble to the St Petersburg
360

361 362 363

364 365

Section II of the regulations annexed to Hague Convention IV refers to hostilities; the Geneva Conventions and Additional Protocols also refer to military operations (Art. 53 GC IV and Art. 51(1) AP I) and warfare (Art. 35(1) AP I). ICRC, Interpretive Guidance, p. 43. Art. 49(1) AP I. Select Committee on Foreign Affairs, Examination of Witness (Lt. Col. T Spicer OBE) 11 June 2002, Response to Mr Pope, paras. 34; M. Boot Darfur Solution: Send in the Mercenaries, Los Angeles Times, 31 May 2006, B13. See esp. Henckaerts and Doswald-Beck, Customary International Humanitarian Law. In the words of the drafters of the St Petersburg Declaration, the technical limits at which the necessities of war ought to yield to the requirements of humanity. Note that this is distinct from the more general Martens Clause, which is in the preamble to the fourth Hague Convention.

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Declaration of 1868, the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy and that for this purpose it is sufcient to disable the greatest possible number of men (emphasis added). This principle is the foundation of limited war. These principles must not be mistaken for the wishes of professional do-gooders; in fact, the St Petersburg Declaration was negotiated entirely and exclusively by military men.366 In order to have operational meaning, the principle of humanity is lled out by the principles of necessity and proportionality. In addition, the principle of distinction, which is the cornerstone of the protection of civilians from the effects of hostilities, requires ghters to distinguish between combatants and civilians and between military objectives and civilian objects. This section will explore how these principles, which serve as the foundation of IHL on the conduct of hostilities, affect the delegation of combat tasks to PMSCs in situations of armed conict (especially international armed conicts).
2.1.1.i Military advantage and the principles of necessity and proportionality IHL is premised on the notion that a state may pursue military operations in order to prevail militarily over an adversary, and aims to balance the suffering caused by armed conict by limiting the means and methods of warfare, among other things. IHL is thus premised on the fact that the only legitimate interest of a state in an international armed conict is to further its own military advantage.367 This principle governs the planning of military operations as a whole, but it also lters down to the rules on attacking each and every object in a campaign and in an armed conict. For example, in order to know whether an object may be directly targeted, one has to be satised that there is a denite military advantage to destroying (or capturing or neutralizing) an object and that that object is making an effective contribution to the military action of the enemy.368 States consider that the military advantage anticipated
366

367

368

L. Renault, War and the Law of Nations in the Twentieth Century (1915) 9 AJIL 116, 3. According to the preamble, it was an International Military Commission that adopted the St Petersburg Declaration in 1868. There is, however, a question as to whether this tactic or strategy remains true in contemporary conicts. See the St Petersburg Declaration. International law does not accept states prosecuting wars in order to decimate a civilian population etc. Art. 52(2) AP I; widely recognized as customary international law. See Marco Sassli and Lindsey Cameron, The Protection of Civilian Objects: Current State of the Law and Issues de lege ferenda in N. Ronzitti and G .Venturini (eds.), The Law of Air Warfare: Contemporary Issues (Utrecht: eleven, 2006), pp. 3574, 4950.

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from the attack is intended to refer to the military advantage anticipated from the attack as a whole and not from isolated or particular parts of the attack.369 In addition, the effects of such an attack on civilians and civilian objects must comply with the proportionality principle. This has repercussions for the privatization of military command all the way down the chain. Junior ofcers in regular state armed forces may have orders to attack a particular objective, but they also know what the overall aim of an operation or a campaign is. This is the whole point of having a military chain of command: it allows ofcers at the lower levels of command to evaluate the importance of a military objective under changing and unpredictable circumstances in the light of the operation as a whole, and to respond accordingly. Alternatively, a junior ofcer knows that someone else in the chain of command has made and continues to make the necessary evaluation. In addition, there is an obligation to cancel or suspend an attack if it becomes apparent that it is not a military objective or if it can be expected to cause incidental civilian losses that would be disproportionate to the military advantage anticipated.370 Integration into a chain of command means that a commander is incorporated into a system in which he knows that, when given an order to attack, the lawfulness (proportionality etc.) of that attack has been evaluated. Until he is faced with evidence showing the contrary, he may trust that that evaluation continues to be valid up to the moment of the attack. A PMSC who is not integrated into a chain of command, however, does not have the benet of being able to rely on a trusted system. In addition, a PMSC outside of the chain of command cannot feed information back up the chain, including in order to ask questions to verify a given target. Determining whether an object is a legitimate military objective (based on the military advantage its destruction entails) is an exceptionally important responsibility, since, according to IHL, it is not only objects that are military in nature that may become the legitimate targets of attack, but also objects which by their location, purpose or use make an effective contribution to the enemys military efforts.371 Thus, objects
369

370 371

An attack as a whole must be a nite event and not confused with the entire war. For the declarations of states when adopting Art. 52 AP I, see Ofcial Records, vol. VI, 164 (UK), 179 (Canada), 188 (Germany), 195 (The Netherlands), 231 (Italy), 241 (US) and upon ratication Belgium, Italy, the Netherlands, the UK, New Zealand, Spain and France. See www.icrc.org/ihl. Art. 57(2)(b) AP I. Art. 52(2) AP I, widely recognized as customary international law. See also Rule 8 of CIHL study: Henckaerts and Doswald-Beck, Customary International Humanitarian Law, p. 29.

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that are normally civilian in nature may become legitimate military objectives such that they may be attacked. Military commanders down the chain of command may be called upon to make such determinations when guiding the operations of their units; however, being integrated into a wider chain of command, they know what the broader operations are or they know that someone above them in that chain knows and are therefore in a position to assess the ongoing military advantage of attacking a given object. But even if an object is clearly a legitimate military objective, it still may not be lawful to attack such an object if the expected consequences for civilians would be excessive in relation to the concrete and direct military advantage anticipated. The principle of proportionality is codied in Article 51(5)(b) of Protocol I but it is also a rule of customary international law.372 The rule prohibits attacks, even if directed at a military objective, if they may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Again, the uid and changing circumstances that prevail in situations of armed conict described above underscore the importance of being plugged in to a broad chain of command in order to evaluate the necessity and proportionality of an attack.373 Ofcers in a chain of command are able to evaluate the continued (or not) military advantage of their attack and to determine whether the destruction of a particular objective would cause disproportionate harm to civilians or civilian objects (despite having had orders to attack) based on their understanding of where their orders t within the operation or campaign as a whole. To be sure, proportionality is not measured by the overall proportionality of the operation;374 however, that being said, the proportionality of an attack on a single military objective may change in relation to what is happening in an operation as a whole. PMSCs are not integrated into a military chain of command. US doctrine and ofcial analyses of PMSCs explicitly state that DoD
372

373

374

Rule 14 CIHL study: Henckaerts and Doswald-Beck, Customary International Humanitarian Law, p. 46. The notion of exactly what ratio of anticipated civilian injury or death is not excessive in comparison to the expected military advantage is not set out in law and is a matter of perpetual controversy. However, the key issue with PMSCs is that, if they are not integrated into a states military chain of command, they do not have the capacity to make a reasonable evaluation. Sassli and Cameron, The Protection of Civilian Objects, p. 66.

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contractors are not in the military chain of command,375 and it goes without saying that a PMSC hired by a separate state agency (e.g. for the United States, the USAID or the Department of State,376 or for the UK, the Department for International Development377) are not integrated into the military chain of command. The analysis required on an ongoing basis in the conduct of hostilities requires knowledge of the big picture, including the military capacity of the state, and may often rely on information only provided to those who have security clearance. Anecdotes abound of PMSC convoys being ambushed by insurgent forces because they did not have the benet of maps that were classied documents in the possession of US commanders. The sheer numbers of individuals working for PMSCs should not be misunderstood as evidence that they have access to the big picture of operations since there are in fact hundreds of individual companies and information is likewise parcelled out. Furthermore, while some PMSCs are closely involved in intelligence operations,378 the role that some PMSCs play in gathering and analysing intelligence must not be perceived as evidence that PMSCs in general have access to classied intelligence. It is most often not the same companies that are involved in intelligence-gathering and analysis and in other kinds of operations. Indeed, PMSCs are often left to rely on information passed to them informally by connections within the armed forces in order to plan and evaluate the risks of their operations. PMSCs may be organized into units with team leaders when they are carrying out the terms of their contracts. They thus may have some organizational structure such that there is some semblance of hierarchy within the PMSC unit, but this line of command is not plugged into the military chain of command.379 The crucial question is whether even a team leader of a PMSC unit is in a position to be able to evaluate
375

376

377

378 379

Congressional Budget Ofce, Contractors Support of U.S. Operations in Iraq (August 2008), p. 22 specically states that even the Department of Defense contractors are not integrated into the chain of command. Congressional Budget Ofce Contractors Support of U.S. Operations in Iraq (August 2008) gives the gures on which agencies hire them. The UK Department for International Development contracted PMSCs in Iraq and Afghanistan for security operations. See response of Hilary Benn to question by Norman Baker of 19 March 2007, Hansard, HC, vol. 458, col. 615W (19 March 2007) (Written Answers). See Simon Chesterman, We Cant Spy If We Cant Buy! (2008) 19 EJIL 105574. Indeed, if it were, a PMSC operating in an international armed conict could qualify as a force under Art. 4A(2) GC III and its members would have combatant status.

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whether an attack is necessary and proportionate. Proportionality entails weighing whether an anticipated effect is proportionate to something else the military advantage anticipated. Being outside of the chain of command, how can they evaluate the importance of a military objective? In a given operation? To the campaign as a whole? If they cannot make that determination, they cannot gure out whether it is proportionate or necessary under changing circumstances of operations. As such, they lack the basic information necessary to be able to comply with the requirements of IHL. Without proper knowledge of the operation as a whole and the state interest, it is extremely difcult to make determinations regarding military advantage and proportionality. Thus, PMSCs operating outside of the chain of command are not in a position to comply fully with the fundamental rules of IHL if they engage in the conduct of hostilities. This is not to say that a PMSC cannot work alongside a government in planning military strategy and comply with IHL. Indeed, that is a role PMSCs have played prominently in the past and continue to play.380 However, it does call into question the ability of a state to give a PMSC unit responsibility for tasks that may draw them into conducting hostilities. The idea that a state that does not have its own armed forces could hire a PMSC to prosecute a war for it has been suggested (the quintessential example being of course Costa Rica). In the most prominent example of a state hiring a PMSC to conduct operations on a large scale in a non-international armed conict, the state in question incorporated the PMSC into its own armed forces, thereby ensuring, at least theoretically, that the PMSC had access to necessary government information and was in a position to conduct hostilities in accordance with IHL.381 Granted, it is difcult to imagine a state hiring a PMSC for offensive operations, even if they will be responsible only for a part of an operation or campaign, and not incorporating it into its own armed forces due to the problems of communication and co-ordination that would ensue.382

380

381

382

The most common example is MPRI in Bosnia in the mid-1990s. See also Avant, The Market for Force, p. 10, Table 1.1. The most frequently cited example is the action of EO in Sierra Leone. See also T. Spicer, An Unorthodox Soldier: Peace and War and the Sandline Affair (Edinburgh: Mainstream Publishing, 1999), p. 53: our operatives are always enlisted in the forces of the governments who employ us, not least to ensure a clear chain of command. As Admiral William Fallon, former commander of US CENTCOM stated, my instinct is that its easier and better if they were in uniform and working for me, cited in R. de Nevers, Private Security Companies and the Laws of War (2009) 40 Security Dialogue 16990, 187.

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This observation illustrates that the rules of IHL and a states needs and interests in armed conict should coalesce. Nevertheless, it is important to bear in mind that even operations conducted in defence of an object or a convoy may lead to a PMSC engaging in the conduct of hostilities.383 Even states that rely heavily on PMSCs recognize that military command may not be outsourced to private actors. A 1992 US policy circular on outsourcing listed the command of military forces, especially the leadership of military personnel who are members of the combat, combat support or combat service support role as an inherently governmental function not susceptible to outsourcing.384 The wording of a more recent policy document maintains the position that some aspects of armed operations are inherently governmental, but the language is even more vague: It is clear that government workers need to perform certain warghting, judicial, enforcement, regulatory and policy-making functions 385 The wording of these documents begs the question as to what level of command is inherently governmental is it only the highest level of command? The highest command levels and strategic planners? Or does it also imply all commissioned ofcers? What might certain warghting functions be? Is it something other than any leadership role? Is it all combat activities? Anything involving the use of deadly force? The draft US National Defense Authorization Act of Fiscal Year 2009, as it was passed by the Senate and about to be passed by the House, contained a provision that recognized exactly the types of problems outlined above and provides some grist for interpretation. The draft provision stated:
Sec. 841. Performance By Private Security Contractors Of Inherently Governmental Functions In An Area Of Combat Operations. (a) the regulations issued by the Secretary of Defense shall be modied to ensure that private security contractors are not authorized to perform inherently governmental functions in an area of combat operations.

383 384 385

Art. 49 AP I; see also below. US Ofce of Management and Budget Directive 921 (1992). US General Accounting Ofce, Commercial Activities Panel, Improving the Sourcing Decisions of the Federal Government, Statement of David M. Walker, Comptroller General, 27 September 2002, http://gao.gov/new.items/d02847t.pdf.

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It then dened certain inherently governmental functions as:


(1) security operations for the protection of resources (including people, information, equipment, and supplies) in uncontrolled or unpredictable high threat environments if such security operations (A) will be performed in highly hazardous public areas where the risks are uncertain and could reasonably be expected to require deadly force that is more likely to be initiated by personnel performing such security operations than by others; or (B) could reasonably be expected to require immediate discretionary decisions on the appropriate course of action or the acceptable level of risk (such as judgments on the appropriate level of force, acceptable level of collateral damage, and whether the target is friend or foe), the outcome of which could signicantly affect the life, liberty, or property of private persons or the international relations of the United States.386

If adopted, this provision would have required that PMSCs be prohibited from performing inherently governmental functions in volatile areas and dened those functions as security operations (including guarding functions) where deadly force is likely to be used (but not just in self-defence (para (b)(1)(A))) and where the PMSCs would need to have a level of immediate discretionary decision-making power. The formulation of this provision is revealing: it illustrates that it is the impossibility of having conrmation or refusal presumably by a government ofcer or agent of a proposed course of action involving a use of deadly force beyond individual self-defence that poses problems. Such a provision may have gone some way to alleviating the concerns raised above. The potentially deleterious effects of private individuals exercising such discretion in a theatre of combat have been raised by military writers,387 which serves to illustrate that IHL is aligned with military efciency. However, the nal version of the Act did not contain this clause because former President Bush let it be known that he would veto the entire Defense Authorization Act if it

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387

S.3001 section 841 as adopted by US Senate in September 2008. In addition, the draft required (2) That the agency awarding the contract has appropriate mechanisms in place to ensure that private security contractors operate in a manner consistent with the regulations issued by the Secretary of Defense J. S. Thurnher, Drowning in Blackwater: How Weak Accountability over Private Security Contractors Signicantly Undermines Counterinsurgency Efforts (July 2008) Army Lawyer 6490.

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contained section 841.388 It was therefore replaced by a Sense of Congress provision, which states:
Sec. 832. Sense Of Congress On Performance By Private Security Contractors Of Certain Functions In An Area Of Combat Operations. It is the sense of Congress that (1) security operations for the protection of resources (including people, information, equipment, and supplies) in uncontrolled or unpredictable high-threat environments should ordinarily be performed by members of the Armed Forces if they will be performed in highly hazardous public areas where the risks are uncertain and could reasonably be expected to require deadly force that is more likely to be initiated by personnel performing such security operations than to occur in self-defense; (2) it should be in the sole discretion of the commander of the relevant combatant command to determine whether or not the performance by a private security contractor under a contract awarded by any Federal agency within a designated area of combat operations is appropriate and such a determination should not be delegated to any person who is not in the military chain of command; (4) the regulations issued by the Secretary of Defense should ensure that private security contractors are not authorized to perform inherently governmental functions in an area of combat operations.389

In addition to the much weaker limitations on PMSCs in that provision, it is worth noting that the US government put out a bid for tenders for PMSCs to provide security for forward operating bases in Afghanistan.390 This suggests that the Obama US administration is also not prepared to impose signicant limits on outsourced force. This tender should be considered in light of the fact that government studies reported concerns that PMSCs following the Rules on the Use of Force (rules directing PMSCs to use an escalation of force rather than direct engagement) did not provide sufciently robust protection of such bases.391
388

389

390

391

See Statement of Administration Policy: S.3001 National Defense Authorization Act for Fiscal Year 2009, 9 September 2008. Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Enrolled as Agreed to or Passed by Both House and Senate); Subtitle D Provisions Relating to Acquisition Workforce and Inherently Governmental Functions S.3001. W. Pincus, Military Weighs Private Security on Front Lines: Firm Could Have Broad Protection Authority in Afghanistan, Washington Post, 26 July 2009. US, Commission on Wartime Contracting in Iraq and Afghanistan, At What Cost? Contingency Contracting in Iraq and Afghanistan (Interim Report), June 2009, pp. 723.

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Current US military doctrine requires that if a PMSC wishes to use force in excess of that required for self-defence, the PMSC must have permission from the commanding ofcer in the region to do so.392 But having permission to use force is distinct from using force under specic orders from a commanding ofcer. PMSCs are obliged to obey their contracting ofcer, who is not in theatre with them and who does not issue specic orders for each operation. According to new regulations introduced to address a perceived lack of control over PMSCs, they are required to obey the commanding ofcer in the area where they are operating, but they are not under his or her command.393 They are responsible only to the contracting ofcer. While under the law of state responsibility such a level of control may be sufcient to attribute a PMSC to a state, it is not tantamount to command control in a situation of armed conict. Being thus outside of the military chain of command, PMSCs are formally and consistently in a position of lacking the necessary information to make appropriate and informed assessments regarding the military necessity and proportionality of attacks. Is it proportionate if twenty civilians are killed (as collateral damage) in order to protect a convoy? One hundred civilians? A trickier situation prevails in the Provincial Reconstruction Teams (PRTs) in Afghanistan, where the UK Department of Foreign Affairs and International Development uses PMSCs to protect the PRTs themselves, including civilian individuals and the locations in which they work. Since PRTs involve a complex mix of civilians and military, the provision of site security by such PMSCs can raise sensitive issues. Finally, when it comes to other obligations in the conduct of hostilities, such as target verication394 and taking precautionary measures,395 permitting PMSCs outside of the chain of military command to conduct hostilities may amount to an unacceptable watering down of the rules. What is feasible for a PMSC to do to verify a target may be much less than what is feasible for the state, especially when the state refuses to share classied information with contractors for security reasons. Thus,

392

393

394

DoD 2005 3020.41. See also Defense Federal Acquisition Regulation Supplement Part 252, Solicitation Provisions and Contract Clauses. US Dept of Defense, Private Security Contractors Operating in Contingency Operations Federal Register (17 July 2009), vol. 74, no. 136, adding to 32 CFR 159, esp. at Sec. 159.5 (e) (1)(3), p. 34693. 395 Art. 57(2)(a)(i) AP I. Art. 57(2)(a)(ii) AP I.

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although it is technically possible for PMSCs to comply with these rules to the best of their ability, states relying on PMSCs for such roles would not be fullling their obligation to ensure the respect of the conventions in good faith. It is true that civilians who are unlawfully directly participating in hostilities are expected or obliged to comply with IHL rules on the conduct of hostilities. This means that they are expected to attack only military objectives and to respect the principle of proportionality. Yet we have argued here that it is very difcult to respect these principles without being integrated into a proper military chain of command. The difculty of respecting these obligations for civilians who directly participate in hostilities is not incompatible or inconsistent with the existence of a legal obligation to nevertheless comply with the laws and customs of war. On an individual level, a person who is directly participating in hostilities must do everything in his power to comply with these principles. The difculty of doing so does not affect the obligation on the individual, but it does have implications for a state when it comes to using actors who are not in a position to respect IHL to the fullest extent possible since states have an obligation to respect and ensure the respect of IHL (Article 1 common to the four Geneva Conventions). In addition, normally, a civilian who is directly participating in hostilities is not part of a larger group or plan and therefore can make his own evaluation of the proportionality. A PMSC, on the other hand, is part of a wider military campaign, without being fully integrated into it.
2.1.1.ii Distinction The principle of distinction is at the heart of IHL and is fundamental to the protection of civilians during the conduct of hostilities. It is enshrined in Article 48 AP I and is recognized as customary international law.396 According to Article 48:
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

396

It is recognized as a peremptory norm by the ICJ in Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, paras. 789. (The Court used the phrase intransgressible principles of international customary law rather than jus cogens or peremptory norms.)

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Civilians and civilian objects may not be the direct targets of attack unless the civilians are directly participating in hostilities or the objects have become lawful military objectives.397 Since it would be unlawful a war crime or possibly a grave breach for a combatant to directly target a civilian who is not directly participating in hostilities, combatants need to be able to distinguish between combatants on the opposing side and civilians. IHL therefore denes who is a combatant and, as such, by opposition, denes who is a civilian.398 In terms of a state using PMSCs, it is important that opposing forces know or are able to determine whether PMSCs are combatants or civilians. The question of whether PMSCs have civilian or combatant status is addressed in detail elsewhere in this work;399 for the present discussion, it is sufcient to state that the vast majority of governments, legal scholars and PMSCs themselves argue that they do not have combatant status. Certain provisions of IHL treaties are designed to safeguard the ability of the parties to respect the principle of distinction. In particular, civilians who directly participate in hostilities lose their protection as civilians for such time as they participate,400 and military who do not distinguish themselves from the civilian population lose their protection as combatants (i.e. their right to POW status and combatant immunity).401 With the exception of a few jurisdictions, it is not a war crime for a civilian to directly participate in hostilities,402 but the removal of protection from

397 398

399 401

402

See Arts. 51(3) and 52(2) AP I. For combatants, Art. 4A(1), 4A(2), 4A(3), 4A(6) GC III and Art. 43 AP I dene who is a combatant and Art. 50 AP I is considered to dene who is a civilian. 400 See Ch. 4, section B below. Art. 51(3) AP I. Art. 44(3) AP I; note that spies may also lose protection but their loss of protection is not linked to the fact that their acts are dangerous for the civilian population and therefore not linked to the principle of distinction. This is afrmed by the ICRC in the conclusion to the interpretive guidance on direct participation in hostilities: ICRC, Interpretive Guidance, p. 85. But see the Referred Charges against Omar Khadr by the US Military Commission (2007), Charge I, murder in violation of the law of war, described in the charge as while in the context of and associated with armed conict and without enjoying combatant immunity, unlawfully and intentionally murder U.S. Army Sergeant First Class Christopher Speer, in violation of the law of war, by throwing a hand grenade at U.S. forces resulting in the death of Sergeant First Class Speer. www.defense.gov/news/Apr2007/Khadrreferral.pdf . See also the draft Swiss legislation on PMSCs, which would criminalize direct participation in hostilities by PMSC personnel, Loi fdrale sur les prestations de scurit prives ltranger, draft Arts. 6 and 19, www.ejpd.admin.ch/content/ejpd/fr/home/dokumentation/mi/2011/20111012.html.

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individuals for certain improper behaviour in a situation as chaotic as armed conict inevitably has dire consequences for the individuals concerned and was not adopted lightly or without forethought. Rather, these severe consequences reect its vital importance in IHL and are designed to enable parties to conicts to preserve the principle of distinction. Respect for the principle of distinction entails that a state may not use civilians to directly participate in hostilities. Indeed, if a state were to do so, it would be putting its own civilians in jeopardy since civilians directly participating in hostilities lose protection against attack and may be arrested and tried for such acts. What is more, states are responsible for ensuring that the principle of distinction is upheld. If a state were to permit civilians to undertake combat functions, or to require them by contract to do so, that state would violate its obligation to uphold the principle of distinction. Civilians accompanying the armed forces are not required to distinguish themselves in any way under Article 4A(4) of Convention III in order to benet from POW status, in stark contrast to combatants (Article 4A(1) and 4A(2)). Thus, while states are free to hire or contract certain activities to civilians and those civilians enjoy the protection of POW status, they may not require or permit those individuals to directly participate in hostilities. This is a simple, logical conclusion: since the provisions of Convention III do not:
link the Prisoner of War status of civilian augmentees to compliance with the distinction facilitators applicable to combatants, it would irreparably dilute the distinction compliance mechanisms of [IHL] if civilians were permitted to perform functions analogous to those of combatants, the most obvious of which is participation in hostilities.403

At a minimum, then, PMSCs (that are not integrated into state armed forces) may not directly participate in hostilities. This conclusion then begs the question as to what precisely constitutes direct participation in hostilities. The concept is not dened in any of the conventions or protocols. An essential, preliminary remark is that
403

G. Corn, Unarmed but How Dangerous? Civilian Augmentees, the Law of Armed Conict, and the Search for A More Effective Test for Permissible Civilian Battleeld Functions (2008) 2 J Natl Security L & Policy 257, 26970. This aspect of Corns argument is limited to those contractors who are accompanying the armed forces and would therefore benet from POW status. It does not imply that those who are not authorized to accompany may directly participate in hostilities.

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direct participation in hostilities must not be confused with a more general participation in the war effort.404 The ICRC has produced an Interpretive Guidance document to assist states in determining what kinds of acts constitute direct participation in hostilities.405 As we noted above, in order for a person to be directly participating in hostilities, their act must have a belligerent nexus to the conict.406 A belligerent nexus means that an act must be specically designed to [inict harm] in support of a party to an armed conict and to the detriment of another.407 Activities of PMSCs such as leading the armed forces of a state in military operations, without being a member of those forces, clearly constitute direct participation in hostilities. However, even with the benet of the guidelines, one of the key roles of PMSCs may remain a matter of controversy: acting as security guards in unstable or hostile environments. There are several ways of interpreting that activity. First, some argue that PMSCs that are tasked with guarding military objectives, including military bases (force protection) and convoys of food, goods and non-medical supplies for the military, may be viewed as directly participating in hostilities merely by the act of guarding such objectives.408 According to this theory, PMSCs who are guarding objects that are military in nature, extending perhaps to other military objectives as well, may be lawfully directly targeted by opposing armed groups. While this interpretation may seem satisfactory from the point of view of ensuring the equality of belligerents, it should raise red ags regarding an extensive use of civilians by states to directly participate in hostilities as undermining the principle of distinction. In non-international armed conicts, according to the ICRCs Interpretive Guidance, persons with a continuous combat function may be considered as regular participants in combat or members of armed groups. Guarding objects would seem to be one step removed from a continuous combat function but that may depend on the circumstances.
404

405

406 408

Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: ICRC, 1987), p. 619 (Commentary to Art. 51 AP I). This is the result of a long process with states and experts. See the reports from the process of developing the Interpretive Guidance from 20036 (at www.icrc.org) and ICRC, Interpretive Guidance. 407 ICRC, Interpretive Guidance, pp. 46, 5864. Ibid., p. 58. Michael Schmitt, Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees (2005) 5 Chicago J Intl L 511546, 538.

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2.1.1.iii Organization In denitions of who is a combatant or ghter, IHL places great weight on the existence of an organized armed group. Integration within an organized group is an essential characteristic of a combatant or ghter in both international and non-international armed conicts because it implies that a person is subject to the principal IHL enforcement mechanism the superior/subordinate relationship and the obligation to obey orders.409 This is how, in a situation as dangerous and chaotic as armed conict, individuals conduct is monitored and checked; in regular armed forces, superior ofcers are authorized to use force to keep subordinates in line. Armed forces punish those who do not follow orders. The difculty of monitoring the actions of armed individuals working for PMSCs is thus not merely an obstacle to be overcome in terms of regulation, as it is often construed, but is symptomatic of a larger issue. Failure to follow orders and operating beyond government authorization may have played a role in the massacre of civilians in Nisoor Square in Baghdad in September 2007. According to the guilty plea of one contractor involved in the incident, the convoy had not been authorized to depart from the International Zone and, having done so, had been ordered to return to that Zone. The team acted in contravention of that order under the command of its shift leader.410 Such agrant disregard for superior orders carries clear and signicant punishment in regular armed forces. The implementation of IHL depends upon it. Putting heavily armed individuals into a situation where they may be involved in conducting hostilities without these crucial checks and direct lines of monitoring and responsibility runs against the grain in ensuring respect for IHL, as required by Article 1 common to all four Geneva Conventions. 2.1.1.iv Conclusion on conduct of hostilities Some interpret Grotius as arguing that the state monopoly on the use of force was an essential condition for limited warfare.411 Although some political scientists point to increasingly privatized violence and the proliferation of the various state and non-state actors akin to that existing prior to the Peace of
409 410

411

See Art. 43 AP I, Art. 1 AP II; Corn, Unarmed but How Dangerous?, pp. 2767. US v. Jeremy P Ridgeway, Factual Proffer in Support of Guilty Plea, US District Court, DC, 18 November 2008, para. 7. One contractor continued to re indiscriminately and only stopped when a fellow contractor pointed his weapon at his head and ordered him to stop. S. Oeter, Methods and Means of Combat in D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conicts (Oxford University Press, 1995), p. 105.

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Westphalia as a form of neo-medievalism,412 it would be too categorical to suggest that the principle of limited war in and of itself today entirely prohibits states from using PMSCs in roles in which they may need to use force. That being said, as stated at the outset of this section, many, including some PMSCs, argue that the conduct of offensive military operations should not be contracted to the private sector.413 The difculty is that even force used in defence may lead to PMSCs conducting hostilities. This analysis shows that while IHL does not expressly forbid the direct participation in hostilities by individual civilians, widespread use by states of civilians in roles likely to entail direct participation in hostilities would seem to be at variance with their obligation to ensure the respect of IHL. Finally, in general, it would appear to be less clear in non-international armed conicts whether there is an implicit limit on states for the use of PMSCs. In non-international armed conicts, there is no loss of POW protection possible because there is no POW status. Nevertheless, since in many respects the practical results in terms of ability to comply with the law on the conduct of hostilities would be the same, we submit that a similar implied limitation exists for the use of PMSCs in noninternational armed conicts as in international armed conicts. 2.1.2 Judicial/tribunal-type decision making Certain tasks in IHL require a party to a conict to engage in judicial or quasi-judicial decision-making. For example, in order to determine whether a person may be interned for imperative reasons of security, the individual in question must have the benet of an individualized administrative procedure, with the possibility of appeal, and a regular review of the need for ongoing internment.414 According to Article 78 of Convention IV, the internment of civilians in occupied territory must be justied by the imperative security needs of the party interning them. It is thus only the state party that is capable of making such a determination based on all of the information available to it, and a state may not contract a PMSC to perform such judicial or quasi-judicial functions. US outsourcing policy is commensurate with this limitation on its face;415 however, PMSCs
412

413 415

See D. Bederman, World Law Transcendant (2005) 54 Emory LJ 53, 68, dening neomedievalism. 414 See also de Nevers, Private Security Companies, p. 178. Art. 78 GC IV. Both the US Ofce of Management and Budget Directive 921 (1992) (dening inherently governmental functions) and the US Statement of the Comptroller General and

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have allegedly been used to screen individuals brought to detention facilities in Iraq to determine whether they should be incarcerated. Any administrative punishments to which detained persons may be subject for infractions committed while interned must also be decided by a state actor, and the black-letter rules of Geneva Convention IV stipulate that only a member of the armed forces or government representative may order such punishment.416 Likewise, when in doubt as to whether a person who has participated in hostilities has the right to POW status, a state is obliged to treat that person as a POW until their status is determined by a competent tribunal.417 2.1.3 Maintenance of law and order and public safety In situations of occupation, a party to a conict may be in a position to repeal or introduce legislation as part of its obligation to restore, as far as possible, public order and safety, as set down in Article 43 of the Hague Regulations and recognized as customary international law. The exercise of legislative powers is limited but it is in large part based on the perceived need of the occupying power for legal measures to preserve its own security as well as the security of the population in the occupied territory.418 The determination as to the nature of a required law or provision is an assessment that may only be made by the occupying power state. The outsourcing of such a level of discretionary power would constitute an abrogation of the states fundamental role. A private company therefore may not issue legislative orders, commands or regulations in an occupied territory. Aside from legislating criminal or other laws, the maintenance of public order entails a policing function. In peacetime, some states have permitted private companies to carry out elements of policing (mostly for private clients), such as patrolling and guarding, up to the point of defending property and individuals and making citizens arrests. Here, if an occupying power were to contract private police in a situation of occupation, Articles 29 and 47 of Convention IV would apply such that
Chair of the Commercial Activities Panel on Improving the Sourcing Decisions of the Federal Government (27 September 2002), p. 21 state that judicial functions are inherently governmental or must be performed by government workers. 417 Art. 96 GC III and Art. 123 GC IV. Art. 5(2) GC III. M. Sassli, Legislation and Maintenance of Public Order and Civil Life by Occupying Powers (2005) 16 EJIL 661.

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the actions of any such private police would be considered actions of agents of the occupying power; furthermore, any laws introduced by the occupying power to allow the use of private police in a domestic law enforcement function may not affect the rights of protected persons under the conventions. As such, laws or regulations granting immunity to PMSCs,419 without ensuring that some other mechanism of judicial or state control over their actions exists, may contravene the spirit of the rules. In addition, the introduction of laws that allow PMSCs to guard illegal settlements in an occupied territory, or the extension of national laws into an occupied territory for the same purpose, contributes to a violation of Article 49(6) of Convention IV and is prohibited.420 The maintenance of public order in conict areas may, in the view of the occupying power, require the establishment of checkpoints. Is the outsourcing of the stafng of such checkpoints compatible with the IHL obligations of an occupying power? On one hand, one may argue that the privatization of checkpoints designed to reduce friction between the inhabitants of the occupied territory and the occupying forces421 is a measure to enhance the overall security in the occupied territory. On the other hand, if, again, such measures are designed to attenuate or weaken the responsibility of the occupying power for the treatment of protected persons, stafng checkpoints with PMSCs runs counter to the obligation to carry out ones obligations so as to ensure the respect of IHL. 2.1.4 Making agreements with the other parties to the conict Certain articles of the Geneva Conventions and their Additional Protocols allow for the conclusion of agreements with the other party to the conict, such as, for example, the establishment of safe zones and on the removal of vulnerable persons from dangerous areas.422 Others allow for the conclusion of special marking systems for POW camps423 or for agreements on conditions for sending individual and collective relief parcels to
419 420

421

422

Such as, for example, the infamous Coalition Provisional Authority Order 17. HPCR, Private Security Companies in the Occupied Palestinian Territory (OPT): An International Humanitarian Law Perspective (March 2008), pp. 56. Apparently a 2005 law on PMSCs (Israeli Authority for Maintaining Public Safety Law) applies in East Jerusalem. As Eilat Maoz, The Privatization of the Checkpoints and the Late Occupation, http:// whoprots.org/Newsletter.php?nlid=29, indicates as forming part of the arguments of the Israeli government for privatization. 423 See e.g. Arts. 14(2) and 17 GC IV. Art. 23 GC III.

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POWs.424 There are a number of other possible subjects for special agreements, and there may also be agreements to increase protection provided by the conventions.425 The conclusion of such agreements may only be done by state actors having the capacity to bind the party in question through such acts.426 PMSCs may therefore not conclude such agreements.427

2.2 Limits resulting from the rules on responsibility in IHL Certain provisions in the Geneva Conventions constitute rules on the international responsibility of states in IHL. For example, Article 12(1) of GC III states:
Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them.

Likewise, Article 29 GC IV (on Civilians) states:


The Party to the conict in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility which may be incurred.

One may enquire whether the use of the term responsible in the conventions in these provisions means that it must be the state party itself that undertakes all positive and negative obligations set down in the conventions, or whether it is a simple iteration of state responsibility. An analysis of the plain wording of the provisions, consideration of their context and reference to the travaux prparatoires428 suggests that these provisions do not constitute a general prohibition for a High Contracting
424 426 425 Art. 72 GC III. Arts. 6/6/6/7 of the four Geneva Conventions, respectively. Of course, there is an exception in that non-state armed groups may make special agreements under Art. 3 common to the Geneva Conventions if they are parties to the conict. Some PMSCs have allegedly made agreements with the Taliban in Afghanistan, leading to a situation which caused considerable vexation for NATO member states. In broad terms, the Taliban agreed not to attack PMSC-guarded convoys in a certain region against an alleged payment. This arrangement meant that the PMSCs were funding the enemy forces and also led the forces who took over operations in that area and who were unaware of the scheme to be caught completely off guard when they were attacked, having understood the region to be relatively calm. Final Record of the Diplomatic Conference of Geneva of 1949, vol. 2, section A (Berne, 1949), pp. 71314.

427

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Party from delegating or outsourcing the carrying out of their obligations with respect to protected persons. First, the provisions simply state that the state party remains responsible for the treatment of persons in its hands, regardless of whether any individuals have incurred individual responsibility for acts or omissions on their part. A straightforward reading of the provisions suggests that they simply reiterate that state responsibility ows from the acts of the state agents (or anyone to whom the state has transferred the carrying out of obligations toward protected persons). At the time of the adoption of the Geneva Conventions, the law on state responsibility was somewhat unsettled in this regard.429 Indeed, the provisions do not explicitly prohibit a state from outsourcing its obligations regarding the treatment of protected persons in any general way. A contextual reading of the provisions seems to conrm this view; however, a wider lens may suggest otherwise. Conrming the view, certain provisions of the conventions specically state that some obligations, responsibilities or tasks must be carried out by a regular ofcer of the High Contracting Partys armed forces or a regular government employee.430 A contrario, provisions that obligate a state to undertake a particular course of action or provide goods or care to protected persons, but that do not specify that a state actor must undertake such tasks, allow a state to charge whoever it wishes with that task. Articles 12 and 29 of Conventions III and IV, respectively, may be read as mere conrmation that a state remains responsible, no matter to whom it has delegated or outsourced the obligation. This contextual reading suggests that unless otherwise specied, the obligations in the conventions merely prescribe what must be done, but do not prescribe how it must be done or who must do it. Thus, unless there are other reasons why IHL implies that a state actor must undertake a given role or activity (such as the conduct of hostilities, discussed above), a state may outsource its obligations to private actors. Moreover, the fact that the conventions allow for independent organizations to assist in providing aid etc. supports the interpretation that action is not limited to state action. On the other hand, one may read the context of the conventions in another way. In particular, Article 12 of GC III prohibits a state from transferring prisoners of war (POWs) to any state that is not a party to
429

430

James Crawford, The International Law Commissions Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002), pp. 14. Discussed above.

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Geneva Convention III, and, thus, to any party that is not strictly bound by its black-letter rules. This is bolstered by the fact that POW camps must be administered by a person in the regular armed forces of the High Contracting Party. As such, the state may not put POWs into a situation in which they are in the hands of someone who is not bound by the rules of the conventions and is itself responsible for carrying out all of the obligations therein.431 Put another way, the fact that the state remains responsible for the treatment of protected persons in its hands must mean that it cannot hand those persons over to individuals such that the chain of state responsibility would be broken. This could augur against outsourcing if a state were then to deny responsibility based on a broken connection in the chain of agency. The commentaries to the Geneva Conventions and the travaux prparatoires support the idea that a state is not prohibited from outsourcing certain of its obligations with respect to protected persons, but some ambiguity nonetheless remains. The commentaries emphasize the dual individual and state responsibility for any violation of the conventions as the principle signicance of the articles in question.432 With regard to the treatment of protected civilians, the extension of state responsibility for acts and omissions of its agents in carrying out obligations under Convention IV represented a conscious effort to extend state responsibility to the acts of individuals beyond merely those comprising its armed forces.433 The commentaries state, The term agent must be understood as embracing everyone who is in the service of a Contracting Party, no matter in what way or in what capacity.434 However, the commentaries then proceed to state that the word agent embodies an essential reservation; for the word agent limits the scope of the provision to those persons alone who owe allegiance to the Power concerned.435 The commentaries point out that the Diplomatic Conference rejected the addition of the words or on any other persons at the end of the article,436 which may support a similar interpretation as that above for Convention III: that a party may not entrust protected persons to entities that are not bound by the black-letter rules of the conventions. On the

431

432

433 435

This was recently conrmed by the ICTY Appeals Chamber: see Prosecutor v. Mrki and ljivananin (Appeals Chamber Judgment) IT-9513/1-A (5 May 2009), paras. 715. Commentary to GCs III and IV, Arts. 12 and 29 respectively: Pictet, Commentary GC III, pp. 12930 and Pictet, Commentary GC IV, pp. 20910. 434 Commentary to Art. 29 GC IV in Pictet, Commentary GC IV, p. 211. Ibid. 436 Ibid., pp. 21112. Ibid., p. 212.

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other hand, it may simply reect that states wished to limit their responsibility and not be responsible for the actions of all private persons with respect to protected persons. In conclusion, the state has the ultimate responsibility to see to it that the obligations are fullled with regard to these articles, but the actor involved is relatively immaterial to satisfying most obligations, unless specied.

Conclusion

IHL imposes both explicit and implicit limitations on the tasks for which states may use private military and security companies. That being said, it does not prohibit outright the presence or use of PMSCs in situations of armed conict. Some of the limitations outlined above have been explicitly recognized in the Montreux Document in some form (for instance, the prohibition on PMSCs being given the command of a POW camp), but others, such as the power to discipline detained persons and the power to requisition goods, for example, are not explicitly stated therein. That document must therefore be taken as an incomplete (albeit welcome) statement of the law relating to and governing the use of PMSCs in situations of armed conict. In particular, the complex notion of direct participation in hostilities and the conduct of hostilities more generally will be explored in more detail in Chapter 4 below.

The limits imposed by IHRL

International human rights law (IHRL) applies in times of peace and armed conict and it has many rules that are highly relevant to the types of activities in which PMSCs are engaged. The following section explores IHRL from the perspective of whether its norms provide implicit or explicit limits on the tasks which states may contract or allow PMSCs to undertake.

The legality of delegating law enforcement under IHRL

Law enforcement is generally understood to comprise the actions a state may take to ensure compliance with its laws, in particular with regard to public order. As such, it involves the exercise of the powers of arrest and detention in addition to the powers of criminal investigation and actions to prevent a breach of the law. When it comes to the privatization of such powers, from a domestic point of view, what may be of interest is

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whether delegation of such powers is constitutionally permitted.437 Here, however, we are interested in whether IHRL imposes limitations on the ability of states to delegate powers to or use private law enforcement ofcers and institutions in particular, private police, private border guards and private prisons.438 What we afrm here presupposes that IHRL applies in times of peace and in times of armed conict.439 Prior to discussing the legal framework in more detail, it is helpful to review the private security and prison industries. There is a vast and rapidly growing industry of private police that is prevalent in but by no means limited to the Western world.440 Around the globe, private security guards stand outside banks, jewellery shops, other businesses and government ofces and protect cash transfer trucks. They patrol shopping malls, university campuses and amusement parks, and may also be contracted by local business groups or major property management companies to patrol and carry out surveillance in designated zones in cities.441 They wear uniforms bearing a strong resemblance to police uniforms. Some states allow them to carry weapons;442 others do not.443 For the most part, private security guards are hired by private companies or private individuals to protect private property or individuals, rather than exercising law enforcement powers on behalf of states. For this reason, some may
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See e.g. Paul Verkuil, Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What We Can Do about It (Cambridge University Press, 2007). In this analysis, we acknowledge but will not address some of the more theoretical questions as to whether allowing a proliferation of privatized security means a state is abdicating its responsibility to provide security for all, including those who cannot afford to pay for it, thereby violating an emerging right to human security. The concept of human security that has emerged in recent years includes the entitlement to freedom from fear. See World Summit Outcome, UNGA Res. 60/1, 2005, UN Doc. A/Res/60/1, para. 143, Human Security. The extraterritorial applicability of human rights law in times of armed conict is discussed in Ch. 4, section D below. Most estimates for states are that the number of private security guards is two to three times the number of public police ofcers in that state. E. Joh, The Paradox of Private Policing (2004) 95 J Crim L and Criminology 49131, describes a company contracted to provide, inter alia, policing services within six city blocks in a large US city (pp. 749). See also D. Sklansky, The Private Police (1999) 46 UCLA L Rev 1165287. In the United States and South Africa, for example, they are permitted to be licensed to carry guns. Democratic Republic of Congo and Kenya both prohibit them from being licensed to carry arms. For DRC, de Goede, Public and Private Security, p. 50; for Kenya, K. Mkutu and K. Sabala, Private Security Companies in Kenya and Dilemmas for Security (2007) 25 J Contemporary African Studies 391416, 394.

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question whether the mere fact that a state licenses or permits the existence of private security guards represents an exercise of state authority. Before addressing that question in more detail (below), it is important to point out that some states also hire private security guards to assist public police forces for specic activities such as transportation of cash,444 to protect the public police force itself and to provide security at major events.445 In Canada, public police forces contract private security companies to carry out mundane policing tasks in their stead,446 and in Mexico, a municipal government established a private auxiliary police to support its own ineffective public police force.447 In addition, some states allow their own public police to work as private security ofcers in their free time448 or even subcontract their public agents to private security companies.449 In most cases, private security guards conduct their business using no more than the powers of ordinary citizens, including the power to make a citizens arrest and the power to use force in self-defence or in defence of others.450 Some states criminal laws extend the right to use force in selfdefence to the defence of property, which private security guards exploit in their daily work.451 In some states, however, in certain circumstances and even when contracted by private entities, private security guards may be deputized by local authorities such that they enjoy greater powers than ordinary citizens, powers more akin to regular police

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See Case C-465/05, Re Private Security Guards: Commission of the European Communities v. Italy [2008] 2 CMLR 3, para. 37. The latter two uses occur in South Africa. See R. Taljaard, Private and Public Security in South Africa in S. Gumedze (ed.), The Private Security Sector in Africa Country Series, Monograph 146 (Institute for Security Studies, 2008). G. Rigakos and D. Greener, Bubbles of Governance: Private Policing and the Law in Canada (2000) 15 Canadian J L & Society 145, 146. A. P. Kontos, Private Security Guards: Privatized Force and State Responsibility under International Human Rights Law (2004) 4 Non-state Actors & Intl L 199238, 204. Many states in the United States allow this practice. DRC has formal and informal mechanisms for subcontracting public police to PSCs. See de Goede, Private and Public Security, pp. 4952. See Case C-465/05, Re Private Security Guards: Commission of the European Communities v. Italy [2008] 2 CMLR 3, para. 42; for US case law, see Sklansky, The Private Police, pp. 123662 and passim. See e.g. Lemon v. State, 868 N.E.2d 1190 (Ind. Ct. Appeal 2007). In Canada, the federal government has recently introduced a bill that would arguably extend the scope of action that individuals are permitted to take in self-defence and making a citizens arrest. See Bill C-26, Citizens Arrest and Self-defence Act (First Reading 22 November 2011), 1st Sess., 41st Parliament, 60 Elizabeth II, 2011.

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powers.452 Some may frequently use their powers of arrest; others, even if they do not arrest individuals, often carry out brief detentions.453 Many states, but not all, have legislation regulating domestic private security providers.454 A second arm of the private security industry operates in privatized prisons. A number of states have privatized prisons to a greater or lesser extent. While the outsourcing of the operation of prisons and incarceration of individuals seems to be a clear delegation of state authority, the degree of coercive powers granted to private prison operators varies signicantly. On one end of the scale, the United States, Australia and the UK have a number of prisons that are wholly privatized, including not only maintenance and catering services, but also custodial care, implying the use of coercive force against prisoners.455 In the United States, managers and employees in some privatized prisons have the authority to promulgate the prison rules, to judge whether they have been violated by an inmates conduct and to determine and administer punishment for such violations.456 The UK law specically stipulates that
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Sklansky, The Private Police, pp. 11834. But note that where public ofcers are moonlighting as private security guards, the scope of their powers may be somewhat blurred, especially since some states allow them to wear their public police uniforms and drive police cars when on private duty. Sklansky, ibid., p. 1268. See also Joh, The Paradox of Private Policing, pp. 646. Sklansky, The Private Police, pp. 117980. See e.g. the collection of national legislation on private security regulation at http://www. privatesecurityregulation.net/, a website maintained by the Geneva Centre for the Democratic Control of Armed Forces (DCAF). See also the revised draft resolution proposed by the United Arab Emirates, Civilian private security services: their role, oversight and contribution to crime prevention and community safety, UN Doc. E/CN.15/2009/L.4/Rev.2, preambular para. 9: Noting that, while many States have established mechanisms to regulate civilian private security, the level of government oversight of those activities nevertheless varies widely internationally. The reports compiled in Christine Bakker and Mirko Sossai (eds.), Multilevel Regulation of Military and Security Contractors (Oxford: Hart Publishing, 2012) also provide extensive discussion and analysis of national legislation. For the UK legislation relating to contracting out prisons, see UK, Criminal Justice Act, 1991, ss. 848A. See also UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Possible Utility, Scope and Structure of a Special Study on the Issue of Privatization of Prisons, Outline prepared by Claire Palley pursuant to SubCommission decision 1992/107, UN Doc. E/CN.4/Sub.2/1993/21, 25 June 1993, para. 35 (Palley Report). One Canadian province tested a privatized prison for a period of ve years, but determined that although costs were lower, the overall results were less satisfactory. While other aspects of custodial care remain in the hands of the private sector, prisons are not. See Rigakos and Greener, Bubbles of Governance. Palley Report, para. 35. In the UK, a state agent, not the private director, was responsible for investigating and prosecuting breaches of the prison rules (which could lead to an

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custodial ofcers in private prisons have the power to use reasonable force where necessary to prevent a prisoner from escaping, to ensure good order and discipline, and to prevent the commission of unlawful acts.457 In addition, in 2007, prisoner custody ofcer[s] employed in private prisons were granted the power to detain individuals, including persons coming to visit the prison.458 As such, UK legislation specically confers powers of arrest and detention on a specic class of employees in private prisons, but it should be noted that prison custody ofcers must be in possession of a valid certicate that certies that he has been approved by the Secretary of State for the purpose of performing escort functions or custodial duties or both and that he is authorised to perform them.459 As such, although not employed by the state, such ofcers have been specically granted the authority to exercise public powers. A private prison that was built in Israel remains empty and unused following a High Court decision nding private prisons to be unconstitutional.460 The details of the contract are however not clear and were not made entirely public.461 In the middle of the spectrum, states such as France, Japan and Brazil operate partially privatized prisons, in which directors, registrars and guards are state agents but where non-custodial services are performed by private companies.462 Finally, other states have legislation proscribing any privatization of prison services whatsoever.463 Other elements of the detention system have also been privatized in some
extended sentence) but this was found wanting in terms of judicial independence by the ECtHR. See ECtHR, Whiteld v. UK (App. nos. 46387/99, 48906/99, 57419/00) Judgment (12 April 2005). UK, Criminal Justice Act, 1991, s. 86. UK, Criminal Justice Act, 1991, s. 86A. Section 86(A) was inserted by Offender Management Act, 2007 (c. 21), ss. 17(1), 41(1); S.I. 2007/3001, Art. 2(1)(b). UK, Criminal Justice Act, 1991, s. 89. The case was before the courts for four years; as of 22 March 2009, the Court issued an injunction against the beginning of operation of the prison. The law allowing private prisons was overturned in November 2009. See D. Isenberg, High Court Prohibits Privately Run Prison, Jerusalem Post, 20 November 2009 (online edition, www.jpost. com/servlet/Satellite?cid=1258624598788&pagename=JPArticle%2FShowFull). See report by Association for Civil Rights in Israel, The State of Human Rights in Israel and the Occupied Territories, 2005 (2005), pp. 301. See Palley Report, para. 24. France reserves for state agents lexercice de lintgralit des fonctions rgaliennes. See also Public Services International Research Unit, Prison Privatisation Report International, no. 74, October 2006, www.psiru.org/justice/ PPRI74W.htm. New Zealand but this is currently under debate. Sudan also opposes privatized prisons. See Palley Report, para. 5. Dominican Republic also opposes privatized prisons (PSIRU October 2006 report (no. 74)).

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states, such as the transportation (escort) of prisoners, which necessarily also entails guarding against escape,464 and electronic surveillance, among other things.

1.1 Policing and detention There have been a number of ways in which human rights bodies have argued that IHRL places limitations on states ability to delegate law enforcement powers to private companies (or individuals). The rst argument is that there is an obligation on states to maintain their monopoly on the use of coercive force and that a delegation of the right to use force to private actors subverts the rule of law. In an early draft of the Guidelines for the Prevention of Crime465 the text proposed by the UN Commission on Crime Prevention and Criminal Justice included the following paragraph:
The limits within which the private security sector may act should be dened by law. The private security sector, in accordance with human rights standards, should not exercise any function which, by its nature, is incompatible with the rule of law and the principle that the use of force is reserved for the state.

Although in their comments to this draft no states objected to this paragraph, the paragraph was not included in the nal draft of the document.466 There is no elaboration on the precise quality of the principle that the use of force is reserved for the state. The notion that the private use of force in the public interest is incompatible with the rule of law is wrapped up in the notion of the social contract the public accepts that the state engage in uses of force on its behalf in so far as such use of force is solely for protection of the public. By extension, the public may seek to control state uses of that power through courts, public enquiries or other democratic means.467 The objectionable aspect of private security is thus not grounded in some belief that allowing any other entity to play a role in maintaining order is
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Recently, a prisoner transported several hours in high temperatures in the back of an unventilated van operated by a private security company in Australia died of heatstroke. See Coroners Report (below, n. 473). The initial document as proposed was called the Elements of responsible Crime Prevention: Standards and Norms. For the Guidelines, see UN Doc. E/Res/2002/13, 24 July 2002, and Annex; for the Elements, see UN Doc. E/Res/1997/33, 21 July 1997, para. 11. See Kontos, Private security guards, p. 207 and n. 37 for a bureaucratic history of the text. While actions in criminal law or private law may be available against private security companies as a kind of check on their use of power, they do not engage the state.

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somehow an abdication of a states responsibilities, but rather reects the notion that allowing private parties to exercise the force or powers of coercion the public has vested in the state, without granting the public equivalent levers of control over the exercise of that force as exist in the public domain, does not ensure that state-sanctioned force is subject to the rule of law. These arguments may be translated into human rights language supported by specic treaty articles,468 but to do so is unnecessary given that the rule of law underpins and is at the heart of IHRL. A second line of argument put forward by members of human rights bodies is that prisons and security should not be privatized because delegating such functions to non-state bodies would weaken human rights protection. In evaluating the periodic reports of states that have privatized prisons, members of the UN Human Rights Committee (HRC) have expressed scepticism regarding the compatibility of the practice with the human rights obligations of states during discussion of the reports.469 At the same time, efforts within the UN to study the privatization of prisons, potentially with a view to some form of condemnation in human rights terms, have been systematically quashed.470 When it came to deciding a case regarding a violation of Articles 7, 10 and 14 of the International Covenant on Civil and Political Rights (ICCPR) alleged to have occurred in a privatized prison, the HRC took a pragmatic approach. In the words of the committee:
the contracting out to the private commercial sector of core State activities which involve the use of force and the detention of persons does not absolve a State party of its obligations under the Covenant.471

The state party in question did not argue that the fact that the prison was privatized affected the admissibility of the complaint.472 This nding was
468 469

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For one example, see Palley Report, paras. 667. HRC, Summary Record of 1434th Meeting: United Kingdom, 27 November 1995, UN Doc. CCPR/C/SR.1434; HRC, Summary Record of 1745th Meeting: Costa Rica, 4 December 2000, UN Doc. CCPR/C/SR.1745; HRC, Summary Record of the First Part (Public) of the 2016th Meeting: New Zealand, 15 July 2002, UN Doc. CCPR/C/SR.2016; HRC, Concluding Observations: New Zealand, 7 August 2002, UN Doc. CCPR/CO/75/ NZL, para. 13. See Kontos, Private security guards, pp. 2056. This may suggest that while states accept the effects of human rights law within their sovereign sphere in terms of treatment of individuals, they do not accept that it may dictate more economic policy decisions. HRC, Cabal and Pasini v. Australia, Comm. no. 1020/2001, 7 August 2003, UN Doc. CCPR/C/78/D/1020/2001, para. 7.2. In fact, Australia requested the HRC to consider as part of its submissions, a response from the private company administering the prison regarding its policy on treatment of prisoners with HIV. Ibid., para. 4.22. Interestingly, in a sense, through that submission

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subsequently applied in Australia by the coroner during an investigation into a death in custody of a private security company. The coroner likewise found that there had been a breach of the ICCPR through the acts of the private company, in addition to the states failure to ensure proper training etc.473 The committees statement nevertheless serves to head off any such future arguments by deciding the question as a kind of obiter dicta. The HRC thus said nothing as to whether such functions may be privatized. Instead, it argues that even if they are, the state in question remains bound by its obligations. In terms of clarifying precisely what is a core State activity, the committee specied only those involving the use of force and the detention of persons. This brings us to the crux of the issue: how do we dene core state activities that draw the protection of IHRL in these areas? At rst glance, there seems to be a crucial difference between private security provision and the operation of private prisons: while incarceration is today clearly considered to be an exercise of state authority, there is uncertainty and disagreement as to whether the provision of private security amounts to an exercise of state authority.474 The distinction in part lies in the fact that private detention facilities are necessarily contracted by states as only states have the lawful authority to incarcerate individuals, whereas private security guards may be contracted by private individuals. On the other hand, many states with semi-privatized prisons do not allow non-state agents to perform custodial services involving any acts that might involve the use of force against prisoners or adjudication of rule violations, such that objections to putting the use of force in the hands of the private sector do not apply. Thus, in order to determine whether IHRL places limitations on a states ability to privatize either function, it is important to try to dene precisely which aspects of these vast and varied industries fall within the realm of core state functions. For private security companies, the question is whether it is the hiring by the state that makes their activities an act of state authority, or whether it is the fact that they are delegated greater powers in terms of
Australia allowed the private company to make arguments regarding prison policy on its behalf, in that the response made claims regarding best practice within correctional institutions. Western Australia, Record of Investigation into Death Ref 9/09 (June 2009), pp. 12930. Kontos, Private security guards, p. 202. Kontos notes that there is support for treating the conduct of private security guards with no more powers than those of the ordinary citizen as State conduct when engaging in the use of force (citizens arrest and control over private property) as an occupational activity.

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the use of force and detention than ordinary civilians possess that means they perform a core state function. In other words, is a security guard hired by the government to stand outside government ofces a state agent merely because the government is his client, or must there be more to his role than that? For prisons, the core state functions would seem to be limited to custodial aspects of detention, including setting prison rules, violations and ordering punishment (including extension of sentence). However, it should be recalled that non-custodial aspects of detention may violate other rights under IHRL.475 As such, the fact that the performance of a function carries a risk of a violation of human rights does not necessarily entail that that function must be classied as a core state function. Finally, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment stipulates that Arrest, detention or imprisonment shall only be carried out strictly in accordance with the provisions of the law and by competent ofcials or persons authorized for that purpose.476 This suggests that these powers form part of core state functions. In a decision that found part of Italys law on private security companies to contravene European competition law, the European Court of Justice held that merely making a contribution to the maintenance of public security does not constitute exercise of ofcial authority.477 Even the fact that security companies were contracted by the state to keep watch over certain public places, without more, was not sufcient, in the eyes of the European Court, to conclude that such security guards were exercising state authority.478 The lack of powers of coercion of security guards under Italian law beyond those accruing to members of the general public meant that guards hired by the government to patrol public places could not be assimilated to the exercise of public authority.479 In reaching its conclusion, the Court also emphasized the fact that

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E.g. inhuman treatment could arise through provision of inedible or rotten food (as has been alleged to have been provided by a private company running a US prison). Principle 2, Body of Principles, UN Doc. (UNGA) A/Res. /43/173, 9 December 1988. Case C-465/05, Re Private Security Guards: Commission of the European Communities v. Italy [2008] 2 CMLR 3, at para. 38, reafrming its holdings in C-114/97, EC Commission v. Spain [1999] 2 CMLR 701 and C-355/98 EC Commission v. Belgium [2000] 2 CMLR 357. It should be pointed out that this nding is important for European competition law. One may wonder, however, whether a human rights court may have come to a different conclusion. C-465/05, Re Private Security Guards: EC Commission v. Italy, para. 37. Ibid., para. 40.

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security guards were not granted powers of arrest any more extensive than those of any citizen.480 US courts seem to follow a similar line of reasoning when determining whether the acts of private security guards working for private clients constitute state action such that they are bound by US constitutional law.481 Their decisions often seem to turn on whether a private security guard has been deputized so as to possess greater powers to detain and use force than private individuals, but the US Supreme Court has rejected this as a bright line test for state action.482 One author has argued that if private security guards use even only the force available to ordinary citizens, but rely on it in their every day work, their acts should be considered state acts.483 If one takes the view that the use of force is uniquely the preserve of states, one may conclude that any delegation by states to private security companies or private prison guards to use force beyond that which is permitted by laws on self-defence is a delegation of state authority and, thus, the actions of those individuals must be state action for the purposes of IHRL.484 However, when it comes to ensuring that human rights are protected, given the effect their actions may have on preserving fair trial rights, the exclusion of the collection of evidence from the activities constituting state action poses problems. In the United States, for example, evidence collected by private security guards is not subject to exclusionary rules (for example, failure to read Miranda rights or improper search or seizure), unlike the way in which evidence collected by the public police would be, on the grounds of state

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483 484

Ibid., para. 42. These determinations were made in the context of competition law, which presents an interesting dichotomy. In competition law, if a business is exercising elements of state authority, EU states are permitted by law to introduce more restrictive laws on that industry. The ECJ thus seems to have a higher threshold of what may be state authority than what the ECtHR (for example) might have with regard to the same industry. Sklansky, The Private Police, pp. 122975. Decisions cited in Sklansky, The Private Police, esp. p. 1239, nn. 40911. In the United States, the debate on the use of force is made more complicated by the fact that public police ofcers often work as private security guards in their spare time, such that the force they use for private clients is sometimes categorized as having been used by a public ofcer, even though they were not on duty at the time. Kontos, Private security guards, p. 202. Even concerning self-defence, it may be argued that it constitutes a criminal law defence and not an ex ante authorization of certain acts. If the state therefore authorizes certain persons and not others to exercise self-defence and defence of others, those persons may be considered to be engaged in state action.

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authority.485 Excluding improperly obtained evidence is an important mechanism to ensure that public ofcers respect human rights. Furthermore, unless it is framed more broadly as powers of coercion, such a formulation would not encompass powers to detain. One could also argue that the licensing of security companies, in the knowledge that they intend to rely on their power of citizens arrest and to use force in self-defence as a manner of doing business, is a quasi-delegation of state authority.486 This view may be supported by the fact that they are permitted to wear uniforms and rely on the resemblance their uniforms bear to those of the public police, such that the people they deal with are likely to believe they possess the coercive powers of public police. While this last view underlines some of the tricky questions and blurry lines in delimiting state authority, it probably goes too far. It is, therefore, not the nature of the client that determines whether state authority has been delegated and draws the application of IHRL, but the task itself (i.e. if it has been contracted by a state, the functions) and concomitant coercive powers. In addition, if contracted by private companies or individuals, the question whether additional powers to use force have been granted by the state will probably provide a dispositive answer. The history of policing in the United States and the UK shows that the act of policing has not always been viewed as an inherently governmental or public function,487 but the same can be said for the running of prisons.488 IHRL developed, however, at a time when states had a monopoly over these functions and when it was presumed that states would continue to exercise such functions. The concept of what is a core state activity and the activities that draw the application and protection of IHRL thus remains xed, even if post-modern states see t to allow private actors to carry out functions involving the use of force against their citizens, in their name or at their behest or acquiescence. In spite of the fact that these are core state activities, with the possible exception of making arrests,489 IHRL does not explicitly prohibit states to contract the private sector to carry them out, as long as, when and if it
485

486 487 488 489

See Joh, The Paradox of Private Policing, p. 103 and passim. However, in EC Commission v. Italy, para. 41, the ECJ relied on the fact that testimony of private security guards does not have the same value in Italian judicial proceedings to reach its conclusion that private security ofcers do not exercise powers of state authority. Kontos, Private security guards, p. 202. Sklansky, The Private Police, pp. 1193221. See Palley Report, paras. 22 and 28. Beyond citizens arrests, that is.

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does so, the rights continue to be protected in the same way as they would be if the state were performing such functions. The fact that the HRC will continue to hold complaints regarding privatized prisons admissible (and thus avoid more controversial aspects of the privatization debate), however, does not mean that privatization does not weaken the implementation of human rights obligations. For example, in many cases human rights are protected through the application of national constitutions, which do not apply to the private sector even when the state has contracted it to carry out such services in its place.490 It should be recalled that the HRC is a forum of last resort, and that implementation mechanisms on a national level may not be as straightforward as in the HRC. Moreover, the proliferation of such actors may affect the protection of other rights, such as the rules on exclusion of evidence needed to protect fair trial rights.491 While there is apparent discomfort with the policy of some states of allowing the private sector to wield the powers of the use of force and detention, IHRL does not explicitly prohibit states from delegating such powers to the private sector as long as human rights can continue to be protected, presumably according to the same standard, as they would be if the state were acting. This implies that the state would have to protect human rights and prevent, repress and repair violations as if state agents were acting. If such private actors are not consistently subject to the same laws that apply to the state under national laws, is the rights protection equivalent? Evidence suggests that the interposition of third-party contractors may lead to the denial of effective remedies when human rights are violated.492 While human rights protection should be the same concerning core state activities, whether carried out by state agents or private parties, some of the examples above illustrate the difculty in guaranteeing a truly identical level of protection. This tendency may be exacerbated by the lack of a universally agreed denition of core state activities. However, as human rights bodies do allow a margin of
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See e.g. Peoples v. CCA Detention Centers, 422 F 3d 1090 (10th Cir 2005), afrmed 449 F 3d 1097 (2006), in which the Court held that plaintiffs could not bring an action under constitutional law against private actors if another cause of action (e.g. in tort law) was available to them. See also Joh, Paradox of Private Policing, pp. 1034 on how Miranda rights etc. do not apply to private security guards. In Cabal and Pasini v. Australia, however, the record demonstrates that the complainants were able to take the case before the Australian Human Rights and Equal Opportunity Commission. Joh, The Paradox of Private Policing, pp. 601 and 96 (describing a court decision). Palley Report, paras. 7, 45, 667, 73.

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appreciation among states as to how rights are protected, and given the political sensitivity of asserting that states are obliged to carry out certain activities with their own agents, they are unlikely to take a hard-and-fast position on the legality of delegating such powers per se.

1.2 Administration of justice IHRL does not explicitly forbid the outsourcing of the administration of justice in terms of the judicial process, but it is implicitly prohibited. As a matter of principle, the administration of justice is traditionally considered as a core prerogative of the state which cannot be outsourced. It is one of the cornerstones of the rule of law. Furthermore, one of the key principles of fair trial is that adjudicating bodies must be independent of the executive of government and of the parties to a case.493 The rst hurdle thus arises in how such a privatized court could be established. A privatized court cannot be outsourced through a delegation of executive authority and also satisfy the fair trial requirements of independence, since independence from the executive of government is anathema to delegation of governing powers: rules on delegating government authority require supervision and control over the exercise of delegated powers. Moreover, this scenario implies the existence of courts based on executive orders or decision-making, which falls foul of the requirement of a separation of powers, another aspect of judicial independence. There are concerns that private security guards and investigators lead to a private administration of informal justice, since they may not seek to use the formal court system to punish alleged perpetrators of theft or trespass. Rather, they may enforce their own justice by, for example, nes, exclusion of trespassers from public private property, and summary ring of individuals accused of theft in the workplace.494 These actions remain within the private sphere, however, and although they may have a certain punitive quality, they are not tantamount to administration of justice. It may, however, be in a states interest to ensure that this kind of private justice does not occur. The fact that potential for a miscarriage of justice is amplied by privatization anywhere in the system is exemplied by the kickback scheme involving US judges, whose high incarceration rates for young people sent to a private prison were related to bonuses they received per prisoner from
493

494

Whiteld v. UK (App. nos. 46387/99, 48906/99, 57410/00, 57419/00) ECHR 12 April 2005. Joh, Paradox of Private Policing, pp. 11821.

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the private prison.495 The opportunity for corruption and abuses in justice system arise when part of the system is on a for-prot basis. *** To date, although no IHRL treaty explicitly proscribes the delegation of the coercive powers of arrest and detention, or even the administration of justice, to private actors, this issue remains highly controversial. States are loath to set down black-letter limits with regard to privatization. This may be why human rights treaty bodies appear unfazed by outsourcing and simply continue to insist on state responsibility and enforcement of rights protection in such cases. Even so, implicit limitations exist, and, at the very least, we cannot imagine a tribunal accepting privately administered justice no matter how one were to stretch the doctrine of equivalent protection of rights. This, and all that goes before, is underpinned by the obligation of states to act in good faith, to which we now turn.

D Good faith
That states must perform their obligations and exercise their rights in good faith is an uncontroversial and fundamental principle of international law. On the most basic level, the knowledge that the other state is acting in good faith enables states to interact and enter into agreements with one another.496 Good faith is especially important in a legal system lacking centralized enforcement mechanisms, leading some to argue that if the good faith of international actors cannot be counted on, the whole fabric of international law will collapse.497 In this section we will consider how the principle of good faith affects the ability of states to use PMSCs.

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496

497

See Ed Pilkington, International: Jailed for a MySpace Parody, the Student Who Exposed Americas Cash for Kids Scandal: Judges Deny Kickbacks for Imprisoning Youths: Slapping a Friend or Having Tantrum Led to Prison, The Guardian, 7 March 2009, p. 21. M. Kotzur, Good Faith (Bona de) in R. Wolfrum (ed.), Encyclopedia of Public International Law (Oxford University Press, 2008 ), online edition www.mpepil.com. At para. 2, Kotzur cites Grotius citing Aristotle: if good faith has been taken away, all intercourse among men ceases to exist. M. Virally, Review Essay: Good Faith in Public International Law (1983) 77 AJIL 1304, 132. This echoes the statement of the ICJ in the Nuclear Tests case, that Trust and condence are inherent in international cooperation: Nuclear Tests (Australia v. France) (Judgment) [1974] ICJ Rep 253, at 268, para. 46.

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1 The principle of good faith in international law


The centrality of good faith to treaty law is well established in the principle pacta sunt servanda: the Vienna Convention on the Law of Treaties, in one of its most renowned articles, stipulates that Every treaty in force is binding upon the parties to it and must be performed by them in good faith. 498 What is more, the obligation to act in good faith goes beyond treaty law and extends to all international obligations. The principle of good faith is ensconced in the UN Charter: Article 2(2) requires all members of the UN to full in good faith the obligations assumed by them in accordance with the present Charter.499 The requirement that obligations under the UN Charter be fullled in good faith entails a rejection of pure legal formalism and instead places the emphasis on respecting the object and purpose or spirit of obligations and agreements.500 The notion that acting in good faith plays a crucial role in international society is borne out by the Declaration on Friendly Relations, in which the UN General Assembly declared that the fullment in good faith of the obligations assumed by states, in accordance with the charter, is of the greatest importance for the maintenance of international peace and security and for the implementation of the other purposes of the United Nations.501 In the operative part of the declaration, the General Assembly elaborated on the principle of good faith and set down that Every State has the duty to full in good faith not only its obligations arising under the charter, but also those obligations under generally recognized principles and rules of international law and under valid international agreements.502 For its part, the International Court of Justice has repeatedly afrmed and relied upon the principle of good faith and has held that One of the basic principles governing the

498 499 500

501

502

Art. 26 of the Vienna Convention on the Law of Treaties, Pacta sunt servanda. Emphasis added. See B. Simma, Commentary to Article 2(2) in B. Simma (ed.), The Charter of the United Nations: A Commentary (Oxford University Press, 1995), p. 91. See also J. F. OConnor, Good Faith in International Law (Aldershot: Dartmouth, 1991), p. 39, regarding spirit of agreement generally. UN Declaration on Friendly Relations, 24 October 1970 (UN Doc. UNGA Res. 2625 (XXV) 1970), preamble. UN Declaration on Friendly Relations, The Principle that States Shall Full in Good Faith the Obligations Assumed by them in Accordance with the Charter, para. 1.

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creation and performance of legal obligations, whatever their source, is the principle of good faith.503 Good faith is thus central to international law. At the same time, commentators have observed that it is difcult to dene with precision exactly what constitutes or comprises good faith.504 Indeed, it is a principle that is often accused of being vague and ambiguous if not amorphous or elusive.505 The precise contours of its requirements will likely fall to be determined on a case-by-case basis.506 That being said, it may nevertheless be understood in a general sense as the requirement that a State must perform its obligations or exercise its rights in a reasonable, fair and honest manner that is consistent with the object and purpose thereof .507 As noted above, good faith requires states to honour not only the letter but also the spirit of agreements and obligations. The principle of good faith is not, however, a source of obligation where none would otherwise exist.508 Attempting to discern in the abstract what reasonableness and honesty might entail, Bin Cheng has argued that reasonableness in the context of good faith implies an exercise which is genuinely in pursuit of those interests which the right is destined to protect and which is not calculated to cause any unfair prejudice to the legitimate interests of

503

504

505 506

507

508

Nuclear Tests, para. 46. Emphasis added. For the ICJs own listing of its references to good faith, see Cameroon v. Nigeria (Preliminary Objections) [1998] ICJ Rep 275, para. 38. ILC Report on Expulsion of Aliens, 2006, UN Doc. A/CN.4/565, p. 149. For example, Kelsen argued that it is a moral principle with little legal value since its violation entails no consequences. See Hans Kelsen, Law and Peace in International Relations (Cambridge: Harvard University Press, 1942), pp. 911, and that it has no legally relevant meaning (at p. 89, n. 5). Some members of the ILC at the time of drafting of the Vienna Convention on the Law of Treaties shared this position. See J. Salmon, Article 26 Convention de 1969 in O. Corten and P. Klein (eds.), Les Conventions de Vienne sur le droit des traits: commentaire article par article (Brussels: Bruylant, 2008), vol. 2, pp. 1075115, 1096. See also G. Schwarzenberger, The Fundamental Principles of International Law (1955) 87 Recueil des Cours de lAcadmie de Droit International 195385, 3012 (on vagueness). Kotzur, Good Faith (Bona de), para. 1. Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (London: Stevens & Sons, 1953), p. 96: it must depend on the circumstances of each case (reasonableness, or good faith). ILC Report on Expulsion of Aliens, 2006, UN Doc. A/CN.4/565. Some argue that nonarbitrariness is an additional element of good faith. Border and Transborder Armed Actions (Nicaragua v. Honduras) (Jurisdiction and Admissibility) (Judgment) [1988] ICJ Rep 69, para. 94.

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another State.509 In addition, the obligation to act in good faith fetters the exercise of discretionary powers of states:
Whenever, therefore, the owner of a right enjoys a certain discretionary power, this must be exercised in good faith, which means that it must be exercised reasonably, honestly, in conformity with the spirit of the law and with due regard to the interests of others. But since discretion implies subjective judgment, it is often difcult to determine categorically that the discretion has been abused. Each case must be judged according to its particular circumstances by looking either at the intention or motive of the doer or the objective result of the act, in the light of international practice and human experience. When either an unlawful intention or design can be established, or the act is clearly unreasonable, there is an abuse prohibited by law.510

Determining whether a state has exercised its rights and duties in good faith thus implies a subjective/objective test on a case-by-case basis, looking at motive or intent, but also taking into account the effects of an act and making a determination as to whether there has been an intent to thwart the true purpose of the rule, agreement or obligation. A clearly unreasonable act, regardless of intent, may also be contrary to good faith. The dual-prong test is necessary because an absence of malice is not sufcient [in the context of the interpretation and execution of treaties] to escape a charge of bad faith. Compliance with the letter, but deance of the spirit of an engagement is no less incompatible with the standards of a good faith, as opposed to a formally legal (stricti juris), transaction.511 In short, [g]ood faith excludes any separation between reality and appearances.512 A specic intent to circumvent a rule is however not a necessary element of bad faith.

509 510

511

512

Cheng, General Principles of Law, p. 131. Ibid., pp. 1334. Note that Schwarzenburger argues that, in most cases, there is no need to have recourse to an abuse-of-right doctrine (often viewed as part of good faith) since most examples of abuse of right in fact involve exceeding what is actually permitted by the primary rule itself. See Schwarzenburger, The Fundamental Principles of International Law, esp. pp. 290326 (Good Faith). Schwarzenberger, The Fundamental Principles of International Law, p. 300. This position has been adopted by the ILC in its Draft Articles on the Responsibility of International Organizations, although it does not expressly use the language of good faith. See ILC, Report of the ILC on the Work of its Fifty-Eighth Session (2006), Commentary to Draft Art. 28, UN Doc. A/61/10, pp. 2836. (Now Art. 61 (2011).) Virally, Review Essay: Good Faith in Public International Law, p. 131.

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2 Good faith and PMSCs


There are a number of ways the principle of good faith may affect states use of PMSCs. To a certain extent, interrogating good faith compels us to look at why states use PMSCs, as well as at the objective effects of their use. As the move away from the state monopoly on the use of force has posed questions for political scientists, the question as to why states use PMSCs has come under signicant scrutiny. The reasons may be myriad, overlapping and interlinked. The simplest reason most frequently given is that PMSCs cost less for states since they reduce the requirement to maintain large standing armies, widely perceived as no longer necessary at the end of the Cold War.513 In addition, some states rely on them to ll a security vacuum where public forces are incapable or inefcient.514 While economic efciency may indeed form an important part of the reason states employ PMSCs, it may not be the whole reason. The principle of good faith demands a careful and detailed analysis; while we obviously cannot cover every imaginable situation in the abstract, we present guidelines for such analysis below. If a state purports to avoid treaty or other obligations by engaging PMSCs, on the premise that private companies or individuals are not bound by the international legal obligations binding upon state actors,515 that behaviour would clearly violate the principle of good faith.516 It has been suggested that PMSCs may be the force of choice if the tasks envisioned border on the illegal because reliance on PMSCs presents states with the opportunity to argue that their instructions were misinterpreted by the PMSC.517 The use of PMSCs to carry out acts that states

513

514

515 516

517

Milliard gives this reason as do most others. See T. Milliard Overcoming Postcolonial Myopia: A Call to Recognize and Regulate Private Military Companies (2003) 176 Military L Rev 195. This is particularly true of African States. See M. Small, Privatisation of Security and Military Functions and the Demise of the Modern Nation-State in Africa, ACCORD Occasional Paper Series, vol. 1, no. 2 (2006), pp. 17, 202. In itself this is a controversial premise. The word avoid is used rather than circumvent. This accusation was at times raised against the United States in the context of its use of contractors in the Abu Ghraib prison in Iraq in 20034. See D. Avant, Think Again: Mercenaries, Foreign Policy, 1 July 2004. We make no comment on this accusation but simply use it as an illustration of what would be, if such allegations were to be substantiated, in bad faith. As argued by C. Walker and D. Whyte, Contracting Out War?: Private Military Companies, Law and Regulation in the United Kingdom (2005) 54 ICLQ 65190, 6612.

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know are unlawful, are viewed as unlawful by a majority of states, or are of questionable lawfulness is a bad-faith use of PMSCs. The scenario described is precisely the kind of dishonest action that does not conform to the spirit of the law especially when those laws are designed, as are IHRL and IHL, to protect individuals. States have reportedly used PMSCs to get around arms embargoes and carry out foreign policies that defy such bans,518 which use also constitutes a bad-faith use of PMSCs. This must be distinguished from a use of PMSCs to deect criticism from a merely unpopular but perfectly lawful policy or action. For instance, some states have been accused of using PMSCs in order to lower the body count for unpopular military campaigns as some states consider that they do not have to publicly own up to deaths of PMSCs. This situation may have implications for internal good faith, but it does not in and of itself represent a breach of good-faith obligations on the international plane, as long as they are not being used as combatants. If states delegate tasks to PMSCs as a means of weakening the ability of third parties to invoke and/or ascertain the responsibility of the state, such use would not comply with the requirements of good faith. States have been known to deny a link to PMSCs where PMSCs are involved in violations of international law.519 This denial creates hurdles for a state seeking to hold another state responsible for an action of a PMSC because the law of state responsibility requires that an actor/action be attributable to a state. It furthermore makes it difcult for states to force the state that has contracted the PMSC to act to stop that PMSC from continuing a behaviour that violates international law since, if a link between the state and the PMSC is disavowed, presumably control over the actions of the PMSC in question is also disavowed. Too much should not be made of direct bad-faith intent, however. As noted above, the existence of malice is not necessary to show that a state has failed to comply with its obligations in good faith. This entails that a specic intent to circumvent a rule is equally unnecessary to prove a lack of good faith.520 In addition, states are loath to accuse one another of bad

518

519 520

Chia Lehnardt, Private Military Companies and State Responsibility in S. Chesterman and C. Lehnardt (eds.), From Mercenaries to Market (Oxford University Press, 2007), p. 141. This was the case in Croatia with MPRI as well as in Somalia and Sierra Leone. Ibid. See ILC, Report of the ILC on the Work of its Fifty-eighth Session (2006), Commentary to Draft Art. 28, UN Doc. A/61/10, pp. 2836.

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faith in this way.521 Nevertheless, the principle of good faith should guide states use of PMSCs in other ways. The principle of good faith may be relevant in determining the tasks that states may delegate to PMSCs. Even if the intent of the employment of PMSCs is to free up soldiers for other tasks and to have to maintain only small standing armies, if the objective effect of their use contravenes the spirit of IHL, it may not satisfy the requirements of good faith. This is in particular a problem when it comes to using PMSCs in roles in which they may frequently be required or called upon to directly participate in hostilities, despite their civilian status. It may also be an issue of protection of civilians. While, as discussed above, there may be no formal legal obligation for states to use only formally incorporated public forces, and while IHL foresees the existence of civilians accompanying the armed forces, widespread use of civilians to directly participate in hostilities runs counter to the fundamental obligation in IHL to distinguish between civilians and combatants so as to facilitate protection of the civilian population. It may thus also represent an infringement of the obligation to comply with IHL in good faith. Finally, outsourcing raises the tricky question of whether there is a requirement of democratic control over armed forces. At present, no clear-cut international legal obligation or standard exists,522 but some regional organizations have adopted standards and recommendations for states with regard to democratic oversight of the military, such as, for example, that defence expenditures should be subject to approval by legislatures.523 In addition, political scientists have argued that the use of public armed forces triggers a public political debate in states that is crucial to transparency and accountability.524 A common complaint about PMSCs is that states play with contract size in order to be able
521 522

523

524

Schwarzenberger, The Fundamental Principles of International Law, p. 308. Venice Commission, Report on the Democratic Control of the Armed Forces, adopted 1415 March 2008, 74th Plenary, CDL-AD(2008)004, para. 362. A UK charity, War on Want, also took legal action against the UK government in 2008, arguing that the lack of regulatory legislation that would bring PMSCs under democratic control is unlawful (they do not cite a specic law). See www.waronwant.org/attachments/Judicial% 20review%20letter.pdf. Venice Commission Report, ibid., para. 368. For example, the OSCE has a Code of Conduct on Politico-Military Aspects of Security (1994) that requires that, for participating states, the legislature approves the defence expenditures. See also V.-Y. Ghebali and A. Lambert, The OSCE Code of Conduct on Politico-Military Aspects of Security: Anatomy and Implementation (The Hague: Brill, 2005). Leander and van Munster, Private Security Contractors, 209.

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to avoid having to get approval from legislative bodies for their contracts, which may constitute a degree of erosion of civilian control over the military. Such actions may out states national constitutions, but as there is at present no clearly dened international legal obligation in this regard, states use of PMSCs cannot constitute a violation of good faith on that count.

Conclusion

This chapter has sought to explore the limitations owing from international law on the roles and tasks for which states may contract private military and security companies. Some restrictions ow from the inherent structure of the international legal order and the internal structure of specic bodies of international law. We have found that there is no overarching rule, explicit or implicit, that prohibits recourse to PMSCs as a whole and in general, but that there are important limitations. First, states may not outsource the capacity to determine whether force may be used against another state. Secondly, when PMSCs are used in situations of armed conict (including in peace support operations), states must be careful not to give them roles that IHL prescribes only for members of state armed forces, whether explicitly or impliedly. Both under IHL and IHRL, the discretionary and coercive powers inherent in the administration of justice entail that such decision-making authority, or tasks requiring even a limited exercise of such authority, may not be outsourced to PMSCs. Finally, states must be guided by and respect the principle of good faith in determining which tasks they outsource to PMSCs. Based on this understanding that states may use PMSCs lawfully in some circumstances, it is necessary and appropriate to examine the further implications of such use for states and the companies themselves.

2 The international responsibility of states and its relevance for PMSCs*

Under international law, states may be held responsible for internationally wrongful acts that can be attributed to them. One of the concerns arising from the proliferation of private actors in conict zones is that, in the absence of a state actor responsible for them, their sheer unaccountability may somehow contribute to violations of international humanitarian law (IHL) and human rights. Moreover, where private companies actually act on behalf of a state, there is a desire to see that state held accountable for the acts of those companies when their acts contravene international law. As we will explain below, the responsibility of states for the acts of private military and/or security companies (PMSCs) is not contingent on the ofcial incorporation of a PMSC into the ofcial state structure. In international law, states are responsible for the ofcial acts of their organs and agents, but they may also be held responsible for the acts of private persons or entities when they have delegated certain tasks to them or when private persons act on the instructions of or under the direction and control of a state.1 These are the three principal cases in which the conduct of PMSCs may be attributed to states.2 In addition, even where the conduct of a private person or entity cannot be attributed to a state, a state may nevertheless bear obligations of due diligence with respect to that actor. As such, the rules on state responsibility can also play a role in determining the primary legal obligations of a state with

* This chapter draws on a preliminary draft prepared by Mamadou Hbi. The authors gratefully acknowledge Mr. Hbis research and drafting contribution. 1 See Arts. 4, 5 and 8 ASR: Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries in ILC, Report of the International Law Commission on the Work of its Fifty-third Session, UN GAOR, 56th Sess., Supp. no. 10, 43, UN Doc. A/56/10 (2001) (ASR with Commentaries 2001). 2 Under the ASR, other heads of attribution are also available but are less relevant to PMSCs; therefore, we will not discuss them.

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respect to PMSCs, including those it contracts itself and those operating on its territory or territory it controls. The IHL treaties also contain specic rules on state responsibility, including on attribution. In particular, Article 29 GC IV stipulates, [t]he Party to the conict in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility which may be incurred. The agents of a state to which that article is meant to refer were, according to the travaux prparatoires, any employees of a state.3 States sought to avoid an article that would entail their direct responsibility for the acts of local authorities in the case of occupation.4 Consequently, our analysis below proceeds on the assumption that states intended to codify the basic rule on state responsibility in Article 29 GC IV, such that it is appropriate to analyse this rule of IHL through the prism of the International Law Commission (ILC) Articles on State Responsibility (ASR). In what follows, we take the ASR drafted by the ILC as our starting point regarding state responsibility. Although these articles have never been adopted as a convention,5 they are evidence of a source of law.6 Courts and tribunals tend to rely on and apply them almost as they would a treaty7 and, while not without controversy, they enjoy considerable authority in international law.8 Accordingly, in the following chapter, we will examine the imputability of the acts of PMSCs to states based on Article 4 (state organ), Article 5 (person or entity exercising delegated governmental authority) and Article 8 (persons or group acting under the direction and control of a state) ASR. We will then turn to a discussion of state responsibility for PMSCs based on due diligence obligations.
3

7 8

Final Record of the Diplomatic Conference of Geneva, 1949, vol. 2, Section A, Committee III, Report, p. 822. Final Record of the Diplomatic Conference of Geneva, 1949, vol. 2, Section A, Committee III, 29th meeting, Article 26, pp. 71314. For an explanation why the ASR were not presented for adoption as a convention, see J. Crawford and S. Olleson, The Continuing Debate on a UN Convention on State Responsibility (2005) 54 ICLQ 95972. D. Bodansky, J. Crook and D. Caron, The ILC Articles on State Responsibility: The Paradoxical Relationship between Form and Authority (2002) 96 AJIL 857, 867. Ibid., pp. 8678. Shaw points to the unusual procedure according to which the UN General Assembly adopted a resolution, annexed the text of the articles and commended them to governments, which must be seen as giving particular weight to the status of the articles. M. Shaw, International Law, 6th edn (Cambridge University Press, 2008), pp. 7801.

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Attribution of acts of PMSCs under Article 4 ASR

Article 4 of the ILCs ASR stipulates:


1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State. 2. An organ includes any person or entity which has that status in accordance with the internal law of the State.

This article describes the responsibility of states for the acts of their de jure organs irrespective of their nature, their place in the state hierarchy, or the internal structure of the state. The only relevant criterion is that they are organs of the state under its domestic law. Some precedents may also be interpreted as holding that certain entities, although not organs of the state under national law, can nevertheless be considered as such because of their special relationship with the state. Accordingly, the rst part of the following discussion considers the concept of organs of the state under Article 4, including organs expressly incorporated into the state structure under national law and those recognized in international law as having that status due to their special relationship with the state. As such, we will examine situations where a private company can be classied as an organ of the state. In the second part of this section, we will assess the scope of state responsibility for the actions of PMSCs that are or can be deemed to be state organs. In considering the circumstances of PMSCs active in periods of armed conict, the discussion also considers the extent to which the situation of armed conict may affect the scope of this principle of attribution.

A PMSC as a de jure state organ

According to the second paragraph of Article 4 ASR, international law confers primacy on the domestic legal order in determining which entities are state organs. However, this primacy is not absolute and, in some instances, international law may be considered to dene other entities as organs of the state. We will consider PMSCs in light of both possibilities below.

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1.1 The primacy of the domestic legal order in dening state organs The denition of a state organ is primarily left to national law. This is a consequence of international laws recognition of the sovereignty of the state, which can choose how to structure itself in order to carry out its own policies. From an international law perspective, there is no rule obliging a state to structure itself in any particular manner, as long as it has the capacity to carry out its international obligations;9 but, having freely chosen to designate some of its internal components as state organs, the state then bears the responsibility for their conduct.10 In this respect, international law recognizes the existing national law classication of state entities and only determines the effects of this classication in the international legal order. Thus, although internal law is a fact under international law and, as such, cannot produce any legal effect per se in this legal order, exceptionally, international law can attach some legal effect to the products of domestic law.11 In such cases, the legal classication made under internal law will have legal effect in the international legal order because of the recognition given to it by international law. Thus, the notion of state organs for the purposes of attribution in the law of state responsibility can sometimes be either wider or narrower than the meaning of the same concept in domestic law because of an autonomous designation made under international law.12
9

10

11

12

Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, at 43, para. 94. The Court declared: No rule of international law, in the view of the Court, requires the structure of a State to follow any particular pattern, as is evident from the diversity of the forms of State found in the world today. The ICJ reiterated that states are free to choose a political, economic, social and cultural system, and the formulation of foreign policy in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ Rep 14, at 108, para. 205 (Nicaragua). See also the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV), 24 October 1970. L. Condorelli, Limputation ltat dun fait internationalement illicite: solutions classiques et nouvelles tendances (1984) 189 Recueil des Cours de lAcadmie de Droit International 9. Certain German Interests in Polish Upper Silesia (Germany v. Polish Republic) (Merits) [1926] PCIJ Rep, Series A, no. 7, p. 19. In this regard, the ILC considered that: As we have already pointed out, international law is perfectly free to make or not to make the attribution of some particular conduct to the State subject of international law dependent on the fact that the individual who engaged in that conduct is or is not regarded as an organ of the State by

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In order to apply Article 4 ASR to PMSCs, it is necessary to consider whether they are de jure organs in accordance with this provision and also whether they have been designated as state organs. The authors are not aware of any instance in which a PMSC has been formally created by a state as part of its governmental structure. As private entities they are generally formed by private persons and it seems unlikely, although by no means impossible, that many states would choose to create a state organ in this way. It is perhaps more plausible that a state may choose to incorporate an existing private entity into the state apparatus. In such a case, where an entity formally independent of the state is incorporated into the latters structure, this entity becomes an organ of the state and, as such, can incur the responsibility of the state for its conduct.13 In theory, then, formal incorporation of a PMSC as an organ of a state, through normal mechanisms of domestic law, could provide an example of how a PMSC may be recognized as an organ of a state under Article 4 ASR. While a total incorporation of a private corporate entity into state structures through statutes or laws would seem unlikely, and perhaps contradictory because of the essentially private nature of PMSCs, there may be other mechanisms by which this can occur. One possible mechanism is a state contract, under which a PMSC could be assigned some tasks on behalf of the state, similar to contracts used by some governments now to engage private companies to manage state prison facilities. In such cases, can the contract be deemed sufcient for the purpose of incorporating a PMSC into the state structure to the extent that it can be considered an organ of the state? At rst glance, a contract per se would not appear sufcient for the purpose of incorporation as a state organ. Indeed, the Montreux Document specically states, entering into contractual relations does not

national law. The consideration of certain acts as acts of the State in international law may be based on criteria which are both wider and more limited than the corresponding consideration in municipal law.
13

ILC, (1971) 2(1) YBILC 233, para. 120. In Genocide Convention (Bosnia v. Serbia), the ICJ examined whether the Scorpions (an armed group operating in the former Yugoslavia) might have been legally incorporated into the Serbian army in order to consider them organs of that state: Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Merits) [2007] ICJ Rep 43, at para. 389 (Genocide Convention (Bosnia v. Serbia)).

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in itself engage the responsibility of Contracting States.14 Arguably, a contract does no more than create private rights and obligations for each party. It may produce certain legal effects within the relevant internal legal order, but it cannot be equated with that order itself.15 Moreover, it would be ludicrous to suggest that any private entity that enters a contract with a state thereby becomes an organ of that state. There are nevertheless two means by which a contract could have the effect of incorporation. First, a contract could incorporate a PMSC or its employees into the states organs if domestic law so provides. It would be necessary to examine the relevant national law to verify whether or not this is possible. For example, this could be the case where there is a provision in domestic law allowing members of the armed forces to be recruited through private contracts. If a state concludes a contract with a private person to become a member of its armed forces, on the basis of such a domestic provision, the contract will be sufcient to declare that that person has been incorporated as a state organ. The second scenario is where the contract itself can have the effect of incorporation, if it denes the status of the contractor or the company as that of a state organ and it incorporates the contractor into an organ already recognized under domestic law. One example might be where PMSC employees are contractually engaged as members of the armed forces, or of any other domestic organ, in which case they will be actual organs of the state.16 In such cases, where the contract denes the status
14

15

16

See the Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conict (Montreux, 17 September 2008), para. 7. This implies that a contract alone is not sufcient to create a state organ. The Montreux Document was also circulated as a document of the UN General Assembly and UN Security Council pursuant to a request by the Swiss Ambassador, UN Doc. A/63/467 and S/2008/636 (6 October 2008). Katja Nieminen, The Rule of Attribution and the Private Military Contractors at Abu Ghraib: Private or Public Wrongs (2004) 15 Finnish Ybk Intl L 289319, 297; N. Boldt, Outsourcing War: Private Military Companies and International Humanitarian Law (2004) 47 German Ybk Intl L 50244, 525. Avril McDonald, Ghosts in the Machine: Some Legal Issues Concerning US Military Contractors in Iraq in M. Schmitt and J. Pejic (eds.), International Law and Armed Conict: Exploring the Faultlines: Essays in Honour of Yoram Dinstein (Leiden: Martinus Nijhoff, 2007), p. 392: The legal basis for claiming that states are not responsible for the wrongful acts of contractors is that contractors are neither employed by nor are members of the armed forces and are not empowered to act as agents of the state. They do not operate under the command or direction of the state.

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of the PMSC or its employees in relation to that of a state organ, the PMSC will also be considered an organ of the state in international law and, as such, its conduct will be attributable to the state. In these situations, the contract will be considered a means by which the state has established one of its organs, even if this is not the normal procedure for creation of state organs in the internal law of the state. Certainly, from an international law perspective, the state cannot invoke the provisions of its domestic legal order to avoid responsibility especially in cases where it has willingly waived its own procedural requirements.17 In any event, if it comes to that, the International Court of Justice (ICJ) may be less concerned with respect for the domestic formalities of incorporation than with the actual practice.18 Although rare, incorporation as a state organ by contractual means has actually occurred.19 In a contract between Sandline International and the state of Papua New Guinea, it was stipulated that the employees
This contrasts with the members of the armed forces or civilian employees of the armed forces for whose actions the US and other states are legally responsible under the principle of agency. According to the US ofcial doctrine, US and foreign contractors accompanying the armed forces are considered civilians accompanying the force and are neither combatants or noncombatants. Joint Chiefs of Staff Joint PUB. 40, Doctrine for Logistic Support of Joint Operations, Ch. V, 12 a (6 April 2000), www.aschq.army.mil/supportingdocs/JP4_0.pdf. Alabama Claims Arbitration (US/UK), Decision and Award Made by the tribunal of arbitration constituted by virtue of the rst article of the treaty concluded at Washington the 8th of May, 1871, between the United States of America and Her Majesty the Queen of the United Kingdom of Great Britain and Ireland of 14 September 1872, reported in John Bassett Moore, History and Digest of the International Arbitrations to which the United States has been a Party (Washington: Government Printing Ofce, 1898), vol. 1, pp. 653, 656 (Moore (ed.), Decision and Award, Alabama Claims Arbitration). In Genocide Convention (Bosnia v. Serbia) for example, the Court might have been willing to use communications of the Republic Srpska addressed to the government in Belgrade as evidence of the incorporation of the Scorpions into the latters army. If such communications could be considered proof of incorporation, so might a contract between a state and a company dening the company as a state organ or incorporating it into an existing state organ. However, the ICJ specically found that the letters were not addressed to Belgrade and held that it could not nd that the Scorpions were incorporated into the Serb army. It may well have raised further questions on different facts. See Genocide Convention (Bosnia v. Serbia), para. 389. See also L. Doswald-Beck, Private Military Companies under International Humanitarian Law in S. Chesterman and C. Lehnardt (eds.), From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford University Press, 2007), p. 121. On the exceptional character of such incorporation, see Boldt, Outsourcing War, pp. 51416.

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19

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of the rm would have the status of Special Constables, a classication in that states police force.20 It is also possible that something similar occurred in the case of Executive Outcomes (EO) in Sierra Leone and Angola, although precise documentary evidence is not available.21 This may also be the case with regard to the recent creation of a security force recruited, contracted and trained by a PMSC but placed directly under the military intelligence commander of the United Arab Emirates.22 With the exception of these cases, there appear to be no other examples where states have ofcially conferred on PMSCs the status of state organs. Singer explains the rationale behind this reluctance as follows:
The key, however, is that just because a rm is hired by a customer does not mean that it becomes part of them institutionally. In fact, the very rationale for many rms success may rather be their willingness to undertake these tasks while still remaining independent from government administration.23

Indeed, the effectiveness of outsourcing may at times require the independence of PMSCs from state organs. The ILC Commentary on Article 4 ASR also envisages the situation of states where the status or functions of various entities may be dened by practice (through legal precedent) as well as by legislation.24 According to the Commentary, in such cases, reference can be made to the practice of the state, to the powers the entity concerned possesses, and also to its relations with other organs of the state.25 Even if one wishes to use domestic practice as an indicator, however, as the ILC Commentary allows, PMSCs and their employees are not generally treated as members of state armed forces.26

20

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22

23

24 25 26

See the text of the contract online: http://coombs.anu.edu.au/SpecialProj/PNG/htmls/ Sandline.html. Juan Carlos Zarate, The Emergence of a New Dog of War: Private International Security Companies, International Law, and the New World Disorder (1998) 34 Stanford J Intl L 76162, 124. See M. Mazzetti and E. Hager, Secret Desert Force Set up by Blackwaters Founder, New York Times, 14 May 2011, p. A1. The New York Times carried a link to a copy of the contract; on le with the authors. Peter Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca: Cornell University Press, 2003), p. 48. An example may be the UK, which has no written constitution. Commentary on Art. 4 ASR with Commentaries 2001, p. 42, para. 11. See Ch. 4, section A 1.1.1 below.

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According to this analysis, there will be very few cases in which PMSCs or their personnel could be considered state organs under domestic law. This perspective has led to some scepticism amongst legal commentators about the usefulness of Article 4 ASR as a means of holding states responsible for the acts of the PMSCs contracted by them;27 however, there remains another possibility of attribution under Article 4, to which we will now turn.

The exceptional case of state organs dened by international law International law gives primacy to states to determine the status of their own organs. That autonomy is not absolute, however, and it is conditional on the exercise of good faith by the state in designating domestic entities as state organs. In certain exceptional cases, international law may determine that an entity is in fact a state organ even if it has not been dened as such by that states internal law or legal order. This is why Article 4 ASR describes state organs as including those dened as such by internal law, rather than limiting the denition of state organs to those ofcially recognized or established by internal law.28 When it comes to PMSCs, the most common approach in this respect is to consider whether contractors form part of the armed forces of the contracting state party to an armed conict according to Article 43 AP I or Article 4A(2) GC III in other words, based on IHL. We provide a detailed analysis of that issue in terms of the present use of PMSCs in 1.2

27

28

In this sense, see Chia Lehnardt, Private military companies and state responsibility in S. Chesterman and C. Lehnardt (eds.), From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford University Press, 2007), pp. 13957, who analyses attribution of PMSCs only under Arts. 5 and 8 ASR; A. von Epiney and A. Egbuna-Joss, Zur vlkerrechtlichen Verantwortlichkeit im Zusammenhang mit dem Verhalten privater Sicherheitsrmen (2007) 17 SZIER 21533, 222; Andrew Clapham, Human Rights Obligations of Non-state Actors in Conict Situations (2006) 88 Intl Rev Red Cross 491523, 514; McDonald, Ghosts in the Machine, p. 397; Nieminen, Attribution and Abu Ghraib, p. 297. Art. 4(2) ASR: An organ includes any person or entity which has that status in accordance with the internal law of the State. M. Spinedi, La responsabilit dello Stato per comportamenti di private contractors in M. Spinedi, A. Gianelli and M. L. Alaino (eds.), La codicazione della responsabilit internazionale degli Stati alla prova dei fatti: Problemi e spuniti di riessione (Milan: Giufr, 2006), p. 93. See the oral pleadings of Professor Luigi Condorelli before the ICJ in Genocide Convention (Bosnia v. Serbia), Pleadings of 6 March 2006, CR2006/9, at 4750, paras. 714, www.icj-cij.org/docket/les/ 91/10602.pdf.

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Chapter 4 below, in our discussion of IHL rules and PMSCs,29 but we acknowledge the validity of this avenue for attribution, which is often explored by authors in relation to state responsibility for PMSCs. In a nutshell, our conclusion is that for the most part, PMSCs do not meet the criteria to be members of the armed forces of a party to a conict as dened by IHL, and therefore are not attributable to states on this basis. Nevertheless, we believe it is worthwhile to examine the possible attribution of PMSCs to states as equated with organs of states under the general rules of international law (as opposed to the specic rules of IHL dening a state organ), so we proceed now to that analysis. As the Commentary to the ASR states, a State cannot avoid responsibility for the conduct of a body which does in truth act as one of its organs merely by denying it that status under its own law.30 In discussing this possibility, the ICJ is careful to point out that the equation of an entity with a state organ is purely for the purpose of establishing state responsibility.31 Indeed, any conclusion that a PMSC is or could be equated with a state organ for the purposes of attribution and state responsibility (other than in the case of attribution via combatant status under IHL rules) has absolutely no bearing on a determination as to whether that PMSC forms part of the armed forces of the state in question. Since in general international law this type of analysis has often been pursued with regard to militias or armed groups, it is an interesting and important avenue to explore vis--vis PMSCs, which in many respects may seem to resemble militia or law enforcement forces. Indeed, some seem to wonder whether they are not state-sponsored paramilitaries merely hired by contract through a normal public procurement system. In this section, we will examine whether legally PMSCs can be considered to be equated with organs of the states that contract them.
29 30

31

See Ch. 4, section A 1 below. Commentary on Art. 4 ASR with Commentaries 2001, p. 42, para. 11. The International Criminal Tribunal for the former Yugoslavia (ICTY) also concurred with the existence of this rule for the attribution of the activities of private persons to states in its 1999 Tadi case: The Appeals Chamber holds the view that international law also embraces a third test. This test is the assimilation of individuals to State organs on account of their actual behaviour within the structure of a State (and regardless of any possible requirement of State instructions). Prosecutor v. Tadi (Appeals Chamber Judgment) IT-941-A (15 July 1999), at 60, para. 141. See also R. Wolfrum, State Responsibility for Private Actors: An Old Problem of Renewed Relevance in M. Ragazzi (ed.), International Responsibility Today: Essays in Memory of Oscar Schachter (Leiden: Martinus Nijhoff, 2005), pp. 42334. Genocide Convention (Bosnia v. Serbia), para. 393.

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At the outset, it is important to note that this type of de facto organ is not the same as the one commonly referred to under Article 8 ASR. Article 8 de facto organs are private entities that are attributable to a state when they can be proven to operate under a states instructions, directions, or control. The kind of actors that can be equated with state organs under Article 4, on the other hand, may be described as those that are in a relationship of complete dependence on a state.32 The distinction is subtle. Indeed, the elements of the test for whether an entity can be equated with a state organ under Article 4 are similar and emanate from the same ICJ jurisprudence as Article 8 de facto organs.33 Furthermore, analysis is made more difcult due to the fact that, although it has admitted the possibility that, in some circumstances, persons, groups of persons or entities may, for purposes of international responsibility, be equated with state organs even if that status does not follow from internal law,34 the ICJ has thus far never found an entity to be equated with a state organ.35 Its rationale for nevertheless leaving the possibility open may be explained by its sense that:
it is appropriate to look beyond legal status alone, in order to grasp the reality of the relationship between the person taking action, and the State to which he is so closely attached as to appear to be nothing more than its agent: any other solution would allow States to escape their international responsibility by choosing to act through persons or entities whose supposed independence would be purely ctitious.36

The Court considered that it would only be in an exceptional case that persons not having the status of organs under internal law would be deemed organs of the state in international law.37 The key elements of the test for whether an entity may be equated with a state organ under Article 4 can nevertheless be discerned from the jurisprudence of the ICJ and eshed out with the help of case law from other judicial bodies. In a nutshell, the Court looks for proof of a
32 33

34 35

36

Ibid. In particular Nicaragua, Genocide Convention (Bosnia v. Serbia), and Armed Activities on the Territory of the Congo (Congo v. Uganda) (Merits) [2005] ICJ Rep 168 (Congo v. Uganda). Genocide Convention (Bosnia v. Serbia), para. 392. The ICJ examined this possibility in its judgment in Nicaragua. It also canvassed the possibility in Congo v. Uganda, para. 160. On the fact that the Court had already examined this possibility in Nicaragua, see the dissenting opinion of Judge Kirk McDonald in Prosecutor v. Tadi (Trial Chamber) IT-941 (7 May 1997), at pp. 2956. 37 Genocide Convention (Bosnia v. Serbia), para. 392. Ibid. para. 393.

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particularly great degree of State control over the entity or person in question.38 Again, this level of control must obviously be distinguished from the control sought under Article 8 ASR if it is to be meaningful.39 In its most recent analysis of such a relationship of control, in the context of whether the Republika Srpska government or armed forces could be equated with organs the Federal Republic of Yugoslavia (FRY), the ICJ looked for a relationship of complete dependence.40 Although succinct, its nding that such a relationship did not exist in that context is revealing. In particular, the Court acknowledged that the Republika Srpska could not have conducted its crucial or most signicant military and paramilitary activities without the very important support given by the FRY, but it held that even that level of dependence did not satisfy the test.41 In addition, it found that the evidence showed that the Republika Srpska leaders had some qualied, but real, margin of independence, and pointed to the existence of differences over strategic options between the FRY authorities and Bosnian Serb leaders.42 Further elements of the test can be drawn from the Nicaragua case, upon which the ICJ drew in its judgment above. In Nicaragua, the Court found that the contras could not be equated with organs of the United States. To reach this conclusion, the Court noted that the United States did not create the contras forces43 and also found that the evidence did not warrant a nding that the United States gave direct and critical combat support, at least if that form of words is taken to mean that this support was tantamount to direct intervention by the United States combat forces, or that all contra operations reected strategy and tactics wholly devised by the United States.44 It concluded that despite the heavy subsidies and other support provided to them by the United States, there is no clear evidence of the United States having actually exercised such a degree of control in all elds as to justify treating the contras as acting on its behalf .45 Since the Court applied these criteria to deduce
38 39

40 42 45

Ibid. Since instruction, direction and control may be read disjunctively, there is no objective reason to have the same standard of control here for purposes of attribution as that would render the existence of the possibility wholly unnecessary. The starting point must therefore be that it must be a backdoor for cases which would not satisfy the existing criteria under Art. 8 but which nonetheless strongly deserve to be attributed to the state in question. 41 Genocide Convention (Bosnia v. Serbia), para. 392. Ibid., para. 394. 43 44 Ibid. Nicaragua at 54, para. 91. Ibid., at 62, para. 108. Ibid., at 62, para. 109.

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that the contras were not assimilated into the United States armed forces, it is plausible that, had the evidence gone the other way, the Court would have taken the bold step of nding that the contras were organs of the United States, despite their lack of recognition as such in domestic law. Beyond the ICJ jurisprudence, other case law reafrms the concept that entities can be equated with state organs under international law and provides more grist for interpretation. For example, in the 1927 Stephens case, an arbitral tribunal considered that a member of a civil militia could be considered to be or be equated with a soldier if on a regular basis he undertook the same activities as members of the state armed forces under the control of a sergeant of the army.46 In the 1945 Belsen case, the British Military Tribunal sitting in London, commenting obiter on whether war crimes could be committed by Allied civilian nationals acting as staff members of concentration camps, observed, the Prosecutor said that by identifying themselves with the [German] authorities the Polish accused had made themselves as much responsible as the S.S. themselves. Perhaps it could be claimed that by the same process they could be regarded as having approximated to membership of the armed forces of Germany.47 In the 1987 Menten case, the Dutch Supreme Court considered that Menten could be regarded as a functionary of the enemy (an element essential to his conviction for war crimes according to Dutch law) on the grounds that, on the orders of a German SS ofcer, he was

46

This example shows that the notion of equating a private person with a state agent is not only a recent phenomenon. In that case, the tribunal considered: It is difcult to determine with precision the status of these guards as an irregular auxiliary of the army, the more so as they lacked both uniforms and insignia, but at any rate they were acting for Mexico or for its political subdivisions Responsibility of a country for acts of soldiers in cases like the present one, in the presence and under the order of a superior, is not doubtful. Taking account of the conditions existing in Chihuahua then and there [the absence of the federal army and the rebellion which was going on], Valenzuela must be considered as, or assimilated to, a soldier. Charles S. Stephens and Bowman Stephens (USA) v. United Mexican States (1927) IV RIAA 265 (Stephens case). Emphasis added. A. O. Kees interprets Stephens as recognizing de facto organs in the sense of Art. 4 ASR in his Privatisierung im Vlkerrecht: Zur Verantworlichkeit der Staaten bei der Privatisierung von Staatsaufgaben (Berlin: Duncker & Humblot, 2007), p. 84. Trial of Joseph Kramer and 44 Others, British Military Court, Luneberg, 17 September17 November 1945, Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Published for the United Nations War Crimes Commission by His Majestys Stationery Ofce, London 1947 (UNWCC), vol. 2, at 152.

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dressed in the uniform of an under-ofcer of [that] branch of the police when he was assigned to the Special forces as interpreter. Concurring with a lower court that his position in the Einsatzkommando and his performances in it were of a more or less ofcial character, the Supreme Court held, the relationship to the enemy in which Menten rendered incidental services was of such a nature that he could be regarded as a functionary of the enemy.48 Recent jurisprudence of human rights tribunals adds to our understanding of situations in which entities may be equated with state organs in the face of states denial of such status. In the 1998 Blake case, the Inter-American Court of Human Rights held:
contrary to Guatemalas claims, the civil patrols in fact acted as agents of the State during the period in which the acts pertaining to the instant case occurred [A]t the time the events in this case occurred, the civil patrols enjoyed an institutional relationship with the Army, performed activities in support of the armed forces functions, and, moreover, received resources, weapons, training and direct orders from the Guatemalan Army and operated under its supervision.49

The facts that Guatemala had itself created the civilian patrols as part of its counter-insurgency strategy and that the state itself described the patrols as auxiliary forces coordinated by the Ministry of Defense were important to the Courts nding.50 On the other hand, the fact that the entities equated with state organs may not enjoy the same administrative treatment as state forces may not be relevant for the purposes of attribution. In Blake, for example, the judges discarded the argument of Guatemala that it did not grant members of the patrols any remuneration or social security benets as it did to regular troops [and] that [members of the civilian patrol] were not subject to military discipline.51 The Blake case would appear to be the classic situation provided for in the ILCs inclusive denition of state organs. Therefore, even though international law allows national law to dene state organs, this competence is not absolute. International law can still recognize as a state organ an individual or an entity that does not enjoy this status under domestic law, providing it is functionally a part of the
48

49

50

Public Prosecutor v. Menten, Dutch Supreme Court, decision of 10 April 1986 (1987) 75 ILR at 347 (Menten). Blake v. Guatemala, Judgment, Inter-American Court of Human Rights, Series C, no. 36, 24 January 1998, paras. 756 (Blake case). 51 Ibid., para. 71. Ibid., para. 74.

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state apparatus such that it acts in fact as an organ of the state.52 In applying the elements indicated in the non-ICJ cases to PMSC employees, we note that they do not necessarily have to be subject to the same administrative treatment as organs of the state under its domestic law in order for their conduct to be attributable to the engaging state, if they are in fact so integrated that they act as organs of the state. This conclusion is also supported by practical considerations. The more that such private entities or individuals are embedded in the state apparatus, the less distinguishable they become from the state and its organs.53 In the same vein, concerning especially PMSC personnel who can be assimilated to state armed forces, it should be noted that wearing military uniforms, or military-like uniforms, by PMSCs, while obviously important in deciding whether they are armed forces of a state, is not decisive in deciding whether they are functioning as state organs for the purposes of international law.54 In some cases, a private person or entity can be equated with state armed forces even in the absence of a military or military-like uniform.55 On the other hand, it must be recalled that wearing uniforms or a xed distinctive sign is important for combatant and prisoner of war (POW) status (discussed in Chapter 4 below). Finally, we note that although the case law we have considered has related to security forces, it is ambiguous whether such forces are assimilated to military or law enforcement forces. This fact illustrates that even if an entity can be equated with an organ of a state and has a function related to military or security activities, the nding for the purposes of state

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55

ICSID, Maffezini v. Spain (2001) 40 ILM 1142, para. 82: [w]hether an entity is to be regarded as an organ of the State and whether this might ultimately engage its responsibility, is a question of fact and law to be determined under the applicable principles of international law. See in this sense, McDonald, Ghosts in the Machine, p. 397; C. H. Lytton, Blood for Hire (2006) 8 Oregon Rev Intl L 30735, 321. The importance of appearance for the purpose of equating a private person to a state organ was emphasized in the Menten and Daley cases. In Daley, the Claims Tribunal held Iran responsible for the expropriation of a car, for the ve Iranian Revolutionary Guards who had taken the car were in army-type uniforms. Daley v. Islamic Republic of Iran (1988) 18 Iran-USCTR 232, paras. 1920 (Daley case). In the Stephens case, the arbitral tribunal equated Valenzuela to a soldier, although it noted that he wore neither a military uniform nor insignia. The ICRC Commentary to Art. 43 AP I states, [w]earing or not a uniform or outt is not a decisive criterion for the status of the individual concerned. Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: ICRC, 1987), p. 512, para. 1672.

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responsibility has no bearing on the status of that entity, for example as a combatant member of the armed forces. As for the test that can be articulated according to the rest of this caselaw, there are three criteria that are relevant in determining that a private person or private entity has a relationship of complete dependence on a state. The rst criterion considers how the entity was created, and in particular whether it was created by the state. The second looks at the private entitys co-operation with organs of the state and its involvement as an instrument in the planning of the states activities. The third aspect is the level of autonomy of decision-making of these individuals or groups in the choice of their goals and the means they use to achieve them. Looking for proof that a state created an entity, that it controlled the entity to the point that the entity essentially could not disobey the states orders or make up or follow its own plans and that the state subsidized the entity totally,56 we sense immediately that the Court is attempting to dene elements that demonstrate a relationship of total power. As our analysis below will show, it is tricky to apply this test to polymorphous corporate entities that operate in conict zones based on contracting with states, businesses, non-government organizations (NGOs) and other humanitarian actors on an open market. The relevance of the states role in creating an entity is an interesting element, although it should perhaps not be considered decisive.57 This issue was not considered in the Stephens case but it has been an important factor in the other cases. When a state creates an armed group, this fact can be an element to prove the scope of the control or dependence of the group on the state, as was the case in Blake.58 If, however, the creation
56

57

58

We reach the conclusion that subsidization must be total or nearly total as it is the logical result of a determination that even an entity that could not have carried out its most important operations without the support of the state does not satisfy the criteria the Court has in mind. In the ILC Commentary on Art. 8 ASR, the commission noted, [t]he fact that the State initially establishes a corporate entity, whether by a special law or otherwise, is not a sufcient basis for the attribution to the State of the subsequent conduct of that entity. See Commentary on Art. 8 ASR with Commentaries 2001, p. 48, para. 6. In addition to Nicaragua, the ICJ has referred to the criterion of the creation of the armed group in Congo v. Uganda. DRC argued that Uganda had created one of the armed groups in support of its contention that the group could be equated to an organ of Uganda. The Court found that the evidence presented did not support that claim and cited the lack of such evidence as supporting its conclusion that the group in question could not be attributed to Uganda under Art. 4 ASR. Congo v. Uganda, paras. 15560. Blake case, para. 77: This institutional relationship was visible in the very decree creating these Civil Defense Committees (CDC) .

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by a state of an armed group means the state sets the goals of the group and maintains a kind of authority over it through nancing, a contract can do exactly the same by dening the tasks of a PMSC and by giving to the state the power to constrain it legally in the execution of these tasks.59 In Nicaragua, the rst element the Court emphasized in concluding that the contras were not completely dependent on the United States was that the contras continued their armed activities after the United States ceased to nance them.60 Intuitively, one would think that a PMSC will not continue its activities on behalf of a state without being paid, but there are examples of PMSCs carrying on with their contractual obligations even when the contracting state has defaulted on payment.61 Nevertheless, arguably, the contract creates a high level of dependency between the state and the PMSC.62 Moreover, even if the contract does not formally create the PMSC, it may be the basis of their activity in the zone of the armed conict. As such, it involves the PMSC in a situation where it would not nd itself but for the contract. In a way, the contract with a state may create the PMSC as it functions in the situation of a particular armed conict, so that it is the state which brings it forward as an actor rather than adopting it after it has already become involved. This may be the case where a PMSC exercises a function such as guarding a military base, where the contract and function in question can only be granted by a state or its Ministry of Defence. In the absence of such a contract, the PMSC in question would certainly not be responsible for providing security for the base. However, it is more difcult to sustain this kind of but for reasoning when it comes to more general contracts to provide security. Indeed, any number of actors including non-state actors such as reconstruction companies and NGOs may hire PMSCs to provide security in the context of an armed conict. Thus, even if a state decided to terminate its contract with a PMSC to provide general security in a conict zone, a PMSC may well remain in the conict zone providing security on behalf of another client. Thus, the closer the actual function is to something only a state may contract for, the stronger this argument may be.
59

60 61 62

In the Stephens case (at 267), the tribunal observed that the paramilitary guards were acting on behalf of Guatemala. This conclusion may be easy to reach when there is a contract between the PMSC and the state. Nicaragua at 62, para. 110. Deborah Avant, The Market for Force (Cambridge University Press, 2005), pp. 8791. Concerning the inuence that states of incorporation exercise over PMSCs, even when they do not employ them, see Zarate, New Dog of War, p. 112.

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In addition, the power to create also entails the power to destroy, as is suggested by the ICJs observation in Nicaragua that the contras continued their activity without US support. When it comes to PMSCs, this does not need to be interpreted as meaning that but for a given contract with a state, a particular PMSC would cease to exist. Even though many PMSCs derive a considerable portion of their revenue from contracts with states, demanding such a degree of dependence would be an unreasonable application of the test. Instead, the power to dissolve an entity may be interpreted as the power to remove a PMSC from a particular role. Continuing with our example of a PMSC contracted to provide security for a military base, one can imagine that a state would act quickly to remove that company if it failed to full or violated its obligations under the contract.63 Here, however, the nebulous and uid nature of the companies may make it difcult for states to ensure that the actual company leaves the conict zone and sometimes even the role for which it was originally contracted. For example, it is widely known that Blackwater used shell companies to bid on contracts after it came under intense criticism for some of its acts. In ofcial hearings, US military contracting ofcers who had awarded a contract to one of Blackwaters subsidiaries reported being completely unaware that the PMSC that they contracted was an afliate or shell company of Blackwater.64 Of course, it is not impossible to prevent the award of contracts to such shell companies (especially following the termination of a contract with the parent company), but this example is illustrative of the pitfalls involved. The ability of PMSCs to remain in theatre in the same or very similar roles should not be underestimated.65 Nevertheless, the contract and its ability to create the PMSC in a particular role in a conict can be considered an element in justifying a decision to equate a PMSC or its employees with state organs.
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As an example, the US House of Congress has passed legislation which, if it becomes law, would prohibit the federal government from contracting with persons (including legal persons) that violate US anti-corruption laws. See Overseas Contractor Reform Act, H.R. 5366 (Report no. 111588), 14 September 2010. US Senate Committee on Armed Services, Contracting in a Counterinsurgency: An Examination of the Blackwater-Paravant Contract and the Need for Oversight Hearing Testimony, 111th Congress, S. HRG 11571 (24 February 2010), p. 76, testimony of Dr Blake, Army contracting ofcer whose ofce approved of the contract with Paravant. Top executives of Blackwater were accused of paying bribes to Iraqi ofcials following the Nisoor Square massacre, which led to demands by the Iraqi government that Blackwater leave Iraq. See M. Mazzetti and J. Risen, Blackwater said to Pursue Bribes to Iraq after 17 Died, New York Times, 11 November 2009, p. A1.

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The decisive criterion in all the jurisprudence is that of the factual insertion of the entity into the state apparatus and the states use of the entity to accomplish activities on its behalf. This implies a high degree of subordination of the PMSC personnel to the state. Here again, one would have to look carefully at the contract through which PMSCs and their employees are hired. Through the contract, PMSCs are given tasks and sometimes delegated powers which are exercised under the general supervision of the state, in the sense that they are contractually accountable to the state. They may thus be considered somehow part of the state structure.66 In some cases, the contractual outsourcing may confer virtually no autonomy on the private entity, so that PMSCs and their employees may be completely dependent on organs of the state to full their duties. Carsten Hoppe considers that leading interrogations is one such activity.67 In such circumstances, PMSCs and their employees may even full their duties within the structure of a states armed forces, so that practically speaking they work in subordination to other organs of the client state, which uses them according to its needs; the PMSCs relevant skills are merely simple instruments to accomplish its policy.68 When deciding that the contras should not be equated with the United States armed forces, the ICJ held it could not be proven either that
66

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We note that in the Commentary on Art. 43 (on dening combatants) of the Additional Protocols, the ICRC recognizes that states may create their forces according to their own laws. Arguably, a contract could be considered to be such a means, depending on its terms and on whether the states laws allow for that possibility. Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, p. 512. Carsten Hoppe, Passing the Buck: State Responsibility for Private Military Companies (2008) 19 EJIL 9891014, 991. Nicki Boldt considers that by contracting a PMC, a state exercises control through its contract with a PMC. It assigns functions to the PMC, sets a code of conduct and often denes exactly how many contractors have to do what, and in what manner. Within the parameters of that contract, the state can even instruct contractors while in the eld or on mission. Boldt, Outsourcing War, 525 (footnotes omitted). However, by this logic, every time a state contracts any business for services, that business becomes part of the state, which contradicts what states afrmed in para. 7 of the Montreux Document. CACI has insisted that the contractors who were interpreters and interrogators at AbuGhraib were not left on their own but were acting under the supervision of organs of the United States. CACI Corrects False Information about Chain of Command in Iraq. Civilian Contractors Do Not Give Orders to Military Personnel, www.caci.com/about/ news/news2004/07_29_04_NR.html. See Katja Nieminen, Private Acts or Public Wrongs, p. 300. But see George R. Fay, AR 156 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade (August 2004), http://1. ndlaw.com/news.ndlaw.com/hdocs/docs/dod/fay82504rpt.pdf (Fay Report), p. 52, where witness statements contradict that assertion.

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members of the United States armed forces participated in hostilities alongside the contras, or that the United States devised all the strategy and tactics of the contras. With regard to the indicia of participation in hostilities of a states armed forces alongside a private armed group, it is worth recalling the following statement of Roberto Ago, Special Rapporteur for the ILC on state responsibility:
Where that Government [of the country in which they are based] is known to encourage and even promote the organization of such groups, to provide them with nancial assistance, training and weapons, and to co-ordinate their activities with those of its own forces for the purpose of possible operations, and so on, the groups in question cease to be individuals from the standpoint of international law. They become formations which act in concert with, and at the instigation of, the State, and perform missions authorized by or even entrusted to them by that State. They then fall into the category of persons or groups which are linked, in fact if not formally, with the State machinery and are frequently called de facto organs 69

The scenario examined here is one where the PMSC or its employees are used as auxiliaries to complement the states armed forces in the conduct of hostilities. Accordingly, when PMSC employees participate in hostilities in collaboration with state armed forces, and under a common strategy or plan, arguably, they may be equated with a state organ. Arguably, PMSCs participating in hostilities alongside state armed forces may fall under this interpretation of Article 4 ASR. We do not include in this category PMSCs performing security functions who may occasionally directly participate in hostilities, but only those who do so consistently and who could be deemed to have a continuous combat function. Furthermore, it must be recalled that mere direct participation in hostilities does not affect the combatant/civilian status of PMSC personnel.70 For the purposes of attribution, in each case it would need to be established that PMSC activities were planned and co-ordinated with those of state armed forces, and for the purpose of achieving the objectives of the state. If they are under the command of state organs during military operations, and have a common goal with the military, that

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(1975) 2 YBILC 80, para. 32. This passage occurs in the discussion regarding the responsibility of states for the conduct of persons not acting on behalf of the State. See Ch. 4, section B below for an extensive discussion on direct participation in hostilities and status.

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situation could justify the recognition of PMSCs or their personnel as groups or individuals assimilated to state organs. Accordingly, the closer the PMSC and its employees are to the institutional structure of the state, the more readily such a conclusion can be upheld.71 Perhaps not so easily, however, if the goal of the PMSC as a company is above all to make a prot, even if some of its personnel are motivated by identication to a greater cause. In cases where state armed forces are subordinate to PMSCs employees, the argument for recognition of their factual status as organs of the state will be even more compelling. Indeed, it would mean that PMSC employees were so integrated into the state apparatus that they could be in positions of leadership over the states army.72 It has been argued that in some instances, this role reversal has occurred in practice. For example, in the Report of the Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade (hereinafter the Fay Report), it was suggested that contractors implicated in the Abu Ghraib abuses might have supervised government personnel.73 In such circumstances, a case can be made that such individuals were acting as, or as part of, an organ of that state. Again, we reiterate that this conclusion is not determinative for combatant status. The participation of PMSCs and state armed forces alongside one another in an armed conict occurred in the case of the employees of EO in Angola where, wearing some military uniforms, they participated in hostilities alongside the Angolan armed forces.74 In such circumstances, it may seem that the PMSC and its employees are indistinguishable from the states own armed forces, and can for legal purposes be equated with them. It may seem that the same could be said for the activities of EO in Sierra Leone, where the employees of the PMSC devised and carried out the armed attacks on the behalf of the government against the rebels.75
71 72

73 74

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McDonald, Ghosts in the Machine, p. 397. See however Carsten Hoppe, who seems to consider that, as in such situations there is no longer a relationship of subordination of the company vis--vis state agents, it is not possible to consider them de facto organs under Art. 4: Passing the Buck, p. 991. Fay Report, p. 52. See Lehnardt, Private Military Companies and State Responsibility, p. 150. Singer, Corporate Warriors, pp. 10710. According to Singer, Executive Outcomes deployed the same month, with most of its troops own directly from Angola (no passports or visas required). The force brought its own aircraft and was matched up with uniforms, weapons, and armoured vehicles, provided by the government. Ibid., pp. 110 ff. Note, however, that according to the president of EO, their forces were ofcially incorporated into the State armed forces of each of those States at the time. (Correspondence between the authors and Eeben Barlow, on le.) For the authors, this ofcial incorporation is decisive.

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However, other aspects of these cases demonstrate that even here one must not be quick to draw a conclusion that these PMSCs can be equated with state organs. In the case of EO in Sierra Leone, for example, the company continued to provide services to the state during and after a coup which obviously affected the command of the military.76 Thus, it is unclear who it was taking orders from, and it may well have been operating for its own purposes.77 In addition, in that case and in the case of another PMSC involved in Sierra Leone, the contract was nanced at least in part by mining companies and the PMSCs continued to operate despite the fact that they were not paid by the government and/or payments were revised signicantly downwards,78 thus weakening the element of creation as an actor in the conict through the contract discussed above. Although these cases provide only anecdotal evidence regarding this theory, they are nevertheless illustrative of the complex circumstances present in situations where a state is so dependent on private forces and of the diffusion of control where commercial actors may also play a signicant role.79 In such circumstances, the likelihood that a private, commercial actor will be completely dependent on the state is slim, in our view. In considering the second situation examined by the ICJ in Nicaragua, we could imagine circumstances where the armed forces of a state are not participating directly in military operations with a PMSC but where all the PMSCs activities, its military operations, its strategy (general plan) and tactics (specic cases), are wholly devised by the state that uses it. In these circumstances, the total subordination, or the complete dependence of the PMSC on the state is probably the most compelling factual basis on which to assert that PMSCs and their employees can be equated with organs of the state concerned. Such control in all elds related to the PMSCs contracted activity means that the PMSC and its members are not autonomous from the armed forces or other organs of the state. Here again, the PMSC is just an instrument through which the state carries out its activities. In practice, however, states more frequently put out a call for
76 78 77 See Avant, The Market for Force, p. 89. Ibid. Ibid., pp. 8791. Avant notes that EO was eventually paid $15.7 million from a $35.3 million contract (p. 90). Ibid., p. 97. See also Lehnardt, Private Military Companies and State Responsibility, p. 150. She asserts, The relationship between PMCs and the military is described as one of informal co-ordination, consisting of regular meetings to share information and co-ordinate and resolve conicts in operations. Contractors have reportedly erected unauthorized checkpoints and claimed to have the power to detain and conscate identity cards, apparently, without the knowledge of the commander in the theatre.

79

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tenders complete with an operational plan for providing security of a zone or object and PMSCs propose and, if selected, implement their strategy. Many PMSCs are what is known as civilians accompanying the armed forces. In particular, these may be contractors providing logistics services, catering or carrying out construction work. They are subject to regulations or instructions issued by the contracting state and they implement obligations set out in contracts that run to hundreds of pages in length.80 In practice, oversight of their work has been found extremely lacking, suggesting that control over them does not meet the level required by the test described above but this may be merely a matter of current fact.81 Do these factors mean that logisticians or construction workers in PMSCs must be attributed to states as equated with organs of the contracting state according to the test set out above? In our view, the answer is no. When a PMSC is contracted to provide a specic service for a state or its armed forces, the obedience required of it is nevertheless limited to the terms of the contract. A PMSC contracted to build a military base would be completely within its rights to refuse orders of a states uniformed ofcers to also provide armed security for that base if that task was not already set down in the contract. There are indeed examples of PMSCs contracted to provide training for a states armed forces refusing to lead military operations or to provide force protection security during such training as, in their understanding of their contractual obligations, such tasks fell outside of what they were required to do.82 These examples illustrate the qualitative difference a state has in control over one of its own organs and control over a company: a state soldier
80

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E.g. see the US DoD Instruction 3020.41 (Contractor Personnel Authorized to Accompany the U.S. Armed Forces, 3 October 2005), www.dtic.mil/whs/directives/corres/pdf/ 302041p.pdf. At point 6.2.6, the Instruction stipulates, geographic Combatant Commanders, with assistance from their Component Commanders and applicable DoD Agencies, are responsible for overall contractor visibility within their AOR and integrating contractor support into OPLANs and OPORDs according to Joint Publication 40. At point 6.3.2, it says, geographic Combatant Commanders may place specic restrictions on locations or timing of contractor support based on the prevailing operational situation, in coordination with the Component Commands and applicable DoD Agencies. At point 6.3.3, it stipulates that a contracting ofcer supervises the activities of the contractors on behalf of the state and that in exceptional circumstances, the military command can issue lawful orders which contractors must obey. See esp. the opening statement of Senator Carl Levin to the US Senate Committee on Armed Services, Contracting in a Counterinsurgency, pp. 513. Deborah Avant relates the case of Gurkha Security Guards in Sierra Leone in 1995 refusing to provide exactly such services despite the demands of the Sierra Leonean president: The Market for Force, pp. 846.

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who was normally on kitchen duty could not lawfully refuse orders to carry out other (lawful) duties as required by superior ofcers. This is a crucial difference, as the state is limited to the terms of the contract in what it can order contractors to do.83 A situation where the only terms of the contract are that the PMSC agrees to follow any and all commands of commanding ofcers of the armed forces is quite unimaginable. Therefore, one cannot conclude that a state controls contractors in the same way that it controls its own organs. The case law indicates that if contractors are given even a qualied, but real margin of independence in their execution of their tasks (according to the standard set by the ICJ) it may not be possible to equate them with state organs. If PMSCs undertake short-term or limited obligations on behalf of the state, which do not require their employees to be involved continuously in activities within the state structure, they are unlikely to be considered state organs, especially on the basis of a single activity. Also, if the entity concerned enjoys autonomy in the exercise of its activity, it cannot be considered merely an instrument in the hands of the state which engages it, according to the expression used by the ICJ in Nicaragua such that Article 4 ASR will not be applicable. Finally, we note an additional complication in applying this test to an actor such as PMSCs. Indeed, if part of a PMSC could be equated with a state organ on the basis of this test, what does that mean for the many other divisions of the PMSC that cannot be considered to be completely dependent on a state? In summary, two categories of state organ can be established in accordance with the principle set out in Article 4 ASR. The rst category is dened by the state itself under its internal laws, which is then recognized as a fact in international law, while the second category is autonomously determined by international law with reference to the states practice regarding the private entity. In either case, the conduct of these entities can engage the responsibility of the state for which they act, but this will only be the case if the conduct concerned is the type of conduct by a state organ that can be attributable to the state. It is
83

This is acknowledged and described as a potential problem of exibility in the DoD Instruction 1100.22 (Policy and Procedures for Determining Workforce Mix, 12 April 2010), Enclosure 5 2.d.(3)(a) (at pp. 501), www.dtic.mil/whs/directives/corres/pdf/ 110022p.pdf. According to that Instruction, in emergency situations commanders can order contractor civilians to carry out certain lawful functions, but they may not require PMSCs to carry out inherently governmental functions or things that are not already in the contract.

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therefore relevant to consider the scope of state responsibility for the conduct of state organs.

The scope of state responsibility under Articles 4 and 7 ASR

2.1 The general regime of state responsibility for de jure organs Article 4 ASR establishes the principle of the responsibility of states for the acts of their domestic organs; however, in international law, an organ does not engage the responsibility of the state for all of its conduct. A subtle distinction is made between conduct adopted with the appearance of state authority and other activities. Article 7 ASR84 deals with this issue by stating that The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.85 Acts and omissions of state organs are imputable to them as long as they act in their ofcial capacity. The fact that the agent was not competent to carry out the act in question, contravened specic instructions or exceeded the authority conferred on it in doing so is irrelevant for the purposes of attribution. It is also irrelevant whether they violate domestic law when carrying out the unlawful act. Acts carried out in an ofcial capacity can be dened as those acts carried out by persons cloaked with governmental authority.86 In the Caire case, where a French national was taken to local barracks and killed by two Mexican military ofcers, the arbitral tribunal held that, although the arrest of Mr Caire was done for the private purpose of extorting money from him, Mexico was responsible for the acts of the two ofcers since they acted under cover of their status as ofcers and used means

84

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86

Of course, this article also applies to conduct attributable under Art. 5 ASR but we prefer to discuss the rule here in light of Art. 91 AP I, which is only relevant for de jure state organs. This echoes the formulation by the Inter-American Court of Human Rights in Velsquez Rodrguez v. Honduras, which the ILC Commentary on Art. 7 also cites: Velsquez Rodrguez v. Honduras, Judgment, Inter-American Court of Human Rights, Series C, no. 4, 29 July 1988, para. 170 (Velsquez Rodrguez). Petrolane, Inc. v. The Government of the Islamic Republic of Iran (1991) 27 IranUSCTR 64.

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placed at their disposal on account of that status.87 In that case the ofcers had used their insignia to arrest him as if they were in fact acting on behalf of the state. Likewise, in the Malln case, Mexican military ofcers used their insignia to access an American family trying to escape from a hostile crowd, and then handed them over to be killed by an angry mob. The state of Mexico was held responsible for the acts of the ofcers, even though the ofcers were in fact sent by their superiors to protect the family.88 The Court held that it was their appearance of acting in an ofcial capacity that enabled them to gain access to the family. The criterion of acting with the appearance of public authority is used to avoid holding states responsible for the acts of its agents or the personnel of its organs in their private capacity.89 The state will not be responsible for such private acts even if persons or entities have used means (such as rearms) placed at their disposal by the state.90 The real trigger for attribution is not the means the organ uses to complete the unlawful act, but rather whether or not a person acts as if he or she was on duty on behalf of the state.91 The example often quoted is that of a policeman who nds his wife and her lover in his house and kills the latter using his state-issued weapon. The state would not incur responsibility merely for the fact that the ofcial weapon was used. It would need to be ascertained that the policeman, acting as a state ofcer, had used this authority to commit the crime, for example by arresting the lover by showing his police insignia, before killing him. Some illustrations with regard to PMSCs can be given presuming, for the sake of argument, that the PMSCs in question are organs of a state, or equated with such organs. For example, if a private guard tortures prisoners under his authority as part of the hierarchy of a states prison facility, the state will be responsible for his conduct even if it gave him only lawful instructions that did not condone torture. On the other hand, even if a PMSC employee is fully incorporated into a states security
87

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90 91

Estate of Jean-Baptiste Caire (France) v. United Mexican States (1929) V RIAA 516, at 531 (Caire case). Francisco Malln (United Mexican States) v. United States of America (1927) IV RIAA 173, at 175 (Malln case). In Caire, the tribunal excluded the states responsibility for the acts of its de jure organs in circumstances where the act had no connexion with the ofcial function and was, in fact, merely the act of a private individual (p. 531). See the examples given in (1975) 1 YBILC 22 and 24. I. Brownlie, Principles of Public International Law, 6th edn (Oxford University Press, 2003), pp. 4356.

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forces, his actions will not be attributable to the state under Article 4 ASR if, while off duty, he uses his state-issued weapon to kill another man who happens to infuriate him in a nightclub.92 The criterion of appearance of authority may seem difcult to apply to PMSCs, mainly because their employees do not always wear the most obvious symbol of authority military uniforms although their clothing is often similar to that of the military.93 The wearing of uniforms by PMSCs especially by those who are civilians accompanying the armed forces is discussed in more detail below.94 Nonetheless, even if they do not wear such clear signs of authority, the simple fact of wearing clothing which seems to confer on them an ofcial capacity, or acting in a way normally associated with state authority, such as carrying arms, giving orders to the public, or operating checkpoints, may be sufcient for the purpose of attributing acts committed in a private capacity.95 Arguably, the evidence required is that of appearing to act under the authority of the state, not the actual authority to do so.96 In addition, according to the ILC Commentary, under Article 7 ASR, states can be responsible for the conduct of ofcials in their private capacity when the conduct complained of is systematic or recurrent, such that the State knew or ought to have known of it and should have
92

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Note that we refer here only to off duty acts under Art. 4 ASR; see below for a discussion of off duty acts under Art. 91 AP I. Examples of lethal criminal acts that occurred in the private capacity of PMSCs include the killing of James Kitterman in the Green Zone of Baghdad, allegedly by contractors, and the killing of two other contractors by a third, Danny Fitzsimmons, also in Baghdad. See S. Jones and M. Chulov, Briton Held on Murder Charges after Iraq Shooting, The Guardian, 10 August 2009, p. 1. These examples are merely designed to show the types of acts under consideration; we by no means wish to imply that the contractors in question may be equated with organs of the contracting states. See the Daley and Menten cases. We recall that we are dealing only with PMSCs that are state organs here. See Ch. 4, section A below. Note that in the case of the United States, civilians accompanying the armed forces (constituting many of those who would be considered to be integrated into the armed forces of a state) are a priori not supposed to be permitted to wear uniforms. See DoD Instruction 3020.41. E.g. it has been suggested that contractor bodyguards protecting L. Paul Bremer, the head of the US civilian authority in Baghdad, wore uniforms resembling those worn by the army: C. Bourge, Can Private Firms Bring Peace? UPI (26 August 2003), quoted in J. R. Heaton, Civilians at War: Reexamining the Status of Civilians Accompanying the Armed Forces (2005) 57 Air Force L Rev 155208, 187. Again, however, we note that this alone will not be decisive for whether such individuals have combatant status under IHL. Malln case at 175. In that case, although the ofcer used his authority abusively, Mexico was held responsible because of the appearance of authority that he displayed in the commission of the unlawful act.

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taken steps to prevent it.97 If a state has thereby implicitly authorized or accepted the conduct, those unlawful acts will eventually be attributable to it. As such, a repetitive or systematic pattern of violation of human rights or humanitarian law by a PMSC or its personnel incorporated into its armed forces, even if committed for private reasons, may be attributable to the state that has contracted them. Articles 4 and 7 ASR will mainly be relevant in the rare cases in which PMSC employees are treated as state organs because of their factual inclusion in the state structure. The case law examined above emphasizes that, for the most part, this occurs when armed groups are equated with state armed forces be they police or military forces. Article 91 AP I to the Geneva Conventions of 1949 deals with the responsibility of the state for the activities of state military armed forces. We will consider its application to PMSCs and their members considered as state armed forces. We reiterate that, at present, only very rarely may PMSCs be considered to come within this category.

2.2 Is there a special responsibility for armed forces in times of international armed conict? Article 91 AP I states: A Party to the conict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.98 The main issue for present purposes is whether Article 91 AP I alters or extends the normal regime of state responsibility with regard to the acts of a states armed forces. Prior to discussing this rule, it is essential to clarify what is meant by armed forces, especially in view of our discussion regarding private entities that may be equated with state organs above. We reiterate that it is imperative not to elide the two notions. The fact that an entity may be equated with an organ of a state and that it has functions related to the military does not mean that that entity (or its personnel) thereby comprises part of the armed forces of the state for the purposes of IHL. That determination must be made separately according to the rules of IHL. As we explain in detail in Chapter 4 below, in our analysis, in the
97 98

ASR with Commentaries 2001, p. 46, para. 8. See also Art. 3 of Hague Convention (IV) respecting the Laws and Customs of War on Land (1907): A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.

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vast majority of cases PMSCs do not full the specic IHL condition of belonging to the state with a ghting function necessary in order to be considered members of the armed forces. Thus, even if some PMSCs may be equated with state organs according to the reasoning described above, the specic rule in Article 91 AP I applies only to those PMSCs who are members of the armed forces. As for the reach of Article 91 AP I, there are two schools of thought. According to one, Article 91 merely reects the normal regime of state responsibility outlined above, catching ofcial acts, ultra vires acts and systematic or recurrent conduct of a states armed forces. This indeed appears to be the position of the drafters of the International Committee of the Red Cross (ICRC) Commentary on Article 91 and others.99 Even if one accepts this narrow interpretation of Article 91 AP I, at least in wartime and with regard to acts governed by international humanitarian law, members of the armed forces are always on duty and never act in a purely private capacity.100 Thus, the question of whether PMSC personnel are acting in their public or private capacities would not be relevant (provided, of course that they are actually incorporated into military forces). In such circumstances, like the regular military forces, they would be regarded as always on duty. There is also a broader interpretation of Article 91 AP I, which considers that it embodies a lex specialis within IHL on the question of state responsibility.101 Sound legal and practical reasons underpin this interpretation. In particular, the clear wording of Article 91 afrms the
99

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Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, p. 1057; Micaela Frulli, When Are States Liable Towards Individuals for Serious Violations of Humanitarian Law? The Markovi Case (2003) 1 J Intl Crim Justice 40627, 415; Nathalie Klein, State Responsibility for International Humanitarian Law Violations and the Work of the Eritrea Ethiopia Claims Commission so Far (2004) 47 German Ybk Intl L 21466, 219. The ILC Commentary on Art. 7 ASR interprets Art. 91 AP I as evidence of the rule contained in Art. 7. See Commentary on Art. 7 ASR with Commentaries 2001, p. 46, para. 4. Marco Sassli, State Responsibility for Violations of International Humanitarian Law (2002) 84 Intl Rev Red Cross 40134, 406. See A. J. J. de Hoogh, Articles 4 and 8 of the 2001 ILC Articles on State Responsibility, the Tadi Case and Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia (2001) 72 British Ybk Intl L 25592, 284; Nieminen, Attribution and Abu Ghraib, p. 296; Knut Drmann, Individual and State Responsibility in the Field of International Humanitarian Law (1999) 18 Refugee Survey Q 7883, 81; Frits Kalshoven, State Responsibility for Warlike Acts of the Armed Forces: From Article 3 of the Hague Convention IV of 1907 to Article 91 of Additional Protocol I of 1977 and Beyond (1991) 40 ICLQ 82758, 853; Sassli, State Responsibility for Violations of

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responsibility of states for all the acts of their armed forces, and does not distinguish between acts committed in a private capacity or in an ofcial capacity.102 This wider scope of responsibility is supported by the practical context in which the provision applies: in times of armed conict, it is difcult to distinguish whether violent or criminal acts of armed forces are committed in a private or an ofcial capacity, such that the normal rules would set an uncertain and certainly undesirable limit on the responsibility of the State.103 In addition, soldiers are in the category of state organs over which states exercise, or at least should exercise, the strictest control because they are entrusted with the legal capacity to use lethal force against citizens of another state.104 Moreover, they are trained to obey unconditionally the lawful instructions and discipline of the army. The characteristically hierarchical organization of the army, including the powers vested in its commanders to prevent violations of international law by its troops, suggests a much stricter type of state responsibility for the conduct of armed forces.105

102

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IHL, p. 406; R. Bierzanek, The Responsibility of States for Actions of their Own Armed Forces (19812) 11 Polish Ybk Intl L 978; Condorelli, Limputation ltat dun fait internationalement illicite, pp. 1468; Y. Sandoz, Unlawful Damage in Armed Conicts and Redress under International Humanitarian Law (1982) 22 Intl Rev Red Cross 13154, 1367. This was also the view of the ILC when commenting upon an earlier draft of the ASR. See (1975) 2 YBILC 69 (para. 26 on Draft Article 10). See also Hannah Tonkin, State Control over Private Military and Security Companies in Armed Conict (Cambridge University Press, 2011), pp. 957. Article 31 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, in force 27 January 1980, 1155 UNTS 331. Indeed, interpreting Art. 91 AP I as a mere restatement of the general rules on state responsibility deprives it of any legal effect because armed forces, like any other state organ, engage the responsibility of their state. In addition, Art. 91 AP I was designed to reafrm Art. 3 of the 1907 Hague Conventions, which makes no distinction between acts done in an ofcial capacity and the private acts of state armed forces. Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, p. 1053; S. Boelart-Suominen, Iraqi War Reparations and the Laws of War: A Discussion of the Current Work of the United Nations Compensation Commission with Specic Reference to Environmental Damage during Warfare (1996) 50 Zeitschrift fr ffentliches Recht 225316, 296; Kalshoven, State Responsibility for Warlike Acts of the Armed Forces, pp. 8378, 845; Alwyn Freeman, Responsibility of States for Unlawful Acts of their Armed Forces (1955) 88 Recueil des Cours de lAcadmie de Droit International 335. Kalshoven, State Responsibility for Warlike Acts of the Armed Forces, pp. 8378. Sassli, State Responsibility for Violations of IHL, p. 406; Condorelli, Limputation ltat dun fait internationalement illicite, p. 148; Freeman, Responsibility of States, p. 319; Prasit Aekaputra, International Humanitarian Law and State Responsibility in the 21st Century (2003) 3 ISIL Ybk Intl Humanitarian & Refugee L 99. Bierzanek, The Responsibility of States, pp. 978.

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The view that state responsibility extends to all the acts of armed forces, as a lex specialis, is also supported by case law.106 According to this interpretation, international law does not make a distinction between acts committed in an ofcial capacity and those committed in a private capacity for the purpose of attributing the conduct of their armed forces to states in periods of international armed conict. All the acts committed by armed forces during an international armed conict are deemed attributable to their state. According to this interpretation, for example, a PMSC employee incorporated into the armed forces who shoots a civilian during a party (while not on duty) would still engage the responsibility of the contracting state for this conduct if it occurs in an international armed conict.107 *** In summary, Article 4 ASR encompasses two situations whereby the conduct of a PMSC or its employees can be attributed to the state. The rst scenario is not legally problematic, although its practical value may be low: in each case it needs to be established that a state has created a PMSC as a state organ under domestic law, or that it has incorporated a previously existing PMSC or its personnel in its organs according to its domestic law. Then the state will bear responsibility for any unlawful conduct of these entities or persons if it is carried out with the appearance of authority. If the PMSC personnel under consideration are classied by the state as members of its armed forces, then there will be no need to consider whether or not the unlawful acts were ultra vires or committed off duty, as the state will bear responsibility for all of their conduct. In the second scenario, in some circumstances, international law may characterize a rm or its personnel as organs of the state, even if that status does not ow from internal law. In our view, this does not make them members of the armed forces of that state, but makes the state responsible for their conduct as for that of de jure organs. The rule of responsibility for all acts under Article 91 AP I would therefore not necessarily apply to PMSCs equated with a state organ.
106

107

See M. Huber in British Claims in the Spanish Zone of Morocco (1925) II RIAA 615, at 645. See also Congo v. Uganda, para. 214. The ICRC study on customary rules of IHL considered that the rule in Art. 91 AP I is a customary rule which applies both in international and non-international armed conicts. Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Customary International Humanitarian Law, 2 vols. (Cambridge University Press, 2005), vol. 1, p. 545 (Rule 150).

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We now turn to Article 5 ASR, according to which a state can only be responsible if the entity has been delegated elements of governmental authority.

The attribution to states of acts of PMSCs under Article 5 ASR

Article 5 ASR stipulates:


The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.

Although the rule expressed by Article 5 ASR has gained special relevance in light of the current phenomenon of privatization of state functions, the rst attempt to formulate it dates back to 1930.108 Article 5 ASR, like Article 4, is based on the notion that states have the freedom to structure their institutions and organs as they see t but that, having done so, the state bears the consequences of its decisions. This includes any consequence of choosing to entrust private companies with the exercise of elements of governmental authority.109 From the standpoint of international law, the state remains a single unit and the mere outsourcing of powers and functions does not allow it to escape its responsibility.110 In the following discussion, we will clarify that PMSCs can indeed be an entity for the purposes of Article 5 ASR. We will then canvass the debate regarding what the ILC meant by empowered by the law of the state with respect to PMSCs. Finally, we will explore in detail what constitute elements of the governmental authority and apply the available denitions to PMSCs. This is a particularly difcult
108 109

110

See also ASR with Commentaries 2001, para. 3 of the Commentary to Art. 5. Condorelli, Limputation ltat dun fait internationalement illicite, p. 62; Nieminen, Attribution and Abu Ghraib, p. 298; N. Okany, State Delegation of Public Functions to Private Entities: A Basis for Attribution under the Rules of State Responsibility in K. Koufa (ed.), State Responsibility and the Individual (Athens: Sakkoulas, 2006), p. 339; B. D. Smith, State Responsibility and the Marine Environment: The Rules of Decision (Oxford: Clarendon Press, 1988), p. 26. Yeager v. Islamic Republic of Iran (1987-IV) 17 Iran-USCTR 92, at 11011 (Yeager case). See also (1971) 2(1) YBILC 256, para. 170; Cabal and Pasini v. Australia, Communication No 1020/2001, UN Doc. CCPR/C/78/1020/2001 (2003), para. 7.2. Smith, State Responsibility and the Marine Environment, p. 27.

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exercise given the considerable debate surrounding the notion of governmental authority itself. 111

A PMSC as an entity empowered by internal law

1.1 A PMSC as an entity according to Article 5 The word entity used by the ILC was dictated by the need to nd a word that was able to encompass the various kinds of bodies which may be entrusted by states to exercise elements of governmental authority.112 All types of entities, be they private, public, or semi-public, may be covered by Article 5. It is not relevant whether a private entity may be owned or funded by a state, or whether it has been created and is owned entirely privately. This means that PMSCs can potentially be entities under Article 5 ASR. It is also worth mentioning that the ILC Commentary refers expressly to private security guard companies as being entities under Article 5.113 According to Article 5, the notion of entity in this article should not apply to those entities already covered by Article 4 ASR as it covers only those not an organ of the state under article 4. Our interpretation of Article 4 covers the rare case of entities assimilated into the state structure in practice so that they may be equated with state organs. The distinction between Article 5 entities and Article 4 entities equated to state organs is that those covered by Article 5 should be autonomous from state organs. They do not have to be dependent on the state to exercise the functions that are conferred on them; rather, they may be free to carry out these functions within the powers delegated to them. According to the ILC Commentary, [f]or the purposes of article 5, an entity is covered even if its exercise of authority involves an independent discretion or power to act; there is no need to show that the conduct was in fact carried out under the control of the state.114 This condition reects the parastatal nature of the entities covered by Article 5. Although they may be responsible to the government, the entities designated under Article 5 may have the power of decision-making on when and how to act, in conformity with the terms of the contract delegating

111 112 113

Okany, State Delegation of Public Functions to Private Entities, p. 343. Commentary on Art. 5 ASR with Commentaries, p. 43, para. 2. 114 Ibid. Ibid., p. 43, para. 7.

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the exercise of elements of governmental authority.115 There can be a ne line between delegating state powers and simply hiring human resources. Therefore, Article 5 will be relevant when a PMSC is empowered to exercise a delegated governmental function, including some discretion to control the way it exercises that power, such as being responsible for operating checkpoints and determining whether persons may pass, or any other functions exercised with elements of governmental authority.116 The other question relevant to the entity referred to in Article 5 is the manner in which it has been empowered to exercise elements of governmental authority.

1.2 The empowerment of the PMSC to exercise elements of governmental authority The questions arising from a consideration of the manner of delegation of governmental authority to an entity are myriad. Can a contract alone be sufcient to consider that a PMSC has been empowered by a state under its national laws to exercise elements of governmental authority, as specied in Article 5 ASR? What degree of specicity is required of the national law to empower a PMSC with governmental authority? As summarized by Emanuela-Chiara Gillard, the main questions are:
Do the delegated functions, as well as the manner in which they are to be performed, have to be specically identied? Does the company have to be specically named or is it sufcient to lay down criteria that companies must meet to be allowed to carry out the activity in question? Are instruments setting out the types of activities that may be delegated, as well as general guidance for the performance and oversight thereof like the US Department of Defense directives on contractors and workforce mix sufcient?117
115

116 117

One author contends that the entities concerned should not be exercising elements of governmental authority in subordination to a states organs and is thus sceptical about the applicability of Art. 5 ASR to the activities of PMSCs employed at Abu Ghraib prison in Iraq: Nieminen, Attribution and Abu Ghraib, pp. 299300. However, the Commentary on Art. 5 ASR merely says that such control is not necessary. It does not say that subordination would render the article inapplicable. Indeed, the relatively high level of direction and control or complete dependence required by Arts. 4 and 8 ASR mean that that level of control may not always be met, so that interpreting Art. 5 as requiring complete independence for the entity would mean many delegations of governmental authority would not be attributable to the state because they do not confer enough discretion on the entity for Art. 5 but are not sufciently controlled for Arts. 4 and 8. This clearly cannot be the case. Nieminen, Attribution and Abu Ghraib, pp. 2989. Emanuela-Chiara Gillard, Business Goes to War: Private Military/Security Companies and International Law (2006) 88 Intl Rev Red Cross 52572, 555.

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The ILC Commentary does not provide clear guidance as to whether empowered by the law of that State encompasses the use of a contract. Moreover, confusion can arise from the use of the expression empowered by the law because law can mean both a specic law and a legal order. But the latter sense seems to be the one contemplated by the ILC in drafting Article 5. The French version of the provision certainly conforms to this interpretation, by making reference to le droit interne (the legal order) and not to lois internes (specic laws).118 Therefore, Article 5 seems to require only the capacity within the legal order of the state to delegate governmental authority to non-government entities or, in other words, to outsource some governmental functions and authority. ILC Special Rapporteur James Crawford took this approach in 1998, saying, the usual and obvious basis for that exercise will be a delegation or authorization by or under the law of the State,119 thereby implicitly accepting that there may be a range of different mechanisms available under the law of the state, including specic laws (authorization by such laws) or a more general capacity to make such a delegation or authorization (under the legal order of the state). If a general authorization to delegate is made available to a government under the laws of the state, then any actual delegations based on that general authorization will be sufcient for the purposes of Article 5. This can include laws such as statutes, regulations, orders and bylaws made under the legal authority of the state, and any delegations made under that legal authority, including charters, operating licences, concessions and contracts between governments and private companies. Providing they involve the empowerment of an entity (not being an organ of that state) to exercise elements of the governmental authority (that is, a delegation of governmental authority), one or more such mechanisms will be sufcient for the purpose of attribution under Article 5.120 This is not to argue that a contract per se can be considered a law of the state, although the ILC Commentary is not especially clear on this issue. It simply refers to the case of private security guards contracted to run prisons.121 Based on similar reasoning to the above analysis of
118 119

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121

As pointed out by Kees, Privatisierung im Vlkerrecht, p. 82. James Crawford, First Report on State Responsibility by Mr. James Crawford, Special Rapporteur, Addendum (1 May 1998) UN Doc. A/CN.4/490/Add.6, Art. 7, p. 3, para. 4. M. Spinedi, Private Contractors: responsabilit internationale des entreprises ou attribution ltat de la conduite des personnes prives? (2005) 7 Intl L Forum du droit international 27380, 277; Kees, Privatisierung im Vlkerrecht, p. 82; Okany, State Delegation of Public Functions to Private Entities, p. 336. ASR with Commentaries 2001, p. 43, para. 2.

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Article 4 ASR, however, it is here suggested that a contract per se cannot be considered part of the law of the state.122 It may be an instrument authorized by law, which has legal effect in the national legal order, but it cannot be equated with the legal order of the state. The ILC, by stating that the entity has to be empowered by the law of that state, seems to consider the requirement of express authorization under national law to be an indispensable condition for the application of Article 5 ASR. According to that approach, if domestic law does not contain a specic rule concerning the delegation of elements of governmental authority, and the state nevertheless decides to confer such powers on PMSCs, the state will not be responsible under Article 5. On the other hand, however, it should be recalled that national law is just a fact in the international legal order, and that a state cannot invoke the lacunae of its domestic order to escape the reality of the fact that it has outsourced governmental functions relevant to its international obligations.123 It can also be argued that in such cases the state has exercised its prerogative to interpret its own laws as authorizing the outsourcing or, alternatively, that the state has knowingly derogated from its own laws. In either case the state is not relieved of international responsibility for allowing PMSCs or other private entities to exercise its governmental authority. Whatever the theoretical position, the IranUS tribunal disregarded the requirement of an express provision enabling private entities to exercise elements of governmental authority for the purposes of attribution. The Court considered the mere knowledge and tolerance of the ongoing exercise to be sufcient for the purpose of attribution, without requiring the existence of a specic legal basis. The tribunal held, Under international law Iran cannot, on the one hand, tolerate the exercise of governmental authority by Komitehs or Guards and at the same time deny responsibility for wrongful acts committed by them.124 Even the ICJ seems to concur with this reading of Article 5. In the case concerning Armed Activities on the Territory of the Congo, the Court referred to the exercise of elements of governmental authority on behalf
122

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Gillard, Business Goes to War, p. 555. Contra Nieminen, Attribution and Abu Ghraib, p. 298. In the Alabama case, the arbitral tribunal considered that the government of Her Britannic Majesty cannot justify itself for a failure of due diligence on a plea of the insufciency of the legal means of action which it possessed, Moore (ed.), Decision and Award, Alabama Claims Arbitration, p. 656. Yeager case at 104, para. 43.

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of the state as the condition for the application of Article 5, without mentioning the need for empowerment through the domestic legal order.125 It may therefore be argued, as does Alexander Kees, that the requirement under the ASR of a domestic legal authorization is not in conformity with customary international law.126 Consequently, a state outsourcing the exercise of elements of governmental authority to private companies may still be responsible for their conduct, even if the outsourcing was done contrary to, or in the absence of, authorizing national laws. In terms of the degree of specicity required for a state law to be able to empower entities under Article 5, the ILC Commentary notes:
[A]rticle 5 does not extend to cover, for example, situations where internal law authorizes or justies certain conduct by way of self-help or self-defence; i.e. where it confers powers upon or authorizes conduct by citizens or residents generally. The internal law in question must specically authorize the conduct as involving the exercise of public authority; it is not enough that it permits activity as part of the general regulation of the affairs of the community.127

The intention of the ILC here was to reject from the scope of Article 5 actions that private individuals are allowed to take for public purposes under domestic law. For example, some national laws authorize private individuals to arrest persons committing crimes, or to use force in self-defence. While such activities are arguably the exercise of a governmental function, they cannot engage the responsibility of the state under Article 5 when carried out by private individuals. When it comes to the private security industry, however, which relies on a kind of institutionalized use of the right to self-defence as the legal basis for the use of force, it has been argued that the line has been crossed from individualized self-help available to the general public to a practice of governmental authority in the interest of law enforcement.128 The essence of the distinction between that situation and those described in the Commentary to Article 5 lies in the degree of institutionalization of the activity concerned. Private acts done by individuals on the basis of a general authorization in domestic law are occasional,
125 127 128 126 Congo v. Uganda, para. 160. Kees, Privatisierung im Vlkerrecht, p. 83. ASR with Commentaries 2001, p. 43, para. 7. A. P. Kontos, Private Security Guards: Privatized Force and State Responsibility under International Human Rights Law (2004) 4 Non-state Actors & Intl L 199238, 221. See also Nieminen, Attribution and Abu Ghraib, p. 300.

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whereas the exercise of elements of governmental authority as envisaged under Article 5 must be institutionalized; it has to be considered part of the regular activity of the entity which exercises such powers. While this argument is seductive in its logic, it must not be taken lightly. This would mean that the acts of all PMSCs operating on a states territory, not just those contracted by the state, would be attributable to that state, because it is the institutionalized use of a generally available right that somehow creates the delegation of governmental authority. The argument must be that by permitting the institutionalized use of the right to self-defence or citizens arrest to occur by this industry, the state in question has implicitly delegated law enforcement powers to it, whether the PMSC is contracted by a private corporation, a shopping mall, a city council or a private individual. Furthermore, in the absence of even a regulatory scheme governing PMSCs, it would be purely the opportunism of the companies themselves in setting up their business that would lead to such a delegation of governmental authority. In our view, this argument pushes the boundaries of interpretation of empowered by law too far as it turns the state into a purely passive actor despite the fact that it would be deemed to have delegated its law enforcement powers to such actors. On the other hand, if a state were to contract a PMSC to provide security on the understanding that that PMSC would rely on an institutionalization of the right to self-defence in order to carry out its duties, the argument that the state has effectively delegated law enforcement powers may be stronger. We will explore below, however, whether the provision of security services is an exercise of a power of governmental authority. In the context of PMSCs, it is also relevant to enquire whether the authorization that states should provide for civilians accompanying armed forces under Article 4A(4) GC III (in order for those persons to benet from POW status if captured) can be tantamount to an empowerment under the law of the state to exercise governmental authority. For the most part, the types of activities for which this authorization is given (labour units and services responsible for the welfare of the armed forces) do not amount to an exercise of governmental authority. Consequently, the mere authorization itself, even if it were a sufcient legal basis, cannot satisfy all the requirements of Article 5. However, if such authorization were to be given pursuant to Article 4A(4) GC III in relation to an activity of a PMSC that does constitute an exercise of governmental authority, it may indeed sufce as the legal empowerment.

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The elements of governmental authority

Dening elements of the governmental authority is the most challenging aspect in applying Article 5 ASR. Unfortunately, the articles themselves do not dene the term. Generally, policing, military functions, lawmaking and justice are broadly considered to constitute an exercise of elements of governmental authority. Instinctively, one may be inclined to surmise that tasks performed by PMSCs in relation to the armed forces of a state or providing security thus involve elements of governmental authority. However, PMSCs perform numerous tasks, from prosaic catering services in a conict zone to the upkeep and programming of high-tech weapons, not all of which involve exercising governmental authority, but some of which certainly do. Consequently, it is important to attempt to generate a nuanced understanding of the concept in order to have a better idea of which activities are caught by this article. Above, we outlined tasks that seem to be core state activities such that their very outsourcing may contravene international law. Obviously, such activities must necessarily also fall within the denition of elements of governmental authority.129 However, elements of governmental authority must be broader in scope than core state activities, given that the ASR explicitly anticipates that such functions may be outsourced.130

129 130

See Ch. 1, section B 2.1.1.i above. The UN Working Group on the use of mercenaries as a means of violating human rights and impeding peoples of exercising the right of self-determination proposed a list of inherently governmental functions in its Draft Convention on PMSCs of 2010. Art. 2(i) denes inherently state functions as: functions which are consistent with the principle of the State monopoly on the legitimate use of force and that a State cannot outsource or delegate to PMSCs under any circumstances. Among such functions are direct participation in hostilities, waging war and/or combat operations, taking prisoners, law-making, espionage, intelligence, knowledge transfer with military, security and policing application, use of and other activities related to weapons of mass destruction and police powers, especially the powers of arrest or detention including the interrogation of detainees and other functions that a State Party considers to be inherently State functions. See UN Doc. A/HRC/15/25 (2 July 2010). The US governments Commission on Wartime Contracting also grappled with a denition of inherently governmental functions which it would contravene US law to outsource. See Commission on Wartime Contracting, Are Private Security Contractors Performing Inherently Governmental Functions? Hearing 18 June 2010, www.wartimecontracting.gov/docs/hearing20100618_transcript.pdf. That commission was mandated by the US Congress to determine whether providing security in an area of combat operations is inherently governmental. See ibid., p. 3.

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In the following pages, we will rst examine the ILC Commentary on Article 5 and, following that, the opinions of the ILC members involved in its drafting. We will then look at other elds of international law and national law to interrogate the concept of elements of governmental authority. Finally, we will summarize the relevant criteria and attempt to determine what constitutes a function exercised with elements of governmental authority, particularly as applied to the activities of PMSCs.

2.1 Elements of governmental authority in the ILC Commentary on the ASR The Commentary of the ILC concerning the notion of elements of governmental authority is very brief. It states:
Article 5 does not attempt to identify precisely the scope of governmental authority for the purpose of attribution of the conduct of an entity to the State. Beyond a certain limit, what is regarded as governmental depends on the particular society, its history and traditions. Of particular importance will be not just the content of the powers, but the way they are conferred on an entity, the purposes for which they are to be exercised and the extent to which the entity is accountable to government for their exercise. These are essentially questions of the application of a general standard to varied circumstances.131

Accordingly, functions requiring the exercise of elements of governmental authority are to be determined in each specic case by identifying the practice of the state under study. This conclusion is based on the presumption that there is not a common denition of this expression in international law, nor could one extrapolate an abstract denition according to the domestic practice of states as a whole. That conclusion looks astonishing considering that in 1974 the ILCs Special Rapporteur Roberto Ago asserted, If the same public function were performed in one State by organs of the State proper and in another by para-State institutions, it would indeed be absurd if the international responsibility of the State were engaged in one case and not in the other.132 Arguably, Ago seemed to accept that there are some core functions for all states which will normally be considered as exercising elements of governmental authority. Despite its view that no general denition is possible, the ILC has provided some insight into the notion of functions exercised in the

131

ASR with Commentaries 2001, p. 43, para. 6.

132

(1974) 1 YBILC 8, para. 17.

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exercise of governmental authority. The ILC Commentary highlights the following: the content of the powers delegated; the way they are conferred on the entity; the purpose of the delegation; and the accountability of the government for the exercise of the delegated authority.133 This, however, stops short of a denition.134 First, the criterion of the content of the powers delegated appears tautological. Expressed in other words, it says that to determine whether a power conferred on an entity is governmental one has to consider the content of the power. But what criterion does the ILC provide to distinguish between different powers as to what is governmental and what is not? There is no basis for making a distinction between the different powers that may be conferred on a private entity. The second criterion given by the ILC refers to the way the power has been conferred on the private entity. However, knowing the means of devolution of the power concerned gives little indication as to the content of the power, or its nature. It is difcult to understand, without further explanation, what difference it makes to know whether a power has been transferred to a private entity under specic laws or by contract. Thirdly, the ILC has suggested looking at the purpose of the delegation of the power concerned. This seems to be a sound criterion if it means to distinguish between the public interests and the private interest which may be pursued by the exercise of these powers. It is true that governments act in the pursuance of public interests and not for private interests. But not all the actions of a government, accomplished in pursuance of the public interest, entail the use of elements of governmental authority. This is the case for postal services, which clearly pursue a public interest without involving the exercise of elements of governmental authority. So the criterion is useful but not decisive. Moreover, domestic regulation concerning the responsibility or accountability of an entity to a state is a fact in the eyes of international law and, as such, cannot be conclusive as a title of attribution.135 In conclusion, the general
133 134

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ASR with Commentaries 2001, p. 43, para. 6. For a criticism of the ILCs denition of elements of governmental authority within the body of literature on PMSCs, see Lehnardt, Private Military Companies and State Responsibility, p. 145; Kontos, Private Security Guards, p. 214. Maffezini v. Spain, para. 82: The tribunal held: a domestic determination, be it legal, judicial or administrative, as to the juridical structure of an entity undertaking functions which may be classied as governmental, while it is to be given considerable weight, is not necessarily binding on an international arbitral tribunal. Whether an entity is to be regarded as an organ of the state and whether this might

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denition of the elements of governmental authority given by the ILC does not seem to be persuasive, or at least needs more explanation. Reading through the Commentary, one can nevertheless nd some examples of the exercise of elements of governmental authority that relate specically to the activity of PMSCs. The ILC refers to the powers of detention exercised by some private security guards, the powers related to immigration control and quarantine and also the powers related to the identication of property for seizure, or certain police powers.136 Accordingly, a state will be responsible for the acts of a PMSC if it confers such powers upon them, if the interpretation provided in the Commentary is followed.

2.2 Elements of governmental authority in the discussions during the drafting of Article 5 ASR It is difcult to single out the comments related strictly to Article 5 ASR during the ILCs drafting process. This is because the proposed article137 in its original incarnation covered situations that were subsequently hived off into separate articles.138 It is nevertheless both worthwhile and possible to deepen our understanding of the concept by referring to the ILCs debates. Initially, the type of activities that could fall within the scope of this article was construed broadly, essentially encompassing activities

ultimately engage its responsibility, is a question of fact and law to be determined under the applicable principles of international law.
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See also Yeager at 11011; (1971) 2(1) YBILC 256. ASR with Commentaries 2001, p. 43, paras. 2 and 5. Ago proposed the (then) Art. 8 which stated, The conduct of a person or group of persons who, under the internal legal order of a State, do not formally possess the status of organs of that State or of a public institution separate from the State, but in fact perform public functions or in fact act on behalf of the State, is also considered to be an act of the State in international law. (1971) 2(1) YBILC 267, para. 197. The provision was originally drafted to encompass the case of a private entity acting on behalf of the state (which later became Art. 7 ASR), the situation of private persons exercising public functions and also the responsibility of the state for private persons exercising public functions in exceptional circumstances (which later became Art. 9). In addition, the term public functions which was the trigger for the application of that article was also contained in the draft of the (then) Art. 7, which dealt with public institutions of territorial entities according to the internal law of the state (which were included in Art. 4 on de jure organs). ILC discussions seem to establish a continuum between them. The nal version of the ILC project merged the two categories of public institutions performing governmental functions and private entities doing the same. As such, we rely on the comments relative to the notion of public functions in the former Art. 7 and those for former Art. 8.

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accomplished in the interests of the community.139 The examples given by the ILCs Special Rapporteur in 1971 of a state entrusting private persons with providing a public service included private businesses engaged to provide public transport, postal communications or some other public service. He continued, non-ofcial associations or groups of private persons may be used as auxiliaries in ofcial health units, the police or the armed forces; drivers of private vehicles may be used to carry troops to the front, etc..140 The relevant criterion for the attribution to states of activities of entities engaged in such activities, according to Ago, should be the public character of the function or mission in the performance of which the act or omission contrary to international law was committed, rather than the formal link between the State organization and the person whose conduct is in question.141 During the debate which ensued in the subsequent years, members of the ILC searched for ways to narrow that denition.142 The term public was viewed as problematic due to being potentially overly broad. The idea that the article should capture services performed for the community was sustained by some members of the commission143 but public functions were to refer only to specic functions of the state. The key question for one member was whether the act or acts were performed by the organization in the exercise of either a general delegation of governmental authority or a limited grant of that authority.144 Paul Reuter proposed the expression prerogative of public power, considering that where an entity that was not a State entity whatever its status exercised prerogatives of public power, in other words, where it exercised juridical, legislative, judicial, executive, physical or other compulsion, the State might be said to have split up.145
139

140 142

143 145

(1971) 2(1) YBILC 264, para. 191. See also (1971) 2(1) YBILC 256, para. 170 (in respect to public functions with respect to (then) Art. 7). 141 (1971) 2(1) YBILC 263, para. 190. Ibid., p. 264, para. 191. Richard Kearney (1974) 1 YBILC 14, para. 12, and 24, para. 32: As for the term public, it was far too vague in English to serve as a basis for the allocation of state responsibility. He suggested that it be replaced by the term governmental which, although not perfect, was closer to the intended meaning; Paul Reuter (1974) 1 YBILC 16, para. 26; Vallat (1974) 1 YBILC 24, paras. 279. 144 Richard Kearney (1974) 1 YBILC 14, para. 12. (1974) 1 YBILC 25, para. 34. Ibid., p.16, para. 26. Nikola A. Ushakov also considered state powers, which were the powers in question in his view, meant the legislative, judicial or executive power of the state. See (1974) 1 YBILC 25, paras. 34 and 38 and 20, para. 29. Kearney (1974) 1 YBILC 25, para. 34.

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Dening public institutions, Special Rapporteur Ago approved of the concept of public power, and considered that one should not seek to ascertain whether a public corporation was more or less owned by the State; the important point was whether its activities involved exercising prerogatives of public power.146 Eventually, for all relevant articles, a general consensus was established concerning the adequacy of the expression prerogatives of public power or its equivalent governmental functions.147 The discussions on Article 5 ASR after the nomination of James Crawford as Special Rapporteur did not further clarify the notion of elements of governmental authority. This was despite the suggestion made by the UK in its comments on the draft articles, urging the ILC to dene elements of governmental authority. Crawford considered that the commission could try to clarify the concept, but that it should not try to dene it. For him public power could be dened not only through its content but also through its treatment in internal law.148 Ian Brownlie, although also considering it difcult to dene elements of governmental authority, suggested by way of example that the exercise of elements of governmental authority would include, when the running of the prison system [is] entrusted to the private sector or when some of the functions of the army [are] privatized.149 Gerhard Hafner cited the case of central banks in some countries as an example of an entity exercising elements of governmental authority.150 There are a number of notable points arising from the ILCs debate over what became Article 5 ASR. First, the notion of elements of
146 147

148 149

150

(1974) 1 YBILC 278, para. 13. See also para. 16. See e.g. Reuter (1974) 1 YBILC 35, para. 22. Reuter thought that The French expression fonctions publiques seemed ill-chosen, not only because it raised problems of translation into English, but also because it might be thought that in that case, too, the functions in question came within the scope of public power. See also Ushakov, ibid., p. 35, para. 24, where he dened public functions by the exercise of state power. Hambro, ibid., p. 35, para. 27, considered that the use of the word public functions were based on the incorrect perception that there existed a general denition of that notion in international law. He considered that a reference to internal law would be misleading because of the variation it would introduce in the scope of state responsibility, which would depend on the domestic law of each state. As such, he considered that the reference to public function was not appropriate in Art. 8. See also Elias, ibid., p. 36, para. 32; Vallat, ibid., p. 37, para. 2; Pinto, ibid., p. 39, para. 13. (1998) 1 YBILC 229, para. 6. Ibid., p. 231, para. 15; Crawford (1998) 1 YBILC 232, para. 22. Mohamed Benouna wondered if this concept was already well-established or is still in the process of development. Ibid., pp. 2312, para. 21. Ibid., p. 237, para. 29.

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governmental authority was used in preference to the initial proposition suggesting the use of the concept of public functions. This claries the concept because it narrowed the broader category of public functions to include only those that also involved the exercise of governmental authority. That is, it was recognized that not all functions carried out for the common interest are governmental functions. Secondly, reference was made to the general powers of a state, whether legislative, executive, judicial or coercive, as being activities involving the use of elements of governmental authority. Thirdly, the criterion of the domestic legal regime of the activity concerned was also emphasized, even if cursorily. In this regard, an activity was considered to involve elements of governmental authority when the relevant legal regime was different from that of private individual activities. Fourthly, some examples of activities involving elements of governmental authority were given, namely military functions, regulatory powers, central banks, immigration powers and powers of detention, such as in private prisons.

2.3 Elements of governmental authority: insights from international and domestic law Various branches of international law use or refer to the notion of governmental authority as it relates to their eld of interest. Governments also work with their own concept in order to develop policies and regulate matters of internal law. We therefore propose to canvass governmental authority in different contexts to help to esh out the concept but it is not the purpose of the present discussion to assert that there is a general principle of law according to Article 38 of the ICJ Statute that denes the notion of elements of governmental authority. Indeed, the diversity of state practice concerning what they consider to be governmental authority would make such a task particularly difcult, if not impossible. Rather, the aim is to examine some relevant elds of law where the concept, or its near relatives, has been used, and to examine how these may clarify the concept of governmental authority in Article 5 ASR.
2.3.1 Elements of governmental authority in the law of state immunity In the law of state immunity, there is a distinction between acts carried out in the exercise of sovereign power (acta de jure imperii) and acts of the state carried out in a private-law capacity (acta de jure gestionis). Since acta de jure imperii are those acts done by the state as an expression of its sovereignty, they are not to be adjudicated before the courts of other

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states, so as to respect the principle of equal sovereignty of states. Conversely, acts de jure gestionis are those acts which can be done by anyone, and include mainly commercial and private activities, which may be adjudicated in the courts of a state, even if they are those of another state. The relationship between elements of the governmental authority in the law of state responsibility and sovereign acts of the state in the law of state immunity was considered by the ILC during the drafting of both the ASR and the articles that became the Convention on Jurisdictional Immunities of States and their Property.151 While state immunity and state responsibility are not totally analogous concepts,152 it is possible to infer that the criteria for attribution and for immunity are the same.153
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United Nations Convention on Jurisdictional Immunities of States and their Property (UN Convention on Jurisdictional Immunities), adopted by the UNGA 2 December 2004 (not yet in force), UNGA Res. 59/38, annex, UN GAOR 59th Sess., Supp. no. 49, UN Doc. A/59/49. The convention requires thirty ratications to come into force. At present, there are twenty-eight signatories and eleven state parties (6 March 2011). Of those, both Norway and Sweden attached interpretive declarations stating that the convention does not apply to military activities, including the activities of armed forces during an armed conict. Since the commentaries accompany the Draft Articles on State Immunity, we will refer in our text to the Draft Articles rather than the convention. In addition, the ECtHR has held that at least one of the articles relevant for our study (Art. 11) reects customary international law. See Cudak v. Lithuania (App. no. 15869/02) (Judgment) ECHR 23 March 2010, paras. 657. E.g. there are immunities that have no connection with the issue of state responsibility (such as diplomatic immunity and other immunities attached to property); therefore, one cannot conclude that the two concepts encompass the same acts or things. See the statement of Ushakov in (1974) 1 YBILC 25, para. 37. Other members of the ILC drafting committee on state responsibility opposed any analogy between the two, arguing the complete difference between the two elds and the somewhat obscure distinction between acta de iure imperii and acta de iure gestionis: see the statements of Kearney in (1974) 1 YBILC 14, para. 13 and Reuter, ibid., 16, para. 26. In particular, the ILC debated whether a state that has invoked immunity from jurisdiction for a private person or enterprise can later deny responsibility for the same entitys conduct under the law of state responsibility (see (1998) 1 YBILC 244 ff.). If a state extends its immunity to a particular course of conduct by an entity, this constitutes an acknowledgement that the entity is in fact, from an internal perspective, a state organ. See Smith, State Responsibility and the Marine Environment, p. 29. The ICJ dealt with this issue in Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) (Judgment) [2008] ICJ Rep at 244, para. 196: The State which seeks to claim immunity for one of its State organs is expected to notify the authorities of the other State concerned. This would allow the court of the forum State to ensure that it does not fail to respect any entitlement to immunity and might thereby engage the responsibility of that State. Further, the State notifying a foreign court that judicial

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On the direct relationship between governmental authority and sovereign acts of the state, the discussions during the drafting of both sets of articles and their commentaries lead to the conclusion that when a private entity is recognized as a state under the law of state immunity because it is empowered to carry out sovereign acts on behalf of the state, such acts are also an exercise of elements of governmental authority under the law of state responsibility.154 As such, a denition of sovereign acts of the state for the purposes of state immunity could assist in dening governmental authority for our purposes. However, once again we face an absence of a clear denition of sovereign acts of the state (acts de jure imperii) in the Draft Articles on State Immunities. Acts de jure imperii are dened only negatively as those acts which are not accomplished by the state in relation to a commercial transaction. To dene a commercial transaction, Article 2(2) of the Draft Articles on State Immunities states: reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if, in the practice of the state which is party to it, that purpose is relevant to determining the noncommercial character of the contract or transaction. Unfortunately, the Commentary on the Draft Articles on State Immunities does not explain the nature test clearly. In a tautological

process should not proceed, for reasons of immunity, against its State organs, is assuming responsibility for any internationally wrongful act in issue committed by such organs. [Emphasis added.] Such a claim or rule can be considered an acceptance by the state of its responsibility under Art. 11 ASR: Condorelli, Limputation ltat dun fait internationalement illicite, p. 76. See the statements by G. Hafner in the context of the ILC discussion on state responsibility establishing a parallel between the two concepts: (1998) 1 YBILC 237, para. 35. The Commentary to the ASR states, If it is to be regarded as an act of the State for purposes of international responsibility, the conduct of an entity must accordingly concern governmental activity and not other private or commercial activity in which the entity may engage, indicating a parallel between the two concepts. Commentary on Art. 5 ASR with Commentaries 2001, p. 43, para. 5. See also the reliance of the drafters of the Draft Articles on Jurisdictional Immunities on the term governmental authority and prrogatives de puissance publique as appropriate for both domains. ILC, Draft Articles on Jurisdictional Immunities of States and their Property, with Commentaries 1991 (1991) 2(2) YBILC 16, para. 12 (Draft Articles on Jurisdictional Immunities 1991 with Commentaries). See also the Commentary to the Jurisdictional Immunities articles on Art. 2(1)(b)(iv) with regard to state immunity for private persons or entities exercising governmental authority. Draft Articles on Jurisdictional Immunities 1991 with Commentaries, p. 17, para. 15.

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manner, it says, [i]f it is established that it is non-commercial or governmental in nature, there would be no necessity to enquire further as to its purpose.155 Concerning the use of the purpose test, it says:
[d]efendant States should be given an opportunity to prove that, in their practice, a given contract or transaction should be treated as non-commercial because its purpose is clearly public and supported by raison dEtat, such as the procurement of food supplies to feed a population, relieve a famine situation or revitalize a vulnerable area, or supply medicaments to combat a spreading epidemic, provided that it is the practice of that State to conclude such contracts or transactions for such public ends.156

The ultimate test for the denition of sovereign acts of the state seems to be that those acts are supported by the raison dEtat. Under the law on state immunity, states may also claim immunity from suit in the case of contractual disputes related to employment contracts in other states (e.g. embassy staff abroad).157 However, not all such contracts lead to state immunity. Commenting on the relevant Article of the Draft Articles on State Immunities, the ILC afrms that state immunity regarding employment contracts is limited to functions closely related to the exercise of governmental authority and says, [e]xamples of such employees are private secretaries, code clerks, interpreters, translators and other persons entrusted with functions related to State security or basic interests of the State.158 The ILC Commentary seems to list functions that support the exercise of governmental authority as functions that may lead to immunity of the state from suit in the case of a contract dispute with an employee.159 What does this mean for PMSCs? By providing catering services, performing maintenance, constructing bases abroad or acting as translators, many PMSCs support the activities of the armed forces, whose functions clearly fall within an exercise of governmental authority when it comes to conducting military operations and so on. For our purposes, what is important is that such supporting functions are considered only closely related to the exercise of governmental authority. The mere fact
155 156 157 158 159

Draft Articles on Jurisdictional Immunities 1991 with Commentaries, p. 20, para. 25. Ibid., p. 20, para. 26. Art. 11 of the UN Convention on Jurisdictional Immunities 2004. Draft Articles on Jurisdictional Immunities 1991 with Commentaries, p. 42, para. 9. According to the ECtHR (applying the convention as customary law), secretarial services in an embassy do not incur immunity, thus calling into question how broadly one should interpret Art. 11: Cudak, para. 72.

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that a persons activities support activities that actually are an exercise of governmental authority does not transform those supporting functions into elements of governmental authority in themselves.160 As such, PMSCs providing such supporting functions cannot be said to have been delegated the power to exercise elements of governmental authority in relation to those acts. On the other hand, functions that involve the exercise of governmental authority are in part dened as those functions closely related to a states security or its basic interests. In this sense, to wage a war, or to interrogate prisoners in order to gather intelligence about the adversary, are functions exercised with elements of governmental authority. Indeed, the case law on state immunity gives many examples of sovereign acts of states which, on the above analysis, would also be acts done in the exercise of elements of governmental authority. The German Federal High Court held that the exercise of police powers is a sovereign act.161 The Supreme Court of Japan considered that take-off and landing of military aircraft of the armed forces of a foreign state were sovereign acts.162 The Supreme Court of Austria considered that the landing and take-off of military aircraft in a civil airport, although normally considered a commercial activity, were in fact sovereign acts of the state because they were carrying out humanitarian missions on the basis of a binding resolution of the UN Security Council.163 2.3.2 Elements of governmental authority in WTO law Among other possible sources of analogy, some World Trade Organization (WTO) agreements contain references to governmental activities because of the impact these can have on WTO rules. Of special relevance are

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In addition, the article in question specically grants immunity for contracts of employment, such that the link between the government and the employee itself is already established. As such, there would be no gap in terms of state responsibility even if the employee does not exercise functions of governmental authority: Art. 11(1) of the UN Convention on Jurisdictional Immunities. The commentary to the draft articles refers to governmental employees of rank. Church of Scientology (1978) 65 ILR 193 (Federal High Court of Germany (Bundesgerichtshof). See also Schmidt v. Home Secretary of the Government of the United Kingdom [1997] 2 IR 121. X and ors v. The United States of America, Supreme Court of Japan, 14 March 2002, Hanrei Jihou no. 1786, 2002 (2003) 46 Japanese Annual Intl L 161. Flughafen Linz (Airport Linz v. United States of America), Supreme Court of Austria, 2 Ob 156/037, 28 August 2003 (2003) 8 Austrian Rev Intl and European L 430.

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Article I.3 of the General Agreement on Trade in Services (GATS) and Article 9.1 of the Agreement on Agriculture.164 Article I.3(b) excludes from the scope of the GATS services supplied in the exercise of governmental authority. This expression is further explained in Article I.3(c) GATS which afrms that a service supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers. These clauses have yet to be tested through the WTO dispute resolution mechanisms. The meaning of governmental authority in this article is the subject of considerable debate within the WTO Secretariat and among member states.165 In our view, one can question whether this test helps to establish principles in order to dene what is an element of governmental authority, or whether it merely sets the parameters for a purely factual analysis of how a service is provided in a state. Some argue that with respect to the provision of utilities such as water, for example, once it is provided on a commercial and competitive basis, the GATS would apply.166 On the other hand, justice, policing and military functions are generally regarded in this domain as areas where a state must obviously maintain a monopoly.167 However, the thrust of our work indicates that with respect to the latter two, the crux of the issue is dening precisely which activities constitute policing and military functions that ow from governmental authority. For example, since general security services, including patrolling, surveillance, static security and close protection services (i.e. bodyguarding) can be provided to the public (and often are) on a competitive and commercial basis, one can imagine that they would not be exempt from the application of the GATS, although policing powers for the state would be an excluded

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See also the discussion of Art. 5 ASR relative to the WTO by S. M. Villalpando, Attribution of Conduct to the State: How the Rules of State Responsibility May Be Applied within the WTO Dispute Settlement System (2002) 5 J Intl Economic L 393 420, 4048. See e.g. E. Leroux, What is a Service Supplied in the Exercise of Governmental Authority under Article I:3(b) and (c) of the General Agreement on Trade in Services? (2006) 40 J World Trade 34585, 345. See also R. Adlung, Public Services and the GATS (2006) 9 J Intl Economic L 45585; M. Krajewski, Public Services and the Scope of the General Agreement on Trade in Services, Research Paper for Center for International Environmental Law, May 2001, www.gatswatch.org/docs/markus.html. R. Bates, The Trade in Water Services: How Does GATS Apply to the Water and Sanitation Services Sector? (2009) 31 Sydney L Rev 12142, 1378. Adlung, Public Services and the GATS, p. 478.

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public service.168 As such, the provision of security services, for the purpose of the GATS, would not be considered an exercise of governmental authority, whereas other elements of policing activities would be. However, it would be anathema to the concept of justice itself for justice to be doled out on a commercial and competitive basis. When it comes to military activities, another analysis may be appropriate. PMSCs provide services to governments (and other clients) on a competitive and commercial basis. The question for the WTO is not whether such services can be provided to governments on such a basis, but whether their provision to the public is on a commercial and competitive basis. As such, it may be helpful to use this test in another way: one can imagine that if a member of the public cannot legally be a consumer of a particular service, then that service may be closely related to (or may be) an act of governmental authority. However, the very activities of the PMSC industry, illustrated by the following anecdote, highlight the possible pitfalls of this type of reasoning. Apparently, college students in the United States formed a group and raised a signicant amount of money to help in Darfur. Unable or unwilling to send the money directly to the peacekeeping forces on the ground, the students emailed a number of PMSCs to see whether they could hire troops or lease drones to send to Sudan in their private capacity. The companies responded positively, even nding an affordable drone option for the students.169 The students eventually (thankfully) chose a different course of action, but the story shows the dangers of attempting to dene activities involving an exercise of governmental authority purely based on consumer activity. Nonetheless, it would be highly relevant to our analysis that private individuals contracting such services would likely contravene several national laws. In a different WTO agreement, Article 9.1 of the Agreement on Agriculture deals with subsidies provided by governments or their agencies to agricultural producers.170 In applying this article, the Appellate Body sought to dene the notion of government and to distinguish the
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This is commensurate with an analysis of security providers in the context of a different free trade agreement: see the case law of the ECJ on security services discussed in Ch. 1, section C 1.1 above. This story is recounted by Peter Singer in Wired for War: The Robotics Revolution and Conict in the 21st Century (London: Penguin Books, 2009), pp. 2601. Art. 9.1 states: The following export subsidies are subject to reduction commitments under this Agreement: (a) the provision by governments or their agencies of direct subsidies, including payments-in-kind, to a rm, to an industry, to producers of an

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subsidies the state is forbidden to give to its national production from other subsidies coming from other sources. Through its denition of government for the purposes of Article 9.1, the Appellate Body dened (albeit in an incidental manner) the notion which is the topic of our analysis. The Appellate Body considered the functions of governmental character to be those where the state regulates, restrains, supervises or controls the conduct of private citizens.171 Here again, one nds the criteria of exercise of legislative, executive (regulatory), or judicial powers as discussed above. 2.3.3 Elements of governmental authority in Article 6(1) of the European Convention on Human Rights and in the Rome Treaty In their respective spheres, both the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) have been required to dene what constitutes governmental authority. Indeed, for the ECtHR, with the exception of claims relating to due diligence, the admissibility of a claim always incorporates a determination that the act complained of stems from an exercise of government activity, even if that determination is not set out explicitly in the decision.172 One may be tempted to want to distil the contours of the concept of governmental authority from the
agricultural product, to a cooperative or other association of such producers, or to a marketing board, contingent on export performance. The WTO Appellate Body considered, on the basis of a denition of the word government in Blacks Law Dictionary that: [t]he essence of government is, therefore, that it enjoys the effective power to regulate, control or supervise individuals, or otherwise restrain their conduct, through the exercise of lawful authority. This meaning is derived, in part, from the functions performed by a government and, in part, from the government having the powers and authority to perform those functions. A government agency is, in our view, an entity which exercises powers vested in it by a government for the purpose of performing functions of a governmental character, that is, to regulate, restrain, supervise or control the conduct of private citizens. As with any agency relationship, a government agency may enjoy a degree of discretion in the exercise of its functions. Appellate Body Report, Canada Measures Affecting the Importation of Milk and the Exportation of Dairy Products (Canada Dairy), WT/DS103/AB/R, WT/DS113/AB/R, 13 October 1999, para. 97 (emphasis in original). Gustafsson v. Sweden (App. no. 15573/89) ECHR Reports 1996-II and a decision of the commission, MN v. Bulgaria (App. no. 29785/96) ECommHR 4 September 1996, where the commission denied the admissibility of the claims (relating to property), stating there is no State interference where the facts complained of are not the product of an

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ECtHRs case law and, in particular, its decisions on admissibility; however, governmental authority may be a narrower concept than government activity.173 Moreover, the ECtHR directly addresses and denes the concept with regard to a specic line of cases regarding the right to a fair trial. For its part, the ECJ has been called on to dene the concept specically in relation to private security providers in the context of free movement of workers. Article 6(1) of the European Convention on Human Rights (ECHR) provides a right to a fair and public hearing for civil and criminal cases, but states argue that persons exercising the authority of the state should not be allowed to invoke the procedural guarantees conferred by the ECHR against the state with regard to those activities. For some time, the Court accepted this argument to some extent. The Court therefore saw itself compelled to dene what functions entail the exercise of state authority. In Pellegrin, the Court adopted a functional approach to the issue, on the grounds that the ability of a state to deny a civil servant access to a court with regard to employment should be based on the nature of the employees duties. Therefore the Court considered that the function considered should involve the exercise of powers conferred by public law.174 Accordingly, the Court ruled that:
The only disputes excluded from the scope of Article 6 para. 1 of the Convention are those which are raised by public servants whose duties typify the specic activities of the public service in so far as the latter is acting as the depository of public authority responsible for protecting the general interests of the State or other public authorities.175

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exercise of governmental authority but concern exclusively relationships of a contractual nature between private individuals. This is not always a helpful distinction: where an activity involving governmental authority has been outsourced, one could consider that governmental activity is actually narrower than governmental authority. See CUDIH, Expert Meeting on Private Military Contractors: Status and State Responsibility for their Actions (Geneva, August 2005), p. 16 (CUDIH, Expert Meeting on PMCs). However, the idea here is that governments may be active in a broad variety of elds; the mere fact that governments undertake such activities does not necessarily mean that such activities entail an exercise of governmental authority. Pellegrin v. France (App. no. 28541/95) ECHR 1999-VIII, para. 65 (Pellegrin case). This decision was itself a departure from the previous line of reasoning, according to which the ECtHR had previously focused on whether or not the activity concerned was of an economic nature in order to conclude whether it involved an exercise of state authority. See Editions Priscope v. France (App. no. 11760/85) (1992) ECHR, Series A, no. 234-B, at 53, paras. 3941. Pellegrin, ibid., para. 66. The Court conrmed the relevance of the criterion of participation in the exercise of elements of governmental authority in Frydlender v. France (App. no. 30979/96) ECHR 27 June 2000, 2000-VII, para. 33.

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In a recent case, a Grand Chamber of the Court acknowledged the shortcomings of this approach and observed that ascertaining the nature and status of the applicants functions has not been an easy task; nor has the category of public service in which the applicant works always been clearly distinguishable on the basis of his or her actual role.176 As such, the Court has added new elements to its test as to whether an individuals status as a member of the civil service affects that individuals right of access to a court regarding his or her employment, but the requirement that the function involve responsibilities relating to the exercise of governmental authority nevertheless remains pertinent, albeit not determinative of the applicability of Article 6(1).177 In each specic case, the Court stated, it will have to ascertain whether the applicants post entails in the light of the nature of the duties and responsibilities appertaining to it direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interest of the state or of other public authorities.178 For the Court, the manifest example of such activities was provided by the armed forces and the police.179 In addition, while not a civil servant per se, a judge participated directly in the exercise of powers conferred by public law and performed duties designed to safeguard the general interests of the State.180 In Pellegrin, to determine those public workers whose activities implied the exercise of state powers, the ECtHR chose to make reference to the jurisprudence of the (then) Court of Justice of the European Communities (for simplicity known here by its modern name, the ECJ), concerning the interpretation of Article 48(4) of the 1957 Rome Treaty. That provision derogates from the principle of freedom of movement for workers within the European Community area in respect of employment in public service. The European Commission, in a communication of 18 March 1988 made a summary of the case law of the ECJ concerning activities covered by Article 48(4).181 The commission stated:
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Vilho Eskelinen v. Finland (App. no. 63235/00) ECHR 17 April 2007, para. 52. 178 Ibid., paras. 5662. Ibid., para. 66. Olujic v. Croatia (App. no. 22330/05) ECHR 5 February 2009, para. 32. Ibid., afrming Pitkevich v. Russia (App. no. 47936/99) (Admissibility) ECHR 8 February 2001. See also Pridatchenko and ors. v. Russia (App. nos. 2191/03, 3104/03, 16094/03 and 24486/03) ECHR 21 June 2007, paras. 456 on military ofcers. The seminal case in this issue is Case 149/79 Commission v. Belgium [1980] ECR III-3881.

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Exclusion of specic activities in the national public service [from freedom of movement for workers] On the basis of current Court of Justice rulings, and bearing in mind the present conditions for establishing the single market, the Commission considers that the derogation in Article 48(4) covers specic functions of the State and similar bodies such as the armed forces, the police and other forces for the maintenance of order, the judiciary, the tax authorities and the diplomatic corps. This derogation is also seen as covering posts in State Ministries, regional government authorities, local authorities and other similar bodies, central banks and other public bodies, where the duties of the post involve the exercise of State authority, such as the preparation of legal acts, the implementation of such acts, monitoring of their application and supervision of subordinate bodies182

By using the case law of the ECJ, the ECtHR transposed the classical distinction between sovereign acts of the state (acts de jure imperii) and acts of a commercial nature (de jure gestionis)183 to the eld of Article 6(1) ECHR. In its own jurisprudence, the ECJ gave examples of activities not covered by Article 48(4):
The generality of posts in the areas of research, health, inland transport, posts and telecommunications and in the water, gas and electricity supply services are remote from the specic activities of the public service because they do not involve direct or indirect participation in the exercise of powers conferred by public law or duties designed to safeguard the general interests of the State or of other public authorities [T]he Court has already stated that the very strict conditions which posts must satisfy in order to come within the exception laid down in Article 48(4) of the Treaty are not fullled in the case of trainee teachers in the case of foreign-language assistants or in the case of secondary school teachers.184

Although in that case the ECJ does not give a clear denition of the notion of the exercise of elements of governmental authority, it
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Freedom of movement of workers and access to employment in the public service of the Member States Commission action in respect of the application of Art. 48(4) EEC Treaty (Communication from the Commission of the European Communities published in OJ 1988 no. C 72, 18 March 1988). Emphasis added. Lucius Caisch, The Pelligrini Ruling: Origins and Consequences in L. C. Vohrah et al. (eds.), Mans Inhumanity to Man, Essays on International Law in Honour of Antonio Cassese (The Hague: Kluwer, 2003), p. 208. This approach was recently reafrmed by the ECtHR, in addition directly applying Art. 11 of the Convention on State Immunities as customary law, in Cudak, para. 67. Case C-473/93, European Commission v. the Grand Duchy of Luxembourg [1996] ECR I-3248, paras. 2734 (cited in Pellegrin).

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provides many illustrations and indicia that assist in dening the concept of elements of governmental authority. Moreover, in a series of cases the ECJ has specically dealt with the provision of security services and addressed whether that activity constitutes an exercise of governmental authority. Crucially, it held that the activities of undertakings providing surveillance and protection services are not normally directly and specically connected with the exercise of ofcial authority.185 In addition, the ECJ held that activities consisting in keeping watch or standing guard over movable property or buildings, and carrying out search operations or investigations as well as activities that entail assisting the forces of law and order of the state do not constitute an exercise of ofcial authority.186 Furthermore, as long as the private security guards have not been granted any more power than any regular member of the public, even if they arrest individuals, the ECJ has held that making such arrests does not constitute an exercise of ofcial authority.187 This reasoning conrms our interpretation above that even an institutionalized reliance on a power available to the general public does not amount to a delegation of a power to exercise ofcial authority. This line of cases strongly suggests that there are many activities that may generally be considered to fall within policing-type activities that are not considered to involve an exercise of ofcial state authority. Consequently, if this analysis is used to inform an analysis under Article 5 ASR, the acts of PMSCs providing security services with regard to the general maintenance of public order are not attributable to the state since they do not ow from a delegation of governmental authority. This conclusion raises the important question whether providing such security services for the military does fall within the parameters of ofcial authority. The ECJ and the ECtHR did not use the criterion of the goal of the activity to determine those functions that entail the exercise of elements of governmental authority. They adopted a functional approach towards the nature of the activity itself and the legal regime under which it was authorized.
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Case C-465/05, Re Private Security Guards: Commission of the European Communities v. Italy [2008] 2 CMLR 3, para. 33, citing its decision in Commission v. Belgium [2000] ECR I-1221, at para. 26. Case C-465/05, Re Private Security Guards: Commission of the European Communities v. Italy [2008] 2 CMLR 3, paras. 367. Case C-283/99, Commission of the European Communities v. Italy [2001] 31 May 2001, para. 21.

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2.3.4 Elements of governmental authority in domestic law (France) The domestic law of France is characterized by a dichotomy which may be useful for the purpose of determining the elements of governmental authority. Indeed a traditional distinction is made between the laws and courts competent to judge the activities of the Administration (government) and those competent to deal with the activities of private persons. Since the Blanco case, the French Tribunal des conits decided that, as the Administration was pursuing the public interest, its responsibility could not be considered to be the same as that of private individuals and was therefore not subject to the Napoleonic civil code of 1804.188 For present purposes, the relevant factor is the way the decisions of French courts have established the criteria for application of the administrative law (that is, the law applicable to governmental institutions) and the jurisdiction of the administrative tribunals. In this regard, there has been a controversy in French administrative law between the tenets of the doctrine of the service public under which the criterion for applying the administrative law is that of public service.189 The latter is dened as all the activities done in the interests of the community, including services provided in the interests of the general public. On the other hand, the doctrinal school of the puissance publique (literally, public power or public authority) denes the threshold for applying the French administrative law by the involvement of a state authority in the activity concerned.190 Activities triggering the application of administrative law are those in which the state acts by means of orders, or by other unilateral regulations, which are manifestations of the will of the state and its power to command. These are the acts which are described as acts of public authority, in contrast with commercial public services (actes de gestion).191 Despite the controversy, there is consensus on the following elements. To determine the applicability of the administrative law to an activity or
Tribunal des Conits, 8 February 1873, CA, no. 1: La responsabilit qui peut incomber lEtat pour les dommages causs aux particuliers par le fait des personnes quil emploie dans le service public, ne peut tre rgie par les principes qui sont tablis dans le Code civil pour les rapports de particulier particulier. Note: this tribunal has the function within the French judicial system of determining whether (disputed) claims fall within the jurisdiction of the civil courts, which deal with private matters, or the administrative courts, which deal with state/governmental matters. A. de Laubadre, J. C. Venezia and Y. Gaudemet, Trait de droit administratif, 13th edn (Paris: LGDJ, 1994), vol. 1, esp. pp. 389. 191 Ibid., pp. 3548. For a summary see ibid., pp. 467.

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an act, one has rst to consider the character of the act itself and not just its purpose. Secondly, an act is not considered to be administrative (governmental) only by its nature as being an act of authority or one emanating from the state but because it is subject to a separate legal regime, not common to ordinary private activities. Thirdly, the main characteristic which distinguishes the legal regime of public acts is the fact that such acts are a manifestation of the will of the state in a manner, or concerning matters, that are not at the disposal of private persons.192 This is exemplied by situations where the state can decide to act unilaterally in an activity without requiring the consent of the private persons who may be affected by the decision. For present purposes we focus only on the prerogatives of the state when it is choosing to act and not on prerogatives in place to protect the state from others actions.193 When the state acts it enjoys the prerogative to decide to act unilaterally for the common interest; it has the power to make unilateral decisions that place obligations on private individuals. In addition, it has the power to execute regulatory measures in the public interest without the consent of private individuals who may be affected by the decision.194 From the above analysis, the elements of governmental authority in French domestic law appear to be acts which are decided unilaterally by the state, or executed unilaterally without the consent of affected private persons, and if necessary with the use of coercive measures, providing these are done in the public interest and under the special administrative law regime.195 Accordingly, activities involving an exercise of governmental authority in French law are activities which are unique to the organs of the state, and are under the regulatory power of the state alone. These are the sovereign activities of states, including the power to create and command armed forces, to conduct the external relations of the state, to issue the

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See for all these criteria, ibid. G. Braibant and B. Stirn, Le Droit administratif franais, 5th edn (Paris: Presse de Sciences po and Dalloz, 1999), pp. 178202. Ibid., p. 422. C. Leclerq and A. Chaminade, Droit administratif, 3rd edn (Paris: Litec, 1992), p. 36. Jean-Claude Venezia, Puissance publique, puissance prive in Recueil dtudes en hommage Charles Eisenmann (Paris: Cujas, 1975), pp. 369 and 377. The elements of governmental authority are dened as a pouvoir de modication unilatrale des situations juridiques, un pouvoir de faire natre unilatralement des obligations, ventuellement des droits, la charge ou au prot des tiers et sans le consentement de ceux-ci, pouvoir qui ne connatrait pas son quivalent en droit priv.

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national currency, to maintain public order and to administer the system of justice.196 The jurisprudence has also considered as prerogatives of governmental authority the capacity to issue public regulations,197 to enforce laws including by detaining persons and administering justice198 and to carry out public works on its own initiative.199 The reference to French internal law appears to be useful for it helps to dene in an abstract manner the notion of elements of governmental authority, suggesting that the real difference between a governmental activity and other activities conducted by the state may lie in its legal regime. The activity concerned is not legally available to private persons. Again, however, this can be circular: in states in which healthcare is offered exclusively by the state, healthcare professionals may not lawfully offer services for a fee. Yet it begs the question whether healthcare is an exercise of governmental authority. Nevertheless, it expresses the states unilateral power to decide and execute measures in the common interest. Also, one has to remember that the French jurist Reuter was the rst one to suggest in the ILC debates that the expression elements of governmental authority would be useful for the purposes of attribution. It is evident that this insight came from the framework of the French domestic legal order. 2.3.5 Inherently governmental activities in US practice States may also dene activities as inherently governmental for purposes of their own internal law or policy, which may provide another avenue for exploring the notion of governmental authority. The US is a good example: not only is it the worlds biggest user of PMSCs, but it has detailed laws and regulations on what constitutes an inherently governmental function.200 In addition, it has specically mandated a special

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Braibant and Stirn, Le Droit administratif franais, p. 24. Conseil dEtat, sect., 6 October 1961, Fdration nationale des huileries mtropolitaines moyennes et artisanales: Rec. Cons. DEtat, p. 92; sect. 22 November 1974, Fdration des Industries franaises darticles de sport, Rec. Cons. DEtat, p. 592. Conseil dEtat, sect. 26 November 1976, Fdration franaise de cyclisme. Conseil dEtat, sect. 13 January 1961, Magnier: Rec. Cons. DEtat, p. 33. See esp. US Federal Acquisition Regulation, 48 CFR 7.503 and DoD Instruction 1100.22 (superseding previous instructions of 6 April 2007 and 7 September 2006). An important additional source is the Defense Federal Acquisition Regulation Supplement, the provisions of which are developed by notice-and-comment rulemaking and have the force of law: J. Luckey, V. Bailey Grasso and K. Manuel, Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress,

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Commission to dene inherently governmental in relation to PMSCs.201 In addition, the US administration is currently seeking to establish a single denition of inherently governmental function for use across the government.202 The US government currently relies on a denition in a law and a very similar denition in a policy document in order to determine what constitute inherently governmental functions in general. The law and policy distinguish three types of functions: those that are inherently governmental and must be performed by government personnel, those that are inherently governmental and should be performed by government personnel and those that may or should be contracted out to the private sector.203 The FAIR Act of 1998 denes inherently governmental functions as functions that are so intimately related to the public interest as to require performance by Federal Government employees.204 In a report for the US Congress, Jennifer Elsea summarizes the relevant provisions, stating:
the term includes activities that require either the exercise of discretion in applying Federal Government authority or the making of value judgments in making decisions for the Federal Government . It involves functions
CRS Report for Congress (1 February 2010), p. 18 (Luckey, Grasso and Manuel, Inherently Governmental Functions). National Defense Authorization Act for Fiscal Year 2008, Commission on Wartime Contracting in Iraq and Afghanistan, 110th Congress, Public Law 181, Section 841(d)(3) (c)(v): the Commission shall submit to Congress a nal report. [which] shall (c) include specic recommendations for improvements to be made in (v) the process for determining which functions are inherently governmental and which functions are appropriate for performance by contractors in a contingency operation (including during combat operations), especially whether providing security in an area of combat operations is inherently governmental. The committee has published its ndings but the policies in place at the time remain relevant. See The White House, Ofce of the Press Secretary, Memorandum for the Heads of Executive Departments and Agencies: Government Contracting, 4 March 2009, www. whitehouse.gov/the_press_ofce/Memorandum-for-the-Heads-of-Executive-Departmentsand-Agencies-Subject-Government/. The Ofce of Federal Procurement Policy in the Ofce of Management and Budget has issued a proposed policy letter, Work Reserved for Performance by Federal Government Employees, 31 March 2010, US Federal Register 31 March 2010, vol. 75, no. 61, pp. 1618897. As of January 2010, however, no uniform denition had been reached: Luckey, Grasso and Manuel, Inherently Governmental Functions, p. 1. Luckey, Grasso and Manuel, Inherently Governmental Functions, pp. 13. Federal Activities Inventory Reform Act of 1998, 31 USC 501, s. 5(2)(A).

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that can determine, protect, and advance United States economic, political, territorial property or other interests by military or diplomatic action, civil or criminal justice proceedings, contract management, and functions that can signicantly affect the life, liberty, or property of private persons.205

The policy directives in OMB Circular A-76 provide essentially the same denition and very similar examples.206 These guidelines were developed in the 1960s and revised over the years but were established pursuant to the notion that there is a basic principle that government should not contract out its responsibilities to serve the public interest or to exercise its sovereign power.207 Using these denitions has not been straightforward, leading to the recent efforts to streamline the concept across the government.208 Certain activities related to the military and armed conict are listed as clear examples of functions considered to be inherently governmental functions in the Federal Acquisition Regulation, which implements the FAIR Act. These include The command of military forces, especially the leadership of military personnel who are members of the combat, combat support, or combat service support role and the direction and control of intelligence and counter-intelligence operations.209 A key Department of Defense (DoD) instruction on determining the workforce mix stipulates that combat is also an inherently governmental function.210 What are more difcult to assess are activities at the edges of these clear-cut cases. The various laws, regulations and DoD instructions show that there are a number of PMSC activities that may be tinged with governmental authority in particular, activities in relation to persons

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J. K. Elsea, Private Security Contractors in Iraq and Afghanistan: Legal Issues, CRS Report for Congress (22 December 2009), p. 14, citing FAIR Act, s. 5(2)(B). Luckey, Grasso and Manuel, Inherently Governmental Functions, p. 13. GAO Report, Government Contractors: Are Service Contractors Performing Inherently Governmental Functions, GAO-GGD9211 (November 1991), p. 4, http://archive.gao. gov/t2pbat7/145453.pdf. The White House, Ofce of the Press Secretary, Memorandum for the Heads of Executive Departments and Agencies: Government Contracting (4 March 2009), www.whitehouse. gov/the_press_ofce/Memorandum-for-the-Heads-of-Executive-Departments-andAgencies-Subject-Government/. Federal Acquisition Regulation, 48 CFR 7.503. These examples are highlighted by Elsea, who also highlights conduct of foreign policy as inherently governmental and relevant to the discussion of PMSCs. See J. K. Elsea, Private Security Contractors in Iraq and Afghanistan: Legal Issues, CRS Report for Congress (22 December 2009), p. 15, n. 67. DoD Instruction 1100.22, Enclosure 4 1.c., p. 18.

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detained in an armed conict, intelligence and interrogation activities, law enforcement and the provision of security in conict zones.211 While security guarding is generally permitted, two cases pose particular problems: guarding military installations and providing security in high threat, uncontrolled areas or areas of combat operations.212 The US has a law prohibiting the DoD from contracting PMSCs to guard US military installations or facilities, but that law contains a signicant exception: PMSCs may be contracted for exactly that purpose for installations located outside of US territory.213 This would seem to suggest that, according to US law and policy, guarding a military base overseas is not an inherently governmental function or, if it is, it may be outsourced. Since guarding a military objective (which a military facility in a conict zone is) amounts to direct participation in hostilities, in our view this interpretation of inherently governmental diverges from the concept of an exercise of the governmental authority as understood in international law. Thus, PMSCs guarding military bases in a conict zone would be attributable to the contracting government under international law, even if it would be arguable that under the national law of the contracting state that activity is not an inherently governmental function. On the other hand, there are clear rules stipulating that PMSCs must not be mandated to participate in offensive combat operations214 and that rules on guarding must be drafted so as to be commensurate with that prohibition. It is worth reproducing the detailed rules in US DoD Instruction 1100.22 on when security provision amounts to an inherently governmental function:
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Federal Acquisition Regulation, 48 CFR 7.503; DoD Instruction 1100.22, esp. Enclosure 4, 1.d., 1.f. and 1.g. See also Luckey, Grasso and Manuel, Inherently Governmental Functions, pp. 1618; and the Sense of Congress provisions in Defense appropriations legislation, ibid., p. 11, n. 64. Commission on Wartime Contracting, Are Private Security Contractors Performing Inherently Governmental Functions?, Hearing 18 June 2010, www.wartimecontracting. gov/docs/hearing20100618_transcript.pdf, p. 3. That commission has been mandated by the US Congress to determine whether providing security in an area of combat operations is inherently governmental. See also the Sense of Congress provisions referred to above. 10 USC 2465 (a) and (b). Section (b) states that the prohibition does not apply to A contract to be carried out at a location outside the United States at which members of the armed forces would have to be used at the expense of unit readiness. See e.g. DoD Instruction 3020.50 of 22 July 2009, Glossary, Part II (Denitions). PSC: Contractors performing private security functions are not authorized to perform inherently governmental functions. In this regard, they are limited to a defensive response to hostile acts or demonstrated hostile intent.

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Security provided for the protection of resources (people, information, equipment, supplies, facilities, etc.) or operations in uncontrolled, unpredictable, unstable, high risk, or hostile environments inside or outside the United States entails a wide range of capabilities, some of which are IG [inherently governmental] and others of which are commercial [The following] are examples of IG security functions. (a) If security forces that operate in hostile environments as part of a larger, totally integrated and cohesive armed force perform operations in direct support of combat (e.g., battleeld circulation control and area security), the operations are IG. These operations entail the discretionary use of deadly force i.e., although these operations are governed by rules of engagement, mission statements, and orders expressing the commanders intent, the military troops are still required to exercise initiative and substantial discretion when deciding how to accomplish the mission, particularly when unanticipated opportunities arise or when the original concept of operations no longer applies. These security operations require command decisions, military training, and operational control and must be provided through a military means. As PSCs may not perform these security operations, private security contracts are not a force structure substitute for these requirements. (b) Security is IG if it is performed in environments where there is such a high likelihood of hostile re, bombings, or biological or chemical attacks by groups using sophisticated weapons and devices that, in the judgment of the military commander, the situation could evolve into combat. Security performed in such high-risk environments requires command decisions, military training, and operational control and shall be designated for military performance. In such situations, private security contracts are not a force structure substitute for these requirements. (c) Security actions that entail assisting, reinforcing, or rescuing PSCs or military units who become engaged in hostilities are IG because they involve taking deliberate, offensive action against a hostile force on behalf of the United States. This type of security requires command decisions, military training, and operational control and shall be designated for military performance. As PSCs may not be given the discretionary latitude to engage in offensive actions, private security contracts are not a force structure substitute for these requirements. Nothing in this subparagraph of the Instruction shall preclude a PSC from defending another contractor or government entity of their own volition if consistent with U.S., international, and host nation (HN) law; Status of Forces Agreement (SOFA) and other IA; HN support agreement; and Federal regulation. (d) Security is IG if, in the commanders judgment, an offensive response to hostile acts or demonstrated hostile intentions would be required to

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operate in, or move resources through, a hostile area of operation. Decisions to offensively respond to hostile acts or demonstrated hostile intentions (e.g., assault or preemptively attack) entail substantial discretion and are IG. This type of security requires command decisions, military training, and operational control and shall be designated for military performance. As PSCs may not be given the discretionary latitude to authorize or engage in offensive actions against an enemy or hostile force, private security contracts are not a force structure substitute for these requirements. (e) Security is IG if, in the commanders judgment, decisions on the appropriate course of action would require substantial discretion, the outcome of which could signicantly affect U.S. objectives with regard to the life, liberty, or property of private persons, a military mission, or international relations. Such actions typically require high-risk, on-the-spot judgments on the appropriate level of force, acceptable level of collateral damage, and whether the target is friend or foe in situations pivotal to U.S. interests. These actions are so intimately related to U.S. interests as to require government performance and is IG. Private security contracts are not a force structure substitute for these requirements.215

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In our view, this instruction goes a long way toward encapsulating situations that would amount to direct participation in hostilities by PMSCs. Where it seems to fall short is in deeming only the use of offensive force as inherently governmental; however, since the instruction refers to an offensive response to hostile acts, it could be understood as including the use of defensive force, which may be more in line with our interpretation of direct participation in hostilities. The US also has regulations stipulating that there must remain a core logistics capability, despite outsourcing.216 In our view, this does not mean that the United States considers the performance of logistics related to the military to be an inherently governmental function (and indeed it is not listed as an example in any of the relevant laws, regulations or policy documents we are aware of),217 but it reects a concern that outsourcing must not pose a threat to the ability of the US forces to carry out their regular duties. This is similar to the support functions in the law on state immunity.

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US Department of Defense Instruction 1100.22, Enclosure 4, 1.d: Security Provided to Protect Resources and Operations in Hostile or Volatile Areas, pp. 1920. Emphasis added. 10 USC 2463. With the exception of weapons system maintenance, which in our view does not fall within the general rubric of logistics.

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2.3.6 Conclusion on the notion of elements of governmental authority and its relevance for the responsibility of states for the conduct of PMSCs From the foregoing analysis, it appears that the notion of elements of governmental authority is entirely linked to the exercise of the special powers of the state and not to the general public interest or the goal of a given activity.218 An activity is exercised with elements of governmental authority when, for its accomplishment, the entity in question lawfully uses public powers which are not at the disposal of private individuals powers which are outside the legal regime regulating private or commercial transactions. This is supported by the fact that almost all the authorities who have tried to dene the elements of governmental authority in a theoretical way emphasized the special legal regime in connection with the powers of the state.219 According to the denition given by the WTO of the notion of governmental functions, such functions, or elements of governmental authority, are those whose exercise implies a use of the states power to regulate, to restrain, to supervise or to control the conduct of private persons. Their main characteristics can be summarized as follows: rst, they are based on a capacity to make unilateral decisions; secondly, the entity exercising elements of governmental authority has the legal power to constrain private individuals to comply with what has been decided, under coercion if necessary; and, thirdly, the activities exercised with elements of governmental authority are carried out in the general public interest.220 These are the same criteria as those

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See also Spinedi, Private Contractors, p. 277; Spinedi, La responsabilit dello Stato, p. 77. See e.g. the statement of Special Rapporteur Wilhelm Riphagen in (1986) 2(1)I YBILC 10, para. 4. The Special Rapporteur afrmed: Nor does it seem necessary or advisable to try to dene the term elements of the governmental authority. Though, of course, the functions or role of the State in a given society vary from State to State, the exercise of governmental authority can be clearly distinguished in law from other State activities. Furthermore, in cases falling under article 7, paragraph 2, the question whether or not the internal law of the State concerned has conferred on a particular entity the exercise of elements of governmental authority can be easily answered by comparing the nature of the powers conferred with the nature of the powers retained by State organs (in the sense of article 5) or by organs of a territorial governmental entity (in the sense of article 7, paragraph 1). [Emphasis added] See in this sense, Condorelli, LImputation ltat dun fait internationalement illicite, p. 67. The author dened activities which are not exercised with elements of governmental authority as those in which the state acts sans utiliser des intruments

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used in the French legal doctrine to determine activities exercised with elements of governmental authority. All the examples given by the ILC in its debates and Commentary relating to state responsibility full these criteria, whether one takes the power to detain, the power to police an area or the powers related to immigration. In all these cases, the state has the authority to make decisions in order to accomplish its goal and to constrain private persons who may be affected by its decisions to respect them in the public interest. These criteria permit a distinction between the activities considered to be exercised with elements of governmental authority and other activities. Arguably, the activities of private persons are usually characterized by their contractual nature, the absence of the use of state powers per se to constrain other private persons in case of refusal and, nally, their private purpose. In a different vein, some authors have suggested that all conduct relevant to compliance with an international obligation may be considered to be exercised with elements of governmental authority.221 This argument nds support by analogy in the law of state immunity, where it has been held that the take-off and landing of military planes in a civilian airport as part of an operation in fullment of a UN Security Council Resolution under Chapter 7 of the UN Charter were sovereign acts that enjoyed immunity from jurisdiction.222 However, the nature of an activity as the sovereign act of a state is not dependent on the international character of the obligation imposing it. As noted by Luigi Condorelli, even if international obligations are addressed to the state as the holder of governmental authority, this does not mean that the state will necessarily need to use this authority in their fullment.223 Arguably, a violation of international law may be attributable to the state on many grounds (namely, those enumerated in Articles 4, 6, 8, 9, 10 or 11 ASR). Yet, such responsibility does not imply that the content of an obligation arising from an international convention necessarily involves the exercise of governmental authority. Moreover, it would go too far to argue that all conduct imposed on a state by its international obligations (such as
dautorit et sans dployer des pouvoirs de suprmatie et de contrainte, mais en se plaant sur un pied dgalit avec les particuliers. CUDIH, Expert Meeting on PMCs, p. 17; Spinedi, La responsabilit dello Stato, pp. 789. Flughafen Linz (Airport Linz v. United States of America), Supreme Court of Austria, 2 Ob 156/037, 28 August 2003; (2003) 8 Austrian Rev Intl and European L 430. Condorelli, Limputation lEtat dun fait internationalement illicite, p. 73.

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human rights), is conduct which entails the exercise of elements of governmental authority.224 For example, the education of children in primary school does not become an activity executed with elements of governmental authority simply because the right to education is guaranteed in relevant international human rights covenants.225 When it comes to PMSCs in armed conict, it is important to recall that not all of the obligations imposed by the Geneva Conventions involve an exercise of governmental authority, even though certain aspects of IHL clearly would.226 We therefore reject that approach. The criteria explored above provide valuable indicia as to whether a private company is exercising elements of governmental authority for the purposes of Article 5 ASR. It is accepted by legal analysts in this eld that private companies in roles such as combat are covered by Article 5.227 It is also accepted, both by the academic authorities and in the case law, that seizure of money or other goods,228 detention229 and
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CUDIH, Expert Meeting on PMCs, pp. 1718. Lehnardt, Private Military Companies and State Responsibility, p. 145. In the same sense, Lehnardt, ibid. See also CUDIH, Expert Meeting on PMCs, pp. 1718. To cite a few: McDonald, Ghosts in the Machine, pp. 3934; Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Rights of Peoples to Self-determination, submitted by Mr Enrique Bernales Ballesteros, Special Rapporteur, pursuant to Commission Resolution 1995/5 and Commission decision 1996/113, UN ESCOR, 53rd Sess., Agenda item 7, 89, UN Doc. E/CN.4/1997/24 (1997), pp. 121, 122; Zarate, New Dog of War, p. 144; Lehnardt, Private Military Companies and State Responsibility, pp. 1467; D. M. Chirwa, The Doctrine of State Responsibility as a Potential Means of Holding Private Actors Accountable for Human Rights (2004) 5 Melbourne J Intl L 136; Spinedi, Private Contractors; CUDIH, Expert Meeting on PMCs, p. 17; Nieminen, Attribution and Abu Ghraib, p. 299; Spinedi, La responsabilit dello Stato, p. 78; Advisory Council on International Affairs (Adviesraad Internationale Vraagstukken), Netherlands, Employing Private Military Companies: A Question of Responsibility, no. 59, December 2007 (The Hague: Advisory Council on International Affairs, 2007), p. 21 (Advisory Council on International Affairs, Employing PMCs). Hyatt International Corporation v. Government of the Islamic Republic of Iran (1985) 9 Iran-USCTR 72, at 94. The tribunal used the criteria of the exercise of elements of governmental authority and the criteria of control cumulatively to impute the acts of a private entity which was empowered by Iranian internal law to make seizure. Rankin v. Islamic Republic of Iran (1987) 17 Iran-USCTR 135; Yeager case, at 101. ACHPR, Malawi African Association and ors. v. Mauritania (Comm. nos. 54/91, 61/91, 98/93, 16496/97, 210/98) 11 May 2000, para. 122. The commission considered, [t]he States responsibility in the event of detention is even more evident to the extent that detention centres are of its exclusive preserve, hence the physical integrity and welfare of detainees is the responsibility of the competent public authorities. Spinedi, La responsabilit dello Stato, p. 78.

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interrogation230 are all activities exercised with elements of governmental authority.231 Two activities are slightly more contentious, with examples of one court holding that they necessarily involve an exercise of governmental authority and another court holding they do not. These are arrest232 and the maintenance of public order.233 It is difcult to know what to make of this discrepancy, especially considering that the ndings that such activities are not an exercise of ofcial authority were made specically in respect to PMSCs, but from a free trade perspective. One cannot help but wonder whether a human rights court would nd differently. In our view, the tests outlined above suggest that activities related to armed conict must be placed along a continuum, where certain acts will always involve an exercise of governmental authority, others are likely to and, nally, other activities may involve governmental authority depending on the specic circumstances in which they are carried out. This is because in armed conict, the context may change the nature of an activity, even irrespective of a use of violence or force. At one end of the spectrum, activities such as command and control of armed forces,234 combat operations,235 and activities which involve gaining covert knowledge or intelligence about an adversary state, such as interrogations or spying, involve elements of governmental authority.236
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von Epiney and Egbuna-Joss, Zur vlkerrechtlichen Verantwortlichkeit, p. 224; Spinedi, Private Contractors, p. 277. von Epiney and Egbuna-Joss, ibid. Lehnardt, Private Military Companies and State Responsibility, pp. 1467. R v. Lerke (1986) 25 DlR (4th) 403, 24 CCC (3d), at 129, para. 15. It was held that: the arrest of a citizen is a governmental function whether the person making the arrest is a peace ofcer or a private citizen. von Epiney and Egbuna-Joss, Zur vlkerrechtlichen Verantwortlichkeit, p. 224. See however Case C-283/99, Commission of the European Communities v. Italy, 31 May 2001, para. 21. Yeager case, at 11011; Lehnardt, Private Military Companies and State Responsibility, p. 148; von Epiney and Egbuna-Joss, Zur vlkerrechtlichen Verantwortlichkeit, p. 224; but see Case C-283/99, Commission of the European Communities v. Italy, 31 May 2001, para. 21. While many statements on state responsibility refer to acts of the armed forces in general, US doctrine on inherently governmental functions species that leading armed forces constitutes an inherently governmental function. Lehnardt, Private military companies and state responsibility, pp. 1467; Spinedi, Private Contractors, p. 277. S. Chesterman, We Cant Spy If We Cant Buy! (2008) 19 EJIL 105574, 106973 explores the nuances of intelligence and inherently governmental function in US doctrine. Others however tend to consider intelligence operations to comprise an exercise of governmental authority: Advisory Council on International Affairs,

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Technical assistance in programming weapons for targeting would also fall within this rubric.237 At the other end of the spectrum, activities such as logistics, catering, reconstruction and delivery of goods are not activities which t the criteria outlined above as involving elements of governmental authority, even though they are necessary to support armed forces in the eld, and as such essential to a successful military operation.238 Indeed, logistics is widely viewed as the activity most appropriate for outsourcing.239 These activities do not normally involve a use of force, control over persons, or the exercise of signicant discretionary authority. For policy reasons, governments may wish to ensure capacity of their own armed forces to carry out these activities to some extent because the exercise of the activities constituting governmental authority depends on the supporting function, but the supporting function itself does not involve an exercise of governmental authority. However, if such operations constitute direct participation in hostilities on behalf of the state, a concept we will discuss in detail below, in our view they would involve the exercise of elements of governmental authority. In our view, it will be fairly rare for such activities to amount to direct participation in hostilities when security in relation to them is excluded. In the grey area in the middle of the spectrum lie activities related to the provision of security whether for reconstruction activities, convoys or military bases themselves. The general doctrine canvassed above indicates that, under normal circumstances, the provision of security does not constitute an exercise of governmental authority. There are two important limits to this. The rst appears even in peacetime when these activities may cross the threshold from security to law enforcement. Guarding persons, places and things; carrying out surveillance; patrolling; and even arresting individuals (as long as only the powers of arrest accruing to the general population are relied upon) make up a part of policing as we understand it, but they do not, without more,
Employing PMCs, p. 21. This is why, for example, the contractors of CACI involved in the torture in Abu Ghraib can be considered as exercising elements of governmental authority: Okany, State Delegation of Public Functions to Private Entities, p. 341. Nieminen, in Attribution and Abu Ghraib, p. 299, does not consider that the circumstances in Abu Ghraib allow for attribution but she does not contest that interrogations are acts exercised with elements of governmental authority. See also Lehnardt, Private Military Companies and State Responsibility, p. 148. See also Spinedi, Private Contractors, p. 277. See e.g. Advisory Council on International Affairs, Employing PMCs, p. 32.

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constitute law enforcement.240 The second limit, we would argue, appears in situations of armed conict and is related to security activities that amount to direct participation in hostilities. Providing security for a military base (or another object that is military in nature) in a conict in fact entails guarding a military objective. Consequently, regardless of whether such PMSCs engage in offensive combat operations, their regular task is itself direct participation in hostilities and therefore falls under Article 5 ASR as an exercise of elements of governmental authority. When it comes to providing security in a conict zone for persons, places or things that are not military in nature, however, it is less easy to draw a bright line, but it will again hinge on direct participation in hostilities. A last problem which can arise concerns PMSCs used to transport or dispatch humanitarian relief after a natural disaster or in an armed conict. Are they exercising elements of governmental authority or not? Two hypothetical situations are relevant for discussion purposes. A rst scenario arises when the distribution of humanitarian relief is done with the consent of a state which is in control of its territory. In such cases, the dispatch of the humanitarian relief is only exercising of elements of governmental authority if the government entrusts the private company with the discretion to act unilaterally, the authority to make constraining decisions at the expense of private persons (such as traders) and the capacity of coercion in case of opposition, which is very rare in practice. A second scenario may occur during an armed conict and, more precisely, in situations of occupation where the territorial sovereign is not exercising control over the territory. In such cases other states or humanitarian organizations or relief agencies, whether foreign or national, may distribute aid under a variety of authorization regimes, including those emanating from the occupying power, from the United Nations (UN) or, at times, from an informal group that exercises control over part of the territory. Are all the activities done for the relief of the civilian populations done in the exercise of elements of governmental authority? Here again, we believe that the criterion to be used is to determine the legal regime of the activity concerned. If it implies elements of state power, characterized by their unilateral character and their capacity of coercion, the activity concerned will be considered as being exercised with elements of governmental authority but this does
240

See also DoD Instruction 1100.22, Enclosure 4 1.f.: Criminal Justice and Law Enforcement Operations Performed in Operational Environments.

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not mean the state will be responsible for all their activities, only for the aspects entailing elements of governmental authority.

Provided that the entity was exercising governmental powers in the activity concerned Finally, Article 5 ASR assumes that private entities may be empowered to exercise elements of governmental authority and makes it clear that under this rule the relevant conduct must be related to the exercise of governmental authority for it to be attributable to the state. The Commentary highlights that if a railway company is empowered to exercise elements of governmental authority (police powers), the responsibility of the state for its conduct under Article 5 extends only to that conduct which is related to the police powers and not to the companys other activities.241 Any full consideration of Article 5 ASR must, therefore, consider also the impact of acts ultra vires (outside the delegated authority) of such a company. This question becomes relevant if the company uses its governmental authority for purposes exceeding, or not related to, its designated functions. However, as these issues are the same for Article 5 ASR as for Article 4 (and, equally, Article 7), the reader is referred to the foregoing discussion of ultra vires acts regarding Article 4. C The attribution of the conduct of PMSCs to states under Article 8 ASR

2.4

In addition to being responsible for the acts of their own organs and those persons or entities to whom they have delegated the power to exercise elements of governmental authority, states may also be responsible for their de facto agents. Article 8 ASR states:
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.

This principle of attribution is usually referred to in the academic literature as the doctrine of de facto organs of the state. We noted above that the ICJ in the Bosnia v. Serbia case used the expression de facto organ of a state with respect to private entities equated with state organs
241

ASR with Commentaries 2001, p. 43, para. 5.

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under Article 4 ASR.242 While we referred to such Article 4 organs as entities equated to state organs, here, in order to avoid confusion, we refer to individuals and groups concerned by Article 8 ASR as being under the instruction, direction or control of a state. Article 8 ASR is concerned with the attribution to the state of the conduct of persons who are not members of its organs according to national law. It covers situations where State organs supplement their own action by recruiting or instigating private persons or groups who act as auxiliaries while remaining outside the ofcial structure of the State.243 The auxiliary nature of many activities of PMSCs makes this seem like a promising hook for attribution. The analysis below will show, however, that the case is not so easily made out. Three causes of imputation are laid down in Article 8 ASR: instructions, direction and control. While instructions are related to the moment of taking the decision to commit an unlawful act (1.1), the criteria of direction (1.2) and control are related to the execution of the act or series of acts (1.3).

Instructions

Instructions involve the subordination of the private entity to the state at the moment of deciding on an act or a course of conduct that is unlawful. It is the state that makes the decision to commit the unlawful act(s), although implementation is carried out by the private entity.244 As such, instructions require a clear manifestation of the will of the state authorizing the commission of a specic act that breaches the international obligations of that state.245 As the state has authorized the
242

243 244

245

In Genocide Convention (Bosnia v. Serbia), it is private entities equated to states organs that the ICJ qualied as being de facto organs. Genocide Convention (Bosnia v. Serbia), para. 397; see also para. 413. ASR with commentaries 2001, at 47. C. Kress, LOrgane de facto en droit international public. Rexions sur limputation lEtat de lacte dun particulier la lumire des dveloppements rcents (2001) 105 Revue gnrale de droit international public 93144, 137. See also the denition given by J. Salmon (ed.), Dictionnaire de droit international public (Brussels: Bruylant, 2001), p. 587. Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) (Judgment) [1980] ICJ Rep 3, at para. 59 (Tehran Hostages case). The ICJ afrmed, the Ayatollah Khomeini had declared that it was up to the dear pupils, students and theological students to expand with all their might their attacks against the United States and Israel, so they may force the United States to return the deposed and criminal shah In the view of the Court, however, it would be going too far to

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commission of the unlawful act(s), it is logical that it also bears the consequence of its choice. This is why international tribunals have held the state which instructed private entities to commit unlawful acts responsible for those acts.246 Recent academic opinion has also acknowledged the application of this general rule to PMSCs and their employees, supporting the view that if a PMSC or one of its personnel is instructed to commit an unlawful act, the state giving such an instruction will be responsible for the conduct involved in implementation of the instruction.247 One author has expressed doubt that a contract per se can be said to constitute an instruction, stressing the need for the instructions to be given directly to the individual private contractor and not only to the company,248 but this is perhaps an overly formalistic reading of Article 8, which requires evidence that the unlawful act has been authorized or ordered by the state. Whether the instructions are laid down in the contract between the state and the rm or given directly to an individual contractor may be immaterial. Of course, it would be rare for a state to issue unlawful instructions knowingly by means of a contract. Nevertheless, it is only the existence of the instructions, and not the specic way in which they are delivered, that is important.249 Moreover, on a given mission, when a contracting state orders a private person or entity to engage in unlawful conduct (such as killing civilians or torturing POWs), those acts will be attributable to the state, even if such conduct was not envisaged in the contract. Although the principle of the direct ordering of unlawful conduct by way of instructions is not legally difcult, it is more difcult to decide

246

247

248 249

interpret such general declarations of the Ayatollah Khomeini to the people or students of Iran as amounting to an authorization from the State to undertake the specic operation of invading and seizing the United States Embassy. See also Alfred Short v. Iran (1987) 16 Iran-USCTR 76, at 85. Lehigh Valley Railroad I (United States v. Germany) (Sabotage cases) VIII RIAA 104, at 11415 and contrast it with Lehigh Valley Railroad II (United States v. Germany) (Sabotage cases) VIII RIAA 225, at 33945. D. Earnshaw and ors. (Great Britain) v. United States (1925) VI RIAA 160 (Zaro case); the Stephens case, at 267; and Lehigh Valley Railroad Company and ors. (USA) v. Germany (Sabotage cases): Black Tom and Kingsland incidents VIII RIAA 84 (1930) and 458 (1939). Spinedi, La responsabilit dello Stato, p. 89. Lehnardt, Private Military Companies and State Responsibility, pp. 1489. Gillard, Business Goes to War, p. 555. Wolfrum, State Responsibility for Private Actors, p. 427. Spinedi, La responsabilit dello Stato, p. 97, n. 63. Wolfrum, State Responsibility for Private Actors, p. 428.

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the question of state responsibility for the conduct of private entities when those entrusted with a lawful mission nevertheless violate both the instructions and the international obligations of the state. The ILC stated that:
Such cases can be resolved by asking whether the unlawful or unauthorized conduct was really incidental to the mission or clearly went beyond it. In general a State, in giving lawful instructions to persons who are not its organs, does not assume the risk that the instructions will be carried out in an internationally unlawful way.250

According to the second passage of this extract, when a state gives lawful instructions to a PMSC, it is not responsible if the instructions are carried out in an unlawful manner. This interpretation has been sustained in the literature concerning Article 8.251 But the ILC does not explain how this statement can be harmonized with the rst sentence according to which such circumstances can be resolved by determining whether the conduct was incidental to the mission instructed or whether it clearly went beyond it. Arguably, a state cannot argue against its responsibility when it has given vague or general instructions, during the execution of which unlawful activities occurred. Following such reasoning, states would be encouraged to give general and vague instructions which were in conformity with international law, in order to avoid responsibility for courses of conduct which would necessarily involve unlawful acts. It seems to be the ILCs position that, in principle, the state is not responsible for unlawful conduct occurring in the execution of a lawful mission that it has entrusted to private individuals, but the state can still be responsible if the unlawful conduct was incidental to the mission. The incidental character of the unlawful act regarding the particular mission can be determined by weighing whether or not the unlawful act was done to assist in the accomplishment of the mission, which can then help to answer the question of whether the instructing state had accepted the likelihood of its occurrence. Following this reasoning, the less precise the instructions of the state, the more easily particular acts committed during the execution

250 251

ASR with Commentaries, p. 48. Gillard, Business Goes to War, p. 555: State responsibility arises under draft Article 8 only if the state directed the company to commit violations of international humanitarian law, but not if it hired the company to perform a lawful activity and, while carrying out the contract, the PMC/PSC employees violated the law.

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of the instructions will fall within the ambit of the states responsibility. One expert considers that:
By providing vague instructions, the State bears the risk that such instructions will be interpreted in such a way as to result in the PMC committing internationally wrongful acts the vaguer the instructions are, the more likely it is that the conduct of the PMC, including international wrongful acts, will be within those instructions giving rise to State responsibility.252

When a state gives lawful instructions to a PMSC, the contract should specify clearly the mission, the powers endowed on the private company to carry out that mission, and, if the mission includes the use of force, a clear description of the rules of engagement.253 Also, if a private entity is instructed to interrogate a POW and, in doing so, tortures him, those acts of torture can also be considered incidental to the mission because they were committed in (very misguidedly) fullling the goal of the mission. The ASR dealt with lawful instructions of the state in an ambiguous manner and it did not give any clues to deal with the case where a state gives an unlawful instruction, in the execution of which other unlawful acts which were not authorized are committed. We suggest applying the same rule as above. Accordingly, here also, it will be necessary to determine whether or not the unlawful act committed is incidental to the mission. If so, the state will be deemed to have authorized it. If not, then the unlawful conduct committed ultra vires will be a private act which would not trigger the states international responsibility. A hypothetical example of how this rule would apply is if a private company is instructed to abduct a private person and then tortures him once he is captured. In such cases, the unlawful deprivation of liberty is imputable to the state because this was incidental to the mission but the torture may not be imputable to the state because it is not incidental to the mission of abduction. The clarity of the rule on instruction by a state and its well-established character is countered by the fact that it is rare to nd evidence that a state ordered the commission of an unlawful act. Most often, states will
252 253

CUDIH, Expert Meeting on PMCs, p. 19. Concerning the rules of engagement, see ibid., pp. 1920. See also DoD Instruction 3020.41: at point 6.14, regarding the contractual relationship, it says, The contract shall specify the terms and conditions under which the contractor is to perform; the method by which the contractor will be notied of the deployment procedures to process contingency contractor and the Department of personnel; and the specic support relationship between the contractor and the Department of Defense.

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provide some assistance comprising nancial, logistical or advisory support to individuals or groups of individuals whose activities enhance the states interests. In such circumstances, the question may arise if the state is to be held responsible for the conduct of those private persons. In other words, what is the required level of involvement of a state in the conduct of a person, group of persons or of an armed group to establish that the armed group is just a means in the hands of the state to further its policy? This question is addressed in the following section.

Direction and control

2.1 Direction The criterion of direction in Article 8 ASR is related to the commission of unlawful acts and implies the subordination of a private entity to a state in the commission of such unlawful acts.254 As with the criterion of instructions, the circumstances where a state gives direction requires that the state intends its subordinates to commit unlawful acts. However, as distinct from merely giving instructions, in the case of direction it is necessary that the state leads the steps to be taken in the commission of the unlawful conduct; it must show how the operation is to be conducted. If precise instructions directed to the commission of the unlawful acts were given, it is logical that such direction leads to the responsibility of the state. Beyond that, the state is in our view also responsible if it directed certain conduct without necessarily directing equally the commission of a certain unlawful act in the course of such conduct. In Nicaragua, the ICJ was ambiguous on this latter possibility. On the one hand, the Court considered that the evidence was not sufcient to establish that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law by the contras. On the other hand, it terminated the same paragraph of its judgment by stating that for attributing the conduct of the contras to the United States it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.255 It is unclear whether the Court deliberately used directed in the rst sentence and had control in the second sentence, although both were simply
254 255

Kress, LOrgane de facto en droit international public, 137. Nicaragua at 64, para. 115. Emphasis added.

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indicating what was not proven in the case. If the two were alternatives, there would be no difference between instructions and direction, one of the two being superuous in the ASR. In any case, if a PMSC or its employees are directed by a state to commit violations of international law, their conduct will be attributable to the directing state.

2.2 Control Concerning private companies, the criterion of control in Article 8 ASR can have two different meanings. First, it can describe the situation where a state uses its participation in the capital of a company in order to impose on it conduct which violates international law. To engage the responsibility of the state on this basis, it must be demonstrated that the state has a controlling interest in the company, or sufcient inuence to be the dominant player within the company. For a state to exercise this form of control over a PMSC, the state would probably need to own the majority of the shares, or this level of dominance would need to be established by other evidence. Even then, such control is not sufcient to attribute all acts of the company to the states. The unlawful conduct of such a company could only be imputed to the state if the evidence were to establish that the state used its position to direct the commission of the specic unlawful acts.256 In these circumstances, the separate legal personality of the company cannot be invoked by the state to avoid responsibility. International law does not acknowledge the separateness of corporations in cases where the corporate veil is a mere device or a vehicle for fraud or evasion.257 In addition, although it is sometimes claimed that certain government ofcials, in their private capacity, entertain close relationships with some PMSCs,258 that fact alone would not
256

257

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Spinedi, La responsabilit dello Stato, p. 96; ASR with Commentaries 2001, p. 48, para. 6. See also the case law cited by the ILC: Foremost Tehran Inc. v. Islamic Republic of Iran (1986) 10 Iran-USCTR, para. 79; American Bell International Inc. v. Islamic Republic of Iran (1986) 12 Iran-USCTR, at 170. Commentary on Art. 8 ASR with Commentaries 2001, p. 48, para. 6, citing Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Judgment, Second Phase) [1970] ICJ Rep 3, at 39, paras. 568. The Centre for Public Integrity reported that sixty percent of the companies that received contracts in Iraq or Afghanistan had employees or board members who either served in or had close ties to the executive branch for Republican and Democratic administrations, for members of Congress of both parties, or at the highest levels of the military. Center for Public Integrity, Winning Contractors: U.S. Contractors Reap the Windfall of Post War Reconstruction (2003), http://projects.publicintegrity.org/wow/ report.aspx?aid=65.

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be sufcient to demonstrate control. One has to prove the control by the state (through its de jure or de facto organs acting in that capacity) as a legal person, and not by virtue of personal relationships between individuals and a company. Accordingly, the legal personality of the state cannot be confused with the personality of the persons governing it. Therefore, this interpretation appears difcult to apply in practice.259 The second type of control which leads to attribution is not related to the internal functioning of the company but rather to its activities. As a starting point, the text of Article 8 ASR indicates that control, instructions and direction are disjunctive rather than cumulative criteria.260 Consequently, the criterion of control cannot be said to signify instructions or directions,261 but should be construed in an autonomous sense.262 However, by requiring that effective control be exercised over the specic wrongful act,263 it seems that the ILC does not stray far from requiring the proof of the states authorization of the commission of the wrongful act, as would be required for instructions or directions.264 It is difcult to imagine the commission of a wrongful act under state control which was not also accepted by the state as a likely event or course of action. However, the utility of the term control in the actual wording of Article 8 would be nullied if it means only instructions and direction, or if it requires proof that the state accepted the commission of the unlawful act.

259

260

261

262 263 264

See, however, the case of Dfense Conseil International (DCI), a French PMSC, 49.9% owned by the French government and which works closely with the General Arms Delegation in the Ministry of Defence and the Department of Foreign Relations. See Amnesty International, Undermining Global Security: the European Unions arms exports (2004) ACT30/009/2004, www.amnesty.org/en/library/asset/ACT30/003/2004/ en/3687bc61-d61711dd-bb241fb85fe8fa05/act300032004en.pdf, p. 50. James Crawford, First Report on State Responsibility by Mr James Crawford, Special Rapporteur, Addendum, UN Doc. A/CN.4/490/Add.5, pp. 223; ASR with Commentaries 2001, p. 48, para. 7. See also Nieminen, Attribution and Abu Ghraib, p. 303; Kress, LOrgane de facto en droit international public, p. 303; McDonald, Ghosts in the Machine, p. 396. This was the interpretation given to the criteria of effective control: Prosecutor v. Tadi (Appeals Chamber Judgment) IT-941-A (15 July 1999), at para. 114; Nicaragua, at 64, para. 115; Condorelli, Limputation ltat dun fait internationalement illicite, p. 101. Kress, LOrgane de facto en droit international public, pp. 1389. ASR with Commentaries 2001, p. 48. It is possible that the ILC did not mean that effective control has to be exercised over the unlawful act itself. In the same commentary on Art. 8, the Special Rapporteur noticed that Such conduct will be attributable to the State only if it directed or controlled the specic operation and the conduct complained of was an integral part of that operation. Ibid., p. 47, para. 3.

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It seems more the case that the criterion of control should be construed to have an autonomous meaning.265 This was possibly already the reasoning of the ICJ in Nicaragua, when it held that if the evidence was not sufcient to establish that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law by the contras, it would in principle need to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.266 The ICJs decision in Bosnia v. Serbia conrms this point as it required that the control be exercised not on the wrongful acts themselves but in respect of each operation in which the alleged violations occurred.267 If there is nowadays an agreement on the autonomous meaning of the criterion of control in the ASR, there are divergences concerning its content. The ICJ dealt with the test of control in Nicaragua in 1986, in assessing the relationship between the contras and the United States. Concerning some violations of IHL committed by the contras, all of which Nicaragua considered to be attributable to the United States, the Court held:
that United States participation, even if preponderant or decisive, in the nancing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufcient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military

265 266 267

Kress, LOrgane de facto en droit international public, pp. 1389. Nicaragua, at 64, para. 115. Emphasis added. Genocide Convention (Bosnia v. Serbia), para. 400.

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or paramilitary operations in the course of which the alleged violations were committed.268

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The wording of the Court, concerning the criterion of effective control, appears to be ambiguous. If effective control cannot be satised through nancing, organizing, training, supplying and equipping for the purposes of attribution,269 what is required to satisfy the criterion? The Courts treatment of US agents (Unilaterally Controlled Latino Assets, or UCLAs) provides some indication. The Court found that the United States was responsible for the conduct of the UCLAs, saying:
Although it is not proved that any United States military personnel took a direct part in the operations, agents of the United States participated in the planning, direction, support and execution of the operations. The execution was the task rather of the UCLAs, while United States nationals participated in the planning, direction and support. The imputability to the United States of these attacks appears therefore to the Court to be established.270

Even if the notion of effective control does not appear in this quotation, it would be inconsistent for the Court to apply a double standard of judgment relative to the conduct of the contras and that of the UCLAs. Indeed, the conduct of both groups involved similar factual circumstances.271 Accordingly, by planning, directing and supporting the execution of specic military operations of the UCLAs, and with regard to the subordinate role of the UCLAs due to the presence of all these elements in the execution of the UCLA operations, the United States had effective control over these operations. For this reason, the United States could be held responsible for the conduct of the UCLAs.272 What is important for the purpose of nding effective control is to know whether the state gave practical support for the execution of concrete unlawful acts (or the operation in the course of which those acts were committed), even though state organs may not have physically committed those acts.273
268 269 270 271 272

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Nicaragua, at 64, para. 115. The Court has conrmed this stance in Congo v. Uganda, para. 160. Nicaragua, at 50, para. 86. Emphasis added. Nieminen, Attribution and Abu Ghraib, p. 307. Condorelli, Limputation lEtat dun fait internationalement illicite, p. 98; Nieminen, Attribution and Abu Ghraib, p. 307. Nicaragua, p. 45, para. 75.

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When it comes to PMSCs, it is clear that the mere incorporation of a company in the territory of a state would not be sufcient to demonstrate that the state exercises effective control over the company.274 This connection is even more remote when the company conducts its business abroad: the likelihood of demonstrating the states effective control over the operations concerned is tenuous if based only on the nationality of the company. Even if a licensing system275 has been established in the country of nationality of a PMSC, the same considerations prevail; the state may thereby have authorized the company to engage in military or security services, but cannot be said to exercise effective control over its activities. Even countries with a licensing system lack mechanisms for monitoring the activities of the company once the license is granted.276 According to Chia Lehnardt, [w]ithout any systematic monitoring and oversight mechanism there is very little control over PMC conduct; not even a minimum of control exists where a licensing regime is absent in the rst place, as is the case in Britain.277 The criteria of effective control would still not be satised even if post-licensing control were exercised, assuming it would be general in nature and not directed to the specic operations of a PMSC during which a violation of international law may occur. This is an important counterpoint to the Montreux Document: according to the current state of international law, home states need not fear that they risk increasing their own accountability by introducing tighter controls on PMSCs through licensing systems. Following the above line of reasoning, it is also clear that criterion of effective control will also not be met simply because the activities of a private company are taking place in a given state. The fact that a state exercises control over its territory does not mean that it knows, or should know, of the perpetration of any unlawful conduct in its territory, let alone that it controls such conduct.278
274

275 277 278

Patrick Macklem, Corporate Accountability under International Law: The Misguided Quest for Universal Jurisdiction (2005) 7 Intl L Forum du droit international 2819, 2867; Yves Sandoz, Private Security and International Law in J. Cilliers and P. Mason (eds.), Peace, Prot or Plunder? The Privatisation of Security in War-Torn African Societies (Institute of Security Studies, 1999), p. 214. 276 Discussed below, section E 6. Avant, The Market for Force, p. 147. Lehnardt, Private Military Companies and State Responsibility, p. 150. Corfu Channel (UK v. Albania) (Merits) [1949] ICJ Rep 4, at 18 (Corfu Channel case). The Court said: But it cannot be concluded from the mere fact of the control exercised by a State over its territory and waters that that State necessarily knew, or

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The criterion of effective control is most relevant for PMSCs in situations where a state has contracted them. From Nicaragua, one can deduce that nancing alone is not sufcient for the purpose of attribution; the relationship has to involve more than nancial control, whether through the contract or by other means. Under the criterion of effective control, even if a PMSC discontinues its activities upon cessation of payment (in contrast with the contras, who continued on after the withdrawal of United States nancial support, thus demonstrating some independence), their conduct would not necessarily be deemed attributable to the hiring state; it would be even less so for the state of nationality (the exporting state).279 The existence of a contract is thus not per se sufcient to establish effective control by a state over the activities of the PMSCs that it hires. As it has been contended, the hiring of supplementary persons does not in itself demonstrate anything more than a need for military expertise or resources.280 However, the requirement of attribution must be deemed satised if, as in the Zaro case, the PMSC or its personnel are under the command of an organ of the state that has hired them, and that this command extends to the execution of their contracted obligations during specic operations.281 The same conclusion may apply when the PMSC or its personnel perform the duties stipulated in their contract in a military facility run by the state that has hired them. Indeed, Chia Lehnardt has pointed out that PMSC personnel hired by US agencies fall outside the military chain of command unless they enter a US military facility.282 For example, both CACI International283 and ofcials of the United States have recognized that the contractors acting in Abu Ghraib were not left on their own but were under the supervision of the agency which hired them.284
ought to have known, of any unlawful act perpetrated therein, nor yet that it necessarily knew, or should have known, the authors. This fact, by itself and apart from other circumstances, neither involves prima facie responsibility nor shifts the burden of proof. In Nicaragua, the ICJ made a similar nding with respect to imputing knowledge of small-scale arms-trafcking: see para. 158. Lehnardt, Private Military Companies and State Responsibility, p. 149. Nieminen, Attribution and Abu Ghraib, p. 315. The Zaro case, at 160. Lehnardt, Private Military Companies and State Responsibility, p. 150. CACI Corrects False Information about Chain of Command in Iraq, www.caci.com/ about/news/news2004/07_29_04_NR.html. Rumsfeld Testies before Senate Armed Services Committee, www.washingtonpost. com/wp-dyn/articles/A85752004May7.html.

279 280 281 282 283

284

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Sometimes contracts may conrm this position by providing that the private contractor will be directed by military authority and that the latter is responsible for providing supervision of all contractor personnel.285 In conclusion, from the perspective of the ICJ, it is the de facto subordination of the private person or group to the state which triggers the responsibility of that state for the unlawful acts committed. As Eduardo Savarese emphasized:
the feature of a hierarchical subordination to the willingness of the State in essence constitutes the core of the concept of de facto organ. It is precisely this de facto subordination that may justify the equal and extraordinary treatment, for the purpose of attribution, of acts of de iure organs and those acts committed by individuals who do not have any formal link with the State.286

While we acknowledge that the level of control exercised over contractors is a matter of fact subject to change, the evidence from their use suggests that major change is unlikely in the near future, especially with respect to the United States. In terms of the control exercised over contractors, one US colonel has stated, unless [the US military] provides a government ofcer or NCO for each convoy, personal security detail or facilities protection unit, it does not control their daily interactions with the local population.287 The fact that in the period 200412, at the height of operations in Iraq and Afghanistan so far, contractors outnumbered US forces strongly suggests that the sheer lack of manpower will make that level of oversight impossible.288 The same colonel indicated that the lack of oversight was not limited to security operations, stating, [d]espite continued efforts to increase government oversight of contractor operations, nothing short of having qualied U.S. government personnel
285

286

287

288

See the observations of the Center for Public Integrity of the United States concerning some contracts concluded with one of the PMSCs: CACI Defense Contracts Hazy on Civilian Authority Language Reserves Direction for Military, www.washingtonpost. com/wp-dyn/articles/A218582004Jul28.html. Eduardo Savarese, Issues of Attribution to States of Private Acts: Between the Concept of De Facto Organs and Complicity (2006) 15 Italian Ybk Intl L 11133, 120. Written Statement of Dr T. X. Hammes Provided to the House Committee on Oversight and Government Reform, Subcommittee on National Security and Foreign Affairs (Hearing on 22 June 2010), p. 8, http://oversight.house.gov/images/stories/subcommittees/NS_ Subcommittee/6.22.10_HNT_HEARING/Hammes_Written_Statement.pdf (Hammes, Written Statement on Oversight and Government Reform). On Afghanistan, see M. Schwartz, The Department of Defenses Use of Private Security Contractors in Iraq and Afghanistan: Background, Analysis, and Options for Congress (US Congressional Research Service, 29 September 2009), p. 10.

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accompanying and in command of the contractors will provide control. With support contractors this means we may get poorly wired buildings or malfunctioning computer systems.289 With respect to the feasibility of supervising delivery contractors and their subcontracted security providers, another US colonel has testied that no one in the battalion ever personally witnessed [PMSC] trucking operations outside the wire outside of the major airelds and forward operating bases where supplies are uploaded and downloaded. The 484th did not have the force structure, the equipment, or the security to put eyes on the road. It would have been a combat mission.290 In addition, the United States benets from the fact that contractors hire locals who have their own way of operating and negotiating in order to maintain the security of its supply lines to Afghanistan from Pakistan.291 This example illustrates the advantage the United States sees precisely in not micro-managing contractors and their strategy.292 Thus, while for US forces the lack of control with respect to armed contractors poses problems on a strategic and tactical level, the lack of control itself is a general issue. An additional difculty with the criterion of effective control is to prove the participation of the state in each specic case where violations of international law allegedly occurred. The ICJs requirement for proof of effective control over specic operations was contested by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Tadi, where it applied the criterion of control concretely and in a more expansive manner.293 The Appeals Chamber remarked that, as a general principle, imputability may well depend on the circumstances of the case. It distinguished between the imputability

289 290

291 292

293

Hammes, Written Statement on Oversight and Government Reform, pp. 910. Report of the Majority staff, Subcommittee on National Security and Foreign Affairs, Committee on Oversight and Government Reform, US House of Representatives (John Tierney, Chair) Warlord, Inc. Extortion and Corruption along the US Supply Chain in Afghanistan (June 2010), p. 49 (footnotes omitted), www.cbsnews.com/htdocs/pdf/ HNT_Report.pdf. This statement was given in relation to contracting for trucking in Afghanistan, where, according to the US contract, trucking contractors (local businesses) are required to supply their own security. The host nation truckers may therefore subcontract to security companies. They are required to supply two security escort vehicles per ve supply trucks. See pp.1011. Hammes, Written Statement on Oversight and Government Reform, p. 7. Indeed, the ability of contractors to exploit local knowledge and accomplish this task was cited as a benet of using contractors who could allegedly go where the US forces could not. See ibid. See in this sense, Kress, LOrgane de facto en droit international public, pp. 12732.

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to a state of the conduct of private individuals and non-organized armed groups, compared with organized armed groups. Regarding the rst case, the tribunal asserted that specic instructions to commit an unlawful act were required to prove state responsibility. Concerning organized armed groups, the Appeal Chamber stated:
In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and nancing the group, but also by coordinating or helping in the general planning of its military activity. Only then can the State be held internationally accountable for any misconduct of the group. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specic acts contrary to international law.294

Clearly there is a wide gulf separating the position of the ICTY Appeals Chamber from that of the ICJ. First, the Appeals Chamber makes a distinction according to the organization of the groups concerned which does not appear in the ICJs decisions, either in the Nicaragua case or in the Bosnia v. Serbia case. The level of organization of the group is also not mentioned in the ILC Commentary on the ASR as an element inuencing the degree of control. Moreover, the ICTY Appeals Chambers introduces the concept of overall control and accepts that equipping, nancing, co-ordinating or helping in the general planning of the military activity of an (organized) group is sufcient to demonstrate control by the state, while the ICJs decisions require the state to exercise control over specic operations. Finally, while the Appeals Chamber accepts that all the conduct of the armed group should be imputable to the state concerned, the ICJ in the Nicaragua case was careful to note, in many passages, that the general dependence of the contras on the United States was not sufcient to prove that all the operations launched by the contra force, at every stage of the conict, reected strategy and tactics wholly devised by the United States.295 The ICJ concluded that all the acts of the contras could not be automatically attributed to the United States. So, despite the fact that the Nicaragua case relied on something akin to the ICTYs later test of overall control to establish state responsibility, the ICJ had clearly dismissed it in Nicaragua296 and
294

295 296

Prosecutor v. Tadi (Appeals Chamber Judgment) IT-941-A (15 July 1999), at para. 131. Nicaragua, at 61, para. 106. See the position of Nicaragua as summarized by the ICJ in Nicaragua, at 60, para. 102.

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it subsequently reiterated its dismissal of the overall control test for purposes of attribution in the Bosnia v. Serbia case. In contrast to the ICJ, according to the ICTY Appeals Chamber, the criterion of control will be satised by the mere proof that the state equips and nances the groups, and that it co-ordinates or helps them in the co-ordination of their military activity, provided the relevant groups are organized under a hierarchical command structure.297 Therefore, it is no longer necessary to prove the participation of the state in each specic case where unlawful acts committed by the armed groups are to be attributed to the state. If one follows the interpretation given by the ICTY, arguably, PMSCs may engage the responsibility of the state for all of their unlawful acts while contracted to that state. First, the condition of nancing is satised through the contract. Secondly, equipping the PMSC can also be viewed as arising from the contract, although this may depend on the terms of the contract. If the contract does not stipulate that the state has to pay for the equipment of the PMSC, this surely means that the supply of the equipment is built into the cost of the contract. Ultimately, whether by physical or nancial means, it is still the state that furnishes equipment used by the PMSC during their armed activities. Finally, in the fullment of their contractual obligations, PMSCs are not left without supervision, but their activities are planned in general in the contract with the state, and they may benet from the protection of the state during hostilities to carry out their activities. Arguably, the criterion of overall control proposed by the ICTY Appeals Chamber in Tadi provides more opportunity to hold the state responsible for the conduct of PMSCs than the more restrictive test set by the ICJ in Nicaragua. Having considered the interpretation of the three elements of instruction, direction and control in Article 8 ASR, it is also necessary to examine the question of where responsibility lies when PMSCs or other private actors go beyond the wishes of the state for whom they act, and in so doing act unlawfully. Where does responsibility lie for ultra vires acts by private persons under the effective control of a state? Claus Kress concludes that this rule, allowing the responsibility of states for ultra vires actions of state-controlled organs, does not reect the state of
297

See for an author sharing this view, Wolfrum, State Responsibility for Private Actors, p. 431: it is sufcient that states have entrusted private persons or groups with certain tasks and continue to exercise a general control over the conduct of such persons or groups. It is not necessary that states control such conduct in details to meet the standard under the direction or control in article 8 of the Commissions draft.

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customary law.298 Even if this conclusion is contested in the academic literature,299 one has to distinguish according to the type of entity or person concerned. For lawful instructions given by a state, it is clear, as mentioned above, that the state is not responsible for their unlawful execution, unless the unlawful conduct was incidental to the execution of the state-instructed mission.300 But when the unlawful act has been committed in an operation under the effective command of the state, the latter will be held responsible. The effectiveness of the control requires an irrefutable presumption that the state could avoid the commission of the act, or could willingly decide not to act. This is why the ILC Commentary makes it clear that [w]here persons or groups have committed acts under the effective control of a State, the condition for attribution will still be met even if particular instructions may have been ignored.301 An example to sustain this argument is the 1925 Zaro case. During the SpanishAmerican war, a privately owned ship was used by the United States as a supply ship. The captain and the Chinese crew of the ship were under the command of a US naval ofcer. The responsibility of the United States was established for looting committed by the civilian crew because as a condition of the vessels use as supply ship for US naval operations, it was in fact under the command of a naval ofcer who had come on board to control and direct the movements of the ship. Thus, the ships captain and the crew were effectively under the command of the US Navy. Although the naval ofcer interrupted the ongoing looting, the United States was held responsible for those acts under the criteria of effective control.302 In summary, control by a state is a legal avenue to hold the state responsible when it commands an operation where PMSCs are involved and have committed unlawful acts.303 This is the case when the private company is acting under the direct supervision of an organ of the state, or arguably in a military run facility under the control of the state. In all these cases, the responsibility of the state will remain even if particular instructions have been exceeded or have not been followed.
298 299 300

301 303

Kress, LOrgane de facto en droit international public, pp. 1356. See e.g. de Hoogh, Articles 4 and 8 of the ILC ASR, p. 290. Carsten Hoppe rejects the hypothesis of unlawful acts incidental to a mission as giving rise to the responsibility of the state instructing the PMSC: Passing the Buck, p. 992. 302 ASR with Commentaries 2001, p. 48. The Zaro case, at 160. However, an author has contended that, practically, it will be difcult to prove the degree of control exercised on a private military company. T. Garcia, Privatisation du mercenariat et droit international in Y. C. Zarka (ed.), Guerres et menaces de guerres: quel espoir de paix au XXIe sicle? (Paris: Presses Universitaires France, 2005), p. 131.

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The criterion of instigation

The ICJ judgment in the Bosnia v. Serbia case and the judgment of the ICTY Trial Chamber in Tadi may be criticized for not taking into account situations where a state and an armed group share the same goal to the extent that there is no need for the state to exercise control over all the activities of the armed group in order for the groups acts to be attributable to the state.304 The argument is that when a state shares an unlawful goal with a private group that gives rise to an unlawful act, the requirement of effective control appears to be a formalistic condition.305 This has given rise to academic discussion over the possibility of another criterion that of instigation. The criterion of instigation may be relevant for situations in which a state that shares an unlawful goal with an armed group and gives the group the necessary means to full that goal. Obviously, the mere proof of an identity of goal between an armed group and a state, without any proof of the involvement of the latter in the commission of the unlawful operations (for example by creating the group, sustaining it nancially, providing the logistical means necessary to conduct its attacks, etc.), will not be sufcient to establish the responsibility of the state.306

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Judge McDonald, in her dissenting opinion in Tadi, wondered: Why should there be a requirement that effective control was in fact exercised when the Federal Republic of Yugoslavia (Serbia and Montenegro) was assured that, having transferred ofcers and enlisted men and provided the material, thereby depleting its forces, its plans would be executed. Dissenting opinion of Judge Gabrielle McDonald in Prosecutor v. Tadi (Trial Chamber) IT-941 (7 May 1997), at para. 298. VicePresident Al-Khasawneh dissented from the ICJs holding that the genocide committed at Sebrenica could not be attributable to Serbia and Montenegro because it could not be proven that the persons who committed the massacres were under the effective control on the grounds that In the present case, there was a unity of goals, unity of ethnicity and a common ideology, such that effective control over non-State actors would not be necessary. Dissenting Opinion of Vice-President Al-Khasawneh in Genocide Convention (Bosnia v. Serbia), para. 36. See, contra, the majority opinion at para. 413. A. J. J. de Hoogh poses this question although he does not specically discuss instigation. See de Hoogh, Articles 4 and 8 of the ILC ASR, p. 291; Anna-Lena Sjlund, Criteria for Establishing an International Armed Conict in Bosnia and Herzegovina: An Analysis of the Tadic Judgment in the International Criminal Tribunal for the Former Yugoslavia (1997) 8 Finnish Ybk Intl L 285306, 294. See contra the individual opinion of one judge in Lilian Grimm v. Iran, 16 Iran-USCTR, at 88: Iran is responsible for acts in furtherance of the achievement of the goals of the Islamic Revolution.

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The ICJ jurisprudence may be read as supporting the notion of a criterion of instigation. In Bosnia v. Serbia the Court stated that:
What must be determined is whether FRY organs incontestably having that status under the FRYs internal law originated the genocide by issuing instructions to the perpetrators or exercising direction or control, and whether, as a result, the conduct of organs of the Respondent, having been the cause of the commission of acts in breach of its international obligations, constituted a violation of those obligations.307

The expression used by the ICJ in this case seems to relegate the criterion of effective control to a simple element of proof of the fact that the FRY originated the unlawful act that the FRY was the instigator of it. By doing so, the Court revived the idea rst put forward by Special Rapporteur Ago when drafting Article 8. Ago contended that:
in each specic case in which international responsibility of the State has to be established, it must be genuinely proved that the person or group of persons were actually appointed by organs of the State to discharge a particular function or to carry out a particular duty, that they performed a given task at the instigation of those organs.308

As proposed by Judge McDonald in her dissenting opinion in the Tadi Trial Chamber decision, in such cases there is no need to prove the effective subordination of the group to the state during the commission of the unlawful act. When the state is assured of the execution of the unlawful act due to a common unlawful purpose and having furnished the entity with the means, it no longer needs to supervise it. Supervised or not, this unlawful act will be attributable to the state under the criterion of instigation. If it is established that a state is pursuing the same unlawful goal as a PMSC and its personnel and, through them, has created the conditions necessary for the PMSC to carry out certain unlawful conduct, the state will still be held responsible even if it has not directly involved state organs in the commission of the unlawful act. Since application of this criterion depends on the goal of the state and the group in question being unlawful, we submit that this alternative criterion for attribution will rarely be relevant for PMSCs in their present incarnation. As in the case of instructions given for a specic act, the state responsibility for ultra vires acts of the group with whom it shares
307 308

Genocide Convention (Bosnia v. Serbia), para. 397. Emphasis added. (1974) 2(1) YBILC 2845. Emphasis added.

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an unlawful goal is established by determining whether or not the unlawful conduct was incidental to the achievement of that common unlawful goal. The criterion of instigation, as we have examined it here, is a relatively innovative one. It is based on giving legal effect to the rules of state responsibility. But even those who may oppose this criterion may often reach the same conclusions through the criterion of instruction. The real distinction between these criteria lies in the degree of evidence. When a state decides to provide a group with which it shares the same unlawful objectives the required means to execute them, it is likely that it will authorize the same unlawful act. When proof of a clear instruction is not available, however, the criterion of instigation may provide a means to look to the factual circumstances to decide whether or not the unlawful act has been instigated by that state by giving the required means for its commission.

D Concluding remarks on the attribution of the activities of PMSCs to states


As part of this study of the possible grounds for attribution to a state of the conduct of PMSCs, Articles 4, 5 and 8 ASR have been examined to establish that unlawful activities committed by PMSCs can be attributable to the contracting state in certain circumstances. Undoubtedly there are other articles of the ASR, namely Articles 6 (organs placed at the disposal of a state by another state), 9 (conduct in the absence or default of ofcial authorities), 10 (insurrectional movements) and 11 (conduct acknowledged and adopted by a state as its own), that could also be used as a basis for attribution of the conduct of PMSCs to states. They have not been considered in detail here either because they are more legally straightforward or they are less likely to be relevant in practice. We have examined circumstances where a private entity is considered to be an organ of the state, either under its domestic law or, exceptionally, under international law. This rule is formulated in Article 4 ASR. While it will be rare that a state will formally confer the status of state organ on a private entity, it may be possible, in limited circumstances, that the factual situation of a private entity acting as a state organ may be recognized in international law, so that PMSCs or their employees may be considered state organs under international law. For PMSCs, the most relevant test in international law is membership of state armed forces under IHL. In general international law, the trigger for this classication

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is the factual insertion of the private entity or person into the state structure by virtue of activities carried out under total subordination to the state and its organs. Under the rule expressed by Article 5 ASR, the activities of PMSCs can also be attributed to states under the condition that they exercise elements of governmental authority, autonomously from state organs. There needs to be a genuine delegation of some elements of a states governmental authority, allowing some autonomy to the relevant entity to exercise discretion in the exercise of the power conferred on it. We have attempted to esh out the concept of governmental authority via a comparative approach with other elds of law. In this regard, it appears that some PMSCs do exercise elements of governmental authority and, accordingly, states using them in this way may incur international responsibility for their conduct. In our view, among the many other activities discussed above, particularly with respect to PMSCs, direct participation in hostilities for a state is an exercise of governmental authority. These heads of attribution can catch ultra vires acts if the unlawful act was incidental to the contracted activity. This is signicant: for PMSCs involved in detention, interrogation or directly participating in hostilities, the nature of their activities means that violations are more likely to occur in the course of or incidentally to their contractual duties than for, say, logistics or catering. In that respect, the regime for responsibility seems at least somewhat in line with the activities more prone to abuses. On the other hand, gaps exist. Most notably, many security providers and especially those that are not contracted by states may not be attributable to a state under Articles 4 and 5 ASR. In addition, unless PMSCs are members of state armed forces, states incur no responsibility for off-duty acts (Article 91 AP I). We conclude that Article 8 ASR offers limited possibilities in practice to hold a contracting state responsible for internationally unlawful conduct by PMSCs. It will almost always be difcult to prove that a state has itself instructed or directed the commission of an unlawful act. In this sense, it may be easier to apply the criterion of effective control formulated by the ICJ because that level of control does not have to cover the unlawful act itself, but only the operation in which it occurred. It is nevertheless necessary to prove that the state prepared, planned and nanced every specic operation during which violations of international law occurred. The difculty of meeting this test is highlighted by the fact that this criterion has been invoked mainly to conclude that it was not

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satised in matters before the respective tribunal or courts. The criterion of overall control developed by the ICTY would have been a lower threshold but it is generally considered to be of limited general application, or even awed in its reasoning. Moreover, with the ICJ reiterating its test of effective control in subsequent deliberations, it will always be difcult to assert that the ICTYs overall control test is an accepted criterion for attribution, so that the ICJ test is the more authoritative criterion for attribution to states of the conduct of private groups and individuals in international law. Taking the difculties of proof into account, even when it can be established that a state provided the necessary means to commit an unlawful act, the alternative customary law criterion of instigation (not included in the ASR) may offer another avenue. We believe and continue to hope, however, that it would be very rare in practice for a PMSC and a state to share an unlawful goal. Unlawful conduct by PMSCs or their personnel may be attributable to the state that engages them based on the general rules of state responsibility in international law. Nevertheless, attribution of conduct is not the only grounds for incurring state responsibility for private entities conduct: a failure to exercise due diligence over violations of IHL by private individuals, including PMSCs and their personnel, can also trigger responsibility.

E The responsibility of states for activities of PMSCs due to a lack of due diligence
States can be responsible for the acts of PMSCs or their employees which are attributable to them. In addition, states can also be responsible in relation to the activities of PMSCs and their personnel when they do not take the necessary measures imposed by international law to prevent, investigate or punish the occurrence of unlawful acts. In this part, we will outline the sources of due diligence obligations, sketch the obligations arising from the duty of due diligence itself, and then discuss the implications of this web of obligations for states contracting PMSCs, states on the territory of which PMSCs operate and home states of PMSCs.309

309

This division reects the structure of the Montreux Document and its perception as to which states owe which obligations with respect to which PMSC(s).

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1 Preliminary considerations on due diligence


The ASR deal primarily with what H. L. A. Hart described as secondary norms of international law that is, the norms concerned with the consequences arising from a breach of the primary rules.310 The obligation for states to exercise due diligence, on the other hand, arises directly from the primary rules themselves. Primary rules require specic conduct from states and dene the conditions under which that conduct is compulsory. The ASR thus do not deal with the question of due diligence in any detail.311 By asserting the responsibility of a state because of a lack of due diligence, one is not afrming that the state itself has committed the unlawful act that occurred. Rather, the states responsibility is engaged because it committed a separate violation of international law by not taking all of the necessary measures available to prevent or to punish the occurrence of a specic act.312 Due diligence is an obligation of conduct and not of result. Obligations of result are those obligations that require states to reach a given result, the responsibility of the state being engaged as soon as that result has not been reached. Due diligence obligations, on the other hand, are not focused on the result to be reached, but rather on the particular course of

310

311

H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), p. 77. One should be careful not to equate Harts secondary rules only with the rules governing states responsibility. According to Hart, three kinds of secondary rules exist, namely the rule of recognition, which is a rule by which the system recognizes its own rules; the rules of change, which refers to the rules regulating the change of norms in the system; and the rules of adjudication. Only the latter category refers to state responsibility. See also A. Cassese, International Law, 2nd edn (Oxford University Press, 2005), p. 244. The commentary merely states in passing: Whether responsibility is objective or subjective in this sense depends on the circumstances, including the content of the primary obligation in question. The articles lay down no general rule in that regard. The same is true of other standards, whether they involve some degree of fault, culpability, negligence or want of due diligence. Such standards vary from one context to another for reasons which essentially relate to the object and purpose of the treaty provision or other rule giving rise to the primary obligation. [Emphasis added]

312

ASR with Commentaries 2001, p. 34, para. 3. The ICJ in the Tehran Hostages case considered that Iran was responsible because its own conduct was in conict with its international obligations. Tehran Hostages case, para. 61. Giuseppe Sperduti, Responsibility of States for Activities of Private Law Persons in Encyclopedia of Public International Law (Amsterdam: Max Planck Institute, 1987), p. 374 concerning denial of justice.

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conduct a state must follow to attain or to avoid a given result. The responsibility of the state is not necessarily engaged when the result in question has (or has not) been reached in addition, it is necessary to prove that the state did not adopt the conduct required by the primary norms. To judge whether the state has behaved diligently, its conduct is measured in light of the circumstances of the case. Elements used by international tribunals for this purpose have been described as including the degree of the effectiveness of the states control over the territory, the importance of the interest to be protected and the degree of predictability of the violation.313 In addition, the degree of danger involved may also be a factor in measuring the level of diligence required.314 The obligation to exercise due diligence is measured according to an objective criterion.315 Obligations of due diligence exist in many elds of international law. International tribunals have considered that states are forbidden to allow their territory to be used in a way that prejudices the rights of third states in many cases concerning the law of neutrality; diplomatic protection; and protection of internationally protected persons,316 human rights or the environment. In addition, states must take measures to avoid that their territory is used to violate the rights of other states.317 Due to the multiplicity of the elds of international law where the duty is invoked, some authors have considered that it should not be restricted only to some elds of international law, but that it is simply a basic principle of international law.318 No one denies, in any case, that the degree of
313

314 315

316

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R. Pisillo Mazzeschi, The Due Diligence Rule and the Nature of the International Responsibility of States, 35 (1992) German Ybk Intl L 951, 44. Freeman, Responsibility of States, p. 278, citing US case law. Pisillo Mazzeschi, Due Diligence Rule, p. 42, demonstrates that due diligence does not require an investigation into the subjective attitude of fault on the part of an individual acting as a state organ. By internationally protected persons, here we mean persons beneting from privileges and immunities under international law, such as diplomats and heads of state and government. Corfu Channel case, at 22, and the arbitration on the Island of Palmas (Netherlands/USA) (1928) 2 RIAA 829, at 839. L. Condorelli, The Imputability to States of Acts of International Terrorism (1989) 19 Israel Ybk on Human Rights 23346, 240; R. T. Barnidge, The Due Diligence Principle under International Law (2006) 8 International Community L Rev 81121, 121; For Timo Koivurova the due diligence principle can most appropriately be treated as a general principle of law, the third source of international law as provided in the Statute of the ICJ. Timo Koivurova, What is the Principle of Due Diligence in J. Petman and J. Klabbers (eds.), Nordic Cosmopolitanism: Essays in International Law for Martti Koskenniemi (Leiden: Martinus Nijhoff, 2003), p. 344.

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diligence to be exercised depends on the primary rule concerned. Below, we will focus on the rules obliging states to adopt a particular course of conduct or action regarding PMSCs and their personnel in relation to armed conict owing from the law of neutrality, international human rights law (IHRL) and humanitarian law.

Sources of due diligence relevant for the activities of PMSCs

2.1 Obligations of due diligence in the law of neutrality Obligations of due diligence with respect to neutrality stem in particular from two of the Hague Conventions of 1907 relating to the rights and duties of neutrals in the case of war on land and naval war.319 Article 4 of the War on Land Convention stipulates that Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents. The convention species, however, that a states responsibility would not be engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerents.320 These two provisions nicely circumscribe the due diligence states must exercise to respect their obligation of neutrality: they must not allow general or large-scale recruiting on their territory, but they are not expected to stop every individual who, of his or her own volition, leaves the country to offer services to a belligerent. This immediately raises the question whether PMSCs opening recruiting ofces in third states (i.e. non-belligerents) would trigger the due diligence obligations of those states with respect to neutrality. Two remarks are apposite. First, the provision is restricted to raising corps of combatants. As we explain elsewhere,321 the question whether PMSCs may be considered combatants is a thorny one, but, according to our assessment, the majority of them (at present) are not. Secondly, the provision is also limited in that the recruitment must be designed to assist the belligerents, which suggests that the corps of combatants in
319

320

Hague Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, The Hague, 18 October 1907, in force 26 January 1910 (Hague Convention (V)); Hague Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War, The Hague, 18 October 1907. We note in addition that the convention discussed above relating to the conversion of merchant ships into warships (Hague Convention (VII) relating to the Conversion of Merchant Ships into War-Ships, The Hague, 18 October 1907), and the conventions on mercenaries also have implications with respect to these due diligence obligations. 321 Hague Convention (V), Art. 6. See the discussion in Ch. 4 below.

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question must be formed and destined for a specic conict. The current practice of recruiting for a duty station, when a PMSC has operations in different conicts around the world, makes it difcult to measure this requirement. That being said, this obligation may require states to keep tabs on the type of activities that PMSCs recruiting on their territory are engaged in abroad.322 With respect to neutrality and naval war, Article 8 of the Hague Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War stipulates:
A neutral Government is bound to employ the means at its disposal to prevent the tting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations, against a Power with which that Government is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which had been adapted entirely or partly within the said jurisdiction for use in war.

This provision, which also exists as customary law,323 sets a clear due diligence obligation for states. The obligation is triggered by the fact that the vessel in question is in a territory under the control of a state. The fact that the company outtting the vessel is a legal person is immaterial.324 We know that the PMSC industry has responded to the emergence of modern piracy by offering to provide escort services and defense
322

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324

For an example of national legislation implementing these obligations, see Canadas Foreign Enlistment Act, R.S., 1985, c. F-28. No one has been prosecuted in Canada under this Act: D. Antonyshyn, J. Grofe and D. Hubert, Canada: Beyond the Law? The Regulation of Canadian Private Military and Security Companies Operating Abroad in Christine Bakker and Mirko Sossai (eds.), Multilevel Regulation of Military and Security Contractors (Oxford: Hart Publishing, 2012), pp. 3856. The UK has similar legislation. While Brazil has investigated PMSCs in respect to its recruitment of Brazilians for deployment to Iraq, those prosecutions were based on infringements of Brazilian labour law and not neutrality concerns. See F. Lusa Bordin and Ioulia Dolganova, The Regulatory Context of Private Military and Security Services in Brazil, Priv-War Report, National Reports Series 17/09 http://priv-war.eu, p. 9. The customary version of this provision was applied in relation to the dispute concerning the United States and Great Britain in the Alabama case. The tribunal held Great Britain responsible for its failure to prevent the ship Alabama, which was built, equipped and armed in British territories by private persons, to participate in the American Civil War. Moore (ed.), Decision and Award, Alabama Claims Arbitration, pp. 6535. The drafters of the Hague Conventions took into account that states would be called upon to exercise due diligence with respect to the acts of legal persons. See e.g. Art. 9 of the Hague Convention (V).

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against piratical attacks.325 One company has tted out its own vessel, advertising that its capabilities include dedicated command and control battleeld air support, helicopter decks, a hospital, multiple support vessel capabilities, and a crew of 45 highly trained personnel.326 For the moment, however, these services are offered exclusively as anti-piracy measures, which are not tantamount to hostile operations against a state. In addition, most PMSCs offering security at sea provide on-board services; that is, they place their own crew members directly on a commercial ship (or private yacht).327 Neither of these types of activity gives rise to due diligence obligations under this provision (or its customary equivalent). Nevertheless, the existence of the capability within at least one PMSC to outt its own warship should incite states to recall their due diligence obligations and ensure that such vessels do not depart from their territory to engage in hostilities against belligerents.328

2.2 Due diligence in IHRL The existence of an obligation of due diligence in IHRL is wellestablished. International tribunals and monitoring bodies of human rights treaties have considered on many occasions that states are not only obliged to respect the conventions with respect to acts of their own organs or agents; in addition, they are obliged to protect the protected rights, i.e. to ensure that the rights are respected in the private sphere. By virtue of this duty, states must take the necessary measures to ensure that private individuals do not violate the rights of other individuals. The Human Rights Committee (HRC) considered in General Comment 31 that:
the positive obligation on states Parties to ensure Covenant rights will only be fully discharged if individuals are protected against acts committed by private persons or entities There may be violations

325

326 327

328

M. L. Mineau, Pirates, Blackwater and Maritime Security: The Rise of Private Navies in Response to Modern Piracy (2010) 9 J Intl Business & L 6378, 66. Ibid., pp. 667. Ibid., pp. 679. See also J. S. Martin, Fighting Piracy with Private Security Measures: When Contract Law should Tell Parties to Walk the Plank (2010) 59 American U L Rev 136398, 136970. Again, laws such as Canadas Foreign Enlistment Act cited above also contain provisions directly implementing these obligations. See Foreign Enlistment Act, R.S., 1985, c. F-28, esp. ss. 710. At the moment, most PMSCs conducting anti-piracy activity are stationed in and departing from Yemen.

responsibility due to a lack of due diligence


by states Parties of those rights, as a result of states Parties permitting or failing to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.329

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In Velsquez Rodrguez, the Inter-American Court of Human Rights added that:


An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identied) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.330

This recognition of the existence in IHRL of a due diligence obligation regarding human rights violations by private actors is certainly addressed to the state on the territory of which a PMSC is acting. Beyond that, it raises the question of whether it applies extraterritorially. Article 1 of the American and European Conventions on Human Rights clearly state that the state parties must secure the rights listed in those conventions to everyone within their jurisdiction. Case law from the ECtHR holds that this includes an occupied territory.331 Under the International Covenant on Civil and Political Rights (ICCPR) a universal rather than regional treaty state parties undertake to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized.332 The use of the word and as well as an interpretation of the negotiating history would seem to indicate that territory and jurisdiction are cumulative conditions.333 Consequently, the United States and Israel deny that the covenant is applicable
329

330

331

332 333

HRC, General Comment no. 31: The Nature of the General Legal Obligations Imposed on States Parties to the Covenant, 26 May 2004, UN Doc. CCPR/C/21/Rev.1/Add.13, para. 8. Emphasis added. Velsquez Rodrguez, paras. 172 and 174. See also Osman v. UK (App. no. 23452/94) (GC) ECHR 1998-VIII, para. 115. Loizidou v. Turkey (App. no. 15318/89) (Merits) ECHR 1996-VI 2216, at 22356, para. 56; and Cyprus v. Turkey (App. no. 25781/94) (Merits) ECHR 2001-IV, para. 77. The analysis in this section draws in part on the analysis by Marco Sassli, The Role of Human Rights and International Humanitarian Law in New Types of Armed Conict in O. Ben Naftali (ed.), International Humanitarian Law and International Human Rights Law, Collected Courses of the Academy of European Law (Oxford University Press, 2011), p. 34, which was developed with Lindsey Cameron. Emphasis added. See Michael J. Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed Conict and Military Occupation (2005) 99 AJIL 11941, 119, 1234.

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extraterritorially;334 however, a wide variety of authorities, including the ICJ,335 the UN HRC336 and other states337 have all expressed the opinion that the ICCPR applies in occupied territory.338 Furthermore, the object and purpose of the treaty to protect the human rights of individuals calls for such an interpretation: it would indeed be astonishing that persons whose rights can neither be violated nor protected by the territorial state lose any protection of their fundamental rights against the state that can actually violate and protect their rights. Specically referring to private contractors, the UN HRC, in 2006, in its consideration of reports submitted by the United States, recalled that the ICCPR applies with respect to individuals within their territory and to those subject to their jurisdiction, and that it also applies in times of war.339
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335 336

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See for Israel, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 136, at paras. 102 and 110; Adam Roberts, Prolonged Military Occupations: the Israeli-Occupied Territories since 1967 (1990) 84 AJIL 44103, 712. The Coalition Provisional Authority Administrator in Iraq, Ambassador Paul Bremer, is reported to have stated in a letter to Amnesty International that the only relevant standard applicable to the Coalitions detention practices is the Fourth Geneva Convention of 1949. See Amnesty International, Iraq: Memorandum on Concerns related to Legislation Introduced by the Coalition Provisional Authority, 4 December 2003 (MDE 14/176/2003), www.amnesty.org/en/library/ info/MDE14/176/2003/en. Legal Consequences of the Construction of a Wall, at paras. 10911. Concluding Observations of the HRC: Israel, 18/08/98, UN Doc. CCPR/C/79/Add.93, para. 10; General Comment no. 31 of the UN HRC, para. 10. UK Ministry of Defence, The Manual of the Law of Armed Conict (Oxford University Press, 2004), para. 11.19; Germany, UN Doc. CCPR/CO/80/DEU/Add.1, 5 January 2005 (Follow-up response by state party to the HRC); Poland, UN Doc. CCPR/CO/82/POL, 2 December 2004, para. 3 (HRCs concluding observations). Other states parties have answered questions regarding the actions of their national forces in peacekeeping missions without contending that the ICCPR does not apply beyond their state borders or in that context (Italy, UN Doc. CCPR/C/SR.1707, para. 22; Belgium, UN Doc. CCPR/C/SR.1680, para. 22; Canada, UN Doc. CCPR/C/SR.1738, 7 March 1999, paras. 29 and 32. See also references in Walter Klin, Report on the Situation of Human Rights in Kuwait under Iraqi Occupation, UN Doc. E/CN.4/1992/26, 16 January 1992, paras. 509. HRC, Consideration on the Reports Submitted by States Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee, United States of America, UN Doc. CCPR/C/USA/CO/3/Rev.1, 87th Sess., 18 December 2006, para. 10 (HRC, Concluding Observations, US 2006). In its comments on the concluding observations of the committee, the United States restated its long-standing position that the Covenant does not apply extraterritorially; see Consideration on the Reports Submitted by States Parties under Article 40 of the Covenant. Concluding Observations of the Human Rights Committee. United States of America, Addendum, Comments by the Government of the United States of America on the concluding observations of the Human Rights Committee, UN Doc. CCPR/C/USA/CO/3/Rev.1/Add.1, 12 February 2008, p. 2.

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The committee also recalled the obligation of the United States to conduct investigations involving all allegations concerning suspicious deaths, torture or cruel, inhuman or degrading treatment or punishment inicted by its personnel (including commanders) as well as contract employees in detention facilities in Guantanamo Bay, Afghanistan, Iraq and other overseas locations as well as to prosecute and punish those responsible for the violations.340 If IHRL applies extraterritorially, the next question that arises is: when can a person be considered to be under the jurisdiction of a state and therefore to benet from the obligation of the state to protect his or her rights. Is it limited only to occupied territory? Does it extend to all acts within occupied territory? Technically, the level of control a state must exercise in order to be bound by its international human rights obligations depends on each treaty, but there has been a certain amount of convergence in the interpretation of jurisdiction in recent cases.341 The Inter-American Court and Commission on Human Rights have tended to adopt broad views of what may give rise to a state having extraterritorial jurisdiction. The widely cited case of Alejandro v. Cuba illustrates that physical control over territory exercised through having boots on the ground is not necessary for jurisdiction to arise in the Inter-American system. In that case, the commission held that the applicants came within Cuban jurisdiction when Cubas aeroplanes red on another aeroplane ying in international airspace.342 The ECtHR had articulated a strict test in Bankovi that a state must exercise effective control over territory by being physically present on that territory and within the espace juridique of the ECHR in order to have jurisdiction343 but it seems to have shifted, over the past decade, to a standard that does not always require boots on the ground. In Issa, the ECtHR looked for evidence of effective territorial control. It found, on the facts, that Turkish forces in northern Iraq did not exhibit that level of control and therefore, in its decision on the merits, held that in fact the Iraqi applicants claim was inadmissible.344 In a more recent case,
340 341

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HRC, Concluding Observations, US 2006, para. 14. J. Cerone, Human Dignity in the Life of Fire: The Application of International Human Rights Law During Armed Conict, Occupation, and Peace Operations (2006) 39 Vanderbilt J Transnl L 1447510, 14912. Alejandro v. Cuba, Inter-American Commission on Human Rights, Report no. 86/99, Case no. 11.589, 29 September 1999, para. 25. Bankovi v. Belgium (App. no. 52207/99) (Admissibility) ECHR 2001-XII, paras. 61 and 71. Issa and ors. v. Turkey (App. no. 31821) (Merits) ECHR 16 November 2004, para. 69.

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however, the ECtHR has held that jurisdiction can ow from facts not unlike those in Alejandro v. Cuba (or indeed, in Bankovi). Pad v. Turkey involved a skirmish on the TurkishIranian border in which seven Iranians were killed by Turkish helicopter gunships. The Court held that it is not required to determine the exact location of the impugned events, given that the Government had already admitted that the re discharged from the helicopters had caused the killing of the applicants relatives . Accordingly, the Court nds that the victims of the impugned events were within the jurisdiction of Turkey at the material time.345 This conclusion is clearly at variance with Bankovi, where, as one commentator put it, the Court found that jurisdiction could not arise by the mere fact of dropping bombs on individuals.346 It would be specious if, in future, the Court were to distinguish Pad exclusively on the grounds that Turkey had not formally contested that it had jurisdiction over the applicants relatives. For all treaties, jurisdiction could also arise through a states extraterritorial exercise of control over persons, at least when those persons are detained by agents of that state. With regard to the control over detainees, in the case of Al-Saadoon v. UK, the ECtHR had to decide whether the transfer of Iraqi prisoners from UK custody to the Iraqi authorities contravened the ECHR as the British authorities had not obtained any guarantees that the death penalty would not be imposed on the prisoners.347 The detainees, who had been arrested in 2003 by UK forces, were controversially transferred to the Iraqi authorities on 31 December 2008, a few hours before the mandate of the Multi-National Force (MNF) expired. The applicants contended that they were within the jurisdiction of the UK within the meaning of Article 1 ECHR.348 The Court stated in its decision on admissibility that given the total and exclusive de facto, and subsequently also de jure, control exercised by the United Kingdom authorities over the premises in question [in Iraqi territory], the individuals detained there, including the applicants, were within the United Kingdoms jurisdiction.349 The convention was therefore applicable and
345 346

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Pad v. Turkey (App. no. 60167/00) (Admissibility) ECHR 28 June 2007, para. 54. N. Mole, Issa v. Turkey: Delineating the Extra-territorial Effect of the European Convention on Human Rights (2005) 1 European Human Rights L Rev 8691, 87. Al-Saadoon and Mufdhi v. UK (App. no. 61498/08) (Admissibility) ECHR 30 June 2009 (Al-Saadoon). Art. 1 ECHR, provides that: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms dened in Section I of [the] Convention. Al-Saadoon, para. 88.

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the case admissible. The Court based its decision on the fact that, inter alia, Coalition Provisional Authority (Iraq) (CPA) Order no. 17 provided that all premises used by the MNF should be inviolable and subject to the exclusive control of the MNF.350 As a result, the UK exercised de facto and de jure control over the premises. In circumstances where no one is detained but the question of jurisdiction arises, a solution could be found through a functional approach, distinguishing the degree of control necessary according to the right to be protected.351 Such a sliding scale approach, which was explicitly rejected by the ECtHR in Bankovi,352 would reconcile the object and purpose of IHRL to protect everyone with the need not to bind states by guarantees they cannot deliver outside their territory and the protection of the sovereignty of the territorial state (which may be encroached upon by international forces protecting human rights against anyone other than themselves).353 This functional approach would mean, for example, that a state has to respect the right to life of a person by omitting to attack that person as soon as its armed forces could affect that right by their attack. On the other hand, a due diligence obligation to protect a person against human rights violations by others would only arise when it has full control over that person (through detention) or a high degree of control over the place where the person is found. While human rights and correlative due diligence obligations thus arise for a state acting extraterritorially, the key question for our purposes is whether and how the actions of a private military or security contractor afliated with a state can trigger such obligations. According to one analysis, the use of PMSC contractors in interrogations in Abu Ghraib prison in Iraq on behalf of US forces gives rise to a due diligence obligation on the part of the United States based on the ICCPR.354 In fact, however, this is a different case because: (a) conducting interrogations in that context may easily be understood as an inherently

350 351

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Ibid., para. 87. Cerone, Human Dignity in the Line of Fire, 1494507, frames the discussion in terms of a range of applicable rights and in terms of the level of obligation binding states acting extraterritorially. Bankovi, paras. 756. See the very nuanced discussion by R. Wilde, Triggering State Obligations Extraterritorially: The Spacial Test in Certain Human Rights Treaties in R. Arnold and N. Qunivet (eds.), International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (Leiden: Martinus Nijhoff, 2008), pp. 14452. See Hoppe, Passing the Buck, esp. pp. 9981000.

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governmental function so that in any case the contractors conduct is attributable to the United States under Article 5 ASR, thus triggering extraterritorial application of human rights obligations; and anyway, (b) the obligation under Article 7 ICCPR carries a duty to prevent torture, inhuman or degrading treatment or punishment by people acting in their ofcial capacity, outside their ofcial capacity or in a private capacity.355 Beyond this specic case, what about due diligence obligations of a state regarding a PMSC contracted to provide non-military security services in an area over which the state does not exercise any signicant degree of control? When the PMSC in question cannot be otherwise attributed to the hiring state under the normal operation of Articles 4, 5 or 8 ASR, are the hiring states due diligence obligations with respect to the acts of that PMSC nevertheless triggered? If not, is it only the territorial state whose capacity for action may be severely limited that has due diligence obligations with respect to that PMSC? This is the worrisome area where there is potentially a gap.

2.3 Due diligence towards specic categories of persons and objects in the Hague Regulations and Geneva Conventions The term due diligence itself does not appear in the Geneva Conventions or their Additional Protocols.356 However, just as in any other eld of international law, the existence of an obligation of due diligence depends on the content of the primary norm and the implications which can be drawn from the text of the provision. In order to determine whether states have a duty to exercise due diligence under IHL over activities of non-state actors such as PMSCs, it is necessary to analyse each individual provision separately. In fact, we must even look beyond the Geneva Conventions and Protocols, as it is Article 43 of the Hague Regulations of 1907 which imposes one of the clearest due diligence obligations in IHL. Indeed, the ICJ relied on this century-old provision in 2005 to hold Uganda, as the occupying power in the Ituri district,
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General Comment no. 20, replaces General Comment no. 7: Concerning Prohibition of Torture or Cruel Treatment or Punishment (Art. 7), 10 March 1992, CCPR General Comment no. 20, para. 1. The term is used in the Commentary on Art. 91 of AP I, however, which deals with the responsibility of states for acts of their armed forces. See Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, p. 1058, para. 3660. DoswaldBeck has pointed out the absence of the term due diligence in the Conventions and Protocols. See Doswald-Beck, Private Military Companies, p. 133.

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responsible for the acts of private parties in Congo.357 The Court held that, as the occupying power, Ugandas responsibility [was] engaged for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account.358 In the following pages, we will provide an analysis of the contours of the due diligence obligation imposed by Article 43 of the Hague Regulations. We will then examine a number of provisions in the Geneva Conventions (with the exception of Article 1 common to the conventions, which will be discussed separately) that underpin due diligence obligations for states in international and non-international armed conicts. Article 43 of the Hague Regulations provides a mini-constitution for occupying powers. It stipulates that an occupying power shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. The terms all the measures in his power and as far as possible denote that the duties imposed by Article 43 are not obligations of result but require an exercise of due diligence. It is important to clarify the meaning of public order and safety that the occupying power must take feasible measures to restore and maintain. In order to generate a sense of what is meant by public safety, it is necessary to refer to the French text of Article 43, lordre et la vie publics, as the French version of the Hague Regulations is the authentic one.359 Arguably, la vie publique is much broader than safety. According to the travaux prparatoires of the provision, it encompasses des fonctions sociales, des transactions ordinaires, qui constituent la vie de tous les jours (social functions, ordinary transactions which constitute daily life).360 Many scholars and the Israeli Supreme Court have endorsed this interpretation, considering that the French expression vie civile should be translated as meaning civil life.361 Arguably, this
357 359 358 Congo v. Uganda, para. 179. Ibid. Emphasis added. D. Schindler and J. Toman, The Laws of Armed Conicts, 4th edn (Leiden: Martinus Nijhoff, 2004), p. 56. See Ministre des Affaires Etrangres de Belgique, Actes de la Confrence de Bruxelles de 1874, p. 23, repr. in Edmund H. Schwenk, Legislative Power of the Military Occupant under Article 43, Hague Regulations (19445) 54 Yale LJ 393416, 398. Eyal Benvenisti, The International Law of Occupation, 2nd edn (New Jersey: Princeton University Press, 2004), p. 9; M. S. MacDougal and F. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion (New Haven: Yale University Press, 1961), p. 747; Keith Berriedale, Wheatons Elements of International

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would be in line with the basic premise of international law,362 conrmed in the introductory sentence of Article 43, that, if necessary, all functions of government must be provisionally assumed by the occupying power in order to guarantee the normal life of the population.363 Therefore, the civil life refers to the entire social and commercial life of the society364 and can therefore encompass education, social welfare services, public health and sanitation. Concerning the notion of public order, the United States Military Tribunal in the Hostages case stated, international law places the responsibility upon the commanding general of preserving order, punishing crime and protecting lives and property within the occupied territory. His power of accomplishing these ends is as great as his responsibility. But he is denitely limited by recognized rules of international law.365 In Congo v. Uganda, the ICJ held that Ugandas obligations under Article 43 included a duty to take appropriate measures to prevent the looting, plundering and exploitation of natural resources in the occupied territory to cover private persons in this district and not only members of Ugandan military forces.366 The ICJ described the obligation under Article 43 globally as comprising the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party.367

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Law, 6th edn (London: Stevens and Sons, 1929), p. 783; David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany: State University of New York Press, 2002), p. 57. J. C. Llorens, Les Principes fondamentaux du droit international et les limites aux transformations dans les territoires occups in Proceedings of the Bruges Colloquium: Current Challenges to the Law of Occupation (201 October 2005) (2006) 34 Collegium, p. 69. Marco Sassli, Legislation and Maintenance of Public Order and Civil Life by Occupying Powers (2005) 16 EJIL 6634; G. H. Fox, Humanitarian Occupation (Cambridge University Press, 2008), pp. 2356. Berriedale, Elements of International Law, p. 783. See also Harvards Program on Humanitarian Policy and Conict Research (HPCR), Private Security Companies in the Occupied Palestinian Territory (OPT): An International Humanitarian Law Perspective (Policy Brief, March 2008), p. 12. USA v. List and ors, American Military Tribunal, Nuremberg (1948) 11 Trials of War Criminals, 1230, at 12445. The tribunal went on to declare that A commanding general of occupied territory is charged with the duty of maintaining peace and order, punishing crime, and protecting lives and property within the area of his command. His responsibility is coextensive with his area of command. He is charged with notice of occurrences taking place within that territory dereliction of duty rests upon him. Ibid., at 12701. 367 Congo v. Uganda, para. 248. Ibid., para. 178.

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Reecting on events in occupied territories in recent conicts, one is struck by the fact that the use of PMSCs in that context may be both a means of implementing a states obligations under Article 43 but equally a factor engaging the states due diligence responsibility. States could argue that it is precisely the high rate of looting and criminality in conict zones (by locals and others) that pushes them to contract PMSCs to conduct security in such numbers. The presence of PMSCs (especially as security guards but also in other roles) is at least in theory a means for states to re-establish order. One could even go so far as to suggest that the presence of civilians as security guards may lend itself to a more normal daily existence for the inhabitants of the territory than if security functions to deter even petty criminality were carried out by uniformed military personnel. Moreover, states could argue, PMSCs that carry out reconstruction work are crucial to fullling the obligation to restore aspects of public life such as education, sanitation and so forth. Hiring PMSC security guards to guard those companies is merely a part of that. On the other hand, there are credible reports, including in ofcial investigations by the states concerned, that the methods used by some PMSCs to ensure security involve a questionable use of force, to say the least.368 This has particularly been the case with PMSCs conducting convoy protection in Iraq,369 but there are other examples of allegedly quick trigger ngers in other contexts, including, for example, PMSCs ring automatic weapons pre-emptively whenever they passed through a town where they had previously been attacked by a roadside bomb.370 Failure to sanction any excessive use of force by PMSCs may entail a state failing to live up to its due diligence
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With respect to Iraq, see Human Rights First, Private Security Contractors at War: Ending the Culture of Impunity (2008), www.humanrightsrst.org/wp-content/ uploads/pdf/08115-usls-psc-nal.pdf, pp. 610 and throughout report (Human Rights First, Private Security Contractors at War). The incidents described in the report occurred in 2005 and thereafter, such that the United States and the UK are generally not considered to have been occupying powers at the time of the events described. Nevertheless, they serve as examples of the types of acts that would fall under the due diligence obligations in Art. 43 of the Hague Regulations. The problem has continued with respect to convoy protection in Afghanistan, which is not currently an occupied territory, but where even US General Petraeus, the top US ofcer in Afghanistan, has admitted that private security companies conducting convoy protection frankly have at times turned certain roads into shooting galleries and have become part of the problem instead of part of the solution. Reuters, Summit Karzai OKs some private security rms Petraeus, 22 September 2010, www.alertnet. org/thenews/newsdesk/N22273516.htm. Human Rights First, Private Security Contractors at War, p. 8.

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obligation to protect the inhabitants of the occupied territory against acts of violence (as the ICJ described the duty). The broad language of the ICJ in Congo v. Uganda suggests that occupying powers must ensure that PMSCs and their personnel respect IHL and human rights in their activities. What is crucial is that this applies not only to the PMSCs contracted by the occupying power itself, but more generally to all PMSCs operating in or on the occupied territory. This duty of due diligence under Article 43 of the Hague Regulations may thus in some respects attenuate the difculties owing from the web of contracts and subcontracts making direct attribution of a PMSC to a state an onerous or in some cases an impossible task. In addition, it should be recalled that occupying powers must, as part of their obligation to maintain public order, prosecute any crimes which are committed, as clearly stated in the Hostages case. In the light of a lack of a clear legal framework that would have allowed for the prosecution and punishment in home or sending states of PMSCs operating in Iraq during the rst few years of the war there, one may question whether CPA Order no. 17, which provided immunity for PMSCs operating in Iraq, did not a priori violate the United States and UKs obligations of due diligence as long as they remained occupying powers there.371 Finally, we note that the Montreux Document lists as the rst obligation which states contracting PMSCs must recall is the obligation for occupying powers to exercise vigilance in preventing violations of international humanitarian law and human rights law.372 Beyond Article 43 of the Hague Regulations, which only applies to occupying powers and occupied territories, other provisions imposing duties of due diligence can be found in the Geneva Conventions and their Additional Protocols. For the sake of clarity, we will rst examine duties of due diligence with regard to private actors arising in situations of international armed conict and subsequently those arising in situations of non-international armed conict.

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CPA/ORD/27 June 2004/17, section 4(3): Contractors shall be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto. Even though 4(7) of that Order states that the provisions were without prejudice to the exercise of jurisdiction by the sending state or state of nationality of the contractor, arguably the knowledge that the order may have introduced a gap in the possibility to prosecute in itself contravened the due diligence obligations of the occupying powers. A previous version of this order existed. Montreux Document, point 1.

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In IHL of international armed conicts, a number of provisions may be read together to distil a principle of due diligence with respect to the treatment of wounded, sick and shipwrecked members of the armed forces and with respect to other categories of protected persons. Article 12 GC I stipulates, Members of the armed forces and other persons mentioned in the following Article, who are wounded or sick, shall be respected and protected in all circumstances.373 Interpreting the term to respect and to protect, the ICRC Commentary on Article 12 GC I declares that:
The word respect (respecter) means, according to the Dictionary of the French Academy, to spare, not to attack (pargner, ne point attaquer) (2), whereas protect (protger) means to come to someones defence, to lend help and support (prendre la dfense de quelquun, prter secours et appui). The introduction of these words made it unlawful for an enemy to attack, kill, illtreat or in any way harm a fallen and unarmed soldier, while it at the same time imposed upon the enemy an obligation to come to his aid and give him such care as his condition required.374

Several provisions mention the obligation to protect specic categories of persons.375 Article 18 GC I is addressed directly to the civilian population, stating (in part), The civilian population shall respect these wounded and sick, and in particular abstain from offering them violence. The ICRC Commentary with respect to this admonition refers to the connection of the obligation in Article 18 with that of Article 12 GC I.376 One may therefore conclude that, while private persons have the obligation to respect the rights of soldiers who do not participate in hostilities or no longer do so, states must ensure that this obligation is respected by
373 374

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Art. 12 GC II is essentially identical. Jean Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva: ICRC, 1952), pp. 1345. See esp. Art. 24 GC I (medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical units and establishments, as well as chaplains attached to the armed forces), Art. 16 GC IV (wounded and sick and inrm civilians as well as expectant mothers) and Art. 10 AP I (wounded, sick and shipwrecked). The same protection is extended to members of armed forces covered by Art. 25 GC II or Art. 67 AP I and to the personnel of civilian hospitals according to Art. 20(1) GC IV. See also Art. 62 AP I on civilian civil defence organizations and their personnel. Pictet, Commentary GC I, p. 191.

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those private persons by exercising due diligence. This general obligation entails that states must also ensure that PMSCs do not violate the rights of fallen and unarmed soldiers. Article 15 GC I (echoed by a similar provision in Article 18 GC II) singles out a specic case where states must exercise due diligence regarding fallen and unarmed soldiers, rendering the general principle under Article 12 GC I more concrete. Article 15 GC I states:
At all times, and particularly after an engagement, Parties to the conict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.

The Commentary on this provision spells out the extent of this obligation, stating:
the wounded and the dead must be guarded and, if necessary, defended against all parties, whether military or civilian, who may seek to lay hands on them. Combatants, like medical personnel, are called upon to prevent this, going, if necessary, to the length of using their arms for the purpose.377

This makes clear that states interacting with wounded and sick persons must ensure (by all lawful means) that PMSCs and their personnel do not loot or ill-treat them. Again, as this is a general obligation, it extends to the actions of any PMSC in a conict zone, not only those under contract with a belligerent party. Article 19 GC I requires states to respect and protect medical units and establishments.378 The expression respect and protect has also here been construed as meaning that states should lend them support and help when their rights are threatened by third parties, including when such acts come from private persons.379 The same duty to protect exists regarding civilian hospitals380 and regarding the convoys of vehicles or hospital trains on land or specially provided vessels on sea, conveying wounded and sick civilians, the inrm and maternity cases.381 POWs constitute an important and separate category of protected persons, whose treatment is governed by the detailed regime in Geneva
377 378 379 380

Ibid., p. 152. See also Art. 8 AP II. See also Art. 35 GC I concerning medical transport, Art. 22 GC II, Art. 21 and 24 AP I. Pictet, Commentary GC I, p. 196. See also the same provision in Art. 11(1) AP I. 381 Art. 18 GC IV. Art. 21 GC IV.

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Convention III. Clear due diligence obligations with regard to the treatment of POWs ow directly from the text of GC III. In particular, Article 13 GC III provides that prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. This has been interpreted by the ICRC Commentary as follows:
To protect someone means to stand up for him, to give him assistance and support and also to defend or guard him from injury or danger. It is therefore a positive obligation for the Detaining Power at all times which follows from the obligation to treat prisoners humanely. The protection extends to moral values, such as the moral independence of the prisoner (protection against acts of intimidation) and his honour (protection against insults and public curiosity).382

Concerning protected civilian persons,383 Article 27 GC IV provides that:


Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.384

Here again the Commentary expressly takes note that [t]he Convention does not conne itself to stipulating that such acts are not to be committed. It goes further; it requires states to take all the precautions and measures in their power to prevent such acts and to assist the victims in case of need.385 When it comes to due diligence obligations in the context of noninternational armed conicts, we note that Article 3 common to the Geneva Conventions does not expressly mention that persons who do
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Jean Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, Third Geneva Convention Relative to the Treatment of Prisoners of War (Geneva: ICRC, 1960), p. 141. The denition of who is a protected civilian person is set out in Art. 4 GC IV. See also Prosecutor v. Tadi (Appeals Chamber Judgment) IT-941-A (15 July 1999), at paras. 1656 regarding an allegiance criteria. See also Art. 76(1) AP I concerning the special protection for women. Jean Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: ICRC, 1958), p. 204.

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not (or no longer) participate in hostilities must be protected against private acts. However, this silence should not be interpreted as meaning that there is not a due diligence obligation on the state in this regard. Article 3 should be construed to mean that all persons who are hors de combat should be given adequate protection, especially for the purpose of our study, with regard to private acts.386 Similar obligations are set out in Additional Protocol II with respect to collecting and protecting wounded persons after engagements,387 protecting medical and religious personnel388 and protecting medical units and transports389 in noninternational armed conicts. Both in international and non-international armed conicts, then, certain IHL obligations impose due diligence obligations on states in relation to the activities of private persons. This is logical, as the guarantees provided by IHL to persons affected by international armed conict can be threatened by private persons or state agents. Due diligence obligations also cover objects such as civilian hospitals and medical convoys which are useful for the relief of protected persons. Indeed, these obligations are manifestations of the principle of humanity, according to which those who do not (or no longer) participate in hostilities shall not be ill-treated simply for belonging to another party to the conict. According to the Commentary, this protection covers all aspects of their lives.390

2.4 A global duty of due diligence in IHL by virtue of Article 1 common to the Geneva Conventions In contrast to specic provisions of the Geneva Conventions which are limited in scope both concerning the persons and objects regarding which due diligence needs to be exercised and regarding the state obliged
386 387

Ibid., p. 57. See Arts. 7 and 8 AP II and Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, p. 1408, para. 4635: This implies taking measures to remove the wounded, sick and shipwrecked, if possible, from the scene of combat and shelter them, and to ensure that they are effectively respected, i.e. that no one takes advantage of their weakness in order to mistreat them, steal their belongings, or harm them in any other way. The duty to respect and protect is incumbent on everyone, both on the members of armed forces or armed groups and on the civilian population. 389 Art. 9 AP II. Art. 11 AP II. See e.g. the Commentary under GC I, Pictet, Commentary GC I, p. 137.

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to exercise due diligence common Article 1 seems to have a far broader scope of application. Article 1 common to the four Geneva Conventions stipulates, The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.391 This provision in part reiterates the obvious point pacta sunt servanda that states must abide by and uphold the treaty obligations to which they have committed themselves. The main question we will address in this section is whether this provision embodies a due diligence obligation regarding private persons that would oblige states to take measures bearing directly on PMSCs or their employees in order to ensure the respect of IHL. As the result of a comprehensive study of the travaux prparatoires of the Geneva Conventions, Frits Kalshoven contends that common Article 1 aimed at proclaiming the application of humanitarian law to the civilian population of each contracting state to ensure that individuals are subject to norms of IHL and respect in armed conict, especially in non-international armed conicts. In Kalshovens words, its main raison dtre appeared to lie in getting populations involved in the process of creating and maintaining respect for the principles embodied in the Conventions, thus binding them to such respect even in time of civil war or non-international armed conict.392 Indeed, it is absolutely uncontroversial that states must ensure respect of the conventions by everyone in their jurisdiction, including civilian and military personnel.393 There is neither a logical nor a conventional reason to exclude private persons or groups from this ambit. The ICRC Commentary acknowledges the almost redundant nature of this aspect of common Article 1, pointing out that When a State contracts an engagement, the engagement extends eo ipso to all those over whom it has authority, as well as to the representatives of its authority; and it is under an obligation to issue the necessary orders.394 It goes on to say that the use of the words to ensure respect was, however, deliberate: they were intended to emphasize and strengthen the responsibility of the Contracting Parties.395
391 392

393 394 395

Art. 1(1) AP I contains the same provision. F. Kalshoven, The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit (1999) 2 Ybk Intl Humanitarian L 3, 16. See also Laurence Boisson de Chazournes and Luigi Condorelli, Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests (2000) 82 Intl Rev Red Cross 6787, 69. Pictet, Commentary GC I, pp. 256. Ibid., pp. 267. Note that this passage exists only in the commentary on GC I. Ibid., p. 26.

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The approach of the ICRC Commentaries can be conrmed by another analysis. The ICJ considered in Nicaragua that the duty to ensure respect of IHL was derived from the general principles of humanitarian law to which the Conventions merely give specic expression.396 This nding of the Court reveals the institutional or constitutional397 nature of the rule. Arguably, if general principles of IHL oblige states to take measures to ensure that other states are complying with IHL, they must also oblige them to take the necessary measures to ensure that private persons respect them. After all, whether a violation of IHL is caused by a private person or by an agent of a state, it contradicts the legal order established by the conventions, and, therefore, it constitutes a disregard for the values the parties intended to protect. According to this logic, either under common Article 1 or the general principles it embodies, third states are obliged to take the necessary steps available to them to ensure that violations of IHL do not occur, whether such violations are caused by states or by private persons. An example of this is the fact that the UN General Assembly considered that, on the basis of Article 1 common to the Geneva Conventions, states parties to GC IV had to actively discourage activities that directly contribute to any construction or development of Israeli settlements in the Occupied Palestinian Territory including Jerusalem, as these activities contravene international law.398 Under Article 1 common to the Geneva Conventions and Additional Protocol I, states are obliged to take all the measures in their power to ensure that private individuals do respect IHL. The majority of the doctrine shares this conclusion even if the authors do not always explain its rationale.399
396

397 398

399

Nicaragua, at 114, para. 220. In addition, Art. 1 applies to non-international armed conicts: see Birgit Kessler, Die Durchsetzung der Genfer Abkommen von 1949 in nichtinternationalen bewaffneten Konikten auf Grundlage ihres gemeinsamen Art. 1 (Berlin: Duncker und Humblot, 2001). Boisson de Chazournes and Condorelli, Common Article 1 Revisited, p. 85. UNGA Res., Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory, 13 November 1997, UN Doc. A/RES/ES-10/4. See also UNSC Res. 681, 20 December 1990, operative para. 5; UNGA Res. ES-10/2 of 5 May 1997, ES-10/3 of 30 July 1997, ES-10/4 of 19 November 1997, ES-10/6 of 24 February 1999 and the Report of the Chairman of an Experts Meeting Held on the Fourth Geneva Convention in Geneva, 279 October 1998 (all of them reproduced in Marco Sassli and Antoine Bouvier, How Does Law Protect in War? (Geneva: ICRC, 2006), pp. 130320), in particular the Declaration adopted by a Conference of the High Contracting Parties to the Fourth Geneva Convention convened on the basis of Art. 1 common in Geneva, 5 December 2001, www.eda.admin.ch/ eda/e/home/foreign/hupol/4gc.html, in which 114 states parties participated. Dieter Fleck, International Accountability for Violations of the Ius in Bello: The Impact of the ICRC Study on Customary International Humanitarian Law (2006) 11 J Conict

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Most scholarly writings on common Article 1 have addressed the question as to whether the obligation to ensure respect entails a requirement that states not parties to a conict must take measures to induce parties to a conict to respect IHL. Today, common Article 1 is widely understood as referring to violations by other states;400 scholarly focus on this issue arguably stems from the slightly controversial nature of such an obligation.401 Frits Kalshoven has argued that the drafters of common Article 1 did not intend to impose an international obligation on third parties regarding violations of IHL committed during an armed conict.402 As true as this nding was at the moment of drafting of common Article 1, subsequent practice has interpreted it as meaning that all states are obliged to take steps to ensure that IHL is respected by parties to the conventions, whether they are parties to the conict or not.403 State practice concerning
and Security L 17999, 180; T. Kamenov, The Origin of State and Entity Responsibility for Violations of International Humanitarian Law in Armed Conicts in F. Kalshoven and Y. Sandoz (eds.), Implementation of International Humanitarian Law (Dordrecht: Martinus Nijhoff, 1989), pp. 17982, qualies such responsibility as semi-direct; and Levrat, N. Levrat, Les Consquences de lengagement pris par les hautes parties contractantes de faire respecter les conventions humanitaires in F. Kalshoven and Y. Sandoz (eds.), Implementation of International Humanitarian Law (Dordrecht: Martinus Nijhoff, 1989), pp. 27491, considers that this obligation of conduct has to be fullled by the mechanisms prescribed by IHL. Luigi Condorelli and Laurence Boisson de Chazournes, Quelques remarques propos de lobligation des tats de respecter et faire respecter le droit international humanitaire en toutes circonstances in C. Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (Geneva: ICRC/Martinus Nijhoff, 1984), p. 24. HPCR, Private Security Companies in the Occupied Palestinian Territory (OPT): An International Humanitarian Law Perspective (Policy Brief, March 2008), p. 13. The commentaries to the common articles all vary slightly, but all make this essential point. See Pictet, Commentary GC I, pp. 247; ibid., Commentary GC II, pp. 246; ibid., Commentary GC III, pp. 1718; ibid., Commentary GC IV, pp. 1517. See also M. Bothe, K. J. Partsch and W. A. Solf, New Rules for Victims of Armed Conicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (The Hague: Martinus Nijhoff, 1982), p. 43; Condorelli and Boisson de Chazournes, Quelques remarques, pp. 2635; Boisson de Chazournes and Condorelli, Common Article 1 Revisited, 6787; Levrat, Les Consquences de lengagement, pp. 26396; Umesh Palwankar, Measures Available to States for Fullling their Obligations to Ensure Respect for International Humanitarian Law (1994) 34 Intl Rev Red Cross 925. See esp. Kalshoven, From Tiny Seed to Ripening Fruit. In the meantime, the customary nature of that interpretation of the rule has been outlined in the ICRCs study on customary IHL. See Henckaerts and Doswald-Beck, Customary International Humanitarian Law, vol. 1, p. 509. Kalshoven, From Tiny Seed to Ripening Fruit. See in this sense, Boisson de Chazournes and Condorelli, Common Article 1 Revisited, p. 69; Maya Brehm, The Arms Trade and States Duty to Ensure Respect for

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402 403

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Israel clearly goes in this direction,404 the majority of legal authors espouse this nding405 and the ICJ has conrmed this stance. In Nicaragua, it considered that the United States was obliged, by virtue of the humanitarian principles expressed by common Article 1, not to encourage persons or groups engaged in the conict in Nicaragua to act in violation of the provisions of Article 3 common to the four 1949 Geneva Conventions,406 even if the United States was not a direct party to that armed conict. In the Legal Consequences of the Construction of a Wall case, the same Court also considered that It follows from [common Article 1] that every state party to that Convention, whether or not it is a party to a specic conict, is under an obligation to ensure that the requirements of the instruments in question are complied with.407 Thus, there is a consensus on the thrust of Article 1 in the sense that any state party to the Geneva Conventions, even if it is not party to a particular conict, is obliged to take measures in order to secure the respect of humanitarian law by other subjects of IHL.408

404 405

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Humanitarian and Human Rights Law (2007) 12 J Conict and Security L 35987, 371; Birgit Kessler, The Duty to Ensure Respect under Common Article 1 of the Geneva Conventions: Its Implications on International and Non-International Armed Conict (2001) 44 German Ybk Intl L 498516, 504; Hannah Tonkin, Common Article I: A Minimum Yardstick for Regulating Private Military and Security Companies (2009) Leiden J Intl L 77999, 784 ff. See above, n 398. A. Dusquene, La Responsabilit solidaire des tats aux termes de larticle 1 des Conventions de Genve (1966) 15 Annales de Droit International Mdical 83; Fleck, International Accountability for Violations of the Ius in Bello, p. 182; Boisson de Chazournes and Condorelli, Common Article 1 Revisited, p. 69; Konstantin Obradovic, Que faire face aux violations du droit humanitaire quelques rexions sur le rle possible du CICR in C. Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (Geneva: ICRC, 1984), p. 487; Brehm, The Arms Trade and States Duty, 371; Levrat, Les Consquences de lengagement, p. 267; Kamen Sachariew, States Entitlement to Take Action to Enforce International Humanitarian Law (1989) 29 Intl Rev Red Cross 17795, 183. Hans-Peter Gasser, Ensuring Respect for the Geneva Conventions and Protocols: The Role of Third States and the United Nations in H. Fox and M. A. Meyer (eds.), Armed Conict and the New Law, vol. 2: Effecting Compliance (London: British Institute of International and Comparative Law, 1993), p. 25. See contra Kalshoven, From Tiny Seed to Ripening Fruit, p. 60; and Judge Koojimans in his Separate Opinion in Legal Consequences of the Construction of a Wall, paras. 4650. Nicaragua, at 114, para. 220. Legal Consequences of the Construction of a Wall, para. 158. See recently in line with this nding, the Montreux Document, Part I, point 18.

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Considered together, the two conclusions reached raise the following question: which state needs to exercise due diligence vis--vis which actors? In other words, is the obligation of due diligence regarding private actors related exclusively to states that are parties to the conict or does it extend beyond that? The response seems to be that all states share an obligation of due diligence for the respect of IHL and that states with a particular connection or inuence on private actors have obligations extending beyond the general obligation on all states.409 When it comes to PMSCs, the Montreux Document essentially encapsulates the varying obligations on different states depending on their relationship with PMSCs. As such, according to the Montreux Document, contracting states (which may or may not be parties to the conict)410 have the highest level of due diligence obligations with regard to PMSCs. Contracting states must ensure that PMSCs that they contract and their personnel are aware of their obligations and trained accordingly, in addition to the obligations set out for territorial states and home states of PMSCs.411 These duties are subject to the limitation of what is within their power to do. In comparison, territorial and home states of PMSCs are under an obligation to disseminate, as widely as possible, the text of the Geneva Conventions and other relevant norms of international humanitarian law among PMSCs and their personnel.412 In addition, other obligations owing from the obligation to ensure respect are specially tailored to the situation of PMSCs. As such, contracting, territorial and home states have an obligation, within their power to not encourage or assist in, and take appropriate measures to prevent, any violations of international humanitarian law by personnel of PMSCs and to take measures to suppress violations of international humanitarian law committed by the personnel of PMSCs through appropriate means such as administrative or other regulatory measures as well as administrative, disciplinary or judicial sanctions, as appropriate.413 It is noteworthy that these states are required to take measures to prevent any violations and to suppress violations, which arguably goes beyond the requirement on states through the grave breaches

409

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411 413

Again, the general obligation for all states in regard to PMSCs is in Part I, point 18 of the Montreux Document. E.g. neutral states may contract PMSCs to guard their embassies in states in which a conict is occurring. 412 Montreux Document, Part I, point 3(a). Ibid., points 9(a) and 14(a). Ibid., points 3(b) and (c), 9(b) and (c) and 14(b) and (c).

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regime of the conventions to suppress serious violations of IHL.414 The wider ambit of the violations states must prevent and react to is commensurate with the variety of mechanisms (including administrative or other regulatory measures) designated as appropriate for this purpose. Louise Doswald-Beck has argued that adopting regulations regarding PMSCs may be a good way for states to meet their obligations of due diligence.415 Under Article 1 common to the Geneva Conventions, all states are obliged to take steps to ensure that subjects of IHL comply with that body of law when using PMSCs. They are also obliged to exert the inuence they have on PMSCs and their employees in order to ensure that they comply with the rules of international law when engaging in armed conict. States parties have to take measures to ensure that IHL is respected by PMSCs and their employees, no matter whether they are party to the armed conict in which the companies are involved. The more inuence they have, the more they will be expected to take concrete measures. While states not having any link with a PMSC can use diplomatic means to discharge their obligation to ensure the respect of IHL, states of incorporation of the PMSCs can regulate the activities of the PMSC regarding their clients, their employees and their general compliance with IHL and human rights. Contracting states and territorial states will likely have a higher degree of inuence over the PMSC and therefore have the obligation to ensure that it complies with IHL in concrete circumstances. All states are parties to the Geneva Conventions. Thus, all states potentially have an obligation of due diligence to prevent or at least condemn violations of IHL, including those committed by private persons such as PMSCs and their personnel. The duty to take concrete steps with respect to this obligation is, however, only triggered by any inuence a state has over the unlawful act or over those who commit it or are about to do so. There is no need to exercise control over territory or over the victim or the perpetrator of the unlawful act at the moment of the

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See esp. Art. 129 GC III and Art. 147 GC IV. It should be noted that states do have an obligation to take measures necessary for the suppression of all acts contrary to the provisions of the Convention other than the grave breaches: GCs I IV, Arts. 49, 50, 129, 147 respectively. Doswald-Beck, Private Military Companies, p. 134; CUDIH, Expert meeting on PMCs, p. 48. Note that these recommendations were made prior to the signing of the Montreux Document.

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commission.416 What matters is to be able to take measures which may ensure the respect of IHL, by non-state actors or state actors. In our view, a state may have inuence over a PMSC based on a contract with that company and/or based on the nationality of the PMSC. A contract provides the contracting state with specic powers regarding a company. Common Article 1 means that such powers must be used for the respect of IHL. When it comes to the nationality of the company and state inuence, we note that the Montreux Document seems to have endorsed this criterion.417 The attribution of nationality to a company creates a link between both entities and gives an inuence to national states over the company. This inuence can be used to full the duty to respect and ensure respect of IHL.

Obligations arising from the requirement to exercise due diligence

3.1 The duty to regulate and to possess an adequate administrative system to carry out ones international obligations: a duty common to all states Regulating the activities which are likely to affect human rights or which could lead to violations of IHL may be one of the best ways to foster the respect of rights and to prevent future violations. Indeed, in order to satisfy their duty of due diligence, states must possess adequate laws and an administrative system enabling them to implement their international obligations. Having a regulatory scheme with regard to PMSCs may help states demonstrate that they have in fact exercised due diligence relating to their activities. The question is whether there is a general legal obligation to regulate PMSCs owing from the duty to exercise due diligence. In the Velsquez Rodrguez case, the Inter-American Court of Human Rights afrmed that there
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417

This is why the defendant states in Bankovi tried to oppose the plaintiffs contention that the notion of jurisdiction in the ECHR does not require control over territory, declaring, [i]n the rst place, the Governments consider that the very text of Article 1 does not support this interpretation. Had the drafters wished for what is effectively a cause-and-effect type of responsibility, they could have adopted wording similar to that of Article 1 of the Geneva Conventions 1949. Bankovi, at para. 40. According to the Montreux Document, Home States are states of nationality of a PMSC, i.e. where the PMSC is registered or incorporated; if the state where the PMSC is incorporated is not the one where it has its principal place of management, then the state where the PMSC has its principal place of management is the Home State. See Montreux Document, Preface, point 9(e).

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is a duty on states to prevent the occurrence of human rights violations, including by persons whose actions could not be imputed to the state. The Court held that there is a duty on the parties to the convention:
to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention 418

The Court emphasized that the duty to prevent includes all those means of a legal, political, administrative and cultural nature that promote the safeguard of human rights.419 In terms of laws as a preventive measure, we recall that states are required to adopt domestic legislation necessary to carry out their international obligations. According to the arbitral tribunal in the Neer case, whether the insufciency [of diligence] proceeds from decient execution of an intelligent law or from the fact that the laws of the country do not empower the authorities to measure up to international standards is immaterial.420 The ECtHR has, in many instances, considered that in order to avoid violations of the European Convention and to allow the full enjoyment of rights, states have a duty to enact adequate norms.421 This includes legislating where there are no norms and/or changing or abrogating inadequate norms.422 In one case, the ECtHR held that a provision in English criminal law allowing for a defence that a violent act was merely reasonable chastisement in cases of assault on children did not satisfy the UKs obligations under the convention. In the Courts
418 419 420 421

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Velsquez Rodrguez, para. 166. Ibid., para. 175. Pisillo Mazzeschi, Due Diligence Rule, p. 35. LHF Neer and Pauline Neer (USA) v. United Mexican States (1926) 4 RIAA, at 62. See among others, Marckx v. Belgium (App. no. 6833/74) (1979) ECHR, Series A, no. 31, para. 31. The Court asserted that As envisaged by Article 8 (art. 8), respect for family life implies in particular, in the Courts view, the existence in domestic law of legal safeguards that render possible as from the moment of birth the childs integration in his family. In this connection, the state has a choice of various means, but a law that fails to satisfy this requirement violates paragraph 1 of Article 8. See also A v. UK (App. no. 25599/94) ECHR 1998-VI, para. 24 (A v. UK). In a case concerning Greece, the ECtHR found that Greece was in violation of Art. 2 ECHR because of its legislation relating to the use of force by police. For the Court, the legislation which dated from the German occupation during the Second World War was clearly inadequate and needed to be changed. Makaratzis v. Greece (App. no. 50385/99) (GC) ECHR 2004-XI, paras. 57, 613, 702.

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view, the law did not provide adequate protection to the applicant against treatment or punishment contrary to Article 3 even though the treatment in question was entirely by private individuals.423 The ECtHR has also ordered states to make far-reaching legal and administrative changes to their practices in order to remedy procedures that result in systematic violations.424 Although most of these cases (and certainly the latter) were related to conduct of state ofcials, it seems beyond doubt that human rights are equally violated if domestic legislation does not protect against violations by private persons such as PMSCs and their personnel. There is, admittedly, a big step between requiring a state to change a criminal law, which already applies to private individuals, and requiring a state to put in place an entire regulatory system for a private actor. Nevertheless, the existence of a web of legislation allowing for overall regulation of a private actor may be necessary to show that a state has exercised its due diligence to prevent rights violations by a given actor. International human rights monitoring bodies have called upon states to regulate domestic private security companies. Although these bodies may not make binding decisions, their views may be understood as reecting a persuasive interpretation of the rights they are empowered to assist states to implement. The UN Committee against Torture, for example, called upon the UK to review the policies favouring private policing with a view to properly regulating that activity.425 In response,

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A v. UK, para. 24. Indeed, the government accepted that that law failed to provide adequate protection to children and had to be amended. Committee against Torture, Third Periodic Reports of States Parties Due in 1998: United Kingdom of Great Britain and Northern Ireland, Consideration of Reports Submitted by States Parties under Article 19 of the Convention: Addendum, UN Doc. CAT/C/44/Add.1, 20 July 1998, paras. 69 and 98 (Third Periodic Reports: UK and Northern Ireland). In Broniowski v. Poland (App. no. 31443/96) (GC) ECHR 2004-V, the ECtHR held that [i]t is inherent in the Courts ndings that the violation of the applicants right guaranteed by Article 1 of Protocol no. 1 originated in a widespread problem which resulted from a malfunctioning of Polish legislation and administrative practice and which has affected and remains capable of affecting a large number of persons (para. 189). The Court stressed the fact that the above violation has originated in a systemic problem connected with the malfunctioning of domestic legislation and practice caused by the failure to set up an effective mechanism to implement the right to credit of Bug River claimants (para. 200) and held that Poland must act through appropriate legal measures and administrative practices, secure the implementation of the property right in question in accordance with the principles of protection of property rights under Article 1 of Protocol No. 1. Committee against Torture, Concluding Observations: United Kingdom of Great Britain and Northern Ireland, UN Doc. A/51/55, 9 July 1996, paras. 5865, esp. para. 65(h).

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the UK stated its intention to introduce statutory measures to regulate the private security industry in England and Wales to ensure that suitable individuals work within the industry.426 This response would appear to represent something less than an overall regulation of the industry, but it is a preventive measure. In addition, the UK pointed to the more comprehensive accountability and training measures it had in place with respect to private prison guards.427 In its annual report on human rights concerning Panama in 1991, the Inter-American Commission on Human Rights (IACHR) expressed its concern about the proliferation of private security agencies there (with personnel numbering more than the police, air force and sea force combined), among which less than half were registered with the authorities. The commission was particularly concerned by the number and type of weapons the private security companies possessed because, in its view, the situation could develop in ways that would lead to violations of the Convention and declared that the government should anticipate that potential and take the measures necessary to prevent it.428 In its annual report concerning Guatemala in 1996, the commission declared:
The Commission recommends that additional attention be dedicated to the proliferation of arms and private security forces or groups, to assure that adequate legislative, administrative and judicial measures are in place to control the number and use of rearms, and to monitor and control the actions of private security agents.429

More recently, human rights monitoring bodies have made recommendations to states regarding PMSCs operating extraterritorially. In its concluding observations regarding the United States, the HRC, expressing its concern about violations of Article 7 ICCPR by private contractors in detention facilities within the United States jurisdiction, declared that:
the State party should ensure that there are effective means to follow suit against abuses committed by agencies operating outside the military

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Committee against Torture, Third Periodic Reports: UK and Northern Ireland 1998, para. 69. Ibid., paras. 948. The UK has a law on private security companies operating domestically: UK, Private Security Industry Act, 2001. Inter-American Commission of Human Rights, Annual Report on the Human Rights Situation in Panama, 1990/1991, www.cidh.org/annualrep/91eng/chaat4e.htm. Inter-American Commission of Human Rights, Annual Reports on the Situation of Human Rights in Guatemala 1996, www.cidh.org/annualrep/96eng/chaat5b.htm, para. 71.

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structure and that appropriate sanctions be imposed on its personnel who used or approved the use of the now prohibited techniques.430

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The Committee was equally concerned that it had received no information to the fact that oversight systems of such agencies have been established to ensure compliance with article 7.431 These obligations (legislating, instituting oversight systems and instituting means to sanction abuses) exist in any state where PMSCs are registered or are carrying out their activities. If or when a PMSC commits a violation of human rights under the jurisdiction of a state, that state will need to demonstrate that it had in place adequate legislation regulating their activities. If it appears that these activities were not sufciently regulated to make sure that the states international obligations are respected, the state may be held responsible for violating international law. Again, we reiterate that the Montreux Document afrms the same obligation in respect of IHL: it sets down that contracting, territorial and home states must take measures [within their power] to suppress violations of international humanitarian law committed by the personnel of PMSCs through appropriate means, such as military regulations, administrative orders and other regulatory measures as well as administrative, disciplinary or judicial sanctions, as appropriate.432 The duty to regulate arising from human rights and humanitarian law obliges states to take into account all the elds of PMSC activity. Only adequate legislation can discharge the state of its international responsibility. State practice in regulating PMSCs is varied, such that Louise Doswald-Beck argues that State practice regarding the application of [the obligation to ensure respect in Article 1 common to the Geneva Conventions] thus far does not include a lack of regulation or training amounting to a violation of this norm by such a state.433 In terms of practice, we note that in 2009 the government of the UK, following a public consultation process, decided not to regulate PMSCs but to support a code of conduct and use monitoring and its status as a key buyer to inuence the industry.434 In 2005, the Swiss government recommended
430

431 433 434

HRC, Concluding Observations, US 2006, para. 13. In its discussion related to the recommendation, the Committee referred to agencies as including intelligence agencies and private contractors. 432 Ibid. Montreux Document, Part I, points 3(c), 9(c) and 14(c). Doswald-Beck, Private Military Companies, p. 134. See UK Foreign and Commonwealth Ofce, Consultation Document, Consultation on Promoting High Standards of Conduct by Private Military and Security Companies (PMSCs) Internationally (24 April 2009). See also Hansard, HC vol 502 (cols. 137 WS 138WS) (Written Ministerial Statement of David Miliband) (16 December 2009).

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to the Swiss federal states, the Cantons, to legislate when they did not have a law regarding PMSCs or if that law was insufcient to properly cover their activities. The government also stressed that the Cantons should harmonize their legislation, in light of the rapid development of the increase in the phenomenon of private security.435 In 2011, after a major international PMSC established its headquarters in Switzerland, the federal government introduced draft legislation to regulate PMSCs operating from Switzerland.436 While many states have laws on military exports and on domestic private security providers, few have specic regulatory schemes covering PMSCs.437 All states whether they are states employing PMSCs, states of incorporation of PMSCs or parties to an armed conict or not bear the duty of regulation and of possessing a domestic legal regime that protects the rights guaranteed by IHL and human rights.438 States should criminalize serious violations of IHL and IHRL in their domestic law, whether such violations are committed by contractors or members of their armed forces.

3.2 The obligation to intervene when there is information that a violation of IHL or human rights is likely to occur One aspect of the obligation of due diligence is related to the steps states have to take in order to prevent concrete violations of IHL or human rights from occurring. This obligation is contingent on the capacity to prevent or avoid the occurrence of the violation. The ICJ has explained the requirements to be met in order to consider a state responsible for violating its international obligations through its failure to prevent a
See also the recommendation/conclusion of the HC Foreign Affairs Committee, Chapter 5: Oversight of Private Military and Security Companies and Contractors in Seventh Report, Human Rights Annual Report 2008 (July 2009), www.publications. parliament.uk/pa/cm200809/cmselect/cmfaff/557/55702.htm. The Foreign Affairs Committee expressed its regret that the government chose a self-regulation model, see para. 136. Rapport du Conseil fdral sur les entreprises de scurit et les entreprises militaires prives (donnant suite au postulat Sthelin 04.3267 du 1 juin 2004. Entreprises prives charges de tches de scurit) du 2 dcembre 2005, p. 686, online: www.admin.ch/ch/f/ ff/2006/631.pdf. Online: www.ejpd.admin.ch/content/dam/data/sicherheit/gesetzgebung/sicherheitsrmen/ vorentw-f.pdf. See the database compiled by the Geneva Centre for the Democratic Control of Armed Forces, www.privatesecurityregulation.net. See also the discussion in Ch. 5, section B below. See the Montreux Document, Part I, points 3(c) and 4 for the contracting states; Part I, points 9(c) and 10 for territorial states; Part I, points 14(c) and 15 for home states.

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violation by a non-state actor in the Diplomatic and Consular Staff in Tehran case. The Court declared:
the Iranian authorities: (a) were fully aware of their obligations under the conventions in force to take appropriate steps to protect the premises of the United States Embassy and its diplomatic and consular staff from any attack and from any infringement of their inviolability, and to ensure the security of such other persons as might be present on the said premises; (b) were fully aware, as a result of the appeals for help made by the United States Embassy, of the urgent need for action on their part; (c) had the means at their disposal to perform their obligations; (d) completely failed to comply with these obligations.439

With regard to the predictability of the violations, the state must have or should have known in light of particular circumstances that a violation of human rights or IHL was likely. The simple occurrence of a violation on its territory or under its jurisdiction is not sufcient to consider that the state knew or should have known.440 In Mastromatteo v. Italy, the ECtHR held that a due diligence obligation:
must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difculties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources.441

If states were to be obliged to know everything occurring in their territory, they would have to reduce the private sphere of individuals, encroaching upon their human rights. Therefore, as stated by the ECtHR in the Osman case:
it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identied individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.442

Knowledge on the part of the state can be deduced from evidence or can be established through constructive knowledge.443 It is sufcient that
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Tehran Hostages case, at 323, para. 68. Corfu Channel case, at 18. See above, n. 278. Mastromatteo v. Italy (App. no. 37703/97) (GC) ECHR 2002-VIII, para. 68. 443 Osman, para. 105. Corfu Channel case, at 18.

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a violation is predictable. The predictable character of a violation cannot be established through a general criterion, but must be ascertained in relation to concrete circumstances. For example, in the Youmans case where a US family was trapped in their house by a mob in a fury, the arbitral tribunal considered that the authorities knew that the family was at risk and that urgent action was needed to save it.444 From this case law, we may conclude that when private persons rights are at risk because of PMSCs or their employees, states have to exercise a degree of due diligence in order to prevent the occurrence of a violation, especially when the threat refers directly to an individual.445 The more information the state has related to the likelihood of a violation of private rights, the more it will be obliged to intervene. When it comes to PMSCs, it is less likely that a particular individual will be known to be at risk, but repeated high levels of aggressive or abusive action in certain circumstances would mean that violations in such circumstances may be predictable and states should regulate accordingly. Above, we argued that states are obliged to have the necessary means (i.e. laws and administrative systems) to enable them to implement or respect their international legal obligations. To possess the required legal and administrative means to carry out their international obligations is not an obligation of means for states, but an obligation of result.446 A separate but related aspect of due diligence, as articulated in the passage quoted above, is that the state must make use of those means. Responsibility for lack of due diligence arises when the state fails to make use of its laws and apparatus to prevent and to punish violations of international law towards individuals. The state must be able to carry out its international obligations, no matter how it chooses to organize
444

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Youmans (USA v. Mexico) (1926) 4 RIAA, at 111. Therefore, the Court considered that Mexico did not discharge its due diligence obligation because only few soldiers were sent on the spot (and they joined the mob to kill the Youmans). Mahmut Kaya v. Turkey (App. no. 22535/93) ECHR 2000-III, para. 89. See also Kilic v. Turkey, where the Court considered that Kilic was in an immediate risk of violation of his rights because he worked for a newspaper which was subjected to threats and attacks in the south-east of Turkey. The Court also took into account the fact that Kilic had formally requested protection. Kilic v. Turkey (App. no. 22492/93) ECHR 2000-III, para. 65. See e.g. Mastromatteo, where the ECtHR considered that [t]he states obligation extends beyond its primary duty to secure the right to life by putting in place effective criminallaw provisions to deter the commission of offences against the person backed up by lawenforcement machinery for the prevention, suppression and punishment of breaches of such provisions (para. 67); Pisillo Mazzeschi, Due Diligence Rule, p. 23.

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its domestic systems; indeed, that choice is left to its discretion by international law.447 This is why in the Alabama case the tribunal considered that the UK could not invoke the lack of domestic legal means to explain its lack of due diligence.448 In addition, if a state possesses the necessary means, what matters is whether in the concrete circumstances it has made sufcient use of them in order to respect its international obligations.

3.3 The obligation to investigate allegations and repress violations When a violation of IHL or IHRL occurs which a state could not reasonably be expected to prevent, the state can still be held responsible for a lack of due diligence if it fails to take the measures available to investigate the incident or crime and sanction the person responsible. This obligation will mainly concern the territorial state, or, for international crimes, applies to all states that have a basis of jurisdiction. In the Massey case, the arbitral tribunal considered that While a state is not ordinarily responsible for injuries done by private individuals to other private individuals in its territory, it is the duty of the state to diligently prosecute and properly punish such offenders, and for its refusal to do so it may be held answerable in pecuniary damages.449 Territorial states where PMSCs and their employees violate IHL and IHRL are therefore obliged to take all available measures to investigate allegations of violations of private rights and to punish those responsible. In addition to the territorial state, any other state which has a basis of jurisdiction under international law has the obligation to punish authors of grave breaches of the Geneva Conventions and certain other international crimes. Accordingly, if a state is obliged to investigate diligently, its responsibility is not only engaged for the failure to arrest and to punish the offender, but also for the manner in which it investigates the offence. Human rights treaty monitoring bodies have also voiced their concerns when allegations of human rights violations by private security guards were not diligently pursued and punished. For instance, in its Concluding Observations concerning Lesotho, the HRC stated its disapproval that no action had been taken to prosecute law enforcement ofcers and members of the private security agency responsible for killings in a village and
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G. Abi-Saab, Cours gnral de droit international public (1987-VII) 207 Recueil des Cours de lAcadmie de Droit International 77. Moore (ed.), Decision and Award, Alabama Claims Arbitration, p. 656. Gertrude Parker Massey (USA) v. United Mexican States (1927) 4 RIAA, at 159.

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recommended that Lesotho take the necessary action against those responsible.450 On the other hand, the IACHR has expressed approval when private security guards were prosecuted and punished for the human rights violations they had committed.451 In view of this convergence of international case law and of the views of the human rights monitoring bodies, it may come as a surprise that, in practice, relatively few violations of human rights and humanitarian law have been investigated and pursued in relation to the activities of PMSCs. One contractor involved in the Nisoor square shootings in Baghdad in 2007 pleaded guilty but the US justice system has run into a number of hurdles in its attempts to prosecute the other ve contractors implicated.452 In another case, the US Department of Justice decided, following a four-year investigation, not to indict a contractor who had shot and killed the bodyguard of the Iraqi vice president in 2006.453 Another trial of a high-prole killing of civilians by contractors in Afghanistan ended in a mistrial; after a new trial, they were convicted of manslaughter.454 In a different case, personnel from another PMSC were detained in Fallujah (Iraq) by US marines for allegedly shooting indiscriminately at civilians.455 While these cases involve prosecutions that have been largely unsuccessful, other cases are not prosecuted at all. For example, it has been alleged that private contractors of DynCorp involved in sex-trafcking in the Balkans have not been adequately prosecuted and that the only sanction they received was to be sent back to their home countries.456 Private contractors involved in the mistreatment and torture of prisoners in
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Concluding Observations of the HRC, Lesotho, UN Doc. CCPR/C/79/Add.106 (1999), para. 19. Inter-American Commission of Human Rights, Report on Guatemala, 1996, online: www.cidh.org/annualrep/96eng/chaat5b.htm, para. 54. For an overview, see Human Rights First, State of Affairs: Three Years after Nisoor Square (14 September 2010); see also J. Risen, Efforts to Prosecute Blackwater Are Collapsing, New York Times, 21 October 2010, p. A1 (Prosecute Blackwater). The case has recently been reopened. M. Carter, Ex-Blackwater Agent Andrew Moonen wont Face Federal Indictment, Seattle Times, 18 October 2010, http://seattletimes.nwsource.com/html/localnews/ 2013196099_moonen19m.html. Risen, Prosecute Blackwater. J. Risen, Two Former Blackwater Guards Are Charged With Murder in an Afghan Shooting, New York Times, 8 January 2010, p. A10; and Risen, Prosecute Blackwater. They were sentenced to thirty and twenty-seven months, respectively. Army Chief Notes Problematic Potential of Armed Contractors on the Battleeld, Defense Daily International 6 (35) (2005) 1. Singer, Corporate Warriors, p. 222. See also M. Maffai, Accountability for Private Military and Security Employees that Engage in Sex Trafcking and Related Abuses

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Abu Ghraib prison in Iraq also seem to have escaped proper punishment for their role. This response (or lack thereof) contravenes states IHL and human rights obligations. The HRC considered that this was the case concerning the United States in 2006. Noting with concern:
shortcomings concerning the independence, impartiality and effectiveness of investigations into allegations of torture and cruel, inhuman or degrading treatment or punishment inicted by United States military and non-military personnel or contract employees, in detention facilities in Guantanamo Bay, Afghanistan, Iraq, and other overseas locations, and to alleged cases of suspicious death in custody in any of these locations

the HRC reiterated that:


The state party should conduct prompt and independent investigations into all allegations concerning suspicious deaths, torture or cruel, inhuman or degrading treatment or punishment inicted by its personnel (including commanders) as well as contract employees, in detention facilities in Guantanamo Bay, Afghanistan, Iraq and other overseas locations. The state party should ensure that those responsible are prosecuted and punished in accordance with the gravity of the crime.457

In its report pursuant to the Convention against Torture, the United States also declared unequivocally that:
To the extent allegations of misconduct have been levied against private contractors, the U.S. Department of Justice has conducted or initiated investigations. For example, following the reports at Abu Ghraib, the Department of Justice received referrals from Military Investigators regarding contract employees and their potential involvement in the abuses. DOJ subsequently opened an investigation.458

So far, there has been little outcome of these investigations. This overview shows that due diligence obligations can be an important tool in ensuring the respect and protection of IHL and human rights. They require states to take preventive measures ranging from the regulation of the activity of PMSCs and to intervene when they have knowledge of a concrete violation which is likely to occur. When the violation has already
while under Contract with the United States Overseas (2009) 26 Wisconsin Intl LJ 1095139. HRC, Concluding Observations, US 2006, para. 14. Consideration of Reports Submitted by States Parties under Article 19 of the Convention, United States, Second Periodic Reports of States Parties due in 1999 Addendum, United States, CAT/C/48/Add.3, 29 June 2005, p. 74.

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occurred, states are obliged to take measures to investigate and punish those responsible for those violations.459

4 Implications for contracting states of the duty to ensure respect for IHL and IHRL regarding PMSCs 4.1 States remain bound by their international obligations when they use PMSCs If states could escape international responsibility by using private persons or entities to carry out their activities, it would be easy to render international law ineffective. This is why international tribunals and treaty monitoring bodies unanimously hold that when states delegate their activities to private persons, states nevertheless remain responsible. For example, in Costello-Roberts v. UK, the ECtHR declared that the state cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals.460 Specically with regard to domestic private security companies, the UN HRC considers that the contracting out to the private commercial sector of core state activities which involve the use of force and the detention of persons does not absolve a state party of its obligations under the Covenant, notably under articles 7 and 10.461 The practical effect of the impossibility for states to escape their international obligations simply by delegating is not limited to the fact that, as discussed above, most often such delegated conduct remains attributable to the state. Beyond that, even if the delegated conduct cannot be attributed to the state, a due diligence obligation has been clearly explained in the context of the delegation of states activities to international organizations. The ECtHR considered that states parties

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The difculties of prosecuting contractors for acts occurring in combat zones overseas are detailed in numerous law review articles. See e.g. K. J. Chapman, The Untouchables: Private Military Contractors Criminal Accountability under the UCMJ (2010) 63 Vanderbilt L Rev 104780. Costello-Roberts v. UK (App. no. 13134/87) (Judgment) (1993) Series A, no. 247-C, para. 27. See also Van der Mussele v. Belgium (App. no. 8919/80) (1983) Series A, no. 70, at 1415, paras. 2830. Carlos Cabal and Marco Pasini Bertran v. Australia (Communication 1020/2001), Views of the HRC under Optional Protocol to the ICCPR, 19 September 2003, para. 7.2. See also concerning the case law of the HRC, B.d.B. v. The Netherlands, Case no. 273/88, Decision of 30 March 1989; and Lindgren and ors v. Sweden, Case no. 298299/88, views adopted on 9 November 1990.

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must secure the respect of the rights guaranteed by the European Convention in the sphere of an international organization when they confer powers on that organization.462 The Montreux Document is a testament to the fact that this rule applies also in IHL: it afrms that Contracting states retain their obligations under international humanitarian law, even if they contract PMSCs to perform certain activities.463

4.2 States must ensure an equivalent protection of rights when activities are delegated to PMSCs If states cannot escape their international obligations simply by delegating tasks to private entities, the logical consequence is that when they do delegate, they must ensure that individuals enjoy the same level of protection of their rights as they would have if the activities in question were carried out by state organs. The ECtHR, in the context of a state delegating to an international organization the power to create binding legal obligations, dened an equivalent level of protection as existing where the organization itself is considered to protect both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides.464 According to the Court, states may delegate decision-making or other powers to an international organization only if they can ensure that in its activities the organization will respect the rights guaranteed by the European Convention on Human Rights both substantially and concerning procedural guarantees. It is not entirely clear whether the jurisdiction of the ECtHR is limited to situations where both the international organization and the complainant were both within the territorial jurisdiction of the respondent state.465 This is a matter of jurisdiction, not responsibility, however. The activities of international organizations established by states parties to the European Convention on Human Rights will not fall under Article 1 ECHR if the victims are not under the jurisdiction of a state party. This limitation affects only the ability of individuals to lodge complaints before the ECtHR and cannot be construed as
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Waite and Kennedy v. Germany (App. no. 26083/94) ECHR 1999-I, para. 67 (Waite and Kennedy); Matthews v. UK (App. no. 24833/94) (GC) (Merits) ECHR 1999-I, para. 32. Montreux Document, Part I, Principle 1. Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland (App. no. 45036/ 98) (GC) ECHR 2005-VI, para. 154. See also Waite and Kennedy. See however Boivin v. 34 states of the Council of Europe (App. no. 73250/01) ECHR 9 September 2008.

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meaning that the responsibility of states does not exist in relation to the activities of the organizations.466 States can be held responsible for the activities of international organizations to which they delegate functions and therefore must ensure that human rights are respected by those organizations. The logic used by the Court in relation to the delegation of functions to international organizations is the same as the logic that sustains the duty for states to ensure the respect of human rights and humanitarian law when they delegate activities to PMSCs. There is an important distinction, in that international organizations benet from international immunities, while private companies may be held accountable before domestic justice systems. However, states cannot escape their international obligations simply by delegating activities related to the conduct of war; furthermore, they have to ensure that the rights of private individuals are not signicantly affected by such delegation. This concerns both substantive rights as well as the procedural means by which rights must be implemented to give them any concrete effect. In terms of substantive guarantees, the HRC, having called on the United States to modify its Army Field Manual to make the techniques that are permitted by it compatible with the common understanding of Article 7 ICCPR, highlighted the fact that the state party should also ensure that the current interrogation techniques or any revised techniques are binding on all agencies of the United States Government and any others [arguably PMSCs] acting on its behalf .467 The implications are clear. When delegating functions to PMSCs, states are obliged to ensure that the guarantees offered by human rights and IHL are opposable to them and to make it possible for private persons to activate procedural mechanisms to give full effect to those rights. A contract governs the relationship between PMSCs and states and, as such, is the principal instrument determining the rights and obligations of the parties. The contract can therefore specify norms and structure the contractual relationship in ways that spur contractors to implement those norms.468 The contract is an important means to create direct legal obligations regarding the respect of IHL and humanitarian law for PMSCs, and, in addition, an important means to ensure a mechanism of
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Andrew Clapham, Human Rights Obligations of Non-state Actors (Oxford University Press, 2006), p. 187. HRC, Concluding Observations, US 2006, para. 13. Emphasis added. L. Dickinson, Public Law Values in a Privatized World (2006) 31 Yale J Intl L 383426, 401.

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sanction for these obligations.469 Therefore, at the normative level, contracts concluded with PMSCs must recognize the application of IHL and human rights norms to the activities of PMSCs and their personnel. The rst step to achieve this purpose is to mention specically in the contract between the state and the PMSC that IHL and human rights are applicable to their activities.470 Laura Dickinson analysed sixty publicly available contracts in Iraq and observed that none of them contained specic provisions requiring the contractors to obey human rights or humanitarian law.471 The contract between Papua New Guinea and Sandline International provided that at no time will Sandline personnel enter the sovereign territory of another nation nor will they breach the laws and rules of engagement relating to armed conict.472 As laudable as that provision may be, it is probably too vague to give employees concrete direction. Michael Cottier and Laura Dickinson have suggested that contracts could stipulate that private contractors must abide by relevant human rights and humanitarian law rules applicable to governmental actors.473 Dickinson also provides examples of ways in which contracts should be tailored especially to ensure the respect of norms most closely related to (and likely to be affected by) the party carrying out the contract.474
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M. Cottier, Elements for Contracting and Regulating Private Security and Military Companies (2006) 88 Intl Rev Red Cross 63763, 638. For Cottier, Contracts are a rst and most direct way for any client to require the private contractor and their employees to respect certain standards and avoid undesired external effects. L. Dickinson, Contract as a Tool for Regulating Private Military Companies in S. Chesterman and C. Lehnardt (eds.), From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford University Press, 2007), p. 218, Contracts could be drafted to explicitly extend relevant norms of public international law to private contractors, provide for enhanced oversight and enforcement, and include more specic terms such as carefully drafted training and accreditation requirements. This is set out as a good practice for contracting states in the Montreux Document, Part II, point 14. In doctrine see, Dickinson, Regulating Private Military Companies, pp. 2201; Cottier, Elements for Contracting and Regulating PMSCs, p. 642. Dickinson, Public Law Values, pp. 4034. http://coombs.anu.edu.au/SpecialProj/PNG/htmls/Sandline.html. Emphasis added. Cottier, Elements for Contracting and Regulating PMSCs, p. 642; Dickinson, Regulating Private Military Companies, p. 221. Dickinson, Regulating Private Military Companies, p. 231: Contractual training requirements, could, for example, be moulded to suit the activities of the particular in question. Thus, a government contract with a company such as Kellog, Brown & Root that provides meals to troops might require employees to learn the limits of excessive force under international law, but would focus primarily on defensive use of force.

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In our view, that approach would come closer to fullling the due diligence obligations than simply listing relevant IHL or human rights norms to be respected in a contract. Afrming the bindingness of the norms is relevant and important, as Cottier argues, but showing explicitly and concretely how to respect them may demonstrate an even greater diligence (or vigilance) on the part of the state. The good practices set out in the Montreux Document reect some of the most effective ways for states to satisfy their due diligence obligations. Not only do they indicate that states should include contractual clauses and performance requirements that ensure respect for relevant national law, IHL and IHRL by the PMSC and by any subcontractors, they make clear that some factors beyond training and subjection to law may affect compliance with and respect for the law.475 Clarity in terms of the laws, regulations and rules within which a PMSC operates will also contribute to compliance with IHL. A clear framework may be provided in the contract or in other rules applicable to the PMSC. One expert has observed that another means by which a hiring state can comply with its Article 1 [of the GCs] obligation is by ensuring that members of the PMC operate under clear ROE and standard operating procedures which reect their obligation under IHL.476 In this vein, the UN HRC in its 2006 report concerning the United States stressed the need for the United States to provide clear guidance to its personnel (commanders) and contract employees.477 A 2005 US DoD instruction provides that contractors shall abide by applicable laws, regulations, DoD policy, and international agreements;478 presumably, the obligation to abide by such instructions is included in the contract. Concerning procedural guarantees, contracting states must ensure that the activities of PMSCs and their employees are subject to either their

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476 477 478

A contract such as the CACI agreement providing military interrogators could require much more extensive training, homing in on the limits of proactive interrogation techniques. Montreux Document, Part II, point 14. Of course, we are aware that the drafters of the document studiously avoided any language that would characterize the good practices as required even avoiding the term due diligence but that does not undermine our conclusion. See J. Cockayne, Regulating Private Military and Security Companies: The Content, Negotiation, Weaknesses and Promise of the Montreux Document (2008) 13 J Conict & Security L 401, 421. CUDIH, Expert Meeting on PMCs, p. 41. See HRC, Concluding Observations, US 2006, para. 14. DoD Instruction 3020.41, point 6.1.

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own jurisdiction or to that of another state that is able and willing to prosecute violations such that private persons who suffer damages from the activities of PMSCs may receive fair compensation. On this point, the HRC, concerning the abuse or torture and inhumane and degrading treatment by US agents and private contractors, expressed the wish to be informed about the measures taken by the state party to ensure the respect of the right to reparation for the victims.479 Access to procedural guarantees (i.e. courts) may often be affected by immunities that are granted to PMSCs in agreements concluded between territorial states and contracting states. In this regard, the Montreux Document recommends as a good practice that both contracting and territorial states should consider the impact of such agreements on jurisdiction and to address it in order to ensure accountability of PMSCs.480 In our view, it is difcult to imagine how states can meet their due diligence obligations without implementing this good practice. Finally, we note that a contract does not create jurisdiction, but it can designate the applicable law, and if that law allows for third parties to make claims, then that could be a means through which private persons could introduce civil claims against PMSCs based on the breach of IHL or human rights guaranteed in the contract.481

4.3 The duty to contract with PMSCs that respect IHL and IHRL The selection of a PMSC for a contract is a moment when the state can foster the respect for IHL and IHRL. Contracting states must make a point to avoid contracting PMSCs that have a past record of violating human rights and humanitarian law. The reason is obvious: if a PMSC has in the past been involved in violations of IHL or human rights which have not been properly dealt with, it may be more likely to reproduce the same conduct under a new contract. A diligent state should therefore avoid creating circumstances which may put the respect of IHL and IHRL at risk.
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HRC, Concluding Observations, US 2006, para. 14. See also, Concluding Observations of the HRC, United Kingdom of Great Britain and Northern Ireland, UN Doc. CCPR/C/ GBR/CO/6, 30 June 2008, para. 14. Montreux Document, Part II, points 22 (contracting states) and 51 (territorial states). L. Dickinson also points out that contracts can deem certain persons to be third party beneciaries, giving rise to an ability to make private law claims against the companies. See Dickinson, Regulating Private Military Companies, p. 224. See also Cottier, Elements for Contracting and Regulating PMSCs, p. 644.

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This does not mean that the simple fact of a violation of IHL or IHRL by a PMSC (or its employees) is sufcient to prevent/prohibit states to enter into any contractual relationship with that company. Rather, the contracting state must look into the manner in which the PMSC has dealt with past violations of IHL or IHRL by its employees. Key considerations include whether the PMSC has removed wrongdoers from its personnel, whether it has taken measures to sanction them (through contractual sanctions) and/or to compensate the persons whose rights have been affected by the unlawful act, whether the company has a human rights and humanitarian law policy, and, nally, how incentives are implemented, especially regarding the selection and training of personnel. What matters is to ensure that many factors indicate that the company will effectively respect IHL and human rights and that any violations will be exceptional and properly dealt with. Many practical consequences ow from the duty not to contract with companies whose past conduct regarding IHL and human rights is decient. Companies bidding on contracts have to prove their past record of respecting IHL and human rights and provide all data which permits the state to evaluate with accuracy the persons and the companies it is employing. The information related to the past services of the companies and the description of the manner the company respected IHL and human rights in its past activities are essential. Therefore, the call for tenders should make clear that this information is compulsory for competing. In addition, the selection process of companies must not be based only on price but must take into account all the other aspects, such as the completeness of information regarding the company and its employees and the record of respect for human rights and humanitarian law. 482 According to the Montreux Document, during the selection process, contracting states should take into account that the PMSC has:
no reliably attested record of involvement in serious crime (including organised crime, violent crime, sexual offences, violations of international humanitarian law, bribery and corruption) and, insofar as the PMSC or its personnel had engaged in past unlawful conduct, has appropriately remedied such conduct, including by effectively cooperating with ofcial authorities, taking disciplinary measures against those involved, and, where appropriate and consistent with ndings of wrongdoing, providing individuals injured by their conduct with appropriate reparation.483

482

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Cottier, Elements for Contracting and Regulating PMSCs, pp. 6412. Montreux Document, Part II, point 5. Montreux Document, Part II, point 6.

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The Sarajevo Client Guidelines for the Procurement of Private Security Companies484 seem to provide for a lower threshold to disqualify PMSCs from competing for a contract. They include among the minimum criteria which should be used to reject substandard or inappropriate bidders outright, proven breaches of international humanitarian and human rights law.485 Indeed, if such measures do not exist, it cannot be legitimately contended that the state had taken all the measures available if later the company and its employees are found to be reproducing their past conduct of violations of IHL. In this regard, one can imagine the establishment of a common database, which could be established either by states or by companies themselves, accessible to all interested potential employers of PMSCs, which may provide relevant information regarding PMSCs, their activities and their employees.486

4.4 Contracting states shall ensure that PMSC personnel know their duties under IHL and human rights and are trained accordingly States using PMSC employees must ensure that they are properly trained to accomplish the task with which they are entrusted. Otherwise, states will be deemed not to have taken all feasible measures to prevent harm to be caused to private persons. This obligation is well illustrated by the McCann case from the ECtHR. McCann v. UK dealt with a situation in which British soldiers carried out an antiterrorist operation in Gibraltar, using lethal force against persons who in fact posed no immediate threat. The UK had withheld
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The Sarajevo Client Guidelines were developed by a diverse group of client organizations and private security providers from across Bosnia and Herzegovina in 2006 to enhance the conduct and regulation of the industry across South Eastern Europe. For the drafters of the guidelines, By complying with the Guidelines in full, clients will avoid many of the risks associated with employing low-cost providers, which can include poor service delivery and the misuse of force. South Eastern and Eastern Europe Clearinghouse for the Control of Small Arms and Light Weapons (SEESAC), The Sarajevo Client Guidelines for the Procurement of Private Security Companies, March 30, 2007, pp. 12. SEESAC, Sarajevo Client Guidelines, p. 5. The Sarajevo Client Guidelines do not specify that a mechanism will be put into place, but suggest that During the period of the contract, when it is appropriate and lawful to do so, clients should facilitate the exchange of information about unlawful activity and abuses committed by private security providers. SEESAC, Sarajevo Client Guidelines, p. 8. According to s. 872 of the Duncan Hunter Memorial National Defense Authorization Act of 2009 (Public Law 110417) (October 2008), the US government was required to develop and maintain a database on contractor performance and misconduct. This database exists and may be made public.

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detailed information regarding the training of the soldiers (on security grounds) at the inquest. In its adjudication of the matter, the ECtHR lamented that fact and looked for whether the soldiers involved in the operation had been trained or instructed to assess whether the use of rearms to wound [rather than to shoot to kill] their targets may have been warranted by the specic circumstances at the time.487 The upshot of this case is that vague training in the use of rearms is not sufcient to demonstrate due diligence has been exercised; rather, individuals empowered or mandated to use force, especially lethal force, must be properly trained to use the type of force appropriate to the circumstances and the task. This case raises an issue of particular importance for PMSCs. It is wellknown that PMSCs recruit from state armed forces and even from special forces units. As such, they may be composed of individuals who may have a tendency to approach the use of lethal force in a conict situation from the perspective of combatants in the conduct of hostilities.488 As we discuss in detail below, the rules on the use of force in the conduct of hostilities and in law enforcement operations is quite different. For example, combatants do not have to warn opposing combatants that they are about to attack, whereas police conducting law enforcement operations must use graduated force and give such warnings.489 The obligation on states to ensure that PMSC personnel are properly and adequately trained for the tasks for which they are contracted may thus entail deprogramming the reex to use military force and reprogramming PMSCs via intensive training in the rules for law enforcement and/or the limits of self-defence. The fact that this obligation to train extends to training of private contractors is illustrated by the fact that the HRC recommended that the United States should adopt all necessary measures to prevent the recurrence of suspicious deaths and cruel and inhuman treatment in custody, in particular by providing adequate training and clear guidance to its personnel (including commanders) and contract employees, about their respective obligations and responsibilities, in line with articles 7 and
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McCann v. UK (App. no. 18984/91) (GC) (1995) Series A, no. 324, para. 212. We note that armed forces are now trained on a sliding scale of contingency operations, which may attenuate this difference, but it nevertheless remains an issue. When combatants are conducting law enforcement operations they must also abide by the same rules on the use of force as apply to law enforcement ofcers (i.e. human rights rules rather than rules of conduct of hostilities). Our point here is to emphasize the difference in training that can be anticipated.

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10 of the Covenant.490 In its response, the United States reiterated that it provides education and training to its military personnel, including contractors, that are involved in the custody, interrogation or treatment of individuals in detention and specied that this includes extensive training on the law of war.491 This recognition that training needs to extend to private entities and persons such as PMSCs is important given the use of PMSCs in interrogation and detention. However, we observe that the recommendations of the HRC and the response of the United States are limited to training regarding detained persons and the prohibition of torture and degrading and inhuman treatment. Moreover, there appears to be an emphasis on training in IHL, when training in IHRL would appear equally pertinent. In addition, this recognition of the need for training with respect to Articles 7 and 10 ICCPR falls short of a full acknowledgement of the need to train PMSCs properly with regard to the use of force. Turning to humanitarian law, the starting point is the obligation in the Geneva Conventions, their Additional Protocols and under customary law to disseminate the treaties and encourage the instruction of the civilian population in the principles and rules of IHL.492 Since any civilian or military authority who may have specic responsibilities in implementing IHL during armed conict must have thorough knowledge of the Geneva Conventions and Protocol I, the ICRC Commentary indicates that [a] general knowledge of the Conventions and the Protocol is therefore always essential, while the depth and breadth of knowledge may vary, depending on the nature and extent of the responsibilities of the person concerned.493 Accordingly, if a PMSC or its employees assume the role of military or civilian authorities, states must make sure that they know the rules of IHL relevant for their activity. Again, although PMSC personnel are sometimes former soldiers who can be expected to be trained in IHL, a contracting state may not rely exclusively on this past training but should ensure that members of the PMSC are trained in IHL in such a way as to take into account the tasks they will be performing under the contract.494
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493 494

HRC, Concluding Observations, US 2006, para. 14. Emphasis added. Comments by the Government of the United States of America on the Concluding Observations of the HRC, 12 February 2008, UN Doc. CCPR/C/USA/CO/3/Rev.1/ Add.1, p. 7. Art. 47GC I; Art. 48 GC II; Art. 127 GC III; Art. 144 GC IV; Art. 83 AP I; Art. 19 AP II; Customary Study Rule 143. Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, p. 966. CUDIH, Expert Meeting on PMCs, p. 41.

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The Montreux Document reafrms the obligation for contracting states to ensure that PMSCs that they contract and their personnel are aware of their obligations and trained accordingly.495 This is indeed a welcome afrmation, as it goes beyond the encouragement of instruction of civilians in IHL to a requirement to train. The same logic also underpins Article 10 of the Convention against Torture, which stipulates that:
Each state Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public ofcials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. [Emphasis added.]

The reference made to other persons involved in custody, interrogations or treatment of individuals must be seen as including PMSC employees. However, in Abu Ghraib, according to the Army Inspector General, 35 percent of the contractors employed did not receive formal training in military interrogation techniques, policy or doctrine.496 Apparently, however, some older contractors had experience as military interrogators and were generally considered more effective than some of the junior enlisted personnel.497 The Schlesinger Report concluded that, for a variety of reasons, some contractors who committed abuse may honestly have believed the techniques were condoned.498 Demand is a major factor in the use of inadequately or untrained personnel: one former contractor stated rhetorically that PMSCs were so anxious to meet the demand for their services, they sent cooks and truck drivers to work as interrogators.499 Allowing this practice, if true, would conict with states obligations under human rights and humanitarian law.

495 496

497 499

Montreux Document, Part I, point 3(a). Final Report of the Independent Panel to Review DoD Operations, Chaired by James R. Schlesinger, August 2004, p. 69. 498 Ibid. Ibid., p. 68. Julian Borger, Iraq Conict: Cooks and Drivers Were Working as Interrogators: Witness: Private Contractor Lifts the Lid on Systematic Failures at Abu Ghraib Jail, The Guardian, 7 May 2004, Guardian Home Pages, p. 4. Cited in Nils Rosemann, The Privatization of Human Rights Violations: Business Impunity or Corporate Responsibility? The Case of Human Rights Abuses and Torture in Iraq (2005) 5 Non-state Actors & Intl L 77100, 81. See also the correction in The Guardians Corrections and Clarications column 14 May 2004, specically regarding the rhetorical nature of the cooks and drivers comment, www.guardian.co.uk/world/2004/may/07/iraq.usa. On the lack of training more generally, see also Singer, Corporate Warriors, p. 156.

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A consequence of the obligation to train persons in IHL and IHRL is that there needs to be a specic provision in the contract between PMSCs and contracting states that obliges PMSCs to train their employees adequately to respect IHL and IHRL.500 The US DoD Instruction on Contractors Authorized to Accompany the Armed Forces expressly states that prior to deployment all contractors must validate or complete any required training, and specically mentions the Geneva Conventions.501 While this is a fast-evolving area, practice in Iraq shows that in many cases contracts were silent on the existence of a particular obligation to the company to train its personnel according to international standards.502

The contracting state should ensure that persons likely to violate IHL will not be hired One of the means to prevent violations of IHL is to take care when recruiting members of armed forces not to enrol persons who are likely to be perpetrators of violations. According to the ICTY in the elebii case:
showing that a superior had some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates would be sufcient to prove that he had reason to know This information does not need to provide specic information about unlawful acts committed or about to be committed. For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge.503

4.5

In Kordi and erkez, the ICTY also considered that The level of training, or the character traits or habits of the subordinates, are referred

500

501 502

503

Dickinson, Regulating Private Military Companies, p. 222; Cottier, Elements for Contracting and Regulating PMSCs, p. 643. DoD Instruction 3020.41, point 6.2.7.1. Dickinson, Public Law Values, p. 405. Dickinson points by way of example to the contract between the US government and CACI International which was completely silent on whether interrogators will receive education in international humanitarian and human rights law. She also observes that the U.S. governments agreement with Chugach McKinley, Inc. which was contracted to screen and hire a broad range of military support personnel from doctors to special mission advisers says nothing about whether such personnel will receive training in applicable international law standards. Prosecutor v. Delali (elebii case) (Appeal Chamber Judgment) IT-9621 (20 February 2001), para. 238 (emphasis added).

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to by way of example as general factors which may put a superior on notice that subordinate crimes may be committed.504 Translated to a due diligence obligation for states with regard to PMSCs, this means that states hiring PMSCs must take care not to contract PMSCs they know or have reason to know are likely to be involved in violations of IHL. It has been alleged that the personnel of PMSCs has sometimes been recruited from regimes which are not respectful of human rights. Blackwater Security Consulting allegedly counted among its employees 60 Chilean ex-commandos who were trained under the Pinochet dictatorship.505 It has also been revealed that former apartheid security apparatus members or soldiers have been hired by EO.506 It is clear that the simple fact of being active under a dictatorship or an apartheid regime does not mean that under international law a person is forbidden to work for a PMSC as a security or a military agent. Nevertheless, it may raise red ags. The company and the states which employ such persons must ensure that they are not employing individuals whose personal records indicate a lack of respect of human rights and humanitarian law.

4.6 Contracting states must take measures to stop ongoing violations of human rights and humanitarian law States are obliged to take measures to stop violations of the Geneva Conventions and Additional Protocol I caused by an omission.507 Accordingly, if a PMSC hired by a state is considered to have a systematic or general pattern of violating IHL, the state is obliged to take measures to stop these violations. One means of doing so is to terminate the contract with the company. The obligation to remove alleged human rights violators from their roles when they are members of state forces may arise even before the individuals in question have been found responsible in disciplinary or criminal proceedings.508
504

505 506

507

508

Prosecutor v. Kordi and erkez (Trial Chamber Judgment) IT-9514/T-2 (26 February 2001), para. 437. Rosemann, Privatization of Human Rights Violations, p. 80. Singer, Corporate Warriors, pp. 1023. According to Rosemann and his sources, up to 150 former apartheid era security operatives worked for PMSCs in Iraq: Privatization of Human Rights Violations, p. 80. Art. 86(1) AP I (i.e. suppressing breaches caused by a failure to act when under a duty to do so). Organization of American States, Third Report on the Human Rights Situation in Colombia, Inter-American Commission on Human Rights, OEA/Ser.L/V/II.102,

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Concerning PMSCs, this obligation has two different consequences. Regarding the personnel of PMSCs who commit such violations, due to the absence of a direct link between the state and the employee of the PMSC, the obligations to stop the latter from violating IHL implies that the contract must allow the state to remove any employee who engages in violations of IHL and human rights.509 According to the Fay Report, the US DoDs contract with Titan Inc. to provide translators for interrogation at Abu Ghraib detention facility in Iraq included a clause that allowed the contracting ofcer to direct the contractor to remove translators from the theatre and the report species that this clause has been invoked on occasion of misconduct.510 Concerning the company itself, it is obvious that a single IHL violation by one employee is not in itself sufcient to require the state to rescind the contract, although nothing prohibits a state from including such a clause in the contract. As indicated above, the reaction to Abu Ghraib was to invoke clauses requiring the contractor to re the employees involved. The reaction of the United States to DynCorp implicated in sex-trafcking in Bosnia was to demand DynCorp to advise its employees that they would be red for such behaviour, but the contract with the company itself was not terminated.511 In Abu Ghraib, work under the existing contract with CACI was allowed to continue, whereas future contracts with the company were blocked.512 In our view, when violations of IHL and human rights norms are a consistent pattern of the company, due diligence obligations oblige the contracting state to terminate the contract. The same conclusion applies when the company does not take measures regarding its internal organization to stop such violations. The means of terminating the contract depends on the applicable domestic law (which should be interpreted in light of IHL and human rights) and on the contract (which the state has a due diligence obligation to formulate in a way allowing termination in such circumstances).

509 511

512

26 February 1999, Chapter 4, Recommendation 5, www.cidh.org/countryrep/colom99en/ chapter.4f.htm. 510 Montreux Document, Part II, point 20(a)(iv). Fay Report, p. 48. See US State Department Information Memorandum Subject: Trafcking in Women in Bosnia: Recent Events, 10 December 2001, p. 2: At our instruction, DynCorp has issued a stern message to our CIVPOL that involvement in, or failure to disclose others involvement in, such activities is grounds for immediate termination. Ellen McCarthy, CACI Contracts Blocked: Current Work in Iraq Can Continue, Washington Post, 26 May 2004, p. A18.

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That being said, circumstances in which PMSCs act may render an outright termination of the contract difcult, making governments reluctant to take such measures. Consequently, the threat of the termination of the contract is no longer credible and loses any dissuasive effect.513 In our view, states must not make themselves so dependent on a contractor that, in reality, they cannot actually use the contractual sanctions available to them.

4.7 Contracting states should appoint contracting ofcers to monitor the execution of the contracts As established above, the simple delegation of functions and prerogatives does not relieve a state of its obligations and responsibility under international law if the accompanying obligations are not respected. This implies that states, when they delegate activities to PMSCs, or when PMSCs are allowed to exercise activities under their subordination, should designate a person who will be on the spot to exercise control over the company and their personnel to ensure that they are carrying out their activities in conformity with the international obligations of the state.514 According to Laura Dickinson, this is a basic precondition for any effective contractual regime.515 As Dickinson further points out, persons designated for this role should be sufcient in number and competent, especially in IHL and human rights, to properly monitor the performance of the contract and should be vested with the requisite powers to exercise such control.516 It cannot be presumed that a contracting ofcer located thousands of kilometres from a conict zone will be able to provide the day-today monitoring of PMSCs. Indeed, the Montreux Document indicates as a good practice that government personnel be on site and vested with the capacity and authority to oversee proper execution of the contract.517 In reality, such oversight is proving extremely difcult.518

513 514 515 516 518

Dickinson, Public Law Values, p. 417. Cottier, Elements for Contracting and Regulating PMSCs, p. 644. Dickinson, Regulating Private Military Companies, pp. 2234. 517 Ibid., p. 224. Montreux Document, at Part II, point 21(b). US Senate Committee on Armed Services, Contracting in a Counterinsurgency. See also the documents of the US Commission on Wartime Contracting, www.wartimecontracting.gov/.

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Contracting ofcers should ensure that violations of IHL and IHRL are known and punished IHL requires states to punish violations of IHL and not to be complicit in them.519 This entails that states must ensure that IHL violations are not concealed from law enforcement agencies. Therefore, the contract must oblige the company to report violations of IHL and IHRL committed by its personnel to their employing state or the territorial state,520 without prejudice to the (private law) sanctions that the company can take against its employee under domestic law. This obligation to report is essential for all the steps that the state may ultimately take. Therefore, it should be emphasized in the contract and contractual sanctions for violations should be agreed upon. The contract could institute a system whereby persons who are victims of violations of their rights or who have witnessed unlawful acts, including personnel of the PMSC, may denounce them.521 With respect to PMSC employees, the contract must specically oblige employees to report violations of IHL they have witnessed and incidents in which they are involved, especially when they entail a use of force.522 Contracts should also protect whistle-blowers from any retaliation from their colleagues, the company and/or third parties.523 It is widely known that whistleblowers have been red by companies because of denouncing their fellow employees who violated IHL and human rights.524 Such conduct 4.8

519

520

Arts. 49, 50, 129, 146 respectively of the four Geneva Conventions, in addition to common Art. 1. Cottier, Elements for Contracting and Regulating PMSCs, p. 644. Cottier argues: the contract should spell out reporting obligations of the company, including periodical reports on contract performance to the contracting authorities; reports following particular incidents, such as the use of violence, changes in the employee pool or a possible, suspected or alleged violation of the law; reports upon request of the contracting authority; and reports to the local authorities in case of a violation of the applicable law. As discussed in Ch. 5, section E below on self-regulation, a number of stakeholders are currently working on developing an oversight mechanism for private security providers. See the detailed discussion and annexes regarding reporting in Iraq and Afghanistan in Human Rights First, Private Security Contractors at War. Dickinson, Regulating Private Military Companies, p. 224. E.g. DynCorp red whistleblowers related to sex-trafcking scandals in BosniaHerzegovina. See Singer, Corporate Warriors, p. 222; Maffai, Accountability for Private Military and Security Employees, pp. 1095139, n. 34. The story of Kathryn Bolkovac was made into a major motion picture. See K. Bolkovac, The Whistleblower (London: Palgrave McMillan, 2011).

521

522

523 524

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should be prohibited by the contract between the state and the PMSC. Arguably, such conduct is a sign that violations of IHL are tolerated by the company itself and, accordingly, should lead to the termination of the contract. Beyond criminal sanctions, the contract can incite the PMSC to respect IHL by imposing nancial losses on the company in case of violations of IHL and human rights, and for non-compliance with mechanisms included in the contract to ensure the respect of IHL.525 In other words, IHL and human rights become a contractual condition whose respect can entail sanctions of a contractual nature. For breaches which are not part of a consistent practice of the company (which in our view must lead to the termination of the contract between the parties), states can also set a number of complaints of violations which may serve as a benchmark to trigger the imposition of increasing nancial penalties on the company.526 According to the Sarajevo Client Guidelines, the state has to set performance indicators in the contract which will be tied to specic outcomes, such as nancial rewards or penalties for the contractor or the cessation of the contract. Among the potential performance indicators, the non-governmental document mentions violations of international humanitarian and human rights laws [and] violations of international or national laws governing the private security industry.527 The Montreux Document advises states to consider pricing and duration of a specic contract as a way to promote relevant international humanitarian law, and quoted as relevant mechanisms the establishment of securities or bonds for contractual performance, nancial rewards or penalties and incentives and opportunities to compete for additional contracts.528 It also recommends that contracting states provide for non-criminal accountability mechanisms that is, contractual sanctions commensurate to the degree of seriousness of the violation, such as immediate or graduated termination of the contract, nancial penalties and the removal from consideration for future contracts, possibly for a set period.529 The likelihood of contractual

525

526

527 528

Dickinson refers to graduated penalties that states have used to improve compliance and oversight in regard to privatization of other services on a domestic level. See Dickinson, Regulating Private Military Companies, p. 224. Montreux Document, Part II, point 20(c). On the idea of inserting benchmarks to evaluate private contractors services, see Dickinson, Public Law Values, p. 410; Dickinson, Regulating Private Military Companies, pp. 2223. SEESAC, Sarajevo Client Guidelines, p. 5. 529 Montreux Document, Part II, point 17. Ibid., point 20.

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sanctions may create an incentive for the companies themselves to respect IHL, which is a way for the state to discharge its preventive obligation of due diligence. In summary, due diligence obligations are an important tool for the protection of human rights and the respect of humanitarian law. In addition to the fact that international law may, in specic cases, impose obligations directly on PMSCs, international law also constrains their activities by imposing an obligation on states which have an inuence over them to take measures to ensure that they respect human rights and humanitarian law. Under international law, states must have an adequate internal structure to carry out their obligations regarding PMSCs; states must ensure that the PMSC personnel are trained and educated in IHL and IHRL; states must take care in selecting PMSCs with which they contract and which employees they use to carry out activities in situations of armed conict; states have to take special measures to prevent concrete violations of IHL they are aware are likely to be committed; and, nally, they must punish violations of IHL. These obligations entail concrete consequences regarding the drafting of contracts with PMSCs because it is the contract which will govern the future relationship between the PMSC and the state. Therefore, in addition to their commercial provisions, contracts with PMSCs must be drafted carefully to make clear that the respect of IHL and human rights is an essential clause of the contract, violations of which may entail alternatively or cumulatively nancial sanctions and the termination of the contract. It has been contended that the inclusion of IHL and human rights provisions in contracts will create many difculties, such as an increase in contract fees and resistance on the part of governments and private companies. Such arguments can be discussed on their own merits (which should not be presumed)530 but legally they are immaterial and cannot justify that a state violate its obligations under international law. These obligations require states to take the necessary measures to prevent and repress violations of IHL. Among these measures, the contract is an important tool.

530

See the acknowledgement of the existence of and refutation of these arguments in Dickinson, Regulating Private Military Companies, pp. 225 ff. The author observes that the lack of oversight over activities of PMSCs has created corruption which has a greater cost for states and that violations of human rights and humanitarian law can result in reputational losses and high compensation fees against the companies themselves in domestic adjudications.

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Implications for territorial states to ensure respect of IHL and human rights

Territorial states are the states on whose territory PMSCs operate. A territorial state can also be the contracting state, in which case the practical implications discussed below are without prejudice to those described above. For contracting states, the contract is a useful tool to control and direct the activities of private military companies and their employees, but it is important to recall that states on whose territory PMSCs are operating do not necessarily enter in contract with PMSCs, but they have the obvious tool of domestic legislation at their disposal.531 It seems obvious that PMSCs must abide by local, domestic law. Therefore, the conditions under which states allow PMSCs to be present and/or active in their territory are useful tools to ensure the respect of IHL and human rights, arguably leading to a requirement to regulate PMSCs. The 1991 report of the IACHR concerning Panama532 discussed above is relevant here, too. The commission considered that the proliferation of private security agencies and weapons along with them could lead to violations of the Inter-American Convention on Human Rights and called on the government to anticipate that possibility and to take measures to prevent IHRL violations by the companies.533 In addition, the commission referred to the fact that few companies were duly registered. One can deduce from this recommendation that when PMSCs are present in the territory of a state, that state should require them to be registered. Once the principle of the necessity of registration and of a licence to conduct activities is admitted, the conditions under which registration will be granted can be used to full the duty to ensure respect for IHL. First, it is important for the territorial state, especially, to expressly require that the authorized PMSCs and their personnel must abide by international human rights and humanitarian law in their activities.534 Secondly, registration should be conditional on proof that the company

531

532 533

534

E.g. PMSCs contracted by the US government on Afghan soil do not have a contract with the Afghan government. Cited in detail above, section E 3.1 and accompanying text. Inter-American Commission on Human Rights, Annual Report of the Inter-American Commission on Human Rights, Chapter 4, Situation of Human Rights in Several States, OEA/Ser.L/V/II.81, Doc. 6 Rev 1, 14 February 1992, www.cidh.org/annualrep/ 91eng/chap.4e.htm. Cottier, Elements for Contracting and Regulating PMSCs, p. 650.

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and its employees have a good record concerning IHL and IHRL, and it should be established that they have all been trained and are able to discharge the responsibilities they have under these norms.535 To declare that personnel must be willing to respect the law and all human rights and freedoms of all citizens of the country is not sufcient, as many of them may be willing but not able to respect that obligation if not properly trained. Moreover, to grant an authorization, territorial states should examine whether the internal structure of companies is sufcient to ensure that they will abide by IHL and human rights and propose appropriate modications if this is not the case.536 For the purposes of IHL, whether the company obliges its employees to receive adequate training in IHL and human rights and how it meets that obligation in practice will be relevant. Concerning the use of force, PMSCs should have clear rules of engagement in conformity with IHL and human rights with which its employees are familiar, as Cottier recommends.537 Having the means to conduct internal investigations of violations of IHL and IHRL by its own employees and to report them to contracting states or to the local authorities is also pertinent.538 As a condition for granting the authorization, territorial states must also require contractors to properly screen their employees and to remove any persons who are or have been involved in violations of IHL. In states mired in armed conict or with less developed administrative systems, records may be lacking or insufcient to glean useful information through a purely bureaucratic procedure. In such cases, extra effort would be necessary in order to satisfactorily vet potential employees. As territorial states are in a unique position to know what is necessary and feasible, they must take that into account in their regulatory schemes. Sometimes the exercise of due diligence means that states must refrain from enacting certain laws. For example, states may not take any measures providing for immunity for PMSCs unless they have taken steps to ensure that another state is willing and able to prosecute any alleged violations they commit.539

535 537

538

536 Montreux Document, Part II, point 35. Ibid., point 37. Cottier, Elements for Contracting and Regulating PMSCs, pp. 64950. In support of this notion, Cottier cites CPA Memorandum No 17, Section 9(4) and points out Section 8 of the Kurdish Regional Government Private Security Company Requirements lays out a number of conduct obligations of a licensed company in n. 45. 539 Ibid., p. 649. Montreux Document, Part II, point 51.

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Finally, the territorial state can impose bonds which may be forfeited in case of violation of IHL and human rights.540 For example the Coalition Provisional Authority in Iraq provided for the constitution of a bond of US$25,000 (which may increase according to the increase of the number of the employees of the company) which may be forfeited in case of any breach of Iraq or other applicable law by employees or companies.541 Andrew Clapham suggests the adoption of provisions or a registration requirement imposing higher sums for violations of human rights and humanitarian law.542

Implications for home states to ensure that human rights and humanitarian law are respected

Like territorial states, states of incorporation should regulate the PMSCs incorporated in their territories. Arguably, the recommendation of the IACHR in its 1991 annual report concerning Panama (discussed above) covers any state where PMSCs nd themselves territorial states where they carry out their activities and states where they are incorporated. State practice reveals that states often regulate the activities of companies incorporated in their territory, even if carried out extraterritorially.543 One should therefore not dismiss the possibility for the national state of a PMSC to regulate its activities, although it may be far from the scene of concrete violations of IHL. The Swiss Federal Council, in its 2005 report concerning PMSCs, considered that the international responsibility of Switzerland could be engaged for the activities of private military companies operating in conict zones, and therefore declared itself ready to examine the opportunity to institute a compulsory licence or registration concerning these PMSCs. The Federal Council emphasized especially the crucial interest in knowing the persons and businesses possibly active from their territory in crisis and conict areas and to be able to verify the conformity of their activities with national and public international law.544
540 541 542 543

544

Cottier, Elements for Contracting and Regulating PMSCs, p. 649. CPA Memorandum No 17, section 3, cited ibid., n. 43. Clapham, Human Rights Obligations of Non-state Actors, p. 307. See e.g. S. L. Seck, Home State Responsibility and Local Communities: The Case of Global Mining (2008) 11 Yale Human Rights and Development LJ 177206. Rapport du Conseil fdral sur les entreprises de scurit et les enterprises militaires prives (donnant suite au postulat Sthelin 04.3267 du 1er juin 2004. Entreprises prives charges de tches de scurit) 2 December 2005, pp. 6867, www.admin.ch/ch/f/ff/ 2006/631.pdf (authors translation).

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Interestingly enough, the Swiss Federal Council recognizes its power under international law to monitor the conformity of PMSCs located in its territory in the light of int