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
1

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1 10

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

351

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

662

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,
1

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
2

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
4

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

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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

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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

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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

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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

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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

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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

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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

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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

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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

xxxii

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

xxxv

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.

introduction

(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.

introduction

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.

introduction

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.

introduction
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).

introduction
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.

introduction

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

introduction

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

introduction

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.

24

the limits on the right to resort to pmsc s

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

52

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.

limits imposed by international law

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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.

26

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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

64

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.

limits imposed by international law

27

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.

28

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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.

limits imposed by international law

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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

74

75

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

78

79

80

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

83

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

91

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
98

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.

36

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.

limits imposed by international law

37

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.

38

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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.

limits imposed by international law

39

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.

40

the limits on the right to resort to pmsc s

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.

limits imposed by international law

41

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.

42

the limits on the right to resort to pmsc s

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.

limits imposed by international law

43

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.

limits imposed by international law

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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

153

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47

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

169

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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.

limits imposed by international law

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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

193

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).

230 231

232

233

234

235

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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.

243

244

245

246

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.
247

248

249 250

251

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.
252

253

254

255

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

256

257 258

259 261

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
263

264

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.

265

266

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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

269

270

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

277

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

289

290

291

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

301

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

307

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.
337

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
345

346

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

350

351

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

386

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.

416 418

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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

428

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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
437

438

439

440

441

442

443

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

444

445

446

447

448 449

450

451

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
452

453 454

455

456

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)).

457 458

459 460

461

462

463

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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
464

465

466

467

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

470

471

472

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.

473 474

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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

475

476 477

478 479

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

480

481 482

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
490

491 492

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.

495

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.

17

18

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

21

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.

47

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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

52

53

54

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.
63

64

65

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

67

68

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

69

70

(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

75

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

81

82

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

85

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

88

89

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

93

94

95

96

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

100

101

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

103 104

105

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

120

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

123

124

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

135

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.
136 137

138

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
151

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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

160

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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

164

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167

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
168

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170

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

171

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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:
176 177 179 180

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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.
185

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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

192 193

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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

196 197

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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

205

206 207

208

209

210

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:
211

212

213

214

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.

215

216 217

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

218 219

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

220

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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.

221

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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
224

225 226 227

228

229

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
230

231

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233

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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

258

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

213

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

273

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

304

305

306

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

317

318

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

323

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

231

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
334

335 336

337

338

339

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

342

343

344

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

347

348

349

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

352 353

354

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,
355

356

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

360

361

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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

362

363

364

365

366

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
368

369

370

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.

371

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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

375

376

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
382

383

384 385

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.

388 390

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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

400

401

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

406 407 408

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

410

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

414

415

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
416

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

422

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,

423

424

425

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

426

427

428

429

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.

435

436

437

438

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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
439 440 441 442

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

445

446

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
447

448 449

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
450

451

452

453

454

455

456

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.

457 458

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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

459

460

461

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
462

463 464

465

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
466

467 468

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
469

470

471 472 473

474

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

475

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.
479

480 481

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

483

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
484

485 486

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
487 488

489

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
490 491

492

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 international law. Soon after the PMSC Aegis moved its headquarters to Basel, the Federal Council proposed a draft law to regulate the industry.545 Michael Cottier outlines how the licensing schemes relevant for arms exports may serve as a point of reference for home state licensing frameworks for PMSC activities. As such, he highlights pertinent aspects of the UKs 2002 Green Paper on PMSCs, the non-binding EU Code of Conduct on Arms Exports and the draft framework convention on international arms transfers.546 Cottier shows that licences to export PMSC services could be granted in the same way as arms export licences, including respect for IHL and IHRL. In particular, Cottier notes that arms export codes require a risk assessment in terms of the respect of human rights in the country of destination and consideration of how the arms may be used.547 Indeed, what is valid for exports for military goods should equally be valid for military services.548 Home states being under a duty to ensure respect of IHL regarding companies incorporated in their territory, they should make operating licences, authorizations to accept contracts and renewal permits conditional on respect of IHL and IHRL by the PMSC.549 This requirement must be at least as compelling for military services as for military goods, as the services will be provided by the companies and their personnel themselves, while military goods are primarily used by receiving states. In addition to the imposition of the respect of human rights and humanitarian law as a condition for granting licences, states of incorporation of PMSCs must full their duty to disseminate IHL among PMSCs. Indeed, beyond the obligation to ensure that persons whom the state is responsible for are well-acquainted with IHL provisions which may be relevant for their activities, the Geneva Conventions impose a general obligation on states to disseminate their provisions as widely as possible among the civilian population. As for organs and entities carrying out

545

546 547 549

See the draft available for consultation, www.ejpd.admin.ch/content/dam/data/sicherheit/gesetzgebung/sicherheitsrmen/vorentw-f.pdf. Cottier, Elements for Contracting and Regulating PMSCs, pp. 65860. 548 Ibid. UK, Green Paper, p. 24, point 73. Montreux Document, Part II, point 60. See also on this point, Gillard, Business Goes to War, pp. 55960.

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activities on behalf of a state, the content of IHL that should be disseminated to them will depend on the relevance of their activities in times of armed conict, even if not on behalf of the territorial state in which they are located in times of peace. If we accept that regarding the normal civilian population which a priori does not have any special activity in times of armed conict the state can discharge its obligations by instructing them to respect some basic principles such as to treat the wounded, sick and shipwrecked humanely and to respect the distinctive emblem (red cross/red crescent),550 regarding certain categories of persons, the duty to disseminate can have a broader meaning. This may explain why Article 47 GC I and Article 48 GC II specically indicate the obligation to educate chaplains and medical personnel in IHL, in addition to the armed ghting forces. Under the conventions, medical personnel and chaplains are members of the armed forces without being combatants; therefore, their training could be anticipated to be very different from that of the rest of the military. The ICRC Commentary indicates that the special protection afforded to them by IHL means they ought to make a special point of scrupulously observing the corresponding duties which the Convention[s] impose on them.551 Since the action of medical personnel is integral to ensuring the protection of wounded and sick without discrimination etc., it is imperative that they understand their obligations and rights under IHL. The logic behind these provisions is that when the state knows that a category of actors is likely to be involved in situations of armed conict, it has to take special measures to ensure that they are knowledgeable in IHL. Given the widespread use of PMSCs nowadays, in addition to individual criminal responsibility including for civilians for violations of IHL,552 it stands to reason that states also have an obligation to ensure that PMSCs who are active in armed conicts know IHL.553 Territorial and home states have to disseminate norms of IHL as widely as possible among PMSCs and their personnel, taking into account the likelihood of their being involved
550 551

552

553

Pictet, Commentary GC I, p. 348. Ibid. The fact that the Commentary did not mention civilians accompanying the armed forces may be due to the diminished importance of such actors at the time. International criminal responsibility is another reason given in the Commentaries for ensuring education of the military in IHL: Pictet, Commentary GC I, p. 348. Louise Doswald-Beck makes this argument and points out that states now also focus on police and detention personnel in their dissemination activities. See Doswald-Beck, Private Military Companies under International Humanitarian Law, pp. 1323. See also Tonkin, State Control, pp. 1978.

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in situations of armed conict.554 Arguably, PMSCs are seeking jobs related to armed conicts.555 Therefore, home states must take measures to disseminate IHL to PMSCs even in peacetime and should provide for mechanisms to prevent and suppress violations of IHL even before the outbreak of conict. Although states of incorporation may not be able to monitor all the activities of the PMSCs registered in their territory, especially when they take place abroad, they may request a periodic report from such PMSCs on the respect of IHL by the company and its employees in their activities.556 The fact that states know where the activities of the companies are taking place may allow them to compare the information they receive and accordingly re-examine the decision to grant a licence to operate. This can create additional incentives for PMSCs to respect IHL. In order to renew an authorization of export of military services, states should take into account the violations of human rights and humanitarian law attributable to the company and the way the company dealt with those unlawful acts, including by co-operating 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.557 Moreover, if a PMSC behaves in contradiction to the humanitarian and human rights provisions under the authorization, the state of incorporation can impose sanctions such as the revocation or suspension of the licence, x a deadline to remedy such conduct, prohibit the company to reapply for a licence during a xed period of time or impose on the company civil or criminal nes and penalties.558

554

555

556

557

Montreux Document, Part I, points 9 and 14. This obligation is inherent in the obligation to ensure training for contracting states. Indeed, the Parliamentary Assembly of the Council of Europe observed, most of the large PMSCs are organised as shareholder companies or are part of prot-oriented enterprises. As such, they have every interest in the outbreak or maintenance of conicts as a means of securing their economic growth. The more conicts increase, the more the market for their services becomes protable. Council of Europe, Parliamentary Assembly, Recommendation 1858 (2009), Private Military and Security Firms and Erosion of the State Monopoly on the Use of Force (29 January 2009), para. 3. In a similar vein, Gillard suggests that licensing or regulatory schemes of national/home states for PMSCs require [a]nnual reporting to parliament on the implementation of the regulatory framework. See Gillard, Business Goes to War, p. 560. 558 Montreux Document, Part II, point 60(a). Ibid., Part II, point 69.

286

international responsibility of states

Conclusion

The acts of PMSCs operating in areas of conict may be attributable to the states that hire them under the normal rules of international law on state responsibility. According to our analysis, it will be only in very rare cases that PMSCs may be considered to be state organs according to Article 4 ASR and that their acts would be attributable to the state on that basis. That being said, there are a number of activities for which PMSCs may be contracted by states that may involve exercising elements of governmental authority, which would allow for imputability of those acts to states (Article 5 ASR) should a violation of international law occur. Our research suggests that security guarding one of the activities that raises signicant concerns, especially in conict zones does not necessarily involve an exercise of governmental authority such that not all conduct of PMSCs contracted to provide security by states is prima facie attributable to the contracting state, but it may when it entails direct participation in hostilities. We argue that there is a sliding scale of activities which involve an exercise of governmental authority, from directing or participating in combat operations (including certain aspects of programming weapons and interrogation) to activities that support the military (such as logistics, construction and catering services) but which do not entail exercising governmental authority. A states role in instructing, directing or controlling a PMSC may also provide an avenue for attribution for acts such as security guarding; however, the high threshold of control that tends to be required to satisfy this test means that it is not a panacea. We have argued, however, that the responsibility of states for the actions of PMSCs extends beyond only those acts that may be attributed to them since states also bear obligations of due diligence. Obligations arising from the duty of due diligence may differ depending on a states relationship with a PMSC. In our view, many of the recommendations set out in the Montreux Document as Good Practices in fact describe actions that states may take in order to show that they have acted with due diligence. The nature of the duty allows for a wide variety of actions that may satisfy its requirements; that being said, the failure to take some steps may denote a manifest lack of diligence with regard to PMSCs. We have shown that PMSCs are rarely organs of a state in terms of being integrated into the state armed forces. This means that the international legal obligations of states do not apply to them directly as organs

conclusion

287

of a state, but those obligations nevertheless (especially under IHL and IHRL) affect and circumscribe how states must behave towards PMSCs and dene measures that states should take in order to ensure that they respect their primary international legal obligations. These results lead us to query how IHL might apply to PMSCs and their personnel, a topic to which we turn in the following chapter.

3 The legal means through which PMSCs are bound by IHL

The relationship between private military and/or security companies (PMSCs) and international humanitarian law (IHL) can inscribe itself beyond and outside the mere attribution of PMSCs conduct to states and the correlative state responsibility. Indeed, the general tendency in international law today is to bypass the traditional state-oriented perspective in order to strengthen the regulatory regime and all the more so for IHL. The apparent unwillingness or inability of states to regulate PMSCs activities in armed conicts1 encourages some to afrm that the rules of IHL not only bind states but that they also bind PMSCs as companies directly. The present chapter will thus enquire into the relevance of that assertion by exploring the different legal means through which PMSCs would be bound by IHL. With this aim, this study will be divided along two main approaches allowing an exploration of the binding character of IHL upon PMSCs: in the rst part, PMSCs will be considered on the basis of corporate responsibility (i.e. as non-state actors) and, in the second part, following an individual responsibility approach (i.e. as the sum of their individual employees). When it comes to PMSCs as non-state actors, we recall that an entity has to be a subject of international law for it to acquire rights and obligations under international law. Albeit referring to international (and regional) organizations, Eric David argues that international organizations may be derivative subjects of international law, but they are subjects nonetheless and may be holders of rights and obligations under that law.2 Transposed to the case of PMSCs, this warrants examination
1

See, in the same vein albeit focusing on IHL law: E. de Brabandere, Human Rights and Transnational Corporations (2010) 4 Human Rights and International Legal Discourse 6872. Eric David, Principes de droit des conits arms, 4th edn (Brussels: Bruylant, 2008), p. 225 (authors translation), see also p. 234. For a similar consideration concerning the EU as a subject of international law, see Eric David, Rapport introductif in A.-S. Millet-Devalle (ed.), LUnion europenne et le droit international humanitaire (Paris: Pedone, 2010), pp. 1214. See also R. Kolb, G. Porretto and S. Vit, LApplication du droit international

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of the potential (ir)relevance of PMSCs international legal personality. As we will demonstrate, it is necessary to go beyond international personality to determine responsibility in terms of the rules incumbent upon the PMSC as a corporate body under IHL. Alternative avenues will be explored and analysed, both at the international and national levels. The second part, concerned with the applicability of IHL on the individual staff members of PMSCs, allows us to ll some of the gaps left over. Individual obligations under IHL are nowadays consensually acknowledged, and apply equally to PMSC personnel. Even so, the direct applicability of IHL to individuals suffers from a doctrinal and jurisprudential explanatory void as it is usually taken for granted. An analysis of IHL treaties and customary international humanitarian law will therefore provide for a legal construction of IHLs direct applicability to individuals. This dichotomy between corporate and individual responsibility nonetheless does not establish strict, impermeable and alternative options; rather, both approaches should be considered as complementary avenues in determining the legal means through which PMSCs are bound by IHL.

PMSCs as non-state actors

Personality in international law is a particularly elusive concept.3 Discussions in the legal literature are confusing and frequently misleading. As will be mentioned below (in section A 2), there are even good arguments for going beyond that concept.

PMSCs (as companies) as a subject of international law

1.1 Preliminary remarks on the conceptions of international personality Although it is now acknowledged that states are no longer the exclusive subject of contemporary international law, legal doctrine is not coherent
humanitaire et des droits de lhomme aux organisations internationales (Brussels: Bruylant, 2005), p. 124. Although the two terms are sometimes distinguished by authors, subject is used synonymously with personality for the purpose of the present developments. On the distinction between the two terms, see Jan Klabbers, The Concept of Legal Personality (2005) 11 Ius Gentium 3566.

290 legal means through which pmscs are bound by ihl

in proposing a uniform and general denition of international personality. It is tempting to say that there are as many denitions as authors. This is probably due to two main reasons. First, the question of who are the subjects of international law is closely connected with the conception of international law itself. Secondly, international personality will always involve a test of judgement and perception of the situation at hand and the overall context of the current nature and requirement of the international community at large.4 This raises in turn the issue of the political nature of such an exercise: subjects doctrine forms the clearing house between sources and substance: it is through subjects doctrine that the international allocation of values takes place, and as any political scientist knows, the authoritative allocation of values is one of the main political functions.5 Despite the great diversity of opinions on who can be a subject of international law, one can schematically distinguish three main conceptions of international personality. The rst conception is a rather restrictive one, according to which international personality is dened by reference to a set of clear-cut attributes that are implicitly based on an analogy with the state as the primary subject of international law. According to this position, an entity is a subject of international law if and only if the three following cumulative conditions are met: it has the capacity to conclude international agreements; the capacity to establish diplomatic relations; and the capacity to bring international claims.6
4 5

Malcolm Shaw, International Law, 3rd edn (Cambridge University Press, 1991), p. 137. Jan Klabbers, (I Cant Get No) Recognition: Subjects Doctrine and the Emergence of nonState Actors in J. Petman and J. Klabbers (eds.), Nordic Cosmopolitanism: Essays in International Law for Martti Koskenniemi (Leiden: Brill, 2003), p. 369. See esp. Christian Dominc, La Personnalit juridique dans le systme du droit des gens in J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century. Essays in Honour of Krzysztof Skubiszewski (The Hague: Kluwer, 1996), pp. 14771; Giovanni Distefano, Observations parses sur les caractres de la personnalit juridique internationale (2007) 52 Annuaire franais de droit international 10528; and to some extent, Jan Klabbers, An Introduction to International Institutional Law, 2nd edn (Cambridge University Press, 2009), p. 40. There are many variants of the state-analogy conception. Feldman proposes a slightly broader denition: Summing up the main features of international personality, we can determine such general criteria as: (1) participation in international legal relations; (2) autonomous will of the participants of international legal relations; (3) possession by the participant of its own international rights and duties in relation to other international person. David Feldman, International Personality (1985) 191 Recueil des Cours de lAcadmie de Droit International 345414, 3589. Another version of the state-analogy conception is based on three elements: incurring responsibility for any violations of international law; claiming the benets of

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Although such a generalization from the capacities possessed by states may be transposed to international organizations, this old-fashioned and particularly restrictive conception of international personality appears to be in contradiction with the sociological evolution of contemporary international society, which is more and more characterized by a plurality of actors. Moreover, one can argue that such an analogy with states is inappropriate given their very specic status in international law. Indeed, it is important to stress that states are both subjects of and creators of international law and as such, these two characteristics should be distinguished for the purpose of establishing a general denition of international personality applicable to non-state entities. In reaction to the state-analogy conception of international personality, a second and more extensive conception has been proposed in doctrine, which relies on a single criterion: the capacity to be invested of rights and obligations by international law.7 Accordingly, the capacities to conclude international agreements and to bring international claims are irrelevant. Lauterpacht explained that:
[t]he quality of a subject of international law i.e.: the capacity of being a subject of rights created and recognized by international law does not depend upon the capacity to claim or enforce such rights in the beneciarys own name. Nor does it depend upon whether the persons or body concerned are a contracting party in relation to the instrument creating such rights. It is sufcient if such rights are created in their favour and are effectively vested in them.8
rights conferred by international law; possessing capacity to enter into contractual or other legal relations with other subjects of international law. Chris Okeke, Controversial Subjects of Contemporary International Law (Rotterdam University Press, 1974), p. 19; P. K. Menon, The Subjects of Modern International Law (1990) 3 Hague Ybk Intl L 84; A. Orakhelashvili, The Position of the Individual in International Law (2001) 31 California Western Intl LJ 256. Other authors add a fourth element based on the enjoyment of privileges and immunities from national jurisdictions: I. Brownlie, Principles of Public International Law, 6th edn (Oxford University Press, 2003), p. 57; Martin Dixon, Textbook on International Law, 5th edn (Oxford University Press, 2005), pp. 1034. See esp. Hermann Mosler, Rexions sur la personnalit juridique en droit international public in Mlanges offerts Henri Rolin: problmes de droit des gens (Paris: Pedone, 1964), p. 234; Julio A. Barberis, Nouvelles questions concernant la personnalit juridique internationale (1983) 179 Recueil des Cours de lAcadmie de Droit International 1678; Bettina Kahil-Wolff, LIndividu en tant que sujet de droit international public (1997) 116 Revue de droit Suisse 125; J. Salmon (ed.), Dictionnaire de droit international public (Brussels: Bruylant, 2001), p. 820; J. Combacau and S. Sur, Droit international public, 5th edn (Paris: Montchrestien, 2001), p. 312. Hersch Lauterpacht, The Subjects of International Law in E. Lauterpacht (ed.), International Law: Being the Collected Papers of Hersch Lauterpacht, vol. 1: The General Works

292 legal means through which pmscs are bound by ihl

However, this approach has been criticized as blurring the traditional distinction between objects and subjects of international law since the capacity to bring claims would be a distinguishing characteristic of legal personality.9 One could nevertheless argue that such a capacity concerns the enforcement of a norm rather than to whom it is addressed.10 Between the two different conceptions, an intermediate position was promoted by the International Court of Justice (ICJ) in the Reparation case. According to the Court, an entity is a subject of international law only if two cumulative conditions are fullled: it is capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.11 Although this denition has been frequently quoted in legal literature, it has also been criticized as being circular since the two criteria presuppose and depend on the existence of a legal person.12 Notwithstanding the limits inherent to such a denition, the Court helps to clarify one crucial aspect of international personality by highlighting the fact that the subjects of international law may substantially vary from one to another:
The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been inuenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States.13
(Cambridge University Press, 1970), p. 147. See more generally: Vincent Chetail, Le Droit davoir des droits en droit international public: rexions sur la subjectivit internationale de lindividu in M.-C. Caloz-Tschopp (ed.), Lire Hannah Arendt aujourdhui. Pouvoir, guerre, pense, jugement politique (Paris: Lharmattan, 2008), pp. 21732. See e.g. Cezary Berezowski, Les Problmes de la subjectivit internationale in Mlanges offerts Juraj Andrassy (The Hague: Martinus Nijhoff, 1981), p. 34. Lauterpacht explained that: It is important not to exaggerate the importance of what is, in the last resort, a procedural rule. The faculty to enforce rights is not identical with the quality of a subject of law or of a beneciary of its provisions. A person may be in possession of a plenitude of rights without at the same time being able to enforce them in his own name. This is a matter of procedural capacity. Infants and lunatics have rights; they are subjects of law. This is so although their procedural capacity is reduced to a minimum. See H. Lauterpacht, General Rules of the Law of Peace, in Lauterpacht (ed.), International Law, vol. 1, pp. 2867. Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, at 179 (Reparation for Injuries). Brownlie, Principles of Public International Law, p. 57. Reparation for Injuries, at 178.

10

11

12 13

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The very concept of international personality is thus neither static nor uniform. There are different degrees of personality which depend on the extent of the capacities attributed by international law. Besides the great diversity of subjects, one should distinguish between two different types of personality: on the one hand, original and plenary personality which belongs to states as the primary subject of international law and, on the other hand, derived and limited personality which states confer on other entities.14 Against this background, the next question is to examine whether international companies may have a limited personality derived from international law.

The debate on the international personality of companies and its (ir)relevance for PMSCs Given the controversies surrounding the very concept of international personality, it is not surprising that the question of multinational companies as a subject of international law has raised a long-standing and complex debate.15 That debate rst arose during the 1960s in the context of nationalization and permanent sovereignty over resources of newly independent states. Since the 1990s, the complex issue of the international subjectivity of corporations has resurfaced in the context of their alleged responsibility in respect of human rights. The terms of the debate are mainly polarized around two antagonist schools of authors that deserve further elaboration. A signicant part of the doctrine considers that multinational corporations are not a subject of international law.16 This assertion is generally
14

1.2

15

16

The distinction between original and derived personality has been notably acknowledged by the ICJ in Legality of the Use by a State of Nuclear Weapons in Armed Conict (WHO Case) (Advisory Opinion) [1996] ICJ Rep 66, at 78, para. 25: international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them. There is no legally agreed denition of a transnational/multinational corporation. For a review of the various denitions, see P. T. Muchlinski, Multinational Enterprises and the Law (Oxford University Press, 2007), pp. 1215. The most frequently used denition in the legal doctrine is a descriptive one, which refers to a corporation that owns or controls production or service facilities outside the country in which it is based. This includes the vast majority of PMSCs, though not all of them. The debate on subjectivity is the same for all corporations having international relevance, such as PMSCs actively working in situations of armed conicts. See esp. Hans W. Baade, The Legal Effects of Codes of Conduct for Multinational Enterprises (1979) 22 German Ybk Intl L 16; Joe Verhoeven, Droit international des

294 legal means through which pmscs are bound by ihl

based on two different kinds of arguments. First, from a political and arguably systemic perspective, acknowledging transnational corporations as a subject of international law would substantially reduce the power of states and thus their traditionally dominant position in international law.17 Secondly, from a more technical perspective, the denial of personality to transnational corporations is frequently based on the abovementioned state-analogy conception of personality. Authors particularly stress the fact that corporations lack the power to directly participate in the international lawmaking process.18 However, the two main
contrats et droit des gens (19789) Revue belge de droit international 209; Feldman, International Personality, p. 359; Antonio Cassese, International Law in a Divided World (Oxford University Press, 1986), p.103; Louis Henkin, International Law: Politics, Values and Functions (1989) 126 Recueil des Cours de lAcadmie de Droit International 199; Franois Rigaux, Transnational Corporations in M. Bedjaoui (ed.), International Law: Achievements and Prospects (Dordrecht: Martinus Nijhoff, 1991), p. 129; P. Merciai, Les Enterprises multinationales en droit international (Brussels: Bruylant, 1993), pp. 198201; F. Johns, The Invisibility of the Transnational Corporation: An Analysis of International Law and Legal Theory (1994) 19 Melbourne U L Rev 900, 91314; K. P. Sauvant and V. Aranda, The International Legal Framework for Transnational Corporation in A. A. Fatouros (ed.), Transnational Corporations: The International Legal Framework (New York: Routledge, 1994), vol. 20, p. 84; Dominc, La Personnalit juridique, pp. 154 and 165; Brownlie, Principles of Public International Law, p. 65; Peter Malanczuk, Akehursts Modern Introduction to International Law, 7th edn (London: Routledge, 1997), p. 102. Some authors consider that, in the current stage of international law, the international personality of transnational corporations remains an open question: Malcolm Shaw, International Law, 5th edn (Cambridge University Press, 2003), p. 225. The Third US Restatement of Foreign Relations Law also notes that [t]he multinational enterprise or corporation (sometimes referred to as a transnational or global corporation) is an established feature of international economic life, but it has not yet achieved special status in international law or in domestic legal systems: vol. 1 (1987), p. 126. See notably: C. Lazarus et al., LEntreprise multinationale face au droit (Paris: Litec, 1978), p. 421; Feldman, International Personality, pp. 35961; Johns, Invisibility of the Transnational Corporation, p. 900. E.g. Baade explains that: MNEs [multinational enterprises] are neither states nor public international organizations, and thus neither general natural nor articial subjects of international law as presently dened. Even if their procedural role in follow-up proceedings should, in analogy to human-rights complaints mechanisms, sufce to confer upon them partial or ad hoc, they would still lack at least one of the essential attributes of full international personality. This is the power to participate directly in the international norm-creating process. Baade, Legal Effects of Codes of Conduct, p. 16. On the role of multinational corporations in the lawmaking process, see generally: Jonathan I. Charney, Transnational Corporations and Developing Public International Law (1983) Duke LJ 74888; Peter Malanczuk, Multinational Enterprises and Treaty-making: A Contribution to the

17

18

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arguments invoked for denying international personality to multinational corporations are in sharp contrast with the sliding-scale conception of international personality as acknowledged by the ICJ in the Reparation for Injuries case. In that particular case, the Court clearly rejected any kind of analogy with the state in order to infer the attributes of international personality: the Court has come to the conclusion that the [United Nations] Organization is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State.19 Moreover, while the capacity to participate in the international lawmaking process may be considered as a potential indicator, it is nevertheless not part of the denition given by the Court. That denition is based on the capacity to have rights and obligations under international law and the capacity to bring international claims. In the specic context of PMSCs, Avril McDonald, one of the very rare authors having broached this issue, concluded that they do not have international personality. Her reasoning, however, is neither welldeveloped nor completely convincing. She argues that:
PMCs, even transnational ones, are not international organisations as understood by international law. They lack the required characteristics, namely an association of states and the ability to exercise legal powers on the international plane. PMCs are incorporated in states and are thus subject to national rather than international jurisdiction. They cannot be considered as subjects of international law and it would be impossible to bring a claim against one, for example, founded in international law.20

The analogy with intergovernmental organizations is not appropriate, in so far as the ICJ acknowledged that subjects of international law are not necessarily identical in their nature. Moreover, the fact that an entity is a subject of domestic law is not an obstacle to conferring international personality on it. The last argument namely the impossibility to bring a claim at the international level is more decisive, although the author acknowledges that a claim could however be brought under national law,
Discussion on Non-state Actors and the Subjects of International Law in V. GowllandDebbas (ed.), Multilateral Treaty-making: The Current Status of Challenges to and Reforms needed in the International Legislative Process (The Hague: Martinus Nijhoff, 2000), pp. 4572. Reparation for Injuries, at 179. Avril McDonald, The Legal Status of Military and Security Subcontractors in R. Arnold and P. A. Hildbrand (eds.), International Humanitarian Law and the 21st Centurys Conicts: Changes and Challenges (Lausanne: Editions interuniversitaires Suisse, 2005), pp. 2234.

19 20

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which was based on violations of international norms.21 This argument needs to be compared to the second school of authors, who argue that multinational corporations in general have an international personality in accordance with the denition of the Reparation for Injuries case. A growing and substantial part of the doctrine now considers that multinational corporations have acquired a limited personality derived from international law.22 It is argued that, in some specic circumstances, the capacity to have rights and obligations and the capacity to bring international claims have been directly conferred on them by international law. One should add however that this is in any case a
21 22

Ibid., p. 224. See esp. Wolfgang Friedmann, The Changing Structure of International Law (London: Stevens and Sons, 1964), p. 223; David A. Ijalaye, The Extension of Corporate Personality in International Law (New York: Oceana, 1978), pp. 22146; P. Cahier, Changements et continuit du droit international: cours gnral de droit international public (1985) 195 Recueil des Cours de lAcadmie de Droit International 1589; P. Fischer, Transnational Enterprises in R. Bernhardt (ed.), Encyclopedia of Public International Law (Amsterdam: North-Holland, 1985), vol. 8, p. 518; Ignaz Seidl-Hohenveldern, International Economic Law: General Course on Public International Law (1986) 198 Recueil des Cours de lAcadmie de Droit International 3542; Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge University Press, 1997), pp. 78; C. Baez et al., Multinational Enterprises and Human Rights (19992000) 8 U Miami Intl and Comp L Rev 21722; C. Leben, Quelques rexions thoriques propos des contrats dtats in Souverainet tatique et marchs internationaux la n du XX sicle. Mlanges en lhonneur de Philippe Kahn (Paris: Litec, 2000), pp. 11920; Dominique Carreau, Droit international, 7th edn (Paris: Pedone, 2001), pp. 312; Steven Ratner, Corporations and Human Rights: A Theory of Legal Responsibility (2001) 111 Yale LJ 488; Q. D. Nguyen, P. Daillier and A. Pellet, Droit international public, 7th edn (Paris: LGDJ, 2002), pp. 6478; P. M. Dupuy, LUnit de lordre juridique international. Cours gnral de droit international public (2002) 297 Recueil des Cours de lAcadmie de Droit International 105 18; N. M. C. P. Jgers, Corporate Human Rights Obligations: In Search of Accountability (Antwerp: Intersentia, 2002), pp. 2735; Surya Deva, Human Rights Violations by Multinational Corporations and International Law: Where from Here? (2003) 19 Connecticut J Intl L 506; Patrick Dumberry, LEntreprise, sujet de droit international? Retour sur la question la lumire des dveloppements rcents du droit international des investissements (2004) 108 Revue gnrale de droit international public 104 21; D. Kinley and J. Tadaki, From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law (2004) 44 Virginia J Intl L 9446. Some authors are slightly more cautious considering that the international personality of corporations is both possible and useful but this is not the panacea for all the problems of international regulation: D. Kokkini-Iatridou and P. J. I. M. de Waart, Foreign Investments in Developing Countries: Legal Personality of Multinationals in International Law (1983) Netherlands Ybk Intl L 11123, 131; A. A. Fatouros, Transnational Enterprise in the Law of State Responsibility in R. Lillich (ed.), International Law of State Responsibility for Injuries to Aliens (Charlottesville: University Press of Virginia, 1983), pp. 3868.

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functional personality in the sense that it is attributed to corporations in the strict limits and for the specic purpose required by international law. The question whether they have international personality requires a case-bycase examination of the relevant applicable norms of international law. Following this approach, a limited and derived personality may be conferred by three distinct sources: internationalized contracts (also called contrats dtat), treaties and customary law, which require further analysis. As for the rst source, internationalized contracts are concluded between a host state and a corporation, and are mostly used in the eld of oil and mining concessions and development agreements. These contracts not only spell out rights and obligations of the parties, but also frequently contain a clause stating that the contract is governed by international law. Moreover, most of them provide for international arbitration in case of a dispute. Already in 1964 Friedmann afrmed that private corporate parties to such contracts should be regarded as possessing international legal personality.23 This reasoning was remarkably acknowledged by the arbitral award delivered in 1977 in Texaco Calasiatic v. Libyan Arab Republic:
In other words, stating that a contract between a State and a private person falls within the international legal order means that for the purposes of interpretation and performance of the contract, it should be recognized that a private contracting party has specic international capacities. But, unlike a State, the private person has only a limited capacity and his quality as a subject of international law does enable him only to invoke, in the eld of international law, the rights which he derives from the contract.24

Although that interpretation is shared by many authors,25 it remains controversial.26 It has been argued that a state alone cannot confer on its
23

24 25

26

Friedmann, Changing Structure of International Law, p. 223. See also Wolfgang Friedmann, General Course in Public International Law (1969) 127 Recueil des Cours de lAcadmie de Droit International 122. Texaco Calasiatic v. Libyan Arab Republic (Merits) (1978) 17 ILM 137, at 17, para. 47. See notably Fischer, Transnational Enterprises, p. 518; Ignaz Seidl-Hohenveldern, International Economic Law, 2nd edn (Dordrecht: Martinus Nijhoff, 1992), pp. 1020; Cahier, Cours gnral, pp. 1589; Dupuy, Cours gnral, pp. 1056; Leben, Contrats dtats, pp. 11920. See esp. Georges Abi-Saab, The International Law of Multinational Corporations: A Critique of American Legal Doctrines (1971) Annales dtudes internationales 97122; Franois Rigaux, Des dieux et des hros. Rexion sur une sentence arbitrale (1978) Revue critique de droit international priv 43559; Malanczuk, Multinational Entreprises and Treatymaking, pp. 5861; Brownlie, Principles of Public International Law, pp. 525 ff.

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private contract partner the status of subject of international law, which could be opposable to other states. It is true that such contracts cannot establish an erga omnes personality. However, those contracts remain a non-negligible legal tool in order to regulate the conduct of PMSCs at the international level. From the perspective of the present study, internationalized contracts between a state and a PMSC should at least include a clause restating that both parties are bound by the relevant applicable norms of international human rights law (IHRL) and IHL.27 Were such a clause be omitted from the contract, one can still consider the PMSC as implicitly bound by the rules of IHL to the extent that the contract envisions the PMSC operating in a situation of armed conict. Therefore, arguably, it is the very functions vested in the PMSC by the terms of the contract that determine the PMSCs obligations, in the same way the implied powers of international organizations can be inferred from their functional personality.28 Also, the introduction of a clause on the settlement of disputes (whether arbitral or judicial) outside domestic law enforcement systems is crucial for ensuring the respect of these norms by the two parties. The development of a model of internationalized contract would be welcomed as a step forward for the promotion of a coherent and uniform practice among states and companies in this eld. The second and certainly most established way for conferring international personality on a non-state entity is through the adoption of a
27

28

For further discussion on contracts as a potential avenue for binding PMSCs by the rules of IHL, see section A 2.5 on domestic regulation. International intergovernmental organizations are limited subjects of international law. They have limited subject status because their competence extends only as far as their express or implied powers. By the same token, individuals and corporations attain partial subject status to the extent that international law endows them with rights and duties: J. A Hessbruegge, Human Rights Violations Arising from Conduct of Non-state Actors (2005) 11 Buffalo Human Rights L Rev 28. On international organisations implied powers, see Reparation for Injuries, at 174 ff. Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specied or implied in its constituent documents and developed in practice: ibid., at 180. The court further explained: The Charter does not expressly confer upon the Organization the capacity to include, in its claim for reparation, damage caused to the victim or to persons entitled through him. Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties. [Ibid., at 182] See also e.g. Malcolm Shaw, International Law, 6th edn (Cambridge University Press, 2008), pp. 13068.

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treaty. In practice, the capacity to have rights and to bring international claims has been already conferred on corporations by several treaties related to investment. At the multilateral level, the 1965 Convention establishing the International Centre for the Settlement of Investment Disputes29 and the 1995 Energy Charter Treaty,30 as well as at the regional level the 1993 North American Free Trade Agreement (NAFTA)31 and the 1994 Protocol of Colonia for the Promotion and Reciprocal Protection of Investments in MERCOSUR32 are good examples. Similar provisions may be found in other elds of international law. For instance, the UN Convention on the Law of the Sea (UNCLOS) provides for a binding arbitration mechanism in case of disputes arising from the interpretation or application of a contract between the parties concerned, including legal persons.33 UNCLOS also stipulates specic and direct obligations for corporations. For example, Article 137(1) and (3) provides that no juridical person shall appropriate any part of the ocean oor beyond the limits of national jurisdiction nor claim or exercise any rights on its resources. Several authors have deduced from this rather eclectic practice that corporations have been granted an international personality through such treaties, which is however circumscribed to the strict capacities expressly conferred on them by the relevant treaties.34
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32 33 34

1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) 4 ILM, at 532. See esp. its Art. 25. See on the access of private corporations: Christoph Schreuer, Access to ICSID Dispute Settlement for Locally Incorporated Companies in F. Weiss, E. Denters and P. de Waart (eds.), International Economic Law (The Hague: Kluwer, 1998), pp. 497512; Muchlinski, Multinational Enterprises, p. 540. The Energy Charter Treaty (1995) 34 ILM, at 373. See esp. its Art. 26. For a comment, see T. W. Waelde, Investment Arbitration under the Energy Charter Treaty: From Dispute Settlement to Treaty Implementation (1996) 12 Arbitration International 42967; F. Poirat, LArticle 26 du trait relative la charte de lnergie: procdures de rglement des diffrends et statut des personnes prives (1999) 102 Revue gnrale du droit international public 7381. The North American Free Trade Agreement (1993) 32 ILM, at 605. See esp. its Chapter 11. For a comment, see notably J. Vanduzer, InvestorState Dispute Settlement under NAFTA Chapter 11: The Shape of Things to Come? (1997) 35 Canadian Ybk Intl L 2636; R. J. Zedalis, Claims by Individuals in International Economic Law: NAFTA Development (1996) 7 American Rev Intl Arbitration 11617. www.cvm.gov.br/ingl/inter/mercosul/coloni-e.asp. See Art. 9. United Nations Convention on the Law of the Sea (1982) 21 ILM 1261. See Arts. 1878. See esp.: D. Kokkini-Iatridou and P. J. I. M. de Waart, Economic Disputes Between States and Private Parties: Some Legal Thoughts on the Institutionalization of their Settlement (1986) 33 Netherlands Intl L Rev 3235; Schrijver, Sovereignty over Natural Resources,

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However, treaties directly conferring legal capacities on corporations are not abundant. The most common way of regulating the conduct of corporations follows a more traditional pattern centred on the rights and obligations of states parties rather than those of the corporations per se. Although there is no obstacle in international law to adopting treaties directly stipulating rights and obligations for corporations, the majority of existing conventions require states to enact and enforce laws applicable to enterprises.35 As such, rights and obligations arising from these conventions are indirectly applied to corporations, as demonstrated by the numerous treaties concluded in the context of the protection of environment36 and the ght against corruption.37 Those rights and obligations although recognized by international instruments can only be enforced via domestic law. In fact, state parties are required to criminalize the prohibited conduct for corporations as well. Corporations are accordingly treated more as an object of international regulation than as a proper subject on their own. On these grounds, the 2009 Draft International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies presented somewhat a mixed picture. On the one hand, draft Article 31 (which did not appear in subsequent drafts) spelled out rather far-reaching obligations towards PMSCs, directly opposable to them. Paragraph 1 laid down that [w]ithin their respective spheres of activity and inuence, Private Military and Security Companies have the obligation to respect, ensure respect of and protect human rights recognized in international as well as national law, which implies observance and
pp. 78; Dupuy, Cours gnral, p. 118; Jgers, Corporate Human Rights Obligations, p. 31; Dumberry, LEntreprise, sujet de droit international?, pp. 11314; Kinley and Tadaki, From Talk to Walk, p. 947. See generally: Carlos Manuel Vzquez, Direct vs. Indirect Obligations of Corporations under International Law (20045) 43 Columbia J Transnl L 92759; Menno Kamminga, Holding Multinational Corporations Accountable for Human Rights Abuses: A Challenge for the EC in P. Alston (ed.), The EU and Human Rights (Oxford University Press, 1999), pp. 55661. Among numerous possible examples, see esp.: International Convention on Civil Liability for Oil Pollution Damage, Brussels, 29 November 1969, in force 19 June 1975, 973 UNTS 3 (Arts. I(3) and IIIVII); Basel Convention on the Control of Transboundary Movements of Hazardous Wastes, Basel, 22 March 1989, in force 5 May 1992, 1673 UNTS 126 (Arts. 24). See e.g.: United Nations Convention against Corruption, UNGA Res. 58/4, 31 October 2003 (Art. 23); OECD Convention on Combating Bribery of Foreign Public Ofcials in International Business Transactions, 1997 (Arts. 23); Inter-American Convention against Corruption, 1996 (Art. VIII); Council of Europe Criminal Law Convention on Corruption, 1999, ETS, no. 173 (Art. 18).

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respect of international human rights standards and national laws of the countries of origin, transit and operation, as well as a duty not to contribute directly or indirectly to human rights violations.38 On the other hand, the vast majority of the provisions of the draft convention are addressed to states in terms of regulating the activities of PMSCs and criminalizing violations of international law.39 Furthermore, Article 18(3) in the most recent draft convention (July 2010) is addressed to the personnel of PMSCs and not to PMSCs as companies for the purpose of setting out rules on how they may use force. While the future of international regulation towards PMSCs cannot be predicted, we can surely afrm that the very purpose of the draft convention is not to erect PMSCs as a proper subject of international law. The rationale behind this initiative is rather to allow and oblige states to control their activities and, by doing so, to ensure that these private actors duly respect international law. The 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa also known as the Kampala Convention follows a similar logic.40 Its Article 3 on the General Obligations Relating to States Parties asks state parties to ensure the accountability of non-State actors concerned, including multinational enterprises and private military or security companies, for acts of arbitrary displacement or complicity in such acts.41 In any case, the adoption of a specic treaty aimed at regulating PMSCs would certainly help to clarify their legal regime, although it should not prejudice the application of norms of international law as spelled out in the present volume. The third source invoked to justify the international personality of corporations is customary law. According to this approach, the abovementioned treaties on investment and the codes of conduct that have proliferated over the past forty years42 are part of a broader customary
38

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See paras. 24. See also Art. 7(2): In providing military and/or security services, private military and security companies, as well as their personnel, are obliged to take cognizance of and to observe the norms of international humanitarian law and human rights law as well as relevant domestic law. See Arts. 429 of the 2009 Draft Convention and Arts. 428 of the 2010 Draft Convention. Art. 42 of the 2010 Draft also deals with the obligations of intergovernmental organizations for regulating the conduct of PMSCs. African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, adopted by the Special Summit of the Union held in Kampala, Uganda, 23 October 2009 (not yet entered into force). Ibid., Art. 3(1)(h). For an overview of the multiple codes of conduct dealing with multinational corporations, see esp.: Sauvant and Aranda, Transnational Corporations, pp. 867; N. Horn

302 legal means through which pmscs are bound by ihl

law process acknowledging the international personality of corporations. Although codes of conduct are by denition not binding,43 some scholars have argued that they contain elements which could serve as an indication of the willingness of states to assume that MNEs possess the principal qualities characteristic of an international legal person.44 The majority of codes directly address the rules of conduct contained therein to corporations and some of them even contain implementation mechanisms enabling corporate behaviour to be scrutinized. This is the case of two frequently quoted guidelines, the rst being the one adopted by the Organization for Economic Co-operation and Development (OECD) and the other drafted by the International Labour Organization (ILO). The OECD Guidelines for Multinational Enterprises, adopted in 1976 and last revised in 2000, require corporations to follow standards laid down in the various elds of environment, human rights, corruption, consumer interests and competition.45 Although it is explicitly stated that observance of the Guidelines by enterprises is voluntary and not legally enforceable,46 these guidelines are curiously accompanied by a rather detailed implementation mechanism.47 Nevertheless, the purpose of this
(ed.), Legal Problems of Codes of Conduct for Multinational Enterprises (Deventer: Kluwer, 1980); Merciai, Les Entreprises multinationales, pp. 87151; Sean D. Murphy, Taking Multinational Corporate Codes of Conduct to the Next Level (20045) 43 Columbia J Transnl L 389433. See on the legal nature of the codes of conduct: J. Davidow and L. Chiles, The United States and the Issue of the Binding or Voluntary Nature of International Codes of Conduct regarding Restrictive Business Practices (1978) 72 AJIL 24771; Baade, Legal Effects of Codes of Conduct, pp. 1152; Merciai, Les Entreprises multinationales, pp. 16390, 26287. Kokkini-Iatridou and de Waart, Legal Personality of Multinationals, p. 114. See also: K. G. Del Ponte, Formulating Customary International Law: An Examination of the WHO International Code of Marketing of Breastmilk Substitutes (1982) 5 Boston College Intl and Comparative L Rev 377403; Seidl-Hohenveldern, International Economic Law, p. 42. OECD Guidelines for Multinational Enterprises, OECD, 2008, www.oecd.org/dataoecd/ 56/36/1922428.pdf. Ibid., p. 12, para. 1. The procedure for dealing with disputes about the guidelines is a two-step process. Member states, companies and employee organizations may request National Contact Points for a consultation for all matters covered by the guidelines, including complaints about a company. If the disagreement is not resolved by mediation at national level, Contact Points can refer it to the OECDs Committee on International Investment and Multinational Enterprises, which has ultimate responsibility for the guidelines. For a description of this procedure, see: International Council on Human Rights Policy (ICHRP), Beyond Voluntarism: Human Rights and the Developing International Legal Obligations of Companies (Geneva: International Council on Human Rights Policy,

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non-binding procedure is not to judge the behaviour of individual companies as such but merely to clarify the meaning of the guidelines in case of a disagreement on their interpretation and application. The ILO Declaration of Principles concerning Multinational Enterprises and Social Policy,48 adopted in 1977 and revised in 2000, follows a similar pattern. Compared to the OECD guidelines, it contains more specic standards on human rights, but its implementation procedure is slightly more rudimentary than that of the OECD.49 Beyond the specic scope and content of the various codes of conduct, it is dubious that they have succeeded in creating a customary norm that would acknowledge or even confer a proper international personality on corporations.50 Indeed, the different initiatives launched within the United Nations (UN) have highlighted persistent disagreements between states when adopting a code of conduct directly addressed to corporations. After long-standing and sensitive debates conducted between 1974 and 1992, states failed to adopt on the draft UN Code of Conduct on Transnational Corporations51 because of major disagreements between industrialized and developing countries on the crucial reference to international law and on the inclusion of standards of treatment for multinational corporations.52 Divergences among states resurfaced in 2003 when the Sub-Commission on Human Rights prepared its Norms
2002), pp. 99100; Jgers, Corporate Human Rights Obligations, pp. 1069; Muchlinski, Multinational Enterprises. Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (1978) 17 ILM 422. When the meaning of the Tripartite Declaration is disputed, governments can ask a subcommittee of the Governing Body the Subcommittee on Multinational Enterprises to provide its interpretation. Workers and employers organizations can also ask for interpretations, but only if their governments fail to do so. As with the OECD procedure, however, the mechanism does not judge the conduct of specic companies. See Jgers, Corporate Human Rights Obligations, pp. 11214. See Baade, Legal Effects of Codes of Conduct, pp. 1622; Johns, Invisibility of the Transnational Corporation, pp. 899901; Kinley and Tadaki, From Talk to Walk, p. 952. For the latest version of the text, see UN Doc. E/1990/94. The alleged involvement of the US corporation ITT in the overthrow of the democratically elected government of Salvador Allende in Chile was the immediate cause underlying the decision to draft a code of conduct. See Jgers, Corporate Human Rights Obligations, pp. 1001, 120. On the difculties and disagreements encountered in the negotiations, see S. Dell, The United Nations Code of Conduct on Transnational Corporations in J. Kaufmann (ed.), Effective Negotiation: Case Studies in Conference Diplomacy (Dordrecht: Martinus Nijhoff, 1989), pp. 5374; P. Lansing and A. Rosaria, An Analysis of the United Nations Proposed Code of Conduct for Transnational Corporations (1991) 14 World Competition L & Economic Rev 3540; Jgers, Corporate Human Rights Obligations, pp. 1213.

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on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights.53 The Commission on Human Rights nally decided not to adopt that code, stating that it has not been requested by the Commission and, as a draft proposal, has no legal standing.54 Against such a controversial background, it is therefore difcult to identify, based on codes of conduct, a consensus among states to the effect that corporations may have a customary law personality. In the particular context of PMSCs, the Montreux Document adopted in 2008 conrms this assertion, given that only one statement is specically addressed to PMSCs in rather vague terms,55 while the vast majority are aimed at states and at members of PMSCs as individuals. More generally, its explicit purpose is to recall certain existing international legal obligations of States regarding private military and security companies from various international humanitarian and human rights agreements and customary international law.56 Some also emphasize that the Montreux Document has been adopted by only thirty-six states and thus still lacks a truly international endorsement for establishing international personality under customary law.57
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E/CN.4/Sub.2/2003/12/Rev.2 (2003). For an overview of the history and design of the Norms, see D. Weissbrodt and M. Kruger, Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights in P. Alston (ed.), Non-state Actors and Human Rights (Oxford University Press, 2005), pp. 177226. See also E. Decaux, La Responsabilit des socits transnationales en matire de droits de lhomme (2005) Revue de science criminelle et de droit pnal compar 78998. UN Doc. E/CN.4/DEC/2004/116 (2004), p. 82. The commission decided in April 2005 to request the Secretary-General to appoint a special representative on the issue of human rights and transnational corporations and other business enterprises for identifying and clarifying the standards of corporate responsibility and accountability with regard to human rights: (2005) UN Doc. E/CN.4/RES/2005/6. According to Part I, point 22, PMSCs are obliged to comply with international humanitarian law or human rights law imposed upon them by applicable national law, as well as other applicable national law such as criminal law, tax law, immigration law, labour law, and specic regulations on private military or security services. Part One, Introduction. Emphasis added. J. L. Gomez del Prado, member of the UN Working Group on the use of mercenaries, notes that: One of the problems is that the Swiss Initiative has not been as broad a consultative process as required under the United Nations system. For example, States from Latin America and the Caribbean region did not participate in its work and the unbalanced representation of Western Group States (nine out of the seventeen adopting states) denotes the heavy involvement of countries where most of the security industry originates and operates from. J. L. Gomez del Prado, Private Military and Security Companies and the UN Working Group on the Use of Mercenaries (2008) 13 J Conict & Security L 448.

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While the initiative led by Swizerland and the PMSC industry, resulting in the adoption of an International Code of Conduct for Private Security Providers, aims at establishing direct obligations incumbent on private security companies as a reading of the Code demonstrates58 it remains difcult to deduce a conrmation of PMSCs customary law personality from such a document. This initiative is indeed not the fruit of inter-state negotiations (although Switzerland and the UK were cosponsors of it), but rather of PMSCs, acting in collaboration with the Swiss Federal Department of Foreign Affairs, a non-government organization (NGO) namely the Geneva Centre for the Democratic Control of Armed Forces and an academic institution (the Geneva Academy of International Humanitarian Law and Human Rights). Although resort to codes of conduct has been at least for the moment unable to establish a customary law personality for corporations, one should not underestimate the role of soft law for regulating the conduct of such private actors. Intergovernmental declarations and other related non-binding enactments are particularly useful for promoting a common understanding on new issues of international concern and for encouraging predictable and consistent behaviours of states. In the medium or long term, soft-law instruments may accordingly pave the way for future conventional or customary law regulations. To conclude, the inquiry whether international corporations in general and PMSCs in particular are a subject of international law proves to be a rather frustrating and inconclusive exercise. Although a treaty and to some extent internationalized contracts may confer limited international personality on them, the current state of international law does not permit us to consider that PMSCs are a subject of international law. This in turn raises the question whether international law provides for other legal means by which PMSCs are bound.

Beyond international personality: alternative avenues for binding PMSCs

Given the persisting controversies on the concept of international personality and its applicability to multinational corporations, several authors have highlighted the need for new approaches. Rosalyn Higgins has asserted that:
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The International Code of Conduct for Private Security Companies, www.icoc-psp.org.

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We have all been held captive by a doctrine that stipulates that all international law is to be divided into subjects that is, those elements bearing, without the need for municipal intervention, rights and responsibilities; and objects that is, the rest. Finally, the whole notion of subjects and objects has no credible reality, and, in my view, no functional purpose. We have erected an intellectual prison of our own choosing and then declared it to be an unalterable constraint.59

Following the same line of reasoning, Andrew Clapham suggests to move beyond the self-imposed formalistic legal problem of subjectivity and concentrate on capacity.60 He considers that international rights and duties depend on the capacity of the entity to enjoy those rights and bear those obligations; such rights and obligations do not depend on the mysteries of subjectivity.61 One can argue however that such a departure from the concept of international personality is only apparent. Focusing on capacity rather than personality appears to be an upsurge of the extensive conception of subjectivity presented above and mostly promoted by Lauterpacht, according to which the capacity to be vested of rights and obligations is the primary criterion of international personality. Moreover, from a purely positivist perspective, one should acknowledge that, with few exceptions, current international law rarely addresses explicit obligations directly to corporations. Given that the capacity to be vested of rights and obligations is seldom directly conferred by international law on
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Rosalyn Higgins, Problems and Process: International Law and How We Use It (New York: Clarendon Press, 1994), p. 49. Andrew Clapham, Human Rights Obligations of Non-state Actors (Oxford University Press, 2006), p. 77. Ibid., pp. 689. See also D. P. OConnell, International Law, 2nd edn (London: Stevens and sons, 1970), vol. 2, p. 81: Capacity implies personality, but always it is capacity to do those particular acts. Therefore personality as a term is only shorthand for the proposition that an entity is endowed by international law with legal capacity. But entity A may have capacity to performs acts X and Y, but not act Z, entity B to perform acts Y and Z but not act X, and entity C to perform all three. Personality is not, therefore, a synonym for capacity to perform acts X, Y and Z; it is an index, not of capacity per se, but of specic and different capacities. For other authors suggesting a departure from the concept of international personality to understand the obligations of corporations, see also F. van Hoof, International Human Rights Obligations for Companies and Domestic Courts: An Unlikely Combination? in M. Castermans-Holleman, F. van Hoof and J. Smith (eds.), The Role of the Nation-State in the 21st Century: Human Rights, International Organisations and Foreign Policy. Essays in Honour of Peter Baehr (The Hague: Kluwer, 1998), pp. 4759; Vaughn Lowe, Corporations as International Actors and International Law Makers (2004) 14 Italian Ybk Intl L 2338.

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corporations, insisting on the concept of personality or the capacities of corporations proves to be futile at the current stage of international law. The next crucial question is how PMSCs can be bound by international law without reference to their capacities to have direct rights and obligations. One can identify ve different possible avenues by which PMSCs could be bound to respect international law: via the regime of state responsibility, reliance upon the existing categories of the relevant branches of international law, the notion of corporate complicity, self-regulation initiatives undertaken by PMSCs and, nally, by way of domestic regulation.

2.1 The regime of state responsibility and attribution The regime of state responsibility and its ancillary question of attribution constitute a rst option for binding PMSCs by the norms of international law. As previously analysed in Chapter 2 above, the regime of state responsibility implies that when a PMSCs conduct can be attributed to the hiring state, the state might incur international responsibility as provided by the 2001 International Law Commission (ILC) Articles on State Responsibility (ASR). Another question remains nonetheless to be determined: in cases where the wrongful conduct of a PMSC is attributable to the hiring state, thus rendering the state internationally responsible, can one consider that the PMSC is itself vested of the states international law obligations by virtue of its attributability to the state? In other words, do the secondary rules on state responsibility have an impact on the scope of the addressees of the primary rules of international law? The ASR legitimately constitute the starting point for any issue related to attribution to states. However, the ASR and their commentaries seem to answer the present question in the negative: the two sets of primary and secondary rules are disconnected from each other. Does this necessarily mean that state responsibility does not imply that the same international obligations are vested upon the person whose conduct is attributable to the state? The ILC does not explicitly answer this question, but a negative answer can be logically deduced. The Commentaries state:
As a normative operation, attribution must be clearly distinguished from the characterization of conduct as internationally wrongful. To show that conduct is attributable to the State says nothing, as such, about the legality or otherwise of that conduct, and the rules of attribution should not be formulated in terms which imply otherwise.62
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Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries, in Report of the International Law Commission on the Work of its Fifty-third

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Thus, the analysis of the imputability of conduct must be completely divorced from the discussion of legality. Who has what obligations is however an issue of legality and not of attribution. That conclusion is also warranted by the silence of the two Rapporteurs, Ago and Crawford, with respect to obligations directly binding upon the person whose conduct is directly attributable to the State.63 Further, both Rapporteurs made clear that the conduct of state agents acting in their private capacity is not attributable to the state, even though the same action would have been wrongful if committed in an ofcial capacity.64 One could argue that, as a rule of international law, the exclusion of acts carried out by state ofcials in their private capacity that would otherwise entail a breach of a states international obligations if they were imputable to the state suggests that obligations are not binding per se directly on the individuals even though they are part of the state machinery but only on the state. Beyond the ILC articles and their Commentaries, mere logic would lead one to a negative conclusion, at the risk of resuscitating the nowabandoned argument that it is not the state at fault, but merely the fault of persons, be they legal or natural. Furthermore, the majority of the doctrine seems to share the perspective of the ILC Commentaries. For instance, by relying, inter alia, on the Selmouni case of the European Court of Human Rights (ECtHR), Andr Nollkaemper concludes that State responsibility neither depends on nor implies the legal
Session, UN GAOR, 56th Sess., Supp. no. 10, 43, UN Doc. A/56/10 (2001) (ASR with Commentaries 2001). See specically Commentaries to Arts. 4, 5 or 8 or the Chapeau on Attribution (ASR with Commentaries). In this sense, see ILC, Third Report on State Responsibility, by Roberto Ago, Special Rapporteur: The Internationally Wrongful Act of the State, Source of International Responsibility, UN Doc. A/CN.4/246 and Add.13, reproduced in (1971) 2(1) YBILC 26270, paras. 18696 (on de facto organs) and further comments on Arts. 4 and 5 of the Report (Third Report on State Responsibility). See also ILC, Fourth Report on State Responsibility, by Roberto Ago, Special Rapporteur: The Internationally Wrongful Act of the State, Source of International Responsibility (Continued), UN Doc. A/ CN.4/264 and Add. 1, in (1972) 2 YBILC 95126 (Fourth Report on State Responsibility). ASR with Commentaries 2001, p. 42, para. 13; ILC, Third Report on State Responsibility, pp. 2413, paras. 12934. Similarly, in discussing responsibility of a state for the acts of private parties on the basis of a failure to exercise due diligence, the Commentary states that: For example, a receiving State is not responsible, as such, for the acts of private individuals in seizing an embassy, but it will be responsible if it fails to take all the necessary steps to protect the embassy from seizure, or to regain control over it. In this respect there is often a close link between the basis of attribution and the particular obligation to have been breached, even though the two elements are analytically distinct. ASR with Commentaries 2001, p. 39, para. 4.

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responsibility of individuals,65 as [r]esponsibility of individuals is a matter of national, not international law.66 Nonetheless, most international crimes seem to constitute the exception to this assertion by requiring a de jure dependence of the individuals responsibility on that of the State.67 The prime example of the interconnection between individual and state responsibility is the crime of aggression, which constitutes par excellence a crime, imputable as such to a state.68 Its recent individual criminalization with the adoption, in June 2010, of Article 8 bis of the 1998 Rome Statute does not change this observation.69 The perpetrator is dened as a person in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression.70 The crime remains characterized by the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State and determined on the basis of the UN General Assembly Resolution 3314(XXIX).71 Due to their collective and massive/widespread dimensions, crimes against humanity and genocide might also constitute instances of state responsibility and individual responsibility collusion.72 Though included within the list of international crimes, war crimes do not follow the logic of dependence on both bases of responsibility.73 In this sense, it is the very nature of IHL that dictates the separation of state responsibility from individual responsibility. Indeed, the fact that individual responsibility has been recognized since the post-Second World
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A. Nollkaemper, Concurrence between Individual Responsibility and State Responsibility in International Law (2003) 52 ICLQ 616. As for the Selmouni case, see ibid., p. 617. Ibid., p. 617. P. M. Dupuy, International Criminal Responsibility of the Individual and International Responsibility of the State in A. Cassese, P. Gaeta and J. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), p. 1088. Ibid. Review Conference, Res. RC/Res. 6: The Crime of Aggression, adopted at the 13th plenary meeting, 11 June 2010. Ibid., Annex II: Amendments to the Elements of Crimes, Elements, para. 2. See also Annex I: Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression, Art. 8 bis, para. 1. Ibid., Annex I: Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression, Art. 8 bis, para. 2. Dupuy, International Criminal Responsibility, pp. 108990. Both crimes do not require as such state involvement, but their massive and widespread nature coupled with a high degree of collective organization imply that in most cases they will be carried out by a state, or at least a state-like entity. Ibid., pp. 10901.

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War trials ascertains that IHL obligations are incumbent upon both states and individuals on a complementary but also dissociated basis. In sum, if a state agent violates international law, his/her basis of responsibility will not be deduced from his/her state obligations, but will ow from the direct applicability of IHL obligations incumbent upon him/her.74 The same holds true for PMSCs committing war crimes. If PMSCs conduct were to be attributable to the state, concurrent bases of responsibility would be triggered, namely that of the state and that of the corporation. As we will discuss later, while corporate responsibility is not yet recognized in international courts, domestic laws are increasingly lling the international regulatory gap by considering corporations as potential perpetrators of war crimes.75 Nevertheless it remains to be determined whether, more generally, the IHL and IHRL obligations of states may be incumbent upon PMSCs if the latter are attributable to their hiring state. In light of the above, one would conclude that, with the exception of the crime of aggression and, in most cases, crimes against humanity and genocide, the secondary rules of state responsibility do not affect the addressees scope of international obligations. However, Steven Ratner reaches another conclusion on the matter. Beyond considerations as to the binding character of IHRL on corporations,76 Ratner takes the view that the extant rules of state responsibility that make the state liable for the acts of some private actors can provide for the responsibility of those private actors as well.77 In other words, because the state is responsible for certain acts of private actors, those actors can also be held responsible for that same conduct under international law.78 The author further presents cases brought
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On the direct applicability of IHL upon individuals, see section B in this chapter. See also the following case decided on the basis of the Alien Tort Claims Act, which held that for a person to be liable under the Act, the petitioner must show that the obligation attached to the individual under international law: Kadic v. Karadzi, 70 F 3d 232 (2d Cir 1995). In this case the court stated: We do not agree that the law of nations, as understood in the modern era, connes its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a State or only as private individuals. Ibid., at 239. The court then studies the applicability of each norm in question to individuals (i.e. genocide, war crimes and torture). See section A. 2.2.5 on domestic regulation, and most notably the Aliens Tort Statute of the United States and the Canadian Crimes against Humanity and War Crimes Act which, by implementing the 1998 Rome Statute, broaden the scope of potential perpetrator of international crimes by including moral persons. See also Ch. 5, section D below. See section A 2.2. 78 Ratner, Corporations and Human Rights, p. 497. Ibid.

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before US domestic courts on the basis of the Alien Tort Statute (ATS), also known as the Alien Tort Claims Act (ATCA), indeed supporting the idea that, when a corporations conduct is attributable to the state, the corporation is liable as the state for violations of human rights.79 Although US courts have determined a relatively high threshold of attribution standards,80 Ratner identies three types of relations between the state and the corporation that will warrant the extension of the states human rights obligations to corporations, namely corporations as Governmental agents, corporate complicity and corporations as commanders.81 While the two last sets of relationships will be the object of further consideration in the part on corporate complicity,82 the corporation as a government agent deserves some further consideration. Considering corporations as autonomous entities distinct from the state,83 Ratner identies three situations where a corporation could be deemed an agent of the state and thus liable for the same human rights violations: when the human rights violations were instructed by the government to the corporation, when the corporation exercise[s] governmental authority as empowered by the law of the state, or in the absence or default of ofcial authorities.84 Those three situations have been recognized by the ILC as a basis for attribution of conduct to a state;85 as such, Ratners argument implicitly considers that the secondary rules of attribution do affect the
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Ibid., p. 498. In this regard, Ratner refers to the Unocal case discussed below. Sufce it to mention that the court for the Ninth Circuit held that a plaintiff must prove that the private individuals exercised control over the government ofcials decision to commit the section 1983 violation. Ibid., n. 223. For corporations as government agents, see ibid., pp. 499500; for corporations as complicit with governments, see ibid., pp. 5004; for corporations as commanders, see ibid., pp. 5046. It is noteworthy here that what Ratner denes as corporations as commanders equates to what we envisaged hereinafter as indirect complicity (with the Unocal case) or silent complicity following the categorization of the corporate complicity notion as developed by Clapham and Jerbi: A. Clapham and S. Jerbi, Categories of Corporate Complicity in Human Rights Abuses (2001) 24 Hastings Intl & Comparative L Rev 34249. Thus Ratner does not envisage the case of corporations as de jure organs of the state as could be the case of PMSCs formally integrated into state armed forces, for instance. Nonetheless, in such cases, Ratners logic would also apply. Ratner, Corporations and Human Rights, pp. 499500. State instructions were dened by Ratner as the least common denominator of the differing jurisprudence (i.e. the ICJ in the Nicaragua case, the ICTY in the Tadi case and the ECtHR in the Loizidou case) to determine the necessary state control over private actors with the view to assess attribution to the state. Ibid., p. 499. Arts. 5, 8 and 9 ASR with Commentaries 2001.

312 legal means through which pmscs are bound by ihl

scope of the addressees of the primary rules. If that logic were to be transposed to PMSCs hired by states, those corporations would be bound by the same human rights obligations as their hiring states, and thus liable to the same extent in case of violation.86 Contrary to the draconian divorce of state responsibility from individual responsibility, here the two bases of responsibility collude to the extent that one can trigger the other. Be that as it may, the strongest argument for indirectly, via domestic law binding PMSCs by the rules of international law through the theory of state responsibility remains the obligation to exercise due diligence. As explained in Chapter 2 above,87 the fact that a states international responsibility can be engaged with regard to violations committed by private persons means that the responsibility of a state must be triggered to the same extent to ensure that persons acting on its behalf (even if not formally attributable to it) respect its international obligations.88 This is even the more true in the realm of IHL as common Article 1 of the 1949 Geneva Conventions specically provides for a duty to respect and ensure respect of the conventions.89 From that logic follows the duty of states to regulate the behaviour of those private individuals, and thus the activities of PMSCs when hired by states. We have outlined above many of the various ways that duty can be met, including by the adoption of domestic regulations90 or a treaty, which would specify IHL and international human rights obligations binding PMSCs. From a purely logical perspective, however, this does not yet prove that private actors are also bound in the absence of such laws or treaties. Finally, it is worth underlining that the above considerations apply only for PMSCs hired by states. In situations where PMSCs clients are not themselves incontestably subjects of international law, and more specically of IHL, the problems of attribution in and of themselves are even more complicated. Therefore a link on this basis is unlikely to be

86

In the same vein, see Baez et al., Multinational Enterprises and Human Rights, p. 254: Where an MNE [multinational enterprise] becomes involved in transporting troops and providing military equipment, for example, it may well cross the line from private party to state actor. One reason for imposing human rights duties on states is the very fact that they have access to such potentially oppressive military power. When MNEs implicate themselves in that power, it seems only appropriate that they should be subject to the same duties. 88 See Ch. 2, section E. 4 above. Ratner, Corporations and Human Rights, p. 470. Emphasis added. See J. 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. 247. See below section A 2.5.

87 89

90

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tenable. That being said, in any case the criminalized provisions of IHL i.e. war crimes will be binding on PMSCs and their staff members.

2.2 Reliance upon existing categories of the relevant applicable branches of international law A second avenue for binding PMSCs by international law consists of referring to existing categories of the relevant applicable branches of international law. This may well constitute the most important option given the reach of international law branches able to cover the activities of PMSCs that is to say, IHL and IHRL.
2.2.1 IHL IHL can cover and be binding on PMSCs as corporations in two main scenarios. First, if a PMSC hired by a state is incorporated into the state armed forces so as to be considered part thereof,91 it will be bound by IHL rules to the same extent as armed forces are. Indeed, though the 1949 Geneva Conventions and their Additional Protocols are addressed to states in the rst place, they also bind their armed forces as the latter constitute organs of the state par excellence.92 To claim otherwise would alienate the whole foundation of IHL: one cannot legitimately reconcile the idea of a specic law regulating the behaviour of belligerents in armed conicts while not binding the principal addressees armed forces by its rules. Armed forces are composed of combatants. Article 44(2) of Protocol I explicitly prescribes that combatants are obliged to comply with the rules of international law applicable in armed conict not only those that are criminalized. That IHL obligations are incumbent upon armed forces is also indirectly afrmed by the contracting parties duty to disseminate the Geneva Conventions and Additional Protocol I inter alia to their armed forces.93 If a PMSC were not formally incorporated into state armed forces, its members could in some cases be considered as civilians accompanying the armed forces and entitled to prisoner-of-war status in case of capture, as provided by Article 4(A)(4) GC III.94 For those who are not members of the armed forces, they can be bound by IHL just as any other
91

92 93

94

See Ch. 5, section A 1 below; and see ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009), p. 39 (ICRC, Interpretive Guidance). Art. 4 ASR with Commentaries 2001. See Arts. 47, 48, 127 and 144 of the 1949 Geneva Conventions; Arts. 83 and 87(2) AP I and Art. 19 AP II though the latter makes no mention of state armed forces specically. See in this sense ICRC, Interpretive Guidance, pp. 389. See Ch. 5, section A 2.1 below.

314 legal means through which pmscs are bound by ihl

individual. Below, we will discuss the obligation of individuals to respect IHL due to its direct applicability on individuals.95 Secondly, in the case of a PMSC falling within the denition of an organized armed group,96 the PMSC will be bound by the rules of IHL qua organized armed group. It is widely recognized that IHL binds armed groups. In a non-international armed conict, Article 3 common to the 1949 Geneva Conventions requires each Party to the conict to apply its provisions, implying that common Article 3 binds armed groups.97 While the mention party to the conict was intentionally omitted in the text of Additional Protocol II,98 the intent of states participating in the 19747 Diplomatic Conference pointed nonetheless toward a recognition of the binding character of the protocol on armed groups.99 Further doctrinal interpretations, statements and practice reafrm the duty of armed groups to respect IHL as enshrined in the protocol.100 Furthermore, if a PMSC is
95 96

97

98

99 100

See below section B 1. A PMSC could be considered as an organized armed group falling within the ambit of Art. 3 common of the 1949 Geneva Conventions if: (1) it is organized to a certain extent and (2) the conict in which it is implicated is considered protracted, that is to say of a certain intensity. In this sense, see Prosecutor v. Tadi (Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-941 (2 October 1995), at para. 70 (Tadi (AC Decision on Jurisdiction 1995)). On the interpretation of protracted armed violence see Prosecutor v. Ramush Haradinaj and ors. (Trial Chamber, Judgment) IT-0484-T (3 April 2008), at para. 49). To be recognized as an organized armed group under the terms of Art. 1(1) AP II, the PMSC will have to full more stringent requirements: (1) be under responsible command; (2) have a certain territorial control; (3) be able to conduct sustained and concerted military operations; (4) have the ability to implement the protocol. See the following illustrative authoritative doctrine recognizing the binding character of common Art. 3 on armed groups: Pictet, Commentary GC I, pp. 512; Antonio Cassese, The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conicts (1981) 30 ICLQ 424; D. Momtaz, Le Droit international humanitaire applicable aux conits arms non internationaux (1991) 292 Recueil des Cours de lAcadmie de Droit International 70; Clapham, Human Rights Obligations of Non-state Actors, pp. 2759; Theodor Meron, Human Rights in Internal Strife: Their International Protection (Cambridge: Grotius, 1987); L. C. Green, Essays on the Modern Law of War (Dobbs Ferry: Transnational Publishers Inc., 1985), pp. 5960; L. Moir, The Law of Internal Armed Conict (Cambridge University Press, 2002), pp. 52 ff.; S. Sivakumaran, Binding Armed Opposition Groups (2006) 55 ICLQ 369. See also M. Sassli, Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law (2010) 1 J Il Humanitarian Legal Studies 551, 1214. This oversight was made on purpose as states were afraid that mention of the term parties to the conict would confer upon armed groups an international recognition and legal standing. In this sense, see Cassese, Status of Rebels, pp. 4212. See Momtaz, Le Droit international humanitaire, p. 71. Concerning doctrinal interpretations, there is a consensual recognition as to the binding character of Additional Protocol II upon armed groups, but scholars have relied upon different legal constructions to explain why it is so (e.g. reliance upon state responsibility

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not an armed group, but its staff ghts for an armed group, the PMSC employees become bound by IHL as members of the armed group, as long as they carry out continuous combat functions.101 In the case of a PMSC considered to be an armed group ghting within the framework of an international armed conict,102 IHL of international armed conicts binds the latter to the extent of its applicability, discussed below, for any conduct related to the armed conict (beyond the behaviour of state armed forces).103 In sum, if the PMSC can be considered as part of the armed forces or as an armed group, it will be bound to respect the rules of IHL as any other party (or armed forces of a party) to the conict. International criminal law further conrms the binding nature of IHL upon state armed forces and armed groups. Though the notion of corporate responsibility is not yet recognized and embraced by the various international criminal courts,104 the individual criminal responsibility of PMSC staff members may be engaged in case of a violation of

101

102

103

104

in case of successful insurrection, upon the customary nature of non-international armed conict international humanitarian law rules, upon the doctrine of legislative jurisdiction). For an overview of those theories, see: Moir, The Law of Internal Armed Conict, pp. 52 ff.; Cassese, Status of Rebels; R. R. Baxter, Ius in Bello Interno: The Present and Future Law in J. N. Moore (ed.), Law and Civil War in the Modern World (Baltimore: Johns Hopkins University Press, 1974). Concerning practice and statements, see notably: ILC, The Application of International Humanitarian Law and Fundamental Human Rights in Armed Conict in which Non State Entities Are Parties, Berlin Resolution of 25 August 1999; the various reports of the UN Secretary-General to the Security Council on the protection of civilians in armed conict ((8 September 1999) UN Doc. S/1999/957, at para. 36(2); (30 March 2001) UN Doc. S/2001/331, at paras. 7 and 489; and (20 May 2009) UN Doc. S/2000/277, at paras. 3940). Thus, for such time as private contractors assume a continuous combat function for an organized armed group belonging to a non-State party, they become members of that group. Theoretically, private military companies could even become independent nonState parties to a non-international armed conict. ICRC, Interpretive Guidance, pp. 3940. In this sense, see Ch. 4, section A 1.2.1 below. This situation can exist either in the case of a PMSC hired by an armed group which ghts in the context of an existing international armed conict, or when the PMSC itself constitutes an independent armed group in an existing international armed conict. In this sense see section B of the present chapter concerning the binding character of IHL upon any individual. Jurisdiction over legal persons was not envisioned by the statutes of the two UN ad hoc tribunals and not included in the 1998 Rome Statute, despite the French proposal. See A. M. McLoughlin, International Trend of Multinational Corporate Accountability for Human Rights Abuses and the Role of the United States (2007) 33 Ohio Northern U L Rev 1589; A. Ramasastry, Corporate Complicity: From Nuremberg to Rangoon: An Examination of Forced Labour Cases and their Impact on the Liability of Multinational Corporations (2002) 20 Berkeley J Intl L 1556. See Ch. 5, section C 1 below.

316 legal means through which pmscs are bound by ihl

criminalized rules of IHL that is to say, war crimes.105 States are increasingly recognizing that they have jurisdiction over corporations for international crimes.106 2.2.2 IHRL The traditional perspective relies on the idea that international human rights treaties lay down state obligations, as their very purpose is to protect individuals rights against oppressive states.107 Thus, even though individuals are recognized as rights-holders, this recognition is circumscribed by the fact that only states are dutybearers.108 Taking into account the protean nature of those human rights obligations,109 states human rights duties are usually conceived along a tripartite typology: the obligation to respect, protect and full.110 Thus, owing from this triptych, two main dutyrights relationships were identied: rst, a vertical relationship based on the duty to respect, where states have an obligation not to interfere with individuals human rights; secondly, as previously discussed,111 a diagonal relationship was also envisioned so as to recognize indirect obligations binding non-state actors (i.e. due diligence). However, in the case of diagonal obligations, states retain the monopoly as duty-bearers: they have the obligation to protect human rights of non-state actors against action of a third-party non-state actor. The latter do not have any direct human rights obligations. These two types of dutyrights relationships represent the traditional way of conceiving human rights obligations. However, in the face of the increasing importance and power of non-state actors such as
105 106

107 108

109

110

111

See below section B.1.2.1 of the present chapter. This is for instance the case of the United States with the Alien Tort Claims Act (28 U.S.C. 1350) and Canada with its 2000 Crimes against Humanity and War Crimes Act (S.C. 2000, c. 24) implementing the 1998 Rome Statute. See below section A 2.5 on domestic regulation. Hessbruegge, Human Rights Violations, pp. 256. C. Jochnick, Confronting the Impunity of Non-state Actors: New Fields for the Promotion of Human Rights (1999) 21 Human Rights Q 5679, 589. Human rights obligations can take the form either of direct or indirect obligations or of obligations of conduct or obligations of result as presented in Ch. 2, section E 1 above. This typology was established by Asbjrn Eide, Special Rapporteur on the Right to Food at the former UN Human Rights Commission: see UN Doc. E/Cn.4/Sub.2/1987/23 (7 July 1982), para. 66. This typology was itself inspired by the categorization established by Henry Shue in 1980: see H. Shue, Basic Rights. Subsistence, Afuence, and US Foreign Policy (Princeton University Press, 1980). For a more detailed account of the tripartite typology, see Jgers, Corporate Human Rights Obligations, pp. 759. See Ch. 2, section E 2.2 above on due diligence in human rights law.

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corporations,112 scholars have ventured beyond this state-centered approach so as to question whether human rights obligations could also acquire a horizontal effect that is to say, to create obligations for nonstate actors between them. An afrmative answer would thus have the consequence of binding PMSCs by IHRL duties almost to the same extent as states.113 This is the stand taken by the UN Sub-Commission on the Promotion and Protection of Human Rights. In its 2003 Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with regard to Human Rights, the Sub-Commission indeed recognizes human rights obligations of transnational corporations, alongside the primary responsibility of states.114 Along the same line, the Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises proposed a Framework for Business and Human Rights welcomed by the UN Human Rights Council which relies upon the triptych of the State duty to protect, the corporate responsibility to respect and the access to remedies.115
112 113

114

115

See Ratner, Corporations and Human Rights, pp. 461 ff. As will be presented hereafter, although a horizontal effect of human rights obligations can be conceived, non-State actors, such as PMSCs, will not be bound by the whole corpus of human rights obligations incumbent upon states as some are inherently linked to the state organization. Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (26 August 2003), Part. A General Obligations, para. 1 (Responsibilities of Transnational Corporations and Other Business Enterprises). Because of this primary responsibility resting on states, Emmanuel Decaux explains situations to be addressed by the Norms as follows: Ce sont ces situations extrmes de dliquescence de lEtat de droit par faiblesse, faillite ou corruption qui sont dabord vises par les normes, et non la situation dEtats polics, garant de la scurit juridique pour les entreprises comme pour les individus: La Responsabilit des socits transnationales, p. 791. For a more detailed account on the Norms, see e.g. J. Gelfand, The Lack of Enforcement in the United Nations Draft Norms: Benet or Disadvantage? in O. de Schutter (ed.), Transnational Corporations and Human Rights (Oxford: Hart, 2006), pp. 31333; D. Weissbrodt and M. Kruger, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (2003) 97 AJIL 901. UN HRC, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights Including the Right to Development. Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie, UN Doc. A/HRC/8/5 (7 April 2008), esp. para. 9 (Ruggie Report 2008). See also: UN HRC, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights Including the

318 legal means through which pmscs are bound by ihl

Scholars supporting the horizontal effect of human rights obligations almost unanimously rely on the 1948 Universal Declaration of Human Rights (UDHR) as a starting point.116 In this sense, the preamble of the declaration is considered as an open door to the inclusion of non-state actors within the ambit of human rights obligations, stating, as a common standard of achievement for all peoples and all nations every individual and every organ of society shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance. As to the reach of the preambles afrmation, reference is usually made to Henkins comment that: every individual includes juridical persons. Every individual and every organ of society excludes no one, no company, no market, no cyberspace. The Universal Declaration applies to them all.117 Further, Article 29 of the declaration is deemed to reinforce the preambles assertion by recognizing that [e]very individual has duties to the community.118 Some authors nonetheless question the binding character of the extension of human rights obligations to private actors as the UDHR is not a binding instrument.119 Further, even though the declaration is recognized nowadays as customary international law, some doubts still remain as to the customary law character of its preamble.120
Right to Development. Business and Human Rights: Towards Operationalizing the Protect, Respect and Remedy Framework, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, UN Doc. A/HRC/11/13 (22 April 2009). Universal Declaration of Human Rights, adopted by UNGA Res. 217A (III), 10 December 1948 (UDHR). See the following doctrine relying on the UDHR as a starting point: Decaux, La Responsabilit des socits transnationales, p. 792; Deva, Human Rights Violations by Multinational Corporations, p. 13; Muchlinski, Multinational Enterprises, pp. 51819; J. J. Paust, Human Rights Responsibilities of Private Corporations (2002) 35 Vanderbilt J Transnl L 811; Paul Redmond, Transnational Enterprises and Human Rights: Options for Standard Setting and Compliance (2003) 37 The Intl Lawyer 70. Louis Henkin, The Universal Declaration at 50 and the Challenge of Global Markets (1999) 25 Brooklyn J Intl L 25, cited in: Deva, Human Rights Violations by Multinational Corporations, p. 13. See e.g. Paust, Human Rights Responsibilities of Private Corporations, p. 811. See Muchlinski, Multinational Enterprises, p. 519 and Hessbruegge, Human Rights Violations, p. 35 contending more generally that neither of the two passages [of the UDHR] contain a compelling argument for the existence of horizontal human rights obligations. In this sense, see also Vzquez, Direct vs. Indirect Obligations, p. 942. David Kinley and Junko Tadaki went even further, questioning whether Arts. 29 and 30 UDHR had acquired a customary international law status. Kinley and Tadaki, From Talk to Walk, p. 949.

116

117

118 119

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The preambles of all major IHRL instruments refer to private obligations, and most provide for the duty of any group or person not to destroy the rights enshrined therein. This has been identied by scholars as further evidence of private duties. 121 If one acknowledges that those preambles and provisions do indeed provide for human rights duties for non-state actors, further consideration still has to be given to the scope of those private duties in particular, to what extent PMSCs are bound by IHRL. In this sense, the 2003 Norms provide that:
Within their respective spheres of activity and inuence, transnational corporations and other business enterprises have the obligation to promote, secure the fullment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including the rights and interests of indigenous peoples and other vulnerable groups.122

This assertion of human rights duties of transnational corporations warrants two interrelated remarks as to the protection or jurisdictional scope and with regard to the binding level of those obligations. As previously presented in Chapter 2 above, human rights obligations are usually considered applicable within states jurisdictions, and even sometimes extraterritorially.123 As jurisdiction is traditionally seen as a state prerogative closely related to territory, the jurisdictional or protective scope of transnational corporations has to be dened otherwise:
For TNEs [transnational enterprises], however, a territorial scope for determining the universe of relevant rightholders will not work insofar

121

122

123

See e.g. Paust, Human Rights Responsibilities of Private Corporations, 81115. For the preambles of IHRL instruments, see the preamble of the ICCPR (the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant); the ICESCR, adopting the same language as the ICCPR preamble; the AChHPR (Considering that the enjoyment of rights and freedoms also implied the performance of duties on the part of everyone); the American Declaration of the Rights and Duties of Man (The fullment of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity of man); Art. 32(1) ACHR (Every person has responsibilities to his family, his community, and mankind). See also Art. 30 UDHR, Art. 5 ICCPR and ICESCR, Art. 17 ECHR and Art. 29(a) ACHR. See also Chapter Two of the American Declaration of the Rights and Duties of Man providing for the different duties incumbent upon the society, individuals and states. Sub-Commission on the Promotion and Protection of Human Rights, Responsibilities of Transnational Corporations and Other Business Enterprises, Part A General Obligations, para. 1. See Ch. 2 section E 2.2 above.

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as businesses do not exercise such a geographically xed form of jurisdiction. Therefore, the determination of enterprise duties must address the companys links with individuals possessing human rights.124

This companys link with individuals was dened by the Norms to consist of their spheres of activity and inuence. The Commentary on the Norms does not provide any meaningful insight as to the understanding of this jurisdictional scope.125 Doctrinal arguments help to understand the reach of such obligations more precisely. Ratner, for instance, relies on a double nexus: the nexus to affected populations126 and the physical control of a certain area.127 Similarly, Kinley and Tadaki rely on the corporationsright-holders proximity so as to conclude that TNCs would owe the greatest duties to those within their spheres of activity and inuence, such as workers, consumers and members of a local community.128 In its study on the meaning of sphere of inuence, the Special Representative, John Ruggie, discards this notion as a useful one to determine the obligation scope of corporations: while sphere of inuence remains a useful metaphor for companies to think broadly about their human rights responsibilities and opportunities beyond the workplace, it is of limited utility in clarifying the specic parameters of their responsibility to respect human rights.129 Ruggie
124 125

126

127

128

129

Ratner, Corporations and Human Rights, pp. 5067. It only expresses that transnational corporations obligations apply equally to activities occurring in the home country or territory of the transnational corporation or other business enterprise, and in any country in which the business is engaged in activities. Sub-Commission on the Promotion and Protection of Human Rights, Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/38/Rev.2 (2003), Part A, para. 1(a). The nexus to affected populations is illustrated by Ratner as concentric circles emanating from the enterprise, with spheres enlarging from employees to their families, to the citizens of a given locality otherwise affected by their operation , and eventually to an entire country. Ratner, Corporations and Human Rights, p. 508. Ratner argues that the nexus can be determined by the physical control of a certain area exercised by the corporation, so that the enterprise operates as a quasi-state whose special obligations to those under its control are accepted in both moral philosophy and international law doctrine. Ibid., p. 509. Kinley and Tadaki, From Talk to Walk, pp. 9634. The authors also envision that physical control has a possible nexus, as does Ratner, Corporations and Human Rights, p. 965. UN HRC, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development. Clarifying the Concepts of Sphere of Inuence and Complicity, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational

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favours rather a pragmatic, fact-based approach based on three sets of factors that should be taken into consideration by companies in fullling their obligation of due diligence as regards human rights: (i) the country contexts in which their business activities take place; (ii) the human rights impacts their own initiative may have within that context; and (iii) their potential for contribut[ing] to abuse through the relationships connected to their activities, such as with business partners, suppliers, State agencies, and other non-State actors.130 The scope of protection in Ruggies logic is therefore not rigid, but uctuates so as to depend on circumstances.131 Implicitly related to the scope of protection is the degree of obligations incumbent upon transnational corporations. Careful reading of the 2003 Norms reveals the strong inuence of the tripartite typology of obligations discussed above, i.e. the duty to respect, protect and full. Those obligations will be contingent on the proximity of the corporation to the right-holders on the basis of a positive correlation: as the proximity of the corporation to individuals lessens, the duties of the corporation toward those individuals lessen as well.132 Transposed to transnational corporations and in keeping pace with the positive proximity correlation,133 such duties will imply: 1. Duty to respect: negative obligation of non-interference with individuals rights and prohibition of complicity in human rights abuses committed in partnership.134 2. Duty to protect: positive obligation to take measures aimed at preventing human rights violations by third-persons. The binding degree of this duty will vary depending on the inuence that the corporation

130 132

133

134

Corporations and Other Business Enterprises, John Ruggie, UN Doc. A/HRC/8/16 (15 May 2008), para. 18. 131 Ibid., para. 19. Ibid. Ratner, Corporations and Human Rights, p. 508. See also Kinley and Tadaki, From Talk to Walk, pp. 9634. The obligation to full and protect, being the most demanding, will apply only in cases of close relationship between the corporation and the rights-holders. The obligation to respect, on the contrary, will apply even in the case of a loose connection between the company and individuals. See Jgers, Corporate Human Rights Obligations, pp. 802. Kinley and Tadaki dene this duty to respect as a minimum duty to do no harm to all those with whom TNCs have contact. Kinley and Tadaki, From Talk to Walk, p. 963. Concerning the prohibition to become complicit of human rights abuses, refer to section 2.3 below on corporate complicity.

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exerts over the third-party (e.g. states, (sub)contractors, joint venture partners, suppliers, licensees and other business partners).135 3. Duty to full: as the most controversial obligation, the duty to fulll will mostly consist of ensuring an individual access to those resources needed for survival, especially in failed-state situations or when the corporation exercises some state prerogatives.136 In the light of the above, one could thus conclude that PMSCs would be bound by international human rights obligations depending on their proximity to individuals. This proximity will be dened by the very functions PMSCs will have to carry out, as their tasks will determine their sphere of activity and inuence. For instance, a PMSC participating in hostilities will have greater obligations towards a higher number of individuals due to its higher level of control in carrying out what is usually conceived as a state prerogative and larger sphere of activity and inuence than a PMSC providing for military logistical support to the state armed forces. However, laudable as it can be to extend the reach of the triptych obligations to transnational corporations, the obligations to protect and full remain controversial.137 Moreover, claims that such duties would apply are deemed to extend corporations obligations beyond the current state of international law138 and corporate ability:
to extend their duty away from a dictum of doing no harm either on their own or through complicity with government toward one of proactive steps to promote human rights outside their sphere of inuence seems inconsistent with the reality of the corporate enterprise.139
135

136 138

139

See Jgers, Corporate Human Rights Obligations, p. 83. See also section 2.3 below, on corporate complicity, esp. as to indirect or silent complicity and Kinley and Tadaki, From Talk to Walk, p. 964 and the prevention duty. 137 See Jgers, ibid., pp. 845. Ibid., pp. 825. In sum, the Norms go considerably further than existing international law in imposing human rights obligations on private corporations. Vzquez, Direct vs. Indirect Obligations, p. 947. See also de Brabandere, Transnational Corporations, p. 74. It is notable that in the 2008 Report, Ruggie does not include the duty to full as an obligation of companies, but relies on the obligation to respect, the duty of due diligence and the notion of complicity in human rights violation, the latter two being reminiscent of the duty to protect. Ruggie Report 2008, paras. 545, 654 and 7381 respectively. Ratner, Corporations and Human Rights, p. 518. Ratner recognizes the minimum corporate duty to respect, but underlines that: [o]ther derivative duties might be appropriate where the nexus between the enterprise and the individual is particularly close. But to go further than this position would effectively ignore the functional differences between states and businesses; it would thereby ask too much of the corporation, especially

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Furthermore, it is signicant that not all human rights obligations identied for states will apply in the case of corporations.140 Indeed, even those scholars militating for corporate responsibility acknowledge that some obligations rest exclusively on states as they concern states very prerogatives.141 Nonetheless, those state obligations do not exclude corporate responsibility in case of complicity.142 One can roughly conclude that corporations will usually be bound by human rights rules that can be directly infringed upon by them.143 In the case of PMSCs, the scope of obligations can thus go even further than other transnational companies, as PMSC activities often are close to the heart of state functions. Be that as it may, some sort of consensus exists as to the minimum applicability to corporations of the obligation to respect human rights. While the material scope of human rights obligations falling within this duty to respect still remains unclear, it is without doubt that it encompasses at the very least those human rights violations labelled international crimes, such as genocide and crimes against humanity.144

2.3 The doctrine of corporate complicity As an emerging doctrine, the concept of corporate complicity might well constitute another promising avenue for binding PMSCs by the rules of international law. The doctrine of corporate complicity has been developed by scholars primarily in response to the fact that multinational corporations have rarely been the direct perpetrators of international law violations, but rather accomplices to the commission of those acts by
at this stage of the international legal process, when the broad notion of business duties in the human rights area is just emerging. While corporations may be considered organs of society, they are specialized economic organs, not democratic public interest institutions. As such, their responsibilities cannot and should not simply mirror the duties of States. Accordingly, the Special Representative has focused on identifying the distinctive responsibilities of companies in relation to human rights. Ruggie Report 2008, para. 53. There are, however, certain international human rights duties which, no matter what perspective is adopted, are inappropriate, if not practically impossible, to place on TNCs. Quoting the right to asylum, to a nationality or rights related to criminal defendants, among others, the authors conclude: These rights fall squarely within the proper province of states responsibilities for maintaining public order and ensuring a fair trial. Kinley and Tadaki, From Talk to Walk, p. 967. In the same vein, see also Muchlinski, Multinational Enterprises, p. 518. 143 Ratner, Corporations and Human Rights, pp. 51112. Ibid., p. 511. We consider here war crimes as violations of IHL. See Baez et al., Multinational Enterprises and Human Rights, p. 227; de Brabandere, Transnational Corporations, pp. 856.

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aiding and abetting a state.145 Considering multinational corporations solely as direct perpetrators made it too easy for them to escape liability. In this sense, the doctrine of complicity as a potential avenue for holding multinational corporations accountable for human rights violations aims at strengthening their responsibility within international law. Whilst this underlying rationale undoubtedly has some merits, when it comes to PMSCs the relevance of this doctrine may be nuanced to some extent. Due to the specic tasks that PMSCs may have to carry out in armed conict situations, they have a higher potential to be direct perpetrators of IHL violations than do other types of (multinational) corporations.146 PMSCs are contracted either by the state itself or a private non-state actor (including armed groups) to perform specic duties in the realm of armed conicts. If a PMSC were to have to provide military services in the form of active participation in hostilities, the ensuing IHL violations would be directly imputable to the PMSCs (as an entity or through the direct criminal liability of its staff members),147 rather than on a complicity basis:
in the context of armed conict, the abuse of human rights quickly translates into international criminal responsibility for the individuals concerned. There is no need to formulate elaborate arguments about conspiracy and complicity in the present context; the individuals themselves may be accused of the direct commission of international crimes.148

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See e.g. Clapham and Jerbi, Categories of Corporate Complicity; J. Clough, Punishing the Parent: Corporate Criminal Complicity in Human Rights Abuses (2008) 33 Brook J Intl L esp. 90910; Deva, Human Rights Violations by Multinational Corporations, 8; McLoughlin, Multinational Corporate Accountability; Ramasastry, Corporate Complicity, pp. 1014; I. Tfalo, Overt and Hidden Accomplices: Transnational Corporations Range of Complicity for Human Rights Violations in O. de Schutter (ed.), Transnational Corporations and Human Rights (Oxford: Hart, 2006), pp. 33758; International Commission of Jurists, Corporate Complicity & Legal Accountability, Report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes, 3 vols. (Geneva, 2008). International Commission of Jurists, Corporate Complicity & Legal Accountability, vol. 2, p. 5. See section B of the present chapter on the direct applicability of IHL upon PMSCs staff members qua individuals. Andrew Clapham, Human Rights Obligations of Non-state Actors in Conict Situations (2006) 88 Intl Rev Red Cross 51718. However, Ramasastry sees an added value in prosecuting a multinational corporation rather than its members: While individuals may be prosecuted and removed from a corporation, the corporate entity continues to exist and might continue its misconduct. Prosecuting an individual may not deter the behavior of the corporation as a whole. Conversely, prosecuting an MNC may not deter an individuals

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However, corporate complicity might still be relevant in cases where the PMSC assists, aids or abets the contracting entity in its international law violations by providing the latter with logistical/intelligence support, ammunition, training military forces or by guarding places where IHL violations are committed. This avenue for binding PMSCs might therefore address more specically PMSCs providing services not related with direct participation in hostilities or any direct use of force.149 The idea at the heart of the concept of corporate complicity stems from a recognition of certain human rights obligations incumbent upon multinational companies. Reference is usually made to the UDHR, whose preamble embraces the idea that not only states have duties under IHRL, but that human rights must be respected by all persons, be they natural or legal.150 This was echoed by former UN Secretary-General Ko Annan in the UN Global Compact, launched in 2000: the two rst principles on human rights are themselves inspired by the UDHR.151 Whilst Principle 1 recognizes that [b]usinesses should support and respect the protection of international human rights within their sphere of inuence, Principle 2 embraces the notion of corporate complicity by calling upon companies to make sure they are not complicit in human rights abuses. However, the UN initiative fails to give any further explanation of the notion of corporate complicity.152 More recently, the African Union Convention
criminal conduct. A parallel approach to the problem of MNC complicity is therefore necessary. In addition, sanctioning the MNC with nes, criminal prosecution, and even prohibiting future business operations may provide a greater deterrent for MNCs than the isolated prosecutions of individuals.
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Ramasastry, Corporate Complicity, p. 96. Nonetheless, one can still imagine a PMSC ghting alongside state armed forces. If state armed forces were to engage in violations of IHL, the PMSC, though not directly committing those violations, could still be seen as an accomplice on the basis of its mere assistance to state armed forces. UDHR: International Bill of Human Rights. See above section A 2.2.2. Former UN Secretary-General Ko Annan, launched the idea of such an international initiative at the 1999 World Economic Forum in Davos, Switzerland. The aim was to enhance responsible corporate citizenship in the face of increased globalization. The UN Global Compact contains ten principles that corporations pledge to embrace, support and enact in their business conducts. Those principles range from human rights, labour standards, environmental protection and anti-corruption. It is nonetheless noteworthy that the UN Global Compact is a voluntary non-binding initiative. For more information on the UN Global Compact, refer to the following document, Corporate Citizenship in the World Economy, UN Global Compact, www.unglobalcompact.org/ docs/news_events/8.1/GC_brochure_FINAL.pdf. In her analysis of corporate complicity, Deva identies, among the major limitations of the UN Global Compact, its lack of clear principles and concepts, such as complicity.

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for the Protection and Assistance of Internally Displaced Persons in Africa has also referred to corporate complicity by asking state parties to ensure the accountability of non-State actors concerned, including multinational companies and private military or security companies, for acts of arbitrary displacement or complicity in such acts,153 without, however, dening the application of this nebulous concept. Doctrinal writings and case law particularly of the United States154 have nonetheless shed some light over the understanding of corporations as aiders and abettors of states human rights violations. More particularly, two related questions will be addressed: the scope and limits of the corporate complicity theory and its legal constitutive elements as a mode of liability. The scope of the notion of corporate complicity has been explored by various scholars who have attempted to determine to what extent corporations could be deemed complicit in states violations.155 The limits of the concept must indeed be specied in the face of the growing tendency of the international community to publicly condemn multinational corporations working with or in states known for their disastrous human rights records. Of signicance is the triptych conceived by Clapham and Jerbi156 and subsequently taken up to some extent by various scholars157
Surya Deva, Corporate Complicity in Internet Censorship in China: Who Cares for the Global Compact or the Global Online Freedom Act? (2007) 39 George Washington Intl L Rev 2967. African Union Convention on the Protection and Assistance of Internally Displaced Persons in Africa, Art. 3(1)(h) (emphasis added). On the importance of US domestic decisions over corporate liability and corporate complicity, see van Hoof, International Human Rights Obligations, p. 58; N. M. C. P. Jgers, The Legal Status of the Multinational Corporation Under International Law in M. K. Addo (ed.), Human Rights Standards and the Responsibility of Transnational Corporations (The Hague: Kluwer, 1999), pp. 2679; Paust, Human Rights Responsibilities of Private Corporations, pp. 8029. See Deva quoting Leisinger: in what cases does a company become complicit in human rights abuses through its normal business activities? What kind of proximity to abuses by the state, by terrorists, by individuals, or by other companies would justify the negative judgment of being complicit in human rights violations? These questions are answered in many ways by different stakeholders. Deva, Corporate Complicity in Internet Censorship in China, p. 297, n. 263. Clapham and Jerbi, Categories of Corporate Complicity, pp. 3429. See e.g. Clough, Punishing the Parent, esp. pp. 90910; Deva, Human Rights Violations by Multinational Corporations, p. 8; Ramasastry, Corporate Complicity, pp. 1014; Tfalo, Overt and Hidden Accomplices in O. de Schutter (ed.), Transnational Corporations and Human Rights (Oxford: Hart, 2006), pp. 33758. Acknowledging corporate complicity levels in a slightly different form, see also McLoughlin, Multinational

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and verbatim by a guidance document for the implementation of the UN Global Compact.158 The notion of corporate complicity is subdivided into three levels of complicity, namely direct complicity, indirect or benecial complicity and silent complicity. As it will appear, those three levels can be conceptualized along a corporationviolations proximity spectrum, where, at one extreme of the spectrum, direct complicity will consist of the most obvious form of complicity due to the close proximity of the corporation to the principals violations and, at the other extreme, silent complicity will embrace the notion of corporate complicity in its most loose form, due to a (quasi-)inexistant relationship between the corporation and the violations. Direct corporate complicity consists of cases where a corporation decides to participate through assistance in the commission of human rights abuses and that assistance contributes to the commission of the human rights abuses by another.159 The relationship between international responsibility based on corporate complicity and the concept of aiding and abetting in international criminal law, discussed below, on which it is largely based, is not clear.160 As Clapham and Jerbi emphasize,
Corporate Accountability, pp. 15960: Complicity may occur in several circumstances. First, corporations may be directly responsible for the human rights abuses. Second, corporations may either facilitate or directly participate in abuses alongside government agents. Third, although the corporations may not be involved in abuses themselves, they may benet from the failure of the government to protect human rights. Thus, it seems that McLoughlin leaves out the possibility of silent complicity as a form of corporate complicity. The ICHRP identies the same three levels of complicity as Jerbi and Clapham, but adds a fourth joint venture: A company may be part of a joint venture or similar formal partnership with a government, and might reasonably foresee or subsequently obtains knowledge that the government would probably commit abuses in carrying out its part of the agreement. The company has a common design or purpose with its contractual partner to full the joint venture. It knew or should have known, of the abuses committed by the partner. In most, but not all cases, the joint venture is a perfectly legitimate contract pursuing legal commercial aims. The company willingly enters into such a joint venture with the likely perpetrator, even though it may do nothing actively to assist the perpetrator other than full its side of the joint venture. ICHRP, Beyond Voluntarism, p. 128. The joint venture category is usually conceived as part of the indirect/benecial corporate complicity category as it will appear hereafter. Ministry of Foreign Affairs of Denmark and UNDP Nordic Ofce, Implementing the Global Compact: A Booklet for Inspiration (June 2005), p. 10, www.unglobalcompact. org/docs/news_events/8.1/dk_book_e.pdf. Clapham and Jerbi, Categories of Corporate Complicity, p. 346. On the concept of aiding and abetting in international criminal law, see Ch. 5, section C 2.3 below.

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it does not matter whether the principal perpetrator has been identied and tried for the offence for an accomplice to be found liable.161 Furthermore, what appears central is not the intent of a particular result on the part of the corporation, i.e. human rights violations, but rather knowledge that its assistance is likely to help in the commission of those violations.162 The authors consider intentional participation to be the crucial test for the concept of accomplice liability, as developed by the International Criminal Tribunal for the former Yugoslavia. The test revolves around two requirements: rst, the requirement of intent, which involves awareness of the act of participation coupled with a conscious decision to participate by planning, instigating, ordering, committing, or otherwise aiding and abetting in the commission of a crime, and, secondly, the existence of participation that contributed to the commission of the illegal act.163 Clapham and Jerbi go even further by referring to cases supporting accomplice liability when a person vested with some sort of authority is deemed to assist the perpetrators commission of the crime by his/her mere presence.164 The category of indirect complicity refers to the corporate position vis--vis government violations when the business benets from human rights abuses committed by someone else.165 The company does not participate or assist in the violations, but can be considered complicit through its enjoyment of the results prompted by them. However, the scope of that category of corporate complicity might be too farreaching.166 In this sense, Ramasastry notes that:
The spectrum of what might constitute indirect complicity is broad indeed. On one end of the spectrum, a company may provide economic assistance

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Referring to the Akayesu case. Prosecutor v. Akayesu (Trial Chamber Judgment) ICTR964-T (2 September 1998), at para. 531 (Akayesu (TC Judgment 1998)). Jerbi and Clapham underline that the Tribunal Chamber asserted that all criminal systems provide that an accomplice can be tried in the absence of the conviction of the principal perpetrator. Clapham and Jerbi, Categories of Corporate Complicity, p. 342. Again quoting Akayesu (TC Judgment 1998): As a result, anyone who knowing of anothers criminal purpose, voluntarily aids him or her in it, can be convicted of complicity even though he regretted the outcome of the offence. Clapham and Jerbi, Categories of Corporate Complicity, p. 343. Ibid., pp. 3434 quoting the Tadi case: Prosecutor v. Tadi (Trial Chamber) IT-941-T (7 May 1997) (Tadi (TC)). Ibid., pp. 3445 referring to the Synagogue and Pig-cart parade cases. Ibid., p. 346 (emphasis provided). See Muchlinski, Multinational Enterprises, p. 528: According to Sarah Joseph, mere benet from a states human rights abuses should not attract ATCA liability, as it lacks a clear causal connection between the activities of the company and the violation in question.

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to a repressive government in the form of revenues gained as part of a joint venture. The MNC [multinational corporation] may know that the host government is engaging in human rights violations but the links between its investment and the human rights violations may be more attenuated.167

In order to circumscribe indirect complicit liability, Ramasastry advances a list of factors susceptible to help determine such complicity. Those indicators include time or duration of the investment and partnership; the type of nancing that is provided by the MNC to the government; the nature of the business relationship and whether the MNC continues to do business with the government once it knows that there may be human rights abuses associated with its investment.168 Finally, at the very end of this corporationviolations proximity spectrum lies silent complicity, when a company turns a blind eye to the host states human rights violations. This category is dened by Clapham and Jerbi in the following terms:
The notion of silent complicity reects the expectation on companies that they raise systematic or continuous human rights abuses with the appropriate authorities. Indeed, it reects the growing acceptance within companies that there is something culpable about failing to exercise inuence in such circumstances.169

The case of silent complicity is thus illustrative of the international tendency to broaden the scope of corporate responsibility as much as possible. But while silent complicity doubtless confers some sort of moral responsibility upon multinational corporations, this far-reaching level of complicity does not seem to reect the state of responsibility understood in its legal sense, i.e. de lege lata. That assertion is somehow reected in Clapham and Jerbis optimistic perception of silent corporate complicity:
Whether or not such silent complicity would give rise to a nding of a breach of legal obligation against a company in a court of law, it has become increasingly clear that the moral dimension of corporate action or inaction has taken on signicant importance.170

Accordingly, the importance of silent corporate complicitys moral dimension might prompt future recognition of a corollary legal
167 169 168 Ramasastry, Corporate Complicity, p. 102. Ibid., pp. 1023. Clapham and Jerbi, Categories of Corporate Complicity, pp. 3478. Accordingly, criticisms issued against companies working in South Africa during the apartheid regime constitute an example of this category of silent corporate complicity. Ramasastry, Corporate Complicity, p. 103. Clapham and Jerbi, Categories of Corporate Complicity, p. 347.

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obligation.171 Be that as it may, concerns as to the limits of the scope of corporate complicity warrant an examination of complicity as a mode of liability and the standards for its application to corporations that is to say, an evaluation of the current state of the law. Complicity is a mode of liability which is known to both public international law (i.e. international criminal law) and domestic law (e.g. tort law). Under tort law, complicity can arise for a legal person depending on the proximity i.e. the special relationship that it has with the victims of the tort or the perpetrator of the harm.172 However, there is, at present, no such thing as international tort law.173 While civil responsibility for torts is a normal part of both common and civil law systems, not all states have laws permitting corporations to be sued for torts relating to international crimes.174 By contrast, as discussed below, the notion of complicity is fairly well established under international criminal law as the mode of liability

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In his analysis of the scope of corporate complicity, Ratner emphasizes that mere business relations, nancing or investment, for instance, with a country of bad human rights records are not enough for ascertaining corporate liability as [m]ore would have to be shown than such lose ties (Ratner, Corporations and Human Rights, pp. 5023). He further recognizes that One could go much further than the existing norms of international law for deriving corporate duties for instance, by working from a moral starting point that a corporation has a duty not to invest at all in a repressive society, or a duty to ensure that it does not in any way benet from the governments lax human rights policy. (Ibid., p. 503, emphasis added.) See also Lowe, Corporations, p. 30: it is evident that international law is developing so as to establish an expectation, if not as yet a legal obligation on corporations, that they will exercise their powers and inuence in such a manner as to promote the implementation of human rights. Tort law deals with complicity by describing some very limited situations in which an individual could be responsible for a tort committed by someone else, usually because of the special relationship between the individuals and either the victim or the person committing the tort. ICHRP, Beyond Voluntarism, p. 123. Ibid., pp. 1212. C. Wells and J. Elias, Catching the Conscience of the King: Corporate Players on the International Stage in P. Alston (ed.), Non-state Actors and Human Rights (Oxford University Press, 2005), p. 161. However, see R. G. Steinhardt, Corporate Responsibility and the International Law of Human Rights: The New Lex Mercatoria in Alston (ed.), Non-state Actors and Human Rights, p. 218, emphasizing that the common law countries, especially the United States, are not exceptional in this sense: Pending actions in the United Kingdom, Belgium, France, and Japan similarly test the civil and criminal exposure of companies to liability for their complicity in egregious human rights violations in various parts of the world. See also O. de Schutter, The Accountability of Multinationals for Human Rights Violations in European Law in Alston (ed.), Nonstate Actors and Human Rights, esp. pp. 2915.

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known as aiding and abetting.175 As we discuss in more detail below,176 aiding and abetting is commonly understood as a form of practical assistance, encouragement or moral support by the accessory having a substantial effect over the crime committed by the principal. The objective element can take the form of a positive action or omission,177 be it physical (or intangible) or moral and psychological.178 The tacit encouragement or mere presence of the accessory may prove sufcient when the latter exerts some form of authority over the principal.179 As for the subjective element of aiding and abetting, the accessory must be aware that the principal will or might use this assistance in the commission of a crime and must have the intent to encourage the principal.180 However, the accessory does not need to share the principals intent to commit the crime in question.181 As we discuss below, although business leaders have been prosecuted for international crimes (committed through the acts of corporations under their control), there have been no prosecutions of corporations per se before international tribunals, and existing international courts lack jurisdiction over legal persons.182 Corporations may thus only be prosecuted in national courts for complicity. When it comes to civil suits based on a notion of corporate complicity, US case law shows that it is unclear whether courts should rely on international tests for aiding and abetting crimes, or whether they should refer to appropriate (and, hopefully, analogous) concepts and

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182

For more details on aiding and abetting as a mode of liability under international criminal law, refer to Antonio Cassese, International Criminal Law (Oxford University Press, 2008), pp. 21418. See Ch. 5, section C 2.3 below. Prosecutor v. Aleksovski (Trial Chamber Judgment) IT-9514/1-T (25 June 1999), at para. 63 (Aleksovski); Prosecutor v. Blaki (Appeals Chamber Judgment) IT-9514-A (29 July 2004), at para. 47. Cassese, International Criminal Law, p. 214. See Prosecutor v. Furundija (Trial Chamber Judgment) IT-9517/1-T (10 December 1998), at paras. 229, 2312 (Furundija). For tacit encouragement, see Akayesu (TC Judgment 1998), at paras. 7045, and Furundija at para. 274; for mere presence, see the Synagogue (K. and A.) and Pigcart parade (L. and ors) cases in front of the German Supreme Court in the British Occupied Zone (for an account of those cases, see Cassese, International Criminal Law, p. 215) and ICTY, Aleksovski at para. 64. See Cassese, International Criminal Law, pp. 21516. Which is the basis to make the difference with the joint criminal enterprise mode of liability. See e.g. ibid., p. 211 and Furundija at paras. 2507. See Ch. 5, section C 1 below. The statutes of the two ad hoc tribunals make no mention of legal entities; the rst articles of the ICTY and ICTR Statutes refer to their jurisdiction over persons, which has so far been understood as natural persons.

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tests in domestic tort law, such as agency, joint venture, or reckless disregard.183 While common law countries, and especially US courts, are viewed as leading instances in the recognition of corporate complicity, the standards attached to such liability are still disputed and will therefore require further consideration and determination.184 Claphams approach to the dilemma attempts to provide a conciliatory solution that might lay down the foundations of a future consensual understanding of corporate complicity. In his analysis of US corporate complicity cases, he identies two distinct types of crimes falling under the ATS prompting the application of different vicarious liability standards.185 First, he isolates international crimes186 such as slavery, genocide, war crimes, crimes against humanity and torture.187 As those violations have been criminalized by international law and entail the
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The Unocal majority ruling of the US Appeals Court for the Ninth Circuit and the concurring opinion of Judge Reinhardt are illustrative of this dilemma in terms of the complicity test to be applied: Doe v. Unocal, 395 F 3d 932 (9 Cir 2002). While the case was actually reheard by the en banc court afterwards, it nonetheless provides a good illustration of the dilemma caused by the determination of standards of complicity. For a detailed account of the case, see: Clapham, Human Rights Obligations of Non-state Actors, pp. 25561; Muchlinski, Multinational Enterprises, pp. 52731; Ramasastry, Corporate Complicity, pp. 13041 (who wrote before the 2002 decision of the Ninth Circuit Appeals Court decision, thus criticizing the 2000 decision). Judge Reinhardt disagreed with the international criminal law standards followed by the majority, favouring, instead, a federal tort law approach of the notion of complicity: I do not agree that the question of Unocals tort liability should be decided by applying any international test at all. Rather, in my view, the ancillary legal question of Unocals thirdparty tort liability should be resolved by applying general federal common law tort principles, such as agency, joint venture, or reckless disregard. Opinion of Judge Reinhardt, reversed in part, afrmed in part and remanded. Judge Reinhardt explained each federal common law tort principle and considered them to be well-established under international law. In his opinion, although the facts were sometimes disputed, Unocal could have been found an accomplice under all these three theories. However, see the strong stand taken by Andrew Wilson claiming that the correct standard is the international criminal law one. He further contends that reliance upon federal law standard is due to a misinterpretation of the Act itself as a basis of universal jurisdiction. A. J. Wilson, Beyond Unocal: Conceptual Problems in Using International Norms to Hold Transnational Corporations Liable under the Alien Tort Claims Act in in O. de Schutter (ed.), Transnational Corporations and Human Rights (Oxford: Hart, 2006), pp. 569. Vicarious liability encompasses aiding and abetting, conspiracy, etc. For a more detailed discussion of the Alien Tort Statute, see Ch. 5, section D below. For a denition of international crimes see Cassese, International Criminal Law, pp. 1112. Cassese does not consider slavery as an international crime (ibid., pp. 1213), contrary to Clapham, who seems to include slavery in the international crimes category in his analysis of the Unocal case (Clapham, Human Rights Obligations of Non-state Actors,

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individual criminal liability of the person committing them,188 he supports reliance upon international criminal law in order to determine corporate complicity. As such, he denes the complicit liability of a corporation in the following terms:
Where a corporation assists another entity, whether it be a state, a rebel group, another company, or an individual, to commit an international crime, the rule for determining responsibility under international law will be the rules developed in international criminal law. The corporation will be responsible as an accomplice, whether or not it intended a crime to be committed, if it can be shown that (a) the corporation carries out acts specically directed to assist, encourage or lend moral support to the perpetration of a certain specic international crime and this support has a substantial effect upon the perpetration of the crime; and (b) the corporation had the knowledge that its acts would assist the commission of a specic crime by the principal.189

The second category of crimes identied by Clapham encompasses international torts, namely IHRL violations that have not gained the status of international crimes.190 For those torts, the author militates for an application by analogy of the concept of complicity under the state responsibility doctrine.191 On the basis of the ILCs

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pp. 2559). Furthermore, Cassese adds to the list the crimes of aggression and international terrorism in its most extreme forms. Cassese, ibid., p. 12. The 1998 Rome Statute is illustrative of the fact that some specic acts under international law have been criminalized as individuals may have to face responsibility for their acts before the ICC (note, however, that the Rome Statute does not contain an exhaustive codication of all conduct criminalized under customary international law). Clapham, Human Rights Obligations of Non-state Actors, pp. 2656. However, in the eventuality of a corporation alleged to be accomplice in the commission of acts of torture, the state of international law is unclear as to whether the principal has to be a state ofcial (de jure or de facto) or could also consist of a non-state actor (such as an armed group, for instance). Indeed, while the crime of torture was originally conceived as a state crime, the ICTY has recognized that torture could also be committed without any state involvement. Nonetheless, it remains uncertain whether the ICTY was referring only to torture as a war crime or also was encompassing torture as a discrete crime. Prosecutor v. Kunarac, Kova and Vukovi (Trial Chamber Judgment) IT-9623 and 23/1 (22 February 2001) esp. at para. 496. Referring to Wiwa v. Shell, Clapham points out that part of the claims concerned the participation by Shell in violations of customary international law by Nigeria, i.e. the right to life, liberty and security of the person and peaceful assembly and association. Clapham, Human Rights Obligations of Non-state Actors, p. 262. Because international law has focused so far on individual criminal responsibility and state civil responsibility, guidance on the international rules regarding international civil responsibility for non-state actors may most appropriately be sought in the

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ASR,192 he sets out three requirements for a corporation to be found accomplice in a state violation of customary international law rights: (i) awareness by the corporation as to the circumstances making the activity of the assisted state a violation of international human rights law; (ii) direct assistance with the view to facilitating the commission of such a violation thus signicantly contributing to the violation; and (iii) existence of the same obligation incumbent on the company itself.193 In the light of the above, corporate complicity might constitute a promising avenue for binding PMSCs as corporations by IHL in going beyond mere direct liability and individual criminal responsibility. However, shortcomings are still to be overcome, especially concerning the lack of consensus over applicable standards of corporate complicity. In this sense, Claphams approach manages to breathe some clarity and predictability into the debate by differentiating between two sorts of crimes. The international crimes category and the attached corporate complicity notion are of direct concern for the subject of the present chapter. As war crimes are par excellence the criminalized violations of IHL, it follows that a PMSC assisting, encouraging or lending moral support to the perpetration of war crimes committed by its contractor (be it the state, an armed group or any other entity) in the context of an armed conict could be deemed an accomplice to those crimes if its support substantially affected the commission of the crime and if it knew its acts would assist the perpetration of the crime. However, reliance on international criminal law highlights the legal limits of the corporate complicity notion. Indeed, complicity as understood by international criminal law i.e. aiding and abetting requires a causation test that might not be satised in all instances falling within the broad and loose notion of benecial or indirect complicity, and that will surely fail to be fullled in cases of silent corporate complicity.194 Moreover, those that are complicit
developing law of state complicity as elaborated in the ILCs Articles on State Responsibility. Ibid., p. 263. See Art. 16 ASR. Clapham, Human Rights Obligations of Non-state Actors, p. 266. Steinhardt makes the same remark, but referring to tort law standards of complicity. Steinhardt, Corporate Responsibility and the International Law of Human Rights, p. 217: But a corporation cannot be held liable for a host governments systemic violations of civil, political, economic, social, and cultural rights, unless the corporation contributes to the violation: certainly nothing in the regime of civil liability overrules the established standards of tort or delictual liability, including the standards of responsibility and proximate cause.

192 193 194

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must somehow be bound by a distinct rule that they may not aid or abet; it does not necessarily entail that they are bound by the primary rule.

2.4 Self-regulation and corporate codes of conduct A fourth potential way in which PMSCs as corporations may be bound by international law and more specically IHL ows from initiatives undertaken by PMSCs themselves: corporate codes of conduct. Voluntary codes of conduct such as those adopted by PMSCs are not a novelty; they are part of a broader tendency of self-regulation undertaken by multinational companies since the 1970s. Due to the increasing importance of IHRL on the international scene, violations of those rights by transnational companies have progressively given rise to a policy of naming and shaming by the international community. The past few decades have highlighted the detrimental effects the activities of multinational corporations can have in a range of areas, such as environmental protection and IHRL (including labour rights).195 Awareness of those repercussions by the public at large and the consequent criticism has prompted transnational companies to adopt voluntary codes of conduct providing a framework for the conduct of their commercial activities. As companies reputations were at stake, codes of conduct appeared as the best means to regaining contractor and consumer condence. The age of ethical consumption was underway. The rst initiative in this sense was prompted by a response to the apartheid regime of South Africa the 1977 Sullivan Principles but it is since the mid-1980s and 1990s that codes of conduct have truly gained momentum.196 Relatively current estimates by the World Bank place the
A corporations mere benet from a governments abuses of human rights is not enough to trigger liability.
195

Murphy, Multinational Corporate Codes of Conduct, p. 400: As human rights, labor rights, and environmental rights continue to advance within the global consciousness, the practices of many MNCs in developing countries have been regarded as out of step with social expectations. This gap, in turn, has led to strident criticism of MNC activity, and sometimes to consumer backlash whereby MNCs are faced with demands for products certied as having been produced without adverse social consequences. Good examples are the codes of conduct adopted by transnational corporations such as LeviStrauss and Nike in 1991. F. McLeay, Corporate Codes of Conduct and the Human Rights Accountability of Transnational Corporations: A Small Piece of A Larger Puzzle in O. de Schutter (ed.), Transnational Corporations and Human Rights (Oxford: Hart, 2006), p. 221.

196

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number of codes of conduct at 1,000; the OECD based its 2001 Review of Codes of Conduct on 246 of them.197 Codes of conduct have increasingly been the rule rather than the exception, and have attracted the interest of various international bodies, which have dened them as a written policy, or statement of principles, intended to serve as the basis for a commitment to particular enterprise conduct198 or as commitments voluntarily made by companies, associations or other entities, which put forth standards and principles for the conduct of business activities in the market place.199 Among all the variable denitions laid down, two interrelated characteristics of those codes of conduct appear to be recurring: rst, their voluntary character and, secondly, their non-binding nature. PMSCs have energetically engaged in self-regulation on various levels, from industry association codes of conduct and pledges to respect charters, to participation in the creation of international codes of conduct developed with the participation of states, NGOs and the International Committee of the Red Cross (ICRC). While one PMSC charter is rather vague in terms of commitments to respecting international law, others make explicit statements, such as, signatories shall respect the dignity of all human beings and strictly adhere to all applicable international humanitarian and human rights laws.200 The crucial question is, what impact do codes of conduct and other forms of industry self-regulation have in terms of binding IHL and IHRL obligations for PMSCs as corporations? In general, due to their weak enforcement mechanisms, codes of conduct have been qualied as mere marketing operations to seduce and attract potential clients and new contracts, but whose application
197 198

199

200

Ibid. ILO, Working Party on the Social Dimensions of the Liberalization of International Trade, Overview of Global Developments and Ofce Activities Concerning Codes of Conduct, Social Labeling and Other Private Sector Initiatives Addressing Labour Issues, Executive summary, GB 273/WP/SLD/1 (4 November 1998), 273rd Sess., Geneva. OECD Directorate for Financial, Fiscal and Enterprise Affairs, Codes of Corporate Conduct: Expanded Review of their Contents (May 2001), Working Papers on International Investment, November 2001, p. 3. International Stability Operations Association (ISOA, formerly IPOA) Code of Conduct (12th version), section 1.1, http://ipoaworld.org/eng/codeofconduct/87-codecodeofconductv12enghtml.html. For a more detailed discussion of PMSC codes of conduct, see below, Ch. 5, section E below. See also S. Ranganathan, Between Complicity and Irrelevance? Industry Associations and the Challenge of Regulating Private Security Contractors (2010) 41 Georgetown J Intl L 30376.

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was ineffective behind the faade. (Mazuyer notes the new terminology of marketing transformed by some authors into markethic.)201 However, the lack of effective implementation of codes of conduct derives from a more fundamental weakness of those codes: they are not legally binding within the realm of international law. As Mazuyer observes, Unilaterally set down by company directors, their principal characteristics are that they are voluntary, spontaneous instruments, belonging to the domain of soft law; thus, from the outset, they are only moral rules or incentives, alien to binding and coercive law.202 The value of unilateral declarations made by transnational corporations has not been recognized as having the same binding legal force as the unilateral declarations of states. The unilateral declarations of states were recognized as a binding source of obligations by the ICJ in the Nuclear Tests cases.203 The fact that a state unilaterally declares that it will abide by certain standards or rules creates legitimate expectations on the part of other states. One could claim that, in referring only to states, the ICJ does not necessarily imply that unilateral declarations undertaken by other entities could not have the same binding legal effect. Recognition of the binding character of unilateral declarations could be a logical consequence in so

201

202 203

The term is originally used in French: markthique. See Emmanuelle Mazuyer quoting P. Diener in E. Mazuyer, LAutorgulation des entreprises par les codes de conduites: un mcanisme effectif pour les engagements thiques? in Y. Kerbrat and H. Guerari (eds.), LEntreprise dans la socit internationale (Paris: Pedone, 2010), p. 200. Ibid., p. 201 (our translation). It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specic. When it is the intention of the State making the declaration that is should be bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made. Nuclear Tests (Australia v. France) (Judgment) [1974] ICJ Rep 253, at 267, para. 43 and Nuclear Tests (New Zealand v. France) (Judgment) [1974] ICJ Rep 457, at 472, para. 46.

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far as PMSCs are (limited) subjects of international (humanitarian) law. However, unilateral acts of other subjects of international law (such as international organizations) were expressly excluded from the mandate of the International Law Commission Special Rapporteur on Unilateral Acts of States in his rst report.204 The 2006 Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations endorsed that approach.205 The principal bar for the unilateral declarations of transnational corporations to be vested with some legally binding force seems to be inherently linked to their contested international legal personality discussed above. Principle 2 of the Guiding Principles states that [a]ny State possesses capacity to undertake legal obligations through unilateral declarations, a capacity which ows from states inherent international legal personality. Even if one were to recognize a limited international personality for PMSCs under international law, and the possibility that they could be bound by unilateral declarations, most codes of conduct explicitly mention that they are not legally binding. This was not the case for the unilateral declaration made by the French president which was dealt with by the Nuclear Tests case mentioned above. Nevertheless, a binding character may ow from domestic law. For example, the Supreme Court of California recognized in Kasky v. Nike that Nikes declaration of good working conditions in its Asian factories could be enforced against the company in case of violation, by virtue of consumer protection laws.206 The declaration was deemed to amount to commercial speech that could mislead consumers if false, and therefore subject to government regulation.207 While the Supreme Court dismissed the petition for certiorari as improvidently granted,208 the lower court ruling may open up new avenues to enforce PMSC codes of conduct in civil courts in case of misinformation. One could still point to two other ways for PMSC codes of conduct to be legally binding: rst, through their insertion into employees contracts and, secondly, by their integration into domestic law. On the one hand, to insert provisions of a code of conduct in a PMSC staff members contract would only reinforce obligations incumbent upon all individuals
204

205

206 207 208

ILC, First Report on Unilateral Acts of States, by Victor Rodriguez-Cedeo, Special Rapporteur, UN Doc. A/CN.4/486 (5 March 1998), paras. 308. ILC, Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations (2006) 2(2) YBILC; UN Doc. A/61/10. Kasky v. Nike Inc., 27 Cal 4th 939 (2002). See Kinley and Tadaki, From Talk to Walk, pp. 9578. Nike, Inc. v. Kasky, 539 US 654 (2003).

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by virtue of the direct applicability of IHL.209 Hence, it will not be the PMSC accountability that would be at stake, but only the employees responsibility. On the other hand, while integration of codes of conduct into domestic law would indeed transform their provisions into binding law, this will be by virtue of domestic law and not through PMSC selfregulation under international law. In conclusion, PMSC codes of conduct can only be viewed as the sign of an emerging concern for the regulation of corporate behaviour. However, from a strictly positivist perspective, these codes are not binding on their own. They therefore only create incentives for PMSCs to respect IHL, but do not provide for an effective means of binding PMSCs by IHL. As one of the authors of the present book has argued, [t]his gesture is laudable but people handling weapons in situations of armed conict clearly need to be bound by more than a voluntary code of conduct.210

2.5 Internal legal mechanisms Domestic regulation, contracts and the law of international organizations are the nal three mechanisms we can identify as creating binding IHL obligations for PMSCs as corporations. National regulation is promising in terms of lling the regulatory void left at the international level. Indeed, the lack of international regulation of PMSC activities211 and the non-binding character of self-regulation adopted by them212 have the consequence of vesting a hope of last resort in domestic law for PMSC regulation. In this sense, three main regulatory options can be identied at the national level, namely domestic legislation, registration and licensing schemes and contracts between PMSCs and their clients. It will appear that those domestic efforts nonetheless remain weak. Clear domestic legislation regulating PMSCs activities and behaviour with regard to international law, and more specically IHL, is rare at the national level, be it in the home state of the PMSC, the contracting state,
209

210

211

212

Those codes are only declarative of existing obligations already binding upon all individuals, including their staff members. In this sense, see the next part concerning the binding character of IHL upon individual PMSCs staff members. 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), p. 138. This lack of international regulation is thus coupled with the consequent absence of international tribunals ruling on violations of IHL by PMSCs despite doctrinal efforts to enhance PMSCs responsibility. In this sense see the previous section presenting the doctrine of corporate complicity. See above, section 2.4 on self-regulation.

340 legal means through which pmscs are bound by ihl

or the territorial state in which the PMSC operates.213 Even the United States, considered to be the state with the most extensive legislation regulating PMSCs, lacks specic national legislation dedicated exclusively to those entities. US legislation is more concerned about regulating the behaviour of individuals accompanying the armed forces to theatres of armed conict than the corporate entities as such.214 For instance, the Uniform Code of Military Justice215 and the 2000 Military Extraterritorial Jurisdiction Act216 address individuals, without any mention of
213

214

215

216

See Daniel Threr and M. MacLaren, Military Outsourcing as a Case Study in the Accountability and Responsibility of Power in A. Reinisch and U. Kriebaum (eds.), The Law of International Relations: Liber Amicorum Hanspeter Neuhold (Utrecht: eleven, 2007), pp. 4012. On the US legislation covering the conduct of PMSCs staff members, see J. S. Thurnher, Drowning in Blackwater: How Weak Accountability over Private Security Contractors Signicantly Undermines Counterinsurgency Efforts (July 2008) Army Lawyer 6490, 64 ff. The Uniform Code of Military Justice (UCMJ) establishes court-martial jurisdiction not only over armed forces personnel but also over persons serving with or accompanying an armed force in the eld, in time of declared war or contingency operation (UCMJ, 10 U.S.C. paras. 802 et seq.). While this provision may well cover PMSC personnel contracted by the United States in an armed conict outside the United States, two hurdles will need to be overcome for the UCMJ to apply: (1) that the court-martial jurisdiction over a civilian contractor is not declared as unconstitutional and, (2) that a sufcient connection between the individuals activities and the US armed forces be established to conrm that he was actually serving with or accompanying armed forces in the eld (J. K. Elsea and N. M. Serano, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues, CRS Report for Congress (updated 11 July 2007), pp. 223) (Elsea and Serano, Private Security Contractors in Iraq (2007)) See also 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) pp. 3867; M. Caparini, Regulating Private Military and Security Companies: The US approach in A. Alexandra, D.-P. Baker and M. Caparini (eds.), Private Military and Security Companies: Ethics, Policies and Civil-Military Relations (Abingdon: Routledge, 2008), p. 179. The Civilian Extraterritorial Jurisdiction Act (CEJA) of 2010 has been proposed in the 111th Congress, HR 4567. The Military Extraterritorial Jurisdiction Act (MEJA), 18 USC, paras. 32617. The Act establishes jurisdiction of US courts over criminal acts (i.e. those offence[s] punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States) committed outside the United States by military personnel or persons accompanying the armed forces. Ibid., para. 3261. While the Act recognizes contractors as within its scope ratione personae, it was nonetheless originally limited to those contractors working for the Department of Defense (DoD). The Reagan National Defense Authorization Act expanded its scope to contractors employed by any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas (ibid., para. 3267, (1)(A)(ii)). PMSCs personnel working for another US agency

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corporations. Of course, the regulations directed at individuals are relevant and important when it comes to how IHL binds individuals (and to compliance with IHL obligations on the part of the state), but they do not specify binding rules for the corporations themselves per se. Switzerland, while very active on the international scene to promote regulation of PMSCs, for a time decided not to initiate federal legislation on the subject, ostensibly because no major PMSC had its headquarters in Switzerland. The recent decision by a major PMSC, Aegis, to move its headquarters from London to Basel, Switzerland, led it to revise its approach and it is now considering a draft law. One can argue that, despite this lack of specic regulation concerned with PMSCs, the US regulatory system has in a way kept pace with the mushrooming number of PMSCs established on US soil through the use by private parties of its ATS to sue PMSCs for violations of international law. The ATS, while not originally dedicated to regulating and repressing corporate acts, has been increasingly used and interpreted as providing for a cause of action against PMSCs that have violated international law especially IHRL before US federal courts.217 The Act grants jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States to US district courts.218 Although the Act had rarely been invoked since its adoption in 1789,219 the 1980 Filrtiga case revealed the Acts true potential scope. Since the Court of Appeals ruling on the ability of the ATS to cover international law violations committed outside the United States by
(such as the CIA) for a mission not related to the DoD will therefore fall outside the MEJA ambit. For more explanation on MEJA, see Elsea and Serano, Private Security Contractors in Iraq (2007), p. 19; McDonald, Ghosts in the Machine, pp. 3878; Caparini, Regulating Private Military and Security Companies, pp. 17981. In October 2007, MEJA was further expanded to cover all contractors working for US agencies, but two limitations were attached: 1) it only applies to US nationals; and 2) it only applies to offences that carry a custodial sentence of at least twelve months in the United States. Advisory Council on International Affairs, Employing Private Military Companies: A Question of Responsibility (December 2007), p. 19. N. Stinnett, Regulating the Privatization of War: How to Stop Private Military Firms from Committing Human Rights Abuses (2005) 28 Boston College Intl & Comparative L Rev 217. Stinnett notes that scholars who have reviewed ATS cases against PMSCs have concluded on this basis that PMFs [private military rms] can successfully be held liable under the ATCA. Ibid., p. 218. Alien Tort Claims Act, 28 USC 1350. On the early history of ATCA, see N. Beisinghoff, Corporations and Human Rights: An Analysis of ATCA Litigation against Corporations (Frankfurt: Peter Lang, 2008), pp. 11215.

217

218 219

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foreigners against foreigners,220 subsequent courts interpretations of the ATS have further expanded its scope as to vest the Act with a true regulatory and repressive function in cases of corporate violations of IHRL: As international law evolves, so does domestic liability under the ATCA, in terms of both prohibitions recognized as customary international law and the extension of that liability to private actors, including corporations.221 The Kadic222 and Sosa223 decisions and the subsequent Sarei v. Rio Tinto ruling224 established that the ATS covers human rights. Today, the recognized human rights falling within the ambit of the Act range from slavery, genocide, crimes against humanity and war crimes. Concerning the corporate civil liability under the ATS, the Unocal case225 reafrmed previous jurisprudence226 which considered corporations as liable under the Act. (As noted below, however, that crucial aspect has been called into question by a recent decision of an Appeals Court in

220

221

222

223

224

225 226

By ruling that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today, the US Second Circuit Court of Appeals opened up the door to human rights claims under the ATCA. Filrtiga v. Pena-Irala, 630 F 2d 876 (CANY 1980), at para. 881. See comments of the case provided by Beisinghoff, Corporations and Human Rights, pp. 11618. A. C. Taylor, Government Contractors: Above the Laws of War? (2006) 35 Public Contract LJ 289. The Kadic ruling afrmed competence of the US courts by virtue of ACTA over individuals, even without state participation. Kadic v. Karadzi, 70 F 3d 232 (2nd Cir 1995). For comments on the Kadic case, see Beisinghoff, Corporations and Human Rights, p. 119. The Sosa ruling of the Supreme Court afrmed that human rights victims could bring claims before US courts by virtue of ATCA, but that care should be given not to enlarge excessively the meaning of laws of nations, that is to say customary international law. Sosa v. Alvarez-Machain 542 US 692, 124 S Ct 2739 (2004). See also Beisinghoff, Corporations and Human Rights, pp. 11923. Sarei v. Rio Tinto plc, 456 F 3d 1069 (9th Cir 2006) where the Court of Appeals recognized claims for violations of the laws of war, racial discrimination as jus cogens violations that form the least controversial core of modern day ATCA jurisdiction and even provisions of the United Nations Convention on the Law of the Sea as customary international law as sufcient to provide the basis of an ATCA claim. For an account of the Unocal case, see Ch. 5, section D 1.3 below. See, inter alia, the following ATCA cases concerned with corporate liability: Iwanowa v. Ford Motor Company, 67 F Supp 2d 424, DCNJ (1999); Ken Wiwa v. Royal Dutch Petroleum Co., 226 F 3d 88 (2nd Cir 2000) (on this case, see Beisinghoff stating that the Wiwa decision stands as a precedent for human rights accountability of TNCs [transnational corporations]. Beisinghoff, Corporations and Human Rights, p. 144); Bowoto v. Chevron Texaco Corp., 312 F Supp 2d 1229, DCND Cal (2004); Presbyterian Church of Sudan and ors. v. Talisman Energy, Inc., 224 F Supp 2d 289, DCSDNY (2003).

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New York.)227 The ATS is however not free from weaknesses, as many procedural bars can be raised against suits.228 Some scholars consider the ATS as an inadequate remedy for PMF abuses and a poor regulatory tool as a result.229 A majority of scholars nevertheless usually recognize the ATS as meaningful legislation allowing for PMSC liability in the face of the overall weak domestic regulatory measures. In so far as the jurisprudence owing from these cases begins to dene a body of law that applies to them, the ATS may be seen as a vehicle through which international obligations are made directly applicable to PMSCs as corporations. In this sense, it is unfortunate that the ATS remains a US exception.230 In another vein, however, the Canadian Crimes Against Humanity and War Crimes Act 2000 (Canadas implementing legislation for the Rome Statute) has opened the door for corporate criminal liability for international crimes, despite the fact that the Rome Statute does not give the International Criminal Court (ICC) jurisdiction over legal persons.231 One cannot but hope that other countries will follow the same path.232 While domestic legislation substantively governing the conduct of PMSCs is scarce, some countries have adopted national legislation

227

228

229 230 231

232

See Ch. 5, nn. 44956 below, discussion of Kiobel v. Shell, 621 F 3d 111 (17 September 2010). E.g. the act of state doctrine, forum non conveniens, exhaustion of remedies or its tenyear statute of limitations. See Beisinghoff, Corporations and Human Rights, p. 108; and Stinnett, Regulating the Privatization of War, p. 219. See also Jgers, Corporate Human Rights Obligations, pp. 196200. See Ch. 5, section C 2 below on the jurisdictional problem in establishing civil responsibility. Stinnett, Regulating the Privatization of War, p. 219. See Ch. 5 below for a discussion of similar opportunities for suits in other states. Crimes against Humanity and War Crimes Act (CAHWCA), S.C. 2000, c. 24. The Act is addressed to the criminal behaviour of every person, without specifying whether such qualication does refer only to natural but also to legal persons (see e.g. s. 6 of the Act). However s. 2(2) of the Act makes a renvoi back to the Canadian Criminal Code for any term that would not be dened in the CAHWCA. As legal persons fall within the scope ratione personae of the Criminal Code, the same applies for the CAHWCA. On the CAHWCAs scope, see E. Lambert-Abdelgawad, Droit international pnal. Les socits militaires prives: un d supplmentaire pour le droit international pnal (2007) RSC 164; W. C. Wanless, Corporate Liability for International Crimes under Canadas Crimes against Humanity and War Crimes Act (2009) 7 JICJ, 20121. See K. Weigelt and F. Mrker, Who Is Responsible? The Use of PMCs in Armed Conict and International Law in T. Jger and G. Kmmel (eds.), Private Military and Security Companies. Chances, Problems, Pitfalls and Prospects (Wiesbaden: VS Verlag fr Sozialwissenschaften, 2007), p. 287 stating that the UK and Australia have taken steps to follow the US example.

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requiring registration or licensing of PMSCs and their activities. This kind of regulation can take the form of licensing either PMSCs themselves, contracts concluded by PMSCs or individual staff members. Furthermore, it can be adopted in the home state of the company, the contracting state or the territorial state where the company will perform its tasks. An overview of domestic laws seems to indicate a trend in favour of this option for PMSC regulation. Some examples help to provide a clearer sense of the scope of such registration schemes and their ability to bind PMSCs by IHL as corporations. The most salient examples of licensing systems established in home states are those of the United States and South Africa, two countries well known for hosting the headquarters of various PMSCs.233 The US has opted for a double licensing scheme by virtue of the Arms Export Control Act234 and its implementing legislation, the International Trafc in Arms Regulations (ITAR).235 Prior PMSC registration is required for
233

234

235

For a more detailed account of the US and South African registration schemes, see e.g. Deborah Avant, Selling Security: Trade-Offs in State Regulation of the Private Security Industry in T. Jger and G. Kmmel (eds.), Private Military and Security Companies. Chances, Problems, Pitfalls and Prospects (Wiesbaden: VS Verlag fr Sozialwissenschaften, 2007), esp. pp. 4249; S. Buchner, Private Military Companies and Domestic Law in South Africa in Jger and Kmmel (eds.), Private Military and Security Companies, pp. 395405; M. Caparini, Domestic Regulation: Licensing regimes for the exports of military goods and services in S. Chesterman and C. Lehnardt (eds.), From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford University Press, 2007), pp. 15878; Michael Cottier, Elements for Contracting and Regulating Private Security and Military Companies (2006) 88 Intl Rev Red Cross 65361; T. Garcia, La Puissance de subversion des entreprises: les socits prives de scurit in Y. Kerbrat and H. Guerari (eds.), LEntreprise dans la socit internationale (Paris: Pedone, 2010), pp. 768; J. Gofre, Human Rights and Private Military Companies: A Double-Edged Sword too Dangerous to Use? in Jger and Kmmel (eds.), Private Military and Security Companies, pp. 24951; N. Matziorinis and P. Nalin, Private Military Companies: Legitimacy and Accountability (Montreal: McGill Management, 2004), p. 22; 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 for Security Studies, 1999), pp. 21417; A. Schneiker, National Regulatory Regimes for PSMCs and their Activities: Benets and Shortcomings in Jger and Kmmel (eds.), Private Military and Security Companies, pp. 40715. Other countries willing to follow the same regulatory path include also Switzerland and the UK. Concerning the UK, refer to the UK Foreign and Commonwealth Ofce, Private Military Companies: Options for Regulation, Ninth Report of Session 200202 (on the Green Paper) (Sess. 20012), paras. 735. The AECA governs the sale of defence articles and services to foreign countries. See 22 USC, Chapter 39, Subchapter III, para. 2778. The 2009 consolidated version of the ITAR is online: www.pmddtc.state.gov/regulations_laws/itar_consolidated.html.

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the PMSC to be allowed to sell its services to a foreign government.236 The second licensing concerns the specic contracts undertaken by the PMSCs that have to be agreed upon by the Directorate of Defense Trade Controls.237 However, this double licensing system is less concerned about human rights issues that can arise abroad due to PMSCs activities than ensuring that PMSCs will not infringe US foreign policy.238 Further congressional oversight is only required for contracts of sale exceeding US$50 million to non-NATO countries, save for Australia, Japan, New Zealand and South Korea.239 While the US regulation seems to accommodate PMSCs to some extent, South Africa has taken a tougher position on their activities. By virtue of the 1998 Regulation of Foreign Military Assistance Act (FMAA), mercenary activity and rendering foreign military assistance to countries in a state of armed conict is banned,240 while an exception provides for the possibility to authorize a PMSC to render foreign military assistance.241 As in the United States, South Africa relies then on a double licensing system, i.e. registration of PMSCs to the National Conventional Arms Control Committee242 and approval of specic single contracts.243 Section 7 of the Act lays down criteria for granting or refusing authorization and approval. Contrary to the ITAR, which is mainly concerned about potential undermining of US policy, the FMAA seems more in favour of international law considerations in its approval or refusal process, as PMSCs or their contracts could be refused the necessary licenses if they are in conict with the Republics obligations in terms of international law or on the grounds of infringement of human rights and fundamental freedoms in the territory in which the foreign military assistance is to be rendered.244 The Act is however stained by an important loophole as it does not cover the rendering of
236 237 238 239

240

241 244

See ITAR Part 122.1, Registration of Manufacturers and Exporters. Ibid. Part 123.1, Requirement for Export or Temporary Import Licenses. Caparini, Domestic Regulation, p. 160. See ITAR, para. 123.15(a)(1). For NATO countries or the above-mentioned states, congressional approval is only required for military services sold for an amount of $100 million or more. See paras. 2 and 3 of the FMAA, no. 15, 1998 (available in the Republic of South Africa, Government Gazette, vol. 395, no. 18912, 20 May 1998): No person may within the Republic or elsewhere recruit, use or train persons for or nance or engage in mercenary activity. 242 243 Ibid., para. 3. Ibid., para. 4. Ibid., para. 5. [P]rejudic[ing] the Republics national or international interests is still nonetheless part of the decision-making process for refusing a certain license. Ibid., para. 7(1)(f).

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foreign humanitarian assistance.245 In the face of the consequent increasing number of PMSCs claiming to pursue humanitarian assistance in order to escape the licensing scheme,246 South Africa adopted the 2006 Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conict Act, which expanded the FMAA scope to cover not only military assistance but any assistance or rendering of services in country of armed conict or regulated country.247 Strong criticism was raised that the Acts broad coverage will subject South African NGOs to the same licensing schemes as PMSCs, and will thus undermine prompt intervention by NGOs in conict areas in need of international humanitarian assistance.248 Both the South African and US registration systems provide for a refusal to renew or the possibility to revoke licences in cases of violation, but extraterritorial monitoring remains inherently difcult in foreign countries.249 Effective oversight can undoubtedly be better exercised by territorial states where PMSCs perform their activities. While such states are sometimes too weak to undertake proper PMSC regulation due to the armed conict or unstable situations they are facing, some territorial states have nonetheless succeeded in adopting licensing procedures for PMSC activities.250 The former Coalition Provisional Authority in Iraq,251 Sierra Leone252 and the Iraqi Kurdistan government253 established registration duties for PMSCs seeking to operate on their territories. Afghanistan has
245 247 246 Caparini, Domestic Regulation, p. 171. Ibid., pp. 171 and 173. Act no. 27 of 2006, published in the Government Gazette no. 30477 (16 November 2007), s. 3. Note that, contrary to the US regulation procedures, the South African regulations aim also at controlling the sale of military or assistance services to non-state actors. See e.g. Caparini, Domestic Regulation, pp. 1735; Schneiker, National Regulatory Regimes, p. 411; B. OMeara Barrie, Private Military Firms and Mercenaries: Potential for Liability under International Law (2005) 12 Tilburg Foreign L Rev 342. See Schneiker, National Regulatory Regimes, p. 416, observing that the South African minister charged with the elaboration of the Act declared that his country will not be able to oversee the activities of its PSMCs without the help of journalists. US provisions are little better. Even though embassy ofcials should exercise general oversight no specic or personalized clauses exist. On the contrary, most US diplomats consider such control as inconsistent with their job. See also Peter Singer, War, Prots, and the Vacuum of Law: Privatized Military Firms and International Law (2004) 42 Columbia J Transnl L 535. See Cottier, Elements for Contracting and Regulating PMSCs, p. 647. See the Coalition Provisional Authority Memorandum Number 17, Registration Requirements for Private Security Companies, CPA/MEM/26 June 2004/17. Section 19 of Sierra Leones 2002 National Security and Central Intelligence Act supplement to the Sierra Leone Gazette, vol. CXXXII, no. 42, 4 July 2002. See the 2005 Private Security Company (PSC) Requirements for Iraq Kurdistan, www.pscai.org/Docs/Foreign_Security_Company_Guidelines.pdf.

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250 251

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attempted to regulate PMSCs with little success254 and President Karzais government has made repeated (abortive) attempts to ban the industry altogether from the autumn of 2010 onward. Beyond issues related to the extraterritorial reach of domestic regulatory measures, both national legislation and licensing suffer due to the capacity of PMSCs to relocate to other states in order to benet from more lax regulations elsewhere.255 In order to overcome that weakness, another third option for domestic regulation relies on the content of PMSC contracts with their clients. Indeed, in order to bind PMSCs by the rules of IHL, one could well imagine a clause in the contract requiring PMSCs to respect IHL and ensure such respect by their staff members.256 An IHL violation on the part of the PMSC would then lead to termination of the contract. According to Michael Cottier:
Contract provisions are a simple tool for regulating contractor behavior with direct impact. The contract species the terms of conduct and

254

255

See S. Brooking and S. Schmeidl, When Nobody Guards the Guards: The Quest to Regulate Private Security Companies in Afghanistan (2008) 26 Sicherheit und Frieden/ Security and Peace 20814. See also Emanuela-Chiara Gillard, Business Goes to War: Private Military/Security Companies and International Law (2006) 88 Intl Rev Red Cross 52572, 558; Cottier, Elements for Contracting and Regulating PMSCs, p. 647. See E. L. Gaston, Mercenarism 2.0? The Rise of the Modern Private Security Industry and its Implications for International Humanitarian Law Enforcement (2008) 49 Harvard Intl LJ 241 recognizing that: Tougher domestic regulation (or prohibition) by individual states but not by all states may create a race to the bottom; because PMSCs can be based out of almost anywhere, they could easily move to the state with the least stringent domestic regulations with little disruption to their business. Without coordinated effort, the home states and client countries cannot hope to constrain the misconduct of businesses that operate thousands of miles away in zones of weak legal accountability. See also B. Perrin, Promoting Compliance of Private Security and Military Companies with International Humanitarian Law (2006) 88 Intl Rev Red Cross 616, where the author notes that relocation can lead to the Charter shopping phenomenon by PMSCs; Singer, War, Prots, and the Vacuum of Law, p. 535 who identies, beyond the option of relocation, another escape option for those PMSCs, i.e. to take on a new corporate structure or name whenever they are legally challenged. The author concludes that The result is not only that national legislation is a difcult long-term solution, but also that attempts to eliminate the rms tend only to drive them and their clients further underground, away from public oversight. Ibid. Though circumscribing her analysis to contracts between private companies and states, Laura Dickinsons identication of nine contracting practices is instructive about how far can a contract be drafted so as to ensure better implementation. Such practices include: (1) incorporating public law standards in contractual terms. L. A. Dickinson, Public Law Values in a Privatized World (2006) 31 Yale J Intl L 383426, 401.

256

348 legal means through which pmscs are bound by ihl

employment to which the contractor, in order to be competitive and win the bid, must agree and demonstrate capability of compliance. Considered contract awarding procedures, terms and compliance monitoring may therefore contribute to choosing the best services and promoting the application of the standards desired and accountability by private security and military companies, including with regard to international human rights law and international humanitarian law.257

The incentives for the clients of PMSCs to incorporate such clauses will differ from one to another depending on their nature, i.e. as states, armed groups, companies or international/regional organizations. In the eventuality the PMSC client is a state, the rationale for this type of contractual clause could be grounded in common Article 1 of the 1949 Geneva Conventions, by virtue of which states parties have to respect and ensure respect of the conventions. As such, a provision inserted by a state into a contract with a PMSC requiring the latter to respect IHL could be an aspect of a states implementation of Article 1 common.258 Thus, contracts used in this way can be a tool to publicize the privatization relationship,259 ensuring that states do not escape their IHL obligations by outsourcing. Some regional initiatives have occurred which advise states to rely on certain criteria for selecting private companies and on best practices for entering into contractual relationships with them.260 For example, the European Confederation of Security Services and Uni-Europa, concerned

257 258

Cottier, Elements for Contracting and Regulating PMSCs, p. 640. States must not only themselves respect the provisions of the Conventions, but are also obligated to ensure that all those under their authority or jurisdiction do not fall foul of said provisions. Where PSCs/PMCs are active in times of international armed conict, the onus is therefore on states to give effect to this provision, and to ensure that PSCs/PMCs operate within the connes of IHL. J. Williamson, Private Security Companies and Private Military Companies under International Humanitarian Law in S. Gumedze (ed.), Private Security in Africa: Manifestation, Challenges and Regulation, Monograph 139 (Institute for Security Studies, 2007), p. 93. See also Pictet, Commentary GC I, pp. 247; Switzerland, Rapport du Conseil fdral sur les entreprises de scurit et les enterprises militaires prives (2 December 2005), p. 678. Common Art. 1 applies to international and non international armed conict as recognized by the ICJ. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ Rep 14, at 220 (Nicaragua). Dickinson, Public Law Values, p. 401. In the same vein, Jody Freeman notes that there is some evidence suggesting that contracting out may extend public norms to private actors and lead to reregulation rather than deregulation. J. Freeman, Extending Public Law Norms Through Privatization (2003) 116 Harvard L Rev 1286. Cottier, Elements for Contracting and Regulating PMSCs, pp. 6401.

259

260

pmsc s

AS NON - STATE ACTORS

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with private guarding services of private companies, drew up guidelines for national authorities for their contracts with such companies.261 These types of guidelines were also adopted by the South Eastern and Eastern Europe Clearinghouse for the Control of Small Arms and Light Weapons, i.e. the Sarajevo Client Guidelines for the Procurement of Private Security Companies.262 However, the incorporation of IHL obligations into contracts with PMSCs does not yet seem to constitute a broad state practice. As Laura Dickinson observed:
of the sixty publicly available Iraq contracts, none contains specic provisions requiring contractors to obey human rights [norms] The agreements between the U.S. government and CACI to supply military interrogators starkly illustrate this point The orders specify only that CACI would provide interrogation support and analysis work for the U.S. Army in Iraq [They] do not expressly require that the private contractor interrogators comply with international human rights law or humanitarian law rules such as those contained in the Torture Convention or the Geneva Conventions.263

As argued above, drawing a parallel with the doctrine of the implied powers of international organizations may shed some light on some obligations incumbent upon PMSCs.264 Thus, if a government contract empowers a PMSC to participate in hostilities, the latter will implicitly be bound by the rules of IHL. The matter becomes more complicated when the PMSC is contracted by a non-state actor, such as another company or a non-state armed group. Indeed, no direct and clear obligation exists for those non-state actors to ensure respect of the Geneva Conventions, and they are unable to confer international legal personality. In the case of armed groups, one could claim that, as armed groups in non-international armed conicts are bound to respect IHL by virtue of common Article 3 of the Geneva Conventions and the 1977 Additional Protocol II,265 and as common
261

262

263 264 265

CoESS and Uni-Europa, Selecting Best Value: A Manual for Organizations Awarding Contracts for Private Guarding Services (10 June 1999), www.coess.org/documents/ public_tendering.pdf. 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 (2006), www.css.ba/docs/the%20sarajevo%20client% 20guidelines.pdf. Dickinson, Public Law Values, pp. 4034 (references omitted). See above section A 1.2. Concerning the binding character of IHL on armed groups, see e.g. Cassese, Status of Rebels, p. 424; Momtaz, Le Droit international humanitaire, p. 70; Clapham, Human Rights Obligations of Non-state Actors, pp. 2759.

350 legal means through which pmscs are bound by ihl

Article 1 has been found by the ICJ to apply equally to non-international armed conicts,266 they should also ensure that entities working on their behalf are bound by the same obligations, and thus respect IHL. Such logic should give incentives to armed groups to include a respect IHL clause in their contracts with PMSCs, should they exist.267 Finally, an international organization such as the UN could contract PMSCs to perform specic tasks. While the UN is not party to IHRL and IHL treaties, the principles embodied in that law constitute one of the core values of the UN. The UN should consider itself bound to include respect IHL clauses in its contracts with PMSCs. The UN Charter recognizes international law and humanitarian values as being enshrined within its core principles, even though it does not explicitly mention IHL.268 When contracting PMSCs for support in any capacity, the UN should require them to respect those principles. Should the UN somehow engage a PMSC as part of a peace force in a peace operation, there is no reason in principle why the UN Secretary-Generals Bulletin on Observance by United Nations Forces of International Humanitarian Law would not apply to such forces.269 In sum, the three options for domestic regulation offer an interesting range of measures to bind PMSCs by IHL and regulate and monitor their respect. However, due to their weak extraterritorial reach and possibilities for PMSCs to circumvent them, those three avenues are not mutually exclusive but should rather be envisaged on a complementary basis, thus reinforcing domestic regulation of PMSCs.

PMSCs as the sum of their individual employees

PMSCs are not only legal entities, but they consist of the sum of individuals working for them. Thus, the primary means through which PMSCs can be bound by IHL relies on its direct applicability to those individuals. Nowadays, there is consensus in scholarly writings that IHL creates obligations for all individuals in times of armed
266 267

268 269

Nicaragua, at para. 220. In any case, PMSC staff members working for armed groups would be bound by the provisions of IHL to the same extent as armed groups members qua individuals by virtue of the direct participation in hostilities doctrine. See below section B on the direct applicability of IHL rules to individuals. See the preamble of the UN Charter and Arts. 1(1), 55 and 56. UN Secretary-General, Observance by United Nations forces of International Humanitarian Law, UN Doc. ST/SGB/1999/13 (6 August 1999).

pmsc s as the sum of their individual employees

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conicts.270 However, the majority of scholars usually tend to take this afrmation for granted, without further developing it and explaining the legal reasoning behind this conclusion. This section will endeavour to analyse in more detail how IHL binds individuals. A rst section will thus focus primarily on individuals as addressees of IHL. Further explanations will nonetheless be required to understand how a branch of international law, as a law created by states, can have such a binding character upon private individuals. Understandably, relying on an individual-based analysis offers excellent prospects for determining the accountability of PMSCs in this eld of international law: each staff member of a PMSC will appear to be bound by IHL qua individuals:
Regardless of their status, be they combatants, civilians accompanying the armed forces or ordinary civilians, like all persons in a country experiencing armed conict the staff of PMCs/PSCs [i.e. private military companies/private security companies] are bound by international humanitarian law and may face individual criminal responsibility for any serious violations they may commit or have ordered to be committed.271

IHL: an inter-state law with individuals as addressees

Do the 1949 Geneva Conventions, for instance, constituting treaties drafted by states and to which only states can become parties, imply rights and duties for individuals such as PMSC personnel? While this question would have traditionally been answered in the negative,272 no one can nowadays legitimately claim that individuals are not addressees of IHL as soon as an armed conict is deemed to exist. Accordingly, if,
270

271 272

See, inter alia: R. Provost, International Human Rights and Humanitarian Law (Cambridge University Press, 2002), p. 98. See also Frits Kalshoven, Applicability of Customary International Law in Non-International Armed Conicts in A. Cassese (ed.), Current Problems of International Law (Milan: Giuffr, 1975), p. 271; David, Principes de droit des conits arms, 4th edn, pp. 24850; Marco Sassli and Antoine Bouvier, How Does Law Protect in War? (Geneva: ICRC, 2006), esp. p. 120; Ctia Lopes and Nolle Qunivet, Individuals as Subject of International Humanitarian Law and Human Rights Law in R. Arnold and N. Qunivet (eds.), International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (The Hague: Martinus Nijhoff, 2008), p. 218; Antonio Cassese, International Law, 2nd edn (Oxford University Press, 2005), p. 144. Gillard, Business Goes to War, pp. 5412. The traditional view being that only states incur international responsibility under international law since that law is made by states.

352 legal means through which pmscs are bound by ihl

now, humanity has rights as against the state, it also has rights vis--vis humankind itself. Humanity expects individuals to respect the humanity of others, because every violation of the rights of others disregards the rights of humanity itself. This notion explains the horizontal application of humanitarian law in inter-individual relations.273 The fact that IHL considers individuals as addressees of its rules can be explained and demonstrated on the basis of one major argument corroborated by two factors: the principle of effectiveness, buttressed by the repression of violations of IHL and the obligation of states to disseminate the rules of IHL.274

1.1 From abstract entities to individuals as direct addressees: IHL and the principle of effectiveness One has to distance oneself from the traditional idea that only states are bound by international treaties and customs. States are indeed abstract entities275 that have no concrete possibility to violate rules of IHL; only individuals have that capacity.276 State responsibility can only be engaged either when persons attributable to them act or when they do not take every possible measure to prevent violations of international norms or suppress and repress them. This individual-centered approach is explained well by Schneeberg:
Since we assume that actually the word state means an instrument of law established by the community for the preservation of order, the State can only do what is within the scope of law. Only an individual can act in violation of the law. Therefore, it is not the State which has to be put on trial for the crime of the individual. It should fulll its function to determine the responsibility of the criminal and impose on him the
273

274

275

276

G. Cohen-Jonathan, Chapitre 12 Droits et devoirs internationaux des individus in D. Alland (ed.), Droit international public (Paris: PUF, 2000), p. 574 (our translation). David, Principes de droit des conits arms, 4th edn, p. 251: The directly applicable nature of many rules of the law of armed conicts is conrmed: [1] implicitly in the obligation to disseminate its contents to members of the armed forces as well as to the civilian population; [2] explicitly in the fact that civilians may be convicted for violations of the law of armed conicts (our translation). Recall the tribunals oft-quoted phrase, Crimes against international law are committed by men, not by abstract entities. IMT, Judgment and Sentences, October 1, 1946, repr. in (1947) 41 AJIL 172, 221. An exception is made in instances where the individuals act will be attributable to the state by way of rules on state responsibility (see ILC ASR with Commentaries 2001 and Ch. 2 above) or where the state as an independent entity is directly addressee of the international rule (e.g. the obligation of dissemination of IHL norms directly addresses states, and not individuals. See below section 3.2).

pmsc s as the sum of their individual employees

consequences of his action which violated the law of nations. That means that the State is an instrument in the enforcement of the principles of international law.277

353

Furthermore, the fact that individuals are addressees of IHL rules is warranted by the aim this law is dedicated to pursuing: the alleviation of human suffering during armed conicts, by way of protecting civilians and those who nd themselves in the power of a party to the conict. That purpose implies that anyone engaged in the conict in any manner whatsoever is duty-bound to respect IHL. This conclusion is logical at rst sight regarding those having the status of combatants by virtue of Article 4 GC III or Article 43 AP I or who can be termed ghters due to their participation in hostilities whether on a continuous or sporadic basis.278 Indeed, if combatants and ghters were not the primary addressees of the rules of IHL, it would merely amount to an illusory set of rules with no practical inuence. Therefore, Article 44(2) AP I explicitly states that Combatants are obliged to comply with the rules of international law applicable in armed conict. However, the applicability of IHL to civilians may not appear as evident, as those civilians be they protected persons under the terms of Article 4 GC IV or not generally constitute the victims of armed conicts rather than participants in them. This observation is directly linked to the argument militating in favour of and conrming the application of IHL to all individuals: the principle of effectiveness. Many if not most contemporary conicts do not resemble some of the international armed conicts of the past, where the two parties were clearly identiable and based on clear front lines. Obviously, it is not only state armed forces that participate in armed conicts: sometimes conicts can take on such proportions that the whole country, or the whole population is concerned by the conict, not only as victims but also as participants. This may be even truer in non-international armed conicts. Therefore, IHL must apply to every individual, regardless of whether the person is formally a combatant/ ghter or a civilian. As Kalshoven stated, [i]t is an obvious fact that its real implementation depends on those thousands or even millions of people who are involved in the armed conict, whether as members of
277

278

Ernst Schneeberg, The Responsibility of the Individual under International Law (19467) 35 Georgetown LJ 4823. For the applicability and binding character of IHL to combatants and ghters, see Ch. 4 below.

354 legal means through which pmscs are bound by ihl

the armed forces, as irregular ghters, or as civilians.279 Article 18 of the rst 1949 Geneva Convention is illustrative of the reach of IHL as it expressly requires the civilian population to respect wounded and sick collected by it and refrain from violent conduct against them. In sum, what matters is the fact that all individuals can potentially infringe rules of IHL, and that therefore all shall be bound to respect those rules. Kolb and Hyde conclude on the ratione personae scope of IHL applicability as follows:
There is thus no enumerated category of subjects able to be bound by the LOAC [law of armed conicts]. The criterion is that of effectiveness: he or she who participates in the conict or he or she who does acts relevant to the LOAC, such as employing prisoners of war in his or her industrial plants, contrary to the conditions set out in Geneva Convention III, is automatically bound by that law. There is no personal limitation; the only relevant considerations are material acts at stake. In this sense, the LOAC may apply to anybody and hence potentially to everybody.280

In sum, as soon as an armed conict does exist, for would-be perpetrators of violations, IHL can be viewed as a sword of Damocles: there is no problem as long as all individuals respect its provisions, but as soon as one individual infringes one of its rules, he will be liable for his conduct.

1.2 Repression of IHL violations The repression of IHL violations is the most visible manifestation of the binding character of that law upon all individuals:
individuals have long been direct subjects of a sanctioning international law. This quality is not a privilege. Instead of being endowed with rights, in that capacity they have only obligations, the non-respect of which engages their criminal responsibility.281

In the case of a violation committed by a PMSC staff member or contractor, the latter may engage his individual criminal responsibility, as any other individual. However, while violations of some provisions of
279

280

281

Kalshoven, Applicability of Customary International Law, p. 271. In the same sense, see Cassese, International Law, p. 145: those obligations [i.e. of IHL] are incumbent on individuals both when they act as State ofcials as well as, under certain conditions, when they engage in the prohibited conduct qua individuals, that is, in a private capacity. Robert Kolb and Richard Hyde, An Introduction to the International Law of Armed Conicts (Oxford/Portland: Hart Publishing, 2008), p. 90. Nguyen, Daillier and Pellet, Droit international public, p. 650 (our translation).

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humanitarian treaties and rules of customary IHL have clearly been criminalized on the international plane, international humanitarian instruments have remained silent as to the criminalization of other provisions. Is the consequence of this that individuals and thus PMSC personnel are only bound by certain categories of IHL norms grave breaches and war crimes but not by others? 1.2.1 Criminalized IHL norms Individual criminal responsibility directly ows from the criminalization of the norms. It can either be provided directly by an IHL treaty (grave breaches of the Geneva Conventions or Additional Protocol I) or by customary international law (war crimes).
1.2.1.i Grave breaches of the Geneva Conventions and Additional Protocol I The 1949 Geneva Conventions are the rst IHL conventions to provide explicitly for the criminalization of certain grave violations of their provisions, the grave breaches. The substantial scope of the grave breaches is dened in Articles 50, 51, 130 and 147 of the four conventions and encompasses acts committed against persons or objects protected by the respective conventions. Their repression is required by Articles 49, 50, 129 and 146 on the basis of the principle aut dedere aut judicare. Articles 11(4) and 82(2)(4) AP I have extended the scope of grave breaches to certain acts forming part of the conduct of hostilities, and contains an express reference to willful omissions.282 Repression of the grave breaches is governed by Articles 85(1) and 86 AP I, the former specically referring to the system of repression developed by the four Geneva Conventions. No similar provisions exist for non-international armed conicts in Additional Protocol II. Boelaert-Suominen argues that this is mainly due to the fact that [t]he international armed conict requirement was a necessary limitation on the grave breaches system in light of the intrusion on State sovereignty that such mandatory universal jurisdiction represents.283 Grave breaches are indeed usually understood as violations of IHL against protected objects or persons, and no such protected status exists in non-international armed conicts. On this basis, the International Criminal Tribunal for the Former Yugoslavia
282

283

Sonja Boelaert-Suominen, Grave Breaches, Universal Jurisdiction and Internal Armed Conict: Is Customary Law Moving Towards a Uniform Enforcement Mechanism for All Armed Conicts? (2000) 5 J Conict & Security L 71. Ibid., p. 72.

356 legal means through which pmscs are bound by ihl

(ICTY) considered grave breaches to pertain solely to the eld of international armed conicts.284 Thus, the envisaged grave breaches repression system of the conventions warrants the conclusion that all individuals are bound by IHL. However, it has been argued that the construction of the penal articles which require the High Contracting Parties to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches are not selfexecuting.285 As such, the repression of grave breaches would be left to the enactment of further legislation by states, and IHL at least the provisions on grave breaches would not be directly applicable that is to say directly binding as such upon individuals. That understanding has nonetheless been dismissed by different scholars who argue that the explicit reference to enacting legislation in Articles 49, 50, 129 and 146 simply takes into consideration the distinct positions of domestic legal systems, rather than being a manifestation of the parties intent to render those provisions non-self-executing:

284

285

Tadi (AC Decision on Jurisdiction 1995), at paras. 7984. It is worth emphasizing, however, that the tribunal contemplated a possible nascent opinio iuris supporting the existence of grave breaches in non-international armed conicts. Ibid., at para. 83. In two subsequent cases, chambers of the tribunal upheld (to a certain extent) that notion regarding the applicability of the grave breaches regime in non-international armed conicts. Prosecutor v. Delali and ors (Trial Chamber Judgment) IT-9621-T (16 November 1998), at para. 202; 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 Arts. 2 and 3) IT-9514/2-PT (2 March 1999), at para. 15. See Boelaert-Suominen, Grave Breaches, Universal Jurisdiction and Internal Armed Conict, pp. 63 (n. 3) and 77. Recognizing grave breaches as existing also in non-international armed conicts would lead to its paroxysm, blurring the distinction between international and non-international armed conicts. However, one might legitimately doubt that customary international law has already attained this point. In 1998, the Rome Statute maintained the traditional position that differences continue to exist between international and non-international armed conicts, dividing war crimes based on this dichotomy (Arts. 8 (a) and (b) versus Arts. 8(c) and (e)). Whether grave breaches can nowadays be considered as customary law of noninternational armed conicts remains to be seen. Some courts in the United States, for instance, have qualied the Geneva Conventions as entirely not self-executing due to the specic call for implementing legislation contained in the grave breaches articles. See e.g.: Tel-Oren v. Libyan Arab Republic, 726 F 2d 774, 809 (DC Cir 1984); Linder v. Calero Portocarrero, 747 F Supp 1452, 1463 (SD Fla 1990), revd, 963 F 2d 332 (11th Cir 1992). Those cases are discussed in D. Jinks and David Sloss, Is the President Bound by the Geneva Conventions? (2004) 90 Cornell L Rev 1256.

pmsc s as the sum of their individual employees

The phrase any legislation necessary is intended to accommodate differences between the domestic legal systems that always require implementing legislation for treaties (dualist systems) and domestic legal systems that never require implementing legislation for treaties (monist systems). The language does not actually manifest a specic intention for the grave breaches provisions to be non-self-executing. Rather, it manifests the treaty-makers recognition that broad-based multilateral treaties must be drafted in a manner that accounts for the variety of domestic legal systems in which the treaty is to be implemented.286

357

Therefore, far from relieving states of their obligations, a domestic implementation clause merely reinforces the customary international law rule that a state which has contracted a valid treaty is bound to take every measure to give full effect to the treaty.287 Accordingly, one can argue that the criminalization of grave breaches is self-executing and that the requirement for further legislation is concerned solely with the penal sanctions that a national state will have to set down for those crimes.288 The customary character of the repression of grave breaches cannot, nowadays, legitimately be called into question. Grave breaches constitute a category of war crimes289 and have been recognized as pertaining to the realm of customary international law provisions by the ICRC study on customary law.290 Furthermore, their inclusion as a specic category of violations of the laws and customs of international armed conicts in the Statute of the ICC may be considered as a codication of customary international law.291 Many would argue that prohibitions of such grave
286

287

288

289

290 291

Jinks and Sloss, Is the President Bound by the Geneva Conventions?, p. 126. See also in the same vein Ronda Cress, Automatic Rights or Permissive Ones? The Status of Articles 4 and 5 of the Third Geneva Convention relative to the Treatment of Prisoners of War (2005) 74 U Cincinnati L Rev 208. Yuji Iwasawa, The Doctrine of Self-executing Treaties in the United States: A Critical Analysis (1986) 26 Virginia J Intl L 660. See below section B 2.1 for an analysis on the self-executing nature of IHL treaty provisions. That assertion was at least recognized in 1977 by Art. 85(6) AP I, which states that [w]ithout prejudice to the application of the Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes. See Rules 156 et seq. of the study. See Art. 8(2)(a) of the 1998 Rome Statute. Note, however, that only the grave breaches of the 1949 Geneva Conventions are embodied in this article, whereas only the grave breaches of Additional Protocol I were inserted into Art. 8(2)(b) (other serious violations of the laws and customs applicable in international armed conict). According to berg: This choice stemmed from the difference between the almost universal ratication of the Geneva Conventions and the smaller number of states that had accepted Protocol I. The Rome Conference thus showed that the grave breaches provisions of the

358 legal means through which pmscs are bound by ihl

violations are therefore binding upon all individuals by virtue of the direct applicability of customary IHL.292 Even apart from and beyond that customary character, no one argues that the ICC could not prosecute grave breaches committed on the territory of a state party that has not adopted the necessary implementing legislation, which would be the logical consequence of the claim that those provisions are not self-executing. In conclusion, the grave breaches regime illustrates the consequences of the binding character of IHL upon individuals. Indeed, if an individual violates one of the conventions grave breaches provisions, states have a duty to either prosecute or to extradite that person on the basis of the universal jurisdiction provided for by the conventions. Therefore, the states duty stems from the binding character of IHL upon individuals themselves. This conclusion is obviously also valid when it comes to grave breaches committed by PMSC personnel. However, legitimate questions can be raised when a humanitarian law treaty is silent as to the criminalization of certain prohibitions as it is the case for breaches of the Geneva Conventions and Additional Protocol I other than grave breaches, and breaches of Additional Protocol II. Meron argues that [w]hen treaties fail to clearly dene the criminality of prohibited acts, the underlying assumption has been that customary law and internal penal law would supply the missing links.293
1.2.1.ii War crimes Prior to the 1949 Geneva Conventions, IHL treaties did not attach individual criminal responsibility to violations of their provisions; in line with the traditional state-centered approach of international law, states were responsible for violations. Only Article 1 of the 1907 Hague Convention IV provided an obligation for states to instruct their military personnel, which implied a duty to enforce those instructions by appropriate disciplinary or criminal sanctions in domestic legal
1949 generation, those of the 1977 generation, and provisions relating to other war crimes enjoyed quite different levels of acceptance among states. Marko Divac berg, The Absorption of Grave Breaches into War Crimes Law (2009) 91 Intl Rev Red Cross 1689. See also M. Milanovi, Is the Rome Statute Binding on Individuals? (And Why We Should Care) (2011) 9 JICJ 2552, esp. 2738. Milanovi provides few reasons why customary law (in particular IHL and international criminal law) may be binding on individuals, regardless of their subjectivity under international law. One of these is purely the fact that it would be impossible to obtain the opinio juris of some 6 billion human beings to say that they are bound by custom qua individuals. See Milanovi, Is the Rome Statute Binding on Individuals?, p. 39, n. 56. Theodor Meron, International Criminalization of Internal Atrocities (1995) 89 AJIL 563.

292

293

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orders.294 Individual responsibility was intended in some rare instances,295 but no real criminalization was made of those violations until the end of the Second World War and the establishment of International Military Tribunals at Nuremberg and the Far East (Japan). For the rst time it was explicitly and unambiguously recognized that crimes against international law are committed by men, not by abstract entities.296 Violations of IHL were thus considered as war crimes and their criminalization owed from customary international law. Despite the fact that no explicit mention of war crimes was made in the 1949 Geneva Conventions,297 post-Second World War trials afrmed that serious violations of IHL had to be repressed, therefore underscoring that individuals had to respect those rules. Nonetheless, it was only with the establishment of the ad hoc tribunals that the international community focused on war crimes and dened
294

G. H. Aldrich, Individuals as Subjects of International Humanitarian Law in J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century (The Hague: Kluwer, 1996), p. 852. See in this sense Schneeberg, Responsibility of the Individual, p. 483: Belligerents are bound to issue instructions to their armed forces consistent with the regulations respecting the laws and customs of war on land. The State does not have to obey these rules. It is unable to violate them or obey them. But it has to exercise control over each individual member of the army to assure that his actions are in accord with these rules. If an individual violates a provision of the Hague Convention respecting the laws and customs of war on land, only he is responsible under international law. The States responsibility is the prosecution of the law-breaker. See e.g. the 1919 Treaty of Versailles, Arts. 227 and 228. See 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. 584. IMT, Judgment and Sentences (1947) 41 AJIL 172, 221. The 1949 Geneva Conventions focused on the criminalization of grave breaches. However, the fact that other serious violations of IHL were not explicitly criminalized by the text of the conventions does not imply that those breaches were not criminalized at all. As Meron argues, Just because the Geneva Conventions created the obligation aut dedere aut judicare only with regard to grave breaches does not mean that other breaches of the Geneva Conventions may not be punished by any state party to the Conventions. (Meron, International Criminalization, p. 569). Indeed, Arts. 49(3), 50(3), 129(3) and 146(3) of the 1949 Geneva Conventions call for the suppression of all acts contrary to the provisions of the conventions other than the grave breaches. States parties have thus a duty to repress those other violations. Art. 86 AP I restates that obligation almost verbatim. Interestingly, moreover, Art. 85(5) AP I explicitly mentions that grave breaches of these instruments [i.e. the four Geneva Conventions and Additional Protocol I] shall be regarded as war crimes. Additional Protocol I is the rst written IHL instrument to envisage explicitly that a wider category of IHL obligations (war crimes) exists beyond grave breaches.

295

296 297

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them.298 The most notable decision is without doubt the Tadi case, whose inuence on subsequent case law has been decisive. Having to determine whether Article 3 of the ICTY Statute could be applicable in non-international armed conict, the Appeals Chamber laid down four constitutive elements of war crimes: (i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met; (iii) the violation must be serious, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim; (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule. Contrary to the claims of the appellant, the Chamber afrmed that customary IHL could entail the criminalization of certain serious violations, even if those acts were not explicitly criminalized in treaty law.299 Basing itself upon the Nuremberg logic, the Chamber considered that serious violations of IHL of non-international armed conict also entailed individual criminal responsibility.300 The criminalization of Article 3 common to the Geneva Conventions and principles governing non-international armed conicts was thus afrmed on the basis of customary international law.301 The UN Security
298

299 300

301

Indeed, the obligation on states parties to repress breaches of the Geneva Conventions did not function as intended. When the international community had to face the atrocities committed in the former Yugoslavia and Rwanda, it decided to act through the United Nations in establishing international tribunals in order to bring those persons responsible of the most heinous acts to trial. Tadi (AC Decision on Jurisdiction 1995), at para. 94. Applying the foregoing criteria to the violations at issue here, we have no doubt that they entail individual criminal responsibility, regardless of whether they are committed in internal or international armed conicts [M]any elements of international practice show that States intend to criminalize serious breaches of customary rules and principles on internal conicts. Ibid., at paras. 12930. The Chamber thus relied on military manuals (ibid., at para. 131), national legislation (ibid., at para. 132), UN Security Council resolutions (ibid., at para. 133), the Criminal Code of the Republic of Yugoslavia itself (ibid., at para. 134) and agreements between the parties and made under the auspices of the ICRC (ibid., at para. 136). Ibid., esp. at para. 134: All of these factors conrm that customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conicts, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife. Among the prolic subsequent jurisprudence reafrming the criminalization of common Art. 3 and other conventional or customary rules applicable in non-international armed conicts, see: Prosecutor v. Akayesu

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Council went even further in adopting the Statute of the International Criminal Tribunal for Rwanda, as its Article 4 considers not only provisions of Article 3 common as criminalized rules, but also those embodied in Additional Protocol II.302 The two ad hoc tribunals thus made crystal clear that individuals were bound by IHL in all circumstances that is, in international or noninternational armed conicts. This has been conrmed by the Statute of the ICC, Article 8 of which lists violations of IHL criminalized in international armed conicts303 and in non-international armed conicts.304 Despite the fact that the statute is not universally binding, the war crimes provisions may be said to represent a codication of customary international law.305 The Commentary to the ICRC study on customary IHL takes up, to a certain extent, the list of war crimes set out in the Rome Statute.306 Individuals are bound by IHL, as the repression of grave breaches and war crimes in international and non-international armed conicts
(Appeals Chamber Judgment) ICTR-964-A (1 June 2001), at paras. 4434; Aleksovski, at para. 228; Prosecutor v. Jelisi (Trial Chamber Judgment) IT 9510-T (14 December 1999), at para. 34; Prosecutor v. Blaki (Trial Chamber Judgment) IT-9514-T (3 March 2000), at para. 176. Art. 4 ICTR Statute reads as follows: The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. It should be noted, however, that Rwanda has been a party to Additional Protocol II since 19 November 1984, which very likely inuenced the UNSC in its drafting of the ICTR Statute. The criminalization of rules of IHL afrmed by the statutes of the ad hoc tribunals binds UN member states, as they were entrenched in resolutions adopted by the Security Council under its Chapter VII powers. See David, Principes de droit des conits arms, 4th edn, p. 751. Art. 8(2)(a) for the grave breaches of the Geneva Conventions and Art. 8(2)(b) for the other serious violations of the laws and customs applicable in international armed conicts. Art. 8(2)(c) for the serious violations of common Art. 3 and Art. 8(2)(e) for the other serious violations of the laws and customs applicable in armed conicts not of an international character. The distinction between criminalized rules pertaining to the realm of international and non-international armed conicts demonstrate well that the international community does not consider rules of international armed conicts to have totally inuenced those of non-international armed conict. See e.g. Moir, The Law of Internal Armed Conict, pp. 1637 and David, Principes de droit des conits arms, 4th edn, p. 760. See Rules 156 et seq. in Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Customary International Humanitarian Law, 2 vols. (Cambridge University Press, 2005), vol. 1.

302

303

304

305

306

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demonstrates. Accordingly, this is so regardless of whether the national legal system within which individuals live contains a similar or the same obligation (translated into national legislation).307 The personnel of PMSCs are thus bound to respect those humanitarian provisions; otherwise they will be liable as individuals for war crimes or grave breaches. However, the fact that only serious violations are criminalized internationally on the basis of customary or conventional law does not preclude individual responsibility for those less serious infringements of IHL. 1.2.2 Non-criminalized provisions of IHL: a matter of domestic law Beyond those IHL rules criminalized either customarily or conventionally, the four Geneva Conventions and their Additional Protocols contain many other humanitarian rules regulating the conduct of individuals in times of armed conict. The violation of those rules may seem to imply less serious consequences for victims, which precludes their consideration as war crimes, and therefore has not yet led to internationally recognized criminalization.308 However, the absence of international criminalization does not necessarily imply that such provisions are not binding upon individuals and that their repression will remain a dead letter. Accordingly, there may be breaches of the law of armed conict which do not themselves qualify as sufciently serious in nature to justify international condemnation but which still should be the subject of domestic proceedings.309 Two main arguments support this assertion. First of all, each of the four Geneva Conventions and Additional Protocol I call for the suppression of all breaches of their provisions.310 Contrary to the provisions on penal sanctions of grave breaches, that obligation resting on states parties may not necessarily require penal sanctions but may include administrative penalties.311 But in any case, repression is required: there is no
307 308

309

310

311

Cassese, International Law, p. 145. David, Principes de droit des conits arms, 4th edn, p. 764, para. 4.125: Toutes les violations du droit des conits arms ne sont pas riges en crimes de guerre. Seules, les violations les plus graves sont incrimines (emphasis added). C. Garraway, War Crimes in E. Wilmshurst and S. Breau (eds.), Perspectives on the ICRC Study on Customary International Humanitarian Law (Cambridge University Press, 2007), p. 386. See also David, Principes de droit des conits arms, 4th edn, p. 765, para. 4.126. Arts. 49(3), 50(3), 129(3), 146(3) respectively of the 1949 Geneva Conventions and Art. 85(1) AP I. Garraway, War Crimes, p. 388.

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doubt that what is primarily meant is the repression of breaches other than the grave breaches listed and only in the second place administrative measures to ensure respect for the provisions of the Convention.312 Therefore, the fact that some provisions of IHL are not criminalized internationally does not mean that those rules do not bind individuals: they ought to be deemed responsible for those infringements as well and are therefore bound to respect the rules in question in the rst place. Secondly, except in the case where the provision is uniquely addressed to state parties,313 rules of IHL are, in the rst place, addressed to individuals. As Schneeberg underscores:
The State does not have to obey these rules [i.e. the laws and customs of war on land]. It is unable to violate them. If an individual violates a provision of the Hague Convention respecting the laws and customs of war on land, only he is responsible under international law. The States responsibility is the prosecution of the law-breaker. The Geneva Convention expresses this idea unequivocally by binding each individual while the state is expected to provide the sanction in case of a violation of the rule.314

The obligation to address conduct contrary to the conventions illustrates that IHL is binding upon all individuals, even when the criminalization of those provisions is not explicitly provided by treaty law.

1.3 Dissemination of IHL States are under an explicit obligation to instruct their armed forces and the civilian population in IHL as widely as possible.315 This also ows
312 313

314 315

See e.g. Pictet, Commentary GC IV, p. 594 (emphasis added). This is typically the case, for instance, of rules on dissemination (Arts. 47, 48, 127 and 144 of 1949 Geneva Conventions, Arts. 83 and 87(2) AP I and Art. 19 AP II), on translation (Arts. 48, 49, 128 and 145 of the 1949 Geneva Conventions) and on penal sanctions to a certain extent (Arts. 49, 50, 129 and 146 of the 1949 Geneva Conventions and Art. 85(1) AP I). Schneeberg, Responsibility of the Individual, p. 483. Nonetheless, this obligation was originally circumscribed to states armed forces. Thus, Art. 1 of the 1907 Hague Convention IV provided that: The Contracting Powers shall issue instructions to their armed land forces which shall be in conformity with the Regulations respecting the laws and customs of war on land, annexed to the present Convention. While the 1929 Geneva Convention remains silent concerning any such obligation (J. 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. 614), the 1949 Geneva Conventions made a great step forward in this sense in recognizing that dissemination must address not only armed forces, but also the civilian population in its entirety. Arts. 47, 48, 127 and 144 thus call for the High Contracting Parties: to disseminate the text of the present Convention as widely as possible in their

364 legal means through which pmscs are bound by ihl

from their duty to respect and ensure respect for humanitarian law.316 The obligation to disseminate may also be seen as conrming that individuals are addressees of IHL and thus bound by its rules.317 As Kalshoven, discussing the obligation to disseminate IHL to the civilian population, emphasizes, This amounts to a recognition that it is they [i.e. the population of all states] who are the real actors in armed conicts, and that the issue at stake is their standard of behaviour rather than that of the ctitious entity called State.318 This obligation to disseminate has a dual goal: rst, to ensure that principles of IHL are known by the whole population of a country, already in time of peace, in order to alleviate human suffering in case of armed conict,319 and, secondly and consequently, to promote a spirit of peace.320 However, the obligation to disseminate IHL principles appears to be of varying binding scope: states parties have to instruct their armed forces in those principles but, when it comes to the population at large, the obligation is nuanced by the taking into consideration of states possibilities to do so. The ICRC Commentary sheds some further light on this obligation of dissemination to the population, by explaining that:
This requirement is, however, optional. It is not that the 1949 Diplomatic Conference thought it any less imperative to instruct civilians than to teach the military, but in certain countries with a federal structure public education is the responsibility of the individual federative States and not the central authorities. Some delegations, therefore, having a scrupulous regard for constitutional niceties which may be thought unfounded, considered that they must safeguard the freedom of decision of the regional authorities.321

316

317

318 319

320

321

respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to all their armed forces and to the entire population (emphasis added). See Art. 1 common to the Geneva Conventions and Pictet, Commentary GC III, p. 613, concluding that: If a Convention is to be properly applied, however, a thorough knowledge of it is necessary. David, Principes de droit des conits arms, 4th edn, p. 251, para. 1.222. For more details on the obligation of dissemination, see ibid., pp. 61923; Hilaire McCoubrey, International Humanitarian Law: The Regulation of Armed Conicts (Aldershot: Dartmouth, 1953), pp. 20510; Sassli and Bouvier, How Does Law Protect in War?, pp. 330 ff. Kalshoven, Applicability of Customary International Law, p. 271. As the Pictet Commentary emphasizes, men must be trained from childhood in the great principles of humanity and civilization. Pictet, Commentary GC III, p. 614. Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary to the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: ICRC, 1987), p. 967, para. 3381. Pictet, Commentary GC III, pp. 61415.

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Article 83(1) AP I recognizes the burden that the dissemination of the Geneva Conventions and Protocols rules to a states whole population can entail.322 However, it slightly reinforces its importance by deleting the terms if possible and calling on states to encourage the study thereof by the civilian population. Furthermore, dissemination is concerned with the provisions of the conventions and the protocol, and not only with the principles of these instruments.323 Whereas the obligation of dissemination forms part of the general provisions section of each convention, therefore constituting also an obligation in situations of non-international armed conicts falling within the scope of Article 3 common, Article 19 AP II constitutes the rst express mention of this obligation in the regulation of noninternational armed conicts324 and thus reinforces the importance of dissimination of IHL to the civilian population. The article calls for dissemination as widely as possible. As the Commentary underlines, the responsibility for such dissemination rests upon states in time of peace, but in the framework of a non-international armed conict, the responsibility shifts to both the government authorities and those responsible in the insurgent party and requires them to take all necessary measures for disseminating the contents of the instrument to those carrying responsibility under their authority, military personnel as civilians.325 Nowadays, the obligation to disseminate IHL has been conrmed to belong also to the realm of customary IHL.326

322

Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, p. 965, para. 3377: The ICRC was concerned to reinforce this obligation, and following the opinion of the experts on this point, removed the words if possible from the draft of Article 72, which was submitted on this point to the Diplomatic Conference. However, the arguments which had been raised in 1949 for the more modest wording were put forward again. A straightforward international obligation to provide instruction for the civilian population creates technical difculties for federal States in which responsibility for civilian education falls on regional, provincial or other authorities and not on central government. Moreover, some delegations did not see how the government of their country could provide such instruction to the entire population anyway. David, Principes de droit des conits arms, 4th edn, p. 620, para. 3.7. Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, p. 1487, para. 4904. Ibid., p. 1488, para. 4909. See Rules 1413 in Henckaerts and Doswald-Beck, Customary International Humanitarian Law.

323 324

325 326

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The general obligation to disseminate IHL not only conrms that individuals are bound by its rules, but it also means more precisely in our context that IHL must not only be disseminated to PMSC personnel when they are integrated into state armed forces (or armed groups in non-international armed conicts), but also when the PMSC is simply contracted by such primary addressees. In addition, states must disseminate IHL to PMSCs even when they are contracted by private entities. In any case, as this obligation is incumbent upon all states of the world already in peacetime, PMSCs personnel should be educated in the various rules of IHL just as any other individual, regardless of any potential future or current involvement in an armed conict. The obligation of dissemination thus intends to create a world where everyone would be aware of the scope of their international humanitarian duties, so as to ensure that no infringements of those obligations are committed in the event of an armed conict or, if so, that each individual acted in the knowledge of the prohibited nature of his/her conduct. *** While the result of this section, that IHL binds all individuals and consequently PMSC personnel as well should be convincing based upon the arguments above, it is appropriate to enquire into more technical legal reasons why and how it binds them. Individuals are usually regarded as pertaining to the domestic sphere of states and are therefore only subject to their domestic legislation. Therefore, how can one explain that international treaties or customs created and engendered by states can have any direct applicability to individuals?

2 The direct applicability of IHL to individuals

Some may wonder how a branch of international law, traditionally perceived as inter-state law, can have any binding effect directly upon individuals within a state. But, if individuals can be judged before international or national courts for their failure to respect rules of IHL, it implies that in the rst place IHL binds those individuals. The present section will therefore investigate the direct applicability of IHL through domestic law, based on two main axes its two main sources that will require some further consideration: rst, through treaty law, namely the Hague Conventions, Geneva Conventions and 1977 Additional Protocols (among others); and, secondly, via customary IHL.

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2.1 The direct applicability of IHL treaties Afrming that IHL by way of treaty law binds all individuals implies that the treaties in question enjoy some sort of direct applicability. However, for dualist systems such as the UK and Canada, which conceive international law and domestic law as two distinct legal orders, and thus always require the transformation of international law into domestic law, we do not need to inquire into the direct applicability of international treaties on individuals. In monist countries, on the other hand, IHL as a branch of international law applies directly in the domestic legal order.327 Even where international treaties are directly applicable in domestic law, however, that does not necessarily entail direct applicability to individuals as the self-executing character of those treaties must be assessed.328
2.1.1 The origins of the concept of self-executing treaties The doctrine of self-executing treaties has been developed over the years by extensive jurisprudence of domestic courts. The Foster and Elam v. Neilson case before the US Supreme Court is perhaps the best-known decision in this regard and is worth consideration. Having to decide whether the terms of a treaty ceding Florida to the United States could conrm previous grants accorded by Spain to the plaintiffs in West Florida,329 Chief Justice Marshall laid down the following denition of self-executing treaties:
327

328

329

On the monist and dualist systems, see e.g. E. Borchard, The Relation between International Law and Municipal Law (1940) 27 Virginia L Rev 13748; Malanczuk, Akehursts International Law, pp. 63 ff.; D. P. OConnell, The Relationship between International Law and Municipal Law (1960) 48 Georgetown LJ 431; Ignaz Seidl-Hohenveldern, Transformation or Adoption of International Law into Municipal Law (1963) 12 ICLQ 88; L. Wildhaber and S. Breitenmoser, The Relationship between Customary International Law and Municipal Law in Western Countries (1988) 48 ZaRV 169 ff. However, see Milanovi, Is the Rome Statute Binding on Individuals?, p. 41 for an argument that individuals (and groups) can be directly bound by treaty law independently of some type of self-execution. It was in fact the terms of Art. 8 of the treaty that were contentious in the Foster & Elam case. It provided that: all the grants of land made before the 24th of January, 1818, by His Catholic Majesty or by his lawful authorities in the said territories ceded by His Majesty to the United States shall be ratied and conrmed to the persons in possession of the lands to the same extent that the same grants would be valid if the territories had remained under the dominion of His Catholic Majesty (US Supreme Court, Foster & Elam v. Neilson, 27 US 2 Pet 253 (1829), at 310) (Foster & Elam). The Supreme Court had to determine whether this specic provision alone granted rights to the plaintiffs in conrming their title of property or whether such grants required further conrmation by Congress. Concerning this case, see Carreau, Droit international, pp. 5012; Carlos Manuel Vzquez, Doctrine of Self-executing Treaties (1995) 89 AJIL 695723, at 700.

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A treaty is, in nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished especially so far as its operation is infra-territorial, but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States, a different principle is established. Our Constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the Legislature whenever it operates of itself, without the aid of any legislative provision.330

A self-executing treaty is therefore one that does not need any transformation or incorporation into domestic law. Despite its international character, it operates with direct applicability in domestic law and therefore binds a states population qua individuals. Justice Marshall went further, examining whether the impugned provision of the treaty between Spain and the United States could be deemed self-executing. In order to do so, he relied on the intent-based doctrine, i.e. the intent of the parties to render a specic provision directly self-executing or not. Intent refers here to the nature of the obligations set out in the provision in question,331 and is therefore a matter of treaty construction.332 Justice Marshall observed that the wording of the provision envisioned a further act of the legislature as necessary to give effect to it.333 Thus, because of the executory character of the obligation, he dismissed the direct applicability self-executing nature of the article.334
330 331

Foster & Elam, at 314 (emphasis added). As David Sloss observes, intent is not to be understood here as direct intent but rather in its indirect remedial version. Such indirect remedial intent is to be assessed based upon the nature of the obligation as executed or executory: the sole criterion for distinguishing between executory and executed treaty provisions is the nature of the international legal obligation. If the treaty requires immediate performance, as a matter of international law, it is executed. A treaty provision is executory if, as a matter of international law, it obligates a party to accomplish a result in the future, some time after entry into force of the treaty, but neither requires nor prohibits any particular action immediately upon entry into force. David Sloss, Non-self-executing Treaties: Exposing a Constitutional Fallacy (2002) 36 UC Davis L Rev 21, 234 for the indirect remedial intent thesis. See also Carreau, Droit international, p. 502. Vzquez, Doctrine of Self-executing Treaties, p. 701. See Sloss, Non-self-executing Treaties. That conclusion was nonetheless revised by the court in US v. Percheman. By referring to the Spanish version of Art. 8 of the treaty, rather than the English one, the court found the provision to be executed and thus self-executing. US v. Percheman, 32 US 7 Pet 51 (1833); see also Sloss, Non-self-executing Treaties, pp. 201.

332 333 334

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Though the concept of self-executing treaty provisions belongs to constitutional law and not to public international law, the Foster and Elam denition of self-executing provisions is unavoidable in this regard, mainly due to its inuence on subsequent national proceedings, even outside the United States.335 Whereas it has usually been taken up verbatim, the jurisprudence has not been totally consistent concerning the criteria attached to the determination of the direct applicability. While a survey of the entire case law on this question is obviously not possible within the connes of this chapter, and while technically the question whether a certain provision of a treaty is or is not self-executing in a given country belongs to the domestic law of that country336 and not to international law, states with monist constitutional systems have adopted a certain conformity of views on this issue and US practice still remains important in particular for PMSCs as many of them are based in and are contracted by the United States. Four cases deserve further consideration as they concern the selfexecuting character of Geneva Convention III, namely Hamdan v. Rumsfeld, Hamdi v. Rumsfeld, United States v. Lindh and Al-Bihani v. Obama. 2.1.2 Subsequent interpretations of the notion of self-executing: selected cases relating to the 1949 Geneva Conventions Starting with the Hamdan case, Hamdan, a Yemeni national detained at Guantnamo Bay following his arrest in Afghanistan in 2001, was charged with conspiracy to commit various war crimes and was about to be judged before a military commission. He petitioned for a writ of habeas corpus in order to challenge the legality of his detention and the establishement of the military commissions.337 He argued that according to Article 5 GC III he should be presumed to be a prisoner of war (POW) and that under Article 102 GC III a POW must be tried by the same courts as US soldiers. The US government argued inter alia that the third Geneva Convention is not self-executing and does not give rise to a private cause of action.338 The US District Court for the District of Columbia dened a non-self-executing treaty based on three elements: (i) if it manifests an intention that it does not become effective as domestic
335

336 337 338

In this sense, see Carreau, Droit international, p. 501, stating about self-execution as developed by the Foster & Elam case that: depuis lors, elle a t reprise de faon quasiuniverselle aussi bien par les tribunaux de lordre interne que par des tribunaux internationaux comme la Cour de justice des Communauts europennes, par exemple. For Switzerland, see e.g. Feuille fdrale 2004, p. 71. For the facts of the case, see Cress, Automatic Rights or Permissive Ones?, p. 200. Hamdan v. Rumsfeld, 344 F Supp 2d 152 (DDC 2004), at 23.

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law without enactment of implementing legislation; (ii) if the Senate in consenting to the treaty requires implementing legislation; (iii) if implementing legislation is constitutionally required. After examination, the court concluded that Geneva Convention III was a self-executing treaty in its quasi-entirety for the following reasons:
Because the Geneva Conventions were written to protect individuals, because the Executive Branch of our government has implemented the Geneva Conventions for fty years without questioning the absence of implementing legislation, because Congress clearly understood that the Conventions did not require implementing legislation except in specic areas [i.e., for Articles 129 and 130 on repression of grave breaches], and because nothing in the Third Geneva Convention itself manifests the contracting parties intention that it not become effective as domestic law without the enactment of implementing legislation339

That conclusion was drawn on the basis of the whole convention, and not by examining the self-executing character of specic provisions. On appeal, the conclusion of the District Court that the Geneva Conventions were self-executing was overturned340 and the Supreme Court left this question open, because it considered that IHL had been transformed by domestic legislation on the question at bar.341 The facts of Hamdi v. Rumsfeld reveal a great similarity with Hamdan.342 Therefore, sufce it to note that Hamdi petitioned for a writ of habeas corpus in order to challenge the legality and conditions of his
339

340 341 342

Ibid., at 256. However, see the subsequent decision rendered by the Supreme Court. The court does not pronounce itself on the self-executing character of the convention but does question whether Geneva Convention III is judicially enforceable. That determination could appear in our interest here, as it is to some extent linked with the private right of action thesis, sometimes considered as constituting a criterion for the determination of the self-executing character of a treaty. The majority, however, circumvented the question by stating that in any case compliance with the laws of war is the condition upon which the authority set forth in Article 21 [of the Uniform Code of Military Justice] is granted. Therefore, the legality of military commissions to try Hamdan could be assessed not by invoking directly the rights granted to him by virtue of Geneva Convention III but only indirectly by relying upon the explicit reference of the laws of war of Art. 21 of the Uniform Code of Military Justice, which embodies Geneva Convention III. Hamdan v. Rumsfeld, 548 US 557 (2006), at 645, www.supremecourt. gov/opinions/05pdf/05184.pdf. Fitzpatrick claims nonetheless that Geneva Convention III is judicially enforceable. Regina Fitzpatrick, Hamdan v. Rumsfeld: Implications for the Geneva Conventions (2007) 20 Harvard Human Rights J 342. Hamdan v. Rumseld 415 F 3d 33 (2005), at 3840. Hamdan v. Rumsfeld 548 US 557 (2006). Except that Hamdi was a US citizen, which made a signicant difference at the time for the application of US constitutional law.

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detention, as he claimed that he ought to have a competent tribunal to determine his status by virtue of Article 5 GC III.343 When the case came before the Fourth Circuits panel, the court denied the self-executing character of Geneva Convention III.344 Its conclusion was based on the understanding that Courts will only nd a treaty to be self-executing if the document, as a whole, evidences an intent to provide a private right of action,345 and that [t]he Geneva Convention evinces no such intent.346 In United States v. Lindh,347 the District Court did not discuss at length the criteria to determine the self-executing character of a treaty. It merely relied on the nature of the obligations embodied in the provisions, in question, i.e. their executory or executed character, as the court in Foster and Elam did.348 It found no proof of the parties intent to require further legislation for the two provisions at stake.349 In the light of the decisions on those three cases, one has to admit that no clear criteria can be drawn for the self-executing nature of a treaty. The District Court in Hamdan seemed to rely mostly on the intent of the parties by examining the overall construction of the treaty (Geneva Convention III).350 The same perspective seems to have been followed by the court in Lindh, although it appeared more concerned by the nature of the obligations embodied in Geneva Convention III, an understanding more in line with the indirect remedial intent thesis developed by the Foster and Elam case. Finally, in Hamdi, the non-existence of a private right of action was said to prevail over other considerations. However, most scholars consider the conclusion reached in Hamdi to be incorrect, underscoring that the Geneva Conventions do create individual rights, and envision repression, liability and reparation for

343 344 346

347

348 349

350

Again, for the facts, see Cress, Automatic Rights or Permissive Ones?, pp. 2012. 345 Hamdi v. Rumsfeld, 316 F 3d 450 (4th Cir 2003), at 4689. Ibid., at 468. Ibid. The Fourth Circuit emphasizes that enforcement of the convention is left to interstates diplomatic consultations (i.e. by meeting of state representatives as stated by Art. 11 GC III or through joint transnational effort in case of violation of the convention by virtue of Art. 132). Ibid. Lindh was charged due to his involvement with the Taliban during the war in Afghanistan. He claimed to benet from immunity for his participation in hostilities as a lawful combatant by virtue of Arts. 87 and 99 GC III. See Cress, Automatic Rights or Permissive Ones?, pp. 2034. US v. Lindh, 212 F Supp 2d 541 (11 July 2002), at 553, n. 20. Ibid. The two provisions concerned were Arts. 89 and 99 on the punishment and prosecution of prisoners of war. But see Cress, stating that the court relied on the intent-based thesis and the private right of action. Cress, Automatic Rights or Permissive Ones?, 2001.

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violations, and that in any case the fact that no private right of action is expressly stated in a treaty does not bar an individual from invoking the treaty defensively (i.e. through a habeas writ).351 Furthermore, in the light of those cases, it is not clear whether it is the entire treaty that has to be deemed self-executing as in Hamdan and Hamdi or if the respective provisions of the treaty have to be individually as in Lindh. A more recent case brought before the US Court of Appeals for the District of Columbia threatened to complicate even further the meaning of self-executing and its applicability to IHL treaties.352 Al-Bihani relied on IHL to challenge the statutory legitimacy of his detention at Guantnamo Bay. He claimed that IHL could set limits on the presidents powers to enact any statute, such as the Authorization for Use of Military Force upon which his detention was grounded.353 The court dismissed his claim abruptly, holding that [t]he international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts.354 The court further qualied the laws of war as not constituting a xed code and contended that its dictates and application to actual events are by nature contestable and uid.355 Al-Bihanis subsequent petition for a rehearing en banc by the Appeal Court was denied, but the court took the unusual step of delivering a lengthy judgment on this point alone. The US government conceded Al-Bihanis point on the incorporation of international law into US law (but nonetheless requested that the rehearing be denied).356 The chief justice of the appeals court stated that he declined to en banc this case in order to determine the role of international law-of-war principles in interpreting the AUMF because the panels discussion of that question is not necessary to the disposition of the merits.357 2.1.3 Consensual understanding of the concept of self-executing While one can underscore that the lack of uniformity of the cases
351

352 354 355

356

See e.g. ibid., p. 211; Jinks and Sloss, Is the President Bound by the Geneva Conventions?, pp. 1903; Jordan J. Paust, Judicial Power To Determine the Status and Rights of Persons Detained Without Trial (2003) 44 Harvard Intl LJ 51517. 353 Al-Bihani v. Obama, 590 F 3d 866 (5 January 2010). Ibid., at 8712. Ibid., at 871. Ibid. The court concluded that while the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks, their lack of controlling legal force and rm denition render their use both inapposite and inadvisable when courts seek to determine the limits of the Presidents war powers. Ibid. (internal reference omitted). 357 Al Bihani v. Obama, 619 F 3d 1 (2010), at 2. Ibid., at 1.

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presented above is part of a broader tendency of inconsistency of various national courts jurisprudence on the subject which in fact deals with a constitutional law issue scholars have nonetheless succeeded in identifying some common denominators for determining the self-executing character of a treaty. First of all, it has been sustained that some provisions of a treaty can be deemed self-executing whereas others not.358 Therefore, one should not assess the self-executing nature based on the entire treaty, but instead take due consideration of each of its provisions separately, as it was done in Lindh. Secondly, the different criteria used for the self-executing determination can be reconceptualized into two main constitutive elements: (i) the intentions of state parties and (ii) a sufcient degree of precision and clarity of the provision in order for it to be applied without the need of further specic legislation.359 The rst criterion must be understood as requiring that the parties intended to create a right or an obligation for the individual. The importance of this intent-based thesis, as seen in the Foster and Elam case, was propounded in 1928 by the Permanent Court of International Justice in its advisory opinion on the Jurisdiction of the Courts of Danzig. Having to determine whether an international treaty between Poland and Danzig the Beamtenabkommen could create rights and obligations for private individuals, the Court concluded that:
The answer to this question depends upon the intention of the contracting Parties. It may well be readily admitted that, according to a well established principle of international law, the Beamtenabkommen, being an international agreement, cannot, as such, create direct rights and obligations for private individuals. But it cannot be disputed that the very object of an international agreement, according to the intention of the contracting Parties, may be the adoption by the Parties of some denite rules creating individual rights and obligations and enforceable by the national courts. That there is such an intention in the present case can be established by reference to the terms of the Beamtenabkommen. The fact that the various provisions were put in the form of an Abkommen is corroborative, but not conclusive evidence as to the character and legal effects of the instrument. The intention of the Parties, which is to be ascertained from the contents of the Agreement, taking into consideration the manner in which the Agreement has been applied, is

358 359

See e.g. Cress, Automatic Rights or Permissive Ones?, p. 207. In this sense, see: P. M. Dupuy, Droit International Public, 7th edn (Paris: Dalloz, 2004), pp. 4045; Combacau and Sur, Droit international public, p. 178.

374 legal means through which pmscs are bound by ihl

decisive. This principle of interpretation should be applied by the Court in the present case.360

The intent of the parties therefore must be assessed based on the terms of the treaty, its content, and following the subsequent treaty application undertaken by the parties. One must nonetheless be careful in examining the content of a certain provision, as they can create rights or obligations for individuals in either a direct or indirect manner. Indeed, as Eric David emphasizes, it is not because a provision seems, at rst sight, to be addressed only to states that it does not create a consecutive binding right/obligation for individuals.361 David cites as an example Article 51 GC IV, which stipulates that [t]he Occupying Power may not compel protected persons to serve in its armed or auxiliary forces, and Article 48 AP I: Parties to the conict shall at all times distinguish between the civilian population and combatants .362 Such articles may well address both state parties and individuals. The precision of the provision, the second criterion, establishes itself according to some as a reection or consequence of the primary requirement of the intention of the parties, as it is concerned with the content of the provision.363 Others consider that precision, as an objective, functional criterion, is decisive.364 In any case, an imprecise and vague formulation cannot have a direct effect in domestic order. As Dupuy puts it, in order for the norm to be directly applicable in the internal order, it must be legally or materially complete.365

360

361

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, at 1718. David, Principes de droit des conits arms, 4th edn, p. 251: Il est assez frquent quune interdiction faite un Etat engendre des droits corrlatifs pour les particuliers. En dautres termes, le fait que la norme internationale ne sadresse quaux Etats nest nullement un obstacle son application directe aux individus. La jurisprudence rpressive conscutive la deuxime guerre mondiale offre pas mal dexemples dapplication directe des individus de rgles dont les destinataires sont pourtant des Etats. La Drittwirkung des droits de la personne existe depuis longtemps en droit des conits arms. [Emphasis added] 363 Ibid., pp. 2501. Dupuy, Droit International Public, p. 404. This is the practice of the Swiss Supreme Court and of Swiss authorities. See S. Besson et al., Aide-mmoire Vlkerrecht/Droit international public: Aide-mmoire (St Gallen: Dike, 2010), pp. 769, and a report of the Swiss government on the issue: Conseil Fdral, La Relation entre droit international et droit interne, Rapport du Conseil fdral (5 March 2010) Feuille fdrale 2067 (2010), 21056. Dupuy, Droit International Public, p. 404 (our translation).

362 364

365

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Determining the precision of a provision requires careful consideration of its content. Articles 49, 50, 129 and 146, for instance, call for penal sanctions following the commission of a grave breach of the conventions. Accordingly, whereas the criminalization of grave breaches is selfexecuting,366 the penal sanctions attached to them are still to be dened by state parties, and thus require further implementing legislation.367 In conclusion, whether or not the Geneva Conventions and Additional Protocols will be directly applicable remains to be determined on the basis of each of their respective provisions.368 As soon as it is established that those specic provisions are addressed to individuals whether directly or indirectly and are precise enough by themselves they will be deemed to apply directly to all individuals obviously including the personnel of PMSCs. The majority of scholars nonetheless tend to conclude that most of the provisions of the Geneva Conventions and Additional Protocols are self-executing.369 Illustrations of such selfexecuting provisions can encompass: rules embodying prohibitory conducts such as Article 3(1)(a) common to the Geneva Conventions (prohibiting violence to life and person), Articles 28 (prohibition of recourse to human shields) and 31 (prohibition of coercion) of Convention IV; and provisions related to the prohibition of hostage taking (Article 34) or pillage, collective punishments, measures of intimidation or terrorism against protected persons as enshrined in Article 33 of Convention IV for instance. It is not surprising that those self-executing provisions coincide with the list of IHL criminalized rules. Non-self executing provisions, on the other hand, encompass all those obligations that require, by denition, the existence of a state or quasistate structure for their implementation or that are directly addressed to High Contracting Parties. Hence, non-self executing provisions include the obligation of dissemination of the Geneva Conventions and

366 367 368

369

See above, section B 1.2.1.i. David, Principes de droit des conits arms, 4th edn, p. 813, para. 4.214. Milanovi, Is the Rome Statute Binding on Individuals?, pp. 45 ff., argues in a similar vein, that [w]hat matters is whether States Parties intended to directly bind individuals, in particular whether the text of a given treaty supports such an interpretation (reference omitted). See ibid., p. 251; Jinks and Sloss, Is the President Bound by the Geneva Conventions?, p. 123. Contra Lopes and Qunivet, Individuals as Subjects, p. 215, stating, when discussing the state-centered approach of IHL treaties: This position has not changed much since the rules set forth in the GCs and APs are not self-executing and, thus, individuals are not allowed to le a claim to obtain compensation (emphasis added).

376 legal means through which pmscs are bound by ihl

Additional Protocol I rules,370 the criminalization of grave breaches with the ensuing duty to search for and bring to justice the perpetrators of such crimes,371 the provisions requiring judicial or quasi-judicial decisions,372 the application of disciplinary measures in conformity with the laws and regulations of a party to the conict373 or the rules on the control of the use of the emblem.

2.2 Direct applicability of IHL through customary IHL Customary IHL offers another avenue to explain how individuals and staff of PMSCs are directly bound by the international rules of IHL. The direct applicability of customary international law on PMSC personnel reinforces and complements the binding character of IHL treaties on PMSC staff qua individuals. Furthermore, it is of particular interest for dualist countries, where international treaties do not apply directly in the internal legal order.
2.2.1 IHL as customary law: meaning and advantages Customary international law is generally recognized as being the resulting conjunction of two elements: rst, the general practice of states and, secondly, their opinio iuris, i.e. their belief they are under a legal obligation to behave in a certain way.374 However, determining customary international law rules in IHL based on those two criteria raises problems additional to the traditional ones attached to such an exercise.375
370

371

372

373 374

375

Arts. 47, 48, 127 and 144 of the 1949 Geneva Conventions and Art. 83 AP I. Note that the obligation of dissemination in Art. 19 AP II does not specify its addressees. Arts. 49, 50, 129 and 146 of the 1949 Geneva Conventions and Art. 85(1) AP I. See also Art. 86 AP I which provides for the obligation of repression of grave breaches and suppression of other breaches incumbent upon the High Contracting Parties and the parties to the conict (i.e. national liberation movements). See e.g. common Art. 3(1)(d) of the 1949 Geneva Conventions, Arts. 5, 84, 86, 87, 88, 96 and 99108 GC III, Arts. 35(2), 43, 78, 115, 118, 119 and 125 GC IV and Arts. 45 and 75 AP I. See e.g. Arts. 82 and 96 GC III. See Art. 38(1)(b) of the Statute of the ICJ which denes customary international law as evidence of a general practice accepted as law. Regarding constitutive elements of customary international law, refer to the following manuals: Shaw, International Law, 6th edn, pp. 72 ff.; Dupuy, Droit International Public, pp. 319 ff., esp. pp. 3234. See also the following emblematic decisions of the Permanent Court of International Justice and the ICJ: The Case of the S.S. Lotus (Judgment) [1927] PCIJ Rep, Series A, no. 10, at 18 and 28 (concerning opinio iuris and abstention); North Sea Continental Shelf cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands) (Merits) [1969] ICJ Rep 3, at paras. 70 et seq., esp. paras. 713 and 77; Asylum case (Colombia v. Peru) (Merits) [1950] ICJ Rep 266, at 277 (on a constant and uniform usage); Nicaragua, at para. 186. As to the traditional difculties attached to the determination of certain norms as customary international law, see e.g. Shaw, International Law, 6th edn, pp. 72 ff.

pmsc s as the sum of their individual employees

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The main issues refer to state practice as, for customary IHL, evaluating such practice would require to assess belligerents practice which is difcult to qualify as general and even more as accepted as law and to identify, particularly as it often consists of omissions.376 These difculties warrant reliance on state practice lato sensu,377 meaning that reliance must primarily be placed on such elements as ofcial pronouncements of States, military manuals and judicial decisions.378 Despite the difculties inherent in assessing customary IHL, the scope of those customary rules is relatively well-established. The customary status of 1907 Hague Regulations and the 1929 Geneva Convention on Prisoners of War was recognized after the Second World War by the International Military Tribunal at Nuremberg.379 Further case law afrmed that the majority of the provisions of the 1949 Geneva Conventions had also attained customary status.380 The same holds true for

376

377

378

379

380

Sassli and Bouvier, How Does Law Protect in War?, p. 134. See also Kalshoven, Applicability of Customary International Law, p. 271, stating that States can hardly be regarded as the real actors of the law of armed conicts whose implementation [rather] depends on those thousands or even millions of people who are involved in the armed conict, whether as members of the armed forces, as irregular ghters, or as civilians. Indeed, in a certain measure it is their acts which create the law, as their consistent patterns of conduct may lead to the formation of new customary law. See also Boelaert-Suominen, Grave Breaches, Universal Jurisdiction and Internal Armed Conict, pp. 667; Tadi (AC Decision on Jurisdiction 1995), at para. 99. This might also be considered as evidence of opinio iuris. See Sassli and Bouvier, How Does Law Protect in War?, p. 134. See also Moir, The Law of Internal Armed Conict, p. 138. Tadi (AC Decision on Jurisdiction 1995), at para. 99. Similarly Sassli and Bouvier, How Does Law Protect in War?, p. 134. As Lindsay Moir argues, this approach has nonetheless raised multiple critiques, but he admits the conclusion of the tribunal to be sensible due to the difculties to assess state practice in armed conicts: The Law of Internal Armed Conict, pp. 1389. Concerning the 1907 Hague Regulations, see IMT, Trial of the Major War Criminals, 1946, Cmd. 6964, Misc. no. 12, p. 65. See also Theodor Meron, The Geneva Conventions as Customary Law (1987) 81 AJIL 359. As for the 1929 Geneva Convention, refer to the 1948 United States v. Von Leeb case (the High Command case); Christopher Greenwood, Customary Law Status of the 1977 Geneva Protocols in A. J. M. Delissen and G. Tanja (eds.), Humanitarian Law of Armed Conict: Challenges Ahead. Essays in Honour of Frits Kalshoven (Dordrecht: Martinus Nijhoff, 1991), p. 98. See the following ICJ cases: Nicaragua, at para. 218; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, at 257, paras. 802; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 136, at para. 89. For a more detailed account, see Vincent Chetail, The Contribution of the International Court of Justice to International Humanitarian Law (2003) 85 Intl Rev Red Cross 23569, 244.

378 legal means through which pmscs are bound by ihl

Additional Protocol I.381 Concerning non-international armed conicts, the ICJ recognized the customary nature of common Article 3 of the 1949 Geneva Conventions in its 1986 Nicaragua ruling,382 a nding later taken up by the ICTY in Tadi.383 Moreover, beyond the controversial customary character of Additional Protocol II,384 the contemporary common understanding is that a number of customary rules owing from the law of international armed conict apply also in non-international armed conicts concerning, for example, the protection of the civilian population in hostilities and the limitations on the means and methods of warfare.385 In 2005, the ICRC published an authoritative study laying down customary rules of IHL.386 Although that study should perhaps not be taken as a codication of all existing customary rules, it remains a useful illustration of customary IHL norms.387 The direct applicability of
381

382 383 384

385

386 387

See in this sense Greenwood, Customary Law Status of the 1977 Geneva Protocols, pp. 10412. Nicaragua, at 113, para. 218. Tadi (AC Decision on Jurisdiction 1995), at para. 102. See e.g. Moir, The Law of Internal Armed Conict, p. 133; Greenwood, Customary Law Status of the 1977 Geneva Protocols, pp. 11213. But see Kalshoven who was of the opinion that draft Protocol II contains a mixture of reafrmation and development of IHL. Kalshoven, Applicability of Customary International Law, p. 270. In the same vein see Tadi (AC Decision on Jurisdiction 1995), at para. 117. This blurring of the distinction thesis originated from the ICTY 1995 Tadi case (Tadi (AC Decision on Jurisdiction 1995), at paras. 97102 esp.). See, inter alia: Kalshoven, Applicability of Customary International Law, pp. 2735; Antonio Cassese, The Spanish Civil War and the Development of Customary Law Concerning Internal Armed Conicts in A. Cassese (ed.), Current Problems of International Law (Milano: Giuffr, 1975), pp. 293 316; Jean-Marie Henckaerts, Importance actuelle du droit coutumier in P. Tavernier and L. Burgorgue-Larsen (eds.), Un Sicle de droit international humanitaire. Centenaire des Conventions de La Haye et Cinquantenaire des Conventions de Genve (Brussels: Bruylant, 2001), p. 23. Nonetheless this penetration of rules pertaining to the realm of international armed conicts into the circumscribed scope of non-international conicts norms has so far been limited to a certain extent as this transformation has not taken place in the form of a full and mechanical transplant of those rules into internal conicts. Kalshoven, Applicability of Customary International Law, p. 283. Kalshoven observes that the principle of immunity from prosecution following participation in hostilities and some rules related to the law of occupation are not applicable in non-international armed conicts. See also Tadi (AC Decision on Jurisdiction 1995), at para. 126. Henckaerts and Doswald-Beck, Customary International Humanitarian Law. Ibid., see the foreword by Y. Sandoz, vol. 1, p. xvii. For more detailed explanations on the study and its methodology, see: Jean-Marie Henckaerts and Louise Doswald-Beck, Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conict (2005) 87 Intl Rev Red Cross 178 ff.; I. Scobbie, The Approach to Customary International Law in the Study in E. Wilmshurst and S. Breau (eds.), Perspectives on the ICRC Study on Customary

pmsc s as the sum of their individual employees

379

at least some norms of customary IHL, which will be discussed later, provides some advantages as a source of IHL. First, the scope of application of customary IHL has the benet of not being subject to the inherent relativity of treaty obligations, but to bind all states regardless of their ratication of certain humanitarian treaties. This consequence of the customary character of those rules is especially important for the 1977 Additional Protocols which, contrary to the 1949 Geneva Conventions, do not enjoy universal ratication,388 but nonetheless lay down crucial rules pertaining to the eld of conduct of hostilities and non-international armed conicts that are not as highly developed by the Geneva Conventions.389 Customary IHL has the advantage of binding all addressees by the same rules: PMSC personnel will have to respect the universal set of international customary humanitarian law norms, regardless of their location and the nature of their clients. A second advantage to relying on customary norms rather than treaty law is the broader scope of rules applicable in non-international armed conicts. As discussed above, while treaty law continues to support the dichotomy of international versus non-international armed conicts rules, customary international law has taken into account the increasing occurrence and evolving aspects of non-international armed conicts in blurring the distinction between the rules applicable to international and non-international armed conict.390 Finally, due to its never-static scope, customary IHL rules may be more adapted to the realities of new
International Humanitarian Law (Cambridge University Press, 2007), p. 25; Daniel Bethlehem, The Methodological Framework of the Study in Wilmshurst and Breau (eds.), Perspectives on Customary International Humanitarian Law, p. 1. As of 19 March 2012, 194 states are parties to the 1949 Geneva Conventions, 171 to Additional Protocol I and 166 to Additional Protocol II. The state of ratication of those treaties is available on the ICRC website, www.icrc.org/eng/resources/documents/misc/ party_main_treaties.htm. The 1949 Geneva Conventions do not contain many rules on the conduct of hostilities. Those rules are said to pertaining to the Hague Law, and were therefore embodied, before the 1977 Additional Protocol I, in the Hague Regulations concerning the Laws and Customs of War on Land, of 18 October 1907. As regards rules on non-international armed conicts, Art. 3 common to the 1949 Geneva Conventions was the rst and sole article to govern such conicts before the adoption of Additional Protocol II. See Henckaerts, Importance actuelle du droit coutumier, p. 24. Indeed, if one reviews the rules of customary IHL presented by the ICRC study, one will surely be struck by the numerous customary rules applicable both to international and non-international armed conicts. Henckaerts and Doswald-Beck, Customary International Humanitarian Law.

388

389

390

380 legal means through which pmscs are bound by ihl

conicts, which is why it is important to demonstrate its direct applicability to PMSC personnel. In the light of the above, one can legitimately claim that customary law has as much potential with regard to its material scope and reach as IHL treaties. All those rules provide for a set of binding norms that PMSC personnel must respect. Whereas the binding character of IHL treaty provisions is explained by their self-executing nature (or their transformation into internal law in dualist systems), the manner in which customary IHL binds PMSC staff as individuals must be explored. 2.2.2 The direct applicability of customary IHL While customary IHL rules may be harder to grasp than clear treaty rules, customary international law benets nonetheless from a direct applicability in domestic legal orders that is not circumscribed by the self-executing provision test to which treaties are subject in monist systems. That direct applicability ows from the nature of customary international law itself. Indeed, as a constantly evolving law, requiring transforming legislation into municipal law would be meaningless. As Wildhaber and Breitenmoser argue:
The legislature would then be obliged to conrm explicitly all changes, modications and new creation of norms and principles of international law. As a consequence, an examination of all questions regarding international law would be needed at least once a year, followed by an update of the respective treaty law. No parliament and no administrative body would ever be capable of tackling, let alone mastering such a titanic work. Such rolling process of steady adaptation would be difcult to understand. It would create never-ending modications, which in turn would lead to uncertainties.391

Given this never-static character of customary international law, direct applicability is rather the rule than the exception in domestic legal orders. As such, the constitutions of some countries expressly provide for the direct applicability of customary international law. This is the case for Germany,392 Austria393 and Portugal,394 for instance. In other constitutions, the direct applicability is implicitly mentioned and has been
391 392 393 394

Wildhaber and Breitenmoser, Customary International Law and Municipal Law, p. 177. Ibid., pp. 179 ff. Ibid., pp. 185 ff. See also Seidl-Hohenveldern, Transformation or Adoption, pp. 901. Wildhaber and Breitenmoser, Customary International Law and Municipal Law, pp. 191 ff.

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conrmed by subsequent practice and doctrine. For example, Italys constitution (a dualist state) provides only that Italys legal system conforms with the generally recognized principles of international law.395 Despite this unclear formulation, subsequent interpretation has led to conrmations of the direct applicability of customary international law in the Italian municipal order.396 In France, the preamble of the Constitution of the Fifth Republic refers back to the 1946 Constitution of the Fourth Republic, whose preamble simply states that [t]he French Republic, faithful to its tradition, abides by the rules of international law. While this formulation echoes the Italian Constitution to some extent, the case of France remains more complicated than it appears. It is true that the fact that some French tribunals do not hesitate to apply rules of customary international law led some commentators to conclude that customary international law applies directly in France, but this interpretation is open to some debate.397

395

396

397

Translation quoted in ibid., p. 182. Art. 10(1) of the Italian Constitution originally reads as follows: Lordinamento giuridico italiano si conforma alle norme del dritto internazionale generalmente riconosciute. The text of the Italian Constitution is available online: www.governo.it/Governo/Costituzione/CostituzioneRepubblicaItaliana.pdf. See in this sense Seidl-Hohenveldern, Transformation or Adoption, pp. 91 and 923. However, this direct applicability appears not to be so crystal-clear: the generally recognized principles of international law become an integral part of the Italian legal system only after a procedure of automatic conformance, i.e. after having been transformed into parallel Italian customary law. But this different position has only the effect of a petitio principi, since it does not have any inuence upon the practical value of the norms concerned: Wildhaber and Breitenmoser, Customary International Law and Municipal Law, p. 183, quoting K. Oellers-Frahm, Das Verhltnis von Vlkerrecht und Landesrecht in der italienischen Verfassung (1974) 34 ZaRV 330, 350. See esp. Seidl-Hohenveldern, Transformation or Adoption, p. 91, who underscores that [i]n defence of the omission of a special reference to these rules in the several French Constitutions it has been said that such reference would be unnecessary, as it would merely be the expression of what is in any even a general conviction, i.e. the direct applicability of customary international law in French domestic legal order; Wildhaber and Breitenmoser, Customary International Law and Municipal Law, pp. 182 ff. PierreMarie Dupuy makes clear that no uniform practice has so far evolved in French courts. While the constitutional value of the Constitutions preamble has undoubtedly been recognized by the Constitutional Council since 1972, Dupuy illustrates the inconsistent positions taken by the administrative courts (but see at p. 417 the position of the Conseil dEtat in the Aquarone case which seems to open up the door to the direct applicability of customary law within the domestic legal order) and the reluctance of the Constitutional Council to rely explicitly on customary international law, contrasting with the more open practice of the civil jurisdictions. Dupuy, Droit international public, pp. 41520.

382 legal means through which pmscs are bound by ihl

By contrast, the constitutions of other states remain silent as to the direct applicability of customary international law. This is the case of Belgium,398 the Netherlands,399 the United States, Canada, Australia and Israel, among others. However, customary international law has usually effectively been applied by their national courts.400 In common law jurisdictions, this is motivated by the fact that customary law is part of common law, which is the law of the land. As such the United States, a primary actor in contemporary armed conicts and contractor of PMSC services, follows the pattern of common law countries. There, the prevailing view since the eighteenth century has been that international law is part of the law of the land,401 thus upholding the British Blackstonian doctrine.402 Consequently, customary international law has usually been applied directly by national courts,403 and the same conclusion can be drawn for customary IHL. In the light of this present overview, the main position of states as regards customary IHL can be summarized by its direct application in domestic legal orders. Consequently, obligations [owing from this source of IHL] are incumbent upon all individuals of the world ,404 regardless of whether the national legal system within which individuals live contains a similar of the same obligation,405 as no implementing legislation is required for customary international law. PMSCs members are, as all other individuals of the world, directly bound by customary IHL rules.
398

399 401 402

403

404

Wildhaber and Breitenmoser, Customary International Law and Municipal Law, pp. 203 ff. 400 Ibid., pp. 200 ff. Seidl-Hohenveldern, Transformation or Adoption, p. 91. See in this sense: Respublica v. De Longchamps, 1 Dall. 111, at 117. On the applicability of international law in the British domestic legal order, Blackstone commented, the law of nations is here adopted in its full extent by the common law, and is held to be part of the law of the land. And those acts of Parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom, without which it must cease to be part of the civilized world. Cited in OConnell, International Law and Municipal Law, p. 453. See Shaw, International Law, 6th edn, pp. 157 ff.; Seidl-Hohenveldern, Transformation or Adoption, pp. 912. 405 Cassese, International Law, p. 144 (emphasis added). Ibid., p. 145.

4 The legal rules applicable to PMSCs and their personnel

In Chapter 3 above we discussed the different ways in which international humanitarian law (IHL) may apply to private military and/or security companies (PMSCs) and their personnel. In this chapter, we will explore in detail what the applicable rules mean for PMSCs in situations of armed conict, both in terms of the roles they may have and their responsibilities in those roles, in terms of duties, rights and obligations that ow from IHL. If IHL binds the personnel of PMSCs, all of its rules are binding. As the purpose of this book is not to be a textbook on IHL, we do not give an overview on all those rules, not even on those of the greatest humanitarian importance, such as the prohibition of torture, rape, starvation of civilians, deliberate attacks upon civilians or the obligation to care for the wounded and sick. Instead, we focus on those rules which raise particular legal or conceptual problems of interpretation or application in relation to PMSCs. We will therefore mainly tackle some of the very difcult and sensitive legal issues relating to PMSCs, including the possible status they will have under IHL, how their status denes the roles states may accord them without the likelihood that they will directly participate in hostilities and how to draw the line between what constitutes undesirable (if not impermissible) direct participation in hostilities and the exercise of personal self-defence. In addition, we observe that in situations of armed conict, regular law enforcement must also be carried out. We will therefore outline the matrix of humanitarian law and other applicable norms relating to law enforcement in relation to PMSCs. Throughout this discussion, we will attempt to canvass specic duties in IHL and explore how they apply to PMSCs undertaking certain functions in a situation of armed conict. Some solutions are conceptually inadequate or dangerous under IHL or are impractical; when we are unable to indicate the correct solution we will outline the respective advantages and disadvantages of several possible solutions. In the introduction, we explained briey what an armed conict is and how PMSCs may nd themselves in such situations. The use of force by

383

384 legal rules applicable to pmscs and their personnel

PMSC personnel in the context of an armed conict is governed by different legal rules depending on their own status in IHL primarily whether they are combatants belonging to a state party to a conict or not; whether they are subject to any specic rules or laws on the use of force by private contractors in the relevant territory, be they national laws, regulations of an occupation administration or other international agreements related to the conict; whether they are exercising law enforcement functions on behalf of a state or other controlling authority; and, nally, whether they are acting in personal self-defence, including defence of others. The legal regimes for these different situations are wellestablished but there can be substantial difculties in applying them to PMSC personnel in a given set of circumstances, due to the oftenambiguous nature of the roles they are assigned, in addition to the inevitable confusion that arises in the context of war. For an IHL lawyer, the use of force by a private military or security contractor thus may represent a number of different legal situations. One must determine whether, taking into account all of the relevant facts and evidence, the individual in question falls into one of the following ve legal categories: 1. members of the armed forces of a state party to an international armed conict or members of a militia or armed group belonging to a party1 2. members of an armed group with a continuous combat function in the context of a non-international armed conict 3. civilians who are unlawfully directly participating in hostilities under IHL 4. persons not participating in hostilities but who are private civilians (or civilians accompanying armed forces) exercising their personal right of self-defence 5. persons who are not participating in hostilities but are using force legitimately while exercising law enforcement powers conferred on them by the territorial state or occupying power. In many ways, the question of status of PMSC personnel under IHL is the keystone issue for the rights and to a lesser extent the obligations of those actors in a situation of armed conict. If PMSC personnel have combatant status, they have the right to use force in hostilities. If, however, they do not have combatant status, they are civilians, and that

That is to say, armed forces that meet the denitions in Arts. 4A(1) or 4A(2) GC III.

establishing the status of pmsc personnel under ihl 385

civilian status affects the framework governing their ability to use armed force, in particular in the context of hostilities. It may also have an impact on whether IHL obligations that are not criminalized apply directly to such PMSC contractors. The issue of status will thus be examined in close detail in the rst part of this chapter in order to provide the foundation for the overall legal framework. PMSCs also undertake many civilian roles that do not involve the use of force (or direct participation in hostilities), in which case the applicable rules are the same for them as for any other civilians in armed conicts. As will be seen below, however, some logistics, technical support and advisory roles offered by PMSCs as part of the services to the armed forces may in certain circumstances constitute direct participation in hostilities. Thus, it is difcult to make generalized distinctions without considering the specic situations in which PMSCs have been involved, or the implications of services currently offered by PMSCs for future armed conicts. Finally, the fact that PMSCs are at times contracted by defence departments or ministries to carry out work directly linked to armed conict means that even acts not involving the use of force may be closely and specically governed by IHL. In a later section we will explore some of those roles and rules in more detail.

Establishing the status of PMSC personnel under IHL

As the introductory overview indicates, the IHL of international armed conicts is deeply concerned with the status of individuals and requires people to be classied as either combatants or civilians. In noninternational armed conicts, the IHL treaty rules do not make such a distinction, but there is a recent tendency in doctrine, expert discussions and jurisprudence to circumscribe a kind of status of ghters with continuous ghting function who do not have the rights of civilians.2 In international armed conicts, in any case, civilians and combatants are the two principal categories of persons under IHL, and the vast majority of rights and to a controversial extent obligations ow from the ascription of a person to one or the other. In Chapter 3 above, we noted that one vector through which IHL may apply to PMSCs that is, to the companies themselves is if a given company constitutes a state-linked
2

The clearest example of this is the ICRCs recent Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva: ICRC, 2009).

386 legal rules applicable to pmscs and their personnel

militia force recognized by IHL.3 Such status of the company as a whole would in turn translate into combatant status for the personnel or employees of the company, a status which would in effect set them on a par with the regular armed forces of a state party to a conict. We also noted that a private company may recruit and train an individual who is then incorporated into a states armed forces4 such that that person will have combatant status. Below, we will show that it is unlikely that many PMSCs satisfy the criteria in order to constitute such militia forces recognized by IHL. Since that issue is an integral part of the question as to whether PMSC personnel have combatant status, we will analyse both issues here in detail. Other terms appearing to affect status determination also crop up. We often see the word mercenary associated with PMSCs: as we have shown (see Chapter 1 above), the characteristics and circumstances according to which a person may be legally classied as a mercenary are dened under IHL. In addition, there is currently a vigorous debate regarding whether a separate category of unlawful combatants exists, complete with its own legal regime of obligations and very few and unclear rights of detained persons. In the context of international armed conicts, the status of PMSC personnel is pivotal to their rights and, to a lesser extent, to their obligations under IHL. It is therefore crucial to understand the contours and nuances of the debate and to have a sense of when and how PMSC personnel may t in the various categories. In the following pages we will set out the rules of IHL on status determination for international armed conicts and explore their application to PMSC personnel. In addition, we will outline the existing framework regarding ghters and nonparticipants in non-international armed conicts and apply it to PMSC personnel in order to provide an assessment of their attendant rights, duties and obligations in that context.

1 PMSCs and combatant or ghter status

One of the fundamental principles of the IHL of international armed conicts is that one must distinguish between civilians and combatants. The principle of distinction is crucial to IHLs ability to protect civilians
3 4

See Ch. 3, section B above. In fact, it is a private company that runs the US ROTC programme, which recruits and trains ofcers for the US forces.

establishing the status of pmsc personnel under ihl 387

from the violence of armed conict, since it is only lawful to target combatants.5 Civilians are protected from direct attack.6 In addition, the collateral effects on civilians of attacks on lawful military objectives must be taken into account, which also serves to limit harm caused to civilians in armed conict.7 In terms of the rights owing from status, only combatants may lawfully directly participate in hostilities: this is the combatants privilege.8 The fact that combatants may lawfully directly participate in hostilities means that they are immune to prosecution for lawful acts of war for example, killing enemy soldiers but they are not immune from prosecution for the commission of violations of IHL. If captured, combatants have the right to be prisoners of war (POWs) unless they have failed to distinguish themselves from the civilian population while ghting.9 The ipside to this privilege is that combatants may be directly targeted and killed by opposing enemy combatants. While there are some limits on the type of weapons that may be used against combatants10 and which circumscribe tactics to some extent (for example, ruses of war are permitted but perdious attacks are prohibited), traditionally under IHL there is no proportionality calculation between the harm inicted on the combatant and the military advantage drawn from the attack for combatants. The IHL of non-international armed conicts, on the other hand, contains no denition of combatants. In a nutshell, in international armed conicts, rules on the targeting and treatment of persons are largely status-based, but in non-international armed conicts they were
5

6 7

8 9

10

Art. 48 AP I. Indeed, two US ofcers state, Compliance with this concept of distinction is the fundamental difference between heroic Soldier and murderer. See M. Maxwell and R. Meyer, The Principle of Distinction: Probing the Limits of its Customariness (March 2007) Army Lawyer 111, 1. As long as they are not directly participating in hostilities. See Art. 51(3) AP I. Arts. 51 and 57 (on proportionality and precautions) AP I. See M. Sassli and L. 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. Art. 43(2) AP I. Art. 4A GC III denes who has a right to be a POW, not who has a right to be a combatant. There are a small number of people who have the right to POW status without having combatant status. Art. 44(3) AP I conrms that a person who does not distinguish himself when attacking loses POW status. While ghting used here includes all the possibilities set forth in Art. 44(3) preparatory to an attack etc. See e.g. Protocol on Blinding Laser Weapons (Protocol IV to the 1980 Convention) 13 October 1995; Art. 35 AP I (the prohibition on superuous injury or unnecessary suffering).

388 legal rules applicable to pmscs and their personnel

traditionally seen as conduct-based. This means that in non-international armed conicts, the rules as to whether a person may be targeted and the protections to which he or she is entitled are determined by the persons own conduct in particular, the fact that the person does not (or no longer) directly participates in hostilities. Consequently, the concept of direct participation in hostilities is of general importance in noninternational armed conicts. The concept of direct participation in hostilities also applies in international armed conicts, but it is not the central factor for determining who constitute(s) the opposing, enemy armed forces. In non-international armed conicts, recently the idea has appeared that members of armed groups, or some of them, are ghters who may be attacked, like combatants in international armed conicts, at any time until they surrender or are otherwise hors de combat.11 This concept nuances the general rule that civilians who are directly participating in hostilities may only be attacked during the duration of their direct participation. Thus, a delineation which may be considered statusbased also appears in the IHL of non-international armed conicts. When dealing with those who regularly participate in hostilities in noninternational armed conicts, we will use the term ghters.

1.1 International armed conicts: are they combatants? There are two articles in the treaties, one in the Geneva Convention relative to the treatment of POWs (Geneva Convention III) and one in Additional Protocol I, that provide a denition of who is a combatant in the context of international armed conicts. To be more precise, Article 4A GC III denes who is a POW, and, of the six categories of persons it lists, four have the right to have combatant status. Consequently, the fact that a person has a right to POW status is often construed as tantamount to having combatant status.12 Three of the six categories in that denition are particularly pertinent to PMSCs and will be discussed in detail
11

12

The nature of membership in such a group and the precise function of the individual in question in order for him/her to be a lawful target of attack is a matter of intense debate. We are convinced that simple membership in an armed group is not sufcient to render a person subject to attack at all times and believe that only those members with a ghting function may be attacked at any time, and others only when they are directly participating in hostilities. See M. Sassli, The International Legal Framework for Stability Operations: When May International Forces Attack or Detain Someone in Afghanistan? (2009) 39 Israel Ybk Human Rights. Art. 4A(4) GC III grants POW status to civilians accompanying the armed forces without their having combatant status; Art. 4A(5) grants POW status to civilian crews of aircraft.

establishing the status of pmsc personnel under ihl 389

below.13 Article 43 AP I, on the other hand, specically denes who is a combatant, but since that protocol is not universally ratied, and since both the POW denition in Article 4 GC III and Article 43 AP I continue to apply simultaneously, we will consider all of the possibilities those provisions entail.14 1.1.1 Article 4A(1) GC III The rst category of persons who have combatant status is found in Article 4A(1) GC III:
Members of the armed forces of a Party to the conict as well as members of militias or volunteer corps forming part of such armed forces.

This provision is straightforward and requires that we determine whether a given PMSC or PMSC personnel are somehow incorporated into the
13

14

Arts. 4A(1) and 4A(2) with respect to combatant status and 4A(4) with respect to civilians accompanying the armed forces of a party to a conict (GC III). Although the ICRCs study on customary IHL asserts that Art. 43 is customary law, one may question whether this represents the entire picture. They argue only that the relaxation of the requirement that combatants distinguish themselves is not customary given the opposition of some states to this rule in Additonal Protocol I, but do not discuss the absence of any requirement of xed or distinctive sign on their general denition of who is a combatant (see Jean-Marie Henckaerts, Customary International Humanitarian Law: A Response to US Comments (2007) 89 Intl Rev Red Cross 473, 481). The fact that the relaxed obligation to distinguish oneself is not customary necessarily implies an obligation to distinguish oneself, presumably by xed distinctive sign, which means that the customary denition of who is a combatant is arguably closer to Arts. 4A(1) and 4A(2) GC III combined rather than to Art. 43 AP I, which makes no mention of the necessity for such a sign. In addition, Rule 106 requires combatants to distinguish themselves in order to have POW status. On the other hand, the ICRC customary IHL denition requires that the groups be under a command responsible to that party, whereas the requirement of Art. 4A(2) is simply under a responsible command, combined with belonging to a party, but where belonging is generally accepted to be a much looser standard than where the party exercises command and control over the group through any kind of responsible command. Although Henckaerts and Doswald-Beck assert that the assimilation of regular and irregular armed forces (Rogers words) is generally applied (Henckaerts and Doswald-Becks words), Rogers is dubious that this assimiliation has reached the level of customary law. See A. P. V. Rogers, Combatant Status in E. Wilmshurst and S. Breau (eds.), Perspectives on the ICRC Study on Customary International Humanitarian Law (Cambridge University Press, 2007), pp. 10127, 110. In particular, Rogers points out that most of the military manuals cited in the study are from states that are parties to Additional Protocol I but that these also refer to the conditions for militia groups from the Hague Regulations and Geneva Convention III. Only two manuals are entirely based on the assimilated approach: the United States (not a party to Additional Protocol I) and Indonesia. Ibid. See also J. Kleffner, From Belligerents to Fighters and Civilians Directly Participating in Hostilities On the Principle of Distinction in Non-international Armed Conicts One Hundred Years after the Second Hague Peace Conference (2007) Netherlands Intl L Rev 31536, 3201.

390 legal rules applicable to pmscs and their personnel

armed forces of a party to a conict.15 We note, in passing, that this denition also includes militias or volunteer corps which form part of the armed forces. This clause was not absolutely necessary since the fact that such groups form part of the armed forces is sufcient to decide the matter (and they thus could have been subsumed under the general phrase armed forces in Article 4A(1)), but it was included to ensure clarity since, at the time of its adoption, certain countries still had militias and volunteer corps which, although part of the armed forces, were quite distinct from the army as such.16 IHL does not set out the steps that states must take in order to incorporate individuals or groups into their armed forces; that is a matter for internal law.17 Incorporation therefore depends on the will and internal legal regime of states. Such laws and regulations may, for example, establish which organs of government may issue regulations on the enlistment of persons into the armed forces as well as specify terms such as age and citizenship requirements.18 It is conceivable that in rare
15

16

17

18

Although this specic provision was adopted in the Geneva Convention (III) of 1949, it sustains and reects a much older concept present already in the Hague Regulations of 1899 and the Geneva Convention of 1929 on Prisoners of War. See Art. 3 of the Regulations Respecting the Law and Customs of War on Land, Annex to the 1907 Hague Regulations. Art. 1(1) of the 1929 Convention also refers to [o]fcers and soldiers and other persons ofcially attached to the armed forces: Convention for the Amelioration of the Wounded and Sick Armies in the Field, 27 July 1929. 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), pp. 512. Knut Ipsen, Combatants and Non-combatants in D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conicts (Oxford University Press, 1995), p. 67. See also M. H. F. Clarke, T. Glynn and A. P. V. Rogers, Combatant and POW Status in M. A. Meyer (ed.), Armed Conict and the New Law, vol. 1: Aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention (London: British Institute of International and Comparative Law, 1991), pp. 1089. See e.g. UK, Armed Forces Act 2006, c. 52, Part II, ss. 3289; UK, The Armed Forces (Enlistment) Regulations 2009, no. 2057. They may also dene what legal act constitutes enlistment (such as signing papers, etc.) (see e.g. UK Enlistment Regulations 2009, s. 2(4)). The ICRC Commentary to Art. 50 AP I states, armed forces constitutes a category of persons which is now clearly dened in international law and determined in an indisputable manner by the laws and regulations of States. 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. 611, para. 1914. Solf, in discussing Art. 43 AP I, which also denes combatants, asserts that the only apparent distinction between the militias and volunteer corps that formed a part of a States armed forces and those which were deemed to be independent (or irregular) were frequently the vagaries of domestic law and their link to the political structure of their government: M. Bothe, K. J. Partsch and W. A. Solf, New Rules for Victims of Armed Conict:

establishing the status of pmsc personnel under ihl 391

cases, a state may incorporate a PMSC into its armed forces this indeed seems to be what happened in Sierra Leone in 1995.19 If it does so, PMSCs are treated exactly as regular armed forces under IHL and pose no particular problem for its application. However, the whole point of privatization is precisely the opposite to devolve on the private sector what was previously the preserve of government authorities and state actors. The desire to ensure exibility and to decrease costs associated with carrying numbers of personnel who are not necessary all the time are the driving forces for outsourcing. Indeed, those who defend outsourcing of military activities despite the ostensibly or seemingly high contract prices point to precisely the fact that they are not carrying such personnel (and paying pensions, veterans care, etc.) on a permanent basis as an offset to the high cost of these contracts. The doctrine and practice of states that rely heavily on PMSCs conrm that, as a general rule, PMSCs are not incorporated into their armed forces, and certainly not as combatants.20 According to US doctrine, PMSCs fall under the rubric of Civilians accompanying armed forces.21 This is borne out by what happens to US PMSC contractors who are injured or killed overseas: the many injured contractor veterans are by law not entitled to the disability benets provided to members of the US armed forces.22 There are also cases of PMSC employees having been killed who, having received a military burial, were later stripped of those honours on the grounds that they were not military personnel.23 In the

19

20

21

22

23

Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (The Hague: Martinus Nijhoff, 1982), p. 236. However, Schmitt points out that there may not always be a law there was none for joining the Taliban forces in Afghanistan (Michael Schmitt, Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees (2005) 5 Chicago J Intl L 51146, n. 58). See Peter Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca: Cornell University Press, 2003), pp. 10615. Similarly, Anna Khler, Private Sicherheits-und Militrunternehmen im bewaffneten Konikt: Eine vlkerrechtliche Bewertung (Frankfurt am Main: Klner Schriften zu Recht und Staat, 2010), pp. 7980. Art. 4A(4) GC III provides for just such a category of POWs, but these people do not have combatant status. This is recognized in the United States: J.Elsea and N. Serano, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues (CRS Report for Congress) (21 June 2007). See also Department of Defense Instruction 3020.41 Contractor Personnel Authorized to Accompany the U.S. Armed Forces (3 October 2005). See Matthew Kestian, Civilian Contractors: Forgotten Veterans of the War on Terror (2008) 39 U Toledo L Rev 887, 889. 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), p. 119.

392 legal rules applicable to pmscs and their personnel

UK, it is not the UK Ministry of Defence that contracts PSCs in Iraq and Afghanistan, but rather the Department of Foreign Affairs and International Development, which under UK law has no capacity to enlist persons into the armed forces.24 In addition, while the current debate on PMSCs often focuses on their use in Iraq and Afghanistan, we would do well to recall that states often use PMSCs where they are impeded by their internal law from sending their own military forces (e.g. the United States in Colombia). While it is true that international law would not necessarily give effect to a lack of incorporation by domestic law destined only to avoid the consequences of incorporation under international law, in our case states do not treat PMSC personnel for all practical purposes other than incorporation as if they were members of their armed forces. They do not give them the same rights and obligations and perhaps most importantly they claim at least that such personnel may not conduct hostilities. From that perspective, it would therefore be highly astonishing that through the operation of Article 4(A)(1) PMSC contractors have combatant status and would become members of the armed forces contrary to domestic legislation. 1.1.2 Article 4A(2) GC III The second means for a group to qualify for combatant (or POW) status is to meet the ve requirements laid down in Article 4A(2) GC III. That article stipulates that the following are entitled to POW status:
Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conict and operating in or outside their own territory provided that such militias or volunteer corps, including such organized resistance movements, full the following conditions: (a) (b) (c) (d) that of being commanded by a person responsible for his subordinates; that of having a xed distinctive sign recognizable at a distance; that of carrying arms openly; that of conducting their operations in accordance with the laws and customs of war.

All of the conditions must be met by the group as a whole, and, again, the militia or group must belong to a Party to the conict. Indeed, no one
24

See UK Armed Forces Act 2006 (cited above) ss. 3289; see also denitions of recruiting ofcer in The Armed Forces (Enlistment) Regulations 2009 and prior legislation. See also Response of Hilary Benn to question by Norman Baker of 19 March 2007, Hansard, col. 615W, regarding DFID contracts for PMSCs.

establishing the status of pmsc personnel under ihl 393

can be a combatant of his or her own volition he or she must be a member of a group that must belong to a party to a conict.25 Each PMSC (i.e. company, not individual) must be considered on its own to determine whether its members have combatant status by virtue of this article. There is some disagreement among scholars as to whether PMSCs may have combatant status under Article 4A(2).26 It is therefore necessary and helpful to consider each of the criteria fully, but also to make an overall assessment, according to the systemic objectives of the law in order to understand the reasons for areas of discord.
1.1.2.i Belonging to a party (chapeau) The notion of whether a group satises the criterion of belonging to a party is not as straightforward as it might seem and is subject to controversy.27 Historically, a relationship between a state and a militia group could only be established if a sovereign gave express authorization in writing for the acts of the militia purporting to act on its behalf.28 However, by the turn of the twentieth century, that practice had largely fallen by the wayside and all that was required was some kind of de facto relationship between the state party and the group.29 Even tacit acceptance of the groups activities by the state party has been argued to be sufcient. Furthermore, according to proponents of this interpretation of belonging, it is not necessary for the state to exercise control over the group or its activities. Others, however, apply a test with a higher threshold to determine whether a group belongs to a party: they use the same criterion as for attribution under the law of state responsibility. In order for an independent groups acts to
25

26

27

28

Marco Sassli, Combatants, Encyclopaedia of International Law, Max Planck, para. 4 (http://mpil.de). Against: Schmitt, Direct Participation in Hostilities by Private Contractors or Civilian Employees, pp. 52731; Lindsey Cameron, Private Military Companies: Their Status under International Humanitarian Law and its Impact on their Regulation (2006) 88 Intl Rev Red Cross 573, 5847. For: Louise 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; N. Boldt, Outsourcing War: Private Military Companies and International Humanitarian Law (2004) 47 German Ybk Intl L 50244. For an argument that private military companies (as opposed to private security companies) fall under Art. 4A(2) GC III, see Khler, Private Sicherheits-und Militrunternehmen, pp. 8092. Katherine Del Mar, The Requirement of Belonging under International Humanitarian Law (2010) 21 EJIL 10524. 29 Pictet, Commentary GC III, p. 57. Ibid.

394 legal rules applicable to pmscs and their personnel

be attributable to a state under the law of state responsibility, international courts and tribunals (as well as the International Law Commission (ILC)) have sought to identify a level of state control over the group that would justify engaging the states responsibility for acts in violation of that states international legal obligations. The degree of control necessary within that higher threshold is itself a subject of controversy.30 Nonetheless, partly due to concerns regarding the dangers and disadvantages of a fragmentation of international law, some authors and tribunals have looked to the concept of control in the law of state responsibility to interpret the belonging criteria of Article 4A(2).31 There is a certain logic to this approach: if international legal obligations ow from the state for certain conduct, and if somehow attribution or imputability of a non-state actors acts to a state is the source of obligations binding on that non-state actor, it would seem to make sense that in order for a group to have combatant status through its afliation with a state, that afliation must satisfy the requirements established by the law of responsibility.32 However, our analysis will show that this is not the case. Using the state responsibility test to determine whether a group belongs to a party to a conict is incorrect for two reasons: rst, the content of the test (overall or effective control) does not accurately reect the meaning, value, or content of belonging under IHL for determining combatant status; secondly, it would be erroneous to interpret the existence of overall or effective control as being more than sufcient to establish belonging (because it may seem to be a higher threshold than that which IHL appears to demand) and could lead to absurd results.
30

31

32

See e.g. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ Rep 14; 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 and Prosecutor v. Tadi (Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT941-A (2 October 1995) the courts use different levels of control, but for different purposes. See also Ch. 2, section C above. E.g. see Boldt, Outsourcing War, esp. pp. 5245. Boldt applies Art. 43 AP I but partly relies on doctrine regarding Art. 4A(2) GC III and considers the whole under Art. 5 of the Draft Articles on State Responsibility. See also Del Mar, The Requirement of Belonging, esp. pp. 11721. One can make similar arguments for using the belonging/attribution criteria to determine that an ostensibly non-international armed conict is in fact international based on the degree of control and support of a third state. See e.g. Prosecutor v. Tadi (Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT941-A (2 October 1995).

establishing the status of pmsc personnel under ihl 395

PMSCs are a unique case for Article 4A(2), and the general framework setting out their ability to acquire combatant status through that article must be considered in light of the article as a whole and the context for which Article 4A(2) specically was developed. In our view, the threshold is the simple de facto relationship identied above but it includes the acceptance by the party in question that the group ghts on its behalf.33 The acceptance of a group as an armed group or militia ghting on behalf of a state is not reected in a pure control test.34 It is uncontroversial that a state is responsible for the conduct of many persons, including persons using force, who are not members of its armed forces nor combatants. That a state must accept that a group ghts on its behalf is, rst of all, implied by the words militia or volunteer corps in Article 4A(2) GC III. It is reinforced by the text of Article 43 AP I, that it is the armed forces, groups and units of a party which may, if they full the relevant conditions, have combatant status.35 Furthermore, this interpretation is sustained by general principles of interpretation. Paragraph 4A(4) of the very same article accords POW status to civilians accompanying the armed forces of a state provided they do not engage in hostilities.36 If a state acknowledges that civilians are accompanying its armed forces but its internal doctrine and external representations consistently articulate that those civilians are not combatants and may not participate in hostilities, it would make nonsense of Article 4A to then turn around and accord combatant status to precisely such civilians on the grounds that they belong to the state, regardless of the states acceptance of their ghting on its behalf. The International Committee of the Red Cross (ICRC) Interpretive Guidance supports this view, stating that Where such personnel [i.e. civilians accompanying the armed forces] directly
33

34

35 36

Similarly, see Khler, Private Sicherheits-und Militrunternehmen, pp. 8892. Boldt argues that in order to be part of the armed forces of a state under Art. 43 AP I, it must be an armed group or unit and discusses direct participation in hostilities in this light: Outsourcing War, pp. 516, 51923. He also observes, in respect of militia and volunteer units and whether they belong to a party, [t]oday, the question is whether or not a group is ghting on behalf of a party to the conict, p. 524, citing Ipsen, Combatants, p. 152 and Pictet, Commentary GC III, p. 57. Arguably, if a state has a high degree of effective control over a group, it can stop it from ghting; however, the point here is that no matter the degree of control, that the state accepts the ghting/armed group nature of the group is the most signicant element. See also in this vein Boldt, Outsourcing War, p. 524. This requirement is not a black-letter requirement of Art. 4A(4) GC III but it is widely accepted and understood to be the case.

396 legal rules applicable to pmscs and their personnel

participate in hostilities without the express or tacit authorization of the State party to the conict, they remain civilians and lose their protection against direct attack for such time as their direct participation lasts.37 The question then becomes, what do we do when doctrine and practice do not match, such that it is somewhat difcult to discern whether there is tacit acceptance of the direct participation in hostilities of contractors, or whether a state truly conceives that a particular role should not constitute direct participation but where opinions may differ? A relatively easy case is one where a state insists that contractors are civilians, but gives them a role with a continuous combat function. In a sense, this would allow them to full the requirement of the (tacit) acceptance by the state party that the group ghts on its behalf. There is some logic to this approach. According to the ICRCs Interpretive Guidance, and, presumably, regardless of the states protestations of their ofcial status, such contactors may be considered to form part of the armed forces by virtue of the fact that they have such a function. In such cases, since IHL applies based on the facts, such PMSCs could have combatant status. An example might be PMSCs contracted by the United States to guard forward operating bases in Afghanistan38 (if that conict is international and, obviously, provided the PMSC in question fulls the other criteria of 4A(2)). We must be careful in this approach not to corrupt Article 4A(4) (civilians accompanying armed forces) and rob it of any meaning. Indeed, it is somewhat odd to use the concept of direct participation in hostilities as a vehicle to move PMSC civilian personnel into the combatant category given that the nub of the concept is to identify when protection is removed from civilians, not to say when civilians somehow move into the combatant category and thus acquire combatant privilege. Using the continuous combat function concept in the context of noninternational armed conicts or regarding armed groups in a mixed conict is less problematic because there is no corollary benet or purported change in status entailing a legal right to participate in hostilities. In that case, the risks remain the same, whereas here, the risks change dramatically. The ICRC species that its interpretation applies only for the purposes of the conduct of hostilities and that Its
37 38

ICRC, Interpretive Guidance on the Notion of DPH, p. 39. Emphasis added. See the prepared statement of Senator Carl Levin in US Senate, Committee on Armed Services, Contracting in a Counterinsurgency: An Examination of the BlackwaterParavant Contract and the Need for Oversight (24 February 2010), p. 5.

establishing the status of pmsc personnel under ihl 397

conclusions are not intended to serve as a basis for interpreting IHL regulating the status, rights and protections of persons outside the conduct of hostilities, such as those deprived of their liberty.39 Using the concept of continuous combat function to accord combatant status to PMSCs under Article 4A(2) and render them immune from prosecution thus would seem to contravene the notion that the ICRCs interpretation of direct participation does not affect status.40 The fact that the state does not accept that they ght on its behalf must, therefore, be decisive. Our interpretation is furthermore supported by practice. During the expert meetings of the ICRC on direct participation in hostilities, one expert pointed to an example where, in Grenada in 1983, Cuban civilian contractors were ghting US forces with heavy artillery. When captured by US forces, they were given POW status by the United States, apparently on the basis of Article 4A(4) GC III. The conclusion of the expert was that while civilian contractors do not have a right to participate directly in hostilities, such participation was not per se prohibited by IHL such that it would lead to them losing their POW status as civilians accompanying the forces. However, it must be underscored that the recognition of POW status in that case is not a case of recognition of combatant status for PMSCs who participate directly in hostilities. Instead, the individuals in question, as civilians accompanying the armed forces, simply did not lose POW status on the basis of their direct participation. Another expert contended that direct participation in hostilities by civilian contractors is a war crime but this view was rejected by other participants. Nevertheless, the tenor of the discussion was not that direct participation in hostilities should be a conduit for acquiring combatant status under Article 4A(2) for Article 4A(4) contractors.41 Finally, it should be recalled that while states do contract PMSCs directly, a very signicant proportion of their business is in the form of subcontracts, in which case the link between the PMSC and the party to
39 40

41

ICRC, Interpretive Guidance on the Notion of DPH, p. 11. This tension runs throughout the interpretation to some extent given the ICRCs position that having a continuous combat function, dened as having a continuous function to directly participate in hostilities as a member of an armed group, also removes a person from the category of civilians in the context of non-international armed conict. However, as we indicate above, the rights and obligations owing from that change in status are much less black and white than in the context of international armed conict. ICRC, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (Geneva, November 2006), pp. 356.

398 legal rules applicable to pmscs and their personnel

the conict necessary to satisfy the test of belonging is severely weakened. The criteria for determining combatant status are thus not identical to those for determining whether a groups acts may be attributed to a state, and a conclusion with regard to one is not dispositive of the other.42 We note, furthermore, that confusing the tests for attribution and status determination would allow for different internal organs of a state to raise armed forces even if a states own internal law does not allow it.43 The existence of Article 43(3) AP I, which requires notication for other armed units within a state, many of which would also depend rather on a department of interior than department of defence, further supports the necessity of maintaining a distinction between attribution and combatant status (discussed below). In addition, such an interpretation may contort and stretch the compliance mechanisms of IHL. States are supposed to create their own disciplinary structures and mechanisms to implement IHL. If the United States has a law saying that it is only the Department of Defense (DoD) that is competent to create and determine the composition of the states armed forces, for IHL to allow the US State Department to effectively do so for example, on the grounds that the State Department grants close protection contracts to PMSCs such as Blackwater to protect the Coalition Provisional Authority in Iraq may in fact disrupt the states ability to comply with its international obligations. The US State Department is neither equipped nor competent to enforce military discipline or IHL overseas, but IHL (interpreted via the prism of the law on state responsibility), according to such a theory, would somehow have granted combatant status to a group that the state never intended to be combatants. In this regard, a word regarding PMSCs working with the US Central Intelligence Agency is warranted, if for no reason other than the fact that up to 70 per cent of the US intelligence budget is spent on contractors,44 who have been engaged in everything from operating ights for

42

43

44

In this conclusion we depart from the ICRCs Interpretive Guidance in that it states, Without any doubt, an organized armed group can be said to belong to a State if its conduct is attributable to that State under the international law of State responsibility. ICRC, Interpretive Guidance on DPH, p. 23. With all due respect, we are not convinced that is the case. Consider that it is DFID that contracts PSCs for the UK in Iraq and Afghanistan and not the UKs Ministry of Defence, which does contract PMSCs for logistics, etc. Simon Chesterman, We Cant Spy If We Cant Buy ! (2008) 19 EJIL 105574, 1056.

establishing the status of pmsc personnel under ihl 399

extraordinary renditions45 to allegedly carrying out assassination activities in place of or alongside government CIA agents.46 Since the US Central Intelligence Agency does not form part of the US armed forces, the apparent integration of PMSC contractors in the US intelligence community47 does not entail membership in the armed forces or combatant status. Clearly, CIA agents may be attributed to the US government, but that attribution is not tantamount to belonging to armed forces of a party to a conict. With increased reliance on PMSCs, the US DoD is also demanding and setting increasing levels of control over contractors. Thus, it is now envisioned that contractors will or should receive pre-deployment training by the DoD,48 and local eld commanders have some say over whether PMSCs in their area of responsibility may be armed and use force.49 These measures certainly appear to meet the standard of overall control and possibly even effective control necessary for attribution to a state in terms of state responsibility law indeed, some PMSCs could be de facto organs of a state.50 However, the fact that the acts of a PMSC
45

46

47

48

49

50

Ibid., pp. 10612. Dick Martys report to the European Parliament states that two of the renditions were carried out using an aircraft operated by a CIA-linked company. See CoE, Committee on Legal Affairs and Human Rights, Alleged Secret Detentions and Unlawful Inter-state Transfers Involving Council Of Europe Member States, Draft Report Part II, Explanatory Memorandum, AS/Jur (2006) 16 Part II (7 June 2006), para. 53. See also European Parliament, Transportation and Illegal Detention of Prisoners: European Parliament Resolution on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners (P6_TA-PROV(2007)0032-(2006/2200 (INI)), 2007). See A. Ciralsky, Tycoon, Soldier, Spy, Vanity Fair, January 2010; R. J. Smith and J. Warrick, Blackwater Tied to Clandestine CIA Raids, Washington Post, 11 December 2009. We note that, following a suicide bomb attack reported to have killed seven CIA operatives in Afghanistan in late December 2009, news reports stated, Two of those killed were contractors with private security rm Xe, formerly known as Blackwater, a former intelligence ofcial told CNN. The CIA considers contractors to be ofcers. See CNN, Intel Ofcer: CIA Ofcers Deaths Will Be Avenged, 31 December 2009, www.cnn.com/2010/WORLD/asiapcf/01/01/afghanistan.us.casualties/. Moshe Schwartz, Department of Defense Contractors in Iraq and Afghanistan: Background and Analysis, CRS (21 September 2009), pp. 201. See Department of Defense, Defense Federal Acquisition Regulation Supplement, Contractor Personnel Authorized to Accompany U.S. Armed Forces, 48 CFR Parts 212, 225 and 252 (Federal Register 31 March 2008, vol. 73, no. 62, Rules and Regulations, pp. 1676477). The analysis as to whether such a PMSC may constitute a militia forming part of the armed forces of a state is similar to that for belonging to a Party and therefore will be treated there to avoid repetition. See Ch. 2, section A above.

400 legal rules applicable to pmscs and their personnel

may be attributable to a state such that it can be said (in state responsibility terminology) to constitute a de facto organ of that state must not be confused with the question of whether the members of that de facto organ also have combatant status.51 Put another way, being a de facto organ for the purposes of state responsibility is not tantamount to constituting a militia forming part of the armed forces. Requiring a high degree of state control runs counter to the notion that the groups are independent from the state52 and moreover, counter to the notion that the bar should be set low so as to enable combatant status to accrue to actors such as resistance ghters and partisans.53 Since the criteria for combatant status evolved at a time when the developing concept of individual responsibility was viewed as fundamental to the implementation and enforcement of humanitarian law, as opposed to via state responsibility, one can enquire whether the potential discord between a group being able to acquire combatant status due to belonging to a state, yet that state not necessarily having responsibility for the actions of the group, is as problematic as it may seem on its face. First, it is possible to consider Article 91 AP I as the lex specialis, providing for attribution of resistance groups belonging to a state even if they are not under direction or control of that state. This provision stipulates that a party to the conict is responsible for all acts committed by persons forming part of its armed forces, and Article 43 includes all armed groups belonging to a state among its armed forces. Moreover, the fact that one of the other criteria the group as a whole must satisfy is compliance with IHL itself constitutes a built-in mechanism to protect and enforce IHL without the need to engage the responsibility of the state for the actions of the group. In IHL, it is not merely through ones status as a state actor that international legal rights and obligations accrue to individuals. It is widely accepted that nonstate actors, even those that cannot be attributed to a state, bear obligations under IHL. For all of these reasons, we reject the notion that a PMSC must be subject to either the effective or overall control of a state party in order
51

52

53

Some are careful to avoid complete conation of responsibility with combatant status, but they nevertheless come close to such conation. See e.g. Carsten Hoppe, Passing the Buck: State Responsibility for Private Military Companies (2008) 19 EJIL 9891014, 1009, where he states, Thus, the contractors personnel can be considered members of the armed forces of the hiring state under Article 3 HC IV [Hague Convention IV] and Article 91 AP I for the duration of the contract and the armed conict. Schmitt, Direct Participation in Hostilities by Private Contractors or Civilian Employees, pp. 5289. Ibid.; Pictet, Commentary GC III, pp. 578.

establishing the status of pmsc personnel under ihl 401

to satisfy the criteria of belonging to a party, and we reafrm that the central factor in the belonging test is that a party accepts that the group ghts on its behalf. While this situation could change, for all the reasons described above, we conclude that at the present time the vast majority of PMSCs hired by states in conict situations do not satisfy this aspect of the test for combatant status.
1.1.2.ii Commanded by a person responsible for his subordinates When Article 4A(2)(a) was drafted, the concern was that any group for whom combatant status would be recognized should have something resembling military hierarchy and discipline.54 While the commander of such a group does not have to be a member of the state armed forces and may be a civilian, the idea is that the existence of responsible command acts as a guarantee for the respect of the other conditions of Article 4A(2), all of which are designed to ensure the highest possible level of respect for IHL and protection of civilians.55 The level of command sought should thus be sufcient to satisfy the spirit of the provision.56 Note, however, that even international criminal tribunals do not seek to identify rigid or de jure command structures when applying the law on command responsibility, which they view as integral to enforcing humanitarian law. Instead, they have acknowledged that:
[i]n many contemporary conicts, there may be only de facto, selfproclaimed governments and therefore de facto armies and paramilitary groups subordinate thereto. Command structure, organised hastily, may well be in disorder and primitive A tribunal could nd itself powerless to enforce humanitarian law against de facto superiors if it only accepted as proof of command a formal letter of authority, despite the fact that the superiors acted at the relevant time with all the powers that would attach to an ofcially appointed superior or commander.57

It should be recalled that we are concerned with the level of command responsibility within the PMSC, not the degree of command responsibility
54

55 56

57

In the words of the Commentary, The implication was that such an organization must have the principal characteristics generally found in armed forces throughout the world, particularly in regard to discipline, hierarchy, responsibility and honour. Pictet, Commentary GC III, p. 58. Commentary to Art. 4A(2) GC III: Pictet, Commentary GC III, p. 59. See Cline Renaut, The impact of military disciplinary sanctions on compliance with international humanitarian law (2008) 90 Intl Rev Red Cross 31926. See also A. M. La Rosa and C. Wuerzner, Armed Groups, Sanctions and the Implementation of International Humanitarian Law (2008) 90 Intl Rev Red Cross 32741. Prosecutor v. Delali (elebii) IT-9621-A (20 February 2001), para. 195.

402 legal rules applicable to pmscs and their personnel

the contracting state (if any) has over the PMSC.58 When it comes to internal PMSC command structure, many authors point to the fact that most PMSCs are founded and run by ex-military and thus have a natural tendency toward military hierarchy and structure that would meet the test of command responsibility.59 Again, any conclusion requires a case-bycase examination of each PMSC.60 Other authors argue that even corporate reason dictates a command structure within the entire PMC.61 In our view, it is not sufcient to presume that the fact that a company is a forprot corporate concern in and of itself justies a conclusion that any PMSC would meet the test for being commanded by a person responsible for his subordinates. The mere fact that business logic dictates that a company should be run according to a certain hierarchy and structure does not necessarily mean that all companies will be so organized. The essence of the provision is that there must be an identiable disciplinary structure that would allow the enforcement of IHL.62 This requirement may nevertheless be fullled by many PMSCs.
1.1.2.iii Fixed distinctive sign The next criteria of Article 4A(2) is that the group must have a xed distinctive sign recognizable at a distance. The reasoning supporting judicial decisions regarding the adequacy of various xed signs indicates that any uniform or sign must be sufcient to allow an external observer to distinguish between civilians and combatants.63 This requirement is obviously designed to help ensure respect for the principle of distinction.

58

59

60 61 62 63

This is a distinction between the ICRC studys Rule 4 and Art. 4A(2) GC III: Rule 4 says command responsible to a party, which suggests a stronger link between the command and the party than Art. 4A(2)s requirement of under a responsible command when the group in turn belong[s] to a Party. This discrepancy is due to our interpretation that the looser requirement of belonging (not necessarily tantamount to attribution) subsists. See e.g. Schmitt, Direct Participation in Hostilities by Private Contractors or Civilian Employees, p. 530. Schmitt also points this out. Ibid. Boldt, Outsourcing War, p. 526. Emphasis added. Pictet, Commentary GC III, p. 59. See Toni Pfanner, Military uniforms and the Law of War (2004) 86 Intl Rev Red Cross 93, 107, citing decisions of a Malaysian court and and Israeli court, Osman and Kassem, both of which are reproduced in Marco Sassli and Antoine Bouvier, How Does Law Protect in War? (Geneva: ICRC, 2006). The ICRCs concern has always focused on the distinction aspect of the sign; however, some at the diplomatic conference may have also construed it as evidence of belonging to a party in that wearing such a sign showed loyalty in the struggle. See Pictet, Commentary GC III, pp. 5960.

establishing the status of pmsc personnel under ihl 403

While anecdotes abound regarding the paramilitary nature of PMSC personnel and photographs occasionally depict individuals in distinctly military-like uniforms, most concur that PMSC personnel do not wear uniforms or a xed, distinctive sign.64 Empirical studies in Afghanistan have shown that:
some do wear visible company logos on hats, T-shirts or even uniforms, others wear civilian clothing and do not display company identication at all (or show IDs upon request). Marked cars are very rare and many cars do not even feature license plates. According to PSCs and clients interviewed, civilian clothing is often preferred in order to keep a low prole when escorting VIP clients 65

Others describe PMSC personnel as sporting a bewildering and amusing hodgepodge of tough guy attire.66 Some PMSCs forbid their employees from wearing uniforms; in some cases contracting states may forbid PMSCs to wear uniforms.67 Some, studying the impact of PMSCs from the perspective of local populations, recommend that PMSCs should be required to wear uniforms.68 Such a requirement could facilitate the ability of individuals affected by their actions to identify companies and
64

65

66

67

See Schmitt, Direct Participation in Hostilities by Private Contractors or Civilian Employees, pp. 527 ff.; Kenneth Watkin, Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy (2005) 2 Harvard Program on Humanitarian Policy and Conict Research, Occasional Papers, 67. Swisspeace, Private Security Companies and Local Populations. An exploratory study of Afghanistan and Angola (2007), p. 19. US Marine Corps ofcer cited in Schmitt, Direct Participation in Hostilities by Private Contractors or Civilian Employees, p. 530; see also the longer description in n. 77 of Schmitts text. US DoD Instruction 3020.41 (3 October 2005) states: 6.2.7.7. Clothing. The individual contractor or contingency contractor personnel are responsible for providing their own personal clothing, including casual and working clothing required by the particular assignment. Generally, commanders shall not issue military clothing to contingency contractor personnel or allow the wearing of military or military look-alike uniforms. However, geographic Combatant Commanders may authorize certain contingency contractor personnel to wear standard uniform items for operational reasons. This authorization shall be in writing and carried by authorized contingency contractor personnel. When commanders issue any type of standard uniform item to contingency contractor personnel, care must be taken to ensure, consistent with force protection measures, the contingency contractor personnel are distinguishable from military personnel through the use of distinctive patches, arm bands, nametags, or headgear. [Emphasis added.] Swisspeace, Private Security Companies and Local Populations, p. 19; however, in Angola it is more common for PMSCs to wear uniforms.

68

404 legal rules applicable to pmscs and their personnel

enable them to register complaints, but at the moment that requirement does not exist. Indeed, the simple fact that it is still only a recommendation may be further evidence that at present, most PMSCs do not meet this criterion. One authority argues that it is sufcient that the attire of members of a group makes them look like combatants rather than resembling civilians, as that would satisfy the spirit of the requirement and support the principle of distinction.69 Based on this theory, one could argue that the motley assembly of persons in tough guy attire may be sufcient. However, in our view it is necessary to require a greater degree of clarity and uniformity than that. It is imperative to recall that there are scores of different PMSCs operating in major conict zones, some of which would full the other criteria in this article such that a uniform could clinch combatant status, but most would not. Moreover, many are not in roles in which combatant status should even be an issue, but having it would make them legitimate targets for enemy forces.70 It is true that there may be a number of armed groups involved in a conict, but not likely upwards of 150, which is the case for PMSCs in Iraq. It is thus imperative that not only is the tough guy attire sufcient to distinguish PMSCs from regular civilians, but it must also be enough to distinguish them from other civilian PMSCs. Our understanding of the facts is that in many cases, this requirement is currently most frequently not met.71 Since groups must meet all criteria in the article, failing to satisfy this one means that such PMSCs do not have combatant status via the operation of Article 4A(2).
1.1.2.iv Carrying arms openly Again, the requirement that militias or volunteers carry arms openly is linked to the principle of distinction. According to the Commentary:
This provision is intended to guarantee the loyalty of the ghting, it is not an attempt to prescribe that a hand-grenade or a revolver must be carried at belt or shoulder rather than in a pocket or under a coat The enemy

69 70

71

Rogers, Combatant Status, p. 119. Indeed, in IHL there is a presumption that persons are civilians (unless they directly participate in hostilities) (See Prosecutor v. Gali (Trial Chamber Judgment) IT-9829-T (5 December 2003), para. 50). Khler, Private Sicherheits-und Militrunternehmen, arrives at the same conclusion. See pp. 847.

establishing the status of pmsc personnel under ihl 405

must be able to recognize partisans as combatants in the same way as members of regular armed forces, whatever their weapons.72

This requirement is not generally viewed as problematic for PMSCs. While some of those providing close protection services (bodyguarding) may wear concealed weapons, it appears that the majority who are involved in security services wear their arms openly. In this sense, while the tough guy attire of many PMSCs may not satisfy the requirement of a xed, distinctive sign, it likely does meet the requirement of bearing arms openly.
1.1.2.v Conducting operations in accordance with IHL It is important that the requirement to conduct operations in accordance with IHL should not be misunderstood. As for all the other criteria, it is the groups compliance as a whole that is relevant to the analysis, not the actions of a few individuals. Thus, the fact that there have been incidents by PMSC personnel violating IHL does not mean that PMSCs a priori do not meet this requirement or comply with IHL. What matters is whether in general they are instructed to do so and on the whole as a group generally do conduct their operations in accordance with IHL.73 One may be tempted to query whether the mere fact that PMSCs participate directly in hostilities without being incorporated into armed forces (i.e. without the benet of combatant status) means that they are not conducting their operations in accordance with IHL, since civilians do not have the right to conduct hostilities.74 However, the logic of the article does not permit such an interpretation: it is precisely designed to allow groups who do conduct hostilities to acquire combatant status. Therefore, the mere fact that they participate directly in hostilities with an unclear status cannot, in itself, be construed as conducting operations
72 73

74

Pictet, Commentary GC III, p. 61. Marco Sassli, Terrorism and War (2006) 4 JICJ 959. A US Department of Defense Directive on the DoD Law of War Program states: It is DoD policy that 4.2 The law of war obligations of the United States are observed and enforced by the DoD Components and DoD contractors assigned to or accompanying deployed Armed Forces. See US Department of Defense Directive 2311.01 E (9 May 2006). See Rogers, Combatant Status, esp. pp. 11923 for an argument that it should be considered to be against the laws of war to participate directly in hostilities for practical reasons, but an acknowledgement that it is not. The ICRCs Interpretive Guidance on direct participation in hostilities asserts that IHL neither prohibits nor privileges civilian direct participation in hostilities. ICRC, Interpretive Guidance on the Notion of DPH, p. 17.

406 legal rules applicable to pmscs and their personnel

in violation of IHL such that they are precluded from having such status acknowledged if all other criteria are fullled. It is thus entirely possible that PMSCs will be able to meet this criterion.
1.1.2.vi Conclusion on Article 4A(2) GC IV In general, on the one hand, it has been seen as benecial to both civilians and combatants to interpret Article 4A(2) rather broadly; that is, to be rather disposed to grant combatant status than to set the bar too high. The reason for this is the idea that if persons in these types of armed groups benet from combatant status and therefore will not be prosecuted for lawful acts of war they will be more likely to take care to make sure that they in turn respect the laws of war. The protection of ghters as combatants is thus seen as having a trickle-down effect that will protect civilians.75 On the other hand, one may query whether recognizing combatant status for groups such as PMSCs, when even the states contracting them tend to deny they are combatants, risks encouraging a group of individuals that states do not wish to participate in hostilities to do just that on the understanding that they are permitted by IHL to behave as combatants. Contracting states play an awkward role in this dilemma since such states at times give PMSCs ambiguous and inappropriate roles that are prima facie incompatible with their stance that all contractors are civilians. In addition, PMSCs and their staff deny that they are combatants. Of course, in law, the legal classication by the addressees of a rule is not decisive. However, as long as states which are not only addressees, but also creators and interpreters of international law PMSCs, their staff and their critics consider them as not to be combatants, one should not lightly conclude that they are nevertheless combatants. The fact that this Article 4A(2) analysis must be made for each PMSC (company, not individual) is not inconsequential considering that there have been scores of PMSCs operating in Iraq and Afghanistan.76 It is emblematic of how PMSCs pose particular problems for IHL. International humanitarian law must be applied in such a way as to make it reasonably possible for combatants to comply with it. If it is virtually impossible for opposing forces to know which PMSC employees are
75

76

Derek Jinks, The Declining Signicance of POW Status (2004) 45 Harvard Intl LJ 367442. Including during the period when the conict in Iraq was unquestionably an international armed conict such that combatant status was an issue.

establishing the status of pmsc personnel under ihl 407

accurately perceived as having combatant status (and therefore as legitimate military objectives) and which PMSC employees are civilians (the shooting of whom could constitute a war crime, except for such time as they directly participate in hostilities), the resulting confusion could discourage any attempt to comply with humanitarian law. Certainly, status determination is often a difcult question, even for some members of the armed forces (for example, in covert operations),77 but the proliferation of groups and individuals with an ambiguous status in situations of armed conict exacerbates the problem. According to our analysis, in the majority of cases, PMSCs do not full all of the requirements xed, distinctive sign and belonging being the most problematic and as such cannot acquire combatant status through the operation of Article 4A(2). In addition, a teleological interpretation of Article 4A(2) militates against using that article to dene PMSC employees as combatants, as such a use of the provision runs counter to its historical purpose, which was to allow for groups such as the partisans in the Second World War to have POW status.78 Those partisans are much more easily equated with the remnants of defeated armed forces or groups seeking to liberate an occupied territory than with PMSCs. Indeed, the resistance role of these militias was a (sometimes thorny) factor in granting them POW status.79 Granting combatant status to security guards hired by an occupying power (i.e. in the case of Iraq) turns the purpose of Article 4A(2) on its head, for it was not intended to allow for the creation and use of private military forces by parties to a conict, but rather to make room for resistance movements and provide them with an incentive to comply with IHL. The very denition of mercenaries some thirty years later that seeks to remove combatant status from precisely such private forces is further evidence that the purpose of Article 4A(2) remained paramount at least through the 1970s. While there is no obligation to restrict the interpretation of Article 4A(2) to its historical purpose, advertence to that purpose provides some indication of the inadequacy and inappropriateness of using that provision in the context of modern private military and security companies. Finally, here and throughout the discussion of combatant status on this ground or that indicated below under Article 43 AP I, it is important
77

78

W. A. Solf, Article 43 in M. Bothe, K. J. Partsch and W. A. Solf, New Rules for Victims of Armed Conict: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (The Hague: Martinus Nijhoff, 1982), p. 236. 79 Pictet, Commentary GC III, pp. 52 ff. Ibid., pp. 539.

408 legal rules applicable to pmscs and their personnel

to recall that, in case of doubt, it is the detaining power that is empowered by law to determine whether an individual has combatant status or not.80 Thus, if a reasonable, good-faith interpretation and application of Article 4A(2) would allow a detaining power to reach the conclusion that a group does not full all the criteria necessary for combatant status, that power would be fully within its legal rights to deny POW status to such captured individuals. This argument may seem to cut both ways in that if a detaining power were to consistently deny PMSCs POW-status, yet attack them as though they were combatants, such an approach would not be in good faith. While that is true, the rules on direct participation in hostilities (that we will see below) nevertheless allow armed forces to attack non-combatants if they are directly participating in hostilities, albeit with a greater restriction in terms of time and circumstances than if they are deemed to be combatants. 1.1.3 Article 43 AP I In Additional Protocol I of 1977, there was an effort to provide a unied concept of armed forces and combatants. Article 43 AP I incorporates aspects of both Article 4A(1) and 4A(2),81 stating:
The armed forces of a Party to a conict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conict.

According to some authors, the relevant aspects of Article 43 do not make a signicant difference in practice to the position of the staff of PMCs/PSCs just outlined.82 While this may be globally true, it is useful to consider a few aspects of Article 43 that do have an impact on PMSCs capacity or likelihood to have combatant status. Overall, the analysis of whether a group or individual has been de jure incorporated into a states armed forces will be the same under Article 4A(1) GC III and Article 43 AP I. However, it may be appropriate to consider whether Article 43 in some ways broadens and in other ways limits
80 81 82

Art. 5(2) GC III. And Art. 4A(3) GC III, but that is not relevant to the present discussion. Emanuela-Chiara Gillard, Business Goes to War: Private Military/Security Companies and International Humanitarian Law 88 Intl Rev Red Cross 52572, 536.

establishing the status of pmsc personnel under ihl 409

whether PMSCs and their personnel may be considered to be part of a partys armed forces. One author argues that Article 43 makes possible the de facto incorporation of PMSC personnel on an individual basis.83 Whereas de facto combatant status accruing to a PMSC as a whole under Article 4A(2) GC III requires an analysis of the characteristics of the company as a whole, it is possible to interpret Article 43 as allowing for de facto incorporation of individual persons deployed in a conict zone by a PMSC, based on the relationship of the individual to the armed forces of the state and the individuals specic role. A situation where such an argument may be possible, for example, is where the personnel are effectively hired to the military as individuals who perform specic technical or expert functions, such as the private interrogators and interpreters working within the US military hierarchy in Abu Ghraib prison in Iraq, or technicians accompanying hi-tech weapons systems under habitual relationship contracts.84 Most commentators take the view that individual incorporation is very difcult to envisage on a de facto basis such as this, as domestic law generally makes a clear distinction between enlisted and non-enlisted personnel, and in this instance domestic law would be decisive.85 Moreover, the analysis of the individual in question must be careful and precise: although the author who postulates this theory cites Abu Ghraib interrogators as an example, in fact, the US militarys own investigations into the scandal of prisoner abuse, including by private contractors, indicated that contractor personnel were not actually integrated into any formal system of military command and discipline and, thus, they would not meet the requirements of the article for such de facto incorporation.86
83 84

85

86

Boldt, Outsourcing War, pp. 51415. Ibid. (regarding military support operations), pp. 507 and 527 (regarding interrogators); Michael E. Guillory, Civilianizing the Force: Is the United States Crossing the Rubicon? Role of Civilians under the Laws of Armed Conict (2001) 51 Air Force L Rev 11142, 125. See Boldt, Outsourcing War, pp. 51416, although it is arguable that the one positive example he mentions, of the Sandline forces in Papua New Guinea, was not in fact a case of incorporation into the armed forces, but rather into the police forces, using the title of special constable. Ibid., p. 527: CACI interrogators in Iraq, for example, work individually, assigned to a special unit and, at least theoretically, are under the supervision of military personnel. However, see Investigation of the 800th Military Police Brigade, AR 156 (the Taguba Report), 27 May 2004; and Investigation of the Abu Ghraib Detention Facility and the 205th Military Intelligence Brigade (the Jones/Fay Report), and Final Report of the

410 legal rules applicable to pmscs and their personnel

On the other hand, if a state is a party to Protocol I, Article 43 limits whether PMSCs may acquire combatant status. Article 43(3) imposes an explicit obligation on state parties to notify other parties to the conict whenever they incorporate a paramilitary or armed law enforcement unit into [their] armed forces. This requirement may affect a conclusion as to whether a PMSC as a whole can be considered to lawfully form part of the armed forces of a state.87 One may doubt whether PMSCs (other than those entrusted with law enforcement tasks) fall at all under this provision. If they do, the question arises whether the notication is constitutive for combatant status. Some authors contend that this requirement is not constitutive of combatant status and that a state failing to provide notice could nonetheless lawfully use paramilitaries as part of its armed forces.88 One may disagree with that contention for a number of reasons. First, this provision indicates that the other side must be able to know who opposing forces are and, as such, is critical to supporting the principle of distinction. Indeed, one authority argues that:
from the point of view of international law, this decision [to incorporate such forces] just like any similar internal act with international legal relevance only becomes effective through the international legal act of notication If such notication has been given, then the combatant status under international law of the affected paramilitary or armed law enforcement agencies in the event of a conict is clearly secured. The effectiveness of combatant status is established and this is crucial solely by the fact of notication.89

In light of the protection purposes of IHL, one may object that individuals (e.g. members of a gendarmerie) who respect all obligations under

87

88

89

Independent Panel to Review Department of Defense Operations (the Schlesinger Report), Panel Chartered by US Secretary of Defense 12 May 2004, Delivered August 2004. See also Schmitt, Direct Participation in Hostilities by Private Contractors or Civilian Employees, p. 525. Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Customary International Humanitarian Law , 2 vols. (Cambridge University Press, 2005), vol. 1, p. 17. They arrive at this conclusion despite citing a considerable amount of supporting practice of the opposite view and their own acknowledgment that this rule supports the principle of distinction, admitting that confusion is particularly likely since police forces and gendarmerie usually carry arms and wear a uniform. Ibid. This issue was a matter of considerable debate during the drafting of the conventions. States whose national legislation provides that they may participate in hostilities during conicts are supposed to append notications to the depository. Belgium and France have done so. See www.icrc.org. Ipsen, Combatants, p. 309. Emphasis added.

establishing the status of pmsc personnel under ihl 411

IHL should not lose their combatant and POW rights just because their state did not comply with its obligations, just as child soldiers do not lose combatant status just because a state may not incorporate them into its armed forces. However, from the point of view of the cardinal principle of distinction, it can be justied that this category of combatants only gains combatant status through a formal act of notication. All other categories of combatants are recognizable as such because of their obligation to distinguish themselves from the civilian population. Members of law enforcement units too, wear uniforms and carry weapons, but they are normally civilians under IHL. To make sure that the enemy respects them as such (which is important for the maintenance of law and order in times of armed conict), the latter must have the right to be clearly informed of exceptions. Secondly, what is perhaps more important is not only that states do not inform the other side that PMSCs have been incorporated into their armed forces, but in fact that they deny that PMSCs are part of the armed forces (i.e. in terms of combatant status). Therefore, we must conclude that either that denial in itself constitutes a violation of Article 43(3), or that it is incorrect in law to conclude that such PMSC personnel have combatant status.90 Indeed, as Schmitt points out, Article 43(3) conrms that agencies such as armed police units and paramilitary groups even those formally recognized in a states internal law are civilian in nature, such that, without formal incorporation and notice, any participation by them in hostilities would be direct participation by civilians and thus contrary to IHL.91 Schmitt concludes that the requirement of such notication for more informal groups such as PMSCs is thus even more salient than for formal state organs.92 We agree. The previous pages have shown that it is unlikely that in many cases PMSC contractors will have the status of combatants in international armed conicts, although this conclusion is admittedly less based upon a

90 91

92

The US is not a party to Additional Protocol I. Michael Schmitt, Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, Expert Paper (2004) (In context of ICRC Expert Meetings on DPH), p. 10. Note also that the justication for NATO directly targeting the Serbian police (controlled by the Minister of the Interior) was that they were allegedly involved in ethnic-cleansing operations and therefore directly participating in hostilities. Doubts about whether the police had been formally incorporated into the Serbian armed forces meant that they could not be directly targeted as members of the armed forces. See ICRC, Third Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2005), p. 11. Ibid.

412 legal rules applicable to pmscs and their personnel

specic treaty text, but rather on an overall assessment. This conclusion has important repercussions for the rest of the legal framework dening the rights and obligations of these actors, especially in terms of the types of activities that governments and others may contract them to carry out and the limits within those activities. Following a discussion of combatants in non-international armed conicts and the other possible statuses of PMSCs, we will assess and describe that legal framework and its impact on the lawful use of PMSCs.

1.2 Non-international armed conicts and PMSCs 1.2.1 Combatant status in non-international armed conicts At rst glance, the IHL of non-international armed conicts does not need to dene combatants. It provides basic guarantees of humane treatment for all those who do not or no longer actively participate in hostilities, including members of armed forces who have laid down their arms.93 Once in enemy hands, there is no distinction between former ghters and those who never fought. In the conduct of hostilities too, as no states admit combatants privilege in non-international armed conicts, there is no need to dene those who have a right to participate similar to that mentioned in Article 43(2) AP I which states that in international armed conicts: Members of the armed forces have the right to participate directly in hostilities. However, as civilians are protected against attacks, it is crucial to determine who is not a civilian or who is (for other reasons) not covered by this protection. In terms of simple logic, it is impossible to imagine how civilians could be dened otherwise than in contrast to those who ght. The difculty thus shifts in non-international armed conicts from that of dening combatants to that of dening what acts constitute active or direct participation in hostilities, and furthermore, those direct participants who may be considered ghters. Article 3 common to Geneva Conventions IIV protects persons taking no active part in the hostilities and Article 4 AP II protects [a]ll persons who do not take a direct part or who have ceased to take part in hostilities. Active and direct participation amount to the same thing. The equally authentic French and Spanish texts use the same term. Traditionally, the analysis focuses on acts and activities, rather than on status of persons. While the ICRCs study on customary IHL attempted to bring some clarity to the denition of combatants for both international and non93

Art. 3 common to Geneva Conventions IIV. Art. 4 AP II protects [a]ll persons who do not take a direct part or who have ceased to take part in hostilities.

establishing the status of pmsc personnel under ihl 413

international armed conicts, in particular with regard to the elements of combatant status entailing loss of protection from attack rather than its concomitant rights and protections (e.g. POW status, immunity from prosecution),94 even the authors of that study had to admit that for noninternational armed conicts, the notion depends on a clear denition of direct participation in hostilities.95 As we noted above, the IHL of non-international armed conicts contains no reference to combatants, nor any status of combatant or POW. Indeed, no state accepts that its own citizens waging an armed conict against the government or against each other have a right to commit acts of hostility and, moreover, that they may not be punished for such acts, which is a privilege inherent to combatant status. While it may be understandable that states wish to retain the right to punish and/or treat as common criminals those who take up arms against it, during the actual hostilities this lack of a denition of combatants in non-international armed conicts nevertheless creates practical difculties, in particular for a state and its armed forces to know who may be lawfully attacked and when. Under Article 13 AP II and a parallel rule of customary international law, attacks on civilians are prohibited and the civilian population enjoys general protection against the dangers arising from military operations. Article 13(3) AP II stipulates that civilians enjoy protection against attacks unless and for such time as they take a direct part in hostilities. No denition of civilians is given, however, for this context. How, then, does one distinguish between ghters and civilians in non-international armed conicts? One may deduce from these rules and from the absence of any mention of combatants that everyone is a civilian in a non-international armed conict and that no one may be attacked unless he or she directly participates in hostilities. However, rst, it would then be astonishing that Article 13 uses the term civilian instead of a broader term such as person.96 Secondly, if everyone is a
94

95

96

The Commentary to Rule 1 (Distinction between civilians and combatants) states: The term combatant in this rule is used in its generic meaning, indicating persons who do not enjoy the protection against attack accorded to civilians, but does not imply a right to combatant status or prisoner-of-war status. Henckaerts and Doswald-Beck, Customary International Humanitarian Law, p. 3. Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Commentary to Rule 6, p. 21, and otherwise throughout Commentaries to Rules 1, 3, 5 and 6. CUDIH, Expert Meeting on the Right to Life in Armed Conict and Situations of Occupation (September 2005), www.adh-geneva.ch/events/expert-meetings.php [UCIHL Report], p. 34.

414 legal rules applicable to pmscs and their personnel

civilian, the principle of distinction, which is a fundamental principle of IHL, becomes meaningless and impossible to apply.97 Thirdly, Article 3 common confers its protection on persons taking no active part in hostilities, including members of armed forces who have laid down their arms or are otherwise hors de combat. The latter part of the phrase suggests that for such members of armed forces98 it is not sufcient to no longer take an active part in hostilities to be immune from attack. They must take additional steps and actively disengage. Fourthly, on a more practical level, to prohibit government forces to attack clearly identied ghters unless (and only while!) the latter engage government forces is militarily unrealistic as it would oblige state forces to react to attacks rather than to operate preventively, while facilitating hit-and-run operations by the rebel group. These arguments may explain why even the ICRC Commentary to Protocol II considers that Those belonging to armed forces or armed groups may be attacked at any time.99 There are two ways to conceptualize this conclusion. First, direct participation in hostilities can be understood to encompass the simple fact of remaining a member of the group100 or of keeping a ghting function.101 Secondly, one may consider that ghters are not civilians (beneting from the protection against attacks unless and for such time as they directly participate in hostilities).102 Concerning members of an
97

98

99

100

101

102

ICRC, Third Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2005), p. 64; David Kretzmer, Targeted Killing of Suspected Terrorists: Extra-judicial Executions or Legitimate Means of Defence? (2005) 16 EJIL 171, 1979. Under common Art. 3, the term armed forces includes rebel armed groups (see Sassli, Terrorism and War, p. 977). Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, para. 4789. ICRC, Third Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2005), pp. 489. Israeli Supreme Court sitting as the High Court of Justice, Public Committee against Torture in Israel v. Government of Israel and ors, HCJ 769/02, 14 December 2006, para. 39 (Public Committee against Torture). The court uses a larger concept of direct participation than we would adopt, including, for example, voluntary human shields (see also Marco Sassli, Human Shields and International Humanitarian Law in A. Fischer-Lescano et al. (eds.), Peace in Liberty: Festschrift fr Michael Bothe (BadenBaden: Nomos, 2008), pp. 56778. This seems to have been the position of the Prosecution in the Strugar case: in a noninternational armed conict, the label of combatant which carries with it the right to participate in the armed conict and prisoner of war status would not specically apply. Nonetheless, the Prosecution submits that it is necessary to distinguish between individuals who are actually conducting hostilities on behalf of a party, i.e. members of the

establishing the status of pmsc personnel under ihl 415

armed group with a continuous ghting function, the ICRCs Interpretive Guidance chose the latter approach.103 However, both constructions raise difcult questions in practice. How do government forces determine membership of an armed group while the individual in question does not commit hostile acts? How can membership of the armed group be distinguished from simple afliation with a party to the conict for which the group is ghting in other words, membership of the political, educational or humanitarian wing of a rebel movement? One of the most convincing avenues envisaged is to allow attacks only against a person who either actually directly participates in hostilities or has, within the armed group, the specic function to commit continuously acts that constitute direct participation in the hostilities.104 According to the ICRCs Interpretive Guidance on direct participation in hostilities, which we will discuss in more detail below, under IHL, the decisive criterion for individual membership in an organized armed group is whether a person assumes a continuous function for the group involving his or her direct participation in hostilities [or continuous combat function].105 1.2.2 Status of members of armed groups or units? According to the ICRCs Interpretive Guidance on direct participation in hostilities:
In non-international armed conict, organized armed groups constitute the armed forces of a non-State party to the conict and consist only of individuals whose continuous function it is to take a direct part in hostilities (continuous combat function).106

103

104

105 106

armed forces and other organised armed groups, and civilians who are not conducting hostilities (Prosecutor v. Strugar (Appeal Judgment) IT-0142 (17 July 2008) 64 note 427). The Appeals Chamber itself was more ambiguous because it found on the one hand that it had been impossible to establish a nexus between the person targeted (a driver of the Dubrovnik Municipal Crisis Staff) and any possible direct participation in the hostilities at the time of the offence [i.e. the attack] (ibid., para. 184), but it had previously analysed what the victim did in the weeks preceding the attack (ibid., para. 182). ICRC, Interpretive Guidance on the Notion of DPH. ICRC, Third Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2005), pp. 434. ICRC, Interpretive Guidance on the Notion of DPH; ICRC, Third Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2005), p. 64; Nils Melzer, Targeted Killing in International Law (Oxford University Press, 2008), p. 321; Kretzmer, Targeted Killing of Suspected Terrorists, 1989, takes a similar approach. ICRC, Interpretive Guidance on the Notion of DPH, p. 33. Recommendation II, ICRC, Interpretive Guidance on the Notion of DPH, pp. 1617.

416 legal rules applicable to pmscs and their personnel

The Commentary further provides that:

Continuous combat function requires lasting integration into an organized armed group acting as the armed forces of a non-State party to an armed conict. Thus, individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function.107

The ICRC is also careful to outline the conditions of membership of an armed group, emphasizing that such membership cannot depend on abstract afliation, family ties, or other criteria prone to error, arbitrariness or abuse.108 Moreover, it points out that individuals who continuously accompany or support an organized armed group, but whose function does not involve direct participation in hostilities, are not members of that group within the meaning of IHL.109 For the ICRC, such individuals are in a position analogous to civilians accompanying the armed forces in the context of international armed conicts. In order to cease being perceived as having a continuous combat function, an individual must disengage from the group. Like membership and continuous combat function status itself, such disengagement need only be de facto; no ofcial declaration is necessary.110 Rather, an individual may continue to work in support of a group, but only undertaking, for example, administrative or humanitarian roles, while ceasing in a lasting manner to directly participate in hostilities. Thus, in order to determine whether PMSCs may constitute ghters in non-international armed conicts, it is necessary to assess whether they are members of armed groups with a role that entails their direct participation in hostilities in such a way as to constitute a continuous combat function. These will inherently be highly factually dependent, and, moreover, are intrinsically linked with the more detailed analysis of direct participation in hostilities. The discussion below (section B) on direct participation should thus be read in this light. The different means of dening who is a ghter in non-international armed conict raises an important question with respect to PMSCs. Above, we explored the requirement of belonging in order for members of armed groups or militias to have combatant status under the IHL of international armed conicts. We argued that the fact that states and PMSCs deny that PMSCs have a ghting function is fundamental to the
107

Ibid., p. 34.

108

Ibid., p. 33.

109

Ibid., p. 34.

110

Ibid., p. 72.

establishing the status of pmsc personnel under ihl 417

analysis because in order to belong to a party to a conict and have combatant status, the party must accept that one ghts on its behalf. Is the same true for ghter status in non-international armed conicts? Put another way, do PMSCs who guard military objectives (and therefore could be said to directly participate in hostilities with a continuous combat function) belong to the party to the non-international armed conict that gave them that role, irrespective of whether the party acknowledges it as a ghting function? In our view, here, the answer is yes. The IHL of non-international armed conicts, especially with regard to distinguishing between non-state ghters and civilians, is even more highly fact-dependent than in international armed conicts. Moreover, ghter status in non-international armed conicts carries no implications of combatant privilege, since members of organized armed groups are always at risk of prosecution even for lawful acts of war. The ICRCs Interpretive Guidance on the Notion of Direct Participation in Hostilities suggests that only non-state organized armed groups in non-international armed conicts are dened and affected by the concept of continuous combat function.111 One may therefore wonder whether PMSCs contracted by a state party to a non-international armed conict tasked with guarding a military objective would not have ghter status, in contrast to PMSCs in the same situation but who were contracted by an organized armed group. If the same rules apply for dening members of state armed forces in international armed conicts as in noninternational armed conicts, then PMSCs contracted by states would not be considered ghters.112 This issue is important and tricky. Many PMSCs are contracted by states. Many conicts, including current ones in which PMSCs are used extensively (such as Iraq and Afghanistan), start as international armed conicts and evolve into non-international armed conicts. This would mean that during one phase of the same conict when contracted by the same party, a PMSC would not be considered a combatant, but during a second phase could be considered a ghter if we accept that state armed forces may also be in part dened or affected by the continuous combat function rule. The main concrete effect of this would be that PMSCs who were lawful targets only for the duration of their direct participation in hostilities would become targetable on a long-term basis, as long as they do not actively take steps to disengage from their role.

111

Ibid., Recommendation II.

112

Ibid., Recommendation III.

418 legal rules applicable to pmscs and their personnel

Arguments that may favour dening state armed forces according to the same rules as are applicable for non-state armed forces include respect for the principle of equality of belligerents. Why should, for example, the cook of the state armed forces be a lawful target, while the cook of an armed group would not be? While that may seem a valid question, serious doubts abound as to whether one can truly speak of an equality of belligerents in the context of non-international armed conicts. The illegality of the non-state armed forces activity means that they are always in a more precarious situation than state armed forces, despite the non-existence of POW status.113 There are no signs that the international community is contemplating changing the way state armed forces are dened in non-international armed conicts. In our view, at the present moment in time, it would seem that such a change could introduce considerable confusion and may even exacerbate the inequality of belligerents in non-international armed conicts. PMSCs contracted by state armed forces in such conicts thus do not become ghters when the conict becomes non-international. In conclusion, it is rare that PMSC personnel will have combatant status in international armed conicts. It may be the case, however, that they will be ghters with a continuous combat function in noninternational armed conicts, so long as they are not contracted by states. As we will illustrate below, under the binary structure of IHL, if individuals are not combatants, then they must be civilians.

PMSCs and other statuses under IHL

2.1 PMSCs as civilians accompanying the armed forces There is a category of persons provided for in the Geneva Conventions that seems perfectly suited to catch a signicant component of PMSCs and their activities: Article 4A(4), persons accompanying the armed forces without actually being members thereof . That paragraph provides that the following persons also have the right to POW status:
Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews,
113

E.g. while rebel ghters may be prosecuted for having participated in hostilities, even if rebel forces were to become the government (having defeated the government side), they could not prosecute government soldiers for having participated in hostilities against them as that would contravene the criminal law principle of nulla poena sine lege, since at the time of the hostilities it would not have been illegal for them to ght.

establishing the status of pmsc personnel under ihl 419

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

It must be stressed that such persons have POW status, but not combatant status, combatant immunity or combatant privileges and they may not be attacked like combatants. For all purposes other than treatment when fallen into the power of the enemy in an international armed conict, they are civilians. We have mentioned this category above, and in particular its relationship to Article 4A(2) groups114 and we will discuss the absence of combatants privilege below.115 It is an old category of POW, having been included in the 1929 Geneva Convention. The Conference of Government Experts studying the possibility of revising or drafting conventions for the protection of war victims in 1947 (which formed the basis for the negotiations of the 1949 Geneva Conventions) opined that the category should be maintained, but commented that the list given shows this clause to be old-fashioned, if not obsolete: such persons are today generally included in the armed forces.116 By a twist of history, such individuals are once again present in signicant numbers outside the armed forces and can thus benet from the protection of this article. During the negotiations and drafting of Geneva Convention III and what became Article 4, the issue that most concerned delegates regarding this category was whether possession of an identity or authorization card should be an essential condition for POW status. In the end, the delegates decided that while authorization from the relevant forces was an essential condition for POW status for such civilians, being in actual possession of a card indicating such at the time of capture should not be required as it would put such individuals in a vulnerable position. Any limits on the roles they could undertake, were, however, not discussed117 and the list of roles contained in the article is illustrative and not exhaustive.118 However, it is clear that such roles may not include combat activity.119
114 115 116

117 118 119

See above, nn. 3541 and accompanying text. See globally, below, section B. Report of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims (Geneva: ICRC, 1947), p. 112. Final Record of the Diplomatic Conference of Geneva of 1949, vol. II-A, pp. 41618. Pictet, Commentary GC III, p. 64. ICRC, Interpretive Guidance on the Notion of DPH, pp. 367. See also D. Rothwell, Legal Opinion on the Status of Non-Combatants and Contractors under International

420 legal rules applicable to pmscs and their personnel

States using civilians in such roles consider that they are not combatants.120 Moreover, the limitation is important to preserving the distinction between what constitutes mere support for the war effort (which is not a combat activity leading to loss of protection from attack) and what is combat activity. To consider that such individuals are in any case combatants due to these roles would obliterate that distinction. The idea that POW status could be given to persons who do not have combatant status is by no means anomalous in IHL.121 For individuals such as medics and chaplains, who are even members of the armed forces but who do not have combatant status, the notion that their POW status would not prevent their being prosecuted for direct participation in hostilities if their actions crossed the line from force used in self-defence to direct participation in hostilities is a logical and necessary consequence of their lack of combatant status. The same logic applies to PMSC civilians accompanying the armed forces. That being said, the proximity of such individuals to the battle zone by virtue of their roles may entail a greater need to have recourse to force in self-defence.122 A number of PMSCs fall easily into this category, as foreseen by US DoD directives and the Status of Forces Agreements of other states.123 Clearly, based on the text of the article itself, the primary condition is that such PMSCs be authorized by the armed forces they accompany to do so. As such, PMSCs hired by non-government organizations (NGOs),

120

121

122

123

Humanitarian Law and Australian Law (December 2004), www.aspi.org.au/pdf/ASPIlegalopinion_contractors.pdf, para. 8a. See also Khler, Private Sicherheits-und Militrunternehmen, p. 99. See for US DoD Directive 3040.21 (5 October 2005); for Australia, see the opinion of Rothwell, above n. 119. See also Khler, Private Sicherheits-und Militrunternehmen, pp. 98100. E.g. members of medical units and chaplains are members of the armed forces but do not have combatant status: Art. 43(2) AP I. Any civilian who is incorporated into the armed forces and who is not a medic or chaplain does, however, have combatant status. See Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, p. 515 (Art. 43). The drafters of the Geneva Conventions limited the force that could be used from hospitals for them to retain protected status and they could have made a similar limitation here. If they were negotiating this provision today, this would surely be the most crucial issue but, as indicated, at the time it was thought that this category was nearly obsolete. DoD Instruction 3020.41 (3 October 2005) on Contractor Personnel Authorized to Accompany the U.S. Armed Forces. Australian Status of Forces Agreements provide for liability structures of civilians accompanying the Australian Defence Forces when deployed abroad: see Rothwell, Legal Opinion , esp. paras. 5 and 235.

establishing the status of pmsc personnel under ihl 421

private companies, or even by government departments other than defence departments (depending, of course, on internal laws) would not have POW status by virtue of Article 4A(4).124

2.2 PMSCs as civilians 2.2.1 Civilians: international armed conicts As will be discussed below in detail, under IHL, one is either a combatant or a civilian there is no third category.125 Within the broad category of civilians, under Convention IV there is a narrower category of protected persons (based largely on nationality) who benet from more detailed rules regarding their treatment in the hands of the enemy.126 Nevertheless, all civilians, including those who are not protected persons, are protected against attack (and from the effects of hostilities) as long as they do not actively or directly participate in hostilities.127 The consequence of direct participation in hostilities is a loss of protection from attack, but it does not alter or affect the civilian status of the individual in question. Thus, if PMSCs meet the criteria to be protected persons under Convention IV, they benet from the relevant and applicable provisions in that convention. A limited number of derogations are permitted for protected civilians engaged in activities hostile to the security of the state.128 Even if PMSCs are not protected persons within the meaning of Article 4, they benet from immunity from attack and from the fundamental guarantees that apply to all (provided they are not participating in hostilities) that are enumerated in common Article 3, Article 75 AP I (which is recognized as customary international law) and customary international law more generally. There may be some situations in which this either/or qualication seems unsatisfactory, as perhaps is the case with heavily armed PMSC groups.129 Indeed, in law, hard cases often push at the boundaries of
124 125 126

127

128

129

See also Rothwell, Legal Opinion, para. 5. The unlawful combatants thesis will be discussed below, section 2.3. See Art. 4 GC IV for a complete denition of who is a protected person under that convention. See also Prosecutor v. Tadi (allegiance). See also Marco Sassli and Laura Olson, The Judgment of the ICTY Appeals Chamber on the Merits in the Tadi Case (2000) 82 Intl Rev Red Cross 73369. Art. 13 GC IV, Art. 50 AP I; see also discussion on the notion of direct participation in hostilities, below. Art. 5 GC IV. Note, however, that for persons in occupied territories, the only rights that are forfeited by such persons are rights of communication (Art. 5(2) GC III). Terrorist groups are another category that some argue pose a challenge to this bifurcated analysis. See Sassli, Terrorism and War, p. 974.

422 legal rules applicable to pmscs and their personnel

existing legal denitions and lead to strange results. Nevertheless, under the current state of the law, anomalies do not call into question the overall framework for classifying persons under IHL. While it may seem outlandish to label PMSC contractors as civilians, we will see that the result of such classication in terms of rights, obligations and absence of combatant privilege is not absurd. At this point, it is relevant to point out that IHL requires armed forces to draw certain rebuttable presumptions regarding the persons it faces. When armed forces are making an attack, when in doubt as to the status of a person in the line of re, such forces must presume that those individuals are civilians. That is, they may not directly attack them. When, however, armed forces are detaining persons who have directly participated in hostilities, even if their status is in doubt, detaining forces should treat those persons as POWs until their status is determined otherwise. The presumptions thus lie with the highest level of protection in a given situation. 2.2.2 Non-participants: non-international armed conicts Additional Protocol II refers to civilians and the protections to which they are entitled without providing a denition of who is a civilian. Since there is also no denition of combatant or ghter in the text of Protocol II or in Article 3 common to the Geneva Conventions, it is not easy to arrive at a watertight, e contrario category of civilians. Again, however, as for ghters or armed groups in non-international armed conicts, the key dividing line relates to the concept of direct participation in hostilities. According to the ICRCs Interpretive Guidance on Direct Participation in Hostilities:
For the purposes of the principle of distinction in non-international armed conict, all persons who are not members of State armed forces or organized armed groups of a party to the conict are civilians 130

Civilians in non-international armed conicts, just as civilians in international armed conicts, benet from the protection against attacks and the effects of hostilities so long as they do not directly participate in hostilities. As we have seen, however, there is an emerging consensus that groups of ghters may be discerned who may be attacked on the basis of their group membership (when they have a ghting function) and not only when they actually participate in hostilities. The ICRC Interpretive
130

ICRC, Interpretive Guidance on the Notion of DPH, p. 27.

establishing the status of pmsc personnel under ihl 423

Guidance furthermore concludes that, just as for international armed conicts, civilians, armed forces, and organized armed groups of the parties to the conict are mutually exclusive categories also in noninternational armed conict.131 The protections accorded to civilians in non-international armed conict are phrased in more summary terms than those in international armed conicts as international law has historically been hesitant to regulate in a detailed manner how a state must run affairs within its territory.132 That being said, under customary international law, protections against attack and against the effects of attack for civilians are arguably identical in international and non-international armed conicts. In non-international armed conicts, PMSCs who are not participating in hostilities benet from similar fundamental guarantees as in international armed conicts, in particular those found in Article 4 AP II and Article 3 common to the four Geneva Conventions. We reiterate, in conclusion, that since in the large majority of cases, PMSCs are not combatants, and since IHL demands an either/or status determination, the vast majority of PMSCs are civilians, in both international and non-international armed conicts.

2.3 Unlawful combatants? Since the debate on PMSC personnel raises the central issue of who is a combatant (and who is a civilian) under IHL, as well as the consequences for direct participation in hostilities, it is appropriate to consider PMSCs in light of the debate on unlawful combatants. The contours of the debate may be summed up as follows: Some argue that a third status unlawful combatants who are neither combatants nor civilians is possible under IHL despite the fact that this is not a status provided for in the IHL treaties. The essence of the notion of unlawful combatants as promoted by its supporters is that individuals who directly participate in hostilities without having combatant status do not benet from the advantages of that status, nor do they acquire the advantages of civilian status, but continue to bear the disadvantage of combatants, in that they
131 132

Ibid., p. 28. Indeed, the international law of human rights plays a signicant role in noninternational armed conicts; for discussion of how it may affect two of the main issues regarding when persons may be attacked and detained in that context, see Marco Sassli and Laura Olson, The Relationship between International Humanitarian and Human Rights Law Where It Matters: Admissible Killing and the Internment of Fighters in Noninternational Armed Conicts (2008) 90 Intl Rev Red Cross 599627.

424 legal rules applicable to pmscs and their personnel

may be attacked at any time.133 This contention has arisen in the context of the conict between the United States and Afghanistan and, beyond that, the entire war on terror classied as an international armed conict under the Bush administration: US authorities have insisted that those who participate in hostilities against US armed forces but who do not have combatant status are unlawful combatants.134 Likewise, the Israeli government attempted to persuade its highest court to accept the concept of unlawful combatants with regard to Palestinian ghters.135 Under the IHL of international armed conicts, one is either a combatant or a civilian. This is conrmed by Article 50 AP I, which denes a civilian as any person who does not belong to one of the categories of persons dening combatants. Moreover, Article 4(4) GC IV on the protection of civilians stipulates that protected persons as dened by the rst three Geneva Conventions, which are addressed to combatants,136 are not protected persons within the meaning of Convention IV. This conrms that under the IHL of international armed conicts, a person is either one or the other. The Commentary to Article 4(4) GC IV states:
Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.137

133

134

135

136 137

See Knut Drmann, The Legal Situation of Unlawful/Unprivileged Combatants (2003) 85 Intl Rev Red Cross 4574 and Sassli, Terrorism and War for a comprehensive overview of this issue. For a legal explanation of the US position, see excerpts from interview with Charles Allen, Deputy General Counsel for International Affairs, US Department of Defense, 16 December 2002, Crimes of War Project, www.crimesofwar.org/onnews/news-pentagon-trans.html, and Geneva Convention Applies to Taliban, not Al Qaeda, American Forces Information Service News Articles, 7 February 2002, US Department of Defence, www.defenselink.mil/news/Feb2002/n02072002_200202074.html. Public Committee against Torture in Israel v. The Government of Israel, 13 December 2006 HCJ 769/02, at paras. 11 and 27. The court, however, refused. And which cover also, for example, medical personnel aiding combatants. J. 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. 51. Emphasis in original. Moreover, the preparatory work of the article conrms this interpretation. See Sassli, Terrorism and War.

establishing the status of pmsc personnel under ihl 425

Therefore, if PMSC personnel are not combatants, they must be civilians. The Commentary to Convention IV explicitly indicates that this interpretation applies to precisely the type of persons under scrutiny here, stating, If members of a resistance movement [or other group] who have fallen into enemy hands do not full th[e] conditions [of 4A(2)], they must be considered to be protected persons within the meaning of the present Convention.138 This conrms that those who ght without fullling the criteria to acquire combatant status are nonetheless civilians. The notion of unlawful combatants remains a controversial concept, unsupported by the ICRC and much academic commentary,139 the preferred view being, as mentioned above, that there is no third category in IHL, so that even though some states may choose to designate some unprotected combatants (civilians participating in the conict) or unprivileged belligerents (because they ght without combatant privilege) as unlawful combatants for the purpose of domestic law, this is not a meaningful category in IHL. Indeed, for the reasons explained above, this is the view we take. Furthermore, in our view, the principle of equality of belligerents and the need for an incentive to comply with IHL demands consistency when interpreting the law vis--vis insurgents in Iraq, al Qaeda and Taliban ghters in Afghanistan, and PMSC personnel. While one could be concerned that the concept of unlawful combatants poses risks for PMSCs (in that they could be denied the protections due to civilians who directly participate in hostilities if the concept is applied to them), in the current climate this scenario is highly unlikely since it is predominantly states that rely heavily on PMSCs that are also proponents of the concept of unlawful combatants.140 In our view, the more likely present risk is the damage done to the integrity and
138 139

140

Pictet, Commentary GC IV, p. 50. Y. Naqvi, Doubtful Prisoner-of-War Status (2002) 84 Intl Rev Red Cross 57194; Luisa Vierucci, Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to which Guantnamo Bay Detainees Are Entitled (2003) 1 JICJ 288314; Watkin, Warriors Without Rights?, p. 82; Drmann, The Legal Situation of Unlawful/Unprivileged Combatants; Sassli, Terrorism and War. In fact, one of the members of the UN Working Group on PMCs argues that PMSCs are unlawful combatants. See J. Gomez del Prado, Private Military and Security Companies and the UN Working Group on the Use of Mercenaries (2008) 13 J Conict & Security L 42950, 436. Gomez del Prado argues, Neither civilians nor combatants, these private soldiers are in fact unlawful combatants. Paramilitaries and terrorists could claim the same legitimacy as these private soldiers. With all due respect, we disagree with the head of the Working Group given our position that there is no third status under IHL.

426 legal rules applicable to pmscs and their personnel

persuasive authority of IHL by applying differential standards to actors that, in fact, may be in the same situation civilians who directly participate in hostilities. IHL provides a coherent framework to cover all persons who nd themselves in a situation of armed conict. It is thus perhaps ironic that the biggest employer of civilians in PMSCs which have a growing record of taking a direct part in hostilities is the very state that has been vehemently and vociferously opposed to recognizing basic protection for those whom it considers to be unlawful combatants in the case of Afghanistan, in the context of the very same conict. Indeed, voluntarily creating a pool of good but potentially unlawful combatants while simultaneously condemning other (non-private-sector) civilian participants in hostilities verges on hypocrisy. Nevertheless, PMSCs cannot be considered unlawful combatants, even if they directly participate in hostilities without combatant status, because such a category does not exist under IHL.

2.4 Mercenaries? One often hears the employees of PMSCs being referred to as mercenaries. The word evokes a strong emotional reaction among many be it romantic notions of loners exercising an age-old profession, or vigorous condemnation of immoral killers and proteers of misery and war. However, as we have indicated above (see Chapter 1 above), there are also legal denitions of the term. Above we discussed the international conventions that specically aim to eliminate mercenarism through the criminalization of mercenary activities.141 Those conventions share a similar denition of the term with IHL; however, under IHL, it is not a violation of the Geneva Conventions or Protocols to be a mercenary and mercenarism in and of itself does not entail international criminal responsibility. In IHL, the consequence of being a mercenary is identical to that of being a civilian who directly participates in hostilities no POW status if captured, such that persons may be tried for the simple fact of ghting enemy armed forces. A mercenary as dened under Article 47(2) AP I may therefore be punished for direct participation in hostilities under the internal laws of the detaining power, but may be prosecuted for simply being a mercenary only if that state also has separate laws designating mercenarism as a distinct crime. In addition, mercenary status is relevant under IHL only in international armed
141

See Ch. 1, section A 5 above.

establishing the status of pmsc personnel under ihl 427

conicts (since combatant status and its privileges exist only in those conicts), whereas the mercenary conventions may also apply in situations of non-international armed conict.142 Article 47(2) AP I stipulates:
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 territory controlled by a Party to the conict; (e) is not a member of the armed forces of a Party to the conict; and (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.

These six criteria must be fullled cumulatively in order for a person to meet the legal denition of being a mercenary. For this reason, commentators argue that this denition is unworkable143 and that anyone who manages to get caught by it should be shot and their lawyer beside them.144 The consequence of being held to be a mercenary is established in the rst paragraph of Article 47: A mercenary shall not have the right to be a combatant or a prisoner of war. No sweeping conclusion can be drawn that all PMSC personnel are or are not mercenaries. The denition requires an individual determination on a case-by-case basis.145
142

143

144

145

See also Henckaerts and Doswald-Beck, Customary International Humanitarian Law, CIHL Rule 108, commentary re non-international armed conict, p. 395: Mercenaries participating in a non-international armed conict are not entitled to prisoner-of-war status as no right to that status exists in such situations. Franoise Hampson, Mercenaries: Diagnosis before Proscription (1991) 22 Netherlands Ybk Intl L 338, 1416. Sarah Percy observes that this statement was originally quoted in Geoffrey Best, Humanity in Warfare (London: Weideneld and Nicholson, 1980) but that it has been repeated by a number of authors since: Mercenaries: Strong Norm, Weak Law (2007) 61 Intl Organization 367, 369, n. 8. She further points out that Peter Singer noted that a member of the PMSC industry made this comment to him without referencing Best, indicating that Bests legal lessons have been internalized in the private military industry. This is a contrast to the nature of the evaluation conducted for Art. 4A(2) GC III, which looks at the group as a whole as opposed to individuals fullling the criteria.

428 legal rules applicable to pmscs and their personnel

The customary nature of the rule relating to mercenaries is disputed. In 1987, the United States specically stated, We do not favour the provisions of article 47 on mercenaries, which among other things introduce political factors that do not belong in international humanitarian law, and do not consider the provisions of article 47 to be part of current customary law.146 On the other hand, the ICRC study on customary IHL lists it as customary, citing military manuals and practice. It cannot be construed as merely an e contrario reading of who is a combatant because even though the denition excludes members of the armed forces of a party, it would not necessarily catch Article 4A(2) GC III groups.147 It may be that the rule is customary but that the United States is excluded from its application on the grounds of its stance as a persistent objector. Under IHL, it is the detaining power that would make the determination whether a person is a mercenary by establishing a competent tribunal when POW status is called into question.148 We provided an example scenario in Chapter 1 above and discussed the contours of the denition of mercenaries as set out in Article 47(2) in some detail.149 Here, therefore, it sufces to reiterate our conclusion that while some individual employees or contractors may indeed satisfy all criteria and be validly held by a detaining power to be mercenaries, it is unlikely to affect the vast majority of PMSC personnel. A few further remarks are appropriate to complete the discussion. First, Additional Protocol I does not oblige a detaining power to deny a person POW status if he meets the conditions of Article 47(2). The text says that mercenaries shall not have the right to be POWs. This may be interpreted to mean they cannot claim the right to POW status that combatants enjoy, but may benet from it should the detaining power choose to accord it nonetheless; or it may mean that a detaining power must not grant mercenaries POW status. The Diplomatic Conference which adopted Protocol I declined requests to phrase the consequence of

146

147 148

149

Michael J. Matheson, Remarks in Session One: The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions (1987) 2 American U J Intl L & Policy 419, 426. It would, however, catch all armed forces under Art. 43 AP I. Art. 5(2) GC III obliges a detaining power to constitute a competent tribunal to determine, if any doubt arises, the status of an individual who claims POW status. Art. 45 AP I imposes the same requirement. See Ch. 1, section A 5 above.

establishing the status of pmsc personnel under ihl 429

mercenary status more categorically,150 which also indicates that the act of being a mercenary is not in itself a violation of IHL. Nevertheless, the consequences of the loss or denial of combatant status should not be underestimated: a person may face trial and conviction for murder if he has killed a combatant while participating in hostilities. Such crimes may carry the death penalty. 2.4.1 Non-international armed conicts and mercenaries under IHL As noted, the concept and consequences of being a mercenary under IHL cannot exist in the same way for non-international armed conicts since there is no combatant or POW status for a ghter to lose.151 One may do well to bear in mind, however, that an analogous application of the concept is not entirely impossible. Indeed, we recall that states are encouraged to and often do simply intern ghters in noninternational armed conicts in a manner similar to POWs rather than trying them for every hostile act, which may be seen as a preventive application of Article 6(5) AP II. As the concept of who constitutes a member of an armed group in a non-international armed conict develops and becomes accepted, one can imagine a party to a conict deciding to forego application of Article 6(5) for persons it deems to be mercenaries within that armed group. This scenario is purely speculative, however.

2.5 Conclusion on the status of PMSC personnel under IHL The vast majority of PMSC personnel will have the status of civilians (or non-participants) under IHL, and a number of those may be civilians accompanying armed forces with a right to POW (but not combatant) status.152 As we have indicated, that civilian status means that they may not, with impunity, directly participate in hostilities. In other words, it
150

151

152

Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, para. 1795: some delegations had sought more stringent wording, to the effect that mercenaries shall not be accorded POW status (emphasis added) but in the end a more neutral text was adopted. The fact that it tended to be African states that strongly backed this provision must thus be understood in context: at the time of its negotiation and adoption, conicts related to their territories were frequently national liberation wars such that IHL of IAC could be applicable to them under Art. 1(4) AP I, thus making the mercenary question very pertinent. In the International Code of Conduct for Private Security Providers (9 November 2010), the Rules on the Use of Force take for granted that PSCs have civilian status. See Rules 302. The Code is available online: www.icoc-psp.org/.

430 legal rules applicable to pmscs and their personnel

sets an important limit on the circumstances and degree of force they may use in a situation of armed conict. In the following two sections, we will elaborate on the laws comprising the web of rules on the use of force permissible for non-ghters in armed conicts and show how those rules affect the tasks that may easily be contracted out to private companies. The question at the heart of our inquiry is: What does civilian/nonparticipant status mean for the roles that can be given to PMSCs without infringing the dichotomy between combatants and civilians? The simple answer is that such individuals should not be given combat roles unless they have combatant status because they should not directly participate in hostilities without that status. PMSCs should seek to avoid activities that will lead them to directly participate in hostilities. In addition, they may not be given roles that are explicitly reserved to members of armed forces.153 On a separate note, if they are given other roles that are closely related to a conict but do not involve a combat role, states should make sure that they provide any additional explanation required for a person to carry out such tasks in full compliance with the obligations set out in the Conventions. In our nal section we will provide examples of areas where additional eshing out or explanation of rules may be appropriate in the case of outsourcing. Of course, there are many roles PMSCs may be contracted to do in the context of armed conict that do not lead them to directly participate in hostilities or carry out acts that may weaken the principle of distinction between civilians and combatants. Indeed, the discussion of Article 4A(4) GC III clearly shows that states have relied on civilians to provide logistical and catering support and other non-combat assistance to their armed forces for centuries. The cohort of PMSCs that are of greatest concern when it comes to the use of force in armed conict are those in security roles. In current conicts, approximately 1012 per cent of PMSC personnel are engaged in security provision under contract with the US DoD.154 While this is a relatively low percentage of the number of total contractors, it nevertheless represents a signicant number of

153 154

E.g. responsible ofcers of POW camps. See Art. 39 GC III and Ch. 1, section B 1 above. Special Inspector General for Iraq Reconstruction (SIGIR), Quarterly Report to US Congress (30 October 2009), p. 40. In Afghanistan, the US DoD has more contractors than armed forces. Seven per cent of the more than 74,000 PMSC/contractors were engaged in security tasks for the US DoD in 2009. M. Schwartz, Department of Defense Contractors in Iraq and Afghanistan: Background and Analysis (Congressional Research Service Report), 21 September 2009, p. 10.

impact of civilian status on rights and duties of pmscs 431

individuals and it may not in fact accurately reect the true numbers.155 It is this cohort of PMSC personnel that we are most concerned with in the following two sections. Indeed, as our discussion will show, it is not always easy or intuitive to know when a use of force crosses the line to constitute an impermissible combat role or direct participation in hostilities. In any case, all PMSC personnel should of course be wary of the risks of direct participation in hostilities and the limits of self-defence, and in addition should be aware of any legal obligations owing from IHL that are related to or govern the tasks with which they are charged.

The impact of civilian status on the rights and duties of PMSCs: direct participation in hostilities

As we have stated above, a persons status affects his right to directly participate in hostilities in the context of an international armed conict. We also noted that, in non-international armed conicts, IHL does not provide for a status of combatants but distinguishes solely between those who directly participate in hostilities and those who do not (or no longer) do so. In discussing unlawful combatants, mercenaries, ghters in noninternational armed conicts and civilians, we have hinted at some of the ways in which the concept of direct participation in hostilities is relevant to PMSCs. In this section, we aim to elucidate more fully the concept of direct participation in hostilities and to assess the activities of PMSCs in light of it. Indeed, in order for states to develop operational policies and rules of engagement that comply with their obligation to distinguish between persons who may be attacked and those who may not since direct participants in hostilities may be directly attacked by opposing enemy armed forces but non-participating civilians may not they have increasingly found it necessary to clarify with greater precision exactly what constitutes direct participation in hostilities. The ICRC thus led a
155

The October 2009 SIGIR report indicates that of the 174,000 contractors working in Iraq for the US Department of Defense at that moment, some 13,145 or 11 per cent were engaged in security functions. However, it is important to underscore that the same report indicates that other US departments known for hiring PMSCs as security personnel had not entered such persons into the relevant database; thus, their numbers, although suspected to be high, are unknown. See ibid., pp. 401. The US Department of State uses PMSCs for security of its embassies in Iraq and Afghanistan (see US Dept of State, Broadcasting Board of Governors and Ofce of the Inspector General, Performance Audit of the US Training Center Contract for Personal Protective Services in Afghanistan, Report no. MERO-A-0908, August 2009.

432 legal rules applicable to pmscs and their personnel

process of dialogues with experts drawn from military, civilian, and academic backgrounds with a view to establishing just such a consensus. Based upon ve years of dialogue, which did not lead to a consensus,156 the ICRC adopted in its own name the Interpretive Guidance on the Notion of Direct Participation in Hostilities in June 2009. We will take that document as our starting point as a means of outlining the key elements of the concept on the understanding that it represents an attempt to propose a balanced and practical solution that takes into account the wide variety of concerns involved and, at the same time, ensures a clear and coherent interpretation of the law consistent with the purposes and principles of IHL.157

Consequences for PMSCs of directly participating in hostilities

Before we delve into the intricacies and nuances of the concept, however, we nd it helpful to recall the consequences of direct participation in particular for individuals, but also for states and the integrity of IHL. The primary consequence of such direct participation is that persons who directly participate in hostilities in either international or noninternational armed conicts lose protection against attack during their participation. That is to say, they may be directly, intentionally targeted by opposing armed forces and, under IHL at least, the possibility to affect them incidentally must not be taken into account under the
156

157

For the positions taken by persons who had participated in the process of elaboration of the Interpretive Guidance but who did not entirely agree with the nal result, see esp. the articles in the forum Direct Participation in Hostilities: Perspectives on the ICRC Interpretive Guidance hosted by the NYU JILP (2010): Bill Boothby, And for such time as: The Time Dimension to Direct Participation in Hostilities (2010) 42 NYUJILP 741; W. Hays Parks, Part IX of the ICRC Direct Participation in Hostilities Study: No Mandate, No Expertise, and Legally Incorrect (2010) 42 NYUJILP 769; Michael Schmitt, Deconstruction Direct Participation in hostilities: The Constitutive Elements (2010) 42 NYUJILP 697; Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC Direct Particiation in Hostilities Interpretive Guidance (2010) 42 NYUJILP 641; and the response by Nils Melzer, Keeping the Balance Between Military Necessity and Humanity: A Response to Four Critiques of the ICRCs Interpretive Guidance on the Notion of Direct Participation in Hostilities (2010) 42 NYUJILP 831. As the ICRC, Interpretive Guidance on the Notion of DPH states at p. 9, the document is widely informed by the discussions held during [the] expert meetings but does not necessarily reect a unanimous view or majority opinion of the experts. For a summary of the discussion of the experts as to the legal status of the fruits of their debates, see ICRC, Fifth Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2008), pp. 736 and the ICRCs position on the place of dissenting expert opinions within a nal document at pp. 778.

impact of civilian status on rights and duties of pmscs 433

proportionality principle and no precautionary measures must be taken for their benet. In addition, they may be prosecuted for having directly participated in hostilities. There are nuances to these consequences, however. First of all, as mentioned above, the Interpretive Guidance indicates that, while it is not universally agreed, there is an emerging consensus that we must distinguish between two categories of direct participants in hostilities to know when they may be attacked. That is to say, there is a difference between the duration of loss of protection for members of armed groups with a continuous combat function as compared to individuals who are not armed group members with such a function but who nevertheless sometimes (even frequently) directly participate in hostilities. The temporal aspect of loss of protection will thus differ depending on whether a PMSC employee is considered to be an armed group member with a continuous combat function or whether he is simply deemed to be an individual who on his own occasionally directly participates in hostilities. Above, we discussed the contours of armed group membership and continuous combat function in relation to PMSCs; that discussion should be borne in mind throughout this section. For individuals, there is a loss of protection from attack, but this lasts only for the duration of their direct participation. (Further elements of duration will be outlined in more detail below.)158 In addition, civilian direct participants may be prosecuted for acts such as killing enemy armed forces acts which would not be unlawful if committed by a member of the armed forces.159 In this respect, the consequences are the same if PMSC contractors are civilians who directly participate in hostilities and if they are persons who are found to be mercenaries.160 Members of armed groups with a continuous combat function, on the other hand, lose protection from attack for as long as they maintain that role and do not actively disengage from the armed group.161 This extensive loss of protection is counterbalanced with an appeal by IHL for states not to prosecute such individuals for lawful acts of war (or hostile acts that comply with IHL). Such an appeal would be in line with Article 6(5) AP II, which encourages at least amnesty in such cases.

158 159 160 161

See below, section 2.2. Besides chaplains and medical personnel, who are not combatants. See Art. 47(1) AP I and discussion above. See above discussion on ghters in non-international armed conict. Of course, if they are injured, captured or otherwise hors de combat, they are also protected against direct attack.

434 legal rules applicable to pmscs and their personnel

There is disagreement among experts as to whether contractors who are civilians accompanying the armed forces, and, as such, entitled to POW status (i.e. under 4A(4) GC III) are immune from prosecution for committing hostile acts if they directly participate in hostilities. In other words, there is some controversy as to whether civilians accompanying the armed forces, including PMSCs, constitute a special group when it comes to consequences for direct participation in hostilities. As we noted above, it is possible that some PMSCs (companies or individuals) may have the status of civilians accompanying the armed forces, a fact which makes it worthwhile to explore this issue in a little more detail. An earlier draft of the ICRCs Interpretive Guidance note stated, in contradistinction to ordinary civilians, [civilians accompanying the armed forces] are entitled to POW-status upon capture but, nevertheless, lack combatant privilege and may be prosecuted and punished under the domestic law of the capturing state for the mere fact of having directly participated in hostilities.162 During the expert meetings, one expert took issue with this statement, insisting that civilians accompanying the armed forces retain all benets of POW status, including immunity from prosecution, even if they directly participate in hostilities.163 With respect, we disagree. Although the expert cited one case in which civilians accompanying armed forces who had fought opposing forces with anti-aircraft weapons retained POW status upon capture and were not prosecuted for direct participation in hostilities, that example merely indicates that a detaining power is not obliged to prosecute such civilians.164 It does not indicate or prove that a detaining power is prohibited from doing so. That is, it does not prove that Article 4A(4) civilians necessarily or by law must retain all the privileges of POW status even if they directly participate in hostilities. Another of the expert background papers cites two further examples from the Second World War in which civilians accompanying the armed forces who directly participated in hostilities were not prosecuted for those acts, but again this merely reinforces our conclusion that a detaining power is not obliged to prosecute.165 Without more, these examples do not indicate that a detaining power is prohibited from doing
162

163 165

ICRC, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2006), p. 35 (at p. 18 of draft Interpretive Guidance then being circulated). 164 Ibid., pp. 356. Ibid., p. 36. W. Hays Parks, Evolution of Policy and Law Concerning the Role of Civilians and Civilian Contractors Accompanying the Armed Forces, Expert Paper for the ICRCs Third Expert Meeting on the Notion of Direct Participation in Hostilities (2005). This

impact of civilian status on rights and duties of pmscs 435

so. Finally, the other hypothetical examples cited by another expert in support of his dissenting view refer rather to cases where it is highly debatable that the individual in question was actually directly participating in hostilities and therefore do not inuence our conclusion on this issue. For example, the expert argued that a sniper surveying an airbase could determine that the civilian contractor supervising repairs had a most important role and target him directly.166 In its nal version of the Interpretive Guidance, the ICRC merely states that civilians accompanying armed forces were never meant to directly participate in hostilities on behalf of a party to a conict.167 The document makes no comment or recommendation with respect to a prohibition to prosecute such individuals.168 In our view, the ICRC could have made a stronger statement: the notion that direct participation in hostilities by civilians accompanying armed forces is not prohibited by IHL does not necessarily entail that detaining powers are obliged to give those persons immunity from prosecution, just that they are not obliged to prosecute. This debate thus may have consequences for a relatively small but nonetheless important cohort of PMSCs. The second reason it matters if PMSC personnel directly participate in hostilities is that that participation may be harmful to the principle of distinction. The notion that the state is supposed to control the use of force (monopoly) is one common to political scientists, but it is also
seems to reect the advice the same expert provides to the US DoD, as, in an email to the Chairman of the Joint Chiefs of Staff Ofce of the Legal Advisor, the same expert wrote, A contractor who takes a direct part in hostilities remains entitled to prisoner of war status, but may be subject to prosecution if his or her actions include acts of perdy. Emphasis added. Email from Hays Parks to Col. Meier, quoted in 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, 259, n. 5. ICRC, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2006), pp. 356. In fairness, we note that the experts phrasing of the example is subtle, taking into account that different people may perceive the same situation differently. Nevertheless, if the experts view is that legally such actions should not be interpreted as constituting direct participation in hostilities, the emphasis should rather be on ensuring that combatants would not make such an error and directly target such civilian contractors. ICRC, Interpretive Guidance on the Notion of DPH, p. 38. The reason they had mentioned it was to clarify the difference between Art. 4A(4) GC III participants and regular civilian individuals who directly participate in hostilities to say precisely that the Art. 4A4 POW status does not entail immunity from prosecution if they directly participate in hostilities as civilians. ICRC, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2006), p. 36.

166

167 168

436 legal rules applicable to pmscs and their personnel

reected in the law.169 If the principle of distinction is eroded because people who are not state armed forces regularly participate in hostilities, we may see a weakening in protection of civilians. Finally, there is the question whether it is unlawful for states to allow, encourage or contract civilians to directly participate in hostilities. This issue was discussed above in Chapter 1 above when considering whether it is possible for persons who are outside of the chain of command to respect IHL. The ICRCs position is fairly clear that it is not a violation of a states obligations but at the same time it is emphasized that such a practice should be discouraged. Bearing these concerns in mind, in the discussion that follows we will outline the concept of direct participation in hostilities in some detail, measuring activities frequently undertaken by PMSCs throughout our analysis in terms of the standards set out in the Interpretive Guidance. Despite the distinctions noted in terms of consequences for the individuals themselves, the key elements of the concept and the types of acts that typically constitute direct participation in hostilities nevertheless remain the same for all groups.

Concept, elements and time frame of direct participation in hostilities: what counts are specic acts

The Interpretive Guidance of the ICRC is formulated as ten recommendations with an accompanying Commentary. The Commentaries provide further denitions of important related concepts and esh out difcult concepts more fully. According to the ICRCs Interpretive Guidance, hostilities are dened as the (collective) resort by the parties to the conict to means and methods of injuring the enemy, and participation refers to the (individual) involvement of a person in these hostilities.170 Direct participation thus focuses on an individuals specic acts rather than on a persons status, function or afliation.171

169

170

171

Even the European Commission for Democracy through Law (Venice Commission) has approached the issue from this angle. See Venice Commission, Report on Private Military and Security Firms and Erosion of the State Monopoly on the Use of Force (CDL-AD(2009)038, Study 531/2009) June 2009. ICRC, Interpretive Guidance on the Notion of DPH, p. 43. We note also that in English the conventions use the words actively and directly interchangeably, whereas in French the word directement is used consistently. Ibid., p. 44.

impact of civilian status on rights and duties of pmscs 437

2.1 Specic act

The notion of direct participation in hostilities refers to specic acts carried out by individuals as part of the conduct of hostilities between parties to an armed conict.172

The ICRCs Interpretive Guidance strongly emphasizes that the focus is on each individual act. The fact that a person has repeatedly directly participated in hostilities without being a member of an armed group with a continuous combat function may not give rise to a presumption on the part of enemy forces that that person continues to directly participate in hostilities when not carrying out specic hostile acts (inferred on the basis of intent or past behaviour).173 Focusing on specic acts thus allows the interpretation of the components of direct participation in hostilities to be consistent and to preserve the distinction between temporary loss of protection for individuals and the sustained loss of protection due to combatant status or continuous combat function.174 Thus, individuals who repeatedly engage in direct participation in hostilities without being armed group members with a continuous combat function cannot slide into the same category as such armed group members on the basis of that repeated participation. As such, the specic act element of the denition of direct participation in hostilities is the same for members of armed groups and individuals. It may seem neither straightforward nor intuitive to know how to distinguish between such a civilian and an armed group member with a continuous combat function, especially since such a determination will depend immensely on the quality of intelligence and information available to opposing forces.175 The pivotal piece of information will be

172 173

174 175

Ibid., Recommendation IV, p. 16. See also discussion in ICRC, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2006), pp. 2932 (membership approach) and 378. ICRC, Interpretive Guidance on the Notion of DPH, pp. 445. See esp. comments based on the experience of one of the experts, ICRC, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2006), pp. 301. See also the ICRCs comments regarding the difculty of knowing whether a civilian individual has done so on a recurring basis and has the intent to continue doing so at ICRC, Interpretive Guidance on the Notion of DPH, p. 45. We are, however, uncertain as to how, logically, the type of information required to determine whether an individuals function within an armed group involves direct participation on a continuous basis will be different to the type of information the ICRC suggests will be elusive for individuals.

438 legal rules applicable to pmscs and their personnel

whether a PMSC or some of its employees constitute an armed group or are members of an armed group. If so, then repeated specic acts of direct participation by an individual are more likely to entail a sustained loss of protection from attack than if the PMSC itself cannot be considered to be an armed group. When applying this analysis to reality, however, it should be recalled that, at present, it is predominantly wealthy states with highly developed militaries that are using PMSCs in the context of conicts against diffuse and nebulous armed groups. Those groups may have a lesser ability to gather and use intelligence on PMSCs (i.e. as constituting armed group members with a continuous combat function as opposed to merely being individuals) than a highly organized military force is likely to possess. This difculty is mitigated by the rule in IHL that if a person is not in the act of carrying out a hostile act, he must be presumed to be a civilian and therefore not liable/susceptible to direct attack. It nevertheless underscores the risks posed to the respect of IHL by an increasingly complex legal and physical terrain.

2.2 Constitutive elements The crux of the ICRCs Interpretive Guidance on direct participation in hostilities is encompassed in a three-part test consisting of a necessary threshold of harm, a direct causal relationship between the act in question and the expected harm, and the existence of a belligerent nexus of the act with the hostilities. The ICRC sets out the test thus:
In order to qualify as direct participation in hostilities, a specic act must meet the following cumulative criteria: 1. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conict or, alternatively, to inict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and 2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and 3. the act must be specically designed to directly cause the required threshold of harm in support of a party to the conict and to the detriment of another (belligerent nexus).176

176

ICRC, Interpretive Guidance on the Notion of DPH, Recommendation V, pp. 1617.

impact of civilian status on rights and duties of pmscs 439

2.2.1 Threshold of harm The ICRC categorizes the rst part of the test as a threshold of harm test. A few elements must be emphasized in order to understand how this aspect of the test operates, especially with regard to the activities of PMSCs that may come within its purview. First, similar to other analyses under IHL with respect to the conduct of hostilities, the test is concerned with whether harm is likely to have the specied effect on the adversary. Thus, it is not limited to an assessment of what actually occurs, but considers what is likely to occur as a result of the acts in question.177 This makes it possible for forces to respond during or even prior to an attack, rather than only following one. It should also be emphasized that the choice of the word likely is specically designed to set an objective test, rather than to incorporate any assessment of subjective intent of the individual in question.178 Secondly, the test takes into account not only attacks against military objectives and personnel (which are more obviously linked to harming the adversary), but also encompasses attacks against civilians who are protected against direct attack. As for the rst kind of attack, according to the ICRC Commentary, when the attack is directed against something of a military nature, the threshold requirement will generally be satised regardless of quantitative gravity.179 The test itself is phrased broadly, incorporating acts affecting military operations or military capacity. The harm against military persons or objects does not necessarily have to constitute physical or material injury or damage.180 The ICRC
177

178

179

180

This is, for example, similar to the proportionality analysis under IHL, which measures the expected loss of life or injury to civilians against the anticipated military advantage, rather than toting up what actually happened after the fact. It is therefore an ex ante calculation, not an ex post. See e.g. Art. 57(2)(b) AP I. ICRC, Fifth Informal Expert Meeting: The Notion of Direct Participation in Hostilities under IHL: Expert Comments and Elements of Response concerning the Revised Draft of the Interpretive Guidance on the Notion of Direct Participation in Hostilities (2008), pp. 234. ICRC, Interpretive Guidance on the Notion of DPH, p. 47. The relationship of this part of the test with Art. 52(2) AP I is not crystal clear. It is not entirely clear from the commentary whether the ICRC meant the phrase military nature in its commentary to be identical in meaning to the use of the same term in Art. 52(2) AP I or whether it encompasses a broader remit of objects. For example, a dual use object such as a bridge that is being used by the military for military purposes would that constitute an object that is military in nature for the purposes of this test? For further discussion, see Sassli and Cameron, The Protection of Civilian Objects. ICRC, Interpretive Guidance on the Notion of DPH, pp. 478; see also ICRC, Third Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2005), p. 29.

440 legal rules applicable to pmscs and their personnel

Commentary provides examples of the general types of activities that would fall under the remit of this part of the test, a number of which may be pertinent to the typical activities of PMSCs. These include: denying the adversary the military use of certain objects, equipment and territory, guarding captured military personnel of the adversary to prevent them being forcibly liberated and clearing mines placed by the adversary.181 On its face, armed or unarmed guarding of sites and objects could easily amount to denying military use;182 unfortunately, neither the Commentary itself nor the preparatory documents to which it refers spells out in more detail what level of obstruction is necessary to deny use. Thus, while this term may be current in military and operational doctrine, in legal terms it is vague. This vagueness, coupled with the ambiguity as to whether such denial implies the use of armed force, could have a signicant impact on PMSCs. PMSCs conduct an enormous amount of site security. While the fact that only a small percentage of contractors on the whole are armed may assuage fears regarding their ability to harm civilians by inappropriate use of weapons, the mere fact that they are not armed does not in and of itself mean that they will not be perceived as directly participating in hostilities when carrying out such guard duties, if their acts satisfy the rest of the elements of the test. When PMSC personnel are engaged to provide protective services to persons or objects, the criterion which determines whether or not this activity is direct participation in hostilities is the status of the persons or objects being protected. If contractors are protecting civilians or civilian objects, even if these belong to a party to the conict, then they are not directly participating in hostilities. If, on the other hand, their obligation is to protect military personnel or military objectives, then the activity of guarding them amounts to direct participation in hostilities. The fact that they are acting merely in defence is irrelevant: Article 49(1) AP I states, Attacks means acts of violence against the adversary, whether in offence or in defence. One of the tricky aspects of this fact is that objects become military objectives according to their nature, location, purpose or use.183 There is no set list of military objectives.184 Thus, the objects that

181 182

183 184

ICRC, Interpretive Guidance on the Notion of DPH, p. 48. Footnotes omitted. Ibid., p. 48 states that activites restricting or disturbing deployments, logistics and communications meet this threshold regardless of whether it is done by armed or unarmed persons. Art. 52(2) AP I. Sassli and Cameron, The Protection of Civilian Objects, pp. 3941.

impact of civilian status on rights and duties of pmscs 441

contractor personnel are guarding may be ambiguous or change during the course of hostilities, leaving the contractor in the position of becoming a direct participant in hostilities if he continues to guard it. In addition, if the attackers are members of the forces of a party to the conict, engaging them normally constitutes direct participation in hostilities. Again, a tricky case arises when the attackers themselves are direct participants in hostilities rather than organized armed groups. If, on the other hand, the attackers are civilian criminal gangs, then responding to them through the use of force does not constitute direct participation in hostilities as there is no nexus with the ongoing hostilities.185 The relevant law in this situation is national criminal law, including the right to self-defence or defence of others in the face of an imminent threat to their safety, as well as human rights law, particularly the right to life. The role of designated civilian armed guards during an armed conict is therefore one of the most problematic for private contractors, and gives rise to the very real probability that they may become direct participants in the hostilities, whether intentionally or inadvertently. As for guarding and detaining captives, we discussed the use of PMSCs in the role of guarding POWs or captured military personnel of the adversary above,186 in particular in light of ring on a would-be escapee as an act of war. Here, we note that the Interpretive Guidance focuses on whether the actions or presence of the guards prevents the forcible liberation of the detained ghters, and distinguishes that from merely exercising authority over such detainees, the latter not constituting direct participation in hostilities.187 If private contractors capture, arrest or detain persons during an armed conict, these acts will constitute direct participation in hostilities if the captives are enemy combatants in an international armed conict. In a non-international armed conict there is less clarity about the rule but, by analogy, it is proposed that capturing members of armed groups constitutes direct participation in hostilities in such conicts. The most difcult case is if the persons captured were themselves direct participants in hostilities
185

186 187

Schmitt, Direct Participation in Hostilities (Expert Paper), pp. 1819; and J. F. Quguiner, Direct Participation in Hostilities under International Humanitarian Law (HPCR 2003), p. 12; Cameron, Private Military Companies, pp. 5912. In Ch. 1, section B 1 above. ICRC, Interpretive Guidance on the Notion of DPH, p. 48. The ICRC admits that this nuanced view distinguishing the exercise of administrative powers from other aspects of guarding was not discussed during the expert meetings. See ibid., p. 48, n. 99.

442 legal rules applicable to pmscs and their personnel

rather than persons with a clear status as combatants or armed group members under IHL. Mine clearance is an activity that may constitute direct participation in hostilities, but may also be classied as humanitarian work, depending on the context. It becomes direct participation in hostilities if mine clearance is undertaken to assist military operations, or to allow military forces access to certain areas in preparation for military operations. Contractors who carry out mine clearance in those circumstances are directly participating in hostilities. They thus lose their protection from attack by combatants of the adversary. Mine clearance does not constitute direct participation in hostilities unless it jeopardizes a partys military operations for the benet of one party and to the detriment of the other party.188 Many PMSCs are involved in mine clearance,189 as are many other humanitarian groups or organizations that are not PMSCs.190 Whether the body engaging in demining is a PMSC or a humanitarian group is irrelevant to determining whether the activity in question constitutes direct participation in hostilities; it is the purpose of the act that counts. The Commentary to the Interpretive Guidance also species that electronic interference with military computer networks could also meet the threshold of harm, thus further removing the need for PMSCs to be armed and on the battleeld in order for their acts to be construed as direct participation in hostilities.191 Communications services are clearly essential to the capacity of any military force to conduct hostilities. However, the provision of communications services per se does not constitute direct participation in hostilities. Such services can range from communications infrastructure hardware, to satellite transmission services, and most of these are now operated using computerized telecommunications. Technology used to spy on or damage the communications systems of the adversary is the aspect of communications services

188

189

190 191

Mine clearance is, of course, one of the humanitarian obligations of state parties under IHL, who have an obligation at the close of hostilities to remove or render harmless to civilians any landmines which they have placed, which also requires that they keep records of their location by which time, of course, there is no question of direct participation in hostilities in demining: Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Rules 823, pp. 2836. EG G4S Mine Action, www.g4s.uk.com/en-GB/What we do/Services/Ordnance management/; EOD Technology, Inc. (Munitions Response section), www.eodt.com/Capabilities/MunitionsMgmt/. E.g. the Geneva International Centre for Humanitarian Demining, http://gichd.ch/. ICRC, Interpretive Guidance on the Notion of DPH, p. 48.

impact of civilian status on rights and duties of pmscs 443

particularly relevant to direct participation in hostilities. Military terminology for such actions includes computer network attacks and information operations, which can be offensive or defensive. There is a logical argument that computer network attacks and offensive information operations constitute direct participation in hostilities, as they may directly affect the capacity of the adversary to conduct its military operations and can be more damaging than bombardment. However, this does make the denition of direct participation very broad indeed, and seems to lose sight a little of the rationale behind dening some activities as direct participation and others not. In our view, communications attacks are too far removed from both the direct use of force to attack an adversary and from the actual theatre of war to be plausibly classied as direct participation in hostilities unless, of course, they amount to a use of actual force capable of causing death or injury or damage to the military equipment of the adversary (such as causing planes to crash) or injury to civilians if the belligerent nexus (discussed below) exists.192 The second type of attack set out in the test as a potential means of directly participating in hostilities involves attacks which inict death, injury or destruction on persons or objects protected against direct attack. The inclusion of attacks on civilians within the denition of direct participation in hostilities may seem obvious, but it is far from it. It is important to bear in mind the fact that a person does not have to be directly participating in hostilities in order to commit a war crime. Thus, if such acts were not construed as direct participation in hostilities, that would have little bearing on whether the perpetrators could be prosecuted.193 Moreover, law enforcement ofcers (and military) would likely be fully justied in using force of course, only under the law enforcement paradigm to prevent or stop such attacks, thereby attenuating a need for such acts to be classied as direct participation in hostilities as a preventive or law enforcement aid. Since attacks and violence against civilians will not necessarily have a connection to the conict or affect the adversarys ability to ght, unlike attacks on military persons and objects,
192

193

Michael Schmitt, Wired Warfare: Computer Network Attack and jus in bello (2002) 84 Intl Rev Red Cross 36599. Note, however, that ICTY judgments qualied sniping on civilians and bombardment of civilian residential areas as attacks within the meaning of Art. 49(1) AP I. See Prosecutor v. Gali (Trial Chamber Judgment) IT-9829-T (5 December 2003) and Prosecutor v. Strugar (Appeal Judgment) IT-0142 (17 July 2008), cited also in ICRC, Interpretive Guidance on the Notion of DPH, p. 49, nn. 109 and 110.

444 legal rules applicable to pmscs and their personnel

the ICRCs Interpretive Guidance asserts that such acts do need to be likely to cause physical effects on protected persons or objects and furthermore emphasizes the need for such acts to have a belligerent nexus.194 This aspect of the test immediately brings to mind two well-known incidents involving PMSCs in Iraq the abuse of prisoners in Abu Ghraib prison and the shooting to death of civilians in Nisoor Square in Baghdad, September 2007. On the basis of this aspect of the test, do either of these incidents amount to direct participation in hostilities by the PMSC contractors involved? Initially, the ICRCs wording referred to inicting death or other harm on persons not under effective control of the acting individual.195 This phrasing was expressly designed to exclude activities such as guarding civilian internees from the scope of activities falling within the conduct of hostilities.196 The mere fact that mistreatment or killing of such internees is prohibited by IHL does not entail that such conduct amounts to direct participation in hostilities that would lead to a loss of protection from direct attack for the guards themselves.197 During the expert meetings, this position was challenged, and some experts argued that where prisoners were killed as part of military operations designed to support one party by harming another, the act of inicting harm on those individuals, while not done in the heat of battle or direct attack, had a sufcient belligerent nexus to support its inclusion within the scope of direct participation in hostilities.198 While the wording of the nal version of the test and the accompanying Commentary are sufciently ambiguous to allow for either interpretation, it is clear from the expert meeting reports that the ICRC did not relent in its view that such acts do not constitute direct participation in hostilities.199 Thus, the ICRC would contend (and we agree) that the Abu Ghraib PMSC guards involved in prisoner abuse were not directly participating in hostilities, but this view does not appear to be unanimous. With regard to the Nisoor Square incident, in which a group of PMSC contractors guarding a convoy through Baghdad opened re on
194

195

196

ICRC, Interpretive Guidance on the Notion of DPH, pp. 4950. See also discussions on this in ICRC, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2006), pp. 423; ICRC, Fifth Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2008), pp. 623. ICRC, Fifth Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2008), p. 61. 197 198 199 Ibid. Ibid. Ibid., p. 62. Ibid., p. 63.

impact of civilian status on rights and duties of pmscs 445

pedestrians and civilian cars and killed seventeen civilians,200 the element of direct attack on civilians is much more self-evident. It is important to recall that the intent to inict harm on civilians is irrelevant to the direct participation assessment, in contrast to an assessment of criminal responsibility under international criminal law. Thus, no matter whether the Blackwater guards red on the civilians thinking they were responding to an attack or for other reasons, the fact that the civilians red upon were themselves civilians and not members of an armed group or armed forces is not dispositive of whether the act constituted direct participation in hostilities. This element of the test is closely linked with the belligerent nexus criteria which must also be fullled in order for this conduct to amount to direct participation which we will examine more closely below. 2.2.2 Direct causation The second element of the test is the requirement of direct causation. In the words of the ICRC:
there must be a direct causal link between a specic act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part.201

This part of the test reects a widely accepted and long-standing tenet of IHL, which is that there should be a clear distinction between direct participation in hostilities and participation in the war effort.202 Participation in the war effort is perhaps best exemplied by munitions factory workers: while these individuals certainly help the war, their activities are not legally considered to constitute direct participation in hostilities. War-sustaining activities such as political, economic or ideological (propaganda) support of the war have an even weaker link in terms of direct impact and thus also are not classied as direct participation in hostilities.203

200

201 202

203

The Memorandum Opinion of 31 December 2009 states that fourteen people were killed, but other reports indicate seventeen. ICRC, Interpretive Guidance on the Notion of DPH, Recommendation V(2). Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols: Commentary to Art. 51(3) Protocol I, at para. 1944. Here again we may distinguish between individual criminal responsibility and direct participation in hostilities: enabling may include nancial support and thus constitute a form of participation in a war crime, but it does not constitute direct participation in hostilities.

446 legal rules applicable to pmscs and their personnel

Many activities carried out by PMSCs, such as support and logistics activities that is, catering, construction and maintenance of bases are not direct participation in hostilities. As noted above, Article 4A(4) GC III foresees that civilians will perform tasks such as supplying the armed forces with food and shelter but that those persons maintain their civilian status. Such indirect participation, even where the services are indispensable to the armed forces (e.g. providing food), does not cross the threshold to direct participation and thus carries no loss of protection against direct attack.204 PMSC employees may thus not be construed as directly participating in hostilities merely for performing such services. Here, however, it is important to reiterate that IHL depends on the facts. Therefore, if PMSCs are hired as kitchen staff but at times are left to guard a military base, the assessment as to whether they directly participate in hostilities depends on what they are doing at any given moment, not on their usual role or the terms of their contract.205 The Interpretive Guidance provides an even more detailed framework for analysis when it comes to certain activities that are common for PMSCs. First, it states, although the recruitment and training of personnel is crucial to the military capacity of a party to the conict, the general causal link with the harm inicted on the adversary will generally remain indirect, such that recruitment and training is not direct participation in hostilities.206 This interpretation is consistent with views on such acts in the context of discussions on mercenaries.207 The Interpretive Guidance goes on to specify that only where persons are specically recruited and trained for the execution of a predetermined hostile act can such activities be regarded as an integral part of that act and, therefore, as direct participation in hostilities.208 In this regard, the example often cited is the role played by the company MPRI with the Bosnian and Croatian forces during the conicts associated with the dissolution of the former Yugoslavia. Although the companys contract was only for training the
204 205

206 207

208

ICRC, Interpretive Guidance on the Notion of DPH, p. 54. See Singer, Corporate Warriors, p. 163 for evidence of the militarys reliance on support troops for combat assistance in certain situations. ICRC, Interpretive Guidance on the Notion of DPH, p. 53. Recall that the denition of mercenary under IHL requires that the individual actually take a direct part in hostilities. See Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, p. 579, para. 1806, on Art. 47(2). Note, however, as discussed in Ch. 5 below, that such activities may nevertheless lead to criminal responsibility of PMSCs under international criminal law. ICRC, Interpretive Guidance on the Notion of DPH, p. 53.

impact of civilian status on rights and duties of pmscs 447

forces, and it has stated it did nothing more than that, many observers formed the view that the remarkable improvement in strategic and operational planning, as well as implementation of military campaigns by these forces, suggested direct input at the operational level from highly skilled military experts. 209 Furthermore, one may question whether this is in fact as much of a bright-line test as it rst appears. While many PMSCs have contracts to train military personnel (e.g. the new Iraqi and Afghan military and police forces), it is imperative to look in more detail at the nature of that training before concluding that training is not direct participation in hostilities. In places where there is an ongoing armed conict, at least some PMSCs train by leading new forces in military or combat operations.210 When training involves leaving the classroom and charging into battle, as it were, that particular aspect of what some PMSCs may consider to be merely an integral part of training most certainly constitutes direct participation in hostilities. While the production of weapons and ammunition unquestionably does not constitute direct participation in hostilities including, for example, manufacturing improvised explosive devices (IEDs) direct action by civilians operating weapons and/or weapons systems may be.211 As weapons systems become more sophisticated, it is not uncommon for a manufacturer to supply a civilian contractor with the weapon. The evolution of high-tech weaponry means that frequently the military forces do not have the technical expertise to maintain, calibrate and operate sophisticated weapons systems. As a result, many private companies enter service agreements when they provide such weaponry to the military forces, which include the provision of technicians for the lifecycle of the weapon, and also frequently include a contractual obligation that the technicians will accompany the weapons into hostilities. Many of these are, of course, primarily operated through computer technology

209

210

211

Boldt, Outsourcing War, p. 510, n. 61, citing UK Foreign and Commonwealth Ofce, Green Paper, Private Military Companies: Options for Regulation, 2002, p. 13; Peter Singer, Corporate Warriors, pp. 1256. A representative of a major PMSC present at Nyon Conference 46 June 2009 very candidly informed all that this is a common modus operandi for his company. See ICRC, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2006), p. 49 for a brief overview of certain nuances within this debate. For a view that production of IEDs does constitute direct participation in hostilities, see Michael Schmitt, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance (2010) 50 Virginia J Intl L 795, 834. See also Sassli and Cameron, The Protection of Civilian Objects.

448 legal rules applicable to pmscs and their personnel

which can be very remote from the intended target. The responsibilities of that contractor may involve performing maintenance but may also be linked to programming the weapon.212 One of the problems with this type of activity is that it is often listed as contractor support, making it difcult to know what such a role entails. For example, one expert states other contract technicians supported Predator unmanned aerial vehicles (UAV) and the data links they used to transmit information.213 Another is less ambiguous, indicating that such support crosses the threshold of harm, stating: Contractors even operate some military systems. Contractors ew on targeting and surveillance aircraft and operated Global Hawk and Predator UAVs in Afghanistan and Iraq.214 There is little doubt that such personnel are in fact directly participating in hostilities if their work includes programming and operating the weapon systems to mount specic attacks, rather than simply allowing them to function. If, however, they are merely there to maintain the systems in good order, then arguably they are not directly participating in hostilities. Some of these acts will not in and of themselves in isolation cause direct harm to the adversary, such as ongoing maintenance of such weapons systems. However, it should be noted that the Interpretive Guidance states, where a specic act does not on its own directly cause the required threshold of harm, the requirement of direct causation would still be fullled where the act constitutes an integral part of a concrete and coordinated tactical operation that directly causes such harm.215 PMSCs also drive and guard a lot of convoys. One of the more contentious questions of IHL relates to the proverbial ammunition truck driver: is he directly participating in hostilities or not? The answer seems to be that if the driver is transporting ammunition directly to the front lines or to ghters requiring it for immediate use in battle, that truck driver is directly participating in hostilities. If, on the other hand, the ammunition is being transported to a weapons depot, then the same driver is not, in that instance, directly participating in hostilities.216 Nevertheless, the ammunition itself, being a legitimate military objective,
212

213

214 215

J. Ricou Heaton, Civilians at War: Re-examining the Status of Civilians Accompanying the Armed Forces (2005) 57 Air Force L Rev 155208, 18991. David Isenberg, A Government in Search of Cover: Private Military Companies in Iraq in S. Chesterman and C. Lehnardt (eds.), From Mercenaries to Market (Oxford University Press, 2007), p. 83. Ricou Heaton, Civilians at War, p. 190. 216 ICRC, Interpretive Guidance on the Notion of DPH, pp. 545. Ibid., p. 56.

impact of civilian status on rights and duties of pmscs 449

may be directly targeted; thus, even though the driver himself may not be directly targeted in the second example, his proximity to a legitimate military objective makes him vulnerable to the effects of attack. This distinction, although ne, is nevertheless important in the context of PMSCs. While forces able to attack ammunition trucks (not headed to the front lines) through aerial bombardment may in all likelihood consider the likely death of the driver as a proportionate loss relative to the destruction of the supply in question, forces whose activities are, due to the nature of their capacity and organization, limited to ground attacks with light weapons may not lawfully directly target convoy drivers as a means of neutralizing or capturing the ammunition in question since those drivers are not, at the time in question, directly participating in hostilities.217 Without question, if PMSC contractors are engaged in the assassination of persons who are somehow deemed to be enemy combatants in the context of an armed conict, as emerging reports suggest, then those attacks, although carried out via collaboration with intelligence agencies, constitute direct participation in hostilities.218 Great caution must be exercised in assessing such acts, however, since not all such assassinations are in fact against combatants/ghters in the context of an armed conict, notwithstanding declarations by governments involved. An issue that arises with respect to the element of direct causation of harm is the vexed question of human shields in situations of armed conict. The position of the ICRC in the Interpretive Guidance is that [w]here civilians voluntarily and deliberately position themselves to create a physical obstacle to the military operations of a party to the conict, they could directly cause the threshold of harm required for DPH.219 On the other hand, persons whose presence near a legitimate military objective would affect the balance or tip the scales in the calculation as to the proportionality of an attack (usually aerial or using heavy weapons) even if they are present voluntarily does not constitute direct participation in hostilities.220 The reason for this conclusion is that such civilians pose only a legal impediment to attack, which is too
217

218 219

As such, the hue and cry over asymmetrical warfare and the inappropriate use of civilians by certain armed groups may be exaggerated, as the practice may not be as one-sided as some commentators make out. On the other hand, such drivers may have to accept that they face the risk of being mistaken for members of the armed forces, which muddies the culpability for direct attacks somewhat. Ciralsky, Tycoon, Soldier, Spy. 220 ICRC, Interpretive Guidance on the Notion of DPH, p. 56. Ibid., p. 57.

450 legal rules applicable to pmscs and their personnel

indirect to meet the necessary standard.221 Moreover, concluding that such civilians directly participate in hostilities and lose protection from attack by virtue of their presence and will to inuence proportionality leads to an absurdity it is only because they are civilians protected against attack that they inuence the proportionality calculation at all; if they are construed as direct participants by virtue of their mere presence, they pose no legal impediment to attack because direct participants may be attacked and their loss does not need to be taken into account during the proportionality calculation.222 Although this is the position we take, we acknowledge that it is not universally accepted.223 As far as we know, states do not seek to use PMSCs in order to make targets immune from attack due to the presence of PMSC civilians. However, if PMSCs actively intervene in hostilities, such as providing cover for combatants or physically blocking an attack, they are directly participating in hostilities, just as any other civilian would be in such circumstances.224 When faced with persons who might be human shields, on the other hand, PMSCs who are participating in hostilities, either as combatants or without such status, must respect IHL. Given that there is some debate, it would be wise to follow the standard which is least likely to lead them to be held to be in conict with IHL, which, in our view, is the position we outline above. Since PMSCs may be operating remotely controlled weapons red from drones where the issue of human shields in aerial bombardment may be relevant, PMSCs should be made aware, in their training, of the fact that civilians present near a military objective, whether they are there voluntarily or not, should not be taken to be direct participants in hostilities. 2.2.3 Belligerent nexus Not only must an act cross the requisite threshold of harm and directly cause the harm in question, but that act must be specically designed to directly cause that harm in support of one party and to the detriment of another. This is the element of a belligerent nexus. It is important to underline, however, that this analysis has nothing to do with the subjective intent of the individual, but
221

222 223

224

Ibid. ICRC, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2006), pp. 456. Sassli, Human Shields, p. 573. See e.g. Michael Schmitt, Human Shields in International Humanitarian Law (2009) 47 Columbia J Transnl L 292, 31719. These are the examples given in the Interpretive Guidance. See ICRC, Interpretive Guidance on the Notion of DPH, pp. 567.

impact of civilian status on rights and duties of pmscs 451

focuses rather on the objective purpose of the act.225 The Interpretive Guidance explains, [t]hat purpose is expressed in the design of the act or operation and does not depend on the mindset of every participating individual.226 The mental state of an individual is only relevant in exceptional circumstances;227 as such, at issue is not whether individual PMSC contractors want or seek to support or harm one side or the other in a conict, but whether their actions may be reasonably perceived by a person reacting to that act as being aimed at harming or supporting one side or the other.228 If we apply this to the Nisoor Square incident discussed above, we arrive at the (somewhat unsatisfactory) conclusion that whether the PMSCs who shot at the civilians were directly participating in hostilities by dint of those acts depends to a large extent on whether they were hired by a party to the conict. If they were hired by a party (which was the case), the belligerent nexus is more apparent than if they were hired by, for example, a completely neutral NGO. If contracted by a party to the conict, the connection between their actions and benet to the party is easier to draw. The line between the acts in the incident and acts taken in self-defence, however, is not always easy to distinguish. The ICRC Interpretive Guidance asserts that the exercise of individual self-defence against prohibited violence (e.g. rape, murder) lacks the requisite belligerent nexus even if it causes harm to the adversary because its purpose clearly is not to support a party to the conict against another.229 Thus, under normal circumstances, the use of violence to repel prohibited attacks does not constitute direct participation in hostilities. This exception to what acts of violence directed against an adversary constitute direct participation in hostilities is logical and appropriate when it comes to regular individuals who may be the victims of unlawful attacks, but it presents a challenge and potential loophole with regard to the ways states may use PMSCs. With all due respect, the ICRCs dismissal of the possibility that the iniction of violence through individual self-defence may constitute direct participation in hostilities may be
225 226 227

228

229

ICRC, Interpretive Guidance on the Notion of DPH, p. 59. Ibid., p. 59. The ICRCs Interpretive Guidance on the Notion of DPH provides the example of involuntary human shields physically coerced into providing cover in close combat), at p. 60. ICRC, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2006), p. 50, clarication of the concept by the organizers/drafters. ICRC, Interpretive Guidance on the Notion of DPH, p. 61.

452 legal rules applicable to pmscs and their personnel

too hasty when it comes to the way in which the right to self-defence is exploited by PMSCs. Indeed, this relationship is not explored at all in the Interpretive Guidance. It is, however, imperative to enquire whether the fact that individuals are contracted on the basis that they will exploit the right to self-defence (including the right to use violence in defence of property) demands a more nuanced analysis of the relationship between self-defence and direct participation in hostilities, which we will develop below.230 Finally, for the sake of completeness, we note that other types of acts, such as hostage-taking, were considered in considerable detail by the experts at the expert meetings with a view to establishing a position as to whether such acts constitute direct participation in hostilities. Since PMSCs tend rather to be the victims of hostage-taking rather than taking hostages themselves, it is unnecessary to go into this debate.

2.3 Beginning and end of direct participation in hostilities The ICRC Interpretative Guidance states:
Measures preparatory to the execution of a specic act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of that act.231

The Commentary to this recommendation provides some specic examples of the types of preparatory measures that do fall within the rubric of direct participation in hostilities and distinguishes those from more remote measures that do not amount to such participation. For example, loading bombs onto a plane for an attack on military objectives counts as direct participation even if the actual ight and bombing raid will only occur the following day and the specic targets are not yet selected.232 Transferring weapons to storehouses, however, does not (similar to the driver of the ammunition supply truck according to where
230

231 232

The fact that the service contracts awarded to PMSCs contain clauses requiring or at least anticipating that they will exercise their right to self-defence in defence of military goods their convoys protect was communicated to the authors by a lawyer who handles PMSC contracts for Afghanistan at a conference in Shefeld, UK, 28 May 2009. Moreover, the Defense Federal Acquisition Supplement implicitly conrms this in its extensive discussion of the limits that could or should be placed on the use of force in self-defence. We note that there is a general appeal in the Interpretive Guidance on the Notion of DPH to read and use the document in good faith. In this light, our analysis below may be read as pointing toward a good-faith interpretation of self-defence. ICRC, Interpretive Guidance on the Notion of DPH, Recommendation VI, p. 17. Ibid., p. 66.

impact of civilian status on rights and duties of pmscs 453

the truck is headed). The degree of specicity of the future attack plays a key role in interpreting whether the acts in question amount to direct participation.233 Thus, PMSCs whose support role includes carrying out activities that involve taking steps to prepare a specic and concrete operation may amount to direct participation in hostilities. The Commentary further provides that:
if carried out with a view to the execution of a specic hostile act, all of the following would almost certainly constitute preparatory measures amounting to direct participation in hostilities: equipment, instruction and transport of personnel; gathering of intelligence; and preparation, transport, and positioning of weapons and equipment.234

The Interpretive Guidance distinguishes between general recruitment and training of troops and instruction regarding a specic operation, the former not being a form of direct participation.235 As discussed above, evidence suggests that PMSCs involved in training at times cross the line from general to specic training, which has important repercussions for whether their conduct entails a loss of protection against attack. Along similar lines to training, the provision of advice to military forces or other participants in armed conict is not in itself participation in hostilities.236 The status of private military contractors providing such advice, if they are not already designated members of the forces, will depend on the nature, timing, and operational relevance of the advice. It is common to differentiate between strategic-level advice, which is not regarded as direct participation, and operational level and tactical-level advice, the last two of which are generally regarded as direct participation in hostilities.237 The rationale for the inclusion of the latter is that it can have a direct impact on the success or failure of a particular military operation, thus affecting the capacity of the military forces to achieve their objectives. Certain intelligence activities of PMSCs may also entail their being direct participants in hostilities. The concept of intelligence-gathering

233

234 236

237

This notion was reiterated in the 2006 discussion, ICRC, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2006), pp. 547. 235 ICRC, Interpretive Guidance on the Notion of DPH, p. 66. Ibid., pp. 667. Boldt, Outsourcing War, p. 521; Schmitt, Direct Participation in Hostilities (Expert Paper), p. 24. These categories of advice are used by the US Department of Defense, as cited by Boldt, Outsourcing War, p. 510, n. 60. Boldt, Outsourcing War, p. 522 and Schmitt, Direct Participation in Hostilities (Expert Paper), p. 22, support this classication.

454 legal rules applicable to pmscs and their personnel

covers a range of different activities relevant to armed conicts, but does not normally include the operation of weapons or direct use of force. The gathering of intelligence on the ground in the direct vicinity of hostilities, or in preparation for a particular military operation, will almost always constitute direct participation in hostilities, if it is closely integrated with military operations.238 However, when intelligence-gathering or intelligence data-processing is done remotely, the status of persons carrying out these activities under IHL may depend on the nature of the intelligence and the purpose for which it is intended or used. To the extent that there is a discernible rule, the analysis of intelligence information remote from hostilities, gathered for example from satellites and surveillance aircraft, even if for military objectives, is traditionally a civilian occupation and state practice would indicate it should not be considered direct participation in hostilities.239 However, even if carried out remotely using advanced technology in the form of unmanned aerial vehicles, intelligence-gathering of information that is immediately relevant to and used in military operations can still be considered direct participation rather than an indirect contribution to the war effort. If it is intelligence related to eeting targets in the course of a military operation, it is direct participation in hostilities.240 Interrogation as a means of gathering intelligence is a traditional military role but is not normally regarded as direct participation because of its indirect relationship to the conduct of hostilities.241 Other more purely intelligence activities, such as the gathering and analysis of information regarding persons who seek to target US military personnel, resources and facilities in a theatre of armed conict242 may also constitute direct participation in hostilities based on the preparatory measures theory.

238

239 240

241

242

Boldt, Outsourcing War, p. 522 citing Schmitt, Direct Participation in Hostilities (Expert Paper), p. 22, suggests strategic and operational intelligence are too removed, but that tactical intelligence is direct participation in hostilities. Guillory, Civilianizing the Force, pp. 1356. Boldt, Outsourcing War, pp. 507 and 522; Schmitt, Direct Participation in Hostilities (Expert Paper), p. 22. Boldt, Outsourcing War, p. 522; Schmitt, Direct Participation in Hostilities (Expert Paper), p. 22. S. Fainaru and A. Klein, In Iraq, a Private Realm of Intelligence-Gathering; Firm Extends U.S. Governments Reach, Washington Post, 1 July 2007, p. A1. That article shows that the company in question provides not only general intelligence assessments, but also relates specic incidents of intelligence-gathering leading the US military to act directly on tips.

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Furthermore, the Commentary species that for modes of participation in an attack where geographical proximity is not a factor (i.e. remotely programming or controlling drones, etc.), the time of participation in the attack is limited to the immediate execution of the act and preparatory measures forming an integral part of that act.243 In addition, as discussed above, the temporal scope of loss of protection changes according to whether a person is a member of an armed group or whether one is simply an individual who directly participates without being part of a group. This analysis has shown that many of the activities in which PMSC personnel are contracted to engage may lead to or outright entail their direct participation in hostilities. That being said, this observation must be nuanced, in certain circumstances, by two additional applicable legal frameworks: the right to use force in self-defence, and the use of force in law enforcement operations. Consequently, to complete and, perhaps, to complicate the legal picture, we turn now to a detailed discussion of those subjects.

The use of force by PMSC personnel in self-defence

Domestic and international private security industries rely on the ability of an individual to use force in self-defence as a means of fullling the terms of contracts requiring the use of violence without having the benet of state-conferred powers of arrest and detention and the capacity to use force. In order to generate a more complete picture of what PMSCs may legally do in situations of armed conict, we therefore need to understand the rules on the use of force in personal self-defence and in defence of property and, moreover, to consider how those rules interact with and must be interpreted in relation to IHL. Our analysis will show that transposing the normal modus operandi of PMSCs (of exploiting the use of force in self-defence) from a domestic, internal security context to a situation of armed conict may create some thorny problems.244 In
243 244

ICRC, Interpretive Guidance on the Notion of DPH, p. 68. For descriptions of PMSCs reliance on self-defence in a domestic context, see e.g. D. Sklansky, The Private Police (1999) 46 UCLA L Rev 1165287; E. Joh, Conceptualizing the Private Police (2005) Utah L Rev 573; E. Joh, The Paradox of Private Policing (2004) 95 J Crim L & Criminology 49131; E. Joh, The Forgotten Threat: Private Policing and the State (2006) 13 Indiana J Global Legal Studies 35789. The only other scholarly consideration of self-defence and PMSCs, similar in some respects and different in others to the analysis here, is by G. den Dekker and E. P. J. Myjer, The Right to

456 legal rules applicable to pmscs and their personnel

particular, it may not be as straightforward as one may surmise to distinguish force used in self-defence from a use of force that constitutes an (impermissible) direct participation in hostilities. Both may actually overlap. In addition, even without actions amounting to direct participation in hostilities, certain acts taken in ostensible self-defence in a situation of armed conict can nevertheless seriously erode the strict separation between civilians and combatants, which can lead to a weakening in the ability of IHL to protect civilians generally. That being said, there are many acts which PMSCs may undertake which will not test the boundaries of direct participation in hostilities and for which selfdefence will serve as an adequate basis for action. Thus, the rules on selfdefence, which ow primarily from domestic criminal law systems, will play a signicant role in setting the parameters of the circumstances in which civilian PMSC personnel may use force and the degree of force that may be used such that it is important to be aware of the basic contours of the justication of self-defence in domestic criminal law.245 The following discussion begins with a brief consideration of the legal characterization of self-defence is it a right or merely a justication? Starting at the international level, we will briey consider whether there is an international legal standard that sets or inuences the specic necessary elements of self-defence when it comes to private persons such that we may describe a detailed universal norm. We will conclude that there is not. The bulk of our discussion will then assess the main elements of the criminal defence as it has emerged from domestic law and that are generally shared across legal systems around the world, on the understanding that in any given case the exact parameters will have to be nuanced by a detailed understanding of the criminal law provisions of the territorial state related to self-defence. Indeed, the applicable domestic law to an act of self-defence by civilians will independently of issues of jurisdiction and immunities generally be that of the state
Life and Self-defence of Private Military and Security Contractors in Armed Conict in F. Francioni and N. Ronzitti (eds.), War by Contract (Oxford University Press, 2011), pp. 17193. Self-defence is frequently construed as a justication for otherwise criminal behaviour in both common law and civil law systems. For common law debates on self-defence as justication or excuse, see esp. George Fletcher; for the observation that it is always construed as a justication in civil law systems, see Julian Hermida, Convergence of Civil Law and Common Law in the Criminal Theory Realm (2005) 13 U Miami Intl & Comp L Rev 163, 189. Kai Ambos, Toward a Universal System of Crime: Comments on George Fletchers Grammar of Criminal Law (2007) 28 Cardozo L Rev 2647, 2669.

245

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where the act occurs, and not that of the contracting state or the home state. The only exceptions are possibly legislation introduced for security reasons by an occupying power or, in case of criminal trial in the contracting state, the home state, or any other state based on universal jurisdiction, the lex mitior of the lex fori. The discussion will also consider the use of force in self-defence in defence of property, on which there may be less common ground between domestic jurisdictions. Finally, we will use a series of hypothetical scenarios to examine how these rules might be applied in situations facing civilian contractors working in armed conict zones. Such situations include working as personal security details for government employees or private persons, guarding civilian facilities, guarding civilian convoys and responding to unforeseen situations where PMSC personnel nd themselves personally threatened or subject to attack. Again, the problems discussed here pertain in particular to PMSC personnel tasked with or exercising security functions.

The right to life does not entail an unqualied right to self-defence

Personal self-defence has been referred to as an inherent right of every human being.246 Others construe self-defence as merely a justication for taking the right to life of another person in proscribed circumstances,247 personal self-defence being a long-standing part of domestic criminal law in almost all states.248 The European Court of Justice (ECJ)
246

247

248

D. B. Kopel, P. Gallant and J. D. Eisen, The Human Right of Self-defense, (2007) 22 Brigham Young U J Public L 43178 also take this view. It should be noted that the debate as to whether there is a free-standing human right to use force in personal self defence is inextricably linked, in many US discussions, to the right to bear arms enshrined in the US Constitution and therefore subject to the vagaries of heated debates on gun control in that country. On whether states have an obligation to extend a legal right to self-defence to individuals, see C. O. Finkelstein, On the Obligation of the State to Extend a Right of Self-defense to its Citizens (1999) 147 U Penn L Rev 1361402. Final Report submitted by Barbara Frey, Special Rapporteur: Prevention of Human Rights Violations Committed with Small Arms and Light Weapons, 27 July 2006, UN Doc. A/HRC/Sub.1/58/27, p. 9, paras. 201; John Cerone, A Human Right of Selfdefense? (2006) 2 J L Economics and Policy 319. In English law, for example, which formed the basis for other common law jurisdictions, the criminal defence of self-defence can be traced back to 1203: Fiona Leverick, Killing in Self-defence (Oxford University Press, 2006), p. 1. See also Final Report Submitted by Barbara Frey, Special Rapporteur: Prevention of Human Rights Violations Committed with Small Arms and Light Weapons, 27 July 2006, UN Doc. A/HRC/ Sub.1/58/27, para. 20.

458 legal rules applicable to pmscs and their personnel

has held that self-defence is a general principle of law.249 Although it is common to refer to the right to self-defence, it is arguably not a human right as such but, rather, a set of guiding principles for when an individual may be justied in the otherwise criminal act of violating another persons right to life.250 From the perspective of international human rights law (IHRL), self-defence is thus a qualication placed on the absolute right to life, rather than a positive right that exists at all times and in all circumstances.251 Indeed, even though self-defence is recognized in the European Convention on Human Rights (ECHR), it is not there as a right but simply to remove from the scope of application of article 2(1) killings necessary to defend against unlawful violence. It does not provide a right that must be secured by the State.252 It is not so much a legal rule enforceable by states as a legal permission for individuals to
249

250

251

252

The ECJ referred to the concept as legitimate self-protection. See Joined Cases 154, 205, 206, 2268, 263 and 264/78, 39, 31, 83 and 85/79, Valsabbia and ors. v. Commission of the European Union [1980] ECR at 1021, para. 138. As such, although it frequently applies only to individuals taking action to protect their lives or bodily integrity, the ECJ acknowledged that corporate enterprises may also rely on it in certain circumstances: see G. Dannecker, Jusitication and Excuses in the European Community: Adjudication of the Court of Justice of the European Community and Tendencies of the National Legal Systems as a Basis for a Supranational Regulation (1993) 1 European J Crime, Crim L & Crim Justice 230, 2378. Isolating a principled theoretical explanation for why we may in fact kill in self-defence, even on the basis of the human rights theory, however, is not an easy task. See A. Grabczynska and K. Kessler Ferzan, Justifying Killing in Self-defence (2009) 99 J Crim L and Criminology 23553 and Leverick, Killing in Self-defence. The view that self-defence is not an express human right was argued by Special Rapporteur to the United Nations Human Rights Council, Barbara Frey, in a 2006 report concerning small rearms and the right to life, where she opined that, although the principle of self-defence has an important place in international human rights law, No international human right of self-defence is expressly set forth in the primary sources of international law: treaties, customary law, or general principles. Final Report Submitted by Barbara Frey, Special Rapporteur: Prevention of Human Rights Violations Committed with Small Arms and Light Weapons, 27 July 2006, UN Doc. A/HRC/Sub.1/ 58/27. Final Report Submitted by Barbara Frey, Special Rapporteur: Prevention of Human Rights Violations Committed with Small Arms and Light Weapons (27 July 2006), UN Doc. A/HRC/Sub.1/58/27, p. 9, para. 21, citing pre-publication work of John Cerone, subsequently published as A Human Right of Self-defense?. The Frey Report goes on to observe that some individual members of the HRC have argued that states are required to recognize and evaluate a plea of self-defence as part of the due process rights of criminal defendants. Para. 24. See HRC Comm. no. 806/1998, Thompson v. St Vincent and the Grenadines, CCPR/C/70/D/806/1998, 5 December 2000, dissenting opinion of Lord Colville, and HRC Comm. no. 1077/2002, Jaime Carpo v. Philippines, CCPR/C/77/ D/1077/2002, 15 May 2003, dissenting opinion of Nisuke Ando.

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break the other rules that prohibit killing and the iniction of bodily harm on other persons, in very specic circumstances. It does not, for example, confer a right to stand and shoot in response to a threat if there is another reasonable and safe way to proceed. Its purpose is to exonerate the perpetrator from criminal conviction for violating anothers right to life, in defence of his or her own life, but only as long as he or she has taken reasonable opportunities to avoid or to respond to the threat by means other than by taking the life of another.253 In addition, it is important to note that self-defence does not operate as a justication or excuse only with regard to killing, but also with regard to other acts that would normally be an offence in domestic criminal law.254 The use of force by individuals in self-defence or in defence of others is an area of law in which the rules of human rights law and criminal law inevitably refer to each other. The basis for domestic law prohibitions against wilful killing is that it is morally and legally wrong to take the life of another; a wrong that may nevertheless be justied or excused in certain circumstances, including that of personal self-defence. This domestic criminal jurisdiction is, in turn, the main means by which states implement their international human rights obligation (deriving from treaties and customary law) to protect the right to life. According to both the Human Rights Committee (HRC) and the European Court of Human Rights (ECtHR), an international obligation to protect the right to life requires the establishment of an effective system of criminal justice that provides protection against the actions of private individuals255 as
253

254

255

The European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted at Rome, 4 November 1950 by the Council of Europe probably comes closest to codifying self-defence as a human right when, in Art. 2(2) it provides that deprivation of life shall not be regarded as inicted in contravention of [the right to life] when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence. However, even this is in the character of an exoneration for conduct that would otherwise be in breach of anothers right to life. Some states legislation uses the general term offence; others circumscribe the availability of the defence only to acts that would constitute assault or homicide. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. UN HRC, General Comment no. 6: The Right to Life (Art. 6), 30 April 1982; Osman v. UK (App. no. 23452/94) ECHR 1998-VIII, at para. 115. The emphasis in the judgment on protection from the actions of non-states actors, and the fact that this required a balancing act between the rights of private individuals different from cases of state violations, was observed by Clapham, Human Rights Obligations of Non-state Actors, pp. 3625.

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well as positive public safety measures, as it entails, above all, a primary duty on the state to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life.256 The extent to which the right to life of the (unprovoked) attacking party must be taken into account is a source of controversy among theorists and inuences interpretations of the appropriate content, in the abstract, of the elements of self-defence in particular the question whether the victim of an attack has a right to stand fast and ght, or whether he must retreat if possible and use force only when truly necessary.257 In addition, the concept of self-defence is key to evaluating whether law enforcement ofcers or other state agents have violated the right to life during the course of their operations, as their actions in that context are also measured against the norms developed in relation to selfdefence. As such, from a human rights law perspective, the power of state agents to use force leading to a deprivation of life and the capacity of an individual to use force in self-defence seem to be converging to some extent, such that we will consider IHRL in more detail in discussing PMSCs in law enforcement roles. For private individuals, the specic content of the defence is not dened in IHRL. One can infer that necessity and proportionality are necessary elements due to the right to life of the perpetrator and the balancing act of human rights law, but the specic details are not elaborated in case law. Rather, when individuals have tried to bring cases before international human rights tribunals, usually as a right to fair trial complaint on how their plea of self-defence was put to a jury or considered by a national court, the international tribunals have consistently and categorically refused to look into the details of the plea.258 They have
256 257

258

Oneryildiz v. Turkey (App. no. 48939/99) (GC) ECHR 2004-XII, para. 89. See Andrew Ashworth, Self-defence and the Right to Life (1975) 34 Cambridge LJ 282, 28990; Grabczynska and Kessler Ferzan, Justifying Killing in Self Defense, p. 240; Leverick, Killing in Self-defence. At the domestic law level, there is a discussion as to whether one forfeits ones right to life as soon as one commits an unprovoked violent act. If accepted, this would seriously diminish the proportionality response as far as it stems from the right to life as a requirement. HRC, Gordon v. Jamaica, Comm. no. 237/1987, UN Doc. CCPR/C/46/D/237/1987 (1992), para. 6.4; Cabaa v. Poland (App. no. 23042/02) (Judgment) ECHR 8 August 2006, at paras. 3941; Samokhvalov v. Russia (App. no. 3891/03) (Judgment) ECHR 12 February 2009. In the latter case, the ECtHR held that the fact that the accused (complainant) was not able to be present at his trial, which raised questions of law and fact on the ground of his self-defence plea, violated s. 6(1) ECHR.

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insisted that they will not consider errors of fact or law of national courts unless such errors betray a separate fault, such as a lack of impartiality.259 In the absence of an international norm of self-defence comprising a detailed content for private individuals, it is thus necessary to consider the elements as spelled out in domestic criminal law.

2 Elements of self-defence from domestic criminal law, interpreted in the light of IHL
When it comes to private individuals, most acts relating to the use of force will fall within the domestic criminal jurisdiction, even during an armed conict. In contradistinction to a states regular armed forces deployed abroad, PMSC personnel are normally subject to local laws and would therefore be subject to the criminal law of the state in which they are working.260 Thus, constraints on the use of force ow from the normal criminal laws. It is not necessary to provide an exhaustive study in comparative criminal law of the elements of self-defence in order to gain a sense of how that law will govern the use of force by PMSC personnel in armed conicts. Rather, our aim is to provide a general outline of the most common elements of the defence. As a general rule, force may be used by individuals in self-defence or in defence of others if it meets three conditions: (i) it must be used against an unlawful attack, (ii) the use of force in response to the attack must be necessary and (iii) the force used in response must be proportionate to the original threat.261 While the details of different legal systems may add to these requirements or nuance them in some way, in general they may
259 260

261

Ibid. (all cases). In certain cases, such as in Iraq in 20038, PMSCs may have immunity from local laws (based on a specic law introduced by the occupying powers and subsequently accepted by the Iraqi government for a limited time) but they do not enjoy a general, total immunity. If for some reason they are not subject to the laws of the state in whose territory they are operating, they are subject to the laws of their national state or, possibly, of the contracting state. Nevertheless, the fact that it is domestic criminal law that is paramount remains the same in any of these scenarios. These elements are incorporated in the following provisions: see e.g. France, Code pnal, art. 122-5; Spain, Ley Orgnica 10/1995, de 23 de noviembre, del Cdigo Penal, articolo 20(4); Germany, Strafgesetzbuch, Titel 4, 32; Switzerland, RS 311.0 Code pnal suisse, art. 15; Canada, Criminal Code, ss. 34 and 37; Botswana, Penal Code, s. 16; Ghana, Criminal Code, s. 37; Southern Nigerian Criminal Code, s. 286. The Sudanese Penal Code allows for self-defence against acts which would be an offence and also for acts which would otherwise be a certain offence but are not due to the youth, unsoundness of mind, etc. of the perpetrator of the act. See Sudanese Penal Code, ss 56 and 57.

462 legal rules applicable to pmscs and their personnel

be said to be common to virtually all criminal laws in states around the world. However, all of these elements must be interpreted with particular care in the context of armed conict. As we noted in our discussion above, the use of force in self-defence does not constitute direct participation in hostilities.262 That statement may seem unproblematic at rst glance; however, this section will show that the line between self-defence and direct participation in hostilities is not as obvious as one may think, especially when it comes to security personnel. The following discussion will show how the self-defence elements must be interpreted in the context of an armed conict if they are to be consistent with IHL. In the domestic context, if the unlawfulness of the original attack and the necessity and proportionality of the response are not made out, a plea of self-defence will either be rejected and the person found guilty of the crime charged, the crime charged may be qualied or the sentence may be reduced.263 IHL adds a fourth dimension, modifying the way in which various elements of the defence must be interpreted, which is that in the context of armed conict, the act must lack a belligerent nexus. Self-defence is, rather, an act which is not covered by the cumulative conditions for an act to constitute direct participation in hostilities, because it does not full the condition of the existence of a belligerent nexus.264 Indeed, the purpose of the use of force in self-defence is clearly not to support one party against another.

2.1 Defence of self, defence of others and defence of property Virtually all states criminal laws permit an individual to use force in defence of him- or herself as well as in defence of others. In the context of an armed conict, using violence in the defence of oneself poses no problems (combatants simply do not need the criminal law of selfRelevant excerpts from the Botswanan, Ghanaian, Southern Nigerian and Sudanese Penal Codes can be found in Stanley Yeo, Anglo-African Perspectives on Self-defence (2009) 17 African J Intl & Comp L 11835. The element of unlawfulness of the primary attack/offence is an element of English criminal law. See R v. Williams (Gladstone) (1984) 78 Cr App R 276. See also Hermida, Convergence of Civil and Common Law, pp. 18990; Dannecker, Justication and Excuses. See also entries on self-defence from all states in F. Verbruggen (ed.), International Encyclopaedia of Laws: Criminal Law (various dates). ICRC, Interpretive Guidance on the Notion of DPH, p. 61. J. Pradel, Droit pnal compar, 3rd edn (Paris: Dalloz, 2008), 102, p. 140. Admittedly, however, one may ask what countrys criminal law system will punish a civilian who uses force to defend against an enemy invader whose acts threaten civilians. ICRC, Interpretive Guidance on the Notion of DPH, p. 61.

262 263

264

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defence to justify attacks against enemy combatants, as combatant privilege implies a right to use force beyond that); however, it is imperative that the defence of others not be read so as to allow an individual to act in self-defence in defence of combatants (or ghters). Defending combatants is unquestionably an act that aids one party to the detriment of another. Allowing combatants to fall within the others who may be defended would unacceptably undermine (or negate) the requirement that the force used in defence lack a belligerent nexus. This will become clear through the examples provided in subsequent sections. The extent to which force may be used to defend against offences against property varies signicantly in domestic criminal laws throughout the world. The self-defence provisions of some criminal codes suggest that force may never be used in defence of property.265 Many self-defence laws do not allow for the use of deadly force in defence of any and all property,266 but do allow for a certain degree of force to be used.267 Some jurisdictions permit the use of deadly force in defence of ones home, which is the most widely accepted exception to a prohibition to use force especially lethal force in defence of property, but by no means do all states criminal laws permit it.268 PMSCs in a foreign state guarding locations other than their homes may therefore not be able to rely on this defence.269 This would seem to severely limit a PMSC guards ability to defend an object if the PMSC himself (or other proximate civilians) is not
265

266

267 268 269

E.g. the Canadian Criminal Code states that a person may not strike or cause bodily harm in defence against a trespasser against property. C-46, Canadian Criminal Code, s. 38. See Joshua Getzler, Use of Force in Protecting Property (2006) 7 Theoretical Inquiries in Law 13166 for a comparative law discussion regarding Germany, Italy, the UK, Australia and the United States. See also e.g. France, Code Pnal, art. 1225 al 2, which specically states that lethal force may not be used in defence of property. The ICC Statute does allow for the use of force in defence of property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission (31(1)(c)). The inclusion of self-defence in defence of property was very controversial during the negotiation of the Rome Statute. See Kai Ambos, Other Grounds for Excluding Criminal Responsibility in A. Cassese, P. Gaeta and J. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), pp. 10323. However, that defence will only apply if a PMSC nds himself before the ICC on charges of war crimes. Otherwise, domestic legislation will apply. Pradel, Droit pnal compar, 102, pp. 13840. Getzler, Use of Force in Protecting Property, esp. pp. 14255. A specic exception to this rule is Chile, whose criminal laws create a presumption of self-defence when a person resists a night-time intrusion into a commercial or industrial establishment, no matter the damage caused to the assailants. See S. I. Politoff, F. A. J.

464 legal rules applicable to pmscs and their personnel

attacked during the seizure of the property. However, strict limitations on the degree of force that may be used to defend property may be somewhat illusory, in that if the thieves (or whomever) use force to resist attempts by a defender to stop their actions, that force may give rise to a right to use force in self-defence because the attack rises to a level endangering the person. In addition, especially in armed conicts, it is often not unreasonable to fear that an attacker will not only attack property but also persons present in that property or linked to that property. Thus, the proportionality of the use of force and the consequence of the use of excessive force in a courts reception of a self-defence plea with regard to property becomes the central issue. In terms of the impact of IHL on the interpretation of property that may be defended (if national laws allow it), the conclusion is similar to that for others: it is imperative that the property being defended is not a military objective. Thus, PMSC personnel may use force in self-defence against an attack on a civilian object if the PMSC personnel themselves are directly targeted (because guarding civilian objects is itself not direct participation in hostilities) or if the attack threatens the life or limb of other civilians in or near that civilian object. Again, this will become clear through the examples and analysis below.

2.2 The attack being defended against must have been unlawful According to domestic criminal law, force may only be used in selfdefence against unlawful attacks.270 Thus, the line between direct participation and self-defence must be drawn based on the use of violence in response to an imminent or ongoing use of unlawful violence. Although this is a common, if not universal aspect of self-defence law, it is rarely discussed in doctrine because it is relatively unproblematic in a domestic context in times of peace.271 In the domestic context, the unlawfulness
Koopmans and M. C. Ramirez, Chile in F. Verbruggen (ed.), International Encyclopaedia of Laws: Criminal Law (2003), para. 139. The provisions establishing the defence of self-defence all refer to the unlawfulness of the primary attack as an element. Where it tends to arise in some jurisdictions is in the context of a consensual ght where the accused is charged with assault. (D. Paciocco, Applying the Law of Self-defence (2007) 12 Canadian Crim L Rev 25, 54.) In English jurisprudence, it surfaces as an issue in discussions as to whether the belief in the existence of the unlawful attack must be reasonable or merely honest. See e.g. R v. Williams (Gladstone) (1984) 78 Cr App R 276. In yet other jurisdictions, it arises when the perpetrators of the unlawful attack are, for

270

271

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requirement ensures that force cannot be used justiably against those who have a legal right to interfere with the physical integrity of the accused, such as during a lawful arrest.272 In the context of an armed conict, however, it is necessary and appropriate to measure the (un)lawfulness of the initial attack in light of IHL.273 In a situation of armed conict, due to the complexity of IHL and the factual situations often prevailing on the ground, it may often be very difcult to make a determination about the lawfulness of imminent violence, such that security personnel ostensibly using force only in self-defence may (inadvertently) cross the line into direct participation in hostilities. Furthermore, even where force used in self-defence may not be a clear-cut case of direct participation, it may nevertheless erode the vital distinction between civilians and combatants, leading to a weakening of the ability of IHL to protect civilians. It is thus crucial for PMSCs relying on their ability to use force in self-defence to be able to identify what would constitute an unlawful attack for this purpose. There are a number of bases under IHL on which an attack or act of violence may be considered to be unlawful. As such, IHL adds an extra dimension in terms of what is unlawful that could be seen to broaden the scope of acts that can be undertaken without crossing over into direct participation in hostilities. However, for reasons which will be explained below, the mere fact that some element of an attack or act may be unlawful would not necessarily be sufcient to distinguish a violent response to such an attack from acts which constitute direct participation in hostilities.274 The central question is whether the unlawfulness is sufcient to mean that a responding use of violence lacks a belligerent
other legal reasons, not criminally liable. Yeo argues that the unlawful criterion should not be allowed to exclude the use of force in self-defence against cases where the assailants conduct was lawful only because of some legal defence available to him or her, such as where the assailant was a child or insane. Yeo, Anglo-African Perspectives on Self-defence, p. 126. Paciocco, Self-defence, p. 51. The ICJ has indicated that this is the correct approach in terms of assessing whether a deprivation of the right to life is arbitrary in human rights law in the context of armed conict. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, at para. 25. Reafrmed in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 136 and Armed Activities on the Territory of the Congo (Congo v. Uganda) (Merits) [2005] ICJ Rep 168. Even in the context of the ICC Statute and the unlawfulness element of self-defence, which applies precisely to situations of armed conict, there is very little in-depth discussion of the content of the requirement. See Ambos, Other Grounds for Excluding Criminal Responsibility, pp. 10315.

272 273

274

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nexus. The reason for this enquiry is that, when all other requirements of self-defence are met, this is the test that will distinguish force used in selfdefence from that which would constitute direct participation in hostilities. In order to develop an understanding of how unlawfulness should be interpreted in an IHL context, we propose a multi-part analysis. First, we will consider the different bases for the unlawfulness of an attack in IHL and assess whether action taken in response to that unlawfulness lacks a belligerent nexus so as to satisfy the IHL standard for distinguishing direct participation in hostilities from self-defence. We will then test whether that technical legal approach leads to realistic and reasonable results in practice. Finally, we will propose a single rule as an optimal solution to the problem (or at least as a guiding rule to be adopted). For the rst part of the analysis, we will group the type of unlawfulness under three broad categories: (i) unlawful due to what is being attacked, (ii) unlawful due to who is attacking, (iii) unlawful due to means and methods of attacking. 2.2.1 Unlawful due to the objective of the attack? The simplest case arises when an imminent attack/act is unlawful because it is an attack (including murder, rape, torture, assault) on civilians or (destruction) civilian objects. IHL prohibits attacks on civilians and civilian objects. Perhaps it is with this kind of attack in mind that the Interpretive Guidance observes that using force to defend oneself or others against violence prohibited under IHL lacks belligerent nexus.275 Indeed, the purpose of the use of force in defence of such attacks is clearly not to support one party against another. However, even this clear-cut case has its pitfalls in the PMSC context. First, obviously, the simple fact that PMSC personnel themselves are civilians and are in the vicinity of an object being attacked does not mean that the attack is an unlawful attack on civilians. Moreover, it must be recalled that if PMSC personnel are guarding an object that is a legitimate military objective, such as a convoy of ammunition destined for combatants, they are directly participating in hostilities and it is not unlawful for an opposing party to attack them directly. As the discussion above on direct participation showed, such persons retain their civilian status, but IHL does not prohibit a direct attack on them. Therefore, for
275

ICRC, Interpretive Guidance on the Notion of DPH, p. 61.

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PMSCs, it is important to bear in mind that it is not their mere qualication as civilians that determines the lawfulness of a direct attack on them and, furthermore, that their civilian status cannot be used as a pretext to legitimize their use of force in repelling an attack on a military objective. One must also take into account the particular role they have and whether they are already directly participating in hostilities. Secondly, when it comes to civilian objects, there is no set list of objects that are always civilian and protected from attack. Instead, even objects that are a priori civilian in nature can become legitimate military objectives through their purpose, location or use.276 This means that a PMSC guard cannot take for granted that the building he is guarding is always a civilian object and that any use of force against it will always be an unlawful attack on a civilian object. A further wrinkle to guarding objects is linked not to the unlawfulness of the attack on the object, but to the specics of the applicable selfdefence regime with regard to property as discussed above. It should thus be borne in mind that, while under IHL it is prohibited to attack civilian objects and an attack on such objects would ostensibly satisfy the unlawfulness criterion, one must be careful jumping to a conclusion that PMSCs may use force in self-defence of such objects. 2.2.2 The concept of attack justifying self-defence modied by IHL There is another important distinction added by IHL when it comes to the lawfulness of the objective of an attack, which involves the denition of what action constitutes an attack. IHL narrows the scope of acts against which a person may exercise his right to self-defence: some acts that under criminal law in a purely peacetime framework may give rise to a right to exercise ones self-defence are perfectly lawful and may not be defended against under IHL. For example, under IHL, it is lawful in certain circumstances for a party to seek to take control over persons, places or objects without intending to destroy them. If, for example, a building is located in a place of strategic importance for a party, that party may have no intent to destroy it, but may wish to occupy and use it. The armed forces of that party may thus enter and take control of the building, using violence only if they encounter resistance. The same is
276

Art. 52(2) AP I; see above, section 2.1.1, starting at n. 183 and accompanying text; see also Sassli and Cameron, The Protection of Civilian Objects. Objects may also be legitimate military objectives by their nature, but these, such as tanks, barracks etc., are clearly not civilian objects and therefore should never be guarded by civilians.

468 legal rules applicable to pmscs and their personnel

true for a village, a house or other location. This action is not an attack under IHL.277 Under ordinary criminal law, however, one may defend ones property either against destruction by another or against theft. For PMSCs guarding a building, for example, it would thus be relevant to know whether an armed group seeks merely to take control of that building or whether it seeks to attack it (and those inside). In addition, property may be requisitioned by enemy armed forces under IHL. As long as the requisition conforms to the requirements set out under IHL, it would be unlawful for a person to use force in self-defence to resist complying with the requisition, even though it may seem as though property is being taken against a persons will.278 When it comes to actions involving taking persons into custody, a similar nuance is required. As we noted above, some states laws on self-defence permit the use of force in response to an offence, which may entail a broad spectrum of acts.279 For example, if a person detains another, in many states such an act may consist of an offence such as unlawful connement. While a use of deadly force is often not permitted unless the attack itself poses a lethal threat, criminal laws permitting self-defence against any offence would normally permit one to use at least some degree of violence to prevent or resist being put under the physical control of another individual. However, under IHL, there may be many justications for a party to take control over persons and it may be inappropriate under the laws of selfdefence to use force to repel such an exercise of control. This situation is analogous to the force that law enforcement ofcers may use to carry out a lawful arrest, but it may be more difcult for the person being detained to understand and recognize the lawfulness of the exercise of control over him under IHL. It may thus render lawful certain acts thereby removing them from the realm of what constitutes an unlawful attack against which, in peacetime, a person may use his right to self-defence to impede. While it may be difcult to know in advance whether approaching forces are intending to take control of a person or object (again, using force only if they encounter resistance) or whether they anticipate using unlawful violence, these scenarios indicate that persons believing they need to use force in self-defence should not be the rst to use violence.
277

278 279

Art. 49(1) AP I. If however the attack is part of a campaign of ethnic cleansing, with or without a use of violence, it would be an unlawful attack under IHL and would give rise to a right to use force in self-defence. See e.g. Art. 52 Hague Regulations for the rules on requisitioning property. See above (n. 261).

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These caveats aside, these are the clearest cases in which force may be used in self-defence against attacks that are unlawful under IHL, such that PMSCs may rely on that legal basis to carry out their contractual obligations to protect such persons or objects (subject to the limitations indicated in the discussion below). Recall, however, that self-defence is always a defence to a criminal charge; it does not entail some kind of preemptive exoneration of behaviour but must be pleaded in response to criminal charges.280 2.2.3 Unlawful due to the identity, status or other characteristics of the attackers? There is some controversy as to whether it is unlawful under IHL for a non-combatant to directly participate in hostilities. According to some states interpretation of IHL, it is, such that any attack by a person without combatant status would be an unlawful attack. This is not the case for all states, however. In our view it is not a direct violation of IHL by an individual for that individual to directly participate in hostilities, even though, as we argue above, it is our position that states should not take steps that encourage or lead non-combatants to directly participate in hostilities in order to avoid compromising the obligation to ensure the respect of IHL. Consequently, if the test, as we propose it must be, is whether an unlawful attack must be an attack that is unlawful under IHL, the fact that attackers do not have combatant status but are committing acts of hostilities does not, in itself, mean that the attack is unlawful so as to satisfy this requirement under the law of self-defence in the context of armed conict. Thus, the fact that it is an imperfectly constituted armed group (in international armed conicts) or outlawed armed group (in noninternational armed conicts) that is attacking a legitimate military objective in a way that otherwise respects humanitarian law does not make it unlawful merely due to the faulty status of the attackers, leaving it open to PMSCs to defend against such an attack (even if directed against a combatant or military objective) on the grounds of self-defence. What is paramount is the rest of the attack (on a legitimate military objective) and whether it is an engagement in hostilities by the attacking party.
280

For an example of how criminal defence lawyers may try to twist self-defence into a right to use force that obviates the need for criminal proceedings, see J. Markon, Two Defense Contractors Indicted in Shooting of Afghans, Washington Post, 8 January 2010, p. A 03. The lawyer defending the PMSC contractors accused of murder for having shot and killed civilians protested that the contractors should never even have been charged with a crime since they were acting in self-defence.

470 legal rules applicable to pmscs and their personnel

However, we acknowledge that this analysis has its limits in practice. What, in the uidity and chaos of armed conict, may be the apparent differences between an imperfectly constituted armed group mounting an attack on an oil pipeline and a criminal gang (whose same acts would not amount to hostilities and therefore it would not constitute direct participation in hostilities on the part of PMSCs to use force in defence against such acts)? How are PMSCs, sometimes hastily constituted forces themselves, often with intelligence capabilities that are sorely inadequate, supposed to differentiate between the two in the heat of such an attack? An additional complicating factor in this example is the ambiguity of the oil pipeline itself as a legitimate military objective. It is an object that could certainly be a military objective, but it is not necessarily so in nature. Moreover, in unstable situations, it is just as likely to be attacked by criminal gangs seeking to loot petrol as by armed groups for military reasons. There is, thus, a high degree of ambiguity in both the identity of the attackers and the lawfulness of the military objective itself. This, in a sense, is the heart of the matter. If there were not quasicriminal, quasi-armed group elements active in theatres of armed conict today, there would likely be far less reliance on PMSCs as security guards. For the PMSCs in question, acting in a manner that ensures that the essential distinction between civilians and combatants is not further weakened by the increased participation of various non-combatants in hostilities demands a sophisticated understanding of IHL. In our view, the only solution to the complex legal problems introduced by a scenario such as that above is the development of policies regarding the use of PMSC guards that signicantly limit the likelihood that they will be placed in situations where they will be called upon to distinguish between and respond to such attacks. 2.2.4 Unlawful due to means and/or methods of the attackers? Under IHL, an attack may be unlawful because it is disproportionate or indiscriminate.281 Certain weapons are unlawful as they have been specically banned by treaty.282 It is also unlawful to attack treacherously
281 282

Arts. 51(5)(b) and 51(4) AP I. See e.g. Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, in force 8 February 1928, 94 LNTS 65; Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, in force 2 December 1983, 1342 UNTS 137, 19 ILM 1524 (and its protocols); Convention on the Prohibition of the Use, Stockpiling, Production and

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or perdiously.283 In addition, a combatant who makes an attack on a legitimate military objective but who fails to distinguish himself from the civilian population loses POW status.284 Do all of these scenarios, and others like them, amount to unlawful attacks such that PMSCs may exercise force in self-defence without such acts crossing the line to amount to direct participation in hostilities? Another way of phrasing the question, as the Interpretive Guidance puts it, may be: do these acts amount to violence that is prohibited by IHL? Some clearly do, but using force in ostensible self-defence to protect others against such acts may not, contrary to what the Interpretive Guidance seems to indicate, in fact lack a belligerent nexus so as to remove such action from the remit of direct participation in hostilities. For example, a PMSC employee who spots an individual who is pretending to be a wounded civilian but who (the PMSC realizes) is in fact a combatant about to mount an attack on a group of opposing combatants nearby, would be directly participating in hostilities if he were to attack the (feigning) wounded civilian in order to protect the combatants. Feigning to be a wounded person to use the protection IHL accords such persons in order to then attack combatants constitutes perdy, and perdy is a use of violence that is prohibited under IHL. It is unlawful. However, the PMSC employees acts are clearly designed to protect the combatants and cause injury to the other side, such that we may not conclude that a belligerent nexus is missing. The fact that the perdious conduct is itself unlawful cannot remove this act from the scope of direct participation in hostilities and place it within the exclusive realm of self-defence. What matters in this case is that the PMSC is using force to defend combatants. This example illustrates that IHL imposes a limitation on the general right to act in defence of self or in defence of others: in the context of an armed conict and against a party to an armed conict, combatants must be excluded from the others that may be defended in self-defence. What of disproportionate attacks? May a PMSC guard use force in self-defence against an imminent attack that he considers will be disproportionate and, thus, unlawful? In our view, for a number of reasons, the answer is no. A disproportionate attack is one which:
Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997, in force 1 March 1999, 2056 UNTS 211; Convention on Cluster Munitions, 30 May 2008, in force 1 August 2010. 284 Art. 37 AP I. Art. 44(4) AP I.

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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.285

As such, determining the proportionality of an attack requires an ex ante analysis of what is likely to occur. It is predicated not just on the injury or damage it will likely cause, but on a careful balancing of that damage against the concrete and direct military advantage anticipated.286 It thus reects the fundamental structure and balancing act of IHL. A PMSC staffer will only be in a position to see the damage or injury he expects from the attack. Not having all the facts available to the planners, and thus unable to know or weigh the concrete and direct military advantage they expect from the attack, a PMSC employee cannot (or only in rare cases) presume to know that an attack will be disproportionate. Thus, the unlawful aspect cannot be determined in the circumstances in which PMSCs are relying on self-defence to ground their right to use force.287 Testing a violent repulsion of a potentially disproportionate attack against the belligerent-nexus criterion strengthens our conclusion above, but it also illustrates that the unlawful violence test to distinguish between direct participation and self-defence is not wholly satisfactory when it comes to the roles in which PMSCs are placed. A hypothetical example helps to esh out the problem. Consider a PMSC security guard standing in front of a day care centre. He is tasked with protecting the children in the day care centre due to general insecurity in the zone (an armed conict is ongoing). The day care centre happens to be situated next to a military arsenal. The PMSC guard sees that the arsenal is about to be targeted by opposing forces. The PMSC guard knows about the arsenal and fears that the explosions likely to result from the attack will injure or kill the children in the day care centre he is responsible for protecting. In his view, the harm likely to result from the attack is disproportionate (therefore unlawful) and he res on the attackers. The belligerent nexus criterion to test whether an act constitutes direct participation in hostilities requires us to examine whether the act of the
285

286 287

Art. 51(5)(b) AP I; Art. 57(2)(c) AP I. This is also a rule of customary international law: See Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Rule 14. For further discussion see Sassli and Cameron, The Protection of Civilian Objects. There is discussion in the doctrine as to whether mistake regarding the unlawfulness of the conduct is sufcient to justify a use of force in self-defence, including whether such mistake must be honest, reasonable or not permissible at all.

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PMSC guard is specically designed to injure the enemy in support of one party and to the detriment of another. At the same time, we are told not to look for hostile intent and not to consider the subjective motives of a particular individual. The belligerent nexus, the Interpretive Guidance says, relates to the objective purpose of the act. The objective purpose of the act in this scenario is to prevent such an attack from being carried out. But is the attacking party the adversary of the PMSC in this instance? That is to say, are his actions designed to be to the detriment of the attacking party? The answer to that question may depend heavily on who the PMSC guard is contracted by whether it be a government or party to the conict or simply an NGO in the area. A reasonable reading of the Interpretive Guidance indicates that if the PMSC guards actions in substance prevent an attack on a military arsenal, no matter his motivation for doing so, that action will be to the detriment of the attacking party. On this reasoning also, the PMSC guards action would constitute direct participation in hostilities, even though the attack is in some way unlawful. This conclusion is not, however, intuitive and may not sit well with a non-specialist in IHL: many would consider the PMSC guards actions as heroic and not something that should be discouraged or punished. But IHL does not want civilians to be put in positions where they will engage in heroic acts against opposing forces. If an attack is unlawful because the attacking party is using an indiscriminate weapon, does that unlawfulness give rise to a right for a PMSC to respond in self-defence? If the nature of the weapon or attack is such that the PMSC himself or civilians around him are in the direct line of re, it would be absurd to argue that he could not defend himself or the civilians from such an attack. On the other hand, if a PMSC observes that a party is using an indiscriminate weapon to attack a military objective and fears potential consequences, is the mere potential for error or harm to civilians sufciently unlawful to negate the belligerent nexus of the PMSCs attack on opposing forces so as to sustain a defence of self-defence? The second scenario is perhaps best limited by a consideration of whether it is necessary to use force in self-defence in such circumstances. However, in terms of the capacity of the bare unlawfulness of the indiscriminate nature of the attack as sufcient to negate a belligerent nexus in the PMSCs response using force to repel the attack, we have serious reservations. In limited circumstances, then, the unlawfulness of an indiscriminate attack may remove a violent response from the remit of direct participation in hostilities. A similar analysis may be made in terms of unlawful weapons. If a weapon is unlawful on the grounds that it may cause superuous injury

474 legal rules applicable to pmscs and their personnel

to those against whom it is directed, but it is directed only against combatants, the unlawfulness of the weapon does not give rise to a right for a PMSC to use force against the attackers in defence of the combatants. Again, this is because under IHL, self-defence in defence of others may never be used in defence of combatants. Such uses of force will always constitute direct participation in hostilities.288 But may, for example, PMSC security guards directly target individuals who are planting mines in a state that is a party to the landmines ban treaty? As with the scenario above, whether a plea of self-defence may be sustained will likely turn on the question of necessity to take such action in the circumstances. Another tricky scenario is if the unlawful weapon is, for example, a chemical weapon which is being used against combatants but whose effects will harm civilians. In such cases, the problem is muddy. The objective of the attack is a legitimate military target such that interfering with such an attack will satisfy the belligerent nexus criteria of supporting one side against another. Yet it is understandable that a civilian person charged specially with protecting civilians will see the danger in the attack and in good faith want to protect those civilians. 2.2.5 Does this analysis work in practice? These examples of factors that may make attacks unlawful raise difcult and disturbing questions, and the responses are not wholly satisfactory. What about an attack on a military objective that may be unlawful on more than one of the above grounds? Does the fact that it is mostly likely to be disproportionate outweigh other factors? But, what is more, can we honestly expect a person who is placed in the role of guarding civilian persons or objects to make a complicated analysis of the factors leading him to qualify an attack as unlawful in the split second in which he needs to determine his response? Is it reasonable and realistic for the law to demand this kind of analysis before responding? Moreover, how important is it to avoid direct participation in hostilities compared with saving civilian lives? For many, such scenarios may seem exceptional and worthy of being construed as legitimate conduct, regardless of whether it is frowned upon by IHL. This discussion illustrates that it is vital to determine whether selfdefence should be construed broadly or narrowly in the context of armed conict. There are principled reasons to support both positions, but the only conclusion commensurate with IHL is that it must be construed
288

Assuming that the combatants in question are not wounded or otherwise hors de combat, of course.

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narrowly. If one considers that IHL seeks to protect individuals, one may arrive at the conclusion that self-defence must be interpreted in such a way that it allows civilians to defend against an attack whose effects would put them (or other vulnerable civilians around them) in danger. Commenting on the provision on self-defence in the International Criminal Court (ICC) Statute, Kai Ambos states, The use of force is unlawful if not legally justied. Given this broad denition, only the danger implied by the use of force can restrict the scope of application of selfdefence. Certainly, danger must imply a serious risk for the life or physical integrity of a person .289 With all due respect, this construction of what is unlawful is unhelpful. Danger to civilians cannot be used to give content to the concept of what is unlawful in a situation of armed conict because, unlike in peacetime, a perfectly lawful military operation that satises all the requirements of being proportionate and discriminate may nonetheless result in the loss of civilian lives. That is to say, even lawful acts in armed conict may put civilian lives in danger. In situations of armed conict, one cannot easily draw a straight line between what is dangerous and what is unlawful; plenty of lawful acts are also dangerous for civilians. Indeed, protecting civilians is only one part of humanitarian law in order to be viable, it requires balancing protection against military necessity. In fact, widening the scope of self-defence to take up arms on the basis of self-defence in this way disrupts the structure of IHL. While it seems counterintuitive to argue that civilians may not take up arms in their own defence in such circumstances in order to increase the protection IHL offers them, this is the philosophy of IHL. The concern is that combatants would be more likely to attack civilians directly if they believe that those civilians will try to defend against attacks and even against potentially lawful attacks based on a broad interpretation of the right to self-defence. If we were to accept that there is a right to use force in self-defence against attacks on military objectives that may in some way be unlawful, that interpretation would threaten the essential separation between combatants and civilians. Indeed, the solution of IHL for situations where civilians are in proximity to military objectives and therefore whose lives are in danger due to the likelihood of attack is not that such civilians may take up arms against attacks on the objectives close to them. It is rather to urge states to keep military objectives as far as

289

Ambos, Other Grounds for Excluding Criminal Responsibility, pp. 10323.

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possible away from civilian centres and to separate civilians/civilian objects from military personnel and objectives. 2.2.6 Proposed guiding rule In order to arrive at a practical, workable interpretation of unlawful attack for IHL and self-defence, we propose the following rule of thumb: if an attack is directed at a military objective or at combatants, even if some element of that attack is unlawful, a civilian PMSC contractor or security guard may not interfere.290 Similarly, a civilian PMSC may not interfere if it may be expected that persons belonging to the enemy do not want (absent resistance by the defenders) to kill, injure or destroy, but arrest persons or to obtain control over objects. While we acknowledge that reducing complex legal questions to single rules will not always produce entirely satisfactory solutions, we believe that it is both necessary and helpful to identify a touchstone principle that takes into account the overarching concerns and fundamental principles of both self-defence and IHL. The Interpretive Guidance suggests that the one rule is violence that is unlawful under IHL that gives rise to self-defence that would lack a belligerent nexus. We believe the actual rule is more nuanced than that. Many of the unlawful attacks listed above even count as grave breaches of the Geneva Conventions and are the epitome of unlawful violence under IHL, but, as our analysis has shown, not every defence against them will lack a belligerent nexus. This conclusion will inform our examination of the nal two elements of self-defence necessity and proportionality with particular consequences for our interpretation of necessity.

2.3 The use of force in response must be necessary That the use of force to defend oneself be necessary is a universal element of the defence of self-defence.291 Determining the content of what it means for force to be necessary, is, however, not a straightforward exercise. In particular, there is much doctrinal dispute around the
290

291

This conclusion has repercussions for an appropriate regulatory framework: if, as we argue is the case, it is the question whether an object is a military objective that is the key factor making an attack unlawful, this leads to a conclusion that PMSCs should not be responsible for guarding things that are military in nature, are highly likely to become so due to their nature (i.e. dual-use objects) or that are located in places where operations are ongoing. One can even say that it must be required in order for a states criminal laws to be in line with their obligation to protect the right to life.

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appropriate manner of interpreting the two key elements of imminence and the duty to retreat. The context of armed conict affects the manner in which these elements must be interpreted in light of IHL. It is important to recall that IHL already contains a principle of necessity. However, for the rules on self-defence, we must consider the relevant elements of necessity in that paradigm and its relationship to armed conict. 2.3.1 Imminence of the threat By and large, domestic criminal law demands that a threat be imminent or so immediate as to leave no other option than to respond by force in order to sustain a plea of selfdefence.292 This requirement is not necessarily listed in all criminal codes as an element of the defence, but commentators argue that its existence is nevertheless present or understood.293 In some jurisdictions, the imminence requirement is considered to be part and parcel of the inquiry into whether the use of force was necessary or reasonable, in others, it is a stand-alone requirement.294 There is one very limited exception to the requirement that the threat of harm be imminent, recognized in common law systems, which is that in very circumscribed circumstances, some jurisdictions permit battered women to kill their batterers in self-defence even when the batterer was not about to attack them at that particular instance.295 It is highly unlikely that PMSCs will be in a position to avail themselves of this narrow exception to the imminence requirement. It is thus important to underscore that, battered women aside, the existence of a prior threat from a particular individual does not, in the absence of a new, specic and immediate threat from that same person, satisfy the requirement that a threat be imminent.296 This is important to bear in
292

293 294

295

296

Hermida, Convergence of Civil and Common Law, pp. 21013. Hermida makes extensive references to civil codes and to US jurisprudence. In China, the attack must have begun and/or be on-going in order to sustain a defence of self-defence. See Mi Zhou and Shizhou Wang, China in F. Verbruggen (ed.), International Encyclopaedia of Laws: Criminal Law (2001), paras. 1634. Yeo, Anglo-African Perspectives on Self-defence, pp. 1267. Paciocco, Self-defence, pp. 512; Leverick, Killing in Self-defence (esp. Ch. 5, Imminence of Harm), p. 88. This is the case with UK criminal law. See Ashworth, Selfdefence and the Right to Life, p. 284; J. Slater, Making Sense of Self-defence (1996) 5 Nottingham LJ 140, 1423. See Hermida, Convergence of Civil and Common Law, pp. 21112. Hermida indicates that this exception is limited to common law jurisdictions. Paciocco, Self-defence, p. 52. He notes that while a prior attack may give reason to fear someone, it does not satisfy the necessity of attacking in the absence of another attack. See also Grabczynska and Kessler Ferzan, Justifying Killing in Self-defence, p. 240.

478 legal rules applicable to pmscs and their personnel

mind in an armed conict context, as one of the scenarios below will illustrate. PMSCs may thus not rely on self-defence to attack, in the absence of an imminent threat, persons whom they have observed previously engaging in violent or threatening activities simply on the basis of those prior acts. 2.3.2 Duty to retreat Many criminal laws allow for the use of force that is reasonably necessary, which may allow a defendant slightly more leeway in the choice of means of response than a standard of strict necessity.297 On the other hand, when there is an option to retreat (thus causing no harm), states and theorists are divided as to whether defendants are obliged to take it. There are at least two circumstances in which it is generally acknowledged that there is no obligation to retreat, but neither of these applies to the situation of PMSCs working as security guards in conict areas.298 The position of some common law states is that having no option to retreat is not a formal prerequisite of selfdefence but that it is a factor in determining whether the use of force by the would-be victim was reasonable and necessary.299 In some civil law jurisdictions there is a duty to retreat if possible300 whereas in others there is no obligation to retreat.301 A human rights approach to self-defence, which would also take into account the right to life of the attacking party, may mean that a defendant may not stand his ground and ght back regardless of an opportunity to protect himself by retreating.302 The extent to which the right to life of an attacking party needs to be taken into account in a situation of armed conict is perhaps even less straightforward than in a purely domestic
297

298

299

300

301

302

See e.g. Yeo, Anglo-African Perspectives on Self-defence, p. 129, comparing the Sudanese Penal Code (strict necessity test) with other African codes. One is persons with battered womens syndrome and the other is people who are protecting their own homes from home invasions. See Paciocco, Self-defence, p. 57. Ibid., pp. 567; this is also the case in Ghana, Kenya, Botswana and Sudan. See Yeo, Anglo-African Perspectives on Self-defence, p. 129. While there is no uniform rule in the United States, a majority of US jurisdictions do not impose an obligation to retreat on a defendant. See V. F. Nourse, Self-defense and Subjectivity (2001) 68 U Chicago L Rev 1235, 1237 and n. 10. E.g. in Belgium. See L. Dupont and C. Fijnaut, Belgium in F. Verbruggen (ed.), International Encyclopaedia of Laws: Criminal Law (1993), para. 163. E.g. Denmark. See L. B. Langsted, P. Garde and V. Greve, Denmark in F. Verbruggen (ed.), International Encyclopaedia of Laws: Criminal Law (2003), para. 117. In Chile, the existence of a possibility to ee will not in and of itself render a use of force in selfdefence disproportionate. See S. I. Politoff, Koopmans and Ramirez, Chile, para. 136. Ashworth, Self-defence and the Right to Life, pp. 28990, 293 (citing case R v. Julien).

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criminal law context.303 This is because combatants may be attacked (by other combatants) with impunity under IHL. As such, their right to life is already altered by the IHL framework.304 Under English common law and the law of some US states, this aspect of the necessity requirement does not entail that a person must leave a place where he is even if he has been warned that people are coming to attack him (unlawfully). Rather, the obligation to limit the harm that his self-defence may cause the attackers arises only once their actual attack is imminent or ongoing.305 Such an interpretation does not sit entirely well with the rules on the conduct of hostilities in IHL, however. Under IHL, armed forces are encouraged to give warnings prior to attack where feasible as a precautionary measure to reduce civilian losses.306 The logic behind this rule is that civilians can then move away from a legitimate military objective and their lives will be spared. It goes against the grain of IHL to interpret the right to self-defence in such a way that a properly given warning of attack would give rise to a right to civilians to stand their ground and ght such an attack (on the grounds of some presumable unlawfulness of some aspect of the attack) without such action being construed as direct participation in hostilities. At the same time, in a peri-conict situation, the importance of not obliging law-abiding civilians to leave a place to avoid confrontation when an unlawful attack is announced can be crucial to protect against ethnic cleansing. Indeed, in peacetime, one of the key values that is arguably protected by interpreting necessity as comprising no duty to retreat is the preservation of the freedom of movement of the law-abiding person threatened with attack.307 Although freedom of movement is a derogable right in situations of emergency such as those prevailing in armed conict, it nevertheless remains extremely important in such situations as it is integrally linked with limiting internal displacement and, on the other hand, enabling civilians to seek safe havens. It is therefore important to understand how the duty to retreat rule must operate in light of IHL in a
303

304

305

306

See Leverick, Killing in Self-defence and Grabczynska and Kessler Ferzan, Justifying Killing in Self-defence for debates. For the right to life of ghters in non-international armed conicts, see Sassli and Olson, The Relationship Between IHL and Human Rights Law and Louise DoswaldBeck, The Right to Life in Armed Conict: Does International Humanitarian Law Provide All the Answers? (2006) 88 Intl Rev Red Cross 881904. Ashworth, Self-defence and the Right to Life, p. 295 (citing English and US jurisprudence). 307 Art. 57(2)(c) AP I. Ashworth, Self-defence and the Right to Life, pp. 2956.

480 legal rules applicable to pmscs and their personnel

situation of armed conict. The following examples will clarify the interaction between the concepts of self-defence, human shields and direct participation in hostilities in light of the duty to retreat and unlawfulness elements of self-defence. In an armed conict and especially in the context of ethnic cleansing whether it is soldiers or run-of-the-mill criminals who try to kill, rape or ill-treat, the individuals defending themselves against such attacks will not be directly participating in hostilities. Under the pure criminal law standard of a duty to retreat308 and under the duty to retreat as it operates in light of IHL in armed conict, a person who stands his ground and ghts an attack, even when he knows that such tactics may be used or has warning of such attack, will in all likelihood meet the test of necessity for self-defence. If, however, an armed force has an aggressive policy of attacking apartment buildings where ghters (even low-level foot soldiers) are hiding and they announce an attack on an apartment building that will clearly be disproportionate (and, thus, unlawful), the residents of that building may not rely on a no duty to retreat rule to mount a defence. While the warning given does not give rise to an obligation on the part of the residents to leave the building, the only thing self-defence permits them to do in such a case is to remain peacefully present. This is the nub of the intersection of the three concepts: the fact that the civilians remain present in the building after a warning of attack has been given does not mean that they are directly participating in hostilities as human shields by the fact of their very presence on a military objective. However, those civilians (or for that matter PMSCs responsible for protecting the building) cannot rely on the fact that they did not retreat after the warning was given to put themselves into a situation where it is necessary to use force such that their counter-attack is removed from the realm of direct participation in hostilities. With regard to the belligerent nexus of the attack, our example betrays no clearer will or intent on the part of the civilians seeking to protect their homes of a belligerent nexus than does the PMSC security guard in front of the day care centre. The civilians may even wish that the ghters would leave their building and have absolutely no wish to protect them, but not wish to suffer the consequences of having their homes destroyed if military forces bomb the building. Nevertheless, if they mount a

308

In many jurisdictions, in any case.

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defence against the disproportionate attack on their building, they will nevertheless be directly participating in hostilities. Moreover, those who argue that people who remain at/near a military objective so as to affect the proportionality of the attack are human shields and thereby directly participate in hostilities must conclude that in IHL there is a strong duty to retreat requirement for self-defence. To be consistent and preserve the integrity of their arguments, they should apply such reasoning to all civilians in all situations, such that PMSCs are also under a duty to retreat when attacks begin. This analysis reinforces the logic of our proposed rule of thumb above: if we reduce the above example to the single most important factor delineating the boundary between self-defence and direct participation in hostilities, we again are left with the fact that the attack was on a legitimate military objective.

2.4 The use of force must be proportionate Under many domestic criminal laws, a person may only use deadly force against deadly attacks.309 Some criminal codes broaden the scope of attacks against which lethal force may be used in self-defence to include offences such as rape or other attacks that severely compromise physical integrity.310 For the most part, courts will weigh whether the force used was reasonable; in general, the urgency of conditions culminating in a use of force in self-defence suggest that one cannot impose a least harmful means obligation on defendants.311 Nevertheless, the proportionality analysis sets important limits on the scope of the defence: according to Chinese self-defence law, it is commonly agreed that the defence should stop as long as the attacker is being controlled or has lost the ability to continue the attack.312 Where the unlawful attack put the defenders life in danger or seriously threatened his physical integrity, most courts will nd the use of deadly force in response to be completely proportionate.313 Proportionality is a more signicant factor in cases of defence of property. Where the force
309 310 311 312

313

Hermida, Convergence of Civil and Common Law, pp. 21011. Yeo, Anglo-African Perspectives on Self-defence, pp. 122 and 132. Ibid., p. 129. Zhou and Wang, China in F. Verbruggen (ed.), International Encyclopaedia of Laws: Criminal Law (2001), para. 166. Some jurisdictions use a standard of what is reasonable in the circumstances. See Pradel, Droit pnal compar, p. 139, citing in particular the UK but observing that this standard est constant dans divers droits.

482 legal rules applicable to pmscs and their personnel

used in response to an unlawful attack was excessive, by and large, courts follow one of three possible avenues: (i) the sentence is reduced, such that the self-defence plea is rather considered to be a mitigating circumstance rather than a justication; (ii) they may change the qualication of the offence charged; or (iii) self-defence is not accepted and there is no reduction in sentence.314 For the sake of completeness, we note that in domestic criminal law, the innocence of the defender is an important element for the success of a self-defence plea. That is to say, the person using force in self-defence must not have provoked the initial attack. In our view this aspect of the defence needs no specic modication in light of IHL but should be borne in mind by those anticipating relying on the defence in the course of their daily work. In conclusion, in a situation where there is a group that seeks to exploit the right to use force in self-defence as a means of commercial prot, it is reasonable to surmise that they may push for a broad interpretation of what is violence prohibited by IHL so as to enlarge the scope of activity in which they may lawfully engage. In this respect, the phrase violence prohibited by IHL in the Interpretive Guidance is unfortunately vague and over-broad, and perhaps does not perfectly encapsulate what the experts had in mind when they afrmed that force used in self-defence does not constitute direct participation in hostilities. Indeed, in the reports of expert meetings, the language used to describe the expert opinion reects a more circumspect right of self-defence than the wording the Interpretive Guidance could arguably be construed to allow if IHL is not read into it. According to one report, All the experts who spoke on the subject stressed that individual civilians using a proportionate amount of force in response to an unlawful and imminent attack against themselves or their property should not be considered as directly participating in hostilities.315 We note, in particular, that this description of self-defence does not include the defence of others, despite the fact that that aspect is common to most national criminal laws, which perhaps explains one reason why the experts were not alert to a need to carefully describe the contours of self-defence in the context of armed conict and in light of IHL. The examples provided in the Interpretive Guidance include looting, rape, and murder by marauding
314 315

Ibid., p. 139. ICRC, Direct Participation in Hostilities under International Humanitarian Law: Summary Report (2003), p. 6.

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soldiers, but these are preceded by the more general term unlawful attack, which is listed as an alternative.316 Part of the problem is that it is not entirely reasonable to expect people not to react when the role they are tasked with is protecting people or objects and they or others around them are threatened with direct violence. It would almost be asking them to contravene human instinct to require them to step aside and let attacks go on if they suspect they are lawful attacks under IHL especially because it is a group of civilians, who (theoretically) are not necessarily inculcated with an instinct for IHL/laws of armed conict. Indeed, Andrew Ashworth, quoting Thomas Hobbes, argues that the instinct towards self-preservation is so strong and basic to human nature that no law can oblige a man to abandon it.317 This is the crux of the matter with PMSC security guards both they and the states contracting them insist that they are civilians but their role in hostile environments and the near impossibility of responding to an attack in a manner that contravenes human instinct means that their use in this context almost inevitably disrupts the structure of IHL. Even though US directives and policies direct that PMSCs should be used cautiously in areas where there are major ongoing combat operations,318 in todays theatres of conict, which often lack a predictable front line, this admonition may be insufcient.319 Indeed, where a state adopts a regulation or law stipulating that contractors may only use force in self-defence, yet at the same time puts out calls for tenders for the same contractors to bid on contracts to provide security for forward operating bases in Afghanistan, the exploitation of the use of force in self-defence is agrant. While such a restriction to use force

316

317 318 319

ICRC, Interpretive Guidance on the Notion of DPH, p. 61: For example, although the use of force by civilians to defend themselves against unlawful attack or looting, rape, or murder by marauding soldiers may cause the required threshold of harm, its purpose clearly is not to support a party to the conict against another. If individual self-defence against prohibited violence were to entail loss of protection against direct attack, this would have the absurd consequence of legitimizing a previously unlawful attack. Again, part of the problem with the phrasing of this rather categorical statement is the assumption that self-defence will only be used in defence of oneself. Ashworth, Self-defence and the Right to Life, p. 282 (citing a passage from Leviathan). DoD Instruction 3020.41 3 October 2005, section 4.4.2. DoD Instruction 3020.41 3 October 2005 is in the process of being revised and, according to US government ofcials, contains signicant changes to the existing instruction.

484 legal rules applicable to pmscs and their personnel

only in self-defence may be meaningful in terms of domestic laws on outsourcing,320 it does not dispose of the question as to whether such conduct constitutes direct participation in hostilities. As an additional note, we caution that PMSCs recruited to work in different states may be surprised to learn that the same principles are not applied in exactly the same manner everywhere. Thus, companies using PMSCs in security roles where it will be anticipated that they will rely on the defence of self-defence should inform recruits of the legal framework applicable in the relevant state. Again, it must be recalled that this basis for using force applies in defence to criminal charges, thus there is a certain degree of vulnerability on the part of those who must use it no matter how well they know the law.

Scenarios on self-defence for a private armed guard of an occupation administration compound 321

A man is employed by a PMSC to guard a compound which he is informed contains civilian administrative ofces for the occupation administration in an international armed conict. As an ex-military serviceman he is aware that such a location is not a military target and is condent that he is working simply as a civilian guard. He has been working in this war zone for some months and has become familiar with the methods employed by insurgents, such as suicide car-bombings and roadside improvised explosive devices (IEDs), both of which he has personally witnessed. He has lost a number of colleagues in such attacks. The area where the ofce is located is not currently under attack by enemy armed forces, although ghting continues in the territory and the front line is never clear. There is also a high level of looting and many insurgent attacks occur in the vicinity. The guards orders from his employer are that he must defend the compound from any and all attacks, calling for reinforcements from the PMSC if necessary. He has signed a contract acknowledging that the work he undertakes is dangerous and potentially life-threatening.
320

321

US Federal Regulation, Title 32, National Defense, A.I.F (Security), Part 159, Private Security Contractors Operating in Contingency Operations, 17 July 2009, ss. 159.3(1) and accompanying footnote is phrased as restricting the use of force to self-defence so as to comply with the prohibition against outsourcing inherently governmental functions. The authors extend their warm thanks to Mary Picard for having drafted these scenarios and their accompanying legal analysis.

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3.1 Scenario one: armed threat by civilian gang The guard is on duty inside the entry gate at dusk, where a lightly armoured vehicle from his company is about to proceed through the electronically operated gates, which have begun to open. He knows it is the new shift of guards, so that there are six or more of his colleagues inside, as well as the driver. Suddenly two men appear from the shadows carrying what appear to be sawn-off military ries. They stand on either side of the truck cabin, pointing their weapons at the driver, and demand that he gets down and gives them the keys. The gates are not yet open sufciently for the driver to crash through and he has no means of escape. The guard immediately takes aim at the assailant on his side of the vehicle and shoots him in the lower back, careful not to aim high enough to injure his colleagues in the truck. The man falls to the ground, still grasping his weapon, and the guard quickly shoots him in the head, killing him. He then turns to the other assailant, who by this time has dropped his weapon and is running away. The guard res after him but he disappears into the dusk.
Legal analysis: This is clearly a situation in which the use of force in defence of others is warranted and can justify intentional or accidental killing. The life of the driver is threatened directly, and those of his six colleagues also, in the event that the assailants gain control of the vehicle. The use of a rearm appears necessary in order to safeguard the lives of the seven in the truck, and potentially the guards own life, once the armed assailants become aware of him. However, the question of necessity or proportionality may arise regarding the guards second and fatal shot at the rst assailant. Perhaps it may appear necessary and reasonable, given that the assailant is still armed after the rst shot and also that there is little time for the guard to check this mans state, especially given that there is a second assailant whom the guard knows could attack him at any moment. The second, fatal, shot may well be justied as self-defence in these particular circumstances, given that the man has not been disarmed and continues to pose a threat to the life of the guard himself. However, the shots red at the now-unarmed and retreating second assailant are not justied as self-defence or defence of others, as the man no longer poses an imminent threat.

3.2 Scenario two: anticipated car bomb attack The guard is on duty in a bullet-proof viewing box outside the gates of the compound. He notices an old jeep approaching at high speed. It is not a model used by the military or occupation administration. He has previously seen similar vehicles driving straight at food convoys in the

486 legal rules applicable to pmscs and their personnel

open countryside, which turned out to be suicide bombers and killed a number of his colleagues. He immediately takes aim from the special aperture in his guard box and res a shot towards the drivers window of the approaching vehicle. The vehicle swerves and slows but continues towards the gates in an erratic manner. He continues to re on the vehicle. Some 30 m from the compound gates the entire vehicle explodes, leaving a sizeable crater in the road, but not breaching the walls of the compound nor the guards viewing box.
Legal analysis: this is a highly problematic case for the rules of selfdefence, as the perception of the threat is based on knowledge and experience of particular practices in this conict, rather than any strong indication of an imminent threat at this particular time. The main reasons for the guards belief in the existence of a threat are the type of vehicle and the speed and persistence with which it is approaching the gates. In peacetime, and even in normal situations of civil unrest, it would not be reasonable to assume that a rapidly approaching vehicle of a certain make is a suicide car-bomber. The fact that the feared threat has materialized in this instance makes it extremely unlikely that the guard will face any kind of prosecution, in part because ring at the vehicle seems in retrospect to have been a reasonable action in self-defence. But if the perception of the threat had been mistaken, and the vehicle was in fact driven by a person seeking refuge in the compound while being pursued by criminals, while the issues would be the same from a strictly legal point of view, the self-defence justication would probably have been examined more objectively. In this respect there is little objective evidence of an imminent threat, even with a knowledge of insurgent practices, when the vehicle rst appears. It therefore does not seem necessary to use lethal force directed at the vehicles driver, in the absence of prior warning shots or shots at the tyres of the vehicle, although this depends on speed and distance in a given case. A failure to respond to such warning shots would be a clearer indication of an intended threat.

3.3 Scenario three: attempted theft of property by civilians A group of ve unidentied persons attempts to break open the back of a food supply vehicle which is waiting to enter the compound. The vehicles driver is in the entry ofce obtaining clearance at the time of the attack. The attackers are carrying iron crowbars, which they are using to prise open the truck. It is impossible to know whether they carry other weapons. They are paying no attention to the guard, who at this time is in a bullet-proof observation box at the gate, which has a direct entry door into the secure compound. He has called the occupation law enforcement agents in similar situations previously, but they have not been able to

use of force by pmsc personnel in self-defence

487

attend the scene in sufcient time. The guard is armed with a paramilitary rie, a pistol and hand grenades, but he hesitates to use them as the situation does not comply with company rules on the use of lethal force. But he knows he will lose his job if he simply allows the theft to continue. However, he does not wish to risk his own life by emerging from the guard box alone. He calls for reinforcements and is told a helicopter will be there in ten minutes. Meanwhile the group has opened the truck, and has begun loading the food supplies into sacks. He res warning shots into the air with his pistol. They react by taking shelter behind the truck doors while they continue to unload the food. He then res towards the ground at the back of the truck where he can see their legs.
Legal analysis: this is an unlawful attack on property alone (the truck and the food supplies). No person, including the guard, is under an imminent threat, although there is clearly the potential for confrontation if the group is challenged. For the purpose of assessing the legality of the act, one would rst have to check whether the law of the country where the events happen allows for self-defence in defence of property. Even if they do, in our view IHRL prohibits the use of force that could endanger the lives of these persons while they do not threaten the life or limb of others, or must permit it only in limited circumstances carefully circumscribed by domestic law. The guard may use only non-lethal force to repel the group (such as tear gas, or rubber bullets),322 which he does not have. His action in ring the warning shot into the air with the pistol is probably lawful in the circumstances, as it is unlikely to endanger others. But, as this is not a situation of self-defence, he is not legally justied in ring at the group, even at the ground or their legs, given the high risk of injury or death to the targets when no other life is at stake.

Then he notices an old jeep approaching at high speed, similar to vehicles he has seen used in suicide car-bombings. He immediately res a shot towards the drivers window of the approaching vehicle. The vehicle swerves but continues on. He then continues to re on the vehicle until it comes to a halt, some 30 m from the compound gates, where it remains stationery and silent.
Legal analysis: the guards prior experience in this conict suggests the vehicle may present an imminent threat to his life and that of others, by means of a car bomb. However, there is nothing except its speed of approach to suggest he, or any other person, is threatened by the vehicle
322

Although these means would normally be reserved for law enforcement ofcials in peacetime, their controlled use may be justied in conict situations, especially as an alternative to lethal force.

488 legal rules applicable to pmscs and their personnel

on this occasion. The fact that it continues towards the gate after his rst shot, however, is grounds to increase his suspicion. On the other hand, there is a reasonable alternative explanation for the vehicles presence, as an accomplice in the food theft, so it may be that his belief that he is being threatened is mistaken and unreasonable. If, in the event, the driver is merely an accomplice in the theft of property and the guard has killed him, the guards belief about the imminent threat is mistaken. If, in all the circumstances, a court nds that his belief is nevertheless reasonable because of the practices of insurgent suicide-bombers in this conict, his intentional killing of the driver may be justied as self-defence; if his belief is found to be both mistaken and unreasonable, his actions cannot be justied as self-defence.

Meanwhile, the group at the food truck, only some 10 m from him, have seen the fate of the approaching vehicle. They point towards the guard, appearing angry. They begin to move towards him with iron bars raised. Frightened by the turn of events and angry at being threatened in this way, the guard res a number of shots at the group, at close range, from inside the guard box, before retreating into the compound. One of the group falls to the ground, clutching her throat. Another stumbles and appears confused. The group of ve retreats to the stationery jeep, two of them carrying the fallen woman, another supporting a man. They drive away. As he watches them go, he tells the food truck driver that he wishes he had killed them all, as he now fears reprisals.
Legal analysis: the guard is now being directly threatened by the group of ve carrying iron bars. They are close by and the threat is imminent. However, he is in a bullet-proof enclosure, which he knows will withstand a number of blows and he also has the option of safe retreat into the compound. In these circumstances, his use of lethal force against the group is unlikely to be justied as self-defence as (a) he is not under immediate threat because he is protected, at least for a time, by the guard box; and (b) his use of force is not necessary because he has a readily available means of escape into the compound.323

At this point the companys helicopter arrives. He boards it and they pursue the vehicle, which they subject to heavy re until it

323

The use of a rearm against people armed with iron bars would also normally be considered disproportionate, although this would probably not be the case for a sole guard without other protection or means of retreat, when confronted with a group of persons at close quarters, armed with iron bars (although in the case of a single person so armed, it may still be disproportionate).

rules applicable to law enforcement in armed conicts 489

stops moving. They hover nearby for some time afterwards, but no one emerges from the jeep.
Legal analysis: The pursuit of the eeing jeep and the use of lethal force against its occupants could never be justied as self-defence, as (a) the occupants of the jeep are not posing any threat to any person or even property and they are in fact retreating; and (b) even if they had posed a real threat earlier, they are no longer doing so, so that the force used against them is a reprisal and not self-defence (that is, force used too late).

D The rules applicable to PMSCs tasked with law enforcement in armed conicts 1 Identifying the applicable rules
Law enforcement responsibilities, in any context, include the broad responsibilities of the maintenance of public order and security, the prevention and detection of crime, and the provision of help and assistance to those in need of it.324 In peaceful societies these roles most commonly fall to members of specialist state services, such as gendarmes, police or security forces, whose role as servants of the state can be described as to serve and to protect.325 However, in the context of armed conict, including occupation, the serving and protecting and the other specic law enforcement functions may be divided between a range of actors, including the civil or military police, security forces or armed forces of the territorial state, or of an occupying power, or of a United Nations (UN) or other multinational force. Some law enforcement responsibilities may even be exercised by an armed group in control of all or part of a territory although both the applicability of IHRL to armed groups and the possibility of law enforcement by armed groups are controversial.326 Any of these responsible authorities may potentially delegate either specic or generalized law enforcement roles to PMSCs, whether formally or de facto. Although this is not so far an
324

325

326

C. de Rover, Police and Security Forces (30 September 1999), http://icrc.org/web/eng/ siteeng0.nsf/htmlall/57jq3h?opendocument. This is in fact the title of the ICRCs extensive manual which it uses for training law enforcement ofcials: C. de Rover, To Serve and to Protect: Human Rights and Humanitarian Law for Police and Security Forces (Geneva: ICRC, 1999), http://icrc.org/web/eng/ siteeng0.nsf/htmlall/p0698?opendocument. Marco Sassli, Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law (2010) 1 J Intl Humanitarian Legal Studies.

490 legal rules applicable to pmscs and their personnel

established practice, it seems likely to be an increasingly important issue in the future, especially under the various different forms of territorial administration, from control of a territory during hostilities, to occupation, through to peacekeeping and reconstruction (which may occur either sequentially or in parallel, in the same territory). After all, a number of states have chosen to delegate the running of civilian prisons to private corporations within their own territory, and some now contract PMSCs for both military training and training of civilian police forces.327 It is therefore important to consider the applicable law in circumstances where PMSCs, in the context of an armed conict, are empowered to engage in aspects of law enforcement, including use of force and rearms, arrest, detention, interrogation and treatment of detainees. Clearly these rules are also an important part of any training of state law enforcement ofcers conducted by PMSCs. In the context of an armed conict, and with a range of different actors undertaking law enforcement functions, it may also be difcult at times to determine which international law regime applies. Is it IHL or human rights law? For, while the essence of some of the rules of international humanitarian law and human rights law is similar such as the protection of human life and the prohibitions against torture or cruel treatment, or discrimination, and the basic rights in criminal proceedings care must be taken to ensure the proper articulation of the relationship between the two sets of rules.328 Two different approaches have evolved in order to explain the peculiar relationship of IHL with human rights law. A rst conception was drawn by the ICJ in its advisory opinion on Nuclear Weapons, where it clearly stated that, in situations of armed

327

328

E.g. DynCorp had a contract to train Iraqi police forces: see Ofce of the Special Inspector General for Iraq Reconstruction, Long-Standing Weaknesses in Department of States Oversight of DynCorp Contract for Support of the Iraqi Police Training Program (25 January 2010) (SIGIR 10008). This is also a sector the industry seeks to develop further: see the International Stability Operations Association (formerly IPOA, now ISOA) (2008) 4 J Intl Peace Operations 1, which features Civilian Police Training on the cover and includes three articles on different aspect of police training and postconict law enforcement. Many companies also advertise law enforcement or police training, for example: Triple Canopy, at www.triplecanopy.com/triplecanopy/en/train/ index.php?pg=law_enforcement. ICRC, Humanitarian Law, Human Rights and Refugee Law: Three Pillars, Ofcial Statement, Statement at the International Association of Refugee Law Judges World Conference, Stockholm, 213 April 2005, by Emanuela-Chiara Gillard, ICRC Legal Adviser, 23 April 2005, www.icrc.org/Web/Eng/siteeng0.nsf/html/6T7G86.

rules applicable to law enforcement in armed conicts 491

conicts, IHL was lex specialis.329 The Court nonetheless later nuanced its interpretation of the interplay of those two branches of international law by acknowledging a more complex relationship. In its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court identied three possible relationships between IHL and human rights law: (i) some rights may be exclusively matters of international humanitarian law, (ii) others may be exclusively matters of human rights law, (iii) yet others may be matters of both these branches of international law.330 Another way to conceptualize this relationship is the complementary but not mutually exlusive approach that is, that IHL and human rights law apply simultaneously. This is the position of the HRC in General Comment no. 31331 as well as the Inter-American Court and Commission on Human Rights.332 No matter the approach one takes, the precise interplay depends on the rules in question,333 and is also inuenced by the categorization of the conict as international or non-international, as the latter is regulated in less detail under IHL regarding the use of force.334 While the exact interplay between the two branches or their rules in a certain situation, as

329

330

331

332

333 334

Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, at para. 25. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, at para. 106. HRC, General Comment no. 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13, 2004, para. 11, stating that: both spheres of law are complementary, not mutually exclusive. See, most notably, IACtHR, Bmaca Velzquez v. Guatemala, Judgment, Series C, no. 70, 25 November 2000, para. 209; IACtHR, Las Palmeras case. Preliminary Objections, Judgment, Series C, no. 67, 4 February 2000, paras. 3234; IACtHR, Serrano-Cruz Sisters v. El Salvador, Judgment, Series C, no. 118, 23 November 2004, paras. 112 and 119. ICRC, Humanitarian Law, Human Rights and Refugee Law: Three Pillars. William Abresch, A Human Rights Law of Internal Armed Conict: The European Court of Human Rights in Chechnya (2005) 16 EJIL 74167; John Cerone, Human Dignity in the Line of Fire: the Application of International Human Rights Law During Armed Conict, Occupation, and Peace Operations (2006) 39 Vanderbilt J Transnl L 1447510; Cordula Droege, The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conict (2007) 40 Israel L Rev 347; Heike Krieger, A Conict of Norms: The Relationship between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study (2006) 11 JCSL 26591; Sassli and Olson, The Relationship between IHL and Human Rights Law; Marco Sassli, Le Droit international humanitaire, une lex specialis par rapport aux droits humains? in A. Auer, Y. Flckiger and M. Hottelier (eds.), Les Droits de lhomme et la constitution, Etudes en lhonneur du Professeur Giorgio Malinverni (Geneva: Schulthess, 2007), pp. 37595.

492 legal rules applicable to pmscs and their personnel

well as the meaning and utility of the lex specialis principle itself, are subject to controversy, it is uncontroversial that the use of force against civilians not directly participating in the hostilities is subject to IHRL even during armed conicts. Indeed, IHL does not contain any rules on the matter, except that civilians must be respected and their life must be protected. In asking the question of what legal rules apply to PMSC personnel who exercise law enforcement functions during an armed conict, it is therefore necessary to turn to both IHL and human rights law. For the actors themselves, of course, many of the specic rules will emanate from the relevant domestic law, but we are here concerned with the general principles and rules drawn from international law. Accordingly, we rst analyse the extent and nature of the law enforcement rules under IHL, then those under human rights law, including some important normative instruments and illustrative case law. We then examine the applicable legal rules in a range of concrete situations where law enforcement functions are involved, identifying the circumstances in which IHL and human rights law apply in relation to these activities, and setting out the content of the relevant rules. However, it should be noted that law enforcement functions are less specically regulated in IHL than in human rights law, so that many of these rules are in fact drawn from human rights.

2 Law enforcement rules under IHL

During hostilities in international armed conicts, the IHL on the conduct of hostilities provides detailed rules governing the use of force by armed forces. This includes any force used to injure, kill, capture or detain the adversary. One cannot speak of a law enforcement paradigm in that context and there are no specic rules on law enforcement activities for armed forces in the context of hostilities. If, however, during the course of hostilities, armed forces come across civilians committing offences such as looting (that is, conduct that does not amount to direct participation in hostilities), they may not summarily execute such civilians.335 If armed forces wish to deal with such civilians (which, in the course of hostilities they are not obliged to do) they may use force only to the same extent as police forces may in peacetime and must, whenever
335

No one may be punished by the death penalty without trial and without appropriate conditions for appeal etc. See Arts. 71, 75 GC IV.

rules applicable to law enforcement in armed conicts 493

possible, arrest them in view of a regular trial or, in case of derogations, must at least offer them the possibility to challenge the lawfulness of their detention. While the Geneva Conventions do not explicitly set down details of arrest procedures (nor, in non-international armed conicts, of admissible reasons for detaining persons for reasons related to the conict), they provide judicial guarantees for those who are actually tried, as outlined in more detail below. The detention of the adversarys combatant forces that is, taking POWs obviously remains a hostile act and cannot be carried out by civilians (without those acts constituting direct participation in hostilities) on the pretext that it is somehow law enforcement. In our view, this is also the case for the arrest and detention of members of an armed group involved in a non-international armed conict. Law enforcement that a belligerent carries out on its own (i.e. nonoccupied) territory during armed conict will be governed rst and foremost by its own domestic laws.336 The Geneva Conventions impose a detailed regime for protected civilians who may only be interned if the security of the detaining power makes it absolutely necessary,337 prescribe an individual procedure to determine whether such internment is justied338 and provide for fundamental guarantees for all other persons affected by the conict (i.e. that persons cannot be murdered, tortured etc.), but beyond that are somewhat laconic and circumspect in scope.339 In a situation of occupation, the occupying power is mandated with a specic law enforcement role in the occupied territory. Occupying powers are required to maintain law and order and administer the territory as far as possible according to the laws of the territory, as well as to comply with specic minimum standards, such as an individual procedure in case of internment for imperative security reasons,340 judicial guarantees in criminal trials, fundamental guarantees for prisoners341 and a detailed regime for the treatment of civilian internees.342 They

336 339 340 341

342

337 338 Art. 38 GC IV. Arts. 42 and 79135 GC IV. Art. 43 GC IV. See Arts. 413 GC IV; Art. 75 AP I; Art. 3 common to the four Geneva Conventions. Art. 78 GC IV. 1907 Hague Regulations, Arts. 4256; Arts. 2734 and Arts. 4778 GC IV. Agreements between local authorities and occupying powers cannot deprive the population of the protection of the Geneva Conventions, Art. 47 GC IV and protected persons cannot renounce their rights, Art. 8 GC IV. Arts. 79135 GC IV.

494 legal rules applicable to pmscs and their personnel

are required to restore, and ensure, as far as possible, public order and safety343 and to ensure respect for the rights of persons and their property.344 In both occupied territory and in a belligerents own territory protected persons (that is, for the most part, enemy civilians) must be treated humanely and are protected especially against all acts of violence or threats thereof .345 It is crucial, especially in situations of occupation, for armed forces to distinguish between situations necessitating a police operation in response and those requiring a military operation. In non-international armed conicts where IHRL plays a more signicant role even in a battleeld context, government armed forces seeking to use force against or to detain ghters operate on the cusp of a law enforcement paradigm.346 However, even though human rights rules may signicantly inform the acts that armed forces may take against ghters in non-international armed conicts, the use of force, arrest and detention of ghters or members of armed groups remains an act of hostilities. Consequently, if such acts were to be conducted by nonmembers of armed forces, those acts would constitute direct participation in hostilities. Otherwise, in non-international armed conicts the usual scenario is that the host state remains bound by its domestic laws on law enforcement (informed by IHRL). The IHL of non-international armed conicts thus has even less detailed rules specically on law enforcement in noninternational armed conicts than in international armed conicts, aside from fundamental guarantees regarding arrest and detention and judicial proceedings.347 It does not contain rules on when the arrest and detention of a person is admissible.

343

344 346

347

1907 Hague Regulations, Art. 43 (the latter phrase in the authentic French text is: lordre et la vie publics). For further elaboration of what this obligation entails, see Marco Sassli, Legislation and Maintenance of Public Order and Civil Life by Occupying Powers (2005) 16 EJIL 661; see also Eyal Benvenisti, The International Law of Occupation, 2nd edn (Princeton University Press, 2004); Y. Dinstein, The International Law of Belligerent Occupation (Cambridge University Press, 2009); G. von Glahn, The Occupation of Enemy Territory : A Commentary on the Law and Practice of Belligerent Occupation (University of Minnesota Press, 1957). 345 1907 Hague Regulations, Art. 43; Art. 53 GC IV. Art. 27 GC IV. Sassli and Olson, The Relationship between IHL and Human Rights Law; DoswaldBeck, The Right to Life; Abresch, Human Rights Law of Internal Armed Conict. Art. 3 common to the 4 Geneva Conventions, Arts. 46 AP II.

rules applicable to law enforcement in armed conicts 495

Law enforcement and human rights law

Aside from the aspects of law enforcement regulated by IHL during armed conict, the actions of law enforcement ofcers are almost always specically regulated under domestic law, which in turn is required to comply with IHRL. The basic international law principles for conduct by law enforcement ofcials are found in human rights law (custom, conventions, formally non-binding soft-law instruments, all of them developed by extensive case law).348 They are bound to respect fundamental human rights that may be affected by them during the conduct of their law enforcement duties, such as the right to life, the right not to be tortured or treated in an inhumane or degrading manner (in any circumstances but especially in detention), the right to liberty (not to be arbitrarily arrested or detained or required to do forced labour), the right to a fair trial and due process (including judicial review) and the right to be treated without discrimination on the grounds of race, gender and belief.349 However, the international community has also chosen to develop specic norms to guide the conduct of law enforcement ofcials, and this appears to be for two main reasons. The rst is that, by virtue of their duty to protect the public, law enforcement ofcials are more likely to be placed in a position where they have to choose between individual
348

349

Among the most relevant instruments: the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights (ICCPR); the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Status of Refugees (1951) and the UN Protocol Relating to the Status of Refugees (1967); the United Nations Declaration on the Elimination of All Forms of Racial Discrimination and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the International Convention on the Suppression and Punishment of the Crime of Apartheid; the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Convention on the Prevention and Punishment of the Crime of Genocide; the Standard Minimum Rules for the Treatment of Prisoners; the Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment (UNGA Res. 43/173, 9 December 1988); the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UNGA Res. 40/34, 29 November 1985); the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (UNGA Res. 40/33, 29 November 1985), the Convention on the Rights of the Child (CRC) and UN General Assembly, United Nations Rules for the Protection of Juveniles Deprived of Their Liberty (UNGA Res. 45/113, 14 December 1990); and the Vienna Convention on Consular Relations. This is in addition to the major regional instruments, including the AChHPR, the ACHR, and the ECHR. Arts. 627 ICCPR list the fundamental civil and political rights, with Arts. 616 the most relevant to these questions concerning law enforcement functions.

496 legal rules applicable to pmscs and their personnel

rights and public welfare and safety. The second is that, because of the nature of their duties, such as arrest and detention, law enforcement ofcials are also in a position where they could more readily deprive people of these fundamental rights. That is, police have more power over the population and therefore, also, more capacity to act with impunity unless their conduct is regulated by clear legal rules based on human rights norms. The same issue applies to anyone placed in a position of law enforcement, and possibly even more so to contracted PMSCs or their personnel, who may not be subject to the same public administrative sanctions as members of regular police forces, even though criminal sanctions would still apply to unlawful conduct. Such normative standards are all the more important in emergency situations, or situations where there is not only armed conict, but parallel riots, civil unrest and terrorist or insurgent attacks, when it may be too easy to sacrice individual rights in seeking to regain general law and order. These are the very situations in which PMSCs are most likely to be present and where they could potentially exercise police powers. In addition to the basic human rights instruments, then, the specic normative standards relevant to law enforcement are: the Code of Conduct for Law Enforcement Ofcials adopted by the UN General Assembly in 1979;350 the Basic Principles on the Use of Force and Firearms by Law Enforcement Ofcials, adopted in 1990;351 the Standard Minimum Rules for the Treatment of Prisoners, rst adopted in 1955 and approved by the Economic and Social Council in 1957 and 1977;352 and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment adopted by the UN General Assembly in 1988.353 The rst two listed address the broader principles, especially the use of force in arrest and capture.354 Accordingly these are discussed rst. Then the rules applicable to PMSC personnel undertaking law
350

351

352

353 354

Adopted by General Assembly Resolution 34/169, 17 December 1979 (available, with UN High Commissioner for Human Rights Commentary at: www.unhchr.ch/html/ menu3/b/h_comp42.htm). Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August7 September 1990. Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its Resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977. Adopted by General Assembly Resolution 43/173 of 9 December 1988. Those two documents, albeit non-binding, are authoritative and considered nowadays to form the applicable legal framework for law enforcement activities. It is noteworthy that both the Code of Conduct and the Basic Principles were adopted by consensus.

rules applicable to law enforcement in armed conicts 497

enforcement roles in specic situations are discussed and summarized both the IHL rules and human rights rules. Selected case law from international and regional human rights treaty bodies and courts will help to esh out the intricacies of these rules and the two bodies of law. The present analysis will concentrate upon situations considered the most relevant to PMSCs activities in times of armed conicts, namely the use of force and rearms (in section 4.1) and instances of arrest and capture (in section 4.2), with a brief overview on the treatment in detention.355 The UN Code of Conduct for Law Enforcement Ofcials denes law enforcement ofcials as those who exercise police powers, especially the powers of arrest or detention, including military authorities or state security service in states where they exercise police powers.356 Thus it seems intended to apply to entities that exercise law enforcement powers delegated by states, so that, even if the private contracting of such services was not envisaged in 1979, there is no reason why it would not apply equally to PMSC personnel exercising such police powers today or in the future. The Code of Conduct consists of only eight concisely worded articles, but it includes issues that are central to the present discussion, including the use of force and rearms and treatment of prisoners.357 Its rst substantive article (Article 3) emphasizes that in the performance of their duty law enforcement ofcials show respect and protect human dignity and maintain and uphold the human rights of all persons.358 The main purpose of the Code of Conduct, therefore, is to elucidate the use of coercive powers by law enforcement ofcials in light of these overarching human rights obligations. In particular it states that law enforcement ofcials may use force only when strictly necessary and to the extent required for the performance of their duty.359 The Commentary by the UN Ofce of the High Commissioner for Human Rights notes that this provision emphasizes that the use of force by law enforcement ofcials should be exceptional so that, even though the article implies that law enforcement ofcials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in
355

356 359

It is also noted that a major resource available in regard to each of these areas is the extensive ICRC manual which it uses for training law enforcement ofcials: de Rover, To Serve and to Protect. 357 358 UN Code of Conduct, Art. 1. Ibid., Arts. 5 and 6. Ibid., Art. 2. Ibid., Art. 3.

498 legal rules applicable to pmscs and their personnel

effecting or assisting in lawful arrest of offenders or suspected offenders it remains clear that no force going beyond that may be used. The Commentary further adds that it should be assumed that the notion of proportionality from national principles of law will be respected in interpreting this provision, and that the use of rearms is considered an extreme measure. Thus far the principles applicable to law enforcement ofcials closely resemble the rules on personal self-defence discussed above, although the purposes for which necessary and proportionate force may be used are broader than self-defence, including as they do situations of arrest and establishing public order. However, another important aspect of the code is that it places a positive obligation on individual law enforcement ofcials, not only to respect the law and the code, but also to the best of their capability, prevent and rigorously oppose any violations of them, as well as to report violations.360 It thus moves beyond the negative obligations of self-defence and abstention from breaching human rights, to positive duties that apply to anyone engaged in law enforcement functions, including PMSC personnel if they have these roles. This also relates to the broader obligations of monitoring and reporting which fall on law enforcement agencies (or companies), which in the case of PMSCs, fall on both the companies and their personnel. In contrast with the Code of Conduct, the Basic Principles on the Use of Force and Firearms by Law Enforcement Ofcials concentrate primarily on the use of actual force, and seek to set out more specic minimum rules (which, incidentally, are at one with acceptable limitations to the right to life under Article 2(2) ECHR).361 The Basic Principles are directed rstly at governments, requiring them to adopt and implement rules and regulations on the use of force and rearms against persons by law enforcement ofcials.362 However, given the objective of this document, this injunction clearly applies to situations where states delegate law enforcement to non-government bodies, so that their obligation is to ensure that any person or agency within their jurisdiction or control who is exercising law enforcement
360 361

362

Ibid., Art. 8. Art. 2(2) ECHR: Deprivation of life shall not be regarded as inicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. Basic Principles on the Use of Force and Firearms by Law Enforcement Ofcials, Art. 1.

rules applicable to law enforcement in armed conicts 499

functions on behalf of that state must be subject to regulations consistent with human rights law and these Basic Principles.363 Therefore, it is assumed, for present purposes, that the rules applicable to PMSC personnel exercising law enforcement functions must be consistent with the same regulatory regime as state law enforcement agents.

4 Law enforcement situations in armed conict and occupation

In a peaceful, domestic context, it is not unusual to see private security guards exercising quasi-law-enforcement activities such as patrolling specic zones, conducting preventive surveillance by monitoring data transmitted by security cameras, and organizing security measures to police public events.364 When transposed to a situation where armed conict is occurring, some of those activities, although carried out in a spirit of law enforcement, may lead the security personnel in question to directly participate in hostilities. While we understand the vital need for security in conict situations for the civilian population, and while we acknowledge the role PMSCs may help to play in ensuring that security, it nonetheless remains crucial that the activities of PMSC personnel respect the same rules that would apply to state police forces undertaking the same activities and do not cross the line into direct participation in hostilities. Accordingly, identifying the relevant factors distinguishing law enforcement from military operations under IHL will form an important aspect of our analysis below. In addition, in order to complete the picture of the applicable legal framework, we will sketch the web of rules governing law enforcement activities in armed conict situations.

4.1 Use of force and rearms 4.1.1 Applicable framework governing the use of force and rearms in law enforcement operations From the perspective of IHL, the line between what constitutes a use of force constituting a military operation versus that which is a police operation (or law enforcement) is much
363

364

Ibid., n. 1, which takes up the denition of law enforcement ofcials provided in the Commentary of the UN Code of Conduct. Therefore, it is not the formal status of a person i.e. state police ofcer, military soldier, or state security forces which is determinant for the application ratione personae of the Basic Principles, but rather the effective function carried out by the concerned person, that is to say the police powers vested upon that person by the state. See, for a detailed description of such activities in the United States, Joh, Paradox of Private Policing, esp. pp. 7383.

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easier to draw in the context of international armed conicts than in non-international armed conicts. In IHL of international armed conicts, any use of force against the adversarys combatants is perforce a military operation and subject to the rules on the conduct of hostilities. Uses of force against civilians, unless those civilians are directly participating in hostilities, may only occur in the context of law enforcement, either on the partys own territory or in situations of occupation. As we noted above, specic, detailed rules on the use of force in law enforcement operations carried out against civilians on a belligerents own territory365 or on occupied territory, beyond prohibitions against torture, cruel treatment, murder and physical or moral coercion, are not set out in the Geneva Conventions or Additional Protocol I.366 In non-international armed conicts, force used in the context of an arrest of members of an armed group may legitimately be construed as either a military operation or a law enforcement operation, depending on the circumstances. As the discussion below will show, human rights tribunals, and in particular the ECtHR, do not always clarify whether they conceive a use of force to be a military operation or a police operation.367 As such, it is difcult to determine whether, in their view, different rules on the use of force apply according to whether it is a military operation or a law enforcement operation.368 In some tribunals, IHL and its rules on the conduct of hostilities supersede any human rights principles on proportionality in the use of force when operations involve armed groups.369 This would imply that such actions against armed group members (in a clearly hostile situation) are not law enforcement activities. Cases from the ECtHR are less clear, possibly because from its perspective, the very distinction between military operation and law enforcement operation is not relevant for determining the applicable obligations under human rights law, given that both operations are

365

366 367

368 369

E.g. the internment of civilians of enemy nationality during the Second World War in North America. See Arts. 27, 31, 32 GC IV and Art. 3 common to the four Geneva Conventions. See e.g. Isayeva v. Russia (App. no. 57950/00) (Judgment) ECHR 24 February 2005, paras. 1756; Khatsiyeva and ors v. Russia (App. no. 5108/02) (Judgment) ECHR 17 January 2008; Mansurolu v. Turkey (App. no. 43443/98) (Judgment) ECHR 26 February 2008, paras. 869; Pad v. Turkey (App. no. 60167/00) (Admissibility) ECHR 28 June 2007. Sassli and Olson, The Relationship between IHL and Human Rights Law, p. 612. This is what the Inter-American Commission on Human Rights held in Abella v. Argentina, Case no. 11.137, Report no. 55/97, 18 November 1997, para. 178.

rules applicable to law enforcement in armed conicts 501

presumably governed by the right to life and its related human rights obligations. For example, the Court has suggested that even in a case where the facts regarding the degree of hostile action were contested between the parties, but where it was admitted that at least some of the persons killed were members of an armed group, the government forces should have respected the requirements for the use of force normally applicable to a law enforcement paradigm and been prepared with nonlethal means to subdue the individuals in question.370 Whether the IHL standards in such a context are parallel those applicable in international armed conicts (in which combatants may be attacked until they surrender or are otherwise hors de combat) has been discussed above in the context of the concept of direct participation in hostilities. Even if IHL provides a different answer to this question than IHRL in noninternational armed conicts, as indeed the ICRC indicates,371 it is likely that human rights courts will continue to apply the standard they know when confronted with cases presenting such situations. In situations in which armed group members are not engaged in hostile action, a law enforcement operation using force based on the principles drawn from IHRL is required.372 However, the application of a human rights law paradigm does not settle the question as to whether such acts entail direct participation in hostilities, which is not a concept of IHRL but only of IHL. In our view, because such acts occur against armed groups in the context of armed conict, they involve hostilities. Thus, when PMSCs are charged with law enforcement roles that would entail their conducting police operations against armed group members, this would lead them to directly participate in hostilities. As explained above, under IHL, a state should not give a PMSC such a task (without incorporating it into its armed forces or police forces).373 This principle may not be easy to grasp. Armed groups may be outlawed in domestic law in the territory they are operating and therefore
Mansurolu v. Turkey (App. no. 43443/98) (Judgment) ECHR 26 February 2008, paras. 869. ICRC, Interpretive Guidance on the Notion of DPH, Art. IX. This aspect of the Guidance is controversial, in that some argue that it imposes too high a standard. See esp. W. H. Parks, Part IX of the ICRC Direct Participation in Hostilities Study: No Mandate, No Expertise, and Legally Incorrect (2010) NYU J Intl L and Politics 770830; and in response, N. Melzer, Keeping the Balance between Military Necessity and Humanity (2010) NYU J Intl L and Politics 833, 892913. HRC, Suarez de Guerrero v. Colombia, Comm. no. R.11/45, 31 March 1982, UN Doc. Supp. no. 40 (A37/40). See Ch. 1 above.

370 371

372

373

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also treated as criminal in nature. Nevertheless, operations against them may easily cross the boundary between what is mere law enforcement and what constitutes direct participation in hostilities. This can especially be a problem when PMSCs are patrolling unstable environments as part of the overall security forces in a non-international armed conict. If such PMSC patrols encounter violence by armed groups in noninternational armed conicts, since in any case they should not take action that would lead them to directly participate in hostilities, it would be wise to limit their responses to what is permitted under a self-defence framework, which is in turn in line with law enforcement and human rights law standards, governed by the cornerstone principles of necessity and proportionality. Ideally, PMSC guards should not be contracted to patrol areas subject to attack by armed groups. A trickier situation, however, is one where PMSC security guards are faced with civilians who are directly participating in hostilities but who are not members of armed groups. Would a use of force on the part of PMSCs against such individuals constitute in itself a direct participation in hostilities or would it be merely law enforcement? When it comes to what are unquestionably law enforcement operations involving a use of force against civilians who are not directly participating in hostilities and are not armed group members with a continuous combat function, IHL has little to say beyond fundamental guarantees such as the prohibition of summary execution and torture. Thus, such actions will be governed by domestic law and IHRL. From the perspective of IHRL, the underlying principle is the protection of the right to life, as well as the right to liberty and security.374 The right to life has repeatedly been recognized by treaty bodies as a cornerstone right, the most basic value.375 Its fundamental nature has been concretized within the Basic Principles under Principle 8 which warns that departure therefrom is not warranted by exceptional circumstances
374

375

The right of everyone to life, liberty and security of person, Art. 3 Universal Declaration of Human Rights (UDHR); Art. 6(1) ICCPR right to life and Art. 9(1) (liberty and security); Art. 4(1) ACHR, right to life; Art. 4 AChHPR; Art. 2 ECHR. See e.g.: HRC, General Comment No. 6: The right to life (Article 6), Sixteenth Session, 30 April 1982, para. 1; ACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/ II.116 Doc. 5 rev. 1 corr., 2002, para. 81; ACHPR, Forum of Conscience v. Sierra Leone, no. 223/98, 14th Annual Activity Report 20001, para. 20; Streletz, Kessler and Krenz v. Germany (App. nos. 34044/96, 35532/97 and 44801/98) (Judgment) ECHR 22 March 2001, para. 94; Pretty v. UK (App. no. 2346/02) (Judgment) ECHR 29 April 2002, para. 37.

rules applicable to law enforcement in armed conicts 503

such as internal political instability or public emergency.376 That is, they apply in all situations, including in armed conict and occupation. That conclusion comes as no surprise given the non-derogable nature of the right to life.377 In this sense, human rights treaty bodies have clearly acknowledged the continued application of provisions on the prohibition of arbitrary deprivation of life in contexts of armed conicts.378 One can thus consider the Basic Principles to lay down the legal framework applicable to PMSCs law enforcement activities even in times of armed conict or occupation. Albeit recognized as the most fundamental right, the right to life does not escape the logic of positive obligations incumbent upon states as prescribed by major human rights treaties:379 states not only have an obligation of non-interference, but also have positive obligations to ensure respect of the right to life, and, even more importantly, to prevent violations by their own agents:
The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6(1) [ICCPR] is of paramount
376 377

378

379

Basic Principles, Principle 8. All universal and regional human rights treaties expressly agree that no derogation can be made to the right to life. See Art. 4(2) ICCPR; Art. 15(2) ECHR; Art. 27(2) ACHR. The AChHPR does not provide for a derogation clause in time of emergency as underlined by the African Commission in, inter alia, Commission nationale des droit et liberts v. Chad, Comm. no. 74/92 (1995), para. 21. See e.g. Isayeva, Yusupova and Bazayeva v. Russia (App. nos. 57947/00, 57948/00 and 57949/00) (Judgment) ECHR 24 February 2005, esp. at para. 178 when the Court accepts that the situation that existed in Chechnya at the relevant time called for exceptional measures on behalf of the State in order to regain control over the Republic and to suppress the illegal armed insurgency (i.e. non-international armed conict situation) and that the required measures could presumably include employment of military aviation equipped with heavy combat weapons (see also ibid., para. 181). However, the Court went on to scrutinize the case against the Art. 2 ECHR background. Relying on the same human rights law approach, and thus on the right to life, see also: Khatsiyeva and ors. v. Russia (App. no. 5108/02) (Judgment) ECHR 17 January 2008, para. 134 (context of non-international armed conict in Chechnya); Ergi v. Turkey (App. no. 23818/94) (Judgment) ECHR 28 July 1998, paras. 7781 (context of the armed conict between Turkey and the PKK); Ahmet zkan and ors. v. Turkey (App. no. 21689/93) (Judgment) ECHR 6 April 2004, paras. 3056 (context of the armed conict between the PKK and Turkey); Kakoulli v. Turkey (App. no. 38595/97) (Judgment) ECHR 22 November 2005, para. 114 (context of increased violence along the buffer zone area in Cyprus); Suarez de Guerrero v. Colombia, Comm. no. R.11/45, Views of 31 March 1982, UN Doc. Supp. no. 40 (A/37/40), at 137 (1982) paras. 13.113.3. All human rights treaties make clear that states do not only have negative obligations as regards the rights enshrined therein but also positive obligations to ensure those rights. See in this sense Art. 2 ICCPR; Art. 1 ECHR; Art. 1 ACHR; Art. 1 AChHPR.

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importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.380

Building upon the fundamental treaty provisions delimiting arbitrary deprivation of life, both the Code of Conduct and the Basic Principles thus aim at furthering and ascertaining those positive obligations, by laying down the rules circumscribing resort to lethal force by law enforcement personnel. For instance, the Basic Principles require governments to ensure that arbitrary or abusive use of force and rearms by law enforcement ofcials is punished as a criminal offence.381 But, beyond the duty to repress violations, the principles also stress the dimension of prevention attached to the right to life: Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and rearms against persons by law enforcement ofcials.382 Indeed, proper legislation and regulations are crucial for states to ensure the full respect of the human rights dispositions on the right to life.383 Further, such regulations should be accompanied by appropriate training of law enforcement ofcials, as:
[a]n appropriate legislation would not full its goal if, inter alia, States would not educate and train members of their armed forces and security agencies on principles and rules of human rights protection and on the
380

381 382 383

HRC, General Comment no. 6: The Right to Life (Art. 6), para. 3. See also IACtHR, Pueblo Bello Massacre v. Columbia, Judgment, Series C, no. 140, 31 January 2006, para. 120; IACtHR, Balden-Garca v. Per, Judgment, Series C, no. 147, 6 April 2006, para. 83; IACtHR, Davila v. Peru, Case 10.491, Report no. 41/97, OEA/Ser.L/V/II.95 Doc. 7 rev., at 736 (1997), para. 20. Basic Principles, Principle 7. Basic Principles, Principle 1. See also Principle 11. See e.g. IACtHR, Zambrano Vlez and ors v. Ecuador, Judgment, Series C, no. 166, 4 July 2007, para. 86: Domestic law must establish standards clear enough to regulate the use of lethal force and rearms by members of the State security forces, as well as to guarantee an independent control of its legality. See also: Makaratzis v. Greece (App. no. 50385/99) (Judgment) (GC) ECHR 20 December 2004, paras. 5672; Nachova and ors v. Bulgaria (App. no. 43577/98 and 43579/98) (Judgment) (GC) ECHR 6 July 2005, paras. 96, 97 and 99102; Kakoulli v. Turkey (App. no. 38595/97) (Judgment) ECHR 22 November 2005, para. 109. The importance of the law to protect the right to life is prescribed by all major human rights treaties. See Art. 6(1) ICCPR; Art. 2(1) ECHR; Art. 4(1) ACHR; Art. 1 AChHPR.

rules applicable to law enforcement in armed conicts 505

limits to which the use of weapons by law enforcement ofcials must be subject in all circumstances.384

Given the applicability of the principles to all law enforcement ofcials including members of PMSCs states having resort to PMSCs should ensure that regulations on lethal force are known by PMSCs and integrated into their personnel training programmes accordingly.

4.1.2 The prohibition of arbitrary deprivation of life and its related obligations for PMSCs Concerning the precise scope of the right to life and the use of force and rearms as regulated by human rights law, the fundamental nature of this right means any departure must be carefully circumscribed. Thus, Principle 9 of the Basic Principles makes it clear that intentional lethal use of rearms may only be made when strictly unavoidable in order to protect life.385 The exceptions are indicated as possibilities of last resort, that is to say only when less extreme means are insufcient to achieve these objectives. Those exceptions undoubtedly inuenced by those of the ECHR386 encompass: (i) self-defense or defense of others against the imminent threat of death or serious injury, (ii) the prevention of perpetration of a particularly serious crime involving grave threat to life and (iii) the arrest of a person representing such a danger and resisting [enforcement ofcials] authority, or the prevention of his or her escape. These are then complemented by specic clauses on policing unlawful assemblies (peaceful or violent).387
384

385 386

387

IACtHR, Zambrano Vlez and ors v. Ecuador, Judgment, Series C, no. 166, 4 July 2007, para. 87. On the importance of proper training for ensuring respect of the right to life, see also Erdogan and ors v. Turkey (App. no. 19807/92) (Judgment) ECHR 25 April 2006, at paras. 6587; IACtHR, Caracazo v. Venezuela, Judgment, Series C, no. 95, 29 August 2002, para. 127; Kakoulli v. Turkey (App. no. 38595/97) (Judgment) ECHR 22 November 2005, para. 110. Law enforcement ofcials shall not use rearms against persons except. See Art. 2(2) ECHR, which reads: Deprivation of life shall not be regarded as inicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: a) In defence of any person from unlawful violence; b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c) In action lawfully taken for the purpose of quelling a riot or insurrection. Other human rights treaties do not spell out the exceptions to arbitrary deprivation of life (Art. 6(1) ICCPR; Art. 4(1) ACHR; Art. 4 AChHPR). Human rights courts and treaty bodies have nonetheless identied the same grounds of exception to the prohibition of arbitrary deprivation of life. See e.g. HRC, Baboeram-Adhin and ors v. Suriname, CCPR/C/24/D/ 146/1983 (1985), para. 14.3. Principles 13 and 14 respectively.

506 legal rules applicable to pmscs and their personnel

However, recourse to lethal force does not automatically qualify as lawful deprivation of life if it falls within one of those exceptions. Any resort to lethal force also needs to satisfy the principles of necessity and proportionality: lethal force must be both necessary for preventing threat(s) to life or the danger posed by the concerned person and proportionate to the aim pursued that is, to one of the exceptions listed above. In Surez de Guerrero v. Colombia,388 for example, the HRC applied a requirement of necessity for the use of lethal force by police in personal self-defence or defence of others. It held that, when seven people who were shot at point-blank range by hidden police as they arrived at a house, the force used was not necessary as self-defence or to effect the arrest or prevent the escape of suspected kidnappers.389 The committee acknowledged that Colombia was in a state of civil unrest at the time, but held nevertheless that the deliberate killing of people who were given no warning or chance to surrender and also the law that allowed virtually automatic justication of such actions under emergency powers violated the Article 6 right to life of the International Covenant on Civil and Political Rights (ICCPR). It added that the degree of force was disproportionate. The committee could also have added, as is implied from its analysis, that the victims did not present any imminent threat to the police (or anyone else) that could have justied their killing, which was the main reason why their shooting was unnecessary. In the case of McCann v. UK390 the ECtHR was careful to emphasize that:
The exceptions delineated in paragraph 2 (art. 22) indicate that this provision extends to, but is not concerned exclusively with, intentional killing [It] does not primarily dene instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than absolutely necessary for the achievement of one of the purposes set out in sub-paragraphs a, b or c.391

388

389

390 391

Comm. no. R.11/45, Views of 31 March 1982, UN Doc. Supp. no. 40 (A/37/40), at 137 (1982), para. 13.2. The police had gone to the house expecting to nd a kidnap victim. When they found no one they decided to wait and ambush the suspects. None of those killed had red a weapon, and some were shot from behind: Suarez de Guerrero v. Colombia, nding of fact at paras. 11.411.5; force not necessary at para. 13.2. 27 September 1995, Series A, no. 324. McCann v. UK (App. no. 18984/91) (GC) (1995) Series A, no. 324, para. 148. Emphasis added. In the same vein see the earlier ruling of the European Commission,

rules applicable to law enforcement in armed conicts 507

The Court has thus underscored that Article 2(2) ECHR does not provide a right to kill a would-be attacker, but simply to use the level of force necessary (if in fact force is necessary in the circumstances) to protect ones own, or anothers, life. Thus, the ECtHR has not been reluctant to rule recourse to lethal force to be unnecessary despite furthering a legitimate aim laid down in Article 2(2) ECHR. For instance, in Nachova, the use of lethal force to prevent the escape and facilitate the arrest of two military recruits who deserted a military base without permission prompted the Court to qualify the use of force as excessive as the two persons presented no danger or threat to life or limb.392 In McCann, furthermore, the Court stated that a strict test of necessity was required, and that in particular, the force used must be strictly proportionate to the achievement of the aims set out in Article 2(2).393 The Courts interpretation of the Article 2(2) justications for deprivation of the right to life is thus consistent with the HRCs views regarding the right to life provisions in the ICCPR, although that Covenant does not expressly include these justications. In another case occurring in an unstable environment, the Court found that the use of very powerful weapons (rearms) to disperse even a violent demonstration violated Article 2 ECHR, as this means of force was used in lieu of less forceful methods such as truncheons, riot shields, water cannons, rubber bullets or tear gas, simply because the gendarmes were not equipped with these alternatives (which the Court said they should have been).394 It noted that this level of force was used on the mere suspicion that there were armed terrorists among the demonstrators.395 The Court deemed this level of force, which caused the death of a demonstrator, not to be absolutely necessary within the meaning of Article 2(2).396 On the other hand, in a case involving long range re by
namely Stewart v. UK (App. no. 10044/82) (Decision on Admissibility) ECommHR 10 July 1984, para. 19. Nachova and ors v. Bulgaria (App. nos. 43577/98 and 43579/98) (Judgment) ECHR 6 July 2005, paras. 95 and 107. See also Khatsiyeva and ors v. Russia (App. no. 5108/02) (Judgment) ECHR 17 January 2008, paras. 12940. McCann v. UK, para. 150. Emphasis added. Gulec v. Turkey (App. no. 21593/93) ECHR 1998-IV, paras. 7083. Similarly, in Isayeva, the Court ruled that recourse to indiscriminate weapons was contrary to the primary aim of the operation, that is to protect lives from unlawful violence. Isayeva v. Russia (App. no. 57950/00) (Judgment) ECHR 24 February 2005, para. 191. Gulec v. Turkey, paras. 7083. Ibid. See also Ilhan v. Turkey (App. no. 22277/93) (Judgment) ECHR 27 June 2000, para. 76.

392

393 394

395 396

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police ofcers which ultimately killed two of the people who were ring on them in a public caf, the force was held to be reasonable because the ofcers had issued warnings and others lives were also endangered. The Court held that this use of force in self-defence, or in order to effect a lawful arrest, was justied under Article 2(2). In that case it also emphasized that it was not proved that there was a premeditated plan by the police to kill those ring on them and that their response was made to the actual threat of being red upon.397 Finally, it also appears that a mistaken belief that the other person poses a threat may still permit the self-defence justication, but only if it is also reasonable, or, to borrow the Courts words in the Gulec case, is an honest and plausible belief .398 For its part, the Inter-American Commission and Court on Human Rights (IACHR) has upheld similar standards.399 The commissions jurisprudence helps to provide even more nuanced understanding of the limits of the use of force by law enforcement ofcials in situations involving the defence of property somewhat akin to what PMSCs may encounter in unstable situations. For example, in a case involving workers occupying a factory which police confronted using lethal force, the commission held:
41. The possibility that the workers occupying the estate might have committed a crime against property and the existence of arrest warrants against them could not in themselves justify the use of lethal force, including the use of rearms. The crimes for which orders of arrest were issued did not even necessarily include an element of violence. Nor does the criminal complaint that gave rise to the judicial proceeding, based on

397 398

Yuksel Erdogan and ors v. Turkey (App. no. 57049/00) ECHR 15 February 2007. Gulec v. Turkey. In the same vein, see also McCann v. UK, para. 200: the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Art. 2 of the Convention may be justied under the provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others. [Emphasis added] This view is also supported by Fiona Leverick who, while noting that an honest but unreasonable mistaken belief is currently admissible in English law as a self-defence justication, concludes that this probably does not comply with the ECHR: Leverick, Killing in Self-defence, p. 183. See, inter alia, IACtHR, Montero-Aranguren and ors (Detention Center of Catia) v. Venezuela, Judgment, Series C, no. 150, 5 July 2006, paras. 678 and IACHR, Report on Terrorism and Human Rights, CEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr., 22 October 2002, paras. 8692.

399

rules applicable to law enforcement in armed conicts 509

which the arrest warrants were issued, allege facts involving acts of violence. The use of lethal force merely to carry out orders of arrest was unnecessary and disproportionate. 42. The Commission notes once again the content of the international norms which provide that rearms should not be used against persons, except where there is danger to life. Law enforcement ofcials shall not use rearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape. 43. The Government has offered no evidence to show that the police agents had reason to believe that their lives or the lives of third parties, were in danger. The lethal force that was used, including the use of rearms was therefore disproportionate to the danger that existed 400

It is important to note that the commission held that the belief on the part of the law enforcement agents that the workers in question were in possession of weapons such as grenades did not satisfy the test for self-defence because as a matter of fact, it was not proven that the individuals actually had such weapons. The fact that none of the police responding to the occupation of the factory were red upon was both evidence of a lack of the actual possession of weapons and, one could argue, of the reasonableness of the belief that the workers possessed such weapons and an indication that there was no danger to life of the law enforcement ofcers.401 Another important general principle is the necessity for law enforcement agencies to have non-lethal means of force available for those situations where force is necessary so that even where a dangerous person or group needs to be incapacitated in order that they do not threaten the law enforcement ofcers or the public, this need not be done by the use of lethal force.402 There are two main elements to this issue. The rst is the provision of non-lethal incapacitating weapons, which must in themselves be strictly controlled, and the second is the provision of selfdefensive equipment such as shields, helmets, bullet-proof vests and bullet-proof means of transport.403 These two things together are intended to reduce the usage of lethal force by providing alternatives, and to reduce the actual risk to law enforcement agents, so that the use of force in self-defence is less likely to be necessary. This calls to mind two
400

401

IACtHR, Guatemala, Petition 11/382, Finca La Exacta, Report no. 57/02 [2002] (21 October 2002), paras. 4143. 402 403 Ibid., paras. 4951. Basic Principles, Principles 23. Ibid.

510 legal rules applicable to pmscs and their personnel

of the European cases. In the case of Gulec v. Turkey the gendarmes were not equipped with riot control devices, nor with suitable self-defence equipment404 so that the only means of force at their disposal were lethal weapons.405 The ECtHR regarded this as a failure on the part of those equipping the personnel and organizing the operation.406 Moreover, this principle was reafrmed by the ECtHR with regard to what should probably be understood as a police operation carried out against PKK members. Although it was disputed between the parties whether the PKK members were actually ring back on the Turkish police at the time of the operation (which itself occurred shortly after an attack by some of the same PKK members in a neighbouring village) the Court held that the police should have had at their disposal non-lethal means of subduing the individuals in question.407 Thus, the provision of lesser means of force, as well as self-defence equipment for personnel entering dangerous situations, forms part of the positive obligation to respect the right to life under human rights law. It is important to note, however, that the use of riot-control agents as a method of warfare is prohibited, such that their use in armed conict situations is not straightforward, even in law enforcement situations.408 In applying this obligation to PMSCs in law enforcement, it is rst and foremost for the state to ensure that the company equips its staff with nonlethal weapons. However, individuals must still make the choice of the means of force in any given situation. As illustrated above, it is therefore also important that the law enforcement agency, or PMSC, has strict regulations concerning the circumstances under which personnel are authorized to carry arms,409 guidance on when force is considered necessary, and the protocols for the use of arms (such as warnings).410 In addition, they must conduct proper assessments and background checks on any personnel who will be authorized to carry rearms,411 as well as ensuring that they are properly trained, both in the use of rearms and in the law and the agencys regulations concerning their use.412 The cases described above also raise challenging questions with regard to direct participation in hostilities, even when PMSCs are acting as law enforcement personnel.

404 407 408

409 411

405 406 Gulec v. Turkey, paras. 7083. Ibid. Ibid. Mansurolu v. Turkey, paras. 869. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and their Destruction, Paris 13 January 1993, Arts. I(5) and II(9)(d). 410 Basic Principles, Principle 11(a). Ibid., Principle 11(e). 412 Ibid., Principle 18(a). Ibid., Principles 1820.

rules applicable to law enforcement in armed conicts 511

It also follows that if a PMSC is responsible for training police, security forces, or military personnel who may exercise law enforcement functions, part of their obligation under human rights law (being in this case a fullment of the obligation of the state that has engaged them) is to ensure that law enforcement personnel are trained in accordance with lawful procedures as well as in the relevant technical skills for any weapon they may carry. Finally, the reporting and review procedures prescribed by the Basic Principles warrant consideration given their essential role for ensuring respect and monitoring of the rules on the use of force and rearms.413 This mechanism applies especially in cases where rearms are used by law enforcement agents in the course of their duties, and especially when there is loss of life as a result.414 This serves the dual purpose of making individual agents accountable to the agency (and assisting any criminal investigations that may ensue) and making the agency accountable to the public. When law enforcement activities involving the potential use of lethal force are undertaken by private contractors, such as PMSCs, this mechanism becomes even more important. Without meticulous and contemporaneous reporting of all incidents involving rearms, followed by an independent investigation, private contractors in this situation may act with impunity. The rules on reporting, monitoring and review are therefore partly applicable to the PMSCs and their personnel, and partly applicable to the contracting state. Those most relevant for any PMSC undertaking law enforcement duties are the rules related to contemporaneous and detailed reporting of any incidents involving rearms that cause injury or death. Such reports must then be passed on to the appropriate authority, whether that is the contracting states representative or a state law enforcement agency. It is then up to the state agency to investigate.415 The Basic Principles also deal with another important aspect of reporting, which is reporting of violations by individuals within the agency (or company, as it may be). It provides that there must be no criminal or disciplinary sanctions imposed against whistle-blowers who report violations, and, further, excludes the defence of superior orders for
413 414

415

Basic Principles, Principles 224. Similar rules exist in IHL, but only for POWs (Art. 121 GC III) and civilian internees (Art. 131 GC IV). This coincides, at least in part, with the requirements in the International Code of Conduct for Private Security Providers. See discussion Ch. 5, section E below.

512 legal rules applicable to pmscs and their personnel

law enforcement ofcers who knew that an order to use force and rearms resulting in the death or serious injury of a person was manifestly unlawful and had a reasonable opportunity to refuse to follow it.416 The experience of the PMSC personnel who reported criminal activity by their colleagues in Bosnia where they were dismissed and the alleged protagonists merely repatriated, suggests that there may be room for such accountability within PMSCs. However, such rules and procedures may need to be compelled through state contracts, and backed by criminal or other sanctions that could make both the personnel and the companies criminally liable for failing to prevent, suppress and report criminal conduct.

4.2 Arrest and capture 4.2.1 Applicable legal framework for arrests and captures in times of armed conicts Except for the rules examined above,417 IHL does not regulate the arrest and capture of civilians by law enforcement agents during non-international armed conicts, except that they must be treated humanely. The applicable IHL is greatly inuenced by IHRL and the question to what extent a parallel may be made with the regime applicable in international armed conicts is controversial. In addition, we recall that the arrest of armed group members may constitute direct participation in hostilities and PMSC personnel should not be charged with such tasks. Under human rights law, the terms arrest and capture are to be understood as referring to the rules on deprivation of liberty. Those rules were already enshrined in the Universal Declaration of Human Rights, whose Article 9 proclaimed that [n]o one shall be subjected to arbitrary arrest, detention or exile. As it can be inferred from the numerous human rights treaties, rules on the right to liberty are in the nature of procedural guarantees rather than prohibitions. Indeed, the human rights instruments, rather than banning any deprivation of liberty, aim to ensure that detention, in any form, is not arbitrary or unlawful. Article 9(1) ICCPR states:
Everyone has the right to liberty and security of person. No one shall be subject to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.418
416 418 417 Basic Principles, Principles 25 and 26 respectively. Section E 2. Similar provisions are found in the three major regional human rights instruments: Art. 6 AChHPR; Art. 7 ACHR. Although no mention is made of the term arbitrary, Art. 5(1) ECHR provides the lawful grounds for which a deprivation of liberty can be undertaken,

rules applicable to law enforcement in armed conicts 513

The prohibition of arbitrary detention applies to any form of deprivation of liberty, and is therefore not limited to criminal cases. This was made crystal clear by the HRC, in General Comment no. 8 on the right to liberty and security of persons, when it recognized that Article 9 ICCPR is applicable to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc..419 In this sense, preventive or administrative detention for security reasons, for instance, which is common in times of armed conicts and lawful under IHL under certain conditions420 may fall within the regulatory framework of the prohibition of arbitrary detention:
if so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions, i.e. it must not be arbitrary, and must be based on grounds and procedures established by law (para. 1), information of the reasons must be given (para. 2) and court control of the detention must be available (para. 4) as well as compensation in the case of a breach (para. 5).421

Nevertheless, it has to be underlined that, contrary to the right to life, the right to liberty and the guarantees attached to it can be subject to derogations in times of emergency threatening the life of the nation, as it is often the case in the context of armed conicts.422 However, human rights treaty bodies have clearly emphasized that emergencies threatening the life of the nation do not give ipso facto to states a right to derogate
encompassing lawful detention pursuant to or prior to court proceedings and including other specic circumstances such as preventing the spread of infectious diseases, inter alia. HRC, General Comment No 8: Right to Liberty and Security of Persons (Art. 9), UN Doc. A/37/40, Annex V, 1982, para. 1. See esp. Arts. 42, 43 and 78 GC IV. HRC, General Comment No. 8: Right to Liberty and Security of Persons (Art. 9), A/37/ 40, Annex V, 1982, 4. See, also, with regard to European case law, C. Macken, Preventive Detention and the Right to Personal Liberty and Security under Article 5 ECHR (2006) 10 Intl J Human Rights 195217. The right to liberty is indeed not listed as a non-derogable right in the main human rights treaties derogation provisions. See Art. 4(2) ICCPR; Art. 15(2) ECHR; Art. 27(2) ACHR. One should add however that the AChHPR does not contain a clause permitting states parties to derogate from their conventional obligations during an emergency situation. The African Commission concluded that a civil war is not a valid ground for derogating from the human rights proclaimed in that instrument and therefore all rights are presumably applicable in all circumstances: ACHPR, Commission Nationale des Droits de lHomme et des Liberts v. Chad, Comm. no. 74/92 (1995), para. 21, repr. in (1997) 18 HRLJ 34.

419

420 421

422

514 legal rules applicable to pmscs and their personnel

from all derogable rights/guarantees at will. As such, no state can eliminate a right entirely. Any derogation must be motivated by the exigencies of the situation and be complemented by safeguards, or can otherwise be qualied as unlawful.423 Moreover, the Convention for the Protection of All Persons from Enforced Disappearance is specically devoted to prevent and repress a recurrent practice of armed conicts which is intrinsically linked to arbitrary detention.424 Article 1(2) explicitly conrms that the prohibition of enforced disappearance is plainly applicable in situations of armed conict and other related internal disturbances. According to that article, No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justication for enforced disappearance.425 In sum, the fact that the right to liberty is not listed among the nonderogable rights does not amount to a blank cheque for a total departure therefrom in cases of emergency situations, such as armed conicts. Nor does the delegation of power to arrest or detain to a third entity such as a PMSC give states the opportunity to circumvent their human rights obligations. It is the contracting/territorial states obligation to establish a legal and contractual framework which provides that any such privately contracted agents operate within the law and particularly in accordance with human rights in this regard. The power to arrest and detain is clearly a signicant one, which perhaps few states would delegate to a private organization on their own territory. That being said, many private security companies operating in the domestic context rely on the ability to use force in self-defence

423

424

425

See e.g. HRC, General Comment No 29: Derogations during a State of Emergency (Art. 4), UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, paras. 46; Nuray Sen v. Turkey (App. no. 41478/98) (Judgment) ECHR 17 June 2003, paras. 1729; Brannigan and McBride v. UK (App. nos. 14553/89 and 14554/89) (Judgment) ECHR 26 May 1993, paras. 3674; Aksoy v. Turkey (App. no. 21987/93) (Judgment) ECHR 18 December 1996, para. 78. Enforced disappearance is dened as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the state or by persons or groups of persons acting with the authorization, support or acquiescence of the state, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law (Art. 2). See also Art. 7 of the 1992 Declaration on the Protection of All Persons from Enforced Disappearance; and Art. 10 of 1994 Inter-American Convention on Forced Disappearance of Persons.

rules applicable to law enforcement in armed conicts 515

to detain persons they witness committing offences (i.e. in agrante delicto). Although it is not an ofcially conferred power to arrest, selfdefence laws can be exploited such that non-state agents become something akin to private police in some states.426 Moreover, during armed conict or occupation it may become a question of available human resources, such that states do choose to delegate such powers to PMSCs. If they do, not all the rules applying to arrest by state agencies can be applied to PMSCs, in the sense that it will necessarily remain the role of the state to conduct trials and provide judicial review. On this last point, the applicability of judicial guarantees in times of armed conicts has been endorsed by the HRC. In General Comment no. 29 on States of Emergency, it considers that:
the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offence. The presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State partys decision to derogate from the Covenant.427

Indeed, it is precisely in the special circumstances of armed conict and emergencies that freedom from arbitrary detention and due process of law acquire their greatest importance for ensuring a minimum of respect for the rule of law. According to the HRC, although the right to fair trial is not as such explicitly listed in the covenant among the non-derogable rights, the fact that paragraph (d) of Article 3 common to the Geneva Conventions includes the right to fair trial within its fundamental guarantees underscores its non-derogability at any time, even in armed conict.428 More generally, one cannot dissociate the effective respect for nonderogable rights from the other procedural guarantees attached to the due process of law. Given the importance of those guarantees for securing respect of non-derogable rights (e.g. right to life; right to be free from
426

427

428

D. Sklansky, The Private Police (1999) 46 UCLA L Rev 1165; Joh, Conceptualizing the Private Police; Joh, The Paradox of Private Policing; Joh, The Forgotten Threat. HRC, General Comment no. 29: Derogations during a State of Emergency (Art. 4), UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, para 16. As certain elements of the right to fair trial are explicitly guaranteed under international humanitarian law during armed conict, the Committee nds no justication for derogation from these guarantees during other emergency situations: Ibid.

516 legal rules applicable to pmscs and their personnel

torture and inhuman or degrading treatment), derogation from them can hardly be justied, even in times of armed conicts. This is why the American Convention explicitly acknowledges in Article 27(2) that the judicial guarantees essential for the protection of such [non-derogable] rights have to be applicable even in times of war. The Inter-American Court explains in its advisory opinion OC-8/87 devoted to habeas corpus in emergency situations that:
Here habeas corpus performs a vital role in ensuring that a persons life and physical integrity are respected, in preventing his disappearance or the keeping of his whereabouts secret and in protecting him against torture or other cruel, inhumane, or degrading punishment or treatment.429

It thus concludes that, despite the fact that the right to personal liberty is not mentioned in the list of non-derogable rights, writs of habeas corpus and of amparo are among those judicial remedies that are essential for the protection of various rights whose derogation is prohibited by Article 27(2) and that serve, moreover, to preserve legality in a democratic society.430 Although the ECtHR has not always been as unequivocal as its American counterpart, it afrmed at several occasions:
the importance of Article 5 [on the right to personal liberty] in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individuals right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3, which is intended to minimise the risk of arbitrariness and to ensure the rule of law.431

Accordingly, it reviews the necessity and the proportionality of the restrictions to the right to personal liberty carried out by states parties in situations of war and emergency.432 In line with the position of the HRC and the Inter-American Court, the ECtHR also acknowledges the intermingling of derogable procedural guarantees with substantive nonderogable rights. It thus explains that prompt judicial intervention may
429

430

431 432

IACtHR, Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) ACHR), Advisory Opinion OC-8/87, 30 January 1987, para. 35. Ibid., para. 42. See also IACtHR, Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 ACHR), Advisory Opinion, OC-9/87, 6 October 1987, paras. 2931. Aksoy v. Turkey, para. 76. See e.g. Brannigan and McBride v. UK, para. 58.

rules applicable to law enforcement in armed conicts 517

lead to the detection and prevention of serious ill-treatment, which is prohibited by the Convention in absolute and non-derogable terms.433 While the obligation to ensure judicial or administrative review of detention (other than for POWs) lies on the state even in times of armed conict, PMSC personnel could still be contracted to make arrests and hold detainees. Private military and security contractors may also be responsible for bringing persons before a judge within the specied time or even be in charge of running detention centres. As will be analysed below, the regulatory focus of human rights aims to ensure that any deprivation of liberty is undertaken for a reasonable reason, in a lawful manner, and complemented by procedural guarantees warranting the respect of the fundamental rights of the person deprived of his/her liberty. 4.2.2 The obligations of PMSCs regarding arrest and capture in times of armed conict Part of what prevents an arrest from being arbitrary is that it is made for a lawful reason. The right to liberty is thus violated when a person is arrested on grounds not laid down under domestic law or which are contrary to such law.434 However, it is not enough for deprivation of liberty to be provided for by law. The prohibition of arbitrariness is to be broadly understood and is accordingly not limited to only violations of domestic law. As underlined by the HRC, arbitrariness is not to be equated with against the law, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.435 The same understanding of arbitrariness is shared by the other treaty bodies.436 In other words:
433 434

435

436

Aksoy v. Turkey, para. 76. See e.g. with respect to the HRC: Bolaos v. Ecuador, Comm. no. 238/1987, para. 9; Domukovsky and ors v. Georgia, Comm. nos. 623, 624, 626, 627/1995, para. 18.2. More generally, all human rights treaties underline that any deprivation of liberty must be undertaken in accordance with a procedure prescribed by law. According to the ECtHR, In laying down that any deprivation of liberty must be effected in accordance with a procedure prescribed by law, Art. 5 para. 1 primarily requires any arrest or detention to have a legal basis in domestic law.: Amuur v. France (App. no. 19776/92) ECHR 25 June 1996, para. 50. HRC, Van Alphen v. The Netherlands, Comm. no. 305/1988, Views of 15 August 1990, UN Doc. CPR/C/39/D/305/1988 (1990), para. 5.8. See also HRC, Womah Mukong v. Cameroon, Comm. no. 458/1991, Views of 10 August 1994, UN Doc. CCPR/C/51/D/ 458/1991, para. 9.8; See also de Rover, To Serve and to Protect, p. 225. See e.g.: IACtHR, Gangaram Panday case, Judgment, Series C, no. 16, 21 January 1994, para. 47; ACHPR, Organisation Mondiale Contre La Torture v. Rwanda, Comm.

518 legal rules applicable to pmscs and their personnel

Cases of deprivation of liberty provided for by law must not be manifestly disproportionate, unjust or unpredictable, the specic manner in which an arrest is made must not be discriminatory and must be justied as appropriate and proportionate in view of the circumstances of the case.437

Most detentions carried out in times of armed conict in violation of the right to liberty are obvious cases of arbitrary detention by the police, military or other security organs on the basis of special security legislation. Typical examples are arrests of persons on account of their political views, religions or national or ethnic origin.438 One should add that a detention which may be initially lawful may become arbitrary, for example if it is unduly prolonged or not subject to periodic judicial review.439

437 438

439

nos. 27/89, 46/91, 49/91, 99/93, 1996; ACHPR, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v. Cameroon, Comm. no. 39/90, 1997. de Rover, To Serve and to Protect, p. 225. See e.g. HRC, Mpandanjila and ors v. Zaire, Comm. no. 138/1983, para. 10; Blanco v. Nicaragua, Comm. no. 328/1988, para. 10.3; Mukong v. Cameroon, Comm. no. 458/ 1991, para. 9.8. Except, of course, POWs. The issue of indenite detention was also raised in the context of the US war against terror. In the absence of a US ratication of the rst Protocol to the Covenant, the committee is not competent to examine individual communications, but the UN Working Group on Arbitrary Detention concluded that the preventive detention of suspected terrorists for a prolonged period of time without any criminal charge and judicial review of their detention is arbitrary: Report of the Working Group on Arbitrary Detention, E/CN.4/2003/8 (2002), para. 61. See also: Situation of Detainees at Guantanamo Bay. Report of the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Special Rapporteur on Freedom of Religion or Belief and the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, E/CN.4/2006/120 (2006). See more generally on this issue L. Condorelli and P. de Sena, The Relevance of the Obligations Flowing from the UN Covenant on Civil and Political Rights to US Courts Dealing with Guantanamo Detainees (2004) 2 JICJ 10720; A. de Zayas, Human Rights and Indenite Detention (2005) 87 Intl Rev Red Cross 1538; J. J. Paust, Detention, Judicial Review of Detention and Due Process during Prosecution (2003) 97 ASIL Proceedings 1315; D. L. Sloss, Rasul v. Bush (2004) 98 AJIL 78898; J. Steyn Guantanamo Bay: The Legal Blackhole (2004) 53 ICLQ 115; T. Franck, Criminals, Combatants, or What? An Examination of the Role of Law in Responding to the Threat of Terror (2004) 98 AJIL 6868; D. P. Forsythe, United States Policy toward Enemy Detainees in the War on Terrorism (2006) 28 Human Rights Q 46591. The Belmarsh detainees case is another emblematic instance of administrative detention undertaken in the framework of the war on terror: A and ors v. Secretary of the State for the Home Department; X and ors v. Secretary of the State for the Home Department [2004] UKHL 56, 16 December 2004); A and ors v. UK (App. no. 3455/05) (Judgment) (GC) ECHR 19 February 2009, paras. 18290.

rules applicable to law enforcement in armed conicts 519

The manner in which an arrest is conducted is also important to ensuring it is not arbitrary or otherwise in breach of human rights obligations. The Body of Principles discussed above also species that arrests shall not only be carried out in accordance with the law, but also by competent ofcials or persons authorized for that purpose.440 Arguably the term competent in this principle means more than simply authorized, but also properly trained and capable of conducting arrest and detention that meets all the requirements of legality, necessity and non-arbitrariness.441 This is a central issue for PMSCs, whether they are exercising law enforcement functions or merely training others to do so, as the level of legal knowledge and practical training required is high, particularly as they need to know special rules for particularly vulnerable groups, including juveniles and women. However, requirements concerning lawful deprivation of liberty also go beyond the grounds for and manner in which the deprivation of liberty is effected. Any form of deprivation of liberty implies procedural guarantees with the correlative duties incumbent upon the personnel in charge of arrest and detention, be they state law enforcement or PMSCs in charge of such functions. Those guarantees aim to ensure respect for the most fundamental rights of the detained persons in protecting them from disappearances, torture and ill-treatments as well as securing their right to fair trial and are by consequence crucial as soon as arrest or detention takes place. Given their importance, procedural guarantees cover multiple aspects related to deprivation of liberty. Part of the law enforcement obligation is to inform the arrested person of the reason for his/her arrest and, in the event of an arrest with a view to criminal proceedings, of the charges brought against him/her.442 This duty of notication of the reason for arrest must take place as soon as possible: a few hours after the arrest has been considered to constitute a satisfactory timeframe,443 while

440 442

443

441 Body of Principles, Principle 2. de Rover, To Serve and To Protect, 226. Anyone who is arrested shall be informed at the time of his arrest of the reason for his arrest and shall be promptly informed of any charges against him, Body of Principles, Principle 10. See also Art. 5(2) ECHR; Art. 9(2) ICCPR; Art. 7(4) ACHR; ACHPR, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2001, M(2)(a). Fox, Campbell and Hartley v. UK (App. Nos. 12244/86, 12245/86 and 12383/86) (Judgment) ECHR 30 August 1990, paras. 404; Ireland v. UK (App. no. 5310/71) (Judgment) ECHR 18 January 1978, paras. 197201; Van der Leer v. The Netherlands (App. no. 11509/ 05) (Judgment) ECHR 12 February 1990, paras. 2531; Murray v. UK (App. no. 14310/88)

520 legal rules applicable to pmscs and their personnel

notication on the charges may require more time due to the need to collect evidence.444 Those notications remain crucial in order to give the arrested person a possibility to challenge the lawfulness of his arrest and detention (i.e. via habeas corpus proceedings),445 and to further defend himself properly in case of criminal proceedings, even in times of emergency.446 While states have to ensure that persons detained with a view to criminal proceedings are brought promptly before a judicial authority, certain aspects owing from this obligation should also be respected by PMSCs, as the latter should bring those detainees before a judge within the time specied in the relevant domestic law. If they do not have access to the channels to bring someone before a judge, they must transfer the individuals to competent authorities. This is an important aspect of the human rights instruments447 ensuring, inter alia, that the deprivation of
(Judgment) ECHR 28 October 1994, paras. 767; Saadi v. UK (App. no. 13229/03) (Judgment) ECHR 11 July 2006, paras. 4856 (conrmed by Grand Chamber 29 January 2008, paras. 8185); Grant v. Jamaica, Comm. no. 597/1994, Views of 22 March 1996, UN Doc. CCPR/C/56/D/597/1994 (1996), para. 8.1; IACtHR, Juan Humberto Sanchez v. Honduras, Judgment, Series C, no. 99, 7 June 2003, paras. 7188. See IACHR, McKenzie and ors. v. Jamaica, Report no. 41/00, Cases 12.023 (etc.), 13 April 2000, paras. 24851 where the Inter-American Commission on Human Rights considered a three-day period to be acceptable for the notication of charges. See also Freemantle v. Jamaica, Comm. no. 625/1995, Views of 28 April 2000, UN Doc. CCPR/C/ 68/D/625/1995, para. 7.5 (where the committee considered that the 4-day period before the notication of charges did not violate Art. 9 ICCPR); Filastre v. Bolivia, Comm. no. 336/1988, Views of 6 November 1991, UN Doc. CCPR/C/43/D/336/1988, para. 6.4 (where the committee found a violation of Art. 9 ICCPR due to the ten-day period during which no notication of charges was undertaken). Otherwise there would be no possibility to challenge an unlawful arrest or detention. One should recall that the right to habeas corpus is a cardinal guarantee against arbitrary deprivation of liberty, as recognized by all human rights instruments. Art. 9(4) ICCPR; Art. 5(4) ECHR; Art. 7(6) ACHR. See also UN Convention for the Protection of all Persons from Enforced Disappearances, Art. 17(2)(f); and UN Body of Principles, Principle 32. Although the AChHPR makes no explicit mention of the right to habeas corpus in Art. 6 (governing detention), Art. 7 protects the right to a fair trial, and other related guarantees have been specied in the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, M(4) and M(5). HRC, Caldas v. Uruguay, Comm. no. 43/1979, Views of 21 July 1983, UN Doc. Supp. no. 40 (A/38/40) paras. 13.2 and 14; see also Kurbanov v. Tajikistan, Comm. no. 1096/2002, Views of 12 November 2003, UN Doc. CCPR/C/79/D/1096/2003. Art. 9(3) ICCPR; Art. 7(5) ACHR; Art. 5(3) ECHR and Arts. 10, 11, and 37 of the Body of Principles. This rule is not specied in the AChHPR, but was later specied in ACHPR, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2001, M(3)(B). See also HRC, General Comment no. 8: Right to Liberty and Security of Persons (Art. 9), 30 June 1982, para. 3.

444

445

446

447

rules applicable to law enforcement in armed conicts 521

liberty has been conducted in a lawful manner, in full respect of the rights of the detained person and for determining whether the person should be released or kept in detention on remand pending trial.448 Given the importance of this requirement for securing the rights of the detained person, the usual timeframe is between twenty-four and forty-eight hours,449 but it can be extended during conict or civil unrest.450 It is essential that clear limits are placed on this, and that the contracted agents are required to, and do, comply. In the Nuray Sen case, the ECtHR found that the period of eleven days before Nuray Sen was brought before a judicial ofcer was not strictly required by the exigencies of the situation, despite the emergency context of the ght of Turkey against the PKK.451 A similar nding was made by the Inter-American Court of Human Rights which deemed both the special delay of fteen days adopted under the state of emergency and the actual delay of thirty-six days to be contrary to Article 7(5) of the American Convention on Human Rights (ACHR).452
448

See e.g. Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa, M(3)(B) specifying the purposes of such a review, which include to: (i) assess whether sufcient legal reason exists for the arrest; (ii) assess whether detention before trial is necessary; (iii) determine whether the detainee should be released from custody, and the conditions, if any, for such release; (iv) safeguard the well-being of the detainee; (v) prevent violations of the detainees fundamental rights; (vi) give the detainee the opportunity to challenge the lawfulness of his or her detention and to secure release if the arrest or detention violates his or her rights. de Rover, To Serve and To Protect, p. 227. HRC, General Comment no. 8: Right to Liberty and Security of Persons (Art. 9), 20 June 1982, para. 2; Freemantle v. Jamaica, para. 7.4; Brogan and ors v. UK (App. nos. 11209/84, 11234/84 and 11266/84) (Judgment) ECHR 29 November 1988, paras. 4954; calan v. Turkey (App. no. 46221/99) (Judgment) ECHR 21 May 2005, paras. 1005; Grant v. Jamaica, Comm. No 597/1994, Views of 22 March 1996, UN Doc. CCPR/C/56/D/597/1994, para. 8.2; Stephens v. Jamaica, Comm. no. 373/1989, Views of 18 October 1995, UN Doc. CCPR/C/55/D/ 373/1989, para. 9.6; Marieta Tern Jijn v. Ecuador, Comm. no. 277/1988, Views of 8 April 1992, UN Doc. CCPR/C/44/D/277/1988, para. 5.3.; IACHR, McKenzie and ors v. Jamaica, Report no 41/00, 100, paras. 24851. See e.g. Brannigan and McBride v. UK, paras. 3674, esp. 6264; Aksoy v. Turkey, para. 83. Nuray Sen v. Turkey (App. no. 41478/98) (Judgment) ECHR 17 June 2003, paras. 1729. In the Brannigan and McBride case, for instance, the Court found that, even though a seven-day delay was introduced by the British derogation, the UK was not in breach of its human rights obligations as existing safeguards preserved the rights of the detained person, namely the right to habeas corpus and access to a lawyer after forty-eight hours: paras. 3674, esp. 624. IACtHR, Castillo Petruzzi and ors v. Peru, Judgment, Series C, no. 52, 30 May 1999, paras. 10412.

449

450

451

452

522 legal rules applicable to pmscs and their personnel

In the event that PMSC personnel are in charge of running detention facilities (other than POW and internment camps, which would be unlawful under IHL), the rules on treatment in detention should also be respected by them. While an in-depth analysis of the human rights framework applicable in the context of detention is not conceivable here, the importance of those rules for securing the rights of the detainees against torture, ill-treatment, disappearance and for ensuring fair trial dictates some consideration. First, the duty of registration of any detained person though not explicitly required by general human rights instruments has been acknowledged as an essential guarantee against disappearances.453 Even though this obligation is addressed to states, one may arguably consider it relevant to the extent that PMSCs are charged with the supervision of detainees. Moreover, any person deprived of their liberty has the right to notify their relatives of their detention,454 to be examined regularly by a doctor 455 and to have access to a lawyer.456 PMSC personnel will have to respect the right to condential communication with a lawyer, which can be within sight, but not within the hearing of a law enforcement ofcial.457 The
453

454

455

456

457

Cakici v. Turkey (App. no. 23657/94) (Judgment) ECHR 8 July 1999, para. 105. See also International Convention for the Protection of All Persons from Enforced Disappearance, Art. 17(3). UN Body of Principles, Principle 16; HRC, General Comment No. 21: Replaces General Comment 9 Concerning Humane Treatment of Persons Deprived of their Liberty (Art. 10), 10 April 1992, para. 12; International Convention for the Protection of all Persons from Enforced Disappearance, Art. 17; Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa, M(2)(c). The right to notify someone also implies the right to contact his/her consulate if the arrested/detained person is a foreign national. See Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261, Art. 36(1)(b). See e.g. First UN Congress on the Prevention of Crime and the Treatment of Offenders, UN Standard Minimum Rules for the Treatment of Prisoners, 1955, paras. 2425; Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa, M(2)(a); UN Body of Principles, Principle 24. Access to a lawyer ensures that the person will not be subjected to torture or illtreatments and will benet from a fair trial. See, in this sense, UN Body of Principles, Principles 17 and 18; HRC, General Comment no. 20, replaces General Comment no. 7: Concerning Prohibition of Torture and Cruel Treatment or Punishment (Art. 7), 10 March 1992, para. 11; Brannigan and McBride v. UK, paras. 615; Salduz v. Turkey (App. no. 36391/92) (Judgment) ECHR 27 November 2005, esp. para. 51; Magee v. UK (App. no. 28135/95) (Judgment) ECHR 6 June 2000, esp. paras. 446. UN Body of Principles, Principle 18(4); Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa, I; HRC, General Comment No 13: Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law (Art. 14), 13 April 1984, para. 9. See also e.g. calan v. Turkey,

rules applicable to law enforcement in armed conicts 523

regime of interrogation is also carefully regulated so as to avoid the risk of torture or other inhumane or degrading treatment, as exemplied by the UN Body of Principles.458 It restates that confession under coercion or violence or threat thereof is prohibited (Principle 21) and lays down safeguards against such treatment (i.e. duration of the interrogation, identity of the ofcials conducting interrogations, obligation to record interrogations etc.) (Principle 23). Furthermore, as illustrated above, Principle 24 establishes the importance of a medical examination from the beginning of the deprivation of liberty, in order to determine the detainees initial state of health, and on a regular basis (especially after interrogations) with the view to be able to identify any potential mistreatment. In the spirit of the ICRCs right to visit certain categories of persons, which is enshrined in the Geneva Conventions,459 the human rights framework prescribes visiting mechanisms to places of detention on a regular basis:
In order to supervise the strict observance of relevant laws and regulations, places of detention shall be visited regularly by qualied and experienced persons appointed by, and responsible to, a competent authority distinct from the authority directly in charge of the administration of the place of detention or imprisonment.460

Most notably, the European Committee for the Prevention of Torture461 and the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment462 have both the right

458 459

460

461

462

paras. 1323; Erdem v. Germany (App. no. 38321/97) (Judgment) ECHR 5 July 2001, paras. 5070, esp. para. 65; Istratii v. Moldova (App. nos. 8721/05, 8705/05 and 8742/05) (Judgment) ECHR 27 March 2007, paras. 85101. Admittedly, this begs the question whether PMSCs are in fact law enforcement ofcials. UN Body of Principles. See, inter alia, Art. 126 GC III; Art. 143 GC IV; and Art. 3 common to the 1949 Geneva Conventions. UN Body of Principles, Principle 29. See also International Convention for the Protection of all Persons from Enforced Disappearances, Art. 17; HRC, General Comment No. 21: Humane Treatment of Persons Deprived of their Liberty (Art. 10), 1992, paras. 67. The committee has been mandated by the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, by means of visits, [to] examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment (Art. 1). The subcommittee was established by virtue of Art. 2(1) OP-CAT and is complemented by the obligation for states parties to establish national preventive mechanisms for visiting and monitoring places of detention (see Part IV of OP-CAT).

524 legal rules applicable to pmscs and their personnel

to visit places of detention in states parties in order to ensure respect of, respectively, the European Convention on the Prevention of Torture and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In this regard there is clear complementarity between the IHL and IHRL mechanisms.463

E Fleshing out the content of certain IHL obligations for civilians

We have noted that there may be room for debate on whether all of the obligations in IHL apply directly to all individuals who nd themselves in a situation of armed conict, or whether it is only the criminalized rules that have such direct application to individuals.464 Even if some rules are not directly applicable to PMSC personnel, the fact that the state hiring them is bound by them means that in some cases, the rules must in effect be implemented by the PMSC on behalf of the state. It is worth considering whether some rules may need further elaboration in order to be implemented by PMSCs in a way that complies with IHL. Below, we will consider rules of IHL that govern many of the activities of PMSCs that do not necessarily involve a use of force in their execution.

Meeting the standards and conditions of internment and detention for POWs and civilians

PMSCs are frequently involved in the construction of military bases and other logistics operations. They have also been known to play a role in detention facilities, whether as guards, catering staff, translators or maintenance workers.465 This role has taken on signicant dimensions at the domestic level within some states that allow for private prisons and may be seen as a viable eld for expansion for PMSCs in conict zones abroad, especially as roles involving the use of force become more controversial.466 Consequently, even though many of these roles do not
463

464 465

466

E. Delaplace and M. Pollard, Visits by Human Rights Mechanisms as a Means of Greater Protection for Persons Deprived of their Liberty (2005) 87 Intl Rev Red Cross 6982. See Ch. 3 above for a detailed discussion. The most well-known was the role of CACI and Titan employees as translators and interrogators in Abu Ghraib prison in Iraq. The US government put out a call for tenders on the new prison it has announced that it is building in Afghanistan in 200910. While most would no longer qualify that conict as international in nature, such that the standards of Geneva Conventions III and IV may not be directly applicable, the simple fact that it is occurring illustrates the relevance

eshing out ihl obligations for civilians

525

involve a use of force, the Geneva Conventions nevertheless closely govern these activities and set standards that are important for the protection, health and safety of prisoners and detainees. When it comes to POWs, some of the standards are phrased in a manner that allows for an objective implementation and assessment, such as Article 26 GC III, which requires that basic daily food rations shall be sufcient in quantity, quality and variety to keep prisoners of war in good health and to prevent loss of weight or the development of nutritional deciencies.467 Other standards and measures for the protection of POWs, however, are phrased in such a way as to relate to the equivalent standards for the armed forces of the detaining power. For example, Prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area;468 and the transfer of prisoners of war shall always be effected humanely and in conditions not less favourable than those under which the forces of the Detaining Power are transferred.469 In addition, no prisoner of war shall be assigned to labour which would be looked upon as humiliating for a member of the Detaining Powers own forces.470 These standards are normally easy for a party to measure because it knows its own conditions and culture in great detail and knows instinctively whether what it is providing is inferior to what its own forces enjoy.471 However, it cannot be presumed that a PMSC will be as intimately acquainted with the treatment and conditions of members of the forces of the detaining power and it therefore cannot be surmised that it will automatically implement the equivalent standards and conditions. Consequently, a PMSC contracted to perform tasks in

467

468 469

470 471

of this exercise. The call for tenders can be found at www.fbo.gov/index?s=opportunity &mode=form&id=7ca383ddcd24b58df70ccdbff27f1935&tab=core &_cview=0. Art. 26 GC III, para. 1. For a recent interpretation by a Claims Commission as to what may or may not satisfy these criteria, see Eritrea-Ethiopia Claims Commission, Partial Award Prisoners of War Eritreas Claim 17 (1 July 2003), paras. 10618. Art. 25 GC III, para. 1. Art. 46 GC III, para. 2. In addition, evacuation of POWs from combat zones must be effected in conditions similar to those for the forces of the Detaining Power in their changes of station. Art. 20. Art. 52 GC III, para. 2. In situations where general conditions are so poor as to make it uncomfortable also for the detaining powers forces, the Eritrea-Ethiopia Claims Commission held that it is incumbent on the detaining power to do all within its ability to make transfers (etc.) as humane as possible. Eritrea-Ethiopia Claims Commission, Partial Award Prisoners of War Ethiopias Claim 4 (1 July 2003), para. 137.

526 legal rules applicable to pmscs and their personnel

these areas must be closely and scrupulously supervised by the detaining power to ensure the standards are equivalent. Merely stating in a contract that they must be equivalent would be insufcient to ensure the respect of the standards as it cannot be presumed that a PMSC, even composed in part of former armed forces members, will know those standards. Of course, if the same PMSC builds the facilities for the armed forces and the detention facilities, one can presume that that rm would be alert to the standards of the detaining power. The fact that PMSCs operate as prot-making enterprises, which will normally seek to reduce costs so as to maximize return, may also lead one to question whether such an approach will automatically lead to standards that are somehow incompatible with the requirements of IHL.472 Limited resources will certainly not excuse a state from liability for failing to meet its obligations under the conventions;473 in our view, the primary responsibility indeed falls to the state to ensure that it is not awarding contracts to unrealistically low bids by private companies. Standards demanding conditions equivalent to those of the detaining power may thus not be knowingly underfunded.474 That being said, in our view there is no prima facie or a priori reason why a for-prot enterprise could not satisfy the requirements of IHL in this domain. It should simply be noted that the Eritrea-Ethiopia Claims Commission stated that scarcity of nances and infrastructure cannot excuse a failure to grant the minimum standard of medical care required by international humanitarian law.475 We note also with respect to PMSCs operating in detention facilities that PMSCs should be made aware that, as they are not ofcers of the armed forces, they cannot require POWs to salute them.476
472

473

474

475

Indeed, this normal feature of business may seem to be exacerbated by the fact that the usual way to award contracts is to favour the lowest bidder and therefore to cut costs as much as possible. The Montreux Document recommends that the lowest price should not be the primary criteria for awarding contracts (Part II, point 5); however, that recommendation may not be realistic or in harmony with most states policies regarding tendering and awarding of contracts. The Eritrea-Ethiopia Claims Commission noted, with apparent approval, that Neither Party has sought to avoid liability by arguing that its limited resources and the difcult environmental and logistical conditions confronting those charged with establishing and administering POW camps could justify any condition within them that did in fact endanger the health of prisoners. Ethiopias Claim 4, para. 89; Eritreas Claim 17, para. 89. This is especially the case with regard to POWs since Art. 12 GC III expressly stipulates that a detaining power always retains ultimate responsibility for the treatment of POWs, even if it transfers them lawfully to another power. 476 Ethiopias Claim 4, para. 125. Art. 39 GC III.

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When it comes to civilian internees, the requisite standards and conditions for facilities, medical and health services are spelled out in detail in Geneva Convention IV and, in our view, do not require any further elaboration in order to be implemented by PMSCs.477 We recall, however, that deaths and serious injury of internees must be immediately followed by an ofcial enquiry by the Detaining Power.478 Should an interned person suffer death or serious injury in a detention/internment facility in which PMSCs play a role, the PMSC in question nor any other PMSC in its stead may not investigate itself as a sufcient enquiry. The need to respect the extensive and detailed record-keeping rules in all the Geneva Conventions must be impressed on any PMSC having a role where it comes into direct administrative contact with POWs or protected persons.479 Even though camp commanders remain ultimately responsible for such record-keeping, PMSCs having roles in the camps need to be made aware of, for example, the rules on conscation of property and so forth.

Fundamental rights and freedoms

Under IHL, there are a number of absolute prohibitions regarding the treatment of persons protected by the Geneva Conventions and Protocols. For example, carrying out reprisals against protected persons or property480 or conducting scientic experiments on persons481 are
477

478 479

480 481

E.g. Art. 85 GC IV sets out objective standards for the physical conditions of the camp, stipulating (in part), The premises shall be fully protected from dampness, adequately heated and lighted, in particular between dusk and lights out. The sleeping quarters shall be sufciently spacious and well ventilated and the internees shall have suitable bedding and sufcient blankets, account being taken of the climate, and the age, sex and the health of the internees. Art. 85 goes on to specify the required level of cleanliness, provision of soap, etc. As the standards are objective and detailed and not linked to or dependent on conditions of the detaining power elsewhere, there is no objective reason a PMSC could not satisfactorily implement them. Many other articles ll out this regime, especially Arts. 8392 GC IV. Art. 131 GC IV. Records of disciplinary punishments (Art. 123 GC IV) and lists of labour detachments (Art. 96 GC IV), for example, must be kept by camp commanders, who must be ofcers of the armed forces of a party to the conict (Art. 123 GC IV); as such, PMSCs are not directly concerned by those obligations. On the other hand, there is an obligation to make an ofcial record of death (Art. 129 GC IV) and obligations to issue receipts when taking monies, valuables and any identication documents of internees (Art. 97 GC IV). Art. 13 GC III; Art. 33(3) GC IV. Art. 13 GC III; Art. 27 GC IV.

528 legal rules applicable to pmscs and their personnel

absolutely prohibited by IHL. Collective punishment is prohibited,482 as are murder, torture, rape, sexual assault, enslavement, hostage-taking, mutilation and threats to commit any of those acts.483 By and large, these prohibitions are the same for POWs, persons hors de combat, and civilian protected persons, and do not require any translation (or adaptation) in order to be fully respected by PMSCs. When it comes to the potential involvement of PMSCs in acts that may constitute torture, it is nevertheless important to underscore that IHL does not require the participation, complicity or awareness of a public ofcial of the acts in question in order for such acts to constitute torture.484 This is an important difference from the UN Convention against Torture, under which the complicity of a public ofcial is necessary for acts to constitute torture.485 One has to add, however, that under general human rights instruments, treaty bodies clearly acknowledge that acts committed by non-state actors fall under the prohibition of torture.486

482 483

484

485

486

Art. 87(3) GC III; Art. 33(1) GC IV; Art. 75 AP I. See Art. 75 AP I, Art. 4 AP II as well as Art. 3 common to the Geneva Conventions. The prohibitions in Art. 75 AP I, which is widely considered to constitute customary international law, apply to protect all persons who nd themselves in a situation of international armed conict and who are in the power of a party to that conict, thus extending beyond protected persons. Note also that many of these carry broad denitions and that use of the term rape here is illustrative of the more comprehensive outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault contained in Art. 75(2)(b) AP I. See Prosecutor v. Furundija (Trial Judgment) IT-9517/1-T (10 December 1998), paras. 13464 (afrmed on appeal), Prosecutor v. Furundija (Appeal Judgment) IT-9517/1-A (21 July 2000), para. 111, which held (obiter) that the complicity of a public ofcial is an element of torture in armed conicts, but which was subsequently reversed as a condition by the ICTY Appeals Chamber in Prosecutor v. Kunarac (Appeal Judgment) IT-96 23 (12 June 2002), paras. 1468 (conrming the Trial Chambers interpretation in Kunarac). The Kunarac interpretation was conrmed by the ICTY Appeals Chamber in Prosecutor v. Kvoka (Appeal Judgment) IT-9830/1-A (28 February 2005), para. 284. See also C. Burchard, Torture in the Jurisprudence of the Ad Hoc Tribunals (2008) 6 JICJ 15982, 174 and K. Roberts, The Contribution of the ICTY to the Grave Breaches Regime (2009) 7 JICJ 743, 7578. Furthermore, we note that Art. 32 GC IV prohibits any other measures of brutality whether applied by civilian or military agents. UN Convention against Torture, Art. 1(1) denes certain acts as constituting torture when such pain or suffering is inicted by or at the instigation of or with the consent or acquiescence of a public ofcial or other person acting in an ofcial capacity. Art. 1(2) of the UN Convention adds nevertheless that its denition is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. See e.g. HRC, General Comment no. 20, para. 2; HLR v. France (App. no. 24573/94) ECHR 1997-III 758, para. 40.

eshing out ihl obligations for civilians

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Recruitment

PMSCs are very frequently involved in recruiting and training military forces, including in situations where armed conicts and even military occupations are ongoing.487 In carrying out this activity, and, moreover, when recruiting local staff to work for PMSCs themselves in securityrelated tasks,488 PMSCs need to be especially attentive to the prohibition against compelling protected persons to serve in the enemy armed forces.489 Specically, Article 51 GC IV states that an occupying power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted.490 This prohibition is phrased sufciently broadly to capture more than bald-faced compulsion and demands consideration of the more subtle tactics that may fall within its purview.491 In the context of theatres of conict, where unemployment tends to be high, and, in addition, where trafcking of individuals to work as contractors has been ofcially reported as occurring,492 it is imperative that PMSCs be made aware of this prohibition and their activities be
487

488

489

490 491

492

Consider e.g. the contract worth US$48 million awarded to Vinnell Corporation in August 2003 to train nine battalions for the new Iraqi Army. We note, however, that according to available information, it seems that the recruiting in that case was handled at least in part by the armed forces of Coalition members. See D. P. Wright and T. R. Reese, On Point II: Transition to the New Campaign: The United States Army in Operation Iraqi Freedom May 2003January 2005 (Defense Department, US Army Combined Arms Center, 2008), esp. Ch. 11, Training the Iraqi Security Forces, pp. 427533, esp. at pp. 4356. In particular, those which may be considered to have combatant status under Art. 4A(2) of GC III. The fact that PMSCs rely heavily on local hirees is well-known. What is not easy to establish from ofcial documents, however, is how many local hirees conduct this kind of security work for these types of rms. Art. 23(2) of the Hague Regulations and, for occupied territories, Art. 51 GC IV. Compelling a person to serve in the armed forces of a hostile power in fact constitutes a grave breach of Convention IV: Art. 147 GC IV. Emphasis added. The Commentary to Art. 51 emphasizes that the broadening of the absolute prohibition (as compared to the prohibition in the 1907 Hague Regulations) was done intentionally in reaction to widespread disrespect of the prohibition during the Second World War. Pictet, Commentary GC IV, pp. 2923. US Department of State, Trafcking in Persons Report 2006, www.state.gov/documents/organization/66086.pdf, p. 19. Obviously, trafcked individuals, while compelled, are most likely by denition not nationals of the occupied power and therefore not protected as such by this provision. However, the existence of trafcking indicates that some PMSCs have resorted to coercive methods to obtain staff and is thus illustrative of the potential problem.

530 legal rules applicable to pmscs and their personnel

closely monitored. In addition, we note that these jobs can be very dangerous for local nationals, as many have been subject to torture and killing by militias for collaborating with the occupying forces, in addition to the dangers arising from their proximity to military objectives in such roles.

Providing aid

The principal role of PMSCs with regard to the provision of medical aid and the distribution of the necessities of life to civilians tends to involve providing security for convoys and personnel. In line with what their name implies, it will usually concern the security aspect of aid provision. We will deal with the implications of PMSCs providing security to humanitarian aid as well as the rules relating to aid itself, should PMSCs become involved as direct providers. In international armed conicts, the parties to the conict are obliged to accept medical relief supplies not only for civilians but also for combatants. When it comes to non-medical items, the obligation is narrower: parties must accept food and clothing when they are destined for certain vulnerable civilian groups in particular, children under fteen, expectant mothers and, in the rather clumsy wording of Convention IV, maternity cases.493 Beyond that, parties to the conict should consent to the provision of humanitarian assistance for the whole civilian population if existing supplies are inadequate and if the relief is provided impartially and without adverse distinction.494 Occupying powers are responsible for providing food and medical supplies to the civilian population in the occupied territory, but if they are unable to do so, they are under an obligation to accept relief schemes.495 In non-international armed conicts, humanitarian and impartial relief actions to provide supplies essential for the survival of the civilian population should be

493 494

495

Art. 23 GC IV. Art. 70(1) AP I extends the provision of relief to the whole civilian population but subjects it to the consent of the parties. Distinction may be made only on the basis of need, not on any other criteria (such as nationality etc.). However, it is considered that if the conditions in the article are met, a party should not withhold its consent. See Jelena Pejic, The Right to Food in Situations of Armed Conict: The Legal Framework (2001) 83 Intl Rev Red Cross 1097109, 1103. Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, pp. 81529. Arts. 55 and 59 GC IV.

eshing out ihl obligations for civilians

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accepted by the parties to the conict.496 The crucial element leading to parties being in certain circumstances and to a certain extent more or less obligated to accept relief is that it must be humanitarian in character, impartial and provided without discrimination.497 In this case, then, it is not so much a question as to whether IHL prima facie prohibits aid organizations from using PMSCs to guard their convoys or stocks or to protect persons distributing aid, but whether their use offends the requirements for relief providers such that parties to conicts would not be obliged to accept such aid. One may also query whether the providers of aid would lose the protection of IHL merely because they have armed guards. As such, we will show that the principles of humanitarian aid or relief provision do not function as direct restraints on the use of PMSCs. However, since failure to comply with them would seriously impede such organizations from carrying out their mandates since IHL only requires parties to accept such aid it is necessary to enquire whether the use of PMSCs is consonant with those principles. Assuming that the aid itself is being provided impartially and is not beneting only one party,498 the rst question is whether the mere fact of having armed guards protecting the convoy, warehouse or distribution points infringes the requirements of impartiality, non-discrimination and humanitarianism. The short answer to this question is that it does not. IHL foresees that medical personnel may be armed or use arms in their own defence and that this does not deprive them of the protection of Geneva Convention I (which is that they may in no circumstances be attacked).499
496

497

498

499

Again, Art. 18 AP II subjects the provision of humanitarian assistance to the consent of the High Contracting Party (thus, only the state party to the conict) but it is considered that such consent may not be refused without good grounds since refusal would be tantamount to using starvation as a method of combat, which violates Art. 14 AP II. Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, para. 4885. The duty to accept humanitarian relief as an obligation, with no mention of consent, was found to be a rule of customary IHL in the ICRC study. See Rule 55 CIHL in Henckaerts and Doswald-Beck, Customary International Humanitarian Law. Again, while consent is formally required, there is a sense that parties may not refuse aid provided the conditions of need exist and provided that the aid fulls these criteria. See e.g. UNSC Res. 1502, 26 August 2003, UN Doc. S/RES/1502. Many cite the hijacking of aid in Somalia by warlords as the clearest example of impartial aid not being provided successfully: R. A. Stoffels, Legal Regulation of Humanitarian Assistance in Armed Conict: Achievements and Gaps (2004) 86 Intl Rev Red Cross 51554, 539. Art. 22(1) GC I. These rules are necessary for medical units since they are normally formed out of parts of the armed forces of a party to the conict and without such special protection, would be subject to attack as members of the armed forces. However,

532 legal rules applicable to pmscs and their personnel

In addition, medical personnel may be protected by sentries or by an escort.500 By extension, the presence of armed guards does not in and of itself contravene the legal requirements of the nature and quality of civilian relief such that the aid and its providers lose the protection of the conventions. At the next level, we must consider the hypothetical situation where a convoy is attacked and armed guards of a PMSC ght back: would that constitute direct participation in hostilities such that it compromises or threatens the impartiality of the aid?501 As for all IHL, the answer depends on the specic facts in a given situation. Nonetheless, a few general comments may be made to guide the analysis. First, most attacks on aid providers are committed by criminals, not by armed groups.502 Defending against criminal attacks by bandits or criminals does not constitute direct participation in hostilities.503 Secondly, in order for a person to be directly participating in hostilities, their act must have a belligerent nexus to the conict.504 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.505 This is the opposite of impartial. There is a clear qualitative difference between using a signicant degree of force in self-defence to protect an impartial convoy of food for civilians and to protect mission-essential equipment for the military in, for example, present-day Afghanistan. Deterring an attack on a military objective with force unquestionably fulls the belligerent nexus criteria. However, when the initial attack itself is criminal because it is against non-combatants or non-military objectives, it does not constitute direct participation in hostilities to use self-defence to defend against that attack.506 Some argue that even vigorous force in

500 501

502

503 504 506

the provision of humanitarian relief is usually through civilian persons; as such, civilians are protected from attack in so far as they are not directly participating in hostilities. Art. 22(2) GC I. This question is essentially raised by B. Perrin in Humanitarian Organizations and the Private Security Debate: Implications for International Humanitarian Law Conference Presentation at On the Edges of Conict Vancouver, BC, 2931 March 2009. While we concur with his answer in the result, our reasoning is different. C. Buchanan and R. Muggah, No Relief: Surveying the Effects of Gun Violence on Humanitarian and Development Personnel, Humanitarian Dialogue Report (2005), pp. 1920. ICRC, Interpretive Guidance on the Notion of DPH, pp. 601. 505 Ibid., pp. 46 and 5864. Ibid., p. 58. Ibid., p. 61. Note, however, that an attack on a civilian object may constitute direct participation in hostilities for the attacking party. Perrin, Humanitarian Organizations

eshing out ihl obligations for civilians

533

self-defence is acceptable in this context.507 Humanitarian relief supplies intended purely for civilians and otherwise complying with the requirements of such relief are not military objectives by their nature or purpose. It is unlikely, but not impossible, that they will become military objectives.508 However, they could become military objectives if, for example, a party to the conict uses a convoy for military transport or to ship weapons or ammunition. PMSCs using force to deter an attack on such a convoy may be directly participating in hostilities. The direct participation in hostilities by the PMSC in that instance, however, would be merely an additional element against the impartiality of the aid, since the initial use of the convoy for military purposes by a party to the conict would have already violated the principle of impartiality. Therefore, while it would be incorrect to state that PMSCs working for aid agencies will never be directly participating in hostilities if they use force, it is fair to say that in the rare circumstances in which their use of force does constitute direct participation in hostilities, it is not the key factor affecting the impartiality of the aid. On this level then, the use of force by PMSCs to defend relief shipments will in all likelihood not contravene the requirement that aid be provided impartially. It must be borne in mind, however, that a PMSC working for a humanitarian agency would be directly participating in hostilities (and thus, violate the requirement of impartiality) if it were to oppose control by a party to the conict over the relief 509 or if it were to enforce access to civilian populations in need against a party to the conict.510 A second threat to impartiality may arise through the hiring of armed PMSCs who have a link to a party to the conict. This may be especially
and the Private Security Debate, simply argues that the degree of force available for use in self-defence generally is very broad, without distinguishing between protection of military objectives and criminal attacks. ICRC consultative meetings on Direct Participation in Hostilities, Second Report, www. icrc.org/web/eng/siteeng0.nsf/htmlall/participation-hostilities-ihl-311205?opendocument; Second Expert Meeting: Direct Participation in Hostilities under International Humanitarian Law, Co-organized by the ICRC and the TMC Asser Institute, The Hague (256 October 2004), p. 14, ICRC, www.icrc.org/. Art. 52(2) AP I stipulates that objects may become military objectives in part due to their nature, purpose, location or use. This is because parties have a right to control such shipments; as such, interference with such control would constitute direct participation in hostilities. Even where IHL foresees a right of access to such persons, it is an obligation of the parties to consent. Using force in the case of a lack of consent is thus direct participation in hostilities.

507

508

509

510

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the case when local PMSCs are used.511 However, the contracting of a foreign PMSC does not entirely eradicate the problem.512 We have already discussed some of this in our discussion of impartiality for peace operations. First, foreign companies often operate by hiring local staff, which is how they reduce their costs. Humanitarian agencies and NGOs, not exactly ush with cash, will not likely be able to afford to force companies to avoid that practice easily. At the very least, it should not be assumed that all will be able to avoid this problem entirely. Secondly, a single PMSC may have a contract with a government (party to the conict) as well as with an organization providing aid. As impartiality is indivisible, one and the same PMSC acting under the same command and control structure cannot be impartial for some clients and ght against a belligerent party for other clients, except if the individual PMSC staff are placed under effective direction and control of the client. Beyond that, this problem is more a problem of perception, but it should be recalled that perceived impartiality is crucial to ensuring parties do not object to aid. As government contracts are often more lucrative, it may be perceived that the government could exert pressure with regard to the humanitarian aid.513 Finally, even foreign PMSCs may have a vested interest in the conict due to the fact that they may be part of larger conglomerates with ties to the extraction industry, such that they may not be entirely neutral or impartial. There is also the principle of humanitarianism itself. This principle has not been investigated in detail elsewhere in discussions of PMSCs and humanitarian aid, but it is implicit in what the International Federation of Red Cross and Red Crescent Societies and others mean when they observe that it would be catastrophic for the entire Red Cross movement if one of their armed guards killed someone.514 The notion that aid providers, in contradistinction to liberators, may never kill civilians
511

512

513

514

The spectre of this problem is raised by Perrin, Humanitarian Organizations and the Private Security Debate; J. Cockayne, Commercial Security in Humanitarian and PostConict Settings: An Exploratory Study (New York: IPA, 2006), and A. Stoddard, A. Harmer and V. DiDomenico, The Use of Private Security Providers and Services in Humanitarian Operations, HPG Report 27 (2008). See Perrin, Humanitarian Organizations and the Private Security Debate, p. 18 for a contrary view. C. Spearin, Humanitarian Non-Governmental Organizations and International Private Security Companies: The Humanitarian Challenges of Moulding a Marketplace, Geneva Centre for the Democratic Control of Armed Forces, Policy Paper 16 (2007). James Cockayne cites Lars Tangen of the International Federation of Red Cross and Red Crescent Societies, who stated, if an IFRC armed guard shoots someone,

eshing out ihl obligations for civilians

535

through arms in carrying out their mandate underpins the whole notion of humanitarian assistance, but it has no explicit legal basis. What has a legal basis in IHL is the notion that humanitarian assistance has to be impartial, which arguably implies that force may not be used against a belligerent party (although that is not the interpretation in UN peace operations). In addition, albeit more rarely, PMSCs (or other armed guards) may be used to provide third-party security in humanitarian operations. For example, they may be hired to provide security for persons an international agency is mandated to protect, such as refugees in camps.515 In such instances, the question is whether the use of PMSCs complies with the internal rules of the relevant organization as well as the principles governing the operation. A second aspect of PMSC involvement in humanitarian aid relates to PMSCs as providers. Indeed, it is not inconceivable that some PMSCs may be contracted to actually provide aid and organize medical transport.516 While this kind of role would not normally be considered to fall within the denition of private military and security companies, since medical personnel may be a category of persons forming part of the armed forces, and since the provision of aid is an activity that is closely regulated by IHL, the possibility thus merits a few words here. In order to enjoy the special protected status accorded to certain medical aid providers under the conventions and protocols, PMSCs would have to meet certain conditions. Convention I and Protocol I grant protection to medical personnel of national Red Cross societies and to other national voluntary aid societies. Can a PMSC qualify as a voluntary aid society? First of all, despite the everyday connotations of the word, for the purposes of the convention and protocol, voluntary does not mean that the staff of such societies are necessarily unpaid.

515

516

it will have huge implications for the whole Red Cross movement. Cockayne, Commercial Security, p. 14. Ibid., p. 7, provides this example, although in the instant case the arrangement involved a group of international military advisers and Zairian contingents. He also cites the case of UNMIK hiring PMSCs to protect the property restored to minorities in Kosovo. It should be noted that the protection mandate of such agencies is complex and extends far beyond mere physical/security protection. Thus, using PMSCs in this role should not be construed as somehow tantamount to an abdication of protection roles. They have provided medical support in a number of situations. ICRC, Study on the Use of the Emblems: Operational and Commercial and Other Non-operational Issues (Geneva: ICRC, 2011), p. 180, n. 269.

536 legal rules applicable to pmscs and their personnel

Rather, it means that their work is not based on any obligation to the State, but on an engagement accepted of their own free will.517 However, other conditions have to be met, including that the society has to be duly recognized and authorized by a Party to the conict.518 These requirements were inserted specically to avoid abuses and uncertainty. In fact, proposals to allow for the designation (through a xed sign) of independent doctors or other medical personnel were explicitly rejected by states.519 In addition, if they are acting as auxiliaries to the medical services of the armed forces, the personnel of such societies must be made subject to the military laws and regulations of the relevant state and protection is only accorded to those who are engaged exclusively in the medical duties provided for in Convention I.520 Other conditions exist as well.521 Thus, it is open to states to recognize and authorize for-prot companies to provide medical aid; however, if they are not recognized, the individuals do not benet from the special protection of the Geneva Conventions.522 In terms of the provision of humanitarian aid for the benet of the civilian population, PMSCs should be aware that only aid that meets certain requirements enjoys the benet of protection under IHL. First, aid must be provided impartially and it must be for the benet of the

517

518

519

520

521

522

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. 2245. Furthermore, the Commentary to Art. 12 AP I specically states that the recognition and authorization requirement may also concern private medical units, such as private clinics or ambulance services, implying that such private services may fall within the scope of IHLs protection. Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, p. 168, para. 525. See, contra, however, ICRC, Study on the Use of the Emblems, p. 181. Art. 8 AP I. Art. 26 GC I refers to such societies as are duly recognized and authorized by their Governments. The nature of incorporation may also play a role. This is implicit in the commentaries but not in articles it says only that they have to have been regularly constituted in accordance with national legislation. Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, para. 358. Bothe, Partsch and Solf, New Rules, p. 99; Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, p. 108, para. 280 (Part II). Art. 26 GC I and Pictet, Commentary GC I, p. 228 the duties are those listed in Art. 24; these rules are not extended to those providing medical aid to civilians under Additional Protocol I. E.g. aid must be provided without discrimination. See Art. 10 AP I. For those providing aid to the armed forces, states parties are required to inform other states which societies it has authorized and recognized. Art. 26(2) and Pictet, Commentary GC I, pp. 2289. As such, they also may not avail themselves of the use of the protective emblem.

conclusion

537

civilian population only.523 In addition, for aid other than non-medical relief for a limited section of the civilian population, it must have the consent of the parties to the conict.524 In order to ensure that the provision of aid does not result in a denite advantage for a party, the relief may cover only basic needs.525 If PMSCs were to provide aid in a manner that does not comply with these requirements, they would not be in violation of IHL; simply, their actions would not benet from the special rules applicable to humanitarian assistance. Finally, the mere fact that a PMSC is engaged in a humanitarian activity does not mean that that PMSC is a humanitarian organization within the meaning of the Geneva Conventions and Protocols. Indeed, for the purposes of those treaties, for an entity to be an impartial international humanitarian organization, it is essential that the organization itself has a humanitarian character, and, as such, follows only humanitarian aims. This restriction excludes organizations with a political or commercial character.526 Based on this interpretation of Article 9 AP I, a study by the ICRC on the use of the emblems concluded rather categorically, PMCs/PSCs are driven by economic dynamics of prot, are not essentially of a humanitarian character and could hardly be considered as impartial. They may not be qualied as international humanitarian organizations. They may not, therefore, be protected or use the emblem under this qualication.527 Again, this does not mean that PMSCs may not provide aid in situations of armed conict, but it does suggest that the primary organization responsible for supervising the use of the protective emblems would not condone their use by PMSCs.

Conclusion

If IHL is to protect the greatest number of people in dire situations, it must not be overly complicated to understand or respect. If everyone in situations of armed conict would abide by its most basic prohibitions not to murder, rape and torture, it would already go a long way to
523 524

525 526

527

Art. 23 GC IV; Art. 70 AP I. However, under certain circumstances, an occupying power is obliged to accept relief. See e.g. Arts. 55 and 59 GC IV. See also Art. 70 AP I. Commentary to Art. 23 GC IV, Pictet, Commentary GC IV, pp. 182, 183. Commentary to Art. 9 AP I; Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, para. 440. ICRC, Study on the Use of the Emblems, p. 182.

538 legal rules applicable to pmscs and their personnel

protecting civilians and other vulnerable persons. But some rules of IHL are perhaps less intuitive due to the fact that they are a product of the fundamental tension of IHL, which is to balance the principle of humanity against military necessity. IHL allows for signicant numbers of individuals to use force against and to kill others lawfully and with impunity. It is an extraordinary law for extraordinary circumstances, but which is recognized and accepted by all states. In this, the principle of distinction plays a central role in keeping armed conict from descending into murderous total war. In this chapter we have discussed in great detail the ways in which private military and security contractors can be drawn into hostilities as direct participants. This occurs in part due to the nature of the tasks that states sometimes contract them to perform, and in part due to an evident willingness on the part of the industry to exploit the individual right to use force in self-defence in order to full their contractual duties. Our concerns with this tendency may seem overwrought to some. Certainly, industry representatives sigh in exasperation any time mention is made of concerns about direct participation in hostilities by PMSCs. They scoff that apparent worries over whether PMSCs would have POW status are rooted in a complete lack of understanding of contemporary conicts, in which PMSCs legitimately have more reason to fear being kidnapped and beheaded than tried by a detaining power for unlawfully participating in hostilities. We are not impervious to the validity of the sentiment behind such statements; in our view, however, they miss the point. We agree that a probable lack of POW status may not be a paramount concern for the average PMSC. But we do think that some might be interested to know that the nature of some of their tasks and acts means that, under IHL at least, it may be lawful for opposing forces to target them directly, even if only for a limited time. Moreover, our concerns regarding the increasing use of persons who are neither combatants nor ghters in situations of armed conict in roles implicating them in hostilities centre on the likelihood that such participation inevitably contributes to a weakening of the principle of distinction. When it is not clear who may be lawfully targeted in war, the danger is that everyone becomes a potential target.

5 The implementation of responsibility arising from violations of international law by PMSCs*

Mechanisms for implementing international responsibility with regard to private military and/or security companies (PMSCs) exist on a number of levels, beginning with state action against other states through to PMSCs themselves enforcing obligations through procedures developed in self-regulation. In the following chapter, we will explore the various possibilities and pitfalls for implementing responsibility related to PMSC actions. In the rst section, we will discuss state responsibility and inter-state claims and consider the viability of individual claims against states for reparations for violations of international humanitarian law (IHL). In the second section, we will consider PMSCs in light of international criminal law, assessing the possibility of prosecuting corporations and the various forms of participation in international crimes to which PMSCs may be susceptible. In the third section, we will consider the various ways of using civil law claims to implement responsibility of PMSCs, in particular the US Alien Tort Statute (ATS). We will close the chapter with a word on self-regulation as a means of implementing responsibility.

A Implementation of state responsibility

In Chapter 2 above we provided an extensive discussion of how the acts of PMSCs may be attributable to states. While attribution is a key rst step in state responsibility, even if the activities of a PMSC may be attributed to a state, the important question as to how one can implement that responsibility in practice remains. Since states are the primary subjects of international law and since many states use PMSCs heavily, the
* Preliminary research for the theoretical aspects of the section A of this chapter was provided by Mr. Mamadou Hebi. The sections on international criminal law and civil law responsibility are based on research provided by Dr. Marie-Louise Tougas.

539

540 responsibility for violations of international law

implementation of responsibility deriving from violations of international law by PMSCs attributable to states is relevant for the general understanding of the applicable legal regime. The availability of judicial mechanisms is restricted mainly by the requirement of the consent of states, but certain treaty regimes contain external review mechanisms that states accept upon ratication, which can serve to assist the implementation of state responsibility. The question as to whether individuals can lodge complaints on the basis of violations of IHL by states in relation to PMSCs depends on the existence of a right to reparations accruing to individuals under IHL. In the following pages, we will consider all of these possibilities.

1 Implementation of state responsibility before international tribunals by other states 1.1 Legal regime of inter-state claims for violations of international law in general international law The rst questions that arise in inter-state claims under general international law are: which state(s) may invoke the responsibility of another state and what are the mechanisms or options under general international law for settling disputes? The following section will examine these two issues, with a particular focus on how state responsibility for PMSCs ts into the general framework.
1.1.1 Determining which state(s) may invoke responsibility According to Article 42 of the Articles on State Responsibility (ASR), a state is considered to be injured by a violation of international law, and thus to have a legal interest in a claim, when it is specially affected by that violation.1 A distinction thus must be made between the state specically injured by the violation in question and other states. The obligation

The text of Art. 42 ASR: A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: That State individually; or A group of States including that State, or the international community as a whole, and the breach of the obligation: specially affects that State; or is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation.

implementation of state responsibility

541

violated must have created subjective rights for the state in question and corresponding duties for the violating state. In such circumstances, the state is not looking to defend the respect of law in general, but to ensure reparation for the violation of a particular obligation which was due to it, either individually or as part of a group (i.e. under a unilateral declaration or through a bilateral or multilateral treaty or customary law obligation). States may be injured if there is an injury to one of their nationals, provided that certain conditions such as the exhaustion of local remedies are met.2 Article 42 ASR also permits states that were not specically injured by the violation in question to nevertheless invoke the responsibility of the breaching state. The right of a state to invoke responsibility when it is not specically injured or specially affected by the breach depends on the character of the obligation in question. That is to say, a legal relationship arises between the breaching state and other states due to a shared interest in protecting important community values. These obligations have been termed erga omnes obligations by the International Court of Justice (ICJ). They are obligations which are considered to be of international concern due to the importance of the rights they protect; therefore, all states may act to guarantee their protection.3 The ICJ has held that some provisions of IHL have an erga omnes character,4 which it seems to derive from customary international law; however, for IHL, Article 1 common to the Geneva Conventions expresses the legal interest of all states in the compliance with IHL by other states.5 Therefore, under IHL treaty rules, states have a legal interest to act for the respect of any of

Art. 44 ASR (Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries, in 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)) and the ILC Draft Articles on Diplomatic Protection with Commentaries, ILC, Report on the Work of its Fifty-eighth Session, UN Doc. A/61/ 10 (2006), pp. 13100. Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Judgment, Second Phase) [1970] ICJ Rep 3, at 32, para. 33 (Barcelona Traction). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 136, at 199, para. 155 (Legal Consequences of the Construction of a Wall). Hans Wassgreen, State Responsibility for Violations of International Humanitarian Law (1998) 7 Publications of the Finnish Branch of the Intl L Assoc 3067. On the determination of states injured by IHL violations, see Marco Sassli, State Responsibility for Violations of International Humanitarian Law (2002) 84 Intl Rev Red Cross 40134, 424. This is also set down in Art. 1 AP I.

542 responsibility for violations of international law

the provisions of the conventions on humanitarian law.6 Due to this specic nature of IHL norms, any violation by a PMSC attributable to a state may create a legal interest for all states to engage the responsibility of that state. While states injured by the breach of the obligations have a right to ask for compensation and reparation, according to Article 48 ASR, states not specically injured have only an interest in the respect of international legality.7 Therefore, while a state directly affected by violations of IHL in relation to the activities of PMSCs can ask for any remedy available under international law (cessation, reparation, guarantees of nonrepetition etc.) and may resort to countermeasures, the state intervening under the erga omnes nature of the rule breached may only ask for the cessation of the violation, for reparation in the interest of the beneciaries of the obligation breached and for guarantees of non-repetition. 1.1.2 Settling disputes arising from the establishment of international responsibility When a state has established its legal interest in the claim, it can either choose to enforce it through diplomatic means or through a formal act engaging the responsibility of the state.8 Through negotiation, mediation or conciliation, the state invoking responsibility can try, directly or with the help of a third party, to obtain reparation from the other state. Where negotiation between the parties is not fruitful, the injured state may still take countermeasures (conduct contrary to its own international obligations) to ensure that the other
6

See 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. 3. According to the authors, through Art. 1 of AP I, the Conference clearly demonstrated that humanitarian law creates for each State obligations towards the international community as a whole (erga omnes); in view of the importance of the rights concerned, each State can be considered to have a legal interest in the protection of such rights. Other erga omnes obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Barcelona Traction, at 32, para. 34. In Case Concerning East Timor (Portugal v. Australia) (Merits) [1995] ICJ Rep 90, at 102, para. 29, the ICJ added the right to self-determination to this list. ASR with Commentaries 2001, p. 127 referring, inter alia, to the claim of Liberia and Ethiopia against South Africa in the South West Africa Cases: para. 11 of the ILC Commentary to Art. 48. See, in this regard, Art. 43 ASR, which stipulates that when a state wants to engage the international responsibility of another, it shall give notice of its claims to that state. See also the ILC Draft Articles on Diplomatic Protection with commentaries (n. 2 above).

implementation of state responsibility

543

state complies with its obligation to repair the unlawful act. However, countermeasures may not touch upon obligations of a humanitarian character.9 The state whose rights have been violated may also want to try to bring a claim before an international tribunal, if the latter has jurisdiction. As jurisdiction in international law is based on consent,10 it is necessary to establish that the state responsible and the state invoking the responsibility have consented to jurisdiction, either in general or in the case in question. The importance of the right violated is not in and of itself sufcient to allow a court to adjudicate the case.11 IHL treaties do not provide for jurisdiction of the ICJ in the case of disputes; however, some international human rights instruments do provide a basis of jurisdiction for the ICJ to examine claims of violations of treaty provisions, which could also provide an avenue for ICJ jurisdiction over a case involving alleged violations of IHL committed by PMSCs attributable to a state.12 The mechanisms of inter-state responsibility remain an option for implementing obligations in relation to actions of PMSCs that violate international law and can be attributed to a state. To date, no state has sought to use the machinery of international dispute settlement (in terms of tribunals or arbitration) with regard to violations by PMSCs. Despite serious violations, where a case of attribution could likely be made out, states have chosen to try to stop violations through other means for

9 10

11

12

See Art. 41 ASR. See concerning the ICJ, 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, at 32. The allegation of violation of jus cogens norms does not affect the requirement of consent to jurisdiction: 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, at 32, para. 64. See e.g. the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85, in force 26 June 1987, Art. 30; Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277, in force 12 January 1951, Art. IX; International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 UNTS 195, in force 4 January 1969, Art. 22. See esp. 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, at 387, para. 112, where the ICJ accepted that it has jurisdiction over the dispute on the grounds that the acts alleged may violate the convention, even if certain of these alleged acts might also be covered by other rules of international law, including international humanitarian law.

544 responsibility for violations of international law

example, following the Nisoor Square massacre in Baghdad, the Iraqi government took steps to stop or at least control the actions of the PMSC involved by denying permits and changing its local laws.13 In negotiations with the United States on the subsequent Status of Forces Agreement, the Iraqi government made the removal of immunity for PMSCs a priority. These actions may have done nothing in terms of a recognition of state responsibility or providing reparations, but they may be perceived by states as a simple and effective means to guarantee non-repetition of the violation in question. In the absence of general compulsory jurisdiction, the use of special judicial or quasi-judicial mechanisms to which the responsible state has already consented is worth exploring, especially when they allow individuals to participate in the proceedings.

The review of implementation through treaty-body procedures

Human rights conventions in particular contain clauses requiring state parties to submit periodic reports on the implementation of their obligations. Usually, there is a monitoring body established by the parties to the treaty which examines the periodic reports, makes observations regarding any lacunae in protection, and provides recommendations and guidance on how to better implement the convention.14 The process does not culminate in a legal duty for the state party to implement the observations; however, the monitoring body may make a nding that a state did not discharge its obligation(s) under the convention.15 Therefore, the reports of treaty monitoring bodies may carry an authoritative weight on the situation of human rights in the country under review.16
13

14

15 16

See Jennifer Elsea, Private Security Contractors in Iraq and Afghanistan: Legal Issues, Congressional Research Service Report for Congress (7 January 2010), p. 1. See e.g. Art. 40(4) ICCPR. See also Art. 41 of the Inter-American Convention on Human Rights; Art. 62 AChHPR; International Convention on the Elimination of All Forms of Racial Discrimination (Art. 9); the Convention on the Elimination of All Forms of Discrimination against Women (Art. 18); the Convention on the Rights of the Child (Art. 44); the International Covenant on the Protection of the Rights of All Migrant Workers and Members of their Families (Art. 73). Under the ICESCR, the Economic and Social Council has established the Committee on Economic, Social and Cultural Rights to monitor the implementation of the Covenant by state parties and United Nations specialized agencies (ECOSOC Resolution 1985/17). E.g. Art. 70 ICCPR. Thomas Buergenthal, The U.N. Human Rights Committee (2001) 5 Max Planck Ybk UN L 34198, 351: the ndings set out in concluding observations must be viewed as

implementation of state responsibility

545

Moreover, the possibility for the committee to publish the report of the state under review and the contents of its observations may create a name and shame phenomenon that states are keen to avoid. Under the Universal Periodic Review mechanism of the Human Rights Council, all member states of the United Nations (UN) are submitted to a peer review of their human rights record.17 Recently, human rights treaty monitoring bodies have reviewed states obligations in relation to the activities of PMSCs. For instance, the UN Human Rights Committee (HRC) urged the United States to ensure that allegations of violations by contract employees in its detention centres such as Abu Ghraib and Guantnamo are duly prosecuted.18 In its report under the Convention against Torture, the United States declared that it had conducted or initiated investigations regarding PMSCs alleged to have been involved in misconduct in Abu Ghraib prison.19 The committee specically enquired whether any contractors had been prosecuted.20 In 2008, the HRC recommended that the UK adequately train all of its personnel and its contractors in order to prevent the torture and death of detainees in extraterritorial custody.21 For its part, the InterAmerican Commission on Human Rights (IACHR) has requested states to provide information on the number of private security companies operating in their territory, as well as to describe the principal watchdog organizations monitoring them.22
authoritative pronouncements on whether a particular state has or has not complied with its obligations under the Covenant. See also HRC, 94th Sess., Geneva (1331 October 2008), General Comment no. 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, CCPR/C/GC/33, 5 November 2008, para. 11 (advanced unedited version), which afrms the quasi-judicial nature of the views of the HRC on individual complaints. See Resolution A/RES/60/251 of the UN General Assembly establishing the Human Rights Council. HRC, Concluding Observations, United States, UN Doc. CCPR/C/USA/CO/3/Rev.1, para. 13. Consideration of Reports submitted by states parties under Art. 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. Committee against Torture, List of Issues to Be Considered during the Examination of the Second Periodic Report of the United States of America (8 February 2006) UN Doc. CAT/C/USA/Q/2, para. 22. HRC, Concluding Observations, United Kingdom of Great Britain and Northern Ireland, UN Doc. CCPR/C/GBR/CO/6, 30 June 2008, para. 14. In the case of the UK, the incidents of torture and death in custody in Iraq did not involve PMSCs. Organization of American States, Inter-American Commission on Human Rights, Citizen Security and Human Rights: Annex Questionnaire, Question 26, 10 December 2007.

17

18

19

20

21

22

546 responsibility for violations of international law

These examples indicate that states will be scrutinized and called to account for the actions of PMSCs that violate human rights by international treaty monitoring bodies. States are reminded of their obligations under the conventions and are urged to take measures to ensure that legality is respected in the future and also that the actual wrongs are repaired. Nonetheless, these review mechanisms do not give individuals direct access to the procedures or to obtain reparation for damages.23

3 The legal actions of individuals against states

Individuals may have a cause of action when their rights have been violated, but the rst question that arises when it comes to reparations for the acts of PMSCs in the context of an armed conict is whether an individual right of action against states exists under IHL. This is an issue that has traditionally been dealt with in the context of war reparations. Once the existence of the right has been established, we will consider issues relating to the forum in which such claims can be made.

3.1 A right to reparation under IHL? The legal standing of the victims of violations of IHL, especially concerning their right to compensation, is subject to some controversy. The tension seems to ow from the difculty of balancing the universal quest for justice (which requires any wrong to be repaired) with the need to come to an everlasting peace.24 There is concern that individual claims against states may impede a stable resolution of the conict in a worst-case scenario, hostilities may resume as a consequence of these difculties. However, these remarks reect policy considerations rather than legal ones. The purely legal question remains: under international law, are reparations due to individual victims of IHL? There are two clear trends on this issue in doctrine. While some authors consider that under IHL there is a right to reparation for victims, others take the opposite stance, arguing that those rules only concern interstate relations, basing their conclusion on an observation of state practice.
23

24

See section 3.2 below for a discussion of individual complaints before human rights bodies. Andrea Gattini, To What Extent Are State Immunity and Non-Justiciability Major Hurdles to Individuals Claims for War Damages? (2003) 1 JICJ 34867, 3489.

implementation of state responsibility

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3.1.1 Arguments in favour of recognition of the right to reparation under IHL Most of the debates concerning the existence of a right to reparation under IHL focus on Article 3 of Hague Convention IV and Article 91 AP I. Concerning international armed conicts, authors who support the thesis of a right to reparation under IHL base their analysis mainly on the travaux prparatoires of Article 3 of the Hague Convention IV, which stipulates, 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. The provision has been literally reproduced in Additional Protocol I, without any substantial modication,25 at least concerning the point of the existence of a right to reparation.26 The Vietnamese delegation which proposed its incorporation in the text of the treaty said that the purpose of its inclusion was to restate the principle of reparation enshrined in Article 3 of the Hague Convention IV.27 This would make the interpretation of Article 3 decisive as to the existence of that right in IHL; however, the text of Article 3 is silent in many respects related to reparation. It does not dene explicitly whether it is the state or the individual victim that has the right to reparation. In addition, it does not clarify whether reparations must be paid during the armed conict itself or during the settlement of the war claims.28 Like many other rules of international law,29 Article 3 (and the other provisions of the convention) are also silent on the mechanisms to implement any rights or reparation, be they inter-state or individual-state mechanisms. From the text of the convention, therefore, no decisive conclusion regarding the existence of an individual right to reparation under Article 3 of Hague Convention IV can be reached.
25 26

27

28 29

Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, p. 1053. Frits Kalshoven, Article 3 of the Convention (IV) Respecting the Laws and Customs of War on Land, Signed at The Hague, 18 October 1907 in H. Fujita, I. Suzuki and K. Nagano (eds.), War and the Rights of Individuals: Renaissance of Individual Compensation (Tokyo: Nippon Hyoron-sha, 1999), p. 37. See also Frits Kalshoven, State Responsibility for Warlike Acts of 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, 850. Micaela Frulli, When Are States Liable Towards Individuals for Serious Violations of Humanitarian Law? The Markovi Case (2003) 1 JICJ 40627, 416. See for this criticism, Gattini, Hurdles to Individuals Claims for War Damages, p. 350. According to the ICJ, In the international eld, the existence of obligations that cannot in the last resort be enforced by any legal process, has always been the rule rather than the exception, and this was even more the case in 1920 than today. South West Africa, Second Phase (Liberia v. South Africa) (Judgment, Second Phase) [1966] ICJ Rep 6, at 46, para. 86.

548 responsibility for violations of international law

The travaux prparatoires provide more elements of appreciation. The rst idea of providing reparations for activities of armed forces appeared during the drafting of Articles 52 and 53 of the Hague Regulations, which relate to requisitions made by an occupying power. These provisions created a duty to pay indemnities for the requisitions in kind that the occupying power may ask from the local population. It was aimed at outlawing the practice of occupying powers living off of the occupied land without payment.30 In those proceedings, Germany proposed two changes. First, the scope of the provision should not be limited only to acts occurring in an occupied territory. Secondly, the duty to pay compensation to civilians should be restricted only to the cases where there have been violations of the regulations.31 Eric David remarked that the German proposal32 avoided a tort law approach out of concern that a majority of individuals who were injured by a breach of the regulations would be denied their right to compensation if they had to turn against the ofcer or soldier responsible.33 The proposal of the German delegate regarding the right to reparation of individuals was not rejected by any of the states present at the conference.34 In fact, declarations of state delegates were clearly in favour of the notion.35 In the debate, only
30 31 32

33

34

35

Kalshoven, State Responsibility for Warlike Acts of the Armed Forces, p. 831. Ibid. Eric David, The Direct Effect of Article 3 of the Fourth Hague Convention of 18th October 1907 Respecting the Laws and Customs of War on Land, in H. Fujita, I. Suzuki and N. Nagano (eds.), War and the Rights of Individuals. Renaissance of Individual Compensation (Tokyo: Nippon Hyoron-shal Co. Ltd Publishers, 1999), pp. 503, analysing the travaux prparatoires as published in A. Mechelynck, La Convention de la Haye concernant les lois et coutumes de la guerre sur terre, Documents coordonns des travaux des Confrences de 1874, 1899 et 1907 (Gand, 1915), p. 100. David, The Direct Effect of Article 3, p. 53. See also Kalshoven, State Responsibility for Warlike Acts of the Armed Forces, p. 832. The only point of the German proposal that was subject to criticism was the distinction made between nationals of neutral states and those of an enemy state concerning the moment of the reparation. While the damage caused to a neutral state national would be repaired immediately, the damage caused to enemy state nationals would be repaired during peace negotiations. David, The Direct Effect of Article 3. Kalshoven, Article 3 of Convention IV, p. 36; Kalshoven, State Responsibility for Warlike Acts of the Armed Forces. David cites a number of passages from the travaux prparatoires in support of his arguments, including the Swiss position and the delegate of Great Britain, Lord Reay, who declared that: Article 1 [of the German proposal] accords to neutral persons a right against the belligerent Party to reclaim compensation for the wrong caused to them, whereas Article 2 says that compensation will be arranged once

implementation of state responsibility

549

Turkey seemed to doubt the existence of a right to reparation under IHL,36 although it eventually adopted the provision without reservation. With the exception of this element, there was no controversy on the principle of the obligation of states to provide reparations to victims of IHL in international law.37 According to part of the legal literature, the consensus expressed in this provision is sufcient to conclude that there is a right to reparation under IHL, on the basis of Article 3 of the Hague Convention IV. This was the point of view of three experts who provided a legal opinion on the existence of a right to reparation under Article 3 of the Hague Convention38 and it is shared by other authors who also consider that the purpose of Article 3 was to confer a right to reparation on victims of IHL violations.39 That being said, other authors have cast doubt on this conclusion and domestic case law related to war claims by individuals seems to deny the existence of a victims (individual) right to reparation under IHL. 3.1.2 Scepticism concerning the existence of a right to reparation under IHL Many of the authors who doubt the existence of an individual right to reparation under IHL base their conclusion on state practice, in particular on the decisions of domestic tribunals concerning claims of
peace has been concluded for persons of the opposing belligerent. It follows that for these people compensation depends upon the terms of the peace treaty resulting from negotiations between the parties. I do not contest the obligation which exists for a belligerent Power to compensate those who have been the victims of violations of the laws and customs of war and Great Britain does not wish in any way to avoid its obligations. [Mechelynck, La Convention de la Haye, p. 103 (emphasis added by David)]
36 37 38

39

David, The Direct Effect of Article 3, pp. 512. See David, The Direct Effect of Article 3, p. 52. Kalshoven, State Responsibility for Warlike Acts of the Armed Forces, p. 832. David, The Direct Effect of Article 3, p. 53; Kalshoven, Article 3 of Convention IV, p. 38. Christopher Greenwood, Right to Compensation of Former Prisoners of War and Civilian Internees under Article 3 of Hague Convention No. IV, 1907 in H. Fujita, I. Suzuki and K. Nagano (eds.), War and the Rights of Individuals. Renaissance of Individual Compensation (Tokyo: Nippon Hyoron-shal Co. Ltd Publishers, 1999), p. 64. See, contra, Gattini, Hurdles to Individuals Claims for War Damages, p. 351. See Liesbeth Zegveld, Remedies for Victims of Violations of International Humanitarian Law (2003) 85 Intl Rev Red Cross 497527, 507, 512; Elke Schwager, The Right to Compensation for Victims of an Armed Conict (2005) 4 Chinese J Intl L 41739, 424. Frulli, When Are States Liable Towards Individuals?, p. 418; Emanuela-Chiara Gillard, Reparation for Violations of International Humanitarian Law (2003) 85 Intl Rev Red Cross 52953, 536.

550 responsibility for violations of international law

civilians.40 In this regard, Japanese tribunals furnish the bulk of the case law related to war claims, refusing in most cases to grant reparation to individuals and contradicting the reading given to the travaux prparatoires by Kalshoven and other authors.41 According to the Japanese case law, Article 3 of the Hague Convention IV has to be read in the framework of the traditional protection of individuals in international law. In other words, only a state, through diplomatic means, can claim reparations for damages suffered by its nationals due to violations of IHL by another state.42 That being said, Frulli has observed that some decisions of Japanese courts have limited their ndings to a pronouncement on customary international law existing at the time
40

41

See, in this regard, Gattini, Hurdles to Individuals Claims for War Damages, p. 351; Rainer Hofmann, Victims of Violations of International Humanitarian Law: Do They Have an Individual Right to Reparation against States under International Law? in P. M. Dupuy et al. (eds.), Vlkerrecht als Wertordnung: Common Values in International Law. Essays in Honour of Christian Tomuschat (Kehl: Engel, 2006), p. 355; Toni Pfanner, Various Mechanisms and Approaches for Implementing International Humanitarian Law and Protecting and Assisting War Victims (2009) 91 Intl Rev Red Cross 279328, 2889. In X and ors v. State of Japan (regarding Dutch POWs and detainees), the Tokyo District Court held: it is acknowledged that, in the drafting process of Article 3 of the 1907 Hague Convention, the issue of reparation for individuals who suffered damages was also within the purview of this article. However, there is no evidence in the same process that might suggest an intention of States party to it to stipulate the article in a way that enables individuals to bring direct claims for compensation against the State. Nor were there any statements by delegations of the States party to it suggesting that there existed an agreement among them as to the creation of a provision that would stipulate individual right of claims In this light, it is supposed that each State at the time of the Conference took it for granted that reparation for injured individuals could be effectuated only through traditional diplomatic protection in accordance with the principle in international law. See X and ors v. State of Japan, Judgment, 30 November 1998; HT (991) 262 [1999]; repr. (1999) 42 Japanese Annual Intl L 14351, 1489. In another case arising out of facts shortly after the end of the Second World War, the Tokyo High Court held, When the incident occurred, there was no evidence of any general practice, nor the existence of opinio juris that when a state acts in violation of the obligation of international human rights law or international humanitarian law, that state has the responsibility of compensating for the damages any individual who was a victim. See X and ors v. State of Japan, Judgment, 7 August 1996; repr. (1996) 39 Japanese Annual Intl L 11617. See also Dieter Fleck, Individual and State Responsibility for Violations of Ius in Bello: An Imperfect Balance in W. Heintschel von Heinegg and V. Epping (eds.), International Humanitarian Law Facing New Challenges: Symposium in Honour of Knut Ipsen (Berlin: Springer, 2007), p.184. See also Frulli, When Are States Liable Towards Individuals?, pp. 41920.

42

implementation of state responsibility

551

of the incident complained of , thereby leaving open the possibility for other courts to nd that the law has since evolved.43 Other arguments are also invoked by domestic tribunals to reach the conclusion that there is no right to reparation under IHL. For instance, US courts have held that the norms of IHL are not self-executing, including in relation to the question of war claims by individuals.44 On the basis of this reasoning, they conclude that no direct rights enforceable by individuals arise from the Geneva Conventions.45 In other instances, it has been claimed that the right to reparation accruing to individuals under IHL have been extinguished through the conclusion of a treaty of peace.46 Despite this record of not allowing claims, Emanuela-Chiara Gillard points out that none of the courts denied the underlying right to compensation.47 The practice of war claims commissions cuts both ways in terms of practice. On the one hand, it shows that states seek to provide a forum for individuals to access reparations for war crimes. On the other hand, it is argued that the existence of commissions such as the UN Compensation Commission cannot be invoked to sustain the principle of a right of individuals to compensation precisely because such commissions had to be created by special convention.48 A cluster of recent cases stemming from some of the acts of Nazi forces in occupied Europe during the Second World War add to the confusion as to the existence of a right to reparation for individuals. A group of plaintiffs seeking damages against Germany for the destruction of the
43 44

45

46 48

Ibid., p. 420 (Frullis italics not reproduced). Goldstar (Panama) S.A. v. United States, 967 F 2d 965 (1992), para. 7; Handel v. Artukovic, 601 F Supp 1421 (DC C Cal 1985), repr. Marco Sassli and Antoine Bouvier, How Does Law Protect in War? (ICRC, Geneva, 1999), pp. 71319. See for the US general doctrine on the non self-executing nature of the Geneva Conventions, US Court of Appeals for the Fourth Circuit, Hamdi v. Rumsfeld (2003) 42 ILM 197. See Alwyn Freeman, Responsibility of States for Unlawful Acts of their Armed Forces (1955) 88 Recueil des Cours de lAcadmie de Droit International 333; G. Aldrich, Individuals as Subjects of International Humanitarian Law in J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzystof Skubizewski (The Hague: Kluwer, 1996), p. 851; R. Dolzer, The Settlement of War-related Claims: Does International Law Recognize a Victims Private Right of Action? Lessons after 1945 (2002) 20 Berkeley J Intl L 296341, 308. Natalino Ronzitti, Access to Justice and Compensation for Violations of the Law of War in F. Francioni (ed), Access to Justice as a Human Right (Oxford University Press, 2007), pp. 11011. 47 Gillard, Reparation for violations, p. 537. Ibid., p. 538. Christian Tomuschat, Human Rights: Between Idealism and Realism (Oxford University Press, 2008), pp. 36970.

552 responsibility for violations of international law

Greek village of Distomo were successful in Greeces highest court;49 however, as the Greek government refused to execute the judgment, they pleaded their case before German courts.50 The German Federal Supreme Court came to the opposite conclusion, holding that in 1944, at the time of the occurrence of the facts giving rise to the claim, individuals were not subjects of international law and as such could not claim any right to reparation for violations of IHL.51 This reasoning appears similar to that of some Japanese courts evoked above. However, Italian courts have begun accepting claims from individuals against Germany based on the acts of its armed forces in the Second World War,52 illustrating some tendency toward the Greek courts view in favour of individual claims.53 The ICJ declined to pronounce on the existence of individual rights to claim reparations in its decision in Germany v. Italy.54 3.1.3 The existence of the right to reparation under IHL Considering the diversity of the reasons invoked to deny the existence of a right to reparation under IHL, a distinction needs to be made between the arguments related to the existence of the right and its exercise. Obviously,
49

50 51

52

53

54

See Gattini, Hurdles to Individuals Claims for War Damages, pp. 35662 for an extensive discussion of the case in Greek courts. The case before the Greek courts is known as Prefecture of Voiotia v. Federal Republic of Germany, Case no. 11/2000 (4 May 2000) Areios Pagos (Hellenic Supreme Court). See case comment by M. Gavouneli and I. Bantekas in (2001) 95 AJIL 198204. The lower court found there was an individual right to reparation under IHL, while the higher court based its decision on crimes against humanity and avoided the IHL-reparations discussion. See also Gillard, Reparation for Violations, pp. 5389. Germany, BGH, Distomo, NJW 2003, 3488, 3491. See S. Pitroff, Compensation Claims for Human Rights Breaches by German Armed Forces Abroad during the Second World War: Federal Court of Justice Hands Down Decision in the Distomo Case (2004) 5 German LJ 1521, 1920. The Supreme Court was upheld on this point by the Constitutional Court: Germany, BVerfG, NJW 2004, 3257, 3258, cited in Schwager, Right to Compensation, p. 423. For a fuller discussion of the Constitutional Courts decision, see Markus Rau, State Liability for Violations of International Humanitarian Law: The Distomo Case Before the German Federal Constitutional Court (2005) 7 German LJ 70120, esp. 70910. Ferrini v. Federal Republic of Germany, Court of Cassation, 11 March 2004 (2004) 87 Rivista di diritto internazionale, at 539; repr. 128 ILR 659, Judgment no. 5044/2044. Additional cases are cited in the Order of the ICJ rejecting Italys counterclaim against Germany. See Jurisdictional Immunities of the State (Germany v. Italy) (Counterclaim: Order) ICJ 6 July 2010, www.icj-cij.org/docket/les/143/16027.pdf, at para. 11. This situation led Germany to institute proceedings in the ICJ against Italy for infringement of state immunity. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) (Judgment) 3 February 2012.

implementation of state responsibility

553

a right can exist even if its exercise is subject to conditions.55 In the case concerning the Peter Pzmny University, the Permanent Court of International Justice (PCIJ) considered that it is scarcely necessary to point out that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself .56 In our view, the existence of a substantive right (primary norm) needs to be ascertained from a reading of IHL norms. IHL treaties contain provisions that stipulate rights for individuals. Many provisions of IHL clearly refer to the rights of wounded, sick and shipwrecked. Indeed, the Geneva Conventions do not hide the fact that individuals have rights protected by the conventions. For instance, one article common to the four Geneva Conventions explicitly provides that the persons specially protected by each convention may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention.57 This is a clear recognition that rights are granted to individuals under the Geneva Conventions. Article 14 GC III, for instance, stipulates that Prisoners of war are entitled in all circumstances to respect for their persons and their honour. In our view, all the entitlements mentioned in the IHL treaties should be read as rights conferred on individuals. Indeed, many rules of IHL are formulated in a human rights-like manner as entitlements of victims of armed conicts.58 Even for provisions which are not clearly formulated in a human rights manner, the decisions of the ICJ in the LaGrand and Avena cases suggest that one can distil rights for
55

56

57 58

In a similar line of reasoning, see Schwager, Right to Compensation, p. 424. Luke T. Lee, The Right of Victims of War to Compensation in R. St J. Macdonald (ed.), Essays in Honour of Wang Tieya (Dordrecht: Martinus Nijhoff, 1994), p. 495. See also Decision of Tokyo District Court, 7 December 1963, Case no. 2914 (wa) of 1955 and Case no. 4177 (wa) of 1957, 8 (1964) Japanese Annual Intl L 219. This distinction is missed by many authors who consider, in the absence of any procedural right to engage the responsibility of a state, that there is no right to reparation under IHL. See e.g. Ana Salado-Osuna, The Victims of Human Rights Violations in Armed Conicts: The Right to Justice, Truth and Compensation in P. A. Fernndez-Snchez (ed.), The New Challenges of Humanitarian Law in Armed Conicts: In Honour of Professor Juan Antonio Carrillo-Salcedo (Leiden: Martinus Nijhoff, 2005), pp. 336 and 340. 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, at 231. Arts. 7, 7, 7 and 8 respectively of each of the four Geneva Conventions. Sassli, State Responsibility for Violations of IHL, p. 419. See also Schwager, Right to Compensation, pp. 41920; Zegveld, Remedies for Victims of Violations, pp. 5035; Riccardo Pisillo Mazzeschi, Reparation Claims by Individuals for State Breaches of Humanitarian Law and Human Righs: An Overview (2003) 1 JICJ 33947, 341.

554 responsibility for violations of international law

individuals from treaties stipulating duties between states.59 Good examples of such provisions include those allowing the civilian population to collect and care for wounded and sick60 and protecting civilians doing just that;61 the article providing that no injured prisoner of war (POW) may be repatriated against his will;62 and the provision stipulating that protected persons in occupied territories shall be permitted to receive the individual relief consignments sent to them.63 Thus, certain IHL provisions provide direct rights to individuals. As the text of those provisions clearly manifests the intention of the states parties to create rights for the benet of individuals, there is no need under international law for domestic procedures to create these rights. As the PCIJ declared, it cannot be disputed that the very object of an international agreement, according to the intention of the contracting Parties, may be the adoption by the Parties of some denite rules creating individual rights and obligations and enforceable by the national courts.64 Since many of the provisions of the Geneva Conventions and their Additional Protocols provide for rights to private individuals, it is clear that it was the intention of their drafters to create rights and obligations for them. In this regard, certain decisions of US courts which globally reject the self-executing nature of IHL treaties despite the fact that in the United States monist constitutional system international treaties are part of the law of the land must be criticized.65 If there are rights arising directly from IHL, the next step is to determine whether the violation of these rights entails a duty of reparation by the
59

60 63

64

65

LaGrand (Germany v. United States) (Merits) [2001] ICJ Rep 466, at 494, para. 77. See also Avena and Other Mexican Nationals (Mexico v. United States of America) (Judgment) [2004] ICJ Rep 12, at 36, para. 40. In these cases, the Court recognized that conventions regulating inter-state relations that impose obligations on states in relation to individuals shall be construed as granting rights to individuals. 61 62 Art. 18(2) GC I. Art. 18(3) GC I. Art. 109(3) GC III. Art. 62 GC IV. Zegveld considers that Art. 15 GC I gives wounded and sick armed forces an individual right to be collected and cared for. See Zegveld, Remedies for Victims of Violations, p. 504; see ibid., pp. 5035 for a discussion of IHL provisions creating rights for individuals. Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway Ofcials who have passed into the Polish Service, against the Polish Railway Administration) (Advisory Opinion) [1928] PCIJ Rep Series B, no. 15, at 1718. Defending this position see Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford University Press, 1989), p. 224; E. David, Principes de droit des conits arms, 2nd edn (Brussels: Bruylant, 1999), p. 224; Kalshoven, State Responsibility for Warlike Acts of the Armed Forces, p. 830; Sassli, State Responsibility for Violations of IHL, p. 419; Zegveld, Remedies for Victims of Violations, p. 510.

implementation of state responsibility

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state that committed the unlawful act. The response in this case is also obvious. Article 1 ASR stipulates that the violation of any obligation of international law entails the international responsibility of the state to which it is attributable. True, this does not yet entail that the individual who suffered the violation has a subjective, international right to reparation. Article 33(2) ASR simply stipulates that the Articles on State Responsibility are without prejudice to the right to reparation of any person or entity other than a state. The Commentary to this provision species, however, that when a right of an individual is violated, the individual ipso facto has a right to obtain compensation, adding that this conclusion is also valid in spheres of international law other than human rights.66 The broad formulation taken by the International Law Commission (ILC) may be based on the idea that the principle of reparation of damages is a general principle of law under Article 38 of the ICJ Statute. The PCIJ considered in the Chorzw Factory case that it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation.67 In its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories the ICJ reiterated the principle from Chorzw that the essential principle contained in the actual notion of an illegal act is that reparation must, as far as possible, wipe out all of the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.68 Therefore, the ICJ found that Israel was under an obligation to make reparation for the damage caused to all the natural or legal persons because of the unlawful character of the wall it built.69 It is therefore possible to consider that victims of IHL violations do have a right under IHL to reparation of the damages caused to them.70
66 67

68 69

70

ASR with Commentaries 2001, para. 3 of Commentary to Art. 33. Case Concerning the Factory at Chorzw (Germany v. Poland) (Merits) [1928] PCIJ Rep Series A, no. 17, at 29. Legal Consequences of the Construction of a Wall at 198, para. 152. Ibid. Emphasis added. Furthermore, Schwager argues that that this requirement even without the intermediary of a state does not stem from the lack of a Palestinian state since the Court could have made a ruling in favour of the Palestinian National Authority as the representative of the Palestinian people in Schwager, Right to Compensation, p. 429. Fleck considers that it is inadmissible to exclude collateral damages victims from the right to reparation: Responsibility for Violations of Ius in Bello, p. 180. Normally, however, no compensation is required for an act that conforms to the requirements of the law. See also Gillard, Reparation for Violations, p. 551.

556 responsibility for violations of international law

Article 3 Hague Convention IV and Article 91 AP I are a conrmation of a general principle of law, obliging states to make good any wrongs that they commit.71 In any case, until the 1950s, no claim was made by an individual against a state, except in specic cases where it was explicitly permitted by peace treaties.72 Practice regarding the right to reparation under IHL has mostly been limited to inter-state claims until the midtwentieth century,73 which is why Christian Tomuschat considers that the idea of an individual introducing a legal claim against a state for reparations for war crimes is a child of our generation.74 In addition to an individual right to reparation owing from general principles of law, recent developments in international law point toward a consolidation of such a right. The Basic Principles and Guidelines on the Right to a Remedy for Victims of Gross Violations of International Human Rights Law and International Humanitarian Law adopted by the UN General Assembly may represent the beginning of a codication of the right.75 Furthermore, developments in international criminal law are relevant: Article 75 of the International Criminal Court (ICC) Statute emphasizes that the Court will establish rules permitting reparations for victims of international crimes; in addition, judges of the International Criminal Tribunal for the Former Yugoslavia (ICTY) have also emphasized the need to allow reparations to victims.76 In our view, the practice
71 72 73

74

75

76

In the same sense, see Gillard, Reparation for violations, p. 532. Higher Administrative Court Mnster, III A 1279/51, NJW 1952, 1030. R. Provost, International Human Rights and Humanitarian Law (Cambridge University Press, 2002), p. 45. Gillard, Reparation for Violations, p. 534; Tomuschat, Human Rights, p. 369. Hofmann, Individual Right to Reparation?, p. 349; Pierre dArgent, Les Rparations de guerre en droit international public: la responsabilit des tats lpreuve de la guerre (Bruxelles: Bruylant 2002), pp. 7848; Frulli, When Are States Liable Towards Individuals?, p. 421. Christian Tomuschat, Reparation in Favour of Individual Victims of Gross Violations of Human Rights and International Humanitarian Law in M. Kohen (ed.), Promoting Justice, Human Rights and Conict Resolution through International Law: Liber amicorum Lucius Caisch (Leiden: Brill, 2007), p. 576. Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General pursuant to Security Council Resolution 1564, 25 January 2005, paras. 593 et seq., www.un.org/News/dh/ sudan/com_inq_darfur.pdf. These principles were adopted by the UN Commission on Human Rights (19 April 2005), the Economic and Social Council (25 July 2005), and by the UN General Assembly (16 December 2005): UNGA Res. 60/147 Basic Principles and Guidelines on the Right to a Remedy for Victims of Gross Violations of International Human Rights Law and International Humanitarian Law. UN Secretary-General, Victims Compensation and Participation, Appendix Letter from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2000/1063.

implementation of state responsibility

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of claims commissions such as the United Nations Compensation Commission (UNCC)77 or the Eritrea-Ethiopia Claims Commission78 demonstrates the intent of the international community to compensate individual victims of violations of IHL. While some authors have considered that in the light of these recent developments a right to reparation has emerged in international law,79 others have simply considered it to be an increasing tendency for recognition.80 Arguably, as a general principle of law, one is no longer obliged to establish the customary nature of the rule to declare its validity under international law; a right to reparation may arise from any violation of his rights under IHL that an individual may suffer. Recently, the International Law Association (ILA) Committee on Reparation for Victims of Armed Conict has enshrined the principle of individual victims as holders of the right to reparation in its Draft Declaration of 2010.81 Article 6 of the declaration states, Victims of armed conict have a right to reparation from the responsible parties. The ILAs accompanying Commentary elaborates on the principle, stating, Article 6 represents the core principle of the present Declaration. It addresses three issues of the right to reparation: the holder of the right (victims), its content (reparation and the obligated parties (responsible parties).82
77

78

79

80

81

82

Although the mandate of the UNCC does not refer expressly to violations of IHL, in practice they have been taken into account by the commission: Fred Woolridge and Olufemi Elias, Humanitarian Considerations in the Work of the United Nations Compensation Commission (2003) 85 Intl Rev Red Cross 55181. Under the proceedings before the Eritrea-Ethiopia Claims Commission, states bring cases before the commission to obtain compensation on behalf of civilians and soldiers: Agreement Signed in Algiers on December 12 2000 between the Governments of the State of Eritrea and the Federal Democratic Republic of Ethiopia, www.pca-cpa.org. Hofmann, Individual Right to Reparation?, p. 348. Report of the International Commission of Inquiry on Darfur, para. 595. Frulli, When Are States Liable Towards Individuals?, p. 426. Jean-Marie M. Henckaerts and L. Doswald-Beck (eds.), Customary International Humanitarian Law, 2 vols. (Cambridge University Press, 2005), vol. I, pp. 541. Veronika Blkov, Victims of War and their Right to Reparation for Violations of International Humanitarian Law (2007) 4 Miskolc J Intl L 111, 9. Committee on Reparation for Victims of Armed Conict, Reparation for Victims of Armed Conict in ILA Report of the Seventy-fourth Conference (The Hague, 2010) (The Hague: ILA, 2010), Resolution no. 2/2010 (ILA, Reparation for Victims of Armed Conict, Resolution no. 2/2010). Committee on Reparation for Victims of Armed Conict, Reparation for Victims of Armed Conict (Substantive Issues) in ILA Report of the Seventy-fourth Conference (The Hague, 2010) (The Hague: ILA, 2010), Commentary to Art. 6, para. 1, p. 14 (ILA, Reparation for Victims of Armed Conict (Substantive Issues) 2010).

558 responsibility for violations of international law

The rest of the Commentary to the article goes on to substantiate the committees position that individuals have a right to reparation for IHL violations under contemporary international law.83 When it comes to PMSCs, two remarks are apposite. First, we note that in the part of the Montreux Document afrming existing international legal obligations, paragraph 8 says, Contracting States have an obligation to provide reparations for violations of international humanitarian law and human rights law caused by wrongful conduct of the personnel of PMSCs when such conduct is attributable to the Contracting States in accordance with the customary international law of State responsibility. Although this restatement of the obligation does not explicitly conrm individuals as rights-holders, it does not exclude that possibility. Secondly, above, we argued that the special rule in Article 91 AP I regarding state responsibility for acts of members of the armed forces (i.e. that responsibility ows for all acts of members of armed forces, not just for ofcial or ultra vires acts) does not apply to PMSCs that are not integrated into the armed forces of a party to a conict.84 By extension, when it comes to reparations, are individuals limited only to claims against states for violations by members of their armed forces? Or does the right to claim reparation extend to all actors that can be attributed to a party to an armed conict, including PMSCs accompanying armed forces or contracted to other departments or ministries? In our view, the right of individuals to make claims against states for reparations for IHL violations extends beyond the acts of armed forces to all actors that are attributable to it. We submit that the right of individuals to petition for reparations attaches to the nature of the obligation violated that is, obligations under IHL and not just to the categorization of the violator. If a PMSC is attributable to a state under international law, then individuals may make claims based on violations of IHL by that PMSC. That being said, as we noted in our discussion above, for PMSCs not integrated into a states armed forces, only acts done in an ofcial capacity or ultra vires will be attributable to the state, as opposed to any and all acts of a member of state armed forces. 3.1.4 Mechanisms for individual complaints against states under IHL Even if a right to an individual claim for reparation exists, it is procedurally tricky to enforce. The existence of a right does not automatically

83

Ibid., Commentary to Art. 6, pp. 1321.

84

See Ch. 2, section A 2.2 above.

implementation of state responsibility

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create a basis for jurisdiction, either national or international.85 Individuals, of course, cannot be parties to cases before the ICJ. If they wish to bring a suit against another state, the most obvious obstacles are the jurisdictional immunity of states (if claimants try to sue a third state in the courts of their own state)86 or an inability to access the courts of the third states to make a claim.87 Generally, states have immunity in the courts of other states. However, there is an exception to this rule the tort exception which essentially holds that states cannot invoke immunity for tortious acts giving rise to claims for compensation for death or injury in another state.88 There may be, however, a highly relevant exception to that exception that is to say, it is questionable whether the tort exception applies to the acts of armed forces on foreign territory.89 The notion that there is no tort exception to immunity with regard to the acts of armed forces was not inscribed in the 2004 Convention on Jurisdictional Immunities of States and their Properties and was not fully discussed by the ILC during its development of the convention.90 However, it does exist in a different immunities convention91 and two states party to the 2004 Convention

85

86

87

88

89

90 91

The judges of the ICTY observed, The question then is not so much is there a right to compensation but how can that right be implemented. Letter dated 12 October from the President of the International Tribunal for the Former Yugoslavia addressed to the Secretary-General on Victims compensation and participation, UN Doc. S/2000/1063, para. 22. See esp. Gattini, Hurdles to Individuals Claims for War Damages, pp. 35062 for a discussion of state immunity as an impediment to enforcing individual claims. Yal Ronen, Avoid or Compensate? Liability for Incidental Injury to Civilians Inicted During Armed Conict (2009) 42 Vanderbilt J Transnl L 181225, 21718. Ronen notes that Israel makes some exceptions for enemy nationals. See Gattini, Hurdles to Individuals Claims for War Damages, pp. 3513 for a discussion of this rule. Art. 12 of the UN Convention on Jurisdictional Immunities of States and their Property creates an exception for compensation cases relating to death, physical injury or damage to property caused by a state which is acting in the territory of another state. The Commentary to the Draft Articles suggests that this article is meant to cover accidents occurring routinely within the territory of the State of the forum and explicitly states that it is clear that cases of shooting or of ring across a boundary or of spill-over across the border of shelling as the result of an armed conict are excluded from the areas covered by article 12. ILC Draft Articles on Jurisdictional Immunities of States and their Property with Commentaries, p. 45 (para. 7 of Commentary to Art. 12). See Gattini, Hurdles to Individuals Claims for War Damages, pp. 3513 for a discussion of this issue. Ibid. Art. 31 of the 1972 Basle Convention on State Immunity, cited in Gattini, Hurdles to Individuals Claims for War Damages, p. 352.

560 responsibility for violations of international law

declared that that convention does not apply to military activities of the armed forces.92 In a nutshell, then, states may be able to invoke immunity for the acts of their armed forces if these continue to be considered to fall outside the tort exception.93 This was indeed conrmed by the ICJ in Germany v. Italy in 2012.94 Here again, this situation raises the question: what does this mean for PMSCs who are attributable to a state but who are not considered to be members of the armed forces? Do their acts, which would be associated with military activities and armed forces, also benet from state immunity in foreign courts? In our view, there is no reason why the actions of PMSCs who are attributable to a state without being members of the armed forces of that state should automatically be excluded from the tort exception to state immunity, and this position is consistent with existing case law.95 In this sense, it is possible that state immunity may actually be less of a bar to holding states responsible for the acts of PMSCs than it can be for the acts of their own armed forces. State immunity nevertheless remains an issue for implementing state responsibility regarding acts of armed forces: following the recent acceptance by Italian courts of complaints based on Second World War atrocities, Germany asked the ICJ to declare that Italy must ensure that such judgments are unenforceable and must take any and all steps to ensure that in the future Italian courts do not entertain legal actions against Germany founded on the occurrences [of violations of IHL during the occupation of Italy by Germany in the Second World War].96 The remedy that Germany seeks appears to mean that if so ordered Italy should enact legislation prohibiting such claims
92

93

94

95

96

Sweden and Norway, http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_ no=III-13&chapter=3&lang=en. The ECtHR upheld Irelands granting of immunity to the UK with respect to the act of an on-duty UK soldier in Ireland: see McElhinney v. Ireland (App. no. 31253/96) ECHR 2001-XI, 21 November 2001, para. 38 (cited in Gattini, Hurdles to Individuals Claims for War Damages, p. 352). Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) (Judgment) 3 February 2012, paras. 778. A US District Court held, in an Alien Tort Statute case against a PMSC regarding the treatment of Iraqi detainees in Iraq, that a PMSC may be acting under color of law that is, carrying out a public function (necessary to satisfy the requirement of state action to sustain torture allegations) yet not benet from state immunity. See Al Quraishi v. Nakhla, 728 F Supp 2d 702 (D.Md. 2010), at 348. Case Concerning Jurisdictional Immunities of the State (Germany v. Italy) (Application of the Federal Republic of Germany) (December 2008) para. 14, www.icj-cij.org/docket/ les/143/14923.pdf.

implementation of state responsibility

561

since it cannot otherwise control the decisions of its courts regarding their jurisdiction. Indeed, non-justiciability can be a means of implementing state immunity.97 In holding Italy responsible for infringing German state immunity, the ICJ concluded that Italy is under an obligation to achieve this result by enacting appropriate legislation or by resorting to other methods of its choosing having the same effect.98 The possibility for individuals to sue states for reparations is thus not merely contingent on when or whether an individual right to reparation may have crystallized, but is plagued by the procedural bar created by the jurisdictional immunity of states. Indeed, the ICJ dealt exclusively with the procedural aspect of jurisdictional immunity, but reiterated on several occasions the principle that the Court would point out that whether a State is entitled to immunity before the courts of another State is a question entirely separate from whether the international responsibility of that State is engaged and whether it has an obligation to make reparation.99 Furthermore, in domestic courts, the royal prerogative, political act or political question doctrine may impede the adjudication of claims.100 Courts may assess whether an impugned act resulted from the exercise of governmental discretion and show deference to the executive where the exercise of governmental discretion is essential to protect constitutional or political interests.101 Two questions are essential when it comes to PMSCs: rst, whether the exercise of governmental discretion extends to all acts within an armed conict as opposed to merely the decision as to whether to wage war or not; and, secondly, whether the politicalquestion doctrine can be invoked with respect to acts of PMSCs (who are generally not part of the executive power). In Markovi, a case brought in Italian courts by victims of the bombing by NATO of Radio Television Serbia in 1999, the Italian Supreme Court held that domestic courts of the defendant state cannot examine the legality of violations of IHL or international human rights law
97

98

99

100

See Gattini for a different discussion of the relationship between non-justiciability and state immunity, Gattini, Hurdles to Individuals Claims for War Damages, pp. 3623. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) (Judgment) 3 February 2012, para. 137. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) (Judgment) 3 February 2012, para. 100. See also para. 108. See also the powerful dissenting judgment of Judge Canado Trindade in that case. 101 See Frulli, When Are States Liable Towards Individuals?, p. 410, n. 14. Ibid.

562 responsibility for violations of international law

(IHRL) committed in the course of an armed conict.102 On the other hand, in a different case, the Tokyo District Court rejected that approach, stating:
The defendant State tries to exclude the act of atomic bombing from the object of judicial review, by broaching the theory of Act of State (acte de gouvernement). Indeed, such an act as proclamation of war may be an Act of State, but there is no reason why an individual act of hostility is an Act of State.103

Markovi aside, the political-question doctrine seems not to apply to specic acts of war that a state may engage in during the course of a war.104 Some argue that, while the decision of a state to wage a war is generally considered to fall under the political-question doctrine, specic conduct in war should not be immune from scrutiny under the doctrine since such acts should not be considered as political decisions, but rather as executive activities undertaken in the implementation of a previous political decision.105 One US court (seemingly preferring a Markovi approach) has held that the applicability of the political-question doctrine to PMSCs turns on the degree of control the US armed forces exercise over their activities.106 In other states, legislation may immunize the state in its own courts from tort liability relating to combat activities of the armed forces. Whether the acts of PMSCs would be caught by such statutes may turn in part on their ofcial integration into the armed forces; beyond that, it is open to debate.107 The ILA Committee on Reparation for Victims of Armed Conict has divorced the existence of the substantive individual right to reparation
102

103

104

105

106 107

See the full discussion of this case in Frulli, When Are States Liable Towards Individuals?, esp. p. 409. Decision of Tokyo district Court, December 7, 1963, Case no. 2914 (wa) of 1955 and Case no. 4177 (wa) of 1957, 8 (1964) Japanese Annual of International Law, no. 8, 1964, p. 218. See below, section D 2.3 for a discussion of the political-question doctrine in relation to PMSCs under the ATS in the United States. Frulli, When Are States Liable Towards Individuals?, pp. 41012; Pisillo Mazzeschi, Reparation Claims, p. 346. Al Quraishi v. Nakhla, 728 F Supp 2d 702 (D Md 2010), at 16. See Yal Ronen, Israel: Going Private: The Use and Regulation of Private Military and Security Companies in Situations of Armed Conict in Christine Bakker and Mirko Sossai (eds.), Multilevel Regulation of Military and Security Contractors (Oxford: Hart Publishing, 2012), pp. 4523 for a brief discussion of the Israeli Civil Tort Law (Liability of the State) 1952, Arts. 1 and 5.

implementation of state responsibility

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from the procedural issues of enforcing it, indicating a preference to await the decision of the ICJ in the Germany v. Italy case before drafting a declaration.108 However, it is worthy of note that the committee will draft, in addition to a declaration regarding procedural issues of a right to reparation, a Model Statute of an ad hoc International Reparation Commission.109 As we have noted above, in some cases, special mechanisms such as claims commissions have been set up to deal with individual claims following armed conicts.110 The ILA Committee is thus not alone in proposing the creation of a permanent body capable of handling such complaints.111 In summary, there is a right to reparation for individuals, but barriers to jurisdiction make it difcult to implement that right. It is important to recall, however, that judicial bodies entrusted with the task of monitoring human rights treaties may be competent under specic rules to order states to pay reparations to victims.112 To the authors knowledge, no individuals have sought to claim reparations from a state for violations of IHL committed by PMSCs contracted by that state. Admittedly, such a case is likely to be a costly and complex endeavour. Nevertheless, this option should not be too easily derided, for, even though reparations are often about compensation, and claims led directly against deep-pocketed PMSC rms may seem slightly more straightforward, making claims against states may have the added benet of reasserting the responsibility of states for the actions of PMSCs.
108

109

110

111

112

ILA, Reparation for Victims of Armed Conict (Substantive Issues), 2010. Another impediment that has been cited in relation to procedural bars to individual claims for reparations is the existence of mass violations or mass claims. Schwager, Right to Compensation, pp. 4358. See ILA Reparation for Victims of Armed Conict, Resolution no. 2/2010, last preambular paragraph. Preliminary work on this can be seen in Committee on Reparation for Victims of Armed Conict, Compensation for Victims of War in ILA Report of the Seventy-third Conference (Rio de Janeiro 2008) (Rio de Janeiro: ILA, 2008), p. 500 ff. The United Nations Compensation Commission dealt with individual claims arising out of the invasion of Kuwait by Iraq in 1990. The Eritrea-Ethiopia Claims Commission dealt with individual complaints but used a mass-claims approach via submission by the respective states. See esp. L. Zegveld and J. Kleffner, Establishing an Individual Complaints Procedure for Violations of International Humanitarian Law (2000) Ybk Intl Humanitarian L 384 401; M. Kamminga, Towards a Permanent International Claims Commission for Victims of Violations of International Humanitarian Law (2007) 25 Windsor Ybk of Access to Justice. See, inter alia, Art. 41 ECHR; Art. 63(1) ACHR.

564 responsibility for violations of international law

3.1.5 Ex gratia compensation and reparations? Before concluding our discussion on the existence of an individual right to reparation for IHL violations and the impediments to and means of implementing it, however, it is important to provide some context in terms of compensation payments states make to persons who have suffered damage or loss in armed conicts through the actions of their armed forces. Compensation for damages suffered in the context of armed conict by foreign forces is not limited to situations of violations of IHL or human rights. In fact, from a strategic point of view, it may be crucial that civilians be compensated immediately following an event leading to civilian casualties (and/or damage to property) even when there was no violation of IHL or at least no obvious or proven violation. With regard to actions by US forces, for example, individuals may make claims relating to non-combat-related damage or loss under the US Foreign Claims Act.113 Many Iraqis led such claims and received varying amounts of compensation during the recent conict.114 At times, the United States also grants compensation for casualties arising out of a combat situation and when no violation of IHL is alleged.115 Other states provide similar ex gratia or solatia payments.116 In Afghanistan, NATO has set up an International Security Assistance Force (ISAF) Post Operations Humanitarian Relief Fund in order to provide quick humanitarian assistance in the immediate aftermath of signicant ISAF operations.117

113 114

115

116

117

10 USC 2734. See the database of claims published on line by the American Civil Liberties Union, www. aclu.org/human-cost-civilian-casualties-iraq-afghanistan. The awards possible have been revised upwards over the years. See esp. Army Bates 3535035350 summary of event and payment, www.aclu.org/natsec/ foia/pdf/Army35350_35350.pdf. While no payment of compensation for combat-related casualties or damage may be made under the Foreign Claims Act (10 USC 2734), in practice Judge Advocate Generals or others have discretion to decide whether a condolence payment is appropriate. These payments are called solatia for US armed forces. See US Government Accountability Ofce, Military Operations: The Defense Departments Use of Solatia and Condolence Payments in Iraq and Afghanistan (23 May 2007) GAO07699, p. 32 (US Government Accountability Ofce, Military Operations). E.g. over a two-year period, Canada made ex gratia payments and payments on claims against the Crown in Afghanistan amounting to a total of more than CAD 650,000 in relation to more than 200 claims. See D. Moore, Canada paid $650K in Damages to Afghan Civilians, The Globe and Mail (Toronto), 6 September 2010. See also Ronen, Avoid or Compensate, pp. 21315 for a discussion of these types of payments. NATO, Afghanistan Brieng (2008), p. 5, www.europarl.europa.eu/meetdocs/2009_2014/ documents/sede/dv/sede250110natoroleafghanistan_/sede250110natoroleafghanistan_ en.pdf.

implementation of state responsibility

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Specically with respect to PMSCs, the US Department of State set up a Claims and Condolence Payment Program to make payments to Iraqi civilians in relation to deaths, injuries or damages arising out of the actions of private security contractors carrying out personal security details.118 Under that programme, By accepting payment, [the] claimant releases the U.S. government, and its employees and contractors, from future liability or claims.119 There are apparently no written policies or procedures for that programme; to the authors knowledge, as of October 2012, no comparable programme existed in Afghanistan.120 These kinds of claims are evaluated on the basis of documentation submitted by the claimant directly to the armed forces on the ground (or the US Department of State) following an incident and may be supported by an investigation. For many civilians who suffer loss or damage in armed conict, these mechanisms of compensation may be the most relevant precisely because they do not depend on a violation of IHL or human rights (or a decision that such a violation has occurred) in order to be awarded. Thus, although they are open to criticism as ad hoc mechanisms which depend largely on the will of states to create them as there is arguably no obligation under international law to pay compensation for damages suffered through lawful acts of war121 they may be an important source of compensation for civilians.122 They are not, however, reparations in the sense we mean here. In order for a payment of compensation to be a reparation, there must be a nding or an acknowledgement of fault.123 Where these programmes especially overlap with our focus here is when they relate to incidents that may amount to violations of human rights or IHL but where, by accepting compensation, the individuals have agreed to waive any rights in relation to the liability of PMSCs or the contracting state regarding any future claims stemming from the same event.

118 120 121

122

123

119 US Government Accountability Ofce, Military Operations, p. 51. Ibid. Ibid., p. 52. See Ronen, Avoid or Compensate, pp. 181225 for an argument in favour of imposing strict liability for incidental injuries occurring as a result of lawful military attacks. See J. Tracey, Responsibility to Pay: Compensating Civilian Casualties of War (2007) 15 Human Rights Brief 1619. See also complaints of Afghans regarding the inadequacy of compensation payments following a campaign of house destructions due to the dangers of improvised explosive devices: T. Shah and R. Nordland, To Save Lives, NATO is Razing Booby-trapped Afghan Homes, New York Times, 16 November 2010. There are many situations in which compensation payments are made in the absence of a nding of fault, be they ex gratia payments or other indemnities.

566 responsibility for violations of international law

3.2 Implementation of the right to reparation for violations of IHL before human rights mechanisms Individuals may bring complaints before various human rights tribunals. For our purposes, the essential question is whether individuals can use such mechanisms to make claims for IHL violations by PMSCs that are attributable to states.124 Human rights monitoring bodies are all established to implement a specic convention.125 No claim can be based on the violation of a treaty which the judicial or quasi-judicial institution is not authorized to monitor. Therefore, judicial bodies created by states to monitor human rights cannot pronounce a judgment to the effect that a state has violated IHL without going beyond the will of the states that created them, creating supplementary obligations for states without their consent.126 Once a claim is based on human rights, IHL may nonetheless be used in many ways in the decisions of a court. First, IHL and human rights can protect the same rights. For instance, an act of torture violates both IHL and IHRL when it is committed during a period of armed conict. Therefore, a prisoner of war (POW) who is subjected to acts of torture by an employee of a PMSC during an armed conict may lodge a complaint (against the state responsible) before a competent human rights body. The complainant would rely on the provisions of IHRL violated (as the state may not derogate from the prohibition of torture).127 However, the complainant cannot, despite their same substance, substitute the IHL norm to that of the human rights convention.128 This works well when the normative content of the provisions violated is the same, both in IHL and in IHRL.129 The Inter-American Court of Human Rights (IACtHR) has gone so far as to observe that the unlawful act under IHRL was also
124

125 126

127 128

129

As noted above, the UN HRC has already made recommendations to at least two states with regard to PMSCs. To sustain a complaint, a complainant will have to show that a PMSC is attributable to a state according to the appropriate test for that tribunal. E.g. the ECtHR is established to monitor the implementation of the ECHR by its parties. E. J. Buis, The Implementation of International Humanitarian Law by Human Rights Courts: The Example of the Inter-American Human Rights System in R. Arnold and N. Qunivet (eds.), International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (Leiden/Boston: Martinus Nijhoff, 2008), p. 277. Ibid., p. 290. Liesbeth Zegveld, Commission interamricaine des droits de lhomme et droit international humanitaire: commentaire sur laffaire de Tablada (1998) 38 Intl Rev Red Cross 54350, 547. Buis, Implementation of IHL by Human Rights Courts, p. 287. Zegveld, Commission interamricaine, p. 546: La comptence pour appliquer le droit international humanitaire pourrait tre tire du recoupement entre les normes substantielles de la Convention amricaine et des Conventions de Genve de 1949.

implementation of state responsibility

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in contradiction with IHL.130 However it refrains from nding that there has been a violation of the IHL convention. As such statements are made obiter dicta, they do not pose a problem regarding the competence of the court. For its part, the European Court of Human Rights never refers to the substance of IHL obligations.131 A trickier question is whether human rights treaty monitoring bodies may take IHL rules into account even when their content differs from a rule of the relevant human rights provision. First, under general human rights instruments, most human rights, except the most fundamental ones belonging to the hard core, may be derogated from in states of emergency, to the extent required by the exigencies of the situation, and if that derogation is consistent with other international obligations of the derogating state.132 IHL contains some of those other international obligations. Therefore, when confronted with derogations admissible under human rights instruments in times of armed conict, the implementing bodies of IHRL must check whether those measures are compatible with IHL. If they are not, they also violate IHRL. Secondly, according to Article 31(3)(c) of the Vienna Convention on the Law of Treaties between States, to interpret the terms of a treaty one must also take into account any other relevant rules of international law applicable between the parties. In such circumstances, IHL can be used to interpret IHRL if the IHL provisions have a normative added value, such as in the context of armed conict.133 Therefore, human rights
130

See e.g. IACtHR, Bmaca Velsquez v. Guatemala, Judgment, Series C, no. 70, 25 November 2000, at 208. According to the Court: Although the Court lacks competence to declare that a State is internationally responsible for the violation of international treaties that do not grant it such competence, it can observe that certain acts or omissions that violate human rights, pursuant to the treaties that they do have competence to apply, also violate other international instruments for the protection of the individual, such as the 1949 Geneva Conventions and, in particular common Article 3. [Emphasis added] Marco Sassli, La Cour europenne des droits de lhomme et les conits arms in S. Breitenmoser et al. (eds.), Human Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber (Zrich: Dike, 2007), pp. 70931. Art. 4(1) ICCPR, Art. 15(1) ECHR and Art. 27(1) ACHR. The ECtHR explicitly refuses to cite specic articles of IHL treaties, but its reasoning borrows much substance from IHL. On the ECtHR and IHL, see Sassli, La Cour europenne des droits de lhomme et les conits arms, pp. 70931; Aisling Reidy, The Approach of the European Commission and Court of Human Rights to International Humanitarian Law (1998) Intl Rev Red Cross 51329; Jean-Franois Flauss, Le Droit international humanitaire devant les instances de contrle des conventions europennes

131

132 133

568 responsibility for violations of international law

bodies can use IHL to interpret the rights contained in the conventions they are responsible for monitoring.134 Initially, the Inter-American Commission on Human Rights claimed to be authorized to pronounce itself rather generally on violations by states parties to the Inter-American Convention.135 However, the case law of the Inter-American Court of Human Rights has made a clear distinction between the basis of its jurisdiction and the applicable law before it. The Court declared that it can only decide claims based on the Inter-American Convention.136 In recent decisions, the Commission seems to have departed from its rst decisions by which it considered that it was authorized to monitor the application of IHL treaties.137 Although the Court and Commission have on occasion observed (in obiter dicta) that the act which is unlawful under IHRL is also unlawful under IHL, their decisions are always based on violations of the Inter-American Convention.138 As indicated above, reparations that may be obtained by an individual victim of IHL violations from an IHRL organ will not be based upon IHL, but on

134

135

136

137

138

et interamricaine des droits de lhomme in J. F. Flauss (ed.), Les Nouvelles Frontires du droit international humanitaire. Actes du colloque du 12 avril 2002 organis par lInstitut dtudes de droit international de lUniversit de Lausanne. Ouvrage ddi au Professeur Mathias-Charles Krafft (Brussels: Bruylant, 2003), pp. 11733. Coard and ors v. United States, Report no. 109/99, Case no. 10.951, 29 September 1999, para. 23. According to the commission, an acceptable result is one that integrates humanitarian law (particularly the four Geneva Conventions) with the legal system of human rights (as exemplied in the present case by the American Declaration), leading to the application of the latter, and permitting indirect control of the former. See Schwager, Right to Compensation, p. 434. Buis, Implementation of IHL by Human Rights Courts, p. 293; Jean-Marie Henckaerts, Concurrent Application of International Humanitarian Law and Human Rights Law: A Victim Perspective in R. Arnold and N. Qunivet (eds.), International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (Leiden/Boston: Martinus Nijhoff, 2008), p. 265. See Juan Carlos Abella v. Argentina, Report no. 55/97, Case no. 11.137, Argentina, OEA/ ser/L/V/II.98. See Zegveld, Commission interamricaine, pp. 54350. See also the classic case, IACtHR, Las Palmeras case, Judgment, Series C, no. 90, 6 December 2001, paras. 323. Sharing this conclusion, Buis, Implementation of IHL by Human Rights Courts, p. 283; Lindsay Moir, Decommissioned? International Humanitarian Law and the InterAmerican Human Rights System (2003) 25 Human Rights Q 182213, 212. E.g. in the Riofro Massacre case, although the petitioners asked the commission to assert the responsibility of Colombia for violations both under HRL and IHL, the Court considered that the murder of thirteen civilians was a violation of Art. 4 ACHR, without making any reference to Art. 3 common to the Geneva Conventions: Riofro Massacre (Colombia), Report no. 62/01, Case no. 11.654, 6 April 2001, OEA Ser. L/V/II.111, Doc. 20 Rev. (2000), para. 58.

implementation of state responsibility

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parallel rules of IHRL which do not disappear in armed conicts. As a minimum however, even where an IHL rule is applicable, the IHRL rule may still be applied by an IHRL body. All in all, for a victim of IHL to be able to lodge a successful claim before human rights bodies, two obstacles stand in the road. First, there is a need to establish that the court in question has jurisdiction over the acts, meaning that the victim was under the jurisdiction of a state party to a human rights convention, especially if the facts of the case deal with acts occurring extraterritorially.139 This is why some authors consider that the requirement of jurisdiction reduces the scope of cases in which human rights bodies are effective means of implementation of IHL.140 Secondly, it needs to be established that the right violated in IHL also exists in IHRL. When this is the case, the court may be able to accept the claim of any victim to reparation, basing its nding on a violation of the human rights treaty. In any case, domestic tribunals are competent to deal with violations of IHRL under their domestic law. In such cases, the plaintiff can bring a claim before a domestic court generally before bringing the case before an international tribunal. To the authors knowledge, no one has yet brought a claim specically regarding the acts of a PMSC in an armed conict situation before a human rights tribunal.141 Providing the company or PMSC employee can be attributed to the state in question (according to the law of the tribunal in question), such tribunals may indeed be an effective way to enforce the responsibility of PMSCs for violations of international law.
139 140

141

On the extraterritorial application of human rights treaties, see Ch. 2 section E 2.2 above. For Rainer Hofmann, the requirement of jurisdiction limits the ability of human rights tribunals to be considered as an effective means of implementation of IHL: Human Rights Treaty Bodies and their Potential Role in Monitoring in W. Heintschel von Heinegg and V. Epping (eds.), International Humanitarian Law Facing New Challenges: Symposium in Honour of Knut Ipsen (Berlin: Springer, 2007), pp. 26972. See also G. C. Bruno, Collateral Damages of Military Operations: Is Implementation of International Humanitarian Law Possible Using International Human Rights Tools 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), p. 306. In Whiteld and ors v. UK (App. nos. 46387/99, 48906/99 and 57419/00) ECHR 12 April 2005, the ECtHR dealt with a complaint regarding a decision made in a privately run prison; however, the Court observed that the person responsible for the decision was a Crown employee. See para. 35. One case before the IACHR mentions allegations of torture by members of a private security company, but it appears that that particular claim was abandoned. See IACHR, 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), para. 48 (and accompanying footnotes) mentions the allegations and the complaint but it appears that the commission has not yet processed that case.

570 responsibility for violations of international law

Implementing the responsibility of states for the acts of PMSCs that are attributable to them is possible, but this section shows that demonstrating the imputability of their acts is by no means the only hurdle that stands in the way. The existence of the states jurisdiction needs to be proved and individuals may need to convince a court of their right to pursue reparation in their own name and even then may have to overcome issues such as state immunity. Human rights treaty bodies with review procedures and individual complaints mechanisms may offer a viable alternative means to hold states responsible for acts of PMSCs, including IHL violations where parallel rights exist.

The means by which states can regulate the conduct and dene the legal responsibility of PMSCs

States have two obvious tools at their ngertips to govern the conduct and dene the legal responsibility of PMSCs (individuals and companies): regulatory frameworks and domestic criminal laws. In the following pages we will provide a brief overview of both (interlinking) mechanisms. Not only do academics, human rights specialists and practitioners advocate that states regulate the industry, but some representatives of PMSCs or PMSC trade associations have also called for regulation.142 An enormous amount has been written on the subject covering everything from the need and/or obligation to regulate PMSCs through to detailed recommendations of what regulatory frameworks should include.143
142

143

Indeed, some industry representatives double as academics and recommend regulation: see J. Hakala, Why Regulate Manned Private Security? A Report on the Reasons and Requirements for Private Security Regulation as Expressed by Representatives of Governments, Industry Associations and Academics (1 February 2008), hwww.coess.org/ _Uploads/dbsAttachedFiles/Why_regulate_manned_private_security.pdf. This report deals primarily with domestic private security providers but appears to recognize the porous boundaries between private security and private military companies and calls for regulation of all. See esp. at pp. 15, 37, 43. Andrew Bearpark, Director General of the British Association of Private Security Companies, supports a whole series of regulations and legislations at the voluntary level, at the national and international levels. Toni Pfanner, Interview with Andrew Bearpark (2006) 88 Intl Rev Red Cross 449, 456. See also S. Ranganathan, Between Complicity and Irrelevance? Industry Associations and the Challenge of Regulating Private Security Contractors (2010) 41 Georgetown J Intl L 303376, 3267. F. Schreier and M. Caparini, Privatising Security: Law, Practice and Governance of Private Military and Security Companies, Geneva Centre for the Democratic Control of Armed Forces, Occasional Paper no. 6 (Geneva, March 2005), pp. 10340; C. Holmqvist,

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It is obvious that regulatory frameworks can govern the conduct and dene the legal responsibility of PMSCs, and many authors have suggested intelligent and astute mechanisms for making such regulations effective.144 We will therefore conne our discussion to several key points.

1 International regulation
Many lament the lack of an international treaty regulating PMSCs, especially given their nature as multinational enterprises that can easily relocate to states with weak regulatory regimes.145 Of course, one way of regulating the conduct of PMSCs would be for states to agree to an

144

145

Private Security Companies: The Case for Regulation, SIPRI Policy Paper no. 9 (2005), pp. 4259; Michael Cottier, Elements for Contracting and Regulating Private Security and Military Companies (2006) 88 Intl Rev Red Cross 63763; D. Desai, Have Your Cake and Eat It Too: A Proposal for a Layered Approach to Regulating Private Military Companies (2005) 39 U San Francisco L Rev 825; Michael Caparini, Regulating Private Military and Security Companies: The US Approach in A. Alexandra, D.-P. Baker and M. Caparini (eds.), Private Military and Security Companies: Ethics, Policies and CivilMilitary Relations (Abingdon: Routledge, 2008), pp. 17188; Michael Caparini, Domestic Regulation: Licensing Regimes for the Export of Military Goods and Services in S. Chesterman and C. Lehnardt (eds.), From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford University Press, 2007), pp. 15878; Deborah Avant, The Emerging Market for Private Military Services and the Problems of Regulation in Chesterman Lehnardt (eds.), From Mercenaries to Market, pp. 18195; J. Cockayne, Make or Buy? PrincipalAgent Theory and the Regulation of Private Military Companies in Chesterman and Lehnardt (eds.), From Mercenaries to Market, pp. 196216; Elke Krahmann, Regulating Private Military Companies: What Role for the EU? (2005) 26 Contemporary Security Policy 10325; C. Kinsey, Regulation and Control of Private Military Companies: The Legislative Dimension (2005) 26 Contemporary Security Policy 84102. See also J. Cockayne et al., Beyond Market Forces: Regulating the Global Security Industry (New York: International Peace Institute, 2009) for a work categorizing and describing various possible regulatory systems for PMSCs. See the works cited above, in note 143, in particular Caparini, Domestic Regulation, pp. 15878, and Cottier, Elements for Contracting and Regulating PMSCs, pp. 63763. See also 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), pp. 21738. See Holmqvist, Private Security Companies, p. 54. For a time, the academic discussion on regulation was hampered by a focus on the ability of the international conventions on mercenaries to regulate PMSCs. Indeed, as Ch. 4 above shows, the issue as to whether PMSCs are or are not mercenaries in the legal sense of the term does not mean that their regulation is not affected by existing international law. See Lindsey Cameron, Private Military Companies: Their Status under International Humanitarian Law and its Impact on their Regulation (2006) 88 Intl Rev Red Cross 57398, 582.

572 responsibility for violations of international law

international convention setting limitations on what PMSCs may do. At present, there are two international bodies working on or contemplating the drafting of a PMSC treaty. In the UN, the Working Group on Mercenaries prepared a draft convention on PMSCs which it presented to the Human Rights Council in September 2010. The draft convention included provisions that would require state parties to develop and adopt national legislation to adequately and effectively regulate the activities of PMSCs.146 A signicant part of the draft convention is devoted to outlining detailed requirements of such legislation, including licensing, registration and oversight mechanisms.147 The draft convention was not adopted by the council; instead, it passed a resolution establishing an open-ended intergovernmental working group tasked to consider the possibility of elaborating an international regulatory framework, including, inter alia, the option of elaborating a legally binding instrument.148 While the failure to adopt the draft convention does not necessarily signal a death knell for a UN Convention on PMSCs, the mandate of the open-ended intergovernmental working group could hardly be more loosely dened.149 Moreover, support for the draft convention and even for the establishment of the intergovernmental group lacked the support of Western states that rely heavily on PMSCs.150 On a regionalinternational level, the Parliamentary Assembly of the Council of Europe adopted a recommendation that the Committee of Ministers should draw up an instrument on PMSCs, including dening elements of a registration and licensing scheme.151 Consequently, the
146 147 148

149

150

151

Proposed Art. 12, UN Doc. A/HRC/15/25, p. 27. Proposed Arts. 1318, pp. 2730, UN Doc. A/HRC/15/25. UN Doc. A/HRC/RES/15/26, para. 4, adopted 1 October 2010, Draft Resolution: A/HRC/L.22. The full mandate of that group is to consider the possibility of elaborating an international regulatory framework, including, inter alia, the option of elaborating a legally binding instrument on the regulation, monitoring and oversight of the activities of private military and security companies, including their accountability, taking into consideration the principles, main elements and draft text as proposed by the Working Group. A/HRC/RES/15/26, para. 4. The voting record shows thirty-two in favour, twelve against and three abstentions. Those states voting against include: Belgium, France, Hungary, Japan, Poland, Spain, UK and the United States. Switzerland, the initiator of the Montreux Document, abstained. 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) (Montreux Document). Council of Europe, Parliamentary Assembly, Recommendation 1858 (2009), Private Military and Security Firms and Erosion of the State Monopoly on the Use of Force

state regulation of conduct of pmsc s

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Venice Commission explored the feasibility and potential benets of drafting a PMSC convention for European states.152 Despite its wouldbe genesis as a regional instrument, the possibility to open such a treaty for ratication by non-European states and in particular by the United States was considered.153 In the end, however, concerns about the difculty of drafting a treaty that would be compatible with the existing network of international legal obligations (in particular of EU states) and the fact that the drafting of provisions regarding criminal law and civil law obligations would be technically difcult and timeconsuming led the commission to counsel against pursuing a treaty option for the time being.154 International regulation of PMSCs through an international convention is thus not to be expected in the immediate future.155 In terms of existing international conventions, the UN and Organization of African Unity (OAU) Conventions on Mercenaries have frequently been discussed in light of PMSCs with a view to assessing their capacity to regulate or prohibit the industry and the individuals. As we conclude (along with the vast majority of authors) that, by and large, PMSCs do not meet the legal denition of mercenaries set down in the conventions, and given that none of the major PMSC-user-states are parties to those conventions, we must further conclude that the existing mercenary conventions play at best only a marginal role in regulating the industry.156 Some authors have argued that PMSCs could be regulated at the international level by these conventions if states would just agree to change the denition of a mercenary under international

152

153 154

155

156

(29 January 2009), paras. 12 and 13. This recommendation was made on the basis of reports by the Political Affairs Committee and the Ofce of Legal Affairs. See Venice Commission (Council of Europe), Report on Private Military and Security Firms and Erosion of the State Monopoly on the Use of Force, CDL-AD (2009) 38, Study no. 531/2009 (29 June 2009). Ibid., paras. 14 and 15. Ibid., paras. 66, 61 and 57. For a discussion of other aspects of European law and policy that could regulate aspects of the industry, see Krahmann, Regulating Military and Security Services, pp. 11318. In terms of other regional bodies, Holmqvist notes that the AU currently has a limited institutional capacity to address the use of PSCs. Holmqvist, Private Security Companies, p. 55. See also A. Bailes, Private Military and Security Companies, the European Union, and Regulation as a Tool for Efciency (2008) 26 Sicherheit und Frieden/Security and Peace 196201. See Ch. 1, section A 5 above.

574 responsibility for violations of international law

law.157 This approach, however, is unlikely to be pursued158 and even if it were to occur, we are not convinced it would be fruitful. We would be remiss to conclude our discussion on international mechanisms regulating the industry if we did not mention the Montreux Document.159 The Montreux Document is not a treaty, but it does afrm international legal obligations of states and sets out detailed regulatory good practices for the group of states that have signed it. The process by which the Montreux Document was drafted and nally endorsed in itself provides an interesting example for regulating actors such as PMSCs. Even though only states may sign the document, much of the early negotiation was a multi-stakeholder process, including persons from industry, non-government organizations (NGOs) and academia. Moreover, even government representatives participating in the process hailed from a variety of government departments so as to ensure competence in creating appropriate good practices.160 Although it is not a binding instrument, if states were to follow the good practices they have agreed to set down in a semi-formal text, one could argue the document inspires or underpins regulation of PMSCs. The fact that it has been signed by states with the highest user-rate of PMSCs and the inclusion of some PMSCs themselves in the consultation and drafting processes may bode well for respect of the principles and good practices enshrined in it. As Cockayne points out, however, the Document proves unwieldy and has notable lacunae as a guide for PMSCs as to the conduct they ought to engage in.161 Moreover, as any international endeavour, it remains dependent on the will of states to be an effective tool for the regulation
157

158

159

160 161

See e.g. E. Fry, Private Military Firms in the New World Order: How Redening Mercenary can Tame the Dogs of War (2005) 73 Fordham L Rev 260764. She proposes to redene mercenaries so that PMSC contractors fall within the denition of a mercenary and are criminalized under the UN Mercenary Convention. See also Sarah Percy, Mercenaries: Strong Norm, Weak Law (2007) 61 Intl Organization 36797. 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 40128; J. Gomez del Prado, Private Military and Security Companies and the UN Working Group on Mercenaries (2008) 13 J Conict & Security L 42950, esp. 441 50; L. Balmond, Observations sur le document de Montreux relatif aux obligations juridiques internationales pertinentes et aux bonnes pratiques pour les Etats concernant les activits des socits militaires prives (2009) 113 Revue gnrale de droit international public 11324; M. L. Tougas, Some Comments and Observations on the Montreux Document (2009) 12 Ybk Intl Humanitarian L 32145. Cockayne, Regulating Private Military and Security Companies, pp. 41920. Ibid., p. 427.

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of PMSCs, which is both its greatest strength and weakness.162 Nevertheless, the fact that the UK, following its consultative process, determined that the best way of regulating PMSCs is through support of self regulation despite the apparent preference of the Montreux Document for a more formal licensing and authorization system shows that without binding legal obligations, states will continue to do as they see t.163 Finally, international criminal law may be considered a component of the international regulatory framework of PMSCs. It will be discussed in more detail below.

2 National regulation
Few states have regulations and regulatory frameworks addressed specifically to PMSCs.164 Before decrying a total lack of regulation of the PMSC industry on a national level, however, we would do well to recall that many states do in fact regulate one aspect of the industry, which is private security providers.165 While it is true that the types of private security companies regulated within states are most often not the same as those
162 163

164

165

See also ibid., p. 4258 for an appraisal of some of the strengths and weaknesses. Point 54 of the Montreux Document says that home states should consider establishing an authorization system. The UK did consider doing that in its consultative process, so in this respect it has met the standard of the good practice set out in the document. The more detailed good practices relating to what a licensing regulatory framework of a home state should include seem to indicate a preference for a formal licensing system. 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). Schreier and Caparini, Privatising Security, pp. 10415. A good portion of the academic and policy literature discussing the components an ideal regulatory framework should include was written based on the UKs Green Paper on regulating PMSCs in the early 2000s, Private Military Companies: Options for Regulation (2002), www.publications. parliament.uk/pa/cm200102/cmselect/cmfaff/922/92202.htm. See UN Working Group on the use of mercenaries, Regional Consultation for Africa on the Activities of Mercenaries and Private Military and Security Companies: Regulation and Monitoring 34 March 2010, UN Doc. A/HRC/15/25/Add.5, 2 June 2010, para. 29; UN Working Group on the use of mercenaries, Regional Consultation for Asia and the Pacic on the Activities of Mercenaries And Private Military and Security Companies: Regulation and Monitoring (2627 October 2009), UN Doc. A/HRC/15/25/Add.4, 1 April 2010, para. 14; Venice Commission (Council of Europe), Report on Private Military and Security Firms and Erosion of the State Monopoly on the Use of Force, CDL-AD (2009) 38, Study no. 531/2009 (29 June 2009), para. 38. See also Krahmann, Regulating Military and Security Services, pp. 10910; H. Born, M. Caparini and E. Cole, Regulating Private Security in Europe: Status and Prospects, Geneva Centre for the Democratic Control of Armed Forces, Policy Paper no. 20 (2007); On the other

576 responsibility for violations of international law

that export their services to conict zones, this regulation is nonetheless important. Indeed, in Afghanistan, ISAF and US forces have contracted with local Afghan private security companies, which fall within the scope of actors of concern in our study. A regulatory framework (discussed below) for those rms is thus highly relevant to implementing IHL obligations.166 Regulatory frameworks for PMSCs on a national level are frequently discussed in light of the facets of the Montreux Document: those pertaining to contracting states, territorial states and home states. This is a logical approach since the same rm may offer a variety of services, rendering a regulatory division according to services cumbersome or likely to produce gaps. We have argued above that states do not necessarily have to adopt a specic law governing PMSCs in order to meet their due diligence obligations under international law.167 Indeed, a single law may be incomplete whereas a web of legislation, even without a law specically aimed at PMSCs, may allow for more comprehensive regulation of this multifaceted industry. On the other hand, relying on a number of different laws and regulations may make gaps trickier to identify.168 As we have already discussed various elements of the content of regulatory schemes for controlling PMSCs,169 we will conne our comments to observations regarding regulation as a means of implementing states obligations and dening the responsibility of PMSCs. The primary concern driving home states to regulate PMSCs may be the possibility of rms selling military services to foreign governments and affecting the foreign policy (or the international obligations) of the
hand, the PSC industry is not comprehensively regulated in the United States: Schreier and Caparini, Privatising Security, p. 106. See also: www.privatesecurityregulation.net. Regulating local private security companies in Afghanistan has not been an easy task: see S. Brooking and S. Schmeidl, When Nobody Guards the Guards: The Quest to Regulate Private Security Companies in Afghanistan (2008) 26 Sicherheit und Frieden/Security and Peace 20814. In post-conict environments, local private security companies may also experience a boom, prompting the adoption of regulations, such as in Liberia and Sierra Leone. See A. Ebo, Private Actors and the Governance of Security in West Africa in A. Alexandra, D.-P. Baker and M. Caparini, Private Military and Security Companies: Ethics, Policies and Civil-Military Relations (Abingdon: Routledge, 2008), pp. 141, 1512. See Ch. 2, section E above. See also Caparini, Regulating Private Military and Security Companies, pp. 1713, citing a lack of clarity of rules governing PMSCs as a reason for developing and improving regulation. See esp. Ch. 3, section A 2.5 above on internal legal mechanisms; see also Ch. 2, section E above on due diligence.

166

167 168

169

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home state.170 Consequently, the regulation of PMSCs may occur through the general export controls over military goods and services of home states, as is the case in the United States.171 While this means that PMSCs selling their services to the US government may not be subject to the same legislation as those exporting to other governments, Deborah Avant observes that [b]ecause US PSCs sell the same services abroad that they sell to the US government, there are market incentives to stay in step with US [export] policy.172 Indeed, if this were not the case, there could be a gap in that PMSCs selling services to the government of the state in which they are registered would possibly only be covered by the general regulatory framework for establishing a business in that state. Export regulatory frameworks may include multiple layers of registration and licensing, including requiring an operating licence renewable on an annual basis (subject to demonstrating that they meet specic conditions), a further licence to be able to export certain goods and services and licences for specic contracts. South Africa has adopted legislation prohibiting legal and natural persons (including foreigners) from providing assistance or services in countries in which there is an armed conict without obtaining a licence to do so;173 however, the licensing scheme set out in the Act is only skeletal in form174 and regulations have not yet been adopted to implement it.175 The Act does set out offences and penalties and establishes a legal basis for extraterritorial criminal

170

171

172 173

174

175

E.g. the Sandline affair and its impact on UK foreign policy was the trigger for serious consultation on PMSCs in the early 2000s. The UK government, on the other hand, decided not to establish a regulatory framework for PMSCs (n. 160 above). In addition, existing UK arms export laws do not cover the export of military services: Deborah Avant, The Market for Force (Cambridge University Press, 2005), p. 170. Avant, The Market for Force, p. 155. Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conict Act 27 of 2006 (16 November 2007), Government Gazette vol. 509, no. 30477, s. 3. This law repeals the Regulation of Foreign Military Assistance Act 1998 (Act no. 15 of 1998). However, the new law suffers from problems of implementation, in part due to a lack of implementing regulations. See F. Slamdien, South Africa: Nations Mercenary Legislation Remains Toothless, Allafrica.com, 29 November 2010, http:// allafrica.com/stories/201011290794.html. E.g. the Act designates the committee responsible for reviewing applications (ss. 1 and 7), establishes criteria for refusing to grant licences (s. 9), and indicates the responsibility of the committee to set up a register (s. 8). UN Working Group on Mercenaries, South Africa Should Pursue Efforts to Strengthen Regulatory Framework for Private Military and Security Companies, Say UN Experts, 19 November 2010, www2.ohchr.org/english/issues/mercenaries/.

578 responsibility for violations of international law

jurisdiction with respect to offences under the Act.176 However, South Africa exemplies the fact that clear legislation regulating PMSCs is insufcient or insignicant if it is not diligently implemented. Schreier and Caparini point to the fact that, under the previous (similar) legislation regulating PMSCs, two South African PMSCs with contracts for services requiring authorization in Iraq in 2005 operated with impunity despite a lack of formal approval for those contracts and one company did not even apply for approval.177 These examples illustrate export laws as a means for home states to regulate PMSCs, but of course, nothing impedes home states from regulating regarding the services PMSCs sell to the home state government.178 The United States and South Africa are widely cited as examples since they are the only states with national legislation that clearly regulates the export of PMSC services.179 A regulatory framework for contracting states, on the other hand, may be composed of different elements and address different actors primarily, the government itself. First, legislation can set standards, limits and requirements regarding the services that various branches of government are permitted to acquire by contract with a private-sector rm. Thus, while the government is in effect regulating itself and its own agents by circumscribing their powers to outsource, those regulations will have an impact on PMSCs, which will seek to conform to those standards in order to win lucrative contracts. Therefore, while contracting states obviously cannot control other states legislation setting out the requirements for PMSC rms to register and have an operating licence, they can prevent their agencies from hiring PMSCs that cannot show that they are subject to regulation elsewhere.180 This would allow governments to nudge PMSCs towards states offering registration and licensing
176

177 178

179 180

Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conict Act 27 of 2006 (16 November 2007), Government Gazette vol. 509, no. 30477, ss. 1011. Schreier and Caparini, Privatising Security, pp. 1078. See Ronen, Israel, pp. 44559 for a discussion of Israels regulation of Israeli PSCs, which, like many security forces operating in Israel and the occupied Palestinian territories, perform a mix of military and law enforcement functions. As noted above, Switzerland may yet join this group. Some states in the working groups consultation process expressed the view that states from which PMSC individuals are recruited should be able to regulate those companies that recruit on their territory. See UN Working Group on the Use of Mercenaries, Regional Consultation for Africa on the Activities of Mercenaries and Private Military and Security Companies: Regulation and Monitoring 34 March 2010, UN Doc. A/HRC/15/25/Add.5, 2 June 2010, para. 29.

state regulation of conduct of pmsc s

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schemes as their home base if they perceived that as an effective means of controlling the conduct of PMSCs. The contracting state will need to have legislation permitting the exercise of criminal jurisdiction over individuals even when the operations are extraterritorial.181 With complex missions involving various government agencies, states must make sure jurisdiction is not limited according to which agency contracts the PMSC.182 In addition, especially when it comes to criminal jurisdiction, the existence and terms of a Status of Forces Agreement (SOFA) may be an important tool for regulating PMSCs, both for contracting and territorial states.183 Contracting states will need to have detailed regulations and rules, in addition to the contract, regarding how PMSCs may operate in theatre.184 In addition, in order for states to be able to supervise and regulate the conduct of PMSCs, they need to know what PMSCs are doing. Obligations to report serious incidents are an important mechanism in controlling PMSC conduct and being able to implement responsibility. In practice, however, oversight and implementation of even the best-laid regulatory plans may prove extremely difcult in the context in which PSMCs operate. Even so, recent US legislation is designed to make primary contractors responsible for the acts of their subcontractors,185 signalling efforts to improve oversight and accountability mechanisms and clarify the line of responsibility.186
181

182

183

184

185

186

In this vein, US legislation such as the Military Extraterritorial Jurisdiction Act has been much discussed with respect to PMSCs. See also the South African law discussed above, ss. 10 and 11. E.g. in the United States, persons contracted by agencies other than the DoD were arguably not caught by criminal laws. See Human Rights First, State of Affairs: Three Years After Nisoor Square (September 2010) for a concise overview of applicable laws and proposed changes. The good practices in the Montreux Document refer to SOFAs: see Montreux Document Part II, points 22 (contracting states) and 51 (territorial states). See Elsea, Private Security Contractors in Iraq and Afghanistan, pp. 1418 for a concise description of US laws, regulations and instructions that apply to PMSCs contracted by the US Department of Defense and supporting its missions. Ike Skelton National Defense Authorization Act 2011, 111th Congress (200910) HR 6523 ENR, s. 831. There is controversy over the potential effectiveness of contracts to regulate PMSCs. One law professor and member of the US Commission on Wartime Contracting is optimistic: see C. Tiefer, No More Nisour Squares: Legal Control of Private Security Contractors in Iraq and After (2009) 88 Oregon L Rev 74575. But see J. S. Martin, Contracting for Wartime Actors: The Limits of the Contract Paradigm (2007) 14 New England J Intl and Comparative L 1133, 2930, arguing that contract is wholly ineffective to impose responsibility upon U.S. contractors for criminal acts committed abroad.

580 responsibility for violations of international law

When it comes to territorial states, the most signicant framework so far concerns private security contractors, obviously because these actors may use force domestically. So, while the UK does not have a regulatory scheme addressing PMSCs, it does regulate private security companies in the UK.187 What is of particular concern in current circumstances, however, is the regulation of private security companies by states in which conicts are occurring. In Afghanistan, the difculty of creating and implementing a workable regulatory framework for private security companies is likely one of the main reasons President Karzai has resorted to attempting to ban them outright from operating in Afghanistan. Indeed, regulating private actors mandated to use force on behalf of different actors and stakeholders in the midst of a conict, and in a climate in which corruption is rampant, is no easy task.188 The Afghan regulation (which is not a formal law) created a High Co-ordination Board (HCB) responsible for reviewing applications for PMSC licences, determining the number and type of weapons the PMSC could use, investigating violations and which was empowered to propos[e] more limitations regarding the issuance of the operational licenses.189 Some members of the HCB then proceeded to insist, for example, that all insurance and bank guarantees must be done through local companies with whom some HCB members had relationships.190 This of course bogged down the registration process. Furthermore, private security companies that do not register or do not even attempt to register continue to operate with impunity.191 Albeit anecdotal, these situations illustrate the limits of this type of quasi-regulation. For its part, Colombia is an example of a territorial state that reportedly does little to regulate PMSCs and, furthermore, it has granted immunity to US contractors operating there.192

187 188

189

190 191 192

Private Security Industry Act 2001, c. 12. See esp. Brooking and Schmeidl, When Nobody Guards the Guards, pp. 21011 for a detailed description of problems with drafting and implementing the legislation. Afghanistan, Ministry of Interior, Procedure for Regulating Activities of Private Security Companies in Afghanistan (February 2008), s. 9(1). Brooking and Schmeidl, When Nobody Guards the Guards, pp. 21011. Ibid., p. 212. I. Cabrera and A. Perret, Colombia: Regulating Private Military and Security Companies in a Host State in Christine Bakker and Mirko Sossai (eds.), Multilevel Regulation of Military and Security Contractors (Oxford: Hart Publishing, 2012), pp. 41621. Colombia did not participate in the Montreux process and has not signed up to the document.

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In terms of specic issues for regulation owing from IHL, the Montreux Document suggests that in determining which services may not be contracted out, exported, or licensed in the territory, states should take into account whether the service in question could cause PMSC personnel to become involved in direct participation in hostilities.193 This admonition and a plea to respect it reoccur in the Draft Convention.194 While we applaud this principle, our discussion in Chapter 4 above highlights how difcult it may be to ensure its implementation in practice. States are sensitive to the complexities and nuances of the debate indeed, US efforts to dene inherently governmental in a situation of armed conict, as described in Chapter 2 above, may dovetail in many respects with actions that constitute direct participation in hostilities.195 In Chapter 4 above, we indicated that regulations conning PMSCs to a merely defensive role, as some commentators suggest,196 while laudable, would be insufcient to ensure with absolute certainty that PMSCs will not end up directly participating in hostilities. Finally, provisions in the Montreux Document and the Draft Convention stipulate that PMSCs should not take on roles that are likely to lead to their direct participation in hostilities, but as we have seen, many have done and continue to do just that. All of the possibilities discussed have weaknesses inherent in the nature of their relationship including geographical to PMSCs. For home states, physical distance makes it difcult (but not impossible) to supervise PMSCs in a truly meaningful or effective way (but reporting obligations can help to mitigate this); for territorial states, the strong possibility of dysfunctional justice and government systems means that even with the best of efforts, supervision is patchy, or other major problems mean that governments are not in a position to make regulating PMSCs a priority. In our view, contracting states should have the greatest capacity to oversee and control PMSCs because in many cases at least in theory PMSCs are deployed alongside and in order to
193

194

195 196

Montreux Document Part II, points 1, 24 and 53 (for contracting, territorial and home states, respectively). UN Draft Convention on PMSCs, Art. 8(1), in Human Rights Council, Report of the Working Group on the Use of Mercenaries, Annex, UN Doc. A/HRC/15/25, 2 July 2010. See Ch. 2, section B 2.3.5 above. See e.g. K. OBrien, What Should and What Should Not Be Regulated? in S. Chesterman and C. Lehnardt (eds.), From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford University Press, 2007), pp. 29, 45.

582 responsibility for violations of international law

support government agencies, which could be in a position to supervise their activities in the eld. Finally, an important, albeit indirect, part of this regulatory landscape is domestic criminal law. The ability to prosecute contractors for crimes and in particular for violations of IHL and IHRL is an important means for states to enforce their responsibility and implement their obligations.197 Criminal prosecution before national courts is both a means for states to exercise control over the conduct of PMSCs and a way to implement responsibility. In the following section, we will explore international criminal law as a means of implementing the responsibility of PMSCs.

C Establishing international criminal responsibility

Private military and security services are one of the most sensitive industries when it comes to international crimes. The essence of the services they provide implies that they will mainly act in high-risk or conict zones where international crimes may be committed and their services include the use of (even deadly) force. The possibility that they might be direct perpetrators of international crimes is thus greater than for other commercial activities.198 In this section, we will consider the framework for prosecuting corporations and individuals for international crimes on the international199 and national levels. There is a nascent concept of
197

198

Note that states may be responsible (under international law) for the acts of contractors regardless of their ability to prosecute under their own criminal laws. Elsea, Private Security Contractors in Iraq and Afghanistan, p. 18. See e.g. Joanne Kyriakakis, Australian Prosecution of Corporations for International Crimes: The Potential of the Commonwealth Criminal Code (2007) 5 JICJ 80926; C. Forcese, Deterring Militarized Commerce: The Prospect of Liability for Privatized Human Rights Abuses (2000) 31 Ottawa L Rev 171; International Commission of Jurists, Corporate Complicity & Legal Accountability, Report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes, 3 vols. (Geneva, 2008), vol. 2, p. 5: The Panel believes that as the eld of international criminal law develops and as companies operate in new contexts, international criminal law and its implementation in domestic and international jurisdictions will become evermore relevant to companies. The rapid increase of private military companies and private security companies operating in areas of armed conict is one example of how companies work in situations where they may become implicated in the perpetration of war crimes. For general studies on international criminal law, see K. Khan and R. Dixon, Archbold: International Criminal Courts: Practice, Procedure and Evidence (London: Sweet & Maxwell, 2009); Antonio Cassese (ed.), The Oxford Companion to International

199

establishing international criminal responsibility 583

corporate criminal responsibility under international law, which we will explore. Due to the principle of complementarity in international criminal law, this concept is buttressed by the fact that on a national level, corporations can increasingly be held criminally responsible under some circumstances.200 We will then outline how individual contractors working for PMSCs may be prosecuted for international crimes. There is no doubt that individual employees or directors of private military companies can be held responsible for international crimes, just as any other person can be (section 2). Our discussion will thus focus on the various ways PMSC employees/contractors may be implicated in participation in crimes. Finally, problems of jurisdiction plague both the prosecution of PMSC corporations and individuals at both the international and national levels, but for different reasons. We will raise these issues throughout our discussion.

Corporate criminal responsibility

The concept of international corporate criminal liability is contentious in the international legal community. No international court or tribunal currently operating has jurisdiction over corporations.201 Therefore, admittedly, even if in theory corporations are criminally liable, there is no international tribunal that can prosecute them at the present time. However, the assertion that corporations are unable to commit international crimes because they have no soul to be damned, and no body to
Criminal Justice (London: Sweet & Maxwell, 2009); H. Ascensio, E. Decaux and A. Pellet (eds.), Droit international penal (Paris: Pedone, 2000); J. Jones and S. Powles, International Criminal Practice, 3rd edn (Oxford University Press, 2003); K. Kitchaisaree, International Criminal Law (Oxford University Press, 2001); Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (The Hague: TMC Asser Press, 2003). See also J. C. Watkins and J. P. Weber, War Crimes and War Crimes Trials: From Leipzig to the ICC and Beyond: Cases, Materials and Comments (Durham: Caroline Academic Press, 2006). Many recent developments with regard to corporate complicity in international crimes render the concept of international responsibility of corporations for international crimes more and more relevant and of actuality for business leaders, law practitioners and scholars. On this issue, many websites are useful sources of information. See e.g. www.business-humanrights.org, www.fafo.no/liabilities/index.htm and www.redags. info. See also the International Commission of Jurists, Corporate Complicity & Legal Accountability, vols. 13. Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3, in force 1 July 2002, Art. 25(1).

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201

584 responsibility for violations of international law

be kicked202 must probably be nuanced. Indeed, foundations on which to lay the existence of an international corporate criminal responsibility theory and basis for its development may be found in international Second World War jurisprudence and in negotiations and preparatory works of the Rome Statute establishing the ICC. Furthermore, corporations can be prosecuted in many states. Due to the principle of complementarity in international criminal law, the more states provide for criminal liability of corporations within their domestic laws, the easier it will be to create a basis for jurisdiction over corporations at the international level.

1.1 Second World War jurisprudence and the Nuremberg Industrialist cases The sheer importance of the jurisprudence owing from the military tribunals following the Second World War for the afrmation and development of international criminal law is undisputed, but its legacy is not without controversy. The principles of the Nuremberg Charter203 and the judgments of the tribunals were rapidly recognized by the international community,204 but when it comes to the criminal responsibility of legal persons, it must be acknowledged that neither the International Military Tribunal (IMT) nor the national tribunals prosecuted corporations per se. That being said, the US and British Military Tribunals did prosecute individual industrialists for acts committed via corporations they managed and directed. This state of affairs has allowed lawyers to argue that the industrialist cases stand for opposing principles: that the Nuremberg Tribunals support a conclusion that corporations can be criminally liable under international law and, conversely, that they cannot.205 In our view, the London Charter itself and the trials related to the industrialists judged by the United States Military Tribunal

202

203

204

205

Edward, 1st Baron Thurlow, English jurist and Lord Chancellor (17311806), quoted in J. C. Coffee, No Soul to Damn: No Body to Kick: An Unscandalized Inquiry into the Problem of Corporate Punishment (1980) 79 Michigan L Rev 386. Charter of the International Military Tribunal, Nuremberg Trial Proceedings, vol. 1, http://avalon.law.yale.edu/imt/imtconst.asp. See Afrmation of the Principles of International Law Recognized by the Charter of the Nrnberg Tribunal, UNGA Res. 95(1), GAOR, 1st Sess., 2nd part, p. 188. J. Bush, The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said (2009) 109 Columbia L Rev 1094262, 1237 (at nn. 5589 he lists scholars with opposing views).

establishing international criminal responsibility 585

at Nuremberg especially Farben and Krupp provide grounds for a theory of corporate criminal liability. First, arguably, Articles 9 and 10 of the Nuremberg Charter of the IMT, which gave the power to the IMT to declare certain groups to be criminal organizations and created the offence of membership of such an organization, can be interpreted as recognizing the criminal responsibility of legal persons under international law. In an academic article, Henri Donnedieu de Vabres, one of the judges of the IMT, stated that the statute of the tribunal implicitly afrmed that legal persons can be criminally responsible since it obliged the tribunal to make a nding on the criminal nature of groups and organizations.206 However, prosecutors never charged corporations with war crimes (although apparently they considered doing so) and they never had occasion to ask the IMT to declare a corporation to be a criminal organization.207 One of the industrialists, Krupp, was originally supposed to be tried by the IMT with the major war criminals, and there was even discussion among the prosecutors of a second international trial mainly dealing with industrialists, but it was abandoned.208 If Krupp had been tried at the IMT, that trial may have given rise to deliberations over the criminal nature of the Krupp rm in the sense Dieudonn de Vabres referred to. When Krupp was tried by the US Military Tribunal at Nuremberg, however, the option
206

He writes: le statut rsout implicitement par lafrmative un problme lgard duquel ses auteurs semblent avoir eu quelque hsitation se prononce: celui de la responsabilit pnale des personnes morales. Car sil ne prvoit pas liniction de sanctions pnales des groupements qui appartiennent au pass il se prononce, ou plutt il oblige le tribunal se prononcer, sur leur caractre criminel. Or, la grande difcult que soulve la responsabilit pnale des personnes morales nest pas dimaginer des sanctions applicables aux collectivits cest de prciser les conditions que doivent revtir les activits des individus membres du groupe seules concevables , pour que le groupement lui-mme puisse tre quali de criminel. H. Donnedieu de Vabres, Le Procs de Nuremberg devant les principes modernes du droit pnal international (1947) 70 Recueil des Cours de lAcadmie de Droit International 545. He adds, La dclaration de criminalit dont sont frapps certains groupements et organisations montre que, dans la pense des auteurs du statut et des juges, les responsabilits individuelles ne sont pas seules engages dans le drame de la deuxime guerre mondiale, p. 559. Bush, Prehistory of Corporations and Conspiracy in International Criminal Law, pp. 115060. Ibid., pp. 111617 and 112330. In the end, Krupp was dropped from the Trial of the Major War Criminals and his son was prosecuted by the US Military Tribunal.

207

208

586 responsibility for violations of international law

of having the rm declared to be a criminal organization was not open to prosecutors209 as the tribunal itself did not have the power to do so under Control Council Law no. 10.210 In any case, a theoretical basis for the prosecution of legal persons under international criminal law may be gleaned through Donnedieu de Vabres reading of the constitutive documents of the IMT. Secondly, many elements of the Farben and Krupp cases show that the tribunal accepted the prosecutions arguments regarding the important role of the corporation in the commission of the crimes by the individuals as an instrumentality of cohesion in the name of which the crimes reproached were committed.211 Being a member of any organization or group connected with the commission of any such crime was a form of participation in a crime under Article 2 of Control Council Law no. 10. Businesses were thus a vehicle through which crimes could be committed and in order to establish the guilt of the individuals, the connection of the business itself with the crime had to be demonstrated. Consequently, prosecutors argued, and the tribunal accepted, that certain acts of the rms constituted crimes. The criminality of the rm was used to deduce the participation and guilt of the individuals. Some detail regarding the two cases helps to illustrate this point. IG Farben was a major German corporation specializing in chemical and pharmaceutical products. Farben possessed more than 400 facilities, railroads, bituminous coal mines, electric power plants etc. During the war, Farben furnished poison gas to the SS and produced many of the pharmaceuticals used at Auschwitz for medical experiments on prisoners. The prosecution alleged that Farben was part of the Nazi party and Hitlers plan to wage war and that it synchronized its industrial activities with the military plan of the German High Command in order to rearm Germany and equip the Third Reich for wars of aggression. Twenty-three of its employees were indicted by the US Military Tribunal at Nuremberg for planning, preparing for and waging wars of aggression and crimes against peace (count one); plunder and spoliation, as a crime against
209

210

211

Given the IMTs reluctance to declare organizations to be criminal, such a tactic may have had little chance of success. Art. II(1)(d) of Control Council Law no. 10 enumerates as a crime Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal. Nothing in this law gives a power to the National Tribunals to declare groups or organizations to be criminal. IG Farben case, Trials of War Criminals before the Nuremberg Military Tribunals, vol. VII, at 1153.

establishing international criminal responsibility 587

humanity and a war crime (count two); slavery (forced labour) and mass murder, through the supplying of poison gas and drugs for medical experiments to concentration camps, the role of the corporation in the slave-labour programme of the Third Reich and the unlawful and inhumane practices of Farben at its own plant at Auschwitz, as a crime against humanity and a war crime (count three); membership of a criminal organization (the SS) (count four); and conspiracy to commit crimes against peace (count ve).212 The tribunal recognized that the defendants had collectively used the corporation to commit their crimes. Counts one, two, three and ve of the indictment alleged that [a]ll of the defendants, acting through the instrumentality of Farben and otherwise with divers other persons213 committed the crimes. Counts one, two, and three also alleged that defendants were members of organizations or groups, including Farben, which were connected with the commission of said crimes.214 In its judgment, the tribunal carefully considered the structure and organization of the corporation215 and discussed the responsibility that may be attributed to legal persons under the law of the United States and Germany.216 It recalled that the corporation as such was not before the bar, but stated that it used the term Farben as a description of the instrument of cohesion in the name of which the acts were committed.217 The rm was thus the organization or group connected with the commission of the crimes the vehicle of participation necessary to satisfy Article 2 of Control Council Law no. 10. At the same time, the tribunal assimilated the corporation with individuals for the purpose of the law, holding, [w]here private individuals, including juristic persons, proceed to exploit the military occupancy by acquiring private property against the will and consent of the former owner, such action, not being expressly justied by any applicable provision of the Hague Regulation, is in violation of international law.218 The evidence established that Farben acted to enrich itself. The tribunal stated that [t]he form of the
212 213

214 218

Ibid., at 1082. IG Farben case, Trials of War Criminals before the Nuremberg Military Tribunals, vol. VIII, at 1085. 215 216 217 Ibid. Ibid., at 10878. Ibid., at 1126. Ibid., at 1153. Ibid., at 1132. Emphasis added. The tribunal further adds: Similarly where a private individual or a juristic person becomes party to unlawful conscation of public or private property by planning and executing a well-dened design to acquire such property permanently, acquisition under such circumstances subsequent to the conscation constitutes conduct in violation of the Hague Regulation, at 11323.

588 responsibility for violations of international law

transactions were varied and intricate, and were reected in corporate agreements well calculated to create the illusion of legality. But the objective of pillage, plunder, and spoliation stands out, and there can be no uncertainty as to the actual result.219 In its conclusions, the tribunal stated that the actions of Farben violated the Hague Regulations and inferred the criminal responsibility of the defendants through it.220 The individual knowledge of each defendant remained the key factor,221 but the tribunal looked at the position of each defendant during the perpetration of crimes in the corporate structure of Farben in order to deduce their knowledge.222 In Krupp, Alfried Krupp, the sole owner and head director of the Krupp rm, a military supply business, and eleven ofcials of the rm faced accusations of crimes against peace, participation in a common plan or conspiracy to commit crimes against peace, slave labour as war crimes and crimes against humanity, plunder and spoliation. The rst two charges were dismissed by the tribunal for lack of evidence. As in the Farben case, the prosecutor based his case on the theory that working in the Krupp rm satised the requirements of membership of a group connected with the commission of a crime.223 The indictment described how the Krupp rm, as such and through the defendants, collaborated in Hitlers plan to wage war.224 With regard to the accusation of forced labour, the indictment said that Krupp maintained ofces
219 220

221

222 223

224

Ibid., at 1140. As the action of Farben in proceeding to acquire permanently property interests in the manner generally outlined is in violation of the Hague Regulations, any individual who knowingly participated in any such act of plunder and spoliation with the degree of connection outlined in Article II, paragraph 2 of Control Council Law no. 10, is criminally responsible therefor. Ibid., at 1141. Art. II(2)(e) of Control Law no. 10 states: 2. Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as dened in paragraph 1 of this Article, if he was (e) a member of any organization or group connected with the commission of any such crime IG Farben case, Trials of War Criminals before the Nuremberg Military Tribunals, vol. VIII, at 1157. Ibid., at 115367. Art. 2 Control Council Law no. 10. Indeed, in the indictment, at count one (crimes against peace) it is written, inter alia, that the defendants were accused of having been members of organizations and groups, including Krupp, connected with the commission of crimes against peace. Krupp case, Trials of War Criminals before the Nuremberg Military Tribunals, vol. IX, at 10. E.g. it stated, The Krupp rm, under the direction of the defendants, synchronized all its activities with the German Government and its plans and preparations for invasions and wars The assistance Krupp rendered under the direction of the defendants, through its research, foreign organizations, manufacturers, and exports, was indispensable to the

establishing international criminal responsibility 589

in occupied countries and recruited foreign civilians who were forced, terrorized, and misled into employment with Krupp.225 In his opening statement, the prosecutor recalled that each defendant was accused for his personal behaviour, which involved his personal criminal responsibility. Nevertheless, the prosecutor pointed out, it is true that most of the crimes with which the defendants are charged were committed by them in their capacity as Krupp ofcials.226 Thus, the history of the rm and its links with the German government were of particular relevance for the prosecutors case and were part of the evidence submitted to the tribunal. The Krupp rm was alleged, among other things, to have placed its laboratories, furnaces and mines at Germanys disposal in order to make it self-sufcient. In its judgment, the tribunal carefully examined the activities of the Krupp rm and its relations with Hitlers government. It concluded, inter alia, that the actions of the corporation constituted violations of Articles 43 and 46 of the Hague Regulations and that the Krupp rm, through defendants Krupp, Loeser, Houdremont, Mueller, Janssen, and Eberhardt, voluntarily and without duress participated in these violations by purchasing and removing the machinery and leasing the property of the Austin plant and in leasing the Paris property.227 For the judges, it was the Krupp rm that took over certain French enterprises and also considered occupied France as a hunting ground for additional equipment which was shipped to the French enterprises operated by the Kto Krupp establishments in Germany.228 The evidence demonstrated that the Krupp rm required foreign prisoners and foreign workers for its production and kept them in harsh conditions.229 The rm also maintained a penal camp for disciplinary purposes.230 The tribunal also recognized that a corporation can use a government or a state policy to achieve its unlawful purposes:
it clear to us that the initiative for the acquisition of properties, machines, and materials in the occupied countries was that of the Krupp rm and that it utilized the Reich government and Reich agencies whenever necessary to accomplish its purpose, preferring in some instances, as has been shown, to remain in the background while the negotiations were handled by the government agencies.231

225 228

preparation, initiation, and waging of Germanys aggressive wars. Krupp case, Trials of War Criminals before the Nuremberg Military Tribunals, vol. IX, at 15. 226 227 Ibid., at 31. Ibid., at 60. Ibid., at 1353. Emphasis added. 229 230 231 Ibid., at 1361. Ibid., at 1399 ff. Ibid., at 1399. Ibid., at 1372.

590 responsibility for violations of international law

The simple fact is that corporations themselves were not charged with crimes and it was not open to the national tribunals to declare them to be criminal organizations. Jonathan Bush forcefully argues in a careful and fascinating essay that the reasons corporations were not charged with war crimes by US prosecutors were based in economic and political concerns regarding their role in the reconstruction of Germany, rather than due to a perceived absence of a legal basis in international law.232 The fact that the corporations were not prosecuted as independent entities therefore does not lead inexorably to a conclusion that jurists at the time who were active in the tribunals believed it to be an untenable position in law.233 These cases show the importance of corporate structures and activities in establishing the guilt of corporate directors. At the same time, they sustain the theory that corporations can be perpetrators of crimes, in that they acknowledge that it was the rms that make the purchases and use the labour (and so on) through the actions of their managers and directors. The industrialist cases may thus be considered as laying the foundations for a theory of corporate criminal liability in international law. Indeed, they not only recognize that a corporation can commit international crimes, such as forced labour and war crimes, but also accept and, above all, apply the concept of corporate criminal liability in international law. Although no international tribunal yet has jurisdiction over corporations, corporate activities could be particularly relevant in establishing directors individual criminal responsibility. With regard to directors of PMSCs, as their corporations are often active in conict zones and deal with governments in time of war, the Nuremberg Industrialist cases could be of some relevance in drawing the line between lawful business and criminal involvement.

1.2 Corporate criminal responsibility and the Rome Statute The starting point in any discussion about corporate criminal responsibility and the ICC is, of course, that it does not have jurisdiction over legal persons.234 Thus, under the present statute, the Court cannot be a
232

233 234

Bush, Prehistory of Corporations and Conspiracy in International Criminal Law, pp. 1094262. Bush bases his analysis and conclusions heavily on the correspondence and records of debates between the prosecutors, both the US in-house documents and conversations with UK prosecutors. Ibid., at p. 1239. Art. 25(1) Rome Statute: The Court shall have jurisdiction over natural persons pursuant to this Statute.

establishing international criminal responsibility 591

forum for prosecuting PMSCs as corporations for any international crimes they may commit. The broader question engendered by this state of affairs is: what does the refusal of states to provide the ICC with jurisdiction over legal persons mean for the existence of a concept of corporate criminal responsibility under international law? And what does that mean for prosecuting PMSCs? The issue of whether an international criminal tribunal would have jurisdiction over legal persons arose in some of the earliest ILC discussions on the creation of such a court and remained a concept in limbo over the following decades. In the 1950s, the notion was rejected as too controversial and novel, in part due to the fact that many national legal systems did not recognize it.235 Half a century later, [t]he very rst question raised in the Committee of the Whole at its rst meeting was whether the suggestion concerning legal persons should be retained, and, if so, whether its reach should be rened,236 illustrating the centrality of the question of jurisdiction over legal persons in the conference leading to the adoption of the Rome Statute. A preliminary version of the Statute of the ICC dated April 1998 contained a provision that would have given the future court jurisdiction over corporations,237 while maintaining that individual criminal responsibility would not thereby be diminished.238 Some articles of the draft statute established specic penalties applicable to legal persons, which included nes and dissolution.239 Nevertheless, the preparatory committee acknowledged that this question was controversial, and referred to a deep divergence of views.240 Andrew Clapham provides a detailed
235

236 237

238

239 240

Andrew Clapham, The Question of Jurisdiction under International Criminal Law over Legal Persons: Lessons from the Rome Conference on an International Criminal Court in M. Kamminga and S. Zia-Zari (eds.), Liability of Multinational Corporations under International Law (The Hague: Kluwer, 2000), pp. 1712, citing the 1951 and 1953 Reports of the Committee on International Criminal Jurisdiction of the ILC. Ibid., p. 146. The Court shall also have jurisdiction over legal persons, with the exception of States, when the crimes committed were committed on behalf of such legal persons or by their agencies or representatives. Report of the Preparatory Committee for the Establishment of an International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, A/CONF.183/2/ Add.1 (1998), Art. 23(5). The criminal responsibility of legal persons shall not exclude the criminal responsibility of natural persons who are perpetrators or accomplices in the same crimes. Ibid., Art. 23(6). Ibid., Art. 76. See also draft Art. 99 on the enforcement of nes and forfeiture measures. Ibid., p. 49. See also the rst-hand account of Per Saland, who chaired the Preparatory Committee work on this issue: International Criminal Law Principles in R. Lee (ed.),

592 responsibility for violations of international law

history of the negotiations and proposals circulating on this issue during the Rome Conference, in which he describes and analyses a working paper proposing a lengthy article that would give the ICC jurisdiction over corporations.241 In his view, that proposal sought to address two of the principal concerns of states: rst, to maintain an emphasis on individual criminal responsibility; and secondly, to ensure that corporations would not be dened so as to allow states to come within the purview of the denition of legal persons (thereby avoiding a re-collectivization of responsibility).242 The rst-hand account of negotiations by Per Saland, who chaired the Working Group on General Principles of Criminal Law in the Preparatory Committee and at the Rome Conference, conrms this interpretation. Saland notes that he had asked the French and Solomon Islands delegates to consult others and develop proposals to see if agreement was possible.243 He reports:
They came up with a series of proposals that, more and more, linked the criminal responsibility of the legal entities to that of an individual. The inclusion gradually became acceptable to a wider group of countries, probably a relatively broad majority. Among the last opponents were Nordic countries, Switzerland, the Russian Federation and Japan. Some other countries opposed inclusion on procedural rather than substantive grounds. Time was running out, and the inclusion of the criminal responsibility of legal entities would have had repercussions in the part on penalties as well as on procedural issues, which had to be settled so as to enable work to be nished. Eventually, it was recognized that the issue could not be settled by consensus in Rome, and France and Solomon Islands gracefully withdrew the proposals on which they had worked very hard and diligently for a long time.244

According to Clapham, the main questions (and disagreements) concerning jurisdiction over corporations at the Rome Conference were more technical than conceptual: [h]ow to serve the indictment, who would represent the interest of the legal person, how much intention needed be proved, how to ensure that natural persons could not hide behind group responsibility.245 Some of the reasons in favour of giving the ICC jurisdiction over legal persons included the possibility of
The International Criminal Court: The Making of the Rome Statute Issues Negotiations Results (The Hague: Kluwer, 1999), pp. 189216, esp. 198200. 242 See Clapham, Jurisdiction over Legal Persons, pp. 1506. See ibid. 244 Saland, International Criminal Law Principles, p. 199. Ibid. Clapham, Jurisdiction over Legal Persons, p. 191.

241 243 245

establishing international criminal responsibility 593

compensation to victims, the higher stigmatization of criminal proceedings compared to civil penalties, and the possibility that the criminal prosecutions of corporations for international crimes could lead to greater caution in corporate decision-making.246 Saland reports that representatives of countries who strongly favored including criminal responsibility of legal persons did so on grounds of efciency, and argued moreover that it would have seemed retrograde, after the Nrnberg and Tokyo trials, not to do so.247 Another study of documents surrounding the creation of the ICC and of the discussions concerning its jurisdiction suggests that the jurisdiction of the court over legal entities was rejected due to a lack of consensus between states and lack of time for negotiations and not because such an idea has no foundation in law or is theoretically wrong.248 One of the main reasons put forward by some delegations was the lack of uniformity between domestic legal systems with regard to the recognition of corporate criminal responsibility and the problems that this might imply for the respect of the complementarity principle.249 By the time of the Rome Conference in 1998, however, many states had already recognized the concept of corporate criminal responsibility in their national law.250 Nevertheless, it was withdrawn from the nal agreement.251
246 248 247 Ibid., p. 147. Saland, International Criminal Law Principles, p. 199. See e.g. Fafo, Business and International Crimes: Assessing the Liabilities of Business Entities for Grave Violations of International Law, Report 467 (Allkopi Sarpsborg, Norway, 2004), www.fafo.no/liabilities/, assessing that there is no theoretical obstacle to holding companies liable for international crime. This is supported by the account of Saland described above. See also Clapham, Jurisdiction over Legal Persons. Indeed, Art. 17 Rome Statute stipulates that the primary responsibility for investigating and prosecuting alleged perpetrations of international crimes lies on the shoulders of states parties and that the court will intervene only if the competent states are unable or unwilling to do so. See Joanne Kyriakakis, Corporations and the International Criminal Court: The Complementarity Objection Stripped Bare (2008) 19 Crim L Forum 11551, 136 ff. arguing that the complementarity objection is unfounded and that the question of the jurisdiction of the ICC over legal entities is a value and policy issue and that the inclusion of corporations within the jurisdiction of the court would not jeopardize the complementarity principle. Beth Stephens, The Amorality of Prot: Transnational Corporations and Human Rights (2005) 20 Berkeley J Intl L 45, 645. See, for the French/Solomon Islands proposal, UN Doc. A/CONF.183/2/Add.1, ss. 23(5) and (6): (5) [The Court shall have jurisdiction over legal persons, with the exception of States, when crimes committed were committed on behalf of such legal persons or by their agencies or representatives. (6) The criminal responsibility of legal persons shall not exclude the criminal responsibility of natural persons who are perpetrators or accomplices in the same crimes.]

249

250

251

594 responsibility for violations of international law

The assertion of the Nuremberg jurisprudence that corporations are bound by international criminal law was not challenged by state representatives at the Rome Conference.252 International criminal law is rapidly evolving and it is not impossible that jurisdiction over corporations at the international level be established in the future. If that were the case, both PMSC rms and individuals could be prosecuted before international criminal tribunals.253 Indeed, as the assertion that states remain the sole subjects of international law is increasingly challenged, the lack of international tribunals subjecting corporations to international criminal law may be more the consequence of a rule of procedure rather than the inevitable result of application of international criminal law.254 Furthermore, nothing in the Rome Statute forbids the Ofce of the Prosecutor from investigating the involvement of legal entities and communicating information to a competent state party. For instance, in 2003, the chief prosecutor of the ICC, Luis Moreno-Ocampo, declared that he would give special attention to the situation in Ituri (DRC). He said:
According to information received, crimes reportedly committed in Ituri appear to be directly linked to the control of resource extraction sites. Those who direct mining operations, sell diamonds or gold extracted in these conditions, launder the dirty money or provide weapons could also be authors of the crimes, even if they are based in other countries.255

Thus, the lack of jurisdiction of the ICC over corporations does not prevent the prosecutor from paying attention to corporate activities

252 253

254

255

Clapham, Jurisdiction over Legal Persons, p. 191. Clapham underscores that during the discussion on the establishment of the jurisdiction of the court over legal persons, the case of private military companies was raised by the delegates. Ibid., pp. 14950 and points to the fact that the statute may be amended: ibid., pp. 15960. Andrew Clapham, Extending International Criminal Law Beyond the Individuals to Corporations and Armed Opposition Groups (2008) 6 JICJ 902. In this, Clapham parallels an assertion of Brierly regarding international personality. J. L. Brierly, Le Fondement du caractre obligatoire du droit international (1928) 23 Recueil des Cours de lAcadmie de Droit International 530. According to Eric David, the cases of TotalFinaElf in Belgium and France and Unocal in the United States show that civil and criminal responsibility of legal persons is perfectly adapted to crimes of IHL. See La Cour pnale internationale (2005) 313 Recueil des Cours de lAcadmie de Droit International 369. Report of the Prosecutor of the ICC, Mr Luis Moreno-Ocampo, 8 September 2003, Second Assembly of States Parties to the Rome Statute of the International Criminal Court, emphasis added.

establishing international criminal responsibility 595

linked to the commission of crimes (which could potentially be prosecuted in a states courts) or from bringing accusations against corporate directors. PMSCs could certainly fall under the magnifying glass in the course of such investigations.256 Both the Second World War jurisprudence and the debates surrounding the creation of the ICC lend support to the view that international corporate criminal liability is not inconsistent with international criminal law. Moreover, the possibility of holding a corporation liable for the commission of a war crime, a crime against humanity or an act of genocide is already a reality in some states.

1.3 Corporate criminal responsibility in national jurisdictions Many national legal systems recognize corporate criminal responsibility.257 In common law countries it is an old and well-established principle, but it is also a developing one in Continental law countries.258 However, the doctrines used to afrm the criminal responsibility of corporations vary in different countries from the directing mind259 to requiring the establishment of the guilty mind of the corporation as a whole260 or by establishing a corporate culture.261 Nevertheless, in most
256

257

258

259

260

261

The United States is not presently a party to the Rome Statute, which could pose an additional hurdle for jurisdiction. See Fafo, Business and International Crimes, Report 467; A. Ramasastry and R. C. Thompson, Commerce, Crime and Conict. Legal Remedies for Private Sector Liability for Grave Breaches of International Law. A Survey of Sixteen Countries, Fafo, Report no. 536, Allkopi AS, Norway (2006). For a short history of the principle of corporate criminal liability, see G. Stessens, Corporate Criminal Liability: A Comparative Perspective (1994) 43 ICLQ 493520. Thomas Weigend, Societas delinquere non potest? A German Perspective (2008) 6 JICJ 928. For an overview of common law corporate criminal responsibility, see Celia Wells, Corporations and Criminal Responsibility (Oxford University Press, 2001). Under this doctrine, used in Canada and UK, for instance, a corporation may be held liable for the actions of its agents if these actions can be interpreted as being consistent with the intent of the corporation. Fafo, Business and International Crimes, Report 467, p. 23. The mens rea of the corporation can be demonstrated by actions or omissions of employees or by establishing that the directing management knew or should have known of the illegal pattern benetting the corporation. This doctrine is used in the United States and also in the UK. Fafo, Business and International Crimes, Report 467, p. 23. See also Weigend, Societas delinquere non potest?, p. 932. See Section 12.3(2) c) of the Australian Criminal Code. See also Kyriakakis, Australian Prosecution of Corporations; A. A. Robinson, Corporate Culture as a Basis for the Criminal Liability of Corporations, Documents Prepared for the United Nations Special Representative of the Secretary-General on Human Rights and Business (February 2008), www.reports-and-materials.org/Allens-Arthur-Robinson-Corporate-Culture-paperfor-Ruggie-Feb-2008.pdf .

596 responsibility for violations of international law

domestic laws, for a corporation to be held liable, the criminal act must have been committed by an employee with a certain status or a certain level of inuence within the company and within the scope of his or her employment.262 According to a survey conducted by Fafo, criminal prosecutions of legal entities are possible in Australia, Belgium, Canada, France, India, Japan, the Netherlands, Norway, South Africa, the UK and the United States.263 Switzerland may also be added to this list.264 Florence Parodi furthermore identies Austria, Denmark and Finland as RomanGermanic systems which have provisions permitting prosecution of corporations.265 In Germany, although criminal liability is restricted to natural persons, nancial sanctions can be imposed on corporations when one of their ofcers has committed a crime on its behalf.266 Domestic laws provide for the prosecution of legal entities for war crimes, crimes against humanity and genocide in Australia,267 Belgium, Canada,268 the Netherlands and the UK. In France, it is possible to hold a corporation criminally responsible for genocide and crimes against humanity. In Norway, a corporation can be held criminally responsible for crimes against humanity and war crimes, and in the United States, Japan and India for war crimes.269 Generally, domestic law regimes establish criminal jurisdiction on the basis of territory (when the offence is committed within the territory of the country or the alleged perpetrator is present there) or on nationality (the alleged perpetrator or the victim is a national of this country).270

262 263 265

266 267

268

269

270

See Ramasastry and Thompson, Commerce, Crime and Conict, p. 13. 264 See ibid. RS 311.0 Code Pnal, Art. 102. Florence Parodi, Les Socits militaires et de scurit prives en droit international et droit compar, PhD Thesis, Universit Paris I Panthon-Sorbonne (2009), pp. 3512 (on le with authors). On German law, see Weigend, Societas delinquere non potest?, p. 928. Kyriakakis, Australian Prosecution of Corporations, argues that the international crimes provisions in Australian law could lead that state to play a normative role in the development of corporate accountability (p. 826). See W. Cory Wanless, Corporate Liability for International Crimes under Canadas Crimes against Humanity and War Crimes Act (2009) 7 JICJ 20121, esp. 220, arguing that Canadian law may act as a deterrent factor for Canadian corporations. Ramasastry and Thompson, Commerce, Crime and Conict, p. 30. See also Robinson, Corporate Culture (n. 261 above) for an overview of corporate criminal responsibility in twenty countries. See Nathalie Brahier, Les Principes de territorialit et de personnalit et leurs effets en droit pnal international in Laurent Moreillon, Aude Bichovsky and Maryam Massrouri

establishing international criminal responsibility 597

As for the territorial ground of jurisdiction, PMSCs often carry out activities in unstable countries where the judicial system might have collapsed. But if the headquarters or management is based in another country and it can be demonstrated that the decision that led to the commission of a crime was taken there, that country could also have jurisdiction. If the alleged crime has been committed by a subsidiary, establishing jurisdiction might be more difcult. Indeed, linking a subsidiary incorporated in country A that might have committed a crime in country B to a parent company incorporated in country C and having business ofces in countries D and E might not be an easy task.271 This is indeed a major issue when it comes to PMSCs.

2 Individual criminal responsibility

There is no question in international law that individuals bear criminal responsibility for their participation in international crimes, such as war crimes, crimes against humanity or genocide and the crime of aggression. Thus, while in existing international tribunals it may not be possible to prosecute PMSCs as rms for criminal activity at the present time, it is possible to prosecute employees and directors of PMSCs for international crimes. The constitutive elements of international crimes do not pose any particular problems with regard to PMSC personnel: the rules do not distinguish whether someone is hired by a company or acts as a simple individual; all crimes apply to all individuals and their responsibility can be engaged when they do not respect the law.272 Provisions concerning war crimes equally apply to civilians or to combatants, rendering the status of PMSC personnel under IHL irrelevant to the issue of

271 272

(eds.), Droit pnal humanitaire, 2nd edn (Basel: Helbing Lichtenhahn Bruylant, 2009), and Ramasastry and Thompson, Commerce, Crime and Conict, pp. 1617. Fafo, Business and International Crimes, Report 467, pp. 323. For the constitutive elements of crimes, which pose no issue specic to PMSCs and therefore will not be discussed here, see K. Doermann, Elements of Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (Cambridge University Press, 2003); A. Cassese, P. Gaeta and J. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), vol. 1 (Elements of Crimes); C. Laucci, Code annot de la Cour pnale internationale (Leiden: Martinus Nijhoff, 2008), vol. 1 (20046), and C. Laucci, Code annot de la Cour pnale internationale (Leiden: Martinus Nijhoff, 2009), vol. 2 (2007); Gunal Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford University Press, 2005); O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn (Munich: CH Beck/Hart, 2008).

598 responsibility for violations of international law

prosecution. That being said, it should be recalled that an impugned act must have a nexus to an armed conict in order for it to be a war crime. Below, we will explore the various forms of participation in international crimes, focusing on aspects of participation that are especially pertinent for PMSCs. There are several important differences for the PMSC industry in this respect as compared with other corporate (private) actors that may be involved in war crimes. The fact that PMSC staff may easily become direct perpetrators of war crimes sets them apart from other business employees, who are more likely to be involved in such crimes through complicity or by aiding and abetting. In addition, superior or command responsibility is important for this industry and for other entities employing PMSCs. Finally the various forms of joint criminal enterprise and its repercussions for PMSCs will be addressed. Some argue that as international tribunals focus on only the most serious crimes, it is unlikely that a PMSC employee will be prosecuted at such a level. That may or may not be true: the sheer size of the industry may lead prosecutors to seek to curtail the worst aspects of some behaviour and show that indiscriminately shooting civilians will not be tolerated. In any case, states are obliged under the Geneva Conventions and Additional Protocols to prosecute grave breaches and other war crimes. In addition, states that have ratied the Rome Statute must implement it and, according to the principle of complementarity, should prosecute PMSC employees on the grounds in the statute pursuant to their national law. Under the ICC, Articles 11, 12 and 13 dene the conditions under which the tribunal will be competent to deal with international crimes. Under Article 11, the Court is competent only for crimes committed after the entry into force of the Rome Statute, namely 1 July 2002. The jurisdiction of the ICC extends not only to crimes committed in the territory of states parties to the convention; it also covers crimes committed by a national of one of the state parties. This means that the ICC may have jurisdiction over acts committed by private contractors having the nationality of one of the states parties to the statute. Although the United States (the biggest current state user of PMSCs) is not a party to the ICC, contractors with dual nationality can nevertheless be prosecuted. In addition, under Article 13(b) of the ICC Statute, the UN Security Council can refer to the Court situations where international crimes might have been committed even if the state where they occurred is not a party to the treaty. In the case of the United States, however, the likelihood that it will do so is remote at best.

establishing international criminal responsibility 599

2.1 The PMSC employee as the perpetrator of a crime The most straightforward form of participation in a crime is as the direct perpetrator of the offence.273 An employee of a PMSC who materially perpetrates the offence for instance, who kills or tortures a POW or indiscriminately shoots civilians can be prosecuted under IHL or the Rome Statute. Some studies have observed that in particular the private security industry is more at risk of its employees being direct perpetrators of such crimes than other businesses.274 It is true that their access to weapons and role in situations of armed conict may mean that security contractors are perhaps more liable than others to become direct perpetrators. However, the events in Abu Ghraib prison in Iraq, where PMSC contractors working as translators and interrogators were implicated in the torture of detainees, serve to remind us that persons employed in other facets of the PMSC industry may also become direct perpetrators of crimes.275 When many persons commit the material element of a crime through their direct and personal or physical participation, they may be held liable for co-perpetration. 2.2 The PMSC employee as the instigator of an international crime The concept of instigation is covered by Article 25(3)(b) of the Rome Statute, which provides that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person orders, solicits or induces the commission of such a crime which in fact occurs or is attempted.276 The instigator of the crime is

273

274

275

276

According to the ICTR, Committing refers to the direct personal or physical participation of an accused in the actual acts which constitute the material elements of a crime under the Statute. Prosecutor v. Semanza (Trial Chamber) ICTR-9720 (15 May 2003), para. 383 (Semanza (TC 2003)). Rome Statute, Art. 25(3)(a). International Commission of Jurists, Corporate Complicity & Legal Accountability, vol. 2, p. 5. The increasing use of PMSCs as operators of armed drones is another example of a less visible but potentially equally direct perpetrator in crimes. See Prosecutor v. Krsti (Trial Chamber) IT-9833 (2 August 2001), para. 601 (Krsti (TC 2001)). See also K. Ambos, Article 25: Individual Criminal Responsibility in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn (Munich: CH Beck/Hart, 2008), p. 753; H. Olsolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes (Oxford: Hart, 2009), pp. 13542; and van Sliedregt, Criminal Responsibility of Individuals, pp. 7786.

600 responsibility for violations of international law

therefore the person who prompts another to commit an offence.277 There is an important distinction between ordering and inducing the commission of a crime. The notion of ordering implies the existence of a commandersubordinate relationship278 and a duty of the subordinate to defer to the order de jure or de facto.279 An employee of a PMSC enjoying a position of authority in relation to an individual, either by virtue of domestic law or in given circumstances, can therefore be liable under international criminal law if he orders the commission of an unlawful act. Soliciting or inducing, in contrast, do not imply the existence of a commandersubordinate relationship. Factors enabling a person to inuence anothers behaviour to induce him or her to commit a crime can be diverse, including family ties, friendship, employment and religious or ideological inuence.280 Using the denition provided by Blacks Law Dictionary, Albin Eser comes to the conclusion that soliciting and inducing both refer to a similar situation: soliciting means to command, authorize, urge, incite, request or advise while inducing means to affect, cause, inuence an act or course of conduct, lead by persuasion or reasoning.281 In both cases, the direct perpetrator of the act is led in his decision to commit the unlawful act by the instigator. When employees or directors of PMSCs purport to authorize, urge, incite, request or advise other individuals to decide to commit an unlawful act, they may be held responsible for this form of participation in the commission of an unlawful act. A considerable part of the PMSC market comprises training armed forces and providing strategic advice. The strategic advice allegedly provided by the PMSC MPRI in Croatia in relation to Operation Storm in 1995 (and in the course of which war
Krsti (TC 2001), para. 601. See also Ambos, Article 25, p. 753. The author refers to the instigator as inuencing a person to commit an international crime. Krsti (TC 2001), para. 601: Ordering entails a person in a position of authority using that position to convince another to commit an offence. See also Prosecutor v. Akayesu (Trial Chamber Judgment) ICTR-964-T (2 September 1998), para. 483. Prosecutor v. Kordi and erkez (Trial Chamber Judgment) IT-9514/T-2 (26 February 2001), para. 388: [N]o formal superior-subordinate relationship is required for a nding of ordering so long as it is demonstrated that the accused possessed the authority to order (Kordi and erkez (TC Judgment 2001)). See Prosecutor v. Ori (Trial Chamber) IT-0368 (30 June 2006), para. 272. See also Olsolo, Criminal Responsibility of Senior Leaders, p. 143. See A. Eser, Individual Criminal Responsibility in A. Cassese, P. Gaeta and J. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), p. 796, and Olsolo, Criminal Responsibility of Senior Leaders, pp. 1427.

277

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establishing international criminal responsibility 601

crimes were allegedly committed) is sometimes cited as a potential example of this form of participation in war crimes.282 Another possible example comes from an alleged statement by a commander of Executive Outcomes (EO) to EO pilots in Sierra Leone who radioed for instructions when they found they could not distinguish between combatants and civilians: the commander instructed them to kill everybody and the pilots reportedly complied.283

2.3 PMSC employees who aid, abet or otherwise assist the commission of an unlawful act Article 25(3)(c) of the Rome Statute provides that a person who, in order to facilitate the commission of a crime aids, abets or otherwise assists in the commission of a crime or an attempted crime, including providing the means for its commission, may be criminally responsible. In what follows we will outline some of the principal characteristics of acts that can entail the responsibility of the employees or directors of a PMSC for aiding, abetting or assisting in the perpetration of crimes. The ICTY and International Criminal Tribunal for Rwanda (ICTR) have repeatedly insisted that aiding and abetting are distinct concepts. In a nutshell, [a]iding means giving assistance to someone. Abetting, on the other hand, would involve facilitating the commission of an act by being sympathetic thereto.284 Article 25(3)(c) also criminalizes the more general participation through the provision of assistance in the commission of the unlawful act. In the jurisprudence, the notion of assistance has

282

283

284

See e.g. C. Lehnardt, Individual Liability of Private Military Personnel under International Criminal Law (2008) 19 EJIL 101534, 1023, evoking the possibility that MPRI prompted Croatian forces to lead the operation in the manner they did. The issue has come up in the trial of A. Gotovina at the ICTY. See www.icty.org (in particular the transcripts of the examination of witnesses such as Mr Repinc 13 January 2010, p. 26665, www.icty.org/x/cases/gotovina/trans/en/100113IT.htm) and M. Karnavas, Gathering Evidence in International Criminal Trials: The View of the Defence Lawyer in M. Bohlander (ed.), International Criminal Justice: A Critical Analysis of Institutions and Procedures (London: Cameron May, 2007), p. 135. T. Garmon, Domesticating International Corporate Responsibility: Holding Private Military Firms Accountable under the Alien Tort Claims Act (2003) 11 Tulane J Intl and Comparative L 325, 326 (citing E. Rubin, An Army of Ones Own: In Africa, Nations Hire a Corporation to Wage War, Harpers, February 1997, pp. 4455, 47. Prosecutor v. Kvoka (Trial Chamber Judgment) IT-9830/1-T (2 November 2001), para. 254: aiding and abetting, which may appear to be synonymous, are indeed different. (Kvoka (TC Judgment 2001)) See also Prosecutor v. Akayesu (Trial Chamber Judgment) ICTR-964-T (2 September 1998), para. 484; Semanza (TC 2003), para. 384.

602 responsibility for violations of international law

been interpreted broadly,285 to the point of accepting as a material element of complicity the simple presence of a person of authority in the place of commission of the unlawful act,286 or a simple omission287 if they have a direct and/or substantial effect on the commission of the unlawful act. In Tadi, the ICTY Trial Chamber considered all acts of assistance by words or acts that lend encouragement or support as actus reus under aiding and abetting.288 It considered that the accused does not need to be present at the place and time where and when the crime is committed289 and it does not matter whether the assistance is furnished before, during or after the commission of the unlawful act.290 Assistance can be diverse in form but it needs to be direct or to have a substantial effect on the commission of the unlawful act.291 The requirement that the act constitute a substantial contribution, which was established in the context of the international criminal tribunals, may be incorporated in
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286

287

288

289 290

291

Prosecutor v. Furundija (Trial Chamber Judgment) IT-9517/1-T (10 December 1998), paras. 235, 249: the actus reus of aiding and abetting in international criminal law requires practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime. (Furundija (TC Judgment 1998)). Prosecutor v. Vasiljevi (Trial Chamber) IT-9832 (29 November 2002), para. 70: An accused will incur individual criminal responsibility for aiding and abetting a crime under Article 7(1) where it is demonstrated that the accused carried out an act which consisted of practical assistance, encouragement or moral support to the principal offender of the crime. (Vasiljevi (TC 2002)). Vasiljevi (TC 2002), para. 70; Prosecutor v. Kunarac, Kova and Vukovi (Trial Chamber Judgment) IT-9623 and 23/1 (22 February 2001), para. 393. Prosecutor v. Blaki (Trial Chamber Judgment) IT-9514-T (3 March 2000), para. 284 (Blaki (TC Judgment 2000)). Prosecutor v. Tadi (Trial Chamber Judgment) IT-941-T (7 May 1997), para. 689 (Tadi (TC Judgment 1997)). Ibid., para. 691. Vasiljevi (TC 2002), para. 70; Blaki (TC Judgment 2000), para. 285; Prosecutor v. Aleksovski (Trial Chamber Judgment) IT-9514/1-T (25 June 1999), para. 62. For the case law of the ICTR, see Prosecutor v. Bagilishema (Trial Chamber) ICTR-951A (7 June 2001), para. 33 (Bagilishema (TC 2001)). See for the case law on this notion Furundija (TC Judgment 1998), paras. 23549 (conrmed on Appeal); Prosecutor v. Kayishema and Ruzindana (Trial Chamber) ICTR951-T (21 May 1999), para. 199; Semanza (TC 2003), para. 379; Prosecutor v. Delali (elebii case) (Trial Chamber Judgment) IT-9621-T (16 November 1998), paras. 3259 (elebii case (TC Judgment 1998)); Prosecutor v. Naletili and Martinovi (Trial Chamber Judgment) IT-9834-T (31 March 2003), para. 63. For interpretation of substantial effect, see Ambos, Article 25, p. 481; R. Cryer et al., An Introduction to International Criminal Law and Procedure (Cambridge University Press, 2007), p. 311. Although the ICC has yet to examine the requirements of Art. 25(3)(c) of the statute, it is worth mentioning that this article does not mention the substantial effect element.

establishing international criminal responsibility 603

interpretations under the ICC Statute, despite the fact that the text of the provision does not specically mention it.292 To establish a substantial contribution to an unlawful act, the proof of a direct link of causality between the assistance and the unlawful act is not required. According to the case law, it is sufcient if the criminal act most probably would not have occurred in the same way had someone not acted in the role that the accused in fact assumed.293 It is therefore not required to prove that the unlawful act would not have occurred without the conduct of the accomplice.294 These statements help to rene the concept, but the legal literature recognizes the difculty of nding an abstract denition of substantial assistance.295 The acts of PMSC employees or directors may constitute participation in international crimes if their activities amount to substantial assistance in the commission of the crime and if they can be proved to have the requisite mens rea for aiding and abetting. The key element is that it is necessary to prove that, while providing the assistance or means for the unlawful act, the contractor had knowledge of the unlawful character of the act to which he gave his support.296 According to the ICTY, it is not necessary that the aider/abettor shared the intent of the direct perpetrator, but he had to be aware of the mental state of the perpetrator and of the elements of the crime.297 However, Article 25(3)(c) of the Rome Statute clearly stipulates that assistance must be given for the purpose of facilitating the commission of the crime. Therefore for a PMSC employee or director to be held liable for aiding and abetting under the Rome Statute, the prosecution will have to demonstrate knowledge and intent of the accused. PMSC employees providing general security services

292 293 294

295

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Eser, Individual Criminal Responsibility, p. 800. Tadi (TC Judgment 1997), para. 688. Bagilishema (TC 2001), para. 33: The Chamber agrees with the view expressed in Furundija, that the assistance given by the accomplice need not constitute an indispensable element, i.e. a conditio sine qua non, of the acts of the perpetrator. Eser, Individual Criminal Responsibility, p. 801, citing also Ambos, Article 25, margin note 18 and A. Serini, Individual Criminal Responsibility in F. Lattanzi (ed.), The International Criminal Court: Comments on the Draft Statute (Naples: Editoriale Scientica, 1998), p. 140. See, inter alia, Vasiljevi (TC 2002), para. 71: To establish the mens rea of aiding and abetting, it must be demonstrated that the aider and abettor knew (in the sense that he was aware) that his own acts assisted in the commission of the specic crime in question by the principal offender. (Afrmed by Appeals Chamber in Vasiljevi (AC, 25 February 2004, para. 102) and in Blaki (AC, 29 July 2004, para. 45)). Prosecutor v. Aleksovski (Appeals Chamber) IT-9514/1 (24 March 2000), para. 162.

604 responsibility for violations of international law

without any knowledge that such acts are assisting the commission of an offence under international criminal law therefore may not be responsible for aiding or abetting the perpetration of the crime. But if they were to have knowledge that, for example, people were being unlawfully detained inside a building they were guarding, and their mandate included controlling entry to and exits from the building, it may not be a big step from there to prove that they had the mens rea to assist in the unlawful detention.298 PMSC employees or directors providing a state army or a militia with the know-how necessary to conduct an unlawful military operation or a military operation involving the commission of crimes could be liable under Article 25(3)(c) of the Rome Statute.299 The same goes when contractors plan300 the commission of an offence or endorse a plan proposed by another person.301 The provision of weapons to perpetrators might also be considered as aiding and abetting302 or more directly as providing the means for the commission of an offence. Bearing in mind the specic mens rea requirement for aiding and abetting, one may surmise that PMSCs who knowingly provide technological expertise for the general programming and maintenance of weapons systems may nd their criminal responsibility engaged if crimes are committed using those systems. In more limited circumstances, mere tacit approval and encouragement of a crime may constitute aiding and abetting. The ICTR Appeals Chamber held that it has been the authority of the accused combined with his presence at or very near the crime scene, especially if considered together
298

299 300

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302

In other tribunals, the intent requirement is much looser. See e.g. Furundija (TC Judgment 1998), para. 246: it is not necessary that the aider and abettor should know the precise crime that was intended and which in the event was committed. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor. See also Lehnardt, Individual Liability of Private Military Personnel, p. 1024. Lehnardt, ibid. Planning a crime can also be a form of participation under Art. 25(3)(b) and (d) of the Rome Statute. See Semanza (TC 2003), para. 380: Planning envisions one or more persons formulating a method of design or action, procedure, or arrangement for the accomplishment of a particular crime. The level of participation in the planning must be substantial such as actually formulating the criminal plan or endorsing a plan proposed by another. See Eser, Individual Criminal Responsibility, p. 796. See also Lehnardt, Individual Liability of Private Military Personnel, p. 1023. See Prosecutor v. Ntakirutimana (Appeal Chamber) ICTR-9610 (13 December 2004), paras. 530 and 532.

establishing international criminal responsibility 605

with his prior conduct, which allows the conclusion that the accuseds conduct amounted to ofcial sanction of the crime and thus substantially contributed to it.303 This may be considered to nuance a previous broader statement of the ICTR Trial Chamber, which considered that [m]ere encouragement or moral support by an aider and abettor may amount to assistance.304 The fact that the tacit approval may suggest ofcial sanction of the crime suggests that this aspect of aiding and abetting may be less likely to concern PMSC employees, but it will obviously depend on the facts should the case arise. The essential criteria in this regard would be to know whether the contractors are endowed with authority de jure or de facto. One may be tempted to draw parallels between PMSC employees and regular soldiers and between senior staff or directors of PMSCs and commanding ofcers in order to infer authority on the part of PMSC directors, but such analogies should perhaps be made with caution. As we have argued elsewhere, in contrast to regular armed forces, PMSCs often do not wear uniforms, which means that the direct perpetrator may have no idea as to the rank of a PMSC employee within his company. On the other hand, de facto authority may be a real issue in states where PMSCs play a major role in training newly formed armed forces. In circumstances in which PMSC employees or directors are assigned tasks giving them de facto control over soldiers of states whose armed forces are not fully developed, their silent presence in the place where crimes occur could be sufcient to engage their responsibility. If, for example, PMSC staff in general are perceived as proxies for the armed forces of a superpower state, the rank of the PMSC employee within his company may be totally irrelevant, as it may be the association of the PMSC with the dominant state that lends the air of authority. At the very least, contractors should not encourage international crimes that are occurring in their presence through physical acts or verbal statements,305 or they should openly and forcefully discourage and denounce criminal behaviour in order to avoid aiding and abetting. Finally, it is important to note that a person can be tried for complicity in a crime even if the principal perpetrator has not been identied or if his or her guilt has not been established.306

303 304 305

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Prosecutor v. Muvunyi (Appeals Chamber) ICTR-0055A-A (29 August 2008), para. 80. Bagilishema (TC 2001), para. 33. On physical acts and verbal statements as an assistance to the commission of an offence Semanza (TC 2003), para. 385. See A. Clapham and S. Jerbi, Categories of Corporate Complicity in Human Rights Abuses, based on a background paper for the Global Compact dialogue on the role of

606 responsibility for violations of international law

Although not an international decision, the Dutch case of Frans van Anraat is worth mentioning in this context.307 Frans van Anraat, a Dutch businessman, was accused in the District Court of the Hague of complicity in war crimes and genocide for having furnished chemical raw materials (TDG) necessary for the production of poisonous (mustard) gas to Saddam Hussein and the Republic of Iraq between April 1984 and August 1988. This is a gas that was used by Saddam Husseins regime to kill Kurdish civilians. Van Anraat was acquitted of the count of complicity in genocide because the judges concluded that the evidence submitted did not establish with a sufcient degree of certainty that the defendant knew prior to and at the time of his acts about the intention of the principals to commit genocide against Kurdish people.308 With regard to the charge of complicity in war crimes, van Anraat argued, inter alia, that he did not know that the TDG he supplied to Saddam Hussein would be used for the production of chemical weapons. The Court held that the evidence established that the quantities of TDG as supplied by the defendant could only serve for the production of mustard gas and not for use in the textile industry as argued by the defendant. Van Anraat was thus found guilty of complicity in war crimes and sentenced to fteen years imprisonment. The District Court also granted compensation to fteen victims.309 The decision was conrmed on appeal. On the count of complicity in war crimes, the Court concluded that:
Through his conscious contribution to the production of mustard gas in a country at war, the defendant knew under those circumstances that he was the one who supplied the material and created the occasion for the actual use of that gas, in the sense that he was very aware of the fact that in the given circumstances the use of this gas could not and would not fail to
the private sector in zones of conict (212 March 2001) New York, www.reports-andmaterials.org/Clapham-Jerbi-paper.htm. A second case in Dutch courts involved the prosecution of a businessman, Guus van Kouwenhoven with complicity in war crimes on grounds that he supplied the means for war crimes to Charles Taylor. He was acquitted on this count due to a lack of evidence, but was convicted by a lower court on a separate charge of having violated a UN arms embargo. That conviction was subsequently reversed on appeal, but the Dutch Supreme Court ordered a new trial on 20 April 2010. See http://zoeken.rechtspraak.nl/resultpage. aspx?snelzoeken=true&searchtype=ljn&ljn=AY5160&u_ljn=AY5160 for an English translation of the trial court judgment and BBC, New Trial for Dutch Arms Smuggler Guus Kouwenhoven (21 April 2010), http://news.bbc.co.uk/2/hi/europe/8633908.stm. This acquittal has been conrmed by the Appeal and the Supreme Courts. See case of Frans van Anraat, Court of Appeal in The Hague, judgment, 9 May 2007, English translation, www.haguejusticeportal.net/eCache/DEF/7/548.html. Judgment, case against Frans van Anraat, District Court, The Hague, 23 December 2005, English translation, www.haguejusticeportal.net/eCache/DEF/4/497.html.

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materialise. In different words: the defendant was very aware of the fact that in the ordinary cause [sic] of events the gas was going to be used. In this respect the Court assumes that the defendant, notwithstanding his statements concerning his relevant knowledge, was aware of the also then known unscrupulous character of the then Iraqi regime.310

The appeal court increased van Anraats sentence to seventeen years imprisonment, but disallowed the claims for damage from victims.311 This decision may be particularly relevant for PMSCs as some of them could provide the means to commit crimes by supplying manpower, arms, munitions, intelligence or training to armed groups or armed forces.312

2.4 Participation in the commission of a crime in concert or joint criminal enterprise Joint criminal enterprise as a mode of participation in international crimes was developed in the case law of the ad hoc tribunals, the appeal decision of the ICTY in Tadi being the key case.313 Under this doctrine, all participants in a common plan or design may be held criminally liable

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Case of Frans van Anraat, Court of Appeal in The Hague, judgment, 9 May 2007, English translation, www.haguejusticeportal.net/eCache/DEF/7/548.html, para. 11.16. For a commentary on this judgment, see Harmen van der Wilt, Genocide v. War Crimes in the Van Anraat Appeal (2008) 6 JICJ 557. This sentence was reduced by six months by the Supreme Court but the verdict was conrmed. Beyond participating in war crimes through provision of weapons, PMSCs may also violate arms embargoes. For example, at the end of the 1990s, Sandline International was hired by the government of Sierrra Leone to defeat rebels. The company brought arms into the country despite a UN embargo and (possibly) with the knowledge of the British government: Peter Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca: Cornell University Press, 2003), pp. 11215. Prosecutor v. Tadi (Appeals Chamber Judgment) IT-941-A (15 July 1999) (Tadi (AC Judgment 1999)); Prosecutor v. Branin (Trial Chamber Judgment) IT-9936-T (1 September 2004); Krsti (TC 2001); Prosecutor v. Staki (Appeal Judgment) IT-9724 (22 March 2006); Prosecutor v. Staki (Trial Chamber Judgment) IT-9724 (31 July 2003); Prosecutor v. Rwamakuba (Appeal Chamber, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide) ICTR-9844-AR72.4 (22 October 2004); Prosecutor v. Ntakirutimana (Appeal Chamber) ICTR-9610 (13 December 2004); Prosecutor v. Simba (Trial Chamber Judgment) ICTR0176-T (13 December 2005); Prosecutor v. Mpambara (Trial Chamber Judgment) ICTR-0165-T (11 September 2006). See also Olsolo, Criminal Responsibility of Senior Leaders, pp. 337; van Sliedregt, Criminal Responsibility of Individuals, pp. 716 and 94 109; and Katrina Gustafson, The Requirement of an Express Agreement for Joint Criminal Enterprise Liability: A Critique of Branin (2007) 5 JICJ 13458.

608 responsibility for violations of international law

for the crimes committed in furtherance of the common plan.314 Three different categories of joint criminal enterprise (JCE) have been developed and accepted by international criminal jurisprudence.315 The rst category centres on a common intentional purpose.316 This form of JCE occurs when all the participants share the intention of carrying out a common plan involving the commission of a crime and contribute substantially to its realization. The second form involves participation in an institutionalized common criminal plan. Under this form of JCE, everyone who participates in a system where crimes are being committed will be potentially liable for the crimes committed in the framework of this system, provided that he knew that such crimes were being committed and nevertheless continued to participate in the system.317 The classic example of systemic JCE covers people working in a detention camp where detainees are being ill-treated and tortured.318 Not only the director of the camp and those who impose ill-treatments, but also the administrative staff who register the detainees, pay the guards etc., could be held liable for the crimes committed in the camp if the circumstances allow a tribunal to conclude that they were aware of the system of repression and intended to contribute to it. For this form of JCE, no common plan is required319 but there is a clear requirement of an intent to participate in the commission of the unlawful act or at least to further the system.320

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Joint criminal enterprise has not been without controversy: for an overview of the doctrine, see A. M. Danner and J. S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility and the Development of International Criminal Law (2005) 93 California L Rev 75169; for criticism, see, inter alia, S. Powles, Joint Criminal Enterprise: Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity? (2004) 2 JICJ 60619; W. Jordash and P. van Tuyl, Failure to Carry the Burden of Proof: How Joint Criminal Enterprise Lost its Way at the Special Court for Sierra Leone (2010) 8 JICJ 591613. See e.g. Ambos, Article 25, pp. 74952; Antonio Cassese, The Proper Limits of Individual Responsibility Under the Doctrine of Joint Criminal Enterprise (2007) 5 JICJ 10933; B. Swart, Modes of International Criminal Liability in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (London: Sweet & Maxwell, 2009), p. 84; and Olsolo, Criminal Responsibility of Senior Leaders. Cassese, The Proper Limits of Individual Responsibility, p. 111. Kvoka (TC Judgment 2001); Prosecutor v. Kvoka (Appeals Chamber Judgment) IT9830/1-A (28 February 2005) (Kvoka (AC Judgment 2005)); Prosecutor v. Limaj (Trial Chamber Judgment) IT-0366-T (30 November 2005), para. 511. Kvoka (AC Judgment 2005), para. 82. Cassese, The Proper Limits of Individual Responsibility, pp. 11213. Kvoka (AC Judgment 2005), para. 82.

establishing international criminal responsibility 609

In our view, it is possible that the involvement of the personnel of CACI and Titan corporations in the ill-treatment of prisoners at Abu Ghraib prison could satisfy the test for this form of JCE. The required mens rea is clear knowledge and intent to commit the crime. The question of whether the accused must have substantially contributed to the institutionalized crimes has received different answers.321 The third one is the broadest form of JCE. It is based on the foresight and voluntary acceptance of the risk that crimes not part of the common plan might occur in the course of the realization of a common plan pursuing a criminal design. Under this form of JCE, a person who is part of a common plan can be held criminally liable for crimes that are neither planned nor agreed upon that are committed in the furtherance of the common plan (by members of the common plan or others) if it can be demonstrated that theses crimes were a foreseeable consequence of the implementation of the plan and that the person accepted the risk.322 The application of this category of JCE to crimes of specic intent like genocide, persecution or aggression remains controversial.323 In such cases, the actus reus of the accused is the aiding and abetting he gives to the unlawful common purpose and

321

322

323

Kvoka (TC Judgment 2001), para. 324; Kvoka (AC Judgment 2005), paras. 97 and 599; Prosecutor v. Limaj (Trial Chamber Judgment) IT-0366-T (30 November 2005), paras. 66570; Tadi (AC Judgment 1999), para. 227. For Cassese, the requirement that the act of the accused had a substantial effect on the commission of the crime is indispensable. See Cassese, The Proper Limits of Individual Responsibility, p. 128. See also K. Ambos, Joint Criminal Enterprise and Command Responsibility (2007) 5 JICJ 15983, 172. Tadi (AC Judgment 1999), para. 232. Krsti (TC 2001), para. 616; Prosecutor v. Staki (Appeal Judgment) IT-9724 (22 March 2006), paras. 9397; Prosecutor v. Karemera and ors (Appeal Chamber Decision on Jurisdictional Appeals: Joint Criminal Enterprise) ICTR-9844 (12 April 2006), paras. 1118. See also Cassese, The Proper Limits of Individual Responsibility, p. 113, who points out that this third form might not be usable in regard to crime requiring a specic intent like genocide, persecution or aggression, see pp. 1212. See Prosecutor v. Staki (Trial Chamber Judgment) IT-9724 (31 July 2003), para. 530 stating that the application of a lower degree of mens rea than the one dolus specialis to the crime of genocide would be incompatible with the denition of genocide under Art. 4(3)(a) of the ICTY Statute. See also Prosecutor v. Branin (Appeals Chamber, Decision on Interlocutory Appeal) IT-9936-A (19 March 2004), para. 7; Mettraux, International Crimes, p. 265. Elies van Sliedregt, Joint Criminal Enterprise as a Pathway to Convicting Individuals for Genocide (2007) 5 JICJ 184207, arguing that convictions for genocide based upon the application of the third category of JCE are justiable.

610 responsibility for violations of international law

not the specic unlawful crime.324 The mens rea can come down to advertent recklessness.325 This third form of JCE may be relevant for employees and directors of PMSCs: if they participate in illegal projects such as an operation aiming at plundering natural resources as security guards for instance they could be held liable under this form of JCE for crimes of local soldiers that are not part of the common plan on the grounds that the objective of the project itself is illegal. Nevertheless, this third form of JCE is probably more relevant for corporations or leaders involved in a criminal plan who themselves hired, by common agreement or by the decision of one of the member of the JCE, a PMSC or a local militia in the furtherance of their plan. In this case, each member of the JCE could be held liable for the crimes committed by security forces or militias even if he or she did not take part in the decision to have recourse to them. The doctrine of JCE has been criticized by many scholars and practitioners.326 It does not appear in the ICC Statute as such, but the notion of co-perpetrator and complicity in crimes committed by a group of persons as laid down in Article 25(3)(a) and (d) might be as broad as JCE as developed by the ad hoc tribunals. Article 25(3) of the ICC Statute provides for the criminal responsibility of a person who:
(a) Commits a crime [within the ICCs jurisdiction], whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

324 325

Tadi (AC Judgment 1999), at 191 ff. Recklessness is: [a] form of mens rea that amounts to less than intention but more than negligence. Many common-law offences can be committed either intentionally or recklessly, and it is now common for statutes to create offences of recklessness. Recklessness has normally been held to have a subjective meaning of being aware of the risk of a particular consequence arising from ones actions but deciding nonetheless to continue with ones actions and take the risk where it is unreasonable to do so.

326

J. Law and E. A. Martin (eds.), A Dictionary of Law (Oxford University Press, 2009). See e.g. Cassese, The Proper Limits of Individual Responsibility; Jens David Ohlin, Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise (2007) 5 JICJ 69. See also Powles, Joint Criminal Enterprise, pp. 60619; Jordash and van Tuyl, Failure to Carry the Burden of Proof , pp. 591613.

establishing international criminal responsibility 611

(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime.

We will rst canvass the responsibility of co-perpetrators under Article 25(3)(a) and then turn to the residual complicity liability of Article 25(3)(d). The notion of co-perpetration not only refers to groups whose principal activity is a criminal activity,327 but the common plan must include the commission of a crime.328 Indeed, in the Decision on the Conrmation of Charges in the Lubanga case, the judges held that:
343. In the view of the Chamber, the rst objective requirement of coperpetration based on joint control over the crime is the existence of an agreement or common plan between two or more persons. Accordingly, participation in the commission of a crime without co-ordination with ones co-perpetrators falls outside the scope of co-perpetration within the meaning of article 25 (3)(a) of the Statute. 344. The common plan must include an element of criminality, although it does not need to be specically directed at the commission of a crime. It sufces: i. that the co-perpetrators have agreed (a) to start the implementation of the common plan to achieve a non-criminal goal, and (b) to only commit the crime if certain conditions are met; or ii. that the co-perpetrators (a) are aware of the risk that implementation of the common plan (which is specically directed at the achievement of a non-criminal goal) will result in the commission of the crime, and (b) accept such an outcome.

327

328

See however Cristina Chiomenti, Corporations and the International Criminal Court in O. de Schutter (ed.), Transnational Corporations and Human Rights (Oxford: Hart, 2006), p. 294, who discusses the applicability of the notion of criminal association to companies. Prosecutor v. Thomas Lubanga Dyilo (Pre-Trial Chamber I, Decision on the conrmation of charges) ICC-01/0401/06 (29 January 2007), para. 344 (Lubanga (PTC Decision 2007)); and 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), para. 523 (Katanga and ors (PTC Decision 2008)).

612 responsibility for violations of international law

345. Furthermore, the Chamber considers that the agreement need not be explicit and that its existence can be inferred from the subsequent concerted action of the co-perpetrators.329

According to this decision, the common plan does not need to be criminal as such for the participant being responsible for the crimes committed during its realization. Thus, the potential liability might seem broader than the one that can be attributed under the third form of JCE. However, under the rulings of the ICC Pre-Trial Chambers, the coperpetrator has to have exercised control over the commission of the crime through his substantial contribution.330 According to the Pre-Trial Chamber, JCE remains a residual form of liability.331 Furthermore, it should be recalled that the mens rea required by Article 30 of the Rome Statute remains higher than the one required for the third form of JCE.332 The existence of this form of participation in international crimes should raise red ags for PMSCs when accepting a contract that is not per se criminal, but that the realization of which might imply the commission of international crimes, such as a project to exploit natural resources in a country struggling with an armed conict (e.g. Congo or Sudan, as well as a number of countries in Latin America). The contract could be interpreted as a form of agreement with regard to the project or plan. If crimes are committed in the course of the project (e.g. population displacements that degenerate into massacres, human rights violations during local protests against the project that amount to crimes against humanity, security forces ghting against demonstrators or civilian resistance etc.) and if it can be inferred or deduced that the coperpetrators (in this case, people who planned the exploitation of natural resources, including PMSC personnel) were aware that such crimes might occur and accepted to pursue their project nonetheless, they could be held responsible for the crimes committed by other people. As security is often an important component of these projects, PMSCs could be particularly at risk when accepting to take part in a project in a conict zone or in a country controlled by a dictatorial government. This mode

329 330

331 332

Lubanga (PTC Decision 2007). Ibid., para. 322; Katanga and ors (PTC Decision 2008), paras. 4806; and Prosecutor v. Jean-Pierre Bemba Gombo (Pre-Trial Chamber II, Decision Pursuant to Art. 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), paras. 3478 (Bemba (PTC Decision 2009)). Lubanga (PTC Decision 2007), para. 337. van Sliedregt, Criminal Responsibility of Individuals, pp. 1089.

establishing international criminal responsibility 613

of liability is probably more likely to affect directors of PMSCs than their employees as one has to participate in the planning of the project, thus involved at a decision-making level. As for Article 25(3)(d), the inclusion of participation in any other way under the ICC Statute was done with such caution that the thrust of the provision is unclear. One commentator considers that there was a lack of expertise when the provision was drafted.333 According to the ICC Pre-Trial Chamber I, Article 25(3)(d):
provides for a residual form of accessory liability which makes it possible to criminalise those contributions to a crime which cannot be characterised as ordering, soliciting, inducing, aiding, abetting or assisting within the meaning of article 25 (3)(b) or article 25 (3)(c) of the Statute, by reason of the state of mind in which the contributions were made.334

Unlike JCE, the text of Article 25(3)(d) is not clear as to whether one needs to be member of a group in order to be liable under this head. The text of the article does not set out that requirement, but only species that the person must contribute to the commission or attempted commission of a crime by the group. The crime itself, however, has to be committed or attempted by a member of the group. For Albin Eser, what is not clear is whether the accused must contribute to the unlawful common purpose of the group or whether he must participate in the commission of the offence itself.335 The possible forms of liability under Article 25(3)(a) and (d) of the ICC Statute thus remain quite broad and relevant for possible prosecution of PMSC participation in international crimes.

2.5 Command responsibility The theory of command or superior responsibility may also be relevant with regard to the possible involvement of PMSC employees and directors in international crimes.336 Under this theory, a commander, or someone acting as a commander, may be held individually liable for the misconduct of his/her subordinates if he/she fails to supervise them properly and control their conduct. The principle of superior

333 334 335 336

See e.g. Eser, Individual Criminal Responsibility, p. 803. Lubanga (PTC Decision 2007), para. 337. Eser, Individual Criminal Responsibility, p. 803. See Ambos, JCE and Command Responsibility for a discussion on the relationship between the two forms of participation.

614 responsibility for violations of international law

responsibility applies both to military and civil superiors.337 It can also imply infraction by omission. The conviction of Japanese General Yamashita by the Supreme Court of the United States in 1946 may be the rst modern, developed assertion of the principle in regard to a military commander.338 According to the majority of the court, various international treaty provisions created an afrmative duty for the accused to take the measures within his power and appropriate in the circumstances to control the troops under his command in order to prevent violations of the laws of the war and to protect POWs and the civilian population.339 The principle of command responsibility has been conrmed by subsequent courts and tribunals, even though the conviction of General Yamashita himself was somewhat controversial in terms of whether sufcient knowledge (i.e. mens rea) on his part had been proven.340 Moreover, the principle of civilian superior responsibility was recognized and applied by the Tokyo and Nuremberg Tribunals. The Hirota case dealt with a government minister as a
337

338

339

340

For a general analysis of the superior responsibility principle, see R. Arnold and O. Triffterer, Article 28. Responsibility of Commanders and Other Superiors in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd edn (Munich: CH Beck/Hart, 2008); Antonio Cassese, International Criminal Law (Oxford University Press, 2008), p. 23642; Robert Kolb, Droit international pnal (Basel: Helbing Lichtenhahn Bruylant, 2008), pp. 18390; Gunal Mettraux, The Law of Command Responsibility (Oxford University Press, 2009); Olsolo, Criminal Responsibility of Senior Leaders, pp. 85108; van Sliedregt, Criminal Responsibility of Individuals, pp. 118222; and William A. Schabas, Symposium: The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal Over the Past Decade: Mens Rea and the International Criminal Tribunal for the Former Yugoslavia (2003) 37 New England L Rev 1015. On the specic issue of civil superior responsibility, see Greg R. Vetter, Command Responsibility of Non-military Superiors in the International Criminal Court (ICC) (2000) 25 Yale J Intl L 89 and Mettraux, The Law of Command Responsibility, pp. 103110. In re Yamashita, 327 US 1, 66 S Ct 340 (US 1946). The rst expression of command responsibility is considered to be an Ordinance at Orleans issued by Charles VII of France in 1439: Quoted in L. C. Green, Command Responsibility in International Humanitarian Law (1995) 5 Transnl L & Contemporary Problems 319, 321. Green also provides an overview of the history of command responsibility. The US Supreme Court pointed in particular to the Hague Regulations annexed to the Hague Convention IV of 1907 (in general and specically Art. 43), Art. 19 of the Tenth Hague Convention and Art. 26 of the Geneva Convention of 1929: In re Yamashita, at 1516. See Justices Murphy and Rutledge dissenting opinions, In re Yamashita, at 13. For criticism of the decision, see Cassese, International Criminal Law, pp. 2379; J. S. Martinez, Understanding Mens Rea in Command Responsibility: From Yamashita to Blaki and Beyond (2007) 5 JICJ 638, 6489; and Mettraux, The Law of Command Responsibility, pp. 58.

establishing international criminal responsibility 615

superior.341 Perhaps more relevant to PMSCs, in the Herman Roechling case,342 civilian corporate leaders were found guilty for their failure to take action in the rm under their control with regard to mistreatment of workers and POWs by the Gestapo.343 The doctrine of command responsibility ows from the laws of armed conict and was expressly enshrined in treaty law in 1977. Article 43 AP I requires armed forces to be under responsible command and Articles 86 and 87 of the same convention deal with the duties IHL imposes on the responsible commander.344 Article 87 obliges states to require commanders to prevent, suppress and report breaches of the protocol to the state and to initiate disciplinary or criminal proceedings against violators.345 The emphasis put on command responsibility is justied by its importance for the respect of IHL by subordinates. This has been recognized by the ICTY in the Hadihasanovi case, which applied it equally to

341

342

343

344

345

Hirota, the former Foreign Minister of Japan and former Prime Minister, was convicted, inter alia, of murders, mass rapes and other atrocities before the Tokyo Tribunal for having recklessly disregarded his legal duty by virtue of his ofces to take adequate steps to secure the observance and prevent breaches of law and customs of war. The inaction of the former minister was deemed criminal negligence by the tribunal. See United States and ors v. Araki and ors, International Military Tribunal for the Far East, Indictment (Annex no. A-6), Count 55, 1 November 1948 (English translation), www.ibiblio.org/hyperwar/PTO/IMTFE/IMTFE-A6.html. The Government Commissioner of the General Tribunal of the Military Government for the French Zone of Occupation in Germany v. Herman Roechling and ors, Trials of War Criminals before the Nuremberg Military Tribunals, vol. XIV, Appendix B, at 1075 (Roechling). Ibid., at 1092. The tribunal rejected the defence of lack of knowledge presented by one of the accused stating that [n]o superior may prefer this defence indenitely; for it is his duty to know what occurs in his organization, and lack of knowledge, therefore, can only be the result of criminal negligence. Ibid., at 1106. Ronen argues that Roechling may be as much a case of aiding and abetting as of superior responsibility, since the tribunal specied that the defendants were not accused of having ordered this horrible treatment, but of having permitted it; and indeed supported it, and in addition, of not having done their utmost to put an end to these abuses. Yal Ronen, Superior Responsibility of Civilians for International Crimes Committed in Civilian Settings (2010) 43 Vanderbilt J Transnl L 313, 323. E.g. Art. 86(2) AP I provides, The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach. Art. 87(1) and (3) AP I.

616 responsibility for violations of international law

non-international armed conicts.346 The Commentary to the Additional Protocols to the Geneva Conventions makes clear that the control of the superior is not limited to his or her own subordinates, but it can also have a territorial ambit, especially when forces under command are in an occupied territory.347 In addition, the denition of which forces are under the command of a particular commander should not be interpreted rigidly; the International Committee of the Red Cross (ICRC) Commentary indicates that a commander is responsible for reinforcements or others placed under his command even if he does not normally have command over them.348 This may be relevant to PMSCs taking a temporary commanding role while training forces, and, on the other hand, for commanders of regular armed forces temporarily assuming control over PMSCs.349 Finally, the principle of superior responsibility has been considered a customary rule.350 This brings us to the questions whether an employee or director of a PMSC can be considered to be a commander and if he can be held responsible for unlawful acts committed by persons under his supervision. We will not deal here with specic criteria such as the knowledge of the occurrence of the unlawful act as these requirements apply to any individual.351 The essential aspect is that in order to incur responsibility, PMSC employees or directors must have the material ability to prevent and punish the commission of the crime.352 They must have de facto control over their subordinates.353 Although this control does not have to be the same as that of a military commander, it must be comparable.354
346

347 348 349

350

351 352

353

354

Prosecutor v. Hadihasanovi (Trial Chamber Judgment) IT-0147-PT (12 November 2002), para. 174. Sandoz, Swinarski and Zimmermann, Commentary on the Additional Protocols, p. 1020. Ibid., p. 1109. Ronen, Israel, p. 456 indicates that Israeli military legal authorities seem to perceive military and police commanders to be superiors of PMSCs, and not the direct employers within the company itself. Prosecutor v. Blagojevi and Joki (Appeal Chamber) IT-0260 (9 May 2007), para. 281; Prosecutor v. Delali (elebii case) (Appeal Chamber Judgment) IT-9621 (20 February 2001), para. 195 (elebii case (AC Judgment 2001)); Kordi & erkez (TC Judgment 2001), para. 441. See Cassese, Gaeta and Jones (eds.), The Rome Statute. elebii case (TC Judgment 1998), paras. 3778. The Appeals Chamber stated that substantial inuence was not sufcient. See elebii case (AC Judgment 2001), paras. 266 and 303. elebii case (TC Judgment 1998), paras. 354 and 378; Semanza (TC 2003), para. 402; Kordi and erkez (TC Judgment 2001), paras. 41415. Prosecutor v. Aleksovski (Trial Chamber Judgment) IT-9514/1 (25 June 1999), para. 78. See Art. 28(2)(b) ICC Statute; Prosecutor v. Musema (Trial Chamber Judgment) ICTR-

establishing international criminal responsibility 617

As for the mens rea required, it remains contentious. The majority of the jurisprudence of the international criminal tribunals refuses to see command responsibility as a form of strict liability.355 The question of whether command responsibility imposes a duty of knowledge on the commander about his/her subordinates crimes remains open to debate within the international criminal tribunals jurisprudence.356 Article 28 of the ICC Statute deals with the responsibility of the hierarchical superior, distinguishing between military and civilian commanders.357 Article 28 provides that a military commander or a person effectively acting as a military commander shall be criminally responsible for failing to properly exercise control over forces under his command or control where he knew or should have known about the crimes and failed to take all necessary and reasonable measures within his power to prevent or repress or trigger investigation and prosecution of the crimes. This raises the question whether PMSC employees or directors may be military commanders or persons effectively acting as such. Above, we argued that for the most part, PMSC staff are not integrated into state armed forces. Since domestic law is a key factor in determining who is a commander,358 the general lack of integration of PMSCs into state armed forces is relevant, but each case must be decided on its own specic facts. In addition, military commanders of state armed forces that have integrated PMSC personnel may also be held responsible for wrongdoings of those PMSCs. However, the provision allows for responsibility for persons effectively acting as military commanders, which encompasses a broader array of

355

356

357

358

9613-A (27 January 2000), para. 378 (Musema (TC Judgment 2000)); Prosecutor v. Blaki (Appeal Chamber Judgment) IT-9514-A (29 July 2004), para. 67 (Blaki (AC Judgment 2004)); Semanza (TC 2003), para. 402; Prosecutor v. Ntagerura and ors (Trial Chamber Judgment) ICTR-9946-T (25 February 2004), para. 628. elebii case (AC Judgment 2001), para. 241, see also para. 226; Blaki (AC Judgment 2004), paras. 6263; Prosecutor v. Ori (Trial Chamber) IT-0368 (30 June 2006), paras. 20293. About controversies and debates surrounding command responsibility mens rea, see Martinez, Mens Rea in Command Responsibility, 6549; Chantal Meloni, Command Responsibility. Mode of Liability for the Crimes of Subordinates or Separate Offense of the Superior? (2007) 5 JICJ 61937 and Volker Nerlich, Superior Responsibility under Article 28 ICC Statute: For What Exactly is the Superior Held Responsible? (2007) 5 JICJ 66582. See UN Doc. A/CONF.183/C.1/SR.1, paras. 6783. For these reasons there is oppositon to the extension of superior responsibility to civilians. Arnold and Triffterer, Article 28, pp. 8245.

618 responsibility for violations of international law

individuals than simply de jure commanders.359 A military commander can be someone who assumes de facto control over paramilitary units, for example. Therefore, a member of a PMSC assuming de facto control over employees may be considered as a military commander under Article 28.360 According to Fenrick, Forces under the effective command and control of a commander are forces which are subordinate to the commander in either a de jure or de facto chain of command and to which the commander may give orders.361 Although the provisions of the Statutes of the ICTY and the ICTR do not set out how an individual can become a de facto military commander, the jurisprudence has considered that it is not the de jure quality of the commander that determines the nature of his responsibility under international criminal law. Sometimes, chains of command may be difcult to discern, but that does not necessarily hinder the applicability of the doctrine of superior responsibility and of IHL.362 As such, the lack of clarity of the chain of command regarding PMSCs which has been alleged in legal doctrine is not sufcient to impede the application of the doctrine of hierarchical command requirements to persons holding powers to prevent and repress violations of IHL over military forces. A commander can also be a de facto military commander when he assumes authority over armed forces that are not under his authority according to the applicable domestic law. It has sometimes been contended that PMSC staff supervised state military armed forces.363 In that case, PMSC employees or directors could be assimilated for the purposes of international criminal law to military commanders and be liable under Article 28(a) of the ICC Statute. In summary, domestic law is not conclusive to determining who is a military commander under international criminal law. Therefore, it may apply to PMSC staff who assume de facto command over armed
359

360

361 362

363

William J. Fenrick, Article 28: Responsibility of Commanders and Other Superiors in O. Triffterer (ed.), Commentary on the Rome Statute (Baden-Baden: Nomos, 1999), p. 517. The Pre-Trial Chamber in Bemba also held that the phrase refers to a broad category of superiors. Bemba (PTC Decision 2009), para. 410. Fenrick, Article 28, p. 518. elebii case (AC Judgment 2001), para. 193: Command structure, organised hastily, may well be in disorder and primitive. To enforce the law in these circumstances requires a determination of accountability not only of individual offenders but of their commanders or other superiors who were, based on evidence, in control of them without, however, a formal commission or appointment. 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.

establishing international criminal responsibility 619

forces.364 Many elements are taken into account to demonstrate the existence of de facto military command, but one criterion is key: the capacity to give military orders.365 When a PMSC employee is entitled de facto to give orders, he may become a military commander and engage his responsibility on that basis. The above scenarios presume that the PMSC employees in question operate in a military setting and capacity. Although it is rare that PMSCs may be given control over a states armed forces, is is not unheard of: the classic example is Executive Outcomes in Angola and Sierra Leone, and, to a certain extent, Sandline in Papua New Guinea.366 It may be that the possibility of contractors to be de facto or de jure military commanders is limited, but it remains real and should not be discounted.367 In most cases, civilian superior responsibility is more likely to be applied to PMSC employees and directors. Article 28(b) of the Rome Statute provides that a civilian may be a hierarchical commander;368 however, it

364

365

366 367

368

Arnold and Triffterer, Article 28, p. 826. The authors refer specically to the case of private subcontractors which may be used by a state in an attempt to avoid their responsibility. But as the authors conclude Everyone holding de facto authority over someone guilty of war crimes is subject to this doctrine, independently from afliation to a regular or irregular armed group. Prosecutor v. Kunarac, Kova and Vukovi (Trial Chamber Judgment) IT-9623 and 23/1 (22 February 2001), para. 397: The giving of orders or the exercise of powers generally attached to a military command are strong indications that an individual is indeed a commander. But these are not the sole relevant factors. See also Kordi & erkez (TC Judgment 2001), paras. 41924. See also Fenrick, Article 28, p. 518. See Singer, Corporate Warriors, pp. 10615. As for the mens rea required by Art. 28(a) of the ICC Statute, the Pre-Trial Chamber in the Bemba case stated that it covers two standards: the rst, expressed by the term knew, requires the existence of actual knowledge; the second, related to the term should have known, is in fact a form of negligence. Bemba (PTC Decision 2009), para. 429. Art. 28(b) states: With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

620 responsibility for violations of international law

does not refer exclusively to the civilian enjoying effective control over subordinates, as it does for military commanders, but requires that the civilian possess both effective authority and control in order to be treated as a superior. In addition, civilian commanders must have actual knowledge or be wilfully blind to the crimes, whereas military commanders superior responsibility may be engaged simply where they should have known.369 There is no case law as yet on Article 28(b), but one commentator has asserted that the rst limitation makes it clear that the drafters wanted to limit the liability of a civilian as compared to a military superior on the objective level.370 Two practical consequences are related to this limitation. First, the duty of control of civilian commanders extends only to that which is part of their relationship, while the military commanders duty of control extends to all the activities of his or her subordinates.371 The second consequence is related to the capacity of the civilian commander to sanction violations of IHL. It is generally admitted that civilian commanders do not have the same powers of sanction as military commanders.372 This needs therefore to be taken into account when one examines the ability of a civilian commander to prevent the commission of unlawful acts. In any case, the key principle is that a civilian can be criminally responsible for failing to exercise his responsibility as a superior. What needs to be proven is that the civilian in question had the means to prevent and/or repress the violations of IHL. In his Commentary, Fenrick mentions business leaders as an example of civilians who may be hierarchical commanders.373 As far as the Montreux Document on PMSCs is concerned, it refers to directors and managers of PMSCs as potential hierarchical superiors.374 Even if business leaders are likely to be hierarchical superiors, it is important to point out that the simple existence of a contract is not sufcient to deduce the capacity of the hierarchical superior to prevent and/or punish the

369

370

371

372 374

For an example of this distinction in mens rea being replicated in implementing legislation, see Canadas Crimes against Humanity and War Crimes Act (2000), c. 24, s. 7(1) and (2). Kai Ambos, Superior Responsibility in A. Cassese, P. Gaeta and J. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), p. 858. Ibid., p. 858, citing T. Wu and Y. Kang, Criminal Liability for the Actions of Subordinates: The Doctrine of Command Responsibility and its Analogues in United States Law (1997) 38 Harvard Intl LJ 291, 295. 373 Ambos, Superior Responsibility, p. 858. Fenrick, Article 28, p. 521. Montreux Document, Part I, point 27.

establishing international criminal responsibility 621

crime.375 That conclusion may only be reached by examining all the circumstances of the case. The application of the doctrine of superior responsibility to leaders of private companies is exemplied by the decision of the ICTR Trial Chamber in Musema, concerning the director of the Gisovu Tea Factory in Rwanda.376 Musema was accused of failing to take measures necessary to forbid his employees and the population of the Kibuye Prefecture from participating in the genocide. The tribunal distinguished between allegations relating to the command and control that Musema could exert over his employees in the Tea Factory as compared to that he could exercise over the population of Kibuye.377 The tribunal dismissed the idea that a prosperous businessman with inuential power in a given region could engage his international criminal responsibility simply for not having taken the measures necessary to prevent the whole population of that region to engage in genocidal acts.378 As such, the tribunal circumscribed the scope of the responsibility of business leaders. That responsibility does not extend to the acts of the whole population of the region, as it is difcult to contend that the population in general falls under their effective authority and control or that the business leader in question has the capacity to prevent or repress the commission of such crimes. Therefore, in principle, the staff of a PMSC acting in a certain geographical area and contributing to the economic life of that region may not be held liable (by virtue of that fact alone) for international crimes committed by the population of that place. The ICTR held, however, that the requisite level of authority and control existed with respect to the employees of the Tea Factory: Musema exercised de jure authority over employees of the Gisovu Tea Factory while they were on Tea Factory premises and while they were engaged in their professional duties as employees of the Tea Factory, even if those duties were performed outside factory premises.379 The Chamber pointed to two specic powers a civilian employer superior has to take measures to suppress war crimes: ring or threatening to re employees who commit war crimes, crimes against humanity or genocide, and preventing and punishing the use of company property in the commission of those crimes.380 The decision of the tribunal in this regard
375

376 377

Ibid. The document specically mentions that Superior responsibility is not engaged solely by virtue of a contract. Musema (TC Judgment 2000). 378 379 380 Ibid., para. 881. Ibid. Ibid., para. 880. Ibid.

622 responsibility for violations of international law

is very important to understand the conditions under which PMSC leaders may be liable as superiors. In our view, the responsibility of a superior of staff hired to use force must even be stricter than that of a superior of staff hired to produce tea, because the possibility to commit international crimes is much more linked to the execution of the task in the former than in the latter case. A PMSC director or any person within the company having the capacity to request the removal of an employee who is the perpetrator of crimes may be liable if he fails to do so. But removing or threatening to remove employees from their functions are just two of the many means with which the contract may endow a PMSC leader. Broadly speaking, all powers accruing to the hierarchical superior by virtue of the contract, and in conformity with the applicable domestic law, must be used to punish the perpetrator of the crime and to dissuade those who have not yet engaged in such behaviour. Secondly, the tribunal emphasized that the accused could also prevent or punish the use of the Tea Factory property for the commission of these crimes. Superiors in a PMSC must prevent and punish the use of company property, such as weapons, uniforms, or even the legal rights attached to their status as employees of the company, in the commission of crimes and they may be held liable for failing to prevent, repress and punish unlawful acts. Due to the powers accruing to him by virtue of the contract, the director of a PMSC must use his supervisory role to take all necessary and reasonable means to impede the commission of international crimes.381 It is important to note, however, that the tribunal is careful to attach the duty to prevent and to punish the acts of the employees to their professional activities. The tribunal emphasized that the authority of Musema over his employees was related to the execution of the contract, namely when they are in the Factory or carrying out their professional duties for the company.382 The terms of the contract are therefore important to determine whether the businessperson has the capacity to prevent or punish violations of IHL. Again, for PMSCs, given that some of them may use force in the execution of their contractual duties, or that they may be in proximity to protected persons (such as detainees), this requirement may be less of an impediment to make a
381

382

Arnold and Triffterer, Article 28, p. 825: The underlying idea [in holding Musema responsible] was that there was a contractual relationship between them and that the employer had a supervisory role to observe. Musema (TC Judgment 2000), para. 880.

establishing international criminal responsibility 623

case based on the superior responsibility of PMSC leaders than it could be for other business leaders. Two last remarks remain to be made: rst, although the authority of the commander is closely related to the contractual relationship, it goes without saying that when an employee commits unlawful acts in his free time, and that it comes to the knowledge of the hierarchical superior, the latter can still use his power under the contract to ensure the respect of IHL. As a civilian superior, however, he is likely not required to do so (unlike military commanders). Secondly, the contracting ofcers who oversee the execution of contracts involving PMSCs (in addition to competent authorities within the company) have the authority to supervise the implementation of the contract. Contracting ofcers may therefore use the contract with the company as a tool to require that individuals participating in international crimes be removed from theatre. In this regard, much of the contracting ofcers power will depend on the terms of the contract. When the contract gives him the power to prevent and/or punish violations of IHL by individual contractors, or if he possesses this power from a different source, and where he knows crimes may be, have been or are being committed (or wilfully ignores such information) the contracting ofcer is a civilian superior liable under international criminal law.

Prosecuting individuals in national legal systems

Different hurdles arise for different states (i.e. territorial, contracting and home) in their quest to prosecute PMSCs suspected of committing crimes. It is neither possible nor necessary to provide a comprehensive overview of comparative criminal law here.383 Instead, we propose to highlight some of the principal impediments to national prosecutions of PMSCs especially in terms of their legal and geographical connection with the PMSC (and/or individual) in question. For territorial states, immunity granted to contractors by the states that contracted them has been a key factor preventing prosecution.384

383

384

See, however, Payam Akhavan, Whither National Courts? The Rome Statutes Missing Half: Towards an Express and Enforceable Obligation for the National Repression of International Crimes (2010) 8 JICJ 124566. E.g. CPA Order no. 17, granting immunity to contractors in Iraq. Immunity was granted by the occupying power but it continued to apply in Iraq following the end of the occupation.

624 responsibility for violations of international law

This has been the case in highly publicized situations such as Coalition Provisional Authority (Iraq) (CPA) Order no. 17 providing contractors immunity in Iraq, but it is no less problematic in states such as Colombia.385 Dysfunctioning justice systems in conict or postconict states are another obvious factor in the (in)ability of territorial states to effectively prosecute PMSCs.386 For their part, contracting states may have difculty asserting criminal jurisdiction over PMSC contractors they employ extraterritorially even more so if both the victim and the perpetrator are non-nationals.387 With its Military Extraterritorial Jurisdiction Act (MEJA) the United States has expanded its legislation permitting extraterritorial jurisdiction over civilian contractors working for the Department of Defense (DoD) or contracted by other US federal agencies to the extent that their employment is related to the support of the DOD mission overseas.388 It remains to be seen how effective this law will be in sanctioning contractor behaviour in relation to the local population. Two prosecutions under MEJA for offences committed against Iraqi or Afghan civilians have occurred (including one related to the Nisoor Square shooting); others have addressed contractors downloading pornography or assaulting other contractors or soldiers.389 Furthermore, State Department contractors have challenged the application of MEJA to their activities; while this tactic has proved unsuccessful to date, in its current form the law remains open to interpretation as to what constitutes a mission supporting a DoD mission and may indeed leave a jurisdictional gap.390 The provision of immunity in exchange for compelled, on-the-spot reporting and/or testimony has also proven to be an impediment to prosecution of contractors working for the United States.391
385 386

387 388 390

391

See Cabrera and Perret, Colombia, pp. 41921 and 4229. That being said, Iraq prosecuted a PMSC for the murder of two fellow contractors: C. Davies, Briton Danny Fitzsimons Jailed in Iraq for Contractors Murders, The Guardian (London), 1 March 2011, p. 12 (main section). Elsea, Private Security Contractors in Iraq and Afghanistan, p. 22. 389 Ibid. Ibid., p. 24. Ibid., pp. 234, citing in particular US v. Slough, 677 F Supp 2d 112 (DDC 2009) (the Nisoor Square prosecution). A Civilian Extraterritorial Jurisdiction Act has been introduced in Congress to help bridge this gap, but that bill has languished in the House Subcommittee on Terrorism, Crime and Homeland Security. See CEJA of 2010, 111th Congress (200910) H.R. 4567 (introduced on 2 February 2010 by Representative David Price). US v. Slough, 677 F Supp 2d 112 (DDC 2009). Urbina J dismissed the indictment against the Blackwater contractors involved in the Nisoor Square massacre on the grounds that the case against them had been improperly built on immunized (compelled) testimony provided to US civil servants in Iraq shortly after the shooting. Nevertheless, in a subsequent hearing, Urbina J refused to dismiss the indictment with prejudice on the

establishing international criminal responsibility 625

Civilian contractors working for the UK Armed Forces are subject to the Armed Forces Act 2006 as civilians subject to Service discipline.392 This means that contractors that are UK nationals or third-country nationals in Iraq, for example, may be tried for any of the same offences applicable to the regular armed forces. Such personnel may be tried either in courts martial or in Service Civilian Courts, which are composed of one Advocate General.393 Local nationals hired as contractors may not, however, be brought under that jurisdiction.394 The Armed Forces Act, 2006 was specically designed to enable jurisdiction over PMSCs following an ofcial assesment (regarding contractors in the Iraq war) that existing jurisdiction was inadequate.395 Despite the harmonization of jurisdiction for all persons working with the UK armed forces that this Act ensures, serious gaps persist: the Act provides no jurisdiction over PMSCs under contract with other departments or ministries.396 For home states, the link between a non-national PMSC employee alleged to have committed a crime on foreign soil may be too tenuous to support jurisdiction for war crimes other than crimes of universal jurisdiction.397 Nonetheless, as noted above, the new South African regulation
grounds of prosecutorial misconduct, such that the prosecution may continue. See US v. Slough, 679 F Supp 2d 55 (DDC 2010). On Appeal, the court reversed the dismissal of the indictment and remanded the case; a petition to have the US Supreme Court hear this issue is pending as of March 2012. UK Armed Forces Act, 2006, Sch. 15 (entered into force October 2009). The schedule allows the Defence Council to designate civilians who will be subject to Service discipline, meaning the same laws applying to the regular armed forces. UK Ministry of Defence, Defence Standard 05129, Contractors on Deployed Operations (CONDO) Processes and Requirements, Issue 4, 12 March 2010, para. 6: it is also CONDO Policy to designate under the AFA 06 all UK and Third Country National CONDO Personnel as Civilians Subject to Service Discipline. See also UK Defence Council, Contractor Support to Operations (CSO) Policy; Part II Contractors on Deployed Operations (CONDO), JSP 567 (4th edn, 2008), ss. 41622. UK Armed Forces Act, ss. 50, 51, 279, 280. UK Ministry of Defence, Defence Standard 05129, Contractors on Deployed Operations (CONDO) Processes and Requirements, Issue 4, 12 March 2010, para. 6. UK Ministry of Defence, Operations in Iraq: Lessons for the Future (December 2003), p. 44, para. 8.25. See also Claire Taylor, The Armed Forces Bill: Bill 94 of Session 20052006, House of Commons Library, Research Paper 05/86 (7 December 2005), p. 10. Recall that it is the Department for International Development that has contracted private security companies in Afghanistan. The Department of Defence does not contract PSCs, but only logistics companies. Israeli law provides extensive extraterritoral prescriptive jurisdiction, applying to all offenses committed abroad by a person who was, at the time of commission or subsequently, an Israeli citizen or resident, and if they are punishable by more than three

392

393 394

395

396

397

626 responsibility for violations of international law

on PMSCs provides for extraterritorial jurisdiction for specied offences for companies operating from its territory.398 For both contracting and home states, the difculty of prosecuting may be magnied by practical problems of collecting evidence, obtaining witness testimony etc.

4 Conclusion
The concept of corporate criminal liability is not without foundation in international law and exists or is developing in domestic jurisdictions. Until international tribunals have jursidiction over corporations, the use of corporate structures and activities to deduce the individual criminal responsibility of directors remains relevant. Nuremberg jurisprudence can be considered as a precedent in this regard. Furthermore, private contractors participating in the commission of unlawful acts can, like any individual, be held responsible via the application of different forms of participation in crimes. Some of their activities could be interpreted as aiding and abetting, inducing or a contribution by other means. For instance, planning the commission of a crime is not specically mentioned in the Rome Statute, but can take different forms of liability of Article 25. Training or strategic consulting could, under certain circumstances, amount to planning the commission of a crime, inducing it, aiding and abetting the principal or helping him by any other means. PMSCs employees and directors would be wise to be aware of the various forms of participation in international crimes accepted in international law when accepting and executing a mandate. It is possible that not all directors or employees of PMSCs who commit crimes related to and during armed conicts will be considered has being important criminals liable to stand before international criminal tribunals. It is worth recalling, however, that the activities of MPRI in Croatia were discussed in the oral hearings of the former US Ambassador to Croatia (Mr Galbraith) in the Milosevic case before the ICTY. Granted, it was not a member of a PMSC who was prosecuted,

398

months imprisonment, in addition to legislation providing jurisdiction for breaches of the Geneva Conventions. See Ronen, Israel, p. 454. Due to the complex situation in which PMSCs are used in relation to Israel and the Occupied Palestinian Territories, Israel may be considered a home state, territorial state (in some cases) and contracting state. See above, section B 2.

establishing civil responsibility

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but the discussion of MPRI illustrates that the role of PMSCs is certainly on the radar of international criminal tribunals. Indeed, it was considered whether MPRI planned the unlawful operations undertaken by the Croatian army.399 Finally, the most likely avenue for prosecution of PMSCs, both as individuals and as corporations, remains domestic prosecution in national legal systems. The key legal hurdles may be the ability to exercise extraterritorial jurisdiction and immunities that have been granted.

D Establishing civil responsibility

PMSCs as corporations, and their employees and directors, may be the subjects of civil claims for violations of international law, particularly IHL. Civil (tort) claims have appeared as a potentially useful way to implement corporate responsibility for international law violations. The advantages of tort claims over criminal procedures are that the victims of a violation can directly set them in motion, the results of the process will benet them and the burden of proof for a private tort claim is lower than for a criminal conviction. In common law countries, in criminal cases, prosecutors must convince the judge or jury of the facts alleged beyond a reasonable doubt, whereas the standard of proof in a tort case is lower: the trier of fact must be convinced only on a balance of probabilities. Consequently, somewhat less evidence is required to satisfy the burden of proof in a tort case. However in some legal systems, such as in France, something analogous to the criminal law standard of the common law burden of proof (the intime conviction of the trier of fact) will apply to both proceedings where criminal and civil cases are joined. Tort claims may be based on allegations of international crimes committed abroad.400 At the international level, promoters of IHL advocate the adoption of international rules requiring states to offer a forum to victims of IHL violations for tort claims401 and to establish universal jurisdiction over such claims.402 In this eld, the United States is a
399

400

401

Prosecutor v. Milosevi (Trial Chamber, witness testimony) IT-0254 (26 June 2003), at 23169 and 23172, www.icty.org/x/cases/slobodan_milosevic/trans/en/030626IT.htm. They may also be based on other issues relevant to PMSC activity, such as workers rights. See e.g. Nordan v. Blackwater Security Consulting, LLC, 382 F Supp 2d 801 (EDNC 2005). Art. 19 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by UNGA Res. A/RES/40/34, 11 December 1985, says that states

628 responsibility for violations of international law

pioneer with its ATS.403 As the phenomenon of civil litigation against corporations and PMSCs in particular for violations of international law is most widespread and developed in the United States, this section will largely focus on US cases.404 As the US government is the main governmental client of PMSC services and the United States is the home state of major PMSCs, the fact that few examples can be found in other jurisdictions should not undermine the practicability, importance and potential of civil litigation as a means to hold PMSCs accountable and to regulate their activities.405 In the following discussion, we will outline the civil responsibility of PMSCs and their personnel as private agents and as state agents for violations of international law. Subsequently, the civil responsibility of PMSCs and their personnel as partners, contractors and consultants will be analysed. Finally, we will canvass the problems that may arise in establishing the proper forum where claims may be lodged.

402

403 404

405

should provide remedies to victims of substantial human rights violations, including reparation and/or restitution, and Art. 20 encourages the conclusion of international treaties on that matter. See also Principle 17 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law as suggested by Cherif Bassiouni in his nal report as a Special Rapporteur on the matter, The Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, UN ESCOR, 56th Sess., UN Doc. E/CN.4/2000/62, 18 January 2000. See Principle 4 of the Revised Set of Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law, UN ESCOR, 48th Sess., UN Doc. E/CN.4/Sub.2/1996/17 (24 May 1996) (Theo van Boven). However, in the Report of the Independent Expert on the Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms, UN ESCOR, 55th Sess., UN Doc. E/CN.4/1999/65, 8 February 1999, para. 55, Cherif Bassiouni questions whether universal jurisdiction exists for serious human rights violations and adds, this raises the question whether modalities for redress should be deemed part of universal jurisdiction or part of another normative regime. 28 USC 1350, which has existed since 1789. Nonetheless, civil litigation for international law violations is possible in various other countries, such as Argentina, Belgium, Canada, France, the Netherlands, South Africa, Ukraine and UK: see Ramasastry and Thompson, Commerce, Crime and Conict. See Beth Stephens, Translating Filartiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations (2002) 27 Yale J Intl L 157, esp. 1734 on the main impediments to such suits outside of the United States; see also L. F. H. Enneking, Crossing the Atlantic? The Political and Legal Feasibility of European Foreign Direct Liability Cases (2009) 40 George Washington Intl L Rev 90338. On the potential of civil litigation as a means of regulation, see Cockayne, Make or buy?, pp. 21316.

establishing civil responsibility

629

Before delving into the US jurisprudence, however, it is useful to review a few essential facts about the ATS.406 The ATS is an old statute dating from 1789 that gives subject-matter jurisdiction to US federal courts to hear claims of non-US nationals for a tort resulting from egregious violations of international law or for violation of a US treaty.407 The provision lay dormant for nearly two centuries until 1980, when the family of Joelito Filartiga, a young Paraguayan tortured to death in his country, revived it.408 Since the beginning of the 1990s, many civil claims have been led against corporations under the ATS.409 The evolution of the ATS jurisprudence has led to an interpretation of the statute as permitting claims against corporations that are accused of breaches of international law outside US territory. Recently, however, an appeals court has purported to rule against this long line of cases, holding that the ATS does not apply to corporations.410 The signicance of that decision remains to be seen, but it forces us to admit that this central issue cannot be described as settled law. In addition, it is important to recall that the ATS is a jurisdictional statute and, as such, does not provide for a cause of action.411 According to the majority of the Supreme Court, international law rules actionable under the ATS are those that are accepted by the civilized world and dened with a specicity comparable to the features of 18th century paradigms412 in other words, sufciently precise rules of customary international law.
406

407

408 409 410 411

412

See International Commission of Jurists, Corporate Complicity & Legal Accountability, vol. 3, pp. 54 ff. The ATS states, The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States, 28 USC 1350. The law of nations to which the ATS is referring must be interpreted by courts as it has evolved and exists today and not as it was in 1789, see Filartiga v. Pena-Irala, 630 F 2d 876 (CANY 1980), at 881. For an analysis of ATS historical background and foundations, see M. Koebele, Corporate Responsibility under the Alien Tort Statute: Enforcement of International Law through US Tort Law (Leiden: Martinus Nijhoff, 2009), pp. 3, 1828; and N. Beisinghoff, Corporations and Human Rights: An Analysis of ATCA Litigation against Corporations (Frankfurt: Peter Lang, 2008), pp. 11215. Filartiga v. Pena-Irala, 630 F 2d 876 (CANY 1980), at 881. See e.g. Beisinghoff, Corporations and Human Rights, pp. 106 ff. Kiobel v. Royal Dutch Petroleum Co., 621 F 3d 111 (2nd Cir 2010). Sosa v. Alvarez-Machain, 524 US 692, 124 S Ct 2739 (US 2004), at 2755. Federal courts are competent to recognize causes of action under the ATS: see Koebele, Corporate Responsibility under the Alien Tort Statute, p. 35. Sosa v. Alvarez-Machain (n. 411 above), at 27612, and 2765.

630 responsibility for violations of international law

Many violations of international law have been recognized as actionable under the ATS,413 including genocide,414 crimes against humanity,415 apartheid,416 war crimes,417 torture,418 extrajudicial killings,419 prolonged arbitrary detention,420 forced labour421 and nonconsensual medical experimentation on human beings.422 Private individuals can be held liable for piracy,423 war crimes,424 genocide,425 crimes against humanity,426 hijacking,427 slave trade and forced labour428 and some human rights violations (acts of murder, rape, torture, arbitrary detention of civilians) if committed in the course of hostilities during an armed conict and constituting war crimes.429 Some violations, such as torture, require state action and therefore will only apply to PMSCs if state action is proved.430 In one case an appeals court held that
413

414

415

416

417

418

419 420

421 422 423 424 427

428 429 430

For an exhaustive overview of international law norms accepted by the jurisprudence, see Koebele, Corporate Responsibility under the Alien Tort Statute, passim and esp. pp. 24575 for norms that can be violated by anyone, and Beisinghoff, Corporations and Human Rights, pp. 20415. See e.g. Kadic v. Karadzi, 70 F 3d 232 (2nd Cir 1995); Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F 3d 244 (2nd Cir 2009). See e.g. Kadic v. Karadzi (n. 414 above); Wiwa v. Royal Dutch Petroleum Co., 226 F 3d 88 (2nd Cir 2000); Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F 3d 244 (2nd Cir 2009); and Sarei v. Rio Tinto plc, 221 F Supp 2d 1116 (CD Cal 2002); Bowoto v. Chevron Corporation, 14 August 2007 (not reported in F Supp 2d) 2007 WL 2349336 (ND Cal) (Order re: Defendants motion for summary judgment on plaintiffs claims 1017). See In re South African Apartheid Litigation, 346 F Supp 2d 538 (SD NY 2004); Khulumani v. Barclay National Bank Ltd, 504 F 3d 254 (2nd Cir 2007); and In re South African Apartheid Litigation, 617 F Supp 2d 228 (SD NY 2009), at 271. According to the district judge in the latter case, international law recognizes apartheid as a crime, but only when committed by state actors. See e.g. Kadic v. Karadzi (n. 414 above); Estate of Rodriguez v. Drummond Co. Inc., 256 F Supp 2d 1250 (ND Ala 2003); Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F 3d 244 (2nd Cir 2009). See e.g. Filartiga v. Pena-Irala, 630 F 2d 876 (CA NY 1980); Doe I v. Unocal Corp., 395 F 3d 932 (9th Cir 2002); Wiwa v. Royal Dutch Petroleum Co., 226 F 3d 88 (2nd Cir 2000). See e.g. Bowoto v. Chevron Texaco Corporation, 312 F Supp 2d 1229 (ND Cal 2004). See Forti v. Suarez-Mason, 672 F Supp 1531 (ND Cal 1987); as opposed to short time illegal detention, see Sosa v. Alvarez-Machain (n. 411 above), at 27658. See e.g. Doe I v. Unocal Corp., 395 F 3d 932 (9th Cir 2002). Abdullahi v. Pzer, Inc., 562 F 3d 163 (2nd Cir 2009). Kadic v. Karadzi, 70 F 3d 232 (2nd Cir 1995). 425 426 Ibid. Ibid. Ibid. Burnett v. Al Baraka Investment and Development Corporation, 274 F Supp 2d 86 (DDC 2003); Kadic v. Karadzi, 70 F 3d 232 (2nd Cir 1995). Doe I v. Unocal Corp., 395 F 3d 932 (9th Cir 2002). Kadic v. Karadzi, 70 F 3d 232 (2nd Cir 1995), at 242. Al Quraishi v. Nakhla, 728 F Supp 2d 702 (D Md 2010).

establishing civil responsibility

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corporations cannot be held liable for torture on the grounds that the language in the relevant statute does not seem to allow for its application to legal persons.431

1 Establishing civil responsibility of PMSCs and their personnel

Both PMSCs (as corporations) and their personnel can be subject to civil litigation. ATS jurisprudence distinguishes between cases where individuals and corporations act as private agents (section 1.1 below) from those where they act as state agents (section 1.2 below). Indeed, as US courts resort to international law norms to determine whether a claim is actionable under the ATS and use international law criteria,432 only norms that can be violated by private agents in the international legal order can be brought against private agents before US courts. For norms that are binding only on states in international law, such as torture, state action will be required for the claim to be admissible.433 Nevertheless, courts have recognized that private agents complicit in international violations committed by state agents may also be held liable under the ATS even if the norm violated is only binding on states in the international legal order (section 1.3 below).

1.1 Liability of PMSCs and their personnel as private agents US federal courts have established that private individuals and corporations can violate some rules of international law as private agents without the need to link them to state action. This was rst afrmed in the case of Kadic v. Karadzi.434
1.1.1 Liability of individuals Fifteen years after the Filartiga decision, courts had to determine whether individuals could be sued for violations of customary international law under the ATS in Kadic v. Karadzi.435 Radovan Karadzi was the president of the self-proclaimed Bosnian-Serb
431

432 433

434

The statute in question is the Torture Victim Protection Act (TVPA) 1991, 28 USC 1350. See Bowoto v. Chevron, 621 F 3d 1116 (9th Cir 2010), at 1128. The court acknowledges, however, that a different US appeals court did apply the TVPA to corporations: Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F 3d 1242 (11th Cir 2005), at 12502. See Sosa v. Alvarez-Machain (n. 411 above), at 2766, n. 20. See e.g. Filartiga v. Pena-Irala, 630 F 2d 876 (CA NY 1980) and Kadic v. Karadzi, 70 F 3d 232 (2nd Cir 1995). 435 Kadic v. Karadzi, 70 F 3d 232 (2nd Cir 1995). Ibid.

632 responsibility for violations of international law

republic of Bosnia-Herzegovina, known as Republika Srpska. The plaintiffs alleged that Karadzi, in his capacity as president, exercised command responsibility over Bosnian-Serb military forces and, consequently, was responsible for injuries inicted upon the plaintiffs by those forces. In his defence, Karadzi argued that the plaintiffs had not alleged violations of international law because those norms are binding only on states and on individuals acting under colour of the law of the state. The Republika Srpska was not a recognized state, so Karadzi acted as a private individual. The court therefore had to determine whether Karadzi could be held liable for commission of acts of genocide, war crimes, and torture as a private actor and as the president of Republika Srpska. The Court of Appeal held (in accordance with the principles of international criminal law developed since the Second World War) that private individuals may be liable for violations of international law.436 It went further, stating that even crimes that, by denition, would require state action, such as torture and summary execution, do not require for ATS purposes state action when perpetrated in furtherance of other crimes for which state action is not required, such as genocide or war crimes.437 Karadzi could, therefore, be found liable for genocide, war crimes, and crimes against humanity in his private capacity.438 The court also stated that international law allows states to establish civil remedies for international offences of universal concern, such as war crimes, genocide or slave trading.439 As a consequence of this decision, individuals, including PMSC personnel, may be held liable under the ATS for violations of international law. The fact that state action is not always necessary for individual liability is signicant: it means that even when PMSC personnel are under contract with a private entity such as another corporation, they may nevertheless be held liable for some violations of international law.440
In the courts words: We do not agree that the law of nations, as understood in the modern era, connes its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals. Ibid., at 239. 438 Ibid., at 2434. Ibid., at 236 (emphasis added). Ibid., at 240. The judgment referred to section 404 of the Restatement (Third) of the Foreign Relations Law of the United States (1986). See Saleh v. Titan Corp., 580 F 3d 1 (CADC 2009) although the Appeals Court rejected the applicability of the ATS to Titan as a private actor on the facts alleged, it accepted (in theory) the applicability of the statute to private actors for war crimes claims (at n. 13).

436

437 439

440

establishing civil responsibility

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1.1.2 Liability of PMSCs as corporations In the following section, we will discuss how corporations such as PMSCs can be held liable for (i) torts they commit and (ii) torts committed by their subsidiaries (in certain circumstances).
1.1.2.i For acts committed by themselves The rst case recognizing that a corporation, qua private entity, could be held liable for torts committed in violation of customary international law was Doe v. Unocal.441 In that case, the court held that a corporation can be held liable under the ATS for violations of rules of international law for which individual responsibility (as opposed to state and state agent liability) is recognized by international law such as the prohibition of forced labour.442 In addition to those violations, there is a theory afrming that individuals and corporations can incur responsibility for violations of jus cogens under international law;443 however, in general, corporate actors are not liable for human rights violations under international law.444 A long line of cases reafrm the applicability of the ATS to corporations and help to illustrate how the statute can apply to private entities. A good example is Presbyterian Church of Sudan v. Talisman Energy, which dealt with the liability of a Canadian oil company operating in Sudan. Talisman was sued for aiding and abetting the Sudanese government in operations of ethnic cleansing directed against non-Muslim civilians in southern Sudan. Specically, it was accused of repairing and supplying military materiel to the Sudanese government in exchange for protection for its oil exploration and extraction activities. The plaintiffs contended that Talisman was aware of the ethnic cleansing campaign of the authorities at the time. The evidence tended to show that Talisman had regular meetings with Sudanese military intelligence and the
441

442 443

444

Doe I v. Unocal Corp., 395 F 3d 932 (9th Cir 2002). In that case, Unocal was acting in joint venture with the government of Myanmar; consequently, it will be analysed in the section relating to the responsibility of PMSCs as accomplices. Ibid., at 946. See C. Ryngaert, Litigating Abuses Committed by Private Military Companies (2008) 19 EJIL 1035, 1038. See also Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F Supp 2d 289 (SDNY 2003), at 3059; and Kadic v. Karadzi, 70 F 3d 232 (2nd Cir 1995), at 2412. See Report of the Special Representative of the UN Secretary-General, John Ruggie, to the UN Human Rights Council, on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, 9 February 2007, A/HRC/4/035, para. 44: It does not seem that the international human rights instruments currently impose direct legal responsibilities on corporations.

634 responsibility for violations of international law

Ministry of Energy and Mining, and hired its own military advisers to co-ordinate military strategy with the government.445 Talisman argued that corporations lack the capacity to violate international law and that, consequently, US courts have no jurisdiction over the subject of the dispute. After a review of pertinent US cases, Nuremberg Industrialist judgments and international practice, however, the District Court found sufcient justication supporting the proposition that a corporation may be liable under international law, calling Talismans position anachronistic.446 What is more, this decision was conrmed in 2005 after Sosa.447 The liability of corporations under the ATS was reasserted in the South African Apartheid litigation. Cases were brought by Apartheid victims against various corporations, including General Motors, IBM, Fujitsu, Barclays Bank and UBS, for their alleged collaboration with the South African government in the commission of human rights violations such as torture, arbitrary detention, cruel treatment, arbitrary denationalization and extrajudicial killings. The District Court dismissed the claims on the ground that aiding and abetting was not an available theory of liability under the ATS. However, the Appeals Court reversed the District Courts decision on this point and remanded the case back to the District Court.448 The District Court subsequently held that corporations are indisputably liable under the ATS,449 but only for limited violations of international law.450 The court held that apartheid does not give rise to corporate liability under international law but allowed claims based on other violations.451 Numerous claims have been brought against corporations under the ATS,452 including against PMSCs.453 The liability of corporations under
445

446 447

448 449 450 452

453

Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F Supp 2d 289 (SDNY 2003), at 300. Ibid., at 315. Presbyterian Church of Sudan v. Talisman Energy, Inc., 374 F Supp 2d 331 (SDNY 2005). In the nal decision on the matter, the Appeals Court assumed without deciding that the ATS applies to corporations since the claim failed on other matters. See Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F 3d 244 (2nd Cir 2009), at 261, n. 12. Khulumani v. Barclay National Bank Ltd, 504 F 3d 254 (2nd Cir 2007). In re South African Apartheid Litigation, 617 F Supp 2d 228 (SDNY 2009), at 2545. 451 Ibid., at 2502. Ibid., at 2512. See e.g. ibid.; Wiwa v. Shell Petroleum Development Co. of Nigeria Ltd, 335 Fed Appx 81 (2nd Cir 2009); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F Supp 2d 289 (SDNY 2003); Doe I v. Unocal Corp., 395 F 3d 932 (9th Cir 2002). For an analysis of signicant cases against corporations, see Beisinghoff, Corporations and Human Rights. See e.g. In re XE Services Alien Tort Litigation, 665 F Supp 2d 569 (EDVa 2009); Al Shimari v. CACI Premier Technology, Inc., 657 F Supp 2d 700 (EDVa 2009);

establishing civil responsibility

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the ATS seems well-established and there seems to be a sense in US federal courts that limiting civil liability to individuals while exonerating the corporations directing the individuals action through its complex operations and changing personnel makes little sense in todays world.454 However, a recent decision by an appeals court (the Second Circuit Court of New York) has left the issue in limbo. In Kiobel v. Shell, a divided court held that the ATS does not apply to corporations on the grounds that corporations are not liable under international law for violations of customary law.455 In arriving at this contrary conclusion, the majority stated that in Talisman (only a year earlier) the same court had not denitively settled the matter since it had only assumed without deciding, that corporations may be held liable for the violations of customary international law that plaintiffs allege.456 The majority held that they must be guided by international law to determine not only the causes of action under the ATS, but also to determine who/what may be held liable for violations.457 As such, the majority again reviewed international tribunals (and Nuremberg Industrialist jurisprudence),458 international treaties459 and the works of publicists460 to arrive at the conclusion that corporations may not be liable for violations of customary law under the ATS and that therefore US courts have no jurisdiction in such matters. In a strongly argued and convincing dissent, Judge Leval points to the fact that US appeals courts have never previously refused jurisdiction of the ATS over corporations on this ground and, to the contrary, have repeatedly treated the issue of whether corporations may be held liable under the AT[S] as indistinguishable from the question of whether private individuals may be.461 The new schism in the jurisprudence likely means that the US Supreme Court will have to decide the question
Arias v. Dyncorp, 517 F Supp 2d 221 (DDC 2007); Ibrahim v. Titan Corp., 391 F Supp 2d 10 (DDC 2005). In re Agent Orange Product Liability Litigation, 373 F Supp 2d 7 (EDNY 2005), at 58. Kiobel v. Royal Dutch Petroleum Co., 621 F 3d 111 (2nd Cir 2010), at 120 ff. Ibid., at 117, n. 10. See also 130, n. 33. Ibid., at 1212, 12731 and n. 33. For the full discussion, see 12749. 459 Ibid., at 1327. Ibid., at 13742. Ibid., at 1425. We note, however, that two of the publicists referred to in support of its position are not entirely disinterested: James Crawford and Christopher Greenwood appeared as counsel for Talisman in the ATS suit against it. Ibid. (Leval, J, dissenting opinion), at 161 (n. 13). The text Leval J quoted comes from Katzmann Js concurring opinion in Khulumani v. Barclay National Bank Ltd, 504 F 3d 254 (2nd Cir 2007), at 282.

454 455 456 457 458 460

461

636 responsibility for violations of international law

in the near future. Nevertheless, in our view, there is a long line of strong cases to support the position that, although it refers to and in a way incorporates international law, the ATS remains a private US federal tort law binding no less on corporations than on individuals.462 This has been the position of courts deciding cases against PMSCs as corporations (albeit decided prior to Kiobel v. Shell). Recently, Xe, formerly known as Blackwater, was sued under the ATS by Iraqis alleging war crimes and summary executions. The Court of the Eastern District of Virginia restated that war crimes claims under ATS were cognizable against non-state actors, and that [n]othing in the ATS or Sosa may plausibly be read to distinguish between private individuals and corporations.463 In Al Quraishi v. Nakhla, a Maryland District Court dismissed a PMSCs motion to dismiss a case brought against it by seventy-two Iraqi individuals who were detained at military prisons in Iraq and subject to torture and cruel, inhuman and degrading treatment, holding that the PMSC L-3 is subject to liability under the ATS as a corporation.464 Finally, although the vast majority of civil claims against corporations for international law violations have been led in the United States, the legal systems of other countries also allow for this kind of litigation.465 For instance, in the Netherlands, Nigerians from the village of Oruma and the non-government organization (NGO) Milieudefensie (established in Amsterdam) brought a claim in 2008 against Shell Nigeria and Royal Dutch Shell for its liability in environmental damages resulting from the leakage of a Shell Nigeria oil pipeline in June 2005.466 The motion contesting jurisdiction was heard in December 2009 and the Court held that it indeed has jurisdiction to hear the merits of the case.467 This is the rst of three cases brought before The Hague Court against corporate defendant Shell. The others were led in May 2009.468
462 463 464

465 466

467

468

See Koebele, Corporate Responsibility under the Alien Tort Statute, p. 209. In re XE Services Alien Tort Litigation, 665 F Supp 2d 569 (EDVa 2009), at para. 6. Al Quraishi v. Nakhla, 728 F Supp 2d 702 (D Md 2010), at 3941. But note that this case was decided several months before the decision in Kiobel v. Royal Dutch Petroleum Co., 621 F 3d 111 (2nd Cir 2010). In other cases against PMSCs, this has not always been argued. See e.g. Al Shimari v. CACI Premier Technology, Inc., 657 F Supp 2d 700 (EDVa 2009). See n. 397 above. See plaintiffs subpoena, www.milieudefensie.nl/globalisering/publicaties/infobladen/ Scan%20dagvaarding%20Oruma%20Engels.pdf. See Court of The Hague, Case no./docket no.: 330891/HA ZA 09579, Judgment in motion contesting jurisdiction of 30 December 2009. See www.milieudefensie.nl/english/shell/the-people-of-nigeria-versus-shell.

establishing civil responsibility

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In 2009, the Superior Court of Quebec, applying civil law, held that a war crime is an indictable offence, the violation of which constitutes a civil fault pursuant to469 the relevant Article of the Civil Code of Quebec.470 In that case, the Palestinian village council of Bilin sued two Quebec corporations, Green Park International and Green Mount International, and their director, Annette Laroche, alleging that they built settlements in the West Bank in violation of Article 49(6) GC IV.471 Although the court accepted that a war crime was a civil fault both for individuals and for corporations, the case was dismissed on the ground of forum non conveniens.472
1.1.2.ii Liability of PMSCs for their subsidiaries and business partners Nowadays, corporations such as PMSCs operate through complex corporate structures involving many subsidiaries incorporated in different countries. As a general principle, including of US corporate law, parent companies and subsidiaries are distinct legal entities that cannot be held responsible for the actions of the other.473 Nevertheless, in some cases a court may decide to set aside this principle and to hold a parent company responsible for the misconduct of its subsidiary.474 Some federal courts have applied corporate law principles for piercing the corporate veil in dealing with ATS cases involving corporations and their subsidiaries.475 For instance, in Bowoto v.
469

470

Bilin (Village Council) and ors v. Green Park International inc. and ors, Superior Court of Quebec, no. 50017044030081, 18 September 2009, at 37. Art. 1457: (1) Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature. (2) He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.

471

472 473

474

475

Civil Code of Quebec, L.R.Q. c. C-1991. The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. Art. 49(6) GC IV. See below, section 2.2. Bowoto v. Chevron Corporation, 312 F Supp 2d 1229 (ND Cal 2004), at 1234 quoting United States v. Bestfoods, 524 US 51, at 68 (1998). See International Commission of Jurists, Corporate Complicity & Legal Accountability, vol. 3, pp. 459. See Koebele, Corporate Responsibility under the Alien Tort Statute, pp. 279303.

638 responsibility for violations of international law

Chevron,476 the court held that Chevron Texaco could be held liable under ATS for alleged violations of international law committed by its Nigerian subsidiary.477 In that case, the court stated that, although the defendants could not be held directly liable for the alleged violations, they could be held liable for their acts of their subsidiary under agency theory due to: (i) the degree and content of communications between Nigerian subsidiary and Chevron Texaco and Chevron Texaco Overseas Petroleum, (ii) the latters participation in the setting of the security policy in Nigeria, (iii) an overlap of ofcers and directors between the defendants, (iv) a reliance of the Nigerian subsidiary on the US-based defendants for revenue and (v) the agency relationship alleged by the plaintiffs was directly related to the plaintiffs' causes of action because they alleged that the defendants were signicantly involved in security matters and beneted directly from the oil production of Chevron Nigeria, production made possible by the militarys wrongful use of force to quell local opposition.478 In the litigation against corporations alleged to have aided and abetted the government of South Africa in the furtherance of the Apartheid regime, the District Court of New York held that federal courts may rely on common law principles of agency to pierce the corporate veil and hold a corporation liable for the acts of its subsidiary.479 The court stated that a parent corporation and its subsidiary lose their distinct corporate

476 477

478

479

Bowoto v. Chevron Corporation. In that case, ve Nigerians brought a claim against Chevron Texaco and Chevron Texaco Overseas Petroleum for human rights violations in Nigeria committed in concert with Chevron Nigeria Limited. Chevron Texaco Overseas Petroleum owned 90 per cent of the latter and the 10 per cent remaining was owned by another company, itself 100 per cent owned by Chevron Texaco. Chevron Nigeria Ltd was operating a joint venture with the Nigerian National Petroleum Company, the Nigerian state oil company. The plaintiffs alleged, inter alia, that in 1998 military and policemen recruited by Chevron opened re on people protesting against Chevrons activities. According to the plaintiffs allegations, military and policemen were transported by Chevrons helicopters. The claim also contended that in 1999, military and policemen opened re on civilians while in a helicopter piloted by Chevrons pilot. These holdings were not addressed in the appeal decision and therefore remain good law (in so far as they are not affected by the holding in Kiobel v. Royal Dutch Petroleum Co., 621 F 3d 111 (2nd Cir 2010) regarding the applicability of the ATS to corporations). See Bowoto v. Chevron, 621 F 3d 1116 (9th Cir 2010). In re South African Apartheid Litigation, 617 F Supp 2d 228 (SDNY 2009), at 2701. The court noted that vicarious liability is an established principle under international law but relied on common law since, in its view, international law does not provide for precise standards in a civil context.

establishing civil responsibility

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identities when their conduct demonstrates a virtual abandonment of separateness.480 Factors the court identied as relevant to determining whether the corporate veil should be pierced are:
1) disregard of corporate formalities; 2) inadequate capitalization; 3) intermingling funds; 4) overlap in ownership, ofcers, directors, and personnel; 5) common ofce space, address and telephone numbers of corporate entities; 6) the degree of discretion shown by the allegedly dominated corporation; 7) whether the dealings between the entities are at arms length; 8) whether the corporations are treated as independent prot centers; 9) payment or guarantee of the corporations debts by the dominating entity, and 10) intermingling of property between the entities.481

The court allowed some of the claims against corporations for acts of their subsidiaries to proceed. It is thus possible to pierce the corporate veil and to hold a parent company liable for the acts of its foreign subsidiary.482 This is extremely important given the complex web of companies in the PMSC industry.483

1.2 Liability of PMSCs and their personnel as state agents As the vast majority of international law norms are binding only on states and not on individuals (with the important exception of IHL norms discussed above), US federal courts require that either the individuals or the corporations were acting as state agents when committing the violations or that liability for a crime committed by state agents can be imputed to them according to different modes of liability such as aiding and abetting, joint action or the joint venture theories. Here we will consider PMSCs as state agents; the alternative modes of liability will be looked at in section 1.3. In Kadic v. Karadzi, the Second Circuit Court held that some international law norms, such as human rights and the prohibition of torture, may only be applied to states.484 This was recently reasserted by a District Court in a case against the PMSC Titan Corporation.485 For a private
480 482 481 Ibid., at 271. Ibid., at 2712. Liability for acts of the subsidiary was also accepted in principle in Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F 3d 244 (2nd Cir 2009), at 261. Indeed, as the factors here ow from corporate law principles and concerns, it may be much easier to assert the responsibility of corporate leaders (especially individuals) on a civil law basis rather than on command or superior responsibility under international criminal law. Kadic v. Karadzi, 70 F 3d 232 (2nd Cir 1995). Ibrahim v. Titan Corp., 391 F Supp 2d 10 (DDC 2005), at 14.

483

484 485

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agent to be held responsible for a violation of an international law norm only binding on states, it must be demonstrated that that agent acted in fact under the colour of law. The US colour-of-law doctrine comes from jurisprudence under a domestic statute protecting civil rights from state or ofcial violation.486 Thus, US federal courts have developed different approaches, such as joint action, symbiotic relation, nexus approach or public functions, to decide whether a civil right was infringed by a state action. Many courts have relied on this jurisprudence when ruling on the admissibility of ATS claims against private agents alleging violations of international law norms that only bind states.487 Since the Supreme Court decision in Sosa, however, courts have tended to question the relevance of the colour-of-law doctrine for ATS cases. In a highly controversial footnote, the court stated that a related consideration [to whether a norm of international law is sufciently precise to support a cause of action] is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or an individual.488 Consequently, the District Court in Bowoto v. Chevron rejected the application of colour of law theory to the case, stating:
Sosa requires that an international law norm be denite and accepted before a court may recognize a cause of action under the ATS. Because an integral feature of international law is that it is only binding on specic defendants, allowing a private party to be held liable based upon notions of color of law developed in this country would blur the applicability of the obligations that international law imposes. Expanding the reach of the ATS in this way would be inconsistent with the Supreme Courts repeated calls for judicial restraint.489
486

487

488 489

42 USC 1983. See Koebele, Corporate Responsibility under the Alien Tort Statute, pp. 21438 and Jessica Priselac, The Requirement of State Action in Alien Tort Statute Claims: Does Sosa Matter? (2007) Emory Intl L Rev 789, 81722. Koebele, Corporate Responsibility under the Alien Tort Statute, pp. 21144. See e.g. Wiwa v. Royal Dutch Petroleum, 2002 WL 319887 (SDNY), at 2. The plaintiffs alleged that in 1993 Royal Dutch/Shell met with Nigerian ofcials in order to make plans for an anti-Ogoni opposition campaign. In furthering these plans, the companies paid Nigerian military and police agents to put down local protests against their projects, bought arms for police agents, co-ordinated with military and police intelligence regarding local leaders campaigns, participated in the planning of terror raids against the Ogoni people, corrupted witnesses and provided helicopters and boats to the military in order to facilitate attacks against Ogoni villages. Sosa v. Alvarez-Machain, 524 US 692, 124 S Ct 2739 (US 2004), at 2766, n. 20. Bowoto v. Chevron Corporation, 2006 US Dist LEXIS 63209 (ND Cal 21 August 2006), at 256 (reference omitted).

establishing civil responsibility

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Similarly, in Doe v. Exxon Mobil, the District Court of Columbia stated, [g]rafting color of law analysis onto international law claims would be an end-run around the accepted principle that most violations of international law can be committed only by states. Recognizing acts under color of law would dramatically expand the extraterritorial reach of the statute.490 On the other hand, in some other post-Sosa ATS decisions, the colour-of-law standard was applied to determine whether a private action could be imputed to a state.491 In Al Quraishi v. Nakhla (Iraqi detainees suing the PMSC L-3), the District Court held that L-3 (and the individual defendant named) had to be acting under colour of law in order to be liable for torture.492 The Supreme Courts (discreet) reference to which standard to apply in determining whether a private agent can be held liable under the ATS for a violation of international law requiring state action did not provide sufcient guidance for lower courts. Further decisions will probably be needed before an established doctrine and harmonized case law emerge on the issue.493 Some authors have argued that, as colour of law is a domestic law doctrine, it should not be used for determining whether a violation of international law was committed under the ATS and that courts should rely only on international law to do so.494 That approach is not a panacea: applying purely international law to all aspects of ATS claims led the Appeals Court in Kiobel to determine that the ATS itself does not apply to corporations at all on the grounds that (in its view) there is no general principle of corporate liability under international law.495 These cases indicate that PMSCs working for a state, having close links with governmental agents or perhaps even simply controlled by a state

490 491

492

493 494

495

Doe v. Exxon Mobil Corp., 393 F Supp 2d 20 (DDC 2005), at 26. See e.g. Mujica v. Occidental Petroleum Corporation, 381 F Supp 2d 1164 (CD Cal 2005), at 11745 and Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F 3d 1242 (11th Cir 2005), at 1264. Al Quraishi v. Nakhla, 728 F Supp 2d 702 (D Md 2010), at 357. The court applied both the public function test and the joint action test to determine that a case had been made out. On this issue see Priselac, Requirement of State Action. See Koebele, Corporate Responsibility under the Alien Tort Statute, pp. 23844, and Priselac, Requirement of State Action, pp. 81722. These authors suggest resorting to the rules of attribution of state responsibility to determine whether an individual or a corporation can be considered as a state agent. Kiobel v. Royal Dutch Petroleum Co., 621 F 3d 111 (2nd Cir 2010), at 12730.

642 responsibility for violations of international law

may be held responsible for violations of a broader range of international norms. Indeed, Al Quraishi may suggest that the more PMSCs exercise what are considered inherently governmental functions under US law, the more they may run this risk.496 On the other hand, where plaintiffs argue that states were not involved in the treatment complained of, courts have dismissed parts of claims against PMSCs, citing a need for state action.497 Finally, we note that state action was also a central issue in a civil case brought against the French national rail company (SNCF) in French courts in 2001 regarding mistreatment of French Jews during the Second World War largely as an issue of which tribunal would have jurisdiction over the matter. 498 In that case, two French Jews were arrested by the Gestapo and later transferred from Toulouse to Drancy (an internment camp) in an SNCF train and bus. The plaintiffs alleged that France and the SNCF were accomplices in crimes against humanity.499 The SNCF was a private company at the time, so the plaintiffs had to demonstrate that it was acting as a state agent in order for the administrative court to have jurisdiction over their claim. In the rst instance, the tribunal was satised as to state action due to the fact that the French state held the majority of the SNCF capital, that the SNCF was acting for France when it transported Jews to the French detention camp, that the transportation of Jews was billed to the Ministry of Interior which had requested it, that the transportation implied compelling people against their will and that, therefore, the plaintiffs could not be considered simply as users of the SNCFs services. Consequently, the tribunal concluded that the SNCF in transporting Jews to a concentration camp was carrying out an inherently public function.500 In 2006, France and the SNCF were ordered to pay compensation to the plaintiffs.501 On appeal, however, this holding was reversed on the ground that the SNCF was not carrying out an inherently governmental function and, consequently, as

496

497 498

499

See Al Quraishi v. Nakhla, 728 F Supp 2d 702 (D Md 2010), at 347 and Ibrahim v. Titan Corp., 556 F Supp 2d 1 (DDC 2007), at 56. In re XE Services Alien Tort Litigation, 665 F Supp 2d 569 (ED Va 2009), at 5934. 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, http:// lipietz.net/IMG/pdf/TaToulouseJugementLipietz.pdf. On this case, see Vivian Grosswald Curran, Globalization, Legal Transnationalization and Crimes against Humanity: The Lipietz Case (2008) 56 American J Comparative L 363. 500 501 M. A et consorts Lipietz. Ibid., at 56. Ibid., at 89.

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it could not be regarded as a state agent (and, as such, the administrative tribunal did not have jurisdiction).502

Establishing the civil responsibility of PMSCs and their personnel as accomplices of international law violations PMSCs and their personnel can also be held responsible for violations of international law as accomplices under the ATS. As the Sosa decision did not endorse any specic standard of liability,503 no consensus exists yet amongst federal courts as to which vicarious liability standards should apply: those of federal common law, of international (criminal) law or both.504 In the case of Doe v. Unocal,505 the court opted for the application of international criminal law principles of complicity. In that case, the plaintiffs, who were Burmese farmers, alleged that Unocal, an oil company, was liable for human rights violations carried out by the Burmese military. Indeed, as previously mentioned, Unocal was involved in a joint venture for the construction of a gas pipeline with Total (a French oil company) and a Burmese oil company controlled by the military junta governing Burma. The agreement placed the responsibility for the security of the pipeline with the Burmese oil company, which hired the Burmese army to provide security along the pipline.506 The Ninth Circuit Court of Appeal stated that Unocal could be held liable under the ATS for different reasons. First, it could be held liable, on its own and without any state action, for allegations of forced labour, because it is a modern form of slavery: a crime for which international law attributes individual liability. Secondly, Unocal could be held liable for aiding and abetting the
502

1.3

503 504

505

506

Socit nationale des chemins de fer v. MM. Georges Lipietz et S., Cour administrative dAppel de Bordeaux, no. 06BX01570, 27 March 2007. Afrmed by the Conseil dtat in December 2007: MM. Georges Lipietz et S. v. Socit nationale des chemins de fer. See Beisinghoff, Corporations and Human Rights, p. 195. See Teddy Nemeroff, Untying the Khulumani Knot: Corporate Aiding and Abetting Liability under the Alien Tort Claims Act After Sosa (2008) 40 Columbia Human Rights L Rev 23186. Doe I v. Unocal Corp., 395 F 3d 932 (9th Cir 2002). While the case was actually subsequently reheard by the court en banc, it nonetheless provides for a good illustration of the dilemma caused by the determination of standards of complicity. For a more detailed account of the facts, see ibid., part I Factual and Procedural Background, A. Unocals Investment in a Natural Gas Project in Myanmar, pp. 937 ff.

644 responsibility for violations of international law

Burmese military in subjecting plaintiffs to forced labour, murder and rape according to international criminal law standards.507 Nonetheless, as forced labour was not directly committed by Unocal, Unocal could not be held directly liable, but only considered as an accomplice to those acts of forced labour carried out by the army. The majority opinion relied on the international criminal test for complicity to reach its conclusion.508 Judge Reinhardt disagreed with the international criminal law standards followed by the majority, favouring, instead, a federal tort law approach of the notion of complicity:
Where I differ from my colleagues is principally with respect to the standard of third-party liability under which Unocal may be held legally responsible for the human rights violations alleged. I do not agree that the question whether Unocal may be held liable in tort for the Myanmar militarys alleged human rights violations should be resolved, as the majority holds, by applying a recently-promulgated international criminal law aiding-and-abetting standard that permits imposition of liability for the lending of moral support. In fact, I do not agree that the question of Unocals tort liability should be decided by applying any international test at all. Rather, in my view, the ancillary legal question of Unocals third-party tort liability should be resolved by applying general federal common law tort principles, such as agency, joint venture, or reckless disregard.509

Judge Reinhardt then turned to an explanation of each federal common law tort principle. In his opinion, although the facts were sometimes

507 508

509

Doe I v. Unocal Corp., 395 F 3d 932 (9th Cir 2002), at 9545. It relied on this test as developed by the Nuremberg and the ad hoc tribunals. Ibid., at paras. 4 and 7. Among various arguments supporting this choice, the Appeals Court underlined that: the standards for aiding and abetting in international criminal law is similar to the standard for aiding and abetting in domestic tort law, making the distinction between criminal and tort law less crucial in this context. Accordingly, District Courts are increasingly turning to the decisions by international criminal tribunals for instructions regarding standards of international human rights law under our civil ATCA. Ibid., para. 7. It found that one could consider the actus reus requirement of aiding and abetting met in the case of Unocal, i.e., practical assistance or encouragement which has substantial effect on the perpetration of the crime of, in the present case, forced labor (ibid., para. 9). Further it contended that the mens rea requirement was also fullled, namely, actual or constructive (i.e., reasonable) knowledge that the accomplices actions will assist the perpetrator in the commission of the crime (ibid., para. 13). Ibid., Opinion of Judge Reinhardt, Reversed in part, afrmed in part and remanded, at 963 ff.

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disputed, Unocal could have been found to be an accomplice under each of the three theories, namely, joint venture,510 agency liability511 and reckless disregard.512 In the face of the powerful arguments raised both by the majority and Judge Reinhardt in supporting respectively the applicability of international law standards and federal common law principles, no clear-cut solution seems to emerge. Acknowledging this unanswered problematic, Wuerth notes that:
The availability of vicarious liability claims (such as aiding and abetting and conspiracy) under the ATS [i.e. ATCA] is also unclear. Courts have disagreed on the source of law for resolving vicarious liability claims international law or federal common law. Moreover, the standards for such claims under either source of law are contested.513

510

511

512

513

Under the principle of joint venture, if a member of the joint venture commits a tort, all the co-venturers will be liable for the same act. Joint liability is thus determined on the basis on three constitutive elements: (1) parties intended to form a joint venture; (2) parties share a common interest in the subject matter of the venture; (3) the parties share the prots and losses on the venture; and (4) the parties have a joint control or the joint right of control over the venture (ibid., at 970, n. 11). Despite the disputed facts, he concludes that Unocal freely elected to participate in a prot-making venture in conjunction with an oppressive military regime a regime that had a lengthy record of instituting forced labor, including forced child labor, and could therefore have been tried by virtue of the principle of joint venture liability (ibid., at 971). Under agency liability, a company may be held liable for the acts of its agents E.g. the plaintiffs contended that Unocal may be held liable for the acts of the Myanmar military because the military acted as the companys agent (ibid., at 972). The agency relationship can be determined based on an express or implied relationship or such authority can be inferred from the factual circumstances (ibid., at 972). He further contended that such a relationship existed between Unocal and the Myanmar military, as the latter was under the authority of the former and working in close collaboration (ibid., at 9734). Thus, as Clapham argues, there is no need to show a contractual relationship in order to determine liability, but rather one of authority [w]here a company hires agents, or is in a position to inuence the actual operations which are known to lead to human rights violations. Andrew Clapham, Human Rights Obligations of Non-state Actors (Oxford University Press, 2006), p. 260. The theory of reckless disregard is itself divided into two subcategories: objective recklessness (i.e. a person acts or fails to act in the face of an unjustiably high risk of harm that is either known or so obvious that it should be known (Doe I v. Unocal Corp., 395 F 3d 932 (9th Cir 2002), at 14264)) and subjective recklessness (i.e. the person knows of a substantial risk but wilfully disregards it) (ibid., at 14265). Referring to Unocal, Khulumani v. Barclay National Bank Ltd, 504 F 3d 254 (2nd Cir 2007) and American Isuzu Motors, Inc. v. Ntsebeza, 553 US 1028 (2008). I. Wuerth, Wiwa v. Shell: The $15.5 Million Settlement (2009) 12(14) ASIL Insights (see n. 22 regarding these cases), www.asil.org/les/insight090909pdf.pdf.

646 responsibility for violations of international law

In the case against Talisman, the company argued that aiding and abetting and conspiracy were not theories applicable to civil liability actionable under the ATS. The court rejected that argument, reiterating that the ATS provided a domestic cause of action in tort for violations of international law. Consequently, the court must look to international law to determine elements of a cause of action. Moreover, aiding and abetting and other forms of complicity are well-established and developed concepts of liability in the international legal system. The court referred to the Statute of the IMT514 and to the example of suppliers of Zyklon B, who indisputably provided material support for mass extermination in concentration camps, and who were convicted by the British military court for violations of the laws and usages of war.515 It also referred to the Statutes of the ICTY, ICTR and ICC as supporting the recognition of concepts of aiding and abetting by international law.516 This position was recently reafrmed by the Second Circuit Court of Appeals, which stated, [w]e agree that Sosa and our precedents send us to international law to nd the standard for accessorial liability.517 The Court of Appeals also stated that the requisite mens rea standard for aiding and abetting was purpose rather that knowledge according to international consensus.518 In Bowoto v. Chevron, the District Court recognized that [s]ince the early days of this country, courts have recognized that private individuals may be held liable for aiding and abetting violations of international law.519 As previously mentioned, in the Apartheid litigation, the Circuit Court stated that the plaintiffs could plead a theory of aiding and abetting liability under the ATS.520 In drawing the standards for aiding and abetting, the District Court relied on international
514

515

516

517

518 519

520

Art. 6 of the statute states, leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. Charter of the International Military Tribunal in Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis. See UK v. Tesch, 1 L Rep Tr War Crim 93 (1947), quoted in Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F Supp 2d 289 (SDNY 2003), at 322. Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F Supp 2d 289 (SDNY 2003). This ruling was reafrmed in 2009 by the Court of Appeals of the Second Circuit (NY). See Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F 3d 244 (2nd Cir 2009). Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F 3d 244 (2nd Cir 2009), at 259. Ibid., at 259. Bowoto v. Chevron Corporation, 2006 US Dist LEXIS 63209 (ND Cal 21 August 2006), at 13 (references omitted). Khulumani v. Barclay National Bank Ltd, 504 F 3d 254 (2nd Cir 2007), at 260.

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criminal law principles and jurisprudence.521 Consequently, the court held that some claims against automotive companies for aiding and abetting apartheid, torture, extrajudicial killing and inhuman and degrading treatments committed by South African agents could proceed. With regard to IBM, which provided the government with computers, software, training and technical support that were used to register individuals, deprive them of their citizenship and segregate them and some of which were specically designed to produce identity documents and carry out denationalization the court also allowed some of the claims to proceed.522 Interestingly with regard to PMSC activities, the court also allowed claims against the Rheinmentall Group to proceed. According to the plaintiffs, the Rheinmentall Group exported signicant quantities of armaments and related equipment and expertise to South Africa knowing that this war material would be used to commit extrajudicial killing.523 However, the court dismissed claims of aiding and abetting torture, prolonged unlawful detention and cruel and inhuman treatments based on allegations that the Rheinmentall Group sold armaments to the South African Defense Forces because they did not appear sufciently linked to the alleged crimes.524 In October 2009, the Court of Appeals in Talisman held that the mens rea required for aiding and abetting liability under ATS was purpose rather than only knowledge.525 Finally, we note that, in addition to aiding and abetting, the principle of superior responsibility has also been recognized as applicable to ATS cases by federal courts.526 However, the District Court in the Apartheid litigation cases held that conspiracy was not universally accepted by the community of nations and therefore it could not recognize it as a distinct tort under ATS.527

521 522 525

526

527

In re South African Apartheid Litigation, 617 F Supp 2d 228 (SDNY 2009), at 25763. 523 524 Ibid., at 265. Ibid., at 26970. Ibid., at 270. Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F 3d 244 (2nd Cir 2009), at 259. See Kadic v. Karadzi, 70 F 3d 232 (2nd Cir 1995), at 242; Hilao v. Estate of Ferdinand Marcos, 103 F 3d 767 (9th Cir 1996), at 7768; Cabello Barrueto v. Fernandez Larios 205 F Supp 2d 1325 (SD Fla 2002), afrmed Cabello v. Fernandez-Larios, 402 F 3d 1148 (11th Cir 2005), at 13323. In re South African Apartheid Litigation, 617 F Supp 2d 228 (SDNY 2009), at 263. The US Supreme Court in Hamdan v. Rumsfeld held that the law of war provides liability for conspiracy only with regard to genocide and common plan to wage aggressive war: see Hamdan v. Rumsfeld, 548 US 557 (2006), at 61012.

648 responsibility for violations of international law

Filing a civil claim against a corporation and/or its personnel for a violation of international law committed abroad is not an easy task. In particular, many problems can arise with respect to jurisdiction.

Problems of jurisdiction

Civil litigation involving violations of international law committed abroad is likely to raise problems in establishing the proper jurisdiction.528 The main difculties, which have been labelled by critics as evasion strategies by domestic courts,529 are (i) lack of personal jurisdiction, (ii) forum non conveniens, (iii) non-justiciability of some issues and (iv) immunities. Nevertheless, contracting states may establish jurisdiction over the PMSCs in their own courts through contractual clauses choice of law and choice of forum clauses are indeed common to contracts with international elements. For example, US regulations concerning DoD contracts require that contracts for overseas services contain a choice of law clause requiring the application of United States law and granting exclusive jurisdiction for the resolution of disputes to the U.S. Armed Services Board of Contract Appeals and the U.S. Court of Federal Claims.530 This type of choice of forum clause refers, however, to contractual disputes. It is likely to be impossible to bind third parties (i.e. the kind of plaintiffs who would be launching ATS suits against PMSCs) by such clauses.

2.1 Lack of personal jurisdiction As civil litigation is based on municipal law, the personal jurisdiction of the domestic court over the defendant has to be established according to the law applicable before the court in question. Even under the ATS, a link between the defendant and forum (the state where the claim is lodged) must be established. For instance, in Doe v. Unocal, the French company Total was a defendant together with the US corporation Unocal. In 1998, Totals motion to dismiss for lack of personal jurisdiction was granted by the

528

529

530

International Commission of Jurists, Corporate Complicity & Legal Accountability, vol. 3, pp. 49 ff. E. Benvenisti and G. W. Downs, National Courts, Domestic Democracy, and the Evolution of International Law (2009) 20 EJIL 5972. Martin, Contracting for Wartime Actors, p. 16, paraphrasing US Federal Acquisition Regulation, 48 CFR 5.002 (2007) 252.2337001.

establishing civil responsibility

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District Court.531 The Circuit Court hearing the plaintiffs appeal stated that, as the ATS was silent on personal jurisdiction, courts had to turn to federal rules on this issue.532 The court held that, in the case of non-residents, the test to determine personal jurisdiction was the following:
(1) The nonresident defendant must do some act or consummate some transaction within the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benets and protections of its laws; (2) the claim must be one which arises out of or results from the defendants forumrelated activities; and (3) exercise of jurisdiction must be reasonable.533

The Circuit Court conrmed the District Courts ruling and held that, although Total had a contract with the US-based Unocal, that was not sufcient to establish jurisdiction as nothing in the contract or in its execution was related to the United States.534 The Circuit Court added (in obiter) that when a US subsidiary acts as an agent performing important services for its foreign parent company, US courts could exercise jurisdiction over the former.535 In Wiwa v. Royal Dutch Petroleum, the District Court held that it could exercise jurisdiction over foreign defendants (Royal Dutch Petroleum incorporated in the Netherlands and Shell Transport and Trading incorporated in the UK) because a New York-based unit was acting on their behalf and therefore met the agency requirement for jurisdiction.536 The Circuit Court afrmed on this aspect.537 Establishing jurisdiction of foreign courts is also burdensome for plaintiffs bringing cases in other states. For instance, in the Dutch case opposing Oruma villagers and Milieudefensie to Royal Dutch Shell and Shell Nigeria, the defendants rst motion challenges the jurisdiction of The Hague Court, alleging that the claims against Shell Nigeria and Royal Dutch Shell were separate, involving different legal questions and that consequently they should not be joined. They also contended that the court had no jurisdiction over the Nigerian corporation and that there was no reason to pierce the corporate veil to hold the Dutch parent
531 532 533 536

537

Doe I v. Unocal, 27 F Supp 2d 1174 (CD Cal 1998), at 11856. Doe I v. Unocal, 248 F 3d 915 (9th Cir 2001). 534 535 Ibid., at 923. Ibid., at 925. Ibid., at 9269. Wiwa v. Royal Dutch Petroleum, 1998 US Dist LEXIS 23064 (SDNY 1998), at 89. The unit was the Investor Relations Ofce. Wiwa v. Royal Dutch Petroleum Co., 226 F 3d 88 (2nd Cir 2000).

650 responsibility for violations of international law

company liable for the Nigerian oil leaking.538 On 30 December 2009 the Court held that it has jurisdiction and will hear the merits of the case.539 In France, the case against the SNCF also illustrates the difculties of nding the appropriate forum.540

2.2 Forum non conveniens Based on the forum non conveniens doctrine, a court having personal jurisdiction over a defendant may nonetheless decline adjudication in favour of a foreign forum deemed more appropriate, usually the forum where violations occurred and/or where victims and evidence are. It is also used by courts to prevent forum shopping by plaintiffs.541 This is mainly a common law doctrine that does not exist in most civil law systems.542 The criteria to decline jurisdiction under the forum non conveniens doctrine are: availability of the foreign court, adequacy of the forum and interests (public and private) at stake.543 Consequently, defendants seeking to dismiss a claim under this doctrine must rst demonstrate that another available forum exists.544 The courts will generally be more inclined to defer the cause to another jurisdiction when only the defendant is a resident or a citizen of the forum while the plaintiff is a foreigner. On the other hand, when the plaintiff is a resident or a citizen, the court will be careful in holding the plaintiffs own country to be an incovenient forum.545 With regard to the balance of interests involved, courts take

538

539

540

541 542

543 544

545

See Defendants Motion for the Court to Decline Jurisdiction and Transfer the Case, also Conditional Statement of Defense in the Main Action, paras. 14 and 7480. Court of The Hague, Case no./docket no.: 330891/HA ZA 09579, Judgment in Motion Contesting Jurisdiction of 30 December 2009. As described above, in that case the administrative tribunal did not have jurisdiction over the railway company because it found that the SNCF was not executing an inherently governmental function. See M. A et consorts Lipietz v. Prfet de la HauteGaronne et Socit nationale des chemins de fer franais, no. 0104248, Tribunal administrative de Toulouse, 6 June 2006, at 89; Socit nationale des chemins de fer v. MM. Georges Lipietz et S., Cour administrative dAppel de Bordeaux, no. 06BX01570, 27 March 2007 et MM. Georges Lipietz et S. v. Socit nationale des chemins de fer. Koebele, Corporate Responsibility under the Alien Tort Statute, p. 325. Ibid., p. 323 and International Commission of Jurists, Corporate Complicity & Legal Accountability, vol. 3, p. 51. A notable exception is Quebec, the Civil Code of which provides for the forum non conveniens doctrine. See e.g. Aldana v. Del Monte Fresh Produce, N.A., Inc., 578 F 3d 1283 (11th Cir 2009). See e.g. Sequihua v. Texaco, 847 F Supp 61 (SD Tex 1994), at 64, cited in Koebele, Corporate Responsibility under the Alien Tort Statute, p. 335. See e.g. Wiwa v. Royal Dutch Petroleum Co., 226 F 3d 88 (2nd Cir 2000), at 103; and Koebele, Corporate Responsibility under the Alien Tort Statute, p. 335.

establishing civil responsibility

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into account criteria such as the plaintiffs choice of forum, the availability of proof, the possibility of enforcing a judgment in the foreign forum, avoidance of justice congestion and delay due to a caseload having little or no nexus to the court, and so on.546 A country struggling with riots or conict, which does not offer a reliable and functioning judicial system, where plaintiffs lives might be in danger or where the claim cannot be brought due to lack of legislation, immunities or preclusion will not be deemed an appropriate alternative.547 In Abdullahi v. Pzer, where the pharmaceutical company had allegedly conducted medical experiments in Nigeria without patients consent, the District Court dismissed the case on the basis of forum non conveniens, considering Nigeria as an appropriate forum. But the case was also dismissed in Nigeria. In 2009, the Court of Appeals offered additional guidance to assist the parties and the district court on this issue.548 The Court of Appeals invited the District Court to, inter alia, consider the adequacy of the alternative forum. It also stated that the burden of establishing the existence of an adequate alternative forum is on the defendants shoulders.549 Quebec, which has a mixed legal system and which applies Continental law in civil litigation, also uses the doctrine of forum non conveniens.550 Only two cases against Quebec corporations for violations of international law committed abroad have been led in Quebec, and both were dismissed on this ground. In the rst case, Recherches Internationales du Qubec instituted a class action on behalf of Guyanese victims of a spill of toxic uid against the mining company Cambior Inc. incorporated in Quebec.551 The Superior Court of Quebec did not reject the motion for authorization to institute a class action for lack of jurisdiction, but rather on the basis of forum non conveniens, arguing that Guyana was better suited to hear the case. The second one is the case of the Palestinian Bilin village mentioned above.552 In that case, the Superior Court of Quebec held that, although it has jurisdiction over the claim as the defendants were domiciled in Montreal, the case should be dismissed
546

547 548 550

551 552

See e.g. Sequihua v. Texaco, 847 F Supp 61 (SD Tex 1994), at 64. Koebele, Corporate Responsibility under the Alien Tort Statute, pp. 3348. Koebele, Corporate Responsibility under the Alien Tort Statute, p. 332. 549 Abdullahi v. Pzer, Inc., 562 F 3d 163 (2nd Cir 2009), at 189. Ibid., at 189. S. 3135, Civil Code of Quebec, L.R.Q. c. C-1991, www2.publicationsduquebec.gouv.qc. ca/dynamicSearch/telecharge.php?type=2&le=/CCQ/CCQ_A.html. Recherches International du Quebec v. Cambior Inc., CS [1998] QJ no. 2554 (QL). See n. 462 and accompanying text.

652 responsibility for violations of international law

as the Israeli High Court of Justice was a more appropriate forum. The court based its decision, inter alia, on the residence of the parties,553 the country where the alleged injuries were suffered and the alleged injurious acts occurred, the applicable law554 and the interests of justice.555 In the UK, the notion of appropriate forum was interpreted broadly in the case of Connelly v. R.T.Z. Corporations Plc.556 In that case, the plaintiff, Edward Connelly, had worked for Rossing Uranium Ltd (R.U.L.), which carried on the business of mining uranium at Rossing in Namibia, for ve and an half years between 1977 and 1982. He returned to Scotland in 1983. In 1986, he was diagnosed with cancer of the larynx. He obtained legal aid and commenced an action against R.T.Z. Corp., the English parent company of R.U.L. After a series of proceedings, the House of Lords held that, even if the event took place in Namibia and Namibia was an appropriate forum, the case would not be stayed on the basis of the forum non conveniens. The main reason that led the court to this conclusion was that no legal aid would be available to the plaintiff in Namibia and that, without such aid, Connelly could not proceed.557 Similarly, in the case of Lubbe v. Cape plc, the House of Lords reversed a decision of the Court of Appeal558 and refused to stay the action of 3,000 people against Cape plc, an asbestos company domiciled in England, for injuries caused by its South African subsidiary.559 The

553

554

555

556 557

558 559

On this matter, it should be noted that the court did not take into consideration the fact that the place of residence of the plaintiffs was in fact the West Bank and not Israel and did not make a judgment on the capacity of the High Court of Israel to exercise its jurisdiction over a civil case in an occupied territory. On this matter, the court noted that it was reasonable to believe that the High Court of Israel would apply the Geneva Convention IV. Nevertheless, the court did not look at the law applicable in the West Bank to see if such a claim would be possible; neither did it make a judgment on the capacity of the Israeli Court to apply this law in occupied territories. Bilin (Village Council) and ors v. Green Park International Inc. and ors, Superior Court of Quebec, no. 50017044030081, 18 September 2009, at 37. Connelly v. R.T.Z. Corporations plc [1997] 4 All ER 335. For a general comment on this case, see Richard Meeran, Liability of Multinational Corporations: A Critical Stage in the UK in M. Kamminga and S. Zia-Zari (eds.), Liability of Multinational Corporations under International Law (The Hague: Kluwer, 2000), p. 256. However, the Queens Bench Division judged the action time-barred: Connelly v. R.T.Z. Corp. plc & anor [1999] CLC 533. Lubbe v. Cape plc, [1998] EWCA Civ 1351 (30 July 1998). Lubbe v. Cape plc [2000] 4 All ER 268. The plea for a stay was based in forum non conveniens.

establishing civil responsibility

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House of Lords came to this conclusion, in part, as in the Connelly case, because funding was not available in South Africa.560 Even if the forum non conveniens doctrine can bar many claims against corporations and their personnel for violations of international law committed abroad, in the case of PMSCs this may prove to be less of a jurisdictional barrier. PMSCs often operate in conict zones where state apparatuses are unable to offer a proper judicial process. It may thus be more difcult for defendants to successfully claim that the forum where the impugned act was committed is more appropriate.561 In addition, the immunity accorded to PMSCs in local (territorial) courts when operating overseas may be a boon for jurisdiction before US courts: in In re Xe Services, the District Court took CPA Order no. 17 (providing contractors with immunity in Iraqi courts) into account in refusing to dismiss the action based on forum non conveniens. It held that the defendant PMSC had failed to demonstrate that an available alternate forum exists.562

2.3 Non-justiciable issues Cases alleging violations of international law abroad might raise concerns with regard to foreign relations, the separation of powers, or constitutional concerns of the forum country with the state where alleged facts have occurred. For this reason, US courts have a discretionary power to dismiss a case in which a decision would impede foreign relations or diplomacy.563 In the United States, different doctrines may be relied on to dismiss a case deemed to involve such non-justiciable issues: the political-question doctrine,564 the act-of-state doctrine and the

560

561

562 563 564

For more comments on this case, see T. Farrow Globalization, International Human Rights, and Civil Procedure (2003) 41 Alberta L Rev 671, 697; Meeran, Liability of Multinational Corporations, p. 258. The plaintiffs alleged that Cape plc knew that exposure to asbestos was gravely injurious to health and failed to take proper steps to ensure the safety of the workers of its subsidiaries and other people living in the area of the business operations. The burden of proof in forum non conveniens motions is on the party seeking dismissal: Fidelity Bank plc v. N. Fox Shipping N.V., 242 Fed Appx 84 (4th Cir 2007). In re XE Services Alien Tort Litigation, 665 F Supp 2d 569 (ED Va 2009), at 602. Koebele, Corporate Responsibility under the Alien Tort Statute, p. 367. Guidelines for judicial analysis of this doctrine in the United States were established by the Supreme Court in the case of Baker v. Carr. Accordingly, the political-question doctrine requires application of six independent tests, satisfaction of any of which may support dismissal:

654 responsibility for violations of international law

comity-of-nations doctrine.565 Therefore, despite having jurisdiction, a court might refuse to adjudicate a case that, for instance, should be addressed by the political rather than the judicial branch of the state according to the constitution, or a case that would require the court to rule on an act made by a foreign sovereign government within its own sovereign territory. The Bush administration led a number of Statements of Interest expressing concerns about ATS litigation. For instance, in the case of Sarei v. Rio Tinto, the Department of Justice alleged that delivering judgment in that case would risk a potentially serious adverse impact on the peace process, and hence on the conduct of the foreign relations.566 In that case, Bougainville islanders lodged ATS claims in 2000 against Rio Tinto (UK) and Rio Tinto (Australia) for environmental damages, health problems, discrimination, war crimes and crimes against humanity. The corporations were in joint venture with the Papua New Guinea government; therefore, the plaintiffs alleged that they could be held responsible for violations committed by state agents. The District Court held that all claims should be dismissed since adjudicating the case would impede the peace process and would require the court to rule on the act of a foreign sovereign state.567 The Circuit Court reversed this decision stating, inter alia, that although Statements of Interest led by the State Department should be given serious weight, they should not be deemed as controlling the courts decision and that Ultimately, it is our responsibility to determine whether a political question is present, rather than to dismiss on that ground because the Executive Branch expresses some hesitancy about a case proceeding.568 In that case, the Circuit
[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
565

566 567

See Baker v. Carr, 369 US 186, 82 S Ct 691 (US Tenn 1962), at 710. For an overview of these doctrines, see Koebele, Corporate Responsibility under the Alien Tort Statute, pp. 34773. Sarei v. Rio Tinto plc, 221 F Supp 2d 1116 (CD Cal 2002), at 11801. 568 Ibid. Sarei v. Rio Tinto plc, 487 F 3d 1193 (9th Cir 2007), at 1205.

establishing civil responsibility

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Court found that none of the plaintiffs claims presented non-justiciable questions and reversed the District Court decision on that point.569 With regard to the District Courts dismissal of racial discrimination claims based on the act of state doctrine, the Circuit Court stated that systematic racial discrimination was prohibited by a norm of jus cogens and that international law does not recognize a violation of jus cogens as a sovereign act. Therefore, claims could not be dismissed under the actof-state doctrine.570 As to the District Court dismissal under the doctrine of comity on the grounds that the Papua New Guinea laws prohibited the plaintiffs from ling a claim elsewhere than in Papua New Guinea, the Circuit Court held that the lower courts decision was not an abuse of discretion, but remanded the case for further consideration in the light of its decision, particularly regarding the weight to be given to the government Statements of Interests.571 In a case brought by Holocaust survivors against the Vatican Bank, the Order of Friars Minor and the Croatian Liberation Movement, alleging that those organizations proted from the acts of genocide committed by the Croatian Ustasha regime, the Circuit Court of California held that the claims related to property such as looting of assets and properties and unjust enrichment could proceed, but not those related to the assistance of the war objectives of the Ustasha regime by the defendants. The court stated that those claims were barred on the ground of the politicaldoctrine question. The court said:
Simply because the Nuremberg Charter does not expressly preclude national courts from trying war criminals, Nuremberg Charter [sic] does not mean that it is our place to step in a half-century later and condemn the Vatican Bank and related parties for participat[ing] in the activities of the Ustasha Regime in furtherance of the commission of war crimes, crimes against humanity, [and] crimes against peace. We are not a war crimes tribunal. To act as such would require us to intrud[e] unduly on certain policy choices and value judgments that are constitutionally committed to [the political branches,] or we do not and cannot

569 571

570 Ibid., at 1208. Ibid., at 1210. Ibid., at 121113. In the Apartheid Litigation cases, the District Court refused to dismiss claims under the political-question doctrine on the ground that the government in its Statement of Interests did not state that the litigation would necessarily deter investment in states where a political regime is contested and would not require the court to judge the US policy and relationship with apartheid-era South Africa as the US government did not instruct or authorize defendants to commit the alleged, wrongful acts: In re South African Apartheid Litigation, 617 F Supp 2d 228 (SDNY 2009), at 2845.

656 responsibility for violations of international law

know why the Allies made the policy choice not to prosecute the Ustasha and the Vatican Bank.572

The Court of Appeal distinguished its decision from Kadic, which, although it involved similar acts and a conict in the same region, was not deemed barred on the political-question doctrine. The court specied that claims in Kadic focused on the acts of a single individual during a localized conict rather than asking the court to undertake the complex calculus of assigning fault for actions taken by a foreign regime during the morass of a world war.573 Another decision that might be of particular relevance with regard to claims against PMSCs concerns claims brought by families of victims killed or injured during the demolition of homes in the Palestinian Territories by the Israeli Defence Forces. The families led claims against bulldozer manufacturer Caterpillar, alleging that it provided the Israeli forces with equipment knowing that it would be used in violation of international law.574 The case was dismissed based on the politicalquestion doctrine. Indeed, the United States government paid for the bulldozers purchased by the Israeli forces from Caterpillar. Therefore [a]llowing this action to proceed would necessarily require the judicial branch of our government to question the political branches decision to grant extensive military aid to Israel.575 One may thus wonder whether claims against PMSCs under governmental contracts or which services are paid by a government might be barred on the political doctrine question based on this decision. In fact, the applicability of the political-question doctrine has been invoked in suits against PMSCs that are not based on the ATS,576 and courts take that wider jurisprudence into account in the ATS PMSC cases.577 In In re Xe Services, the District Court characterized the political-question

572 573 575 576

577

Alperin v. Vatican Bank, 410 F 3d 532 (9th Cir 2005), at 55960, references omitted. 574 Ibid., at 562. Corrie v. Caterpillar, Inc., 503 F 3d 974 (9th Cir 2007). Ibid., at 982. See e.g. Carmichael v. Kellogg, Brown & Root Services Inc., 572 F 3d 1271 (11th Cir 2009) dealing with a vehicle crash in Iraq. In that case, the court held that the US military had made virtually all decisions regarding the convoy and dismissed the action based on the political-question doctrine. See, inter alia, also Lane v. Halliburton, 529 F 3d 548, 55860 (5th Cir 2008); McMahon v. Presidential Airways Inc., 502 F 3d 1331, 135861 (11th Cir 2007); Whitaker v. Kellogg, Brown & Root, Inc., 444 F Supp 2d 1277, 12812 (MD Ga 2006); Potts v. Dyncorp Intl LLC, 465 F Supp 2d 1245, 12512 (MD Ala 2006). See the courts consideration of such cases in In re XE Services Alien Tort Litigation, 665 F Supp 2d 569 (ED Va 2009), at 601.

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doctrine in the national security context as prevent[ing] judicial second-guessing of the battleeld decisions of the U.S. government.578 In Al Quraishi v. Nakhla, the Maryland District Court helpfully catalogued the existing decisions with regard to the political-question doctrine and PMSC activities.579 The courts summary of its overview is worth quoting at length:
Viewing these cases collectively, however, suggests that when dealing with private military contractors, the presence vel non of a political question turns rst on the level of actual control the military exerted over the contractors actions which led to the alleged tortious conduct. Where the military is only minimally or peripherally involved in the contractors actions or decisions (as in McMahon), or only exercises control over areas of the contractors work unrelated to the precise behavior which led to the alleged tort (as in Lane and Potts), or only has control over a contractor at a general or theoretical level but not in practice (as in Harris and Al Shimari), the suit does not raise a political question. But where the military in fact exerts controlling authority over a contractors actions and those actions result in a tort (as in Carmichael and Whitaker), examining the contractors acts would necessarily require the court to second-guess the militarys judgment. If that judgment is of the kind normally reserved for the political branches and not the Judiciary, then the suit raises a political question and cannot proceed.580

The courts description of control in different cases helps to illustrate its conclusion. In Carmichael, a non-ATS case involving a soldier injured when a convoy operated by a PMSC ipped over, the military control over the convoy was near-absolute: the military decided the date and time of the convoys departure, the speed the convoy traveled, the route used, the quantity of cargo, the number of trucks, the distance between vehicles, and the security meaures used to safeguard the convoy.581 According to the appellate court, [t]here is not the slightest hint in the record suggesting that KBR played even the most minor role in making any of these essential [tactical] decisions.582 As such, for PMSCs running convoys, the justiciability of claims resulting from their actions in that context will depend on the degree of

578 580 581

582

579 Ibid., at 600. Al Quraishi v. Nakhla, 728 F Supp 2d 702 (D Md 2010), at 1119. Ibid., at 16. Description provided by Messitte J in Al Quraishi v. Nakhla, 728 F Supp 2d 702 (D Md 2010), at 15. Carmichael v. Kellogg, Brown & Root Services Inc., 572 F 3d 1271 (11th Cir 2009), at 1282.

658 responsibility for violations of international law

discretionary decision-making power they have over those operations. The more independent they are, the more justiciable their acts are likely to be. In this respect, it is important to note that the mere fact they are working for or with the US military in a conict zone is not, of itself, sufcient to sustain a claim of non-justiciability on the basis of a political question.583 Furthermore, in a situation in which the military has control of an operation in general, but where PMSCs are acting in a way that contravenes ofcial US policies and directives, the suit will not be barred by the political-question doctrine.584 Courts adjudicating the actions of PMSCs in the context of US detention operations in Iraq have held that where the actions of the contractors go against ofcial policy,585 where the contractor supervised the day-to-day operations of its own employees586 or where the contractors were acting of their own volition and not following the instructions or policies of the political branches,587 their actions do not fall under the political-question doctrine and may be adjudicated. In addition, with regard to shootings or beatings by the PMSC Blackwater (Xe Services), the US government intervened in the case to argue that if defendants committed the alleged conduct, they were not acting as employees of the United States when they did so,588 thereby signalling that judging the claims would not put the court in the position of adjudicating the kind of executive action the doctrine is designed to protect. There may be a discernible difference between actions based on contractor negligence leading to injury and actions that involve violations of international law, such as killing of civilians and torture or inhuman
583

584

585 586 587 588

Al Quraishi v. Nakhla, 728 F Supp 2d 702 (D Md 2010), at 17. In addition, it should be noted that a motion to dismiss based on the political question doctrine may come at an early stage in the case, before discovery has occurred. As such, courts at times reserve a nal determination on the issue to a later stage when there is more evidence to dispose of the matter: In Carmichael, the District Court reversed itself on precisely this issue after evidence produced in discovery. See Carmichael v. Kellogg, Brown & Root Services Inc., 572 F 3d 1271 (11th Cir 2009). In Al Quraishi, the court indicated that the aspect of the claim relating to the possibility of accessing information and documents sustaining the motion to dismiss based on political questions could be revisited during or after discovery. See Al Quraishi v. Nakhla, 728 F Supp 2d 702 (D Md 2010), at 19. See esp. Al Shimari v. CACI Premier Technology, Inc., 657 F Supp 2d 700 (ED Va 2009), at 708, 710. Ibid., at 708, 710. In re XE Services Alien Tort Litigation, 665 F Supp 2d 569 (ED Va 2009), at 601. Al Quraishi v. Nakhla, 728 F Supp 2d 702 (D Md 2010), at 16. In re XE Services Alien Tort Litigation, 665 F Supp 2d 569 (ED Va 2009), at 601.

establishing civil responsibility

659

and degrading treatment. Presumably in a rule-of-law state, it will always be contrary to ofcial policy and doctrine to commit grave breaches of IHL. On a separate note, to some extent, civil litigation against PMSCs and making a case for state responsibility for the same action may seem to work against one another. Furthermore, factors relevant to the determination of a political question for PMSCs are also closely related to the question of immunity from jurisdiction.

2.4 Immunities In some cases, especially those related to government action in an armed conict or its policy towards it, PMSCs might be entitled to immunity from civil claims.589 For instance, in the United States, the Federal Tort Claims Act (FTCA) bars suit for any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.590 This immunity has been extended to contractors by the courts.591 In the cases against PMSCs allegedly involved in the mistreatment of prisoners in Abu Ghraib prison, the court granted FTCA immunity to the PMSCs.592 In those cases, Iraqis lodged claims against Titan and CACI, which were providing interpreters and interrogators, respectively, to the US military. The district judge of Columbia barred claims against Titan on the grounds that uniquely federal interests593 were at stake and that the contractors were soldiers in all but name,594 but allowed the case against CACI to proceed. In his analysis, the judge stated that being interpreters or interrogators during interrogation of people detained by the military in a conict zone were activities both necessary to and in direct connection with actual hostilities.595 With regard to Titan employees, the judge held that they were under the exclusive direction and control of the military chain of command596
589 590

591 592

593 594 595 596

See Ryngaert, Litigating Abuses, pp. 10501. 28 USC 2680 j. See esp. on this issue K. Rakowsky, Military Contractors and Civil Liability: Use of the Government Contractor Defense to Escape Allegations of Misconduct in Iraq and Afghanistan (2006) 2 Stanford J Civil Rights & Civil Liberties 36599. Koohi v. US, 976 F 2d 1328, at 1337 (9th Cir 1992). Ibrahim v. Titan Corp., 391 F Supp 2d 10 (DDC 2005) and Saleh v. Titan Corp., 580 F 3d 1 (CADC 2009), at 9. Ibrahim v. Titan Corp., 391 F Supp 2d 10 (DDC 2005). Ibid., at 22. Ibrahim v. Titan Corp., 556 F Supp 2d 1 (DDC 2007), at 4 and 10. Supervisors of the company were, inter alia, forbidden by the military from observing linguists performing their duties or from discussing their interrogations, ibid., at 6.

660 responsibility for violations of international law

and were thus entitled to government contractor immunity. As for CACIs interrogators, the judge concluded that they were both under the control of the military and the company. Therefore, CACI supervisors retained authority independently from the military. The judge concluded that, at this stage of the procedure, he could not grant them and the company immunity.597 The Court of Appeal afrmed the decision regarding Titan and reversed it regarding CACI.598 The Court of Appeal rejected the criteria of exclusive control used by the district judge to grant contractors immunity. The majority held that the exclusive operational control test does not protect the full measure of the federal interest embodied in the combatant activities exception. Surely, unique and signicant federal interests are implicated in situations where operational control falls short of exclusive.599 The plaintiffs have petitioned for certiorari before the US Supreme Court. In Al Quraishi v. Al Nakhla and ors, another ATS case brought by a group of Iraqi detainees against a PMSC contractor (both against the company L-3 and a named individual), the District Court expressly declined to follow the Appeals Court decision regarding FTCA immunity for contractors.600 It held that the combatant activities exception (i.e. granting immunity from civil suit) was not meant to apply to all contractors (as Congress had not fashioned the legislation in such terms) and that the leading Supreme Court case on the issue had not so extended it.601 This issue will undoubtedly be central in the resolution of these cases as they make their way through US courts. The Appeals Court reversed (on the basis of Al Shimari) but the decision was not unanimous. A strong dissenting opinion indicates the subject is far from settled.602 Immunity may ow from an additional source as well: CPA Order no. 17 insulated PMSCs from suit in Iraqi courts. Pursuant to this order (rst enacted in 2003), non-Iraqi PMSCs and their non-Iraqi employees and directors were granted immunity from Iraqi laws. Therefore, although Iraq might have been the appropriate and logical forum to hear claims
597 599 598 Ibid., at 10. Saleh v. Titan Corp., 580 F 3d 1 (CADC 2009). Ibid. Similarly, claims brought against the producers of defoliant Agent Orange, used during the Vietnam War by US troops were barred based on contractor immunity: Vietnam Assn for Victims of Agent Orange v. Dow Chemical Co., 517 F 3d 104 (2nd Cir 2008). 601 Al Quraishi v. Nakhla, 728 F Supp 2d 702 (D Md 2010), at 257. Ibid., at 256. Al Quraishi v. L-3 Services Inc. (4th Cir 2011), http://pacer.ca4.uscourts.gov/opinion.pdf/ 101891.P.pdf.

600 602

establishing civil responsibility

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against misconduct of PMSC employees in Iraq, such litigation was not possible. Furthermore, PMSCs are attempting to argue that the immunity granted to them by Order no. 17 with respect to Iraqi courts should provide them with immunity before US courts in ATS cases.603 In Al Quraishi, the District Court witheld judgment on this issue pending production of the relevant contracts.604 As noted above, however, in In re Xe Services, the District Court of Virginia pointed to the immunity granted by CPA Order no. 17 as a reason for denying a motion to dismiss based on forum non conveniens.605

Conclusion

Civil liability for violations of international law seems to be increasingly accepted and available in various countries.606 Even so, however, and even if it allows for plaintiffs to take the initiative without the need for approval of a public prosecutor or judge, it may be difcult for a claim to pass through the pre-trial stage without being substantially reduced or simply dismissed.607 This is particularly true for claims against PMSCs as they are likely to involve political questions and because contractors may benet from combat activities immunity. As the discussion above shows, the law with respect to these issues, and to some extent regarding the applicability of the ATS to corporations at all, is unsettled. Nevertheless, the expense and public relations problems linked with civil suits might well prompt PMSCs to exercise care when concluding and executing contracts.608 Finally, we wish to point out that this section has focused on claims against corporations for violations of international law, but this should not be seen as diminishing the relevance of other private means of judicial action in establishing civil responsibility of corporations. Indeed, some calls for increased supervision from within the United States are
604 Al Quraishi v. Nakhla, 728 F Supp 2d 702 (D Md 2010), at 489. Ibid., at 49. See n. 562 above and accompanying text. See e.g. Ramasastry and Thompson, Commerce, Crime and Conict; International Commission of Jurists, Corporate Complicity & Legal Accountability, vol. 3. See also E. Mongelard, Corporate Civil Liability for Violations of International Humanitarian Law (2006) 88 Intl Rev Red Cross 66591. See Ryngaert, Litigating Abuses, p. 1053. We note that Blackwater/XE services ended up settling with the plaintiffs out of court on 6 January 2010. See D. Zucchino, Iraqis Settle Lawsuits over Blackwater Shootings, Los Angeles Times, 8 January 2010.

603 605 606

607 608

662 responsibility for violations of international law

related to concerns regarding fraud by the companies and not so much to violations of international law.609 Some of the mechanisms that may be put in place to control companies more closely for fraud could also be useful for preventing international law violations, or may at least facilitate establishing new mechanisms specic to international law violations.

E Implementing PMSC responsibility through self-regulation

We discussed self-regulation by PMSCs above in relation to how companies may be bound by IHL. In that context, we also assessed the extent to which codes of conduct are legally binding (as unilateral declarations) and enforceable. Obviously, that discussion is pertinent to whether and how PMSC conduct may be governed through self-regulation; we therefore refer the reader to Chapter 3 above. Here, we simply wish to add a few remarks regarding the effectiveness rather than purely the legal quality of such measures.610 One of the most salient examples of self-regulation of PMSCs is the recent adoption of an International Code of Conduct for Private Security Providers, drafted and signed with the support of key states and representatives of major rms. The implementation of the pledges in the Code of Conduct is to be overseen by a yet-to-be-created mechanism. The code provides for the creation of a steering committee that bears the responsibility of developing the initial arrangements for the independent governance and oversight mechanism, including by-laws or a charter which will outline mandate and governing policies for the mechanism.611 As this book was going to press, the steering committee has circulated a Charter for comment. As observers of the Private Security Company (PSC) Code of Conduct process and self-regulatory codes in general note, the effectiveness of this enforcement mechanism will be pivotal to the effectiveness of the instrument.612 The rationale for the creation of the monitoring mechanism and its corollary institution was explained
609

610 611 612

See e.g. the litigation regarding fraud currently before US courts: US ex rels Melan Davis and ors. v. Erik Prince and ors, 2010 WL 2679762 (2 July 2010). See also US ex rel. DRC, Inc. v. Custer Battles, LLC, 562 F 3d 295 (4th Cir 2009). See also Cockayne et al., Beyond Market Forces, esp. Ch. 7, Clubs. International Code of Conduct for Private Security Service Providers, s. C 11. See e.g. statement by Devon Chaffee of Human Rights First, in HRF press release: 58 Firms Sign Historic International Code of Conduct for Private Security Service Providers (9 November 2010), www.humanrightsrst.org/2010/11/09/58-rms-sign-historic-international-code-of-conduct-for-private-security-services-providers/.

implementing pmsc responsibility

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by the Swiss Federal Department of Foreign Affairs, the NGO DCAF and the Academy of International Humanitarian Law as follows:
the industry itself has asserted that the CoC [Code of Conduct] will only be effective insofar as it can be independently and effectively enforced and its violations meaningfully sanctioned. For these reasons, the IAM and its accompanying implementing institution are integral portions of the CoC; the CoC will not be complete until such an oversight institution and effective accountability mechanisms are developed, implemented and enforceable against participating companies.613

Possibly even without that mechanism, however, the fact that the adoption of the code garnered the support of states may be viewed as strengthening the ability of the code to have an impact on the conduct of PSCs.614 Another mechanism in the Code of Conduct that could lend itself to effective self-regulation is a reporting requirement. While reporting to clients or states may not necessarily increase public transparency, it is an important rst step in facilitating investigations and accountability. In the Code of Conduct, many of the specic principles regarding the conduct of personnel set out reporting requirements with respect to violations of international law. For example, with respect to the prohibition of torture or other cruel, inhuman or degrading treatment, the prohibition of sexual exploitation or abuse or gender-based violence, the prohibition of human-trafcking and the prohibitions on the worst forms of child labour, signatory companies pledge that they and their personnel will be vigilant and report instances of violations to Competent Authorities.615 The code sets out different levels of knowledge as a threshold for the reporting requirement.616 There is, in
613

614

615

616

Swiss Federal Department of Foreign Affairs, in collaboration with DCAF and ADH, Fact Sheet: Code of Conduct for Private Military and Security Companies (PMSCs) (9 November 2010), pp. 23, www.securitymanagementinitiative.org/index.php?option= com_docman&task=doc_download&gid=244&Itemid=&lang=en. Caroline Holmqvist argues that the endorsement of voluntary codes for private security industry behaviour by actors external to the industry itself is likely to increase the prestige associated with company compliance. Holmqvist, Private Security Companies, p. 47. International Code of Conduct for Private Security Service Providers, paras. 37, 38, 39, 41. In the case of torture, they must also report to the client. Competent authorities are dened as any state or intergovernmental organization which has jurisdiction over the activities and/or persons in question (Section B. Denitions). E.g. for torture, having a reasonable suspicion triggers a reporting requirement, whereas PSCs must only report human-trafcking where discovered.

664 responsibility for violations of international law

addition, a general requirement to report any breach of this Code, but the code fails to specify to whom or to which body such reports must be made.617 There is another problematic gap, however: although the code sets out rules on the use of force, there is no requirement to report any violation of those rules beyond the general requirement described above. There is, however, a requirement to make a report following a use of force or at least following a serious incident but not regarding detention and apprehension of persons.618 The contours of such a requirement are signicant for the ability of self-regulation to control PMSCs. While every use of force by PMSCs is obviously not necessarily a violation of either IHL, IHRL or the Code of Conduct, if PMSCs are not required to account for every serious use of force, they are not likely to perceive themselves as accountable for it. Oversight of the use of force cannot be done through spot checks or random inspections; most often, compliance with the rules can only be assessed through incident reports. Moreover, it may be more difcult for companies to ensure that they respect their pledge to avoid direct participation in hostilities if their personnel (and the companies themselves) do not systematically report how and when force is used.619 The Code of Conduct requires signatory companies to make an incident report documenting any incident involving its Personnel that involves the use of any weapon, which includes the ring of weapons under any circumstance (except authorized training), any escalation of force, damage to equipment or injury to persons, attacks, criminal acts, trafc accidents, incidents involving other security forces as well as any reporting the client requires. The company must conduct an internal inquiry looking into the basic facts of the event as well as circumstances leading up to the incident and measures taken by the PMSC itself in response.620 According to the Code of Conduct, the company must provide a copy of the written report to the client and to the Competent Authorites but only to the extent required by law. It is unfortunate that the code does not require such reports to be led with the oversight mechanism in addition; nevertheless, this reporting
617 618 619

620

International Code of Conduct for Private Security Service Providers, section F 28. Ibid., section G 63 (Incident reporting). It appears that the United States shares this concern, as private security contractors contracted by the United States are required to report uses of force in situations in proximity to combat: Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, Public Law no. 110417, s 853, 122 Stat 4544 (2008). Ibid.

implementing pmsc responsibility

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requirement is an important step to facilitate the due diligence obligations of states that contract PSCs. Finally, we note that this self-regulatory instrument touches only upon one aspect of the private military and security industry: private security providers. There is thus no international self-regulatory code for all of the companies and activities that fall within the purview of our study. This is signicant it was not security personnel, but interrogators and translators that were involved in the Abu Ghraib scandal. While we do not differentiate between private security companies and private military companies, the companies themselves are (theoretically) free to do so (to the limits of good faith) under self-regulation. The ability of the industry to regulate only the aspects it sees t, only to the extent to which it sees t, means that, albeit laudatory, self-regulation is not a panacea. PMSCs have also created industry associations that play a role in selfregulation. PMSC associations are acutely aware of the perceived lack of transparency and accountability of PMSCs, and they understand that reputation is a hugely signicant factor in opening up potential markets.621 The media exposure such as after the 2007 Nisoor Square shootings by the Blackwater company622 or CACIs involvement in the mistreatment of detainees in Abu Ghraib623 has undoubtedly strongly inuenced PMSCs willingness to adopt voluntarily codes of conduct in order to enhance their reputation. The head of the British Association of Private Security Companies does not mince words when it comes to the perceived benets of self-regulation, saying:
they will be considered as legitimate actors in the provision of security services on an international scale, and a rms reputation may increasingly become a decisive factor in the acquisition of contracts. Thus, the ultimate incentive for self-regulation lies in the increase of competitiveness in the race for lucrative contracts with major clients, such as Western governments.624
621

622

623

624

A. Bearpark and S. Shulz, The Future of the Market in S. Chesterman and C. Lehnardt (eds.), From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford University Press, 2007), p. 243, also online: www.bapsc.org.uk/downloads/Ch13_Bearpark_Schulz.pdf. See Blackwater Shooting Incident Bane or Boon?, The Seattle Times, 20 September 2007, http://seattletimes.nwsource.com/html/iraq/2003893130_iraq20.html. See P. Beaumont, Abu Ghraib Abuse Firms are Rewarded, The Observer, 16 January 2005, www.guardian.co.uk/world/2005/jan/16/usa.iraq. Bearpark and Shulz, The Future of the Market, pp. 2489. The authors further underline that another incentive for self-regulation may rely on insurance premiums that can be xed at a higher rate for companies that are not prepared to commit themselves to an

666 responsibility for violations of international law

Private industry associations have developed their own clubs, with rules and procedures for admission to the association that include acceptance by the PMSC that it will adhere to and comply with the associations Code of Conduct.625 Different codes of conduct have been adopted, often in collaboration with other stakeholders such as governments or nongovernmental/civil society organizations.626 The International Stability Operations Association (IPOA)627 and the Private Security Company Association for Iraq (PSCAI),628 for instance, are both industry lobbies also concerned with the promotion of PMSCs ethic standards enhancement. In order to become members, PMSCs must adopt and comply with the code of conduct/charter of the associations.629 Membership in the

625

626

627

628

629

acknowledged code of conduct or who have a record of bypassing it, not least because these companies may expose their own personnel to higher risks. Ibid., p. 249. Cockayne et al., Beyond Market Forces, pp. 13444, 15864, 16770 on PMSCspecic clubs. The IPOA has a procedure to enhance compliance with its Code of Conduct, but in terms of enforcement, despite the various mechanisms to enforce the IPOA Code of Conduct, industry associations cannot be deemed to enforce IHL or IHRL. For comments on the now-defunct Enforcement Mechanism, see Lindsey 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. 1389. The IPOA replaced its Enforcement Mechanism with a Standards Compliance and Oversight Procedure in September 2009. See also Cockayne et al., Beyond Market Forces, pp. 13943. Codes of conduct can be shaped through different channels. Redmond identies different ways for drafting codes of conduct for transnational corporations: an individual company can decide to develop its own code of conduct (e.g. Levi-Strauss and Nike); different companies can form an association and jointly adopt a code; codes of conduct can be drafted by multi-stakeholders including companies, non-governmental associations, governments and civil society or by international organizations; or model agreements [can] usually [be] developed by civil society organizations as benchmarks or frameworks for individual or industry codes. Paul Redmond, Transnational Enterprise and Human Rights: Options for Standard Setting and Compliance (2003) 37 The Intl Lawyer 69, 889. As of October 2012, close to fty PMSCs are members of ISOA, http://stability-operations.org/index.php. It was formerly the International Peace Operations Association (IPOA) and is better known by that acronym. PSCAI consists of forty PMSCs. For more information, refer to the PSCAI website, www.pscai.org/index.html. The idea of IPOA codes of conduct emerged in 2000 following extensive recourse of private security companies made by the UN peacekeeping mission in Sierra Leone. See www.stability-operations.org (the IPOA website). On PSCAI, see www.pscai.org/ pscreg.html.

implementing pmsc responsibility

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British Association of Private Security Companies (BAPSC),630 albeit restricted to UK-based PMSCs, follows the same pattern, as it is contingent upon the adoption of the BAPSC Charter (an equivalent code of conduct).631 The Pan-African Security Association (PASA) is a nonprot organization that also makes membership dependent upon commitment by PMSCs to its Code of Principles and Code of Conduct,632 but is limited to PMSCs operating in Africa.633 Lying somewhere on the spectrum in between international and industry associations codes of conduct are the Sarajevo Guidelines. Following the extensive recourse to PMSCs in the Balkans, the NGO Saferworld and the Centre for the Security Studies of BosniaHerzegovina initiated the Sarajevo Process in 2006 with the view to providing a regulatory framework for PMSC activities. In order to further this aim, a code of conduct was developed by a diverse group of client organizations and private security provides from across Bosnia and Herzegovina and adopted in September 2006 together with the Sarajevo Guidelines for the Procurement of Private Security Companies.634 These codes of conduct have undoubtedly had the merit of securing the commitment of PMSCs to IHL and IHRL, at least to some extent. The fact that PMSCs are also the instigators of their drafting may play a role in their respect for those codes, as they are not externally imposed upon them.635 However, PMSC codes of conduct have not escaped the more general criticism

630

631 632

633 634

635

BAPSC current membership consists of four full members, eight provisional ones and eleven associate members. More information on the association is at www.bapsc. org.uk. The BAPSC Charter can be fround on the BAPSC website. The PASA Code of Principles and Code of Conduct is at http://pasa-africa.org/ Regulation.aspx. For PASAs membership requirements, see http://pasa-africa.org/Members.aspx. The Sarajevo Code of Conduct for Private Security Companies is available at http:// www.seesac.org/uploads/studyrep/Code_of_conduct.pdf. See the Introduction to the Code for further information on the Sarajevo Process. See Redmond, who argues, voluntary codes have the singular advantage of feasibility of achievement. Redmond, Transnational Enterprise and Human Rights, pp. 901. Other advantages of codes of conduct he identies include the fact that voluntary codes may be easier to negotiate, involve a strong reputational incentive and are not dependent upon state consent, thereby allowing industry to abide by more stringent standards than states are willing to impose. Ibid.

668 responsibility for violations of international law

formulated against the codes of conduct of transnational corporations,636 and some raise questions as to the effectiveness of industry-level self-regulation.637 On a general level, critics have usually maintained that, because codes are drafted by transnational corporations themselves, their content is discretionary, minimal and sometimes too vague, impeding their effective applicability.638 Furthermore, as Redmond argues, the predominantly unilateral character of codes undermines any impulse towards the development of a consensus view as to the appropriate social, labor and environmental standards for international business.639 When it comes to the PMSC codes described above, it is true that their precise content uctuates from one initiative to another. However, they all recall the necessary commitments of PMSCs to domestic law, international human rights and humanitarian law, and the consequent importance of instruction and training of PMSC personnel. Special emphasis is usually put on principles of transparency and the accountability of members, rules on the use of force and illicit arms-trafcking. Management obligations of PMSC staff also usually form part of those codes.640 Finally, some call on member PMSCs to restrict the scope of potential clients to legitimate entities in order to prevent contracts in contradiction with national or international laws.641 None deals, however, with the distinction between
636

637

638

639 640

641

For general criticism, see F. McLeay, Corporate Codes of Conduct and the Human Rights Accountability of Transnational Corporations: A Small Piece of A Larger Puzzle, in O. de Schutter (ed.), Transnational Corporations and Human Rights (Oxford: Hart, 2006); Sean D. Murphy, Taking Multinational Corporate Codes of Conduct to the Next Level (20045) 43 Columbia J Transnl L 389433; S. Avignon, Les Codes de conduits sont-ils devenus des outils du management international? (2007) 3 Revue de droit des affaires internationales 335; T. Conzelmann and K. D. Wolf, The Potential and Limits of Governance by Private Codes of Conduct in J. C. Graz and A. Nlke (eds.), Transnational Private Governance and its Limits (London: Routledge, 2008), p. 98; Redmond, Transnational Enterprise and Human Rights; A. Voiculescu, Privatizing Human Rights? The Role of Corporate Codes of Conduct in L. Williams (ed.), International Poverty Law: An Emerging Discourse (London: Zed Books, 2006), p. 176. There are three overlapping areas of concern: legitimacy, accountability and effectiveness. See Ranganathan, Between Complicity and Irrelevance?, pp. 354 ff. See e.g. E. Mazuyer, LAutorgulation des entreprises par les codes de conduites: un mcanisme effectif pour les engagements thiques? in Y. Kerbrat and H. Guerari (eds.), LEntreprise dans la socit internationale (Paris: Pedone, 2010), p. 201. Redmond, Transnational Enterprise and Human Rights, p. 94. Those management obligations range from duties attached to their selection, contracts, prohibition of child labour, disciplinary measures in case of non-compliance and accountability in the event of the commission of an international crime. E.g. IPOA member companies are to restrict their clients scope to legitimate, recognized governments, international organizations, non-governmental organizations and

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direct participation in hostilities and self-defence, which is admittedly complex, but in our view crucial.642 One of the major aws of codes of conduct that is widely identied is their lack of enforceability and transparency.643 The implementation of PMSC codes of conduct is envisaged by PMSC associations through some form of internal supervisory mechanism to monitor compliance. The IPOA Code envisages an Enforcement Mechanism now replaced by the Standards of Compliance which may receive complaints against member companies lodged by any person or organization in the eventuality of violation of the codes provisions.644 The complaint mechanism is structured around different panels of the Standards Committee, with the ultimate sanction of expulsion in case non-compliance with the code is conrmed.645 However, the preamble underscores that the IPOA is not a law enforcement or judicial organization, and will not attempt to prove the guilt or innocence of a member company in a criminal or civil legal case. The whole procedure is not to be seen as a punitive measure, but rather as a mechanism to inuence the company to abide by its commitments. An oversight mechanism whose ultimate penalty is expulsion

642 643

644

645

lawful private companies, which seems therefore to prima facie leave out their possibility to work for armed opposition groups, national liberation movements or such contested non-state entities. See IPOA Code of Conduct, para. 4.2. In the same vein, the draft Global Code of Conduct expressly species that [c]ompanies will not enter into contracts that conict with applicable criminal law or relevant local, regional or international human rights standards. See also the BAPSC Charter, para. 5. See Ch. 4 above. See e.g. M. Monshipouri, C. E. Welch and E. T. Kennedy, Multinational Corporations and the Ethics of Global Responsibility in R. P. Claude and B. H. Weston (eds.), Human Rights in the World Community, 3rd edn (Philadelphia: University of Pennsylvania Press, 2006), pp. 4401; D. Threr and M. MacLaren, Military Outsourcing as a Case Study in the Accountability and Responsibility of Power in A. Reinisch and U. Kriebaum (eds.), The Law of International Relations: Liber Amicorum Hanspeter Neuhold (Utrecht: eleven, 2007), pp. 391413, 399; McLeay, Corporate Codes of Conduct, p. 223; Mazuyer, LAutorgulation des entreprises par les codes de conduites, pp. 203 ff.; Voiculescu, Privatizing Human Rights?, p. 193; Murphy, Multinational Corporate Codes of Conduct, p. 401. See Standards Compliance and Oversight Procedure at Section 1 concerning the Jurisdiction of the Standards Committee and Section 2 on the Receipt of the Complaint. The text of the Standards Compliance is on le with the authors. Different panels decide respectively on the admissibility of the complaint (Administrative Panel, Section 3), reviewing facts (Review Panel, Section 4), operations and procedures of the concerned member company (Compliance Panel, Section 5) and undertaking a nal ruling on expulsion of the company if the latter is deemed in noncompliance with the Code (Disciplinary Panel, Section 6).

670 responsibility for violations of international law

appears to be the most stringent sanction available to PMSC associations. The PASA646 and to a certain extent the BAPSC647 follow the same pattern. The questionable effectiveness of such mechanisms (which is supposed to work in tandem with the alleged benets of club membership) however, has been illustrated starkly by the reaction of the IPOA to the killing of seventeen civilians in Baghdad by contractors working for Blackwater, a then-prominent member of that association. Not only was Blackwater not formally expelled from the IPOA (it withdrew) the company has continued to be awarded multi-billion-dollar contracts by the US government.648 This calls into question the necessity and benets of IPOA membership and, by extension, casts serious doubt over the real power of such associations to regulate the industry in any meaningful way.649 As one of the most thorough studies of PMSC industry associations points out, although states may and sometimes do delegate regulatory functions to private bodies, they have not done so in the case of the IPOA or the BAPSC.650 Furthermore, although the associations themselves may pledge adherence to national or even international obligations of the state in which they are registered, it is unclear whether they can be held to account purely on the basis of such pledges.651 Others point out that in situations where a state has difculty creating a functioning regulatory scheme for PMSCS, companies may form industry associations in order to represent PMSC interests and monitor the industry and to lobby for regulation and licensing standards (especially where corruption is rife).652 In Afghanistan, international PMSCs have

646

647

648 649

650 652

Section III of the PASA Code of Principles and Code of Conduct mentions briey that: [t]he PASA Board will review any complaints about the conduct of a member company (including where there has been an alleged breach of the law) and issue recommendations. The BAPSC Charter only envisages sanctions without more explanations on its website. See BAPSC Charter, para. 9. Concerning the Sarajevo Code of Conduct, the latter leaves the oversight function to PMSCs themselves or refers back to PMSCs Association enforcement mechanisms where such exist. See the Sarajevo Code of Conduct, para. 2.21. These issues are pointed out in Cockayne et al., Beyond Market Forces, pp. 1412. Ranganathan argues that this is only the case for companies that already enjoy a strong relationship with a large consumer: see Ranganathan, Between Complicity and Irrelevance?, p. 373. 651 Ibid., p. 366. Ibid., pp. 3656 and see Ch. 3, section A 2.4 above. Brooking and Schmeidl, When Nobody Guards the Guards, p. 211.

implementing pmsc responsibility

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formed one association and locals another.653 In Iraq, the PSCAI was set up as a kind of information clearinghouse following the dissolution of the Coalition Provisional Authority.654 While it allegedly has a role in assisting the implementation of relevant standards among PMSCs operating in Iraq, including the law of Iraq and relevant rules on the use of force, its efcacy in this respect is unclear.655 In any case, the PSCAI seems to have no power to sanction its members;656 furthermore, since its primary focus is to help PMSCs prepare their documentation for accreditation by the Iraqi Ministry of the Interior and to assist the US government in the licensing process, its true commitment to regulation is questionable.657 All this is not to say that self-regulation is unwelcome, but it shows that industry self-regulation on its own is insufcient to ensure the implementation of responsibility for violations of IHL and IHRL.

653

654 655 656

657

Ibid. The international group is called the Private Security Company Association of Afghanistan and is reportedly modelled on the PSCAI in Iraq. Cockayne et al., Beyond Market Forces, pp. 1689. Ibid., p. 169. The PSCAI charter is no longer publicly available: Ranganathan, Between Complicity and Irrelevance?, p. 320. Ibid., p. 328.

u General Conclusion

The simple fact that states hire private military and/or security companies (PMSCs) to provide support to their armed forces in the eld is nothing new. The rules of international humanitarian law (IHL) that were codied more than one hundred years ago even set out a status and protection for such individuals if they meet certain conditions. The scale and scope of the activities performed by private actors today, however and in particular, the widespread use of private security guards to protect convoys and even some military bases in areas where active hostilities are occurring represent a new phenomenon. Technological change has created another avenue for increased recourse to civilians to programme or operate complex weapons systems. These tendencies and others combined with massive reconstruction efforts during the armed conict as part of an exit strategy, which in turn gives rise to a need for security guards to protect workers and works in progress have drastically altered the factual reality to which the law must apply. In addition, it is imperative to bear in mind that states are not the sole clients of private military and security companies. There is a complex web of IHL that governs all actors in situations of armed conict. The problem is not that PMSCs and their personnel operate in a legal vacuum there is no question that individuals are bound by the rules of IHL. The difculty rather lies in the challenge of ensuring that the legal framework that was originally designed to control the activities of states in armed conicts can effectively control the actions of a wide variety of non-state actors. In this sense, PMSCs are but one manifestation of a general phenomenon. States, the UN and other organizations, and the industry itself are thus putting out feelers to discern the limits to outsourcing in the context of armed conict, as well as exploring avenues for regulation of the industry. In these pages, we have argued that the existing international legal framework already sets a number of black-letter limits and carries implicit limitations on the roles, functions and tasks that may be given to
672

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PMSCs and their personnel. While we have found no overarching rule that prohibits recourse to PMSCs in general, we have identied important restrictions when it comes to the use of force. States may not outsource the capacity to decide to use force against another state to a private actor, which could include operating armed drones to strike individuals on foreign soil. Furthermore, even when PMSCs are used in situations of armed conict, IHL explicitly and implicitly prescribes certain roles and functions only for members of state armed forces. In any case, states must abide by the rules of good faith, both in determining what activities may be outsourced and in their reasons for outsourcing. Whether states contract PMSCs in a way that respects or goes beyond the rules we have identied, their responsibility can be engaged by the actions of PMSCs if they commit violations of international law. In some cases, the conduct of PMSCs will be attributable to states according to the recognized rules on state responsibility. In extremely rare cases, PMSCs may be organs of a state, even if they are not integrated into its armed forces. In other cases, the conduct of PMSCs may constitute an exercise of governmental authority and be imputed to a state on that ground. In this respect, we have argued that direct participation in hostilities and law enforcement are examples of activity that involves an exercise of governmental authority, whereas providing security more generally (usually) does not. We have therefore attempted to clarify situations in which providing security in effect falls into one of those two categories, thereby potentially engaging the responsibility of the state. Finally, although states are increasing the control they exercise over PMSCs in conict areas, due to the nuances of the relevant test in international law, it is unlikely that the simple fact of such control will sufce to make PMSC conduct in violation of a states international obligations attributable to the state solely on that basis. Even when conduct of PMSCs that may violate international law is not attributable to a state per se, a state may nevertheless incur responsibility with regard to a violation if it has not adequately discharged its obligation to exercise due diligence. This obligation in particular widens the scope of responsibility beyond states contracting PMSCs to encompass also states on whose territory PMSCs operate as well as the states in which PMSCs are registered. The obligation to exercise due diligence in and of itself is clear under IHL; the precise contents of the obligation are, however, more difcult to pin down. There may be many things states can do, but we submit that many of the Good Practices outlined in the Montreux Document represent excellent ways for states to meet their due

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diligence obligations. Admittedly, the Montreux Document is nonbinding; however, the rst part reiterates existing obligations accepted by states under international law, and the second part outlines practices that correspond to the sorts of actions that are necessary to meet due diligence obligations, making it a useful guide to evaluate the adequacy of state activity vis--vis PMSCs on many levels. That being said, asserting that states are responsible for violations of their international obligations by PMSCs is one thing; enforcing that responsibility in court or otherwise is another. We have explored the arguments and developments regarding the potential for individuals to invoke state responsibility in court. Just as this work was going to press, in Germany v. Italy the International Court of Justice (ICJ) upheld state immunity as a procedural bar to jurisdiction for individual claims against states, even though it refused to pronounce on the existence of an individual right to reparation for violations of IHL.1 Of course, the judgment leaves open the possibility for states to demand reparation for the actions of PMSCs as part of a package in a peace settlement, for example, but individual victims of violations are left without a direct means to invoke the responsibility of a state for the actions of PMSCs. Consequently, greater effort should be made to encourage states to ensure that they act to avoid or prevent violations, rather than focusing on enforcement after the fact. A unique feature of IHL is that it binds individuals directly, even when they are not members of state armed forces. Thus, even if it is difcult to sustain an argument that private military and security companies are bound by IHL as such, there is no question that the individuals comprising them are bound. Indeed, the Montreux Document afrms that PMSC personnel are obliged, regardless of their status, to comply with applicable international humanitarian law.2 While the Montreux Document has been criticized as being charmingly vague3 with respect to the content of such obligations, this work has attempted to show that such obligations are situation-dependent and can be identied through an examination of the applicable IHL. Indeed, it may have been difcult for the Montreux Document to be more precise without essentially
1

2 3

Jurisdictional Immunities of States (Germany v. Italy: Greece intervening) (Judgment) 3 February 2012. Montreux Document, Part One, point 26(a). Simon Chesterman, Lawyers, Guns, and Money: The Governance of Business Activities in Conict Zones (201011) 11 Chicago J Intl L 32141, 334.

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reproducing the whole of the Geneva Conventions and their Additional Protocols in their entirety, along with customary IHL. In our view, in any case, many of the most important obligations and/or prohibitions under IHL raise no problems specic to PMSCs. For example, it is uncontroversial that PMSC personnel may not rape or kill civilians, engage in torture or other such heinous acts. We therefore have not dwelt on such obligations but have instead focused on those for which it may be less obvious as to what is required to ensure their respect. The lack of detailed discussion of those obligations thus belies their importance. An additional feature of the IHL of international armed conicts is that it assigns a status to everyone it protects (either combatants or civilians) and many rights and obligations under it ow from that status. While status determination must be made on a case-by-case basis for PMSCs, the available facts and evidence lead to the conclusion that by and large, private military and security contractors are civilians under IHL. For PMSCs and for the states that use them, from our perspective, the most signicant consequence of that status is that PMSC personnel may not directly participate in hostilities. This is imperative in order to preserve the principle of distinction, which is central to IHLs ability to protect civilians, the vast majority of whom do not participate in hostilities. The notion that PMSCs must not directly participate in hostilities is reiterated and accepted in the existing regulatory frameworks such as the Montreux Document. These limits coincide with what most of those engaged in the debate already agree, even if a pledge not to directly participate in hostilities is conspicuous in its absence in the International Code of Conduct for Private Security Providers. In our view, the crux of the matter is whether all stakeholders are really talking about the same thing when they afrm or concede that PMSCs will not directly participate in hostilities. Given the tendency of the industry to exploit the right to personal self-defence and its implications in situations of armed conict, we are not convinced that all have the same limitations in mind. We very much hope that the discussion provided here, and in particular that in Chapter 4 above, will help to advance the dialogue and to develop appropriate guidelines enabling maximum respect for IHL. Finally, the fact that individuals are directly bound by the criminalized rules of IHL means that they may bear individual criminal responsibility for violations of the law. While we believe that it is fairly unlikely that an individual PMSC contractor will be tried before the International Criminal Court, the principle of complementarity means that the ways of participating in international crimes could be relevant for national

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prosecutors. Here again, under existing international law, the applicable law and enforcement mechanisms are clearer for individuals than for the companies. One avenue we have identied for asserting the responsibility of the companies themselves is via civil responsibility, although there are a number of potential hurdles to a successful claim. Even so, while the occurrence or potential threat of lawsuits may provide a stick to force PMSCs to scrupulously respect the law, the plethora of self-regulatory efforts in the industry are a testament to the perceived power and importance of reputation and the market to induce good behaviour. The industry may seek to provide ever greater evidence of efforts of self-regulation as good business practice. In our analysis, these efforts are laudable and may go some way to curtailing abuses, but self-regulation is not sufcient as a solution. The way forward is likely to involve a combination of approaches to PMSCs. For the time being, states have three main options. The rst and arguably the most radical is to prohibit PMSCs or certain types of their activities. By virtue of its own sovereignty, each state can proscribe the use of PMSCs registered on its territory or some of their activities carried out on it and from it. For instance, Switzerland is currently examining a legislative proposal for the purpose of banning any involvement of PMSCs in direct participation in hostilities or serious violations of human rights.4 Furthermore, according to the procedure spelled out in the draft law, the Swiss authorities would be empowered to prohibit any activities of PMSCs undertaken in armed conicts or other crisis areas.5 Given the recurring controversies raised by their involvement in armed conicts, this type of prohibition whether general or specic could be the option chosen by other states in the future. Curiously enough, however, few of them seem to be pursuing this path for the moment. The second option is to regulate the use of PMSCs. Specifying the legal regime that applies to them can circumscribe the situations in and roles for which states may use them or permit their use. This can be pursued in three different ways: through a treaty (in particular by negotiating a UN
4

See Arts. 6 and 7 of the draft Loi fdrale sur les prestations de scurits prives fournies ltranger, as amended in November 2011, www.ejpd.admin.ch/content/dam/data/sicherheit/gesetzgebung/sicherheitsrmen/vorentw-f.pdf. According to Art. 2, the draft legislation is applicable, inter alia, to both natural and legal persons who provide security services abroad from Switzerland or who establish, manage, run or control a company in Switzerland that provides such security services or that furnishes services in relation to security services. Ibid., Art. 12.

general conclusion

677

convention); through a soft-law instrument (in enlarging the number of signatory states to the Montreux Document or developing a new and more comprehensive instrument); or through domestic law enactments for the purpose of enhancing and rening their own regulatory frameworks. The third option available to states is simply to remain passive, thereby maintaining the status quo. On the one hand, a lack of action could be understood as a failure to respond to the long-standing concerns raised by these non-state actors. On the other hand, the status quo remains a possibility given the force of inertia inherent in an international law primarily created by states. Even in that case, this book makes abundantly clear that PMSCs operate in an environment governed by law, even if mechanisms of oversight and enforcement still warrant development and reinforcement. A substantial number of existing rules of international law is applicable to them and their personnel, who are bound to respect them in good faith and with due regard to their object and purpose. Whatever the option eventually chosen by states, it cannot be used as a means to weaken or circumvent well-established norms of international law. If, on the other hand, the principal effect of regulatory efforts is to better implement international humanitarian law and international human rights law, then such efforts can only be welcomed. The bottom line is that no actor in armed conicts, whether state or non-state, is beyond the reach of the law that protects people in war.

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INDEX

Note: documents are given in italics.

acts de jure imperii 17882, 188 acts of war 562 POWs 87 Additional Protocol I to the Geneva Conventions Article 43 142, 40812, 615 Article 47 82, 4269 Article 48 102 Article 50 424 Article 83(1) 365 Article 86 615 Article 87 615 Article 91 1614, 5479, 556, 558 IHL dissemination 365 Afghanistan, regulation of PMSCs 580 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa 3256 aggression, denition by General Assembly 11, 77 aiding and abetting 6017, 6447 Alien Tort Statute (ATS) 3413, 62938, 643, 656 Angola 154 armed conict arrest and capture 51224 elements of governmental authority 2012 identifying applicable rules of law enforcement for PMSCs 48992 IHL law enforcement rules for PMSCs 496 IHRL enforcement rules for PMSCs 4959 the rules of law enforcement for PMSCs 489524 use of force and rearms in law enforcement 499512 armed conicts international see international armed conicts non-international see noninternational armed conicts armed forces activities reserved for 91110 IHL obligations 31316 special state responsibility 1614 Armed Forces Act 2006 625 armed groups, non-international armed conicts 41417 armed protection, humanitarian relief organizations 536 arrest and capture, law enforcement in armed conicts 51224 Articles on State Responsibility see ASR, PMSCs ASR Article 1: violations of international law 555 Article 4: attribution to states of acts of PMSCs 13665, 1534, 15865; scope of state responsibility 15865 state organs 1446, 1578 Article 5: attribution to states of acts of PMSCs 165204; elements of governmental authority 172204; PMSCs as entities 1667 Article 7: scope of state responsibility 15865 Article 8: attribution to states of acts of PMSCs 20423; control 21020; de facto organs 1446, 1523,

708

index
20423; direction 20910; instructions 2059 Article 32: reparation rights 555 Article 42: violations of international law 5402 attacks disproportionate 4712 threshold of harm test 43945 unlawful see unlawful attacks attribution to states of PMSC acts 136223, 30713 Australia, customary IHL 382 Austria, customary IHL 380 bad faith see good faith Basic Principles on the Use of Force and Firearms by Law Enforcement Ofcials 4989, 504, 51112, 519 Belgium, customary IHL 382 belligerent nexus, test for a specic act 4502, 4714, 476, 4801, 532 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment 121 British Association of Private Security Companies (BAPSC) 667, 670 Canada, customary IHL 382 Capstone Doctrine 256 chain of command, PMSCs 937, 1002 Chinese law, self-defence 481 civilians direct participation in hostilities 43155 during conduct of hostilities 1025, 3867 superior responsibility under Rome Statute 61920 civil litigation, jurisdiction re international law violations abroad 64861 civil responsibility, PMSC violations of international law 62762 codes of conduct PMSCs 3359 PMSC self-regulation 555 colour-of-law doctrine 6401

709

combatant denition 387 IHL obligations 31316 international armed conicts 388412 unlawful 4236 combatant status non-international armed conicts 41218 PMSCs and their personnel 386418 use of force 278 combatant status criteria 392408 carrying arms openly 4045 command and disciplinary structure 4012 conducting operations in accordance with IHL 4056 xed distinctive sign 4024 subject to control of state party 393401 command responsibility ICC Statute 61718 PMSC violations of international law 61323 complicity, international criminal test 6446 contracting states, prosecution of individuals 6245 contracts, internationalized 2978 contracts between state and PMSCs 13842, 1502, 169, 215, 219, 269 choice of law and forum clauses 648 contras forces acts attributable to USA 21213 organs of state test 1456 control criterion for attribution to states 21719, 2245 Convention of the OAU for the Elimination of Mercenarism in Africa 6671 Convention for the Protection of All Persons from Enforced Disappearance 514 corporate complicity direct 3256 doctrine of 32335 indirect 3289 international crimes 3305 silent 32930

710

index
duty to regulate and safeguard human rights 2516 Geneva Conventions and Additional Protocols 24051, 2835 Hague Regulations Article 43 236, 23740 in human rights law 2306 intervention prior to human rights violation 2569 investigation of human rights violations 25962 in law of neutrality 22830 repression of human rights violations 25962 of state acting extraterritorially 2316 see also PMSCs; state obligations ECHR elements of governmental authority 1859 views of ECtHR on violations 2523 ECJ, elements of governmental authority 1879 ECtHR deprivation of right to life 5068 extraterritorial application of IHRL 2335 predictability of human rights violation 257 violations of ECHR 2523 elements of governmental authority 172204 armed conict 2012 Article 5 ASR 172204 Article 6(1) ECHR 1859 ECJ 1879 French internal law 1902, 1989 GATS 1824 humanitarian relief 2034 ILC 1738, 199 international and domestic law 178204 law of state immunity 17882, 199 PMSCs empowerment to exercise 16771 security 1957, 2023 USA 1927

corporate international criminal responsibility 58397 in national jurisdictions 5957 corporations, multinational see multinational companies criminal responsibility corporate see corporate international criminal responsibility individual see individual international criminal responsibility customary law international personality 3015 principle of superior responsibility 616 delegation by state to private actor 1316 by UN Security Council of conduct of peace operation 2931 detention and policing delegation, IHRL 11825 diplomacy, prior to self-defence operation 16 direct causation, test for a specic act 44550 direct participation in hostilities beginning and end 442 consequences for PMSCs 4326 constitutive elements 43852 governmental authority 673 domestic criminal law, PMSC violations of international law 582 Draft International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies 3001 drone operators 1516 due diligence from primary rules of international law 226 sources relevant for PMSC activities 22851 due diligence obligations 22587 dened by ICJ 238, 240

index
WTO law 1825, 1989 evaluation by private actor conform to international law 1315 European Convention on Human Rights see ECHR European Court of Human Rights see ECtHR European Court of Justice see ECJ FAIR Act (1998) 1934 Fay Report 154 misconduct of translators 275 Federal Republic of Yugoslavia (FRY), organs of state test 1456, 222 ghters denition 388 non-international armed conicts 41417 force, use of see use of force forum non conveniens doctrine 6503 France customary IHL 381 elements of governmental authority 1902 GATS, elements of governmental authority 1824 Geneva Convention I, IHL and civilians 354 Geneva Convention III combatant status of PMSCs 38993 POW camp administration 837 POW status 812, 86, 104, 392408, 41921 a self-executing treaty 36971 states responsibility for POWs 11013 Geneva Convention IV internment camps 84 internment of civilians 107 private police 1089 protected persons 4212, 4245 recruitment to serve in armed or auxiliary forces 52930 state responsibility for civilians 11013 state responsibility for employees 135

711

Geneva Conventions and Additional Protocols absolute prohibitions re treatment of persons 5278 common Article 1 24451, 348 due diligence obligations 24051, 2835 POWs conditions to comply with IHL 527 repression of grave breaches 3558, 476 rights conferred on individuals 5534 self-executing treaties 36776 see also Additional Protocol I to the Geneva Conventions Germany, customary IHL 380 good faith in international law 1269 PMSCs 1303 governmental authority, elements of see elements of governmental authority grave breaches regime 3558, 476 Hague Convention IV, right to reparation under IHL 5479, 550, 556 Hague Convention on Neutrality in Land Warfare 77 Hague Conventions (1907), rights and duties of neutral states 2289 Hague Regulations Article 43 108, 236, 23740 Article 52 8891, 548 Article 53 548 due diligence obligations 236, 23740 Hammarskjold, Dag 21 hostilities conduct of 91107 denition in ICRCs Interpretive Guidance 436 direct participation in 1045, 43155, 5323, 673 specic acts 43752 host-state consent composition of peacekeeping force 223

712

index
good faith 127 instigation criterion for attribution 2213 international personality 2923, 2945 intervention prior to violation 2567 reparation 555 self-defence 13 state immunity before courts of another state 5601 test for entities to be state organs 1436 ICRC civilians participating in hostilities 3957 command responsibility 616 customary rules of IHL 378 dissemination of IHL 364 ghters and armed groups 41417 Interpretive Guidance on the Notion of Direct Participation in Hostilities 432, 435, 43655 principle of distinction in noninternational armed conict 4223 visiting places of detention 5234 ICTR 361, 601, 604 civilian employer superiors 6213 ICTY aiding and abetting 601, 603 control criterion for attribution 21719, 225 war crimes 35961 IHL binding on PMSCs 31316 conduct of hostilities 923 criminalization of serious violations 255, 35463 customary 37682 direct applicability to individuals 36682 dissemination 3636 explained 801, 923 inter-state law with individuals as addressees 35166 intervention prior to violation 2569 legal means of binding PMSCs 288382 military advantage 93102

host-state consent (cont.) peace operation 213 human rights criminalization of serious violations 255 intervention prior to violation 2569 investigation of violations 25962 monitoring bodies 2535, 2779, 5456, 566, 5679 predictability of violation 257 repression of violations 25962 state duty to regulate and safeguard 2516 states of incorporation of PMSCs 2825 territorial states 2802 see also IHRL; PMSCs; state obligations Human Rights Committee activities of PMSCs 5456 arbitrary detention 515, 517 privatized prisons 124 human rights law see IHRL human shields 481 humanitarian relief elements of governmental authority 2034 PMSCs 536, 2034, 5347 IACtHR deprivation of right to life 5089 duty to safeguard human rights 2512 jurisdiction issues 5689 lack of due diligence 231, 233 state organs 147 ICC, lack of jurisdiction over legal persons 5905 ICC Statute command responsibility 61718 competence to deal with international crimes 598 JCE 61011, 613 ICJ control criterion for attribution 21719, 2245 due diligence obligations 238, 240 erga omnes obligations in IHL 542

index
non-criminalized provisions 3623 non-hiring of persons likely to violate IHL 2734 no unlawful combatants category 4236 POWs standards and conditions 5247 principle of effectiveness 3534 prohibitions re treatment of persons protected by Geneva Conventions and Protocols 5278 reparation rights 54670 repression of violations by individuals 35463 respect for under Geneva Conventions common Article 1 24451 rules on responsibility of states 11013 self-defence 46184 states of incorporation of PMSCs 2825 status of PMSC personnel 385431 territorial states 2802 see also PMSCs; state obligations IHL and IHRL, protecting same rights 5667 IHRL administration of justice 1256 application of 11314 delegation of policing and detention 11825 due diligence obligations 2306 PMSCs 31623 tripartite typology of obligations 31623 see also human rights ILAs Committee on Reparation for Victims of Armed Conict 5578, 671 ILC Articles on State Responsibility (ASR) 135 denition of entity 1667 elements of governmental authority 1738, 199 impartiality peacekeeping force 21, 235

713

PMSCs 245 individual international criminal responsibility, PMSCs 597623 instigation criterion for attribution to states 2213, 225 Inter-American Court of Human Rights see IACtHR international armed conicts, combatants 388412 International Code of Conduct for Private Security Providers 6625 International Convention against the Recruitment, Use, Financing and Training of Mercenaries (1989) 6671 International Court of Justice see ICJ International Covenant on Civil and Political Rights 2313 arbitrary detention 51214 international criminal responsibility, PMSC violations of international law 582627 international humanitarian law see IHL international human rights law see IHRL international law dening state organs 14258 good faith 1269 PMSCs as subjects of 288, 289305 International Law Commission see ILC international organizations, delegation of powers by state 2634 international personality 28993 customary law 3015 internationalized contracts 2978 multinational companies 293305 PMSCs 2956 treaties 298301 international responsibility of states, PMSCs 134204 International Stability Operations Association (IPOA) 66970 internment camps administration 847 PMSCs 857 Interpretive Guidance on the Notion of Direct Participation in Hostilities 432, 435, 43655, 4823

714
Iranian oil platforms attack 16 Israel, customary IHL 382 Italy, customary IHL 381

index
denition 68, 746, 4267 international regulatory conventions 5734 non-international armed conicts 429 PMSCs 701, 7880 prohibition from using 6680 treaty law 6671 UN Security Council 78 military advantage, IHL 93102 Military Extraterritorial Jurisdiction Act (MEJA) 624 military operations see hostilities mine clearance 442 Montreux Document due diligence obligations of states 2667, 581 hierarchical superiors 620 international personality 304 overseeing proper execution of contract 276 PMSCs and serious crime 268 regulation of PMSCs 5745 reparations for IHL violations 558 training of PMSCs in IHL and human rights 272 use of PMSCs 85, 113, 138, 214, 24951, 255 multinational companies international personality 293305 role of soft law 305 national law, dening state organs 13742 national legal systems, prosecutions for PMSC violations of international law 6236 Netherlands, customary IHL 382 neutrality law, due diligence obligations 22830 non-international armed conicts combatant status 41218 ghters and armed groups 41417 PMSCs as non-participants 4223 non-justiciable issues, violations of international law 6539 non-lethal means of force 50910

JCE common intentional purpose 6078 foreseeable criminal consequence duly accepted 60912 institutionalized common criminal plan 6089 joint criminal enterprise doctrine see JCE judicial decision-making, PMSCs 1078 jurisdiction ICCs lack of over legal persons 5905 IHL and IHRL victims lodging successful claims 569 lack of international over corporations 583, 590 jurisdiction in civil litigation re international law violations abroad 64861 forum non conveniens 6503 immunities 656 non-justiciable issues 6539 personal 64850 political-question doctrine 6539 jurisprudence, Second World War 58490 jus ad bellum 1080 jus in bello 80113 law enforcement in armed conicts arrest and capture 51224 identifying rules applicable to PMSCs 48992 rules of IHL applicable to PMSCs 496 rules of IHRL applicable to PMSCs 4959 use of force and rearms 499512 use of PMSCs as governmental authority 673 life, deprivation of 504 mercenaries customary law 7280

index
non-state actors PMSCs 289313 use of force 335, 120 Nuremberg Charter of the International Military Tribunal 585 Nuremberg Industrialists cases 58490 OECD Guidelines for Multinational Enterprises 3013 operations see hostilities outsourcing nancial offset 391 justice administration 1256, 133 restrictions 6723 to PMSCs by international organizations 1819; by state 1617; for POW and internment camps 857; by US 98101 Pan-African Security Association (PASA) 667, 670 peacekeepers, status of 27 peacekeeping general principles 217 regional organizations 502 peacekeeping forces impartiality 21, 235 rules establishing 2848 standing forces at UNSCs disposal 426 perdy 471 PMSCs, see also PMSCs and their personnel; PMSC violations of international law agreements with other parties to a conict 10910 as armed groups 31416 Article 4 ASR attribution 13665, 2234 Article 5 ASR attribution 165204, 224 Article 8 ASR attribution 20423, 224 ASR other Articles attribution 223 attribution and regime of state responsibility 3078 cases of conduct attributed to states 1345, 164 chain of command 937, 1002

715
civilians accompanying armed forces 1567 civilian status during conduct of hostilities 1025 conduct of hostilities 91107 contracts with clients 34750 contracts with states 2646 contracts with states to become state organs 13842, 1502, 169, 215, 219, 269 corporate codes of conduct 3359 created by the state 14954 customary IHL 37682 as de jure state organs 13658 direct participation in hostilities 1045, 43155 discipline 489 dissemination of IHL to 366 doctrine of corporate complicity 32335 domestic law regulation 33950 Draft International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies 3001 due diligence obligations of state acting extraterritorially 2356 empowered to exercise elements of governmental authority 16771, 175, 2034 as entities according to Article 5 ASR 1667 as entities empowered by internal law 16671 good faith 1303 human rights monitoring bodies 2535, 2779 humanitarian organizations 536 humanitarian relief 2034, 5347 ICJ jurisprudence re state responsibility 1436 IHL 113, 31316 IHL due diligence obligations 24951, 258, 266, 2779 IHRL 31623 impartiality issues 245 implied limitations on use of 91113

716

index
self-defence operation evaluation 1617 self-regulation of responsibility 66271 serious crime 268, 2779 as sole contribution of UN member state 3842 state control over 21416 state regulation vis--vis human rights 2556, 2779 states bound by international obligations 2623 states of incorporation 2825 Status of Forces Agreements 4950 as subjects of international law 288, 289305 as subsidiary organs 468 as sum of their individual employees 35082 territorial states 2802 training in IHL and human rights 272 treaty-based limitations on use of 8291 USAs inherently governmental activities 1927 USAs inherently governmental security functions 1957 warships 645 PMSCs and their personnel see also PMSCs; PMSC violations of international law aid provision 5307 applicable legal rules 383538 arrest and capture during armed conict 51724 carrying arms openly 4045 civil responsibility as accomplices of international law violations 643 as civilians accompanying armed forces 41821 as civilians in international armed conicts 4212, 425 combatant or ghter status 386418 combatants under Geneva Convention III 38993 command and disciplinary structure 4012

PMSCs, (cont.) importing and exporting regulatory frameworks 57582 International Code of Conduct for Private Security Providers 6625 international personality 2956 international responsibility of states 134204 internationalized contracts 298 investigation of IHL and human rights violations 25962, 2779 judicial decision-making 1078 legal means through which bound by IHL 288382 licensing or registration 3437 mercenaries 701, 7880 monitoring by contracting ofcers 276, 2779 neutral states due diligence obligations 22830 non-hiring due to likely violations of IHL 2734 as non-state actors 289313 objections by host state 23 occupying powers due diligence obligations 23940 outside formal state structure 17 outsourcing by international organizations 1819 outsourcing by state 1617 outsourcing by US 98101 peace force establishment rules 2848 peace force legal problems 4850 peacekeeping by regional organizations 502 pirates 63 POW and internment camps 857 privateering 5665 protection of rights as for state organs 2637 repression of violations of IHL and human rights 25962, 26679 reputation for excessive force 267 requisitions 8891 rescission of contract due to IHL violations 2746, 2779 respect for IHL and human rights law 2679, 2779

index
conducting operations in accordance with IHL 4056 direct participation in hostilities 1045, 43155 establishing civil responsibility 63148 xed distinctive sign 4024 humanitarian aid providers 5347 identifying law enforcement rules in armed conicts 48992 IHL enforcement rules in armed conicts 496 IHL status 385431 IHRL enforcement rules in armed conicts 4959 individual international criminal responsibility 597623 liability as corporations for international law violations 6339 liability as private agents for international law violations 6319 liability as state agents for international law violations 639 non-participants: non-international armed conicts 4223 POWs conditions to comply with IHL 5247 POW status 392408 prohibition of arbitrary life deprivation in armed conict 504 prohibitions re treatment of GC protected persons 5278 recruitment to serve in armed or auxiliary forces 52930 reporting requirement re violations of international law 6635 rules of law enforcement in armed conicts 489524 self-defence scenarios 4849 specic acts in hostilities 43852 subject to control of state party 393401 use of force in armed conict 3835 use of force in self-defence 45589 PMSC violations of international law see also PMSCs; PMSCs and their personnel civil litigation jurisdiction 64861

717
civil responsibility 62762 command responsibility 61323 crimes in concert or joint criminal enterprise 60713 criminal responsibility in national jurisdictions 5967 domestic criminal law 582 draft UN Convention on PMSCs 572 employee as instigator of international crime 599601 employee as perpetrator of crime 599 employees who aid or abet commission of unlawful act 6017 ex gratia compensation 5645 forum non conveniens doctrine 653 human rights monitoring bodies 5456, 566, 5679 IHL reparation rights for individuals 5538 immunities from civil claims 65961 implementation of responsibility 539671 implementation of right to reparation 56670 individual criminal responsibility 597623 international criminal responsibility 582627 international regulation 5715 inter-state claims 5404 invoking state responsibility 5402 legal action of individuals against state 54670 legal responsibility of PMSCs 570 monitoring bodies 5456, 566, 5679 national regulatory frameworks 57582 non-justiciable issues 6569 Nuremberg industrialists cases 590 political-question doctrine 6569 prosecuting individuals in national legal systems 6236 regulation through Montreux Document 5745 reparation under IHL 54665 reporting requirement 6635 self-regulation of responsibility 555 state responsibility 53970

718

index
Rome Conference (1998) 5904 Rome Statute (2002) 5904, 598604 civilian superior responsibility 61920 Rwanda, Statute of the International Criminal Tribunal for Rwanda 361 St Petersburg Declaration of 1868, preamble 92 Sarajevo Client Guidelines for the Procurement of Private Security Companies 667 scenarios, self-defence for PMSC personnel 4849 Second World War jurisprudence 58490 security elements of governmental authority 1957, 2023 inherently governmental functions in USA 1957 self-defence 1216, 17, 257 attack must have been unlawful 46476 Chinese law 481 domestic criminal law and IHL 46184 duty to retreat 47881 evaluation by PMSC 1617 human rights approach 46184 imminence of threat 4778 legal concepts 45761 proportionality of use of force 4814 scenarios for PMSC personnel 4849 of self, others, property 4624 three conditions for individuals 461 use of force by PMSC personnel 45589 use of force must be necessary 47681 use of mercenaries 77 self-executing norms of IHL 551, 554 treaties 36776 self-regulation of PMSCs responsibility 66271 service public and puissance publique 190

policing and detention delegation, IHRL 11825 political question doctrine, violations of international law 6539 Portugal, customary IHL 380 POW camps administration 837 PMSCs 857 POW, IHL standards and conditions 5247 POW status, Geneva Convention III 812, 86, 104, 41921 principle of distinction 1025, 4223, 4356 of effectiveness 3534 of necessity 93102 of proportionality 93102, 4814 prisoners of war see POW prisons, privatized 11618 private security, Italian law 1212 Private Security Company Association for Iraq (PSCAI) 666 private security industry, description 11418 privateer, denition 567, 69 privateering practice 5762, 634 prohibition of 5665 prosecution, immunity from 4345 protection from attack, loss of 4323, 446 public order and safety, PMSCs 1089 Quebec, forum non conveniens doctrine 6512 regional organizations, peacekeeping 502 reparation rights of individuals in international law 54665 waiving rights in favour of ex gratia compensation 5645 Republika Srpska 632 ICJ 145 requisitions 8891, 548 kinds of property 8991 retreat, a duty in self-defence 47881

index
Sierra Leone 155 South Africa, regulation of PMSCs 5778 sovereignty of states 14 specic acts, criteria to be met 43752 state control, under Article 8 ASR 21020 state immunity acts of armed forces on foreign territory 55962 the tort exception 558 state immunity law, elements of governmental authority 17882, 199 state obligations contracts with PMSCs that respect IHL and IHRL 2679 intervention prior to violations 2569 investigation of IHL violations 25962, 2779 lack of due diligence 22587 monitoring of contracts with PMSCs 276, 2779 non-hiring of likely perpetrators of IHL 2734 protection of rights of PMSCs 2637 regulation and safeguarding of human rights 2516, 2779 repression of IHL violations 25962, 2779, 363 states of incorporation of PMSCs 2825 stopping IHL and IHRL violations 2746, 2779 territorial states 2802 use of PMSCs 2623, 2779 state organs 13658 contracts between PMSCs and states 13842, 1502, 169, 215, 219, 269 dened by international law 14258 dened by national law 13742 IACtHR 147 PMSCs 13658 test 1456, 14958 state responsibility acting with appearance of public authority 15860

719

armed forces 1614 de facto subordination to state 216 groups belonging to party to conict 3945 PMSC violations of international law 53970 states attribution of acts of PMSCs 136223, 30713 delegation of powers to international organizations 2634 international responsibility vis--vis PMSCs 134204 Status of Forces Agreements 4950 subsidiary organs, PMSCs 468 territorial states PMSCs 2802 prosecuting individuals 623 threshold of harm, test for a specic act 43945 tort claims 6278 principles 6445 tort exception 558 torture, prevention of 5234 treaties international personality 298301 self-executing 36776 UK forum non conveniens doctrine 6523 regulation of PMSCs 5778 UK Department of Foreign Affairs and International Development 3912 UK Ministry of Defence 3912 UN, composition of peacekeeping force 223 UN Charter Article 2(4) 10 Article 2(7) 21 Article 29 39, 45 Article 42 43 Article 43 426 Article 48 35 Article 51 1213 Article 53(1) 301

720

index
means and methods of attackers 4704 self-defence modied by IHL 4679 use of force in self-defence 46476 US customary IHL 382 elements of governmental authority 1927 inherently governmental security functions 1957 outsourcing to PMSCs 98101 US courts, non-justiciable issues 6539 use of force combatant status 278 degrees of UN control 368 law enforcement in armed conicts 499512 lawfulness 13, 26 non-lethal means 50910 non-state actors 335 PMSCs and their personnel in armed conict 3835 scenarios for PMSC personnel 4849 self-defence by PMSC personnel 45589 self-defence due to imminence of threat 4778 self-defence general 257 self-defence necessity 45589 self-defence proportionality 4814 US federal courts, civil right infringed by a state action 63940 war claims commissions 551 war crimes 35862, 596, 632, 6556 war effort 445 warfare see hostilities warships 63, 645 weapons, indiscriminate or unlawful 4734 Westphalian system 14 WTO law, elements of governmental authority 1825, 1989

UN Charter (cont.) Article 97 44 Chapter VII 12, 17, 2845, 80 non-state actors 335 prohibition of use of force 1014, 33 UN Code of Conduct for Law Enforcement Ofcials 4978, 504 UN control over specic uses of force 368 UN Convention on the Law of the Sea (UNCLOS) 299 UN Draft Convention on PMSCs 572 UN Global Compact, corporate complicity 325 UN peace operations 1953 UN resolutions, legal value assessment 724 UN Secretary-General, delegation from UN Security Council re peace force 3942 UN Security Council authorizing use of force 12, 1718 delegation to UN Secretary-General re peace force 3942 explicit power to delegate peace operations 2931 implied power to delegate peace operations 305 mercenaries 78 specic rules on delegation peace operations 358 standing forces at its disposal 426 uniforms, worn by PMSC personnel 148, 154, 4024 Universal Declaration of Human Rights (1948) 31718 unlawful attacks analysis of concept 4746 on civilians 4667 identity of attackers 46970 indiscriminate or unlawful weapons 4734