Frank Arnim Heemann
(HMNFRA003)
Master of Laws (LLM)
‘International Law’
PRIVATISING THE MILITARY USE OF FORCE:
RESPONSIBILITIES OF STATES AND INTERNATIONAL
ORGANISATIONS UNDER INTERNATIONAL LAW
Supervisor: Ms Cathy Powell
Research dissertation presented for the approval of Senate in fulfilment of part of the
requirements for the Master of Laws in approved courses and a minor dissertation. The other
part of the requirement for this qualification was the completion of a programme of courses.
I hereby declare that I have read and understood the regulations governing the submission of
Master of Laws dissertations, including those relating to length and plagiarism, as contained
in the rules of this University, and that this dissertation conforms to those regulations.
13 September 2006
TABLE OF CONTENTS
I.
INTRODUCTION................................................................................................. 3
II. THE PMC INDUSTRY......................................................................................... 8
1.
Introduction......................................................................................................... 8
2.
Categorisation of the industry............................................................................ 10
(a)
Military provider firms .............................................................................. 11
(b)
Military consulting firms ........................................................................... 12
(c)
Military support firms................................................................................ 13
3.
The impact of the industry................................................................................. 14
(a)
The quantitative impact ............................................................................. 14
(b)
The qualitative impact ............................................................................... 16
4.
Are PMCs and/or their employees mercenaries?................................................ 19
(a)
PMCs and their employees are not effectively covered by existing
international anti-mercenary laws.......................................................................... 20
(b)
PMCs differ significantly from traditional mercenaries.............................. 25
(c)
Summary ................................................................................................... 26
III. STATE RESPONSIBILITY ............................................................................... 27
1.
General rules of state responsibility ................................................................... 27
2.
Categorisation of states...................................................................................... 28
3.
Breach of international obligation...................................................................... 29
(a)
Law on the recourse of force (jus ad bellum) ............................................. 29
(i)
The prohibition on the use of force ........................................................... 29
(ii)
The principle of non-intervention.............................................................. 32
(b)
Laws of neutrality...................................................................................... 34
(c)
International humanitarian law (jus in bello).............................................. 36
(i)
Introduction............................................................................................... 36
(ii)
Obligations of the occupying power........................................................... 44
(iii)
Obligations in connection with prisoners of war ........................................ 45
(iv)
Obligations in connection with the principle of distinction......................... 45
(d)
Other obligations ....................................................................................... 46
(i)
International humanitarian law................................................................... 46
(ii)
International human rights law.................................................................. 46
(ii)
Arms restriction and arms embargos ......................................................... 46
(iii) Principle of permanent sovereignty over natural resources ........................ 47
(iv) Mercenary laws ........................................................................................ 47
4.
Where PMC conduct is attributable to a state..................................................... 48
(a)
Introduction............................................................................................... 48
(b)
Article 4 DASR ‘state organ’..................................................................... 49
(c)
Article 5 DASR ‘authorized by the law … to exercise governmental
authority’ .............................................................................................................. 53
5.
6.
(d)
Article 6 DASR ‘organ placed at the disposal of a State by another State’ . 56
(e)
Article 8 DASR ‘instruction or direction and control’ ................................ 57
(f)
Conduct ultra vires .................................................................................... 66
Where PMC conduct is not attributable to a state............................................... 68
(a)
Introduction to the concept of due diligence............................................... 68
(b)
Due diligence and international human rights law...................................... 71
(c)
Due diligence and international humanitarian law...................................... 79
Preliminary summary ........................................................................................ 81
IV. INTERNATIONAL ORGANISATIONS’ RESPONSIBILITY ........................ 84
1.
Introduction: international organisations and their present and potential future
use of PMCs ............................................................................................................. 84
2.
Preliminary remarks on the responsibility of international organisations for the
commission of international delicts ........................................................................... 85
3.
General rules of international organisation’s responsibility................................ 89
4.
Breach of international obligation...................................................................... 90
(a)
The capacity to bear international obligations: are international
organisations vested with objective legal personality? ........................................... 91
(b)
Conduct ultra vires the competences of the international organisation ....... 96
(c)
International humanitarian law................................................................. 101
(i)
The applicability ratione personae........................................................... 101
(ii)
Applicability ratione materiae in situations of armed conflict................. 105
5.
Where the PMC conduct is attributable to the international organisation.......... 109
6.
Where the PMC conduct is not attributable to the international organisation.... 111
2
7.
V.
Preliminary summary ...................................................................................... 112
CONCLUSION ................................................................................................. 112
1.
Responsibility of states.................................................................................... 112
2.
Responsibility of international organisations ................................................... 117
APPENDIX I – ABBREVIATIONS......................................................................... 119
APPENDIX II – FURTHER INFORMATION ON PMCS..................................... 121
I.
Military provider firms .................................................................................... 121
1.
Executive Outcomes.................................................................................... 121
2.
Sandline ...................................................................................................... 123
3.
Blackwater USA.......................................................................................... 124
II.
Military consultant firms ................................................................................. 124
1.
Military Professional Resources Incorporated (MPRI)................................. 124
2.
Vinnell ........................................................................................................ 125
3.
DynCorp International, LLC........................................................................ 126
III. Military support firms ..................................................................................... 126
1.
KBR (formerly BRS)................................................................................... 126
2.
Ronco.......................................................................................................... 126
IV. The contracting officer in the US Forces ......................................................... 126
BIBLIOGRAPHY..................................................................................................... 128
I.
INTRODUCTION
This paper will explore responsibilities that might arise under international law from the
privatisation of the military use of force.
In the course of the three centuries preceding the end of the Cold War, the use of
military force had become a monopoly of nation states.1 Since the end of the Cold War,
however, a trend can be observed towards the increased privatisation of military services
both on the demand and the supply side of the use of force.2 One of the main reasons for
1
Cf M Sapone (1999) ‘Have rifle with scope, will travel: the global economy of mercenary violence’ 30
Cal W Int’l L J 1, at p 10. PW Singer Corporate Warriors: The rise of the privatised military industry
(Cornell Studies in Security Affairs) 2003 (following: Singer, PMF-study) at pp 7-8.
2
CJ Rosky ‘Force, Inc: the privatisation of punishment, policing, and military force in liberal states’
(2004) 36 Conn L Rev 879, who distinguishes between the supply and demand side of force. On the
demand side one finds those actors which purchase private military services, states, international
3
the ongoing privatisation3 is that internal and external armed conflicts have markedly
increased since the end of the Cold War, in particular due to the power vacuum caused
by the former superpowers’ loss of interest in, and consequent withdrawal from,
formerly strategically important states and regions.4 These emerging conflicts increased
the demand for military services especially in the proxy-states of the former
superpowers. The primary reason for this is that the proxies had lost their former
strategic significance. Due to this decreased importance they experienced a cut-off from
the military support they hitherto enjoyed.5 Moreover, the impressive scale-down of the
standing armies of the Cold War’s opposing blocks lead to a large surplus of military
personnel and equipment.6 Thus, the end of the Cold War caused not only a demand for
military services (and equipment) but provided also the supply in the form of ex-soldiers
(know-how) and material.7
On the demand side, one will find those actors that outsource the military use of
force to private service providers, states, international organizations (IOs), multinational
organisations, multinational corporations, non governmental organisations. On the supply side one finds,
ia, the individual service provider, the ‘gun for hire’ and, increasingly, private corporations specializing in
military services. Cf also: United Kingdom Foreign and Commonwealth Office (2002) ‘Private Military
Companies: options for regulation’ at pp 7-8, para 9, and p 10 para 22, available at
http://www.fco.gov.uk/Files/kfile/mercenaries,0.pdf (visited on 4 September 2005; following: UK Green
Paper). See also: D Avant ‘The rise of the private security companies’ of 13 June 2005, available at
http://www.corpwatch.org/article.php?id=12388 (visited on 14 August 2005).
3
For other reasons see section II.1 below.
4
As per 2003 the number of internal armed conflicts had doubled since the end of the Cold War; Singer,
PMF-study (n 1) at p 50-52 citing various reasons like the ‘implosion of states’, the growing impact of
‘non-state conflict groups’ (eg drug cartels, rebel movements, terrorist organizations), ia, due to the
increased permeability of borders, and the flipside of ‘globalisation’ that leaves billions of people in
poverty and starvation. External armed conflicts, too, have become more frequent than before, Singer ibid
at p 51.
5
Singer, PMF-study (n 1) at pp 49-51. K Friccione ‘Casualties in evolving warfare: impact of private
military firms’ proliferation on the international community’ (2005) 23 Wis Int’l L J 731 at p 747.
6
As per 2003 state militaries had scaled down their troop numbers by approximately 7 million soldiers,
compared to 1989. The US had reduced their standing army by one third from its Cold War peak. Yet, this
general downsizing of state-armies’ not only affected conscript soldiers but also professionals, including
elite-soldiers. Furthermore, it not only pertained to combat troops but also the logistical, the support part
of armies. For instance, the US Army Material Command had been decreased by 60 per cent between the
End of the Cold War and 1999 while, at the same time, the need for rapid deployment had significantly
increased. Facts derived from Singer, PMF-study (n 1) at p 53. See also Vernon (n 6) ‘Battlefield
contractors: facing the tough issues’ (2004) 33 Pub Cont L J 369, at pp 374-376 and Friccione (n 5) at pp
747-748. The easy access to all sorts of weapons for non-state groups after the end of the Cold War
coupled with the decreasing estate of many third world state armies, has been identified as one major
reason for the ‘broader weakening of the state in many parts of the world’, Singer, PMF-study ibid at pp
55-57.
7
The main supply of war material of all sorts, ia from small-arms over tanks and torpedo-boats to modern
attack-helicopters and fighter-planes) came from the sell-out of former Soviet stocks; Singer, PMF-study
(n …) at pp 53-55 with examples and further references. See also Friccione (n 5) at p 748.
4
corporations (MNCs) and non-governmental organisations (NGOs).8 States are, at
present, the most prominent representatives on the demand side; therefore, this paper
will place one focus on the area of state responsibility. However, increasingly IOs are
mentioned in connection with private military services, a development warranting a
closer look at the responsibilities of IOs.9 Certain MNCs and NGOs also rely on private
corporations when it comes to securing their operations in unstable and insecure
environments.10 However, the use of private military services by MNCs and NGOs does
not fully square with the traditional meaning of ‘privatisation’11 and, in addition to that,
the majority of legal experts still hold the view that MNCs and NGOs are not, per se,
subjects of international law, capable of bearing responsibility on the international plane,
unless obligations have been expressly conferred on them by states.12 Therefore, this
paper will deal neither with MNCs nor with NGOs.
As regards the supply of military services, the end of the Cold War contributed to
the surge of private military corporations (PMCs), profit-driven firms that offer military
services necessary for armed conflicts.13 The phenomenon of outsourcing military tasks
8
See UK Green Paper (n 2) at p 10, para 22.
See UK Green Paper (n 2) at pp 19-20, paras 56-60; FA Fountain ‘A call for “mercy-naries”: private
forces for international peacekeeping’ (2005) 13 Mich St J Int’l L 227, 255.PMCs and their lobby
organisations, like the International Peace Operations Organiziation (IPOA), also press for an increased
use of PMCs by IOs like the United Nations. See eg IPOA’s ‘Concept Papers’ for support operations in
Darfur/Sudan and the Democratic Republic of Congo, available at:
http://ipoaonline.org/en/publications/research.htm (visited: 20 July 2006).
10
Avant (n 2); Singer, PMF-study (n 1) at p 46.
11
The use of private military services by private corporations does not fully square with the traditional
meaning of ‘privatization’ of military force, for ‘privatization’ normally refers to the process in which a
public body like a state or IO transfers a public asset or service into private ownership/control. See Collins
Cobuild Essential English dictionary, London 1988.MNCs as private bodies therefore do not ‘privatize’
military services but rather contract them.
12
The orthodox conception of international law regarded only states as ‘subjects’ of international law,
whereas non-state actors like MNCs were viewed as ‘objects’ of international law. ‘[I]nternational law is
made by states and for states’, cf International Council on Human Rights Policy (ICHRP) ‘Beyond
Voluntarism – Human Rights and the developing international legal obligations of companies’ (February
2002), at p 55, available at http://www.ichrp.org (visited: 7 April 2006). Today, however, it is undisputed
that states can confer international legal personality upon non-state actors and vest them with rights and
duties. D Kinley / J Tadaki ‘From talk to walk: the emergence of human rights responsibility for
corporations at international law’, (2004) 44 Va J Int’l L 931 at pp 944 et seq mentioning, inter alia, the
ICJ Reparations for injuries suffered in the service of the United Nations advisory opinion, 1949 ICJ
Report 174, at p 179 in which the court affirmed that ‘states could confer international legal personality on
international organizations such as the UN’, and mentioning also the acquisition of international legal
personality by individuals through ‘the establishment of human rights treaties, …, and the imposition of
international responsibilities for war crimes.’
13
For the purposes of this paper the term PMC will refer to private corporations that are driven by profit
and offer services required for warfare. PW Singer ‘Corporate Warriors: The rise of the Privatized
Military Industry and its ramifications for international security’ (2001/02) 26 Int’l Sec 186, 188-89
(following: Singer, Corporate Warriors) uses the term Private Military Firms (PMF). Other use
9
5
to these private firms significantly impacts on the way wars are planned and waged.14
The prevalence of these firms in recent armed conflicts, eg the 2003 war in Iraq and the
ongoing insurgency there,15 raises questions about the legal implications which the
decision to outsource military force to private corporations might entail. Therefore, this
paper will explore responsibilities of states and IOs that arise in connection with the use
of PMCs.16
The aim of the paper is threefold: first, it explores which responsibilities states
and international organizations incur under international law if they use the services of
PMCs, ie if they privatise the use of military force.17 Second, the paper will use this
survey of responsibilities to address the question whether there are, at present,
substantial gaps in international law that need to be filled in order to deal adequately
with the outsourcing of military force. Third, the paper will then suggest how to deal
with such gaps.
The paper will be structured as follows: the following section, part II, introduces
the private military industry. The focus here will be on a categorization of the industry
and a description of its impact on the common understanding of warfare which assumes
a state-monopoly on the use of force. An understanding of the different categories within
the industry and the industry’s impact on warfare is essential for addressing the legal
question of whether PMCs are sufficiently covered by the existing international laws.
“International Security Company” (SC) or “Military Service Provider” (MSP) to describe the same or
comparable type of organisations. The private sector that offers services to clients as well as clients
themselves frequently prefer to term the services ‘security services’ and the provider firms ‘security
companies’ rather than ‘military services’ and ‘military company’. Obviously, there is a big difference
between a ‘security’ company guarding a depot with foodstuff far away from the frontline, and the
‘military’ company guiding the unmanned drone firing rockets at high-profile targets in the area of
operation. However, it is not the designation of the private company that makes the difference but the
specific task its employees perform during a conflict, as will be seen below. Therefore, this paper will use
the term PMC being aware that others would classify a particular services/conduct as ‘security’ related
rather than ‘military’ related.
14
See part II.3.
15
See PW Singer ‘Warriors for hire in Iraq’ in: Salon The Web of 15 April 2004, available at
http://dir.salon.com/story/news/feature/2004/04/15/warriors/index.html (visited: 22 June 2006; following:
Singer, Warriors for hire)
16
Due to the limited scope of the paper, it will neither deal with the responsibility of individuals, nor with
responsibilities arising from the use of private individuals. Also excluded from the analysis will be the
enforcement of any rights that might be the result of international responsibility. Thus, the paper will focus
on substantive legal responsibilities not procedural rights that might or might not exist for the enforcement
of responsibilities.
17
For the sake of clarity: this paper focuses on military force, thereby excluding ‘policing’ and
‘punishment’, two areas in which western states have also begun to outsource. Cf Rosky (n 2) at pp 891914 for more details regarding the privatisation of punishment, police and military force.
6
Part III deals with the responsibility of states arising from privatising the use of
force; this part will first provide a brief categorization of states that might incur
responsibility18 and then introduce, as a point of departure and mental guideline, the
accepted rule of state responsibility, whereby a state incurs responsibility for the
commission of international wrongful acts.19 For the evaluation of a state
responsibilities, part III will then proceed to introduce states’ international obligations
that are most likely to be violated in connection with the privatisation of the use of
force.20 Against this background, the question will be tackled whether and under which
circumstances PMC conduct can be attributed to states. Afterwards, part III will address
the instances in which PMC conduct cannot be attributed to a state and turn to a state’s
responsibility for its ‘own’ conduct. This part will particularly examine whether and to
what extent a state is under an obligation to prevent its nationals, including corporations,
from harming another state or its nationals. This will lead to an exploration of states’
obligations to exercise due-diligence to prevent private conduct prone to harm foreign
states and nationals.
Part IV sheds light on the international responsibility of IOs. At the outset, it
indicates to what extent IOs already use PMCs or might, in the future, turn to the
services of private corporations for the exercise of military force. After this, a proposal
will be introduced, which is currently under discussion before the International Law
Commission (ILC) in the process of drafting articles on the responsibility of IOs.
Pursuant to the proposed general rule, IOs would incur responsibility for the commission
of internationally wrongful acts.21 Part IV then proceeds to deal with IOs’ international
obligations in the context of the military use of force. The focus will be placed on two
points: first, a particularity of IOs warrants attention, namely the ‘principle of
speciality’,22 or in other words, the limited purposes and functions of IOs.23 Second, the
18
Home State, Host State, Contracting State and other states.
Articles 1 – 3 ILC Draft Articles on State Responsibility (DASR); for further references see below part
III.
20
For instance: Art 2(4) UN Charter (jus ad bellum), international humanitarian law (jus in bello) (IHL),
international human rights law (HRL), Neutrality laws, arms embargos (eg ‘Sandline-Affair’).
21
Article 3 ILC Draft Articles on the Responsibility of International Obligations (DARIO); see below part
III.
22
ICJ Legality of the use by a state of nuclear weapons in armed conflict advisory opinion ICJ Rep 1996,
66, at p 78, para 25: ‘The Court need hardly point out that international organizations are subjects of
international law which do not, unlike States, possess a general competence. International organizations
are governed by the "principle of speciality", that is to say, they are invested by the States which create
19
7
question will be addressed to what extent International Humanitarian Law (IHL) binds
IOs at all. The, the final part of this section address the attribution of PMCs conduct to
IOs and, turning to situations in which conduct might not be attributable, the question
whether and to what extent an IO might incur responsibility for failing to exercise duediligence in the prevention of harming conduct.
The concluding Part V summarizes the major points of concern in international
law and offers suggestions on how to handle these.
II.
THE PMC INDUSTRY
1.
Introduction
The provision of military force by private individuals or groups is not new.24 On the
contrary, the state monopoly on the exercise of military force as is commonly perceived
to be ‘normal’ in modern states is quite a recent phenomenon.25 It was not before the
emergence of the sovereign nation states following the Peace of Westphalia in 1648, and
the introduction of large standing armies in conjunction with the technological
improvement of firearms around the end of the 18th century, that hired private troops
started gradually to vanish from the battlefields,26 until, by the 1960’s, the once
impressive private military market had become reduced to include only individuals
offering their services informally – so called mercenaries or ‘guns for hire’.27 Against
this background, the state monopoly on the use of military force can rightly be termed a
‘historical anomaly’.28
Three major reasons are said to be responsible for the resurgence of the private
military industry and its ongoing boom: First, the end of the Cold War. Second, the
them with powers, the limits of which are a function of the common interests whose promotion those
States entrust to them.’
23
This issue is of relevance since it is disputed whether and to what extent IOs are bound by conduct of
their agents and organs that not only exceeds the internal rules of organization (‘traditional’ ultra vires
conduct) but even exceeds the purposes and functions of the IO. This issue might become relevant, eg in
the case of an IO with strictly humanitarian purposes and functions contracting with an PMC to safeguard
the IO’s delivery of humanitarian aid. If one assumes that the commissioning of military services exceeds
the powers of the IO the question arises whether and to what extent this IO nevertheless bears
responsibility for harm caused by the PMC.
24
For a detailed survey of the history of various kinds of private military actors see Singer, PMF-study (n
1) at pp 19-39. See also, Vernon (n 6) at pp 735-738.
25
Friccione (n 5) at pp 735, 738.
26
Singer, PMF-study (n 1) at pp 29-30.
27
Singer, PMF-study (n 1) at pp 37.
28
Singer, PMF-study (n 1) at p 39.
8
change in warfare itself, and, third, the general trend to privatise hitherto state-run
areas.29
The first reason was already addressed above, ie the relevance of the end of the
Cold War for the phenomenon of privatising the military use of force.30
The second reason is that the general change in warfare itself has offered
business opportunities for private specialists, eg PMCs.31 Two main areas can be
discerned in this context. On the one hand, the technology of modern weapons has
become so sophisticated that states’ armies require specialists for training, maintenance
and sometimes also operation.32 Such special knowledge is increasingly provided by
PMCs which, and this has to be stressed, operate also within the area of the actual armed
operations.33 On the other hand, sophisticated technology today allows non-state groups
to wield power that was unthinkable a decade ago.34 This development relates to the
perceived criminalisation of armed conflicts in two ways: criminal groups now have
access to superior technology by contracting private experts, and potential ‘victims’ hire
this expertise to protect themselves from the criminal elements.35
29
Singer, PMF-study (n 1) at p 49; see also N Stinnett ‘Regulating the privatization of war: how to stop
private military firms from committing human rights abuses’ (2005) B C Int’l & Comp L Rev 211, at pp
213-215; Friccione (n 5) at pp 746-748.
30
See above in part I.
31
For details see Singer, PMF-study (n 1) at pp 60-66.
32
Singer, PMF-study (n 1) at pp 61-62 noting that this development not only relates to ‘weapons but
encompasses the entire spectrum of warfare. [eg] microelectronics, software engineering, …. Intelligence
[and] the new importance of information warfare, [involving] such diverse activities as psychological
warfare, military deception, electronic combat, and both physical and cyber attack to mislead and
breakdown opponents.’ At p 62-63 stressing the difference between past technological developments and
the most recent ones, namely its decentralization, whereby the latter ‘new technologies such as the Internet
and telecommunications reach full effectiveness only when they are decentralized and allowed to
transcend borders.’ At p 63 further noting the field of strategic information warfare which appears to be
particularly apt to be covered by PMCs.
33
Singer, PMF-study (n 1) at p 63 referring to the US Army’s conclusion that ‘in the future it will require
contract personnel, even in the close fight area, to keep its most modern systems functioning’. At p 64
pointing out that this development not only relates to ‘information warfare or battlefield support’ since
‘areas as diverse as weapons testing, aerial refuelling, and the highly technical maintenance of F-117 and
B-2 Stealth bombers are all private now.’
34
Singer, PMF-study (n 1) at pp 61, 64-66.
35
Singer, PMF-study (n 1) at pp 64-66 noting that, partly because of the desiccation of support from the
former superpowers, the survival of warring parties in the developing countries often depended on
creating new financial resources often based on criminal activities, eg by looting and plundering, drugtrafficking, diamond trading. PMCs can be found on either side of such conflicts, ia on the side of the
struggling government or the non-state actors. For instance, the now defunct South-African PMC
Executive Outcomes (EO) was contracted in the mid-1990ies first by the Angolan, then by the Sierra
Leone Government in order to secure oil-fields and to fight against the respective rebel forces in these
countries. For details see Appendix II of this paper. On the other hand, PMCs reportedly were employed
by terrorist groups, drug cartels and rebel armies; see PW Singer ‘War, profits, and the vacuum of law:
9
Third, the general movement towards privatising hitherto state-run domains
created an atmosphere amongst decision-makers that has proven supportive of
privatising war-related functions, thereby paving the ground for PMCs to offer their
services within the realm of these formerly core public domains.36 Privatisation was
complemented by another trend that started in the 1980’s mainly within the corporate
realm, namely the outsourcing of all operations that were not directly related to the core
business of the respective enterprise.37 This strategy of outsourcing has found many
advocates in the defence sector, particularly in the United States and the United
Kingdom.38
2.
39
Categorisation of the industry
Today’s PMCs offer a wide range of military services that, until the end of the Cold
War, was reserved to the states’ armies. This includes ‘combat operations, strategic
planning, military training, intelligence, military logistics, and information warfare.’40
Many PMCs (as well as their clients) studiously avoid the term ‘military’ and prefer the
term ‘security’ instead, for it has a less bellicose and more legitimate ring to it.41 The
majority of the PMCs also refrain from openly promoting combat expertise and rather
claim to provide advisory and consulting knowledge.42 However, PMCs engage directly
Privatized Military Firms and international law’ (2004) 42 Colum J Transnat’l L 521 (following: Singer,
PMFs and international law) at p 523 with references in fn 9.
36
Singer, PMF-study (n 1) at pp 66-70 detailing the trend of privatisation from its roots, the British
election of Margaret Thatcher in 1979 and her following ‘program of denationalisation’, to the ensuing
wave of global privatisation movement in the 1980ies and 1990ies, furthered by international financial
institution such as the IMF and the World Bank, to the entering into the domain of police, punishment and
military security. See also Rosky (n 2) at pp 896-914..
37
Singer, PMF-study (n 1) at p 68.
38
Singer, PMF-study (n 1) at p12, 14-17, 68; Vernon (n 6) tracing back ‘outsourcing’ in the US to the
mid-1950ies; Friccione (n 5) at pp 746-748 also focusing on the US; UK Green Paper (n 2) at p 4 referring
to practice in the UK to outsource those military tasks that formerly were conducted by the armed forces.
39
Drawing on PW Singer, PMF-study (n 1) at pp 73-136; another classification follows the US Army
Field Manual (Headquarters of the Dep't of the Army, FM 3-100.21, Contractors on the Battlefield (2003))
paras 1-7, which categorizes contractors as either ‘theater support contractors, external support
contractors, or system contractors.’ For further description cf Friccione (n 5) at pp 744-746.
40
Singer, PMF-study (n 1) at pp 8, 73; UK Green Paper (n 2) at pp 8-9, paras 9-12; TS Milliard
‘Overcoming post-colonial myopia: a call to recognize and regulate private military companies’ (2003)
176 Mil L Rev 1, at pp 11-15. For an up-to-date overview of different PMCs and their self-proclaimed
area of expertise see the membership list of industry’s trade association, the International Peace
Operations Association at: http://ipoaonline.org/en/membership/memberslist.htm (visited: 10 July 2006).
41
Singer, PMF-study (n 1) at p 90, within his comment at pp 89-91 on, in his view, ‘ill-defined and
indeterminate’ attempts of classifying industry, such as ‘active’ vs ‘passive’, or ‘private military firm’ vs
‘private security firm’, or ‘offensive’ vs ‘defensive’, or ‘domestic’ vs ‘international’.
42
A notable exception appears to be the Blackwater USA. For details see Appendix II of this paper.
10
in combat operations.43 Even when they do not, they often operate or find themselves in
the area, in which combat operations are taking place, or they provide services that are
critical to the military mission, although physically rendered outside the combat zone.44
Because PMCs services are related to the waging of war they are often referred to as
mercenaries or mercenary-companies.45 Yet, PMCs differ significantly from
mercenaries, ie the traditional foreign soldier for hire.46 Prior to addressing these
differences, however, a brief categorization of the industry and an assessment of its
impact on the battlefield is helpful for the understanding of the particularities of PMCs.
Furthermore, it provides a mental guidance for the subsequent exploration of legal
responsibilities.
For the categorization of the PMC industry and its operation, this paper will use a
conceptual framework based on the ‘tip-of-the-spear typology’.47 It uses a spear as a
metaphor to classify types of PMCs or their operations. The tip of the spear reflects the
frontline, ie the ‘area of operation’ in which the actual fighting takes place. Using this
metaphor one can place military units, as well as PMCs, along the spear to visualize the
growing distance from the tip of the spear, ie the frontline. In this way, three general
types of PMCs can be distinguished: Military Provider Firms, Military Consultant Firms
and Military Support Firms.48 It is important, however, to bear in mind that some of the
PMCs are not clearly placed in one of these categories but rather on the borderline
between two of them. Others may offer services in more than just one category.49
(a)
Military provider firms
Military provider firms are found at the tip of the spear. They provide tactical solutions
for the armed conflict and engage in active combat, ‘either as line units or specialists …
43
See below and Appendix II of this paper for details and examples.
See Singer, Warriors for hire (n 15), noting at *3 that in the recent occupation of the Iraq ‘support and
military consulting have become more dangerous …. But the most dramatic and controversial expansion
of [PMC] involvement is in the combat realm.’ See also Vernon (n 6) at pp 371-372, and pp 378-382
referring to PMCs supporting the US Forces.
45
See Milliard (n 40) at p 8.
46
Singer, PMF-study (n 1) at p 40 quoting the Webster Dictionary definition of ‘mercenary’ as ‘a soldier
hired into foreign services’. The differences will be outlined below in part II.4.
47
For details see Singer, PMF-study (n 1) at pp 91-92. Another classification follows the US Army Field
Manual (n 39). For further description see Friccione (n 5) at pp 744-746.
48
Terminology derived from Singer, PMF-study (n 1) at pp 91-93. Id, Corporate Warriors (n 13) at pp
200-202; for an application to the 2003 Iraq war and subsequent occupation, see Singer, Warriors for hire
(n 15)
49
See Singer, PMF-study (n 1) at p 92.
44
11
and/or direct command and control of field units.50 Provider firms tend to offer either
‘overall unit packages’ or ‘specialized “force multipliers”’.51
Clients of military provider firms are likely to find themselves faced by
‘immediate high threat situations’ without a military force capable of dealing with this
situation.52 Examples of PMCs acting as military provider firms include Executive
Outcomes (EO),53 Sandline54 and Blackwater.55
(b)
Military consulting firms
Firms in this sector specialize in training and advising their clients’ armed forces which
are often in a process of reorganization, ie, in a situation in which the client seeks to
enhance its military capabilities and therefore draws on external analytical and advisory
support on the strategical, organizational and/or operational level.56 The key difference
between military consulting firms and military provider firms is that, in the case of
military consulting firms, the risk of implementing the suggested solutions on the
battlefield rests upon the client’s forces, ie military provider firms do not engage in
active combat.57
Clients of military consulting firms usually find themselves in less imminent
threat situations, and the relationship between customer and firm is frequently a long-
50
Singer, PMF-study (n 1) at p 92; id, Corporate Warriors (n 13) at p 201.
Singer, PMF-study (n 1) at p 93. When offering ‘overall unit packages’ the PMC supplies the client with
a ‘stand-alone tactical military unit’, thereby not complementing an existing army but rather offering an
alternative or substitute thereto. When used as ‘force-multipliers’, PMCs’ ‘employees play active roles
alongside those of the client, but in a way designed to make the overall combination more effective’, see
ibid at pp 93-95. See also Appendix II of this paper.
52
Singer, PMF-study (n 1) at p 93.
53
Details on EO and its operations in Angola and Sierra Leone can be found in Appendix II of this paper.
54
Sandline, a UK based PMC has been defunct since 2004. It is best known for two events, one being
‘Operation Contravene’ in Papua New Guinea (PNG), the other the ‘Sandline Affair’ related to the
conflict in Sierra Leone. Singer, PMF-study (n 1) at pp 191-196 (‘Operation Contravene). The contract
between the PNG Government and Sandline is reprinted ibid, Appendix 2, pp 245-254. Ibid pp 114-115
and p 213 (‘Sandline Affair’). For details see Appendix II of this paper.
55
Blackwater USA became known to the broader public in connection with the 2003 Iraq war and
ongoing insurgency there. For more details see Appendix II of this paper.
56
Singer, PMF-study (n 1) at pp 95-97.
57
Singer, PMF-study (n 1) at pp 95. However, the distinction is often blurred and employees of military
consultants may ‘find’ themselves at the frontline engaged in active combat, Singer, ibid, at pp 95, 97
citing, ia, the example of Vinnell’s employees accompanying their client, the Saudi National Guard,
during active fighting in the 1990 Gulf War.
51
12
term one.58 Examples of PMCs specialising as military consulting firms include Military
Professional Resources Incorporated (MPRI),59 Vinnell60 and DynCorp.61
(c)
Military support firms
PMCs operating in this sector offer a broad range of supportive services that are not
regarded as forming ‘part of the overall core mission of the client’. Services include
‘logistics, intelligence, technical support, supply and transportation.’62 Military support
firms are able to specialize in these supportive tasks to an extent that would not be
sustainable for the military.63 These firms do not take part in the active conduct or
planning of the fighting.64 Their services, however, are crucial to the overall success of
the military campaign.65 Moreover, they are not safe from combat threats either,66 as
evidenced in the recent Iraq war and subsequent occupation.67
Clients of military support firms are likely to be engaged in long-term
interventions. In such situations, military support firms can provide the ‘surge-capacity’
needed by the client to stage an intervention.68 Examples of military supply firms
include Halliburton KBR (KBR), formerly known as Brown & Root Services (BRS),69
and Ronco.70
58
Singer, PMF-study (n 1) at pp 96, pointing to an internal distinction within this sector of PMCs: some
consulting firms focus on analysis only, whereas others offer both the analysis and the solutions for the
problems found during the analysis. The latter situation is, of course, more lucrative for the PMC. On the
other hand, the risk for the client to receive biased advise is higher.
59
For details see Appendix II of this paper.
60
For details see Appendix II of this paper.
61
For details see Appendix II of this paper.
62
Singer, PMF-study (n 1) at p 97.
63
Singer, PMF-study (n 1) at p 97.
64
Singer, PMF-study (n 1) at p 97.
65
Singer, PMF-study (n 1) at p 97 and in Warriors for hire (n 15) referring to the official US military
doctrine on logistics which states. ‘Since the dawn of military history, logistical capabilities have
controlled the size, scope, pace, and effectiveness of military operations .… Logistical capabilities must be
designed to survive and operate under attack; that is, they must be designed for combat effectiveness, not
peacetime efficiency.’ US General Omar Bradley: ‘Amateurs talk about strategy; professionals talk about
logistics.’ Cited after Singer, Warriors for hire (n 15) at *2.
66
Singer, PMF-study (n 1) at p 97.
67
Singer, Warriors for hire (n 15) citing examples of shutting down of supply routes by PMCs due to
security reasons, such as the abduction of firms’ truck drivers.
68
Singer, PMF-study (n 1) at p 97.
69
For details see Appendix II of this paper.
70
For details see Appendix II of this paper.
13
3.
The impact of the industry
Since the early 1990’s, the private military industry has been booming and this boom is
likely to continue. PMCs are active in more than 110 states in Africa, Europe, the former
Soviet Union, the Middle East and the Americas.71 It appears, however, that the number
of Home States, ie states in which PMCs have their registered headquarters, is much
more limited.72 Furthermore, it seems that the United States and the United Kingdom
account for the bulk of the industry’s market.73 The industry has not only experienced a
steady growth but also a beginning consolidation and integration into established
conglomerates.74 The growing importance of the industry can be illustrated in
quantitative and in qualitative terms.75
(a)
The quantitative impact
The following facts may serve to illustrate the quantitative impact: Between 1994 and
2002 alone, the United States Department of Defence (DoD) signed more than 3000
71
WP Speros ‘Friend-of-a-friendly fire: a future tort issue of contractors on the battlefield’ (2006) 35 Pub
Cont L J 297, at p 303 states the numbers of 90 PMCs in 110 states. Singer, PMF-study (n 1) at p 79
estimates the ‘global number’ of PMCs ‘to be in the mid-hundreds’ excluding ‘[s]maller organizations that
primarily operate overseas’. Ibid at pp 9-17 Singer cites numerous examples of global PMC activities. The
conflict in Iraq has caused a further boom of the industry, see below part II.3. See also RU Weiner ‘Sheep
in wolves’ clothing: Private Military Men Patrol Iraq in Constant Jeopardy of Stepping on Legal
Landmines’ 2006-FEB Legal Aff 23.
72
The following states are known to be Home States to PMCs: United States, United Kingdom, Canada,
France, Israel, South Africa, Russia, Angola, Sierra Leone, Belgium, Uganda. Some other countries may
be home to PMCs. Yet, it remains uncertain whether such companies actually exist or operate. See
Stinnett (n 29) at p 218 and in fn 63. Cf List of PMCs at the Public Integrity Website, at http://
www.publicintegrity.org/bow/docs/bow_companies.xls (visited: 11 July 2006). Note, however, that this
list does not seem to be fully up to date. For instance, the PMCs Blackwater (US) and Erinys (UK) are not
included. Furthermore, Iraq certainly must be added to the list of PMC Home States; see homepage of the
Private Security Company Association in Iraq (PSCAI) at http://www.pscai.org/ (visited: 19 July 2006).
As per 19 July 2006 the homepage listed 50 companies as PSCAI members and the ‘full list’ contained
146 companies (PSCAI members and others) operating in Iraq.
73
As evidenced indirectly by the industry’s main lobby organizations being based in the US and the UK,
the International Peace Operations Association (www.ipoaonline.org) and the British Association of
Private Security Companies (BAPSC, www.bapsc.org.uk). For recent outsourcing decisions of the UK
Government, see Singer, PMF-study (n 1) at p 12; as regards Canada and the US, ibid at pp 14-17.
74
For instance, MPRI has been bought by L3, a Fortune 500 firm; see Singer, Warriors for hire (n 15) at
*1; KBR (former BRS) forms part of the Halliburton conglomerate. The UK PMC Defense Service
Limited merged with Armor Holdings, and Armor Holdings also purchased the Russian PMC Alpha. As a
result Armor, already in 2003, had ‘over 5000 personnel located in 40 subsidiaries based in over 50
countries.’ Singer, PMF-study (n 1) at p 84. Armorgroup presently boasts to have more than ‘9000
employees operating in more than 35 countries, principally in regions or the world afflicted by diminished
law and order or with a high risk of terrorism’. It claims to have ‘assisted clients in over 160 countries.’
See http://www.armorgroup.com/about.asp (visited: 20 July 2006).
75
For a detailed assessment of the impact of PMCs cf Singer, PMF-study (n 1) at pp 151-242; C Walker
and D White ‘Contracting out war?: Private military companies, law and regulation in the United
Kingdom’ 54 ICLQ 651, at pp 687-689.
14
contracts with PMCs registered in the United States.76 The aggregate contract value was
said to exceed US $300 billion and the annual revenues of the industry reportedly
amount to US$ 100 billion.77 And all this before ‘the industry took full flight’ during the
2003 Iraq war and ensuing occupation.78 Even before the 2003 invasion into Iraq, the
ratio of United States military personnel to private contractors was 10 to 1. By
comparison, during the 1991 Gulf War, this ratio had been ‘only’ 100 to 1.79 However,
the private supply of military services has ‘skyrocketed’ during the ongoing occupation
of Iraq.80 Precise numbers are hard to obtain.81 Estimations of the personnel of PMCs in
Iraq used to range between 15 000 and 20 000 and were predicted to rise to 30 000 after
granting of sovereignty to the new Iraqi government which was still pending when this
prediction was made.82 However, the actual numbers seem to be much higher. As per
March 2006, ‘the Director of the Private Security Company Association of Iraq estimated that
approximately 181 private security companies were working in Iraq with just over 48,000
employees.’83 The revenues generated by PMCs in Iraq are also impressive. For instance,
the contracts awarded to Vinell, MPRI and Nour USA for the training and equipment of
the new Iraqi Army are reported to cost up to US$ 2 billion.84 Halliburton is said to have
‘done $6 billion worth of business on Iraq contracts’ by 2004 alone.85 However, it would
be wrong to believe that only United States PMCs and nationals operate in Iraq.86 For
instance, the number of South Africans working for private security providers in the
76
Singer, PMF-study (n 1) at p 15.
Singer, PMF-study (n 1.) at p 15. I Lilova ‘Problems with the privatisation of counterterrorism’ of 2005,
available at http://www.erta-tcrg.org/cri6224/ct-privatization.htm (visited on 10 September 2006).
78
Singer, Warriors for hire (n 15) at *2 noting that not only the US relied ‘heavily’ on PMC support in
Iraq but also other coalition forces including the British and the Australian ones.
79
Singer, Warriors for hire (n 15). Weiner (n 71) at p 24 states a 1991 ratio of 50 to 1. See also Speros (n
71) at p 301 placing the 1991 ratio between 50 to 1 and 100 to 1, but also stating the 2003 one at 10 to 1.
Vernon (n 6) at p 374 points out that in the Balkans ‘[12000] contractor employees supported 9,000
troops.’
80
Singer, Warriors for hire (n 15) at *2.
81
Singer, Warriors for hire (n 15) at *2. But the PMC industry in Iraq has started to organize itself, and, in
this process, make more information accessible to the public, eg, through the PSCAI homepage (n 72).
82
Singer, Warriors for hire (n 15) at *1 citing an estimate of 15000 PMC employees and expecting a rise
up to 30000 at *2 citing Coalition Provisional Authority (CPA) estimates; Speros (n 71) at p 300 citing
15000 to 20000 referring to estimations of the Pentagon. Friccione (n 5) at p 760 states a total of 20000.
83
Report 06-865-T of the US Government Accountability Office (GAO) ‘Rebuilding Iraq – actions still
needed to improve the use of private security providers’ of 13 June 2006, available at:
www.gao.gov/new.items/d06865t.pdf (visited: 10 August 2006; following: GAO Report) at p 2 comparing
these numbers to the ones for 2005 (60 companies and 25 000 employees).
84
Singer, Warriors for hire (n 15) at *2.
85
Singer, Warriors for hire (n 15) at *2. As regards Halliburton, see also Appendix II of this paper.
86
PMCs’ employees in Iraq come from more than 30 different states. Singer, Warriors for hire (n 15) at
*1.
77
15
current conflict in Iraq is estimated to amount to ‘several thousands’, thus being ‘the
third-largest foreign presence in Iraq’. Repatriated remunerations to South Africa are
said to range from ‘some R2,4 billion to R4 billion’ per year.87 The industry’s outlook is
bright: ‘[R]evenues are expected to increase by about 85 percent in industrial countries
and by 30 percent in developing countries.’88
(b)
The qualitative impact
The industry’s development, however, is not only impressive in quantitative, but also in
qualitative terms.89 To better understand PMCs’ impact on the way wars are waged and
on the environments in the Host State, it is helpful to distinguish between the use of
PMCs by states with a functioning state military and the operations of PMCs in Host
States without such an effective state military.90
In the former case, although the supplementation of a functioning state military
with PMCs is unlikely to endanger the stability of the state hiring the PMC, it certainly
introduces a number of significant challenges to the state and its military, challenges
which, unless properly addressed, can even jeopardise entire operations on the ground.
Two of these challenges stick out. The first concerns military efficacy and is caused by
the fact that PMCs and their employees usually remain outside the military chain-ofcommand.91 The second relates to the economic efficiency of the use of PMCs and is
precipitated by various reasons, eg the imperfect market in which PMCs operate,92 the
lack of oversight over PMCs’ performances of contracts,93 and the introduction of the
87
J Stremlau ‘Isolationist backlash in US may not bode well for SA interests’ in The Sunday Independent
of 27 November 2005 at p 9. See also M Le Roux ‘SA “has duty to regulate mercenary activities”’ in
Cape Times of 7 June 2006 at p 7 referring to a South African Defence Department official estimating the
number of South Africans working in Iraq with 5000.
88
Lilova (n 77); by 2010 the industry expects to at least double its revenues, Singer, PMF-study (n 1) at p
78; ibid at pp 78-80 with more details on the market composition and outlook of the industry.
89
Details in: Singer, PMF-study (n 1) at pp 151-242.; Singer, Warriors for hire’ (n 15); Weiner (n 71)
rising awareness as regards the true ‘costs’ of the use of PMCs by states, especially in relation to (i) tort
liability (ii) insurance premiums (iii) pay-scale discrepancies (iv) work-shutdowns. Singer, Corporate
Warriors (n 13) at pp 191-215; Friccione (n 5) distinguishing at pp 734, 746 et seq, 765 et seq, functions
and impacts of PMFs in developed countries from the situation in (instable) developing countries.
90
This distinction is used by Friccione (n 5) at pp 734, 746 et seq and 765 et seq.
91
This chain-of-command problem forms part of a wider ‘control’ problem which is caused by
outsourcing in general and in the particular case of outsourcing military tasks. For details on this broader
control issue see Singer, PMF-study (n 1) at pp 158-166.
92
Singer, PMF-study (n 1) at p 155; see also Rosky (n 2) at pp 956-963 for an exploration of the imperfect
market argument.
93
As regards the lack of oversight see Singer, PMF-study (n 1) at pp 152-157 who, ia, refers to the
negative experiences of the US forces in the Balkans. Further, Singer, Warriors for hire (n 15) at *2 with
respect to the recent Iraq conflict.
16
need for economic and corporate considerations into the battlefield.94 Only this latter
aspect of the second challenge shall be dealt with in this survey.
The first, purely military, challenge concerns the question of control over PMCs
and their employees. It can be illustrated by the experiences of the United States and her
forces in the recent conflict in Iraq. As mentioned above, the United States has been
making considerable use of all categories of PMCs there. Yet, PMCs and their
employees usually stay outside the United States military chain of command.95 They are
expressly excluded from the Uniform Code of Military Justice (UCMJ). Unless
Congress declares war, PMCs’ obligations are solely governed by the respective
contracts. Only the contracting officer exercises authority over the PMC.96 War,
however, has not been officially declared by the United States since World War II,97 and
the contracting officer is normally not present in the area of operations.98 Due to this
situation, commanders on the ground have been severely hampered or even prevented
from commanding and controlling PMCs, their employees, as well as military units that
depended on such private contractors. Due to the United States military’s heavy reliance
on PMCs, there is hardly any major unit remaining which does not depend on the
support of private contractors.99 In summary, the ‘chain-of-command’ problem directly
94
Weiner (n 71) at pp 3-4.
See Vernon (n 6) at pp 382-388 regarding the field commanders’ lack of ‘[c]ontrol over the contract’
and pp 388-395 regarding the lack of control over the PMCs’ employees. GAO Report (n 83) at p 1 ‘The
relationship between the U.S. military and private security providers is based on cooperation and not
control.’
96
The US Army Field Manual (n 39) at para. 1-6 reads: ‘Duties of contractors are established solely by the
terms of their contract--they are not subject to Army regulations or the Uniform Code of Military Justice
(UCMJ) (except during a declared war). Authority over contractors is exercised through the contracting
officer.’ Quoted after Friccione (n 5) at p 758 and fn 199.
97
Friccione (n 5) at p 758. Singer, PMF-study (n 1) at p 161.
98
Vernon (n 6) at pp 382-384. For more details see Appendix II of this paper.
99
For instance, after four Blackwater USA contractors were killed in Fallujah in April 2004, Halliburton
reportedly considered withdrawing from Iraq. According to a senior US official in Iraq such a move by
Halliburton would have entailed the ‘complete collapse of the support infrastructure’ of the US forces.
Though it did not end its operations in Iraq, Halliburton and other private military support firms suspended
their operation due to the surge of violence after the Fallujah incident. This affected ‘key areas’ and thus
‘the movement by the firms effectively ceased in large portions of Iraq, including the Kuwait-to-Baghdad
supply run.’ See Singer, Warriors for hire (n 15) at *2. Vernon (n 6) at p 395 quoting the US Army’s
senior logistic officer’s comment on the refusal of some PMCs to ‘deploy to dangerous areas of Irag’ as
follows “[w]e thought we could depend on industry to perform these kinds of functions … [but it got]
harder and harder to get [them] to go in harm’s way.” Weiner (n 71) at pp 3-4, whereas ‘a contractor in
charge of operating Iraqi ports and a contractor responsible for securing the Baghdad airport temporarily
shut down their operations when they weren't paid on time.’ Vernon (n 6) at p 389 describing that in the
Balkans employees from Brown & Root insisted on their holidays and refused to work, although their
services were needed by the forces and in spite of ‘payment incentives’. Since the contractual relationship
95
17
affects the commanders’ ability to command and control their units, ie it may reduce or
impede the commanders’ control over the operations on the battlefield.
In contrast to this ‘chain-of-command’ issue, which concerns general military
efficacy, the second challenge relates to the efficiency of a state’s military. The
introduction of economic and corporate considerations into the battlefield does not
necessarily have to concern the commanders in the field, for it is not them but the
contracting officer who is competent to negotiate contracts with PMCs and amend them,
and who bears the responsibility ‘for the funding implications of the new
commitment’.100 However, past and present experiences with PMCs indicate that the
‘true costs’ of the use of PMC may be much higher than initially expected. The reasons
for this include the fraudulent overbilling by PMCs combined with a lack of oversight
within the military or Defence Department,101 the absence of contracting skills on the
side of the military,102 and the lack of understanding of cost implications which a
commander’s military decisions might entail.103 Less obvious and therefore more
interesting are ‘hidden costs’, especially those that might be the result from tort suits and
increased insurance premiums.104 In contrast to state soldiers, PMCs’ employees or their
surviving dependants may sue a PMC for damages.105 It is likely that PMCs that are
ordered to pay damages will pass on the additional expenses to their clients in the form
of increased fees.106 An order to pay damages would probably cause a rise in the
insurance fees for the mandatory life insurances of the PMCs’ employees.107 Moreover,
as experienced in Iraq, hostile environments are per se prone to lead to a significant
between a PMC and its employees does not guarantee the firm’s ‘disciplinary control’ over its employees,
Brown & Root was unable to force its employees to work.’ Singer, PMF-study (n 1) at pp 160-161.
100
Vernon (n 6) at pp 382-384.
101
The problems of oversight and fraud in Iraq are pictured by Singer, Warriors for hire (n 15) at *2. The
contracting office in Baghdad was initially staffed with only five persons responsible ‘for managing some
$18 billion in contracting. … in the middle of the most confusing contracting zone in the world.’ As in
other scenarios serious allegations of fraudulent contractor behaviour abound, eg, accusations against
Halliburton of having billed several thousands ‘of meals never served’, see Singer, ibid. See also Friccione
(n 5) at pp 750-751 mentioning that auditors of the Pentagon found ‘more than $100 million in
questionable costs in one section of a massive, no-bid fuel delivery contract.’
102
Vernon (n 6) at pp 384-387; Friccione (n 5) at p 749.
103
Singer, PMF-study (n 1) at p 153 referring to the US experiences in the Balkans, where ‘local
commanders often did not think in terms of the cost ramifications of their decisions, driving up the price
overruns.’
104
Weiner (n 71) at p 3.
105
Weiner (n 71) cites the example of tort claims of the relatives of the four Blackwater contractors who
were killed in Falludjah.
106
Weiner (n 71) at p 3; see also Speros (n 71).
107
Weiner (n 71) at p 3.
18
increase of insurance fees up to a point at which the performance of the contract
becomes financially unviable for the PMC.108
In summary, PMCs may, at first glance, offer cost-efficient solutions to their
clients. Yet, the ‘true costs’ of their operations, particularly in hostile environments, are
not fully explored and may end up much higher than initially calculated. The corporate
structure of PMCs introduces new factors into the battlefield which will have to be
considered by the decision-makers and which, eventually, may directly affect the
military commanders capacity to control the operations.109
The impact of PMCs operating in states which lack an effective own military is
even more significant. The deployment of an effective PMC into such an environment
can change a conflict in favour of the party hiring the PMC. This can increase the chance
of shortening the duration of the conflict and stabilizing the area in question, thereby
reducing the suffering of the civilian population.110 On the other hand, PMCs can
contribute to the destabilization of already ‘weak’ states. Examples of the former,
stabilizing effect of PMCs are EO’s militarily successful operations in the armed
conflicts in Angola and Sierra Leone.111 The peril of destabilization is illustrated by
Sandline’s ‘Operation Contravene’ in Papua New Guinea (PNG).112
4.
Are PMCs and/or their employees mercenaries?
PMCs are frequently referred to as mercenaries or mercenary companies.113 The use of
the term mercenary, however, appears to be of little help when in comes to addressing
the phenomenon of PMCs. Neither PMCs nor their employees are covered effectively by
the existing rules under international law that deal with mercenaries. What is more,
108
Weiner (n 71) at p 3 referring to an increase of insurance rates by 600% shortly before the 2003 Iraq
invasion, and to PMCs having to pay up to 40% of their overhead for insurance coverage. Weiner (n 71) at
p 3 also points to the fact that several PMCs operating in Iraq had been ‘priced out of the market’ due to
these high costs leaving scores of soldiers in dangerous areas without food and fresh water.
109
In addition to the ‘pricing out of the market’ due to high insurance rates, Weiner (n 71) at pp 3-4
mentions work shutdowns due to labour disputes between PMCs and their employees.
110
Friccione (n 5) at p 769.
111
For details see Appendix II of this paper.
112
See details in Appendix II of this paper. See also Singer, PMF-study (n 1) at pp 196-204 with an
assessment of when PMCs may have an destabilizing or stabilizing effect. At pp 204-205 stressing that
PMCs might have a negative effect on the civil-military relationship even in ‘stable states’.
113
See Singer, PMF-study (n 1) at pp44-45 with further references
19
outside the purely legal realm, present-day PMCs also differ significantly from the
traditional perception of mercenaries.114
(a)
PMCs and their employees are not effectively covered by existing
international anti-mercenary laws
(i)
Treaties
The following treaties are most commonly cited in connection with mercenaries and
PMCs, and their treatment under international law:115 the 1907 Convention (V) on
Rights and Duties of Neutral Powers and Persons in Case of War on Land,116 the 1949
Geneva Convention Relative to the Treatment of Prisoners of War (Geneva Convention
III),117 the 1977 Additional Protocol I to the Geneva Conventions (Protocol I),118 the
1977 Organization of the African Unity Convention for the Elimination of Mercenarism
in Africa (OAU Mercenary Convention),119 and the 1989 International Convention
Against the Recruitment, Use, Financing and Training of Mercenaries (UN Mercenary
Convention).120
114
Singer, PMF-study (n 1) at pp 40-48.
Singer, PMFs and international law (n 35) at pp 526-527; EL Frye ‘Private Military Firms in the new
world order: how redefining “mercenary” can tame the “dogs of war”’ (2005) 73 Fordham L Rev 2607 at
2625.
116
36 Stat. 2310. This convention imposes a legal regime on states and persons that are not parties to a
war, ie on neutral parties, but does not oblige states to restrict their nationals from participating in such a
war on either belligerent side. For more details see: Singer, PMFs and international law (n 35) at p 526;
Frye (n 115) at pp 2624-25.
117
75 UNTS 135. This convention aims at improving the status of prisoners of war (POW), not at
regulating mercenaries who remain unmentioned in the treaty. Arguably, mercenaries are entitled to POW
protection under this convention. In any case, mercenarism is neither prohibited nor criminalized. For
details see: Singer, PMFs and international law (n 35) at pp 526-527; Frye (n 115) at p 2625.
118
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts, 8 June 1977; 16 ILM 1391, 1125 UNTS 3. As per 18 August
2006, there were 166 state parties to the protocol and five signatories, among them the US.
119
1490 UNTS 96. The OAU Mercenary Convention is the most important regional convention
concerning mercenarism, for the mercenary problem affected Africa more than other continents in the
post-colonial area. In defining ‘mercenary’ art 1 of this convention uses the purpose for which the
respective person is hired to identify mercenaries, ‘…specifically if they were hired for the overthrow of
governments or OAU-recognized liberation movements.’ See Singer, PMFs and international law (n 35) at
p 528. Yet, OAU states are allowed to hire private military providers for other purposes, see Frye (n 115)
at p 2630. Though the Convention also criminalizes conduct of mercenaries who fall within the scope of
the definition no enforcement system is stipulated, Singer, PMFs and international law (n 35) at p 529. In
sum, ‘[t]he OAU Mercenary Convention has been largely ignored.’ Frye (n 115) at 2630.
120
2163 UNTS 96; 29 ILM 89 (1990). The UN Mercenary Convention had been open for signature since
December 1989. Yet, it did not come into force before Costa Rica, in 2001, became the 22nd state ratifying
the convention, cf Frye (note 115) at p 2631.
115
20
Protocol I explicitly deals with mercenaries. Article 47(1) states that ‘[a]
mercenary shall not have the right to be a combatant or a prisoner of war.’ Article 47(2)
defines ‘mercenary’ as follows:
‘A mercenary is any person who:
(a) is specially recruited locally or abroad in order to fight in an armed
conflict;
(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
conflict, 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 conflict nor a resident of territory
controlled by a Party to the conflict;
(e) is not a member of the armed forces of a Party to the conflict; and
(f) has not been sent by a State which is not a Party to the conflict on
official duty as a member of its armed forces.’
These prerequisites are cumulative.121 The narrowness of this definition is
palpable.122 First, it obviously targets individuals; thus it cannot be interpreted to
encompass, in addition, also private entities like PMCs without violating the rules of the
interpretation of treaties.123 Secondly, it applies merely in international armed
conflicts.124 Thirdly, it provides too many loopholes to be effective even against
individuals.125 Some of these loopholes will be addressed below.
121
Y Sandoz, C Swinarski, B Zimmermann (eds) ICRC Commentary on the Additional Protocols of 8
June 1977 to the Geneva Conventions of 12 August 1977, 1987, (following also: Commentary Protocol I)
at para 1804.
122
Frye (n 115) at p 2638-2639.
123
The Vienna Convention on the Law of Treaties (1969) 8 ILM 679 (following also VCLT 1969). Art
31(1) states that treaties are to be construed according to the ‘ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object and purpose’.
124
As defined in art 1(3) and (4) of Protocol I in connection with art 2 common to the Geneva
Conventions of 12 August 1949.
125
For details see: Frye (n 115) at pp 2637-2641; Singer, PMFs and international law (n 35) at pp 527-529
and 532-534; Y Dinstein The conduct of hostilities under the law of international armed conflict (2004) at
pp 50-52; also the CUDH Centre Universitaire de Droit International Humanitaire report on the ‘Expert
meeting on private military contractors: status and state responsibility for their actions’, convened on
29/30 August 2005 (following: CUDH Report), available at:
21
Compared to the Protocol I, the UN Mercenary Convention adopts a more
forceful stance against mercenarism in that persons recruiting, using, financing or
training mercenaries, as well as mercenaries, ‘who participate directly in hostilities or in
a concerted act of violence’ commit offences for the purpose of the convention (arts 2-4
UN Mercenary Convention). Moreover, states must – subject to the provisions in art 5 –
refrain from acting as described in the title of the convention and either punish or
extradite offenders (art 12 UN Mercenary Convention). However, the definition of
‘mercenary’ in art 1 of the UN Mercenary Convention, though wider than the definition
in art 47 of the Protocol I, is still narrow and contains enough loopholes to render the
UN Mercenary Convention largely ineffective.126
Like the definition of ‘mercenary’ in art 47 of the Protocol I, art 1 of the UN
Mercenary Convention aims at private individuals and therefore does not embrace
corporations such as PMCs.
Furthermore, only three of the loopholes in these definitions will suffice to show
that hardly any employee of a PMC will fall within the scope of the definition of
‘mercenary’.127 First, these treaties were formulated with the aim of constraining the use
of ‘guns-for-hire’, ie, private individuals actually ‘pulling the trigger’ in a specific
conflict and thus taking ‘direct part’ in the conduct of hostilities.128 Yet, it remains
highly debatable whether PMC employees take ‘direct part’ in hostilities if they provide
rather indirect services like training, surveillance, maintenance, logistics, asset guarding
and intelligence, all of which are necessary for warfare but do not match the image of
the ‘trigger-pulling’ foreign individual that the drafters of the treaties had in mind.
www.cudih.org/communication/FINAL_Report_PM.pdf (visited: 18 August 2006) where the discussion
of experts related at pp 24-29 confirms the view of some governments, including the UK Government, that
the definition of ‘mercenary’ in art 47 of Protocol I is ‘unworkable’. See UK Green Paper (n 2) at p 7, para
6.
126
Article 1(1) embraces the definition of ‘mercenary’ as stipulated in art 47(2) Protocol I. Article 1(2)
widens the definition with the effect that mercenary is also considered to be who is ‘specially recruited …
for the purpose of participating in a concerted act of violence aimed at … [either] undermining the
constitutional order of a State [or] undermining the territorial integrity of a State, …’ and who fulfils the
other cumulative conditions stipulated in art 1(2)(g)-(e) that more or less resemble those in art 1(1) UN
Mercenary Convention. For details see: Frye (n 115) at pp 2630-2631 and pp 2640-2641; there appears to
be consensus ‘… that anyone who manages to get prosecuted under “this definition deserves to be shot –
and his lawyer with [him].”’ George Best, cited in Singer, PMFs and international law (n 35) at p 531, ibid
at pp 529-535.
127
For more details see: JC Zarate ‘The emergence of a new dog of war: private international security
companies, international law, and the new world disorder’ (1998) 34 Stan J Int’l L 75, at pp 120-25;
Singer, PMFs and international law (n 35) at pp 529-533.
128
For example: art 47(2)(a)+(b) Protocol I, and art 1(a), 2(a) in connection with art 3 UN Mercenary
Convention (n 120). See Singer, Corporate Warriors (n 13) at p 191.
22
Secondly, many of the clients of PMCs are sovereign states, international organizations
or multinational companies that are not engaged ‘in a concerted act of violence aimed at
… the constitutional order … or the territorial integrity of a State’.129 Thus, employees
of PMCs with such clients would not fall within the scope of art 1(2)(a) of the UN
Mercenary Convention. Thirdly, states that intend to employ PMCs can easily integrate
them into their armed forces.130 In this case, the condition for being classified
mercenary, stipulated in art 47(2)(e) and art 1(1)(d) and (2)(e), would not be fulfilled.
Because of these and other definitional problems131 neither PMCs nor their
employees are effectively regulated by international ‘mercenary’ treaties.132
(ii)
Customary international law
The above finding is equally true for customary international law.
Although PMCs are active in more than 100 states,133 customary international
law does not appear to regulate or even prohibit PMCs,134 since there is neither state
practice nor a feeling of legal obligation (opinio iuris) that could evidence a rule on this
subject.135 As stated above, the industry is booming and, given the trend to outsource all
but the core military tasks by some of the major military powers, this boom is likely to
continue.136
The current status of customary international law regarding mercenaries is less
clear, thus giving no clear guidance as to the activities of the employees of PMCs.
Scholars seem to agree that international law prohibits neither the use of mercenaries nor
the engagement of mercenaries completely,137 but rather allows states to use mercenaries
129
See UK Green Paper (n 2) paras 9, 10, 22, 29 with examples.
For instance: according to the contract between Papua New Guinea and Sandline of 1997 that was
eventually not performed, employees of Sandline were to be integrated into the armed forces of Papua
New Guinea, see UK Green Paper (n 2) para 6. Cf details in Appendix II of this paper.
131
Such as the focus on the person’s intention to fight for private gain, a prerequisite which is extremely
difficult to prove. Cf Singer, PMFs and international law (n 35) at p 529.
132
Singer, PMFs and international law (n 35) at p 526 and n 534.
133
See above part II.3.
134
Singer, PMFs and international law (n 35) at p 533; Frye (n 115) at p 2637; Zarate (n 127) at p 117.
A rule of customary international law is established when there is “…evidence of a general practice
accepted as law.” See Article 38 s 1(b) Statute of the International Court of Justice (ICJ Statute), 59 Stat
1055, 1060.
135
Zarate (n 127) at p 140.
136
See above part II.3.
137
Zarate (n 127) at pp 80, 116, 131-138, 145; Singer, PMFs and international law (n 35) at pp 533-534;
Frye (n 115) at pp 2625-2632 examines under the headline ‘Customary international law with specific
relevance to mercenaries’ a variety of UN Resolutions, multilateral conventions, the Rome Statute of the
International Criminal Court, but fails to draw a conclusion of her assessment. Indirectly, this can be
derived from her stating at p 2637 that ‘[c]urrent laws have very little effect on mercenary activity’, which
130
23
‘…for legitimate ends, like restoring social order or defending against external
aggression.’138 However, there seems to be an ‘antipathy’ towards mercenaries,139 as
evidenced in resolutions of the United Nations General Assembly140 and even the
Security Council141 as well as in the treaties described above. Notwithstanding this
‘antipathy’, two major factors indicate that mercenarism is at least allowed to the extent
described in the preceding quote. First, the existing resolutions and treaties have to be
considered in their historical context, ie, the post-colonial era and the struggles of
national liberation movements.142 Secondly, there is no consistent state practice on
mercenarism in general, participation in mercenary related treaties and domestic laws on
mercenarism.143 Finally, the problem of defining ‘mercenary’ remains unsolved.144
In summary, customary international law in relation to mercenaries, to the extent
it exists at all, does not cover the conduct of PMCs’ employees, at least if this conduct is
not directed against legitimate governments or does not suppress a peoples right of selfdetermination.145
suggests that Frye, too, opines that mercenarism is not completely banned by international law, including
customary law.
138
Zarate (n 127) at p 145.
139
Zarate (n 127) at p 134, Friccione (n 5) at p 739.
140
For instance, General Assembly Resolution (GA Res) 2465 ‘…using mercenaries against movements
for national liberation and independence is punishable as a criminal act and … the mercenaries themselves
are outlaws.’ Somewhat retreating from this position was GA Res 2625, in that it permitted the toleration
of mercenaries by states provided that states do not organize or encourage them; GA Res 3103 again took
a tougher position declaring ‘.. the use of mercenaries by colonial and “racist regimes” a criminal act and
mercenaries punishable as criminals.’ GA Res 3314 (1974) contained a definition of ‘aggression’,
aggression among other things being ‘…[t]he sending by or on behalf of a State of armed bands, groups,
irregulars or mercenaries.’ The above quotes and citations are derived from Frye (n 115) at pp 2626-2627.
141
The Security Council Resolutions are ‘…explicit, narrow, incident-specific, and admonitory … relating
to mercenaries during the 1960s.’ Frye (n 115) at p 2627.
142
Zarate (n 127) at pp 80, 116, 125, 131-32.
143
Zarate (n 127) at pp 80, 131. For example, the US, the remaining super power, is a signatory to the
Protocol I but has not ratified it, see Frye (n 115) fn 62, 191. Furthermore, it took more than 10 years for
the UN Mercenary Convention to come into force upon Costa Rica becoming the necessary 22nd signatory
state. As per July 2006, there were 28 parties to the convention, none of them a major power. A variety of
signatories and parties (eg Angola, Congo-Brazzaville, Nigeria, Ukraine, Zaire) are reported to be directly
involved in mercenarism. See Singer, PMFs and international law (n 35) at p 531, and Frye (n 115) at p
2631. This has prompted Singer ibid at p 531 to the remark that ‘… the list of signatories acts almost as a
form of jus cogens that runs counter to the treaty – in a sense, an “anti-customary law” – and further
weakens the treaty’s legal impact.’
144
Even the former UN Special Rapporteur on Mercenaries, Enrique Bernales Ballesteros, considered ‘…
defining mercenaries … extremely difficult, if not … impossible, and certainly of no assistance in dealing
with the PMF industry.’ Cited by Singer, PMFs and international law (n 35) at p 534; also by Frye (n 115)
at p2637.
145
Regarding general principles of international law in this context see Milliard (n 40) at pp 76-79.
24
(iii)
Preliminary summary
Under international law, PMCs as private corporations do not fall under the conventional
and customary regulations of mercenaries. In particular, these corporations are not
encompassed by the existing legal definitions of ‘mercenary’.
Furthermore, given the narrowness of the existing definitions of ‘mercenary’ it is
highly unlikely that employees of PMCs will meet all of the conditions of the mercenary
definitions. Therefore, in the vast majority of cases, one will not be able to refer to them
as mercenary for legal purposes.
(b)
PMCs differ significantly from traditional mercenaries
PMCs have been described as representing ‘the next evolution in the provision of
military services by private actors, parallel to the development of the modern business
organization.’146 Though PMCs and past and present-day mercenaries share their pursuit
of private gain, there are many distinguishing elements. A comparison between the
popular understanding of the individual mercenary and PMCs ‘finds that it is the
corporatization of military service provision that sets them apart.’147 The following
factors clearly distinguish PMCs from mercenaries:148
•
PMCs are organized as business corporations, whereas mercenaries operate as
individuals. This corporate structure ‘creates a tested, efficient, and more
permanent structure that can compete and survive in the global marketplace.’149
•
Although both PMCs and mercenaries are profit driven, PMCs profit motivation
relates to ‘business profit rather than individual profit.’ The decisive element is
‘that it is not the person that matters, but the structure that they are within.’150
•
PMCs compete openly on the global market, at least most of them, whereas
mercenaries shy publicity in order to avoid national and international antimercenary laws.151
146
Singer, PMF-study (n 1) at p 45.
Singer, PMF-study (n 1) at p 40 and p 45.
148
The summary draws on the detailed assessment by Singer, PMF-study (n …) at pp 40-48.
149
Singer, PMF-study (n 1) at p 45.
150
Singer, PMF-study (n 1) at p 46
151
Singer, PMF-study (n 1) at p 46 emphasising that PMCs are publicly registered, often maintain
homepages on the internet, and enter into binding contracts with their principals. The PMC Sandline even
sued the PNG government after this had refused to pay Sandline the contractually agreed remuneration.
Sandline succeeded in having PNG’s assets frozen in various states. Eventually the new government and
Sandline settled the matter under international arbitration and the government paid Sandline the full
remuneration. For details see Singer, PMF-study (n 1) at p 195 and Appendix II of this paper.
147
25
•
PMCs often are diversified as regards their clientele, in contrast to mercenaries
who, as individuals, are unable to work for more than one client at a time and are
limited in supplying more than basic combat or training skills.152
•
PMCs recruit their employees openly using ‘public application processes …
[and] established databases’, whereas mercenaries operate on the ‘black market
[and are recruited] by word-of-mouth recruiting forms ….’ This open recruitment
process allows the PMC to tailor the staff that it requires for a specific mission.
The result usually is a much more efficient performance than that of a ad-hoc
grouping of individual mercenaries found on the black market.153
•
PMCs, in contrast to mercenaries, are often integrated ‘into broader corporate
structures that offer a variety of services’ and/or ‘tightly linked with greater
financial holdings and conglomerates.’ These ties increase PMCs’ legitimacy and
‘allow the firms greater access to financial capital and … other corporate
resources.’154
(c)
Summary
PMCs cannot be equated with mercenaries, either from a legal or a more practical
viewpoint. One should therefore refrain from using the term ‘mercenary’, ‘mercenary
company’ or similar terms for at least two reasons.
First, referring to PMCs as mercenary adds to the problems of properly defining
a mercenary. The existing international mercenary laws aim at only one specific type of
private military service provider, namely the individual ‘gun for hire’. Even in this case,
the definitional problems have never been solved.155 Trying to force a complete new and
moreover incoherent category of corporate military service providers under the existing
definitions only serves to deal the coup-de-grace to the existing mercenary laws.
Second, using the term mercenary in connection with PMCs obscures the
particularities of this new phenomenon. This, in turn, might prevent the decision-makers
from dealing adequately with the problems posed by PMCs. Moreover, the negative
152
Singer, PMF-study (n 1) at p 46.
Singer, PMF-study (n 1) at pp 46-47.
154
Singer, PMF-study (n 1) at p 47 and at p 46 mentioning financial means like the ‘sale of stock shares’
and ‘intra-firm trade’ See also ibid at pp 104-106, 117 for an description of EOs corporate network and the
way it was used to successfully perform contracts in 1990’s.
155
In the words of the Commentary Protocol I (n 121) at para 1801: ‘There are few words which suffer
greater misuse these days than the term mercenary.’
153
26
connotation of the term mercenary might hinder decision-makers from making use of the
positive sides the industry arguably has to offer.
Instead of using blurred terms out of context, it seems advisable to treat PMCs as
what they are, namely a new category of service providers which is too diverse in itself
to be subsumable under a definition of mercenary developed in a completely different
context. One should focus on what activities PMCs engage in, and how to regulate these.
For these reasons, this paper will not cover the mercenary issue in more detail in
the following explorations of responsibilities.
III.
STATE RESPONSIBILITY
1.
General rules of state responsibility
In international law, state responsibility arises whenever a state breaches an international
obligation.156 State responsibility, in the words of the Permanent Court of International
Justice (PCIJ) ‘a greater conception of law’,157 entails the state’s duty ‘to make
reparation for any breach of an engagement.’158 Such a breach is termed an
‘internationally wrongful act’ in the Draft Articles on the Responsibility of States
published by the ILC (following also: DARS).159 Two cumulative requisites must be
satisfied for a state to incur international responsibility for the conduct in question:160 the
156
Rebecca MM Wallace International Law 3ed (1997) at p 173; M Schröder ‘Verantwortlichkeit,
Völkerstrafrecht, Streitbeilegung und Sanktionen’ in W Graf Witzthum (ed) Völkerrecht 3ed (2004) 535,
542; see also arts 1 and 2 of the International Law Commission (ILC) Draft Articles on Responsibility of
States for Internationally Wrongful Acts (following also: DARS), and Comment (1) to art 1 DARS in the
Official Commentary of the International Law Commission to the commissions Draft Articles on
Responsibility of States for Internationally Wrongful Acts (following: ILC Commentary). DARS and ILC
Commentary, both in Report of the International Law Commission on the Work of Its 53rd Session, UN
GAOR, 56th Session Supplement No 10; UN Doc A/56/10 (2001), available at http://www.un.org/law/ilc
(visited on 3 October 2005).
Classically, the state becomes liable to another state, Wallace ibid at p 173. The ILC Draft
Articles reflect this classic stance. Yet, with the development of international law, non-state entities
increasingly invoke state responsibility, see EB Weiss ‘Invoking state responsibility in the twenty-first
century’ (2002) 96 Am J Int’l L 798, 815. Introduction to state responsibility in DJ Harris Cases and
materials in international law 6ed (2004) at 504-05. For more details see: K Zemanek ‘Responsibility of
states: general principles’ in R Bernhardt (ed) Encyclopedia of Public International Law (EPIL), Volume
IV (2000), 219-229.
157
Chorzów Factory (Germany v Poland) (Merits), PCIJ (ser A) No 13, cited after DM Chirwa ‘The
doctrine of state responsibility as a potential means of holding private actors accountable for human
rights’ (2004) Melbourne Journal of International Law, Vol 5, 1 at p 4.
158
Chirwa (n 157) at p 4 and at p 5 in n 19 quoting Judge Huber in British Claims in the Spanish Zone of
Marocco (Spain v United Kingdom) (1923) 2 RIAA 615, at p 641: ‘Responsibility is the necessary
corollary of a right. All rights of an international character involve international responsibility.
Responsibility results in the duty to make reparation if the obligation in question is not met.’
159
Article 1 DARS (n 156).
160
The term conduct encompasses both acts and omissions.
27
conduct must be attributable to the state and must violate an international obligation of
the state.161 It is important to bear in mind that the concept of attribution ‘is a legal
fiction assimilating the [acts of the persons in question] to the state as if they were its
own.’162 It is generally accepted under customary international law that the conduct of
its ‘government … political sub-division[s] … organ[s] … and agent[s] … acting within
the scope of their employment’ is attributable to the state.163 The conduct of private
persons, however, is generally not attributable to their state of nationality.164 Exceptions
to this rule arise if the specific circumstances of a case demonstrate a link between a
private person’s conduct and the state, which justify an assumption that the private
conduct in fact equals that of the state.165
2.
Categorisation of states
For the purposes of this paper, states are categorised into Home States, Host States,
Contracting States and other states. The Home State of a PMC is the state in which it is
incorporated. The Host State refers to the state in which the PMC is operating. The
Contracting State is the one entering into a contractual relationship with the PMC, ie, the
state outsourcing military services to the corporation. Finally, there might be situations
in which states bear international obligations with respect to a PMCs without having any
of the above relationships to the PMC.166 This latter situation will not be addressed in
this paper.
161
Wallace (n 156) at p 176; Schröder (n 156) at p 542; art 2 DARS (n 156).
Wallace (n 156) at p 176; the term ‘imputability’ is commonly used to express that a conduct is
‘attributable’ to a state.
163
Wallace (n 156) at p 176; Schröder (n 156) at p 547; J Crawford The International Law Commission’s
Articles on State Responsibility (2002) at p 91; arts 4-7 DARS (n 156).
164
G Townsend ‘State responsibility for acts of de facto agents’ (1997) 14 Ariz J Int’l & Comp L 635,
639; Schröder (n 156) at p 548; G Sperduti ‘Responsibility of states for activities of private law persons’
in EPIL (n 156) at pp 216-17; Comment (1) on art 8 in ILC Commentary (n 156)
165
Townsend (n 164) at p 768 giving examples for possible links such as: approval, authorization,
awareness, complicity, control, support, tolerance, public nature of the act; Sperduti (n 164) pp 217-218
and Schröder (n 156) at p 548, both referring to negligent behaviour of the state; see also comment (1) on
art 8 in ILC Commentary (n 156) requiring a ‘specific factual relationship’ between state and private
conduct for the possibility of establishing imputability. Chirwa (n 157) at p 5.
166
Cf CUDH Report (n 125) at p 47 with the example of the obligation ‘under customary international law
to refrain from financing activities aimed at the “violent overthrow of the regime of another State.”’ The
(disputed) argument was made that the financing of a PMC by a state places the duty on the state to
regulate how such a PMC operates.
162
28
A state may qualify as Home, Host and Contracting State at the same time.167
However, the cases in which differing states fit into these categories are legally more
challenging.168
3.
Breach of international obligation
At first glance, obligations flowing from legal instruments specifically dealing with the
topic of armed conflicts are most likely to be violated when states commission PMCs to
perform military services. Therefore, those international principles and rules will be
addressed first which govern the legality of the recourse to armed force, the jus ad
bellum, and those which attempt to regulate the way in which the opposing parties
behave once an armed conflict has started, the jus in bello or international humanitarian
law (IHL). The principle of non-intervention and the laws of neutrality will be discussed
in this context. However, other obligations of states must also be considered, in
particular those based on international human rights law (HRL) and arms embargos.
(a)
Law on the recourse of force (jus ad bellum)
(i)
The prohibition on the use of force
The UN Charter
Today’s international law severely limits the cases in which a state is entitled to use
force against another state. The general prohibition on the use of force is enshrined in art
2(4) of the UN Charter:
‘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.’169
Only two exceptions to this rule are generally accepted, the use of force in selfdefence and the use of force authorized by the Security Council of the United Nations
(UN).170
167
For instance, when the US contracts the US PMC MPRI for the administration of the Reserve Officer
Trainings Corps (ROTC), see Singer, PMF-study (n 1) at pp 16, 121, 123, 156.
168
For instance when the US or Columbia contract US PMCs such as DynCorp and MPRI to support the
Columbian efforts in the ‘war on drugs’ within Columbia and, reportedly, during cross-border raids also in
the territory of other South American states; see Singer, PMF-study (n 1) at pp 206-209.
169
UN Charter of 26 June 1945.
170
The states’ right to unilaterally resort to force in self-defence (and collective self-defence) is stipulated
in art 51 of the UN Charter: ‘Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace and security. ….’ For more
details cf Harris (n 156) at pp 921-971. Under the UN Charter regime the Security Council is primarily
29
The prohibition on the use of force in art 2(4) of the UN Charter has achieved the
status of customary international law and therefore is binding also on non-members of
the UN.171 The term ‘force’ refers to the use of armed force, irrespective of whether war
has been declared or not.172 It does not encompass political or economic pressure.173
However, armed force does not have to be limited to one state directly invading another
with tanks, soldiers etc. Rather non-physical use of force with a destructive effect on the
opponents’ military infrastructure might also amount to ‘force’ in the sense of art 2(4) of
the UN Charter.174 For instance, military information operations might use computer
viruses to target and destroy the other side’s electronic equipment, thereby paralysing
entire military units.175
Furthermore, indirect means of using force are also prohibited.176 Guidance in
this regard is provided by the General Assembly’s 1970 Friendly Relations
Declaration.177 In the section dealing with the prohibition on the use of force one
paragraph reads:
‘Every State has the duty to refrain from organizing or encouraging the
organisation of irregular forces or armed bands, including mercenaries, for
incursion into the territory of another State.
Every State has the duty to refrain from organizing, instigating, assisting or
participating in acts of civil strife or terrorist acts in another State or acquiescing
in organized activities within its territory directed towards the commission of
such acts, when the acts referred to in the present paragraph involve a threat or
use of force.’
responsible ‘for the maintenance of international peace and security’ (art 24(1) UN Charter). Pursuant to
arts 39, 48 the Security Council may take binding measures once it has ‘determine[d] the existence of any
threat to the peace, breach of the peace, or act of aggression’. It is today widely accepted that art 42 of the
UN Charter permits the Security Councel to authorize the use of force by a state or groups of states. For
details cf Harris (n 156) at pp 972-1023.
171
ICJ Case concerning military and paramilitary activities in and against Nicaragua, judgment of 27
June 1986 (following: Nicaragua case), ICJ Reports 1986, 14, at para 190.
172
Harris (n 156) at p 890. M Bothe ‘Friedenssicherung und Kriegsrecht’ in Vitzthum (n 156) pp 589-668,
at pp 595-596, para 9.
173
Harris (n 156) at pp 890-891. Bothe (n 172) at pp 596-597, para 10, speaking of military force
(‘militärische Gewalt’).
174
Bothe (n 172) at p 597, para 10, and at p 634, para 65. ME Guillory ‘Civilianizing the force: is the
United States crossing the Rubicon?’ (2001) 51 A F L Rev 111at p 126 in fn 93 ‘Offensive [information
operations] that cause a destructive effect within the sovereign territory of another state would be an
armed attack under the law of armed conflict’ citing Walter G Sharp Sr Cyberspace and the use of force
(1999) Aegis Research Corp, at p 133.
175
For details on information operations and the prevalence of PMCs in this area of the US forces cf
Guillory (n 174) at pp 126-127.
176
Harris (n 156) at p 912 referring to the Nicaragua case (n 171).
177
GA Res 2625 (n 140). This resolution was adopted by a consensus vote, Milliard (n 40) at p 27.
30
These provisions reflect customary international law.178
The resolution on the definition of aggression
The fact that the prohibition on the use of force also encompasses indirect forms of force
is confirmed by the unanimously adopted resolution on the definition of aggression of
1974 which is also seen to reflect customary international law.179 Article 1 of the
resolution states that ‘[a]ggression is the use of armed force by a State against … another
State ….’ Of major importance in connection with the use of PMCs by a state is art 3(g)
of the resolution, whereby the following acts qualify as aggression:
‘The 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 the acts listed above, or its substantial involvement
therein.’
PMCs and the prohibition on the use of force and aggression
Provided that the conduct of the PMC is attributable to the state and amounts to an
unjustified use of armed force, the state might violate the prohibition on the use of force
in the sense of art 2(4) of the UN Charter.180 The state’s conduct might even constitute
an act of aggression as defined in resolution 3314.
This would be the case if the Contracting State commissions a Military Provider
Firm, such as the now defunct EO, with an attack on its neighbouring state, ie, if the
attacking state substitutes private troops for its state military. Subject to the condition
that the threshold of ‘force’ is met, the alleged cross-border operations of DynCorp from
the territory of Columbia into neighbouring states might also constitute a prohibited use
of armed force by Columbia and/or the United States.181 Another way of violating the
prohibition on the use of force could be the use of Military Support Firms in conducting
offensive information operations against other states.182 Furthermore, art 3(g) of
178
Armed activities in the territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ
judgment of 19 December 2005, available at http://www.icj-cij.org (following: Case concerning armed
activities in the Congo) at p 56, para 162; Nicaragua case (n 171) at para 191. Milliard, (n 40) at p 30.
179
GA Resolution 3314 (n 140). Article 1 one defines aggression as the ‘use of force by a State against the
sovereignty, territorial integrity or political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations, as set out in this Definition.’ Milliard (n 40) at p 30.
180
The prohibition on the ‘threat’ of force as embodied in art 2(4) of the UN Charter will not be addressed
in this paper. For more information cf Harris (n 156) at p 891.
181
For more details on these operations, see above n 168. Again, the attribution of DynCorp’s conduct is a
precondition, as is absence of ‘invitation’ of the respective Host State. As to the latter see Bothe (n 172) at
p 607, para 23.
182
See above nn 174, 175 and below n 262. In this context the PMC in question could also be categorized
as military provider firm.
31
resolution 3314 will be triggered in the rare cases in which PMCs’ employees can be
classified as ‘mercenary’.183 Arguably PMCs can be equated with ‘armed bands’ or
‘armed groups’ in the sense of art 3(g).184 In such cases the Home or Contracting State’s
obligations not to send such bands or groups which ‘carry out armed force against
another state’, or not to get substantially involved in such actions, might be violated.185
With respect to PMC operations, a lot will depend on the circumstances of each
individual case. Some cases will be relatively easy to judge, eg when the PMCs can be
regarded as ‘armed bands’ or ‘groups’, or their employees as ‘mercenaries’, and the state
contracts them to ‘carry out acts of armed force against another State’ or for ‘incursion’
into another state. Other cases will be more complex, eg those in which the obligations
of the PMC’s Home State are concerned in absence of a contractual relationship between
this state and the PMC.186 These issues will be addressed in more depth below.187
(ii)
The principle of non-intervention
The principle of non-intervention by one state in the affairs of another state has its roots
in the idea of sovereign equality of states as expressed, ia, in art 2(1) and 2(7) of the UN
Charter. This principle partly overlaps with the above prohibition on the use of force and
the definition of aggression.188 In other words, the ‘armed attack upon another State
annexing its territory is the ultimate form of intervention.’189 The principle of nonintervention, however, covers also weaker forms of interferences into the internal affairs
of another state.190 For instance, economic and political coercion may amount to
violations of the principle of non-intervention, as may armed incidences that do not
183
This will be the case only in rather exceptional cases, see above part II.4.
C Beyani / D Lilly (International Alert 2001) ‘Regulating private military companies: options for the
UK Government’, available at http://www.international-alert.org/publications/subject.php (visited: 2
October 2005) at p 21.
185
Beyani / Lilly (n 184) at p 21 with reference to R Higgins Problems and process: international law and
how we use it Oxford 1994, chapter 14 and pp 249-250 and Ian Brownlie International law and the use of
force by states, Oxford 1963, chapters XX, XXI, and XXIV. This problem will be addressed in more
detail below in part III.4 in the context of attributing conduct to states.
186
For instance, can the Home State’s attempt to regulate PMC activity by a domestic licensing regime
lead to a violation of obligations flowing from the prohibition on the use of force? In this context, can the
Home State’s licence for a specific PMC contract involving the use of force by the PMC in a Host State be
regarded as violating one of the provisions quoted above, eg, the interdiction of ‘encouraging the
organisation of … armed bands’ or ‘assisting or participating in acts of civil strife’ or ‘acquiescing in
organised activities within its territory directed towards the commission of such acts’?
187
See parts III.4 and 5 below.
188
Harris (n 156) at p 917, Nicaragua case (n 171) at pp 205-209.
189
Harris (n 156) at p 917.
190
Bothe (n 172) at pp 600-601, para 17.
184
32
reach the threshold of ‘force’ in the sense of art 2(4) of the UN Charter, or the support of
parties to an internal conflict where the support does not amount to an prohibited
indirect use of force.191
Several UN resolutions relate to the principle of non-intervention. Most
noteworthy, in this context, are the General Assembly’s 1965 Declaration on the
Inadmissibility of Intervention in the Domestic Affairs of States,192 and the previously
mentioned Friendly Relations Declaration.193 The section of the latter resolution dealing
with the principle of non-intervention and the substantive parts of the former declaration
are worded almost identically.194 Under these resolutions
‘[n]o State or group of States has the right to intervene, directly or indirectly, for
any reason whatever, in the internal or external affairs of any other State. ….
Also, no State shall organise, assist, foment, finance, incite or tolerate
subversive, terrorist or armed activities directed towards the violent overthrow of
the regime of another State, or interference in civil strife in another State. ….’195
The principle of non-intervention becomes particularly interesting in connection
with PMCs in such instances in which coercive measures are applied against a state
which fall short of ‘armed force’ in the sense of the prohibition on the use of armed
force. More importantly, since the prohibition on the use of armed force only applies in
the context of interstate conflicts, ie, at least two states must be involved, the principle of
non-intervention becomes a tool to regulate state’s interferences in other states internal
conflicts, especially by supporting rebel movements in ways that do not amount to
indirect ‘armed force’.196
191
Bothe (n 172) at p 596, para 10, and at p 598, para 11.
Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection
of their Independence and Sovereignty, GA Resolution 2131 (XX) of 12 December 1965, GAOR, 20th
Session, Supp 14, p 11; (1966) 60 AJIL 662. This resolution was adopted unanimously (109 votes to 0),
see Milliard (n 40) at p 23 and fn 132.
193
GA Resolution 2625 (n 140). This resolution was adopted by a consensus vote, Milliard (n 40) at p 27;
Harris (n 156), Appendix III, at p 1123. Other resolutions have a more restricted scope of application in
that they refer to the process of decolonisation including the use of mercenaries in this specific context,
see Milliard (n 40) at pp 24-38 for more details.
194
Harris (n 156) at p 917. This refers to paras 1-3 and 5 of the resolution 2131 (n 192).
195
See para 1 sentence 1 and para 2 sentence 2 of resolution 2131 (n 192) and paras 1, 2 of the section of
resolution 2625 (n 140) that deals with the principle of non-intervention; see also Case concerning armed
activities in the Congo (n 178) at p 56, para 162.
196
Cf art 3(g) of the resolution on the definition of aggression (n 140) ‘which carry out acts of armed force
… of such gravity as to mount to the acts listed above, ….’ Bothe (n 172) at p 597, para 11. See also the
Nicaragua case (n 171) at p 106, para 206, where the ICJ emphasised that the principle of nonintervention prohibits a State ‘to intervene, directly or indirectly, with or without armed force, in support
of an internal opposition in another State’. This was affirmed in the Case concerning armed activities in
the Congo (n 178) at p 56, para 164.
192
33
Given the very broad wording of the above mentioned resolutions, the extent to
which their content reflects customary international law is open to debate.197 There
seems to be agreement, however, that customary international law at the minimum ‘prohibits
a state “to intervene, directly or indirectly, with or without armed force, in support of an internal
opposition in another State”’198 Based on this statement of the IJC, one could argue that the
British government’s involvement in Sandline’s role during the 1997 ‘countercoup’ in
Sierra Leone amounted, ia, to a violation of the principle of non-intervention.199
However, as with the prohibition on the use of force, a generalized statement on
when states violate their obligation not to intervene in internal affairs of other states is
not possible.200
(iii)
Intermediate result
States are obliged not to interfere in the internal affairs of other states. Both forms of
interference, with and without the use of armed force, are prohibited even if they are
carried out indirectly. A cursory overview over these obligations indicates that states
might breach these obligations by using, or perhaps even by merely tolerating, PMCs.
However, much will depend on the circumstances of each case when it comes to the
question whether a state’s conduct amounts to an unlawful interference.
(b)
Laws of neutrality
The laws of neutrality govern the status of those states and its nationals which are not
party to a war in the sense of the neutrality laws.201 The main body of neutrality law was
codified at the Hague Peace Conference of 1907, with respect to war on land in the
Hague V Convention.202 This regulatory regime provides for the right of the neutral state
197
Milliard (n 40) at p 27 appears to argue that at least resolution 2625, as a whole, reflects customary
international law. However, his reference in fn 150 to the Nicaragua case (n 171) does not seem to fully
support his contention that the ICJ explicitly incorporated the resolution into customary international law.
Cf also, Frye (n 115) at p 2626 and fn 181. Criticism as regards the majority view on the prohibition of
intervention in the Nicaragua case (n 171) is expressed by Judge Ago in his separate opinion at paras 6, 7.
198
Case concerning armed activities in the Congo (n 178) at p 56, para 164, quoting the Nicaragua case
(n 171) at p 106, para 206.
199
See Appendix II of this paper (‘Sandline Affair’)
200
This paper will return to this matter below in parts III.4 and 5.
201
Cf Bothe (n 172) at p 653, para 103; Preamble to the Hague V Convention (n 116) As regards
individual neutrals cf arts 16-18 of the Hague V Convention.
202
See above n 116. For an historical overview see D Schindler and J Toman The Laws of Armed
Conflicts Martinus Nihjoff Publisher, 1988, at pp.942-947, with references to other important conventions
which, ia, regulate the treatment of neutral ships in times of war; cited after:
http://www.cicr.org/ihl.nsf/INTRO/200?OpenDocument (visited: 1 August 2006).
34
not to be affected by the belligerent parties.203 The flipside of this is the obligation not to
participate on the side of either belligerent and to remain impartial.204 In its essence, the
laws on neutrality attempt to constrain conflicts.205 Although state practice seems to pay
less attention to the laws on neutrality, particularly after the introduction of the UN
Charter system, the ICJ recently held that the principle of neutrality ‘is applicable
(subject to the relevant provisions of the United Nations Charter), to all international
armed conflict .…’206
In connection with PMCs, art 4 of the Hague V Convention might be relevant
which states that ‘[c]orps of combatants cannot be formed nor recruiting agencies
opened on the territory of a neutral Power to assist the belligerents.’207 Art 5 of Hague V
Convention prohibits states from allowing such acts ‘to occur on its territory.’ Yet, even
if PMCs could be equated to ‘corps of combatants’ or to ‘recruiting agencies’ the
obligations of the neutral state would remain severely limited for at least two reasons:
first, it is disputed when exactly the status of neutrality is triggered. More precisely, the
Hague Conventions of 1907, which reflect the customary international law of that
period, speak of ‘war’. Is it still necessary for the neutrality laws to become applicable
that a state of ‘war’ in a technical sense exists, including a declaration of war?208 Or has
the customary international law of neutrality developed to a status where the neutrality
laws are triggered by the mere existence of a conflict of a scale that calls for its
containment by legal means through the application of the laws of neutrality?209 Second,
the Hague V Convention itself limits the scope of applicability considerably. In
particular, a neutral state is not obliged to prevent individuals (whether nationals or
203
Cf arts 1-3 of the Hague V Convention (n 116). See Bothe (n 172) at pp 656-657, para 109.
Cf arts 4-10 of the Hague V Convention (n 116). See also Bothe (n 172) at pp 657-662, paras 110-119
205
It stipulates that the relationships between the belligerent state and the neutral state remain such as in
times of peace modified by the laws of neutrality pursuant to which, eg, the neutral state must accept
controls of its naval merchant ships; see Bothe (n 172) at p 653-654, paras 103-104. The neutrality laws
apply to both international and internal conflicts, cf Beyani / Lilly (n 185) at pp 22-23 with reference to the
Convention Concerning the Duties and Rights of States in the Event of Civil Strife of 1928, 134 LNTS 47,
and to the General Assembly resolutions 2625 and 3314 (n 140).
206
Legality of the threat and use of nuclear weapons case, judgment of 8 July 1996, ICJ Report 1996, 226
at pp 226 et seq, paras 88-90; available at: http://www.icj-cij.org/icjwww/icases/iunan/iunanframe.htm
(visited: 27 August 2006). See also Bothe (n 172) at pp 654 et seq, para 105.
207
Hague V Convention (n 116).
208
This position is maintained by some scholars and state organs, cf references in Bothe (n 172) at p 655,
para 107. As regards ‘war’ in the technical sense see Bothe (n 172) at p 695, para 9 with further
references. Also Beyani / Lilly (n 185) at p 21 pointing to the necessity of recognizing ‘belligerency’ in
the realm of the Convention Concerning the Duties and Rights of States in the Event of Civil Strife (n
205).
209
As argued by Bothe (n 172) at p 655, para 107.
204
35
aliens) from ‘crossing the frontier separately to offer their services to one of the
belligerents.’210
In sum, neutral states might find themselves in violation of the laws of neutrality
in connection with PMCs, in particular if one follows the view that advocates the
triggering of the neutrality regime by any armed conflict between states of a certain
duration and intensity, ie, irrespective of a declaration of war. In such cases, and
provided the PMC can be subsumed under ‘combatants’ or ‘recruitment agencies’,
Home States and/or Contracting States might fall within the scope of the neutrality laws.
For instance, MPRI’s involvement in the Balkans211 might have violated obligations of
the officially neutral United States vis-à-vis belligerent states in the region.212
(c)
International humanitarian law (jus in bello)
(i)
Introduction
International humanitarian law (IHL) serves the purpose of constraining the waging of
war, in particular, to limit the suffering of those affected by the armed conflict.213
Commonly, the Hague Conventions of 1899 and 1907,214 and the four Geneva
Conventions of 1949215 with their two Additional Protocols of 1977216 are associated
210
See art 6 of the Hague V Convention (n 116). Further limitations are contained in arts 7 and 8 explicitly
exempting states from duties of preventing the export of arms, weapons etc by or on behalf of either
belligerent, and from preventing the use on behalf of the belligerents of communication facilities such as
telegraphs. Cf also Singer, PMFs and international law (n 35) at p 526.
211
See Appendix II of this paper for details.
212
If one regards the conflict as an interstate and not merely internal one. In the words of Zarate (n 127) at
p 105: ‘Though understood to be a private agency, foreign governments also see MPRI as a quasi-official
U.S. military body whose services can represent tacit support by the U.S government.’ (footnote omitted)
213
F Kalshoven / L Zegveld Constraints on the waging of war: an introduction to international
humanitarian law 3ed (2001) (following: Kalshoven/Zegveld), at p 12; available at:
http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/section_publications_humanitarian_law (visited: 1
August 2006). Vernon (n 6) at p 400. Other terms for IHL include The Law of Armed Conflict (LOAC) or
The Law of War, see Guillory (n 174) in fn 13.
214
The conventions are accessible through the database of the International Committee of the Red Cross
(ICRC) at: http://www.cicr.org/ihl.nsf/INTRO?OpenView (visited: 1 August 2006). This paper will have
specific recourse to the 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, 18 October 1907, [following:
Hague IV Convention, Hague Regulations (resp)]
215
Geneva Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in
the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 (entered into force Oct. 21, 1950) [following:
Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded and Sick
and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3316 (entered into force Oct.
21, 1950) [following Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners
of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135 (entered into force Oct. 21, 1950) [following: Geneva
Convention III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug.
12, 1949, 6 UST 3516, 75 UNTS 287 (entered into force Oct. 21, 1950) [following Geneva Convention
36
with this body of law.217 However, the roots of IHL existed before the Hague
Conventions were adopted.218 What is more, IHL has developed around these main
treaties and, today, extends also into the fields of HRL and international criminal law.219
The main categories of actors which can be found in the area where hostilities take place
as well as some major principles and rules of IHL shall be introduced for a better
understanding of the following explorations.220
Applicability of IHL
In simple words, except for some provisions applicable in peacetime, the rules of IHL
are triggered by the factual existence of an armed conflict or by the occupation of
foreign territory, even if the latter does not meet armed resistance.221 Depending on
whether the armed conflict is of an international or merely internal character, IHL
provides rules for international armed conflicts and, less developed ones, for noninternational armed conflicts.222 Therefore, in examining potential violations of IHL, the
first steps would be to determine whether a factual situation meets the threshold of an
armed conflict223 and to decide whether this conflict is of an international or of an noninternational character.224 For the purposes of assessing the responsibility of states, the
paper will presume that this threshold is met and an armed conflict therefore exists.225
IV]; Conventions available at: http://www.cicr.org/ihl.nsf/CONVPRES?OpenView (visited: 1 August
2006).
216
Protocols Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of
Victims of International and Non-International Armed Conflicts, 12 December 1977, 1125 U.N.T.S. 3
(entered into force 7 December 1978) [following Protocol I (International Armed Conflicts) and Protocol
II (Non-International Armed Conflicts], available at: http://www.cicr.org/ihl.nsf/CONVPRES?OpenView
(visited: 1 August 2006).
217
Cf Kalshoven/Zegveld (n 213) at pp 19-36. Vernon (n 6) at pp 399-403.
218
Kalshoven/Zegveld (n 213) at pp 19-21. Vernon (n 6) at 401-402.
219
Kalshoven/Zegveld (n 213), Forword and pp 155-200.
220
For a more comprehensive introduction to IHL see Kalshoven/Zegveld (n 213) and Guillory (n 174) at
pp 113 et seq.
221
Common articles 2(1) and (2) of the Geneva Conventions (n 215); art 1(3) and (4) of the Protocol I (n
216); art 1 of the Protocol II (n 216). The determination of the existence of an armed conflict is based on
the factual situation alone, ie, in contrast to former times rules of IHL, apply irrespective of an official
declaration of war or the refusal by one of the parties to acknowledge the existence of a state of war. See
Bothe (n 172) at pp 632-633, para 62. G Porretto & S Vité ‘The application of international humanitarian
law and human rights law to international organisations’, Centre Universitaire de Droit International
Humanitaire, Research Paper Series No 1/2006, available at:
http://www.cudih.org/recherche/publication.php (visited: 13 August 2006) at p 32.
222
Rules applicable to an international armed conflict include the four Geneva Conventions (n 215) and
the Protocol I (n 216). Internal armed conflicts are addressed in common art 3 of the Geneva Conventions
and in the Protocol II (n 216).
223
Apart from the situation of occupation without armed resistance, of course.
224
Bothe (n 172) at pp 632-633, para 62.
225
Cf also part IV.4(c) below
37
Principle of distinction
IHL aims at limiting the devastating effects of armed conflicts, especially on civilians.
Consistent with this aim is the preeminent principle of IHL, namely the distinction
between combatants on the one hand, and noncombatants and civilians on the other
hand.226 Simply put, IHL distinguishes between those individuals who fight and those
who do not.227 Generally speaking, combatants are members of the ‘organised armies’,
whereas noncombatants comprise the ‘unarmed citizens’.228 This distinction was already
codified in the middle of the 19th century.229 Since then, IHL has developed different
categories of actors appearing in armed conflicts.230 Article 48 of the Protocol I restates
the rule of customary international law as follows:
‘In order to ensure respect for and protection of the civilian population and
civilian objects, the Parties to the conflict 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.’231
Combatants and Armed Forces
The determination of whether a PMC’s employee has combatant status under IHL is
crucial, for it is only an employee in this category that enjoys the right to participate
directly in the hostilities.232 This right is accompanied with the privilege of not being
prosecuted for the mere participation in the hostilities233 and the entitlement of Prisoner
226
Guillory (n 174) at p 113; Vernon (n 6) at p 404.
Vernon (n 6) at p 404.
228
Vernon (n 6) at p 404.
229
The distinction between combatants and noncombatants can be found as early as 1863 in the
Instructions for the Government of Armies of the United States in the Field (Lieber Code), art 155 of
which provides: ‘All enemies in regular war are divided into two general classes -- that is to say, into
combatants and noncombatants, or unarmed citizens of the hostile government.’ The Lieber Code is
available at: http://www.cicr.org/ihl.nsf/FULL/110?OpenDocument (visited: 1 August 2006). For an
historic overview see: Commentary Protocol I (n 121) at pp 585-588, paras 1822-1833.
230
Vernon (n 6) at p 404.
231
See also J-M Henckaerts / L Doswald-Beck Customary International Humanitarian Law Volume I:
Rules (2005) (following also: CIL Rules) at p 3 stating rule 1 as follows: ‘The parties to the conflict must
at all times distinguish between civilians and combatants. Attacks may only be directed against
combatants. Attacks must not be directed against civilians.’ For more details on the distinction between
civilian and military targets cf A Boivin / Y Sandoz ‘The legal regime applicable to targeting military
objectives in the context of contemporary warfare’, Centre Universitaire de Droit International
Humanitaire, Research Paper Series, No 2/2006, available at:
http://www.ucihl.org/research/publications.php (visited: 17 August 2006).
232
Vernon (n 6) at p 404; art 43(2) Protocol I.
233
CUDH Report (n 125) at p 14; Guillory (n 174) at p 114.
227
38
of War (POW) status.234 On the drawback side, combatants may be lawfully targeted at
all times.235 By contrast, civilians may be lawfully targeted only if and only for the time
in which they directly participate in the hostilities.236
Who enjoys combatant status? At the outset it is noteworthy that ‘[c]ombatant
status … exists only in international armed conflicts ….’237 Therefore, privileges and
protections flowing from combatant status only apply in international armed conflicts,
whereas internal armed conflicts are governed by different rules. For instance, domestic
law governs whether a direct participation in the hostilities of internal conflicts is
lawful.238
Article 43(2) Protocol I, defines combatants as ‘[m]embers of the armed forces
of a Party to the conflict (other than medical personnel and chaplains covered by Article
33 of the Third Convention)’. Similarly, Rule 3 of the CIL Rules states that ‘[a]ll
members of the armed forces of a party to the conflict are combatants, except medical
and religious personnel.’239
Defining ‘armed forces’ Article 43(1) Protocol reads:
‘The armed forces of a Party to a conflict consist of all organized armed forces,
groups and units which are under a command responsible to that Party for the
conduct or 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 conflict.’
234
Cf art 44(1) Protocol I (n 216). Article 4A(1) Geneva III (n 215); Guillory (n 174) at p 114; Vernon (n
6) at p 405. The statements by Vernon (n 6) at p 405 and Guillory (n 174) at p 114 are ambiguous in that
they seem to grant POW status only to those combatants who complied with IHL. In general, though,
combatants enjoy POW status even if they do not adhere to IHL. However, they may be prosecuted for
their war crimes. Cf see Kalshoven/Zegveld (n 213) at pp 61, 86-91; Art 85 Geneva Convention III (n
215). JS Pictet ICRC Commentary III Geneva Convention, Geneva 1960, at pp 413-416.
235
Guillory (n 174) at p 114; CIL Rules (n 231) Rule 1 at p 3.
236
Cf CUDH Report (n 125) at p 14. Article 51(2) and (3) Protocol I: ‘2. The civilian population as such,
as well as individual civilians, shall not be the object of attack… 3. Civilians shall enjoy the protection
afforded by this section, unless and for such time as they take a direct part in hostilities.’; Henckaerts CIL
Rules (n 231) Rule 6 at p 19: ‘Civilians are protected against attack unless and for such time as they take a
direct part in hostilities.’
237
CIL Rules (n 231) at p 11 commenting on Rule 3 and pointing out that it is admissible in the realm of
the principle of distinction to consider ‘members of State armed forces … combatants in both international
and non-international armed conflicts.’ See also comment on Rule 1, ibid, at p 3. Kalshoven/Zegveld (n
213) at p 134.
238
CIL Rules (n 231) comment on Rule 3 at p 13.
239
CIL Rules (n 231) at p 11.
39
The decisive element in art 43(1) for attaining the status of ‘armed forces’ is the
‘command responsibility’ to the Party of the conflict. Article 43 (1) reflects customary
international law.240
Whether PMCs can be regarded as ‘armed forces’ and its employees as
‘combatants’ is decisive for determining whether employees
•
may participate directly in hostile operations,
•
may be lawfully targeted
•
are entitled to POW treatment.
Prisoner of War
Article 4 of the Geneva Convention III grants POW status to the following categories of
captured enemies:241
‘(1) Members of the armed forces of a Party to the conflict as well as members of
militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and … other volunteer corps, … belonging to the
party of the conflict …, provided that such militias or volunteer corps, …, fulfil
the following conditions:
(a)
that of being commanded by a person responsible for his subordinates;
(b)
that of having a fixed distinctive sign recognizable at a distance;
(c)
that of carrying arms openly;
(d)
that of conducting their operations in accordance with the laws and
customs of war.
…
(4) Persons who accompany the armed forces without being actually being
members thereof, such as civilian members of military aircraft crews, …, 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 ….’
Article 44 of the Protocol I eases the conditions for the status of POWs. Any
combatant captured by the opponent enjoys POW status except when he fails to
240
This is reaffirmed by Rule 4 of the CIL Rules (n 231) at p 14: ‘The armed forces of a party to the
conflict consist of all organised armed forces, groups and units which are under a command responsible to
that party for the conduct of its subordinates.’ Ibid at pp 15-16 regarding the development of this rule,
starting with art 1 of the Hague Regulations (n 214) over art 4 of the Geneva Convention III (n 215) to arts
43 and 44 of the Protocol I (n 216). The Commentary Protocol I (n 121) summarizes at p 517, para 1681,
the cumulative conditions for the direct participation in hostilities as follows: ‘a) subordination to a “Party
to the conflict” which represents a collective entity which is, at least in part, a subject of international law;
b) an organization of a military character; c) a responsible command exercising effective control over the
members of the organization; d) respect for the rules of international law applicable in armed conflict.’
241
For an historical overview and detailed comments, see: Pictet (n 234) at pp 44-67.
40
distinguish himself ‘from the civilian population while [he is] engaged in an attack or in
a military operation preparatory to an attack.’242
Non-combatants and Civilians
Only medical personnel and chaplains are non-combatants in the technical sense of the
Geneva Conventions and the Protocol I.243 Civilians, however, are often equated with
non-combatants.244 Civilians are defined either negatively as being ‘persons who are not
members of the armed forces’245 or ‘any person who does not belong to one of the
categories of persons referred to in Article 4(A)(1), (2), (3) and (6) of the Third
Convention and in Article 43 of this Protocol’,246 or by reference to common art 3 of the
Geneva Conventions as ‘[p]ersons taking no active part in the hostilies’.247
Non-combatants, including combatants hors de combat, are entitled to POW
status.
248
Civilians enjoy special protection and treatment under the Geneva Conventions
and the Protocols.249 Neither category is entitled to participate directly in the hostilities
or it forfeits its special privileges and protections.250
Civilians accompanying the armed forces in the sense of art 4(4) of the Geneva
Convention III enjoy a special status. They are not members of the armed forces and
therefore not combatants. Yet, IHL takes cognisance of their closer relation to the armed
forces and their proximity to the battlefield in that it grants these civilians POW status in
the event of capture.251 Like normal civilians, however, they are not allowed to
242
Article 44(3) even exempts combatants from the requirement of distinction from the civilian population
as long as they carry arms openly in the situations described in art 44(3). Article 44 with its lesser
preconditions for the status of POW ‘is aimed at increasing the legal protection of guerrilla fighters as far
as possible, and thereby encouraging them to comply with the applicable rules of armed conflict, without
at the same time reducing the protection of the civilian population in an unacceptable manner.’ See
Commentary Protocol I (n 121) at p 520, para 1625. However, as paras 6-8 of art 44 clarify, it is not to be
construed to affect the rights of individuals to be POW pursuant to art 4 of the Geneva Convention III, to
change the practice of states with respect to the wearing of uniforms of their armed forces, and to affect
the protection of the wounded, the sick and the shipwrecked.
243
Vernon (n 6) at 406; art 43(2) Protocol I; see also art 33 Geneva Convention III (n 215).
244
Guillory (n 174) at p 115.
245
CIL Rules (n 231) Rule 5 at p 17.
246
Article 50(1) Additional Protocol I (n 216).
247
Vernon (n 6) at p 405.
248
Article 4(1) Geneva Convention III (n 215), art 44(6) Additional Protocol I (n 216), Guillory (n 174) at
p 115.
249
Vernon (n 6) at pp 405-406; cf Geneva Convention IV (n 215) and arts 51 et seq Additional Protocol I
(n 216).
250
Vernon (n 6) at pp 405-406. CIL Rules (n 231) at p 19, Rule 6.
251
Kalshoven/Zegveld (n 213) at p 52. Guillory (n 174) at p 115-116 also commenting on the
classification of ‘civilians accompanying the armed forces’ as ‘quasi-combatants’. See also Vernon (n 6)
41
participate directly in hostilities.252 It is disputed whether civilians accompanying the
armed forces lose their POW entitlement upon contravening this prohibition.253
Direct participation in hostilities
Employees of PMCs who cannot be regarded as combatants fall into the category of
civilians or, as the case may be, civilians accompanying the armed forces. They are
prohibited from directly participating in the hostilities. Taking into account the
consequences of contravening this prohibition, the determination of what conduct
amounts to a direct participation in hostilities (DPH) is of utmost importance for PMCs,
since their employees become lawful targets whilst directly participating in the
hostilities, and can be prosecuted under domestic law for such participation.254 From the
viewpoint of a state, such determination is important mainly because the targeting of
noncombatant PMC employees not directly participating in the hostilities may give rise
to the state’s international responsibility.255
What conduct constitutes DPH is disputed. The participants of an ongoing series
of expert seminars co-hosted by the ICRC with the aim of clarifying the notion of DPH
recently agreed ‘that it was not feasible to come up with an abstract definition that would
cover all conceivable instances of “direct participation in hostilities”, whether or not it
was accompanied by a non-exhaustive list of examples.’256 Against this background, this
at p 406; Commentary Protocol I (n 121) at p 515, para 1677 ‘All members of the armed forces are
combatants, and only members of the armed forces are combatants. This should therefore dispense with
the concept of “quasi-combatants” …. A civilian who is incorporated in an armed organization such as
that mentioned in [Article 43] paragraph 1, becomes a member of the military and a combatant throughout
the duration of the hostilities …, whether or not he is in combat, or for the time being armed. If he is
wounded, sick or shipwrecked, he is entitled to the protection of the First and Second Conventions …, and
, if he is captured, he is entitled to the protection of the Third Convention ….’ (footnote omitted).
252
CUDH Report (n 125) pp 15-17; Vernon (n 6) at pp 411-412; art 51(3) Protocol I (n 216).
253
Cf discussion in CUDH Report (n 125) at pp 15-17, ia referring to the recent stance taken by the US
which opposed the loss of POW status due to direct participation in hostilities. The experts cited in the
CUDH Report (n 125) at p 17 agreed that the direct participation causes the loss of the POW status.
254
As Guillory (n 174) in fn 34 points out: ‘The prohibition against direct participation in hostilities
applies to all civilians, regardless of location. Legally, there is no difference between a civilian
accompanying the force directly causing harm to the enemy and a civilian doing so from a thousand miles
away.’ Insecurity not only exists with respect to the preconditions of a direct participation in hostilities but
also in relation to the consequences of a direct participation. Cf ICRC 2002 Report (below n 256), part III,
pp 6-9.
255
State responsibility might also arise in other circumstances in which the state does not grant
noncombatant PMC employees the protection and privileges they are entitled to as civilians (eg POW
status according to art 4(4) Geneva Convention III).
256
The ICRC co-organized the seminars with the topic under the heading ‘Direct participation in
hostilities under international humanitarian law’ together with the TMC Asser Institute. Three reports have
been published by the ICRC so far: the first in 2003 (ICRC 2003 Report), the second in 2004 (ICRC 2004
42
paper will not attempt to provide a conclusive definition or even in depth assessment of
the details of what might or might not amount to DPH.257
The definitions suggested in the ICRC commentary to the Protocol I may serve
as a working basis. It is suggested that ‘hostilities’ refers to ‘acts which by their nature
and purpose are intended to cause actual harm to the personnel and equipment of the
armed forces.’258 According to the same commentary ‘”direct" participation means acts
of war which by their nature or purpose are likely to cause actual harm to the personnel
and equipment of the enemy armed forces.’259
It seems undisputed that a civilian working in the ammunition factory does not
fulfil the requirements for DPH.260 On the other hand, the immediate killing, injuring,
capturing of members of the adversary forces, or the immediate destruction of its
military equipment is regarded as amounting to DPH.261 The area in between is more or
less a grey-zone.262 If PMCs are involved, the situation is aggravated because many of
the tasks now performed by them were formerly performed by military personnel.263
Report), the third in 2005 (ICRC 2005 Report). All reports and a ICRC Summary of these are available at:
http://www.icrc.org/web/eng/siteeng0.nsf/html/participation-hostilities-ihl-311205?opendocument
(visited: 16 August 2006). As regards the quotation, cf ICRC 2005 Report at p 85.
257
The discussion of the experts revolved around four elements which might be relevant for determining
DPH: the definition of hostilities, the nexus to the armed conflict, the causal proximity to the harmful
consequences, and the hostile intent. Cf ICRC Reports on this issue (n 256) and the Final Report or
Guideline expected to be published by the end of 2006.
258
Commentary Protocol I (n 121) at p 618, para 1942.
259
Commentary Protocol I (n 121) at p 619, para 1944. Seemingly narrower the definition at p 516, para
1679, whereas ‘[d]irect participation in hostilities implies a direct causal relationship between the activity
engaged in and the harm done to the enemy at the time and the place where the activity takes place.’
Precisely when a chain-of-causality is interrupted to the effect that the participation of the an individual
must be regarded as not being ‘direct’, remains one of the unresolved questions. Cf ICRC 2005 Report (n
256) at pp 26-36.
260
Guillory (n 174) at pp 119-120. ICRC 2004 Report (n 256) at p 7. There is widespread accord that
contributions by civilians to the general war efforts of a party do not constitute DPH, cf Commentary
Protocol I (n 121) at p 619, para 1945.
261
Guillory (n 174) at pp 119-120. ICRC 2004 Report (n 256) at p 7.
262
The grey-zone exists even if DPH is discussed in contexts which do not involve PMCs, as evidenced
by the ICRC Reports on the seminar series (n 256) according to which the deliberations on the PMC
industry and their specific problems only constituted a minor part of the discussions. Yet, many of the
general problematic activities also relate to PMCs including: support and logistics, intelligence gathering
and information operation including computer network attacks, recruitment and training to engage in
DPH. For more details cf ICRC Reports (n 256), especially ICRC 2004 Report at pp 3-10 and Guillory (n
174) at pp 137-142 discussing most of these issues in the context of his suggested definition on DPH.
Another unclear area is the temporal scope of the loss of the protection as a civilian due to DPH, the
‘revolving-door’ phenomenon. Cf art 51(3) Protocol I (n 216)and ICRC 2005 Report (n 256) at pp 59-68.
263
As shown in part II, ia, the supply, logistics, maintenance, information and intelligence sectors of the
US forces are highly dependent on PMCs. Moreover, the training of a state’s own and of foreign forces
has been outsourced to a large extent, too. Yet, the phenomenon is not restricted to the US, as also
indicated in part II. Cf also ICRC 2005 Report (n 256) at pp 69-73.
43
Moreover, the sophisticated modern weapons technology has boosted the need for
‘cradle-to-grave’ support by specialists even in the immediate combat zone, a
development not foreseen by the drafters of the current conventional IHL.264
What constitutes DPH in a specific situation will continue to be determined by a
case by case evaluation of the specific facts. Any guideline aimed at facilitating this
determination265 must be simple enough to be practicable, for commanders and soldiers
on the ground often face a situation calling for a ‘split-second’ decision whether a
situation of DPH exists (and the civilian may be directly attacked and killed), or not
(with the consequence that a law-enforcement approach is required).266 On the other
hand, a guideline must adhere to the principle of distinction and the immunity of
civilians from direct attack.267 It appears that both aims would be furthered by
construing DPH narrowly.
(ii)
Obligations of the occupying power
If one party to the conflict occupies territory of another party, IHL establishes a legal
regime with specific rights and duties of the occupying power.268 In the context of
PMCs, those rules that oblige the occupying power ‘to ensure’ the ‘safety’ of the
population in the occupied territory are of particular interest.269 In the words of the ICJ:
‘The Court, having concluded that Uganda was an occupying Power in Ituri at
the relevant time, finds that Uganda’s responsibility is engaged both for any acts
264
Guillory (n 174) at p 120. Presentation by E Gillard in ICRC 2005 Report (n 256) at p 71.
The result of the ICRC expert seminars is expected to be published in this form by the end of 2006, cf
ICRC 2005 Report (n 256) at p 85.
266
One example for such a ‘split second’ decision could be the question whether a human shield is acting
voluntary or involuntary. It has been posited that, the acting as voluntary human shields constitutes DPH
with an ensuing loss of civilian immunity. For instance, the Somali woman mentioned by one of the
experts in the ICRC 2004 Report (n 256) at p 7 might be regarded as voluntary human shield or coerced
human shield. This woman dressed in a wide gown shielded shooting fighters which were following her
while she was walking across the street.
267
For instance, articles 48 and 51(1)-(3) Protocol I and 13 Protocol II (n 256).
268
Cf Section III, arts 42-56 of the Hague Regulations (n 214). Article 42 defines occupation: ‘Territory is
considered occupied when it is actually placed under the authority of the hostile army. The occupation
extends only to the territory where such authority has been established and can be exercised.’ According
to the ICJ this rule reflects customary international law, Case concerning armed activities in the Congo (n
178) at p 59, para 172. See also Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, advisory opinion, ICJ Reports 2004, at p 167, para 78, and p 172, para 89.
269
Article 43 of the Hague Regulations (n 214): ‘The authority of the legitimate power having in fact
passed into the hands of the occupant, the latter 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.’ See also part III, arts 27-34 of the Geneva Convention IV (n 215), in particular art
27(1) sentence 2 which stipulates that protected persons in the territories of the parties to a conflict and the
occupied territories ‘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.’
265
44
of its military that violated its international obligations and 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.’270
This rule could provide a basis for the responsibility of the occupying power for
the conduct of PMCs’ employees even if such conduct were not attributable to the state.
(iii)
Obligations in connection with prisoners of war
IHL sets forth detailed rules on how to treat POWs.271 In particular, POWs ‘must at all
times be humanely treated.’272 What is more, ‘prisoners of war must at all times be
protected, particularly against acts of violence or intimidation and against insults and
public curiosity.’273
In connection with PMCs and POWs, states could become responsible in two
situations. First, conduct of PMCs which are used to guard POWs or to interrogate them
might interfere with the rights and freedoms of POWs in the physical power of these
PMCs.274 Second, a state under an obligation to treat prisoners in accordance with IHL
might deny POW status to captured employees of PMCs although the specific
circumstances would call for the granting of such status.
(iv)
Obligations in connection with the principle of distinction
As indicated above, the parties to a conflict must distinguish between combatants and
military objects on the one side, and civilians and civilian objects on the other side.275 In
simple words, while the former may be targeted, ‘the latter must be spared as much as
possible.’276
State responsibility may arise in situations in which employees of a PMC are
protected as civilians but nevertheless indiscriminately attacked by the state’s forces.
270
Case concerning armed activities in the Congo (n 178) at p 60, para 179.
Cf Geneva Convention III (n 215), and arts 44 and 45 Protocol I (n 216).
272
Article 13 Geneva Convention III (n 215).
273
Article 13 Geneva Convention III (n 215).
274
The international responsibility for the treatment of POWs rests on the detaining ‘Power’ in the sense
of detaining party to the conflict, cf art 12 Geneva Convention III (n 215). An example could be found in
the Abu Ghraib prison scandal where employees of Titan and Caci were accused of torturing and killing
prisoners. Cf US District Court for the Southern California Al Rawi et al v Titan Corporation, Caci
International Inc et al, class action claim, available at
http://www.mirkflem.pwp.blueyonder.co.uk/pdf/alrawititan60904cmp.pdf (visited: 13.04.2006).
275
See previous part III.3(c)(i). Further, CIL Rules (n 231) at p 25, Rule 7. Articles 51, 52 of the
Additional Protocol I (n 216).
276
Cf Resolution of the XXth International Conference of the Red Cross of 1965, cited after Commentary
Protocol I (n 121) at p 509, para 1665.
271
45
Conversely, the indiscriminate attack against civilians by a PMC could result in state
responsibility, too.277
(d)
Other obligations
(i)
International humanitarian law
The obligations of IHL which might be breached by a state using PMCs are not
restricted to those contained in the Geneva Conventions I and II and the Additional
Protocol I. Obviously, PMCs can also interfere with obligations concerning the
protection of the wounded, sick and shipwrecked,278 or arising in internal armed
conflicts.279
(ii)
International human rights law
States may incur responsibility under international law for the violation of HRL.280 In
the context of PMCs this is most likely to happen if their employees interfere with
somebody’s human rights, eg the right to live or the right to freedom from torture, and
this conduct is attributable to the state. Alternatively, the state might be responsible for
violating HRL even if the conduct is not attributable to the state, in particular if the state
were under an obligation to ensure that violations of HRL are not committed by private
actors.281
(ii)
Arms restriction and arms embargos
Restrictions in the trade in and the use of arms,282 including arms embargos,283 might
form the basis for state responsibility when PMCs are used to circumvent such
restrictive laws and embargos.284
277
Cf Appendix II of this paper regarding the accusations levelled at EO.
Guaranteed in the Geneva Conventions I and II (n 215).
279
Arising, in particular, under common art 3 of the Geneva Conventions (n 215) and under the Additional
Protocol II (n 216).
280
Chirwa (n 157) at pp 9-11, 14 discusses and convincingly affirms the applicability of the general rules
of state responsibility to human rights cases, subject to the principle of speciality as laid down in art 55
DARS (n 156).
281
Both issues will be dealt with in more detail in parts III.4 and 5.
282
For an overview see Bothe (n 172) at pp 624-629, paras 52-55.
283
For an introduction into the purposes of arms embargos, cf MS Smith ‘Arms Embargo’ in Beyond
Intractability (Eds Guy Burgess and Heidi Burgess) Conflict Research Consortium, University of
Colorado, Boulder. Posted: November 2003, available at:
http://www.beyondintractability.org/essay/arms_embargo/ (visited: 2 August 2006). A recent example for
an arms embargo is the one imposed by the Council of the European Union on the Ivory Coast in
December 2004 which also encompassed ‘the provision of any assistance, advice or training related to
278
46
(iii)
Principle of permanent sovereignty over natural resources
This principle of customary international law is reflected in the 1974 General Assembly
Resolution 3201.285 It guarantees ‘[t]he rights of peoples and nations to permanent
sovereignty over their natural wealth and resources’.286 One could imagine a violation of
this right by the looting, pillaging and exploiting of certain natural resources by PMC
employees. Yet, the ICJ has recently held it ‘does not believe that this principle is
applicable to this type of situation.’287 Another situation therefore might be more likely
to violate the principle, namely the pledging of natural resources by a ‘weak’ illiquid
state to remunerate the services of the PMC.288
(iv)
Mercenary laws
The improbability of PMCs or their employees falling under the existing laws on
mercenarism has already been shown.289 Obviously, in the rare cases that employees can
be subsumed under the definition of mercenary, state responsibility could arise,
particularly if the UN Mercenary Convention is applicable.290
military activities, and on equipment which might be used for internal repression in Ivory Coast.’ For
details see notice 3/05 of the UK Department for Trade and Industry (DTI), available at:
http://www.dti.gov.uk/europeandtrade/strategic-export-control/sanctions-embargoes/bycountry/page9101.html (visited: 2 August 2006).
284
As in the ‘Sandline Affair’. See Appendix II of this paper and Singer, PMF-study (n 1) at pp 115, 213.
285
Resolution on the permanent sovereignty over natural resources, GA Resolution 1803 (XVII) of 14
December 1962, GAOR, 17th Session, Supp 17, p 15. The status as customary international law was
recently confirmed in the Case concerning armed activities in the Congo (n 178) at p 77, para 244. See
also Harris (n 156) at p 578. The later GA Resolution 3171 (XXVIII) of 1973, GAOR, 28th Session, Supp
30, p 52, the Declaration on the Establishment of a New International Economic Order 1974, GA
Resolution 3201, (1974) 13 ILM 715, and the Charter of economic rights and duties of states 1974, GA
Resolution 3281 (XXIX), (1975) ILM 251 elaborate on this principle. However, their status of customary
international law is disputed, cf Harris (n 156) at pp 580-581.
286
Cf art 1 of resolution 1803 (n 285).
287
Case concerning armed activities in the Congo (n 178) at p 77, para 244, where the Court referred to
such behaviour ‘by members of the army of a State military intervening in another State’.
288
Again, the example of EO must be cited. Its corporate connections into the mining sector (eg the
Branch Heritage group) are well known. Reportedly, the Government of Sierra Leone pledged ‘diamond
mining concessions in the Kono region’ to finance EO’s startup fee, cf Singer, PMF-study (n …) at p 112
and Appendix II of this paper.
289
See above part II.4.
290
Cf arts 5, 6 and 16 of the UN Mercenary Convention (n 120). By contrast, the mere fulfilment of the
requirements of art 47 Protocol I (n 215) and the attribution of such ‘mercenary’ conduct to the state does
not entail, per se, the responsibility of the state under international law. Article 47 only withholds POW
status to persons falling under the definition. It does not, however, prohibit the use of mercenaries by
states!
47
4.
Where PMC conduct is attributable to a state291
(a)
Introduction
Rules governing the attribution of private conduct to a state could be found in treaties,
international customary law, general principles of international law, and, as subsidiary
means, in courts’ decisions and publications of well recognized authors.292
As regards treaties, no treaty exists stating in general what conditions have to be
met in order to attribute private conduct to a state.293 General provisions addressing the
issue can be found in Chapter II of the ILC Draft Articles.294 Yet, it is important to note
that the Draft Articles are not a treaty and, therefore, not a source of law.295 ‘The ILC
articles and commentary instead are evidence of a source of law.’296 Though the Draft
Articles contain both a codification of existing rules and a progressive development of
international law,297 where the attribution of acts to a state is concerned (articles 4 – 11),
they are perceived to be ‘traditional and reflect a codification rather than any significant
development of the law.’298 Thus they may serve as ‘starting points’ for assessing
responsibility for private conduct or for conduct mixing state and nonstate actors.299
291
The approach of differentiating between attributable and non-attributable conduct is also applied by the
Centre Universitaire de Droit International Humanitaire in its CUDH Report (n 125).
292
Article 38 Statute of the International Court of Justice (n 134).
293
As indirectly evidenced by the judgments of international courts that are described in greater detail
below in part III.4 and in which the courts did not examine such treaties.
294
ILC Draft Articles on the Responsibilities of States (n 156) (DARS). For example art 8 and art 11 deal
with the attribution of private conduct to the state.
295
DD Caron and JR Crook ‘The ILC articles on state responsibility: the paradoxical relationship between
form and authority’ (2002) 96 Am J Int’l L 857, 867-868. The Draft Articles neither have the authority of
treaties nor may they be construed like treaties, ibid at pp 867-870, 872 stressing, inter alia, that it would
be inappropriate to apply the VCLT 1969 (n 123).
296
Caron and Crook (n 295.) at p 867. the ILC had been working on its Draft Articles since 1956 before
finally adopting them in 2001. For an overview on the history of the Draft Articles see J Crawford ‘The
ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: a retrospect’ (2002) 96 Am J
Int’l L 874 et seq. On 12 December 2001 the UN General Assembly in its Resolution 56/83 ‘…
commend[ed the articles] to the attention of Governments without prejudice to the question of their future
adoption or other appropriate action.’ cited in D Bodansky and R Crook ‘Symposium: the ILC’s state
responsibility articles: introduction and overview’ (2002) 96 Am J Int’l L 773; (GA Res 56/83 available at
http://www.un.org/docs (visited on 11 October 2005)). The influence of the Draft Articles is apparent
since they have already been used, inter alia, in arguments before international courts, and in decisions of
arbitrary bodies and the ICJ, see Crawford ibid at p 889, also Harris (n 156) at p 505.
297
Bodansky and Crook (n 295) at p 773.
298
Bodansky and Crook (n 295) at p 783. The Draft Articles concern the secondary rules of state
responsibility not the primary ones. Therefore they do not define the international obligations themselves
whose breach could give rise to state responsibility. Rather they state the general conditions under
international law regarding state responsibility and its consequences, see comment (1) preceding Part One
in ILC Commentary (n 156). The Draft Articles do not apply if and to the extend a lex specialis exists (see
art 55 DARS).
299
Bodansky and Crook (note 295) at p 783.
48
(b)
Article 4 DASR ‘state organ’
Article 4 is a restatement of the basic rule that a state is responsible for the conduct of all
of its organs.300 It is to be construed broadly and covers conduct of any ‘individual or
collective entities which make up the organization of the State and act on its behalf.’301
In particular, it comprises ‘all acts and omissions of [the state’s] own military forces’,
irrespective of ‘whether the … personnel acted contrary to instructions given or
exceeded their authority.’ This was recently confirmed by the ICJ.302
Against this background, the conduct of PMC employees would be attributable
to the Contracting State if they were ‘combatants’ of this state.303 This would be the case
if the PMC constituted or formed part of the ‘armed forces’ and the Contracting State
were party to the armed conflict.304 For the PMC’s to be considered armed forces, three
requirements must be met: ‘a measure of organisation, a responsible command, and an
internal disciplinary system designed notably to ensure compliance with the written and
unwritten rules of armed conflict.’305
The requirement of organization is understood to be ‘flexible’. What is necessary
is a ‘collective character’ of the hostilities which must be ‘under proper control and
according to rules, as opposed to individuals operating in isolation with no
corresponding preparation or training.’306 PMCs are likely to meet these elements, for
they are ‘organized within the defined structures of a corporate entity. They are
specifically grouped so as to operate with a set doctrine and greater cohesion of activity
and discipline.’307
300
See above part III.1. Article 4(2) requires an assessment of a state’s internal law and practice to
determine what constitutes an ‘organ’ in the sense of art 4(1) is. For details regarding art 4 see comments
to art 4 in ILC Commentary (note 156) at pp 84-92.
301
See comments (1) and (6) to art 4 in ILC Commentary (n 156) at p 84 and pp 85-87.
302
Case concerning armed activities in the Congo (n 178) at p 60, para 180 and at p 69, paras 213- 214, in
the latter para referring to art 3 of the Fourth Hague Convention (n 214) and para 91 of the Protocol I (n
216). Cf also below part III.4(f). Arguably, art 91 Protocol I can be regarded as lex specialis to art 4
DARS so that pursuant to art 55 DARS the responsibility of a state would be determined according to art
91, at least for violations of IHL. This paper aims at providing a more general overview on state
responsibilities and will therefore assess the attribution of conduct pursuant to art 4 DARS.
303
As to combatants see above part III.1. See also CUDH Report (n 125) at pp 11-13 discussing and
affirming the possibility of PMC employees being combatants.
304
As to armed forces see above part III.1. PMCs could be considered as constituting the armed forces of a
state if this states does not have an army of its own, eg Costa Rica. If the PMC supplements a state’s army
it could be considered as forming part of that army. Cf discussion in CUDH Report (n 125) at pp 11-14.
305
Kalshoven/Zegveld (n 213) at p 87.
306
Commentary Protocol I (n 121) at p 512, para 1672.
307
Singer, PMF-study (n 1) at p 47.
49
As indicated above,308 the crucial question is whether the PMC is under a
responsible command, whereby the requirement of an internal disciplinary system works
as supplementary to this command responsibility.309 The answer to this question will
depend on how this command responsibility is construed and, obviously, on the
circumstances of the individual case. The decisive prerequisite for the PMC being under
a responsible command to the Contracting State is the effective subordination to the
hierarchical command structure of the Contracting State, ‘without exception, for it is not
permissible for any group to wage a private war.’310 The requirement of an internal
disciplinary system comprises military disciplinary and penal laws, and aims at
establishing and maintaining such subordination, thereby ensuring compliance with the
IHL.311
The foregoing prerequisites clarify that the mere contractual relationship between
the Contracting State and the PMC is insufficient to make the PMC a part of the armed
forces, for the contract alone neither integrates the PMC and its employees into the
military chain-of-command, nor subordinates them to military disciplinary and penal
laws.312 What would be necessary in addition to clear and precise contractual provisions
is the amendment of the Contracting State’s laws to the effect that they subordinate
PMCs and their employees under the military chain-of-command and all relevant
military laws.313 While it is not unthinkable that states will meet these conditions in the
future, current state praxis clearly tends to place PMCs and their members outside the
chain-of-command and disciplinary and penal laws.314 Under such circumstances, PMCs
308
See above part III.1.
CIL Rules (n 231), rule 4, at p 16.
310
Commentary Protocol I (n 121) at p 512, para 1673.
311
Article 43(1) of the Protocol I. Commentary Protocol I (n 121) at pp 512-514, para 1675.
312
Cf CUDH Report (n 125) at pp 13-14. This is clearly the situation in the US as described above in part
II.3(b). See also the contract between Sandline and Papua New Guinea (PNG): Under the heading
‘Responsibilities of the State’ the enrolment of Sandline personnel as Special Constables of the state was
provided for with Sandline personnel entitled to hold military ranks commensurate to their rank in the
Sandline structure. Sandline personnel was entitled to give orders to junior ranks and the PNG was to
ensure full cooperation. Yet, already the contract ensured that Sandline personnel remained outside the
state’s chain-of-command, for operational deployment of Sandline personnel and equipment was ‘to be
jointly determined by the commander, PNG defence forces and Sandline’s commander, taking account of
their assessment of the risk and value thereof.’ Cf Appendix II of this paper ‘Operations Contravene’.
313
Cf CUDH Report (n 125) at p 14.
314
As regards the situation of PMCs in the US forces see above part II.3(b). CUDH Report (n 125) at p
11-12, ia, referring to severe limitations in the jurisdiction of the UK over members of PMCs.
309
50
could not be considered to constitute or form part of the armed forces. Consequently,
their employees could not be regarded as combatants.315
A brief word is needed on ‘militias’ and ‘volunteer corps’ which do not
constitute or form part of the organized armed forces of the Contracting State.316 The
conduct of PMC employees would not be attributable to the Contracting State pursuant
to art 4 DARS, even if PMCs constituted or formed part of such militias or volunteer
corps and even if they fulfilled the requirements set forth in art 4(2) of the Geneva
Convention III. The reason for this is that the militias and volunteer groups do not form
organs of the Contracting State. They ‘belong to the Party to the conflict’ in the sense
that there must be, at the minimum, ‘a de facto relationship between the [organization]
and the party to [the international armed conflict].317 Nevertheless, they remain outside
the state’s organisation. This becomes evident by comparing the requirement of art
4(2)(a) of the Geneva Convention III, ‘that of being commanded by a person responsible
for his subordinates’ to the requirement of having a ‘command responsible to the
Party’318 While the chain-of-command in the former case ends with the person
ultimately responsible to the militia or volunteer corps, the latter extends to the party
itself thus providing the necessary ground for the state’s responsibility based on the
organisational link reflected in art 4 DARS.319
In sum, PMC conduct might be attributed to the Contracting State pursuant to art
4 DARS. Yet, it appears that due to the present practice of Contracting States, PMCs
normally cannot be regarded as state organs in the sense of art 4 DARS. The reason for
this is their current position outside the military chain-of-command and jurisdiction of
military penal and disciplinary domestic laws.
315
There are tendencies in some states to ‘transfer’ PMC employees into combatants. One way would be
to oblige PMCs under domestic law to employ only individuals with ‘military obligations’, eg retirees and
reservists. These individuals, though contracted, would be under the military chain-of-command. This way
is currently followed in the UK with the United Kingdom Sponsored Reserve Act which ‘requires each
defence contractor “to have a specified number of its employees participate as military reservists ….”’
This concept is studied by states like Australia and Canada, as well as the US Air Force; Guillory (n 174)
at p- 141-142 (footnotes omitted). See also below part V.1.
316
In the sense of art 4(2) of the Geneva Convention III (n 215) and art 1 of the Hague Regulations (n
214).
317
Cf Pictet (n 234) at p 57.
318
As reflected in art 43(1) of the Protocol I (n 216).
319
This leaves open, however, other links for attributing to the Contracting State conduct of PMCs
constituting or forming part of militias or volunteer corps, particularly those forming the bases for
attribution in art 5 DARS and art 8 DARS (n 156).
51
The attribution of PMC conduct to the Host State pursuant to art 4 DARS would
face the same problems.320 These would , indeed, be aggravated due to the absence of
even a contractual link between the private corporation and the state.
The fact that a PMC is incorporated in a state does not, per se, make it an organ
of the Home State and therefore does not establish the link for attributing PMC conduct
pursuant to art 4 DARS. However, a closer look at Home States that have enacted a
domestic licensing regime, for instance the United States,321 South Africa322 and Israel,
is warranted.323 Simply put, these regimes oblige PMCs that want to provide military
services abroad to apply for a licence at the competent authority of their state. Pursuant
to the respective domestic laws, the Home State either licenses the PMC’s business in
general or requires an application and licence for every single contract. However, even if
the licensing regime is contract specific and the review by the Home State’s authorities
thorough, the licence is nothing less and nothing more than the permission under
domestic law legally to do business abroad. The license does not incorporate the PMC
into the Home State’s civil or military organizational structure and therefore does not
cause the attribution of PMC conduct to the Home State.324 The licensing procedure may
320
This refers to the situation in which the Host State is not the Contracting State, eg when the Contracting
State places at the disposal of the Host State a PMC for the use in an international armed conflict. The
Contracting State acts quasi as a sponsor. A comparable situation already exists in cases in which
Contracting States which are members of IOs such as the UN, place PMC contingents at the disposal of
the organization for operations in peace-making and peace-keeping missions.
321
The licensing regime in the United States is based on the Arms Export Control Act (AECA) and the
implementing International Transfer of Arms Regulations (ITAR); Zarate (n 127) at pp153-56. These
enactments regulate the export of arms, as well as defence services, and stipulate that US PMCs intending
to provide military services to foreigners must register with and obtain a licence from the State
Department, UK Green Paper (n 2) at p 39, Annex B. Congress has to be notified and the State
Department has specifically to approve each PMC contract for services exceeding US$ 50 million,
Stinnett (n 29) at p 4. The United States Government issued a list of criteria to be taken into account
during the licensing process, most of them based on the country’s foreign and security policy, see Zarate
(n 127) in fn 481 and accompanying text. Even after the licence is issued the Government maintains
oversight and it reserves the right to suspend a licence, Zarate (n 127) at p 156; P Rubenstein (1993) ‘State
responsibility for the failure to control the export of weapons of mass destruction’ 23 Cal W Int’l L J 319,
343.
322
The South African Regulation on Foreign Military Assistance Act of 1998 (RFMAA) is applicable only
in cases of (intended) assistance to a party of an foreign armed conflict. According to the RFMAA, South
African PMCs require the permission of the Minister of Defence in order to provide ‘foreign military
assistance’. The licence must be denied under certain conditions. The Minister may withdraw or amend a
licence at any time. For details see Frye (n 115) at pp 2635; UK Green Paper (n 2) at pp 39-40, Annex B.
The RFMAA is available at: http://www.info.gov.za/gazette/acts/1998/a15-98.pdf (visited on 19 October
2005). Currently a draft amendment is being discussed, see Le Roux (n 87) and Boyd Webb ‘Mercenary
bill is shot down in parliament’ in Cape Times of 23 May 2006 at p 6.
323
Zarate (n 127) pp 156-157.
324
Zarate (n 127) at pp 154, 158 seems to hold a different view when he advocates the Home State’s
responsibility under international law based on the licence. Though not explicitly clear on this point, he
appears to hold the Home State responsible for PMC conduct which becomes attributable because of the
52
nevertheless be the basis for the Home State’s responsibility, either in the realm of other
rules of attributing private conduct or in connection with a state’s failure to exercise due
diligence.325
(c)
Article 5 DASR ‘authorized by the law … to exercise governmental
authority’
Article 5 restates the accepted rule that ‘the conduct of a person or entity’ is attributable
to the state, if they, without being an organ of the state, are nevertheless ‘empowered by
the law of that State to exercise elements of the governmental authority …, provided that
the person or entity is acting in that capacity in the particular instance.’326
The term ‘entity’ covers private corporations.327 PMCs may therefore come into
the realm of art 5 DARS. However, the two key requirements are less clear.328 Exactly
what constitutes ‘governmental authority’?329 And what is necessary for a valid
empowerment ‘by the law of that State’?330 In relation to the former, it is argued that
those functions require governmental authority that are either ‘intrinsic’ state functions
or derived from treaty obligations.331 There seems to be agreement that governmental
authority is necessary for the performance of military functions, particularly if they
concern states’ duties imposed by the Geneva conventions.332 This leaves unresolved,
however, the problem of precisely defining ‘military’ which can be a highly disputed
issue.333
domestic licence, rather than basing the responsibility on the Home State’s organs own conduct, eg the
failure to exercise due diligence during the licensing procedure.
325
These situations will be addressed below in parts III.4(e) and III.5.
326
Cf art 5 DARS (n 156). Also, comments (4) on art 5 in ILC Commentary (n 156) at pp 93-94.
327
Comments (1) and (2) on art 5 in ILC Commentary (n 156) at p 92. The commentary states the example
of private security firms that run prisons and for this purpose exercise public powers like detention and
punishment.
328
Cf discussion of experts on these questions in CUDH Report (n 125) at pp 18-20.
329
CUDH Report (n 125) at pp 18-20. Comments (5) and (6) on art 5 in ILC Commentary (n 156) at p 92.
The commentary concludes that the circumstances of the individual case will be determining, taking into
account ‘the particular society, its history and traditions.’
330
CUDH Report (n 125) at p 20. Comment (7) on art 5 in ILC Commentary (n 156) at pp 92-93.
331
CUDH Report (n 125) at pp 18-19. This, obviously, raises the problems of defining ‘intrinsic’ state
functions and discussing whether the exercising of all or only some treaty obligations requires
governmental authority.
332
CUDH Report (n 125) at p 19-20 where a distinction is made between military functions imposed by
the Geneva Conventions and others that ‘may not require the exercise of governmental authority’.
Reference is made to art 55 of the Geneva Convention IV, ie, ensuring the provision of medical and food
supplies.
333
This is the case when it comes to distinguishing private military firms from private security firms; see
above in n 13. In connection with art 5 DARS, the CUDH Report (n 125) at p 19 refers to the example of
53
The requirement of being empowered ‘by the law of the State’ leaves open
whether such an authorization must be specific and direct or may instead be indirect.334
The formulation serves to distinguish situations within the scope of art 5 DARS from, in
particular, those of art 8 DARS.335 In other words, a person or entity empowered in
accordance with art 5 DARS may enjoy ‘an independent discretion and power to act.’336
This sets art 5 DARS apart from art 8 DARS where the conduct must be carried out ‘in
fact on the instructions of, or under the direction and control of that state.’337 Taking into
account the purpose of art 5 DARS it would seem exaggerated to require the
empowering domestic law to be specific and direct in the sense of an empowered by a
instead of the law.338 The rule in article 5 DARS aims at preventing states from escaping
their international responsibilities by transferring elements of their governmental
authority to persons or entities outside the state’s organic structure.339 For this rule to be
effective it cannot make a difference whether the domestic law transfers the permission
to exercise governmental authority upon the entity directly by a specific law or
indirectly based on the law which, eg, allows for the delegation of specific powers by
state organs to private entities such as PMCs.340 What is insufficient, though, as a basis
for attribution, is that ‘the internal law … permits the activity as part of the general
regulation of the affairs of the community.’341 Rather, ‘[t]he internal law in question
must specifically authorize the conduct as involving the exercise of public authority’342
For this requirement to be met, it should suffice that an interpretation of the law
establishes that the legislating body intended to vest a private entity with the power of
whether a PMC can be deemed to performs military functions when it guards an oilfield in an occupied
territory.
334
CUDH Report (n 125) at p 20.
335
Comment (7) on art 5 in ILC Commentary (n 156) at p 94. Article 8 DARS stipulates that ‘[t]he
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.’
336
Comment (7) on art 5 in ILC Commentary (n 156) at p 94.
337
Comment (7) on art 5 in ILC Commentary (n 156) at p 94.
338
Cf CUDH Report (n 125) at p 20.
339
Cf comments (1) and (2) on art 5 in ILC Commentary (n 156) at pp 92-93.
340
The comments on art 5 in ILC Commentary (n 156) at pp 92-95 do not suggest the need for a directly
empowering law, either.
341
Comment (7) on art 5 in ILC Commentary (n 156) at p 95 referring to the examples of self-defence and
self-help permitted under domestic law.
342
Comment (7) on art 5 in ILC Commentary (n 156) at p 95.
54
exercising a defined part of the public authority, be it directly based on the law itself or
indirectly by entitling state institutions to transfer this power to the private entity.343
The attribution of PMC conduct to a state pursuant to art 5 DARS is relevant in
cases in which PMCs cannot be regarded as organs, in particular, when they do not form
part of the armed forces of the state.344 If such a PMC fights an international armed
conflict on behalf of the Contracting State, the above requirements are likely to be
fulfilled, provided that the contracting organ of the state is entitled by domestic law to
delegate the specific exercise of governmental authority to the PMC. In this case, the
function requiring governmental authority would be the fighting of the international
armed conflict.345 More difficult are cases in which the PMC, based on domestic law of
the Contracting State, operates in an armed conflict without taking part in direct
hostilities, ie fighting on behalf of the client.346 In such cases the individual
circumstances will determine whether the operation is an exercise of governmental
authority causing the attribution of conduct to the state or not.347 If one accepts the
suggestion that the state may authorize an organ by law to delegate to a PMC specific
functions requiring the exercise of governmental authority, then such delegation could
be included in the contract between the organ and the PMC.348
343
Thus, it is suggested, that the law in question must not expressly authorize the private entity to exercise
‘public authority’. What is necessary, though, is that the interpretation of the law establishes the state’s
intention not only to permit a certain conduct which is traditionally effected by state authorities (eg use of
force in a situation of self-defence) but to commission a private entity to exercise a defined part of the
state’s jurisdiction (eg the guarding of a prison by private guards). Similarly, Appeals Chamber of the
International Criminal Tribunal for the Former Yugoslavia (ICTY) in its judgment Prosecutor vs Tadic
(Prosecutor vs Tadic case) of 15 July 1999, 38 ILM 1518, 1539, available at:
http://www.un.org/icty/cases-e/index-e.htm (visited: 27 August 2006) at p 44 referring to the Nicaragua
case (n 171).
344
Otherwise an attribution would be possible pursuant to art 91 sentence 2 Protocol I (n 216) or art 4
DARS (n 156).
345
Cf CUDH Report (n 125) at p 15 referring to a PMC which fulfils the criteria of art 4(2) of the Geneva
Convention III (n 215).
346
The conduct which amounts to a direct participation in the hostilities may be subject to debate, as
indicated above in part III.3(c)(i).
347
The running of a POW camp, as well as the interrogation of inmates are likely to be deemed functions
requiring governmental authority (cf Caci and Titan involvement in the Abu Ghraib prison scandal (n
274). Cf arts 12, 13 of the Geneva Convention III (n 215) and CUDH Report (n 125) at p 19.
348
Such a delegation, though arguably for an non-international armed conflict, is included in the contract
between Sandline and PNG which under the heading ‘Responsibilities of the State’ in para 3 reads: ‘The
State recognizes that Sandline’s commanders will have such powers as are required to efficiently and
effectively undertaken their given roles, including … to engage and fight hostile forces, …, arrest any
persons suspected of undertaking … harmful acts, secure Sovereign assets and territory, defend the
general population from any threat, and proactively protect their own and State Forces from any form of
aggression or threat.’ Cf Appendix II of this paper ‘Operation Contravene’.
55
The foregoing deliberations apply similarly to a Host State that does not have a
contractual relationship with the PMC. The only difference is that the delegation of
power in the sense of art 5 DARS will not be included in the contract but has to be
effected by other means.
The incorporation of a PMC in a state does not, on its own, cause the attribution
of PMC conduct to this Home State. Again, however, existing domestic licensing
regimes warrant a closer look. Usually, by issuing the license, the Home State will not
transfer governmental authority to the PMC. Even though military functions arguably
require the exercise of governmental authority, the standard case will not involve the
Home State’s authority349 but rather that of the Host State.350 The Home State’s licence
is therefore, in principal, not an act of empowerment but only the ‘permission’ to do
private business in a sensitive sector, the management and use of force.351
(d)
Article 6 DASR ‘organ placed at the disposal of a State by another State’
The ‘sponsoring’ cases could allow for an attribution of PMC conduct to the receiving
state pursuant to art 6 DASR.352 This article attributes conduct of ‘an organ placed by
one State at the disposal of another State … if the organ is acting in the exercise of
governmental authority of the [receiving State].’ Yet, the scope of applicability of art 6
DASR is narrow.353 What is particularly limiting in the cases of PMCs is that the
sending state will usually not integrate them into its own forces prior to placing them at
the disposal of the receiving state. Therefore, the PMC will normally not be an organ of
the sending state, thus excluding this situation from the realm of art 6 DARS. If the
conditions of art 6 DASR are met, however, the conduct of the ‘sponsored’ PMC would
be attributable to the receiving state, probably the Host State.
349
For instance, the guarding of a Home State’s weapon depot by a PMC.
For instance, providing sophisticated command & control or air support services in an armed conflict.
351
This does not rule out the possibility of a license containing such an delegation of power by the Home
State to its PMC. Yet, in most of these cases a contractual relationship will exist between the two. An
exception could be PMCs contracted by a foreign state which are licensed by the Home State and in
addition granted certain governmental authorities in the licence to enable the PMC to ‘represent’ its
Government abroad. For instance, MPRI was widely perceived as a proxy of the US while operating in the
Balkans; cf Appendix II of this paper.
352
‘Sponsoring’ case refers to the situation described above in n 320.
353
Cf comments (1)-(2), (5) on art 6 in ILC Commentary (n 156) at pp 95-97.
350
56
(e)
Article 8 DASR ‘instruction or direction and control’
The rule in art 8 DASR which provides for the attribution of private conduct to a state is
of particular importance in connection with PMCs. Provided that the conditions laid
down in this article are met, private conduct becomes attributable to a state irrespective
of whether the PMC exercised ‘governmental authority’ or not.354
Under art 8 DASR, the conduct of private persons and entities is attributable to a
state ‘if the person or group of persons is in fact acting on the instructions of, or the
direction or control of, that State in carrying out the conduct.’ This provision deals with
two factual situations:355 a private person or group of persons acts on the instructions of
the state356 or acts under the direction or control of the state. The latter situation is more
complex. There appears to be agreement that the direction or control must be exerted
over a ‘specific operation and the conduct [in question] must form an integral part of that
operation.’357 It is less clear, however, what degree of direction or control is necessary
for their action to become attributable to the state.358
In its Nicaragua case, the ICJ had to decide whether the conduct of the Contras,
a Nicaraguan guerrilla group fighting against the Nicaraguan Government, was
attributable to the United States. The ICJ established a high threshold for the degree of
control necessary to incur state responsibility, and held that, for the conduct to be
attributable ‘it would have to be proved that [the United States] had effective control
over the military and paramilitary operations in the course of which the alleged
violations were committed.’359 Having reviewed the evidence, the ICJ concluded that
‘the relationship of the contras to the United States Government was [not] so
much one of dependence on the one side and control on the other side that it
354
Comment (2) on art 8 in ILC Commentary (n 156) at p 104.
Comment (1) on art 8 in ILC Commentary (n 156) at pp 103-04.
356
Comment (2) on art 8 in ILC Commentary (n 156) at p 104 refers to the example of ‘auxiliaries’ and
‘volunteers’ that a state might recruit to ‘supplement’ its own operations while keeping them outside the
official state-structure, eg by using them in hostilities to perform specific operations.
The ICJ in its Nicaragua case (n 171) attributed the specific conduct of the Unilaterally
Controlled Latino Assets (UCLA) – non United States nationals on the payroll of United States officials –
to the United States because they committed the actions in question under the specific instructions of the
US officials (see judgment at pp 45-48 paras 75-80 and pp 50-51 para 86. See also assessment of in the
Prosecutor vs Tadic case (n 343).
357
Comments (3) and (7) on art 8 in ILC Commentary (n 156) at pp 104, 107.
358
Comments (4)-(7) on art 8 ILC Commentary (note 156) at 104-08.
359
Nicaragua case (n 171) at pp 64-5 para 115. Emphasis added.
355
57
would be right to equate the contras, for legal purposes, with the Government of
the United States.’360
The court reasoned that
‘despite the heavy subsidies and other support provided to [the contras] by the
United States, there is no clear evidence of the United States having actually
exercised such a degree of control in all fields as to justify treating the contras as
acting on its behalf.’361
The ICJ appears to retain this high threshold of “effective control”, as evidenced
by its recent statements in the Case concerning armed activities in the Congo.362
This threshold was examined and, in the end, partly dismissed by the ICTY’s
Appeals Chamber in its Prosecutor vs Tadic case.363 In this case, in order to establish the
individual criminal responsibility of the accused Tadic, the Court had to address the
question whether the conduct of Serbian organized forces within Bosnia and
Herzegovina was attributable to the Federal Republic of Yugoslavia supporting the
Serbian forces.364 According to the ICTY, the ‘degree of control may … vary according
to the factual circumstances of each case.’365 The Appeals Chamber was not of the
opinion that in each case international law required ‘a high threshold for the test of
control.’366 Rather, the Court differentiated between private individuals or groups of
individuals ‘not militarily organized’ and ‘subordinate military forces or militias or
paramilitary units’367 In the former case, the Tribunal upheld the high threshold of the
ICJ in the Nicaragua case, requiring that it be ascertained ‘whether specific instructions
concerning the commission of that particular act had been issued by that State to the
360
Nicaragua case (n 171) at p 62 para 109.
Nicaragua case (n 171) at p 62 para 109.
362
Case concerning armed activities in the Congo (n 178) at pp 55-56, para 160. The Court did not find
evidence for the contention of the Democratic Republic of the Congo that Uganda instructed, or directed
or controlled the rebel movement MLC. Referring to its standards set forth in the Nicaragua case (n 171),
the Court concluded: ‘Accordingly, no issue arises in the present case as to whether the requisite tests are
met for sufficiency of control of paramilitaries ….’ This seems to indicate that the ICJ is not going to alter
its ‘control test’.
363
Prosecutor vs Tadic case (n 343) at pp 1538-1546 paras 106-145.
364
Prosecutor vs Tadic case (n 343) at pp 1535 paras 80-87 at the outset of its reasoning, the Court held
the view that, as regards the issue of attribution to a state of the conduct of private persons or groups, these
conditions had to be the same no matter whether it was about establishing state responsibility or individual
criminal responsibility; see p 1538 para 104.
365
Prosecutor vs Tadic case (n 343) at p 1541 para 117 and p 1544 para 137.
366
Prosecuoer vs Tadic case (n 343) at p 1541 para 117.
367
Prosecutor vs Tadic case (n 343) at p 1544 para 137.
361
58
individual or group in question.’368 In the latter case, the Court held the view that the
control ‘by a State over subordinate [militarily organised groups] … may be of an
overall character (but must comprise more than the mere provision of financial
assistance or military equipment or training)’.369 Yet, in the Court’s opinion, it was not
necessary for the state to issue specific orders or to direct the individual mission of the
units dependent on that state.370
Both judgments, supported by others,371 underline one preliminary proposition,
irrespective of the question what degree of control should precisely be required for the
attribution to a state of conduct of private individuals. This proposition is that an
‘organic or legal connection to the government is not as important as a factual link.’372
What seems also undisputed is that ‘the factual circumstances of each case’373 determine
the degree of control necessary to attribute a specific conduct to the state.374 Against this
background, one should be careful while applying generalized benchmarks, be it
effective or overall control.
Nevertheless, the distinction of the ICTY between militarily organized groups of
individuals on the one hand, and private individuals or not militarily organized groups
on the other hand is preferable, for it appears to be in line with judicial decisions and
state practice.375 The same holds true for the application of the stricter benchmark of
effective control in the former case, and the more relaxed one of overall control in the
latter.376 The following two reasons support the use of an overall control test to militarily
organized groups:
368
Prosecutor vs Tadic case (n 343) at p 1544 para 137 and p 1542 para 124.
Prosecutor vs Tadic case (n 343) at p 1544 para 137 (emphasis added).
370
Prosecutor vs Tadic case (n 343) at p 1544 para 137 and p 1544 para 131 with examples of states’
activities that might suffice to deem the overall control to be established (eg organising, coordinating or
planning of military activity in addition to financing, training and equipping).
371
For instance, Case concerning United States Diplomatic and Consular Staff in Tehran, ICJ, Judgment
of 24 May 1980 (following: Diplomatic and Consular Staff case), ICJ Report 1980 p 3.
372
Townsend (n 164) at p 658 with an assessment of a variety of decisions of the Iran-US Claims Tribunal
at 648-59. See also comment (6) on art 8 DARS in ILC Commentary (n 156) at pp 107, 108 with respect
to state owned companies.
373
Prosecutor vs Tadic case (n 343) at p 1541, para 117.
374
Comment (7) on art 8 in ILC Commentary (n 156) at p 107 with further references.
375
The detailed exploration in Prosecutor vs Tadic case (n 343) at paras 124-136.
376
The detailed exploration in Prosecutor vs Tadic case (n 343) at paras 124-136. JA Hessbruegge ‘The
historical development of the doctrines of attribution and due diligence in international law’ (2004) 36
NYU J Int’l L & Pol 265, at pp 303-306.
369
59
First, the overall control test is more appropriate than the effective control test to
give effect to the different elements of the rule in art 8 DARS (‘instructions’, ‘direction’,
‘control’).377 These elements are deemed to be disjunctive, not conjunctive. 378 Therefore
each of them should enjoy their own scope of application.379 The benchmark of effective
control, however, blurs the distinction between the elements of ‘instruction’ and
‘control’ to an extent that they become indiscernible, for it requires, in order to affirm
the necessary degree of control, that the state ‘microcontrols’ each and every member of
the group by issuing instructions for the conduct in question.380 By contrast, the overall
benchmark, places the emphasis on the element of ‘control’ in that it takes account of
the hierarchical structure of such militarily organized groups and refrains from requiring
specific instructions by the state to the group’s member whose conduct is at issue. It
suffices if the state controls the group which, through its command structure, then
controls the individual.381
The latter aspect ties in with the second reason why the overall benchmark seems
to be more convincing in connection with militarily organized groups. It is in line with
the rationale behind the rule in art 8 DARS, namely to prevent a state from escaping
international responsibility when they use de facto agents acting on its behalf.382 By
contrast, the extremely high standard of effective control makes it almost impossible to
hold a state responsible for the conduct of militarily organized groups, although the state
deliberately uses this group and its command structure to promote its own goals. Against
the background of the ongoing privatisation of state functions, also military ones, the
lower benchmark of overall control serves to further the rationale of art 8 DARS, to
contain situations of ‘plausible deniability’.383 In doing so, it counterbalances the effects
of outsourcing state functions.
377
See art 8 DARS (n 156).
Comment (7) on art 8 in ILC Commentary (n 156).
379
This does not exclude the possibility of overlapping scopes of applications.
380
Nicaragua case (n 171) at pp 64-65, para 115. Separate opinion Judge Ago (n 197) at pp 188-189, para
16. Cf Prosecutor vs Tadic case (n 343) at para 114.
381
Procecutor vs Tadic (n 343) at paras 120, 122.
382
Procecutor vs Tadic (n 343) at paras 117, 123 ‘…, State responsibility is instead the necessary
corollary to the overall control exercised by the State over the group.’ Hessbruegge (n 376) at p 304.
383
As regards ‘plausible deniability’ cf K McCallion ‘War for sale! Battlefield contractors in Latin
America & the “corporatization” of Americas war on drugs’ (2005) 36 U Miami Inter-Am L Rev 317, at p
319 and at pp 340 et seq, pp 345 et seq, Singer, PMF-study (n 1) at pp 206-209.
378
60
However, even under the overall control test, the benchmark for attributing
private conduct to a state remains high. Both the ICTY and the ICJ require a substantial
degree of ‘control’. In the view of the ICTY,
‘[t]he control required by international law may be deemed to exist when a State
(or, in the context of an armed conflict, the Party to the conflict) has a role in
organising, coordinating or planning the military actions of the military group,
in addition to financing, training and equipping or providing operational support
to that group.’384
The ICTY also seems to require that the group be ‘subordinate’ to the state.385
Could a state be deemed to exert overall control over a PMC with the effect that
the conduct of the firm’s employees becomes attributable to the state? Of course, an
answer to this question will depend on the individual circumstances. In general, one may
assume that many PMCs are militarily organized, particularly military provider firms.386
These PMCs would therefore fall into the category to which the overall control test
should be applied. On the other hand, PMCs are not comparable to the paramilitary,
militia, guerrilla and rebel groups in relation to which the IJC and the ICTY developed
their jurisprudence. As shown above, PMCs are rather independent from states in
relation to their financing, equipment and arguably the provision of operational
support.387 Moreover, they are not really subordinated to the state, for they are usually
not integrated into the state’s chain of command.388 Thus, even if the state can be said to
‘have a role in organising, coordinating or planning the military actions of the’389
PMCs, the ICTY’s prerequisites for affirming the overall control of the state would not
be met. Nevertheless, the rationale behind the rule in art 8 DARS, though, could be used
to advocate the attribution of the PMC’s conduct to the state.
In summary, the rule in art 8 DARS may, depending on the circumstances of
each case, serve as a basis for attributing PMC conduct to states. However, a number of
384
Prosecutor vs Tadic case (n 343) at para 137. (Emphasis in original)
Prosecutor vs Tadic case (n 343) at para 137, passage cited above at n 367. The IJC in the Nicaragua
case (n 171) follows the same line, even stricter, as evidenced by its effective control benchmark and the
emphasis of the requirement of a high degree of dependency of the group from the state. Nicaragua case
(n 171) at paras 109, 115.
386
See above part II.2 and 4.
387
See above II.2 and 4. Since many employees of firms from the provider and consultancy sector are
staffed from former members of states’ armed forces, one could make an argument that in this context the
PMC received state support.
388
See above part II.3(b).
389
Prosecutor vs Tadic case (n 343) at para 137. (Emphasis in original).
385
61
obstacles exist. Especially when specific instructions by a state to the members of a
PMC cannot be proven, the difficulties of providing evidence are amplified by the legal
insecurity of what degree of control and what exact kind of state influence should be
deemed necessary for the attribution of PMC conduct to the state.
The above guidelines allow for some general remarks on the attribution of PMC
conduct to the different categories of involved states. Such conduct will, in principal, not
be attributable to the Contracting State, based on the contract alone, unless, of course,
the contract includes instructions to carry out specific operations violating international
obligations of the state.390 The main reason for this is that the contract merely establishes
a legal link between the state and the PMC, not the necessary factual relationship. If the
PMC decides to act against the provisions of the contract, all that arises is a contractual
claim of the state against the PMC under domestic law duly to perform its obligations
and to pay damages. Yet, the contract on its own does not permit the state to exercise
any kind of factual direction or control over the PMC and its employees.
Furthermore, it is unlikely that the contract will contain instructions in the sense
of art 8 DARS to carry out specific operations, for at least two reasons: first, contracts
are likely to state obligations of the PMC in more general terms, eg, in the case of
Military Provider Firms, certain goals or mission objectives that are to be achieved. This
will leave it to the PMC to decide on the tactical level what kind of operations might be
necessary to achieve these goals.391 This makes sense, because it will be impossible to
determine in advance when signing the contract, the specific conduct necessary to
perform the contract successfully. Even if this was possible it would unnecessarily limit
the capacity of the firm to react flexibly to developments in the field. Second, both
parties to the contract will try to avoid producing evidence for conduct which might
violate the state’s international obligations or be detrimental to the firm’s reputation.
390
The issue of private conduct exceeding the instructions of the state will be addressed below in the
following section (f).
391
Theses findings are not confined to military provider firms. In the case of military support firms like
KBR, eg with respect to contracts which oblige the firm to provide supplies like foodstuff to the troops,
the exact time and amount of supply will depend on the process in the military campaign. The supplies
will be requested where and when necessary and the firm is under an contractual obligation to meet these
requests. However, the contract will not contain instructions for each and every request in the wake of
which international obligations of state might be violated.
62
Therefore, even if instructions are given by the state to the PMC, they are unlikely to be
found in black and white in the contract.
What if the contract provides for the attachment of the PMC to the Contracting
State’s armed forces? In this case, the requirements for the attribution of PMC conduct
pursuant to art 5 will be met if the delegation of state power to the PMC, which arguably
forms part of such an attachment, is provided for by the law of the Contracting State.392
If this is not the case, the contractual provision on its own would not suffice to meet the
requirements of art 8 DARS. This merely legal connection between the state and the
PMC would have to be accompanied by a factual link, eg the acting of the PMC on
instructions of the state or under the command of its military leaders.
The Host State will be the state which is most likely to exercise the degree of
direction and control over the PMC that is required by art 8 DARS, at least when the
PMC operates not only on the territory of the state but also on the side of Host State’s
armed forces. Again, it will depend on the specific circumstances: if the Host State is in
the position to instruct the PMC as to what to do, the attribution of subsequent PMC
conduct is likely. The same holds true in situations in which the PMC can be regarded to
be under a sufficient degree of direction and control, eg, when the command of the Host
State’s armed forces remains in the position to plan and conduct operations which
include the participation of the PMC.393 On the other hand, in cases of young states’ or
(almost) failed states which use the services of firms like Sandline394 or EO395 to provide
superior skills especially in the area of command, control and communications, it will be
difficult to regard the states’ armed forces as issuing directions and having control in the
sense of art 8 DARS. Instead, it will be the firm that pulls the strings.396
PMC conduct will not be attributable to its Home State based on the mere fact of
the firm having its registered offices there. This legal connection is equally insufficient
for an attribution pursuant to art 8 DARS as a relationship based on a mere contract.397
Again, however, the situation in states with a licensing regime in place warrants a closer
392
See above part III.4(c).
Provided that one does not place too much emphasis on the above mentioned requirements of
dependency or subordination of the PMC to the state.
394
See Appendix II of this paper.
395
See Appendix II of this paper.
396
Situations are not unthinkable in which the firm turns against the government of the Host State. Cf
Appendix II of this paper for a description of EO’s dominating influence on the internal politics in Sierra
Leone.
397
As discussed above with respect to the Contracting State.
393
63
look, because the PMC’s conduct might be attributable to its Home State due to factual
circumstances in connection with the licensing procedure: a contract-specific licensing
procedure might review the contract in detail which the PMC wants to perform abroad
(‘Service Contract’), and finally license it only if the contract is in line with the foreign
policy goals of the Home State. Moreover, the Home State might license the Service
Contract subject to the fulfilment of certain conditions; the licence might be revocable if
certain conditions are not met, or the Home State might reserve the right to cancel the
licence at its discretion or if certain factual situations occur.398 Finally, informal
networks between the authorities of the Home State and the PMC might offer means of
influencing the PMC.399 Thus, it could be argued that the Home State exerts, or is able to
exert, influence over the PMC justifying the attribution of the PMC’s conduct to the
state in accordance with the rule in art 8 DARS.
However, for this rule to apply, it is not sufficient that a PMC is perceived to be a
proxy of the Home State,400 especially if such a perception relates rather to a political
understanding of “proxy” than to a legal one.401 While a PMC’s involvement in a foreign
country may well be in line with the Home State’s foreign policy,402 only in exceptional
cases will the PMC be empowered to represent its Home State in a legal sense, ie, with
binding effect, or to exercise governmental authority of the Home State.403 In the
remaining, more typical cases, for PMC conduct to be attributable to the Home State, the
PMC would have to act on the instructions of its Home State or under its direction or
control.404
398
See above part III.4(b) regarding the United States and the South African legislations.
Regarding these networks see P Cullen ‘Keeping the new dogs of war on a tight leash’ in Conflict
Trends, June 2000, 36, 37-38. Also, Singer, PMF-study (n 1) at p 212 referring to MPRI’s connection to
the US Government; Singer, Warriors for hire (n 15) at * 1 reporting on the extensive lobbying efforts and
spendings of PMCs in the US.
400
This was the case in the example of MPRI’s involvement in the Balkans, see Singer, PMF-study (n 1)
at p 212; UK Green Paper (n 2) para 50 ‘Proxies for Governments ... MPRI has undoubtedly
functioned as an instrument of US policy in the Balkans. The fact that MPRI’s actions are at least
consistent with US Government policy is made plain by the State Department’s issue of licences.’; Zarate
(n 127) at p 105.
401
However, the ‘players’ in the Balkans appear to have regarded MPRI to be a ‘quasi-agent’ of the US
despite the public fact that MPRI had no official status, see Zarate (n 127) at p 105 and fn 202.
402
Evidenced, ia, in the case of MPRI by the US authorities licensing contracts with Croatia and later
Bosnia, and by recommending to the Bosnian government the services of MPRI’s, see Zarate (n 127) at pp
108-09.
403
See CT Onions (ed) The Oxford Dictionary of English Etymology (1966) at 719. PONS
Fachwörterbuch Recht (2ed) (1998) at p 286. If such empowerments exists, the PMC’s conduct will
probably be attributable pursuant to art 5 DARS, see above part III.4(c).
404
See above part III.4(e).
399
64
Instructions to the PMC to commit specific actions are unlikely to be contained in
the licence or the accompanying documents due to the following reasons:
Specific instructions of the Home State to the PMC, or even the possibility of such
instructions, would disturb the negotiated contractual balance between the parties to the
Service Contract, eg the Host State and the PMC. The licence concerns a contract in
which the PMC undertakes to provide military services to the client in the Host State.
The contract will regulate the relationship between the PMC and its client and will be
tailored to the requirements of the client as well as to the ability of the PMC to perform
the required services. The shifting of this contractual balance due to licences could lead
to the PMC or the client refraining from entering into or performing the Service
Contract. Home States, however, will often try not to interfere too much into the
businesses of ‘their’ corporations for fear of chasing them away.405
More importantly, as suggested above, the contract is likely to spell out the future
services of the PMC in a rather general and abstract manner, since the success of
military operations depends largely on tactical flexibility, surprise and secrecy.406 The
licensing Home State, however, is even less in a position to predict the requirements of
future military operations than the parties to the Service Contract. Therefore, any
instruction which the Home State could give in the licence will, in most cases, be useless
or impracticable at the moment when the PMC starts performing the Service Contract.
The pre-eminent factor weighing against the issuing of specific instructions for
future conduct of the PMC is the following: even if the Home State considered certain
illegal conduct, eg, torturing of prisoners, necessary or appropriate, it would, for obvious
reasons, avoid producing evidence of instructing such conduct.407 In these cases, the
Home State would refrain from instructing the PMC in the licence and the
accompanying documents, and rather apply other means to influence the conduct of the
PMC.408
Due to these reasons, ‘instructions’ are more likely to appear in the form of
conditions to be satisfied by the PMC, assuring the conformity of the services to be
405
Cf Chirwa (n 157) at pp 34-35 in the context of human rights and MNCs.
As discussed above with respect to the Contracting State.
407
For example: physical or psychological abuse of prisoners as in the case of the inmates of the Abu
Ghraib prison , see above in n 274.
408
For example: relying on networks and good relationships existing between PMF-personnel and Home
State officials. See Zarate (n 127) at 102-03 regarding the connections between South African PMCs and
the South African Government and at 103-112 regarding connections between US policy and US PMCs.
See also Cullen (note 399).
406
65
provided by the PMC with the Home State’s foreign policy. Yet, these conditions are not
tantamount to the instructions referred to in art 8 DARS unless they require the PMC to
act in a specific way in a future situation.409
The licence of the Home State and the accompanying procedure does not lead to
a factual ‘direction or control’ of the Home State either: Even if the Home State issues a
licence reserving the right to suspend or revoke the licence at any time it does not, in
fact, direct or control the specific conduct of the PMC, for revoking the licence does not
prevent the PMC from performing its Service Contract in the Host State.410 This lack of
the Home State’s factual direction and control is based on the private corporate structure
of PMCs.411 In general, PMCs are not dependent on the Home State’s authorities, but
operate in the open market to satisfy their demand on employees and equipment and to
generate business.412 Thus, they differ from guerrilla, paramilitary, militia or rebel
groups that are classically associated with the ‘direction or control’ test and that often
depend on foreign states supplying their struggles.413
(f)
Conduct ultra vires
The question arises how to treat cases in which the PMC conduct is ultra vires, ie,
exceeding the authorities of the PMC or contravening instructions of a state. Can the
conduct nevertheless be attributed to a state? IHL provides rules that answer these
questions to some extent. For the remaining cases of IHL and for cases outside the realm
of IHL such as the jus ad bellum, art 7 DARS will be applicable.
Article 91 of the Protocol I is worded similarly to art 3 of the Hague Regulations
and restates in the second sentence a rule of customary international law, in that a party
to the conflict ‘shall be responsible for all acts committed by persons forming part of its
409
For example, if the Home State issues the licence for a contract in which the PMC undertakes to
interrogate prisoners for the Host State, and the licence contains the conditions that (a) the interrogations
have to be conducted pursuant to an interrogation manual of the Home State advocating physical abuse of
prisoners and (b) the results of the interrogation have to be transmitted to the Home State, then the conduct
of the PMC could be attributed to the Home State.
410
The revocation of the licence might render the conduct of the PMC illegal under its Home State’s
domestic law (eg art 8 RFMAA, above in n 322). Furthermore, the revocation might be to the detriment of
the PMC’s future business. Yet, neither the possibility of revoking a licence nor the actual revocation
enables the Home State to exert influence on the specific conduct of the PMC, let alone direction or
control.
411
See above part II.4(b).
412
Singer, Corporate Warriors (n 13) at pp 191-93.
413
For example: United States’ support of the contras as found by the ICJ its Nicaragua case (n 171).
66
armed forces.’414 In situations in which the PMC forms part of the state’s armed forces,
ie, when it is an organ of that state, this rule of art 91 of the Protocol I is lex specialis to
art 4 DARS. Pursuant to this rule, all acts are attributed to the state, irrespective of a
situation of ultra vires behaviour or the private character of the acting person.415 ‘Act’ in
the sense of this rule is to be understood as ‘conduct’ thus comprising omissions as
well.416 It is argued that art 91 sentence 2 of the Protocol I covers all acts violating
international law, ie, not only acts violating the Conventions and Protocols.417
For ultra vires conduct outside the scope of art 91 of the Protocol I, art 7 DARS
restates the rule of customary international law in the following terms:
‘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.’418
This rule only applies for the attribution of ultra vires conduct of organs, persons
or entities authorized to exercise elements of the governmental authority, ie, to cases of
arts 4-6 DARS. Therefore, only if the PMC falls into one of these categories can its ultra
vires conduct be attributed to the state.
419
The necessary prerequisite is that the
respective organ, person or entity acted ‘in that capacity’. For this to be the case, the
PMC must have acted with actual or at least apparent authority.420 The attribution of
414
Commentary Protocol I (n 121) at p 1045, para 3645. The four Geneva Conventions contain a common
article entitled ‘Responsibilities of the Contracting Parties’ reading: ‘No High Contracting Party shall be
allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by
another High Contracting Party in respect of breaches referred to in the preceding Article.’ Cf art 51
Geneva Convention I, art 52 Geneva Convention II, art 131 Geneva Convention III and art 148 Geneva
Convention IV (n 215). As regards the lex specialis character of art 91 Protocol I in relation to art 4 DARS
see also above part III.4(b).
415
Commentary Protocol I (n 121) at p 1052, paras 3660-3661. Case concerning armed activities in the
Congo (n 178) at p 69, paras 214-215 and para 243.
416
Commentary Protocol I (n 121) at p 1052, para 3660.
417
Commentary Protocol I (n 121) at p 1052, para 3661. This can also be derived indirectly from the
reasoning of the ICJ in the Case concerning armed activities in the Congo (n 178) where the Court at p 69,
paras 214-215 deals with the attribution of acts of Uganda’s military forces to Uganda basing this
attribution exclusively on the rule of 91 art I Protocol I. Then, at p 69 et seq, paras 216 et seq it turns to
address the question of whether Uganda breached its international violations. These obligations comprised
such of IHL and HRL.
418
With respect to the rule’s development and its customary character cf comments (3)-(6) on art 7 in ILC
Commentary (n 156) at pp 99-102.
419
Comment (9) of the ILC Commentary (n 156) at p 103.
420
Comments (7) and (8) of the ILC Commentary (n 156) at p 102.
67
purely private conduct pursuant to this rule is therefore not possible, which, it is argued,
distinguishes it from the broader one reflected in art 91 of the Protocol I.421
In the case of PMCs that cannot be subsumed under either art 4, 5 or 6 DARS
one has to distinguish between different situations. If PMCs are under the control of a
state then the PMCs’ ultra vires conduct will be attributable to the state.422 If, on the
other hand, the PMC received instructions of the state which referred to lawful conduct,
and the PMC then operated ultra vires these instructions in a way that would entail the
breach of international obligations of the instructing state, then the conduct is, in
principal, not attributable to the state. ‘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.’423
5.
Where PMC conduct is not attributable to a state
(a)
Introduction to the concept of due diligence
Not all situations involving PMCs will be covered by the above rules of attribution.424 If
the PMC is neither a state organ, nor vested with the right to exercise governmental
authority, nor acting under the instruction of or a sufficient degree of control of a state,
the general rule will apply, namely, that private conduct is not attributable to the state.425
Furthermore, though the circumstances might permit the attribution to a certain state of
PMC conduct, potential claimants or other stakeholders involved might be interested in
holding another state (also) responsible, eg when the state to which the conduct is
attributable is under no international obligation, or when it is, eg for political or
421
Purely private conduct relates to such situations in which not even apparent authority exists; the person
acts in its purely private capacity and just happens to be part of an organ or to be vested with
governmental authority; see comment (8) on art 7 in ILC Commentary (n 156) at p 102. As regards the
suggested broader scope of application of art 91 Protocol I and the possible interpretation of the Case
concerning armed activities in the Congo (n 178) see CUDH Report (n 125) at p 22-24.
422
Comments (3) and (8) on art 8 in ILC Commentary (n 156) at pp 104, 108.
423
Comment (8) on art 8 in ILC Commentary (n 156) at p 108.
424
Another rule of attribution that might be applicable, is restated in art 11 DARS. Pursuant to this, private
conduct will be attributed to the state that ‘acknowledges and adopts the [prior] conduct in question as its
own.’ Acknowledgement and adoption is understood to imply more than ‘mere support or endorsement.’
Since it is unlikely that a state will acknowledge and adopt conduct that might cause its own responsibility
under international law, this situation will not be dealt with in more depth here. For details see comments
on art 11 DARS in ILC Commentary (n 156) at pp 118-122.
425
Argumentum e contrario arts 8, 10, 11 DASR and above part III.1.
68
economic reasons, a less attractive target for the claimant.426 In such cases, the question
arises whether international law holds a state responsible without the conduct in question
being attributable to the state. This would be the case if and to the extent that this state is
under an international obligation to prevent harmful (private) conduct from happening,
or, more specifically, to prevent its nationals from harming other states or their
nationals? 427
The concept of due diligence offers a means for holding states responsible when
the harmful conduct cannot be attributed to them. This concept has a long history and
allows for state responsibility under international law when the attribution of harmful
conduct is impossible.428 In general terms, responsibility arises if the state ‘fails to
exercise due diligence in preventing or reacting to such [conduct].’429 Much remains
unresolved with respect to this concept and the Draft Articles of the ILC explicitly
refrain from commenting on it. The reason for this abstention is that the Draft Articles
only concern the secondary rules of state responsibility.430 The concept of due diligence,
however, is closely related to the primary rules of state responsibility, for the precise
scope of the state’s duty flows from the international obligation in question 431 Yet, some
principles appear to have been shaped and will be introduced briefly before this paper
will review the fields of HRL and IHL more closely.
The first principle was formulated by the ICJ in its Corfu channel case.432 The
case concerned, ia, the obligations of Albania vis-à-vis the United Kingdom with respect
to mines in Albania’s territorial waters when it could not be proven who had placed
these mines there. United Kingdom warships had run onto these mines, suffering
damage and loss of human life. The Court found Albania obliged to notify the UK of
426
For instance, the conduct might be attributable to the contracting Host State. However, this state might
be uninteresting for claimants which, for political or economic reasons, prefer to hold the Home State
responsible.
427
CUDH Report (n 125) at p 36 citing an expert envisaging situations in which this question could be
answered in the affirmative. At pp 36-37 addressing the possibility of differing obligations flowing from
‘due diligence rule’ depending on which category of state is involved. Schröder (n 156) at p 548, para 25.
428
Hessbruegge (n 376) at p 266. For an overview on the historical development see ibid at pp 276-302.
429
Hessbruegge (n 376) at p 268. See also Chirwa (n 157) at p 14. CUDH Report (n 125) at pp 34-36 with
respect to HRL.
430
As regards the distinction between primary and secondary rules of state responsibility see comments
(1) and (2) preceding Part I of the Draft Articles in ILC Commentary (n 156) at pp 59-60, and above in n
298.
431
Comment (3) at art 1 in ILC Commentary (n 156) at p 70.
432
The Corfu channel case (Merits), Judgment of 9 April 1949, ICJ Reports 1949, 4. Available at:
http://www.icj-cij.org/icjwww/idecisions.htm (visited: 9 August 2006).
69
‘the existence of a minefield in Albanian territorial waters and [to warn] the approaching
British warships of the imminent danger to which the minefield exposed them.’433 The
court found the basis for this obligation, ia, in
‘certain general and well-recognized principles, namely elementary
considerations of humanity, even more exacting in peace than in war, …, and in
every State’s obligation not to allow knowingly its territory to be used for acts
contrary to the rights of other States.’434
The Court further held Albania responsible for ‘grave omissions’ ‘because
nothing was attempted by the Albanian authorities to prevent the disaster.435
The second principle concerns environmental dangers and damages, and can be
regarded as a ‘special application’ of the former principle.436 States must ‘ensure that
(private) activities within [their] jurisdiction or control do not cause damage to the
environment of other states or of areas beyond the limits of national jurisdiction.’437 The
general acceptance of this principle notwithstanding, details of ‘the law governing
transnational environmental harm remain somewhat uncertain.’438
The third principle relates to the duties of states’ to protect aliens, ie, persons
within a state which have the nationality of another. States are obliged to ‘exercise due
diligence in order to prevent the injury of foreign nationals in their territory.’439
The fourth principle applies in the realm of HRL. The concept of due diligence is
firmly anchored in HRL.440 In short, HRL ‘obliges states to exercise due diligence to
prevent attacks on a person’s life, physical integrity, or liberty.441
433
The Corfu channel case (n 432) at p 22.
The Corfu channel case (n 432) at p 22 (emphasis added). See also Hessbruegge (n 376) at p 275.
435
The Corfu channel case (n 432) at p 23.
436
Hessbruegge (n 376) at p 275.
437
Hessbruegge (n 376) at p 275 with reference in fn 55 to the landmark Trail Smelter case (US v
Canada), 3 RIAA 1905, 1965 (1941). Cf also Gabcíkove-Nagyramos project (Hungary v Slovakia),
Judgment of 25 September 1997, ICJ Report 1997, 92 at para 112, available at http://www.icjcij.org/icjwww/idocket/ihs/ihsjudgement/ihs_ijudgment_970925_frame.htm (visited: 9 August 2006). M
Gibney / K Tomasevski / J Vedsted-Hansen ‘Transnational state responsibility for violations of human
rights’ (1999) 12 Harv Hum Rts J 267, at pp 273-277 exploring the development of transnational state
responsibility since the Trail smelter case.
438
Gibney et al (n 437) at pp 273 et seq. For deteils see also WG Vitzthum ‘Raum und Umwelt im
Völkerrecht’, in WG Vitzthum (ed) Vökerrecht (n 156) at pp 416-463.
439
Hessbruegge (n 376) at p 275 with further references.
440
Still, the details remain open to dispute. See the following part (b).
441
Hessbruegge (n 376) at pp 275, 276 with further references and stating that states must also punish
breaches and compensate for damages caused by these breaches. See ICHRP ‘Beyond Voluntarism’ (n 12)
at pp 52 et seq referring in general to the growing importance of the concept of due diligence with respect
to human rights Chirwa (n 157) at pp 15 et seq referring to the decision of the African Commission Social
434
70
Though all four principles might be applicable in connection with PMCs, the
following part will focus on HRL and IHL to look more closely at the requirements for
holding a state responsible under the doctrine of due diligence.
(b)
Due diligence and international human rights law
States’ duties under HRL can be grouped into three categories: to respect, to protect and
to fulfil human rights.442 In connection with the questions posed at the outset of this
section of the paper,443 the duty to protect merits closer attention.444 Its rather orthodox
and undisputed form obliges a state ‘to take positive action to protect citizens and other
people within its jurisdiction from violations that may be perpetrated by private actors or
other states.’445 It is codified in universal and regional human right treaties.446 To fulfil
its duty to protect, a state must take preventive measures and offer remedial means to
address violations.447 Only the preventive part of the duty to protect will be addressed
below.448
Obviously, a state cannot be held responsible for each and every interference of a
private person with human rights.449 Against this background, the concept of due
diligence serves as a restricting corrective. It was first ‘derived from the State’s
and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria,
Communication No 155/96 (2001). Chirwa (n 157) at pp 16 et seq referring to the judgment of the
European Court of Human Rights Osman v United Kingdom, (1998) VIII Eur Court HR 3124; 29 EHRR
245. Cf also Velásquez Rodriguez v Honduras, Inter-American Court of Human Rights, (1988) InterAmCourt HR (ser C) No 4, cited after Chirwa (n 157) at p 14. Ibid at p 18 concluding his survey of
jurisprudence, international instruments and declarations: ‘The state is responsible for private actions
resulting in human rights violations if it fails to take reasonable or serious measures to prevent violations
or respond to them.’ At p 11, 26, 29 stating the ‘principle of territoriality’ and jurisdiction.
442
Chirwa (n 157) at p 11.
443
See above part III.5(a).
444
Chirwa (n 157) at p 11. CUDH Report (n 125) at pp 37 et seq.
445
Chirwa (n 157) at pp 11 and 13-14 (emphasis added).
446
For instance, article 2(1) of the International Covenant on Civil and Political Rights (ICCPR), 999
UNTS 171; (1967) 61 AJIL 870; ICCPR adopted in 1966, entry into force 1976. It reads: ‘Each State
Party to the present Covenant undertakes … to ensure to all individuals within its territory and subject to
its jurisdiction the rights recognized in the present Covenant ….’ See also: article 1 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) ‘to secure to
everyone within their jurisdiction the rights and freedoms’; art 1 of the American Convention on Human
Rights (ACHR) ‘to ensure’; the African Charter on Human and Peoples’ Rights (AFHPR) is interpreted to
place upon governments ‘a responsibility to secure the safety and the liberty of its citizens ….’, see
Chirwa (n 157) at p 13 quoting the African Commission on Human and People’ Rights in Commission
nationale de droits de l’homme ed des libertés v Chad, Communication No 74/92 (1995).
447
Cf art 2(3) of the ICCPR with respect to the remedial measures. Chirwa (n 157) at p 11.
448
As regards the installation of remedial instruments see CUDH Report (n 125) at pp 41-42.
449
Otherwise, under legal considerations, this ‘would trivialise the notion of human rights’ and the state
would have to interfere too much into the affairs of its citizens which, in itself, could constitute a violation
of certain human rights. Cf ICHRP ‘Beyond Voluntarism’ (above n 12) at p 51.
71
obligation under HRL to protect life and to protect persons from torture and inhuman
and degrading treatment.450 The leading case introducing the concept of due diligence
into the context of a state’s duty ‘to ensure’, ie, to protect human rights, is Velásquez
Rodriquez v Hondoras, in which the Inter-American Court of Human Rights held:
‘172. …. 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 identified) 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.’451
Dealing with the question of what degree of due diligence is to be applied by a
state in order to meet its obligation to exercise due diligence the Court continued:
‘174. The State has a legal duty to take reasonable steps to prevent human rights
violations and to use the means at its disposal to carry out a serious investigation
of violations committed within its jurisdiction ….’452
The Court further clarified that ‘[t]his duty to prevent includes all those means of
a legal, political, administrative and cultural nature that promote the safeguard of human
rights …. Of course, …, the existence of a particular violation does not, in itself, prove
the failure to take preventive measures.’453
In the view of this reasoning, the ‘benchmark’ that the state has to meet is one of
reasonableness and seriousness.454
This or comparable benchmarks have since been applied by the European Court
of Human Rights (ECrtHR), eg, in the Osman v UK case.455 In this case, the Court held
that ‘it must be established … that the authorities … failed to take measures within the
450
CUDH Report (n 125) at p 37.
Velásquez Rodriquez case (n 441) at para 174 (emphasis added).
452
Velásquez Rodriquez case (n 441) at para 174 (emphasis added).
453
Velásquez Rodriquez case (n 441) at para 175. Cf art 2(2) ICCPR (n 446).
454
Chirwa (n 157) at p 15.
455
For instance, Osman v UK (n 441) ‘[The State is obliged] to take appropriate steps to safeguard the
lives of those within its jurisdiction’). Available at: (visited: 9 August 2006). Also Mahmut Kaya v Turkey,
EctHR, App No 22535/93, Judgment of 28 March 2000, paras, 101, 108-109, and the case Kilic v Turkey,
EcrHR, App No 22492/93, Judgment of 28 March 2000, paras 77, 83, both dealing with standards of due
diligence in the context of preventing violence by private actors and the failure to properly investigate.
Cited after CUDH Report (n 125) at p 37. Decisions available at:
http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database/ (visited: 5 September
2006).
451
72
scope of their powers which, judged reasonably, might have been expected to avoid that
risk.’456
Other monitoring bodies have embraced this approach, for instance the African
Commission.457 Arguably ‘international instruments and declarations increasingly
[recognize] the due diligence standard as a test for determining compliance by states
with the obligation to protect human rights.’458
The precise duties of a state flowing from this obligation to exercise due
diligence vary and appear to depend on the human right in question, the category the
state belongs to, and the factual circumstances of each case such as the proximity of the
state to the harmful conduct.459 A strong argument can be made that there is a
proportional relationship between the state’s duty to exercise due diligence, on the one
hand, and the degree of risk of violating human rights as well as the degree of danger
inherent in the PMC operation, on the other hand.460 In other words, the state’s
obligations increase with the risk which the PMC’s operation is likely to entail. Equally,
the state’s obligations are stricter the closer its relationship is to the PMC.461 As
indicated above, the obligation to protect includes the duty, where necessary, to establish
preventive regulatory instruments.462
The PMC industry as a whole operates in an environment, namely the
management and use of military force, which is inherently dangerous and prone to
violations of human rights. Moreover, states today are aware of the pervasiveness of the
phenomenon of PMCs and their increasing number and impact,463 whereas this
awareness did not exist in the 1990’s. For both reasons, all categories of states face the
duty under HRL to protect and to exercise due diligence to prevent private persons from
456
Osman v UK (n 441) at para 116 (emphasis added). Also applying a standard of reasonableness,
EcrtHR in E and Others v UK, App No 33218/96, Judgment of 26 November 2002, para 98, cited after
CUDH Report (n 125) at p 35.
457
African Commission in Social and Economic Rights Action Centre and the Centre for Economic and
Social Rights v Nigeria (n 441) in para 59 explicitly referring to the Velásquez Rodríguez case (n 441).
Cited after Chirwa (n 157) at pp 15-16.
458
Chirwa (n 157) at p 17 with further references; ICHRP ‘Beyond Voluntarism’ (n 12) at p 52.
459
See CUDH Report (n 125) at pp 34-41.
460
See CUDH Report (n 125) at pp 38-39.
461
See CUDH Report (n 125) at p 39.
462
CUDH Report (n 125) at pp 39-41.
463
As evidenced, ia, by the UK Green Paper (n 2) and the GAO Report (n 83).
73
harming other private persons, at the least within their territory and subject to their
jurisdiction.464
Since the duty to protect in its orthodox form is linked to a state’s territory and
jurisdiction,465 the Host State seems to be primarily bound to undertake all reasonable
steps to prevent the PMC from violating the human rights of the people within its
jurisdiction.466 This, it is argued, might include the duty to put in place regulatory
frameworks to control the PMC industry and even individual contracts of PMCs.467 The
question of whether a Host State’s protective measures meet the benchmark of
reasonableness cannot, as indicated, be answered abstractly. However, the existing case
law on regulatory frameworks appears to establish a low threshold, or, in the words of
one expert, ‘the State’s legislation must be pretty egregious before the Court will
determine that the legislation itself puts the State in breach of its obligation to exercise
due diligence.’468 The requirement of undertaking (only) reasonable steps allows for an
adjustment of the precise obligations to the individual Host State’s capacities. Rich
states with stable internal conditions will be able to install and enforce stricter conditions
than, arguably, developing states in unstable conditions, such as Afghanistan and Iraq.
The orthodox restriction of the duty to protect to a state’s territory and
jurisdiction links this duty to the principle of control.469 Only where a state exercises
actual control over its territory, ie, only where it is able to enforce its jurisdiction, is the
state under the obligation to protect.470 This entails, on the one hand, that states not
exercising effective control over parts of their territory, cannot be held responsible for a
failure to exercise due diligence in such uncontrolled parts; on the other hand, the
principle of control allows for a geographical extension of a state’s obligation to protect,
464
CUDH Report (n 125) at p 36 and p 39.
Cf art 2(1) ICCPR (n 446), Velásquez-Rodriguez case (n 441) at para 174.
466
For an assessment of Host State responsibility based on the doctrine of due diligence and its
limitations, see also Chirwa (n 157) at pp 26-28.
467
CUDH Report (n 125) at p 37 with a brief description of the regulation of PMC work in Iraq is
handled, and pp 39-40
468
CUDH Report (n 125) at p 38 commenting on cases before the ECrtHR.
469
Cf CUDH Report (n 125) at p 37.
470
Cf CUDH Report (n 125) at p 37. This is in line with the rules of state responsibility as reflected in the
ILC Draft Articles (n 156). For instance, a state is, in general, not responsible for the conduct of non-state
actors such as rebel groups in parts of the state territory which is not under the effective control of the
Government. Arg e Art 10 DARS (n 156). See also comments (2)-(4) to art 10 in ILC Commentary (n
156) at pp 112-113. Another question which cannot be addressed in this paper, is, whether and to what
extent a state is obliged to establish control over uncontrolled parts of its territory, eg the case of Lebanon
arguably not having effective control in its southern territories.
465
74
for this obligation not only refers to its own state territory but also to areas outside,
provided they are under its control, eg occupied territory.471
The assessment of the Home State’s obligations under the doctrine of due
diligence is more complex. As long as the PMC operates in its state of incorporation, the
above remarks on the Host State’s responsibility apply also to the Home State.
However, many PMCs operate in areas outside the territory and jurisdiction of
their Home State. Is the Home State nevertheless under an obligation to take reasonable
steps to prevent ‘its’ PMC from harming other states and their nationals? For instance, is
the Home State obliged to put into place a regulatory regime, eg a licensing regime with
the aim of regulating ‘its’ PMC industry and even the performance of specific contracts
abroad? Good arguments in support of such suggestions can be made:
To begin with, the principle of territoriality and jurisdiction as reflected in art
2(1) ICCPR has been criticized as being ‘open to serious question and [able to] operate,
if at all, only as a weak presumption.’472 A general ‘movement away from the
conventional view that human rights bind the state within its territorial frontiers only’
has been observed.473
Further, limiting the Home State’s duty to protect international human rights to
its territory and jurisdiction can be regarded as contradicting the notion of universality of
human rights.474 Though criticized, it still seems the majority view that human rights
apply universally, ie they are not subject to territorial boundaries and national
jurisdictions.475 However, if a Home State decides not to take reasonable steps against
471
CUDH Report (n 125) at p 37. See also Case concerning armed activities in the Congo (n 178). At p
70, para 216 the Court referred to its Legal consequences of a construction of a wall in the occupied
Palestinian territory case (n 268) in which the ‘Court further concluded that international human rights
instruments are applicable “in respect of acts done by a State in the exercise of its jurisdiction outside its
own territory”, particularly in occupied territories (ibid., pp. 178-181, paras. 107-113).’
472
I Brownlie System of the law of nations: state responsibility: part 1 (1986), at p 165, cited after Chirwa
(n 157) at p 29. Gibney et al (n 437) at p 267.
473
Chirwa (n 157) at p 29 citing Nicola Jägers Corporate human rights obligations: in search of
accountability (2002) at pp 166-167 and Viljam Engström, Institute for Human Rights, Abo Akademi
University, Finland ‘Who is responsible for corporate human rights violations?’ (2002), at p 18. The
Human Rights Committee appears also to interpret art 2(1) ICCPR broadly. Guy Goodwin-Gill argues in
The Refugee in international law (2d ed. 1996) at p 142, ‘[i]n the view of the Committee, the phrase
“within its territory and subject to its jurisdiction” refers not to the place where the violation occurred, but
to the relationship between the individual and the State concerned.’ Cited after Gibney et al (n 437) at p
277. Cf also I Brownlie System of the law of nations (n 472) at p 165.
474
Gibney et al (n 437) at p 267.
475
Universal Declaration of Human Rights (UDHR), UN General Assembly Resolution 217 (III)(A) of 10
December 1948, Preamble, last para. The UDHR is cited in the Preambles of all major human rights
treaties. The universality was confirmed in the GA Resolution 60/1 of 24 October 2005 on the World
75
‘its’ PMC to prevent human rights violations outside its jurisdiction, individuals in the
Host State who are harmed by PMC might end up without protection at all, in particular
in weak or even ‘failed’ states where the Host State’s government, if it exists at all, is
unable to protect its nationals from human right violations by PMCs.476
Moreover, restricting the duty to protect to the territory and jurisdiction of a state
permits Home States to ‘hide’ behind other states’ sovereignty.477 The Home State’s
argument would be that controlling the PMC industry and even specific contracts to the
effect that the PMC cannot perform a contract in the Host State would be tantamount to
interfering into the internal affairs of the Host State. Yet, it is posited, this possibility of
‘hiding’ behind other state’s sovereignty allows the Home State, with impunity, to be
‘complicit’ in the human rights abuses by the PMC in the Host State.478 Placing the
Home State under an obligation to prevent human rights abuses by ‘its’ PMCs would
help to curb such evasion.
Finally, broadening the scope of the duty to protect with the aim of including
also an obligation of the Home State to take reasonable steps to prevent human rights
violations outside its territory and jurisdiction, could serve as a corrective to the negative
effects of privatisation in general, and the privatisation of military force in particular.479
As shown above when assessing the attribution of PMC conduct to states, situations
remain in which private conduct cannot be attributed to a state although this state might
have considerable dealings with such private actors.480 There are also indications that
states deliberately (ab)use the services of PMCs to create a veil of ‘plausible
deniability’, ie they deliberately contract PMCs to conduct operations abroad which
would, if conducted by the state military, contravene international and/or domestic
obligations.481 However, pursuant to a common argument, a state should not be allowed
Summit Outcome, UN Doc A/Res/60/1, in para 121. On universalism and cultural relativism see HJ
Steiner / P Alston International Human Rights in Context (2ed), New York 2000, at pp 366-402.
476
Cf also Gibney et al (n 437) at pp 267-268.
477
This is lamented by Gibney et al (n 437) at pp 267-268.
478
Gibney et al (n 437) at p 268. However, the ILC Draft Articles 16-18 (n 156) address the issue of one
state being involved in the commission of international wrongful acts by another state. Compared to the
articles dealing with this issue at the time when Gibney et al published their article, the finally adopted
articles lowered the threshold for holding states responsible for assisting another state.
479
Hessbruegge (n 376) in his conclusion at pp 302-307 appears to argue in a comparable direction.
480
See above part III.4.
481
For more details see McCallion (n 383) 317, at p 319 and at pp 340 et seq, pp 345 et seq, and Singer,
PMF-study (n 1) at pp 206-209 regarding PMCs in the US’ Plan Columbia. From a constitutional
viewpoint, one problem is that the use of PMCs allows for a circumvention of troop caps which were put
in place by the US Congress. On the international plane, the ‘veil’ of private corporations between the
76
to evade its international responsibilities simply by privatising its powers and
functions.482
These arguments notwithstanding, the conclusion would be premature that a
state’s obligation under HRL to exercise due diligence extends to people living outside
its territory and jurisdiction, ie, outside its actual control. On the contrary, despite the
perceived tendency away from the orthodox view that HRL binds a state only in its
territory, state practice and court decisions still seem to support the orthodox view. One
section of the General Assembly Resolution on the World Summit Outcome 2005
specifically deals with human rights.483 This section, however, does not contain any
indication that states were of the view that HRL would generally bind them to protect
human rights outside their territory and jurisdiction. Paragraph 126 stipulates that ‘[w]e
resolve to integrate the promotion and protection of human rights into national policies
….’484 The implication of this reference to national policies becomes clear if one reads
the heading and the content of another section in the declaration with the title
‘Responsibility to protect populations from genocide, war crimes, ethnic cleansing and
crimes against humanity’.485 The resolution emphasises in para 138 with respect to these
explicitly cited crimes the duty of each state to protect its own population.486 The
following paragraph 139 then begins:
‘The international community, through the United Nations, also has the
responsibility to use appropriate diplomatic, humanitarian and other peaceful
means, in accordance with Chapters VI and VIII of the Charter, to help to protect
populations from genocide, war crimes, ethnic cleansing and crimes against
humanity.’487
Read in conjunction, paras 126, 138, 139 make it unmistakably clear that the
adopting states continue to uphold the primacy of state sovereignty to the detriment of a
broader interpretation of the duty under HRL to protect. This duty rests on the state with
respect to its own population, ie, within its territory and jurisdiction. Only if the serious
crimes enumerated in para 139 are concerned is the international community entitled to
protect, ie, to intervene, and even then only through the UN.
harmful conduct and the Contracting or Home State allows the state to deny plausibly any responsibility
for the harmful conduct.
482
Cf Prosecutor vs Tadic case (n 343) at paras 117 and 123.
483
GA Resolution 60/1 (n 475) at paras 121-131.
484
GA Resolution 60/1 (n 475) at para 126 (emphasis added).
485
GA Resolution 60/1 (n 475) paras 138-140.
486
GA Resolution 60/1 (n 475) para 138.
487
GA Resolution 60/1 (n 475) para 139.
77
The ICJ seems to support this stance in its Nicaragua case and its Case
concerning armed activities in the Congo.488 Addressing the alleged responsibility of the
United States for the violation committed by the Contras, the court clearly relied on the
requirement of attribution of harmful conduct.489 Where an attribution based on a direct
involvement of United States organs or agents in the harmful conduct could not be
proven, the court applied - still assessing the requirement of attribution – an effective
control test for answering the question, whether the degree of control of the United
States over the Contras was of such quality as to allow the general equation of the
conduct of the Contras with such of the United States.490 After this test ‘failed’, the
Court did not proceed to address a possible responsibility of the United States based on
the doctrine of due diligence.491 One should therefore be very careful in attempting to
base an argument for a broader interpretation of the duty to protect and the doctrine of
due diligence on this ruling.492
In its Case concerning armed activities in the Congo the ICJ addressed the topic
of a state’s obligation arising from the doctrine of due diligence or, in the words of the
Court, ‘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.’493 However, this quotation on its own indicates, as
well as a closer reading of the judgment as a whole, that the ICJ still upholds the
orthodox view that a state’s duty to exercise due diligence to prevent, ia, human rights
violations, is restricted to the territory under its effective control.494
488
Nicaragua case (n 171), Case concerning armed activities in the Congo (n 178).
Nicaragua case (n 171), eg, at paras 109, 116 (in the context of IHL).
490
See above part III.4(e).
491
Nicaragua case (n 171) at paras 116-122 (in connection with IHL).
492
Chirwa (n 157) at p 29 therefore seems to read too much into the two cases cited by him, among them
the Nicaragua case. It seems largely undisputed today that human rights violations by state organs or
agents give rise to the state’s responsibility even if these violations are committed abroad, provided that
the harmful conduct can be attributed to the state. But this concerns a state’s own duty to respect HRL. A
completely separate issue is, whether the doctrine of due diligence allows to hold a state responsible for its
failure to prevent private conduct which is not attributable to the Home State but might be harmful to
private nationals of another state. Because of the private-private relationship of the harmful conduct, one
should also be careful to base a Home State’s obligation to prevent its nationals from harming foreign
nationals outside its territory on the reasoning of the Corfu Channel case (n 432). This case concerned the
obligations of states vis-à-vis states only.
493
Case concerning armed activities in the Congo (n 178) at p 60, para 179 (emphasis added).
494
Case concerning armed activities in the Congo (n 178) at p 60, para 179, at p 70, para 216, at p 71,
para 220, at pp 77-78, paras 245-248. As can be derived from this passages, the court distinguished
between the conduct of members of (Uganda’s) armed forces and such of non-state (rebel) actors. The
former is attributable to the state irrespective of it the being executed in the occupied territory (Ituri) or
not. The latter was found not to be attributable to the state because of a lack of evidence of sufficient
489
78
In summary, there are good arguments for an extension of a Home State’s
obligation under HRL to exercise due diligence to encompass also a duty to prevent its
nationals such as PMCs from harming other Host State’s nationals. Further, a general
movement in this direction has been observed.495 However, the prevailing view among
states and, at least, the ICJ appears to be that the state’s duty under HRL to exercise due
diligence is limited to the territory under its control. Against this background, a strong
argument can be made that HRL obliges a state to enact regulating mechanisms such as
licensing regimes for the protection of the population within its jurisdiction. In contrast
to that, HRL at present does not seem to impose on states a duty to prevent its nationals
from violating human rights abroad.496
A comparable situation exists when it comes to the Contracting State. If this state
contracts a PMC to operate in areas which are under the physical control of the state, it
will be under an obligation to take reasonable steps to prevent the PMC from interfering
with the human rights.497 On the other hand, where the PMC is to operate in the Host
State in areas not under control of the Contracting State, it will be difficult, in the light
of the state practice and judgments mentioned in connection with the Home State, to
base the Contracting State’s obligation under HRL on the doctrine of due diligence.
(c)
Due diligence and international humanitarian law
The Geneva Conventions and the Additional Protocol I both contain norms that are
understood to impose on states an obligation to exercise due diligence to prevent PMCs
from violating IHL.
Article 91 of the Protocol I suggests the existence of due diligence obligations
under IHL. Pursuant to the article’s second sentence, a party to the conflict ‘shall be
control over the rebels. The duty to exercise due diligence (‘vigilance’) in preventing human rights
violations by these rebels extended only to the areas under occupation, ie physical control, not beyond. For
a more detailed interpretation of the judgment see CUDH Report (n 125) at pp 43-44 in fn 62.
495
Though it sometimes seems that ‘wishful’ thinking prevents the necessary deeper exploration of
judgments which are referred to in support of a broad interpretation of the duty to protect, as appears to be
the case in the discussion reflected in the CUDH Report (n 125) at pp 36-41.
496
A distinct issue is, that states are under an obligation to ensure that persons exercising their authority
respect human rights also outside the state’s territory. Cf, eg, the decision of the European Commission
for Human Rights in Cyprus v Turkey, referred to in Gibney et al (n 437) at p 283. This duty to respect
sometimes seems to be mingled into the discussion of the scope of the duty to protect.
497
This might include a duty to put in place a regulatory framework such as licensing regimes. It might
also entail the obligation to issue clear Rules of Engagement (ROE) which provide guidance to the PMC
on how to conduct its operations. Cf CUDH Report (n 125) at p 39.
79
responsible for all acts committed by persons forming part of its armed forces.’498 The
ICRC Commentary on this provision specifically mentions the concept of due diligence:
‘As regards damages which may be caused by private individuals, i.e., by
persons who are not members of the armed forces (nor of any other organ of the
State), legal writings and case-law show that the responsibility of the State is
involved if it has not taken such preventive or repressive measures as could
reasonably be expected to have been taken in the circumstances. In other words,
responsibility is incurred if the Party to the conflict has not acted with due
diligence to prevent such acts from taking place, or to ensure their repression
once they have taken place.’499
Other substantive norms of IHL can also be interpreted to impose obligations
upon states to exercise due diligence with respect to the substantive obligation in
question. 500
Against this background, the existence of due diligence obligations under IHL
would largely depend on the applicability to the state of the particular rule of IHL from
which the obligation to exercise due diligence is derived. In the majority of the cases, the
applicability is triggered by the fact that the state is a party to the armed conflict.501 In
any case, the circumstances of each case determine what measures a state will have to
put in place.502 For instance, the installation of an regulatory framework, such as
licensing laws, and the training of PMC employees in IHL are perceived to constitute
reasonable steps for a state to meet its due diligence obligation.503
Common art 1 of the Geneva Conventions is also construed by some experts to
advocate the existence of due diligence obligations under IHL.504 Pursuant to common
articles 1 of the Geneva Conventions the ‘[t]he High Contracting Parties undertake to
respect and to ensure respect for the present Convention in all circumstances.’505 The
duty to ensure could be construed to encompass a duty to exercise due diligence,
‘somewhat analogous to the concept of due diligence under HRL’,506 however ‘broader
498
Article 91 Protocol I was already introduced in part III.4(f). As stated there, the article reflects
customary international law. Commentary Protocol I (n 121) at p 1053, para 3645.
499
Commentary Protocol I (n 121) at pp 1057-1058, para 3660 (emphasis added).
500
Cf CUDH Report (n 125) at pp 43-45, Guillory (n 174) at p 132 and in fn 139-141; eg, arts 1, 58, 86,
87 Additional Protocol I, art 43 of the Hague Regulations, see also art 28 of the Rome Statute.
501
For instance, art 91 Protocol I (n 216).
502
CUDH Report (n 125) at pp 45-47.
503
The issuing of Rules of Engagement (ROEs) is also mentioned in this context. ROEs stipulate how
troops or, in this case, PMCs have to operate, in particular, under which circumstances they are allowed to
use force. Cf CUDH Report (n 125) at pp 42-43.
504
CUDH Report (n 125) at pp 43.
505
Geneva Conventions I, II, III, IV (n 215) (emphasis added).
506
CUDH Report (n 125) at p 42.
80
in the sense that it covers the acts of PMCs in areas where the State is not necessarily
exercising its jurisdiction.’507 The advantage of founding due diligence obligations on
common art 1 of the Geneva Conventions would be that this norm does not presuppose
the participation of a state in an armed conflict or occupation. However, it is disputed to
what extent common art 1 has binding effect on states.508 For this reason, common art 1
is a fairly weak bases for due diligence obligations under IHL.
However, the issue of due diligence obligations under IHL seems to be less
important than in other areas of international law, since the obligations flowing from the
Geneva Conventions and their Protocols are understood to be obligations of result, at
least if the state is a party to the conflict.509 Either common art 1 or the respective
substantive provisions of the Geneva Conventions are so interpreted.510 In any case, if a
state commissions a PMC with obligations which, under IHL, bind the state, it is under
an obligation ‘to ensure that those substantive obligations are fulfilled.’511 On the other
hand, in relation to states not party to the conflict, the obligations imposed by common
article 1 of the Geneva Conventions are ‘certainly not interpreted as an obligation of
result’.512 In any case, the failure of the Home State or the Host State to install a
regulatory regime is, at present, not per se a violation of common art 1.513
6.
Preliminary summary
The concept of due diligence allows international law to cast a net widely to catch those
cases in which PMC conduct cannot be attributed to the state (or not the state of choice).
507
CUDH Report (n 125) at p 46.
CUDH Report (n 125) at p 46 with further reference.
509
Obligations of result means that the state is bound to reach a specific outcome, ie, result. This implies
that a state cannot excuse the failure to deliver this result by referring to the best efforts it made with the
aim of delivering the result. Cf Comment 11 on art 12 DARS in ILC Commentary (n 156) at pp 130-131.
510
Cf discussion in CUDH Report (n 125) at pp 45-46. Cf also ICRC Commentary to the Geneva
Convention of 12 August 1949, Volume IV, Geneva, 1958, art 1, at p 16 ‘The proper working of the
system of protection provided by the Convention demands in fact that the Contracting Parties should not
be content merely to apply its provisions themselves, but should do everything in their power to ensure
that the humanitarian principles underlying the Conventions are applied universally.’ Ibid at p 17 ‘…,it is
clear that Article 1 is no mere empty form of words, but has been deliberately invested with imperative
force. It must be taken in its literal meaning.’ Cf also ICJ Legal consequences of the construction of a wall
in the occupied Palestinian territory (n 268) at para 156 referring to erga omnes obligations in the area of
humanitarian law and at para 157 referring specifically to art 1 Geneva Convention I (n 215).
511
CUDH Report (n 125) at p 46.
512
CUDH Report (n 125) at p 46, citing the CIL Rules (n 231), rule 144, at pp 509-513 and also referring
to Volume II of the ILC Rules, Practice, pp 3288-3302.
513
CUDH Report (n 125) at p 46.
508
81
Yet, it remains a net with holes. Moreover, the woolly character of the concept of due
diligence makes it hard to predict precisely what cases can be caught with this net.
Under HRL, the concept of due diligence seems to be well established.
However, the majority view still subjects this concept to the principle of territoriality.
This limits the scope of application considerably to the effect that, under HRL, only
those states incur responsibility for not having taken reasonable steps to prevent harmful
PMC conduct which exercise physical control over the territory where the harmful
conduct occurs. This leaves open the cases in which a Home State, Contracting State or
even Host State has no effective control over the PMC’s area of operation.
Under IHL, much depends on whether a state is party to an international armed
conflict. If this is the case, this state is likely to be affected by the duty to exercise due
diligence and to take reasonable steps to ensure that the state’s obligations under the
Geneva Conventions and the Protocol I are met. Here, the focus is likely to be on the
Contracting State and the Host State, the former being the one in dire need of external
military services because he is involved in an armed conflict, the latter being the one in
which the conflict takes place. Again, the Home State is prone to escape the net.
It is important, though, not to lose sight of two points. First, the duty to exercise
due diligence does not have its sole roots in HRL or IHL. Other international obligations
might call for the exercise of due diligence as well. The ICJ’s reasoning in the Corfu
Channel case might be a starting point, whereas a state is obliged ‘not to allow
knowingly its territory to be used for acts contrary to the rights of other States.’514 One
could make the argument that a PMC uses the Home State’s ‘territory’ because it is
incorporated and probably maintains a head office there. If the Home State gains
knowledge, eg through an existing licensing procedure, of the PMC’s intended
operations abroad being harmful to other states, then the Home State might be viewed
under a duty to prevent its PMC from conducting the harmful operations.515 This duty
could be supported by duties flowing from neutrality laws and the prohibition not to
514
See above part III.5(a).
See also Brownlie System of the law of nations (n 472) at p 165 ‘In general terms … the test is that of
physical control and not sovereignty …. The state is under a duty to control the activities of private
persons within its state territory und the duty is no less applicable where the harm is caused to persons or
other legal interests within the territory of another state.’ This leaves open, however, the question whether
and to what extent the Home State is under an obligation to put into place instruments such as licensing
regimes that allow the state to gain knowledge. The suggested application of the Corfu Channel case (n
432) might impel Home States to avoid establishing licensing regimes in order to avoid gaining the
knowledge which could eventually lead to their international responsibility for private conduct.
515
82
interfere in internal affairs of other states.516 The development in international
environmental law might be seen as expressing a general tendency towards a state’s
obligation to ensure that no harmful activities emanate from its territory.517 This
obligation to ‘ensure’ could be interpreted to oblige a Home State to establish
instruments which allow it to conduct a risk assessment, or, the other way round, which
prohibits the state to deliberately close its eyes to risks to other states.
Second, with particular respect to the Home State which often seems to escape
the net of responsibility, it might be worth developing the possibility of basing an
international responsibility on arts 16 – 18 DARS. In other words, it might be useful to
explore whether the Home State is unlawfully involved in an international wrongful act
of another states.518 However, the elements of the delict of aiding and assisting (art 16
DARS) are still in a young stage of development.519 Furthermore, this delict and the
ones laid down in arts 17520 and 18521 have a rather narrow scope of application. One
reason is that they presuppose that the assisting, controlling or coercing state acted
deliberately with respect to the internationally wrongful act commissioned by another
state.522 Another reason is that, under the present state of law, states are generally not
obliged to react to violations of international obligations by other states. Therefore they
are not obliged to check whether their own conduct amounts to prohibited assistance.523
Bearing this in mind, art 16 DARS might apply if the Home State licenses a contract in
which a military provider firm undertakes to support the Contracting State in its
unjustified attack on a third state if it can be proven that the licence was issued with the
aim of supporting this attack.524
516
See above part III.3(a) and (b). Milliard (n 40) at p 76 seems to argue in favour of such a solution.
See above part III.5(a).
518
Articles 16 – 18 DARS (n 156) deal with cases in which one state knowingly aids, assists, directs or
controls another state in the commission of an international wrongful act, or even coerces to commit such
acts.
519
Schröder (n 156) at p 548, para 26.
520
Direction and control of another state’s delict. See comments in ILC Commentary (n 156) at pp 160 et
seq.
521
Coercion of another state. See comments in ILC Commentary (n 156) at pp 165 et seq.
522
Comments (5)-(7) on art 16 in ILC Commentary (n 156) at pp 156-157.
523
Schröder (n 156) at p 548, para 26 with further references.
524
This depends on whether the granting of the licence by the state authority could be equated to
assistance in the sense of art 16 DARS. It further depends on whether the state authority had the intention
of aiding or assisting in the international wrongful act of the Contracting State. As regards the requirement
of intention see comment (5) on art 16 in ILC Commentary (n 156) at p 156.
517
83
IV.
INTERNATIONAL ORGANISATIONS’ RESPONSIBILITY
1.
Introduction: international organisations and their present and potential
future use of PMCs
The issue of IOs incurring responsibility in connection with the use of PMCs is far from
theoretical. IOs have already profited from the services of PMCs. This includes
prominent organisations like the International Monetary Fund (IMF)525 and the UN.526 It
seems safe to assume that IOs will continue to employ PMCs, given the prevalence of
armed conflicts worldwide on the one hand, and the reluctance of states’ governments to
contribute personnel to multilateral operations responding to these conflicts and the
ensuing humanitarian disasters on the other hand.527 Indeed, numerous voices advocate
the integration of PMCs in United Nations’ peacekeeping and enforcement missions, or
the entire outsourcing of such missions to PMCs.528 These voices come, understandably,
from the industry itself,529 but also from external authors.530 Even inside the UN, the
option of using military provider firms has been seriously considered.531
525
Singer, PMF-study (n 1) at p 182 with further references in fn 76.
Singer, PMF-study (n 1) at p 82, noting that ‘[d]emining operations have been contracted out in nearly
every U.N. operation, with the overall world market reaching $400 million annually.’ (Footnote omitted)
Singer also mentions that firms like DynCorp benefited from the outsourcing of ‘portions of police and
logistic functions in peacekeeping operations.’ Ibid at p 182-183 referring to the Economic Community of
West African States (ECOWAS) using PMCs for deploying troops to Sierra Leone and Liberia. Ibid at p
183 citing the example of the UN contingent employing South African and US PMCs. Guillory (n 174) at
p 131 referring to 1200 DynCorp personnel that served for the United Nations peacekeeping mission in
Angola in 1999. Also PW Singer ‘Should Humanitarians Use Private Military Services?’, Human. Aff.
Rev., Summer 2004, at pp 15,16 [following: Singer Humanitarians], available at
http://www.humanitarian-review.org/upload/pdf/SingerEnglishFinal.pdf (visited: 15 June 2005).
527
Cf Singer, PMF-study (n 1) at p 82 mentioning, ia, the (then) intention of the UN to increase ‘its annual
budget on security for its relief and refugee agencies by 300 percent.’ (footnote omitted) Ibid at p 182
noting that PMCs allow IOs to access military skills through PMCs which were inaccessible in the past, eg
in the sector of intelligence for IOs such as the Southern African Development Community (SADC) or the
Western European Union (WEU).
528
Fountain (n 9) at pp 227 et seq; see also Singer, PMF-study (n 1) at p 183 referring to such proposals
from ‘past commanders of UN peacekeeping operations, a number of humanitarian advocates, and even
Sir Brian Urquardt, who is considered the founding father of UN peacekeeping.’ (footnotes omitted) Ibid
at pp 182-183 describing three scenarios in which PMCs could be involved in future UN missions.
529
See IPOA’s concept papers 1-3 at http://ipoaonline.org/en/publications/research.htm (visited: 19 July
2006); Singer, PMF-study (n 1) at pp 185-186 with a description of EOs 1994 ‘business exploration’ of a
‘privatized intervention’ into Rwanda to stop the genocide there.
530
See above in n 528.
531
Singer, PMF-study (n 1) at p 185 referring to discussions in 1996 on whether to employ EO to establish
a humanitarian corridor to Rwandan refugees. Cf also T Deen ‘UN Rejects Private Peacekeepers’ in Inter
Press News of 27 August 2004, available at:
http://www.globalpolicy.org/security/peacekpg/training/0827rejects.htm (visited: 22 June 2006).
526
84
2.
Preliminary remarks on the responsibility of international organisations for
the commission of international delicts
A few preliminary remarks are necessary to clarify the scope of the following
assessment.
The International Law Commission (ILC) has provisionally adopted draft articles
on the responsibility of IOs (DARIO)532. Article 2 DARIO defines an international
organization as ‘an organization established by a treaty or other instrument governed by
international law and possessing its own legal personality.’ IOs ‘may include as
members, in addition to states, other entities.’533 This paper will follow the definition in
art 2 DARIO.
Addressing IOs’ responsibility for the commission of delicts is a new, yet
necessary undertaking, and a complex one at that.
It is new because it was not before the 20th century, especially after the Second
World War, that IOs increased significantly in number and impact leading to a sharp
increase of risks that might be attributed to IOs.534 From this follows the necessity to
532
The ILC started to deal with the issue of ‘responsibility of international organizations’ in 2000, when it
decided to include it into its long-term programme of work. In 2002 the ILC decided to include the topic
in its programme of work, see UN Doc A/57/10 (2002), at Chapter VIII (following: ILC 2002 Report). In
addition, the ILC appointed Prof Gaja as Special Rapporteur for the topic. At the same time, the ILC
installed a working group on the issue. The Special Rapporteur has issued four reports for the ILC, UN
Doc A/CN.4/532 of 26 March 2003, Un Doc A/CN.4/541 of 2 April 2004, UN Doc A/CN.4/553 of 13
May 2005, UN Doc A/CN.4/564 of 28 February 2006. The ILC considered the reports of the Special
Rapporteur and provisionally adopted most of the proposed draft articles, as laid out in the ILC’s reports
to the General Assembly. There have been three reports of the ILC so far, containing the Draft Articles
that have been provisionally adopted so far, and the ILC’s comments thereto, UN Doc A/58/10 (2003), at
Chapter 4 (following: ILC 2003 Report), UN Doc A/59/10 (2004), at Chapter 5 (following: ILC 2004
Report), UN Doc A/60/10 (2005), at Chapter 6 (following: ILC 2005 Report). States and IOs have been
invited to submit information regarding practice and cases relevant to the topic. Various states and IOs
have followed this invitation and provided information that are contained in the following documents: UN
Doc A/CN4./545 (2004) (following: Comments IOs 2004); UN Doc A/CN.4/547 (2004) (following:
Comments States 2004); UN Doc A/CN.4/556 (2005) (following: Comments 2005) ; UN Doc A/CN.4/568
(2006) (following: Comments IOs 2006). All documents available at: http://www.un.org/law/ilc/ [visited:
10 May 2006).
The International Law Association (ILA) also dealt with the issue when assessing the
‘accountability of international organizations’. For details see the 2004 Final Report of the ILA
(following: ILA Final Report) and its Resolution No 1/2004 of 21 August 2004. Documents available at:
http://www.ila-hq.org [visited: 10 May 2006].
533
Article 2 DARIO, ILC 2003 Report (n 532). The submissions of IOs and States so far to the proposed
definition signal approval of the proposed definition (except some minor remarks), see Comments States
2004 (n 532) at pp 5-6, Comments IOs 2004 (n 532) at pp 10-11, Comments 2005 (n 532) at pp 12-33. See
also E Klein (n 510) at p 255, paras 12-33.
534
Cf the description of the role of IOs in M Hirsch The responsibility of international organizations
toward third parties: some basic principles, 1995, at pp 1-5, eg noting that the number of IOs worldwide
85
tackle the question of IOs’ responsibility, as there appears to be consent among legal
scholars,535 states536 and IOs537 that the rules of responsibility of IOs have not kept pace
with the increase of IOs in number and impact, and that they are still far less developed
than the rules concerning the responsibility of states for the commission of delicts. The
necessity to further develop the regime of responsibility is also evidenced by the
ongoing drafting process of the ILC.538
The complexity of devising a responsibility regime for IOs stems, ia, from two
reasons: first, existing IOs differ considerably, frequently resulting in classifications
pursuant to certain indicators (eg geographical or functional activity).539 Second, a
rose from 37 in 1909 to 263 in 1994, and further pointing out that in comparison to the first IOs with
‘narrow spheres of activity, mainly of a technical nature … in the first half of the 20th century states
established organizations which were designed to regulate a wide range of activities, including
maintenance of international peace and security ….’ (at p 3) IOs today may significantly influence or
regulate activities of states or between them. Examples are numerous, eg in the field of economics
(European Community, WTO, World Bank), international security (NATO, United Nations, especially
Security Council) and the safeguarding of Human Rights (UN Human Rights Commission, European
Court of Human Rights) (at p 3), as well as in the ‘creation and supervision of “international regimes”’ (at
p 4 with examples of regulations of telecommunication, flights, nuclear non-proliferation). Other sources
estimate the number of ‘intergovernmental organisations’ as exceeding 2,000, Yearbook of international
organizations 2003-2004 (40ed), cited after DJ Harris (n 156) at p 139.
535
M Hirsch (n 534) at p xiii; WE Holder ‘International organizations: accountability and responsibility’
(2003) 97 Am Soc’y Int’l L Proc 231, at p 235; G Hafner ‘Accountability of international organizations’
(2003) 97 Am Soc’y Int’l L Proc 236 at pp 237 et seq; I Scobbie ‘Unchart(er)ed waters?: consequences of
the advisory opinion on the legal consequences of the construction of a wall in the occupied Palestinian
territory for the responsibility of the UN for Palestine’ (2005) 16 Eur J Int’l L 941 at pp 954-956; E Klein
(n 510) at pp 286-288, paras 102-105. K Ginther ‘International organizations, responsibility’, in
Encyclopedia of Public International Law, Vol. 2, (EPIL II), Amsterdam 1995, at pp 1338-1339.
536
For example, from Germany’s submission to the ILC in the drafting process, in Comments 2005 (n
532) at p 47, one can infer that Germany considers the rules of the responsibility of IOs for international
delicts as little developed: ‘In Germany’s opinion there is no customary international law on the
responsibility of international organisations. Practice to date shows that in a majority of cases, Germany
has presumed that the responsibility of member states and of international organizations is separate.’
(Emphasis added); Mexico’s submission, Comments 2004 States (n 532), at p 4 is more explicit, stating
that the ILC’s work ‘fills a real need’.
537
As can be inferred from the submission of the IMF during the drafting process, Comments 2004 IOs (n
532) at pp 6-7, where the IMF expresses its concerns in the approach of the ILC of using the ILC draft
articles on state responsibility as a starting point.
538
See submissions of states and IOs during the drafting process of the ILC (n 532). See also the result of
the ILA’s work of many years on the related topic of the accountability of IOs in ILA 2004 Final Report
and Resolution (n 532).
539
A geographical classification of IOs can be found in Rudolf L Bindschedler ‘International
organizations, general aspects’, in: EPIL II (n 535), 1995, at p 1289. Bindschedler distinguishes at pp
1291-1292 universal or global organizations (eg United Nations) from regional organizations. At p 1292
he further distinguishes political (eg collective security, maintenance of peace, dispute-settlement,
alliances) from non-political organizations (eg Universal Postal Union). Another classification is proposed
by Ginther pursuant to whether the IO is established ‘to spread risks and to decrease financial costs of
certain operations which can be implemented in cooperation (such as the European Launcher
Development Organization …) … [or] organizations whose principal aim is to create integration between
states by formulating rules for the international community (such as GATT and OECD), K Ginther Die
völkerrechtliche Verantwortlichkeit internationaler Organisationen gegenüber Drittstaaten (1969) at pp
86
variety of relationships between IOs and other subjects of international and national law
may be discerned. They can roughly be divided into internal and external relationships.
The former exist between the IO and its members540 and staff, whereas the latter exist
between the IO and a variety of ‘third parties’ (non-member states, international
organizations, private contractors, private individuals without contractual relationship
toward the IO).541 A rather ambiguous relationship exists between the IO and its Host
State.542 Within each relationship, the possibility exists that the IO might contravene its
obligations vis-à-vis the other parties. The treatment of these potential victims does not
necessarily have to follow the same rules when it comes to establishing the
responsibility of IOs for the commission of international delicts. This part of the paper
will focus only on the responsibility of IOs for the commission of international delicts,
ie delicts vis-à-vis other subjects of international law.543 Further, it will not deal with
74-77; see further Holder (n 535) at p 234. For an in-depth explanation of global and regional IOs, judicial
institutions and some common problems see DW Bowett The law of international institutions (4ed),
London 1982.
540
States and/or international organisations and in exceptional cases other entities. See definition in Draft
Article 2, ILC 2003 Report (n 532). However, in certain cases, the relationship between the IO and its
member may be deemed to be external, too. See below in nn 541 and 543.
541
When speaking about ‘third parties’ one usually refers to victims that are not a member of the IO in
question. Yet, as Hirsch (n 534) at p xiv points out, ‘members of the wrongdoer organization may also be
considered “third parties” if their rights are breached outside the context of their membership ….’ The
same must be true regarding the IO’s conduct toward its staff. For a comparable classification of
relationships see E Suzuki / S Nanwani ‘Responsibility of international organizations: the accountability
mechanisms of multilateral development banks’ (2005) 27 Mich J Int’l L 177, at p 190; cf also comment
(10) on Draft Article 3, in ILC 2003 Report (n 532) at pp 48-49 and ILC 2002 Report (n 532), para 467.
542
The ambiguity stems from the fact that the Host State often is a member of the IO. Yet, this does not
necessarily have to be the case. The relationship between the IO and the Host State is normally governed
by treaties between the IO and the Host State (eg Headquarters Agreement between the UN and the USA).
These agreements will usually provide for a large degree of immunity of the IO from domestic
jurisdiction, as well as for other privileges. Those special rules will remain outside the scope of this essay.
For details see AS Muller International organizations and their host states, aspects of their legal
relationship 1995.
543
The division into internal and external relationships of the IO is not free from ambiguity, either. In
particular, the relationship between a member state and the IO may fall into both categories; cf above n
541. Irrespective of the nature of the obligation (internal or external), any act of the IO contravening the
duty may give rise to international responsibility. See arts 3, 4(4) and 8(2) DARIO comments (10)-(11) on
art 4 DARIO in ILC 2004 Report (n 532) at pp 107-108, and comments (4)-(6) on art 8 in ILC 2005
Report (n 532) at pp 88-89.
For details on the relationship between the IO and the Host State see AS Muller (n 542). Private
persons (individuals and corporations) will not be dealt with specifically in this essay, as they are not
considered subjects of international law, except in the area of human rights law; see E Suzuki / S Nanwani
(n 541) at pp 190 et seq for further references. With respect to the relationship between the IO and its staff
see Chittharanjan Felix Amerasinghe Principles of the institutional law of international organizations,
1996, at pp 323-368.
87
questions of immunities and privileges enjoyed by many IOs, for immunities and
privileges do not exclude the determination of international responsibility of IOs.544
Fuelling the complexity are possible arguments for limiting the responsibility of
IOs, compared to the generally unlimited responsibility that a state incurs for the
commission of internationally wrongful acts.545 Two reasons stand out, whereby one
relates to the relationship between the IO and its members, and the other concerns the
relationship between the IO and the non-member victims of the conduct in question.
With respect to the relationship of the IO toward its members, it must be borne in
mind that IOs are founded by their members to fulfil specific purposes and have their
own organs to perform certain functions. For this, the members vest the IO with certain
powers.546 From this ‘principle of speciality’547 follows that, under normal
circumstances, the bases for attributing responsibility to an IO, on the one hand, and to a
state, on the other hand, cannot be equated. The fact that an IO possesses only derived
powers limited by its purpose and functions, and that it usually does not possess
territorial jurisdiction,548 could be used as an argument for limiting IOs’ responsibility
and for shifting it to the member states.
Regarding the organisation’s relationship toward the victim of the conduct in
question, there might be cases in which the argument is forwarded by the victim that it
has never recognized the IO and that it does not accept the attempt by its members to
544
ICJ Difference relating to immunity from legal process of a Special Rapporteur of the Commission on
Human Rights case, ICJ Report 1999, 62, at p 89, para 66.
545
See art 1 DARS (n 156); K Ginther (n 535) at p 1336.
546
Cf in general regarding IOs R Bindschedler (n 539) at pp 1289 et seq; further: K Wellens
‘Accountability of international organizations: some salient features’ (2003) 97 Am Soc’y Int’l L Proc 241
stating that ‘rules have to keep the balance between preserving decision-making autonomy for the IO and
guaranteeing that it will not be able to avoid accountability.’
547
ICJ Legality of the use by a state of nuclear weapons in armed conflict (n 22) at p 78, para 25: ‘The
Court need hardly point out that international organizations are subjects of international law which do not,
unlike States, possess a general competence. International organizations are governed by the "principle of
speciality", that is to say, they 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.’
548
Cf K Wellens Remedies against international organisations 2002, at pp 19-23 describing distinctive
features between states and IOs; see also ICJ Legality of the use by a state of nuclear weapons in armed
conflict (n 22) at p 78, para 25 stating that IOs are different form states because they do not possess a
‘general competence’.
88
limit their responsibility simply by creating a purportedly abstract IO.549 The protection
of third party interests thus might call for a limitation of the IO’s responsibility.550
Striking the balance between the interests of the parties involved seems to be
crucial, ie balancing the interests of the IO, its members and third parties. In attempting
to do, so it might prove useful to enquire ‘who has to bear the loss that resulted from a
certain activity?’551 When contemplating the consequences of holding an IO responsible,
the ‘implications upon the relationship between [the IO] and its members’ should be
considered.552 It might further prove useful to take account of the underlying goals of the
rules of international responsibility, ie the deterrence of violations of obligations under
international law, as well as the provision of remedies for the victims of such
violations.553 Finally, the interests of the IO should be considered. This paper works on
the presumption that IOs, in order to fulfil their purposes and functions, require
independence from their member states in the sense that member states should refrain
from unduly interfering into the internal affairs of the IO with the aim of promoting
particular state interests.554
Due to the limited scope of this paper, only some selected issues can be
presented, aimed at highlighting the complexity of the topic at hand, namely, the
responsibility of IOs in connection with PMC conduct. This selection will mostly
address rather general issues, applicable to all IOs.
3.
General rules of international organisation’s responsibility
International responsibility of an IO arises if it commits an internationally wrongful act.
This general rule has its origins in the context of state responsibility but undisputedly
549
This concerns the rule res inter alios acta, ie the argument that the treaty by which the members of the
IO establish the IO is in the relationship toward third parties irrelevant, cf M Hirsch (n 534) at p 15. A
similar rule of customary international law pacta tertiis nec nocent nec prosunt is reflected in Art. 34 of
the VCLT 1969 (n 123).
550
E Klein (n 510) at pp 286-287, paras 101, 104.
551
M Hirsch (n 534) at p 173. A number of questions might help in finding a solution, like ‘who has a
better capability to protect himself in advance; what the implications would be of imposing responsibility
on the wrongdoer, or on the other hand, of leaving the victim without remedy ….’, ibid, p 174.
552
Ibid at p 174.
553
Ibid at pp 7-8 with further references in n 37.
554
The ICJ’s Reparations for injuries case (n 12) at pp 178-179 lends support to this presumption. But see
RW Grant / RO Keohane ‘Accountability and abuses of power in world politics’ Working Paper 7/2004 of
the Institute for International Law and Justice, available at http://www.iilj.org/papers/2004/2004.7.htm
(visited: 28 August 2006). Grant / Keohane, ia, address the accountability of IOs and the potential abuse
of power by creating organizations like IOs or NGOs that are not accountable.
89
also applies to IOs.555 The same holds true for the definition of an internationally
wrongful act of an IO which follows the one developed in the area of state
responsibility.556 In the words of Article 3(2) DARIO, an internationally wrongful act of
an IO exists ‘when conduct consisting of an act or omission: (a) is attributable to the
international organization under international law; and (b) constitutes a breach of an
international obligation of that international organization.’557 However, when it comes to
further concretising these two preconditions of an internationally wrongful act, a number
of challenges arise both in the context of international obligations of the IO and the
context of attribution of the conduct in question. The differences between states and IOs
alluded to above call for care when principles and rules of state responsibility are
transferred to IOs. Moreover, situations might exist in which the rules of state
responsibility offer no solution at all to special issues arising in the context of IOs
activity.558
4.
Breach of international obligation
Article 8 DARIO – existence of a breach of an international obligation – reads as
follows:
‘1. There is a breach of an international obligation by an international
organization when an act of that international organization is not in conformity
with what is required of it by that obligation, regardless of its origin and
character.
2. Paragraph 1 also applies to the breach of an obligation under international law
established by a rule of the international organization.’559
It is obvious that this suggested definition of international obligations (and the
related arts 9 – 11 DARIO)560 ‘correspond to a large extent’ with art 12 DARS (and the
555
R Wolfrum, ‘Internationally wrongful acts’, in: EPIL II (n 535), p 1398, at p 1398; WE Holder (n 535)
at p 234; M Hirsch (n 534) at pp 8-10; Draft Article 3(1) and comments 1, 5 thereto, in ILC 2003 Report
(n 532) at pp 45, 47. Various bases have been used to found this rule with respect to IOs, such as their
endowment with legal personality which makes them subjects of international law, general principles of
law and customary international law, see M Hirsch (n 534) at pp 8-10 with references to the proponents of
the different legal bases, as well as the elements of ‘practice’ and ‘opinio juris’ in the context of
customary international law.
556
As reflected in art 2 DARS (n 156).
557
See ILC 2003 Report (n 532) at pp 45-49. (Note that in comment 1 to this art 3 DARIO the ILC
suggests that there might be situations in which an IO incurs responsibility for the conduct of states or
other IOs.) See also R Wolfrum (n 555) at p 1399; M Hirsch (n 534) at pp 12-13.
558
E Suzuki / S Nanwani (n 541) at pp 193 et seq; M Hirsch (n 534) at p 11.
559
Draft Article 8, in ILC 2005 Report (n 532) at pp 86-87.
560
Draft Article 8, in ILC 2005 Report (n 532) at pp 86-92.
90
related articles 13 – 15 DARS)561, since ‘those articles express principles of general
nature that appear to be applicable to the breach of an international obligation on the part
of any subject of international law ….’562
(a)
The capacity to bear international obligations: are international
organisations vested with objective legal personality?
A first problem arises in connection with the precondition for an IO’s capability of
bearing international obligations, its international legal personality.563 Article 8 DARIO
presupposes such international legal personality since the Draft Articles are only
applicable to IOs that meet the definition in art 2 DARIO demanding the organisations
‘own international legal personality.’564 However, it remains unclear whether such an IO
possesses international legal personality only in relation to its members and other
international subjects that have recognized the IO, ie, ‘subjective’ legal personality,565 or
whether the organisations international legal personality exists in an ‘objective’ sense to
the effect that non-recognizing third parties are obliged to accept this personality.566 This
question is obviously relevant in cases in which the IO asserts a right vis-à-vis a third
party that has not recognized the organisations legal personality. Yet, the problem also
plays a role in addressing the question to what extent IOs should be responsible for the
commission of international delicts. Non-recognizing third party victims might prefer to
claim remedies from member-state(s) involved in the harmful conduct instead of being
referred by such states to an IO that the victim has not recognized and that might be less
561
Cf ILC Commentary State Responsibility (n 156) at pp 123 et seq.
Comment 3 preceding art 8 DARS, in ILC 2005 Report (n 532) at pp 86-87.
563
M Hirsch (n 534) at p 10.
564
See above part IV.2.
565
The term ‘subjective’ will be used in the following exploration when referring to this proposed limited
personality which only exists between the IO and its members and other subjects of international law that
have recognized the organisation.
566
Cf E Klein (n 510) at p 287 para 104 (third parties that have not recognized the IO do not have to
accept being referred to the IO for redress); for the opposite view see: K Ginther (n 535) at pp1336, 1340;
see also M Hirsch (n 534) at p 10 presuming international legal personality for the purposes of his study
but stating in fn 50 that if an IO does not possess ‘international legal personality with respect to third
parties it will not incur responsibility toward such parties…’, see Hirsch ibid for further references.
562
91
capable of providing remedies than the organisation’s members.567 Must the victim
accept an objective international legal personality?568
The ILC so far has not devoted much attention to this question. Yet, it cites a
number of cases of the ICJ that can be interpreted in favour of an objective legal
personality.569 The clearest statement of the ICJ can be found in its Reparations for
injuries advisory opinion. The court reasoned that the UN was a subject of international
law with separate international legal personality that allowed it to bring claims in its own
name for damages suffered by its agent. Non-member states had to accept this objective
personality:
‘Accordingly the question is whether the Organization has capacity to bring a
claim against the defendant State to recover reparation in respect of that damage
or whether, on the contrary, the defendant State, not being a member, is justified
in raising the objection that the Organization lacks the capacity to bring an
international claim. On this point, the Court's opinion is that fifty States,
representing the vast majority of the members of the international community,
had the power, in conformity with international law, to bring into being an entity
possessing objective international personality, and not merely personality
recognized by them alone, together with capacity to bring international
claims.’570
Unfortunately, the ICJ refrained from further explaining the ‘conformity with
international law’ with respect to the vesting of the IO with ‘objective international
personality’. Rather, it appeared to have relied on a quantitative argument, in that it
referred to the ‘vast majority of the members of the international community’ that had
established an organization with ‘objective’ legal personality. It leaves open the question
on how to treat the numerous IOs that are not of a universal character. For instance, how
should one treat the rather small Multinational Force and Observers (MFO)?571 The
567
For example, due to a lack of adequate funding of the IO. An example could be when a state contracts a
PMC, or at least finances it, and the PMC then operates on behalf of the IO, eg guarding an ECOWAS
transport of foodstuff in a crisis region.
568
For the sake of clarity, it should be stressed that an objective international legal personality and the
affirmation of an internationally wrongful act of the IO would not automatically exclude the possibility of
holding member states responsible, eg in cases of joint liability of member state and IO. See below in this
section (a).
569
ILC 2003 Report (n 532) at pp 41-42, comments (7) – (9) on art 2 DARIO. The ILC, however, adds in
comment (9) that an organization ‘existing merely on the paper could not be considered as having an
“objective” legal personality under international law.’
570
ICJ Reparations for injuries (n 12) at p 185. [Emphasis added].
571
Cf M Hirsch (n 534) at pp 72-73. If, eg, a plane crashes on the territory of a non-recognizing state, can
this state claim damages from the state that supplied the plane and its crew to the MFO? Or can the
supplying state successfully refer the victim state to the MFO? More information on the MFO is available
at: http://www.mfo.org (visited: 18 August 2006).
92
quantitative argument of the ICJ does not provide much guidance and security. What
percentage of the ‘international community’ should be necessary to establish objective
international personality? A simple or an overwhelming majority of the community? Are
only states members of the community, or must one nowadays treat IOs as part of this
community and hence take them into account?
The referral by the ICJ to the ‘conformity with international law’ omits to take
into account established rules of international law, eg res inter alios acta572 and pacta
tertiis nec nocent nec prosunt,573 stating that agreements and acts between parties do not
bind third parties and do not impose obligations on them without their consent. Pursuant
to these rules, non-recognizing victims would not have to accept the international
personality of IOs, which would therefore be subjective as opposed to objective.574
A comparison with the principles governing the coming into existence of states
could be used to favour the ‘subjective’ view. Though the recognition of a new state is
merely declaratory, ie a state comes into existence upon fulfilling certain objective
criteria irrespective of the recognition by other states,575 a state is free not to recognize
the new state.576 It cannot be forced to recognize the new state as sovereign equal and
therefore, in relation to the non-recognizing state, the new entity is not a subject of
international law.577
Nevertheless, the objective view is preferable, ie, an IO should be regarded as
having objective international legal personality even against non-recognizing third
572
Cf G Ginther (n 535) who in his 1983 comments considered the principle of res inter alios acta
applicable and therefore required a constitutive act of recognition by the victim for the IO to incur
responsibility toward the third party. In his addendum 1991 Ginther observed that the view of ‘objective’
legal personality of IOs had gained ground ‘in the wake of the International Tin Agreement in 1985’;
upholding the principle of res inter alios acta. Cf also E Klein (n 510) at p 287, para 104, who treats the
UN pursuant to the advisory opinion of the ICJ in the Reparations for injuries case (n 12) as the only
exception to the rule that non-recognizing third-parties do not have to accept the IO but rather may claim
damages for delicts from any of the member states that are behind the IO. Cf also M Hirsch (n 534) at p
78.
573
This rule of customary international law is reflected in Articles 34, 45 of the VCLT 1969 (n 123) and
the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or
between International Organizations (1986) (following: VCLT 1986) 25 ILM 543.
574
As regards the term ‘subjective’ see above n 565. Bindschedler (n 539) at p 1299 also appears to favour
the ‘subjective’ view.
575
Cf Amerasinghe (n 543) at p 90.
576
See DJ Harris (n 156) at p 162 referring to the award of the German-Polish Mixed Arbitral Tribunal in
Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 AD at p 13.
577
For the opposing view see CF Amerasinghe, Principles (n 543) at p 90.
93
parties, provided that the IO is not merely established ‘on the paper’.578 First, the
comparison with the principles of (non-)recognition of new states is not very helpful. If a
state chooses not to recognize the new state it is indeed free to do so. Yet, the nonrecognition of the new state does not enable the non-recognizing state to claim against
other states ‘behind’ the new state. By contrast, if a state refuses to recognize an IO and
the IO is deemed to possess only subjective international legal personality,579 the nonrecognizing state would be free to direct its claims against the organisation’s member
states.580 Therefore, in contrast to the effect of the non-recognition of states, the nonrecognition of IOs would make it possible for the non-recognizing state to claim against
subjects of international law other than the non-recognized entity.
Second, the growing global prevalence of IOs is evidence that all states have
accepted IOs as actors on the international plane and, subject to the ‘principle of
speciality’,581 as being capable of possessing international legal personality.582 It
therefore appears to be more in line with reality to accept their objective legal
personality. The specific issues of distributing responsibility among IOs and members
(eg ‘piercing the veil’) should be addressed in the context of attribution of conduct and
interpretation of obligations.
Third, one could support this result by arguing that the principles of res inter
alios acta and pacta tertiis nec nocent nec prosunt do not apply to the internal rules of
the organisation, since the latter are lex specialis, at least with respect to the creation of
an IO with international legal personality.583
578
ILC 2003 Report (n 532).
As regards the term ‘subjective’ see above 565.
580
The reason for this is that the conduct in question then would have to be attributed to one or several of
the member states which staffed the IO and provided the funding for its operations.
581
ICJ Legality of the use by a state of nuclear weapons in armed conflict (n 22) at p 78, para 25.
582
To use the formulation in Sands and Klein (eds) Bowett’s law of international institutions (5ed), 2001,
at pp 470-473, cited after DJ Harris (n 156) at p 138: ‘... This evolution reflects changes in the
international society itself, which is increasingly open to the co-existence of various categories of subjects
of international law. …’
583
For instance, the IMF seems to support the lex specialis and law sui generis character of the rules of
organization, ia the constituent treaty from which often the legal personality and its scope can be deduced,
cf submissions of the IMF during the drafting process of the ILC, eg in Comments 2005 (n 532) at pp 3839, and in Comments IOs 2004 (n 532) at pp 12-13, and Comments 2005 (n 532) at pp 41-42; see also in
general comment (5) on Draft Article 8, in ILC 2005 Report (n 532) at pp 88-89 with further references.
The ‘particular type’ of constituent treaties was also acknowledged by the ICJ in its Legality of the use by
a state of nuclear weapons in armed conflict advisory opinion (n 22) para 19.
579
94
Finally, the acceptance of the concept of objective legal personality is in line
with the suggestions which have been made when the complexity of designing a
responsibility regime for IOs was introduced.584 An objective legal personality
emphasises the independence of IOs from their member states. It thereby helps to protect
the IOs’ decision-making autonomy because members, in general, do not have to be
afraid of being confronted with claims by non-recognizing third parties.585 If such claims
arise, members could rightly refer the claimants to the IO, based on its ‘objective’ legal
personality. This opportunity would be an incentive for members to refrain from unduly
influencing the decision-making process within the IO.586 In addition, the assumption of
an ‘objective’ international legal personality would promote clarity and security in the
relations between the actors on the international plane. Finally, it would not, per se,
mean that the non-recognizing victim is left without remedy for the incurred wrong in
the event that the IO fails to meet its obligation to provide redress for the incurred
wrong. The assumption of an ‘objective’ legal personality of the IO leaves open the
possibility that the examination of the conduct in question, on the one hand, and the
international obligation, on the other hand, points to the responsibility of one or more
members of the IO,587 be it, ia, separately, secondary, jointly and separately.588
In summary, IOs which are endowed by their members with an explicit or
implied international legal personality, possess an objective legal personality, ie they
possess international legal personality even toward other subjects of international law
that have not recognized them. The quantitative criteria that apparently played a role in
the reasoning of the ICJ in the Reparations for injuries advisory opinion589 is more
confusing than helpful. The number of states vesting the IO with international legal
personality therefore is irrelevant for determining the ‘objective’ quality of the legal
personality.590
584
See above part IV.2.
Similar idea expressed by M Hirsch (n 534), eg, at p 167.
586
M Hirsch (n 534), eg, at p 167.
587
For example, one might contemplate members’ obligations to duly exercise oversight over the
operations of the IO, or to provide adequate funding for the IO. Cf K Wellens (n 546) at pp 241-242.
588
For an overview over possible regimes for the distribution of responsibility see K Wellens (n 546) at pp
96 et seq. K Ginther (n 535) at p 1340. Schröder (n 156) at pp 551-552, paras 34, 36.
589
See above n 12.
590
CF Amerasinghe, Principles (n 543) at pp 85-91, at pp 90-91 coming to the same conclusion that
‘organizations will prima facie have objective personality irrespective of the actual universality of their
membership …. This means that (objective) personality does not depend on recognition but on a legal
585
95
(b)
Conduct ultra vires the competences of the international organisation
As indicated above, an IO violates its international obligation when the conduct that is
attributable to the organization does not conform to the obligations that are incumbent
upon the IO under international law.591 Article 8 DARIO clarifies two issues that appear
to be widely accepted, namely that such an obligation can derive from treaties,
customary international law and general principles of international law.592 Furthermore,
a ‘rule of the international organization’593 may also create an international obligation
the violation of which might give rise to the IO’s responsibility towards its member
states.594 There appears to be general consent that IOs may owe international obligations
to the international community as a whole,595 one or several States, whether members or
non-members, another international organization or other international organizations,
and any other subject of international law.596
A problem, however, arises due to the difference between states and IOs. States
continue to be the primary subjects of international law, vested with a ‘general
competence’ and unlimited capability to bear rights and duties. In contrast to this, IOs
are, in the words of the ICJ, ‘governed by the “principle of speciality” … invested by the
States which create them with powers, the limits of which are a function of the common
status flowing from the existence of certain facts associated with the creation of the organization which
implies a declaratory view of recognition, if it takes place at all, recognition not being necessary for the
existence of personality.’ At p 89 Amerasinghe contemplates hypothetical circumstances that could allow
for denying ‘objective’ legal personality, eg ‘fraud and the absence of legitimate proper purpose …’.
591
See Draft Articles 3, 8, ILC 2003 and 2004 Reports (n 532).
592
‘[R]egardless of its nature and origin’, see comment (2) in ILC 2005 Report (n 532), at p 87; M Hirsch
(n 534) at pp. 17-60.
593
As defined in Draft Articles 4(4) meaning “in particular: the constituent instruments; decisions,
resolutions and other acts taken by the organization in accordance with those instruments; and established
practice of the organization”, for details cf ILC 2004 Report (n 532) at pp 104 et seq.
594
See comment (4) – (7) in ILC 2005 Report (n 532), at pp 88 et seq; ILA Final Report (n 532) at p 28.
This appears obvious with respect to the constituent treaty that establishes the IO and vests it with powers.
However, certain internal decisions, etc might be regarded as purely internal. Therefore, the extent to
which rules of organization create international obligations and the rights flowing from violations of these
rules, are disputed. In addition to that, the lex specialis argument is sometimes forwarded to exclude the
rules of international organizations from being scrutinized in the realm of international responsibility, see
ILC 2005 Report, ibid, and ILA Final Report, ibid. see also submission of IMF in Comments 2005 (n
532) at pp 23, 38-39 accepting only the breach of jus cogens obligations as exception from the lex
specialis character.
595
Cf I Scobbie (n 535) at pp 956 et seq dealing in detail with erga omnes obligations of IOs.
596
Comment (3) on Draft Article 8 in ILC 2005 Report (n 532) at p 87; Amerasinghe, Principles (n 543) at
pp 240 et seq; M Hirsch (n 534) at pp. 17-60.
96
interests whose promotion those States entrust to them.’597 Thus, to borrow again words
from the ICJ:
‘Whereas a State possesses the totality of international rights and duties
recognised by international law, the rights and duties of an entity such as the
Organisation must depend upon its purposes and functions as specified or
implied in its constituent documents and developed in practice.’598
From this ‘principle of speciality’ it follows that ‘[t]he precise scope of those
rights and duties will vary according to what may reasonably be seen as necessary, in
view of the purposes and functions of the organisation in question, to enable the latter to
fulfil its task.’599
Against this background, the question arises how to treat cases in which the IO
denies a breach of an obligation and thereby its responsibility with the argument that the
organ or agent acted outside the scope of functions and purposes of the IO, ie ultra vires
the competence of the IO.600 This defence might be raised with regard either to the
creation of the obligation in question (eg the signing of a treaty creating obligations for
the IO that were outside the scope of the organizations purpose and functions) or with
respect to the act that allegedly violated an international obligation of the IO.601 Should
the IO be permitted to escape responsibility with this defence?
The topic of ultra vires acts of agents and organs is mostly dealt with in
connection with the assessment of whether a given conduct should be attributable to the
state or the IO, even if found to be ultra vires, ie even if an agent or organ exceeded its
597
Legality of the use by a states of nuclear weapons in armed conflict (n 22) at para 25.
Reparations for injuries advisory Opinion (n 12) at p 180. The principle of effet utile allows for a
teleological interpretations of the rules of organisation against the background that IOs are alive and
through the conduct of their organs constantly developing. The principle of effet utile permits to interpret
the rules of the organisation so as to give them maximum effect and thus to adapt them to changing
surroundings, see E Klein (n 510) at p 190, para 190; RL Bindschdler (n 539) at p 1294.
599
Sands and Klein (eds) (n 582) at pp 470-473.
600
For the sake of clarity. The question of ultra vires conduct classically relates to the conduct of an
organ/agent which exceeds the instructions or authorities of the person involved. The discussion here,
however, relates to the situation where organs or agents not only exceed their instructions and authorities
but where the conduct is also outside the functions and purposes of the organisation. A comparable
situation does not exist in the area of state responsibility, for states are not restricted by a ‘principle of
speciality’, ie their functions and purposes. Cf comment (1) on art 6 DARIO in ILC 2004 Report (n 532)
at p 116.
601
In connection with PMCs this might become relevant if IOs with no military purpose and functions
whatsoever, eg the WHO, contract PMCs and, even more so, when the PMC then actually engages in
combat operations.
598
97
authority or contravened instructions. Both art 7 DARS602 and art 6 DARIO603 attribute
ultra vires conduct to the state or IO, respectively, provided the organ or agent acted in
its ‘capacity’.604 However, art 6 DARIO does not explicitly address the situation in
which the conduct of an agent or organ not only exceeds the authority or contravenes
instructions of this agent or organ, but even overstepped the competence of the IO.
Neither existing case law of the ICJ nor publications of scholars provide clear guidance
on how to treat conduct ultra vires the competences of the IO.
In its Certain expenses case, the ICJ stated that IOs may be bound vis-à-vis third
parties by the ultra vires acts of its organs or agents if ‘the action is within the scope of
the functions of the Organization’. 605 This formulation indicates that the ICJ, too, seems
to acknowledge that conduct ultra vires ‘the scope of the functions’ of an IO might have
to be treated differently from ultra vires conduct which does not exceed the competence
of the organisation. However, this leaves open the issue of how to solve such cases of
conduct ultra vires the competence of the organization.
The ILC intends to apply 6 DARIO a fortiori to the attribution of conduct
exceeding ‘the competence of the organization’.606 The views among scholars vary
significantly. Pursuant to one view, IOs will be responsible for unlawful conduct
imputed to them, irrespective of whether ‘the acts were committed within their
competence or not.’607 An exception is proposed for cases in which the IOs’
602
‘The conduct of an organ of a State or a person or entity empowered to exercise elements of the
governmental authority shall be considered as 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.’
603
‘The conduct of an organ or an agent of an international organization shall be considered an act of that
organization under international law if the organ or agent acts in that capacity, even though the conduct
exceeds the authority of that organ or agent or contravenes instructions.’
604
As regards this element see: comment (4) on Draft Article 6 in ILC 2004 Report (n 532), at p 117.
605
ICJ Certain Expenses of the United Nations advisory opinion, ICJ Report 1962, 151. In this case, the
ICJ had to address the question whether expenses which resulted from UN peacekeeping operations were
‘expenses of the Organisation’ in the sense of art 17(2) of the UN charter, even if the peacekeeping
operations were established by the General Assembly and not by the Security Council which is primarily
responsible for such operations (art 23(1) UN Charter.). Ibid at p 168: ‘If it is agreed that the action … is
within the scope of the functions of the Organization but it is alleged that it has been initiated or carried
out in a manner not in conformity with the division of functions among the several organs which the
Charter prescribes, one moves to the internal plane, to the internal structure of the Organization … Both
national and international law contemplate cases in which the body corporate or politic may be bound, as
to third parties, by an ultra vires act of an agent.’ See also ICJ Difference relating to immunity case (n
544) at p 89, para 66.
606
Comment (1) on Draft Article 6 in ILC 2004 Report (n 532) at p 116.
607
M Hirsch (n 534) at pp 14-16.
98
incompetence was obvious and the victim therefore was able to prevent the harm.608 The
opposing view tends to accept situations ‘in which an organization may not be bound by
an ultra vires act of an agent vis-à-vis third parties, eg ‘where the act is also ultra vires
the organization’.609 Another view differentiates between conduct affecting members of
the IO, on the one hand, and third parties, on the other hand.610 Pursuant to this opinion,
third parties are to be protected and the IO therefore bound by the ultra vires conduct
that exceeds the competences of the IO. An exception is proposed only if the violation of
the internal rule was manifest for the third party and concerned a fundamental rule.611
For members, no viable solution is proposed but rather the imperfection of the
international legal order lamented.612
Comment on the treatment of conduct ultra vires the compentences of the IO
The suggested distinction between the treatment of non-member third parties and
members of the IO should be maintained. Non-members deserve a higher degree of
protection than members for they are not necessarily privy to the rules of the
organization from which the functions and powers are (expressly or impliedly) derived.
For non-members, the internal rules remain rules inter alios acta.613 Against the
background of the ongoing transfer by states to IOs of powers, leading to a growing
complexity of the internal rules of IOs, it seems unjust to burden non-members with a
duty to enquire into these rules. Vis-à-vis non-members, IOs should therefore be bound
by ultra vires conduct even if it exceeded the competences of the IO.
The proposed exception for manifest cases the resulting harm of which was
avoidable, should be restricted to contractual/treaty relationships between the IO and the
non-member. In such cases the non-member enters voluntarily into its relationship with
the IO. The non-member therefore can be expected to enquire into the functions and
608
M Hirsch (n 534) at pp 14-16.
CF Amerasinghe, Principles (n 543) at p 182, leaving open, however, the question on how to treat
conduct of organs (not agents) and conduct vis-à-vis members (not third parties).
610
Cf E Klein (n 510) at pp 325-326, paras 192-194.
611
Ibid at p 328, para 193 basing this argument on the rule reflected in art 46(2) VCLT 1986 (n 573).
612
E Klein (n 510) at p 326, para 326, citing the two contradictory proposals that are said to be forwarded.
One advocates a right of each state to assess the validity of the conduct in question if there is no authority
in place to do so. The other advocates the legal validity of all ultra vires acts and denies the right of selfassessment with the argument that otherwise each state would be free to escape its organizational duties
with the argument of ultra vires.
613
With the exception of the vesting of the IO by its members with ‘objective’ international legal
personality. See above part IV.4(a).
609
99
powers of the IO, to take account of manifest violations of internal rules and to
contemplate preventive actions to avoid harm, including the inclusion of provisions into
the agreement that would govern, ia, cases of ultra vires conduct.
Outside such contractual/treaty relationships it seems unjustified to shift the risk
of conduct exceeding the competence of the IO to the non-member. Hence, no
exceptions to the binding effect of the ultra vires conduct should be allowed.614 The IO
is in a better position to establish rules and procedures aiming at avoiding ultra vires
conduct.615 The denial of exceptions from such binding effect would be an incitement
for IOs to establish such measures.616 Imposing responsibility on the IO also strengthens
their independent position as subjects of international law. Moreover, IOs can easily
insure the risk of ultra vires conduct of their organs and agents, which is a crucial
difference between IO’s and third parties that would in many cases be left alone to bear
the loss if ultra vires conduct were not binding upon the IO:
With respect to the relationship between the IO and its members, priority should
be given to the internal rules of the IO. If they provide guidance for the treatment of
ultra vires conduct exceeding the competences of the IO, then the respective procedures
must be followed. However, if no such rules exist, preference should be given to the
binding effect of ultra vires acts of organs and agents, even in the event that an
authoritative regime exists that can determine – in the event of dispute – whether an act
exceeded the competences of the IO and what consequences such a finding entails. It
seems preferable to deny members a unilateral right to assess the conduct in question
and, if found to be ultra vires, to regard this conduct as null and void.617 Even if a
determining authoritative regime existed, the conduct should be treated as binding upon
the IO (valid but voidable) until it is found invalid by the authority.618 The reason for
this is that a member’s unilateral right to judge conduct of organs and agents of the IO
and to consider it as being ultra vires the competences of the IO would allow the
614
Similar, E Osieke ‘The legal validity of ultra vires decisions of international organizations’ (1983) 77
Am J Int’l L 239, 255.
615
Similar argumentation M Hirsch (n 534) at pp 94-95.
616
Ibid.
617
The treatment of ultra vires conduct as null and void is based on the traditional understanding
according to which the doctrine of ultra vires concerns the ‘legal validity of acts or the exercise of powers,
not their legality or illegality in terms of breached obligations and the duty to make reparations’. Cf CF
Amerasinghe, Principles (n 543) at p 167 and pp 169-179, dealing with the problem of (absence) of final
adjudication on the international plane; E Klein (n 510) at pp 325-326, paras 192-194.
618
Unless the rules of the IO provide otherwise, of course.
100
member to escape its organisational duties by simply alleging an ultra vires conduct.
This could have a destabilizing effect on the IO as a whole and it would undermine and
weaken the position of the IO as subject of international law. Moreover, it could further
have negative impacts on third parties.619
The only limiting criterion therefore should be whether the organ or agent acted
in its ‘capacity’, ie whether it ‘purportedly or apparently [carried] out [its] official
functions, and not the private actions or omissions of individuals who happen to be
organs or agents of the [IO].’620
(c)
International humanitarian law
For obvious reasons, IHL springs to mind in the context of the obligations which might
be breached by IOs in connection with the use of PMCs. 621 Therefore, a closer look at
the applicability of IHL to IOs is warranted.622 The examination of this applicability can
be divided into two components; applicability ratione personae and applicability ratione
materiae.623
(i)
The applicability ratione personae
The applicability of IHL to IOs ratione personae can be based on the above findings.
IOs have objective legal personality restricted only by the principle of speciality.624
Moreover, in light of art 8 DARIO, the source of an obligation is irrelevant when it
comes to assessing the responsibility of an IO for harmful conduct.625 Furthermore, it
has been posited that, in the context of IOs’ international responsibility, this principle of
619
For instance, if the member-state suspends its due contributions toward the IO based on the alleged
ultra vires conduct, thus leaving the IO without the necessary means to perform its obligations toward the
third party.
620
Comment (4) on art 6 DARIO, ILC 2004 Report (n 532), at p 117. The ILC would seem to favour this
result.
621
H-R Zhou ‘The enforcement of arrest warrants by international forces’ (2006) 4 J Int’l Crim Jus 202,
at pp 215-216. JP Bialke ‘United Nations peace operations: applicable norms and the application of the
law of armed conflict’ (2001) 50 Air Force Law Review 1, at pp 21-22 with respect to the inapplicability
of IHL to classical peacekeeping operations and at pp 24-25 regarding peace-enforcement operations, also
at p 34, 35 et seq on the applicability of IHL to UN forces. Porretto & Vité (n 221). On the applicability
of the Hague/Geneva Conventions on the UN missions, see Kalshoven/Zegveld (n 213) at pp 39,40, 194ss.
622
As regards the applicability of IHL in connection with PMCs, eg whether their employees are
combatants, see above part III.3(c)(i) and (d)(i).
623
Applicability ratione personae concerns the question, whether the IO is bound by the rules of IHL.
Applicability ratione materiase concerns the question whether the conduct of the IO lies within the scope
of the substantive rules of IHL. The approach of differentiating in this manner is also followed by Porretto
& Vité (n 221) at pp 17, 31.
624
See above part IV.4(a) and (b). Also Porretto & Vité (n 221) at pp 17-19.
625
See above at the beginning of part IV.4.
101
speciality loses much of its impact because the IO incurs responsibility even for conduct
of its organs and agents that exceeds the purposes and functions of the IO.626 Against
this background, IOs generally possess the subjective capacity to bear obligations under
IHL and might incur responsibility for breaching such obligations.627
This general finding, however, leaves open the determination of the sources of
IHL applicable to IOs, in particular, whether only rules of customary international law
apply or also rules derived from treaties.628 Due to developments in the recent past,
however, this question bears less importance today than it did in former times.629
First, the United Nations as the organisation primarily responsible for the
maintenance of international peace and security appears to have given up its initial
stance in which only ‘the principles and spirit’ of IHL were seen to apply to the conduct
of United Nations forces.630 A closer reading of the 1994 Convention on the Safety of
United Nations and Associated Personnel631 and the 1999 Secretary-General’s
Bulletin632 arguably confirms that the United Nations regards itself bound by IHL to a
626
See above part IV.4(b).
Similar Porretto & Vité (n 221) at pp 17-19, but without addressing conduct ultra vires the power and
functions of an IO.
628
The perceived problem is twofold: First, IOs are not parties to the treaties codifying IHL. The drafters
of the Hague and Geneva Conventions did not contemplate the possibility of IOs becoming party to the
treaties. Therefore, the majority view held that only customary international law could be applicable to
IOs, in particular the UN, cf Bialke (n 621) at pp 36-37 and Zhou (n 621) at p 215. Second, and this might
be the main reason for the UN’s reluctance of simply declaring unilaterally to be bound by all IHL
including the treaty law, various treaty rules cannot be simply transposed to IOs. Examples for such rules
include those presuming the existence of territory (eg art 49 of the Geneva Convention IV) or those
presuming an existing legislative and judicative regime (eg art 82 of the Geneva Convention III). Cf
Porretto & Vité (n 221) at pp 25-26.
629
For details on the following outline cf Porretto & Vité (n 221) at pp 21-27.
630
Porretto & Vité (n 221) at pp 21-23, arguing that the expression ‘principles and spirit’ was not intended
to limit the applicable IHL but rather served ‘as a reminder that treat[y]-based humanitarian law was
developed to apply to States and that … some rules are not adapted to the specific structure of [IOs].’ (p
22; footnote omitted) Cf also Bialke (n 621) at pp 36-40.
631
Adopted on 9 December 1994, AGNU Resolution 49/59, UNTS, vol 2051, p 363, available at
http://www.un.org/law/cod/safety.htm (visited: 13 August 2006). The resolution only applies to UN
peacekeeping personnel and not to enforcement actions under Chapter VII of the UN Charter ‘to which the
law of international armed conflict applies.’ This formulation in art 2(2) and a similar unrestricted
reference in art 20 are read as indication ‘that all the relevant rules of [IHL] should apply in full to both
UN authorized and UN commanded operations.’ Porretto & Vité (n 221) at p 23. For more details see
Tracy Fisher ‘At risk in no-man’s land: United State’s peacekeepers, prisoners of ‘war’ and the convention
on the safety of United Nations and associated personnel’ (2000) 85 Minn L Rev 663.
632
Secretary-General's Bulletin: Observance by United Nations Forces of International Humanitarian Law,
ST/SGB/1999/13 (1999), available at http://www.un.org/peace/st_sgb_1999_13.pdf (visited: 14 August
2006). Para 1.1 states that ‘[t]he fundamental principles and rules of international humanitarian law set out
in the present bulletin are applicable to United Nations forces when in situations of armed conflict they are
actively engaged therein as combatants, to the extent and for the duration of their engagement. They are
627
102
much wider extent than merely its ‘principles and spirit’, including even principles and
rules that have not, as yet, achieved the status of customary international law or are not
even enshrined in treaties.633
Second, by its Resolution 1327634 the UN Security Council extended the
Bulletin’s scope of applicability ratione personae, ‘specifying that they are binding not
only on UN personnel and field agencies, but also on the members of “regional and
subregional organizations and arrangements” participating in the operation.’635
Third, the Charter of the United Nations can be construed to oblige not only
United Nations’ forces to comply with IHL but also ‘regional organizations …. to the
extent that [they] participate in the global system for the maintenance of international
peace and security ….’636 It is argued that IHL is ‘a common measure’ between two
goals of the UN Charter, namely ‘[t]o maintain international peace and security’ on the
one hand, and to ‘promot[e] and encourag[e] respect for human rights and fundamental
freedoms for all’ on the other hand.637 It is further argued that the only way in which the
UN or other IOs may lawfully use military force, is by adhering to the ‘framework’ of
the UN Charter.638 Operations of regional IOs which relate to the maintenance of
international peace and security, must be ‘consistent with the Purposes and Principles of
accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is
permitted in self-defence.’
633
The Bulletin sets out rules and principles for UN forces, applicable irrespective of whether the
operation is a peacekeeping or an enforcement mission. These rules and principles are structured into five
categories: ‘Protection of the civilian population’, ‘Means and methods of combat’, Treatments of
civilians and persons hors de combat’, ‘Treatment of detained persons’, ‘Protection of the wounded, sick
and medical and relief personnel’, cf arts 5 – 9.The Bulletin is binding on all UN forces; cf Porretto & Vité
(n 221) at pp 23-25 noting, ia, the unrestricted reference in para 4 of the Bulletin to ‘international
humanitarian law’ and to the ‘particular general prohibition of incendiary weapons….’ Cf also
Kalshoven/Zegveld (n 213) at pp 194-195.
634
Security Council resolution no 1327 of 13 November 2000, S/Res/1327 (2000), available at
www.globalpolicy.org/security/ peacekpg/reform/2000/res1327.pdf (visited: 14 August 2006).
635
Porretto & Vité (n 221) at p 25. Security Council resolution no 1325 on Women, Peace and Security
seems to go into the same direction in that it recognizes ‘the need to implement fully international
humanitarian and human rights law that protects the rights of women and girls during and after conflicts’.
UN SCOR, 55th Sess., 4213th mtg., U.N. Doc. S/RES/1325 (2000); cited after J Murray ‘Who will police
the peace-builders? The failure to establish accountability for the participation of United Nations civilian
police in the trafficking of woman in post-conflict Bosnia and Herzegovina’ (2003) 34 Colum Hum Rts L
Rev 475, at pp 520-521 and fn 253.
636
Cf Porretto & Vité (n 221) at p 20.
637
Cf Porretto & Vité (n 221) at p 20 citing arts 1(1) UN Charter and 1(3) UN Charter.
638
Cf Porretto & Vité (n 221) at p 20. Cf also BD Tittemore ‘Belligerents in blue helmets: applying
international humanitarian law to United Nations peace operations’ (1997) 33 Stan J Int’l L 61, at pp 100108 who, after a detailed analysis of the purposes and functions of the UN suggests that UN forces are
generally bound by customary international law if they engage in hostilities.
103
the United Nations.’639 Moreover, it remains the prerogative of the Security Council to
authorize enforcement actions by regional and, a fortiori,640 by non-regional IOs.641 The
argument is made that IOs which undertake to play a role in the UN system of
maintaining international peace and security, ‘also agree to respect all the rules,
including those relating to jus in bello.’642
Fourth, the ‘merging of customary and conventional law in this sphere’643 further
decreased the relevance of the question whether conventional IHL is applicable to IOs,
and prompted the following conclusion: ‘[T]he old idea according to which the United
Nations is only bound by customary rules has gradually become obsolete since it has
become clear that treaty based humanitarian law (especially the 1949 Geneva
Conventions) and customary law are almost exactly the same.’644 In summary, it is
submitted that ‘the current discourse no longer concerns the applicability of international
humanitarian law as such, but the adaptation of particular norms to the specific structure
of international organisations.’645
The aforementioned arguments notwithstanding, the distinction between
conventional and customary IHL should be upheld when it comes to assessing whether
rules of IHL are applicable to IOs. The applicability of customary IHL to IOs seems
largely undisputed and makes sense.646 If IOs engage in armed conflicts they must not
stand above the law which is widely accepted for armed conflicts.647 On the other hand,
it can hardly be negated that IOs are not party to the treaties which establish rules of
639
Article 52(1) of the UN Charter. The norm refers to ‘regional arrangements or agencies’, a rather broad
wording which also encompasses IOs. Cf Bothe (n 172) at pp 623-624, para 51 citing, ia, the example of
the Organization of American States (OAS) or the African Union (AU).
640
A fortiori, since non-regional IOs do not enjoy the privileges of regional IOs as stipulated in chapter
VIII of the UN Charter. Therefore, the only way they may lawfully resort to the use of force is by Security
Council authorization (arts 39, 43 UN Charter).
641
Article 53(1) sentence 2 of the UN Charter. Cf Bothe (n 172), ibid, citing, ia, the example of the NATO
and the Western European Union (WEU) both of which had been mandated by the Security Council with
different operations in the former Yugoslavia.
642
Cf Porretto & Vité (n 221) at p 20.
643
Porretto & Vité (n 221) at p 26.
644
Luigi Condorelli Les progrès du droit international humanitaire et la circulaire du Secrétaire général
des Nations Unies du 6 August 1999’, at p 502, translated by and cited after Porretto & Vité (n 221) at p
26 with further reference supporting this conclusion in fn 87. Bothe (n 172) at pp 632-633, para 62 who
maintains that only IHL derived from customary international law is applicable.
645
Porretto & Vité (n 221) at p 25. Bothe (n 172) at pp 632-633, para 62. Bialke (n 621) at pp 36-37.
646
However, it might be necessary to take account of the particularities of IOs such the absence of control
over territory in the normal case. This might call for slight modifications of the rules of customary IHL on
a case by case basis, cf Tittemore (n 638) at pp 113-114.
647
Bothe (n 172) at p 633, para 62.
104
IHL.648 This may become crucial, since there remain rules which have not, as yet,
attained the status of customary IHL, despite the recent approximation of treaty and
customary IHL.649 Furthermore, new treaties may come into effect establishing new
rules of IHL or even contradicting existing ones.650 To assume that IOs would be bound
by these rules even without being party to the treaty would run counter to the general
principle that treaties create rights and obligations only inter partes, ie, between the
parties to the agreement.651
To sum up, IHL is generally applicable ratione personae to IOs. Nevertheless, it
still is necessary to distinguish between the different sources of IHL and to examine
whether the rule in question is applicable to the specific IO. There seems to be no easy
solution. Rather, one will have to determine by a case to case examination which rules of
customary international law can be applied to the IO in question and which treaty rules
might be applicable in addition to that due to, eg, unilateral and binding declarations of
the organisation.652
(ii)
Applicability ratione materiae in situations of armed conflict
Generally speaking, IHL is applicable ratione materiae in a factual situation which
meets the threshold of ‘armed conflict’.653 Two questions are particularly interesting in
this context. First, does an armed conflict exist when IOs such as the United Nations
conduct mere peacekeeping operations, ie, operations in which the mandate of the force
does not permit the use of force, except in situations of self-defence?654 A related
question would be whether the United Nations enjoy a special status in the sense that the
threshold for the existence of an armed conflict should be higher compared to normal
648
Cf Bothe (n 172) at p 633, para 62 in the context of the UN.
For instance, the rules of Protocol I (n 216) relating to struggles of national liberation movements and
to non-state actors such as guerrillas arguably have not attained the status of customary international law;
cf Tittemore (n 638) at pp 99-100.
650
For an overview over past and recent treaties see the comprehensive list of the ICRC, available at:
http://www.icrc.org/ihl.nsf/INTRO?OpenView (28 August 2006).
651
Cf arts 26 and 34 of the VCLT1986 (n 573). Furthermore, it might be astonishing to deem an IO bound
by a treaty even if the majority of its member states is not party to the treaty.
652
For instance, as shown above, the UN has recently adopted conventions which allow to draw the
conclusion that the organisation considers itself bound also by certain conventional IHL.
653
Some provisions of IHL are applicable in peacetime and one body of IHL is triggered by the actual
occupation of foreign territory, even if the latter does not meet armed resistance. See above part III.3(c)(i).
These situations will not be dealt with in this paper.
654
This includes missions in which the forces of the IO are tasked with policing operations, eg when the
IO administers territories, eg the administration by the UN of the Kosovo (UNMIK) or East Timor
(UNTAET), cf Porretto & Vité (n 221) at p 25 at pp 38-40 and pp 12-16.
649
105
cases where states or IOs lack the purported moral authority of the United Nations.655
Second, if a conflict involving an IO meets the benchmark of armed conflict, is it to be
regarded as an international or merely a non-international conflict?656 The answer to this
question determines which set of rules of IHL is applicable.657
Regarding the first question, no treaty definition exists as to what constitutes an
armed conflict. One definition, offered by the ICTY, seems to reflect state practise.
Under this definition, there is an armed conflict when ‘there is resort to armed force
between states or protracted armed violence between government authorities and
organized armed groups or between such groups within a State.’658 In connection with
hostilities between states, ‘the existence of an armed conflict is freely admitted, the
threshold level of combat being very low.’659 As regards internal hostilities, the wording
of art 1 of the Additional Protocol II and state practice suggest a higher threshold
involving ‘two interrelated criteria: the intensity of the confrontation and the level of
organization of the opposing parties.’660
The rules of IHL will apply to forces of IOs once they ‘come into conflict with a
State, or a sufficiently organized armed group, and the conflict crosses the required
threshold of intensity.’661 This holds true irrespective of the categorisation of such force
such as ‘peacekeeping mission’ or ‘policing mission’. Suggestions to the contrary fail to
take into account that any attempt of exempting such missions a priori from the realm of
IHL662 runs counter to idea that IHL applies irrespective of the legitimacy of or any
elevated motives for the recourse to force.663 Therefore, IHL remains applicable even to
peacekeeping or policing missions manned or authorized by the United Nations.
Members of such missions enjoy special protection and can be regarded as non-
655
As suggested, eg, by Bialke (n 621) at pp 56-57.
See Porretto & Vité (n 221) at pp 35-38.
657
See above part III.3(c)(i).
658
Prosecutor vs Tadic, (n 343), cited after Bialke (n 621), fn 240 with further suggested definitions at p
52 and in fn 240.
659
Porretto & Vité (n 221) at p 32.
660
Porretto & Vité (n 221) at p 33. Article 1 of the Protocol II (n 216) explicitly distinguishes armed
conflicts from ‘internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and
other acts of a similar nature, as not being armed conflicts.’
661
Porretto & Vité (n 221) at p 32.
662
For references cf Porretto & Vité (n 221) at p 33 in fn 125 and 126.
663
Cf Protocol I, Preamble, para 5; Porretto & Vité (n 221) at pp 33-34 and pp 38-40. Bothe (n 172) at pp
632-633, para 62.
656
106
combatants as long as they use force only within the ream of self-defence.664 If they,
however, engage in operations which cross the threshold of violence that constitutes
armed force, even if forced to do so, then they will lose the aforementioned special
protection and become combatants or belligerents, depending on the classification of the
conflict as international or non-international.665 This finding holds true also for
situations in which the military contingent of the IO is formed by PMCs and their
personnel. In summary, it is the nature of the activity of the force that determines their
status under IHL, not the a priori classification by the IO.666
With respect to the second question, the nature of an armed conflict in which an
IO gets involved, there seems to be agreement that the rules pertaining to international
armed conflicts apply if the forces oppose those of states.667 It is less clear, however,
whether rules of international or non-international armed conflict apply to hostilities
between IO and nongovernmental forces. Legal scholars seem to favour a view that
‘posits the existence of a sui generis international armed conflict, arising out of the
specific status of the organization involved.’668 This view would also apply the rules of
international armed conflicts when nongovernmental forces are engaged by the IO’s
forces. Both the 1999 Bulletin and the 1994 Convention on the Safety of United Nations
and Associated Personnel can be construed to support this view.669 On the other hand, an
argument based on an analogous application of the ICJ’s ‘fractioning’ of the conflict in
the Nicaragua case670 and the practice of the United Nations and the United States in
connection with the intervention in Somalia671 could be made in favour of the
applicability of the rules of non-international armed conflict.
664
This protection is based on various grounds: for instance, they are regarded to be ‘Persons taking no
active part in the hostilities’ in the sense of common art 3 of the Geneva Conventions (n 215), see Bialke
(n 621) at p 55. They are also protected by the ‘law relating to the privileges and immunities granted to the
agents of [IOs] … as outlined in Article 105 of the UN Charter and specified by customary and
conventional rules … [such as] Article 7 of the 1994 Convention on the Safety of United Nations and
Associated Personnel ….’ Porretto & Vité (n 221) at p 34.
665
Porretto & Vité (n 221) at p 33. Bulletin (n 632), Section 1.
666
Bialke (n 621) at p 54. Porretto & Vité (n 221) at p 39.
667
Porretto & Vité (n 221) at p 35-36. Tittemore (n 638) at p 110.
668
Porretto & Vité (n 221) at p 35 (footnote omitted) with further references in fn 133 and 134. More
carefully, Tittemore (n 638) at p 110.
669
Porretto & Vité (n 221) at p 36. See above nn 631, 632 regarding the Bulletin and the Convention.
670
Nicaragua case (n 171) at p 114, para 219. The Court applied the rules for a non-international conflicts
to the relationship between the Contras and the Nicaraguan Government, and rules for an international
conflict to the activities ‘of the United States in and against Nicaragua’.
671
The UN and the US were of the opinion that rules of non-international armed conflicts should apply.
This was partly due to the unorganised state of the forces opposing the intervening forces which resembled
107
The answer to the question is crucial for those involved in the conflict, in
particular because the rules for international armed conflicts are much more
sophisticated and provide better protection than the rules for internal conflicts.672
However, the answer is neither palpable nor does the scope of this paper allow for a
comprehensive one. Suffice it therefore to highlight some points that might guide the
development of a satisfactory answer. The idea of a sui generis internationalisation of a
conflict between the IO and nongovernmental forces because of the involvement of a
military contingent of the IO has its charm.673 Indeed, the fact that the organisation,
though possessing an abstract legal personality, is formed by its member states, lends
weight to the idea of the conflict being internationalised. Moreover, such
internationalisation would trigger the more protective set of rules, the more sophisticated
one, at least from a humanitarian and human rights standpoint. The drawback of this
approach is that the sui generis internationalisation, being a catch-all solution, lacks any
flexibility which might be necessary to react to the specific situation of the conflict or
the belligerent parties. For instance, the ‘armed groups’ opposing the international force
might be incapable, as distinguished from being merely unwilling, of meeting some of
the obligations stipulated in the Geneva Conventions or the Protocol I, eg meeting the
precise requirements for an POW camp.674 Furthermore, political and military
arguments, as opposed to considerations of humanitarian or human rights, might argue
for the applicability of the less restrictive and protective rules for non-international
armed conflicts.675 However, IOs can intervene legally in the internal conflicts of a
sovereign state only in limited cases, namely with authorization of the United Nations in
conformity with and for the purposes of its Charter.676 The Charter subscribes to
elevated purposes, in particular the promotion of human rights.677 This argues for
attempting to achieve the highest standard of protection for all parties involved.
rather the situation of internal conflicts than international ones. On part of the US, political deliberations
were, at least partly, responsible for its view. Cf Porretto & Vité (n 221) at p 37.
672
Details in Bothe (n 172) at pp 662-666, paras 120-125.
673
This view seems to be widely supported, cf Bothe (n 172) at p 666-667, para 126, but also stating that a
complete internationalisation of the conflict, including the relationship between ‘armed groups’ and the
Government of the state, is not as yet accepted as law. Cf also Tittemore (n 638) at p 113.
674
For instance, Geneva Convention III (n 215), section II Internment of POW.
675
The argument which is sometimes forwarded is that too many restrictions prevent a successful conduct
of operations against groups fighting a guerrilla style of war (asymmetrical warfare).
676
See above part IV.4(c)(i).
677
Articles 1(3), 55 of the UN Charter (n 169).
108
In summary, two main arguments support the view that the involvement of
military forces in a Host State’s internal conflict causes the internationalisation of this
conflict.678 One argument follows from the result of the above legal discussion. It was
found that military operations of the UN and other IOs are only lawful if they adhere to
the elevated purposes and functions of the UN Charter calling for the highest standard of
protection for the persons involved in armed conflicts. Since the rules for international
armed conflict are more protective than those for internal armed conflicts, the former
should be applied.679 In addition to that, from a logical standpoint, it seems artificial to
advocate an non-international armed conflict despite the factual externalisation of the
conflict due to a situation in which subjects of international law other than the Host State
confront the nongovernmental forces.680
5.
Where the PMC conduct is attributable to the international organisation
As stated above, for international responsibility to arise, the general rule requires the
specific conduct to be attributable to the IO. As in the area of state responsibility,681
attribution concerns the question whether a sufficient link exists between a specific
conduct of an individual person and an abstract entity for the conduct to be considered
one of the entity.682 Such a link is usually based on a control link, an institutional link
and/or a territorial link.683
Some general rules for the attribution of conduct to IOs can be discerned or are
currently being discussed in the drafting process of the ILC. Similar to the area of state
responsibility, conduct of an IO’s organs is attributable to the organsation.684 There
678
With respect to the relationship between the IO and the nongovernmental forces. Cf Bothe (n 172) at p
666-667, para 126, stating that a complete internationalisation of the conflict, including the relationship
between ‘armed groups’ and the Government of the state, is not as yet accepted as law.
679
See also above part IV.4(c)(i).
680
In this context, it does not matter if one places the emphasis on the IO itself or on its member states
acting through the IO.
681
Cf arts 4 – 11 DARS (n 156). There appears to be general consent that the principles of attribution as
reflected in the State Draft Articles may be transferred to the area of international responsibility of IOs,
bearing in mind that the particularities of IOs may warrant modifications; M Hirsch (n 534) at p 62;
comments (3), (5), (6) preceding Draft Articles 4 – 7 in ILC 2004 Report (n 532), at pp 101-3.
682
Cf M Hirsch (n 534) at p 62.
683
This classification is suggested by M Hirsch (n 534) at p 62.
684
M Hirsch (n 534) at p 62 with further reference in fn 6.
Draft Article 4 – General rule on attribution of conduct to an international organization – reads:
‘1. The conduct of an organ or agent of an international organization in the performance of functions of
that organ or agent shall be considered as an act of that organization under international law whatever
position the organ or agent holds in respect of the organization. 2. For the purpose of paragraph 1, the term
109
appears to be agreement, too, that the conduct of its agents should also be attributed to
the organisation.685 Hence, the distinction between organ and agent in the context of
attribution of conduct loses its importance.686 Moreover, the ILC, in its current drafting
process suggests a rather broad definition of an agent,687 and bases this, ia, on
jurisprudence of the ICJ.688 As in the field of state responsibility, conduct of private
persons can, in certain cases, be attributable to the IO if the private person acts ‘under
the instructions, or the direction or control, of an organizations’, or if the IO
‘acknowledges and adopts the conduct in question as its own’.689 It seems also clear that
ultra vires conduct of the IO’s organs and agents acting in that capacity is attributable to
the IO.690
The situation of IOs utilizing PMCs for the provision of military services
arguably poses fewer problems in connection with the attribution of conduct than the
traditional scenario in which IOs, in particular the United Nations and the NATO, use
troop contingencies of its member states for the discharge of their functions.691 In the
case of harmful conduct in the traditional context, the difficulty lies in determining to
whom the conduct in question is attributable. This conduct will, necessarily, be
committed by a member of a state’s army. However, this member was operating under
the auspices of the IO. The practice in connection with United Nations operations692 has
“agent” includes officials and other persons or entities through whom the organization acts. ….’ Draft
Article 4, in ILC 2004 Report (n 532) at p 103.
685
Cf comments (2)-(7) on Draft Article 4, in ILC 2004 Report (n 532) at pp 104-7. A notable exception is
the submission of the IMF maintaining that only conduct of organs, not agents, should be attributed to the
IO, see Comments 2005 (n 532) at p 22 et seq. However, the IMF does not suggest any viable alternative.
It’s position appears not to be reflecting the reality of IOs’ widespread use of agents in the discharge of
their functions.
686
Comment (5) on Draft Article 4, in ILC 2004 Report (n 532) at pp 106.
687
Being any ‘person through whom [the organization] acts’, see Draft Article 4(2), ILC 2003 Report (n
532).
688
See in comments (2) – (5) on Draft Article 4, in ILC 2004 Report (n 532) at pp 104-106; with
references to and quotations from Reparation for injuries case (n 12) at p 177; Applicability of article VI,
section 22, of the Convention on the privileges and immunity of the United Nations advisory opinion, ICJ
Report 1989, 177, at p 194, paras 47, 48; Difference relating to immunity case (n 544) at pp 88-89, para
66.
689
M Hirsch (n 534) at p 63 with references in n 7; the ILC sees these cases covered by the wide definition
of ‘agent’ in Draft Article 4(2), see comment (13) on Draft Article 4, ILC 2004 Report (n 532) at p 109.
690
At the minimum the ultra vires conduct that does not exceed the powers of the IO, preferably – as
advocated above – also such exceeding conduct. See Draft Article 6, ILC 2004 Report (n 532) at p 115.
691
Cf description of such operations in Porretto & Vité (n 221) at pp 9-11 (UN), and pp 29-31 (NATO’s
‘Operation Allied Force’).
692
K Ginther (n 535) at p 1336; M Hirsch (n 534) with a detailed description at pp 66-71 (regarding
practice) and pp 73-76 (regarding judicial decisions); comment (5) – (6) on Draft Article 5 (n 532) at p
110
is reflected by practice outside such operations,693 and appears to have evolved into a
general rule of ‘effective control’. Pursuant to this, the conduct in question is attributable
to the entity (IO or state) that exercised effective control over the conduct. 694
Compared to this traditional setting, the attribution of conduct of PMC
employees to the IO poses fewer problems. In the normal case, the IO will have a
contractual relationship with the PMC in which the PMC undertakes to perform certain
tasks on behalf of the IO. This might lead to the PMC becoming an organ of the IO.695
But even if this is not the case, the suggested broad definition of an agent should suffice
to establish the necessary institutional link between the organisation and the PMC
‘through whom [the IO] acts.’696 The effective control test developed for the above
mentioned traditional composition of peace operations would then only remain relevant
in the event that a state contracts the PMC and places it at the disposal of the
organisation.697
6.
Where the PMC conduct is not attributable to the international organisation
Attributing responsibility based on a failure to exercise due diligence is less important in
connection with IOs than in the area of state responsibility because of the findings in the
foregoing section. Suffice it therefore to remark that the concept of due diligence is even
less developed in the field of responsibilities of IOs.698 However, there is some authority
111-3 (regarding UN practice in peacekeeping operations) and comment (8) thereto (n 4) at p 114
(regarding degree of control in joint operations).
693
For example: contributions to NATO, disaster relief units, the placement of the organ of one IO at the
disposal of another (eg agreement between WHO and Pan American Health Organisation, PAHO); cf M
Hirsch (n 534) at pp 71-73 regarding NATO and Warsaw Pact, and comments (9)-(10) on Draft Article 5
(n …) at p 115.
694
M Hirsch (n 534) at pp 64-65; comment (7) on Draft Article 5 (n 4) at pp 113-114 with further
substantive references in fn 297. Porretto & Vité (n 221) at pp 27-31 with a case study of NATO’s
‘Operation Allied Force’ bombing campaign against former Yugoslavia. Article 4 DARIO suggests the
rule as follows: ‘The conduct of an organ of a State or an organ or agent of an international organization
that is placed at the disposal of another international organization shall be considered under international
law an act of the latter organization if the organization exercises effective control over that conduct.’ See
ILC 2004 Report (n 532) at p 109.
695
For instance if a UN Chapter VII enforcement mission is completely staffed by the PMC one could
argue that the PMC constitutes the armed forces of the UN, thereby becoming an organ of the UN.
696
See above in n 687.
697
Cf above III.4(d) for borrowed organs in the realm of state responsibility.
698
J Murray (n 635) touches the issue within her assessment of responsibilities of states and the UN under
HRL for the trafficking of woman in Bosnia and Herzegovina. She affirms the due diligence obligation of
state’s citing the Velázquez-Rodríguez judgment (n 441) at pp 514-517 and appears at p 518 to affirm a
similar obligation of the UN. However, Murray the turns at pp 518-519 to the immunities of UN personnel
and addresses the problem of accountability at pp 519-520 under moral obligations of the UN; Scobbie (n
111
for the suggestion that IOs may incur responsibility even if the harmful conduct is not
attributable to them.699 This makes sense if one follows the proposition that the growing
number and impact of IOs justifies an alignment of IOs and states in the area of
international responsibilities.700 However, IOs differ from states in some substantial
points, the two most obvious being that they depend on their members in important areas
such as funding, and that they, in principal, do not exercise authority over territories.701
These differences should be taken into account in the determination of the exact content
of the due diligence obligation. The normative requirements of reasonableness and
seriousness as developed in the area of state responsibility with respect to the steps to be
taken by a state to meet its due diligence obligations, leave room for adjusting the
content of due diligence obligations to the particularities of IOs.702
7.
Preliminary summary
IOs may incur international responsibility for the conduct of PMCs whose services they
use. Attributing PMC conduct to the IO seems to be less problematic than in the area of
state responsibility. For this reason, it seems less necessary in the realm of IOs to apply
and further develop the doctrine of due diligence in order to fill legal gaps. .
Uncertainties and challenges arise primarily because the rules governing the
responsibility of IOs in general are much less developed compared to those of state
responsibility.
V.
CONCLUSION
1.
Responsibility of states
The findings in part III have affirmed the proposition that PMCs do not operate in a
legal vacuum.703 States may incur responsibility in connection with PMC conduct
pursuant to the general rules of public international law. This is the case, when the
535) at pp 956, and pp 959-961 rises the question of due diligence obligations of IOs in the context of
erga omnes obligations and seems to favour the applicability of the doctine of due diligence to IOs.
699
See Scobbie (n 535) at p 956 with further refernces, ia, to Professor Gaja (n 156) in fn 77. See also
Comment (1) on art 3 DARIO in ILC 2003 Report (n 532) at p 74.
700
See above IV.4(a) and (b).
701
An exception would be the International Transitional Civil Administrations established by the UN in
the Kosovo and in East Timor, see above part IV.2 and in n 655.
702
See above part III.5.
703
Presentation of E Gillard in ICRC 2005 Report (n 256) at p 71. Cf also CUDH Report (n 125) at p 64
with a concluding remark that ‘while there may be certain gaps, there is no major vacuum in the
international law applicable to PMCs.’
112
conduct can be attributed to the state according to the rules reflected in the ILC Draft
Articles.704 In other cases, the doctrine of due diligence may allow the attribution of
responsibility to a state.705 Under certain circumstances, the violation of lex specialis
rules such as art 91 of the Protocol I will give rise to a state’s responsibility.706
One should be careful, though, not to oversimplify the matter by merely stating
that states cannot escape their international responsibilities by contracting private
corporations to perform certain tasks. Rather, each individual case calls for a careful
assessment of its specific circumstances. In particular, it is not only the Contracting State
which might incur responsibility. Rather, one must distinguish the different categories of
states. Is it the Contracting State, the Host State, the Home State, or yet another state
whose responsibility is at stake? Another issue is whether there is an international
obligation in the first place which could be regarded as circumvented by the Contracting
State.707
Some points are particularly problematic and, therefore, merit closer attention.708
To begin with, the general uncertainty under IHL as to when a civilian can be deemed to
participate directly in hostilities, is particularly troubling in connection with PMCs and
their employees.709 The reason for this is the mushrooming presence of PMCs in recent
conflicts where their services have been used by some of the major states.710 To
substitute a state’s armed forces for, or to complement them with PMCs, even in the
immediate combat zone, is, at best, irresponsible of the state. PMC employees frequently
act as if they were combatants, yet, if they participate directly in hostilities they do not
704
See above part III.4.
See above part III.5.
706
See above part III.4(b) and (e).
707
For instance, a state will breach its obligation of result if it commissions a PMC which fails to deliver
the result. However, how to judge the case in which this PMC delivers the result discharging the
obligation for the state but in the process of delivering the result kills people or damages property of the
Host State’s population. Arguably, the Contracting State is not responsible for the harm caused en passent
by the PMC. Cf CUDH Report (n 125) at p 46 with the example of a state contracting a PMC for delivery
of food to the population of an occupied territory, art 55 of the Geneva Convention IV (n 215).
708
Other issues which will not be mentioned in the following part, are raised in CUDH Report (n 125) at
pp 58-64 addressing ‘unclear areas in the law and suggestions as to how PMCs could be better regulated’.
709
See above part III.3(c)(i).
710
In particular during the Iraq conflict, see above part II.3.
705
113
enjoy the same privileges as combatants.711 In this connection it is highly questionable if
IHL has kept abreast with the developments in warfare during the past two decades.712
Another source of uncertainty exists with respect the attribution of private
conduct to the state under art 8 DARS. What is problematic is not so much the silence of
the Draft Articles as to what degree of ‘control’ is necessary.713 Rather, it is the
existence of two major authorities for the interpretation of ‘control’ which causes
insecurity.714 Unfortunately, the ICJ in the Case concerning armed activities in the
Congo missed a great occasion to respond to the ICTY’s criticism of its effective control
test and to adapt this test to a world that has changed considerably since the introduction
of the effective control test in the Nicaragua case.715
Finally, it seems to be problematic to hold the Home State responsible in cases in
which ‘its’ PMC operates abroad and the Home State is neither a party to the conflict
nor has a contractual relationship with the PMC.716 This is particularly disturbing against
the background that the majority of PMCs are said to be concentrated in a limited
number of mostly western states.717 These rather rich Home States would be in a better
position to effectively regulate and control the industry as well as to meet claims than
the frequently very poor and weak Host States.718
How should the above three issues be addressed in order to avoid states from
escaping international responsibility? The uncertainties in connection with the definition
711
Guillory (n 174) at p 132. Vernon (n 6) at pp 417-418 stressing that employees could even be
prosecuted as war criminals.
712
Guillory (n 174) at p 120. As discussed above at n 256, the ICRC is currently co-hosting a series of
expert meetings on the issue of DPH. The outcome is expected to be published by the end of the year
2006.
713
It is in the nature of codified norms that they are abstract and must be construed in order to ‘fit’ to
concrete cases.
714
Part III.4(e) above introduced the benchmarks of effective control (ICJ) and overall control (ICTY) and
suggested following the latter one.
715
Case concerning armed activities in the Congo (n 178). Apparently, as evidenced by pp 55-56, para
160, the question of control over paramilitaries was raised before the Court, yet the ICJ avoided giving an
obiter dictum.
716
It has been posited above in part III.5(b) that HRL is (still) governed by ‘the principle of territoriality’
to the effect that a responsibility of the Home State for interferences of ‘their’ PMCs with human rights in
Host States cannot be based on the concept of due diligence. Neither does this concept of due diligence
allow for holding states responsible that are not party to the conflict. Finally, if the Home State has no
contractual relationship with the PMC, it unlikely that the PMC can be regarded as exercising
governmental authority on behalf of the Home State, cf above part III.4(c)).
717
See above part II.3.
718
Stinnett (n 29) at pp 221-223 advocates a ‘coordinated domestic regulation’ of PMCs in their Home
State.
114
of DPH719 could be solved if states refrained from using PMCs until a viable solution for
defining DPH is found. Given the ‘glacial pace’ of such an undertaking and the ongoing
trend of contracting PMCs, this option remains theoretical with no chance of
realisation.720 A more realistic proposal advocates turning PMC employees into
combatants.721 In this context, the British Sponsored Reserve Act could be an example
for future regulations.722 This legislation requires that a specified percentage of PMC
employees be part of the military reserve before the PMC may provide certain
services.723 ‘In an operational setting, these employees would then be activated as
servicemen.’724 Another option could be the setting up ‘special reserve force[s]’,725 ie,
specialized units within the state’s armed forces with a ‘relax[ed] military regimentation’
which compete on the open market for ‘the engineers and technicians needed for modern
warfare.’726 Both methods of transforming civilians into combatants would clarify the
status of PMC employees under IHL thus avoiding the ambiguities which plague the
definition of DPH.
The uncertainty caused by the diverging authorities for the determination of
‘control’ in the sense of art 8 DARS is likely to last until a general state practice can be
discerned.727 It is argued that recent state practice already tends to support the less strict
approach of the ICTY, a development which seems appropriate against the background
of an increasing power of non-state actors.728 In other words, non-state actors including
PMCs wield much more power today than they did two decades ago.729 To
719
Direct participation in hostilities, see above III.3(c)(i).
Guillory (n 174) at pp 137, 142.
721
Guillory (n 174) at pp 138-142. Vernon (n 6) at p 421.
722
The UK Sponsored Reserve Act was enacted 1997 and included in the UK Reserve Forces Act. Cited
after Guillory (n 174) at p 141.
723
Vernon (n 6) at p 421. Guillory (n 174) at p 141. Reportedly, other countries are inclined to follow this
concept. Ibid at p 142 with reference to Australia and Canada and also to a test program of the US Air
Force. The aim of hiring people with ‘military obligations, including retirees, reservists, members of troop
program units,’ is ‘ensure continuity of essential services’ by subjecting the PMC employees under the
military chain-of-command, cf Guillory (n 174) at p 141.
724
Vernon (n 6) at p 421 stating ibid that the UK Sponsored Reserve Act ‘has proven successful since its
implementation. Vernon, ibid, refers to the example of members of the ‘sponsored reserve’ driving ‘tank
transporters’.
725
Guillory (n 174) at p 142.
726
Guillory (n 174) at p 142.
727
Of course, it would be helpful if the ICJ seized an opportunity to clarify its own standpoint by either
providing a more concise foundation for its effective control test, or by following the ICTY’s overall
control test.
728
Hessbruegge (n 376) at pp 305 et seq.
729
See above part II.3 and 4. Also, Tammy M Sittnick ‘State responsibility and maritime terrorism in the
strait of Malacca: persuading Indonesia and Malaysia to take additional steps to secure the strait’ (2005)
720
115
counterbalance this private power, it might prove useful to lower the benchmark for
holding states internationally responsible for the conduct of non-state actors, as lowering
the benchmark is likely to prompt states to reign in non-state actors with whom they
have dealings.730
Another way of facing the uncertainty in connection with the ‘control’ test under
art 8 DARS would be to circumvent this problem by explicitly empowering the PMCs
under art 5 DARS. However, this would require the Contracting State to amend its
legislation thus creating the necessary legislative basis for authorizing PMCs to exercise
governmental authority.731 Obviously, this process depends on the political will of the
state to clarify its relationship to the PMC. The same holds true for the proposed
transformation of PMC personnel into combatants, which also presupposes amended
domestic legislation.
With respect to the Home State’s responsibility for ‘its’ PMCs, it might be
helpful to further develop the doctrine of due diligence both inside and outside the realm
of HRL.732 Of course, this is not a short term solution. However, similar to the proposed
lower benchmark of meeting the ‘control’ for art 8 DARS, widening the obligations
under the doctrine of due diligence would be a means of counterbalancing the increased
power of non-state actors. Supplementing this, an attempt should be made to establish, at
least, coordinated domestic licensing regimes in the major Home States.733 Although the
existence of a domestic licensing regime is not, per se, sufficient to attribute
international responsibility to the state734 it might nevertheless prove useful from, at
least, two standpoints: a licensing regime will raise awareness in the Home State as to
the problems related to PMCs. Furthermore, it might assist in shaping the doctrine of
due diligence, ie, in developing standards of what a Home State can reasonable be
14 Pac Rim L & Pol’y J 743; Robert P Barnidge Jr ‘States’ due diligence obligations with regard to
international non-state terrorist organisations post September-11: the heavy burden states must bear’ Irish
Studies in International Affairs, Vol 16 (2005), pp 103-125.
730
Hessbruegge (n 376) at p 306 observes that the terrorist attacks of September 11, 2001 ‘caused states to
attempt to regain power.’
731
For instance, the authority to fight an IHL on behalf of the state.
732
Hessbruegge (n 376) at p 306 would seem to support this solution. Gibney et al (n 437) eg at p 267
propose the widening of a Home State’s responsibility to the effect that the state incurs responsibility due
to a lack of due diligence for violations of HRL by its nationals abroad.
733
As proposed by Stinnett (n 29) at pp 222-223. Obviously, such a coordinated solution would be rather
slow, too. If one concentrates on the major Home States, however, this approach might be more promising
and quicker than a suggested international regulatory regime, as, eg, proposed by Singer, PMFs and
international law (n 35) at pp 544-549.
734
See above part III.4.
116
expected to do in order to prevent ‘its’ PMC from harming other States and their
nationals.
2.
Responsibility of international organisations
It has been found above in part IV that IOs, like states, do not operate in a legal vacuum
when they use PMCs. However, the general rules for holding IOs responsible are much
less developed than in the area of state responsibility. This underdevelopment concerns
the primary and the secondary rules of responsibility. Examples for this are the ongoing
discussions on the extent to which rules of IHL apply to IOs, and the problem of how to
treat conduct ultra vires the competences of the IO.735 In comparison to these general
issues concerning the responsibility of IOs, the use of PMCs by IOs does not seem to
add too many additional problems. In particular, the question of attributing PMC
conduct to a subject of international law appears to be less problematic when the client
of the PMC is an IO.
This paper has suggested that IOs’ responsibility should be construed broadly,
thus taking account of their global prevalence and increasing number and impact.736 The
position of IOs on the international plane is strengthened by aligning, as far as possible,
the responsibility of states with that of IOs. Furthermore, the approximation of state
responsibility and IO responsibility takes account of the situation of potential victims of
conduct which violates international obligations. If IOs act like states, they should be
held responsible like states. Victims of such conduct should not have to depend on
whether the IO’s acting organs or agents exceeded the competences of the IO or not.
Therefore, if an IO chooses to send troops into a conflict, it should be responsible for the
conduct of its troops, whether these troops are private contractors or not.
As indicated above, the problem lies in determining which obligations an IO
bears. The main reason is that IOs are not parties to the majority of the treaties creating
international obligations, and that some obligations resting on states cannot be
transferred to IOs without adapting the obligation to the purposes and functions of the
organisation. There is no short-term solution for this problem. However, IOs must
increasingly become involved in treaty negotiations so that future international
735
See above part IV.4(a) and (b).
See above part IV.2 and 4(a) and (b), ia, by advocating an objective legal personality of IOs and the
binding effect of conduct of organs and agents of the IO which is ultra vires the competence of the IO:
736
117
obligations of IOs can be tailored to the particularities of the different IOs and firmly
anchored in the agreement. Regarding the existing treaties to which IOs are not parties,
especially the Geneva Conventions and its Protocols, IOs engaging in military
operations should assist in clarifying the often ambiguous situation by declaring
unilaterally which treaty obligations they consider to be binding upon them.737 This
would not solve the question to what extent the remaining obligations are applicable to
IOs. But such declarations would reduce the number of obligations under dispute.
737
As shown above in part IV4(c)(i), the UN has recently issued such declarations.
118
APPENDIX I – ABBREVIATIONS
AU
African Union
BAPSC
British Association of Private Security Companies
DARIO
Draft Articles on the Responsibility of International Organisations
DASR
Draft Articles on State Responsibility
DPH
Direct Participation in Hostilities
ECOWAS
Economic Community of West African States
EO
Executive Outcomes
HRL
International human rights law
ICRC
International Committee of the Red Cross
IHL
International humanitarian law
ILC
International Law Commission
IMF
International Monetary Fund
IPOA
International Peace Operations Association
MPRI
Military Professional Resources Incorporated
NATO
North Atlantic Treaty Organisation
OAS
Organization of American States
PMC
Private Military Company
PNG
Papua New Guinea
PSCAI
Private Security Company Association in Iraq
SADC
Southern African Development Community
UK
United Kingdom
UN
United Nations
UNMIK
United Nations Interim Administration Mission in Kosovo
UNTAET
United Nations Transitional Administration in East Timor
119
US
United States
VCLT 1969
1969 Vienna Convention on the Law of Treaties
VCLT 1986
1986 Vienna Convention on the Law of Treaties between States
and International Organizations or between International
Organizations
WEU
Western European Union
120
APPENDIX II – FURTHER INFORMATION ON PMCS
I.
Military provider firms
1.
Executive Outcomes
738
EO was established in South Africa in 1989.739 Although it was disbanded on 1 January
1999, it continues to be widely known.740 It can be regarded as the archetype of a
military provider firm.741 Originally founded as a ‘counterintelligence consulting firm’
EO,742 the firm started to act outside South Africa after the end of the Apartheid
Regime.743 EO is most often cited in connection with its operations in Angola and Sierra
Leone.744
Angola
In 1992, the Angolan Government contracted EO to secure oilfields, train Angolan
troops and direct operations against the rebel movement UNITA. EO’s support is
reported to have been crucial in recapturing mining areas and oilfields as well as
enabling a series of victories in 1994 that ultimately, in late 1994, forced UNITA to sign
a peace agreement.745
Sierra Leone
In 1995 the Sierra Leone Government hired EO to train its forces against the rebel
movement RUF. Again, EO not only improved the quality of these forces but also
successfully participated in actual combat operations, leading to negotiations and
subsequently, in late 1996, to a peace agreement.746
Sierra Leone is an example in which a military provider firms offered a ‘overall
unit package’, ie, a ‘stand-alone tactical military unit’ which does not complement an
738
For a detailed description of EO and its operations see Singer, PMF-study (n 1) at pp 101-118.
Singer, PMF-study (n 1) at p 102.
740
Ibid at p 101.
741
Ibid.
742
Ibid at pp 106-107.
743
Ibid at p 107.
744
For details on these operations and others see Singer, PMF-study (n 1) at pp 106-117.
745
UK Green Paper (n 2) para 24; Zarate (n 127) at pp 94-95.
746
UK Green Paper (note 2) para 24; Zarate (n 127) at p 96.
739
121
existing army but rather offers an alternative or substitute thereto.747 EO deployed to
Sierra Leone ‘a battalion-sized unit on the ground, supplemented by artillery, transport
and combat helicopters, fixed wing combat and transport aircraft, a transport ship and all
types of ancillary specialists (such as first aid and civil affairs).748
Comments on these operations
The operations in Angola and Sierra Leone are perceived to have been successful, at
least from a military point of view.749 In both states, EO was able to quickly gain
military ground for its principal governments and to force the opposing rebel movements
to sign peace-agreements.750 Both conflicts had been going on for many years before the
EO entered the plane. In Sierra Leone, EO only needed 9 days after the deployment of
its employees to stop the rebels’ advance on the capital and to force them to retreat 126
kilometres.751 These operations illustrate that, in such ‘weak’ states, it is not the quantity
of deployed men which is decisive but their quality; ie, the PMCs superior equipment,
military skills and intelligence can shift the balance of a conflict.752
Although many authors approved of EO’s conduct during these campaigns, even
in the area of human rights and humanitarian law, others expressed concern.753 EO
allegedly used controversial weapons like cluster bombs and fuel air bombs.754 Incidents
of looting and of machine-gunning of civilians were raised.755 Furthermore, the regime
in Sierra Leone allegedly pledged mining licences to EO due to a lack of liquid financial
resources.756 Some observers also worried about EO’s close connections to mining and
747
Singer, PMF-study (n 1) at pp 93-95. Another offer of military provider firms are ‘specialized “force
multipliers”’, ibid at pp 94-95. As such, the firms can provide skills that are too expensive for the client to
develop on its own (eg operation of advanced fighter-planes or artillery systems), or they can act as ‘minigenerals’ on the tactical level, thus providing sophisticated skills ‘at battlefield assessment, management,
and coordination’, see Singer, ibid.
748
Ibid and at pp 110-115 for more details.
749
Zarate (n 127) at p 102.
750
Singer, PMF-study (n 1) at pp 107-115; Friccione (n 5) at pp 765-769.
751
Singer, PMF-study (n 1) at p 112-113.
752
In both instances, Angola and Sierra Leone, the rebel movements outnumbered EO by far. EO
however, introduced new weapons and tactics into the conflicts, such as night-fighting, napalm, cluster
bombs, fuel air explosives, surprise long-range helicopter assaults. EO applied its ‘unique expertise in
low-intensity conflict.’ And it made ‘skilful use of its broader corporate network …, in particular its
experience with clandestine operations, underground networks, front companies, and sanctions busting.’
Singer, PMF-study (n 1) at pp 115-117.
753
See Zarate (n 127) at pp 96-98 with further references in fn 144; see also UK Green Paper (n 2) para
44.
754
UK Green Paper (n 2) para 44. Singer, PMF-study (n 1) at p 218.
755
Zarate (n 127) at p 96 with further references in fn 144. Singer, ibid.
756
Zarate (n 127) at p 96 with further references in fn 140; UK Green Paper (note 2) paras 40-41
122
energy corporations.757 Finally, concerns were raised with respect to EO’s determining
position in the 1996 internal politics of Sierra Leona, and the rumours on the firm having
had a role in the coup against the then Strasser regime.758
2.
Sandline
Papua New Guinea (PNG) ‘Operation Contravene’
The PNG Government contracted Sandline in 1997 to assist the struggling military in the
conflict against a secessionist movement (BRA). Sandline was, ia, to train the state’s
special forces, gather intelligence and to attack the BRA with the aim of rendering it
ineffective. The states’ military saw itself threatened by the government’s employment
of the PMC, especially because it was afraid of losing its influence and privileges. The
PNG military’s commander leaked the contract to the public, condemned it and
demanded that the state’s president resign. The military then supported the outbreak of
demonstrations against the government. Finally, after the demonstrations had turned
violent and the military encountered a ‘face-off’ with the Government’s security forces,
the Government backed down and resigned.
Although the conflict eventually led to negotiations between the new
Government and the BRA, thus stabilizing the situation in PNG, the events show how
PMCs can shift the ‘civil-military relations’ with destabilizing effect.759 The civil
government did not believe in its own military after the armed forces had not been able
to quell a secessionist movement for many years. This distrust lead to the government
contracting exterior and superior military skills, a decision which, in turn, alienated the
military against the government and lead to further civil unrest. As the example of
‘Operation Contravene’ shows, the appearance of even a small number of highly skilled
military personnel in a region with less sophisticated military skills and an unstable
civil-military relationship can disrupt the already fragile relationship between the civil
and the military realm of a state.760
757
Zarate (n 127) at pp 99-101; UK Green Paper (n 2) para 41; see also description of EO’s corporate
network; Singer, PMF-study (n 1) at pp 104-106.
758
Singer, PMF-study (n 1) at p 165.
759
Events cited after Singer, PMF-study (n 1) at pp 191-196. The contract between the PNG Government
and Sandline is reprinted ibid, Appendix 2, pp 245-254.
760
See Singer, PMF-study (n 1) at pp 194-195 and pp 198-199.
123
Sierra Leone ‘Sandline Affair’
The ‘Sandline Affair’ relates to operations in 1997 in Sierra Leone when Sandline was
contracted by the ousted President Kabbah to reinstall him into power. The ensuing
‘countercoup’ was a success. However, the shipment by Sandline of over 300 tons of
weaponry into Sierra Leone was found to be in circumvention of a UN arms embargo.
The British Government denied Sandlines allegation that its actions had been greenlighted by the British Foreign Ministry. Yet, Sandlines allegations were proven true and
the following ‘Sandline Affair’ damaged the reputation of the British Government and
nearly leading to the resignation of the British Foreign Minister.761
3.
Blackwater USA
Blackwater USA became known to the broader public when is four of its employees
were killed and publicly mutilated in Fallujah/Iraq in April 2004. Shortly after this
incident, Blackwater contractors entered into a firefight with insurgents in Nadjaf that
lasted for several hours. A Blackwater helicopter flew in supplies twice and evacuated a
wounded US Marine with a company’s helicopter.762
On its homepage it promotes its services, ia, as follows: ‘We are not simply a "private
security company." We are a professional military, law enforcement, security,
peacekeeping, and stability operations firm who provides turnkey solutions. We assist
with the development of national and global security policies and military
transformation plans. We can train, equip and deploy public safety and military
professionals, … create ground and aviation operations and logistics support packages,
develop and execute canine solutions for patrol and explosive detection, and can design
and build facilities both domestically and in austere environments abroad.’763
II.
Military consultant firms
1.
Military Professional Resources Incorporated (MPRI)
The product of MPRI, a company based in the US, is the expertise of the US military,
with a specialization ‘in military training, evaluations and assessments, war-gaming,
761
Events cited after Singer, PMF-study (n 1) at pp 114-115 and p 213.
See Singer, Warriors for hire (n 15) at *3. Blackwater advertises its services in the internet under
http://www.blackwaterusa.com (visited: 20 July 2006).
763
Available at: http://www.blackwaterusa.com/about/ (emphasis added; visited: 10 July 2006).
762
124
doctrine, simulations, research, and analysis.’764 This PMF is contracted by the US but
also provides services abroad, where it is sometimes perceived to be a proxy of the US
which offers a means of getting access to United States military expertise through
private channels, eg during MPRI’s operations in the Balkans.765
Croatia (‘Operation Storm’)
MPRI’s mission in Croatia during its hostilities with Serbian forces illustrates how
seemingly ‘innocent’ activities of a PMF can shift the balance of power in favour of the
Host State. In 1994, the Croatian Government employed MPRI, with the approval of the
United States Government, to ‘democratize the Croatian military and reorganize its
troop structure’ and to establish ‘organizational management structures for Croatia's
Ministry of Defense.’766 Not long after MPRI had commenced the training, Croatian
forces enjoyed unprecedented victories against Serb forces, culminating in the highly
successful ‘Operation Storm’. During this operation Croatian forces succeeded in
recapturing almost the entire Croatian territory that had been occupied by Serbs.767
Though MPRI did not participate in combat operations and denies that it took part in the
actual preparation of the offensive, observers noted that Operation Storm ‘was better
planned and conducted than on any other previous occasion’ 768
2.
Vinnell
In the summer of 2003, Vinnell, another US based PMC, was awarded a $48 million
one-year contract for the training of 9 battalions à 1000 men of the post-Saddam Iraqi
Army. This award was based primarily on Vinnell’s 25 years’ experience in training the
Saudi Arabian National Guard.769 The contract for training the Saudi National Guard is
reported to be worth more than $800 million and leads to more than 1,400 employees of
Vinnell being present in Saudi Arabia.770
764
For a detailed description see Zarate (n 127) beginning at p 104; Singer, PMF-study (n 1) at pp 119135.
765
UK Green Paper (n 2) para 50; Zarate (n 127) at pp 104-105. MPRI advertises under
http://www.mpri.com (visited: 20 July 2006).
766
Zarate (n 127) at p 106; UK Green Paper (n 2…) para 28.
767
Zarate (n 127) at p 107.
768
UK Green Paper (n 2) para 28. It was also observed that the operation ‘ resembled a U.S.-style attack.’
(Zarate (n 127) at p 107.
769
See S Rosenfeld ‘Iraq: Vinnell’s army on the defensive’ of 21 January 2004, available at
http://corpwatch.org/article.php?id=7842 (visited on: 18 August 2005).
770
See Singer, PMF-study (n 1) at p 13. Vinnell advertises under http://www.vinnell.com (visited: 20 July
2006).
125
3.
DynCorp International, LLC
DynCorp International, LLC, a US PMC, has been contracted to train the post-Saddam
Iraqi police-force.771 The company came first into the spot-light of the media while
performing a similar contract in the Balkans which obliged DynCorp to train police
forces, inter alia, in Bosnia. Employees of DynCorp were accused of having purchased
illegal weapons, forging passports and engaging in sex-trafficking and rape.772
III.
Military support firms
1.
KBR (formerly BRS)
KBR, a US company with its core business originally in the civilian constructionbusiness, is a subsidiary of the giant Halliburton holding. KBR has developed into one
of the major players in the provision of military contingency solutions. It has been the
backbone of almost every major US intervention abroad after the end of the Cold War,
eg, Somalia, Rwanda, Haiti, Bosnia, Kosovo.773
2.
Ronco
Ronco used to be a development aid company before specializing in the area of
demining.774
IV.
The contracting officer in the US Forces
The contracting officer normally stays in the headquarters office in the US, often
supervising various contracts worldwide. Although he may appoint representatives to
stay in the field, the powers of these representatives are limited so that he may seldom
‘change the contract’s terms and conditions.’775 His position therefore resembles a
‘liaison between commander and contracting officer.’ (id) If private contractors are
involved, the field commander therefore, instead of simply ordering a military unit or a
individual soldier to perform a certain task, has to work through the contracting officer,
771
Singer, Warriors for hire (n 15) at *2.
D Avant (n 2); Singer, PMF-study (n 1) at p 222. DynCorp advertises under http://www.dyn-intl.com
(visited: 20 July 2006).
773
Singer, PMF-study (n 1) at p 98 and a detailed description of BRS and some major operations at pp
136-148. See also Speros (n 71) at p 301. Further, Singer, Warriors for hire (n 15) at *3 with critical
remarks to Halliburton KBR in Iraq. Halliburton and KBR advertise under http://www.halliburton.com
(visited: 20 July 2006).
774
Singer, PMF-study (n 1) at p 98. Ronco advertises under http://www.roncoconsulting.com (visited: 20
July 2006).
775
Vernon (n 6) at p 384
772
126
with or without the ‘help’ of an representative, and convince him of the necessity of
changing the existing contract including the possible infliction of additional costs. The
contracting officer, if he agrees with the commander, then has to renegotiate the
contract. He, not the commander, bears the responsibility for financial implications of
the changes to the contract and might be reluctant to amend the contract.776 If private
individuals are to perform certain task, the situation is even more complex, for the
PMC’s employees are not party to the contract. The obligation rests on the PMC to
incite their employees to perform the owed service. However, the ability of the PMC to
exercise control over their employees is restricted to financial means.777
776
777
Ibid at p 384.
Ibid at p 389.
127
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ILC, Reports of the special rapporteur on ‘responsibility of international
organizations’
1. Report of the Special Rapporteur, Giorgio Gaja (55th session of the ILC (2003)),
U.N. Doc. A/CN.4/532, 2. Report of the Special Rapporteur, Giorgio Gaja (56th
session of the ILC (2004)), U.N. Doc. A/CN.4/541, 3. Report of the Special
Rapporteur, Giorgio Gaja (57th session of the ILC (2005)), U.N. Doc. A/CN.4/553,
4. Report of the Special Rapporteur, Giorgio Gaja (58th session of the ILC (2006)),
U.N. Doc. A/CN.4/564
ILC Reports on its work on ‘responsibility of international organizations’
1. Report of the International Law Commission on the work of its fifty-fourth
session, 29 April to 7 June and 22 July to 16 August 2002, ILC Report, A/57/10,
2002, chp. VIII, paras.458-488, 2. Report of the International Law Commission on
the work of its fifty-fifth session, 5 May to 6 June and 7 July to 8 August 2003, ILC
Report, A/58/10, 2003, chp. IV, paras.41-54, 3. Report of the International Law
Commission on the work of its fifty-sixth session, 3 May to 4 June and 5 July to 6
August 2004, ILC Report, A/59/10, 2004, chp. V, paras.61-72, 4. Report of the
International Law Commission on the work of its fifty-seventh session, 2 May to 3
June and 11 July to 5 August 2005, ILC Report, A/60/10, 2005, chp. VI, paras.192206
IPOA International Peace Operations Associations Code of Conduct of 31 May
2005, available at http://www.ipoaonline.org (visited 20 July 2006)
IPOA ‘Concept Papers’ for support operations in Darfur/Sudan and the Democratic
Republic of Congo, available at: http://ipoaonline.org/en/publications/research.htm
(visited: 20 July 2006)
Le Roux, Mariette ‘SA “has duty to regulate mercenary activities”’ in Cape Times of 7
June 2006
Lilova, Iliana ‘Problems with the privatisation of counterterrorism’ of 2005, available at
http://www.erta-tcrg.org/cri6224/ct-privatization.htm (visited:10 September 2006]
Rosenfeld, S ‘Iraq: Vinnell’s army on the defensive’ of 21 January 2004, available at
http://corpwatch.org/article.php?id=7842 (visited on: 18 August 2005)
Singer, Peter Warren ‘Warriors for hire in Iraq’ in: Salon The Web of 15 April 2004,
available at http://dir.salon.com/story/news/feature/2004/04/15/warriors/index.html
(visited: 22 June 2006)
Spiegel, P ‘IRAQ: No contractors facing Abu Ghraib abuse charges’ in Financial Times
of 9 August 2005, available at http://www.corpwatch.org/article.php?id=12535 (visited
on 3 October 2005
Stremlau, J ‘Isolationist backlash in US may not bode well for SA interests’ in The
Sunday Independent of 27 November 2005 at p 9
The Center for Public Integrity, website at http://www.publicintegrity.org/default.aspx
(visited: 5 September 2006)
The Grimmett Report, Conventional Arms Transfers to Developing Nations, 19972004, Report for Congress, U.S. Congressional Research Service, Library of Congress,
137
August 29, 2005, cited in and available at
http://www.globalissues.org/Geopolitics/ArmsTrade/BigBusiness.asp (visited on 11
October 2005)
UK Department for Trade and Industry (DTI), notice 3/05, available at:
http://www.dti.gov.uk/europeandtrade/strategic-export-control/sanctions-embargoes/bycountry/page9101.html (visited: 2 August 2006)
UK Foreign and Commonwealth Office (2002) ‘Private Military Companies: Options
for Regulation’ at para 17-31, available at
http://www.fco.gov.uk/Files/kfile/mercenaries,0.pdf (visited: 4 September 2005)
United Nations (UN) Documents
UN Charter of economic rights and duties of states 1974, GA Resolution 3281
(XXIX), (1975) ILM 251
UN Declaration on Principles of International Law concerning friendly
Relations and Cooperation among States in accordance with the Charter of the
United Nations, GA Resolution 2625 (XXV) of 24 October 1970, 25th Session.,
Supp. No. 28, at p 123, U.N. Doc. A/8028 (1970)
UN Declaration on the Establishment of a New International Economic Order
1974, GA Resolution 3201, (1974) 13 ILM 715
UN Declaration on the Inadmissibility of Intervention in the Domestic Affairs of
States and the Protection of their Independence and Sovereignty, GA Resolution
2131 (XX) of 12 December 1965, GAOR, 20th Session, Supp 14, p 11; (1966) 60
AJIL 662
UN GA Resolution 3171 (XXVIII) of 1973, GAOR, 28th Session, Supp 30, p 52
UN GA Resolution 60/1 of 24 October 2005 on the World Summit Outcome, UN
Doc A/Res/60/1
UN Model Contribution Agreement, UN Doc/50/995, annex; A/51/967, annex
UN Regulation for the United Nations Force in Congo, partly reprinted in M.
Hirsch (see above) at p 66-7 in n 21
UN Resolution on the Definition of Aggression of 1974, GA Resolution 3314
(XXIX) of 14 December 1974, GAOR 29th Session, Supp 31, p 142, (1975) 69 AJIL
480
UN Resolution on the Permanent Sovereignty over Natural Resources, GA
Resolution 1803 (XVII) of 14 December 1962, GAOR, 17th Session, Supp 17, p 15
UN Secretary-General's Bulletin: Observance by United Nations Forces of
International Humanitarian Law, ST/SGB/1999/13 (1999), available at
http://www.un.org/peace/st_sgb_1999_13.pdf (visited: 14 August 2006)
UN Universal Declaration of Human Rights (UDHR), UN General Assembly
Resolution 217 (III)(A) of 10 December 1948
US Army Field Manual (Headquarters of the Dep't of the Army, FM 3-100.21,
Contractors on the Battlefield (2003)
US Government Accountability Office (GAO) ‘Rebuilding Iraq – actions still needed
138
to improve the use of private security providers’ Report 06-865-T of 13 June 2006,
available at: www.gao.gov/new.items/d06865t.pdf (visited: 10 August 2006)
Yeoman, B ‘Dirty Warriors How South African hit men, Serbian paramilitaries, and
other human rights violators became guns for hire for military contractors in Iraq’ of
November 2004, available at http://www.barryyeoman.com/articles/dirtywarriors.html
(visited on 19 August 2005)
Boyd Webb ‘Mercenary bill is shot down in parliament’ in Cape Times of 23 May 2006
at p 6
VI.
Websites of PMCs and lobby organisations
Armorgroup International PLC, http://www.armorgroup.com/about.asp (visited: 5
September 2006)
BAPSC British Association of Private Security Companies, http://www.bapsc.org.uk
(visited: 5 September 2006)
Blackwater USA, http://www.blackwaterusa.com/about/ (visited: 5 September 2006)
Halliburton and KBR, http://www.halliburton.com (visited: 20 July 2006)
IPOA International Peace Operations Association, available at
http://www.ipoaonline.org (visited 20 July 2006)
MPRI Military Professional Resources Incorporated, http://www.mpri.com (visited:
5 September 2006)
PSCAI Private Security Company Association in Iraq, http://www.pscai.org/
(visited: 5 September 2006)
Ronco, http://www.roncoconsulting.com (visited: 20 July 2006)
Vinnell Corporation, http://www.vinnell.com (visited: 20 July 2006)
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