“PMSCs and The Law”
Rolf Limburg rolflimburg@live.nl 10253149
Master Thesis – Public International Law: International and European Law Supervised by prof. K.J. Heller
Abstract
The purpose of this thesis was to formulate an answer to the question whether or not international law sufficiently regulates the use of private military and security companies in contemporary armed conflict. After having set out the conceptual framework, including the legal framework in which PMSCs act, the thesis focused on two sets of problems: deficiencies relating to status determination and deficiencies in establishing State responsibility.
In the vast majority of cases PMSC personnel qualify as civilians under IHL, which affects their rights and duties. Upon directly participating in hostilities, they lose their civilian protection, and are prosecutable under domestic law for having participated, even if they have fully complied with the laws of war. The civilian status also affects third parties, as attacking civilians is permitted by IHL. Seeing PMSC personnel look and acts like ordinary soldiers, this makes it overly complicated to assess the legality of an attack. Relying on the notion of direct participation is no workable alternative, because the line between participating and not participating is extremely thin. It was then concluded that the civilian status is problematic for both sides involved.
The focus then shifted to the responsibility of the State hiring a PMSC. It has been showed that attribution under Article 4 is unlikely, since States are unwilling to incorporate PMSCs into their armed forces. Attribution under Article 5 is problematic, because of the vague notion of ‘governmental authority’ and the requirement that the internal law of the State needs to empower the PMSC to perform these governmental functions. States tend to avoid doing so. Attribution under Article 8 is only possible if it is established that the Contracting State has given specific instructions or that it controlled the operations of PMSCs. The required level of control is high and will seldom be reached. This leaves a responsibility gap compared to the full responsibility States face for conduct of their national army. Due diligence obligations provide a valuable added layer of State responsibility, but don’t completely close the gap.
Seeing these problematic aspects the conclusion is that international law does not sufficiently regulates PMSCs.
Contents
Chapter 1 – Introduction
Chapter 2 – Conceptual framework
Part 2.1 – Defining Private Military and Security Companies Part 2.2 – The Rise of Private Military and Security Companies Part 2.2 – Mercenaries and PMSCs
Part 2.3 – Legal Framework
Chapter 3 – Practical and Legal Deficiencies Part 3.1 – Non-Combatant Soldiers
Part 3.1.1 – Status
Part 3.1.1.1 – PMSC personnel as members of the armed forces? Part 3.1.1.2 – PMSC personnel as part of a militia or volunteer force belonging to a party to the conflict?
Part 3.1.1.3 - PMSC personnel as civilians Part 3.1.2 – Deficiencies
Part 3.1.2.1 – Deficiencies from the perspective of PMSCs Part 3.1.2.2 – Deficiencies from the perspective of third parties Part 3.1.3 – Conclusion
Part 3.1.4 – Suggestions Part 3.2 – Responsibility?
Part 3.2.1 – Violations of International Law Part 3.2.2 – State Responsibility
Part 3.2.2.2 – Due Diligence Chapter 4 – Conclusion
Bibliography
Chapter 1 – Introduction
There is a general assumption about warfare that it is engaged in by the military, that it is conducted by armies of citizens fighting for a common political cause. This assumption, however, is an illusion.1 States increasingly have turned to hiring Private Military and Security Companies (hereinafter: PMSCs) in situations of armed conflict.2 Functions traditionally performed by the security or military apparatuses of States have increasingly been contracted out to such private entities.3 In a 2013 congressional research service report it was estimated that private contractors amounted for 50% or more of the total U.S. military force in Iraq, Afghanistan and the Balkans.4 This percentage represents 112,000 contractor personnel in Afghanistan and over 95,000 in Iraq on March 2010.5
It is obvious that such a military transition poses challenges for international law. The rise in the presence of PMSCs in the theater of armed conflict occurred after the treaties governing the law of war were drafted and ratified.6 Moreover, PMSC personnel has repeatedly been involved in major violations of international law7, which has fueled a perception that PMSCs must exist in some legal vacuum or regulatory gap.8 Questions have evolved around the status of PMSC personnel under international humanitarian law (IHL): are they civilians, or combatants, or sometimes one and sometimes the other? Subsequently, if they cannot be distinguished from either civilians or combatants, how can opposing forces know whether it is lawful to attack them? And what conduct can PMSC personnel themselves engage in?
1 Peter W. Singer, ‘Corporate Warriors: The Rise of the Privatized Military Industry and Its Ramifications for
International Security’ (2002) 186 International Security, Vol. 26, No. 3, page. 190 (hereinafter: Singer)
2 Joseph C. Hansen, ‘Rethinking the Regulation of Private Military and Security Companies under International
Humanitarian Law’ (2012) 697 Fordham International Law Journal, Vol. 35, Issue 3, page. 699 (hereinafter: Hansen).
3 Emanuela-Chiara Gillard, ‘Business goes to war: private military/security companies and international
humanitarian law’ (2006) 525 International Review of the Red Cross, Vol. 88, No. 863, page. 526 (hereinafter: Gillard).
4 Moshe Schwartz, Cong. Research. Serv., R43074, Department of Defense’s Use of Contractors to Support
Military Operations: Background, Analysis, and Issues for Congress (2013)
5 Ibid, page. 24-25.
6 Hansen, supra note 2, page. 700.
7 Blackwater personnel has been prosecuted for torturing Iraqi citizens in the Abu Ghraib prison
(www.theguardian.com/law/2014/jun/30/iraq-lawsuit-defense-contractor-torture-abu-graib), Aegis personnel has been captured randomly shooting Iraqi civilians (http://www.telegraph.co.uk/news/worldnews/ middleeast/iraq/1504161/Trophy-video-exposes-private-security-contractors-shooting-up-Iraqi-drivers.html) and at the Nisour square incident fourteen civilians were shot indiscriminately (https://www.nytimes.com/2015/04/14/us/ex-blackwater-guards-sentenced-to-prison-in-2007-killings-of-iraqi-civilians.html).
8 James Cockayne, ‘Private Military and Security Companies’, in The Oxford Handbook of International Law in
Moreover, the list of violations of law has not been accompanied by an equally long list of convictions. Individual accountability has appeared to be difficult to achieve. This makes the role States play in using these companies extremely relevant. Since States hire PMSCs in order to outsource traditionally military functions, are they ultimately responsible for their conduct and, if so, under what circumstances?
This thesis will look at the role PMSCs play in contemporary warfare and touch upon these questions. It will address existing lacunas in international law and make suggestions. The first part of this thesis provides relevant background on PMSCs and the rules of IHL that govern them. The second part systematically addresses the theoretical and practical problems surrounding the use of PMSCs. The final part gives an answer to the main question of this paper: “Does international law sufficiently regulate the use of PMSCs in contemporary armed conflict?”
Chapter 2 – Conceptual Framework
This chapter will give an overview of what PMSCs are, what services they provide, how they have become significant factors in contemporary armed conflicts and how they are regulated under the current framework of international law.
Part 2.1 – Private Military and Security Companies
PMSCs are very diverse in their characteristics and their activities9, however, generally, one can say that they are private entities providing military services. These services are very diverse, ranging from serving meals and doing laundry to training armies and protecting military objects. Singer has defined PMSCs10 as “profit driven organizations that trade in professional services intricately linked to warfare; corporate bodies that specialize in the provision of military skills.”11 Seiberth takes as a common starting point that all these companies provide services which are, one way or another, affiliated to the field of military activities.12
Most PMSCs are companies organized according to corporate law and registered accordingly, openly taking part in economic transactions and bidding for governmental contracts.13 Singer views this corporate business form as their most distinctive feature.14 Companies can become pretty big, employing thousands of individual contractors, acquiring multi-million dollar contracts.
In the past, most controversy revolved around Private Military Companies (PMCs), or so-called ‘trigger pullers’. These companies provided actual armed services on the battlefield itself. An example is Executive Outcomes (EO), which was hired by the government of Sierra Leone in 1995 to counter rebel forces. The company succeeded, inter alia by using precision air strikes and artillery attacks.15 EO ceased operations in 1998 and with it, the use of PMSCs for actual combat activities has practically vanished.16 Such offensive combat services will
9 Corinna Seiberth, Private Military and Security Companies in International Law (Intersentia 2014)
(hereinafter: Seiberth) page. 37.
10 He uses the term PMF (Private Military Firm), which is a different name for the same thing. 11 Singer, supra note 1, page. 186.
12 Seiberth, supra note 9, page. 37. 13 Seiberth, supra note 9, page. 39. 14 Singer, supra note 1, page. 191. 15 Seiberth, supra note 9, page. 38. 16 Ibid, page. 37.
therefore not be considered by this thesis, however it will become clear that the line between defensive tasks and combat activity is a thin one.
It is useful to illustrate some of the services PMSCs provide by giving some examples.
DynCorp International is one of the most known military security companies and ‘a trusted
partner to commercial, government and military customers’. At this moment, the company is concerned with the advising, mentoring and training of the Afghanistan National Police and Afghanistan National Army17. Blackwater (renamed as Academi) received widespread notoriety when a group of its employees were involved in the killing of seventeen Iraqi citizens in Baghdad in 200718. In Iraq, the company inter alia provided the personal security detail for Paul Bremer (the highest ranking U.S. official at that time) and later on for all U.S. State Department officials.19
The wide variety of services provided by these firms makes it difficult to conclude on a precise and firm definition. This is relevant, because a legal definition of PMSCs should provide which actors constitute as PMSCs and what functions they are allowed to carry out following which rules.20 Scholars have categorized PMSCs by using the distinction of ‘active’ and ‘passive’ services, lethal and nonlethal capabilities and on the offensive or defensive nature of the service. Singer ranks them according to his ‘Tip of the Spear typology, dividing companies into three categories: military support firms, military consulting firms and military provider firms.21 Following his taxonomy, companies closer to
the battlefield (the tip of the spear) should be subjected to stricter regulation.
This theses will not, however, delve into definitional questions, because international humanitarian law as such is less concerned with formal labels and more directed at functional behavior.22 This thesis will therefore not subclassify PMSCs and favors using the definition
as formulated in the Montreux Document23. According to this document, PMSCs are “private
17
www.dyn-intl.com/media-center/press-releases/dyncorp-international-awarded-afghan-training-and-mentoring-contracts/ Last accessed August 2017.
18 https://www.theguardian.com/us-news/2015/apr/13/former-blackwater-guards-sentencing-baghdad-massacre
Last accessed August 2017.
19 Jeremy Scahill, Blackwater. The Rise of the World’s Most Powerful Mercenary Army (Nation Books 2007)
page. 69 (hereinafter: Scahill).
20 Ibid, page. 56.
21 Peter W. Singer, Corporate warriors: the rise of the privatized military industry (Cornell University Press
2003) 89 (hereinafter: Singer II)
22 Hansen, supra note 2, page. 701.
23 The Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to
A/63/467-business entities that provide military and/or security services, irrespective of how they describe themselves. Military and security services include, in particular, armed guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel.” The wideness of this definition takes into account the
reality of PMSCs appearing in different sizes and structures, providing different services. This makes it a sufficiently clear definition for the sake of this thesis
Part 2.2 – The Rise of Private Military and Security Companies
The use of private forces in armed conflicts is not a new phenomenon. It is something that has occurred throughout history. Every empire, from Ancient Egypt to Victorian England, utilized contract forces.24 However, it was the confluence of several changes or shifts at the start of the 1990s that led to the rapid emergence of the private military sector in which PMSCs operate.25 PMSCs in their current corporate business form find their roots in the post-Cold War era.26
The Cold War was a period of hyper-militarization. Consequently, its coming to an end led to a chain of military downsizing around the globe.27 This resulted into a large number of
experienced military personnel, as well as massive arms stocks, becoming available on the international market.28 Simultaneously, a series of new conflicts emerged. The end of the Cold War created a power vacuum that removed controls over levels of conflict while also releasing unresolved tensions and new pressures.29 At the same time, public support for intervention in potential conflict areas diminished. These factors created a demand for private security and military services coming from States that had previously downsized their military30 as from fragile states now lacking support from the great powers.31 The post-Cold
War downsizing thus fed both supply and demand of private military contractors, as new threats emerged.
S/2008/636 (hereinafter: the Montreux Document). This is the first and one of the most influential international instruments regulating PMSCs.
24 Singer, supra note 1, page. 190.
25 Fred Schreier and Marina Caparini, ‘Privatising Security – Law, Practice and Governance of Private Military
and Security Companies’, DCAF Occasional Paper No. 6 (2005) page. 3 (hereinafter: Schreier and Caparini).
26 Singer, supra note 1, page. 193. 27 Ibid, page. 193.
28 Seiberth, supra note 9, page. 40.
29 Schreier and Caparini, supra note 25, page. 4. 30 Seiberth, supra note 9, page. 40.
The second consequence of the end of the Cold War is the growth of the privatization movement and the belief that the private sector is both more efficient and more effective than the bureaucratic public sector.32 A strong emphasis on downsizing government and
large-scale privatization arose. This popular sentiment surrounding privatization allowed private firms not only to become potential providers of military services, but made them perhaps even the most favored solution.33 The proliferation of PMSCs is the ultimate representation of this neo-liberalist school of thought on the battlefield.34
This is reflected in another major event which is generally considered to have catalyzed the use of PMSCs: the war against terrorism, particularly the war in Afghanistan and Iraq.35 Days before 9/11, Donald Rumsfeld, at the time Defense Secretary under President George W. Bush, called for a wholesale shift in the running of the Pentagon, ‘supplanting the old Department of Defense bureaucracy with a new model, one based on the private sector.’36 The 9/11 attacks would provide the catalyst to forge ahead with this privatization agenda and by the time U.S. tanks rolled into Baghdad they bought with them the largest army of private contractors ever deployed in a war.37
Looking at the number of private contractors active in conflict zones and existing military policy, the conclusion is evident: PMSCs are clearly here to stay and we better get used to it.38 They have become a significant factor in contemporary warfare and thus need to be regulated and controlled. One of the rules that might apply to PMSCs is the ban on mercenarism. As mercenaries and PMSCs both receive payment for military and security services they are often compared to each other. Some have considered PMSCs as modern day mercenaries.39 If, in fact, this claim would be true, their use would be prohibited, which
would make any further analysis irrelevant. It is therefore necessary to clarify the relationship between PMSCs and mercenaries and establish that PMSCs as such are not banned under international law.
32 Deborah Avant, ‘The emerging market for private military services and the problems of regulation’ in Simon
Chesterman and Chia Lehnardt (eds), From mercenaries to market: The rise and regulation of private military
and security companies 181 (Oxford University Press 2007) page. 183.
33 Singer, supra note 1, page. 197. 34 Ibid, page. 197.
35 James O.C. Jonah, ‘Foreword’ in Simon Chesterman and Chia Lehnardt (eds), From mercenaries to market:
The rise and regulation of private military and security companies (Oxford University Press 2007).
36 Scahill, supra note 19, page. XIV. 37 Ibid, page. XVII.
38 Schreier and Caparini, supra note 25, page. 12. 39 Seiberth, supra note 9, page. 58.
Part 2.3 – Mercenaries and PMSCs
The term ‘mercenary’ comes from the Latin mercenarius, which is rooted in the word
merces, meaning ‘pays wages’, highlighting an undeniable economic agenda.40 This economic agenda is still inseparably connected to mercenaries in our common understanding of them as ‘hired guns’ or ‘soldiers of fortune’. This is something that connects PMSCs with mercenaries, as their contractors also provide military services in exchange for money. There is, however, more to the term mercenaries than this marginal financial aspect.
A simple definition of a mercenary is “a professional soldier hired to serve in a foreign army”41. Such conventional definitions generally contain two main criteria, which, taken together, distinguish mercenaries from ordinary soldiers: (a) they are not nationals of the State party to the conflict they are fighting for (foreign component) and (b) they act on the perspective of private gain (financial motivation).42 However, as logical as such definitions may seem, they are not unproblematic. UN peacekeepers, for example, are foreign fighters and may very well (partly) be motivated by financial gain. Nonetheless, they are not considered to be mercenaries.43
This is exemplary for the discussion about mercenaries. The problem is the definition of the word.44 The term is a loaded, subjective one, carrying lots of emotional baggage and connotations.45 This is also why no sharp distinction can be made between PMSCs and mercenaries. PMSCs could qualify as mercenaries, depending on the definition used.
Be that as it may, for an objective analysis of the relationship between PMSCs and mercenaries it is important to ignore these negative connotations and stick to the legal definition of the word. There are three instruments regulating mercenaries under international law: Article 47 of Additional Protocol I to the Geneva Conventions (AP I), The UN Mercenary Convention46 and the OAU Mercenary Convention47. According to Article 47 of AP I, a mercenary is any person who: a) is specially recruited locally or abroad in order to
40 Peter J. Hoffman, ‘Private Military and Security Companies’ in Thomas G. Weis and Rorden Wilkinson,
International Organization and Global Governance 385 (Routledge 2014) (hereinafter: Hoffman) page. 386.
41 The Oxford Essential Dictionary of the US Military 42 Seiberth, supra note 9, page. 60.
43 Ibid, page. 60.
44 Schreier and Caparini, supra note 25, page. 15. 45 Ibid, page. 17.
46 The United Nations International Convention against the Recruitment, Use, Financing and Training of
Mercenaries.
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. The requirements in the other two instruments are almost identical. PMSCs don’t naturally fall within this definition. PMSCs are no longer specifically hired to take part in active combat situations (as long as the force is limited to defensive tasks this is not the case48) and there is often a clear link between the conflict party and the private entity.49 Also, the requirement under (c) – one’s personal motivation – may well apply to PMSCs, but is very difficult to prove and assess.50 The definition of these international instruments is very narrow, which leads to the conclusion that only in rare cases a PMSC employee would fulfil all of the components and qualify as a mercenary. Therefore, irrespective of similarities between mercenaries and PMSCs, international law on mercenaries does not cover the phenomenon of PMSCs in most cases.51
Part 2.4 – Legal Framework
The previous parts have described the nature of PMSCs and their rise and role in situations of armed conflict. Also, it has been established that PMSCs are not mercenaries under international law. This part will now shortly set out the legal framework in which PMSCs act; a framework which is not designed for them and is thus often presumed to be at least partly deficient.
For the most part, PMSCs do inhabit a netherworld of legality, since there are currently no binding international agreements that directly address the legal status of PMSCs.52 A draft
convention on PMSCs – proposed by the Working Group on Mercenaries to the UN Human
48 Seiberth, supra note 9, page. 64. 49 Ibid, page. 64.
50 Ibid, page. 64. 51 Ibid, page. 64.
Rights Council in September 2010 – was not adopted by the Council.53 Other instruments are softer forms of law. The preface of the Montreux Document – presumably the most important document regarding the role of PMSCs during armed conflicts – mentions that it ‘is not a legally binding instrument and does not affect existing obligations of States under customary international law’ or treaty law.54 It ‘simply seeks to provide guidance on a number of thorny legal and practical points, on the basis of existing international law’.55 The International Code of Conduct for Private Security Providers (ICoC) endorses the principles of the Montreux Document. The agreement requires signatory companies to respect human rights and to adhere to humanitarian principles. It, however, only governs companies that formally sign on, which is (still) a voluntary thing to do.
Regardless of their non-binding legal status, these documents are works of importance when analyzing the role PMSCs play during armed conflict. The Montreux Document, for example, draws on a wide array of existing international rules and practices, such as inter alia the Geneva Conventions, the ICRC Study on Customary International Humanitarian Law and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.56 These documents therefore serve as important sources of interpretation and will often be referred to in this thesis.
The primary legal framework used by this thesis is, however, that of international humanitarian law (IHL). IHL provides comprehensive rules for the protection of individuals in situations of armed conflict and also regulates the conduct of hostilities.57 Its rules and
obligations apply directly to all individuals who find themselves in a territory on which there is an armed conflict, whether they are State or non-State actors, as long as their acts have a minimum link with the conflict. This is, by definition, always the case for acts for which PMSCs are contracted.58 At the same time international human rights law (IHRL) applies, in
53 The UN Draft Convention on the use of PMSCs, annex to UNHCR ‘Report of the Working Group on the use
of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination’ (2 July 2010) UN Doc A/HRC/15/25.
54 Montreux Document supra note 24, preface, para. 3. 55 Ibid, foreword.
56 James Cockayne, ‘Regulating Private Military and Security Companies: The Content, Negotiation,
Weaknesses and Promise of the Montreux Document’ (2009) 401 Journal of Conflict and Security Law, Vol. 13, No. 3 (hereinafter: Cockayne II), page. 402.
57 Lindsey Cameron and Vincent Chetail, Privatizing War: Private Military and Security Companies under
Public International Law (Cambridge University Press 2013) (hereinafter: Cameron and Chetail), page. 80.
times of peace and during armed conflict, and has many rules that are highly relevant to the types of activities in which PMSCs are engaged.59
One of the main differences between those two bodies of law is that the complete set of human rights fully applies to all persons involved, whereas for IHL the applicable rules depend on the formal status given to a person (either combatant or civilian). As PMSCs are (normally) not officially part of a States armed forces, but may look and act as if they are, they pose a particular challenge to this traditional dichotomy. This will be discussed in the first part of the next chapter.
59 Ibid, page. 113.
Chapter 3 – Practical and Legal Deficiencies
The previous chapter set out the much needed conceptual framework for this thesis. After having gained knowledge about PMSCs and their place within contemporary armed conflicts, it is now time to discuss the more fundamental practical and legal deficiencies surrounding them. These are status determination and unwanted consequences thereof (Part 3.1) and responsibilities under international law (Part 3.2), which will be discussed in turn.
Part 3.1 – Non-Combatant Soldiers
PMSC personnel are often portrayed as real life G.I. Joe’s; heavily armed, with ammo vests and in camouflage gear, driving around armored Humvees. Even though not always the case, this portrait is often reality. This soldier like appearance, however, does not affect their status under IHL, which is – in most cases – that of civilian, with according rights and duties. The next part will focus on the apparent blurring of the distinction between military and civilian actors; status determination will be explained, followed by a discussion on the difficulties the presumed civilian status of PMSC personnel causes.
Part. 3.1.1 – Status
At the heart of IHL lies the fundamental distinction between combatants and civilians.60 The purpose of this distinction is identical to the core purpose of IHL, to protect those who do not participate in hostilities.61 Firstly, it aims to limit civilian casualties to the maximum extent possible from the effects of armed conflict. Secondly, it acknowledges the reality of warfare and contains the right combatants have to participate directly in hostilities.62
The distinction determines the primary status of persons in the event of an armed conflict. Subsequently, this primary status determines both the protection afforded to a person by international law and the legal consequences of his or her conduct.63 Combatants may use force, within the limits imposed by international law, and hence may not be subjected to prosecution for doing so. They may not be tried for activities normally associated with the
60 Hansen, supra note 2, page. 704.
61 Jann K Kleffner, ‘Scope of Application of International Humanitarian Law’ in: Dieter Fleck, The Handbook
of International Humanitarian Law 43 (OSAIL 2013), page. 43.
62 Hansen, supra note 2, page. 704.
63 Hans-Peter Gasser and Knut Ipsen, ‘Combatants and Non-Combatants’ Dieter Fleck, The Handbook of
conflict, such as killing, inflicting harm or carrying firearms.64 Combatants are entitled to the so called ‘prisoner-of-war’ (POW) status65, which is based on their right to use force. The
right to have POW status corresponds with the right to receive the status of a combatant under IHL.66 Conversely, civilians may not be attacked. Only when they take direct part in hostilities, they temporarily lose this immunity for the duration of such participation. Additionally, as civilians do not have a right to take direct part in hostilities, if they do so, they will be ‘unprivileged belligerents’ or ‘unlawful combatants’ who are not entitled to POW status and may be tried for merely having participated in hostilities, even if they did not commit any violations of IHL.67
For analyzing the legality of the use of PMSCs it is thus important to assess their status, which is determinative for the conduct they are legally allowed to perform. Are they combatants or are they civilians? There are four categories of persons who can be considered combatants, which is linked to Article 4 of Geneva Convention III (POW status). Simultaneously, a civilian is any person who does not belong to one of these categories.68 For PMSC employees, the following two categories are the most relevant:
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;69
2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including organized resistance movements, 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.70
64 Louise Doswald-Beck, ‘Private Military Companies under international humanitarian law’ in Simon
Chesterman and Chia Lehnardt (eds), From mercenaries to market: The rise and regulation of private military
and security companies 115 (Oxford University Press 2007) (hereinafter: Doswald-Beck) page. 116.
65 Article 4 of the Geneva Convention III Relative to the Treatment of Prisoners of War, Roberts and Guelff
(eds), Documents on the Laws of War (3rd edn, Oxford 2000) (hereinafter: Geneva Convention III). 66 Seiberth, supra note. 9, page. 106.
67 Gillard, supra note 3, page. 531. 68 Additional Protocol I, Article 50(1)
69 Geneva Convention III, Article 4A(1). The Detaining Power does not have to recognize the government the
armed forces are part of, Geneva Convention III, Article 4A(3).
The last category, ‘participants in a levée en masse, or citizens who respond spontaneously to invasion’71 is irrelevant for PMSCs.72
Part 3.1.1.1 – PMSC personnel as members of the armed forces?
To fall under this category, PMSC personnel has to be formally incorporated into the armed forces of a State.73 How a State incorporates individuals into its armed forces is a matter of internal law and whether this requirement is fulfilled depends on the will of the internal legal regime of the State in question.74 However, absent any national law, there is no clear-cut way to determine whether or not PMSC personnel can be considered as members of the armed forces. Armed troops of a State may include not only officially incorporated armed forces, but also groups and units falling under their command, being responsible to that State.75 This has to be assessed on a case-by-case basis taking into account factors such as if personnel has to comply with national procedures for enlistment or conscription, is subject to military discipline and justice and forms part of the military chain of command and hierarchy.76 Membership is not in all cases self-evident and can depend on the interplay of several factors. This being said, States are typically not inclined to incorporate PMSCs into their armed forces. Doing so would be contrary to the purpose of hiring PMSCs in order to reduce the number of armed forces and related costs.77 Next to this, some States use PMSCs to avoid responsibilities that do arise in relation to their own armed forces.78 This leads Gillard to conclude that there are likely to be very few instances in which PMSC personnel are factually incorporated into the armed forces of a State.79
71 Geneva Convention III, Article 4A(3) and Geneva Convention III, Article 4A(6).
72 Doswald-Beck, supra note 64, page. 116. See also Montreux Document, Article 26(B), mentioning only the
other two categories.
73 Montreux Document, page 36, statement 24. 74 Seiberth, supra note 9, page. 106-107.
75 Evgeni Moyakine, The Privatized Art of War: Private Military and Security Companies and State
Responsibility for their Unlawful Conduct in Conflict Areas (Intersentia 2014) (hereinafter: Moyakine) page.
169.
76 Gillard, supra note 3, page. 533. The list in not conclusive. 77 Seiberth, supra note 9, page. 107.
78 Doswald-Beck, supra note 64, page. 118. 79 Gillard, supra note 3, page. 533.
Part 3.1.1.2 – PMSC personnel as part of a militia or volunteer force belonging to a party to the conflict?
This category focusses on members of groups independent of a State’s armed forces, but nonetheless fighting alongside them.80 This is the case if PMSCs constitute an organized armed group “belonging to” a party to the conflict and fulfill the four criteria defining that group. 81 According to the ICRC Commentary, in order ‘to belong’, there should be a de facto relationship between the organization and the party which in is a state of war. This relationship may find expression merely by tacit agreement, if the operations are such as to indicate clearly for which side the resistance organization is fighting.82 The ICTY provided further clarity on the relationship between group and State: ‘in order to qualify as lawful combatants (…) there has to be control over them by a Party to a conflict, and, by the same token, a relationship of dependence and allegiance vis-à-vis that Party to the conflict [emphasis added]’.83
In principle, there is no reason to assume that such a relationship between a State and a PMSC cannot exist. Be that as it may, again according to the ICRC Commentary, individuals must be fighting on behalf of a State to receive a combatant status.84 It has been argued that this means that the provision can only apply to persons hired to take direct part in hostilities.85 As States no longer hire PMSCs to perform active combat functions (see Part 2.1), the remainder of PMSCs would not fall under this category. This is, however, not a settled debate. What the wording ‘fighting on behalf’ in combination with the ‘combatant’ status does show is that even if the provision applies, it will only apply to a very small number of PMSCs hired to carry out activities close to the heart of military operations.86 Companies that satisfy the above would then have to meet the four additional conditions: that of being commanded by a person responsible for his subordinates; that of having a fixed distinctive sign, that of carrying arms openly and that of conducting their operations in accordance with the laws and customs of war. Whether or not these conditions have been met must be assessed on a case-by-case basis. Most PMSC personnel are not likely to fulfill all of
80 Ibid, page. 534.
81 Montreux Document, page 36, statement 24.
82 Jean S Pictet (ed), Commentary, Geneva Convention relative to the treatment of prisoners of war (Geneva:
ICRC 1960) (hereinafter Pictet) page. 57.
83 ICTY, Appeals Chamber, The Prosecutor v. Dusko Tadic, (IT-94-I), Judgement of 15 July 1999, para. 94. 84 Pictet, supra note 82, page. 57.
85 Gillard, supra note 3, page. 534-535. It depends on their individual participation in hostilities. 86 Ibid, page. 534-535.
them. They may not be subject to responsible command and often lack the training necessary in order to be able to act in accordance with the laws of war.87 However, based on an analysis
of the practice of PMSCs in Afghanistan and Iraq, the condition that their staff is least likely to fulfil is that of wearing a distinctive sign.88 The lack thereof makes it extremely difficult to identify their personnel. PMSCs therefore don’t normally fall under this category.
Part 3.1.1.3 – PMSC personnel as civilians
The apparent conclusion of the above is that only in rare cases PMSC personnel will qualify as ‘combatants’ under IHL. Consequently, in the large majority of cases, PMSC personnel will be civilians. This conclusion is also drawn in the Montreux Document and shared by most commentators. Based on the realities of the industry, the vast majority of contractors will be considered civilians, because they are almost never formally incorporated and will seldom meet all requirements of Article 4(A)(2) Geneva Convention III.89
Part 3.1.2 – Deficiencies
As rights and duties depend on the primary status awarded to a person, the civilian status has consequences for PMSC personnel. This part will discuss the problems of these consequences and will do so choosing two perspectives: the perspective of PMSCs and the one of their opponents. It should be noted that the deficiencies to be discussed are not in all cases problematic for the selected side, but are at least problematic for the functioning of the law. Part 3.1.2.1 – Deficiencies from the perspective of PMSCs
PMSC personnel qualifying as civilians have corresponding rights and duties. Between those rights and duties a mutual interplay exists. A failure to comply might lead to the denial of a right. Most prominently this is seen in the prohibition to take part in hostilities, which is reserved for combatants. Civilians enjoy a strong IHL protection regime, but only if and for as long as they refrain from taking part in hostilities. If they don’t do so, there are three main consequences.
First, pursuant to Article 51(3) AP I, civilians enjoy immunity from attack, unless and for such time as they take a direct part in hostilities. If they participate in hostilities, they lose this
87 Seiberth, supra note 9, page. 108. 88 Gillard, supra note 3, page. 535.
protection and may legally be targeted. Civilian participants are labeled either ‘unlawful combatants’ or ‘unprivileged belligerents’.90
Second, those who participate in hostilities do not benefit from prisoner of war protections, since civilians who do so generally lack that right.91 According to Article 4(A)(4) of Geneva Convention III “civilians accompanying the armed forces without being members thereof, such as (…) supply contractors, members of labor units or of services responsible for the welfare of the armed forces” are granted POW status. PMSCs could fall under this category. This protection, however, also ceases to exist the moment their personnel participates in hostilities.92
Third, civilians who have directly participated in hostilities may be prosecuted to the extent that their activities, their membership, or the harm caused by them is penalized under national law (a wide variety of possibilities comes to mind, such as: murder, treason, inciting violence).93 IHL does not expressly prohibit direct participation as such. However, since civilians lack the combatant privilege, they do not enjoy immunity from domestic prosecution for lawful acts of war, that is, for having directly participated in hostilities while respecting IHL.94
The severity of these consequences makes it necessary to look at what ‘directly participating in hostilities’ means and if the services still provided for by PMSCs could fall within its reach.
‘Direct participation in hostilities’ is a rather complex term and far from self-evident, as treaties provide neither a definition nor precise guidance on the subject. The Commentary to Protocol I defines it as ‘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.’95 Since this definition was generally considered to be vague and overinclusive, the ICRC issued interpretative guidance on the subject. Three requirements have to be met for an act to qualify as direct participation
90 Michael N Schmitt, ‘Humanitarian Law and Direct Participation in Hostilities by Private Contractors or
Civilian Employees’ (2004-2005) 5 Chicago Journal of International Law 511 (hereinafter: Schmitt) page. 519.
91 Ibid, page. 519-520. The exception for ‘persons accompanying the armed forces without being members
thereof’ will be discussed later on.
92 Additional Protocol I, Article 51(3),
93 Interpretative guidance on the notion of direct participation in hostilities under international humanitarian law,
International Committee of the Red Cross (Geneva 2009), page. 84.
94 Ibid, page. 83.
95 Yves Sandoz and others (eds), International Commentary of the Red Cross, Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff Publishers 1987),
in hostilities: (1) the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harms); (2) there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that acts constitutes an integral part (direct
causation) and (3) the act must be specifically designed to directly cause the required
threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).96
‘Directly participating in hostilities’ is therefore not limited to firing shots at an enemy opponent. It is also not limited to purely offensive services, as IHL does not distinguish between the offensive or defensive nature of an act.97 A person can ‘directly participate’ in a variety of ways. The Montreux Document lists as examples of ‘direct participation’ in which PMSC personnel may be involved: guarding military bases against attacks from the enemy party, gathering tactical military intelligence and operating weapon systems in a combat operation.98 Support functions such as equipment maintenance, logistic services or catering lay at the other end of the spectrum and will not qualify as ‘direct participation’.99 Between these two ends lies a grey zone of indeterminacy. An example offered by the ICRC is the guarding of a military object against an enemy attack and the guarding of the same object against violence unrelated to occurring hostilities. The latter would be a form of self-defense or law enforcement whereas the former would account to directly participating in hostilities.100 Even more confusing is the situation where the guarded object is a non-military building that has become a legitimate target because of its use. This thin line can just as easily be crossed in cases of intelligence gathering. A person looking for ‘nontactical’ intelligence can accidently stumble upon tactical information, thereby possibly directly participating in hostilities.101
These are not just hypothetical situations, these are services PMSCs are specifically hired to provide. The Montreux Document recognizes this and states that “whether the service would
96 ICRC Interpretative Guidance, supra note 94.
97 Additional Protocol I, Article 49(1): ‘“Attacks” means acts of violence against the adversary, whether in
offence or in defence.’
98 Montreux Document, statement 25, page. 37. 99 Ibid, page 39.
100 Hansen, supra note 2, page. 714. 101 Ibid, page. 715.
cause the PMSC to participate directly in hostilities should be given special consideration”102 This sidesteps the actual problem of desirability. Should PMSCs be allowed to provide such services, seeing that it places their personnel in an unfavorable position under IHL? The Mercenary Working Group thought not, including in their Draft Convention that each State Party shall “prohibit the outsourcing to PMSCs of functions which are defined as inherently State functions, including direct participation in hostilities (…)”.103 This straight prohibition is often countered by the ‘the reality of warfare’ argument: PMSCs are present in the theater of armed conflict and engage in a wide variety of activities that constitute direct participation. A straight prohibition would require an enormous change in the way PMSCs are utilized and is likely unrealistic.104 This is a non-argument. Reality shouldn’t prevail over ideality. If the current status quo is undesirable, it should be changed. PMSC personnel directly participating in hostilities can face serious consequences. It is said that they have consented to this risk by agreeing to operate in conflict areas for substantial amounts of money. The danger to be attacked is however a different kind of danger than being prosecuted under the laws of war for simply guarding a military basis.105 Even more, it is highly doubtful that PMSC personnel are aware of the risk they face by performing the services they perform. They are rarely schooled in the law of armed conflict106 and can therefore not make a well-substantiated decision.
Certainly, an outright prohibition will still be problematic. It has to deal with the indeterminacy of the term ‘direct participation’ and it cannot categorically prohibit PMSC personnel to directly participate in all situation. Sometimes hostilities will be brought to them, regardless of the services they provide.107 Nevertheless, services which on its own cause PMSCs to participate directly, or involve a high risk of doing so, could be banned, thereby protection PMSC personnel.
The conclusion is evident. The high amount of PMSCs present around the world perform a wide variety of services which causes them to – willingly or unwillingly, knowingly or unknowingly – directly participate in hostilities, thereby becoming lawful targets and prosecutable for their actions. Moreover, they won’t enjoy the prisoner of war status combatants have. Instead of tackling this problem, the international community merely
102 Montreux Document, page 33.
103 PMSC Draft Convention, supra note 54, Article 9. 104 Hansen, supra note 2, page. 716-717.
105 Ibid, page. 719.
106 Doswald-Beck, supra note 64, page. 119. 107 Hansen, supra note 2, page. 717.
accepts its existence, apparently appreciating the functioning of PMSCs higher than the risks included in it. PMSC personnel should be protected against this practice. How this can be done will be discussed later on.
Part 3.1.2.2 – Deficiencies from the perspective of third parties:
“The Generals’ personal security detail was made up of Marines. The Ambassador’s one of
private contractors. They all looked exactly alike. (…) So here we are in Iraq, but no one can figure out exactly who is working for who.”108
The civilian status of PMSCs affects both sides party to the conflict in similar ways. PMSC personnel directly participating in hostilities engage in unlawful conduct. The same goes for third parties unable to distinguish PMSC personnel from soldiers.109 Civilians are protected from attack regardless of how they look.110
In traditional warfare it was usually clear who is a member of the opposing armed forces and who is not.111 This made it easy to abide by the principle of distinction. As can be distracted from the anecdote, that is no longer the case. PMSCs and soldiers (‘the armed forces’) often intermingle and are hard to distinguish from one another. This puts a third party seeking to comply with IHL in a difficult position as it cannot a priori assess the status of persons involved in the conflict. The second option, relying on the notion of ‘direct participation’, doesn’t provide a workable alternative. A third party may (temporarily) legally attack a civilian PMSC if he/she is directly participating, however whether or not this is the case is extremely hard to determine. This is specifically problematic with regards to PMSCs, since their personnel – more often than civilians – may look and act like they directly participate in hostilities, whereas in legal reality they do not. An off-duty contractor walking around a military base may give the impression of guarding it, and thus directly participating, whereas he is not.112 A contractor’s status may switch at the end of a shift.113 For attacking third
108 Quote from a Marine Lieutenant in Iraq. Schmitt, supra note 91, page. 530-531, footnote. 77. 109 Hansen, supra note 2, page. 720.
110 Additional Protocol I, Article 51(2). There is no duty for civilians to distinguish themselves from the armed
forces of a State.
111 Gasser and Ipsen, supra note 63, page. 233. 112 Hansen, supra note 2, page. 715.
parties the difference between the two is significant: the one is legal conduct, the other can be a war crime.114
There is often no principled way for third parties to determine PMSC personnel status, neither can they coherently assess if PMSC actions accord to ‘direct participation in hostilities’.115 In some instances they may attack PMSC personnel legally, claiming direct participation in hostilities. In other instances, based on a similar assessment, they may have only been under the reasonable impression that they could do so. PMSC personnel’s appearances don’t always reflect their legal status. Consequently, whether or not a third party can legally target a contractor requires a difficult assessment. In some situations, it is only though a post hoc legal determination that one can learn the status of PMSC personnel and thereby the legality of the attack. 116
Part 3.1.3 – Conclusion
The discussed deficiencies make the presumed civilian status of PMSC personnel problematic for a variety of reasons, which can be summarized as follows:
a) PMSC personnel can be contractually obligated to perform certain services, but upon providing these services directly participate in hostilities, which renders their conduct unlawful, making them punishable under national law. Moreover, if captured, they won’t be granted POW status.
b) PMSC personnel appearing as armed forces affect third parties assessing the legality of their conduct. It is practically impossible to distinguish PMSC personnel from ordinary soldiers. Nevertheless, this distinction remains crucial for the legality of an attack.
c) Even if any of the sides seek to comply with the structures of IHL, they may not be able to do so, as determining direct participation is extremely difficult.117
The result? Correctly categorizing the great majority of PMSC personnel under IHL as civilian proves to be problematic for all sides involved in an armed conflict.118
114 International Criminal Court (ICC), Elements of Crimes, 2011, ISBN No. 92-9227-232-2. The document is
available online: www.icc-cpi.int/. Article 8(2)(b)(i) – War Crime of Attacking Civilians.
115 Hansen, supra note 2, page. 717. 116 Ibid, page. 717.
117 Ibid, page. 719. 118 Ibid, page. 720-721.
Part 3.1.4 – Suggestions:
The previous part has discussed the deficiencies surrounding the status of PMSC personnel. Subsequently, this part will make some suggestions that may improve the system. There are two ways to go: changing the services PMSCs are allowed provide or changing the PMSCs that are allowed to provide these services.
The first way has shortly been touched upon and is prohibiting States to hire PMSCs to perform services that will evidently lead to direct participation, or which include a high risk thereon. This is a variety of the way chosen by the UN Mercenary Working Group. The Mercenary Working Group favors an outright prohibition on direct participation. Doing so, it forgets to take into account two factors: i) the indeterminacy of the term ‘direct participation’ and ii) the reality that PMSC personnel are present in a hostile environment in which they must be able to participate. Prohibiting direct participation altogether renders unlawful any participation, even if the hostilities were brought to the PMSC personnel.119 Focusing on the services sidesteps these problems. Categorizing ‘inherent’ and ‘high risk’ services120 and prohibiting States from hiring PMSCs to perform them will reduce the risk of PMSC personnel directly participating in hostilities, while at the same time limiting their presence in the theater of armed conflict, thus limiting the risk third parties have to target a civilian PMSC. The list of services does not need to be comprehensive and could be modified if necessary.
The second way does ‘acknowledge the reality that PMSCs are performing these services’. Instead of a prohibition, it suggests an adjustment of status which is based on the same categorization of activities. Hansen refers to those as “contractor combatant activities”121
PMSC personnel hired to perform such activities should categorically be presumed to be combatants instead of civilians. This can be accomplished by requiring from the States that hire these PMSCs that they are either incorporated into their armed forces122 or comply with the combatant requirements of Article 4(A)(2) of the Geneva Convention III.123 This approach benefits both sides party to the conflict. PMSC personnel would receive the appropriate benefits of the combatant status and won’t be prosecutable as long as they respect
119 Ibid, page. 717.
120 Such as the examples given by the Montreux Document: Guarding military basis against attacks from the
enemy party, gathering tactical military intelligence, operating weapons systems in a combat operation.
121 Hansen, supra note 2.
122 It has to be noted that this is unlikely. 123 Hansen, supra note 2, page. 721-722.
IHL. Third parties will be able to distinguish combatant PMSCs from civilian PMSCs seeing as the first will be required to wear distinctive signs. Moreover, the combatant status will categorically be determined the moment a PMSC is hired instead of individually established on a case-by-case basis.124
As the current situation is surrounded by clouds of uncertainty and indeterminacy, the biggest advantage of either of the two alternatives is that they offer clarity. Regardless of the feasibility and the (un)willingness of States to regulate PMSCs, it is possible to create an appropriate environment for PMSCs in contemporary armed conflict – one that fits their role – instead of sticking to the unsatisfactory status quo.
124 Ibid, page. 732-734.
Part 3.2 – Responsibility?
The previous part has discussed the status of PMSC personnel and the services they are hired to perform. Performing these services, PMSCs have often been involved in violations of international law, which has revealed deficiencies in the system of international State responsibility. Before discussing this system, the following part will give an overview of violations of international law PMSCs have been involved in.
Part 3.2.1 – Violations of International Law
In the introduction of this thesis, it has been stated that PMSC personnel has ‘repeatedly been involved in major violations of international law’. To get a grasp on what this abstract claim truly means, this part will shortly illustrate it. It will thereby rely on an extensive study conducted by Evgeni Moyakine.125
In short, PMSCs have been involved in a diverse and extensive range of violations of international law, inter alia: indiscriminate shootings and civilian casualties; property damage; torture and other cruel inhuman, or degrading treatment or punishment; sex trafficking, sex slavery and running prostitution networks; drug running, profiteering in criminal networks and weapons violations.126 The list of examples is long and overwhelming. The following are some that stand out.
In 2007, Blackwater personnel (often described as having ‘very quick trigger fingers’) initiated a shooting in Iraq which resulted in the death of seventeen citizens, none of whom were armed. Blackwater claimed to have been attacked, but there was no evidence supporting this. It appeared that the personnel involved got stuck in traffic on Nisouri square and opened fire to get out.127 That same year, following US congressional research, it was concluded that
Blackwater personnel was involved in 195 shooting incidents since 2005, which is an average of approximately one incident every three to four days. In most of these cases it was Blackwater personnel that fired first.128 These incidents are not contained to Blackwater.
125 Evgeni Moyakine, The Privatized Art of War: Private Military and Security Companies and State
Responsibility for their Unlawful Conduct in Conflict Areas (Intersentia 2014)
126 This list is limited to more serious violations of international law. More ‘innocent’ – but also undesirable –
conduct such as excessive drinking, drug use, sexual misconduct etc. is, though committed, not considered.
127 Moyakine, supra note 125, page. 8-11. 128 Ibid¸page. 13.
Many companies seem to have adopted the operational policy of pre-emptive shooting on suspicious individuals and vehicles without being attacked first.129
Besides such excessive use of force, there have been numerous reports of abuses of detainees committed by PMSC personnel in Iraq and Afghanistan. Most notorious is the Abu Ghraib detention facility, in which detainees were raped, sexually assaulted, given electric shocks, attacked by military dogs, improperly isolated, and humiliated.130 In this case, none of the contractors – directly or indirectly – responsible for the abuses were charged with any crime, whereas their counterparts from the Army and the Marines have been sentenced to prison time by military courts.131
Moreover, employees of Dyncorp were involved in illegal behavior, ‘purchasing illegal weapons, forged passports and women’, using those women for their own personal enjoyment. Among these women were girls of only 12 years old.132 Employees of DynCorp have also been accused of drug trafficking from Columbia to the US.
Ultimately, in the course of carrying out their services, PMSC employees seem to be tempted to ignore weapon restrictions.133 Examples are Blackwater personnel using bullets that shatter, ‘creating untreatable wounds’134, and Zapata personnel, shooting illegal weapons
(accidently) at a US Marine Unit.135
Individual contractors are practically never prosecuted for their unlawful conduct. In case of Iraq, almost no prosecutions took place, despite of the highly violent nature of the conflict.136
The judicial system of Territorial States is often dysfunctional or unwilling to prosecute. The Contracting States face difficulties with extraterritorial jurisdiction and conducting investigations abroad. And PMSC personnel are surprisingly often granted immunity from prosecution.137 This makes the primary alternative very relevant: State responsibility.
129 Ibid, page. 18.
130 Ibid, page. 20-25.
131 Chia Lehnardt, Private military companies and state responsibility, in Simon Chesterman and Chia Lehnardt
(eds), From mercenaries to market: The rise and regulation of private military and security companies (Oxford University Press 2007) 139 (hereinafter: Lehnardt) page. 141.
132 Ibid, page. 26-27. 133 Ibid, page. 27-29.
134 Scahill, supra note 19, page. 78. 135 Moyakine, supra note 125, page. 29. 136 Seiberth, supra note 9, page. 114.
137 Ibid, page. 113-116. An example is the Order of the Coalition Provisional Authority (CPA) No 17, granting
Part 3.2.2 – State Responsibility
Under international law, States may be held responsible for internationally wrongful acts that can be attributed to them.138 This is the doctrine of State responsibility, addressed in the Draft
Articles prepared by the International Law Commission (hereinafter: DARS).139 Article 1 DARS is the core provision of the whole text.
“Every internationally wrongful act of a State entails the international responsibility of that State”
Article 2 DARS addresses the elements of an internationally wrongful act of a State.
“There is an internationally wrongful act of a State when conduct consisting of an action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.”
These conditions need both to be met. For the second element this means that the conduct must constitute a breach of an international legal obligation in force for that State at that time.140 These obligations are derived from for example human right treaties. Consequently, the content of international obligations of a specific State is decisive for determining whether or not it has breached international law.141
The establishment of what is – and what is not – wrongful conduct is not the purpose of this thesis. Therefore it will assume that the conduct would constitute a breach of international obligations if the first element of attribution is met. The concept of attribution recognizes that a State is an abstract entity that cannot act of itself. An act of the State must involve some action or omission by a human being or group: “States can act only by and through their agents and representatives”.142 The State responsibility is thus dependent upon the link
between the State and persons or entities actually committing unlawful acts. Only those activities that can be attached to States as sovereign entities functioning in the international
138 Cameron and Chetail, supra note 57, page. 134.
139 Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries’ in ILC,
‘Report of the International Law Commission on the Work of its Fifty-third Session, UN GOAR, 56th Sess.,
Supp. no. 10, 43, UN DOC. A/56/10 (2001) (hereinafter: ILC Articles on State Responsibility)
140 Commentaries to the ILC Articles on State responsibility, commentary to Article 2, para 1. 141 Moyakine, supra note 125, page. 207.
arena in an objective manner can be attributed to them.143 This is based on the distinction between public and private conduct.144
Attribution is a complicated matter, especially since States don’t always act through official agents and representatives (as is the case with PMSCs). The next part will thus focus on the possibility to attribute unlawful PMSC conduct to the hiring/contracting State.145 If attribution of conduct fails there is a safety net called due diligence. A State can be responsible if it has failed to prevent or respond to breaches of international law by PMSCs. Responsibility through breaches of obligations to show due diligence will be discussed subsequently.
Before doing so, it must be mentioned that the consequences of invoking State responsibility are significant. According to Article 30 DARS the responsible State is under an obligation to cease that act and to offer appropriate assurances of non-repetition. Simultaneously, Article 31 DARS obliges the responsible State to make full reparation for the injury caused by the international wrongful act. The Montreux Document recognizes this obligation: “Contracting States have an obligation to provide reparations for violations of international humanitarian law and human rights law caused by wrongful conduct of personnel of PMSCs when such conduct is attributable to the Contracting States (…)”146
Part 3.2.2.1 – Attribution
There are several ways in which a Contracting State can be held responsible for violations of international law committed by PMSCs or their personnel. The Montreux Document states that:
“although entering into contractual relations does not in itself engage the responsibility of Contracting States, the latter are responsible for violations of international law committed by PMSCs or their personnel where such violations are attributable to the Contracting State, in particular if they are:
(a) incorporated by the State into their regular armed forces in accordance with its domestic legislation;
143 Moyakine, supra note 125, page. 224. 144 Lehnardt, supra note 131, page. 143.
145 Montreux Document: “Contracting States” are States that directly contract for the services of PMSCs,
including, as appropriate, where such a PMSC subcontracts with another PMSC.
