Excerpt
TABLE OF CONTENTS
I. INTRODUCTION
II. THE PMC INDUSTRY
1. Introduction
2. Categorisation of the industry
(a) Military provider firms
(b) Military consulting firms
(c) Military support firms
3. The impact of the industry
(a) The quantitative impact
(b) The qualitative impact
4. Are PMCs and/or their employees mercenaries?
(a) PMCs and their employees are not effectively covered by existing international anti-mercenary laws
(b) PMCs differ significantly from traditional mercenaries
(c) Summary
III. STATE RESPONSIBILITY
1. General rules of state responsibility
2. Categorisation of states
3. Breach of international obligation
(a) Law on the recourse of force (jus ad bellum)
(i) The prohibition on the use of force
(ii) The principle of non-intervention
(b) Laws of neutrality
(c) International humanitarian law (jus in bello)
(i) Introduction
(ii) Obligations of the occupying power
(iii) Obligations in connection with prisoners of war
(iv) Obligations in connection with the principle of distinction
(d) Other obligations
(i) International humanitarian law
(ii) International human rights law
(ii) Arms restriction and arms embargos
(iii) Principle of permanent sovereignty over natural resources
(iv) Mercenary laws
4. Where PMC conduct is attributable to a state
(a) Introduction
(b) Article 4 DASR ‘state organ’
(c) Article 5 DASR ‘authorized by the law … to exercise governmental authority’
(d) Article 6 DASR ‘organ placed at the disposal of a State by another State’
(e) Article 8 DASR ‘instruction or direction and control’
(f) Conduct ultra vires
5. Where PMC conduct is not attributable to a state
(a) Introduction to the concept of due diligence
(b) Due diligence and international human rights law
(c) Due diligence and international humanitarian law
6. Preliminary summary
IV. INTERNATIONAL ORGANISATIONS’ RESPONSIBILITY
1. Introduction: international organisations and their present and potential future use of PMCs
2. Preliminary remarks on the responsibility of international organisations for the commission of international delicts
3. General rules of international organisation’s responsibility
4. Breach of international obligation
(a) The capacity to bear international obligations: are international organisations vested with objective legal personality?
(b) Conduct ultra vires the competences of the international organisation
(c) International humanitarian law
(i) The applicability ratione personae
(ii) Applicability ratione materiae in situations of armed conflict
5. Where the PMC conduct is attributable to the international organisation
6. Where the PMC conduct is not attributable to the international organisation
7. Preliminary summary
V. CONCLUSION
1. Responsibility of states
2. Responsibility of international organisations
APPENDIX I – ABBREVIATIONS
APPENDIX II – FURTHER INFORMATION ON PMCS
I. Military provider firms
1. Executive Outcomes
2. Sandline
3. Blackwater USA
II. Military consultant firms
1. Military Professional Resources Incorporated (MPRI)
2. Vinnell
3. DynCorp International, LLC
III. Military support firms
1. KBR (formerly BRS)
2. Ronco
IV. The contracting officer in the US Forces
BIBLIOGRAPHY
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 the ongoing privatisation[3] 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 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 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.
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 responsibility[18] 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 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 due- diligence 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 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]
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. Categorisation of the industry
[39]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 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 … 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] Sandline[54] 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- term one.[58] Examples of PMCs specialising as military consulting firms include Military Professional Resources Incorporated (MPRI),[59] Vinnell[60] 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]
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 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 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-of- command.[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 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 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 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 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, 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]
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.
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.
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 problems[131] 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 ‘…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 Assembly[140] and even the Security Council[141] 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 self- determination.[145]
(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 anti- mercenary laws.[151]
- 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 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 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.
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 self- defence and the use of force authorized by the Security Council of the United Nations (UN).[170]
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.’
[...]
[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 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.
[8] See UK Green Paper (n 2) at p 10, para 22.
[9] 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 “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 891- 914 for more details regarding the privatisation of punishment, police and military force.
[18] Home State, Host State, Contracting State and other states.
[19] 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 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.
[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, drug- trafficking, 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: 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.
[43] See below and Appendix II of this paper for details and examples.
[44] 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.
[50] Singer, PMF-study (n 1) at p 92; id, Corporate Warriors (n 13) at p 201.
[51] 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.
[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.
[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.
[76] Singer, PMF-study (n 1) at p 15.
[77] 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.
[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.
[94] Weiner (n 71) at pp 3-4.
[95] 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 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.
[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
[114] Singer, PMF-study (n 1) at pp 40-48.
[115] 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.
[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: 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.
[129] See UK Green Paper (n 2) paras 9, 10, 22, 29 with examples.
[130] 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 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.
[146] Singer, PMF-study (n 1) at p 45.
[147] 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.
[152] Singer, PMF-study (n 1) at p 46.
[153] 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.’
[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.
[161] Wallace (n 156) at p 176; Schröder (n 156) at p 542; art 2 DARS (n 156).
[162] 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.
[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 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.
- Quote paper
- LL.M. Frank Heemann (Author), 2006, Privatising the military use of force, Munich, GRIN Verlag, https://www.grin.com/document/124464
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