Criminal and Civil Liability under IHL.

PRIVATE MILITARY AND SECURITY COMPANIES (PMSCS)

INTRODUCTION

• What are PMSCs?

• PMSCs under Int’l Humanitarian Law.

• The Montreux Document.

• Criminal liability under IHL.

• Civil liability of PMSCs.

• Recommendations/Suggestions

• Questions.

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WHAT ARE PMSCS?

• No precise definition under IHL yet.

• Montreux Document: “PMSCs are private business

entities that provide military and/or security services,

irrespective of how they describe themselves.”

• EXAMPLES:

• Executive Outcomes in the Angolan War;

• Blackwater (now Academi) in the Iraq War.

• G4S Government Solutions for the UN and NATO

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PMSCS UNDER IHL: LEGALITY

• Initially thought as mercenaries who are

illegal under IHL. Offered no protection

(Art. 47 of AP1) Outlawed under UN Int’l

Convention against Recruitment, Use,

Financing & Training of Mercenaries.

• But do they reach the standard set

under Art. 47?

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PMSCS UNDER IHL: STATUS

• Determined on a case-by-case basis.

(Combatant/civilian)

• Civilians: If not directly participating in

hostilities (Art. 51(3) AP1). Not to be

targeted and have protection under GC4

• Combatants: Will receive protection of

GC1,2 or 3. Has PoW status when captured,

liable for violations of IHL.

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THE MONTREUX DOCUMENT.

• Non-binding, sponsored by 17 States. (Now

at 49 States and 3 Int’l Organizations)

• Reaffirms legal principles applicable, that

States are obligated to abide by.

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CRIMINAL LIABILITY UNDER IHL

• States are responsible for acts of private

firms/individuals used by the armed forces to

accomplish tasks that are typically for the armed

forces e.g. PMSCs

• Attributability: ILC Articles on Responsibility of States

for Internationally Wrongful Acts.

• Art. 8 Acting under instruction, direction/control

of State

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CRIMINAL LIABILITY

• Grave breaches: willful killing, torture or

inhuman treatment, including biological

experiments, willfully causing great suffering

or serious injury to body or health (War

crimes)

• National jurisdiction: as recommended by

Montreux Document.

• Articles 6, 7, 8 of Rome Statute: may be

prosecuted.

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CIVIL LIABILITY UNDER INTERNATIONAL LAW

• The body corporate itself.

The Krupp Trial and I.G Farben case at the

Nuremberg Military Tribunals.

• Vicarious liability: responsible for the acts of one’s

employees.

Al-Shimari v CACI International: 4 Iraqi civilians,

tortured while at Abu Ghraib.

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CIVIL LIABILITY CONTD.

• Reparations: “A belligerent party which violates the

provisions...shall, be liable to pay compensation, be

responsible for all acts committed by armed forces.” –

Art. 3 Hague Convention IV of 1907

Art. 34 of Articles on State Responsibility

• Restitution – Restore previous conditions.

• Compensation, for any financially assessable

damage

• Satisfaction: includes formal apology,

acknowledgement of breach, expression of regret.

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RECOMMENDATIONS

• Company responsibility:

• Stringent vetting of personnel

• Proper training, reevaluation of staff on IHL

• Internal disciplinary procedure.

• Standard operating procedure, within

confines of IHL.

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RECOMMENDATIONS.

• Contracting State:

• Must not contract for purposes explicitly assigned

to armed forces

• Incorporation of code of conduct (e.g. ICoC) into

procurement policy.

• Measures to suppress violations: judicial,

administrative or military regulations.

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RECOMMENDATIONS.

• Territorial State:

• Disseminate IHL

• Measures to suppress violations: judicial,

administrative or military regulations.

• Limited to areas where control is exercised

(if occupied territory).

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RECOMMENDATIONS

• Self-regulation?

There’s an ardent push for it, but given gravity of

armed conflict, this is not a mere corporate

situation.

• British Association of Private Security Companies

(BAPSC)

• International Stability Operations Association

(ISOA)

The International Code of Conduct for Private

Security Providers (ICoC) – acts supplementary to

Montreux Document.

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QUESTIONS.

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