Passing the buck: State responsibility for private military companies

European Journal of International Law

Volumn 19, Issue 5, 2008, Pages 989-1014

  Hoppe, Carsten ^a  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 58149377650     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chn074     Document Type: Article

References (167)

1. As regards HRL, this has to be qualified with respect to the extraterritorial applicability of the regional regimes: See part B 1 below.
2. For a detailed analysis see Hoppe, 'State Responsibility for Violations of International Humanitarian Law Committed by Individuals Providing Coercive Services under a Contract with a State', Hague Center for Studies (2008, forthcoming). Cf. Lehnardt, 'Private Military Companies and State Responsibility', in S. Chesterman and C. Lehnardt (eds), From Mercenaries to Market: The Rise and Regulation of Private Military Companies (2007), at 139
3. Spinedi, 'Private Contractors: Responsabilité internationale des entreprises on attribution à l'Etat de la conduite des personnes privées?', 7 FORUM du droit international (2005) 273
4. but see Wolfrum, 'State Responsibility for Private Actors: An Old Problem of Renewed Relevance', in M. Ragazzi (ed.), International Responsibility Today: Essays in Memory of Oscar Schachter (2005), at 423.
5. Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, in Report of the International Law Commission on the Work of its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at: www.un.org/law/ilc.; Annex to GA Res. 56/83 (12 Dec. 2001).
6. Hague Convention (IV) of 1907 respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, 3 Martens Nouveau Recueil (ser. 3) 461, 187 Consol TS 227.
7. Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1), 8 June 1977.
8. See Case concerning armed activities on the territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005 [2005] ICJ Rep 168, at para. 213.
9. Ibid., at para. 214.
10. See sect. C below.
11. Incorporation here refers to the formal granting of regular military ranks or special commissions to the contractor's personnel.
12. See Spinedi, supra note 2, at 276.
13. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 Feb. 2007, not yet reported, at para. 392.
14. Moreover, if the special rule of responsibility for the armed forces contained in Arts 3 HC IV and 91 AP I does not find application (see sect. 3 below), private acts of contractors who are considered organs of the state but not members of the armed forces will not be attributable.
15. See, e.g., Vines, 'Mercenaries, Human Rights and Legality', in A.-F. Musah (ed.), Mercenaries: An African Security Dilemma (2000), at 169 (discussing the now-defunct PMSC Executive Outcomes). Power dynamics are reversed where the PMSC begins to dictate the agenda in its relationship with a (weak) state, rather than vice versa.
16. See Lehnardt, supra note 2
17. Hoppe, supra note 2; but see the earlier discussion by Wolfrum,
18. supra note 2 (not exploring Art. 5 at all in relation to contractors in Iraq).
19. ILC Arts with commentaries, supra note 3.
20. Spinedi, supra note 2, at 277
21. see also Lehnardt and Hoppe,
22. both also supra note 2.
23. Cf. Lehnardt, supra note 2.
24. But see Wolfrum, supra note 2 (arguing that acts ultra vires but closely related to the task contractors were instructed or generally contracted to perform will also give rise to responsibility of the state under Art. 8).
25. Cf. Lehnardt, supra note 2.
26. Wolfrum, supra note 2, at 431-432, 434.
27. However, combat contractors may not easily be considered to be 'off duty' while they are still in the theatre of conflict.
28. For a detailed analysis see Hoppe, supra note 2.
29. 'The High Contracting Parties undertake to respect and to ensure respect for this [Convention or Protocol] in all circumstances': Art. 1 GCI-IV, Art. 1.1 API (hereinafter Common Art. 1).
30. University Centre for International Humanitarian Law (UCIHL), Geneva, Expert meeting on private military contractors: Status and state responsibility for their actions (2005), available at: www.adh-geneve.ch/evenements/pdf/colloques/2005/ 2rapport_compagnies_privees.pdf.
31. See Hoppe, supra note 2.
32. Art. 27 GCIV reads as follows: Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.... However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.
33. 'Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them': GC III, Art. 12. The remainder of the Art. specifies that prisoners of war cannot be transferred out of the power of the state party which captured them to anyone other than another state party.
34. Art. 39 GC III states: '[e]very prisoner of war camp shall be put under the immediate authority of a responsible commissioned officer belonging to the regular armed forces' (emphasis added).
35. Hague Convention (IV), supra note 4
36. see also Hoppe, supra note 2.
37. The study confines the rule to a duty of state to ensure respect for IHL by 'its armed forces, or groups acting in fact on its instructions, or under its direction or control': J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (2005), at 495-496 (Rule 139).
38. UCIHL meeting, supra note 25.
39. C. Droege, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (2003)
40. Dennis, 'The Non-application of Civil and Political Rights Treaties Extraterritorially during Times of International Armed Conflict', 40 Israel L Rev (2007) 453
41. Wilde, 'Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties', 40 Israel L Rev (2007) 503.
42. See Sergio Euben Lopez Burgos v. Uruguay, Communication No. R.12/ 52 (6 June 1979), UN Doc. Supp. No. 40 (A/36/40), at 176 (1981)
43. Lilian Celiberti de Casariego v. Uruguay, Communication No. R.13/ 56, UN Doc. Supp. No. 40 (A/36/40), at 185 (1981)
44. Mabel Pereira Montero v. Uruguay, Communication No. 106/1981, UN Doc. Supp. No. 40 (A/38/40), at 186 (1983)
45. Delia Saldias de Lopez v. Uruguay, Communication No. 52/1979 (29 July 1981), UN Doc. CCPR/C/OP/1, at 88 (1984) (holding that 'it would be unconscionable to so interpret the responsibility under article 2 of the covenant as to permit a state party to perpetrate violations of the covenant on the territory of another state, which violations it could not perpetrate on its own territory')
46. Human Rights Committee, General Comment 31, 'Nature of the General Legal Obligations Imposed on States Parties to the Covenant', UN Doc. CCPR/C/ 21/Rev.1/Add.13 (26 May 2004), para. 10 (protection extends to nationals and non-nationals alike who are in the power or under the effective control of the state party)
47. Human Rights Committee, 'Concluding Observations of the Human Rights Committee: Israel', UN Doc. CCPR/CO/78/ISR (21Aug. 2003), para. 11 (rejecting Israel's claim that the ICCPR did not apply to the Occupied Territories).
48. See, e.g., Dennis, supra note 32 (arguing that the position expressed in General Comment 31 is at odds with the intent of states expressed inter alia in the travaux préparatoires).
49. This approach has earlier roots in the 'passport cases': UNCHR, Nunez v. Uruguay, Communication No. 108/1981 1990 (1983)
50. UNCHR, Mabel Pereira Montero v. Uruguay, Communication No. 106/ 1981 (1983)
51. UNCHR, Sophie Vidal Martins v. Uruguay, Communication No. R.13/57 (1982).
52. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ 131 (July 9), at paras 108-111
53. Armed activities on the territory of the Congo, supra note 5, at para. 216 (finding Uganda in violation of its obligations, inter alia under the ICCPR, not only as an occupying power in the Ituri province, but also elsewhere).
54. Legal Consequences of the Construction of a Wall, supra note 36.
55. Armed activities on the territory of the Congo, supra note 6, at para. 220 (finding Uganda in violation of its obligations, inter alia under the ICCPR, not only as an occupying power in the Ituri province, but also elsewhere).
56. This form of jurisdiction is again fundamentally territorial, if possibly confined to a small area and time-frame.
57. American Declaration of the Rights and Duties of Man, OAS Res. XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1, at 17 (1992); American Convention on Human Rights, OASTreaty Series No. 36, 1144 UNTS 123.
58. Coard et al. v. United States, Case 10.951, Inter-Am. CHR, Report No. 109/99, at para. 39 (1999)(finding that being subject to a state's jurisdiction could 'refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another)
59. Alejandre v. Cuba, Case 11.589. Inter-Am. CHR, Report No. 86/99 (military pilots' capacity to shoot down civilian planes over international waters qualifies as exercise sufficient control).
60. See also Pertinent Parts of Decision on Request for Precautionary Measures, available at: www.photius.com/rogue_nations/ guantanamo.html#ftn1
61. Detainees in Guantanamo Bay, Cuba: Request for Precautionary Measures, Inter-Am. CHR (13 Mar. 2002), available at: www1.umn.edu/humanrts/undocs/ session36/12-52.htm.
62. Cassel, 'Extraterritorial Application of Inter-American Human Rights Instruments', in F. Coomans and M.T. Kamminga (eds), Extraterritorial Application of Human Rights Treaties (2004), at 178.
63. The preamble to the ACHR is limited to the 'hemisphere'. ACHR.
64. App. No. 15318/89, Loizidou v. Turkey (preliminary objections) (1995), ECtHR series A No. 310, at para. 62.
65. Bankovic v. Belgium, 2001-XII ECtHR 333, at para. 71(2001)(holding that the Convention would apply extraterritorially only when the state in question had 'effective control of the relevant territory' and 'exercised all or some of the public powers normally to be exercised by that government'.
66. Issa v. Turkey [2004] ECtHR 629, at para. 71 (holding that '[a]ccountability in such situations stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory').
67. Bankovic, supra note 46, at para. 80 (holding that the Convention was designed for a 'regional context and notably [to apply] in the legal space (espace juridique) of the Contracting States').
68. Issa v. Turkey, supra note 47, At paras 73-74 (extending the espace juridique of the Convention to northern Iraq, where Turkey exercised effective overall control).
69. The responsibility gap consisted in the off-duty conduct of combat or interrogation contractors and the ultra vires conduct of guarding and protection contractors not being attributable to the hiring state.
70. Alejandre v. Cuba, supra note 42.
71. See supra note 21.
72. Loizidou, supra note 45 (preliminary objections), at 62
73. Issa v. Turkey, supra note 47, at 69-70.
74. Where combat or guarding and protection contractors obtain access to persons in the power of their hiring state, the same logic applies.
75. App. No. 46221/99, Öcalan v. Turkey, Judgment of 12 May 2005, ECHR 2005-IV 131 (GC).
76. Issa v. Turkey, supra note 47.
77. International Covenant on Civil and Political Rights (ICCPR), GA Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16), at 52, UN Doc. A/6316 (1966), 999 UNTS 171, Art. 6.1.
78. Ibid., Art. 7.
79. Ibid., Art. 4.2.
80. General Comment No. 06: The right to life (Art. 6) (1982), UN Doc CCPR/C/ 21/Rev.1, at 4-6.
81. William Eduardo Delgado Páez v. Colombia, Communication No. 195/1985, UN Doc. CCPR/C/39/D/195/1985 (1990).
82. For further references see K. Wiesbrock, Internationaler Schutz der Menschenrechte vor Verletzungen durch Private (1999), at 137.
83. See the discussion of the ECHR below.
84. General Comment No. 31 [80], Nature of the General Legal Obligation Imposed on States Parties to the Covenant, (2004) UN Doc CCPR/C/21/Rev.1/ Add.13, at para. 7.
85. See General Comment No.07: Torture or cruel, inhuman or degrading treatment or punishment (Art. 7), (1982) UN Doc HRI/GEN/1/Rev.1, at 7.
86. General Comment No. 20: Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment (Art. 7), (1992), UN Doc HRI/GEN/1/Rev.1, at 30, paras 2, 10, and 13
87. see also General Comment No. 31, supra note 63, at para. 8
88. Ibid., at para. 17.
89. See also, e.g., Joaquín David Herrera Rubio et al. v. Colombia, Communication No. 161/1983, UN Doc. CCPR/C/OP/2, at 192 (1990)
90. Mr. Joseph Semey v. Spain, Communication No. 986/2001, UN Doc. CCPR/C/78/D/986/2001 (2003)
91. Mr. S. Jegatheeswara Sarma v. Sri Lanka, Communication No. 950/ 2000, UN Doc. CCPR/C/78/D/950/2000 (2003)
92. Karina Arutyunyan v. Uzbekistan, Communication No. 917/2000, UN Doc. CCPR/C/80/D/917/2000 (2004).
93. At a minimum the US exercises territorial control over the heavily guarded base areas such as the Green Zone in Baghdad, but also at different times controlled other areas of Iraq, even after the transfer of sovereignty. For example, the US officially returned 'security control' over the Anbar province of Iraq, including Falluja, to the Iraqi government only in September 2008. See Badkhen, 'Lines of control shift like sands in the desert', San Francisco Chronicle, 13 Nov. 2005, at A-1
94. Paley, 'Uncertainty after Anbar Handover', Washington Post, 2 Sept. 2008, at A10
95. see also Cerone, 'The Application of Regional Human Rights Law Beyond Regional Frontiers: The Inter-American Commission on Human Rights and US Activities in Iraq', ASIL Insight, available at: www.asil.org/ insights/2005/10/insights051025.html.
96. American Convention on Human Rights, supra note 41, Art. 1.1.
97. Ibid., Art. 2.
98. Ibid., Arts 4 and 5.
99. Velásquez Rodríguez Case, Judgment of 29 July 1988, Inter-Am Ct. HR (Ser. C) No. 4 (1988).
100. Godínez Cruz Case, Judgment of 20 Jan. 1989, Inter-Am. Ct. HR (Ser. C) No. 5 (1989), para. 182.
101. For the duty to investigate see Velásquez Rodríguez, supra note 71, at paras 176-177.
102. Ibid., at para. 175
103. Godínez Cruz, supra note 71, at para. 185 (employing identical language).
104. However, the language of Godínez Cruz, distinguishing prevention and response, leaves this possibility open: Ibid., at para. 182.
105. Juan Humberto Sánchez Case, Judgment of 7 June 2003, Inter-Am. Ct. HR, (Ser. C) No. 99 (2003), at para. 111.
106. Under the ECHR's Art. 15, states parties can derogate from the treaty in times of emergencies threatening the life of the nation 'to the extent strictly required by the exigencies of the situation'. Deaths resulting from lawful acts of war will then not constitute a violation of the Convention. If a state were to rely on the provision, the result would be that IHL would apply to the conflict at hand, whether international or non-international. So far, however, states have not relied on this provision.
107. See, e.g., X and Y v. Netherlands, 91 ECtHR (ser. A), at para. 23. (1985) (no possibility for a 16-year-old mentally handicapped person to bring a sexual abuse complaint).
108. E.g., App. No. 90/1997/874/1086, Assenov and Others v. Bulgaria, Judgment of 28 Oct. 1998, ECHR 1996-VIII 96, at para 102.
109. App. No. 9348/81, W. v. United Kingdom, Judgment of 28 Feb. 1983, 32 DR 190 (dealing with a case of domestic abuse not halted by the authorities).
110. McCann v. United Kingdom, 21 EHRR (1996) 97, at para. 213; the majority of 10 judges was faced with a dissenting opinion from 9 judges who disagreed as to the facts and cautioned against the use of hindsight in the assessment of the state's decisions: McCann, Joint Dissenting Opinion, at para. 8.
111. App. No. 86/1996/705/897, Andronicou and Constantinou v. Cyprus (86/1996/705/897), Judgment of 9 Oct. 1997, ECHR 1997-VI 52.
112. Ergi v. Turkey (66/1997/850/1057), Judgment of 28 July 1998
113. see also Droege, supra note 32, at 47-48
114. A. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (2004).
115. See supra note 54 and accompanying text.
116. McCann, supra note 81, at para. 213.
117. App. No. 23452/94, Osman v. UK, ECHR 1998-VIII 95.
118. Ibid., at para. 115.
119. Ibid., at para. 116.
120. Mahmut Kaya, ECHR Rep. 2000-III 149, at para 86
121. See also App. Nos. 22947/93 and 22948/93, Akkoc v. Turkey, Judgment of 10 Oct. 2000, 2000-X 389 (presenting a parallel finding with regard to the duty to prevent)
122. see also App. No. 22492/93, Kilic v. Turkey, Judgment of 28 Mar. 2000, 2000-III 75.
123. Kaya, supra note 89, at para. 85.
124. Ibid., at para. 85.
125. Ibid., at para. 100.
126. See Conforti, 'Reflections on State Responsibility for the Breach of Positive Obligations: The Case-law of the European Court of Human Rights', 13 Italian Ybk Int'l L (2003) 3.
127. In App. No. 37703/97, Mastromatteo v. Italy, ECHR 2002-VIII 151, a dangerous criminal had committed murder while on leave during his prison term. In its dictum, the Court elaborated that nothing had indicated to the authorities a 'need to take additional measures to ensure that, once released the two [criminals] did not present a danger to society', ibid., at para. 76 (emphasis added)
128. see also App. No. 34056/02, Gongadze v. Ukraine, Judgment of 8 Nov. 2005, at paras 164-171.
129. McCann, supra note 81.
130. Of course, this finding still has to be carefully limited to the situations where the Convention is applicable, as stated in the introduction to this article.
131. Gezici v. Turkey, No. 34594/97 (2005), at paras 49-54.
132. App. No. 100/1997/884/1096, A v. United Kingdom, Judgment of 23 Sept. 1998, ECHR 1998-VI 2692, at para. 22
133. see also App. No. 47095/99, Kalashnikov v. Russia, Judgment of 15 July 2002, ECHR 2002-VI
134. App. No. 44558/98, Valasinas v. Lithuania, Judgment of 24 July 2001, ECHR 2001-VIII.
135. Ibid., at paras 102-106.
136. See Kalashnikov, supra note 97
137. Valasinas, supra note 97, at para. 102.
138. See also Akkoc, supra note 88, at para. 118.
139. For theoretical and applied assessments of the concept of 'due diligence' see Pisillo-Mazzeschi, 'The Due Diligence Rule and the Nature of the International Responsibility of States', 35 German Ybk Int'l L (1992) 5
140. Dupuy, 'Due Diligence in the International Law of Liability', in OECD (ed.), Legal Aspects of Transfrontier Pollution (1977), at 369
141. Hessbruegge, 'The Historical Development of the Doctrines of Attribution and due Diligence in International Law', 36 NYU J Int'l L & Pol (2004) 265
142. R.P. Barnidge, Jr., Non-state Actors and Terrorism (2008).
143. HC IV, supra note 4
144. AP I, supra note 5.
145. See generally Freeman, 'Responsibility of States for Unlawful Acts of their Armed Forces', II RDC (1955) 267.
146. Ibid.
147. Armed activities on the territory of the Congo, supra note 7, at paras 214-220.
148. Ibid.
149. HC IV, supra note 4.
150. The New Oxford American Dictionary (2nd edn, 2005).
151. See Kalshoven, 'State Responsibility for Warlike Acts of the Armed Forces', 40 Int'l & Comp LQ (1991) 827, at 834.
152. API, Art. 91, supra note 5, and accompanying text.
153. See Department of Defense, Instruction No. 5525.11, Criminal Jurisdiction Over Civilians Employed By or Accompanying the Armed Forces Outside the United States, Certain Service Members, and Former Service Members, available at: www.js.pentagon.mil/whs/directives/corres/pdf/ 552511p.pdf, at 9-10.
154. In fact, the prevalence in the literature of qualifying the modern-day contractors I discuss here as 'armed contractors' already points to the fact that the unqualified term is usually used to refer to a person not armed for the purposes of conducting his or her business.
155. GC III Relative to the Treatment of Prisoners of War.
156. The New Oxford American Dictionary, supra note 106.
157. Ibid.
158. Sandline's contract with Papua New Guinea specified a 'Strike Force' of 70 people: Agreement for the Provision of Military Assistance Between the Independent State of Papua New Guinea and Sandline International dated 31 Jan. 1997, available at: www.c-r.org/our-work/accord/ png-bougainville/key-texts14.php.
159. For example, Blackwater operated personal motorcade protection in Iraq with security teams consisting of a 'Personal Security Detail' or PSD, and a Combat Assault Team (CAT). A common size for such teams seems to be 4 to 6 people each. Moreover, in general the teams seem to be rather coordinated, with some firms such as Blackwater even operating armed helicopters to support missions: G. Schumacher, A Bloody Business: America's War Zone Contractors and the Occupation of Iraq (2006), at 172.
160. The diary of a contractor employee working at Abu-Ghraib illustrates that contractors were operating in small teams of 2, conducted some interrogations completely independently, and were housed separately, albeit on the premises. See Diary of Joe Ryan, employee of CACI International at Abu-Ghraib, available at: www.sourcewatch.org/ index.php?title=Joe_Ryan_Abu_Ghraib_diary_April_2004.
161. Of course they will still be likely to qualify for the exercise of governmental authority or de facto organ status.
162. The New Oxford American Dictionary, supra note 106.
163. Taguba, 'Article 15-6 Investigation of The 800th Military Police Brigade (Secret/No Foreign Dissemination)' (The Taguba Report) (Washington, DC, Department of Defense, 2004).
164. L.F.L. Oppenheim, International Law - A Treatise (1905), at 90, discussing the factors (on the basis of the 1899 Convention) decisive for whether a unit would be afforded the 'privileges of belligerency'.
165. See, e.g., Schmitt, 'War, International Law and Sovereignty: Reevaluating the Rules of the Game in a New Century - Humanitarian Law and Direct Participation in Hostilities by Military Contractors or Civilian Employees', 5 Chicago J Int'l L 511, at 523ff
166. Cameron, 'Private Military Companies: Their Status under International Humanitarian Law and its Impact on their Regulation', 88 Int'l Rev of the Red Cross (2005) No. 863, at 585 (focusing on combatant status but noting that the intent of a state to outsource in itself would render it illogical to consider the unit so hired as a paramilitary force).
167. See Swiss Federal Council, Official records of the Diplomatic conference on the reaffirmation and development of international humanitarian law applicable in armed conflicts, Geneva, 1974-1977 (1978), Vol. XV, at 414, CDDH/236/Rev.1; XV, Report on the Articles adopted by the Committee 390, CDDH/236/Rev.1; Vol XIV, at 294, CDDH/III/SR.30; Vol XIV, at 296, CDDH/III/SR.30; Vol XIV, at 297, CDDH/III/SR.30; Vol XIV, at 296, CDDH/ III/SR.30; Vol XIV, at 297, CDDH/III/SR.30; but see Vol. VI, at 116, CDDH/SR.39.