Litigating abuses committed by private military companies

European Journal of International Law

Volumn 19, Issue 5, 2008, Pages 1035-1053

  Ryngaert, Cedric ^a,b  

^a UTRECHT UNIVERSITY   (Netherlands)

^b UNIVERSITY OF LEUVEN   (Belgium)

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[No Author keywords available]

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EID: 58149392478     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chn056     Document Type: Article

References (134)

1. Cockayne, 'Make or Buy? Principal - Agent Theory and the Regulation of Private Military Companies', in S. Chesterman and C. Lehnardt (eds), From Mercenaries to Market (2007), at 196, 213-216 (observing, inter alia, that 'the key factor in transforming PMC regulation may turn out to be litigation', that litigation is one of three major factors 'likely to drive regulatory harmonization in the coming years', and that 'proxy action by third parties may help make PMCs - and their state clients - socially responsible').
2. Centre Universitaire de Droit International Humanitaire (CUDIH), Expert Meeting on Private Military Contractors: Status and State Responsibility for Their Actions, Geneva, 29-30 Aug. 2005, at 58, available at: www.adh-geneve.ch/evenements/pdf/colloques/2005/ 2rapport_compagnies_privees.pdf.
3. E.g. Iraq, Coalition Provisional Order no. 17, available at: www.cpa-iraq.org/regulations/20040627_ CPAORD_17_Status_of_Coalition_Rev_with_Annex_A.pdf.
4. Stephens, 'Translating Filartiga: A Comparative and International Law Analysis of Domestic Legal Remedies for International Human Rights Violations', 27 Yale J Int'l L (2002) 1, at 12-14.
5. Clapham, 'Human Rights Obligations of Non-State Actors in Conflict Situations', 88 Int'l Rev Red Cross (2006) 491, at 519 (referring to the absence of criminal prosecutions).
6. E.g., Gillard, 'Business Goes to War: Private Military/Security Companies and International Humanitarian Law', 88 Int'l Rev Red Cross (2006) 525, at 527-528 (referring to a global enforcement vacuum, and the difficulties of bringing legal proceedings for violations of international humanitarian law committed by PMCs).
7. 28 USC §1350.
8. E.g., Londis, 'The Corporate Face of the Alien Tort Claims Act: How an Old Statute Mandates a New Understanding of Global Interdependence', 57 Maine L Rev (2005) 141.
9. A leading corporate ATCA case is the case brought against the US corporation Unocal in relation to its activities in Burma/Myanmar. Doe I v. Unocal Corp., 963 F Supp 880 (CD Cal. 1997)
10. National Coalition Government of the Union of Burma v. Unocal, 176 FRD 329 (CD Cal. 1997)
11. Doe v. Unocal Corp., 27 F Supp 2d 1174 (CD Cal. 1998), aff'd 248 F 3d 915 (2001)
12. Doe I v. Unocal Corp., 110 F Supp 2d 1294 (CD Cal. 2000)
13. Doe I v. Unocal Corp. 395 F 3d 3932 (9th Cir. 2002).
14. Dickinson, 'Contract as a Tool for Regulating Private Military Companies', in Chesterman and Lehnardt, supra note 1, at 217, 236
15. Mongelard, 'Corporate Civil Liability for Violations of International Humanitarian Law', 88 Int'l Rev Red Cross (2006) 665, at 688-689.
16. Saleh et al. v. Titan Corp., 353 F Supp. 2d 1087 (DDC 2004)
17. Ibrahim et al. v. Titan Corp., 391 F Supp. 2d 10 (DDC 2005).
18. Nordan v. Blackwater Security Consulting, LLC, 382 F Supp. 2d 801 (EDNC 2005)
19. Fisher v. Halliburton, 390 F Supp. 2d 610 (SD Tex. 2005)
20. Johnson v. Halliburton, No: EDCV05-265 (CD Cal., filed 29 Mar. 2005).
21. These cases were brought by PMC employees against their employer. It may be noted, however, that in the Saleh and Ibrahim cases, which related to violations of third parties' rights, the plaintiffs also filed common law claims (assault and battery, wrongful death and survival, intentional infliction of emotional distress, and negligence): Saleh et al. v. Titan Corp., Saleh et al. v. Titan Corp., Case 1:05-cv-01165-JR, DDC 11 June 2007, at 2.
22. After the court's dismissal of the ATCA-based claims, only the common law-based claims are still viable as we write. It is noted that, while ATCA claims can be brought by foreigners against other foreigners ('universal jurisdiction'), common law claims cannot: ibid., at 20 (holding that 28 USC §1332 'does not confer jurisdiction over suits by a group consisting of only foreign persons against another foreign person', in the case of CACI NV, incorporated in the Netherlands).
23. Under the US Supreme Court's standard of International Shoe Co v. Washington, 326 US 310, 315 (1945), minimum contacts of the defendant with the US suffice for personal jurisdiction to obtain.
24. E.g. Report of the Special Representative of the UN Secretary General (SRSG Report), J. Ruggie, to the UN Human Rights Council, on the issue of human rights and transnational corporations and other business enterprises, 9 Feb. 2007, A/HRC/4/035, at 14, para. 44 ('[i]t does not seem that the international human rights instruments... currently impose direct legal responsibilities on corporations').
25. This is explicitly stated in Art. 1 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (stating that '[f]or the purposes of this Convention, the term "torture" means any act... inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity') (emphasis added). See also the US Torture Convention Implementation Act, 18 USC §2340(1) ('"torture" means an act committed by a person acting under the color of law') (emphasis added).
26. Ibrahim et al. v. Titan Corp., 391 F Supp. 2d 10, 14 (DDC 2005)
27. ('the question is whether the law of nations applies to private actors like the defendants in the present case. The Supreme Court has not answered that question (Sosa v. Alvarez-Machain, 124 S Ct 2739, 2766, n. 20 (2004))
28. but in the DC Circuit the answer is no' - citing Tel-Oren v. Libyan Arab Republic, 726 F 2d 774, 791-795 (DC Cir. 1984)
29. Sanchez-Espinoza v. Reagan, 770 F 2d 202 (DC Cir. 1985)).
30. Saleh et al. v. Titan Corp. et al., 436 F Supp. 2d 55, 58 (DDC 2006) (holding that 'there is no middle ground between private action and government action, at least for purposes of the Alien Tort Statute').
31. SRSG Report, supra note 13, paras 19-32.
32. See also the ATCA cases of Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F Supp 2d 289, 305-306 (SDNY 2003)
33. Kadic v. Karadzic, 70 F 3d 232, 241-242 (2d Cir. 1995).
34. Singer, 'War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law', 42 Columbia J Transnat'l L (2003-2004) 521, at 536
35. Walker and Whyte, 'Contracting Out War?: Private Military Companies, Law and Regulation in the United Kingdom', 54 Int'l Comp LQ (2005) 651, at 687.
36. Saleh et al. v. Titan Corp. et al., 436 F Supp 2d 55, 59 (DDC 2006) ('plaintiffs have thrown together a number of claims that sound in negligence (knew or should have known, allowed employees to design illegal interrogation, failure to prevent or stop, etc.,...) or agency (CACI International "controlled" CACIPT and acquired it to meet its own strategic goals...), none of which, even if proven, would "pierce the corporate veil" so as to make the corporate parents of CACI-PT liable for the torts of CACI-PT').
37. Compare, in relation to violations of a duty of care by the military, Gaston, 'Mercenarism 2.0? The Rise of the Modern Private Security Industry and Its Implications for International Humanitarian Law Enforcement', 49 Harvard Int'l LJ (2008) 221, at 247.
38. Wouters and Ryngaert, 'Litigation for Overseas Corporate Human Rights Abuses in the European Union: The Challenge of Jurisdiction', forthcoming in George Washington Int'l L Rev (2008).
39. It should be noted, however, that courts may also resort to an analysis of the contract so as to limit, rather than expand, the liability of the PMC. In the Titan case, for instance, the District Court relied on the contract between the US Army and Titan ('Statement of Work'), in conjunction with the Army Field Manual, in order to ascertain whether Titan's interpreters were under the direct command and exclusive operational control of the military chain of command. As this was indeed the case. Titan was considered to enjoy government contract immunity, and Titan's motions for summary judgment were granted: Saleh et al. v. Titan Corp., Saleh et al. v. Titan Corp., Case 1:05-cv-01165-JR, DDC, 11 June 2007, at 10-21.
40. Also Dickinson, supra note 9, at 236 (submitting that enforcement of human rights values in litigation becomes more feasible through tort or contractual claims); Cockayne, supra note 1, at 207-208 (stating that 'voluntary norms are not "linked" to state enforcement power', and that 'many PMC codes of conduct... offer lip service to corporate social responsibility without teeth', but adding that they may get teeth when they 'incorporate existing control mechanisms', such as the Geneva Conventions).
41. It could be argued that the state hiring a PMC may incur responsibility under international law for the abuses committed by the PMC if the state fails in its due diligence obligations vis-à-vis the PMC. See also Droege, 'Private Military and Security Companies and Human Rights: a Rough Sketch of the Legal Framework', Swiss Initiative on PMCs/PSCs, Workshop in Kusnacht, 16-17 Jan. 2006.
42. Compare Singer, supra note 18, at 545 (arguing that a PMC's corporate social responsibility commitments are a means to respectability and market domination).
43. Ibid., at 536 (pointing out that 'few issues are more troublesome than an attempt by one state to exercise legal powers within another state's sovereign territory'); interview with Bearpark, 88 Int'l Rev Red Cross (2006) 449, at 455 (expressing concern over a home state 'legislating events that happen overseas').
44. E.g., Hays Parks, 'The Perspective of Contracting and "Headquarters" States', Swiss Initiative on PMCs/PSCs, Workshop in Kusnacht, supra note 24, at 7 (submitting that the exercise of jurisdiction by home or hiring states 'could have a potential negative effect on Iraqi reconstruction').
45. E.g., interview with Bearpark, supra note 26, at 454 (pointing out that the activities of PMCs may go against the wishes of the host state).
46. Christian Science Monitor, 18 Sept. 2007, available at: www.csmonitor.com/2007/0917/p99s01-duts.html.
47. BBC News, 5 Apr. 2008, available at: http://news.bbc.co.uk/2/hi/americas/ 7331972.stm. The Iraqi opposition cried foul, however, accusing the Iraqi Government of caving in to US pressure: ibid.
48. CPA Order 17, at para. 4 (stating that 'contractors shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contracts' without the permission of the sending state, with the sending state being defined in para. 1(5) of CPA Order 17).
49. Common Arts 49, 50, 129, and 146 of Geneva Conventions I, II, III, and IV. For war crimes other than grave breaches, the exercise of universal jurisdiction may be permissive and not obligatory. Art. 5.2 of the UN Torture Convention also requires states to exercise universal jurisdiction over presumed offenders if it does not extradite them, yet the scope of the Convention is limited to acts of torture committed by state agents (Art. 1). Contractors may not be characterized as state agents.
50. E.g. the United States: 18 USC §2441(b), which provides for US jurisdiction over war crimes only if the perpetrator or the victim is a member of the Armed Forces of the United States or a national of the United States.
51. CUDIH, supra note 2, at 46.
52. C. Ryngaert, Jurisdiction in International Law (2008), at 33.
53. Ibid., at 31.
54. E.g., the English Offences Against the Person Act 1861 s. 9, which provides for active personality jurisdiction over murder. The exercise of active personality jurisdiction may extend to less serious crimes, although in that case it will often be subject to the requirement of criminalization in both the state of nationality and the territorial state. E.g., Art. e 5, 1, 2° of the Dutch Criminal Code; Art. 7 of the Preliminary Title of the Belgian Code of Criminal Procedure.
55. Historically, US active personality jurisdiction applied to crimes which threatened the very existence of the fledgling nation, such as treason (Act for the Punishment of Certain Crimes Against the United States, ch. 9, of 30 Apr. 1790), the crime of engaging in diplomatic correspondence with foreign governments (Act of 30 Jan. 1799, ch. 1, 1 Stat 613, codified as amended at 18 USC §953 (1988) (Logan Act)), and, later, failure to register for military service (50 USC app. §453 (1982) (Military Selective Service Act of 1982) and trading with the enemy (50 USC app. §§ 1-39, 41-44 (1982) (Trading with the Enemy Act of 1917). In the 20th century, the range of offences subject to active personality jurisdiction was extended to 'international offenses', i.e. offences covered by an international treaty, such as hostage-taking (Hostage Taking Act of 1984, 18 USC §1203(b)(1)(A) (1988)), biological weapons terrorism (18 USCA §175 (West Supp. 1991)), torture (Torture Convention Implementation Act, 18 USC §2340), and war crimes (18 USC Section 2441(d)). Some common crimes were also made subject to active personality jurisdiction, e.g. 26 USC §78201 (1988) (tax evasion), 18 USC §1621 (1988) (perjury), 18 USC §793-794 (1988) (espionage), 18 USC §1082(a) (1982) (gambling).
56. Dutch Advisory Council on International Affairs, Employing Private Military Companies. A Question of Responsibility, advisory report no. 59, Dec. 2007, at 18-19, English version available at: www.aiv-advies. nl/ContentSuite/upload/aiv/doc/webversie_AIV_59eng(1).pdf.
57. Reaction of the Government to the Advisory Council's report, 25 Apr. 2008, at 11, available at: www. aivadvies.nl/ContentSuite/template/aiv/ adv/collection_single.asp?id1942&adv_id=2583&page=regeri ngsreacties&language=NL (English translation not yet available) (dismissing the Council's proposal to expand grounds for extraterritorial jurisdiction over civilian contractors).
58. The term 'war crime' is defined in 18 USC c 2441(c).
59. Gaston, supra note 20, 246 (highlighting, on the basis of an interview with an official involved in the Passaro case (infra note 44), the additional burden of proof in war crimes trials in relation to the nature of the conflict and the status of the victim, e.g. as a prisoner-of-war).
60. USC §7(9). The special maritime and territorial jurisdiction is defined as (A) the premises of United States diplomatic, consular, military, or other US Government missions or entities in foreign states, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and (B) residences in foreign states and the land appurtenant or ancillary thereto, irrespective of ownership, used for the purposes of those missions or entities or used by US personnel assigned to those missions or entities.
61. Passaro was sentenced to 100 months for the assault on a detainee in Afghanistan on one count of felony assault resulting in serious bodily harm, and six months on the three remaining counts of misdemeanour simple assault: United States v. Passaro, No. 5:04-CR-211-1 (filed EDNC, 17 June 2004), available at: http://charlotte.fbi.gov/dojpressrel/ 2007/ce021307.htm.
62. It may be noted that in many other states, jurisdiction will extend only over offences perpetrated by their own nationals: Gaston, supra note 20, at 240-241.
63. USC §§ 3261-3267 (2000).
64. USC §§ 801-946.
65. USC §3261.
66. USC §3267.
67. Gaston, supra note 20, at 247, 248 (observing that 'regulation may only reach those [PMCs] directly contracted by states', and instead proposing enhanced internal controls by PMCs).
68. USC §3267(1)(c) and (2)(c).
69. USC §3267(1) and (2).
70. An expansion of the scope of the MEJA was proposed by bill HR 369 (Price) - Transparency and Accountability in Military and Security Contracting Act of 2007. The bill covers contractors 'while employed under a contract (or subcontract at any tier) awarded by any department or agency of the United States, where the work under such contract is carried out in a region outside the United States in which the Armed Forces are conducting a contingency operation'.
71. See www.usdoj.gov/usao/vae/Pressreleases/05-MayPDFArchive/07/ 20070525khannr.html.
72. Isenberg, 'A Government in Search of Cover. Private Military Companies in Iraq', in Chesterman and Lehnardt (eds), supra note 1, at 82, 92.
73. Art. 2(a)(11) UCMJ.
74. To that effect, Art. 2(a)(10) UCMJ was amended by Section 552 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (PL 109-364) ('FY07 NDAA'). See for criticism of the previous limited scope of the MEJA Isenberg, supra note 55, at 93.
75. A 'contingency operation' is defined in 10 USC §101(a)(13) as 'an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force'.
76. Compare Reid v. Covert, 354 US 1 (1957) (holding that Art. 2(11) of the Uniform Code of Military Justice cannot constitutionally be applied, in capital cases, to the trial of civilian dependants accompanying members of the armed forces overseas in time of peace): Congressional Research Service (CRS), Report for Congress, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues, 11 July 2007, Order Code RL32419, at 21.
77. CUDIH, supra note 2, at 60
78. Droege, supra note 24, at 6 (with references to relevant case law in n. 14).
79. In favour of courts-martial jurisdiction over PMC abuses, however, is Peters, 'On Law, Wars, and Mercenaries: The Case for Courts-martial Jurisdiction over Civilian Contractor Misconduct in Iraq' [2006] Brigham Young U L Rev 367.
80. This panoply of statutes makes it rather unclear on what legal basis a prosecution for PMC abuses should best rest. See also Isenberg, supra note 55, at 88.
81. Walzer, 'Mercenary Impulse. Is There an Ethics that Justifies Blackwater?', The New Republic, 12 Mar. 2008
82. Cockayne, supra note 1, at 200.
83. The prosecution of Passaro, the PMC employee convicted of abuses in Afghanistan (supra note 40) was in fact possible only because 'the key Afghan witness was willing and able to travel to the United States, and other witnesses who could testify as to the body... were U.S. citizens who could be subpoenaed': Gaston, supra note 20, at 216, information obtained through an interview with an official involved in the Passaro prosecution.
84. E.g., the prosecution of the 'Butare Four' in Belgium for their participation in the Rwandan genocide: Reydams, 'Belgium's First Application of Universal Jurisdiction in the "Butare Four" Case', 1 J Int'l Criminal Justice (2003) 428. The prosecution of Rwandan criminals in Belgium was facilitated by the presence of Belgian military personnel in Rwanda at the time of the genocide, and in particular by the cooperation of the Rwandan government, which had overthrown the extremist Hutu regime held responsible for the 1994 atrocities. Rwandan cooperation was crucial for the prosecution of Rwandan criminals in Belgium in terms of field and cultural knowledge and the possibility of taking evidence in the witnesses' language. Rwandan police officers assisted Belgian judges and investigators under Rwandan procedure. Taking evidence in the original language limited subsequent challenges to the translation: Vandermeersch, 'Prosecuting International Crimes in Belgium', 3 J Int'l Criminal Justie (2005) 400, at 412-413.
85. See also the prosecution of Zardad for crimes of torture committed in Afghanistan by the Central Criminal Court London: R v. Zardad, 5 Oct. 2004. In the Zardad case, witnesses testified via live video-link from Afghanistan, a procedure which guaranteed the defendant's right to cross-examination. Zardad was also entitled to legal aid, which enabled his lawyer to supervise the prosecution's investigative work in Afghanistan: Human Rights Watch, Universal Jurisdiction in Europe: The State of the Art, xviii, No. 5(D), June 2006, at 100.
86. Compare CRS, supra note 59, at 17 (arguing that impunity for abuses committed by civilian contractors accompanying the US armed forces may arise, even though the US, as the hiring state, may have a duty to investigate and prosecute such abuses).
87. Singer, supra note 18, at 536
88. Walker and Whyte, supra note 18, at 661.
89. DOD Directive 2311.01E of 9 May 2006 (cancelling DOD Directive 5100.77), defining a reportable incident as any 'possible, suspected, or alleged violation of the law of war, for which there is credible information, or conduct during military operations other than war that would constitute a violation of the law of war if it occurred during an armed conflict'.
90. Isenberg, supra note 55, at 87 (citing the scandal at the US-run prison of Abu Ghraib, where at least 37 interrogators from PMCs worked). Under-monitoring may be caused or exacerbated by the existence of different principals of the PMC (e.g. the hiring state and its different entities, the territorial state, the PMC's home state...), who all have an incentive to allow some other principal to bear the transaction costs of monitoring and sanctions (i.e. the problem of free-riding): Cockayne, supra note 1, at 211-212.
91. Ibid., at 206.
92. Swiss Federal Department of Foreign Affairs, Expert Meeting of Governmental and Other Experts on Private Military and Security Companies, 13-14 Nov. 2006, Montreux, Switzerland, Chair's Summary, 22 July 2007, at 6. Singer, supra note 1, at 539 ('U.S. embassy officials in the contracting country are charged with general oversight, but no official actually has a dedicated responsibility to monitor the firms or their activities').
93. It has been noted, however, that the number of contracting officer's representatives has actually decreased over the last few years, even if the number of PMCs has exponentially risen: CRS, supra note 59, at 29. A recent bill has proposed that the FBI establish a 'Theater Investigative Unit' for each contingency operation in which covered contract personnel are working to investigate suspected misconduct. Additionally, the Department of Justice Inspector General should report to Congress within 30 days of enactment on the investigation of abuses alleged to have been committed by contract personnel: Bill HR 2740 (Price)-MEJA Expansion and Enforcement Act of 2007.
94. Cockayne, supra note 1, at 206.
95. Compare Gaston, supra note 20, arguing, at 237, that '[b]ecause they have fewer incentives to establish the same rigorous accountability and oversight measures that they use for their professional militaries and that may prevent many international humanitarian law violations', but at the same time proposing, at 243, 'an [international humanitarian law] principle requiring states that used nonstate actors as complements to military operations to establish oversight and control mechanisms that would ensure their compliance with international and domestic laws to the extent possible'.
96. The Standing Civilian Courts were created by the Armed Forces Act 1976 c. 52. Pursuant to s. 6(2)(3), '[i]f the court administration officer thinks it expedient in the interests of justice, he may, after consultation with the Judge Advocate General or his deputy, direct the court to sit at such place outside its area and outside the United Kingdom for such purpose and upon such terms, if any, as he thinks fit'. Also Standing Civilian Courts Order, 1997, UK SI No. 172; Standing Civilian Courts Order (Amendment), 1997, UK SI No. 1534.
97. Armed Forces Act 1976, s. 6(1), in conjunction with Army Act 1955, c. 18, s. 209(1).
98. It has been proposed to remedy this limitation, and to widen the Standing Civilian Courts' jurisdiction to include all PMCs' employees performing a military function: CUDIH, supra note 2, at 59.
99. Armed Forces Act 1976, s. 7.
100. Ibid., s. 8(1).
101. The average period between an offence being committed and the date of a trial in a subsequent Standing Civilian Court of the Army is 8 months for first hearing (a guilty plea) and 10 months for second hearing (not guilty plea). For Royal Air Force (RAF) Standing Civilian Courts, this is 6 months for first hearing and 9 months for second hearing: UK HC, Written AnswerW, 2 Feb 2000, Col: 592W, available at: www.parliament.the-stationery-office.co.uk/pa/cm199900/cmhansrd/vo000202/ text/00202w03.htm.
102. Supra sect. 3(c), in fine.
103. Supra sect. 3(b).
104. Deputy Secretary of Defense, 'Management of DOD Contractors and Contractor Personnel Accompanying U.S. Armed Forces in Contingency Operations Outside the United States', 25 Sept. 2007, available at: www.aschq.army.mil/gc/files/ DepSecDef%20Memo%20Mgt%20of%20Contractors%2025Sep07.pdf.
105. On such treaties with China see, e.g., G.W. Keeton, The Development of Extraterritoriality in China (1928). Extraterritoriality in China was abolished from 1930 onwards. On the legal consequences of the abolition see Wright, 'Some Legal Consequences if Extraterritoriality is Abolished in China', 24 AJIL (1930) 217.
106. In view of the poor record of US prosecutions of abuses committed by PMCs, or of US service-members for that matter, CPA Order 17, which was not revoked by the Iraqi Government and which immunizes contractors from suit in Iraqi courts, could arguably be qualified as such an order.
107. See the seminal case of Baker v. Carr, 369 US 186 (1962).
108. E.g. Sarei v. Rio Tinto PLC, 221 F Supp. 2d 1116, 1181-1182 (CD Cal. 2002).
109. Clausewitz indeed famously described war as 'the continuation of politics (Politik) by other means': C. von Clausewitz, On War (ed. and trans. M. Howard and P. Paret, 1993), Bk I, Chap. I, Sect. 24.
110. Ibrahim et al. v. Titan Corp., 391 F Supp 2d 10, 15 (DDC 2005) ('[a]n act for damages arising from the acts of private contractors and not seeking injunctive relief does not involve the courts in "overseeing the conduct of foreign policy or the use and disposition of military power"'), citing Luftig v. McNamara, 373 F 2d 664, 666 (DC Cir. 1967).
111. Ibrahim et al. v. Titan Corp., supra note 89, at 16.
112. Saleh et al. v. Titan Corp. 436 F Supp 2d 55, at 58 ('the more plaintiffs assert official complicity in the acts of which they complain, the closer they sail to the jurisdictional limitations of the political question doctrine').
113. Sect. 1.
114. USC §2680(j).
115. Koohi v. US, 976 F 2d 1328, at 1337 (9th Cir. 1992).
116. Boyle v. United Technologies Corporation, 487 US 500, at 507-513 (1992) (ruling that the court must determine whether the application of state tort law would produce a 'significant conflict' with federal policies or interests).
117. Ibid. (barring suit against a private corporation building helicopters for the US Marine which allegedly defectively designed the helicopter's co-pilot emergency escape-hatch system); Koohi, supra note 94 (barring suit against civilian makers of a weapons system used in an accidental shooting down of a civilian aircraft).
118. Dickinson, supra note 9, at 237.
119. Ibrahim et al. v. Titan et al., Civil Action No. 04-1248 (JR)
120. and Saleh et al. v. Titan et al. (Civil Action No. 05-1165), 11 June 2007, at 18-21.
121. Ibid., at 21.
122. Ibid., at 22.
123. In a slightly similar case, also involving allegations of violations of international humanitarian law and human rights law, the US Court of Appeals for the Second Circuit, applying the doctrine, has recently barred claims against producers of the defoliant Agent Orange, used by the US during the Vietnam War. In so doing, it reinforced the idea that the possible use of the contractor' products and services by the state in a manner inconsistent with international human rights or humanitarian law does not preclude application of the defence of government contractor immunity: In Re Agent Orange Prod. Liab. Litig., 05-1760 cv, 2nd Cir., 22 Feb. 2008, with the Court stating at 51 (slip op.): 'Considerations of the validity of [military] objectives and the reasons for which the military seeks them are far beyond the competence of this Court. Our determination as to the protection of a military contractor must be made using the same principles regardless of the nature of the military conflict in which they are pursued, or the extent to which it is controversial or enjoys popular support. 'The Second Circuit overturned the District Court's decision in In re Agent Orange Prod. Liab. Litig., 373 F Supp. 2d 7, at 85-90 (EDNY 2005), which held that the government contractor defence should apply to federal common law claims based on norms of international humanitarian law. Supporting the District Court's decision, however, is Dickinson, 'Tort Liability for Military Contractors', 7 Oct. 2007, available at: http://balkin.blogspot.com/2007/10/ tort-liability-for-military-contractors.html.
124. Art. 8 of the ILC Arts on Responsibility of States for Internationally Wrongful Acts (2001).
125. The liability of the employees who directly committed the abuses is of course less problematic: Clapham, supra note 5, at 518 ('[t]here is no need to formulate elaborate arguments about conspiracy and complicity in the present context; the individuals themselves may be accused of the direct commission of international crimes').
126. Art. 28 of the Statute of the International Criminal Court.
127. Compare Milanovic, 'An Odd Couple: Domestic Crimes and International Responsibility in the Special Tribunal for Lebanon', 5 J Int'l Criminal Justice (2007) 1139 (highlighting the potential problems posed by applying the international law doctrines of command responsibility and joint criminal enterprise to domestic crimes in the Special Tribunal for Lebanon).
128. Cockayne, 'The Global Reorganization of Legitimate Violence: Military Entrepreneurs and the Private Face of International Humanitarian Law', 88 Int'l Rev Red Cross (2006) 459, at 488.
129. It may suffice here to refer to Cockayne's observation that codification, by PMC stakeholders, of the relevant liability doctrines in a PMC context is required, lest the liability doctrines risk being 'skewed towards criminal justice perspectives': ibid., at 489.
130. Walker and Whyte, supra note 18, at 687 and 689.
131. Dickinson, supra note 9, at 237.
132. Robinson, 'Corporate Culture as a Basis for the Criminal Liability of Corporations', Feb. 2008, paper submitted within the mandate of the UN Special Representative of the Secretary-General on Business and Human Rights, available at: www.reports-and-materials.org/ Allens-Arthur-Robinson-Corporate-Culture-paper-for-Ruggie-Feb-2008.pdf (noting that Brazil, Bulgaria, Luxembourg, and Slovakia do not recognize criminal liability for corporations, and that Germany, Greece, Hungary, Mexico, and Sweden apply administrative instead of criminal penalties to corporate wrongdoing). This also explains, at least partly, why the International Criminal Court has jurisdiction over only natural persons (Art. 25.1 of the Rome Statute of the International Criminal Court).
133. I have discussed some advantages of tort vis-à-vis criminal human rights litigation elsewhere, so I have limited myself to giving a rough overview here: Ryngaert, 'Universal Jurisdiction over Gross Human Rights Violations', 38 Netherlands Ybk Int'l L (2007) 1, at sect. 2. It may be noted, in passing, that the less intrusive character of tort litigation may also stem from the fact that the involvement of the state is limited to a judge hearing tort claims in a fairly passive manner, whereas in criminal cases the state, personified by the public prosecutor, is a fully-fledged party to the case.
134. Ibrahim et al. v. Titan Corp., supra note 89, at 18.