Business goes to war: Private military/security companies and international humanitarian law

International Review of the Red Cross

Volumn 88, Issue 863, 2006, Pages 525-572

  Gillard, Emanuela Chiara ^a  

^a NONE

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EID: 70349154229     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383107000768     Document Type: Article

References (194)

1. It is notoriously difficult to obtain accurate and reliable figures of the number of PMCs/PSCs, or their employees, operating in Iraq. The United States Government Accountability Office's 2005 report to Congress on the use of private security provides in Iraq, quotes a Department of Defense assessment of at least 60 companies with “perhaps as many as 25,000 employees”. The Government Accountability Office's 2006 report refers to the Director of the Private Security Company Association of Iraq's estimate that “approximately 181 private security companies were working in Iraq with just over 48,000 employees.” Rebuilding Iraq: Actions Needed to Improve Use of Private Security Providers, United States Government Accountability Office, Report to Congressional Committees (hereinafter 2005 United States Government Accountability Office Report), July 2005, GAO-05–737, p. 8
2. Rebuilding Iraq: Actions Still Needed to Improve Use of Private Security Providers, United States Government Accountability Office, Testimony before the Subcommittee on National Security, Emerging Threats, and International Relations, Committee on Government Reform, 13 June 2006, GAO-06–865T, p. 2, respectively.
3. A United States Department of Defense census of contractors in Iraq, covering United States, Iraqi and third country nationals (but not subcontractors) working for the United States government in Iraq, came to the significantly higher figure of 100,000. Renae Marie, “Census counts 100,000 contractors in Iraq”, Washington Post, 5 December 2006.
4. See e.g., Deborah Avant, The Market for Force: The Consequences of Privatizing Security, 2005, pp. 30 et seq
5. Caroline Holmqvist, Private Security Companies: The Case for Regulation, SIPRI Policy Paper No. 9, January 2005, pp. 1 et seq
6. Fred Schreier and Marina Caparini, Privatising Security: Law, Practice and Governance of Private Military and Security Companies, Geneva Centre for the Democratic Control of Armed Forces Occasional Paper No. 6, March 2005
7. Joanna Spear, Market Forces: The Political Economy of Market Forces, FAFO Report 531, 2006, pp. 11 et seq.
8. On the question of regulation of the industry see, inter alia, Holmqvist, above note 2; Kathleen Jennings, Armed Services: Regulating the Private Military Industry, FAFO Report 532, 2006 and Schreier and Caparini, above note 2.
9. On this dimension of the phenomenon see Avant, above note 2 and Anna Leander, Eroding State Authority? Private Military Companies and the Legitimate Use of Force, 2006.
10. The above-mentioned 2005 United States Government Accountability Office Report found, inter alia, that despite the significant role played by private security providers in enabling reconstruction efforts in Iraq to take place, neither the Department of State, nor the Department of Defense, nor the US Agency for International Development had complete data on the costs of using the private sector. 2005 United States Government Accountability Office Report, above note 1, pp. 29 et seq.
11. On the impact of PMCs/PSCs on civil/military relations, see e.g., Sami Makki, Militarisation de l'humanitaire, privatisation du militaire, Cahier d'Etudes Stratégiques No. 36–37, CIRPES, June 2004.
12. On the use of private security services by humanitarian organizations, see e.g., James Cockayne, Commercial Security in Humanitarian and Post-Conflict Settings: An Exploratory Study, International Peace Academy, March 2006.
13. See e.g., Peter Singer, “War, profits and the vacuum of law: Privatized military firms and international law”, Columbia Journal of Transnational Law, No. 42, 2004, p. 521
14. Clive Walker and Dave Whyte, “Contracting out war? Private military companies, law and regulation in the United Kingdom”, International and Comparative Law Quarterly, No. 54, 2005, p. 651 at p. 687
15. most recently, “CICR: les mercenaires permettent aux etats de contourner la loi”, Tribune de Genève, 20 October 2006.
16. The United States' International Traffic in Arms Regulations (ITAR), which implement the 1968 Arms Export Control Act, are one of the few examples of national export legislation that address the provision of some military/security services abroad. They require US companies offering defense services, including training to foreign states, to register and obtain a license from the US State Department. See Schreier and Caparini, above note 2, pp. 105 et seq.
17. At present only Iraq and Sierra Leone have legislation specifically regulating the provision of military/ security services in their territory. Iraq's law was adopted by the Coalition Provisional Authority in 2004 and is currently being amended (CPA Memorandum 17: Registration Requirements for Private Security Companies, 26 June 2004).
18. Sierra Leone's regulations are found in Section 19 of the 2002 National Security and Central Intelligence Act.
19. On this topic see the Report of the Expert Meeting on Private Military Contractors: Status and State Responsibility for their Actions, organized by the University Centre for International Humanitarian Law, Geneva, 29–30 August 2005. Available at: http://www.ucihl.org/ communication/private_military_ contractors_report.pdf.
20. On the human rights dimension see e.g., Cordula Droege, “Private military and security companies and human rights: A rough sketch of the legal framework”, background document prepared for the Governmental Expert Workshop of 16–17 January 2006, organized by the Swiss Federal Ministry of Foreign Affairs, available at http://www.eda.admin.ch/psc
21. Francoise Hampson, “The implications of human rights law”, background document prepared for the Governmental Expert Workshop of 13- 14 November 2006 organized by the Swiss Federal Ministry of Foreign Affairs, available at http:// www.eda.admin.ch/psc
22. Alexis Kontos, “Private security guards: Privatized force and state responsibility under international human rights law”, Non-State Actors and International Law, Vol. 4, No. 3, 2004, p. 199.
23. Singer's classification of companies is based on the military “tip of the spear” metaphor in “battle space”, where the tip represents the front line. He classifies companies in three groups according to the services provided and the level of force they are willing to use: military provider firms, military consultant firms and military support firms. The first type of companies provide services at the front line; the second type provide principally advisory and training services; while the third are used for the provision of “non-lethal aid and assistance”, including logistic functions such as feeding and housing troops. Peter Singer, Corporate Warriors: The Rise of the Privatized Military Industry, 2003, pp. 91 et seq.
24. Cockayne, for example, speaks of “commercial security providers”
25. while Avant and Holmqvist use the term “private security company”.
26. Holmqvist, above note 2, p. 5.
27. For an outline of the range of services performed by the industry, see Avant, above note 2, pp. 7–22
28. Schreier and Caparini, above note 2, pp. 14–42.
29. On the issue of unprivileged belligerents, see e.g., Knut Dörmann, “The legal situation of “unlawful/ unprivileged combatants””, International Review of the Red Cross, Vol. 85, No. 849, March 2003, p. 45.
30. Additional Protocol I, Article 50(1).
31. Third Geneva Convention, Article 4A(1).
32. Third Geneva Convention, Article 4A(2). The two other categories of combatants listed in Article 4A(3) and (6) of the Third Geneva Convention are members of regular armed forces who profess allegiance to a government or authority not recognized by the Detaining Power and participants in a levée en masse respectively.
33. On this issue, see e.g., Ricou Heaton, “Civilians at war: Re-examining the status of civilians accompanying the armed forces”, Air Force Law Review, No. 57 (2005), p. 155 at pp. 168 et seq
34. Rebecca Rafferty Vernon, “The future of competitive sourcing: Battlefield contractors - facing the tough tests”, Public Contract Law Journal, No. 33 (2004), p. 369 at pp. 404 et seq
35. Michael Schmitt, “Humanitarian law and direct participation in hostilities by private contractors or civilian employees”, Chicago Journal of International Law, No. 5 (2005), p. 511 at pp. 523 et seq.
36. The possibility exists that a company may be hired by one state to perform operations on behalf of a second state. There have been instances when donor governments have hired a company to assist a second state in security sector reform, for example. However, such an arrangement is unlikely to be made for activities close to the heart of military operations. See e.g., Adedeji Ebo, The Challenges and Opportunities of Security Sector Reform in Post-Conflict Liberia, Geneva Centre for the Democratic Control of Armed Forces Occasional Paper No. 9, December 2005
37. Francesco Mancini, In Good Company? The Role of Business in Security Sector Reform, 2005.
38. Statement by a representative of a UK company to the author. The percentage of government contracts concluded by US companies is higher. See e.g., Dominick Donald, After the Bubble: British Private Security Companies after Iraq, The Royal United Services Institute, Whitehall Paper 66, 2006.
39. Some commentators are of the view that, despite the apparently clear wording of Article 4(A)1 of the Third Geneva Convention, it is not just members of “other militias” and “volunteers corps” who have to meet the four conditions listed in Article 4(A)2, but also members of a state's armed forces. See e.g., George Aldrich, “The Taliban, al Qaeda, and the determination of illegal combatants”, American Journal of International Law, Vol. 96, 2002, p. 895
40. Yoram Dinstein, “Unlawful combatancy”, Israel Yearbook of Human Rights, Vol. 32, 2002, p. 247 at p. 255. This debate is beyond the scope of the present article.
41. According to the Commentary on the Third Geneva Convention, this provision relates to groups that “although part of the armed forces were quite distinct from the army as such.” The Commentary adds that although “strictly speaking not essential” as members of such groups would already fall within the expression “members of the armed forces”, the reference to militias and volunteer groups was retained nonetheless. Jean Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, Vol. III, Geneva Convention relative to the Treatment of Prisoners of War (hereinafter Commentary: Third Geneva Convention), ICRC, 1960, p. 52.
42. Schmitt, above note 23, p. 525.
43. Third Geneva Convention, Article 5.
44. A conclusion shared by Schmitt, above note 23, p. 526.
45. Commentary: Third Geneva Convention, above note 27, pp. 52 et seq. The provision is based on Article 1 of the 1907 Hague Regulations, but its scope of application is expanded to cover militia that are independent of the armed forces.
46. Commentary: Third Geneva Convention, p. 57.
47. ICTY, Appeals Chamber, The Prosecutor v. Dusko Tadic, (IT-94–1), Judgment of 15 July 1999, paras. 93–94.
48. Schmitt suggests that PMCs/PSCs hired by a private entity to support one side to the conflict might also qualify but also adds that this is a “fairly far-fetched scenario”. Schmitt, above note 23, p. 528.
49. See e.g., “Contractor Personnel Authorized to Accompany the U.S. Armed Forces”, United States Department of Defense Instruction Number 3020.41, 3 October 2005, para. 6.1.5
50. “Guidance for Determining Workforce Mix”, US Department of Defense Instruction Number 1100.22, 7 September 2006.
51. Commentary: Third Geneva Convention, above note 27, p. 59.
52. Schmitt, above note 23, p. 529.
53. It is also extremely difficult to distinguish clearly between employees of different companies; this makes it virtually impossible for civilians affected by their activities to file complaints. See e.g., “PMSCs in post-conflict situations: A view from the local population in Angola and Afghanistan”, presented by the non-governmental organization Swisspeace at the Governmental Expert Workshop of 13–14 November 2006 organized by the Swiss Federal Ministry of Foreign Affairs.
54. See Ilham Nassir Ibrahim et al. v. Titan Corporation et al, 391 F. Supp. 10 D.D.C. (2005)
55. Saleh et al. v. Titan Corporation et al., 436 F. Supp. 2d 55 D.D.C. (2006).
56. Schmitt also shares this view, above note 23, p. 531, as did one of the experts at the mentioned Expert Meeting of August 2005.
57. Report of the Expert Meeting on Private Military Contractors, above note 12, p. 10.
58. Principally Articles 43 and 44 of Additional Protocol I.
59. The Commentary merely notes that “[t]he list is given by way of indication, however, and the text could (…) cover other categories of persons or services who might be called upon, in similar conditions, to follow the armed forces during any future conflict”; Commentary: Third Geneva Convention, above note 27, p. 64.
60. Similarly, the question of what categories of persons could fall within this provision was only discussed in very general terms during the negotiations. A British suggestion had called for elimination of the listing of persons covered. See the proposed amendment to Article 3 dated 26 April 1949, reproduced as Annex No. 90 relating to the Prisoners of War Convention, in Final Record of the Diplomatic Conference of Geneva of 1949, Vol. 3, Federal Political Department, Berne, 1949, pp. 60–61.
61. On these discussions see Howard Levie, Prisoners of War in International Armed Conflict, Naval War College International Law Studies, Vol. 59, 1978, p. 62.
62. Commentary: Third Geneva Convention, above note 27, pp. 64 et seq.
63. During the earlier stages of the negotiations, possession of the card had been a requirement. See e.g., Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, ICRC, Geneva, 1947, p. 113. This reflected the position under Article the 1907 Hague Regulations, which made entitlement to prisoner-of-war status dependent on possession of such certification.
64. Report of the Expert Meeting on Private Military Contractors, above note 12, p. 14.
65. Report of the Expert Meeting on Private Military Contractors, p. 15.
66. Additional Protocol I, Article 50(1).
67. See e.g., Knut Ipsen, “Combatants and Non-combatants”, in Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, 1995, para. 317.
68. See also Report of the Expert Meeting on Private Military Contractors, above note 12, p. 14
69. Heaton, above note 23, p. 174
70. Rafferty Vernon, above note 23, p. 406.
71. The inclusion of this category of persons in Article 4A(4), who are in fact likely to be taking direct part in hostilities, has led one commentator to suggest that “the Third Geneva Convention has implicitly granted civilian members of military aircraft the status of lawful combatants in so far as they remain on board the aircraft.” Allan Rosas, The Legal Status of Prisoners of War - A Study in International Humanitarian Law Applicable in Armed Conflicts, 1976, p. 310.
72. See Report of the Expert Meeting on Private Military Contractors, above note 12, p. 14, and Ipsen, above note 50.
73. See for example, the UK Military Manual, which states that: “Armed forces increasingly rely on the technical and administrative support of civilians. Civilians who are authorized to accompany the armed forces in the field in such capacities remain non-combatants, though entitled to prisoner of war status, so long as they take no direct part in hostilities. They may not be directly attacked. However, they share the dangers of war of the members of the armed forces they support. They should not wear military uniform and must carry a special identity card confirming their status. The law is silent on the question of whether such civilians may be issued with weapons. To ensure retention of non-combatant status, they should be issued with small arms for self-defence purposes only. It should be borne in mind that, if they carry arms, they are likely to be mistaken for combatants. It follows that, so far as possible, such civilians should not be deployed to places where they are liable to come under enemy fire or to be captured.” (Emphasis added.) (The Manual of the Law of Armed Conflict, UK Ministry of Defence, 2004, para. 4.3.7.)
74. See e.g., US Department of Defense Instruction No. 1100.22, above note 35, at footnote 19.
75. Additional Protocol I, Article 44(6).
76. See Report of the Expert Meeting on Private Military Contractors, above note 12, p. 14.
77. Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (hereinafter Commentary: Additional Protocols), 1987, para. 1942.
78. In relation to non-international armed conflicts, the Commentary describes the concept of taking direct part in hostilities as implying “a sufficient causal relationship between the act of participation and its immediate consequences.” Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para. 4787.
79. In an effort to address the challenging issues raised by the concept of “direct participation in hostilities” the ICRC, in cooperation with the TMC Asser Institute, initiated a process aimed at clarifying this notion. In the framework of this process, four informal Expert Meetings entitled “Direct Participation in Hostilities under International Humanitarian Law” have been held in The Hague (2 June 2003 and 25–26 October 2004) and Geneva (23–25 October 2005 and 27–28 November 2006), which brought together around 40 legal experts representing military, governmental and academic circles, as well as international and non-governmental organizations. The reports of the first three meetings held to date are available at http://www.icrc.org/web/eng/siteeng0.nsf/html/participation-hostilities-ihl-311205.
80. See e.g., Article 49(1) of Additional Protocol I, which states that ““ [a]ttacks” means acts of violence against the adversary, whether in offense or in defense.”
81. This is recognized for, example, in the aforementioned US Department of Defense instruction on contractors, which states, inter alia, that “contractor personnel may be at risk of injury or death incidental to enemy actions while supporting other military operations.” US Department of Defense Instruction No. 3020.41, above note 35, para. 6.1.1.
82. First Geneva Convention, Article 49, Second Geneva Convention, Article 50, Third Geneva Convention Article 129, Fourth Geneva Convention, Article 146, and Additional Protocol I, Article 85. The jurisprudence of international tribunals supports the position adopted by certain military manuals, as well as the text of the aforesaid treaty provisions, that it is not only commanders and superiors within a military structure who may be held responsible for serious violations of international law they have ordered to be committed. Anyone in a superior/subordinate position that enables him/her to issue orders can similarly be criminally responsible. For practice in this area, see Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1: Rules, 2005, Rule 152
83. supporting practice in Vol. II: Practice, Part 2, pp. 3713–3714.
84. For a review of the approach adopted by various states, see Henckaerts and Doswald-Beck, Practice, Vol. I: Rules, Ch. 44, and Vol. II: Practice, Part 2, pp. 3883–3884.
85. The possibility was discussed during negotiations on the Statute of the International Criminal Court but ultimately not adopted. See Andrew Clapham, Human Rights Obligations of Non-State Actors, 2006, pp. 244 et seq.
86. To date there has been one prosecution of three PMC/PSC employees for hostage-taking and torture committed while they were running an unauthorized place of detention in Afghanistan. However, this case is not representative of the issues raised by the industry, as Jack Idema, the leader of the group, was more akin to a bounty hunter than an ordinary PMC/PSC employee. It is not clear whether any form of corporate structure existed, and it appears that he was acting on his own and not on behalf of any client. See e.g., Fariba Nawa, Afghanistan, Inc., Corpwatch Investigative Report, 2006, p. 15, available at http:// corpwatch.org/article.php?id=14081. The two cases currently before the US courts are civil proceedings against the companies and not their staff. See above note 39.
87. Report of the Expert Meeting on Private Military Contractors, above note 12, pp. 9 and 58–59. The jurisdiction of these courts would be limited to contractors directly hired by the British government.
88. USC, Chapter 18, § 3261–3267 (2000).
89. On MEJA, see e.g., Andrew Fallon and Theresa Keene, “Closing the legal loophole? Practical implications of the Military Extraterritorial Jurisdiction Act of 2000: Civilians accompanying the armed forces”, Air Force Law Review, No. 51, 2001, p. 271
90. Joseph Perlak, “The Military Extraterritorial Jurisdiction Act of 2000: Implications for contractor personnel”, Military Law Review, No. 169, p. 92.
91. USC, Chapter 18, § 2441.
92. The jurisdiction of civilian United States courts over “ordinary crimes” committed by contractors must be distinguished from the question of whether contractors may be prosecuted for failing to obey orders given by members of the armed forces – a potential “command and control” weakness repeatedly raised by armed forces working with contractors. While such behavior by members of the armed forces is punishable under the Uniform Code of Military Justice, contractors are only subject to this law, and to the jurisdiction of military courts, in case of Congressionally declared war (United States v. Averette, 19 C.M.A. 363 (1970)).
93. In all other circumstances, while the company and, in turn, the employee may be sued for breach of contract, the latter cannot be prosecuted for failing to obey orders. Commanders have expressed concern at this state of affairs, as they fear that in view of the increased reliance on the private sector, it could amount to loss of a core task, such as aircraft maintenance at a time of need. On this issue, see e.g., Stephen Blizzard, “Increased reliance on contractors on the battlefield: How do we keep from crossing the line?”, Air Force Journal of Logistics, No. XXVIII, 2004, p. 2.
94. The scope of application of the UCMJ was significantly expanded in late 2006 by a clause inserted almost unnoticed in the Department of Defense's 2007 budget legislation. This provision extends the application of the UCMJ beyond “declared wars” to also include “contingency operations”. (Section 552 National Defense to Authorization Act for Fiscal year 2007), on this amendment see, e.g., P. Singer, Law Catches up to Private Militaries, Defense Tech, 4 January, 2007.
95. It was not a new concept, a number of prosecutions in the aftermath of the Second World War were based on the same notion of “superior responsibility” under national law. Commentary: Additional Protocols, above note 58, paras. 3540 et seq.
96. See also Kriangsak Kittichaisaree, International Criminal Law, 2001, pp. 251 et seq.
97. See e.g., the practice referred to by Henckaerts and Doswald-Beck, above note 66, Vol. I: Rules, Rule 153
98. Vol. II: Practice, Part 2, pp. 3733 et seq.
99. Commentary: Additional Protocols, above note 58, para. 3544.
100. One of the reasons given for this limitation is that the immediate superior is most likely to have the requisite knowledge of the (potential) wrongdoing for the responsibility to arise. Commentary: Additional Protocols.
101. Commentary: Additional Protocols, para. 3548
102. Henckaerts and Doswald-Beck, above note 66, Vol. I: Rules, Rule 153.
103. A discussion of these requirements is beyond the scope of this article, but for a detailed review, see e.g., Liesbeth Zegveld, Armed Opposition Groups in International Law: The Quest for Accountability, 2002.
104. See e.g., Emanuela-Chiara Gillard, “Business and human rights obligations: The position with regard to international humanitarian law”, Proceedings of 100th Annual Meeting, American Society of International Law, 2006, pp. 114 et seq.
105. On this question, see e.g., Jennifer Zerk, “Common law tort liability for corporate participation in international crimes”, a paper prepared for the International Commission of Jurists' Expert Legal Panel on Corporate Complicity, 15 September 2006
106. Craig Scott (ed.), Torture as Tort: Comparative Perspectives on the Development of Transnational Tort Litigation, 2001.
107. See the discussions of the August 2005 Expert Meeting on this topic: Report of the Expert Meeting on Private Military Contractors, above note 12, pp. 58 et seq.
108. USC, No. 28, para. 1350. For details of the cases see above note 39.
109. On this last point see Spear, above note 2, p. 44.
110. See Gillard, above note 84, p. 115. For a different view see Clapham, above note 68.
111. Third Geneva Convention, Article 39
112. Fourth Geneva Convention, Article 99.
113. US Department of Defense Instruction No. 1100.22, above note 35.
114. Fourth Geneva Convention, para. 4.1.
115. This is also expressly specified in US Department of Defense Instruction No. 3020.41, above note 35. In general terms, according to Instruction No. 1100.22, “inherently governmental” functions include: “activities that require either the exercise of discretion when applying Federal Government authority or value judgments when making decisions for the Federal Government.”
116. US Department of Defense Instruction No. 1100.22, Enclosure 2, Manpower Mix Criteria, para. E2.1.1.
117. Manpower Mix Criteria, paras. E2.1.3 and E2.1.3.3. The reason given for this is that: “Only military forces provide the appropriate authorities and controls (command authority, [Uniform Code of Military Justice] authority, and discretionary authority), discipline, weapons, equipment, training and organization needed to execute combat missions on behalf of the United States. If combat operations were performed by private sector contractors, it would constitute an inappropriate relinquishment of the U.S. government's sovereign authority.”
118. Manpower Mix Criteria, para. E2.1.3.3.2. Also “inherently governmental” is “Uniform Code of Military Justice Authority” – i.e., arresting or confining members of the armed forces and civilians accompanying them during a declared war in relation to alleged violations of the Uniform Code of Military Justice (para. E2.1.2.1); and military discipline and discretionary decision authority (para. E2.1.2.2).
119. Manpower Mix Criteria, para. E2.1.4.1.
120. Manpower Mix Criteria, paras. E2.1.4.1.2 and E2.1.4.1.3.
121. Manpower Mix Criteria, paras. E2.1.4.1.5 and E2.1.4.1.5.1.
122. Manpower Mix Criteria, para. E.2.1.6.
123. Manpower Mix Criteria, para. E.2.1.6.2.
124. Manpower Mix Criteria, para. E.2.1.6.4.
125. Commentary: Third Geneva Convention, above note 27, p. 18
126. Commentary: Additional Protocols, above note 58, para. 41.
127. “DoD Law of War Program”, US Department of Defense Directive Number 2311.01E, 9 May 2006; para. 5.7.4.
128. “DoD Law of War Program”. In addition, Article 87(1) requires commanders to prevent and where necessary suppress and report to the competent authorities breaches of the Geneva Conventions and the Protocol.
129. This obligation exists both in relation to members of the armed forces under their command and to “other persons under [their] control”. This expression has been very broadly interpreted as including, for example, the civilian population in an occupied territory. (Commentary: Additional Protocols, above note 58, para. 3555.) There appears to be no reason why this obligation should not also exist in relation to PMC/PSC employees hired by the armed forces or otherwise under their control, even though they are not within their formal chain of command and control.
130. US Department of Defense Directive No. 2311.01E, above note 35, para. 6.3.
131. Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its fifty-third session, and Commentaries thereto, “Report of the International Law Commission on the work of its Fifty-third session (2001)”, Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10, (UN Doc A/56/10) Chapter IV.E.1. The draft articles under discussion are generally accepted as reflecting customary law on this subject.
132. The basis for and extent of state responsibility for PMCs/PSCs was the subject of extensive debate at the 2005 Expert Meeting in Geneva. See Report of the Expert Meeting on Private Military Contractors, above note 12.
133. The Commentary to this draft Article states that no distinction is made between the acts of “superior” and “subordinate” officials for the purpose of attribution, so the fact that PMC/PSC employees are unlikely to hold senior positions in the armed forces does not preclude state responsibility. (Commentaries on the Draft Articles on Responsibility of States for Internationally Wrongful Acts, above note 115, p. 87.)
134. The Commentary to draft Article 5 gives as examples the use of private security firms to act as prison guards, who would in that capacity exercise public powers such as powers of detention and discipline pursuant to a judicial sentence or prison regulations, and that of airlines that have been delegated powers in relation to immigration control or quarantine. (Commentaries on the Draft Articles on Responsibility of States for Internationally Wrongful Acts, above note 115, p. 92.)
135. The activities that could be considered an exercise of “governmental authority” were the subject of considerable discussion at the Expert Meeting. Report of the Expert Meeting on Private Military Contractors, above note 12, pp. 16–18.
136. Commentaries on the Draft Articles on Responsibility of States for Internationally Wrongful Acts, above note 115, p. 108.
137. The US Department of Defense Instruction on Contractors expressly renders companies responsible for ensuring that employees perform under the terms of the contract and comply with theatre orders and applicable directives, laws and regulations. They are also responsible for maintaining employee discipline. US Department of Defense Instruction No. 3020.41, above note 35, para. 6.3.3.
138. See e.g., Commentary: Third Geneva Convention, above note 27, p. 17
139. Commentary: Additional Protocols, above note 58, paras. 41 et seq. Doubts have been expressed as to whether the drafters of the conventions had this interpretation in mind.
140. See e.g., Frits Kalshoven, “The undertaking to respect and ensure respect in all circumstances: From tiny seed to ripening fruit”, Yearbook of International Humanitarian Law, Vol. 2, 1999, p. 3.
141. See e.g., Henckaerts and Doswald-Beck, above note 66, Vol. I: Rules, Rule 144.
142. See e.g., Schreier and Caparini, above note 2, and Holmqvist, above note 2. A regulatory framework was also recommended by the UN Special Rapporteur on the question of torture. He called upon states: “To introduce legislation to control and monitor the activities of private providers of military, security and police services to ensure they do not facilitate or perpetrate torture. Companies and individuals providing these services should be required to register and to provide detailed annual reports of their activities. Every proposed international transfer of personnel or training should require prior government approval, which should only be granted in accordance with publicly available criteria based on international human rights standards and international humanitarian law.” Report of the Special Rapporteur on the question of torture, Theo van Bowen, 15 December 2004, UN Doc E/CN.4/2005/62, para 37(h).
143. CPA Memorandum 17: Registration Requirements for Private Security Companies, 26 June 2004, and Section 19 of Sierra Leone's 2002 National Security and Central Intelligence Act.
144. Section 9.1 of CPA Memorandum 17 provides that: “The primary role of PSC is deterrence. No PSC or PSC employee may conduct any law enforcement functions.”
145. See e.g., Section 6 of CPA Memorandum 17.
146. The 1998 Regulation of Foreign Military Assistance Act (FMAA). A number of amendments have been made to the FMAA and are expected to come into force in 2007. On the FMAA, see Raenette Talijaard, “Implementing South Africa's Regulation of Foreign Military Assistance Act” in Alan Bryden and Marina Caparini (eds.), Private Actors and Security Governance, 2006, pp. 176 et seq.
147. See e.g., the United States' International Traffic in Arms Regulations. On this, see Schreier and Caparini, above note 2, pp. 104 et seq.
148. See e.g., Private Military Companies: Options for Regulation, Foreign and Commonwealth Office, HC 577, 2002.
149. On this Green Paper and subsequent developments in the UK, see e.g., Christopher Kinsey, “Regulation and control of private military companies: The legislative dimension”, Contemporary Security Policy, Vol. 26(1), 2005, p. 1
150. Elke Krahmann, “Private military services in the UK and Germany: Between partnership and regulation”, European Security, Vol. 14(2), 2005, p. 277 and Walker and Whyte, above note 8.
151. See e.g., the criteria in the 1998 EU Code of Conduct on Arms Transfers. (EU Code of Conduct on Armament Exports, 5 June 1998, 8675/2/98 Rev 2.)
152. See e.g., Elke Krahmann, “Regulating private military companies: What role for the EU?”, Contemporary Security Policy, No. 26, 2005, p. 103
153. “Regulating military and security services in the European Union”, in Bryden and Caparini, above note 129, p. 190.
154. OAU Doc CM/433/Rev.l.Annex 1 (1972). This convention entered into force on 22 April 1985 and, at the time of writing, has been ratified by 27 states.
155. United Nations Treaty Series, Vol. 2163, p.75. This convention entered into force on 20 October 2001 and, at the time of writing, has been ratified by 28 states.
156. The threshold was set intentionally high at the Diplomatic Conference on the Re-affirmation and Development of International Law, that negotiated the Additional Protocols of 1977, as “determination of a person's status as a mercenary was likely to involve life or death consequences” and some states wanted to reduce the risk that the article could be used to deny combatant or prisoner-of-war status to legitimate combatants. Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), Vol. XV, Committee III Report, Fourth Session, 17 March–10 June 1977, CDDH/407/Rev.1, para. 25.
157. See Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), Vol. XV, Committee III Report, Third Session, 21 April–10 June 1976, CDDH/236/Rev.1, para 102.
158. Geoffrey Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflict, 1980, p. 328.
159. For additional shortcomings of the definition see, inter alia, the presentation given by one of the experts at the first meeting of experts convened by the Commission on Human Rights in 2001. Commission on Human Rights, The Right of Peoples to Self-determination and its Application to Peoples under Colonial or Alien Domination or Foreign Occupation, UN Doc E/CN.4/2001/18, 14 February 2001
160. Annex: Report of the Meeting of Experts on the Traditional and New Forms of Mercenary Activities as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination, Geneva, 29 January–2 February 2001, para. 24.
161. Although Article 47 was adopted by consensus at the Diplomatic Conference, it was a compromise text, and had been the subject of considerable controversy – of a political rather than legal nature. Some states, notably those emerging from colonial domination or who had been the “victims” of mercenary activities, had wanted a stronger text requiring states to prohibit recruitment, training, assembly and operation of mercenaries and prohibiting their nationals from enlisting as mercenaries – the position subsequently adopted in the specialized conventions. Other states did not wish the Protocol to prohibit being a mercenary and mercenarism, and also considered that even the approach that was ultimately adopted, which focused on status, could in practice limit protection and, accordingly, did not belong in a treaty of a humanitarian nature such as the Additional Protocol – a view echoed by some commentators. Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), Volume VI, Plenary Meetings, Summary Records of the Thirty-Fourth to Forty-Sixth Meetings, CDDH/SR.41, pp. 156–204.
162. For discussions of the negotiations see, inter alia, Commentary: Additional Protocols, above note 58, paras. 1789 et seq
163. Michael Bothe, Karl Partsch and Waldemar Solf (eds.), New Rules for Victims of Armed Conflicts – Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, 1982, pp. 267 et seq
164. François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, 2003, p. 628
165. Rosas, above note 51, pp. 392 et seq
166. Henry Van Deventer, “Mercenaries at Geneva”, American Journal of International Law, No. 70, 1976 p. 811
167. Abdulqawi Yusuf, “Mercenaries in the Law of Armed Conflicts”, in Antonio Cassese (ed.), The New Humanitarian Law of Armed Conflict, 1979, pp. 113 et seq.
168. One example was the trial that took place in Angola in 1976 described in Mike Hoover, “The Laws of War and the Angolan Trial of Mercenaries: Death to the Dogs of War”, Case Western Journal of International Law, 1977, pp. 323 et seq.
169. See also Edwin Nwogugu, “Recent Developments in the Law Relating to Mercenaries”, The Military Law and Law of War Review, No. XX-1–2, 1981, p. 11 at p. 17
170. more recently, Amnesty International Press Release “Equatorial Guinea: Trial of alleged coup plotters seriously flawed”, AFR/24/017/2004, 30 November 2004.
171. In recognition of this particular problem, an earlier draft of Article 47 proposed during the negotiations had included an express reference to the fact mercenaries were entitled to the protections of what became Article 75. This provision was ultimately removed as part of the compromise. CDDH/407/Rev.1, above note 137, para. 27.
172. Some states at the negotiations had called for such an approach. See Commentary: Additional Protocols, above note 58, para. 1795.
173. Report of Mission dispatched by the Secretary-General on the situation of prisoners of war in the Islamic Republic of Iran and Iraq, UN Doc S/20149, 24 August 1988, para. 65.
174. This assertion appears to conflict with the ICRC's experience in relation to visits to alleged mercenaries detained by Iran during the same conflict as described in Bugnion, above note 141, p. 629.
175. OAU Convention, Article 1 and UN Convention, Article 1.
176. OAU Convention, Article 2.
177. UN Convention, Article 3(1).
178. UN Convention, Article 2.
179. In fact, the UN Convention also applies to persons participating in a concerted act of violence aimed at overthrowing a government or otherwise undermining the constitutional order of a state or undermining its territorial integrity. UN Convention, Article 1(2).
180. OAU Convention, Article 11.
181. UN Convention, Article 11.
182. Other UN instruments that adopt a similar, “criminalize, prosecute or extradite” approach contain far more affirmative language with regard to the minimum judicial guarantees to be ensured during criminal proceedings. See, for example, Article 14 of the 1997 International Convention for the Suppression of Terrorist Bombings.
183. Third Geneva Convention, Article 5
184. Additional Protocol I, Article 5.
185. See Declaration of the International Committee of the Red Cross on the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, United Nations General Assembly, item 144, 44th session, November 1989.
186. See, e.g., Article 7(5) of the 1997 International Convention for the Suppression of Terrorist Bombings and Article 9(5) of the 1999 International Convention for the Suppression of the Financing of Terrorism.
187. Third Geneva Convention, Article 126
188. Fourth Geneva Convention, Article 143.
189. In view of the importance of retaining its independent access to persons deprived of their liberty in relation to an armed conflict, the ICRC made a declaration to the UN General Assembly at the time of the adoption of the UN Convention, recalling its right to visit persons deprived of their liberty, regardless of whether it had been invited by their state of nationality or citizenship. The declaration emphasized that it was vital for the ICRC to retain the freedom to either accept or refuse any such invitation. It also pointed out that in such circumstances the ICRC would not consider itself as acting on behalf of the requesting state but would work independently and solely on the basis of humanitarian considerations. ICRC Declaration, above note 156.
190. This conclusion was confirmed during a meeting held in 1988 between representatives of the ICRC and Prof Tullio Treves, Vice-Chairman Special Committee of the UN General Assembly for the Drafting of a Convention Against the Recruitment, Use, Financing and Training of Mercenaries, ICRC Document 88/ 1578, 16 December 1988, ICRC Ref 130, 215(00).
191. Best, above note 140, p. 328.
192. US Department of Defense Instruction Number 3020.41, above note 35, para. 6.1.5.
193. This point was vividly made by Major William Epley: [t]he closer the function to the sound of battle, the greater the need to have soldiers perform the function because of the greater need for discipline and control. (William Eply, Contracting in War: Civilian Combat Support of Fielded Armies, US Army Center of Military History, 1989, 1–6.)
194. The United Kingdom has adopted a creative approach for dealing with this question. The 1996 Sponsored Reserve Act requires a specified portion of the workforce of a government contractor to be members of a military reserve component. Under this arrangement, in time of need, the British government “sponsors” reservist PMC/PSC employees who are mobilized and deployed as uniformed members of the armed forces, where they operate under the command and control of military commanders. As members of the armed forces they are entitled to take direct part in hostilities and to prisoner-of-war status when captured. See, e.g., Blizzard, above note 73, pp. 10 et seq. and references therein.