Private Military Companies: Accountability Under International Law

1
Private Military Companies Accountability Under
International Law

• Margaret Zimmerman
• ISISC

War is far too important to be left to the
generals it is also far too important to be
left to the C.E.O.s. -P.W. Singer
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History of Military Privatization
1294b.c. Ramses II Battle for Kadesh
334b.c. Alexander the Great Persian Invasion
Medieval Era Basil II Varangian Guard
1400s Swiss Mercenaries France, Spain, Italy
1775-1783 British American War for Indepenence
270b.c. Siracusa Kings Mamertimes
1066 William the Conquerer Norman Conquest
Renaissance Italian City-States Condottieri
1000b.c. King David Israel
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Modern Privatization

• 1916-1928 Chinese Warlord Period
• 1941 Roosevelts Flying Tigers
• 1960-1965 Congo
• 1967-1970 Nigeria Biafra
• 1970s Angola (FNLA v. MLPA)
• JohnBanks
• 1990s Angola (MLPA v. UNITA)
• Executives Outcomes
• 1990s Sierra Leone
• Gurkha Security Guards
• Executive Outcomes
• 1990s Bosnia and Herzegovina
• Executive Outcomes
• 1990s-2009 Iraq
• Blackwater
• 2000s Democratic Republic of Congo
• Omega Security Solutions
• AQMI Strategy Corp.
• 2000s Israel

4
Mercenaries under International Law

• Hague Conventions
• Geneva Conventions
• UN Charter Resolutions
• Additional Protocol I
• Organization of African Union Resolutions
• OAU Convention against Mercenaries
• UN Mercenary Convention

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Hague Conventions (Hague V) - 1907

• With a view to laying down more clearly the
  rights and duties of neutral Powers in case of
  war on land and regulating the position of the
  belligerents Preamble

• Distinction between allowing recruitment
  voluntarily joining
• Article 4 state may not allow formation nor
  recruitment
• Article 6 no duty on state to prevent
  individuals traversing borders (limits the
  obligation)
• ? States must prevent domestic mercenary
  recruitment but not required to outlaw per se

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Geneva Convention III - 1949

• Art. 4 specifically does not mention PMCs in
  extending POW status
• Debate ?
• Commentary on Geneva Conventions silence
  amounts to lack of consideration of PMCs
• Modern Scholars purposeful exclusion
• ? States required to hold PMCs accountable for
  grave breaches but no criminalization

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UN Charter Resolutions

• Charter limits use of force
• exceptions individual or collective
  self-defense in the face of an armed attack
• UNGA Res. 2131 (1965) forceful defense of
  sovereignty but no mention of mercenaries
• may be construed to apply to PMCs and prevent
  unlawful intevention (beginnings of intervention
  law)
• unaminously adopted by 109 member states
• UNGA Res. 2465 (1968) criminalizes and outlaws
  mercenaries, non-binding aspiration of customary
  interl law condemns state toleration
• only applies to post-colonial wars of natl
  liberation
• 53-8-43

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UN Charter Resolutions

• UNGA Res. 2625 (1970) proscribes only State
  sponsorship not prevent from recruiting no
  mention of natl liberation movements
• providing contractors for non-state actors wholly
  acceptable
• UNGA Res. 3103 (1973) reinforces natl
  liberation movements reaffirms domestic
  punishment as criminals but without state
  practice remains outside customary interl law
• client of a racist regime that suppressed
  self-determination movement then go against 3103
• 83-13-19
• UNGA Res. 3314 (1974) all State use of
  mercenaries for unjust force violates UN Charter
  context irrelevant individuals not mentioned
• adoption by consensus customary interl law
• 1987 establishment of Special Rapporteur

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UN Charter Resolutions

• UNGA Res. 151 (2007) reiterated past
  resolutions and reaffirmed the work of the
  Working Group (est. 2005) who works with govts,
  IGO/NGOs and PMCs to -
• draft Model Law
• identify elements for a draft convention on PMCs
• elaborate on existing legal gaps
• monitor mercenary-like activities worldwide

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UN Charter Resolutions

• ? States must not organize, encourage or send
  mercenaries in acts of armed force against
  another State context irrelevant
• ? States may tolerate mercenary use of force
  against another State
• ? Working Group OHCHR tasked with examining
  trends proposing accountability mechanisms

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Protocol I - 1977

• Working Group Committee III political
  compromise - discourage but not regulate
  mercenaries (Nigerian proponents)
• Developed whatever their faults and their moral
  destitution they should have these fundamental
  guarantees
• Holy See, US
• Developing odious profession of paid killers
  
• Nigeria, Libra, Zaire, Cuba, Syria, Soviet Union
• focus from 1950-1977 - 3000 years of history
  ignored

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Protocol I - 1977

• Art. 47 DOES
• defines mercenary
• characterizes as unlawful combatants (remains
  outside customary interl law)
• denies fundamental freedoms of Art. 75 no POW
  status
• encourage domestic regulation criminalizing
  mercenaries
• establish motivation and compensation criteria
• Art. 47 DOES NOT
• examine the status of mercenaries
• criminalize mercenarism or recruitment of
• prevent States from incorporating mercenaries
  into armed forces bypassing application of Art.
  47

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Organization of African Unity

• 1967 Resolution Regulating Mercenaries
• condemnation and encouraged domestic measures
• 1971 Declaration on the Activities of
  Mercenaries
• mobilize global opinion towards eradication of
  mercenaries
• end colonialism in Africa which allows
  mercenaries to prosper
• 1972/1976 Draft Convention for the Elimination
  of Mercenaries in Africa
• defined mercenary without motivation
• identified individual and State responsibilties
• criminalized recruitment and mercenarism

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International Convention Against the Recruitment,
Use, Financing and Training of Mercenaries (OAU)
- 1977

• Status unlawful combatants not POWs
• Definition nearly identical to Protocol I
• Criminalizes mercenarism related offenses
• disparity between definition of mercenary crime
  of mercenarism
• ex Former Legionnaire no recruitment, fights
  for profit in non-post-colonial situation
• assists rebels but not to overthrow/destabilize
  govt
• contract with MOD??

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UN Mercenary Convention 1989

• Definition broader than OAU Protocol I
• lowers threshold requirements for being a
  mercenary
• lower compensation threshold (comparison to
  native counterparts)
• massive evidentiary problems in terms of
  prosecution
• maintains motivational component
• volunteer fighting for ideology that is racist or
  favors alien domination not mercenary

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UN Mercenary Convention 1989

• Criminal Liability mercenary who directly
  participates, accomplice, attempts or anyone
  recruits, finances, uses or trains
• States criminally liable?
• State Obligations affirmative duties
• generally prohibit mercenary activities
• specifically prevent if intended to oppose
  self-determination movement
• Something more than just domestic legislation?

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UN Mercenary Convention 1989

• ? Entry into force 2001 with 22 States
• ? 32 ratifications to date
• most recently Syria in autumn 2008
• ? 6 original OAU states to urge sign
• Cameroon only one to become a party
• Angola DRC used mercenaries since
• ? Nigeria (proposed Art. 47 UN Convention) not
  a state party

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Are Private Military Contractors Mercenaries?
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Applying Conventional Mercenary Instruments to
PMCS

• Art. 47 Protocol I - generally not meet
  requirements
• recruited for armed conflict
• logistic services, protective detail
• Executive Outcomes not likely to be repeated
• direct participation
• offensive/defensive is participating but probably
  more than self-defense or defense of third
  persons
• citizen of state not party to conflict
• not always the case particularly in Iraq
• motivation
• ie prosecutor would have to compare to motive
  for those in regular army which is not just
  health benefits ideology

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Applying Conventional Mercenary Instruments to
PMCS

• UN Mercenary Convention irrelevant and freely
  ignored
• motivation
• contracting solely for financial gain
• particular recruitment
• Not recruited for concerted act of violence to
  overthrow or undermine a state

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Is Absolute Prohibition Possible?

• contradicts 3000 years of history
• lacks political will
• wholly unenforceable
• without global prohibition creates further
  problems

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Holding PMCs Accountable International
Options

• State Sanctions through interl community
• legal sanctions against employing State
• waiver of objection to extradition to universal
  jurisdiction State
• legal recourse to ICC or ad hoc tribunal
• UN Rapporteur/Working Group expand mandate
• universal proposed domestic legislation
• universal licensing scheme where the UN then
  hires companies

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Holding PMCs Accountable Domestic
Options

• Litigation
• Corporation - go after parent corporation based
  on negligence
• corporations duty to care v. crime committed
• Individual military or civilian courts
• detecting violations
• jurisdictional issues
• evidentiary mountains to climb
• political question doctrine
• government contractor immunity
• liability superior responsibility, JCE,
  complicity of CEOs

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Holding PMCs Accountable Domestic
Options

• Contracual Method forces the client to monitor
  and ensure compliance would this wipe out any
  efficiency gained through PMCs?
• corporate structure duty to care
• incorporate domestic laws into contracts
• enforcement mechanisms judicial review?
• reporting requirements
• Institutional Change cultural, organizational,
  professional norms industry wide
• licensing schemes that are not self-imposed
• sanctioning for non-compliance
• codes of conduct (force adoption of IPOA code)
  self-regulation
• external independent monitor (ex ABA, AMA)

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Montreaux Document 2008

• 28 States support limited to armed conflict
  many do not apply those provisions already in
  place
• ? Applicable Legal Obligations
• State obligations remain and must apply IHL HRL
  (Hague, Geneva, Protocol I, UN Convtn)
• PMCs must respect natl laws, IHL, HRL
• notes superior liability of govt over PMCs
• ? Best Practices
• establishes criteria, procedure, terms of
  contracts
• creation of monitoring authorizing mechanisms

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A target at the end of the scope.

• Definition (individuals acts) perform
  mercenary-like activities but fall outside the
  definition
• profit motive irrelevant
• nationality residencey irrelevant
• accountability based definition
• Political Will lack of it to limit
  mercenary-like activities
• strong weak states acknowledge benefits of PMCs
  efforts to reduce are shams
• Interl Law interl community advocates against
  mercenaries yet since Cold War practice has
  increased
• Can Working Group overcome the UN beauracracy in
  a reasonable timeframe?