State Responsibility for Conduct of Private Military and Security Companies Violating Ius ad Bellum
Abstract and Keywords
This chapter discusses the circumstances under which states can be held accountable for a breach of the ius ad bellum, when the acts in question were performed by a private military and security company (PMSC). The definition of the ius ad bellum itself is reconsidered as a corpus of norms, including a prohibition of the use of force but also encompassing obligations to prevent this use of force by private actors such as PMSCs. This lato sensu definition may lead to a recognition of state responsibility irrespective of whether or not the acts of private contractors are attributable to the state. It is argued that when a state cannot be held accountable for the violation of ius ad bellum stricto sensu by a PMSC, as a next step in determining state responsibility, respect of the due diligence principle needs to be examined. Moreover, states may have a duty to harmonise their national legal systems in order to prevent ius ad bellum violations by private actors.
This chapter addresses the question of whether or not a state can be held responsible for breaches of ius ad bellum arising from the acts of private military and security companies (PMSCs), and is part of an attempt to assess the role of international law in the governance of the still rather unregulated phenomenon of PMSC activity on the international scene.1
Historically, the problems associated with the activities of either the mercenaries or PMSCs have never led states to adopt specific norms, national or international, relating to their international responsibility in case of an illicit use of armed force with the help of such private combatants. The UN Convention on Mercenarism even states that, ‘The present Convention shall be applied without prejudice to…[t]he rules relating to the international responsibility of States’,2 setting aside any specific question that could arise from this practice.3
Though they historically proceed from a single phenomenon, it is nowadays uncontroversial that mercenaries and PMSCs should be distinguished from each other, as they differ.4 (See the definition of PMSCs proposed in the Introduction to this volume.5)
For the sake of clarity, the Montreux Document proposes a categorization of the different relationships between a state and a PMSC:
(p. 397 ) ‘Contracting States’ are States that directly contract for the services of PMSCs, including, as appropriate, where such a PMSC subcontracts with another PMSC.…‘Territorial States’ are States on whose territory PMSCs operate.…‘Home States’ are States of the nationality of a PMSC, i.e. where a PMSC is registered or incorporated; if the State where the PMSC is incorporated is not the one where it has its principal place of management, then the State where the PMSC has its principal place of management is the ‘Home State’.6
In the absence of any lex specialis ruling the responsibility of the state for the acts of PMSCs, the present study is necessarily rooted in general public international law. According to the International Law Commission (the ICL) Draft Articles on State Responsibility, for a state to be responsible for the acts of a PMSC, a breach of ius ad bellum has to be characterized, and it is to be attributed to the state.7 Indeed, Draft Article 1 states that ‘every international wrongful act of a State entails the international responsibility of that State’, while Draft Article 2 explains: ‘there is an internationally wrongful act of a State when conduct consisting of an action or an omission (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State’.8
Ius ad bellum encompasses the international rules on the use of force by states. It is well known that the entry into force of the UN Charter in 1945 grounded the general prohibition of the use of force by states in their international relations.9 However, it must be clear that not every use of force amounts to a violation of ius ad bellum: the general prohibition contained in Article 2(4) of the UN Charter is accompanied with UN Charter-based, as well as arguably customary, exceptions. Indeed, the use of force can be considered lawful—with unequal certainty, which will be discussed later—in putative self-defence operations, peacekeeping and peace-enforcing operations, as well as in operations where states claim to be protecting their own rights under public international law.
This chapter will first address the question of whether or not a state can be held responsible for the acts perpetrated by a PMSC. It will then be examined whether, defined lato sensu, ius ad bellum would imply that states must abide by certain positive obligations of due diligence and to regulate the use of force by the PMSCs at the domestic level.
(p. 398 ) I. State Responsibility Arising from the Acts of a PMSC
According to the ILC Draft Articles on State Responsibility, a state is responsible in international law when a violation of an international obligation can be attributed to it.10 The question of whether a state can be held responsible for the acts of a PMSC implying the use of armed force is therefore twofold, and will be dealt with in terms of both the existence of a violation of ius ad bellum (A) and the attribution of this breach to the State (B).
A. A Violation of Ius ad Bellum by a PMSC
As has been stressed before, not every use of force amounts to a violation of ius ad bellum. We will first examine the conditions of the lawful use of force, and then we shall characterize what a violation of ius ad bellum consists of.
1. Disregarding the Conditions of the Lawful use of Force
The limits to the prohibition on the use of force in international relations have been discussed before, and significantly since the entry into force of the San Francisco Charter.11 We therefore do not intend to revisit the issue exhaustively, but only to examine the conditions of exercise of the three categories of military operations that can be considered, with variable certainty, consistent with ius ad bellum: self-defence operations, peace operations, and humanitarian interventions.12 Indeed, in practice states do tend to argue that they are using force consistently with ius ad bellum. However, regardless of the political attempts to justify the use of force ex post facto, when PMSCs are acting outside the strict legal conditions of the lawful use of force, an issue of violation of ius ad bellum arises.
(p. 399 ) a) Disregarding the legal conditions of self-defence
The ‘inherent right of self-defence’ of the state is the necessary corollary of the prohibition of the use of force,13 as confirmed the International Court of Justice (ICJ) in its Legality of threat or use of nuclear weapons advisory opinion.14 This right, however crucial it may be, is not absolute. First, self-defence is a subsidiary right of states, since the primary responsibility for the maintenance of international peace and security rests on the UN Security Council acting on behalf of the UN member states.15 Therefore, the exercise of self-defence is only possible until the UN Security Council seizes the question. Deriving from this subsidiarity, self-defence is to be exercised immediately, and the measures taken are to be ‘proportional to the armed attack and necessary to respond to it’.16 Insofar as this right is exercised collectively, it is necessary that the attacked state both considers itself as such, and explicitly calls for third states' intervention.17
b) Disregarding the legal conditions of ‘Peace Operations’
Peace-enforcement and peace-keeping operations constitute the second group of cases in which the use of force is considered lawful. On the one hand, peace-enforcement operations are military operations authorized by the UN Security Council on the basis of Articles 39 and 42 of the UN Charter, deciding to use force in order to maintain or restore peace.18 Such operations are composed of national troops, made available by the UN Member States.19 As said before, these operations are grounded on a decision of the Security Council under Chapter VII of the UN Charter. From a lege lata perspective, a possible breach of ius ad bellum would occur if the operation had not previously been authorized by the UN Security Council.20 On the other hand, subsequent practice of the UN shows that (p. 400 ) peacekeeping operations21 can be agreed on a conventional basis, whereby the consent of the state hosting the mission on its territory is obtained, and the mission of the deployed troops is limited. As former UN Secretary General Boutros Boutros-Ghali recalled, when so-called Chapter VI bis operations are at stake, the ‘three particularly important principles [to consider] are the consent of the parties, impartiality and the non-use of force except in self-defence’.22 So, for example, a violation of ius ad bellum would occur, were the troops to use force outside self-defence,23 thereby going beyond their conventional mandate.24
c) Operations where states claim to protect their own rights under public international law
This is the most controversial case: when a state unilaterally intervenes in another country, claiming to exercise its own right to protect its citizens and national interests abroad. Such operations are illustrated by concrete examples as the hostage-rescue raid conducted by Israel on 4 July 1976 on the Entebbe airport in Uganda, the French operation Shaba in Zaire in 1978, or the 1980 US operation in Iran aimed at rescuing its diplomatic staff. In these situations, it is arguable whether strict conditions must be complied with to ensure the legality of the intervention, since there is no consensus that this kind of operation is lawful at all. On the other hand, there is no reverse consensus clearly outlawing these operations, because of the very fact that states claim to be protecting their own rights under public international law. Furthermore, state practice shows that these operations survived the entry into force of the San Francisco Charter and its Article 2(4). In any event, from a pragmatic standpoint, general principles of international law should nevertheless apply here. At the very least the intervention should be necessary and proportionate. Therefore, from this perspective the acts of PMSC personnel should be evaluated according to a teleological criterion, ie in light of the aims of the intervention on an ad hoc basis.
2. Legal Characterization of the Breach of Ius ad Bellum by a PMSC
The breach of ius ad bellum by a PMSC—that is, the unlawful use of force by a PMSC—can receive different legal characterizations, ranging from coercive intervention in the internal affairs of a state, to armed attack. As we will see later, the legal characterization of the breach of ius ad bellum varies according to the relationship between the state and the PMSC. It is well known that the notions (p. 401 ) of armed attack and aggression are left undefined by the UN Charter,25 and were defined in 1974 by the UN General Assembly (UNGA).
In the distinct context of individual criminal liability, the definition of aggression given by the 1974 UNGA resolution has been further elaborated, challenged and confirmed. First, it was discussed and finally rejected by the ILC when working on a Draft Code of Crimes against the Peace and Security of Mankind.26 Then, in the context of the creation of the International Criminal Court (ICC), the 1974 UNGA definition served as a basis for the definition of the crime of aggression in the Court's Statute. However, although included in Article 5 of the Statute of the International Criminal Court as a prosecutable offence, no definition of the crime of aggression could be agreed upon. The Special Working Group on the Crime of Aggression, established by the Assembly of the Parties to the Rome Statute to cope with the lack of definition of aggression in Article 5 of the Statute, presented a draft amendment to the Statute of the Court in February 2009.27 The discussions of the Assembly of the Parties to the Rome Statute during the Review Conference of the Rome Statute, which was held in Kampala from 31 May to 11 June 2010, led to the adoption by consensus of a resolution on ‘The Crime of Aggression’, which confirms the pertinence of the 1974 UNGA resolution. Article 8 bis of the Statute is indeed introduced, and states:
1. For the purpose of this Statute, ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
2. For the purpose of paragraph 1, ‘act of aggression’ means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression…28
(p. 402 ) Although it is acknowledged here that the 1974 UNGA resolution definition of aggression is often considered unsatisfactory, and that the very aim of defining aggression has been challenged,29 the 1974 UNGA proposal is still an incontrovertible element of the definition in our study.
According to resolution 3314 (XXIX), adopted by the UNGA in 1974: ‘Aggression is the use of force by a State against the sovereignty, the territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.’30 The resolution then provides for a list of cases considered as acts of aggression, such as wrongful attack, bombardment, blockade, etc.31 Article 3(g) of the 1974 resolution stipulates that an act of aggression can consist of: ‘The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry acts of armed forces against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.’32 Such a form of aggression is also referred to as indirect aggression, insofar as ‘the home State uses [the PMSCs] as a conduit (“on behalf of the State”) for indirect armed intervention against another State’.33 Consequently, the resolution expressly recognizes that a PMSC can perform or contribute to an act of aggression by a state, when the conditions of legality of the missions we considered above are not met. This is indeed the position of the ICJ in the Nicaragua case, when dealing with the right of self-defence in customary international law, as reflected by Article 3(g) of the above mentioned 1974 resolution:
The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces. But the Court does not believe that the concept of ‘armed attack’ includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or other support. Such assistance may be regarded as a threat or use of force, or amount to intervention in the internal or external affairs of other States.34
The decision of the ICJ in the Nicaragua case has an impact on the legal characterization of acts that violate ius ad bellum, and that are attributable to a state, ranging (p. 403 ) from armed attack to mere intervention into the internal affairs of a state. According to the Nicaragua decision, a strong relationship—more than mere support—has to exist between the state and the PMSC in order for an armed attack to be attributed to the state. For instance, the case of peacekeeping operations based upon the consent of the territorial state is expressly foreseen in Article 3(e) of the 1974 Resolution of the UN General Assembly: ‘The use of the armed forces of one State, which are within the territory of another State, with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement’35 amounts to an act of aggression. This legal characterization of the aggression depends, as we will see in the next section, on attribution of the acts of PMSCs to the state and on their relationship—that is, whether the state is the contracting state, the territorial state, or the home state. A contrario, in cases where the state is only providing support to the acts of the PMSC personnel—where there is no close relationship between the state and the PMSC—only a threat or use of force, or a coercive intervention in the internal affairs of a State, could be attributed to the state, but not an act of aggression.
It must now be determined to what extent and in what conditions acts of PMSCs violating ius ad bellum can be considered acts of a state so as to trigger its international responsibility.
B. Attribution to the State of Acts of the PMSCs Violating Ius ad Bellum
Two alternative criteria may be used to attribute breaches of ius ad bellum to a state.36 In the first situation, when the PMSC exercises elements of governmental authority, and according to the conditions set up by the ICL Draft Articles, the behaviour of the PMSC is exclusively attributable to the contracting state (1). In the second case, the breach may be attributable to the contracting state, to the territorial state, or to the home state, provided the state either instructs the PMSC to act, or exercises direction or control over it (2).
1. Exercise of Elements of Governmental Authority
The criterion of the exercise of governmental authority is referred to in Article 5 of the ILC Draft Articles on State responsibility.37 The preparatory works of the ILC38 as well as the final commentary on the Draft Articles are useful, as they extensively refer to the case of PMSCs: the entities referred to:
(p. 404 ) may include public corporations, semi public entities, public agencies of various kinds and even, in special cases, private companies…For example, in some countries private security firms may be contracted to act as prison guards and in that capacity may exercise public powers such as powers of detention and discipline pursuant to a judicial sentence or to prison regulations. Private or State-owned airlines may have delegated to them certain powers in relation to immigration control or quarantine.39
For the acts of a PMSC to be attributed to the state, two conditions have to be met: first, the PMSC has to be empowered by the law of the state; secondly, it has to be empowered to exercise elements of governmental authority.
The empowerment of the PMSC by the law of the state is a strict requirement, based upon the strength of the authorization that a sovereign state addresses to private groups through its legislative or executive organs.40 In that respect, it is a widely accepted principle of international law that a state may be held internationally liable for its internal laws and regulations.41 Passing an Act of Parliament or adopting a regulation granting a PMSC the power to exercise part of the governmental authority is therefore the one and only condition necessary to link the future acts of the PMSC to the state. The ‘authorizing’ Act of the state consists in a limited delegation of the exercise of governmental or sovereign powers to a PMSC, which will enjoy a high degree of discretion when acting. Finally, one might wonder whether the internal authorizing Act of the state may be adopted either ex ante or ex post. In the latter case, the Act or regulation could be interpreted as expressing the consent of the state to endorse the acts that had already been perpetrated.42
Secondly, the mandate should authorize the exercise of ‘governmental authority’. This concept is not defined by the ILC, and is expressly left to a case-by-case appreciation. However, in the situations we are dealing with here, which imply the use of force, and given the state-owned nature of defence activities, there is little doubt that the condition of governmental authority would be met. In this context, the fact that PMSC personnel wear arms could be one of the factors to consider. A contrario, in cases where a PMSC carries out a mixed activity (ie military and commercial), only the part amounting to the exercise of governmental authority would be attributable to the state under Draft Article 5. The question then follows of the attribution to the state of ultra vires acts of PMSC personnel whilst exercising elements of governmental authority. As recalled in the Commentary of Draft Article 7 ICL, the rule according to which the conduct of an entity empowered to exercise elements of governmental authority is to be attributed to the state, is a well-recognized customary norm of international law.43 In other words, all acts of the PMSC are to be attributed to the empowering state, if, and only if, these ultra (p. 405 ) vires acts can still be linked to the delegated governmental functions. In this case, the PMSC is treated as if it were an organ of the state.
In practice, as has already been shown in the context of the Priv-war project, the criterion of the existence of a national act empowering a PMSC is problematic. Indeed, H Cherif mentioned in his report a case of arbitration in Papua New Guinea, where the Tribunal refused to interpret the constitutional provision regulating the raising of special forces, which required the prior adoption of an Act of Parliament. In the main, the Tribunal argued that the interpretation of the constitution had to be left to national courts. However, despite the fact that in this case the PMSC had not been previously empowered by an Act of Parliament, the contract was considered valid in international law.44
Our conclusion on the attribution to a state of acts of a PMSC under Draft Article 5 is twofold. First, in terms of the relationship between the PMSC and the state, it appears that acts of a PMSC can only be attributed to the contracting state. As we have demonstrated, the requirements of Draft Article 5 are even stricter, since the state not only has to be contracting with a PMSC, but also has to do so by virtue of its own law. This of course does not exclude the purely practical possibility that the contracting state is also the home state. Similarly one could imagine, in the case of self-defence operations, that the contracting state might also be the territorial state. Secondly, in terms of the legal characterization of the acts of the PMSC, which violate ius ad bellum, it should be stressed that it is only where a PMSC exercises elements of governmental authority that an act of aggression can with certainty be attributed to the state. As we showed in the previous section when examining the definition of an act of aggression, the ICJ considers that mere support by a state to armed groups would not suffice to attribute responsibility for an armed attack to the supporting state. Rather, the actions of the PMSC would need to be on a large scale, and the relationship between the state and the PMSC the strongest possible.45 This strong relationship would be characterized here by the empowering Act or regulation enacted by the state.46
2. Instructions, Direction, or Control
We now turn to the examination of Draft Article 8, which sets up the other criterion for attributing the conduct of a PMSC to a state: instruction, direction, or control—these three conditions being understood as a gradation, from a (p. 406 ) concrete action on the part of the state (giving instructions), to a legal fiction linking acts to a state (directing and controlling troops).
The most straightforward situation falling within the scope of Draft Article 8 is instruction, when the state de facto requires PMSC personnel to adopt certain behaviours in breach of ius ad bellum. An example of this is given in the Commentary of the Article itself, where private persons or groups are recruited by the state and act as ‘auxiliaries’ without being part of the regular forces of the state.
Two international courts have given different interpretations to the criterion of ‘direction and control’ by a state.47 The ICJ first interpreted restrictively the criterion of ‘effective control’ in the Nicaragua case, when examining the activities of military forces in Nicaragua: ‘such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.’48 More than ten years later, in the context of individual criminal responsibility, the International Tribunal for the former Yugoslavia (ICTY) expressly disagreed with the standard set up by the ICJ in the context of state responsibility, considering that ‘The degree of control may…vary according to the factual circumstances of each case.’49 Since then, however, the ICJ has twice confirmed its interpretation of the criterion of ‘effective control’ in order to establish state responsibility; in 2005 in the Case Concerning Armed Activities on the Territory of the Congo,50 and in 2007 in the Genocide case. In the latter case the Court clarified its position: ‘the particular characteristics of genocide do not justify the Court in departing from the criterion elaborated in the Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua…The rules for attributing alleged internationally wrongful conduct to a State do not vary with the nature of the wrongful act in question in the absence of a clearly expressed lex specialis.’51
Then one must ask whether or not ultra vires acts can be attributed to a state. When a state authorizes, directs, or controls the acts of PMSC personnel, but the addressees go beyond those orders or directions, the ultra vires acts can nevertheless be attributed to the state if they remain connected to the mission. Indeed, as the Commentary on Draft Article 8 stresses, an ultra vires act will still be attributable to the state, although ‘particular instructions may have been ignored’.52
(p. 407 ) In considering the relationship of the state to the PMSC, the criterion of instruction, direction or control can apply in order to attribute PMSC acts to the territorial state and the home state as well as to the contracting state.53 On the other hand, however, the legal characterization of attributable acts is more restricted. Indeed, as has already been demonstrated when examining the definition of acts of aggression54 and the exercise of elements of governmental authority,55 in order to attribute to the state PMSC acts that would qualify as an armed attack, a strong relationship between the state and the PMSC is needed, mere control by the state not being sufficient. It is thus very unlikely that acts of a PMSC amounting to acts of aggression could be attributable to a state under the criterion of instruction, direction, and control. Accordingly, where a state simply supports the actions of a PMSC, it would be possible to attribute to that state a threat or use of force, or an intervention in the internal affairs of a state but not an act of aggression.
In conclusion, the establishment of state responsibility for acts of PMSCs violating ius ad bellum stricto sensu is subject to very strict conditions. First, a violation of ius ad bellum has to be ascertained, which can prove rather difficult in situations where it is claimed to be abiding with the conditions of lawful self-defence operations, peace operations, or humanitarian interventions.
Secondly, the acts violating ius ad bellum have to be attributed to a state under one of the alternative criteria set up by Draft Articles 5 and 8 ICL. As we have just demonstrated, the range of states (contracting, home, or territorial) to which the acts can be attributed, as well as the legal characterization of the breaches of ius ad bellum, are highly variable according to the concrete situation at hand. It follows from this that state responsibility for acts of PMSCs violating ius ad bellum should also be looked at lato sensu, from the perspective of the existence of an obligation of due diligence imposed on the state. In such a case the international wrongful act attributable to the state would no longer be a breach of ius ad bellum in the sense discussed above, but could rather be characterized as a breach of an extended ius ad bellum embracing a positive obligation not to allow PMSCs to commit acts amounting to violations of ius ad bellum.
II. State Responsibility for a Breach of Due Diligence and Duty to Regulate
It is argued here that the public international law prohibition on using force in international relations necessarily imposes on states a series of positive obligations. From an international law perspective, this obligation is encompassed in the notion of due diligence (A). From a national perspective, and taking into account the (p. 408 ) public international law principle of good faith, it is necessary for the state to take steps in domestic law in order to ensure ius ad bellum is respected (B).
A. A Breach of the Due-diligence Obligation
As an illustration, let us assume that a PMSC, X, is contracting with a rebel group operating from state A to participate in hostilities against state B. X participated in an attempted coup against the political leader of state B. The rebel group and X's forces ambushed the presidential convoy during a visit of the leader of state B in a district close to the frontier with state A. The head of state of state B was not killed; however 15 soldiers were killed and 30 wounded. We know Article 2(4) of the Charter of the UN prohibits the threat or use of force against the territorial integrity or political independence of any state.56 Suppose that the PMSC in question is present on the territory of state A but is incorporated and having its principle place of management in another state. In sum, state A had no direct control or involvement in the activities of X. Then, under which circumstances and on what grounds could the above act constitute a breach of an international norm? Could this breach be attributed to state A? Could the state of incorporation or any other state also be held responsible for the abovementioned private acts? Did those states fail to abide by their duty to protect state B?
1. Identifying the Due-diligence Principle
The International Law Commission has discussed at length the question of state responsibility with regards to the activities of private persons. For instance, in its commentaries on the Draft Articles on State Responsibility, and under the influence of Roberto Ago, the ILC stated in 1975 that:
The strictly negative conclusion reached regarding the attribution to the State of the acts of private natural and legal persons and of the other persons…does not imply, however, that the State cannot incur international responsibility for such acts on other grounds….A State has often been held internationally responsible on the occasion of acts or omissions whose material perpetrator was a private natural or legal person who, on that occasion, was not acting on the State's behalf.57
Depending on the particular facts and circumstances of a case, a ‘failed act’ or omission of state authorities may constitute a breach of what had been lawfully (p. 409 ) expected of them with regard to the activities of persons or companies over which state organs have regulatory power.58 In other words, thanks to what is called the due-diligence principle under international law, a state may be held accountable for prima facie private acts that cannot be directly attributed to a state. Simply stated, the due-diligence obligation is then ‘the degree of care…expected of a good government’.59 The principle is based on general international law and can be applied to several facts and circumstances. In our case, however, more specific provisions of international law can also be appropriate when determining the due-diligence obligations regarding PMSCs' activities.
The first main international decision stating the due-diligence principle was taken in the Island of Palmas case. In the opinion of the sole arbitrator, Max Huber, territorial sovereignty has as a corollary duty ‘the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war’.60 Among several decisions on the issue, the ICJ, in the famous Corfu Channel case, also stated ‘every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’ as a general and well-recognized principle, linked to ‘elementary considerations of humanity, even more exacting in peace than in war’.61 The protection of the rights of other states does not mean that every state incurs responsibility simply because the rights in question are disregarded. Nonetheless, focusing on the violation of the Convention on the Prevention and Punishment of the Crime of Genocide, the ICJ recalled that ‘responsibility is however incurred if the state manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide’.62 Due to the separation between international and national legal orders, and because the former cannot directly rule the latter, it is necessary to attribute to the state all that happened in the domestic order from the moment that the state in question could have prevented the damage caused to another sovereign.
Nowadays, the due-diligence principle is often invoked with regards to environmental harms and, since 9/11, to the failure to prevent terrorist activities taking (p. 410 ) place within a state's territory.63 Back to our case study, it means that state A may be held accountable for a breach of the due diligence principle because PMSC X had planned to perpetrate a coup from the territory of state A. General international law requires from state a kind of ‘obligation de s'efforcer’ to prevent any attack from its territory on state B.64 As Pierre-Marie Dupuy has stated, ‘what counts here is the violation of the best effort obligation, not the end result actually achieved’.65 If one can establish, for instance, that state A had the means to regulate activities of PMSC X, the breach would be manifest.66
International law may be relevant in certain scenarios involving the use of PMSCs even though a customary prohibition of the use of mercenaries cannot be easily established. It is therefore interesting to explore whether any international agreements contain an obligation to prevent that could be applicable to our case or to other private misconducts. For instance, considering the responsibility of the home state or of the state in which the company operates from, the law of armed conflict could be seen as implicitly prohibiting mercenary activities on the territory of neutral powers.67 If a PMSC operates from the territory of a neutral power and participates from this territory in hostilities between belligerents, the responsibility of the neutral power may be engaged for a violation of an obligation to ‘not allow any of the acts referred to in Articles 2 to 4 to occur on its territory’, based on Article 5 of the 1907 Hague Convention V.68 At least two other texts may be helpful in this context: Article 3 of the Convention on the Protection and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents; and Article 15 of the International Convention for the Suppression of Terrorist Bombings.69 However, there is a lack of relevant jurisprudence that (p. 411 ) illustrates the practical application of the above provisions. The violation of the obligation of due diligence could be based on particular international laws related to PMSCs or more generally to terrorist activities. Among the rare treaties on the issue, there does not seem to be any relevant Article on the due-diligence principle.70 The Montreux Document appears more appropriate in this regard, but ‘is not a legally binding document’.71 Therefore, to date, any allegation of a violation of its terms is irrelevant—except when it restates pre-existing human rights and international humanitarian law obligations.72 The same could be said for two other draft conventions: the Draft International Convention on PMSCs, elaborated in 2008, and the Draft International Convention on the Regulation, Oversight and Monitoring of PMSCs, proposed in 2009.73
2. Applying the Due-diligence Principle
The concrete application of the due-diligence principle may not be an easy task, given the relative vagueness of the obligation. Whether the breach is based on general international law or on rare but appropriate treaties, the lack of vigilance of a state remains to be proven. The plaintiff would have to show evidence that a state failed to act with due diligence regarding the activities of a PMSC, and such evidence might be hard to obtain. What is concretely expected from a ‘well governed’ state with regards to the PMSCs operating on its territory or incorporated under its laws? How does one reveal any failure?
There is a lack of relevant case law regarding due diligence within the ius ad bellum or ius contra bellum corpus. In any case, the due-diligence principle calls for an assessment in concreto.74 In the Corfu Channel case, the ICJ assessed that even considering the reality of ‘exclusive territorial control’, the territorial state need not (p. 412 ) necessarily know that private actors are likely to commit unlawful acts.75 In sum, the international judge or arbiter would have to assess the facts and circumstances of each allegation. The position would depend upon a precise analysis of which norms apply in each case, and it is clear that there are not many specific norms concerning the relationship between states' policies and PMSCs. One would have to compare the content of the general or particular norm in question with both the wish and the means of a state to act, and take into account—but not decisively—whether the acts occur on the territory of the state in question. There has recently been, for instance, much debate about the Taliban government of Afghanistan's inaction concerning Al-Qaeda training camps or Lebanon's inaction vis-à-vis Hezbollah activities.76
In sum, the riskier the situation in which PMSCs are tolerated, the stronger due-diligence obligation for the territorial state is. In our case study, one would probably consider that state A should have known the activities of PMSC X, a fortiori in a troubled area where rebel groups are supposed to be carefully monitored. Any PMSC which aims to participate in hostilities needs to import military equipment, money, or personnel, and it is doubtful that the state whose territory hosts the PMSC and the preparation of an attack could ignore it. In any event, if it cannot act to effectively control the PMSC's activities, it has a duty to inform the other state(s) which may be the target of an attack. The home state should also be aware of any large operation that its PMSCs are dealing with. Moreover, going beyond due diligence stricto sensu, the more general principle of the responsibility to protect could also imply, as a corollary, a duty to sanction any abuses actually that would have happened.77 Suppose, for instance, that the state where the acts occurred had refused to investigate on the facts or refused to prosecute the authors (and on appropriate grounds), the state would also have violated its obligations to prosecute and punish—based upon appropriate personal or territorial jurisdiction, universal jurisdiction or on the aut dedere aut prosequi rule.78 The European Court of Human Rights has found that states can be held responsible for their failure to conduct a proper investigation regarding violence perpetrated by private actors.79 Therefore, both the home and territorial states should be considered in a position to prosecute PMSCs as such or individuals that would be accused of grave misconducts. After all, general prevention is one of the main objectives of any justice (p. 413 ) system and this applies equally when a rebel group or a PMSC plans to commit an armed attack against a state.
To conclude, the due-diligence principle in international law must not be considered an empty legal concept because of its vagueness. Regarding PMSCs' activities and particularly their direct participation in hostilities, the obligation to prevent has a role to play in holding states responsible in relation to private acts that were at least tolerated by the home state or the territorial state. In this field, however, the due-diligence principle is so far mainly based on general international law. Considering the subjectivity of the due-diligence test, it may be appropriate for every state to adopt good practices or precautionary measures vis-à-vis PMSCs that are operating on their territory, with their nationals, or that are incorporated in their jurisdiction. For instance, one would think of a system of ex ante licences for the creation and operations of PMSCs or the creation of authorization and monitoring procedures for exporting any PMSCs services.80 The good state practices identified by the Swiss Initiative may be helpful but they are not exhaustive.81 In any case, due diligence should be seen as an appropriate tool to encourage more regulation and lead to less abuse.
B. A Breach of an Obligation to Regulate in the National Legal System
We will now turn to drawing the consequences of the above demonstration in terms of the domestic law of the state. Indeed, we first established the conditions for holding a state responsible for the acts of PMSCs violating ius ad bellum. It was then showed how the principle of due diligence in public international law imposes positive obligations on both territorial and home states in order to ensure that the prohibition of the use of force in international law is respected by the PMSCs.
For the sake of consistency, it necessary that a state take the appropriate steps in its internal legal order to ensure the respect of its international obligations. In the context of state responsibility for the acts of PMSCs violating ius ad bellum, the state is therefore bound to prohibit, in its domestic order, the perpetration of any violation of ius ad bellum by private actors. Such uniform law provisions, accompanied with more precise obligations of the states, could eventually lead to establish state responsibility for the lack of domestic regulation leading to the perpetration of such acts by the PMSCs. It is not the aim of this chapter to address individual criminal liability. Although the natural setting of such a domestic regulation is (p. 414 ) domestic criminal law, we will only focus here on the state duty to regulate, as the necessary corollary of its obligation to ensure that the prohibition of the use of force in public international law is complied with.82
1. Prohibiting in the National Legal Order any Violation of Ius ad Bellum by PMSCs
It is held here that as soon as an obligation to prevent and repress crimes of private actors arises in international law, it necessarily implies that the state should enact a criminal law prohibiting this specific activity in its national legal order and providing jurisdiction to its organs, in order to fulfil its international engagements. Although both elements would be provided for in the same national legal instrument, the substantive norm will be distinguished from the competence norm83 in this exposé.
From the substantive perspective, the national legal order should be compatible with the state's international obligations, and more precisely, with the obligation to prevent and repress international crimes. As the Permanent Court of International Justice (the PCIJ) said in a well-known advisory opinion, a state which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligations undertaken.84 It certainly does not stem from this, that a state may be held responsible at an early stage, for not bringing his national legal order into conformity with his international obligations. It is however clear that, in some situations, international law requires the state to take positive steps, for example, when the only way to respect the international obligation implies the enactment of a specific norm, or when such an enactment is clearly required by a written instrument such as a uniform law treaty. Therefore, a substantive norm of the domestic legal system prohibiting crimes recognized in international law, participates in the fulfilment of a state's international criminal obligations. Admittedly, this obligation goes beyond a simple obligation to prevent and repress. Uniform law obligations must also be consistent with international criminal law. Indeed, in a legally constituted state, a criminal penalty can never be applied to a subject of domestic law without a specific provision of the law commending it. This derives from the nullum crimen sine lege principle, which is also recognized as a general principle of international law.
Furthermore, this obligation to enact a kind of uniform criminal law could arise from the ius cogens nature of the prohibition of certain behaviours. We can easily imagine that if the obligation to prevent and repress private actors' acts were attached to a ius cogens prohibition, this would further result in a positive (p. 415 ) obligation for states to put their national legal orders in conformity with it.85 This appears particularly clearly from the words of the ICTY in the Furundjiza case, regarding the prohibition of torture. It was indeed asserted that: ‘States are bound to put in place all those measures that may pre-empt the perpetration of torture.’86 This interpretation undoubtedly derived from the gravity of the crime of torture, and the ius cogens nature of its prohibition.
We now turn to apply the above reasoning to the prohibition of the use of armed force. It is clear that states should have enacted a criminal law prohibiting the use of armed force to their nationals and/or residents, in order to be in position to repress such a crime. For instance, armed attack is recognized as a crime in international law, as suggested in UN General Assembly Resolution 3314.87 Moreover, according to Article 5 ICC Statute, armed attack is a potential crime entering the competence of the Court. In contradistinction with the obligation to prohibit torture, no written rule on the obligation to prohibit the use of force in international relations by private actors is entrenched in a conventional instrument. Approximating rules can nevertheless easily be found in other instruments, as it is the case regarding the prohibition of mercenarism. To give an example, the OUA Convention imposes an obligation on states to prohibit, not only in the civil branch but also in the criminal sector, since: ‘Each contracting State shall undertake to make the offence defined Article 1 of this Convention punishable by the severest penalties under its laws including capital punishment.’88 Similarly, the UN Convention on Mercenarism, reads that states ‘shall make the offences set forth in the present Convention punishable by appropriate penalties which take into account the grave nature of those offences’.89 The obligation to prohibit is, here again, inducted by the importance of the prohibition itself, which is not under discussion regarding the ius ad bellum primary rules.
The principal hurdle in our case is the difficulty for states to agree upon a precise definition of armed attack, especially after the 9/11 events. Indeed, how could it be (p. 416 ) possible to press states to put their national legal order into conformity with international law, when international law itself may have appeared unclear? This obstacle may be overcome. First, it cannot be said that there is a total lack of definition of aggression in international law, since the very aim of Resolution 3314 (XXIX) of the UN General Assembly is to attempt to provide one.90 However, there is no denying the fact that an international tribunal cannot be competent to prosecute a crime until an agreement between states parties on a very precise definition of it has occurred: the international nature of this jurisdiction derives from the will of its states parties. This does not, however, affect the binding effect of the prohibition of the use of armed force on states themselves, or their subsequent duty to prevent violations of ius ad bellum—be it in the form of armed attacks against other states by their nationals, and/or from their territory. Simply, the definition of the crime they have to prosecute at a national level is not internationally set, and states—and more precisely their parliaments—are free to provide one of their own, as long as it is compatible with the few existing international guidelines. It is thus only a question of measure, and although it is not possible to identify a real uniform-law obligation binding states to unify their laws on a precise model, it can still be defended that states have to harmonize their national criminal legal orders with the international prohibition of using armed force in international relations. This illustrates the distinction between an obligation to unify and an obligation to harmonize.91
Going back to the specific issue of PMSCs, the question arises whether states do need to prohibit the violations of ius ad bellum for PMSCs in particular, or whether these private companies would simply fall into the scope of the criminal law that states should already provide for, according to their general duty to implement in their domestic system international law obligations to prosecute and punish breaches of ius ad bellum. If states have to prohibit the international illicit use of force in their national legal systems, do PMSCs fall in the scope of these legislations? A difficulty may arise from the possible military status that could be granted by some states to those companies.92 Indeed, such a qualification would exclude the criminal liability of the companies and their personnel, even in the case of direct participation in an armed attack against another state.93 State responsibility for the violation of the ius ad bellum does not only include the use of force attributable to the state itself. Even if the use of force is attributable to the state, the latter must still (p. 417 ) prosecute among its organs, delegated or controlled entities, those who are personally responsible for the international crime.
To conclude, on the obligation for states to prohibit the use of armed force by PMSCs, no internationally binding instrument specifically refers to those companies, although written obligations to prohibit exist on related matters. One could argue that an international customary rule could gradually arise from the state's domestic prohibition of the use of armed force by PMSCs, since many states actually prohibit such behaviour.94 However, as already shown, no uniform states practice can be identified at present on this matter. Only international instruments without any binding force are clearly following this path, for example, the Montreux Document95 and the Draft International Convention on the regulation, oversight and monitoring of PMSCs.96
2. Uniform-law Obligations: Going Further
A new question arises at this stage of our study: which is the competent state to prosecute those crimes? And is this issue regulated by international law? After having answered these questions, this chapter will examine whether new obligations related to ius ad bellum and regarding the national regulation of PMSCs could be directed to specific states.
On the question of state competence to prosecute the crimes connected to the use of force by PMSCs, no clear-cut solution is possible, since international law only urges states not to let those crimes go unpunished. Some could have accepted their jurisdiction on a universal basis, even without personal or territorial link to the case, as soon as the alleged criminal is found on their territory, as is the case for torture for instance.97 In any case, usually, the conflicts of competences at stake remain in a latent form. In sum, it is as if the maxim ‘the more the merrier’ could apply to this issue. One knows that states are often very jealous of their jurisdiction, (p. 418 ) as shown by the affairs involving Belgium and the Congo.98 We could imagine that international law would forbid states from granting immunity to an alleged criminal but it is improbable that international law could go any further and oblige states to provide for specific competence norms in their national legal order. Needless to say, no uniform-law obligation can be found in those questions of jurisdiction, which are, as part of the constitutional organization of states, left at their total discretion. The obligation to prosecute may give birth to an obligation to prohibit the said crime in the national legal order in a substantive way, but it is difficult to foresee how any obligation to regulate national competence rules could arise from it. International law does not aim at regulating states' competence, but only its exercise.99
If no uniform law on competence can be found, are there, nevertheless, specific rules which could solve the problem sketched above? In other words, if international law does not attempt to regulate states' jurisdiction, is there any rule aiming at regulating the legal framework of PMSCs? Until now, we have only showed the existence of a general obligation to prohibit certain behaviour, an obligation which is not directed to any state in particular. Since then, conflicts of jurisdiction between concerned states, or even lack of jurisdiction, are likely to occur. The violations of ius ad bellum are not necessarily considered crimes in international law. Nonetheless, states still have to prevent those acts committed by private actors. Then, specific uniform-law norms, going beyond the prohibition of crime of aggression, could be very useful to construe ius ad bellum as a whole. Needless to say, nothing of this kind could currently exist in international customary law, since problems arising from the use of PMSCs are too new. Nevertheless, clues could be given by the existing international conventions, even if they do not exactly refer to private companies and focus instead on mercenarism. The aforementioned Montreux Document often confirms these considerations as regards the PMSCs. From these several dispositions, directives for a more precise uniform law instrument could arise. States would still have to agree upon them at a second stage, in order to be bound to put their national legal orders into conformity with them.
Regarding contracting states, it is hard to find any obligation above a general prohibition on using PMSCs in order to violate the ius ad bellum. A criterion for the contracting state should be that the PMSC should not be aiming at violating the rules on lawful use of force. The interest of this criterion is that responsibility could arise from the mere fact of concluding a contract with a PMSC in order to violate international law, with no need to wait for any concrete armed attack. Concerning the home state, specific obligations could be put on them when they are neutral, according to the Hague Convention on Neutral Powers.100 Article 4 of this treaty (p. 419 ) forbids the formation of combatants and even more precisely the opening of ‘recruiting agencies on the territory of a neutral Power to assist the belligerents’. Before any concrete violation of the ius ad bellum by a private company, a neutral state should be held responsible for the mere incorporation of a company of this kind in his territory and, even before that, for the mere fact that its national legal order allows such an incorporation. This is also true for states contracting with mercenaries, according to the OUA Convention. In any case, home states should ‘harmonise their authorisation system and decisions with those of other States and taking into account regional approaches relating to authorisation systems’.101 We can easily infer from this that a uniform private law on companies should be adopted by way of an international convention. It should be directed to home states in order to determine which activities a PMSC has the right to propose and the authorizations it must obtain.102 In the perspective of the prevention of violations of ius ad bellum, this uniform-law obligation can be seen as part of the ius ad bellum binding upon home states.
Territorial states have also duties deriving from the Hague Convention when they belong to the category of neutral power. Indeed, since belligerents are forbidden by this treaty ‘to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power’,103 a neutral state has to prohibit PMSCs from acting from its territory and needs probably to bring its legal order into conformity with this obligation. This does not seem, however, to further the obligation to prohibit the use of force in international relations, that we evidenced above.
With the benefit of hindsight, the issue of state responsibility for the acts of PMSCs violating ius ad bellum entails a twofold conclusion.
On the one hand, when examining ius ad bellum stricto sensu, the main issue rests in attributing to the state PMSC behaviours amounting to violations of ius ad bellum. From this perspective, and in concrete terms, we have shown that as far as Article 5 of the ICL Draft Articles on State Responsibility is concerned such acts of a PMSC can only be attributed to the contracting state, provided the PMSC is exercising elements of governmental authority of the contracting state by virtue of its own law. In terms of the legal characterization of the acts of the PMSC, we also stressed that it is only in the situation where a PMSC exercises elements of governmental authority that an act of aggression can with certainty be attributed to the state. From the perspective of attribution to the state of PMSCs' acts (p. 420 ) violating ius ad bellum under Article 8 of the ICL Draft Articles, we concluded that the contracting, the territorial, and the home states may face responsibility in appropriate circumstances. However, the legal characterization of the attributable acts is more restricted in this case; whereas an armed attack would be very hard to attribute to the states under Article 8 criteria, it is more likely that that states could be held responsible for a threat or use of armed force, or a coercive intervention in the internal affairs of a state.
On the other hand, it is suggested here that state responsibility ought to be considered under the prism of ius ad bellum defined lato sensu—that is, embracing a positive obligation not to allow PMSCs to commit acts amounting to violations of ius ad bellum. Building upon the principle of due diligence, as set by general public international law as well as some specific instruments, it has been shown that states should be bound by an obligation to prevent PMSCs from committing acts amounting to violations of ius ad bellum, either within or from their territories. It has been acknowledged that the international judge or arbitrator would have to operate his review on an ad hoc basis, according to law applicable to the specific case put before him. It has also been submitted that, because of the subjectivity of the due-diligence test, states should adopt good practices or precautionary measures vis-à-vis PMSCs, in order to prevent acts that could amount to violations of ius ad bellum. The second stage of the study of state responsibility under ius ad bellum lato sensu, consisted in examining the positive obligation of states to regulate PMSCs in their domestic legal orders. It has indeed been shown that states can be considered bound by an obligation to harmonize their domestic legal orders according to the general prohibition of the use of armed force in international relations, although there is no clear consensus between states on the definition of aggression. From the perspective of the competence of states to enforce such national acts aiming at regulating PMSCs' activities in respect of ius ad bellum, no uniform law could be identified. However, drawing from existing specific instruments applicable to either the contracting, territorial, or home state, it has been submitted that such uniform law is likely to be incrementally generated by state practice in the coming years, when the PMSC phenomenon will be better grasped and more comprehensively governed by international law.
(1) This chapter aims at exploring state responsibility for the acts of PMSCs and will therefore not address the issue of individual criminal responsibility of the PMSCs and their personnel. For such an approach, see below, Part V of the present volume.
(2) UN International Convention against the Recruitment, Use, Financing and Training of Mercenaries, Art 16.
(3) For an approach of state responsibility in regional international law on mercenaries, as crystallized under the patronage of the Organization of African Unity, see Ch 16 by Mancini, Ntoubandi, and Marhaun in this volume.
(5) See the Introduction by Francion and Ronzitti in this volume.
(6) ‘Montreux Document’, Swiss Initiative, in Cooperation with the International Committee of the Red Cross, on Private Military and Security Companies, 17 September 2008 (Preface, a. 9). For a comment, see, inter alia, J Cockayne, ‘Regulating Private Military and Security Companies: The Content, Negotiation, Weaknesses and Promise of the Montreux Document’ Journal of Conflict and Security Law 13 (2008) 10.
(7) We will extensively refer to the Draft Articles on State Responsibility of the International Law Commission (hereafter, ‘the Draft Articles’), endorsed by the UN General Assembly in its Res 56/83 of 28 January 2002. But we will generally prefer the text of the Draft Articles with Commentaries, as published in the Yearbook of the International Law Commission, 2001, vol II, Part Two, 30–143.
(9) Art 2(4) of the UN Charter.
(11) The related literature is obviously too dense to be recalled here in its entirety, but we cite the following selection: the two courses given by Wehberg at the Hague Academy of International Law, before and after the entry into force of the UN Charter. See H Wehberg, ‘Le Problème de la Mise de la Guerre hors la Loi’ (1928-IV) 24 RCADI 151–305; and H Wehberg, ‘L'interdiction du Recours à la Force. Le Principe et les Problèmes qui se Posent’ (1951-I) 78 RCADI 7–121. For more recent approaches, see also M Virally, ‘Commentaire de l'article 2§4 de la Charte’ in J-P Cot and A Pellet (eds), La Charte des Nations Unies, Commentaire Article par Article, 2nd edn (1991), 115–28; N Schrijver, ‘Commentaire de l'article 2§4 de la Charte’ in J-P Cot, A Pellet, and M Forteau (eds), La Charte des Nations Unies, Commentaire Article par Article, 3rd edn (2005), 437–66; A Randelzhofer, ‘Article 2.4’ in B Simma (ed), The Charter of the United Nations: A Commentary, 2nd edn (2002), 112–36; O Corten, ‘The Controversies over the Customary Prohibition of the Use of Force: A Methodological Debate’  EJIL 803–22.
(13) We consider self-defence to be the only exception stricto sensu to Art 2(4) of the UN Charter. This core concept of the law of international security is nevertheless difficult to reconcile with the international law of state responsibility. In its Draft Articles, the ICL eventually decided to consider self-defence a circumstance precluding wrongfulness: a secondary norm of international law, in the sense of HART's Concept of Law (cf Draft Art 21, 74–5). However, as Art 51 of the UN Charter states, self-defence is a right of the state, this is, a primary rule of international law. We therefore respectfully disagree with the choice of the ICL, though acknowledging the difficulties of the exercise, and would stress that self-defence is no mere excuse for the use of force: it is never a wrongful act of the state.
(14) ICJ, Advisory Opinion of 8 July 1996, Legality of the threat or use of nuclear weapons, Advisory Opinion, ICJ Rep 1996, §96, 263.
(15) Art 24(1) of the UN Charter.
(16) Military and paramilitary activities in and against Nicaragua (Nicaragua v United States of America), Merits, Rec 1986, §176, 94 and §237, 122, ICJ (27 June 1986).
(18) Indeed, Art 24(1) of the Charter grants the UN Security Council the primary responsibility to maintain international peace and security, and Chapter VII resolutions benefit from the primacy of Art 103 of the UN Charter.
(19) The troops are made available on an ad hoc basis, unlike Art 43 of the UN Charter provides. Art 43 has never been implemented because of the reluctance of the UN members to conclude the planned ‘special agreements’ with the Security Council, which would have made troops available on a more permanent basis.
(20) Here again, we acknowledge the ongoing debate on the legality of ex post facto and implicit authorizations from the UN Security Council, without actually entering the discussion.
(21) A/47/277–S/24111, 17 June 1992, An Agenda for Peace Preventive Diplomacy, Peacemaking and Peace-keeping, §20.
(22) A/50/60–S/1995/1, 3 January 1995, Supplement to an Agenda for Peace: Position Paper of the Secretary General on the Occasion of the Fifteth Anniversary of the United Nations, §33.
(23) In this very case, note that self-defence does not refer to the right of the state, but to the right of the individual involved in fighting. This case goes beyond the scope of this chapter and we will not develop it further. Note that it is dealt with in terms of the right to life of PMSC contractors in Ch 9 by den Dekker and Myer in this volume.
(24) In this case, the breach of ius ad bellum amounts to an ultra vires act.
(25) We acknowledge here the problem of the linguistic differences between the English and French versions of the Charter, which refer in the former to ‘armed attack’ (Art 51) and ‘aggression’ (Arts 39) and in the latter only to ‘aggression’ (Arts 39 and 51), and will therefore consider both terms to be identical for the purposes of this chapter.
(26) Doc A/51/10, Report of the International Law Commission on the Work of its 48th Session, 6 May–26 July 1996, UN GAOR, 51st Sess, Supp no 10, Art 16, 42–3.
(27) ICC Doc ICC-ASP/7/20/Add1, Assembly of States Parties, Report of the Special Working Group on the Crime of Aggression, 30.
(28) RC/Res 6, ‘The Crime of Aggression’, adopted at the 13th plenary meeting, on 11 June 2010, by consensus. Advance version 28 June 2010 available at 〈http://www2.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf〉, accessed on 20 August 2010. It falls out of the scope of this chapter to examine more than the definition of the crime of aggression. We will therefore only stress that the Resolution on the Crime of Aggression also states that there are two triggers to the jurisdiction of the Court: a referral by the Security Council, or a referral by a state or the prosecutor. States parties may opt out of the crime of aggression by declaration, and the ICC will not have jurisdiction over nationals of non-states parties. The jurisdiction over the crime of aggression may be activated from 1 January 2017. Finally, the amendments will be reviewed seven years after the beginning of the Court's exercise of jurisdiction. For further insight on the negotiations leading to the adoption of Art 8 bis, see the report by the American non-Governmental Organizations Coalition for the International Criminal Court, Report on the Review Conference of the Rome Statute of the International Criminal Court, Kampala, Uganda, 31 May–11 June 2010, 〈http://www.amicc.org/docs/RC.pdf〉.
(29) For a recent critique of the crime of aggression and on its potential repercussions in terms of controversial uses of force, cf A Paulus, ‘Second Thoughts on the Crime of Aggression’ in (2009) 4 European Journal of International Law 1119–24.
(30) Res 3314(XXIX), Definition of Aggression, 14 December 1974, Annex, Art 1.
(33) As expressed by F Francioni, ‘The Responsibility of the PMSCs Home State for Human Rights Violations arising from the Export of Private Military and Security Services’, EUI Working Paper, AEL 2009/18, Academy of European Law, Priv-War Project, 11.
(38) A/CN4/246 and Add1–3, ‘Third Report on State responsibility, by Mr Roberto Ago, Special Rapporteur, the Internationally Wrongful Act of the State, Source of International Responsibility’ in Yearbook of the International Law Commission, 1971, vol II, 278–80.
(40) Previous work of the ICL shows that a looser link than an actual legislative act or regulation has been considered to attribute the acts of private persons to the state, provided that the missions had been given by public authorities: cf A/CN4/246 and Add1–3, ‘Third Report on State Responsibility, by Mr Roberto Ago’ (n 38 above), 79–80.
(41) Certain German Interests in Polish Upper Silesia, PCIJ, Merits, Series A, no 7 (25 May 1926), 19.
(42) United States Diplomatic and Consular Staff in Tehran, ICJ Rep 1980 (24 May 1980), 35, §74.
(44) H Cherif, ‘A Brief Analysis of the Case Law Relating to Private Military Companies and Mercenaries: Filling or Revealing the Lacunae through Jurisprudence’, 14, Report produced in 2009 in the context of Working Package no 3 of the Priv-War project.
(45) See section I.A.2 above.
(46) It goes beyond the scope of this study, which is focused on the violations of ius ad bellum, to address the question of state responsibility for human rights violation and protection. Cf Francioni (n 33 above), 6–8, 13, and C Bakker, Private Military and Security Companies: Positive Human Rights Obligations of the Host State, EUI Working Paper, AEL 2009/20, Academy of European Law, Priv-War Project, 17.
(47) The ICL chose to consider that instruction, direction and control are disjunctive conditions, although international Courts have treated ‘direction and control’ as a single condition.
(49) Prosecutor v Dusko Tadić, IT-94-1-A (1999), ILM, vol 38, no 6 (11 November 1999), 1541, §117.
(50) Armed activities on the territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Rep 2005 (19 December 2005), 56, §160.
(51) Application of the convention on the prevention and punishment of the crime of genocide (Bosnia and Herzgovina v Serbia and Montenegro), Merits, ICJ Rep 2007 (26 February 2007), 143, §401. See also 142–9, §396–412.
(54) See section I.A.2 above.
(55) See section I.B.1 above.
(56) See section I above.
(57) ‘The acts of private persons or of persons acting in a private capacity then constitute…an external event which serves as a catalyst for the wrongfulness of the State's conduct’: Yearbook of the International Law Commission, 1975, vol II, A/CN4/SERA/1975/Add1, 71, §§4–5. See, inter alia, Arts 11 and 23 of the Draft Articles on State Responsibility adopted in 1996, Report of the International Law Commission on the work of its forty-eighth session, A/51/10, 1996. On the evolution of the Draft Articles, from 1996 to 2001, see J Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (2002), 422 (introduction). See also P-M Dupuy, ‘Reviewing the Difficulties of Codification: Ongo's Classification of Obligations of Means and Obligations of Result in Relation to State Responsibility’ (1999) 10(2) EJIL 371–85.
(58) See eg RP Barnidge, ‘The Due Diligence Principle under International Law’, (2006) 8 International Community Law Review 81–121; R Pisillo-Mazzeschi, ‘The Due Diligence Rule and the Nature of the International Responsibility of States’, (1992) 35 German Yearbook of International Law 9–51 or L Condorelli, ‘L'imputation à l'Etat d'un Fait Internationalement Illicite: Solutions Classiques et Nouvelles Tendances’ (1984) 189 RCADI 9–221.
(60) Permanent Court of Arbitration, award of 4 April 1928 (M Huber), Arbitral award rendered between the United States of America and the Netherlands, relating to the arbitration of differences respecting sovereignty over the island of Palmas (or Miangas), RIAA, vol II, 839. See also Trail Smelter Arbitration (US v Canada), 1941, RIAA, vol III, 1905.
(61) Corfu Channel Case, ICJ Rep 1949 (9 April 1949), 22. See also United States Diplomatic and Consular Staff in Tehran (n 42 above), 32 and Case Concerning Armed Activities on the Territory of the Congo (n 50 above), §179.
(64) See J Combacau, ‘Obligations de Résultat et Obligations de Comportement. Quelques Questions et pas de Réponses’ in Mélanges Paul Reuter. Le Droit International: Unité et Diversité (1981), 582, 181–204. According to R Pisillo Mazzeschi, ‘dans les obligations de due diligence, le résultat visé est trop aléatoire pour être pris comme l'objet de l'obligation. Cela explique pourquoi, dans ce cas, on ne peut exiger de l'obligé qu'un comportement particulier, un effort particulier, sans aucune garantie d'atteindre un résultat précis. Et cela explique, par conséquent, pourquoi l'obligé n'est responsable que si l'on démontre qu'il n'a pas usé de la diligence requise pour atteindre le résultat’: ‘Responsabilité de l'Etat pour Violation des Obligations Positives Relatives aux Droits de l'Homme’ (2008) 333 RCADI 175–506, 285.
(66) See below.
(67) See the Convention Regarding the Rights and Duties of Neutral Powers and Persons in Case of War on Land, The Hague, 18 October 1907, USTS 540, 2 AJIL Supp 117, and the analysis proposed in Ch 16 by Mancini, Ntoubandi, and Marauhn in this volume.
(69) Convention on the Protection and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, signed in 1973 and entered into force in 1977. Art 3 states that parties shall take ‘all practicable measures to prevent preparations in their respective territories for the commission of those crimes within or outside their territories’. International Convention for the Suppression of Terrorist Bombings was adopted in 1997 (UN Res 52/164) and entered into force in 2001. Art 15 affirms that ‘States Parties shall cooperate in the prevention of the offences set forth in article 2, particularly: (a) By taking all practicable measures, including, if necessary, adapting their domestic legislation, to prevent and counter preparations in their respective territories for the commission of those offences within or outside their territories…’.
(70) Regarding the Organization of African Unity (the OUA) Convention for the Elimination of Mercenarism in Africa, which entered into force in 1985, the provisions are far too restrictive to be the basis of an obligation to prevent the acts described above. Regarding the UN International Convention against the Recruitment, Use, Financing and Training of Mercenaries which entered into force in 2001, the Convention does not deal with PMSCs as such and the definition of mercenarism it provides is not workable here.
(72) The Montreux Document addresses substantive legal concerns such as the authorities' duty to monitor and screen the actions of PMSCs for potential breaches of international law, even if the text focuses on international humanitarian law and human rights. See eg ‘Montreux Document’ (n 6 above), §§ 6, 10, 12, 15, 17, 21.
(73) International Convention on Private Military and Security Companies, elaborated by the experts for Regional Consultation for Eastern European Group and Central Asian Region, in Moscow, held 16–18 October 2008 and Draft International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies, Working Group on the use of mercenaries as a means of violating human rights and impending the exercise of the rights of peoples to self-determination, 13 July 2009.
(74) Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (n 51 above), §430. The ICJ also affirms that it is irrelevant for a state to prove that in any event its actions would not have sufficed to prevent the crime, because ‘the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result’ (ibid).
(76) See for instance M Sassoli, ‘La “Guerre contre le Terrorisme”, Le Droit International Humanitaire et le Statut de Prisonnier de Guerre’ (2001) 39 Canadian Yearbook of International Law 211–52; or B Ryan, ‘Jus ad Bellum in the Israel–Hezbollah Conflict’  Cork Online Law Review, 〈http://www.ucclawsociety.com/colr/editions/2007/COLR%202007%20Full.pdf〉, accessed on 20 August 2010.
(78) See C Bassiouni and E Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (1995), 340; and Amnesty International, International Law Commission: The Obligation to Extradite or Prosecute (aut Dedere aut Judicare), IOR 40/001/2009 (2009), 98, 〈http://www.amnesty.org〉, accessed on 20 August 2010.
(79) See, inter alia, Mahmut Kaya v Turkey, ECHR (28 March 2000), §§ 101, 108–9, (2000) 11 Human Rights Case Digest 125–30.
(81) ‘Montreux Document’ (n 6 above). For instance, the territorial state should delimit which types of military services can not be carried out by PMSCs on its territory; require those companies to obtain general operating licenses; ask PMSCs for specific guarantees concerning the possession of certain types of weapons; require references and information from their clients; monitor PMSCs financial, technical, and management capabilities. The home state should eg determine which military services may not be exported; acquire information and references on their PMSCs; introduce and encourage the dissemination of a kind of quality label about the standards adopted by those companies; directly manage contracts between companies and private actors operating in areas of conflict; require PMSCs to notify the home state of certain contracts. All states should ensure that they have the legal capacity to investigate and prosecute PMSCs in instances of misconduct.
(82) For a study of individual criminal liability, see contributions in Part V of this volume.
(83) J Combacau, ‘Conclusions Générales’, in SFDI, Colloque de Rennes, Les Compétences de l'Etat en Droit International (2006), 320, 309.
(84) PCIJ, Advisory Opinion of 21 February 1925, Exchange of Greek and Turkish populations, Series B, no 10, 3.
(85) Mutatis mutantis, regarding international humanitarian law, see L Condorelli and L Boisson de Chazournes, ‘Quelques remarques à propos de l'obligation de “respecter et faire respecter” le droit international humanitaire “en toutes circonstances” ’, in ICRC, Mélanges Pictet (Genève-La Haye, Nijhoff, 1984), p. 25.
(86) Prosecutor v Anto Furundzija, IT-95-17/1-T (10 June 1998), §148, 56. Explaining first that ‘failure to pass the required implementing legislation has only a potential effect: the wrongful fact occurs only when administrative or judicial measures are taken which, being contrary to international rules due to the lack of implementing legislation, generate State responsibility’, the Tribunal immediately afterwards presents the prohibition of torture as an exception, in the case of which ‘the requirement that States expeditiously institute national implementing measures is an integral part of the international obligation to prohibit this practice. Consequently, States must immediately set in motion all those procedures and measures that may make it possible, within their municipal legal system, to forestall any act of torture or expeditiously put an end to any torture that is occurring.’ Ibid, §149, 57.
(87) UNGA Res 3314(XXIX) (n 30 above). The General Assembly states, as preamble of the definition itself, that ‘aggression is the most serious and dangerous form of the illegal use of force, being fraught, in the conditions created by the existence of all types of weapons of mass destruction, with the possible threat of a world conflict and all its catastrophic consequences’.
(89) Art 5.
(90) See section I above.
(91) See, on these distinctions, M Delmas-Marty. Among others: M Delmas-Marty, ‘Le Phénomène de l'harmonisation. L'expérience Contemporaine’ in Unité Mixte de Recherche de Droit Comparé de Paris (Université Paris 1/CNRS UMR 8103), Mireille Delmas-Marty et les années UMR (Paris: Société de législation comparée, 2005), p. 253.
(92) I Ziemele (Dir), S Zaharova, and I Miluna, ‘The Regulatory Context of Private Military and Security Services in Latvia: National Report’, Priv-War Project, WPVII, 18–19.
(93) O Quirico, ‘National Regulatory Models for PMSC's and Implications for Future International Regulation: An Overview’, Background Paper for the Priv-War Meeting on National Legislation & Judicial Practice Related to Private Military and Security Companies, EUI, Florence, 13 March 2009, 16.
(96) International Convention on Private Military and Security Companies (n 73 above), Art 3.2: ‘Each State Party shall take such legislative and other measures as may be necessary to establish: a) Rules of use of force aimed at ensuring security of the person, society and the state; b) Authorities and responsibilities of state bodies, organizations and officials which have the right to use coercive and combat means and/or carrying out special operations in the framework and in the situations under domestic and international law…’ See also Draft International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies (n 73 above), Art 19, Regulation of use of force and firearms: ‘1. Each State Party shall take such legislative, judicial, administrative and other measures as may be necessary to establish rules on the use of force and firearms by the personnel of private military and security companies taking into account that employees may carry firearms in providing military and security services’; and Art 21, Criminalization of offenses in the sphere of military and security services: ‘2. States parties shall take such measures as are necessary to investigate, prosecute and punish violations of the present Convention, and to ensure effective remedies to victims.’
(97) See eg UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Art 5.2.
(98) ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Rep 2002 (14 February 2002), 3.
(99) P Mayer, ‘Droit International Privé et Droit International Public sous l'angle de la Notion de Compétence’, Revue critique de droit international privé, 1979-I, 1–29; 1979-II, 350–88; 1979-III, 537–83.
(102) The Draft International Convention on the Regulation Oversight and Monitoring of PMSCs (n 73 above), confirms this point of view since it presents in Art 13 several legislative regulations as obligatory for states (‘Obligatoriness of special legislative regulation’).