Private Military Contractors – Mercenaries Outside the Scope of Law?
B. The Applicable Law – Not in Need for New Standards?
The law applicable to the activities of private military contractors largely depends on their activities. If employed in situations of armed conflict, including situations of military occupation, the law of armed conflict will apply, among others the Geneva Conventions of 194919 (GC) and their
14 Ibid., 30–31.
15 See S. Perlo-Freeman and E. Skons (2008).
16 See T. Christian Miller (2010).
17 For further references see Groth (Fn. 6), 31.
18 Ibid., 30.
19 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, UNTS 75, 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, UNTS 75, 85; Geneva Convention relative to the Treatment of Prisoners of War, UNTS 75, 135; Geneva Convention relative to the Protection of Civilian Persons in Time of War, UNTS 75, 287.
Additional Protocols20 (AP) as well as customary international law.21 To the extent that international human rights law remains applicable in situations of armed conflict22, these rules may also be relevant to the conduct of private military contractors. Outside such situations, general public international law will have to be borne in mind, in particular international human rights law. In so far as private military contractors are not as such addressees of pertinent rules of public international law, the law of state responsibility contributes to establishing a link between these contractors and the states employing them, with the conduct of private military contractors being indirectly affected by human rights and international humanitarian law standards.
I. Inadequacy of the Mercenary Definition
While there is no international agreement specifically addressing private military contractors as such23, one might consider whether they qualify as mercenaries. Indeed, in light of the fact that private military contractors are being paid for their involvement in armed conflicts, it has been discussed whether they fall under the international law definition of mercenaries given the profits they receive for their operations.24 There are three more or less identical definitions of a mercenary in public international law. They are included in Article 47 AP I, adopted on 8 June 197725, in the OAU (Organization of African Unity) Convention for the Elimination of Mercenarism in Africa of 3 July 197726, and in the International Convention against the Recruitment, Use, Financing and Training of Mercenaries of 4 December 1989.27 Article 47 (1) AP I, by stating that a “mercenary shall not have the right to be a combatant or a prisoner of war” implicitly confirms that
20 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), UNTS 1125, 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), UNTS 1125, 609.
21 The ICRC’s customary international law study is the most helpful restatement of customary international law of armed conflict; J.-M. Henckaerts and L. Doswald-Beck (eds.) (2005).
22 The overlap between international human rights and international humanitarian law is one of the most disputed issues related to the application of both bodies of law; see, among others, C. Tomuschat (2010), 15.
23 The following discussion is based, among others, on C. Lehnhardt (2011), online edition [www.mpepil.com], visited on 23 January 2013.
24 See also M. Mancini, F. Z. Ntoubandi and T. Marauhn, (2011), 321.
25 Cf. Fn. 18.
26 UNTS 1490, 96.
27 UNTS 2163, 75.
civilians participating directly in hostilities are not entitled to prisoner of war status28.
The three definitions share some basic criteria29: The person qualifying as a mercenary must be “specially recruited ... to fight in an armed conflict”30; he or she “is motivated to take part in the hostilities essentially by the desire for private gain”31; a mercenary “is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict”32; also, a mercenary “is not a member of the armed forces of a Party to the conflict”33; and finally, the person qualifying as a mercenary “has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces”.34 Given the fact that these definitional requirements are not only numerous but can be easily circumvented, none of the above legal instruments has had a major impact on international legal practice, nor can these provisions effectively be applied to private military contractors, unless in exceptional cases.35
II. The Status of Contractors in Armed Conflicts
If taking part in international armed conflicts, as defined by common Article 2 (1) GC and Article 1 (3) AP I or in a situation of occupation, as defined by common Article 2 (2) GC and Article 1 (3) AP I, private military contractors will be subject to the basic distinction between combatants and civilians.36 Only if they qualify as combatants, they are entitled to take a direct part in the hostilities without being prosecuted for doing so (unless having committed violations of the laws of war), and they will be granted prisoner of war status
28 In discussing Article 47 (2) (b) AP I, J. de Preux (1987), para. 1806, states: “Only a combatant, and a combatant taking a direct part in hostilities, can be considered as a mercenary in the sense of Article 47”.
29 For a detailed analysis see Mancini, Ntoubandi and Marauhn (Fn. 24), 322–327; on customary law, ibid., 327–329.
30 Article 47 (2) (a) AP I; Article 1 (1) (a) OAU Convention; Article 1 (1) (a) International Convention.
31 Article 47 (2) (c) AP I; Article 1 (1) (b) OAU Convention; Article 1 (1) (b) International Convention.
32 Article 47 (2) (d) AP I; Article 1 (1) (c) OAU Convention; Article 1 (1) (c) International Convention.
33 Article 47 (2) (e) AP I; Article 1 (1) (d) OAU Convention; Article 1 (1) (d) International Convention.
34 Article 47 (2) (f) AP I; Article 1 (1) (e) OAU Convention; Article 1 (1) (e) International Convention.
35 Lehnhardt (Fn. 23), para. 4; see also Mancini, Ntoubandi and Marauhn (note 24), 329–
333.36 On the need to uphold the principle of distinction notwithstanding new challenges see S.
Oeter (2007), 53.
if captured by enemy forces.37 If they do not qualify as combatants, they will be treated as civilians. In other words, they do not have the right to participate directly in the hostilities, and – as long as they do not actually participate – they will be protected from attack by enemy forces. Should they, however, participate directly in the hostilities, they may be treated as criminals by the enemy if captured, unless they qualify, among others, as civilians accompanying the armed forces according to Article 4 (A) (4) of GC III, or a similar subcategory of civilian.
Private military contractors, apart from being civilians accompanying the armed forces, may, however, become de facto combatants38 according to Article 4 (A) 2 GC III and Article 43 (1) AP I if they are incorporated into the armed forces. Even though this seems to “contradict the very rationale of outsourcing military tasks”39 as private military contractors normally operate separately from the military hierarchy these provisions provide a special status to “(m)embers of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory” (Article 4 (A) 2 GC III), subject to several conditions40: It requires an organized armed group (a condition, which contractors should easily meet), belonging to a party of the conflict (a condition, which, even though this view is sometimes disputed, can be met by a contract between the state party and the company, as well as by tacit agreement, but not by simply fighting on one side or the other), and the following additional criteria: being subjected to a responsible commander, wearing distinctive signs, carrying arms openly (criteria slightly modified and loosened by Article 44 (3) AP I)41, and conducting operations in accordance
37 On the notion of combatant status see, among others, D.P. Ridlon (2008), 199; A.
Behnsen (2003), 494.
38 See Lehnhardt (Fn. 23), paras. 7 and 10.
39 Ibid., para. 9.
40 Article 4 (A) (2) GC III reads as follows: “Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.”
41 Article 44 (3) AP I stipulates: “In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching
with the laws and customs of war. The most difficult criterion obviously is the
“belonging to a party”. As mentioned above, mere fighting will not be sufficient as proof for such a link to one of the parties to the conflict. Rather, the views of the state contracting a private military company must be taken into account.42
Indeed, state practice points in this direction: Both the United States and the United Kingdom have frequently contracted private military companies.
However, as a matter of routine, contractors were given the status of civilians accompanying the armed force, as provided for in Article 4 (A) (4) Geneva Convention III.43 This means that contractors were not authorized to fight, but they obtained a status, which effectively protected them as prisoners of war if captured an enemy party. It can be taken from this practice that authorization to fight may qualify contractors as combatants, but not the mere fact of taking part in hostilities.44 Even if contracted to fight, it is important to note that contractors must meet the other requirements mentioned above.
In international armed conflicts, there are thus three possibilities to qualify contractors: (1) If contracted to fight (and if meeting the pertinent criteria), they constitute de facto combatants; if not contracted to fight but for other purposes, they will (2) either be civilians accompanying the armed forces (3) or they will be civilians. In none of the two latter cases they have the right to directly participate in hostilities. If, this notwithstanding, they participate directly in hostilities, they will be considered as unprivileged belligerents.45
In non-international armed conflicts, there is less clarity since the rules are much less detailed. Common Article 3 GC and AP II do not answer the question of whether a person is a combatant or otherwise entitled to fight. As a consequence, the issue of the combatant status is normally a non-issue in non-international armed conflicts46, and private military contractors will thus be subject to the domestic law of the territorial state. Minimum protection for contractors is provided by common Article 3 (1) GC, and, to the extent applicable, Article 4 AP II.
of an attack in which he is to participate. Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (c)”.
42 Lehnhardt (Fn. 23), para. 11.
43 For a detailed discussion see G. Bartolini (2011), 218.
44 On pertinent practice see Mancini, Ntoubandi and Marauhn (Fn. 24), 330–333 and 338–339.
45 See Lehnhardt (Fn. 23), para. 13.
46 But see, generally, J. Kleffner (2007), 315.
III. Direct Participation of Contractors in Hostilities
As private military contractors, if involved in situations of an armed conflict as civilians, will lose this status in case of direct participation, it is important to take a closer look at Article 51 (3) AP I47 and Article 13 (3) AP II48, dealing with direct participation. The most serious consequences of direct participation are the possibility of being directly attacked according to the same rules and principles as combatants and the loss of combatant privilege upon capture (i.e., they will be treated as criminals under the domestic law of the captor).49 The question arises, what direct participation means. Neither treaty law nor State practice or international jurisprudence provide a precise definition of what conduct amounts to direct participation in hostilities.
This means that the notion of direct participation in hostilities must be interpreted according to the general rules on treaty interpretation, i.e., in good faith and on the basis of the ordinary meaning to be given to the terms in their context and in the light of the object and purpose of AP I, AP II and other pertinent rules of the law of armed conflict. The rules on treaty interpretation are included in Article 31 (1) of the Vienna Convention on the Law of Treaties and are considered to be customary international law.50 The application of these rules to Article 51 (3) AP I and Article 13 (3) AP II was the aim of a clarification process led by the ICRC between 2003 and 2009, the outcome of which, while not being uncontroversial, resulted in a publication, providing “interpretative guidance” on the interpretation of the notion of direct participation in hostilities in contemporary armed conflicts.51 This process has been paralleled by similar discussions in legal doctrine and in domestic courts.52
There is general agreement that the qualification of civilian conduct as direct participation in hostilities must be judged on a case-by-case basis. The interpretative guidance, however, on the basis of a solid analysis of treaty law, pertinent state practice, jurisprudence, and legal doctrine suggests that the following criteria are cumulative requirements53:
First, there must be a belligerent nexus, i.e., conduct occurring outside situations of armed conflict (or within such situations but unrelated to the conflict) does not amount to direct participation.
47 Article 51 (3) AP I stipulates: “Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities”.
48 Article 13 (3) AP II reads “Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities”.
49 See M. Sossai (2011), 197, 204–206 and Mancini, Ntoubandi and Marauhn (note 24), 333–336.
50 See, generally, O. Doerr (2012), 521.
51 See N. Melzer (2009).
52 For a contextual review of the ICRC process see N. Melzer (2010b), 151.
53 See N. Melzer (2010a), paras. 7–16.
Second, there must be harm above a certain threshold resulting from such direct participation, not limited to death and injury of military personnel or damage to military objects, but also including the capture of such personnel or the exercise of control over military objects.
Third, there must be a direct causal link between conduct and harm, however, handled in a flexible manner in order “to include civilian conduct causing harm only in conjunction with other acts”.54 While typically an agreement can be reached in respect of the qualification of combat operations, disputes continue to occur about preparatory and supportive activities.
Civilians only lose their protection “for such time” that they engage in direct participation in hostilities. This means that they are suspended from protection but they regain such protection as civilians, once direct participation comes to an end.55 While this “revolving door”-approach has been subject to some criticism, others have rightly argued that such enhanced (and flexible) protection of civilians helps “to avoid erroneous and arbitrary attacks against peaceful civilians in situations where doubt, suspicion, and uncertainty are endemic”.56 In the case of private military contractors, direct participation may take the form of organized participation, where contractors assume “a continuous combat function … in the conduct of hostilities”57; then they will lose their protection on a continuous basis and they “are held to regain protection against direct attack only once they surrender, fall hors de combat or affirmatively disengage from the group in question in a manner recognizable to the adversary”.58 It is argued, however, that in situations of doubt the “presumption of civilian protection should … apply”.59 Not only governments employing private military contractors but even more these contractors themselves must be aware of the intricacies of Article 51 (3) AP I and Article 13 (3) AP II and the notion of direct participation.
IV. Issues of International Human Rights Law
Should private military contractors be employed outside situations of armed conflict, and thereby perform functions assigned to them by governments, the question arises to what extent these contractors are bound by international human rights law. According to traditional doctrine, private military contractors as such are not addressees of international human rights law.
However, home and host states involved in the employment and deployment
54 Ibid., para. 15.
55See M.N. Schmitt (2004), 511.
56 See Melzer (Fn. 53), para. 19.
57 Ibid., para. 21.
58 Ibid., para. 21.
59 Ibid., para. 22.
of private military contractors are subject to numerous human rights obligations.60
Addressing the home state of a private military contractor, its responsibility for human rights violations connected to the conduct of such a contractor may be direct or indirect in nature, or – in other words – negative and positive.
First, the home state will bear responsibility for the human rights violations by private military contractors, if the contractor is integrated into the national armed forces. Then the contractor may even be considered to be acting as an organ of the state61, in particular, if the government has assigned the exercise of governmental authority to the contractor either operating in or outside its territory. These are all situations of direct responsibility, and they involve the state’s negative human rights violations. While the exercise of combat functions may only entail governmental responsibility to the extent that international human rights law is applicable in addition to the law of armed conflict, human rights will be relevant, among others, in post-conflict situations in the case of powers of arrest, interrogation services, and other law enforcement functions as well as in the context of managing detention facilities.62
Second, if the home state does not integrate contractors into its governance machinery, but only loosely establishes links with the contractors, then its positive obligations come into play.63 Indeed, the home state cannot escape its responsibility for misconduct by outsourcing governmental functions to private contractors. This will even apply if the contractor only acts under indirect control of its home state.64
If private contractors are employed by business entities or other non-governmental actors, responsibility of the home state is even more difficult to establish.65 It may then be argued that the home state is under a general obligation to prevent or at least minimize human rights violations by contractors established or licensed under its authority. This will also entail the responsibility to impose criminal sanctions on perpetrators in case of human rights violations and to make available civil remedies to potential victims.66
Similar obligations may apply to the host state. Its jurisdiction will normally be established on the basis of the territoriality principle, and may thus exist on parallel tracks to the (extraterritorial) jurisdiction of the home
60 See F. Lenzerini and F. Francioni (2011), 55–60.
61 See F. Francioni (2011), 93, 99–104.
62 For pertinent universal and regional practice relevant in this context see Lenzerini and Francioni (Fn. 60), 60–78.
63 See C. Hoppe (2011), 111.
64 See Francioni (Fn. 62), 102–104.
65 These issues have been discussed, among others, by F. Francioni (2009).
66 Ibid.
state of a contractor.67 There may be cases of shared responsibility between the two states involved, the home and the host state of a private military contractor.68
While it is thus possible to establish international human rights responsibility of host and home state of private military contractors, such responsibility of the home state, compare to its responsibility for a traditional soldier, demonstrates a gap69, unless the contractor is fully incorporated. As has rightly been argued, “the state will always face less responsibility for acts of those persons than for acts of soldiers, and its responsibility will be harder to prove”.70 This gap materializes in a responsibility for off-duty human rights violations as well as in the case of ultra vires or uncontrolled conduct of contractors exercising coercive services. States will typically exploit such options to minimize their international responsibility.71 Efforts to narrow down such responsibility gaps must focus on duties to vet, train, instruct, and report, and possibly to prevent known violations.
While it is thus possible to establish international human rights responsibility of host and home state of private military contractors, such responsibility of the home state, compare to its responsibility for a traditional soldier, demonstrates a gap69, unless the contractor is fully incorporated. As has rightly been argued, “the state will always face less responsibility for acts of those persons than for acts of soldiers, and its responsibility will be harder to prove”.70 This gap materializes in a responsibility for off-duty human rights violations as well as in the case of ultra vires or uncontrolled conduct of contractors exercising coercive services. States will typically exploit such options to minimize their international responsibility.71 Efforts to narrow down such responsibility gaps must focus on duties to vet, train, instruct, and report, and possibly to prevent known violations.