Private Military Security Companies Role in State Responsibility

Written by: Jordan Patel, University of Toronto

It was argued in 2003, when the laws that regulated private military security companies (PMSCs) in Iraq were rather unclear (relative to the legal devices we have now) that domestic institutions sought to ‘fill the gap’ between the normative values of international law in holding PMSCs accountable on an international scale due to the “weak enforcement of state obligations.”[1]However, in light of recent developments with the increase of PMSCs in Afghanistan, as well as Blackwater’s resurgence as a relevant PMSC despite its human rights violations, some have argued that there is a dire need to seek accountability on an international scale rather than relying on domestic institutions. What has changed from 2003 to early 2019 is the development of legal frameworks, which although are not codified, have been helpful in solidifying the norms of international law. Thus, the main difference between such eras of international law is the clarity that is brought in seeking to attribute the conduct of PMSCs to the state. 

Referring to the Montreux Document, the norms encapsulated have been expanded upon by other scholars, but the problems of enforcing state responsibility and establishing enough proof of the pernicious conduct of PMSCs to a given state remain. Therefore, this paper will refer to the legal judgements and advisory opinions (henceforth referred to as legal arguments), as well as the narratives presented by international organizations and scholars of international law, to construct plausible legal arguments that can be made in relations to state responsibility that specifically address the role of PMSCs. 

This paper will discuss the issues of the three avenues that are utilized to attribute the conduct of PMSCs to the state and suggests that despite the issues of utilizing ‘governmental authority’ and the ‘control and instruction’ approaches, the universal application of the ‘due diligence’ approach is the strongest of the three when seeking to clarify the role that PMSCs play in state responsibility. Based on the way such legal reasoning links to fundamental customary international law, due diligence is the strongest avenue that can reflect current international legal norms for future legal arguments surrounding PMSCs. Lastly, this paper will showcase that the conduct of PMSCs are attributable to the state under certain circumstance, but the difficulties that arise when addressing complex cases promote the need to add further clarification for those constructing appropriate legal arguments to a given case. 

When articles address the conduct of PMSCs as attributable to the state, many find it difficult to cover the various services that PMSCs provide, and some articles have shown a distinction between companies that are aimed at offering security versus those offering military capabilities.[2]However, in recent years the Montreux Document has sought to bring clarity to definitions of the various roles that PMSCs play within the scope of international humanitarian law (IHL) and international human rights law (IHRL) and bring commentary to such points. The document clarifies that distinctions on companies’ branding are irrelevant to safeguarding the values of IHL and IHRL. Rather the “nature of its activities” is the primary focus and will indicate whether the conduct of PMSCs can be linked to a given state.[3]Therefore, the role of PMSCs is both military and security-related, but regardless of such classifications both can violate international law and attribute such conduct to the state. While it is commonplace to relate the conduct of PMSCs to a contracting state, there are other affiliations states can have with PMSCs. Territorial states (where the PMSCs operate), home states (where the PMSC is incorporated), and contracting states all share responsibilities in protecting international values but differ in the particularity of the values they are obliged to safeguard.[4]Nonetheless, the common theme between all three is that they owe some obligation to monitoring the conduct of PMSCs they have a relationship with, and as such are relevant to the discussion of state responsibility. Moving forward, the three categories of states attachments to PMSCs will be utilized throughout the paper in order to articulate where such legal argument will be most effective depending on the state’s attachment towards a given PMSC. Now that such categories have been explained, we can begin to analyze the methods in which states can be attributable to the conduct of PMSCs. 

When it comes to the private nature in which PMSCs like to advertise themselves, the role of a military force has always been utilized by the state and as such is considered a “core governmental function” by most international legal scholars.[5]Thus, in international law it is irrelevant whether the PMSC is advertised as being public or private; what matters is if the conduct can be characterized as public. Within the International Law Commissions’ Draft Articles on State Responsibility (ASR), Article 4  states that the conduct of organs of the state are attributable to the same state such that the organ is enshrined in the internal laws.[6]Yet, under Article 5 its describes that those who are not organs of the state by definition of Article 4, but are empowered by the internal laws of that state to act with governmental authority, can have their acts attributed to the state.[7]The article seeks to look at the example of Iraq, particularly in the ways in which domestic legislation sought to clarify certain regulations of PMSCs, and whether or not such clarifications can be used to attribute the conduct of PMSCs to the state.

When seeking to find domestic legislation that regulated the conduct of PMSCs (any domestic legislation that could be enacted by home, territorial, or contracting states) many sought to analyze the transitional government regulations set up in Iraq by the Coalition Provisional Authority on PMSCs. Specifically referring to CPA Order 17, which gave PMSCs immunity from Iraqi law for their conduct and constituted PMSCs freedom reign in Iraq.[8]Because of the careful wording of the order, when the US Department of Defence was pressed on the issue, the argument made was that PMSCs could not ‘legally’ carry out military operations.[9]However, despite the claims made by CPA Order 17, as well as the Department of Defense, there were several incidents in which military operations were conducted by PMSCs that took an offensive role. Many security services carried out by Blackwater (an American PMSC) were considered by some scholars as innately militaristic, due to the hostility within the territory that forced PMSCs to conduct themselves in a militaristic nature.[10]Henceforth, the assertion made is that because PMSCs act in a militaristic manner, and since such conduct can only be given to an organ of the state, they are in a sense acting within the parameters of governmental authority.[11]Thus, PMSCs can be considered a de facto organ of the state.[12]Despite the lack of internal laws that would otherwise show the PMSCs’ incorporation within the armed forces, since the militaristic nature is present in the conduct, the legal argument theoretically still holds some validity. It is no longer a question of whether they are legally ascribed to have governmental authority, but whether the PMSCs conduct containsgovernmental authority. For such claim to hold significant weight, the evidence must show that the PMSC acted in ‘complete dependence’ of the contracting state (as such a state would have the largest attachment to the PMSC).[13]Complete dependence signifies, as per the ICJ’s decision in the Bosnian case, that the entity (the PMSC) is acting as ‘merely the instrument’ of the state; within the same capacity as an organ of the state but without the internal laws to declare the entity a de jureorgan.[14]Therefore, in the absence of the ‘complete dependence’ and internal laws reflective of the exact nature of PMSCs, state responsibility cannot be attributable to the state under this avenue. Despite such limitations in trying to assert PMSCs as de factoorgans, there are other avenues available that still need to be considered to establish states’ liability for the conduct of PMSCs. 

The second legal avenue concerns the ways in which PMSCs can act on the instruction and control of the state. As described in Article 8, a person or a group of persons can have their conduct attributable to the state if it is under the direction or control of said state.[15]In describing the nature of this avenue of state responsibility, two legal arguments that have been used in international cases will be presented, analyzed, and placed within the context of PMSCs. These two cases are the Nicaraguan case (the arguments presented by the ICJ that established the ‘effective control’ test) and the Tadic case (the arguments presented by the ICTY’s Appeal Chamber that critiques the ‘effective control’ test as too strict, offering an ‘overall control’ test).[16]

The Nicaragua case offers an elaborate argument in which both avenues are utilized (governmental authority as well as control and instruction). The court within the following proceedings addressed the avenue of governmental authority, asserting that in the absence of sufficient evidence to suggest “that all the operations launched by the contra forces…reflected the strategy and tactics wholly devised by the United States” the conduct of the contras could not be considered an organ of the state.[17]Thus, with the first avenue falling short in the absence of evidence to establish ‘complete dependence’, the ‘effective control’ test was utilized to describe whether the entities (the contras) could be categorized under Article 8 of the ASR. The next question that the court sought to expand upon was whether there was enough direction and control by the United States in relation to the conduct of the contras that they could be held liable for the IHL violations allegedly committed.[18]The court sought to answer the question by suggesting the following:

[The] financing, organizing, training, supplying and equipping of the contras…is still insufficient in itself…for attributing to the United States the acts committed by the contras…For this conduct to give rise to the 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[19]

Essentially, what the ICJ described as ‘effective control’ meant that a specific instruction must have been given by the state, and such an order must have indicated that an act or conduct must be carried out.[20]The court ended its ruling by explaining that the United States was liable for the actions of the contras, which they supported through funding or physical support, as well as the Latin American agents (UCLAs) that were instructed by the CIA to do certain acts.[21]Thus, any international legal regulations violated under these two conditions were attributable to the state, but what could not be attributable to the state was the IHL violations that the contras committed, since the US was not directly involved in such conduct.[22]Therefore, in the context of PMSCs, a contracting state providing payments to the operations of contractors would only be attributable to the state if the contracting state had direct control over the operations. While the home state could assert legitimate claims if they instructed the conduct, it would be rather difficult to suggest direct control of either the contracting state or home state, if there are multiple states sharing control of the conduct. What follows such an argument are the ways in which the Appeals Chamber of the ICTY offer a differing legal argument when discussing the application of the direction and control avenue. 

The Appeals Chamber, in their ‘overall control’ test, seeks to weaken the high threshold that is embedded within the ‘effective control’ test, by allowing for overall control to be flexible and utilized to address varying circumstances when measuring the “degree of control.”[23]The Tadic case describes the attempt of the Appeals chamber of the ICTY to clarify and add a legal argument more reflective of international values – one that reflects international norms holding the state attributable to the conduct of persons, using a lower degree of control than has been described in the Nicaraguan case.[24]The following includes the main points of the degree of control that should be fulfilled in accordance with this test:

In order to attribute the acts of a military or paramilitary group to a state, it must be proved that the state wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of military activity…However, it is not necessary that, in addition, the state should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law.[25]

Therefore within the context of PMSCs, the Tadic case describes that, in line with international norms, it is important to establish control in the matter of the group either by paying for the PMSCs or supplying them, but it is not necessary for the state to give the command of the act that violates international law for the actions of PMSCs to be attributable to the state. However, since these two tests seek to address a similar issue, the circumstances that affect a given case can influence the ways in which state responsibility can be attributable to the home, contracting, or territorial state. As such, the volatile nature embedded within this avenue implies that while the burden of proof is significantly lower (albeit limited in the fact that it contracts the previous tests), the feasibility in trying to comply with both tests offers the variable of a ‘case-by-case’ nature and is dependent on what the court wishes to adhere to in a given example. Therefore, there are instances where legal arguments given by the courts seek to encompass contemporary international norms and will often ‘reinterpret’ past legal arguments. While this avenue provides a stronger bases for state accountability than the first, the ‘case-by-case’ element as a basis for the avenue leaves much to be desired.  By looking at the final avenue to attribute the conduct of PMSCs to the state, we can understand why it is the strongest and most likely to be used in cases that reflect the conduct of PMSCs, where attribution can be shared between the home, contracting, and territorial state.

This article began with the ideas of the Montreux Document and the practices that it advises states to oblige to; safeguarding the values of IHRL and IHL, and therefore their due diligence to maintaining the obligation can be used to hold states liable for their inaction to do so. Thus, if the state does not comply with its international legal obligations in accordance with the values of the Montreux Document by its omission to prevent or regulate certain actions, said state can be held liable. The due diligence avenue allows for the acts of PMSCs that cannot be directly linked to the state under the first two avenues, to be attributable to the state under certain conditions.[26]Thus, the avenue of due diligence allows for general application of various state’s obligations customary international law. 

However, some argue that because of the vagueness of the obligations in which due diligence can be ascribed to, it would be rather difficult to seek concrete applications.[27]While this is true, there are also limitations towards seeking concrete applications of the other avenues mentioned prior. What gives due diligence its strength is not necessarily how concrete its application is, but what it reflects that the other two avenues do not. Due diligence relates to the obligations of states that are engrained in customary international law and are the strongest links to customary law relative to the other avenues presented in this paper.[28]While governmental authority as an avenue has high levels of proof that need to be met to establish a strong legal argument, and the direction and control avenue has differing positions based on the legal arguments of the respective courts, due diligence offers an avenue that is innately customary and is a principle that can guide those seeking to apply clarity towards the role of PMSCs in international law. While there are still some issues that limit international legal debates regarding PMSCs and their relation to state responsibility, the due diligence avenue can establish the goals of the international legal values in holding states accountable for the conduct of PMSCs. This is not to say that due diligence is an avenue that can be applied in any scenario regardless of the specifics, but rather that due diligence has been a strong norm that seeks to reflect the ideals of international law and is a crucial avenue to consider when attributing the conduct of PMSCs with home, territorial and contracting states.  


Works Cited

[1]Chia Lehnardt, “Private Military Companies and State Responsibility”, in From Mercenariesto Market: The Rise and Regulation of Private MilitaryCompanies, S. Chesterman and C. Lehnardt (eds), (Oxford university Press, 2007), pg. 142

[2]Alexandre Faite, “Involvement of Private Contractors in Armed Conflict: Implications under International Humanitarian Law.” Defence Studies 4, no. 2 (2004) pg. 168-169

[3]Marie-Louise Tougas, “Commentary on Part I of the Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict.” International Review of the Red Cross96, no. 893 (2014) p. 309 (referred to as Montreux Documents with Commentary); Faite, “Involvement of Private Contractors in Armed Conflict: Implications under International Humanitarian Law.”, p. 168-169 

[4]Marie-Louis Tougas, “Montreux Document with Commentary”, p. 310

[5]Chia Lehnardt, “Private Military Companies and State Responsibility”, pg. 146-147; Draft Articles on Responsibility of States for Internationally Wrongful Acts (with commentaries) in Report of the International Law Commission on the Work of its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at: www.un.org/law/ilc.; Annex to GA Res. 56/83 (12 Dec. 2001). pg. 38-39. (referred to as ASR when no commentary is referenced, otherwise ASR Commentarywill be used)

[6]ASR, article 4

[7]ASR, article 5 

[8]J. K. Elsea & N. M. Serafino, 2007. “Private security contractors in Iraq: Background, legal

 status, and other issues.” Washington, DC: Congressional Research Service Report

 for Congress #RL32419

[9]DoD Instruction 1100.22, September 7, 2006., para E2.1.3.1

[10]Chia Lehnardt, “Private Military Companies and State Responsibility”, p. 148

[11]ASR Commentary, article 5, para. 2

[12]ICJ, Case Concerning the Application of the Convention of the Prevention and the Punishment of the Crime of Genocide (Bosnia and Hercegovina v Serbia and Montenegro)Judgement, Feb 26, 2007para. 388 & 390; MarkoMilannovic”State Responsibility for Acts of Non-state Actors: A Comment on Griebel and Plücken.” Leiden Journal of International Law 22, no. 2 (2009),pg. 3

[13]Bosnian Case, para. 390-392

[14]Bosnian Case, para. 384 & 392; Milanovic, “State Responsibility for Acts of Non-state Actors: A Comment on Griebel and Plüken” pg. 7-8; Marko Milanović, “State responsibility for genocide.” European Journal of International Law 17, no. 3 (2006), pg. 577 & 582 

[15]ASR, article 8

[16]ICJ, Case concerning Military Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Judgement (Merits), June 27, 1986, ICJ Reports 1986, para. 115; ICTY, Appeals Chamber, Prosecutuer v Tadic,Judgement, May 7, 1997, IT-94-1-T, para. 131; Lenhardt, “Private Military Companies and State Responsibility”, pg. 149-150

[17]Nicaraguan Case, para. 106 & 108; Valerie Oosterveld, “International law: doctrine, practice and theory.” (2014), pg. 774

[18]Nicaraguan Case, para. 115; Valerie Oosterveld, “International law: doctrine, practice and theory.”, pg. 774

[19]Nicaraguan Case, para. 115-116

[20]Lenhardt, “Private Military Companies and State Responsibility”, p. 149; Nicaraguan Case, para. 189-90

[21]Nicaragua Case para. 75; Valerie Oosterveld, “International law: doctrine, practice and theory.”, pg. 775

[22]Valerie Oosterveld, “International law: doctrine, practice and theory.”, pg. 775

[23]Tadic Case, para. 117 

[24]Ibid., para. 124

[25]Ibid., para. 131

[26]Beaucillon, Charlotte, Julian Fernandez, Helene Raspail, and Julian Fernandez, “State responsibility for conduct of private military and security companies violatingIus ad bellum”, From War by contract: human rights, humanitarian law, and private contractors(Oxford University Press, 2011), pg. 409

[27]Ibid., pg. 411

[28]Louise Doswald-Beck, “PMCs under international humanitarian law”, in S. Chesterman and C. Lehnardt (eds), From Mercenaries to Market: The Rise and Regulation of Private MilitaryCompanies (Oxford University Press, 2007), pg. 131


References

Alexandre Faite. “Involvement of Private Contractors in Armed Conflict: Implications under International Humanitarian Law.” Defence Studies 4, no. 2 (2004): 166-83.

Beaucillon, Charlotte, Julian Fernandez, Helene Raspail, and Julian Fernandez, “State responsibility for conduct of private military and security companies violatingIus ad bellum”, From War by contract: human rights, humanitarian law, and private contractors(Oxford University Press, 2011), pg. 409

Doswald-Beck, Louise “PMCs under international humanitarian law”, in S. Chesterman and C. Lehnardt (eds), From Mercenaries to Market: The Rise and Regulation of Private MilitaryCompanies (Oxford university Press, 2007), pg. 131

Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, in Report of the International Law Commission on the Work of its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at: www.un.org/law/ilc .; Annex to GA Res. 56/83 (12 Dec. 2001).

Elsea, J. K., & Serafino, N. M. “Private security contractors in Iraq: Background, legal

 for Congress #RL32419. (2007).US Congressional Research Service, “Private Security Contractors in Iraq: Background, Legal Status and Other Issues”, June 2007

ICJ, Case concerning Military Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Judgement (Merits), June 27, 1986, ICJ Reports 1986.

ICJ, Case Concerning the Application of the Convention of the Prevention and the Punishment of the Crime of Genocide (Bosnia and Hercegovina v Serbia and Montenegro)Judgement, Feb 26, 2007.

ICTY, Appeals Chamber, Prosecutuer v Tadic,Judgement, May 7, 1997, IT-94-1-T

Lehnardt, Chia “Private Military Companies and State Responsibility”, in S. Chesterman and C. Lehnardt (eds), From Mercenaries to Market: The Rise and Regulation of Private MilitaryCompanies (Oxford university Press, 2007)

Milanović, Marko. “State Responsibility for Acts of Non-state Actors: A Comment on Griebel and Plücken.” Leiden Journal of International Law 22, no. 2 (2009): 307-324.  

Milanović, Marko. “State responsibility for genocide.” European Journal of International Law 17, no. 3 (2006): 553-604.

Oosterveld, Valerie. “International law: doctrine, practice and theory.” (2014).

 status, and other issues.” Washington, DC: Congressional Research Service Report

Tougas, Marie-Louise. “Commentary on Part I of the Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict.” International Review of the Red Cross96, no. 893 (2014): 305-358.

US Department of Defense, Instruction Number 1100.22, Guidance for Determining Workforce Mix, September 7, 2006.United States Department of Defense. “Instruction: Guidance for Determining Workforce Mix.” Number 1100.22. (2006) <http://www.dodea.edu/Offices/CSPO/upload/Guidance-for-Determining-Workforce-Mix.pdf.>

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