ABSTRACT: The tragic incidents in Abu Ghraib in Afghanistan (2004) and in the Nisour Square in Iraq (2007) have revealed the existing legal gap under which Private Military and Security Companies (PMSCs) operate. There was a lack of a coherent international and/or national regulatory regime applicable to these companies, which helped their employees escape prosecution for grave breaches of human rights law. In response to those human rights allegations, a number of non-binding initiatives have been enacted. However, these documents encourage States to adopt specific measures to regulate and monitor PMSCs’ activities. Accordingly, within this context, this paper examines four different types of national regulatory regimes pertaining to PMSCs’ operations (United States, United Kingdom, South Africa and Germany). It explores the existing national legislative framework, under which private contractors may be held accountable for their misconducts. Further, it considers that the absence of an international framework to punish private contractors for human rights violations allows for non-compliance with human rights law.
Introduction
While carrying out several security tasks that traditionally belonged to States,1 PMSCs have purportedly been involved in violations of international human rights and humanitarian law during their operations.2 Violations have been committed by private contractors acting for the United States of America (U.S.A.), the United Kingdom (U.K.), South Africa, Iraq and Afghanistan. The most notorious examples have allegedly taken place in Iraq. In particular, in 2004, Titan Corporation and CACI – two American PMSCs latterly, they contracted out to provide interpretation and interrogation services at Abu Ghraib prison – were accused of being involved with torturing of Iraqi detainees.3 A military investigation, which resulted in the publication of a report titled ‘’Tabuga Report’’, explicitly indicated the extensive sexual abuse and humiliating treatment of detainees by private contractors.4
Notwithstanding these allegations, the US State Department hired Blackwater to guard the US diplomatic mission in Iraq. A few years later, in 2007, Blackwater’s private contractors were involved in shooting innocent Iraqi civilians in Nisour Square in Iraq while they were escorting US vehicles to the Green Zone.5 Seventeen people were killed and 24 were wounded, including women and children.6 According to the ‘’Memorandum: Additional Information on Blackwater U.S.A’’ Blackwater’s personnel have been involved in more than 195 incidents in Iraq from 2005 to 2007.7 Apart from the aforementioned incidents, PMSCs have also been accused of attacking civilians in Colombia8 and even of buying and keeping women and girls in sexual slavery in Bosnia.9
National reports, such as the ‘’Memorandum: Additional Information on Blackwater U.S.A.’’ and media organisations provide a record of the alleged involvement of private contractors in human rights abuses but they also highlight that in most cases no one has ever been prosecuted.10 The absence of a coherent and binding international legal framework to regulate PMSCs and oversee private contractors’ activities11 , together with the lack of national regulatory and advocacy frameworks, which have jurisdiction related to PMSCs' misconduct, means that private contractors have managed to escape from prosecution for human rights violations.12 As a result, private military and security industry remains ‘’less regulated than the cheese market’’13 and/or ''the toy industry''.14
In an attempt to fill the regulatory and accountability gaps regarding the PMSCs and their employees, the international community has launched some significant initiatives in an attempt to encourage States to implement regulatory frameworks with regard to PMSCs.15 . 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 (the Montreux Document),16 is the first international document that emphasizes States’ obligations both to regulate and monitor PMSCs’ activities and to enact proper legislative measures to punish perpetrators for violations of international humanitarian law and human rights law.17 In particular, the Montreux Document provides that States have the ultimate obligation to establish relevant judicial mechanisms to prosecute persons for ‘’committing, or ordering to be committed, grave breaches of the Geneva Conventions and, where applicable, Additional Protocol I’’. It requires also States to be bound by the obligation to ‘’search for persons alleged to have committed’’ those acts ‘’regardless of their nationality, before their own courts’’.18 Therefore, States have to enact relevant laws to prosecute private contractors, as perpetrators for human rights abuses, regardless of the place where violations have been committed. Moreover, the Montreux Document underlines that the lack of national laws with extraterritorial effect and the immunity provided to private contractors under the status-of-forces agreements19 could lead to a sense of impunity.20 That is exactly what happened with the punishment of private contractors in Iraq. In both cases of Abu Ghraib and Nisour Square, private contractors enjoyed immunity from Iraqi courts in case of misconduct.21 This is because US. Courts had exclusive jurisdiction over the crimes committed by private contractors on the Iraqi territory22 . Yet the problem remains, since the U.S. does not have proper legislative enforcement over private contractors' misconduct.23
Irrespective of the significant contribution of the Montreux Document in the field of regulating PMSCs’ activities, its non-binding nature and its limited application (since it applies only during armed conflicts) makes it unable to fill in the accountability gap for human rights abuses by private contractors24 . For instance, the United Nations Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Self-Determination (U.N. Working Group on Mercenaries) criticized the contribution of the Montreux Document. In particular, in its 2009 report, the UN Working Group recognized that the Montreux Document has failed to ‘’address the regulatory gap in the responsibility of States with respect to the conduct of PMSCs and their employees’’.25
Yet recognizing the significance of the Montreux Document, the Human Rights Council welcomed the addition of a legally binding document with regard to PMSCs and their employees. The final document – titled United Nations Draft International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies (the U.N. Draft Convention)26 - constituted the first effort to create States' obligations for using PMSCs, their licensing and authorization of PMSCs' activities as well as addressing accountability issues for PMSCs for human rights violations. Since it is still an ongoing process, the U.N. Draft Convention makes the intentions of States towards the regulation and control of PMSCs' operations.27
Therefore, as a result of the aforementioned initiatives, an onus is placed on States to take decisive legislative measures to regulate PMSCs’ activities and hold private contractors accountable for human rights violations. According to Schneiker,28 there are two main reasons, which indicate the emerged need of such regulation. First, States remain responsible for violations committed by PMSCs by outsourcing certain security activities to them.29 Secondly, even though the national regimes are less effective than an international one,30 national regulations are easier to enforce. Caparini31 therefore highlights that there is a general need to clarify under whose jurisdiction PMSCs' employees operate and who holds the competence over their activities. For example, if a Colombian contractor working for a Belgian PMSC commits grave violations of human rights law, whose jurisdiction will prosecute him/her and under which laws should he/she be tried?
Due to lack of international binding regulations, the need for the establishment of accountability mechanisms regarding violations of human rights law has never been higher, in order to establish effective prosecution for private contractors. This paper focuses on the existing national accountability regimes that apply over private contractors. First, it compares four different legislative regimes relating to private contractors' prosecution for their wrongful acts, namely the greatest exporters of PMSCs, such as the USA, the UK, South Africa and Germany, and assesses their effectiveness based on their contribution to the prosecution of private contractors for their misconduct. Consequently, thereafter, in the context of the absence of an international prosecution model for human rights violations by PMSCs, this paper suggests a national prosecution model, which may encourage States to fulfil their obligations under human rights law by better regulation of PMSCs’ operations.
Current National Legislative Pathways to Prosecute Private Contractors for Human Rights Breaches
As a result of the international community’s failure to enact decisive measures to control PMSCs' activities and establish an international accountability body to hold private contractors responsible for serious human rights violations, States have postponed the adoption of effective national legislative mechanisms to govern PMSCs and for their employees.32 From PMSCs’ perspective, the enforcement of national regulation in relation to PMSCs’ activities also promotes the safety and wellbeing of private contractors during their activities. For instance, following the killing of four Blackwater’s employees in Fallujah in 2004, their families investigated legal proceedings against Blackwater, claiming that the company sent the four employees into Iraq’s hostilities without the adequate equipment and training.33
Overall, the lack of a coherent governance framework serves only to enhance the perception that PMSCs enjoy legal impunity in conflict zones.34 For example in 2005 four military veterans who were hired by Custer Battles and later were accused of using brutal tactics against unarmed Iraqi civilians, including children. This case against Custer Battles was eventually dismissed, as there was no evidence, this reinforced that perception.35 The lack of accountability and oversight mechanisms has been further amplified by the annual report of Amnesty International in 2006, where it was pointed out that at least twenty incidents of abusing and humiliating civilians were forwarded by the US Department of Defense and the Central Intelligence Agency to the Department of Justice for prosecution. Yet only one PMSCs contractor was indicted,36 two were dismissed and seventeen cases remain open.37
The United States of America
Since the U.S. is one of the major exporters of private military and security services to many unstable environments,38 it is the best choice to examine the national regulations aimed at prosecuting private contractors for human rights abuses. In order to ensure that private contractors were accountable for their actions, the U.S. government has adopted some administrative arrangements as a means of control. In 2000, the Congress passed the Military Extraterritorial Jurisdiction Act (MEJA).39 The MEJA is the only U.S. legal instrument that applies to any American contractor living and/or operating abroad.40 Initially, the MEJA only applied to those civilians who were either employed by, or accompanied security operation authorised by the U.S. Department of Defence. Most notably, in the case of the U.S.A. v. Gatlin, the U.S. Court of Appeal of the second Circuit argued that there was no jurisdiction relating to the crimes committed abroad by U.S. nationals.41 However, the subsequent 2004 amendment to MEJA was added with an aim of including all private contractors under its jurisdiction.42 In particular it provides jurisdiction over private contractors who ‘’are employed by or accompanying armed forces outside the U.S.A.’’43 , which includes private contractors and sub-contractors not only under the U.S. Department of Defence, but also under ‘’other federal agencies and/or provisional authorities’’.44
For example, in the Blackwater’s scandal was used lethal force, in 2008 five Blackwater’s employees were indicted under MEJA for their misconduct45 . At the first instance, the defendants claimed that the court had no jurisdiction to preside over the case, since they were hired by the U.S. Department of State and not by the U.S. Department of Defence.46 The District Court of Columbia dropped the case. However, in 2011 the DC Circuit Court of Appeals overruled this decision and the U.S. Supreme Court instigated the proceedings against the defendants.47 Eventually, successful prosecutions under MEJA occurred. In particular, private contractors faced convictions under MEJA for child pornography,48 sexual harassment49 and assaults.50
In addition to the MEJA, accountability issues concerning private contractors are governed under the War Crimes Act of 1996.51 This Act criminalises any crime committed by or against a member of the U.S. armed forces.52 However, to date no one has been prosecuted under this Act. At the same time, the Uniform Code of Military Justice (UCMJ)53 can also apply to misconduct by U.S. civilians ‘’supporting the U.S. national armed forces in declared war and contingency operations’’.54 However, none of the U.S. Supreme Court’s decisions have involved private contractors; despite the fact that their misconduct took place during hostilities.55 In particular, US Supreme Court, in the case of U.S. ex rel. Toth v. Quarles did not speak “directly of the issue of court-martial jurisdiction over contractor employees or to the issue of jurisdiction during active military hostilities as contemplated by [the] UCMJ […] which provides for court-martial jurisdiction over persons serving with or accompanying an armed force […] during time of war”.56 Even though the UCMJ states that the national courts should have jurisdiction relating to PMSCs’ misconducts, in the case of U.S.A. v. Averette,57 the Court of Appeals for the Armed Forces argued that the court had no jurisdiction to decide this case, since the war in Vietnam was not declared by the Congress.58 On the other hand, Stigall59 states that “any person who commits a crime and accompanying the national armed forces, falls within the national courts’ jurisdiction either as U.S. citizen or a third-state national”. To override these difficulties, in 2007 the UCMJ was revised to allow military jurisdiction ‘’in time of declared war and contingency operations’’60 over ‘’persons serving with or accompanying the armed forces in the field’’.61 However, the prosecution of civilians under the UCMJ is constitutionally barred. In Reid v. Covert case, the U.S. Supreme Court held that the U.S. Constitution prohibits the prosecution of civilians by court-martials, as it lacks trial by jury.62 Only one reported case can be cited in support of a successful use of the UCMJ to hold private contractors accountable for human rights violations.63
Finally, under the Alien Tort Claims Act, a civil claim can be brought by an alien (foreign resident) against PMSCs whose employees commit human rights abuses for monetary compensation64 . In particular, in 2007 a complaint was filed with the U.S. District Court for the District Court of Columbia against Blackwater on behalf of an injured survivor and the families of some of the victims.65
The United Kingdom
The U.K. is also another home State for some of the largest PMSCs, such as the Group 4 Securicor and Aegis. As a result, the U.K.’s approach towards governing PMSCs is to follow a two-fold policy regarding the regulation of their operations66 and for PMSCs,67 the industry's initiatives.68
Where human rights violations occur by private contractors, the U.K. government has a wide range of legislation which can apply to them69 . First, the Foreign Enlistment Act of 187070 remains the only legal pathway that directly applies to the activities of PMSCs’ and their employees, even when they operate abroad. However, no prosecution has ever been brought successfully under this Act, due to the difficulty of gathering information regarding non-State actors’ operations abroad. Since most of the British PMSCs operate abroad, including Iraq and Afghanistan, there is a requirement that the jurisdiction over extraterritorial activities be extended.71 As emphasized in the case of Bici v. Ministry of Defence,72 the High Court found that a soldier who violated his duty to prevent injury to the public by deliberately firing at them was liable. However, extended jurisdiction over military operations is often refused first, on grounds that they are ‘’forces of the Crown’’ –it could be said that PMSCs’ are acting on behalf of the Queen; and secondly, on a broader implementation of the Human Rights Act of 199873 which stipulates that the State has to secure that everyone within its jurisdiction enjoys the rights and freedoms defined in the European Convention on Human Rights.
Moreover, Lord Justice Rix explored the application of the Human Rights Act 1998 to the extraterritorial activities of the armed forces in R (Al-Skeini and Others) v. Secretary of State of Defense.74 He highlighted that the Article 175 of the European Convention on Human Rights 1950 (ECHR) – therefore, the Human Rights Act applies not only on a territorial basis, but also in cases where the State exercises effective control over the operation.76 Therefore, it follows that the Human Rights Act can apply to British-controlled detention facilities abroad. Accordingly, an individual who has been subjected to human rights abuses by private contractors would be able to bring its case before the British courts, but only if the PMSC’ misconduct is attributable to Britain.77
Another way of holding private contractors liable for human rights violations when operating as a PMSC is to exercise jurisdiction through the International Criminal Court Act of 2001.78 To date, only one soldier has been tried by a court-martial for abusing prisoners in Iraq in this way.79 However, the application of the 2001 Act is restricted since PMSCs do not typically operate in war zones and more over, they are not engaged in offensive military actions. Furthermore, the activities of PMSCs within Britain’s territory are directly regulated and monitored by the Private Security Industry Act 2001(PSIA)80 . The main goal of this Act is to protect citizens from the negligent and harmful practices of private security companies. However, in recent years, the PSIA has tried to hold PMSCs accountable81 by stipulating that a private contractor ‘‘shall be guilty of that offence and liable to be proceeded against and punished accordingly''.82 This illustrates that ’’where an offence […] is committed by a body corporate and is proved to have been committed with the consent […] of […] a direction, manager, secretary or other similar officers of the body corporate [..] he [..]’’83 is criminally liable. Despite the establishment of contractors' accountability, the Private Security Authority84 does not have competence to examine such allegations. The Authority is only responsible for granting or refusing to grant licenses to PMSCs' employees and supervising the self-regulation administrative functions contented in the Act.85Apart from the existing legislative context, the UK has initiated negotiations for the adoption of a regulatory regime regarding the PMSCs’ activities. In 2002, the U.K.’s Foreign and Commonwealth Office launched the ‘’Private Military Companies: Options for Regulation’’,86 which outlined how an appropriate framework for the regulation of PMSCs' activities could be achieved. This so called Green Paper,– provides ''options for the control of private military companies which operate out of the UK, its dependencies and the British Islands''.87 Not only did the Green Paper stress the lack of clear lines of accountability, 88 but also private security industry welcomed any proper regulation from the UK government, provided self-regulation was an integral part of the process.89 Yet, the British Association of Private Security Companies (BAPSC) claims that they are working towards the harmonization of industry standards through voluntary codes of conduct, but it is a weak obstacle fro the prevention of abuse.
South Africa
South African Republic is addressing the growth of PMSCs and the challenges posed by the use of mercenaries in the African continent, as it has the most effective legal regime regarding the regulation of PMSCs' activities. This is not a surprising fact since that country used to be a major exporter of PMSCs in the post-apartheid era.90 After their first democratic elections in 1994, the South African Constitution is the primary source of law that applies to the private military and security services.91 The new government’s willingness to give direct and decisive response to Executive Outcomes' involvement in Sierra Leone in 1995,92 led to the adoption of the Foreign Military Assistance Act of 1998 (FMAA).93 The FMAA sets out a restrictive structure with regard to the engagement of any national with the training and/or financing of any military and security assistance abroad.94 In addition to the establishment of an authorization and registration regime of PMSCs and their employees, the FMAA contains provisions for the prosecution of private contractors when a violation of FMAA provisions occurs.95 In Rouget v. S., the involvement of a former French soldier who was convicted for recruiting mercenaries in South Africa to participate in the civil war in Ivory Coast.96 Furthermore, in Zimbabwe case a former British officer was found guilty of trying to supply weapons in order to overthrow the government of Equatorial Guinea, including South Africans, although only two of them were fined because of the lack of evidence.97
Despite the limited cases that have been brought before the national courts under the FMAA, in order to comprehensively implement the FMAA, several concerns need to be addressed. First, relates to the gathering of information and evidence to secure the convictions, whilst the second to the problematic extraterritorially enforcement of certain FMAA’s provisions. In order to overcome these shortcomings, the government replaced the FMAA with the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act of 2006 (Mercenary Act).98 The Mercenary Act applies to any South African citizen or permanent resident, any incorporated, or registered company, or any foreign citizen, who contravenes the provisions of the Mercenary Act within the borders of the South Africa.99 Therefore, a citizen who recruits or trains mercenaries within or outside of the territory of the Republic falls under the scope of the Mercenary Act. A foreign citizen would come within the jurisdiction of the Mercenary Act, if the recruitment, training or financing takes place within the borders of the South Africa.
Even so, the Mercenary Act 2006 leaves certain loopholes regarding the prosecution of foreigners even if where they operate within the territory of the State or extraterritorially, under the domestic courts, the International Criminal Court Act could provide a possible pathway for punishing private contractors who have committed any misconduct.100 That legislative context applies to any person accused of commissioning genocide, crimes against humanity and war crimes within the territory of the South Africa and under certain circumstances, beyond its borders.
Germany
Despite some similarities in historical terms, European domestic approaches towards regulating PMSCs’ activities differ. According to one writer, Bazatu101 finds four different approaches to domestic regulation of PMSCs’ operations and classifies then as follows: First, some States lack altogether a national framework, as in the case of Cyprus. Secondly, some countries adopt a more decentralized approach, for instance Switzerland and Italy. Others, including Ireland and the U.K., adopt a more specific approach regarding PMSCs’ operations within their territory. Finally, States such as Germany and Austria have a more permissive approach based on the application of general commercial regulatory rules over PMSCs’ conduct. In addition, the fact that compliance with human rights law and humanitarian law is one of the top priorities within the EU policies.102 This is evidenced by the EU endorsement of the Montreux Document. Through its attempt the EU has yet to harmonize the domestic regulations in relation to PMSCs’ operations.103
An example of a permissive approach is Germany. It is a home State for several PMSCs offering protection to persons, buildings and cash-in-transit operations, but there is no explicit domestic regulation to monitor such activities. Despite Germany's opens support to the effective application of the Montreux Document, it has a restrictive view with regard to the outsourcing of military and security functions abroad.104 However, when an allegation against a private contractor is made regarding human rights violations, German criminal law fully applies to the private contractors’ misconduct.105 In cases, where these companies operate within the territory of a third State, the application of the German criminal law requires that a link exists to the official German Armed Forces106 before the law can be applied. For instance, Germany has enacted agreements with regard to the promotion criminal prosecution and co-operation on criminal matters for offences committed by PMSCs within the territory of a third State. As an example, the Law on International Legal Assistance in Criminal Matters covers any co-operation for the extradition and execution of non-German court decisions.107
Apart from that, the German Criminal Code is entirely applicable to PMSCs’ employees. For instance, in 2010, the German Federal Government observed that ‘’employees of private security companies […] are bound by international humanitarian law and can be prosecuted by domestic courts or the International Criminal Court if they have committed war crimes in armed conflicts’’.108 Taking into account the principle of personality for the private contractor, it is easy for him/her to be prosecuted for offences committed abroad based on his/her German nationality.109 Additionally, the Federal High Court of Justice highlighted that in case of a PMSCs’ misconduct, State has the ultimate responsibility for grave breaches of international law committed by private contractors.110 Thus, in the case of Former Yugoslavia,111 the Federal High Court of Justice claimed that in the absence of connection between a private act and the German official authority, the States could evade international responsibility.112 Thus, in order to hold Germany responsible for violations committed by PMSCs, the nexus between them should be proved.113
Therefore, in summary, the discussion above shows that in terms of regulatory schemes, the following approaches are drafted.
| United States of America | United Kingdom | South Africa | Germany | |
|---|---|---|---|---|
| National Regulatory Framework over PMSCs’ Activities | Yes | No | Yes | No |
| Adjudicating Pathways to Prosecute Private Contractors in Case of Misconduct | Yes | No | Yes | Yes |
| National Laws with Extraterritorial Application over Private Contractors’ Misconduct | Yes | Yes | Yes | Yes |
| Support for the Montreux Document | Yes | Yes | Yes | Yes |
| PMSCs endorsed the ICoC | 64 | 208 | 22 | 13 |
| Self-Regulation system | Yes | Yes | No | No |
| Support for the U.N Draft Convention on PMSCs | No | No | Yes | No |
Overall, this table highlights that the absence of a coherent and binding international regulatory scheme relating to the PMSCs’ activities makes States to deviate from their obligation to establish relevant mechanism to monitor and control PMSCs’ activities.
The Absent International Model for the Prosecution of Human Rights Violations by PMSCs
The extensive involvement of PMSCs in unstable environments gives rise to some of the most notorious human rights abuses, such as the shooting at Nisour Square114 and the Abu Ghraib scandal.115 These incidents revealed the lack of transparent mechanisms regarding PMSCs’ activities and more distantly the absence of mechanisms to hold private contractors accountable for such violations.116 Consequently, individual States are motivated to work towards the establishment of national and international accountability mechanisms to punish perpetrators and to provide victims with effective remedies. However, the aforementioned analysis of national mechanisms demonstrates that States avoid the adoption of a coherent accountability framework for PMSCs’ misconduct. For example, in 2008, the USA failed to control effectively PMSCs’ activities, and the Department of Justice was unable and/or unwilling to hold them criminally liable for acts of excessive violence or abuse by private contractors.117 This shows that the adoption of a clear national legal framework to govern PMSCs’ conduct remains problematic,118 yet it is required for States to establish a comprehensive regime to monitor PMSCs’ activities by registration and licensing these companies and regulating the variety types of functions that they can perform.119 Moreover the Working Group on Mercenaries emphasized that States must also be able to prosecute where violations of human rights law and/or international humanitarian law occur, in order to ensure accountability.120
Despite these efforts, there is a need to hold private contractors accountable for their misconduct; the transnational nature of PMSCs’ activities helps them to avoid national regulation and the jurisdiction of national courts. Therefore the enactment of a coherent international legally binding framework for PMSCs which could supplement the national regimes is needed, such as the UN Draft Convention. However, to date the international efforts seem to have failed for three main reasons. First, their voluntary nature means that all current international initiatives that address PMSCs directly, such as the Montreux Document, do not have a binding nature. Secondly, they lack an oversight and enforcement mechanism in order to secure accountability for private contractors for human rights violations. Thirdly, they do not establish a judiciary body that could examine complaints concerning human rights violations by private contractors. A case in point is the Montreux Document. It is the most popular and detailed restatement of well-established States’ obligations under international humanitarian law and human rights law regarding PMSCs’ activities and their personnel. Even though, it is not a legally binding document, it encourages States to establish national monitoring and supervision bodies to regulate PMSCs’ activities instead of an international one. However, it continues to hold the status of soft law.121 Additionally the Montreux Document has limited application to PMSCs' activities, since according to its title; it applies only in situations of armed conflicts.122
Despite its limited effect, the Montreux Document has led to the development of the International Code of Conduct for Private Security Providers (ICoC).123 Its great significance relates to the need to achieve higher standards for PMSCs from an industry perspective. Since it is a non-governmental initiative, the ICoC does not address issues of accountability of PMSCs and their employees for human rights allegations. Accordingly, the voluntary nature of this document means that it cannot meet the goal of ensuring that all PMSCs are addressed. The aforementioned international initiatives have not been implemented; the Human Rights Council proposed that only an international legally binding instrument would ensure that States adopt minimum standards to regulate PMSCs' activities. To that extent, Gomez del Prado suggested that a binding document will cover all the types of PMSCs' functions and their impact on the enjoyment of human rights, the registration and authorization regime to monitor PMSCs' operations, the ensuring of accountability when it is necessary and the provision of remedies for the victims.124 The U.N. Draft Convention on PMSCs constitutes the first international effort which envisages an international system of oversight and monitoring for PMSCs' activities - named Committee on the Regulation, Oversight and Monitoring of PMSCs (Committee on PMSCs). The Committee on PMSCs is required to collect periodical reports on the legislative, judicial, administrative and other measures that States must adopt to implement sufficiently the Convention on PMSCs.125 Moreover, in case of ''grave and/or systematic'' violations of human rights, the Committee on PMSCs has to launch in loco investigations.126 To that end, the U.N. Draft Convention establishes a twofold complaint mechanism, namely the Inter-state Complaint Mechanism and the Individual and Group Petition Procedure.127
Conclusions
In the absence of a coherent and binding international framework regarding the regulation of PMSCs’ activities and an accountability mechanism for the punishment of private contractors for human rights violations, States are required to develop domestic regulations to comply with the international standards.128 In Seiberth129 view, one of the main aims of the Montreux Document was to raise awareness with regard to legal challenges posed by PMSCs and to make some non-exclusive recommendations on how domestic legal regimes could sufficiently respond to these challenges.
Despite the fact that, the Montreux Document provides common guidelines for all States, that is contracting, territorial and home States, in order to achieve an efficient national regulatory regime for PMSCs’ operations and a sufficient accountability mechanism for private contractors’ misconduct, States implemented these recommendations differently. For instance, following the endorsement of the Montreux Document, the U.S.A. opted for the revision of the Defense Federal Acquisition Regulation Supplement, Defense Department Instructions and Combatant Commander Orders.130 Moreover, in order to increase the operational standards for PMSCs’ functions, the USA enacted the Public Law 111-383 (2011).131 According to Section 833 of this Act, the USA adopted high standards and strict certification criteria for private security contractors. 132 For example, this Act incorporates the principles of the Montreux Document into its framework. In particular, contractors must ensure training and awareness on human rights law, such as the prohibition of torture, the protection of relevant culture and religion,133 and also contractors must establish, implement, and maintain procedures to ensure respect for human rights.134 In contrast, some States are unwilling to enact separate and additional legislative measures to implement the principles of the Montreux Document. One such example is South Africa. Even if South Africa endorsed the Montreux Document and fully supported the dissemination of the Montreux Document’s standards,135 it prefers to wait until the negotiations for the adoption of a binding international convention come to an end. The main reason for this approach is that South Africa believes that the adoption of an international binding norm in a form of the U. N. Draft Convention on PMSCs would be more direct and effective than the non-binding normative provisions of the Montreux Document.136 Moreover, the endorsement of the ICoC by the South African PMSCs is akin to the implementation of the Montreux Document’s standards.137 The same approach has been adopted concurrently by some European States, such as Germany.138 Despite the fact that European Union has joined the Montreux Document in 2012 and recognized the high significance of the international principles that are contained therein, Germany considers that there is no reason to enact additional legislative measures to regulate and monitor PMSCs’ activities.139 In addition to the aforementioned comparative analysis, Germany holds one of the most effective mechanisms to establish criminal sanctions on private contractors for their misconduct.
As a parallel process to the Montreux Document, the United Nations ‘’Protect, Respect and Remedy’’ Framework140 highlights that States have the primary role in preventing and addressing human rights violations committed within their territory and/or jurisdiction.141 Thus, States have to undertake all appropriate policies, regulations and adjudication measures to prevent human rights abuses, which may be committed by third parties –including those committed by PMSCs. While some States are moving in the right direction as described previously, they fail to enforce their existing laws over PMSCs’ activities and their employees’ misconduct – as was the case with legal action against Blackwater. This failure is caused mostly by the inconsistency between the departments that have the overall and direct control of PMSCs’ operations. For instance, the U.S.A. International Traffic in Arms Regulations is responsible for the Arms Export Control Act during a PMSC operation and not for the supervision whether the private contractors’ behaviour is in accordance with the human rights standards.142
Moreover, as part of their inherent international duty to protect human rights, States have to enact those specific and direct national regulatory measures in order to ensure that in case of any possible violation that may occur within their territory and/or jurisdiction by PMSCs, the victims should have access to effective remedy.143 In cases of the PMSCs-related human rights claims, todate there are limited non-judicial mechanisms that provide remedy to those affected by PMSCs operations. More specifically, some States that have signed the OECD Guidelines on Multinational Enterprises144 – including the UK, established National Contact Points as a non-judicial grievance mechanism. Therefore, States must adopt a national legislative framework, which will directly address to PMSCs and their personnel. In this regard, the UK Private Security Industry Act is a prime example, but some additional changes are required. For example, a national initiative has to set out specific requirements regarding the registration regime and licensing of PMSCs and their employees, outline explicit standards about the training and vetting of the private contractors according to human rights principles and humanitarian law standards and also accountability for possible human rights violations in the event that these occur. Moreover, the establishment of an oversight mechanism under this initiative is essential in order to supervise the registration procedures and examine human rights allegations against private contractors. Consequently, such a model has to have extraterritorial application in order to provide access to remedies for the victims irrespective of where the violations may have been committed.
*Zafeiris Tsiftzis, University of Bolton, School of Law, Doctoral Candidate in Human Rights Law
1 In the last two decades, States relied on business entities to perform military and security services, which prior to that, had been performed by national armed forces. This practice has initially begun during the wars in Iraq and Afghanistan and now on the use of private entities is widespread, covering for example anti-piracy operations in the Horn of Africa and combatting drug trafficking in Latin America. See Kateri Carmola, Private Security Contractors and New Wars: Risk, Law and Ethics (London: Routledge, 2010); Deborah V. Avant, The Market of Force: the Consequences of Privatizing Security (Cambridge: Cambridge University Press, 2010). See also United Nations Working Group on the Use of Mercenaries as Means of Impending the Exercise of the Right of Peoples to Self-determination, ‘Why We Need an International Convention on Private Military and Security Companies’ (17 May 2011) U.N. Doc. A/HRC/WG.10/CRP.1, para. 1. See also Tanya Cook, 'Dogs of War or Tomorrow's Peacekeepers? The Role of Mercenaries in the Future Management of Conflict' (2002) 5:1Culture Mandala, Article 1. Bassiouni argued that the proliferation of non-state actors in conflicts and post-conflicts environment emerged the concept of the ‘’new culture of wars’’. Cherif M. Bassiouni, ‘The New Wars and the Crisis of Compliance with the Law of Armed Conflicts by Non-State Actors’ (2008) 98 Journal of Criminal Law and Criminology 711, 717. To that extent, that ‘’new culture of war’’ is based on a general enthusiasm of States to outsource their functions and also on a growing reluctance by them to intervene in conflicts which are not of their particular strategic interests. See Simon Chesterman and Chia Lehnardt (eds.), From Mercenaries to the Market: The Rise and Regulation of Private Military Companies (Oxford: Oxford University Press, 2007) 1.
2 See Swisspeace, The Impact of PMSCs on the Local Population in Post – Conflict Countries: A Comparative Study for Afghanistan and Angola (Bern, 2007); Antonio Giustozzi, ‘The Privatization of War and Security in Afghanistan: Future or Dead End?’, (2007) 2:1 Economics of Peace and Security Journal, 30, 31. See also José Luis Gómez del Prado, ‘Impact in Human Rights of Private Military and Security Companies’ Activities’, U.N. Working Group on the Use of Mercenaries, page 2,
3 The incidents of Abu Ghraib constitute the cornerstone for a longstanding political and legal discussion within the U.S.A. relating to the human rights obligations during military and security operations. See Shadi Mokhtari, After Abu Ghraib: Exploring Human Rights in America and the Middle East (Cambridge: Cambridge University Press, 2011). Accordingly several legal scholars started to focus on issues of attribution of PMSCS’ misconduct to States in order to bear international responsibility. See Robert McCorquodale and Penelope Simons, ‘Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law’ (2007) 70:4 The Modern Law Review 598; Joshua L. Pratel, The Torture Papers: The Road to Abu Ghraib (Cambridge: Cambridge University Press, 2005) 383; Michelle Brown, ‘Setting the Conditions for Abu Ghraib: The Prison Nation Abroad’ (2005) 57:3 American Quarterly 973; Jordan Paust, ‘Abuse of Iraqi Detainees at Abu Ghraib: Will Prosecution and Cashiering of a Few Soldiers Comply with the International Law?’ (May 10, 2004) Jurist, < http://www.jurist.org/forum/paust1.php> accessed on January 2015; ‘Iraq Prison Abuse Scandal – Fast Facts’ (CNN Library, 7 November 2014)
4 The ‘Tabuga Report’ On Treatment of Abu Ghraib Prisoners in Iraq, Article 15-6 Investigation of the 800th Military Police Brigade, Part One: Detainee Abuse 15,
5 The International Zone known as ’the Green Zone’ was a guarded area of closed-off streets in central Baghdad whereas the US governments officials were living and working.
6 James Glanz and Alissa J. Rubin, ‘From Errand to Fatal Shot to Hail of Fire to 17 Deaths’ (The New York Times, 3 October, 2007) < http://www.nytimes.com/2007/10/03/world/middleeast/03firefight.html?pagewanted=all&_r=0 > accessed on January 2015.
7 House of Representatives, Committee, on Oversight and Government Reform, Congress of the U.S.A., ‘Memorandum: Additional Information on Blackwater U.S.A’, 01/10/2007, 6.
8 Institute for Human Rights and Business, Submission to the United Nations Human Rights Council Universal Periodic Review – Session 16: Colombia, October 2012, 1
9 Robert Capps, ‘Outside the Law’, (Salon, 26 June 2010)
10 Peter W. Singer, ‘War, Profits and the Vacuum of Law: Privatised Military Firms and International Law’ (2003/4) Columbia JTC 521. See also Antoine Perret, ‘Privatization without Regulation: The Human Rights Risks of Private Military and Security companies (PMSCs) in Mexico’ (2013) 6:1 Mexican Law Review 163.
11 Kamminga and Zia-Zarifi argued that the multinational character of (PMSCs) operations and the ‘amorphous structure’ of those companies make them immune from the control of States. Therefore, it requires to be regulated at international level. See Menno T. Kamminga and Saman Zia-Zarifi, ‘Liability for Multinational Corporations under International Law: An Introduction’ in Menno T. Kamminga and Saman Zia-Zarifi (eds.), Liability for Multinational Corporations under International Law (The Hague/London/Boston, Kluwer Law International, 2000) 3.
12 Emily Kelly, ‘Holding Blackwater Accountable: Private Security Contractors and the Protections of the Use Immunity’ (2013) 35:3 Boston College International and Comparative Law Review 17. See also Vice-President’s of the International Red Cross Committee statement Christine Beerli, ‘Private Military/Security Companies: Rules should be Implemented, Keynote Address by Chrisine Beerli, Montreux +5 Conference’ (Montreux, Switzerland, 11-13 December 2013) < https://www.icrc.org/eng/resources/documents/statement/2013/12-11-privatization-of-war-montreux-plus-5-beerli.htm>.
13 Peter W. Singer, The Private Military and Security Industry in Iraq: What Have We Learned and Where to Next (Geneva Centre for the Democratic Control of the Armed Force, Policy Paper, 2004) 14.
14 See the abstract of José Luis Gómez del Prado, 'A U.N. Convention on PMSCs?' (2012) 31: 3 Criminal Justice Ethics 262. One of the primary reasons that this market continues to be unregulated is the transnational character of PMSCs’ activities. See Deborah V. Avant, The Market of Force: the Consequences of Privatizing Security (Cambridge: Cambridge University Press, 2010) 144.
15 Janos Kalman, ‘The International Regulation or Private Security Providers: A Brief Analysis in ‘Janos Kalman (ed.), Legal Studies on the Contemporary Hungarian Legal System (Universitas – Gyor Ltd, 2014) 148.
16 The Montreux Document adopted by the United Nations General Assembly (A/63/467–S/2008/636)
17 See The Montreux Document, Part I: Pertinent International Legal Obligations Relating to Private Military and Security Companies, supra note 8, A. 5, B. 11, C. 16 and D. 20. Cockayne analyses more the contribution of the Montreux Document in improving the standards of accountability for private contractors’ misconduct. See James Cockayne, ‘Regulating Private Military and Security Companies: The Content, Negotiation, Weaknesses and Promise of the Montreux Document’ (2008) 13:3 Journal of Conflict and Security Law 401.
18 Ibid.
19 Status-of –Forces Agreements (SOFAs) are agreements between the host State and a State stationing military force within the territory of that State. SOFAs are also included along with other types of military agreements, as a comprehensive security agreement. See also Chunk R. Mason, Status o Forces Agreement (SOFA): What Is It and How It Been Utilized? (CRS Report for Congress, 15 March 2012).
20 See Explanatory Comments to the Montreux Document, 40
21 According to the Coalition Provisional Authority (CPA) Order No 17, the agreement that was signed between the Iraqi government and the U.S.A. Department of Defence regarding the use of private contractors in military operations states ‘’Contractors shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contracts […]’’. See National Legislative Bodies/National Authorities, Iraq: Coalition Provisional Authority Order No. 17 of 2004 (Revised), Status of the Coalition Provisional Authority, MNF - Iraq, Certain Missions and Personnel in Iraq, 27 June 2004
22 It is worth to be noticed that States usually adopt specific legislative procedures in order to exercise exclusive jurisdiction over their nationals. Thus, their citizens are excluded from the possibility of surrender to the jurisdiction of another State. Micaela Frulli, ‘Immunity for Private Contractors: Legal Hurdles or Political Snags?’ in Francesco Francioni and Natalino Ronzitti (eds.), War by Contract: Human Rights, Humanitarian Law and Private Contractors (Oxford: Oxford University Press, 2011) 448, 460.
23 For an overview of the U.S. policy see at Marco Roscini, ‘The Efforts to Limit the International Criminal Court’s Jurisdiction Over Nationals of Non-Party States: A Comparative Study’ (2006) 5 The Law and the Practice of International Courts and Tribunals 495. Giulia Pinzauti, ‘The Blackwater Scandal: Legal Black Hole or Unwillingness to Prosecute Private Military Contractors?’ (2007) 17 Italian Yearbook of International Law 125. See also Reema Shah, 'Beating Blackwater: Using Domestic Legislation to Enforce the International Code of Conduct for Private Military Companies’, (2014) 13 The Yale Law Journal 2559, 2561. Moreover, L. S. Ebner described in detailed difficulties regarding the prosecution of private contractors under the USA federal laws. He concluded that it is unfortunate for the U.S.A. to 'get stuck by non-establishing liability suits for those who are ''holding the bag'' of the American military operations. See Lawrence S. Ebner, 'Defending Battlefield Contractors: An Ongoing Jurisprudential War', (2013) Appellate Advocacy for the Defence, 32.
24 Nigel D. White, ‘Regulatory Initiatives at the International Level’ in Christine Bakker and Mirko Sossai (eds.), Multilevel Regulation of Military and Security Contractors: The Interplay between International, European and Domestic Norms (Oxford/Portland, Hart Publishing, 2012) 11, 12.
25 ‘Report of the UN Working Group (2009) UN Doc. A/HRC/10/14, para. 44.
26 This process is still undergoing. For the draft of a possible Convention on PMSCs see Report of the Working Group (2010) UN Doc. A/HRC/15/25, Annex 19. See also Benjamin Perrin, ‘Searching for Accountability: The Draft UN International Convention on the Regulation, Oversight, and Monitoring of Private Military and Security Companies’ (2009) 47 Canadian Yearbook of International Law 299.
27 Jose Luis Gomez del Prado, ’Private Military and Security Companies and the UN Working Group on Mercenaries’ (2008) 13 Journal of Conflict and Security Law 429.
28 Andrea Schneiker, ‘National Regulatory Regimes for PMSCs and their Activities: Benefits and Shortcomings’ in Thomas Jager and Gerarld Kummuel (eds.), Private Military and Security Companies: Chances, Problems, Pitfalls and Prospects (Verblag Fur Sozialwissenchaften 2007).
29 Fred Schreier and Marina Caparini, Privatising Security: Law, Practice and Governance of Private Military and Security Companies (Geneva Centre for the Democratic Control of Armed Forces, Occasional Paper – No 6, 2005) 117.
30 The possible ineffectiveness of national regulations derived from the transnational nature of PMSCs' operations. As Singer argues, in most cases, PMSCs are registered in one country, they operate within the territory of another one and they hire contractors from a third State. See Peter W. Singer, Corporate Warriors: the Rise of Privatized Military Industry (Ithaca: Cornell University Press, 2004).
31 Marina Caparini, ‘Regulating Private Military and Security Companies: the U.S.A. Approach’ in Andrew Alexandra, Deane –Peter Baker and Marina Caparini (eds.), Private, Military Companies: Ethics, Politics and Civil-Military Relations (London and New York: Routledge, 2008).
32 Ibid.
33 See Jeremy Scahill, ‘Blood Is Thicker Than Blackwater’, (The Nation, 8 May 2006)
34 Peter W. Singer, Can’t Win with ‘Em, Can’t Go to War without ‘Em: Private Military Contractors and Countersurgency, (Policy Paper, Washington DC: The Brookings Institute 2007) 12.
35 Dana Hedgpeth, ‘Judge Clears Contractor of Fraud in Iraq’, (The Washington Post, 9 Friday 2007)
36 This contractor was prosecuted and jailed for assaulting an Afghan detainee during interrogation who later died from his injuries. See U.S.A. vs. David Passaro, U.S.A. District Court for the Eastern District of North Carolina, Western Division, Case No.: 5:04-CR-211-(BO)-1 [2004]. See also John Hendren and Mark Mazzetti, ‘U.S. Charges Contractor over Beating of Afghan Detainee’ (Los Angeles Times, 18 June 2004)
37 See Amnesty International, Outsourcing Facilitating Human Rights Violations, Annual Report, 2006.
38 Jennifer K. Elsea, Moshe Schwartz and Kennon H. Nakamura, Private Security Contractors in Iraq: Background, Legal Status and Other Issues (CRS Report for Congress, 25 August 2007) 2.
39 The U.S.A. Congress passed the MEJA, concerned “the lack of U.S.A. criminal jurisdiction [over potential crimes] committed by civilians, including military dependents and contractors accompanying U.S.A. armed forces overseas”. See Reid v. Convert, 354 U.S.A. 1 [1957], U.S.A. Supreme Court [82].
40 US Department of Defense, Instruction Number 5525.11, 3 March3, 2005 < http://www.dtic.mil/whs/directives/corres/pdf/552511p.pdf>.
41 U.S.A. v. Gatlin, 216 F.3d 207, 211-12 (2d Cir. 2000). See also Glenn R. Schmidt,’ The Military Extraterritorial Jurisdiction Act: the Continuing Problem of Criminal Jurisdiction over Civilians Accompanying the Armed Forces Abroad-Problem Solved?’ (2000) 1 Army Law 1.
42 18 U.S.C., paras 3261-67.
43 Ibid.
44 Ibid. However, under the term of ‘’other federal agencies and/or provisional authorities’’, MEJA provides coverage only to those who have a function under the mission of the U.S.A. Department of Defense’’.
45 However, Tara Lee at her article on DePaul Rule of Law Journal in 2009 strongly supported that even MEJA is considered as the most appropriate jurisdictional mechanism for advocating crimes committed by private contractors, there are still other more appropriate legislative pathways. She came to that conclusion by observing that throughout MEJA war crimes are tried out as they are merely street crimes. See Tara Lee, MEJA for Street Crimes, NOT for War Crimes’ (2009) DePaul Rule of Law Journal 1.
46 ‘’These private security contractors were not engaged in employment supporting the DoD mission overseas and, therefore, are not subject to Federal criminal prosecution under the Military Extraterritorial Jurisdiction Act’’. See Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss for Lack of Jurisdiction: United States of America v. Slough et al, 677 FSupp2d 112, DDC [2009].
47 ibid.
48 U.S.A. Department of Justice, U.S.A. Attorney for the Eastern District of Virginia, Military Contractor Sentenced for Possession of Child Pornography in Baghdad [May 25, 2007].
49 U.S.A. v. Green, No 5:06 – CR- 19 R 2008 WL 4000873 [WB KY August 26 2008].
50 U.S.A. v. Maldorado, 215 Fed Approx. 938 2007 WL 27662 [11th Cir. January 31 2007].
51 18 U.S.C., para. 2441 (2006).
52 Ibid.
53 U.S.A. Code, Title 10, Subtitle A, Part II, Chapter 47.
54 Art. 2 para 802 (a) (10).
55 For instance the case of Kinsello vs. Singleton, 361 U.S.A. 234 [1960].
56 United States ex rel. Toth v. Quarles, 350 U.S. 11, 23 (1955); Jesse A Ouellette. ""In The Field" A Legal Analysis of Military Jurisdiction Over Civilian Contractors Accompanying the Armed Forces During a Contingency Operation for Offenses Committed Outside of an Area of Actual Fighting’’ (2014) 4:2 National Security Law 21. See also Steven Paul Cullen, ‘Out of Reach: Improving the System to Deter and Address Criminal Acts Committed by Contractor Employees Accompanying Armed Forces Overseas’ (2009) 38 Public Contract Law Journal 509.
57 See U.S.A. v. Averette et al., 19 C.M.A. 363 [1970].
58 Ibid, [365].
59 Dan E. Stigall, ‘An Unnecessary Convenience: The Assertion of the UCMJ over Civilians and the Implications of International Human Rights Law’ (2009) 17:59 Cardozo Journal of International and Comparative Law 59, 70.
60 John Warner, National Deference Authorization Act for Fiscal Year 2007, Pud L No 109-364 120 Stat 2083 (2006).
61 To that end, the Deputy Secretary of Defense, Gordon England issued a directive to senior officers in the Pentagon, reminding them that all the contractors who are hired under the U.S.A. Department of Defense are subject to the UCMJ and encouraging them to begin legal proceedings against those that have violated the U.S.A. military law.
62 Reid v. Covert 354 U.S.A. 1 39-41 [1957]. Also, the UCMJ’s jurisdiction is limited only to individuals possessing an official military status (Solorio v. United States 483 U.S. 435 450-51 [1987]). The uses of military courts to try civilians raised serious human rights concern. The U.N. Human rights Committed stressed out that the trial of civilians by military courts should be exceptional and occur only under conditions that genuinely afford full due process. See Human Rights Committee, ‘General Comment No. 32, Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial’ (2007) UN Doc CCPR/C/GC/32. See also Evelyne Schmid, ‘A Few Comments on a Comment: the U.N. Human Rights Committee’s General Comment No. 32 on Article 14 of the ICCPR and the Question of Civilians Tried by Military Courts’ (2010) 14:7 International Journal of Human Right 1058.
63 In June 2008, Alaa Mahammad Ali, a Canadian-Iraqi translator, became the first contractor convicted through a UCMJ prosecution. See ‘First Contractor Convicted under U.S. Military Law in Iraq’ (Reuters, 24 June 2008) http://www.reuters.com/article/2008/06/24/us-iraq-contractor-idUSL243864420080624 accessed on January 2015.
64 For an overview of the jurisprudence of the Alien Tort Claims Act see Beth Stephens, ‘Corporate Accountability: International Human Rights Litigation Against Corporations in U.S. Courts’ in Menno T. Kamminga and Saman Zia-Zarifi (eds.), Liability for Multinational Corporations under International Law (The Hague/London/Boston, Kluwer Law International, 2000) 209.
65 Estate of Himoud Atban et al v. Blackwater USA et al., U.S.A. District Court for the District Court of Columbia, No. 1:2007cv01831 - Document 37 [2009].
66 Corinna Seiberth, Private Military and Security Companies in International Law (Intersentia, 2014) 246.
67 Alexandra Bohm, Kerry Senior and Adam White, ‘The United Kingdom’ in Christine Bakker and Mirko Sossai (eds.), Multilevel Regulation of Military and Security Contractors: The Interplay between International, European and Domestic Norms (Oxford/Portland, Hart Publishing, 2012).
68 Regarding the self-regulation approach for PMSCs’ activities see Engeni Moyakine, The Privatized Art of War: Private Military and Security Companies and State Responsibility for their Unlawful Conduct in Conflict Areas (Intersentia, 2015) 132. See also Renee de Nevers, ‘(Self) Regulating War?: Voluntary Regulation and the Private Security Industry’ (2009) 18 Security Studies 479.
69 In any case, Michael Byers emphasizes that the British courts constitute the most desirable pathway to litigate abuses against private corporations. That is based on the deepen knowledge of the British judges for public international law. In particular, he highlights the decision of Trendex Trading Corp. vs. Central Bank of Nigeria –back in 1977- according to which the judges accepted the importance of customary international law as an inherent art of the British law. See Michael Byers, ‘English Courts and Serious Human Rights Violations Abroad: A Preliminary Assessment’, in Menno T. Kamminga and Saman Zia-Zarifi (eds.), Liability for Multinational Corporations under International Law (The Hague/London/Boston, Kluwer Law International, 2000) 3.
70 See Foreign Enlistment Act 1870 Chapter 90 33 and 34, http://www.legislation.gov.uk/ukpga/Vict/33-34/90/contents accessed on January 2015.
71 Alexandra Bohm, Kerry Senior and Adam White, ‘The United Kingdom’ in Christine Bakker and Mirko Sossai (eds.), Multilevel Regulation of Military and Security Contractors: The Interplay between International, European and Domestic Norms (Oxford/Portland, Hart Publishing, 2012) 312.
72 Bici v. Ministry of Defence (2004) EWHC 786. See also Mulcany vs. Ministry of Defence (1996) QB 732 and Bell and Others v. Ministry of Defence (2003) EWHC 1134.
73 See Human Rights Act 1998, http://www.legislation.gov.uk/ukpga/1998/42/contents accessed on January 2015.
74 R (Al-Skeini and Others) v. Secretary of State of Defense, Case No: CO/2242/2004, 14 December 2004, EWHC 2911.
75 The Article 1 stipulates the obligations of State Parties to respect human rights. In particular, it indicates that '' The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention''.
76 R (Al-Skeini and Others) v. Secretary of State of Defense, op. cit., paras. 248, 249, 265 and much better 270.
77 Kerry Alexander and Nigel White, The Regulatory Context of Private Military and Security Services in the United Kingdom (PRIV-WAR National Reports Series, United Kingdom National Report, 2009) 26.
78 See International Criminal Court Act 2001 Chapter 17,
79 See R. v. Corporal Payne (2007) unreported. See ‘’UK Soldier Jailed Over Iraq Abuse’’, BBC News, 30 April 2007, available at http://news.bbc.co.uk/1/hi/uk/6609237.stm (last accessed on January 2015).
80 See Private Security Industry Act 2001 Chapter 12, available at http://www.legislation.gov.uk/ukpga/2001/12/contents (last accessed on January 2015).
81 HC 922 (2001-02), Ninth Report of the House of Common Defence Committee: Private Military Companies (London: HMSO, 2002).
82 See Private Security Industry Act 2001 Chapter 12, Supplemental Section 23.
83 See Private Security Industry Act 2001 Chapter 12, Explanatory Notes, Commentary, Part II, Door Supervisors, etc for Public Houses, Clubs and Comparable Venues, Section 23.
84 The Private Security Authority is the monitoring body of the Private Security Industry Act 2001. Its primary responsibility is to oversee the effective implementation of the PSIA 2001 and to carry out the functions related to licensing. See Private Security Industry Act 2001 Chapter 12, Supplemental Section 1.
85 See Private Security Industry Act 2001 Chapter 12, Supplemental Section 1.
86 Foreign and Commonwealth Office, Private Military Companies: Options for Regulation (2001-02) HC 577.
87 Ibid, para. 1.
88 Ibid, para. 34.
89 Richard Norton-Taylor, ‘Miliband Urged to Regulate Private Military’, (The Guardian, 18 February 2008),
90 Caroline Holmquist, Private Security Companies: The Case for Regulation (SIPRI Policy Paper No9, 2005) 50.
91 According to the Annual Report of the Working Group on Mercenaries, the South Africa is the only anglo-speaking African State, which had specific legislation regarding the export of military and security services. See Annual Report of the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Rights of Peoples to Self-determination (A/HRC/24/45, 01/07/2013) para. 23.
92 Khareen Pech, ‘Executive Outcomes – A corporate conquest’ in Jakkie Cilliers and Peggy Mason (eds.), Peace, Profit and Plunder?: The Privatisation of Security in War-torn African Societies (Pretoria: Institute for Security Studies, 1999) 86.
93 South Africa Government Gazette Vol. 395, No. 18912, 20/05/1998. See also Raenette Taljaard, ‘Implementing South Africa’s Regulation of Foreign Military Assistance Act’ in Alan Bryden and Marina Caparini (eds.), Private Actors and Security Governance, (Geneva Centre for the Democratic Control of the Armed Forces: Geneva, 2006).
94 Andre Stemmet, ‘The South Africa Regulation of Foreign Military Assistance Act’ (2000) 145: 5 RUSI Journal 37.
95 Faustin Z. Ntoubandi, ‘South Africa: the Regulatory Context of Private Military and Security Services’ in Christine Bakker and Mirko Sossai (eds.), Multilevel Regulation of Military and Security Contractors: The Interplay between International, European and Domestic Norms (Oxford/Portland, Hart Publishing, 2012).
96 Rouget v. S. (2006) JOL 15962 (T) Case No. A 2850/3 (20/05/2005).
97 Case No 12967/2004 Kaunda and Others v. President of the Republic of South Africa and Others 2004 (5) SA 191 (T), and Case No CCT 23/04 Kaunda v. President of the Republic of South Africa 2005 (4) SA (CC).
98 South Africa Government Gazette Vol. 509, No. 30477, 16/11/2007,
99 Sections 11 (a) – (d) and 2 (a) – (b).
100 South Africa Government Gazette Vol. 445, No. 23642, 18/07/2002, Implementation of the Rome Statute of the International Criminal Court Act 2002,
101 Anne - Maria Buzatu, European Practices of Regulation of PMSCs and Recommendations for Regulation of PMSCs through International Legal Instruments (Geneva: the Geneva Centre for the Democratic Control of Armed Forces, 2008) 17
102 Concerning the use of PMSCs, the EU hires private security guards to protect EU offices, civilians and police missions. See Elke Krahmann, ‘The United States, PMSCs and the State Monopoly on Violence: Leading the Way Towards Norm Change’ (2013) 44 (1) Security Dialogue 62.
103 The EU endorsed the Montreux Document on July 2012
104 Corinna Seiberth, Private Military and Security Companies in International Law, (Intersentia, 2014) 249. In particular, core military and security activities can be outsourced to PMSCs only if they are related to internal security and not to external. See Answer by the German Government to Parliament, Bundenstag printed paper 15/5824, preliminary remarks, Answer No. 1a,
105 The German Government did not approve the application of court-martial jurisdiction over PMSCs’ employees. Bundestag printed paper 15/5824, preliminary remark, Answer No. 12,
106 Ralf Evertz, ‘Germany’ in Christine Bakker and Mirko Sossai (eds.), Multilevel Regulation of Military and Security Contractors: The Interplay between International, European and Domestic Norms (Oxford/Portland, Hart Publishing, 2012) 228.
107 See Law on International Legal Assistance in Criminal Matters (IRG) of December 23, 1982. See more on Commission on Crime Prevention and Criminal Justice, Requesting Mutual Legal Assistance in Criminal Matters from G8 Countries: A step-by-step guide (E/CN.15/2011/CRP.6, 12 April 2011) 16.
108 Germany, Lower House Federal Parliament (Bundestag). Reply by the Federal Government to the Minor Interpellation by Members Inge Hoger, Jan Aken, Christine Buchholz, further Members and the Parliamentary Group Die linked, BT-Drs, 17/4012, 1 November 2010, 9.
109 Ralf Evert, Regulation of Private Military, Security and Surveillance Services in Germany (PRIV-WAR Report Germany, National Reports Series 16/09, 2009) 12.
110 The issue of State responsibility rises only if the PMSCs’ mission has been authorised by a governmental authority. See Ralf Evertz, ‘Germany’ in Christine Bakker and Mirko Sossai (eds.), Multilevel Regulation of Military and Security Contractors: The Interplay between International, European and Domestic Norms (Oxford/Portland, Hart Publishing, 2012) 229.
111 The case was concerned the destruction of a bridge by an aerial attack during the NATO operation in Kosovo (KFOR) in 1999.
112 Germany, Federal high Court of Justice, 35 Citizens of the Former Yugoslavia v. Germany. Appeal Judgment, 2 November 2006, Oxford Reports on International Law in Domestic Courts, No 887. See also Antonio Cassesse and Guido Acquaviva (eds.), The Oxford Companion to International Criminal Justice (Oxford: Oxford University Press, 2009) 738.
113 Ibid, paras 20 -23.
114 Charles Tiefer, ‘No More Nisour Squares: Legal Control of Private Security Contractors in Iraq and After’, (2009) 88:3 Oregon Law Review 745.
115 Joel Brinkley and James Glanz, ‘The Struggle for Iraq: Civilian Employees; Contract Workers Implicated in February Army Report on Prison Abuse Remain on the Job’ (New York Times, 4 May 2004)
116 See Dawn L. Rothe and Jeffrey I. Ross, ‘Private Military Contractors, Crimes and the Terrain of Unaccountability’ (2010) 27:4 Justice Quarterly 593; see also Working Group on the Use of Mercenaries as Means of Impending the Exercise of the Right of Peoples to Self-determination, Why We Need an International Convention on Private Military and Security Companies (U.N. Doc. A/HRC/WG.10/CRP.1, 17 May 2011) para. 2.
117 Eric De Brabandere argued that in the most cases the unwillingness of the local government to protect human rights and/or their inability to ensure that protection effectively could give impunity to PMSCs and their employees for their misconduct. See Eric De Brabandere, ‘Human Rights Obligations ad Transnational Corporations: The Limits of Direct Corporate Responsibility’ (2010) 4:1 Human Rights and International Legal Discourse 72.
118 Jon D. Michaels, ‘Beyond Accountability: The Constitutional, Democratic ad Strategic Problems with Privatizing War’ (2002) 82 Washington University Law Quarterly 1001.
119 See United Nations Working Group on the Use of Mercenaries as Means of Impending the Exercise of the Right of Peoples to Self-determination, ‘Why We Need an International Convention on Private Military and Security Companies’ (17 May 2011) U.N. Doc. A/HRC/WG.10/CRP.1, para. 6.
120 Ibid.
121 Nigel D. White, ‘Regulatory Initiatives at the International Level’ in Christine Bakker and Mirko Sossai (eds.), Multilevel Regulation of Military and Security Contractors: The Interplay between International, European and Domestic Norms (Oxford/Portland, Hart Publishing, 2012) 11.
122 The Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations off Private Military and Security Companies during Armed Conflicts.
123 See Corinna Seiberth, Private Military and Security Companies in International Law, (Intersentia, 2014) 161; Fred Schreier, ‘Obligations of Private Military and Security Companies under International Humanitarian Law’ in Benjamin Perrin (ed.), Modern Warfare: Armed Groups, Private Militaries, Humanitarian Organizations and the Law (UBC Press, 2012) 181, 193; Nigel D. White, ‘Regulatory Initiatives at the International Level’ in Christine Bakker and Mirko Sossai (eds.), Multilevel Regulation of Military and Security Contractors: The Interplay between International, European and Domestic Norms (Oxford/Portland, Hart Publishing, 2012) 11, 12.
124 Jose Luis Gomez del Prado, 'A. U.N. Convention to PMSCs?' (2012) 13: 3 Criminal Justice Ethics 262.
125 Art. 33 of the UN Draft Convention.
126 Art. 36 of the UN Draft Convention.
127 Art. 37 of the UN Draft Convention.
128 In particular the Montreux Document emphasised that ‘’[…] to provide for […] appropriate administrative and other monitoring mechanisms to ensure the proper execution of the contract and the accountability of contracted PMSCs and their personnel for their improper and unlawful conduct […]’’. See the Montreux Document, Part II, Good Practice No. 21.
129 See Corinna Seiberth, Private Military and Security Companies in International Law, (Intersentia, 2014) 256.
130 See presentation of Christopher Mayer, ‘’Implementation of the Montreux Commitments: Comparative Perspectives’’ for Webinar Recordings-Montreux: Fives Years On: Assessing the Current Status of the Development and Implementation of International Standards for the Private Security Industry (recorded on 29th of April 2013),
130 This Act is enacted by the Senate and the House of Representatives named as ‘’Ike Skelton National Defense Authorization Act for Fiscal Year 2011’’,
131 Section 833 of the Act has the title of Standards and Certification for Private Security Contractors.
132 U.S. Department of Defense, Procedures Guidance and Information § 225.7401
133 ASIS International, Management System for Quality of Private Security Company Operations-Requirements with Guidance, ANSI/ASIS PSC.1-2012 (Mar. 5, 2012), para. 9.5
134 See South Africa Department of International Relations and Cooperation, Strategic Plan 2010 – 2013, 21,
135 See presentation of Dr. Sabelo Gumedze, ‘’Implementation of the Montreux Commitments: Comparative Perspectives’’ for Webinar Recordings-Montreux: Fives Years On: Assessing the Current Status of the Development and Implementation of International Standards for the Private Security Industry (recorded on 29th of April 2013),
136 Ibid.
137 See Corinna Seiberth, Private Military and Security Companies in International Law, (Intersentia, 2014) 249.
138 See Ralf Evertz, ‘Germany’ in Christine Bakker and Mirko Sossai (eds.), Multilevel Regulation of Military and Security Contractors: The Interplay Between International, European and Domestic Norms (Oxford/Portland, Hart Publishing, 2012) 231.
139 Human Rights Council, Promotion and Protection of all human Rights, Civil, Political, Economic, Social and Cultural Rights including the Right to Development: Protect, Respect and Remedy: A Framework for Business and Human Rights (A/HRC/8/5, 7 April 2008)
140 Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises (A/HRC/11/13, 22 April 2009)
141 For a comprehensive analysis on the U.S.A. regulatory regime of PMSCs see Marina Caparini, ‘Domestic Regulation: Licensing Regimes for the Export of Military Goods and Services’ in Simon Chesterman, Chia Lehnardt (eds.), From Mercenaries to the Market: the Rise and Regulation of Private Military Companies, (New York: Oxford University Press, 2007) 158.
142 Human Rights Council, Implementing the United Nations ‘’Protect, Respect and Remedy’’ Framework, (United Nations: New York and Geneva, 2011) 25
144 For the text and commentary on OECD Guidelines on Multinational Enterprises see http://mneguidelines.oecd.org/text/ accessed on January 2015.