Martin Trybus is Professor of European Law and Policy and Director of the Institute of European Law at the Birmingham Law School of the University of Birmingham, UK. He is the author of European Defence Procurement Law and European Union Law and Defence Integration and co-edited European Security Law with Nigel White

Chesterman (see here) deals with an interesting aspect of federal US American public procurement law. While touching on certain foreign relations dimensions of the topic, the thought-provoking article discusses domestic rather than international law. However, since the federal intelligence budget of the United States is most probably the largest in the world and privatisation in this area is unlikely to be more advanced in any other country, large parts of his analysis are relevant and important for the rest of the world. Other countries toying with the idea of privatisation of their intelligence services can learn from Washington’s experience accumulated during the last eight years.

The primary objective of public procurement is for the government to acquire whatever goods, works, and services it needs to operate from the private sector. This primary objective is certainly a legitimate motivation for the privatisation of some intelligence services when government agencies are lacking the personnel, know-how, and equipment to provide them. Nevertheless, as most concisely explained by Steve Schooner in “Desiderata: Objectives for a System of Government Contract Law”, (2002) 11 Public Procurement Law Review 99-102, there are a number of other important objectives to be served by public procurement. In any national context the procurement of defence and intelligence supplies and services has to operate within a triangle of three objectives: (1) national security, (2) value for money, and (3) democracy and the rule of law. National security is the objective of the defence and intelligence efforts of any country. Procurement policy and law must ensure that this basic objective is not compromised. The notion of ‘value for money’ requires the procurement process to ensure that the government purchases goods and services under the economically most advantageous terms, most notably at the lowest possible prices without compromising quality and other economic considerations. There is a connection between national security and value for money since the earlier is affected when the security budget is depleted through inefficient procurement and necessary services cannot be provided as a result. Democracy and the rule of law form the basis of a country such as the United States. Not even the national security objective can be allowed to compromise these most basic principles on which any democracy is built. A balance needs to be struck between the three corners of this triangle.

The most striking point highlighted in Chesterman’s article is that the privatisation of intelligence services in the United Sates appears to compromise all three objectives. (more…)

Prof. Chesterman’s article does an excellent job in exposing and explaining the phenomenon of the privatization of intelligence in recent years, particularly in the United States. To someone who, like myself, has followed the PMSCs debate only on the margins, the information that 70% of the US intelligence budget is spent on private contractors came as somewhat of a shock.  Chesterman explains very well the accountability and oversight gaps caused by the outsourcing of both intelligence collection and intelligence analysis. Especially troubling, of course, are situations where individuals’ life and liberty are put at the disposal of private contractors, as for example during interrogations or renditions.

Chesterman also explains well the specific problems that the outsourcing of intelligence, as opposed to PMSCs generally, poses for accountability. These are its inherent secrecy, the (perverse) incentives caused by the insertion of a profit motive into intelligence activites, and the difficulty of establishing which intelligence functions qualify as ‘inherently governmental’, and thus not outsourcable. (Not to mention the sheer callousness of some people working in the field, who can come up with a slogan as frivolous as is ‘We Can’t Spy… If We Can’t Buy’, in a Powerpoint presentation no less, that is featured in the title of the article.)

The article of course focuses on the United States, which both wields an enormous intelligence apparatus and where the privatization of intelligence is most pervasive. A question that I would have liked answered is to what extent is the phenomenon of privatization of intelligence (still) confined to the United States, and explained by its own idiosyncrasies. Do we have, for example, have any comparable data on the United Kingdom?

This brings me to my only really substantive comment – at the time being at least, what does international law, as opposed to domestic US law for example, have to say on the privatization of intelligence? I understand that Chesterman did not want to rehearse arguments on, say, state responsibility and PMSCs – in that regard, Chesterman’s and Carsten Hoppe’s articles complement each other nicely. I would still have liked to see some discussion on what, if anything, international law has to contribute to managing the problems posed by the privatization of intelligence, particularly those of its aspects which do not necessarily apply to PMSCs generally.

Both Professor Cryer’s post, as well as Hannah Tonkin’s reply to my article (introduced here) raise very interesting issues. I am thankful for their contributions to this discussion and happy to offer my reactions to some of the points they raise. Before reacting to their specific arguments, I believe a note of clarification is in order. As I argue in my article under the heading “Back to the Basics: Responsibility for the Armed Forces”, I do not believe positive obligations are truly our best hope for  plugging the responsibility gap. Rather, I argue that while these obligations are important, establishing state responsibility under the rule contained in Art. 3 Hague IV and Article 91 AP I is the more effective way to go.

Tadic redivivus – Are we using the wrong test?

In my opinion Tadic is not the law with respect to attribution for the purposes of state responsibility, and I do not have much hope this will change any time soon, if we take state practice and opinio iuris, as well as the ICJ’s specific rejection of the test in Bosnia Genocide into account. Of course there is always room for considerations de lege ferenda. I agree, if it were the law, attribution of PMSC conduct to the hiring state would be easier, given that the Tadic bar is lower. In turn, this would reduce the gap in state responsibility of the hiring state for acts of PMSC personnel, as compared to the responsibility that such state would incur for acts of its national soldiers. (more…)

Editors note: Over the coming days we will be discussing (see here) Professor Simon Chesterman’s article: “We Can’t Spy . .  . If We Can’t Buy!: The Privatization of Intelligence and the Limits of Outsourcing Inherently Governmental Functions”  (2008) 19 EJIL 1055 (available here).

Simon Chesterman is Global Professor and Director of the New York University School of Law Singapore Programme and Associate Professor of Law at National University of Singapore, Faculty of Law. His publications include:  From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford University Press, 2007) (ed. with Chia Lehnardt), Shared Secrets: Intelligence and Collective Security (Lowy Institute for International Policy, 2006)

This piece builds on two discrete areas of research that I’ve been pursuing for a couple of years and are now beginning to intersect.

The first is the privatization of the military and security sector. Building on the project on Global Administrative Law at New York University School of Law, the work that I’ve done with colleagues like Chia Lehnardt has focused on regulation of private military and security companies (PMCs or PMSCs). One product of that research was the book, From Mercenaries to Market, and a key argument was that we need to take the emerging market for force seriously – rather than pursuing the abolitionist approach that had long dominated discussion of this issue within the United Nations.

The second area is the oversight and accountability of intelligence services. I now teach a course on “Intelligence Law” at the National University of Singapore under the auspices of the NYU School of Law Singapore Programme and have written about the difficulty of using law that must normally be public to regulate government activities that must often be kept secret.

The article partly documents the privatization of intelligence, but also suggests the beginnings of an answer to a question that has long dogged debates over PMCs: what can and what cannot be outsourced?

Though it still lags behind the privatization of military services, the privatization of intelligence expanded dramatically with the growth in intelligence activities after September 11. This has seen an enormous increase in the money spent on intelligence (dominated by large items such as spy satellites) but also in the proportion of personnel working on contract. At the CIA’s station in Islamabad, for example, contractors reportedly outnumber government employees three-to-one. (more…)

Editors note: Professor Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School, UK. He is the author of Prosecuting International Crimes: Selectivity and the International Criminal System (Cambridge, 2005) and co-author of An Introduction to International Criminal Law and Procedure (Cambridge, 2007). We are pleased to welcome him to EJIL:Talk!

I am very flattered to have been asked to comment on EJIL Talk. It is also very pleasant to be able to do so in relation to a piece that I genuinely like and, given the increasing privatised nature of many actions that were previously considered truly jure imperii, deals with a question of unquestionable importance.

I would primarily like to see what State responsibility can do here. I think Carsten Hoppe raises the right issues, the positive duties of States under human rights law and IHL are hugely important here, but I would like to play devil’s advocate and suggest some alternative views and other ways in which State responsibility might be invoked here. I raise the following not to criticise, but to suggest some additional lines of inquiry. They are, perhaps, somewhat speculative, but, the point of EJIL talk is to initiate debate, so in that spirit, let us enter the fray!

The first is on attributability insofar as it is covered by Article 8. There is, as we all know, a disjunction between the approach taken by the ICJ in Nicaragua and reaffirmed in Bosnian Genocide case, and that taken by the ICTY in Prosecutor v. Tadić as to the level of control that is required for liability to be incurred. The ICJ considers the test to be ‘effective control’, whilst the ICTY considered it to be ‘overall control’ Although the ICJ in Bosnian Genocide case said that maybe for international criminal law the test is different, the ICTY saw itself as applying the general rules on State responsibility. If the ICJ was wrong and the test for attributability in some contexts is ‘overall control’, then there must be some room for arguing that employing States have overall control over PMC’s. Not least, they would have the power to bring the contract to an end. This would ensure iability for the offence itself. I have to say that there is rather a lot to be said for the more functional approach taken by the ICTY (on control, and, for example, nationality) rather than the rather rigid approach that characterises the ICJ’s position on point. (more…)

Editors note: Hannah Tonkin is currently a Law Clerk to President Judge Kirsch in the Appeals Chamber of the International Criminal Court. She is also writing a DPhil at the University of Oxford on States’ International Obligations to Control Private Military and Security Companies.

Carsten Hoppe’s article highlights the regulatory “gap” arising from the application of the traditional rules of attribution to modern private military and security companies (PMSCs) hired by a state in armed conflict or occupation.  According to Hoppe, states that hire PMSC personnel “will always face less responsibility for acts of those persons than for acts of soldiers, and its responsibility will be harder to prove.”  Hoppe points to two main situations in which this accountability gap may arise:

1. Where the private contractor is “empowered by the law of that state to exercise elements of the governmental authority” within Article 5 of the International Law Commission’s Articles on State Responsibility (ILC Articles), but is not in fact “acting in that capacity in the particular instance” when he/she engages in the relevant conduct; and
2. Where the contractor does not fall within Article 5 and is not in fact acting under state orders, direction or control sufficient to satisfy Article 8 of the ILC Articles.

 Hoppe argues that the second category is particularly pertinent to guarding and protective services, since these activities do not conclusively fall within Article 5.  Certainly, in many cases it will be impossible to establish the requisite degree of state control over these PMSC activities to satisfy Article 8 of the ILC Articles, especially if one applies the stringent threshold of “effective control” established by the ICJ in Nicaragua and reaffirmed in the Genocide case.

Yet before placing all reliance on the hiring state’s positive obligations, we should first consider whether the majority of guarding and protective services might in fact fall within Article 5.

There are three requirements for the attribution of PMSC conduct to the hiring state pursuant to Article 5.  First, the PMSC operation must constitute an exercise of governmental authority.  Second, the PMSC must be “empowered by the law of the state” to exercise that authority.  Third, the contractor must in fact be acting in the exercise of governmental authority, rather than in a purely private capacity, in the particular instance when he/she engages in the conduct.

There is no international consensus as to the precise scope of’ “governmental authority”.  The very concept requires value judgments, which themselves rest on political assumptions about the proper sphere of state activity.  (more…)

Editors note: Carsten Hoppe is on the Project Management team of the Priv-War Project  and Executive Director of the European Society of International Law. He is currently writing a PhD, on the same topic as his article, at the European University Institute. He has a JD from the University of Michigan Law School and has previously clerked for Judge Bruno Simma at the International Court of Justice. His article “Passing the Buck: State Responsibility for Private Military Companies”, (2008 )19 EJIL 989 -1014 is available  here.

What makes the video below from the Iraq war more disturbing than the countless others we have seen?

First off, Elvis Presley. The scenes of bullets flying into civilian vehicles are cut to a trivializing soundtrack of “Mystery Train” by the King of Rock ’n Roll. But what may be even more disturbing is that the video does not show a single soldier. Rather, it is attributed to a UK Private Military Company under contract with the United States, an employee of which claims to have shot the video.  Granted, it will be very difficult to assess who is ultimately responsible for the shootings. But this problem is not the end, but rather the beginning of my inquiry. How can it be that private company employees get to drive around in a war zone with assault rifles and machine guns, clearing the road of suspected attackers in approaching vehicles? Is it true that states hiring these Private Military or Security firms [PMSCs / contractors] can outsource their international responsibility by way of a simple contract?

Of course, at present, states are free under international law to outsource functions in armed conflict, such as guarding and protection, interrogation, or even combat, which formerly were in the exclusive domain of soldiers. However, the article and my broader work on PMSCs for the Priv-War Project and my dissertation demonstrate that, while they may spend the money, they are not free to “pass the buck” with respect to responsibility. Thus the most important conclusion of my piece is that where contractors function as armed groups and are responsible to the party through their obligations under a contract, responsibility for all their acts, as first envisaged by states in 1907, will lie for the hiring state.

To get to this point, I first compare responsibility of a state for a classical soldier to all the options for attribution of private conduct. In this analysis, a responsibility gap becomes evident: unless a state outright incorporates the contracted personnel into its armed forces, or the contractors can be regarded as completely dependent on the state (a tough burden of proof to meet), the state will always face less responsibility for acts of those persons than for acts of soldiers, and its responsibility will be harder to prove.

In a further step, I show that positive obligations of the state under IHL narrow this gap to some degree. (more…)

In the Bosnian Genocide case, Bosnia alleged that the Federal Republic of Yugoslavia (FRY, Serbia) was responsible for, inter alia, committing genocide and failing to prevent genocide on Bosnian territory. This argument, of course, immediately raised the question whether the FRY had any obligations under the Genocide Convention regarding its actions outside its own territory.

To answer this question, it is first necessary to recall that the Court interpreted the Convention so as to contain three distinct sets of obligations of state parties:

(1) The obligation to criminalize the crime of genocide and its ancillary crimes in their domestic law, and to prosecute the perpetrators of these crimes;

(2) The (positive) obligation to prevent genocide;

(3) The (negative) obligation not to commit genocide through their own organs or agents.

This expansive interpretation of the Convention is not uncontroversial. It is entirely possible to read the Convention as solely requiring (1) criminalization, that the (2) obligation to prevent genocide is merely hortatory, and that (3) is found nowhere in the treaty (see, for example, this article by P. Gaeta in the EJIL). For what it’s worth, I am entirely in agreement with the Court. But when do states actually have these various obligations, and is there is a single territorial scope of application of the Convention?

According to the Court, the territorial scope of the Convention varies with the particular set of obligations in question.

(more…)

In keeping with Christmas spirit, here’s my next post on the Genocide Convention.

Can a state be responsible for genocide? What does that even mean? Aren’t international crimes, in the sage words of the Nuremberg Tribunal, committed by men, not by abstract entities? Can a state even possess genocidal intent, a basic requirement for the crime of genocide?

A full answer to this question requires revisiting many old debates, particularly those during the drafting of the Genocide Convention and on then Draft Article 19 on state crimes of the International Law Commission’s project on state responsibility, that was removed from the final ILC Articles.

If there is one thing is made clear from an examination of the Convention’s travaux, as well as state practice, that is that states have excluded any form of state criminal responsibility for the crime of genocide or any other international crime. That does not mean, however, that no state responsibility exists. In my EJIL article on state responsibility for genocide, I’ve argued that the attribution model developed by the ILC, coupled with the fundamental distinction between primary and secondary rules of state responsibility, provides a simple answer to the conundrum of state responsibility for international crimes. If an individual commits an international crime such as genocide, and if the acts of this individual are attributable to a state, pursuant to the generally applicable secondary rules of attribution (if, for example, the individual is a state organ), than the state is responsible for the crime committed by that individual as an internationally wrongful act.

This responsibility is again not criminal, but the regular state responsibility recognized in international law, that carries with it obligations of cessation and reparation. It rests on a primary obligation of states not to have individuals whose acts are attributable to them to commit international crimes. Genocide is thus at the same time both an international crime, for which individuals are criminally responsible, and an internationally wrongful act, for which states to which the acts are attributable bear their own responsibility. That does not mean there is a ‘tort’ of genocide or ‘civil’ genocide in international law – genocide still, at all times, remains an international crime, and its elements must be proven to the exacting standards demanded by the relevant body of primary rules. Thus, for example, though a state – an abstract entity – cannot have genocidal intent, such intent of the individuals whose acts are being attributed to the state must be conclusively established.

The next question is whether this type of responsibility, that in my view undoubtedly exists in customary international law, also exists within the (jurisdictional) confines of the Genocide Convention. The ICJ gave an answer to this question in the Bosnian Genocide case.

Both at the preliminary objections and at the merits stage of the case the FRY/Serbia disputed the existence of a separate obligation of a state under the Convention not to commit genocide, asserting that the Convention was a classical international criminal law treaty, dealing with crimes committed by individuals, not states. All the Convention does is to require states parties to criminalize in their domestic law the crimes that it defines, and then prosecute the perpetrators of these crimes. Though Article IX of the Convention confers jurisdiction upon the Court to resolve disputes between contracting states ‘relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III’, this was, in Serbia’s argument, merely a compromisory clause which did not create substantive rights and obligations.

The Court disagreed. It held that ‘Article I [of the Convention], in particular its undertaking to prevent, creates obligations distinct from those which appear in the subsequent Articles [of the Convention]’ so that the ‘the Contracting Parties have a direct obligation to prevent genocide.’ Moreover, according to the Court, even though

Article [I] does not expressis verbis require States to refrain from themselves committing genocide … [i]t would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law. In short, the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide.

(Genocide judgment, paras. 162, 165 & 166)

Though Serbia was on the facts not found responsible for the commission of genocide in Bosnia, the Court’s judgment affirmed the attribution model developed by the ILC and the distinction between primary and secondary rules. States can thus be brought before the ICJ under Article IX of the Convention not merely for failing to criminalize or prosecute genocide, but also for committing it through their organs or failing to prevent it.

In my next post I will deal with the territorial scope of state obligations under the Convention.

Earlier this week, the Trial Chamber at International Criminal Tribunal for the Former Yugoslavia (ICTY) hearing the case against Radovan Karadzic issued a decision in which it stated that “According to customary international law, there are some acts for which immunity from prosecution cannot be invoked before international tribunals [para. 17 of the decision]“. The statement was made in the context of a ruling granting, in part, a request by Karadzic for the disclosure of certain documents by the Prosecutor.  Karadzic alleged that, at a meeting in Belgrade in July 1996, he reached an “immunity agreement” with US diplomat Richard Holbrooke in which he was promised that he would not face prosecution at the Tribunal if he withdrew from public life. He sought any documents in the possession of the Prosecutor concerning the alleged agreement and the meeting at which it was reached. He argued that the Holbrooke offer was attributable to the Tribunal because it was made in consultation with other members of the UN Security Council or believed to be so. The Trial Chamber ruled that the documents sought were not relevant to the preparation of Karadzic’s defence other than being of potential relevance to in the determination of any eventual sentence. It considered “it well establihed  that any immunity agreement in respect of an accused indicted for genocide, war crimes and/or crimes against humanity before an international tribunal would be invalid under international law [para. 25].”

Although Karadzic and the Trial Chamber discussed the alleged agreement in terms of immunity, the suggestion being that it related somehow to immunities conferred by international law, it may have been more accurate to refer to it as an amnesty agreement. Afterall, the suggestion in the alleged agreement was not that Karadzic was entitled to immunities which international law ordinarily accords but rather that the tribunal would refrain from prosecuting him. 

The Trial Chamber’s view that international law immunities do not apply to prosecution for international crimes before international criminal tribunals is erroneous. (more…)