A Response to Carsten Hoppe: Minimising the regulatory gap – a flexible interpretation of Article 5 of the ILC Articles

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.  Nonetheless, certain functions appear to be commonly regarded as intrinsically public in nature, including policing and detention pursuant to a judicial sentence.  Instinctively, we might think that anything relating to a state’s military or security activities in armed conflict or occupation is inherently governmental.  Yet such instinctive classifications tend to rely primarily on the fact that the activities have historically been carried out by the state, and this becomes increasingly unsatisfactory as military and security functions are increasingly privatised.

The ILC Commentary to Article 5 attempts to provide additional guidance by identifying, in addition to the content of the power in question, three factors which may assist in determining whether a particular power involves the exercise of governmental authority: first, the way in which the powers are conferred on an entity; second, the purposes for which the powers are to be exercised; and third, the extent to which the entity is accountable to the government for the exercise of the powers.

The second factor is particularly helpful in assessing whether PMSC activities entail governmental authority.  This criterion endeavours to capture the notion that governmental authority involves some attempt to fulfil the sovereign objectives of the government, which undoubtedly include, in the words of the preamble to the US Constitution, to “provide for the common defense”.

The inclusion of “purpose” as a relevant factor brings to mind the long-standing debate in the law of state immunity about the appropriate way to identify state activities that are immune from the jurisdiction of another state.  In that context, international law distinguishes between the acts of a state in its sovereign capacity, which are immune from jurisdiction, and other acts performed in a private capacity, which are not immune.  One of the principal justifications for this distinction is that certain disputes involving the sovereign functions of states should be settled on the international plane, whereas other disputes involving the private functions of states are more appropriately decided in municipal courts.  Thus, like the classification of an activity as one involving governmental authority for the purpose of Article 5, the classification of an activity as one involving governmental authority for the purpose of state immunity signifies that it should be assessed on the international judicial plane under the law of state responsibility.  It is in the interests of logic and consistency that similar considerations should apply to both analyses.

Before one can classify a particular activity as governmental or non-governmental in nature, it is necessary to identify the activity with precision.  Any activity can be defined broadly, such as “hiring an armed security guard”, or narrowly, such as “hiring an armed security guard to defend a US military base/military convoy/State Department convoy in a low-intensity conflict zone”.  Whilst both are accurate descriptions, the latter clearly identifies additional information which is legally relevant.  In the state immunity context, the initial task of identification is often said to require one to “distinguish” between the nature and purpose of the activity, and to concentrate only on the former; for if one focuses upon purpose, virtually all state transactions can ultimately be traced back to the public interest.  Yet one cannot draw a clear-cut distinction between the nature and purpose of a particular act.  Commentators often point out, for example, that signing a legally binding contract can be described simply as signing paper unless one considers the purpose of the act.  It is clearly necessary to consider the whole context of the claim against the state.  In this regard, the purpose of the state’s act “is not decisive but it may throw some light upon the nature of what was done”. (I Congreso del Partido, [1983] 1 AC 244, 272)  For example, an examination of the overall context and purpose of the act in question led the UK House of Lords to uphold a state immunity claim in relation to an allegedly defamatory memorandum written by a civilian university professor who was teaching military personnel stationed on a US base overseas.  Lord Hope stated that “[t]he whole activity was designed as part of the process of maintaining forces and associated civilians on the base by U.S. personnel to serve the needs of the U.S. military authorities…On these facts the acts of the respondent seem to me to fall well within the area of sovereign activity.” (Holland v Lampen-Wolfe [2000] 1 WLR 1573, 1577)

One can apply similar considerations to the question of whether PMSCs providing military/security services to a state are exercising governmental authority within Article 5.  Certain PMSC activities which may not necessarily be governmental in nature when viewed in isolation—such as armed guarding services—may in fact entail governmental authority when one considers their overall context.  Relevant factors include the location of the PMSC activity (zone of armed conflict/occupation), the persons whom the activity is provided to benefit (national military/security forces or senior politicians/diplomats) and, as noted in the ILC Articles, the overall purpose of the act.  Applying this contextual approach, a large proportion of guarding and protection services provided in armed conflict or occupation in fact fall within Article 5.

This approach to Article 5 of the ILC Articles can help reduce reliance on Article 8 in establishing the hiring state’s responsibility for misconduct committed by PMSC personnel in the field.  This in turn reduces the pressure on positive obligations to bridge the overall accountability gap between states that hire PMSCs and states that act through their national armed forces.