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.
Taking the ICJ’s view that State responsibility is still that contained in Nicaragua, recent developments in State responsibility might have led to broader responsibility for States for failures to prevent actions than the ILC articles might suggest. Works like Tal Becker’s Terrorism and State Responsibility take the view that on some issues at least, State responsibility has moved on so (or always was) that a violation of a general duty of due diligence leads to some form of State responsibility for that failure. It would seem, to me, that if this is the case, then there is room for argument that there is State responsibility for failing to exercise due diligence to prevent even off-duty conduct by PMCs employed by a State. After all, he who pays the piper…Lest this be seen as excessively modern, Michael Akehurst, for example, argued back in the 1960s that there were general due diligence obligations on States in relation to rebels, and surely such duties would apply a foriori with respect to those directly paid by the State.
Still, we could push this further, taking into account that a State is responsible for aiding or assisting a violation of international law. Article 16 of the ILC Articles provides that
A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:
(a) That State does so with knowledge of the circumstances of the internationally wrongful act; and
(b) The act would be internationally wrongful if committed by that State.
This does not deal four square with the question of whether a State can be responsible for aiding or assisting a violation of international law by a non-state actor, as it is based on a State-State relationship, and it might generally be questioned whether we can transfer responsibility issues across any divide which exists. On the other hand, assisting rebels and the like has frequently been held to incur State responsibility, as it did, for example, in Nicaragua.
There is, in my view a strong argument that violations of international criminal law have parallel State and individual responsibility, as the norms apply equally to both (thus dealing with the requirement in Article 16(b) (which would probably apply by analogy)). The Bosnian Genocide case made clear that this was the case for genocide (although some question the conclusion) and it is undoubtedly the case for war crimes (Article IV of the Hague Regulations). I personally have no qualms about crimes against humanity having similarly parallel forms of responsibility, which developed to deal with State policies. The first question will be whether there has been assistance. This will depend on the facts, but allowing PMCs to use facilities, and paying them might do (allowing them to leave the country through airports they control might also do, but the question of whether or not assistance after the fact will do is unclear). The second question will be whether or not any assistance given occurs in a situation in which knowledge could be proved. Continuing to pay PMCs when they have repeatedly engaged in such conduct might lead to a finding of knowledge.
There are other issues, such as the fact that in occupied territories, the overall commander might if the High Command case is to be believed, have quite strong duties in relation to what occurs in that territory, which would certainly encompass that form of liability, and as a result State responsibility for the failings of the commander but that is an issue for another time.
As I said above, these are speculative thoughts rather than definite conclusions, but I hope they stimulate debate.