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. The gap closes in international armed conflict with respect to interrogation contractors in POW camps, but the off-duty conduct of combat and guarding and protection contractors would still be checked only by the general duties to vet, train, instruct, and report, and possibly to prevent known ongoing violations. In occupation, the off-duty conduct of contractors providing coercive services may give rise to responsibility of the hiring state where it failed to exercise due diligence in supervising them. In non-international armed conflict, only the general duties to vet, train, instruct, and report could narrow the gap, exposing the state to a substantially lower responsibility risk as compared to the conduct of its national soldiers.
Next I introduce positive obligations under Human Rights Law [HRL]. Adducing positive obligations under HRL to equalize responsibility for contracted personnel exercising combat, guarding and protection, or interrogation services with responsibility for the states’ own soldiers is subject to a twofold limitation: first, limits on the extraterritorial application of the HRL instruments and, secondly, the due diligence nature of the obligations.
Extraterritorial applicability will have to be tested on a case-by-case basis. In the case where the responsibility gap arises, that is where the conduct of contractors is not attributable to the hiring state, the requisite control will have to be exercised by the national armed forces or other state agents, including contractors whose conduct is at the time attributable to the hiring state. Territorial control over the area in which the violation happened may exist by virtue of an occupation or other territorial control, for example during an invasion. Physical control on the other hand, putting individuals in the power of the hiring state, exists for example over individuals who are kidnapped or arrested in an impromptu fashion or detained more formally in a detention facility. All three instruments discussed (ICCPR, ECHR, ACHR) will apply where the hiring state is an occupying power, or where the violations occur in an area controlled by agents of the hiring state. However, where combat contractors are off duty, or guarding and protection contractors engage in conduct outside their instructed duties, and the area they operate in is not controlled by the hiring state, there will not be a basis for extraterritorial jurisdiction unless there is physical control over the victims. Where the victims at the time of the violation either are under the control of the hiring state or have been handed from hiring state control into contractor control, jurisdiction can also be established under all three systems. However, where the hiring state does not have control over the persons interrogated, the off-duty conduct of these contractors will not be within the reach of any of the three instruments I discussed. If applicable, the reach of the duty to prevent under the different instruments varies, as described in more detail in section 3 B of the piece.
Positive obligations of states with respect to the conduct not attributable to them that I discuss under the heading of the obligation to prevent human rights abuses constitute obligations of due diligence. Thus, even if extraterritorial jurisdiction can be established, the hiring state will not be held responsible if it can demonstrate that it exercised due diligence with respect to the contractors’ conduct. Positive obligations of hiring states with respect to conduct not attributable to them are of course important, and may in the specific situations where they are applicable contribute to ensuring that a hiring state will not effectively circumvent responsibility it would incur for soldiers by relying on contractors. Yet, bringing responsibility to bear will be much more difficult due to a multitude of factors, including the limited reach of positive IHL obligations in non-international armed conflict, the uncertainty inherent in the concept of due diligence, and the complex questions extraterritorial application poses in the HRL systems. Thus responsibility qua positive obligations is very far from the simple and effective responsibility rule that states envisaged for armed conflict when they first codified state responsibility for violations of IHL by state forces in 1907.
Thus, still finding the responsibility gap to open up in many cases, I suggest in the remainder of the article that certain contractors exercising coercive functions do not fall into the category of persons accompanying the armed forces. Rather, they can indeed be attributed to the hiring state as members of the armed forces. Where they are organized as a recognizable group and are expected to ‘shoot back’ beyond self-defence on a routine basis, the hiring state will be responsible under Article 3 of HC IV and Article 91 of AP I. Hence, the clearest case will be that of combat contractors, while certain convoy or personal protection contractors may qualify provided they operate as a recognizable independent group. The interrogation example seems most doubtful, especially where the situations resembles more the close integration of a small number of individuals into an operation run by the national armed forces. I furthermore demonstrate that neither the requirement that they be under a command responsible to a party, nor the often adduced criteria for obtaining POW status, ultimately exclude this classification.