A short presentation on the concept of PMSCs in IHL and ICL, with focus on possible individual and collective civil and criminal responsibility for violations of international law by them.

1. Criminal and Civil Liability under IHL.
PRIVATE MILITARY AND SECURITY
COMPANIES (PMSCS)

2. INTRODUCTION
• What are PMSCs?
• PMSCs under Int’l Humanitarian Law.
• The Montreux Document.
• Criminal liability under IHL.
• Civil liability of PMSCs.
• Recommendations/Suggestions
• Questions.
MUTUGI MUTEGI, 2014

3. WHAT ARE PMSCS?
• No precise definition under IHL yet.
• Montreux Document: “PMSCs are private business
entities that provide military and/or security services,
irrespective of how they describe themselves.”
• EXAMPLES:
• Executive Outcomes in the Angolan War;
• Blackwater (now Academi) in the Iraq War.
• G4S Government Solutions for the UN and NATO
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4. PMSCS UNDER IHL: LEGALITY
• Initially thought as mercenaries who are
illegal under IHL. Offered no protection
(Art. 47 of AP1) Outlawed under UN Int’l
Convention against Recruitment, Use,
Financing & Training of Mercenaries.
• But do they reach the standard set
under Art. 47?
MUTUGI MUTEGI, 2014

5. PMSCS UNDER IHL: STATUS
• Determined on a case-by-case basis.
(Combatant/civilian)
• Civilians: If not directly participating in
hostilities (Art. 51(3) AP1). Not to be
targeted and have protection under GC4
• Combatants: Will receive protection of
GC1,2 or 3. Has PoW status when captured,
liable for violations of IHL.
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6. THE MONTREUX DOCUMENT.
• Non-binding, sponsored by 17 States. (Now
at 49 States and 3 Int’l Organizations)
• Reaffirms legal principles applicable, that
States are obligated to abide by.
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7. CRIMINAL LIABILITY UNDER IHL
• States are responsible for acts of private
firms/individuals used by the armed forces to
accomplish tasks that are typically for the armed
forces e.g. PMSCs
• Attributability: ILC Articles on Responsibility of States
for Internationally Wrongful Acts.
• Art. 8 Acting under instruction, direction/control
of State
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8. CRIMINAL LIABILITY
• Grave breaches: willful killing, torture or
inhuman treatment, including biological
experiments, willfully causing great suffering
or serious injury to body or health (War
crimes)
• National jurisdiction: as recommended by
Montreux Document.
• Articles 6, 7, 8 of Rome Statute: may be
prosecuted.
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9. CIVIL LIABILITY UNDER INTERNATIONAL LAW
• The body corporate itself.
The Krupp Trial and I.G Farben case at the
Nuremberg Military Tribunals.
• Vicarious liability: responsible for the acts of one’s
employees.
 Al-Shimari v CACI International: 4 Iraqi civilians,
tortured while at Abu Ghraib.
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10. CIVIL LIABILITY CONTD.
• Reparations: “A belligerent party which violates the
provisions...shall, be liable to pay compensation, be
responsible for all acts committed by armed forces.” –
Art. 3 Hague Convention IV of 1907
Art. 34 of Articles on State Responsibility
• Restitution – Restore previous conditions.
• Compensation, for any financially assessable
damage
• Satisfaction: includes formal apology,
acknowledgement of breach, expression of regret.
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11. RECOMMENDATIONS
• Company responsibility:
• Stringent vetting of personnel
• Proper training, reevaluation of staff on IHL
• Internal disciplinary procedure.
• Standard operating procedure, within
confines of IHL.
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12. RECOMMENDATIONS.
• Contracting State:
• Must not contract for purposes explicitly assigned
to armed forces
• Incorporation of code of conduct (e.g. ICoC) into
procurement policy.
• Measures to suppress violations: judicial,
administrative or military regulations.
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13. RECOMMENDATIONS.
• Territorial State:
• Disseminate IHL
• Measures to suppress violations: judicial,
administrative or military regulations.
• Limited to areas where control is exercised
(if occupied territory).
MUTUGI MUTEGI, 2014

14. RECOMMENDATIONS
• Self-regulation?
There’s an ardent push for it, but given gravity of
armed conflict, this is not a mere corporate
situation.
• British Association of Private Security Companies
(BAPSC)
• International Stability Operations Association
(ISOA)
The International Code of Conduct for Private
Security Providers (ICoC) – acts supplementary to
Montreux Document.
MUTUGI MUTEGI, 2014

15. QUESTIONS.
MUTUGI MUTEGI, 2014