Abstract
In Angola, Executive Outcomes, a South Africa-based PMC, used fuel air explosives—a highly effective but particularly tortuous weapon;1 in Iraq the use of untrained PMC personnel in interrogation resulted in the widely publicized Abu Ghraib prison scandal. Even the “War on Terror” has not been spared. The tentacle of the PMC is manifest in the emerging practice of the United States government labeled “extraordinary rendition”—an insidious scheme involving the transfer of terrorism suspects to third countries that harbor no qualms about using all manner of processes and procedures to “extract information.”2 As in the case of the Abu Ghraib abuse, various international norms were violated, including the Convention against Torture (CAT) and the 1949 Geneva Conventions which prohibit governments from taking such actions. However, the ambiguous legal status of PMCs under existing international law offers leeway for countries to not only bend but also occasionally breach their international legal obligations, thus threatening the very fabric of the international legal order.3
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Notes
America has frequently used private contractors to transport terrorism suspects to countries known to practice torture. See S. M. Hersh, Chain of Command: The Road from 9/11 to Abu Ghraib (New York: HarperCollins Publishers, 2004), p. 53.
L. Dickinson, “Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability under International Law,” William & Maty Law Review, 47 (2005), 135, pp. 152–3.
See e.g. Mohed Omer Beshir, Mercenaries in Africa (Addis Ababa: OAU, 1972) 5.
M.-F. Major, “Mercenaries and International Law,” Georgia Journal ofInternational and Comparative Law, 22 (1992) 103, p. 126.
See Organization of African Declaration on the Activities of Mercenaries in Africa, reprinted in E. Robert, J. Cesner and J. H. Brant, “Law of the Mercenary: An International Dilemma,” Capital University Law Review, 6 (1990), 365, pp. 365–6.
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See F. Hampson, “Mercenaries: Diagnosis before Prescription,” Netherlands Yearbook of International Law, 3 (1991), 1 p. 7.
According to A. P. V. Rogers, Law on the Battlefield (Manchester: Manchester University Press, 1996) p. 8: “Taking a direct part in hostilities must be more narrowly construed than making a contribution to the war effort, and it would not include taking part in arms production or military engineering works or military transport.”
Foreign and Commonwealth Office of the United Kingdom, Green Paper: Private Military Companies Options for Regulation, House of Commons (2001–2002), (London 2001), para. 6.
See C. Pilloud, Y. Sandoz, B. Zimmerman, C. Swinarski and E. de Preux, Junod, “International Committee of the Red Cross: Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949,” Journal of Peace Research, 24 (1987), 326 p. 579.
See B. H. Brady, “Notice Provisions for US Citizen Contractor Employees Serving with the Armed Forces of the United States in the Field: Time to Reflect Their Assimilated Status in Government Contracts,” Military Law Review, 147 (1995), 1 p. 2.
G. Best, Humanity in Warfare (New York: Columbia University Press, 1980), p. 375.
A-F Musah and K. Fayemi (eds.), Mercenaries: An A frican Security Dilemma. (London: Pluto Press, 2000), quoted in P. W. Singer, “Corporate Warriors,” 86 p. 44.
M. Huber, Arbitral Award on British Claims in the Spanish Zone of Morocco (unpublished manuscript); M. Sassdli, “State responsibility for violations of international humanitarian law,” International Review of the Red Cross, 846 (2002), 401.
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J. Crawford, The International Law Commission’s Articles on State Responsibility — Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2003), art. 5, para. 1.
S. R. Ratner, “Corporations and Human Rights: A Theory of Legal Responsibility,” Yale Law Journal, 111 (2001), 443 pp. 477–88.
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The assertion is also made in K. Highet, “Evidence, the Court, and the Nicaragua Case,” American Journal of International Law, 81 (1987), 1, pp. 40–1.
M. Gibney, K. Tomasevski and J. Vensted-Hansen, “Transnational State Responsibility for Violations of Human Rights,” Harvard Human Rights Journal, 12 (1999), 267, p. 287.
Noam Chomsky discusses US involvement in Nicaragua with particular attention to its political motivations throughout his book: N. Chomsky, What Uncle Sam Really Wants (Tucson: Odonian Press, 1993), especially pp. 100–4 and 270–8.
D. Jinks, “State Responsibility for the Acts of Private Armed Groups,” Chicago Journal of International Law, 4 (2003), 83, p. 89.
XI Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council (1948), p. 1259. Quoted in: S. E. Hendin, “Command Responsibility and Superior Orders in the Twentieth Century—A Century of Evolution,” Murdoch University Electronic Journal of Law, 10 (2003), 1, p. 2.
W. H. Parks, “Command Responsibility for War Crimes,” Military Law Review, 62 (1973), 1 pp. 2–4.
Grotius wrote, for example: “The State or the Superior Powers are accountable for the Crimes of their Subjects, if they know of them, and do not prevent them, when they can and ought to do so.” H. Grotius, De Jure Belli ac Pacis (On the Law of War and Peace), 1625). Quoted in: L. C. Green, “Command Responsibility In International Humanitarian Law,” Transnational Law & Contemporary Problems, 5 (1995), 319 p. 321.
The Nuremberg Charter, for example, specified that acting in an official capacity for government did not relieve individuals of responsibility: Nuremberg Charter, art. 7; J. N. Maogoto, War Crimes and Realpolitik: International Justice From World War I to the 21st Century (Colorado: Lynne Rienner Publishers, 2004), p. 99.
I. Bantekas, “The Contemporary Law of Superior Responsibility,” American Journal of International Law, 93 (1999), 1.
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S. E. Hendin, “Command Responsibility and Superior Orders in the Twentieth Century-A Century of Evolution,” Murdoch University Electronic Journal of Law, 10 (2003), 1, p. 31.
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Antenor Hallo de Wolf, “Modern Condottieri in Iraq: Privatizing War from the Perspective of International and Human Rights Law,” Indiana Journal of Global Legal Studies 13 (2006), 315, 338.
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© 2009 Benedict Sheehy, Jackson Maogoto, and Virginia Newell
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Sheehy, B., Maogoto, J., Newell, V. (2009). Private Military Firms under International Law. In: Legal Control of the Private Military Corporation. Palgrave Macmillan, London. https://doi.org/10.1057/9780230583016_6
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