The end of the Cold War was followed by the growth and spread of process of privatization of security sector, and so legally establishment of Private Military Companies (PMCs) and Private Security Companies (PSCs). PMSCs were contracted not only by “democratic governments, International Organizations or humanitarian and environment organizations, but also dictatorships, militias, drug cartels, and at least two Al Qaeda linked jihadist groups.” The establishment of PMSCs have raised legal question concerning their status on international law, respect for International Humanitarian Law (IHL), matters of responsibility, attribution and status of PMSCs personnel in the battlefield.
Therefore, this new actor in international law, considered to be absolutely untouchable because of the loopholes in international legal system, gives the states enough legal loophole to undertake clandestine action through which they can diminish fundamental rules of international law and escape from their responsibility under international law.
Speaking of fundamental rules of international law, we can list three categories considered as jus cogens, specifically prohibition of the threat or use of force under UN Charter, fundamental human rights, and international humanitarian law, as confirmed in Article 50 of ILC Articles on State Responsibility.
Hence, the possibility for breach of peremptory norms of international law through contracted PMSCs, have to be distinct in two groups, imprimis is the possibility for the violation of Article 2(4) of UN Charter, where a state through clandestine operations recourses from the old method of using local irregular forces to use of PMSCs, and the second group is violations of human rights and international humanitarian law by misconduct of PMSCs personnel in their operating area.
Until now, there is no evidence that states have used PMSCs against territorial integrity and independence of another state, but the situation is not the same for the second group.
In 2007 in Baghdad, seven people were shot dead and several injured when Blackwater operatives started a firefight in Nisoor Square. US and Iraqi investigations subsequently confirmed that Blackwater guards fired without provocation on a slow-moving civilian car that failed to stop, killing its occupants, and they continued firing in response to the panic and confusion of civilians and Iraqi security forces in the square. One year later the US government indicted five Blackwater employees on manslaughter charges, but “prosecution under US law may be difficult, if not impossible, owing to gaps in the US regulatory framework,” and while US employees have immunity in Iraq due to Agreement between US and Iraqi government after US delegated authority to local government in 2004.
Also none of private contractors have so far faced prosecution despite their implication in the Abu Ghraib prisoner abuse scandal in Iraq. While PMSCs are contracted mostly by states, the assumption that their misconduct should be attributed to the state rises. However, application of “effective control“ by the ICJ instead of “overall control” test sets a high threshold to attribute acts of private actors to the state. Nevertheless, in order to find an answer for PMSCs misconduct committed in the field, first we should give an answer to the question if International Humanitarian Law establishes an obligation toward the state to establish effective control on PMSCs.
Common Article 1 of Geneva Conventions of 1949 points out that states are obliged “to respect and to ensure respect” for IHL. According to Common Article 1 states are obliged to respect terms of Convention itself and vis-a-vis to others. Later, article makes itself more ambiguous concerning in what circumstances it applies by adding that states should respect and “ensure respect” for IHL in “all circumstances.”
Therefore, Article 1 should not be limited only to ensure respect for IHL by agents of states, but it should be applied further as an obligation of the state to establish effective control over PMSCs they hire in conflict situations, so object and purpose of Common Article 1 will not be undermined.
Non-implementation of Common Article 1 as obligation of states with respect to PMSCs actions would result with breach of object and purpose of Article 1 as a fundamental rule of IHL that would make Common Article 1 and IHL not applicable and would affect utility of Common Article 1 as a guardian maxim on implementation of IHL.
Moreover, in 2005, General Assembly Resolution 60/46 confirms the obligation of states to ensure respect for IHL by taking appropriate legislative and administrative and other appropriate measures to prevent violations, investigating and where appropriate, to take action against those allegedly responsible in accordance with domestic and international law.
Also in Nicaragua Case, ICJ found that encouragement that USA gave to contras was contrary to the obligations under Common Article 1, but it did not evaluated the state’s failure to take positive action to ensure respect for IHL, and in Wall case, ICJ took the position that state should “ensure that the requirements of the Geneva Conventions are complied with.”
Nature of Common Article 1 leads us to the idea that it is not territorially limited, and is not limited only to ensure respect for IHL by armed forces under control of the state, and this applies to a state “wherever it may be acting or may be able to act in ways appropriate to meeting the obligations in question.” On the other hand, relationship between state and PMSCs, acting for the profit of the hiring state, even if the PMSC is not under the command of the state, while state exercises effective control over the territory where PMSCs operate, constitute a fact that strongly support obligation of the state to ensure respect for IHL under common Article 1 and so to establish effective control over contracted PMSCs.
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