Individual Liability of Private Military Personnel under International Criminal Law
| DOI | 10.1093/ejil/chn058 |
| Pages | 1015-1034 |
| Date | 01 November 2008 |
| Year | 2008 |
| Published By | Oxford University Press |
The European Journal of International Law Vol. 19 no. 5 © EJIL 2008; all rights reserved
..........................................................................................
EJIL (2008), Vol. 19 No. 5 , 1015 – 1034 doi: 10.1093/ejil/chn058
Individual Liability of Private
Military Personnel under
International Criminal Law
Chia Lehnardt *
Abstract
The article examines the present status of private military personnel under international
criminal law. Perpetrators of international crimes are frequently integrated into a hierarchi-
cally structured collective, such as an army or police force. The system of order and obedience
essential to the functioning of these entities, the existence of which underlies a number of
principles of international criminal law, cannot be simply presumed to exist within a private
military company (PMC) or between a PMC and the hiring state. As a consequence, the pri-
vate nature of the company may become an issue, particularly when one considers the capac-
ity of their personnel to commit war crimes or to incur superior or command responsibility.
The article also considers problems of implementation and jurisdiction and touches briefl y on
the question of corporate criminal responsibility of the PMC itself. It will be argued that, in
theory, international criminal law can be an effi cient part of the legal regime governing the
use and conduct of private military companies, although many of the legal issues discussed
remain to be tested.
Performing the same tasks as state militaries places private military company (PMC)
personnel at risk of violating norms of international law just like public armed forces.
It therefore comes as little surprise that private military personnel have been impli-
cated in incidents possibly violating the laws of war, ranging from participation in war
crimes and crimes against humanity,
1 through the abuse of prisoners,
2 to shooting
* Research Fellow, Chair for Public Law, Public International Law and European Law; DFG-Fellow, ‘ Mul-
tilevel Constitutionalism ’ Research Training Group, both at Humboldt University, Berlin. I thank Roger
O’Keefe for valuable comments on an earlier draft.
1 Bonner, ‘ War Crimes Panel Finds Croat Troops “ Cleansed ” the Serbs ’ , New York Times , 21 Mar. 1999.
2 Fay, ‘ AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade
68-95 ’ (2004).
1016 EJIL 19 (2008), 1015 – 1034
indiscriminately at civilians.
3 International humanitarian law (IHL) is, in an excep-
tion to the rule that international law addresses states only, also directed at individu-
als. By criminalizing the violation of a subset of primary rules found in international
humanitarian law,
4 international criminal law purports to deter the commission of
offences against persons protected by the laws of armed confl ict. In theory, it might
therefore form an important part in the governance regime regulating the use and
conduct of private military contractors.
Unlike state armed forces, however, private military personnel occupy a relatively
ambiguous legal status, which has resulted in an almost complete absence of legal
prosecution where there have been accusations of wrongdoing that arguably amounts
to international crime. Thus, while there is no empirical evidence that private military
personnel are more likely to engage in misconduct than their state counterparts, one
of the greatest concerns voiced in the discussion on PMCs is the apparent impunity
with which they conduct their business. The aftermath of the incidents at Abu Ghraib,
Iraq, in 2004 provides a stark example supporting the assumption that the use of PMC
personnel can result in an accountability gap – while the military offi cers found by a
military investigation to have participated in the abuse of detainees were subjected to
court martial and sentenced to prison, none of the employees of two PMCs implicated
in the abuses were charged with any crime.
5
In spite of the uncertainty surrounding the legal position of PMC employees, it is
possible that the different responses to violations of law are a problem of enforcement,
rather than a problem of applicable law. The purpose of this article is to map the present
status of individual responsibility of private military personnel under international
criminal law. The fi rst section discusses issues of substantive law which may become
relevant in the context of PMCs. The second section considers the various modes of
participation which can trigger the criminal accountability of private military person-
nel – direct responsibility, complicity, and superior responsibility – before turning to
questions of enforcement and jurisdiction. Lastly, the question of corporate criminal
accountability of the company itself is considered.
1 Private Military Personnel and War Crimes
Private military contractors have been accused of having committed or assisted in
various crimes against civilians and detainees. Apart from the abuse of prisoners at
Abu Ghraib, PMC employees hired as security guards have killed civilians in Iraq in
unprovoked shootings
6 and participated in attacks against civilians in Colombia.
7
3 Johnston and Broder, ‘ F.B.I. Says Guards Killed 14 Iraqis Without Cause ’ , New York Times , 7 Nov. 2007;
Finer, ‘ Security Contractors in Iraq under Scrutiny after Shootings ’ , Washington Post , 10 Sept. 2005.
4 See Bothe, ‘ War Crimes ’ , in A. Cassese, P. Gaeta, and J.R.W.D. Jones (eds), The Rome Statute of the Interna-
tional Criminal Court. A Commentary (2002), at 387, 388.
5 Spiegel, ‘ No Contractors Facing Abu Ghraib Abuse Charges ’ , Financial Times , 9 Aug. 2005.
6 See generally Human Rights First, ‘ Private Security Contractors at War. Ending the Culture of Impunity ’
(2008), at 6.
7 Miller, ‘ US Pair’s Role in Bombing Shown ’ , Los Angeles Times , 16 Mar. 2003.
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