Multilevel Regulation of Military and Security Contractors: The Interplay between International, European and Domestic Norms 9781472565860, 9781849462488

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Foreword This book originates in a research project—Priv-War—on the role of human rights and international humanitarian law in the regulation of the emerging phenomenon of the ‘privatisation of war’ and, more particularly, on the role that the European Union may play in promoting compliance with international law by private military and security companies. In the past 10 years, and especially after the Iraqi war, this phenomenon has increased exponentially, transforming the nature of armed conflict from conflicts between armies of the peoples to conflicts involving private contractors whose participation is motivated by private gain. Unlike mercenaries of a bygone era, private military and security companies do not operate clandestinely, in the shadow of governments and on an ad hoc basis; they are permanently structured as legitimate business corporations; they represent a global industry; and they command enormous financial and technological resources, which are ever more indispensable in support of the defence and security objectives of many states. Hand in hand with the growth of this phenomenon, the past 10 years have also witnessed the growth of an abundant literature addressing the political, social and economic problems arising from the trend of military privatisation. From a legal point of view, several challenges are posed by the rise of this new type of actor on the international scene. First, the classical paradigm of international law as a legal order applicable exclusively in the relations between states appears inadequate to govern the transnational activities of private military and security companies. Secondly, if such companies are not themselves the addressees of rules of international law, can states that contract them or that incorporate or use them in their territory be considered duty bound to prevent and redress eventual abuses by such companies? Thirdly, given the increasing use of private contractors in security, humanitarian and peace building missions by international organisations, primarily the United Nations and the European Union, how do the rules of international responsibility for internationally wrongful acts apply to such organisations? And how do they relate to the possible responsibility of the states participating in such missions? Finally, when we outsource military force, how can we preserve the integrity of the fundamental principles of the law of armed conflict, ie that the use of force has its limits, that participants

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in hostilities may not target civilians and that they may not take actions that disproportionately kill civilians? These questions, and others, have been the object of the FP7 Priv-War research project that I have had the privilege of co-ordinating during the period between 2008 and 2011. The two editors of this volume—Christine Bakker and Mirko Sossai—have been two of the most committed and active participants in the project. They have contributed important papers that have been published in peer-reviewed journals; they have generated innovative ideas and coordinated the organisation of international workshops; and, more generally, they have supported the organisation and management that a research project of this complexity— with an international network of participants—inevitably requires. This book has grown out of their deep involvement in the Priv-War project. It provides an innovative perspective on the plurality and interaction between different legal orders in the regulation of military and security contractors. It examines the different levels of regulation—international, European Union and domestic—so as to offer a realistic scenario of applicable norms and principles as well as patterns of progressive development of the law in relation to a very dynamic evolution of the market for security and military force. At a time when the expansion of the phenomenon of private military and security companies risks bringing an unwelcome militaristic culture to the world of transnational economic relations, it brings great satisfaction for me to witness the completion of this collective work. Its publication represents a significant contribution to the definition of international standards and rules of accountability in a field that has revealed serious regulatory gaps. Francesco Francioni EUI, Florence

Acknowledgements This book is one of the final results of the PRIV-WAR Project, funded by the European Commission, DG Research & Innovation, under the Seventh Framework Programme (FP7). It has been a common effort of the PRIV-WAR team, which for three and a half years has effectively co-operated towards achieving its common objectives in terms of research and the formulation of policy recommendations for the EU. We are grateful to all those who participated in this project, and especially in the preparation of this volume. First of all, we would like to thank Professor Francesco Francioni (EUI, Florence) and Professor Natalino Ronzitti (LUISS University, Rome), who jointly conceived and then coordinated the PRIV-WAR project, for giving us the opportunity to edit this volume and for their guidance in this process. It has been an honour and great pleasure working with them and benefiting from their academic expertise and considerable experience. We also want to express our gratitude to the team-leaders of the other participating universities in the project, Professor Nigel White (University of Nottingham, previously University of Sheffield), Professor Ineta Ziemele (RGS, Riga), Professor Thilo Marauhn (JLU, Giessen), Professor Eric Myjer (Utrecht University), Professor Serge Sur and Professor Nicolas Haupais (University of Paris II), for their support in the preparation of this volume and the research on which it is based. At the same time, we thank our counterparts at these same universities, Dr Sorcha MacLeod, Ieva Miluna, Dr Faustin Ntoubandi, Dr Guido den Dekker, Jonathan Herbach, Professor Julian Fernandez and Dr Marina Mancini, for their constant and amicable teamwork throughout the project. Special appreciation goes to the authors who contributed to the book for their excellent work and timely co-operation. We also thank Giulia Lucchese for preparing the index. At the EUI, we are much obliged to Anny Bremner and Joyce Davies for their support and inspirational comments. Our recognition is also due to Tom Adams, Rachel Turner and Mel Hamill at Hart Publishing, for their excellent work in preparing the book for publication. Last, but certainly not least, we want to thank the European Commission, DG Research & Innovation, for providing the funding that rendered the PRIV-WAR project, including this book, possible, and especially Angela Liberatore at this same DG, for her continuous support to this common endeavour. vii

List of Contributors Joana Abrisketa holds a PhD in Public International Law from the University of Deusto. She is assistant professor in the Faculty of Law of this University and in the Joint European Master on Humanitarian Action of the Institute of Human Rights of the same University. She has been visiting professor in Columbia University (New York) and in York (Toronto). Major David Antonyshyn is a legal advisor to the Canadian Forces and has an LLM from the University of Ottawa. Andrea Atteritano is a research fellow in international law at LUISS University and Barrister in Rome at Hogan Lovells—Arbitration/ Dispute Resolution Department. He is the author of several publications on international and arbitration law, and a member of the editorial board of the Italian Arbitration Review. He assists multinational corporations in courts and on non-contentious issues. Christine Bakker holds a PhD from the European University Institute in Florence, where she is a Research Fellow and worked for the PRIV-WAR Project (2008–2011). She has previously worked at the European Commission for several years and has carried out legal research on children in armed conflict as a consultant for the UNICEF Innocenti Research Centre. Andreas Bergman is a lawyer at the National Board of Consumer Disputes Sweden. He is a major and deputy legal advisor in the Swedish Air Force. He holds an LLM from the University of Uppsala. Alexandra Bohm is a PhD candidate in international law at the University of Sheffield’s School of Law. Prior to this she worked as a dispute resolution solicitor at Norton Rose in London. Her publications include Research Methodologies in EU and International Law (with R Cryer, T Hervey and B Sokhi-Bulley), published with Hart in 2011. Irene Cabrera is a professor in the Faculty of Finance, Government and International Relations of the Externado University in Bogotá, Colombia. She is also a researcher in negotiation and conflict management at the Research Centre and Special Projects (CIPE), with graduate studies in geography (specialist) at the Universidad Nacional de Colombia.

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Vanessa Capdevielle has been working for the private security industry for the last 7 years. She is postgraduate in international relations from Pantheon-Assas University and also in strategic studies from Villetaneuse University. She has a deep interest in security issues, including the privatisation of security and the security situation in South East Asia. Hamza Cherief is a PhD candidate in public international law at the University of Burgundy, and is a member of the Centre de Recherche et d’Etude en Droit et Science Politique (CREDESPO). His research concerns international public law theory, relationships between violence and law, private security and military companies, mercenary activities, the law of self-determination and movements of secession. Since 2010, he has been an associated researcher to the SEMIPAR project, which aims to study the relationships between deliberative democracy and military secrets in nuclear deterrent related issues. Guido den Dekker is an attorney, specialising in Supreme Court litigation, with the law firm Barents Krans NV in The Hague. Earlier, he worked as a researcher and lecturer at Utrecht University in the Department of International Law, and as an attorney in Amsterdam. He obtained his PhD in law (The Law of Arms Control, 2001) from the University of Amsterdam. Ralf Evertz is a PhD candidate at Justus-Liebig-University Giessen in international arms control law. From June 2008 to May 2011 he worked as a research fellow for Prof Dr Thilo Marauhn (MPhil) and is currently employed at Simmons & Simmons LLP in Frankfurt. Marco Gestri is a professor of European Union law at the University of Modena and Reggio Emilia and an adjunct professor of international law at SAIS, Johns Hopkins University, Bologna Centre. Jan Grofe is a German lawyer holding degrees from the University of the Western Cape (RSA, Int Human Rights LLM) and the London School of Economics (UK, MSc Human Rights). He has worked for Amnesty International as a Business & Human Rights Advisor and has carried out research on PMSCs. Don Hubert is associate professor of International Affairs at the Graduate School of Public and International Affairs at the University of Ottawa. Kristine A Huskey (JD, University of Texas School of Law (UT Law); BA, magna cum laude, Columbia University) is the director of the Anti-Torture Program at Physicians for Human Rights and an adjunct professor on national security law and policy at Georgetown University Law Center. She was the founding director of and a professor in the National Security Clinic at UT Law, and is the author of the book, Justice at Guantánamo:

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One Woman’s Odyssey and Her Crusade for Human Rights, as well as other publications on national security and international human rights and humanitarian law. Rain Liivoja is a research fellow at the Asia Pacific Centre for Military Law, Melbourne Law School. Stefano Manacorda has a doctorate in law from the University of Florence and an LLM from Paris 1 Panthéon-Sorbonne. He is currently professor of criminal law at the University of Naples II and associate professor at Paris 1 Panthéon-Sorbonne. He directs the research unit ‘Internormativities in criminal law’ at the college de France. Triestino Mariniello holds a PhD from the University of Naples and an LLM from the Queen Mary—University of London. He has been a visiting researcher at the Grotius Centre for International Legal Studies, Leiden University. Currently he is an associate legal officer at the International Criminal Court. Tim McCormack is a professor of law at the Melbourne Law School and a member of the Asia Pacific Centre for Military Law. He is the Special Adviser on International Humanitarian Law to the Prosecutor of the International Criminal Court in The Hague. Giuseppe Melis is professor of tax law and tax litigation at University of Molise and at LUISS University, Rome. He is the author of several publications on international tax law, member of the Scientific Committee for ‘Diritto e pratica tributaria internazionale’ directed by Prof Victor Uckmar and Member of the Executive Committee of the Italian Branch of International Fiscal Association. Ieva Miluna is a PhD candidate at the University of Amsterdam and lecturer in international law at the Riga Graduate School of Law. Faustin Z Ntoubandi, Lic en Droit Public (Yaoundé, Cameroon), LLB/ LLM (Potchefstroom, South Africa), PhD magna cum laude (Giessen, Germany); is currently Assistant Professor in International Law and Researcher at the Franz von Liszt Institute of International Law, JustusLiebig University of Giessen, Germany. He is author of the book Amnesty for Crimes against Humanity under International Law (Brill, 2007) and has published a number of articles on various topics of international law. Petra Ochmannova is a PhD candidate in public international law at the Faculty of Law, Charles University (Prague, Czech Republic). At Charles University she is also lecturer in international humanitarian law. She works as a legal advisor in international law at Ministry of Defence, Czech Republic. Furthermore, she is a member of the International Society for Military Law and the Law of War.

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Alessio Persiani holds a PhD in company tax law from LUISS—Guido Carli University, where he is a lecturer in tax law. He is author of several publications on international and EC tax law. He practises as an attorneyat-law in Rome at McDermott, Will & Emery. Antoine Perret is a PhD candidate at the European University Institute in Florence. He has a Licence in International Relations of the Graduate Institute of International and Development Studies in Geneva and a Master in International Affairs of the Externado de Colombia University in collaboration with Columbia University and Sciences Po Paris. Ottavio Quirico holds an LLM in international relations and a PhD in law from the University of Social Sciences of Toulouse (France). He has been a visiting fellow at the Lauterpacht Centre for International Law in Cambridge (UK), a Max Weber Fellow at the European University Institute and a lecturer in law at University Lille Nord de France. He delivered courses on international law and European law at University Panthéon-Assas (Paris 2) and at Washington State University. Since September 2010 he is a Marie Curie Fellow at University Paris 2, in collaboration with the European University Institute and the Max Planck Institute for Comparative Public Law and International Law. Axelle Reiter holds a PhD in law from the European University Institute and a LLM in human rights law from the University of Nottingham. She is a qualified lawyer at the Barreau de Bruxelles. Yaël Ronen (PhD, Cantab) is senior lecturer of public international law at Sha’arei Mishpat College, Israel. Her work focuses on issues of territorial status, international humanitarian law, human rights and international criminal law, and the intersections between these areas of law. Her main publications include Transition from Illegal Regimes under International Law (Cambridge University Press, 2011), The Iran Nuclear Issue (Hart, 2010) and The Law and Practice of the International Court, 1920–2005 (assisting Shabtai Rosenne) (Brill, 2006). Kerry Senior is currently a PhD candidate in international law at the University of Nottingham. She gained her LLB and LLM in international and European law at the University of Sheffield, and she is researching the relationship between those legal orders. Mirko Sossai is lecturer in international law at the University ‘Roma Tre’, Italy. Previously, he was research fellow at the LUISS Guido Carli University in Rome. He holds a PhD in international law from the University of Siena (2005) and a degree cum laude from the University of Padua (2001). He was member of the Management Team of the PRIV-WAR Project (2008–11).

List of Contributors xvii Scott Sullivan is an assistant professor of law at the Louisiana State University Law Center and an associate of the Robert Strauss Center for International Security and Law at the University of Texas. Adam White is a lecturer in public policy at the University of York, UK. He is a graduate of the University of Leeds (BA, MA) and the University of Sheffield (MA, PhD). His research focuses upon the governance of security, public policy and the changing nature of the state. These interests are multi-disciplinary, lying at the intersection of politics, international relations, criminology and socio-legal studies. His recent publications include The Politics of Private Security: Regulation, Reform and Re-Legitimation (Palgrave Macmillan, 2010) and Decentering State Authority (ed) (University of Washington Press, 2012). Nigel White is Professor of Public International Law at the University of Nottingham. He is author of several books including Keeping the Peace: The United Nations and the Maintenance of International Peace and Security, 2nd edn (Manchester University Press, 1997), The Law of International Organisations, 2nd edn (Manchester University Press, 2005), The UN System: Toward International Justice (Lynne Rienner, 2002) and Democracy Goes to War: British Military Deployments under International Law (Oxford University Press, 2009). Signe Zaharova is the Head of the International Law Section at the Ministry of Defence of the Republic of Latvia. She is responsible for providing legal assistance to units of the Latvian National Armed Forces serving abroad. Her main areas of legal assistance include practical implementation of the law of armed conflict. Since 2004 she has also been working in the academic field as a lecturer in various courses of national law, and has been a guest lecturer of the international humanitarian law course at the Riga Graduate School of Law.

Table of Cases I NTERN ATION AL

International Court of Justice The Corfu Channel Case (Merits), [1949] ICJ Rep 4 .......................................................... 27, 27 n 84

Inter-American Court of Human Rights Cantoral Benavides v Peru, Ser C No 69, 18 August 2000, ................................................ 576 n 103 Castillo Petruzzi and others v Peru, Ser C No 52, 30 May 1999 ....................................................561 Durand and Ugarte v Peru, Ser C No 68, 16 August 2000............................................................561 Velasquez Rodriguez, Ser C No 4, 29 July 1988 ................................................................. 27, 28 n 87

European Court of Human Rights A.D. v Turkey, No 29986/96, 22 December 2005......................................................... 570, 570 n 67 Bas v Turkey, No 34493/97, 29 January 2002 ....................................................................... 569 n 59 Basboga v Turkey, No 64277/01, 13 June 2006 ..................................................................... 579 n 19 Cable et al v United Kingdom, No 24436/94, 24582/94, 24583/94, 24584/94, 24895/94, 25937/94, 25939/94, 25940/94, 25941/94, 26271/95, 26525/95, 27341/95, 27342/95, 27346/95, 27357/95, 27389/95, 27409/95, 27760/95, 27762/95, 27772/95, 28009/95, 28790/95, 30236/96, 30239/96, 30276/96, 30277/96, 30460/96, 30461/96, 30462/96, 31399/96, 31400/96, 31434/96, 31899/96, 32024/96 and 32944/96, 18 February 1999 ................................................ 574 n 85 Canevi et al v Turkey, No 40395/98, 10 November 2004 .................................................... 579 n 19 Castillo Algar v Spain, No 28194/95, 28 October 1998 ............................................... 573, 573 n 82 Çiraklar v Turkey, No 70/1997/854/1061, 28 October 1998 .............................................. 579 n 19 Cooper v United Kingdom, No 48843/99, 16 December 2003 .................................... 574 n 89, n 90 Coyne v United Kingdom, No 25942/94, 24 September 2004 ............................................. 574 n 85 De Jong, Baljet and Van den Brink v The Netherlands, No. 8805/79; 8806/79; 9242/81, 22 May 1984............................................................................................................... 570, 570 n 66 Delcourt v Belgium, No 2689/65, 17 January 1979 .............................................................. 571 n 60 Eccles, McPhillips & McShane v Ireland, No 12839/87, 23 December 1988 ............. 573 n 78, n 79 Engel et al v The Netherlands, No 5100/71; 5101/71; 5102/71; 5354/72; 5370/72, 8 June 1976.................................................. 567 n 47, 568–570, 568 n 54–57, 570 n 65, 573 n 77 Ergin v Turkey, No 47533/99, 4 March 2006 ........... 561 n 15, 575–577, 575 n 96–n 99, 576 n 101, 577 n 105, n 107 Findlay v the United Kingdom, No. 22107/93, 25 February 1997 .............. 572 n 72, 573, 573 n 81, n 83–n 86, 574, 574 n 86, 578 Gerger v Turkey, No 24919/94, 8 July 1999 .......................................................................... 579 n 19 Grieves v United Kingdom, No 57067/00, 16 December 2003 .................................... 574, 574 n 91 Hauschildt v Denmark, No 10486/83, 24 May 1989............................................................. 573 n 80 Incal v Turkey, No 22678/93, 9 June 1998 ..........................578 n 117, n 118, 579, 579 n 120, n 121

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Letellier v France, No 12369/86, 26 June 1991...................................................................... 571 n 69 Martin v United Kingdom, No 40426/98, 24 October 2006 ..................... 542, 542 n 80, 578 n 111, n 113–n 116 Maszni v Romania, No 59892/00, 21 December 2006 ..................576 n 102, 577, 577 n 109, n 110 Morris v United Kingdom, No 38784/97, 26 May 2002 ............. 572 n 76, 574 n 88, 575 n 92–n 94 Neumeister v Austria, No 1936/63, 27 June 1968................................................................. 570 n 63 Öcalan v Turkey, No 46221/99, 12 May 2005 ..........................563 n 28, 579, 580, 579 n 122, n 123 Okcuoglu v Turkey, No 24246/94, 8 July 1999.....................................................................579 n 119 Önen v Turkey, No 32860/96, 10 February 2004 ............................................................... 577 n 106 Ringeisen v Austria, No 2614/65, 16 July 1971 .................................................................... 572 n 73 Sahiner v Turkey, No. 29279/95, 25 December 2001 .................................................. 572 n 74, n 75 Schiesser v Switzerland, No 7710/76, 4 December 1979 ..................................................... 571 n 69 Sener v Turkey, No 26680/95, 18 July 2000 .........................................................................579 n 119 Sevgin and Ince v Turkey, No 46262/99, 20 September 2005 .............................................579 n 119 Sürek v Turkey, No 24762/94, 8 July 1999 ...........................................................................579 n 119 Sürek v Turkey, No 26682/95, 8 July 1999 ...........................................................................579 n 119 Yaka v Turkey, No 36201/97, 29 January 2002 ..................................................................... 569 n 59 Yuksel v Turkey, No 35078/97, 29 January 2002 .................................................................. 569 n 59

European Court of Justice Commission v Belgium, C-355/98, [2000] ECR I-1221 ...............................39 n 22, 60 n 21, 610 n 8 Commission v Council (ECOWAS case), C-91/05, [2008] ECR I-3651 ......... 32–37, 33 n 4, 45 n 34 Commission v Germany, C-404/05, [2007] ECR I-10239 ........................................................ 61 n 25 Commission v Italy, C-283/99, [2001] ECR I-4363 .....................................39 n 22, 60 n 21, 610 n 8 Commission v Italy, C-465/05, [2007] ECR I-11091 ...........................40 n 22, 60 n 21, 610 n 8, 613 Commission v Portugal, C-171/02, [2004] ECR I-5645 ................. 39 n 22, 53 n 1, 60 n 21, 610 n 8 Commission v Netherlands, C-189/03, [2004] ECR I-9289 ....................................... 39 n 22, 610 n 8 Commission v Spain, C-114/97, [1998] ECR I-6717.......................... 39 n 22, 60 n 21, n 22, 610 n 8 Commission v Spain, C-414/97, [1999] ECR I-5585 ............................................................... 46 n 38 Commission v Spain, C-514/03, [2006] ECR I-963 ........ 39 n 22, 42 n 23, 60 n 21, 65 n 39, 610 n 8 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property—Article 228 (6) of the EC Treaty, Opinion 1/94, [1994] ECR I-5267 ............................................................................................... 59, 59 n 20 EP v Commission, C-403/05, [2007] ECR I-9045 ...................................................................... 32 n 3 Fiocchi Munizioni v Commission, T-26/01, [2003] ECR II-3951 ............................................ 46 n 39 Germany v Parliament and Council (Tobacco Advertising), C-376/98, [2000] ECR I-8418 ...................................................................................................................... 65 n 42, 66 n 44 International Agreement on Natural Rubber, Opinion 1/78, [1979] ECR 2871 ...................... 54 n 6 Intertanko, C-308/06, [2008] ECR I-4057 .................................................................................. 80 n 3 Ireland v Parliament and Council (‘Retention of Data’), C-301/06, [2009] ECR I-593 ......... 64 n 38, 66 n 46 Lechouritou et al v Dimosiotis Omospondiakis Dimokratias tis Germanias, C-292/05, [2007] ECR I-01519 ................................................................................................... 248, 248 n 19 Leifer, C-83/94, [1995] ECR I-3231............................................................................................ 55 n 7 Marinari v Lloyds Bank plc and Zubaidi Trading Co, C-364/93, [1995] ECR I-02719 ........ 250 n 23 Racke v Hauptzollamt Mainz, C-162/96, [1998] ECR I-3655 ................................................... 80 n 3 Sonntag v Waidmann, C-172/91, [1993] ECR I-1963 ................................................... 248, 248 n 20 Thijssen, C-42/92, [1993] ECR I-04047 ................................................................................... 61 n 24 Vodafone, C-58/08, [2010] ECR I-4999 ...................................................................... 66, 66 n 43, 613 Werner, C-70/94, [1995] ECR I-189........................................................................................... 55 n 7 Zuid-Chemie v Philippo’s Mineralenfabriek, C-189/08, [2009] ECR I-06917 ....................... 250 n 23

Table of Cases xxi N ATION AL

Australia Ralli Bros v Cia Naviera Sota Y Aznar, [1920] 2 KB 287 ............................................... 525, 525 n 70 R v International Trustee for the Protection of Bondholders AG [1937] AC 500, 519 (Lord Wright) ............................................................................................................................... 525 n 70 Sandline International v Papua New Guinea [1998] 117 ILR 552.......................................... 525 n 71

Belgium Cour d’arbitrage, No 126/98, 3 December 1998, Moniteur Belge, 25 December 1998, pp 41191–96 ............................................................................................................... 159, 159 n 21

Canada Abukar Arone Rage and Dahabo Omar Samow by their Litigation Guardian Abdullah Godah Barre v The Attorney General of Canada (unreported, 6 July 1999, Ontario Superior Court of Justice) ............................................................................................. 406 n 161 Amchem Products Inc v British Columbia Worker’s Compensation Board [1993] 1 SCR 897, 931, 102 DLR (4th) 96, 119 ....................................................................................... 395 n 94 Amnesty International Canada v Canada (Attorney General), [2008] ............. 401 n 122, 407 n 169 In the Matter of Francis Martin [1864] OJ No 320 ................................................................ 386 n 29 Imperial Live Assurance v Colmenares [1967]................................................................ 395 n 92, n 93 Morguard Investments v De Savoye [1990] 3 SCR 1077 ........................................................ 393 n 79 Muscutt v Courcelles [2002] 60 OR (3d) 320 (Ont CA) ........................................................ 393 n 84 Recherches Internationales Québec v Cambior 164 [1998] QJ No 2554 (Que SC) (QL) (14 August 1998), Montreal 500-06-000034-971 JEL/1998-0728 ...................... 395, 395 n 95, n 97 R v Canadian Dredge & Dock Co [1985] 1 SCR 662 (SCC) ................................................... 389 n 53 R v Douglas [1991] 1 SCR 301, 316 (SCC)............................................................................. 390 n 61 R v Greyeyes [1997] 2 SCR 825, 837 (SCC)............................................................................ 390 n 57 R v Salajko [1970] 1 OR 824, 826 (Ont CA) .......................................................................... 390 n 58 Spar Aerospace Ltd v American Mobile Satellite [2002] 4 SCR 205 ....................................... 393 n 83 The Estate of Nasrat Ali Hassan v Her Majesty the Queen in Right of Canada (Minister of National Defence), John Doe and Jane Doe, Ontario Court of Justice, Court File No 06-CV- 318619PD1 ............................................................................ 407, 408, 407 n 170 Tolofson v Jensen 146 [1994] 3 SCR 1022, 1049, 77 OAC 81, 108 ................ 393 n 78, 394, 394 n 91 Transamerica Life Insurance Company of Canada v Canada Life Assurance Company [1995] 27 O.R. (3d) 291, (1995), 46 C.P.C. (3d) 110 ........................................................ 394 n 88 United States v Dynar [1997] 2 SCR 462, 500 (SCC) ............................................................ 390 n 62

France Bob Denard Case, Paris Court of Appeal, 6 July 2007 ..........................................209–211, 210 n 70 Decision No 86-207 DC, Conseil Constitutionnel, 25–26 June 1986,................................. 186 n 1 Decision No 86-217 DC, Conseil Constitutionnel, 18 September 1986 ............................. 186 n 1 Decision No 88-232 DC, Conseil Constitutionnel, 4 March 1988 ...................................... 186 n 1 Decision No 96-375 DC, Conseil Constitutionnel, 9 April 1996 ........................................ 186 n 1 Decision No 2003-473 DC, Conseil Constitutionnel, 26 June 2003.................................. 212 n 74

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Coulibaly Case, 16th Criminal Court Chamber of Paris, Judgment of 4 June 2008 ................209, 209 n 27

Israel Adalah v Government of Israel, HCJ 8276/05, Supreme Court of Israel, Judgment of 12 December 2006............................................................................................................. 453 n 95 Bani Uda v State of Israel CA [Civil Appeal] 5964/92, Supreme Court of Israel sitting as a court of appeal, Judgment of 20 March 2002 ........................................................ 452 n 90 Jabra v Minister of the Interior and Others, HCJ 2783/03, Supreme Court of Israel, Judgment of 3 December 2003...................................................................................... 455 n 109 State of Israel v Barak Cohen, Crim App 10987/07, Supreme Court of Israel, Judgment of 2 March 2003, 29–30........................................................................................ 455 n 106, n 110 The Public Committee against Torture in Israel and LAW v The Government of Israel and Others, HCJ 769/02 Supreme Court of Israel Judgment of 14 December 2006 ......... 432 n 2

Italy Supreme Court, Criminal Division, 25 July 1996, No 311 ................................................ 246 n 15 Supreme Court, Criminal Division No VI, 1 July 2003, No 36776 ............................ 238, 238 n 5 Supreme Court, Criminal Division No I, 10 November 2006, No 1072 ..................................242

The Netherlands Association of lawyers for peace and others v State of The Netherlands, Supreme Court, 6 February 2004 (NJ 2004/329) ....................................................................................... 266 n 69 Eric O, Arnhem Court of Appeal, Judgment of 4 May 2005, LJN: AT4988 .................... 267 n 72 Frans Van Anraat, Supreme Court 30 June 2009, LJN: BG 4822 ....................................... 261 n 41 Heshamuddin Hesam and Habibulla Jabelzoy, The Hague Court of Appeal, Judgments of 29 January 2007 (LJN: AZ7143 and AZ 7147) .......................................................... 261 n 38 Heshamuddin Hesam and Habibulla Jabelzoy, Supreme Court, Judgments of 8 July 2008 (LJN: BC7418 and BC7421) .................................................................................... 261 n 38 Kouwenhoven, The Hague Court of Appeal, Judgment of 10 March 2008, LJN: BC6068 ............................................................................................................................... 262 n 46 Rotterdam District Court, Judgment of 17 June 2010, LJN: BM 8116 ............................. 269 n 82

Spain Judgment of the Supreme Court, 29 October 1994, 8330/1994 and 12 April 1995, 3379/1995 .......................................................................................................................... 287 n 52

South Africa Compass Motor Industries (Pty) Ltd v Callguard (Pty) Ltd, [1990] 2 SA 520 (W) ............... 501 n 50 Fawcett Security Operations (Pvt) Ltd v Omar Enterprises (Pvt) Ltd, [1992] 4 SA 425 (ZS) ..................................................................................................................................... 501 n 48 Hirsch Appliance Specialists v Shield Security Natal (Pty) Ltd, [1992] 3 SA 643(D) ........... 501 n 48

Table of Cases xxiii Kaunda v President of the Republic of South Africa, Case No CCT 23/04, [2005] (4) SA 235 (CC) ............................................................................................................................. 497 n 33 Kaunda and Others v President of the Republic of South Africa and Others, Case No 12967/2004, [2004] (5) SA 191 (T) ................................................................................... 497 n 33 Rouget v S, Case No A 2850/03, [2006] JOL 15962 (T) ....................................... 495, 496, 496 n 29 State v Steyl and Another Regional Court, Case No 14/0339/2004, Pretoria .................... 497 n 35 State v Mark Thatcher High Court of South Africa, Cape Provincial Division, 5 December 2005 (Unreported) ...................................................................................... 497 n 35

The United Kingdom R (Al-Skeini) v Secretary of State for Defence, [2007] UKHL 26 ........................... 312, 313, 312 n 15 R (Al-Jedda) v Secretary of State for Defence, [2007] UKHL 58..................................... 313, 313 n 17 R v Corporal Donald Payne [2007], unreported .................................................................... 314 n 21

United States of America Al Shimari v CACI Premier Technology Inc 657 FSupp2d 700 (ED Va 2009) ....... 365 n 185, n 186, 364, 367, 367 n 197, 369 n 203, 370 n 209, 373 n 225, 376, 376 n 245, n 246 Al-Quraishi v Nakhla 728 FSupp2d 702 741–60 (D Md 2010) ................. 364, 365, 365 n 189, 367, 367 n 197, 369 n 203, 370 n 209, 373, 373 n 223, n 225 Aktepe v United States 105 F3d 1400 1403 (11th Cir 1997) ................................................ 369 n 202 Arias v Dyncorp 517 FSupp2d 221 227 (DDC 2007) .......................................................... 364 n 183 Baker v Carr 369 US 186 210 (1962) ........................................................... 369 n 200, 370, 370 n 207 Baily v McDonnell Douglas Corp 989 F2d 794 801 (5th Cir 1993) .................................... 372 n 219 Bentzlin v Hughes Aircraft Co 833 FSupp 1486 (CD Cal 1993) ................. 373, 374, 374 n 229–230 Bigio v Coca-Cola, Co 239 F3d 440 448 (2d Cir 2000) ......................................................... 364 n 182 Bixby v KBR Inc No CV 09-632-PK 2010 WL 4296637 (D Or Oct 22 2010) ................... 368 n 198, 369 n 203, 370 n 209, 373 n 223, n 225 Bootay v KBR Inc No 2:09-cv-1241 2010 WL 3632720 (WD Pa Sept 9 2010) .................. 368 n 198 Boyle v United Technologies Corp 487 US 500 (1988) ......................................... 372–375 , 372 n 215 Carmichael v Kellog Brown & Root Services Inc 564 FSupp2d 1363 (ND Ga 2008) ........ 368 n 198, 369 n 203, 370 n 208, 373 n 225 Feres v United States 340 US 135 146 (1950) ............................................................... 375, 375 n 233 Filartiga v Pena-Irala 630 F2d 876 890 (2d Cir 1980) ......................................................... 363 n 177 Fisher v Halliburton et al 390 FSupp2d 610 (SD Tex 2005) ..................... 368 n 199, 373 n 225, 377, 377 n 249–251 Getz v Boeing Co No CV 07-6396 2008 WL 2705099 (ND Cal July 8 2008) ...... 368 n 198, 369 n 203 Gilligan v Morgan 413 US 1 10 (1973) ................................................................................. 369 n 202 Harris v Kellog Brown & Root No 08-563 2009 WL 1248060 (WD Penn April 30 2009) ............................................................................................................... 368 n 198, 373 n 225 Hudgens v Bell Helicopters/Textron 328 F3d 1329 1334 (11th Cir 2003) .......... 372, 373, 372 n 220 Ibrahim v Titan Co 391 FSupp2d 10 13–14 (DDC 2005) (Ibrahim I) ........ 364, 365, 365 n 185–186, 369 n 203, 370 n 208, 373 n 225 Ibrahim v Titan Corp 556 FSupp2d 1 (DDC 2007) (Ibrahim II) aff’d Saleh v Titan 580 F3d 1 14–16 (DC Cir 2009) (Saleh II) ........................................................... 365 n 186, 373 n 225 In re di Bartolo 50 FSupp 929 930 (SDNY 1943) ................................................................. 360 n 166 In re Blackwater Security Consulting LLC 460 F3d 576 (4th Cir 2006) cert denied 549 US 1260 (2007) ................................................................................................................. 368 n 199 In re Joint E&S Dist NY Asbestos Litig 897 F2d 626 (2d Cir 1990) ................................... 372 n 219 In re KBR Burn Pit Litigation 736 FSupp2d 954 (D Md 2010) ............368 n 198, n 199, 369 n 203, 373 n 223, n 225, 376, 376 n 245 In re XE Services Alien Tort Litigation 665 FSupp2d 569 588 (ED Va 2009) ... 364, 364 n 183, 366, 366 n 191, n 192, 367 n 197, 369 n 203, 370, 370 n 209, n 210, 376, 376 n 245

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Jimenez v United States 158 F3d 1228 1229 (11th Cir 1998) .............................................. 375 n 234 Kadic v Karadzic 70 F3d 232 239 (2d Cir 1995) ................................................................... 364 n 183 Kiobel v Royal Dutch Petroleum Co 621 F3d 111 145 (2d Cir 2010) ................................... 364 n 183 Koohi v US 976 F2d 1328 (9th Cir 1992) ..................................................... 373, 374, 374 n 226–228 Lane v Halliburton 2006 WL 27 96249 (SD Tex 2006) consolidated as Lane v Halliburton et al 529 F3d 548 (5th Cir 2008) ................... 368 n 199, 369 n 203, 370 n 208, n 209, 373 n 225 Lessin v Kellog Brown & Root No CIVA H-05-01853 2006 WL3940556 (SD Tex Jun 12 2006) .......................................................................... 368 n 198, 369 n 203, 370 n 209, 373 n 255 Mangold v Analytic Services 77 F3d 1442 (4th Cir 1996) ............................................. 376, 376 n 42 Manook v Research Triangle Institute International et al (Manook I) 693 F Supp2d 4 19 (DDC 2010) .................................................................364, 366, 367, 366 n 193, 367 n 196, n 197 Manook v Research Triangle Institute International et al (Manook II) 2010 WL 3199874 *4–5 (EDNC Aug 12 2010) ........................................................366 n 193, 367, 367 n 196, n 197 Marbury v Madison 5 US 137 170 (1803) ............................................................................ 369 n 200 Martin v Halliburto 618 F3d 476 (5th Cir 2010) ...........................368 n 199, 373 n 223, n 225, 376, 376 n 245, n 247 McMahon v Presidential Airways Inc 410 FSupp2d 1189 (MD Fla 2006) (McMahon I)..................................................................... 368 n 198, 373 n 222, n 225, 375 n 238 McMahon v Presidential Airways 502 F3d 1331 (11th Cir 2007) (McMahon II) ......................................369 n 203, n 205, 370 n 209, 373 n 225, 375 n 235, n 236 Mora v New York, 524 F3d 183 208 (2d Cir 2008) .............................................................. 364 n 182 Nordan v Blackwater Security Consulting LLC et al 382 FSupp2d 801 (EDNC 2005) .... 368 n 199, 377, 377 n 250 Occidental of Umn al Qaywaayn, Inc v A Certain Cargo of Petroleum 577 F2d 1196 1203 (5th Cir 1978) ................................................................................................................... 369 n 202 Potts v Dyncorp International LLC 465 FSupp2d 1245 (MD Ala 2006) .......... 369 n 203, 370 n 209 Reid v Covert 354 US 1 39–41 [1957] ................................................... 359, 359 n 160, 542, 542 n 83 Romero v Drummond Co Inc 552 F3d 1303 1315 (11th Cir 2008) ...................................... 364 n 183 Sosa v Alvarez- Machain 542 US 692 749 (2004) .............363–365, 363 n 178, 364 n 183, 365 n 186 Saleh v Titan Co 436 FSupp2d 55 57–58 (DDC 2006) (Saleh I) ....364, 365 n 185, n 186, 370 n 208 Smith v Halliburton Co et al No H-06-0462 2006 WL 2521326 (SD Tex Aug 30 2006) ............................................................ 368 n 198, 369 n 203, 370 n 208, 373 n 225 Solorio v United States 483 US 435 450–51 [1987] .............................................. 359, 359 n 161, 543 Taylor v Kellog Brown & Root Services Inc No 2:09cv341 2010 WL 1707530 (ED Va April 19 2010) appeal docketed No 10-1543 (4th Cir 2010) ................... 368 n 198, 369 n 203, 370 n 208, 373 n 225, 374 n 231 Tel-Oren v Libyan Arab Republic 726 F2d 774 (DC Cir 1984) ............................................ 364 n 183 Toth v Quarles 350 US 11 22 [1955] ...................................................................................... 360 n 163 United States v Barney 21 CMR 98 110 [1956] .................................................................... 360 n 165 United States v Green, No 5:06CR-19-R 2008 WL 4000873 (WD KY Aug 26 2008) ....... 358 n 153 United States v Maldonado 215 Fed Appx 938 2007 WL 276624 (11th Cir Jan 31 2007) 357 n 151 United States v Munoz-Flores 495 US 385 394 (1990) ......................................................... 369 n 204 United States v Passaro 577 F3d 207 214 (4th Cir 2009)..................................... 355, 355 n 139, 531 United States of America v Slough et al 677 FSupp2d 112 (DDC 2009) (No 1:08:cr-360) 2009 WL 192243 ...........................................................357 n 147, n 148, n 150 Vietnam Ass’n for Victims of Agent Orange v Dow Chem Co 517 F3d 104 117–23 (2d Cir 2008) .................................................................................................................... 364 n 182 Westfall v Erwin 484 US 292 295 (1988) ...................................................................... 376, 376 n 240 Wiwa v Royal Dutch Petroleum Co, 2002 WL 319887 (SDNY Feb 28 2002) ..................... 367 n 195 Whitaker v Kellog Brown & Root Inc 444 FSupp2d 1277 (MD Ga 2006) ......................... 368 n 198, 369 n 203, 370 n 208, 373 n 225

Table of International Instruments and Domestic Legislation Treaties Hague Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, 29 July 1899 .....................................................................................................................................286 Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, 18 October 1907 ..............................................................................................................................475 Inter-American Treaty of Reciprocal Assistance, 2 September 1947 ........................................422 Geneva Conventions I, II, III, IV, 12 August 1949 ................. 49, 83, 108, 177, 194, 194 n 27, 261, 358, 377 n 252, 454, 476, 523, 539, 540, 551 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950 .................3, 80, 101, 313, 521, 561, 563, 567, 575 n 95, 611, 618 Agreement between the Parties to the North Atlantic Treaty Regarding the Status of their Forces, 19 June 1951 ....................................................................................547, 578, 599 Vienna Convention on Diplomatic Relations, 18 April 1961 ....................................................353 General Agreement for Economic, Technical and Related Assistance between the Government of the Republic of Colombia and the Government of the United States, 23 July 1962 ....................................................................................................................422 International Covenant on Civil and Political Rights, 16 December 1966 ................ 22, 84 n 23, 576 n 103 International Covenant on Economic, Social and Cultural Rights, 16 December 1966 ..........22 Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968 ..........................................516 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 27 September 1968 .............................................. 248, 248 n 19, 249 Convention of Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 26 November 1968 .....................................................................180 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 10 April 1972. ..................................................................................................................................516 Protocol I Additional to the Geneva Conventions of 12 August 1949, 8 June 1977 ........49, 119, 119 n 94, 177, 194, 202, 204, 207, 286, 377 n 252, 444, 445 n 55, 454 n 103, 553 Protocol II Additional to the Geneva Conventions of 12 August 1949, 8 June 1977 .......49,177, 194, 286, 454 n 103 Convention for the Elimination of Mercenarism in Africa, 3 July 1977 ..........................119 n 94 Convention between Czechoslovakia and Afghanistan on Legal Assistance in Civil and Criminal Matters, 24 June 1981 .......................................................................................181 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, 4 December 1989 ..................119 n 94, 149, 155, 155 n 1, 156, 156 n 2, 164, 178, 194 n 27,202, 227, 237 n 4, 260, 304, 304 n 52, 377 n 252, 383, 430, 475, 552 Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction, 13 January 1993 ................................516 Convention on the Safety of United Nations Personnel and Associated Personnel, 9 December 1994........................................................................................................................286

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Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, 28 September 1995 ..........................................................................................................................448 General Framework Agreement for Peace in Bosnia and Herzegovina, 21 November 1995............................................................................................................... 401 n 123 Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other Part, 24 June 1994 ...............................................................99 International Convention for the Suppression of Terrorist Bombings, 15 December 1997 ..... 504 Rome Statute of the International Criminal Court, 17 July 1998 .................... 177, 177 n 66, 179, 454 n 103, 477, 477 n 73, 503, 504, 551, 551 n 145 Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States of the One Part, and the European Community and its Member States, of the Other Part, 23 June 2000 (Cotonou Agreement)..................... 93–97, 94 n 69, 103 Treaty establishing the European Community (the consolidated Nice version) ....................33, 33 n 5, n 6, 36, 36 n 13, 40, 41, 45–47, 54, 58, 64, 101, 614, 618 Military Technical Agreement Between the International Security Assistance Force (ISAF) and the Interim Administration of Afghanistan (‘Interim Administration’), 4 January 2002 ............................................... 353, 353 n 130, 401 n 124, 533 Status of Forces Agreement (United States-Democratic Republic of East Timor), 1 October 2002 ..............................................................................................................................600 Status of Forces Agreement (United States-Marshall Islands), 30 April 2003 ................600, 601 Agreement Regarding the Status of United States Military and Civilian Personnel of the US Department of Defence Present in Afghanistan in Connection with Cooperative Efforts in Response to Terrorism, Humanitarian and Civic Assistance, Military Training and Exercises, and other Activities (United States-Afghanistan), 28 May 2003 ................................................................................ 352 n 124 Agreement between Colombia and United States regarding the surrender of persons of the United States of America to the International Criminal Court, 17 September 2003 ..........................................................................................................................423 Technical Arrangements Between the Government of Canada and the Government of the Islamic Republic of Afghanistan, 18 December 2005 ..................................... 401 n 122 Convention on the Rights of Persons with Disabilities, 13 December 2006 ...........................101 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 ........... 33 n 6 Charter of Fundamental Rights of the European Union, 13 December 2007 ..............3, 80, 607, 609, 611, 618 Treaty on European Union (TEU) ................33–38, 35 n 11, n 12, 36 n 14, 37 n 16, 50, 52, 54–56, 56 n 11, 72–74, 72 n 61, 73 n 63, 76, 77 n 60, n 61, 80 n 5–81 n 9, 85, 87, 101, 102, 607, 611, 612, 614, 617 Treaty on the Functioning of the European Union (TFEU) ......................... 33–39, 33 n 5, 34 n 7, 35 n 12–37 n 14,38 n 18, 46–48, 58, 60–67, 61 n 26, 69–75, 91 n 60, 101 n 91, 102, 612–614, 618 Agreement between the United States of America and the Republic of Iraq on the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq, 17 November 2008 ....318, 351, 532, 600 Agreement between the European Union and the Somali Republic on the status of the European Union-led naval force in the Somali Republic in the framework of the EU military Operation Atalanta, 31 December 2008 .......................................... 87 n 42 Agreement between the European Union and the Republic of Uganda on the Status of the European Union-led Mission in Uganda, 12 August 2010 .................... 88 n 42

United Nations General Assembly Res 217 (III), Universal Declaration of Human Rights, 10 December 1948.................................................................................84 n 23, 194 n 27, 274 n 9 General Assembly Res 2465 (XXIII), 20 December 1968 ................................................... 202 n 48 General Assembly Res 3314 (XXIX), 14 December 1974 ................................................... 202 n 49

Table of Legislation xxvii Human Rights Committee, CCPR General Comment No 13, Article 14 (Administration of Justice), Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law, 13 April 1984 ...................... 560 n 9 UN Office of the High Commissioner for Human Rights, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, A/ Conf 144/28/Rev 1, 112 (1990) ................................................................................................................................400 Human Rights Committee, Comments on Egypt, CCPR/C/79/Add.23 (1993), 9 August 1993.................................................................................................................... 560 n 10 Report of the Special Rapporteur on the question of the use of mercenaries, E/CN 4/1997/24, 20 February 1997...................................................................................................191 Report of the Special Rapporteur on the question of the use of mercenaries, E/CN 4/1999/11, 13 January 1999 .....................................................................................................310 Committee on Economic, Social and Cultural Rights, General Comment No 14: The Right to the Highest Attainable Standard of Health, E/C.12/2000/4 (2000) .... 28 n 88 UN Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with regard to Human Rights, E/CN 4/Sub.2/2003/12/ Rev.2, 26 August 2003 ...........................................................................................................11 n 4 Security Council Res 1511, 16 October 2003 ........................................................................318, 351 Security Council Res 1546, 8 June 2004 ................................................................................313, 318 Commission on Human Rights, Res 2005/2, 7 April 2005 ..........................................................17 Issue of the administration of justice through military tribunals – Report submitted by the Special Rapporteur, Emmanuel Decaux, E/CN 4/Sub.2/2005/9, 16 June 2005 .576 Human Rights Committee, General Comment No 32, Article 14: Right to equality before courts and tribunals and to a fair trial, CCPR/C/GC/32 (2007), 23 August 2007 ...............................................................................................................................560 Security Council Res 1790, 18 December 2007 ............................................................................318 Human Rights Council, Res 7/21, 28 March 2008................................................................17, 119 Report of the Working Group on the use of mercenaries, A/HRC/10/14, 21 January 2009 ........................................................................................................................ 17 n 40 Draft of a possible Convention on Private Military and Security Companies (PMSCs) for consideration and action by the Human Rights Council, in Report of the Working Group on the use of mercenaries, A/HRC/15/25, 2 July 2010 .. 4, 11, 16–30, 17 n 38, 26 n 81, 28 n 90, 82 n 17, 86, 86 n 31, 117 n 80, 157, 260 Human Rights Council, Res 15/26, 7 October 2010 ............................................18, 157, 290, 608

Organization for Economic Cooperation and Development OECD Model Tax Convention on Income and on Capital ................................585–586, 589–592 OECD Model Agreement on Exchange of Information on Tax Matters .........................602–605 OECD Council Recommendation No C(81)39, 5 May 1981 ......................................................603 OECD Council Recommendation No C(92)50, 23 July 1992 .....................................................603 OECD Council Recommendation No C(97)29/FINAL, 13 March 1997..................................603 OECD Council Recommendation No C(97)30/FINAL, 10 July 1997 ......................................603 OECD Council, Decision on the Guidelines for Multinational Enterprises (2000) ...........11 n 4 OECD, Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (2001) .....................................................................................................597–598 OECD Council Recommendation No C(2001)28/FINAL, 22 March 2001..............................603 OECD Report on the Attribution of Profits to Permanent Establishments (2008) .................591

European Union Directive 91/477/EEC on control of the acquisition and possession of weapons, 18 June 1991............................................................................................................................ 221 n 32

xxviii Table of Legislation Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data, 24 October 1995 ......................................................... 66 n 47 Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, 22 December 2000..................................................................................................... 248, 248 n 18 Directive 2004/18/EC of the European Parliament and of the Council on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, 31 March 2004 ................. 45, 46, 45 n 35, 48, 48 n 44, n 45, 257 n 21 Council Regulation (EC) No 1236/2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, 27 June 2005 ................................................. 58, 58 n 18 Directive 2006/123/EC of the European Parliament and of the Council on services in the Internal Market, 12 December 2006 ........................................................ 39 n 20, 61, 610 Regulation (EC) No 864/2007 of the European Parliament and of the Council on the law applicable to non-contractual obligations (Rome II), 11 July 2007............. 250 n 24, n 28–n 30 Directive 2008/51/EC of the European Parliament and of the Council amending Council Directive 91/477/EEC on control of the acquisition and possession of weapons, 21 May 2008 ....................................................................................................... 44 n 32 Regulation (EC) No 593/2008 of the European Parliament and of the Council on the law applicable to contractual obligations (Rome I), 17 June 2008 ............. 250 n 24–n 27 Council Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, brokering, and transit of dual-use items (recast), 5 May 2009...................................................................................42, 42 n 24, 54, 54 n 4, 82 n 24, 55, 281 Directive 2009/43/EC of the European Parliament and of the Council simplifying terms and conditions of transfers of defence-related products within the Community, 6 May 2009 ............................................................. 47, 47 n 43, 172, 298, 298 n 23 Directive 2009/81/EC of the European Parliament and of the Council on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/ EC, 13 July 2009 ......................................................................................................... 48 n 44–n 46 Joint Action 2000/401/CFSP concerning the control of technical assistance related to certain military end-uses, 22 June 2000 ............................................36 n 13, 43 n 26, 54 n 5 Joint Action 2002/589/CFSP on the European Union’s contribution to combating the destabilising accumulation and spread of small arms and light weapons and repealing Joint Action 1999/34/CFSP, 12 July 2002 .............................................. 45 n 34 Common Position 2003/468/CFSP on the control of arms brokering, 23 June 2003.............................................................................................36 n 10, 43 n 25, 44 n 32, 73, 614 Joint Action 2005/190/CFSPon the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX, 7 March 2005 ................................................................ 87 n 40 Joint Action 2008/230/CFSP on support for EU activities in order to promote the control of arms exports and the principles and criteria of the EU Code of Conduct on Arms Exports among third countries, 17 March 2008..................... 44 n 31, 614 Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment, 8 December 2008 ...................... 43, 43 n 28, 44 n 30, 49 n 51, 56, 56 n 10, 57 n 17, 69, 73, 74, 76, 82 n 16, 84 n 23, 173, 255, 614 Decision 2009/1012/CFSP on support for EU activities in order to promote the control of arms exports and the principles and criteria of Common Position 2008/944/CFSP among third Countries, 22 December 2009 ................... 44 n 30, 57 n 17, 74 Council Framework Decision 2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings, 30 November 2009........................................................................................................................... 548 n 131, 548 Council Recommendation regarding cooperation between the competent national authorities of Member States responsible for the private security sector, 13 June 2002....................................................................................................................................... 64 n 37

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Generic Standards of Behaviour for ESDP Operations, Doc. 8373/3/05 REV 3, 18 May 2005........................................................................................................................ 87, 87 n 37 User’s Guide to the EU Code of Conduct on Arms Exports, Doc. 7486/08, 29 February 2008 ..................................................................................................................... 44 n 32 The User’s Guide to Council Common Position 2008/944/CFSP Defining Common Rules Governing the Control of Exports of Military Technology and Equipment, Doc. 9241/09, 29 April 2009 .......................................................... 56 n 10, 84 n 23 Updated European Union Guidelines on promoting compliance with international humanitarian law (IHL), 2009/C 303/06, 15 December 2009 ..................................... 49 n 49 European Parliament resolution of 11 May 2011 on the development of the common security and defence policy following the entry into force of the Lisbon Treaty (2010/2299(INI)) ......................................................................................................... 3 n 6, 53 n 2

Others Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict, 17 September 2008 .................12 n 6, 83 n 21, 109 n 21, 166 n 1, 261 n 35, 306 n 58 International Code of Conduct for Private Security Providers, 2010 ...13–16, 18, 20, 24, 29, 30, 44, 67 n 48, 83, 83 n 22, 98, 109 n 22, 157, 195, 324, 325, 325 n 58, 378, 379, 378 n 254, n 258, 507, 526, 608

DOME STIC LEGISLATION

Afghanistan Ministry of Interior, Procedure for Regulating Activities of Private Security Companies in Afghanistan, February 2008 .................. 110 n 27, 115 n 58, 116 n 66, 118 n 87

Australia Criminal Code Act 1995 (Cth) ...................................................................... 514 n 26, 517 n 38, 519 Customs Act 1901 ..................................................................................516, 516 n 32, n 33, 517 n 35 Customs (Prohibited Exports) Regulation 1958......................................................... 516, 517 n 34 Crimes (Biological Weapons) Act 1976 ........................................................................................516 Crimes (Foreign Incursions and Recruitment) Act 1978 ................ 513, 514, 514 n 22–n 26, 515, 515 n 27, 521 Defence Force Discipline Act 1982 ............................................................... 518, 519, 518 n 39, 534 Nuclear Non-Proliferation (Safeguards) Act 1987......................................................................516 Chemical Weapons (Prohibition) Act 1994 ..................................................................................516 Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 ....................................516 Crimes (Overseas) Amendment Act 2003............................................... 519 n 41, n 42–n 47, n 49 Crimes (Overseas) (Declared Foreign Countries) Regulations 2003 .............................. 520 n 48 Anti-terrorism Act 2004 (Cth) ............................................................................................... 514 n 25 Australian Government, Commonwealth Procurement Guidelines, December 2008..................................................................................................................................... 513 n 19 New South Wales: Firearms Act, 1996..................................................................................116 n 68 New South Wales: Security Industry Act, 1997 ................................. 114 n 55, 116 n 68, 511 n 16 Tasmania: Firearms Act, 1996 ................................................................................................116 n 68 Tasmania: Security and Investigation Agents Act, 2002 ...................................................511 n 17

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Victoria: Private Security Regulations, SR No 77/2005 .....................................................110 n 25

Belgium Constitution .....................................................................................................................................562 Criminal Code ........................................................................................................... 156, 156 n 3, n 4 Code of Criminal Procedure ................................................................................................... 156 n 5 Law on the Fabrication, Trade and Carrying of Weapons and on the Ammunitions Trade, 3 January 1933.............................................................................................. 158 n 12, n 13 Law Prohibiting Private Militias, 29 July 1934..........................108 n 15, 157 n 10, n 11, 158 n 18 Law on Safe-keeping Companies, Security Companies and Internal Safe-keeping Services, 10 April 1990 ......................................................................................157 n 11, 158–164 Law Modifying the 1933 Law on the Fabrication, Trade and Carrying of Weapons and on the Ammunitions Trade, 30 January 1991 ....................................................... 158 n 12 Law Modifying the 1990 Law on Private Security Services, the 1991 Law Organising the Profession of Private Detective and the 1933 Law on the Fabrication, Trade and Carrying of Weapons and on the Ammunitions Trade, 18 July 1997................ 158 n 13 Law Modifying the Code of Criminal Procedure, Various Police Laws and the 1990 Law on Private Security Services, 19 April 1999, ........................................................ 158 n 14 Law Modifying the 1990 Law on Private Security Services, 9 June 1999....................... 158 n 15 Law Modifying the 1990 Law on Private Security Services, 10 June 2001..................... 158 n 16 Law Enacting the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, done in New York on the 4th of December 1989, 29 January 2002 ...................................................................................... 155 n 1 Law Striving to Fight Discrimination and Modifying the 1993 Law Creating a Centre for the Equality of Chances and the Struggle against Racism, 25 February 2003 ................................................................................................................... 162 n 33 Royal Decree Regulating Certain Safe-Keeping Methods, 7 April 2003 ........................ 162 n 32 Law Modifying Belgian Law to Comply with the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, adopted in New York on the 4th of December 1989, 22 April 2003 .......................................................... 156 n 2 Law Modifying the 1990 Law on Private Security Services, the 1934 Law Prohibiting Private Militias and the 1991 Law Organising the Profession of Private Detective, 7 May 2004 ........................................................................ 157 n 11, 158 n 18 Law Inserting Article 17 bis in the 1990 Law on Private Security Services, 25 April 2004..................................................................................................................................... 158 n 17 Law Simplifying the 1990 Law on Private Security Services, 2 September 2005 .......... 158 n 19 Law Regulating Economic and Individual Activities with Weapons, 8 June 2006 ...... 158 n 12 Royal Decree on the Weapons Used by the Companies, Services, Organisms and Persons to Which Applies the 1990 Law on Private Security Services, 17 November 2006............................................................................................................ 160 n 24 Law Modifying the 2006 Law Regulating Economic and Individual Activities with Weapons, 9 January 2007................................................................................................. 158 n 12 Royal Decree Modifying the 2003 Royal Decree Regulating Certain Safe-Keeping Methods, 26 July 2007 ...................................................................................................... 162 n 32 Law Modifying the 2006 Law Regulating Economic and Individual Activities with Weapons in order to Prolong the Delay for the Declaration of the Detention of Weapons, 23 November 2007 ......................................................................................... 158 n 12 Law Modifying the 2006 Law Regulating Economic and Individual Activities with Weapons, 25 July 2008 ..................................................................................................... 158 n 12

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Brazil Law No 7,102 on Private Security Companies and the Security of Financial Institutions, 20 June 1983 .................................................................................................115 n 56

Canada Criminal Code of Canada, RS, 1985, c-46 ........................................................... 389, 390, 389 n 51 Export and Import Permits Act (EIPA), RS, 1985, c E-19 .......................................... 386, 386 n 31 Foreign Enlistment Act (FEA), RS, 1985, c F-28 ................................ 385, 386, 385 n 22, 386 n 31, 388 n 43, 405 n 159 National Defence Act, RS, 1985, c. N-5............................ 402–404, 402 n 125–n 140, n 142–n 148 United Nations Act, RS, 1985, c U-2 .............................................................................................388 Special Economic Measures Act (SEMA), 1992, c 17 ........................................ 387, 387 n 36–n 38 Crimes against Humanity and War Crimes Act (CAHWCA), 2000, c 24 ......................391, 392, 391 n 71, 403 Public Service Employment Act, SC 2003, c. 22 ............................................................... 408 n 175 Alberta: Private Investigators and Security Guards Act, RSA 2000, c P-23 ..................... 382 n 3 British Columbia: Security Services Act, SBC 2007, c 30 .................................................... 382 n 3 Manitoba: Private Investigators and Security Guards Act, CCSM, c P-132 .................... 382 n 3 New Brunswick: Private Investigators and Security Services Act, RSNB 1973, c P-16’ 382 n 3 Newfoundland and Labrador: Private Investigation and Security Services Act, RSNL 1990, c P-2................................................................................................................. 382 n 3 Nova Scotia: Private Investigators and Private Guards Act, RSNS 1989, c 356 .............. 382 n 3 Ontario Rules of Court .......................................................................................................... 394 n 85 Ontario Rules of Civil Procedure ................................................................................. 393, 394 n 87 Ontario: Private Security and Investigative Services Act, 2005, SO 2005, c 34................ 382 n 3 Prince Edward Island: Private Investigators and Security Guards Act, RSPEI 1988, c P-20 .................................................................................................................................... 382 n 3 Civil Code of Quebec (CCQ) ........................................................................................ 393, 393 n 81 Québec: Private Security Act, RSQ, c S-3.5 ........................................................... 110 n 25, 382 n 3 An Act respecting detective or security agencies, RSQ, c A-8 ........................................... 382 n 3 Saskatchewan: Private Investigators and Security Guards Act, 1997, SS 1997, c P-26.01 ............................................................................................................................... 382 n 3 Yukon: Private Investigators and Security Guards Act, RSY 2002, c 175 ......................... 382 n 3

Colombia Constitution of 1991 ................................................................................................................416–418 Decree 2535, 17 December 1993 ....................................................... 418 n 18, n 20, n 21, 419 n 23 Decree 356, 11 February 1994........................................ 114 n 55, 413 n 2, 416 n 11–n 14, 420 n 25 Law No 24/1959, 22 May 1959 .....................................................................................................422

Czech Republic Constitutional Act No 1/1993 Coll ...................................................................... 173 n 49, 174 n 52 Civil Code No 40/1964 Coll ................................................................................. 181, 182, 181 n 83 Criminal Code No 140/1961 Coll ............................................................................... 182 n 84–n 86 Criminal Code No 40/2009 Coll .......................................................................... 173 n 48, 177 n 64 Trade Enterprise Act No 455/1991 Coll ........................... 170, 170 n 19, n 21–n 23, 174 n 53, 175 Commercial Code No 513/1991 Coll ........................................................175, 175 n 55, n 57, n 58

xxxii Table of Legislation Act on Foreign Trade with Military Material No 38/1994 Coll......172, 172 n 41, n 44, 181 n 81 Act on Armed Forces of the Czech Republic No 219/1999 Coll ..................... 171 n 27, 174 n 54 Act on Professional Soldiers No 221/1999 Coll ................................................................. 180 n 77 Act on Property of the Czech Republic No 219/2000 Coll .............................................. 176 n 61 Act on Firearms No 119/2002 Coll ....................................................111 n 35, 171 n 24–n 26, n 28 Procedural Act on Administrative Matters No 150/2002 Coll ........................................ 181 n 80 Act on Service of members of security staff No 361/2003 Coll ...................................... 171 n 27 Act on Military Ability No 585/2004 Coll .........................................119 n 99, 178, 178 n 68–n 70 Administrative Act No 500/2004 Coll ................................................................................ 181 n 80 Act on Public Procurement No 137/2006 Coll........................................................... 176, 176 n 60 Labour Code No 262/2006 Coll .................................................................. 175, 176, 175 n 59, 182

Estonia Constitution of the Republic of Estonia ................................................ 126, 126 n 1, 128, 128 n 11 Penal Code, 6 June 2001 149 n 192–n 201, 150, 150 n 203, n 205–n 208, n 210– n 212, 151 n 214 Police Act, 20 September 1990 ..................................................................................... 134 n 53, n 54 Surveillance Act, 22 February 1994............................................................................ 139 n 95– n 97 Citizenship Act, 19 January 1995 ....................................................................................... 149 n 191 Commercial Code, 15 February 1995 ............................................................. 142, 142 n 130–n 132 Defence Forces Service Act, 14 March 2000 .....................................................130 n 29, n 32– n 35 Law of Obligations Act, 26 September 2001 ... 144 n 148, 145 n 149, 147 n 179,148 n 181– n 184 Weapons Act, 13 June 2001 139 n 98, n 99, 140 n 101–n 103, n 106, n 110, n 112, 141 n 113, n 114 Private International Law Act, 22 March 2002 ................... 147 n 168–n 170, n 172, n 174, n 175 Peace-Time National Defence Act, 12 June 2002........................................ 132, 132 n 43, 133 n 48 International Military Co-operation Act, 12 February 2003... 128 n 13, 130 n 27, n 28, 133 n 47 Security Act, 8 October 2003 .....................108 n 17, 126, 127, 126 n 3, 136 n 63, n 66, n 68– n 72, 137 n 73– n 78, n 80, 138 n 83– n 86, 140 n 104, n 105, n 108, n 109 Estonian Strategic Goods Act, 17 December 2003 ................. 141 n 121, n 122, 142 n 124– n 126 Public Procurement Act, 24 January 2007 ..................... 145 n 156, 146 n 160, n 163, n 165, n 166 Defence Forces Organisation Act, 19 June 2008 ...............................................131 n 39, n 41, n 42 Employment Contracts Act, 17 December 2008............... 143 n 137, 144 n 147, 145 n 153, n 154

France Civil Code................................................................................................................ 119 n 95, 203 n 52 Criminal Code ..................115 n 63, 119 n 95, n 102, 201, 201 n 46, n 47, 203, 204, 205 n 55, n 56 Code of Criminal Procedure ................................................................................................. 565 n 38 Code of Military Justice ................................................................................................ 566 n 43–n 46 Labour Code ..................................................................................................112 n 41, 199 n 38–n 41 Law No 82–621, 21 July 1982 ................................................................................................ 562 n 22 Law No 83–629, 12 July 1983 ................................................ 110 n 30, 114 n 55, 196–198, 199 n 37 Law No 95–73, 21 January 1995 ........................................................................................... 213 n 80 Décret No 95–589, 6 May 1995 .............................................................................................. 199 n 36 Law No 2003–239, 18 March 2003 .................................................................................................197 Law No 2003–340, 14 April 2003 .................................................................................. 203, 206 n 59 Law No 2003–591, 2 July 2003 .......................................................................................................212 Décret No 2005–1122, 6 September 2005 .............................................................................. 199 n 37 Décret No 2010–1073, 10 September 2010.....................................................................................197 Law No 2011–267, 14 March 2011 .................................................................................................198

Table of Legislation xxxiii Germany Basic Law (Grundgesetz) ............................................................215 n 1, 216 n 3, 228, 228 n 66, 562 Civil Code, 2002 .................................................. 223, 224, 223 n 46, 224 n 48, n 49, 225 n 53, n 55 Code of Civil Procedure, 2005 ...................................................................................... 224, 224 n 47 Commercial Code, 1897......................................................................................................... 223 n 45 Nationality Act, 1913 ............................................................................................................. 231 n 92 Act on the Application of Direct Force and on the Use of Special Powers by German and Allied Armed Forces and Civil Security Guards, 1965 ....................................... 223 n 43 War Weapons Control Act, 1990........................................................... 116, 116 n 70, 220, 220 n 29 Introductory Act to the German Civil Code, 1994 ............................ 223, 224, 223 n 46, 225 n 55 Act on the International Legal Assistance in Criminal Matters, 1994 .................... 228, 228 n 69 Industrial Code, 1999 ................................................................................ 210 n 29, 216 n 2, n 4, n 6 Weapons Act, 2002 ........................................ 216, 216 n 8, 220, 220 n 25, n 26, 221, 221 n 31, n 33 Act to Introduce the Code of Crimes against International Law (Völkerstrafgesetzbuch), 2002..................................................................................................................................... 228 n 65 Act on the Cooperation with the ICC, 2002................................................................ 228, 228 n 67 Decree on Security Services, 2003 ...................................................................116 n 2, n 6, 220 n 27 Act on the Legal Position of Soldiers, 2005 ................................................................ 219, 219 n 22 Law on Air Traffic Security, 2005 ......................................................................................... 226 n 59 Act on Compulsory Military Service, 2008......................................................... 119 n 99, 231 n 91 Foreign Trade and Payments Act, 2009 ....................................................................... 221, 221 n 33

Iraq Coalition Provisional Order 17 (Revised): Status of the Coalition Provisional Authority, MNF—Iraq, Certain Missions and Personnel in Iraq, 17 June 2004 ..............120, 120 n 106, 318, 318 n 33, 350, 350 n 113, 351, 351 n 114, n 115, n 116, 532, 536 CPA Memorandum 17 on Registration Requirements for PSCs, 26 June 2004 .............110 n 28, 116 n 67 Law on Private Security Companies, 2007 ....................................... 110 n 28, 116 n 67, 120 n 106

Ireland Constitution ............................................................................................................ 564 n 30, 565 n 35

Israel Penal Law, 1977 .......................................................................... 454, 454 n 101, n 102, n 104, n 105 Civil Tort Law (Liability of the State), 1952 ............ 452, 453, 452 n 89, n 91–n 94, 453 n 94, n 96 Control of Products and Services Law, 1957 .....................................................................456 n 112 Military Commander’s Order on Closed Areas (West Bank) (Amendment) (No 34), 1967 of 8 July 1967 .............................................................................................................. 434 n 9 Law on Private Investigators and Security Companies, 1972 ......................................... 445 n 56 Defence Service Act, 1986...................................................................................................... 436 n 15 Law on Implementation of the Interim Agreement regarding the West Bank and Gaza Strip (Adjudication Powers and other Provisions) (Legislative Amendments), 1996 ........................................................................................ 448, 448 n 75, n 76 Law for the Regulation of Security in Public Bodies, 1998 .............................................. 445 n 57 Government Decision 2571 (TM/79), 30 November 2000................................................ 436 n 18 Powers for Maintaining Public Security Law, 2005................................................... 445, 445 n 58

xxxiv Table of Legislation Order on the Control of Products and Services (Export of Defence Equipment and Defence Know-How), 1986 ............................................................................................456 n 112 Export Defence Control Law, 2007 .............................................................. 457 n 113–n 117, n 121

Italy Criminal Code ........................................................................ 114 n 51, 119 n 95, 233–235, 239, 251 Peacetime Military Criminal Code ...................................................................................... 563 n 26 The Consolidated Law on public security, approved by Royal Decree No 773 of 18 June 1931.......................233 n 1, 243, 243 n 8, n 9, 244, 244 n 10, n 11, 245 n 13, 247 n 14, 247 Royal Decree Law No 1952, 26 September 1935 .......................................................... 233 n 1, 243 Royal Decree Law No 2144, 12 November 1936 .......................................................... 233 n 1, 243 Royal Decree No 635, 6 May 1940, as modified by the Decree of the President of the Republic No 153, 4 August 2008 ...... 233 n 1, 243–247, 243 n 8, 244 n 12, 245 n 13, 246 n 16, 247 n 17, 252 Law No 15/1980, 6 February 1980 ................................................................................. 235, 235 n 2 Law No 210/1995, 12 May 1995 ..................................................................................... 237, 237 n 4 Law No 218/1995, 31 May 1995 ............................................................................................249, 251

Latvia Constitution of the Republic of Latvia ............................................................... 128, 128 n 14, n 15 Law on Police, 4 June 1991.................................................................................................... 131 n 40 Civil Law, 1 September 1992 ................... 145 n 153, n 155, 147 n 169–n 171, n 173, n 174, n 178, 148 n 182–n 184 Investigatory Operations Law, 16 December 1993 .................................................. 139 n 95– n 97 Citizenship Law, 22 July 1994 ............................................................................. 119 n 99, 149 n 191 Law on Participation of the National Armed Forces of Latvia in International Operations, 16 February 1995 ...................................... 129, 130, 129 n 16, n 17, 130 n 27, n 28 Criminal Law, 17 June 1998 .. 149 n 192–n 199, n 201, 150 n 202–n 204, n 210, 151 n 212, n 213 National Armed Forces Law, 4 November 1999 ................................................ 130 n 30, 131 n 39 Commercial Law, 13 April 2000 ....................................................................... 142 n 127, 143 n 133 National Security Law, 14 December 2000 .............................. 129 n 18, n 19, 134, 134 n 55, n 56 Labour Law, 20 June 2001 .....................143 n 137, 144, 144 n 141, n 145, n 146, 145 n 153, n 154 Law on Detective Activity, 5 July 2001 ................................................................................ 138 n 87 Military Service Law, 30 May 2002 ...................................................... 116 n 73, 130, 131, 130 n 36 Public Procurement Law, 6 April 2006 ......................... 145 n 156, n 157, 146 n 159– n 164, n 167 Security Guard Activities Law, 11 May 2006 ......................................127, 127 n 6– n 8, 148 n 190 Law on the Circulation of Goods of Strategic Significance, 21 June 2007 ......... 141 n 121–n 125 Law on the Handling of Weapons and Special Equipment, 28 October 2010 ..... 139 n 98– n 100, 140 n 107, n 112, 141 n 113– n 116, n 119, n 120

Lithuania Constitution of the Republic of Lithuania ................................................. 129, 129 n 20, 130 n 31 Civil Code, 18 July 2000 ...................................................................................................... 147 n 168 Criminal Code, 26 September 2000..............149 n 192–n 199, n 201, 150 n 209, n 210, 151 n 212 Law on Enterprises of 8 May 1990 .................................... 142 n 129, 143, 143 n 131, n 133, n 144 Law on the Control of Strategic Goods, 5 April 1995 ........................141 n 121–n 123, 142 n 125 Law on the Basics of National Security, 19 December 1996 ...129, 129 n 24, n 26, 133, 133 n 50, 135, 135 n 60 Law on Public Procurement, 6 September 1997 ..................... 145 n 156, 146 n 158, n 159, n 161

Table of Legislation

xxxv

Law on the Organisation of the National Defence System and Military Service, 5 May 1998..................129, 129 n 25, 130 n 35, 131 n 39, 132, 132 n 44, 133, 133 n 49135 n 62 Law on Companies, 13 July 2000 ............................................................................ 142 n 127, n 128 Law on the Control of Arms and Ammunition of 15 January 2002 ...................... 139 n 98, n 99, 140 n 103, n 104, n 112, 141 n 114, n 115, n 117–n 119 Labour Code, 4 June 2002 ...... 143, 143 n 135, n 138, 144, 144 n 139, n 140, n 142– n 144, n 147, n 148, 145 n 150– n 153 Law on Operational Activities, 20 June 2002 ..................................................................... 139 n 95 Law on Citizenship, 17 September 2002 ........................................................................... 149 n 191 Law on Security of Person and Property (Asmens ir turto saugos), 2004 ..... 127, 127 n 9, n 10, 136 n 63, n 68, 137 n 73

The Netherlands Civil Code....................................................................256 n 11, n 14–n 16, 264 n 57, 266 n 64, n 67 Penal Code 260 n 30–n 32, 261 n 36, 262, 262 n 43, n 44, 263 n 51, n 53, 268 n 75, n 76, 269 n 83 Code of Civil Procedure ............................................................................................... 264 n 55, n 56 Code of Criminal Procedure ................................................................................................. 267 n 73 Economic Offences Act, 22 June 1950 .................................................................................. 263 n 52 War Crimes Act, as amended 10 July 1952 ......................................................... 260 n 31, 261 n 37 Strategic Goods Import and Export Order, 26 April 1963 .................................................. 255 n 7 Sanctions Act 1977, 15 February 1980.................................................................................... 255 n 7 Statute Law on the Dutch Nationality, 9 December 1984 ................................................. 260 n 33 Working Hours Act, 23 November 1995 ............................................................................. 256 n 13 Financial involvement concerning strategic goods Order, 24 October 1996 ................... 255 n 7 Regulation on Arms and Ammunition, 4 July 1997 ............................................................ 255 n 6 Act on Arms and Ammunition, 5 July 1997 .................................................................. 255 n 6, n 8 Act on the private security organisations and private investigation bureaus, 24 October 1997 ....................................................................................................................... 253 n 2 Regulation on security organizations and private investigation bureaus, 3 March 1999, as amended on 2 December 2002 (with respect to educational qualifications) by Regulation of the Ministry of Justice No 5199069/DBZ/02.......110 n 31, 253 n 2 Labor Conditions Act 1998, 18 March 1999 ........................................................................ 256 n 13 Order on the use of force by personnel of the Ministry of Defence in the execution of security guard tasks, 22 July 2000 ............................................................................... 254 n 4 Act on the conflict of laws regarding tort claims, 11 April 2001...................................... 266 n 68 Statute Law on the use of force by guards of military objects, 24 February 2003........... 254 n 4 Act on the Control of Legal Persons, 8 May 2003 .............................................................. 256 n 10 Act on International Crimes, 19 June 2003 ..................... 261, 261 n 39, n 40, 262 n 42, n 45, n 47 Policy Guidelines on Arms and Ammunition, 15 July 2005 .............................. 255 n 6, 269 n 81 Trade Register Act 2007, 22 March 2007................................................................................ 256 n 9 General Customs Act, 3 April 2008........................................................................................ 255 n 7

Portugal Decree-Law 35/2004 of 21 February 2004, as amended by the Decree-Law 198/2005 of 10 November 2005 and by the Law 38/2008 of 8 August 2008.....................................................................................................111 n 32, 117 n 82

xxxvi Table of Legislation Russian Federation Constitution of the Russian Federation, 12 December 1993 ............ 108 n 16, 469, 469 n 42, 480 Civil Code No 51–FZ, 21 October 1994 ........................................... 119 n 102, 481, 481 n 130, 483 Code of Civil Procedure No 138–FZ, 14 November 2002................................. 471, 472, 471 n 52 Criminal Code, 24 May 1996 ....................................................................... 475, 476, 475 n 69, n 70 Code of Criminal Procedure ................................................................................................. 566 n 39 Federal Law No 2487–I on Private Detective and Security Activity in the Federation of Russia, 11 March 1992 .................................... 461–463, 462 n 2–n 6, 466, 467, 474, 482, 483 Order of the Ministry of Defence of the Russian Federation No 557, ‘On Conclusion of Employment Agreements (Contracts) with Civilian Personnel of the Armed Forces of the Russian Federation’, 11 December 1993 ...............470, 470 n 45, 471 n 49, n 50 Federal Law No 61–FZ on Defence, 31 May 1996 ............................................................. 465 n 15 Federal Law No 150–FZ on Weapons, 13 December 1996....................................... 468 n 30–n 34 Decree of the Government of the Russian Federation No 1314, ‘On Approval of the Rules on the Circulation of Combat Weapons, Hand Small Arms and Other Weapons, Munitions and Cartridges, as well as Arm Blanche in State Militarized Organizations’, 15 October 1997................................................................ 468 n 38 Federal Law No 53–FZ on Military Duty and Military Service, 28 March 1998 ........... 465 n 16 Federal Law No 76–FZ on the Status of Servicemen, 27 May 1998 ................................ 465 n 18 Federal Law No 114–FZ on Military Technical Cooperation of the Russian Federation with Foreign Countries, 1998 ..................................................................... 469 n 40 Federal Law No 128–FZ on the State Dactyloscopic Registration in the Russian Federation, 25 July 1998 .......................................................................................... 470, 470 n 43 Federal Law No129–FZ on State Registration of Legal Entities and Individual Businessmen, 13 July 2001 ..................................................................................... 472 n 57–n 59 Labour Code No 197–FZ, 21 December 2001 ....................470, 470 n 48, 473, 474, 474 n 64–n 67 Decision of the Government of the Russian Federation No 319, 17 May 2002 ............. 473 n 63 Decree of the Minister of Defence of the Russian Federation No 20, ‘On Affirmation of a List of Military Positions Taken by Chief and Junior Officers of the Armed Forces of the Russian Federation that can be Replaced by Civilian Personnel’, 28 January 2004 ......................................................................................... 470, 470 n 44, 471 n 51 The Disciplinary Statutes of the Armed Forces of the Russian Federation, approved by the Decree the President of the Russian Federation on 10 November 2007 No 1495................................................................................................................ 480, 480 n 119, n 120 Order of the Minister of Defence No 520, ‘On Provision of a List of Job Positions Taken by the Civilian Personnel in the Armed Forces of the Russian Federation’, 13 October 2008 ................................................................................................................ 470 n 46 Decree of the Government of Russian Federation No 498, ‘Requirement on Licensing the Private Detective (Investigation) Activity’, 23 June 2011.......... 466 n 21–n 29

South Africa Constitution of the Republic of South Africa, Act 108 of 1996 ......... 487, 487 n 1, 488, 489, 492, 494, 499–506 Criminal Procedure Act, 51 of 1977 ............................................................................. 504, 504 n 61 Security Officers Act, 92 of 1987....................................................................................................489 Security Officers’ Board Training Regulations of 1992 ............................................ 502 n 52, n 53 Basic Conditions of Employment Act, 75 of 1997 ...................................................... 505, 505 n 65 Criminal Law Amendment Act, 105 of 1997 ...................................................................... 502 n 54 Regulation of Foreign Military Assistance Act, 15 of 1998................489, 490, 494–498, 505, 506 Firearms Control Act, 60 of 2000 ...................................................................................................493 Private Security Industry Regulation Act, 56 of 2001 .............489–493, 496 n 16, n 17, 493 n 21, 500, 501, 501 n 48, n 51, 505, 505 n 64, 506 Private Security Industry Levies Act, 23 of 2002 ....................................................... 492, 492 n 18

Table of Legislation xxxvii Implementation of the Rome Statute of the International Criminal Court Act, 27 of 2002 ........................................................................................................... 503, 504, 503 n 55 National Conventional Arms Control Act, 41 of 2002 ...............................491, 495, 498–500, 506 Defence Act, 42 of 2002 ...................................................................................................................489 Private Security Industry Regulations, 2002 .............................................................. 493, 493 n 21 Improper Conduct Enquiries Regulations, adopted on 1 March 2003 in terms of s 35(1)(h) of the PSIRA............................................................................................. 501, 501 n 51 Protection of Constitutional Democracy against Terrorist and Related Activities Act, 33 of 2004 ........................................................................................... 503, 503 n 56, 504–506 The Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, 27 of 2006 ...................................489, 490, 492–495, 498–500

Spain Constitution, 6 December 1978 .............................................................................................273, 274 Organic Act No 10/1995 of the Criminal Code, 23 November 1995 ............................................................................................281, 281 n 32, 285, 285 n 46–n 48, 287 Code of Military Criminal Law .................................................................................... 565, 565 n 37 Organic Act No 6/1985 on judicial power, 1 July 1985............................................ 286 n 47, n 49 Organic Act No 2/1986 on Forces and Corps of Security, 13 March 1986 ..................... 274 n 10 Organic Act No 1/1992 on the Protection of Citizens’ Security, 21 February 1992 274 n 4, 280 Act No 23/1992 on Private Security, 30 July 1992 ....................... 273 n 2, 275, 277, 278, 284, 285 Act No 31/1995, on the Prevention of Labour Risks, 1 July 1995 ........................... 289, 289 n 57 Organic Law No 12/1995 regarding the Suppression of Smuggling, 12 December 1995............................................................................................................................. 283, 283 n 37 Royal Decree-Law No 2/1999 modifying Act 23/1992, 29 January 1999 .............. 278, 278 n 24 Organic Act No 15/2003 modifying the Criminal Code, 25 November 2003 ............... 286 n 47 Royal Decree No 2364/1994 approving the Regulation of Private Security, 9 December 2004................................................................................................. 274 n 7, 275 n 12 Organic Act No 5/2005 on National Defence, 17 November 2005 ................................... 274 n 6 Act No 53/2007 on the control of the foreign trade of defence and dual-use material, 28 December 2007 ............................................................................ 281, 282, 281 n 34 Royal Decree No 4/2008, 11 January 2008.......................................................... 275 n 13, 279 n 26 Royal Decree No 2061/2008 which approves the Regulation of control of the foreign trade of defence and other material, and of dual-use products and technology, 12 December 2008 ....................................................................... 281, 282, 282 n 35 Royal Decree No 1628/2009 modifying the Regulation of Private Security and the Arms Regulation, 30 October 2009 ....................................................................... 284 n 38, n 40 Organic Act No 5/2010, 22 June 2010 ................................................................................. 288 n 53

Sweden Penal Code (1962:700) ...................................................................302, 302 n 44, n 45, 304, 304 n 53 Act on Extradition of Offenders (1957:668) ........................................................ 303 n 47, 304 n 50 Act on surrender to Denmark, Finland and Norway (1959:254)..................................... 304 n 49 Tort Liability Act (1972:207) .................................................................. 301, 301 n 39, 305, 305 n 56 Security Company Act (1974:191) ................................................ 295–297, 297 n 15, 299 n 27, 305 Work Environment Act (1977:1160) ..................................................................... 300–302, 300 n 32 Trading Prohibition Act (1986:436) ............................................................................. 299 n 25, n 26 Military Equipment Act (1992:1300) .................................................................... 297, 298, 297 n 18 Act on Cooperation between Sweden and the International Tribunals for Violations of International Humanitarian Law (1994:569)............................................................ 303 n 47 Weapons Act (1996:67) ................................................................................................... 297, 297 n 16 Security Protection Act (1996:627) ............................................................................... 302, 302 n 43

xxxviii Table of Legislation Cooperation with the International Criminal Court Act (2002:329) .............................. 303 n 47 Act on surrender from Sweden according to the European arrest warrant (2003:1156) ......................................................................................................................... 304 n 48 Public Procurement Act (2007:1091) ............................................................................ 301, 301 n 41 Swedish National Police Board Statues (2009:18).............................................................. 296 n 14

United Kingdom Foreign Enlistment Act 1870 ..................................................................................................312, 316 Human Rights Act 1998 .................................................................................................312, 313, 316 International Criminal Court Act 2001 ................................................................312, 313, 314, 316 Private Security Industry Act 2001 ......................................................................312, 314, 316, 323 Export Control Act 2002 .................................................................................................................315 Armed Forces Act 2006...........................................................................................................312, 315 Export Control Order 2008 ............................................................................................................315 Coroners and Justice Act 2009 ...............................................................................................313, 314

United States of America Alien Tort Statute (ATS), 28 USC para 1350 ................................................................363–368, 521 Uniform Code of Military Justice, 10 USC Chapter 47 .............................345, 346, 349, 359–362, 362 n 174, 542, 543, 555 Defence Base Act, 42 USC, para 1651(c) .......................................................................................377 Arms Export Control Act, Pub L 90–629, 1968 ................................................................... 347 n 88 Logistics Civil Augmentation Programme, Army Regulation 700–137, 16 December 1985...........................................................................112 n 46, 341, 341 n 55, 344 n 69, 349 n 102 Torture Victim Protection Act of 1991, 28 USC, para 1350 note..................... 363, 367, 367 n 194 The Federal Activities Inventory Reform Act of 1998, Pub L No 105–270 ....... 85 n 30, 342 n 56 Contractors Accompanying the Force, Army Regulation 715–9, 29 October 1999.............................................................................................................348 n 101–n 104, n 109 Military Extraterritorial Jurisdiction Act (MEJA), 18 USC para 3261 (2000) .............. 120 n 105, 345, 355–358, 355 n 140, n 141 US PATRIOT Act of 2001, Pub L107–56 .......................................................................................354 Criminal Jurisdiction over Civilians Employed by or Accompanying the Armed Forces Outside the United States Service Members and Former Service Members, 71 FR 8946 (2006) ......................................................................................... 356 n 145 National Defense Authorization Act for Fiscal Year 2007, Pub L No 109–364 ........... 120 n 107, 360, 360 n 164 National Defense Authorization Act for Fiscal Year 2008, Pub L No 110–181...... 338, 338 n 32, 345, 345 n 73, 346, 346 n 85 National Defense Authorization Act for Fiscal Year 2009, Pub L No 110–417 ..... 341 n 53, 342, 342 n 62, 343, 343 n 63, n 64, 345, 346, 346 n 79 National Defense Authorization Act for Fiscal Year 2010, Pub L No 111–84 343, 343 n 65, n 67 International Traffic in Arms Regulations (ITAR), 22 CFR, paras 120–30 (2010) . 347 n 89–n 94 National Defense Authorization Act for Fiscal Year 2011, Pub L No 111–383 .......................346, 346 n 80–n 84 Federal Tort Claims Act (FTCA), 28 USC, paras 1346 (2011), paras 2671–80 (2006) ......371–375

Introduction CHRISTINE BAKKER AND MIRKO SOSSAI

T

HE OUTSOURCING OF military and security services is currently the object of intense legal debate at the international level. States employ private military and security companies (PMSCs) to perform functions previously exercised by regular armed forces in the context of armed conflict, contracting them to offer not only logistical support, but also various other services, including: armed guarding and protection of persons, objects, buildings or merchant vessels; maintenance and operation of weapons systems; prisoner detention and interrogation; intelligence; and advice to or training of local forces and security personnel. Other entities too, including international organisations, NGOs and business corporations, have resorted to PMSCs to provide security particularly in crisis situations where local institutions are unable to exercise their prerogatives. The number of private contractors exceeded that of the regular armed forces in recent conflict scenarios.1 This is unlikely to be a temporary phenomenon. Two main reasons explain its rise: on the one hand, the changed character and the complexity of current military operations; on the other, the limited resources available to the regular armed forces after the end of the cold war, as part of a general trend towards the privatisation of public functions in Western countries. Other analysts make the point of the democratic control of the armed forces, by emphasising that governments use PMSCs to circumvent parliamentary control and constitutional constraints on the use of force.2 In recent years, much of the public attention on PMSCs has been a result of numerous incidents which have highlighted the risk of violations of human rights and international humanitarian law by their employees in conflict and postconflict settings. Both the implication of the staff of two commercial firms in torture and cruel treatment of prisoners at the Abu Ghraib detention facility in 2003 and the killing of 17 Iraqi civilians in Nisour Square, Baghdad in September 2007 by US-hired security contractors revealed not only inadequate supervision on the conduct of the PMSCs by the 1 See, eg L Dickinson, Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs (New Haven and London, Yale University Press, 2011) 37. 2 See, inter alia, PW Singer, ‘Outsourcing War’ (2005) 84(2) Foreign Affairs 119, 125.

1

2

Christine Bakker and Mirko Sossai

contracting agencies of the US but also the lack of accountability for the serious crimes committed, at both the national and international levels. In part as a consequence of these events, parallel initiatives have been launched aimed at introducing international standards to bring some uniformity to very uneven national regulation, ranging from strict prohibitions in some countries, to forms of licensing, self-regulation, or simply laissez-faire in others. The main goal of the present book is to analyse and discuss the interplay between international, European and domestic regulatory measures in the field of PMSCs. The assessment of the existing national legislation, with a view to identifying its implications for future international regulation, represents one of the most original elements of the research conducted in the context of the PRIV-WAR project, which forms the basis of this book. Recognising the growing importance of the outsourcing of military and security functions and the legal questions surrounding it, the European Commission has financed a three-year collaborative research project in the context of its 7th Framework Programme: ‘Regulating the Privatisation of “War”: the Role of the European Union in Assuring Compliance with International Humanitarian Law and Human Rights (PRIV-WAR)’. This project, involving seven European universities,3 was launched in January 2008 and was coordinated by the European University Institute, with Francesco Francioni as its Scientific Director. The present collection of essays complements the book War by Contract: Human Rights, Humanitarian Law and Private Contractors, edited by Francesco Francioni and Natalino Ronzitti,4 which comprehensively addresses the human rights dimension of the increasing use of PMSCs, as well as the status of PMSCs under international humanitarian law. That volume also presents a systematic analysis of the field of corporate social responsibility or self-regulation of the industry, and examines several questions related to accountability for acts of PMSCs. As the title of the project suggests, the main questions addressed by PRIV-WAR have been whether the EU could play an active role as regards the regulation of PMSCs, and in what ways the EU could contribute to ensuring compliance with human rights and international humanitarian law. Since January 2008, the research conducted within the framework of this project has sought to highlight the crucial role of the EU in three respects, which had not received much attention in the literature at that time. First, PRIV-WAR intended to offer insights into whether and how the EU should develop a unified position on the international regulation 3 European University Institute, LUISS Guido Carli of Rome, Justus Liebig Universität Giessen, Riga Graduate School of Law, Université Panthéon-Assas (Paris II), University of Sheffield, and Universiteit Utrecht. 4 F Francioni and N Ronzitti (eds) War by Contract: Human Rights, Humanitarian Law and Private Contractors (Oxford, Oxford University Press, 2011).

Introduction 3 of PMSCs. Secondly, the project assessed the need for and potential of harmonisation of the EU Member States’ domestic approaches towards PMSCs. Lastly, the project aimed at offering advice to policymakers on the development of a regulation scheme at the supranational level. As a result of this exercise, the seven participating universities in March 2011 released the PRIV-WAR Recommendations for EU Regulatory Action in the Field of Private Military and Security Companies and their Services. This document was presented during the final conference of the project held in Brussels in April 2011, and is reproduced as an annex to this book. The Recommendations are based on the assumption that with the entry into force of the Lisbon Treaty, entailing the legal upgrade of the EU Charter of Fundamental Rights and the obligation upon the EU to accede to the European Convention of Human Rights and Fundamental Freedoms, EU institutions and EU Member States, when acting within the scope of EU law, have confirmed and consolidated their significant role as guarantors of fundamental rights, and their willingness to be bound by them.5

The document is composed of 13 recommendations, which contain various proposals for the regulation of PMSCs and their services. The suggested options consider the adoption of both legally binding and nonlegally binding instruments, covering on the one hand the harmonisation of national measures regulating private military and security services within the Internal Market, and on the other hand the regulation, in the context of the Common Foreign and Security Policy, of the export of such services to third countries. It should be noted that the European Parliament adopted a resolution in May 2011 in which it considered that the adoption of EU regulatory measures, including a comprehensive normative system for the establishment, registration, licensing, monitoring and reporting on violations of applicable law by private military and security (PMS) companies—both at internal and external level—is necessary.6

It is significant that the two proposals put forward by the European Parliament precisely reflect the content of the PRIV-WAR Recommendations. This might be the starting point of a process towards a legal discipline of the phenomenon at the EU level: it remains to be seen whether the other institutions will follow the Parliament in this direction. The volume is divided into four parts. Part one aims at providing a general overview of the multilevel regulation of private military and security companies. The contribution by Nigel White provides a critical 5 PRIV-WAR Recommendations for EU Regulatory Action in the Field of Private Military and Security Companies and their Services, March 2011, preamble. 6 European Parliament resolution of 11 May 2011 on the development of the common security and defence policy following the entry into force of the Lisbon Treaty (2010/2299(INI)), para 52–53.

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examination of the international initiatives which have been taken in recent years, or which are currently being developed with a view to regulating the PMS sector and their services, in particular the Montreux Document; the Global Code of Conduct on Private Security Providers; and the elaboration of an international convention on PMSCs in the context of the United Nations Human Rights Council. The author undertakes a comparison between the Montreux Document and the Draft Convention, emphasising real incompatibilities as regards the substantive provisions—especially the disagreement as to what can be outsourced to PMSCs—as well as the form of the two international instruments. He then discusses the Draft Convention’s chances of success: the point is made that there is a danger that international hard (treaty) law, if it is adopted, will attract a different clientele of states than the soft law of the Montreux process. Finally, the chapter formulates proposals on how to bridge the divide. The subsequent three chapters discuss how possible regulatory action by the EU would complement the international initiatives and assess its potential impact at the national level for the Member States. In particular, the contributions, from different perspectives, offer further elements of investigation and discussion as regards the content of the PRIV-WAR Recommendations. Guido den Dekker takes stock of the existing regulatory context: while observing that at the EU level there are as yet no specific norms with respect to the private military and security industry, he investigates existing regulations and case law which may have implications for PMSCs and their services. This chapter also touches on the EU position with respect to international humanitarian law and the regulatory context of EU crisis management operations. Chapter 3, by Marco Gestri, assesses the legal bases and the normative instruments which are available to the EU institutions for further regulation, in the light of the constitutive Treaties after Lisbon and on account of the principle of conferred powers, set forth in Article 5 paragraph 2 of the Treaty on the European Union. Finally, the contribution by Mirko Sossai and Christine Bakker intends to show the different tools at the disposal of the EU in the context of its external action to ensure compliance with human rights and international humanitarian law by PMSCs. The analysis addresses hitherto neglected issues in the legal literature, including the use of private contractors in humanitarian aid operations financed by the EU, as well as the possible insertion of a PMSC-related clause in the cooperation agreements concluded by the EU with third countries. Finally, Chapter 5, by Ottavio Quirico, provides a comparative viewpoint on the current national regulation for private military and security services in EU Member States and third countries. The analysis touches upon municipal law with respect to the limits of outsourcing,

Introduction 5 the licensing regime, the hiring contract, and the provision of services and liability issues, by taking into account differences between the home state, the contracting state and the host state. In this way, it provides guidance to the chapters contained in the two subsequent parts of the book. The author concludes that the existing regulation is likely to prove insufficient for PMSCs providing military services, especially when national law does not apply extraterritorially and territorial law is absent or weak. The second part contains ten chapters which cover the regulatory context of PMSCs in a number of EU Member States: the Baltic countries, Belgium, the Czech Republic, France, Germany, Italy, the Netherlands, Spain, Sweden and the UK. In addition to the countries where the seven PRIV-WAR participating institutions are based, this part of the book presents the existing regulation and case law in three other Member States having significant practice in the field of PMSCs. This has been possible thanks to the contribution of external experts, who accepted to cooperate with the research project. An overall assessment of the existing legislation confirms that there are significant disparities among the different countries. The private military and security industry is most developed in France and the UK. Therefore it is not by chance that in the latter country various initiatives have been taken by the government in order to consider options for controlling the activities of PMSCs. The public consultation launched in 2009 concluded that the preferred option was for a system of government-supported self-regulation which incorporates international norms. More generally, it is noteworthy that the provision of security services within the territory is regulated in a satisfactory way in several Member States, whereas there is a lack of norms governing the export of military and security services to third countries. The third part comprises a series of chapters on the existing regulation and case law in Australia, Canada, Colombia, Israel, the Russian Federation, South Africa and the US. They represent a systematic analysis of the domestic legislation in crucial players outside the EU, namely those with a significant practice in the field of PMSCs, including examples of ‘host states’ and ‘home states’. The value of such an effort is twofold. Not only does it serve to look beyond the US as the main actor in military outsourcing, but it also provides a comparative assessment of the approach adopted in other relevant non-European legal orders. Nonetheless, the chapter by Kristine Huskey and Scott Sullivan offers an updated and comprehensive survey of the US law and policy governing private military contractors after 9/11: despite the efforts by the Department of Defense and Department of State to remedy problems with the use and oversight of military contractors, both the Commission on Wartime Contracting and the Government Accountability Office continue to document

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the need for better management and accountability, clearer standards and policy, and improved screening and training of contractors. The choice of the non-EU countries has been made on the basis of various criteria, which take into consideration the enactment of a domestic discipline regarding: the export of military and security companies, as is the case of the very restrictive approach taken by South Africa; the existence of a significant practice on the exercise of civil and criminal jurisdiction over PMSCs; and the potentialities for the development of a military and security industry within the territory of the state. In particular, the chapters on Colombia and Israel constitute a systematic analysis of the use of PMSCs in two countries which have been involved in an armed conflict in recent decades. The case of Israel is of particular interest: Yael Ronen points out that the attention paid by Israeli policy makers to the question of the civilianisation of the military and privatisation of certain functions is related to the specificities of the governmental structure where the military establishment has originally been involved in various functions that are ordinarily assigned to civilian and even private operators. All the reports in Parts II and III constitute the final and updated release of previous papers submitted by the authors: they take advantage of the exchange of views promoted by the PRIV-WAR project in the context of various meetings which brought together academic experts and relevant stakeholders, such as a workshop held at the European University Institute in March 2009. The last part of the volume includes chapters which raise and investigate certain challenging issues that emerged from the discussion on the content of the PRIV-WAR national reports: the exercise of criminal jurisdiction over private contractors, with a focus on military justice, and the abuse by PMSCs of tax havens. The involvement of civilian contractors in military operations makes it necessary to address the issue of the criminal jurisdiction for the crimes committed on foreign soil. In principle, the employees of PMSCs are subject to the law and jurisdiction of the country in which they are deployed. However, recent practice showed that contracting states have relied on different legal sources, such as local laws or specific bilateral agreements, to grant immunity from the jurisdiction of the host state. In this context, Chapter 23, by Ieva Miluna, looks closely at the classical legal bases for the exercise of criminal jurisdiction over PMSCs and their employees, as they emerge from the above analysis of national legislation: the principles of territoriality, active and passive personality, the protective principle and universality. This contribution also deals with other important issues, including the criminal jurisdiction for private contractors hired by international organisations and the question of the criminal liability of legal persons.

Introduction 7 Some states, such as the US and the UK, have expanded the competence of military courts to civilian contractors. Although the matter of PMSC employees has not been debated in depth by international human rights bodies, it is encompassed within the wider issue of civilians brought before military courts. In this regard, human rights concerns have been raised over the application of military jurisdiction to ‘civilians’. Chapter 24, by Stefano Manacorda and Triestino Mariniello, focuses on the approach taken by the European Court of Human Rights with regard to military criminal justice. In particular, the authors examine the compatibility of military jurisdictions with the Convention system of protection: indeed, the Strasbourg Court has taken a critical position on both military courts and special courts, because of their lack of independence and impartiality when they are composed of civilian and military judges. Finally, in Chapter 25, Giuseppe Melis and Alessio Persiani give a comprehensive overview of various legal challenges posed from a tax perspective by the use of PMSCs. They cover inter alia the tax implications of the residence of such companies and the question of tax exemptions and tax breaks granted to PMSCs, as well as the issue of confidentiality in the exchange of information. With these contributions, the editors and authors of this volume have attempted to shed some light on the current patchwork of norms applicable to PMSCs at the international, European and domestic levels, and to suggest possible avenues for further normative developments, with a particular focus on the potential role of the European Union in this regard. PRIV-WAR benefited from the added value of the European approach, which characterises the projects funded by the EU 7th Framework Programme of research: the results of the legal analysis by the seven academic partners were discussed, in the context of a constructive dialogue, with the wider network of the relevant stakeholders that comprise the European institutions, the public administration at national level, international organisations, the industry and NGOs. It was also thanks to this fruitful interaction that the PRIV-WAR consortium was able to take a forward-looking perspective. July 2011

1 Regulatory Initiatives at the International Level NIGEL D WHITE*

I . I NTRODUC TION

T

HE KILLING OF 17 Iraqi civilians in Nisour Square, Baghdad, on 16 September 2007 by armed employees of the US-based Blackwater company, shone a spotlight on the activities of private contractors in conflict and post-conflict zones around the world. The limited mechanisms and forms of accountability for human rights violations by private military and security contractors (PMSCs) at both the national and international levels were starkly revealed by this incident, and, in part, contributed to parallel efforts to bring some uniformity to very uneven national regulation (currently ranging from severe restrictions in South Africa1 to forms of licensing in the US2 and to self-regulation in the UK3) by means of international standards and regulation. This chapter focuses on those international processes directed as regulating the private military and security industry specifically, and only refers in passing to the wider debate on corporate social responsibility and accompanying international soft law and regulation.4

* Parts of this chapter are based on an article by ND White, ‘The Privatization of Military and Security Functions and Human Rights: Comments on the UN Working Group’s Draft Convention’ (2011) 11 Human Rights Law Review 135. 1 M Caparini, ‘Licensing Regimes for the Export of Military Goods and Services’ in S Chesterman and C Lehnardt (eds), From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford, Oxford University Press, 2007) 168. 2 For the complex US national laws regulating PMSCs see KA Huskey and SM Sullivan, Chapter 16 below. 3 A Bohm, K Senior and A White, Chapter 15 below. 4 The major instruments are the OECD’s ‘Guidelines for Multinational Enterprises’ (2000); the UNSG’s ‘Global Compact’ (2000); and the UN Sub-Commission’s ‘Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with regard to Human Right’s (2003). See also J Ruggie, Special Representative of the Secretary General for Business and Human Rights, ‘Protect, Respect and Remedy A Framework for Business and Human Rights’, UN Doc A/HRC/8/5 (7 April 2008).

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Nigel D White I I . T HE MON TREUX P ROC ESS

The first international approach to be considered briefly is the Swiss/ International Committee of the Red Cross (ICRC)-initiated Montreux process, which is centred upon the Montreux Document endorsed on 17 September 2008 by 17 states (including the US, UK, France, China, Iraq, Afghanistan, Sierra Leone and South Africa). The Document affirms the legal obligations under international humanitarian law and international human rights law of states in which PMSCs are based (home states), as well as states who engage PMSCs (contracting states) and those where they carry out their functions (host states). In addition to identifying ‘hard’ laws binding under custom or treaty, the Montreux Document also lists ‘soft standards in the form of 73 “good practices”, which may lay the foundations for the regulation of PMSCs through contracts, codes of conduct, national legislation, regional instruments and international standards’.5 Though it invokes a mixture of soft and hard law, the Document itself is a not in the form of a treaty and, as recognised in the Preface, is therefore ‘not a legally binding instrument and so does not affect existing obligations of States under customary international law or under international agreements to which they are parties’.6 As a piece of soft law, adopted outside any formal organisational structures, its claim to identify existing obligations while proposing good practice may seem be wholly constructive, but there are problems with the Montreux Document, not least in the fact that an ad hoc group of 17 states clearly cannot represent the wider international community. Having said that, the involvement of the ICRC does increase its legitimacy, as does the fact that it is open to other states to endorse (the total number of states supporting the Document is now 35).7 The international law obligations identified, and good practices proposed in the Montreux Document are mainly applicable to states, and, while PMSCs and their personnel do not completely escape from those 5 J Cockayne, ‘Regulating Private Military and Security Companies: The Content, Negotiations, Weaknesses and Promise of the Montreux Document’ (2008) 13 Journal of Conflict and Security Law 401, 402. 6 UN Doc A/63/467-S/2008/636, Annex, ‘Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict’ (17 September 2008) para 6. 7 Information on Swiss Department of Foreign Affairs website, available at: www.eda. admin.ch/eda/en/home/topics/intla/humlaw/pse/parsta.html. Russia was involved in the negotiations that led to the Document but has not endorsed it. See JL Gomez del Prado, ‘Private Military and Security Companies and the UN Working Group on Mercenaries’ (2008) 13 Journal of Conflict and Security Law 429, 443; Cockayne, above n 5, 425. The industry was well represented in the negotiations; del Prado, above n 7, 443. The Swiss government disseminated the Montreux Document at the UN (see UN Doc A/63/467S/2008/636), but it has not been endorsed by the General Assembly or Security Council.

Regulatory Initiatives at the International Level 13 provisions,8 the Document does not attempt to regulate the industry; rather, it serves to remind states of their obligations when engaging PMSCs or allowing them to operate from or in their territories. Furthermore, though human rights obligations are included, the focus of the Montreux Document is on the application of the lex specialis of international humanitarian law to PMSCs in situations of armed conflict, when it is arguably more likely that PMSCs will be more readily deployed to post-conflict situations, where the lex generalis of international human rights law will be applicable. The full title of the Document reflects this bias—the ‘Montreux Document on Pertinent International Legal Obligations and Good Practices of States related to operations of Private Military and Security Companies during Armed Conflict’. Gomez Del Prado, a member of the UN Working Group on the Use of Mercenaries, argues that the Document ‘recognises de facto this new industry and the military and security services it provides’, and further that it ‘legitimises the services the industry provides, which still remain unmonitored and unregulated’.9 Cockayne, on the other hand, while recognising the weaknesses of the Document, argues that it seems poised to ‘provide a set of generally respected standards on which other regulatory initiatives might be built’.10 Though the Montreux Document does encourage national monitoring and supervision by home, host and contracting states (including licensing and accountability mechanisms),11 it does not itself establish any international mechanism for regulation. However, the Montreux process has led to the development of a Code of Conduct, which is premised on there being an oversight mechanism. This chapter turns to examine the code of conduct and considers whether international regulation based on soft instruments can fill a gap in oversight and accountability, or whether it is still necessary to develop binding international treaty commitments and oversight.

I I I . T H E I NT E R NATION AL C ODE OF C ON DUC T

On 9 November 2010, 58 private security companies signed up to a Swisssponsored International Code of Conduct for Private Security Service Providers, a figure which rose to 71 by 11 February 2011. Companies signing up included Triton, Aegis, Control Risks, Dyncorp, G4S and Xe. The Code is premised on the Montreux Document, but the preamble also refers to the ‘Protect, Respect, and Remedy’ human rights framework for 8

See Montreux Document above n 6, Part I.E, paras 22–26. Del Prado above n 7, 444. Cockayne above n 5, 426–27. 11 For examples see Montreux Document above n 6, Part II.A, paras 19–23; Part II.B, paras 25, 46–52; Part II.C, paras 54, 68–73. 9

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business developed by the UN Secretary General’s Special Representative on Business and Human Rights—John Ruggie.12 In signing up to the Code, companies recognise that they must act ‘with due diligence to avoid infringing the rights of others’.13 More specifically on this due diligence requirement, the Code provides that signatory PMSCs: Will exercise due diligence to ensure compliance with the law and with the principles contained in this Code, and will respect the human rights of persons they come into contact with, including the rights to freedom of expression, association, and peaceful assembly, and against arbitrary or unlawful interference with privacy or deprivation of property.14

In signing up, PMSCS ‘commit to the responsible provision of Security Services so as to support the rule of law, respect the human rights of all persons, and protect the interests of their clients’.15 Security services are defined as: guarding and protection of persons and objects, such as convoys, facilities, designated sites, property or other places (whether armed or unarmed), or any other activity for which the personnel of companies are required to carry or operate a weapon in the performance of their duties.16

The due diligence requirement emphasised in the code of conduct is not by itself a binding human rights obligation on PMSCs,17 in contrast to the due diligence obligations placed on states to protect human rights discussed below in section V. This significant limitation in the regulatory framework is made clear in the Code of Conduct: This Code complements and does not replace the control exercised by Competent Authorities, and does not limit or alter applicable international law or relevant national law. The Code itself creates no legal obligations on the Signatory Companies, beyond those which already exists under national or international law. Nothing in this Code shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law.18

Though the signatory companies commit to act in accordance not only with the Code but also with applicable law,19 the Code itself is 12 Above n 4. See the latest ‘Draft Principles for the Implementation of the “Protect, Respect and Remedy” Framework’ (November 2010), available at www.reports-and-materials.org/Ruggie-UN-draft-Guiding-Principles-22-Nov-2010.pdf (Ruggie, Draft Principles, 2010). 13 International Code of Conduct for Private Security Providers 2010 (Code of Conduct) paras 2–3, available at www.icoc-psp.org/uploads/INTERNATIONAL_CODE_OF_ CONDUCT_Final_with_Company_Names.pdf. 14 ibid, para 21. 15 ibid, paras 2–3. 16 ibid, section B. 17 This is reflected in Ruggie’s Draft Principles (2010), above n 12, principle 12. 18 Code of Conduct, para 14. 19 Code of Conduct, paras 6 and 16.

Regulatory Initiatives at the International Level 15 not binding and there are doubts about the nature of the applicability to corporate actors of a number of international laws, such as human rights law, which is primarily binding on states.20 Indeed, the reference to certain human rights (for example, freedom of association) and not others (such as the right to life) in the Code is problematic, though the development of further standards is envisaged.21 National laws can of course cover the activities of corporate entities, but host states’ legal orders are often weak in conflict or post-conflict situations, and while there is nothing to prevent home states legislating for the regulation of PMSCs and requiring them to comply with human rights, many will be reluctant to assert extraterritorial jurisdiction in their legislation or enforcement of such laws.22 The Code, despite gaps, does have well-developed and quite specific rules on the use of force, and on detention as well as clear prohibitions on torture or other cruel, inhuman or degrading treatment;23 sexual abuse and gender-based violence;24 human trafficking;25 slavery and forced labour;26 child labour;27 and discrimination,28 all of which widens the Code’s human rights coverage. The rules on the use of force specify that force shall not ‘exceed what is strictly necessary, and should be proportionate to the threat and appropriate to the situation’, and that PMSC personnel shall not use firearms ‘except in self-defence or defence of others against the imminent threat of death or personal injury, or to prevent the perpetration of a particularly serious crime involving grave threat to life’,29 thereby allowing violations of the right to life in certain specific circumstances, including the protection of civilians in fear for their lives. Though this fits in with the wider responsibility to protect debate,30 it is highly questionable whether a non-binding code can imbue PMSCs with such a right. The Code requires signatory companies to exercise due diligence in the selection of personnel, which includes checks on the criminal and military records of individuals, as well as reviewing fitness to carry weapons.31 Such companies also agree to the training of personnel in 20 For a number of perspectives on this issue see P Alston (ed), Non-State Actors and Human Rights (Oxford, Oxford University Press, 2005) chs 5, 6 and 8. 21 Code of Conduct, para 10. 22 Recognised in Ruggie’s latest report (2010), above n 12, principle 2 and commentary. 23 Code of Conduct, paras 35–37. 24 ibid, para 38. 25 ibid, para 39. 26 ibid, para 40. 27 ibid, 41. 28 ibid, 42. 29 ibid, paras 30–31. 30 For discussion see S Breau, ‘The Impact of the Responsibility to Protect on Peacekeeping’, (2006) 11 Journal of Conflict and Security Law 429. 31 Code of Conduct, paras 45, 48 and 50.

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‘all applicable international and relevant national laws, including those pertaining to international human rights law, international humanitarian law, international criminal law and other relevant criminal law’.32 In addition to management and training requirements, signatory companies agree to establish grievance procedures to address claims alleging failure to respect the principles contained in the Code; such procedures must be ‘fair, accessible and offer effective remedies’.33 Such self-regulation, whereby signatory companies agree in a nonbinding instrument to undertake to respect international legal principles and norms, has the advantage of applying directly to PMSCs and thereby overcoming the structural weaknesses of international law. However, without a strong regulatory mechanism to oversee the implementation of the Code and to ensure that the principles are being respected, that satisfactory training is being provided and that adequate remedies are being accessed by victims of human rights or other abuse, such a scheme will be limited and at worst will be tokenistic. The Code is surprisingly light on regulation, though in the preamble an ‘independent governance and oversight mechanism’ is envisaged; and a temporary board or Steering Committee consisting of 6–9 stakeholders has been established to develop such an oversight mechanism by November 2011.34 The mandate and functions of the mechanism are not specified beyond the ‘maintenance and administration of the Code’,35 and a certification function for signatory companies.36 At its initial meeting on 31 January 2011, the Steering Committee, consisting of three industry representatives (including G4S and Aegis), representatives from three civil society organisations (including Human Rights Watch) and representatives from the US and UK, discussed the possible elements for an eventual oversight mechanism (including an ombudsman option).37

I V. T H E DRAFT C ON V EN TION P ROC ESS

In contrast to the soft laws of the Montreux Document and Code of Conduct, the second development in the proposed international regulation of PMSCs would take the form of hard or binding law. The Draft Convention on Private Military and Security Companies (‘Draft Convention’) was put forward to the Human Rights Council by the 32

ibid, para 55. ibid, paras 66–68. 34 ibid, paras 9 and 11. 35 ibid, para 12. 36 ibid, para 8. 37 See International Code for Private Security Service Providers website, www.icoc-psp. org. For the Steering Committee’s minutes see www.icoc-psp.org/uploads/Minutes_SC_ Mtg_Jan.2011.pdf. 33

Regulatory Initiatives at the International Level 17 UN Working Group on the Use of Mercenaries in July 2010.38 The UN Working Group was established in 2005 by the UN Commission on Human Rights as one of its special procedures,39 replacing the Special Rapporteur on the use of mercenaries. The Working Group’s mandate, in part, is the study of PMSCs and the proposal of legal principles that would encourage such actors to respect human rights in their activities. Though the Working Group has emerged from the UN’s historical concern with prohibiting mercenarism in all its forms, its approach to the issue of PMSCs has not been so prescriptive. However, one of the problems the Working Group will have in promoting the Draft Convention is the Group’s traditional concern (reflected in the Group’s nomenclature) with extending and entrenching the prohibition of mercenaries and mercenary activities. Just as the Montreux Document’s legitimacy is undermined by the fact that it is promoted by those hosting and using PMSCs, so the Draft Convention is arguably tainted by its creator’s history. There is little doubt that the Working Group is critical of the Montreux Document. In its report to the March 2009 session of the Human Rights Council, the Working Group stated that ‘while it is a good promotional document on existing international humanitarian law, the document has nevertheless failed to address the regulatory gap in the responsibility that States have with respect to the conduct of PMSCs and their employees’.40 This led the Working Group to propose a treaty, to be supplemented (at a later stage) by a ‘model [domestic] law on PMSCs that would assist national authorities in the elaboration and adoption of domestic legislations to regulate and control the activities of PMSCs’.41 The future of the Draft Convention though is clouded by considerable doubt. The debates in the Human Rights Council in September and October 2010 on the Working Group’s report and Draft Convention were not encouraging in this regard, although ultimately the Draft Convention, or at least a process for its further development, survived. Most developing states on the Council, including those representing the African Group and the Organization of Islamic Conference but also Russia and China, supported the Working Group’s report and the idea of a binding treaty on the international regulation and monitoring of PMSCs, pointing in support to both the unwillingness of states to accept responsibility for PMSCs and the lack of accountability when human rights abuse has been committed by such contractors. There was strong opposition from the US and the UK, as well as the EU. The objections were based on 38 ‘Report of the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Self-determination’, UN Doc A/ HRC/15/25 (2 July 2010). 39 Res 2005/2 (7 April 2005). See also Res 7/21 (28 March 2008). 40 UN Dc A/HRC/10/14, para 3. 41 Del Prado above n 7, 440.

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questioning the need for a new treaty, given the existence of international standards and initiatives (clearly meaning the Montreux process), as well as objecting to the Council’s competence over a matter which was not centrally one of human rights.42 On 1 October 2010 the Human Rights Council adopted a Resolution by 32 votes to 12, with 3 abstentions, establishing an intergovernmental open-ended working group to elaborate a legally binding instrument on the regulation, monitoring and oversight of the impact of the activities of PMSCs on the enjoyment of human rights, on the basis of the Draft Convention proposed by the Working Group.43 Thus the prospect of achieving a human rights-focused treaty on PMSCs remains, but the debates in the Council reflect deep ideological and political differences on the role of private contractors that will prove very difficult to overcome. It is clear that for successful regulation of PMSCs, as with any other attempt to regulate non-state actors, there needs to be a synthesis between international standard setting, supervision and accountability, and robust national systems of licensing and regulation. The Montreux Document and Code of Conduct are arguably deficient as an international regime for standard setting and regulation, given that they are founded on soft law and a significant degree of self-regulation, and since the oversight mechanism, even if it has adequate powers, will contain within it industry representatives. They are thus a weak base upon which to build national regulation, which to be compatible with the Montreux regime will only need to be similar in form, ie consisting of a national code of conduct and being largely self-regulatory. The question is whether the Draft Convention fares any better. This section considers some components of the Draft Convention and then considers the prospects for its future in the light of the growing momentum of the Montreux process.

A. No Outsourcing of Inherently Governmental Functions The premise underlying the Draft Convention is that there are inherently governmental or state functions that should not be delegated or outsourced.44 This is based on a particular understanding of the role of the 42 See the summary of the Human Rights Council debates in the press releases of 14 September 2010 (www.ohchr.org/EN/NewsEvents/Pages/DisplayNews. aspx?NewsID=10327&LangID=E) and 15 September 2010 (www.ohchr.org/EN/ NewsEvents/Pages/DisplayNews.aspx?NewsID=10328&LangID=E). 43 UN Doc A/HRC/15/L.22, 27 September 2010. For a summary of the Human Rights Council meeting and voting see the press release of 1 October 2010 (www.ohchr.org/EN/ NewsEvents/Pages/DisplayNews.aspx?NewsID=10407&LangID=E). 44 See the preamble of the Draft Convention, which expresses concern about the ‘increasing delegation or outsourcing of inherently State functions which undermine any

Regulatory Initiatives at the International Level 19 state, a view that might not be shared by all governments, especially those with the most aggressive approaches to privatisation. It contrasts with the Montreux Document, which only identified prohibitions on contracting states outsourcing activities that international humanitarian law assigns to states, such as exercising the power of the responsible officer over prisoners of war or internment camps.45 The ‘Definitions’ section of the Draft Convention defines inherent state functions which are ‘consistent with the principle of State monopoly on the legitimate use of force’, and cannot be outsourced or delegated to non-state actors. These functions include: direct participation in hostilities, waging war and/or combat operations, taking prisoners, law-making, espionage, intelligence, knowledge transfer with military, security and policing application, use of and other activities related to weapons of mass destruction and police powers, especially the powers of arrest or detention including the interrogation of detainees.46

Given the presence of private operators in Abu Ghraib prison in recent years, this constitutes a timely attempt by the drafters to attempt to draw a line between what is governmental and what is not, but the width of this provision seems to encroach on functions already being performed by private contractors and will no doubt lead to opposition to the Convention from states where the PMSC industry is largely based. While the Montreux Document views PMSCs as civilians and frowns upon them directly participating in hostilities (though not directly prohibiting them from so doing),47 it assumes that all other services can legitimately be performed by such actors. The Montreux Document states that military and security services include, in particular, armed guarding and protection of persons and objects, such as convoys, building and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel.48

Thus there are clearly problems in compatibility between the Montreux Document and the Draft Convention. There are problems, though, with the Draft Convention’s underlying premise that there are functions that can only be performed by the state. Advocates of the free market might dispute such an assertion, especially given the lack of rationale in the Convention beyond the

State’s capacity to retain its monopoly on the legitimate use of force’. See also Art 1(1) Draft Convention, above n 38. 45 46 47 48

Montreux Document, above n 6, Part 1A.2. Draft Convention, above n 38, Art 2(i). Montreux Document, above n 6, Part 2, paras 1, 24 and 53. ibid, Part 1, para 9.

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state’s monopoly on the use of force.49 While this monopoly might be accepted, some of the prohibited activities listed in the Draft Convention are not clearly derived from it. Although prohibiting the use of force by PMSCs to overthrow a government or to otherwise violate a state’s sovereignty, a position that reflects the Working Group’s concern with mercenary activities,50 the Draft Convention recognises that PMSCs will often need to carry arms, and thus attempts to impose limitations on the use of force by PMSCs, but does not prohibit it altogether. When using force, PMSC employees must exercise restraint, minimise damage, injury and loss of life, and may only use force to defend themselves from ‘imminent unlawful threat of death or serious bodily injury’; to defend persons they are contracted to protect under similar circumstances; to resist abduction; and to prevent the commission of a ‘serious crime that would involve or involves a grave threat to life or of serious bodily injury’.51 This final provision would apparently allow PMSCs to defend civilians under imminent threat of serious injury, and mirrors the UN’s current policy of mandating peacekeepers to protect civilians.52 While the Working Group is strongly in favour of maintaining the state’s monopoly over the use of force, it pulls back from the full application of this principle when faced with the moral dilemma of how to effectively protect vulnerable civilians in post-conflict or conflict situations (where both the host and visiting states’ forces are quite often understaffed and underequipped), thus allowing PMSCs some latitude in this regard. The idea of PMSCs using force may be distasteful, but if it is used in a regulated manner to protect the human rights of vulnerable people, then arguably it should not be prohibited. However, it is one thing to recognise that in certain circumstances PMSCs are allowed to use force in a binding treaty provision, and another to claim such a right in a non-binding Code of Conduct (as discussed in section III above). Essentially, the difference is that states, by becoming parties to the (Draft) Convention, would be recognising that PMSCs operating within their jurisdiction have this right, something that states clearly have the competence to do, while companies signing a Code of Conduct are simply granting such rights to themselves, which is something they are not competent to do.

49

But see R Nozick, Anarchy, State and Utopia (Oxford, Basil Blackwell, 1974) 113. Draft Convention, above n 38, Art 8(1)(a)–(d). This provision also prohibits attacks on civilians. 51 ibid, Art 18(3)(4). 52 ND White, ‘Empowering Peace Operations to Protect Civilians: Form over Substance?’ (2009) 13 Journal of International Peacekeeping 327. 50

Regulatory Initiatives at the International Level 21 B. Prohibited Activities In general, the Draft Convention is restrictive on the types of activities that can be carried out by PMSCs. State responsibility, and possibly individual responsibility, is engaged if PMSCs either undertake functions that would be inherently governmental per se53 or perform legitimately outsourced activities that violate the standards of international human rights law or, where applicable, international humanitarian law.54 State parties are required to take such ‘legislative, administrative and other measures as may be necessary to ensure that PMSCs and their personnel are held accountable for violations of applicable national or international law’.55 Each state party is required to enact offences under national law prohibiting acts carried out by PMSCs that are either in furtherance of inherently state functions, violating international standards (under international human rights law, international criminal law and international humanitarian law) or other provisions of the Draft Convention, such as those limiting the use of firearms. Furthermore, unlicensed or unauthorised PMSC activities should also be made an offence under national law.56 As well as creating offences leading to punishment, the Draft Convention requires that state parties regulate the activities of PMSCs by adopting and implementing national legislation.57 In a formula common to many suppression conventions, each state party is required to establish jurisdiction over the above offences when the offence is committed within its territory, or onboard a ship or aircraft registered under its laws, or when the offence is committed by its nationals, and also permits the assertion of jurisdiction when the victim is one of its nationals.58 Furthermore, each state party is required to establish jurisdiction when the offender is present within its territory and it does not extradite such a person to any other state party asserting jurisdiction over such a person.59 This aut dedere aut judicare approach follows the methods used in various human rights and anti-terrorist treaties, but its weaknesses are well known. However, unlike most suppression conventions, the Draft Convention includes a limited overview of national prosecutions by requiring the state in question to communicate the final outcome to the Oversight Committee that would be set up if the treaty came into force.60 Presumably the Oversight Committee

53 54 55 56 57 58 59 60

Draft Convention above n 38, Art 9. ibid, Arts 7 and 10. See also Art 11, which prohibits arms trafficking by PMSCs. ibid, Art 5(2). ibid, Art 19. ibid, Art 12. ibid, Art 21. ibid, Art 21(5). ibid, Art 27.

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would be able to consider the efficacy and fairness of any prosecutions communicated to it under the state reporting procedure.61

C. International Supervision Supervision and regulation of PMSCs should occur at both the international and national levels to be effective. At the international level, the Draft Convention, if adopted and in force, would provide for some basic rules applicable to the activities of PMSCs and those states/organisations that employ them, and a means of supervision by a Committee on the Regulation, Oversight and Monitoring of Private Military and Security Activities (Oversight Committee). This supervisory scheme basically follows the model of various UN human rights treaties from the International Covenants of the mid-1960s onwards. The proposed Oversight Committee, consisting of international experts,62 would receive reports from state parties on the legislative, judicial and administrative or other measures they have adopted to give effect to the Draft Convention; and the Committee shall make observations and recommendations thereon.63 There are two further proposed methods of supervision and accountability by the Oversight Committee. First, under an inquiry procedure, if the Committee receives reliable information which appears to contain well-founded indications of ‘grave or systematic violations’ of the Convention, and after receiving observations from the states where the offences occurred and where the companies are registered, it may launch a confidential inquiry undertaken by one or more members of the Committee. Such an inquiry could, with the agreement of the states concerned, undertake an on-site visit.64 If the Inquiry procedure has not produced a satisfactory solution, the Draft Convention envisages the use of a Conciliation Commission of five persons drawn from the Committee and/or elsewhere, created with the consent of the parties to the dispute, with a view to achieving an amicable solution on the basis of respect for the Convention.65 Having a range of potential avenues for resolving disputes and claims may help to ensure that accountability is possible even in the most sensitive of situations. However, unfortunately, the focus of the inquiry and conciliation processes seems to be on states, and not on the victims of violations. Having said that, in addition to a state complaints procedure,66 which, 61

ibid, Art 32. ibid, Art 29. 63 ibid, Arts 31–32. The Committee is also requested to establish and maintain an international register of PMSCs—Art 30. 64 ibid, Art 33. 65 ibid, Art 35. 66 ibid, Art 34. 62

Regulatory Initiatives at the International Level 23 if other human rights treaties are any guide, is unlikely to be used, the Draft Convention contains an individual and group petition procedure which state parties may opt in to. Individuals or groups claiming to be victims of a violation by state parties (that have indicated their consent to the process) of any of the rights contained in the Convention may bring a petition. The lack of redress against PMSCs directly in the Convention is remedied by the requirement that each party implements in its national law legislation giving effect to the Convention, thus giving complainants local remedies that must be exhausted before a complaint is made to the Committee. The Committee shall forward its suggestions and recommendations, if any, to the party concerned and to the petitioner.67 Though the remedy seems weak, this is standard in this type of procedure, and, given the evidence from the various UN human rights committees, can be successful if the Committee performs its tasks with impartiality and bases it decisions on accepted interpretations of international law. If the Oversight Committee establishes its legitimacy, then its decisions will generally be accepted by state parties, and it will be the job of the governments of state parties to enforce these decisions against PMSCs based in or operating on their territory, or employed by them.

D. National Regulation Effective regulation of PMSC activities cannot be undertaken by a UN-sponsored, treaty-based Oversight Committee operating at the international level or the type of stakeholder monitoring process envisaged by the Montreux process; such bodies primarily facilitate the implementation of common international standards, with some limited accountability. Rather, effective control and accountability of PMSCs is dependent on a system of national regulation and enforcement. The Draft Convention would require state parties to establish a comprehensive domestic regime of regulation and oversight over the activities in its territory of PMSCs and their personnel including all foreign personnel, in order to prohibit and investigate illegal activities as defined by this Convention as well as by relevant national laws.

To facilitate this, state parties are required to establish a register and/or a governmental body to act as a national centre for information concerning possible violations of national and international law by PMSCs. State parties shall investigate reports of violations of international humanitarian law and human rights norms by PMSCs and ensure prosecution and

67

ibid, Art 37.

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punishment of offenders, as well as revoking licences given under the national licensing system required by the Draft Convention.68 The Draft Convention envisages national licensing regimes69 that should cover trafficking in firearms,70as well as the import and export of military and security services,71 but there is little detail in the Draft Convention on whether licences should be general to companies or specific to individual contracts. To avoid the development of vastly different national licensing regimes, and consequent problems of forum shopping, it may be necessary, in any final version, to specify some minimal conditions that rule out the possibility of a company being granted an open-ended and unsupervised licence. Such conditions may be developed in the jurisprudence of the Oversight Committee, which is required to be kept informed about licensing regimes by those parties that import or export PMSC services.72 The requirement that state parties each have a register of PMSCs operating within their jurisdiction, and establish a governmental body responsible for its maintenance and to exercise oversight over their activities,73 is equally lacking in detail, and again could lead to a very weak system of registration and licensing. However, what is clear from the Draft Convention is the view that a national (and international) system of self-regulation is not sufficient. The statement in the preamble that codes of conduct are ‘not sufficient to ensure the observance of international humanitarian law and human rights law by the personnel of these companies’ is a shot across the bows on the Montreux process and Code of Conduct, as well as national selfregulatory regimes being developed in the UK.74

E. Right to an Effective Remedy The preamble of the Draft Convention states that: The victims of violations of international humanitarian and human rights [laws] committed by the personnel of PMSCs, including but not limited to extrajudicial, summary or arbitrary executions, disappearances, torture, arbitrary detention, forced displacement, trafficking in persons, confiscation or destruction of private property, right to privacy, have the right to a comprehensive and effective remedy in accordance with international law.

As has been seen, the Draft Convention generally envisages that such 68 69 70 71 72 73 74

ibid, Art ibid, Art ibid, Art ibid, Art ibid, Art ibid, Art Bohm et

13(1)(5)(6). 14. 11. 15. 15(3). 16. al, above n 3.

Regulatory Initiatives at the International Level 25 remedies will be found in the national systems of the contracting parties, with the Oversight Committee ensuring this through state reports and, where applicable, by allowing individual petitions. It is arguable whether these together represent an ‘effective remedy’. While generous in its creation of a number of techniques and mechanisms of oversight and dispute settlement, the Draft Convention’s protection of the individual victim is still premised on the traditional paradigm of gaining the consent of states to an optional petition procedure at the international level, as a supplement to remedies that the victim should gain (if the Convention is in force for the state in question) before national courts and mechanisms. As it is, there is a recognition in the Draft Convention that a remedial mechanism is required at the international level, but it takes the form of a provision that requires states to ‘consider establishing an International Fund to be administered by the Secretary General to provide reparation to victims of offences under this Convention and/or assist in their rehabilitation’.75 This seems a long way from an effective remedial system, but it would at least be a start.

F. State Responsibility Being treaty based, the Draft Convention places the obligations and responsibilities for the acts of PMSCs largely on the shoulders of potential state parties. However, in an unusual but welcome move, recognising their objective international legal personality as well as the fact that they are increasingly using the services of PMSCs, international organisations would also be able to ratify the treaty and become bound by its provisions.76 Although earlier drafts did extend the obligations to PMSCs themselves, the current Draft would only apply to states and intergovernmental organisations.77 The lack of direct responsibility and accountability of PMSCs in the treaty is reflected in the fact that PMSCs cannot become parties to the treaty, although they ‘can communicate their support’.78 Essentially, it is the responsibility of state parties to ensure the liability of PMSCs for the commission of the offences identified under the convention and, further, that any legal persons held liable under national laws ‘are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including fines, economic sanctions, prohibi-

75

Draft Convention, above n 38, Art 28. ibid, Arts 40–42. 77 Report of the Working Group 2010, supra n 38, para 75, where the Working Group stated that the ‘key responsibility should lie with the State parties to the convention and the intergovernmental organizations that would adhere to the instrument’. 78 Draft Convention, above n 38, Art 41(2). 76

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tions of further employment, obligation to provide restitution and/or compensation of victims’.79 The emphasis on state responsibility in the Draft Convention is enhanced further in Article 4(1), which provides that ‘each State party bears responsibility for the military and security activities of PMSCs registered or operating in their jurisdiction, whether or not these entities are contracted by the State’. Thus host and home states seem to bear responsibility for PMSC activities within their jurisdiction, but the Draft Convention does not go into secondary levels of responsibility to consider whether the state should be responsible for wrongful acts themselves, or for failing to act diligently to prevent their commission. The Drafters are content to refer to the ILC’s Articles on State Responsibility of 2001 in the preamble and so could be said to have incorporated the secondary rules of responsibility (particularly those concerning attribution of conduct) into the Convention. On the issue of attribution, according to the ILC’s Articles of 2001, wrongful acts of private actors can be attributed to a state either when such actors are empowered by that state to ‘exercise elements of governmental authority’ or when they are ‘acting under the instructions of, or under the direction or control of, that State in carrying out the conduct’.80 Given that the Draft Convention seems to prohibit the former, providing that ‘no State party can delegate or outsource inherently State functions to PMSCs’,81 those states contracting out state functions in defiance of the ban would be directly responsible not only for violation of the prohibition but also for the wrongful conduct itself. Otherwise states would appear to be responsible for the wrongful acts of PMSCs when they are acting under the instructions, or direction or control, of the state. In these circumstances, unless they are also contracting states delegating governmental functions or instructing contractors, it is difficult to see how the host or home states can be held to be directly responsible for the wrongful acts of PMSCs. This does not mean that such states are free from responsibility, as they are still bound by a due diligence test that applies to the protection of all human rights within their jurisdictions.

V. DUE D I L I GEN C E OBLIGATION S OF STATES

Neither the Montreux Document nor the Draft Convention clarifies the principle of due diligence in international law, which underpins attempted regulation at both the international and national levels. Given 79

ibid, Art 20. ILC Articles on the Responsibility of States for Internationally Wrongful Acts 2001, Arts 5 and 8. 81 Draft Convention, above n 38, Art 4(3). 80

Regulatory Initiatives at the International Level 27 that, for any regulatory regime directed at states to work, it will be necessary to identify precisely when and how such states are responsible for the wrongdoings of PMSCs. Arguably, it is inadequate for the Draft Convention simply to provide that each state party is responsible for the military and security activities of PMSCs registered or operating in their jurisdiction.82 Admittedly, the Draft Convention’s provisions on licensing and regulation, as well as punishment, at the national level can be said to enable states to fulfil their due diligence obligations to ensure to the best of their abilities that private actors within their territory or jurisdiction are not violating human rights,83 but it is still necessary to unearth the conceptual basis under international law of those obligations. First, applying the well-known principle of international law identified by the International Court of Justice in the Corfu Channel Case in 1949,84 the home state in which the PMSC is based should be responsible for knowingly allowing its territory to be used for unlawful acts against or in other states. This principle has been clearly established in the jurisprudence.85 Thus, if the UK has information that one of the many PMSCs with headquarters in the UK has engaged, or is likely to engage, in conduct that will violate international law, then it has breached this obligation towards the state in which the violations have occurred, and the individuals who have been injured therein. Secondly, under the well-established principle established by the InterAmerican Court of Human Rights in the Velasquez Rodriguez case and in other human rights institutions,86 the host state where private actors operate has an obligation to exercise due diligence to protect anyone within its jurisdiction from human rights abuse, whether committed by state agents or by private actors. As the Court stated: an illegal act which violates human rights and which is . . . not directly imputable to a state (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but

82

ibid, Art 4(1). In Ruggie’s ‘Protect, Respect and Remedy Framework’, the ‘Protect’ element largely relates to the state’s duty to protect, while the ‘Respect’ element encapsulates principles of corporate social responsibility. The ‘Protect’ element falls short of the due diligence obligations of home and contracting states argued for in this section—see Ruggie, Draft Principles (2010), above n 12, principles 7 and 10. 84 The Corfu Channel Case (Merits), 1949 ICJ Rep 4, 22. 85 For a review and analysis see F Francioni, ‘The Role of the Home State in Ensuring Compliance with Human Rights by Private Military Contractors’ in F Francioni and N Ronzitti (eds), War by Contract: Human Rights, Humanitarian Law and Private Contractors (Oxford, Oxford University Press, 2011) 93, 104–09. 86 For a review and analysis see C Bakker, ‘Duties to Prevent, Investigate, and Redress Human Rights Violations by Private Military and Security Companies: The Role of the Host State’ in Francioni and Ronzitti (eds), ibid, 130. 83

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Admittedly, many host states will be in the post-conflict stage and weak, but they must not turn a blind eye to human rights abuses by private actors within their territory, and therefore must try to bring the perpetrators to justice. Thirdly, in relation to those states contracting with PMSCs, in addition to directly imputable acts discussed above, and applying an opinion of the Committee on Economic, Social and Cultural Rights, such states arguably have a duty to ‘prevent third parties from violating’ rights ‘in other countries, if they are able to influence these parties by way of legal or political means’.88 Although this was stated in a General Comment on the right to health, there is no reason why this should not be applicable to other human rights abuses committed by private actors. Furthermore, there is plenty of jurisprudence from the various international and regional human rights systems upon which such due diligence obligations can be extended to contractors.89 If a state is going to contract with a PMSC to help its troops in a foreign country, it should be prepared to ensure to the best of its ability that those contractors do not commit human rights abuses in that country. The Draft Convention goes some way towards this when it requires that state parties ensure that any contracted PMSCs are ‘trained in and respect international human rights and international humanitarian law’.90 It is argued here that due diligence obligations are necessary particularly when the contracting state does not itself assert effective national jurisdiction over such actors, beyond the enforcement of its contractual rights. This obligation would be strengthened further when the contracting state knows that the host state has a weak judicial system and enforcement mechanisms. Given that it is the contracting state that is responsible for the presence of PMSCs on the territory of another state, it would be incongruous for it not to have due diligence obligations when both the home and host state do. It might be argued further that, before it contracts with a PMSC for services to be rendered in the host state, the contracting state has a duty to ensure that the host state has satisfactory laws, courts and enforcement mechanisms for holding PMSCs to 87

Velasquez Rodriguez, 1988 Ser, C No 4 (1988), para 172. ‘General Comment No 14: The Right to the Highest Attainable Standard of Health’, UN Doc E/C.12/2000/4 (2000), para 39. See J Nolan, ‘The Nexus Between Human Rights and Business: Defining the Sphere of Corporate Responsibility’ in J Farrall and K Rubenstein (eds), Sanctions, Accountability and Governance in a Globalised World (Cambridge, Cambridge University Press, 2009) 217, 220. 89 For a review and analysis see C Hoppe, ‘Positive Human Rights Obligations of the Hiring State in Connection with the Provision of Coercive Services by a Private Military or Security Company’ in Francioni and Ronzitti (eds), above n 85, 111. 90 Draft Convention, above n 38, Art 4(2). 88

Regulatory Initiatives at the International Level 29 account for human rights abuse if it is not prepared to assert jurisdiction over them itself. If these guarantees are not present, then the state should not contract with the PMSC in question. However, while it is possible with varying degrees of certainty to identify these obligations on home, host and contracting states, neither the Montreux process nor the Draft Convention makes a great deal of progress to implement them. Indeed, the Draft Convention’s mention of ‘due diligence’ is in relation to state parties ensuring that PMSCs ‘apply due diligence to ensure that their activities do not contribute directly or indirectly to violations of human rights and international humanitarian law’.91 While there is increasing recognition in soft law instruments (for example, in the Code of Conduct discussed in section III) that corporate actors have to act with due diligence to respect human rights,92 due diligence obligations at the international level are binding on states. However, the principles of state responsibility are notoriously abstract and do not concern themselves with practical means and methods of implementation and enforcement. It is one thing to say that states are responsible for wrongful acts committed by them, or responsible in certain circumstances for failing to prevent the wrongful acts of private actors; it is altogether far more difficult to make such liability stick at the international level. However, as has been mentioned, both the Draft Convention and the Montreux Document contain clauses that in effect recognise due diligence obligations of states.93 Whether this represents a possible bridge between the Montreux process and that of the Draft Convention will be reflected upon in the conclusion.

V I . C ON C LUSION

Given its relatively robust Oversight Committee, the Draft Convention would constitute a reasonable basis on which to regulate the growing use of PMSCs in conflict and post-conflict zones around the world. Structurally, the Draft Convention reflects the weaknesses of international law in not addressing PMSCs themselves. It attaches obligations to those states contracting with PMSCs or having them on their territories or within their jurisdiction (either as home states or host states). Furthermore, it fails to fully reflect the growing recognition of the need to have credible access to justice for individual victims—in this case, victims of human rights violations at the hands of PMSCs—reflecting a traditional approach to the position of individuals in the international legal order,

91 92 93

ibid, Art 7(2). Ruggie, above n 4. Montreux Document, above n 6, Part I, paras 4, 10 and 15.

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although its optional complaint system is to be welcomed, as is the suggested creation of a compensation fund. The real problem, though, lies in the Draft Convention’s chances of success when faced with the Montreux Document and ongoing processes, especially the International Code of Conduct. There are some real incompatibilities between their substantive provisions (especially as regards the disagreement as to what can be outsourced to PMSCs) and the form of the two international instruments. There is a danger that international hard (treaty) law, if adopted, will attract a different clientele of states than the soft law of the Montreux process. States connected to the PMSC industry are more likely to stick with and entrench the Montreux process, and those opposed to PMSCs as a modern form of mercenarism are more likely to support the Draft Convention process. It may be possible to bridge the divide if the Montreux process develops its focus on promulgating codes, standards and mechanisms for the industry itself, in effect by gaining the agreement of companies to due diligence standards, leaving the identification and development of state obligations and responsibilities, including those of due diligence, to the Draft Convention process. However, it is too early to predict whether such synergy between the two international processes will develop.

2 The Regulatory Context of Private Military and Security Contractors at the EU Level GUIDO DEN DEKKER

I . I NTRODUC TION

W

ITHIN THE EU Member States, there are, almost without exception, domestic laws and regulations concerning private security services. These include registration and licensing for relevant companies, minimum standards for personnel selection and training, prohibitions and regulation of the use of firearms, and so on.1 At the EU level there are as yet no specific laws or regulations with respect to the private military and security industry, as can be concluded from several studies.2 This paper examines EU competences after ‘Lisbon’ in the areas of the Internal Market and the Common Foreign and Security Policy (CFSP) in connection with the potential regulation of private military and security contractors (PMSCs) at the EU level. In addition, an analysis is made of existing regulations and case law at the EU level which may have (possible) implications for PMSCs and their services. This paper also touches on the EU position with respect to international humanitarian law (IHL) and the regulatory context of EU crisis management operations. 1 See the chapters in Part II of this volume below; in addition, see Confederation of European Security Services (CoESS), ‘Panoramic Overview of Private Security Industry in the 25 Member States of the European Union’ (2004). 2 See, eg A Bailes and C Holmqvist, The Increasing Role of Private Military and Security Companies, European Union DG External Policies Study (October 2007); C Holmqvist, ‘Private Security Companies, the case for regulation’, SIPRI policy paper no 9 (January 2005); E Krahmann, ‘Regulating Military and Security Services in the European Union’ in M Caparini and A Brayden (eds), Private Actors and Security Governance (Geneva, DCAF, 2006) 189; J Hagmann and M Kartas, ‘International Organizations and the Governance of Private Security’ ibid 285; H Born, M Caparini and E Cole, ‘Regulating private security in Europe: status and prospects’, DCAF Policy Paper no 20 (2007) 7–8.

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Guido den Dekker I I . T H E REGULATION OF P MSC S AN D EU C OMP ETEN C ES

A. The Institutional Setting The EU role in regulating the PMS industry for better compliance with human rights law and IHL can be deemed unsatisfactory at present, in the sense that, first of all, the export of—particularly armed—PMS services, from the EU to (conflict areas in) third states, has not been regulated at the EU level. Furthermore, the offering and providing of PMS services within the Internal Market have not been harmonised beyond the primary EU law (the Treaties). Since, at the national level, domestic private security services are in general comprehensively regulated, the main concern to be addressed at the EU level would be how to control (particularly armed) private contractors operating in third states and working from (companies established in) an EU Member State and to prevent them from violating human rights law and/or IHL in the (conflict) areas where they operate. Any regulation at the EU level of the export of security (and military) services by EU-based PMSCs to (post-)armed conflict situations in third states would, according to its substance, be a matter for the Council under the CFSP. Within the CFSP, several instruments have already been adopted regarding the export of defence-related goods and technologies. However, the supply of services is generally a concern of the Internal Market and third-country relationships of the EU are often linked with development cooperation, as well as economic, financial and technical cooperation for the general purposes of developing and consolidating democracy and the rule of law, and respect for human rights and fundamental freedoms. These policy fields, which are largely ‘governed’ by the Commission, not the Council, may come into play if regulation of PMSCs outside the EU is contemplated at the EU level. Moreover, regulations concerning export of certain services to third countries may have effects within the Internal Market, and vice versa. The Commission has been carefully guarding the scope of its competence.3 In the ECOWAS case the decision of the Council implementing a Joint Action, whereby a financial contribution of the EU was granted to ECOWAS to assist this organisation in combating the accumulation 3 Or perhaps has been stretching its field of competence; cf Case C-403/05 EP v Commission, judgment of 23 October 2007, where the European Parliament successfully challenged the competence of the Commission to take implementing measures for border patrols in the Philippines on the basis of a Regulation on development aid (financial, technical and economical cooperation with developing countries in Latin-America and Asia), whereas the measures had as their aim the fight against terrorism and transnational criminal networks.

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and spread of small arms and light weapons in Africa, was successfully challenged by the Commission as being in the exclusive realm of Community powers because it had aspects of European development policy (and did not exclusively serve the CFSP perspective of preserving peace and strengthening international security). According to the Court of Justice of the EU, it is not even necessary that the measure having legal effects adopted by the Union in any way prevents or limits the exercise of Community powers, but it is sufficient that the measure could have been adopted by the Community.4 The outcome of the ECOWAS case seems to have been determined primarily by the Court’s interpretation of the old Article 47 TEU, which provided that nothing in the TEU (Treaty on European Union) shall affect the Treaty establishing the European Community (TEC). The new Article 40 TEU is more balanced, in that implementation of CFSP should respect EU powers laid down in the TFEU (Treaty on the Functioning of the European Union), but also the implementation of TFEU powers should respect CFSP powers. It still seems that the above-mentioned principle has not lost its relevance for ‘post-Lisbon’ CFSP regulatory measures at the EU level with possible implications for the Internal Market. After all, the main thrust of the process of European integration is still economical and ‘inward-looking’. In the relationship between the EU and the Member States, a similar concept may be inferred from the fundamental principles that the functioning of the Internal Market— in particular, competition—must not be affected by measures which a Member State may be called upon to take in exceptional circumstances, such as serious internal disturbances, the threat or outbreak of war, or actions for the maintenance of peace and international security.5 It would seem that this principle also applies if the Member States act for the purpose of preserving peace and strengthening international security in the framework of the CFSP.

B. The CFSP after ‘Lisbon’ On 1 December 2009, the Lisbon Treaty amending the Treaty on European Union and the Treaty establishing the European Community entered into force.6 With this Treaty entering into force, the EU has officially lost its well-known pillar structure. The European Community has disappeared and the EU has remained, as (the single) international legal 4

See Case C-91/05 Commission v Council, judgment of 20 May 2008, paras 60–61. See Arts 346–48 TFEU, which are virtually identical to Arts 296–98 TEC (the only change being that the term ‘internal’ market replaced the term ‘common’ market). 6 See Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, [2007] OJ C306/1. 5

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person. The institutional structure of the EU, however, is still found in two separate treaties. The TEU comprises the general principles and general institutional provisions of the Union as a whole, including general provisions on the Union’s external actions. The TFEU brings together the policy areas of the Internal Market and the Co-operation in Justice and Home Affairs.7 As such, the CFSP remains separate as the only policy area outside the TFEU. In the TEU there are both general and specific provisions on the CFSP, including on the Common Security and Defence Policy (CSDP).8 The CSDP—in essence, a renaming of the European Security and Defence Policy (ESDP)9—is the part of the CFSP that is meant to provide the Union with the operational capacity drawing on civilian and military assets of the Member States. The CFSP still bears many marks of ‘intergovernmental’ rather than ‘integrated’ policy, also with the Treaty of Lisbon in force. The main rule, in Article 24(2) TEU, is that the CFSP shall be defined and implemented by the European Council and the Council acting unanimously. However, several institutional provisions have been introduced to bridge the gap between CFSP and the other policy areas in order to ensure consistency and enhanced effectiveness in the external operations of the EU.10 Notably, the new High Representative of the Union for Foreign Affairs and Security Policy, who is also one of the vice-presidents of the European Commission and the Head of the European Defence Agency, is responsible for putting into effect the CFSP, together with the Member States (Article 24(1) TEU). The High Representative in respect of the area of CFSP, and the European Commission for other areas of external action, may submit joint proposals to the Council in the field of the strategic interests and objectives of the Union (Article 22(2) TEU). The High Representative shall submit recommendations to the Council when it is envisaged that the Union shall conclude an agreement with one or more third countries or international organisations which relates exclusively or principally to the CFSP (Article 218(3) TFEU). Any Member State, next to the High Representative or the High Representative with the Commission’s support, may refer any question relating to the CFSP to the Council and may submit to it initiatives or proposals as appropriate (Article 30(1) TEU). The High Representative can submit proposals 7 The consolidated version of the TEU and of the TFEU can be found in [2008] OJ C115/1. 8 See Arts 42–46 TEU (new); the CSDP eventually may develop into a common defence. 9 See S Biscop, ‘From ESDP to CSDP: Time for some Strategy’ La revue Géopolitique online, 16 January 2010, available at www.diploweb.com/spip.php?page=imprimer&id_ article=551. 10 Whether the innovations will significantly improve the decision making and leadership on issues of security and defence policy and, consequently, the effectiveness of the Union as an international crisis manager can be doubted; see S Blockmans and R Wessel, ‘The European Union and Crisis Management: Will the Lisbon Treaty Make the EU More Effective?’ (2009) 14 Journal of Conflict and Security Law 265.

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for decisions by the Council relating to the CSDP, including the possible use of both national resources and Union instruments, together with the Commission where appropriate (Article 42(4) TEU).

C. Regulatory Instruments after ‘Lisbon’ The main regulatory instruments with binding effect within the CFSP are the same in substance as before the Treaty of Lisbon, albeit that the designations ‘joint action’ and ‘common position’ have disappeared. Reference is now exclusively to ‘decisions’ (Article 25 TEU).11 Such decisions may define (i) actions to be undertaken by the EU, (ii) positions to be taken by the EU and/or (iii) implementation arrangements for these actions or positions. The decisions can take the specific form of (implementation of) operational action for particular objectives if the international situation so requires (Article 28 TEU; reminiscent of the old ‘joint action’) or they can define the Union’s approach to a particular matter of a geographical or thematic nature (Article 29 TEU, reminiscent of the old ‘common position’). The actions and positions as laid down in those decisions are binding on the Member States in their positions and policies. It is made explicit that within the CFSP the adoption of legislative acts is not permitted (Article 24(2), Article 31(1) TEU). The notion of ‘legislative acts’ of the EU refers in essence to Regulations and Directives.12 A Regulation has general application, and is binding in its entirety and directly applicable in all Member States; a Directive is binding as to the result to be achieved upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods (See Article 288 TFEU). There is no formal hierarchy in secondary Union law. A Regulation is special—it is the most ‘intrusive’ regulatory instrument and as such becomes part of the internal legal order of the Member States—and has no counterpart in the CFSP. When looking at the effects, the difference between a Directive and a CFSP decision can be small. Both these instruments can produce similar results, since national legislation of the Member States can be the objective of a Directive and also of a CFSP decision on operational actions, or on particular geographical or thematic

11 The general policy guidelines and strategic lines for the CFSP are defined by the European Council and elaborated and executed by the Council by way of decisions (Arts 25 and 26 TEU). 12 It can also refer to the (individual) Decisions that can be taken under Art 288(3) TFEU and which shall be binding in their entirety to the addressee(s). These are other decisions than the decisions of Art 25 TEU.

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matters.13 However, Directives would generally be used for ‘internal’ measures, whereas CFSP decisions generally relate to ‘external’ matters.

D. CFSP and EU Regulatory Competence The secondary law of the Union can only be adopted to exercise the Union’s competence on the basis of the Treaties—the primary law of the Union. It must remain within the boundaries of that primary law, and in addition must have the correct legal basis. Competences not conferred upon the Union in the Treaties remain with the Member States.14 In some areas, such as competition rules for the Internal Market, the Union has exclusive competence (Article 3 TFEU), which means that only the Union may legislate and adopt legally binding acts in that area (Article 21 TEU).15 In other areas, such as civil protection, the Union has only limited competence to carry out actions to support, coordinate or supplement the actions of the Member States at the European level (Article 6 TFEU). In yet other areas, there is a shared competence between the EU and the Member States (Article 4 TFEU). When a competence is shared with the Member States in a specific area, both the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its own. The Member States shall also exercise their competence when the Union has decided to cease exercising its own (Article 2(2) TFEU). As regards the delimitation of the Union competences between the implementation of the CFSP on the one hand and the areas of exclusive or additional Union competence as laid down in the TFEU on the other, as mentioned earlier, Article 40 TEU is now more balanced, in that not only shall implementation of CFSP respect Union powers laid down in the TFEU, but implementation of TFEU policies shall respect CFSP powers as well. It could be said that, in order to be workable, the wording of Article 40 TEU no longer prohibits a combination of an Internal Market and a CFSP legal basis for a regulatory measure at the EU level, but this is by no means certain. The division of competence 13 See, eg Council Joint Action 2000/401/CFSP to control technical assistance to certain military end users; Council Common Position 2003/468/CFSP on the control of arms brokering. Similarly, measures taken by the Council pursuant to Art 215 TFEU (former Art 301 TEC) for the interruption or reduction of economic and financial relations with one or more third countries could lead to national (implementation) legislation. 14 See Art 5(2) TEU and see also Declaration no 18 of the Final Act to the Lisbon Treaty. The general international law principle that the competences of international organizations are determined by attribution (by the Member States) has been laid down explicitly as the ‘principle of conferral’ in both the TEU (Art 5) and the TFEU (Art 7). 15 The Member States are able to do so themselves only if so empowered by the Union or for the implementation of Union acts.

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between the areas as expressed in Article 40 TEU is one of the very few instances where the Court of Justice of the EU has jurisdiction in the field of CFSP and decision making in that area (see Article 275 TFEU). A new ECOWAS type of case is not impossible. In any event, the new institutional provisions in the TEU (and the TFEU) should make it easier for the Commission, the High Representative and the Council to coordinate the initiation of and decision on policy issues in the field of CFSP, thereby taking account of Internal Market requirements and the legislative acts pertaining to it which (indirectly) may influence security and defence matters at the EU level.

E. Implications for the Regulation of PMS Services at the EU Level The question can be raised as to what extent the institutional changes after ‘Lisbon’ may have implications for the possibilities of regulating PMS services at the EU level. The short answer is that there are few such implications, if any. The (strengthened) CFSP is still largely separate from the other EU policy areas and the competences of the Commission and the Council, and the available binding regulatory instruments have not changed in substance. Nevertheless, it is worthwhile to see whether the strengthened CFSP has possible implications for the division of competences between the Union and the Member States when it comes to regulating the PMS sector. If regulatory measures for the PMS sector (services) are directly linked to the implementation of the CFSP, for example if it concerns establishing guidelines for the hiring of PMS contractors as part of EU CSDP missions (Article 43 TEU), there can be no doubt that the EU is competent to take the decisions as provided in the CFSP. The same can likely be said with respect to the support for human rights and the maintenance of peace and international security, which may be influenced by an EU-based PMS sector operating in conflict areas outside the EU. Indeed, the Union’s competence in matters of foreign and security policy covers all areas of foreign policy and all questions relating to the Union’s security (Article 24(1) TEU).16 It is also made explicit in the TFEU that the Union shall have competence, in accordance with the provisions of the TEU, to define and implement the CFSP (Article 2(4) TFEU). Furthermore, the regulation of EU-based PMS services, even if the PMS companies would be acting primarily outside the EU, can hardly avoid touching on 16 The Union’s objectives for external action, which also guide it in the context of CFSP (Art 23 TEU), are sufficiently wide for that purpose, as they include measures to safeguard the Union’s security, its independence and integrity, to consolidate and support democracy, the rule of law, human rights and the principles of international law, and to preserve peace, prevent conflicts and strengthen international security (Art 21 TEU).

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aspects of Internal Market functioning (such as non-discrimination, the freedom of movement to provide services and the freedom of establishment within the EU).17 Article 4 TFEU mentions inter alia the Internal Market in the non-exhaustive list of areas of shared competence. Since regulation of the PMS sector is not necessarily or completely covered by policy areas for which an exclusive competence of the Union exists, it can be concluded that a general regulation of the PMS sector within the EU is a topic for which there is a shared competence between the EU and the Member States in principle. Depending on the precise aim and content of the contemplated regulation, the division of competences may be different—for example, if the regulation is primarily meant to provide competition rules for the offering or providing of PMS services within the Internal Market, it means an area is entered where the Union has exclusive competence. If the EU is competent in principle but not exclusively competent, the principles guiding the EU as to which level or to what extent it shall act are those of subsidiarity and proportionality (Article 5 TEU and Protocol No 2 to the Lisbon Treaty). Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at a central level or at a regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at the Union level. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply these principles, as laid down in Protocol No 2 on the application of the principles of subsidiarity and proportionality. The acts with which Protocol No 2 is concerned are essentially (draft) legislative acts. Initiators of legislative proposals of the EU (ie the Commission, groups of states or others) shall justify and state clearly why any draft legislative acts comply with subsidiarity and proportionality, which shall be subject to the review of national parliaments.18 The regulation of export of EU-based PMS services to conflict areas abroad can have an impact on human rights law (and IHL) compliance in those areas, and possibly also on EU crisis management, if the PMS sector becomes involved in those operations. In addition, there are likely to be implications of regulation of the PMS sector for (the competition within) the Internal Market, which is in favour of a combined effort. Furthermore, if regulation is left to the individual Member States, there 17

Witness the case law of the Court of Justice of the EU; see below para III.A. See Protocol no 2, Art 4. In Art 8, it is stipulated that the correction mechanism of Art 263 TFEU (ie action before the Court of Justice of the EU on the grounds of infringement of the principle of subsidiarity by a legislative act) shall be available. 18

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is a clear risk that PMSCs may decide to relocate to a Member State with a lenient regulatory regime.19 In sum, it would seem that there are relevant grounds to address the issue of PMS sector regulation at the Union level (subsidiarity). Depending on the precise aim and content of the contemplated regulation, the objective of harmonisation could call for a Regulation, unless the same result can be achieved, for example, by a Directive as regards the Internal Market and/or a CFSP decision for operational action or on a specific matter (proportionality).

I I I . E X I S T I NG REGULATION OF SEC URITY S E RV I C E S AT THE EU LEV EL

A. Private Security Services: The Case Law of the Court of Justice Private security services are excluded from the general Services Directive, which applies to services supplied by providers established in a Member State.20 On the basis of this Directive, the Commission assessed the possibility of presenting proposals for additional harmonisation instruments for the Internal Market on private security services and transport of cash and valuables. It reached the conclusion that such proposals are not necessary at this stage, but that it will continue ensuring the free movement of private security services on the basis of the direct application of the TFEU, in particular Articles 49 and 56 on the freedom of establishment and the freedom to provide services.21 In the absence of harmonization, the provisions of the TFEU (and the TEC before it) that are meant to ensure freedom of movement still fully apply to the private security sector. In a series of judgments, the Court of Justice of the EU has ruled that the provision of private security services within the Internal Market counts as an ‘economic sector’ and as such is subject to the same rules as other supply of services within the Internal Market, with the Commission having the competence to bring cases before the Court to correct national legislation regarding private security services through which the Member State is violating EU legislation.22 The Member States in the cases concerned tried to invoke all 19 In the past, PMSCs confronted with regulatory constraints by the home state have relocated to another state and resumed activities under a different name, eg Executive Outcomes. 20 See Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the Internal Market, [2006] OJ L376/36, Art 2(k). 21 This is based on (informal) communications from the European Commission to the PRIV-WAR project, 15 April 2011. 22 See Case C-114/97, Commission v Spain, judgment of 29 October 1998; Case C-355/98, Commission v Belgium, judgment of 9 March 2000; Case C-283/99, Commission v Italy, judgment of 31 May 2001; Case C-171/02, Commission v Portugal, judgment of 29 April 2004; Case C-189/03, Commission v Netherlands, judgment of 5 May 2003; Case C-514/03,

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possible justifications for exemptions from the freedoms of the Internal Market provided in the TEC, in particular the exception relating to the exercise of official authority, but the Court consistently rejected those arguments. The private security services concerned relate to guarding and protecting movable and immovable property, protecting persons, guarding money and valuables transports, private alarm networks, and industrial security. The following rules and principles can be derived from (one or more of) the judgments of the Court: • Nationality requirements in national laws regarding private security undertakings and private security workers are contrary to the freedom of movement of persons, including access to employment for foreign EU nationals to a national economic sector, the freedom of establishment and the freedom to provide services within the Internal Market. • Nationality requirements affecting the freedom of establishment cannot be justified on the basis of the exception of the exercise of official authority: the purpose of the private security undertakings and the security staff is to carry out surveillance and protection tasks on the basis of relations governed by private law. Exercise of that activity does not mean that they are vested with powers of constraint. Instead, they are merely making a contribution to the maintenance of public security, which any individual may be called upon to do. This does not constitute the ‘exercise of official authority’. In addition, as regards the freedom of movement for workers (ie not self-employed persons but employees), for which an exception has been recognised only with respect to ‘employment in the public service’, it is clear that such an exception cannot apply as it does not encompass employment by a private natural or legal person, whatever the duties of the employee. Therefore, even sworn private security guards (such as in Italy) do not form part of the public service and, even stronger, the requirement that private security guards before they can do their work as a security guard must swear an oath of allegiance to the state is prohibited. Other domestic law requirements that may hamper freedom of movement are prohibited as well: • The requirement that the provider of the private security services must be constituted as a legal person (in the Member State of establishment) is prohibited, since that rules out the possibility that natural persons provide transfrontier services in the Member State. The same applies to the requirement to employ a minimum or maximum number of staff, which is restrictive in character as well. Commission v Spain, judgment of 26 January 2006; Case C-465/05, Commission v Italy, judgment of 13 December 2007.

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• The fixing of prices for private security services with approval of a domestic authority within a certain margin is prohibited (as, according to the Court, it infringes on the freedom to set fees and hinders effective competition, as it is likely to prevent operators from other Member States from incorporating in their fees certain costs that domestic operators do not have to bear). Similarly, minimum share capital requirements for the private security undertaking (in order to protect creditors) or requirements to lodge a security deposit with a domestic body (to cover potential liabilities) without taking account of security deposited in the Member State of origin also constitute a prohibited restriction of the freedom to provide services and the freedom of establishment, considering that less intrusive measures are possible, such as setting up a guarantee or taking out an insurance contract. • The exception allowing the barring of access to a certain occupation for reasons of public policy, public security or public health (Articles 39(3) and 46(1) TEC) does not apply generally to the private security sector. Those exceptions are meant to allow Member States to refuse access to their territory of persons whose access or residence would by itself constitute a danger for public policy, public security or public health. • The residence condition, ie the requirement that the security undertaking must have its place of business in the Member State in which it operates, is contrary to the freedom to provide services and cannot be justified by reference to public policy and public security. This is the case even if the national measures only apply to economic operators from other Member States that offer their services in the Member State for a period of more than one year, as these measures are still, in principle, capable of restricting the freedom to provide services. • The related personal residence condition, viz that the directors and managers of security undertakings must have their residence in the territory of the Member State in which they are established, cannot be justified in order to ensure public security. That justification requires that there is a genuine and sufficiently serious threat affecting one of the fundamental interests of society. In addition, potential problems with monitoring of undertakings and compliance with the national laws are not related to the place of residence of directors or managers. They can be carried out on any undertaking established in a Member State, whatever the place of residence of its directors. Moreover, the payment of any penalty may be secured by means of a guarantee to be provided in advance. Finally, Member States must take into account the obligations which private security undertakings and workers have to fulfil according to the domestic laws of their Member State of establishment:

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• Member States may not require as a general rule a prior authorisation, permit or approval (or charge fees for such permit) for undertakings, their managers or workers before these undertakings and workers are allowed to provide their services in the Member State and without taking into account domestic law obligations. • In line with the foregoing, the requirement for every security staff member of a security firm or internal security service to have an identification card to be issued by the authorities of the Member State where the services are provided and without taking into account checks to which cross-frontier providers of services are already subject in their Member State of origin is likewise a prohibited restriction of the freedom to provide services, as well as a disproportionate measure, considering that every provider of a service who goes to another Member State must be in possession of an identity card or passport anyway. • Members of staff may also not be required to have a diploma issued by a domestic educational organisation of the Member State where the services are provided; qualifications obtained in another Member State must be taken into account. In sum, according to the Court, within the Internal Market, nationality requirements (of undertakings or workers) are prohibited and no domestic licences, permits or qualifications for undertakings or individual workers (self-employed or employees) can be required without taking into account the qualifications obtained in the Member State of origin. This again illustrates the current absence of harmonised regulatory measures at the EU level with regard to private security services.23

B. Security-related Export Controls At the EU level, two regulatory frameworks of security-related export controls can be found: first, the dual-use items and technology export control; and second, the export control of military equipment. In the field of security-related export controls, Council Regulation 428/2009 for the control of exports, brokering and transit of dual-use items has replaced the earlier regulations.24 It has introduced controls 23 cf Case C-514/03, Commission v Spain, above n 22 para 22 (a case on national VAT exemption for private security services): “Private security services are not, to date, harmonised at Community level. However, although it is true that, in such circumstances, Member States remain, in principle, competent to define the conditions for the pursuit of the activities in that sector, they must, when exercising their powers in this area, respect the basic freedoms guaranteed by the Treaty”. 24 Council Regulation (EC) 428/2009 setting up a Community regime for the control of exports, brokering, and transit of dual-use items (recast), [2009] OJ L134/1. The changes implemented in the control entries are a result of the review of the Wassenaar Arrangement

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on brokering activities and transit with regard to dual-use items that can be used both for civilian purposes and for chemical, biological or nuclear weapons and other nuclear explosive devices, and is part of the EU strategy against the proliferation of weapons of mass destruction. The added control mechanisms largely correspond to the mechanism for the control of arms brokering with regard to items on the EU Common List of military equipment.25 The controls that must be prescribed by the Member States in their national legislation apply to technical assistance that is provided from outside the EU by persons established in the EU if it is intended, or the provider is aware that it is intended, for use in connection with chemical, biological or nuclear weapons or other nuclear explosive devices, or missiles capable of delivering such weapons.26 The Regulation therefore, like those that it has replaced, does not cover the (types of) services that are commonly offered by PMSCs. Members States must also consider the application of the same controls to technical assistance related to other military end-uses (that is, other than components of weapons of mass destruction or technology) if provided in countries or destinations that are subject to legally binding EU, OSCE (Organization for Security and Co-operation in Europe) or UN arms embargoes.27 However, it goes without saying that such countryspecific arms embargoes are not a means of (indirect) regulation of PMS services at the EU level. The control of export of military technology and equipment from the EU is subject to Council Common Position 2008/944/CFSP defining common rules,28 which has effectively replaced the EU Code of Conduct on Arms Exports of 1998. As such, the voluntary Code of Conduct has been replaced by a binding arrangement, indicating that common foreign policy goals must not be sacrificed to national export interests. Like under the Code, the Common Position is meant to ensure that the Member States shall control the export of technology and equipment on the Common Military List of the EU29 through their national legislation, thereby using national military technology and equipment lists for which the EU Common Military List shall be a reference point (Article 12). Like the Code before it, the Common Military List does not relate to military or security services (only some technical services connected with Dual Use Lists during 2008, Missile Technology Control Regime Technical Annexes during 2008, and Australia Group Control Lists during 2008. 25

See Council Common Position 2003/468/CFSP. Council Joint Action 2000/401/CFSP concerning the control of technical assistance related to certain military end-uses, [2000] OJ L159/216, Art 2. 27 ibid, Art 3. 28 Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment, [2008] OJ L335/99. 29 The Common Military List of the European Union is adopted annually. See, eg Council Notice of 15 February 2010, [2010] OJ C69/19. 26

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certain items on the Common Military List of the EU are covered). Like under the Code, the EU Member States shall use their best endeavours to encourage third states which export military technology or equipment to apply the criteria of the Common Position (Article 11).30 Thus, its scope is limited to the (territories of the) EU Member States.31 The control of arms brokering at the EU level seeks to extend beyond the EU’s territory. It applies only to equipment, not to services. Arms brokering has been defined as the negotiating and arranging of transactions in, or the buying, selling or arranging of the transfer of, items on the EU Common List of military equipment from a third country to any other third country in order to avoid circumvention of UN, EU or OSCE embargoes on arms export or of the criteria set out in the Code of Conduct.32 In this context, the Member States not only undertake to control brokering activities taking place within their territory. but are also ‘encouraged’ to consider controlling brokering activities outside of their territory carried out by brokers of their nationality resident or established in their territory. This system of controlling arms brokering in the state of residence or establishment includes the requirement to obtain a licence or written authorisation for brokering activities (assessed against the provisions of the Code of Conduct), and may also include the requirement of a written authorisation to act as arms broker and the establishment of a register of arms brokers, as well as an exchange of information on brokering activities among Member States and third states, and adequate national enforcement measures. Reportedly, Finland, Hungary and Slovakia have set a precedent for the extraneous application of national regulations concerning arms brokering to the foreign operations of their national companies or citizens, but most EU Member States are reluctant to follow this course, mainly because they do not have the resources to monitor compliance with national standards abroad.33 As regards military equipment and third states, the Council has also adopted a Joint Action to help combat the destabilising accumulation and spread of small arms and light weapons (and their ammunition) in third countries, in particular where this may help to prevent armed conflict 30 See in this respect also Council decision 2009/1012/CFSP of 22 December 2009 on support for EU activities in order to promote the control of arms exports and the principles and criteria of Common Position 2008/944/CFSP among third countries, [2009] OJ L348/16. 31 There is a small complementary programme to organise seminars to assist certain third countries (in the Western Balkans, North Africa and Eastern Europe) in creating legislation in order to implement norms similar to the Code of Conduct; see Council Joint Action 2008/230/CFSP, [2008] OJ L75/81. 32 See Council Common Position 2003/468/CFSP on the control of arms brokering, [2003] OJ L156/79 and Directive 2008/51/EC on control of the acquisition and possession of weapons [2008] OJ L179/5; see also the User’s Guide to the EU Code of Conduct on Arms Exports, 7486/08 (29 February 2008). 33 See E Krahmann, ‘Regulating Military and Security Services in the European Union’ in Caparini and Brayden, above n 2, 203.

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or in post-conflict situations.34 This Joint Action relates to financial and technical assistance of the EU and does not regulate—or contain obligations to regulate—goods or services. In sum, the security-related export control regulations at the EU level are equipment-related and do not apply to the services (typically) provided by PMSCs.

I V. P UB L I C P R OC UREMEN T REGULATION S AND T H E DEFEN C E IN DUSTRY

A. Defence Procurement Inside the Internal Market According to existing EU law, defence contracts fall under the rules of the Internal Market. Directive 2004/18/EC on the procurement of goods, works and services expressly applies to public contracts ‘awarded by contracting authorities in the field of defence, subject to Article 296 [TEC]’.35 In general, this clause confirms that, as with any public procurement, the award of contracts in the defence industry concluded in or on behalf of a Member State, regional or local authorities and other bodies governed by public law entities is subject to the principles of the Internal Market, in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services, and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. For public contracts, including supply and services contracts, above a certain value,36 the Directive sets provisions of Community coordination of national procedures based on these principles for the award of such contracts so as to ensure the effectiveness of these principles and to guarantee the opening up of public procurement to competition. The services covered by the Directive (listed in its Annex II) include air transport of passengers and freight, telecommunication and computer services, investigation and security services (this latter term is not further defined, but clearly the regular types of domestic security services are meant), and armored car transport services. 34 See Council Joint Action 2002/589/CFSP, [2002] OJ L191/1. It was this Joint Action the Commission sought to nullify in the Ecowas case (to no avail; only the implementing decision of the Council was nullified), which indicates that if the third countries concerned can be involved in EC development policy, Council action may give rise to questions of competence. 35 See Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, Art 10. 36 See Art 7 of the Directive and Annex V to it.

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B. Exemptions for Defence and Non-military State Security Article 346 TFEU (296 TEC) provides for a possible exemption of the Internal Market rules for the Member States in respect of (the award of) contracts connected with the production of and trade in arms, ammunition and war material. In respect of those products, which are intended for specifically military purposes, the Member States can take measures they consider necessary for the protection of their ‘essential security interests’. The products, which were identified by the (then-EEC) Council as early as 1958, include broadly described categories of typically military equipment, ranging from portable firearms and machine guns to rocket launchers, tanks, warships and aircraft, as well as munitions.37 According to the Court, any derogation from the TEC based on public safety considerations, including Article 296 TEC, deals with exceptional and clearly defined cases which, because of their limited character, do not lend themselves to wide interpretation.38 Furthermore, the Court has ruled that Article 296(1)(b) TEC is not intended to apply to activities relating to products other than the military products identified on the EC Council list and that only procurement of equipment which is designed, developed and produced for specifically military purposes can be exempted from Community rules on the basis of that Article.39 In an Interpretative Communication of 2006, the Commission confirmed the restrictive view on the application of Article 296: the TEC contains strict conditions for the use of this derogation to prevent possible misuse and to ensure that the derogation remains an exception limited to cases where Member States have no other choice than to protect their security interests nationally. This means that, even if the products are included in the list, exemption from the EU procurement rules is still only warranted on a case-by-case basis if necessary for the protection of essential security interests.40 With respect to non-military state security purposes, Directive 2004/18/EC provides an exception of non-applicability for secret

37 See EEC Council, ‘Decision of 31 March 1958 Drawing up a List of Products to which Art 223(1)b [= now Art 296(1)(b)] Applies’ (available in French); see also answer to the written question E-1324/01 (2001/C 364/091) of 4 May 2001, for the English translation of the list. 38 See Case C-414/97 Commission v Spain, judgment of 16 September 1999, paras 21–22. This case related to the exclusion of VAT of imports and acquisitions of armaments in Spain. 39 See Case T-26/01 Fiocchi Munizioni v Commission, judgment of 30 September 2003, paras 59 and 61. 40 See Commission of the European Communities, ‘Interpretative Communication on the Application of Art 296 of the Treaty in the Field of Defence Procurement’, COM(2006) 779, 7 December 2006.

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contracts and contracts requiring special security measures.41 It seems that this Directive-based exception is closely linked with the—equally restrictive—exemption of Article 346 (1)(a), which provides that no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security. Confidentiality needs which are related to the procurement process for military equipment are covered by Article 346 (1)(b) TFEU. In sum, only in highly exceptional cases can public supply and service contracts be exempt from the freedom of movement of goods and the freedom to provide services to foster Internal Market competition. A Member State that hires PMSCs to provide services within the Internal Market would have to abide by the government procurement rules even if the services were provided to third-country nationals (eg private firms hired to provide training in an EU Member State to third-country military personnel or law enforcement authorities). In practice, however, Member States have been reluctant to use the public procurement Directive in the field of security and defence and have widely invoked Article 296 TEC (defence) or Article 14 of the Directive (security) to justify exceptions to the rule, reportedly because of the risks involved in particular concerning security of information and security of supply in this sector.42 Directive 2009/43/EC on simplifying the terms and conditions of intra-EU transfers of defence-related products43 in that respect is meant to add to the development of an Internal Market for defence-related equipment by facilitating intra-EU transfers through harmonisation of relevant laws and regulations of Member States. The defence-related products to which the Directive applies must strictly correspond to the Common Military List of the European Union (Article 13). Even then, this Directive recognises the right of Member States to invoke, on a caseby-case basis, Article 346 TFEU despite the fact that the frequent use of this exception was the primary motivation for further harmonisation attempts in this field. In connection with the same, a new procurement Directive in the field of defence and security applies to procurement of military equipment such as arms, munitions and other war materials, and also to sensitive 41 Art 14 reads: “This Directive shall not apply to public contracts when they are declared to be secret, when their performance must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned, or when the protection of the essential interests of that Member State so requires.” See also Recital (22) of the Directive. 42 See press statement by C McCreevy, European Commissioner for Internal Market and Services, Defence Procurement, Brussels, 5 December 2007, available at www.europa. eu/rapid/pressReleases. 43 Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defence-related products within the Community, [2009] OJ L146/1.

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non-military contracts in areas such as the protection against terrorism, which often have features similar to defence contracts.44 The general (‘civil’) procurement Directive 2004/18/EC continues to apply to public contracts, even if procured by awarding authorities in the field of defence and security, but with the exception of contracts to which the new Directive is applicable.45 The new Directive applies to services insofar as they are directly related to the supply of military equipment or sensitive equipment (ie items for security purposes involving classified information) or if they specifically serve military or sensitive purposes (neither category is further defined, but they are generally described as ‘military and civil defence services’ and ‘investigation and security services’). Even though it is meant to harmonise procurement precisely in the sensitive area of the defence and security markets, the new Directive also allows for exemptions if a Member State considers this necessary to protect essential military interests and security-related confidential information (cf Article 346 TFEU).46 This would apply to contracts which are so highly sensitive that even the new rules cannot satisfy the security needs of the Member State concerned. However, it is expected that in most cases the Member States can use the new Directive without any risk for their security.

V. T H E E U P OSITION ON IN TERN ATION AL HUMAN ITARIAN LAW

The EU does not effectively possess a typical state ability, namely, to use armed force in or against other states. This may explain why the EU, in its political cooperation, has expressed itself more in terms of respect for international law in general and human rights law than IHL, even though references to IHL have increased where the EU has issued political Declarations on (international) conflict situations.47 Apart from a brief statement in 1999,48 so far the only EU document dealing exclusively with IHL is in the 2005 EU Guidelines on Promoting Compliance 44 Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC, [2009] OJ L216/76. 45 Art 71 of Directive 2009/81/EC has amended Art 10 of Directive 2004/18/EC to that effect. 46 See Directive 2009/81/EC, Art 2. See also Arts 12 and 13 of the Directive, which exclude certain contracts from its scope of application. 47 See T Ferraro, ‘Le droit international humanitaire dans la politique étrangère et de sécurité commune de l’Union européenne’ (2002) 84 International Review of the Red Cross 435. 48 See ‘Declaration by the Presidency on behalf of the European Union on the Occasion of the 50th Anniversary of the four Geneva Conventions’, CFSP statement of 12 August 1999.

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with IHL, as updated in 2009.49 The purpose of the Guidelines is to set out operational tools for the EU and its institutions and bodies to promote compliance with IHL by third states and, as appropriate, non-state actors operating in third states. The same commitment extends to the EU Member States in their own conduct including their own forces, but that commitment emerges from the Geneva Conventions and the Additional Protocols to which all EU Member States are party. The Guidelines in essence highlight two ways to stimulate compliance with IHL. First, they are meant to trigger further recognition and awareness of IHL issues within the EU bodies and their internal and external consultations and reports. Secondly, in its relations with third countries, the EU can use a variety of means of action to promote compliance with IHL. These means of action range from political dialogue and public statements to promoting IHL in EU operations and the provision or funding of training in IHL (including the possible refusal of an arms export licence based on the intended recipient’s compliance with IHL). It is clear that the Guidelines are political in nature and that they do not specifically address PMSCs or their services. Nevertheless, they show that there is political support in principle within the EU and its Member States for training and education in IHL of relevant groups such as law enforcement officials and military personnel in third countries, and for preventing and suppressing violations of IHL by EU Missions.50 The changes to the updated version of the EU Guidelines of 2009 are technical, and include references to new legislative and other instruments having a bearing on the protection of persons in armed conflicts. One of the criteria for refusing export licences of military equipment and technology from the EU is whether the country of final destination respects human rights and IHL.51 The express reference to IHL in this context was absent in the 2005 version. IHL has also featured as an important point of reference in several Common Positions regarding armed conflicts (such as Rwanda, Afghanistan) and Joint Actions regarding weapons (such as combating the destabilising accumulation of conventional arms; the support for the

49 European Union’s Guidelines on Promoting Compliance with International Humanitarian Law (IHL), [2005] OJ 2005/C 327/04. For the updated version, see Council Notice on Updated European Union Guidelines on promoting compliance with International Humanitarian Law (IHL), 2009/C 303/06, [2009] OJ C303/12. 50 Although it should be noted that express references to IHL (or human rights law) are absent in instruments adopted by the Council laying down the legal status of CSDP missions, and also in SOFAs or SOMAs concluded by the EU; see V Falco, ‘Private Military and Security Companies and the EU’s Crisis Management: Perspectives under Human Rights and International Humanitarian Law’ in F Francioni and N Ronzitti (eds), War by Contract: Human Rights, Humanitarian Law and Private Contractors (Oxford, Oxford University Press, 2011) 299, 305, 313. 51 See Common Position 2008/944/CFSP, Criterion two.

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ban on anti-personnel landmines), including on the imposition of EU arms embargoes (eg former Yugoslavia).

V I . E U AND C R ISIS MAN AGEMEN T OP ERATION S

The predecessors of the EU (and the WEU52) had already been active in the field of peace and security long before the foreign and security policy was brought clearly under the treaties (CFSP; Maastricht, 1992). This reflects the linkage between economic strength (spread of wealth) and the preservation of peace and security in the European order. The ESDP was launched by the European Council in June 1999 in order to provide the EU with the operational capabilities, made available to the EU by its Member States on a voluntary basis, and the institutional basis necessary for conducting autonomous crisis management operations in third countries.53 It has a civilian dimension with four priority fields: police; strengthening the rule of law; strengthening civilian administration; and civil protection. The CFSP and ESDP also have a military dimension, which includes the European Defence Agency (whose activities relate mainly to defence equipment and the European defence technological and industrial base). EU crisis management operations include humanitarian and rescue tasks, peacekeeping tasks, tasks of combat forces in crisis management, including peacemaking, as well as joint disarmament operations, the support for third countries in combating terrorism and security sector reform. These tasks require that EU armed forces are able to work together and to interact with civilian personnel (so-called interoperability). In its Headline Goal 2010, the Member States of the EU set themselves the goal to be able, by 2010, to respond with rapid and decisive action, applying a fully coherent approach, to the whole spectrum of crisis management operations covered by the TEU.54 PMSCs are not mentioned in the Headline Goal; the only reference to ‘civil’ forces is to the police components in EU crisis management operations, but that is merely to distinguish them from ‘military’ forces (police functions are part of civilian crisis management).55 Any binding regulations as regards the hiring of PMSCs for EU 52 The WEU, which ceased to exist on 30 June 2011, has effectively been integrated in the EU as per the treaties of Amsterdam (1999) and Nice (2001). Europe’s collective defence now rests in full with NATO. 53 See A Sari, ‘Status of Forces and Status of Mission Agreements under the ESDP: The EU’s Evolving Practice’ (2008) 19 European Journal of International Law 67, 68. 54 Headline Goal 2010, approved by the General Affairs and External Relations Council on 17 May 2004, endorsed by the European Council of 17–18 June 2004. 55 See the Civilian Headline Goal 2010, noted by the General Affairs and External Relations Council on 19 November 2007 (doc 14823/07).

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missions seem to be absent. The only possibly relevant reference to ‘civilian personnel’ in ESDP missions can be found in the 2005 ‘Generic Standards of Behavior for the ESDP Operations’, which is a non-binding document that has not even been adopted by the Council, but has been agreed by a Council working party with mere advisory functions.56 At the European level, there is also a voluntary Code of Conduct for the private security sector for the companies and employees in the sector to be used in their activities; however, this does not seek to apply its recommended normative framework to the export of private (military and) security services outside the EU.57 The EU appears to be very restrictive in hiring private security contractors. Apart from the security guards on the premises of the Commission and the Council in Brussels, the few known examples relate to private guards within the embassy in Baghdad (shared with the UK) and incidental private security officers hired for civilian missions. In Operation Atalanta, the ESDP’s first ever naval operation, the EU made use of military ships only, even though the merchant shipping industry itself has been reportedly making use (on a limited scale) of PMSCs onboard cargo ships to deter and defend against piracy attacks. A Commission Recommendation has advised the shipping industry not to offer resistance against pirates but, if possible, to buy time until military forces arrive.58 It can be assumed that, within the EU institutions, like in many EU Member States, the prevailing idea is that military duties, such as direct combat and force protection, are not a task for private contractors in EU missions.

V I I . C ONC LUDIN G REMARK S

Notwithstanding important developments, such as the control of export of military technology and equipment now being arranged in a binding instrument replacing the voluntary EU Code of Conduct on Arms Exports, there are no specific regulations of the PMS sector today at the EU level. Even within the Internal Market, private security services have not been harmonised beyond the Treaties and remain outside the general Services Directive. The (few) regulatory measures at the European level that touch on the movement of goods and related services in the field 56

See Falco above n 50, 316–18. See CoESS and Uni-Europa, ‘Code of Conduct and Ethics for the Private Security Sector’, 18 July 2003; see also Joint Declaration of CoESS and UNI-Europa on the European harmonization of legislation governing the private security sector, 13 December 2001; Joint Declaration by CoESS and Uni-Europa ‘Towards a European Model of Private Security’, 15 October 2004. 58 See Commission Recommendation on Measures for Self-protection and the Prevention of Piracy and Armed Robbery against Ships, [2010] OJ L67/26. 57

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of security and defence do not regulate—or require EU Member States to regulate—the export of private military and security services in their own right. Some restraints with respect to the arms trade with third countries may derive from the Council Common Position on the control of export of military technology and equipment from the EU, and from UN, EU or OSCE embargoes on arms export to certain destinations. Beyond that, it can be concluded that the activities of EU-based or EU-hired PMSCs carried out in third states are not regulated at the EU level—also, it seems, when PMS contractors would be hired for EU crisis management operations. At the same time, the (non-binding) EU Guidelines on Compliance with IHL indicate that the EU is willing in principle to use all kinds of actions ‘externally’ to support compliance with IHL by third states. However, concrete regulatory measures to support compliance with IHL by PMSCs are absent. The entry into force of the Treaty of Lisbon has introduced important institutional changes to the EU, in particular in the field of CFSP, which includes the CSDP. These changes, however, have not put an end to the institutional dividing line between the CFSP and the other policy areas of the Union, despite the fact that Article 40 TEU is meant to ensure more mutual respect as regards the implementation of the CFSP and the other policy areas. The competences of the Commission and the Council, as well as the available binding regulatory instruments, have not changed in substance. It can be concluded that few implications, if any, derive from the institutional changes in respect of possibilities for regulating PMS services at the EU level. Regulation of the PMS sector in the EU would seem to be a topic for which a shared competence between the Union and the Member States exists in principle—although this may differ depending on the precise aim and content of a given instrument. If competent in principle, the Union must still observe the principles of subsidiarity and proportionality in determining the level and extent to which it should act, in particular in its role as legislator. In regard to the regulation of the PMS sector, the obvious risk that PMSCs may decide to relocate to a Member State with a lenient regulatory regime can be countered by regulatory action at the EU level, thereby taking account of proportionality. With respect to regulating the ‘export’ of PMS services from the EU to third states, the Council under the CFSP is competent in principle to take decisions. It nevertheless seems that, with Article 40 TEU in force, regulatory measures at the EU level concerning external action should not create legal or factual barriers for the functioning of the Internal Market, even if the Commission has not yet adopted specific measures.

3 The European Union and Private Military and Security Contractors: Existing Controls and Legal Bases for Further Regulation MARCO GESTRI

I . I NTRODUC TION

T

HE PRESENT CHAPTER moves from the largely shared premise that, in the EU, the current legal framework concerning private military and security contractors or companies (PMSCs)1 is inadequate, at both the national and supranational level, and that it is highly opportune for the EU institutions to enact regulatory measures related to PMSCs and their services.2 Such measures would be instrumental in pursuing different policy objectives: to ensure better compliance by PMSCs with human rights law and international humanitarian law (IHL); to improve the efficiency of PMSCs and eliminate obstacles to trade and distortions of competition in the Internal Market; and to promote the adoption of similar regulatory standards among third states. After a brief overview of the limited and fragmented controls on 1 For the purposes of this article, the notion of PMSCs is not confined to corporate entities (companies) but also includes private individuals delivering military and security services as self-employed persons. Indeed, the Court of Justice has established that Member States may not provide that a private security undertaking must be constituted as legal person in order to carry out its activities in their territories: Case C-171/02 Commission v Portugal [2004] ECR I-5645, paras 41–44. In other words, European case law safeguards the possibility for natural persons of delivering private security activities on a self-employed basis. 2 See below, Annex, PRIV-WAR Recommendations. See also European Parliament, Resolution of 11 May 2011 on the development of the common security and defence policy following the entry into force of the Lisbon Treaty, doc A7-0166/2011, para 53, nyr.

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PMSCs stemming from existing EU legislation (II), the chapter will assess the legal bases and the normative instruments which are available to the EU institutions for further regulation in subiecta materia (III), in the light of the constitutive Treaties after Lisbon and on account of the principle of conferred powers, set forth in Article 5 paragraph 2 of the TEU.

I I . C URREN T C ON TROLS

At the EU level, to date PMSCs have not been subject to direct ad hoc regulatory measures.3 On the other hand, one may find EU rules imposing limits or controls on specific services that could be provided by PMSCs based in the EU or on the export of particular items that they could employ for their activities. Generally speaking, such measures pursue two different kinds of objectives: the protection of international security and the safeguard of fundamental human rights.

A. Export Controls on Dual-Use Items The first category of restrictions, potentially applicable to PMSCs, concerns so-called ‘dual-use items’; that is, goods and services capable of being used for both civil and military purposes. In this regard, the EU has introduced a system of controls covering items that can be used in connection with weapons of mass destruction (WMD) or missiles for delivering them. Currently, the export control regime concerning dual-use items stems from the Council Regulation (EC) 428/2009 setting up a Community regime for the control of exports, brokering and transit of dual-use items4 and from the Council Joint Action of 22 June 2000 concerning the control of technical assistance related to certain military end-uses.5 Regulation 428/2009 has been adopted in the framework of the common commercial policy (CCP), on the legal basis offered by Article 133 TEC (now Article 207 TFUE). In effect, as the Court of Justice has declared, the CCP does not solely concern measures which pursue purely commercial objectives.6 In contrast, according to the Court, the implementation of a CCP requires a non-restrictive interpretation of that concept, so as to avoid disturbances in intra-EU trade by reason of the disparities which would then exist in certain sectors of economic relations with third states. In particular, a measure is not excluded from 3 4 5 6

For further references, see G den Dekker, Chapter 2 above. [2009] OJ L134/1. [2000] OJ L159/216. Opinion 1/78 International Agreement on Natural Rubber [1979] ECR 2871, para 45.

The EU and Private Military and Security Contractors 55 the scope of the CCP on the ground that it has foreign policy and security objectives.7 Under Article 3 of the Regulation, an authorisation by the competent national authorities is required for the export of the dual-use items listed in Annex I, which implements internationally agreed controls. The authorisation regime also covers the export of technology, that is of the ‘specific information necessary for the development, production or use of the controlled goods’. This information may take the form of ‘technical data’ or ‘technical assistance’.8 The latter may consist in ‘instructions, skills, training, working knowledge and consulting services and may involve the transfer of technical data’. It should, however, be noted that controls on technology do not apply to information which is in the public domain. Even dual-use items (and related technology) not listed in Annex I are subject to an export authorisation in two situations (‘end-use controls’): (i) when the exporter has been informed by the authorities of the Member State in which he is established that the items are or may be intended for use in connection with WMD or missiles for their delivery; and (ii) when the purchasing country or country of destination is subject to an arms embargo and the exporter has been informed by the authorities that the items are or may be intended for a military end-use. One of the innovations introduced by Regulation 428/2009 is the control over brokering services. The latter are subject to national authorisation if they concern controlled items and are provided in the territory of a third state by a natural or legal person or partnership resident or established in a Member State. However, it should be pointed out that under the Regulation the sole provision of ancillary services (eg transportation) is excluded from the definition of ‘brokering services’. In order to better define the types of activity that are covered by the Regulation, it is necessary to refer to the definition of ‘export’, as envisaged in Article 2(2), and to Article 7. From those provisions, it may be concluded that, as regards services, the Regulation is applicable to the trans-border supply of technical assistance by an exporter based in the EU—through both tangible (eg book, CD Rom) and intangible means (via the internet, telephone or fax)—whereas it does not apply to the supply of services or the transmission of technology if that supply or transmission involves cross-border movement of persons. However, the Regulation is accompanied, and in a sense completed, by the Council Joint Action of 22 June 2000 concerning the control of technical assistance related to certain military end-uses. The Joint Action, which has been adopted under Article 14 TEU (now Article 28 TEU), 7

Case C-70/94 Werner [1995] ECR I-189, para 10; C-83/94 Leifer [1995] ECR I-3231. Annex I, Definitions. See also the ‘General Technology Note’ and the “Nuclear Technology Note’ (ibid). 8

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in the framework of the common foreign and security policy (CFSP), has binding force vis-à-vis Member States. Being deprived of direct applicability or direct effect, however, it has to be implemented by Member States through the adoption of national legislation. Article 2 commits Member States to subject to controls (prohibition or authorisation requirement) the provision of technical assistance outside the EU by a natural or legal person established in the EU when it is intended, or the provider is aware that is intended, for use in connection with WMD or missiles capable of delivering such weapons. In addition, Article 3 requires Member States to consider the possibility of controlling technical assistance related to conventional military end-uses provided in countries subject to EU, Organization for Security and Co-operation in Europe (OSCE) or UNSC arms embargoes. Contrary to the Regulation, the controls introduced by the Joint Action seem also to cover technical assistance through the movement of persons.9

B. Military Technology and Equipment Some restrictions upon the potential activities of PMSCs also derive from the rules concerning the export from the EU of military goods and technology. Currently, the matter is regulated by Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment.10 The Common Position has been enacted in the framework of the CFSP and has replaced the Code of Conduct on Arms Export, adopted by the Council in 1998. Whereas the latter constituted a soft law instrument, formally deprived of binding force, the Common Position imposes legal obligations upon Member States, which have to implement it in their national legislation.11 The Common Position provides that Member States shall assess export licence applications for items included in the Common Military List of the EU12 on a case-by-case basis against eight criteria envisaged by Article 2.13 The criteria aim at preventing the export of military technology and equipment which might be used for internal repression or international 9 See Q Michel, The European Union Export Control Regime (Liège, 2011) 21, local.droit. ulg.ac.be/sa/uee/admin/file/publi/20110324095344_vademecum-V.2.18.pdf. 10 [2008] OJ L335/99. See also Council of the EU, ‘The User’s Guide to Council Common Position 2008/944/CFSP Defining Common Rules Governing the Control of Exports of Military Technology and Equipment’, PESC 545 COARM 25, 29 April 2009. 11 See Art 15 TEU (now Art 29 TEU) and Art 12 of the Common Position. 12 The last version of the Common Military List was adopted by the Council on 15 February 2010: [2010] OJ C69/19. 13 The Common Position also establishes a notification and consultation mechanism for licence denials and a transparency procedure through the publication of the EU annual reports on arms exports.

The EU and Private Military and Security Contractors 57 aggression or contribute to regional instability. For the purpose of this research, it should be noted that the export controls in respect of military equipment and technology do not exclusively pursue security-related objectives but also the prevention of the infringement of fundamental human rights and of serious violations of IHL in third states.14 As emerges from its title, the Common Position includes in the export controls the supply of technology, in particular of that which is required for the development, production or use of items included in the EU Common Military List.15 More precisely, technology is defined in the same terms as in the dual-use Regulation and comprises the above-mentioned forms of technical assistance.16 It is not completely clear, though, whether the supply of technical assistance effected thorough the transborder movement of natural persons is covered by the Common Position. On the one hand, such a modality is not expressly excluded, contrary to what happens in the Regulation on dual-use items and on torture related export controls (see below). On the other hand, all the forms of delivery of technology expressly mentioned by Article 1 paragraph 2 are characterised by the fact that the service itself moves across the border and does not involve the physical movement of the provider. In any case, it seems reasonable to maintain that the transfer of technology (including technical assistance) carried out through the travelling of the provider into a third state is also covered by the Common Position. It is worth mentioning that the Common Position also deals with the possible impact that the European standards may have on the conduct of third states. In particular, Article 11 provides that Member States shall use their best endeavours to encourage other arms-exporting states to apply the criteria established by the Common Position. The Council has in effect recently adopted a Decision envisaging a number of concrete initiatives to promote among third countries the criteria elaborated at European level (for instance, providing assistance in the drafting and implementation of national legislation or in the training of licensing officials).17

C. Death Penalty and Torture Goods and Related Technical Assistance In order to contribute to the abolition of the death penalty in third states and to the prevention of torture and other cruel, inhuman or degrading 14

See, in particular, Criterion 2 and Criterion 6 (Art 2 of the Common Position). EU Common Military List, ML 22. 16 See Art 1, para 2. 17 Council Decision 2009/1012/CFSP of 22 December 2009 on support for EU activities in order to promote the control of arms exports and the principles and criteria of Common Position 2008/944/CFSP among third Countries, [2009] OJ L348/16. 15

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treatment or punishment, the Council has adopted, in the framework of the CCP (Article 133 TEC, now 207 TFEU), Regulation (EC) 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.18 As stated in its preamble, the Regulation is ‘instrumental in promoting respect for human life and for fundamental human rights’ and in particular ‘should ensure that EU economic operators do not derive benefits from trade which either promotes or otherwise facilitates the implementation of policies on capital punishment or on torture’ (Recital No 7). Regulation 1236/2005 covers two categories of goods and related technical assistance. First, goods which have no practical use other than for the purpose of capital punishment or torture (Article 2), which are listed in Annex II, the export from the EU of which, is absolutely prohibited. It is likewise forbidden to supply technical assistance related to those goods from the customs territory of the EU to any person, entity or body in a third country. Secondly, the Regulation requires an authorisation for the export of goods, and related technical assistance, which could be used for capital punishment or torture but which may also have legitimate applications. Such an authorisation has to be issued by Member States on the basis of a case-by-case assessment. The definition of ‘technical assistance’, set forth in Article 2(f) of the Regulation, covers a broader spectrum of activities than those subject to controls under the dual-use Regulation and the Common Position on military equipment. Indeed, as far as Regulation 1236/2005 is concerned, ‘technical assistance’ means ‘any technical support related to repairs, development, manufacture, testing, maintenance, assembly or any other technical service, and may take forms such as instruction, advice, training, transmission of working knowledge or skills or consulting services’. In addition, ‘technical assistance includes verbal forms of assistance and assistance provided by electronic means’. However, the Regulation expressly excludes from its scope of application the supply of technical assistance ‘if that supply involves cross-border movement of natural persons’ (Article 1 paragraph 2) and does not control brokering of the goods concerned.

D. Preliminary Conclusions Concerning PMSCs and Export Controls The above-mentioned rules subject the supply of certain categories of services that might be potentially offered by PMSCs (eg consulting or 18

[2005] OJ L200/1.

The EU and Private Military and Security Contractors 59 training in the employment of dual-use items, arms or equipment that could be used for capital punishment or torture) to an outright prohibition or to an authorisation requirement. In any event, even if the advising of foreign law-enforcement or military forces, and their training, are activities that may have a great economic importance for PMSCs, the overall impact of the existing EU rules upon PMSCs clearly remains marginal. First, such rules basically concern equipment-related technology. In other words, the export of services is covered insofar as it is directly and specifically associated with certain goods (dual-use items that could be employed for WMD, military or death-penalty goods). In consequence, those rules do not cover the export of military and security services as such, which is the core mission of PMSCs, but mainly apply to EU-based industrial companies concerned with defence, namely firms operating in the production and trade of defence products.19 As regards dual-use items and military equipment, this is also a result of the definition of technology as ‘specific information’ that is necessary for the development, production and use of the controlled goods and of the exclusion of technology that is ‘in the public domain’. Concerning the Regulation on death penalty and torture goods, the broader definition of technical assistance is potentially capable of covering a wider spectrum of activities. However, such activities still have to be linked to the specific police and security equipment listed in the Annexes. Secondly, the EU rules so far adopted under the CCP reflect the limitations of the scope of that policy, with respect to trade in services, which resulted from the Court’s Opinion 1/94.20 In particular, they do not include the supply of services involving the cross-border movement of persons. In view of this, the sending by a PMSC of instructors into a third state (eg in the framework of a training programme) is not per se covered by the Regulations on dual-use items and on torture goods. The latter do not even regulate the transfer of technology and technical assistance through the movement of third-country nationals into the EU territory (as in the case of a training programme organised by a PMSC in the EU). An interpretation capable of including that kind of modality seems, in contrast, possible for the above-mentioned instruments adopted in the framework of the CFSP.

19 A Bailes and C Holmqvist, ‘The Increasing Role of Private Military and Security Companies’, European Union DG External Policies Study (October 2007) 20. However, at times the same companies carry out both the production and trade of defence goods and the export of security and military services (ibid, 3). 20 Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property—Article 228 (6) of the EC Treaty [1994] ECR I-5267.

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A. The Private Security Industry and Internal Market Rules The Court of Justice, in a string of judgments concerning infringement proceedings brought by the Commission against various Member States, has ruled that the activities of security firms fall within the scope of application of the Treaty rules pertaining to the Internal Market.21 In particular, those activities are subject to the provisions concerning the freedom of movement for workers, the freedom of establishment and the freedom to provide services. In order to reach such a conclusion, the Court has excluded that the activities of security firms and security staff could be generally covered, as advocated by the Member States involved, by the exception concerning ‘employment in the public service’, as regards the movement of workers (Article 45 TFEU), or by that concerning ‘activities connected with the exercise of official authority’, provided by Article 51 TFEU (and 62 TFEU) in relation to the freedom of establishment and to provide services. Regarding the second exception, according to established case law, such derogation must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority. In the Court’s view, this is not normally the case for the activity of security undertakings and security staff. In this connection, of particular interest are the remarks made by Advocate General (AG) Alber, in his Opinion in the leading case Commission v Spain, which delineate the essential features of private security firms. The AG observed that ‘the object of establishing and operating a security undertaking is to assume functions of surveillance and protection on the basis of private-law relations’.22 In his view, the decisive element for determining the nature of the activity in question is that security firms ‘act on private initiative pursuant to contractual relations and are not vested with official authority’.23 The AG, on the other hand, considered other factors, eg whether the assets to be guarded are privately or state owned and the fact that the activity may be carried out in public spaces, to be irrelevant. According to consistent case law, even when private security firms are called upon to assist the public security forces, the tasks they perform must generally be regarded as ‘auxiliary functions’, whereas the ‘main functions’ are reserved for public security forces. As proposed by AG 21 See Case C-114/97 Commission v Spain [1998] ECR I-6717; Case C-355/98 Commission v Belgium [2000] ECR I-1221; Case C-283/99 Commission v Italy [2001] ECR I-4363; Case C-171/02 Commission v Portugal [2004] ECR I-5645; Case C-514/03 Commission v Spain [2006] ECR I-963; Case C-465/05 Commission v Italy [2007] ECR I-11091. 22 Opinion of AG Alber delivered on 7 May 1998, Case C-114/97 above n 21, para 25 (emphasis added). 23 ibid.

The EU and Private Military and Security Contractors 61 Alber, such a distinction between main and auxiliary functions must be understood not as a quantitative criterion, but as a qualitative one. Thus, the performance of ancillary and preparatory duties in relation to those of the public authority, when the latter takes the final decision, has to be considered as an auxiliary function.24 It might be asked how those criteria could be applied in respect of the possibility of entrusting to private military and security firms, notably in crisis situations, activities such as arrest, detention and interrogation of individuals. Such activities may involve the exercise of a power of constraint, which has been identified as a distinctive feature of the exercise of public authority. However, according to the case law of the Court of Justice, it is not possible to exclude an entire profession or economic activity from the scope of application of the Internal Market rules just because it may involve activities connected with the exercise of official authority, in particular when the latter are separable from the professional activity in question taken as a whole.25 This consideration seems to open the way to the application of Internal Market rules, as well as to the adoption of harmonisation measures (see below), not only vis-à-vis private security firms but also in respect of undertakings carrying out services of a military nature too (generally known as PMSCs).26 In consequence of the above-mentioned infringement proceedings, brought against a certain number of states, private surveillance and control services have benefited from a certain liberalisation, as the most evident barriers to the circulation of such services, determined by national laws and regulations, have been removed.27 This is particularly the case of national measures having a clear discriminatory character or not taking account, in disregard of the principle of mutual recognition, of conditions or controls to which PMSCs are subject in their state of origin. However, such a liberalisation has not been accompanied by the adoption of any harmonisation measure at the EU level. It must be noted that ‘private security services’ are excluded from the scope of application of the General Directive on Services (Directive 2006/123/EC).28 According to the Handbook on the Implementation of the Services Directive, the exclusion ‘covers services such as surveillance of property and premises, protection of persons (bodyguards), security 24

See also C-42/92 Thijssen [1993] ECR I-04047, para 22. See, inter alia, Case C-404/05 Commission v Germany [2007] ECR I-10239, para 47. It might be asked whether the application of the rules on the Internal Market to private military services is barred or limited by Art 346 TFEU. It should be noted that the provision only refers to ‘the production of or trade in arms, munitions and war material’, not covering services; in any case, the norm, involving an exception, must be interpreted restrictively. 27 See den Dekker above n 3. 28 Art 2 (2), lit k. 25 26

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patrols or supervision of buildings as well as the depositing, safekeeping, transport and distribution of cash and valuables’.29 It is worth recalling that the Directive does not aim at the harmonisation of the services covered; it mainly provides for the removal of barriers to the supply of those services and for the establishment of measures of administrative cooperation among states.30 The exclusion of private security services had not been envisaged by the original proposal from the Commission and resulted from an amendment of the European Parliament. According to the Parliament, the exclusion was necessary because the sector should be ‘fully harmonised’. The Commission accepted the exclusion but refused to refer, in the preamble of the Directive, to a need for full harmonisation for security services, stating that such need ‘has not been proved’.31 As a sort of compromise, under Article 38 of the Directive the Commission had to ‘assess, by 28 December 2010 the possibility of presenting proposals for harmonisation instruments’ as regards ‘private security services and transport of cash and valuables’. The Commission has so far decided to present a proposal exclusively as regards one particular activity of private security firms, notably the cross-border transportation of euro cash between euro-area Member States. On 14 July 2010 it adopted a proposal for an EU Regulation that is currently being discussed by the European Parliament and the Council.32 The proposed Regulation is based on Article 133 of the TFEU, providing that the European Parliament and the Council ‘shall lay down the measures necessary for the use of the euro as the single currency’. The assumption is that the existing incompatibilities between national legislations on the transportation of cash by road create obstacles to the cross-border transport of the euro and consequently to its use. The narrow scope of the proposed Regulation, which only covers the cross-border transportation of euro cash (effected according to specific modalities), leaving aside the transport of other cash and valuables or the transport of euro cash within national borders, should be noted. Apart from that very specific activity, as regards the private security sector in general, the Commission has come to the conclusion that harmonisation is not required at the moment. That position is clearly illustrated by the answer to a parliamentary question given by Michel 29 European Commission, ‘Handbook on the Implementation of the Services Directive’ 13, available at http://ec.europe.eu/internal_market/services/sevices_dir/index_en.htm. On the other hand, ‘services which are not ‘security services’ as such, for instance the sale, delivery, installation and maintenance of technical security devices, are not covered by the exclusion’ (ibid). 30 M Krajewski, ‘Of Modes and Sectors, External Relations, Internal Debates, and the Special Case of (Trade) in Services’ in M Cremona (ed), Developments in EU External Relations Law (Oxford, Oxford University Press, 2008) 172. 31 COM (2006) 160. 32 COM (2010) 377.

The EU and Private Military and Security Contractors 63 Barnier on 3 March 2011.33 After recalling that different views were expressed by the stakeholders on the usefulness for further harmonisation, the Commissioner for Internal Market and Services stressed that ‘based on the information at the disposal of the Commission at this stage, there is no evidence of a major Internal Market malfunctioning for private security services that would justify or require legislative initiatives’. As a consequence, even if the Commission continues to develop its analysis on the basis of all available elements, it ‘does not intend to put a particular focus on this area’. In any case, the Commission will, without prejudicing the high quality of these services, continue ensuring the free movement of private security services on the basis of the direct application of the TFEU rules on the freedom of establishment and the freedom to provide services.

B. Towards Harmonisation Measures in the Field of PMS Services? Notwithstanding the above-mentioned position of the Commission, it seems that the adoption of harmonisation measures for the private security sector, based on the Internal Market provisions, should still be considered a valuable option. As previously recalled, the European Parliament expressed itself to be in favour of such measures in the process leading to the enactment of the General Directive on Services. In effect, the exclusion of private security services from the application of the Services Directive was determined, at least in the opinion of the Parliament, by the acknowledgement that the sector in question is not mature enough for a further reduction of barriers without the adoption of harmonisation measures and the setting up of specific administrative cooperation. Most importantly, in the Resolution adopted on 11 May 2011 the Parliament expressly invited the Commission and the Council to take the appropriate action in order to introduce rules ‘aimed at harmonising national measures regulating PMSC services, including service providers and the procurement of services’.34 It is also worth mentioning the initiative taken by Spain in 2002, in the framework of the former third pillar (police and judicial cooperation in criminal matters).35 Spain proposed the adoption of a Council Decision according to which a network of contact points of national authorities responsible for private security should be established. The initiative contemplated the creation of such a network as an initial step towards the establishment of ‘common requirements in Member States 33

EP, Parliamentary questions, E-010961/2010. Above n 2, paras 53–54. 35 Initiative of the Kingdom of Spain on the setting up of a network of contact points of national authorities responsible for private security, [2002] OJ C42/15. 34

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regarding the authorisation and supervision of the supply of private security services’ (Recital No 2) and the unification of ‘those aspects which, without affecting the peculiarities of each Member State, would allow the parties involved in that sector of activity to extend their business interests to any Member State’ (Recital No 4). To that end, the draft envisaged the exchange among Member States of information and best practices pertaining to the national models for regulating private security and, in the long term, the evaluation of the possibility of approximation of such models. The European Parliament, however, reacted negatively to the proposal, forcefully stating that cooperative measures aimed at approximation of the national laws should be adopted on the basis of the rules of the TEC on the Internal Market.36 In the end, the Council enacted a Recommendation,37 based on the rules of the former third pillar, which confines itself to providing measures of police cooperation among national authorities, in particular in respect of the handling of information generated by the activities of private security firms. The Recommendation avoids any reference to exchanges of information on the national rules regulating security firms or to the need for coordination among Member States in that field. In view of this precedent, it does not seem possible to rely on Article 87 TFEU (police cooperation) as a legal basis for the adoption of adequate regulations concerning the providers of private military and security services. On the other hand, as is well known, under Article 114 TFEU the European Parliament and the Council are empowered to adopt, acting in accordance with the ordinary legislative procedure, ‘the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market’. Recourse to such legal basis is possible when the measure to be adopted has as its object the improvement of the conditions for the establishment and functioning of the Internal Market. More particularly, according to the Court’s case law,38 measures based on that article may be adopted in the presence of disparities or potential disparities between national rules which (i) obstruct the basic freedoms or (ii) create ‘appreciable’ distortions of competition. It is worth analysing whether such preconditions for harmonisation under Article 114 TFEU could be identified in the case at hand.

36 See the Report of 15 May 2002 on the initiative of the Kingdom of Spain with a view to the adoption of a Council decision on the setting-up of a network of contact points of national authorities responsible for private security, PE final A5-0168/2002. 37 [2002] OJ C153/1. 38 Case C-301/06 Ireland v Parliament and Council (‘Retention of Data’) [2009] ECR I-593, paras 63–64.

The EU and Private Military and Security Contractors 65 (i) Elimination of Obstacles to the Free Movement of Workers, to the Freedom of Establishment and to Provide Services With respect to private military and security services, in the absence of harmonisation measures, each Member State currently retains the competence to define the conditions for the pursuit of the activities in question, even if in so doing it has to respect the basic freedoms guaranteed by the TFEU.39 Discriminatory measures envisaged in the national legislation of a number of Member States have been removed in consequence of the infringement procedures brought against them. However, it must be observed that, in the relevant judgments, the Court has acknowledged that Member States may still impose certain regulatory requirements on the activities carried out in their territory by PMSCs. In effect, the research carried out in the context of the PRIV-WAR project has demonstrated the permanence of relevant disparities among the national rules concerning private military and security services.40 It seems difficult to deny that the existence of differing requirements may give rise to obstacles to the cross-border exercise of such economic activities. Such a disparity may obstruct the freedom of movement for workers and the freedom of establishment and of supplying services within the Internal Market. It should be borne in mind that private security services may typically imply cross-border activities (for instance, the international transport of valuables) and that the European case law does not require a minimum threshold as regards the magnitude of the obstacles to be removed.41 (ii) Elimination of Distortion of Competition A second alternative premise for the adoption of harmonisation measures is the presence of disparities between national laws capable of distorting competition. According to consistent case law, it is necessary to verify that the distortion of competition, which the harmonisation measure purports to eliminate, is ‘appreciable’.42 The comparative research conducted in the framework of the PRIV-WAR project shows profound disparities among the national rules concerning private military and security services. In particular, as underlined in the project Final Recommendations, ‘the regulatory approaches range from the outright prohibition of PMSCs in some States; to a specific regulatory regime in other States, while some Member States have adopted a system of “laissez-faire”’. As 39

See, inter alia, Case C-514/03 Commission v Spain, above n 21, para 23. PRIV-WAR Recommendations above n 2, para 1(b). 41 D Chalmers, G Davies and G Monti, European Union Law, 2nd edn (Cambridge, Cambridge University Press, 2010) 690. 42 Case C-376/98 Germany v Parliament and Council (Tobacco Advertising) [2000] ECR I-8418, para 106. See J Usher, Note in (2001) 38 Common Market Law Review 1520. 40

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things are, an undertaking established in a Member State requiring a PMSC to comply with higher standards is unquestionably at a disadvantage in respect of an undertaking established in a state envisaging less stringent requirements. The scale in the divergences currently existing among Member States seems capable of determining a distortion of competition that may be regarded as ‘appreciable’. (iii) The Object and Purpose of the Harmonisation As the Court of Justice has repeatedly stated, once the conditions for recourse to Article 114 TFEU as a legal basis are satisfied, the EU legislature may pursue a variety of independent regulatory goals. In this regard, in the Opinion delivered in the Vodafone case, AG Poiares Maduro clearly distinguished between ‘what triggers the harmonisation (the risk of free movement restrictions or distortions of competition) and the scope and content of that harmonisation’.43 In particular, EU measures must be able to pursue the various policy goals usually carried out by the national measures which are to be harmonised. As stressed by the AG, Article 114 TFEU may even provide the basis for an intensification of the regulation. In effect, Article 114 (3) TFEU expressly requires that harmonisation measures ensure a high level of health, safety, and environmental and consumer protection. Thus the Court of Justice has clearly acknowledged that it is possible to adopt a measure on the basis of Article 114 TFEU even if it pursues the general policy objective of ensuring a high level of health44 or consumer protection,45 or of safeguarding security within the EU (investigation, detection and prosecution of serious crime).46 It is clear that some of those objectives (notably consumer protection and the safeguard of security) should be taken into particular account in the drafting of harmonisation measures directed at PMSCs. It is also indisputable that harmonisation measures in subiecta materia could be adopted with the objective of ensuring a high level of human rights protection, which is to inform all EU policies. An interesting precedent in that regard is constituted by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.47 The Directive moves from the consideration that the difference in levels of protection of the rights and freedom of individuals in the field in question constituted an 43

Opinion of AG Poiares Maduro delivered on 1 October 2009, Case C-58/08 Vodafone,

nyr.

44 45 46 47

Case C-376/98, above n 42, para 88. Case C-58/08, above n 43. Case C-301/06 Ireland v Council and Parliament [2009] ECR I-593. [1995] OJ L281/31.

The EU and Private Military and Security Contractors 67 obstacle to the pursuit of a number of economic activities at EU level. As a consequence, the approximation of national laws, with a view to rendering human rights protection equivalent in all Member States, was necessary in order to ensure the removal of such obstacles (Recital No 7). In light of this, it seems that the adoption of a Directive based on Article 114 TFEU, setting forth common regulatory standards for PMSCs established in the EU—in respect of aspects such as registration and licensing, personnel selection and training, administrative supervision and transparency—would not only be possible but also highly opportune.48 Such a Directive would offer a unique opportunity for reconciling the two (apparently inconsistent) rational bases for regulation in subiecta materia identified by Bailes and Holmqvist:49 that of preventing abuses on the part of PMSCs, in particular regarding human rights protection,50 and of promoting their efficiency. Alternatively, the adoption of a non-binding instrument, notably of a Recommendation covering the above-mentioned issues, may also be contemplated. It should be recalled that the new Article 292 TFEU envisages a general competence of both the Council and the Commission to enact Recommendations. If the envisaged Recommendation is to provide guidelines for the Member States on the regulation of PMS contractors and services, such a Recommendation should probably be approved, in accordance with Articles 292 and 114 TFEU, by the Council on a proposal from the Commission.

48 Needless to say, the adoption of harmonization measures shall be justified with regard to the principle of subsidiarity. During the final conference of the PRIV-WAR project (Brussels, 28 April 2011), it was argued that that would be highly problematic, considering that major PMSCs are concentrated in one Member State (the UK). This argument is not convincing. Among other things, the inclination of the most important PMSCs to project their activities outside their national State is evident. In point of fact, it should be noted that among the signatories of the International Code of Conduct for Private Security Service Providers one can also find companies based in Cyprus, France, the Netherlands, Greece and Estonia. 49 Bailes and Holmqvist above n 19, 25. 50 As stressed by F Francioni, ‘The Role of the Home State in Ensuring Compliance with Human Rights by Private Military Contractors’ in F Francioni and N Ronzitti (eds), War by Contract. Human Rights, Humanitarian Law, and Private Contractors (Oxford, Oxford University Press, 2011) 55, the adoption of such regulatory measures represents an essential instrument for ensuring the effective compliance by the home states of the PMSCs with the due diligence obligation, stemming from international law, to supervise their operations in order to prevent and minimise the risk of human rights violations. See also UN Doc A/63/467–S/2008/636, Annex, Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict, 17 September 2008, Art I, paras 14–17.

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C. Regulating Activities in Third States: The Territorial Scope of an Internal Market Directive (or Recommendation) One of the basic policy goals for EU regulation in the field in question should be that of ensuring that PMSCs comply, in the course of their activities, with human rights standards and IHL. This evidently involves the need to regulate the operations that PMSCs, based in the EU, may carry out in third states. In this regard, prima facie there seems to be no conclusive reason for excluding that an Internal Market directive (or recommendation) providing harmonised regulatory controls on PMSCs could also find application when EU-based undertakings supply services in non-Member States.51 Such a form of extraterritorial legislative jurisdiction would be justified, under international law, in light of the principle of nationality (both of individuals and corporations). However, there is no denying that in the case at issue such an extraterritorial reach of an Internal Market act may appear more problematic, at least in political terms— and also because the supply of services by PMSCs generally involves the movement of natural persons across frontiers. On the other hand, it is apparent that, on account of its legal basis, an Internal Market instrument could not specifically address issues such as the conditions for the hiring of PMSCs in EU common security and defence missions in third countries or the clarification and elaboration of the rules of human rights law or IHL which PMSCs should respect.

D. Expanding the Scope of Export Regulations to Cover PMS Services: the CCP Option and the CFSP Alternative As previously seen, under current EU export regulations peculiar forms of activities that might also be carried out by PMSCs are already subject to an outright prohibition or to an authorisation requirement, conditioned upon criteria harmonised at the EU level. In view of this, another avenue that should be explored in order to regulate the typical activities of PMSCs in third states is that of adopting specific rules on the ‘export’ of PMS services. In this regard, one could imagine an expansion of the scope of application of the current export regulation instruments to include PMS services, or the adoption of new acts specifically targeting PMS services. Concerning the legal basis for such actions, two options might be envisaged.

51

See also Bailes and Holmqvist above n 19, 19.

The EU and Private Military and Security Contractors 69 (i) The CCP Option Some of the export control instruments which may find application in regard of PMSCs have been adopted in the framework of the CCP (notably, the Regulations on dual-use goods and on death penalty and torture goods). In light of the traditional interpretation of the material scope of such a policy by the Court of Justice, though, such Regulations do not cover the supply of services involving cross-border movement of persons (the so-called ‘mode 4’ for the supply of services according to Article I § 2 of the GATS). Needless to say, that is exactly the modality generally employed by PMSCs for delivering their services in third states. The question may be asked whether the entry into force of the Treaty of Lisbon opens up further possibilities for regulation in subiecta materia, given the new scope of the CCP. In effect, Article 207 TFEU has expanded the ambit of the CCP in relation to services to include all the modalities for their supply under the GATS.52 It should, however, be added that some ambiguities persist as regards the scope of the regulatory competences of the EU with respect to the trade in services.53 On the other hand, as previously seen, it is perfectly possible to adopt a measure on the basis of the CCP to ensure the protection and promotion of fundamental human rights, as demonstrated by the Regulation on death penalty goods. In theory, under the CCP it would be possible to adopt a regulation that is an instrument of direct application, in particular as regards private security services; to be frank, though, such a perspective does not seem realistic. (ii) The CFSP Option Another possibility deserving serious consideration with regard to regulating PMSCs’ activities in third states is widening the scope of the existing rules on the export of military technology and equipment. Such rules currently stem from the Council Common Position 2008/944/ CFSP, which confines itself, as for services, to the control of technical assistance directly and specifically associated with items in the Common Military List, exported from the EU and involving information not in the public domain. It is submitted that an expansion of the material scope of those rules to include PMS services would represent the most practical (and effective) way to ensure better compliance by EU-based PMSCs with human rights law and IHL. Indeed, as previously seen, among the criteria which under the Common Position govern the export 52

See A Alemanno, Note in (2010) 104 American Journal of International Law 467. M Cremona, ‘A Constitutional Basis for Effective External Action? An Assessment of the Provisions on EU External Action in the Constitutional Treaty’ EUI WP LAW 2006/30, 30–31. 53

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controls in question, the prevention of the infringement of fundamental human rights and of IHL in third states plays a central role. Of course, that option would require the adoption of a new Decision, under Article 29 TFEU (see below), covering the exports of both military equipment and defence services. An important precedent in this direction can be found in the US legal order. The Arms Export Control Act of 197654 authorises the President to control the export of defence articles and services. The State Department, entrusted with the authority to adopt the pertinent rules, enacted the International Traffic in Arms Regulations (ITAR), under which US persons (both natural and legal) offering ‘defence services’ to foreign nationals must register with and obtain a licence or written approval from the Directorate of Defence Trade Controls (DDTC). In accordance with section 120.9(a) of the ITAR, ‘defence service’ means: (i) the furnishing of assistance (including training) to foreign persons, whether in the US or abroad, in the development, production, modification or use of defence articles; (ii) the furnishing of any controlled technical data; and (iii) ‘military training of foreign units and forces, regular and irregular, including formal and informal instruction of foreign persons in the US or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice’. The breadth of that definition has to be stressed: assistance in the use of any defence article is covered, even when the articles involved are not of US origin; any form of military training is controlled, including when the supplier relies on information in the public domain. Consequently, it is apparent that all the activities of a military nature offered by a US PMSC to a foreign person (state or private organisation) are subject to the registration and licensing procedure set forth by the ITAR. It must be added that in numerous cases the DDTC has been able to sanction ITAR violations by US PMSCs (including the unauthorised training of foreign military forces), notably with the denial of new export licences or the imposition of fines against the involved companies.55 The State Department has recently introduced a proposal to amend the ITAR definition of defence services.56 Even if the proposal moves 54

22 USC 2778. Of particular importance is the Blackwater case. In 2008 the State Department established a ‘presumption of denial’ for all new applications for export licences submitted by the private security company formerly known as Blackwater: see Public Notice 6458, 73 Fed Reg 77099 (18 December 2008). In 2010, the DDTC published a Consent Agreement with Xe Services LLC (previously known as Blackwater) settling claims for hundreds of ITAR violations and imposing a $42 million fine: text available at www.pmddtc.state.gov/ compliance/consent_agreements/pdf/Xe_ConsentAgreement.pdf. See also ‘Blackwater Reaches Deal on US Export Violations’, New York Times, 20 August 2010. 56 Public Notice 7415, 76 Fed Reg 20590, 13 April 2011. 55

The EU and Private Military and Security Contractors 71 from the assumption that the current definition is overly broad and must be streamlined, the new rules would still control the bulk of PMSCs activities in favour of foreign subjects. As regards military training, the proposed rule specifies that the latter will be controlled only when entailing ‘the employment of a defence article’, regardless of whether technical data are involved. A new paragraph 120.9(a)3 would also be introduced, expressly identifying as a defence service the activity of ‘conducting direct combat operations for or providing intelligence services to a foreign person directly related to a defence article’. It is submitted that the new paragraph would only render explicit the inclusion in the definition of controlled services of activities which are already subject to the registering and licensing regime.57

E. Envisaging Rules on the Use of PMSCs in EU Crisis Management Operations Alongside the above-mentioned instruments for the approximation of the regulatory standards directed at the PMSCs operating in the Internal Market and for the control of the export of PMS services by EU persons, the EU should also consider the adoption of measures specifically aimed at regulating the hiring of PMSCs in the framework of EU crisis management operations. This phenomenon has already attracted the attention of the European Parliament, even if at the moment it appears rather marginal.58 More particularly, regulatory standards should be adopted at EU level in order to govern the contracting of PMSCs both by the Member States participating in the EU mission and by the EU itself.59 The appropriate legal basis for such a kind of measures would certainly be provided by the rules on the CFSP. As is known, in spite of the abolition of pillars effected by the Lisbon Treaty, the issue concerning the demarcation of the competences of the Union is still relevant. This is particularly an issue with the delimitation between the CFSP, which 57 This interpretation of the ITAR rules was corroborated by an e-mail interview with the DDTC Response Team of the State Department (2 June 2011, on file with the author). 58 EP Resolution of 11 May 2011, above n 2, calling ‘for urgent detailed information to be provided by the HR/VP to the European Parliament on the hiring of private security and military companies (PMSCs) in CSDP and CFSP missions, specifying professional requirements and corporate standards demanded from contractors, applicable regulations and legal responsibilities and obligations, monitoring mechanisms, effectiveness evaluation and costs involved’ (para 66). PMSCs play a significant role in ensuring the security of the EUJUST LEX Iraq and EUPOL Afghanistan missions (ibid, para 78). 59 On the obligations of the state hiring a PMSC, see Montreux Document, above n 50, Art I, paras 1–8. See also C Hoppe, ‘Positive Human Rights Obligations of the Hiring State in Connection with the Provision of “Coercive Services” by a Private Military And Security Company’ in Francioni and Ronzitti (eds) above n 50, 111.

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finds its legal basis exclusively in the TEU (notably in a specific chapter of Title V), and the other policies envisaged in the TFEU. Indeed, as pointed out in Article 24 (2) TEU, ‘the common foreign and security policy is subject to specific rules and procedures’. As underlined by a number of commentators, after the entry into force of the Lisbon Treaty the definition of the areas pertaining to the CFSP and of those covered by other policies might be even more difficult. On the one hand, the new Article 40 TUE, replacing Article 47 TEU, does not expressly establish (unlike its predecessor) a presumption in favour of the recourse to non-CFSP measures wherever possible. Apparently, the two categories of competences (CFSP and TFEU policies) are put on the same level by the norm in question.60 On the other hand, recourse to the criterion of delimitation elaborated by the Court’s case law (relying on the aim and content of the measure to be adopted) may now appear, in respect of the CFSP, to be rather problematic. In fact, the Treaty of Lisbon has designed the CFSP as a part of the ‘Union’s external action’ and has subjected it to the general objectives set out for all external policies in Article 21 TEU.61 In other words, the CFSP is no longer guided by specific objectives, and this may frustrate or at least complicate the functioning of the established teleological test. As regards the elaboration of rules concerning the hiring of PMSCs in crisis situations and governing their activities, the legal picture seems less complicated. Indeed, it should be considered that the TEU formulates a set of specific objectives (rectius, tasks) in respect of the Common Security and Defence Policy (CSDP), even if it is structured as an integral component of the CFSP.62 In particular, according to Article 42 (1) TEU, the CSDP involves the carrying out of ‘missions outside the Union for peacekeeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter’. This provision is further developed by Article 43(1) TEU, which, expanding the so-called ‘Petersberg tasks’, spells out the objectives that may be pursued by those missions, notably making reference to ‘joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peacekeeping tasks, tasks of combat forces in crisis management, including peacemaking and postconflict stabilisation’. It is apparent that measures concerning the utilisation of PMSCs in the framework of crisis management operations of the kind envisaged by the above-mentioned provisions (which in any case provide a non-binding list) fall within the purview of the CFSP. As regards the type of instruments that could be adopted, Article 25 TEU provides that the Union 60 61 62

Cremona, above n 53, 45. See Art 23 TEU. Arts 42 (1) and 43 (1) TEU.

The EU and Private Military and Security Contractors 73 is to conduct the CFSP by ‘defining the general guidelines’, ‘adopting decisions’ and ‘strengthening systematic cooperation between Member States’. According to this new legal framework, the Decision has become the only binding CFSP instrument. In fact, the ‘general guidelines’ that are adopted by the European Council are designed as a programmatic instrument, defining the strategic lines of CFSP.63 It should be noted that Articles 28 and 29 TEU set forth two different categories of CFSP Decisions, both enacted by the Council and binding on Member States. In particular, Article 28 Decisions essentially replace pre-Lisbon Joint Actions, being adopted ‘where the international situation requires operational action by the Union’. Thus, they constitute more an ‘operative’ instrument, used in order to organise a specific EU action, than a normative one.64 This kind of measure, like its predecessor, is used, for instance, in order to organise the ESDP operations. On the other hand, Article 29 Decisions ‘shall define the approach of the Union to a particular matter of a geographical or thematic nature’. Therefore, they take the place of former EU Common Positions as acts capable of setting standards for the action of the EU and of Member States.65 Standards which, as previously pointed out, are of a binding character. In light of the above, it seems that Article 29 TEU would provide the most appropriate basis for the adoption of a general, standard-setting CFSP Decision in subiecta materia. In this regard, it is possible to refer to the important precedents represented by the previously illustrated Council Common Positions 2003/468/CFSP on the control of arms brokering and 2008/944/CFSP defining common rules governing control of exports of military technology and equipment. This is so even if it must be admitted that the practice of the Council does not always correspond to the above-suggested distinction between Joint Actions and Common Positions, now between Article 28 and Article 29 Decisions. In effect, one may also find examples of EU Joint Actions outlining normative standards, which is notably the case of Council Joint Action of 22 June 2000 concerning the control of technical assistance related to certain military end-uses. In the end, recourse to Article 28 TEU cannot be ruled out, especially if the Council intends to put emphasis on the action to be taken.66 It should be added that the adoption of a CFSP Decision of a normsetting character, based on Article 29 TEU, does not seem barred by Articles 24(1) and 31(1) TEU. It is true that, by virtue of that provisions, 63

See also Art 26 (2) TEU. A Dashwood, ‘The Law and Practice of CFSP Joint Actions’ in M Cremona and B de Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals, Essays in European Law 11 (Oxford, Hart Publishing, 2006) 53, 54. 65 R Adam and A Tizzano, Lineamenti di diritto dell’Unione europea, 2nd edn (Torino, Giappichelli, 2010) 158–59. 66 See Dashwood, above n 64, 58. 64

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in the framework of the CFSP ‘the adoption of legislative acts shall be excluded’; however, it is reasonable to interpret the notion of ‘legislative acts’ in a restrictive way, in harmony with Article 289 TFEU, in particular as referring to the legal acts adopted under the legislative procedure. If, in the context of the CFSP, a binding Decision of the Council would certainly constitute the most appropriate instrument for regulation in subiecta materia, it should be acknowledged that the practice of the EU concerning the adoption of such kinds of measures, apart from those establishing sanctions vis-à-vis certain states or entities, is not very rich. It should also be recalled that the adoption of CFSP Decisions generally requires unanimity in the Council (Article 31 TEU), and it might not be easy to reach this in respect of a binding act. As a consequence, the adoption of a non-binding instrument should also be considered, as a first step to making some progress in the field.67 Here, again, the subject matter of the controls on the export of military equipment offers an interesting precedent. As previously seen, the Council approved in the first place a soft law instrument, in the form of a ‘Code of Conduct’, which has subsequently been replaced by a binding act (notably, a Common Position). In light of this precedent, the option of the approval, by the Council of the EU, of a Code of Conduct for PMSCs in CSDP missions deserves serious reflection.68 On the other hand, the practice of EU institutions, and in particular of the Council, offers a variety of other soft law instruments which could also be used (Guidelines,69 Declarations of Principles, etc). Such documents are generally adopted as annexes to the conclusions of Council meetings. As previously seen, the TEU envisages the adoption of general strategic guidelines, notably on the part of the European Council (Article 26, paragraph 1). General policy issues concerning the use of PMSCs in EU operations could also be dealt with in the framework of such instruments of a programmatic character. In that case, the concrete implementation of those guidelines would be entrusted to the Council. An example of this is offered by the Council Decision 2009/1012/CFSP of 22 December 2009 on support for EU activities in order to promote the control of arms exports and the principles and criteria of Common Position 2008/944/CFSP among third countries, giving practical implementation to the European Security Strategy, and the EU Strategy to 67 See generally L Senden, Soft Law in the European Community Law (Oxford, Oxford University Press, 2004). 68 In this direction, see also EP Resolution of 11 May 2011, above n 2, para 54. 69 See, for instance, ‘EU Guidelines on Children and Armed Conflicts’, updated by the General Affairs Council of 16 June 2008, europa.eu/legislation_summaries/human_rights/ human_rights_in_third_countries/r10113_en.htm; ‘Updated European Union Guidelines on Promoting Compliance with International Humanitarian Law (IHL)’, 2009/C 303/06 of 15 December 2009.

The EU and Private Military and Security Contractors 75 combat illicit accumulation and trafficking of small arms and light weapons and their ammunition.

I V. C ON C LUSION S

By virtue of the direct effect of the TFEU provisions on the free movement of workers, the freedom of establishment and to provide services, and in consequence of the infringement proceedings brought against numerous Member States, private security services have benefited within the Internal Market from a certain liberalisation, for the most evident barriers to the circulation of such services, stemming from national laws, have been removed. Such a liberalisation has not been accompanied by the adoption of any harmonisation measure at EU level. In view of that, it might be said that the sector has been subject in the EU to a substantial ‘deregulation’. Under current EU legislation, the furnishing of services to foreign entities by EU-based PMSCs is subject to very marginal controls, covering mainly the export of technology (including technical assistance) that is directly related to certain specific items and not in the public domain. Moreover, exports controls based on the CCP do not include the supply of services involving the trans-border movement of natural persons. This legal framework is clearly inadequate and, in consideration of the increasing recourse globally to PMSCs for activities involving the risk of human rights or IHL violations, could expose Member States (and also the EU) not only to grave political problems but also to forms of international responsibility, both as home and hiring entities of PMSCs. In light of the above, it is submitted that the adoption of EU measures for harmonising national legislations on the establishment, licensing, governance, monitoring and operation of PMSCs, namely of an Article 114 TFEU Directive (or at least of a Recommendation based on Article 292 TFEU), would be highly opportune and legally justified on account of the conditions provided by the Treaties. It is true that the Commission has recently declared that the adoption of legislative measures for the harmonisation of private security services is, for the time being, not required, yet the issue can hardly be considered settled, especially since the European Parliament has emphasised the need for such harmonisation measures in subiecta materia on numerous occasions. In theory, the ‘structural’ requirements provided by such legislation vis-à-vis EU-based entities could also find application when the entities in question operate in third states, deploying their personnel or acting through local branches. In any case, it seems reasonable to suggest the parallel adoption of rules specifically controlling the export of PMS services (at least of the

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most sensitive) or, more broadly, the offering of such services to third states or foreign nationals. In this particular regard, it is submitted that a quick yet efficient option would be that of widening the scope of the current rules on the export of military technology and equipment (set forth in Common Position 2008/944/CFSP) to include ‘defence services’. In terms of form, this would necessarily entail the adoption of a new Council Decision ex Article 29 TEU, covering both military equipment and defence services. However, from a substantive point of view, this would seem to require minor adaptations of the existing rules, especially since the criteria governing export controls ex Common Position 2008/944 are already largely founded on the need to prevent violations of human rights and IHL. This solution could also rely on the precedent set in the US legal order, with the enactment of the ITAR: thanks to the wide definition of the controlled ‘defence services’, the ITAR submit to registering and licensing requirements, if offered to foreign persons, a significant range of typical PMSC activities (advising, consulting, training, intelligence gathering, combat operations) which might potentially affect the values protected by US regulations. Moreover, although enforcement problems generally exist vis-à-vis activities carried out in third states, in recent years the practice concerning the implementation of the ITAR has led to significant results. Additionally, the need has emerged for the adoption at the European level of normative standards aimed at regulating the hiring of PMSCs, both by Member States and the EU, in the context of CSDP operations. In this regard, it seems that Article 29 TEU would provide an adequate legal basis for a binding Decision of the Council, even if realistically the enactment of a non-binding document (eg a Code of Conduct) should also be considered. The instruments in question could also be used in order to spell out the rules of IHL and HRL which PMSCs have to comply with and to promote the adoption of similar standards among third states. Needless to say, the enactment of parallel EU instruments, along the lines discussed, would achieve the most effective results if appropriate connections among the different instruments were established. In particular, the Decision on the employment of PSMCs in CSDP operations should provide that only properly licensed undertakings, under the Internal Market Directive, could be hired by the EU and Member States. On the other hand, the administrative supervision carried out by Member States in accordance with a Directive on licensing could also cover the services delivered by the undertakings in question in third states. Such supervision might lead national authorities (eg through inspections or audits) to detect violations of the export controls or of the rules on the conduct of operations, and this should determine the adoption of sanctions vis-à-vis the undertakings involved

The EU and Private Military and Security Contractors 77 (eg a suspension of the licence). Last but not least, the provision of legal mechanisms for coordinating the instruments adopted under different legal bases would also be in line with the general objective of ensuring consistency between all EU policies and activities, in the pursuance of all its objectives70—objectives among which human rights protection and ‘the strict observance and the development of international law’71 are of central importance.

70 71

Art 7 TEU. Art 3(5) TEU.

4 The Role of EU External Relations in Ensuring Compliance with Human Rights and Humanitarian Law by Private Contractors MIRKO SOSSAI AND CHRISTINE BAKKER*

I . I NTRODUC TION

T

HE DEBATE ON how to enhance compliance with human rights and international humanitarian law by private military and security companies (PMSCs) has recently turned its attention to the question of how the European Union and its Member States could play an active role in this field. This chapter examines which tools are at the disposal of the EU to improve the behaviour of these private contractors through its external action. This represents one of the most dynamic areas of EU law and practice.1 The analysis is based on the following factual observations: first of all, various PMSCs are incorporated or have established their principal centre of management in EU Member States. Moreover, not only the Member States but also the EU itself may employ private contractors, both in the context of its Common Security and Defence Policy (CSDP) operations and for ensuring security for its delegations in third states or for actors involved in its humanitarian aid missions. Finally, as a global

* While the authors equally share the responsibility for the entire work, for evaluation purposes sections II, III and IV have been written by Mirko Sossai, and section V by Christine Bakker. The introduction and the conclusions were jointly written by both authors. 1 cf M Cremona (ed), Developments in EU External Relations Law (Oxford, Oxford University Press, 2008).

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actor in international relations, the EU is able to influence the behaviour of third states, including the regulation of PMSCs. It is worth recalling that EU Member States, as home states and contracting entities of PMSCs, are subject to human rights law (HRL) and, where applicable, international humanitarian law (IHL). In particular, due diligence obligations require them to prevent violations and to provide an effective remedy when violations occur.2 The EU itself, having legal personality under international law, is bound by both customary international law3 and the treaties it has ratified. Other commentators in the framework of PRIV-WAR have already offered a comprehensive overview of the relevant obligations under human rights and international humanitarian law.4 Respect for human rights is one of the core values on which the EU is founded. With the entry into force of the Lisbon Treaty, one of the objectives to be pursued in all areas of the EU’s external action5 is to ‘consolidate and support democracy, the rule of law, human rights and the principles of international law’.6 This is consistent with Article 6 of the TEU, according to which ‘[t]he Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union . . ., which shall have the same legal value as the Treaties’.7 The foreseen accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms also confirms this commitment to human rights.8 The role and applicability of IHL in the EU legal order and in the Union’s external relations is less evident, since there is no explicit reference to this body of law in the TEU. However, it has convincingly been argued that the various references to ‘international law’, ‘human rights’ and ‘respect for human dignity’ in the TEU may be interpreted in a broad sense, as also covering IHL.9 In 2 See, eg C Hoppe, ‘Positive Human Rights Obligations of the Hiring State in Connection with the Provision of “Coercive Services” by a Private Military or Security Company’ in F Francioni and N Ronzitti (eds), War by Contract: Human Rights, Humanitarian Law and Private Contractors (Oxford, Oxford University Press, 2011) 111. 3 See Case C-162/96 Racke v Hauptzollamt Mainz [1998] ECR I-3655, para 45; C-308/06 Intertanko [2008] ECR, para 51. 4 See V Falco, ‘Private Military and Security Companies and the EU’s Crisis Management: Perspectives under Human Rights and International Humanitarian Law’ in Francioni and Ronzitti (eds), above n 2, 299. 5 Art 21(2), Treaty on European Union (TEU), as amended by the Lisbon Treaty. 6 Art 21(2)b, TEU. 7 Art 6(1) TEU. 8 Art 6(2) TEU. See also Art 6(3), affirming that fundamental rights, as guaranteed by this same convention and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law. For a systematic analysis of the applicability of human rights in the EU legal order and their relevance for the activities of PMSCs, see I Kalnina and U Zeltins, ‘The Impact of the EU Human Rights System on Operations of Private Military and Security Companies’ in Francioni and Ronzitti (eds), above n 2, 80. 9 cf TEU, Arts 3(5), Art 21(1) and Art 21(2)b.

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addition, in recent years several soft law instruments have been adopted expressly recognising the obligations of the EU and its Member States to promote compliance with IHL, including the Updated EU Guidelines on Promoting Compliance with IHL,10 which primarily focus on the promotion of IHL ‘by third states and as appropriate, non-state actors operating in third states’.11 Against this legal background, the analysis starts from the premise that the EU has the capabilities to ensure compliance with HRL and IHL by private contractors, not only those hired by EU itself or the Member States but also those used by other entities in third countries. The authors focus on the different EU policy areas which may affect the conduct of PMSCs: export controls on military and security services; EU crisis management operations; humanitarian aid missions; political dialogue; and human rights conditionality, including through development cooperation. The analysis takes stock of the current law and potential developments in these policy areas, with a view to suggesting possible lines of action.

I I . E U ME M BER STATES AS HOME S TAT E S : EX P ORT C ON TROLS

In a statement before the UN Human Rights Council, the President of the Working Group on the Use of Mercenaries, Mr José Luis Gomez del Prado, stressed ‘the difficulties by war-torn States in regulating and controlling private military and security companies’, and he called upon states ‘where exporting companies are registered to regulate and oversee [PMSC]’.12 In this way, he emphasised the crucial role of the home states in preventing human rights abuses and possible breaches of international humanitarian law by private contractors. At the EU level, one of the options for regulating the activities of PMSCs based within the Member States’ territory is the expansion of the material scope of the instruments governing the exports of certain goods to also include private military and security services.13 Such a develop10 2009/C 303/06 of 15 December 2009 updating the EU Guidelines on Promoting Compliance with IHL, 2005/C327/04, [2005] OJ C32/4. 11 ibid, para 2. 12 José Luis Gomez del Prado, statement before the Human Rights Council, 7th Session, Geneva, 10 March 2008. 13 See A Bailes and C Holmqvist, ‘The Increasing Role of Private Military and Security Companies’, European Parliament DG External Policies Study (October 2007); PRIV-WAR Recommendation no 3, below Annex. Interestingly, recent sanctions regimes imposed by the EU pursuant to UN Security Council resolutions introduce a ban on the export not only of arms and military equipment, but also of military services. See, eg Art 2(a) of Council Decision 2011/137/CFSP concerning restrictive measures in view of the situation in Libya, which prohibits ‘provid[ing], directly or indirectly, technical assistance, training

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ment would be in line with the solution taken in some domestic legal orders in which the rules governing export of such services have been based on the existing arms export control regimes.14 The paradigmatic approach is the regulatory regime created in the US, which consists of a double licence requirement for local companies seeking to export defence services: it establishes a register of approved contractors and a system of application for licence to carry out specified activities.15 Therefore, a short-term solution within the framework of the Common Foreign and Security Policy (CFSP) would widen the scope of the existing control regime on the exports of military technology and equipment, contained in Common Position 2008/944.16 Though it is not aimed at harmonising the licensing procedures at national level, such an option would then imply an equivalent modification of the implementing national regimes. An essential element of this regulatory measure would be the definition of the nature of the services, through the creation of a list of military and security services, modelled on the EU Common Military List. The main advantage of extending the common rules governing arms exports controls to military and security services, however, is that this would exploit the potentialities enshrined in Common Position 2008/944 as regards the definition of the relevant criteria against which the states should assess a licence application. The identification of the parameters represents one of the most challenging issues in the field of exports control,17 as they need to be clear, objective and defensible in judicial review proceedings.18 Among the eight criteria identified by the Common Position, it is important for our purposes to focus on the first two of them: the respect for EU Member or other assistance, including the provision of armed mercenary personnel, related to military activities or to the provision, maintenance and use of items referred to in paragraph 1, to any natural or legal person, entity or body in, or for use in, Libya’ (emphasis added). 14 M Caparini, ‘Domestic Regulation: Licensing Regimes for the Export of Military Goods and Services’ in S Chesterman and C Lehnardt (eds), From Mercenaries to Market (Oxford, Oxford University Press, 2007) 158, 176. 15 See KA Huskey and SM Sullivan, Chapter 16 below; M Cottier, ‘Elements for Contracting and Regulating Private Security and Military Companies’ (2006) 88 International Review of the Red Cross 654. 16 Council Common Position 2008/944, [2008] OJ L335/99. It should be stressed that an export control instrument in regard to PMSCs could be adopted in the framework of the Common Commercial Policy. For further discussions on the various options, see M Gestri, Chapter 3 above, para II.C. 17 See, in this context, the Draft Convention on Private Military and Security Companies, elaborated by the UN Working Group on the Use of Mercenaries (UN Doc A/HRC/15/25). The Draft Convention envisages national licensing regimes, but the text of Art 14 remains rather generic as for the content of the criteria, by providing that state parties ‘tak[e] into account in particular any records or reports of human rights violations committed by the companies, providing and/or ensuring training in international human rights and humanitarian law and robust due diligence measures’. See also ND White, Chapter 1 above. 18 cf UK Foreign Office, ‘Impact Assessment on Promoting High Standards of Conduct by Private Military and Security Companies (PMSCs) Internationally’ (2009).

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States’ international obligations, particularly the sanctions regimes adopted at both UN and EU level, and the respect for human rights and international humanitarian law in the country of final destination. The exercise of drafting the new regulatory measure should be aimed at clarifying the content of the above criteria by adapting them to the specific circumstances of the export of private military and security services. Regarding the criterion of respect for their international obligations, it is worth recalling that EU Member States are required to fully implement within their jurisdiction the principle of effective protection of human rights in relation to home-based PMSCs; this includes a due diligence duty to prevent violations arising from the export of military and security services.19 In addition, states in whose territory PMSCs are incorporated or operate are in the position to ensure respect for IHL, in conformity with Common Article I to the 1949 Geneva Conventions.20 It follows that the decision to deny an export licence should be based on the consideration of different indicators to establish why there would be a risk of serious violations of human rights and international humanitarian law. Such an assessment should include an inquiry on both the private contractor’s record and the attitude of the recipient (state or private entity). For PMSCs, guidance can be found in the indicators already identified by both the Montreux Document21 and by the International Code of Conduct for private security service providers.22 Therefore, the evaluation should cover, inter alia: (a) the past conduct of the PMSC’s personnel, particularly the possible commission of serious crimes, including grave breaches of international humanitarian law; 19 F Francioni, ‘The Role of the Home States in Ensuring Compliance with Human Rights by Private Military Contractors’ in Francioni and Ronzitti (eds), above n 2, 93, 104; O De Schutter, ‘The Responsibility of States’ in S Chesterman and Fisher (eds), Private Security, Public Order: The Outsourcing of Public Services and Its Limits (Oxford, Oxford University Press, 2009) 25, 34. 20 See L Boisson De Chazournes and L Condorelli, ‘Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests’ (2000) 82 International Review of the Red Cross 67: ‘States, whether engaged in a conflict or not, must take all possible steps to ensure that the rules are respected by all, and in particular by parties to conflicts’. In addition, see C Hoppe, ‘Private Conduct, Public Service? State Responsibility for Violations of International Humanitarian Law Committed by Individuals Providing Coercive Services under a Contract with the State’ in MJ Matheson and D Momtaz (eds), Rules and Institutions of International Humanitarian Law Put to the Test of Recent Armed Conflicts (Leiden/ Boston, Martinus Nijhoff, 2010) 411. 21 UN Doc A/63/467-S/2008/636, Annex, ‘Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict’, 17 September 2008. 22 International Code of Conduct for Private Security Providers (2010), available at http://www.icoc-psp.org/uploads/INTERNATIONAL_CODE_OF_CONDUCT_Final_ with_Company_Names.pdf.

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(b) their internal organisation and management, including the selection and vetting of personnel and the existence of an internal monitoring mechanism in case of any incident involving their personnel; (c) the training of the PMSC’s personnel with regard to both the respect for human rights and international humanitarian law and the possession and use of weapons. Regarding the situation in the recipient country, the decision of issuing an export licence should be based on the assessment of the following indicators: (a) the internal situation in the country, in particular whether serious violations of human rights and humanitarian law have been established; (b) the history and track record of the recipient (state or private entity); (c) the existence of a clear risk that the military and security services might be used for internal repression;23 (d) in a situation of armed conflict, the possibility that the provision of services might amount to direct participation in hostilities;24 (e) the risk that the PMSC’s personnel might be involved in the commission of serious violations of humanitarian law. Finally, since there is no doubt that the use of PMSCs is critical in armed conflicts or crisis scenarios, a policy decision needs to be taken on whether the rules on export controls should be limited only to those areas where such situations are taking place and, eventually, how to define the rather broad notion of ‘crisis’.

I I I . P R I VATE C ON TRAC TORS IN EU C R I S I S M AN AGEMEN T OP ERATION S

Though not a military operation, the EUPOL Afghanistan police mission represents an interesting example of the relevance of private contractors in the context of EU crisis management. According to various sources, PSCs have been employed in the context of that mission ‘to assist the mission’s security officer with the protection of mission buildings and EU

23 According to ‘User’s Guide to Council Common Position’, 2008/944/CFSP (Doc 9241/09, 29 April 2009, 39) internal repression ‘includes, inter alia, torture and other cruel, inhuman and degrading treatment or punishment, summary or arbitrary executions, disappearances, arbitrary detentions and other major violations of human rights and fundamental freedoms as set out in relevant international human rights instruments, including the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights’. 24 For the definition of the notion of direct participation in hostilities under the law of armed conflict, see below, next paragraph.

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and local personnel’.25 In addition, EUPOL Afghanistan has interacted with private military contractors in carrying out its mandate: in the field of police training, the police mission has cooperated with three companies hired by the US. Recent analysis has shown how human rights law and humanitarian law may be applicable to private companies within the framework of the CSDP operations, by virtue of a mixture of Member States’ domestic law, international law and EU law.26 Concerning the latter, the incorporation by the EU of the relevant international norms into its legal order has so far resulted in a number of non-binding instruments, which do not directly address the issue of military and security outsourcing, and whose legal effects remain rather ambiguous. Therefore, the EU and the Member States should undertake efforts to develop standards for the employment of private military and security companies in the context of CSDP, for the purpose of preventing possible violations of human rights and humanitarian law.27 EU regulatory action should cover at least three different areas: the provision of private military and security services in peacetime on Member States’ own territory, including training activities;28 the employment of PMSCs by the EU itself (for example through the EU force Commander or the Head of Mission) and by the Member States in the framework of an EU-led crisis management operation; and the resort to private contractors in the same context by third states participating in the missions.29 Apart from any discussion on the most appropriate instrument, whether a Decision on the basis of Article 29 TEU or a non-binding measure, it is important to focus on the possible content of this future EU regulatory action. As regards the definition of the standards for the hiring of private companies by the EU itself and by the Member States, a first element would be identifying to what extent military and security tasks should be outsourced. In the US, the debate regarding the limits to privatisation has focused on the notion of inherently governmental functions, as those activities are ‘so intimately related to the public interest as to require performance by Federal Government employees’.30 25 See ‘Reply by the Council to Written Question by Glynn Ford (PSE) to the Council’, E-3061, 14 July 2008. 26 See generally F Naert, International Law Aspects of the EU’s Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict and Human Rights (Antwerp, Intersentia, 2010) 457–61; ND White and S MacLeod, ‘EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility’ (2008) 19 European Journal of International Law 965. 27 See PRIV-WAR Recommendation no 8. 28 Notably, the European Defence Agency has recently contracted private companies for training services for the military forces of some EU Member States. 29 Bailes and Holmqvist, above n 13, 23. 30 See the Federal Activities Inventory Reform Act of 1998 Pub L No 105–270 § 5(2)(A) 112 Stat 2382 (1998); cf K Huskey and S Sullivan, above n 15, para II.A.i.

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At the EU level, the available options would be providing a general definition of tasks unsuitable for privatisation or the creation of a list of the relevant activities, or a combination of these two approaches. Interestingly, the Draft Convention has also attempted to define the notion of inherently state functions by referring to those which are ‘consistent with the principle of State monopoly on the legitimate use of force’.31 The list of activities which fall within the category is rather broad; it has been stressed that this seems to create some incompatibilities with the more restrictive approach underlying the Montreux Document, which limits outsourcing only in the tasks that IHL assigns to state agents.32 In any case, there seems to be broad consensus among states on the assumption that, in the specific context of armed conflicts, PMSCs’ personnel should be considered civilians and therefore should not take a direct part in hostilities, unless they are incorporated de jure or de facto in the armed forces.33 Hence, the EU might specify that at least the activities covered by the notion of ‘direct participation in hostilities’ should not be outsourced by its Member States.34 A second direction of the EU regulatory action in this field is the development of adequate standards for the award of procurement contracts by the EU itself and its Member States. The procedure for the selection and contracting of PMSCs needs to be governed by the principle of transparency, which implies the establishment of clear selection criteria; the requirements to be set out should pursue the aim of ensuring respect for human rights and humanitarian law.35 A further important tool to achieve this objective is represented by the actual contract with the service provider, which should contain clauses which incorporate relevant international legal standards;36 a set of model contracts may be prepared for the purpose of improving the drafting process. An equally fundamental issue is that of the establishment of specific rules of conduct for PMSCs and the exercise of oversight and control 31

See Draft Convention, above n, Art 2, para i. See ND White, above n 17, para IV.A. See O Quirico, Chapter 5 below. 34 The International Committee of the Red Cross has tried to clarify the meaning and the application of the notion by releasing its Interpretive Guidance in May 2009. The ICRC definition is based on three constitutive elements: threshold of harm, direct causation and belligerent nexus. See N Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL (Geneva, ICRC, 2009). In addition, see M Sossai, ‘Status of PMSCs Personnel in the Law of International Armed Conflict’ in Francioni and Ronzitti (eds), above n 2, 197, 216: the concept of direct participation in hostilities encompasses activities like protecting military objectives from adversary attacks; providing tactical intelligence data (including through interrogation techniques); maintaining or operating weapon systems in the course of complex military operations; and training troops for the execution of a specific military operation. 35 See also Montreux Document, above n 21, good practice no 5. 36 L Dickinson, ‘Contract as a Tool for Regulating Private Military Companies’ in Chesterman and Lehnardt (eds), above n 14, 217. 32 33

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over the activities carried out by the hired contractors. As the PRIV-WAR Policy Recommendations suggest, the regulatory measures could even build on existing acts, such as the Generic Standards of Behaviour for ESDP Operations.37 For the purposes of the present analysis, it is significant that internationally and locally contracted civilian personnel are already included in the category of individuals who should adhere to the standards of behaviour. Furthermore, the document provides guiding principles for a disciplinary mechanism in case of misconduct: EU force Commanders or EU Heads of Mission have full disciplinary jurisdiction over contracted civilian personnel. Finally, though the Generic Standards of Behaviour remain a non-binding instrument,38 ‘the planning documents for every future ESDP operation should contain provisions for [their] implementation’.39 This confirms that the generic regulatory measures on the employment of private contractors should be taken into account in the relevant CSDP instruments setting up the legal framework for EU civilian missions and military operations. Such instruments include, first of all, the basic legal instrument governing each operation, ie a Council decision, adopted on the basis of Article 43 TEU, in conjunction with Article 28. The decision indeed contains provisions on inter alia the mission’s mandate, the command and control relations, the status of forces, and the participation of third states. It is noteworthy that, as regards civilian missions, the relevant joint actions had already envisaged the resort to security contractors.40 Reference to the rules governing the conduct of PMSC personnel might be made also in the Operations Plans (OPLANs), which contain the specifics of the operation. They could include rules on the possession and use of firearms by private contractors. More problematic is the determination of rules of conduct for PMSCs, effective control and accountability for any wrongdoing through the Status of Forces Agreements (SOFAs) and Status of Mission Agreements (SOMAs),41 since at the moment they exclude from their scope of application ‘personnel employed locally and personnel employed by international commercial contractors’.42 A short-term solution would be inserting in the SOFA/ 37 Doc 8373/3/05 REV 3, Generic Standards of Behaviour for ESDP Operations, 18 May 2005. 38 cf G Den Dekker, Chapter 2 above. 39 Generic Standards, above n 37, 4. 40 See Art 11 of the Council Joint Action 2005/190/CFSP of 7 March 2005 on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX, [2005] OJ L62/37. 41 See F Naert, above n 26, 249; D Fleck, ‘Status of Forces in Peace Operations’ in T Gill and D Fleck (eds), The Handbook of the International Law of Military Operations (Oxford Oxford University Press, 2010) 143. 42 See, eg Agreement between the European Union and the Somali Republic on the status of the European Union-led naval force in the Somali Republic in the framework of the EU military Operation Atalanta, Art 1(3)(g), [2009] OJ L33/27; Agreement between the European Union and the Republic of Uganda on the Status of the European Union-led

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SOMA a reference to the relevant CFSP instruments governing the behaviour of PMCS personnel.43 However, it remains in the interest of the EU and its Member States to formulate adequate provisions in future agreements with the receiving states to ensure accountability and supervision over PMSCs’ activities. Finally, the EU may play a role in ensuring compliance with human rights and international humanitarian law by PMSCs which are engaged in EU-led operations as part of the contribution offered by a third state. The modalities of its participation are disciplined in an agreement with the EU:44 though these treaties may be concluded on an ad hoc basis for a specific mission, recent practice has shown a trend towards the negotiation and the conclusion of bilateral participation agreements which establish a framework for the participation of the third state in any future EU crisis management operation.45 Such agreements may either contain clauses devoted to the specific terms of the employment of PMSCs or provide explicit reference to them in the provisions on the chain of command, the exercise of jurisdiction and accountability for any claims arising from the participation of the third state.

I V. P RIVATE C ON TRAC TORS IN H UMAN ITARIAN AID OP ERATION S

A rather neglected issue in the discussion on the role of the EU in the field of regulation of PMSC is related to the increasing utilisation of private firms by major humanitarian actors, including UN agencies and NGOs, to provide security in crisis situations.46 In recent times, the environments in which humanitarian organisations operate have dramatically changed, with a rapid decline of the security of their staff. The European Commission’s Humanitarian and Civil Protection Department (ECHO) has been aware of the issue of the security of humanitarian personnel within the framework of humanitarian aid operations financed by the European Union. On the basis of the

Mission in Uganda, [2010] OJ L221/2. This latter treaty, while it defines ‘personnel employed locally’ as ‘personnel who are nationals of, or permanently resident in, the host state’, does not provide any guidance on the notion of ‘international commercial contractors’. One might argue that it covers all private companies hired within the context of the mission. 43

See PRIV-WAR Recommendation no 8, para 8(b). See A Sari, ‘The Conclusion of International Agreements by the European Union in the Context of the ESDP’ (2007) 56 International & Comparative Law Quarterly 53. 45 F Naert, ‘Legal Aspects of EU Military Operations’ (2011) 15 Journal of International Peacekeeping 218, 232. 46 See A Stoddard, A Harmer and V DiDomenico, The Use of Private Security Providers and Services in Humanitarian Operations (London, Oveseas Development Institute, 2008). 44

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guidelines and standards elaborated in the context of the ICRC47 and the UN,48 ECHO undertook a review of the ‘Standards and practices for the security of humanitarian personnel and advocacy for humanitarian space’. Under this process, ECHO commissioned inter alia a Security Report,49 focusing on how humanitarian organisations manage security, and a Generic Security Guide,50 aimed at providing guidance to improve the security management system. Interestingly, this latter document analyses costs and benefits of hiring PSCs to provide guards in relief operations. While engaging a local private company can have several advantages, including reduced administration, flexibility, reliability, and immediate guard replacement, there are also shortcomings: PSCs ‘usually cost significantly more than employing [humanitarian agencies’] own guards, . . . private security guards sometimes have no training for their role, . . . the loyalty of their staff can be weak’.51 Finally, in only a few extreme and exceptional cases are armed guards deemed necessary and appropriate. The necessary starting point of the present analysis is the legal framework applicable to humanitarian assistance during an armed conflict. When humanitarian organisations resort to private armed security, they do not automatically lose the protection accorded by the relevant provisions of IHL. It should be recalled that states are under duties to respect and protect humanitarian relief personnel and objects, and to allow and facilitate the rapid and unimpeded passage of humanitarian relief, which is impartial in character and conducted without any adverse distinction. Both obligations are regarded by the ICRC as rules of customary international law, applying in all conflicts.52 47 ICRC, ‘Report on the Use of Armed Protection for Humanitarian Assistance’, extract from the working paper submitted jointly by the International Federation and the ICRC at the Council of delegates, Geneva, 1–2 December 1995, 95/CD/12/1; more recently, see DL Roberts, Staying Alive: Safety and Security Guidelines for Humanitarian Volunteers in Conflict Areas (Geneva, ICRC, 2006) 92. 48 UN OCHA, ‘Use of Military or Armed Escorts for Humanitarian Convoys’, Discussion Paper and Non-Binding Generic Guidelines (December 2001). See also ‘Guidelines on the Use of Military and Civil Defence Assets to support United Nations Humanitarian Activities in Complex Emergencies’ (March 2003); ‘Guidelines on the Use of Military and Civil Defence Assets in International Disaster Relief’ (re-launched by UN OCHA in November 2006). 49 ECHO, ‘Report on Security of Humanitarian Personnel: Standards and Practices for the Security of Humanitarian Personnel and Advocacy for Humanitarian Space’ (Brussels, 2004). 50 ECHO, ‘Generic Security Guide for Humanitarian Organisations’ (Brussels, 2004). 51 ibid, 81. Following the first security review in 2004, DG ECHO commissioned other studies to provide further assistance to NGOs: see ECHO, ‘NGO Security Collaboration Guide’ (Brussels, 2006). 52 J-M Henckaerts and L Doswald-Beck (eds), Customary International Humanitarian Law (Cambridge, Cambridge University Press, 2005), vol I, Rule 31. See R Barber, ‘Facilitating Humanitarian Assistance in International Humanitarian and Human Rights Law’ (2009) 91 International Review of the Red Cross 371.

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However, concern was expressed that the employment of commercial entities could compromise the reputation and the impartiality of aid agencies, as the private contractor could be associated and identified with a party to the conflict; this would result in increased risk of harm for the humanitarian operation.53 This may happen, for example, when a PMSC provides services to both civilian and military clients in the same area of operations.54 Regarding the use of private armed guarding, the tasks entrusted to a security supplier do not fall per se within the notion of direct participation in hostilities. The resort by civilians to armed force in personal self-defence is distinct from direct participation, as the former does not satisfy at least one of the constitutive elements of the latter: the ICRC Interpretive Guidance has rightly observed that ‘[t]he causation of harm in individual self-defence or defence of others against violence prohibited under IHL lacks belligerent nexus’.55 A quite different issue is the commitment of the hiring humanitarian organisation to oversee the PMSCs’ performance in order to keep the contracted personnel within the limits of the functions given them, and to avoid the risk of the commission of violent acts amounting, even in a sporadic way, to direct participation in hostilities. Finally, the possibility of private firms performing civil defence functions during an international armed conflict is not precluded by the relevant norms of Protocol I, provided that they are authorised by the competent authorities, which retain control over their activities.56 Against this legal background, the EU, as the world’s largest donor of humanitarian assistance,57 should develop its security policy on the 53 See J Cockayne, Commercial Security in Humanitarian and Post-Conflict Settings: An Exploratory Study (New York, International Peace Academy, 2006) 14. The issue under consideration needs to be situated within the wider context of the role and effectiveness of military assets in humanitarian assistance. See, eg R Rana, ‘Contemporary Challenges in the Civil–Military Relationship: Complementarity or Incompatibility?’ (2004) 86 International Review of the Red Cross 565. 54 B Perrin, ‘Humanitarian Assistance and the Private Security Debate: An International Humanitarian Law Perspective’ (11 December 2008) 27, ssrn.com/abstract=1315006. 55 ICRC, Interpretive Guidance, above n 34, 61. 56 cf HP Gasser, ‘Protection of the Civilian Populations’ in D Fleck (ed), The Handbook of Humanitarian Law in Armed Conflicts (Oxford, Oxford University Press, 2008) 237, 263. 57 It is interesting that the US federal Commission on Wartime Contracting in Iraq and Afghanistan held a hearing in April 2011 to evaluate the progress of the US Agency for International Development (USAID) as concerns its contracting policy. During that meeting, the question of security contractors in Afghanistan was posed. USAID Administrator Rajiv Shah affirmed that ‘of all US engagement in Afghanistan, the largest cohort of private security contractors are employed by the US military to support fixed-point installations, convoys, and training sites for ANSF (Afghan National Security Forces) and others. USAID and our other civilian partners also require private security contractors, particularly for specific types of projects, like larger infrastructure construction projects. . . . About three or four months ago, [their number] was closer, I think, to 8,000 or 9,000’. See hearing transcript, 9, available at www.wartimecontracting.gov/docs/hearing2011-0401_transcript.pdf.

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basis of the following two questions: first, in what circumstances should ECHO staff and EU-financed humanitarian actors take the decision to hire a PSC?58 Second, what criteria and procedures should these entities adopt for the award of service contracts to provide security for a humanitarian operation?59 At the EU level, the essential legal framework is constituted by the humanitarian principles of humanity, impartiality, neutrality and independence, which are now incorporated within the EU legal order.60 Such principles are also reflected in the European Consensus on Humanitarian Aid, signed by the Council, European Parliament and European Commission in 2007,61 which is the comprehensive policy framework governing EU humanitarian aid response.62 One of the most effective tools available for providing guidance on the employment of PSCs in humanitarian aid operations financed by the EU should be the framework partnership agreement, which is the contractual instrument that the Commission concludes with the international organisations and NGOs. In particular, its Annex IV sets out standards and procedures to be followed for the award of procurement contracts, including those for the provision of services.63 It is significant that ECHO has just published a series of Humanitarian Aid Guidelines for Procurement, which are aimed at creating common standards and 58 See recently, Humanitarian Practice Network, Operational Security Management in Violent Environments: Good Practice Review 8, Revised Edition (London, Overseas Development Institute, 2010) 286. 59 See PRIV-WAR Recommendation no 9. 60 After the entry into force of the Lisbon Treaty, see Art 214 TFEU. The EU humanitarian aid operations are governed by Council Regulation 1257/96, [1996] OJ L163/1. See M Broberg, ‘Legal Basis of EU Council Regulation 1257/96 Concerning Humanitarian Aid: Time for Revision?’ in H-J Heintze and A Zwitter (eds), International Law and Humanitarian Assistance: A Crosscut Through Legal Issues Pertaining to Humanitarianism (Berlin/ Heidelberg, Springer-Verlag, 2011) 71. Generally see U Khaliq, Ethical Dimensions of the Foreign Policy of the European Union. A Legal Appraisal (Cambridge, Cambridge University Press, 2008) 404–46. 61 Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the European Commission, ‘The European Consensus on Humanitarian Aid’, [2008] OJ C25/1: ‘The “humanitarian space” that is needed to ensure access to vulnerable populations and the safety and security of humanitarian workers must be preserved as essential preconditions for the delivery of humanitarian aid, and for the EU and its partners in the humanitarian field to be able to get assistance including protection to crisis-hit people, based on respect for the principles of neutrality, impartiality, humanity and independence of humanitarian action, enshrined in International Law, in particular International Humanitarian Law’. 62 Regarding the issue of the role of the military in humanitarian assistance, the European Consensus on Humanitarian Aid (para 61) states: ‘In order to avoid a blurring of lines between military operations and humanitarian aid, it is essential that military assets and capabilities are used only in very limited circumstances in support of humanitarian relief operations as a “last resort”’. 63 Annex IV, Rules and procedures applicable to property, supply, works and service contracts awarded within the framework of humanitarian actions financed by the European Union, 1 December 2009.

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spreading good practices among humanitarian organisations.64 Though there is no explicit reference in this document to security services, other elements are of interest for our purposes. The Guidelines are based on the principle of ethical procurement, and enumerate a number of factors to be taken into account in the evaluation of the ‘ethical behaviour of contractors’: working conditions, social rights, environmental aspects, the humanitarian principle of neutrality, and ethical transport and cargo.65 A first observation could be made with regard to the generic reference to human rights and international humanitarian law: one would have expected more emphasis on specific criteria that the contractor must satisfy. Secondly, the Guidelines recognise the peculiarities of one specific service provided by private firms: the transport for humanitarian aid. Interestingly, the document identifies certain factors that need to be taken into account in the procurement process: humanitarian organisations should not deal with ‘a contractor with known links to one of the parties to a conflict, such as a company that supplies or transports arms or other supplies to a military actor’, as well as ‘a contractor known to transport drugs, arms or other illicit or illegal supplies or which conducts clandestine or rendition flights which may be contrary to international humanitarian law’.66 In conclusion, since it is already envisaged that the Humanitarian Aid Guidelines for Procurement ‘may be reviewed in order to update their content and to incorporate any questions of general interest which may emerge’, the document should arguably better reflect and incorporate the relevant international legal standards in the field of humanitarian assistance, in particular by establishing clearer indicators that humanitarian actors should use in the procedures for selecting private contractors.

V. P OL I T I CAL DIALOGUE AN D HUMAN R I G H T S I N E U DEV ELOP MEN T C OOP ERATION AND I N THE C ON TEX T OF THE C FSP

Another possibility for the EU to exercise its influence on PMSC regulation at the international level is through its political dialogue with third states. Over the years, the Union has established such dialogues with a myriad of states and international organisations, both as part of its development cooperation and in the context of the CFSP. The strong ties between the EU and other global actors, including the US, Russia and 64 Guidelines for the award of Procurement Contracts within the framework of Humanitarian Aid Actions financed by the European Union, 31 May 2011. 65 ibid, 17. 66 ibid, 18.

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China, on the one hand, and its long-standing cooperation with a large number of developing countries, in particular the African, Caribbean and Pacific (ACP) states, on the other, provide a unique basis for the promotion of the EU’s values, including the respect of human rights and humanitarian law (A). It is also worth examining how the existing instruments of development cooperation and bilateral dialogues with major partners held in the context of the CFSP provide opportunities for engaging in consultations on the regulation of PMSCs as well (B). Finally, the possibility for the EU to conclude international agreements on human rights will be considered (C).

A. Development Cooperation The EU’s development cooperation is composed of several instruments, which have either a geographical or regional scope, or a thematic orientation.67 (i) Regional Instruments (a) The Cotonou Agreement Regarding the regional instruments, the cooperation with the ACP states is governed by the Cotonou Partnership Agreement (formerly the Lomé Conventions). This agreement, signed by 78 ACP states, the EU and the EU Member States, constitutes the legal framework for the main development cooperation activities financed by the EU for the period 2000–20, with reviews foreseen every five years.68 A notable aspect of the EU–ACP cooperation is the inclusion of human rights and security considerations as an integral part of the partnership. In this regard, the Cotonou Agreement restates the pre-existing ‘essential elements’ of respect for human rights, democratic principles and the rule of law, and introduces a political conditionality in these areas, which is also referred to as ‘human rights conditionality’. During the reviews of the agreement in 2005 and 67 As regards the thematic instruments, the European Instrument for Democracy and Human Rights (EIDHR) was created for the promotion of human rights and democracy in non-EU countries. It emphasises the role of civil society in promoting human rights and democratic reform. Assistance under EIDHR complements other EU tools implementing policies for democracy and human rights, and can provide aid where no established development cooperation exists. 68 For a detailed discussion of EU human rights policies see A Williams (ed), EU Human Rights Policies. A Study in Irony (Oxford, Oxford University Press, 2004); E Fierro, The EU’s Approach to Human Rights Conditionality in Practice (The Hague, Nijhoff, 2003). For an analysis of the EU’s trade and development policy, see L Bartels, ‘The Trade and Development Policy of the European Union’ in Cremona (ed), above n 1, 128.

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2010, new provisions were adopted in the areas of, inter alia, political dialogue and security.69 The political or human rights conditionality aims to reinforce the commitments from ACP states in these areas and makes compliance with the above-mentioned elements a condition for continued cooperation and support under the agreement.70 Moreover, the political dialogue between the ACP states and the EU is foreseen as an important component of the partnership, with the objective ‘to exchange information, to foster mutual understanding, and to facilitate the establishment of agreed priorities and shared agendas’.71 Article 8 of the Cotonou Agreement states that ‘[t] he Parties shall regularly engage in a comprehensive, balanced and deep political dialogue leading to commitments on both sides’. The dialogue is meant to focus on specific political issues of mutual concern such as the arms trade and excessive military expenditure, and it will also encompass a regular assessment of the developments concerning inter alia, the respect for human rights. Moreover, ‘[b]roadly based policies to promote peace and to prevent, manage and resolve violent conflicts shall play a prominent role in this dialogue’.72 Since 2010, ‘the dialogue in this context shall fully involve the relevant ACP regional organizations and the African Union, where appropriate’.73 As regards security, the Cotonou Agreement recognises a direct relationship between development on the one hand and sustainable peace and security on the other. The parties commit themselves to pursue an active, comprehensive and integrated policy of peace-building and conflict prevention and resolution. They acknowledge that new or expanding security threats must be addressed, including piracy and the trafficking of people, drugs and weapons.74 Among other activities, they also agree to cooperate in the prevention of mercenary activities,75 and in addressing problems of child soldiers and of violence against women and children.76 The increased importance attached to security issues 69 Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States of the One Part, and the European Community and its Member States, of the Other Part, signed in Cotonou, Benin on 23 June 2000, [2000] OJ L317, 3–353 (Cotonou Agreement). 70 ibid, Arts 9 and 96 (consultation procedure in case of non-respect of these essential elements, with the ultimate possibility of suspending the agreement). 71 ibid, Art 8(2). 72 ibid, Art 8(5). 73 In November 2007, a first Africa–EU Summit was held in Lisbon, which led to the adoption of the Joint Africa–EU Strategy. In the context of that strategy, the Africa–EU Platform for Dialogue on Governance and Human Rights was launched in November 2010. 74 Above n 69, Art 11(1) as revised in 2010. See also S Smis and S Kingah, ‘The Utility of Counter-Terrorism and Non-Proliferation of WMD Clauses under the EU–ACP Revised Cotonou Agreement’ (2008) 57 International and Comparative Law Quarterly 149. 75 ibid, Art 11(3)b. This point was introduced during the 2005 revision. 76 ibid, Art 11(3). The reference to child soldiers was introduced in 2005; the reference to violence against women and children in 2010.

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explicitly paves the way for consultations on a wide range questions that have a bearing on security in the countries concerned. These modalities clearly allow the EU to raise issues related to PMSCs, and the prevention of human rights and IHL violations by these companies or their employees, with its ACP partners. In practice, ACP states—in particular the African states—often act as host states of private contractors, and in some cases also as home states (eg South Africa). They are bound to comply with the human rights obligations under international and regional instruments, including the African Charter on Human and Peoples Rights, to prevent violations and to provide an effective remedy in case such violations occur.77 Moreover, issues raised by the use of PMSCs are directly related to security considerations. Since these contractors are regularly employed to provide security in crisis situations, they may become involved in violence entailing a risk of human rights violations. Considering that both compliance with human rights and the explicit commitment to address new threats as part of a comprehensive policy in the field of security are key elements of the EU–ACP partnership, issues related to the regulation of PMSCs with the aim of ensuring their compliance with HRL would fall within the scope of this cooperation. Therefore, the EU should consider including this topic in its political dialogue with the ACP partners, addressing the risks posed by PMSCs, and discussing the need and possible content of regulatory measures for these companies when they perform services within their territory.78 This dialogue should also address the involvement of the EU and ACP states in discussions at the international level, such as the initiative taken in the context of the UN Human Rights Council with a view to the elaboration of an international convention on the regulation and oversight of PMSCs. This would be in direct compliance with Article 8(2) of the Cotonou Agreement, according to which ‘This dialogue shall facilitate consultations and strengthen cooperation between the Parties within international fora as well as promote and sustain a system of effective multilateralism’. If PMSC-related issues aiming to ensure their compliance with human rights and IHL were to be included in the EU–ACP political dialogue, the question could be asked of whether non-compliance with commitments taken by a particular ACP state in this field would have any consequences. In particular, one may wonder if such non-compliance could lead the EU to launch consultations in accordance with Article 96 77 For an examination of the obligations of host states of PMSCs under HRL, see C Bakker, ‘Duties to Prevent, Investigate and Redress Human Rights Violations by Private Military and Security Companies: the Role of the Host State’ in Francioni and Ronzitti, above n 2, 130. 78 See PRIV-WAR Recommendation no 11.

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of the Cotonou Agreement and, if these talks did not result in compliance with these commitments, to suspend the cooperation. The criteria for such consultations are formulated in quite general terms. According to Article 96(2), a party to the Agreement can invite another party to hold such consultations if, despite the political dialogue conducted regularly between the parties, it considers that ‘the other Party has failed to fulfil an obligation stemming from respect for human rights, democratic principles and the rule of law’. The consultations shall focus on the measures taken or to be taken by the party concerned to remedy the situation. In the event that the consultations do not lead to a solution acceptable to both parties, if consultation is refused, or in cases of special urgency, appropriate measures may be taken. These measures must be taken in accordance with international law and be proportional to the violation. As the Agreement states, ‘[i]t is understood that suspension would be a measure of last resort’.79 Despite this general wording, in practice the consultation procedure is only invoked in situations of serious human rights violations, and especially when democracy and the rule of law is threatened. It has led to a (partial) suspension of the cooperation only in a few cases, in particular after a coup d’état.80 Considering that the explicit aim of the EU–ACP partnership is to solve any issues that arise through their political dialogue and to resort to the formal consultation procedure only in exceptional circumstances, it seems rather unlikely that non-compliance by an ACP state to commitments taken regarding private contractors would trigger such a process. However, if human rights abuses by PMSCs were to occur within the territory of an ACP state and this state failed to prevent such violations and to provide an effective remedy in accordance with its human rights obligations, this situation would certainly be a topic that the EU should address in its dialogue with the state concerned. If this failure were part of a broader pattern of lacking respect for human rights, the EU could take it up as an additional element for evaluating whether Article 96 consultations are appropriate. (b) Other Regional Instruments Besides the cooperation with ACP states, the EU has also developed an increasingly important development cooperation relationship with countries in Latin America and Asia, especially since the accession of Spain and Portugal to the EU in 1986. With respect to Asia, the most important examples of cooperation are the Association of Southeast Asian Nations (ASEAN), and the dialogue with most Asian States in 79 80

Cotonou Agreement, Art 96(2)c. See Fierro, above n 68, 309–43. Examples include Togo, Cote d’Ivoire, Fiji and Haiti.

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the Asia–Europe Meeting (ASEM).81 These instruments also allow for a dialogue in the field of human rights and security, albeit in a less explicit and formalised way than the Cotonou Agreement. In the context of ASEM, human rights and democracy have indeed been addressed, but, as one commentator has put it, ‘this was in the context of the longstanding ASEM rule of not letting political issues impede progress on economic relations’.82 The EU’s relations with Latin America have developed in a number of dialogues at biregional level, as have its relations with specific subregions (Mercosur, the Andean Community and Central America) and individual countries (such as Chile) with whom it has signed Association Agreements. Strategic partnerships were launched with Brazil (2007) and Mexico (2010). Whereas governance and institution building are among the main development goals and priorities, human rights are not explicitly included as an overarching priority for EU development cooperation in this region. However, as will be shown below, dialogues with several countries in this region, as well as in other parts of the world, are held in the context of ‘human rights dialogues’. (ii) Thematic Instruments In addition to the regional instruments for development cooperation, the EU has also established a number of thematic instruments, through which focused assistance is offered to third states in a specific field. In 2006, the European Instrument for Democracy and Human Rights (EDHRD) was created for the promotion of human rights and democracy in non-EU countries. The EDHRD aims to strengthen the role of civil society in promoting human rights and democratic reform, and to support actions in areas covered by EU Guidelines, including human rights defenders, children and armed conflicts, and violence against women. Financial support is mainly provided to civil society organisations for projects pursuing these objectives. It might be possible for NGOs investigating and reporting on human rights violations in a non-EU state to request funding under this instrument to specifically look into alleged violations by PMSCs as well, if there are signs of abuses by such companies. In the context of the Instrument for Stability (IfS), there may be scope for technical assistance in the field of PMSC regulation. The IfS is a strategic tool designed to address a number of global security and development challenges to complement geographic instruments. It has both 81 For a comprehensive overview of the EU’s development cooperation policies, see N Schrijver, ‘The EU’s Development Cooperation Policy’ in M Telò (ed), The European Union and Global Governance, GARNET Series: Europe in the World (London, Routledge, 2010) 176. 82 R Youngs, The EU’s Role in World Politics: a Retreat from Liberal Internationalism (London, Routledge, 2010) 72, referring to discussions held in 2006 and 2009.

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a short-term and a long-term component. The short-term component (‘crisis response and preparedness’) aims, inter alia, to prevent conflict and to support post-conflict political stabilisation. Activities under this component include support for the development of democratic and pluralistic state institutions. For the long-term component, one of the main priorities is enhancing pre- and post-crisis preparedness capacity building. Given the regular use of PMSCs in crisis and post-crisis situations, technical assistance to the countries where these contractors are employed may be appropriate, in order to help the authorities adopt administrative and operational measures to enable the host state to exercise control over these companies’ activities in accordance with its obligations under HRL and IHL.

B. Political Dialogue in the Context of the CFSP As part of the CFSP, the EU maintains a continuous dialogue with its main partners on the global scene. This dialogue takes place either on a bilateral basis, or with a group of states. (i) Bilateral Dialogues Among the bilateral dialogues, the transatlantic relationship remains a cornerstone of the EU’s foreign policy. According to the Transatlantic Agenda, the main goals of this partnership include ‘[p]romoting peace and stability, democracy and development around the world’ and ‘responding to global challenges’.83 The Joint Statement released after the EU–US Summit held on 20 November 2010 stated that the two parties welcomed their deepening partnership ‘on a wide range of trans-national security issues’ and that ‘[t]his partnership is founded on our conviction that respect for fundamental rights and freedoms and joint efforts to strengthen security cooperation are mutually reinforcing’. They agreed to work together ‘to tackle new threats to the global networks upon which the security and prosperity of our free societies increasingly depend’.84 This statement clearly confirms that questions related to the regulation of private contractors could be taken up in the transatlantic dialogue. Since the US has actively participated in two international regulatory initiatives regarding PMSCs (the Montreux Document, adopted in 2008, and the International Code of Conduct for Private Security Providers, adopted in 2010), it has shown a clear commitment towards enhancing transparency, monitoring and oversight related to the operations of such 83 The New Transatlantic Agenda, 1995, available at www.eeas.europa.eu/us/docs/ new_transatlantic_agenda_en.pdf. 84 EU–US Joint Statement, Lisbon, 20 November 2010, 16726/10, PRESSE 315.

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companies, and to improving accountability for abuses. This has also been translated into concrete action within the US government, which has adopted specific implementary measures at the national level.85 Given the active role and experience of the US in this field, and the emerging interest in this topic at the EU level, including it in the transatlantic dialogue would be an appropriate step. In the EU dialogue with Russia, both security and human rights are essential points. In the area of external security, there has been some concrete cooperation in the area of crisis management: Russia contributed to the EU CSDP military operation EUFOR Tchad/RCA until the termination of the mission in March 2009, and there has also been coordination with the maritime CSDP mission EUNAVFOR Atalanta in the fight against piracy off the coast of Somalia.86 The legal basis for EU relations with Russia is the Partnership and Cooperation Agreement (PCA), which came into force on 1 December 1997 for an initial duration of 10 years, and which has been automatically extended beyond 2007 on an annual basis. The EU is currently working with Russia on a new agreement to replace the PCA. At the last EU–Russia Summit, held on 9–10 June 2011, human rights and the rule of law were among the issues discussed, but they remain delicate topics. Nevertheless, since securityrelated issues form part of the dialogue, the question of PMSC regulation could in principle be included in the agenda. The same could be said for the political dialogue with other states, in accordance with the specificity of the relationship and with the practice of that state in terms of employing PMSCs or hosting them on their territory. Furthermore, consultations on PMSC regulation could also be taken up in the framework of the so-called ‘human rights dialogue’ between the EU and third states. Such a dialogue, which aims to address questions related to human rights and their implementation in the third state concerned, can have their legal basis in a bilateral agreement, such as a PCA, or in an agreement with several states. These agreements generally include a human rights clause, confirming the commitment of the parties to respect human rights, democratic values and the rule of law. Over the years, such clauses have increasingly been combined with some form of conditionality, whereby the cooperation under the agreement may be revised or suspended in the case of non-compliance with the principles. In this regard, it is interesting to note that in 2009 the EU launched a local human rights dialogue with, inter alia, Colombia. Considering that PMSCs are actively engaged in the Colombian internal armed conflict, as 85

See Huskey and Sullivan, above n 15. Council of the European Union, ‘Annual Report of the High Representative of the Union for Foreign Affairs and Security Policies to the European Parliament on the Main Aspects and Basic Choices of the CFSP’ (June 2010) 1831-033, available at http://www. consilium.europa.eu/uedocs/cms_data/librairie/PDF/EN_PESC%202009_web.pdf. 86

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well as in the campaigns against the production and export of drugs, it could be argued that the occurrence of human rights incidents involving private contractors and the continued impunity for such acts should also be addressed as part of the human rights dialogue.87 (ii) Political Dialgue with a Group of States: The European Neighbourhood Policy Apart from the multilateral frameworks already discussed in relation to the EU development cooperation, an important example of a structured relationship with a group of states is the European Neighbourhood Policy (ENP). The ENP was developed in 2004, with the objective of avoiding the emergence of new dividing lines between the enlarged EU and its neighbours and instead strengthening prosperity, stability and security. This ENP framework involves the 16 closest neighbours of the EU.88 While it consists primarily of a bilateral policy between the EU and each partner country, the ENP also encompasses regional and multilateral cooperation initiatives: the Eastern Partnership (launched in 2009), the Euro-Mediterranean Partnership, formerly known as the Barcelona Process (relaunched in 2008), and the Black Sea Synergy, initiated in 2008. In May 2011, the High Representative of the Uniion for Foreign Affairs and Security Policy proposed a new strategy for the ENP as a response to the recent developments in the regions concerned.89 In this context, it is envisaged to further strengthen the human right dialogues at the bilateral level. Security issues will also be part of the continuous dialogue, with a view to addressing new challenges and responses to crisis situations. Considering the security concerns in several of the states concerned, the employment of PMSCs is already taking place and may well increase in the near future. Therefore, inclusion in the ENP framework of the issues surrounding their regulation and the due diligence obligations of the host states and the home states and contracting states of private contractors would be appropriate.

87 See A Perret and I Cabrera, Chapter 18 below. See also the EEAS report ‘Human Rights and Democracy in the World: Report on EU Action July 2008 to December 2009’, available at http://www.eeas.europa.eu/human_rights/docs/2010_hr_report_en.pdf. 88 Algeria, Armenia, Azerbaijan, Belarus, Egypt, Georgia, Israel, Jordan, Lebanon, Libya, Moldova, Morocco, Occupied Palestinian Territory, Syria, Tunisia and Ukraine. 89 Joint Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘A New Response to a Changing Neighborhood’, COM(2011) 303 final, 25 May 2011.

The Role of EU External Relations 101 C. The EU and International Human Rights Instruments Finally, it should be noted that the EU, as an entity having legal personality under international law, can conclude international agreements and become a party to international instruments, including in the field of human rights. The EU’s accession to the European Convention on Human Rights (ECHR) as foreseen in Article 6(2) of the TEU will have significant consequences for the EU’s obligations to respect and ensure respect of human rights, including by private actors such as PMSCs when employed by the EU itself.90 However, besides the ECHR, which is general in scope, the EU also has the possibility of concluding an international instrument of a more specific nature. A precedent in this regard is the UN Convention on the Rights of Persons with Disabilities, which the EU ratified on 23 December 2010. The legal bases for the EU to conclude this convention, which has a specific and limited personal scope, were two provisions of the first pillar, Articles 13 (specifically allowing EC action to combat discrimination on the ground of disability) and 95 TEC (harmonising measures in the context of the Internal Market). With the Lisbon Treaty, the EU’s legal capacity has been confirmed (Article 47 TEU). Moreover, Article 37 TEU states that the EUI can conclude international agreements with one or more States or international organizations in areas covered in Chapter 2 of the TEU, regarding the CFSP. Article 24(1) TEU states that ‘The Union’s competence in matters of CFSP shall cover all areas of foreign policy and all questions relating to the Union’s security’. According to Article 23 TEU, the Union’s action on the international scene shall pursue the objectives laid down in Chapter 1 TEU, which are set out in Article 21 of this Treaty. Thus, it could be argued that the EU may also conclude an international agreement with the aim to ‘consolidate and support democracy, the rule of law, human rights and the principles of international law’ (Article 21(2b) TEU). A legal basis for concluding such a convention could then be Articles 37 and 24 TEU, in conjunction with Articles 23 and 21 TEU.91 Therefore, the EU could in theory consider becoming a party to an international convention on PMSCs, aiming to ensure their compliance with human rights. This would entail that the convention in question would be binding for the EU itself—eg when employing PMSCs for CSDP missions or for protecting its humanitarian aid activities—but also on 90

See Kalnina and Zeltins, above n 8. It should be noted, however, that, if the primary purpose of the convention were to regulate the services of PMSCs more broadly, a legal basis in the TFEU might be more appropriate. However, if its main purpose is to prevent violations of human rights and IHL by PMSCs, a legal basis in the TEU provisions regarding the CFSP would arguably be more adequate, possibly in combination with a basis in TFEU. 91

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the EU Member States. Cf Article 216 TFEU (2): ‘Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.’ The modalities for concluding such agreements are outlined in Article 218 TFEU. Since decisions in the context of the CFSP require unanimity, unless provided otherwise (Article 31 TEU), such a step could only be envisaged if there was a strong political will among the Member States. In May 2011 the EU has cautiously started to engage in international consultations in the context of the United Nations Human Rights Council on the Draft of a Possible Convention on Private Military and Security Companies.92 For various reasons, both of a political and a conceptual nature, the EU Member States have generally adopted a negative attitude towards this initiative. One of the main reasons for this attitude was the fact that proposals for such a convention were developed in the context of the HRC Working Group on the Use of Mercenaries, and that a link was initially upheld between mercenaries and PMSCs. Moreover, there are still doubts among EU countries as to whether the issue of PMSCs should be regulated at the universal level at all, considering the different approaches regarding the question of which functions can be outsourced, and which tasks are inherently governmental functions and therefore cannot be outsourced to private actors. Considering the EU’s role as an employer of PMSCs itself, and the fact that the consolidation and support of human rights is among the Union’s principal objectives for its external action, participation in the discussions about the desirability and possible content of an international convention in this field would be a logical step. By playing an active role in the discussion, the EU could influence the direction of the debate and perhaps contribute to overcoming the above-mentioned concerns. Moreover, if an international convention is ultimately adopted and the EU were indeed to become a party to it alongside the Member States, this instrument would provide an additional legal argument in its political dialogue with third states to comply with the terms of this convention in order to ensure respect for human rights and IHL by private contractors. Indeed, as convincingly argued with regard to the UNCRDP, the EU may consider ‘the invocation of erga omnes partes obligations of other parties . . . as a legal device complementing the political tools of its policy for the promotion and protection of human rights worldwide’.93 Participation of the EU in the negotiations for such an instrument would 92

See also ND White, above n 17. D Zaru and M Zuber, ‘The EU as a Party of the Convention on the Rights of Persons with Disabilities: Implications for the Coherence of Internal and External EU Human Rights Policies’ in W Benedek, F Benoît-Rohmer, W Karl and M Nowak (eds), European Yearbook on Human Rights 2010 (Vienna, Neuer Wisssenschaftlicher Verlag, 2010) 169, 180. 93

The Role of EU External Relations 103 also contribute to enhancing consistency between the EU’s internal and external policies in the field of human rights.

V I . C ON C LUSION S

This chapter argues that the external action of the EU provides ample scope for promoting the regulation of PMSCs in third states. In particular, the CFSP offers possibilities for either expanding existing Common Positions (such as those concerning the export of military goods) or adopting new decisions in this field. Also in the context of the CSDP, further action could be taken to ensure compliance with human rights and IHL by PMSCs when they are used as part of EU missions. In the context of its humanitarian aid operations, the EU Humanitarian Aid Guidelines for Procurement should better reflect the relevant international legal standards in the field of humanitarian assistance, in particular by establishing clearer indicators that humanitarian actors should use in the procedures for the selection of private contractors. Furthermore, the EU development cooperation instruments, in particular the Cotonou Agreement, include specific provisions aimed at a political dialogue between the EU and ACP states both on human rights and on security issues, which would certainly allow for consultations on the human rights considerations related to the employment of private contractors within their territory. The EU also has the option of including the issue of PMSC regulation in its political dialogue with third states, if this is considered appropriate. This could be particularly useful in the transatlantic dialogue, considering the important role of the US, both in terms of employing PMSCs and in its recent regulatory steps aimed at increasing transparency and accountability. Finally, by participating in the ongoing discussions in the context of the UN Human Rights Council on a possible international convention on PMSCs, the EU could influence international normative developments in this field, while at the same time ensuring improved coherence between its internal and external human rights policies. Considering that the aims of supporting human rights and the principles of international law are among the overarching objectives of the EU’s external action, it would be difficult to justify inaction in the face of the risks posed by the growing use of PMSCs and the increasing demand for regulation and accountability from civil society.

5 A Comparative Overview of European and Extra-European National Regulation of Private Military and Security Services OTTAVIO QUIRICO

I . I NTRODUC TION

T

HE CONTEMPORARY PERIOD has been defined as one characterised by the ‘corporatisation’ of security services at the transnational level.1 Overall, security services cover a wide spectrum of activities, which can take place in war and non-war contexts and have as a common denominator the potential involvement in the use of force.2 In non-war contexts they include activities consisting in the protection of goods and persons, such as street patrol and crime prevention. In war contexts, in addition to these practices, specific activities relating to the military exist, such as combat support, military advice and training. This paper sketches a critical overview of national regulation for services provided by private military and security companies (PMSCs) in a number of EU Member States and third countries.3 The purpose is to 1 F De Londras, ‘Privatized Sovereign Performance: Regulating the “Gap” between Security and Rights?’ (2011) 38 Journal of Law & Society 96, 102–03; D Avant, The Market for Force: The Consequences for Privatizing Security (Cambridge, Cambridge University Press, 2005) 26; PW Singer, Corporate Warriors: The Rise of the Privatized Military Industry (New York, Cornell University Press, 2003) 40. 2 On the use of force as a distinctive feature of security services, see C Ortiz, Private Armed Forces and Global Security: A Guide to the Issues (Santa Barbara/Denver/Oxford, Praeger, 2010) 48; E Krahmann, ‘Security: Collective Good or Commodity?’ (2008) 14 European Journal of International Relations 379, 381–83. 3 By ‘PMSCs’ we refer to private companies that might provide both security and military services, by ‘PSCs’ we mean companies that provide just security services and by ‘PMCs’ we intend companies that provide just military services. For the purposes of this overview, within the EU we take into account in particular the regulation of Belgium, Czech Republic, Estonia, France, Finland, Germany, Italy, Latvia, Lithuania, the

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highlight analogies, differences and problematic issues in the regulatory framework of the different legal orders taken into account. A short perusal of national regulatory initiatives in the field of security services shows that private companies have long operated in non-war contexts, with understandable differences from state to state.4 By contrast, military services have been traditionally provided worldwide mainly by state agents, so that the related rules have not been shaped to address private enterprises. This is confirmed by the fact that private soldiers have been, and to a large extent still are, considered mercenaries.5 The scenario radically changed with the recent breakthrough of private enterprises providing security services relating to the military, for instance Xe Services LLC, Sabre International Security and Dyncorp, which operate in topical contexts such as Iraq and Afghanistan.6 Thus, the analysis of national regulation in the field concerns, on the one hand, general initiatives targeting private security services, and, on the other, specific initiatives targeting private military services. With respect to the former, it is crucial to understand to what extent legislation governing security services is apt to regulate private military activity. In other words, it is important to see whether or not rules traditionally addressing security can also encompass the military in a coherent way. With respect to the latter, it is interesting to study, compare and evaluate new ad hoc initiatives and their evolution. Thus, specific regulatory regimes targeting the military must be contextualised in order to highlight their coherence and completeness. The study, which is based on national reports included in this volume as well as additional sources, follows a simple temporal pattern, which begins with the ‘constitutive’ moment of PMSCs and ends by addressing the issue of ‘responsibility’. Within the framework of primary rules, the overview deals with the limits of outsourcing, the licensing regime, the hiring contract and the activity of PMSCs and their employees. Within the framework of secondary rules, attention is paid to monitoring and relevant issues of liability. When necessary, the picture is complemented through reference to self-regulatory initiatives. National regulation, Netherlands, Portugal, Spain, Sweden and the UK. Outside the EU we specifically analyse the regulation of Afghanistan, Angola, Australia, Brazil, Canada, Colombia, Iraq, Israel, Russia, South Africa and the US. For a first approach to the regulation of PMSCs in EU Member States, see E Krahmann, ‘Regulating Military and Security Services in the EU: Existing and Future Controls’ (Turin, ECPR SGIR, 2007) 13–14, available at turin.sgir.eu/ uploads/Krahmann-krahmann_turin_paper_pmc_regulation.pdf. 4

See www.privatesecurityregulation.net. M Mancini, F Ntoubandi and T Marauhn, ‘Old Concepts and New Challenges: Are Private Contractors the Mercenaries of the Twenty-first Century?’ in F Francioni and N Ronzitti (eds), War by Contract (Oxford, Oxford University Press, 2011) 321. 6 AC Cutler, ‘The Legitimacy of Private Transnational Governance: Experts and the Transnational Market for Force’ (2010) 8 Socio-Economic Review 157, 157–58. 5

National Regulation of Private Military and Security Services 107 which is more or less developed in different countries, is presented by taking into account the position of the ‘home’ state, ie the state where PMSCs are incorporated; the territorial state, ie the state where PMSCs provide their services; and the hiring state. Any link between national, regional and international regulation is disentangled when necessary to understand the national regulatory framework.

I I . OUTSOURC IN G LIMITS

The possibility of outsourcing security services to private enterprises varies greatly from state to state, depending in particular on the perception of security and the military as a public monopoly or a competitive market. In the US, where the different federal states have long adopted their own legislation for the provision of security services by private entities, a multitude of private firms are engaged in police services, especially in the domestic context.7 In the wake of this tradition, after 9/11 the US began to also resort largely to private firms for the provision of military services in conflict areas, in particular Iraq and Afghanistan. Initially, PMSCs performed support activities such as maintenance, transportation of supplies and construction of facilities for military personnel, but they soon switched to physical protection on the ground. The types of functions that can be contracted by US governmental agencies are defined by the Office of Management and Budget Circular No A-76 (Performance of Commercial Activities),8 which negatively provides that only ‘inherently governmental’ activities cannot be outsourced. Such a parameter is nevertheless vague and hardly useful to establish a clear distinction,9 so that it basically creates discretionary power for allocating services to PMSCs. At best, the Circular advises agencies to weigh the likelihood of resort to (deadly) force in public or uncontrolled areas.10 In other countries, the possibility of resorting to PMSCs’ services is more controversial. Among common law countries, Australia, where police services have traditionally been exercised by private contractors, has a cautious approach to the range of activities that can be devolved to PMSCs and traditionally tends to exclude the outsourcing of the 7 See, eg the Maine Revised Statutes (1981), Title 32; New Hampshire Statutes (1977), ch 106-F. 8 White House Office of Management and Budget (OMB) Circular No A-76, ‘Performance of Commercial Activities’ (Washington, DC, 29 May 2003). See also, more extensively, KA Huskey and SM Sullivan, Chapter 16 below. 9 JR Luckey, VB Grasso, KM Manuel, ‘Report—Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress’ (2009), available at www.fas.org/sgp/crs/misc/R40641.pdf. 10 OMB Circular A-76, above n 8, Attachment A, s B, para 1.c(4).

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military.11 Within the European context, the UK increasingly resorted to security firms for military purposes in the 1990s, after the end of the cold war. Though PMCs are considered a potential threat by the government, their services are constantly growing and the debate about the limits of outsourcing turns around the issue of ‘direct participation in hostilities’, in particular with regard to extraterritorial activities.12 In other European countries, PMCs’ services tend to be perceived as a threat to the state monopoly of armed force and a dangerous way of blurring the distinction between civilians and combatants established by the Geneva Conventions, thus they are tolerated only in post-conflict situations, for purposes of stabilisation. However, PSCs are tolerated more widely, because they confine themselves to offering logistical support and do not act directly in the theatre of conflict, though activities involving the significant exercise of public powers cannot be outsourced. In France, Germany, Italy, Portugal, Finland and the Netherlands, military activities are traditionally considered the exclusive competence of the state,13 so PMCs are fairly rare or even non-existent.14 In Belgium, PMCs have been banned from the national territory since 1934.15 In the Czech Republic, no PMC operating abroad existed until January 2009, when the enterprise ABL-AFG started acting in Afghanistan as a branch of the national company ABL-Inc; moreover, the government has never resorted to PMCs. The legislation of Russia provides that the employment of private contractors in military operations abroad is under the discretion of the Federal Council.16 Estonia prevents PSCs from exercising national defence functions, except when explicitly provided by specific acts,17 so that, in practice, the government outsources non-core military external activities, mainly concerning back-up support. In Germany, only governmental responsibilities related to internal security can be outsourced to PSCs, not tasks concerning external security.18 In France, the allocation of state functions to PSCs is often done on the basis of the criterion of their ‘reversibility’, which means the possibility of withdrawing the allocation to private companies and re-establishing the competence of 11 AS Ress, ‘Report—Private Security in Australia’ (Canberra, Australian Institute of Criminology, 1984), available at www.criminologyresearchcouncil.gov.au/reports/3–81. pdf. See also, more extensively, T McCormack and R Liivoja, Chapter 22 below. 12 House of Commons, Foreign Affairs Committee, ‘Ninth Report’ (2008) paras 102–08, available at www.parliament.the-stationery-office.co.uk. See also A Bohm, K Senior and A White, Chapter 15 below. 13 See, eg ‘Answers by the German Government to the Parliament’, Bundestag Printed Paper 16/1296 (26 April 2006), Answer No 6. See also R Evertz, Chapter 10 below. 14 Examples of PMCs are Secopex, Global Dutch Dynamics and Prevent International. 15 See the Law Prohibiting Private Militias (29 July 1934). 16 Constitution of the Russian Federation, Art 102, para 1, point g. 17 Security Act (Turvaseadus) (8 October 2003) Art 16, para 1. 18 See ‘Answers by the German Government to the Parliament’, above n 13, Answer No 4.

National Regulation of Private Military and Security Services 109 the state.19 Therefore, PSCs end up concluding contracts mainly with non-state organs, such as international organisations or multinational corporations.

I I I . L I CEN SIN G REGIMES

In those states where private companies traditionally provide security services, ie the vast majority worldwide, procedures exist for the release of licences granting access to the market of force.20 These procedures apply also when PSCs start providing military services, though whether or not such licences suffice to screen the new activity of PSCs is a problematic issue. According to licensing procedures, PSCs and their employees must satisfy necessary professional qualifications, in order not to pose a threat to state security and be clear of judicial condemnations. These requirements are checked via targeted constitutive procedures, which result in the issuing of a licence or a professional certificate and determine the incorporation of a PSC in a specific state. The Montreux Document on PMSCs (Part 2) requires uniformity in this regard, by requesting respect of the relevant national law, international humanitarian law and human rights.21 More specifically, PSCs must demonstrate appropriate financial capacities, accurate and up-to-date personnel and property records— in particular with regard to weapons and ammunitions—no record of involvement in serious crimes and, insofar as a PSC or its personnel has engaged in past unlawful conduct, capacity to appropriately deal with such conduct through investigation, disciplinary measures and collaboration with public authorities. PSC personnel are generally requested to be clear of criminal condemnations and acts contrary to the security of the state and conflicting activities, and professional and well trained, in particular in the use of force and weapons. This regime is supported by PSCs’ self-regulatory initiatives, which usually foster transparency and compliance with public licensing procedures.22 In the US, the licensing of private security services providers is governed under different states’ regulation. For instance, according to 19

Ministerial Directive 30 892 (3 August 2000). Complex situations nevertheless exist in some states, eg Angola, where a high number of PSMCs allegedly provide their services without being duly licensed. See RM De Morais, ‘Report—Private Security Companies and a Parallel State in Angola’ (2007), available at www.africafiles.org/article.asp?ID=16918. 21 UN Doc A/63/467-S/2008/636, Annex, ‘Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict’, 17 September 2008, paras 31–38. 22 International Code of Conduct for Private Security Providers 2010, para 45, available at www.icoc-psp.org/uploads/INTERNATIONAL_CODE_OF_CONDUCT_Final_with_ Company_Names.pdf. 20

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the legislation of Louisiana, PSCs and their personnel must submit an application to the Louisiana Board of Private Security Examiners, and licences are released based on a test that covers the lack of any record of convictions for moral turpitude, illegal weapons use or possession, felony or habit of alcohol or narcotics addiction, as well as professional qualification in private security, civilian law enforcement and active military duty.23 At the federal level, the 1986 US Arms Export Control Act, establishing purposes and procedures for the sale of military equipments and related services, provides that US companies offering military advice to foreign nationals must register with and obtain a licence from the State Department.24 Canadian and Australian federal states adopted similar regulations for licensing based on judicial records and professional qualifications with respect to both PSCs and their personnel.25 Under the same criteria, citizens or natural persons permanently resident in South Africa as well as legal persons willing to provide security services must register with the Security Industry Regulatory Authority.26 In Afghanistan, PSCs’ licences are released on a one-year basis by a High Coordination Board, chaired by the Ministry of the interior.27 Foreign PSCs providing their services in Iraq are subject to the same licensing regime as national companies.28 Within the European context, in Germany, licences are released to PSCs that demonstrate the possession of essential skills and reliability according to the administrative procedures set up by each Land.29 Under the French and Italian legislation, PSCs come into existence by registering with the Register of the Companies and the Prefect, which is empowered to decide whether or not a PSC can come into existence according to judicial probity and due professional qualifications, as well as to authorise the carrying of weapons.30 In the Netherlands, PSCs are subject to a licence released by the Ministry of Justice,31 whilst in Portugal 23 Louisiana Administrative Code (2006), Title 46, pt LIX; Louisiana Statutes (1984), ch 47, Title 37; New Hampshire Statutes (1977), ch 106-F. 24 See Huskey and Sullivan, above n 8. 25 See, eg the Law on Private Security and Investigation Agencies of Quebec (1981); Private Security Regulations of Victoria (SR No 77/2005). 26 Private Security Industry Regulation Act (2001), ch 3. 27 Procedure for Regulating Activities of Private Security Companies in Afghanistan (2008) Art 8. 28 CPA Memorandum 17 on Registration Requirements for PSCs (26 June 2004), s 1; Iraqi Law on Private Security Companies (2007), Art 1. 29 German Industrial Code (Zustimmungsverordnung zur Gewerbeordnung) (1999), s 1(1). 30 French Law on Private Security No 83-629 (12 July 1983); Italian Royal Decree on Public Security (18 June 1931), Arts 133 et seq. 31 Act on the Private Security Organizations and Private Investigation Bureaus (Wet particuliere beveiligingsorganisaties en recherchebureaus) (24 October 1997); Regulation on Security Organizations and Private Investigation Bureaus (Regeling particuliere beveiligingsorganisaties en recherchebureaus) (3 March 1999), as amended on 2 December 2002.

National Regulation of Private Military and Security Services 111 and Spain the same role is played by the Ministry of the Interior.32 Similarly, in Latvia, under the Security Guard Activities Law (SGAL), specific private security services can be performed by citizens or legal persons that obtain a licence issued by the Ministry of the Interior and register with the State Police.33 Interestingly, in the Czech Republic, PSCs come into existence simply by acquiring a trade licence for performing business activity and being recorded in local Trade Licence Offices,34 whereas possession of firearms is subject to special five year permissions and foreign trade with military materials is subject to a licence issued by the Ministry of Industry and Trade.35 In the UK, the current licensing system of PSCs is centred on the Security Industry Authority.36 Regarding PMCs, in 2002 the UK government published a Green Paper including options for regulation de iure condendo, which envisages that PMCs obtain specific licences in order to conclude contracts for providing military and security services abroad under the same regime applying to arms export.37 Beside a general licensing regime allowing a PMC to exercise a range of activities in a specified list of countries, the possibility was put forward of a general licence for military and security services abroad or that of licensing specific contracts for military activities.38

I V. T H E HIRIN G C ON TRAC T

Hiring procedures ultimately revolve around the hiring contract, which regulates the relationships between PMSCs and the beneficiaries of their services. The hiring subject can be a state, an international organisation, a non-governmental organisation, a trans-national corporation or any other private entity. So far, the majority of contracts have been entered into by the US, Canada and the UK, where the perception of the use of force as a state monopoly is not a tenet.39 As a general rule, governmental outsourcing takes place under the responsibility of contracting administrations, and follows formal and informal procedures and criteria. The Australian government, for 32 Portuguese Decree-Law (35/2004), Art 22; Spanish Law on Private Security (23/1992), Arts 10 et seq. 33 Security Guard Activities Law (2008), Art 5. 34 Trade Licensing Act No 455/1991Coll, especially Annex 3. 35 Act on Fire Arms No 119/2002 Coll; Foreign Trade with Military Materiel No 38/1994 Coll, s 6, para 2 and s 23. 36 Private Security Industry Act (2001), ch 12, Arts 1 et seq. 37 See HC 577 (2001–2002), Private Military Companies: Options for Regulation (HMSO, London 2002). 38 ibid, 10–11. 39 J Cockayne and E Speers Mears, ‘Report—Private Military and Security Companies: A Framework for Regulation’ (International Peace Institute, 2009) 3, available at www. operationspaix.net.

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instance, is committed to a strict policy of open tendering for procurement contracts in order to achieve competition, transparency, accountability, effective, efficient and ethical use of public funds. In fact, Australian governmental departments and agencies must abide by General Procurement Guidelines in their tendering for contracts.40 Among European countries, in France three categories of state contract exist: (i) partnership, based on a shared division of risks; (ii) public contracts, based on acquisition of services; and (iii) global delegation of services. Contracts differ with regard to the time factor, and can be permanent, based on a fixed term or set a mission of 24 months maximum.41 However, due to the limited number and capacity of French PMCs, no military functions are currently contracted out by the state for missions abroad.42 Under the Spanish legislation, services offered by PSCs are considered ‘complementary and subordinate’ with respect to state action, which leads to the establishment of a contractual relationship of collaboration rather than delegation.43 In the Netherlands, security services may be provided by PMCs hired by the Ministry of Defence according to tendering rules for public procurement. Resort to PMCs is decided on the basis of strict political criteria, including, in particular, the maintenance of the state’s monopoly on the use of force, the importance of the mission and tasks outsourced, the security risk to which the personnel are exposed, the degree of operational dependence on PMCs, the existence of military alternatives, state responsibility, the scope for monitoring the outsourced tasks, and financial and economic issues.44 The government generally supports also hiring or subcontracting to locals, which are usually more familiar with the situation in the field.45 In extra-European countries, specific programmes are often set up in order to outsource military services, especially based on state defence strategies. Thus, in the US, PMCs can be hired either through the guidance of Pentagon officials or according to the Logistic Civil Augmentation Program (LOGCAP).46 Under the LOGCAP, PMCs are hired to support military operations undertaken by US troops in order to respond to the specific objective of resolving unit shortfalls and providing additional units in case of need. In Canada, the Department of Foreign Affairs and International Trade often contracts out external security services to PSCs. 40 Commonwealth Procurement Guidelines (2008). See also McCormack and Liivoja, above n 11. 41 See the French Labour Code. 42 cf V Capdevielle and H Cherief, Chapter 9 below. 43 Law on Private Security (23/1992), preamble and Art 1.1. 44 See Advisory Council of International Affairs, ‘Report—Employing Private Military Companies, A Question of Responsibility’, No 59 (December 2007) 32, available at www. aiv-advies.nl, and the reaction of the Ministries of Defense and Foreign Affairs. 45 See G den Dekker, Chapter 12 below. 46 Army Regulation 700-137: Logistics Civil Augmentation Program (LOGCAP) (1985).

National Regulation of Private Military and Security Services 113 Furthermore, the Canadian Forces Contractor Augmentation Program permits the support of the Canadian Forces operating abroad through military services provided by PMCs.47 Organs and procedures exist for ensuring that contracts respect some fundamental criteria. For instance, the UK Green Paper suggests that PMCs operating abroad register their contracts with the government, so as to prevent companies from undertaking agreements contrary to the UK interest or policy.48 The basic idea is to increase the state knowledge of PMCs’ engagements in order to prevent potential problems. Nevertheless, this is not always the case. In Germany, for instance, there exists no obligation for a PSC to notify the government of a contract, which would be regarded as an interference with the freedom of commerce, but makes it difficult to keep track and control of the existence and activity of PSCs hired by non-state actors.49 Basic private rules complement public regulation by compelling PMSCs to contract solely with legitimate and recognised entities and not to engage in contracts that might violate Corporate Social Responsibility (CSR) rules governing the provision of services.50

V. T H E R E G ULATION OF SERV IC ES

PMSCs offer their services either in the ‘home’ state, which is a traditional practice, or in the ‘host’ state, which is an expanding practice within the context of the global market especially with regard to military services. For instance, the US recently resorted to PMCs in order to compensate shortages of military personnel in Iraq and Afghanistan, where companies hired by the Netherlands also operate. The UK exploited PMSCs in different African countries, namely Zaire, Sierra 47 Department of National Defence, ‘Canadian Forces Contractor Augmentation Program’, Backgrounder, BG-04.010 (14 July 2004), available at www.forces.gc.ca/site/ news-nouvelles/news-nouvelles-eng.asp?id=1409. 48 Options for Regulation, above n 37, 1. 49 See ‘Answers by the German Government to the Parliament’, Bundestag Printed Paper 15/5824 (24 June 2005), Answer No 38. 50 ISOA Code of Conduct (2009), 4, available at www.stability-operations.org; International CoC for Private Security Services (PSS) Providers (2010), para 20. Nevertheless, PMSCs are not compelled to embody CSR rules into contracts, which makes the object of scholarly critique, specifically with regard to the necessity of ensuring respect for human rights and in light of the existing soft international legal framework for transnational corporations. See De Londras, above n 1, 115; L Dickinson, ‘Contracts as A Tool for Regulating PMCs’ in S Chesterman and C Lehnardt (eds), From Mercenaries to Market—The Rise and Regulation of PMCs (Oxford, Oxford University Press, 2007) 217, 218 et seq; M Cottier, ‘Elements for Contracting and Regulating Private Security and Military Companies’ (2006) 88 IRRC 637, 642–43; UN Economic and Social Council, ‘Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with regard to Human Rights’, UN Doc E/CN.4/Sub.2/2003/12/Rev.2 (2003), para 15.

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Leone and Angola. It is also a usual practice for states to resort to PSCs in order to ensure security for their missions abroad. The activity of PMSCs and their personnel is regulated differently in different legal systems, based mainly on the constitution, the social perception of PMSCs and the quantitative resort to their services. In general, more or less exhaustive regulation exists targeting the activity of PSCs, depending on the extent to which they are rooted in the state. By contrast, states started only recently to govern the activity of PMCs, once again depending on the extent of their practice. In the absence of specific regulation targeting PMCs’ services, rules addressing PSCs apply at the same time as rules addressing state military personnel. The scope of most national rules addressing PMSCs is confined to the home state, and thus applies exclusively to services provided within the state where companies are registered. This is the case of European countries such as France, Italy, Germany, the Netherlands, Spain, Portugal, Latvia, Estonia and Russia.51 By contrast, in the UK, the Green Paper on PMCs elaborates proposals mainly concerned with the activity of PMCs abroad and seeks to extend the law of the home state to the host state according to the principle of nationality.52 This is understandable in light of the fact that the UK is the major European state outsourcing military services to private companies, especially in foreign contexts. Among extra-European countries, there is not much regulation specifically targeting PMCs operating abroad. This is the case, in particular, of Canada, and to a lesser extent the US, which are leaders in the export of private military services.53 As a consequence, PMSCs are basically submitted to the law of the state where they act, according to the principle of territoriality. Additional rules can be set up via contractual clauses, in particular within the context of governmental outsourcing, which is a common practice in the Netherlands and Australia.54 Concerning regulation specifically addressing PSCs, overall, firms and their personnel must act within the competence that the law expressly confers on them. Private security contractors are usually allowed to provide security police, street patrol service, detection, prevention and protection of individuals and property from intrusion, harm or theft.55 PSC personnel are also required to wear distinctive 51 For instance, Art 288 of the Italian Criminal Code, which prohibits the recruiting or arming of citizens for fighting in the service of foreigners, is applicable only ‘within the territory of the (Italian) State’. 52 See Bohm et al, above n 12. 53 cf Huskey and Sullivan, above n 8; D Anthonyshyn, J Grafe and D Hubert, Chapter 17 below. 54 See den Dekker, above n 45; McCormack and Liivoja, above n 11. 55 See, eg the Maine Revised Statutes (1981), Title 32, ch 93, Art 9; Private Security Business and Alarm Act of Michigan (1968), Art 338.1053; Colombia Decree No 356/1994,

National Regulation of Private Military and Security Services 115 uniforms and hold identification cards for practising their activity, as provided, for instance, by the legislation of the Netherlands, Italy, Estonia, Poland and Brazil, and the states of Victoria and Arizona.56 Specific limits are furthermore defined by different national regulations, often in relation to particular contexts. According to Belgian law, for instance, PSCs are prevented from intervening in political disputes and labour conflicts, as well as in relation to acts having a political nature.57 The Afghan law dresses a list of activities that PSCs cannot perform, such as providing security for governmental officers and historical sites.58 Sometimes, private security personnel are deprived of specific powers to which public officers are entitled. Thus, under the legislation of South Africa, private security agents do not have the faculty of arrest, search and seizure afforded to public police officers,59 whilst under the law of Michigan private security contractors may arrest persons on the employer’s premises.60 Private security guards that provide day-to-day management of the crossings between Israel and the West Bank and between Israel and the Gaza Strip are conferred special powers to thwart terrorist threats.61 General regulation usually governs the trafficking of arms, dual-use goods and technologies, eg nuclear materials, and strategic goods, eg global navigation satellite systems receiving equipment, by establishing special licensing regimes and controls that are relevant to PMSCs.62 Specific and general regulation targets the right to carry and use (fire) arms, which is usually subject to a licensing system and confined to circumscribed cases, mainly for purposes of self-defence.63 For instance, under the Private Security Guard Companies and Private Security Guards Act of Washington State, armed private security guards must obtain a firearms certificate from the criminal justice training commission by applying on a form prescribed by their director and Art 4; Private Security Act of the Australian Capital Territory (2002), Art 7; Security Industry Act of New South Wales (1997), Art 4; French Law on Private Security No 83-629 (12 July 1983), Art 1. 56 See, eg the Italian RD 635/1940 as modified by the DPR 153/2008, Arts 230 et seq; Brazilian Law on Private Security Companies and the Security of Financial Institutions, 7.102 (20 June 1983), Arts 18–19; Private Security Regulation of Victoria (2005), Art 59; Private Security Act of Arizona (2000), Art 32-2635. 57 See the Belgian Law on Public Security (10-01-2005), Art 11(1). 58 Procedure for Regulating Activities of Private Security Companies in Afghanistan (2008), Art 6. 59 See the Criminal Procedure Act 51 (1977). 60 Private Security Business and Alarm Act of Michigan (1968), Art 338.1080. 61 Israeli Law on Public Security (2005), Art 1. 62 See House of Commons, Foreign Affairs Committee, ‘Ninth Report’ (2008) para 149; Latvian Law on the Handling of Weapons (2005) s 36, para 2; Russian federal law ‘On Weapons’, NZ 150-FZ (1999), Art 17, para 3. 63 Therefore, resort to force must be necessary and proportionate to an imminent and unjustified attack (not supposed, but likely) directed towards the defendant, a third person or his property (see, eg Art 122-5 of the French Criminal Code).

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paying a non-refundable fee.64 Throughout the US, the 2007 Operational Law Handbook provides that PMC personnel contracted to act in a security context are allowed to carry firearms only following explicit approval and basically for defensive purposes.65 In Afghanistan, one year licences for carrying firearms and using armoured vehicles are released according to the 2008 Procedure for Regulating Activities of PSCs in Afghanistan.66 In Iraq, PSCs’ personnel may carry firearms subject to authorisations established under the 2007 Iraqi Law on PSCs, replacing the CPA Memorandum Order 17 of 2004.67 In Australia, general and specific acts of federate states regulate the possession, trafficking and use of firearms.68 In Latvia, the SGAL, complemented by the Law on the Handling of Weapons, provides for the use of arms only in self-defence in order to terminate illegal actions and arrest persons that violate the law.69 In the absence of specific regulation targeting PSCs, in Germany the right to carry weapons is regulated by the German Weapons Act.70 Dutch outsourcing contracts authorise PMSCs to resort to armed force only in extreme emergency situations, under circumstances that are more restrictive than those imposed on national armed forces.71 Within the military context, states tend to exclude PMCs from the possibility of taking a direct part in hostilities,72 unless private contractors are enlisted as military personnel.73 In the US, the concept of ‘direct participation in hostilities’ is probably the only one regarded as an ‘inherently governmental function’ and thus non-accessible to PMCs.74 In Canada, private contractors are reportedly used only 64 See the Private Security Guard Companies and Private Security Guards of Washington State Act (1991), 308-18-120. See also the Private Security Act of Vermont (1981), Title 26, ch 59, para 3175c. 65 Operational Law Handbook (2010), ch 17. See also R Evertz, above n 13. 66 Procedure for Regulating Activities of Private Security Companies in Afghanistan (2008), Art 19. 67 Iraqi Law on Private Security Companies (2007), Art 2; CPA Memorandum 17 on Registration Requirements for PSCs (2004), s 3(2). 68 See, eg the Firearms Act of Tasmania (1996); Security Industry Act of New South Wales (1997), Arts 23AA et seq; Firearms Act of New South Wales (1996). 69 Security Guard Activities Law (2008), Art 13; Law on the Handling of Weapons (Iero u aprites likums) (6 June 2002). 70 German Weapons Act (1990), Art 4. 71 See den Dekker, above n 45. 72 On the definition of the notion of ‘direct participation in hostilities’ see N Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL (Geneva, ICRC, 2009); JM Henckaerts and L Doswald-Beck, Customary International Humanitarian Law (Cambridge, Cambridge University Press, 2005) Rule 6, 22–23; Y Sandoz, C Swinarski and B Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, CRC/Martinus Nijhoff, 1987) 618–19. 73 See, eg Art 61(1) of the Latvian Military Service Law. 74 US General Accounting Office (GAO), ‘Commercial Activities Panel: Improving the Sourcing Decisions of the Federal Government’, GAO-02-847T (Washington, DC, 27 September 2002), available at www.gao.gov/new.items/d02847t.pdf.

National Regulation of Private Military and Security Services 117 for ‘perimeter security’, not for ‘offensive operations’.75 In European countries, where military activity is regarded as an exclusive prerogative of the state, direct engagement in fighting is considered illegal or undesirable conduct.76 In the UK, where PMCs are still largely deregulated, the debate is open. Nevertheless, the prevailing idea is to outlaw the direct engagement of PMCs in hostilities, within the context of a possible complete ban on military activities abroad.77 In South Africa, where no specific regulation governs the activity of PMCs in armed conflicts, according to the proposals for a new regulatory framework, the South African government should be empowered to prevent PMCs from acting in conflict zones.78 Finally, states tend to make clear that national rules on PMSCs must be considered within the context of international initiatives aiming to protect fundamental principles, human rights and humanitarian law.79 Of particular relevance in this respect are general and specific initiatives such as the 2003 UN Norms on the Responsibilities of Trans-national Corporations and Other Business Enterprises with Regard to Human Rights, the 2010 Draft International Convention on PMSCs80 and the 2009 Montreux Document on PMSCs (Part 1).

V I . C ONT R OL AN D LIABILITY ISSUES

States appoint organs for directing, controlling and sanctioning the activity of PSCs and their personnel. In France and Italy, PSCs operating within the territory are submitted to the control of a Police Commissioner.81 A similar system applies in Spain, Portugal and Belgium, under the ultimate authority of the Ministry of the Interior.82 In the US, private security guards are monitored by Commissioners of safety.83 In Brazil, 75 CS Earl, ‘Old Problems in New Packaging: The Need for Proactive Private Security Contractor Management’ (Canadian Forces College, 2008) 15, available at www.cfc.forces. gc.ca/papers/csc/csc34/mds/earl.pdf. 76 See Government Report, ‘Finnish Security and Defence Policy 2004’, Prime Minister’s Office Publications 18/2004, 120. 77 Options for Regulation, above n 37, 12; House of Common, Foreign Affairs Committee, Ninth Report (2008), para 114. 78 The framework is set up by the South-African Constitution, s 198(b). See also FZ Ntoubandi, Chapter 21 below. 79 See K Creutz, ‘Report—Transnational Privatised Security and the International Protection of Human Rights’, The Erik Castrén Institute Research Reports 17/2006. 80 See the text of the Draft Convention in ‘Report of the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-determination’, UN Doc A/HRC/15/25 (2 July 2010). 81 See the French Law on Internal Security (239/2003); Italian Law on Public Security (RD 773/1931), Art 135. 82 See Spanish Law on Private Security (23/1992), Art 30; Portuguese Decree-Law (35/2004), Arts 20 et seq; Belgian Law on Private Security (10-01-2005), Art 17. 83 See, eg New Hampshire Statutes (1977), ch 106-F, 14.

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warnings, fines, suspension and withdrawal for PSCs are under the control of the Ministry of Justice.84 In Australia, according to local legislation, it is up to the police commissioners or the commissioners for fair trading to undertake disciplinary action against PSCs.85 In South Africa, the power to oversee PSCs is attributed to the Private Security Industry Authority.86 Under Afghan law, PSCs are monitored by a High Coordinating Board.87 States that resort consistently to PMCs are setting additional regulation. In the US, general control of PMCs is assigned to different state departments, in particular the Department of Defence and the Department of State.88 In the theatre of action, beside state military commanders, an Army Procurement Contracting Officer is primarily responsible for directing and monitoring the activity of PMC personnel, together with additional liaison officers.89 In other states, eg Canada, direction and control of PMCs’ activity is achieved via contractual clauses on a caseby-case basis.90 Illegal conduct by PSCs may give rise not only to administrative proceedings and sanctions, but also to criminal and civil responsibility, especially because of the use of force. Specific violations by private security contractors consist in practising security services beyond the scope permitted by law, failing to provide due licences, violating confidentiality with clients, falsifying or failing to provide compulsory minimum training in firearms or failing to renew due registrations.91 PMCs are especially susceptible to committing crimes relating to the use of force in conflict and post-conflict situations, eg killing, wounding, torture, illegal exportation of arms, acts against the state, acts that expose the state to the risk of war and the engagement of civilians in forbidden military services.92 The most debated issue is the possible intuitive overlap between the activity of private military contractors and 84 See the Law on Private Security Companies and the Security of Financial Institutions 7.102 (20 June 1983), Arts 32 and 40. 85 Security Industry Bill of New South Wales (1997), Arts 25 et seq; Security Industry Bill of the Australian Capital Territory (2002), Art 31. 86 Private Security Industry Regulation Act No 56 (2001), ch 2. 87 Procedure for Regulating Activities of Private Security Companies in Afghanistan (2008), Art 28. 88 See Huskey and Sullivan, above n 8. 89 Army Regulation 715-9 (1999), ch 3-2, paras e and f; Field Manual 3-100.21 (100-21), ‘Contractors on the Battlefield’ (2003) ch 4. 90 cf Anthonyshyn et al, above n 53. 91 See, eg the Vermont Statutes (1981), Title 26, ch 59, para 3181; Private Security Act of New South Wales (1997), Art 46; South Africa Private Security Industry Regulation Act 56 (2001), Art 38; Spanish Law on Private Security 23/1992, Art 22. 92 US District Court of Columbia, USA v Slaught et al, Criminal Action No 08-0360 (RMU); US District Court of Columbia, Saleh et al v TITAN et al, Civil Actions Nos 05-1165 and 04-1248; US District Court for the Eastern District of Virginia, Al Shimari et al v CACI Premier Technology et al, No 1:08cv827.

National Regulation of Private Military and Security Services 119 mercenarism.93 In this respect, within the context of the tight definition provided by Additional Protocol I to the Geneva Conventions,94 some states adopt a restrictive notion of mercenarism;95 others either adopt an autonomous definition of mercenarism, as in the case of Germany,96 or do not regulate it, as in the case of Sweden, Latvia and Brazil.97 The tendency, however, is to distinguish PMCs from mercenaries,98 and to allow participation of citizens in foreign armed forces after having obtained due permissions,99 or prohibit services for foreign states at war with countries which are at peace with the state of nationality.100 In domestic systems where the principle societas delinquere non potest applies, such as Italy, Spain, Czech Republic, Russia and Colombia, the criminal responsibility of private contractors does not extend to corporations and only civil action against PMSCs is possible.101 By contrast, in countries such as France, Finland, the Netherlands, Estonia, Lithuania, Poland, Israel, Australia, the US and Canada, which acknowledge the criminal responsibility of corporations, PMSCs may undergo criminal liability, which entails sanctions encompassing dissolution, fines and confiscation.102 In order to compensate victims, PMSCs are often compelled to arrange for insurance covering the risk connected with their activity.103 Except for crimes submitted to universal jurisdiction, competence to prosecute is established based on the principles of territoriality (locus commissi delicti) and nationality.104 The former is exclusive when the criminal rules of a specific legal order have limited extraterritorial validity, eg in the UK, Canada and Australia, where only a small number of offences perpetrated overseas can be prosecuted on the

93 See the Human Rights Council, ‘Mandate of the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination’, Resolution 7/21 (28 March 2008), available at www.unwg. rapn.ru/ru/1/1__A_HRC_RES_7_21.pdf. 94 See the Additional Protocol I to the Geneva Conventions (1977), Art 47; OUA Convention on the Elimination of Mercenarism (1972); UN Convention against the Recruitment, Use, Financing and Training of Mercenaries (1989). 95 French Civil Code, Art 23-8; French Criminal Code, Arts 436-1 to 436-5; Italian Criminal Code, Art 288; South African Foreign Military Assistance Act. 96 German Criminal Code, s 109(h). 97 See A Bergman, Chapter 14 and I Miluna, Chapter 6 below. 98 cf PMCs: Options for Regulation (2008), 2 et seq. 99 See the German Act on Compulsory Military Service (Wehrpflichtgesetz) (16 September 2008), with amendments as of 31 July 2010, s 8; Latvian Citizenship Law (lastly amended in 1988), s 24, para 1; Czech Act on Military Ability No 585/2004 Coll, s 34. 100 See, eg the UK Foreign Enlistment Act (1870); USA Code, pt I, Title 18, para 959. 101 See, eg ss 12 and 70.1 of the Latvian Criminal Code. 102 See, eg the French Criminal Code, Arts 121–2 and 131–39; Latvian Criminal Code, s 70.2; Penal Code of Estonia, Arts 46–47; Civil Code of the Russian Federation, Art 61. 103 See, eg Art 7(1)(f) of the Spanish Law on Private Security (23/1992). 104 cf, eg Miluna, above n 97.

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basis of the nationality of the offender.105 This may nevertheless be tantamount to ensuring impunity if specific rules exclude the responsibility of PMSC personnel territorially, as in the case of the CPA Order No 17 in Iraq.106 In some countries, eg the US and Canada, private military contractors are also likely to be included in the jurisdiction of military tribunals.107 Ultimately, public regulation is complemented by private rules that compel PSCs to facilitate public control systems by cooperating in official investigations, monitoring and reporting breaches of national regulation, IHL and fundamental rights to public authorities.108

V II. C ON C LUSION

Whereas private security companies have long operated worldwide in non-war contexts, albeit with significant differences from state to state, military services traditionally constitute a public monopoly. The recent breakthrough of private enterprises providing security services relating to the military in topical contexts such as Iraq and Afghanistan has radically changed the scenario. The main consequences are that, on the one hand, it is not improper to speak of ‘PMSCs’ instead of ‘PSCs’, and, on the other, national legislation addressing security services, which is quite uniform and exhaustive, might prove inadequate for regulating military activity. Overall, national regulation in the field is underpinned by basic common features. In fact, PMSCs usually come into legal existence at the end of specific licensing procedures, may contract with any legal subject and tend to enter into agreements especially with states, which sometimes adopt specific programmes for outsourcing military functions. Substantively, PMSCs tend to separate from mercenaries, may resort to force only for defensive purposes, cannot take direct part in hostilities and are subject not only to civil and criminal liability, but also to specific administrative control.

105 See Huskey and Sulluvan, above n 8; McCormack and Liivoja, above n 11; Anthonyshyn et al, above n 53. In this respect, it must be noted that, though US Federal jurisdictions traditionally cannot exercise their power beyond state borders, the 2000 Military Extraterritorial Jurisdiction Act extended their effectiveness overseas. 106 CPA Order 17 on the Status of CPA Missions and Personnel (27 June 2004). Full accountability of foreign PSCs active in Iraq has been finally re-established under the Iraqi Law on Private Security Companies (2007), Art 1. 107 See the US National Defense Authorization Act for Fiscal Year 2007 (Public Law 109-364) and the Canadian Code of Service Discipline (updated 2005). 108 International CoC for PSS Providers (2010) paras 6(d–e) and 67(c); ISOA CoC (2009) 3.

National Regulation of Private Military and Security Services 121 Ultimately, regulation proves insufficient, especially with regard to military practice, when the law of the home state or the contracting state does not apply extraterritorially and the law of the host state is absent or weak. Therefore, specific attempts developed by states to regulate private military services abroad as well as complementary international and private regulatory initiatives are essential to fill the gap.

6 The Baltic States IEVA MILUNA*

I . I NTRODUC TION

T

HIS CONTRIBUTION EXAMINES the regulatory context of the provision of private military and security services in the Baltic States. Estonia, Latvia and Lithuania have been active in sending their national armed forces to international military missions abroad. However, there have been no cases in which the Baltic States individually have contracted out defence, security or even combat tasks to private military and security companies (PMSCs). At the same time, this does not afford a basis to conclude that Baltic States’ nationals or companies cannot be recruited by foreign private military or security companies, states or international organisations. In this light, the author is of the view that, due to the link with the national state, the existing national regulatory framework has an impact on the operation of stateregistered PMSCs and their employees, if recruited abroad. The scope of national regulation may further shed light on the prospective harmonisation measures within the European Union, as well as on the possible change of paradigms in the field of delegation of defence and security tasks to the private sector. In order to examine the Baltic States’ national regulatory context for PMSCs, first the normative concept of PMSCs will be discussed. This will facilitate further elaboration on the role and function of PMSCs in performing their tasks alongside the national armed forces. Secondly, the regulation of Baltic States’ national armed forces will be analysed. The policy documents in the field of national defence and security of the Baltic States will be analysed to determine whether the states may have the intent to contract out the vital defence and security tasks to private industry. Thirdly, the regulation of the provision of private security

* Part of the research for the discussion of the Latvian regulation has been carried out by Signe Zaharova. The author thanks Prof. Ineta Ziemele for her valuable comments during the early stages of drafting the reports.

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and investigation services will be explored, as they may entail ad hoc assumption of military tasks. Fourthly, the Baltic States’ regulation on the possession of arms, commercial handling of arms and goods of strategic significance will be examined. The applicability of the relevant provisions of corporate law, labour law and public procurement to PMSCs will then be discussed. Finally, the context in which PMSCs may incur civil liability and conditions that lead to their criminal responsibility will be explored.

I I . C ONCEP T OF P RIVATE MILITARY AND SEC URITY C OMPAN IES

The normative concepts of PMSCs set out in the Baltic States’ laws reveal the role and function that is attributed to actors of private industry. This establishes a basis for further assessment of whether PMSCs can be integrated in or act alongside the state national armed forces, or rather be subject to an autonomous private operability at the request of another company, state or international organisation. The Baltic States’ laws stipulate a clear distinction between the concepts of private military companies and private security companies. The Constitution of Estonia1 establishes normative elements for a definition of a private military company. Despite the fact that it does not denominate undertakings as ‘private military companies’, it stipulates that organisations and unions that possess weapons, are militarily organised or perform military exercises shall be required to obtain prior permission for which the conditions and procedure shall be provided by law.2 Although this description may cover private security companies if they possess weapons and are militarily organised or perform military exercises, the character of this qualification refers to private military companies. However, there are no specific laws further regulating private military companies in Estonia. For their part, the laws of Latvia and Lithuania do not provide for a definition of private military companies. As stated above, that does not exclude the possibility that private security companies may engage in provision of services of military character either incidentally or exceeding the powers prescribed by the laws. Concerning private security companies, the Baltic States laws focus on the definition of the services which they provide rather than on the concept of establishments as such. In Estonia, the Security Act3 defines 1 The Constitution of the Republic of Estonia of 28 June 1992. The English version is available at www.legaltext.ee/text/en/X0000K1.htm (last accessed on 23 March 2011). 2 ibid, Art 48. 3 The Security Act (Turvaseadus) of 8 October 2003. The English versions of this and other Estonian laws cited is available at www.legaltext.ee/en/andmebaas/ava.asp?m=022 (last accessed on 23 March 2011).

The Baltic States 127 security firms as undertakings holding a licence to provide security services.4 These include security consulting, guarding and protection of movable and real property, personal protection, maintaining order at an event or a guarded object, operation of a monitoring centre and planning, installation and maintenance of security equipment.5 In Latvia, the Security Guard Activities Law6 covers the performance of security guard activities to ensure the security of persons and society.7 The concept of ‘private security services’ is characterised as a measure, or set of measures, performed in order to secure a protected object against illegal or other kinds of threats.8 In Lithuania, the Law on Security of Person and Property9 defines ‘private security company’ as a legal person, or a branch of a foreign legal person, which has acquired a licence to render services for provision of security of person or property.10 Thereby, the Baltic States’ laws on private security activity focus on defining the concept of private security services, thus elucidating the role and function of private security companies as maintaining security of persons and property, and providing consulting. The kinds of services offered by Baltic States private security companies are of a character that could in principle be performed in the framework of security sustainment for national armed forces during their international operations abroad. However, military discipline may not permit their incorporation into the military structure, where the concrete competence is allocated to the units of the armed forces themselves. At the same time, private security companies may engage in autonomous performance of their functions. Situations where private security companies may of necessity engage in defence or combat activities alongside the national armed forces are also not excluded as a possibility.

I I I . T H E R E G UL ATION OF N ATION AL ARMED F OR C E S AND T H E P OLIC Y OF C ON TRAC TIN G OUT DE F E NCE AN D SEC URITY TASK S

The Baltic States’ laws thoroughly regulate the state monopoly over the national armed forces. It is the role of their parliaments to take a decision 4

ibid, Arts 1(1) and 13(1). ibid, Art 4(1). 6 The Security Guard Activities Law (Apsardzes darbības likums) of 11 May 2006. The English versions of this and other Latvian laws cited is available at www.vvc.gov.lv (last accessed on 23 March 2011). 7 ibid, Art 2(1). 8 ibid, Art 1(4). 9 The Law on Security of Person and Property (Asmens ir turto saugos) of 2004, no English translation available. The Lithuanian version is available at www3.lrs.lt/pls/ inter2/dokpaieska.showdoc_l?p_id=238254 (last accessed on 23 March 2011). 10 ibid, Art 2(14). 5

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on the deployment of the national armed forces abroad. Due to the fact that parliaments decide on the defence policies of the Baltic States, whenever PMSCs are contracted to carry out defence, security or even combat tasks autonomously or within the military chain of command and control of the national armed forces, it shall be at the determination of the parliament. It may take the form of a general regulation or be on a case-by-case basis. However, if PMSCs are employed for service and maintenance functions, it may well be that the governments decide on this particular policy. This chapter examines the normative role of the Baltic States’ parliaments in the enforcement of international missions, regulation of security, investigation, intelligence and service tasks within the armed forces, policy and procedures for contracting out defence and security tasks, and the impact of military structure on the prospective operation of PMSCs.

A. The Role of the National Parliaments In Estonia, the parliament (Riigikogu) has the monopoly over taking the decision on the participation of the national armed forces in international missions. According to the Constitution of the Republic of Estonia, the parliament ratifies treaties of Estonia by which the state assumes military obligations.11 At the proposal of the President, the parliament declares a state of war, orders mobilisation and demobilisation, and decides on the utilisation of the armed forces in the fulfilment of international obligations of the Estonian state.12 The Estonian law prescribes that the parliament decides on the use of defence forces and the number involved, whereas the government fulfils the role of enforcement.13 Thereby, as international missions have at their core the implementation of the international obligations of Estonia, the deployment of PMSCs abroad being contracted by the state will require the determination of the parliament. In Latvia, the parliament (Saeima) maintains the prerogative on the decision on participation of the national armed forces in international missions. The Constitution of the Republic of Latvia14 stipulates that the parliament decides on the size of armed forces.15 With regard to international missions, Article 68 of the Latvian Constitution establishes that all international agreements settling the matters which may only be decided by legislative process require parliamentary ratification. The 11

Art 121(4) of the Constitution of the Republic of Estonia (n 1). ibid, Art 128. 13 Arts 7 and 8 of the Estonian International Military Co-operation Act (Rahvusvahelise sõjalise koostöö seadus) of 12 February 2003. 14 The Constitution of the Republic of Latvia. The English version is available at www. saeima.lv/en/legislation/constitution (last accessed on 23 March 2011). 15 ibid, Art 67. 12

The Baltic States 129 issue on the deployment of the national armed forces abroad is to be considered as a matter to be determined by way of legislation as it prescribes the relocation of armed forces in a foreign state jurisdiction. Also, the Law on Participation of the National Armed Forces of Latvia in International Operations16 implies that the involvement of the Latvian National Armed Force in international missions shall be the decision of the parliament.17 The Latvian National Security Law18 affirms that the parliament adopts the laws in the field of national security and approves the National Security Concept and the State Defence Concept.19 In a similar manner, in Lithuania, the Constitution of the Republic of Lithuania20 prescribes that the parliament (Seimas) is the competent authority to decide on the resort to the use of armed forces and to ratify international treaties concerning the defence of the state and international missions of the Lithuanian Armed Forces on foreign territories.21 Should the Lithuanian Armed Forces choose to contract out the defence or combat tasks not prescribed by the law, it will require the permission of the parliament. Conceptually, the issue of the involvement of PMSCs in performing defence and combat tasks should be determined by the State Defence Council, which considers and coordinates the main issues of state defence.22 However, the Lithuanian Law on the Organisation of the National Defence System and Military Service23 and the Law on the Basics of National Security24 clarify that it is the parliament which determines the national defence policy25 and approves National Security Strategy.26 The Strategy specifies the priorities and long- and mediumterm tasks of the development of the national security system of the state and the foreign, defence and domestic policies. These imply contracting out of the state defence, combat and security functions to private industry. The Baltic States’ laws prescribe a similar basis for their national 16 The Law on Participation of the National Armed Forces of Latvia in International Operations (likums ‘Latvijas Nacionālo bruņoto spēku piedalīšanās starptautiskajās operācijās’) of 16 February 1995, no English translation available. The Latvian version is available at www.likumi.lv/doc.php?id=34028 (last accessed on 23 March 2011). 17 ibid, Art 5(1). 18 The National Security Law (Nacionālās drošības likums) of 14 December 2000. 19 ibid, Art 6. 20 The Constitution of the Republic of Lithuania of 25 October 1992. The English versions of this and other Lithuanian laws cited is available at www3.lrs.lt/dokpaieska/forma_e. htm (last accessed on 23 March 2011). 21 ibid, Arts 67, 138 and 142. 22 ibid, Art 140. 23 The Law on the Organisation of the National Defence System and Military Service of 5 May 1998. 24 The Basics of the National Security, Appendix to the Law on the Basics of National Security of 19 December 1996. 25 Art 7(2) of the Lithuanian Law on the Organisation of the National Defence System and Military Service (n 23). 26 Art 3(2) of the Lithuanian Law on the Basics of National Security (n 24).

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armed force participation in international military missions. These are international operations in the exercise of the right of collective selfdefence in accordance with Article 51 of the UN Charter,27 or any other mission carried out in performance of obligations or pursuant to international law.28 These particular international missions will require the decision of the Baltic States’ parliaments and, if the function and role of PMSCs has not been established by the law, the resort to contracting out defence and security tasks to them will necessitate the approval of the parliament.

B. Status and Restrictions for the Members of the Armed Forces The laws of the Baltic States establish that the members of the national armed forces shall be the citizens of respectively Estonia,29 Latvia30 or Lithuania.31 Concerning the restrictions imposed on the members of the national armed forces, individuals cannot belong to a political party,32 or to an organisation or union which possesses weapons,33 or engage in business.34 As a matter of principle, the Estonian and Lithuanian laws prescribe that the members of the armed forces shall not perform remunerative work outside their duties, receive another salary or engage in commercial activities which could give rise to a conflict of private or service-related interests.35 The Latvian Military Service Law establishes that civilians may form military units.36 It differentiates between military employees and civilian employees. Military employees are civilians who, on the basis of an employment agreement, hold the position of soldiers if, due to objective 27 Art 6 of the Estonian International Military Co-operation Act (n 13); Art 1(1) of the Latvian Law on Participation of the National Armed Forces of Latvia in International Operations (n 16). 28 Art 6 of the Estonian International Military Co-operation Act (n 13); Arts 1 and 2 of the Latvian Law on Participation of the National Armed Forces of Latvia in International Operations (n 16); s 5.2.2 of the National Security Strategy of the Republic of Lithuania of 28 May 2002. 29 Art 8(1) of the Defence Forces Service Act (Kaitseväeteenistuse seadus) of 14 March 2000. 30 Art 5(1) of the National Armed Forces Law (Nacionālo bruņoto spēku likums) of 4 November 1999. 31 Art 139 of the Constitution of the Republic of Lithuania (n 20). 32 Art 118 of the Estonian Defence Forces Service Act (Kaitseväeteenistuse seadus) of 14 March 2000. 33 ibid. 34 ibid; Art 36(8) and (9) of the Lithuanian Law on the Organisation of the National Defence System and Military Service (n 23). 35 Art 184 of the Estonian Defence Forces Service Act (n 32); Art 36(8) and (9) of the Lithuanian Law on the Organisation of the National Defence System and Military Service (n 23). 36 Art 60 of the Military Service Law (Militārā dienesta likums) of 30 May 2002.

The Baltic States 131 reasons, it is impossible to form the units with soldiers.37 However, civilian employees are civilians who perform work in a civil unit on the basis of applicable labour law.38 Thus, the regulation on the composition of the Latvian Armed Forces as a matter of principle excludes an opportunity to directly contract private security companies and integrate them into the military structure for the purposes of the implementation of defence and security tasks.

C. Security, Investigation, Intelligence and Service Tasks It is embedded in the Baltic States’ defence laws that the security, investigation, intelligence and service tasks are carried out by military units, military police or service staff of the national armed forces. The fulfilment of these functions by the respective subjects has been expressly stipulated in the laws. The laws of Estonia, Latvia and Lithuania establish that the military police shall carry out security and investigatory functions.39 The military police is a constituent part of the army. In cases prescribed by the law, it is assisted by the state police.40 Also, the collection and processing of military intelligence information is prescribed as a task of the defence forces, being assisted by the national security authorities.41 The defence forces service staff and logistics centre are responsible for the practical service requirements for the implementation of the mission.42 Consequently, it is a general principle established in the defence laws of the Baltic States that the tasks of security, investigation, collection of intelligence information and service sustainment shall be carried out by the units of the armed forces or the state authorities on the basis of the entitlement stipulated in the law.

D. The Role of National Governments and the Entitlement of the Law The policy of contracting out defence and security tasks to PMSCs may be discussed by the governments of the Baltic States. However, 37

ibid, Art 61(1). ibid, Art 62(1). 39 Art 21 of the Defence Forces Organisation Act (Kaitseväe korralduse seadus) of 19 June 2008; Art 3(5) of the Latvian National Armed Forces Law (n 30); Art 19(1) of the Lithuanian Law on the Organisation of the National Defence System and Military Service (n 23). 40 Art 8 of the Law on Police (likums ‘Par policiju’) of 4 June 1991. 41 Art 36 of the Estonian Defence Forces Organisation Act (n 39); s 6.3.2 of the Lithuanian National Security Strategy (n 28). 42 Arts 19 and 20 of the Estonian Defence Forces Organisation Act (n 39). 38

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the parliaments maintain the prerogative of taking the final decision on recruiting private contractors due to the fact that the deployment of PMSCs in armed conflict zones abroad concerns the implementation of states’ international obligations, as well as defence and security policy. The Estonian Peace-Time National Defence Act affirms that by establishing that the government decides on national defence, including the national military strategy, the formation of military units and assigning of national defence tasks to state agencies, and then submits this security policy to the parliament for approval.43 In Lithuania, the government is responsible for issuing resolutions on supplying the armed forces, on procurement of arms, and the development of a logistical base of support within the National Defence System.44 The Lithuanian Law on the Organisation of the National Defence System and Military Service stipulates that the Minister of Defence shall establish procedures for the army to enter into transactions and other civil legal relationships.45 However, due to the international element in deployment of PMSCs abroad, the determination on the policy of contracting out defence and security tasks shall be taken by the parliaments. The Lithuanian case on the allegations of maintaining a detention facility for the Central Intelligence Agency (CIA) detainees illustrates the role of coordination of action between the state authorities on the implementation of the state security policy.46 The case concerned the alleged transportation of CIA detained persons to Lithuania and the Lithuanian State policy of preparing and providing the US with the detention centres. The Parliamentary Committee set up to investigate the decision making in this case established that the State Security Department had received a request to equip the facilities suitably for holding detainees. Private companies were used which, at the request of the State Security Department, prepared the detention centres for their further use by the CIA. However, the premises were not used for that purpose. The Parliamentary Committee concluded that the layout of the building made it possible that the facilities could be used by the partners without supervision or the presence of the State Security Department. 43

Art 5 of the Peace-Time National Defence Act 12 June 2002. Art 7 of the Lithuanian Law on the Organisation of the National Defence System and Military Service (n 23). 45 ibid, Art 11(3). 46 Resolution on the Findings of the Parliamentary Investigation by the Republic of Lithuania Seimas Committee on National Security and Defence Concerning the Alleged Transportation and Confinement of Persons Detained by the Central Intelligence Agency of the United States of America in the Territory of the Republic of Lithuania, 19 January 2010, No XI-659 with the Annex: Findings of the Parliamentary Investigation by the Republic of Lithuania Seimas Committee on National Security and Confinement of Persons Detained by the Central Intelligence Agency of the United States of America in the Territory of the Republic of Lithuania. The English version is available at www3.lrs.lt/pls/inter3/ dokpaieska.showdoc_e?p_id=364097&p_query=&p_tr2= (last accessed on 23 March 2011). 44

The Baltic States 133 Thus, procedurally, the top officials and the Parliamentary Committee on National Security and Defence were only generally informed about the State Security Department and the CIA cooperation implying implementation of the state security policy. The involvement of PMSCs providing defence, security or combat functions for the armed forces should be prescribed by the law. The Baltic States’ laws affirm this position. The Estonian International Military Cooperation Act, for example, states that other governmental authorities may participate in international military operations if the functions have been imposed by law.47 The Estonian Peacetime National Defence Act adopted by the parliament specifically prescribes the incorporation of militarily organised units belonging to the area of government of the Ministry of Internal Affairs into the defence forces provided that they are prepared to perform national defence tasks.48 This implies that delegation of military tasks and functions during international military missions to either the state authority or the private sector shall be prescribed by the law. The Lithuanian Law on the Organisation of the National Defence System and Military Service establishes that, within military territories, officials of civilian institutions may perform their functions only in cases stipulated by the government and the participation of the officers of the national defence system.49 Also, the Lithuanian Law on the Basics of National Security affirms that it is the law on the basis of which the state entitles the civil society, including private corporations, to perform state security tasks.50 Thus, the Baltic States’ laws stipulate the position that the delegation of defence, security or combat functions to PMSCs shall be prescribed by the law.

E. Civilian–Military Partnership and Policy Implications The defence policy statements and documents of the Baltic States indicate the purpose of general civilian–military partnerships in fulfilling defence and security tasks. However, they do not expressly refer to contracting out the defence and security tasks to PMSCs. The National Security Concept of Estonia stipulates the general motive that the added-value of civilian–military cooperation is necessary to ensure security.51 Also, the Main Guidelines of Estonia’s Security Policy until 2015 establish the principles of involvement and cooperation referring to the private 47

Art 9(1) of the Estonian International Military Co-operation Act (n 13). Art 17 of the Estonian Peace-Time National Defence Act (n 43). 49 Art 3(3) of the Lithuanian Law on the Organisation of the National Defence System and Military Service (n 23). 50 Art 2 of the Lithuanian Law on the Basics of National Security (n 24). 51 The National Security Concept of Estonia. The English version is available at www. mod.gov.ee/en/documents (last accessed on 23 March 2011). 48

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sector in the implementation of security policy.52 The document stresses the relevance of the ascertainment of common groups in public order protection activities, coordinated planning and implementation of these activities, as well as mutual consulting for the benefit of preserving safety. The Estonian Police Act53 prescribes the role of cooperation between the State and society and affirms the view that the participation of non-profit organisations, persons and associations of persons in the protection of public order and the fight against crime shall be regulated by the law.54 In a similar manner, the Latvian National Security Law55 states that the national security system is formed by the state authority and administration and Latvian citizens implementing the rights and duties in the field of national security delegated by the law. It further stipulates the state policy that that the national security system is based on civilian– military cooperation, the basic principle being effective cooperation, coordination, common understanding of the goals and shared responsibility for the results.56 The Latvian State Defence Concept prescribes that, for the stabilisation of a situation and for reconstruction of security in international crisis regions, a comprehensive approach involving both military and civilian means and finances is necesary. Therefore, Latvia is involved in the strengthening of international security not only by a military investment, but as far as possible with the civilian resources.57 The Latvian Ministry of Foreign Affairs emphasises the importance of civilian–military partnership in the enforcement of the tasks within the EU and NATO operations. The NATO and EU operational experiences in Afghanistan and Kosovo, as well as in the implementation of the counter-piracy initiatives in Somalia, prove that an integrated and comprehensive approach involving both military and civilian activities is important in the EU and NATO missions, and is the most suitable way to bring the conflict to a resolution with both organisations in the same region of operation.58 Also, the Latvian Ministry of Defence has made a statement that it plans to elevate the professionalism of military and civilian personnel involved in the provision of state defence and to encourage the use of company potential in the development of the

52 The Main Guidelines of Estonia’s Security Policy until 2015. The English version is available at www.siseministeerium.ee/25457/ (last accessed on 23 March 2011). 53 The Police Act (Politseiseadus) of 20 September 1990. 54 ibid, Art 6(2). 55 Art 3(1) of the Latvian National Security Law (n 18). 56 ibid, Art 3(2). 57 The State Defence Concept of the Republic of Latvia of 2008, no English version available. The Latvian version is available at: www.mod.gov.lv/Par%20nozari/Politikas_ planosana/Koncepcijas/Valsts_aizsardz.aspx (last accessed on 23 March 2011), para 36. 58 The EU Common Foreign and Defence Policy. Ministry of Foreign Affairs of the Republic of Latvia, no English version available. The Latvian version is available at www. mfa.gov.lv/lv/dp/DrosibasPolitikasVirzieni/KDAP/ (last accessed on 23 March 2011).

The Baltic States 135 defence system.59 Although none of the documents expressly refer to the deployment of PMSCs, the general principles elaborated on by the laws and policy documents implicitly refer to the discussion of the possible avenues and forms of involvement of PMSCs in conflict or post-conflict situations abroad. The Lithuanian Law on the Basics of National Security establishes the general principle of cooperation between the society (citizens of Lithuania, communities and organisations) and the state authorities to ensure national security. The authorisation for that shall be set in the laws.60 Thus, the Baltic States’ laws generally refer to a civilian– military partnership that does not, as a matter of principle, exclude the deployment of PMSCs in international military missions abroad. Another indication of the necessity for the authorisation of the law is clearly stipulated in the policy documents. There have been no public policy statements in the Baltic States on the question of contracting PMSCs for the performance of defence and security tasks abroad. However, the policy documents of the Baltic States imply that, as stated earlier, combat and defence tasks cannot be contracted out without the authorisation of the law and without ensuring proper training and preparedness for combat situations. The Lithuanian National Security Strategy mentions its purpose of developing highly skilled, well commanded and properly prepared military forces to carry out complex tasks and to justify the confidence of the public in the army and the confidence of the allies in the State of Lithuania.61 Further, the strict regulation of operational command and control issues means that without a specific delegation of tasks to PMSCs they may not perform combat or defence tasks alongside the national armed forces. The Baltic States’ laws and policy documents express a strong position on the chain of operational command of military operations and professional preparedness to combat and security situations.62 Thus, the Baltic States’ laws and policy documents normatively exclude the national armed forces from recruiting PMSCs for the purposes of implementation of their combat and defence tasks. The implementation of such a policy requires a firm authorisation stipulated in the laws.

59 The Policy planning of the Ministry of Defence of the Republic of Latvia, no English version available. The Latvian version is available at www.mod.gov.lv/Par%20nozari/ Politikas_planosana.aspx (last accessed on 23 March 2011). 60 Art 2 of the Lithuanian Law on the Basics of National Security (n 24). 61 Section 6.3.1.2 of the Lithuanian National Security Strategy (n 28). 62 Art 14(6) of the Lithuanian Law on the Organisation of the National Defence System and Military Service (n 23); the State Defence Concept of the Republic of Latvia of 2008, no English version available. The Latvian version is available at www.mod.gov.lv/Par%20 nozari/Politikas_planosana/Koncepcijas/Valsts_aizsardz.aspx (last accessed on 23 March 2011), paras 17 and 24.2.4.

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The Baltic States’ laws regulate private security and investigation services. As elaborated above, the laws of Estonia, Latvia and Lithuania provide for the definition of private security companies with a focus on the element of services, namely, providing security for persons and property.63 These services can be performed by either natural or legal persons.64 The Latvian law imposes a requirement that foreign investment by individual service providers and companies cannot exceed 50%.65 Similar restrictions can be imposed by the government of Estonia.66 The mandate for the performance of private security services is the acquisition of a licence.67 Licences are issued for up to five years by the police department at the Ministries of the Interior.68 Regarding foreign security companies, the Estonian law stipulates that they may be provided with a one-off licence granted by the Police Board, if they have not acquired a licence.69 In Lithuania, foreign private security companies possessing a licence issued by the European Union Member State may operate without a licence for up to three months. Regarding restrictions on the acquisition of a licence, in Estonia, private security companies must show that their documents indicate their specialisation in the provision of security services and that they are not involved with a company that manufactures or sells weapons.70 In Latvia and Estonia, the licence will not be issued or may be suspended if there are grounds to believe that the private security service provider is engaged in an anti-state or illegal organisation, or is a member of it, and poses a threat to state security.71 Among the reasons which give rise to the revocation of a licence, the Baltic States’ laws stipulate the cases of failure to act in accordance with the laws regulating their activity, disregard of public order and endangerment of national security, and operation in a manner that poses danger to the health and property of persons.72 63 Arts 1(1) and 4(1) of the Estonian Security Act (n 3); Art 1(4) of the Latvian Security Guard Activities Law (n 7); Art 2(14) of the Lithuanian Law on Security of Person and Property (n 3). 64 Art 5 of the Latvian Security Guard Activities Law (n 6). 65 ibid, Art 6(1). 66 Art 16(2) of the Estonian Security Act (n 3). 67 Art 5 of the Latvian Security Guard Activities Law (n 6). 68 Art 43(2) of the Estonian Security Act (n 3); Art 11 of the Latvian Security Guard Activities Law (n 6); the Lithuanian Law on Security of Person and Property (n 9). 69 Art 61 of the Estonian Security Act (n 3). 70 ibid, Art 44(2). 71 Art 6(2) of the Latvian Security Guard Activities Law (n 6); Art 50(2) of the Estonian Security Act (n 3). 72 Art 53 of the Estonian Security Act (n 3); Art 7 of the Latvian Security Guard Activities Law (n 6).

The Baltic States 137 In Estonia, Latvia and Lithuania, the State Police is the competent authority for exercising control over security guard activities.73 The Security Act of Estonia specifies that it is an obligation of a private security company to notify the police prefecture of the new objects placed under manned guard, termination of contracts and attacks made against the guarded object.74 It is also an obligation to inform the police if the use of a weapon or special equipment has caused physical harm or death of a person.75 The Estonian and Latvian laws stipulate that the legal basis for the provision of security services is a written contract.76 However, the state police authorities are not entitled to exercise their control extraterritorially if private security companies or their employees are deployed abroad. Private security companies are entitled to provide only those kinds of services that are specified in their licences.77 In Estonia, licences are issued for each type of security service (security consulting, guarding and protection of movable and real property, personal protection, maintaining order at an event or guarded object, operation of a monitoring centre, planning, installation and maintenance of security equipment) separately.78 The Latvian law prescribes two categories of special permits (licences): the first allows for engagement in the technical management of security guard systems; however, the second category permits broad functions, including the acquisition, storage and use of firearms and special means to ensure security company activities, if restrictions stipulated in the Law on the Handling of Weapons do not apply.79 In a similar manner, in Lithuania, the Regulation on licensing of activities of private security companies prescribes two types of licences—a licence for armed security services and a licence for unarmed security services. The kinds of services for which licences are issued in the Baltic States, even in certain cases where the use of arms is permitted, are not, however, of a character to provide defence or even combat tasks. The laws of Estonia contain prohibitions for private security companies on the manufacture, sale or repair of weapons, firearms and ammunition, as well as a prohibition of providing private detective services and performing police or national defence functions, except if provided by the law.80 Thus, the spheres of competence between state authorities and 73 Arts 15 and 61 of the Estonian Security Act (n 3); Art 2(4) of the Latvian Security Guard Activities Law (n 6); the Lithuanian Law on Security of Person and Property (n 9). 74 Art 15 of the Estonian Security Act (n 3). 75 ibid, Art 42(1). 76 Art 5(1) of the Estonian Security Act (n 3); Art 3 of the Latvian Security Guard Activities Law (n 6). 77 Art 5(1) of the Estonian Security Act (n 3); Art 5(2) of the Latvian Security Guard Activities Law (n 6). 78 Art 43(4) of the Estonian Security Act (n 3). 79 Arts 2, 5 and 8 of the Latvian Security Guard Activities Law (n 6). 80 Art 16(1) of the Estonian Security Act (n 3).

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private security companies are normatively delimitated on the basis of functions performed. Concerning natural persons, private security agents may either be individual proprietors or employees of a security company.81 The Baltic States’ laws provide specific requirements for security guards as one of the categories of private security agents. The main requirements for them include initial training, no criminal record for intentional commission of a criminal offence, no record of non-compliance with the lawful orders of state authorities or offences committed under the influence of alcoholic and narcotic substances, proficiency in the official language, personal characteristics, and physical condition and moral standards which demonstrate the capability of performing security guard activities.82 The Estonian law establishes a requirement for a private security agent to wear a uniform that is not misleadingly similar to the uniform of another security company, members of the defence forces, police officers, border guards or officials of fire service, prison or customs officers.83 The Estonian and Latvian laws require a private security agent to carry a certificate of employment and, when addressing a person, identify himor herself.84 Regular training is one obligation for private security agents in Estonia;85 others include respect for human rights while performing their functions and the carrying out of their duties without interfering in the competence of state and local government functions.86 The laws of the Baltic States regulate private investigation services. In Latvia, the Law on Detective Activity87 provides a normative framework for private investigation services as a specific type of commercial activity. In Lithuania, the Law on the Security of the Person and Property regulates detective activities. In Latvia, detective activities can be provided by either natural persons (detectives) or legal persons (detective companies).88 In order to provide private investigation services, detective companies are under an obligation to obtain a special permit (licence) and a detective must obtain a certificate for the performance of detective activity.89 In Latvia, a licence is issued for unspecified period of time; however, a certificate is issued for five years.90 A licence must not be issued to companies if the state security authorities possess information that persons holding positions in their administrative bodies belong to 81 82 83 84 85 86 87 88 89 90

ibid, Art 21(1). ibid, Art 21(2); Art 11(2) of the Latvian Security Guard Activities Law (n 6). Art 24(3) of the Estonian Security Act (n 3). ibid, Art 26; Art 12(1) of the Latvian Security Guard Activities Law (n 6). Art 27(1) of the Estonian Security Act (n 3). ibid, Art 33. Law on Detective Activity (Detektīvdarbības likums) of 5 July 2001. ibid, Art 2(1). ibid, Art 3(1). ibid, Art 3(2).

The Baltic States 139 prohibited militarised or armed units, political parties, or public organisations, associations or movements.91 The main activities of private detective companies are gathering information in civil and criminal matters, searching for persons who have committed a criminal offence or missing persons, ascertaining facts, matters or persons related to criminal activity, and consulting natural and legal persons.92 Detective activities may coincide with the gathering of evidence in criminal proceedings. In that case, the Latvian law stipulates that the detective shall notify the prosecutor’s office of his or her activity.93 Detective activities are controlled by the State Police.94 The Baltic States’ laws prescribe covert cooperation in investigatory operations. In Estonia, Latvia and Lithuania, the state authorities may recruit persons as covert assistants in investigatory operations, on the basis of voluntary and mutual trust.95 Covert cooperation may be remunerated.96 Covert assistants are under state protection and their activity is classified.97

V. P OS S E S S I ON OF ARMS, C OMMERC IAL HAN DLIN G OF AR MS AND G OOD S OF STRATEGIC SIGN IFIC AN C E

The Baltic States’ laws establish a general licensing regime for purchase, collection, storage, carrying, transfer and realisation of weapons by natural and legal persons. In Estonia, Latvia and Lithuania, weapons and ammunition that are restricted may be purchased and possessed only by obtaining a permit for the acquisition of arms, which is issued for three to six months.98 A person who has acquired a weapon is under an obligation to register it at the Police Department and upon registration the police issues a weapons permit.99 The Latvian law distinguishes 91

ibid, Art 5(1). ibid, Art 2(3). 93 ibid, Art 9(2). 94 ibid, Art 14. 95 Art 6(2) of the Estonian Surveillance Act (Jälitustegevuse seadus) of 22 February 1994; Art 30(1) of the Latvian Investigatory Operations Law (Operatīvās darbības likums) of 16 December 1993; Art 15(1) of the Lithuanian Law on Operational Activities of 20 June 2002. 96 Art 20(2) of the Estonian Surveillance Act (n 95); Art 30(3) of the Latvian Investigatory Operations Law (n 95). 97 Art 8(1) of the Estonian Surveillance Act (n 95); Art 31(1) of the Latvian Investigatory Operations Law (n 95). 98 Arts 19 and 32 of the Estonian Weapons Act (Relvaseadus) of 13 June 2001; Art 12 of the Latvian Law on the Handling of Weapons and Special Equipment (Ieroču un speciālo līdzeklu aprites likums) of 28 October 2010; Art 12(6) of the Lithuanian Law on the Control of Arms and Ammunition of 15 January 2002. 99 Arts 33(1) and 34 of the Estonian Weapons Act (n 98); Arts 13–15 of the Latvian Law on the Handling of Weapons and Special Equipment (n 98); Arts 9(2) and 12(10) of the Lithuanian Law on the Control of Arms and Ammunition (n 98). 92

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between the weapons permits of possession, carrying and realisation.100 A holder of a weapons permit is entitled to store, carry and convey a weapon and ammunition.101 A weapons permit issued for a legal person grants the right to acquire ammunition, to store and convey a weapon and ammunition, and to issue them to its employees.102 Weapons permits are issued by the State Police for five years.103 The general regulation with regard to acquisition, ownership, possession, storage and carrying of weapons applies to private security companies and their employees.104 While performing its tasks, the private security company may only use weapons that belong to the security company.105 The Estonian and Latvian laws prescribe the categories of weapons that may be used in the performance of security guard activities.106 The Latvian law also stipulates that security guard employees may carry specific category personal firearms if a licence for that has been issued.107 Weapons may only be used in cases where the life or health of a person is in danger or where it is not possible to eliminate the danger in any other way and the nature of the danger justifies the use of a weapon.108 In Estonia, private security companies are under an obligation to maintain records of cases where weapons have been used.109 Also, in Estonia, the possessor of weapon is under an obligation to notify the police if the use of weapon results in death or bodily injury of a person or material damage.110 Private security companies may use rubber truncheons, special-purpose marking and colouring equipment, handcuffs and service dogs.111 The laws of the Baltic States prescribe restrictions for natural and legal persons,112 as well as conditions for the acquisition, possession and

100 Arts 13–15 of the Latvian Law on the Handling of Weapons and Special Equipment (n 98). 101 Art 34(2) of the Estonian Weapons Act (n 98). 102 ibid, Art 34(6). 103 ibid, Art 34 (7) and (8); Art 12 of the Lithuanian Law on the Control of Arms and Ammunition (n 98). 104 Art 37(1) of the Estonian Security Act (n 3); Art 12 of the Lithuanian Law on the Control of Arms and Ammunition (n 98). 105 Art 37(2) of the Estonian Security Act (n 3). 106 Arts 31 and 51 of the Estonian Weapons Act (n 98); Art 15(1) of the Latvian Security Guard Activities Law (n 6). 107 Art 15(2) of the Latvian Security Guard Activities Law (n 6); Art 23(2) of the Latvian Law on the Handling of Weapons and Special Equipment (n 98). 108 Art 37(3) of the Estonian Security Act (n 3), Art 13 of the Latvian Security Guard Activities Law (n 6). 109 Art 37(4) of the Estonian Security Act (n 3). 110 Art 10 of the Estonian Weapons Act (n 98). 111 Arts 38 and 39(1) of the Estonian Security Act (n 3). 112 Art 9 of the Latvian Law on the Handling of Weapons and Special Equipment (n 98); Art 36(1) of the Estonian Weapons Act (n 98); Arts 10 and 18 of the Lithuanian Law on the Control of Arms and Ammunition (n 98).

The Baltic States 141 carrying of weapons and munitions.113 The Baltic States’ laws establish the rights and conditions of foreign citizens to acquire, possess, carry, transport and use specific kinds of weapons, even if a weapons permit has been issued by a foreign state.114 With regard to the commercial handling of weapons and other military goods, the service provider is under an obligation to pass a qualification examination and acquire a special permit (licence).115 Licences can be obtained by both individual service providers and commercial companies.116 In Lithuania, the Ministry of the Interior issues licences for manufacturing, repairing, displaying in exhibitions, exporting, importing and transporting weapons of various categories.117 However, the Ministry of Defence issues licences for the importing and manufacturing of military weapons and military goods, and for the performance of blasting or the provision of pyrotechnic services for the needs of the national armed forces.118 The transportation of firearms, firearm munitions and high-energy pneumatic weapons across the borders of Latvia and Lithuania is subject to acquisition of a permit for weapon or munitions import, export or transit.119 However, the transportation of arms within the European Union or the European Economic Area is also subject to acquisition of a European Firearm Pass.120 Concerning goods of strategic significance and dual-use goods, alongside international commitments under export control regimes, the regulation on the circulation of goods of strategic significance is set out in the Baltic States’ laws on strategic goods.121 Circulation (export, import and transit) of strategic goods between European Union Member States takes place on the basis of a licence issued by the respective Baltic State strategic goods commission.122 An import or transit licence is not

113 Arts 16–18, 22–24 of the Latvian Law on the Handling of Weapons and Special Equipment (n 98); Arts 31, 37 and 40 of the Estonian Weapons Act (n 98). 114 Arts 30(1) and (3) of the Estonian Weapons Act (n 98); Arts 38 and 39 of the Latvian Law on the Handling of Weapons and Special Equipment (n 98); Arts 10, 14 and 37 of the Lithuanian Law on the Control of Arms and Ammunition (n 98). 115 Art 41 of the Latvian Law on the Handling of Weapons and Special Equipment (n 98); Art 19 of the Lithuanian Law on the Control of Arms and Ammunition (n 98). 116 Art 41 of the Latvian Law on the Handling of Weapons and Special Equipment (n 98). 117 Art 23 of the Lithuanian Law on the Control of Arms and Ammunition (n 98). 118 ibid, Art 23(1). 119 Art 37 of the Latvian Law on the Handling of Weapons and Special Equipment (n 98); Art 23 of the Lithuanian Law on the Control of Arms and Ammunition (n 98). 120 Art 37 of the Latvian Law on the Handling of Weapons and Special Equipment (n 98). 121 The Estonian Strategic Goods Act (Strateegilise kauba seadus) of 17 December 2003; the Latvian Law on the Circulation of Goods of Strategic Significance (Stratēģiskas nozīmes preču aprites likums) of 21 June 2007; the Lithuanian Law on the Control of Strategic Goods of 5 April 1995. 122 Art 5(1) of the Estonian Strategic Goods Act (n 121); Arts 3 and 12 of the Latvian Law on the Circulation of Goods of Strategic Significance (n 121); Art 6 of the Lithuanian Law on the Control of Strategic Goods (n 121).

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required when goods are transported from a European Union Member State without the mediation of a service provider.123 Concerning transfer, export, import or transit of military goods specified in the Common Military List of the European Union, a special permit (licence) issued by the Baltic States’ Ministries of Defence must be acquired.124 For the licence, individual service providers or commercial companies must not have acted against the security and foreign policy interests of a state, must have observed the restrictions imposed by international agreements or international organisations, must not have exported or transferred weapons of mass destruction, must not have imported, exported and transferred in transit goods used to commit human rights violations and must not have belonged to prohibited military or armed groups.125 In Estonia, in cases of services related to military goods, service providers who operate within the framework of a military or a humanitarian mission are exempted from the obligation to apply for a licence.126

V I . C ORP ORATE LAW, LABOUR LAW AND P UBLIC P ROC UREMEN T

In the Baltic States, the corporate laws require that natural persons or companies engaged in commercial activity register with the national commercial registers.127 That includes the registration of branches of foreign companies.128 In Lithuania, the Law on Enterprises provides a separate general regulation of entities (both natural and legal persons) engaged in commercial economic activities and applies to foreign state enterprises establishing their branches in Lithuania.129 In Estonia, natural persons may be entered in the register upon request,130 but the Estonian Commercial Code requires natural persons to register with the Tax and Customs Board as taxpayers before filing their entry with the commercial register. That predetermines a certain element of control over natural persons being employed in the private security or military sector. This 123 Art 4(1) of the Latvian Law on the Circulation of Goods of Strategic Significance (n 121); Art 6 of the Lithuanian Law on the Control of Strategic Goods (n 121). 124 Art 1(2) of the Estonian Strategic Goods Act (n 121); Art 5(2) of the Latvian Law on the Circulation of Goods of Strategic Significance (n 121). 125 Art 5(4) of the Latvian Law on the Circulation of Goods of Strategic Significance (n 121); Art 7(1) of the Estonian Strategic Goods Act (n 121); Art 7 of the Lithuanian Law on the Control of Strategic Goods (n 121). 126 Art 14(2) of the Estonian Strategic Goods Act (n 121). 127 Art 1 of the Latvian Commercial Law (Komerclikums) of 13 April 2000; Art 11(1) of the Lithuanian Law on Companies of 13 July 2000. 128 Art 75(2) of the Lithuanian Law on Companies (n 127). 129 The Lithuanian Law on Enterprises of 8 May 1990. 130 Art 3(2) of the Estonian Commercial Code (Äriseadustik) of 15 February 1995.

The Baltic States 143 registration may also be a relevant factor for determining whether they are remunerated for the services provided abroad. The corporate laws of the Baltic States permit undertakings to assume operation in the areas of activity which are not prohibited by law.131 Under the corporate laws of the Baltic States, companies are under an obligation to submit annual reports, specify their planned principal activity and keep the register informed about any changes.132 Separate types of commercial activities may be carried out only after the acquisition of a permit (licence).133 This concerns the operation of PMSCs as well as private security agents. The Lithuanian Law on Enterprises stipulate the fields of commercial economic activities requiring licensing (fields of increased danger to human life, health, environment, manufacture and acquisition of armament, goods and services for which a special procedure of product sale or service may be established) and general requirements for the licensing regime.134 The registration of PMSCs as commercial companies or individual service providers will not include any information with regard to performance of their services abroad. Concerning labour law, the Baltic States’ labour laws do not provide for specific regulation for PMSCs, and therefore any normative requirements which may have an impact on labour relations are those set out in the private security laws. The Lithuanian Labour Code stipulates that it is a state obligation to support the implementation of labour rights.135 In exceptional cases, labour rights may be restricted by law or a court judgment, if such restrictions are necessary in order to protect public order, public morals, public health, property rights and legal interests.136 The general regulation of labour laws prescribes a written form for an employment contract.137 The contract shall determine the main rules for the exercise of military or security functions, details of employment like pre-mission training, legal status of contractor and immunities. The Lithuanian Labour Code establishes that, apart from the general labour law, companies may adopt internal regulatory acts (codes of conduct) establishing working conditions and social privileges.138 The Baltic States’ labour laws establish the applicable law to labour relations. As a general principle, an employer and employee may agree 131 Art 4(1) of the Estonian Commercial Code (n 130); Art 12 of the Lithuanian Law on Enterprises (n 129). 132 Art 4(5) of the Estonian Commercial Code (n 130). 133 ibid, Art 4(2); Art 4 of the Latvian Commercial Law (n 127); Art 12 of the Lithuanian Law on Enterprises (n 129). 134 Art 13 of the Lithuanian Law on Enterprises (n 129). 135 Art 2(2) of the Lithuanian Labour Code of 4 June 2002. 136 ibid, Art 2(2). 137 Art 4(1) of the Estonian Employment Contracts Act (Töölepingu seadus) 17 December 2008; Art 40 of the Latvian Labour Law (Darba likums) of 20 June 2001. 138 Art 4(3) of the Lithuanian Labour Code (n 135).

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on the law applicable to an employment contract and employment legal relationship.139 The Lithuanian Labour Code establishes that it may be stipulated in international agreements or national laws that foreign law is the applicable law to labour relations, but the foreign law cannot be applied in cases where its application is contrary to public order.140 Concerning the legal basis of the conclusion of a labour contract, the Latvian Labour Law emphasises that a labour contract can be concluded on the basis of either the laws of Latvia or the laws of another state chosen by the parties.141 The Lithuanian Labour Code states that labour laws are applicable to labour relations in the territory of Lithuania regardless of whether a person is employed in Lithuania or has been posted abroad.142 The Lithuanian Labour Code defines illegal work as work that is performed without the conclusion of an employment contract or that is performed by foreign citizens and stateless persons failing to comply with the procedure established under national laws.143 The Labour Code stipulates that, in cases where holding a post or performing work requires special knowledge, an obligation to pass a qualification examination may be imposed.144 The Baltic States’ labour laws contain the possibility of temporary workers, where contracts can be concluded for a specific period of time. These include work in areas where an employment contract is not normally entered into for an unspecified period of time, taking into account the nature of the occupation or the temporary nature of the respective work.145 Temporary contracts shall be concluded for a time no longer than three years.146 In Estonia and Lithuania, these may not exceed the duration of five years.147 An employer may even contract an independent private contractor for the performance of a particular task or assignment, where the contract will be based on the laws on the supply of services.148 The Baltic States’ laws also deal with the situation when the work performed may not be in conformity with the contract. This includes cases when the work has not been performed in a proper manner due to

139

Arts 6 and 7 of the Lithuanian Labour Code (n 135). ibid, Art 6. 141 Art 13 of the Latvian Labour Law (n 137). 142 Art 5(1) of the Lithuanian Labour Code (n 135). 143 ibid, Art 98. 144 ibid, Art 103(1). 145 Art 44 of the Latvian Labour Law (n 137). 146 ibid, Art 45. 147 Art 4(1) of the Estonian Employment Contracts Act (n 137); Art 109 of the Lithuanian Labour Code (n 135). 148 The Estonian Law of Obligations Act (Võlaõigusseadus) of 26 September 2001; Art 116 of the Lithuanian Labour Code (n 135). 140

The Baltic States 145 failure to rely on performer’s professional skills.149 The termination of a contract from the side of employer may take place in cases of employees acting negligently or committing other violations of labour discipline or a gross breach of duties.150 A gross breach of duties includes participation in activities which, according to the laws, are incompatible with the functions of work.151 As a general principle, the exercise of labour rights and fulfilment of labour duties may not violate the rights and legally protected interests of others.152 Concerning damages incurred by third parties in the course of the action of PMSCs, the labour and civil laws stipulate that the employer shall reimburse damages towards third parties.153 The employer is entitled to deduct the amount of losses incurred due to an illegal, culpable action of the employee from that employee’s wages.154 The labour law is complemented by civil law, which anticipates the civil liability of an employer for losses caused by its employees where he or she has failed to exercise due care in choosing employees whose qualities are suitable for the performance of the duty.155 However, the contract may contain different clauses for liability to be shared between employer and employee. Concerning public procurement, in cases where governments choose to contract out defence or security services, the rules of public procurement will be applicable—an area harmonised in the field of the European Union law. However, it will be the role of the Baltic States’ governments to decide under which contracts concerning military and defence matters the public procurement rules will apply. For example, the Baltic States’ public procurement laws stipulate that the law is not applicable if the application thereof may cause harm to the protection of substantial interests of the state that are determined by the government.156 However, the Latvian law specifically stipulates that it is applicable in the field of defence.157 The Lithuanian law excludes from the sphere of competence of public procurement contracts awarded by the Lithuanian 149

Art 641 of the Estonian Law of Obligations Act (n 148). Art 136(3) of the Lithuanian Labour Code (n 135). 151 ibid, Art 235. 152 ibid, Art 35(2). 153 Art 76(2) of the Estonian Employment Contracts Act (n 137); Art 79 of the Latvian Labour Law (n 137); Art 2185 of the Latvian Civil Law (Civillikums) of 1 September 1992; Art 253 of the Lithuanian Labour Code (n 135). 154 Art 73(1) of the Estonian Employment Contracts Act (n 137); Art 79 of the Latvian Labour Law (n 137). 155 Art 1782 of the Latvian Civil Law (n 153). 156 Art 3(3) of the Latvian Public Procurement Law (Publisko iepirkumu likums) of 6 April 2006; see also: Art 14(1) of the Estonian Public Procurement Act (Rahandusministeeriumi tõlge) of 24 January 2007; Art 10(1) of the Lithuanian Law on Public Procurement of 6 September 1997. 157 Art 4(1) of the Latvian Public Procurement Law (n 156). 150

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army units stationed in foreign states under international agreements. The procedure for those shall be laid down by the government.158 The Baltic States’ laws on public procurement refer to services. They define a service provider as a natural or a legal person, or an association of the two, that offers performance and work, or supply of products or provision of services.159 The Baltic States’ laws provide a list of public service agreements (that comprise goods and services) to which public procurement rules will apply.160 The list includes the provision of investigation and security services.161 Others which may be applicable to PMSCs include land transport services, including services of armoured fitting vehicles, courier services, passenger and cargo air transport services, electronic communication services, supporting and auxiliary transport services, and legal services.162 The Baltic States’ public procurement laws set transparent procurement procedures, free competition of suppliers and efficient use of state and local government funds as their main purposes.163 The state authority may request evidence that the service provider has a licence for the performance of particular activity.164 To verify their professional ability, service providers may be asked to submit additional information on the services provided over the last three to five years.165 A candidate may be excluded from the procurement procedure if it or its representative has been found guilty of grave professional misconduct concerning professional or occupational behavioural rules.166 Public services agreements may be concluded for a definite period of time, but for no longer than five years.167

V II. C IV IL LIABILITY

The Baltic States’ laws contain detailed rules on the applicable law as to the choice of law, incorporation of legal persons, form of transac-

158

Art 10(1) of the Lithuanian Law on Public Procurement (n 156). Art 1(11) of the Latvian Public Procurement Law (n 156); Arts 2(25) and 5(1) of the Lithuanian Law on Public Procurement (n 156). 160 Art 4(5) of the Estonian Public Procurement Act (n 156); Art 1(14) of the Latvian Public Procurement Law (n 156). 161 Annex 2 of the Latvian Public Procurement Law (n 156); Annex 2 of the Lithuanian Law on Public Procurement (n 156). 162 ibid. 163 Art 1 of the Estonian Public Procurement Act (n 156); Art 2 of the Latvian Public Procurement Law (n 156). 164 Art 40(1) of the Latvian Public Procurement Law (n 156). 165 Art 41 of the Estonian Public Procurement Act (n 156). 166 Art 38(2) of the Estonian Public Procurement Act (n 156). 167 Art 67(3) of the Latvian Public Procurement Law (n 156). 159

The Baltic States 147 tion, claim of damages and contracts.168 The choice of law governing the settlement of disputes, execution of obligations and rights and duties arising out of contract is subject to agreement of the parties.169 The agreement on the applicable law shall not conflict with the mandatory norms of the states’ laws.170 According to Latvian law, if the contract does not contain the clause on the applicable law, the law of the state where the obligation is to be performed applies.171 The Estonian and Lithuanian laws prescribe a similar rule that, if the main activity of a legal person is not conducted in the country where its directing body is located, the law of the country where the main activity is conducted or the country with which the contract is most closely connected applies.172 However, according to Latvian law, if it is not possible to determine the place of performance of the contract, the law of the place where the contract was concluded shall be applicable.173 Concerning delicts, the law of the country where damage has occurred174 or the consequences have become evident applies.175 If it is not possible to determine the country where it occurred, the law of the country most closely connected shall apply.176 If both parties are domiciled in the same state, the laws of that country apply.177 The Baltic States’ laws stipulate the principle of freedom of contract in private law relationship and the principle of party autonomy. The Baltic States’ laws contain a prohibition of concluding a contract that is by its nature or content illegal, immoral or dishonest, is contrary to public order or good morals, or violates the person’s fundamental rights.178 Concerning the termination of a contract, contracts shall determine specific instances when they can be terminated by either of the parties or on another basis prescribed by the contract or law.179 The general normative framework governing termination of a contract is contained in the labour laws. Any transaction that does not correspond to the 168 Estonian Private International Law Act (Rahvusvahelise eraõiguse seadus) of 22 March 2002; Civil Code of Lithuania of 18 July 2000. 169 Art 32(1) of the Estonian Private International Law Act (n 168); Art 19(1) of the Latvian Civil Law (n 153); Art 1.37 of the Lithuanian Civil Code (n 168). 170 Art 32(3) of the Estonian Private International Law Act (n 168); Art 19(1) of the Latvian Civil Law (n 153); Arts 1.11 and 1.37 of the Lithuanian Civil Code (n 168). 171 Art 19(2) of the Latvian Civil Law (n 153). 172 Art 33(1) of the Estonian Private International Law Act (n 168); Art 1.37 of the Lithuanian Civil Code (n 168). 173 Art 19(3) of the Latvian Civil Law (n 153). 174 Art 50(1) of the Estonian Private International Law Act (n 168); Art 20 of the Latvian Civil Law (n 153). 175 Art 50(2) of the Estonian Private International Law Act (n 168); Art 1.43 of the Lithuanian Civil Code (n 168). 176 Art 1.43 of the Lithuanian Civil Code (n 168). 177 ibid. 178 Art 5 of the Estoanian Law of Obligations Act (n 148); Art 1592 of the Latvian Civil Law (n 153); Art 1.2 of the Lithuanian Civil Code (n 168). 179 Art 13 of the Estonian Law of Obligations Act (n 148).

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requirements of mandatory statutory provisions and is contrary to public order or good morals shall be null and void.180 With regard to civil liability, the general civil law provisions of the Baltic States stipulate liability arising out of a contractual relationship and in tort. The Estonian and Lithuanian laws establish the duty to compensate for damage due to non-performance of contract.181 Parties may also choose additional provisions to be included in a contract to pledge contractual obligations, such as contractual penalties.182 There is also a duty to compensate for any loss which is not incidental and arising out of tort.183 The Baltic States’ laws also govern compensation claims for material and non-material damage.184 The Lithuanian law defines damage as the amount of loss or damage to property sustained by a person and expenses incurred, as well as income of which he has been deprived.185 It states that non-pecuniary damage is a person’s suffering, emotional experiences, mental shock, emotional depression, humiliation, etc, evaluated in terms of money.186 Damage must be compensated in full, except in cases when limited liability is established by law or a contract.187 An agreement to exclude civil liability for damages sustained because of intentional fault or gross negligence is null and void.188 It is also not permitted to exclude or limit civil liability for the impairment of health, deprivation of life or non-pecuniary damage.189 The civil law principles on liability are complemented by the laws on private security companies. The Latvian Security Guard Activities Law obliges private security companies to remunerate third persons for the losses that have incurred due to the security service activity. The Latvian law imposes an insurance requirement for the loss of the third party life, injury and property damage.190

180

Arts 1.80 and 1.81 of the Lithuanian Civil Code (n 168). Art 101 of the Estonian Law of Obligations Act (n 148); Arts 6.245, 6.258 and 6.62 of the Lithuanian Civil Code (n 168). 182 Art 158 of the Estonian Law of Obligations Act (n 148); Art 1691 of the Latvian Civil Law (n 153); Art 6.71 of the Lithuanian Civil Code (n 168). 183 Arts 1037 and 1043 of the Estonian Law of Obligations Act (n 148); Art 1775 of the Latvian Civil Law (n 153); Arts 6.245 and 6.263 of the Lithuanian Civil Code (n 168). 184 Art 128 of the Estonian Law of Obligations Act (n 148); Art 1635 of the Latvian Civil Law (n 153). 185 Art 6.249 of the Lithuanian Civil Code (n 168). 186 ibid, Art 6.250. 187 ibid, Art 6.251. 188 ibid, Art 6.252. 189 ibid. 190 Art 19(1) of the Latvian Security Guard Activities Law (n 6). 181

The Baltic States 149 V I I I . C R I M IN AL RESP ON SIBILITY

In the Baltic States, mercenary activities are not prohibited as such. The Baltic States are not parties to the 1989 International Convention Against the Recruitment, Use Financing and Training of Mercenaries. However, the Baltic States’ citizenship laws stipulate that citizenship may be revoked if a person is serving in foreign armed forces, internal military forces, foreign intelligence or security service, or police (militia), or is employed in a justice affairs service of a foreign state without the permission of the government.191 The Baltic States’ criminal laws stipulate the universal jurisdiction principle, stating that a person who has committed a criminal offence contained in an international agreement binding on the country in another state shall, irrespective of the laws of the country where the offence was committed, be held liable in accordance with the national criminal law.192 They also contain the traditional bases of jurisdiction of territoriality,193 active and passive personality.194 The Baltic States’ laws prescribe criminal responsibility for the core crimes—genocide,195 crimes against humanity,196 war crimes,197 aggression198—and separate provisions for violence against civilians in the area of hostilities,199 unlawful treatment of prisoners of war or interned civilians200 and marauding.201 The Latvian law criminalises the establishment of a criminal organisation for the purpose of commission of especially serious crimes against humanity or peace, war crimes, genocide or commission of especially serious crimes against a state, the involvement in such an organisation or in an organised group included 191 Art 21(1) of the Estonian Citizenship Act (Kodakondsuse seadus) of 19 January 1995; Art 24(1) of the Latvian Citizenship Law (Pilsonības likums) of 22 July 1994; Art 18 of the Lithuanian Law on Citizenship 17 September 2002. 192 Art 7(2) of the Estonian Penal Code (Karistusseadustik) of 6 June 2001; Art 4(4) of the Latvian Criminal Law (Krimināllikums) of 17 June 1998; Art 7 of the Lithuanian Criminal Code of 26 September 2000. 193 Art 6 of the Estonian Penal Code; Arts 2 and 3 of the Latvian Criminal Law; Art 4 of the Lithuanian Criminal Code (all n 192). 194 Art 7(1) of the Estonian Penal Code; Art 4 of the Latvian Criminal Law; Art 5 of the Lithuanian Criminal Code (all n 192). 195 Art 90 of the Estonian Penal Code; Art 71 of the Latvian Criminal Law; Art 99 of the Lithuanian Criminal Code (all n 192). 196 Art 89 of the Estonian Penal Code; Art 712 of the Latvian Criminal Law; Art 100 of the Lithuanian Criminal Code (all n 192). 197 Arts 94–109 of the Estonian Penal Code; Arts 74–76 of the Latvian Criminal Law; Arts 101–09, 111–13 of the Lithuanian Criminal Code (all n 192). 198 Art 91 of the Estonian Penal Code; Art 72 of the Latvian Criminal Law; Art 110 of the Lithuanian Criminal Code (all n 192). 199 Arts 95 and 97 of the Estonian Penal Code; Art 75 of the Latvian Criminal Law; Arts 101–05 of the Lithuanian Criminal Code (all n 192). 200 Art 98 of the Estonian Penal Code (n 192). 201 Art 109 of the Estonian Penal Code; Art 76 of the Latvian Criminal Law; Art 113 of the Lithuanian Criminal Code (all n 192).

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within such an organisation or other criminal formation.202 The Estonian and Latvian laws also criminalise unlawful activities with firearms and explosives without an appropriate permit,203 as well as violations of provisions on the circulation of strategic goods.204 Concerning the punishments, Estonian law prescribes that the court may prevent a convicted offender from working in a certain position or operating in a certain area of activity for up to three years, if they are convicted for the abuse of professional duties.205 Also, a court may deprive a convicted offender for up to five years of the right to acquire, store, supply or carry weapons or ammunition if the person is convicted of a criminal offence relating to holding or use of weapons or ammunition.206 The Estonian Penal Code considers the commission of an offence during a state of emergency or a state of war to be an aggravating factor.207 With regard to command responsibility, the Latvian criminal law does not prescribe command responsibility as the basis for conviction. The Estonian criminal law establishes command responsibility for criminal offences provided in the section ‘Offences against humanity and international security’, stipulating that the representative of state powers or the military commander who issued the order to commit the offence, consented to the commission of the offence or failed to prevent the commission of the offence although it was in his or her power to prevent it shall be punished in addition to the principal perpetrator.208 Lithuanian law stipulates the criminal responsibility of a serviceman who gives a distinctly unlawful order or coerces another serviceman into carrying out such an order.209 The Baltic States’ criminal laws establish the concept of criminal responsibility of legal persons. Legal persons shall be held responsible for an act committed by a natural person in the interests of a legal person.210 Although the Latvian law does not denominate it as criminal responsibility of legal persons, but coercive measures applicable to legal persons, it still entrenches the concept of criminal responsibility of legal persons. Prosecution of a legal person does not preclude the prosecution of the natural person who committed the offence.211 With regard 202

Art 891 of the Latvian Criminal Law (n 192). Art 93 of the Estonian Penal Code (n 192); Arts 233 and 237 of the Latvian Criminal Law (n 192). 204 Art 2371 of the Latvian Criminal Law (n 192). 205 Art 49 of the Estonian Penal Code (n 192). 206 ibid, Art 51. 207 ibid, Art 58. 208 ibid, Art 88(1). 209 Art 321 of the Lithuanian Criminal Code (n 192). 210 Art 14(1) of the Estonian Penal Code; Art 701 of the Latvian Criminal Law; Art 20 of the Lithuanian Criminal Code (all n 192). 211 Art 14(2) of the Estonian Penal Code (n 192). 203

The Baltic States 151 to punishment, the Baltic States’ criminal laws prescribe compulsory dissolution, limitation of rights, confiscation of property and pecuniary punishment.212 Compensation claims may be applied as an additional coercive measure to legal person if the criminal offence has caused significant harm or serious consequences.213 Estonian law prescribes that a supplementary punishment of deprivation of the right to process state secrets and classified information of foreign states may be imposed.214

I X . C ON C LUSION

The Baltic States’ laws primarily concentrate on the regulation of the activity of private security companies. The Estonian law makes an explicit reference to the definition of private military companies, though without providing a further normative regulation. The function attributed to private security companies is to provide security to persons and property and engage in security consulting. Moreover, the Baltic States’ laws focus rather on the definition of private security services than establish concepts of private security companies as such. They thereby refer to the autonomous operability of private security companies for the performance of a concrete task and make it questionable whether they can be integrated in the national armed forces under their military command and control. The tasks of provision of security services, investigation and collection and processing of military intelligence information have been allocated to the units of the armed forces and state security authorities themselves. The Baltic States’ regulation of the national armed forces predetermines that outsourcing of defence and security tasks to private security companies cannot take place without an authorisation prescribed by the law. The laws and defence policy documents of the Baltic States support the position of civilian–military cooperation for the accomplishment of the defence tasks. However, they do not expressly refer to the deployment of private security companies nationally or abroad. According to the national laws of the Baltic States, it shall be the role of the parliament to affirm the policy of outsourcing defence or security tasks to private industry by stipulating it in the law or on case-by-case basis. The issue concerns the implementation of national defence and security policy, as well as state international obligations that must be decided by the parliament. It is implied in the national defence laws that the additional requirement of professional training adequate to the 212 ibid, Art 44(8); Art 702(1) of the Latvian Criminal Law (n 192); Arts 43 of the Lithuanian Criminal Code (n 192). 213 Art 702(6) of the Latvian Criminal Law (n 192). 214 Art 551 of the Estonian Penal Code (n 192).

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level of preparedness of the national armed forces will be considered if significant defence and security tasks are outsourced to private industry. A licensing regime has been put in place for the provision of private security and investigatory activities in the Baltic States, under the supervision of state police departments. However, this does not encompass cases, where private security companies or their employees are recruited by foreign security companies, or other states or international organisations. The Baltic States’ laws establish that private security companies are entitled to provide only those kinds of services that are specified in licences. Thus, if private security companies are focused on the provision of security for persons and property, then normatively they are not entitled to perform defence or even combat tasks. The national laws impliedly affirm the view that, for performing of defence tasks by private security companies, a legal authorisation is necessary. The Baltic States’ laws regulating the acquisition, ownership, possession, storage and carrying of weapons apply to private security companies and their employees. The commercial handling of weapons and military goods requires the acquisition of a special permit (licence). The licensing regime is in place for circulation of goods of strategic significance and dual-use goods. The corporate laws of the Baltic States require the registration of PMSCs. The performance of particular kinds of activities may be subjected to of the need for a special permit (licence). The Baltic States’ labour laws do not provide specific regulation concerning PMSCs, but they thoroughly regulate the application of foreign law to labour relations and liability issues. In cases of contracting out defence and security tasks, the applicability of public procurement rules will arise. Although the Baltic States’ laws stipulate that public procurement applies in defence matters, it is the role of the national governments to exempt the contracts concluded by the army units from the field of applicability of public procurement. However, public procurement rules apply to investigation and security services, transport and communication services. The Baltic States’ civil laws stipulate that the principle of freedom of contract applies to the private military and security industry. That includes the choice of applicable law. If the contract does not establish the applicable law, the law of the country where the obligation is to be performed or of the country with the closest connection shall apply. If this is impossible to determine, the law of the country where the contract has been concluded applies. In a delictual relationship, the law of the country where the damage occurred shall apply. There is a firm regulation on civil liability of private parties arising out of contractual relationship and delicts. The Baltic States do not criminalise mercenary activity. However, their citizenship laws prescribe that citizenship may be revoked due

The Baltic States 153 to service in the foreign armed forces, intelligence or security services without the permission of the government. The Baltic States’ criminal laws establish the traditional basis of jurisdiction, including universal jurisdiction and responsibility for the core international crimes. The Estonian and Lithuanian laws prescribe command responsibility as a basis for conviction. The Baltic States’ laws establish criminal responsibility of legal persons and stipulate that a compensation claim may form an additional coercive measure alongside punishments prescribed for legal persons. To conclude, the Baltic States’ laws maintain a strict normative separation of state prerogative of enforcement of defence functions and private industry providing specific security services. It shall be the decision of the parliament to contract out the vital defence tasks to private sector. Alongside that, traditional civil law principles applicable to PMSCs may require reconsideration as to their normative applicability to the civilian–military relationship, which entails state responsibility, military training, structure and control.

7 Belgium AXELLE REITER

I . G E NE R AL F R AMEWORK AN D ATTITUDE TOWAR DS I NT ERN ATION AL IN ITIATIV ES

B

ELGIUM PROVIDED MERCENARIES during the period of crisis that followed the independence of the Democratic Republic of Congo in the 1960s. They were employed on several occasions; in particular, to promote the secession of Katanga, to defeat the patriotic nationalist forces, to execute a coup d’état, and to protect the commercial interests and concessions of the Belgian private company Union Minière. More recently, Belgian mercenaries have been used by the official Congolese government for military support against the rebels, in 1996. In May 2002, Belgium ratified the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries,1 which had entered into force in 2001, with a reservation to the effect that ‘no provision of the Convention should be interpreted as implying, for Belgium, an obligation to extradite Belgian nationals’. It has entered a further reservation to the effect that no provision of the present Convention should be interpreted as implying an obligation of mutual judicial assistance [or] an obligation of extradition if the requested state party has reason to believe that the request . . . has been submitted for the purposes of prosecuting or punishing a certain person on the grounds of ethnic origin, religion, nationality or political views, or if acceding to the request would prejudice the situation of that person on any of those grounds.

Belgium is a monist state. The application of international rules can be claimed directly before the national courts and they have precedence over contradictory domestic legislation. 1 UN Doc A/RES/44/34, ‘International Convention against the Recruitment, Use, Financing and Training of Mercenaries’ (1989). Law Enacting the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, done in New York on the 4th of December 1989, 29 January 2002, Moniteur Belge, 17 October 2002.

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At the national level, in 1979, the Belgian parliament passed legislation banning the recruitment and participation of its nationals in foreign armies to fight in foreign countries, but the necessary royal decree to enact this law was never issued. As a result, there was a regulatory vacuum in Belgian law and no set of rules specifically dealing with the use and conduct of private military companies and private security companies outside of the national borders. The 1979 law was modified in 2003, after the ratification of the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, in order to put the national legislation in conformity with the international obligations that Belgium had undertaken.2 The amended text now provides for a sentence of three months to two years of imprisonment for the recruitment, and any other acts susceptible to encouraging or facilitating the recruitment, of persons for the benefit of a foreign army or a foreign force on the territory of a foreign state. In addition, it allows the regulation by royal decree of related offences and subjects their authors to the same sanction. Attempts at committing both sets of offences are also penalised by an identical period of incarceration as their commission. The recruitment by a state of its own nationals and its enlistment of foreigners as regular members of its armed forces, as long as they are not used outside of its national territory, are exempted from the scope of the law; as are military technical assistance by one state to another, the exercise by a state of its international obligations or its participation to international police operations in the frame of organisations to which it belongs. Finally, the general part of the penal code is applicable to the infractions to the present law. More broadly, the Belgian penal code also condemns grave violations of humanitarian law and international crimes, like genocide, crimes against humanity and war crimes.3 Offences committed on the national territory, be it by citizens or foreigners, are punished in accordance with Belgian law, while offences committed abroad are only prosecuted in Belgium if the law specifies it.4 In this regard, Belgian citizens and residents can be prosecuted for grave violations of humanitarian law committed abroad.5 Secondly, the national courts can penalise the foreign authors of such crimes who are not residing in Belgium provided that, at the time of the offence, a victim held Belgian citizenship, refugee status or regular residence on the national territory for at least three years. However, in such cases, 2 Law Modifying Belgian Law to Comply with the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, adopted in New York on the 4th of December 1989, 22 April 2003, Moniteur Belge, 23 June 2003. 3 Penal Code, Book II, Title I bis, Arts 136 bis–136 octies. 4 ibid, Book I, Arts 3 and 4. 5 Code of Criminal Proceedings, Preliminary title, ch II, Art 6.

Belgium 157 the federal prosecutor only orders the judge of instruction to investigate the abuses after controlling the admissibility of the complaints and the appropriateness of trying them in another forum.6 Thirdly, members of the armed forces, people authorised to follow an army corps and the other persons subject to military laws can be prosecuted for all offences committed abroad.7 More recently, Belgium has shown some reluctance towards international initiatives regulating the use and activities of private military and security companies abroad. It did not take part in the elaboration of either the 2008 Montreux Document on Private Military and Security Companies or the 2010 International Code of Conduct for Private Security Service Providers. Moreover, it is opposed to the adoption of a draft Convention on Private Military and Security Companies, aimed at establishing minimum standards to regulate the recourse to these companies and monitor their activities, which was presented in September 2010 to the Human Rights Council by the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-determination.8 For this reason, it has voted against the 2010 resolution by the Human Rights Council, which creates an intergovernmental working group charged with the elaboration of such an international regulatory framework, taking into account the text drafted by the working group.9 On the other hand, private militias and private military companies have been prohibited on national territory since 1934.10 The 1990 law on private security services excludes from the scope of this prohibition private safe-keeping and security companies to which it applies.11 In consequence, it constitutes the main regulatory framework for the exercise of private military and security activities in Belgium. It also derogates from the ordinary rules regulating the carriage of weapons and ammunitions. Under these rules, nobody can carry defensive weapons unless for a legitimate reason and subject to holding the appropriate licence, which is granted for a maximum renewable period of three years. In 6

ibid, Art 10. ibid, Art 10 bis. 8 UN Human Rights Council, ‘Report of the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-determination’, 2 July 2010. 9 UN Doc A/HRC/RES/15/26, ‘Open-ended Intergovernmental Working Group to Consider the Possibility of Elaborating an International Regulatory Framework on the Regulation, Monitoring and Oversight of the Activities of Private Military and Security Companies’, 7 October 2010. 10 Law Prohibiting Private Militias, 29 July 1934, Moniteur Belge, 6 August 1934. 11 Law on Safe-keeping Companies, Security Companies and Internal Safe-keeping Services, 10 April 1990, Moniteur Belge, 29 May 1990 (Law on Private Security Services); Law Modifying the 1990 Law on Private Security Services, the 1934 Law Prohibiting Private Militias and the 1991 Law Organising the Profession of Private Detective, 7 May 2004, Moniteur Belge, 3 June 2004, Art 24. 7

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addition, all fire weapons produced or imported in Belgium should be registered. Military weapons and, a fortiori, internationally forbidden weapons are always prohibited.12

I I . L AW ON P RIVATE SEC URITY SERV IC ES

A. Scope The 1990 law on private security services entered into force in 1991. It was amended on 18 July 1997,13 19 April 1999,14 9 June 1999,15 10 June 2001,16 25 April 200417 and 7 May 2004,18 simplified in 200519 and renamed the ‘law regulating private security’. The consolidated text regulates the provision of private security, safe-keeping services, training and consulting activities related to the security industry, and safety measures implemented inside public transportation companies. As such, it applies to all physical and moral persons offering to a third party on a permanent or temporary basis services of: surveillance and protection of movable or unmovable goods, and of the transportation of valuables; protection of persons; instalment, management or repair of alarm systems; surveillance and monitoring of persons in the frame of security maintenance activities, be it in private places or in specific (listed) public areas; reporting on the situation of goods located in the 12 See, in this regard, Law on the Fabrication, Trade and Carrying of Weapons and on the Ammunitions Trade, 3 January 1933, Moniteur Belge, 22 June 1933; Law Modifying the 1933 Law on the Fabrication, Trade and Carrying of Weapons and on the Ammunitions Trade, 30 January 1991, Moniteur Belge, 21 September 1991; Law Regulating Economic and Individual Activities with Weapons, 8 June 2006, Moniteur Belge, 9 June 2006; Law Modifying the 2006 Law Regulating Economic and Individual Activities with Weapons, 9 January 2007, Moniteur Belge, 1 February 2007; Law Modifying the 2006 Law Regulating Economic and Individual Activities with Weapons in order to Prolong the Delay for the Declaration of the Detention of Weapons, 23 November 2007, Moniteur Belge, 31 December 2007; Law Modifying the 2006 Law Regulating Economic and Individual Activities with Weapons, 25 July 2008, Moniteur Belge, 22 August 2008. 13 Law Modifying the 1990 Law on Private Security Services, the 1991 Law Organising the Profession of Private Detective and the 1933 Law on the Fabrication, Trade and Carrying of Weapons and on the Ammunitions Trade, 18 July 1997, Moniteur Belge, 28 August 1997. 14 Law Modifying the Code of Criminal Procedure, Various Police Laws and the 1990 Law on Private Security Services, 19 April 1999, Moniteur Belge, 13 May 1999. 15 Law Modifying the 1990 Law on Private Security Services, 9 June 1999, Moniteur Belge, 29 July 1999. 16 Law Modifying the 1990 Law on Private Security Services, 10 June 2001, Moniteur Belge, 19 July 2001. 17 Law Inserting an Article 17 bis in the 1990 Law on Private Security Services, 25 April 2004, Moniteur Belge, 3 June 2004. 18 Law Modifying the 1990 Law on Private Security Services, the 1934 Law Prohibiting Private Militias and the 1991 Law Organising the Profession of Private Detective. 19 Law Simplifying the 1990 Law on Private Security Services, 2 September 2005, Moniteur Belge, 27 September 2005.

Belgium 159 public domain, by order of the competent authority or holder of a public concession, including the denunciation of legal infractions including an administrative sanction; accompanying for road-security purposes of groups of motorists, cyclists, participants in sports competitions or schoolchildren; advice aimed at preventing the commission of infractions against persons or goods; and internal security provided by public transportation companies on their own network.20 Originally, it excluded from its scope individuals bound by a labour contract or close family ties, as well as companies counting no more than four associates exercising the said activities. Yet all these exceptions have been annulled by a 1998 decision of the Cour d’arbitrage,21 the Belgian constitutional court. Companies which are part of the same society or associated with it cannot be considered third parties and thus remain excluded from the application of the law on private security services.

B. Authorisation The provision of security and safe-keeping services needs to be authorised by the Interior Minister, after consultation with the Security of State Department and either the King’s Prosecutor of the place where the company is established or the Justice Minister. The Interior Minister may delegate this task to a designated civil servant, with the exception of first requests and denial of the authorisation or of its renewal. The licence may exclude the exercise of given activities and the use of certain means and methods or subordinate it to specific conditions. The Interior Minister recognises the training prescribed by the law and can specify the centres charged with the organisation of the exams. The Interior Minister can also issue a quality label to some authorised security consultancy companies.22 The licence mentions the authorised activities and is conditional upon the respect of the legal prescriptions regarding the minimum number of personnel employed and the organisational and technical means at the disposal of the company. It is granted for an initial period of five years, renewable every five or ten years, depending on the type of services provided. It can be suspended or annulled by demand of the authorised company, and in the event of a breach of its legal duties or risk to public order or state security.23 The special licences required to hold or bear

20

Law on Private Security Services, Arts 1 and 11(3). Cour d’arbitrage, No 126/98, 3 December 1998, Moniteur Belge, 25 December 1998, pp 41191–96. 22 Law on Private Security Services, Arts 2(1, 2 and 5) and 4. 23 ibid, Arts 4 bis and 17. 21

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arms are granted for the same period of time as this general licence, and may also be suspended or revoked in case of contravention of the law.24

C. Conditions of Exercise and Liability Security and safe-keeping companies need to respect ordinary Belgian company law rules or those of another Member State of the European Union. They have to be established on the territory of a Member State of the European Union.25 They cannot act unless their civil liability is covered by a recognised insurance company. The insurance contract gives to the prejudiced party a direct claim against the insurer. The latter cannot oppose against it any clause of exception or nullity, but can reserve itself the right to fall back on the insured party. More detailed rules regarding insurance cover, in particular the extent of the coverage, are specified by royal decree.26 Specific rules for the surveillance and protection of the international transportation of valuables can also be determined by royal decree.27 The persons effectively managing security and safe-keeping companies or sitting on their board of directors need to fulfil a certain number of conditions. They must neither have been convicted (at home or abroad) of any criminal offence, with the exception of infractions to the regulations on road traffic, nor gravely breached professional deontology rules, and they ought to meet with the security requirements necessary to the exercise of their function. They need to be at least 21 years old, EU citizens and have their main residence on the territory of a European Member State. They must satisfy the prescribed conditions of professional training and experience, which have been specified by royal decree. They cannot simultaneously exercise the profession of private detective, weapons and ammunitions manufacturer or trader, and any other activity which could constitute by the mere conjunction of both functions a threat for the public order or state security. In addition, they cannot concurrently manage or work for companies that provide security services and services to cafés or dance clubs. People employed during the five previous years by the police or a public intelligence service and persons who have exercised other public functions listed in a royal

24 Royal Decree on the Weapons Used by the Companies, Services, Organisms and Persons to Which Applies the 1990 Law on Private Security Services, 17 November 2006, Moniteur Belge, 24 November 2006. 25 Law on Private Security Services, Art 2(3). 26 ibid, Arts 3 and 4 ter. 27 ibid, Art 2(4).

Belgium 161 decree are similarly disqualified.28 Initially, the law also barred people who had exercised military functions, but another 1998 decision of the Cour d’arbitrage invalidated this clause.29 People working for security or safe-keeping companies in a nonmanagerial position have to abide by the same rules as their managers regarding the requirements of security, nationality, residence and professional training and the concurrent performance of multiple activities. They need to have reached the age of 18 and must undertake the medical and psychological check-ups prescribed by royal decree. However, they are submitted to less strict conditions regarding past criminal activities. Members of the board of directors are exempted from the conditions of nationality, residence and professional training, provided that they do not assume the effective direction of the company. The same exemption applies to the individuals belonging to the administrative or logistics personnel; that is to say, the persons who do not take any active part in the provision of security or safe-keeping services. Similarly, in contrast with people involved in safe-keeping services, the managers and employees of companies that deal with alarm systems, consultancy and training are not bound to comply with all the listed conditions.30 Investigations related to the requisite security conditions are initiated by the civil servant that the Interior Minister entrusts with this task in circumstances specified by royal decree. They are undertaken by the police, the State Security Department or any other authority in charge of the application of the law on private security services. The inquiry is subject to the prior consent of the person against whom it is directed and the data collected are destroyed as soon as a definitive administrative decision has been reached.31

D. Supervision of Activities, Means and Methods The Interior Minister regulates the working uniform worn by the members of private security and safe-keeping services and the vehicles they use (both of which ought never to be confused with those of the 28 Law on Private Security Services, Art 5. Royal Decree on the Conditions of Professional Training and Experience, the Conditions of Psychological Exam for the Exercise of a Managerial or Executive Function in a Safe-Keeping Company, and the Approval of Trainings, 21 December 2006, Moniteur Belge, 18 January 2007. 29 Cour d’arbitrage, No 124/98, 3 December 1998, Moniteur Belge, 25 December 1998, pp 41168–73. 30 Law on Private Security Services, Arts 5 and 6. Royal Decree on the Conditions of Professional Training and Experience, the Conditions of Psychological Exam for the Exercise of a Managerial or Executive Function in a Safe-Keeping Company, and the Approval of Trainings. 31 Law on Private Security Services, Arts 7 and 16.

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public police force), as well as the stocking, detention and carrying of weapons. Firearms are stocked in a magazine, under the direct responsibility of a specific employee, and a register is kept that mentions each incident in which a weapon has been used, by whom and for which mission. It is forbidden to bear arms for the management of alarm systems, the surveillance and monitoring of persons, reporting on the situation of goods located in the public domain, road-security activities, the surveillance and protection of goods located in places accessible to the general public, and consultancy purposes. Both the detention of weapons and the exercise of armed safe-keeping activities are subject to distinct special licences delivered by the Interior Minister after verification that the required conditions are met. In particular, the liabilities related to the bearing of arms must be expressly covered by insurance. Members of private security companies can never act beyond the rights which any citizen holds or outside the competences that the law expressly confers on them. The means, methods and procedures they are allowed to employ can be further specified by royal decree. In case of emergency or grave and imminent threat to the public order, the Interior Minister may either ban the exercise of given activities and the use of certain means and methods in public places (be it on a temporary or permanent basis) or impose complementary measures of security. In the absence of prior consent, nobody can be subjected to personal surveillance or protection. The methods and procedures utilised while monitoring individuals and personal goods, and the circumstances in which they are admissible, are strictly regulated.32 Above all, safe-keeping agents can never refuse someone access to public places on directly or indirectly discriminatory grounds as defined, and prohibited, in the 2003 law designed to fight discrimination.33 Private security and safe-keeping companies need to inform the police or the Interior Minister of the nature and specifics of their activities. They must also transmit without delay to the judicial authorities, whenever the latter request it, information relative to criminal infractions that they gathered in the exercise of their activities.34

32 Law on Private Security Services, Art 8; Royal Decree Regulating Certain Safe-Keeping Methods, 7 April 2003, Moniteur Belge, 7 May 2003; Royal Decree on the Weapons Used by the Companies, Services, Organisms and Persons to Which Applies the 1990 Law on Private Security Services, 17 November 2006, Moniteur Belge, 24 November 2006; Royal Decree Modifying the 2003 Royal Decree Regulating Certain Safe-Keeping Methods, 26 July 2007, Moniteur Belge, 13 August 2007. 33 Law Striving to Fight Discrimination and Modifying the 1993 Law Creating a Centre for the Equality of Chances and the Struggle against Racism, 25 February 2003, Moniteur Belge, 17 March 2003, Art 2(1–2). 34 Law on Private Security Services, Arts 9 and 10.

Belgium 163 E. Monitoring of Contraventions and Sanctions Private security companies send a yearly report of their activities to the Interior Minister, who in turn drafts a report on the application of the relevant law for the House of Representatives, Belgium’s lower parliamentary chamber. In addition, the Interior Minister informs the chamber on a yearly basis of the evolution of the technical means, which might limit the risks undertaken by safe-keeping agents in the exercise of their functions, and of the measures adopted in order to encourage their use.35 Private security companies need to take all necessary precautions so that the people working for them abide by the law and their managers must exercise effective control over other employees in order to guarantee its respect. Independently of the possibility to refer noticed irregularities to the judicial authorities, people can denounce them to the Interior Minister. Nobody can employ the services of a private safekeeping or security company which has not been legally authorised and duly licensed.36 Members of the police forces and civil servants and agents designated for that purpose by royal decree monitor the application of the law on private security companies. Other civil servants and agents can ask for the assistance of the police in the exercise of these functions. They are competent to draft statements of offences that are deemed accurate until proven otherwise. They have access at all times to both the premises of the company and the places where it exercises its activities, as well as to the documents needed for their supervisory tasks. They can order the immediate cessation of any action that constitutes an infraction. A statement of offence must then be sent during the next 15 days to the civil servant in charge.37 In the case of a breach of the law, the Interior Minister can suspend for a term of maximum six months or annul a company’s licence or confiscate the identification document of one of its employees. The same applies to companies that exercise activities incompatible with public order or state security. The adoption of such measures is conditional upon a prior consultation with the interested parties, in the respect of the rights of the defence, and the decision must be justified and legally notified to them. In the event of a condemnation for breach of the criminal law, private security companies are liable for the payment of the costs and fines owed by their managers and workers. Civil offences are sanctioned by either a simple warning or an administrative fine, the amount of which might be eventually diminished following a friendly settlement, within a maximum period of three years after the incriminating event, 35 36 37

ibid, Art 14. ibid, Art 15. ibid, Arts 16 and 19(2).

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at the end of which the statute of limitation applies and no legal action can be pursued anymore. Here again, these pronouncements ought to be adequately justified and to respect the rights of the defence. The companies remain liable for the payment of the administrative fines incurred by their members. The companies whose head office is situated outside Belgium provide a security deposit for that purpose. Administrative fines are contested before the Tribunal of First Instance of Brussels. This appeal suspends the execution of the decision. No further appeal can be introduced against the tribunal’s verdict.38

F. Policy Considerations A special fund destined to cover the administrative and supervisory costs incurred while dealing with safe-keeping and security companies, which is financed by the contributions of these private actors, is inscribed on the budget of the interior ministry.39 Finally, a consultative council on private security is created with the mission of advising the Interior Minister on the application of the law regulating private security and on related policy issues.40

III. C ON C LUSION

Belgium is a party to the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries. It has enacted the convention in its national legal order and adopted a law penalising most instances of recruitment in foreign armies to fight in foreign countries. No domestic legislation further regulates the activities of private military and security companies abroad. However, because of its strong attachment to monism and the prevalence of international over national norms, this regulatory vacuum does not affect or qualify in any manner the total ban on such activities under Belgian law. The use of private military companies on national territory has been forbidden since 1934, and the activities of private security companies or other private actors exercising traditional police or security-related functions are strictly regulated. As a result, the adoption of a more systematic or specific law at the municipal level does not seem to be warranted.

38 39 40

ibid, Arts 17–19. ibid, Art 20. ibid, Art 23 bis.

8 Czech Republic PETRA OCHMANNOVA

I . I NTRODUC TION

I

T IS OFTEN said that private military and security companies (PMSCs) represent the reality of the twenty-first century. Even though we are already accustomed to the participation of individual persons in conflicts (mercenaries) from past practice, PMSCs are rather an expansive form of organised ‘corporate business’ involved in hostilities. PMSCs are typical global players circulating on the international scene, conducting the most controversial parts of their activities (active use of force) in international operations. It is evident that questioning PMSCs national regulatory context cannot be done in isolation and that even the most pertinent national legislation would not suffice without support at either regional or international level. Thus, it is submitted that PMSCs’ regulatory context should be examined in the widest possible context, which would take into account PMSCs ‘chameleon behaviour’. This means that its activities range from typical security business (usually non-problematic) to military aspects of business (raising controversy), which constitute legal and thus regulatory problems. Bearing this in mind, it is submitted that PMSCs’ regulatory framework should focus not only on issues of criminal/tort claims of harmed individuals/states against contractor/company/state (perpetrator), but also on issues of accountability of all involved states (home, contracting and territorial). Even though we are now beyond the point where we can discuss the phenomenon of PMSCs as such, as so many international actors already rely on their services (UN, NGOs, states, etc), one should not forget that the nature of PMSC business is directly linked with the democratic foundation of every state. Bearing in mind the state monopoly on use of force and that performance of security/military tasks by private entities might have serious implications for democratic (civil) control over armed/security forces, the general debate concerning the legitimacy 165

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of outsourcing armed/security forces deserves some brief consideration. In this regard, an examination of PMSCs’ regulatory context should not be limited only to legal concerns (existing national and international law focusing on human rights law and international humanitarian law), but should also take into consideration political (national and foreign policies and interests) and even sociological issues, too. PMSCs are not sufficiently regulated on international level yet, as even the Montreux Document,1 the most promising initiative so far, has not gained worldwide recognition. As a result, the lack of probable progress on the international level in the near future naturally leads us to focus attention on the national and/or a regional level. The aim of this report is to deliver a general overview of the current regulatory framework of PMSCs in the Czech Republic.2 Consequently, the report will provide a useful starting tool for an effective and addressed regulation on both levels.

I I . T HE P RIVATE MILITARY AN D SEC URITY IN DUSTRY

A. PMSCs Registered at National Level Like a number of other allied countries, the Czech Republic runs its Provincial Reconstruction Team (PRT) in Afghanistan in the province of Loghar. A typical structure of a PRT comprises civilian experts in various fields, as the purpose of PRTs is to help locals with reconstruction of their country. As these civilian experts perform their duties in the area of armed conflict, military personnel are assigned for their protection.3 With the same aim—to participate on local reconstruction of the state—a number of private companies are active in the same territory, usually trying to pursue business opportunities. However, according to information provided by the Ministry of Foreign Affairs (MFA), they are currently not aware of any such private Czech companies.4 Deployment of the first Czech PRT in 2008 naturally represented an incentive for Czech companies to strive to have a presence in the area of reconstruction. In this regard, one of the biggest Czech security companies, ABL Inc,5 has shown an interest in becoming the first Czech 1 UN Doc A/63/467S/2008/636, Annex, ‘Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict’, 17 September 2008. 2 All information contained in this report is relevant to February 2011. 3 Currently there are 261 soldiers and 11 civilian experts (data as of 3 January 2011). 4 Telephone interview with Czech Embassy in Kabul on 18 February 2011. 5 The ABL Inc Company was founded in 1992, in the Czech Republic, based on the Czech legislation.

Czech Republic 167 PMSC in Afghanistan, and has thus created a specific division to cover security of private subjects operating in Afghanistan.6 According to the available information, ABL Inc has undertaken efforts to establish its business in Afghanistan under a daughter company (ABL-AFG), including application for a licence for conducting PMSC activities under Afghan national law since 2009. However, due to a lack of information, it has not yet been officially confirmed whether the Afghan government has actually granted ABL-AFG a licence to enable it to legally perform PMSC services in Afghanistan. ABL-AFG’s active presence in Afghanistan has not been officially confirmed either.7 Unfortunately, the secrecy within the PMSC industry, hand in hand with the lack of transparency, makes it impossible to obtain more reliable information. Nevertheless, it should be noted that in August 2010, the Afghani president Karzáí issued Decree No 65 ‘About dissolution of Private Security Companies’, aiming at the general dissolution of PMSCs operating in Afghanistan and the reintegration of Afghan individuals employed by them into the regular police service. Regarding non-registered PMSCs,8 the Decree provided that these ‘should be abort[sic]as illegal security companies and their supplies and military equipments to be confiscated in accordance to the law’.9 As a consequence, many PMSCs terminated their presence in Afghanistan. Thus, it may be concluded that the active presence of ABL-AFG in Afghanistan is no longer probable at all. As the Czech Republic lacks any regulation concerning registration of PMSCs, it may be concluded that there are no PMSCs registered at the national level. However, the undisputable linkage of ABL-AFG, which, as said, was created as a daughter company of ABL Inc, and was financially and managerially connected to it, proved that at least one Czech PMSC was interested in operating abroad. Such a conclusion is supported by the fact that ABL-AFG was claiming to be able to provide ‘military and/or security services’,10 matching the definition of PMSCs, as, for example, provided by the Montreux Document.11

6 See ‘Czech Companies Going to Afghanistan’, Czech Defence Industry and Security Review, March 2008, also available at www.abl.cz/czk/media/napsali-o-nas/archiv-2008. 7 Telephone interview with Czech Embassy in Kabul on 18 February 2011. 8 To legally perform PMSC business in Afghanistan a PMSC had to be registered for that purpose. 9 Art 5 of the Afghan Decree No 65. 10 ABL claimed to be able to provide security services for VIP clients consisting in warding off aackers with AK 47 machine guns: see ‘Czech Companies Going to Afghanistan’, above n 6. 11 The Montreux Document, above n 1.

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B. Types of Services Offered On 30 January 2008, ABL Inc organised a presentation of their capability to provide services in support of the Czech PRT in Loghar, Afghanistan.12 Even though the presentation was directed at setting up cooperation with the Ministry of Defence (MOD), the services offered could also be of value for any private companies operating in Afghanistan. Based on the presentation, ABL Inc appears able to offer the services and skills necessary for safeguarding the protection of VIP persons in house, in office, during transport, etc, and in other extraordinary situations, such as protection against vehicle attack or assault by armed aggressors with assault rifles aimed on a transport colony. Moreover, they claim to be able to provide entry consultation concerning risk assessment, to develop a plan towards adoption of relevant security measures, including related administrative support (assistance with visa application), and to provide necessary training (techniques for survival) and relevant information about sociological and cultural aspects. In addition, they claim to be able to provide military equipment, munitions, direct support in provision of transportation (armoured cars), insurance and personnel assistance on the site.13

C. Personnel (National, Foreign, Level of Skills) In the same way that other PMSCs usually hire ex-members of the police and armed forces, ABL-AFG too claims to use this source.14 Preferred are special or elite unit personnel, such as Czech Police Special Unit personnel and/or Czech former French Foreign Legion members. At the place of contract, it is assumed that each Czech expert would be accompanied by a number of far less skilled local Afghan personnel, according to the needs of each specific contract.

D. Actors Using National PMSCs The author is not aware of any Czech actor using services of PMSCs. During Czech military commitments in Afghanistan, the MOD and MFA always relied on state—public—(Czech) forces. Currently, neither civilian members of the Czech PRT nor the Czech diplomatic mission in Afghanistan are protected by PMSCs; protection of both is assured by

12 Article

in local newspaper Nymburský deník, 31 January 2008. ‘Czech Companies Going to Afghanistan’, above n 7. 14 Interview with Erik Šrámek (ABL Inc) on 18 February 2011. 13 See

Czech Republic 169 the Czech Armed Forces. Based on the available information, it appears that this policy will remain unchanged.

E. Professional Associations In 2007, under the auspices of the Czech–Middle Asian Chamber of Commerce,15 private companies interested in post-conflict reconstruction of Afghanistan associated in a coalition of Czech industry called PRO LOGHAR. Their aim was to create a coalition of like-minded companies and support their possible business activities in Loghar province in Afghanistan. According to their statements, the security of such companies was supposed to be provided by ABL Inc. This was the basis for the establishment of a specific division in ABL Inc aimed at the support of Czech businessmen in Afghanistan.16

F. Self-regulation and Industry Approach to Regulation Any activities towards self-regulation and/or industry approaches to their regulation are out of the question, given the very limited extent of PMSC business in the Czech Republic. Nevertheless, as the Czech Republic represents one of the last EU countries to adopt specific legal regulations concerning the security business, representatives of companies providing typical ‘security’ business (having no ‘military’ aspects) and acting in the Czech security market would welcome more detailed regulation.17 As the business of private security services in the Czech Republic has became overwhelmed by unreliable security companies, professional and informal associations have been established as a form of self-regulation of the private security industry. These ‘private associations’ impose specific criteria for companies to enter the market and partially compensate for the lack of proper legal regulation of the security business. Generally, associations formulate recommendations and codes of conduct aimed at an elevation of the quality of the services by virtue of standardising

15 It is a voluntary coalition of Czech and foreign persons who are interested in general cooperation between the Czech Republic and foreign countries. The Chamber was officially established according to the requirements contained in the Act on Commercial Cooperation with Foreign Countries No 42/1980 Coll, as amended. More information is available at www.csok.cz. 16 Czech-Middle Asian Chamber of Commerce press release on 19 February 2008, ‘České firmy jsou připraveny vstoupit do konkrétních projektů PRT’, available at www.csok.cz. 17 See ‘Stát při zadávání zakázek na bezpečnostní služby často porušuje zákon’, Czech magazine EURO, 14 January 2008.

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regulatory rules. In addition, they are trying to initiate the adoption of proper legal regulation of the security business.18

I I I . DOMESTIC SEC URITY SERV IC ES

A. Licence Required for Conducting Private Security Services? The provision of security services is not sufficiently regulated by any specific legal act in the Czech Republic. Legal conditions for conducting any business activity in the Czech Republic are contained in the Trade Enterprise Act.19 This Act, together with Governmental Order No 278/2008 concerning factual subject matter of individual trade activities,20 in fact represents the only regulatory framework for conducting security business. Thus, a company wishing to perform security services first has to comply with the general conditions of reaching a required age limit, legal capacity and moral integrity.21 Secondly, as the business activity ‘guarding property and security of persons’ and ‘providing technical services to protection of persons and property’ is placed under Annex 3 of the Act, the entrepreneur is required to approach the local competent trade licence office to apply for a specific licence (koncese),22 which would then legally enable him to provide security services in the Czech Republic. The licence is granted once professional expertise in the field of security business is demonstrated.23

B. Legal Definition of Security Services? One may take as a legal definition of security services a provision contained in Annex 3 of the Governmental Order No 278/2008, as it concerns the factual subject matter of conducting security services. According to this order, trade activity ‘guarding property and security of persons’ consists of offering services connected with guarding immovable and movable property, securing the transport of money, valuables and other valuables, including its manipulation, ensuring the security of persons, ensuring public order in connection with public gatherings and sport activities, making security threat analyses and operating central monitoring stations. 18 See

www.securityclub.cz or www.asbs.cz. Enterprise Act No 455/1991 Coll, as amended (Zákon o živnostenském podnikání). 20 Governmental order No 278/2008 Coll, Annex 3. 21 Section 6 of the Trade Enterprise Act, above n 19. 22 ibid, s 27. 23 ibid, s 7. 19 Trade

Czech Republic 171 I V. R E G UL ATION OF ARMED FORC E

A. Possession and Use of Arms Basic regulations concerning the use of arms are contained in the Act on Fire Arms.24 The Act regulates the possession and use of arms, and determines the conditions for their acquisition, import, export and transit, including state control in this area.25 Naturally, the Act only refers to arms which are registered in the Czech Republic and retained by private, ie non-military or non-police, actors. The Act is not aimed at, and thus does not apply to, military, police and armed state corps,26 who possess and use arms on the basis of special laws.27 According to the effects, design and possibilities for use of every type of arm, the Act classifies arms in different categories. The classification ranges from prohibited arms (category A28), to arms subject to permission (category B29), arms subject to notification (category C30), and other arms where no specific permission or approval is necessary and the only conditions to comply are reaching a lawful age and having a legal capacity (category D31). Generally, arms may be acquired, possessed and carried either by a holder of a firearms certificate or based on a firearms licence.32 For ‘safeguarding property and protection of person’, which would probably apply to PMSCs, the Act requires the holding of a class G firearms licence.33 Based on this class of firearms licence, the holder is then entitled to apply to the Czech Police for an exemption of general prohibition to acquire arms of category A. Thus, if a PMSC proves that their requirement is based on performing ‘transport, guarding of highly dangerous or valuable consignment or guarding objects of utmost importance or objects significant for defence of the state’,34 it may apply for such exemption. These PMSC applications concerning military arms (prohibited category A) are submitted to the MOD for consideration.35 Such exemption, if granted, then enables PMSCs to acquire and possess 24 

Act on Fire Arms No 119/2002 Coll, as amended (Zákon o střelných zbraních). ibid, s 1, para 1. 26 ibid, s 1, para 2. 27 Act on Armed Forces of the Czech Republic No 219/1999 Coll, as amended (Zákon o ozbrojených silách České republiky); Act on Service of members of security staff No 361/2003 Coll, as amended (Zákon o služebním poměru příslušníků bezpečnostních sborů). 28 Section 3, para 1(a) and s 4 of the Act on Fire Arms, above n 24. 29 ibid, s 3, para 1(b) and s 5. 30 ibid, s 3, para 1(c) and s 6. 31 ibid, s 3, para 1(d) and s 7. 32 ibid, s 8. 33 ibid, s 31. 34 ibid, s 9, para 2(b). 35 ibid, s 9. 25 

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the most extensive range of arms, such as automatic guns and special ammunition. Naturally, such PMSCs are also entitled to acquire and possess arms pertaining to categories B,36 C37 and D.38 Consequently, a PMSC may entrust the holding of such arms to those employees who possess a group D firearms certificate (for the purpose of employment).39 If a PMSC resident in another EU state, EEA state or Swiss Confederation operates on the territory of the Czech Republic with arms belonging to prohibited categories of arms (A category) or arms subject to permission (B category), this PMSC would be obliged to declare to te Czech authorities that the state of its registration has issued an exemption or permission concerning this possession.40

B. Arms Export Foreign trade in military material comes under the competence of the Ministry of Industry and Trade (MIT). The MIT is authorised to conduct all related administrative proceedings, such as granting permissions and licences, controlling the use of the arms licence, imposing administrative fines for a violation of the law, etc.41 The Act on Foreign Trade with Military Material provides the regulatory framework for arms export control.42 The Act is complemented by Administrative Decree No 332/2009 Coll, which provides a detailed list of military material subject to this regulation. However, due to the implementation of EU Directive No 2009/43/EC, a substantive amendment to this Act is currently under legislative revision.43 Concerning the regulation itself, foreign trade with military material may be performed only by a legal person established in the Czech Republic and only on the basis of a permission granted by the MIT, after careful consideration of national business interests and further to receiving statements of approval from the MFA (subject to the consideration of foreign political interests), the Ministry of Internal Affairs (considering national security interests) and the MOD (considering security issues concerning significant military material).44 The permission 36 ibid,

s 12, para 5(d). s 14. 38 ibid, s 15. 39 ibid, s 16, para 2(d). 40 ibid, s 10, para 3 and s 12, para 4. 41 Section 6, para 2 and s 23 of the Act on Foreign Trade with Military Material No 38/1994 Coll, as amended (Zákon o zahraničním obchodu s vojenským materiálem). 42 ibid. 43 Its aim is to promote greater transparency and diminish administrative burden both in respecting security and other interests of the Czech Republic and EU. 44 Section 6, s 16 of the Act on Foreign Trade with Military Material, above n 41. 37 ibid,

Czech Republic 173 itself then determines the particular items and the list of countries with which the company is allowed to trade. Once a company has permission to conduct a trade, it is required to apply for a specific licence to actually effectuate the transaction. This means that the company has to receive a specific licence for every business transaction.45 Generally, the licence is required for every contract on export from, and import to, the Czech Republic or other EU Member State, including trade with foreign persons or exterritorial purchases and the consequent selling to another EU Member State.46 The licence also determines the scope and concrete conditions of such a transaction. Similarly to the procedure concerning granting permission, the final decision of whether a concrete licence shall be issued or not rests with the MIT (Trade Office). Its decision is once again based on statements from all aforementioned ministries,47 and is based on the EU Code of Conduct on Arms Exports, EU Council Common Position No 2008/944/CFSP. Although, under current regulation, a licence is required for every case of trading, even when trading with EU states, based on the proposal to amend the Act, the whole process will be facilitated in the sense that a licence granted in one EU Member State will automatically be applicable in all EU states and it will not be necessary to apply for it again in each country. The general permission to conduct trade is granted for a limited period of time. In terms of the regulatory context, all proceedings are conducted in the area of administrative law. If a company trades without permission or a licence, criminal proceedings could even be triggered, as such activity constitutes a criminal offence under the Czech Criminal Code.48

C. Government Policy on Outsourcing of Armed Force The Czech Republic has no governmental policy on the outsourcing of armed force or on the use of PMSCs in support of a Czech presence abroad. As a decision to deploy Czech Armed Forces is reserved either to parliament or to government, depending on the type and duration of the actual operation,49 it is submitted that any such policy concerning outsourcing of armed forces and its engagement should be based on similar principles. 45 ibid,

s 14. s 2. s 16. 48 Section 265 of the Criminal Code No 40/2009 Coll, as amended (Trestní zákon). 49 Art 43 of the Constitutional Act No 1/1993 Coll, as amended. 46 ibid, 47 ibid,

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D. PMSC Contracts and Armed Force Since 2007, ABL Inc has had close contact with the departments of the Czech MFA responsible for the civil part of the Czech PRT project and with the departments of the Czech MOD responsible for the military part of the Czech PRT, with the aim of setting up possible cooperation.50 However, the MOD has shown no significant interest in using such services in support of the Czech PRT in Loghar.51 So far, the Czech Republic has not hired any PMSCs for the benefit of the Czech Armed Forces operating abroad, eg in Afghanistan.

V. C OR P ORATE/C OMMERC IAL LAW

From the discussion above, it can be deduced that the Czech legislation is in fact silent concerning the establishment of a PMSC as a company. Thus, the question then arises: Is it legal to set up a PMSC under Czech law? The question is answerable only through the interpretation of relevant provisions. The starting point is a constitutional principle stating that ‘every citizen is free to do anything, unless it is prohibited by law’.52 Secondly, it should be noted that the Act on Trade Enterprise states that performing activities that are reserved to the state by law does not constitute a trade enterprise.53 Thus, it is concluded that establishing a PMSC, which would be aimed at conducting military activities, would not be in accordance with the Czech legislation, as the performance of this activity is by law entrusted only to the armed forces.54 In practice, it is usually very rare for PMSCs to be established to perform military (combat) activities only. The majority of PMSCs are usually set up as regular security companies, even though they in fact provide a variety of services, like consultancy and training. The military aspects of PMSC business represent an occasional and often unanticipated surplus. Thus, it is submitted, as nothing within the Czech legislation prohibits the setting up of a company providing ‘security services’, and as a majority of PMSCs are set up as companies providing security services, based on the conditions set out in the Trade Enterprise

50 See www.csok.cz: ‘Setkání s představiteli MO ČR a MZV ČR s afghánským konzulem’, ‘PRO LOGHAR—ukázka připravenosti’. 51 In an interview broadcasted on 31 January 2008 at the Czech national television (ČT1, ČT 24), major-general Prokš (Czech Army) stated: ‘In case that such companies would get into trouble, we will not leave our colleagues on lurch, but our main task there is different’. The extract is available at www.abl.cz/czk/media/napsali-o-nas/archiv-2008. 52 Art 2(4) of the Constitutional Act, above n 49. 53 Section 3, para 1(a) of the Trade Enterprise Act, above n 19. 54 Sections 3, 9 and 14 of the Act on Armed Forces of the Czech Republic, above n 27.

Czech Republic 175 Act, a PMSC company aiming to conduct ‘security services’ could be legally set up under Czech legislation. Concerning the possible corporate legal models under which a PMSC could be established, the Commercial Code provides the conditions.55 PMSCs may choose from all possible legal forms for establishing a company, ie a joint stock company, a limited liability company, a public business company or a limited partnership company,56 and, on the basis of EU regulation, a ‘European company’ as well. However, due to the specificity of PMSC business and their typical exigency for increased investment capital and solid structure, the forms joint stock company and limited liability company represent the most viable options. Both forms of company may be established either by natural or legal persons, or by a combination of both.57 As under Czech law foreign persons may conduct their business under the same conditions and to the same extent as Czech citizens,58 nothing prevents foreign persons from setting up a PMSC in the Czech Republic. Once a company is formally established, it may start its business only after fulfilling two conditions: the first is to register the company on the ‘Commercial Register’. This condition is compulsory for every entrepreneur, whether Czech or foreigner. The second condition is that the entrepreneur is obliged to acquire a trade licence according to the Trade Enterprise Act, as this is a necessary general authorisation enabling the conduct of any business activity.

V I . LABOUR LAW

The Czech Labour Code59 does not contain any provisions specifically applicable to PMSC activities. Thus a PMSC established in the Czech Republic and governed by Czech law would have to comply with the general provisions contained therein. However, considering the fact that PMSCs mainly operate abroad, the application of the Labour Code would in practice be very improbable, due to its very limited extraterritorial applicability. Thus, employment contracts and other labour conditions would probably be based on the law applicable on the territory of the performed business activity. On the other hand, contractual freedom concerning choice of law may result in Czech contractors, even when present in foreign territory, subjecting their relationships to the Czech national regulation. For example, ABL-AFG 55 Commercial

Code No 513/1991 Coll, as amended (Obchodní zákoník). Czech ‘komanditní společnost’. 105 and 162 of the Commercial Code, above n 55. 58 ibid, s 21. 59 Labour Code No 262/2006 Coll, as amended (Zákoník práce). 56 In

57 Sections

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claimed that Czech contractors would be subject to the Czech Labour Code and that they would provide them with meals, housing, transportation, equipment and material, although locally hired personnel would be subject to local regulation. Czech labour law does not contain any specific regulation concerning the recruitment process of PMSCs nor required training programmes. In practice, it seems that the process is produced very much on an ad hoc and case-by-case basis. Concerning recruitment techniques, for example, ABL-AFG claimed to headhunt required personnel from the group of actual or ex-members of the Czech special police/armed forces and/or from Czech ex-personnel of the French Foreign Legion. As far as training is concerned, in practice it would very much depend on the kinds of service the PMSC would desire to perform and the level of skills of every hired individual. For example, ABL-AFG claimed that there is no actual necessity to provide specific training for persons with operational backgrounds. However, in the case of locally hired personnel recruited for manning checkpoints and guarding of premises, they were able to provide aimed and structured training (physical conditions, precise shooting, secure handling of a gun, etc).

V I I . G OV ERN MEN T P ROC UREMEN T

The Czech Republic has no policy concerning procurement of PMSCs services during operations abroad. The Act on Public Procurement is the government procurement policy applicable in the territory of the Czech Republic.60 This Act generally regulates all processes of contracts by public authorities and its aim is to impose restrictions on acquisitions towards fair competition. In relation to the obligation of users of the property of the Czech Republic to ensure protection and security of state owned premises,61 state authorities are allowed to use private companies to ensure such protection. However, the possibility to outsource these services to the private sphere is limited. For example, Order of Minister of Defence No 6/2009 limits this possibility to certain objects only. Objects containing ammunition, MOD main residence premises, etc are excluded from such outsourcing, members of military police exclusively ensuring their protection. As a number of governmental bodies regularly use the services of private security companies for performing activities like manning 60 Act on Public Procurement No 137/2006 Coll, as amended (Zákon o zadávání veřejných zakázek). 61 Section 14, para 3 of the Act on Property of the Czech Republic No 219/2000 Coll, as amended (Zákon o majetku České republiky).

Czech Republic 177 entrances and guarding their premises, they naturally have to comply with this regulation. The same regulation applies to governmental procurement by the MFA in a number of countries where the security situation is unstable. Because aggravated security threats may occur in such countries, the Czech Republic relies on ‘security companies’ for the protection of its mission.62 These companies are usually local, and thus the most important features of any prospective company for the MFA are its reliability and good references from the other embassies in situ. Concrete contracts usually limit the area of responsibility of such companies to the protection of outside areas of buildings and manning entrances. Sometimes they serve as organisational instruction officers, and they are thus not usually armed as their role is more of a ‘public order’ nature than as a real ‘security guard’. In highly unstable and dangerous areas, like Pakistan and Nigeria, or even in areas like Iraq, where an armed conflict has occurred, missions are secured by the presence of Czech Police Special Forces Units. In Afghanistan, a unit of Czech Armed Forces conducts the mission’s protection.63

V I I I . C R I M IN AL RESP ON SIBILITY

As of 1 January 2010, a newly recodified Criminal Code64 became effective in the Czech Republic. It reflects all the pertinent obligations arising from international law, such as the repression of grave breaches of the Geneva Conventions and its Additional Protocols,65 including provisions contained in the Rome Statute establishing the International Criminal Court.66 Similarly to other legal regulations, the Criminal Code does not contain any specific provisions criminalising activities of PMSCs as such—nor generally constituting criminal responsibility of these companies, or specifically criminalising its employees in this regard.

62 In approximately 70 states, the MFA relies not only on local security (police) forces, but also on local security companies to support the security of the Czech embassies. Information provided by Director of Section of Security Policy, MFA, 16 February 2011. 63 Telephone conversation with Director of Section of Security Policy, MFA, 16 February 2011. 64 Criminal Code No 40/2009 Coll, above n 48. 65 The Czech Republic is a contracting party of the four Geneva Conventions (1949) and its three Additional Protocols (1977, 2005). 66 The Czech Republic signed the Rome Statute of the International Criminal Court on 13 April 1999 and ratified it on 21 July 2009. The Statute entered into effect on 1 October 2009.

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A. Legislation on Mercenarism/on Enlistment of Nationals in Foreign Armed Forces The Czech Republic is not a party to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries (1989). Czech criminal law does not prohibit mercenarism as such; however, in section 321 of the Criminal Code it punishes ‘Service in Foreign Armed Forces’.67 According to this section, Czech citizens cannot perform service in an army or armed forces of other states if such service contradicts other legal acts. This is governed mainly by provisions contained in the Act on Military Ability.68 This Act states that if the President of the state grants a specific permission to enter the armed forces of other states, Czech citizens may do so.69 The permission is not necessary in the case where an applicant wishes to serve in a Member State of an international organisation of which the Czech Republic is a member70 (eg NATO). Also, in the case of serving in French Foreign Legion, the assumption is that an individual would not need such permission as it constitutes an integral part of the armed forces of the French Republic. In the case of performing military services in foreign armed forces which are not allied, such a person commits the criminal offence of War Betrayal.71 As the aim of the crime ‘Service in Foreign Armed Forces’ is to ensure that Czech citizens perform military service in the armed forces of their own state, the offender must be a citizen solely of the Czech Republic.72 If a person holds several citizenships, the president’s permission is not necessary either.

B. Individual Criminal Responsibility of PMSC Personnel The Criminal Code is based on individual criminal responsibility as it states that an individual ‘physical person’ will be held criminally responsible for their wrongful acts, regardless of whether they are committed intentionally or negligently.73 Concerning the extensive variety of activities that contractors/ employees of PMSCs as individuals may perform, their individual 67 The Criminal Code, above n 48, states ‘The citizen of the Czech Republic who in contradiction with other legal act performs service in army or armed forces of the other state will be punished by imprisonment up to five years’. 68 Act on Military Ability No 585/2004 Coll, as amended (Zákon o branné povinnosti). 69 ibid, s 34. 70 ibid, s 34, para 4. 71 Section 320 of the Criminal Code, above n 48. 72 J Kuchta et al, Kurs trestního práva, Trestní právo hmotné, Zvláštní část (Prague, CH Beck, 2009) 434. 73 Sections 13 and 22 of the Criminal Code, above n 48.

Czech Republic 179 criminal responsibility very much depends upon their status and the nature of the operation they are involved in. Presumptions for triggering Czech jurisdiction in criminal matters are: 1. the principle of personality—the perpetrator is a Czech citizen, irrespective of where the crime was committed; 2. the principle of universal jurisdiction for certain specific enlisted crimes, in which case the perpetrator does not even have to be a Czech national. Such a crime may be committed even outside the Czech territory. Generally, in the case that PMSC personnel violate human rights/international humanitarian law/Czech criminal law and Czech jurisdiction is triggered, they will face consequences arising from the Criminal Code, eg Murder (section 140), Gross Injury on Health (section 145), Injury on Health (section 146), Gross Injury on Health Caused by Negligence (section 147), Torture and Other Cruel Treatment (section 149).

C. Command Responsibility and PMSCs In concurrence with the Czech ratification of the Rome Statute, which in its Article 28 recognises ‘Responsibility of Commanders and Other Superiors’, a criminal offence suppressing acts or omissions of commanders (superiors) for his subordinates has been introduced into the Criminal Code for the first time. The regulation of ‘Responsibility of Superiors’ contained in section 418 of the Criminal Code covers not only responsibility of military commanders in stricto sensu, but is designed to cover civilian superiors as well. Such broad regulation covers acts of PMSCs commanders as they, as private persons, may be held responsible for acts or omissions of their subordinates. Based on the principle of active personality, such persons may be held criminally responsible under Czech law if they commit such a crime extraterritorially,74 which would most likely be the case with PMSCs. The aim of this is to criminalise only the most serious violations of human rights and international humanitarian law. Thus, the provision imposes responsibility only in relation to explicitly enumerated crimes like Genocide (section 400), Attack on Humanity (section 401), Preparation of Aggressive War (section 406), Promotion of Aggressive War (section 407), Use of Forbidden Means of Combat and Leading Illicit Warfare (section 411), War Cruelty (section 412), Persecution of Population (section 413), Plunder in a Combat Area (section 414), Misuse of Internationally Recognized and State Emblems (section 415), Misuse 74 ibid,

s 6.

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of Flag and Truce (section 416) and Assault on Parlementaire (section 417). It should be noted that, as most of these crimes are considered to be the most serious international crimes, the perpetrators of which should not be left unpunished, prosecution might also be triggered under the principle of universal jurisdiction. Thus, perpetrators of such crimes (except the crime of Promotion of Aggressive War—section 407) may be held criminally responsible under Czech law, even though they have committed such a crime extraterritorially and even if they are not Czech citizens or persons without state citizenship who do not have a permanent residence granted in the Czech Republic.75 According to international standards, the criminal responsibility of superiors is based on a premise that military or other superiors are criminally responsible for the acts of their subordinates, even in the case of his negligence, and it is based on a standard of ‘effective control’. In this regard, the provision explicitly provides that the existence of a factual relationship has to be proven between a superior and his subordinate,76 and thus his/her criminal responsibility cannot be established only on the basis of formal rank or superior position. The regulation of responsibility of superiors in the case of members of armed forces is complemented by an obligation on soldiers to refuse to comply with an order of a commander (superior) where the fulfilment of such an order would constitute a crime.77

D. Immunity from Local Criminal Law Naturally, all of the above-mentioned crimes are excluded from the criminal period of limitations for prosecution and punishment,78 since their effective punishment is subject to the regulations of the Convention of Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (New York, 1968), to which the Czech Republic has been a party since 1970. The lack of a specific regulation over PMSCs in conjunction with the lack of governmental use of their supportive ‘armed role’ in foreign operations results in the Czech Republic giving no grant of immunity from local law to PMSC contractors. Therefore, if PMSC contractors do not profit from a specifically granted immunity on ad hoc case basis or an exemption from local criminal law, any acts resulting in violations of local or international law might lead to detention and prosecution by the 75 ibid,

s 7 para 1. s 418 states ‘over whom he exercised his authority and control’. 48, para 2 of the Act on Professional Soldiers No 221/1999 Coll, as amended (Zákon o vojácích z povolání). 78 Section 35 of the Criminal Code, above n 48. 76 ibid,

77 Section

Czech Republic 181 local authorities. Agreements concerning legal assistance are applicable in such situations. For example, in Afghanistan, if a detained contractor is a Czech citizen, the applicability of the Agreement concerning Legal Aid in relations in civil and criminal matters between the Czech and Afghan republics of 198179 may be triggered. Based on available information, no example of this situation has yet been reported.

E. Is Criminal Responsibility of Corporations Recognised? The criminal responsibility of corporations is not yet recognised under the Czech Criminal Code. However, since nothing precludes the responsibility of corporations arising out of administrative law,80 a PMSC could be held administratively responsible, for example for violating prohibitions in the field of arms exports.81 Over the past few years there has been an intense debate over the introduction of the criminal responsibility of corporations in the Czech Republic. This has been caused not only by an enormous rise of criminal offences committed by corporations, mainly in domain of financial, commercial and environmental law, but also by the requirement of harmonisation with EU legislation. Unfortunately, the result is still unsatisfactory, as today the Czech Republic represents the last EU Member State where the criminal responsibility of corporations is not yet legally recognised at all. The regulatory process started back in 2004 and, even though at that time the process itself failed, a new draft of an Act on Criminal Responsibility of Corporations was presented in February 2011 and currently is in the legislative process.82

I X. C IV IL LIABILITY

The Czech Regulation does not contain any specific provision concerning civil liability of PMSCs. General civil liability is regulated in the Civil Code,83 which means that it has a general subsidiary applicability towards other specific 79 The applicability of this agreement has been bilaterally confirmed. See MFA notification No 96/2010 Coll of International Treaties. 80 Administrative Act No 500/2004 Coll, as amended (Správní řád); Procedural Act on Administrative Maers No 150/2002 Coll, as amended (Soudní řád správní). 81 s 25 of the Act on Foreign Trade with Military Material, above n 41. 82 The dra Act on Criminal Responsibility of Corporations has been approved by the Legislative Council of State, which has recommended the government to approve it. Following successful approval, the dra has to undergo the enacting parliamentary procedure. 83 Civil Code No 40/1964 Coll, as amended (Občanský zákoník).

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regulations, as comprised, for example, in the Commercial and Labour Codes. Thus, the specific provisions of commercial, civil and/or labour law will be applied if the comprise specific liability provisions; if not, the general regulation contained in the Civil Code will be applicable.

X . C ASE LAW

As the Czech criminal law does not prohibit mercenarism as such, there is no case law on typical mercenarism. Notwithstanding this, the crime ‘Service in Foreign Armed Forces’ contained in the Criminal Code seems to be the most relevant to acts of mercenarism. The current wording of this crime has only been in effect since 1 January 2010, thus there is no direct case law yet. Nevertheless, as the previously applicable Criminal Code contained a very similar provision,84 it is submitted that the previous case law may be considered relevant even for the current regulation. The significant case law concerning service in a foreign army is the decision of the Czech Supreme Court No R 43/2000. The judgment states that the formal signs (criterion) of the criminal offence ‘Service in a Foreign Army’85 are fulfilled by a Czech citizen conducting military service in the army or armed corps of any other state, but only if such service was conducted without permission. The reason is that under the previously applicable Criminal Code, any activity of a person to be considered as a criminal offence had to fulfil two criteria—material and formal. While the formal criterion implied that the activity had to meet specific requirements of the concerned offence, the material criterion required that such an activity reach a certain threshold of peril to society.86 In the case mentioned, the defendant’s defence was based on the fact that either his activity had not met the material criterion (threshold) for it to be qualified as criminal at all or, if the material criterion was met, its peril to society was substantially diminished. Both arguments were based on the fact that he was performing his service in a NATO (allied) country and thus such activity was not conducted against the interests of the Czech Republic. The Court did not, however, accept the defendant’s argumentation and held that the mere fact that a person conducted military service in the army of an ally need not necessarily lead to the conclusion about insufficiency of the material element (peril to society) of the culpability of the criminal offence.

84 s

115 of the Criminal Code No 140/1961 Coll, as amended. This is the predecessor of the current wording of the offence: ‘Service in the Foreign Armed Forces’. cf s 321 of the Criminal Code, above n 48. 86 s 3, paras 1 and 2 of the former Criminal Code No 140/1961 Coll, as amended. 85 ibid.

Czech Republic 183 Concerning PMSCs specifically, there is no applicable case law or pending case involving PMSCs activities or personnel in the Czech Republic.

XI . G OV ERN MEN T P OLIC Y ON T H E STATUS OF P MSC S

The Czech Republic has no government policy on the status of PSMCs. For example, concerning its position towards different forms or initiatives leading to internationally binding regulation, the Czech Republic has not yet officially pronounced its support for the Montreux Document regulating PMSCs.87 However, in this regard, based on a statement from the MFA,88 a discussion should be opened first on the national level concerning the phenomenon of PMSCs before any official support of the Czech Republic to the Montreux Document will be taken. Based on the conclusion of such a debate, a possible implementation of ‘Good Practices’ of the Montreux Document into the national legal order could follow. With regard to the status of PMSC members, based on the law applicable during armed conflicts, governmental officials and academic experts tend to consider members of PMSCs as persons acting on a private basis and thus as ‘civilians directly participating in hostilities’.

X I I . C ON C LUSION

As this chapter clearly shows, the Czech Republic has no specific policy or legal regulation of PMSC activities. The whole regulatory context of PMSCs is contained in the general legislation applicable to any other business activity. It is questionable whether PMSC regulation could or should be subsumed at least in a specific regulation for business of ‘ordinary’ security companies, as there is also a lack of detailed and specific regulation of security services. Even though PMSC business in the Czech Republic currently does not attract much attention on both sides (PMSCs set up under Czech legislation and legislators trying to introduce a regulatory framework), it does not mean that this situation might not dramatically change in the near future on one or the other side. One of the first signs of such progress may be considered to be the operational preparedness of ABL-AFG, the first Czech PMSC, which was 87 The

Montreux Document, above n 1. response to the leer requesting information about the Czech Republic position towards the Montreux Document, 3 February 2011 (on file with the author). 88 MFA

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supposed to render its services in Afghanistan, although their active presence was never officially confirmed. Nevertheless, such deficiency of regulation of PMSCs should not place the Czech Republic in a bad light, as very few states in fact regulate the activities of their PMSCs operating abroad. Even though no incidents involving Czech PMSCs have been reported so far, the consequences of PMSC activities, which under current Czech legislation seem generally to be uncontrolled, could perhaps result in undermining Czech foreign policy objectives and interests. All these factors should lead us to consider possibilities for regulating PMSC activities, bearing in mind the necessity of fostering protection of the most vulnerable in every armed conflict—civilians and the civilian population. Conflicts in Afghanistan and Iraq have shown not only an enormous integration of civilians in hostilities, but also an enormous reliance of states on civilian private contractors performing some controversial tasks. The readiness of PMSCss with very good military equipment to quickly become involved in hostilitie should lead us to reconsider the current possibilities for their accountability. The reason is that, in comparison with their military counterparts, for which international law contains clear rules on accountability, PMSC contractors may by held accountable only on the disputable and unclear notion of ‘direct participation of hostilities’, which goes hand in hand with the dubious question of the state’s jurisdiction (territorial? or host? or national state?). In conclusion, based on the above considerations, the Czech Republic ought to acknowledge the existence of the phenomenon of PMSCs and the implications which their unregulated business might have. Bearing in mind not only the principle of state monopoly on the use of force, but also the constitutional requirement concerning parliamentary approval of deployment of the regular Czech Armed Force, both of which are lacking in the case of PMSCs, and Czech foreign interests and the insufficiency of PMSC regulation, a public debate towards achieving a regulatory framework should be opened. The outcome of such a debate should be reflected in a survey on applicable national legislation with a special focus on the accountability of PMSCs, followed by a concrete proposal and recommendation of policy and/or legislative improvements at the national and/or regional (EU) level.*

* The opinions expressed in this report are solely those of the author and do not necessarily correspond with the official position of the MOD and do not bind this institution in any way.

9 France VANESSA CAPDEVIELLE AND HAMZA CHERIEF

I . I NTRODUC TION

T

HIS CHAPTER AIMS at providing an overview of existing French laws and regulations which have been or could be applied to the provision of security and military services. Despite being relatively new, the private security market in France is flourishing. However, the framework regulating the provision of security services is weak and there is no text which permits or prohibits companies from providing security or military-related services abroad. Prior to addressing the specificities of the French legal framework and security industry, it is essential to understand the influence in France of the Napoleonic inheritance of a centralised state. It has structured the development of the modern state and its institutions while also durably influencing mentalities and practices. The state’s essential missions (including the military and national defence) have remained the absolute preserve of the state and there is no legal status or accreditation in France which relates to either private security companies (PSCs) or private military companies (PMCs). While the public opinion in France is traditionally not in favour of the privatisation of public services, it is even more reluctant when it comes to security. Secondly, and as a corollary, security-related professions have been suffering in France from misunderstandings and suspicions—even more so when they are in the private sector. This explains why companies providing security-related services prefer to define themselves as ‘international risk consulting companies’, ‘firms specialized in risk management’, ‘business facilitators abroad’ or other terms deemed less controversial than PSCs. Similarly, it is not surprising that only one company, Secopex, openly defines itself as a PMC when in fact a number of companies actually provide services that could be considered private military services. It should be noted that the state’s essential missions have never been listed in any official text. For instance, the Conseil Constitutionnel (the 185

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Constitutional Council, a permanent court with judicial authority and consultative powers) stated that only the services/companies that are not considered as ‘national public service’ or ‘de facto monopoly’ based on the 9th alinea of the preamble of the 1946 Constitution can be privatised. National public services refer to the services which are considered necessary based on constitutional rules or principles.1 The identification of these ‘constitutional public services’ is not an easy task; the Council has used this expression only four times in the past. L Favoreu and L Philip tend to consider that justice, foreign affairs, national defence and policing are all public services that can easily be referred to constitutional texts.2 A reference to the sovereignty functions/sovereign powers seems to be implicit: how can a state be considered sovereign when its own security (national defence) is provided by another entity? The fifth article of the 1958 Constitution states that the President of the French Republic is in charge of the ‘national independency and the territorial integrity’; the thirteenth article of the French Declaration of Human Rights states that ‘the guarantee of the human rights requires a public force’. These reinforce the view commonly shared that the prohibition of delegating sovereign powers is, above all, a political choice.3 Paradoxically, the necessity of maintaining the know-how and resources to protect people, assets and information within France implies the development of private companies. Indeed, security-related missions always imply a grasp of strategic and confidential information. AngloSaxon companies, mainly those of the UK, US and South Africa, have penetrated the French market and—owing to their larger experience and resources, they are often preferred by the private sector and even by the public sector—possibly sometimes at the expense of the global economic competition, which does not spare ‘friend’ countries.

1 Decision No 86-207 DC, Conseil Constitutionnel, 25–26 June 1986, Loi sur les privatisations, para 59. This notion appeared for the first time in the 1986 decision but has often been re-used by the Constitutional Council. See decisions No 86-217 DC, 18 September 1986 (‘public service having its foundation in constitutional dispositions’, para 9), No 88-232 DC, 4 March 1988 (‘public service required by the Constitution’, para 39) and No 96-375 DC, 9 April 1996 (‘public services whose existence and functioning would be required by the Constitution’, para 5). However, the Constitutional Council has been very clear about activities which, according to the council, are not ‘constitutional public services’; these include, for instance, the terrestrial network (86-207 DC, para 56) or the public service of the credit (ibid). 2 L Favoreu and L Philip, Les grandes décisions du Conseil constitutionnel, 12ème édn (Paris, Dalloz, 2003) 682, para 30. 3 Favoreu and Philip underline the fact that the interdiction to delegate public functions could ‘be deduced from the organization itself of the constitutional system’.

France 187 I I . T H E F R E N C H P RIVATE SEC URITY AND M ILITARY IN DUSTRY

A. Overview of the Market (i) A New and Fragmented Market The modern type of companies providing security and military-related services have only emerged in France in the last 20 years. These companies have progressively changed the nature of the market, which was long dominated by former legionaries, soldiers and isolated mercenaries; these continue to exist, although they are now less visible.4 The private security and military market in France has been rapidly expanding over the last decade, although it is nevertheless still in its infancy—especially compared to the US, UK and South Africa—and pretty much fragmented. Unlike many of their foreign competitors, French companies have never been able to benefit from large, ‘long-term’ and lucrative contracts offered by government entities. This is mainly owing to the traditional reluctance to privatise or outsource any security-related activity, let alone military-related ones. As a result, French security providers lack the financial resources and capabilities which would enable them to win major contracts. In turn, this prevents then from winning large contracts which continue to be mainly attributed to their Anglo-Saxon counterparts. This also explains why there is no giant French player, like Xe Services LLC (formerly Blackwater), G4S or Kroll. With a reported turnover of €41 million in 2009 and 480 employees, Geos is the largest French private security provider. Geos was established in 1997 by several French nationals, including Stéphane Girardin, an alleged former intelligence officer. Geos is the oldest of the established PSCs in France. Geos, which defines itself as a PSC, has worked in partnership with the insurance company Axa, and became famous following the evacuation of French citizens from the Ivory Coast during the 2003 crisis. In 2007, Geos carried out a protection and assistance mission for European Union officials supervising the legislative elections in Angola.5 The company also obtained a contract with OTAN in Afghanistan to secure the supply of encrypted communication systems developed by Thales.6 RISK&CO, with a turnover of €15 million and a payroll of 120, is ranked second of the French security providers.7 It was established in 4 P Chapleau, ‘De Bob Denard aux sociétés militaires privées à la française’ (winter 2003) 52 Cultures & Conflits 49. 5 E Le Pelletier, ‘Renforcement du capital à Géos’, L’Express, 10 October 2008. 6 Intelligence Online, 24 June 2010, available at www.intelligenceonline.com. 7 See ‘Un marché de la sécurité encore embryonnaire’, La Tribune, 20 September 2010.

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2006 as a joint venture between Bruno Delamotte’s BD Consultants and Atlantic Intelligence of Philippe Legorjus, former chief of the French gendarmerie’s elite unit GIGN. While the former still chairs the company, the latter left it following internal disagreements. Like Geos, RISK&CO provides a wide range of activities, including the protection of sites, operations and expatriates, country risk assessments and business intelligence. The company is known to work a lot for Total, including in Yemen and Niger. After failing to team with Erinys International in October 2009, RISK&CO formed a partnership with Canadian Garda World and Dubai-registered Olive in the Middle-East to boost its activities in these regions. Sécurité Sans Frontière (SSF), established in the 1990s by Frédéric Bauer, the former head of security at Dassault, is also considered to be a well-established security provider. According to its website, the firm is now part of the Scutum Group, an integrator of security systems and provider of electronic security for people, property, tools and production processes. Since May 2008 SSF has been run by retired General PierreJacques Costedoat, who headed operations of DGSE (French external intelligence services) in the past and who joined SSF in 2003. In 2006, SSF reportedly won two contracts from the Moroccan energy ministry to conduct security audits on industrial sites. More recently, SSF expanded its activities in travel security by forming a partnership with tour operator Selectour. SSF also claims to provide crisis management, competitive intelligence, safety and security audits, as well as training. A number of smaller entities—with an annual turnover below 10 million and a headcount of less than 100—also provide general securityrelated services. These are usually low profile, and little public-domain information is available on them. They include Anticip, Gallice Security, Vitruve Defence & Security, Epee, Adenium, Risksgroup, Eric SA, Security Advisory and Service. Many of these companies have been established by former employees or associates of existing companies. For instance, the 65% shareholder of AICS Consultants, Christophe Bonamy, left the company in 2006 to form AICS Protection with business associate Christian Richard. Similarly, Erys and Grupo Irena were founded by former Geos employees. At least four business intelligence companies were established by former RISK&CO employees in the wake of the internal dispute within the company: Aptea and Seawell were formed in 2007, respectively by Nathalie Spillmann (the firm’s former general manager) and Benoit Legorjus (the son of Philippe Legorjus); in 2008 Sokol International was formed by Xavier Moreau, who used to work for the company in Russia, while Christophe Burck, who previously headed the company’s business intelligence section, co-founded Xtensaw with Gerald de Loen, a former executive of KPMG. The existing security providers in France claim to be undergoing

France 189 rapid growth, and new entities seem to be constantly established. This is not surprising, considering how fast growing the security market is globally and how new it is in France. To date, no French company can be compared to its British or US competitors in terms of either global presence or scope of activities. Many companies in France remain specialised, with a geographic expertise, like Sokol International in Russia or Grupo Irena in Latin America—and, of course, in Africa or the MiddleEast, two of France’s traditional spheres of influence. A few companies have also developed a niche market, like travel security or the security of information. Aside from SSF, cited above, Crisis Consulting and SOS International have both developed in the travel intelligence, monitoring and assistance sector, although they opted for different strategies. Crisis Consulting, established in 2001 by Stephane Malvoisin, expanded through the use of its proprietary technology—a GPS tracker. The company, which has made partnerships with various players in the travel security sector, including Ijet and Europ Assistance, recently handled the repatriation of Vinci and Bouygues workers from Egypt. In 2009, Crisis Consulting teamed with Securymind and Ineo Defense to provide the shipping industry with protection services, including the live monitoring of ship movements.8 Meanwhile, SOS International was founded and developed by Pascal Rey-Herme and Arnaud Vaissié as a medical assistance provider. The company formed a joint venture with UK-based Control Risks in July 2008; SOS International brought with it medical assistance and logistic capabilities, while Control Risks, an established PSP, shared its experience in risk analysis and security consulting. A handful of French companies have chosen data recovery as their core business activity; together they barely account for 20% of the market, according to Intelligence Online. One of them, Lmci, was set up in 1992 by engineer Guillaume Muscat. A former officer in charge of information and communications technologies at DGSE, Alain Belleface, recently joined the company as an associate director after working briefly for RISK&CO, where he headed the computer security department. (ii) Companies, Subsidiaries and Joint Ventures Incorporated Aboard Another characteristic of the French market is the large number of entities (companies, subsidiaries or joint ventures) set up by French nationals in foreign jurisdictions. The best known of these companies is Earthwind Holding Corporation Group (EHC), headquartered in Dover, Delaware, US. Established in 1999 by former French Army officers, EHC is the only francophone company 8

Intelligence Online, March 2009.

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registered in the US. According to Intelligence Online (21 October 2010), EHC focuses on Africa and has recently recruited Jean-Pierre Pérez, a former head of the Legion Etrangere and retired general who was an advisor for Africa to General Jean-Pierre Kelche in the French army headquarters; Perez also previously worked for Secopex. EHC claims to be the ‘most liberalized French PMC’ and the closest to the Anglo-Saxon model. The company allegedly operated in Iraq (2003–07) and Afghanistan (2006) in close protection, training and security of transport and sites. EHC says it is specialised in technical and operational assistance, from armed protection to logistics, and claims to have a pool of over 500 employees who can be immediately deployed. A UK PSC, Northbridge, has apparently already recruited French staff members from EHC for its operations.9 Recently, a company named KAIS International was established outside of France by two former members of the French special services.10 The company has an office in Marseille headed by Stéphane Samarelli, allegedly a former member of the French special services, who also reportedly works for Oropex, a security company headed by Serge Spangaro. The article states that, after winning a contract from a shipowner to protect its vessels off the coast of Somalia, Kais International was asked by another French group to escort its boats off the coast of Somalia ‘but the French State opposed the idea because this kind of private military activity is against the law in France’. Other security companies registered abroad by French nationals include Odyssey (believed to be incorporated in Switzerland or the US and set up in 2000 in Abidjan, Ivory Coast by Frédéric Roussey De Larche and Lamadieu, two former French gendarmes), ASPIC (incorporated in Seychelles and run by Frenchman Bruno Aurelle), Defense Control (Luxembourg) and Zoom Dssb (established by French Jean Louis Zanardo). As already mentioned, Xavier Moreau, a former parachute regiment officer, established Sokol International in Moscow in the early 2000s after working there for BD Consultant. According to Intelligence Online (6 July 2007), Sokol International is related to two Russian companies: business intelligence firm KM Consulting, headed by Moreau’s brother; and Battalion, specialised in physical security and run by Alexei Novikov, a former government officer. Also, a former RISK&CO executive, Frank Puget, established Ker-Meur SARL in Lausanne, Switzerland in December 2007 through a trust company, Fibexa SA, run by the brothers JeanPierre and Laurent Rigoli. Philippe Legorjus reportedly recently set up 9

Intelligence Online, 21 October 2010. The Indian Ocean Newsletter, 13 February 2010, available at www.africaintelligence. com/ION. 10

France 191 a company with UK-based Stirling Group to access the worldwide risk management market without violating the 2003 anti-mercenary law.11

B. The Provision of Military-related Activities Activities which could be considered military activities, such as military training, logistic support, military advice on organisation or procurement, traditionally represent a marginal part of the sales turnover of French companies if any.12 At present, there is no French company which provides military training or operational support to armies in war-torn countries or has been seen taking an active participation in a direct conflict. As a general staff officer once commented, it is more appropriate to talk in France of ‘private security companies which sometimes fulfil tasks of a military nature than private military companies’.13 One company, Défense Contrôle International (DCI), is known to provide technical military training, advice and assistance. The company was established in 1972 to facilitate the transfer of know-how to foreign armies buying French defence equipment; it is the oldest company in this field currently active. To accomplish this mission, DCI has several specialised subsidiaries.14 The 1997 report of the Special Rapporteur on the question of the use of mercenaries positioned one of them, named COFRAS, at the same level as genuine Anglo-Saxon PMCs, such as Executive Outcomes and MPRI.15 DCI has been criticised by Amnesty 11 G Munier, ‘Des mercenaires Français en Irak?’, 16 December 2010, available at http:// www.michelcollon.info/Des-mercenaires-francais-en-Irak.html?lang=fr. 12 L Francart, ‘Sociétés militaires privées, quel devenir en France?’ (January–May 2007) Inflexions. Question de défense 87. 13 C Babinet, E Pallud and P Etienne, Sociologie des sociétés militaires privées et conséquences sur les armées régulières (Centre d’Etudes en sciences sociales de la défense, 2006) 319. 14 DCI subsidiaries include COFRAS, the army component of DCI; NAVFCO, its naval arm; AIRCO, which works closely with the French aviation industry to offer know-how and training, DESCO, which provides French training and know-how in defence equipment programmes, and STRATCO (Société Francaise de Stratégie et de Conseil), which stands for ‘a strategic think tank’ on French defence and industry. 15 UN Doc E/CN.4/1997/24, Report on the question of the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to selfdetermination, submitted by Mr Enrique Bernales Ballesteros, Special Rapporteur, pursuant to Commission resolution 1995/5 and Commission decision 1996/113, 20 February 1997, para 39: ‘Mercenaries were not, however, an exclusively African phenomenon. Although Executive Outcomes was registered in Pretoria, its holding company, Strategic Resources Corporation (SRC), was also registered in London. The United States of America had its Military Professional Resource Institute, made up of at least 7 retired army generals and 140 former officers; France its Cofras company; and Great Britain, the British Defence Systems Limited (DSL). These companies were able to operate normally because of gaps and lack of precision in the legislation at both the international and internal levels. They had always worked for foreign Governments and under contract so far, but could become a real threat if they decided to work for armed opposition movements attempting to destabilize Governments’.

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International for having no clear accountability to either the government or parliament. However, DCI is 49.9% directly controlled by the French state and is therefore not a PMC; it has been depicted as a ‘privatized form of French military cooperation’.16 As of September 2010, only three French companies were accredited by the French embassy in Baghdad with operations in Iraq, namely AICS Consultants, Anticip and Gallice Iraq Services.17 AICS Consultants, headed by Pascal-Armand Metais, was the first company to break into the Iraqi security market with a contract to protect the European Union delegation in the country from 2003 to 2006; at present, the company operates in Baghdad out of its office in Amman. Gallice Iraq Services, a joint venture between Gallice Security—a company formed in 2007 by former GIGN head Frédéric Gallois and currently run by Gilles Sacaze, a former DGSE member—and Iraqi interests, won a contract in September 2010 to protect the Iraqi foreign ministry. The company formed an alliance with the Abou Rich tribe, reportedly to benefit from its local knowledge and network.18 Finally, Anticip, founded by several former GIGN officers, opened an office in Iraq in 2009 and reportedly convinced Thales to switch its security provider for Anticip. Anticip is a subsidiary of Eryma, formerly Siemens Securite. The company’s president, Richard Terzan, used to head the risks department of insurance group Gras Savoye. Like RISK&CO, Geos recently announced the opening of an office in Iraq.19 The move of French security firms to Iraq follows both the political ambition to develop the French presence and the return of French commercial companies in the country. However, none of these companies was selected by the French authorities to secure a delegation of businessmen who were to attend the ‘Baghdad foire’ in October 2010; the tender was won by US-based Triple Canopy—which shows the limit of the capacities of French security providers.20 Only Secopex openly defines itself as a PMC. Secopex, based in Carcassone, was reportedly established in 2003 by Pierre Marziali, a former parachute regiment officer. France 24, a TV information channel, featured the company and its training of contractors in the Czech Republic—‘where the arms legislation is less strict than in France’.21 In the reportage, Marziali defined Secopex as a PMC which provided 16 B Elomari, ‘DCI: privatisation de la coopération militaire française et commerce des armes’ in Le boom du mercenariat: défi ou fatalité? Actes du colloque du 30 novembre 2000 (Lyon, Survis, 2001) 42. 17 Intelligence Online, 23 September 2010. 18 G Malbrunot, ‘Sécurité: les Français s’implantent en Irak’, Le Figaro, 29 September 2010. 19 Geos press release, May 2010. 20 Malbrunot, above n 18. 21 M Duquesne and W Bracciano, ‘Militaire privé: la France s’engage!’, France 24, 25 October 2010, available at www.france24.com/fr/20101023-2010-10-23-1015-contractors.

France 193 ‘military advice, operational support services and even logistic support, and which relied essentially on a reservoir of personnel coming either from the interior ministry or the defence ministry’. In 2008, Marziali had claimed in an interview that Secopex could mobilise 2000 persons with diverse backgrounds, including linguists, plane pilots and nurses. Secopex had allegedly signed a letter of intent with Somali authorities to fight maritime piracy.22 Despite their relatively limited and recent experience in the provision of military services, private firms have won contracts traditionally devoted to the French military in such places as the Congo, Bahrain and Abu Dhabi.23 Since 2000, Abu Dhabi has been using a team of six French private instructors, former marine commandos, to train its ‘nageurs de combat’ despite repeated protests of the French state cooperation institutions. In 2009, Congo’s president Ali Bongo awarded the instruction and training of his presidential security force to Gallice Security. In Bahrain, a company set up by a former DGSE office is said to train the national intelligence officers, while the country’s Special Security Forces are trained by a French officer detached by the national police.

C. The High Penetration of Former Military and Intelligence Officers In addition to the numerous examples provided above, Amarante International and Securymind illustrate how former military and intelligence officers still form a large part of the French companies operating in the security industry.24 Amarante International was co-established by Alexandre Hollander, ‘to use the experience he gained as a military member of DGSE in the private sector,’ and Lorenzi, the CEO of Serenus Conseil.25 Lorenzi was reportedly an adviser to the DGSE strategy director Bruno Joubert. Alexandre Hollander and other former DGSE officers reportedly hold a 22 The two known subsidiaries of Secopex—CSA International and Secopex International—have both ceased to operate, with the latter ending in compulsory liquidation. Marziali was killed in the midst of the Libyan crisis on 13 May 2011, allegedly during an altercation at a check point held by the rebels in Benghazi. See ‘Le français tué en Lybie dirigeait une société militaire privée’, Le Monde, 14 May 2011; P Chapleau, ‘SECOPEX en Lybie, suite et (triste) fin’, lignesdedefence.blogs.ouest-france.fr/archive/2011/05/13/ secopex-en-lybie-suites-et-fin.html, 19 May 2011. 23 Intelligence Online, 4 November 2010. 24 Reconverted military or police officers have been historically involved in private companies and journalists have not hesitated to talk about the ‘GIGN connection’ to illustrate the fact that several directors of private security companies were former members of GIGN associated with the French secret services. See P Chapleau, Sociétés militaires privées, enquêtes sur les soldats sans armés (Paris, Ed du Rocher, 2005) 169 et seq. 25 Intelligence Online, 6 September 2007.

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51% shareholding in Amarante International, while the remaining 49% is controlled by Serenus Conseil. Amarante International has set up a department dedicated to the protection of infrastructure against the terror attack risk. Securymind was established by former marine commando Luc Alloin and employs another former marine officer (Christophe Champagne) as its maritime security expert. The company is one of the 15 French companies which obtained the state’s approval to ensure respect for the International Maritime Organisation’s International Ship and Port Facility Security Code (ISPS).26

D. Self-regulation Efforts Some well-established security companies have voiced concerns over the unethical or unprofessional practice of some of the industry players in France, and have been advocating a more formalised and appropriate control of the private sector in order to protect their reputation and differentiate themselves from ‘darker elements’. Nevertheless, these companies would generally prefer not to see any additional control if such control were to pose a threat to their operations. Many companies have also expressed their commitment to respect moral, ethical and deontological rules, as well as laws, human rights and international conventions such as the Geneva Conventions, and Additional Protocols, including the plans to fight against the recruiting, using, financing and instructing of mercenaries.27 This commitment and operative standards are sometimes formalised into an ethic chart or code.28 26

Intelligence Online, 27 May 2010. It is indicated on Secopex’s website (secopex.com) that: ‘Secopex sees itself duty-bound to operate always at the highest standards of honesty, integrity, openness and professionalism. These values are incorporated into the framework of our basic principles, as are: a respect for all applicable laws; a refusal to interfere in the political arena; the rejection of corruption in all its forms, whether public or private, active or passive; the satisfaction of our clients; unity of purpose within the company. Secopex adheres to: the principles of the Universal Declaration of the Human Rights; the Geneva Convention of 1949; the 1989 international convention against the recruitment, use, financing and training of mercenaries; the basic conventions of the International Labour Organisation; the principles of the world-wide pact of the United Nations Organisation; and acts in conformity with all relevant decisions of the UNO and the European Union.’ Meanwhile, the website of the EHC group (www.groupe-ehc.com) states that ‘EHC Group carries on its activities in total respect with international standards outlined by the Geneva Conventions. The company does not take any direct or indirect part in conflicts. EHC Group only works for legal institutions or companies. EHC Group has recently signed and adopted the “Code of Conduct” of the International Peace Operations Association (IPOA).’ 28 For instance, Geos’s ethics code promotes seven fundamental principles: transparency of structures and assignments; independence through financial autonomy as well as position takings; respect for commitments; approval of international principles; partnership 27

France 195 Establishing ethical or supervisory committees to check good practices has also become industry practice. These dedicated bodies often include government officials from the Defence Ministry, the Interior Ministry and the Foreign Affairs Ministry, as well as political figures, journalists, experts, academics and executives.29 Recently, Geos and EHC have signed the International Code of Conduct for Providers of Private Security Services drawn up by the Swiss diplomatic corps in collaboration with both the UK and US governments.30 This document indicates rules of engagement for security providers in fighting situations, as well as recruitment and training standards.

I I I . T H E R E G ULATORY AN D LEGISLATIV E F R AME W OR K AP P LIC ABLE TO P RIVATE S E C TOR AND MERC EN ARY AC TIV ITIES

While mercenary activities and PMC’s activities can be similar on several points, the goal of the French authorities was clearly to prohibit mercenary activities without hindering the development of the private security sector. Contrary to private military companies, mercenary activities are specifically regulated by the French criminal law. France has signed the Montreux Document. However, it appears to be only a general guide for states. For France, a state which does not resort to private military companies, the most interesting part of this document remains point C of the second part, relating that ‘good practices aim to provide guidance to home states for governing the supply of military and security services by PMSCs and their personnel abroad (“export”)’. based on mutual confidence with the client; confidentiality; and quality of the personnel. Interestingly, the Charter of ethics elaborated by the EHC group bases the rules of engagement of the group on the double principle of necessity and proportionality. The EHC Chart of Ethics stipulated rules of commitment as follows: ‘When authorized by the art 122-5 of the French penal code to use strength, and more particularly weapons, EHC Group staff can only resort to it in a strictly necessary and proportional way considering the objective. To prevent an offence or a crime against property of people, the staff, after notice, can do anything as long as it is proportional to the gravity of the aggression.’ The whole EHC Charter of ethics can be seen at the website. 29 For instance, Geos has set up a Supervisory Committee to ‘ensure that the activities of GEOS are in compliance with the Group’s Ethics Code, to monitor the regularity of the accounts of the Group and to encourage discussion and debate on the role of the private sector in the security field’. This group is led by Lieutenant-General of the Land Forces (Ret) Jean Heinrich. Heinrich was director of the ‘Action Service’ of the DGSE (French external intelligence services), founder of the Directorate of Military Intelligence (DRM— French DIA) and also former advisor to three Ministers of Defence. Other members include a former Director of the DCN and DGA (Daniel Reydellet), and French Ambassador to Germany and Algeria François Scheer, a former Secretary General of the French Ministry of Foreign Affairs. See the composition of the supervisory Committee at www.geos.tm.fr. 30 Intelligence Online, 2 December 2010.

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French personnel are indeed well appreciated for their professionalism and military knowledge by foreign PMCs. It contains several ideas which perfectly fill French legislation’s gaps in terms of registration and the establishment of an authorisation system (§§ 53–65). It also suggests means to monitor compliance and ensure accountability, especially by ‘providing for criminal jurisdiction in their national legislation over crimes under international law and their national law committed by PMSCs and their personnel and, in addition, consider establishing . . . criminal jurisdiction over serious crimes committed by PMSC personnel abroad’ (§ 71). Still, all these suggestions remain merely good practice and are not legally binding. There is, however, an appropriate law that specifically deals with the private sector, but it only concerns the private security companies operating in France; as a consequence, the regulation of both PMC’s activities, which can be linked to mercenary activities, and PSC’s activities remain unclear.

A. The Regulation of Private Security and Military Companies: A Civil and Penal Overview of Existing Legislation The only appropriate text is the 12 July 1983 law, regulating private security activities, and it only concerns several activities linked to private security industry. Other applicable dispositions are derived from the general rules of corporate and labour law and criminal law. (i) The General Regulation of Security Activities: the 12 July 1983 Law The regulation of private security services has evolved in fits and starts since the enactment of the 12 July 1983 law (No 1983-629) regulating private security activities.31 This law, which established a distinction between ‘private security services’ (which include the protection of people/goods/private sites, transportation of cash or other valuables) and ‘private investigations services’ (private detectives) has remained fundamental to the regulatory framework. This law stipulates that companies offering private security or investigation services must obtain an accreditation delivered by the Department Prefect (or by the Police Prefect in Paris) based on conditions defined by the Council of State. Article 21 states that former policemen or gendarmes have to wait for five years after retiring before undertaking any investigative services. The Prefect’s authorisation can allow weapon carrying under specific 31 For instance, the terror attacks which hit Paris in 1995 prompted the enactment of the 1995 Law of Orientation and Planning Related to Security (LOPS), which has extended the private security companies’ field of competences.

France 197 conditions only when required by the mission. Professional training qualifications, identification cards and uniforms are also part of the requirements of the 1983 law. The 18 March 2003 homeland security law (No 2003-239) set up a body of rules further limiting the responsibilities and capabilities of private security companies. These include permanent control by police officers and gendarmes, a dissuasive punishment in the case of law infringement and the obligation for all employees to obtain an accreditation based on eight criteria.32 Private security companies are limited by the principle of specialty, which prevents them from conducting different activities at the same time. A bodyguard cannot, for instance, be recruited to secure cash transportation services. The 2003 law also makes clear that private security guards protecting goods/buildings can only perform their duties within the strict perimeter of the site where they are employed; they need a special authorisation delivered by the Department Prefect to patrol on public streets. Only ‘private security services’ and ‘private investigations services’ are currently regulated, while other fast-growing activities, such as ‘business intelligence’ and ‘risk management’, have been left out of the scope of the regulatory framework. Furthermore, companies providing security and/or military services outside the French territory have never been specifically addressed by the existing legislation. During the preparatory work leading to the drafting of the 2003 law prohibiting mercenary activities, the late (UMP) senator Michel Pelchat noted the need for the regulation to include French PSCs operating abroad. Finally, several scandals involving French private companies abroad have prompted the government to introduce new measures in 2010 and 2011.33 A joint ministerial representative in charge of private security was introduced by Décret (No 2010-1073) on 10 September 2010. This representative, appointed for three years, has no real power of control upon the private security industry. Its primary mission is to define the principles relating to the cooperation between the private security sector and the state’s authorities (Article 2), to coordinate the scrutiny of illegal behaviours and to suggest potential modifications in the existing legislation (Article 3). Its mission also consists in promoting the creation and the harmonisation of labels and certifications at the European level (Article 3). The joint ministerial representative has a dual function. First, 32 These criteria are: (i) holding French or ‘European’ nationality; (ii) being exempt of criminal condemnations; (iii) being exempt of an expulsion decision; (iv) being exempt of a receivership; (v) being exempt of carrying acts contrary to the honour, integrity, moral standards or against the security of people or goods or the security of the state; (vi) being exempt of practising collide activities; (vii) not being a private investigator and a security agent at the same time; and (viii) giving proof of a professional activity. 33 See, inter alia, ‘Opération ‘main propres’ dans la sécurité privée’, Le Figaro, 11 May 2008.

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whilst he does not have any real power of control, he has to ensure that the PSCs’ activities are not exercised out of the state’s control. His function of coordination includes the responsibility for making the existing legal framework as effective and ethical as possible; indeed, it is not unusual for inappropriate ‘exchanges’ of services or information to occur between former colleagues.34 As there is no effective control of the accreditation mechanism mentioned earlier, it also happens that individuals work for private security companies or establish their own companies despite having a questionable track record. Secondly, the representative also has an important role in the professionalisation of the private security sector (article 4).35 A new law (No 2011-267), d’orientation et de programmation pour la performance de la sécurité intérieure, was enacted on 14 March 2011; it incorporated Articles 33-1 to 33-11 into the 12 July 1983 law. One major innovation of Article 33-2 is the creation of a ‘National Council for private security activities’, which is a state authority. The National Council is competent to deliver administrative sanctions (Article 33-5, 3° and 33-6). There are different types of disciplinary sanctions, ranging from a mere reprimand to a prohibition of practising an activity related to private security (for a maximum of five years). It is also competent to deliver, refuse, take away or suspend any approval, authorisation or professional cards. Importantly, the National Council’s members and agents (the same competence is granted to regional commissions) have real effective powers of investigation according to Article 33-8, I. These controls can only be made with the approval and under the direct control of the juge des libertés et de la detention (Article 33-8, II). The absence of a specific authority in charge of controlling the private security sector and enforcing the law was an important limit to the regulation’s efficiency. As such, the creation of a state authority—financed by state money, which is a guarantee of its independence towards private security companies, with effective powers of control and sanctions—is a major improvement towards a more efficient regulation of the private security sector. It nevertheless remains to be seen whether the Council and the regional commissions will have the necessary resources to enforce the French legislation applicable to private security activities. 34 ‘Le commissaire Moigne en détention provisoire’, available at www.lefigaro.fr, 25 March 2008. 35 Professional training qualifications are a very important step towards the professionalisation of the security industry. However, the quality and the pertinence of these developments remain uncertain, given that there is no agreed definition of the different security activities. Furthermore, only four training certificates are applicable today— one concerning security and prevention agents and three relating to cash transportation activities—and they do not take into account the diversity of services provided under these two categories. It is noteworthy that the S-NES (security syndicate) has established a list of 11 categories of agents who could all be categorised as ‘prevention and security agents’.

France 199 B. The Corporate and Labor Law Applicable to Private Military and Security Companies: the Lack of Specific Legislation The French government remains hostile to any direct participation of private security/military companies in fighting operations. However, it is accepted that the private sector can be involved during the ‘stabilisation’ phase, once national armies can quit the theatre of operations (as opposed to fighting). In France, it is prohibited to manufacture, trade, transfer, possessor carry weapons. The carrying of weapons is only allowed by police officers, gendarmes, soldiers, security agents of state-owned companies, accredited staff of diplomatic or consular corps, specific staff members of private companies, such as security guards, and—exceptionally—some persons whose life is threatened (it is not permitted by employees of companies offering close protection).36 Still, like every company, PSMCs are subject to common and labour law. When contracting with public authorities, they also have to comply with strict government procurement rules and procedures. In France, every company owner must register with both the Tax Department and the Trade and Companies Register, and publish a legal notification. All the formalities must be undertaken with the Trade Court Clerk where the company’s corporate headquarters are located. The Clerk ensures the legality of the request and the conformity of the company’s statements with the legislative and regulatory measures. The registration is effective only after the whole process is completed. Establishing a PSC requires a specific authorisation from the Police Prefect.37 Moreover, some activities are subject to specific rules, as stated above. A key criterion of the Labour Law stipulates that active military personnel can not be employed by private companies. Several kinds of employment contracts are possible in France, including: • permanent contracts;38 • short-term contracts;39 36 The regulatory part related to weapon carrying is contained in the ‘Décret No 95-589 du 6 mai 1995 relatif à l’application du décret du 18 avril 1939 fixant le régime des matériels de guerre, armes et munitions’. 37 See Art 5 of Law No 83-629, 12 July 1983, which regulates private security activities; in addition, Décret No 2005-1122 du 6 septembre 2005 pris pour l’application de la loi No 83-629 du 12 juillet 1983 réglementant les activités privées de sécurité et relatif à l’aptitude professionnelle des dirigeants et des salariés des entreprises exerçant des activités de surveillance et de gardiennage, de transport de fonds et de protection physique des personnes. 38 cf Art L1221-2 and the s III of the French Labour Code: ‘Le contrat de travail à durée indéterminée est la forme normale et générale de la relation de travail. Toutefois, le contrat de travail peut comporter un terme fixé avec précision dès sa conclusion ou résultant de la réalisation de l’objet pour lequel il est conclu dans les cas et dans les conditions mentionnés au titre IV relatif au contrat de travail à durée déterminée.’ 39 cf Title IV of the French Labour Code regulating the breach of contract for fixed term contracts.

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• mission contracts for overseas missions, which cannot exceed 24 months; • temporary contracts: labour contracts can be concluded with temporary workers only through a dedicated temporary work agency.40 Each mission imposes the conclusion of a contract of provision between the temporary work agency and the operator, known as the ‘company user’, as well as a work contract, known as a ‘contract of mission’, between the temporary employee and his employer (the temporary work agency). A ‘detached contract’ can also be concluded with temporary workers through temporary work agencies when the latter places an employee at the disposal of a ‘user company’.41 Some private security companies can be tempted to avoid the application of the French corporate and labour law by submitting the contract to a foreign law, through subsidiary companies established in a foreign country. This aims to prevent the enforcement of a legal status that is considered too favourable for the employees.42 In France, the labour tribunal named Conseil des Prud’hommes is the competent jurisdiction for first-degree litigation relating to labour contracts.43 The national labour laws on personal health, safety and security have been granted extraterritorial application in recent national jurisprudence.44 The legal person as well as employees and corporate managers can all be prosecuted at both the civil and criminal levels for failing to effectively provide safety/security.45 In particular, the obligation to ‘take the necessary measures to ensure the safety and to protect physical and mental health of all employees, including temporary workers’ (Article L 230-2 of the French Labour Law) has been significantly extended. The Karachi case law has transformed the security obligation for the employer 40

See Arts L1251-1 to L1251-4 of the French Labour code. See Arts L1251-42 to L1251-47-4 of the French Labour Code. 42 See ‘Pas de sécu pour les gardes privés’, Intelligence Online, 18 November 2010. It should be noted that PSCs and PMCs ‘liability could be involved for acts committed on their behalf by employees; their dissolution could be pronounced in accordance with the Law. 43 The Book IV of the Labour code is entirely dedicated to the litigation resolution by the Conseil des Prud’hommes. The Conseil is competent in first instance and last resort for litigations under €4000. For litigations below €4000, an appeal can be lodged to an Appeal court before the cassation. 44 See the various decisions made by the Cassation Court on 22 February 2002, 26 November 2002, 16 September 2003. 45 Civil responsibility (see the French Civil Code) allows the person who endured a damage to obtain compensation (damages according to the tort law) by way of damages. Here the fault is by a defect of prudence or diligence, and by the absence of the minimum checks which would have prevented an erroneous decision. The criminal responsibility does not exclude a penal sanction. It can be engaged based on the Criminal Code if the violation created damage (see Arts 123 and following of the French Criminal Code) or, against the corporate executive on the base of a failure to the Labour code in the case of infringement of a rule of hygiene and/or safety. 41

France 201 into an obligation of results: it is not sufficient to provide the means to achieve the security obligation; it is now also necessary to achieve results. The verdict followed a terror attack committed in Karachi against a bus transporting employees from the semi-public shipyard constructor DCN (Direction des Chantiers Navals) in 2002. (i) The Criminal Law Applicable to Private Military and Security Companies: The Application of General Principles to a Specific Activity The relevant dispositions of French criminal law concern on the one hand the rules of individual criminal responsibility and on the other hand the rules of companies’ criminal responsibility. First, French civil and criminal law applies to French citizens who commit certain types of crimes wherever they are. In addition, all individuals are subject to the criminal law of the state where the offence is committed. They do not benefit from immunity, even when the company works under a contract with the United Nations, for example. Even holders of a diplomatic immunity are not protected from the consequences of the acts they commit. Secondly, in France, the principle of criminal liability of legal persons has been admitted since 1992 by the Criminal Code. PSCs and PMCs could be liable for acts committed on their account by company representatives or departments. This criminal liability does not exclude that of any natural persons who are perpetrators or accomplices of the same act.46 Penalties incurred by legal persons for felonies or misdemeanours are described in Articles 131-37 to 131-39 of the French Criminal Code. In addition to a fine that can amount to 1million, other penalties can apply, such as dissolution, prohibition of operating, placement under judicial supervision for a maximum period of five years, permanent or temporary closure, prohibition of participating in public tenders, or permanent or temporary prohibition of seeking public funds.47

46 See Art 121-2 of the French Criminal Code: ‘Les personnes morales, à l’exclusion de l’Etat, sont responsables pénalement, selon les distinctions des articles 121-4 à 121-7, des infractions commises, pour leur compte, par leurs organes ou représentants. Toutefois, les collectivités territoriales et leurs groupements ne sont responsables pénalement que des infractions commises dans l’exercice d’activités susceptibles de faire l’objet de conventions de délégation de service public. La responsabilité pénale des personnes morales n’exclut pas celle des personnes physiques auteurs ou complices des mêmes faits, sous réserve des dispositions du quatrième alinéa de l’article 121-3’. 47 Art 131-38 states: ‘le taux maximum de l’amende applicable aux personnes morales est égal au quintuple de celui prévu pour les personnes physiques par la loi qui réprime l’infraction. Lorsqu’il s’agit d’un crime pour lequel aucune peine d’amende n’est prévue à l’encontre des personnes physiques, l’amende encourue par les personnes morales est de 1 million.’ To see the complete additional penalties, see Art 131-39 of the French Criminal Code.

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C. The Prohibition of Mercenary Activities: The 2003 Law. In 2003, the French parliament enacted an appropriate law to prohibit mercenary activities. It cannot be excluded that the 2003 law could be applied to PMC’s members, given that there is no legal definition of PMC and the proximity between the two type of activities. Prior to the adoption of the relevant international treaties, Resolution 2465 (XXIII) made clear that, ‘using mercenaries against a National Liberation Movement . . . is a criminal act . . ., mercenaries themselves are criminal’.48 Resolution 3314 (XXIX), adopted by the UN General Assembly, first established the link between an international obligation (the prohibition of armed force and, more precisely, the prohibition of aggression defined by this resolution) and mercenarism. The use of mercenaries is defined as a form of aggression by Article 3(g), which specifies that ‘the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the act listed above, or its substantial involvement therein’.49 These two resolutions are fundamental as they condemn mercenary activities as acts contrary to international law. However, several questions have emerged. First, it is not clear whether, under these two texts, mercenarism is an infraction in itself or just a practice among others which fall within the larger notion of aggression. Secondly, the legal value of UN General Assembly resolutions remains unclear. They are of a recommendatory nature, and therefore, in principle, they do not create any legal obligations.50 While a resolution that is not binding in itself may prescribe principles of international law and be or intended to be merely declaratory, it can at the same time, ‘provide a means for corralling and defining the quickly growing practice of States while hortatory in form’.51 Such could be the case when resolutions include matters that deal with the UN Charter, as, for instance, the prohibition of the use of force. The question of the legal value of General Assembly resolutions is particularly important in the case of a state like France, which is not party to the 1989 International Convention against the recruitment, use, financing and training of mercenaries. The 1977 Additional Protocol I, to which France is party, does not have the incrimination of the mercenary as its main purpose. Article 47 was mainly drafted because 48

UN GA Res 2465 (XXIII), 20 December 1968. The list includes invasion or attack by armed forces, military occupation, bombardment, etc. See UN GA res 3314 (XXIX), 14 December 1974. 50 I Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford University Press, 2008) 14; Separate Opinion of H Lauterpacht, Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa, [1955] ICJ Rep 90, 118–19 and 122. 51 Brownlie, above n 50, 14. 49

France 203 of the attitude of some mercenaries recruited to fight against national liberation movements. The status resulting from this instrument is not very clear, owing to the antagonism between the states which opposed the mercenaries being considered as combatants and the others. Nevertheless, this article cannot be used directly to regulate mercenary activities; rather, it is a tool to discourage individuals from becoming mercenaries. It is not clear whether the international responsibility of the state or the individual criminal responsibility of the political leaders will be engaged at least for the simple recruitment or use of mercenaries. The International Law Commission, for instance, first listed mercenary activities as a crime against peace in 1990, before assessing in 1996 that it was an insufficiently serious offence to be part of the list of crimes against peace and security. In any case, by passing Law No 2003-340 of 14 April 2003, ‘relative à la répression de l’activité de mercenariat’, the French parliament filled a gap in the domestic legislation on which the existing international framework had no effect. Article 436-1 of the French Criminal Code provides, nevertheless, a definition of mercenaries similar to the one proposed by international treaties; this clearly reduces the scope of its application, whereas its efficiency remain limited. (i) The Necessity of a Law against Mercenary Activities: The Creation of an Appropriate Legal Framework Rules contained in Articles 23-8 and 25-6 of the Civil Code are applicable to mercenary activities.52 These two articles state that a French citizen can lose his nationality if he commits a serious crime. Article 23-8 says that a French citizen can be stripped of his nationality if, despite having been instructed by the French government to resign, he continues to 52 Under Art 23-8 of the Civil Code, ‘perd la nationalité française le Français qui, occupant un emploi dans une armée ou un service public étranger ou dans une organisation internationale dont la France ne fait pas partie ou plus généralement leur apportant son concours, n’a pas résigné son emploi ou cessé son concours nonobstant l’injonction qui lui en aura été faite par le Gouvernement. L’intéressé sera, par décret en Conseil d’Etat, déclaré avoir perdu la nationalité française si, dans le délai fixé par l’injonction, délai qui ne peut être inférieur à quinze jours et supérieur à deux mois, il n’a pas mis fin à son activité. Lorsque l’avis du Conseil d’Etat est défavorable, la mesure prévue à l’alinéa précédent ne peut être prise que par décret en conseil des ministres’. Art 25 of the French Civil Code provides that ‘l’individu qui a acquis la qualité de Français peut, par décret pris après avis conforme du Conseil d’Etat, être déchu de la nationalité française, sauf si la déchéance a pour résultat de le rendre apatride: 1° S’il est condamné pour un acte qualifié de crime ou délit constituant une atteinte aux intérêts fondamentaux de la Nation ou pour un crime ou un délit constituant un acte de terrorisme; 2° S’il est condamné pour un acte qualifié de crime ou délit prévu et réprimé par le chapitre II du titre III du livre IV du code pénal; 3° S’il est condamné pour s’être soustrait aux obligations résultant pour lui du code du service national; 4° S’il s’est livré au profit d’un Etat étranger à des actes incompatibles avec la qualité de Français et préjudiciables aux intérêts de la France.’

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serve in a foreign army or public service. This clause specifically deals with publicly employed individuals, not those engaged by security companies. It is interesting to note that this article removes one of the six criteria used to define a mercenary (namely as someone who is not a member of the armed forces of a party to the conflict), since the French state can require a French citizen to leave the armed forces of another state. However, the specific French legislation is contained in Articles 436-1 to 436-5, introduced into the Criminal Code by the 2003 law. Section 436 of the Criminal Code was introduced following the adoption of the 2003 law prohibiting ‘active mercenary activity’. This law, adopted six years after the beginning of discussions, is a criminal law repressing ‘mercenary activities’ committed by either French nationals or residents in France both within the French territory and abroad. This law incorporates the legal definition of ‘mercenary’ into the French Criminal Code according to the qualification of mercenary given in the first Additional Protocol of 8 June 1977 to the Geneva Conventions.53 This law partly filled a void in the French legislation with important measures outlined below.54 The prohibition of individual ‘active mercenary’ activity: Article 436-1-1 refers to any person who takes (or tries to take) a direct part in hostilities in order to obtain a personal advantage or a payment. This provision of Article 436-1 thus represses the traditional mercenary activity, but also the attempt to commit an infringement, in accordance with Article 121-4-2 of the Criminal Code, which imposes, in criminal matters only, a specific legislative measure to punish the attempt. Article 436-1-2 punishes the involvement in a concerted violent act designed to overthrow institutions or to attack the territorial integrity of a state. This idea of consultation refers more to the assumption of a takeover, carried out from the interior or outside of the territory, than to mercenaries’activities in the primary meaning of the term.

53 Art 47 defines Mercenaries as follows: ‘1. A mercenary shall not have the right to be a combatant or a prisoner of war. 2. A mercenary is any person who: (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) is not a member of the armed forces of a Party to the conflict; and (f) has not been sent by a state which is not a Party to the conflict on official duty as a member of its armed forces.’ 54 Those activities were beforehand mainly prosecuted on the base of: Arts 412-7 and 413-1 of the Criminal Code regarding criminal conspiracy; Art 432-13 regarding military staff; and Arts 23-8 and 25 of the Civil Code, which can lead to the loss of French nationality for the mercenaries.

France 205 The prohibition of the act of recruiting, employing, financing, equipping or providing military training to a person described in Article 436-1 (Article 436-2): interestingly, this article is geared towards companies or structures considered as groups; it does not relate to the individual who committed an infringement but to the organisers (corporate body or natural person), who would not directly participate in the conflict but would be involved in the organisational level. Prosecution of acts committed abroad: Article 436-3 is a key rule extending the competences of French jurisdictions when the crimes are committed abroad.55 French criminal courts are thus also competent to prosecute (i) crimes and offences committed by a French National abroad (or someone who resides within the French territory) and (ii) crime and offences committed abroad to the detriment of a French National.56 Public prosecution can take place even if no complaint has been filed. As the Senate’s Foreign Affairs Committee Rapporteur Michel Pelchat commented prior to the adoption of the law, ‘this project remains limited in its objectives. It is not intended to cover all private sector activities, be they undertaken by individuals or specialist operators, in the military domain’.57

55 See Art 113-6 of the French Criminal Code: ‘La loi pénale française est applicable à tout crime commis par un Français hors du territoire de la République. Elle est applicable aux délits commis par des Français hors du territoire de la République si les faits sont punis par la législation du pays où ils ont été commis. Il est fait application du présent article lors même que le prévenu aurait acquis la nationalité française postérieurement au fait qui lui est imputé.’ Art 113-8 states: ‘sans préjudice de l’application des articles 113-6 à 113-8, la loi pénale française est également applicable à tout crime ou à tout délit puni d’au moins cinq ans d’emprisonnement commis hors du territoire de la République par un étranger dont l’extradition a été refusée à l’Etat requérant par les autorités françaises aux motifs, soit que le fait à raison duquel l’extradition avait été demandée est puni d’une peine ou d’une mesure de sûreté contraire à l’ordre public français, soit que la personne réclamée aurait été jugée dans ledit Etat par un tribunal n’assurant pas les garanties fondamentales de procédure et de protection des droits de la défense, soit que le fait considéré revêt le caractère d’infraction politique. La poursuite des infractions mentionnées au premier alinéa ne peut être exercée qu’à la requête du ministère public. Elle doit être précédée d’une dénonciation officielle, transmise par le ministre de la justice, de l’autorité du pays où le fait a été commis et qui avait requis l’extradition.’ 56 Art 113-7 of the French Criminal Code provides that: ‘la loi pénale française est applicable à tout crime, ainsi qu’à tout délit puni d’emprisonnement, commis par un Français ou par un étranger hors du territoire de la République lorsque la victime est de nationalité française au moment de l’infraction’. 57 M Pelchat, Projet de loi relatif à la répression de l’activité mercenaire, Sénat, Compte rendu de la séance de février 2003, 4.

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(ii) The Limits of the 2003 Law Prohibiting Mercenary Activities: A Restricted Legal Scope The legal scope of the 2003 law is restricted to specific categories of persons and specific activities. Given the cumulative nature of the six criteria defining a mercenary, the French law is not very effective: it is difficult to apply the six criteria at the same time, to the same person. A wide category of persons are excluded (such as logisticians, technicians or, worse, people/companies employed by a regular legal army). Though a somewhat broad reading of Article 436-2 could lead to incriminating PMCs, there is no legal definition of PMCs in France. The definition contained in Article 436-1 suffers from the same setbacks as international treaties. The criterion of the desire for ‘private gain’ and of ‘material compensation substantially in excess of that promised or paid to combatants’, for instance, can be easily avoided. This criterion illustrates the difficulty of establishing proof of this.58 For political and operational reasons, the French government removed the word ‘official’ after the word ‘mission’ (second and third subparagraphs of Article 436-1 of the Criminal Code).59 As a result, people benefiting from the state protection will not be prosecuted. Article 486-1 also suppresses the reference made by Article 47 of the 1977 Protocol to the fact that a person who is ‘a resident of a territory controlled by a Party to the conflict’ cannot be considered as a mercenary. For the French deputy M Joulaud, it can be explained by the purpose of this law, which is only to prohibit mercenary activities of French residents in foreign states.60 By not mentioning the quality of resident, Article 436-1 prevents the suspected persons from submitting the fact that they normally live in a state where a conflict breaks out to justify their will,

58 T Garcia, ‘La loi du 14 avril 2003 relative à la répression de l’activité de mercenaire’ (2003) 107 Revue générale de droit international public 677, 681. 59 Art 436-1 (Inserted by Law No 2003-340 of 14 April 2003) provides that: ‘Est puni de cinq ans d’emprisonnement et de 75.000 d’amende le fait: 1° Par toute personne, spécialement recrutée pour combattre dans un conflit armé et qui n’est ni ressortissante d’un Etat partie audit conflit armé, ni membre des forces armées de cet Etat, ni n’a été envoyée en mission par un Etat autre que l’un de ceux parties au conflit en tant que membre des forces armées dudit Etat, de prendre ou tenter de prendre une part directe aux hostilités en vue d’obtenir un avantage personnel ou une rémunération nettement supérieure à celle qui est payée ou promise à des combattants ayant un rang et des fonctions analogues dans les forces armées de la partie pour laquelle elle doit combattre; 2° Par toute personne, spécialement recrutée pour prendre part à un acte concerté de violence visant à renverser les institutions ou porter atteinte à l’intégrité territoriale d’un Etat et qui n’est ni ressortissante de l’Etat contre lequel cet acte est dirigé, ni membre des forces armées dudit Etat, ni n’a été envoyée en mission par un Etat, de prendre ou tenter de prendre part à un tel acte en vue d’obtenir un avantage personnel ou une rémunération importants’. 60 M Joulaud, ‘Rapport fait au nom de la Commission de la défense nationale et des forces armées sur le projet de loi, adopté par la Sénat (No 607), relatif à la répression de l’activité mercenaire’, Assemblée nationale, No 671, 16.

France 207 on personal grounds, to fight without being a member of the armed forces of those States.61 As this is a criminal law, all activities that are not specifically prohibited by the law are de facto authorised. These include activities such as training and operational preparation. In addition, the constitutive elements of the crime are very close to the wording of Article 47 of the Additional Protocol I, but do not differentiate between the involvements in international or non-international armed conflicts. The 2003 law suffers from two other major weaknesses. First, the text does not refer to PSCs or PMCs.62 The position of the French government towards the regulation of PMCs remains ambiguous and unclear. For M Pelchat, the fact that there is no real debate on the intervention of private specialised societies can explain this gap. The former Defence Minister M Alliot-Marie considered that the most reprehensible manifestations of mercenary activities must be punished. At the same time, though, she clearly recognised that the government would not hinder any possibility of strengthening the state’s security.63 While being well aware of the possible threats caused by mercenaries’ activities or non-regulated private security business (and also by the involvement of PMCs/PSCs in mercenary activities), it shows that the French state does not disregard the use of private security companies to ensure national security. Secondly, Article 436-1 does not take into account indirect participation in an armed conflict. Under this article, the mercenary is defined as taking a direct part in a conflict, unlike in the 1989 Convention, which does not use direct participation as a criterion defining a mercenary. This ‘omission’ can be explained by the French government’s concern that people being sent as experts, technical or military advisers for foreign governments could be considered as mercenaries—although the main international or national texts agree that ‘any person who is sent by a state which is not a Party to the conflict on official duty as member of its armed forces’ shall not be considered as a mercenary. Furthermore, the 2003 law does not mention the word ‘official’, but considers that a mission is official as soon as it has been decided by the state. Even if the person is not a member of the army, the criterion of direct participation in a conflict or of private gain could be fulfilled with difficulty. For M Alliot-Marie, the fact that that French military personnel or secret agents often act without the public authorisation of the state is the main reason behind this omission.64 This gap could, however, have a negative impact 61

Garcia, above n 58, 681. M Pelchat, ‘Rapport au nom de la commission des affaires étrangères de la défense, et des formes armées sur le projet de loi relatif à la répression de l’activité de mercenariat’, Sénat, No 142, session de 2002–03, 19. 63 See www.senat.fr/seances/s200302/s.200030206/s200030206004.html, 2. 64 ibid, 9. 62

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for individuals sent by France in foreign countries, since they could be considered mercenaries for participating indirectly in an armed conflict. T Garcia highlights another point that could explain the absence of reference to the indirect participation in an armed conflict: the risk for industrials linked to arming. Being, according to Garcia, ‘involved in the mercenary activities chain, [they] are for France a foreign policy tool in general and of armament policy in particular. Their number and their role, especially in African States’, is indicative of their importance.65 The danger, in this situation, is for a technician or an advisor working for such a company to be considered as a mercenary. Such a qualification would involve a company’s representative or state’s official responsibility if it is established that the company employing him is under direct or indirect control of the government (as Defense Consul International (DCI), for instance). In spite of the above-mentioned weaknesses, France is considered— with the 2003 law—as one of the states having the most advanced and rigorous legislation against mercenary activities.66 The 2003 law is regarded as a more efficient tool than some international texts, especially the 1989 Convention. The 2003 law talks about ‘remuneration’ in relation to private gain, whereas the 1989 Convention (and the Article 47 of 1977 Protocol) requires ‘material’ remuneration. In addition, according to Article 1-b of the 1989 Convention, a mercenary is a person motivated by ‘the desire for a private gain and, in fact, is promised’, while Article 436-1 states that a person must be motivated by the ‘the desire for private gain or remuneration substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party’. The French text does not require the addition of the two conditions (it does not matter if there is none promised in fact), so can be easier to enforce, at least on this particular point. The 2003 law has extended, ratione loci, the repression. Article 436-3 departs from the principle of territoriality by establishing unconditional application of French law to the facts occurring abroad and by extending the territorial competence of the French jurisdiction. However, the effectiveness of this article can be severely reduced by the implementation of foreign legislation, even if the conflicts of competence that would occur could be resolved by diplomatic negotiations. This last point shows the possible difficulties in enforcing the 2003 law.

65

Garcia, above n 58, 684. See also Joulaud, above n 60, 12. See P Quilès, ‘Compte rendu analytique officiel de la session ordinaire de l’Assemblée nationale de 2002–2003’, 76ème jour de séance, 185ème séance, 1ère séance du jeudi 3 avril 2003, 7. 66

France 209 (iii) Two Examples of the Difficulties in Enforcing the 2003 Law on the Prohibition of Mercenary Activities As outlined below, few individuals have been prosecuted for alleged mercenary activities to date, and only one case has been judged based on the 2003 Law. Three main reasons explain the difficulties in enforcing such a law: the international nature of mercenary activities, the political implications and the difficulty to exercise control over the activities of PMSCs. The Coulibaly Case A group of 13 persons were arrested in France on 23 August 2003 for fomenting a coup against the President of Ivory Coast, Laurent Gbagbo. The defendants were prosecuted under the anti-mercenary law and were also incriminated with the offence of ‘criminal association in relation to a terrorist enterprise’. No precedent existed to guide the court, which was further confused by blurred parliamentary debates. The main difficulty, though, related to the ‘preventive’ nature of the arrests, which were made by the French police while the ‘conspirators’ were about to leave for Ivory Coast. It was therefore difficult to determine whether the operation was at the preparatory stage—which would exclude pursuits—or already at the execution stage. The leader of the 13-member team, Ibrahim Coulibaly, was condemned by Contumacy to a four-year custodial prison sentence. He was found guilty of financing ‘the phase of recruitment and part of the planned operation’.67 Seven defendants were condemned and received sentences ranging from a 10-month suspended sentence up to 30-month custodial sentences for the preparation or running of a ‘joint action of violence aiming at overthrowing institutions and undermining a State territorial integrity’.68 The five other defendants (former legionaries) were discharged of the offence of mercenary activities. Ibrahim Coulibaly was recently killed in the Ivory Coast, while fighting on the behalf of Alassane Ouattara. The reasons for and conditions of his death remain unclear.69 The Bob Denard Case Famous French mercenary Robert Denard was condemned on appeal on 67

See the judgment of the 16th Criminal Court Chamber of Paris, 4 June 2008. The maximum punishment for this offence according to Arts 436-1 and 436-2 of the Criminal Code is a 5–7 year prison sentence. 69 See D Samson, ‘Ibrahim Coulibaly: parcours et mort d’un putschiste professionnel’, RFI, 28 April 2011, available at www.rfi.fr/afrique/20110428- ibrahim-coulibaly parcoursmort-putschiste-professionnel. 68

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6 July 2007 by the Paris Appeals Court to a 4-year suspended prison sentence, including a 1-year custodial sentence and a fine of €100,000 for a 1995 foiled coup in Comoros.70 Twenty-six other defendants, Denard’s accomplices, were prosecuted for ‘criminal association in preparation of a crime’. They received suspended sentences varying from four months to three years. No appeal was made following their condemnation in first instance. The 2003 law against mercenary activities was not applicable in 1995; Denard and his accomplices were convicted, among other charges, for criminal conspiracy. While French Special Forces had arrested the author of the coup, this trial illustrates the difficulty of controlling mercenary activities and the danger for the state in allowing such activities to remain uncontrolled. It appears, indeed, that if ‘la Cour est convaincue de ce que la France a été avertie du projet de Robert Denard, [toutefois], aucun élément de ce dossier ne permet d’avoir la certitude sur la caution du gouvernement français, ou de ses services, dans cette affaire’.

I V. T H E G OV ERN MEN T’S P OSITION ON T H E S TATUS OF P SC S AN D P MC S

A. Between Denial and Need: An Ambivalent Position The French state posture is actually directed more against the prohibition of mercenarism rather than towards PMCs. The 2008 White Paper on defence and national security defines PMCs as ‘un organisme civil, privé, impliqué dans le cadre d’opérations militaires dans la fourniture d’aide, de conseil et d’appui militaire, et offrant des prestations traditionnellement assurées par les forces armées nationales’.71 This leaves the possibility for a wide range of activities to be outsourced, including strategic and operational tasks. The French government has increasingly included the private sector in the provision of security services by outsourcing security and military-related activities. This outsourcing demonstrates the state’s willingness to transfer some activities tht have traditionally been part of its sovereign functions, while also indicating that no full privatisation of 70 The prosecution contended that Denard was ineligible for a suspended sentence for his 1995 failed effort because he had already received a suspended prison term two years earlier—for another coup attempt, in the West African country of Benin. Indeed, under French Law (Art 132-30 of the Criminal Code), suspended sentences serve as a warning that condemn convicts to jail time without actually requiring them to serve it. Convicts with suspended sentences who commit a second crime within five years of the initial sentence are no longer eligible for a suspension. When tried, they must either be acquitted or sent to prison. 71 Défense et Sécurité nationale: le Livre blanc (Paris, La documentation française, 2008).

France 211 these activities is planned for the time being. Clearly, both the French government and military personnel are still reluctant to use contractors for missions directly linked to combat. It is widely believed in France that governments (from the left and right) have used providers of security or military services to serve the state’s security and foreign policy interests. For instance, it is acknowledged that Bob Denard was able to provide the Biafran army with planes, weapons and combatants during the Biafran war in 1968—without interference from the External Documentation and Counter-Espionage Service (the secret intelligence and counter intelligence service). Roger Faulques, ‘the Katanga mercenary’, also allegedly received funds from the Elysee’s General Secretary to African Affairs, Jacques Foccart, to recruit mercenaries to fight with the Biafrans against the Nigerian army. This involvement of various mercenaries was apparently part of the answer of the French government to the British-supported attempt to rescue the oil-producing portion of Nigeria from French influence.72 More recently, Franck Hugo, a former legionnaire active who participated in the 1995 foiled coup organised by Denard in Comores, is believed to have negotiated, with the guidelines of DGSE in Baghdad, the liberation of Christian Chesnot and Georges Malbrunot, two journalists taken hostage in Iraq.73 In addition, in the global economic competition, PSCs and PMCs represent national assets for the collection and protection of information for private-held companies and indirectly for the state. While no regulation has been passed to adapt the regulatory framework to the specificities of private security and military services, the state can nevertheless use other mechanisms, such as social networks, to monitor the private sector. The market penetration by former public officers facilitates connections between the public and private sector. By the very nature of their activities, PSCs and PMCs naturally fall under the radar of the intelligence services, which covet on-the-ground information. The dialogue which naturally takes place between the state security apparel and the companies offering security/military services for multinationals and NGOs operating in risk-prone areas or countries of special interest and the social ties bonding these two to a certain extent constitute an informal regulation mechanism. This mechanism greatly depends on human relationships and is therefore particularly challenging in three contexts. The first concerns French nationals who work for a non-French company or who have established their own company overseas, especially when it is an offshore jurisdiction. The second concerns the ‘penetration’ of the French security market by 72 See GS Thomas, Mercenary Troops in Modern Africa (London, Westview Press, 1985) 33–45. 73 Munier, above n 11.

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companies incorporated abroad. The third situation relates to the PSC/ PMCs employed by French companies for their overseas operations.

B. The ‘Etatist Model’: Illustration Through the Outsourcing Policy The Ministry of Defence’s outsourcing doctrine is based on a 2000 ministerial directive which defines outsourcing as ‘an old management mode which consists, for the administration, in entrusting an external partner with a function, an activity, or a service which was hitherto provided by the State’. The main policy limitation on government outsourcing lies with the principle that ‘regalian’ activities (such as police or defence power) can neither be outsourced nor transferred; these are not, however, listed. The Constitutional Council considered that Article 6 of Law No 2003-591 of 2 July 2003—authorising the government to ‘simplify’ law—could not be read as allowing the transfer of the conduct of a sovereignty mission to a private person.74 The French government has repeatedly made it clear it would not subcontract or outsource strategic operational tasks to PMCs, especially in a conflict situation. PMCs’ activities during stabilisation phases continue to be considered as an infringement to the principle of the state monopoly on armed force. In addition, they are considered as causing a dangerous blur in the distinctions between combatants/participants. This opinion has been formalised in a short paragraph underlining the privatisation of armed violence in the white paper on defence and national security.75 The absence of a doctrine within the military High Command further limits the use of outsourcing. Outsourcing involving private actors is therefore still limited in France to logistic support, including mainly food supply, health and premises maintenance. The Capacités Additionelles par l’Externalisation du Soutien des Forces Françaises programme (2007–10) was specifically designed to experiment with the outsourcing of various non-military functions, including the management of military camps (Chad, 74 Decision No 2003-473 DC of 26 June 2003, Loi autorisant le Gouvernement à simplifier le droit, Recueil 382. 75 Livre blanc, above n 71, 28: ‘The privatization of armed violence is developing. Parallel to the generalization of the militia phenomenon in the most fragile States, some private military companies are created outside or beside regular forces. These companies provide companies present in unstable areas (as in Africa) with security. But they also play an increasingly obvious direct role in the stabilization phases that follow international military interventions. This evolution goes against the legitimacy principle of the official monopoly on armed force. The uniformed soldier is not any more immediately easily assimilated with a combatant acting within a multinational framework. The blurring of the identity of forces using an international mandate is thus to be added to the confusion resulting from the militia proliferation.’

France 213 Kosovo).76 The ‘reversibility and transferability’ principles apply to outsourcing; this implies the preservation of a minimal competence with a view to retaking the outsourced activity if needed, as well as arrangements to prevent any dependence on a contractor.77 Owing to the French conception of sovereignty, outsourcing is very limited outside the French territory. The annexed report to the 2003–08 military programming law plans the pursuit and strengthening of the outsourcing policy; it mentions that the armed forces can reduce the weight of tasks which are not of an operational nature or the non-essential tasks in times of crisis, by contracting with public or private persons. For operations, they can also resort to externalization of capacities they do not have or in a limited way—within the framework of the installation, the support and the disengagement of the forces.

The annexed report goes further by promoting the notion of alternative financing solutions within public–private partnerships. These solutions could ‘consist in carrying out experiments in some significant fields such as armament programs, real estate transactions, or purchase of services or even of capacities’.78

C. The Ongoing Political Debate Prompted by the US army’s extensive outsourcing in Iraq, the political debate on outsourcing, PSCs and PMCs is still in progress in France.79 An evolution is observable, as several legal documents and political speeches have officially valued the important role played by PSCs in domestic security.80 Companies dealing with surveillance, cash transportation or the protection of people in France are now recognised by law as partners of the state in the elaboration of a security strategy; their participation in this mission is submitted to obligations and checks. 76 For a complete list of these non-military functions, see F Boulot, Mercenaires et sociétés militaires privées: l’Histoire est un éternel recommencement. Analyse juridique et propositions quant à l’externalisation dans l’armée française (Publibook, Paris, 2010) 77. 77 See Parliament Information Report No 3595, 12 February 2002, on the outsourcing of some tasks of the Ministry of Defence, 36–45. 78 The Orientation and Planning Law for Homeland Security of 22 August 2002 had already introduced the possibility for the Ministry for Defence to resort to such innovative solutions in real estate transactions (Art 3, I). 79 A working group has been launched in 2004 attached to the Army General Staff to learn from the American experience of outsourcing which does not only deal with support missions but also certain tasks traditionally ensured by the Special Forces (bodyguards, transport of personalities in danger zone for ex.). cf P Leymarie, ‘Défenses Européennes en voie d’externalisation’ (November 2004) Le Monde Diplomatique 28. 80 Law No 95-73 of 21 January 1995 ‘d’orientation et de programmation pour la sécurité intérieure’. During the Villepinte Colloque held in 1997, both the Prime Minister and the Interior Minister recognised that PSCs as co-producers of homeland security.

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So far, this recognition does not apply to PSCs and PMCs operating abroad. French authorities—which have not yet faced the management of a conflict situation requiring assistance from these companies—appear to be reluctant to take a stand on PMCs because it would imply an acknowledgement of their role. Nothing of substance has changed since the 2003 law prohibiting mercenary activity. After having ignored these companies for a long time and then tolerating them, French authorities seem now to have accepted their existence. No doubt it will take time before they achieve a legal recognition and status. The debate on PMCs in France is closely linked to the outsourcing issue. A number of initiatives taken over the past five years nevertheless indicate that the government and the military, as well as the academic and business communities, are increasingly interested in the subject of PSCs and PMCs. In 2008, the Ministry of Defence commissioned a study to the Delegation for Strategic Affairs to assess the possibility of outsourcing some logistic functions to the private sector, including combatant support.81 In March 2010, a research seminar focusing on the challenges faced by the military forces in relation to the privatisation of the military action was organised by several military-owned research centres.82 The Secrétariat Général de la Défense et de la Sécurité Nationale (SGDSN), which has also been working on the subject over the past year, held a restricted meeting with government officers, security professionals and university experts in September 2010. According to Intelligence Online, the SGDSN is seeking to promote the development of PSCs—including internationally—and therefore studying the possibilities of outsourcing some functions to the private sector, including the security of diplomatic missions in high-risk countries (currently ensured by the GIGN) or the operational maintenance of some military equipment.

81

Intelligence Online, 28 August–10 September 2008. The seminar on the topic ‘Les forces armées face au défi de la privatisation de l’action militaire’ was organised by le Centre de recherche des écoles de Saint Cyr Coëtquidan(CREC), le Centre de Doctrine et d’Emploi des Forces (CDEF) et le Collège de l’Enseignement Supérieur de l’armée de Terre (CESAT). 82

10 Germany RALF EVERTZ*

I . I NTRODUC TION

I

N GERMANY, THERE is no specific legislation concerning the activities of private military or security services (PSCs/PMCs) abroad. Furthermore, as far as can be ascertained from open sources, whilst there is a well-established security service industry, there does not seem to be a developed private military service available in Germany. It is noteworthy, however, that there are several resident private companies who qualify as private security companies, offering protection of persons, buildings, events or the transportation of goods. This chapter provides a general overview of the domestic military and security sector and its regulatory framework in Germany. To this end, the chapter will sketch out the actual situation in Germany, summarise the legal status of pertinent companies (PSCs) and present the position of the German government on these matters. The chapter will mainly focus on the legal situation of German companies offering security services and operating (on a contractual basis) in conflict areas abroad.

I I . G E R MAN P RIVATE MILITARY AND S E CURITY C OMPAN IES

A. Authorisation to Operate a Security or Surveillance Service Business While the right to pursue commercial activities is constitutionally protected,1 the operation of a security or surveillance service business, * The author is grateful to Prof Dr Thilo Marauhn, MPhil for his comments. The chapter was lastly updated on 08 March 2011. 1 See 1949 German Basic Law (Grundgesetz), available at www.gesetze-im-internet.de/ englisch_gg (accessed on 8 March 2011), Arts 12, 14 and 2 (1); for further references, see

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according to pertinent German federal legislation,2 necessitates prior authorisation by a governmental authority. In light of the constitutional framework for the federal distribution of administrative powers,3 each Land (state/province) can decide by itself which organ should be competent for granting a licence.4 It is possible to distinguish the activities of private security services as to protection, transport, training, back-up services or administration.5 In order to obtain the licence, the applicant and each employee must, among other things, prove their essential legal skills in the field of security law by passing a test organised by the German Chamber of Commerce and Industry.6 Furthermore, the applicant must prove his or her reliability, a term which has been fleshed out in administrative practice and court jurisprudence. In the end, the granting of the licence is subject to administrative discretion. Such discretion must be exercised in accordance with the constitutionally guaranteed Rechtsstaatsprinzip (rule of law principle).7 The legislative framework does not require employees of PSCs to be armed. However, most of the employees are in fact trained in close combat. The right to carry a weapon is regulated by the German Weapons Act.8 Furthermore, there are provisions for the use of handcuffs and for the possession of dogs trained for protective (security) services.9 However, all these elements of the legislative framework are of general application, rather than specifically designed for or exclusively addressed to PSC personnel, hence they are relevant for all persons subject to German legislation.

M Bothe and T Marauhn, ‘The Arms Trade: Comparative Aspects of Law’ (1993) 26 Revue Belge de Droit International 20. 2 1999 German Industrial Code (Gewerbeordnung), available at www.bundesrecht.juris. de/gewo accessed on 08 March 2011, s 34a and German Decree on Security Services (Bewachungsverordnung), available at www.bundesrecht.juris.de/bewachv_1996 (accessed on 8 March 2011), s 9 2003 German Decree on Security Services. 3 1949 German Basic Law, above n 1, Arts 83 ff. 4 1999 German Industrial Code, above n 2, s 155. 5 U Schönleitner, ‘Gewerbliche Grundlagen des Sicherheitsgewerbes’ in R Stober and H Olschok (eds), Handbuch des Sicherheitsgewerberechts (München, CH Beck, 2004) s E.I, para 12. 6 1999 German Industrial Code, above n 2, s 34a; 2003 German Decree on Security Services, above n 2, s 3(2). For an account of the academic debate, see R Stober, ‘Zur Qualifizierung der privaten Sicherheitsdienste’ (2002) 48 Gewerbearchiv 129. 7 On administrative discretion in German law, see M Nierhaus, ‘Administrative Law’ in M Reimann and J Zekoll (eds), Introduction to German Law (München, CH Beck, 2005) 96–97. 8 2002 German Weapons Act (Waffengesetz), available at gesetze-im-internet.de/ englisch_waffg (accessed on 8 March 2011). 9 In Hessen, eg the keeping of a dangerous dog is not allowed without the authorisation of the competent authority: 2010 Hessian Decree on Dog Keeping (Hessische Hundeverordnung), available at tinyurl.com/6d34puw (accessed on 8 March 2011), s 1(3).

Germany 217 B. German PSCs/PMCs Operations Abroad While there is no open source evidence on German military companies, German security companies do operate in conflict areas abroad. Among others, the use and deployment of PSCs limits the financial burden resulting from German police and military operations abroad, thus enabling the German Armed Forces10 to take up responsibilities in more conflict areas than before.11 The companies primarily provide back-up services for the German Armed Forces. They mostly operate in the field of logistics and protection of persons and buildings.12 It is noteworthy that German PSCs also provide back-up services for foreign armed forces; for example, they provided waste disposal and laundry services in some cases.13 The German government does not have any data about employees involved in such activities.14 As far as can be concluded from open sources, German companies do not provide military services abroad. Only two cases of prospective military services have become public and have raised political discussion. In 2006, the German PSC BDB Protection was suspected to be involved in the planning of a security training of Libyan police officers and the president’s personal guard.15 The PSC has been charged with the employment of retired and active German police officers who worked for the Special Forces. A parliamentary inquiry board investigation came to the conclusion that German authorities were neither informed nor involved in the training.16 Furthermore, one should note that it seems that the German PSC was not able to complete the training due to insufficient equipment. An official request by BDB Protection for the import of weapons was denied by

10 For example, the Bundeswehr has employed a PSC in Afghanistan, as the company’s references can prove; see www.ecolog-international.com/de/references.aspx (accessed on 8 March 2011). 11 Currently the German Armed Forces are involved in 12 operations abroad: see tinyurl. com/5r34qsk (accessed on 8 March 2011); H Krieger, ‘Der privatisierte Krieg: Private Militärunternehmen im bewaffneten Konflikt’ (2006) 44 Archiv des Völkerrechts 159, 163. 12 Answer by the German Government to Parliament, 24 June 2005, Bundestag printed paper 15/5824, preliminary remark; Answer by the German Government to Parliament, 26 April 2006, Bundestag printed paper 16/1296, Answer No 23. 13 For example, the German company Ecolog International Service Solutions provided services for German, British and American Armed Forces in Iraq and Afghanistan: www. ecolog-international.com/references.aspx (accessed on 8 March 2011). 14 Bundestag printed paper 16/1296, above n 12, Answer No 43; Answer by the German Government to an oral question of a representative of the Parliament, 10 November 2010; www.stroebele-online.de/bundestag/anfragen/4273628.html (accessed on 8 March 2011). 15 Summary by M Wehner, ‘Bittbriefe aus Tripolis’, Frankfurter Allgemeine Zeitung, 13 April 2008. 16 The files of the parliamentary inquiry board are secret and therefore not accessible for public. See generally www.sueddeutsche.de/politik/ausbildung-libyscher-sicherheitskraefte-kontrollgremium-entlastet-bnd-1.212577 (accessed on 8 March 2011).

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the Federal Office of Economics and Export Control.17 The training was completed by a French PSC. Another case took place in June 2010, when it became public that the German PSC Asgaard was planning to send former German soldiers to Somalia.18 These soldiers were to train soldiers for Ahmad Abdinur Darman, who declared himself President of Somalia. Darman has never been recognised by the international community. This case raised political discussions about the activities of German PSCs abroad. In fact, by supporting Darman, Asgaard would have acted contrary to German foreign policy. German soldiers officially participate in the training of Somali soldiers within the European programme EUTM Somalia.19 The training of Darman’s soldiers by Germans could lead to a situation where German soldiers were attacked by Somali soldiers trained by Asgaard. The German government informed Asgaard that their training would violate the UN embargo and European law,20 and the training never took place. However, the regional public prosecution office accused the manager of Asgaard of the illegal recruitment of Germans for foreign military services after the police found incriminatory documents at the Asgaard headquarters.21 Thereupon Asgaard relocated its headquarters to Ireland. Currently the criminal procedure is pending.

I II. AP P LIC ABLE LAW

There are no specific provisions on private military or security services abroad. The applicable law must therefore be derived from generally applicable provisions. It is noteworthy that the situation is not vastly different with regard to domestic security services. Indeed, there is very little domestic law specifically addressing private security services.

A. Military Law/Law on Weapons To begin with, it is helpful to look at the provisions relevant for members of the German Armed Forces. Military law applies exclusively to persons 17

Wehner, above n 15. See generally S Bisanz, ‘Private Sicherheitsfirmen: Sicherheitspartner statt Söldner’ (2010) 3 Der Sicherheitsdienst 30. 19 EUTM Somalia was installed by the European Union Council Decision 2010/96/ CFSP, [2010] OJ L44/16. 20 Answer by the German Government to Parliament, 09 June 2010, Bundestag printed paper 17/2060, Answer No 10. 21 Press Release by the Public Prosecutor Office of Münster (Westphalia), 24 August 2010, available at www.sta-muenster.nrw.de/presse/Aktuelle_Pressemitteilungen/ Archiv/24_08_10.pdf (accessed on 8 March 2011). 18

Germany 219 who are formally members of the armed forces (soldiers), regardless of whether their service is voluntary or obligatory.22 Therefore, military law is not as such applicable to employees of PSCs/PMCs. However, it is a relevant point of reference in assessing the regulatory approach to PSCs/PMCs. (i) Military Law The members of the German Armed Forces are subject to military law. The German Act on the Legal Position of Soldiers establishes a system of allegiance and companionship between the members of the German Armed Forces. This entails, among other things, a hierarchic structure of the armed forces, an obligation to wear a uniform and certain limitations that may be imposed upon soldiers’ fundamental rights. The German Armed Forces are subject to democratic supervision and (civilian) political control. Democratic oversight is based on different pillars. First, the Federal Parliament determines whether or not Germany formally participates in an armed conflict.23 Secondly, the parliament decides on the budget of the armed forces. Thirdly, the German Constitution requires the establishment of a parliamentary Committee on Defence (Article 45a GG) and of a Parliamentary Commissioner for the armed forces (Article 45b GG). These two organs enjoy special rights and responsibilities with regard to the German Armed Forces and their soldiers. Members of PSCs/PMCs are not bound by military law. Their rights and responsibilities cannot be compared to the relatively strict regulatory framework applicable to soldiers. A very sensitive issue is that PMCs might evade parliamentary control. PSCs/PMCs and armed forces are not subject to the same regulatory framework. In the first place PSCs/ PMCs are subject to commercial and labour law.24

22 2005 German Act on the Legal Position of Soldiers (Soldatengesetz), available at bundesrecht.juris.de/sg (accessed on 8 March 2011), s 1(1). 23 Apart from the explicit provisions of the German Constitution on the consequences of an armed attack on Germany, the jurisprudence of the Federal Constitutional Court with regard to parliamentary approval for international activities of German armed forces has to be taken into account; cf, among others, HP Aust and M Vashakmadze, ‘Parliamentary Consent to the Use of German Armed Forces Abroad: The 2008 Decision of the Federal Constitutional Court in the AWACS/Turkey Case’ (2008) 9 German Law Journal 2223. 24 Krieger, above n 11, 180; U Petersohn, ‘Outsourcing the Big Stick: The Consequences of Using Private Military Companies’, Working Paper 2008-0129 (Weatherhead Center for International Affairs, Harvard University, 2008).

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(ii) Possessions of Arms The possession of arms is governed by the German Weapons Act (Waffengesetz).25 Generally, the right to produce, trade, transfer, possess or carry an arm is subject to a licensing regime. Individuals must prove their need for a licence before such a licence will be granted. Typical licencees are weapon sportsmen, arms collectors, huntsmen and security personnel. There are exemptions from the licensing requirement for personnel of the armed forces, police officers and some other public officers. Since PSC/PMC personnel are not formally integrated into the official armed forces, employees thereof are not exempt from the licence requirement enabling them to possess, carry or use a weapon. Indeed, the German Weapons Act includes a separate provision on PSCs. Section 28 stipulates: The need for security operators . . . to acquire, possess and carry guns shall be recognised if they can credibly demonstrate that security contracts are being or are to be performed which require guns in order to protect a person in danger . . . or an endangered property.26

Thus, a PSC must verify the need for possessing firearms by reference to a possible threat whilst accomplishing a mission. The employer must ensure that his employees carry their firearms whilst undertaking that particular type of mission only.27 (iii) Export of Arms The export of arms and war material is closely regulated by domestic law. Taken as a starting point, the German Constitution, as a rule, prohibits the export of war material; exports are only permissible by way of exception subject to the granting of a pertinent licence: ‘Weapons designed for warfare may be manufactured, transported, or marketed only with the permission of the Federal Government. Details shall be regulated by a federal law’ (Article 26 (2) Basic Law).28 This constitutional provision is implemented and detailed by the German War Weapons Control Act.29 The War Weapons Control Act prohibits all exports of war material, including weapons, parts of weapons and munitions. Any exception to this rule, ie any licence for the export of war material, is subject to gov25

2002 German Weapons Act, above n 8. ibid, s 28. 27 2003 German Decree on Security Services, above n 2, s 13(1). 28 For an overview of applicable legislation, see I Davis, The Regulation of Arms and Dual-use Exports: Germany, Sweden and the UK (Oxford, Oxford University Press, 2002) 155–56. 29 1990 German War Weapons Control Act (Kriegswaffenkontrollgesetz), available at bundesrecht.juris.de/krwaffkontrg (accessed on 8 March 2011). 26

Germany 221 ernmental authorisation, with guidelines being authorised by the federal government itself. No licence will be granted if war material is exported for non-governmental use.30 The export, import or transit of all other types of weapons not qualifying as war material is regulated by sections 29–32 of the German Weapons Act. According to these provisions, the export, import and transit depends on the prior consent of the state of importation, if this state is a Member State of the European Union (the so-called principle of double consent).31 Similarly, the importation of weapons to Germany depends on a governmental licence or the presentation of a European firearms pass.32 Exports to third states are subject to a more complex procedure.33 Finally, as far as dual-use items are concerned, the German Foreign Trade and Payments Act is applicable. It provides for various licence requirements, and the ordinance attached thereto is relevant in order to implement UN Security Council Resolutions imposing sanctions under Chapter VII of the UN Charter.34 Any violation of the licence requirements could be punished with up to five years imprisonment. (iv) Export of Military Services The export of military or security personnel or services is not expressly regulated. The decision to participate in an armed conflict is a shared governmental and parliamentary prerogative. This also means that any possible military or armed security operation of German PSCs/PMCs abroad will not have an immediate effect on the diplomatic or other political relations between Germany and the state concerned. Furthermore, according to the principles of state responsibility, acts of non-state entities, including private individuals, are generally not attributable to the state.35 On the other hand, the state’s inactivity in the case of national PSCs/PMCs’ operations in spite of the state’s capacity to prevent this military or security-relevant operation could trigger the state’s responsibility under international law.36 Soldiers serving in the German Armed Forces are not allowed to 30

Bundestag printed paper 15/5824, above n 12, Answer No 47. 2002 German Weapons Act, above n 8, ss 29–32. 32 For further information on the European Firearms Pass, see Council Directive 91/477/ EEC (18 June 1991) on the control of the acquisition and possession of weapons, [1991] OJ L256/51. 33 For further information, see 2002 German Weapons Act, above n 8, s 33; 2009 German Foreign Trade and Payments Act (Außenwirtschaftsgesetz), available at bundesrecht.juris. de/bundesrecht/awg (accessed on 8 March 2011), s 7. 34 The export can be limited because of international duties or to protect the peaceful cohabit of people: 2009 German Foreign Trade and Payment Act, above n 33, ss 5 and 7. 35 Krieger, above n 11, 172. 36 ibid, 174. 31

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work for PSCs/PMCs while on vacation. Furthermore, retired members of the German Armed Forces are not allowed to work for companies if this affects public (ie governmental) interests. Retired members of the German Armed Forces are subject to professional ethics, including nondisclosure.37 (v) Privatisation and German Armed Forces According to German constitutional law, the transfer of governmental responsibilities in the field of internal security is permissible to a certain although limited extent, whereas this is not the case with regard to external security.38 Therefore, PSCs/PMCs cannot perform governmental responsibilities abroad. The German government has made it clear that it will not task PSCs/PMCs with military missions (stricto sensu) in crisis areas abroad.39 However, as far as procurement of other activities than those of a strictly military character is concerned, the German government has transferred responsibilities to PSCs. Thus, the government has transferred non-security matters to private companies for German military operations abroad. This form of privatisation takes place in the sector of back-up services. However, the core competences (like fundamental servicing of military equipment) have not been and (at least according to governmental statements) cannot be transferred to private companies.40 By way of example: the maintenance of non-military materials was transferred to HIL GmbH,41 a private company in the field of logistics, servicing and repair. Altogether, private companies perform the following tasks for German Armed Forces abroad: logistic services (eg catering, electricity), provision of operating supply items, transport services, reconditioning services, construction works, disposal services, cleaning of clothes and vehicles, and telecommunication services.42 (vi) PSC Contracts and German Armed Forces Apart from the aforementioned non-security and non-military services, the German Armed Forces can conclude agreements with PSCs concerning the protection of military facilities. The Act on the Application of Direct Force and on the Use of Special Powers by German and Allied Armed

37 38 39 40 41 42

Bundestag printed paper 16/1296, Krieger, above n 11, 182. Bundestag printed paper 16/1296, Bundestag printed paper 15/5824, Further information is available at Bundestag printed paper 16/1296,

above n 12, Answer No 33. above n 12, Answer No 4. above n 12, Answer No 45. www.hilgmbh.de/de (accessed on 8 March 2011). above n 12, Answer No 25.

Germany 223 Forces and Civil Security Guards43 specifies the rights and duties of such non-governmental personnel. German diplomatic missions abroad have entered into contracts with security services for the protection of buildings and personnel. These contracts have mostly been concluded with local PSCs or international PSCs with local agencies.44

B. Corporate Law In Germany, businesses have to register with the German Commercial Register.45 According to the pertinent statutory provisions, this applies to every person engaging in a trade or a business (commercial or industrial). Therefore, it depends on the precise nature of the business whether there is a need to register. As a rule, PSCs/PMCs have to register with the local German Commercial Register.

C. Commercial and Civil Law The applicable law of contract and the applicable commercial law can be municipal or foreign law. In Germany, commercial law is part of the private law. The private law is governed by the principle of freedom of contract. Therefore, statutory provisions are only applicable insofar as the parties to a contract have not reached agreement or insofar as they are peremptory norms. (i) Choice of Law/Choice of Forum Whilst in principle this is a matter of agreement between the parties, in cases of dispute, a court will determine the applicable law for ‘international’ contracts concluded between a PSC/PMC and a governmental or other entity. The Introductory Act to the German Civil Code46 (EGBGB) includes provisions on the applicable law. Basically, the parties to a 43 1965 German Act on the Application of Direct Force and on the Use of Special Powers by German and Allied Armed Forces and Civil Security Guards (Gesetz über die Anwendung unmittelbaren Zwanges und die Ausübung besonderer Befugnisse durch Soldaten der Bundeswehr und verbündeter Streitkräfte sowie zivile Wachpersonen), available at bundesrecht.juris.de/uzwbwg (accessed on 8 March 2011). 44 170 of about 230 German diplomatic missions have concluded such contracts. Bundestag printed paper 15/5824, above n 12, Answer No 16. 45 1897 German Commercial Code (Handelsgesetzbuch), available at bundesrecht.juris. de/hgb (accessed on 8 March 2011), s 29. 46 1994 Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch), available at gesetze-im-internet.de/englisch_bgbeg (accessed on 8 March 2011).

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contract are free to choose which national law should be applicable (section 27 EGBGB). In the absence of a choice of law and in case of a dispute, courts will determine which law governs the contract. If so, section 28 EGBGB stipulates that the law most closely linked to the contract will be applicable. In the case of contractual disputes, courts will also determine the competent court (choice of forum). It is the German Code of Civil Procedure47 which deals with the courts’ competences. It is also possible that the parties to the contract choose the competent court (sections 38–40 of the German Code of Civil Procedure (ZPO)). If there has not been a choice, the competent court will normally coincide with the domicile (place of residence) of the respondent (sections 12–37 ZPO). The domicile of an individual will be his ordinary place of residence; the domicile of a legal person will be the statutory seat or registered office. (ii) Type of Contract Contracts in the field of private security services normally are service contracts. This type of contract is specifically addressed by sections 611–630 of the German Civil Code48 (BGB). In German law, this type of contract must be distinguished from contracts to produce work.49 In contracts to produce work (sometimes called contracts for work and services), the contracting party must bring about a particular result (obligation of result), while in service contracts the contracting party must perform services (obligation of conduct). Some security service contracts include obligations of conduct as well as obligations of results. They are considered mixed contracts. Examples for service contracts which only include obligations of result are contracts for the transport of valuables (especially currency) or for the search of persons or goods.50 (iii) Law of Contract The general principles of contract law are also applicable to contracts for security services. A contract is based on an agreement between the participating parties. When interpreting contracts, the principle of good faith must be observed. Unless properly fulfilled, German contract law allows termination of a 47 2005 German Code of Civil Procedure (Zivilprozessordnung), available at bundesrecht.juris.de/zpo (accessed on 8 March 2011). 48 2002 German Civil Code (Bürgerliches Gesetzbuch), available at gesetze-im-internet. de/englisch_bgb (accessed on 8 March 2011). 49 2002 German Civil Code, above n 48, ss 631–51. 50 W B Schünemann, ‘Vertragstypen im Sicherheitsgewerbe’ (2003) 24 Neue Juristische Wochenzeitschrift 1689, 1690.

Germany 225 contract either on the basis of individual contract clauses or for particular reasons, including a serious breach of contract. (iv) Duty of Notification At present, there is no obligation to notify the government of the conclusion of any contract on security (or even military) services. Notwithstanding a parliamentary motion to this end, the German government does not presently intend to change this.51 Any obligation to notify such contracts, according to the government, would constitute a disproportionate interference with entrepreneurial freedom.52 (v) Civil liability In Germany, a party to a contract can be held liable both for the breach of one of the (explicit or implicit) contractual obligations or for the violation of a third party’s interests. PSCs/PMCs will hence be held responsible for their activities, including those performed by their employees, and they will be obliged to compensate any violation of victims’ interest arising from unlawful conduct. In general, it is possible to modify or reduce the civil liability by a contract or if it is foreseen by law. However, it is not possible to release the contractor in advance for liability of intention.53 In order to ensure the enforceability of any pertinent claims, PSCs must be insured pursuant to German law.54 (vi) Civil Remedies It is possible to bring a charge against a German individual who has committed an offence outside Germany before a German civil court to claim for damages. This would be a case of private international law, which is regulated under section 40 EGBGB.55 According to this section, the German judge has to apply the law of the country where the tort was committed. The competence of the court depends on the domicile of the accused person.

51 52 53 54 55

Bundestag printed paper 15/5824, above n 12, Answer No 39. ibid, Answer No 38. 2002 German Civil Code, above n 48, s 276 (3). 2003 German Decree on Security Services, above n 2, s 6. 1994 Introductory Act to the German Civil Code, above n 46, s 40.

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D. Labour Law (i) Assignment of Personnel Since security service employees need special skills and conditions, each employee must prove his pertinent knowledge in the field of security law by passing a test arranged by the German Chamber of Commerce and Industry. In addition, the employee must seem to be reliable. In order to ensure such reliability, governmental authorities (in charge of licensing etc) normally require a ‘certificate of good conduct’ and will check whether the employee is a member of an unlawful association or unconstitutional political party.56 (ii) Labour Relations Employees of PSCs/PMCs are generally responsible to their company. Employees protecting properties of the German Armed Forces are subject to pertinent contractual obligations and—on that basis—must meet the same military guard duties as regular German soldiers.57 On the other hand, these employees are not subject to parliamentary control. Their labour relations are governed by contract law, not by administrative law.

E. Government Procurement Law (i) Outsourcing of Security Services Whilst the government’s responsibility for internal and external security for constitutional reasons cannot be outsourced as a whole, some activities in this field are performed by PSCs. However, these companies are under close scrutiny of the administration and there is even effective political control by the government.58 By way of example, outsourcing is implemented in air traffic control (eg control of aircraft in flight or inspection of luggage).59 Nevertheless, it is noteworthy that the parliamentary bill providing for fully privatised air traffic control was not signed by the former German Federal President Horst Köhler in 2006 because of serious doubts as to

56

2003 German Decree on Security Services, above n 2, s 9(2), no 1. Bundestag printed paper 15/5824, above n 12, Answer No 18. 58 ibid, Answer No 2. For an account of the academic debate, see F Hammer ‘Private Sicherheitsdienste, staatliches Gewaltmonopol, Rechtsstaatsprinzip und “schlanker Staat”‘ (2000) 15 Die öffentliche Verwaltung 613–21. 59 2005 German Law on Air Traffic Security (Luftsicherheitsgesetz), available at bundesrecht.juris.de/luftsig (accessed on 8 March 2011), ss 3 and 5. 57

Germany 227 the constitutionality of the bill.60 President Köhler doubted that there was a sufficient degree of administrative and governmental control. (ii) Limits of Lending and Outsourcing Every form of lending and outsourcing in the field of military or security services must keep in mind the constitutionally protected governmental monopoly on the legitimate use of force. The government cannot dispose of this monopoly as a whole. Therefore, core military tasks cannot be outsourced to private companies.61 According to the existing legal framework, as argued by the German government, PSCs/PMCs are not allowed to use force while on duty abroad.62

F. Criminal Law (i) The International Convention against the Recruitment, Use, Financing and Training of Mercenaries Germany has only signed but not ratified the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. The German government argues that this would necessitate a complex redrafting of much of the existing body of criminal law.63 In particular, the government perceives a risk that national implementation of the Convention will destabilise the well-balanced doctrinal elements of German criminal law; therefore the German government seeks to avoid such a reform. According to the German government’s position, the application of national and international criminal law and the establishment of the International Criminal Court (ICC) suffice to counteract the recruitment of mercenaries.64 (ii) Extradition to the International Criminal Court Germany ratified the ICC Statute in 2000. The German domestic criminal law was complemented with the Act to Introduce the Code of Crime

60 Press release by the Office of the Federal President, 24. October 2006, available at www.bundespraesident.de/dokumente/-,2.633675/%20Pressemitteilung/dokument.htm (accessed on 8 March 2011; S Hobe, ‘Privatization of German and Other European Air Navigation Service Providers and the Single European Sky Regulations’ (2007) 32 Air & Space Law 168. 61 Bundestag printed paper 15/5824, above n 12, Answer No 1.a. 62 ibid, Answer No1.b. 63 ibid, Answer No 7. 64 ibid, Answer No 8.

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against International Law to implement the ICC Statute.65 This legislation is applicable to all German citizens, including military personnel. The ratification resulted in a transformation of the German Basic Law. Article 16 of the German Basic Law was changed in December 2000 to enable the extradition of German citizens to the ICC.66 The procedure of extradition is expressly regulated by the Act on the Cooperation with the ICC.67 (iii) Criminal Responsibility German criminal law can also be applied if the criminal activity does not take place in Germany. Extraterritorial application of German criminal law, however, requires a link to Germany, particularly to German criminal law.68 Based on the personality principle, the easiest case is where the perpetrator is of German nationality. Therefore, a German employee of a PSC/PMC may be liable under German criminal law for criminal offences committed abroad. There are, however, other bases for the exercise of German criminal jurisdiction, including the passive personality principle, the protective principle and the universality principle. Apart from the establishment of German criminal jurisdiction, there are a number of subsidiary means to ensure that the exercise of criminal jurisdiction becomes a reality. Thus, Germany has concluded various international bi- and multilateral agreements promoting criminal prosecution for offences committed abroad. Furthermore, the Act on International Legal Assistance in Criminal Matters governs legal assistance in criminal matters, eg the extradition or the execution of non-German court decisions.69 The use of military courts to try employees of PSCs or PMCs does not meet the approval of the German government.70 The government argues that such employees cannot claim the status of combatant and therefore cannot be treated the same way. In conclusion, the regulations of the German Criminal Code are entirely applicable to members of PMCs and PSCs. At the time of writing, no 65 2002 German Act to Introduce the Code of Crime against International Law (Völkerstrafgesetzbuch), available at mpicc.de/shared/data/pdf/vstgbleng2.pdf (accessed on 8 March 2011). 66 1949 German Basic Law, above n 1, Art 16. 67 2002 German Act on the Cooperation with the ICC (Gesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof), available at bundesrecht.juris.de/istghg (accessed on 8 March 2011). 68 The applicability of German criminal law for misconducts committed abroad is regulated in 1998 German Criminal Code (Strafgesetzbuch), ss 5–7. 69 1994 German Act on the International Legal Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen), available at bundesrecht.juris.de/irg (accessed on 8 March 2011), ss 2 and 54. 70 Bundestag printed paper 15/5824, above n 12, Answer No 33.

Germany 229 specific German case law related to activities involving German PSCs or PMCs abroad or foreign PSCs or PMCs in Germany was available.

I V. S TAT E L I AB I L I T Y FOR P SC S’ MISSION S ABROAD

There is no specialised regulation concerning responsibility or liability for German PSCs’ missions abroad. On the other hand, the Federal High Court of Justice (Bundesgerichtshof) has determined the responsibility and liability of Bundeswehr activities in former Yugoslavia. The conclusions of this judgment can give hints on the principle of state liability for PSC missions abroad. The German Federal Army participated, and is still participating, in the NATO operation in Kosovo (KFOR). On 20 May 1999, a bridge near the Yugoslavian village Varvarin was destroyed by an aerial attack. Ten Yugoslavian civilians were killed and about 30 other persons were injured. Although the aircrafts’ nationality was not clear, the victims and their representatives claimed for damages against the German government.71 The court decided that there exists no possibility for private subjects to claim damages against the state on an international level. Only states can claim damages against other states in international public law by relying on the right of diplomatic protection.72 On the other hand, claims for damages based on state liability are generally possible.73 In the present case, the claim was rejected because of the lack of any connection between the aerial attack and the German officials or authorities.74 It is possible to draw some conclusions on governmental responsibility and liability for PSCs’ missions abroad where the PSC causes damage. The principle of diplomatic protection would only allow the state of the individual victim to claim damages against the state which is legally responsible for the PSC. In this case, the claim becomes that of the state. The PSC will not be directly involved in the ensuing procedure. Any claim for damages relying on the principle of state liability would most likely be rejected because of the absence of any connection between the governmental authorities and the PSCs. The liability of a state is engaged only if a governmental authority authorises a PSC mission abroad. Such a situation is currently not conceivable.

71 72 73 74

BGH file number III ZR 190/05 tinyurl.com/3vvkv9k (accessed on 8 March 2011). ibid, para 6. ibid, para 20. ibid, paras 20 and 23.

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A. The German Government’s Position on the Status of PMCs/PSCs The German government has answered several official questions and has given single comments on the situation of PSCs/PMCs in Germany in recent years. It has twice declared expressly its policy on the status on PMCs/PSCs in parliament. The government replied to two parliamentary interpellations concerning the status of PSCs/PMCs.75 These documents are still the most comprehensive and significant official documents dealing with the privatisation of security issues. The German government made it clear that—according to its views— military activities within as well as outside German territory cannot be transferred to private companies.76 However, security matters can be delegated to civilian actors subject to close supervision and scrutiny of the competent governmental body (organ) which has authorised such delegation.77 Since it is not possible generally to distinguish military from security operations, decisions have to be made on a case-by-case basis.78 According to the German government, employees of PSCs/PMCs are and remain civilians. They do not enjoy the rights of combatants or incorporated members of armed forces.79 In particular, captured employees of PSCs/PMCs cannot claim prisoners of war status, but they are entitled to be treated and protected the same way as civilians.80 It is against this background that the German Armed Forces are not planning to involve PSCs/PMCs’ employees in armed missions abroad.81 While military activities remain the domain of the government, PSC/ PMC employees who act under government procurement law discharge official governmental duties. They act as public authority and exercise jurisdiction.82 German military forces do not have special rules of conduct as far as their relationship with PSCs/PMCs employees is concerned. Thus, the government argues that the general rules of conduct for contracting third parties in crisis areas abroad will be applied to such persons.83 According to the German government, existing rules of public inter75

Bundestag printed paper 15/5824 and Bundestag printed paper 16/1296, above n 12. Bundestag printed paper 15/5824, ibid, Answer No 1.a. 77 This is a special form of administrative delegation which is characterised as “Beleihung” in German administrative law. 78 Bundestag printed paper 15/5824, above n 12, Answer No 15. 79 ibid, Answer No 20.a. 80 ibid, Answer Nos 25 and 52. 81 ibid, Answer No 20.b. 82 ibid, Answer No 4. 83 ibid, Answer No 17. 76

Germany 231 national law are adequate to address the problem of PSCs/PMCs.84 Also, the government does not see a need to further regulate PSCs/ PMCs at the national level.85 At the same time, the German government supports any initiative against mercenaries internationally.86 Within the last few years, the German government has expressly substantiated its opinion by answering single questions of representatives of the Federal Parliament. A representative of the Federal Ministry of Foreign Affairs has repeated that German and European legal regimes are sufficient to regulate PSCs and PMCs in Germany.87 In international law it is the most important to assure an effective application of the existing regulations as it was discussed in the Montreux Document.88

B. The Use of PSCs/PMCs by Other Governments The use of PSCs/PMCs, according to the German government’s view, indicates weaknesses in governance and relatively low public authority. In particular, their use and deployment in developing countries is perceived by the German government as a value loss of public security.89 The German government is concerned about the spread of PSCs/PMCs and their use instead of police; it will monitor these developments. German citizens are entitled to perform security services as employees of PSCs for foreign armed forces based in Germany.90 On the other hand, German citizens need authorisation to join foreign armed forces.91 If a German citizen joins a foreign armed force without such an authorisation, this person may lose his or her German citizenship.92

V I . C ON C LUSION S

In Germany, security services and related businesses are comprehensively regulated for operations in Germany. There is a lack of specialised rules for private security services abroad; and there is a general lack of particular regulation with regard to military services. With particular regard to international activities, therefore, the general rules applicable 84

ibid, Answer Nos 27 and 35. ibid, Answer No 65 and Bundestag printed paper 16/1296, above n 12, Answer No 15. 86 Bundestag printed paper 15/5824, above n 12, Answer No 60. 87 Bundestag printed paper 17/2060, above n 12, Answer No 11. 88 ibid, Answer No 11. 89 Bundestag printed paper 16/1296, above n 12, Answer No 6. 90 ibid, Answer No 30. 91 2008 German Act on Compulsory Military Service (Wehrpflichtgesetz), available at bundesrecht.juris.de/wehrpflg (accessed on 8 March 2011), s 8. 92 1913 German Nationality Act (Staatsangehörigkeitsgesetz), available at bundesrecht. juris.de/rustag (accessed on 8 March 2011), s 28. 85

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to export controls apply. According to the official position of the German government, German law complies with all pertinent international standards. Hence, the government does not perceive a need for specialised legislation with regard to German PSC/PMC operations abroad. On the other hand, it is well recognised that the privatisation of domestic security prepares the ground for the privatisation of security services abroad.93 Such privatisation and outsourcing strategies have even reached the German Armed Forces. However, the German government takes a reserved position on private actors in crisis areas. For that reason, there are significant legal objections to the privatisation of military services abroad. It remains to be seen whether the German government can uphold this view in the light of increasing international military operations.

93

Krieger, above n 11, 163.

11 Italy ANDREA ATTERITANO

I . I NTRODUC TION

I

N ITALY THERE is no specific legislation on private military companies (PMCs) and no PMC has been incorporated as of yet under Italian law or on Italian territory. In contrast, an ad hoc regulation on private security companies (PSCs)—especially regarding procurement—is foreseen by several norms1. Consequently, aside from procurement, the legal issues surrounding the incorporation and the activity of a private military and security company (PMSC) that may arise—such as the incorporation itself, employment and civil or criminal liability—are governed by general norms. This chapter is aimed at giving a general overview of the Italian norms which apply to PMSCs and it is subdivided into three sections. The first section highlights the criminal dimension of these entities; the second section deals with procurement; and the final section analyses jurisdictional issues and PMSCs’ civil liability.

I I . T H E I TAL I AN C R IMIN AL DIMEN SION OF P MSC S

A. The ‘Qualified Link’ Theory The Italian Criminal Code was enacted when the phenomenon of PMCs did not exist, and even when some PSCs were incorporated under Italian law, they carried out their activities within the Italian territory. It is therefore understandable that the Italian Criminal Code does not include rules that specifically address the involvement of PMSCs in 1 (1) The Consolidated Law on Public Security, RD 18 June 1931, No 773 Title 4, Arts 133–41 (LPS); (2) RD 6 May 1940, No 635 Title 4. Arts 249–260, as modified by the Decree of the President of the Republic (DPR) 4 August 2008, No 153 (the Regulation); (3) RDL 26 September 1935, No 1952; (4) RDL 12 November 1936, No 2144.

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the military or peace-keeping operations or the use of force—by their affiliates—during wartime. Notwithstanding this, a certain number of Italian criminal rules may apply to such entities and their activities and cannot be excluded a priori. The problem of applying penal norms to PMSCs arises from a general principle of law, pursuant to which rules of a criminal nature may not be interpreted extensively. Thus, since no Italian criminal norms specifically address PMSCs, it may be argued that of criminal rules should not be applied to these entities. This argument has been rejected by case law: according to a recent decision of the Court of Bari, when a ‘qualified link’ exists between PMSCs and a foreign state, PMSCs may be subject to a number of criminal rules. In particular, the norms that come into consideration are those provided for by Title 1, Book II of the Italian Criminal Code, which is subdivided into four chapters: (1) Crimes Against the International Personality of the State; (2) Crimes Against the Domestic Personality of the State; (3) Crimes Against the Political Rights of Citizens; and (4) Crimes Against Foreign States, Heads of State and Representatives of State. The ‘qualified link’ theory has been formulated and applied—for the first time—in a case in which two Italian citizens were charged with being mercenaries for the alleged recruitment of certain Italian citizens on behalf of a foreign corporation, apparently a PMC, working in Iraq. The case was subject to a preliminary discussion before judges competent to decide the motion for security measures—filed with the Clerk of the Court of Bari—and was subsequently decided on the merits as well. The details of the case will be discussed in further detail in the next paragraph, but initially the relevant qualified link theory needs to be highlighted. Article 288 of the Italian Criminal Code (cp) punishes the recruitment of persons for the purpose of fighting on behalf of a foreign state or an insurrectional group, meaning that the main issue that the judges had to analyse in the aforementioned case—in which the recruitment was on behalf of a private entity—was to establish whether such a norm applies in cases in which the beneficiary of the recruitment is a foreign corporation, instead of a foreign state or an insurrectional group. The Tribunale del Riesame—which is a kind of judge of second instance exclusively entitled to decide on security measures requests and which does not examine the merits of the case—took the position that if a special link exists between the foreign company and a foreign state, Article 288 cp may be applied. In particular, such a special link exists if the PMCS involved is: • financed by a public entity, with public or hidden financing; • owned either in whole or in part by public entities, also as hidden partners; or

Italy 235 • used as a longa manus of a foreign state or of an insurrectional group. The qualified link theory was neither expressly confirmed nor rejected by the judge who decided on the merits, since two relevant circumstances were ascertained by the end of the discovery phase: (i) the company on behalf of which the recruitment was made was actually an Italian—not foreign—company; and (ii) those recruited were hired as bodyguards— for American businessmen—working in Iraq. Thus, being the beneficiary of the recruitment of an Italian company which exclusively provided security services, Article 288 cp clearly did not apply and consequently there was no need to consider the qualified link theory. It is impossible to predict whether Italian case law will uphold or reject such a theory in the future, but it is clear that, based on the qualified link principle, PMSCs would be subject not only to Article 288 cp but also to a number of other criminal norms set out in Title 1, Book II of the Italian Criminal Code, and more importantly to the so-called crimes against the personality of the state. Before analysing these norms, it is worth highlighting, as a general principle, that in cases of crimes against the personality of the state, the sanctions foreseen by the norms of the Italian Criminal Code are mitigated if the relevant facts are not of a grave nature and aggravated in cases involving terrorist intent or in case of acts committed for the purpose of subverting the democratic order. According to Article 1 of Law No 15/1980, the presence of such aggravating factors will increase the sentence by half its original duration and is not applied—for obvious reasons—if the crime is punished with life imprisonment. However, the sentence will not be increased when the person that originally participated in the terrorist act undertakes to avoid further consequences of such activity and collaborates with the public authorities in identifying the authors of the crime. Moreover, if this person impedes the concrete realisation of the terrorist activity in which he or she was previously involved and furnishes te evidence necessary to reconstruct the facts, or for the identification of the authors of the crime, such a person is not punishable.2

B. The Prohibition of Mercenarism and its Application to PMSCs According to Italian Case-law Based on Article 288 cp, any person that, within the Italian boundaries, and with no authorisation of the government, recruits or furnishes arms to Italian citizens so that they fight on behalf of, or on the service of, a foreigner is punished with imprisonment for 4–5 years’ duration. The 2

See Art 1 of Law No 15/1980 enacted on 6 February 1980.

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sanction is increased if and when, amongst the recruited persons, there are soldiers on duty or people obliged to perform military service. The material elements of the crime are ‘giving arms to’ and ‘recruiting Italian citizens’ on behalf of a ‘foreigner’, without the government’s authorisation. Thus, the norm regards only the recruitment of Italian citizens for fighting on behalf of or in the service of a foreign state or insurrectional group. Persons who have lost, for any reason, their Italian citizenship are considered Italian as well,3 and it is not relevant if in the meantime they have become citizens of a foreign state or displaced persons; the norm is applied if they had Italian citizenship at any stage during their lifetime. In contrast, Article 288 cp does not find application in the case of recruitment of foreigners and displaced persons. In such a case, recruitment will be punished—with a substantial reduction of the sanction—based on Article 653 cp, unless it results in a danger of war for Italy. If this were the case, Article 244 cp (which will be discussed in the next subsection) would apply. On a procedural ground, an authorisation must be obtained by the Ministry of Justice to prosecute the crime. As mentioned above, the application of Article 288 cp to PMSCs was debated before the Italian courts in a case involving a private corporation—Presidium Corporation—which apparently was a PMC incorporated in the Seychelles, with two secondary seats in Italy: the first in Sammichele di Bari (Puglia) and the second in Olbia (Sardegna). Three Italian citizens were recruited in Sammichele di Bari with the aim of working in Iraq on behalf of the DTS Security Llc Corporation—apparently a PMC incorporated in Nevada—in support of Anglo-American military forces. Such persons were entitled to use military arms behind a licence released by the Anglo-American military provisional government of Iraq. For all of these reasons, as a security measure, the judge of first instance ordered the ‘prohibition of expatriation’ for the authors of the recruitment (Decision of 1 October 2004), but the decision was appealed before the Tribunale del Riesame of Bari (which is the judge of second instance). In the second instance proceeding, the court explained that Article 288 cp concerns persons recruited with the purpose of performing military activities on behalf of a foreigner. It is not required that the recruited person be integrated in the foreign army, but it is necessary to carry out such activities in an organised way. Therefore, it is not a crime to recruit persons with the aim of letting them work—even in a state such as Iraq—as bodyguards or other similar professionals, since this cannot be considered a military activity. Moreover, it is not a crime to give a person an arms licence

3

See Art 242, para III, cp.

Italy 237 if such person does not operate in an organised way on behalf of the foreigner. The Tribunale del Riesame then introduced the qualified link theory and considered the norm potentially applicable when recruitment is made on behalf of a PMC. However, in relation to the case at hand, the court affirmed that the qualified link allegedly existing between DTS— or Presidium—and the Anglo-American forces was not supported by evidence and that the alleged military nature of the activities performed by the recruited was also ungrounded. Consequently, the security measure appealed before the court was annulled (18 October 2004). The proceeding on the merits brought the judge to ascertain that the contract of recruitment did not provide any obligation having a military nature for the recruited persons—who were supposed to work as bodyguards—and that DTS and Presidium were companies actually incorporated under Italian law. Based on this, Article 288 cp was clearly not applicable, so the Court of Bari discharged the recruiters, with no discussion on the qualified link theory. Article 288 cp punishes only the person who recruits and/or furnishes arms, not the recruited person, who is eventually punished based on Article 3 of the Law No 210/1995.4 According to this rule, the person that, having received a fee or other benefits or having accepted the promise of such fee or benefits, fights in an armed conflict in a territory under the control of a state of which he is not national (or where he does not have his habitual residence) is punished with imprisonment for 2–7 years, unless he is a member of the armed forces of one of the parties involved in the conflict or has been sent, on official military duty, by a third state (outside of the conflict). Moreover, the person that takes part—receiving fees or benefits—in violent action aimed at changing the constitutional order or at violating the territorial integrity of a foreign state of which he is neither a citizen nor a permanent resident is punished with imprisonment for 3–8 years, unless he is a member of the armed forces of the state where the fact was committed or has been sent on a special mission from another state. On the other hand, Article 4 punishes with imprisonment for 4–14 years anyone who recruits, uses, finances or instructs persons with the aim of allowing them to the commit the aforementioned crimes.

4 Law enacted on 12 May 1995, No 210 by which Italy ratified the International Convention against the Recruitment, Use, Financing and Training of Mercenaries of 4 December 1989.

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C. The Relevance of Article 244 cp for Recruitment on behalf of PMSCs Apart from mercenarism, recruitment on behalf of a PMSC may give rise to criminal responsibility based on Article 244 cp. According to this norm, any person who recruits people or commits hostile acts against a foreign state without the authorisation of the government, causing a danger of war to Italy, is punished with imprisonment for between 6 and 18 years. If war is a consequence of such behaviour, the sanction will be life imprisonment. Furthermore, if such behaviour does not cause a danger of war but is capable of troubling the international relations between Italy and a foreign state, or of causing a danger of countermeasures against Italy or Italian citizens, the sanction will be imprisonment for 3–12 years. If a break in diplomatic relations follows, or if countermeasures are taken against Italy or its citizens, the sanction will be imprisonment for 5–15 years. The lack of governmental authorisation is a necessary condition. If a person—not necessarily an Italian citizen—recruits people in Italy on behalf of PMSCs against a foreign state and causes the aforementioned consequences, the norm must be applied even if a qualified link between the PMSC and the foreigner does not exist, since the norm punishes any person who recruits people, for military purposes, against a foreign state. However, it is difficult to imagine a PMSC performing military activities against a foreign state for free and without being engaged and financed by another state or an insurrectional group. Therefore, the qualified link—although not requested in principle—is usually present in fact. As highlighted by the Italian Supreme Court—Criminal Division,5 this norm has a different scope from the one provided by Article 288 cp, since Article 244 cp: • requires that the recruited person be integrated in the foreign military forces, following the execution of a contract, while Article 288 cp regards any recruitment activity made for military purposes and disregards whether the recruited person is integrated into the military forces or not; • applies if qualified consequences stem from the recruitment activity, ie danger of war or of countermeasures or break of diplomatic relations, while Article 288 cp does not require the occurrence of such consequences;6

5 6

Supreme Court—Criminal Division No VI—1 July 2003, No 36776. Contra see Ass Mantova, 23 June 1955.

Italy 239 • applies to the recruited person as well, while Article 288 cp punishes only the recruiter.

D. The Italian Criminal Norms Applicable in Wartime and their Potential Application to PMSCs The norms previously analysed generally apply during peacetime, but the Italian Criminal Code includes norms that, based on the qualified link theory, may be applied to PMSCs during wartime. According to Article 310 cp, the period of imminent danger prior to the commencement of war—if followed by war—is considered a time of war as well, so that the declaration of war is not necessarily required in order for the following rules to apply. Ascertaining if a time of war is in place is basically a matter of fact. As a general principle, it must be highlighted that the criminal norms applicable in a time of war punish behaviours of persons acting either against Italy—or even foreign states, allied or associated with Italy for purposes of war7—or in favour of states at war against Italy. As specified by the Italian courts, political groups which have not been recognised as states but are qualified as belligerent are included in the notion of states at war against Italy. The most relevant penal norms applicable in times of war are those provided by Articles 242, 247, 248 and 249 cp. As mentioned above, such rules may apply to PMSCs only when: they are financed by a foreign state or an insurrectional group at war against Italy; they are owned— either in whole or in part—by a state or by an insurrectional group at war against Italy; or they are used as a longa manus by a foreign state or by an insurrectional group at war against Italy. According to a general principle of the Italian Criminal legislation, to be guilty of such crimes, an acknowledgement on behalf of the recruited person of the qualified link existing between the PMSC and the foreigner is a required element. Based on Article 242 cp, Italian citizens who bring arms against Italy or are recruited—even if not for the purpose of performing military activities—among the military forces of a foreign state at war against Italy are punished with life imprisonment. The sanction will be not applied when the Italian citizen is recruited in the territory of the enemy state—during the conflict—and is obliged to work on its behalf. Article 242 cp applies even if the Italian citizen is recruited by insurrectional groups. To be applied, Article 242 cp requires that the recruitment occurs in a time of war. Therefore, the norm would not cover the recruitment in 7

See Art 268 cp.

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time of peace on behalf of a PMSC. However, if an Italian citizen is recruited in peacetime and the recruiting PMSC is later engaged by a foreign state at war against Italy, the Italian citizen can no longer work on behalf of such company. In fact, apart from recruitment, Article 242 cp punishes the person who brings arms against Italy, unless he is within the territory of the enemy state and is obliged to do so. Thus, it may be argued that if an Italian citizen brings arms against Italy on behalf of a PMSC, in force of a contractual obligation, he could not be condemned on the basis of Article 242 cp According to Article 247 cp, any person—not necessarily an Italian citizen—who shares intelligence with a foreigner in wartime in order to favour the military operations of an enemy against Italy, or in order to disrupt Italian military operations, or in any case commits other acts for the same purposes, is punished with prison for not less than 10 years. When the author of the crime realises his intent, the sanction is life imprisonment. This norm has a wide application, since it punishes the ‘sharing of intelligence’ with a foreigner either in order to facilitate the enemy or to disrupt Italian military operations. It also punishes any other kind of acts and activities that are performed in order to achieve one of the aforementioned purposes. According to Article 248 cp, any person that, in a time of war, provides, even indirectly, food or other things that may be used against Italy by the enemy state is punished with imprisonment for no less than 5 years. This norm is not applied if the facts are committed abroad and—as for the other crimes discussed—it could be applied in the case of involvement of a PMSC only based on the qualified link theory. However, despite the other rules, Article 248 cp does not require an action along with the specific purpose of helping the foreigner, and consequently the acknowledgement by the recruited persons of such a qualified link between the employer PMSC and the foreigner is not required. In any case, the acts must be committed in Italy. As a consequence, it seems that the PMSC must have at least a secondary seat in Italy. According to Article 249 cp, any person that in a time of war takes part in financing the enemy state, or takes part in operations with the aim of obtaining such financing, is punished with imprisonment for no less than 5 years. This norm is not applied if the facts are committed abroad and may be applied in cases involving PMSCs only based on the qualified link theory. However, despite what we have observed regarding Article 248 cp, it is not necessary that the PMSC have a secondary seat in Italy. What is required is that the acts have been committed on the Italian territory and, as a consequence, transferring money to a PMSC from Italy, through a bank transfer, is sufficient for the norm to be applied.

Italy 241 E. The Italian Criminal Norms on Terrorism and its Relevance for PMSCs Criminal norms regarding terrorism may be relevant for PMSCs, but before analysing the content of such rules—provided for by Articles 270 bis–270 quinquies cp—it is worth recalling the definition of terrorism introduced into Italian legislation. Based on Article 270 sexies cp, the following behaviours are considered terrorist conduct: • conduct which can cause, because of its nature or context, serious damage to a state or even to an international organisation and which is carried out with the specific purpose of intimidating the population or compelling either public powers or international organisations to perform or abstain from performing any act; • conducts which can destabilise or destroy the fundamental political, constitutional, economic or social order of a state or of an international organisation; • any other conduct defined as terrorist by conventions or norms of international law which are binding upon Italy. Clearly, Article 270 sexies cp does not introduce a specific crime, but rather provides a definition of terrorist conduct which is relevant for the application of the norms provided by Articles 270 bis–270 quinquies. Thus, if a group does not meet the characteristics indicated under Article 270 sexies cp, Articles 270 bis–270 quinquies cp will not apply to PMSCs operating on its behalf. In contrast, if a group falls under the definition provided for by Article 270 bis cp, the aforementioned norms will also cover PMSCs working on its behalf. However, Article 270 sexies cp has a broad application, since it first provides a broad definition of terrorist acts—including acts against an international organisation—and secondly because the definition provided therein may even be extended by relevant international norms. The Italian Supreme Court confirmed this principle, stating also that terrorist acts may be committed in time of war as well (Cass 1072/2006, quoted above). That means that insurrectional groups may fall under Article 270 sexies and that PMSCs may be sanctioned according to Articles 270 bis/270 quinquies cp if they work on behalf of an insurrectional group. The broad application of Article 270 sexies cp may also hinder the possibility of someone working on behalf of national liberation movements, but no case law exists on this. Based on Article 270 bis cp, any person who promotes, constitutes, organises, directs or finances associations having the aim of committing acts of violence with terrorist purposes or with the purpose of subversion the democratic order is punished with imprisonment for 7–15 years. Any

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person who takes part in such associations is punished with imprisonment for between 5 and 10 years. Moreover, the things used or finalised to commit the crime, and/or all things which are the price, the product or profit of the same crime, are always confiscated. This crime may be committed in cases of promotion, constitution, organisation, financing or participation in terrorist groups, and, since it is difficult to imagine a PMSC incorporated for terrorist purposes, the norm does not seem applicable to such corporations. However, the Court of Appeal of Milan specified that the norm also applies to persons that offer logistic support to the association, even if they do not share the terrorist intent of the latter (see Appeal Milano, 5 November 2007). This principle has been confirmed—and specified—by the Italian Supreme Court (Cass pen Sez I, 10 November 2006, No 1072). Thus, if a PMSC is involved with a terrorist association in carrying out activities on its behalf, the norm should apply, even though the PMSC is not motivated by terrorist aims. The Italian Supreme Court (Cass pen Sez I, 10 November 2006, No 1072) stated that terrorist acts may also be committed in wartime when such acts of violence—even if committed during an armed conflict and against a military objective—cause danger to civilians. Thus, the norm could apply in cases involving a PMSC supporting a terrorist association even during wartime. It is not required that these acts be carried out; the existence of the terrorist group and the existence of a qualified link between the latter and the PMSC are sufficient. Based on Article 270 ter cp—which may be relevant for PMSCs as well if the qualified link is proven—any person who furnishes food, hospitality, means of transportation or communication to any person who takes part in a terrorist group is punished with imprisonment for a maximum of 4 years. The sanction is increased if the assistance is furnished in a continuous manner. Once again, a person falling under Article 270 ter cp and engaged by a PMSC must be informed of the qualified link existing between its employer and the terrorist group. The same can be said in relation to Article 270 quater and 270 quinquies cp. According to Article 270 quater cp, any person who recruits others to carry out acts of violence with terrorist purposes is punished with imprisonment for 7–15 years. According to Article 270 quinquies cp, any person who educates or gives instructions regarding the use of explosive materials, arms, chemical or bacterial weapons, or of techniques and methods for committing acts of violence for terrorist purposes (even if against a foreign state or an International institution) is punished with imprisonment for 5–10 years. The same sanction is applied to the person instructed. Thus, if a PMSC is involved in the aforementioned activities, the norm will be applied to the recruited persons. Once again, the PMSC must have a qualified link with the

Italy 243 terrorist organisation and the instructed person must be informed of the purposes of the instruction.

I I I . P ROC UREMEN T

A. The Italian Regulation on PSCs Procurement and essential requisites of PSCs and their affiliates is provided by: (i) The Consolidated Law on Public Security—RD 18 June 1931, No 773, Title 4, Articles 133–41 (hereinafter LPS); (ii) RD 6 May 1940, No 635, Title 4, Articles 249–60 (hereinafter Regulation); (iii) RDL 26 September 1935, No 1952; and (iv) RDL 12 November 1936, No 2144. PSCs are able to work in Italy only with the previous authorisation of the public authority, which is the main condition for private entities to operate in the field of security. Based on Article 133 LPS, public and private entities may avail themselves of special guards for the surveillance of their properties. They may also do so in association with others for the surveillance of common properties, but in such a case they need to obtain the previous authorisation of the public authority, ie the Prefect (Prefetto). Thus, if a public or private entity may directly hire special guards, a group of entities needs to make an ad hoc application to the Prefect.8 Whereas public and private entities may individually designate special guards for the surveillance of their property without the authorisation of a public authority, private entities may not perform surveillance activities without the authorisation of the Prefect.9 Such authorisation is required in order to carry out investigations and searches, or to collect information on behalf of private entities.

8 The content of the application is specified by Art 249 of the Regulation, according to which, in order to obtain the authorisation required for the surveillance of common properties, the associated entities must provide the Prefect with two copies of a written act containing the personal data and the signature of all the associated parties, the duration of the association, and all forms of aggregation, substitution and withdrawal of the associates. In any case, on the basis of Art 249, public and private entities that intend to avail themselves of special guards are obliged to make a declaration to the Prefect,indicating the personal data of the designated special guards. Such a declaration must be signed by the legal representative of the entity or by its owner and by the designated special guards. All the documents necessary in order to demonstrate the possession of the require requisites (see Art 138 LPS) must be attached to the declaration. 9 See Art 134 LPS.

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B. Conditions Provided by the Law for the Concession of the Licence to PSCs The law sets forth the conditions which private entities and their affiliates must comply with in order to obtain the licence. In particular, such conditions are specified by the LPS and, with regard to the more technical aspects, by the Regulation; they must be fulfilled throughout the entire duration of the activities being performed, otherwise the licence is revoked if they cease carrying out the activities after it has been granted. The Prefect’s licence may only be granted to Italian citizens, individuals or corporations.10 Thus, if an authorised person were to lose their Italian citizenship, the licence would be revoked. The licence cannot be given to people who have been condemned for having committed wilful crimes or—according to Article 11 LPS—to persons subject to security measures. Nor can it be given for operations which imply the exercise of public functions or limitations of individual freedom, and it may be denied—based on Article 136 LPS—in consideration of the number and importance of the PSCs already in existence. To obtain a licence, Article 137 LPS requires the payment of a sum of money, to be established by the Prefect. This sum is a guarantee for the obligations assumed by the private institutions who grant licences so that, if a violation of one of these conditions were to occur, the Prefect would order the devolution of the sum in favour of the state. The private institution is entitled to have the money returned when, after three months have passed following the end of its activities, the institution has proved that it has no outstanding obligations. Once the licence has been obtained, the private institution must respect specific obligations aimed at extending the state’s overall control over its activities. For example, the directors of private institutions are obliged to keep a register of the activities they undertake daily.11 Public (state) security agents may ask for the exhibition of such a register at any moment, and the directors are consequently always under the obligation to show it. The data that the register must contain are always indicated by the law and must be kept for five years.12 According to Article 136 LPS, the licence may be revoked: (i) if the authorised person does not demonstrate it has the technical capacities required in order to perform the authorised activities; or (ii) for reasons of public security or public policy. 10

According to Art 134 LPS. See Art 135 LPS. 12 In particular by Art 260 of the Regulation, according to which the Register must indicate: (i) the personal data of the persons with whom business or operations are carried out; (ii) date and type of the operation carried out; (iii) the established price and the results of the operation carried out; and (iv) the documents used by the client in order to obtain performance of the required activity. It must be kept for five years. 11

Italy 245 Article 257 quater of the Regulation provides for other causes of revocation of the licence. In particular, it is revoked when the private entity has performed an activity for which it was not authorised; if a criminal proceeding has been started against persons having directive functions in relation with crimes indicated under Article 51, paragraph 3 bis, of the Criminal Code (most of all, crimes for ‘mafia’); and for reasons of public security. Finally, the licence may be revoked or suspended if the private entity does not respect its social security and insurance duties towards its affiliates. Following the revocation of the licence, the guards recruited by the private entity will automatically lose their positions.

C. The Application form Required in Order to Obtain the Licence The Regulation also specifies the content of the application form that must be filled in in order to obtain a licence. Before the enactment of the DPR on 4 August 2008, the legislation was vague on this point and the Prefect used to have wide discretional powers. To be more restrictive on the control of the public authority, the parliament introduced specific rules.13 Along with the application form, the PSC must include details of its technical project, and documentation attesting to the technical capacities of its affiliates and documentation showing the possession of the all the technical and financial means necessary to perform the security and surveillance activities for which the authorisation is required. According to Article 257 ter, once possession of all the requirements has been verified, the applying entity is informed of the time, which will be no moe than 30 days, within which the licence will be issued. Before such issue, the private entity must pay the guarantee and conform to all the obligations provided by the law and regarding the insurance and social security duties towards its affiliates. Article 257 sexies of the Regulation provides the chance for more authorised private entities to create a temporary association, which can work exclusively within the limits of the licences obtained by the associated corporations. The creation of the association must be previously communicated to the Prefect. 13 These norm are those provided for by Arts 257bis–257sexies of the Regulation. However, the application must indicate, based on Art 134 LPS: (i) the name of the applying entity, its chief and the directors appointed for eventual second seats, and the name of all the persons having administrative or directive functions; (ii) the structure of the applying entity, the name of the owners of the corporation and the eventual shareholding, in ‘control position’, in other corporations; (iii) the territory in which the applying entity intends to operate, specifying the legal seat of the corporation and the other eventual secondary seats; and (iv) the activities for which the entity applies for authorization.

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D. Conditions Provided by the Law for the Affiliates of PSCs The law also provides certain conditions which each individual affiliate of PSCs (hereinafter Special Guards) must comply with. Private institutions are obliged to communicate the names of their personnel and any subsequent modification to the Prefect, and to return the approval decrees of guards which have terminated their service. In particular, Special Guards must fulfil the following requirements: (i) they must have Italian citizenship; (ii) they must be over 18 years of age and must have been enrolled in the military; (iii) they must be able to read and write; (iv) they must be not to have been condemned for any crime; (v) they must have an ID card; and (vi) they must be enrolled with the INAIL.14 Previously the norm demanded that Special Guards have excellent political and moral behaviour, but in 1996 the Constitutional Italian Court declared this part of Article 138 unconstitutional.15 The controlling authority of such requirements is the Prefect, who must approve the designation of the Special Guards by an ad hoc decree of approval.16 Based on Article 250(7) of the Regulation—as modified by the DPR 4 August 2008, No 153—the performance of security activities without the previous authorisation is an abuse of title, punishable by law. Special guards are registered in a specific register kept by the public authority of the competent administrative circuit (ie the Pretore). Regarding the territorial competence of the public authority, Article 252 of the Regulation provides that the decree of approval must be issued by the Prefect of the administrative district (Provincia) where the properties to be supervised are located. If the properties to be supervised are located in more than one administrative circuit, the decree of surveillance may be issued by one of the Prefects of the involved circuits, but only after consultation with the other Prefects. In case of violation of the norms above by private entities or Special Guards, the sanction is prison for no more than 2 years and the payment of a fine (in accordance with Article 113, paragraph 1 of the Law of 24 November 1981, No 689). Special Guards are entitled to sign statements only in relation to the activities they are entitled to perform. Such statements may be used in legal proceedings and are prima facie valid (Article 259 of the Regulation). They are also under the control of the Questore, as provided by the RDL of 26 September 1935, No 1952. Thus, the private entities that use Special Guards are also required to obtain an approval by the Questore of the relevant administrative circuit, describing the activities that they perform and the functions/tasks assigned to each individual 14 15 16

See Art 137 LPS. Supreme Court—Criminal Division—25 July 1996, No 311. The content of the decree is indicated by Art 250 of the Regulation.

Italy 247 guard. The Questore may suspend a special guard from service, while their licence may be revoked by the Prefect. According to the RDL of 12 November 1936, No 2144, the private investigation agencies with more than 20 employees are also under the supervision of the Questore. If considered appropriate, the Questore may also extend its authority over private institutions with less than 20 employees. Such authority may be delegated by the Questore to its functionaries. Special Guards must be in uniform or wear a badge. Both uniform and badge must be approved by the Prefect.17 Based on Article 256 of the Regulation, Special Guards must apply for a special licence according to Article 42 of the LSP and Article 71 of the Regulation, in order to bear arms.

E. The Involvement Abroad of Italian PSCs Considering all the requirements necessary for private entities to obtain the licence of the Prefect, and considering that the authorisation is given by the authority of the administrative circuit ‘in which they operate’, it is unlikely that such entities may be involved in military operations abroad. According to Article 139 LPS, private institutions are obliged to perform their activities in favour of the state if and when requested by the public security authority. Their agents are also obliged to respond to all requests of public security agents or of the judicial police (polizia giudiziaria). This norm could open the way to the involvement of private entities in the international scenario, but it seems that, in this respect, other conditions must be previously met. The law enacted by the Italian parliament on 29 March 2007 (No 38), relating to the international missions in Afghanistan, Sudan and Lebanon, authorises the Ministry of Foreign Affairs to assign temporary duties of consultancy or specific activities to private entities. Thus, it seems that, in order to be involved abroad, private entities need to have prior authorisation by the Ministry of Foreign Affairs, and the Ministry must be previously authorised by the law. This means that, regarding the involvement of Italian private institutes in Afghanistan, Sudan and Lebanon, the Ministry of Foreign Affairs may only give them temporary functions of consultancy or may ask them to perform certain specific activities, which must be previously indicated.

17 They are governed by Arts 230 et seq of the Regulation and are not required for private investigators.

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Andrea Atteritano I V. JUR I S D I C TION AL ISSUES AN D THE LAW AP P L I C AB LE TO P MSC ’S C IV IL LIABILITY

The first issue that comes to mind with regard to the issue of jurisdictional competence on civil liability is whether EC Regulation No 44/2001—regarding civil and commercial matters—applies to PMSCs.18 In the Lechouritou case,19 the European Court of Justice (ECJ) excluded the acta jure imperii of the state from the field of application of the Brussels Convention of 1968, but the principle applies also to EC Regulation 44/2001. The claim was brought by individuals who allegedly suffered damages from war operations carried out by the German Armed Forces, but the ECJ excluded the applicability of the Brussels Convention of 1968 to the case, since such operations are a typical expression of state sovereignty (being unilaterally decided and strictly tied to state foreign policies). Pursuant to such case law, the problem is understanding whether the Lechouritou scenario may apply to PMSCs or not. It should be highlighted that in Lechouritou the ECJ gave great importance to the fact that one of the parties was a state, ie a public authority exercising sovereign prerogatives. The importance of this fact is strengthened by the reference made to the Sonntag case,20 where the Court stated that a claim for damage ‘falls outside the scope of the Convention only where the author of the damage against whom it is brought must be regarded as a public authority which acted in the exercise of public powers’. Therefore, if the parties to the dispute are private entities, the EC Regulation may apply. PMSCs are undeniably private entities that can be engaged by a state to perform certain functions. Thus, if the national courts simply look at the juridical nature of PMSCs, EC rules should be applied. Nonetheless, 18 Council Regulation No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (EC Reg 44/2001), [2001] OJ L12/1. 19 Case C-292/05 Lechouritou et al v Dimosiotis Omospondiakis Dimokratias tis Germanias [2007] ECR I-01519. The main proceedings regard the massacre of civilians perpetrated by Nazi soldiers on 13 December 1943. A total of 676 inhabitants of the municipality of Kalavrita (Greece) were victims of the massacre. In 1995, an action for compensation was brought before the Polimeles Protodikio Kalavriton (Court of First Instance, Kalavrita) against the Federal Republic of Germany. In 1998 the Court dismissed the case, since Germany was immune from the Greek jurisdiction. In 1999 the decision was appealed before the Court of Appeals of Patras (Greece), which stayed proceedings until the Anotato Idiko Dikastirio (Superior Special Court) had ruled, in a parallel case, on the interpretation of the rules of international law concerning immunity of sovereign states. In 2002 the Anotato Idiko Dikastirio upheld the immunity exception. Later the plaintiffs in the main proceedings pleaded the Brussels Convention, in particular Art 5(3) and (4), which, in their submission, abolished states’ right of immunity in cases of torts committed in the state of the court seized. The Efetio Patron had doubts as to whether the proceeding brought before it fell within the scope of that Convention. Thus it decided to stay proceedings and to refer a question for a preliminary ruling to the ECJ. 20 Case C-172/91 Sonntag v Waidmann [1993] ECR I-1963.

Italy 249 PMSCs could be qualified as de facto public authorities, because of the nature of the functions exercised on behalf of the state. The adoption of this ‘functional’ criterion involves an evaluation of the status of PMSCs and inevitably leads to a diversification in the rules to be applied to them, on the basis of the type of activities carried out. In fact, if PMSCs were asked to provide communications support or logistic services—such as billeting or messing—there would be no exercise of sovereign prerogatives and accordingly they may not be qualified as public authorities. In contrast, if the delegated functions were inherent to public powers, they could be treated as state entities. Consequently, EC Regulation 44/2001 would be applicable to PMSCs in the first case but not in the second, and the judge should evaluate the type of functions assigned to the PMSC involved at the very beginning of the trial. This means that the court in question would be obliged to carry out a long and expensive evaluation on the merits of the case for the sole purpose of addressing a merely preliminary issue. On this basis, between the criterion of the nature of the parties involved and that of the type of functions exercised, the former seems to be more acceptable, for reasons of both certainty of law and costs of the proceeding. Moreover, since the contract concluded between the contracting state and PMSC may be considered a services contract, and since the company assigned the contract is not usually considered a public authority, purely based on this assignment, PMSCs should be treated as private entities like any other corporation. Two matters require clarification at this point. First, the doubts regarding the applicability of EC Regulation 44/2001 concern only unlawful acts committed by PMSCs in the exercise of functions delegated to them by a state. In relation to other kinds of civil crimes, the application of EC rules does not seem open to question. Secondly, although the jurisdictional rules provided by EC Regulation 44/2001 may apply only if the defendant is domiciled within the European Union—unless the recent proposal for revision by the EC Commission should be upheld—their application to PMCSs incorporated in a state which is not a member of the EU is granted, in the Italian legal system, by Article 3 of Law No 218/1995. In fact, based on this norm, the special criteria of jurisdiction contained in the Brussels Convention of 1968 are applicable even when the defendant is not domiciled within the EU, but only if the claim deals with civil or commercial matters. Consequently, in order to establish its own jurisdiction, the Italian courts apply EC Regulation 44/2001, even beyond its field of application ratione personae. Thus, regarding contractual liability, a PMSC will be sued before the court indicated in the contract21 or, as a general rule, before the court 21

See Art 23 of EC Reg 44/2001.

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of the country in which the relevant PMSC has been incorporated.22 Of course, the special criteria which are provided by sections 2–4 of the EC Regulation would find application if the necessary conditions were met. Regarding tort liability, the general criterion of the place of incorporation coincides with the special criterion provided by Article 5, paragraph 3 of the EC Regulation. Based on this rule, national jurisdiction subsists if the ‘harmful event occurred’ in the territory of the state. The ECJ clarified the dual nature of the criterion introduced by the aforementioned Regulation:23 the plaintiff can opt for either the court of the state where the unlawful fact occurred or that of the state where the damage took place. The question of the applicability of the EC rules also regards the issue of the applicable law, since acta iure imperii are expressly excluded by the scope of application of EC Regulations Rome I and II.24 However, the solution to the problem involving EC Regulation 44/2001 seems practicable also when Regulations Rome I and II are considered. Thus, the law applicable to contracts to which PMSCs are parties is in principle the one indicated in the contract25 itself or the law of the country where the PMSC is incorporated.26 The special rules indicated in the EC Regulation Rome I are available when the relevant conditions are met.27 In cases related to the alleged tort liability of a PMSC, Italian courts would choose the applicable law through the criterion of the place where the damage occurred (lex loci damni).28 The general criterion of lex loci damni is derogated if the PMSC sued and the injured party had their habitual domicile/residence in the same state at the time when the damage occurred.29 In such a case, the law of the country where both parties had their residence/domicile would apply. However, if the unlawful act were more closely connected with a different state, the law of that state would apply.30 These are two exceptions to the general rule 22

See Art 2 of EC Reg 44/2001. Case C-364/93 Marinari v Lloyds Bank plc and Zubaidi Trading Co [1995] ECR I-02719. The Court has specified that ‘the term “place where the harmful event occurred” . . . does not, on a proper interpretation, cover the place where the victim claims to have suffered financial damage following upon initial damage arising and suffered by him in another Contracting State’. See Case C189/08 Zuid-Chemie v Philippo’s Mineralenfabriek. 24 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L177/6 (EC Reg 593/2008); Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L199/40 (EC Reg 864/2007). 25 See Art 3 of EC Reg 593/2008. 26 See Art 4(b) of EC Reg 593/2008. 27 See Arts 5–8 of EC Reg 593/2008. 28 See Art 4, para I, of EC Reg 864/2007. 29 See Art 4, para II, of EC Reg 864/2007. 30 See Art 4, para III, of EC Reg 864/2007. 23

Italy 251 that seem to be unlikely to apply to unlawful acts involving PMSCs. A limited application of these two special exceptions may be envisaged in cases other than unlawful acts damaging the population of the states where PMSCs operate, or in cases of unlawful acts carried out by PMSCs resulting in damage or injury to the personnel of allied armed forces. A further derogation is represented by the will of the parties, who may chose a different law, by an ad hoc agreement that can be executed either before or after the commission of the unlawful act. In cases in which EC Regulation Rome II is not applicable, Italian courts will select the law to be applied according to its own norms of international private law. Based on Article 62 of Italian Law No 218/1995, the injured party has the possibility of choosing between the loci commissi delicti and the lex loci damni.

V. C ON C LUSION S

Regarding the criminal dimension of PMSCs, although the Italian Criminal Code was enacted when the phenomenon of the ‘privatisation of war’ did not exist, it seems possible to interpret certain criminal norms as applicable to such entities. The general principles of the Italian Criminal legislation must of course be taken into account, and the principle that prohibits interpreting penal norms in an extensive way may complicate the application of such norms to PMSCs. Despite this, according to the Judge for Preliminary Investigations (Giudice delle indagini preliminari) and the Tribunale del Riesame of Bari, the crime of mercenarism, provided by Article 288 of the Italian Criminal Code, may also be committed by a PMC if a qualified link exists between the PMC and the foreign state, or the insurrectional group, on the behalf of which it performs its activities. Thus, in order to consider a PMC guilty of mercenarism, it must be proved that the PMC is financed by a public entity, with public or hidden financing; that it is owned either in whole or in part by public entities, also as hidden partners; or that it is used as a longa manus of foreign states or insurrectional groups. As mentioned above, the qualified link theory has been applied by only two judges and in relation with the application of a security measure. Thus, this judicial trend cannot be considered consolidated. If confirmed in the future, the qualified link theory could give way to a new criminal dimension for PMSCs. In relation to recruitment, it is important to stress that, while there is no specific regulation on PMCs, PSCs are governed by specific norms. Such norms regard above all the constitution and the life of such entities and their affiliates, and are finalised to grant a state overall control over their activities. In fact, considering that they operate in

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the field of security, the Italian state feels the need to extend its public control on them, not only at the moment of their constitution, but throughout their entire life. Thus, PSCs cannot operate without the previous authorisation of the public authority and must first obtain the licence of the Prefect. In order to obtain the licence, certain conditions must be met, and if they cease after the concession of the licence, then the licence will be revoked. Furthermore, affiliates and directors of PSCs are also under specific obligations; thus the Italian state grants itself another instrument of control of PSCs’ activities. The norms regarding PSCs were enacted even before the Second World War and they did not take into account the possibilities for the Private Entities to be engaged abroad. Although the present Italian government felt the need to modify the Regulation, this question is not expressly faced by the DPR of 4 August 2008, No 153. Notwithstanding, the Italian parliament has authorised the Ministry of Foreign Affairs to involve private entities in the international missions in Lebanon, Sudan and Afghanistan. Thus, lacking a general norm, it seems that such involvement is possible only if PSCs obtain an authorisation of the Ministry of Foreign Affairs and if the Ministry of Foreign Affairs has been previously authorised by law. It also seems that, regardless of the intervention of the government (with the enactment of the aforementioned DPR), the Italian legislation is not able to fully cover the involvement of PSCs abroad and in international scenarios, and that in this respect the lack of legislation must be filled in by the authorisation of the Ministry of Foreign Affairs or by the legislation authorising him to involve PSCs abroad. Consequently, the regulation of PSCs’ activities abroad could differ from mission to mission. In order to avoid this, a new law on their international involvement is certainly preferable. The same may be said in relation to PMCs, but since no PMCs have yet been incorporated under Italian law or in the Italian territory, the question is not manifestly urgent. Regarding PMSCs’ civil liability, the main issue is to understand which national law finds application and which national judge is entitled to stress their accountability. Reasons of certainty of law and procedural costs lead to the consideration of the EC norms—provided for by EC Regulation 44/2001 and Regulations Rome I and II—applicable to PMSCs instead of the national rules.

12 The Netherlands GUIDO DEN DEKKER

I . I NTRODUC TION

I

N THE NETHERLANDS, like in many other European countries, there are no laws specifically directed at the regulation of (armed) PMSC services abroad. Although miscellaneous laws in theory may apply to peacetime domestic services that can be provided by private contractors, there are no domestic laws specifically concerned with assuring compliance with international humanitarian law (IHL) and human rights law by PMSCs. This chapter touches on the regulation of domestic security and investigation services in the Netherlands and the domestic regulation of the use of force, and then discusses categories of laws and their (potential) relevance to PMSCs. Separate attention is given to the policy of the Dutch government regarding PMSCs.1

I I . D OMESTIC SEC URITY AN D I NV E S TIGATION SERV IC ES

In the Netherlands, the offering or conducting of private security services or private investigation services is subject to a licence of the Ministry of Justice.2 It is an economic offence if a licence is not obtained. A security organisation is defined as a private organisation conducting ‘security 1 The information about the government position in this chapter has been obtained from publicly available government sources (www.overheid.nl), as well as from reports of the Dutch Advisory Council on International Affairs, in particular, the AIV Report No 59, ‘Employing Private Military Companies, a Question of Responsibility’ (December 2007), available at www.aiv-advice.nl (hereinafter AIV Report December 2007). The Dutch case law with an LJN number in this report can be found at www.rechtspraak.nl. 2 Act on the private security organisations and private investigation bureaus (Wet particuliere beveiligingsorganisaties en recherchebureaus), 24 October 1997; Regulation on security organizations and private investigation bureaus (Regeling particuliere beveiligingsorganisaties en recherchebureaus), 3 March 1999, as amended on 2 December 2002

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services’, ie the protection of the security of persons and goods or the guarding against disturbance of the peace on terrain and in buildings. The licence categories are private surveillance organisations (either ‘in house’ or providing services for third parties), private alarm centres, private money and valuables transport services, and other private organisations conducting security services (eg bouncers). Professional training qualifications, identifications cards, uniforms and complaints procedures are part of the detailed regulations. The guards and investigators are unarmed (the only ‘arms’ referred to in this law are dogs and handcuffs, for which separate permission is required). This is clearly not the type of regulation that would apply to the offering or providing of military and/or security services in crisis areas abroad.3 Domestic legislation containing instructions concerning the use of armed force, including firearms, by security guards of military objects (located in the Netherlands) is only applicable to members of the armed forces and civilian security guards hired by the Ministry of Defence, as they are the only ones allowed to provide these services under Dutch law.4 As far as can be concluded from open sources, there is as yet no developed private military and security ‘industry’ in the Netherlands offering (armed) services abroad in crisis areas. Still, there reportedly has been a recent increase in (small) businesses in the Netherlands offering PMSC-like services, including firearms training abroad, as well as antipiracy services and security guard services in crisis areas abroad.5

I I I . D OME S T I C REGULATION OF ARMED FORC E

A. Possession of Arms In the Netherlands, the possession and carrying of (fire)arms is monopolised and controlled by the government. It is as a rule prohibited to anyone to produce, trade, transfer, possess or carry firearms. There is (with respect to educational qualifications) by Regulation of the Ministry of Justice No 5199069/DBZ/02. 3 This is confirmed by the case law with respect to this Act: it relates only to domestic situations and almost all cases originate from problems regarding the (renewal of the) licence. 4 Statute Law on the use of force by guards of military objects (Rijkswet geweldgebruik bewakers militaire objecten), 24 February 2003; Order on the use of force by personnel of the Ministry of Defence in the execution of security guard tasks (Besluit geweldgebruik defensiepersoneel in de uitoefening van de bewakings- en beveiligingstaak), 22 July 2000. 5 See the Dutch NGO Campaign against the Arms Trade (Campagne tegen Wapenhandel) report ‘The Rise of the New Mercenary. Private Services in the Military and Security Sector’ (De opkomst van de nieuwe huurling. Over private diensten in de militaire en veiligheidssector), January 2011.

The Netherlands 255 a licensing system in place (eg for sports and hunting).6 The prohibitions do not apply to the army, the police and some other government forces, such as special criminal investigators. The exemption may apply as well to persons that have been designated by the Ministry of Defence as persons forming part of or working for the army (including a foreign army). The strict regulation of firearms is the principal reason why Dutch PMSCs offer their firearms trainings outside of the Netherlands.

B. Arms Export The export of arms from the Netherlands and the transit of military goods across the Netherlands are regulated by various domestic laws and regulations.7 Arms exports are subject to a licensing system. The rules are based on, among others, the EU Code of Conduct on Arms Exports (now replaced by Council Common Position 2008/944/CFSP) and the Wassenaar Arrangement munitions list. The laws relate to weapons and dual-use goods (which require an end user’s declaration for export). Although technical assistance with respect to dual-use goods may be covered as well, the rules are equipment related and do not seek to regulate the export of military and security services in their own right. Export to and import from other Member States of the EU of arms and munitions is prohibited unless consent has been obtained from the Dutch Tax/Customs central authority for import and export, or, with respect to arms for the army or the public services (the police), the Minister of Defence.8 Consent for import from an EU Member State is refused if the applicant (requesting consent) is not allowed to have at his disposal the weapons or munitions in the Netherlands, unless they are destined for transfer and storage in customs sheds. Consent for export to an EU Member State is refused if the applicant cannot prove with an official document or if it is not otherwise known that the receiving authorities have no objections against the presence on their territory of the arms or munitions. ‘Arms and munitions’ in this context refers to equipment (it includes knives, catapults, crossbows, handguns, rifles and automatic weapons and munitions for those weapons) and does not relate to services. 6 Act on Arms and Ammunition (Wet wapens en munitie), 5 July 1997; Regulation on Arms and Ammunition (Regeling wapens en munitie), 4 July 1997; Policy Guidelines on Arms and Ammunition (Circulaire wapens en munitie), 15 July 2005. 7 General Customs Act (Algemene Douanewet), 3 April 2008; Strategic Goods Import and Export Order (Besluit Strategische goederen), 26 April 1963 as amended; financial involvement concerning strategic goods Order (Besluit financieel verkeer strategische goederen), 24 October 1996; Sanctions Act 1977 (Sanctiewet 1977), 15 February 1980. 8 Act on Arms and Ammunition, 5 July 1997, Art 1, ss 7 and 14–20.

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Guido den Dekker I V. C OR P O RATE LAW AN D LABOUR LAW

There is no specific regulation with respect to PMSCs business in corporate law. Every owner of a business (incorporated businesses as well as one-man businesses) in the Netherlands has to register with the Trade Register of the Dutch Chambers of Commerce.9 There is a mechanism in place for ongoing screening of possible (financial–economic) abuse of legal persons.10 If a company having legal personality carries out activities contrary to public order, the Public Prosecutor can request the district courts to declare that the company is prohibited and will be dissolved.11 Activities ‘contrary to public order’ include the threat or use of force against persons (state officials or not) and conspiracy with a foreign entity against the state, in a systematic and serious manner such that, if applied on a large scale, the Dutch society would be disrupted. There are no specific rules on PMSC services in labour law. Not much information is provided about deployment instructions or training of PMSCs (employees) before they start working in their area of operation. The government has indicated that sometimes it has been agreed in the contract that PMSC employees before being deployed in the area of operation go through a short training with the Ministry of Defence. In the event of long-term contracts, the private firm to some extent will be involved in the planning of the missions after the political decisions about these missions have been taken.12 The labour laws on personnel health and safety only have limited extraterritorial application (and are not relevant to ground operations abroad).13 However, in Dutch law, the employer in principle is responsible for damages incurred by the employee in the course of his work (the same applies to the person who as part of his trade or business uses someone’s labour without an employment contract).14 Furthermore, there is a vicarious liability in tort for subordinates.15 If the private company assigns independent—ie not subordinate— contractors for a job, the responsibility issues are regulated16 similar to employment relationships (and usually arranged in the contract). The government has indicated that the main PMSC contractor is responsible for his subcontractors, and has made it clear that if necessary for 9

Trade Register Act 2007 (Handelsregisterwet 2007), 22 March 2007. See Act on the Control of Legal Persons (Wet controle op rechtspersonen), 8 May 2003. 11 Dutch Civil Code 2:20(1). 12 Answers by the Ministers of Defence and Foreign Affairs on questions raised in connection with the government reaction to the AIV advice, 20 June 2008, 10 (hereinafter Answers 20 June 2008). 13 eg Labor Conditions Act 1998 (Arbeidsomstandighedenwet 1998), 18 March 1999; Working Hours Act (Arbeidstijdenwet), 23 November 1995. 14 Dutch Civil Code 7:658. 15 Dutch Civil Code 6:170. 16 Dutch Civil Code 7:404; 6:76; 6:171. 10

The Netherlands 257 the performance of the contract it is stipulated in the contract that some of its clauses (which clauses is not revealed) shall be made part of the contracts between the main contractor and his subcontractors.17

V. G OV E R NME NT P OLIC Y RELATED TO P MSC S

A. Government Procurement Policy and PMSCs Dutch foreign policy is characterised by the combination of diplomacy, defence and development (3D), of which the operations in Bosnia, Iraq and Afghanistan are examples.18 This means that the provision of security and stability will be linked to initiatives to strengthen local governance and societal build-up. The use of private contractors is a structural part of the Dutch concept of operations. The extent to which PMSCs will be used depends on the situation and is subject to continuous appraisal. The government has hired private security companies for the benefit of the army, among which there is construction, advisory and organisational work including armored transports, pre-reconnaissance and personal protection, as well as for the protection of diplomats in cities where special threats have been discerned. The most extensive use of PMSCs so far has been in the Dutch contingents of the mission in Afghanistan. In other missions where the Dutch army is involved, the Netherlands is a junior partner and does not hire private contractors (they are hired by the UN or the EU).19 With respect to military services, the Ministry of Defence has initiated a number of performance based outsourcing projects relating to the (purchase and) maintenance of certain loading systems, trailer trucks and certain battlefield control radar systems, and logistics.20 Depending on the circumstances, general tendering rules for government procurement may apply to the hiring of services of PMSCs.21 In the selection of the private companies, according to the government, the highest quality standards are set out and the fulfilment of the tasks is bound to meticulous instructions. There are eight policy criteria explicitly mentioned by the government in the process of decision making to hire 17

Answers 20 June 2008, above n 12, 20–21. Ministry of Defence policy brief ‘In service World-wide’ (Wereldwijd Dienstbaar) 2007, 1. 19 Answers 20 June 2008, above n 12, 3. 20 Answers of the Ministry of Defence to questions regarding new forms of material procurement, 21 December 2007. 21 Public procurement is largely regulated at the EU level. The current Dutch regulation on tenders for government procurement (Besluit Aanbestedingsregels voor Overheidsopdrachten 2005) has, inter alia, implemented EU Directive 2004/18/EC on the procurement of goods, works and services. 18

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PMSCs: (i) maintenance of the state’s monopoly on the use of force; (ii) the importance of the mission and the tasks to be outsourced; (iii) the security risks to which the personnel in question will be exposed; (iv) the degree of operational dependence on PMSCs; (v) the existence of military alternatives; (vi) the legal framework pertaining to state responsibility; (vii) the scope for monitoring the implementation of the tasks that are to be outsourced; and (viii) the financial and economic issues.22 The desirability of continuity and sustainable cooperation with PMSCs for a specific task is taken into account as well. The government generally supports the hiring of or subcontracting to locals, as they are usually more familiar with the situation on the ground and the circumstances in the area of operation (although reportedly only in one contract has it been stipulated that goods and services are to be procured as much as possible from local private contractors).

B. Government Policy on Outsourcing of Armed Force As appears from the above, the government has made it clear that the outsourcing of tasks to private military and security contractors does not mean that the Dutch state at any point surrenders the state monopoly on the use of armed force. The state maintains the monopoly on armed force at all times, including the operating (at a distance) of weapons systems.23 However, if the possession and carrying of arms is legal in the area of operation and the governmental powers of the host state are weak, the Dutch government considers it undesirable that the personnel of the PMSCs or their subcontractors (often locals) would be prohibited from carrying arms. A permit or approval for carrying arms is then requested from the local authorities. Here, ‘arms’ means (hand)guns for self-defence, not (assisting in) the operation of weapons systems (other than maintenance), which the Dutch government considers is not a proper task for private contractors.24 This latter consideration is inter alia based on the government’s position that allowing the exercise by PMSCs of typical elements of state power could make their actions attributable to the state under the international law of state responsibility. Although the contracts between the government and the PMSCs operating in conflict situations are not disclosed (not even on a no-names basis to the Dutch parliament) for reasons of competition, protection of

22 Reaction of the Ministries of Defence and Foreign Affairs to the AIV report on employing private military companies, 25 April 2008, 4 (hereinafter Reaction 25 April 2008); AIV Report December 2007, 32. 23 Answers 20 June 2008, above n 12, 5; Reaction 25 April 2008, 4. 24 Reaction 25 April 2008, above n 22, 8.

The Netherlands 259 operational data and privacy of personal data,25 the government has indicated that the contracts contain instructions regarding the permitted use of armed force. These instructions are more restrictive than those of the government forces. The private contractors hired by the government to protect Dutch officials and diplomats abroad, according to their contract—and analogous to government employed personnel in similar positions—are only allowed to use violence in extreme emergency situations. For example, the members of the local Afghan security organization Afghan Security Guard (ASG), which was hired by the Dutch government to man strategic posts and patrol in Afghanistan around the base camps in the province of Uruzgan, were instructed in their contracts to use violence in self-defence only. Any use of violence by ASG members had, according to their contracts, to be reported to the Dutch mission in Uruzgan, which thereupon could inform the Afghan authorities if suspicions that a criminal act took place were raised.26 The contracts also stipulated that they must observe the Afghan laws (although immunity was granted from local criminal law; see below) and respect human rights. However, the obligations with respect to human rights or the notion itself have not been specified or elaborated in the contracts. Special care is taken with respect to the hiring of armed contractors. The government has indicated that in future missions it will differentiate between armed and unarmed private contractors. The necessity of hiring armed contractors is assessed on a case-by-case basis, taking account of (undisclosed) criteria established by the Director of Operations after advice from the Directory of Legal Affairs of the Ministry of Defence. The government has indicated to the parliament that contractors shall not under any circumstances be used for offensive tasks including the operation of weapons system, also taking into account that otherwise they might lose their status as civilians under IHL.27 Tasks directly related to strategic planning, the interrogation of prisoners (of war) and the gathering and processing of information from several sources of intelligence (unless the gathering of information would not mean that the employees of the private contractor loses the protection offered by the status of civilian under IHL and also the Netherlands itself does not have the means to gather this information) shall not be outsourced to private parties, either.28 Similarly, medical personnel on Dutch missions are always military personnel (sometimes reserve) and translator–interpreters receive a temporary appointment with the army,

25 26 27 28

Answers 20 June 2008, 15. ibid, 7. ibid, above n 12, 20. Reaction 25 April 2008, above n 22, 7; Answers 20 June 2008,ibid, 5, 26.

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and during their operations are always military personnel.29 Generally speaking, the chances that a private contractor might get involved in hostilities must be kept as limited as possible. The government is not opposed to hiring local armed contractors (in fact, it did so in Afghanistan), but this always requires a careful risk assessment and proven care with respect to arms and instructions for using violence (which are part of the contracts), and it must provide a clear contribution to greater effectiveness of the government personnel. Locals hired by the government for the protection of diplomats in unstable countries only have supportive functions within the embassy premises (eg manning entrance checkpoints).

V I . C R IMIN AL RESP ON SIBILITY

A. Mercenary Activities Dutch law does not prohibit mercenary activities as such. The voluntary participating by a Dutch national in an armed conflict abroad or voluntary enlisting in a foreign army of a state with which the Netherlands has no (imminent) armed conflict is not prohibited. Dutch law does prohibit the recruitment (without permission of the state30) in the Netherlands of personnel for a foreign military service or armed conflict, which is an offence. Furthermore, voluntary enlisting by a Dutch national in the army of a foreign state with which the Netherlands is at war (which the national was aware of at the time of enlisting), or similarly when war was imminent and broke out after enlisting, is an offence for that person under criminal law.31 The same applies to armed conflict other than war in which the Netherlands is involved, either in individual or collective self-defence, or to restore international peace and security.32 No prosecutions based on these prohibitions have been reported. A national who voluntarily fights in a foreign army against the Netherlands or its alliances (eg NATO) in principle loses his or her Dutch nationality.33 The Netherlands has not indicated that it will support (or become a party to) the 1989 UN Convention against the recruitment, use, financing and training of mercenaries. The Netherlands does not support the draft convention on PMSCs of the UN Working Group on the use of merce-

29

Answers 20 June 2008, ibid, 17. Dutch Penal Code, Art 205. 31 War Crimes Act (Wet Oorlogsstrafrecht), as amended 10 July 1952, Art 4; see Dutch Penal Code, Arts 87 and 101. 32 Dutch Penal Code, Art 107a. 33 Statute Law on the Dutch Nationality (Rijkswet op het Nederlanderschap), 9 December 1984, Art 15(1)(e). 30

The Netherlands 261 naries, as a new (binding) legal instrument is not deemed necessary.34 The Netherlands joined the (non-binding) Montreux Document on 20 February 2009.35

B. Individual Criminal Responsibility Dutch criminal law is applicable to individuals who have committed certain defined serious crimes outside of the Netherlands, irrespective of the nationality of the perpetrator, based on the principle of universality (however, most of the listed crimes are concerned with threats against the Dutch State and do not seem particularly relevant to the conduct of private contractors abroad).36 The War Crimes Act (which used to include war crimes but for the most part has been replaced by the Act on International Crimes) is concerned with certain crimes in times of armed conflict (relating to treason of the state and collaboration with the enemy) and their prosecution.37 On the basis of the Act on International Crimes, which inter alia implements the crimes in the Statute of the International Criminal Court, individual criminal jurisdiction based on responsibility for grave and other breaches of the Geneva Conventions, AP I, torture and genocide—both in international and in non-international armed conflict—can be exercised against anyone present in the Netherlands (including if a person seeks asylum or refugee status in the Netherlands38), or if the perpetrator is or later becomes a Dutch national, or if the victim is a Dutch national.39 The crimes defined include attacking individual civilians in international armed conflict and attacking individual civilians not directly participating in hostilities in non-international armed conflicts.40 Complicity in war crimes is also a ground for prosecution.41 The Act on International Crimes excludes 34 Letter of the Minister of Foreign Affairs to the Second Chamber of Parliament on the Human Rights Council, 15 September 2010, 5. 35 UN Doc A/63/467-S/2008/636, Annex, ‘Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict’, 17 September 2008, available at www.eda.admin.ch/eda/en/home/topics/intla/humlaw/pse/parsta.html. 36 Dutch Penal Code, Art 4. 37 War Crimes Act, above n 31. 38 See The Hague Court of Appeal cases against Heshamuddin Hesam and Habibulla Jabelzoy, judgments of 29 January 2007 (LJN: AZ7143 and AZ 7147). The appeal in cassation was denied by the Dutch Supreme Court, judgments of 8 July 2008 (LJN: BC7418 and BC7421). 39 Act on International Crimes (Wet Internationale Misdrijven), 19 June 2003. 40 Act on International Crimes, 19 June 2003, Art 5(2)(c.1) and 6(3)(a). 41 See the case of Frans Van Anraat, a Dutch national who was sentenced for complicity in war crimes, Supreme Court 30 June 2009, LJN: BG 4822 (rejecting Van Anraat’s appeal against the conviction in Court of Appeal The Hague, judgment of 9 May 2007, LJN: BA 4676). See further M Zwanenburg and G den Dekker, ‘Prosecuter v Frans van Anraat’ (2010) 104 American Journal of International Law 86.

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the possibility of prosecution with respect to persons who have been granted immunity on the basis of any treaty valid for the Netherlands.42 The same exception applies under common criminal law.43 Apart from the specific crimes against the state and the war crimes (etc) described, Dutch criminal law does not apply to the conduct of local or foreign private contractors in their field of operation. With respect to Dutch nationals, the Dutch penal code can be applicable irrespective of where the crime was committed if, generally, it is a crime according to Dutch law and is also punishable under the laws of the state where it was committed, although double penalisation is not required with respect to certain serious crimes, such as war crimes.44

C. Command Responsibility and PMSCs Dutch military criminal and disciplinary law is only applicable to members of the armed forces. Private contractors hired by the government are not (made) formal members of the Dutch Armed Forces. Command responsibility is recognised as a basis for criminal punishment,45 but there has yet to be a conviction on that basis.46 A subordinate is not liable to punishment if he acted upon an order of his superior which he considered to be valid in good faith and which fell within the boundaries of his tasks as subordinate. This exemption does not apply to superior orders to commit genocide or crimes against humanity.47 The government considers it unlikely that a military commander of the armed forces (present in the area of operation) would be responsible for violations of the laws of war by the conduct of PMSCs. The—factual— question in that regard is whether the military commander through a hierarchical relationship can exercise effective control over the behaviour of the other person as his subordinate (and was aware of that behaviour and could have acted but failed to do so). Generally speaking, this will not be the case in the relationship between the military commander and the member of the PMSC.48 With respect to the local Afghan forces in the ASG hired for the Dutch mission in Uruzgan, the government has indicated that the local forces 42

Act on International Crimes, 19 June 2003, Art 16(b). Art 8 of the Dutch Penal Code stipulates that the applicability of Dutch criminal law is restricted by the exceptions recognised in public international law. 44 Dutch Penal Code, Art 5. 45 Act on International Crimes, 19 June 2003, Art 9. 46 A case (on the basis of the old War Crimes Act) against a Dutch national who allegedly allowed security guards of his timber companies in Liberia to participate in hostilities as members of the armed forces of Charles Taylor ended in a full acquittal. See Court of Appeal The Hague, judgment of 10 March 2008, LJN: BC6068 (Kouwenhoven). 47 Act on International Crimes, 19 June 2003, Art 11. 48 Answers 20 June 2008, above n 12, 23. 43

The Netherlands 263 had to follow the instructions of the International Security Assistance Force (ISAF) commander although formally they were not under ISAF military command and not subject to the Dutch military criminal and disciplinary laws.

D. Immunity from Local Criminal Law In the status agreements between the Netherlands and the host state (like in status agreements between international organisations and the host state), it is common practice that immunity from local criminal law is granted to all personnel, including PMSC personnel, for all activities in the performance of their tasks. It is usually possible to lift immunity of the PMSC (employee) in individual cases. The government has confirmed that, with respect to the local Afghan employees of ASG, the Netherlands can lift immunity in individual cases, eg in case the instructions regarding the use of armed force have been breached.49 Furthermore, the government has noted that the granting of immunity in a contract cannot alter the fact that individual employees of PMSCs bear criminal responsibility for committing international crimes on the basis of international law.50 True as this is, it can be observed that, as long as immunity of PMSCs is arranged in status of forces agreements, it seems treaties not contracts would as a rule govern the immunity issue.

E. Criminal Responsibility and Companies A company with legal personality (and certain partnerships not bearing legal personality) can be subject to criminal punishment;51 fines, also of a punitive nature, can be applied to a company. For example, many of the prohibitions in the field of arms exports and dual-use goods are sanctioned by administrative fines.52 Furthermore, the natural persons who ordered the prohibited behaviour and those who fulfilled an executive function as a matter of fact with respect to the prohibited behaviour can be prosecuted as well (together with their company).53 Dutch law also provides that if an organisation has as its objective to commit (war) crimes anyone participating in such organisation (which

49 50 51 52 53

ibid, 6–7 and 25. Reaction 25 April 2008, above n 22, 11. Dutch Penal Code, Art 51. Economic Offences Act (Wet Economische Delicten), 22 June 1950. Dutch Penal Code, Art 51.

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includes funding and personal/material recruitment activities) can be prosecuted.54

V I I . C OMMERC IAL LAW/C IV IL LIABILITY

A. Choice of Law and Forum A choice of law made in the contract will in principle be upheld by the Dutch courts. In the government contracts with PMSCs, Dutch law is reportedly chosen as the law governing the contract. In the absence of a choice of law, the law of the state with which there is the closest connection would normally govern the contract. However, the Dutch courts have the liberty to examine all the circumstances of the concrete matter and determine the closest connection on that basis instead. Furthermore, certain mandatory rules of national or European law can be applied by the Dutch courts irrespective of the choice of law (based on considerations of protecting the weaker party to the contract). A choice of forum will in principle be upheld in Dutch courts, as well.55 If no choice of forum has been made, the principal rule is that the courts of the defendant are competent.56 In this context, an individual defendant is considered to be Dutch if he has his normal residence in the Netherlands. A company is considered to be Dutch if it has its statutory seat/registered office in the Netherlands (even if its activities are mainly carried out elsewhere).57

B. Freedom of Contract Dutch contract law generally allows considerable freedom to the contracting parties. There are no specific civil law rules on typical PMSC activities. In general, transactions which by their nature or content are contrary to public order or morality are void or voidable.58 PMSC services in general would not fall under this type of transactions unless the contract was clearly meant to serve a prohibited purpose (eg to overthrow a foreign government by armed force). The interpretation of Dutch law governed contracts by a court according to case law must not be based exclusively on the literal wording of the contract, but should also take into account the meaning which the parties to the contract 54 55 56 57 58

ibid, Art 140. The same applies to terrorist attacks, Art 140a. Dutch Code of Civil Proceedings, Art 8. ibid, Art 2. Dutch Civil Code 1:10. Ibid, 3:40.

The Netherlands 265 could (have) reasonably attach(ed) to the clauses of the contract based on their mutual statements and conduct in practice—even though contracts which (also) regulate the legal position of third persons tend to be interpreted more strictly according to their literal wording. Reasonableness and fairness are recognised as a separate source of legal obligations which complement, or in exceptional circumstances even override, the contractual clauses.59 In Dutch commercial practice, a serious and attributable breach of contract is a ground for immediate termination. Contracts of unlimited duration can be terminated without cause on grounds of reasonableness and fairness, but usually a reasonable notice period has to be observed (or payment of equivalent financial compensation made). If the contract has been entered into for a specified term, it cannot be terminated early without cause unless termination has been arranged in the contract, which usually is the case (a notice period is normally to be observed). It has been reported by the government that only one event of early termination of contract with a PMSC has taken place.60

C. Civil Liability In the contracts concluded by the Ministry of Defence, it is reportedly stipulated that the state and its personnel shall not be responsible for any damages which may occur with the PMSC and third parties (including the employees of the PMSC) in connection with the performance of the contract. In principle, PMSCs are responsible for their own actions and have to compensate any victims of their actions. The PMSC has the obligation to arrange for insurance covering the risks that he and his employees run, the costs of which are calculated in the price of the contract.61 This is a standard clause, although the practical importance in this type of agreements is considerably higher than on average in supply services contracts. So far, the government has no indications that it would not be possible for the PMSCs to cover their risks on the (international) insurance market.62 The government has indicated that, although it is not responsible, it still can decide on a case by case basis to compensate any victims of the conduct of PMSCs ex gratia. Considerations of force protection and own fault are criteria used in that decision.63 If the PMSCs fail to perform under the contract, the government can hold them liable for the damages which result from the non-fulfilment 59 60 61 62 63

Ibid, 6:248. Answers 20 June 2008, above n 12, 14. Reaction 25 April 2008, above n 22, 10. Answers 20 June 2008, above n 12, 22. ibid, 24.

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of their obligations.64 The fact that the PMSC can terminate the contract or decide not to renew it according to the government is one of the reasons why private contractors can never (fully) replace government forces in areas of operation.65 In contracts with PMSCs where the use of armed force is or may be ‘part of the job’, the contract stipulates that the restrictions placed by the Dutch government on the use of armed force shall be strictly observed. This includes compliance with international law, including the laws of war and human rights.66 In practice, an action for breach of contract would no doubt be combined with a tort claim. The general tort law clause in Dutch law is broad (it includes breach of a duty of care towards any others’ person or goods)67 and therefore readily allows for an action for damages. Most of the time the tort action shall be governed by the same law that is chosen in the contract because it is closely linked to that contract, but in the absence of a written contract (or an express choice of law through other means) the tort action may be governed by the laws of the state where the tort was committed.68

D. State Immunity before the Civil Courts With respect to immunity of the Dutch state before the civil courts, case law shows that the courts look at the nature of the contracts rather than its purpose. This means in brief that if a contract by its nature is commercial and the (foreign) government has entered into it on the same footing as a private party, the possible ‘public’ purpose in principle cannot prevent the exercise of jurisdiction. Legal actions concerning monetary claims against the state are admissible in principle. Furtherreaching applications to the courts, in particular claims to order the state to display particular conduct or to prohibit the state from displaying particular (future) conduct, could be admissible as well, but, if so, the civil court would exercise utmost judicial restraint in its assessment. It is established case law that the courts do not make political assessments and should allow the government sufficient room for manoeuvre with respect to (future) policy decisions in the field of foreign affairs and defence.69 The possibilities for enforcing judgments against a foreign state are 64

Dutch Civil Code 6:74. I leave aside a discussion of force majeure or other defences. Reaction 25 April 2008, above n 22, 4, 5. 66 ibid, 10. 67 Dutch Civil Code 6:162. 68 Act on the conflict of laws regarding tort claims (Wet Conflictenrecht Onrechtmatige Daad), 11 April 2001, Arts 3–6. 69 A case in point is Supreme Court ruling in Association of lawyers for peace and others v State of The Netherlands, 6 February 2004 (NJ 2004/329). 65

The Netherlands 267 even more limited (in particular, seizure of assets for the public services is prohibited by law).

V III. C ASE LAW

No Dutch case law on mercenary activities or activities involving PMSCs in armed conflict abroad has been reported.70 According to the government, no incidents have occurred in which private contractors hired by it have claimed victims. Still, the government has stated that it must be prevented that a private contractor can go unpunished in an area of operation due to a lack of jurisdictional powers.71 The public prosecutor has already proved to be willing to initiate proceedings against a Dutch sergeant major (marine corps) for allegedly breaching his use of force instructions which allegedly resulted in the killing of a civilian in the area of operation (in Iraq; this case did not result in a conviction).72 In addition, Dutch law offers the possibility of initiating proceedings against the state based on tort actions and complaints for failure to prosecute.73

I X. T H E D UT C H GOV ERN MEN T P OSITION ON T H E STATUS OF P MSC S

According to the government, in the event of an armed conflict the status of private security personnel not in the service of the army with the Ministry of Defence depends on the circumstances in each case. The government has signalled that ‘persons accompanying the armed forces’ are a category under IHL if the private contractors have an authorisation and an identity card from the armed forces they accompany, but no such identity cards have been provided according to the Ministry of Defence. It has also indicated that use can be made of reservists or temporary military personnel if, for example, specialists such as helicopter mechanics, interpreters, medical personnel or agricultural specialists are needed in an area of operation. However, according to the government, the circumstances will usually be such that the private contractors can be considered civilians under IHL. 70 According to the government, there are no known cases of criminal proceedings with regard to Dutch private contractors; see Answers 20 June 2008, above n 12, 25. 71 ibid, 6. 72 Court of Appeal of Arnhem, judgment of 4 May 2005, LJN: AT4988 (Eric O). 73 Art 12 of the Dutch Code of Criminal Proceedings gives a general right to the directly interested party (including organised interest groups) to issue a complaint to the Courts of Appeal against the state for not prosecuting a (legal) person or for not continuing a prosecution.

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This is also the status favoured by the government: it has indicated to the parliament that personnel of private contractors enjoy the protection offered by IHL to civilians. Like other civilians, they lose this protection when and as long as they engage in direct participation in hostilities. As the government has put it, in principle the use of armed force in self-defence is not covered by the notion of direct participation. After all, a direct connection between the use of armed force and the armed conflict as a rule is absent when a private contractor uses their arms in self-defence. Such use of armed force is not directed at harming the enemy but at self-protection instead.74

The use of armed force out of self-protection would not be punishable under Dutch criminal law on the ground of self-defence (the attack would be illegal because the private contractor attacked is a civilian).75 Of course, the statement of the government cannot solve the problem that there may be a thin line between defending oneself individually and defending a military object against an attack by a party to the conflict (which would come down to denying the enemy a military advantage and thus could be considered to constitute direct participation). Under Dutch law the contractor’s defence against a legitimate attack arguably could be justifiable on the ground of force majeure or distress (in the meaning of the choice to preserve one’s own life at the cost of harming another).76

X . P MS C S AND C OMBATIN G P IRAC Y AT SEA

The Netherlands has contributed to maritime efforts to combat piracy off the Somali coast since 2008.77 It seems that the government considers the use of armed private contractors to deter piracy at sea to be a risk rather than a useful contribution to the solution of the problem of the piracy threat. The Minister of Defence has underlined the possibility of using military protection teams (so-called Vessel Protection Detachments) onboard ships to protect against piracy, albeit only in exceptional circumstances.78 74

Answers 20 June 2008, above n 12, 21 (author’s translation). Dutch Penal Code, Art 41 (noodweer). Under extreme circumstances, the ground of excessive self-defence (noodweerexces; Dutch Penal Code Art 41, s 2) arguably could be invoked to exclude the defender’s culpability. 76 Dutch Penal Code Art 40 (overmacht/noodtoestand). This ground does not require that the attack against which defence took place was itself illegal. 77 See Advisory Counsel on International Affairs Report No 72, ‘Combating Piracy at Sea, a Reassessment of Public and Private Responsibilities’ (December 2010) 22, available at www.aiv-advies.nl (hereinafter AIV Report December 2010). 78 See letter of the Minister of Defence to the Second Chamber of Parliament, 32706, No 1, 15 March 2011. 75

The Netherlands 269 Dutch law, which is also applicable on ships flying the Dutch flag, prohibits the use of private armed forces onboard as it prohibits the carrying of arms by private persons (without a special permit). In addition, the state monopoly on the use of force is also at stake in this context, for the use of private armed guards onboard would seem to conflict with the regular situation that in a state’s legal order the police are to ensure the safety of the people and their property, if necessary with the assistance of the armed forces. The Advisory Counsel on International Affairs has advised that stationing armed guards onboard Dutch ships should be permitted in exceptional circumstances and under strict conditions.79 The government has indicated that it will not follow this advice for now, and that more research is needed.80 Interestingly, the prospect of a serious risk of piracy attacks has been labelled as a highly exceptional situation in which a permit can be granted for a handgun for personal self-defence to a person onboard a Dutch merchant ship.81 The Netherlands was the first Western country to successfully prosecute and try Somali pirates.82 The legal basis was universal jurisdiction over piracy.83

XI . H I R I NG OF D UTC H P MSC S BY N ON -STATE AC TOR S OR F OREIGN GOV ERN MEN TS

As long as recruitment by or of Dutch PMSCs is not tantamount to hiring personnel for foreign military service or armed conflict (and without consent of the state), it is not prohibited by Dutch law. Under international law, the state has the obligation to ensure respect for human rights and IHL and on that basis may arguably have a ground to interfere in the commercial export of PMSC services, but it is likely that hiring by other entities (especially by non-state actors such as private companies) is out of the government’s sight. Furthermore, although private parties in the Netherlands are not allowed to possess or carry firearms, arms may be provided through regular arms trade, may already be present in the conflict area or may become available through illegal channels. National law (as yet) does not have an answer to that, also because most of the time there is (almost) no monitoring system in place in conflict areas. With respect to individual criminal liability, the Dutch nationality of the individual or the company provides a sufficient jurisdictional link. 79

See AIV Report December 2010, above n 77, 32. Letter of the Ministers of Foreign Affairs and Defence to the First Chamber of Parliament, 1 April 2011, 4. 81 Policy Guidelines on Arms and Ammunition, 15 July 2005, para 6. 82 Rotterdam District Court, judgment of 17 June 2010, LJN: BM 8116. In this case there were no PMSCs involved. 83 Dutch Penal Code, Arts 381–85. 80

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Still the question is whether, in the absence of any monitoring system in place, violations of the laws of war or fundamental human rights will reach the (host) state authorities and, if so, whether they are able and willing to prosecute. The government, which is of the opinion that extension of Dutch criminal legislation with respect to PMSCs is not necessary,84 has indicated that it will keep close track of international developments, also in order to prevent a unilateral approach (with possible negative consequences for the conclusion of contracts with private firms).85

X I I . C ON C LUDIN G REMARK S

There are no specific laws in the Netherlands governing the offering and providing of services by PMSCs abroad. Therefore the contract is the main source for the legal relationship between the hiring entity and the PMSCs. As yet, the number of Dutch PMSCs offering (armed) services in conflict areas abroad appears to be very small. PMSCs that are hired to provide services that include the carrying of arms (eg guarding and patrolling in Afghanistan) may use their arms in self-defence only—which, according to the government, does not amount to a direct participation in hostilities—and are bound to instructions regarding the use of armed force in their contracts. The obligations to observe human rights law and the laws of war are part of the contracts as well, although they are set in general terms and have not been further specified. Breach of contract may result in termination of the contract as well as legal actions for the recovery of damages (also based on tort). PMSCs hired by the government have to arrange proper insurance and in principle are responsible for any damage done to third parties. Dutch criminal law provides a jurisdictional basis for prosecuting Dutch offenders and, irrespective of nationality and place, any person if the crimes constitute war crimes or crimes against humanity and were committed against a person with the Dutch nationality or if the defendant is present in the Netherlands. The Dutch government has issued policy statements regarding its hiring of PMSCs in conflict areas abroad. Although the government contracts are not disclosed, the statements indicate that the government maintains the monopoly on the use of force in all circumstances and will not outsource essential tasks of the army. According to the government, PMSCs should be regarded as civilians under IHL, and the outsourcing of tasks which may involve actions that might jeopardise this status 84 85

See Reaction 25 April 2008, above n 22, 11. ibid, 3.

The Netherlands 271 should be avoided. Therefore, private contractors are not hired for tasks involving offensive actions, including the operation (at a distance) of weapons systems. Similarly, the use of armed PMSCs onboard merchant ships to deter attack from pirates is not supported by the government. So far, no incidents have been reported involving victims of Dutch private contractors or of private contractors hired by the Dutch government. However, it can be observed that mechanisms for monitoring compliance with IHL and human rights law on-site do not seem to be really developed.

13 Spain JOANA ABRISKETA

I . I NTRODUC TION

I

N SPAIN THERE are no laws specifically regulating the activities of PMSCs. The Spanish government has not systematically and specifically addressed the issue of the involvement of PMSCs in Spanish military missions abroad, something that is much needed, especially taking into account the increasing complexity of security issues and the tendency to privatise and externalise—without any apparent limit1— many services previously provided by the state. The presence of Spanish troops in international missions (especially under the UN and the EU) in countries like Bosnia & Herzegovina, Lebanon, Afghanistan, Haiti and Somalia has increased during the last decades and the legislation regarding this issue cannot deal sufficiently with this reality. Security represents one of the basic pillars of coexistence and its guarantee constitutes an essential activity of the existence of the modern state itself, which as such is provided under a monopoly regime by the public administration.2 Likewise, military activities are taken as the monopoly of the state, which could not be exercised if private armed forces are legitimised.3 Since issues such as defence and the armed forces are in the exclusive competence of the state (Article 149.1.4 of the Spanish Constitution), private armies would question popular sovereignty and real compliance of the state with rights and liberties.

1 L Parejo, preface to the book of M Izquierdo, La seguridad privada: régimen jurídicoadministrativo (Valladolid, Lex Nova, 2004) 11. 2 Act 23/1992 on Private Security, 30 July 1992 [Ley 23/1992, de 30 de julio, de Seguridad Privada], BOE No 186, 27116–22. 3 L Cotino, El modelo constitucional de las Fuerzas Armadas (Madrid, Instituto Nacional de Administración Púbica, Centro de Estudios Políticos y Constitucionales, 2002) 277.

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Joana Abrisketa I I . T H E L EGAL FRAMEWORK : P RIVATE S E C UR I T Y AS C OMP LEMEN TARY AN D S UB OR D IN ATE TO P UBLIC SEC URITY

As there is no legal framework regulating PMSCs services, this chapter is based on the analysis of the legislation of private security as it is understood in Spanish law. The main domestic instruments regulating private security are the Spanish Constitution of 6 December 1978, the Organic Act on the Protection of Citizens’ Security of 21 February 1992,4 the Act on Private Security of 30 July 19925 and the more recent Organic Act on National Defence of 17 November 2005,6 together with a number of regulations developing the details of the aforementioned regulations, specifically the 1994 Regulation on Private Security7 and its reforms. In general terms, it could be said that the sector of private security in Spain is regulated by an intricate normative framework. Taken as a starting point, the Spanish Constitution attributes to the Security Forces and Corps, under the dependency of the government, the mission of protecting the free exercise of rights and duties and to guarantee security among citizens (Article 104.1).8 Given that security is one of the most basic human rights,9 its guarantee is a monopoly of the state, who carries the ultimate responsibility. An Organic Act defines the functions and basic principles of the Security Forces and Corps (Article 104.2).10 As it is essentially a public question, the Constitution recognises that the competence of the state in this is exclusive (Article 149.1.29). Thus the control and the maintenance of security are assumed exclusively by the public organs. In fact, private security falls into the category of public security when it comes to the distribution of competences between the autonomous communities and the state. The Act on Private Security specifically states that private security services are considered as ‘complementary and subordinate’ to public security (as stated in both the preamble and Article 1.1 of this instrument). Taking into consideration its complementary nature to 4 Organic Act 1/1992 on the Protection of Citizens’ Security, 21 February 1992 [Ley Orgánica 1/1992, de 21 de Febrero, sobre Protección de la Seguridad Ciudadana] BOE No 46, 22 February 1992, 6209–14. 5 Act 23/1992, above n 2. 6 Organic Law 5/2005 on National Defence, 17 November 2005 [Ley Orgánica 5/2005, de 17 de noviembre, de la Defensa Nacional], BOE No 276, 37717–23. 7 Royal Decree 2364/1994, of 9 December, approving the Regulation of Private Security [Real Decreto 2346/1994, de 9 de diciembre, que aprueba el Reglamento de Seguridad Privada], BOE No 8, 10 January 1995. 8 ME Casas Baamonde, M Rodriguez-Piñero, Comentarios a la Constitución española, Aniversario (Madrid, Fundación Wolters Kluwer, 2009). 9 See Art 3 of the Universal Declaration of Human Rights (1948): ‘Everyone has the right to life, liberty and security of person’ (emphasis added). 10 Organic Act 2/1986, of 13 March, on Forces and Corps of Security [Ley Orgánica 2/1986, de 13 de marzo, de Fuerzas y Cuerpos de Seguridad], BOE No 63, 9604–16.

Spain 275 public security, private security is an instrument the state may use in order to ensure public security.11 Thus, in the field of private security, the state seeks to put into place a very strict and interventionist system of control and strong administrative safeguards. Private security companies and personnel can exclusively deliver the activities and services established within the Act. The term ‘complementary’, as it is recognised in the Act 23/1992 on Private Security, is contradictory to the proclaimed ‘monopoly’ of the state. The substantive provisions of the Act on Private Security aims to combine both aspects—complementary and subordinate—stipulating that private security services will always be conducted under the strict supervision of the administration. Spanish law is not applicable to the exportation of security services since it emphasises the complementary aspect of the security companies in relation to the Security Forces and Corps (which do not provide military services). In order to carry out their functions, private security personnel must have authorisations beforehand from the Ministry of Interior.12 Thus, private security is conceived as domestic security for operations in Spain.13 This has met with strong opposition from some Spanish companies that would like to enter the private security business but are not allowed. Nevertheless, to operate in a sovereign state, authorisation from the state itself is required. (And the participation of PMSCs in Spanish military missions should never be in coincidence with troopcontributing nations.) In the case of Spain, these companies are not allowed to operate autonomously in its areas of responsibility except with the authorisation of the sovereign country and for its benefit, and without any interference with Spanish tasks. In other words, they can provide security to people and facilities, but not in military missions.

A. Legal Definition of Security Services The Act on Private Security articulates the faculties that citizens can have to create and use private security services, thus it opens margins for coordinated and joint action between the public administration and the companies. The model adopted gives space to maintain, on the one hand, the power of the companies, and on the other, the obligations imposed on them. The Spanish Interior Ministry has stated that collaboration is not equivalent to privatisation since the delegation of ownership does 11

Izquierdo, above n 1, 44. Act 23/1992, Arts 2 and 7; Royal Decree 2364/1994, Arts 2–13. Regulation of Private Security, Arts 3 and 55bis, modified by the Royal Decree 4/2008 of 11 January [Real Decreto 4/2008 de 11 de enero, por el que se modifican determinados artículos del Reglamento de Seguridad Privada], BOE No 11, 12 January 2008, 2280–89. 12 13

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not take place in such a way that public management disappears. Insofar as the objectives of private security are fulfilled, they are contributing, at least indirectly, to the attainment of greater public security. Private security is understood as a service characterised by two elements: on the one hand, its object, ie surveillance and security of persons and goods; and on the other hand, the subjects who provide it, ie private security companies and security personnel.14 Private security is described as a business activity which, by means of a contract, puts at the disposal of the contracting party a range of human, technical and organisational resources in order to protect goods and services.15 The activities which security companies can develop are specifically stated in the law and expressed in restrictive terms, since it states that the companies will ‘exclusively’ be allowed to provide and develop the activities laid down in the Act. Nevertheless, the Act on Private Security leaves doors half opened, such as surveillance in public buildings and surveillance and protection of centres and facilities which are either military in nature or which belong to the Ministry of Defence and in which members of the armed forces serve or which are destined for use by the aforementioned personnel. Security companies can only provide the services and activities established in the Act and its Regulation. Private companies can develop services such as surveillance and protection of goods, establishments and entertainments, protection of specific persons (following authorisation), deposition, custody and transport of money and objects which require special protection, and installation and maintenance of security machines and systems.16 Act 23/1992 indicates that, when the security companies provide services for which the use of arms is required, they must adopt measures to guarantee their safekeeping, use and operation. The Regulation of 1994 regulates more precisely the provision of services with arms, depending on the nature of the services or the characteristics of the establishments, entities, organisations or buildings to be protected.17 It must be emphasised that the legal tool which really opens the door to the eventual participation of PMSCs is the 1994 Regulation of Private Security, due to the fact that it contains a chapter regulating the provision of services with firearms. In accordance with the Act, security guards can only use firearms in the fulfilment of specific services, among which we can emphasise for 14 The term ‘security personnel’ can be broken down into different groups: the security guards, security managers, bodyguards, forest rangers and private detectives. 15 JJ Sánchez Manzano, Seguridad Privada. Apuntes y reflexiones (Madrid, Dilex, 2001) 25. 16 Art 5 of Act 23/1992. 17 Art 81 of the Regulation, above n 7.

Spain 277 the purposes of the present chapter those of monitoring and protection of centres and facilities which are either military in nature or belong to the Ministry of Defence and in which members of the armed forces serve or which are destined for use by the aforementioned personnel. Even if Spanish practice does not offer any clear example of the use of this Article abroad, the possibility exists. The Regulation also refers to the deposit of arms.18 The security guards will not be able to carry the arms outside of the working hours and premises when and where they provide the service, with the arms having to be deposited the rest of the time in the armouries of the work places or, if there are none, in those of the security company. Exceptionally, at the beginning and end of the security contract, or when there is a need for special or supplementary services or obligatory target practice exercises, they will be allowed to carry the arms on the way there and back, following authorisation by the head of security or, in his absence, by the person in charge of the security company, who will have to follow the formalities determined by the Ministry of Justice and Interior, handing them over for deposit in the corresponding armoury.

B. Subjects and Licence Required for Conducting Private Security Services Act 23/1992 on Private Security distinguishes two actors—private security companies and private security personnel19—and incorporates a series of modifications with the aim of fulfilling the 1999 Sentence of the Court of Justice of the European Communities.20 (i) Private Security Companies The activity of private security companies (PSCs) is subject to an administrative licence by the Ministry of the Interior and to the registration of the company in a Registry of Private Security Companies created within the Ministry of the Interior.21 Both the licensing and the registration of the relevant company are subject to strict requirements established in the law. Should any company fail to comply with these requirements once registered and operating, the Minister of the Interior can cancel the registration and the licence to operate.22 Moreover, every PSC must submit an annual report on its activities to the Ministry of the Interior. 18 19 20 21 22

ibid, Art 82. Arts 5 to 7 of Act 23/1992. ibid, Arts 10–20. ibid, Arts 5 and 7.1; Art 2 of the Regulation, above n 7. Art 7.3 of Act 23/1992.

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Such a report will contain a list of the contracts with third parties for the delivery of private security services, the name of the person with whom the contract was signed, the nature of the service to be delivered and any other relevant information. On the basis of the reports submitted by the PSCs, the Ministry of the Interior must inform the Spanish parliament about the functioning of the sector.23 These reports and the information to be provided to the parliament, if followed rigorously, are an excellent means for control of the sector and for the detection of any irregularities in its functioning, with a view to proposing and implementing any necessary changes. (ii) Private Security Personnel In order for private security personnel, comprising security guards, security chiefs and private bodyguards, private field guards and private detectives, to be authorised to develop their functions, they must first obtain a certificate of authorisation from the Ministry of the Interior, which is an administrative authorisation, given at the request of the interested person. The candidate must be of adult age, not have reached the maximum age prescribed and pass aptitude tests demonstrating the necessary knowledge and capacity to exercise the functions of the position. Act 23/1992 on Private Security was modified in 1999 with the aim of fulfilling the judgment of 29 October 1998 of the Court of Justice of the European Communities. The Court analysed the compatibility of the regulation established in the Spanish Act of 1992 with European law and considered that in this case the exception of public order does not cover the privation of the freedom of circulation of workers, and of the establishment and provision of services within the European Union, anticipated in Articles 48, 52 and 59 of its former Constituent Treaty. As a result of this, the Articles of Act 23/1992 on Private Security affected by it were reformed by Royal Decree-Law 2/1999.24 Since the reform, security companies that provide services with security personnel must be a national of an EU Member State or of a state participating in the European Economic Area Agreement. Also, according to the principle of free provision of services in Community law, the administrators and directors of the security companies that appear in the Registry must be physical persons resident in the territory of one of the EU Member States or a state participating in the European Economic Area Agreement. Royal Decree-Act 2/1999 establishes that obtaining a permit and the 23

ibid, Art 2.4. Royal Decree-Law 2/1999, of 29 January, modifying Act 23/1992, of 30 July, on Private Security, single Article [Real Decreto-Ley 2/1999, de 29 de enero, por el que se modifica la Ley 23/1992, de 30 julio, de Seguridad Privada], BOE No 26, 30 January 1999, 4327–28. 24

Spain 279 provision of services will require ‘having the nationality of one of the Member States of the European Union or of a State participating in the European Economic Area Agreement, necessary medical fitness and psychological capacity for the exercise of the functions’.25 The contracts for provision of the different security services will have to be made in writing, in accordance with an official model, and must be communicated to the Ministry of the Interior at least three days prior to the initiation of such services. The 1994 Regulation on Private Security lays down the specific requirements which must be fulfilled in order to get the permit.26 The majority of the requirements, it should be said, are obvious. However, it is notable that those who provide their services to security companies must not have been expelled from service in the Armed Forces or the Security Forces and Corps. This could be interpreted to read that whoever has served in the Armed Forces or the Security Forces and Corps is permitted to serve in private security companies as long as they have not been excluded from the public institution. In the same way, the requirement that in the two previous years personnel should not have undertaken functions of control, services or activities of security as members of the Security Forces and Corps opens up the possibility that those who have worked in the public institutions can go on to serve in these private companies.

C. Scope of Application The general rule on the scope of spatial application of the Act of 1992 states that ‘except for the function of protection of the transport of money, documents, goods or objects, security guards will exclusively practise 25

ibid, single Article. Amended by Royal Decree 4/2008, of 11 January. For the licensing of the personnel and at all times for the provision of private security services, the personnel will have to meet the following general requirements: (i) to be of adult age. (ii) To have the nationality of one of the Member States of the European Union or a state participating in the European Economic Area Agreement. (iii) To possess the necessary medical fitness and psychological capacity for the exercise of the respective functions without suffering from any condition that prevents the exercise of the same. (iv) To not have criminal record. (v) To not have been convicted for illegal interference in the area of protection of the right to honour, or to personal and family privacy and the rights to one’s own image, to the privacy of communications or other fundamental rights in the five years prior to the application. (vi) To not have been sanctioned in the previous two or four years, respectively, for serious or very serious infractions in questions of security. (vii) To not have been expelled from service in the Armed Forces or the Security Forces and Corps. (viii) To not have practised control of the bodies, services or activities of private security, surveillance or investigation, nor of its personnel or means, as a member of the Security Forces and Corps in the two years prior to the application. (ix) To pass the tests that accredit the necessary knowledge and capacities to exercise the respective functions. 26

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their functions within the buildings or properties which they are in charge of monitoring’.27 Thus, in principle, such functions cannot be carried out in public thoroughfares. However, the Law of 1992 introduces an exception, when declaring that ‘in the case of industrial estates or isolated housing developments, monitoring and protection services can be carried out’.28 There is thus the possibility that, via a loophole, these companies can carry out their services in a public thoroughfare. The application of this exception to Spanish practice might be the object of more exhaustive analysis.

I I I . R E G ULATION OF ARMED FORC E

A. Possession and Use of Arms The possession and carrying of (fire)arms is controlled by the government. The two main internal instruments regulating the possession and use of arms are the 1992 Organic Act 1/1992 of 21 February, regarding the protection of citizens’ security,29 and Royal Decree 137/1993 of 29 January, approving the regulation of arms.30 Accordingly, Organic Act 1/1992 on Protection of Citizens’ Security provides that the administration of the state will establish the requirements and conditions of manufacture, commerce, possession and use of arms, and authorises the government to regulate the matter and to establish the necessary measures of control and attributes for the Interior Ministry to exercise competence in the matter. The regulation of arms defines and classifies the arms regulated and prohibits the manufacture, importation, circulation, advertising, purchase, sale, possession and use of a range of arms. It regulates the conditions of production and repair of arms, their imitations, and every matter regarding the transit, storage, trade, acquisition, possession and use. It also determines the necessary measures in order to control the accomplishment of the conditions and prohibits the production, import, circulation, publicity and trade of certain arms. There is a licensing system in place (eg for sports and hunting). The competences to intervene and inspect in this area are allocated to the Interior Ministry, through the Directorate General of the Civil Guard to guarantee public security; to the Ministry of Defence, in its function 27

Art 13 of Act 23/1992. ibid. 29 Organic Act, above n 4. 30 Royal Decree 137/1993, of 29 January, which approves the Regulation of Arms [Real Decreto 137/1993, de 29 de enero, que aprueba el Reglamento de Armas], BOE No 55, 5 March 1993). See Arts 4.5 and 6 of the Regulation. 28

Spain 281 of safeguarding national security; to the Ministry of Industry, in the regulation and management of the licences of importation and exportation of arms; and to the Ministry of Foreign Affairs, in the authorisation of transit through Spanish territory of arms and ammunition coming from abroad.31 The establishments dedicated to the manufacture, assembly, storage, distribution, sale or repair of any class of firearms or their fundamental parts must adopt the appropriate safety measures established in the Regulation. With regard to special licences and authorisations, nobody will be able to carry or possess firearms in Spanish territory without the corresponding authorisation issued by the administrative agencies to which the Regulation gives competence. The application for a permit to bear arms must be presented together with the following documentation: a record of current criminal convictions; a photocopy of the national identity document; and a report on psycho-physical aptitudes. The bodies responsible for the procedure prepare a report on the behaviour and history of the individual in question, which is passed to the authority competent to resolve any issues. The Spanish Criminal Code regulates and sanctions crimes of possession, trafficking and stockpiling of arms, ammunition or explosives,32 and would be entirely applicable to members of PSCS.

B. Arms Export the Control of the Foreign Trade of Defence and Dual-use Material The export of arms from Spain and the transit of military goods across Spain are regulated by various domestic laws and regulations. The rules are based on: Council Regulation (EC) No 428/2009, of May 2009, which sets up a Community regime for the control of exports, transfer, brokering and transit of dual-use items;33 Act 53/2007, of 28 December 2007, on the control of the foreign trade of defence and dual-use material;34 and Royal Decree 2061/2008, of 21 December 2008, which approves the Regulation

31

Art 7 of the Regulation, above n 7. Organic Act 10/1995, of 23 November, of the Criminal Code, Arts 563 to 570 and 577 [Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal], BOE No 281, 24 November 1995, 33987–4058. 33 We consider dual-use material to be that which can be used for both military and civil services. 34 Act 53/2007, of 28 December, on the control of the foreign trade of defence and dual-use material [Ley 53/2007, de 28 de diciembre, sobre el control del comercio exterior de material de defensa y de doble uso], BOE No 312, 29 December 2007, 53670–76]. 32

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on the control of foreign trade in defence materials, other materials and dual-use technology.35 Act 53/2007 on the control of foreign trade of defence and dual-use material was the first Act regarding the control of the arms trade, as until 2007 this trade was governed by a Regulation. Its aim is to prevent the illicit traffic and proliferation of armaments and sensitive technologies to states or non-state actors likely to act against peace and security, or to become involved in terrorist activities. Also, it seeks to respond to a significant political and social demand for control of arms trading.36 It establishes a series of measures of control and transparency. In this framework, each semester the Spanish government must send to parliament the pertinent information on exports and must appear annually before the parliament to inform it on the statistics for the periods of reference. The Act is applied to any physical or legal person who habitually or occasionally carries out the transactions described in Spanish territory. The transfer of defence and other material, and dual-use technology and products will be carried out via administrative authorisation. For each authorisation, it must be established whether it is appropriate to establish mechanisms for verification, follow-up and collaboration between governments. However, there is no need for administrative authorisation for transfer of defence material that is going to be used by the armed forces or security forces and corps of the Spanish state in their manoeuvres or missions that take place abroad in the pursuit of humanitarian operations or support of peace missions. It falls to the Ministry of Industry, Tourism and Commerce to rule on authorisation requests regulated by Act 53/2007. Authorisation requests will be refused and authorisations suspended or revoked in the following cases: • When there are reasonable indications that the defence material or dual-use products and technologies can be used in actions that disturb the peace. • When the general interests of national defence and the foreign policy of the state are contravened. • When they break the regulations of the European Union and other relevant international dispositions of which Spain is a signatory. With respect to the criminal and sanctioning system, besides that 35 Royal Decree 2061/2008, of 12 December, which approves the Regulation of control of the foreign trade of defence and other material, and of dual-use products and technology [Real Decreto 2061/2008, de 12 de diciembre, por el que se aprueba el Reglamento de control del comercio exterior de material de defensa, de otro material y de productos y tecnologías de doble uso], BOE No 6, 7 January 2009, 1217–325); Royal Decree 137/1993, above n 30. 36 Stated in the preamble.

Spain 283 established in the Criminal Code as regards the traffic of arms, Organic Law 12/1995, of 12 December, regarding the Suppression of Smuggling,37 is applied, which considers a crime or an administrative infraction the exportation without authorisation, or with fraudulently obtained authorisation, of dual-use or defence material.

I V. NE W R ULES AGAIN ST P IRAC Y

Protecting commerce and navigation against piracy has been a challenge in Spanish history since the fifteenth century. Although the field is not new, since the beginning of the twenty-first century, the interest in piracy has flourished as a result of a growing concern from shipowners and the public. Piracy has been a constant concern, but the combination of two factors has recently contributed to the growing need to address this problem: the intensity with which it has affected Spanish tuna boats—a powerful industry in Spain—over the last decade, and the fact that it has turned into an organised and strong strategy which in many cases constitutes a means of survival. Thus, a new and specific normative rule needed to be incorporated to the applicable general law, which posed the problem of its location within the existing normative framework (regarding both public law and private law). Above all, problems arose concerning the exercising of the competences onboard and the responsibility of the captain in his capacity as representative of the flag state. Consideration had to be given to such aspects as the relations of dependence between the captain and the security personnel, and the competence regarding security within the ship. The 2009 attacks on Spanish fishing boats carrying out their activity in waters subject to special high-risk situations for the life and integrity of their crew—especially the case of the Alakrana—advised the adoption of measures aimed at improving specifically the security of such boats. The aforementioned attacks took place in international waters off the coast of Somalia, using war weapons which required the use of defence and prevention measures proportionate to the means of aggression. It became necessary to modify the Regulation of Private Security and the Arms Regulation so as to allow the delivery of security aboard merchant ships and fishing ships sailing under Spanish flag so that

37 Organic Law 12/1995, of 12 December, regarding the Suppression of Smuggling [Ley Orgánica 12/1995, de 12 de diciembre, de Represión del Contrabando], BOE No 297, 13 December 1995, 35701–05.

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security could be provided by security companies’ personnel, by the duly controlled use of the appropriate armament.38 Under the initiative of the Minister of Defence and following a proposal by the Minister of the Interior, two Articles of the Regulation on Private Security were modified.39 Among the services security guards can develop using firearms were included ‘services of surveillance and protection of merchant boats and fishing boats sailing under Spanish flag in waters where there is a high risk for the safety of the people or the goods, or for both’.40 In such situations, private security guards will be allowed to carry and use war weapons for the delivery of services of protection of people and goods, preventing and repelling attacks and with the characteristics, in the conditions and with the requirements jointly determined by the Ministry of Defence and the Ministry of Interior.41

The modification of the Arms Regulation implies the establishment, following the joint proposal of the aforementioned ministries, of the terms and conditions for the possession, control, use and acquisition of war weapons by private security companies, together with the characteristics of such weapons.42 The coverage of the licence for war weapons of category C used in the delivery of private security services onboard the vessels is also modified and extended.43

V. C R IMIN AL RESP ON SIBILITY

A. Breaches ruled by Act 23/1992 on Private Security The Act 23/1992 of Private Security establishes a distinction between infractions committed by the companies and those committed by the security personnel. In both cases infractions of the norms contained in 38 Royal Decree 1628/2009, of 30 October, modifying the Regulation of Private Security and the Arms Regulation [Real Decreto 1628/2009, de 30 de octubre, por el que se modifican determinados preceptos del Reglamento de Seguridad Privada, aprobado por Real Decreto 2364/1994, de 9 de diciembre, y del Reglamento de Armas, aprobado por Real Decreto 137/1993, de 29 de enero] BOE No 263, 90892–95 and Ministerial Order 2914/2009, of 30 October, which develops the Royal Decree 1628/2009, of 30 October [Orden PRE/2914/2009, de 30 de octubre, que desarrolla lo dispuesto en el Real Decreto 1628/2009, de 30 de octubre, por el que se modifican determinados preceptos del Reglamento de Seguridad Privada, aprobado por Real Decreto 2364/1994, de 9 de diciembre, y del Reglamento de Armas, aprobado por Real Decreto 137/1993, de 29 de enero], BOE No 264, 2 November 2009, 9114–17. 39 Arts 81 and 86 of the Regulation, above n 9. 40 Art 81.1.c.9 of Royal Decree 1628/2009, above n 38. 41 ibid, Art 86.4. 42 Art 6 of the Arms Regulation, above n 30. 43 ibid, Art 124.

Spain 285 the Act can be categorised as very serious, major or minor. The distinction between the three types of infractions is based on the legal interest protected. Among the very serious infractions security companies can incur are the provision of security services to third parties, without the necessary permit, or the breach of the normative provisions on the acquisition and use of arms. Among the major infractions is the provision of security services without formalising the corresponding contracts or communicating them to the Interior Ministry. Minor infractions are identified as actions of the security personnel without due uniformity or breach of the procedures laid down in the Law which do not constitute a serious or very serious infraction.44 With regard to the personnel who perform functions of private security, they can incur very serious infractions by providing security services to third parties without belonging to a security company or without the necessary permit. Serious infractions are associated with the provision of functions or services that exceed the permit obtained. Minor infractions include acting without the uniformity or media laid down in law.45

B. Legislation on Enlistment of Nationals in Foreign Armed Forces Spanish law does not prohibit mercenary activity as such, nor the enlistment of nationals in foreign armed forces. Voluntary participation by a Spanish national in an armed conflict abroad or voluntary enlisting in a foreign army of a state with which Spain has no (imminent) armed conflict is not prohibited. Spain has not indicated that it will support (or become party to) the 1989 UN Convention against recruitment, use, financing and training of mercenaries. The Spanish Criminal Code governs the crimes of treason against peace or the independence of the state, and national defence. The offence refers to the following activities: a Spanish national who induces a foreign power to declare war on Spain; a Spanish national who facilitates an enemy entry to Spain; the seizing of a position, military post, ship or aircraft of the state or stockpile of stores or armament; a Spanish national who deserts to the enemy ranks when Spain is involved in an armed conflict; a Spanish national who gives the enemy arms, or other means to attack Spain; and a Spanish national who gives information to a foreign state in order to help it.46

44 45 46

Art 22 of Act 23/1992. Art 23 of Act 23/1992. Spanish Criminal Code, Arts 581–88, governs crimes of treason.

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C. Individual Criminal Responsibility Spanish criminal law is applicable to individuals committing the crimes defined by the Criminal Code. Among the common crimes that would be imputable to members of PSCs, it is notable that the Criminal Code refers to crimes in case of armed conflict as ‘offences against persons and goods protected in case of armed conflict’. In this frame, the following persons are considered protected persons: 1. Wounded, sick and shipwrecked. 2. Prisoners of war protected by the III Geneva Convention and Protocol I. 3. Civilian population and civilian persons protected by IV Geneva Convention and Additional Protocol I. 4. Persons hors de combat. 5. Parliamentarians and persons accompanying them, protected by II Hague Convention of 29 July 1899. 6. United Nations personnel and associated personnel, protected by the United Nations Convention on the Safety of United Nations Personnel and Associated Personnel, of 9 December 1994. 7. Any other person who meets that condition on the basis of Additional Protocol II of 1977 and other related international Treaties ratified by Spain.47 Taking this Article into account, we can say that Spanish Domestic Law has properly introduced international humanitarian law into internal law. According to the Criminal Code, anyone who, during an armed conflict, mistreats or puts in danger the health or the integrity of any protected person, commits torture or inhumane treatment, including biological experiments, will be sanctioned with prison.48 Furthermore, the Organic Act of Judicial Power49 (the Act referring to judicial power) refers to Spanish jurisdiction in the criminal area. Regarding the extent and limits of the competence of Spanish jurisdiction, Article 23 of the Organic Act on the Judicial Power establishes that crimes and misdemeanours committed in Spanish territory or onboard Spanish ships or airships correspond to Spanish jurisdiction, except as

47 Spanish Criminal Code, Arts 608–14, amended by Organic Act 15/2003, of 25 November, modifying the the Criminal Code [Ley Orgánica 15/2003, de 25 de noviembre, por la que se modifica la Ley Orgánica 10/1995, de 23 de noviembre del Código Penal], BOE No 283, 26 November 2003, 41842–75. Organic Act 6/1985, of 1 July, on judicial power, Art 2 [Ley Orgánica 6/1985, de 1 de Julio, del Poder Judicial], BOE No 157, 2 July 1985, 20632–78. 48 Arts 609–14 of the Spanish Criminal Code, above n 47. 49 Organic Act 6/1985, of 1 July, on judicial power, Art 2 [Ley Orgánica 6/1985, de 1 de Julio, del Poder Judicial], BOE No 157, 2 July 1985, 20632–78.

Spain 287 laid down in international treaties to which Spain is party.50 Next, it indicates that Spanish jurisdiction will cover acts laid down in Spanish criminal law as crimes, although they may have been committed outside the national territory, whenever the criminally responsible persons are Spanish or foreigners who have acquired the Spanish nationality after the commission of the act. Jurisdiction in such circumstances is dependent on the following requirements: • That the act is punishable in the place of commission, unless by virtue of an international treaty or a normative act of an international organisation to which Spain belongs this requirement is unnecessary. • That the injured party or the Fiscal Ministry denounce or places a complaint before the Spanish Courts. • That the delinquent has not been acquitted, pardoned or punished abroad, or, in the last case, has not served the sentence.51 Article 23, paragraph 4 of the Organic Act of Judicial Power includes the principle of universal applicability of Spanish jurisdiction as regards a list of crimes committed outside Spain, irrespective of the nationality of the perpetrator. These listed crimes correspond to the most grave breaches of international law: genocide, terrorism, piracy, counterfeiting, drug trafficking, and any others that, according to international treaties or convention, must be pursued in Spain. In 2009, Spain, as one of the countries with a relatively high number of pending cases regarding crimes committed outside the Spanish territory in, among others, Tibet, China, Guatemala and Rwanda, changed and restricted the foundations of universal jurisdiction. The Reform of the Organic Act of the Judicial Power which took place in 2009 limited the scope of the universal jurisdiction principle, in other words, the capacity of Spanish tribunals to deal with cases of crimes committed outside the Spanish territory. Based on this modification, a new requirement was introduced so that, in order to exercise its jurisdiction, a Spanish tribunal must accredit a relevant connecting link with Spain. Until 2010, the Spanish Criminal Code only recognised the responsibility of individuals; it did not recognise the criminal responsibility of legal entities as such. However, the Criminal Code stipulated different cases of subsidiary civil liability for collective entities (Articles 120.2–4).52

50

ibid, Art 23.1. ibid, Art 23.2. 52 Subsidiary civil liability is determined when the association dedicated to any type of industry or trade commits offences due to its employees performing their obligations or services. The offence must be committed within the framework of the company’s activity, and there must be a legal relationship between the worker and the entity. See Judgment of the Supreme Court, 29 October 1994, 8330/1994 and 12 April 1995, 3379/1995. 51

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Due to the reform of the Criminal Code in 2010,53 a system of criminal responsibility for legal entities was newly regulated and added to the regime of civil liability which remains in force. The criminal responsibility of entities will be declared only in the cases expressly established by law. In order to articulate the framework of the legal entities’ responsibility, two different channels have been established: on the one hand, the attribution of crimes to the persons having the representation of the entity and acting in the name of it and to his own advantage; and on the other hand, the responsibility of the legal entity which has not exercised due control towards its employees. Thus, legal entities will be criminally responsible according to the new Article 31 bis, and in addition the entities not having legal personality will be submitted to the modified Article 129 of the Criminal Code, which imposes accessory consequences to the penalty imposed on the author of the crime.

D. Command Responsibility and PMCs/PSCs In principle, Spanish military criminal and disciplinary law is applicable exclusively to members of the armed forces. The power to command is conferred by the person’s rank and function. The responsibility of the commander cannot be resigned or transferred. Command may, within its limits, be delegated, but this does not imply the transfer or diminution of responsibility, which always remains with the competent command. Nevertheless, it is remarkable that the preoccupation with the aspect of security and the determination of command has become a relevant issue in the latest manifestations of the Doctrine of the Army.54

V I. LABOUR LAW

There are no specific rules on PMCs in Spanish labour law. Regarding private security companies, we must distinguish, on the one hand, contracts undertaken between the private security companies and their workers, and on the other, contracts undertaken between the private security companies and the public administration. Focusing on the labour relation between private security companies and their workers, the PSC signed the State Collective Agreement for

53 Organic Act 5/2010, of 22 June, Art 31bis [Ley Orgánica 5/2010, de 22 de Junio, por la que se modifica la Ley Orgánica 10/1995, de 23 de Noviembre del Código Penal], 54811–83. 54 J Ruiz Arévalo, ‘Contratistas Civiles en operaciones expedicionarias. Problemas de seguridad y control para el mando militar’ (2008) 3 Athena Intelligence Journal 25.

Spain 289 Security Companies for 2009–2012.55 The Agreement was signed by some of the associations of the sector and the unions UGT56 and USO, representing the affected labour group. This Agreement establishes the bases for relations between the surveillance and security companies and their workers. It includes in the field of material application all companies dedicated to the provision of surveillance and security of ‘any class’ of premises, goods or people, as well as services of transport or transfer with accredited media and vehicles. However, the territorial scope of that agreement is exclusively Spanish territory. For this reason, as regards labour, one should look to Article 1.4 of the Statute of Workers, which establishes a norm of extension, applicable to multinational companies with their headquarters in Spain and branches abroad. The signatories of the collective agreement consider it essential to protect the security and health of workers against risks derived from their work by means of the establishment of effective policies of labour risk prevention. Consequently, in the light of that laid down in Act 31/1995, of 8 November 1995, on the Prevention of Labour Risks,57 they consider it necessary to improve working conditions and to continue to strive for permanent improvement of the levels of training and information of personnel inasmuch as it can contribute to elevating the level of protection of the security and health of workers in the sector. On the other hand, considering that these are high-risk professions, the guarantees as regards labour accidents and incapacitation are covered in the so-called Special Agreements of Social Security.

V I I . G OV E R NME NT P OLIC Y ON THE STATUS OF P MC S / P S C S AN D OTHER ASP EC TS

The Spanish government has taken no clear position on the matter, nor developed a structure or procedure to formulate proposals or to give content to the legal void which currently exists. Three milestones can be identified in the political dimension: the Montreux Document; the political decision of sending members of private military companies to fishing boats in Somalia (2009); and the passing of a resolution by the 55 Resolution of 28 January 2011, of the Directorate General of Work, laying down the inscription in the registry and publication of the State Collective Agreement of Security Companies [Resolución de 28 de enero de 2011, de la Dirección General de Trabajo, por la que se registra y publica el Convenio colectivo estatal de las empresas de seguridad], BOE No 40, 16 February 2011, 17046–50. 56 General Workers’ Union (UGT). 57 Act 31/1995, of 8 November, Prevention of Labour Risks [Ley 31/1995, de 8 de noviembre, de Prevención de Riesgos Laborales], BOE No 269, 10 November 1995, 32590–611.

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Human Rights Council to set up an intergovernmental working group in charge of preparing a legally binding instrument. The Montreux Document played an important role since it was the first occasion on which the question of PMSCs was addressed, although it is important to note that the document is not mandatory. As well as adhering to the Document, Spain also had to pronounce itself on another occasion with reference to the Cuban and South African initiative in the Human Rights Council. There a Resolution was adopted in order to create an open-ended intergovernmental working group to consider the possibility of elaborating an international regulatory framework on the regulation, monitoring and oversight of the activities of private military and security companies. The Group of Western States, including Spain, voted against the creation of this group.58 The political decision to send security personnel to Somalia and to modify the Regulation on Private Security in order to do so met the needs explained above of facing the demands of tuna boat workers sailing at risk from piracy attacks. This does not mean that the problem has been solved—the complexity of the issue is noted above. On the other hand, the Higher Centre for National Defence Studies, which is part of the Spanish Ministry of Defence, published a study called ‘The Externalisation of the Armed Forces: The Balance between Internal and Externalised Logistical Support’, which is the most important advance in this matter in Spain. Although it has not been adopted as the policy of the Spanish government, it is a significant contribution,59 and could be used as a guide to identify the position of the Spanish government. The document opts for externalisation and declares that external support services, in the first stages of force deployment and in the absence of what is known in NATO as host nation support, ‘are essential since they facilitates a faster deployment, normally obtained through local contractors and personnel’.60 In the monograph, it is declared that the use of these private companies, in zones that are not actually in combat or in proximity to it, can be advisable, given their capacity to offer services quickly and flexibly, so as not to be placed under limitations, procedures and legislation to which public organisations are subject and not requiring, in general, important organisational structures.

The work also takes into account the practical and negative aspects of the presence of contracted civilian personnel. Civilian personnel, in the light of international humanitarian law, have the status of civilians authorised 58

A/HRC/Res 15/26, 7 October 2010. CESEDEN (Centro Superior de Estudios de la Defensa Nacional), La externalización en las fuerzas armadas: equilibrio entre el apoyo logístico propio y el externalizado (Madrid, Ministerio de Defensa, 2007) 90. 60 ibid, 21–22. 59

Spain 291 to accompany the forces, and are therefore non-combatants. This can be a complication for the head of the force deployed since he would have to provide protection for the civilian personnel, whereas the soldiers protect themselves. Another of the disadvantages involved is the fact that the soldiers cannot count on them in compromising situations, as they are not authorised to use arms due to the legal problems that could ensue.61 Hypothetically speaking, this affirms that the authority of the commander of the force would be limited, since he would have to act within the terms established in the contract, whose director would not be in the deployment zone. Nor would the Code of Military Justice be applicable to the civilian personnel, unless there was a formal declaration of war, which is not usual.62 It is proposed to analyse first what activities are susceptible to being externalised, and then the conditions of contracting. In the monograph it is proposed to reserve to the armed forces the essence or nucleus of the activities, that is to say, the accomplishment of the operational missions that are entrusted to them both in peacetime and in situations of armed conflict. However, it is added that some, if not all, operations that are carried out in peacetime could be susceptible to externalisation if there were civil companies capable of carrying them out. To ensure the operational capacity of the force by means of logistical support generally and the maintenance of the weapon systems are services susceptible to externalisation.63 Finally, in conclusion, the Higher Centre for National Defence Studies declares that the challenge lies in defining essential functions and distinguishing between combat and non-combat operations. The difference between the two has become more and more indistinct. No problems are found in terms of outsourcing support to military activities carried out in national territories, except for amendments required in contractual laws in different countries. There are as yet no specific laws in Spain governing the provision of services by PMCs in areas of armed conflict. Therefore the contract is the main source of the legal relationship between the hiring entity and the private firms.

V I I I . C ONC LUDIN G REMARK S

Private security has seen a steady increase in the last few decades. The Act on Private Security was adopted in 1992 and is characterised by strong interventionism from the state administration. Besides protection against the terrorist threat, Spanish private security tends to provide 61 62 63

ibid, 21–23. ibid. ibid.

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other functions, such as protection of victims of gender violence and protection against organised delinquency. This is the reason why it is essential to provide private security with a normative system that can be adapted to this new reality. The debate could be focused on the following question: should Spain attempt to regulate security companies working beyond the borders of the state or should such regulation continue to be limited to its national territory? The reason why no progress towards specific legislation has been made as yet has both a political and a judicial (constitutional) dimension. The act of delegating certain armed activities to security companies is a delicate political issue since, if the companies work abroad, who will control their activity? Besides, it would go against the constitutional principles described at the beginning of this chapter. Lege ferenda it would be desirable to redefine the functions of private security to be more in accordance with international practice.

14 Sweden ANDREAS BERGMAN

I . OUT S OUR C I NG OF MILITARY AN D SEC URITY S E RV I C E S — A SWEDISH P ERSP EC TIV E

D

URING THE COLD war most of the available resources in Swedish society could be mobilised in the case of war; bakeries, electrical companies, ferries, airliners, vehicles etc. The Swedish defence system came to include the entire society, where virtually everything could be used by the armed forces in order to preserve Sweden’s freedom and independence. Terms such as ‘total defence’ and ‘public defence’ manifested everyone’s participation in the defence of the country. From this perspective, outsourcing of military and security-related services is old news. After the cold war the situation has evolved somewhat differently, partly because the tasks for the armed forces have expanded and nowadays includes an active participation in peace operations on a larger scale. From a domestic perspective, companies offering services such as security guards, bodyguards and transport of valuables and money are an integral part of the society. In war, conflict and post-conflict zones, however, the outsourcing of similar services offers new challenges since it is a field of business that, from a societal perspective, requires certain government control. In 2005 the Swedish Armed Forces started to use private security companies on a national level to transport weapons and munitions,1 and to guard stores of weapons. Abroad, both the Swedish Armed Forces and the Swedish Foreign Service procure security services from Swedish as well as local or otherwise non-Swedish companies with specific knowledge of the relevant area. Such services include, among others, security guards for the protection of buildings, restricted areas and military camps, and bodyguards for ambassadors, top consular officials or very important persons on a temporary visit.2 The Ministry of Foreign 1 2

Military Security and Intelligence Directorate, Annual Report (Stockholm, 2006) 34. eg Swedish Security Service, Annual Report (Stockholm, 2008) 47.

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Affairs, for instance, has procured security service for the embassy in Kabul from a Swedish company called Vesper Group. It provides the mission with security coordinators and a team of bodyguards.3 Vesper Group employees, working for the Swedish Foreign Service, enjoy diplomatic status and, when carrying out their mission, they are allowed to use force in self-defence only.4 The fact that the Swedish Armed Forces use local nationals to manage part of the camp security in for example, Afghanistan, is well known. How the command and control over locally employed security staff is executed and organised is not known. Furthermore, during the last couple of years, the Swedish Armed Forces have identified several areas suitable for outsourcing in the quest for more economic efficiency; these are logistics, transport, facility management, equipment maintenance and other support services.5 It is thus not unrealistic to assume that outsourcing within the Swedish Armed Forces and other Swedish authorities operating in war, conflict and post-conflict zones will increase.

I I . S WEDISH P RIVATE MILITARY AND SEC URITY C OMPAN IES

Swedish private security companies offering security services, or educating individuals performing such services for stationing, in war, conflict and post-conflict zones are easily counted. One can conclude that there are probably no more than a handful of enterprises potentially belonging to this category.6 Swedish examples are thus few. However, in 2007 the County Administrative Board in Uppsala suspended the licence for Dynsec AB, a security company which, among others, offered education for security personnel aiming at service in high-risk environments. On their homepage the company promoted its personal security detail courses, intended for service in Africa and the Middle East. The courses included training modules such as tactical shooting and tactical driving. The Uppsala County Administrative Board pointed out in the 3 P Wallberg, ‘UD anlitar ex-militär i Afghanistan’, Svenska Dagbladet, 4 March 2010, available at www.svd.se/nyheter/inrikes/ud-anlitar-ex-militar-i-afghanistan_4372617. svd; O Nygårds, ‘Stark tillväxt för svenska säkerhetskonsulter’, Svenska Dagbladet, 5 October 2010, available at www.svd.se/naringsliv/stark-tillvaxt-for-svenska-sakerhetskonsulter_5451599.svd. 4 The Swedish Parliament, ‘Utrikesdepartementets och utlandsmyndigheternas anlitande av privata säkerhetsföretag i utlandet av Hans Linde (v) till utrikesminister Carl Bildt (m)’, written question 2009/10:629. 5 A Carlsson, Confederation of Swedish Enterprise, ‘Försvaret tar sikte på näringslivet’, 18 June 2009, available at www.svensktnaringsliv.se/fragor/konkurrens_i_vard_skola_ och_oms/forsvaret-tar-sikte-pa-naringslivet_80300.html. 6 eg The Swedish Fellowship of Reconciliation, ‘Säkerhet på export—om svenska säkerhetsföretag utan demokratisk kontroll’, 11 et seq, available at www.krf.se, 11 f; Nygårds, above n 3.

Sweden 295 reasons for the decision to suspend the licence that the education offered was ‘more advanced than Swedish law permitted’ and that the courses were ‘inappropriate from a general point of view’. The National Police Board later stated that if they were to receive information that a Swedish company, licensed as a security company, offered such services, they would question its authorisation.7

I I I . T H E S E C URITY C OMPAN Y AC T

A. Extraterritorial Application The offering of services such as security guards, bodyguards, and transport of valuables and money is regulated in the Security Company Act.8 Of interest for the purpose of this chapter is the applicability of that law outside Swedish territory. More specifically, is a company registered under Swedish law obliged to require a licence in order to legally offer such services abroad? From the wording of the law, it is not possible to conclude that the Security Company Act is not applicable to business conducted abroad.9 The law focuses on where the company headquarters is located, not where it geographically offers security services.10 Furthermore, a quick review of the preparatory work for the Act reveals that the question has not been addressed properly.11 Even though it appears that the question did not trouble the legislator, either when the law first was adopted or at any of the revisions, it does not mean that the Act cannot have certain extraterritorial applicability. In contrast, the link between a security company established under Swedish law, its business abroad and Sweden is strong enough to create a legitimate interest to exercise control and require authorisation. This is primarily because the duties generally carried out by security guards, bodyguards and other security personnel necessarily puts them in a special position with relation to the public, which typically requires certain supervision and control from society. Furthermore, there is a public interest and a general duty to make sure that impunity is not prevalent. These interests are particularly important in war, conflict or postconflict zones, where the local authorities can be expected to have the 7

Email from Lars Bjöhle to author, 24 September 2010. Security Company Act (1974:191). ibid, ss 1–2. 10 ibid, s 5. 11 eg Government Bill: Kungl. Maj:ts proposition med förslag till lag om bevakningsföretag, given den 22 februari 1974, 1974:39; Om ordningsvakter och bevakningsföretag, 1979/80:122; Om ändring i lagen (1974:191) om bevakningsföretag m m, 1988/89:63; Ändrade regler om auktorisation av bevakningsföretag, 2005/06:136; Genomförande av EG-direktivet om erkännande av yrkeskvalifikationer för väktare, 2008/09:157. 8 9

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capacity neither to issue appropriate regulations and exercise supervision, nor to investigate and when necessary prosecute. In addition to this, the answer of the Minister of Justice to the parliament to a written question (see below) seems to indicate that the government considers the Security Company Act applicable to companies registered under Swedish law offering security services abroad.12 Nevertheless, the question has been subject neither to adjudication by a Swedish court nor to direct consideration by a County Administrative Board in a case of authorisation. To sum up, good reasons suggest that the law has a certain extraterritorial applicability. However, the lack of case law in this respect makes the situation somewhat unclear.

B. The Security Company Act According to Swedish law, a company must be authorised by the County Administrative Board, in the county where the company board has its headquarters, in order to be allowed to offer security services. A company offering such and similar services is called a security company. In order to obtain a licence, the services must be offered on a commercial scale and for customers. A company that does not provide security services but offers education and courses for security personnel and security guards is called a training company, and is also required to apply for a licence.13 A security company may not be granted a general licence; rather, the authorisation is always limited to a certain type of business and service. The offering of military and/or related security services abroad or otherwise in a war, conflict or post-conflict environment is not specifically mentioned in the law. The Security Company Act requires that all personnel hired by a security company, including board members and the managing director, must be vetted in respect of whether they are law abiding, for their civil reliability and for their suitability in general for employment in a security company. A security company that fulfils these given requirements may be licensed to possess weapons and their personnel may be granted permission to carry arms when executing certain duties. Personnel hired by a security company may only use weapons in selfdefence. The Swedish National Police Board is authorised to issue regulations regarding equipment, including weapons and their use, the carrying of uniforms, mandatory training and similar.14 Both security and training companies are subjected to the supervision 12 The Swedish Parliament, ‘Lagreglering av privata säkerhetsföretag av Alice Åström (v) till justitieminister Beatrice Ask (m)’, answer to written question 2007/08:1299. 13 Security Company Act (1974:191), s 2. 14 Swedish National Police Board Statues (2009:18), FAP 579-2.

Sweden 297 of a County Administrative Board. Security Companies must ex officio account for their business each year in a formal report to the County Administrative Board in the county where they acquired their licence. Offering security services without the proper authorisation is an offence punishable with a fine or imprisonment for at most six months.15

I V. R E G UL ATION OF ARMED FORC E

A. Possession of Arms The possession of arms is regulated in the Weapons Act.16 The Act has no evident application outside the realm and the reasons suggested for extraterritorial applicability of the Security Company Act do not apply. The Act is principally not applicable to the state itself, ie the police, the armed forces and so on. The possession, production, trade and all other handling of weapons and ammunition is generally prohibited in Sweden. Hunters, sportsmen, security companies, museums, etc must apply for a licence to possess weapons. A licence to possess a weapon is always limited to a certain purpose, that is, owning a weapon without a reason is not permitted. The local police grant permits to possess weapons and violations of the Weapons Act are punished with a fine or imprisonment for at most one year. A weapon used in a violation of the Weapons Act is almost always forfeited.17

B. Arms Export (i) Munitions Export The export of arms and munitions is regulated in the Military Equipment Act.18 Those goods which constitute munitions are decided upon by the government in a government order. The Act provides for licensing for the production of munitions as well as for offering such products for sale. Swedish authorities, Swedish companies and persons who are resident or permanently domiciled in Sweden are required to obtain a Swedish licence in order to legally offer munitions for sale or otherwise supply such goods abroad or to foreign countries. The penalty for violating the Military Equipment Act is a fine or imprisonment for not more than

15 16 17 18

Security Company Act (1974:191), s 14. Weapons Act (1996:67). ibid, c 9, s 5. Military Equipment Act (1992:1300).

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four years. Licensing and control is exercised by the Swedish Agency for Non-Proliferation and Export Controls.18 (ii) Service Export The Military Equipment Act does not cover the export of services as such. However, training for a military purpose of persons who are not Swedish citizens, in Sweden, requires a permit. A violation is penalised with a fine or imprisonment for not more than four years.18 In addition to this, Swedish authorities, Swedish companies and persons who are resident or permanently domiciled in Sweden are required to obtain a permit when offering such training abroad.19 Military training of Swedish citizens in Sweden and in a non-governmental context can be illegal, and is considered as unlawful military activity, in accordance with the Penal Code.20 The Government Military Equipment Inquiry, which was concluded in 2005, was assigned, among other tasks, to investigate whether there was a need for legislation with regard to the export of military services, since the lack of such regulation in Swedish law was considered a major deficiency.21 The inquiry suggested that the export of technical assistance, training, transfer of knowledge and skills or consultancy services in relation to the export of military equipment abroad should be subjected to licensing.22 The suggestion has so far not brought about any legislation. (iii) The Intra-Community Transfer (ICT) Directive23 In 2009, the European Parliament and the Council of the European Union adopted the ICT Directive on simplified terms and conditions of transfers of defence-related products within the Community. According to Article 18, Member States shall take necessary legislative action in order to comply with the Directive no later than 30 June 2011. The Swedish government has initiated the implementation process and the remaining legislative and administrative measures are to be taken in 2011.24

19

ibid, s 10. cf Penal Code (1962:700), c 18, s 4. Swedish Government Official Reports, ‘KRUT—Reformerat regelverk för handel med försvarsmateriel, slutbetänkande av KRigsmaterielUTredningen’ (2005:9) 239, 287. 22 ibid, 27. 23 Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defence-related products within the Community, [2009] OJ L146/52. 24 Budget Bill, 2010/11:1, expenditure area 5, 21. 20 21

Sweden 299 V. C ORP ORATE LAW

The principle of freedom of trade prevails in the Swedish legal system. That is, one does not have to obtain a licence, or even register, to be allowed to run a business. The only exception is if an individual has a trading prohibition imposed upon them by a court.25 Such a trading prohibition is always limited to a certain period of time and can be imposed on an individual only after he/she, in their capacity as a private entrepreneur, has seriously breached fundamental rules applicable to the conduct of commercial activities.26 Furthermore, certain type of businesses, eg the offering of bodyguard services, may be subjected to authorisation from or registration with local, regional or national authorities.27 For obvious reasons, many choose to organise their businesses in one of the legal forms available according to Swedish law, of which sole trader or private firm, unlimited partnership, limited company and economic association are the most common. The respective legal forms are subject to different regulations. Not complying with the applicable rules can lead, among other things, to compulsory liquidation, whereby the business will be dissolved and cease to exist. V I . LABOUR LAW 28

Most areas of the Swedish labour market are in one way or another regulated by law.29 The applicable rules fall into two broad categories: a body of rules on social protection and, conversely, a set of rules from which deviation is allowed within certain limitations. However, Swedish labour law does not contain any regulation aimed specifically at private security companies.

A. Applicability of Swedish Labour Law in International Cases The applicability of Swedish labour law in cases of an international character is to be decided according to conflict of law rules. The jurisdiction for Swedish courts to rule on such cases should be decided

25

Trading Prohibition Act (1986:436). ibid, ss 1–2. 27 Security Company Act (1974:191), s 2. 28 Important Swedish labour market acts are available in English on the Governmental Office’s homepage, available at www.sweden.gov.se/sb/d/3288/a/19565. 29 L Gellner and L Sydolf, Swedish Labour Law Svensk arbetsrätt (Stockholm, Norstedts juridik, 2008) 15. 26

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according to the applicable international procedural rules.30 Some of the social protective rules established in, for example, the Employment Protection Act are of an overriding mandatory character and are to be applied irrespective of which law would otherwise be applicable to that case.31 Swedish labour law is thus highly relevant for private security companies. In the preparatory work for the Employment Protection Act, it is stated that the Act in principle is applicable to work carried out outside the realm, if both the employer and the employee are Swedish legal entities. Thus, the social protective character of certain regulations in Swedish labour law extends its applicability to international employment relations, which may be of importance for private security companies established under Swedish law.

B. Work Environment Act The Work Environment Act32 contains basic provisions regarding the work environment. The employer has primary responsibility for the work environment and must consequently take necessary measures to prevent ill-health and accidents at work, and furthermore to ensure a satisfactory work environment in general. The Work Environment Act is supplemented by a comprehensive set of regulations issued by the Swedish Work Environment Authority in its Statute Book, as provisions or general recommendations specifying the requirements to be met by the work environment for different types of work. The Work Environment Act is principally not applicable outside the realm,33 the exception being the armed forces and the police when operating abroad.34 An employment with the armed forces or the police stationed abroad is considered to have such a connection to Sweden that the Work Environment Act applies, at least partly. Other Swedish authorities are expected to apply the Act in relation to their personnel stationed abroad, eg the Foreign Service.35 In the preparatory work it was pointed out that work assignments can have connections to several countries, and in such situations some provisions regarding the employer’s obligations in relation to the employee may be applicable also outside Swedish territory.36 These circumstances are 30 A Weihe, ‘Employment (Co-Determination in the Workplace) Act (1976:580)’, Karnov Internet, 1 July 2010, available at www.thomsonreuters.se/karnov; P Dalekant, ‘Employment Protection Act (1982:80)’, ibid. 31 M Bogdan, Svensk internationell privat- och processrätt, 7th edn (Stockholm, Norstedts juridik, 2008) 84 et seq. 32 Work Environment Act (1977:1160). 33 H Blyme, ‘Work Environment Act (1977:1160)’, Karnov Internet,above n 30, fn 2; Government Bill, Om arbetsmiljölag m.m., 1976/77:149, 213. 34 Lag (1999:568) om utlandsstyrkan inom Försvarsmakten, ss 1a, 2. 35 Government Bill, Lag om utlandsstyrkan inom Försvarsmakten, 1988/89:68, 12. 36 Government Bill, 1976/77:149, 214.

Sweden 301 of importance for private security companies, in the first case when conducting work for a Swedish government authority abroad and in the second case when performing work abroad for whatever customer. Thus the Work Environmental Act can have a certain extraterritorial applicability.

C. Work Environment Crime and Company Fine An infringement of the Work Environment Act entails personal or corporate responsibility. An individual who seriously violates his or her duties according to the Act, and thereby causes death or bodily injury, or exposes an individual to danger of life, may be sentenced to pay a fine or imprisonment.37 A company may also be ordered to pay a corporate fine if the crime is committed in the exercise of business activities and the entrepreneur has not done what could reasonably be required of him for prevention of the crime. Such a corporate fine will amount to at least five thousand Swedish crowns and at most ten million Swedish crowns.38

D. Liability for Subordinates According to the Tort Liability Act,39 employers have an almost unlimited liability for damages that employees, or other equivalent contractors, may cause at work or in close relation to the work assignments preformed. The responsibility also covers other tortious actions that an employee may cause at work. It does not matter if the damage is caused due to negligent or intentional conduct, or whether it is unclear which of several employees caused the damage.40

V I I . G OV E R N MEN T P ROC UREMEN T

Public procurement has partly been accounted for in other parts of this chapter. The national framework regulation can be found in the Public Procurement Act.41 However, this field of law is greatly affected by European Union legislation and related case law. The underlying 37

Penal Code (1962:700), c 3, s 10. ibid, c 36, ss 7–8. 39 Tort Liability Act (1972:207). 40 B Bengtsson, Tort Liability Act (1972:207), Karnov Internet, above n 30, 1 October 2010, fns 32–36. 41 Public Procurement Act (2007:1091). 38

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principles for public procurement are the free movement of goods and services and freedom of establishment. For this to be achieved a contracting authority shall: ‘[T]reat suppliers in an equal and non-discriminatory manner and shall conduct procurements in a transparent manner. Furthermore, the principles of mutual recognition and proportionality shall be observed in procurements.’42 When procuring military equipment and related services and products, special rules may apply, especially when it comes to classified information, which needs to be protected throughout the procurement process. According to the Security Protection Act, certain deviations from parts of the rules that otherwise govern public procurement are permissible.43 The procurement process can be secret or otherwise be subject to certain limitations for national security reasons. Such protected procurements may not be used to restrict competition or otherwise be conducted in a discriminatory manner.

V I I I . C RIMIN AL RESP ON SIBILITY

The 1962 Penal Code44 constitutes the basis for Swedish criminal law. However, there is a comprehensive amount of special criminal law in different regulations eg, Work Environmental Crime in the Work Environment Act.

A. Applicability of Swedish Criminal Law Swedish courts have a fairly broad jurisdiction when it comes to crimes committed abroad. Such crimes are judged according to Swedish law and by a Swedish court if the crime has been committed: 1. 2.

3.

by a Swedish citizen or an alien domiciled in Sweden; by an alien not domiciled in Sweden who, after having committed the crime, has become a Swedish citizen or has acquired domicile in the realm, or who is a Danish, Finnish, Icelandic or Norwegian citizen and is present in the realm; or by any other alien who is present in the realm, and the crime under Swedish law can result in imprisonment for more than six months.45

In addition to this, a number of other requirements must be fulfilled. First, the requirement of double criminality must be fulfilled; this means 42 43 44 45

ibid, c 1, s 9. Security Protection Act (1996:627). Penal Code (1962:700). ibid, c 2, s 2.

Sweden 303 that the crime must be punishable both in the country where it was committed and in Sweden. Further, a sanction imposed for a crime committed outside the realm ‘may not be more severe than the severest punishment provided for the crime under the law in the place where it was committed’. In all other regards, courts exclusively apply Swedish law. Applicable law is thus seldom an issue when Swedish courts judge criminal cases. Moreover, the crime must, according to Swedish law, render a more severe punishment than a fine (which means a minimum of six months of imprisonment).46 Sexual crimes committed against individuals under the age of 18 years and genital mutilation are exempted from the requirement of double criminality. A Swedish court is also empowered with jurisdiction to judge cases according to Swedish law if the alleged crime is committed abroad and it has a connection to Sweden; that is, if committed against the Swedish nation, a Swedish municipal authority or other assembly, or against a Swedish public institution, or if the crime is committed by servicemen or officers in the armed forces or the police stationed abroad, or other civil servants belonging to the police, the coastguards and similar in the course of duty outside the realm. Lastly, Swedish courts are empowered to decide any case if the alleged crime is hijacking, maritime or aircraft sabotage, airport sabotage, a crime against international law, unlawful dealings with chemical weapons, unlawful dealings with mines, terrorism, false or careless statements before an international court, interference in a judicial matter regarding a case before an international tribunal or if the least severe punishment prescribed for the crime, according to Swedish law, is imprisonment for four years or more.

B. Surrender of Individuals in Criminal Matters Swedish law provides a range of possibilities for surrendering alleged criminals to proceedings in the country where the crime was committed or to international tribunals.47 Transfer of individuals for criminal proceedings in another EU Member State is in most cases based on the Act on Surrender from Sweden According to the European Arrest

46

ibid, c 2, s 2. eg Act (1957:668) on Extradition of Offenders; Act (1994:569) on Cooperation between Sweden and the International Tribunals for Violations of International Humanitarian Law; Cooperation with the International Criminal Court Act (2002:329); Konventionen 1961 med Amerikas Förenta Stater om utlämning och tilläggskonvention den 14 mars 1983, Sveriges internationella överenskommelser (SÖ) 1963:17 and 1984:34; Överenskommelse med Kanada om utlämning och tilläggsavtal 1980 och 2001, SÖ 1976:30, 1980:21 and 2001:42; Utlämningsfördrag med Australien den 20 mars 1973 och ändringsprotokoll 1985 och 1989, SÖ 1974:3 and 1985:64. 47

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Warrant,48 which is an implementation of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. Transfer to Nordic countries, which are not EU Member States, can be done according to the Act on Surrender to Denmark, Finland and Norway.49 For transfer to countries outside the Scandinavian countries and the EU, the Act on Extradition of Offenders50 is applied. The extradition framework aims at ensuring an efficient examination of the extradition request, which fulfils the requirements in a society governed by the rule of law and due process and Sweden’s obligations under international law. For most of the international criminal tribunals there are special regulations allowing surrender for criminal proceedings.51

C. Mercenaries Sweden is not party to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries52 and has no law prohibiting individuals being mercenaries abroad or otherwise to be enrolled in military service for another country. However, what an individual does in his or her service to another state can still be a criminal offence under Swedish law. Accordingly, Swedish courts have jurisdiction over such cases under certain circumstances. The Penal Code has two provisions of interest when it comes to mercenaries and related activities. Organised military training outside the auspices of the armed forces in the realm for combat or similar can be a criminal offence which could bring about responsibility for unlawful military activity and result in a fine or imprisonment for at most two years.53 Furthermore, recruiting, or otherwise inducing, people to enter into foreign military service or comparable duties without the authority of the government can also be penalised. The offence, unlawful recruiting, is punished with a fine or, in peacetime, a maximum six month imprisonment.54

48 49 50 51

etc.

Act (2003:1156) on surrender from Sweden according to the European arrest warrant. Act on surrender to Denmark, Finland and Norway (1959:254). Act (1957:668) on Extradition of Offenders. Committee terms of reference, 2009:88, Review of the Act on Extradition of Offenders

52 UN Doc A/RES/44/34, ‘International Convention against the Recruitment, Use, Financing and Training of Mercenaries’ (1989). 53 Penal Code (1962:700), c 18, s 4. 54 ibid, c 19, s 12.

Sweden 305 I X. C IV IL LIABILITY

A. Contractual and Tort Liability There are no specific laws, or any known case law, in Sweden regarding civil liability and private security companies. As in most legal systems, the basis for being liable to pay damages is either founded on a contractual relationship, for which the contract itself is of great importance, or tort. Contractual liability arises out of the breach of a contract provision, and there is considerable room for the contracting parties to agree on most terms and conditions for contractual liability. According to the Contracts Act, undue provisions in such agreements can be adjusted.55 Liability for tort is regulated in the Tort Liability Act on a general level. Many rules are, however, to be found in special legislation in different fields. The liability to pay damages for tort is based on neglect or intent, and such liability can be imposed for personal injuries as well as property damages. Further, if harm arises out of a crime, the culprit may be ordered to pay for the moral damage caused.56

XI . T H E OF F I CIAL SWEDISH P OSITION V I S -À-V I S P R I VATE SEC URITY C OMPAN IES

A. The Government In the last few years, the Minister of Justice and the Minister of Foreign Affairs have answered questions in relation to private security companies. In 2007 the Minister of Justice—Beatrice Ask—was asked if she was prepared to take legislative measures in order to close possible loopholes in the Swedish legislation in relation to private security companies operating in war, conflict or post-conflict zones.57 The Minister answered that the police are responsible for maintaining law and order in society but that it is a well-established fact that certain security services are provided by private companies. She concluded that the community, through the Security Company Act and the County Administrative Boards, has the means to exercise control and follow-up on security companies established under Swedish law. She also recognised that some companies and certain individuals may choose to run businesses that are not covered by the Security Company Act and, to the extent that such businesses constitute criminal offences, legal proceedings should be taken accordingly. The Minister also noted that Switzerland and the 55 56 57

Contracts Act (1915:218), s 36. Tort Liability Act (1972:207), c2, s 3; Bengtsson, above n 40. Written question 2007/08:1299.

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ICRC (International Committee of the Red Cross) have taken a joint initiative58 to foster the adherence to international law and human rights in situations where private military companies act.59 Sweden participated in the initiative, which resulted in the adoption of the Montreux Document on 17 September 2008. In early 2010 the Minister for Foreign Affairs—Carl Bildt—was asked a question in the parliament with regards to the fact that the Foreign Ministry hires private security companies for its security in eg Afghanistan. The Minister was asked what measures he had taken in order to ensure that private security companies, when performing duties for the Ministry, comply with Swedish and Afghan national law respectively. The Minister of Foreign Affairs stated that the Foreign Ministry has engaged through public procurement a private security firm to reinforce the security team at the embassy in Kabul with security coordinators and a team of bodyguards. According to the statement, the security personnel work under the same conditions as the diplomats. The security personnel have been screened and are bound to observe Swedish, Afghan and international law through the code of conduct of the company. When it comes to the use of force, this is, according to the statement, limited to self-defence.60 In light of these two statements, it is worth observing that Vesper Group, engaged by the Foreign Service in Afghanistan, is not authorised as a security company under Swedish law.61

B. The Parliament In 2009 a member of the Swedish parliament submitted a motion and suggested that the parliament should announce to the government the need of an inquiry regarding, on the one hand the occurrence of private military companies in Sweden and, on the other hand, the involvement of Swedish citizens in such companies.62 The Committee on Justice of the Swedish parliament answered the motion and, referring in its answer to the written statement of the Minister of Justice (accounted for above), stated that the present regulation, which entails that private actors’ who run such businesses are screened and must be authorised, is satisfactory.

58 UN Doc. A/63/467-S/2008/636, Annex, ‘Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict’, 17 September 2008. 59 Answer to written question 2007/08:1299. 60 Written question 2009/10:629. 61 Email from Eva Köbin to author (13 September 2010). 62 The Swedish Parliament, Private Security Companies, Motion to the Parliament, 2009/10:Ju332.

Sweden 307 According to the statement, there is no need for the parliament to take action on this question.63

C. Conclusions In summing up the official Swedish position, as expressed by the government through the Minister of Justice and by the parliament through the Committee on Justice, it seems that there is no need to take national initiatives to inquire into or otherwise clarify the situation regarding Swedish private security companies operating in war, conflict or post-conflict zones. For that reason, one can also conclude that the government apparently does not consider it necessary to take legislative measures at the moment.

X I I . C ONC LUDIN G REMARK S

Sweden has no legislation specifically aimed at regulating private security companies established under Swedish law, which operate abroad in war, conflict or post-conflict zones. That, however, does not necessarily mean that relevant regulation is non-existent. One can conclude that it is almost impossible to conduct training, at least legally, in the realm aiming at missions in such environments, outside the auspices of the police or the armed forces. Furthermore, the private security company ‘industry’ in Sweden is quite limited, but the tendency is for the Swedish Armed Forces, and other Swedish authorities which operate abroad, to procure more services from private contractors. Finally, Swedish criminal law provides a legal basis for punishing culprits—Swedish citizens as well as others—for crimes committed in war, conflict and post-conflict zones.

63 The Swedish Parliament, Polisfrågor, Consideration of the Committee on Justice, 2009/10:JuU13, 17 et seq.

15 The United Kingdom ALEXANDRA BOHM, KERRY SENIOR AND ADAM WHITE*

I . I NTRODUC TION

T

HE PROLIFERATION OF private military and security contractors (PMSCs) within the contemporary security landscape is bringing into focus an ever-expanding number of problems, such as acts of violence which fall outside of established legal frameworks,1 the conflict between the profit motive and human rights,2 the influence of private interests on foreign policy,3 the widespread dissemination of military knowledge and expertise,4 and the increased probability that states will engage in armed conflicts when it is possible for them to draw upon private contractors instead of their own citizens.5 Some of the largest and most prominent PMSCs are based in the UK, such as Armorgroup, Group 4 Securicor and Aegis.6 Over the past decade, these contractors have been engaged in peacekeeping and military operations * The authors would like to sincerely thank Professor Nigel White for his generous support and guidance during the writing of this chapter—all errors, of course, remain our own. Alexandra Bohm would like to thank the University of Sheffield for their financial support during this research. Kerry Senior would like to thank the Universities of Sheffield and Nottingham for their financial support during this research. Adam White would like to thank the Economic and Social Research Council (grant number: RES-000-22-3062) for their financial support during this research. 1 L Doswald-Beck, ‘Private Military Companies under International Humanitarian Law’ in S Chesterman and C Lehnardt (eds), From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford, Oxford University Press, 2007); C Lehnardt, ‘Private Military Companies and State Responsibility’ in Chesterman and Lehnardt, ibid. 2 P Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca and London, Cornell University Press, 2008) 216–29. 3 D Avant, The Market for Force: The Consequences of Privatizing Security (Cambridge, Cambridge University Press, 2005) 65–70. 4 E Krahmann, ‘Private Military Services in the UK and Germany: Between Partnership and Regulation’ (2005) 14 European Security 285. 5 S Percy, ‘Morality and Regulation’ in Chesterman and Lehnardt, above n 1, 20–21. 6 It is important to note that Armorgroup was acquired by Group 4 Securicor in May 2008.

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in Iraq, Afghanistan, Kosovo, Kenya, Jordon, Sudan and Nigeria, to name just a few countries. As a consequence, the problems related to PMSC activities have been discussed with increasing frequency on the UK political scene. In particular, many in the academic, activist and parliamentary circles have made a compelling case in favour of regulating PMSCs.7 In response, the UK government has in recent years directed attention towards the issue. This process began during the political fallout of the 1998 ‘Arms to Africa’ affair, which revolved around the controversial involvement of the UK-based PMSC Sandline International in the Sierra Leone civil war.8 The government enquiry into this episode resulted in the 2002 Green Paper, ‘Private Military Companies: Options for Regulation’, which set out a number of options for controlling the activities of PMSCs. Following the release of this important paper, however, all went quiet on the matter—a silence which coincided with the government’s controversial use of PMSCs in Iraq, together with the granting of immunity to UK-based PMSCs operating in this conflict. Significantly, though, towards the end of its political tenure the Labour government started to re-engage with the issue. In 2009, PMSC immunity in the Iraq conflict was lifted and the UK government—through the Foreign and Commonwealth Office (FCO)—launched a public consultation in order to collect views from a range of experts on how best to move forward its 2002 proposals on PMSC regulation.9 The FCO prefaced this consultation by stating that, of the six options mapped out in the 2002 proposals, its early preference was for a government-backed system of self-regulation which incorporated the international norms and standards evolving within the Montreux Document.10 Towards the end of 2009, the FCO published 7 See Foreign Affairs Committee, Second Report on Sierra Leone, Session 1998–99 (HC 116); United Nations: Economic and Social Council Commission on Human Rights, ‘The Right of Peoples to Self-determination and its Application to Peoples under Colonial or Alien Domination or Foreign Occupation: Report on the Question of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-determination’, report submitted by Mr Enrique Ballesteros (Peru), Special Rapporteur, pursuant to Commission Resolution 1998/6. E/CN.4/1999/11, 13 January 1999; D Donald, ‘After the Bubble: British Private Security Companies after Iraq’, Whitehall Paper 66 (Royal United Services Institute, 2006); EDM 690 Private Military and Security Companies, 22 January 2007; F Mathieu and N Dearden, ‘Corporate Mercenaries, the Threat of Private Military and Security Companies’, War on Want Report (23 October 2008), available at http://www.waronwant.org/attachments/Corporate%20Mercenaries.pdf (accessed on 20 March 2011). 8 See eg HC 577 (2001–02), Private Military Companies: Options for Regulation (HMSO, London, 2002) 12. 9 Foreign and Commonwealth Office, Consultation on Promoting High Standards of Conduct by Private Military and Security Companies Internationally (HMSO, London, April 2009) (FCO Consultation). 10 UN Doc A/63/467-S/2008/636, ‘Montreux Document: On Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflicts’ (ICRC, Geneva, August 2009).

The United Kingdom 311 an official response to this consultation in which it weighed up the 25 submissions it had received before re-expressing its preference for the exact same self-regulatory arrangement.11 In January and February 2010, the FCO then brought together a group of key stakeholders from the government, industry, non-government organisations (NGOs), academia and civil society in order to discuss once more the pros and cons of this arrangement. While there was substantial discord among working party members regarding the best way forward, the outcome of this more select consultation, as set out in a further FCO summary document published in April 2010, was once again the same: the preferred option was for a government-backed system of self-regulation which incorporates international norms and standards.12 The UK government, it seems, is set on this policy direction.13 Against this backdrop, the purpose of this chapter is to provide a critical review of the UK government’s proposed strategy for PMSC regulation. It is divided into four sections. To begin with, section II maps out the broad legislative context of PMSC regulation in the UK by first reviewing the extant legislation which covers this sector and then illustrating how this legislation does not—in its present form— represent a coherent framework for controlling PMSC activities. This legislative context is important because it helps to explain why the government has sought to develop completely new regulatory measures in this policy area. The subsequent two sections will then focus upon the content of these new regulatory measures. Section III examines the national component of the government’s strategy for regulating PMSCs: a government-backed system of self-regulation. Section IV then explores the international component of this strategy: engagement with the international norms and standards enshrined in the Montreux Document and the related code of conduct for private security companies. These sections both review the development of these regulatory measures and, at the same time, advance a number of key criticisms of this hybrid national-international strategy. Section V concludes with a few reflective comments on how the government has arrived at this hybrid strategy and what this policy direction implies about the future of PMSC regulation in the UK. 11 Foreign and Commonwealth Office, ‘Public Consultation on Promoting High Standards of Conduct by Private Military and Security Companies Internationally: Summary of Responses’ (December 2009) (FCO Response). 12 Foreign and Commonwealth Office, Private Military and Security Companies: Summary of Public Consultation Working Group (HMSO, London, April 2010). 13 The most recent confirmation of this policy direction was given on 10 March 2011, when the Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr Henry Bellingham) reinforced the government’s commitment to the self-regulation/ international norms formula in a written ministerial statement—see HC Deb (2010–11), vol 524, c 78WS.

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Alexandra Bohm, Kerry Senior and Adam White I I . LEGISLATIV E C ON TEX T

Before analysing the development of the government’s proposed strategy for regulating PMSC activities, it is useful to briefly consider the broader legislative context in this sector. There are a number of extant pieces of legislation which already cover various parts of the private military industry including: the Foreign Enlistment Act 1870; the Human Rights Act 1998; the International Criminal Court Act 2001; the Private Security Industry Act 2001; the Armed Forces Act 2006; and UK export control legislation. Importantly, though, this patchwork of legislation does not add up to a coherent framework for regulating PMSC activities. Indeed, as this section will demonstrate, the probability of successfully controlling PMSC activities using these items of legislation is extremely limited. This observation in turn helps to explain why the UK government has rejected this extant legislation in favour of a completely new policy direction. The first piece of contextual legislation is the Foreign Enlistment Act 1870. Significantly, this is the only item of extant legislation which directly relates to the activities of PMSCs in foreign territories. The Act makes it an offence for a British subject without licence from Her Majesty to enlist in the armed forces of a foreign state at war with another foreign state which is itself at peace with the UK, or for any person in Her Majesty’s Dominions to recruit any person for such service. No prosecutions have ever been brought under the Act, in large part due to the difficulty of assembling evidence of non-state military activities taking place abroad, and it is questionable whether the Act would cover the internal conflicts of today. Indeed, the Diplock Committee of 197614 concluded that the Act was largely ineffectual and should accordingly be repealed and then replaced with legislation containing extraterritorial application. However, such extraterritorial application of UK legislation is also problematic owing to jurisdictional issues and the same difficulties of collecting evidence abroad in order to mount a successful prosecution— which, it should be noted, are among the main justifications for the UK government’s current endorsement of PMSC self-regulation over any form of national licensing regime (as the next section will illustrate). The second piece of contextual legislation is the Human Rights Act 1998, which in theory could apply to PMSC misconduct abroad. For instance, the Al-Skeini case decided by the House of Lords in 200715 held that the Act applies to British-controlled detention facilities abroad. The case concerned the abusive conduct of British soldiers towards individuals in detention which ultimately caused the death of a detainee. It is not 14 Diplock Committee, ‘Report of the Committee of Privy Counsellors Appointed to Inquire into the Recruitment of Mercenaries’, Cmnd 6568 (1976). 15 R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26.

The United Kingdom 313 difficult to imagine such abuse being carried out by employees of private firms contracted to run detention facilities abroad, especially in light of the recent controversies surrounding the death of a foreign national being deported by Group 4 Securicor officers under contract from the Home Office.16 However, a caveat to the extraterritorial application of the Human Rights Act 1998 arises from the Al-Jedda case, again decided by the House of Lords in 2007,17 where the right to liberty of a detainee was said to be set aside by the Chapter VII obligations imposed by the United Nations Security Council under Resolution 1546. The court held that, to the extent necessary to maintain security in Iraq, the obligations imposed by the Security Council prevailed over those in the European Convention on Human Rights by reason of Articles 25 and 103 of the United Nations Charter. An individual being subjected to human rights abuse by employees of private contractors while in detention would therefore only be able to bring a case against the British government before British Courts and only if the acts of PMSCs could be attributed to Britain. This offers a small measure of protection to individuals, but only insofar as they can claim against the British government—they currently have no access to justice directly against UK-based PMSCs in British courts, though it might be possible before the courts of the host state, depending upon immunity conditions.18 The third piece of contextual legislation is the International Criminal Court Act 2001 (ICCA). In addition to the possible application of ordinary English criminal law to acts outside the UK,19 a British employee of a PMSC suspected of war crimes, crimes against humanity or genocide could be prosecuted in English courts for violation of this Act. Section 1 of the Act provides that it ‘is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime’ in England or Wales, or ‘outside the United Kingdom by a United Kingdom national, a United Kingdom resident or a person subject to UK service jurisdiction’. The Coroners and Justice Act 2009 amended the ICCA to provide more certainty over the term ‘resident’. It did this by 16 P Lewis and M Taylor, ‘G4S Loses UK Deportations Contract’, The Guardian, 29 October 2010, http://www.guardian.co.uk/uk/2010/oct/29/g4s-deportations-contractreliance (accessed on 14 March 2011). 17 R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58. 18 K Senior and N White, ‘The Regulatory Context of Private Military and Security Services in the UK’, PRIV-WAR National Reports Series, UK National Report 2009, 26, available at http://www.PRIV-WAR.eu. 19 English criminal law is largely based on the territorial principle of jurisdiction, meaning that the offence has to be committed in the UK; only a small number of offences when committed abroad can be prosecuted on the basis of the British nationality of the offender—see DJ Harris, Cases and Materials on International Law (Sweet & Maxwell, London 2004) 267–68. A British soldier, though, is subject to military law while abroad and this may include a large element of English criminal law—P Rowe, The Impact of Human Rights Law on Armed Forces (Cambridge, Cambridge University Press, 2005) 133–34.

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setting out specific categories of individuals to be treated as ‘resident’ for the purposes of the Act irrespective of what would otherwise be the case, and it also gave criteria for courts to take into account when assessing whether or not someone was resident. The Coroners and Justice Act also extended the ICCA to cover offences committed since 1991 to the full extent permissible under the legal principles applying to retrospection. If individuals employed by a PMSC are British nationals, they are subject to the jurisdiction of British courts under the ICCA, as well as to the International Criminal Court if Britain is unable or unwilling to try the individual.20 However, only one soldier tried by court martial for abuse of prisoners in Iraq has been convicted of committing a war crime under the Act after admitting inhumane treatment.21 Furthermore, PMSCs typically operate in areas of conflict which are not declared as ‘war zones’ and also claim that they are not engaged in offensive military action, which restricts the potential scope of application of the Act to PMSC misconduct. The fourth piece of contextual legislation is the Private Security Industry Act 2001, which covers the activities of PMSCs operating in the domestic UK security sector. The Act stipulates that all individuals working in the seven regulated sectors of the domestic private security industry must have a licence.22 In order to obtain a licence, these individuals must undergo a number of ‘fit and proper person’ tests, including a criminal records check. The rationale behind this process is that such tests will remove from the domestic industry those individuals with a history of misdemeanours who might in turn be more likely to engage in malpractice. Significantly, a number of licensed security officers— especially in the security guarding and close protection sectors—also engage in peacekeeping and military activities in foreign territories. This is because their employers have a commercial presence in both the UK and overseas territories such as Iraq and Afghanistan, and these individuals thus have the opportunity to work in both regions. However, this form of international regulation is incidental not targeted—that is, it is only because these individuals happen to work in the domestic sector that they have licences which extend into foreign territories. And because it is incidental, there are no mechanisms for enforcing the licensing system overseas. The legislation would have to undergo significant amendments if it were to be modified in order to regulate PMSC 20

Senior and White, above n 18, 26. R v Corporal Donald Payne (2007) unreported. See ‘UK Soldier Jailed Over Iraq Abuse’ BBC News 30 April 2007, available at http://news.bbc.co.uk/1/hi/uk/6609237.stm. 22 These sectors are: security guarding (contract), door supervision (contract and in-house); public space surveillance (contract), close protection (contract); cash and valuables in transit (contract), key holding (contract) and vehicle immobilisation (contract and in-house). 21

The United Kingdom 315 activities in foreign territories, and such amendments would have to address the same difficult issues of extraterritoriality noted above. The fifth piece of contextual legislation is the Armed Forces Act 2006. Section 370 and schedule 15 of this Act revised the list of persons who are subject to military jurisdiction. Schedule 15, paragraph 7 raises the possibility that PMSC personnel working on behalf of the government in conflict areas outside of the British Islands with a significant military presence may be subject to service jurisdiction. It provides that: 1. A person is within this paragraph if (a) he is designated for the purposes of this paragraph by or on behalf of the Defence Council or by an officer authorised by the Defence Council; and (b) he is outside the British Islands. 2 A person may be designated for the purposes of this paragraph only if it appears to the Defence Council or the authorised officer that it is desirable to do so (a) in the interests of the person; (b) for the protection of other persons (whether or not members of any of Her Majesty’s forces); or (c) for the purpose of maintaining good order and discipline. However, the ramifications of the Act are unclear—the process would have to incorporate civilians to protect the human rights of individuals subject to service jurisdiction—and the Act was intended to place under military jurisdiction people who are working with the military community, which may not cover the majority of PMSC conduct. The final piece of contextual legislation comes in the form of UK export controls. The Export Control Order 2008 (as amended)—the main statutory instrument resulting from the Export Control Act 2002— has established a licensing regime which covers UK companies seeking to export the following: strategic goods such as security, military and paramilitary equipment; goods which might be used in a weapons of mass destruction programme; and goods to embargoed destinations (note that these destinations are selected in line with European Union regulations). The Export Control Organisation (ECO) is responsible for administrating this licensing regime and is empowered to issue a range of licences including an open general licence, a standard individual export licence and an open individual export licence. Importantly, the ECO has the authority to undertake compliance visits and to enforce penalties for breach of the licence terms and conditions, such as de-registration of licences, fines and potential prison terms. While this legislation has established a robust regulatory system, key PMSC activities remain outside its remit. For instance, it does not cover military training services, the management of military contracts, military consulting services, technical assistance services and many other services which make up a significant proportion of PMSC

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activities.23 As a consequence, UK export legislation is ultimately of limited use in controlling PMSC activities. This section has illustrated that the patchwork of extant UK legislation which covers various parts of the private military sector falls far short of constituting an effective regulatory framework for controlling PMSC activities: the Foreign Enlistment Act 1870 has never been operationalised; both the Human Rights Act 1998 and the International Criminal Court Act 2001 suffer from limitations in terms of jurisdiction and substance; the Private Security Industry Act 2001 extends into the international sphere by coincidence rather than by design; the ramifications of the Armed Services Act 2006 are unclear; and UK export controls do not cover the majority of PMSC activities. Only in limited circumstances, then, would the UK government be able to regulate PMSC activities in foreign territories using these pieces of legislation. It is also significant to note that under these items of legislation those individuals who have suffered from PMSC malpractice would have very few options for pursuing claims against these contractors, thereby further limiting the extent to which the industry can be held to account for its wrongs. These are important observations because they help to explain why the UK government has embarked upon an entirely new policy direction when addressing the issue of PMSC regulation rather than modifying existing legislation. With this in mind, the next two sections explore the development of these new regulatory measures, beginning with national self-regulation before moving on to the envisaged role of international norms and standards.

I I I . NATION AL SELF-REGULATION

Since 2009, when the UK government started to re-engage with the issue of PMSC regulation, it has worked towards the development of two new measures: a government-backed system of self-regulation at the national level and adherence to regulatory norms at the international level. This section analyses the development of the former measure. It is important to begin by noting that, when the government first considered the issue of PMSC regulation back in the late 1990s and early 2000s, the option of a government-backed system self-regulation was by no means the frontrunner. Indeed, this regulatory approach was viewed with scepticism in governmental circles at this time. For instance, the 2002 Green Paper ‘Private Military Companies: Options for Regulation’ set out six regulatory options, including: a ban on private military 23 See E Krahmann and A Abzhaparova, ‘The Regulation of Private Military and Security Services in the European Union: Current Policies and Future Options’, PRIV-WAR Working Papers (2010) 17.

The United Kingdom 317 activity abroad; a ban on recruitment for private military activity abroad; a licensing regime for private military services; public notification of PMSC contracts; the licensing of PMSCs; and, finally, self-regulation.24 While the Green Paper declined to express an explicit policy preference, it was apparent that that self-regulation alone was not thought to be a sufficient regulatory measure. It was reasoned, for example, that selfregulation was not adequate to the task of avoiding a scenario in which UK-based PMSCs are positioned against UK government interests.25 It was also pointed out that the industry-based association which would be responsible for administering any form of self-regulation would suffer from problems relating to monitoring and disciplining its fee-paying members (these problems are examined in detail later in this section).26 This cautionary approach towards self-regulation was then reinforced in the 2003 Ninth Report of the Foreign Affairs Committee,27 which recognised that, while self-regulation would help establish stronger standards of behaviour, it would not be sufficient to prevent disreputable UK-based PMSCs from damaging the UK strategic interests.28 The Ninth Report accordingly argued in favour of a general licensing regime and further recommended that each contract for overseas military or security operations should also be subject to a separate project-specific licence (with the exception of PMSCs engaged in the provision of noncontentious services, for which the government considered a general licence would suffice).29 In addition, the Ninth Report also reasoned that a lighter regulatory framework of registration and notification, where licences would be granted automatically, could only be justified as an exemption to specific licensing for projects carried out under the auspices of organisations such as the UN, NATO, the EU or the UK government.30 During the late 1990s and early 2000s, then, government and parliamentary opinion clearly favoured a stronger regulatory regime as opposed to more laissez-faire approaches. Significantly, this debate was soon afterwards cut off by the increased use of PMSCs to support UK military operations in Iraq and Afghanistan. Indeed, far from pursuing a strong regulatory regime to control PMSC activities, the UK government subsequently granted UK-based PMSCs immunity from host state prosecution in Iraq. This arrangement was established through the auspices of the Coalition Provisional Authority (CPA), which was set up by the US, UK and coalition partners, 24

HC 577, above n 8. HCC 922 House of Commons Foreign Affairs Committee, Private Military Companies Ninth Report of Session 2001–2002 (London, HMSO, 2002) para 76. 26 ibid, para 76. 27 ibid. 28 ibid, para 137. 29 Ibid, para 129. 30 Ibid, paras 127–29. 25

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as occupying powers, in a letter to the Security Council dated 8 May 2003.31 CPA Order No 1732 gave contractors immunity from local laws for actions in the scope of their employment with the multinational force (MNF) and other entities33—although it should be noted that the Order also established a waiver of immunity in certain circumstances, so that the sending states’ domestic courts could still commence legal proceedings against individuals if desired. CPA Order No 17 was then extended to cover the operations of the MNF acting under Security Council Authority once the CPA ceased to be the governing body in Iraq. The Order provided that the immunity ‘shall remain in force for the duration of the mandate authorising the MNF under UN Security Council Resolutions 1511 and 1546 and any subsequent relevant resolutions’. Security Council Resolution 179034 gave the MNF a mandate until 31 December 2008, but stated that the mandate would not be renewed beyond this point.35 Immunity from prosecution was duly lifted in 2009 by a US– Iraqi security agreement, whereupon it was possible for courts in Iraq to exercise jurisdiction over crimes committed by PMSC personnel in Iraq. This was a significant moment not only because it resulted in the successful prosecution in Iraqi courts of a PMSC employee for murder,36 but also because it signified the beginning of the UK government’s reengagement with the issue of PMSC regulation. The UK government began the process of reconsidering its options for PMSC regulation through a new FCO consultation which took place in 2009 and 2010. During the course of this consultation, the government’s former preference for a strong regulatory regime was abandoned in favour of a much lighter government-backed system of self-regulation (together with complementary international norms). It drew upon the formulation of self-regulation which had previously been mapped out in the 2002 Green Paper. This formulation was centred upon the idea of 31 UN Doc S/2003/538, available at http://www.securitycouncilreport.org/atf/ cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Iraq%20S2003538.pdf. 32 Dated June 2003 and amended on 17 June 2004. 33 For example, CPA Order 17 refers to Foreign Liaison Missions and Diplomatic and Consular Missions. 34 18 December 2007. 35 The Iraq/US SOFA of 17 November 2008 states that ‘Iraq shall have the primary right to exercise jurisdiction over United States contractors and United States contractor employees’. This came into force on 1 January 2009. 36 On 28 February 2011, an Iraqi court found UK national Danny Fitzsimons guilty of the murder of the Scotsman Mr McGuigan and the Australian Mr Hoare and the attempted murder of an Iraqi security guard in August 2009 while working for ArmorGroup in Baghdad’s fortified Green Zone. Fitzsimons was previously discharged from the military after suffering from post-traumatic stress disorder and claimed to be suffering from mental health problems when he shot and killed his two colleagues. ArmorGroup had failed to identify his instability during the course of his employment. See C Davies, ‘Briton Danny Fitzsimons Jailed in Iraq for Contractors’ Murders’, The Guardian, 28 February 2011, available at http://www.guardian.co.uk/world/2011/feb/28/danny-fitzsimonsjailed-iraq-murders (accessed 1 March 2011).

The United Kingdom 319 encouraging a newly created PMSC trade association to draw up and enforce a code of conduct to which its members would be required to adhere. The code would, in principle, ensure that participating PMSCs would conduct their operations in a manner which demonstrated respect for human rights, international law and sovereignty, as well as corporate best practice (such as transparency and accountability). Failure to do so would result in expulsion from the trade association. It was anticipated that the reputational and commercial benefits which would result from being a member of the association—that is, being seen as an upstanding contractor in what is often regarded as a rather shady marketplace— would encourage the majority of UK-based PMSCs to register with the association. More specifically, the FCO envisaged that the newly created association would function in a manner similar to the British Security Industry Association (BSIA), which since 1966 had administered a system of self-regulation for PMSCs operating in the UK’s domestic security sector.37 Over the previous four decades, the BSIA’s functions had evolved in two directions: in one direction, its function was to represent the commercial and political interests of its members; in the other, its function was to monitor and enforce its code of compliance through an affiliated—and in theory independent—inspectorate. By separating out these functions, the BSIA sought to reconcile the contradiction of imposing sanctions on its voluntarily fee-paying members, for its enforcement activities were set up as an ostensibly externalised part of its operations, thereby ensuring a degree of independence and credibility. It was this combination of representation and (especially) enforcement which interested the FCO, since it was a relatively inexpensive and not unduly burdensome way of controlling PMSC operations (for both the industry and the government).38 There are a number of reasons why a government-backed system of self-regulation became the preferred regulatory option by the time of the 2009/2010 consultation process. For analytical clarity, these can be separated into official and contextual reasons. The official reasons can be found in the Impact Assessment document which accompanied the consultation. To begin with, it was reasoned that a voluntary code of conduct administered by a trade association would not—in theory at least—disproportionately diminish the competitiveness of PMSCs since it would allow contractors to address instances of malpractice in a flexible, localised and proportionate manner.39 This was contrasted with statutory regulation, which, it was asserted, would be much more 37 HC 577, above n 8, para 76; on the evolution of the BSIA, see A White, The Politics of Private Security: Regulation, Reform and Re-Legitimation (Basingstoke, Palgrave Macmillan, 2010). 38 HC 577, above n 8, para 76. 39 FCO Impact Assessment 10, para 23; FCO Response 14–15, paras 56–59.

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likely to disproportionately constrain the operations of PMSCs with its more rigid and centralised monitoring and enforcement structures.40 This was no doubt an important consideration given that the UK government would certainly not have wanted to increase the price of services it still wanted to procure through the introduction of a burdensome regulatory regime. In addition, the Impact Assessment stated that a voluntary code of conduct administered by the industry would have maximal penetration, given that processes of monitoring and enforcement could take place whenever and wherever the PMSCs were operating.41 This was again directly contrasted with statutory regulation, which, it was maintained, would be much more limited in its monitoring and enforcement activities by the territorial scope of national law42 and would consequently lack ‘teeth’.43 There are also two contextual reasons which help to explain why a system of government-backed regulation emerged as the preferred option. The first is that, during the period between the 2002 Green Paper and the initiation of the 2009/2010 consultation process, a trade association was established which would potentially meet the institutional requirements of the self-regulation option. In February 2006, the British Association of Private Security Companies (BAPSC) was established by the leading the UK-based PMSCs with the aim of promoting their commercial and political interests, enhancing operational standards across the industry and countering a number of criticisms levelled against these contractors by human rights NGOs. The BAPSC Charter commits its members to a code of practice which incorporates elements of international, humanitarian and human rights law, as well as standards of corporate good practice. The code stipulates, for instance, that BAPSC members must: avoid any armed exchange in their operations except in self-defence; decline contracts that might conflict with international human rights law or involve criminal activity; and take all reasonable precautions to protect staff.44 Furthermore, in order to achieve provisional membership, contractors must also undergo a series of ‘basic checks’ centred around corporate good practice, and full membership is only granted by the Membership Committee upon completion of ‘due diligence documentation’ and a ‘self assessment workbook’.45 Significantly, the formation of the BAPSC meant that, when the FCO started to re-examine the issue of regulation in 2009/2010, there was an already existing institutional structure around which it could advance its case 40 41 42 43 44 45

FCO Impact Assessment 17, para 68. FCO Impact Assessment 15, paras 53–57; FCO Response 22, paras 98–102. FCO Impact Assessment 3, 18, para 74; FCO Response 7, paras 2–3. FCO Impact Assessment 11, para 29. BAPSC Charter, available at http://www.bapsc.org.uk/key_documents-charter.asp. BAPSC Self Assessment Workbook iv.

The United Kingdom 321 for a government-backed system of self-regulation, thereby making this option more viable and appealing than it was a decade earlier—even though the BAPSC structure would still have to be modified in order to conform with the FCO’s vision of what self-regulation ought to look like (for example, its enforcement structure would have to be remodelled so as to replicate the BSIA’s ‘affiliated inspectorate’ model). It should be noted, however, that an alternative trade association, Aerospace Defence and Security, has recently replaced the BAPSC as the frontrunner to become the government-recognised industry body responsible for administering a system of self-regulation.46 The second contextual reason which helps to explain why a system of government-backed regulation emerged as the preferred option is that this particular option was much cheaper than establishing any form of statutory regulation. Given the adverse economic climate in which the 2009/2010 consultation process has been taking place—a national recession, electoral pledges to significantly reduce public spending and the subsequent election of a Conservative-led coalition government based on a mandate to cut the deficit—the issue of public expenditure would most certainly have been a prominent factor in both the preelection Labour government’s and post-election coalition government’s decision making process in this area. Indeed, this perhaps explains why, even after numerous objections to self-regulation were voiced at every stage of the consultation process, successive governments have been so determined to proceed with this option. At the present time, then, it seems as though the UK is soon to witness the establishment of a new government-backed system of self-regulation designed to control the activities of UK-based PMSCs. However, given the previous scepticism about the viability of self-regulation in governmental, academic and activist circles, it is important to explore in more detail the two major problems associated with this option. The first problem with self-regulation is that, despite government backing, the system is ultimately a voluntary one. The stipulations set out in the trade association’s code of conduct would only ever cover the operations of those PMSCs which voluntarily choose to sign up to it.47 To be sure, the FCO’s corresponding Impact Assessment estimated that approximately 90% of UK-based PMSCs would voluntarily participate in this system, which if accurate does of course represent the vast majority of the industry.48 A concern would certainly remain, though, regarding the nature of the activities of the remaining 10%, especially since both logic and experience suggest that PMSC malpractice would be concentrated in 46

See HC Deb (2010–11), vol 524, c 78WS. The FCO does recognise this possibility, but does not see the need to regulate this rogue element—see FCO Impact Assessment 17, paras 69 and 72. 48 FCO Consultation 9, para 15. 47

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this unregulated minority. The logic behind this concern is that it would in all probability be the rogue contractors which would choose not to sign up to the code of conduct, since they would be less motivated by the reputational benefits which might accrue from participating in this system.49 There will always be a demand for illicit security activities, especially in conflict zones, and this demand will in most cases be satisfied by rogue contractors. There would be very little incentive for such contractors to sign up to the trade association’s code of conduct, then, since they would not be trading on professional reputation but rather a willingness to be unscrupulous. Seen this way, the problem with these proposals is that they are predicated on the assumption that employers would always be ethical and would always prefer to contract with reputable contractors. This may well be the case for the UK government, but it cannot be assumed to be true for every employer. In essence, this system thus runs the risk of only regulating the ‘good guys’ who want to be regulated and not those contractors which operate at the less reputable end of the industry. Furthermore, the available empirical evidence lends credibility to this scenario. This can be demonstrated by examining the BSIA’s experiences of administering a voluntary code of conduct in the UK’s domestic security sector during the 1980s and 1990s. Obviously there are problems in drawing comparisons between the regulation of PMSCs in the domestic and international spheres, since the nature of PMSC activities in these different settings is often very different. However, given that the envisaged self-regulatory mechanism is in part based upon the institutional structure of the BSIA, this is an important and viable comparison to make. In 1982, the BSIA—with the assistance of the Home Office—began the process of putting together a sophisticated inspectorate through which to ensure that its members conducted their operations in accordance with its code of conduct.50 Estimates suggested that during the mid-1980s this inspectorate was responsible for regulating between 85 and 90% of the domestic industry, which is roughly comparable to the FCO’s estimated sign-up rate to its envisaged regulatory regime.51 Despite successfully maintaining a generally good standard of practice among its membership, which included virtually all of the reputable contractors, the 10% which operated outside of the BSIA’s regulatory remit continued to bring the industry as a whole into disrepute. One extensive piece of research conducted by the Association of Chief Police Officers at that time identified many instances of non-BSIA contractors being run by directors who had extensive criminal records, who were 49

FCO Consultation 9, para 16; FCO Response 20, para 87. White, above n 37, ch 6. 51 HC 397-II (1983–84), Second Report from the House of Commons Defence Committee: The Physical Security of Military Installations in the United Kingdom (London, HMSO, 1984). 50

The United Kingdom 323 employing criminals and who were together engaging in illicit activities. As a result of this research, 47 of the 49 police forces recommended that the limited coverage of the BSIA’s voluntary code of conduct was a threat to public safety and should be replaced by compulsory regulation.52 Due to ongoing problems in the less reputable end of the industry, the will of these police forces—as well as the more legitimate end of the industry—eventually resulted in the (previously examined) Private Security Industry Act 2001, which provided for a comprehensive, statedirected system of private security regulation.53 The point to take from the BSIA’s experience is that, no matter how well run a voluntary system of self-regulation is, the risk remains that rogue contractors will operate outside its remit and continue to engage in malpractice. The second problem with self-regulation is that it would potentially be difficult for a trade association inspectorate to mete out effective sanctions. There are three concerns regarding this mode of enforcement. First, there is the concern that the trade association would not be able to generate sufficient financial resources from its fee-paying members to establish an inspectorate which is capable of administering the logistically complex system of monitoring and enforcement needed to regulate PMSCs operating in conflict zones. In addition to the standard costs of buildings, maintenance, staffing and equipment, such a multinational inspectorate would also incur significant travel and legal expenses. These expenses would have to be funded by the fees of just 20–30 contractors, which is the trade association’s anticipated membership.54 So either the fees would have to be unusually high or the inspectorate would have to operate according to very modest ambitions. Secondly, there is the concern that the inspectorate might face a conflict of interest were it then to find itself in the position of having to exclude one of its fee-paying members. Given the association’s rather limited membership base, such an exclusionary sanction would lead to a notable reduction in its income (potentially 5% if the association has only 20 members). It is possible, then, that it might refrain from excluding or sanctioning a member contractor so as to guarantee its income. Thirdly, there is the concern that exclusion would have only a nominal impact upon the contractor in any case since it could continue to operate outside of the inspectorate’s regulatory remit. Indeed, this is well illustrated by the fact that, when the International Peace Organisations Association—a Washington-based trade association which has numerous institutional parallels with the system envisaged by the FCO—commenced enquiries into the 52 Association of Chief Police Officers, ‘A Review of the Private Security Industry’ (North Wales Police, 1988). 53 White, above n 37, ch 8. 54 See, eg Senior and White, above n 18, 3–9 for a list of UK PMSCs and 23 for the trade association’s likely membership figures.

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Nisoor Square incident where one of its members, Blackwater, killed a number of Iraqi civilians, the contractor simply excluded itself from the IPOA and continued to trade under a new name (Xe).55 The threat of excluding a contractor from a voluntary system is thus rather empty. These concerns demonstrate, then, that the enforcement mechanisms envisaged in the self-regulation are potentially highly problematic (as indeed was recognised in the 2002 Green Paper and the 2003 Ninth Report of the Foreign Affairs Committee). It is important to emphasise, however, that national self-regulation represents only one part—albeit the major part—of the proposed strategy for regulating UK-based PMSCs. This national component would be supplemented by international norms and standards, thereby adding a further layer of regulatory control. The next section provides a critical review of this layer.

I V. I NT E R NATION AL N ORMS AN D STAN DARDS

In addition to national-level self-regulation, the UK government has sought to develop and sign up to a complementary patchwork of international norms and standards which would also have the effect of holding the actions of UK-based PMSCs to account in a variety of ways. This patchwork includes: the Montreux Document; an international code of conduct for private security companies; and additional stipulations set out in the 2009/2010 FCO consultation document. This section will provide a critical review of these three initiatives. It will argue that UK government’s commitment to these norms and standards has so far been equivocal at best and that it therefore seems unlikely that these new international regulatory measures are destined to serve as a meaningful supplement to the system of self-regulation examined in the previous section. To begin with, throughout the 2009/2010 consultation process the FCO consistently supported the ‘Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict’, which is an initiative launched by the Swiss government and the International Committee of the Red Cross (and is discussed in Chapter 2).56 The Montreux Document is a statement of good practices to be adopted by states when contracting with PMSCs and has 35 signatories, including the UK government. While on the surface this appears to be a positive means of reinforcing national self-regulation, 55 See, eg R Lardner, ‘Blackwater Withdrawal Ends Inquiry’ USA Today 13 August 2007, available at http://www.usatoday.com/news/world/2007–10–12-blackwater_N.htm (accessed on 6 January 2010). 56 FCO Consultation 10, para 18.

The United Kingdom 325 it has (at least) three drawbacks. The first drawback is that it is not legally binding. As such, it simply serves to highlight state obligations rather than ensuring that states actually make good on these obligations. Consequently, there is little incentive for states to conform to this good practice when it conflicts with their national interest. A particularly relevant example of this problem can be found in the fact that, while the Montreux Document recommends that states adopt a licensing or authorising regime at the national level, the UK government has used the 2009/2010 consultation process to disregard this recommendation in favour of a government-backed system of self-regulation, thus illustrating that in this instance national interest trumped international obligations57 The second drawback is that the Montreux Document is primarily concerned with international humanitarian law—as opposed to human rights law—and therefore only applies in limited situations of armed conflicts. The third drawback is that the Document provides no channels of recompense for victims of PMSC malpractice. Overall, then, the ability of the Montreux Document to exert any influence over PMSC activities is extremely limited and its coverage is narrowly defined. An additional international standard-setting and oversight initiative has since emerged in the form of an international code of conduct for private security providers (the Code), and has been designed to operate alongside the Montreux Document.58 While the main actors responsible for developing this code have been PMSCs themselves, the Swiss Department of Foreign Affairs and the Geneva Centre for the Democratic Control of Armed Forces, the UK government has also played a role. With its focus on PMSCs themselves rather than states, and its promotion of the ‘respect, protect, remedy’59 framework on human rights and business developed by the Special Representative to the Secretary General John Ruggie, the Code constitutes a useful accompaniment to the Montreux Document which emphasises state obligations and international humanitarian law. Like the Montreux Document, however, the Code is another ‘soft law’ instrument which is not itself legally binding. For instance, while signatories have in theory committed to the establishment of an independent external mechanism for effective governance and oversight, no such mechanism has yet been instituted.60 Members also have a responsibility to self-report serious incidents through an independent auditing system, but the effectiveness of such an approach is questionable when it is considered that PMSCs have a very poor 57

Montreux Document, above n 11, pt 2, paras 54–56. International Code of Conduct for Private Security Service Providers, 9 November 2010, available at dcafdev.ethz.ch/.../INTERNATIONAL%20CODE%20OF%20CONDUCT_ Final%20with%20Company%20Names.pdf (accessed on 14 March 2011); see ND White, Chapter 1 above, for a detailed description of the Code. 59 The Code, para 2. 60 The Code, para 7, 12. 58

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record of reporting such incidents. And even if incidents are reported, there is no guarantee that contractors will be penalised appropriately. Given these constraints, the code has unsurprising attracted some high profile criticism. For instance, José Luis Gómez del Prado—the President of the UN’s Working Group on the Use of Mercenaries—acknowledges that the Code is a ‘good document’, but views the international selfregulatory approach as ‘window dressing’.61 He argues in favour of a ‘legally binding instrument’ which will provide a real enforcement tool for controlling PMSCs Activities.62 He argues that ‘voluntary codes of conducts for [private military and security contractors] may be a useful mechanism. However . . . they remain insufficient and should be combined with the elaboration and adoption of legally binding instruments at the national, regional and international level.’63 Finally, the 2009/2010 FCO consultation document sets out two further stipulations designed to control PMSC activities relating to international sanctions and victim recompense. The international sanctions mapped out in the document include: placing additional conditions in contracts with the abusing contractor; issuing the contractor with an official warning; suspending and removing the contractor from the global security benchmark framework which is envisaged by the FCO;64 and imposing financial penalties upon contractors.65 While these sanctions could indeed be used to successfully regulate PMSC activities, a number of problems can be identified. To begin with, those sanctions which are based upon the logic of warning, suspension and removal within the remit of the global security benchmark suffer from the now familiar problem that, if sanctioned in this way, contractors can simply work outside the benchmark framework. This sanctioning logic therefore lacks teeth. By contrast, the principle of imposing financial penalties upon contractors appears, on the surface, to be more promising. However, experience suggests that such measures can only be enforced against contractors at the national level, not at the international level. With this in mind, it could therefore be reasoned that the appropriate concern at international level should instead be to strengthen the obligations upon states to properly regulate those PMSCs they are contracting with and/ or those PMSCs which are operating within their jurisdictions, and to 61 See N Hodge, ‘Security Firms Plan Code in Bid for Self Regulation’, Wall Street Journal, 20 October 2010, available at http://online.wsj.com/article/SB1000142405270230349610457 5560240402703342.html (accessed on 25 February 2011). 62 JL Gómez del Prado, ‘Why Private Military and Security Companies Should be Regulated’ (Report) 4, available at http://www.reports-and-materials.org/Gomez-delPrado-article-on-regulation-of-private-and-military-firms-3-Sep-2010.pdf. 63 ibid, 5. 64 FCO Consultation 10, para 19, on the creation of a global security benchmark; FCO Consultation 11, para 22(d), on the removal of PMSCs from the benchmark. 65 ibid.

The United Kingdom 327 then leave the matter of enforcement against contractors to the national level, where sanctions (including criminal ones) are most effective. This is not to dismiss either the project of developing stronger international mechanisms of oversight and accountability through the auspices of the United Nations or the project of seeking to apply international legal obligations directly to PMSCs themselves. But, logically speaking, an international/national approach—as envisaged by the FCO—should appreciate that the most effective way forward is to recognise and oversee a state’s due diligence obligations in international law, and then reinforce these with the effective enforcement of those obligations at the national level against PMSCs. The second additional stipulation in the 2009/2010 FCO consultation document relates to victim recompense. The document asserts that victims of PMSC malpractice should rely on cases being brought by host states.66 While is it of course important that channels for victim recompense are clearly mapped out, this does not represent a particularly robust channel. Relying on host states to bring complaints under human rights treaty regimes, for instance, has had a very limited impact in the past, in contrast to those which allow for individual complaints.67 It would make more sense for any proposed complaint system to follow the more successful international models in which a binding treaty commitment provides individuals with independent access to justice and sees that disputes are heard by a committee of independent experts. To be sure, these decisions are not normally enforceable—the committee of experts relies primarily upon its credibility and reputation to ensure that states implement their decisions. But then, by and large, international law does not rely upon the enforcement of judicial or quasi-judicial findings at the international level; instead, it relies upon governments to implement standards and decisions within their own national legal orders.68 Thus, any individual complaints system established at the international level would have to rely on national systems to implement its findings.

V. C ON C LUSION

This chapter has provided a critical review of the UK government’s proposed strategy for PMSC regulation. It has illustrated that, over the past decade, there has been a clear shift in the government’s approach, from an emphasis on compulsory regulatory mechanisms towards 66

FCO Consultations 10–11, para 21. See, eg S Leckie, ‘The Inter-State Complaints Procedure in International Human Rights Law: Hopeful Prospects or Wishful Thinking?’ (1988) 10 Human Rights Quarterly 250. 68 See White, above n 50, for a detailed discussion of the international regulatory mechanisms. 67

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lighter voluntary ones. This lighter regulatory strategy—as set out in the 2009/2010 FCO consultation process—revolves around a combination of national-level self-regulation and adherence to international norms. Importantly, this chapter has also illustrated how these lighter mechanisms at both national and international levels suffer from problems relating to monitoring and enforcement. Because of these problems, then, it seems reasonable to conclude that these mechanisms will not in reality serve to effectively hold the actions of UK-based PMSCs to account. With this pessimistic conclusion in mind, it seems appropriate to bring the chapter to a close by briefly examining the main reasons why the UK government has shifted its approach from the pursuit of compulsory regulatory mechanisms to voluntary ones. There are, it appears, two broad reasons for this shift. The first reason relates to the inherent difficulties in regulating PMSC activities. Contractors such as Armorgroup, Group 4 Securicor and Aegis frequently operate in hostile, war-torn environments, where there is minimal law and order. Indeed, the very business of these contractors is to penetrate those areas of the world where few other organisations—public or private—can function. The problems in administering and executing elaborate and rigorous regulatory frameworks in these environments are thus considerable. As such, it is perhaps unsurprising that during the course of the 2000s the UK government rejected robust regulatory mechanisms such as compulsory licensing regimes in favour of the much lighter options of government-backed self-regulation and complementary international norms. The second reason relates to the political context in which the government’s strategies have evolved. Back in the late 1990s and early 2000s, the UK economy was booming and PMSC operations were relatively narrow in scope. This combination made the idea of licensing a genuine political possibility, even in the face of the inherent difficulties just mentioned. However, when the government returned to the issue in the late 2000s, the economy was in recession, billions of pounds had been spent on the conflicts in Iraq and Afghanistan, and PMSC operations were extensive, largely as a result of the very same conflicts. This shift in political context significantly reduced the political viability of licensing and made the combination of national self-regulation and adherence to international norms much more attractive. The background conditions which seemingly brought about this shift are not contingent but entrenched. As such, the UK government’s strategy will in all likelihood be set in this lighter policy direction for the foreseeable future.

16 United States: Law and Policy Governing Private Military Contractors after 9/11 KRISTINE HUSKEY AND SCOTT SULLIVAN*

I . I NTRODUC TION

U

PON HIS APPOINTMENT as Secretary of Defence in 2001, Donald Rumsfeld began a process he called ‘transforming the military’, which centred on downsizing the number of active military personnel and accelerating the move to the utilisation of high technology.1 The goal was to create a smaller, more nimble fighting force less concerned with the ability to fight a two-front war against a Sovietesque threat and more capable of handling low-intensity conflict for short periods of time.2 In many ways, Secretary Rumsfeld’s goals represented only the latest strategy in fulfilling a long-standing policy of force-reduction following the conclusion of the cold war. In fact, the increasing reliance on private contractors began under President Clinton and was previewed in the US military action in Kosovo. This preview, however, was insufficient to foreshadow the size and scope of such use in the current US conflicts in Iraq and Afghanistan. By 2004, with an open-ended commitment unfolding in Iraq and substantial and continuous military commitment to fighting Al Qaeda and the Taliban in Afghanistan, the military possessed insufficient forces and resources to sustain and complete either mission. The US government found private military contractors ‘an attractive answer to many of their * The authors would like to thank Meagan Messina, 3L J.D./DCL. Candidate, Louisiana State University Law Centre, for her research and editorial assistance. 1 D Rumsfeld, ‘Transforming the Military’ (May/June, 2002) 81(3) Foreign Affairs 23. 2 ibid.

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problems’.3 Responding to the clear needs in Iraq and Afghanistan, the private military industry capitalised on this opportunity and the industry quickly entered into a period of exponential growth. This surge of hyperactive growth increased not only the sheer scale of the private military industry, but also the great need for security and people with specialised technical expertise, thus pushing the private military industry to create, develop and fill new services. The considerable reliance on contractors in current contingency operations, which began during the Bush administration, has continued to grow during the Obama administration. Contemporaneously, previous policies and practices have come under intense review, and many visible changes aimed at tighter regulations and actualised accountability have occurred. Further, this intersection of tremendous force requirements and a dramatically reduced military force has proved highly influential in the development of US foreign affairs and, indirectly, the contours of international law. This chapter provides a comprehensive discussion of the use of private military and security contractor companies and their personnel4 by the US since 9/11 and the applicable legal regimes, with particular attention paid to the use of such firms in Afghanistan and Iraq. Section II describes the incorporation of contractors into the larger coalition military presence, providing a quantitative and qualitative analysis of the use of contractors. Sections III, IV and V unveil the universe of mechanisms that regulate, govern and hold accountable private contractor firms and their personnel. Section III examines the process of contracting with the US government, and the review and oversight of military contractors. Sections IV and V address the criminal and civil legal regimes that attempt to hold private military firms and their personnel accountable for their conduct while working overseas in a zone of armed conflict. Lastly, section VI addresses US participation in international regulatory regimes.

I I . T H E NAT URE OF US P RIVATISED MILITARY C ONT R AC T I NG IN IRAQ AN D AFGHAN ISTAN

This section examines the contemporary quantitative and qualitative use of military contractors by the US during pre-conflict, actual conflict and 3 PW Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca, NY, Cornell University Press, 2003) 244. 4 For convenience, the corporate entities of private military companies and private security companies will be referred to as PMCs or PSCs, respectively, and the terms ‘military contractor’, ‘contractor’ and ‘contractor personnel’ will refer to individuals. PSCs are simply a subset of PMCs and, therefore, any reference to military companies includes security companies, unless specifically noted otherwise.

The United States 333 post-conflict situations. Quantitatively, the breadth and scope in which contractors have been and are used by the US in the Iraq and Afghanistan conflicts is essential to understanding the increased dependency of US policy on contractors for future conflicts. Qualitatively, the changing nature of the roles played by contractors demonstrates US dependency on private industry in a more fundamental way, and how military contractor use may develop in the future, presenting new options and challenges for any nation-states in conflict. Though the chapter includes data from both Iraq and Afghanistan, there is substantially more available information on Iraq. Historically, the amount of money and contract personnel committed to operations in Afghanistan is statistically small in comparison with the money and contract personnel committed to Iraq.5 However, over the last few years, there have been consistent decreases in numbers in Iraq and slight increases in Afghanistan, which have only recently begun to decline, with the total number of contractors decreasing in the entire USCENTCOM area.6 Due to the surge in troop and contractor levels in Afghanistan during the Obama administration, government and private reporting now includes more contractor information on Afghanistan.

A. Military Contractors by the Numbers This subsection provides the number and nationalities of contractor personnel operating in Iraq and Afghanistan, and the number of contractors killed and wounded in those countries. The most current data cover only contractors operating under Department of Defence (DoD) contracts. The DoD, however, makes up approximately 95% of all US-agency funded contracts overseas.7 As of January 2011, there were 71,142 contractors in Iraq, with a troop to

5 The US Congressional Budget Office (CBO) reported that the US government obligated $10 billion in contracts to Afghanistan between 2003 and 2007, whereas it committed $85 billion in Iraq over the same time period. CBO, ‘Contractors’ Support of US Operations in Iraq’ (2008) 1 (CBO Report). 6 As of January 2011, there were approximately 176,161 contractor personnel working for the Department of Defence (DoD) in the entire CENTCOM AOR (Area of Responsibility). DOD USCENTCOM, ‘1st Quarter Contractor Census Report’ (2011) 1 (19 January 2011 DoD Contractor Report). The number of contractors outside of Iraq and Afghanistan make up less than 2% of the total contractor population in the USCENTCOM AOR. ibid. USCENTCOM is responsible for operations in 20 countries in and around the Middle East, including Afghanistan, Bahrain, Egypt, Iran, Iraq, Jordan, Kazakhstan, Kuwait, Kyrgyzstan, Lebanon, Oman, Pakistan, Qatar, Saudi Arabia, Syria, Tajikistan, Turkmenistan, UAE, Uzbekistan and Yemen. See M Schwartz, DoD, ‘Contractors in Iraq and Afghanistan: Background and Analysis’, Cong Research Serv R 40764 (2010) 4 (DoD Defence Contractors). 7 See DoD Defence Contractors, ibid, 4.

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contractor ratio of 1:1.29.8 In comparison, in March 2010, there were 95,461 contractors in Iraq, with a ratio of approximately 1:1.9 Thus, while the overall number decreased by 4%, the ratio of contractors increased, perhaps due to the wane in actual combat and the increase in postconflict or reconstruction operations, which are typically performed by contractors. In fact, the number of both troops and contractors in Iraq has been steadily declining since December 2007. In a 2008 report, the total number of contractors operating under a US government-funded contract in Iraq was between 190,000 and 196,000.10 The contractor to soldier ratio was also 1:1 at the time, and there were more contractors working directly or indirectly for the US in Iraq then the sum total of all other coalition forces deployed there.11 In terms of nationalities, as of January 2011, third-country nationals made up more than half of all DoD contractor personnel in Iraq (57%), while US citizens comprised 28% and local nationals 15%.12 The use of non-US citizens as contractors, particularly as day labourers or for short periods, has compounded the already difficult task of regulating, monitoring and holding accountable contractors. Regarding Afghanistan, as of January 2011, there were 87,483 DoD contractors in the country, with a troop to contractor ratio of 1:.84.13 In comparison, in March 2010, there were 112,092 contractors in Afghanistan, with a troop to contractor ratio of 1:1.42.14 The total number of contractors in Afghanistan has also been on the decline, but only very recently. In December 2008, contractors made up 69% of the DoD’s workforce in Afghanistan, which was the highest recorded percentage of contractors used by the DoD in any conflict in the history of the US.15 In January 2011, local nationals made up 53% of all contractor personnel—down from 70% in March 2010—while third-country nationals comprised 25% and US citizens 22%.16 The nature of the increase of contractors in the field goes far beyond the expansion of raw numbers. The US deployment in World War I included a troop to contractor ratio of 24:1, which narrowed to 7:1 in World War II and then to 5:1 in the Vietnam conflict. In March 2010, the 8

19 January 2011 DoD Contractor Report, above n 6, 1. See DoD Defence Contractors, above n 6, 5; Joint Chiefs of Staff (JCS), ‘Boots on the Ground’ (2010) (JCS March 2010 Report). 10 CBO Report, above n 5, 8. 11 This estimate includes personnel who work directly for the US government’s prime contractors and, to the extent possible, subcontractors who work for other contractors: ibid. 12 19 January 2011 DoD Contractor Report, above n 6, 1. 13 ibid. 14 See JCS March 2010 Report, above n 9; 19 January 2011 DoD Contractor Report, above n 6, 1. 15 DoD Defence Contractors, above n 6, 10. 16 See 19 January 2011 DoD Contractor Report, above n 6, 2; DoD Defence Contractors, above n 6, 12. 9

The United States 335 troop to contractor ratio in Afghanistan was 1:1.42, one of the highest recorded percentages of contractors in history.17 The current 1:1.29 troop to contractor ratio in the Iraq theatre is more than two times higher than the ratio during any other major US conflict, with the exception of the US military action in the Balkans during the 1990s.18 The numbers of contractor deaths and injuries are also difficult to accurately estimate. For example, contractor deaths are not included in the official Iraq Coalition Casualty Count. The Department of Labour (DoL) publishes statistics, though with the disclaimer that they are neither complete nor official.19 A recent DoL report indicates that, from 21 September 2001 to March 2010, there were 1,487 contractor deaths in Iraq and 521 such deaths in Afghanistan, with approximately 45,000 reported injuries.20 In comparison, 4423 service members have been killed in Iraq since 2003 and 1,301 troops have been killed in Afghanistan since 2001.21 More recent reports, however, indicate that from January to September 2010 more US-funded contractors working in Iraq and Afghanistan have died than US soldiers during that same time period.22 When compared to US troop losses, the number of contractors killed may seem low, given the substantial number of contractors in the Iraq and Afghanistan theatres. However, statistically speaking, contractors have suffered the second most casualties in the Iraq conflict. In other words, contractors in Iraq have suffered more total losses than all other coalition forces combined and more than any single division of the US Army.23

B. Government Spending on Private Military Contracts in Iraq and Afghanistan The three leading US agencies that make up the majority of contract awards for contingency operations are the DoD, the Department of State

17

DoD Defence Contractors, above n 6, 5. While the US operation in the Balkans in the 1990s is roughly comparable with the current ratio in Iraq, it is noteworthy that the Balkans conflict involved no more than 20,000 US military personnel. See CBO Report, above n 5, 9. 19 See US Department of Labour Office of Workers’ Compensation Programme (OWCP), ‘Defence Base Act Case Summary Report’ (2011). 20 ibid. 21 See ‘Iraq Coalition Casualty Count: Operation Enduring Freedom’ (icasualaties.org, 2009), available at http://www.icasualties.org/ (accessed on 11 April 2011). 22 See, eg N Wakeman, ‘Contractor Death Toll Surpasses Military’s in Iraq, Afghanistan’ (Washington Technology, 23 September 2010), available at http://washingtontechnology. com/articles/2010/09/23/contractor-death-toll-iraq-afghanistan.aspx (accessed on 11 April 2011). 23 Singer, above n 3, 246. 18

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(DoS) and the US Agency for International Development (USAID). The DoD is responsible for obligating 90–95% of the total contracts. Looking at DoD contracts only, during fiscal year 2007 and the first half of fiscal year 2008 alone, the agency reported approximately $30.3 billion in obligations on 55,603 contracts active in Iraq or Afghanistan, including performance not only in those countries but also in nearby countries.24 The DoD’s contracts were for a variety of goods and services, including maintenance of DoD facilities, reconstruction, security and supplies. From 2003 to 2007, US government agencies awarded $85 billion in contracts for work to be principally performed in the Iraq theatre. This amount accounts for almost 60% of the $144 billion in funding for all US government activities in Iraq from 2003 to 2007. The DoD awarded the majority of contracts, totalling $76 billion, while the USAID and DoS obligated $5 billion and $4 billion, over the same period.25 The US Department of the Army is the largest contractor in the Iraq theatre. From 2003 to 2007, the US Army awarded $57 billion for contracts or 75% of the total money obligated by the US DoD on contracts in the Iraq theatre.26 The Departments of the Air Force, the Navy (which includes the Marine Corps) and the Defense Logistics Agency awarded the remaining $19 billion in DoD contract obligations.27 The amount obligated by the government to private contractors is significant when viewed in relation to past wars. Looking at the largest Iraq war-related contract awarded to Kellogg Brown and Root (KBR) as an example, this approximately $22 billion contract, which requires KBR to provide military mission logistics and assist in the restoration of Iraqi oil production, is roughly three times what the US government paid to fight the entire 1991 Persian Gulf War. When putting other wars into current dollar amounts, the US government paid KBR about $7 billion more than it cost the US to fight the American Revolution, the War of 1812, the Mexican-American War, and the Spanish American War combined.28

24 US Government Accountability Office (GAO), ‘Contingency Contracting: DOD State and USAID Contracts and Contractor Personnel in Iraq and Afghanistan’, GAO-09-19 (2008) 20. 25 ibid, 3. 26 ibid, 23. 27 CBO Report, above n 5, 3. US agencies other than the DoD, DoS and USAID obligated a total of less than $300 million. This category includes the Departments of Agriculture, Commerce, Health and Human Services, the Interior, Justice, Transportation, and the Treasury, as well as the Broadcasting Board of Governors and the General Services Administration. ibid. 28 Singer, above n 3, 247.

The United States 337 C. Private Military Contractors and Their Expanded Role While the numbers and ratios of, and amount of money obligated to military contractors in Iraq and Afghanistan are enormous jumps from previous conflicts, the evolving role of contractors in pre-conflict, conflict and post-conflict operations has also caused many observers to pause. Contractor personnel roles are at the heart of the political and legal challenges facing not only the US, but the international community as a whole. The expansive roles given to contractors by the current world hegemony will, without doubt, affect the planning and judgement of international legality of using contractors by other states in the future. The displacement of public soldiers by the private sector is exposed in harsh relief in the movement of private military companies (PMCs) beyond their traditional role of logistical support into the realms of security and intelligence. (i) Logistics/Base Support Historically, the role of contractors has largely been to provide logistical support. The US conflict in Iraq is no exception, with approximately 65–70% of the contractor personnel contracted through the DoD in Iraq performing traditional support activities such as maintenance, transportation of supplies, food preparation, laundry service, communication, and construction of living, dining and bathing facilities for military personnel.29 Though the roles of military contractors are evolving, the industry’s core base will remain in logistical support. It is the area that the government is least capable of delivering and the area most likely to return the greatest value when subjected to market forces. (ii) Security Similar to the PMCs’ exponential growth in numbers caused by the provision of logistical support during the build-up and pre-invasion of Iraq, it was the ‘ensuing occupation period where the companies’ roles expanded’.30 As the occupation period extended into years, violence in Iraq escalated and the US mission grew more challenging. It was during this post-invasion rise in violence when private security contractors (PSCs) ‘began to be used as a stopgap, in lieu of sending more US troops

29 See 19 January 2011 DoD Contractor Report, above n 6, 1–2; DoD Defence Contractors, above n 6, 8. Despite past statements that it would do so, the DoD does not report the breakdown of services contractors provide in Afghanistan. Typically, the services performed in Afghanistan are similar to those performed in Iraq. 30 Singer, above n 3, 247.

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to fill the lack of significant allied support’.31 Indeed, as reconstruction in Iraq began, the percentage of contractors performing base support remained relatively constant, the percentage working in construction decreased and the percentage performing security increased. PSCs began training the Iraqi police force and army, but, more importantly, they provided on-the-ground physical protection. Quickly, contractors found themselves providing armed convoy escorts, physical protection of military bases and, most notably, personal security to top US and Iraq officials. What constitutes a private security contractor continues to be a subject of debate. Some define private security as protecting a person, place or thing, while others use a broader definition, to include such activities as providing intelligence analysis and the training of military or law enforcement personnel. The National Defense Authorization Act for Fiscal Year 2008 (NDAA FY2008) defines a private security function in the more limited manner: the guarding of personnel, facilities or properties and other activity for which contractors are required to be armed.32 In general terms, a private security contractor can be armed or unarmed, and can provide services such as site security, convoy security, security escort, operational coordination, intelligence analysis, hostage negotiations and security training.33 A January 2010 Congressional Research Service report estimated that there were over 30,000 armed employees working for a variety of government (US and foreign) and private sector clients in Iraq and approximately 25,000 security contractors registered in Afghanistan.34 As of January 2011, there were 8,327 security contractors operating in Iraq under US contracts, down from 12,684 (of which 88% were armed) in September 2009.35 Over 80% of the US-funded security contractors in Iraq were made up of third-country nationals.36 With respect to the percentage of total number of US government contractors, the DoD reported that just over 12% of contractors in Iraq perform security services.37 In January 2011, there were 18,919 security contractors (90–95% of which were armed) operating in Afghanistan under US contracts, a 31

ibid. National Defense Authorization Act for Fiscal Year 2008, Pub L No 110-181 § 864 122 Stat 253 (2008) (codified as amended at 10 USC § 2302) (NDAA FY2008). 33 M Schwartz, ‘The Department of Defence’s Use of Private Security Contractors in Iraq and Afghanistan: Background Analysis and Options for Congress’, Cong Research Serv R40764 (2010) 3. 34 ibid. 35 See DoD USCENTCOM, ‘4th Quarter Contractor Census Report’ (2009) 2 (30 September 2009 DoD Contractor Report); 19 January 2011 DoD Contractor Report, above n 6, 1. 36 19 January 2011 DoD Contractor Report, above n 6, 1. 37 See DoD Defence Contractors, above n 6, 8. 32

The United States 339 marked increase from 11,423 (94% of which were armed) recorded in September 2009.38 Almost 95% of the security contractors operating under US contracts in Afghanistan were local nationals.39 The trend in Iraq and Afghanistan has followed an unsurprising pattern, given the nature and intensity of the involvement of the US in both conflicts at certain points in time and the desire to eventually decrease troop levels in the face of a continuing need for security in the area. In Iraq, the number of armed security contractors went from 5,481 in September 2007 to a high of 13,232 in June 2009, then began to decline in the fourth quarter of 2009—a trend the DoD anticipates will continue as the number of troops decreases.40 In Afghanistan, the number of armed security contractors went from 2,401 in September 2007 to 3,184 in December 2008. From December 2008 to September 2009, the number increased to 10,712 armed contractors, an increase of 236%.41 (iii) Intelligence The realm of the intelligence community (IC) is by nature secretive and, therefore, complete information on the number of, and dollar amounts spent on, private contractors in US intelligence operations is not readily available.42 In July 2010, The Washington Post published a four-part investigative series, ‘Top Secret America’, which was the result of a two-year study of the national security apparatus in the US.43 The Post identified 1,931 private companies engaged in top-secret work for the government, with more than 265,000 contractors holding top-secret security clearances.44 At least 30% of the workforce in the intelligence agencies are contractors.45 Ronald Sanders, head of personnel for the Office of the Director of National Intelligence, has stated that, of contractors working 38 19 January 2011 DoD Contractor Report, above n 6, 3; 30 September 2009 DoD Contractor Report, above n 35, 11. 39 19 January 2011 DoD Contractor Report, above n 6, 1. 40 DoD’s Use of PSCs, above n 33, 6. 41 See DOD USCENTCOM Quarterly Contractor Census Reports FY2008-FY2009 (2009). 42 Sixteen civilian and military government agencies make up the US IC. 43 D Priest and WM Arkin, ‘Top Secret America: A Washington Post Investigation’, Washington Post, 19–21 July 2010 and 20 December 2010. The ‘Top Secret America’ database was put together by compiling hundreds of thousands of public records of government organisations and private-sector companies over two years and more than 20 journalists worked on the investigation. 44 ibid. 45 D Priest and WM Arkin, ‘National Security, Inc, Part II, Top Secret America’, Washington Post, 20 July 2010. In a 2008 report, the Office of the Director of National Intelligence found that approximately 25–27% of ‘core’ intelligence personnel were contractors. See Robert O’Harrow, Jr, ‘Contractors Augment Intelligence Agencies’, Washington Post, 28 August 2008, 1. This figure does not include workers at companies that build spy satellites and computer equipment, cafeteria staffers or security guards (‘non-core’ functions), which ,if counted, contractors would comprise about 70% of the US intelli-

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in intelligence, 27% are involved in intelligence collection and operations and 19% work in analysis job, while 22% manage computer networks or perform other information technology functions.46 Collection and analysis of information have been tasks traditionally within the province of government employees of the Central Intelligence Agency (CIA) or the National Security Agency. Today, at the CIA, private contractors account for roughly one-third of the workforce, or about 10,000 positions, and in the intelligence office at the Department of Homeland Security six out of ten employees are from private industry.47 With respect to dollar amounts, several sources indicate that roughly 70% of the $60 billion spent annually on intelligence, or $45 billion in other words, goes to private contractors.48 More specifically, contractors, though making up 29–30% of the workforce in the intelligence agencies, cost the equivalent of 49% of their personnel budgets.49 The substantial money paid to the private industry is best seen in the example of General Dynamics, which has contracts with all sixteen intelligence agencies, such as a contract worth hundreds of millions of dollars with the Department of Homeland Security, a $600 million contract with the US Air Force to intercept communications, and a $10 million contract with the US Special Operations Command.50 The company makes at least $1 billion a year doing everything from encrypting military communications to deciding which threats to investigate, and is even paid to try to persuade foreigners to align their views with US interests.51 The more significant concern is not necessarily how many contractors work in the IC or how much they cost, though certainly the high numbers posit the need for review, but rather what are the qualitative tasks being performed by private employees whose employment is dictated by a profit-seeking firm. As mentioned, a substantial amount of intelligence collection and analysis is being performed by private contractors. Director of the CIA, Leon Pancetta, has expressed concern about government contracting with private corporations, whose responsibility ‘is to their shareholders, and that does present an inherent conflict’.52 The increase of publicly available information about the degree of gence workforce. G Miller, ‘Contractors Account for a Quarter of US Spy Operations’, LA Times, 28 August 2008. 46

Miller, above n 45. Priest and Arkin, above n 43. 48 S Waterman, ‘US Intel Budget May Reach 60 Billion Dollars’, Washington (UPI), 11 June 2007; see also S Chesterman, ‘We Can’t Spy if We Can’t Buy’ (2008) 19 European Journal of International Law 5; see generally T Shorrock, Spies for Hire: The Secret World of Intelligence Outsourcing (New York, Simon & Schuster, 2008). 49 Priest and Arkin, above n 43. 50 ibid. 51 ibid. 52 ibid. 47

The United States 341 involvement by contractors in the IC, scandals such as those involving Blackwater, CACI and Titan, and a growing concern by members of Congress ultimately led to legislation increasing oversight and accountability of contractors and prohibiting the use of contractors in traditional or inherently governmental intelligence-related functions, such as interrogation.53

I I I . MI L I TARY C ON TRAC TIN G WITH THE US

The contracting process for PMCs and contractor personnel spans several agencies. The most prominent actors in military contracting in the US fall under the guidance of the Office of Management and Budget (OMB) and the procedures outlined in relevant military regulations. OMB Circular A-76 and relevant interpretations thereof generally set out the type of governmental functions that may be contracted out by government agencies.54 Once identified as appropriate for contracting, each relevant agency carries out specific processes to hire a contractor for the specific task to be fulfilled. Military regulations exist to effectuate, control and provide guidance to the hiring and use of private military firms and their contractor personnel. Of these regulations, the programme responsible for managing contractors in a theatre of armed conflict is Army Regulation (AR) 700-137, specifically the Logistics Civil Augmentation Program (LOGCAP), which establishes basic military practice in processing the augmentation of military forces with civilian contractors.55

A. Process and Parameters of Military Contracting The procedural requirements of hiring PMCs that will operate in theatre are governed by overarching US policy prohibiting the outsourcing of ‘inherently governmental’ functions and executed by US military regulations setting forth the process by which contractors enter the field.

53 See, eg Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, Pub L No 110-417 § 1036 (2008) (NDAA FY2009). 54 See White House Office of Management and Budget (OMB), ‘Performance of Commercial Activities’, Circular No A-76 Revised (2003) (OMB Circular A-76). 55 See US Department of the Army, ‘Logistics Civil Augmentation Programme’, AR 700-137 (1985).

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(i) ‘Inherently Governmental’ Functions Congress has defined an ‘inherently governmental’ function as one that is ‘so intimately related to the public interest as to require performance by Federal Government employees’.56 Such a function can ‘determine, protect, and advance United States economic, political, territorial, property, or other interests by military or diplomatic action, civil or criminal justice proceedings’, or ‘significantly affect the life, liberty, or property of private persons’.57 OMB Circular A-76 sets forth US policy prohibiting outsourcing ‘inherently governmental’ activities.58 However, neither the OMB Circular nor accompanying interpretation provides governing principles useful in illuminating how or why certain functions obtain ‘inherently governmental’ status. At best, the Circular advises agencies to take into account whether the provider’s authority to take action will ‘significantly and directly affect the life, liberty or property of individual members of the public’ and the likelihood of the provider’s need to resort to force, especially deadly force, in public or uncontrolled areas.59 The Circular also states that such policies do not prohibit contracting for guard services, convoy security services, or the operation of prison or detention facilities, whether performed by unarmed or armed personnel.60 The Government Accountability Office’s (GAO) only augmentation is to state that certain ‘warfighting, judicial, enforcement, regulatory, and policy-making functions’ and certain capabilities ‘directly linked to national security’ must be retained if demonstrable that in-house assistance helps ‘ensure effective mission execution’.61 The conceptual ease of such abstract judgements, however, has been offset by the difficulty in assigning detailed meaning to each relevant term. The National Defense Authorization Act for Fiscal Year 2009 (NDAA FY2009) required the OMB to review the multiple definitions of ‘inherently governmental function’ and determine whether the various definitions possess sufficient clarity to ensure that only official state actors perform inherently governmental functions.62 The Act further mandates that private security contractors are not authorised to perform 56 See The Federal Activities Inventory Reform Act of 1998, Pub L No 105-270 § 5(2)(A) 112 Stat 2382 (1998) (codified at 31 USC, para 501 note). 57 ibid, para 5(2)(B)(i),(ii) and (iii). 58 OMB Circular A-76, above n 54, para 4b. 59 ibid, Attachment A, s B, para 1c(4). 60 ibid. 61 See GAO, ‘Commercial Activities Panel: Improving the Sourcing Decisions of the Federal Government’, GAO-02-847T (2002) 21. 62 NDAA FY2009, above n 53, para 321. The Commission on Wartime Contracting, established by Congress, is also due to report on the wartime application of ‘inherently governmental’ functions in the summer of 2011. See L Savage, ‘The Trouble with Security’, Maclean’s, 8 November 2010.

The United States 343 inherently governmental functions in an area of combat operations.63 With the exception that the Act specifically states that interrogation is an inherently governmental function and cannot be appropriately transferred to the private sector, however, the mandate simply reflects existing policy without providing additional substance to the restriction’s applicability to security contractors.64 Some of the principles established in NDAA FY2009 were further elaborated in the subsequent year’s defence authorisation bill (NDAA FY2010).65 Through DoD implementation, contractor personnel with the necessary security clearances may be used as linguists and interpreters, and in other ancillary positions supporting DoD missions.66 While contractors are allowed to perform as trainers of and advisors to interrogators, they can only be used as actual interrogators if the Defence Secretary grants a waiver.67 When operating under such a waiver, interrogation contractors must be closely supervised by DoD personnel to ensure such contractors are not performing ‘inherently governmental’ functions.68 While the sheer number and ratio of contractors to troops has risen dramatically over recent years, and despite the need for a well-defined term with clear parameters, particularly in the area of national security, determining the contours of the ‘inherently governmental’ function test has been and remains a constant challenge. (ii) Logistics Civil Augmentation Program (LOGCAP) The defence contracting process is largely guided through LOGCAP for the purpose of supporting military operations undertaken by US troops. The four primary objectives of LOGCAP are: 1. To resolve the combat support and combat service support unit shortfalls represented in operation plans. 2. To consider conversion of existing support units based on availability of contract support in wartime. 3. To provide rapid contracting capability for contingencies not covered by global operation plans.

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NDAA FY2009, above n 53, para 841. ibid, para 1036. National Defense Authorization Act for Fiscal Year 2010, Pub L No 111-84, para 1038, 123 Stat 2190 (2009) (NDAA FY2010). 66 See ‘Nomination of Michael G. Vickers to be Under Secretary of Defence for Intelligence Hearing Before the Senate Armed Services Committee’, statement by Michael G Vickers Under Secretary of Defence for Intelligence, 111th Cong 8 & 17 (2011). 67 NDAA FY2010, above n 65, para 1038(c)(1). 68 ibid, para 1038(b)(2). 64 65

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4. To provide for contract augmentation in the continental US during mobilisation.69 Although LOGCAP is an army programme, it supports the other branches of the US armed forces and joint operations, as well as federal and military coalition partners (following the consummation of bilateral agreements).70

B. Governmental Oversight and Review of Military Contractors Substantial in volume, though perhaps inadequate in substance, a statutory and military regulatory framework exists that is designed to manage the work and behaviour of contractors deployed in zones of armed conflict. (i) The Statutory and Regulatory Framework US government agencies have faced severe criticism of their ability to effectively manage their contractors and respective personnel. Different agencies with projects in the same theatre are often unaware of the activities of the others, and individual departments lack both the resources and the regulations to monitor the activities of contractors for which they are directly responsible. In the first joint effort, a 5 December 2007 Memorandum of Agreement (MOA) between the Department of Defence and the Department of State (applicable only to Iraq security contractors), the DoD and DoS agreed to jointly develop and implement certain ‘core standards’, including: (i) management and coordination of PSC personnel in operations outside secure base and US diplomatic property; (ii) a clear legal basis for holding private security contractor employees accountable under US law; and (iii) recognition of investigative jurisdictions and coordination of joint investigations where the conduct of PSC personnel is to be investigated.71 The MOA contains a detailed annex setting forth rules governing private security contractors with the intention of ‘improv[ing] the coordination and accountability’ of PSCs of both departments.72 Thus, pursuant 69 AR 700-137, above n 55, 1; Colonel K E LeDoux, ‘LOGCAP 101: An Operational Planner’s Guide’ (2005) 37(3) Army Logistician 24. 70 US Department of the Army, ‘LOGCAP 101: Working with LOGCAP in SWA’ (2006). 71 Memorandum of Agreement (MOA) between the Department of Defence and the Department of State on USG Private Security Contractors (Washington, DC, 5 December 2007), available at http://www.defence.gov/pubs/pdfs/Signed%20MOA%20Dec%20 5%202007.pdf (accessed 11 April 2011). The DoS Archive for documents is available at http://2002-2009-fpc.state.gov/c20470.htm. 72 ibid, Annex A: Deliverables. See also s IV, setting forth ‘Rules for the Use of Force’ for PSCs of both the DoD and DoS.

The United States 345 to the MOA, the DoD and DoS began, in earnest, to develop policies for vetting, background investigations, training, weapons authorisations, movement coordination, and incident and response procedures and investigations for contractors. The National Defense Authorization Act for Fiscal Year 2008 (NDAA FY2008) obligated the DoD, DoS and USAID to enter into a Memorandum of Understanding (MOU) relating to contracting in both Iraq and Afghanistan, including investigating possible violations of the Uniform Code of Military Justice (UCMJ) and Military Extraterritorial Jurisdiction Act of 2000 (MEJA).73 Section 862 also specifically required the Secretary of Defence, in coordination with the Secretary of State, to prescribe regulations and guidance relating to screening, equipping and managing private security personnel in areas of major combat operations.74 The regulations were to include tracking private security personnel, authorising and accounting for weapons used by PSCs, and reporting requirements whenever a security contractor discharges a weapon, kills or injures another person.75 In July 2008, the DoD, DoS and USAID signed the MOU, in which they agreed that the Synchronized Predeployment and Operational Tracker (SPOT) would be the system of record for the statutorily required contract and personnel information.76 SPOT is a web-based system that provides greater visibility over contractors. It requires each agency that is responsible to accurately input various data relating to the contractor personnel.77 Though the agencies have made progress, numerous government reports have repeatedly indicated that SPOT falls short of providing information that would help facilitate oversight and inform decision making as well as fulfil statutory requirements.78 Section 854 of the NDAA FY2009 expanded the MOU to include 73 NDAA FY2008, above n 32, para 861. As a practical matter, portions of the MOU would likely duplicate parts of the MOA, but because the MOA was not congressionally mandated, it is not clear what legal effect the MOU has on the MOA. 74 ibid, para 862. 75 ibid. 76 ‘Agencies Face Challenges in Tracking Contracts, Grants, Cooperative Agreements, and Associated Personnel’, statement of John P Hutton, GAO Director of Acquisition and Sourcing Management, at the hearing before the Subcommittee on Oversight and Investigations Committee on Armed Services House of Representatives Iraq and Afghanistan, 111th Cong 2 (2010) (2010 GAO Hearing). 77 GAO, ‘DOD State and USAID Face Continued Challenges in Tracking Contracts Assistance Instruments and Associated Personnel’, GAO-11-1 (2010) 5–6 (GAO Challenges). In April 2010, the DoD, DoS and USAID revised their MOU to incorporate legislative changes pertaining to SPOT, but lacked agreement as to how to implement such changes: ibid, 7. 78 ‘Further Improvements Needed in Agency Tracking of Contractor Personnel and Contracts in Iraq and Afghanistan’, statement of John P Hutton, GAO Director of Acquisition and Sourcing Management at the hearing before the Commission on Wartime Contracting in Iraq and Afghanistan Contingency Contracting, 111th Cong 5 (2009); see, eg GAO Challenges, above n 77, 1.

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reporting requirements for allegations of offences in violation of the UCMJ or MEJA committed by or against contractor personnel and provisions for ensuring that contractor personnel are aware of their responsibility to report such crimes, and delineates responsibility for victim and witness protection and other assistance to contractor personnel in connection with such crimes.79 The National Defense Authorization Act for Fiscal Year 201180 has attempted to enhance oversight and accountability of contractors by including, among others, the following provisions: (i) the failure of contractors to comply with certain regulations shall be included in the appropriate databases and may be considered in awarding or denying award fees, and, in the case of severe or repeated failure, may be a basis for suspension or disbarment;81 (ii) increasing the application of contractor regulations to cover ‘significant military operations’, where previously only ‘combat operations’ were covered;82 (iii) reviewing thirdparty standards applicable to private security contractors, establishing standard practices for the performance of private security functions that reflect input from third parties, and establishing criteria for weapons training programmes for private security contractors;83 and (iv) requiring relevant inspector generals to report on the extent to which military and security contractors engaged in Afghanistan have been responsible for the deaths of Afghan civilians.84 The NDAA FY2008 also established the Commission on Wartime Contracting (CWC), an independent, bipartisan legislative commission created to study wartime contracting in Iraq and Afghanistan.85 Section 841 requires the Commission to study federal agency contracting for the reconstruction, logistical support of collation forces and the performance of security functions in Iraq and Afghanistan, including assessing waste, fraud, abuse and mismanagement. The CWC has the authority to hold hearings and refer to the Attorney General any violation it identifies in carrying out its duties and is required to issue two reports during its tenure, which lasts until 2011.86 It issued an interim report in June 2009 and has issued three special reports since its formation.87 79 NDAA FY2009, above n 53, para 854. Note that these provisions do not apply to contracts with the CIA. 80 National Defense Authorization Act for Fiscal Year 2011, Pub L No 111-383 124 Stat 4137 (2011) (NDAA FY2011). 81 ibid, para 831. 82 ibid, para 832. 83 ibid, para 833. 84 ibid, para 1219. 85 NDAA FY2008, above n 32, para 841. 86 See generally the website for the Commission on Wartime Contracting in Iraq and Afghanistan: http://www.wartimecontracting.gov/index.php. 87 ibid; see also Commission on Wartime Contracting in Iraq and Afghanistan Interim Report to Congress, ‘At What Cost? Contingency Contracting in Iraq and Afghanistan’ (2009).

The United States 347 Finally, there exists US law that regulates the business of private military companies more broadly. The US Arms Export Control Act of 196888 sets out a series of export control regulations knows as the International Traffic in Arms Regulations (ITAR), which are administered by the US Department of State’s Office of Defense Trade Controls in the Bureau of Political-Military Affairs.89 Generally, these regulations are intended to limit the dissemination of security sensitive technology from private actors to non-US citizens. Under ITAR, any defence article, service or technical information regarding any article placed on the United States Munitions List (USML) requires an export licence prior to transfer to any non-US person.90 Private military contractors are thus restricted in their export of the ‘defense services’ relating to the broad set of items placed on the USML. The ‘defense services’ covered include: furnishing of assistance (including training) to foreign persons, whether in the US or abroad in the design, development, engineering manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarisation, destruction, processing or use of defense articles.91

In most circumstances, contractor firms wishing to engage in such ‘defence services’ must receive a licence from the DoS. The licensing process can prove especially burdensome for security firms as the regulations incorporate a ‘presumption of denial’ for the licensing of military services where a lethal outcome is considered likely.92 While the granting of licences for military contractors is often difficult to obtain, there is no formal oversight by US regulators following the issuance of the relevant licence, except where such licences are in excess of $14 million for non-NATO Member States or $50 million for NATO members.93 In such circumstances, the US Congress must be notified before the approval of the licence and retains an ongoing right to demand additional information during the performance of the contract.94 (ii) Operational Military Regulations of Contractors in Theatre US military regulations move the substantive restrictions on contracting from the abstract realm of ‘inherently governmental’ functions to the ‘on the ground’ issues that surround the regulation of contractors operating in a theatre of armed conflict. 88 Arms Export Control Act of 1968, Pub L No 90-629 82 Stat 1320 (codified at 22 USC, para 2751 (1968)). 89 ITAR 22 CFR, paras 120–30 (2010). 90 ibid, para 121. 91 ibid, para 120.9. 92 ibid, para 126.7. 93 ibid, para 123.15. 94 ibid, para 123.15.

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(a) Logistics/Security Status Under current regulations, contractors operating in ‘logistics support’ are authorised to engage in indirect participation (including managing communications, support, transporting supplies) in the theatre of armed conflict.95 Such personnel are authorised by a military commander to carry a weapon for individual self-defence, determined on a case-by-case basis.96 The carrying of such weapons must also be authorised under the contract between the government and the relevant PMC, as well as the employment agreement between the PMC and individual contractor.97 In contrast, armed contractor personnel are available to support US troops for security purposes when the purpose of the contract is clearly non-combative (and thus not considered an inherently governmental function).98 While security contractor functions have always been justified as contingent in nature (only using force when force has been used against them), the recently promulgated US CENTCOM Rules for the Use of Force specify that such personnel are only authorised to use deadly force in self-defence, defence of facilities, preventing life-threatening acts directed against civilians, or in defence of coalition-approved property.99 Additionally, PMCs contracted to act in a security context, where the use of force is contemplated, are allowed to carry arms only following explicit approval, and the application to carry arms must contain extensive information.100 (b) Command and Control When contractors accompany the military in theatre, they do not serve directly under the military commander charged with their region of operation. Rather, an Army Procurement Contracting Officer oversees the performance of the underlying government contract, as well as any amendments to the contract that may be necessary as the contractor’s work unfolds.101 As such, the command and control structure of con95 US Department of the Army, ‘Contractors Accompanying the Force’ AR 715-9 (1999), c 3-3(d). 96 DoD, ‘Contractor Personnel Authorised to Accompany the US Armed Forces’, Instruction 3020.41 (2005), paras 6.3.4.1–2 (DODI 3020.41). 97 ibid. 98 DODI 3020.41 (n 96) para 6.3.5.7040(c). 99 USCENTCOM, ‘Modification to USCENTCOM Civilian and Contractor Arming Policy and Delegation of Authority for Iraq and Afghanistan’ (2009) , s 2(C)(2). 100 See 2007 Operational Law Handbook, Judge Advocate General, c 7; see also DODI 3020.41 (n 96) paras 6.3.4, 6.3.4.1 and 6.3.4.2; DODI 3020.50 (2009). 101 AR 715-9, above n 95, c 3-2, paras e and f; US Department of Army, ‘Contractors on the Battlefield’, Field Manual 3-100.21 (2003) , c 4 (FM 3-100.21); see also Special Inspector General for Iraq Reconstruction, Memorandum for Commander, US Army Material Command Deputy Asst Secretary of the Army for Policy and Procurement,

The United States 349 tractors is fundamentally different from that of the regular military.102 Basic questions of command and control are not resolved ad hoc by the commander in theatre but through the terms and conditions of the contract under which each PMC or contractor is operating.103 Thus, only the contracting officer communicates the military’s requirements and prioritises PMC or contractor responsibilities.104 However, contractors operating in theatre are required to adhere to all guidance and obey all instructions and general orders that are issued by the theatre commander relating to force protection, security, health, safety and relations and interaction with local nationals.105 Contractors are also required to comply with US, host country and local laws, treaties and international agreements, and all applicable Uniform Code of Military Justice provisions.106 Moreover, they are required to adhere to all guidance and obey all instructions and general orders issued by the combatant commander.107 Failure to obey lawful orders of the theatre commander may result in both individual and company contractor removal from the theatre.108 Short of removal, commanders can affect individual contractor’s status through revocation of clearances and restricting contractors from installations or facilities under their control.109 (c) Contractor Reporting Requirements in Theatre As referenced above, SPOT is the system used for the statutorily required contract and personnel information. Although the law only requires each agency to track aggregate data on contracts and contractor personnel, the DoD configured SPOT in a manner that requires users to manually enter detailed information for each person working in Iraq or Afghanistan.110 With the purpose of informing combatant commanders in the theatre, DoD instructions require that the database contain by-name accountability of all contractors deployed with forces and ‘minimum contract information’, including a summary of services or capability to Defence Contract and Audit Agency (23 November 2004) (audit prepared by the Inspector General’s office regarding procurement practice in Iraq). 102 See generally AR 700-137, above n 55; AR 715-9, above n 95, c 4; FM 3-100.21, above n 101, c 4. 103 See AR 715-9, above n 95, c 2; FM 3-100.21, above n 101, c 2. 104 See generally, AR 715-9, above n 95; FM 3-100.21, above n 101. 105 See DoD, Defence Federal Acquisition Regulation Supplement (DFARS), para 252.2257040, ‘Contractor Personnel Authorised to Accompany US Armed Forces Deployed Outside the United States’, para (d) (2009); US Department of the Army Army Federal Acquisition Regulation Supplement (AFARS), para 5152.225-74-9000(a)(3) (2001). 106 ibid; FM 3-100.21, above n 101, c 4. 107 ibid. 108 ibid. 109 See AR 715-9, above n 95, c 4. 110 See 2010 GAO Hearing, above n 76, 2–3.

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be provided under the contract, and sponsoring military unit contact information.111 Further, DoD instructions require that SPOT be used and maintained throughout all levels of command where contractors may support contingency operations or other military operations.112

I V. C R I MI NA L LIABILITY FOR C ON TRAC TORS

The US government has yet to demonstrate a functional and comprehensive capability to hold either private military firms or individual contractors criminally liable for unlawful acts perpetrated abroad. Contractor immunity provisions that had previously been implemented in both Iraq and Afghanistan highlighted the need for more expansive and developed statutory regimes that enable federal or military prosecution of contractors. Yet, even with the closing of this immunity gap and the great potential for prosecution under federal and military statues, a comprehensive, reliable and uniform mechanism for holding contractors accountable remains elusive.

A. Contractor Immunity Provisions Previously, contractors operating in both Iraq and Afghanistan had been granted immunity under local laws for actions in the scope of their employment relative to their contract with the US. These immunity provisions caused substantial criticism by the public and academic commentators, and engendered debate within the domestic political environment of each of the three nations. The contours of each immunity grant also created confusion as to what acts were covered and, as a result, put into question where the ultimate responsibility for prosecution rested. (i) Iraq

(a) CPA 17 In the conflict with Iraq, contractor immunity was initially established in June 2003 by Coalition Provisional Authority Order No 17 (CPA 17).113 111

DODI 3020.41, above n 96, para 6.2.6. ibid. See ‘Coalition Provisional Order 17 (Revised): Status of the Coalition Provisional Authority, MNF—Iraq, Certain Missions and Personnel in Iraq’ (Coalition Provisional Authority, Baghdad, 17 June 2004) (CPA 17). 112 113

The United States 351 CPA 17 provided a general grant of immunity to contractors, stating that ‘contractors shall be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract or any subcontract thereto’, and then outlined the basic parameters in which such immunity would not attach.114 This broad immunity grant was circumscribed by the limitation that immunity was not afforded to contractors for acts which were not performed ‘pursuant to the terms and conditions’ of the contract under which the contractor was acting.115 US case precedent indicates that there is a presumption that contractual provisions should not be read to authorise criminal acts, particularly those of a violent nature, by a contracting party. As such, the ‘pursuant to the terms and conditions’ provision of CPA 17 may in fact have excluded immunity from prosecution of violent crimes by contractor personnel. CPA 17 also established that immunity protections were not individually granted and ‘may be waived’ by the US, thus opening the possibility of a local trial for contractors accused of unlawful activity.116 On 31 December 2008, CPA 17 expired in conjunction with the expiration of the United Nations security mandate established under Security Council Resolution 1511 and was replaced by a new agreement negotiated between the US and Iraq.117 (b) The Withdrawal Agreement On 27 November 2008, the Iraqi parliament ratified a new agreement with the US, (commonly referred to as the ‘Withdrawal Agreement’) that calls for the withdrawal of US troops over a three-year period and largely revokes blanket immunity for military contractors previously provided by CPA 17.118 After much negotiation, the resulting agreement retained immunity for US troops only for acts performed while on duty; it became effective on 1 January 2009. Article 12 of the Withdrawal Agreement states, ‘Iraq shall have primary right to exercise jurisdiction over United States contractors and United States contractor employees’, which are defined as non-Iraqi persons or legal entities, and their employees, who are citizens of the US or a third country and who are in Iraq to supply goods, services,

114

ibid, para 4. ibid. 116 ibid, para 5. 117 See G Bruno, ‘US Security Agreements and Iraq’, Washington Post, 18 November 2008. 118 Agreement on the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq, US–Iraq Arts 12 and 30, 1, 17 November 2008. 115

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and security in Iraq to or on behalf of the US Forces under a contract or subcontract with or for the United States Forces.119

Persons and legal entities normally residing in Iraqi territory are excluded. Iraq is under no obligation to inform US officials if a contractor has been arrested. Presumably, the US could continue to exercise jurisdiction over US contractors in cases where US courts possess jurisdiction. However, the Agreement does not authorise the US to arrest or detain a contractor without a warrant issued by an Iraqi court, unless such persons are caught in the act of committing a serious crime or if the arrest takes place on base.120 However, such arrests must be reported and the detained contractor turned over to Iraqi authorities within 24 hours.121 In January 2011, an Iraqi court began the first trial of a contractor under the Withdrawal Agreement, charging a British security contractor with the murder of two colleagues during an argument in the Green Zone.122 (ii) Afghanistan There is no direct corollary to CPA 17 that specifically provides contractor immunity in Afghanistan. The US is simultaneously participating in two military operations in Afghanistan, which have separate mandates and different status of forces arrangements. Operation Enduring Freedom (OEF) refers to the US-led coalition that initiated military action in Afghanistan in 2001, while the International Security Assistance Force (ISAF) is a NATO-led coalition deployed to Afghanistan under a United Nations mandate after the fall of the Taliban government in December 2001.123 With respect to contractors supporting the OEF mission, the operative document outlining the relationship between the US and Afghanistan does not differentiate the jurisdictional question of contractors and regular military forces.124 Instead, the agreement asserts the establishment of an accord ‘regarding issues related to United States military and 119

ibid, Arts 2 and 12. ibid, Arts 6 and 22. 121 ibid, Art 22. 122 ‘Iraq Trial Verdict Due for British Contractor Charged with Murdering Two Green Zone Colleagues’, Future New—Media Planner, 16 February 2011. 123 In both cases, the agreements were signed with the transitional or interim government, which has since been replaced by the fully elected government of the Islamic Republic of Afghanistan. Neither agreement has been directly affected by the change in government. 124 See Agreement Regarding the Status of United States Military and Civilian Personnel of the US Department of Defence Present in Afghanistan in Connection with Cooperative Efforts in Response to Terrorism, Humanitarian and Civic Assistance, Military Training and Exercises, and other Activities, US–Afghanistan, 28 May 2003. 120

The United States 353 civilian personnel of the Department of Defence’.125 Such personnel are to be accorded ‘a status equivalent to that accorded to the administrative and technical staff’ of the US Embassy under the Vienna Convention on Diplomatic Relations of 1961.126 Accordingly, covered US personnel are immune from criminal prosecution by Afghan authorities. In this regard, however, contractors may not be specifically provided immunity as, at least under most US government guidelines and regulations, ‘civilian personnel’ and ‘government employees’ are distinguished from ‘contractor personnel’.127 On the other hand, the agreement includes the Afghan government’s agreement that ‘personnel may not be surrendered to, or otherwise transferred to, the custody of an international tribunal or any other entity or state without the express consent of the Government of the United States’.128 Moreover, it encourages the exercise of US jurisdiction over its own personnel, from which contractors are not specifically excluded. However, it also does not prohibit Afghanistan from exercising jurisdiction over contractor personnel. In 2009, Afghanistan charged and convicted an Australian security contractor, Robert Langdon, working for the US-based firm Four Horsemen International, for killing an Afghan contractor during an altercation. Mr Langdon is currently incarcerated in Pol-e-Charkhi prison, where he awaits execution by hanging.129 The operative document for the ISAF mission is the Military Technical Agreement between ISAF and the Afghan Interim Authority. This agreement explicitly provides that all ISAF and supporting personnel are subject to the exclusive jurisdiction of their own governments.130 However, there are no clear data on what portion, if any, of US personnel involved in supporting the ISAF mission includes contractors. In Afghanistan, the concern and debate over immunity provided to private security companies and individual security contractors may be a moot issue in the near future. On 17 August 2010, President Hamid Karzai issued a decree calling for a phase-out and banishment of all private security companies in Afghanistan.131 The decree aims ‘to better 125

ibid. ibid. 127 A DoD ‘civilian’ is defined as ‘A Federal civilian employee of the Department of Defence directly hired and paid from appropriated or non-appropriated funds, under permanent or temporary appointment. Specifically excluded are contractors and foreign host nationals as well as third country civilians.’ DoD, ‘Dictionary of Military and Associated Terms’, Joint Publication 1-02 (2010) 103. See, eg 28 USC § 2671 (2000) (employee of the government does not include any contractor with the US). 128 ibid. 129 ‘Aussie Faces Jail Ordeal’, Townsville Bulletin, 7 January 2011, 4. 130 The Military Technical Agreement is available at http://www.operations.mod.uk/ isafmta.pdf. 131 L Hasan, ‘President Karzai Orders Foreign Security Out’, abcNEWS, 17 August 2010, available at http://abcnews.go.com/International/president-karzai-orders-foreign-security-afghanistan/story?id=11418609 (accessed on 11 April 2011). 126

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provide security for the lives and property of citizens, fight corruption, prevent irregularities and the misuse of arms, military uniforms and equipment by private security companies’.132 Informally, there were also increasing concerns that the private security companies were becoming uncontrollable private militias and that the decree would facilitate the complete handover of security to Afghan government control. The sole exception to the order allows private guards to continue to operate within compounds of embassies, consulates, nongovernmental organisations and economic organisations.133 Shortly before the decree was to take effect, President Karzai lengthened the timeline for effectuation of the degree, asserting that its premature implementation would threaten multiple construction and development programmes that require private security to operate.134

B. Prosecution in Federal Court To the extent that immunity has shielded contractors from prosecution in Iraq and Afghanistan, two other forums have served as focal points for the exercise of US jurisdiction over contractor crimes—US federal civilian court and military courts martial. The question of the reach and role of civilian and military courts has led to great confusion between the civilian government and military service. Further, jurisdictional holes in both systems, exposed over the course of both of the conflicts in Iraq and Afghanistan, have led to legal reform through legislation. As a general rule, US courts do not possess jurisdiction over acts occurring beyond national borders absent an explicit statutory provision to the contrary. (i) Special Maritime Territorial Jurisdiction Federal statutes grant US civilian courts ‘special maritime and territorial jurisdiction’ (SMTJ), which extends jurisdiction over crimes where no other government is able to effectively safeguard American interests.135 Originally, the SMTJ regime was limited to areas of ‘special jurisdiction’, such as the high seas and certain land utilised by the US as military bases and embassies. The US PATRIOT Act expanded SMTJ jurisdiction to explicitly include 132 S Ahmad, ‘Karzai Formally Orders Security Firms to Disband’, Defence News, 17 August 2010. 133 A Rubin, ‘Karzai Orders Guard Firms to Disband’, New York Times, 17 August 2010. 134 See J Parlow and R Chandrasekaran, ‘Security Firms are Accused of Breaking Afghan Laws’, Washington Post, 23 January 2011. 135 See 18 USC, para 7 (2001).

The United States 355 military bases located abroad ‘with respect to offences committed by or against a national of the United States’.136 The Act also expanded jurisdiction over any place used by entities of the US government, including property owned by other states but used for governmental purposes by the US.137 In 2007, a CIA contractor was convicted of assault of a detainee in Afghanistan by way of SMTJ.138 He appealed his conviction based in part on the assertion that the temporary base in Afghanistan did not constitute a ‘premises’ of a ‘military mission’ within the meaning of the statute. However, the Fourth Circuit disagreed and upheld the conviction.139 (ii) Military Extraterritorial Jurisdiction Act The MEJA, giving the Federal Court jurisdiction over civilians overseas who commit criminal offences where domestic prosecution in that foreign nation is infeasible, was initially passed in 2000.140 It provides for the punishment of conduct that would be punishable by imprisonment for more than one year (a felony offence) if committed within the SMTJ jurisdiction of the US. MEJA also provides jurisdiction to cover former members of the service whose crimes are not discovered until their separation from service.141 In 2004, Congress amended MEJA to cover contractors working for agencies other than the Department of Defence. The amended MEJA provides jurisdiction for individuals ‘employed by or accompanying the Armed Forces outside the United States’, which encompasses civilian employees, contractors and subcontractors (at any tier) (and their respective employees) of the Department of Defence, together with 136 ibid; 8 USC para 1101(22) (2010) defines a US national as a citizen of the US or a person who, though not a citizen of the US, owes permanent allegiance to the US. US service members who are foreign nationals are generally considered US nationals, but foreign nationals employed by the US government abroad are not. Thus, the Act would exclude foreign contractors working for US PMCs. 137 18 USC, para 7(9). Specifically, the Act reaches the premises of US diplomatic, consular, military or other US government missions or entities in foreign states, including buildings, parts of buildings, residences, etc used for US missions, regardless of ownership. 138 US Attorney for the Eastern District of North Carolina, Department of Justice, ‘David Passaro Sentenced to 100 Months Imprisonment: First American Civilian Convicted of Detainee Abuse During the Wars in Iraq and Afghanistan’, News Release (13 February 2007). 139 United States v Passaro 577 F3d 207 214 (4th Cir 2009) (looking at factors such as size, length of US control, improvements, use and occupation by US personnel to determine whether a temporary location is a premises of a ‘military mission’). 140 Military Extraterritorial Jurisdiction Act (MEJA) of 2000, Pub L No 106-523 114 Stat 2488 (codified at 18 USC, paras 3261–67 (2000)) as amended by the Ronald W Reagan National Defense Authorization Act for FY 2005, Pub L No 108-375 & 1088 118 Stat 2066 (2004). 141 ibid.

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‘other Federal agencies’ and ‘any provisional authority’.142 However, in the case of employees and contractors of ‘other Federal agencies’ and ‘any provisional authority’, the law limits jurisdictional coverage only ‘to the extent such employment relates to supporting the mission of the Department of Defence’.143 MEJA does not create jurisdiction over individuals employed by or accompanying the military that are citizens of the state in which they are operating (who are presumably subject to domestic prosecution).144 In 2005, the DoD issued implementing regulations, under which the DoD’s Inspector General has the responsibility to inform the Attorney General when he or she has reasonable suspicion that a federal crime has been committed, and is further responsible for implementing investigative policies to make MEJA effective.145 MEJA, as it was originally enacted and in its current form, has primarily been criticised because it only extended to DoD employees and contractors because it was not accompanied by providing sufficient resources for Department of Justice (DoJ) officials to engage in a meaningful investigation of acts occurring overseas and thus far from their traditional realm of power. While the MEJA amendment substantially addressed the first criticism by including contractors acting for any agency supporting the mission of the DoD abroad, jurisdictional gaps remain. As currently constructed, the statute may not necessarily cover a significant portion of contractors who engage in personal security of employees (or companies) unassociated with the Department of Defence (eg State Department or private reconstruction firms). (a) Blackwater146 and the Nisoor Square Incident A tragedy in Iraq’s Nisoor Square incited policy makers and the public to re-examine military contractor regulation more closely. On 16 September 2007, employees and subcontractors of the American Blackwater Company working under a contract with the Department of State were assigned to a convoy of heavily armored trucks. The Blackwater personnel became involved in a firefight in the public square, during which 17 people 142 18 USC, paras 3261–67. Those ‘accompanying’ the military include military and civilian personnel dependents. 18 USC, para 3267. 143 ibid, para 3267. 144 ibid. 145 See DoD, ‘Criminal Jurisdiction over Civilians Employed by or Accompanying the Armed Forces Outside the United States, Certain Service Members, and Former Service Members’, Instruction 5525.11 (2005), para 5.3.1; ‘Criminal Jurisdiction over Civilians Employed by or Accompanying the Armed Forces Outside the United States Service Members and Former Service Members’, 71 FR 8946 (2006), para 153.4(b)(1) and (2). 146 In February 2009, the Blackwater company changed its name in February to Xe Services. This chapter, however, will continue to use the well-known ‘Blackwater’ name.

The United States 357 were killed and over 24 injured, most of whom were allegedly unarmed civilians, including women and children. On 4 December 2008, five former Blackwater personnel were indicted under MEJA for the incident. The charges included voluntary manslaughter, attempt to commit manslaughter, using and discharging a firearm during and in relation to a crime of violence, and aiding and abetting the manslaughter. On 13 January 2009, the defendants filed a motion to dismiss all counts for lack of jurisdiction under MEJA, claiming that the federal court had no jurisdiction to try them because MEJA only covers contractors whose employment ‘relates to supporting’ the Department of Defence and their contract was with the Department of State, which was not acting in such a supporting role.147 The trial court refused to dismiss the charges without reaching the merits of the defendants’ arguments, but later dismissed the case due to finding that the prosecution’s case was based on compelled statements entitled to immunity under the Fifth Amendment.148 The dismissal sparked outrage in Iraq and the international community, prompting an official US response.149 On appeal, the DC Circuit vacated the dismissal order and remanded the case back to the district court, finding that the court had not properly considered whether each piece of evidence as to each individual defendant was procured from tainted sources and that the court had based its decision to dismiss on an erroneous view of the law.150

* * *

Despite the uncertainty of the Blackwater prosecution, there have been some successful prosecutions involving DoD contractors in Iraq and Afghanistan under MEJA, such as convictions for child pornography, sexual harassment, assault and attempted murder.151 In a well-known 147 See, eg Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss for Lack of Jurisdiction United States of America v Slough et al 677 FSupp2d 112 (DDC 2009) (No 1:08:cr-360) 2009 WL 192243. 148 See, eg Slough, ibid, No 1:08-cr-00360-RMU slip op at 114 (DDC 2009 Dec 31 2009); see also D Q Weber, ‘Judge Refuses to Dismiss Charges against Blackwater Guards’, Washington Post, 18 February 2009, 5. 149 E Londono, ‘Justice Department to Appeal Dismissal of Blackwater, Biden Says’, Washington Post, 24 January 2010, 14. 150 See United States v Slough, above n 147, No 10-006 2011 WL 1516148 (DC Cir Apr 22 2011). 151 See United States v Maldonado 215 Fed Appx 938 2007 WL 276624 (11th Cir Jan 31 2007); US Attorney for the District of Arizona, US Department of Justice, ‘Military Man Charged with Assaulting Woman on US Military Base in Iraq’, News Release (1 March 2007); US Department of Justice, US Attorney’s Office for the Eastern District of Virginia, ‘Military Contractor Sentenced for Possessing Child Pornography in Baghdad’, News Release (27

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case, a former soldier was convicted for the rape and murder of an Iraqi girl and the murder of her family while on active duty in Iraq.152 The defendant had challenged the court’s jurisdiction under MEJA on the basis that he was never properly discharged from the military and should instead have been subject to a court martial, but the court refused to dismiss the case.153 Further, the DoJ has indicated to Congress that numerous individuals have been indicted under MEJA, with several investigations currently underway.154 For example, three contractors employed by Special Operations Consulting Security Management Group, Inc, a DoD PMC, were indicted under MEJA for kidnapping a foreign national at gunpoint while working in Iraq.155 In Afghanistan, two contractors working for Paravant LLC, a subsidiary of Blackwater, were charged under MEJA with second-degree murder, attempted murder and firearms offences for a shooting incident that resulted in the deaths of two Afghan nationals and injury to a third.156 In January 2011, a grand jury in Virginia indicted a contractor working in Afghanistan with two serious charges of assault for a stabbing incident that occurred at the US airbase in Kandahar.157 (iii) War Crimes Act Contractors could also be charged under the United States War Crimes Act, which implements US obligations under the Geneva Conventions. The Act criminalises unlawful killing and other violent crimes.158 However, it only applies to these types of crimes when committed by

May 2007); US Attorney’s Office for the Western District of Texas, US Department of Justice, ‘Former Military Contractor from Andrews, Texas Pleads Guilty to Possessing Child Pornography While in Afghanistan’, News Release (20 January 2009); US Attorney for the Eastern District of Virginia, US Department of Justice, ‘Civilian Contractor Pleads Guilty to Voluntary Manslaughter of Afghan Detainee’, News Release (3 February 2009). 152 US Department of Justice, ‘Department of Justice, Former Ft Campbell Soldier Sentenced to Life in Prison After Conviction on Charges Related to Deaths of Iraqi Civilians’, News Release (4 September 2009) 153 See United States v Green, No 5:06CR-19-R 2008 WL 4000873 (WD KY Aug 26 2008). The case is on appeal. 154 ‘Closing Legal Loopholes: Prosecuting Sexual Assaults and Other Violent Crimes Committed Overseas by American Civilians in a Combat Environment’, statement by Sigal P Mandelker Deputy Assistant Attorney General, Criminal Division DOJ, at the hearing before the Senate Committee on Foreign Relations. 110th Cong (2008). 155 US Attorney’s Office for the Western District of Louisiana, US Department of Justice, ‘Military Contractors Indicted by Federal Grand Jury’, News Release (15 December 2008). 156 Federal Bureau of Investigation, US Department of Justice, ‘Two Individuals Charged with Murder and Other Offenses Related to Shooting Death of Two Afghan Nationals in Kabul, Afghanistan’, News Release (7 January 2010). 157 US Department of Justice, ‘US Army Contractor Charged with Assault in Relation to Stabbing at Kandahar Airfield in Afghanistan’, News Release (5 January 2011). 158 18 USC, para 2441 (2006).

The United States 359 or against US nationals or US service members.159 Therefore, foreign contractors who commit war crimes in connection with US operations overseas, even if employed by the US government or a US PMC, are not amenable to prosecution under the Act. Thus far, the War Crimes Act has not been used to prosecute any military contractors who are US nationals.

C. Prosecution in Military Court—Uniform Code of Military Justice The UCMJ represents the statutory regime under which US service members are charged and tried for crimes. It is not typically used to prosecute civilians, and civilians performing traditionally military oriented tasks have not been excepted from this general rule. The jurisdictional conundrums referenced above, however, have prompted a recent amendment to US law creating UCMJ jurisdiction over contractor conduct. (i) Constitutional Limitations on Military Jurisdiction When MEJA was proposed, it was originally accompanied by legislative language that would have extended UCMJ jurisdiction over civilians engaged in contingency operations. Concerns regarding the constitutionality of exposing civilian contractors to military process proved fatal to its adoption. The constitutional norm eschewing military process for crimes committed by civilians is widely accepted, but doctrinally controversial and uncertain. Current US court precedent seems to favour the argument that exposing civilians to court-martial proceedings may intrinsically violate a civilian defendant’s constitutional rights, specifically those of the Fifth and Sixth Amendments of the US Constitution, guaranteeing due process and the right to a jury trial respectively. The cornerstone of the presumption against applying military jurisdiction over civilians was set out by the Supreme Court in Reid v Covert.160 This precedent has been reinforced in other cases, including Solorio v United States, which held that UCMJ jurisdiction was limited to individuals possessing an official military status.161 The rule underlying such a presumption is that the military composition of a court-martial jury and the less demanding procedural rules

159 160 161

ibid. Reid v Covert 354 US 1 39–41 [1957]. Solorio v United States 483 US 435 450–51 [1987].

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for such trials would compromise a fair trial of a US civilian.162 Procedurally, a US court martial requires only a majority vote to convict rather than the unanimous verdict generally considered necessary in US civilian court. Culturally, the make-up and practices of a UCMJ trial were designed to ensure justice in the hierarchical and particularities of military life, an aspect to which it is generally considered inappropriate to expose civilians.163 The facts in Reid are starkly different from those presented by scenarios involving private military contractors. The civilian convicted in Reid was the wife of a serviceman accused of murdering her husband abroad. In contrast, defence contractor employment is typically an extension of military service overseas. Unlike in Reid, contractors are often engaged in the same variety of military acts and responsibilities that are undertaken by regular soldiers. (ii) The Expansion of UCMJ Jurisdiction to Cover Contractors The National Defense Authorization Act for Fiscal Year 2007 expanded UCMJ jurisdiction to cover civilians ‘accompanying an armed force in the field’ in the context of ‘contingency operations’, moving away from the requirement of declared war previously enshrined in the statutory regime.164 This expansion has not been challenged yet, and thus has not yet proved its constitutional mettle. In addition to getting past the constitutional hurdles, the statutory requirements still present uncertainties in the prosecution of a contractor under the UCMJ. First, ‘serving with or accompanying’ the armed forces has been interpreted as requiring that the civilian’s presence be not merely incidental to, but ‘directly connected with or dependent upon, the activities of the armed forces or their personnel’.165 Moreover, courts have found that military jurisdiction over a civilian ‘cannot be claimed merely on the basis of convenience, necessity, or the non-availability of civil courts’.166 Secondly, ‘in the field’ means serving in an area of ‘actual fighting’ at or near the ‘battlefront’ where ‘actual hostilities are under

162 See Reid, above n 160, 3 (plurality opinion) (noting that the case involved ‘the power of Congress’ ‘to expose civilians to trial by military tribunals, under military regulations and procedures, for offences against the US thereby depriving them of trial in civilian courts, under civilian laws and procedures and with all the safeguards of the Bill of Rights’). 163 See, eg Toth v Quarles 350 US 11 22 [1955] (noting ‘there are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution’). 164 John Warner National Defense Authorization Act for Fiscal Year 2007, Pub L No 109-364 120 Stat 2083 (2006). 165 United States v Barney 21 CMR 98 110 [1956]. 166 In re di Bartolo 50 FSupp 929 930 (SDNY 1943).

The United States 361 way’.167 Thus, contractors are not amenable to prosecution under the UCMJ merely on account of their employment in Iraq or Afghanistan: there must be sufficient connection to military operations ongoing there. This also leaves open the question of whether contractors working under a DoD contract but operating in not-so-traditional battlefields, such as those in the ‘global war on terrorism’, would be subject to jurisdiction under the UCMJ. On 10 March 2008, implementing regulations of the expanded UCMJ jurisdiction over civilians were promulgated by the Secretary of Defence, thus providing insight into how the new jurisdictional grant will be executed in practice.168 The new regulations provide military commanders with the authority to ‘respond to an incident, restore safety and order, investigate, apprehend suspected offenders’ in circumstances where a criminal act falling under the expanded UCMJ jurisdiction is suspected.169 Additionally, the regulations require military officers to ‘notify responsible Department of Justice authorities, and afford DoJ the opportunity to pursue its prosecution of the case in federal district court’.170 This coordination process is not intended to delay justice as, during the DoJ notification process, ‘commanders and military criminal investigators should continue to address the alleged crime’.171 Perhaps as a nod to the constitutional concerns enshrined in Reid and its progeny, the regulations indicate that ‘[b]ecause of the unique nature of [UCMJ] jurisdiction over civilians be based on military necessity to support an effective fighting force and be called for by circumstances that meet the interests of justice’.172 These circumstances include, ‘when US federal criminal jurisdiction does not apply or federal prosecution is not pursued, and/or when the person’s conduct is adverse to a significant military interest of the United States’.173 This dual consideration is double edged. On the one hand, it indicates a limitation on military discretion, but on the other hand, it exposes a civilian to duelling prosecutorial interests that are not typically present for the civilian criminal defendant in the civil system. Regarding whether the UCMJ has been used successfully to hold 167

Reid, above n 160, 35. ‘Memorandum for Secretaries of the Military Departments Chairman of the Joint Chiefs of Staff Under Secretaries of Defence Commanders of the Combatant Commands Subject: UCMJ Jurisdiction Over DoD Civilian Employees, DoD Contractor Personnel, and Other Persons Serving With or Accompanying the Armed Forces Overseas During Declared War and in Contingency Operations’, Secretary of Defence, US Department of Defence (10 March 2008). 169 ibid 1. 170 ibid 2. 171 ibid. 172 ibid, Attachment 3. 173 ibid. 168

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contractors accountable, there is one reported use of the amended UCMJ to cover a contractor: an interpreter with dual Canadian–Iraqi citizenship pleaded guilty in connection with the stabbing of another contractor.174 Additionally, several contractors have been detained for possible UCMJ charges that have never been referred for trial.175

V. C I V I L LIABILITY FOR C ON TRAC TORS

Civil liability provides another avenue for holding PMCs and their respective personnel accountable for their conduct overseas. This section addresses the potential civil law claims for monetary compensation that can be brought against these entities, followed by a discussion of the potential defences that can be raised in response to such claims. While there are a multitude of lawsuits involving PMCs, this section covers only cases in which the claims arise out of the conduct, action or inaction of PMCs and their personnel that occurred in areas of armed conflict or overseas in circumstances involving US military operations. Accordingly, in these lawsuits, plaintiffs are third-party bystanders, members of the military, PMC personnel and the respective survivors of these three entities. There have been many more civil cases brought by military and PMC personnel than have been brought by individuals with no affiliation to the relevant PMC or the military. Thus, there are few cases and fewer court decisions involving the type of individuals widely envisioned to be the ‘victim’ of private security contractor misconduct, such as an Iraqi civilian who is an innocent bystander. However, some of the claims overlap, and the defences raised are the same across all categories. Furthermore, any lawsuit against PMCs and their personnel for monetary damages, regardless of the status of the plaintiff, serves to regulate their behaviour directly and/or indirectly.

A. Claims There are primarily three categories of civil lawsuits involving PMCs and their personnel’s allegedly wrongful conduct, occurring overseas 174 In June 2008, Alaa Mohammad Ali, a Canadian–Iraqi translator, became the first contractor convicted through a UCMJ prosecution. See ‘First Contractor Convicted under US Military Law in Iraq’, Washington Post, 24 June 2008; Multi-National Corps— Iraq, Public Affairs Office, ‘Civilian Contractor Convicted at a Court-martial (Baghdad)’, Release No 20080623-01 (23 June 2008), available at http://www.mnf-iraq.com/index. php?option=com_content&task=view&id=20671&Itemid=128 (accessed on 11 April 2011). 175 See M Navarre, ‘Army Court to Review First and Only Civilian Court-Martial under Amended Art 2(a)(10), UCMJ’, CAAFLOG, 30 March 2011, available at http://www.caaflog. com/category/art-2a10/ (accessed on 11 April 2011).

The United States 363 and involving armed conflict: (i) suits brought by third-party civilians or their survivors against the PMC and/or its personnel; (ii) suits brought by members of the military or their survivors against the PMC and/ or its personnel; and (iii) suits brought by the PMC employees or their survivors against the PMC. Only the first category of plaintiff has raised an Alien Tort Statute (ATS) claim due to restrictions on who possesses standing for such a claim. In contrast, all three categories have raised common law or state law claims based in tort. In recent litigation, some plaintiffs have also raised claims under the Torture Victim Protection Act (TVPA). (i) Alien Tort Statute The ATS has been used by non-US citizens (or their families) who have been injured or killed by the conduct of PMC personnel. It is a federal statute which provides: ‘[T]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’.176 In essence, the ATS is used by non-US citizens to obtain monetary compensation for torts based on violations of international law. It has only been widely used since 1980, after the US Court of Appeals for the Second Circuit ruled that a non-US citizen could sue another non-US citizen in US courts for torts that had occurred outside of the US.177 In 2004, the Supreme Court, in Sosa v Alvarez-Machain, addressed the ATS for the first time, holding that the ATS, though merely jurisdictional in nature, provides a limited cause of action for non-US citizens to bring claims asserting international law violations that are ‘specific, universal, and obligatory’.178 The Court found that ATS claims based on the present-day law of nations should ‘rest on a norm of international character accepted by the civilised world and defined with a specificity comparable to the features of the 18th-century paradigms’ such as ‘violation of safe conducts, infringement of the rights of ambassadors, and piracy’.179 The Court found that the prohibition of arbitrary detention did not rise to the level of specificity, universality or obligation required, perhaps signalling a fairly strict standard for what could be construed as a violation of the law of nations.180 Though not relevant to the case before it, the Court observed that prohibitions on torture and

176 177 178 179 180

28 USC, para 1350 (1948). Filartiga v Pena-Irala 630 F2d 876 890 (2d Cir 1980). Sosa v Alvarez-Machain 542 US 692 749 (2004). ibid, 723–27. ibid, 737–39.

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extrajudicial killing do meet such a standard and were of the type of claims that could be brought under the ATS.181 Lower courts continue to grapple with the question of which types of torts fall within the ambit of an international norm violation, using the ‘specific, universal and obligatory’ test as a guideline.182 Of particular concern to law suits targeting PMC defendants is whether an ATS suit can lie against a private actor (an individual or a corporation) or the defendant must be a public actor (a government official or agent) at the time of the alleged tort. This is another area of differing opinions between the lower courts, while the Supreme Court has not yet addressed the question.183 It is no surprise, then, that plaintiffs who are Iraqi nationals, such as in Saleh/Ibrahim, Blackwater/In re Xe, Al-Quraishi, Al Shimari and Manook, brought claims under the ATS against the PMCs and their personnel for torture, extrajudicial killing, war crimes, crimes against humanity and other international law violations. The Saleh and Ibrahim cases (now consolidated) (Saleh II) were brought by a number of Iraqi nationals, who had been detained and tortured in the Abu Ghraib prison in Iraq, against private civilian companies (Titan and CACI) that had provided linguists/translators and interrogators under contracts with the DoD. In these cases, plaintiffs accused Titan and CACI contractors of beating them, depriving them of food and water, subjecting them to long periods of excessive noise and forced nudity for prolonged periods, engaging in mocked executions, threatening to attack them with dogs, exposing them to cold, urinating on them, depriving them of sleep, making them listen to loud music, photographing them while naked, forcing them to witness the abuse of 181

ibid, 727–28, 732–34, 762–63. See, eg Bigio v Coca-Cola, Co 239 F3d 440 448 (2d Cir 2000) (finding war crimes and genocide of universal concern); Vietnam Ass’n for Victims of Agent Orange v Dow Chem Co 517 F3d 104 117–23 (2d Cir 2008) (finding there was a lack of consensus in the international community as to whether the use of herbicide that harms humans is banned poison); Mora v New York, 524 F3d 183 208 (2d Cir 2008) (arbitrary detention not specific enough to qualify as a violation of customary international law). 183 See Sosa, above n 178, 733 fn 20; see, eg Kadic v Karadzic 70 F3d 232 239 (2d Cir 1995) (‘Certain conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals’); Arias v Dyncorp 517 FSupp2d 221 227 (DDC 2007) (‘It is clear that the ATCA may be used against corporations acting under ‘colour of state law,’ or for a handful of private acts, such as piracy and slave trading’); Romero v Drummond Co Inc 552 F3d 1303 1315 (11th Cir 2008) (concluding ATS grants jurisdiction against corporate defendants); In re XE Services Alien Tort Litigation 665 FSupp2d 569 588 (ED Va 2009) (‘Nothing in the ATS or Sosa may plausibly be read to distinguish between private individuals and corporations . . . . [T]here is no identifiable principle of civil liability which would distinguish between individual and corporate defendants in these circumstances’); cp Tel-Oren v Libyan Arab Republic 726 F2d 774 (DC Cir 1984) (finding that under DC Circuit law, the law of nations does not apply to private actors); Kiobel v Royal Dutch Petroleum Co 621 F3d 111 145 (2d Cir 2010) (dismissing ATS claims against private corporation). 182

The United States 365 other prisoners, including rape, sexual abuse, beatings, electrocution, withholding food, forbidding prayer, ridiculing them for their religious beliefs, and other abusive acts. On the basis of such facts, the plaintiffs alleged several violations of the law of nations under the ATS, including torture, summary execution, cruel, inhuman and degrading treatment, enforced disappearance, arbitrary detention, war crimes and crimes against humanity.184 The US District Court for the District of Columbia dismissed the ATS claims against both Titan and CACI, finding that the law of nations does not apply to private actors.185 The DC Circuit Court affirmed the dismissal of the ATS claims against Titan but had no jurisdiction over CACI as the plaintiffs did not appeal the dismissal of the ATS claims.186 The court concluded that ATS claims cannot be brought against private actors and, further, in light of the foreign policy issues, Sosa ‘judicial restraint’ would be particularly appropriate.187 The plaintiffs have filed a petition for a writ of certiorari with the Supreme Court.188 Perhaps in light of the law developing in the DC Federal Courts, a separate lawsuit, Al-Quraishi v Nakhla, was brought in the Federal District Court in Maryland by 72 Iraqi nationals against L-3, a corporate entity which had provided translators to the US military in Abu Ghraib prison and other US-run detention centres throughout Iraq. Bringing claims under the ATS, the plaintiffs alleged they had been beaten, hung by their hands and feet, given electrical shocks, threatened with death and rape, sexually abused, subject to forced nudity, stress positions, sleep and sensory deprivation, and confined in small spaces. Denying the defendants’ motion to dismiss, the court concluded that ATS claims for war crimes and cruel, inhuman and degrading treatment (CID) could be brought against private parties, which would include a corporation, that CID is cognisable under ATS, and that, even if CID requires action under ‘colour of law’, that does not entitle the actor to sovereign immunity.189 Plaintiffs in the original Atban v Blackwater case were Iraqi nationals 184 Plaintiffs also brought claims under the Racketeer Influenced and Corrupt Organizations (RICO) Act, but these claims were dismissed out of hand on the basis of plaintiffs’ lack of standing. 185 Ibrahim v Titan Co 391 FSupp2d 10 13–14 (DDC 2005) (Ibrahim I); Saleh v Titan Co 436 FSupp2d 55 57–58 (DDC 2006) (Saleh I); see also Al Shimari v CACI Premier Technology Inc 657 FSupp2d 700 (ED Va 2009) (four Iraqi citizens detained at Abu Ghraib brought separate lawsuit for similar acts committed by CACI interrogators). 186 Saleh I, above n 185 and Ibrahim I, above n 185, consolidated as Ibrahim v Titan Corp 556 FSupp2d 1 (DDC 2007) (Ibrahim II) aff’d Saleh v Titan 580 F3d 1 14–16 (DC Cir 2009) (Saleh II); see also Al Shimari, above n 185, 727–28 (dismissing ATS claims because such claims against government contractor-interrogators are too modern and novel to satisfy the Sosa requirements for ATS jurisdiction and declining to find that ATS jurisdiction reaches private actors). 187 ibid. 188 Petition for Writ of Certiorari Saleh II, above n 186 (No 09-1313). 189 Al-Quraishi v Nakhla 728 FSupp2d 702 741–60 (D Md 2010).

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(and their survivors) who were injured or killed when Blackwater contractors opened fire in Nisoor Square in Baghdad, Iraq, killing and injuring several bystanders. The plaintiffs brought several international law claims under the ATS, filing suit in the DC District Court. The case was later refilled in the Federal District Court for the Eastern District of Virginia and consolidated with other cases against Blackwater (now Xe Services), Erik Prince and several other entities affiliated with Blackwater, and restyled as In re XE Services Alien Tort Litigation. The plaintiffs alleged they or their relatives had been injured or killed by Blackwater contractors in the Nisoor Square incident or in other separate and unrelated incidents.190 The consolidated cases involved 64 plaintiffs, comprising 45 Iraqi nationals and the estates of 19 deceased Iraqi nationals. The defendants moved to dismiss the claims, arguing that the plaintiffs had failed to state a claim under the ATS, that the claims raised non-justiciable political questions, and that the common-law claims were barred by immunity under Iraqi law and absolute immunity. The court denied the motion to dismiss, concluding that war crimes are cognisable under the ATS and the claims did not raise a political question, and deferred deciding the immunity questions until the plaintiffs had re-pled their case.191 The case settled two months later in January 2010.192 In Estate of Manook v Research Triangle Institute International, plaintiffs were Iraqi nationals who brought a lawsuit against a private corporation under contract with the USAID, and its private security company—Unity Resources—which had been hired to provide protection to the company’s employees in Iraq. The plaintiffs alleged that Unity contractors shot and killed two Iraqi nationals in a vehicle. The DC District Court dismissed the ATS claims and transferred the remaining state-law tort claims to the Eastern District of North Carolina. In dismissing the ATS claims, the court concluded that the defendants were private actors and therefore not amenable to an ATS claim.193

190 Other incidents include alleged beatings and shootings of Iraqi citizens in seven separate incidents in Iraq and the death of an Iraqi citizen caused by firing into a crowd near Baghdad’s Al Watahba Square. 191 In re Xe Services, above n 183, 588–90. The court ultimately found that war crimes were cognisable under the ATS, but a claim of summary execution was not because no state action was involved or alleged. The court allowed the majority of the plaintiffs to amend their complaint to allege facts sufficient to state a claim under the ATS and dismissed other plaintiffs’ claims whose facts—even if repled—would not state a claim under the ATS. 192 See In re Xe Services, above n 183, 574 fn 2. 193 Manook v Research Triangle Institute International et al 693 F Supp2d 4 19 (DDC 2010) (Manook I); see also Manook v Research Triangle Institute International et al 2010 WL 3199874 *4–5 (EDNC Aug 12 2010) (Manook II).

The United States 367 (ii) Torture Victim Protection Act of 1991 The TVPA establishes a civil action against an ‘individual who, under actual or apparent authority, or colour of law, of any foreign nation’ subjects another to ‘torture’ or ‘extrajudicial killing’.194 On account of the requirement ‘colour of law of a foreign nation’, the statue has generally been used to sue foreign officials or private entities affiliated with or working for foreign governments.195 To date, only one PMC case, Estate of Manook v Research Triangle Institute International, has involved a claim raised under the TVPA. Given the outcome in the case—perfunctory dismissal and no appeal of the TVPA claim—it is unlikely the TVPA will serve as a successful mechanism for providing monetary compensation to victims of PMCs and their personnel. In Manook, the court determined, without even considering whether a foreign nation had to be implicated, that the defendants were private entities who were not acting under ‘colour of state law’ and therefore dismissed the TVPA claims.196 (iii) State Law Torts Typically, plaintiffs who have alleged torts in violation of international law under the ATS have also alleged torts in violation of domestic law based on the same conduct. Accordingly, plaintiffs in the Saleh II, Blackwater/In re Xe, Al-Quraishi, Al Shimari and Manook cases all brought claims alleging torts in violation of state law (often referred to as ‘state law tort claims’ or ‘common law tort claims’), including, but not limited to, assault and battery, wrongful death, wrongful imprisonment, conversion, intentional infliction of emotional distress, and negligence (including negligence, negligent infliction of emotional distress and negligent hiring, training and supervision).197 The state law tort claims have generally fared better in litigation than the ATS claims, as the type of claim and scope of who can be sued under state law tort theories are less restrictive. The two other categories of plaintiffs have relied primarily, if not exclusively, upon state law tort claims to sue PMCs and their personnel. Under this paradigm, members of the military and their survivors sue the PMC personnel for his own negligent acts and also sue the PMCs for negligent hiring, training and supervision of the personnel and for the negligent acts of the personnel under the respondeat superior doctrine, which essentially holds an employer liable for the employee’s torts if 194

Torture Victim Protection Act of 1991 28 USC, para 1350 note (2006). See, eg Wiwa v Royal Dutch Petroleum Co, 2002 WL 319887 (SDNY Feb 28 2002). Manook I, above n 193, 20; see also Manook II, above n 193, *4. 197 See Al Shimari, above n 185; Saleh II, above n 186; In re Xe Services, above n 183; Manook I, above n 193; Al-Quraishi, above n 189, 741–60; Manook II, above n 193. 195 196

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the act was expressly authorised by the employer or it occurred within the scope of the employee’s employment.198 Contractor personnel who are injured while working in Iraq or Afghanistan sue their own PMC for fraud, misrepresentation and negligence, and survivors of PMC personnel (killed while working in Iraq or Afghanistan) sue PMCs for wrongful death and negligence.199

B. Defences There are a number of defences a PMC can raise when facing claims under the ATS and state law tort theories. The defences primarily arise due to the PMC’s contractual relationship with the government, and the location and circumstances in which that contract is serviced or fulfilled. First, PMCs claim that, because they are, in essence, effectuating government policies and decisions, acting for or on behalf of the government, or are performing government-like functions, they should be entitled to the same immunities the government and government employees would be entitled to if sued for the same conduct. Secondly, PMCs and their personnel are typically hired to work overseas with or for US military troops in locations where the military is engaged in active combat, in post-conflict military activity or both, such as in Iraq or Afghanistan. This factor raises substantial foreign affairs and military policy implications, thus giving rise to a number of defences potentially available to PMCs. (i) The Political Question Doctrine The political question doctrine is a judicially created doctrine that prevents a court from taking jurisdiction over a claim because it is a ‘political question’ that is not appropriately answered by the judicial 198 See, eg McMahon v Presidential Airways Inc 410 FSupp2d 1189 (MD Fla 2006) (McMahon I); Whitaker v Kellog Brown & Root Inc 444 FSupp2d 1277 (MD Ga 2006); Carmichael v Kellog Brown & Root Services Inc 564 FSupp2d 1363 (ND Ga 2008); In re KBR Burn Pit Litigation 736 FSupp2d 954 (D Md 2010); Lessin v Kellog Brown & Root No CIVA H-05-01853 2006 WL 3940556 (SD Tex Jun 12 2006); Smith v Halliburton Co et al No H-06-0462 2006 WL 2521326 (SD Tex Aug 30 2006); Getz v Boeing Co No CV 07-6396 2008 WL 2705099 (ND Cal July 8 2008); Harris v Kellog Brown & Root No 08-563 2009 WL 1248060 (WD Penn April 30 2009); Taylor v Kellog Brown & Root Services Inc No 2:09cv341 2010 WL 1707530 (ED Va April 19 2010) appeal docketed No 10-1543 (4th Cir 2010); Bootay v KBR Inc No 2:09-cv-1241 2010 WL 3632720 (WD Pa Sept 9 2010); Bixby v KBR Inc No CV 09-632-PK 2010 WL 4296637 (D Or Oct 22 2010). 199 See, eg In re Blackwater Security Consulting LLC 460 F3d 576 (4th Cir 2006) cert denied 549 US 1260 (2007); Lane v Halliburton 2006 WL 27 96249 (SD Tex 2006) consolidated as Lane v Halliburton et al 529 F3d 548 (5th Cir 2008); Martin v Halliburto 618 F3d 476 (5th Cir 2010); Fisher v Halliburton et al 390 FSupp2d 610 (SD Tex 2005); Nordan v Blackwater Security Consulting LLC et al 382 FSupp2d 801 (EDNC 2005); In re KBR, above n 198.

The United States 369 branch due to separation of powers or prudential considerations.200 Political questions are deemed non-justiciable; therefore, a court can consider the merits only to the degree necessary to determine whether the matter is inappropriate for judicial resolution.201 In cases involving ‘foreign relations’ and ‘military affairs’, the political question doctrine is almost always raised by the defendant in an attempt to have the case dismissed and, historically, courts have been reluctant to intervene in such matters, particularly during wartime.202 In cases involving PMCs and contractor personnel who are working overseas with the US military in Iraq or Afghanistan, PMCs have raised the political question doctrine as a means of avoiding liability. Indeed, the doctrine has been implicated in almost every case surveyed for this chapter.203 The preliminary issue of whether the status of defendant as a private corporation prevents the defendant from raising the political question doctrine to bar suit has had varied treatment by the courts. Some have found that the defendant’s status has little relevance to whether a claim raises a political question, noting the Supreme Court’s dictate: ‘[T]he identity of the litigant is immaterial to the presence of [political question] concerns in a particular case’.204 On the other hand, one court discussed at length the fact that the defendant PMC was a private defendant, stating that the doctrine ‘has almost never been applied to suits involving private defendants’.205 And the court in Saleh II, in comparing cases dismissed on political question grounds to the one before it in which PMCs were sued for their part in the Abu Ghraib torture, noted that those cases involved the US itself as the defendant, while in the instant case the plaintiffs were suing private parties for actions of a type that violate clear US policy.206 In analysing whether a case should be dismissed on political question grounds, courts typically look to the factors set forth by the Supreme 200 Marbury v Madison 5 US 137 170 (1803) (‘questions, in their nature political . . . can never be made in this court’); Baker v Carr 369 US 186 210 (1962) (‘The nonjusticiability of a political question is primarily a function of the separation of powers’). 201 Baker, above n 200, 198. 202 See, eg Gilligan v Morgan 413 US 1 10 (1973) (claim regarding acts of Ohio National Guard was political question); Occidental of Umn al Qaywaayn, Inc v A Certain Cargo of Petroleum 577 F2d 1196 1203 (5th Cir 1978) (claim raising foreign relations generally beyond authority of court’s adjudicative powers); Aktepe v United States 105 F3d 1400 1403 (11th Cir 1997) (claim raising negligence by navy was political question). 203 See, eg McMahon v Presidential Airways 502 F3d 1331 (11th Cir 2007) (McMahon II); Lane, above n 199; Ibrahim I, above n 185; Potts v Dyncorp International LLC 465 FSupp2d 1245 (MD Ala 2006); Whitaker, above n 198; Carmichael, above n 198; Al Shimari, above n 185; In re Xe Services, above n 183; Al-Quraishi, above n 189; In re KBR, above n 198; Lessin, above n 198; Smith, above n 198; Getz, above n 198; Harri, above n 198; Taylor, above n 198; Bixby, above n 198. 204 United States v Munoz-Flores 495 US 385 394 (1990). 205 See McMahon II, above n 203. 206 Saleh II, above n 186, 16.

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Court in Baker v Carr: (i) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (ii) a lack of judicially discoverable and manageable standards for resolving it; (iii) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; (iv) the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; (v) an unusual need for unquestioning adherence to a political decision already made; and (vi) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.207 Only one of these factors need be ‘inextricable from the case at bar’ to implicate the political question doctrine. In the relevant PMC cases, courts that have dismissed claims on the basis of the political question doctrine have looked to the contract between the PMC and the government agency in order to determine whether and to what extent the military was supervising or had control over the actions of the PMC employees. These courts have generally concluded that asserting jurisdiction would have required the court to decide a question that the Constitution intended to be left to the legislative or executive branches, or that the court would have to substitute its judgement for that of the military, and as such would have evinced a lack of respect for the political branches.208 Courts that have refused to dismiss claims on the basis of the political question doctrine have seemed largely concerned with the first two Baker factors, finding that hearing the claim would not require judicial examination of military policy or military decision making and finding that there does exist judicially discoverable and manageable standards for resolving such claims, which, in these cases, are governed by simple negligence standards.209 Notably, in In re Xe Services, the US appeared as an interested party, asserting that the defendants were not acting as employees of the US and that the contracts at issue provided for Xe management to oversee the day-to-day operations of its employees who were under the direct supervision of Xe management.210

207

Baker, above n 200, 217. See, eg Lane, above n 199, 563; Ibrahim I, above n 185, 16; Saleh I, above n 178, 57; Whitaker, above n 198, 1281; Carmichael, above n 198 1372; Smith, above n 198, *6; Taylor, above n 198, *7. 209 See Lane, above n 199, 560; McMahon II, above n 203, 1363–64; Potts, above n 203, 1249–53; Al Shimari, above n 185, 714; In re Xe Services, above n 183, 601–02; Al-Quraishi, above n 189; Lessin, above n 198, *3; Bixby, above n 198,*12. 210 In re Xe Services, above n 183, 601. 208

The United States 371 (ii) Defences Relating to the Federal Tort Claims Act (a) Introduction As mentioned, when faced with claims for monetary damages, PMCs have raised defences that are grounded in their contractual relationship with the government, which, under a judicially created doctrine, is entitled to sovereign immunity, unless specifically waived. Pursuant to the Federal Tort Claims Act (FTCA), the government specifically waives its sovereign immunity for personal injury caused by the negligent acts or omissions of its employees who are acting within the scope of their employment.211 However, there are several exceptions, which, relevant to this chapter, include the ‘discretionary function’, ‘combatant activities’ and ‘foreign country’ exceptions.212 Additionally, under the Westfall Act, government employees are not liable for torts committed within the scope of their employment, making an FTCA claim against the government the exclusive remedy for such torts and, therefore, subject to the same exceptions.213 Thus, a person injured by the negligence of a government employee has a limited remedy for obtaining compensatory monetary damages and is often barred altogether, given the number of exceptions present in the FTCA. Under the statutory terms of the FTCA, government contractors are not considered ‘government employees’ and, therefore, are not statutorily entitled to the same immunities.214 Accordingly, in an attempt to limit their liability for the negligence of their employees, PMCs typically raise FTCA-related exceptions not as ‘government employees’, but, rather, under the same principles of immunity to which the government is entitled with respect to these exceptions. In many cases involving a FTCA defence, courts seem to resort to utilising the policy underlying the political question doctrine for analysing whether FTCA-related defences bar the claims. In other words, courts have looked at the degree of control the military had over the contractor and whether reviewing the claim would involve passing upon military policy, judgements and decision making, which is essentially what courts examine in determining whether a claim involves a political question.

211

28 USC, para 1346 (2011); 28 USC, paras 2671–80 (2006). 28 USC, para 2680. 213 28 USC, para 2679. 214 28 USC, para 2671 (‘employee of the government’ includes persons acting on behalf of any ‘federal agency’, which includes ‘corporations primarily acting as instrumentalities or agencies of the US, but does not include any contractor with the United States’). 212

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(b) The General Contractor Defence The General Contractor Defence (GCD), sometimes referred to as the Military Contractor Defence (MCD) when DoD contractors are involved, initially arose out of the ‘discretionary function’ exception of the FTCA and, as such, was an unknown and infrequently used defence. However, the marked increase in the use of PMCs in Iraq and Afghanistan has resulted in a growing number of civil lawsuits against PMCs, turning the GCD into a frequently raised defence in PMC litigation and the topic of voluminous scholarship. This has resulted in confusing and sometimes contradictory treatment of the GCD by courts and scholars. Pursuant to a circuit court split, the General Contractor Defence was crystallised by the Supreme Court in Boyle v United Technologies Corp.215 Boyle was a products liability suit brought by the estate of a Marine pilot who had drowned when his helicopter crashed. The plaintiff, alleging design defects, sued the helicopter’s manufacturer, which had been supplying equipment under government contract. As a preliminary matter, the Court determined that ‘uniquely federal interests’ were at stake and that application of state law liability theories presented a ‘significant conflict’ with federal policies or interests.216 The Court then looked to the ‘discretionary function’ exception in the FTCA, which maintains the government’s sovereign immunity for claims based upon ‘the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government’.217 The Court reasoned that, if the helicopter’s design was a result of discretionary government policy decisions, liability of the private contractor, who was merely executing such decisions, should not be permitted.218 Thus, under Boyle, government contractors who ‘design and manufacture’ military equipment are typically not liable to individuals injured by such equipment.219 It was only in 2003 that the GCD was applied to immunise a government contractor that was providing a service, rather than a product. In Hudgens v Bell, the Eleventh Circuit held that the GCD recognised in Boyle was applicable to a government contractor that had maintained helicopters for the army and who had been sued by individuals injured when the helicopter crashed, claiming the helicopters had been negligently maintained. The plaintiff had argued that the defence applied only to design defects but the court found otherwise.220 215

Boyle v United Technologies Corp 487 US 500 (1988). ibid, 504–13. 217 28 USC, 2680(a). 218 Boyle, above n 215, 511–12. 219 See, eg Baily v McDonnell Douglas Corp 989 F2d 794 801 (5th Cir 1993) and failure to warn cases, In re Joint E&S Dist NY Asbestos Litig 897 F2d 626 (2d Cir 1990). 220 Hudgens v Bell Helicopters/Textron 328 F3d 1329 1334 (11th Cir 2003). 216

The United States 373 The court, though recognising that Boyle had applied to procurement contracts, looked at whether subjecting a contractor to liability under state tort law would create a significant conflict with a unique federal interest. Finding it so, it concluded that the GCD was applicable to the service contract between DynCorp and the government.221 Hudgens set precedent for the Boyle doctrine and its ‘discretionary function’ approach to apply in cases of service contracts, such as those at issue in the cases involving Blackwater (security services contractors), Titan and CACI (interpreter and interrogation services contractors at Abu Ghraib prison), and other contractors providing services in Iraq and Afghanistan.222 Indeed, Hudgens was relied upon, in part, to dismiss certain claims against Titan. The GCD/Boyle doctrine was raised in Saleh II, in which the court found the doctrine pre-empted plaintiffs’ state law tort claims, and in Al-Quraishi, in which the court found the doctrine did not pre-empt plaintiffs’ state law tort claims.223 (c) The Combatant Activities Exception The ‘combatant activities’ (CA) exception under the FTCA allows the government to maintain its sovereign immunity for ‘any claim arising out of the combatant activities of the military or naval forces, or Coast Guard during time of war’.224 Like the political question doctrine, this exception has been raised as a defence by almost every PMC sued for the negligent acts of its personnel in Iraq and Afghanistan.225 Because the suit is against the PMC, not the government, and a PMC is not a government employee or entity under the FTCA, and the exception does not apply directly to PMCs, the CA exception defence, as applied to contractors, is actually one based on the principle of pre-emption, as was used in Boyle. Two cases, Koohi v United States and Bentzlin v Hughes Aircraft Co, set 221

ibid. In McMahon I, a case involving government contractors that provided air transportation and operation support services to DoD in Afghanistan, the GCD under Boyle and Hudgens was relied upon by the court to extent it was a ‘colourable defence’ for purposes of removal from state to federal court. Above, n 198, 1197–98. 223 Saleh II, above n 186, 5; Al-Quraishi, above n 189, *27. See also Martin, above n 199, 485 (lower court’s denial of derivative sovereign immunity defence not appealable as collateral order); In re KBR, above n 198, 964 (defence of derivative sovereign immunity fails); Bixby, above n 198, *15 (no immunity under general contractor defence for services provided). 224 28 USC, para 2680(j). 225 See, eg McMahon II, above n 203; Lane, above n 199; Martin, above n 199; Fisher, above n 199; McMahon I, above n 198; Whitaker, above n 198; Ibrahim II, above n 186; Carmichael, above n 198; Al Shimari, above n 185; Al-Quraishi, above n 189; In re KBR, above n 198; Lessin, above n 198; Smith, above n 198; Harris, above n 198; Taylor, above n 198; Bixby, above n 198. 222

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the stage for the frequent use of the CA exception defence in recent PMC litigation. In Koohi, the Ninth Circuit examined the applicability of the CA exception in the context of claims against the US for the negligent operation of a US warship and claims against the weapons manufacturer for design defects.226 The plaintiffs were heirs of civilian passengers who died during an accidental shooting of a passenger aircraft during the ‘tanker war’ hostilities between Iran and Iraq in the 1980s. The court found there was no doubt that the ‘tanker war’ constituted a ‘time of war’ for purposes of the CA exception.227 The court reasoned that the action was pre-empted by the exception even as to the defence contractors because ‘one purpose of the combatant activities exception is to recognise that during wartime encounters no duty of reasonable care is owed to those against whom force is directed as a result of authorized military action’.228 After Koohi, it was but a short step to finding that claims against a PMC for manufacturing defective missiles that killed marines during Operation Desert Storm were pre-empted by the CA exception, as in Bentzlin.229 There, the court relied both on the pre-emptive principle put forth in Boyle and the combatant exception raised in Koohi to immunise government contractors from liability: ‘the federal interest in controlling military policy in war’ pre-empted state law tort claims.230 Despite the seemingly expansive application to PMCs in Koohi and Bentzlin and the regularity with which PMC have raised the CA exception in recent litigation, the majority of courts have been reluctant to limit liability against PMCs on the basis of this exception, relying more on the political question doctrine to limit liability. The only major case, thus far, in which the court dismissed claims against a PMC on the basis of the CA exception is that involving Titan and CACI (the linguist and interrogator contractors at the Abu Ghraib prison).231 Until recently, the CA exception was viewed as being limited to product liability claims, such as those in Koohi and Bentzlin. In Saleh II, however, the DC Circuit dramatically extended the exception to cover service providers, such as interrogation and interpretation services. The DC Circuit held that the plaintiffs claims were pre-empted, ruling that ‘during wartime, where a private service contract is integrated into the combatant activities over 226

Koohi v US 976 F2d 1328 (9th Cir 1992). ibid 1335. 228 ibid 1137. 229 Bentzlin v Hughes Aircraft Co 833 FSupp 1486 (CD Cal 1993). 230 ibid, 1493. 231 Saleh II, above n 186, 17 (dismissing all of plaintiffs’ claims); see also Taylor, above n 198, *10. In Taylor, the plaintiff was a Marine serving at Camp Fallujah in Iraq when he was electrocuted allegedly by defendants’ negligent acts. The court dismissed claims on the basis of the ‘combatant activities’ exception, defining such as ‘activities both necessary to and in direct connection with actual hostilities’. Ibid, citing Saleh II, above n 186, 6. 227

The United States 375 which the military retains command authority, a tort claim arising out of the contractor’s engagement in such activities shall be preempted’.232 (d) The Feres Doctrine The Feres Doctrine is a judicially created exception to the government’s waiver of sovereign immunity under the FTCA for state law torts. Under the doctrine, service members are barred from bringing suit against the government for injuries that ‘arise out of or are in the course of activity incident to [military] service’.233 The phrase ‘incident to service’ operates broadly to bar most tort claims arising in the course of a soldier’s duties, whether in peacetime or wartime, in combat or on a base.234 As applicable to PMCs, however, the Supreme Court in Boyle rejected the Feres Doctrine as a basis for a government contractor defence, stating that it would be ‘in some respects too broad and in some respect too narrow’.235 Since Boyle, the Feres Doctrine has only been raised in one case involving a PMC.236 (e) Foreign Country Exception The FTCA also provides that the government does not waive its sovereign immunity for ‘[a]ny claim arising in a foreign country’.237 The only PMC case to address this exception is McMahon v Presidential Airways, in which the court was considering whether the contractor had a ‘colourable defence’ to support removal from state to federal court.238 The court declined to find that the ‘foreign country’ exception was a colourable defence because the purpose of the exception is to protect the government from being subjected to the laws of a foreign jurisdiction.239 To date, no other PMCs have raised this exception, perhaps due to the clear rationale underlying the exception.

232 233 234

1998).

Saleh II, above n 186, 9. Feres v United States 340 US 135 146 (1950). See, eg Feres, above n 233, 137; Jimenez v United States 158 F3d 1228 1229 (11th Cir

235 Boyle, above n 215, 510. See also McMahon II, above n 203, 1356 (relying on Boyle, the court held that private contractors for the military were not entitled to immunity under the Feres Doctrine). 236 McMahon II, above n 203, 1336. 237 28 USC, para 2680(k). 238 McMahon I, above n 198. 239 ibid.

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(iii) Derivative Absolute Official Immunity Governmental absolute immunity developed as part of federal common law to protect discretionary government functions from the potentially debilitating distraction of defending private law suits.240 In Westfall, the Supreme Court articulated a two-part test whereby immunity from state law tort liability attaches for federal officials exercising discretion while acting within the scope of their employment.241 The defence of absolute immunity was soon extended to government contractors in Mangold v Analytic Services.242 There, the court granted derivative immunity to a government contractor for statements it made in response to the inquiries of air force investigators regarding improper practices by air force officers.243 The Court found that the Westfall principle of ‘ensuring talented candidates are not deterred by the threat of damages suits for entering public service’, combined with the same interest that justifies protecting witnesses in government-sponsored investigations, supported the extension of immunity.244 Read broadly, Mangold intimates that, in some circumstances, government contractors are immune from liability while performing their government contracts. To date, there have been four PMC cases that have implicated the derivative absolute official immunity defence: Al Shimari, In re Xe Services, In Re KBR Burn Pit Litigation and Martin v Halliburton.245 The court in Al Shimari addressed the defence most extensively and found that defendants (CACI interrogators) had not satisfied the two-part Westfall test or demonstrated that any public benefit outweighed individual accountability, a balancing test also articulated in Westfall.246 The Martin case, in which a private contractor’s daughter sued the PMC for negligence which resulted in her father’s death, is notable because the court, in determining whether Halliburton’s conduct was ‘discretionary’, looked to the regulations governing contracting. The court found that the LOGCAP regulations expressly provide that ‘contractors will not be used to perform inherently governmental functions’ and that the term is defined as a function requiring the exercise of discretion or the use of value judgements in making decisions for the government, such that the defendant failed the Westfall test.247

240 241 242 243 244 245 246 247

See Westfall v Erwin 484 US 292 295 (1988) superceded by 28 USC, para 2679 (2006). ibid 297–98. Mangold v Analytic Services 77 F3d 1442 (4th Cir 1996). ibid, 1450. ibid, 1448. Martin, above n 199; Al Shimari, above n 185; In re Xe Services, n 183; In re KBR, n 198. Al Shimari, above n 185, 715–16. Martin, above n 199, 484–86.

The United States 377 (iv) The Defence Base Act The Defence Base Act (DBA) is a federal statute that limits a contractor company’s liability to its employees who are performing work for the military overseas and are injured within the course and scope of their employment.248 Further, the DBA is an exclusive remedy if the employee is working under a contract between his employer and the US for the purpose of engaging in public work, including contracts and projects in connection with national defence and war activities.249 The DBA is available as a defence for PMC employers who are sued by their employees for negligent or fraudulent acts, such as in the case of Fisher v Halliburton and Nordan v Blackwater.250 A narrow exception to the DBA’s exclusivity remedy applies where the employer acts with specific intent to injure the employee. In Fisher, the plaintiffs had alleged that the defendants knew and intended that plaintiffs would be attacked by enemy insurgents. Accordingly, the court refused to dismiss the case despite Halliburton’s attempt to use the DBA as a defence.251

V I . US PARTIC IPATION IN I NT E R NATION AL REGULATION

There are very few settled international regulations or agreements concerning the use of private actors in conflict zones that the US has recognised as binding.252 However, the US was an active participant in the recent creation of the non-binding Montreux Document253 regarding state use of private military and security companies and the International 248

42 USC, para 1651(c). Fisher, above n 199, 613. ibid; Nordan, above n 199. 251 Fisher, above n 199, 613–14. 252 For example, the US is neither a state party nor signatory to what is commonly referred to as the ‘Mercenaries Convention’ and, further, has also maintained that Article 47 of Additional Protocol I to the Geneva Conventions (which the US also has not adopted) regarding mercenaries, unlike many other parts of Protocol I, does not represent customary international law. See ‘The International Convention Against the Recruitment, Use, Financing and Training of Mercenaries’, GA Res 44/34 UN GAOR 6th Comm 44th Sess UN Doc A/44/766 (4 December 1989); see also MJ Matheson, ‘The Sixth Annual American Red Cross–Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions—Session One: The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions’ (1987) 2 American University Journal of International Law and Policy 426–27. 253 ‘Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict’, GA Res 636 UN GAOR 63rd Sess, UN Doc A/63/467 (6 October 2008), available at http://www.un.org/ga/search/view_doc.asp?symbol=A/63/467 (accessed on 11 April 2011). 249 250

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Code of Conduct for Private Security Service Providers254 (the Code of Conduct, or Code) that followed soon thereafter. The Montreux Document was finalised on 17 September 2008, with the US as one of 17 charter state participants.255 The Document provides guidelines and best practices, based on principles in existing international law, regarding state regulation and state responsibility of private military contractors they employ. The principles enshrined in the Montreux Document led directly to the International Code of Conduct for Private Security Service Providers, which was signed on 9 November 2010, by 58 private security companies (including Blackwater), in a ceremony attended by the Legal Advisor to the US Department of State, Harold Koh.256 Koh described the Code of Conduct effort as ‘bringing together all of the key stakeholders—states, civil society organisations, relevant experts, clients, and the private security companies themselves . . . to address gaps in oversight and accountability left by traditional regimes’.257 The Code of Conduct includes general rule-of-law commitments as well as specific commitments regarding the conduct of personnel and company management and governance. General rule-of-law commitments include respecting human rights, creating an internal system to ensure effective and lawful operations, and cooperation with national and international authorities investigating violations of national and international law that may be committed by their employees.258 Specific commitments set out requirements governing rules for the use of force, training personnel and incident reporting. The Code also outlines an industry commitment to future verification, field auditing, and a complaint process for both firm personnel and public citizens.259 While some states, most notably the UK, have decided to mandate firms seeking

254 ‘International Code of Conduct For Private Security Service Providers’ (Geneva Centre for the Democratic Control of Armed Forces, 9 November 2010), available at http:// www.dcaf.ch/dcaf/Projects/About?id=122292&lng=en (accessed on 11 April 2011) (International Code of Conduct for PSSPs). 255 There are 37 participating states as of 27 February 2011. See ‘Participating States of the Montreux Document’ (Swiss Federal Department of Foreign Affairs, 16 February 2011), available at http://www.eda.admin.ch/eda/en/home/topics/intla/humlaw/pse/ parsta.html. 256 BB Soder, ‘58 Firms Sign Historic International Code of Conduct for Private Security Services Providers’ (Human Rights First, 9 November 2010), available at http://www. humanrightsfirst.org/2010/11/09/58-firms-sign-historic-international-code-of-conduct-forprivate-security-services-providers/ (accessed on 11 April 2011). 257 N Roseman, ‘International Code of Conduct for Private Security Providers: a MultiStakeholder Initiative of the 21st Century?’ (Institute for Human Rights and Business, 24 November 2010), available at http://www.institutehrb.org/blogs/guest/international_ code_of_conduct_for_private_security_providers.html (accessed on 11 April 2011). 258 International Code of Conduct for PSSPs, above n 254, paras 16–27. 259 ibid, paras 33–37, 45–59.

The United States 379 government contracts join the Code of Conduct, the US currently views agreement to the Code of Conduct as voluntary.260 Currently, signatory firms are undertaking an effort to develop and harmonise industry standards to implement, and thus enable states to monitor PMC compliance with Code of Conduct requirements.261

V I I . C ON C LUSION

The growth of the private military industry in the US was sparked, in part, by unanticipated military needs, first in Iraq and later in Afghanistan, and subsequently met with a civilian and military legal regime that itself was both undeveloped and underdeveloped. The necessity to create a more robust accountability regime has, in turn, given birth to a host of alterations to applicable civil and criminal liability laws that are controversial and have yet to be fully tested. The execution of national regulations designed to provide punitive accountability for misdeeds by PMCs and their personnel has been undercut by a deep institutional ambivalence as to which legal regime, civilian or military, is appropriate and required to ensure such accountability. Civilian prosecutors and civilian judges have routinely demonstrated hesitancy in engaging in actions that could potentially invoke questions of foreign affairs or, worse, military affairs. Military legal officers, however, possess a compelling incentive to charge and secure convictions of private contractors who engage in violations of law in theatre. The most compelling incentive is that their government brethren bear the burden of the bitter feelings that triggerhappy contractors can engender. The civilian population in a war zone largely fails to differentiate between US troops and US contractors. Additionally, the course of the US regulatory regime over the use of PMCs and contractor personnel appears far from complete. Despite internal efforts by agencies such as the Department of Defence and Department of State to remedy problems with the use and oversight of military contractors, regulatory and monitoring bodies such as the Commission on Wartime Contracting and the Government Accountability Office continue to document the need for better management and

260 Secretary of State HR Clinton, ‘Remarks at the President’s Interagency Task Force to Monitor and Combat Trafficking in Persons’ (US Department of State, Washington, DC, 1 February 2011), available at http://www.state.gov/secretary/rm/2011/02/155831.htm (accessed on 11 April 2011). 261 See ‘Letter from Ambassador Claude Wild to Private Security Service Providers’ (8 October 2010), available at http://www.scribd.com/doc/42798476/2010-InternationalCode-of-Conduct-for-Private-Security-Service-Providers.

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accountability, clearer standards and policy, and improved screening and training of contractors and tracking of information.262 On the other hand, just over the last few years, numerous legislative initiatives aimed at greater oversight and accountability have been put forth and many of these bills, or compromised versions, exist as binding law today. For example, defence authorisation bills for the last four years contain provisions that together essentially (i) preclude contractors from performing ‘inherently government’ functions, such as interrogation; (ii) increase coordination between agencies with regard to monitoring and tracking, such as requiring a joint database for detailed contractor information, particularly for security personnel; (iii) increase coordination and delineate responsibility regarding criminal liability laws; (iv) expand the jurisdiction of relevant regulations governing contractors in theatre; and (v) allow misconduct by contractors to be the basis for award fees, suspension and disbarment. These are no small advancements. There is, however, unquestionably room for additional legislation to improve the regulatory regime, such as the Security Contractor Accountability Act of 2007, introduced by then-Senator Obama, which would grant US federal courts jurisdiction to prosecute contractors of all US agencies operating near a conflict area and establish a special FBI unit to investigate suspected misconduct of contractor personnel in theatre.263 Regardless of the disposition of any particular piece of legislation, the final contours of the regulation and the criminal and civil accountability of contractors remains an open question. As troop levels in Iraq and Afghanistan decrease, there is great potential for the currently developing set of regulations and laws to linger in an undeveloped stage until the next conflict abroad. Undoubtedly, it would be far better to continue the development of this regime despite the drawdown of troops so as to avoid altogether a Blackwater/Nisoor Square incident in the future, or at the very least, to have a comprehensive set of laws and the necessary funding in place to effectively hold private contractors accountable for their wrongful conduct.

262 See, eg above n 76; n 86; ‘Warfighter Support: Continued Actions Needed by DOD to Improve and Institutionalise Contractor Support in Contingency Operations’ statement by William M Solis GAO Director of Defence Capabilities and Management at the hearing before the Subcommittee on Defence Committee on Appropriations House of Representatives, 110th Cong (2010). 263 S 2147 110th Cong Security Contractor Accountability Act (2007).

17 Canada: Beyond the Law? The Regulation of Private Military and Security Companies Operating Abroad DAVID ANTONYSHYN, JAN GROFE AND DON HUBERT*

I . I NTRODUC TION

T

HE PRIVATE MILITARY and security sector has expanded rapidly over the past decade1 and there is every reason to expect this trend to continue. Western militaries are increasingly dependent on them when deploying abroad, and demands from the private sector and humanitarian organisations operating in high-risk zones are unlikely to diminish. Allegations, sometimes substantiated, of abuses have resulted in widespread calls for international regulation of a sector that seems outside the control of traditional state-based accountability mechanisms.2 Private military and security companies (PMSCs) frequently operate in * David Antonyshyn and Jan Grofe undertook the original research for this chapter and prepared the initial draft. They are the chapter’s principal authors. Don Hubert supervised the preparation of the chapter and edited the final version, released in March 2009. Major David Antonyshyn is currently a legal advisor to the Canadian Forces completing his LL.M at the University of Ottawa. Any opinions expressed in this article are those of the authors and do not necessarily reflect the views of the government of Canada, the Canadian Forces, or the Office of the Judge Advocate General. Jan Grofe worked for Amnesty International as a Business & Human Rights Advisor and researched PMSCs. He is a German lawyer holding degrees from the University of the Western Cape (RSA, Int. Human Rights LLM) and the London School of Economics (UK, MSc Human Rights). Don Hubert is Associate Professor of International Affairs at the Graduate School of Public and International Affairs at the University of Ottawa. 1 PW Singer, ‘War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law’ (2004) 2 Columbia Journal of Transnational Law 521. 2 J Cockayne and E Speers Mears, ‘Private Military and Security Companies: A Framework for Regulation (International Peace Institute, 2009), available at www.ipinst. org/asset/file/428/PMSC_EPub.pdf (accessed March 2009).

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jurisdictions where governance is weak and the rule of law inconsistent. The home states of companies and security personnel appear reluctant to regulate their activities abroad, in part for fear that companies will move their headquarters to more accommodating jurisdictions. And where states are the contractors themselves, they may be disinclined to act at the same time as effective regulators. This chapter seeks to describe the existing state of Canadian legislation, regulation and policy relevant to PMSCs operating outside of Canada. It focuses both on Canadian PMSCs and Canadian nationals working for PMSCs (Canada as the home state), and on PMSCs hired by the government of Canada (Canada as the contracting state).3 PMSCs are understood as including private business entities providing military and/or security services, including: guarding and protection of persons and objects, whether armed or not; maintenance and operation of weapons systems; prisoner detention; advice to or training of local forces and security personnel; demining; and services in the field of logistics and personnel support such as catering, transport, maintenance and construction. Canada does not have legislation designed to regulate either the services provided by Canadian PMSCs operating outside of Canada or the conduct of Canadian citizens working for foreign PMSCs. There are, however, a number of general legislative and regulatory provisions that may affect aspects of the activities performed by Canadian PMSCs. Similarly, Canada does not have legislation governing the contracting of PMSC by the Canadian government itself, though policies exist and are being further developed. 3 When it comes to the operation of PMSCs in Canada, all aspects of Canadian law applicable to the conduct of private individuals and corporations operating in Canada also apply to PMSCs. No private companies are actively involved in ‘military’ operations per se on Canadian soil, except for companies involved in the field of logistics and training, and/or in the production and distribution of military equipment, those activities raising no particular concerns from a human rights perspective. Moreover, the private security and investigation industry activities in Canada is regulated provincially, each of the 10 provinces and one of the three territories having their own legislation and regulations governing that industry. Those laws and regulations set the framework and conditions governing the provision of services in the field of investigation, guarding, protection of persons, property or premises, transport of valuable goods, security consulting, electronic security systems, and locksmith work. These provincial (and territorial) regimes establish licensing regimes for individuals and business entities providing those services: Alberta: Private Investigators and Security Guards Act, RSA 2000, c P-23; British Columbia: Security Services Act, SBC 2007, c 30; Manitoba: Private Investigators and Security Guards Act, CCSM, c P-132; New Brunswick: Private Investigators and Security Services Act, RSNB 1973, c P-16’ Newfoundland and Labrador: Private Investigation and Security Services Act, RSNL 1990, c P-24; Nova Scotia: Private Investigators and Private Guards Act, RSNS 1989, c 356; Ontario: Private Security and Investigative Services Act, 2005, SO 2005, c 34; Prince Edward Island: Private Investigators and Security Guards Act, RSPEI 1988, c P-20; Québec: Private Security Act, RSQ, c S-3.5, An Act respecting detective or security agencies, RSQ, c A-8; Saskatchewan: Private Investigators and Security Guards Act, 1997, SS 1997, c P-26.01; Yukon: Private Investigators and Security Guards Act, RSY 2002, c 175.

Canada 383 Canada is not a party to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries,4 nor has Canada been substantively engaged with the Human Rights Council’s Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of people to selfdetermination. Canada has, however, been an active participant in the intergovernmental initiative launched in 2006 by the Swiss government and the International Committee of the Red Cross aimed at promoting respect for international humanitarian law and human rights law by PMSCs operating in situations of armed conflict.5 In this context, Canada supports efforts to ensure PMSCs and their personnel understand, respect and act in a manner consistent with international law, and considers that the articulation of non-legally binding standards, developed with the participation of states and non-state actors, are an important and pragmatic step forward in that direction.

I I . C ANAD A AS A HOME STATE

A. The Canadian Private Military and Security Industry Canada is not among the leading contributors to the global private military and security industry. It is, however, home to a number of PMSCs and Canadian citizens are represented within the wider PMSC sector. (i) Canadian PMSCs Offering Armed Services Some Canadian PMSCs offer armed services and related consultancy. One of those PMSCs is Garda World Security Corporation.6 The company, traded at the Toronto Stock Exchange (2007 annual revenue $683 million), employs over 50,000 people globally and its services include physical security, cash handling and investigations. GardaWorld,7 a 100% subsidiary of the Canadian Garda World Security Corporation, has offices around the world and offers services such as intelligence, convoy or static object protection, training for hostile 4 United Nations Treaty Series, 4 December 1989, 2163 at 75. As of 29 January 2009, only 32 states were parties to the convention. 5 UN Doc. A/63/467-S/2008/636, ‘Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies during Armed Conflict’, Government of Switzerland and International Committee of the Red Cross, Montreux 17 September 2008. 6 Headquartered in Montreal; see http://www.gardaglobal.com/. All internet links contained in this document were last visited 17 February 2009. 7 Headquartered in Virginia, US; see http://www.garda-world.com/.

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environments, crisis response and management in what the company calls ‘high-risk markets’. GardaWorld in May 2007 claimed to have 1,800 security PMSC employees in Iraq and in Afghanistan.8 At that time, for example, they were providing security for the British High Commission in Baghdad.9 Another Canadian company, Tundra Strategic Security Solutions, offers similar services including physical security and executive protection, sniper training, explosive entry, maritime operations, risk assessments and analysis.10 The company, recently hired by The Globe And Mail newspaper to undertake a security analysis of the situation in Afghanistan,11 claims that it has ‘consultants in Iraq and Afghanistan and can begin any consulting services in those countries within 24 hours’.12 Another Canadian company, Globe Risk Holdings, offers a range of services, including risk assessments, regional analysis and crisis intervention services.13 (ii) Canadian PMSCs Offering Logistical Services Canadian PMSCs also offer logistical services and provide equipment. From 2002 to 2006, the US–Canadian company SNC-Lavalin PAE Inc14 received $252 million from the Canadian government for providing logistics for the Canadian mission in Afghanistan under the ‘Canadian Forces Contractor Augmentation Program’ (CANCAP).15 Skylink Aviation16 offers a range of aviation-related services from charter flights (personnel and cargo, helicopters and fixed-wing aircrafts), aircraft maintenance and project management. The company has worked for the 8 M Lamey, ‘Garda Has 1,800 Workers in War Zones’, The Gazette, 15 May 2007, available at www.canada.com/montrealgazette/news/business/story.html?id=28cd7d7e-9d92-435e9001–960e21d467c8. 9 J Swain, ‘Snatched Without a Shot’, The Sunday Times, 3 June 2007, available at www. timesonline.co.uk/tol/news/world/iraq/article1875657.ece. 10 Headquartered in Toronto; see tundra-security.com/. 11 G Smith, ‘Taliban Turning to More “Complex” Attacks’, The Globe and Mail, 26 January 2009, available at www.theglobeandmail.com/servlet/story/RTGAM.20090126. wafghan26/BNStory/Afghanistan/. 12 Services; see tundra-security.com/services.html. 13 Globe Risk Holdings (GRH) headquartered in Toronto; see www.globerisk.com/. L Rimli and S Schmeidl, ‘Private Security Companies and Local Populations. An Exploratory Study of Afghanistan and Angola’, swisspeace, November 2007. GRH is indicated as being active in Afghanistan: see www.swisspeace.ch/typo3/fileadmin/user_upload/pdf/ PSC.pdf. 14 Headquartered in Montreal; see www.snclavalinpae.com/. 15 D Perry, ‘PMSC Employees in Kandahar, Eh? Canada’s “Real” Commitment to Afghanistan’ (2007) 9 Journal of Military and Strategic Studies 4, 7, available at http:// www.jmss.org/2007/2007summer/articles/perry.pdf. Department of National Defense. ‘Evaluation of the Canadian Forces PMSC employee Augmentation Program (CANCAP)’ (June 2006), iii–vi, available at http://www.forces.gc.ca/crs/pdfs/ncap_e.pdf. 16 Headquartered in Toronto; see www.skylinkaviation.com.

Canada 385 United Nations, the World Food Programme, a range of commercial clients and NATO forces, and as well as the Canadian Forces. ATCO Frontec17 offers construction and management of installations such as military camps and bases, airfields, maintenance of technical equipment and general logistics services. Clients include Canada’s Department of National Defence, the US Air Force, NATO and the United Nations. (iii) Canadian Citizens as PMSC Employees An unknown number of Canadian citizens work or have worked for PMSCs operating abroad. There is no requirement for those individuals to declare that activity or to obtain any specific licence or permit from Canadian authorities. It has been reported that: Records previously released under the Access to Information law have shown that Joint Task Force 218 officers are concerned the unit is losing personnel to private military firms. Former JTF2 have found work as guns-for-hire with companies in Africa and Iraq.19

Canadian nationals have been killed20 in conflict zones and there have been cases of misconduct. For example, the US military ordered a court martial for Alaa ‘Alex’ Mohammad Ali, a PMSC employee holding Iraqi and Canadian citizenship. While working as an Army interpreter in Iraq, he is accused of stabbing another PMSC employee four times on an army base in Iraq.21

B. Existing Regulatory and Legislative Measures (i) Foreign Enlistment Act22 The only Canadian law addressing the issue of private participation of Canadian citizens in conflicts outside Canada is the Foreign Enlistment

17

Headquartered in Calgary; see www.atcofrontec.com. A Canadian Forces Special Operations ‘responsible for a broad range of missions, which could include counter-terrorism operations and armed assistance to other government departments’, Joint Task Force 2, available at http://www.jtf2.forces.gc.ca. 19 D Pugliese, ‘Pay Raises to Keep JTF2 from Joining Merc Firms’, Ottawa Citizen, 26 August 2006; J Loome, ‘Top Canadian Sniper Quits in Frustration, Might Become Mercenary’, Edmonton Sun, 21 August 2005, available at http://www.freerepublic.com/ focus/f-news/1468026/posts. 20 USA Today, ‘Briton, Canadian Killed in Northern Iraq’, 28 March 2004, available at http://www.usatoday.com/news/world/iraq/2004-03-28-iraq_x.htm. 21 ‘Court-martial Ordered for Iraq Civilian Contractor’, Los Angeles Times, 12 May 2008, available at http://articles.latimes.com/2008/may/12/world/fg-contractor12. 22 RS, 1985, c F-28. 18

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Act.23 The Act, adopted in place of a previous British statute,24 was designed to ‘curb participation’ in the Spanish civil war.25 Under this legislation, a Canadian citizen may be prosecuted if he/she ‘voluntarily accepts or agrees to accept any commission or engagement in the armed forces of any foreign state at war with any friendly foreign state’, irrespective of where the accused is present.26 Similarly, it is also an offence to induce ‘any other person to accept or agree to accept any commission or engagement in any such armed forces’.27 As seems to be the case with the UK,28 no prosecution has ever been launched in Canada under this Act.29 The Act, clearly not designed to apply to private companies, has also been criticised as ‘embarrassingly unenforceable’.30 (ii) Export Control of Arms and Certain Technology and Special Economic Measures While Canada does not regulate the export of military and security services, it does control the export of goods that could be associated with those services. The Export and Import Permits Act31 (EIPA) regulates both the type of goods exported and their destination. Provisions under the EIPA regime cover a range of arms and dual-use goods and technologies32 that could be relevant for PMSCs, including munitions, weapons, nuclear materials and other ‘strategic’ goods (for example, global navigation satellite systems receiving equipment, goods related 23

Revised since, notably in 1985 and 1996. The Foreign Enlistment Act 1870 (UK), 33 & 34 Vict, c 90. 25 A Stevens, ‘Preventing and Prosecuting a Canadian Abu Ghraib: Legislating the Canadian Private Military Industry’, MA Research Essay, Carleton University Norman Paterson School of International Affairs (2007), 79. 26 FEA, Art 3. 27 ibid. 28 United Kingdom Foreign and Commonwealth Office, ‘Private Military Companies: Options for Regulation 2001–2’, 40. 29 There was the case of In the Matter of Francis Martin [1864] OJ No 320, where a Canadian citizen was arrested, but not charged, for enlisting individuals in Canada for participation in the American civil war. His arrest was made pursuant to a warrant issued by a mayor under the authority of the Imperial Foreign Enlistment Act 9 Geo II, c 30. He was freed on the grounds that this ‘Statute was confined in its operation to Great Britain and Ireland, that if ever in force in Canada, it has since been repealed by the Imperial Act of 59 Geo, III, c 69, which is not in force in Canada, and that whether in force or not, the warrant under which defendant was in custody, was illegal, because it charged no offence with certainty, because the persons alleged to have been enlisted, were not shewn (sic) to be subjects of Her Majesty and because, for all that appeared, the prisoner had a license from Her Majesty to enlist persons to serve a foreign power.’ 30 Furthermore, this kind of legislation has been considered to be ‘embarrassingly unenforceable’: see SP Mackenzie, ‘The Foreign Enlistment Act and the Spanish Civil War, 1936–1939’ (1999) 10(1) Twentieth Century British History 52; Stevens, above n 25. 31 RS, 1985, c E-19. 32 The EIPA incorporates the provisions of the The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, available at http://www.wassenaar.org. 24

Canada 387 to spacecraft).33 The process to obtain a permit under the EIPA is set out in the Export Permits Regulations,34 with the process being overseen by the Export Control Division and the Department of Foreign Affairs. In cases where exports are prohibited, the country is listed in the Area Control List.35 The Special Economic Measures Act36 (SEMA) can be used both to restrict the export of goods to designated foreign states and to limit a range of other activities, including commercial dealings with those states and/or their nationals who do not ordinarily reside in Canada, the ‘exportation, sale, supply or shipment’ of any goods to those states of their nationals, the landing of Canadian-registered aircraft in those countries and the provision of financial services.37 SEMA may be invoked ‘for the purpose of implementing a decision, resolution or recommendation of an international organisation of states or association of states, of which Canada is a member, that calls on its members to take economic measures against a foreign state’, or in cases where the Canadian government is ‘of the opinion that a grave breach of international peace and security has occurred that has resulted or is likely to result in a serious international crisis’.38 Outright prohibitions on exports are uncommon. Only two countries are currently listed in the Area Control List39: Myanmar (since 1997) and Belarus (since 2006). In each case, violation of human rights by repressive regimes were identified as the primary reason for restricting trade with these countries. In the case of Myanmar, further restrictions were put in place through a specific regulation made under SEMA (Economic Measures (Burma) Regulations)40 aimed at prohibiting or restricting the export of goods and the provision of financial services to that country.41 Although not listed in the Area Control List, sanctions have also been imposed on Zimbabwe, with the Special Economic Measures (Zimbabwe) Regulations42 prohibiting the export of arms and related material to that country, as well as prohibiting the provision of ‘technical or financial 33

SOR/89-202. SOR/97-204. 35 SOR/81-543, Department of Justice Canada, available at http://laws.justice.gc.ca/ en/E-19/SOR-81–543/. 36 1992, c 17. 37 SEMA, s 4(2). 38 SEMA, s 4(1). 39 SOR/81-543, Department of Justice Canada, http://laws.justice.gc.ca/en/E-19/SOR81-543/. 40 SOR/2007-285. 41 The accompanying Special Economic Measures (Burma) Permit Authorization Order (SOR/2007-286) authorises the Minister of Foreign Affairs to ‘issue to any person in Canada or any Canadian outside Canada a permit to carry out a specified activity or transaction, or any class of activity or transaction that is restricted or prohibited pursuant’ to the regulations. 42 SOR/2008-248. 34

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assistance, technical or financial services or brokerage or other services related to the supply, sale, transfer, manufacture or use of arms and related materials’. The United Nations Act43 is another statute which could regulate the export of military and security services by Canadian PMSC to certain countries. This act enables the Canada to make regulations to give effect to its obligations where the Security Council acts under Chapter VII of the UN Charter. Those regulations generally apply to Canadian individuals and corporations inside or outside Canada, and often prohibit the supply of arms and military technical assistance to particular countries or organisations.44 (iii) Increase Financial Benefits to Curb Appeal of Private Sector to Canadian Forces Members Although there is no regulation of Canadian citizens working for either Canadian or foreign PMSCs, the departure of Canadian special forces to the private sector has been noted. In 2005, the Canadian Forces increased financial benefits for members of the special forces known as JTF 2. The maximum allowances, in addition to a member’s regular pay, amount to over $27,000 per year45 for the most experienced ‘special operations assaulters’.46 Officially, the allowance ‘compensates for hardships (eg conditions at work, conditions while off-duty, health service support, 43

RS, 1985, c U-2. For example, the United Nations Al-Qaida and Taliban Regulations (SOR/99-444), inter alia, prevent the supply, sale and transfer of arms and technical assistance to the Taliban, Osama bin Laden and his associates, and the members of the Al-Qaida organisation. Similarly, regulations concerning Côte d’Ivoire (the United Nations Côte d’Ivoire Regulations, SOR/2005-127), the Democratic Republic of the Congo (United Nations Democratic Republic of the Congo Regulations, SOR/2004-222, and Regulations Amending the United Nations Democratic Republic of the Congo Regulations, SOR/2005-306), Liberia (United Nations Liberia Regulations, SOR/2001-261, Regulations Amending the United Nations Liberia Regulations, SOR 2004-153 and Regulations Amending the United Nations Liberia Regulations and the Regulations Implementing the United Nations Resolution on Liberia, SOR/2009-23), Sudan (United Nations Sudan Regulations, SOR/2004-197 and Regulations Amending the United Nations Sudan Regulations, SOR 2005-122) and Lebanon (Regulations Implementing the United Nations Resolution on Lebanon, SOR/2007-204 and Regulations Amending the United Nations Liberia Regulations and the Regulations Implementing the United Nations Resolution on Lebanon, SOR/2009-23) all include provisions prohibiting the export of arms and related material to any person in those countries and the provision of technical assistance related to the provision, manufacture, maintenance or use of arms and related material. In the cases of the Democratic Republic of the Congo and Côte d’Ivoire, the regulations include a prohibition of the provision to any person of ‘technical assistance related to military activities’. For the complete list of countries subject to sanctions by Canada, see Foreign Affairs and International Trade Canada at http:// www.international.gc.ca/sanctions/sema-lmes.aspx?lang=eng. 45 Canadian Forces’ Compensation and Benefits Instructions 205.385—Joint Task Force Two Allowance, available at http://www.dnd.ca/dgcb/cbi/pdf/CBI_205_Sec_2.pdf. 46 Those members specifically trained to conduct: ‘a wide variety of Special Operations and counter-terrorism tasks such as hostage rescue operations, special operations patrols, 44

Canada 389 home communications and stress appraisal) and risks (eg loss of life) associated with JTF2 employment’.47 Implicitly, the increase in financial benefits was aimed at improving retention of skilled members within the Forces.48 The lure of the private sector was specifically noted by the chairman of the Senate’s national security and defence committee as one of the factors leading to early retirement.49 (iv) Criminal Law

(a) Criminal Law and Corporations Canadian criminal law is applicable to both natural and legal persons. The code specifically employs the terms ‘everyone’, ‘person’, ‘owner’ and similar expressions to describe those liable for criminal offences.50 Corporations are included within the definition of ‘person’ within the Criminal Code of Canada51 and can be prosecuted for criminal misconduct. Corporate offences that require the prosecution to prove fault—other than negligence52—use the identity doctrine to determine if such a fault has occurred. This doctrine53 merges the individuals that were in charge (eg board of directors, the managing director, the manager or anyone else given the governing executive authority of the corporation) with the conduct attributed to the corporation. The directing mind must act within the sector (functional, geographic or even the entire company) of the corporate operation assigned to him/her. Liability can arise regardless of a formal delegation, awareness of the board of directors or even express prohibition. The limits on this doctrine, however, are clear: the identification doctrine only operates where the Crown demonstrates that the action taken by the directing mind (a) was within the field of operation surveillance, offensive actions, and close personal protection’, Joint Task Force 2, http:// www.jtf2.forces.gc.ca. 47 Department of National Defence, Backgrounder, BG–06.006, ‘Joint Task Force 2 (JTF2)—Allowance Policy Review’,13 March 2006, available at http://www.forces.gc.ca/ site/news-nouvelles/view-news-afficher-nouvelles-eng.asp?id=1872. 48 ibid, ‘A key difference between the military and other professional organizations, however, is that the military cannot go outside to find suitably qualified candidates for positions above the entry level . . . The unique needs of the military imply that pay and other benefits should be designed and applied in a manner that encourages leadership, loyalty and commitment, given career horizons that can span 35 years. They must also support, in a cost-effective way, the Forces’ goals for attracting, retaining and motivating the numbers and kinds of people required.’ 49 ibid. ‘Senator Colin Kenn . . . said the allowance improvements are directly related to the fact that JTF2 has been losing highly skilled personnel to the private sector.’ 50 Section 2. 51 RS 1985, c-46. 52 Section 22(2). 53 Established in R v Canadian Dredge & Dock Co [1985] 1 SCR 662 (SCC)

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assigned to him/her; (b) was not totally in fraud of the corporation; and (c) was by design or result partly for the benefit of the company.54

A corporation can be found guilty of offences based on negligence, including the offence of criminal negligence causing death and causing harm.55 The corporation can be found guilty if a directing mind had been a party to the offence and the prosecution shows that the directing mind departs ‘markedly from the standard of care that, in the circumstances could reasonably be expected to prevent a representative of the corporation from being a party to the offence’.56 The Criminal Code provides for various forms of accomplice liability, including aiding and abetting and conspiracy. ‘Aiding’ means ‘to assist or help the actor’.57 According to sub-section 21.1 of the Criminal Code, ‘every one is a party to an offense who . . . (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing’. Abetting means ‘to encourage or set on’, making an abettor ‘an instigator or setter on, one who promotes or procures a crime to be committed’.58 The offence has both an actus reus and a mens rea element.59 The Criminal Code also criminalises certain acts of conspiracy. For example, it is an offence to conspire ‘with anyone to commit murder or to cause another person to be murdered, whether in Canada or not . . .’.60 The nucleus of conspiracy is an ‘agreement to perform an illegal act or to achieve a result by illegal means’.61 Conspiracy occurs when there is ‘an intention to agree, the completion of an agreement, and a common design’.62 (b) Sources of Criminal Law The Criminal Code of Canada. The basis for jurisdiction in the Criminal Code is the principle of territorial jurisdiction.63 According to the Criminal Code, ‘no person shall be convicted . . . of an offence committed outside Canada’. Thus the act is not applicable to acts or omissions committed entirely outside Canadian borders. Acts that occur outside Canadian borders but have a ‘real and 54 Fafo and International Peace Academy, ‘Canada—Survey Questions & Responses, A Comparative Survey of Private Sector Liability for Grave Violations of International Law in National Jurisdictions’ (2004) 2, available at http://www.fafo.no/liabilities/Canada%20 survey%20standardized%20Nov%202004.pdf. 55 Section 220 and s 221. 56 Section 22 (1). 57 R v Greyeyes [1997] 2 SCR 825, 837 (SCC), per Cory J. 58 See, eg R v Salajko [1970] 1 OR 824, 826 (Ont CA). 59 Fafo and International Peace Academy, above n 54, 3. 60 Section 465(1)(a). 61 R v Douglas [1991] 1 SCR 301, 316 (SCC). 62 United States v Dynar [1997] 2 SCR 462, 500 (SCC). 63 Section 6(2).

Canada 391 substantial link’ to the Canadian jurisdiction may be prosecuted domestically.64 Though the precise meaning has not been clarified in a court of law, ‘one reasonable interpretation is that there is a continuity of the acts that constitute the crime from one state to Canada . . . or that there is harm in Canada’.65 For example, if the management of a PMSC headquartered in Canada endorsed an aggressive approach to providing protection for persons under its care and this resulted in the unwarranted killing of individuals in the theatre of operations, it is conceivable that criminal prosecution could follow in Canada. There are a limited but growing number of exceptions in the Criminal Code to the general rule of territorial jurisdiction. The nationality principle establishes jurisdiction by virtue of the perpetrator or victim being Canadian and is used to combat crimes of international concern, including treason,66 international terrorist offences,67 crimes against internationally protected persons and UN personnel,68 and certain sexual offences taking place outside Canada.69 Should acts or omissions be directed against internationally protected persons representing Canada or members of their family, or should Canadians be hijacked abroad, Canada asserts jurisdiction by virtue of the victim being Canadian.70 Crimes against Humanity and War Crimes Act (CAHWCA).71 This act provides for the prosecution of any person present in Canada for any codified offence—genocide, crimes against humanity, war crimes, and breach of responsibility by military commanders and civilian superiors— regardless of where that offence occurred.72 The act provides Canada with an expanded extraterritorial jurisdiction over person to have committed one of the mentioned acts if (a) at the time the offence is alleged to have been committed, (i) the person was a Canadian citizen or was employed by Canada in a civilian or military capacity, (ii) the person was a citizen of a state that was engaged in an armed conflict against Canada, or was employed in a civilian or military capacity by such a state,(iii) the victim of the alleged offence was a Canadian citizen, or (iv) the victim of the alleged offence was a citizen of a state that was allied with Canada in an armed conflict; or

64

See, eg R v Libman [1985] 2 SCR 178 (SCC). Fafo and International Peace Academy, supra note 55, 6. 66 Section 46(3). 67 Section 7(3.75) on ‘terrorist activity’ and s 83.92 on ‘financing terrorism’. 68 Section 7(3) and (3.71). 69 Section 7(4.1). 70 Section 7(3)(d)(i) and (iii), s 7(3.1)(e). 71 2000, c 24, Department of Justice, available at http://laws.justice.gc.ca/en/C-45.9/. 72 Department of Justice Canada, Canada’s Crimes Against Humanity and War Crimes Program, available at http://www.justice.gc.ca/eng/pi/wc-cg/rlf-rcl.html. 65

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(b) after the time the offence is alleged to have been committed, the person is present in Canada.73

According to the Act, every ‘person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an indictable offence’.74 Also according to the Act, ‘Unless otherwise provided, words and expressions used in this Act have the same meaning as in the Criminal Code’.75 The definition of person in the Criminal Code is therefore applicable and corporations could be held liable under the CAHWCA. Procedurally, it is important to note that under the CAHWCA according to section 9(3) no ‘proceedings for an offence under any of sections 4 to 7 of this Act . . . may be commenced without the personal consent in writing of the Attorney General’. Sections 4–7 list, amongst other things, the crimes of genocide, crimes against humanity and war crimes. Thus, although the scope of the Act is broad, its practical application is likely to be much more limited. (iv) Civil Law

(a) General Remarks on Civil Liability Canada is a federal jurisdiction with 10 provinces: nine are common law jurisdictions, while Quebec—due to its French roots and legal traditions—is a civil law jurisdiction. There is no explicit provision in Canadian law for individuals suffering harm outside of Canada to seek legal redress through the Canadian courts.76 The parliamentary Standing Committee on Foreign Affairs and International Trade of the House of Commons highlighted this gap in considering potential misconduct by Canadian resources companies operating abroad when it stated ‘that Canada does not yet have laws to ensure that the activities of Canadian mining companies in developing

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Section 8. Sections 4(1.1) and 6(1.1). 75 Section 2(2). 76 G Webber, ‘Canada’ in Obstacles to Justice and Redress for Victims of Corporate Human Rights Abuse—Comparative Submission Prepared for John Ruggie UN Secretary-General’s Special Representative on Business and Human Rights (Oxford, Oxford Pro Bono Publico, 2008) 35, 36, available at http://www.law.ox.ac.uk/opbp; C Forcese, ‘Memorandum: Response to PDAC Opinion on Extraterritorial Regulation’, memorandum prepared for the Canadian Network on Corporate Accountability in the National Roundtables on Corporate Social Responsibility (2006), 2. 74

Canada 393 countries conform to human rights standards, including the rights of workers and of indigenous peoples’.77 (b) Jurisdiction The Supreme Court of Canada has defined a civil standard of ‘real and substantial connection’ to establish jurisdiction in a Canadian court.78 This connection may be established ‘between the subject-matter of the action and the territory where the action is brought’, ‘between the jurisdiction and the wrongdoing’, ‘between the damages suffered and the jurisdiction’, ‘between the defendant and the forum province’, ‘with the transaction or the parties’ and ‘with the action’.79 The phrasing of the civil law test is similar to the criminal law language; however, the civil law test of ‘real and substantial’ is less well developed and defined. It arises as a concern most frequently when the defendant is serve ex juris, or outside of the jurisdiction.80 Two Canadian provinces, Ontario and Quebec, have established rules that provide for jurisdiction in extracontractual obligations (civil law) or tort (common law). According to the governing rule in Quebec,81 jurisdiction is grounded where the defendant has his domicile or his residence in Quebec; the defendant is a legal person, is not domiciled in Quebec but has an establishment in Quebec, and the dispute relates to its activities in Quebec; a fault was committed in Quebec; damage was suffered in Quebec; an injurious act occurred in Quebec; or the defendant submits to its jurisdiction.82 The Supreme Court of Canada accepted the relevant provisions of the Civil Code of Quebec (CCQ) as consistent with the requirement of a real and substantial connection.83 In Ontario, rule 17.02 of the Ontario Rules of Civil Procedure provides for service of a defendant outside of the province of Ontario on the basis, inter alia, (i) of a tort committed in Ontario and (ii) of damage sustained in Ontario arising from a tort wherever committed. The Ontario Court of Appeal has found that service is only a preliminary ground for jurisdiction, and does not ‘by itself confer jurisdiction’ on an Ontario court.84

77 Canada, Standing Committee on Foreign Affairs and International Trade, ‘Mining in Developing Countries and Corporate Social Responsibility’, 38th Parl 1st sess, 14th Report (22 June 2005), 4, House of Commons, available at http://www2.parl.gc.ca/committeebusiness/ReportsResponses.aspx?Cmte=FAAE&Language=E&Mode=1&Parl=38&Ses=1. 78 Tolofson v Jensen 146 [1994] 3 SCR 1022, 1049, 77 OAC 81, 108. 79 Morguard Investments v De Savoye [1990] 3 SCR 1077. 80 Forcese, above n 77, para 95. 81 Civil Code of Quebec (CCQ), Art 3148. 82 Webber, above n 76, 38. 83 Spar Aerospace Ltd v American Mobile Satellite [2002] 4 SCR 205. 84 Muscutt v Courcelles (2002) 60 OR (3d) 320 (Ont CA).

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In addition to service, a court must establish that it has a ‘real and substantial connection’ to the dispute. With regard to contractual disputes, on the other hand, the connections between a contract and a forum are primarily legal, not territorial. The law of the provinces of Quebec and Ontario provide that a court’s jurisdiction may be established if one of the obligations of the contract must be performed in the jurisdiction of the court.85 Quebec and Ontario law provide for exceptional grounds of jurisdiction. Under Quebec law, even if there are no grounds for jurisdiction of a Quebec court, it may hear the dispute if there is a ‘sufficient connection with Quebec’ and where ‘proceedings cannot possibly be instituted outside Québec or where the institution of such proceedings outside Québec cannot reasonably be required’.86 In Ontario, should a service of a defendant outside Ontario not satisfy the established statutory ground, leave may be granted by the court, relying on the same grounds as are relevant under Quebec law.87 (c) Piercing the Corporate Veil Unless a corporate subsidiary is under the complete control of its parent corporation and is nothing more than a conduit used by that parent corporation to avoid liability, such subsidiary, even when wholly owned, will not be an alter ego of its parent company.88 However, Quebec and Ontario law provide for rules to pierce the corporate veil. For example, in Quebec in no case may ‘a legal person set up juridical personality against a person in good faith if it is set up to dissemble fraud, abuse of right, or contravention of a rule of public order’.89 (d) Choice of Law Issues The choice of law with regards to tort (common law) and extracontractual obligations (civil law) is generally determined by the law of the country where the injurious act occurred.90 La Forest J, writing for a majority of the Supreme Court of Canada, revisited the traditional common law rules for choice of law and reaffirmed the lex loci delicti as the applicable principle in Tolofson v Jensen.91 85

See CCQ, Art 3148 and Ontario Rules of Court, rule 17.02. CCQ, Art 3136. 87 Ontario Rules of Civil Procedure, rule 17.03. 88 Transamerica Life Insurance Company of Canada v Canada Life Assurance Company (1995) 46 CPC (3d) 110 (Ontario Court General Division). 89 CCQ, Art 317. 90 CCQ, Art 3126. 91 Tolofson v Jensen, above n 78. 86

Canada 395 Contractual matters will be governed by the law of the country with which the contract has the ‘closest connection’, unless there is a valid choice of law clause.92 According to the Supreme Court of Canada, further factors determining the connection are the national character of a corporation and the place where its principal place of business is situated.93 (e) Forum Non Conveniens Even where it is legally possible to assert jurisdiction, provinces may decline to do so on the basis of forum non conveniens. The Supreme Court of Canada summarised the test as follows: the court must determine whether there is another forum that is clearly more appropriate . . . [W]here there is no one forum that is the most appropriate, the domestic forum wins out by default and refuses a stay, provided it is an appropriate forum.94

The test was applied in the case Recherches Internationales Québec v Cambior.95 A Quebec-based mining firm, Cambior, was the single largest shareholder of a Guyanese firm in Guyana to which a toxic tailings spill was attributed. The plaintiffs in the case were a class of 23,000 Guyanese said to have been affected by the spill. Relying on the provisions of the CCQ,96 the Superior Court found that the Quebec domicile of Cambior Inc was sufficient to establish the court’s jurisdiction. The court also concluded that the courts of Guyana were competent to hear the case and thus declined to exercise jurisdiction on grounds of forum non conveniens because neither the victims nor their action has any real connection with Quebec. The mine is located in Guyana. That is where the spill occurred. That is where the victims reside. That is where they suffered damage. But that is not all. The law which will determine the rights and obligations of the victims and of Cambior is the law of Guyana. And the elements of proof upon which a court will base its judgment are located primarily in Guyana. This includes witnesses to the disaster and the losses which the victims suffered. It also includes the voluminous documentary evidence relevant to the spill and its consequences.97

The court noted that ‘Guyana’s judicial system would provide the victims 92

Imperial Live Assurance v Colmenares [1967] SCR 442; CCQ, Art 3112. Imperial Live Assurance, ibid, 443. 94 Amchem Products Inc v British Columbia Worker’s Compensation Board [1993] 1 SCR 897, 931, 102 DLR (4th) 96, 119. 95 Recherches Internationales Québec v Cambior 164 [1998] QJ No 2554 (Que SC) (QL) (14 August 1998), Montreal 500-06-000034-971 JEL/1998-0728. 96 Arts 3134 and 3138. 97 Recherches Internationales Québec v Cambior, above n 95, 9. 93

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with a fair and impartial hearing’, rejecting the claim that ‘the administration of justice is in such a state of disarray that it would constitute an injustice to the victims to have their case litigated in Guyana’.98 Nevertheless, Forcese concluded that while the hurdles are not insubstantial, there is reason to conclude that foreign plaintiffs suing a Canadian corporation, served in juris in Canada for abuses stemming from overseas militarised commerce might well succeed in persuading a Canadian court that it has jurisdiction simpliciter and, owing to circumstances overseas inhospitable to a fair trial, that the forum non conveniens analysis favours Canada.99

I I I . C ANAD A AS A C ON TRAC TIN G STATE

A. Introduction Both the Department of Foreign Affairs and International Trade (DFAIT) and the Canadian Forces (CF) contract PMSCs for the provision of services in support of their operations outside Canada. (i) Department of Foreign Affairs and International Trade Security at a number of specific Canadian foreign missions (Embassies and High Commissions) is in part provided by the Canadian Forces Military Police. Currently, the Military Police Security Service (formerly known as Military Security Guards Unit) employs over 100 personnel at the unit’s headquarters and in 47 Canadian Embassies, High Commissions or Consulates around the world.100 The Department of Foreign Affairs devotes additional resources to contract for local security services where required. According to the 2007–08 Public Accounts of Canada, DFAIT spent approximately $35 million on protection services, including approximately $15.6 million to pay over 40 private businesses for services outside Canada.101 This is comparable to the expenses of 2006–07.102 In most cases the hiring 98 ibid, 12; for more details on the question of Forum Non Conveniens in this case, see Forcese, above n 77, paras 97–108. 99 Forcese, ibid, para 97 and, for more details on forum non conveniens, para 109. 100 Department of National Defence, ‘The Canadian Forces Military Police Group’, Backgrounder, BG-09.011 (17 March 2009), available at http://www.forces.gc.ca/site/ news-nouvelles/view-news-afficher-nouvelles-eng.asp?id=2921; Canadian Forces Provost Marshall, Annual Report 2006–07, available at http://www.vcds.forces.gc.ca/cfpm-gpfc/ apm-agp/ar-ra/2006-2007/rep-rap-2006-2007-eng.asp#pcoopc. 101 Treasury Board Secretariat, available at http://www.tpsgc-pwgsc.gc.ca/recgen/ pdf/41.pdf. 102 It was reported that for the period of 2006–07 the budget for protection services was $29.9 million, out of which $15 million went to private security contractors. See A

Canada 397 of such security services appears to be routine, though contracting Saladin to provide security for the Embassy in Kabul has attracted some attention.103 The selection, hiring and monitoring of companies providing civilian security guards to protect diplomatic and consular facilities and personnel remains the responsibility of each individual mission. PMSCs hired by DFAIT are companies operating under the laws of the host nation and remain entirely subject to their laws. (ii) The Canadian Forces The CF are increasingly relying on private contractors to perform functions traditionally undertaken by military personnel.104 Among the early shifts in this direction was the Contractor Support Project, which was initiated in 2000 to provide logistical support for the Canadian Contingent Stabilization Force in Bosnia.105 This programme was replaced by the Canadian Forces Contractor Augmentation Program (CANCAP), formally implemented in 2002, which provides a wide range of support services.106 The CANCAP contract was initially awarded to ATCO Frontec in Bosnia and eventually transferred to the Canadian company SNC-Lavalin PAE Inc.107 The programme currently provides support to the Canadian forces in Afghanistan.108

Castonguay, ‘Ottawa emploie des mercenaires en Afghanistan’, Le Devoir, 24 October 2007, available at http://www.ledevoir.com/2007/10/24/161709.html#. 103 See Castonguay, ibid; B Perrin, ‘Guns for Hire—With Canadian Taxpayer Dollars’ (2008) 6 Human Security Bulletin 5. 104 D Perry, ‘The Privatization of the Canadian Military: Afghanistan, Canada First and Beyond’ (2009) 64 International Journal 3. 105 Department of National Defence, ‘Canadian Forces Contractor Augmentation Program’, Backgrounder, BG-04.010 (14 July 2004), available at http://www.forces.gc.ca/ site/news-nouvelles/view-news-afficher-nouvelles-eng.asp?id=1409. 106 Ibid. Services provided by CANCAP can include any or all of the following: administration and management, food services, material management and distribution, communication and information systems, land equipment maintenance, health services, transportation, accommodation and support, construction engineering services, power supply and distribution, water supply and distribution, waste management, facilities operations and management, roads and grounds, fire services, geomatics support, environmental management and ammunition support. 107 Department of National Defence, ‘Transfer of Contracted Support in Bosnia-Herzegovina to Occur this September’, News Release (28 August 2003), available at http://www. forces.gc.ca/site/news-nouvelles/view-news-afficher-nouvelles-eng.asp?id=1179. 108 S Gifford, ‘The Armed Private Military Company and the Canadian Forces: The Next Step in Contractor Support?’ (2008) 11 Canadian Army Journal 78, 88, ‘A partnering of firms SNC Lavalin and PAE . . . supported . . . the deployment of the CF into Kabul, Afghanistan during OPERATION ATHENA. The shift of the CF to Kandahar in 2005 saw the contingent relying on in-place US contracted support because of the security situation. This has changed with the US drawdown in Kandahar, and CANCAP has been employed to support the CF again, although the security situation could hardly be described as a low-risk theatre.’ US contractors have also provided support to the CF in Afghanistan.

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Additionally, since approximately 2005 the CF have begun using contractors for the provision of security services. Reportedly Private-security contractors employed by the military are primarily used for ‘perimeter security’, not to conduct ‘offensive operations’. An Afghan company detailed to the Provincial Reconstruction Team site in Kandahar City secures the perimeter, protects convoys of Canadian personnel and provides a ‘security cordon’ when an incident occurs, such as the explosion of a roadside bomb.109

The costs for protection services for the CF for operations abroad are not captured under the post ‘protection services’ in the public accounts for the Department of National Defence as these reflect only costs for security in Canada and the US. However, in keeping with the Treasury Board’s Contracting Policy,110 the CF must publish the security contracts into which it has entered for over $10,000. Although the names of particular contractors were identified in the past,111 the CF have now changed their practice and do not disclose such information.112 Based on information previously disclosed, the CF has contracted for security services with local Afghan as well as foreign service providers, including Blue Hackle and Hart Security.113 In 2008, the government of Canada determined that the mission in Afghanistan required medium-lift helicopter capacity and advanced unmanned aerial vehicles (UAVs).114 The CF therefore entered into a $36 million one-year contract with the Toronto-based Sky Link for 109 A Mayeda and M Blanchfield, ‘Security Worker Had Apartheid Past; Firm Protects Canadian Forces in Afghanistan’, National Post, 2 December 2007, 1, available at http:// www.nationalpost.com/news/world/afghanistan/story.html?id=139690. 110 See http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/Contracting/siglist-eng.asp. 111 A Mayeda and M Blanchfield, ‘Military Hires Former Afghan Fighters as Security Guards’, CanWest News Services, 22 November 2007, available at http://www2.canada. com/topics/news/features/businessofwar/story.html?id=c6581dc2-9afd-4a03-8a05b5dec6d56c81&k=2940. 112 ibid. 113 ibid: ‘In January, the Defence Department awarded a $168,150 contract to a vendor identified as “General Gulalai” to provide security guards at an undisclosed forward operating base. Government records obtained by CanWest News Service under Access to Information also reveal the use of private security services in Afghanistan’s urban centres. For instance, an undisclosed contractor was paid $236,926.92 to protect Canada’s Strategic Advisory Team, which supports the Karzai government in Kabul. The Defence Department also paid an unnamed contractor $25,632 to provide protection and ‘defensive supplies’ for Afghan New Year’s celebrations. Another former warlord, Col. Haji Toorjan, has been hired to provide security at Camp Nathan Smith, home of the provincial reconstruction team in Kandahar City. Toorjan’s militia force of roughly 60 Afghan fighters has guarded the base and even guided Canadian soldiers on patrols. Toorjan is believed to be allied with former Kandahar governor Gul Agha Sherzai, according to Nasrullah Duranni, regional manager of the Afghanistan Investment Support Agency. However, no vendor by the name of “Toorjan” is found in publicly available contract records.’ 114 Public Works and Government Services Canada, ‘Government of Canada Invests in Equipment for the Canadian Forces’, Press Release (7 August 2008), available at http:// www.tpsgc-pwgsc.gc.ca/medias-media/af-fa/2008-08-07-eng.html.

Canada 399 chartered commercial helicopters (Russian-made Mi-8) for use in Afghanistan ‘for resupply missions and potentially for specific troop transport’. Flights under this contract began in November of 2008.115 The Canadian government has also leased UAV services for an estimated $95 million for two years from the Canadian company MacDonald Dettwiler and Associates. That contract was awarded on a competitive procurement basis through Project NOCTUA.116 The UAVs are used to provide ‘critically important intelligence, surveillance and reconnaissance information directly to commanders and front line soldiers in real time’.117 The contract includes maintenance services in theatre.118 Flights began on 1 January 2009.119 The Canadian government also leases smaller tactical UAVs from Boeing for use in Afghanistan.120

B. Accountability (i) Canadian Forces Approach to Contracting with PMSC As a general rule, the sole fact of entering into a contractual relation with PMSCs would not make the actions of those PMSCs attributable to the state. Nevertheless, the actions of PMSCs hired by Canada may in some circumstances engage its responsibility under international law. Subject to the application of the principle of state immunity, Canada could in some circumstances conceivably also be liable for those actions in terms of civil liability. While these responsibilities and liabilities could be engaged through any contracting of the private sector, the risks are obviously much higher for businesses linked to combat operations or engaged in the potential use of armed force. The CF’s approach to dealing with its private contractors has been ad hoc and focused on practical considerations such as pre-deployment training, medical coverage and discipline which are specified in the contract. These contractual practices have led to the development of a 115 Department of National Defence, ‘Strengthening the Canadian Forces and Canadian Sovereignty’, Backgrounder, BG-08.016 (7 August 2008), available at http://www.forces. gc.ca/site/news-nouvelles/view-news-afficher-nouvelles-eng.asp?id=2719; ‘Canadians to Use Civilian Helicopters in Afghanistan, The Canadian Press, 17 November 2008, available at http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20081117/afghan_ choppers_081117?hub=Canada. 116 Public Works and Government Services Canada, above n 114. 117 MacDonald, Dettwiler and Associates Ltd, ‘MDA’s Surveillance Service Operation Begins in Afghanistan’, Press Release (26 January 2009), available at http://www.mdacorporation.com/corporate/news/. 118 Business Access Canada, Letter of interest, available at http://www.merx.com/ English/Supplier_Menu.Asp?WCE=Show&TAB=1&PORTAL=MERX&State=7&id=PW%24%24BB-213-16693&FED_ONLY=0&hcode=D8aKKgzlEEi4sBHoJQeJQQ%3D%3D. 119 MacDonald, Dettwiler and Associates Ltd, above n 117. 120 Department of National Defence, above n 115.

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draft directive concerning contractors employed by the CF in operations outside Canada. The language used in that draft suggests that it is applicable to contractors deploying with the CF (ie contractors employed under CANCAP) rather than to local contractors or contractors coming from a third location. The draft is not tailored to address contractors involved in services beyond logistical support, such as the provision of security for military facilities in combat zones or the performance of surveillance and reconnaissance in direct support to military operations. An overarching directive to govern the selection, use, monitoring and supervision of contractors providing security services is currently under development. In the meantime, some common standards are already being applied. For example, contracts with security providers in Afghanistan contain clauses limiting the use of force to self-defence in accordance with generally accepted international standards,121 providing that security personnel will wear distinctive uniforms and establishing the authority of the CF to inspect weapons to ensure compliance with Canada’s international obligations. Contracts clearly state that the contractors will be subject to the laws of Afghanistan. Furthermore, CF contracts with security providers currently include provisions concerning their responsibility for indemnifying individuals and the possibility for the CF to withhold sums owed to the contractor to effect payment directly to wronged party in cases where the contractor does not comply with its obligation to compensate them. The contracting process begins with a statement of work and a detailed operational analysis. Companies which submit bids must have a valid licence issued by the Afghan Ministry of the Interior and must have been vetted by Canadian military intelligence. Bids are assessed and scored by three designated CF members against criteria including operational and legal considerations. The final scores are provided to a management office which issues the contract to the successful company. The work of the security providers is conducted under the supervision of on-site CF personnel responsible to the officer commanding the facility where the services are performed. It is the CF’s approach that any allegation of wrongdoing involving private contractors providing such services to the CF would be investigated and referred to the appropriate authorities for action.

121 For example, the UN Office of the High Commissioner for Human Rights, ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’, UN Doc A/ Conf 144/28/Rev 1, 112 (1990), available at http://www.unhchr.ch/html/menu3/b/h_ comp43.htm.

Canada 401 (ii) Status of Forces Agreements and Immunities With the exception of international armed conflict or military operations sanctioned by the UN Security Council, the deployment of military forces in another country requires that country’s consent. When a state consents to having foreign troops on its soil, that presence is normally authorised though a status of forces agreement (SOFA), which would typically address issues such as entry and exit procedures, criminal and civil jurisdiction, claims procedures, carrying of weapons, use of force, wearing of uniforms, taxes and duties, driving licences, vehicle registration, local procurement, postal services and communication. Absent internationally recognised immunities or any agreement to the contrary, individuals present in a country remains subject to that country’s national law. Whenever the CF deploys, Canada always considers the issue of criminal and civil jurisdiction. In order to avoid undue interference with its operations, the CF will normally endeavour to retain primary criminal jurisdiction over its personnel. This can be achieved either through direct negotiations with the host state122 or in the context of a collective agreement, applicable to multiple nations operating in a given country, such as the SOFA for troops present in the former Yugoslavia123 and those participating in the International Security Assistance Force in Afghanistan.124 When a host nation waives its jurisdiction over foreign nationals, it is usually done with the understanding that there would be no vacuum leading to immunity, since the sending state would exercise that jurisdiction. Those agreements concerning jurisdiction could extend to civilians working for the military forces of the sending state, including contractors, but not normally to nationals of the host state.

122 For example, the Technical Arrangements Between the Government of Canada and the Government of the Islamic Republic of Afghanistan, 18 December 2005 and Arrangements Regarding the Status of Canadian Personnel in Afghanistan, 18 December 2005. Cited in Amnesty International Canada v Canada (Attorney General), [2008] FC 336, para 47. 123 The agreements contained in Appendix B to Annex 1A of the General Framework Agreement for Peace in Bosnia and Herzegovina, 21 November 1995: Agreement Between the Republic of Bosnia and Herzegovina and the North Atlantic Treaty Organisation (NATO) Concerning the Status of NATO and its Personnel, 21 & 23 November 1995; Agreement Between the Republic of Croatia and the North Atlantic Treaty Organisation (NATO) Concerning the Status of NATO and its Personnel Agreement Between the Federal Republic of Yugoslavia and the North Atlantic Treaty Organisation (NATO) Concerning Transit Arrangements for Peace Plan Operations, 21 & 23 November 1995, The Avalon Project (http://avalon.law.yale.edu/20th_century/day09.asp). 124 Military Technical Agreement Between the International Security Assistance Force (ISAF) and the Interim Administration of Afghanistan (‘Interim Administration’), 4 January 2001, available at http://www.operations.mod.uk/isafmta.pdf.

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(iii) The Code of Service Discipline In some circumstances, PMSCs providing services to the CF could be provided with immunity from local laws through a SOFA. In most cases, however, these individuals would be subject to Canadian criminal jurisdiction for their actions through the military Code of Service Discipline (CSD), which is the condition under which immunity would normally be granted. The CSD is part of the National Defense Act125 (NDA). According to section 60 of the NDA: ‘a person, not otherwise subject to the Code of Service Discipline, who accompanies any unit or other element of the Canadian Forces that is on service or active service in any place’ is subject to the CSD. For the purpose of this provision, someone accompanies the Canadian Forces when if or she: (a) participates with that unit or other element in the carrying out of any of its movements, manoeuvres, duties in aid of the civil power, duties in a disaster or warlike operations; (b) is accommodated or provided with rations at the person’s own expense or otherwise by that unit or other element in any country or at any place designated by the Governor in Council; . . . (d) is embarked on a vessel or aircraft of that unit or other element.126

Individuals not otherwise subject to the CSD could also be subject to it ‘while serving with the Canadian Forces under an engagement with the Minister whereby the person agreed to be subject to that Code’.127 According to those provisions of the NDA, jurisdiction of the CSD over individuals is independent of their nationality. Although the CSD is not explicitly limited to physical persons, it would seem unlikely that these provisions would be applicable to companies. An individual subject to the CSD could be tried by court martial either by judge alone in a standing court martial128 or before a panel of five individuals in a general court martial.129 Under the Canadian military justice system, decisions of a court martial can be appealed to the Court Martial Appeal Court (CMAC), a court composed of a mix of civilian judges from the Federal Court and the Federal Court of Appeal, and judges of a superior court of criminal jurisdiction.130 The decisions of the CMAC are subject to appeal to the Supreme Court of Canada.131 The CSD includes a series of ‘typically’ military offences,132 including 125 126 127 128 129 130 131 132

NDA, NDA, NDA, NDA, NDA, NDA, NDA, NDA,

s 60(1)(f). s 61(1). s 60(1)(j). s 174. s 167(1). s 234. s 245. ss 73–129.

Canada 403 mutiny,133 disobedience to a lawful command,134 absence without leave135 and offences having a civilian equivalent, including detaining someone unnecessarily,136 stealing137 and failing to attend as a witness before a tribunal.138 Additionally, the CSD incorporates all offences punishable under Canadian federal statute, including the Criminal Code and the CAHWCA.139 Furthermore, the SCD provides that the laws of a foreign country where individuals are serving may also be enforceable through Canadian military courts.140 Since 1974,141 civilians tried by court martial have been either former military members charged with offences alleged to have been committed while they were in the service142 or dependants of CF members accompanying them on foreign postings.143 In the latter cases, the charges have typically been offences under ‘civilian’ law, such as driving while impaired by alcohol. No civilian contractors have been tried by service tribunals for offences committed in an operational theatre. The NDA does not specifically limit the applicability of certain offences to civilians subject to the CSD, but the question of whether all offences included in the CSD would apply is not settled. For example, while it is clear that civilians could logically not commit offences such as abusing their subordinates or fraudulently enrolling, they could potentially be found guilty of doing violence to a person bringing material to the CF144 or spying for the enemy.145 The NDA suggests that some typically military offences, such as improperly destroying or damaging any property without orders from the person’s superior officer146 and

133

NDA, ss 79–81. NDA, s 83. 135 NDA, s 90. 136 NDA, s 99. 137 NDA, s 114. 138 NDA, s 118(2)(a). 139 NDA, s 130(1) provides that: ‘An act or omission (a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or (b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament, is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2).’ 140 NDA, s 132(1) provides that: ‘An act or omission that takes place outside Canada and would, under the law applicable in the place where the act or omission occurred, be an offence if committed by a person subject to that law is an offence under this Division, and every person who is found guilty thereof is liable to suffer punishment as provided in subsection (2).’ 141 Database of the Directorate of Military Justice, Policy and Research within the Office of the Judge Advocate General. 142 NDA, s 60(2). 143 NDA, s 61(1)(c). 144 NDA, s 77(a). 145 NDA, s 78. 146 NDA, s 77(d). 134

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insubordinate behaviour,147 could be committed by individuals accompanying the forces.148 (iv) Contract Management Both CF and DFAIT are bound by the Treasury Board’s Contracting Policy149 relating to contracting and financial accountability. According to that policy: Government contracting shall be conducted in a manner that will stand the test of public scrutiny in matters of prudence and probity, facilitate access, encourage competition, and reflect fairness in the spending of public funds and ensure the pre-eminence of operational requirements.150

The Policy, provides that ‘all departments and agencies awarding contracts and/or amendments, are required to submit an annual report to the Treasury Board Secretariat on all contracting activities’,151 and that ‘[c]ontracting authorities should manage and administer their contracts in a manner that ensures that they are successfully executed in accordance with the agreed terms of time, cost and performance’.152 The Department of National Defence’s Administrative Order and Directive (DAOD) 3004-0 on contracting states that ‘all personnel conducting contracting activities on behalf of the Minister of National Defence (MND) to be appropriately trained/qualified’.153 DAOD 3004-1, on procedural overview, provides that: It is essential that contracting authorities take responsibility for their contracts and not assume everything will work out on its own (ie avoid the tendency to let contractors ‘do their thing’ once the contract is in place). It is important for contracting authorities to monitor the contract to ensure the avoidance of additional costs, unnecessary delays, or negative impacts on other projects or activities, and to ensure that the Crown is getting what it is paying for and that the Crown’s obligations to the contractor are also being met.154 147

NDA, s 85. Such individuals ‘shall, for the purposes of preparation, practice or execution of any plan, arrangement or manoeuvre for the defence or evacuation of any area in the event of attack, be under the command of the commanding officer of the unit or other element of the Canadian Forces that the person is accompanying or with which the person is serving or is in attendance and, for those purposes, the commanding officer shall be deemed to be a superior officer of the person’ (NDA, s 65(1)). This provision does not require such individuals to ‘bear arms or to participate in any active operations against the enemy’ (NDA, s 65(2)). 149 Treasury Board Secretariat, http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/Contracting/siglist-eng.asp. 150 ibid, para 2. 151 Ibid, para 5.1.2. 152 ibid, para 12.1.1. 153 Assistant Deputy Minister (Financial and Corporate Services); see http://www.admfincs-smafinsm.forces.gc.ca/admfincs/subjects/daod/3004/0_e.asp. 154 ibid; see http://www.admfincs-smafinsm.forces.gc.ca/admfincs/subjects/ daod/3004/2_e.asp. 148

Canada 405 In spite of the existence of these procedures, a review of the CANCAP by DND’s Chief Review Services in 2006 suggested that there is much room for improvement in the monitoring of contracts in the theatre of operations.155

C. Canada’s Civil Liability Pursuant to the principle of state immunity, under normal circumstances the Canadian government could not be sued in a foreign court for the actions of its officials. Although interpretations of the principle of state immunity vary, it is unlikely that the conduct of private actors would be attributable to Canada.156 SOFAs and other agreements may exclude the possibility of recourse to tribunals to settle damage claims. In such instances, Canada’s approach has been to establish claims settlement processes according to internal directives,157 in line with the government-wide Treasury Board policy.158 Ex gratia payments have been made in instances where civil liability is excluded by agreement, but where there is nevertheless a desire to compensate. In terms of civil actions against the Canadian government in Canadian courts, the principle is that: The Crown in right of Canada is liable in tort solely because the Crown’s immunity from suit at common law has been abolished by statute, now known as the Crown Liability and Proceedings Act.159 Liability is imposed on the Crown under two heads: (i) vicarious liability for torts committed by Crown servants in the course of their employment; and (ii) direct liability

155 M Blanchfield, ‘Cdn contractor in Afghanistan cited for deficiencies’, Ottawa Citizen, 3 June 2008, available at http://www2.canada.com/ottawacitizen/news/story. html?id=f3f358cc-5e47-4d5d-8d18-74d0d5ae4c6f: ‘In Canada, there has been comparatively little supervision of the growing reliance on civilian contractors. The latest auditor general’s report showed that civilian employees supporting the mission in Kandahar tripled between November 2006 and July 2007 to 266 from 95. SNC-PAE began operations in support of Canada’s mission to Kandahar in the summer of 2006. One of the few analyses done on the CANCAP program was published shortly before SNC-PAE’s return to the war-zone by the Forces’ Chief of Review Services and raised questions about how the lucrative contracts were administered. It cited confusion and lack of experience among military personnel in overseeing this sort of contract work, noting that the Forces lacked senior officers with experience auditing an invoice or conducting quality control.’ 156 See Stevens, above note 25, 80. 157 AOD 7004-1, Claims and Ex gratia Procedures, National Defence and Canadian Forces, available at http://www.admfincs.forces.gc.ca/dao-doa/7000/7004-1-eng.asp. 158 Policy on Claims and Ex Gratia Payment, oavailable at http://www.tbs-sct.gc.ca/ pol/doc-eng.aspx?section=text&id=12197. 159 RS, 1985, c C-50.

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for torts attaching to the ownership, occupation, possession or control of Crown property.160

Canadian law, however, is not settled on whether a foreign national could sue the Canadian government for acts committed abroad. Three cases are particularly relevant here. In the first case, an action was brought against Canada by the family of a Somali teenager, Shidane Arone.161 Mr Arone was tortured to death by CF soldiers in Somalia in 1993. One CF member was convicted of torture and manslaughter, while three others were convicted of negligent performance of a military duty.162 A fourth man, apparently the instigator, was found unfit to stand trial as a result of brain damage suffered after attempting to commit suicide while in custody.163 The court granted Canada’s motion to strike the action on the technical grounds that the action was improperly commenced, failed to disclose a cause of action and was statute-barred in terms of limitations period.164 Although an appeal was launched, proceedings were never completed. The second case, Aleksic v Canada (Attorney General),165 dealt with an action launched against Canada for damages resulting from Canada’s participation in the NATO bombing campaign in Yugoslavia in 1999. The claim alleged that the military action in Yugoslavia was illegal and contrary to international law. Damages were claimed in tort and as a remedy under the Charter. The Charter claims alleged that those who were injured while in Yugoslavia had their right to life, liberty and security of the person violated.166

On appeal from a decision dismissing Canada’s motion to strike, a majority of judges struck out the statement of claim as it ‘disclosed no reasonable cause of action. The government action in Yugoslavia was a

160 GS Lester, ‘Suing the Federal Crown in Tort: Some Practical Points to Remember’ (2000) 23 Advocate Quaterly 444. 161 Abukar Arone Rage and Dahabo Omar Samow by their Litigation Guardian Abdullah Godah Barre v The Attorney General of Canada (unreported, 6 July 1999, Ontario Superior Court of Justice). 162 See Commission of Inquiry into the Deployment of Canadian Forces to Somalia, ‘The Somalia Mission: Post-Deployment—The Courts Martial’ in Dishonoured Legacy: The Lessons of the Somalia Affair. Final Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (Ottawa, Canadian Government Publishing, 1997) vol 1, ch 14, available at http://www.dnd.ca/somalia/vol1/v1c14e.htm. 163 L Nguyen and D Hutton, ‘Forces Dismiss Torture Death Charges’, Vancouver Sun, 16 September 2008, available at http://www2.canada.com/vancouversun/news/story. html?id=a41681a1-ae24-45db-9404-c1b769f642b1. 164 See J Terry, ‘Taking Filartiga on the Road: Why Courts Outside the United States Should Accept Jurisdiction Over Actions Involving Torture Committed Abroad’ in C Scott (ed), Torture as Tort (Portland, OR, Hart Publishing, 2001) 109, 130–33. 165 [2002] OJ No 2754. 166 ibid.

Canada 407 high policy decision. Therefore, the tort claims in the statement of claim were not justiciable.’167 Amongst its arguments to support the dismissal of the plaintiffs’ claims, Canada invoked immunity from suit in tort based on section 8 of the Crown Liability and Proceedings Act, which provides that: nothing in those sections makes the Crown liable in respect of anything done or omitted in the exercise of any power or authority exercisable by the Crown, whether in time of peace or of war, for the purpose of the defence of Canada or of training, or maintaining the efficiency of, the Canadian Forces.

In response, the court noted that: While the immunity provided by s. 8 is indeed sweeping, it might not cover the fact situation presented by this case. On the facts as pleaded, the actions of Canada against Yugoslavia arguably had nothing to do with the ‘defence of Canada’, although one could say that governments don’t participate in wars unless it is necessary, in some indirect way at least, to protect Canada’s position in the long run (such as fulfilling our obligations to NATO and remaining under its defensive umbrella). Canada was not in any immediate peril at any time, and the actions were not defensive, but were rather a proactive attempt to influence the policy of the Yugoslavian government concerning Kosovo Albanians. Equally, the actions appear to have had nothing to do with ‘training, or maintaining the efficiency of the Canadian Forces’. On a plain reading of s. 8, it may not cover the fact situation before the court.168

This case therefore seems to have left open the possibility of an action against Canada for the conduct of individual Canadian Forces that would constitute gross human rights violations. The prospects for such an action, however, would need to be read in conjunction with the more recent cases on the applicability of the Charter outside Canada.169 In the third case, the estate of Nasrat Ali Hassan, an Afghan citizen shot dead by CF members in Kandahar, sued Canada in an Ontario Court in 2006.170 Here, CF members had fired their weapons: ‘when the threewheeled taxi in which [Mr Hassan] was riding crossed an Afghan police checkpoint near the Canadian Forces Base south of Kandahar’.171 The lawsuit claimed damages for ‘assault, negligence, intentional infliction of mental distress, violations of sections 7 and 12 of the Canadian Charter

167

ibid. Aleksic, above n 165, para 58. 169 For example, R v Hape 2007 SCC 26, [2007] 2 SCR 292; Canada (Justice) v Khadr, 2008 SCC 28; Amnesty International Canada v Canada (Canadian Forces), 2008 FCA 257. 170 The Estate of Nasrat Ali Hassan v Her Majesty the Queen in Right of Canada (Minister of National Defence), John Doe and Jane Doe, Ontario Court of Justice, Court File No 06-CV318619PD1. 171 ‘Afghan Family Disputes Canadian Forces’ Account of Shooting Death’, CBC News, 16 March 2006, available at http://www.cbc.ca/world/story/2006/03/16/taxiafghan-060316.html. 168

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of Rights and Freedoms, and violations of customary and conventional international law’.172 In response, the Canadian government argued that the case should be dismissed because: a.

b. c. d. e. f.

Section 9 of the Crown Liability and Proceeding Act (CLPA) bars the Plaintiffs from proceeding with tort claims against the Crown and Her soldiers; Section 8 of the CLPA provides that the Crown is not liable for the torts alleged in the Statement of Claim; Section 270 of the National Defence Act bars claims against the named members of the Canadian Forces; The tort claims made by the Plaintiffs are not justiciable, and no duty of care is owed to the Plaintiffs by the Defendants; The Canadian Charter of Rights and Freedoms does not apply extraterritorially in the manner claimed by the Plaintiffs; Sections 7 and 12 of the Charter cannot be asserted by an estate.173

Canada also argued that the action should be dismissed on the ground that the court did not ‘have jurisdiction to hear tort claims against the Crown that did not arise in the province of Ontario, pursuant to section 21(1) of the CLPA’.174 The court did not settle any of these issues, however, as the plaintiffs’ lawyer withdrew from the case and the suit was dismissed by the court 30 days later. On the basis of these three cases, it remains unclear whether a foreign national can sue the Canadian government for acts committed abroad even for harm committed by members of its armed forces. For contractors, there would be the extra hurdle of establishing that they were in effect agents of the state.175

IV. C ON C LUSION

Canada’s stake in the global PMSC sector is limited. At the same time, Canadian companies and individuals do provide security services abroad, and the Canadian government engages private companies to ensure the security of diplomatic missions and in support of the Canadian forces. As this chapter has demonstrated, there are Canadian laws, regulations 172

ibid; Notice of Action of Plaintiff, 26 September 2006. Hassan v Canada, Defendants’ Notice of Motion. ibid. 175 Especially in light of the fact that, according to the Department of National Defence’s Administrative Order and Directive (DAOD)3004-2 on Service Contracts: ‘Contracting authorities are to avoid any contracting situation that would be contrary to or conflict with the Public Service Employment Act (PSEA) and common law principles dealing with master-servant relationships’, available at http://www.admfincs-smafinsm.forces.gc.ca/ admfincs/subjects/daod/3004/2_e.asp. 173 174

Canada 409 and policies relevant to the activities of Canadian private military and security companies operating abroad and to the contracting of these companies by the Canadian government. It is also clear that in the majority of cases these mechanisms were not designed, and are not particularly well suited, to regulate PMSCs operating outside of Canada. International efforts to fill the legal vacuum relating to PMSCs are ongoing. The Montreux process has provided useful clarification on the applicability of international humanitarian law standards to private companies operating in situations of armed conflict. Also, numerous proposals exist for the creation of new international mechanisms to oversee the broader sector.176 In spite of this activity, it seems unlikely that an effective international regime will be created in the near future. However, even if such a regime were to emerge, enforcement would depend heavily on state-based accountability mechanisms, including national courts. Governments long ago recognised that the export of weapons must be regulated at the national level. By analogy, so too should the export of people who make use of those weapons. The responsibilities of home and contracting governments are becoming ever clearer.177 Calls for more comprehensive national regulation of this sector are growing, as is the list of potential mechanisms through which this could be accomplished. There are inherent risks associated with the provision of security services which may include the use of armed force. For the moment, the opportunity exists to manage these risks proactively, rather than wait for a scandal to underscore the patchwork nature of existing Canadian regulation.

176

See, eg Cockayne and Speers Mears, above n 2. J Ruggie, ‘Protect, Respect and Remedy: a Framework for Business and Human Rights’, A/HRC/8/5 (Human Rights Council, 7 April 2008), available at http://www. reports-and-materials.org/Ruggie-report-7-Apr-2008.pdf. 177

18 Colombia: Regulating Private Military and Security Companies in a ‘Host State’ IRENE CABRERA AND ANTOINE PERRET

I . I NTRODUC TION

T

HE COLOMBIAN CONFLICT, which has now being going on for 60 years, continues to generate instability in certain parts of the country. This has created an uncertain situation for many actors, both private and public. The Colombian army’s inability to face all the security threats has laid down fertile conditions for the growth of the private security market—many private military and security companies (PMSCs) have been formed or deployed in Colombia. Against this background, Colombian norms have been created to try to control this industry, including a special entity in charge of reviewing these companies’ activities. Nevertheless, the implementation of these norms suffers from problems related to efficacy. This chapter on Colombian legislation aims to analyse how states with PMSCs operating on their territory, ‘host states’, respond to the challenge of controlling the activities of non-states actors in charge of security or military tasks. As we will see in the first part of this chapter, although the Colombian norms can be seen as interesting and progressive, the practice shows that they fail to effectively control PMSCs. The Colombian institutions are not generally familiar with PMSCs’ activities, and both the last and the current government does not want public scrutiny. The second part of the chapter focuses specifically on PMSCs employed by the US government in the framework of the military cooperation between the US and Colombia: a bilateral military agreement which provides immunity to US personnel present in Colombia.

411

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Irene Cabrera and Antoine Perret I I . H I R I NG OF P MSC S IN C OLOMBIA IN GEN ERAL

A. The Private Military and Security Industry: Background and Features (i) PMSCs Registered at National Level At the moment, given the limited records and lack of research on the topic, it is difficult to establish the exact number of companies operating in Colombia. However, it is possible to estimate a classification of the PMSCs in Colombia according to their place of origin and the types of services they provide. Observing the PMSCs in this way allows us to describe the industry, and gives us the tools to later present the risks and challenges of their use in the Colombian context. The PMSCs can be of domestic or foreign origin. A significant proportion of the companies with multinational character in Colombia have their headquarters in the US and/or UK. Some of the foreign PMSCs operating in the country are Dyncorp, Control Risks, Evergreen Security and ID System. Their branches in Colombia have been contracted by public entities, private enterprises, non-government organisations, and even by people who seek personalised services. The employees of this type of contractor are of various nationalities—including Colombians. The number of foreign PMSCs in Colombia and the types of services they offer are unknown. In fact, the public records do not state the origin of PMSCs. In addition, these companies in Colombia are not always registered with the relevant authority. This situation creates ambiguity with respect to the multinational corporations that are operating in the country and the amount of contracts handled by them. Colombian PMSCs mostly work in national territory. The reports of the Vigilance and Private Security Superintendence (VPSS), an official entity in charge of monitoring these companies, indicate that these national PMSCs are employed in multiple sectors. The total number of registered PMSCs on 1 June 2009 was 3,392 companies. Of these, 27% of companies work in the residential sector, 24% in the commercial sector, 18% in the industrial sector, 8% in the financial sector, 7% in the public sector, 5% in the energy sector, 4% in private education, 1% in transport and 6% in other sectors.1 It is possible to distinguish different type of services offered by domestic and foreign PMSCs: companies in charge of surveillance and security services (this includes security guards for buildings and people); transport values; advisory, consulting and researching 1 Official page of the Vigilance and Private Security Superintendence, ‘Dimensionamiento nacional del sector de la vigilancia y seguridad privada e impacto económico y social’, Oficina asesora de Planeación, 4, available at http://www.supervigilancia.gov. co/?idcategoria=1095&download=Y (last accessed on 4 August 2009).

Colombia 413 services; production, installation, marketing and use of equipment for surveillance and private security; and use of shields for surveillance and private security.2 The surveillance and private security sector is divided into two groups: the individuals and corporate entities that create PMSCs to carry out their own protection,3 and the PMSCs who offer their services to other companies. The number of the first type of PMSCs decreased by 7.5% between 2009 and 2010 according to the official statistics of the VPSS. Even so, in 2010 this kind of company represented about 18% of the total number of PMSCs registered in the country.4 Other studies categorise these companies according to whether or not they offer military services. On this point, it is possible to differentiate between private security companies (PSCs), which only provide security services, and private military companies (PMCs), which are geared up to facilitate warfare. The use of PSCs is more common in Colombia. In fact, the Colombian legislation approves private vigilance and security services, but it does not include a rule which approves private military services. However, the companies contracted in the so-called ‘Plan Colombia’ can be catalogued as PMCs—a topic that is treated in more detail in the second part of this chapter. (ii) Trends and Challenges In Colombia, the use of PMSCs executing security and military activities is a growing trend. These would seem to be at least two reasons for this: firstly, the limited capability of the Colombian armed forces to solve high homicide rates, kidnappings and extortions, has augmented the hiring of these companies as a private way to overcome insecurity problems;5 secondly, PMSCs offer technological advantages in arms and procedures 2 These types of services are classified by Art 4 of Decree 356/1994, which contains the statutes of the Vigilance and Private Security Superintendency and the activities under its control. 3 This includes the security departments, the community service and special service (this last being dedicated to executing the exclusive activities of the military and police organs). 4 For instance, the VPSS has registered 573 companies which have their own security department such as Pedro Gómez Limited or Cusezar (construction companies); Petroleum Exploration International; Carbones Colombianos del Cerrejón SA (a company for extraction and transport of coal); Mineros Exportadores SA (a mining company); Unión de Bananeros de Urabá (a banana company); or Postobon (a soda company). See the official page of the Vigilance and Private Security Superintendence, Security Departments, available at http://www.supervigilancia.gov.co/?idcategoria=1095&download=Y (accessed on 4 August 2009). 5 According to the World Health Organization, Colombia doubled and even tripled the average homicide rates of the Latin American countries, between the 1970s and the 1990s. See C Echandía and L Salas, ‘Dinámica espacial de las muertes violentas en Colombia 1990– 2005’, Program on Human Rights and International Humanitarian Law (Bogotá, Human Rights Observatory, Vice-President’s Office of Colombia, March 2008) 7.

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that result in a more competitive, specialised and attractive response to the demand compared with the traditional public authorities. The private sector of vigilance and security services has undergone a notable expansion since the 1990s. Between 1994 and 2007, this sector grew 360%, with an average increase of 15% per year.6 Its income has exceeded the profits of other intensive economic activities.7 According to the National Council of Economy and Social Policy, this sector generates an operational income three times higher than the hotel sector, two times higher than the banana sector and 1.2 times higher than the horticultural sector.8 The absence of state laws and efficiency organs to oversee and control this industry has intensified the proliferation of PMSCs. The available data in the VPSS as of December 2010 indicates that there exists a total of 3,758 PMSCs offering their services, and another 887 companies are in the process of registration (see Table 1). However, it is important to note that there is an underreporting of the real number of domestic and foreign companies hired in the country. A high number of corrupt and inefficient police officers has made the quest for private alternatives even more pressing. However, PMSCs hired by the civilian population, non-governmental organisations, private enterprises and even public functionaries can also easily commit illicit acts. For example, since 2008 the Colombian government has been hiring PMSCs to protect people at risk, such as unionists, politicians and human rights activists who have denounced spying activities by PMSC employees. Others have expressed their preference for state protection as they feel contractors cannot offer the same guarantees.9 The uncontrolled increase of PMSCs in Colombia has also produced civil, labour and penal incidents. Inside and outside of their operations, employees of these companies have been involved in a number of misdemeanours and crimes, such as drug trafficking, rape and excessive use of force. As should be clear at this point, the hiring of PMSCs is not regulated by a legal and judicial system capable of limiting their activities and sanctioning them where those limits are exceeded. In Colombia, like in many Latin American countries that host PMSCs, there is not

6

Official page of the Vigilance and Private Security Superintendence, above n 1, 1. Ibid; ‘Listos para el Cambio’, Foro ANDEVIP. Available at www.supervigilancia.gov. co/saladeprensa/presentaciones (accessed on 4 August 2009). 8 CONPES 3521 (2008) 11. 9 P Medina, ‘Los escoltas privados, la nueva papa caliente del Ministerio del Interior’ (2011) La silla vacía, available at http://www.lasillavacia.com/historia/los-escoltas-privados-la-nueva-papa-caliente-del-ministerio-del-interior-21288. 7

Colombia 415 Table 1: Number of PMSCs by Type of Service Service of Private Security

No

% of Services % of the Total of Private of Services Security

Armed security companies

531

36.52

14.13

Unarmed security companies

77

5.30

2.05

Cooperatives on surveillance and private 46 security

3.16

1.22

Transportation of valuables

0.48

0.19

7

Security departments

669

46.01

17.80

Companies of shield services

22

1.51

0.59

Advisory companies

15

1.03

0.40

0.07

0.03

Community services for surveillance and 1 private security Training companies

68

4.68

1.81

Leasing companies of armoured vehicles 18

1.24

0.48

Total of services on private security

1,454

100

38.69

Other Service of Private Security

No

% of Other Services of Private Security

% of the Total of Services

Training department

6

0.26

0.16

Advisory, consultant and researching

1,411

61.24

37.55

Inscriptions in register

887

38.50

23.60

Total of other private security services

2,304

100

61.31

Total of service

3,758

Source: Database of the Office of Planning of the VPSS until 31 December 2010, available at http://www.supervigilancia.gov.co/?idcategoria=1096 (authors’ translation).

enough regulation to mitigate the negative effect of their use. In fact, in Colombia there is little public knowledge about the magnitude of the risks associated with this industry. In the next part it is made evident how the legal instruments and controlling entities of the private security sector require a revision to solve juridical gaps in order to control their activities and incidents.

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B. The PMSC Regulation in Colombia (i) Regulation of Security Services and Arms

(a) Regulation of Security Services According to the Colombian Constitution of 1991, the state has a monopoly over the use of force, although the outsourcing of security functions under the supervision of the state is allowed by Decree 356 of 1994. This Decree creates an entity in charge of control and imposes duties and rights on the PMSCs, including a sanction regime. It also aims to regulate the private security companies in Colombia using the definition of private vigilance and security service and the activities authorised by the state.10 The vigilance and security services are considered as economic activities of individuals or corporate entities whose objective is to prevent disturbances of security and individual tranquillity related to life, property and production, installation, marketing and use of equipment for surveillance and private security, transport and shielding for the same purpose.11 According to Decree 356, PMSCs are classified as being in the service of surveillance and private security with arms, or the service of surveillance and private security without arms. The first type includes: companies of surveillance and private security; security departments; cooperatives on surveillance and private security; transportation of valuables; special surveillance services; and private security and community services for surveillance and private security. The second type includes: companies of surveillance and private security without arms; companies related to security and surveillance equipment (production, installation, marketing and use); and companies for advisory, consultant and researching security. In this spirit, the government established the VPSS, the entity authorised to control and certify these companies.12 This body is in charge of licensing the operations of PMSCs that fulfil the requirements and processing the renewal of their permits.13 To obtain a licence, the company must report specific certifications and information, depending on the type of service offered. Among the basic requirements are: notifying the head office where the company is going to be located; the type of service offered; the equipment and security resources with their technical characteristics; the documents 10

See Art 12 Art 13 See 11

the type of service mentioned previously as contained in Art 4. 2 of Decree 356 /1994. 7 of Decree 356/1994. Arts 11 and 14 of Decree 356/1994.

Colombia 417 of constitution and the registry of the PMSCs; an insurance policy for tortious civil liability, in order to cover the risks associated with the improper use of arms or other elements of surveillance and private security; and an affiliation certification of their personnel to the social security system. There is no regulation about the level of skills of PMSC personnel; even so, Article 64 of the Decree includes responsibility for the surveillance of the professional training of PMSCs’ employees. The current legislation specifies the final goals of private security as the reduction and prevention of threats affecting life, personal integrity or the legitimate exercise of rights in property, without altering or disrupting the exercise of public rights and freedom, and without infringing on the activities reserved to the public authorities.14 A law reform to modify and amplify the content of the Decree was approved by the Congress of Colombia.15 The main aims of this new regulation are to provide an extension of the force of the licences and the possibility of renewal with less formality; to extend the duties and rights related to human rights and international humanitarian law;16 to specify new functions of the VPSS; to detail the type of equipment that should be registered by the VPSS; and including ‘specialised service’ as an activity that is in the charge of the state but could be delegated to private services. Despite the changes proposed by the bill and the details of the Decree in force, some important topics at the operational and supervisory levels are excluded. On the one hand, both dispositions lack a division between state and PMSC liabilities; a deep definition and limitation of the foreign PMSCs in Colombia; rules about the export and import of military and security services; and a regulation of the subcontracting of PMSCs in Colombia. On the other hand, it is not clear to what degree personnel should be monitored or what demands should be made of the PMSCs. Specifically, there is no overseeing of the type of hired personnel, or controls about the type of actors, who can use PMSCs, or the subsequent obligation to report the contracts undertaken in order to supervise the active companies. Finally, also omitted are provisions on accountabil-

14

Decree 356/1994. This law to reform the current regulations of the private security sector was presented by 11 congressmen in May 2009. Currently (2011), this law has not been debated in the Plenary Congress but was approved in the first debate in December 2009 at the second commission in charge of security issues. 16 The new duties of the PMSC in terms of human rights and international humanitarian law would be related to adequate training in these matters and the corresponding certification. The rights would be oriented to guarantee the labour rights of the employees. 15

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ity to civilian society and the Congress on the evolution of the whole industry.17 (b) Regulation of Arms The possession and use of arms is another area of regulation that falls short. The appropriate control parameters are stipulated in the Colombia Constitution and Decree 2535 of 1993. Article 223 of the Constitution clarifies that only the government can introduce and produce arms, war munitions and explosives, but that entities authorised by law can use arms under the government’s supervision. Decree 2535 introduces the term ‘cession of the use of arms’, and it also differentiates the types of arms according to use. It is a defining tool controlling access of the private security sector to arms. First, this Decree identifies the arms of war or arms of restricted use for the public force as arms the purpose of which is to ensure independence, national sovereignty and territorial integrity, and to guarantee public rights and liberties and the constitutional and public order. In this sense, these arms are for the exclusive use of the national security body.18 Secondly, the decree mentions the arms of restricted use that are for the public forces; exceptionally, it states, the Arms Commission,19 with the previous approval of the VPSS, can authorise PMSCs to use these arms.20 Finally, the decree describes the arms of civil use,21 classified as arms of self-defence, sports arms and collectable arms. The regulation of access of PMSCs to arms of restricted use does not include a proportionate rule to avoid the excessive use of weapons in their operations, in spite of the significant number of armed PMSCs. The state, through the VPSS, makes a sub-classification of PMSCs, depending on whether the weapons are used or not. Until June 2009, the companies registered as armed PMSCs were calculated at about 500, and those without arms at about 80.22 This information gives an idea of the number of PMSCs normally using arms in their service, in comparison with the PMSCs which employ other tools for their work. 17 Comments made by the Academic Network on the Use of Mercenaries—Colombia Chapter—to the second commission of Congress of the Republic about the current law and the new proposal. 18 Art 8 of Decree 2535/1999. 19 Organism of the Ministry of Defence in charge of authorising the possession and use of restricted arms to public functionaries and members of the surveillance and private security sector. P Casas, Violencia Crimen y tráfico ilegal de armas en Colombia (Bogotá, Oficina de Naciones Unidas contra la droga y el delito, 2006) 52. 20 Art 10 of Decree 2535/1999. 21 Art 11 of Decree 2535/1999. 22 See the list and details of armed and unarmed PMSCs at the official page of the Vigilance and Private Security Superintendence, Authorized Services, available at http:// www.supervigilancia.gov.co/?idcategoria=1096 (accessed on 4 August 2009).

Colombia 419 Finally, it is important to emphasise that the import and export of arms is monopolised by the government following Article 57 of this Decree. Only the national government can import and export arms, ammunition, explosives and accessories, in accordance with the regulations issued by the national government through the Ministry of National Defence.23 Nonetheless, this regulation does not adequately address the illegal traffic in arms and related resources. In Colombia there is a ‘grey market’, where arms legally imported by official forces and PMSCs end up in the hands of illicit actors. Of the arms in this market, 80% are ultimately destined for guerrilla and paramilitary groups, and 20% for crime groups and common delinquency.24 This suggests that there is a need for stronger measures to control the possession of arms by these companies in order to avoid this unwanted traffic. (ii) Labour, Civil and Criminal Liability The liabilities of PMSCs and their personnel at the labour, civil and criminal level are contained respectively in the ‘substantive code of work’, the ‘civil code’ and the ‘penal code’. The principles and articles of these codes are the guidelines for contracts, but at the same time, these codes govern tortious issues. (a) Labour Liability In Colombia, labour liabilities only apply in the relationship between companies and their personnel. For this reason, the principal goal of the ‘substantive code of work’ is to assure just treatment between employers and employees. This code applies to the national territory at large, and also applies to foreign people. At the labour level, in Colombia, every company must guarantee respect for the content of the code, which includes a corresponding salary in respect of working hours and overtime, affiliation to social security and the right to strike, among others. Although there are no specific rules on PMSC services or labour conditions, Decree 356 of 1994, which covers the surveillance and private security sectors, establishes the liability of PMSCs in the professional and personal training of their employees. They can be trained

23 In addition, the Decree establishes that “the import of explosives and raw materials under para 3 of art 51 of this Decree, could be undertaken under the request of individuals for commercial reasons, except in circumstances of defence and national security. The government agency responsible for these operations may not receive any utility charge and only administration and management costs”. See Art 57 of Decree 2535/1999. 24 Casas, above n 19, 31.

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by a department created by the PMSC or by an external department authorised by the VPSS.25 Nevertheless, the conditions of the labour contract and the Decree are not enough to guarantee that PMSC personnel are suitable. For example, human rights and international humanitarian law are issues not included in the basic knowledge of these personnel, and the Decree does not render people with criminal records unfit for work in a PMSC. Likewise, these dispositions are not sufficient in terms of salary and labour conditions. In particular, some employees of PMSCs have denounced a differential treatment and superior payments to foreign employees, an excess of working hours and abuses by their bosses.26 (b) Civil Liability On the other hand, commercial and civil liability applies between the PMSCs and their contractors, which includes contractual and non-contractual responsibilities.27 In Colombia, any company that offers services, including PMSCs, is mandated to use its capabilities and resources in accordance with a specific purpose, but this does not guarantee good behaviour from PMSC employees. These situations require the application of civil liability. Let us take a PMSC contracted to guard a building as an example. It has to react to a robbery, and in doing so causes material harm in the building or in the neighbourhood. Although the company’s performance accomplished the contract, the PMSC has to answer for its inappropriate conduct. When personnel breach the contract, or cause an incident, the PSMCs have to answer for the failures of their employees if the negligence or fault is proved to have been a result of the activities for which they were hired. In this context, an insurance policy for civil liability could be used. Nonetheless, there is a risk that the liability would be extended to the particular contractor, according to the damage and the affected party. (c) Criminal Liability In contrast with civil liability, where PMSCs can be legally responsible for their employees, criminal liability in Colombia is only personal. Incidents occurring outside contracted activities, such as violations of 25

Art 64 of Decree 356/1994. PMSC employee, interviewed by I Cabrera on 22 June 2009. 27 While the contractual liability is related to the explicit conditions of the contract, establishing the tort liability entails determining many details, for instance, whether the personnel were acting in the exercise of their functions; whether or not they were under licence; whether or not the contract is in force; and the place where the incident was committed. 26

Colombia 421 human rights, generate a criminal liability for the people implicated in the events. Therefore, the criminal responsibility of corporations is not recognised, and PMSCs as corporate entities are exempt from criminal liability. Depending on the case, PMSCs’ workers are not always the only responsible parties to a crime; the directors or managers of the PMSCs and even the directors of the contracting entity could be considered instigators or accomplices. Despite the possibility of putting the PMSC employees through the legal process, the Colombian judicial system is not effective in how it regulates these issues. The penal justice system suffers from congestion, slowness and instances of impunity.28 This lack of an adequate judicial administration belies serious deficiencies in establishing the truth of events, allowing the judicial access of the victims and guaranteeing an integral reparation process. As a result, the penal dispositions applicable to the criminal acts of PMSC employees are not backed by a sufficient capability to capture and punish those responsible for the crime. We can conclude this part saying that the main characteristics of the labour, civil and criminal liabilities of PMSCs present numerous gaps in Colombian regulations regarding the risk and particularities of this industry. The labour abuses and commission of civil and criminal acts by the personnel of these companies have been paid scant attention despite the recurrent use of force and the employment of violent arms. This suggests that the social risk of PMSCs’ activities deserves the development of more precise tools to establish where the liability of these companies and their personnel begins and ends. Another problem is that only some of the PMSCs present in Colombia are subjected to Colombian legislation. The others engaged by the US work under Plan Colombia and benefit from special status.

I I . US P MS C S IN P LAN C OLOMBIA

Plan Colombia29 was set up in 1999 as a result of collaboration between Pastrana’s administration in Colombia and Clinton’s administration in the US to take forward the war against drugs. This plan sees the involvement of numbers of PMSCs. However, as will be examined in the following section, the collaboration between the US and Colombia has existed for a long time, and Plan Colombia is merely a continuation and a deepening of this close relationship. The military cooperation agreement with the US overrides Colombian 28 F González and C Posada ‘Criminalidad, violencia y gasto público en defensa, justicia y seguridad en Colombia’ (2001) 3 Revista de Economía Institucional 4. 29 Plan Colombia: Plan for Peace, Prosperity, and the Strengthening of the State (usually referred to as ‘Plan Colombia’).

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criminal jurisdiction over crimes that may be committed by US personnel. This suggests that illicit acts such as homicide, rape and trafficking by an American PMSC employee cannot be judged in Colombia, and that their victims should seek legal alternatives outside the country in order to access due process and obtain their redress.

A. Plan Colombia and US-Colombia Agreements

(i) US historic Agreements and Immunity Some military agreements between the two countries date from after the Second World War, like the American Treaty of Reciprocal Assistance signed in 1947. However, it was only in 1959, with Law Number 24, that all the military agreements were legalised. This law allows the Colombian government: to conclude contracts or conventions with the representatives, duly authorized, of international organisations or specialised agencies, or with the public or private agencies national, foreign or international, with the specific objective to ensure the use or the service of technical assistance or the supply of elements or other facilities necessary for the formulation or execution of plans or programmes of economic development, social, cultural, medical or other related matters.

This paragraph will be used as the basis for future agreements. The most important of these agreements is the General Convention on Economic Aid and Technique, between the government of the Republic of Colombia and the government of the US, which was signed in 1962. This agreement represented the first step towards the immunity of US personnel in Colombia. Article III states: The government of Colombia will receive a special mission and personnel to carry out the duties of the government of the US according to the present Agreement and will consider the personnel of this special mission as part of the Diplomatic Mission of the government of the US in Colombia, with the purpose to concede them the privileges and immunities that are granted to this mission and to personnel of equal rank.

Law 24 of 1959 was abolished by a decree in 1976, but the Colombian government found other tools for new military agreements with the US: complementary or simplified agreements. The simplified agreements are conventions between two states which develop or carry out the contents of outline treaties and the conclusion of which does not require approval of the respective congresses. In the case of the military collaboration between Colombia and the US, the objective was to develop

Colombia 423 the Convention of 1962. The immunity of US personal was reiterated in the Bi-national Agreement, elaborated on 17 September 2003, in the following terms: For the aims in the present Agreement the expression ‘person of the United States of America’ means any government employee, employee (including any contractor), or member of the army, present or past, member of the government of the that enjoyed immunity against the penal jurisdiction by virtue of the international law, anyway is subject to the jurisdiction of the state that It sends (the United States of America).

This reform extends immunity to any person subject to the jurisdiction of the US. Finally, Colombia signed a bilateral immunity agreement with the US.30 This agreement completes and extends the immunity of US citizens, and the PMSC contractors working in Colombia, to the international justice system. (ii) Plan Colombia The objectives and the strategy of Plan Colombia: Plan for Peace, Prosperity, and the Strengthening of the State (usually referred to by its shortened form, Plan Colombia), were simple: economic development, security and peace are directly linked. For this reason, Plan Colombia includes human rights, social development enforcement measures, and economic and armed conflict negotiation advice, but its main purpose is military (over 70% of the total aid package): ‘taking the money generated by drugs out of the market reduces the war-making capacity of all three terrorist groups [FARC, ELN and AUC31], thereby reducing the level of violence and enhancing the prospects for peace.’32 Then ‘it tended to the intensification of fumigation operations in areas where illegal substances are produced.’33 As Veillette says, the objectives of Colombia and the US for Plan Colombia differ in some aspects: The primary US objective is to prevent the flow of illegal drugs into the United States, as well as to help Colombia promote peace and economic development 30 Currently, 102 states have similar agreements with the US. These agreements exempt US citizens from prosecution by the International Criminal Court (ICC). 31 Fuerzas Armadas Revolucionarias de Colombia (FARC); Ejército de Liberación Nacional (ELN); Autodefensas Unidas de Colombia (AUC). All three are defined as terrorist groups by the US. 32 G Marcella, ‘The United States and Colombia: The Journey from Ambiguity to Strategic Clarity’ (Strategic Studies Institute, 2003), available at http://www.strategicstudiesinstitute.army.mil/. 33 F Massé, ‘Les Etats-Unis et l’Europe face au conflit colombien’, Les Études du CERI No 95 (Paris, Centre d’études et de recherches internationales, June 2003). Author’s translation.

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because it contributes to regional security in the Andes. The primary objectives of Colombia are to promote peace and economic development, and increase security.34

It was possible to see the first results in 2002, at the end of Pastrana’s term: the Colombian army was larger, more aggressive and better led, organised, trained, motivated and equipped.35 However, since its beginning, the Plan has been subject to a great amount of criticism concerning the risk of a military upscaling and the Plan’s real objective. It was not very clear if it was a plan for fighting drug trafficking or a plan to assail illegal actors, especially guerrillas. Efforts were concentrated in the south of the country, precisely where FARC is the strongest illegal group.36 Another relevant point of the Plan is the militarisation of the US intervention in Colombia. In the 1990s, the fight against drugs was mainly a police problem. The US provided equipment, supplies and other aid for the counter-narcotic efforts to the police, but since 2001 they have provided this help directly to the Colombian military.37 As well as militarisation, the fight against drugs started to privatise: although the presence of DynCorp has been noted38 since 1988, its concrete actions have only been confirmed since 1994. Its contracts depend directly on the US State Department, and it is present in Colombia ‘to work in anti-drug projects with the Anti-drug Direction and the Colombian National Police’s Air Forces, as well as to support the National Army’s Air Forces’.39 The real privatisation started with Plan Colombia, in 2002, when an estimated US$150 million was paid to PMSCs, almost 50% of the total US$370 million the US assigned to Colombia during 2002 to finance military and police operations. It is important to underline that at the beginning of 2002, with the end of the negotiations between the Colombian government and FARC, the funding allocated to the fight against drugs was also used to fight the guerrillas. The consequence for the contractors is that the advice they gave to fight drug trafficking transformed into counter-insurgent training.40 The use of PMSCs became a means of decreasing the direct

34 C Veillette, ‘Plan Colombia: A Progress Report’, CRS Report for Congress (Washington, DC, May 2005). 35 Marcella, above n 32. 36 Massé, above n 33. 37 NM Serafino, ‘Colombia: Plan Colombia Legislation and Assistance (FY2000-FY2001)’, CRS Report for Congress (Washington, DC, 2001) 2. 38 Freedom of Information Act (FOIA), available at http://jeremybigwood.net/. 39 ‘Mercenarios’, Semana No 1002, 13 August 2001. Author’s translation. 40 A Feickert, ‘US Military Operations in the Global War on Terrorism: Afghanistan, Africa, the Philippines, and Colombia’, CRS Report for Congress (Washington, DC, 2005).

Colombia 425 participation of the US government in the Colombian conflict, which did not find support in either of the two countries.41

B. Activities and effects of PMSCs in Colombia (i) Activities of PMSCs In 2009, 14 PMSCs were contracted by the US State and Defence Departments for a total of US$216.7 million in order to carry out activities related to US military and police aid to Colombia.42 The activities of these PMSCs in Colombia can be described by categorising their involvement in the conflict using Singer’s typology43—Military Support Firms, Military Consultant Firms and Military Provider Firms—starting with the least involved. In the Colombian case, similar to cases all over the world, the category Military Support Firms represents the biggest market; the majority of the PMSCs working for the US State Department and the Department of Defence fall into that category. For example, the PMSC’s Virginia Electronic Systems, Inc and Air Park Sales and Service, Inc delivered and installed communication equipment for the navy’s air forces in 2002.44 In 2009, Telford Aviation supported logistics matters for reconnaissance airplane,s and ITT and ARINC are responsible for radar.45 In 2006, Chenega Federal Systems was in charge of maintaining an intelligence database, and Oakley Networks of Internet surveillance.46 Since the Intelligence Authorization Act of November 2003,47 intelligence services provided thanks to Plan Colombia’s budget can be used not only for the fight against drug trafficking but also for the fight against terrorism.48 In other words, the current intelligence activities are fundamental not only for the fight against drug trafficking but also 41 J Vauters and ML Smith, ‘A Question of Escalation—From Counternarcotics to Counterterrorism: Analysing US Strategy in Colombia’ (2006 17(2) Small Wars and Insurgencies 63. 42 The US Department of State, ‘Report to Congress On Certain Counternarcotics Activities in Colombia’ (Washington, DC, 2010). 43 See PW Singer, Corporate Warriors, The Rise of the Privatized Military Industry (Ithaca, NY, Cornell University Press, 2003). 44 El Tiempo, 20 June 2003. 45 Report to Congress (2010), above n 42. 46 The US Department of State, ‘Report to Congress On Certain Counternarcotics Activities in Colombia’ (Washington, DC, 2007). 47 In its 313th section, ‘Use of Funds for Counterdrug and Counterterrorism Activities for Colombia’, the Act authorises the use of intelligence funds used in counterdrug activities to be used in counterterrorism activities against FARC, ELN and AUC, with the objective of protecting health and human life in emergency situations, including rescue operations. Senate of the United States of America (2003), FY2004 Intelligence Authorization Act, Report 108-163. 48 C Veillette, ‘Andean Counterdrug Initiative (ACI) and Related Funding Programs: FY2005 Assistance’, CRS Report for Congress (Washington, DC, 2005).

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to fortify and increase the capacity of the Colombian military to fight irregular groups. A first example of PMSCs in the Military Consultant Firms category is the contract for military training that Military Professional Resources Incorporated started in 2000 to help restructure the Colombian armed forces in their fight against drugs49 and then to work with the army and the national police to train them in psychological operations, intelligence and logistics.50 In 2009, the PMSC ARINC, Inc signed a US$13 million contract financed by the Plan Colombia fund to develop personnel training activities, maintenance and logistical support for the Colombian Air Bridge Denial programme;51 in 2006, the company was contracted for almost the same task for US$20 million. Only two PMSCs hired in the context of Plan Colombia (Northrop Grumman and DynCorp) have Military Provider Firms characteristics, meaning that they are companies that offer military operations services and participate directly in combat. Northrop Grumman was hired for US$30 million52 as a subsidiary of the California Microwave Systems Inc company. Its activities consist in flying over the Colombian jungle with aircraft equipped with infrared cameras with the objective of making reconnaissance flights over illegal activities related to drugs or guerrilla movements.53 In 2003, the last job undertaken by Northrop Grumman in Colombia before being replaced by a new PMSC, CIAO,54 led to several attacks by FARC against airplanes and some of the PMSC’s pilots were killed. DynCorp currently holds the most important contract of the State Department in Colombia. Its tasks include participation in illegal cultivation fumigations, training, air transport, aircraft maintenance, reconnaissance, and search and rescue operations,55 which are focused on locating and shutting down aircraft and countering hostile actions taken by drug producers or traffickers. DynCorp has an offensive role when it fumigates illegal cultivation. The aircraft that is in charge of dropping the glyphosate is always accompanied by two or three combat helicopters for protection.56 The aircraft involved in fumigation are frequently 49

‘La guerra privatizada’, Semana No 1071, 10 November 2002. D Adams and P De La Garza, ‘Military Aid from the Private Sector’, St Petersburg Times, 3 December 2000. 51 Report to Congress (2010), above n 42. 52 AI Vargas, ‘Colombia: Una Amenaza Conveniente’, Semana No 1034, 26 February 2002. 53 J Forero, ‘Private US Operatives on Risky Missions in Colombia’, New York Times, 4 February 2004. 54 ibid. 55 DynCorp-State Department Contract (2001), available at http://www.corpwatch.org. 56 US Government Accountability Office, ‘Drug Control, Report to the Honorable Charles E. Grassley, Chairman, Caucus on International Narcotics Control, US Senate’ (Washington, GAO, 2004) 9. 50

Colombia 427 attacked. Between 2001 and 2002, around 10 attacks took place per month. In 2003, this increased to a peak of 73 attacks per month. These numbers have since decreased and now average 26 attacks per month.57 The Colombian National Police assumed responsibility for helicopter gunship and search and rescue mission support for the aerial eradication programme,58 but the helicopters ‘have a mixed crew composed of both contractors and members of the National Police’,59 which are armed and ready to fire on the aggressors. The SAR team is the second example of DynCorp’s involvement in the Colombian conflict. In 2001, it was estimated that the SAR had participated in about 15 rescue missions.60 PMSCs allowed to use force may be involved in violations of human rights—and even more so if there is no control of their activities, as is the case with DynCorp in Colombia: the US Embassy, which is supposed to be in charge of supervising the implementation and enforcement of the contract, does not oversee DynCorp’s activities effectively. The PMSC is in charge of hiring the employees and providing the necessary material— the US government is interested only in outcomes.61 The consequences of this lack of control can be dramatic, considering that, as we will see in the next sub-section, PMSCs’ employees are granted immunity. (ii) PMSC and Immunity: a Risky Bet The use of PMSCs in the context of Plan Colombia can be justified economically, militarily and politically. The interest in using such firms comes from the US as well as from Colombia, the first wanting to reduce the production and traffic of illicit drugs, the latter trying to gain military expertise to confront its internal conflict. These arguments should allow us to define the use of PMSCs as appropriate. However, the participation in the Colombian conflict and the immunity that US employees enjoy bring certain problems for justice in Colombia. For example, in August 2007 an American soldier and a PMSC contractor working in the Tolemaida base raped a 12-year-old girl.62 The Colombian judicial system opened an investigation, but there is a very high probability that nothing will be achieved. A similar case happened in 2004: contractors from the same base recorded a pornographic movie with

57

ibid, 1. The US Department of State, ‘Report to Congress on Certain Counternarcotics Activities in Colombia’ (Washington, 2010) 4. 59 ‘Mercenarios’, above n 39. Author’s translation. 60 ibid. 61 Employee of the US Embassy in Bogotá, interviewed by A Perret on 4 May 2007. 62 ‘Investigan a dos militares de EU por violación de niña de 12 años en Comando Aéreo de Melgar’, El Tiempo, 7 October 2007. 58

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minors.63 Due to the immunity of PMSCs’ employees, the Colombian justice system has its hands tied: it cannot summon the defendants, nor can it make a request for extradition. The two cases currently still remain unresolved, in Colombia as well as in the US. DynCorp employees involved in heroin trafficking in 2001 also enjoyed total immunity.64 The Colombian police tried to start an investigation, but the investigators were quickly gagged. The legal authorities in the US and Colombia were not interested in the case. US Congresswoman Shakowsky reacted to this case in 2001, criticising the accuracy of the US policy of war against drugs if the people employed to carry out this policy are trafficking drugs. Clearly, all such PMSC employee impunity cases in Colombia reduce credibility of the Colombian justice system, already weakened by several problems related to human rights violations perpetrated by armed forces. Colombian military personnel have been accused in several cases of aiding paramilitary groups and violating human rights, but in 1998 institutional restructuring began, during which most of the military personnel were professionalised and the number of soldiers increased.65 In spite of this 1998 reform, though, human rights violations by the armed forces in the community are still high. In cases where military personnel are involved it is possible to rectify previous actions, but in the case of contractors it is more difficult as there is still no regulation on the activities they perform. This injustice should be analysed and compared with Plan Colombia’s objectives and, in a more general way, with US–Colombia cooperation. In the US, the main objective of Plan Colombia is to ‘combat illegal narcotics traffic’.66 In Colombia, while the anti-narcotic component is clear, the strengthening of the police and army is also a key element of the Plan. To some extent, Plan Colombia can be considered successful, despite failing in the fight against trafficking,67 in that it has strengthened public forces and rebuilt the Colombian state’s legitimacy. Nevertheless, although the technical capacity of the Colombian Public Force has truly improved, human rights violations and military justice problems are still a serious concern. In this context, it is legitimate to ask if the

63

D Murcia, ‘Corporación Colectivo de Abogados’, interviewed by A Perret on 19 April

2007. 64

‘Mercenarios’, above n 39. F Leal, La Inseguridad de la Seguridad, Colombia 1958–2005 (Bogotá, Planeta, 2006) 204. 66 ‘Plan Colombia: Plan para la Paz, la Prosperidad y el Fortalecimiento del Estado’, available at http://usembassy.state.gov. 67 For details on the drug production in Colombia see Oficina de las Naciones Unidas contra la droga y el delito, ‘Colombia: monitoreo de cultivos de Coca’ (2009), available at http://www.unodc.org/colombia/es/index.html. 65

Colombia 429 granting of immunity to PMSCs acts to the benefit or detriment of the main interests of Plan Colombia.68

I I I . C ON C LUSION

The use of PMSCs in Colombia had become common practice by the end of the 1990s. The rise of the security market at the international level and the internal conflict situation in Colombia made this country propitious for PMSCs. To regulate this development of private security, the state tried to control PMSCs’ operations by imposing certain limitations, such as on the possession of weapons, and by controlling their activities. A special entity is in charge of overseeing the activities of these companies. However, in practice, this overseeing is not effective. In Colombia there persist significant problems of registration of these companies and companies operating without licences. Moreover, the Vigilance and Private Security Superintendence does not act with decentralised entities to inspect PMSC’s activities, and the illicit acts committed by PMSC’s personnel are only processed by Colombian justice with difficulty. In Colombia, surveillance services and private security services are now more regulated, but the law does not take into account the military dimension or potential use of force of these companies. There are few controls over the armed capabilities of PMSC personnel, and the difference between the military forces’ duties and PMSCs’ obligations in some cases is fading. The focus of the Colombian regulation of PMSCs is concentrated on national operations. This trend fails to respond to the need caused by the expansion of this industry when foreign companies are frequently required and hired in the country. At the same time, there is no way to control completely the type and objectives of the services executed by these companies, considering the insufficiency of the legislation and the deficiencies of the control and judicial organs. On the other hand, PMSCs are present in Colombia in the frame of a military agreement between the US and Colombia. For more than half a century, the US has been collaborating on the military level with Colombia, and since the setting up of Plan Colombia in 1999 this collaboration has been reinforced. Some of these activities were confined to US soldiers until 1999, at which time they were outsourced to PMSCs, increasing the number of PMSCs present on Colombian territory. The agreements between the two countries mean that the US personnel present in Colombia benefit from total immunity. It is impossible for the 68 A Perret, ‘Las compañías militares y/o de seguridad privadas en Colombia: ¿una nueva forma de mercenarismo?’, Pretexto No 34, (Bogotá, Universidad Externado de Colombia, 2009).

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Colombian justice system to take any action against US personnel who flout the law. This immunity or gap in the law is reinforced in the case of the PMSC’s employees because they are not subject to the Colombian legal system or to the military justice of the US. Colombia, as a host state, suffers from several problems associated with PMSC activities. The lack of will from the state to effectively regulate these companies is obvious. In spite of the existence of a law purporting to control the phenomenon of private security, the Colombian government does not regard the phenomenon as a possible problem. PMSCs are considered a new tool able to facilitate the good progress of security policy, and not as possible competitors of the state in the use of force or as a threat against civilians. However, the many cases of violations of human rights show that stricter control by the authorities is necessary. The disinterest of the government in the field can be noted at several levels. First of all, there is no reference in Colombian legislation to the crime of recruiting, using or training mercenaries. Colombia has not signed or ratified the International Convention against the Recruitment, Use, Financing and Training of Mercenaries of 1989, nor has it yet authorised an official visit from the UN’s working group on mercenaries, which has been requested since 2005. Colombia did not participate in the Swiss initiative and has not endorsed the Montreux Document on private military and security companies. Finally, during the preparation for a political debate on PMSC use in the country by the Colombian senate, the government did not recognise the phenomenon. At the same time, the countries exporting security services (in this case, mainly the US) do not really promote control and accountability of PMSCs and their activities. Immunity for PMSC employees is a decision of the home state. In this case, where the declared principal objective of military cooperation is the reinforcement of the local institutions to make zones safe and to fight against organised crime or terrorism, it is unlikely that blocking local justice will be helpful. Finally, the responsibility returns to the home state—and contracting states in this case—because it is the home state which imposes the conditions under which the PMSC will operate, but it is probably not the best option for a real and effective control of PMSC activities.

19 Israel: Going Private: The Use and Regulation of Private Military and Security Companies in Situations of Armed Conflict YAËL RONEN*

I . I NTRODUC TION

T

HE ROLE OF private operators in armed conflict has seen many changes through the years. If the development of the modern state was followed by a gradual shift from the reliance on decentralised and private bodies acting for profit to the employment of regular public armies, the turn of the twenty-first century has seen a return of for-profit organisations into the battle field, albeit in a different form than in the past. The laws of armed conflict, premised on the participation in the theatre of war of principally state forces, have yet to be adapted to the emerging challenges. In the meantime, states actively involved in armed conflict, which incorporate private actors in a variety of different military and military-supporting activities, have been progressively developing their domestic law to account for the phenomenon. This contribution provides an account of Israel’s approach to the regulation of private military and security services. As will be seen, Israel’s reliance on private military and security companies is exceptional even within the great variety of modes in which such operators manifest. It is not involved in peacekeeping or peace-enforcing forces in far-off lands, either under the umbrella of an international organisation

* I am grateful to the numerous named and unnamed interviewees for assisting me in collating the information and analysing it, as well as to Adv Sari Bashi, Dr Amir Paz-Fuchs and Adv Ido Rosenzweig for their helpful comments on earlier drafts.

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or individually. Rather, Israel has for over four decades been heavily involved in military activities along its own borders. The distinction between international and domestic activities has gradually become blurred for many reasons, only some of which can be addressed here. The bulk of this chapter concerns the civilianisation and privatisation of security and military functions previously performed by state authorities, within Israel and in areas under its control. In addition, the chapter addresses the regulation of the export of security and military services by private entities. There is no formal definition or designation of the terms ‘military’, ‘defence’ or ‘security’ under Israeli law. As a consequence of multiple and often overlapping contexts, these terms also do not necessarily refer to mutually exclusive functions. Accordingly, the present chapter utilises the term ‘security’ loosely to cover the various situations to which the laws of armed conflict may apply. The term ‘private security companies’ (PSCs) is utilised to describe private corporations involved in providing services in this context.

I I . P R I VAT ISED MILITARY AN D SEC URITY AC T I V I T I E S I N ISRAEL AN D IN THE WEST BAN K

Israel does not participate in multi-national military operations or peacekeeping forces. Consequently, it is not involved in the activities with which private contractors are most commonly associated. However, in its 62 years of independence, Israel has been involved in numerous armed conflicts. In addition, Israel has been occupying the West Bank for over 40 years under the law of occupation.1 Thus, the Israeli military is continuously involved in situations that are likely to raise issues relating to the laws of armed conflict. Moreover, Israel is continually dealing with terrorist activity threats within its sovereign territory. In line with trends elsewhere, Israeli jurisprudence has increasingly regarded terrorism as falling within the armed conflict paradigm rather than within the criminal law paradigm.2 However, institutional mechanisms to address terrorism are not entirely distinct from domestic crime-fighting mechanisms. Thus, a significant share of Israel’s police resources have been directed towards anti-terrorism (defensive) operations, especially since the second intifada in 2000 1 It is not necessary for present purposes to examine the status of Israel vis-à-vis the Gaza Strip, since there is no military presence there, let alone private operators. While there has been a long—and at the time of writing largely redundant—debate whether the Geneva Convention IV applies in the area, Israel has never contested its status as occupying power under the Hague Regulations, 1907. 2 The Public Committee against Torture in Israel and LAW v The Government of Israel and Others, HCJ 769/02 Supreme Court of Israel Judgment of 14 December 2006 (Targeted Killing case), [16]–[21].

Israel 433 has made city centres and other sites within Israel targets for terrorist activity.3 Police anti-terrorism operations include intelligence activities for the prevention of terrorist acts, response to terrorist attack scenes, neutralising suspicious objects, instruction and monitoring of guards, and guarding of public and other locations to ensure normal civilian life. In 2003, for example, the police reported having carried out over 550 anti-terrorist operations, responded to 700 calls regarding suspicious objects in the Jerusalem area alone (as opposed to 200 calls previously), and instructed hundreds of security officers and security personnel.4 The main contexts in which private contractors carry out security functions in Israel and in the West Bank are: 1. Day-to-day management of the crossings between Israel and the West Bank and between Israel and the Gaza Strip. In the past, those were operated by military forces; at the time of writing, the process of privatisation applies to locations that are characterised as ‘last checkpoint prior to entry into Israel’, of which there are between 30 and 40 (the number fluctuates as crossings are continuously under construction while others close down). The bulk of this chapter concerns this activity. 2. Guarding of various public and private establishments in Israel and in the settlements in the West Bank. With respect to government and public utility buildings, this practice follows worldwide convention and dates to the establishment of the state. It expanded to a variety of other establishments in the early 1990s, following the breakout of the first intifada terrorist activity against civilians within Israel, which manifested itself in remote-controlled bombs and suicide bomb attacks on buses, bus stops, cafés, markets, etc. For example, a government decision of 1995 placed the responsibility for securing schools on the police. With time, some of these security services (eg in schools) have been privatised. In 2008, 21.1% of the police’s procurement budget went to civilian manpower services (although these probably encompass more than security services).5 3. Guarding of other public and private establishments. The use of PSCs became prevalent also among private establishments in the early 1990s, The outbreak of the second intifada in 2000 reinforced 3 For statistics and details of terrorist activities since 2000, see Israel Ministry of Foreign Affairs, ‘Suicide Terror Attacks 2000–2007’, available at www.mfa.gov.il/MFA/Terrorism+Obstacle+to+Peace/Palestinian+terror+since+2000/Suicide+and+Other+Bombing+Attack s+in+Israel+Since.htm. 4 G Fishman (ed), Balancing Police Action Between Terror and Maintaining Public Order—a Summary of an Era and Challenges for the Coming Years (The Police and Society Forum of the Police and the Israel Democracy Institute, 2005), 36 (in Hebrew). 5 Israel Police, 2008 Budget, available at www.police.gov.il/mehozot/agafTichnon/ Pages/takziv_amishtara.aspx (in Hebrew).

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this trend, leading to a significant growth in the number of private security personnel (almost threefold from 1995 to 20036).7 4. Guarding of the construction of the separation barrier in the West Bank since 2003. The responsibility for engaging security services is in the hands of the construction contractors.8 5. Guarding in the old city in Jerusalem and in Jewish residential enclaves in East Jerusalem. Guarding in East Jerusalem is performed under the auspices of the Ministry of Housing, which outsources the services to PSCs. The security operations of this Ministry—irrespective of whether they are carried out by private contractors or directly by ministry employees—were subject to consideration by a committee appointed in 2005 by the Minister of Housing (the Orr Committee). The committee recommended that security operations be transferred to the responsibility of the police. The government endorsed this recommendation but later retracted its endorsement. This chapter focuses on the first category of services, which is the one most likely to raise questions of international humanitarian law (IHL). Since the services under categories 2 and 3 above are regulated by legislative instruments similar to those of services under category 1, they will also be addressed.

I I I . C R OSSIN GS: BAC K GROUN D

Following the occupation of the West Bank and Gaza Strip in 1967, the IDF declared these areas closed. Entry into and exit from the West Bank and Gaza Strip were made conditional upon a permit.9 For many years a general permit was in place, allowing unrestricted access of Palestinians into Israel, but in 1991 this general permit was annulled. Since then, Palestinian residents of the West Bank and Gaza Strip have required individual permits for exit from the West Bank or the Gaza Strip (into Israel or to Jordan or Egypt, respectively). Permits to exit the West Bank or Gaza Strip into Israel are referred to as ‘entry permits’ because of the interface with Israeli law. These permits are granted by the Civil Administration operating under the Coordinator of the Government’s Activities in the Territories, a unit within the Ministry of Defence. Since 2003, entry 6 S Handels, Guards and Security Guards in Israel 1995–2003 (Ministry of Industry, Trade and Labor, Planning, Research and Economics Administration, 2003) (in Hebrew). 7 Until 2005, these security services were provided on a contractual, non-statutory basis. Such services were regulated exclusively under civil and criminal law. 8 Ministry of Defence, ‘Israel’s Security Fence, Operational Aspects’, available at www. securityfence.mod.gov.il/Pages/Heb/bitzua.htm. 9 Military Commander’s Order on Closed Areas (West Bank) (Amendment) (No 34), 1967 of 8 July 1967.

Israel 435 from the West Bank and Gaza Strip has been regulated by the Nationality and Entry into Israel (Provisional Measure) Law, 2003, which restricts the authority of the Military Commander of the West Bank (until 2005 it also applied to the authority of the military commander of the Gaza Strip) and of the Minister of the Interior in permitting entry to Israel other than for specified purposes (work, medical treatment, and family reunification for persons above a certain age). The Law’s criteria for permitted entry largely formalised criteria that had already been employed by the Military Commander prior to the adoption of the Law. The Law thus did not change the practice so much as it formally limited the discretion of the Military Commander and of the Minister of the Interior. Physically, entry from the West Bank and Gaza Strip into Israel was mostly unchecked until the 1990s, at which time various means of monitoring began to be utilised. Those culminated in the construction of the separation barrier in the West Bank, which began in 2002 (and has not yet been completed, primarily due to financial constraints10).11 In addition, within the West Bank itself there are some 60 internal checkpoints that monitor movement within the area. At the time of writing, entry into Israel is monitored through some 30 permanent, staffed, around-the-clock crossings, also referred to by the Israeli government as ‘crossings’, characterised as being points of entry into Israel and exit therefrom.12 Most of these crossings are located inside the West Bank, up to several kilometers from the Green Line (the 1948 ceasefire line). A handful of additional crossings control entry into Israel from the Gaza Strip.13 Various crossings are designated specifically for the movement of pedestrians, vehicles or commercial goods, and are designed accordingly.

I V. C I V I L I ANI S AT ION AN D P RIVATISATION OF T H E C R OS S I NG S : HISTORY AN D RATION ALES

The civilianisation and privatisation of the crossings is not an isolated phenomenon but part of a more general process taking place in Israel, namely the civilianisation and privatisation of functions hitherto performed by the Israeli Defence Force (IDF). The IDF is unique among national defence forces in that its role in Israeli society has always extended much further than the performance of security functions. At the time of independence, the socialist, nation-building regime intentionally used the military service as a tool in shaping the ‘new’ Israel, and 10 IDF response in Comments of the Prime Minister to State Comptroller’s Annual Report No 59A (for 2008) (2009), 16. 11 A security fence was erected around the Gaza Strip in the late 1990s. 12 Implementation Law, Art 10(a). 13 At the time of writing only two crossings are operative, Erez and Kerem-Shalom.

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used the military as the single most useful agent in implementing the government’s agenda during a difficult economic period. Comprising unpaid yet well-organised conscripts, the IDF proved a relatively disciplined, cheap, practical tool to carry out government policies.14 Thus, for example, Israeli law allows the posting of an IDF soldier to serve in the Israeli police, or in a military unit located in another government office or in a public entity under the supervision of a government ministry, the purpose of which is a national security goal in one of the following areas: immigration absorption, education, health, homeland security or voluntary actions for IDF soldiers.15 In the late 1980s and early 1990s, economic and technological developments, as well as emerging political challenges, prompted a renewed assessment of IDF functions. Successive committees recommended that functions performed by the military be opened to civilian industry,16 and measures were adopted towards this goal, although not in a systematic manner.17 In November 2000, the government of Israel adopted a decision according to which the IDF would list the tasks that can be performed by the civilian sector and their implications.18 The outsourcing of services began with food catering, laundry and transportation. It then expanded to construction of military systems, including the separation barrier. Strictly speaking. the IDF was concerned not so much with privatisation but with civilianisation, namely the transfer of functions to non-military authorities, which may themselves be state organs. In practice, the first functions which underwent this process—food catering, laundry and transportation—were not only civilianised, but also privatised. At present, there are suggestions to civilianise entire units which have a dominant professional component that is obtainable in the civilian market, such as the Military Advocate General’s office, the medical services, the computerisation units and the budget unit.19 Some of these functions might also be privatised, such as the medical services, which would be provided by healthcare associations. With respect to human services, civilianisation without privatisation, ie maintenance of the function within the state’s civil service, is perceived as increasing expenses, because it requires the state to pay salaries to civilians instead of benefiting from the services of soldiers who are not 14 GI Seidman, ‘From Nationalization to Privatization: The Case of the IDF’ (2010) 36 Armed Forces and Society 716, 717. 15 Defence Service Act, 1986, Art 26A. A converse mechanism, of ‘civilian employees of the IDF’, has also existed for many years and is regulated by law. This phenomenon is not reviewed in this report. 16 The Sadan Committee’s report of 1994, the Brodet Committee’s report of 2007. 17 For a succinct description of this process, see Seidman, n 14 above. 18 Government Decision 2571 (TM/79), 30 November 2000. 19 Ministry of Finance, Israel Budget, 2009–2010 Budget, Highlights of the Ministry of Defence’s Budget Proposal, 92, available at www.mof.gov.il/BudgetSite/StateBudget/ Budget2009/MinisteriesBudget/Safety/Lists/List/Attachments/1/C1.pdf (in Hebrew).

Israel 437 paid a substantial salary.20 Privatisation, at least when carried out by outsourcing to contractor corporations, lowers the cost of security services, because contractor workers are only entitled to limited social benefits.21 For this reason, where a function is civilianised, the state may also have an interest in privatising it. The civilianisation and privatisation of the functions performed in crossings in the West Bank and around the Gaza Strip are another step in this general framework, although it has some unique aspects, since the civilianisation and privatisation of the crossings are driven by specific additional motives, some declared publicly and some less openly articulated. First and foremost, the IDF was keen to be relieved of securing the crossings because of the emotional toll it was taking on soldiers who were not trained for constant interaction with civilians.22 Research conducted by the IDF itself as well as by NGOs reveal that the constant friction between soldiers and the Palestinian civilian population results in a rising level of dehumanisation of that population in the eyes of the soldiers, and in unjustified violence towards it.23 This friction has other negative consequences on the performance of soldiers, such as a rise in ‘ordinary’ criminal activity. It has been suggested that extraction of soldiers from securing the crossings and the transfer of this function to civilian hands would both reduce the risk of humanitarian law and human rights violations, and help preserve the moral credibility of the IDF.24 Civilians would also be older than the regular soldiers previously performing the same function, and thus hopefully less prone to committing violence and petty crimes. A related rationale for the civilianisation of the crossings is that it 20 Counterarguments have been put forward, namely that reliance on conscripts generates unique and less visible costs, such as the delay in the entry of young people into the job market. 21 In cases of security functions that have until recently been carried out by non-military persons who received full salaries with social benefits, such as policing and the security services in embassies, the economic advantage is therefore immediate. On the financial motive for privatising the security services by the Ministry of Housing, see the testimony of Nitai Levy, in ‘Employee Organization—Existing Obstacles and Potential Means to Minimize Them’ (20 July 2006) 5, available at www2.tau.ac.il/InternetFiles/Clinican/ UserFiles/File/clinican%2013/hitargenut%20kenes%20a.doc (in Hebrew). 22 Personal communication with Meron Rapoport, journalist (8 July 2010). 23 F Frisch, ‘The IDF Admits: Too Many Soldiers Shoot for No Reason’ Ynet (10 January 2001), on IDF research revealing increasing dehumanization due to protracted service in the occupied territories (not specifically in the crossings); in 2004 the IDF produced a training kit for checkpoints, H Greenberg, ‘New in the IDF: A Training Kit for Serving in the Checkpoints’, Ynet, 7 September 2004. An increase in the level of violence was reported in military research conducted in 2007: Y Yehoshua, ‘The Abuse is Revealed’, Yediot Aharonot, 16 December 2007. 24 Highlights of the Conclusions of the Spiegel Committee, publicised 15 August 2004, NRG (24 August 2004), available at www.nrg.co.il/online/1/ART/772/991.html (in Hebrew).

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would be accompanied by professionalisation of their operation, and thereby improve the level of service offered to Palestinians crossing through the crossings.25 Civilianisation and privatisation of the crossings are often referred to today as geared towards ‘awareness of service quality’, efficiency and improving ‘the level of service to Palestinian civilians’.26 For example, there is a preference for private security personnel who have a spoken or written command of Arabic, so that they can communicate better with the Palestinian population and read documents.27 The civilianisation of the crossings goes hand in hand with their technological and physical upgrading, a process that has been expedited by the construction of the separation barrier.28 The construction of the new terminals and their civilianisation are part of an informal government campaign to establish the crossings as future international terminals.29 This is more clearly the case with respect to crossings along the fence separating Israel from the Gaza Strip, which, since the 2005 disengagement, Israel regards as an international border.30 Commentators point to other, less-articulated benefits accruing from outsourcing state functions, such as impunity with respect to violations of international humanitarian law and human rights. It is argued that such violations are less visible when carried out by employees of PSCs, because the latter are not bound by the same transparency standards as the state; private security personnel are more easily manipulated into silence because, unlike soldiers, particularly reservists who are also no longer subject to disciplinary measures, the livelihood of PSC personnel depends on compliance with their employers’ instruction.31 Furthermore, if breaches by PSC personnel are exposed, the state can more easily

25 Ministry of Finance, Israel Budget, 2009–2010 Budget, Highlights of the Ministry of Defence’s Budget Proposal, 93, available at www.mof.gov.il/BudgetSite/StateBudget/ Budget2009/MinisteriesBudget/Safety/Lists/List/Attachments/1/C1.pdf (in Hebrew). 26 Lt Col Ofer Hindi, Head of the Seam Line Project, Central Command, Ministry of Defence, Knesset Committee on Internal Affairs and Environmental Protection, Protocol No 17 (20 June 2006), 18. 27 Betzalel Treiber, Head of the Passages Management, Ministry of Defence, Knesset Committee on Internal Affairs and Environmental Protection, 16th Knesset, Protocol No 495 (27 July 2005), 16. 28 Alon Yifrach, Ministry of Defence, Knesset Committee on Internal Affairs and Environmental Protection, 16th Knesset, Protocol No 485 (25 July 2005), 27. 29 Treiber, n 27 above, 2. 30 The Entry into Israel (Border Stations) Order, 1987 (as amended) already lists the Erez, Kerem-Shalom, Sufa and Karni crossings between Israel and the Gaza Strip as border stations. 31 This is illustrated by the activity of ‘Breaking the Silence’ (Shovrim Shtika), an organisation of veteran Israeli soldiers that collects testimonies of soldiers who served in the occupied territories during the Second intifadah in order to document and expose the abuse of power that has become prevalent in the military. See www.shovrimshtika.org/ index_e.asp.

Israel 439 distance itself from the immediate perpetrators. It is argued that this impunity is politically and economically advantageous.32 In light of the stated goals of civilianisation and privatisation of the crossings, the following priorities have been established, in descending order of urgency:33 1. Crossings in the Jerusalem area. Priority was given to those because they are relatively complex, and therefore considerations of quality of service are particularly strong. In addition, it was felt that, symbolically, crossings in the vicinity of the state capital should have priority in civilianisation. 2. Crossings for the passage of goods. 3. Crossings where interaction with the Palestinian population is relatively extensive. 4. Secluded crossings, crossings that are easy to operate and crossings where only Israelis may cross.

V. OP E R AT I ON OF THE C IV ILIAN ISED C ROSSIN GS

In 2005, the Ministry of Defence established the Crossings Administration, a unit tasked with setting up crossings, equipping them with sophisticated technologies and staffing them, in order to gradually replace the units of IDF soldiers, policepersons and border guards that had until then been running the crossings. In practice, outsourcing to PSCs began only in 2006.34 The delay was caused by disputes between the Ministry of Defence, the Israel Security Agency35 and the Israeli police, on the structure and management of the newly formed crossings. The intention is to expand the process of civilianisation to checkpoints within the West Bank, but this has not yet taken place. At the time of writing, the crossings are not actually privatised, because the overall management remains in the hands of the Ministry of Defence (through the Crossings Administration). It is intended that they will eventually be managed by a statutory National Crossings Authority, which has yet to be established; it is therefore more accurate 32 N Gordon, ‘Outsourcing Violations: The Israeli Case’ (2002) 1 Journal of Human Rights 321, 324. See also M Rapoport, ‘Outsourcing the Checkpoints’, Haaretz, 2 October 2007, available at www.haaretz.com/magazine/week-s-end/outsourcing-the-checkpoints-1.230416. 33 Betzalel Treiber, Head of the Passages Management, Ministry of Defence, Knesset Committee on Internal Affairs and Environmental Protection, 16th Knesset, Protocol No 527 (16 November 2005), 6. 34 E Maoz, ‘The Privatization of Road-Blocks and Late Occupation’ (10 October 2008) , available at http://hagada.org.il/hagada/html/modules.php?name=News&file=article& sid=6208 (in Hebrew). 35 Previously referred to as the General Security Service.

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to speak of civilianisation, namely removing tasks from the responsibility of uniformed military and police persons, to the (civilian) Ministry of Defence, and of outsourcing, namely relying on privately contracted persons to act under instructions of state authorities. The process also involves the outsourcing of all but the superior management positions to PSC employees. Exceptional among the crossings is the informal Nahal Oz crossing to the Gaza Strip, which is not recognised under law as an entry point into Israel and is not meant to serve for movement of individuals, but which until recently served as a petrol terminal. It was operated exclusively by a private petrol company (Dor Alon Energy Ltd) and was not guarded. In 2008, a terrorist attack took place in the Nahal Oz crossing, raising the question of whether the responsibility for guarding it lay with the company or with the IDF.36 In the crossings already managed by the Ministry of Defence through the Crossings Administration, the overall authority lies in the hands of an employee of the Crossings Administration, who is a civil servant. In other crossings, overall authority lies in the hands of other state authorities—the police and the IDF. In addition, the crossings are operated by numerous bodies: the Ministry of Defence (in the West Bank), the police (around Jerusalem), the Ports Authority (in the crossings to the Gaza Strip), the Army, the Airport Authority, the military police, the border guards, the Israeli Security Agency and PSCs. The administrative hierarchy and respective responsibilities of the various governmental bodies are regulated by a classified decision of the government’s security cabinet.37 However, NGOs complain that, at least to outsiders, the professional and administrative hierarchies are far from clear. The corporations providing personnel for staffing the crossings do not fall within the ordinary sense of ‘private security companies’ because they provide personnel rather than the services themselves. The personnel are instructed by the various governmental authorities. These corporations, engaged after winning governmental tenders, rarely limit their services to security personnel, and characteristically also offer cleaning and maintenance staff to a variety of clients. However, for convenience they will be referred to here as PSCs. There is great variation in the operation of the various crossings. Private security personnel serve in crossings at three different capacities, although formally they all have the same status. Some are managerial positions of various types, administrative, security or logistic. Others perform security functions, similar to that which is performed within

36 H Greenberg, ‘Who’s in Charge of Nahal Oz Security?’, Ynet, 4 October 2008, available at www.ynet.co.il/english/articles/0,7340,L-3530037,00.html. 37 Decision B/43 of 1999 of the Ministers’ Committee for Defence, as amended from time to time.

Israel 441 Israel. A third category of private security personnel are system operators, trained in technological skills and service provision.38 In some crossings (eg Irtakh and Eyal, near Kalkilia), the population is no longer in direct contact with any public authorities, but only with private security personnel. The soldiers and public officials working in these crossings sit inside the built terminals, and are invisible and inaccessible to the Palestinian population crossing through. In other crossings, the population comes into contact with private security personnel handling documentation while military personnel secure the perimeter; in yet others, the documentation is handled by border guards or police personnel, while private security personnel secure the perimeter (eg in the area surrounding Jerusalem, where the overall authority lies in the hands of the police rather than the IDF).39 In practice, the civilian population going through the crossings often still comes into contact with military personnel and the police rather than, or in addition to, civilians.40 In a survey conducted in 2003 (prior to the civilianisation of the crossings) regarding the profile of security personnel operating within Israel, it was found that security personnel are typically young (under 30), single and Jewish, with a relatively large percentage of students, new immigrants and women (15%). There is no current information as to whether the profile of personnel at the crossings corresponds to these findings, although it is likely that there are fewer women. As the role of PSCs becomes increasingly perceived as one of ‘defence’ against terrorism rather than ‘policing’ against domestic crime, the percentage of Arabs (Israeli citizens) employed in security services decreases.41 More recent observations suggest that private security personnel characteristically hail from the socio-economic periphery of Israeli society. Although there are no official figures, it is argued that they are mostly Druze and Bedouins, native Israelis of Middle Eastern origin, and immigrants from Ethiopia and the former USSR.42 Given the preference for personnel with command of Arabic at least in some positions, the claimed predominance of the former population groups may be deliberate rather than the consequence of socio-economic factors. Opinions are divided as to whether PSCs offer better service than the military. Volunteers of Machsom Watch (a women’s NGO which reports on the conduct of state authorities at crossings and checkpoints) say that one of the major effects of the civilianisation and privatisation is the 38

Treiber, n 27 above, 6–7. Personal communications with Hanna Aviram, Machsom Watch volunteer (24 June 2010); Hanna Berg, Machsom Watch volunteer (30 June 2010); Adv Oded Brook, Deputy Legal Advisor, Ministry of Internal Security (4 July 2010). 40 State Comptroller’s Annual Report No 59A (for 2008) (2009), 69. 41 Handels, above n 6, 9–10. 42 Maoz, n 34 above. 39

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diminished sense of accountability of checkpoint personnel. First, it is argued that the civilian management of the crossings (governmental or, at the lower levels, private) considers itself a ‘service provider’, which operates as a commercial enterprise and is less cognisant of its responsibility towards the population in view of its formal powers.43 This results in a rigid approach, in circumstances where military authorities have in the past been more forthcoming. Secondly, the institutional remoteness of the civilian management is exacerbated by physical remoteness, deliberately effected by the design of the terminals. While the built-up terminals offer the Palestinian population relief from physical hardship during the long wait (shielding it from cold and heat, enabling access to toilets and providing privacy), they also place obstacles to accessing the management of the crossings when problems arise that require intervention by higher echelons.44

V I . P S C AC TIV ITY AN D THE LAWS OF ARMED C ON FLIC T

PSC activity is governed by a host of bodies of law. According to Israeli jurisprudence, since the second intifada began in 2000, a continuous state of armed conflict has existed between Israel and the various armed groups that operate from the West Bank and Gaza Strip. Specifically, this armed conflict is governed by the law relating to international armed conflict.45 The relevant case law further provides that the applicable ius in bello consists of both the laws relating to combat in an international armed conflict and the laws of belligerent occupation. Furthermore, ius in bello is lex specialis; and where it leaves a lacuna, the lacuna can be filled by means of international human rights law. In addition to the provisions of international law governing an armed conflict, the basic principles of Israeli public law are likely to apply. These basic principles are ‘carried by all Israeli soldiers in their backpacks’ and accompany them wherever they go.46 43

Personal communication with Hanna Berg, n 39 above. ibid. See also G Levy, ‘Twilight Zone/Charlie’s Angels’, Haaretz, 1 September 2007, available at www.haaretz.com/hasen/spages/899356.html. 45 The Supreme Court explained that ‘According to this approach, the fact that the terrorist organizations and its members do not act on behalf of a state does not make the struggle merely an internal matter of the state. Indeed, in today’s reality a terrorist organization may have a considerable military capacity, sometimes exceeding even the capacity of states. Dealing with these dangers cannot be limited merely to the internal affairs of a state and its criminal law.’ Targeted Killing case, above n 2, [21]. While both statements may be true, they are not directly relevant. The distinction between an international and a non-international conflict is not a consequence of the military capacity of the non-state actor; and designating a conflict as non-international does not render it immune to international legal regulation. 46 Targeted Killing case, n 2 above, [18], [21]. 44

Israel 443 However, not every action involving Israeli forces and Palestinians is governed by the laws on the conduct of hostilities. Even with respect to actions of the IDF in the West Bank, a distinction is made between law enforcement (policing) functions and combat functions. While the primary legal framework is IHL as it relates to occupied territory, the IDF view is that ordinary policing activities carried out by Israeli soldiers in the West Bank are subject to the law enforcement paradigm—to which international human rights law applies more directly.47 The authority for such law enforcement activities lies in Article 43 of the Hague Regulations. According to this view, each function of the military has to be examined individually in order to ascertain whether it is a combat operation or a law enforcement one. The operation of the crossings, whether by soldiers or by PSCs and their employees, is perceived as a law enforcement function similar to those of a police force, rather than as a combat function. It is therefore governed by criminal law and by international human rights standards more directly than by the laws on the conduct of hostilities. In this respect, the law governing the operation of PSCs in the crossings to the West Bank does not differ significantly from the law governing the operation of PSCs within Israel, despite the fact that the majority of the crossings are outside sovereign Israeli territory. In the few cases where actions of private security personnel have been investigated, they were considered within the framework of Israeli criminal law (which is applicable also outside Israeli territory, as discussed below), rather than within the framework of the laws of armed conflict.48 Prominent human rights lawyer Michael Sfard suggests that the state is willing to examine the conduct of private security personnel in the light of criminal law, but if the conduct in question had involved IDF soldiers, the state would likely have claimed it to be an act governed by the laws of armed conflict.49 This view lends support to the claim that the state relies on the status of private security personnel to distance itself from violations of law which it feels bound to defend when committed by soldiers. However, whether the state would indeed claim the applicability of the laws of armed conflict to similar conduct by soldiers remains speculative as the question has never arisen directly in

47 Personal communication with Lt Col (Res) David Benjamin, Adv, former Head Legal Advisor to the IDF for the Gaza Strip (8 July 2010); see also K Watkin, ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict’ (2004) 98 American Journal of International Law 1. 48 No reference was made at any point to the possibility that at issue are crimes under international law. This is not unique. Israeli law does not contain a category of ‘war crimes’ or other international crimes. Soldiers are prosecuted under domestic law irrespective of whether the act in question may constitute an international crime. 49 Personal communication with Adv Michael Sfard, attorney specialising in litigating humanitarian law violations by Israeli security forces (19 June 2010).

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court. Police action within Israel is generally governed by international human rights law and criminal law.50 It is worth noting that, even if the law of armed conflict applies to the operation of the crossings rather than human rights and criminal law, under Israeli jurisprudence the distinction between the two paradigms is less than clear. In addition to general doctrinal questions on the parallel application of the two paradigms, elements of international human rights law seem to have permeated into international humanitarian law as interpreted by the Israeli court. For example, in the Targeted Killing case, the High Court of Justice determined that the practice was governed by the law of armed conflict. Nonetheless, President Emeritus Barak ruled that, in light of the principle of proportionality, a civilian (directly participating in hostilities) may not be the target of a lethal attack if a less injurious means is available.51 By implication, in determining whether a certain action was permissible, the standard of conduct demanded of security personnel, particularly private security personnel, might not necessarily be IHL as ordinarily understood when applied to regular military forces. A separate question theoretically arises as to the international legal status of private security personnel, namely whether they are civilians or combatants;52 and if they are civilians, whether they directly participate in hostilities in terms of Additional Protocol I Article 51(3), which, according to the Supreme Court, reflects international customary law and therefore binds Israel despite the fact that it is not party to Additional Protocol I.53 This question, while of academic interest,54 has little significance in the specific instance of Israeli forces. The status of a person directly participating in hostilities does not endow any powers on that person. Rather, the classification of a person as a combatant, a civilian directly participating in hostilities or a civilian tout court goes primarily to his or her immunity to intentional targeting, as only combatants and persons directly participating in hostilities may be intentionally targeted. However, the rules on targeting apply to attacks carried out by persons 50 Although, under Israeli law, the wide definition of ‘combat action’, which applies also to counter-terrorism activity, can apply also to incidents within Israel under certain circumstances. The matter of state immunity is discussed below. 51 President Emeritus Barak said that if a terrorist may be arrested, interrogated and put on trial, this is preferable to the use of force. Targeted Killing case, n 2 above, [40]. However, such less-injurious means would achieve a different goal than use of lethal force (in a nutshell, legal proceedings are retributive rather than preventive). 52 Private security personnel are subject to a hierarchical command, must wear a uniform, must wear their weapons openly, and must regard themselves as bound by the laws of armed conflict. 53 Targeted Killing case, n 2 above, [30]. 54 Program on Humanitarian Policy and Conflict Research, Harvard University, ‘Private Security Companies in the Occupied Palestinian Territories: An International Humanitarian Law Perspective’(2008) 8–9, available at http://opt.ihlresearch.org/_data/n_0013/ resources/live/briefing3734.pdf (hereafter HPCR).

Israel 445 who are themselves recognised as combatants under international law. The potential attackers of Israeli private security persons are members of Palestinian organisations who are not combatants under international law.55 Arguably, if the question of the status of PSC personnel did arise for whatever reason, it is likely that the state would argue that they are civilians not directly participating in hostilities, since their function is a law-enforcement one rather than a combat one.

V I I . R E G UL AT I ON OF THE C ON DUC T OF P RIVATE S E C UR I T Y P E R S ONS UN DER ISRAELI LEGISLATION

PSCs are subject to licensing by a statutory committee, under a law regulating the provision of security services.56 Their conduct is further governed by contractual relations with client institutions. Since 1998, the security operations of specific, enumerated public bodies and public utilities providers are regulated by law.57 However, until 2005 private security persons had no legal authority to demand that individuals identify themselves, to search personal property or to detain a person. In 2005, the Powers for Maintaining Public Security Law, 2005 was enacted. The Law provides powers for use in ‘order to maintain public security against terrorist activity and violence’;58 it is thus directed primarily towards the threat of terrorist activity rather than towards ordinary criminal violence.59 Its purpose was to create an efficient and uniform regulatory framework for security services, with respect to licensing, control, training and standardisation.60 The Law also forms part of a general move to replace provisional legislation which applied only during a declaration of an emergency situation (such a declaration has been in force in Israel since its establishment), by permanent legislative instruments. In short, the Law largely entrenches practices that had already been in place,61 but these actions are now carried out under state authorisation. 55 They are not the regular forces of a party to the conflict, they do not carry distinct insignia and they do not operate, either individually or as an organisation, in accordance with the laws of armed conflict; see Geneva Convention III, Art 4 and Additional Protocol I, Art 44; Criminal Case 1158/02 (Tel Aviv) State v Berguti, District Court of Tel Aviv Judgment of 19 January 2003, upheld in Targeted Killing case, n 2 above, [24]–[25]. 56 Law on Private Investigators and Security Companies, 1972. 57 Law for the Regulation of Security in Public Bodies, 1998. 58 Powers for Maintaining Public Security Law, 2005, Art 1. 59 Knesset Committee on Internal Affairs and Environmental Protection, 16th Knesset, Protocol No 425 (19 May 2005), 14–15. 60 Yuri Stern, Chairman, Knesset Committee on Internal Affairs and Environmental Protection, 16th Knesset, Protocol No 46 (10 July 2003), 1. 61 Adv Rachel Gottlieb, Deputy Legal Advisor, Ministry of Internal Security, Knesset Committee on Internal Affairs and Environmental Protection, 16th Knesset, Protocol No 46 (10 July 2003), 2.

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The Powers for Maintaining Public Security Law, 2005 regulates the powers of four types of persons: soldiers, policepersons, public officers and (private) security personnel authorised under the Law. The Law authorises the Minister of Internal Security to grant the powers under the Law to a person, ie a private security person, if the Minister is convinced that this authority is necessary for security activity and maintenance of public safety in a location to which the public has access. In practice, the Minister does not designate individual persons to whom the powers are granted, but instead designates types of locations, where any authorised security personnel may then operate under the Law. On this basis, the Minister has authorised the operation of security personnel in public and private transport services, shopping malls and shops over a certain size, restaurants and establishments serving alcohol, hospitals and places holding medical equipment and products, entertainment halls, water attractions, banks, natural gas and petrol depots, open areas under regional government jurisdiction, police stations and more. A person may be authorised under the Law to act as a security person if he or she is a citizen or permanent resident of Israel; is physically fit; holds a permit to possess a weapon; has had 12 years of schooling; and has received ‘appropriate training in the field of security and in the field of the authorities granted’ under the Law ‘in light of the type of location where those authorities would be used’.62 PSC employees are trained by various authorities and in a variety of tasks. For private security personnel operating in Israel, training is under the overall guidance and supervision of the police. The Ministry of Defence is expected to guide and monitor the training of private security personnel operating in the crossings, but it is not clear to what extent it exercises this responsibility.63 Some of the training is itself outsourced to private companies specialising in security training.64 Within Israel, private security personnel have powers similar to those of soldiers, policepersons and public officers: they may demand that a person seeking entry to the designated location identify him- or herself, and may conduct a body search for that purpose at the entrance to, and the vicinity of, the places indicated in the Law. If a person refuses the search, a private security person may prevent the person’s entry, including through use of reasonable force. If a person refuses the search and the private security person reasonably suspects that the person is carrying a weapon illegally or is about to make illegal use of a weapon, the private security person may also conduct the search despite the

62 Powers for Maintaining Public Security Law, 2005, Art 8(7) and Art 13(3)(b) amending the Implementation Law. 63 Personal communication with Meron Rapoport, journalist (8 July 2010). 64 ibid.

Israel 447 refusal, including through use of reasonable force.65 A private security person may also detain such a person until the arrival of a policeperson. Unlike soldiers, however, private security personnel may not detain a person on the sole ground of reasonable suspicion that a person may commit an offence. The powers of private security personnel were limited in this way because they are private civilians who should not be in a position to exercise excessive power over other civilians.66 Furthermore, private security personnel are not subject to disciplinary measures like soldiers and policepersons.67 Another reflection of the special character of private security operations is the provision in Article 1 of the Law, according to which use of the powers under the Law would be ‘in a location and means which will guarantee maximum protection of human dignity, privacy and rights’. This provision is superfluous in the sense that all legislation and use of executive power is subject to the constitutional right to human dignity.68 It was nonetheless adopted to emphasise the need to protect human dignity in legislation that is addressed to private actors.69 The 2005 Law concerns primarily security services within Israel,70 but it also addresses the security services in the crossings. Initially, the military legal authorities dealing with the occupied territories were apprehensive about breaking the state’s monopoly on the use of force and by outsourcing security functions, whether in the crossings or in other contexts (such as securing commodity trucks entering Israel from the Gaza Strip before 2005), to private hands which had not been fully qualified.71 Accordingly, it was proposed to regard the powers of private security personnel as limited to those available under ordinary criminal law to any civilian, such as performing a citizen’s arrest under certain circumstances72 and

65

Powers for Maintaining Public Security Law, Art 5(b). Adv Rachel Gottlieb, Deputy Legal Advisor, Ministry of Internal Security, Knesset Committee on Internal Affairs and Environmental Protection, 16th Knesset Protocol No 430 (26 May 2005), 3, 6. 67 Adv Miri Frenkel-Shorr, Legal Advisor to the Knesset Committee on Internal Affairs and Environmental Protection, Knesset Committee on Internal Affairs and Environmental Protection, 16th Knesset Protocol No 430 (26 May 2005), 7. 68 Basic Law: Human Dignity and Liberty, Art 8 provides: ‘There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required’. 69 Adv Rachel Gottlieb, Deputy Legal Advisor, Ministry of Internal Security, Knesset Committee on Internal Affairs and Environmental Protection, 16th Knesset Protocol No 485 (25 July 2005), 6. 70 A similar arrangement to that of the law was adopted for the Israeli settlements in the West Bank, Military Order 1628 (20 January 2009). 71 Personal communication with Lt Col (Res) David Benjamin, n 47 above; Hagai Alon, former advisor to the Minister of Defence, quoted in Rapoport, above n 32. 72 For example, the Criminal Procedure Law (Enforcement Power—Arrests), 1996, Art 75 allows any person to detain another until the arrival of a policeman, including through non-injurious use of force, if the other person is suspected of having carried out an offence 66

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assistance to a policeperson in carrying out an arrest.73 However, during the last stages of drafting the 2005 Law, provisions were added so as to extend its reach also to the crossings. The 2005 Law amends the Law on Implementation of the Interim Agreement regarding the West Bank and Gaza Strip (Adjudication Powers and other Provisions) (Legislative Amendments), 1996 (hereafter the Implementation Law), which regulates passage between Israel and the West Bank and Gaza Strip. The Implementation Law defines ‘crossings’ as locations designated by the Minister of the Interior as points of entry into Israel from the West Bank and Gaza Strip, and exit from Israel to these areas. With respect to crossings, the authority to grant powers to private security personnel also lies with the Minister of Defence.74 The powers of private security personnel in the crossings differ slightly from their powers within Israel. While within Israel their powers are almost identical to those of other categories of security personnel, in the crossings they are more limited. The amended Implementation Law authorises security personnel at the crossings to demand of any person going through the checkpoint to identify him or herself. The private security person may also search the property or vehicle of the person entering or exiting. However, a body search by a private security person may be carried out only under the supervision and monitoring of a policeperson, soldier or civil servant; and a private security person may refuse passage through the checkpoint to a person refusing to be searched only upon authorisation of a policeperson, soldier or civil servant, who must be summoned as soon as possible.75 The Ministers of Internal Security and the Minister of Defence may designate other functions that a private security person may not carry out unless supervised and monitored by a policeperson, soldier or public officer.76 The requirement of authorisation or monitoring by a public officer again derives from the fact that private security personnel are not subject to disciplinary measures for their actions.77

of violence, a crime, a theft or an offence which caused significant damage to property. Such detention may not last more than three hours. 73

Personal communication with Lt Col (Res) David Benjamin, n 47 above. Given that the powers of the executive are limited to Israeli territory, one might query why the authority to designate points in territory outside Israel is vested in the Minister of the Interior rather than with the Military Commander. 75 Law on Implementation of the Interim Agreement regarding the West Bank and Gaza Strip (Adjudication Powers and other Provisions) (Legislative Amendments), 1996, Art 11(c). 76 ibid, Art 11(a1). To date there have been no such designations. 77 Adv Miri Frenkel-Shorr, Legal Advisor to the Knesset Committee on Internal Affairs and Environmental Protection, Knesset Committee on Internal Affairs and Environmental Protection, 16th Knesset Protocol No 495 (27 July 2005), 13. 74

Israel 449 V I I I . R ULES OF EN GAGEMEN T

Private security personnel are instructed on rules of engagement (RoE) by the police and the IDF, as appropriate, in light of their specific activity. At least initially, the intention was for the RoE in the crossings to be similar to those applicable in Israel. The RoE presently applicable to the various security services within Israel, in the West Bank and in the crossings, including the RoE applicable to PSCs, are classified. A number of incidents illustrate the significance of the uncertainty surrounding the RoE of private security personnel: 1. In August 2007 an Israeli Arab national, Ahmed Hatib, seized a weapon from a private security person in the old city of Jerusalem and ran away. The private security person chased him, and at some point grabbed Hatib, who shot him and continued to run away. A gun battle ensued between Hatib and the private security person’s patrol partner, who eventually wounded Hatib mortally. According to bystanders, after Hatib was shot the private security person performed a ‘kill confirmation’ procedure. However, sources involved in the investigation said that the private security person ‘confirmed that the terrorist was neutralized’. The distinction is a fine one, but significant: confirmation of neutralisation stems from concern that a person who continues to hold a weapon could, despite being seriously wounded, make a final effort to use the weapon.78 A kill confirmation procedure entails shooting from a short distance to ensure that the potential perpetrator is dead. The police conducted a criminal investigation, concluding that the security personnel acted ‘professionally’ and in accordance with the procedures. This brought to the fore the question of the RoE applicable to private security personnel, and the extent of the obligation of the PSC and the police to investigate the incident. 2. In June 2009 an unarmed individual (later found to be an Israeli national, apparently mentally unstable) arrived at the Erez checkpoint to the Gaza Strip, and began to climb the fence into Gaza. The private security forces called on him to halt, but he did not heed their calls and proceeded to climb the fence. The private security forces opened fire. They hit the man in the leg’s main artery, causing him to bleed to death. It is not clear whether the order to shoot was given by the PSC senior officer or by the IDF commander. Given that a person running away from Israel does not constitute a direct threat, the 78 J Liss, J Khoury and Y Stern, ‘Film of Jerusalem Attack Counters Family Claim that Assailant was Innocent’, Haaretz, 12 August 2007, available at www.haaretz.com/ print-edition/news/film-of-jerusalem-attack-counters-family-claim-that-assailant-wasinnocent-1.227329.

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basis for opening fire has been questioned. The IDF and the Defence Ministry said that, while the incident was undoubtedly irregular, an initial probe shows that the force’s actions were impeccable.79 Official security sources reportedly noted that the RoE in such cases are similar to the RoE in the case of attempted infiltration into Israel, since climbing the fence could be an attempt to distract security forces as part of broader terrorist activity. However, it has also been suggested that the shooting was aimed at avoiding the potential kidnap of an Israeli citizen by Palestinian forces.80 Both incidents illustrate the difficulty in transferring the authority to use deadly force on to civilian—and private—hands, since the situations that present themselves are complex both militarily and morally. Any discussion of the RoE of private security persons is nonetheless curbed by the fact that it is not clear whether the RoE applicable to regular security forces apply equally to private security persons, nor what the RoE for regular security forces are.

I X. E NF OR C EMEN T AN D AC C OUN TABILITY

PSC personnel are not generally considered civil servants, and the state is not their employer. During the consideration of the 2005 Law by the parliamentary committee, a number of questions were raised on the implications of their legal status for the enforcement of legal sanctions if they act in excess of their powers. The matter remained unaddressed. Since the powers of PSC personnel are more limited than those of a policeperson or a soldier, it was suggested that there is less urgency in regulating these issues since the probability of legal suits being submitted against PSC personnel was low.81 In reality, there have been numerous incidents involving the use of force by PSC employees against civilians.82 A practical difficulty is that, as noted above, one of the consequences of the multiplicity of authorities involved in the running of the crossings is the lack of a clear addressee for complaints and problems. Lawyers

79

H Greenberg, ‘Israeli Climbing Fence into Gaza Shot Dead’, Ynet, 12 July 2009. Report by Nissim Keinan, quoting the crossing’s commander, and personal communication with Brig Gen (Res) Zvi Fogel, Former head of the Southern Command Staff, Reshet Bet (12 July 2009). On the rules of engagement allegedly permitting use of force in such circumstances see S Leibovich-Dar, ‘The Hannibal Procedure’, Haaretz, 21 May 2003. 81 Adv Miri Frenkel-Shorr, Legal Advisor to the Knesset Committee on Internal Affairs and Environmental Protection, Knesset Committee on Internal Affairs and Environmental Protection, 16th Knesset Protocol No 425 (19 May 2005), 9–10. 82 HPCR, above n 54, 3–4. 80

Israel 451 representing victims of abuse at the crossings report difficulty in finding addressees for the complaints.83

A. Disciplinary Measures In principle, complaints relating to the conduct of PSCs in the crossings may be submitted to the military commander or civil servant acting as director of the checkpoint. However, it is not clear what authority the director has to investigate and discipline PSC employees. PSC employees are not generally subject to disciplinary measures by any of the various security authorities.84 It appears that the contracts with the police (who manage the crossings in the Jerusalem area) allow the police to take measures against the PSC when a PSC employee acts outside his or her powers; but it is not clear what these measures are and whether they are available against the PSC or directly against the employee.85 The police maintain a procedure for investigating complaints about the conduct of security personnel in establishments for which the police are tasked with professional guidance, ie public institutions as well as the crossings.86 This mechanism appears to address complaints alleging criminal conduct. There is apparently no mechanism for addressing complaints on violations of human rights or other non-criminal matters,87 or complaints regarding the conduct of security personnel in non-public institutions.

B. Civil Liability (i) State Liability Given the state authorities’ tight control over, and guidance of, the conduct of private security personnel, it is likely that the state can be held vicariously liable for their acts, despite the fact that it is by no means their employer.88 However, the particular circumstances of action in the crossings may give rise to immunity of the state from liability. Various statutory provisions on exemption ought to be examined. 83 Personal communications with Adv Gaby Lasky, (30 June 2010); Adv Michael Sfard (19 June 2010). 84 Adv Rachel Gottlieb, Deputy Legal Advisor, above n 66, 7. 85 Personal communication with Adv Tali Nir, Association for Civil Rights in Israel (7 July 2010). 86 Procedure 03-300-053 of 28 March 2007 (in Hebrew, on file with the author). 87 Personal communication with Adv Lila Margalit, Association for Civil Rights in Israel (6 July 2010). 88 Torts Order, Art 14.

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The Civil Tort Law (Liability of the State), 1952 exempts the state from liability for combat action by the IDF.89 The Israeli Supreme Court has distinguished between combat action (to which immunity applies) and law enforcement (to which it does not) according to the purpose of the operation, its location and duration, the identification of the military forces involved, and the military force used during the operation.90 Since the IDF regards the operation of the crossings as a law enforcement activity, the state would find it difficult to claim immunity for torts committed in the course of that operation. However, a 2002 amendment to the Civil Tort Law defines ‘combat action’ as ‘including any action conducted to combat terrorism, hostile actions, or insurrection, and also any action for the prevention of terrorism, hostile actions, or insurrection committed in circumstances of danger to life or limb’.91 This amendment likely excludes many potential suits, since the entire setup of the crossings is aimed at preventing the infiltration into Israeli of terrorists. Nonetheless, the applicability of the combat immunity exception to acts of private security personnel is arguable: the provision on combat immunity applies to ‘the IDF’. The reference in another article in the Civil Tort Law to the IDF as inclusive of ‘other defence forces of the state of Israel’92 implies that, in the context of combat immunity, the term ‘IDF’ should be interpreted narrowly. Accordingly, the combat immunity exception is unlikely to cover acts of private security persons. Another exemption from liability available to the state follows a 2005 amendment to the Civil Torts Law, according to which the state is immune to liability for torts caused in the West Bank as a result of action by the IDF, ‘including other defence forces of the state of Israel operating in the area’.93 In light of the fact that private security personnel operate under IDF instruction and supervision, it is reasonable to interpret this provision as providing immunity to the state for acts of private security personnel for which it would otherwise be liable on the basis of vicarious liability. Finally, the 2005 amendment to the Civil Torts Law extends the immunity of the state to claims for injuries sustained by nationals of enemy states (unless their stay within Israel is legal), by persons who are active members of a terrorist organisations, or by persons who were injured while acting as agents of an enemy state or terrorist organisa-

89

Civil Tort Law (Liability of the State), 1952, Art 5. Bani Uda v State of Israel CA [Civil Appeal] 5964/92, Supreme Court of Israel sitting as a court of appeal, Judgment of 20 March 2002. 91 Israeli Civil Tort Law (Liability of the State), 1952, Art 1. 92 Civil Tort Law (Liability of the State), 1952, Art 5A(1). 93 ibid. 90

Israel 453 tion.94 Residents of the West Bank and Gaza Strip are not ‘nationals of enemy state’, as these areas are not states and their residents are mostly either stateless or nationals of Jordan, which is not an enemy state. However, the government is currently proposing an amendment to the Law, which would expressly expand the exemption from liability to injuries sustained by residents of the Gaza Strip.95 (ii) Individual and Corporate Liability In the early stages of the parliamentary debate on the powers for maintaining Public Security 2005 Law, the question was raised as to the individual civil liability for torts committed by private security personnel. It was assumed that private security persons are vulnerable to legal action similar to all civilians. It should be noted, however, that if a court holds that under general tort law the state is responsible for the acts of a private security person, but that the Civil Tort Law (Liability of the State), 1952 exempts it from liability for whatever reason, the individual private security person would also be immune, under the same Law.96 If the individual private security person is liable for a tort, the PSC itself is vicariously liable under general tort law.97 In addition, the Ministry of Internal Security noted that PSCs may only operate under licence by the Ministry of the Interior, and the terms of this licensing may stipulate expressly the responsibility of the company for the employee’s conduct.98 However, concern was expressed that PSCs could easily evade their liability. On the one hand, it was suggested by the Association for Civil Rights in Israel that a mechanism for the Minister of Internal Security (responsible for implementation of the Law) to consider additional remedies for victims of excesses of authority should be added. On the other hand, it was argued that private security persons need additional protection from civil liability, similar to that accorded to poli94 Israeli Civil Tort Law (Liability of the State), 1952, Art 5B. The immunity is qualified, principally with respect to certain injuries caused to a person while under custody of Israel. second supplement to the Law. 95 Which was declared hostile territory on 19 September 2007, available at www.mfa.gov. il/MFA/Government/Communiques/2007/Security+Cabinet+declares+Gaza+hostile+terr itory+19-Sep-2007.htm. The 2005 amendment also expanded the immunity to claims of residents of ‘conflict zones’ (areas outside Israel that are designated by the Israeli Defence Ministry as areas in which active combat occurred), and provides that the state would not be liable for any action taken by the defence forces within such conflict zones. In December 2006, the Israeli Supreme Court declared this expansion unconstitutional. HCJ 8276/05 Adalah v Government of Israel, Supreme Court of Israeli Judgment of 12 December 2006, available at http://elyon1.court.gov.il/files_eng/05/760/082/a13/05082760.a13.pdf. 96 Civil Tort Law (Liability of the State), 1952, Art 7B. 97 Personal communication with Adv Dana Aloni-Nak, Legal Advisor of Sheleg Lavan Ltd, a company providing security and other services (July 2010). 98 Adv Rachel Gottlieb, above n 66, 13.

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cepersons. The parliamentary committee deferred the discussion at least until the powers of the private security personnel were clearly defined.99 In 2008 the Law on Private Investigators and Security Services, 1972 was amended, and it now makes the licensing of PSCs conditional upon their providing a financial guarantee or insuring the corporation and its employees against claims for damages by victims of acts or omissions of the corporation’s employees.100

C. Criminal Responsibility Israel’s extraterritorial prescriptive jurisdiction under the Penal Law 1977 is extensive. Israeli criminal law is applicable to offences committed abroad by a person who was, at the time of commission or subsequently, an Israeli citizen or resident, if they are offences punishable by more than three months’ imprisonment.101 In addition, Israeli criminal law applies to offences which Israel has undertaken to prosecute under international conventions.102 This includes grave breaches of the Geneva Conventions, to which Israel has been a party since 1952.103 Accordingly, private security personnel operating within Israel, in the crossings or elsewhere, are punishable in Israel for most offences under Israeli criminal law. Prosecution for an offence committed abroad is conditional upon confirmation of the Attorney General that there is public interest in such prosecution.104 The question arose in Israeli courts whether a private security person may be regarded as a civil servant or public officer for the purposes of particular offences in which such status is an element. The matter arose with respect to a PSC team leader working in the Ministry of the Interior in East Jerusalem, indicted for bribery. Under the Penal Law, a person may be regarded as a ‘public officer’ for the purpose of this offence if he or she is employed by ‘a corporation providing service to the public’.105 The determination whether a corporation provides a service to the public in this context depends on the nature of the service provided (which is assessed according to the vitality of the service, its nature, the extent of governmental monitoring, the financing of the corporation, 99 Knesset Committee on Internal Affairs and Environmental Protection, 16th Knesset, Protocol No 425 (19 May 2005), 9–11. 100 Law on Private Investigators and Security Services, 1972, Art 19(a1). 101 Penal Law, 1977, Art 15(a). The extraterritorial reach of Israeli penal law extends also on bases other than the identity of the perpetrator, but those are less relevant in the present context. See Penal Law, 1977, Arts 13–17. The personal jurisdiction noted here is subject to other conditions, such as double criminality (with some exceptions). 102 Penal Law, 1977, Art 16. 103 Israel is not a party to the Additional Protocols or to the ICC Statute. 104 Penal Law, 1977, Art 9(b). 105 ibid, Art 290.

Israel 455 the extent of discretion that the corporation has in choosing its clients and the measure of choice that individuals among different corporations providing the service),106 as well as on the extent of contact that the corporation employees have with the population requiring the service, their authority over that population and the extent of coercive power that they have over the population.107 The Supreme Court ruled that the PSC in question provided a service that is in its nature governmental and public,108 and accordingly the PSC employee was a ‘public officer’ for the purpose of the offence of bribery. In the particular case, the functions of the PSC employees included, in addition to securing the area, the organisation of the queue for entry into the offices of the Ministry. In this capacity, the Court noted the large measure of power that the PSC employees wielded over the population seeking the Ministry’s services, and the population’s dependence on the PSC employees.109 This ruling, while applied to a particular PSC in a specific location, appears valid also for many other PSCs and their employees, particularly in the crossings: in all these locations, the population is entirely dependent on the private security personnel (at least as the first port of call), who hold a large measure of coercive power. This population has no alternative choice among service providers. Although PSC employees may only carry out searches or prevent entry upon authorisation from a public officer, this authorisation is obtained outside the view of the civilian population, for whom the PSC employees are the only interlocutors. Thus, as far as that population is concerned, PSC employees also appear authorised to use armed force. In contrast to its finding that the PSC employee was a public officer for the purpose of the bribery offence, the Supreme Court ruled that the defendant was not a civil servant for the purpose of another offence, that of abuse of office. The Court ruled that status as a civil servant of a person who is not directly employed by the government depends on his or her function being central to the Ministry’s function. Since security services were not central to the Ministry of Interior’s function, persons employed in that capacity were not civil servants, despite the public character of the PSC’s role.110 Applying these criteria in the crossings is more complicated, as it depends on the perception of the role of the crossings and on the specific role of the PSC employees there. If one regards the crossings 106 State of Israel v Barak Cohen, CrimApp 10987/07, Supreme Court of Israel Judgment of 2 March 2003, 29–30. 107 ibid, 33. 108 ibid, 37. 109 The Ministry of Interior’s office in East Jerusalem is notorious for the inadequacy of its physical infrastructure and understaffing, HCJ 2783/03 Jabra v Minister of the Interior and Others, Supreme Court of Israel Judgment of 3 December 2003. 110 State of Israel v Barak Cohen CrimApp 10987/07, Supreme Court of Israel Judgment of 2 March 2003, 43.

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as international entry points (as is the image that the Israeli government promotes), then a distinction may be called for between private security personnel who handle documentation and permits and perform the principal governmental function and private security personnel who perform security functions, whose role is subsidiary and even marginal to the regulation of immigration. If, on the other hand, one regards the primary function of the crossings as control of the movement of Palestinians (a view advanced by various non-governmental organisations), then the distinction between the various functions of private security personnel becomes less pertinent. There is no legislative or other formal regulation of superior criminal responsibility for acts of private security personnel. As noted above, the contracts of the police with PSCs regarding the Jerusalem area crossings allow the police chief to take certain measures against the PSC or its employee. Depending on the nature of this power, it may substantiate a position of superiority for the purposes of superior responsibility of police officers under international criminal law. At any rate, it seems that the perception of the military legal authorities is that the superiors of the private security personnel with respect to security functions are the military and police commanders, rather than the direct employers within the PSC.

X . R E G UL ATION OF EX P ORT OF SEC URITY S E RV I C ES BY P RIVATE EN TITIES

In the past, much of the massive Israeli defence industry was government owned, although not part of the IDF. When economic and political realities revealed the vulnerability of the government-owned industry,111 a gradual process of privatisation of the military industry began. The private defence industry remains under tight governmental monitoring. The present section concerns those aspects of the industry which involve human capital. Under Israeli law, the export of know-how and security services is subject to monitoring under the Defence Export Control Law, 2007. This Law replaced earlier regulatory instruments, issued under a 1957 law on the control of products and services.112 The objective of the 2007 Law is ‘to regulate state control of the export of defence equipment, the transfer of defence know-how and the provision of defence services’. The stated criteria for regulation under the law are ‘reasons of national security

111

Seidman, above n 14, 723–24. Control of Products and Services Law, 1957, Order on the Control of Products and Services (Export of Defence Equipment and Defence Know-How), 1986. 112

Israel 457 considerations, foreign relations considerations, international obligations and other vital interests of the state’.113 Defence equipment is defined as ‘[m]issile equipment, combat equipment and controlled dual use equipment’. Defence know-how is defined as information [including technical data or technical assistance] that is required for the development or production of defence equipment or its use, including information referring to design, assembly, inspection, upgrade and modification, training, maintenance, operation and repair of defence equipment or its handling in any other way

as well as technology relating to dual-use equipment; and know-how relating to defence forces, including know-how concerning their organisation, build-up and operation, combat doctrine or training and drill methods defence policy or their methods of action, as well as know-how relating to defence policy anti-terror combat and security methods.114

Defence services are defined as a service relating to defence equipment, including its design, development, production, assembly, review, upgrade, modification, repair, maintenance, operation and packaging, as well as instruction related to said equipment, and service regarding defence know-how, including instruction, training and consulting regarding said know-how.

Israeli citizens or corporations may not be involved in the export of a defence exports outside of Israel (or within Israel to a person who is not an Israeli citizen or an Israeli resident, or to a foreign corporation) unless they have received a defence export licence from the Ministry of Defence.115 The latter is conditional upon registration in the Defence Export Registry, and is granted for renewable periods of two years. The decision on licensing is adopted by a committee comprising representatives of all branches of the Israeli security authorities (the Ministry of Defence, the IDF, the Mossad, the Israel Security Agency and the police) as well as the Ministry of Foreign Affairs, which holds a near-veto power on the final decision.116 When applying the statutory guidelines for licensing, the committee considers the intended end users of the export as well as potential intermediaries. Its decisions are based on consideration of Israel’s national security and export interests, as well as of relations with the government in question and with third states, and of Israel’s international legal obligations. Consequently, requests for defence export for non-state actors are by and large rejected, since 113 114 115 116

Both quotes are from Art 1 of the Export Defence Control Law, 2007. Export Defence Control Law, 2007, Art 2. ibid, Art 15(a)(3). ibid, Art 26.

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military assistance to non-state actors (such as rebels and insurgents) would be a violation of Israel’s obligation not to intervene in the internal affairs of other countries. In addition, licensing requests are examined in light of applicable UN Security Council on enforcement measures under Article 41. When considering a licensing request, the Ministry of Defence may demand information on the end use of the defence export and a declaration by the end user regarding that end use, as well as confirmation by an official governmental authority in the state of destination as to the identity of the end user to which the request for export licence relates.117 This confirmation aims to ensure that the end user is either the government itself or a body recognised and approved by that government, and permitted to engage in the activity in question. As a policy, the committee also examines the human rights situation in the state in question, guided by the Ministry of Foreign Affairs and relying on UN resolutions, on information from NGOs, and on the practice towards that state of Israel’s international allies. According to sources in the Ministry of Defence, where there is concern that the defence export would be used for purposes that are irreconcilable with international human rights standards, a licence is likely to be refused.118 In June 2010 the Ministry of Defence for the first time made public certain elements of its defence export policy.119 However, this policy document refers to commercial considerations and makes no mention of the political considerations involved. The Ministry of Defence also publishes a directory of companies approved to offer their products and services.120 Holders of export licences must submit an annual report to the Ministry of Defence regarding their activity under the licence.121 Export of defence equipment, know-how or services without a licence or in violation of a licence’s terms is a criminal offence. It is punishable by three years’ imprisonment or a pecuniary fine. Under aggravating circumstances it is punishable by five years’ imprisonment or a pecuniary fine, eg when the end user is an ‘enemy’ state as defined under the Trading with the Enemy Order, 1939; when the export is classified; or

117

ibid, Art 6(b). The press nonetheless report lively activity of Israeli arms dealers in many totalitarian states in Africa, including under licence from the Ministry of Defence. Most of the private activity, however, appears to concern exports from states other than Israel, to which Israeli law does not apply. D Merom, ‘Research: No Supervision of Israeli Arms Dealers in Africa’, News1, 3 September 2008, available at www.news1.co.il/Archive/001-D-172482–00. html?tag=15–45–37 (in Hebrew). 119 Defence Export Policy (Ministry of Defence, 6 June 2010; in Hebrew). 120 Israel Defence Sales Directory 2009–2010 (Ministry of Defence, SIBAT, 2009), available at www.sibat.mod.gov.il/SibatMain/HEB/UploadDocs/sibatdir.pdf. 121 Export Defence Control Law, 2007, Art 28. 118

Israel 459 when a person engages in brokering between foreign entities in violation of a UN Security Council resolution.122 The 2007 Law imposes a duty on corporation officers to supervise and ‘do everything possible’ to prevent the offences of unlicensed export by the corporation or by any one of its employees. Failure to discharge this duty is punishable by a fine. An ‘officer’ is an active director, a partner, though not a limited partner, or other official whose responsibilities on behalf of the corporation include the areas of responsibility of the committed offence. Should an offence be committed by the corporation or by any one of its employees, the officer is held to have violated his or her duty of supervision, unless he or she proves they have done their utmost to fulfil this duty.123 There is no provision of superior responsibility with respect to other offences committed by corporate employees. In addition, if the Ministry of Defence has reasonable grounds to assume that an act or omission has occurred which constitutes an offence under the Law, it is authorised to impose a civil fine upon the person who committed the offence. The Ministry may also impose a civil fine for failure to provide the annual report.124 There have been a handful of criminal cases regarding violations of the 2007 Law, all related to export of equipment outside the terms of a licence. The 2007 Law only regulates defence export. It does not appear to regulate the involvement of Israeli nationals or residents in activities outside Israel that do not involve such export. There is no legislation dealing with such conduct directly.125

X I . C ON C LUSION

Israel has been continually involved in armed conflict from the day of its establishment, and its legislation and practice on related issues is relatively rich. Moreover, within Israel, the military establishment was originally involved in various functions that are ordinarily assigned to civilian and even private operators. Consequently, civilianisation of the military and privatisation of certain functions have long since attracted the attention of Israeli policy makers However, the regulation under Israeli legislation and practice of the conduct of Israeli actors outside Israeli is very limited. This is probably a reflection of the fact that Israel’s exclusive international operating field is in territories that are geographically contiguous to it and in which 122

ibid, Arts 32, 33. ibid, Art 34. ibid, Arts 35, 36. 125 Such conduct may be indirectly regulated if, for example, it constitutes a criminal offence over which Israel has extraterritorial criminal jurisdiction. 123 124

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Israel holds a specific territorial status—that of an occupying power. Military operations in these territories are governed by the laws of armed conflict. Functions that have been transferred to civilian and, in some cases, private hands are modelled more on the law enforcement model that is characteristically applicable within the state than on the armed conflict model that characteristically governs outside the country. The situation is complicated by the fact that the law enforcement/armed conflict dichotomy does not overlap with the domestic/international dichotomy. Military forces carry out law enforcement functions, while the police are also involved in matters relating to armed conflict. As a consequence, the conduct of private operators, which are guided by various authorities, often remains insufficiently or unclearly regulated.

20 Russian Federation: Regulatory Tools SIGNE ZAHAROVA*

I . I NTRODUC TION

I

N THE RUSSIAN Federation, there are no laws specifically regulating the conduct of private military companies PMCs) and private security companies (PSCs) abroad. However, the author does not draw the conclusion that the PMCs and PSCs registered in the Russian Federation are precluded from being employed by a foreign employer and sent abroad. PSCs in Russia are becoming more significant players in the protection of private and public security, providing such services as ‘safety, protection, and emergency services; executive security services; and business security’.1 Though PSCs are not directly regulated by the specific laws on the conduct of PMCs and PSCs, security services provided by private companies have been legitimised by the enactment of any specific legislation the 1992 Law on Private Protection and Detective Activity in the Russian Federation. Taking into consideration the lack of specific regulation related to private military companies, it is necessary to explore the possibilities of how natural persons and entrepreneurs may become involved in providing private military and security services that are comparable to the services provided by foreign PMCs and PSCs. This chapter shows that natural persons as well as merchants may become involved in providing private military and security services both in the framework of the state’s prerogative of investigation activities and involvement in * The research has been carried out and in its previous edition published in the PRIV-WAR website by Sandija Novicka, Visiting Lecturer at the Riga Graduate School of Law. The chapter is confined to the documents and materials publicly accessible. All mistakes are solely the ones of the author. The author thanks Prof Ineta Ziemele for her valuable comments during the early stages of drafting the chapter. 1 http://www.strongholdrussia.ru/services (last accessed 3 July 2011).

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the national armed forces, and in the scope of purely private activities of security guard services and detective activities, subject to the acquisition of a special permit (licence). The chapter focuses on the issue of regulation applicable to potential Russian Federation PMCs and PSCs providing their services abroad. It deals with the legal status of domestic security and investigatory services, regulation of armed force, including arms export and import, corporate law, labour law, criminal responsibility and commercial law that may be potentially applicable to PMCs/PSCs. According to the Constitution of the Russian Federation, Russia is monist with regard to the relationship between national and international law. Thus, the rapid development in the fields of international human rights and international criminal law may have implications on national regulation of the private military and security sector.

I I . D OMESTIC SEC URITY AN D I NVESTIGATION SERV IC ES

Although the Russian Federation has no laws specially regulating the conduct of PMCs and PSCs abroad, the regulation of the companies performing private security services within the territory of the Russian Federation is set in the Federal Law No 2487-I ‘On Private Detective and Security Activity in the Federation of Russia’ adopted on 11 March 1992.2 As of 1 January 2010 substantial amendments to the law ‘On Private Detective and Security Activity in the Federation of Russia’ came into force. It specified in more detail the requirements for private security companies and persons willing to become private detectives, the licensing procedure for private detectives and private security companies, as well as liability for illegal activities of private detectives and private security companies. This law not only indicates two types of security companies, ie private security companies and private detectives, but also clearly defines the scope and concept of both:3 • private security organisations—organisations, specially incorporated for carrying out security services, which are registered in accordance with the law, and have obtained a licence to carry out private security activities; • private detective—a citizen of the Russian Federation, who has 2 The Federal Law ‘On Private Detective and Security Activity in the Federation of Russia’ [Федеральный закон ‘О частной детективной и охранной деятельности в Российской Федерации’ No 2487-I, от 11.03.92 г], http://base.consultant.ru/cons/cgi/online.cgi?req=d oc;base=LAW;n=110221;fld=134;dst=4294967295;from=70248–0 (last accessed 3 July 2011). 3 Art 1.1, paras 1 and 4 of the Federal Law ‘On Private Detective and Security Activity in the Federation of Russia’.

Russian Federation 463 registered as a private entrepreneur, has obtained a licence to carry out private investigation activities and who performs services set in Article 3, paragraph 2 of the present law. In addition, Article 3, paragraph 5 of the law ‘On Private Detective and Security Activity in the Federation of Russia’ directly states that natural persons and legal entities which do not have the legal status of private detective, private security guard or private security company are forbidden from carry out the services set in the present Article. Thus, the law stipulates that only organisations and natural persons who qualify under the conditions set by the present law are allowed to perform private security services or private investigation services. These are now examined in turn.

A. Private Security Services In order to ensure security, the following services can be provided according to the law ‘On Private Detective and Security Activity in the Federation of Russia’: • protection of life and health of citizens; • protection of property, also during transportation; • services related to planning and installation of security and fire safety systems; • consultations on security issues; • safeguarding order during public events; • safeguarding the objects and ensuring the pass office regime; • safeguarding objects, property or the territory of the objects of special significance for the state, and ensuring the pass office regime.4 The condition that only companies incorporated for this purpose can perform private security services is also stipulated in Article 11, paragraph 1, which repeatedly indicates the requirement of a licence for that purpose. Private security companies do not provide services to objects subject to state security.5 Security guards of private security companies are not allowed to combine their work in a private security company with a service in the state administration or paid community work.6 Thus the present law clearly states the position that there is no option for a public– private partnership in carrying out security services on objects subject 4 Law ‘On Private Detective and Security Activity in the Federation of Russia’, Art 3, para 3. 5 ibid, Art 11, para 3. 6 ibid, Art 12, para 1.

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to state security, and this restriction on combining employment in the private and public sectors leads this author to conclude that only the legislator of the Russian Federation may support the development of a public–private partnership by setting legal norms on the right of a private party to provide a specific public service. Private security guards shall be employed by a private security company on the basis of an employment agreement concluded according to the labour law of the Russian Federation. All private security guards shall obtain a private security guard certificate that is to be issued for the period of five years, the extension of which is performed only after the improvement of professional skills in the educational establishments listed in Article 15.2 of the present law.7 The present law lists the circumstances which prohibit the granting of the certificate to a private security guard. For instance, a certificate cannot be granted to persons who: • are not citizens of the Russian Federation; • are below the age of 18; • according to a judgment of a court lack legal capacity or have limited legal capacity; • suffer from diseases precluding performance of private security guard duties (a list of such diseases is provided by the government of the Russian Federation); • have been convicted of an intentional criminal offence; • have been accused of a criminal offence (until the case is decided according to law); • have not completed professional training in order to be employed as private security guards; • have received the judgment of the respective authorities, which is made in accordance with procedures set out by the legislation of the Russian Federation, on the impossibility of granting access to the performance of private security services due to the likelihood that the person might violate the rights and freedoms of citizens, etc.8 The licence granted to the private security company for the duration of five years lists the types of services the company is entitled to provide in the territory of the whole Russian Federation.9 The legal basis for the activities performed by private security companies is a written contract.10 Private security guards are not allowed to use investigation methods.11 However, private security guards are 7

ibid, Art 11.1, paras 1 and 3. ibid, Art 11.1, para 2. ibid, Art 11.2, para 1. 10 ibid, Art 12, para 4. 11 ibid, Art 12, para 5. 8 9

Russian Federation 465 entitled to use special means and firearms,12 but only in cases prescribed by law and in accordance with strictly defined procedures set out in the law.13 Private security guards are subject to regular inspections in order to verify whether they comply with criteria set for the persons authorised to use special means and firearms.14 The Russian Federation legislation regarding security and investigation services to be performed abroad during the armed conflict is applicable only to members of the Armed Forces of the Russian Federation, since only these persons can legally participate as military personnel during an armed conflict.15 The members of the Armed Forces of the Russian Federation may be citizens of the Russian Federation who have been drafted in the Armed Forces of the Russian Federation or who have been enlisted under the contract, as well as foreigners who have been enlisted under a contract to fill military posts vacant for replacement.16 The Armed Forces of the Russian Federation are entitled to participate in international missions and operations in accordance with international agreements of the Russian Federation.17 If the Armed Forces of the Russian Federation perform certain security sustainment and investigation services in a particular country, these activities will depend on the specific type of international operation, as defined by the international mandate and, nationally, by the Constitution of the Russian Federation’s laws ‘On Defence’, ‘On Military Duty and Military Service’ and ‘On the Status of Servicemen’,18 and other federal laws that can be adopted in case of a planned international operation. The cases in which the Russian Federation citizens are officially employed by a foreign employer in the conflict zone are difficult to determine. One of the ways of establishing this is the information provided by foreign tax revenue services to the Russian Federation State Revenue Service, responsible for collection of their income tax as well as a statement of an individual on the payment of income tax in a foreign country. Also, whether the Russian Federation has concluded an agreement on the double non-imposition of resident income tax with a certain state may be relevant.

12

ibid, Art 16, para 1. ibid, Art 16, para 1. 14 ibid, Art 16, para 3. 15 Art 10 and 16, para 3 of the Federal Law ‘On Defence’ [Федеральный закон ‘Об обороне’ No 61-ФЗ, от 31.05.96 г]. 16 Art 2, para 2 of the Federal Law N 53-FZ ‘On Military Duty and Military Service’ [Федеральный закон ‘О воинской обязянности и военной службе’ No 53-ФЗ от 28.03.98 г]. 17 Above, n 15, Art 10, para 2, 4. 18 Federal Law N 76-FZ ‘On the Status of Servicemen’ [Федеральный закон ‘О статусе военнослужащих’ No 76-ФЗ от 27.05.98 г]. 13

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B. Investigation Services According to the law ‘On Private Detective and Security Activity in the Federation of Russia’, private detectives can provide the following services: • collection of data for lawsuits on the basis of an agreement with the participant of proceedings; • market research and collection of information for business negotiations, and collection of information on creditworthiness of business partners and unreliable business partners; • investigation of illegal use of trademarks, unfair competition and disclosure of commercial secrets; • investigations into the biographies of potential employees and contractors of client companies (with the written consent of these persons); • search for missing persons; • recovery of lost property; and • collection of data on criminal cases on the basis of an agreement with the participants in the criminal proceedings.19 Only citizens of the Russian Federation may apply for the appropriate licence to carry out private investigation activities within the whole territory of the state.20 It should be mentioned that, before the amendments of 22 November 2008 came into force, licences to carry out private investigation activities were issued only for concrete administrative territories of the Russian Federation. Licences are granted for performing private investigation activities for the duration of five years.21 In order to obtain a licence, the person must prove that he or she has obtained a higher legal education degree or has undergone special training for work as a private detective, or has three or more years of professional experience in the state law enforcement or security authorities.22 A licence is not granted to persons under the age of 21. A licence is not granted to persons who are suffering from mental illness, addiction to alcohol or narcotic substances, have been convicted of committing an intentional criminal offence or have been accused of committing a criminal offence (until the case is decided according to law). The licence is also not granted to persons who have been discharged from the state service in courts, prosecutor’s offices or other law enforcement institutions for compromising reasons. Employees of law enforcement institutions in charge of control of private detectives and security activities can receive 19

Above, n 4, Art 3, para 2. ibid, Art 6, para 1. ibid, Art 6, para 1. Point 1 of Decree of the Government of Russian Federation No 498, ‘Requirement on Licensing the Private Detective (Investigation) Activity’ as of 23 June 2011. 22 ibid, Art 6, para 2. 20 21

Russian Federation 467 the licence only after at least one year has passed since they left the respective law enforcement institution.23 A refusal to grant a licence may be appealed to a higher institution of internal affairs or a court.24 A written contract for the provision of detective service shall be concluded with each client.25 While working, a detective is entitled to question persons and officials with their consent; to inspect items and documents with consent of the legal possessor; to inspect buildings, structures and other objects; and to observe and shadow in order to provide services listed in law.26 Private detectives are forbidden to hide from the law enforcement institutions information obtained during detective activity regarding intended or committed criminal offences. Private detectives are not allowed to allege that they are officials of the law enforcement institutions; to collect information related to private life, political or religious conviction; to carry out audio, video or photo surveillance of premises without the consent of the respective officials or private persons; or to undertake activities violating rights and freedoms of persons, causing threat to life, health, reputation or property of persons. The law ‘On Private Detective and Security Activity in the Federation of Russia’ prohibits certain type of activities, such as falsification of documents, misleading of clients and disclosure of the collected information, or utilisation of the information obtained for purposes contrary to the interests of the client or in the interests of other persons. The law also prohibits the transfer of the licence of private detective to other persons and the taking of operative activity measures.27 Investigation activities of private detectives violating the right to private life are subject to liability as prescribed by laws.28 The federal executive body empowered to carry out administration of internal matters of the Russian Federation, and other federal executive bodies and offices according to their competence set by laws, take control over both detective and private security activities.29

23 24 25 26 27 28 29

ibid, Art 6, para ibid, Art 6, para ibid, Art 9, para ibid, Art 5, para ibid, Art 7, para ibid, Art 7, para Art 20, para 1.

4. 5. 1. 1. 1. 2.

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Signe Zaharova I I I . R E G ULATION OF C IRC ULATION OF AR MS AN D ARMED FORC ES

A. Possession of Arms In the Russian Federation, the acquisition, possession or carrying of weapons is a monopolised and controlled process. Circulation of civil, service and combat weapons, as well as circulation of munitions and cartridges, in the territory of the Russian Federation is regulated by Federal Law ‘On Weapons’.30 It defines the categories of weapons depending on purpose of their use, ie civil, service and combat weapons.31 Civil weapons are aimed for purpose of self-defence, sport or hunting.32 Service weapons are aimed at self-defence, fulfilment of duties by civil servants of state institutions and employees of legal persons that, on the basis of law, have right to possess and use weapons.33 Companies and organisations enjoying functions connected with the use of service weapons on the basis of law are legal persons with specific statutory functions.34 As the employees of private security companies have a right to use firearms during the performance of their duties,35 private security companies have a right to acquire service guns and revolvers for specific cartridges, civil weapons for self-defence (except, for instance, smooth barrel bore firearms), and, in institutions of internal affairs, to receive service weapons for temporary use.36 Possession of weapons requires a special licence that shall be issued according to Article 9 of the law ‘On Weapons’, and the licence for obtaining the weapons, no matter whether for civil, service or combat purposes, is valid for six months from the date of issue.37

B. Arms Export and Import Only legal persons who have received a licence for the production of weapons enjoy a right to produce service and civil weapons. Production of combat weapons is monopolised by the state.38 This also applies to 30 The Federal Law N 150-FZ ‘On Weapons’ [Федеральный закон ‘Об оружии’ No 150-ФЗ от 13.12.96 г.). 31 ibid, Art 2. 32 ibid, Art 3. 33 ibid, Art 4, part 1. 34 ibid, Art 4, part 4. 35 Above n 4, Art 16. 36 Above, n 30, Art 12, part 1. 37 ibid, Art 9. 38 ibid, Art 16, part 3, Points 1, 2 and 31 of the Decree of the Government of the Russian Federation No 1314 ‘On Approval of the Rules on the Circulation of Combat Weapons,

Russian Federation 469 the import and export of weapons. Companies having a licence for the production of weapons enjoy a right to export civil and service weapons; companies having a licence on sale (suppliers) of civil and service weapons enjoy a right to import weapons.39 Moreover, the Russian Federation has monopolised the import and export of such strategic goods as military equipment and armaments on the basis of military technical cooperation with other countries. This cooperation is regulated by Federal Law ‘On Military Technical Cooperation of the Russian Federation with Foreign Countries’.40 According to Article 2 of this law, all questions concerning military–technical cooperation of the Russian Federation are also within the competence of the state.

C. Government Policy on Outsourcing of Armed Forces According to the law ‘On Defence’, the President of the Russian Federation conducts negotiations and signs international agreements in the field of defence, including agreements on common defence, collective security and the participation of the Armed Forces of the Russian Federation in the operation on stabilisation of peace and international security.41 Pursuant to the Constitution of the Russian Federation, decisions on issues concerning the use of the Armed Forces of the Russian Federation outside the territory of the Russian Federation are under the authority of the Federation Council, ie one of the two chambers of the Federal Assembly—the parliament of the Russian Federation.42 From the perspective of national law, the Russian Federation has the prerogative of determining the participation of the armed forces in international operations. In certain cases, the Russian Fderation may retain its command over the national armed forces, which is usually prescribed in the national laws. In addition, the responsibility of the Russian Federation and the relevant international organisation for the implementation of a particular mandate for an international military operation will be established by the international law principles on the responsibility of states and international organisations. Hand Small Arms and Other Weapons, Munitions and Cartridges, as well as Arm Blanche in State Militarized Organizations’, as of 15 October 1997. 39 Above n 30, Art 17, para 3. 40 Federal Law No 114-FZ ‘On Military Technical Cooperation of the Russian Federation with Foreign Countries’ [Федеральный закон N 114-ФЗ ‘О военно-техническом сотрудничестве Российской Федерации с иностранными государствами’ от 20 июля 1998 года]. 41 Above n 15, Art 4, para 2, point 17. 42 Art 102, para 1, point g of the Constitution of the Russian Federation, adopted by referendum on 12 December 1993; the English translation can be found at http://therussiasite.org/legal/laws/constitution.html#Chapter4.

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Participation of civilians in Armed Forces of the Russian Federation is regulated by the following acts: • Federal Law No 53-FZ ‘On Military Duty and Military Service’; • Federal Law No 61-FZ ‘On Defence’; • Federal Law No 128-FZ ‘On the State Dactyloscopic Registration in the Russian Federation’43; • Decree of the Minister of Defence of the Russian Federation No 20 ‘On Affirmation of a List of Military Positions Taken by Chief and Junior Officers of the Armed Forces of the Russian Federation that can be Replaced by Civilian Personnel’;44 • Order of the Ministry of Defence of the Russian Federation No 557 ‘On Conclusion of Employment Agreements (Contracts) with Civilian Personnel of the Armed Forces of the Russian Federation’;45 • Order of the Minister of Defence No 520 ‘On Approval of a List of Job Positions Taken by Civilian Personnel in the Armed Forces of the Russian Federation’.46 Thus, some civilians employed by the Armed Forces of the Russian Federation are under a duty to undergo state dactyloscopic registration, for example, persons with positions in the Foreign Intelligence Service, due to their access to secret information containing state secrets.47 All employment relations between the Armed Forces of the Russian Federation and civilian personnel have to be based on an employment contract regulated by the Labour Code of the Russian Federation (hereinafter the Labour Code)48 and special laws of the Russian 43 Federal Law No 128-FZ ‘On the State Dactyloscopic Registration in the Russian Federation’ [Федеральный закон от 25.07.98 No 128-ФЗ ‘О государственной дактилоскопической регистрации в Российской Федерации’]. 44 Decree of the Minister of Defence of the Russian Federation No 20 ‘On Affirmation of a List of Military Positions Taken by Chief and Junior Officers of the Armed Forces of the Russian Federation that can be Replaced by Civilian Personnel’ [Приказ Министра обороны Российской Федерации No 20 ‘Об утверждении Перечня воинских должностей, подлежащих замещению старшими и младшими офицерами в Вооруженных Силах Российской Федерации, которые разрешается замещать гражданским персоналом’, от 28.01.04]. 45 Order of the Ministry of Defence of the Russian Federation No 557 ‘On Conclusion of Employment Agreements (Contracts) with Civilian Personnel of the Armed Forces of the Russian Federation’ [Приказ Минобороны России No 557 ‘О заключении трудовых договоров (контрактов) с гражданским персоналом Вооруженных Сил Российской Федерации’, от 11.12.93]. 46 Order of the Minister of Defence No 520 ‘On Provision of a List of Job Positions Taken by the Civilian Personnel in the Armed Forces of the Russian Federation’ [Приказ Минобороны России No 520 ‘Oб утверждении перечня должностей (професий), замещаемых лицами гражданского персонала, в вооруженных силах Российской Федерации’, от 13.10.2008]. 47 Point 4 of the Decree of the Government of the Russian Federation No 386 ‘On Affirmation of a List of Job Positions Taken by Citizens of the Russian Federation who are Under a Duty of the State Dactyloscopic Registration’. 48 The Labour Code of the Russian Federation No 197-FZ, adopted by the State Duma on 21 December 2001.

Russian Federation 471 Federation.49 If these employees are to be employed by military units and institutions, military educational establishments and entities, and in organisations of the Ministry of Defence of the Russian Federation placed in the territory of states—the former Soviet Union States—employment contracts shall be in line with normative acts of those states.50 Civilians can be employed only in those positions established by a special list. In military management institutions, military units and organisations of the Armed Forces of the Russian Federations, these persons can be employed provided that their employment will not be detrimental to the interests of military operational readiness and mobilisation readiness. The law limits the number of civilians that can be employed, and they can only be employed for the positions established by a special list if there are no military subordinates for these positions; further, civilian employees are not allowed to hold multiple jobs.51 Civil employees cannot take positions directly connected with planning and management of operations and military actions, ensuring mobilisation readiness and military operational readiness, use of force, use of technical support within internal military institutions, armed and special forces, as well as positions connected with combat duty, staff watch duty and duty with arms. Thus, civilians can be only civil employees and never military employees.

D. PMC Contracts and Armed Force The way to determine whether private security contractors and private military contractors are performing their activities abroad is from the information provided to the tax revenue service. If Russian Federation PMCs and contractors are sent to the conflict zone by the foreign private security or private military company, the issue of jurisdiction arises. Jurisdiction depends on the subject-matter of the claim, and in that respect the issue of ‘forum-shopping’ may arise, since several courts may have jurisdiction over the claim of the same subject matter. The Russian Federation Civil Procedure Code52 provides that all civil law

49 Part 1 of Point 1 of Order of the Ministry of Defence of the Russian Federation No 557 ‘On Conclusion of Employment Agreements (Contracts) with Civilian Personnel of the Armed Forces of the Russian Federation’, as of 11 December 1993. 50 ibid, Part 2 of Point 1. 51 Point 2 of the Decree of the Minister of Defence of the Russian Federation No 20 ‘On Affirmation of a List of Military Positions Taken by Chief and Junior Officers of the Armed Forces of the Russian Federation that can be Replaced by Civilian Personnel’. 52 The Civil Procedure Code No 138-FZ of 14 November 2002 [Гражданский процессуальный кодекс, от 14.11.2002].

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disputes are subject to the court.53 According to the Civil Procedure Code, a claimarising out of the action of a subsidiary or representative office of a legal person may be brought before a court where the subsidiary or representative office is located.54 An action arising out of private wrongful acts, which have resulted in mutilation or other damage to health, or the death of a breadwinner, may also be filed at the court according to the place where the plaintiff resides or where the delicts occurred.55 An action against several defendants, who reside at or are located in various places, may be brought in accordance with the place of residence or location of one defendant.56

I V. C ORP ORATE LAW

A. Registration and Purpose In the Russian Federation, in order to start a business either as a commercial company or as an individual entrepreneur, it has to be registered in the state registers of the Russian Federation.57 The state registers, ie state registers of the single state register of legal entities and the single state register of individual businessmen (hereinafter the State Register), contain information on state registration of legal entities during their establishment, reorganisation or liquidation, and in connection with the state registration of natural persons as individual entrepreneurs, including all supporting documents.58 Article 12 of the Federal Law No 129-FZ ‘On State Registration of Legal Entities and Individual Businessmen’ provides a list of documents that must be submitted to the State Register for the registration of a newly formed legal entity. The list includes: 1. a state registration application signed by the applicant and drawn up according to the format approved by the Government of the Russian Federation; 2. the decision whereby the legal entity has been formed, in the form of minutes, an agreement or other document in compliance with Russian law; 3. the constituent documents of the legal entity (originals or copies certified by a notary); 53

ibid, Art 22, para 1, point 1. ibid, Art 29, para 2. 55 ibid, Art 29, para 5. 56 ibid, Art 31, para 1. 57 Federal Law No129-FZ ‘On State Registration of Legal Entities and Individual Businessmen’, adopted by the State Duma on July 13, 2001, Art 4, para 1. 58 ibid, Art 1, para 1. 54

Russian Federation 473 4. an extract from the register of foreign legal entities of a relevant country of origin or another equally effective proof of the legal status of a foreign legal entity being a founder; 5. a document confirming that state duty has been paid. A legal entity is registered in the State register when the competent registration body has made relevant entry in the corresponding state register.59 No later than one day after registration, the registration body issues a document confirming the fact of registration of information in the State Register.60 The Government of the Russian Federation establishes the form and content of this decision.61 The registration body shall within five business days after the time of state registration provide information on the registration to the state bodies designated by the Government of the Russian Federation,62 for example, the tax collection authority and the committee of statistics. According to Decision of the Government of the Russian Federation No 319 of 17 May 2002, the Ministry of Taxation of the Russian Federation has been the registration body responsible for carrying out the state registration of legal entities since 1 July 2002.63

B. The Russian Federation PSCs As mentioned above (section III.D), the registration of PSC as a commercial company or individual merchant does not comprise any information with respect to the foreign country of performance their duties. One may try to find this information from the information on tax payments made abroad by the PSC.

V. LABOUR LAW

A. Employment The Russian Federation Labour Code does not contain any provisions specifically regulating PMCs/PSCs services. The Labour Code requires the conclusion of a written employment contract between an employee 59

ibid, Art 11. Above n 57, Art 11, para 2. 61 ibid, Art 11, para 3. 62 ibid, Art 11, para 3.1. 63 Decision of the Government of the Russian Federation No 319 of May 17 ‘Постановление об уполномоченном Федеральном Органе Исполнительной власти, осуществляющем государственную регистрацию юридических лицб крестъянских (фермерских) хозяйств, физических лиц в качестве индивидуальных предпринимателей’ (2002). 60

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and an employer, by which a mutual legal relationship is to be established.64 The Labour Code provides that the employment contract shall not contain provisions worsening the status or limiting rights of the employee under the legal acts.65 According to Articles 13 and 59 of the Labour Code, it may be concluded that the Labour Code regulates also the relations between employers and employees employed abroad. The Labour Code regulates employment of foreigners in the Russian Federation unless otherwise provided by international agreements of the Russian Federation.66

B. Assignment In general, apart from employment agreements, service or assignment agreements might be used in order to engage persons in work. However, in certain cases the law provides that the relations shall be governed by the employment contract (for instance, private security companies are not allowed to engage their staff based on service or assignment contracts). Furthermore, if the court finds that the service agreement or any other type of civil law actually regulates employment relations, the labour law and any other legal acts regulating employment relations shall govern the relations.67 Unless specifically prohibited by the contract, contractors are allowed to subcontract their duties. However, in such a case the contractor bears liability for the performance of the subcontractors engaged.

C. Temporary Workers As the only stipulation by the law ‘On Private Detective and Security Activity in the Federation of Russia’ regarding employment conditions is the mandatory requirement for private security guards to be employed by the private security company on the basis of an employment agreement concluded according to the labour law of the Russian Federation,68 the author presumes that private security guards might also be employed temporarily if the preconditions of the temporary agreement fall within the scope of Article 59 of the Labour Code.

64 65 66 67 68

Labour Code, Art 67. ibid, Art 9. ibid, Art 11(5). ibid, Art 11(4). Above n 4, Art 11.1, para 3.

Russian Federation 475 V I . C R I MIN AL RESP ON SIBILITY

A. Mercenary Activity Mercenary activities are prohibited by the Russian Federation law as such. The Criminal Code defines that a mercenary is a person who is acting with the purpose of obtaining a material reward, and who is not a citizen of the state in whose armed conflict or hostilities he participates, who does not reside on a permanent basis on its territory and who is not a person fulfilling official duties.69 This definition of a mercenary is based on the definition established by the 1989 UN International Convention against the Recruitment, Use, Financing and Training of Mercenaries, according to which a mercenary is any person who: • is specially recruited locally or abroad in order to fight in an armed conflict; • is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party; • is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict; • is not a member of the armed forces of a party to the conflict; and • has not been sent by a state which is not a party to the conflict on official duty as a member of its armed forces. However, volunteers are not covered by this definition of mercenaries. Thus, volunteers, who are members of the armed forces of a party to the conflict, who have decided to take part in armed activities of one of the party based on personal and not economic basis, ie foreign state, are not mercenaries. Moreover, military consultants sent to a foreign army based on an agreement between states and not taking direct part in armed activities are also not mercenaries. The legal status of these persons is regulated by two other conventions: the 1907 Hague Convention and the 1949 Fourth Geneva Convention.70 According to Article 359 of the Criminal Code of the Russian Federation, mercenary activities are identified as follows:

69 Criminal Code of the Russian Federation, adopted by the State Duma on 24 May 1996, adopted by the Federation Council on 5 June 1996, Art 359. 70 The Commentaries to the Criminal Code of the Russian Federation, editor ‘Norma’, 5th edition, Moscow, 2007, p 359.

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(a) recruitment, training, financing or any other material provision of a mercenary, and also the use of a mercenary in an armed conflict or hostilities; (b) the same acts, committed by a person through his official position or with relation to a minor; (c) participation by a mercenary in an armed conflict or hostilities. According to the Commentaries to the Criminal Code of the Russian Federation, recruitment of a mercenary is the selection of people for participation in an armed conflict or military activities for specific remuneration, ie the search for and invitation of people for military training in order to use them in an armed conflict or military activities. The training of a mercenary is targeted training, teaching to use arms, ammunition, teaching tactics and carrying out battles. The use of mercenaries is always followed up by financing (ensuring of financial means) or other material provision, for example, outfitting, arming, providing ammunition and transportation of means. Participation of a mercenary in an armed conflict or hostilities is punishable by deprivation of liberty for a term of three to seven years. This means that the acts of a mercenary, ie a person agrees to participate in armed activities and participates therein for remuneration, are considered to be criminal acts. If a person’s intent to receive remuneration is absent, such actions are not criminal.71

B. Individual Criminal Responsibility The Russian Federation Criminal Code implements the principle of universal jurisdiction in part 3 of Article 12. It stipulates that foreign nationals and stateless persons who do not reside permanently in the Russian Federation and who have committed their crimes outside the boundaries of the Russian Federation shall be brought to criminal responsibility under this Code in cases where the crimes run counter to the interests of the Russian Federation and in cases provided for by international agreement of the Russian Federation, unless they have been convicted in a foreign state and are brought to criminal responsibility in the territory of the Russian Federation.72 This principle works in conjunction with international agreements binding on the Russian Federation. The 1949 Geneva Conventions and 1977 Protocol I Additional to the Geneva Conventions refer only to the principle of universal jurisdiction with respect to persons committing serious violations of international humanitarian law during international 71 72

ibid. Art 12, para 3 of the Criminal Code.

Russian Federation 477 armed conflicts. Thus, the principle of universal jurisdiction does not apply with respect to violations of international humanitarian law committed during non-international armed conflicts. However, the ratification of the Rome Statute of the International Criminal Court by the Russian Federation will contribute to spreading state responsibility for being held accountable also for military crimes committed during noninternational armed conflicts.73 The Criminal Code implements the principle of territoriality74 and the floating territorial principle.75 It also implements76 the active personality principle with respect to the soldiers of the Russian Federation77 and the passive personality principle.78 The Criminal Code establishes a separate Chapter XII, ‘Crimes against Peace and Mankind’s Security’. It prescribes criminal responsibility for planning, preparing, unleashing or waging of an aggressive war,79 public appeals to unleash an aggressive war,80 the development, manufacture, stockpiling, acquisition or sale of massdestruction weapons,81 use of banned means and methods of warfare,82 genocide,83 ecocide,84 the aforementioned mercenarism,85 and assaults on persons or institutions enjoying international protection.86 The Criminal Code prescribes criminal responsibility for the establishment of an organisation of a criminal community, ie a criminal organisation with a purpose of committing grave or especially grave crimes, and likewise the operation of such a community (organisation) or its structural subdivisions. It also includes the creation of an association of organisers, leaders or other representatives of organised groups for formulating plans and conditions for the commission of grave or especially grave crimes.87 Moreover, the Criminal Code prescribes criminal responsibility for the organisation of an illegal armed formation or participation therein, ie the creation of an armed formation (unit, squad or other group) that is not envisaged by a federal law, and likewise operating such a formation. Participation in an armed formation is illegal if a federal law does not 73 The Russian Federation has signed the Rome Statute of the International Criminal Court on 13 September 2000. 74 Art 11, para 1 of the Criminal Code. 75 Art 11, para 3 of the Criminal Code. 76 Art 12, para 1 of the Criminal Code. 77 Art 12, para 2 of the Criminal Code. 78 Art 12, para 3 of the Criminal Code. 79 Art 353 of the Criminal Code. 80 Art 354 of the Criminal Code. 81 Art 355 of the Criminal Code. 82 Art 356 of the Criminal Code. 83 Art 357 of the Criminal Code. 84 Art 358 of the Criminal Code. 85 Art 359 of the Criminal Code. 86 Above n 69, Art 360. 87 ibid, Art 210, para 1.

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provide for it. However, a person who has ceased to take part in an illegal armed formation of his own free will, and has handed in his weapons, shall be released from criminal responsibility unless his actions are regarded as another crime.88 Both these crimes are considered crimes against public security. The Criminal Code establishes responsibility for stealing or possession of nuclear materials or radioactive substances,89 the illegal acquisition, transfer, sale, storage, transportation or bearing of firearms, their basic parts, ammunition, explosives and explosive devices,90 illegal manufacture of weapons,91 careless keeping of arms,92 improper discharge of the duties of protecting arms, ammunition, explosives and explosive devices,93 stealing or possession of arms, ammunition, explosives and explosive devices,94 and the illegal export or transfer of raw stuff, materials, equipment, technology or scientific and technical information, or carrying out illegal works (rendering services) which may be used in the development of weapons of mass destruction, armaments and military hardware.95 The Criminal Law, by prescribing the criminal responsibility for crimes against military service (Chapter XI), describes ‘criminal offences against military service’ as crimes against the established order of military service, and committed by servicemen who have been drafted or enlisted under a contract in the Armed Forces of the Russian Federation in troops and military formations of the Russian Federation, and also by reservists during training assemblies.96 According to part 1 of Article 52 of the law ‘On Military Duty and Military Service’, reservists are persons who were dismissed from the Armed Forces of the Russian Federation and enlisted in the reserves of the Armed Forces of the Russian Federation, alumni of state universities who finished studies at the military faculties, persons who have been released from military service duty, persons who have been dismissed from the Armed Forces of the Russian Federation without enlisting in the reserves but enlisted later in the military commissariats, persons who have served alternative civil duty and women with registered military specialisation.97 The Criminal Code criminalises failure to execute an order,98 resistance to a superior or compelling another to violate his duties of military 88 89 90 91 92 93 94 95 96 97 98

ibid, Art 208. ibid, Art 221. ibid, Art 222. ibid, Art 223. ibid, Art 224. ibid, Art 22. ibid, Art 331, para 1. ibid, Art 189. ibid, Art 226. Art 52, para 1 of the Law ‘On Military Duty and Military Service’. Above n 69, Art 332.

Russian Federation 479 service,99 violent actions against a superior,100 violation of regulations for mutual relations between servicemen in the absence of subordinating relations among them,101 insulting a serviceman,102 unauthorised abandonment of a military unit or a place of military service,103 desertion,104 evasion of military service duties by feigning illness, or by any other method,105 violation of the rules for conducting oneself on combat duty in military service,106 violation of the rules for bearing frontier service,107 violation of regulations for guard duty,108 violation of the rules for the service of protecting public order and safeguarding public security,109 violation of the internal service and patrolling regulations in a garrison,110 wilful destruction or damage of military equipment,111 destruction or damage of military equipment by negligence,112 loss of military equipment,113 violation of the rules for handling arms and hazardous materials,114 violation of the rules for driving or operating cars or lorries,115 and violation of the rules for flights and training for them.116 The Criminal Code also criminalises actions against the interests of service in profit-making and other organisation, such as the exceeding of authority by staff members of security or detective services, ie the stepping outside of the licensed authority by a manager or an officer of a security or detective service in defiance of his duty, if this deed is committed with the use of violence or with the threat of its application.117

C. Command Responsibility and PMCs/PSCs There is no clear concept of command responsibility in the Russian Federation criminal law that allows the pursuit and conviction of a person under whose effective control or command there are persons 99

ibid, Art 333. ibid, Art 334. 101 ibid, Art 335. 102 ibid, Art 336. 103 ibid, Art 337. 104 ibid, Art 338. 105 ibid, Art 339. 106 ibid, Art 340. 107 ibid, Art 341. 108 ibid, Art 342. 109 ibid, Art 34. 110 ibid, Art 344. 111 ibid, Art 346. 112 ibid, Art 347. 113 ibid, Art 348. 114 ibid, Art 349. 115 ibid, Art 350. 116 ibid, Art 351. 117 ibid, Art 203. 100

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who have directly committed a crime. However, an instigator of a crime who is a person having a right to give direct instructions or orders to servicemen, if these orders are obligatory for servicemen, shall be considered as a co-perpetrator of a crime committed by a servicemen who does so by fulfilling an order.118 According to Article 42 of the Criminal Code, the infliction of harm to legally protected interests shall not be qualified as an act of crime provided it was caused by a person acting in the execution of an order or instruction binding on him. The criminal responsibility for the infliction of such harm shall be borne by the person who gave the illegal order or instruction. However, a person who has committed an intentional offence in the execution of an order or instruction known to be illegal shall be held liable under the usual terms. Failure to execute an order or instruction known to be illegal shall preclude criminal liability. The Disciplinary Statutes of the Armed Forces of the Russian Federation119 prescribe that orders of the commander must be obeyed without objection.120 An order or instruction is legal if it is given in a proper form, by a competent authority and within the competence of this authority. A proper authority is the direct commander, who directs the activities of the respective subordinate, as well as a higher level commander in cases prescribed by binding normative and internal acts. A legal order or instruction shall not only include its goal but also the way it has to be achieved.121 An order is also illegal if it is not in line with the Constitution of the Russian Federation, federal laws and military oath. The commanders who issue illegal orders are subject to liability in accordance with legislation of the Russian Federation.122 The Criminal Code prescribes criminal responsibility for military offences committed during military service. It would not apply to civilians and PMCs/PSCs, save in cases where they are acting under military command of the national armed forces. However, the commander can be criminally responsible for the violations by PMCs/PSCs. The Criminal Code has a concept of complicity in a crime,123 ie the intentional joint participation of two or more persons in the commission of a deliberate crime.124 According to part 1 of Article 33 of the Criminal Code, in addition to the perpetrator, organisers, instigators and accessories shall be deemed accomplices. A person who has actually committed a crime or who has directly 118

Commentaries to Arts 33 and 42 of the Criminal Code. The Disciplinary Statutes of the Armed Forces of the Russian Federation, approved by the Decree the President of the Russian Federation on 10 November 2007 No 1495. 120 ibid, Art 16. 121 The Commentaries to Art 42 of the Criminal Code. 122 Above n 119, Art 41, 123 Above n 69, ch 7. 124 ibid, Art 32. 119

Russian Federation 481 participated in its commission together with other persons (co-perpetrators), and also a person who has committed a crime by using other persons who are not subject to criminal responsibility by reason of age, insanity or other circumstances provided for by this Code, shall be deemed to be a perpetrator.125 A person who has organised the commission of a crime or has directed its commission, and also a person who has created an organised group or a criminal community (criminal organisation) or has guided them, shall be deemed an organiser.126 A person who has abetted another person in committing a crime by persuasion, bribery or threat, or by any other method, shall be deemed an instigator.127 A person who has assisted in the commission of a crime by advice, instructions on committing the crime or removal of obstacles to it, and also a person who has promised beforehand to conceal the criminal, means and instruments of commission of the crime, traces of the crime or objects obtained criminally, and equally a person who has promised beforehand to acquire such objects, shall be deemed to be an accessory.128 The criminal responsibility of an organiser, instigator and accessory shall ensue under the article of the Criminal Code that provides for punishment for the crime committed, with reference to Article 33 of this Code, except in cases when they were simultaneously co-perpetrators of the crime.129

D. Criminal Responsibility and Companies The Criminal Code does not establish the criminal responsibility of legal persons. No coercive measures can be applied to legal persons within criminal proceedings against a natural person. This does not mean that legal persons can avoid any responsibility. Coercive measures like financial and administrative sanctions, including liquidation of a legal person, can be applied to legal persons based on the Civil Code of the Russian Federation. These sanctions shall not be considered punishment of a legal person.130

125

ibid, Art 33, para 2. ibid, Art 33, para. 127 ibid, Art 33, para 4. 128 ibid, Art 33, para 5. 129 ibid, Art 34, para 3. 130 Art 56, 61 of the Civil Code of the Russian Federation, adopted by the State Duma on 21 October 1994, No 51-FZ. 126

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A. Choice of Law and Forum It is necessary to mention that, before the amendments of 1 January 2010 to the law ‘On Private Detective and Security Activity in the Federation of Russia’ came into force, Article 9 of the respective law foresaw the settlement of disputes related to remuneration for services and other grounds arising out of security agreements between a private detective company and a client to be undertaken by a court. At present, the settlement of disputes arising from contractual relations between a private detective company and a client is assumed to be regulated in accordance with provisions stipulated in the security agreement thereof. Contractual relations between PSCs and clients are assumed to be regulated in accordance with the respective contract, which has to be concluded taking into consideration general provisions set out in the Civil Code. For instance, Article 1210, paragraph 3 of the Civil Code provides that parties, by agreement between them, may select the law that will govern their rights and duties under the contract both when entering into a contract and subsequently. However, the law so selected shall govern the rights and duties of the parties under the contract with no prejudice for the rights of third persons.131 An agreement of parties as to the selection of the law to be applicable shall be expressly stated or shall clearly derive from the terms and conditions of the contract or the circumstances of the case.132 The rights of third persons are also protected if the parties decide to select the applicable law after the contract was concluded. In that case, the applicable law shall have a retroactive effect and it shall be deemed valid from the time when the contract was concluded. Where there is no agreement of the parties on the applicable law, the contract shall be subject to the law of the country with which the contract has the closest relationship.133 The law of the country with which a contract has the closest relationship shall be deemed the law of the country where the party responsible for the performance under the contract of crucial significance for the content of the contract has their place of residence or main place of business, except as otherwise ensuing from the law, the terms or substance of the contract, or the circumstances of the case in question.

131 132 133

ibid, Art 1210, para 1. ibid, Art 1210, para 1. ibid, Art 1211, para 1.

Russian Federation 483 B. Freedom of Contract Article 421 of the Civil Code of the Russian Federation provides that citizens and legal entities shall be free to conclude contracts. Compulsion to conclude contracts shall be inadmissible, with an exception of the cases when the duty to conclude the contract has been stipulated by the Civil Code, by law or by a voluntarily assumed obligation. Though legal entities shall be free to conclude contracts, PSCs may perform their services upon requirements set in Article 12, paragraph 4 of the law ‘On Private Detective and Security Activity in the Federation of Russia’, stating that private security companies conclude contracts with clients on performance of security services in line with principles stipulated by the Article 9 of the present law. The reference to Article 9 of the present law constitutes the link between contracts to be concluded with private security companies and their clients to the principles directly applicable to contracts concluded between private detectives and their clients, ie a detective must enter into an agreement with their client in writing, including information on parties, the number and date when the licence of the detective was issued, the subject of the task, deadlines for fulfilment, approximate amount of expenses and remuneration for services, liability of the parties, and the date of the agreement. Such an agreement will be deemed entered into if consent has been reached between parties on a confidential basis on all its articles and it contains none of the above-mentioned prohibited provisions. Agreement provides a duty on private detective companies to provide the client with a written report on the results of the work. The report must contain answers to the main questions posed by the client in accordance with the agreement. Detailed transcripts on remuneration and expenses of private detectives must be attached to the report. The report as well as the agreement itself must be kept in the archive of the company for at least five years. As the law stipulates a written form for the agreement between PSC and each client, the requirements for the definite form set out by Article 434 of the Civil Code must be applied thereto.134

C. Termination of Contract Termination of contract shall be foreseen in every contract, irrespective of its duration. There are no special provisions regarding termination of a contract between a PSC and their clients.

134

See Art 434, para 2 and 3.

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D. Civil Liability As the services performed by PCSs or private detectives must be defined in the written contract with the client, the present law indicates that issues of individual and corporate civil liability for torts committed by PSC employees are to be dealt with in accordance with the Russian Federation legislation regulating civil liability issues. For example, Article 1064, paragraph 1 of the Civil Code prescribes that the injury inflicted on the person or property of an individual and the damage done to the property of a legal entity are subject to full compensation by the person who inflicted the injury or damage. The obligation to redress the injury may be imposed by law on the person who is not the inflictor of the injury. The law or the contract may institute the obligation on the inflictor of the injury to pay the victims compensation over and above the compensation of the damage. A person who has caused harm shall be released from the obligation to redress the injury if he proves that it was not caused by his fault. The law may also provide for the redress of injury in the absence of fault of the offending party.135 Injury inflicted by lawful actions shall be subject to redress in cases provided for by law. Redress of injury may be rejected if the injury has been caused at the request or with the consent of the insured person and unless the actions of the tortfeasor violate the moral principles of the society.136 The additional requirements for civil liability of legal entities or individuals for injuries inflicted by their employees are set out in Article 1068, paragraph 1 of the Civil Code that regulates the obligation of the legal entity or individual to redress the injury inflicted by the employee during the performance of labour (official) duties. Individuals performing their work on the basis of a labour contract, and also individuals performing their work under a civil law contract, shall be recognised as employees if, in this case, they acted or should have acted on the assignment of the relevant legal entity or individual and under their control over the safe conduct of works. However, civil liability is not restricted to the legal norms mentioned above, and it is foreseen that contractors may freely choose additional provisions to pledge in the contractual obligations, such as forfeits, pledges, the retention of the debtor’s property, sureties, bank guarantees, advances and other methods.137 The Russian Federation law does not compel PCSs to have insurance.

135 136 137

Above n 130, Art 1064, para 3. ibid, Art 1064, para 4. ibid, Art 329, para 1.

Russian Federation 485 V I I I . C ON C LUSION S

The Russian Federation law does not contain explicit rules regulating the employment of PMCs/PSCs abroad by foreign employers. The law of the Russian Federation prescribes that private security services and private investigation services are performed on the basis of a contract. Licences for these services are issued for activities within the whole territory of the Russian Federation. There is no official information whether these type of companies are performing their services abroad. However, the Russian Federation laws prescribe that under certain conditions civilians might be involved in military state organisations based on contract. Nevertheless, it should be noted that there is rather strict regulation and, legally, there is state control over military and related activities. The involvement of civilians in this field is rather limited. This is to be distinguished from private security and detective services, as described above.

21 South Africa: The Regulatory Context of Private Military and Security Services FAUSTIN Z NTOUBANDI

I . I NTRODUC TION

T

HE SPHERES OF private security, private military and safety, and security in general have, in the last few years, undergone dramatic changes in South Africa. However, such changes have generated little legislation and case law on the subject. The Constitution of the Republic of South Africa of 19961 (Constitution) constitutes the main source of law that applies to the provision of military and security services in South Africa. It is supplemented with a number of enactments, regulations and codes of conduct which subject different aspects of military and security services to strict scrutiny. Two broad categories of private military and security companies’ (PMSCs) activities are subject to regulation; namely, the provision of security services domestically, which is allowed and regulated; and the provision of assistance, military or security services abroad, as well as the exercise of mercenary activity, which range from being prohibited and criminalised to being very tightly regulated. The activities of both the military and security industries are overseen by various control or regulatory organs or committees. This integrated regulatory scheme makes South Africa a country that has taken one of the strictest anti-‘market for force’ stances in the world by criminalising the export of private military and security services and by opting for an outright prohibition of mercenary activity. However, its inability to enforce its legislation effectively and to crack down on the private supply of foreign conflict zones with military and security materials and personnel has highlighted the challenges inherent in regulating the activity of PMSCs. The aim of 1

Act 108 of 1996.

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this report, therefore, is to give an account of South African laws and regulations applicable to private military and security services. Part II of this report briefly presents the general legal framework applicable to South African PMSCs. Part III focuses on the specific regulatory regimes to which the military and security services are subjected, and highlights the problems related to their enforcement. Part IV deals with the implication of other applicable laws and regulations in the procurement of security services, and the last part addresses issues of criminal responsibility.

I I . G E NE R AL LEGAL FRAMEWORK FOR P MSC S

A. The 1996 Constitution The Constitution sets the basic principles governing national security and the participation of South African citizens in armed conflict. It provides in this respect that ‘The resolve to live in peace and harmony precludes any South African citizen from participating in an armed conflict, nationally or internationally, except as provided for in terms of the Constitution or national legislation’.2 It also provides for a single national defence force—the South African National Defence Forces—and establishes the general legal framework for the establishment, structuring and conduct of security services. Pursuant to section 199 of the Constitution: 1. The security services of the Republic consist of a single defence force, a single police service and any intelligence services established in terms of the Constitution. 2. The defence force is the only lawful military force in the Republic. 3. Other than the security services established in terms of the Constitution, armed organisations or services may be established only in terms of national legislation. 4. The security services must be structured and regulated by national legislation. 5. The security services must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic. 6. No member of any security service may obey a manifestly illegal order. 7. Neither the security services nor any of their members may, in the performance of their functions: 2

Section 198(b).

South Africa 489 (a) prejudice a political party interest that is legitimate in terms of the Constitution; or (b) further, in a partisan manner, any interest of a political party. 8. To give effect to the principles of transparency and accountability, multi-party parliamentary committees have oversight of all security services in a manner determined by national legislation or the rules and orders of parliament.

B. Enabling Legislation In the years following the adoption of the Constitution, two pieces of legislation were adopted which govern the activities of private military forces and prohibit the use of mercenaries. The first is the Regulation of Foreign Military Assistance Act 15 of 1998 (RFMA). It was subsequently replaced by the second, namely the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act 27 of 2006 (Mercenary Act), in order to correct a number of definitional flaws as well as other deficiencies inherent in the RFMA text. It is perhaps worth mentioning at this point that the South African National Defence Forces is specifically regulated by the Defence Act 42 of 2002. Private military and security forces do not fall within the ambit of this Act. As far as the activities of the private security sector are concerned, it should be noted that in the very last years of the apartheid regime, the legislature passed the Security Officers Act 92 of 1987, which established a regulatory body called the Security Offers Board. An important part of this Act was repealed in 2001 by the Private Security Industry Regulation Act 56 (PSIRA). This new Act established the Security Industry Regulating Authority (SIRA), which controls the registration of private security providers and sets up national standards for recruitment, training, etc on a national level. Although focused on security companies operating nationally, it is worth noting that PSIRA expressly applies itself extraterritorially under section 39.3 Of course, the reality of how this could be enforced is not addressed.

3 ‘(1) Any act constituting an offence in terms of this Act which is committed outside of the Republic by any security service provider, registered or obliged to be registered in terms of this Act, is deemed to have been committed in the Republic. (2) Any offence in terms of this Act is, for the purpose of determining the jurisdiction of a Court to try the offence, deemed to have been committed (a) at the place where it was actually committed; (b) at the place where the accused is resident; and (c) at the place where the accused conducts his or her business.’

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Three aspects of the activities of the private military and security industry are particularly regulated in South Africa. They are: the provision of ‘assistance or service’; the use of firearms; and the import and export of military and security services.

A. Assistance or Service The provision of ‘assistance or service’ is subjected to an authorisation and registration regimes. (i) Authorisation Regime At the outset, the Mercenary Act prohibits and criminalises mercenary activities.4 It then goes on to provide for a regulatory framework for what it defines as ‘assistance or service’ in an area of armed conflict, which includes ‘security services’.5 Unlike the RFMA, its predecessor, the Mercenary Act, defines ‘security services’ with reference to a variety of acts, including guarding and protection services, security advisory services and training, installing, servicing or repairing security equipment, and monitoring signals or transmissions.6 This definitional approach is also adopted in the PSIRA. ‘Assistance or service’ also includes any form of military or military-related assistance, service or activity, or any form of assistance or service to a party to the armed conflict by means of advice or training, personnel recruitment, medical or paramedical services, or procurement of services.7 Moreover, this Act prohibits the provision of certain assistance or services in a country of armed conflict or regulated country,8 and the enlistment of South Africans in any armed forces other than the defence force, unless authorisation has been granted to that extent.9 The definition of ‘armed conflict’ in the Mercenary Act is extensive,10 4

Section 2. Section 1. 6 ibid. 7 Section 3. 8 ibid; a ‘regulated country’ is defined in s 6(1) as any country in which an armed conflict either exists or is imminent. 9 Section 4(1). 10 ‘Armed conflict’ includes any armed conflict (a) in a regulated country or area, proclaimed as such in terms of section 6; (b) in any other country or area which has not been so proclaimed, between (i) the armed forces of a foreign state and dissident or rebel armed forces or other armed groups; (ii) the armed forces of foreign states; (iii) armed groups within a foreign state; (iv) armed forces of any occupying power and dissident or 5

South Africa 491 and includes a mechanism for the National Conventional Arms Control Committee (NCACC) to proclaim a country or area to be in ‘armed conflict’.11 The situation of a government committee making a public declaration of whether an area in another country is in armed conflict or not is certainly a novel one. The efficacy of such a system will have to be proven. Despite the general prohibition, there is a possibility to apply for authorisation to provide assistance or service. Any person who applies for authorisation provided for in section 3(1)(a)–(e) or section 4(1)12 of the Act must submit an application for authorisation to the NCACC in the prescribed form and manner.13 The NCACC is the licensing authority for all arms exports, including foreign military assistance, established under section 2 of the National Conventional Arms Control Act 41 of 2002. Authorisation may be granted unless: it is in conflict with South Africa’s legal obligations under international law; would result in the infringement of human rights and fundamental freedoms in the territory where the assistance or service is to be rendered; endangers the peace by introducing destabilising military capabilities into the region or territory where the assistance or service, or humanitarian aid, is or is likely to be provided or rendered; would contribute to regional instability or negatively influence the balance of power in such region or territory; in any manner supports or encourages any terrorist activity or terrorist and related activities; contributes to the escalation of regional conflicts; in any manner initiates, causes or furthers an armed conflict, or a coup d état, uprising or rebellion against a government; or prejudices the Republic’s national or international interests.14 The NCACC must keep a register of all authorisations issued.15 (ii) Registration Regime As already stated, the SIRA was established under the PSIRA and was entrusted with the responsibility of, amongst other things, receiving, considering and suspending or withdrawing applications for, or renewal of, registration from the security service providers. The SIRA is also required to gather information regarding registration and to protect security officers/employees who may be exploited within the industry. The main enforcement mechanisms at the SIRA’s disposal include inspections conducted by inspectors who have been given peace officer status rebel armed forces or any other armed group; or (v) any other combination of the entities referred to in subparagraphs (i)–(iv). 11 Section 6. 12 See below. 13 Section 7. 14 Section 9. 15 Section 8.

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so as to effectively enforce its regulations. Accordingly, directives may be given to non-complying security service providers and, if not followed, their application may be rejected. Consequently, they could no longer operate for not being registered with the SIRA.16 Improper conduct is also dealt with by the SIRA which may impose fines or other penalties, and companies legally registered may see their registration suspended or withdrawn.17 In addition, the Private Security Industry Levies Act18 (Levies Act) makes provision for the imposition of levies by the SIRA, and establishes a framework for the management and payment of levies, as well as the consequences of non-payment. The Levies Act also makes provision for the assessment of the SIRA’s performance with regard to decisions made.19 Since stricter levies (and stricter criteria for registration) are imposed, any person wishing to establish a security company to make a quick profit (so-called fly by-night companies) would possibly be deterred by the strict regulations and levies, or perhaps not even qualify to register at all due to the financial and regulatory implications.20

B. Use of Firearms Provisions are made for the use of firearms in the context of armed conflict, and in that of the provision of security services domestically. (i) Armed Conflict Situations The Mercenary Act does not expressly regulate the use of firearms, but its scope of application in this respect is determined by the interpretation given to the expression ‘armed conflict’ contained in its text. However, any interpretation thereof must take into consideration the Constitution, which constitutes the legal basis for, and provides a general legal framework of interpretation to, all South African legislation. As regards foreign military assistance, the stipulation of section 198(b) of the Constitution to the effect that ‘the resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in terms of the Constitution or national legislation’, may be interpreted as making it illegal for South African citizens to use firearms in situations of armed conflicts 16

Section 34(3)(a) of the PSIRA. Sections 4(g) and 26 of the PSIRA. 18 Act 23 of 2002, this Act was assented to on 24 July 2002; it has not yet come into force. 19 Section 7. 20 J Berg ‘The Private Security Industry in South Africa: a Review of Applicable Legislation’ (2003) 16 South African Criminal Journal 189. 17

South Africa 493 to which South Africa is not a party. Section 1(1) of the Mercenary Act defines ‘armed conflict’ as including any: (a) situation in a regulated country proclaimed as such in terms of section 6; and (b) armed conflict in any country which has not been so proclaimed, between: (i) the armed forces of such country and dissident or rebel armed forces or other armed groups; (ii) the armed forces of any states; (iii) armed groups; (iv) armed forces of any occupying power or dissident or rebel armed forces or any other armed group; or (v) any of the entities referred to in subparagraphs (i)–(v). This definition is not exhaustive. It implies that, in addition to the ordinary meaning of ‘armed conflict’ under international law, it includes other situations such as those proclaimed by the President as an armed conflict in terms of section 6 of the Act, and armed conflict between entities mentioned in points (i)–(v) above. A view is held that the definition will ensure that, in the proclamation of ‘regulated countries’, the exercise of discretion by the National Executive would have to remain within the legal framework of international humanitarian law and what is legally regarded as ‘armed conflict’ under international law. (iii) Provision of Security Services The use of firearms by the security industry is subject to regulations passed by the Minister for Safety and Security in terms of the PSIRA. In 2002, the Private Security Industry Regulations21 (Security Regulations) were drafted in order to regulate the industry’s possession and use of firearms. Of relevance to the present theme is section 13(5) and (6) of these Regulations, whereby a security officer may not use his/ her own firearm whilst employed by a security company, since it is the company’s responsibility to provide the weapon. This prohibition constitutes a break with past practices which allowed security officers to use their own weapons whilst on duty. The requirement that security guards be supplied with firearms by their employers may prove problematic in the South African security context in that it may contribute to increasing the number of weapons already in circulation in South African streets. Of particular significance for the provider of security services is the Firearms Control Act 60 of 2000, which sets the conditions for the issue, limitation and use of firearms. This Act states that a competency certificate 21

Regulations adopted in application s 35 of the PSIRA.

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is required before a firearm is issued. Such a certificate ensures that those in the security industry needing a firearm are trained at an accredited training facility.22 The Act places a limitation on persons capable of using firearms by allowing only those aged 21 and older to be issued them.23 In addition, the issue of certain categories of weapons is prohibited in all situations; this prohibition applies to automatic firearms and to any military-type weapons.24 Security companies, which are in fact the actual licence holders for weapons transferred to their employees, may lose their licence if such weapons were to be given to incompetent individuals, such as intoxicated persons, unstable, or mentally ill persons, or persons known for inciting domestic violence.25 Another important stipulation of the Firearms Control Act is that, when carrying a firearm, it must be completely concealed in a holder or something similar. Any conviction immediately disallows the carrying of a firearm. The Act also makes provision for the prohibition of firearms in so-called firearm-free zones.26 Firearm-free zones are areas declared by the Minister of Safety and Security to be firearm free. However, on-duty South African Police Service officials, security officials and certain security officers may be exempt from this restriction.

C. Import and Export of Military and Security Services As stated at the outset, the RFMA was passed in 1998 to give effect to section 199 of the Constitution. It dealt in part with questions relating to the import and export of military and security services. (i) The RFMA The enactment of this Act aimed primarily at curbing the destabilising activities of apartheid-era soldiers and security personnel in foreign countries through PMSCs such as Executive Outcomes. The declared purpose of the RFMA was to ban mercenary activity outright, and to regulate the provision of military services abroad.27

22

Section 4(1). Sections 20, 102, 103 and 28(1)(c). 24 Section 4(1). 25 Sections 20, 102, 103 and 28(1)(c). 26 Section 140. 27 C Holmqvist, ‘Private Security Companies: The Case for Regulations’, SIPRI Policy Paper No 9 (2005), 52. 23

South Africa 495 (a) Content and Sope The RFMA addressed issues of mercenarism and PMSCs, as well as important aspects of conventional arms control. It defined mercenary activity as involving ‘direct participation in armed conflict for private gain’, and logically banned it outright. It went on to stipulate that no person within South Africa or elsewhere may recruit, use or train persons for, or finance or engage in, mercenary activity. However, the provision of foreign military assistance was not prohibited under this Act; rather, it was strictly regulated as it still is under the Mercenary Act. Like in the latter document, the application of the RFMA was triggered, in most cases, by the existence of an armed conflict. The RFMA established a two-step process for anyone wishing to offer military assistance abroad: first, any such person was required to apply for authorisation with the NCACC. Secondly, it required subsequent scrutiny and approval of each and every agreement reached after the authorisation has been granted. The NCACC is an organ of the executive branch of the state chaired by a state minister having no direct link with the defence industry. Its decisions are subject to the Promotion of Administrative Justice Act and must conform to international law including human rights law. The regulatory framework of the RFMA contained a number of specific flaws, some of which are identified by Singer.28 First, the broad definition of military and security services constituted the key weakness of the Act, rendering many of its provisions inapplicable. It was believed to be too vague and to try to regulate activities that are not military per se, thus resulting in considerable legal uncertainty and arbitrariness. Secondly, the licensing power vested in the NCACC exclusively, thereby granting the executive branch of the state wide discretionary powers, without any possibility of parliamentary oversight. The RFMA was further criticised for excluding ‘humanitarian and civilian activities aimed at relieving the plight of civilians in an area of armed conflict’; and attempts to enforce its provisions encountered difficulties relating to the collection of evidence abroad, as the few cases summarised below will demonstrate. Nevertheless, a brief look at the Mercenary Act reveals that, unfortunately, most of the deficiencies of the RFMA have survived the new enactment. b) Prosecution under the RFMA The Ivory Coast Case. The first prosecution under the RFMA was brought 28 P Singer, ‘War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law’ (2004) 42 Columbia Journal of Transnational Law 521, 540.

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against François Richard Rouget, a former French soldier who became a naturalised South African, who was tried for an attempt to recruit mercenaries in South Africa to participate in the civil war in Ivory Coast. His participation in the Ivorian conflict consisted in militarily assisting the Ivory Coast government in terms of logistical support and equipment, and training of pilots or infantrymen. He was convicted in late 2003 in the Pretoria Regional Court after pleading guilty on a charge of recruiting mercenaries to fight in Ivory Coast.29 After considering the serious nature of mercenary activity, the Pretoria court held that such activity is an embarrassment to the country and should be discouraged. However, due to Rouget’s guilty plea and full disclosure of his involvement, the court finally imposed a very light sentence (a 75,000 Rand fine). Rouget was subsequently reported to be active in Iraq, as is the case with many other South Africans, who continued to be recruited by foreign private military companies to provide military and security services in areas of armed conflict.30 Another case of mercenary activities in Ivory Coast is that of Carl Alberts, a former South African Defence Forces pilot who was sentenced by the Swellendam Magistrate’s Court to two years in jail or a 20,000 Rand fine.31 The sentence was later suspended and Alberts was released after paying 10,000 Rand. The guilty plea and fine formed part of a plea bargain agreement between Alberts and the South African National Prosecuting Authorities.32 In both cases, negotiating a plea bargain agreement was necessary because the prosecution could not produce convincing incriminating evidence to secure an appropriate sentence against the accused. The Zimbabwe/Equatorial Guinea Case. On 7 March 2004, 70 persons— including several South African citizens and Simon Mann, a former British SAS officer—were arrested in Harare in possession of weaponry and were accused of allegedly planning a coup to overthrow the government of Equatorial Guinea. The accused rejected this charge and claimed to be on their way to the Democratic Republic of the Congo to honour a private security contract. They were nevertheless tried by a Harare court for breaching Zimbabwe’s firearms and security legislation, as well as immigration and aviation laws. Sixty-seven of them were 29

Rouget v S (2006) JOL 15962 (T) Case No A 2850/03 [20 May 2005]. A Clamo, ‘Republic of South Africa’, Corpwatch, 6 March 2005; 30,000 private security experts were deployed in Iraq, of whom it was estimated that 5,000–10,000 were South Africans. South Africa was regarded as one of the top three suppliers of personnel for private military/security companies such as Erinys International, Meteoric Tactical Solutions, Sailor Services and Dyncorp. 31 ‘Ivory Coast Hired Gun in Court’, News 24.com, 4 February 2004; ‘Mercenary Activities Land Pilot in the Dock’, Independent Online, 13 February 2004. 32 ‘South Africa: Authorities target alleged mercenaries’, IRIN News, 4 February, 2004. 30

South Africa 497 convicted either of immigration offences or aviation offences, and were sentenced to prison terms ranging from 12 to 18 months. Simon Mann was found guilty of trying to purchase weapons and was subsequently sentenced to seven years’ imprisonment. Only two of the accused were acquitted.33 On completion of their prison term in Zimbabwe, some of the South African citizens returned to South Africa, where they were immediately charged with violating the relevant provisions of the RFMA. However, no conviction was pronounced against most of the returnees under the RFMA; however, two of them were fined 75,000 Rand each, subsequent to a plea bargain agreement, which again played in favour of the accused for lack of evidence. The Equatorial Guinea Case. On 8 March 2004 (one day after the events referred to in the paragraph above), 15 foreign nationals suspected of attempting to overthrow the government of Equatorial Guinea were arrested in Malabo and Bata. Eight of them were South Africans, including Nick du Toit—the alleged ringleader of the plot and director of Triple Option Trading, a South African PMSC. They were subsequently tried in Malabo for crimes against the Head of State and against the ‘form of government’. Those found guilty were sentenced to terms of imprisonment ranging from 16 months to 65 years.34 Meanwhile, Sir Mark Thatcher, son of former British Prime Minister Margaret Thatcher, appeared before a South African court on charges of breaching the RFMA in relation to the same attempted coup in Equatorial Guinea. Reports state that Thatcher had interests in a company called Logo Logistics, run by Simon Mann, via a South African company called Triple A Aviation, which was operating as Air Ambulance Africa by Crause Steyl.35 Thatcher was finally arrested in August 2004 and charged with breaching the RFMA. He subsequently entered a guilty plea to a lesser charge, conceding that his conduct might have recklessly but unwittingly contributed to the financing of the coup d état in Equatorial Guinea. He finally was fined 3 million Rand and requested to continue to collaborate with the national prosecuting authorities of South Africa and Equatorial Guinea. The foregoing few cases brought to light a number of difficulties encountered in the implementation of the RFMA. First, the difficulty of gathering evidentiary materials in foreign countries to secure convictions 33 For more details on this case, see Case No 12967/2004 Kaunda and Others v President of the Republic of South Africa and Others 2004 (5) SA 191 (T); see also Case No CCT 23/04 Kaunda v President of the Republic of South Africa 2005 (4) SA 235 (CC). 34 See Case No 14/2004; also Amnesty International ‘Equatorial Guinea—A Trial with too Many Flaws’, AFR, 24 May 2005. 35 Case No 14/0339/2004 State v Steyl and Another Regional Court, Pretoria; see also State v Mark Thatcher High Court of South Africa, Cape Provincial Division, 5 December 2005 (Unreported); M Hollingsworth and P Halloran, Thatcher’s Fortunes—The Life and Times of Mark Thatcher (Edinburgh, Mainstream Publishing, 2005).

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has forced the prosecuting authorities to opt for plea bargain agreements with the accused, the consequence of which is the imposition of lighter sentences that do not serve any deterrent purpose. Secondly, the enforcement of certain provisions of the RFMA, such as those applying extraterritorially, has proved to be rather difficult in practice. Despite a reduced number of prosecutions under the RFMA, this Act could still be regarded as having reached one of its main objectives in that it is probably the reason why Executive Outcomes moved its activities outside South Africa. This relative success, however, did not stop the continuing recruitment of mercenaries from South Africa, or the active involvement of South African citizens in various theatres of armed conflict in Africa,36 Iraq and elsewhere in the world in violation of the RFMA. This embarrassing state of affairs prompted Mr Thabo Mbeki, the President of South Africa, to signal the government’s intention to ‘review the Foreign Military Assistance Act in order to discourage, for their own good and for the good of the country, those who seek to profit from conflict and human suffering such as in Iraq’.37 The Mercenary Act was subsequently adopted in replacement of the RFMA, with the declared intention to correct the latter’s deficiencies. (ii) The Mercenary Act of 2006 The Mercenary Act was assented to and signed by the State President of South Africa on 12 November 2007. However, the regulations required for its entry into force and effective implementation have not yet been issued. Accordingly, to date the Act is not yet operational. This will occur when the State President proclaims it to be so in the Government Gazette, as required under section 16 of the Mercenary Act. There has been some pressure on the South African government to bring this Act into force.38 (a) Enlistment in Foreign Armed Forces Unlike the RFMA—which is silent on the issue of enlistment of South Africans in the armed forces of other States—the Mercenary Act per section 4 prohibits such enlistment if performed without an authorisation from the NCACC. Any person who contravenes or fails to comply with section 4 is guilty of an offence and liable upon conviction to a fine or

36 PC Jacobs, ‘South Africa’s New Counter Mercenary Law’ (2008) 30 Strategic Review for Southern Africa 87. 37 State of the Nation Address of February 2005. 38 www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10545& LangID=E.

South Africa 499 imprisonment, or both.39 Even if such authorisation is granted, it may be revoked by the NCACC if the holder thereof takes part in an armed conflict as a member of an armed force other than the National Defence Force of the Republic, or if it turns out to contravene any of the criteria listed in section 9 of the Mercenary Act.40 Section 4 thus gives effect to section 198(b) of the Constitution. For persons already enlisted with foreign armed forces, the Mercenary Act criminalises continued enlistment if a citizen of the Republic fails to apply to the NCACC for the required authorisation within six months from the commencement of the Act, as provided for in section 15(2). Once such an application is filed, the citizen may remain enlisted until the application is decided.41 (b) Provision of Certain Assistance or Rendering of Services in Area of Armed Conflict Under section 3, paragraph 1 of the Mercenary Act, no person within South Africa or elsewhere shall either provide any assistance or render any service to a party to an armed conflict or in a regulated country, nor negotiate or offer to do so.42 This provision also prohibits persons within South Africa or elsewhere from recruiting, using, training, supporting or financing any person to provide assistance or render any service to a party to an armed conflict or in a regulated country; and from performing any other act in furtherance of the military interests of a party to an armed conflict or in a regulated country.43 However, any person or organisation wanting to engage in any of the conduct referred to above is required to seek an authorisation from the NCACC, in terms of section 7 of the Act. Any person who contravenes the provisions of section 3(1) is guilty of an offence in accordance with subsection 3(2) of the Act. The scope of section 3 of the Mercenary Act is too broad and may turn out to be difficult to enforce. In effect, the use of the words ‘person’ or ‘any person’ would encompass both South African and foreign citizens. Likewise, reference to ‘within South Africa or elsewhere’ makes it clear that the Act is not intended to apply within South Africa only; it may

39

Section 10(1) of the Mercenary Act. Under s 9 of the Mercenary Act, an authorisation may be revoked, for example, if it conflicts with South Africa’s obligations under international law, if it would result in the infringement of human rights and fundamental freedoms where the assistance or service is to be rendered, etc; see section 2.1 above for other criteria. 41 Section 10(2). 42 Sub-sections (b) and (a). 43 Sub-sections (c) (d) and (e). 40

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also apply extraterritorially. It remains to be seen how the South African authorities intend to implement the provisions of section 3. (c) Provision of Humanitarian Assistance in Country of Armed Conflict Section 5 of the Mercenary Act provides that no South African humanitarian organisation may provide humanitarian assistance in a country where there is an armed conflict or in a regulated country, unless such organisation has been registered with the NCACC for that purpose. However, section 13 allows the President, as Head of the National Executive, to grant exemption from this requirement in order to facilitate the rendering of humanitarian aid without delay, to relieve the plight of civilians in armed conflict. Any person who fails to comply with the conditions defined in section 13 is guilty of an offence and liable upon conviction to a fine or imprisonment, or both.44 The distinction between humanitarian non-profitable organisations and corporations working for pecuniary gain is blurred in this legislation as a result of the negative experience of the phenomenon of private military and security companies. Humanitarian aid agencies may have difficulties in carrying out their work under the new legislation.45

I V. OT HER AP P LIC ABLE LAWS AN D R E G U LATION S UN DER P SIRA

Sections 22 and 23 of the Constitution are particularly applicable to the private security industry. Section 22 guarantees the freedom of trade, occupation or profession, which may be regulated by law. Section 23 deals with the issue of labour relations46 and is also particularly applicable to the private security sector in that it protects the rights of workers and employers regarding unionisation and fair labour practices. The PSIRA greatly extends the scope of its application by defining the expression ‘security service providers’ as including both officers and businesses. Reference is made to previously excluded security service providers, such as locksmiths, private investigators, security training or instruction providers, manufacturers, importers and distributors of monitoring devices, installers of security equipment, labour brokers, those who monitor electronic security equipment and those who 44

Section 10(1). ‘South African Humanitarian Groups Will Also Have to Register with NCACC Before Providing Humanitarian Assistance’, www.unhcr.org/refworld/docid/4843fff9c.html. 46 See especially sub-ss (1)–(6). 45

South Africa 501 manage or control the rendering of security services, that is, managers of companies.47

A. General Obligations of PMSCs Under the enforcement mechanisms available to the SIRA, in order to qualify for the provision of security services and remain eligible as active security service providers, private security companies must register or renew their registration with the SIRA, and train their employees. They must also fulfil certain financial obligations, be expected to comply with all relevant legislation, and allow for the inspection of their premises and documentation. Moreover, obligation is made to security service providers to adhere to a code of conduct as stipulated by the PSIRA.48 The Code of Conduct49 as adopted on 1 March 2003 places the SIRA under an obligation to be cooperative and accommodating in performing its duties. It must also fulfil a certain number of obligations towards the state and state security services, towards the public and towards the private security industry itself. The Code is, in essence, designed to promote the stability, status and efficiency of the industry, while endeavouring to prevent crime and promote public and client interests. It directly addresses certain categories of security service providers, such as locksmiths, private investigators and those providing training. The Code imposes a variety of duties on the security service employer: namely, general duties, duties relating to the verification of the background and status of security officers, and similar matters, duty to keep security officers informed, and duties regarding discipline and penalties for improper conduct.50 The Improper Conduct Enquiries Regulations51 spell out the procedure to be followed when conducting an enquiry into the conduct of a security service provider.

47 These security service providers had to be registered with the SIRA by 1 March 2003 and have their applications in by 1 December 2002. 48 Section 28(1) of the PSIRA; as regards delictual liability under the PSIRA, see generally Hirsch Appliance Specialists v Shield Security Natal (Pty) Ltd 1992 3 SA 643(D); Fawcett Security Operations (Pvt) Ltd v Omar Enterprises (Pvt) Ltd 1992 4 SA 425 (ZS). 49 Code of Conduct for Security Service Providers of 2003. 50 See generally Compass Motor Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 2 SA 520 (W). 51 Adopted on 1 March 2003 in terms of s 35(1)(h) of the PSIRA.

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B. Legal Discipline on Training One of the most important functions of the SIRA consists in ensuring that a certain standard of training is maintained within the security industry. In this respect, the Training Regulations52 adopted in application of section 32(1) of the Security Officers Act 92 of 1987 sets the criteria governing the training of security employees. These Regulations basically regulate two aspects of the functions of the Security Officers’ Board: namely, the delivery of accreditation certificates to the security employer and the issuance of training certificates to those security personnel who have completed training to a satisfactory standard at an accredited training institution. Moreover, the Regulations establish the procedure to be followed in case of expiry or withdrawal of accreditation certificates. They also provide for a series of prohibitions, penalties and offences which are related to the provision of security services by non-trained or inappropriately trained personnel.

V. C RIMIN AL RESP ON SIBILITY

A. Prohibition of Military Activity Abroad The Mercenary Act prohibits and criminalises certain military activities performed by South African citizens or residents within countries in which there is an armed conflict. The Act also aims at military activities which are capable of being performed in peacetime in foreign countries but with some connection to armed conflict, government overthrow or similar activities. Such activities include: participating as a combatant for private gain in an armed conflict; directly or indirectly recruiting, using, training, supporting or financing a combatant for private gain in an armed conflict; directly or indirectly participating in any manner in the initiation, causing or furthering of an armed conflict, or a coup d état, uprising or rebellion against any government; and directly or indirectly performing an act aimed at overthrowing a government or undermining the constitutional order, sovereignty or territorial integrity of a state.53 Moreover, the Act provides for a redrafted offence prohibiting mercenary activity.54 This offence contains elements of the previous definitions of ‘mercenary activity’ and ‘foreign military assistance’ already present in the South African criminal law system as classical mercenary activities.

52 53 54

Security Officers’ Board Training Regulations of 1992. Section 2. See also Criminal Law Amendment Act 105 of 1997.

South Africa 503 B. Extraterritorial Prosecution of Illegal Military Activity Abroad The exercise of military activities abroad by South African citizens may be prosecuted in South Africa under the Mercenary Act, the International Criminal Court Act55 and the Terrorist Act.56 (i) The Mercenary Act The Mercenary Act has extraterritorial application in that an alleged offence in violation of its provisions, committed outside the Republic by a South African citizen, a person ordinary resident in the Republic, a company incorporated or registered as such in the Republic, and any body of persons, whether corporate or incorporate in the Republic, may be prosecuted by a competent South African court, which may convict and sentence the accused, if found guilty.57 The definition of ‘person’ in the Act is restricted in its meaning to a citizen, a permanent resident, a juristic person registered or incorporated in the Republic, or any foreign citizen who contravenes the provisions of the Act within the border of South Africa (an example would be a foreign person who recruits, trains or finances mercenaries in South Africa). Therefore, a South African citizen who recruits or trains mercenaries either within or outside the Republic may be prosecuted in a South African court, but a foreign citizen may be prosecuted in a South African court only if such recruitment, training or financing took place in South Africa. (ii) The ICC Act The Rome Statute of the International Criminal Court58 established the International Criminal Court (ICC), which has jurisdiction over cases of war crimes, genocide and crimes against humanity. Should mercenaries or employees of private military and private security companies commit crimes falling within the jurisdiction of the ICC, they could be prosecuted for those crimes by the ICC. Although mercenary activity is not mentioned specifically as falling within the jurisdiction of the ICC, mercenary status may prove to be an aggravating factor when an offender is sentenced.59 South Africa is a party to the Rome Statute, and has incorporated its provisions into its domestic legal system by 55 Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act). 56 Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 (Terrorist Act). 57 Sections 11(a)–(d) and 2 (a)–(b). 58 Text available at www.icc-cpi.int/about.html. 59 United Nations, ‘The Impact of Mercenary Activities on the Right of Peoples to Selfdetermination’, Fact Sheet no 28, undated, para 7(c)21.

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adopting the ICC Act. This legislative enactment outlaws any conduct giving rise to genocide, crimes against humanity and war crimes. It also provides for the prosecution in South African courts of persons accused of having committed such crimes in South Africa and beyond the borders of South Africa in certain circumstances; for the arrest of persons accused of having committed the said crimes and their surrender to the said Court in certain circumstances; and for cooperation with the ICC in realising the objectives of the Court’s Statute. (iii) The Terrorist Act There is no doubt that mercenarism and terrorism share certain commonalities, at least as far as the criminal nature of their acts is concerned. However, the basic difference between terrorist acts and mercenary acts lies in the motive. The terrorist’s motive usually is of a political, economic or religious nature, whereas the mercenary is motivated solely by private gain.60 This distinction of motive is not required in the applicable terrorism laws, however. The 1997 International Convention for the Suppression of Terrorist Bombings (to which South Africa is a party) establishes a universal jurisdiction over the unlawful and intentional use of explosives and other lethal devices in, into or against public places with intent to kill or cause serious bodily injury, or with intent to cause extensive destruction of public places, irrespective of the motive. The basic terms of this instrument are reiterated in the South African Terrorist Act, which criminalises terrorist activities. The Terrorist Act creates a possibility for mercenary activities committed in or from South Africa to fall simultaneously within its own ambit and within the ambit of the Mercenary Act.

C. Criminal Procedure Act The South African Criminal Procedure Act61 is particularly relevant to the private security industry in that it grants them certain residual powers that are necessary to perform their security duties without infringing upon the public police officers’ powers of arrest, searchand seizure. Thus, instead of being strictly regulatory, this Act enables the private security sector to function within the realms of the prescribed law. Section 42(3) of this Act states, for instance, that ‘the owner, lawful occupier or person in charge of land’ may arrest a person believed to have committed any offence or who is in the process of committing 60 61

PC Jacobs, above n 36, 76. Act 51 of 1977.

South Africa 505 an offence. Therefore, in order for a private security company to arrest a person on somebody else’s property, the client simply has to allow the private company to take lawful responsibility for the property and security officers may therefore arrest persons committing offences on it.62 Criminal prosecution is a means of effectively enforcing the PSIRA. Managers of private security companies may be held criminally liable under the PSIRA if they fail to comply with its provisions requiring them, for instance, to renew their registration periodically or to inform the SIRA of any change of the company’s name.63 A prohibition may also be granted against an offending company to ensure discontinued operation.64 Information regarding non-compliant security services providers may be made public in order to prevent clients, in terms of section 38(3)(g), from continuing to use that provider’s services. This is a form of ‘shaming’ mechanism that may discredit the defaulting company. Otherwise, security service consumers are legally obliged to ensure that the companies they are using are registered with the SIRA, that all their employees are also registered, that the security officers in the company are in possession of training certificates from accredited training institutions, that they adhere to the industry’s Code of Conduct and that the security officers are paid the minimum statutory wage according to the Sectoral Determination 6.65

V I . C ON C LUSION

Although there is a relatively clear-cut legislative regime in South Africa, specifically governing the provision of services by PMSCs in areas of armed conflict, it is yet to enter into force. Decisive steps have been taken by the South African government to regulate the activities of PMSCs through the implementation of the RFMA of 1998, the PSIRA of 2001 and the Mercenary Act of 2006, and the government needs to follow through in bringing the law into force and better enforcing the existing regime, including that under PSIRA. These legal instruments therefore constitute the main sources of South African legislation in this regard. The Mercenary Act improves the RFMA in many respects: the definition of ‘armed conflict’ contained therein raises no doubt as to the context in which the Act shall apply. The possibility to proclaim ‘regulated countries’ will make it easy to define with certainty when 62 J Berg, ‘The Private Security Industry in South Africa: A Review of Applicable Legislation’ (2003) 16 South African Criminology Journal 194. 63 See ss 20 and 38. 64 Section 27(1)(a) of the PSIRA. 65 Sectoral Determination 6: Private Security Sector South Africa, published in terms of the Basic Conditions of Employment Act 75 of 1997, text available in GG R 1250, 30 November 2001.

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the Act begins to apply to a specific conflict situation, so long as the NCACC is happy to make such a public declaration. Unlike the RFMA, the Mercenary Act defines with more clarity what constitute ‘security services’. In addition, a clear distinction is operated between mercenary activities and the rendering of security, military and intelligence services in armed conflict situations, with the possibility remaining to apply for authorisation in the latter case. Moreover, the provisions relating to the enlistment of South Africans in foreign armed forces and to the provision of humanitarian assistance in armed conflicts have been tightened. Furthermore, the provisions on extraterritorial jurisdiction are brought in line with similar provisions in the Terrorist Act. Finally, minimum penalties for the offences of engaging in mercenary activities and of illegally providing assistance or services in areas of armed conflict are prescribed. It may perhaps be interesting to specify that the applicability of the Mercenary Act can be swiftly activated to deal with urgent situations. In this regard, provision is made for the proclamation of an ‘imminent’ armed conflict, which can be justified in cases of a rapid build-up of armed forces in a conflict situation, or in circumstances where genocide or gross human rights violations are being committed, thus requiring the application of international humanitarian law. The Mercenary Act is supplemented by the PSIRA, which attempts to ensure that private security officials and companies operating within South Africa adhere to a certain number of standards required by the South African constitutional democracy: namely, the basic democratic principles of human rights and fundamental freedoms as enshrined in the Constitution. It also sets out a series of licensing and working standards that shall direct the security industry in the recruitment, training and use of their personnel. Finally, it attempts to standardise the industry and improve its working conditions, as well as the conditions of the private security employees. It is clear that the former South African regulatory scheme (especially the RFMA) plainly exposed the conceptual, practical, legal, political, moral and economic difficulties inherent in the regulation of the activities of PMSCs. Subsequent enactment (the Mercenary Act) has tried its best to adequately address such issues. In sum, the South African approach shows that any serious national regulatory scheme must consider and integrate the transnational dynamic of the private military and security industry and business. Some difficulties remain in this respect. It is hoped that the South African experience will enrich the ongoing debate on the possibility of the EU adopting regional guidelines applicable to PMSCs.

22 Australia: Regulating Private Military and Security Companies TIM MCCORMACK AND RAIN LIIVOJA*

I . I NTRODUC TION

T

HIS CHAPTER CONSIDERS the Australian approach to the national legal regulation of private military and security companies (PMSCs). Despite the tendency of Western governments to respond to the increasing prevalence of PMSCs on military operations by reviewing regulatory frameworks applicable to their activities, the Australian government has thus far not enacted legislation specific to PMSCs. This remains the case even after the adoption in 2008 of the Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies during Armed Conflict (the Montreux Document)1 with the active participation of the Australian government. Part of the explanation of this situation is that the Montreux Document is regarded as a codification of existing international law, which has already been domestically implemented, rather than a source of new obligations. Furthermore, the Australian government is currently participating in the work of a Steering Committee established under the International Code of Conduct for Private Security Service Providers, which was adopted in November 2010 by a sizeable group of major PMSCs.2 The Steering Committee is currently devising an independent

* The updating of this paper for publication was supported by a Research Collaboration Grant awarded by the University of Melbourne. 1 See www.icrc.org/web/eng/siteeng0.nsf/htmlall/montreux-document-170908. 2 See www.icoc-psp.org.

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governance and oversight mechanism for PMSCs that may well require domestic implementation in Australia.

I I . T H E AUSTRALIAN P RIVATE MILITARY AND SEC URITY IN DUSTRY

The Australian private military and security industry is a relatively small player in the global marketplace. The Australian military, with some 56,000 uniformed members,3 is a relatively small force and, as a consequence, the scale of military support services available for contract is limited. In addition, Australia has been relatively careful in relying on the private industry in defence matters. Even military production has not been entirely privatised; instead, Australia has maintained a government-owned manufacturing capability. In fact, contrary to global trends, in 2000 the Australian government acquired ASC, a naval defence company, formerly known as the Australian Submarine Corporation. However, for many years government-owned entities have been forced to compete on a ‘level playing field’ basis with the corporate military production industry for Australian Defence Force (ADF) military equipment. The policy of competitive tendering for the supply and technical upgrading of military equipment has spawned a significant presence of Australian companies, Australian subsidiaries of multinational corporations and international companies in the marketplace of the Australian military industry. These include Unity Risk (Sydney), DynCorp (Aust) Pty Ltd (Canberra), Agility Logistics Pty Ltd (Adelaide, Brisbane, Launceston, Melbourne, Perth and Sydney), Kellogg Brown and Root Pty Ltd (Adelaide, Brisbane, Canberra, Melbourne, Perth and Sydney), Insitu Pacific (Brisbane), BAE Systems (Australia) Ltd (many locations around Australia), Thales Australia Limited (35 sites across the country) and Hart Aviation (Canberra, Melbourne and Perth). However, while billions of dollars are committed to hardware procurement contracts—for example, the construction of three new air warfare destroyers at shipyards in Adelaide, Melbourne and Newcastle, and the planned manufacture in Australia of a new class of non-nuclear-powered submarines—the amounts are significantly less for the contracting of services to the private military and security industry. Thus, Australian companies and subsidiaries of international corporations offering military and security services are, understandably, fewer in number than those in the market for the supply of military hardware. Yet the notion of private contractors providing logistic support services

3

The Military Balance 2011 (International Institute for Strategic Studies, 2011), 223.

Australia 509 to the ADF is far from novel. Consider the following example almost 100 years ago: On 1 November 1914, less than ninety days after the start of World War I, the initial Australian and New Zealand contingent of 21,529 men and 7,882 horses departed Fremantle aboard thirty-eight merchantmen that had hastily been converted into transports . . . [E]very one of those transports was a civilian-crewed merchant vessel, as were the ships that six months later took the same troops from Palestine to Gallipoli, where many were landed in lifeboats manned by merchant sailors. Australia has always relied on private assets and civilians to directly support its military endeavours, especially in the mass mobilisations of the 20th century.4

The ADF, consistent with most other national militaries from economically developed countries, has increasingly contracted a broader range of services to the private sector beyond troop carriage by merchant vessel or civilian aircraft.5 The Australian experience of greater private sector efficiency at reduced economic cost across a range of services is all too familiar to many other Western militaries. However, unlike some of its major military allies—the US, the UK and Canada in particular—Australia has taken a more cautious approach to the range of activities it has been prepared to devolve. The majority of contracts are for logistics support, including, for example, air and sea transportation, rotary wing aviation, catering and accommodation, cleaning and laundry, fleet and camp maintenance, vehicle repair and maintenance, fuel procurement, storage and handling, and dental and medical services.6 Until recently, the Department of Defence maintained the practice of refusing to contract out to private corporations any direct military functions. Although ‘gatekeeping’ security at most defence bases and establishments in Australia is provided by private companies— with security at the most sensitive establishments being conducted by personnel from the Australian Federal Police (AFP)—the provision of armed security to Australian diplomatic personnel in Iraq and Afghanistan was consistently the responsibility of an ADF contingent and not a private security company. However, in 2006, Control Risks Group, a firm headquartered in 4 P Jennings, ‘Director’s Introduction’ in M Thomson, ‘War and Profit: Doing Business on the Battlefield’ (Australian Strategic Policy Institute Strategy Paper, March 2005) 1. 5 See M Forbes, ‘Privatised Future of the War Zone’, The Age, 31 March 2005, where the author claims that: ‘Nearly two-thirds of non-core defence functions, including catering, base support, maintenance and some pilot training, has been privatised in Australia.’ 6 One of the major Australian companies providing defence logistics support is Toll Remote Logistics (formerly PDL Toll and Patrick Defence Logistics)—a subsidiary of the Australian transport conglomerate Toll Holdings. Toll Remote Logistics maintains a website with extensive information about the range of services the company offers as well as case-study-specific information about company services in particular situations. See www.tollremotelogistics.com for more details.

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London, was contracted to provide security to the Australian embassy in Kabul.7 In 2010, the contract was handed over to Hart Security, another British firm. As regards Iraq, since 2010 the Australian embassy in Baghdad has been protected by Unity Resources Group (URG), a Dubai-based company with significant Australian connections.8 URG in turn promptly subcontracted some of its tasks to a group of Chilean paramilitary and military veterans.9 Other Australian government agencies appear to operate on the basis of the same practice as the ADF. The AFP, for example, are increasingly deployed on missions in Timor Leste, Papua New Guinea and the Solomon Islands because the instability in those particular nations has required the application of effective policing functions more than a military response. In the particular case of the multilateral Regional Assistance Mission to the Solomon Islands (RAMSI), the lead nation is Australia through the AFP. One of the highest public profile current private contracts is an AUD 49 million per annum arrangement for the delivery of logistics support (garrison support, medical and dental services, land, sea and air transportation, catering, and vehicle and equipment repair and maintenance services) to RAMSI.10 Although gatekeeping security services for the RAMSI base are provided by a local private security company in Honiara, those personnel remain unarmed and the protective services officers of the AFP maintain a presence at the base for any escalation in security threat. There are a number of Australian companies in the marketplace for defence and other Australian government agency contracts. Toll Remote Logistics and ATACS are two leading examples. To date, there is no peak industry body in Australia—unlike the peak bodies in the US and the UK—the International Stability Operations Association (ISOA) and the British Association of Private Security Companies, respectively. The US parent companies of the Australian subsidiaries referred to above are all members of ISOA. One Australian-owned company, Unity Resources Group, has chosen to establish its international headquarters in Dubai rather than in Australia. Presumably the corporation believes that it can significantly increase its international market share by establishing itself

7 D Welch, ‘Security Outfit Killed Civilians, Gets Embassy Job’, The Age, 19 August 2010, available at www.theage.com.au/national/security-outfit-killed-civilians-gets-embassyjob-20100818–12f4w.html. 8 D Welch, ‘Australian Troops Ruled Out of Guarding Embassy Staff in Kabul’, Sydney Morning Herald, 6 December 2010, available at www.smh.com.au/world/australian-troopsruled-out-of-guarding-embassy-staff-in-kabul-20101205–18lf4.html. 9 J Mendes and S Mitchell, ‘Chilean Mercenaries Guarding Australian Embassy’, ABC News, 15 September 2010, available at www.abc.net.au/news/stories/2010/09/15/3012139. htm. 10 See Forbes, above n 5. The successful tenderer for the contract was PDL Toll.

Australia 511 in the Middle East. URG is a member of ISOA11 and, as such, subscribes to the Association’s Code of Conduct.12

I I I . D OMESTIC SEC URITY AN D I NV E S TIGATION SERV IC ES

The Australian domestic security and investigation services industry is large and heavily regulated. The peak national professional body is the Australian Security Industry Association Limited,13 and virtually all providers of security services in Australia are members of the Association. All members commit themselves to a Code of Professional Conduct.14 In the Australian system of federalism the legal regulation of domestic security is the responsibility of the state and territory governments and not of the Australian federal government. Consequently, there is no single national legislative framework for the regulation of the industry. Service providers must comply with legislative requirements for registration and licensing in each of the respective Australian states and territories in which they seek to operate.15 Although the existence of eight separate legislative regimes (six states and two territories) may appear cumbersome, there is sufficient uniformity of approach across the eight jurisdictions to warrant at least some security service providers offering their services across the entire nation. In particular, all Australian jurisdictions require all security personnel to be registered and licensed individually and, in addition, most jurisdictions also require security companies to be registered and licensed. The reality of eight separate legislative regimes creates some disparity in the legal definitions of security services. For example, the definition of a ‘security activity’ subject to legal regulation in the State of New South Wales (NSW) is extremely detailed.16 In contrast, the definitions of ‘crowd control activities’ and ‘security guard activities’ subject to legal regulation in the State of Tasmania are couched in general terms and are significantly less detailed.17

11

See See 13 See 14 See 15 For tion, see 16 See 17 See 12

www.ipoaworld.org/eng/isoamembers/84-unity.html. www.ipoaworld.org/eng/codeofconduct.html. www.asial.com.au. www.asial.com.au/Codeofconduct. a list of the eight separate legislative regimes with links to the relevant legislawww.asial.com.au/Legislationandregulations. Security Industry Act 1997 (NSW), s 4. Security and Investigation Agents Act 2002 (Tasmania), ss 3A and 3B.

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Tim McCormack and Rain Liivoja I V. R E G U LATION OF ARMED FORC E

There is no general constitutional (or other legal) right to bear arms in Australia, and possession, ownership and use of guns and other lethal weapons is strictly regulated. As with legislation governing private security services, the federal system of government in Australia allocates responsibility for the regulation of armed force to the states and territories and not to the federal government. Consequently, there is no Australian national register of firearms, and there are eight separate legislative enactments for the legal regulation of firearms. However, in contrast with disparate approaches to the legal regulation of the domestic security industry, the Australian states and territories have established and uniformly implemented a consistent system of firearm regulation—the prohibition of private ownership of automatic and other military-style weapons, and strict registration and ownerlicensing of other types of weapons. The massacre of 34 individuals by a lone gunman possessing unregistered automatic and semi-automatic weapons at Port Arthur in Tasmania in April 1996 provided the catalyst for unprecedented national cooperation in relation to gun control. Since 1996, all state and territory police departments maintain registries of firearm ownership within their respective jurisdictions.18 Australian firearms legislation does not apply extraterritorially. Consequently, PMSCs operating outside of Australia would not automatically be governed by this legislation.

V. G OV ERN MEN T P ROC UREMEN T

Any PMSCs established in, or otherwise operating in, Australia will be subject to Australian domestic corporations law, labour law, occupational health and safety obligations, anti-discrimination legislation etc. However, it is not the case that extraterritorial activities by those same corporations are covered by the same Australian domestic legislative framework. In the absence of a specific Australian legislative framework to regulate the activities of PMSCs, the most effective control on their activities is the procurement process. The Australian government is committed to a strict policy of open tendering for its procurement contracts in order to achieve value for money by encouraging competition and to ensure transparency, accountability and effective, efficient and ethical use of public funds. Open tendering in this context extends to include nondiscrimination against foreign corporations—provided that applicable 18 For a list of all eight legislative regimes for the control of firearms, see www.asial. com.au/Firearms.

Australia 513 national legislation or other relevant foreign government policy is not inconsistent with the Australian Government Procurement Guidelines, promulgated by the Department of Finance and Deregulation.19 All Australian government departments and agencies must comply with the Guidelines in their tendering for procurement contracts. Inter alia, the Guidelines require tendering departments and agencies to include specific contractual clauses insisting upon compliance with relevant Australian legislation. The approach of AusAID, the Australian government’s Overseas Aid Agency, is illustrative here. AusAID advertises a list of Commonwealth legislation for prospective tenderers to consider even before they expend any effort in the preparation of tender documentation.20 The possible exclusion from consideration for procurement contracts is undoubtedly the most effective incentive for compliance with various legislative enactments. Those corporations which have secured procurement contracts—particularly for military and police logistics support—certainly will not want to prejudice their prospects for additional future contracts. Their ongoing compliance with relevant legislation will constitute a key performance indicator in establishing a positive track record as they contemplate bids for further contracts. The Department of Defence and the AFP follow similar procurement practices to AusAID.

V I . ANT I -ME R C EN ARISM LEGISLATION AND D E F E N C E EX P ORT C ON TROL

To thwart the activities of Australian members of the Croatian opposition to the Tito regime in Yugoslavia,21 and to prevent Australian nationals from being lured by lucrative financial gains into other civil conflicts, the Australian government enacted the Crimes (Foreign Incursions and Recruitment) Act 1978. The original legislation made it an offence for Australians to ‘engage, in a foreign country, in a hostile activity against the government of that country’ or to enter a foreign country with that purpose. In 1987, the legislation was amended, and it then became an offence to ‘engage in a hostile activity in a foreign State’, ie irrespective of whether such activity was against that state, or to enter a foreign

19 Australian Government, ‘Commonwealth Procurement Guidelines’ (December 2008), available at www.finance.gov.au/publications/fmg-series/docs/CPGs-2008.pdf. 20 Australian Government—AusAID, ‘List of Laws and Guidelines for Contractors Undertaking Activities for AusAID’ (September 2008), available at www.ausaid.gov.au/ business/pdf/Lists_of_Laws_and_Guidelines_for_Contractors.pdf. 21 See I Wing, ‘Private Military Companies and Military Operations’, Land Warfare Studies Centre Working Paper No 138 (October 2010) 32.

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state with that purpose.22 Various acts preparatory to such incursions, including military training or stockpiling weapons, are also punishable under the Act.23 In November 2001, David Hicks, an Australian national, was captured by Northern Alliance fighters in Afghanistan and handed over to US forces. In January 2002, Hicks was transferred to Guantánamo Bay, Cuba and held there for more than five years, pending trial by US Military Commission. Throughout the years of incarceration, the repeated claims of abuse and mistreatment, and the persistent criticism of the lack of fair trial rights in the Military Commission process, there was sustained debate in Australia about whether or not Hicks could have been tried under Australian law in relation to his involvement in Al Qaeda and his armed support for the Taliban. The Australian Attorney General indicated his view that the Crimes (Foreign Incursions and Recruitment) Act 1978 did not provide a legislative basis for the Australian prosecution of Hicks. The difficulty lies with an explicit exclusion: the legislation does not apply to ‘an[y] act done by a person in the course of, and as part of, the person’s service in any capacity in or with . . . the armed forces of the government of a foreign State’.24 While Hicks was in Afghanistan he had armed and prepared himself to fight in support of the government of that country—the Taliban. The fact that Australia did not recognise the Taliban as the legitimate government of Afghanistan did not remedy the limited scope of application of the legislation. While Hicks was incarcerated in Guantánamo Bay, the Australian government amended the Crimes (Foreign Incursions and Recruitment) Act 1978 to broaden its scope of application and to ensure that any Australians wishing to engage in future activities akin to those of Hicks could indeed be tried pursuant to Australian domestic criminal law. This was achieved by making the above-cited exclusion inapplicable where the person engaged in a hostile activity in a foreign state while ‘in or with’ a ‘prescribed organisation’.25 Prescribed organisations are designated by regulation on grounds that they violate human rights, engage in hostilities against Australia or its allies, engage in terrorism or otherwise prejudice the security or international relations of Australia.26 The Crimes (Foreign Incursions and Recruitment) Act 1978 also criminalises the recruitment of people in Australia to engage in any of the proscribed activities and goes as far as to prohibit any attempt to recruit 22 Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6, as amended by Crimes Legislation Amendment Act 1987 (Cth), s 22. 23 Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 7. 24 ibid, s 6(4)(2). 25 ibid, ss 6(5) and (6), as inserted by Anti-terrorism Act 2004 (Cth), s 15. 26 See Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6(8) and Criminal Code Act 1995 (Cth), s 102.1(1).

Australia 515 people in Australia for armed hostility in a foreign country, including as part of the armed forces of the government of a foreign country, without the express approval of the Australian Defence Minister.27 The Act has only limited relevance to the activities of PMSCs. It primarily prohibits individuals from engaging in ‘hostile activities’ abroad and also the recruitment of persons for such activities in Australia. This may be adequate for dealing with what PW Singer has called ‘military provider firms’—companies whose employees engage in actual fighting or direct command and control of field units.28 However, in most instances the Act would not cover ‘military consulting firms’ and ‘military support firms’29 whose operation is more removed from the battlefield, unless their activities would amount to acts preparatory to foreign incursions. Mark Thomson of the Australian Strategic Policy Institute has called for a specific Australian legal regime to regulate the activities of PMSCs. Thomson claims that: What is needed is a precision tool—a regulatory regime that controls what services can be provided and when those services may be provided. In practice this won’t be easy, given the global nature of the private military/security sector and the hazy distinction between routine commercial services and, for example, military logistics and communications. On a purely legal basis, however, the Commonwealth’s powers are more than adequate to legislate in a similar manner to the Crimes (Foreign Incursions and Recruitment) Act 1978.30

This call for a specific legal regime is both timely and appropriate. The existing legislative framework under the Crimes (Foreign Incursions and Recruitment) Act 1978 is neither comprehensive in scope nor specifically directed towards the activities of PMSCs. A specific and comprehensive legal framework is desirable despite the complexities of the range of activities in need of regulation. The Australian federal government unquestionably possesses the constitutional authority to enact such legislation. Thomson goes further by explaining that there is an existing precedent in the Australian approach to preventing the proliferation of weapons of mass destruction: [C]lear precedents exist. Australia already places stringent export controls on general military hardware and militarily applicable technology, and specific measures are in place to control the export of both goods and services that may assist the proliferation of weapons of mass destruction. Thus, there

27

Crimes (Foreign Incursions and Recruitment) Act 1978, ss 8 and 9. See PW Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca, NY, Cornell University Press, 2003) 92–95. 29 ibid, 95–100. 30 Thomson, above n 4, 49 (emphasis added). 28

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appears to be no legal impediment to legislation controlling the export of military services in general.31

Thomson’s chosen example of an existing comprehensive and specific legal regime is an excellent one. The Crimes (Biological Weapons) Act 1976, the Nuclear Non-Proliferation (Safeguards) Act 1987 and the Chemical Weapons (Prohibition) Act 1994 implement Australia’s treaty obligations pursuant to the Biological Weapons Convention (BWC), the Nuclear Non-Proliferation Treaty (NPT) and the Chemical Weapons Convention (CWC), respectively. All three Acts introduce a range of criminal offences for violations of the respective treaties. In the case of both the nuclear and the chemical weapons legislation there are additional elaborate schemes for the issuance of permits to work with certain specified nuclear materials or chemicals enabling the Australian government to be confident of compliance with its reporting and declaration obligations under the NPT and CWC treaty regimes. While all of the above-mentioned Acts implement Australia’s multilateral treaty obligations, there is an additional legislative enactment that extends Australian law significantly further than existing treaty obligations. The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 is intended to provide a catch-all legislative framework to maximise the chances of ensuring that no Australian national or corporation engages in any activity that may, even inadvertently, assist the development of a foreign weapons of mass destruction (WMD) capability. The Act achieves this objective by requiring a ministerial permit for the export of any goods or services to another country or organisation which may assist such a capability. The onus in the legislation is very much on the would-be exporter to seek ministerial permission in the case of any doubt about potential end-use of the exported material. Failure to apply for ministerial permission in any relevant case is itself an offence under the legislation. This is a strict legal regime and, from the perspective of successive national governments, the possibility of embarrassment from inadvertent Australian support for a foreign WMD capability warrants comprehensive and strict legal regulation. Furthermore, the Customs Act 1901 allows the Governor-General, by regulation, to prohibit the exportation of particular goods from Australia.32 In accordance with the Act33 and the Customs (Prohibited Exports) Regulation 1958 made under the Act, the Minister of Defence has promulgated a Defence and Strategic Goods List, which includes military and dual-use equipment, nuclear material, chemicals and toxins, electronics, software and technology. The Regulation prohibits these 31 32 33

ibid. Customs Act 1901 (Cth), s 112(1). See Customs Act 1901 (Cth), s 112(2)(A)(aa).

Australia 517 goods from being exported from Australia unless a licence or permission has been granted by the Minister of Defence.34 Failure to obtain such permission is an offence under the Customs Act 1901.35 As of mid-2011, the Department of Defence was contemplating changes to the Australian defence export control system. The proposal envisions extending the reach of that system to cover services related to listed goods, brokering listed goods or related services, and intangible transfer of technology related to listed goods.36 Both the legislation on the non-proliferation of weapons of mass destruction and the defence export control mechanism are examples of comprehensive yet specific legal regimes that result from the existence of a firm resolve to ensure particular policy outcomes. Furthermore, some aspects of proposed changes in the defence export control system appear to be designed to alleviate US concerns about potentially harmful reexportation of technology of US origin and thereby improve the chances of Australian defence contractors gaining access to such technology.37 If a similar level of resolve existed in relation to the particular problem of the legal regulation of the activities of PMSCs, there is no doubt that an effective legal regime could materialise.

V I I . C R I MI N AL RESP ON SIBILITY

Quite aside from the question as to whether Australia should limit the provision of certain types of military services, there exists the problem that the conduct of PMSCs and their personnel abroad may amount to ordinary criminal offences. Generally, Australia’s domestic criminal law applies to offences occurring within the physical territory of Australia, and on Australian ships and aircraft,38 unless particular legislation provides for a broader scope of application. There are, however, multiple examples of Australian criminal legislation applying extraterritorially on the basis of Australian nationality, or even residency in Australia, and, in certain cases, on the basis of universal jurisdiction. Some of those criminal laws are relevant to the legal regulation of the activities of PMSCs.

34

Customs (Prohibited Exports) Regulation 1958, reg 13E. Customs Act 1901 (Cth), s 233BAB. Australian Government—Department of Defence, ‘Changes to Australia’s Export Control System’ (December 2010) slide 9, available at www.defence.gov.au/strategy/deco/ usec/presentation/US_Treaty_Industry_Presentation.pdf. 37 Regarding the current difficulties, see, eg RL Trope and M Witt, ‘Allies at Sixes and Sevens: Sticky Issues in Australian–US Defence Trade Controls’ (2007) 3(2) Security Challenges 73. 38 See Criminal Code Act 1995 (Cth), s 14.1, defining ‘standard geographical jurisdiction’. 35 36

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A. Defence Force Discipline Act 1982 and ‘Defence Civilians’ The Defence Force Discipline Act 1982 provides the principal legal framework for Australian military discipline and justice. The Act specifies a range of military offences, and section 61 incorporates by reference the entire civilian criminal law applicable in the Australian Capital Territory. By virtue of its section 9, the Act, including the incorporated civilian criminal law, extends to the conduct of ADF members not only in Australia but wherever they are deployed in the world. This is a fundamentally important arrangement because Australian status-of-forces agreements (SOFAs) routinely reserve criminal jurisdiction over military personnel to the Australian government, rendering ADF members immune from host-nation criminal jurisdiction. In securing the primacy of national jurisdiction, it is important that the domestic legislative basis exists to hold ADF members accountable for any offences perpetrated abroad, including international crimes. This legislation also establishes a process for the extension of Australia’s criminal law to civilians, including contractors, accompanying the ADF on deployments external to Australia. The mechanism allows for the designation ‘defence civilian’ for anyone who is not an ADF member and who: (a) with the authority of an authorised officer, accompanies a part of the ADF that is: (i) outside Australia; (ii) on operations against the enemy; and (b) has consented, in writing, to subject himself or herself to ADF discipline while so accompanying that part of the ADF.39 Although defence civilians are not bound by all the aspects of the military discipline regime of the Act, they are notably covered by the extraterritorial extension of Australian criminal law under sections 9 and 61, and can be prosecuted in Australian courts accordingly. It is significant that there is no requirement that a ‘defence civilian’ be an Australian citizen or permanent resident. The ADF routinely utilises the ‘defence civilian’ mechanism on its military deployments, but the characterisation is not compulsory and individuals can opt not to be so characterised. In practical terms, the choice not to be characterised as an Australian ‘defence civilian’ may not create problems of lack of accountability structures, provided any Australian SOFA does not cover such individuals and that they are subject to host nation criminal law.40 39 40

Defence Force Discipline Act 1982 s 3(1), definition of ‘defence civilian’. Thomson, above n 4, 46.

Australia 519 Section 10 of the Defence Force Discipline Act 1982 specifies that Chapter 2 of the federal Criminal Code Act 1995 on ‘General Principles of Criminal Responsibility’ applies to offences under the legislation. Part 5 of Chapter 2 of the Code extends application of all offences to corporate bodies, including those that are punishable by imprisonment. It is difficult to imagine the designation of a corporation as a ‘defence civilian’, but if that were possible the legislation makes it clear that such a corporation could be convicted of criminal offences. It is important to note that the ‘defence civilian’ characterisation does not apply to the personnel of PMSCs who do not accompany the armed forces, but rather provide services to agencies other than the Department of Defence.

B. Crimes (Overseas) Act 1964 When the first Australian police officers were about to deploy in Cyprus as part of a UN peacekeeping operation, the Australian government enacted the Crimes (Overseas) Act 1964. The function of the Act was to extend Australian criminal law to Australians serving overseas under ‘arrangements’ made between Australia and the United Nations but who were not members of ADF (and thus not covered by the Defence Force Discipline Act 1982). In 2003, in view of the deployment of Australians in Papua New Guinea, Solomon Islands and Iraq without direct UN involvement, the Act underwent major revision.41 The scope of the Act was extended and now covers four categories of persons (excluding, however, ADF members or Australian Secret Intelligence personnel42): first, Australians having diplomatic or consular immunity, or benefiting from the immunity of an international organisation;43 second, Australians working under an agreement between Australia and the UN, between Australia and a foreign state, or between the UN and a foreign state, which grants them immunity from local law;44 third, Australians working under a ‘declared agreement’ even where the agreement does not provide for immunity;45 and fourth, Australians engaged by one or other Australian government agency to work in a ‘declared foreign country’ even when they have no immunity.46 41 See Crimes (Overseas) Amendment Act 2003. For explanatory notes, see Crimes (Overseas) Amendment Bill 2003, available at www.aph.gov.au/library/pubs/BD/2003– 04/04bd037.htm. 42 Crimes (Overseas) Act 1964, s 3A(10). 43 ibid, s 3A(1–2). 44 ibid, s 3A(3). 45 ibid, s 3A(4). 46 ibid, s 3A(5–6).

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For the purposes of these provisions, the Attorney General, after consultation with the Minister for Foreign Affairs, may designate ‘declared agreements’ and ‘declared foreign countries’.47 As of mid-2011, Afghanistan, Iraq, Papua New Guinea and the Solomon Islands have been declared by the government as countries to which the legislation applies.48 It is this particular aspect of the legislation that extends the reach of Australian criminal law to the acts of Australian nationals serving with PMSCs engaged by any Australian government agency (including the Department of Defence). The Crimes (Overseas) Act 1964 may also apply to the acts of Australians employed by PMSCs engaged by foreign governments or by international organisations. However, at present the legislation extends only to Australians and persons with permanent residency in Australia,49 but does not extend to other foreign nationals—even where those foreign nationals are employed by Australian PMSCs. It is not difficult to conceive scenarios in which this lacuna in the scope of application of Australian law may well prove to be problematic. The Australian Strategic Policy Institute suggests the following hypothetical scenario. [I]n Iraq, until at least late 2004, contractors working for Australian Government agencies were immune from Iraqi law for acts performed under contract. Suppose a crime were alleged to have been committed by a foreign security guard under contract to the Australian Government, perhaps even a guard working for an Australian firm. Unless the guard’s home state was willing and able to prosecute them or waive immunity under Iraqi law, the accused would not face trial. This could be very embarrassing if the crime were particularly serious.50

Again, section 4 of the Crimes (Overseas) Act 1964 incorporates part 2 of the Criminal Code, so that offences under the legislation apply to corporate bodies as much as they do to individuals. Consequently, Australian PMSCs undertaking proscribed activity in a foreign country or PMSCs registered in Australia or in any other country in the world but engaged in proscribed activities in Australia could be subjected to criminal prosecution pursuant to the Crimes (Overseas) Act 1964.

VIII. C IV IL LIABILITY

Although the criminal law applicable extraterritorially to the acts of Australian nationals and Australian companies is ad hoc and patchy, there is at least some legislation potentially relevant to the activities of 47 48 49 50

ibid, ss 3B and 3C. Crimes (Overseas) (Declared Foreign Countries) Regulations 2003. Crimes (Overseas) Act 1964, s 3, definition of ‘Australian’. Thomson, above n 4, 46–47.

Australia 521 PMSCs and their personnel. In contrast, the potential for civil liability for the activities of PMSCs and/or the actions of their personnel is minimal. Australian contract law may well apply extraterritorially in the sense that parties can enter into a binding contract, governed by Australian law, for services provided overseas, and subject any alleged breach of the contract to the jurisdiction of Australian courts. However, tortious liability in Australia does not extend extraterritorially in the absence of specific legislative provision to that effect. The authors have been unable to locate any examples of liability in tort in Australian legislation for the acts of Australian companies or individual Australian citizens conducted in foreign countries. There may well be legal causes of action pursuant to host-country law, but Australia does not have equivalent legislation to other common law countries—particularly the US and the UK. The US Alien Tort Statute grants federal district courts jurisdiction over any civil action brought by an alien for a tort committed in violation of the law of nations or a treaty of the US. The UK has legislated to give effect to obligations pursuant to the European Convention on Human Rights. In 2008, the UK Ministry of Defence conceded that British forces had violated Article 2 of the Convention by causing the death in custody of Baha Mousa, a young Iraqi national. In acknowledgement of that violation of rights enshrined in UK legislation, the Ministry of Defence agreed to pay monetary compensation to Mousa’s family following their instigation of civil litigation in UK courts.51 There is no similar legislative basis for tortious action against PMSCs in Australian law.

I X. R E LEVAN T C ASE LAW

There have been a handful of prosecutions under the Crimes (Foreign Incursions and Recruitment) Act 1978, leading to a total of eight convictions between 1981 and 1998.52 Most of these cases related to various acts preparatory to hostile activity—attending meetings, training and procuring weapons—with respect to the former Yugoslavia, the Comoros Islands, Papua New Guinea, Seychelles and Cameroon. There has been one successful prosecution for recruitment (in 1987). In this light, the invocation of the Act has been criticised as ‘infrequent’ and as overlooking some instances of mercenarism by Australian nationals.53 In relation to the activities of PMSCs, the lack of any need for litigation 51 For more details of this story, see R Prince and T Harding, ‘MoD to Pay Compensation for Death of Iraqi Prisoner Baha Mousa’, The Telegraph, 27 March 2008, available at www.telegraph.co.uk/news/uknews/1583030/MoD-to-pay-compensation-for-death-ofIraqi-prisoner-Baha-Mousa.html. 52 See Wing, above n 21, 40. 53 ibid, 33.

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probably has much to do with the limited range of support services contracted out to the private industry. No high public profile cases, such as that involving Blackwater security guards shooting Iraqi civilians,54 have occurred in Australia, primarily because of the heretofore cautious refusal of the ADF to contract out the use of lethal force in military operations overseas. Intriguingly, there has been one particularly notable litigation in Australia related to mercenarism, although the use of mercenaries in the case had no direct link to Australia.

A. The Sandline Affair Early in 1997, following more than a decade of unsuccessful attempts to suppress the Bougainville Revolutionary Army (BRA), a secessionist force on the island of Bougainville in Papua New Guinea (PNG), a desperate PNG government engaged the private military firm Sandline International to equip, train and assist the Papua New Guinea Defence Force (PNGDF) to conduct a special military operation to finally defeat the BRA. Many governments, particularly Australia, New Zealand and other regional governments, protested the resort to mercenarism as a military solution to the Bougainville conflict. The introduction of mercenaries into the South Pacific was considered a serious threat to regional stability and a dangerous precedent for other regional governments faced with domestic tensions.55 The Prime Minister of PNG, Sir Julius Chan, attempted to portray the engagement of Sandline as a strategy to develop the capabilities of the PNGDF and to force the BRA to negotiate an end to the Bougainville conflict. He argued that Sandline had only been engaged for training purposes and he strenuously refuted the applicability of the ‘mercenary’ tag to describe the contractual relationship.56 However, the actual terms of the contract between PNG and Sandline57 undermined the Prime Minister’s attempts to re-characterise the nature of Sandline’s proposed involvement in the conflict. The PNG government agreed to pay Sandline USD 36 million, and to negotiate a joint venture involving Sandline and the PNG government in relation to 54 See US v Slough, No 10-3006 (DC Cir, 22 April 2011). See also Chapter 16, section IV(B)(ii)(a) above. 55 For more details on the Sandline Affair, see T McCormack, ‘The “Sandline Affair”: Papua New Guinea Resorts to Mercenarism to End the Bougainville Conflict’ (1998) 1 Yearbook of International Humanitarian Law 292. 56 Statement by Sir Julius Chan reported in The Age, 19 March 1997. See also statement by Sandline reported in Sydney Morning Herald, 27 February 1997. 57 The text of the agreement, which has been in the public domain for some years, is available at: coombs.anu.edu.au/SpecialProj/PNG/htmls/Sandline.html.

Australia 523 the Panguna copper mine once the mine, closed because of the hostilities on the island, was back in operation.58 In return, Sandline undertook to provide extensive supplies of sophisticated weaponry and ammunition, and to ‘conduct offensive operations in conjunction with PNG defence forces’ in order to quell the BRA and to repossess the Panguna copper mine. Similarly, Port Moresby agreed to ‘issu[e] instructions to PNG defence forces personnel to cooperate fully with Sandline commanders and their nominated representatives’ and undertook ‘to ensure that full cooperation is provided from within its organisation and that of the PNG defence forces’. Responsibilities for initiating planning cooperation between PNG commanders and Sandline commanders were also undertaken by the government. Although Sandline professed to be available for hire only to recognised governments and to act in accordance with the Geneva Conventions, such claims failed to obscure the nature of the functions Sandline were willing to perform purely for pecuniary gain.59 The Sandline Agreement was derailed when the Chief of the PNGDF, Brigadier General Jerry Singirok, and other senior military officers refused to cooperate with Sandline staff and publicly condemned the contractual arrangement.60 Soldiers who had not received pay and adequate equipment for months were unwilling to work with Sandline staff following disclosure of the amounts of money to be paid to Sandline. The PNGDF made significant allegations of corruption against the government generally, and against Sir Julius Chan personally. These allegations were subsequently raised in the PNG parliament during debate on the motion for the Prime Minister to step down temporarily from office pending the outcome of a judicial inquiry. The Sandline contract was prematurely terminated as a consequence of widespread PNGDF opposition. PNGDF members went as far as to detain some Sandline employees in their barracks at the Sepik army training camp.61 General Singirok was dismissed by the government for ‘gross insubordination bordering on treason’,62 and his acting replacement was ordered to release all Sandline employees. The head of Sandline International and

58 Sir Julius Chan’s vision for Bougainville had included a plan for the PNG government to purchase CRA’s controlling share in the Panguna mine and to reopen and operate the mine once the military operation had successfully restored PNGDF control of Bougainville. 59 The Sandline Contract with the PNG government included this claim by Sandline. However, the terms of the contract itself indicated the intention of the parties for Sandline personnel to engage in operational and command activities, not merely in training in the use of particular weaponry. 60 Statement by Sir Julius Chan reported in The Age, 18 March 1997. 61 PNG Post-Courier, Niuswire, 19 March 1997. 62 Statement by Sir Julius Chan reported in The Age, 19 March 1997.

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of the PNG operation, Tim Spicer, was arrested on firearms charges,63 but charges against him were later dropped.64 Although the Australian government supported the right of the democratically elected government of PNG to dismiss Singirok, it continued to make wide-ranging criticisms of the contract entered into with Sandline.65 The sacking of General Singirok provoked a public revolt, with thousands of civilians engaged in rioting, looting and protest in the streets of Port Moresby. The PNG government, battered by criticism from outside the country as well as from the PNGDF and citizens within the country, announced that the cancellation of the contract with Sandline would be ‘considered’.66 On 18 March 1997, Sandline employees began to leave PNG.67 The PNG parliament voted to institute a formal judicial inquiry into the negotiations and procedures by which Sandline was hired and the way in which the arrangement was to be financed. The inquiry was headed by the Australian-born judge of the Papua New Guinean Supreme Court, Warwick Andrew. Sir Julius Chan agreed to stand down temporarily as Prime Minister during the inquiry. Sir Julius announced his resumption of the position of Prime Minister on 2 June 1997,68 claiming exoneration by the inquiry. However, elections were held later that month and, despite the Prime Minister’s best efforts to focus the campaign on local issues, the Sandline affair dominated the election. Sir Julius Chan not only lost government but ultimately lost the parliamentary seat he had held for 29 years.69

B. Sandline and the Australian Courts Pursuant to the terms of the contract between Sandline and PNG, any unresolved dispute between the parties was to be settled by arbitration applying the laws of England. Sandline initiated an independent arbitration, which was conducted in Cairns, in the Australian State of Queensland, in 1998. Counsel for PNG argued that the contract was illegal and unenforceable because it contravened the PNG Constitution. Counsel sought to

63

See Sydney Morning Herald, 1 April 1997. BBC Online, 19 January 1998. 65 See statements by the Australian Minister for Foreign Affairs and Trade, Mr Downer, reported in Sydney Morning Herald, 6 June 1997. 66 See Sydney Morning Herald, 20 March 1997. 67 See The Age, Melbourne, 18 March 1997. 68 See Sydney Morning Herald, 6 June 1997. 69 Asia-Pacific News Network, 2 July 1997. 64

Australia 525 rely on English legal authority in Ralli Bros v Cia Naviera Sota Y Aznar70 to the effect that, where performance of contractual obligations are illegal in the state in which performance occurs, the contract is unenforceable. The arbitral panel of Rt Hon Sir Edward Summers, Rt Hon Sir Michael Kerr and Sir Daryl Dawson rejected the argument of PNG. Instead, the members of the panel decided that the state of PNG could not seek to rely upon its own domestic illegality to avoid its contractual obligations. By entering into the contract as an independent sovereign nation state, PNG had, in view of the panel members, clearly intended the contract to be governed by international law (despite the contrary explicit intention that the law of England was the applicable legal regime for the resolution of any disagreement). On the basis of international law, PNG was bound by the contractual obligations it had committed itself to.71 As the arbitration had been conducted in the State of Queensland, PNG was granted leave, pursuant to the Commercial Arbitration Act 1990 (Qld), to appeal the decision to the Supreme Court of Queensland. Justice Ambrose decided that he had no jurisdiction in respect of an alleged error of foreign law. In his view, ‘error of law’ giving rise to a right of appeal pursuant to the Commercial Arbitration Act 1990 can only mean an error of Queensland federal state or Australian national law.72 Having exhausted its legal avenues of appeal, the government of PNG, under its new Prime Minister Bill Skate, negotiated a settlement with Sandline International by agreeing to pay the remaining USD 18 million plus interest.

C. Ramifications of the Sandline Affair The Sandline Affair was clearly a damaging national experience for Papua New Guinea. Quite apart from the financial cost of in excess of USD 40 million—a huge amount for a developing economy—the incident caused massive social upheaval in the country and seriously undermined respect for governmental authority in the PNG military. Ironically, however, the hiring of mercenaries ultimately cost Sir Julius Chan his political career and the government that replaced him was elected with a popular mandate to negotiate a peaceful settlement to the Bougainville crisis. Sandline was engaged to resolve the Bougainville dispute by military force and, instead, became the catalyst for a successful negotiation which has resulted in a lasting peaceful settlement to the long-running conflict. 70 [1920] 2 KB 287; also R v International Trustee for the Protection of Bondholders AG [1937] AC 500, 519 (Lord Wright). 71 Sandline International v Papua New Guinea (1998) 117 ILR 552. 72 Papua New Guinea v Sandline International (1998) 117 ILR 565.

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The Sandline Affair had profound ramifications around the South Pacific Region. Many smaller Pacific Island states, as well the larger and heavily regionally influential New Zealand and Australia, were genuinely shocked that Port Moresby was prepared to resort to mercenarism to overthrow the BRA. Sandline International was popularly perceived to be financially opportunistic and greedy at the expense of the best interests of economically undeveloped states. That popular perception, which evoked such social turmoil in Papua New Guinea, has produced a healthy scepticism in the region for private military companies driven solely by the motive of pecuniary gain. The ADF’s policy of never contracting out the use of lethal force on military operations is, in part, explicable as a reaction to the overwhelmingly negative publicity generated by the engagement of Sandline International. In addition, both Australia and New Zealand have been much more willing to commit personnel—military and police—to operations in the South Pacific since the destructive Sandline Affair. The success of the South Pacific Regional Forum’s multilateral Regional Assistance Mission to the Solomon Islands has been exemplary and certainly avoided any pressure on Honiara to contemplate the desirability of engaging private military companies to wage war on insurgent Malaitan forces.

X . CON C LUDIN G REMARK S

The Australian government claims a commitment to ensuring respect for, and effective implementation of, international humanitarian law and, consistent with that objective, is keen to promote accountability and ethical standards in the activities of PMSCs. Australia actively participated in the Montreux Process and, in late 2008, supported the adoption of the Montreux Document. Yet Australia currently lacks a specific regulatory framework for any criminal activities of PMSCs. This lack of a specific regime has been the subject of calls for rectification.73 It is possible that the process currently underway to develop an enforcement mechanism under the International Code of Conduct for Private Security Service Providers may provide a further incentive. Finally, it should be noted that no known data exist on the precise number of Australian civilians currently working for international corporations in direct military roles around the world, but the popular view is that there are more than the ADF would care to admit. The reality of large numbers of Australian civilians working for PMSCs is perhaps a more challenging issue for legal regulation than the activities of such companies providing services to Australian government agencies. 73

See, eg Thomson, above n 4, 49.

23 Jurisdictional Competence and Applicable Law with Regard to Private Military and Security Companies IEVA MILUNA*

I . I NTRODUC TION

T

HE OPERATION OF private military and security companies (PMSCs) in other state jurisdictions employing different country nationals entails a consideration as to which country’s prescriptive jurisdictional principles and substantive national criminal law provisions should apply in cases of their criminal conduct. The issue becomes even more complicated when PMSCs are recruited by international organisations. This contribution examines the prescriptive jurisdictional competence and applicable substantive criminal law with regard to criminal conduct by PMSCs and their employees. It takes the national reports on the regulatory context of operation of PMSCs produced within the PRIV-WAR research project as a basis for analysis. The author differentiates between the home (registering, sending, hiring) state and the host (also hiring) state jurisdiction as the main premise for discussion. The registration of a company in a state which is different to that of its employees does not affect the jurisdictional competence that is the prerogative of the registering state. Overall, this assessment is confined to the analysis of prescriptive jurisdictional principles applicable in cases of operation of private contractors and does not examine the issues of enforcement jurisdiction. This contribution is divided in six chapters. First, the author analyses the jurisdictional competence of home and host states over criminal

* The author thanks Dr Martins Paparinskis for his valuable comments during writing the report.

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conduct of PMSCs and their employees. This entails elaboration on the traditional jurisdictional bases, as well as on the principle of universality and the impact of aut dedere, aut judicare obligations with regard to prosecution of crimes of PMSCs and their personnel. Secondly, the author examines the extent to which courts martial are competent to extend their jurisdiction over private military and security contractors. Thirdly, the concept of criminal responsibility of legal persons is explored as to its implications of criminal conduct of private contractors. Fourthly, the author discusses the jurisdictional competence in cases when PMSCs are contracted by international organisations. Fifthly, the author examines prospects of resolving jurisdictional conflicts in cases of overlapping prescriptive jurisdictions and the role that double criminality rule plays in it. Finally, the author assesses the state practice of applicable substantive criminal law in cases of criminal conduct by PMSCs and their personnel.

I I . JUR ISDIC TION AL C OMP ETEN C E OF HOME AN D HOST STATES

This chapter examines the jurisdictional competence of home and host states over the criminal behaviour of PMSCs and their personnel. It discusses the state practice of prescribing traditional bases of territorial and extraterritorial criminal jurisdiction over PMSCs and their personnel. In addition, it assesses the significance the contractual relationship with a state, and the qualification of private contractors under national and international laws, play in stipulating jurisdiction over PMSCs and their personnel.

A. Territoriality The prescriptive jurisdiction of home states and host states over PMSCs and their employees is primarily territorial. Naturally, states’ national laws stipulate the territorial jurisdictional principle over criminal offences committed on their territory.1 However, the prescription of territorial jurisdiction over criminal conduct of private contractors may only be relevant with regard to the host state, where PMSCs in fact operate. As will be discussed further, the policy stipulated in the Status 1 See Chapter 6, section VIII above regarding the Baltic States; Chapter 9, section III.B(i) above regarding France; Chapter 11, section II.B above regarding Italy; Chapter 13, section V.C above regarding Spain; Chapter 16, section IV above regarding the US; Chapter 17, section II.B(iv)(b) above regarding Canada; Chapter 20, section VI above regarding the Russian Federation; Chapter 21 above regarding South Africa, section V; Chapter 22, section VII above regarding Australia.

Jurisdictional Competence and Applicable Law 531 of Forces Agreements (SOFAs) has an impact on the exercise of territorial jurisdiction of the host state. Next, the extension of territoriality principle, the floating jurisdictional principle, becomes applicable in cases when PMSCs are involved in criminal offences on their military bases or entities used by the governments.2 An explicit statement in the national criminal laws as to the extent they apply on state military bases abroad will be necessary. The US ‘special maritime and territorial jurisdiction’ prescribed by the federal law and the Central Intelligence Agency contractor David Passaro case, in which a detainee in Afghanistan was assaulted, resulting in conviction, serves as examples.3 Further, the territoriality principle applies in cases when PMSCs are in transit in another state territory on their way to or after commission of a criminal offence, provided that the respective state criminalises the particular conduct. The state practice reports refer to a number of these kind of cases. A large group of South Africans were arrested and accused in Zimbabwe as being mercenaries when they were on their way to Equatorial Guinea to overthrow the government.4 They were convicted of violating the firearms and security laws, and immigration and aviation laws of Zimbabwe.5 Further, eight nationals of South Africa were arrested and found guilty in Equatorial Guinea for an attempt to overthrow the government.6 Also, the UK national Sir Mark Thatcher was fined in South Africa for breaching the Regulation of Foreign Military Assistance, being connected with the same attempt to overthrow the government in the Equatorial Guinea.7 Malta enforced the principle of territoriality against Jean-Jacques Fuentès for illegal exporting of weapons to the Ivory Coast security forces in 2004.8 Thus, the prosecution on the basis of territoriality of an individual whilst in transit to another state may not entail conviction for preparation of the prospective offence that is to be committed abroad, but is confined to the particular offence committed in the respective state territory. At the same time, this practice contributes to bringing perpetrators to justice before they engage in a conduct that is criminalised in another state and has primarily been planned elsewhere. Furthermore, SOFAs and the qualification attributed to private contractors influence the jurisdictional competence over PMSCs. SOFAs establish the scopes of jurisdiction of both the territorial host state and the state of 2

Chapter 16 above regarding the US, section IV.B(i). ibid. Chapter 21, section III.C(i)(b) above regarding South Africa. 5 ibid. 6 ibid. 7 ibid. 8 The Regulatory Context of Private Military and Security Services in France, National Reports Series 11/09, Priv-war project, available at http://priv-war.eu/wordpress/ wp-content/uploads/2009/08/nr-11-09-fra.pdf (accessed on 2 April 2011) 32. 3 4

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the perpetrator’s nationality. Although it has been recognised that most SOFAs prescribe the right of the host state to exercise primary jurisdiction, two exceptions apply: the first concerns cases when the home state national commits a crime against another national of the home state; the second is when home state nationals commit crimes in performance of an official duty.9 SOFAs provide for the exercise of jurisdiction of the home state over the armed forces and private contractors to the extent that the latter are integrated in the armed forces or if the agreement specifically stipulates that. With regard to the national armed forces, states explicitly embody the active personality jurisdictional principle in their national criminal laws.10 However, if home state jurisdiction over private contractors is not established, they come under the territorial jurisdiction of the host state. The author will elaborate further on this on the basis of state practice reports describing the situation in the zones of armed conflict. In the case of Iraq, the immunity of contractors from the territorial jurisdiction of Iraq for the acts performed within the framework of agreement was prescribed by the Coalition Provisional Authority Order No 17.11 However, the instrument established the possibility of waiver of immunity in cases of unlawful conduct.12 Moreover, the immunity did not cover criminal acts performed outside the scope of the contract. The regulation under the Coalition Provisional Authority Order No 17 was in effect by the end of 2008.13 The Withdrawal Agreement between the US and Iraq no longer prescribes immunities for US contractors and contractor employees.14 Thus, they may be subject to the jurisdiction of Iraq on the basis of territoriality. This is expressly affirmed by the Withdrawal Agreement and implies enforcement jurisdiction by Iraq, as the Agreement does not permit the US to arrest or detain any contractor without the consent of Iraq.15 With regard to Afghanistan, the private military and security contractor operation takes place within the framework of the two missions: Operation Enduring Freedom, led by the US, and the International Security Assistance Force (ISAF), which is a NATO-led mission.16 9 M Frulli, ‘Immunity for Private Military Contractors: Legal Hurdles or Political Snags?’ in F Francioni and N Ronzitti (eds), War by Contract. Human Rights, Humanitarian Law, and Private Contractors (Oxford, Oxford University Press, 2011) 452. 10 Chapter 7, section VIII above regarding the Baltic States; Chapter 15, section II above regarding the UK; Chapter 17, section II.B(iv)(b) above regarding Canada; Chapter 20, section VI.B above regarding the Russian Federation; Chapter 22, section VII.A above regarding Australia. 11 Chapter 15, section III above regarding the UK; Chapter 16, section IV.A(i)(a) above regarding the US. 12 ibid. 13 Chapter 16, section IV.A(i)(a) above regarding the US. 14 ibid, section IV.A(i)(b). 15 ibid; TA Rush, ‘Don’t Call it a SOFA! An Overview of the US–Iraq Security Agreement’ (2009) Army Lawyer 34, 48–49. 16 Chapter 16, section IV.A(ii) above regarding the US.

Jurisdictional Competence and Applicable Law 533 In the former case, contractors deployed by the US are immune from the local jurisdiction under the status of forces agreement of 2002 so far they can be qualified as civilian or military personnel of the Department of Defense.17 However, it has been acknowledged that they qualify as contractor personnel over which Afghanistan can exercise territorial jurisdiction not excluding the exercise of jurisdiction by the US.18 In the latter case, the Military Technical Agreement between the ISAF and the Interim Administration of Afghanistan19 stipulates the prescriptive jurisdiction of the sending states.20 In 2010, following the decree of the Afghan President Hamid Karzai baning private security companies in Afghanistan, immunities have been lifted for private security contractors but kept for those employed by embassies, consulates, non-governmental organisations and economic organisations.21 Thus, the practice under SOFAs refers to the function of PMSCs being contractor personnel rather than civilian or military personnel. Consequently, the practice of Afghanistan shows that there is intent to subject PMSCs to the local territorial jurisdiction. It implies that their function of provision of military or security assistance qualifies them as contractor personnel and any criminal conduct arising from it shall be subject to adjudication by the territorial host state. According to the Canadian report, the Canadian Forces’ contracts with PMSCs indicate that contractors will be subject to the laws of Afghanistan.22 Thus, the jurisdictional competence depends on the state policy stipulated in SOFAs and the state practice in negotiating agreements with PMSCs operating in foreign territory. The character of the contractual relationship between states and companies, and the status of PMSCs under international humanitarian law predetermine the jurisdictional competence. This also encompasses a discussion of the exercise of jurisdiction by courts martial over civilians, which is further examined in Chapter 3. The status of PMSCs either accompanying or being integrated into the armed forces, or acting autonomously under contract with either the home state or the host state in fulfilling a particular task, may play a role in establishing jurisdiction. The first case comprises instances when PMSCs accompany the armed forces as civilians or are integrated in the military structure of armed forces acting under the operational command and control of the military commander, and qualify as civilians taking a direct part in hostilities or even combatants. In the second case, PMSCs act autonomously under agreement with a particular state and are qualified as civilians. This does 17

ibid. ibid. 19 Available at http://webarchive.nationalarchives.gov.uk/+/http://www.operations. mod.uk/isafmta.pdf (accessed on 2 April 2011). 20 Chapter 16, section IV.A(ii) above regarding the US. 21 ibid. 22 Chapter 17, section III.B(i) above regarding Canada. 18

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not exclude instances when they engage in combat activity exceeding the powers prescribed by the agreement. In cases where private military and security contractors qualify as civilians, they come under the territorial jurisdiction of the host state unless otherwise specified in an international agreement. Also, if PMSCs qualify as civilians accompanying the armed forces, they come under prescriptive territorial jurisdiction of the host state or under the home state jurisdiction on the basis of the active personality principle. This is without prejudice to the exercise of enforcement jurisdiction by the host state if the civilians are captured by the host state when engaged in hostilities. For instance, the Australian Defence Force Discipline Act 1982 recognises individuals (even if not of Australian nationality) accompanying the Australian Defence Forces as defence civilians.23 They must satisfy the requirements of accompanying the defence forces and consenting to subject themselves to military discipline.24 As they are not covered by the Australian Status of Forces Agreement, they are subject to the territorial jurisdiction of the host state.25 Thus, it depends on the national laws normatively qualifying private contractors and the policy stipulated in SOFAs as to whether territoriality or active personality shall govern the case. The nationals of the host state itself shall be subject to the territorial jurisdiction of the particular state. If private military and security contractors qualify as combatants and are integrated in the military structure of the armed forces, they are subject to their country of nationality criminal laws according to the active personality principle. A narrower interpretation of this is that they need to be in the army’s chain of command.26 Both cases lead to the prescriptive active personality jurisdictional principle. This is due to the fact of explicit stipulation of the active personality principle for the members of the national armed forces. So far as private contractors are integrated into the national armed forces, they are subject to the prescriptive jurisdiction attributed to the armed forces. Further, if PMSCs operate autonomously for the purpose of performance of specific tasks, their activity is subject to the territorial jurisdiction unless the agreement with either the home or the host state stipulates otherwise. Moreover, they may also come under the territorial jurisdiction of the host state if they act outside their contractual tasks, as their tasks may be set by the contract rather then by the militaries, who command the private contractors at the implementation stage.27 23

Chapter 22, section VII.A above regarding Australia. ibid. 25 ibid. 26 L Doswald-Beck, ‘Private Military Companies under International Humanitarian law’ in S Chesterman, C Lehnardt (eds), From Mercenaries to Market: the Rise and Regulation of Private Military Companies (Oxford, Oxford University Press, 2009) 120. 27 Chapter 16, section III.B(ii)(b) above regarding the US. 24

Jurisdictional Competence and Applicable Law 535 PMSCs are primarily subject to the host state jurisdiction on the basis of territoriality. It is the role of SOFAs to reflect the consensus with regard to jurisdictional competence over private contractors and the national policy of stipulating other prescriptive jurisdictional principles as the basis to bringing their criminal conduct to justice. The practice in the armed conflict zones in Iraq and Afghanistan is to waive the immunities previously stipulated for PMSCs so that the host state territorial jurisdiction can be prescribed and enforced. At the same time, insufficient legal capacity to prosecute criminal cases as well as the enforcement of the rule of law contribute to establishing immunities. For example, the practice of the Netherlands in its status agreements with the host state has been to include an immunity clause from local criminal law that is granted to all personnel, including PMSCs, for all activities in performance of their tasks.28 Also, the Australian SOFAs reserve criminal jurisdiction over military personnel to the Australian government, making the Australian Defence Force members immune from the host state jurisdiction.29 Moreover, the status of private contractors under international humanitarian law influences the jurisdictional competence due to the role attributed to the active personality jurisdictional principle normatively determined by the national laws with regard to the structures of armed forces. Thus, the extent to which the status of private contractors under national and international laws determines the jurisdictional competence will depend largely on the policy implemented in the SOFAs and national laws.

B. Active Personality The different country policies influence state prescription of extraterritorial jurisdictional principles over criminal offences committed outside their territories. Most national criminal laws establish the extraterritorial jurisdictional principle of active personality.30 With regard to PMSCs and 28

Chapter 12, section VI.D above regarding the Netherlands. Chapter 22, section VII.A above regarding Australia. 30 Chapter 6, section VIII above regarding the Baltic States; Chapter 9, section III.B(i) above regarding France; Chapter 10, section III.F(iii) above regarding Germany; Chapter 11, section II.C above regarding Italy; Chapter 12, section VI.B above regarding the Netherlands; Chapter 13, section V.C above regarding Spain; Chapter 14, section VIII.A regarding Sweden; Chapter 15, section II above regarding the UK; Chapter 16, section IV.B(iii) and IV.C above regarding the US; Chapter 17, section II.B(iv)(b) above regarding Canada; Chapter 19, section IX.C above regarding Israel; Chapter 20, section VI.B above regarding the Russian Federation; Chapter 21, section V above regarding South Africa; Chapter 22, section VII above regarding Australia; Private Military and Security Services in the Regulatory Context of Finland, National Reports Series 08/09, PRIV-WAR project, available at http://PRIV-WAR.eu/wordpress/wp-content/uploads/2009/05/nr-08-09-fin. pdf (accessed 2 April 2011) 14. 29

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their employees, this is exercised on the part of the state of nationality of the perpretator. Thus, the effectiveness of the implementation of criminal justice will largely depend on the prosecutorial initiative of the countries of the PMSC nationality. The state practice stipulates additional substantive and procedural elements for the effective enforcement of the active personality principle. Canadian criminal law expressly establishes a need for a link between the nationality principle and crimes of international concern such as international terrorism, crimes against internationally protected persons and UN personnel, and sexual offences.31 The Australian Crimes (Overseas) Act 1964 prescribes extraterritorial jurisdiction on the basis of the active nationality principle and may be suitable in cases when contractors are contracted by government agencies other than the Department of Defence.32 The Spanish Organic Law of Judicial Power permits the exercise of the prescriptive active personality jurisdiction in cases when an individual has acquired Spanish nationality after the commission of an offence.33 With regard to immunities prescribed by SOFAs for private contractors operating in a foreign state territory, PMSCs come under the home state prescriptive jurisdiction on the basis of the active personality principle. The early practice in Iraq shows that, according to Coalition Provisional Authority Order No 17 with regard to private contractors, immunity from the host state jurisdiction was first prescribed for the acts performed within the agreement. Thus, it was the role of the active personality principle to establish home state jurisdiction over the criminal conduct of private contractors. Also, within the framework of the US-led Operation Enduring Freedom, the criminal conduct of private contractors may lead to the exercise of criminal jurisdiction of the home state so far they are either civilian or military, or even contractor personnel of the Department of Defense. In the US, the differentiation in prescribing extraterritorial jurisdiction is made on the basis of the subjects involved and operating in the military field. Its advantage is that it prescibes jurisdiction not only over US nationals, but also over other state nationals employed by PMSCs. The Military Extraterritorial Jurisdictional Act applies to civilians and former military personnel, but not to the host state nationals acting overseas.34 As of 2004, the jurisdiction has been extended to cover companies and their employees contracted not only by the Department of Defense, but also other federal agencies to the extent they support the mission of the

31 32 33 34

Chapter Chapter Chapter Chapter

17, 22, 13, 16,

section section section section

II.B(iv)(b) above regarding Canada. VII.B above regarding Australia. V.C above regarding Spain. IV.B(ii) above regarding the US.

Jurisdictional Competence and Applicable Law 537 Department of Defense.35 This may exclude contracts entered into by the State Department, as was the case with the Nisoor Square incident in Iraq, where the contract with Blackwater was concluded by the State Department.36 However, the practice of the US courts demonstrates that implementation of the Military Extraterritorial Jurisdictional Act in cases of contracts concluded by the Department of State may be possible. The enforcement of the United States Military Extraterritorial Jurisdictional Act shows the success of the home state’s jurisdictional competence to bring perpetrators of crimes to justice. Possession of child pornography, downloading child pornography, engagement in abusive sexual contact, assaulting another contractor and shooting Afghan civilians have all resulted in convictions under the Military Extraterritorial Jurisdictional Act.37 Further, despite the fact that it was the State Department and not the Department of Defense that concluded the contract with Blackwater, five former Blackwater employees were indicted under the Military Extraterritorial Jurisdictional Act for killings of civilians.38 Their defence concerned the jurisdiction of the Military Extraterritorial Jurisdictional Act and they claimed that the federal court did not have jurisdiction as the conduct was related to provision of armed protection to civilian personnel of the State Department.39 The case received wide attention after the indictments were dismissed and the case was remanded back to the district court.40 In another case, two American contractors of Paravant LLC, a subsidiary of Xe (formerly Blackwater), were charged in the federal court under the Military Extraterritorial Jurisdictional Act with second-degree murder, attempted murder and firearms offences when working as contractors of the Department of Defense.41 The main advantage of the Military Extraterritorial Jurisdictional Act is that it criminalises the activities of not only US nationals, but also those of other states.42 Thus, the enforcement of criminal jurisdiction on the basis of the active personality principle with regard to contractors of the US is prospective under the Military Extraterritorial Jurisdictional Act. The state practice refers to the fact that in most cases the double criminality rule is applicable, unless an international agreement stipulates 35

ibid. ibid. ibid.; C Ryngaert, ‘Litigating Abuses Committed by Private Military Companies’ (2008) European Journal of International Law 19, 1044. 38 Chapter 16, section IV.B(ii) above regarding the US. 39 ibid. 40 ibid. 41 ‘Two Individuals Charged with Murder and Other Offenses Related to Shooting Death of Two Afghan Nationals in Kabul, Afghanistan’, The US Department of Justice, Office of Public Affairs (7 January 2010), available at http://www.justice.gov/opa/pr/2010/ January/10-crm-011.html (accessed 2 April 2011); Chapter 16, section IV.B(ii) above regarding the US. 42 Ryngaert, above n 37, 1043. 36 37

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otherwise.43 However, the specific cases normatively dedicated for the prosecution of private contractors performing certain tasks for the state or specific crimes of international concern imply that the double criminality rule is lifted. In addition, the prescription of the active personality jurisdictional principle for the members of the state’s armed forces influences the exercise of jurisdiction over private contractors, since, as elaborated above, they may qualify as civilians taking a direct part in hostilities or even combatants, thus being subject to the jurisdiction of their country of nationality. Their status will usually be determined by SOFAs; however, in cases of violating their tasks or if the immunities have been lifted, they will come under the territorial jurisdiction of the host state. Thus, it is the state policy of each country that determines the scope of the prescriptive jurisdictional principle of active personality as to its applicability to PMSCs.

C. Passive Personality Under the passive personality jurisdictional principle, the state of nationality of a victim can extend its jurisdictional competence over an offender. It has been questioned whether the nationality of the victim may create a sufficient jurisdictional link under international law.44 However, this jurisdictional principle has been considered as generally permissible45 and reasonable, at least for certain crimes.46 Many state national laws embody the passive personality jurisdictional principle.47 In the same way as with the active nationality principle, national criminal laws in cases of core crimes tend to refer to the nationality of the victim as a sufficient basis to exercise jurisdiction over the perpetrator. Being a highly controversial jurisdictional principle, it has been concluded that in some states it is applicable to all offences, while in others only to serious ones.48 For example, the US laws refer to the applicability of

43 Chapter 12, section VI.B above regarding the Netherlands; Chapter 13, section V.C above regarding Spain; and Chapter 14, section VIII.A above regarding Sweden. 44 C Ryngaert, Jurisdiction in International Law (Oxford, Oxford University Press, 2008) 92. 45 R O’Keefe, ‘Universal Jurisdiction. Clarifying the Basic Concept’ (2004) 2 Journal of International Criminal Justice 735, 739. 46 Ryngaert, above n 44, 94. 47 Chapter 6, section VIII above regarding the Baltic States; Chapter 10, section III.F(iii) above regarding Germany; Chapter 16, section IV.B(i) above regarding the US; Chapter 17, section II.B(iv)(b) above regarding Canada; Chapter 20, section VI.B above regarding the Russian Federation; Private Military and Security Services, above n 30, 15. 48 ‘Extraterritorial Criminal Jurisdiction’, Report of the Committee of Experts on Extraterritorial Jurisdiction (Council of Europe, 1990) 12.

Jurisdictional Competence and Applicable Law 539 this principle in cases of war crimes,49 and the Netherlands laws refer to grave and other breaches of Geneva Conventions, torture and genocide.50 The passive personality jurisdictional principle is prospectively applicable not only in cases when nationals of either home or host states are victims, but also when any third state national is a victim of private contractors. However, the home and host states will most likely apply the active personality and territoriality jurisdictional principles, respectively. Thus, the jurisdictional competence under the passive personality principle stays with the states not directly concerned with the operation of private contractors in the host states. The passive personality jurisdictional principle will only apply if any other state more closely connected with the particular criminal conduct does not exercise its criminal jurisdiction. Moreover, the state policy will determine the crimes to which the application of the passive personality principle should be confined.

D. Protective Principle The protective jurisdictional principle prescribes entitlement to exercise of jurisdiction for conduct whose effect is considered to be harmful to the national interests of the forum state. The Canadian Criminal Code, which requires a ‘real and substantive link’ to the jurisdiction of Canada, with the comment that it may concern harmful effects in Canada,51 refers to the protective jurisdictional principle. The Finnish criminal law requires the existence of a link in cases of crimes committed abroad and expressly stipulates the protective principle.52 The German53 and Swedish54 criminal laws also embody the protective jurisdictional principle. However, it is prescribed for certain specific offences.55 Although violations of international humanitarian law and human rights law by PMSCs are in principle harmful to the legal interests of the forum state, they are not deemed sufficient to warrant the exercise of jurisdictional competence on the basis of the protective principle. With regard to the sovereignty of the other state or its right to political independence,56 the criminal conduct of private contractors does not as such jeopardise it, though the principle could be applicable in cases 49 A Fisher, ‘Accountability to Whom?’ in S Chesterman and A Fisher (eds) Private Security, Public Order. The Outsourcing of Public Services and Its Limits (Oxford, Oxford University Press, 2009) 49. 50 Chapter 12, section VI.B above regarding the Netherlands. 51 Chapter 17, section II.B(iv)(b) above regarding Canada. 52 Private Military and Security Services, above n 30, 14–15. 53 Chapter 10, section III.F(iii) above regarding Germany. 54 Chapter 14, section VIII.A above regarding Sweden. 55 O’Keefe, above n 45, 739. 56 Ryngaert, above n 44, 96.

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of certain specific crimes, like treason and high treason. Thus, other jurisdictional principles, such as territoriality and active or passive personality, are better equipped to address the criminal conduct of PMSCs.

E. Universality In cases of criminal offences committed extraterritorially by PMSCs and their employees, the universality jurisdictional principle is the most appropriate avenue for bringing contractors to justice where no other state exercises jurisdiction. Under the prescriptive universality principle, a state is entitled to jurisdictional competence over an individual who is not a national thereof and has no connection with that state. The scope of the universality principle depends either on a treaty or a customary international law basis. Despite the fact that national laws only contribute to the international law basis for asserting the universal jurisdiction over particular crimes, the prescriptive universal jurisdiction principle is embodied in the criminal laws of the Netherlands,57 Canada,58 Spain,59 the Baltic States,60 Finland,61 Australia,62 the Russian Federation,63 Germany,64 South Africa,65 the Czech Republic66 and Israel.67 The laws of the Baltic States, the Russian Federation and Israel expressly state that these shall be international agreements which shall determine the scope of universal jurisdiction.68 In other cases, the ratifications of the respective conventions implying universal jurisdiction with regard to particular crimes will reflect state consent to the scope of universal jurisdiction. Crimes over which states nationally prescribe universal jurisdiction are war crimes, crimes against humanity, genocide, torture, grave breaches of Geneva Conventions, particular crimes against the state, breach of responsibility by military commanders and civilian superiors, terrorism, piracy, counterfeiting, drug trafficking, money laundering, hijacking of an aircraft, ship or fixed platform on a continental shelf, hostage taking, unlawful handling of nuclear or radioactive materials, drug crimes and crimes 57

Chapter 12, section VI.B above regarding the Netherlands. Chapter 17, section II.B(iv)(b) above regarding Canada. Chapter 13, section V.C above regarding Spain. 60 Chapter 6, section VIII above regarding the Baltic States. 61 Private Military and Security Services, above n 30, 15. 62 Chapter 22, section VII above regarding Australia. 63 Chapter 20, section VI.B above regarding the Russian Federation. 64 Chapter 10, section III.F(iii) above regarding Germany. 65 Chapter 21, section V.B(ii) above regarding South Africa. 66 Chapter 8, section VIII.B above regarding Czech Republic. 67 Chapter 19, section IX.C above regarding Israel. 68 Chapter 6, section VIII above regarding the Baltic States; Chapter 19, section IX.C above regarding Israel; Chapter 20, section VI.B above regarding the Russian Federation. 58 59

Jurisdictional Competence and Applicable Law 541 against the environment.69 The prescriptive criminalisation of these crimes under the concept of university has been established either by national laws or with reference to their prohibition in international law. Further, the exercise of universal jurisdiction depends on the scope of the universality principle applicable to a particular crime in international law. This does not mean that all these are international crimes. For example, the Canadian Crimes Against Humanity and War Crimes Act specifically differentiates crimes of international concern from international crimes.70 Further, Spanish, Latvian, Finnish, Lithuanian, Russian Federation and Israeli laws expressly stipulate that the status of a particular international crime shall be determined by international law.71 However, the South African International Criminal Court Act prescribes the enforcement jurisdiction with regard to genocide, crimes against humanity and war crimes beyond the borders of South Africa in specific circumstances.72 This is done on the basis of national law and does not consider the rule of international law permitting enforcement jurisdiction over international crimes. Regarding international crimes, some national laws establish the procedural requirement of territoriality, active personality or passive personality, or even the protective jurisdictional principle component.73 These preconditions permit states to better enforce the universality principle; however, they demand a link with the state exercising jurisdiction. Thus, crimes of international concern or international crimes committed by PMSCs come under the prescriptive universal jurisdiction of any state irrespective of the perpetrator’s nationality and the place of commission of crime. However, the jurisdictional competence over private contractors is restricted to the limited category of crimes

69 Chapter 12, section VI.B above regarding the Netherlands; Chapter 16, section IV.B(iii) above regarding the US; Chapter 17, section II.B(iv)(b) above regarding Canada; Chapter 13, section V.C above regarding Spain; Chapter 21, section V.B above regarding South Africa; Private Military and Security Services, above n 30, 15. 70 The Regulation of Canadian Private Military and Security Companies Operating Abroad, National Reports Series 03/09, Priv-war project, available at http://priv-war.eu/ wordpress/wp-content/uploads/2009/05/nr-03-09-can.pdf (accessed on 2 April 2011) 14. 71 Chapter 13, section V.C above regarding Spain; Chapter 19, section IX.C above regarding Israel; Chapter 20, section VI.B above regarding the Russian Federation; The Regulatory Context of Private Military and Security Services in Latvia, National Reports Series 07/09, PRIV-WAR project, available at http://PRIV-WAR.eu/wordpress/ wp-content/uploads/2009/05/nr-07-09-lv.pdf (accessed 2 April 2011) 28; Private Military and Security Services, above n 30, 15; The Regulatory Context of Private Military and Security Services in Lithuania, National Reports Series 12/09, PRIV-WAR project, available at http://PRIV-WAR.eu/wordpress/wp-content/uploads/2009/05/nr-12-09-lit. pdf (accessed 2 April 2011) 27. 72 Chapter 21, section V.B(ii) above regarding South Africa. 73 Chapter 12, section VI.B above regarding the Netherlands; Chapter 17, section II.B(iv)(b) above regarding Canada; Chapter 20, section VI.B above regarding the Russian Federation.

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enjoying universal jurisdiction under international law and the national law basis prescribing that.

I I I. MILITARY JUSTIC E

The possibility of PMSC contractors being tried at military courts depends on their status and operation, both in wartime and peacetime. Under the laws of Canada, UK and the US, private military and security contractors may in principle come under military jurisdiction. However, the practice does not explicitly confirm that. The American system implies concerns over efficiency and suitability of civilian courts exercising criminal jurisdiction over private contractors.74 The German parliament explicitly denied an opportunity to try private military and security contractors at military courts due to the fact that they do not have combatant status.75 The Canadian Code of Service Discipline prescribes military court jurisdiction for persons accompanying the Canadian Forces and is not limited to nationals of Canada.76 However, the practice of Canada trying civilians at military courts does not refer to trying civilian contractors at military courts.77 Individuals who have been tried have been former military personnel and dependants accompanying the Canadian Forces.78 The Army Act of 1955 of the UK stipulated that civilians accompanying the armed forces could be tried at military courts.79 However, the judgment of the European Court of Human Rights in the case of Martin v United Kingdom stated that there must be compelling reasons justifying trying civilians at military courts.80 The new Armed Forces Act of 2006 lists the categories of persons who shall come under military jurisdiction, implying that private contractors may be among them.81 The American Uniform Code of Military Justice prescribes military court jurisdiction not only over military personnel, but also over civilians.82 In the case of Reid v Covert,83 the US Supreme Court established that the application of military court jurisdiction over civilians 74

Chapter 16, section IV.C(i) above regarding the US. Regulation of Private Military, Security and Surveillance Services in Germany, National Reports Series 16/09, Priv-war project, available at http://priv-war.eu/wordpress/ wp-content/uploads/2009/06/nr-15-09-ger.pdf (accessed on 2 April 2011) 13. 76 Chapter 17, section III.B(iii) above regarding Canada. 77 ibid. 78 ibid. 79 The Regulatory Context of Private Military and Security Services in the UK, National Reports Series 01/09, Priv-war project, available at http://priv-war.eu/wordpress/ wp-content/uploads/2009/08/nr-01-09-uk.pdf (accessed on 2 April 2011) 43. 80 Martin v UK App no 40426/98 (ECtHR, 24 October 2006) 81 The Regulatory Context of Private Military and Security Services, above n 79. 82 Chapter 16, section IV.C(ii) above regarding the US. 83 Reid v Covert [1957] 354 US 1. 75

Jurisdictional Competence and Applicable Law 543 in peacetime may not be permissible due to the necessity of ensuring fair trial guarantees.84 Referring to this precedent in the case of Solorio v United States (1987), the Supreme Court ruled that the Uniform Code of Military Justice jurisdiction was limited to individuals possessing an official military status.85 However, it has been acknowledged that these kinds of cases are different from those involving civilian military contractors.86 The fact that private military and security contractors may perform tasks of military character and may be integrated in the armed forces is decisive. For example, in the case of abuse by the US military in the Abu Ghraib prison in Iraq in 2004, the companies Titan and CACI provided interpreters and interrogators to the US commanding officer at the prison.87 Though no criminal charges were brought against them, it was discovered in the civil case that Titan linguists had been fully integrated into the military units under direct command and exclusive operational control of military personnel, whereas CACI interrogators were subject to a dual chain of command of both military and CACI supervisors.88 In another case, the US military ordered a court martial for Alaa ‘Alex’ Mohammad Ali, a private company employee holding Iraqi and Canadian citizenship, working as an army interpreter in Iraq and who was accused of stabbing another company employee four times in an army base in Iraq.89 Thus, the status and functions assigned to private contractors are of relevance to bringing them before courts martial. The distinction between crimes committed during wartime and during peacetime is of relevance. The Uniform Code of Military Justice jurisdiction has been extended to cover civilians who accompany the armed forces in the field and participate in contingency operations that do not take place in wartime.90 It applies to both US and foreign nationals.91 This has been accompanied by enforcement jurisdictional elements stipulated in the regulations, and prosecutions have followed.92 The requirement of accompanying the military personnel may refer to a limited number of contracts excluding the ones concluded by the State Department.93 Moreover, a close link with military operations may be necessary.94 Thus, 84

Chapter 16, section IV.C(i) above regarding the US. ibid. ibid. 87 S Chesterman, ‘Intelligence Services’ in Chesterman and Fisher, above n 49, 192. 88 ibid 193. 89 Chapter 16, section IV.C(ii) above regarding the US; Chapter 17 above regarding Canada, section II.A(iii); A Fisher, ‘Accountability to whom?’ in Chesterman and Fisher, ibid, 50. 90 Chapter 16, section IV.C(ii) above regarding the US. 91 Ryngaert, above n 37, 1043. 92 Chapter 16, section IV.C(ii) above regarding the US. 93 ibid, section IV.B(ii). 94 ibid, section IV.C(ii). 85 86

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for the exercise of military justice over private military and security contractors, it is necessary that they are integrated in the military structure either as civilians or combatants during peacetime and wartime so as to enforce military justice. It will apply not only to US nationals, but also to any state national.

I V. C R I MI NAL R ESP ON SIBILITY OF LEGAL P ERSON S

The jurisdictional principles discussed above apply in principle to PMSCs as corporate entities engaged in criminal conduct. However, the concept of criminal responsibility of legal persons brings in issues of proving actus reus and mens rea. The author is of the view that the concepts of individual criminal responsibility and the criminal responsibility of legal persons operate autonomously alongside each other, and do not have mutually excluding normative effects. The Australian,95 Canadian,96 Dutch,97 Baltic States’,98 French,99 Portuguese100 and US101 criminal laws establish criminal responsibility of legal persons. The Latvian criminal law takes the somewhat hybrid approach of introducing a concept of coercive measures applicable to legal persons, prescribing that coercive measures may be applied to a legal person, if the criminal offence has been committed in the interests of a legal person by a natural person.102 The Colombian,103 Russian Federation104 and Spanish105 criminal laws do not recognise criminal responsibility of legal persons. The prescription of jurisdiction by national laws over legal persons implies that a state can exercise its territorial jurisdiction, as well as extraterritorial jurisdiction of active and passive personality. However, the prescriptive jurisdictional competence over a PMSC will differ from that over its contractors, who may have a different nationality to where the company is registered. The incorporation theory has been criticised due to the fact that links between the

95

Chapter 22, section VII.B above regarding Australia. Chapter 17, section II.B(iv)(a) above regarding Canada. 97 Chapter 12, section VI.E above regarding the Netherlands. 98 Chapter 6, section VIII above regarding the Baltic States. 99 Chapter 9, section III.B(i) above regarding France. 100 The Regulation of Private Security Companies in Portugal, National Reports Series 09/09, PRIV-WAR project, available at http://PRIV-WAR.eu/wordpress/wp-content/ uploads/2009/05/nr-09-09-pt.pdf (accessed 2 April 2011) 7. 101 The American Way: Private Military Contractors & US Law After 9/11, National Reports Series 02/08, Priv-war project, available at http://priv-war.eu/wordpress/ wp-content/uploads/2009/05/nr-02-08-usa.pdf (accessed on 2 April 2011) 24. 102 Chapter 6, section VIII above regarding the Baltic States. 103 Chapter 18, section II.B(ii)(c) above regarding Colombia. 104 Chapter 20, section VI.D above regarding the Russian Federation. 105 Chapter 13, section V.C above regarding Spain. 96

Jurisdictional Competence and Applicable Law 545 corporation and the registering state are extremely weak.106 However, for the prescription of criminal jurisdiction, that does not change the jurisdictional competence of the registering state. It has been recognised that the international law criteria that determine the nationality of a company may not be appropriate when establishing extraterritorial criminal jurisdiction.107 Thus, the nationality of a corporation does not have a normative influence on the exercise of criminal jurisdiction by the registering state. With regard to the universality principle, it is doubtful whether it applies to the criminal responsibility of legal persons. The statutes of international criminal tribunals do not stipulate criminal responsibility of legal persons. The issue has been discussed by the International Criminal Court’s Preparatory Committee; however, the idea of inclusion of criminal responsibility of legal persons was dismissed due to the differences in national laws and the complementarity principle on which the competence of the International Criminal Court is built.108 It has been acknowledged that, when the instruments implementing the principle of universal jurisdiction were drafted, nobody had in mind that it may be applicable to legal persons.109 Concerning substantive law, for example, the Finnish law prescribes criminal responsibility of legal persons only for economic and environmental offences.110 It has been acknowledged that relevance of corporate responsibility of private contractors remains distant as the Finnish legal system does not recognise criminal responsibility of legal persons for crimes of genocide, war crimes and crimes against humanity.111 Thus, there is no basis from which to conclude that state practice, even if stipulating criminal responsibility of legal persons, refers to the possible prescription of universal jurisdiction and the responsibility of legal persons for international crimes. In proving actus reus of a corporate entity, the state practice reports reveal the possible kinds of relationship between employee conduct and the act of a legal person. In principle, a series of unlawful conduct of natural persons contributes to establishing the criminal responsibility of legal persons. This is confirmed by the normative stipulations in the laws of the US,112 the Netherlands113 and France.114 Moreover, in the US, when unlawful acts appear to be part of the contemplated employment, 106

O de Schutter, ‘The Responsibility of States’ in Chesterman and Fisher, above n 49, 40. ‘Extraterritorial Criminal Jurisdiction’, above n 48, 28. 108 C Lehnardt, ‘Individual Liability of Private Military Personnel under International Criminal Law’ (2008) 19 European Journal of International Law 1033. 109 de Schutter, above n 106, 42. 110 Private Military and Security Services, above n 30, 16. 111 ibid. 112 The American Way: Private Military Contractors & US Law After 9/11, above n 101, 24. 113 Chapter 12 above regarding the Netherlands, section VI.E. 114 Chapter 9 above regarding France, section III.B(i). 107

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the corporate entity may face criminal liability even though there is no direct nexus with the underlying crimes at issue.115 Concerning mens rea, the US laws recognise that a corporate entity may display gross negligence or recklessness that might lead to criminal conduct.116 The Canadian law also recognises that a corporation may be found guilty of negligence causing death or harm.117 Procedurally, this can be proved by establishing that the directing mind had been a party to the offence and that the directing mind has departed from the standard of care that could be reasonably expected to prevent the offence.118 Thus, despite the fact that the attribution of unlawful conduct of natural persons to establish criminal responsibility of legal persons is clear, it is premature to speak about the characteristics of the actual implementation of the corporate responsibility principle in practice.

V. JUR I S D IC TION IN C ASES OF P RIVATE MI L I TARY AND SEC URITY C OMPAN IES EMP LOY ED B Y I NT E R N ATION AL ORGAN ISATION S

The fact that PMSCs are directly employed by international organisations brings in the question which state shall exercise its jurisdictional competence over the unlawful conduct of private contractors. The issue depends on whether the agreement is concluded directly between an international organisation and the private contractor or between the Member State of an international organisation and the PMSC. The author is of the view that, for the purposes of criminal responsibility, it is irrelevant whether PMSCs are contracted either by a state or by an international organisation. Also, for the purposes of the implementation of criminal responsibility, the attribution of conduct to either a state or an international organisation does not play any role. The practice of international organisations in outsourcing defence or security tasks has taken place in peacekeeping missions. With regard to UN missions, PMSCs were employed in the Mission in Cote d’Ivoire, United Nations Organization Mission in the Democratic Republic of the Congo, the UN Mission in Sierra Leone and the UN Mission in Kosovo.119 The UN has contracted private contractors directly (for site protection, monitoring and intelligence collection), as well as through states (Liberia).120 In 2005, during the UN Mission in Liberia, certain 115

The American Way: Private Military Contractors & US Law After 9/11, above n 101,

24.

116 117 118 119 120

ibid. Chapter 17, section II.B(iv)(a) above regarding Canada. ibid. C Lehnardt, ‘Peacekeeping’ in Chesterman and Fisher, above n 49, 208. ibid, 207–8.

Jurisdictional Competence and Applicable Law 547 tasks of Liberia’s armed forces were outsourced to a private company, DynCorp.121 It has been argued that PMSCs will be used by the UN and EU more in the future.122 The status of PMSCs in a contractual relationship with the organisation and the possible applicability of immunities are critical in determining jurisdictional competence. As peacekeeping forces are made up of state contingents and the UN does not consider PMSCs as ‘experts on mission’, and thus are not tasked with the functions that are part of the UN mandate, they may not come under the command of the UN.123 Thus, the functions of PMSCs predetermine that they shall be under the jurisdictional control of the Member States forming the peacekeeping forces and implementing the mandate. Moreover, it has been submitted that private contractors belong to the troops contributed by a Member State by the SOFA, the Status of Mission Agreement or other agreement (Memorandum of Understanding) between the UN and the host state or troop-contributing state.124 This leads to the conclusion that PMSCs come under the jurisdictional control of the organising Member States. For the purposes of enforcement of criminal responsibility, though, this has no normative impact. The practice shows that it is the states, and not international organisations, which conclude agreements with private contractors. For example, the Economic Community for West African States Monitoring Group in Sierra Leone has employed the US-based private contractor Pacific Architect Engineers, hired by the US.125 The African Union has also hired The Pacific Architect Engineers and DynCorp through the US State Department.126 Even more commonly, pre-existing agreements between private contractors and state governments may be used for the purposes of fulfilment of tasks of international organisations. It is the role of international agreements to stipulate the status of forces, which will then be implemented by the Member States of the organisation. The NATO Status of Forces Agreement prescribes a primary and a secondary right to exercise jurisdiction, where the primary right is entrusted to the sending state and the secondary right to the receiving state.127 The EU Status of Forces Agreement defining the legal position of 121

ibid. ND White and S MacLeod, ‘EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility’ (2008) 19 European Journal of International Law 966. 123 Lehnardt, above n 119, 210–12. 124 ibid, 212; White and MacLeod, above n 122, 972. 125 Lehnardt, above n 119, 207. 126 ibid. 127 S Fournier, ‘NATO Military Interventions Abroad: How ROE are Adopted and Jurisdictional Rights Negotiated’, International Congress ‘Criminal Law between War and Peace: Justice and Cooperation in Criminal Matters in International Military Interventions’, Toledo, Spain, September 2007, 6. 122

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military and civilian personnel deployed by EU Member States is based on the NATO Status of Forces Agreement.128 Thus, the author concludes that this is the state practice referred to above which is normatively reflected in the SOFAs of NATO and EU, as the decisions of contracting out defence or security tasks are implemented by states. Moreover, with regard to NATO, the Status of Forces Agreement stipulating the relationship between the NATO and Afghanistan does not differentiate the jurisdictional question of contractors from that of the regular military; rather, it uses the terminology ‘United States military and civilian personnel’.129 Thus, the prescriptive jurisdictional competence of states over private contractors remains in place. The active personality principle stipulated in the respective country’s national laws will apply to PMSCs and their personnel. Alongside with the competing jurisdictional principle of territoriality, the practice of international organisations SOFAs may imply that the active personality jurisdictional principle shall prevail.

V. R E S OL UT I ON OF JURISDIC TION AL C ON FLIC TS AND T H E ROLE OF DOUBLE C RIMIN ALITY

In cases of criminal conduct of PMSCs, several states may have a prescriptive jurisdictional competence to try private contractors. There are no priorities in international law in terms of jurisdictional principles.130 The recently adopted Council of the European Union Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings131 is to be considered as a technical instrument stipulating the procedure of exchange of information on the parallel proceedings being conducted in another Member State. Comity as a discretionary principle of jurisdictional restraint which takes into account another state’s policy choices and interests without being a legal obligation132 will not be discussed here. The main jurisdictional principles, which may overlap in the assertion of jurisdiction over criminal conduct of PMSCs and their personnel are the territoriality and active personality principles. From the perspective of enforcement, the application of objective territoriality jurisdiction, where the crime has been perpetrated, will require that a significant adverse effect has occurred in the 128 A Sari, ‘The European Union Status of Forces Agreement (EU SOFA)’ (2008) 13 Journal of Conflict and Security Law 353, 353. 129 Chapter 16, section IV.A(ii) above regarding the US. 130 Ryngaert, above n 44, 129. 131 Council Framework Decision 2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings [2009] OJ L328 132 Ryngaert, above n 44, 136–37.

Jurisdictional Competence and Applicable Law 549 asserting state’s territory.133 In that case, the territoriality will prevail. Writers refer to paramountcy of territoriality.134 In cases where an offence has been committed in several state territories, the doctrine of ubiquity determines that the criminal jurisdiction of the country where the part of the offence has been committed or the consequences or effects of the offence become manifest shall apply.135 From another angle, with regard to the elements of crime, some authors consider that assertion of criminal jurisdiction over extraterritorial conduct by aliens on the basis of the effects doctrine when the constituent element of the crime does not take place in the prescribing state is controversial, if not objectionable.136 The doctrines of ubiquity and effects are not of the same scope.137 The practices in Iraq and Afghanistan show that the specific function of PMSCs operating in the armed conflict zones abroad will lead to the assertion of territorial jurisdiction, as their activity in the state practice has been seen as not amounting to granting immunities under international agreements. In these cases, the constituent elements of crime will occur in the respective state territories. In these instances, the territoriality principle will prevail over the principle of active personality. This will also apply when immunities of private contractors have been normatively lifted in cases of acts exceeding their functions. Further, the role of the active personality principle in prescribing jurisdiction over private contractors will cover qualifications of crimes which may have been prepared in the home state jurisdictions. As stated above, this jurisdictional principle is of significance for bringing perpetrators to justice, as in certain cases it refers to specific crimes and is normatively implied for the assertion of jurisdiction over private contractors. Moreover, in these cases double criminality may not be applicable. Also, in cases regulated by SOFAs specifically prescribing home state jurisdiction, the double criminality rule is omitted by implication. It has also been acknowledged that active personality jurisdiction might be legitimate if the conduct is not criminalised in the territorial state.138 Otherwise, state practice refers to the fact that in most cases the double criminality rule will be applicable, unless an international agreement stipulates otherwise.139 Even in cases of no SOFAs regulating jurisdictional competence, 133 CL Blakesley, ‘Extraterritorial Jurisdiction’ in MC Bassiouni (ed), International Criminal Law, Vol. II. Procedure (New York, Transnational Publishers, 1999) 5. 134 Ryngaert, above n 44, 128. 135 ‘Extraterritorial Criminal Jurisdiction’, above n 48, 8–9. 136 O’Keefe, above n 45, 739. 137 ‘Extraterritorial Criminal Jurisdiction’, above n 48, 25. 138 Ryngaert, above n 44, 89. 139 Chapter 13, section V.C above regarding Spain; Chapter 12, section VI.B above regarding the Netherlands; The Regulation of Private Military and Security Services in Sweden, National Reports Series 02/10, Priv-war project, available at http://priv-war.eu/ wordpress/wp-content/uploads/2010/12/nr-02-10-SWE.pdf (accessed on 2 April 2011) 15.

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neither the principle of territoriality nor that of active personality may be effective without sufficient prosecutorial will to bring perpetrators of crimes to justice. US private contractors have remained unpunished for the crimes committed in Colombia. Though, on the basis of territoriality, Colombia initiated proceedings in the case of a US private contractor who raped a 12-year-old girl in 2007 and US private contractors who recorded a pornographic movie with minors in 2004, the cases still remain unanswered in Colombia as well as in the US.140 Also, DynCorp employees involved in heroin trafficking in 2001 enjoyed total impunity.141 The territoriality and active personality jurisdiction will also prevail over a state exercising passive personality jurisdiction. Although the active personality and passive personality jurisdictional principles refer to protection of similar interests being linked to crimes of international concern, the role of the active personality principle in bringing perpetrators to justice trumps the passive personality due to the normative address of private contractors with regard to the exercise of jurisdiction over their criminal conduct. According to the rule of reasonableness, which it is desirable to apply in cases of jurisdictional conflicts, according to which assertion of jurisdiction may not be exorbitant and unreasonable,142 the active personality jurisdiction may better address the criminal conduct engaged in by its nationals and private contractors, normatively placed under the home state jurisdiction. The double criminality rule that is required in cases of passive personality143 may play a lesser role for bringing perpetrators to justice, as crimes of international concern will be criminalised under both state jurisdictions. The jurisdictional principles of territoriality and active and passive personality may also prevail over the assertion of jurisdiction on the basis of the protective principle. Prescribing jurisdiction on the basis of territoriality and active and passive personality will better address the aspects of a particular crime being perpetrated in the respective state territory, by its nationals or against its nationals, than the exercise of the protective principle, mostly in cases of treason and high treason. This principle may play a role in cases where states may be reluctant to assert jurisdiction, though the principal role here will be played by the state of nationality of the perpetrators. The protective principle does not require double criminality.144 In certain cases, the exercise of jurisdiction 140

Chapter 18 above regarding Colombia, section II.B(ii). ibid. 142 Ryngaert, above n 44, 133; CL Blakesley, ‘Extraterritorial Jurisdiction’ in M Cherif Bassiouni (ed) International Criminal Law, Vol. II: Procedure (New York, Transnational Publishers, 1999) 6 143 Ryngaert, ibid, 95; CfGR Watson, ‘The Passive Personality Principle’ (1993) 28 Texas International Law Journal 1, 16 144 ‘Extraterritorial Criminal Jurisdiction’, above n 48, 13. 141

Jurisdictional Competence and Applicable Law 551 on the basis of the protective principle may follow prosecutions of other crimes, provided that ne bis in idem is observed. The characteristic of the universality principle is that it is applicable in cases when no other state exercises jurisdiction, thus the competing jurisdictional competence between it and others is not possible. The double criminality rule does not apply in cases of prescribing the universal jurisdictional principle. Further, if a state is unwilling or unable to prosecute the core crimes stipulated in the Rome Statute of the International Criminal Court145 according to Article 17, the case may even come before the International Criminal Court, provided that the respective state is a party to the Statute. In addition, it cannot be precluded that in cases of core crimes a state party to the Rome Statute makes a selfreferral in accordance with Article 14 of the Statute. In cases of grave breaches of the Geneva Conventions, in principle all states parties to the Conventions can assert to exercise the universal jurisdiction stipulated therein.146 O’Keefe concludes that states have accepted in their practice that grave breaches mandate universal jurisdiction.147 It has been stressed by the Montreux Document that in cases of grave breaches of the Geneva Conventions states have a responsibility to bring the perpetrators to justice or, if that is prescribed in their laws, to hand them over for trial to another state or an international tribunal.148

V I . AP P L I C ABLE LAW WITH REGARD TO P R I VAT E M ILITARY AN D SEC URITY C OMPANI E S AN D THEIR P ERSON N EL

The exercise of prescriptive jurisdictional competence over the criminal conduct of PMSCs and their personnel leads to the applicability of substantive criminal laws of the respective country. This chapter addresses the distinctions in state practice as to criminalising unlawful conduct which may be prospectively engaged in by PMSCs. It specifically examines the criminalisation of mercenary activity, and the concept of superior responsibility. Most states criminalise international crimes and crimes of international concern. They envisage criminal responsibility for core crimes (crimes

145

Rome Statute of the International Criminal Court, 17 July 1998, UNTS, vol 2187, 3. R O’Keefe, ‘The Grave Breaches Regime and Universal Jurisdiction’ (2009) 7 Journal of International Criminal Justice 811, 821. 147 ibid, 814. 148 Article A.5 of ‘Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies during Armed Conflict’, available at http://www.icrc.org/eng/assets/files/ other/icrc_002_0996.pdf (accessed 2 April 2011). 146

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against humanity, war crimes, genocide, aggression),149 causing gross injuries,150 torture,151 illegal arms trafficking,152 crimes against the state (treason and high treason),153 crimes against public order and security,154 and offences in military service.155 The Portugese criminal laws provide specifically for the crime of the illicit provision of private security activities.156 The kinds of crimes which may trigger charges against PMSCs and their employees are generally addressed in states’ criminal laws, and their prosecution will depend on the respective state’s national law characteristics. The conduct of PMSCs differs significantly from mercenary activity, as private contractors can be home state nationals and they are not recruited solely for combat activity. State practice shows that there are two groups of states which either support or reject criminalising mercenary activity that in certain cases may be applicable to private contractors. Canada,157 the Czech Republic,158 Colombia,159 Finland,160 France,161 Germany,162 the Baltic States,163 Spain164 and Sweden165 are not parties to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. The Brazilian,166 Dutch,167 Finnish,168 Baltic States’169 and Spanish170 laws do not criminalise mercenarism. However, Australian,171 149 Chapter 6, section VIII above regarding the Baltic States; Chapter 12, section VI.B above regarding the Netherlands; Chapter 13, section V.C above regarding Spain; Chapter 20, section VI.B above regarding the Russian Federation; Chapter 21, section V.B(ii) above regarding South Africa. 150 Chapter 8, section VIII.B above regarding Czech Republic. 151 ibid; Private Military and Security Services, above n 30, 15. 152 Chapter 6, section VIII above regarding the Baltic States; Chapter 20, section VI.B above regarding the Russian Federation. 153 Chapter 13, section V.B above regarding Spain; The Regulatory Context of Private Military and Security Services in Brazil, National Reports Series 17/09, PRIV-WAR project, available at http://PRIV-WAR.eu/wordpress/wp-content/uploads/2009/07/nr-17-09-bra. pdf (accessed 2 April 2011) 8; Private Military and Security Services, above n 30, 17–18. 154 Chapter 20, section VI.B above regarding the Russian Federation; Private Military and Security Services, ibid, 18. 155 Chapter 20, section VI.B above regarding the Russian Federation. 156 The Regulation of Private Security Companies in Portugal, above n 100, 7. 157 Chapter 17, section I above regarding Canada. 158 Chapter 8, section VIII.A above regarding Czech Republic. 159 Chapter 18, section III above regarding Colombia. 160 Private Military and Security Services, above n 30, 17. 161 Chapter 9, section III.C above regarding France. 162 Chapter 10, section III.F(i) above regarding Germany. 163 Chapter 6, section VIII above regarding the Baltic States. 164 Chapter 13, section V.B above regarding Spain. 165 Chapter 14, section VIII.C above regarding Sweden. 166 The Regulatory Context of Private Military and Security Services in Brazil, above n 153, 8. 167 Chapter 12, section VI.A above regarding the Netherlands. 168 Private Military and Security Services, above n 30, 17–18. 169 Chapter 6, section VIII above regarding the Baltic States. 170 Chapter 13, section V.B above regarding Spain. 171 Chapter 22, section VI above regarding Australia.

Jurisdictional Competence and Applicable Law 553 Belgium,172 French,173 Italian,174 Portuguese175 and South African176 laws do criminalise mercenary activity. The French law contains the same elements for mercenarism as the First Additional Protocol to the Geneva Conventions: a mercenary shall not be a member of the French armed forces, must be recruited to fight in an armed conflict, must in fact have taken a direct part in hostilities and must have been motivated by remuneration.177 States refer to the fact that it is hard to satisfy all the criteria cumulatively.178 Thus, normatively, though certain elements of being a mercenary may be established in private contractor activity, not criminalising mercenary activity does not have an impact on the criminal conduct of PMSCs. Rather, states refer to the prohibition of joining the foreign armed forces,179 which usually results in suspension of citizenship. As private military and security company employees act under the cover of a corporate entity, the criminalisation of superior responsibility is of relevance for further prosecutions. Many states (the Netherlands,180 Canada,181 the Czech Republic,182 Lithuania,183 Estonia,184 Finland185) criminalise superior responsibility; however, due to a lack of consistent state practice, conclusions about the effectiveness of prosecution under this concept may be premature. The superior responsibility concept applies to both civilian and military leaders. If private contractors are integrated in the military structure of the armed forces and act under operational command and control of the military commander, the situation may incur consideration of superior responsibility in the case of unlawful conduct of the commander. There has been an attempt to convict a Dutch national on the basis of the Act on Martial law, who allegedly allowed security guards of his timber companies in Liberia to participate in hostilities as members of the armed forces of Charles Taylor. However, no sufficient evidence was found and the case ended in a full 172

Chapter 7, section I above regarding Belgium. Chapter 9, section III.C above regarding France. 174 Chapter 11, section II.A above regarding Italy. 175 The Regulation of Private Security Companies in Portugal, above n 100, 6. 176 Chapter 21, section V.B(i) above regarding South Africa. 177 Chapter 9, section III.C above regarding France. 178 ibid. 179 Chapter 10, section V.B above regarding Germany; Chapter 8, section VIII.A above regarding Czech Republic. 180 Chapter 12, section VI.C above regarding the Netherlands. 181 Chapter 17, section II.B(iv)(b) above regarding Canada. 182 Chapter 8, section VIII.C above regarding Czech Republic. 183 The Regulatory Context of Private Military and Security Services in Lithuania, National Reports Series 12/09, Priv-war project, available at http://priv-war.eu/ wordpress/wp-content/uploads/2009/05/nr-12-09-lit.pdf (accessed on 2 April 2011) 28. 184 The Regulatory Context of Private Military and Security Services in Estonia, National Report Series 15/09, Priv-war project, available at http://priv-war.eu/wordpress/ wp-content/uploads/2009/06/nr-15-09-est.pdf (accessed on 2 April 2011) 38. 185 Private Military and Security Services, above n 30, 16–17. 173

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acquittal.186 The Dutch government considers it unlikely that a military commander of the armed forces could be responsible for violations of laws of war by the conduct of PMSCs, although the factual question may be an exercise of effective control by the military commander.187 Thus, an explicit consideration of PMSC activity in the light of superior responsibility of actual military and civilian commanders may build on the strengths of this concept in bringing the perpetrators to justice.

V II. C ON C LUSION

The principle of territoriality plays the major role in prescribing criminal jurisdiction over PMSCs. However, it will only be effective if applied by the host state where the private contractors in fact operate. The role of SOFAs is to affirm the extent to which either territoriality or active personality apply to PMSCs. The practices in Iraq and Afghanistan show that immunities of private contractors have been lifted and they may come before the local courts on the basis of territoriality. The author concludes that it is nonetheless the policy and the function of PMSCs being contractor personnel, rather than civilian or military personnel over which jurisdiction of active personality could be extended in the host state, which is seen as not amounting to granting immunities. Even before the immunities were lifted, they did not apply in cases of unlawful conduct of private contractors. The normative qualification of private contractors in their contractual relationship with a state and under international humanitarian law influences the jurisdictional competence. PMSCs as ‘contractor employees’ or ‘contractor personnel’ are explicitly subject to the territorial jurisdiction of Iraq and Afghanistan. Furthermore, the qualification of private contractors under international humanitarian law as civilians, civilians accompanying the armed forces or combatants influences the jurisdictional competence. Without a specific agreement, private contractors being civilians shall come under the prescriptive territorial jurisdiction of the host state. However, if they are integrated in the armed forces, they shall be subject to the home state jurisdiction in accordance with the active personality principle. If they are not integrated in the armed forces but act autonomously for the fulfilment of particular tasks, they will be subject to the territorial jurisdiction unless otherwise specified in an international agreement. The host state nationals on their part will come under the territorial jurisdiction of the particular state. The active personality jurisdictional principle is the second principal 186 187

Chapter 12, section VI.C above regarding the Netherlands. ibid.

Jurisdictional Competence and Applicable Law 555 avenue for bringing private military and security contractors to justice. State practice establishes additional substantive and procedural elements for the effective enforcement of the active personality principle. Thus, it is the role of the state policy to normatively stipulate its position with regard to prosecution of crimes committed extraterritorially by their nationals or, more specifically, PMSCs. This may imply that the double criminality rule in these cases is lifted. The practice of the US with regard to the active personality jurisdictional principle, taking as its basis the subjects involved in the performance of military and security tasks, contributes to the enforcement of criminal justice. The Military Extraterritorial Jurisdictional Act prescribing jurisdiction over companies which support the mission of the Department of Defense serves as a solid basis for further prosecutions. Moreover, it does not only address the jurisdictional competence over PMSCs, but envisages that all state nationals, not only those of the US, are brought to justice. The passive personality jurisdictional principle is in most cases confined to specific crimes and is of lesser importance for bringing perpetrators to justice, as it may be rare that victims of a state nationality other than the territorial host state appear in the zone of conflict or post-conflict situation where private contractors operate. The protective principle has a limited applicability with regard to crimes of private military and security contractors as it applies to specific kinds of crimes which endanger state sovereignty and political independence. The universality principle shall determine the prescriptive jurisdictional competence over PMSCs when no other state has a sufficient link to establish jurisdiction. The prospective exercise of universal jurisdiction is limited to the particular serious crimes which enjoy universal jurisdictional under international law. The practice of trying civilian contractors at military courts has been unequivocal as they do not enjoy the status of combatants and there is a lack of human rights guarantees. However, the jurisdictional competence of courts martial may not be excluded. Due to the functions attributed to private contractors, their status may change from civilians to military personnel, which may lead to the jurisdiction of courts martial. Moreover, the normative prescription in the US Uniform Code of Military Justice that jurisdiction can be extended to civilians accompanying the armed forces in peacetime is of relevance in concluding that private contractors may in principle come before courts martial. This comprises having jurisdiction over both nationals of the US and foreign state nationals. Many state national laws acknowledge the concept of criminal responsibility of legal persons and imply that traditional jurisdictional principles will apply to corporate entities. However, there is some doubt that the corporate criminal responsibility concept can find support in prescribing universal jurisdiction over the criminal conduct of legal

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persons. Moreover, the state practice does not show the intent to apply the criminal responsibility of legal persons in cases of international crimes. Rather, the state practice makes a certain normative distinction not only between individual and corporate criminal responsibility, but also on the basis of private contractors’ affiliation with a state and their status under national laws, which in many instances covers not only the respective state nationals but also foreign state nationals operating under the corporate body. The author concludes that, for the purposes of enforcement of criminal responsibility, it is irrelevant whether a state or an international organisation contracts PMSCs. Also, it does not matter whether the conduct of a private contractor is attributed either to a state or to an international organisation. The only issue that may be decisive is the prescription of immunities for the conduct of a private contractor in cases when an international organisation is contracting PMSCs directly. However, the practice shows that private contractors do not come under the command of an international organisation and, even if it contracts them directly, the actual implementation of the agreement is placed under the jurisdictional control of its Member States. Still, that does not normatively influence the exercise of criminal jurisdiction by home, host or third states. The practice of SOFAs of NATO and the EU refer to the primacy of home state jurisdiction leaving behind the host state territorial jurisdiction. However, it will be the state practice which will determine the prevailing jurisdictional competence of a particular state. As stated above, the cases of Iraq and Afghanistan refer to the primacy of the host state territorial jurisdiction over criminal conduct of private contractors. In resolving the jurisdictional conflicts in cases of overlapping jurisdictions, the author concludes that territoriality will prevail over active personality. The main advantage of active personality is that in some countries it has been specifically linked with the assertion of jurisdiction over particular crimes and has placed private contractors as specific subjects over which jurisdiction can be enforced. Moreover, these cases may entail the assertion of jurisdiction over different country nationals. In cases of other jurisdictional principles, the territoriality and active personality will prevail over passive personality and protective principles as, due to the normative implications by the national laws in addressing private contractors being subject to either host or home state jurisdictions, these laws may address the criminal conduct in a much more precise manner, although the prescription of another jurisdictional basis is possible, taking into account the characteristics of the particular crime. The universality principle will play a role in cases when no other state asserts its jurisdictional competence, but is limited to the most serious crimes. With regard to the criminal responsibility of legal persons, state practice shows that criminal responsibility of corporate entities focuses

Jurisdictional Competence and Applicable Law 557 on financial and environmental crimes rather than on international crimes. The criminalisation by states of the core crimes of genocide, crimes against humanity, war crimes and aggression, as well as other crimes such as causing gross injuries, unlawful deprivation of liberty, torture, illegal arms trafficking and crimes against public order and security, which may be engaged in by private contractors, are generally addressed by national laws. There is no consensus among the states as to criminalisation of mercenary activity, which, although is not a suitable concept for bringing private contractors to justice, in certain cases may still cover the main elements of the particular offence. States criminalise superior responsibility, which is applicable to both civilian and military leaders; however, there is no practice to draw any conclusions as to the efficiency of implementation of this concept.

24 Military Criminal Justice and Jurisdiction over Civilians: The First Lessons from Strasbourg *

STEFANO MANACORDA AND TRIESTINO MARINIELLO

I . I NTRODUC TION

S

INCE THE END of the cold war, states and non-state actors have consistently increased their use of private military and security companies (PMSCs) in conflict and post-conflict situations.1 Relying on the high level of expertise of PMSCs, their personnel have been employed to perform a huge number of tasks,2 including operational assistance to members of armed forces on the battlefield.3 In the aftermath of the privatisation of security and military services, states have lost their traditional role as the only guarantors of citizens’ security.4 From a criminal law perspective, the presence of PSMC employees in war scenarios poses several problems in ascertaining the individual criminal responsibility for crimes they may commit abroad, and in particular the question of competent jurisdiction and the consequent procedural and substantive rules to be applied. The difficulties in prosecuting PSMC personnel are demonstrated, for instance, by the so-called Nissor Square incident that occurred in Iraq in 2007, when 17 people were killed and 24 others were injured: a US Federal Court dismissed all charges over private company employees accused of voluntary manslaughter and 1 See, inter alia, C Holmqvist, Private Security Companies: the Case for Regulation (Stockholm, SIPRI, 2005). See also A Alexandra, DP Baker and M Caparini (eds), Private Military and Security Companies: Ethics, Policies and Civil-Military Relations (New York, Routledge, 2008). 2 JR Heaton, ‘Civilians at War: Re-examining the Status of Civilians Accompanying the Armed Forces’ (2005) 57 Air Force Law Review 155, 190. 3 UB Steinhoff, ‘What are Mercenaries?’ in Alexandra et al, above n 1, 19. 4 See Holmqvist, above n 1, 1.

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weapons violations.5 Similarly, no civilian contractor involved in the Abu Ghraib scandal of 2004 has been held responsible for abuses of prisoners, whereas some members of the armed forces have been sentenced.6 The involvement of civilian contractors in military operations makes it necessary to address the issue of the form of criminal jurisdiction to which they are subject in the case of crimes committed outside national borders. Ever more frequently, home states rely on specific bilateral agreements to provide PMSC employees with immunity from the jurisdiction of the host state in which they are deployed.7 This policy prevents states on whose territory PMSC personnel have committed crimes from exercising criminal jurisdiction. Great powers, such as the US and the UK, have decided to face this challenge by opting for an expansion of the competence of military courts to civilian contractors.8 Although the matter of PMSC employees has not been debated in depth by international human rights bodies, it is encompassed within the wider issue of civilians brought before military courts. In this regard, human rights concerns have been raised over the application of military jurisdiction to ‘civilians’, as demonstrated by several decisions issued by the United Nations Human Rights Committee (UNHRC), the InterAmerican Court for Human Rights and the European Court of Human Rights (the ECtHR). Indeed, the UNHRC has pointed out that allowing martial courts to prosecute civilians raises concerns in relation to the equitable, impartial and independent administration of justice,9 hence the scope of military jurisdiction should be confined to crimes committed by members of armed forces in the course of their duties.10 Among human rights supervisory bodies, the Inter-American Commission and Court of Human Rights has expressed one of the most critical approaches to the exercise of military jurisdiction over civilians.11 The reason for this lies in the fact that during the era of military 5

See United States v Paul A Slough et al, Criminal Action No 08-0360 (RMU). See DL Snyder, ‘Civilian Military Contractors on Trial: the Case for Upholding the Amended Exceptional Jurisdiction Clause of the Uniform Code of Military Justice’ (2008) 44 Texas International Law Journal 65, 11. 7 See M Frulli, ‘Immunity versus Accountability for Private Military and Security Companies and Their Employees: Legal Hurdles or Political Snags?’ in F Francioni and R Ronzitti (eds), War by Contract: Human Rights, Humanitarian Law and Private Contractors (Oxford, Oxford University Press, 2010) 1. 8 For the US, see chapter 16 above; for the UK, see chapter 15 above. 9 See the Human Rights Committee, Administration of Justice, General Comment No 13 (UN Doc HRI/GEN/1/REV.1 (1984)). 10 See CCPR/C/79/Add 23, para 9. See also UNHRC, General Comment No 32 (2007), para 22. 11 See, inter alia, KM Chenut, ‘Les tribunaux militaires et juridictions d’exception dans le système interaméricain des droits de l’homme’ in E Lambert Abdelgawad (ed), Jurisdictions militaires et tribunaux d’exception en mutation: perspectives comparées et internationales (Paris, AUF, 2007), 553; see also C Lascano, ‘Inter-American Court of Human Rights and Penal Military Justice’ in S Manacorda and A Nieto (eds) Criminal Law between War and Peace (Ediciones de la Universidad Castilla—La Mancha, 2009) 273. 6

Military Criminal Justice and Jurisdiction over Civilians 561 dictatorships in several American countries the military justice system was widely abused.12 In the aftermath of these misdeeds, the Inter-American Court stated that civilians must not fall within the scope of military jurisdiction.13 The exercise of military jurisdiction over civilians would indeed constitute a violation of the individual’s right to be prosecuted by a competent, independent and impartial tribunal previously established by law.14 This paper aims to explore in greater detail the approach of the ECtHR to military criminal justice. In particular, it examines the compatibility of military jurisdictions with the Convention system of protection. In light of the Strasbourg case law, concerns arise in relation to the procedural guarantees enshrined in Articles 5 and 6 of the European Convention on Human Rights (ECHR) regarding liberty and security of persons, as well as the right to a fair trial. Indeed, the critical evaluation of military courts provided by Strasbourg judges is mainly based on the lack of independence and impartiality of both military courts and special courts when they are composed of civilian and military judges. With regard to the specific topic of civilians, the ECtHR has clearly expressed that ‘the power of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation’.15 These issues will be investigated, starting with a brief comparative overview of the different patterns followed by Member States of the Council of Europe (CoE), ranging over and combining in different ways an expansionist to an abolitionist approach to military jurisdiction. Thus, without intending to be exhaustive, the present paper will provide a general assessment of the question of the competence that many of the countries of the CoE enjoy over civilians employed abroad.

I I . G E NE R AL T R EN DS IN MILITARY C RIMIN AL JUS T I C E , B E T W E E N ABOLITION AN D EX PAN SION : A R E L E VANT I SSUE FOR C ON TRAC TORS?

Member States of the CoE do not show a uniform development of military justice. In particular,16 three different trends emerge from a brief comparative analysis of domestic military jurisdictions. However, it should be observed that the results of this comparative assessment do 12 See P Steiner, R Alston and HJ Goodman, International Human Rights in Context: Law, Politics, Morals (Oxford, Oxford University Press, 2008), 432. 13 With regard to the Inter-American Court, see, inter alia, Durand and Ugarte v Peru [2000] IACHR (16 August 2000), para 117. 14 Castillo Petruzzi and others v Peru [1999] IACHR (30 May 1999), para 128. 15 See Ergin v Turkey [2006] ECtHR no 47533/99 (4 March 2006), para 47. 16 It is important to underscore that this research will mainly rely on papers and State Reports drafted by other scholars.

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not appear to be particularly relevant for the issue of civilian contractors. While the majority of states have moved towards the abolition of military jurisdiction in peacetime, other countries have proceeded to a restriction of the competence of military courts. A third category includes those states which have opted for an expansion of military jurisdiction. With regard to the first group, it is important to point out that several countries have reformed military justice by suppressing military jurisdiction in peacetime, as testified by the cases of Germany, Austria, Norway and Sweden after the end of the Second World War.17 In Germany, despite the fact that the Basic Law for the Federal Republic of Germany (Grundgesetz, GG) allows for the institution of military courts,18 these tribunals have never been established, given the misdeeds for which they were responsible during the Nazi era.19 Likewise, in the last 30 years, Denmark, Slovenia, Estonia, the Netherlands, the Czech Republic and Belgium have also opted for the abolition of military jurisdiction in peacetime.20 In particular, in Belgium the legislature has reformed Article 157(1) of the Constitution limiting the exercise of military jurisdiction to wartime.21 France is currently assessing the opportunity of completely abolishing military jurisdiction in peacetime. It is important to note that in this country, in order to simplify the military justice system, the competence of military courts over crimes committed on French territory has been transferred to a special chamber of ordinary jurisdiction.22 In view of the process of simplification of military justice, in 1999 France decided to transfer the power to exercise jurisdiction over all crimes committed by members of the armed forces abroad in peacetime to a single military court (the Tribunaux aux armées de Paris). Nevertheless, the legislative reform—which is underway at the time of writing—envisions, inter alia, the overall suppression of the Tribunax aux armées, whose compe-

17 International Commission of Jurists, F Audreu-Guzmán, ‘Military Jurisdiction and International Law: Military Courts and Gross Human Rights Violations Vol 1’ (Geneva, 2004) 158. 18 Indeed, according to Art 92(2) of the Constitution: ‘The Federation may establish federal military criminal courts for the Armed Forces. These courts may exercise criminal jurisdiction only during a state of defence or over members of the Armed Forces serving abroad or on board warships. Details shall be regulated by a federal law. These courts shall be under the aegis of the Federal Minister of Justice. Their full-time judges shall be persons qualified to hold judicial office.’ 19 G Werle, ‘Crisis Management Operations and the German Justice System’ in S Manacorda (ed), European Common Defense and Judicial Area (Consiglio della Magistratura Militare, 2005) 34. 20 International Commission of Jurists, above n 17, 159. 21 HD Bosly and T Moreau, ‘Les Tribunaux militarires en Belgique’ in Lambert Abdelgawad, above n 11, 34. 22 The Law was issued on 21 July 1982. See also C Saas, ‘Led tribunaux militaires en France’ in Lambert Abdelgawad, above n 11, 317.

Military Criminal Justice and Jurisdiction over Civilians 563 tences will be shifted to a special chamber forming part of the ordinary jurisdiction. The second group concerns those countries that have decided to restrict the scope of military jurisdiction only to members of armed forces, a reform which is necessary to achieve democracy. This process has already been underway for a long time in some countries. For instance, Greece has removed civilians from military jurisdiction.23 In Spain, the democratisation process has led to a restriction of the competences of military jurisdiction, the highest organ of which is constituted by the Supreme Court, which is part of ordinary criminal jurisdiction.24 During the Franco dictatorship, pursuant to the Code of Military Justice issued on 17 June 1945, military tribunals enjoyed a broad competence over all crimes committed by members of armed forces or in military places, and over acts of terrorism and crimes against public order committed by civilians. The Constitution, issued in 1978 on the basis of the principle of jurisdictional unity, recognises in Article 117 the role of military courts as a part of ordinary judiciary power. Therefore, in peacetime the competence of military jurisdiction is confined ‘to the strictly military sphere in relation to offences which are classified as military in the Military Criminal Code’.25 In Italy, military tribunals could exercise their jurisdiction over members of armed forces and all persons subject to military criminal law.26 However, a judgment of the Constitutional Court declared that the part of this provision which encompassed individuals who were not actually members of the armed forces was inconsistent with the Constitution (Article 103).27 In the wake of this judgment, the jurisdiction rationae personae of military courts has been restricted to the military. In other countries, such an aim has been pursued only more recently. In Turkey, the laws no 4963 of 30 July 2003 and no 5530 of 29 June 2006 state that civilians can be tried by military tribunals only in wartime. It is to be stressed that in this country the restrictive path also involved the suppression in 2004 of a special tribunal, the National Security Court— composed of civilian and military judges—because of its inconsistency with the standards of independence and impartiality enshrined in Article 6 of the ECHR.28 23

See Art 96.4 of the Greek Constitution. L Jimena Quesada, ‘Les Tribunaux militaires et Juridictions d’exception en Espagne’ in Lambert Abdelgawad, above n 11, 234. 25 See also Art 12 of Basic Law 4/1987. It is to be observed that the requirement of ‘strictly military sphere’ has been restrictively interpreted by the Constitutional Court. See, inter alia, Ruling No 75/1982, 13 December 1982. 26 See Art 263 of the Military Criminal Code in Peace Time. 27 Judgment No 429 of 10 November 1992. 28 In particular, see Öcalan v Turkey [2005] ECtHR no 46221/99 (12 May 2005). For the deepening of the influence of the ECtHR on the Turkish justice system, see S Tellenbach, 24

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A third group of countries are moving in the opposite direction, towards an extension of military justice, as Ireland and the UK demonstrate. Indeed, Ireland recognises the establishment of military and special courts with a very extended competence, even over crimes committed by civilians (see below).29 In this regard, the Irish Constitution states that military courts may be established ‘for the trial of offences against military law alleged to have been committed by persons while subject to military law and also to deal with a state of war or armed rebellion’.30 It is important to note that the justice system in question still allows for Special Criminal Courts. These Courts, founded by the Offences Against the State Act, represent extraordinary tribunals which can be established any time that the government deems it necessary. Although they cannot be technically defined as military courts, they might be composed only of military judges.31 In the British military justice system, military courts are mainly ad hoc in nature, given that they are convened each time their judgment is required.32 These courts have broad-ranging jurisdiction not only over members of the armed forces but, since 1955, over civilians accompanying the armed forces overseas. In 1976, the Armed Forces Act established the Standing Civilian Court as part of the military jurisdiction, with competence over civilians working abroad for armed forces or employed by the Ministry of Defence, to deal with minor offences. In 2006, a new Armed Forces Act extended the list of persons working overseas for armed forces who can be subject to military jurisdiction.33

I I I . AN E MERGIN G MATTER IN DOMESTIC L E G AL S YSTEMS: THE EX TEN SION OF MI L I TARY JURISDIC TION OV ER ‘C IV ILIAN S’

The fact that civilian contractors are employed in military missions abroad raises sensitive questions about the competence of military courts. Without attempting to be exhaustive, the present research confines itself to revealing how military justice systems in some CoE Member States— though following different trends in reforming their military justice systems—still recognise cases in which civilians may be prosecuted by military tribunals. ‘Les Tribunaux militaires et Juridiction d’exception en Turquie’ in Lambert Abdelgawad, above n 11, 438. 29 J Gilbert and C Olivier, ‘Les Tribunaux militaires et Juridictions d’exception en République d’Irlande’ in Lambert Abdelgawad, above n 11, 382. 30 See Art 38(4) of the Irish Constitution. 31 Gilbert and Olivier, above n 29, 387. 32 International Commission of Jurists, above n 17, 346. 33 See chapter 15 above.

Military Criminal Justice and Jurisdiction over Civilians 565 This application of military jurisdiction to private individuals may be found in countries which still retain an extensive competence of their martial courts, as well as in legal systems which are moving towards a restriction or the abolition of the scope of application of military jurisdiction, even though such a situation appears rarer. For instance, among the states which have suppressed military jurisdiction in peacetime, Belgium has confined the application of military jurisdiction over civilians only to wartime and only when ordinary jurisdictions are exhausted or after an état de siège has been proclaimed.34 As will become apparent later in this chapter, military jurisdiction applies to civilians both in peacetime and in wartime, in two specific situations: when crimes are committed jointly by civilians and members of armed forces, and when they are committed abroad by civilians only. With regard to the extension of military jurisdiction over civilians in peacetime, the cases of Ireland, Spain, France and the UK are of particular interest. The Irish Constitution states that, in peacetime, military courts may cover crimes against military law ‘committed by persons while subject to military law’.35 It should be noted that this latter requirement includes a category of individuals which is broader than that of members of armed forces, and therefore allows martial courts to try civilians under certain conditions. The applicability of military jurisdiction over civilians in peacetime does not exist solely in those countries which still conserve a huge competence of martial courts. Spain, for example, defines the competence of military courts on the basis of the crime committed. Since military courts may exercise their jurisdiction over every crime or breach of discipline defined in the Military Criminal Code, civilians end up being subject to military jurisdiction if they are responsible for crimes defined by the military criminal code.36 This could be the case when a private individual is responsible for the commission of offences against the administration of military justice.37 Apart from the specificities of every domestic system, as stated above, there are two situations in which civilians can be brought before military criminal courts. First, in peacetime some military justice systems extend service jurisdiction to civilians who take part in the joint commission of a crime as co-perpetrators or accomplices. This is the case in France, where the Special Chamber is competent for crimes committed on French territory.38 Similarly, in Turkey, despite the ban on civilians facing trials before martial courts, when civilians are accomplices of servicemen in 34 35 36 37 38

See See See See See

Art 66 Law 10 April 2003. Art 38(4) of the Irish Constitution. Art 12(1) of the Basic Law 4/1987. Arts 180 and 182–88 of the Code of Military Criminal Law. Art 697-1, para 2 of the Code of Criminal Procedure.

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the commission of a crime set forth in the Military Criminal Code, both can fall within the jurisdiction of military tribunals. Russia, too, allows military courts to try civilians in cases regarding the joint commission of crimes with servicemen. However, if private individuals submit an objection, the case, if possible, will be separated, allowing the civilians to be tried by ordinary justice.39 The second case to be considered is the extension of military jurisdiction over civilians accompanying soldiers for crimes committed abroad. Among the different criteria that allow national justice systems to establish an extraterritorial application of domestic jurisdiction for crimes committed overseas, the active personality principle in particular is used to allow domestic courts to try members of armed forces allegedly responsible for offences committed abroad.40 In some military justice systems, this expansion involves civilians accompanying soldiers during military operations. For example, in the UK, the jurisdiction rationae personae of military courts covers civilians working overseas for armed forces. The Standing Civilian Court, which forms part of the military justice system, may try civilians working overseas for the armed forces in relation to minor crimes. As already outlined, the new Defence Act of 2006 has increased the categories of private individuals accompanying armed forces abroad who can consequently be subject to military jurisdiction.41 In Spain, on the basis of the Organic Law no 4 issued on 14 July 1987, military judges are competent over civilians who accompany armed forces during military operations. This competence includes strictly military offences, as well as ordinary crimes which do not constitute serious violations of human rights or international crimes. Similarly, in relation to military missions, Turkish martial courts exercise competence over military forces and civilians employed by the Ministry of Defence and Armed Forces.42 In France, the circumstances in which military courts may prosecute civilians for crimes committed abroad coincide with those stated for wartime. Therefore, in both situations, according to the Military Justice Code, ‘members of armed forces and persons who follow them on the basis of authorization’ may be subject to military jurisdiction.43 In other words, private individuals fall within the competence of military jurisdiction when they are employed by the armed forces, including members 39

See Art 31 al7 Code Criminal Procedure. See S Manacorda, ‘Modelli di integrazione penale europea nelle missioni all’estero: analisi e prospettive’ in S Manacorda (ed), Difesa comune europea e spazio giudiziario penale (Consiglio della Magistratura Militare, 2005) 261. 41 See chapter 15 above. 42 See Art 3 Code of Military Criminal Law. 43 See Art 121-1 of the Code of Military Justice (CMJ). 40

Military Criminal Justice and Jurisdiction over Civilians 567 of their family who accompany them abroad,44 persons who commit a crime against French armed forces45 amd those who take part in the joint commission of a crime with a person falling under the competence of military jurisdiction.46

I V. T H E S C R UT I NY OF THE EC THR OV ER MILITARY JUS T I C E : DI S C I P L I N ARY LAW AS A P EN AL MATTER

The ECHR system of protection covers both civilians and members of armed forces,47 since Article 1 states that the Convention applies to every individual within the jurisdiction of the Member States.48 This is true even though nothing in the Convention expressly extends its fundamental clauses to soldiers. Nevertheless, a reading of a number of provisions of the Convention demonstrates its general applicability to members of armed forces too, in particular where it imposes explicit limitations to fundamental rights for servicemen.49 For instance, in relation to the freedom of assembly and association, Article 11(2) provides that ‘this article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces’. In assessing military justice systems, the ECtHR has mainly been called upon to find out whether military courts have breached the procedural guarantees enshrined in Articles 5 and 6 of the Convention. However, before focusing on the compatibility of military jurisdiction with the provisions in question, it is opportune to address the role that the ECtHR has played in relation to military law by extending the scope of Articles 5 and 6 over disciplinary law, an issue widely debated among scholars.50 Member States of the CoE normally distinguish between disciplinary 44

See Art 121-2 CMJ. See Art 121-7 CMJ. 46 See Art 121-8 CMJ. 47 See Engel et al v The Netherlands [1976] ECtHR no 5100/71; 5101/71; 5102/71; 5354/72; 5370/72 (8 June 1976), §54. 48 See also Art 14, according to which ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. 49 Similarly, Art 4(3)(b) states that ‘For the purpose of this article the term forced or compulsory labour shall not include: any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service’. 50 See, inter alia, P Van Dijk, F Van Hoof, A Van Rijn and L Zwaak (eds), Theory and Practice of the European Convention on Human Rights (Antwerpen, Intersentia, 2006) 539; FG Jacob and RCA White, The European Convention on Human Rights (Oxford, Oxford University Press, 2006) 159; M Delmas-Marty, Towards a Truly Common Law: Europe as a Laboratory for Legal Pluralism (Cambridge, Cambridge University Press, 2002); JC Soyer and M de Salvia, ‘Article 6’ in LE Pettiti, E Decaux and PH Imbert (eds), La convention européenne des droits de l’homme: commentaire article par article (Paris, Economica, 1999) 254. 45

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and criminal law, sometimes indirectly showing their reluctance to allow human rights monitoring bodies to exercise their control over domestic military disciplinary systems. This is testified by the fact that CoE state parties, such as France and Spain, requested that Articles 5 and 6 of the Convention not be applied to disciplinary measures issued towards members of armed forces.51 Comparative research has also shown that in several cases military disciplinary law represents a ‘grey zone’, in which fundamental rights, such as the right not to be punished without trial, are not respected.52 Nonetheless, the ECtHR jurisprudence has been able to supervise this legal field traditionally closed to external interferences by extending the applicability of the Convention—and in particular of Article 6—to disciplinary law.53 It should be remembered that the application of the right to a fair trial as well as the right to liberty (Article 5) and the nullum crimen sine lege (Article 7) require the existence of a criminal charge. However, since the famous Engel case, the ECtHR has held that the formal classification of an offence—provided by domestic law—does not suffice to establish the scope of the fundamental clauses in question.54 Hence, the European judges have developed an autonomous concept of ‘penal matter’, which, beyond the domestic classification of the offence, relies on further criteria such as the nature of the offence and the degree of severity of the penalty to which the person concerned could be subject.55 The rationale behind this approach consists in avoiding that the designation of an offence as disciplinary may constitute for countries a means of eluding fundamental rights established by the Convention. Indeed, as the ECtHR has clearly pointed out, Member States, even while enjoying a full discretion to label ‘an offence as disciplinary instead of criminal’, cannot limit the scope of applicability of Article 6, which otherwise would be subordinated to their ‘sovereign will’.56 Through the material concept of penal matter, the Strasbourg Court examines whether disciplinary acts or omissions can be classified as criminal. In relation to disciplinary law, the ECtHR devotes particular attention to the criteria of the seriousness of the penalty. For instance, in the Engel case, in the light of this legal reasoning, the ECtHR held that disciplinary charges, whose aim was to impose a serious punishment 51 See A Nieto, ‘Los derechos humanos en el derecho penal military y en la guerra’ in Manacorda and Nieto, above n 11, 3. 52 G Nolte and H Krieger, Comparison of European Military Law System (Berlin, De Gruyter Recht, 2003) 141. 53 M Chiavario, ‘Diritto ad un equo processo’ in S Bartole, B Conforti and G Raimondi (eds), Commentario alla Convenzione Europea per la Tutela dei Diritti dell’Uomo e delle Libertà Fondamentali (Padova, Cedam, 2001) 159. 54 See Engel et al v The Netherlands, above n 47, para 81. 55 ibid, para 82. 56 ibid, para 81.

Military Criminal Justice and Jurisdiction over Civilians 569 involving the deprivation of personal liberty, fall within the notion of criminal sphere.57 The scope of Article 6, however, does not encompass all military disciplinary law, which is still partially removed from the application of the Convention system of protection.58 Therefore it is worth noting that, in several circumstances, the ECtHR has excluded the inclusion of disciplinary penalties in the penal matter.59

V. T H E JUD I C I AL C ON TROL OV ER P RE-TRIAL DE T E NT I ON BEFORE MILITARY C OURTS I N T H E C AS E LAW OF THE EC THR

In relation to military criminal justice, the approach of the ECtHR has been mainly oriented towards guaranteeing the independence and impartiality of military jurisdictions. European judges have critically assessed one of the most peculiar elements of military jurisdiction: the link between hierarchy and judicial role, on the basis of which hierarchical superiors or their substitutes perform jurisdictional functions.60 It follows that the approach of the Strasbourg jurisprudence has relied on covering the gap between hierarchical dependence and independence as an essential element of the judicial function. Unlike the Inter-American Court of Human Rights,61 the ECtHR has not addressed the standards of independence and impartiality in relation to military tribunals facing serious violations of human rights committed by members of armed forces, but the applicability of the right to a fair trial has often concerned military criminal proceedings faced by civilians or servicemen who have committed military offences. With regard to military proceedings, the ECtHR has mainly addressed the problem of assessing whether military officers may convict a serviceman (Article 5(1)(a)) or may authorise pre-trial detention (Article 5(3)). Article 5 seeks to guarantee individual liberty and security by 57

ibid, para 85. J Daniel, ‘Les Tribunaux militaires et Jurisdictions d’exception à l’épreuve de la jurisprudence de la Cour européenne des droits de l’homme’ in Lambert Abdelgawad, above n 11, 576. 59 See, inter alia, Bas v Turkey [2002] ECtHR, no 34493/97 (29 January 2002); Yuksel v Turkey [2002] ECtHR no 35078/97 (29 January 2002); Yaka v Turkey, [2002] ECtHR no 36201/97 (29 January 2002). 60 See Nieto, above n 51, 325. 61 See, in particular, Durand and Ugarte v Peru, above n 13, in which the Inter-American Court stated that ‘In this case, the military in charge of subduing the riots that took place in El Frontón prison resorted to a disproportionate use of force, which surpassed the limits of their functions thus also causing a high number of inmate death toll. Thus, the actions which brought about this situation cannot be considered as military felonies, but common crimes, so investigation and punishment must be placed on the ordinary justice, apart from the fact that the alleged active parties had been military or not’, para §118. 58

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establishing judicial scrutiny over measures entailing arrest or detention. For instance, among cases which allow detention consistent with the Convention system of protection, Article 5 refers to the ‘lawful detention of a person after conviction by a competent court’.62 According to the ECtHR, pursuant to the provision in question, the ‘competent’ court is one with jurisdiction to try the case, which enjoys independence from the executive and the parties,63 and provides individuals with adequate judicial guarantees.64 In light of these standards, European judges have held that the Dutch Supreme Military Court can fall within the meaning of competent court pursuant to Article 5(1)(a), even though the King could remove its four military members from their role.65 In the De Jong, Baljet and Van Den Brink case, the ECtHR did not seemingly consider the fact that the arrest was issued by a commanding officer over a member of the armed forces suspected of an offence set out in the Military Penal Code to be worrying. In this regard, Strasbourg judges have not argued whether a commanding officer may come within the meaning of ‘competent tribunal’.66 Nonetheless, in the AD v Turkey case, the ECtHR explicitly excluded that the supérieur militaire could be considered a competent tribunal. The applicant—a sergeant in the Turkish armed forces—had been accused of military disobedience and punished by a lieutenant-colonel with imprisonment for 21 days on the basis of Article 171 of the Military Criminal Code. Due to the deprivation of liberty involved in the penalty in question, the ECtHR found that it should have been issued by an independent competent court. The ECtHR, accepting the applicant’s submission, held that the military superior did not meet the standard of independence since he exercised his authority within the military hierarchy.67 Concerns about the role of military officers as judicial organs have arisen in particular in relation to the application of Article 5(3), according to which everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer 62 See Art 5(1)(a): ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: a the lawful detention of a person after conviction by a competent court’. 63 See, inter alia, Neumeister v Austria [1968] ECtHR no 1936/63 (27 June 1968), para 24. 64 With regard to Art 5(1)(a) Strasbourg judges point out that this provision has an autonomous scope from Art 6, stating that its requirements ‘are not always co-extensive with those of Article 6 (Art 6)’. 65 See Engel v The Netherlands, above n 47, para 68. 66 De Jong, Baljet and Van Den Brink v The Netherlands [1984] ECtHR no 8805/79; 8806/79; 9242/81 (22 May 1984), paras 43–44. 67 See AD v Turkey [2005] ECtHR no 29986/96 (22 December 2005), para 22.

Military Criminal Justice and Jurisdiction over Civilians 571 authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.

The first part of Article 5(3) provides every individual subject to pre-trial detention with the right to be brought ‘promptly before a judge or other officer authorised by law to exercise judicial power’. In this regard, the Strasbourg jurisprudence has mainly focused on clarifying the concept of ‘officer authorised by law’, developing an autonomous notion which is based more on substance than on terminology.68 Indeed, the ECtHR states that the officer authorised by law, in order to protect the individual detained from arbitrary deprivation of liberty, must meet procedural and substantive requirements.69 First, he must be independent of the executive and of the parties. This does not automatically exclude the officer being, in turn, subordinated to other independent judges or officers. The second condition has a procedural nature, since it establishes that, pursuant to Article 5(3), the officer must personally hear the person subject to deprivation of liberty. Thirdly, in accordance with the substantive requirement, he must ‘review the circumstances militating for or against detention, in deciding, by reference to legal criteria, whether there are reasons to justify detention or for ordering release if there are no such reasons’. With regard to military proceedings, particular concerns arise from the fact that the competent officer authorised by law to decide on the appellant’s pre-trial detention may take part in the subsequent phases of the proceedings on behalf of the prosecuting authority. Strasbourg judges, however, consider it unimportant whether the officer effectively intervenes at a later stage, since the mere possibility that he can play the role of prosecutor in the subsequent proceedings raises doubts about his impartiality.

V I . E C T H R AND THE IMPARTIALITY OF THE JUDG E I N M ILITARY P ROC EEDIN GS

The ECtHR has pointed out that in a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6(1) would not correspond to the aim and the purpose of that provision.70

68 See S Trechsel, Human Rights in Criminal Proceedings (Oxford, Oxford Press University, 2006) 507. 69 Schiesser v Switzerland [1979] ECtHR no 7710/76 (4 December 1979), para 31; see also Letellier v France [1991] ECtHR no 12369/86 (26 June 1991), para 35. 70 See, inter alia, Delcourt v Belgium [1979] ECtHR no 2689/65 (17 January 1979), para 25.

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This provision establishes one of the most important guarantees of the whole Convention: the right to be judged by an independent and impartial tribunal established by the law.71 The ECtHR considers these requirements strictly connected and in several cases takes both concepts into account together.72 By independent tribunal pursuant to Article 6(1), Strasbourg jurisprudence means that it is independent both of the executive and of the parties.73 In order to assess the independence of a court, the ECtHR relies in particular on four elements: the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. With regard to impartiality, the ECtHR requires that the tribunal lacks prejudice or bias, which must be examined on the basis of both a subjective and objective test.74 It follows that it is to be assessed whether, in the specific case, judges have prejudice or bias which may influence their decision in the case in question. In relation to the objective approach, the ECtHR states that ‘the tribunal established by the law’ must provide ‘sufficient guarantees to exclude any legitimate doubt’ about its independence and impartiality. In several cases, the ECtHR has assessed the compatibility of military tribunals with the standards provided by Article 6(1) without, however, providing a definition of military courts. In doing this, the Strasbourg case law shows that particular concerns arise not only with regard to courts which are formally classified as military by domestic justice systems, but even in relation to ordinary courts composed, even if only in part, of military judges.75 It is important to state, however, that the ECtHR holds that military courts are not per se contrary to the Convention system of protection.76 For instance, the European judges maintained that the Dutch Supreme Military Court, composed of two civilian judges and four military officers, was consistent with the standards set out in Article 6(1), although all the members were appointed by the Crown, following a joint recommendation from the Ministers of Justice and of Defence, who also had the power to dismiss them.77 Similarly, in relation to the 71

See S Trechsel, above n 68, 46. See Findlay v United Kingdom [1997] ECtHR no 22107/93 (25 February 1997), para 73. 73 See Ringeisen v Austria [1971] ECtHR no 2614/65 (16 July 1971), para §95. 74 See, inter alia, Sahiner v Turkey [2001] ECtHR no 29279/95 (25 December 2001), para 35. 75 ibid, para 36. 76 See Morris v United Kingdom [2002] ECtHR no 38784/97 (26 May 2002), para 59. 77 See Engel et al v The Netherlands, above n 47, §§ 30 and 89. In this judgment, the ECTHR stated that the Supreme Military Court in the Netherlands provided sufficient guarantees, relying on the fact that ‘the appointment of the military members was usually the last of their careers and that they were not, in their functions as judges, under the 72

Military Criminal Justice and Jurisdiction over Civilians 573 Special Criminal Court in Ireland, which deals with terrorist offences, the European Commission stated that such a court was consistent with Article 6(1).78 The Commission held that members of this court met the requirements provided by the provision in question, although they were appointed and dismissed by the government. Indeed, according to the reasoning provided by the Commission, beyond the legal provision concerning the composition of the court, it must be taken into account how ‘these provisions are interpreted and how they actually operate in practice’.79 Therefore, the members of the Special Criminal Court satisfied the standards of Article 6(1), as there had not been any attempt by the executive to interfere with the work of the Court and the Court’s independence could be subject to review by ordinary courts. European case law has devoted particular attention to examining the confidence that criminal tribunals must inspire in a democratic society.80 In this regard, in applying the objective test, the ECtHR takes into account the opinion of the individual, ascertaining whether his doubts about independence and impartiality are ‘objectively justified’.81 Following this consideration, in several cases, European judges have found that applicants’ misgivings over whether military courts met the standards of Article 6(1) were objectively justified. This is testified, for instance, by the Castillo Algar case, in which the ECtHR held that the applicant’s fear about the impartiality of the military court was objectively justified since two members of the Central Military Court sat in the chamber that upheld the order (auto de procesamiento) by which the applicant had been charged.82 In particular, the Strasbourg jurisprudence shows that an individual may legitimately suspect the independence and impartiality of military criminal courts which rely on a strong hierarchical structure. In the Findlay case, the ECtHR addressed the martial court system in the UK, in which judges were appointed by their superior in rank: the ‘convening officer’.83 The ECtHR determined a violation of Article 6(1), criticising the hierarchical dependence between judges and the ‘convening officer’. This officer had the power, inter alia, to decide which charges had to be brought, convene the court martial, appoint its members and dissolve it either before or during the trial. In addition, he acted as ‘confirming officer’, having the power to ratify or to change the decision of the command of any higher authority or under a duty to account for their acts to the service establishment’. 78 See Eccles, McPhillips & McShane v Ireland [1988] ECtHR no 12839/87 (23 December 1988). 79 ibid, 10. 80 See Hauschildt v Denmark [1989] ECtHR no 10486/83 (24 May 1989). 81 See, inter alia, Findlay v United Kingdom, above n 72, para 80. 82 See Castillo Algar v Spain [1998] ECtHR no 28194/95 (28 October 1998), para 50. 83 See Findlay v United Kingdom, above n 72.

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military court.84 In light of these functions, the fear of the applicant that the court did not meet the requirements of independence and impartiality, according to the ECtHR, was objectively justified, since judges were subordinated in rank to the convening officer.85 Furthermore, the ECtHR criticised the fact that the decision issued by the Court was not valid until it was ratified by the convening officer.86 After this judgment, the 1996 Armed Forces Act changed the role of the ‘Convening Officer’ to become consistent with this judgment, distributing his prosecutorial, adjudicatory and advisory functions among three different bodies: the Higher Authorities, the Prosecuting Authorities and the Court Administration Officers.87 The ECtHR did not miss the opportunity to positively address this reform, appreciating that after Findlay the 1996 Act had proceeded to limit the role of the convening officer, solving doubts on the independence and impartiality of martial courts.88 This is true in relation to the Cooper case, regarding the system in the air force, in which the Grand Chamber rejected the applicant’s submissions claiming a violation of Article 6(1), maintaining that the ‘Higher Authority, the Prosecuting Authority and the Court Administration Officer (“CAO”) did not cast any doubt on the genuineness of the separation of the prosecuting, convening and adjudicating roles in the court-martial’.89 The ECtHR did not hold a violation of Article 6(1), despite the military judges not being legally trained, since it found that they were provided with guidance and instructions by the Judge Advocate, and with briefing notes by the Court Martial Administration Unit. In addition, the ECtHR considered as decisive the fact that ‘judges could not be reported on in relation to their judicial decision making’.90 Nonetheless, despite the reform, with regard to martial courts in the navy system, in the Grieves case, the ECtHR maintained that doubts on the independence and impartiality of the tribunal were still justified.91 In this regard, the European judges held a violation of Article 6(1) in relation to the role of the Judge Advocate. Although the role of Judge Advocate was played by a civilian in the Morris case, Strasbourg judges 84

ibid, para74. ibid, paras 75–80. The ECtHR held a violation of Art 6(1) relying on the role of the convening officer in several cases. See, inter alia, Coyne v United Kingdom [2004] ECtHR no 25942/94 (24 September 2004), para 58; Cable et al v United Kingdom [1999] ECtHR nos 24436/94, 24582/94, 24583/94, 24584/94, 24895/94, 25937/94, 25939/94, 25940/94, 25941/94, 26271/95, 26525/95, 27341/95, 27342/95, 27346/95, 27357/95, 27389/95, 27409/95, 27760/95, 27762/95, 27772/95, 28009/95, 28790/95, 30236/96, 30239/96, 30276/96, 30277/96, 30460/96, 30461/96, 30462/96, 31399/96, 31400/96, 31434/96, 31899/96, 32024/96 and 32944/96 (18 February 1999), para 21. 86 See Findlay v United Kingdom, above n 72, para 77. 87 See International Commission of Jurists, above n 17, 345. 88 See, inter alia, Morris v United Kingdom, above n 76, paras 61–63. 89 See Cooper v United Kingdom [2003] ECtHR no 48843/99 (16 December 2003), para 115. 90 ibid. §§123–125. 91 See Grieves v United Kingdom [2003] ECtHR no 57067/00 (16 December 2003), para 91. 85

Military Criminal Justice and Jurisdiction over Civilians 575 were critical of the fact that the two members of the martial courts were junior serving officers and were appointed on an ad hoc basis.92 This could expose them to the ‘risk of outside pressure’, since the criminal justice system did not provide sufficient safeguards. Indeed, this risk posed doubts on the independence and impartiality of the tribunal, as the judges were not provided with a legal training and they were still subject to army discipline and reports. Moreover, the Court criticised the fact that there was ‘no statutory or other bar to their being made subject to external army influence when sitting on the case’.93 Further concerns were due to the fact that the reviewing authority, which constituted a non-judicial body, was provided with the power to review the applicant’s conviction, and even impose a more serious sentence than that issued by the military court.94 It is in relation to ‘guarantees against outside pressure’ that in the Greek case the Commission stated that the system of extraordinary martial courts during the military dictatorship in Greece could not be regarded as independent. In particular, the Commission regarded as decisive the fact that these courts exercised their jurisdiction ‘in accordance with decisions of the Minister of National Defence’.95

V I I . P R OS E C UT I NG ‘C IV ILIAN S’ BEFORE MILITARY C OURT S : A R E S T R I C TIV E AP P ROAC H BY THE EC THR

The Convention system of protection does not prevent military criminal courts which provide guarantees enshrined in Article 6(1) from trying members of armed forces who have committed military offences.96 However, the European judges distinguish from this circumstance the case in which domestic justice systems extend military jurisdiction over civilians. Despite Strasbourg case law recognising that the Convention does not prohibit military criminal courts prosecuting a civilian, the expansion of such jurisdiction over civilians—pursuant to Article 6(1)— ’should be subjected to particularly careful scrutiny’ and can only be accepted in ‘very exceptional circumstances’.97 In this regard, the ECtHR is clear in stating that civilians may be tried by military courts only when two conditions occur: there must be both ‘compelling reasons’ justifying such a jurisdiction, and a clear and foreseeable legal basis. The existence of such conditions must be assessed case by case, as ‘it is not sufficient 92

See Morris v United Kingdom, above n 76, para 70. ibid, para 72. 94 ibid, paras 73–75. 95 12 Yearbook of the European Convention on Human Rights. The Greek case, 148 (1969). 96 See, inter alia, Ergin v Turkey, above n 15, para 40. 97 ibid, paras 42–44. 93

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for the national legislation to allocate certain categories of offence to military courts in abstracto’.98 In so doing, the ECtHR is clear in stating that the role of the army, which is provided with special rules governing its internal organisation and hierarchical structure, must be confined to the field of national security. Since military courts can provide different treatments which derive from their different nature and reason for existence, civilians subject to military jurisdiction could ‘find themselves in a significantly different position from that of citizens tried by the ordinary courts, raising a problem of inequality before the courts’.99 In light of this reasoning, according to European judges, civilians brought before military jurisdiction for crimes against the armed forces may have the legitimate fear that such a jurisdiction does not meet the requirements of independence and impartiality. This is true in relation to the Ergin case, in which the applicant, who was the editor of a newspaper, was convicted by the Turkish Military Court of the General Staff of incitement to evade military service.100 It is important to note that the ECtHR, in assessing the compatibility of the military court with standards of independence and impartiality, referred to the situation at international level, emphasising the fact that there was a trend towards an exclusion of military jurisdiction over civilians.101 In particular, the Strasbourg judges noted that in peacetime, in the majority of European domestic justice systems, civilians are not subject to military jurisdiction. They can be prosecuted by such a jurisdiction only in very precise situations, such as in the case of a crime jointly committed by a member of the military and a civilian, or when civilians work for the armed forces.102 In so doing, the ECtHR referred to the decisions of the UNHRC and the Inter-American system of human rights protection,103 including, inter alia, Principle No 5 of the Report on the Issue of the Administration of Justice through Military Tribunals, according to which ‘Military courts should, in principle, have no jurisdiction to try civilians.104 In all circum98

ibid, para 47. ibid, para 48. 100 Indeed, before the constitutional reform, Art 145 established, inter alia, that: ‘Military courts shall also be responsible for dealing with offences committed by civilians where these are designated by special laws as breaches of military law, or have been committed against military personnel, either during their performance of duties designated by law or on military premises so designated’. 101 See Ergin v Turkey, above n 15, para 21. 102 See Maszni v Romania [2006], ECtHR no 59892/00 (21 December 2006), para 27. 103 The ECtHR refers, inter alia, to the General Comment on Article 14 of the International Covenant on Civil and Political Rights. With regard to the Inter-American system of Human Rights, European judges quote, in particular, Durand et Ugarte v Pérou, above n 13 and Cantoral Benavides v Peru [2000] IACHR (18 August 2008). 104 Doc E/CN.4/Sub.2/2005/9 of 16 June 2005. 99

Military Criminal Justice and Jurisdiction over Civilians 577 stances, the State shall ensure that civilians accused of a criminal offence of any nature are tried by civilian courts.’ In the wake of this critical approach adopted by the UNHCR and the Inter-American Court, the ECtHR pointed out that the same military court which has satisfied standards of independence and impartiality in cases against members of armed forces charged with committing military offences could breach Article 6 when it tries a civilian.105 The reasoning behind this lies in the fact that a civilian, who has no duty of loyalty to the army, can feel legitimate fear of being prosecuted by military judges. Therefore, relying on the appearance of independence that is perceived by the individual, the ECtHR applies a more strict approach in assessing the independence and impartiality of a military court when it covers crimes committed by civilians. Indeed, it may be remembered that in the Önen case the European judges stated that the Military Court of the General Staff was independent from the executive and provided sufficient guarantees under Article 6(1) in a criminal proceeding regarding incitement to evade military service committed by a serviceman.106 In contrast, in the Ergin case the ECtHR demonstrated a different approach, holding that there was a violation of Article 6(1), given that it is understandable that the applicant, a civilian standing trial before a court composed exclusively of military officers, charged with offences relating to propaganda against military service, should have been apprehensive about appearing before judges belonging to the army, which could be identified with a party to the proceedings.107

Similarly, in the Maszni case, the applicant—a civilian—had been convicted, inter alia, of inciting a policeman, subject to military law, to produce false documents. Pursuant to Article 35 of the Code of Criminal Procedure in Romania, the nexus between offences committed by a civilian and a member of the military means that the case comes under the scope of military jurisdiction.108 The government submitted that the extension of such jurisdiction over Mr Mazsni was necessary to assess the same facts together and avoid contradictory sentences.109 However, the ECtHR rejected these submissions holding that proceedings could be separated and the applicant could be brought before an ordinary court. As in Ergin, the European judges held that the applicant’s doubts on the independence and impartiality of the military court were objectively 105

See Ergin v Turkey, above n 15, para 53. See Önen v Turkey [2004], ECtHR no 32860/96 (10 February 2004), paras 11–12. 107 See Ergin v Turkey, above n 15, paras 53–54. 108 Art 35: ‘La compétence de la juridiction militaire s’étend aux civils quand les infractions qu’ils ont commises forment avec les infractions commises par un militaire un ensemble indivisible ou constituent des infractions connexes’. 109 See Maszni v Romania, above n 102, para 37. 106

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justified, relying on the fact that the tendency at the international level is towards a critical approach to the expansion of military jurisdiction over civilians.110 In the Martin case, the applicant, who was a civilian, was prosecuted and convicted in Germany by a British martial court—composed of four servicemen and two civilians—for the murder of a young lady committed in German territory.111 On the basis of the 1955 Armed Forces Act, he was subject to military jurisdiction because he was a family member residing with a member of the armed forces.112 Before the ECtHR, the government, relying on the NATO Agreement, claimed that the case fell within the British courts’ competence. It justified the application of military jurisdiction mainly by referring to the fact that the court martial constituted the only system with which to try the applicant in Germany and contended that ‘most of the witnesses were German and it might have been difficult to secure their attendance to give evidence in England’. The government added that ‘the applicant was familiar with the military system, its structure and its terminology, having spent his life in the military community’.113 On the other side, the applicant claimed a violation of Article 6(1), pointing out that there were no good reasons supporting the expansion of military jurisdiction over a civilian.114 The ECtHR, noting similarities with the Findlay judgment, found a violation of Article 6(1), relying on the fact that the Convening Officer had the power to dissolve the martial court and all its members, including civilian judges who were subordinate in rank to him.115 Although the ECtHR found a violation of Article 6(1) relying on these circumstances, it is also to be noted that European judges clearly expressed their doubts on the existence of ‘compelling reasons’ justifying the extension of military jurisdiction over the applicant.116 The ECtHR expresses particular concerns in cases in which civilians are prosecuted by courts composed, even if only in part, of members of armed forces.117 In particular, the ECtHR assesses whether the applicant can legitimately fear that the tribunal is not independent or impartial because the presence of a military judge ‘might allow [the court] to be unduly influenced by considerations which had nothing to do with the 110

ibid, para 59. See Martin v United Kingdom [2007], ECtHR no 40426/98 (24 January 2007). 112 Indeed, the Fifth Schedule of the Act establishes that ‘[p]ersons forming part of the family of members of any of Her Majesty’s Naval, Military, or Air Forces and residing with them or about to reside or departing after residing with them’ are subject to military jurisdiction. 113 See Martin v United Kingdom, above n 111, paras 36–38. 114 ibid, para 39. 115 ibid, 54. 116 ibid, para 45. 117 See Incal v Turkey [1998] ECtHR no 22678/93 [9 June 1998]. 111

Military Criminal Justice and Jurisdiction over Civilians 579 nature of the case’.118 In several cases, the ECtHR has accepted complaints claiming a violation of Article 6 in relation to ordinary courts composed both of civilians and members of the armed forces.119 This is true with respect to the National Security Court in Turkey, which included a member of the Military Legal Service. It should be remembered that this special court was established to deal with the threat to national security represented by the Kurdish separatist movement and has competence over ‘offences affecting Turkey’s territorial integrity and national unity, its democratic regime and its State security’. In the Incal case the claimant had been convicted by the Izmir Security Court for ‘disseminating separatist propaganda capable of inciting the people to resist the government and commit criminal offences’.120 The ECtHR, in accepting the applicant’s submissions, stated that he could be legitimately concerned by the presence of a military judge sitting in the National Security Court. The European judges recognised that it was not sufficient, pursuant to Article 6(1), that military members of the National Security Court provided certain guarantees of independence and impartiality, represented by the fact that they enjoyed the same professional training and constitutional safeguards as civilian judges, and were free from instructions provided by public authorities. Indeed, according to the ECtHR, the presence of a serviceman in the composition of the court could justify the applicant’s doubts about the independence and impartiality of the court, since the military judge could take into account ‘considerations which had nothing to do with the nature of the case’. The legitimate fear was in particular due to the fact that the military judge still belonged to the army, which is dependent on the executive power, and to the fact that he was subject to military discipline and assessment reports. Furthermore, the ECtHR noted that decisions pertaining to the appointment of military judges were to a great extent taken by the administrative authorities and the army.121 Similarly, in the Öcalan case, Strasbourg judges were invited to assess the compatibility of the National Security Court with Article 6(1).122 The ECtHR rejected the government’s submission, according to which, given that the military judge sitting in the National Security Court had been replaced by a civilian one in the course of the criminal proceedings one 118

ibid, paras 11–20. See, inter alia, Çiraklar v Turkey [1998] ECtHR no 70/1997/854/1061 (28 October 1998); Sürek v Turkey [1999] ECtHR no 26682/95 (8 July 1999); Sürek v Turkey [1999] ECtHR no 24762/94 (8 July 1999); Gerger v Turkey [1999] ECtHR no 24919/94 (8 July 1999); Okcuoglu v Turkey [1999] ECtHR no 24246/94 (8 July 1999); Sener v Turke, [2000] ECtHR no 26680/95 (18 July 2000); Canevi et al v Turkey [2004] ECtHR no 40395/98 (10 November 2004); Sevgin and Ince v Turke, [2005] ECtHR no 46262/99 (20 September 2005); Basboga v Turkey [2006] ECtHR no 64277/01 (13 June 2006). 120 See Incal v Turkey above n 117, paras 72. 121 ibid, para 68. 122 See Öcalan v Turkey, above n 28. 119

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week before the verdict was delivered, the tribunal was independent and impartial. In doing this, the European judges held that, pursuant to Article 6(1), every tribunal must satisfy the standards of independence during the investigation, the trial and the verdict. Therefore, if the military judge participates in an interlocutory decision ‘that forms an integral part of proceedings against a civilian, the whole proceedings are deprived of the appearance of having been conducted by an independent and impartial court’.123

V I I I . C ON C LUDIN G REMARK S

This study has shown how the majority of CoE state parties are moving towards the abolition or a restriction of military jurisdiction competences. Despite this trend, several countries apply military jurisdictions over civilians both in peace and wartime. This occurs, in particular, in two circumstances: either when civilians are considered as being co-perpetrators or accomplices of servicemen in the commission of a crime, or when they are working abroad for the armed forces. In several cases, the ECtHR has expressed its concerns with regard to the compatibility of military justice systems with the procedural guarantees enshrined in Articles 5 and 6 of the Convention concerning the liberty and security of persons, as well as the right to a fair trial. In doing this, the ECtHR has exercised notable influence, moving towards a limitation of the scope of military or special jurisdiction. This is true in relation to the National Security Court in Turkey, whose independence and impartiality have been criticised by the ECtHR. Even in countries which still rely on an expansive competence of military jurisdiction, such as the UK and Ireland, the European jurisprudence has led to a reform of military justice and has played an important role in extending the Convention guarantees to military trials. The ECtHR shows a stricter approach to the ascertainment of the standards of Article 6 in cases in which a military court prosecutes civilians. An individual’s fear of not being tried by an independent and impartial tribunal has been conceived of as objectively justified in particular in cases regarding civilians tried by military courts or tribunals composed, even if only in part, of military judges. Nonetheless, it is to be noted that the Convention system of protection does not prohibit domestic military courts from trying civilians, but this may occur only in particular circumstances, namely when there are ‘compelling reasons’. In light of this jurisprudence, extending military jurisdiction over civilians could raise human rights concerns, in particular with regard 123

ibid, para 115.

Military Criminal Justice and Jurisdiction over Civilians 581 to those military justice systems which have been deemed, on more than one occasion, to be acting inconsistently with the legal and procedural safeguards of Articles 5 and 6. Such an expansion could be in compliance with the Convention system of protection only if military jurisdictions start to provide the same guarantees as ordinary jurisdictions. Nonetheless, the question of the meaning of the maintenance of an autonomous jurisdiction would still be open. Indeed, due consideration should be given to the fact that it would be possible to encompass the military judiciary within the ordinary one, following the same path as countries such as Germany and France.

25 The Regulation of Private Military and Security Companies: Tax Aspects GIUSEPPE MELIS AND ALESSIO PERSIANI*

I . I NTRODUC TION

Private military companies (PMCs) and private security companies (PSCs) carry out military and security activities on the basis of contracts directly agreed with the public authorities of most important countries. As the US and the UK are the states involved most heavily in such military and paramilitary operations, most PMCs and PSCs are located therein. In this respect, each military operation started by the US and the UK, both as stand-alone operators or as a consequence of decisions taken at international level by organisations like the UN and NATO, constitutes a great opportunity for PMCs and PSCs to agree valuable contracts with the public authorities involved and to obtain high consideration for their security and military services. In some cases, PMCs and PSCs are also engaged in the supply of services to private multinational enterprises, especially concerning the protection of high-ranking officers of such enterprises involved in economic and financial relationships with public or private entities located in those areas of the world affected by wars, riots and, in general, military operations. The activity of PMCs and PSCs is closely linked to that of the governments and public authorities of the states involved. In this respect, all PMCs and PSCs endeavour to win the most valuable contracts through lobbying activities carried out by the same PMCs’ and PSCs’ officers, who often have past work experience in the army or in the public

* Sections I–IV were written by Prof Giuseppe Melis and sections V–VIII were written by Dr Alessio Persiani. The conclusions (section IX) were written by the authors together.

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authorities appointed for the management and organisation of military operations decided by the central governments. After the attribution of the contract, PMCs and PSCs supply their services through contractors sent to the place where their physical presence is required. Before the military and security services are actually supplied, the PMCs and PSCs train the contractors in order to obtain high-quality services from them. A high standard of service is important in the relationships with the public authorities involved, as it also represents the best argument for winning future contracts for military or security services.

I I . P MCS AN D P SC S: RELEVAN C E FOR TAX P URP OSES

This chapter focuses on the tax aspects of PMCs and PSCs. It will first examine the issue of the company’s residence for tax purposes and the possibility of its offices located abroad qualifying as permanent establishments. PMCs and PSCs may be involved in the application of CFC rules and transfer pricing provisions. Next, we will briefly examine the contents of Status of Forces Agreements, focusing our attention on their tax provisions. Finally, aspects regarding the exchange of information and the possibility of limiting such exchange for reasons related to the military and security operations carried out by PMCs and PSCs will be analysed.

III. RESIDEN C E

A. General Aspects: Relevance of Residence for Tax Purposes The jurisdictional connection can be qualified as the criterion linking the material element of a taxable event with the scope of a state’s taxing power. This taxing power is based on the tax sovereignty principle, that is, the ability of a nation to pursue whatever tax policy it chooses, free from external influences. The traditional jurisdictional principles can be identified as source and domicile, the latter also including residence and nationality. The scope of these criteria can be defined by reference to a connection between the relevant aspects of taxable persons or events and a territory. Such a reference may be objective—events conducted in a territory— or subjective, referring to events conducted by a person residing or domiciled in the territory. While in the former case the place of occurrence is taken into account and it corresponds to the source principle, in the

The Regulation of PMSCs: Tax Aspects 585 latter case the subjective aspects of the tax are taken into account, such as residence, domicile or nationality of the taxable person. The residence principle, generally known as ‘unlimited tax liability’ since it taxes resident persons on all of their income, tends to assume different and specific legal configurations in each country. In this sense, there is no unequivocal legal notion of residence that can be easily generalised in comparative law. As far as legal entities are concerned, their residence might be determined according to different criteria, such as the place of incorporation, the place where the company’s registered office is located, the place of effective management or the place where the company carries out its main business.

B. Tax Residence and Article 4 OECD Model Tax Convention on Income and on Capital As a consequence of the different criteria adopted by each state, a single company might well be considered to be resident in two different states. As a result, both states can consider the company liable for tax purposes, levying taxes on its worldwide taxable income. In such a case, international double taxation of the same income might occur. Current international law permits taxation of foreign financial transactions when a sufficient connection exists between the taxpayer and the taxing state, such as, for instance, the residence of the taxpayer concerned. Customary international law does not forbid double taxation; double taxation resulting from the interaction of the domestic laws of two (or more) states is consistent with international law so long as each individual piece of legislation is consistent with international law. As a consequence, international law can prevent double taxation only through the introduction of rules establishing which of the states involved must withdraw its tax claim. In this regard, double taxation conventions (DTCs) for the avoidance and prevention of double taxation are relevant. DTCs are international bilateral agreements aimed at the avoidance of international double taxation. The existing DTCs have been concluded along the lines of several uniform international models: the OECD Model, adopted by European OECD Member States, the UN Model, which better guarantees the source-based tax claims of developing states, and the US Model adopted by the US. With regard to the OECD Model, where a company is deemed to be a resident of two different contracting states, Article 4, paragraph 3 provides that such a company ‘shall be deemed to be a resident only of the state in which its place of effective management is situated’. Article 4, paragraph 3 determines residence for treaty purposes only, as the

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company involved continues to be a resident of both contracting states for the purposes of each domestic law.1

C. Dual Resident Companies and Place of Effective Management as A Tie-breaker Rule According to paragraph 24 of the Commentary on Article 4 of the OECD Model, ‘the place of effective management is the place where key management and commercial decisions that are necessary for the conduct of the entity’s business as a whole are in substance made’. For the determination of the place of effective management, all relevant facts and circumstances have to examined and taken into account. According to the most reputed opinions, what is decisive is not the place where the management directives take effect but rather the place where they are given. The most recent technological developments have strongly influenced the actual capacity of the place of effective management as a tie-breaker rule. It is worth remembering that board of directors meetings might will be held via videoconference, through direct streaming internet connections, etc. In such a case, the determination of the place where the key decisions of the enterprise are made might be very difficult—or almost impossible—and, in any case, it might well be located in a given state for tax purposes only.2 These considerations resulted in a wide and long-lasting debate among OECD Member States about the enduring ability of place of effective management to solve the issues related to dual-resident companies. This debate led in 2008 to some changes to the Commentary, where the OECD had to admit, first of all, the lack of agreement on the concept of place of effective management, pointing out that ‘some countries . . . consider that cases of dual residence of persons who are not individuals are relatively rare and should be dealt with on a case-by-case basis’. Moreover, the OECD realised the difficulties related to the determination of the place of effective management in some specific cases and, ultimately, its inability to act as a tie-breaker rule, stating that dual residence cases might be solved through a mutual agreement procedure between the contracting states concerned.

1 This means that, for instance, the company may well benefit from those advantages provided by domestic tax legislation and reserved for residents only. 2 See OECD, ‘The Impact of the Communication Revolution on the Application of “Place of Effective Management” as a Tie-Breaker Rule’ (2001), available at www.oecd.org.

The Regulation of PMSCs: Tax Aspects 587 D. PMCs, PSCs and Their Residence: Analysis of Consequences for Tax Purposes Most PMCs and PSCs are incorporated in high tax countries, such as the US, the UK, France, the Netherlands and South Africa. This seems attributable to the type of activity that they carry out, as their business success is closely linked to contracts awarded by the public authorities of such countries. In this sense, it seems reasonable that PMCs and PSCs have their head office in the same country to which the public authorities belong; and even more so in view of the lobbying activities they need to carry out in order to win the most valuable contracts. The fact that most officers of PMCs and PSCs have had past experience in the public sector and that this past experience is, to a certain extent, ‘necessary’ in order to have good relationships with those public authorities appointed to assign the contracts lead to the conclusion that PMCs and PSCs are effectively and actually managed in the country where they are resident for tax purposes. However, even in such a scenario, it is still possible for a PMC to be resident in a low tax country. Where, for instance, a PMC has its operational headquarters in Dubai, we cannot ignore the fact that the United Arab Emirates are ordinarily considered a low tax country. In such a case, provided that the parent company has subsidiaries in high tax countries (in the US, for instance), determination of the place of effective management could be relevant. More precisely, no problems arise if the key decisions of the company are actually taken in Dubai. However, having regard to domestic US provisions regarding tax residence, the US tax authorities might be interested in challenging the tax residence of such a company, affirming it to be resident in the US. In such a scenario, the company would be resident in two different countries and, for tax treaty purposes, the place of effective management of the company would be relevant. If there is evidence that the key management decisions are taken in the US, the US tax authorities could successfully challenge the residence of such a company for DTC purposes, by assuming that not only the subsidiary but also the parent company is a US resident. In this regard, importance could be attributed to the agreements concluded by the PMC and, in particular, to those agreements concluded with US resident companies. The economic relevance of these contracts could be interpreted as an indication of the place where key management decisions of the company are taken. However, such a possible challenge by the US tax authorities would need to be supported with accurate evidence regarding the place of management of the company. A similar conclusion could be drawn where the headquarters of the company is located in a high tax country and subsidiaries are resident in low tax countries. Even in this case—apart from considerations regarding

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CFC legislation and transfer pricing—the tax authorities of the high tax country may be interested in checking the place of effective management of the subsidiaries and, if there is sufficient evidence, in affirming that the relevant subsidiaries should be regarded as resident in the high tax country. Considering that some PMCs are resident in the UK for tax purposes and that they have subsidiaries in low tax countries, it is worth recalling that, according to UK case law, in the determination of where key decisions of a subsidiary company are taken, importance has to be attached not only to the content of directives and indications coming from the parent company, but also—and mostly—to the possibility for the subsidiary’s directors to freely depart from such directives and indications, taking different decisions from those indicated by the parent company’s directors.3 A lack of such ‘free departure’ might well constitute evidence that the key management decisions regarding the subsidiary company are effectively taken by the board of directors of the parent company.

I V. P E R MAN EN T ESTABLISHMEN T

A. General Aspects: Relevance of Permanent Establishment for Tax Purposes The source of business income—in the sense of income from commercial or industrial activity or from the rendering of services—is the place where the business is carried out. However, if an enterprise operates in different states, it can be difficult to determine what percentage of its income is derived from which state. Most states therefore apply a measure of approximation and ignore elements of a business which do not produce easily quantifiable income. The concept of permanent establishment is used to distinguish the elements of a business to which taxable income can be ascribed in practice from those which can be ignored. In this respect, if the presence of a non-resident enterprise in a given state4 has enough substance to meet the minimum threshold of permanent establishment, the state concerned can impose tax on the 3 See Unit Construction Co Ltd v Bullock [1959] 38 TC 712; Wood and another v Holden [2006] EWCA Civ 26; News Datacom Limited v Atkinson (HMIT) [2007] SpC 561. On this topic see also J Avery Jones, ‘Place of Effective Management as a Residence Tie-breaker’ [2005] Bulletin for International Taxation 20; R Couzin, Corporate Residence and International Taxation (Amsterdam, IBFD, 2002) 85 et seq; G Melis, Trasferimento della residenza fiscale e imposizione sui redditi (Milano, Giuffrè, 2009) 214 et seq. 4 This state is often called the host state, as distinct from the residence state, of which the enterprise is a resident.

The Regulation of PMSCs: Tax Aspects 589 business income derived by the non-resident enterprise through the permanent establishment.

B. Elements of Permanent Establishment According to Article 5 of the OECD Model Tax Convention on Income and on Capital There are some elements of an enterprise which are considered by most states to be a permanent establishment, such as a branch, a dependent agent and construction projects of a certain minimum duration. In contrast, auxiliary activities, such as advertising alone or market research, are considered by most states not to be a permanent establishment. Even in a contest in which the concept of permanent establishment may be very different in each state, Article 5 of the OECD Model provides for a notion of permanent establishment, ie ‘a fixed place of business through which the business of an enterprise is wholly or partially carried on’. As pointed out by the Commentary on Article 5, this definition contains the following conditions: (i) the existence of a ‘place of business’, ie a facility such as premises or, in certain instances, machinery or equipment; (ii) this place of business must be ‘fixed’, ie it must be established at a distinct place with a certain degree of permanence; and (iii) the carrying out of the business of the enterprise through this fixed place of business. The same Article 5 of the OECD Model also lists in paragraph 2 some examples constituting permanent establishment, such as a factory, an office or a workshop. This list is not exhaustive, as the existence of a permanent establishment always has to be checked with regard to the general definition stated by Article 5, paragraph 1. Paragraph 4, on the other hand, indicates a number of business activities which are treated as exceptions to the general definition laid down in paragraph 1 and which are not permanent establishments, even if the activity is carried out through a fixed place of business. The common feature of these activities is that they are, in general, preparatory or auxiliary activities, as explicitly pointed out by Article 5, paragraph 4, letter (e). An enterprise might well have a permanent establishment in a state even if it has no fixed place of business in that State within the meaning of the general definition set out by Article 5, paragraph 1. This is the case of the so-called agency permanent establishment, existing where there is a person acting for the enterprise in the host state and where some conditions are met. More precisely, an agent constitutes a permanent establishment if two requirements—one positive and one negative—are met: (i) the agent has, and habitually exercises, the authority to conclude contracts binding on the foreign enterprise relating to the proper business of that foreign enterprise; and (ii) the agent does not have an independent status as provided for in Article 5, paragraph 6 of the OECD Model.

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Regarding the first requirement, different views concerning the interaction between the paragraphs 5 and 6 of the OECD Model are very well known: while the majority of scholars—especially those coming from a ‘civil law’ background—consider the binding effect on the principal as a key element for the definition of dependent agent, other scholars, in a perspective more coherent with ‘common law’ principles on authority to conclude contracts, affirm that even though paragraph 5 is restricted to agents concluding contracts in the name of the foreign enterprise, it does not exclude all other agents from such a notion. The OECD Commentary takes a somewhat intermediate position and, privileging the ‘substance over form’ principle, it affirms that ‘the binding effect on the principal’ requirement has to be interpreted giving relevance not just to the formal aspect of the contract concluded in the name of the enterprise, the paragraph being equally applicable ‘to an agent who concludes contracts which are binding on the enterprise even if those contracts are not actually in the name of the enterprise’. In light of the different interpretations regarding the first requirement, the second requirement frequently plays a key role in the qualification of the agent for the purpose of the permanent establishment notion. In this respect, the OECD Commentary to Article 5, paragraph 6 lays down the so-called ‘independency test’, clarifying that an agent operating on behalf of a foreign enterprise can be deemed an independent agent for the scope of paragraph 6 if: (i) he is independent of the enterprise both legally and economically, and (ii) he acts in the ordinary course of his business when acting on behalf of the enterprise. As the degree of independence has to be analysed from both an economic and legal point of view, the OECD Commentary indicates a number of elements that should be appropriately taken into account, among which the ascertainment of whether the entrepreneurial risk is to be borne by the agent or the enterprise the agent acts on behalf of plays a fundamental role. As far as the ‘ordinary course of business’ requirement is concerned, the Commentary clarifies that relevance should be attributed to the agent’s actual conduct. An agent’s conduct can be encompassed in the ordinary course of his business if he performs activities falling within the sphere of his authority—and for which he assumes the risks and is correspondingly rewarded—having regard to the business activities customarily carried out within the agent’s trade.

C. PMCs, PSCs and Permanent Establishment, with Particular Regard to the Attribution of Profits to Permanent Establishment Most PMCs and PSCs have interests all over the world and consequently have offices in those countries where they can successfully

The Regulation of PMSCs: Tax Aspects 591 manage those interests. According to Article 5, paragraph 2 of the OECD Model, such offices qualify as permanent establishments of the parent company and, as a consequence, the state where the office is located can levy taxes on the business income attributable to the permanent establishment. In this sense, for most PMCs and PSCs, an issue of attribution of profits to the permanent establishment arises. Regarding such attribution, the OECD has recently published an in-depth report.5 According to this, it is first important to hypothesise the permanent establishment as if it were a distinct and separate enterprise. Then, according to a functional and factual analysis, it is necessary to determine the assets economically owned by the permanent establishment, the risks borne and managed by the permanent establishment and the free capital (ie funding that does not give rise to a tax deductible return in the nature of interest) of the permanent establishment. More precisely, the functional and factual analysis of the activity carried out by the permanent establishment will lead to (i) the attribution to the permanent establishment as appropriate of the rights and obligations arising out of transactions between the enterprise of which the permanent establishment is a part and separate enterprises; (ii) the identification of significant people functions relevant to the attribution of the economic ownership of assets, and the attribution of economic ownership of assets to the permanent establishment; (iii) the identification of significant people functions relevant to the assumption of risks, and the attribution of risks to the permanent establishment; (iv) the identification of other functions of the permanent establishment; and (v) the attribution of capital based on the assets and risks attributed to the permanent establishment. The second step consists of the pricing on an arm’s length basis of the dealings of the permanent establishment, comparing such dealings to those uncontrolled transactions (ie to transactions between independent enterprises) which can be compared with the ones carried out by the permanent establishment, having regard to the characteristics of property or services, the economic circumstances and the business strategies. In this second step, the OECD affirms that the methods accepted and developed for transfer pricing6 purposes might help. As regards the attribution of profits to permanent establishments of PMCs and PSCs, most functions seem to be carried out by the parent company, which—in view of the particular context in which the most valuable contracts are attributed—endeavours to obtain such contracts through, inter alia, lobbying activities with the

5 See OECD, ‘Report on the Attribution of Profits to Permanent Establishments’ (2008), available at www.oecd.org. 6 On these methods, see subsection V.

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public authorities of the countries involved. The functions carried out by the permanent establishments seem to be limited to arranging and supervising the actual performance of the services to be supplied according to the contracts. As a consequence, the risks born by these offices might be deemed quite limited in scope. If these arguments were supported by evidence grounded on each single contract concluded by the company, a limited share of the profits could be attributed to the permanent establishments of PMCs and PSCs. (i) Contractors Sent Abroad: Their Status from a Labour Law Perspective and Its Relevance for Tax Purposes In light of the considerations of paragraph 0, PMCs and PSCs could be deemed to have a permanent establishment even if they do not have a fixed place of business in the countries involved. This is the case of dependent agent permanent establishments provided for by Article 5, paragraphs 5 and 6 of the OECD Model. It should be recalled that the military and security services of PMCs and PSCs are actually supplied through contractors sent to those places where their physical presence is needed. In this respect, it might be of interest to gather information about the situation of these contractors from a labour law perspective. According to the opinion expressed by the US House Oversight and Government Reform Committee Chair Henry Waxman about Blackwater’s contractors, these contractors and armed guards are to be treated as independent contractors. As a consequence, Mr Waxman stated that Blackwater ‘may have engaged in significant tax evasion’, avoiding payment of ‘millions of dollars in Social Security, Medicare, unemployment and related taxes’. From this perspective, it seems that the correct treatment of contractors for labour law purposes should be that of employees, with the relative taxes and social security payments. Treating contractors as employees could also put PMCs and PSCs on the safe side with regard to possible challenges of dependent agent permanent establishment. Even if these contractors seem to be involved only in the actual performance of military and security agreements— being asked to supply the services agreed between the company and the public authority—their formal independent status could be taken as a starting point to challenge the existence of a dependent agent permanent establishment of PMCs and PSCs in the countries where these contractors are sent. In any case, such a challenge seems not to be adequately supported by facts, as the contractors seem not to have the authority to conclude contracts on behalf of and binding on the parent company.

The Regulation of PMSCs: Tax Aspects 593 V. C FC LEGISLATION

A. General Overview of CFC Legislation and Analysis of Different Models of CFC Legislation In the context of international tax planning, taxpayers often resort to practices aimed at establishing taxable entities or production activities in countries having a preferential tax regime. This has led to special anti-avoidance measures, taken at both the national and international levels, to curtail the use of tax havens. In the last two decades, the governments of many countries have focused on the practices used by taxpayers to locate their highly profitable activities, including financial activities, in jurisdictions having a preferential tax regime or having incentives that allow for a significant reduction in the level of income taxation. This approach was further strengthened at the EU level when it was confirmed by the Code of Conduct adopted in 1997,7 and at the international level through the publication by the OECD of its report entitled ‘Harmful Tax Competition: An Emerging Global Issue’.8 Both the EU Code of Conduct and the OECD report were designed to establish a common basis for countering the harmful tax competition practised by certain countries to the detriment of others. The approach aimed at contrasting the use of low tax countries received a great boost in the last few years, as a consequence of the worldwide financial crisis and the related policy developed at G8 level. As the OECD Director of the Centre for Tax Policy Administration Mr Jeffrey Owens clearly expressed, ‘the threshold of tolerance for tax evasion has dropped to zero . . . and in the context of the current crisis governments need tax revenue and citizens need to be reassured that the tax burden is being fairly shared’.9 Among anti-avoidance rules aimed at countering the use of tax havens, CFC legislation plays a fundamental role. There are two major models of CFC rules: the first is based on the so-called transactional approach, the second relies on the so-called jurisdictional approach. Where a state shapes its CFC rules according to the transactional approach, some specific forms of foreign-source income are directly attributed to the resident shareholder, irrespective of their actual distribution or payment to him. Generally, the attribution regards the different types of passive income, ie interest, dividends and royalties.10 In fact, when the transactional approach is adopted there is no need to provide 7 The EU Code of Conduct was introduced by a resolution of the ECOFIN Council of 1 December 1997. 8 Available at http://www.oecd.org/dataoecd/33/1/1904181.pdf. 9 See J Owens, ‘Moving Towards Better Transparency and Exchange of Information on Tax Matters’ [2009] Bulletin for International Taxation 557. 10 See S Boon Law, ‘Trends in the Taxation of Outbound Foreign Direct Investment’ [2009] Bulletin for International Taxation 257.

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a definition of tax haven, as the attribution of the specified forms of income takes place irrespective of the foreign state where the company is located. Such a model is adopted, for instance, by the US CFC rules. If the jurisdictional approach is adopted, the application of CFC rules depends on the qualification as a tax haven of the foreign state where the company is located. In this case, resident entities are required to include in their taxable income the income derived by their CFCs located in countries or territories considered to have a privileged tax regime (on the basis of tax and other criteria), irrespective of the formal or actual distribution of the CFC’s income in the form of dividends. The central purpose of CFC rules—both those based on the transactional and the jurisdictional approach—is to eliminate deferral, meaning the postponement of current taxation of foreign income that has economically accrued to a taxpayer through the taxpayer’s ownership interest in a foreign entity. In the absence of CFC rules, the foreign income of a non-resident company is not subject to a shareholder’s residence state tax until the income is distributed to him or he disposes of his shares in the foreign company. Because of the effect of time on the value of money, the longer the period of deferral, the closer the effective rate of tax on the foreign income becomes to the foreign rate. Consequently, foreign income that benefits from deferral is taxed at a lower effective rate than domestic income.

B. CFC Legislation and DTCs: Internal Relationships The relationship between CFC rules and DTCs raises some critical issues regarding the compatibility of the former with the latter. The final result of CFC legislation is that the business income derived by a company resident in a given state is taxed not in the state of residence but in the state where the shareholder resides. In this sense, a contrast might exist between the CFC rules and the principles stated in the OECD Model, which attributes to the state of residence the power to levy tax on business income, except for the case in which the company has a permanent establishment in the source state. Even if an issue concerning the compatibility of CFC rules with DTCs principles exists, a number of arguments in favour of such compatibility can be submitted. First of all, the OECD—in its 1998 report ‘Harmful Tax Competition: An Emerging Global Issue’—recommended the adoption of CFC rules in order to better contrast the use of tax havens. Moreover, the prevention of tax avoidance is one of the aims of DTCs and, in this sense, CFC legislation is coherent with such goals. Secondly, CFC rules do not levy taxes on the foreign resident company, but on the resident shareholder of the same company, so an

The Regulation of PMSCs: Tax Aspects 595 infringement of the OECD Model principles on the taxation of business income might well be excluded. Last but not least, it should be highlighted that most tax havens have not concluded DTCs, so a practical problem of compatibility of CFC rules with DTCs arises only in a relatively small number of cases.

C. PMCs, PSCs and CFC Legislation Applicability to Subsidiaries Located in Low Tax Countries It is a fact that a number of PMCs and PSCs have subsidiaries located in low tax countries. For the scope of CFC rules, the distinction between offices and subsidiaries could be relevant: while in the first case a permanent establishment arises, in the second case CFC rules and transfer pricing provisions might play key roles. In those cases in which the PMCs or PSCs actually have and control a subsidiary abroad, CFC legislation becomes relevant and could apply. In fact, PMCs and PSCs could have an advantage where the CFC rules are inspired by the transactional approach as compared to the jurisdictional approach. As the income of such companies should be normally deemed business income, CFC rules based on the transactional approach tend to levy taxes on passive income, ie dividends, interest and royalties. In such a case, the income attributable to the foreign subsidiary of the PMC or PSC would not be taxed in the resident state of the parent company under the relevant CFC provisions. Obviously, the situation is different where the CFC rules—even if based on the transactional approach—levy taxes even on a portion of the active income, ie on the business income of the foreign subsidiary. Where CFC rules inspired by the jurisdictional approach apply, all those PMCs and PSCs having subsidiaries located in low tax countries could be taxed even with respect to income attributable to foreign subsidiaries, irrespective of the type of income earned by the foreign subsidiary. Coherently with their anti-avoidance aim, CFC rules provide for safe harbour clauses, normally based on the actual business activity carried out by the subsidiary. More precisely, if the foreign subsidiary actually carries out a commercial or industrial activity, the parent company can avoid the application of CFC rules and, consequently, the income attributable to the foreign subsidiary becomes taxable in the resident state of the parent company only when dividends are distributed. As far as PMCs and PSCs are concerned, it should be noted that in most cases the subsidiaries located in low tax countries actually carry out a business activity, providing the military and security services agreed in the related contracts. In this sense, it is likely that PMCs and PSCs can avoid the application of CFC rules in those countries which, on the basis of specific

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safe harbour rules, allow the parent company not to tax the income of foreign subsidiaries on the basis of CFC rules.

V I. TRAN SFER P RIC IN G

A. General Overview of Transfer Pricing Aspects When a company sells goods or supplies services to a foreign resident company which is part of the same group and the price for the goods sold or the services supplied does not correspond to the fair market value, a transfer pricing issue arises. In fact, through the adoption of a transfer pricing policy, the group might well allocate taxable income in low tax jurisdictions (or in those states with lower tax rates), leaving deductible costs in high tax jurisdictions (or in those states with higher tax rates). The key elements of transfer pricing are: (i) the different states of residence of the companies involved; (ii) the membership of the companies involved in the same group; and (iii) a difference between the price fixed for the sale of goods or for the supply of services and the fair market value.11 When these requirements are met, a transfer pricing issue exists, the solution being an adjustment of the price fixed by the companies to the fair market price, ie to the price which would have been fixed if the transactions had occurred between independent enterprises (the so-called arm’s length principle). OECD Member States have agreed that, for tax purposes, the profits of associated enterprises may be adjusted in order to correct such distortions and ensure that the arm’s length principle is satisfied. An appropriate adjustment is achieved by establishing the conditions of the commercial and financial relations that one would expect to find between independent enterprises in similar transactions under similar circumstances. The statement of the arm’s length principle is found in Article 9, paragraph 1 of the OECD Model, according to which [when] conditions are made or imposed between . . . two [associated] enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.

11 See, eg G Peracin, ‘Transfer Pricing: The Growth of International Trade and the Development of Tax Laws and Practices in Europe and the World’ [2008] Intertax 82.

The Regulation of PMSCs: Tax Aspects 597 B. OECD Transfer Pricing Guidelines The OECD has developed important guidelines for the determination of the arm’s length price, required for the correct application of transfer pricing rules.12 The first method aimed at determining the arm’s length price is the comparable uncontrolled price method, which compares the price charged for property or services transferred in a controlled transaction to the price charged for property or services transferred in a comparable uncontrolled transaction in comparable circumstances. If there is any difference between the two prices, this may indicate that the conditions of the commercial and financial relations of the associated enterprises are not arm’s length, and that the price in the uncontrolled transaction may need to be substituted for the price in the controlled transaction. Where the features of the transaction examined do not allow the determination of the arm’s length price according to the comparable uncontrolled price method, the resale price method can be applied. The resale price method begins with the price at which a product that has been purchased from an associated enterprise is resold to an independent enterprise. This price (the resale price) is then reduced by an appropriate gross margin (the ‘resale price margin’), representing the amount out of which the reseller would seek to cover its selling and other operating expenses and, in the light of the functions performed (taking into account assets used and risks assumed), make an appropriate profit. What is left after subtracting the gross margin can be regarded, after adjustment for other costs associated with the purchase of the product (eg customs duties), as an arm’s length price for the original transfer of property between the associated enterprises. The third method is the cost plus method. This begins with the costs incurred by the supplier of property (or services) in a controlled transaction for property transferred or services provided to a related purchaser. An appropriate cost plus mark up is then added to this cost, to make an appropriate profit in light of the functions performed and the market conditions. What is arrived at after adding the cost plus mark up to the above costs may be regarded as an arm’s length price of the original controlled transaction. Apart from such traditional transaction methods aimed at a direct determination of the arm’s length price, OECD guidelines also describe other alternative methods, named transactional profit methods, which examine the profits that arise from particular controlled transactions. 12 See OECD, Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (Paris, OECD, 2001). On the relevance of such guidelines, see, eg J Calderon, ‘The OECD Transfer Pricing Guidelines a Source of Tax Law: Is Globalization Reaching the Tax Law?’ [2007] Intertax 4.

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Transactional profit methods are based on the assumption that profit arising from a controlled transaction can be an indicator of whether the transaction was affected by conditions that differ from those that would have been made by independent enterprises in comparable circumstances. Among the transactional profit methods is the profit split method—which seeks to determine the division of profits that independent enterprises would have expected to realise from engaging in the transaction—and the transactional net margin method, based on the calculation of the net margin derived from independent enterprises involved in a transaction similar to the one at hand. According to the 2010 version of the transfer pricing guidelines, a hierarchy among the different methods and particularly between traditional transaction methods and transactional profit methods is no longer provided. The new standard is represented by the adoption of the ‘most appropriate method to the circumstances of the case’.

C. PMCs, PSCs and Transfer Pricing Aspects Related to Services Supplied Abroad through Contractors Transfer pricing issues concerning PMCs and PSCs certainly arise regarding the relationships between the parent companies and related subsidiaries. However, where the company carries on a business activity abroad through a permanent establishment, transfer pricing methods could also help in the determination of the profits attributable to the permanent establishment. Most PMCs and PSCs have subsidiaries abroad, specifically in countries which ordinarily have lower tax rates than those—above all the US and the UK—where the parent company is based. Consequently, a shift in the attribution of profits from higher tax countries to lower tax countries might occur. This could be the case, for instance, with those companies having offices in the United Arab Emirates, Hong Kong or Kuwait. The same conclusion applies for those PMCs having offices in the Fiji Islands. Moreover, most PMCs and PSCs develop training programmes and other related activities in order to allow the contractors to provide highquality military and security services in those places where such services should be supplied. The contractors are well equipped with weapons and other useful means. These activities are ordinarily carried out at a central level, by the parent company resident in a high tax country, but they also benefit contractors related to foreign subsidiaries of the same parent company. In this sense, manoeuvres on the prices of those services supplied by the parent company to foreign subsidiaries might be used for tax planning purposes, in order to lower the taxable base of the parent company in its higher tax resident state. Such tax planning

The Regulation of PMSCs: Tax Aspects 599 opportunities may be particularly evident in those cases in which ‘centralised’ services are supplied by companies set up specifically for this purpose. The solution to transfer pricing issues does not appear easy in the case of PMCs and PSCs as, due to the particular features of the services performed, it may not be easy to find comparable uncontrolled dealings. In this respect, it is likely that in such cases transactional profit methods can help in the determination of the arm’s length price.

V I I . S TAT US O F FORC ES AGREEMEN TS AN D TAX ISSUES

A. Status of Forces Agreements: An Overview Status of Forces Agreements (SOFAs) establish the framework under which the military personnel of a given state operate in a foreign country.13 These agreements provide for rights and privileges of military personnel while they are present in the foreign jurisdiction, determining how the domestic laws of the foreign country are applied to the military personnel of the contracting state. SOFAs may have a bilateral or multilateral nature. The SOFA concluded within the framework of NATO represents the most important multilateral SOFA. It was signed in London on 19 June 1951 and is applicable not only to all NATO countries, but also to the 24 other countries that participate in the NATO Partnership for Peace programme. However, most SOFAs are bilateral: in view of the contents of the agreement, a bilateral relationship can better fulfil the specific needs of the contracting states. SOFAs can include many provisions. The issue most commonly addressed is the exercise of criminal jurisdiction over the personnel operating in the given territory and the agreement as to which party is able to assert criminal and/or civil jurisdiction. Beyond provisions regarding the assertion of jurisdiction, rules concerning administrative and operational matters can also be included in SOFAs. Among those rules, SOFAs may well also address tax issues.

B. SOFAs, PMCs, PSCs and Provisions Relevant for Tax Purposes It should be noted that not all SOFAs are applicable to PMCs, PSCs and contractors. Given that the relevance of PMCs and PSCs has grown 13 See eg RC Mason, ‘Status of Forces Agreement (SOFA): What Is It, and How Has It Been Utilized?’ (2011) Congressional Research Service, available at www.fas.org/sgp/ crs/natsec/RL34531.pdf.

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in recent decades, only the SOFAs concluded in recent times expressly address the status of contractors, extending to them the applicability of rules ordinarily provided for the official armed forces personnel. In light of the above, we have singled out three SOFAs which also apply to contractors: (i) the SOFA concluded between the US on the one side and the Marshall Islands and the Federated State of Micronesia on the other (SOFA US–Marshall Islands); (ii) the SOFA between the US and the Democratic Republic of Timor-Leste (SOFA US–Timor-Leste); and (iii) the SOFA between the US and the Republic of Iraq (SOFA US–Iraq). As mentioned, these SOFAs apply not only to the personnel of the armed forces of the contracting state operating abroad (in the case at hand, the US), but also to the contractors, generally defined as ‘legal entities, including corporations and natural persons’ present in the territory concerned ‘for the purpose of executing their contracts with the Government of the United States, or subcontracts of such contracts, in support of the Armed Forces of the United States and designated as such by the Government of the United States’.14 Moreover, the SOFA US–Marshall Islands also applies to ‘dependents’, defined as the spouses and the children of the US personnel, including contractors. As far as tax issues are concerned, these SOFAs provide for exemptions regarding the movements of goods needed by the personnel for military operations. Such exemptions normally concern customs duties and, more generally, indirect taxes related to the exportation or importation of goods related to the military activities. This is the case, for instance, of Article 15, paragraph 1 of SOFA US–Iraq, according to which the United States Forces and United States contractors may import, export (items bought in Iraq), re-export, transport, and use in Iraq any equipment, supplies, materials, and technology, provided that the materials imported or brought in by them are not banned in Iraq as of the date this Agreement enters into force

and ‘the importation, re-exportation, transportation, and use of such items shall not be subject to any inspections, licences, or other restrictions, taxes, customs duties, or any other charges imposed in Iraq’. An even wider exemption is provided for by Article V, paragraph 1, a) of the SOFA US–Marshall Islands, according to which ‘the services, activities, facilities, equipment, material, income or any other property or transactions of the Armed Forces of the United States or United States contractors’ are ‘exempt from any tax, fee or similar charge imposed by the Government of the Marshall Islands or the Federated States of Micronesia’. Pursuant to this provision, any taxing power pertaining to 14 This is the definition of ‘United States Contractors’ provided by the SOFA US– Marshall Islands. A similar definition is also provided by the SOFA US–Iraq. No specific definition of contractors is provided by the SOFA US–Timor-Leste.

The Regulation of PMSCs: Tax Aspects 601 the Marshall Islands and the Federated States of Micronesia seems to have been waived. As a consequence, such a general waiver may well also influence any challenges by the local tax authorities related to the potential taxation of income attributed to PMCs and PSCs on the basis of the source principle. For instance, the existence of such a rule may hold back any challenge concerning the existence of a permanent establishment of PMCs and PSCs in the territory concerned, avoiding any critical issue for the directors of the military companies involved. The same Article V of SOFA US–Marshall Islands also provides for an almost full exemption of income received by individuals operating in the territory. Article V, paragraph 1, c) of the aforementioned SOFA provides for the taxation of the income received by individuals employed by US contractors up to a level of 5% of their annual income. This portion of the income is taxed according to the rules for personal income tax generally applicable within the Marshall Islands and the Federated States of Micronesia. As evident, SOFAs may play a fundamental role in tax matters, providing for exemptions or the non-application of taxes otherwise applicable. Such a circumstance constitutes a great advantage for PMCs and PSCs, which can benefit from better conditions—at least for tax purposes—compared to companies carrying out different activities in the country concerned.15 On the other hand, not all SOFAs are applicable to PMCs and PSCs, but only those concluded in recent decades, when states chose to consider these particular private companies in a way very similar to public entities involved in the military defence of the state.

V I I I . E X C H AN GE OF IN FORMATION

A. General Overview and Relevance of Exchange of Information in the Present Tax Scenario The globalised economy allows taxpayers to freely choose the state in which to set up a trading or financial activity. However, even in this context, national boundaries do not move and the international scale of such activities often represents a serious obstacle that the national tax administrations have to face in their audit activities. As a consequence, 15 On the issues concerning the application of tax exemptions provided for contractors also to subcontractors, see K DeYoung and J Partlow, ‘Afghanistan’s Push to Tax US Contractors Could Renew Tensions’, Washington Post, 17 January 2011, available at www.washingtonpost.com/wp-dyn/content/article/2011/01/16/AR2011011603645.html; R Nordland, ‘Conflict on Afghan Efforts to Tax Foreign Contractors’, New York Times, 17 January 2011, available at www.nytimes.com/2011/01/18/world/asia/18afghan.html.

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states are now fully aware of the fundamental role played by exchange of information.16

B. Exchange of Information and the OECD Model Tax Convention on Income and on Capital Article 26 of the OECD Model provides the rules under which information may be exchanged to the widest possible extent, with a view to laying the proper basis for the implementation of the domestic tax laws of the contracting states and for the application of specific provisions of the DTC. According to Article 26, the exchange of information is not restricted by Articles 1 and 2 of the OECD Model, so that the information may include data about non-resident taxpayers and may relate to the administration or enforcement of taxes not referred to in Article 2 of the OECD Model. In the last two decades, OECD reports and publications have often emphasised the need for countries to improve the exchange of tax information in order to better prevent international tax evasion. In its 1998 Report on Harmful Tax Competition, the OECD recommended restricting bank secrecy on tax matters and promoting intergovernmental cooperation for tax enforcement and collection. In 2002, the OECD Committee on Fiscal Affairs comprehensively reviewed Article 26 of the OECD Model in order to better ensure the exchange of information. That review also took into consideration developments available up to that date, such as the Model Agreement on Exchange of Information on Tax Matters developed by the OECD Global Forum Working Group on Effective Exchange of Information17 and the ideal standard of access to bank information as described in the report ‘Improving Access to Bank Information for Tax Purposes’.18 As a result of this review, several changes were made regarding both the text of Article 26 and the related Commentary. According to Article 26, paragraph 1 of the OECD Model, the competent authorities of the Contracting States shall exchange . . . information as is foreseeably relevant for carrying out the provisions of this Convention or to the administration or enforcement of the domestic laws concerning taxes of every kind and description imposed on behalf of the

16

See SC Ruchelman and S Shapiro, ‘Exchange of Information’ [2002] Intertax 408. See X Oberson, ‘The OECD Model Agreement on Exchange of Information—a Shift to the Applicant State’ [2003] Bulletin for International Taxation 14. On the specific case of Singapore, see T How Teck, ‘Singapore: Implementing the New OECD Model Standard on Exchange of Information’ [2009] Bulletin for International Taxation 578. 18 Available at http://www.oecd.org/dataoecd/3/7/2497487.pdf. 17

The Regulation of PMSCs: Tax Aspects 603 Contracting States, or of their political subdivisions or local authorities, insofar as the taxation thereunder is not contrary to the Convention.

Article 26 explicitly states that the exchange of information is subject to the clause of ‘foreseeable relevance’: this means, on the one hand, that information is to be provided to the widest possible extent and, on the other hand, that so-called ‘fishing expeditions’—ie requests for information not supported by an effective tax audit activity—are not admitted. Moreover, the clause of ‘foreseeable relevance’ entails that the interested state has to be unable to procure such information by means of inquiries of its own, so that all domestic sources of information must have been exhaustively tapped before a request for information may be sent.19 If these conditions are not met, the requested state is not obliged to furnish information. According to Article 26, paragraph 1, information can be exchanged in three different ways: (i) on request, when it concerns a particular and specific case; (ii) automatically, when information about one or various categories of income having their source in one contracting state and received in the other contracting state is transmitted systematically to the other state;20 and (iii) spontaneously, when a state has acquired, through autonomous investigations, information supposedly of interest to another state. Article 26, paragraph 2 of the OECD Model stipulates that any information received . . . shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to the taxes . . . Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.

These confidentiality rules apply to all information exchanged, and it is safeguarded according to the domestic laws of the receiving state. As a

19

See K Vogel, On Double Taxation Conventions (London, Kluwer, 1997) 1406. See eg OECD Council Recommendation No C(81)39, ‘Recommendation of the Council concerning a Standardised Form for Automatic Exchanges of Information under International Tax Agreements’ (5 May 1981); OECD Council Recommendation No C(92)50, ‘Recommendation of the Council concerning a Standard Magnetic Format for Automatic Exchange of Tax Information’ (23 July 1992); OECD Council Recommendation No C(97)29/ FINAL, ‘Use of Tax Identification Numbers in an International Context’ (13 March 1997); OECD Council Recommendation No C(97)30/FINAL, ‘Recommendation of the Council of the OECD on the Use of the Revised Standard Magnetic Format for Automatic Exchange of Information’ (10 July 1997); OECD Council Recommendation No C(2001)28/FINAL, ‘Use of the OECD Model Memorandum of Understanding on Automatic Exchange of Information for Tax Purposes’ (22 March 2001). 20

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consequence, information may not be disclosed to a third country unless there is an express provision in the DTC allowing such disclosure.

C. Circumstances Which May Limit the Exchange of Information, with Special Regard to that Related to Military Operations Exchange of information is subject to certain limitations, which may be relevant where PMCs and PSCs are involved. More precisely, according to Article 26, paragraph 3 of the OECD Model, provisions regarding the exchange of information cannot impose on the state involved the obligation a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State; b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).

In this context, attention should be focused in particular on Article 26, paragraph 3, c), which allows the interested state to refuse the exchange of information not only where such an exchange might entail the disclosure of trade, business, industrial commercial or professional secrets, but also where public policy provisions could be infringed.21 The Commentary on Article 26, paragraph 3 clarifies that those secrets should not be taken in too wide a sense, as too broad an interpretation would in many cases render the exchange of information provided for in the DTC ineffective. Moreover, the same Commentary specifies that the interested state, in considering a refusal under Article 26, paragraph 3, c) of the information requested, has to take into appropriate consideration the confidentiality rules set out in Article 26, paragraph 2. As information cannot be disclosed to persons other than those ‘concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to the taxes’, such an obligation might represent a sufficient safeguard for business or professional secrecy requirements. As far as PMCs and PSCs are concerned, it is unlikely that the exchange of information regarding such companies might infringe business or professional secrets. Apart from professional secrets, according to the Commentary 21 See P Adonnino,’Lo scambio di informazioni tra le Amministrazioni finanziarie’ [2008] Diritto e pratica tributaria 705; F Persano, La cooperazione internazionale nello scambio di informazioni. Il caso dello scambio di informazioni in materia tributaria (Torino, Giappichelli, 2006).

The Regulation of PMSCs: Tax Aspects 605 a trade or business secret is generally understood to mean facts and circumstances that are of considerable economic importance and that can be exploited practically and the unauthorised use of which may lead to serious damage (eg may lead to severe financial hardship).22

Even if such a situation cannot be completely excluded, it seems unlikely that activities carried out by PMCs and PSCs can be covered by trade or business secrecy. Much more relevant would be the provision of Article 26, paragraph 3, c) of the OECD Model concerning refusal of the exchange of information for public policy reasons. The Commentary expressly clarifies that ‘this limitation should only become relevant in extreme cases’. However, the same Commentary affirms that such a limitation to the exchange of information ‘may . . . be invoked where the information constitutes a state secret, for instance sensitive information held by secret services the disclosure of which would be contrary to the vital interests of the requested State’. Due to the particular war or post-war scenarios where PMCs and PSCs normally operate, it is likely that their activities are considered state secrets, depending on the domestic law of the state involved. In this regard, it might well happen that a request for information sent for tax purposes asks the receiving state for an auditing activity which interferes with information constituting state secrets. This could be the case, for instance, of a request concerning the existence of a permanent establishment abroad: the investigation of the activities effectively carried out abroad by the PMC or PSC might well entail the disclosure of information to be considered secret according to relevant domestic law. If so, the receiving state might refuse to exchange the information regarding the relevant PMC or PSC.

I X. C ON C LUSION S

The planning of military and paramilitary activities by PMCs and PSCs might well be influenced by tax aspects. First of all, even if such companies are normally resident in high tax countries (such as the US and the UK), in some cases they control subsidiaries scattered all around the world, and particularly in low tax countries (for instance, the United Arab Emirates or Hong Kong). Such a situation might raise questions with regard to the residence of such subsidiaries, especially where the key management decisions of controlled companies are taken by the directors of the parent company. Moreover, the circumstance that PMCs and PSCs ordinarily operate in countries affected by war troubles, but often benefiting from a low tax regime, might allow the same companies 22

Para 19.2 of the Commentary on Article 26; para 3 of the OECD Model.

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a tax efficient allocation of profits and expenses, according to an appropriate transfer pricing policy. In fact, as offices in those countries often constitute a permanent establishment of the parent company, an issue of attribution of profits to the permanent establishments arises, to be solved pursuant to principles stated in the OECD transfer pricing guidelines. It seems more difficult for PMCs and PSCs to be affected by CFC legislation matters, at least where such legislation is shaped according to the jurisdictional approach: even if some PMCs and PSCs control subsidiaries located in low tax countries, these subsidiaries carry out an actual economic activity and normally do not constitute artificial or wholly artificial arrangements aimed at tax avoidance. As a consequence, PMCs and PSCs should be able to meet the requirements set out for the application of CFC safe harbour rules based on the existence of an actual economic activity in the low tax country. Moreover, it should also be considered that PMCs and PSCs may benefit from privileged tax regimes provided for by SOFAs, being exempt from most customs duties and indirect taxes and, in some cases, enjoying favourable tax treatment with respect to direct taxes. A very interesting scenario could be that of the exchange of information: in a context in which such an exchange is continuously encouraged and improved, PMCs’ and PSCs’ activities might well constitute state secrets, resulting in the possibility of the requested state refusing to exchange the information.

PRIV-WAR Recommendations for EU Regulatory Action in the Field of Private Military and Security Companies and their Services March 2011

P REAMBLE

The PRIV-WAR Consortium members:1 Considering that the European Union (EU) and its Member States are bound by international law, including human rights law (HRL) and international humanitarian law (IHL) and that respect for human rights is one of the core values on which the European Union is founded;2 Also considering that the EU and its Member States recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted on 12 December 2007, which, according to Article 6(1) of the Treaty on European Union, shall have the same legal value as the Treaties; Taking into account that the main purposes of the PRIV-WAR research project, funded by the European Commission under the Seventh Framework Programme, are to assess the impact of private military and security companies (PMSCs) on the respect of human rights and IHL; to analyse existing regulatory frameworks at the national, international and 1 European University Institute (Florence, Prof Francesco Francioni); LUISS ‘Guido Carli’ (Rome, Prof Natalino Ronzitti); Justus-Liebig Universität (Giessen, Prof Thilo Marauhn); Université Panthéon-Assas, Paris II, Centre Thucydide (Prof Serge Sur and Prof Nicolas Haupais); University of Sheffield/University of Nottingham (Prof Nigel White); Riga Graduate School of Law (Prof Ineta Ziemele); and Utrecht University (Prof Eric Myjer). 2 Art 2 TEU.

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EU levels; to explore ways in which the EU could contribute to ensuring compliance with these international legal norms, and to present concrete options for possible regulatory measures, based on the project’s output; Noting that, in pursuing these objectives, the PRIV-WAR consortium has carried out substantial research on the manner in which HRL and IHL are impacting upon the establishment and operations of PMSCs in EU Member States and third states;3 Noting also that the PRIV-WAR research has revealed substantial differences among EU Member States in regulatory approaches and legislative measures; Also noting that several regulatory initiatives have been launched at the international level with a view to improving monitoring and oversight of the private military and security sector, including the Montreux Document,4 which is a set of guidelines based on existing international law; the Draft of a Possible Convention on Private Military and Security Companies, being elaborated in the framework of the United Nations Human Rights Council5 and which is still at a tentative stage; and the International Code of Conduct for Private Security Service Providers,6 which is a manifestation of self-regulation; Mindful that, in the spirit of these Recommendations, EU Member States should refrain from outsourcing to PMSCs, tasks amounting to a direct participation in hostilities and should prohibit registration or

3 The research results have been published in various ways. An academic volume was published by Oxford University Press in January 2011: F Francioni and N Ronzitti (eds), War by Contract: Human Rights, Humanitarian Law and Private Contractors. Moreover, several articles have been published in international legal journals, including six contributions presented at the Symposium on Private Military Contractors and International Law (European Journal of International Law, Vol 19 (2008) No 5); some articles in the Journal of Conflict and Security Law (Vol 13 (2008) No 3 and Vol 15 (2010) No 3), as well as in the Italian Yearbook of International Law (Vol XVIII (2008)), the Annuaire français de droit international (LV-2009) and the Human Rights Law Review (Vol 11 (2011)). Finally, a series of reports on the existing regulation regarding PMSCs at the national level in EU Member States and third states is available on the project website, http://www.priv-war.eu, as well as several analytical papers (EUI Working Papers) addressing various aspects of the applicability of HRL and IHL to PMSCs, and the accountability of these companies and their employees (also available at http://cadmus.eui.eu/handle/1814/11397). 4 ‘Montreux Document on Pertinent Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict’, adopted on 17 September 2008 at the initiative of the Swiss Government and the International Committee of the Red Cross; available at http://www.eda.admin.ch/psc. 5 The Human Rights Council decided, in its Res.A/HRC/15/L.22 of 27 September 2010, to establish an open-ended intergovernmental working group on the elaboration of a legally binding instrument on the regulation, monitoring and oversight of the impact of the activities of private military and security companies on the enjoyment of human rights. 6 Available at http://www.dcaf.ch/News/International-Code-of-Conduct-for-PrivateSecurity-Providers-Officially-Signed.

Annex: PRIV-WAR Recommendations 609 licencing of companies which perform services amounting to a direct participation in hostilities7; Convinced that regulatory action at the EU level is appropriate, on its own merit and in support of existing initiatives for the following reasons: • With the entry into force of the Lisbon Treaty, entailing the legal upgrade of the EU Charter of Fundamental Rights and the obligation upon the EU to accede to the European Convention of Human Rights and Fundamental Freedoms, EU institutions and EU Member States, when acting within the scope of EU law, have confirmed and consolidated their significant role as guarantors of fundamental rights, and their willingness to be bound by them; • In addition to their obligations under the EU Charter of Fundamental Rights, EU Member States are bound by regional and international human rights conventions and by IHL instruments to prevent and redress violations of the rights enshrined therein within their juridiction; • The disparity in national legislation and regulatory approaches within the EU regarding PMSCs may lead to strategic relocation of private contractors to Member States with the most lenient regulatory regimes, which may result in distortions within the internal market and failure to ensure the required minimum safeguards for the protection of human rights and IHL. Differences in levels of protection of fundamental rights may have a negative effect on the freedom of movement of private security companies and on the observance of the required minimum safeguards (similarly, Directive 95/46, recital 7); • The export of PMS services to third states—either during an armed conflict or in crisis or post-conflict situations—has proved to entail a particularly high risk of violations of human rights or IHL; • The lack of minimum standards and requirements for regulation and supervision potentially means that PMSCs may operate inconsistently with EU and Member States’ policies; • There is still a substantial lack of information about the nature and scope of the operation of PMSCs; their relationships with governments, and the methods by which they are made accountable in the event of harm; • The European Commission has stated that it would assess, by 28 December 2010, the possibility of presenting proposals for additional 7 The research of the PRIV-WAR consortium has found that in France, Germany, Italy, Portugal, Finland and the Netherlands military activities as such are considered to be the exclusive competence of the state. As a tendency, private military services are tolerated only in post-conflict situations for purposes of stabilisation. However, in other Member States, including the UK, such restrictions do not apply. Therefore, the EU regulatory measure should encourage all EU Member States to refrain from outsourcing tasks amounting to a direct participation in hostilities to PMSCs.

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harmonising instruments for the Internal Market in the framework of the General Services Directive 2006/123/EC; thereby recognising a possible role for the EU in this field; The European Court of Justice has confirmed that private security services fall in principle within the scope of application of internal market law in several cases involving Spain, Italy and the Netherlands;8; The Council adopted Recommendation 2002/C 153/01 of 13 June 2002 regarding cooperation between the competent national authorities of Member States responsible for the private security sector; Regulation already exists at the EU level regarding the regulation of export of dual-use goods by means of an EU-origin Regulation (common commercial policy) and by means of the CFSP initiatives on a Code of Conduct for Arms Exports, in the form of a Common Position; Therefore the Member States should adopt rules in conformity to the objectives set out in these texts, in order to ensure coherence with these instruments; The European Parliament has commissioned an expert study, which identifies possible paths for EU action in this field;9 In the context of the EU’s external action, prospective regulation within the EU may have an impact on other states involved in outsourcing private military and security services; in particular if the regulation of PMSCs is included in the political dialogue with third states; A regulatory initiative in this field may enhance cooperation and partnerships with regional organisations and with other states that are involved in contracting out their defence and security tasks.

Have decided to adopt the following Recommendations, with explanatory comments, as a joint effort of the PRIV-WAR project consortium:

1. EU regulatory measures related to PMS companies and their services are necessary in order to ensure better compliance with human rights law (HRL) and international humanitarian law (IHL). 1a. Military and security services are increasingly outsourced to private contractors. This reality has raised serious concerns, in particular since 8 See Case C-114/97 Commission v Spain judgment of 29 October 1998; Case C-355/98 Commission v Belgium, judgment of 9 March 2000; Case C-283/99 Commission v Italy, judgment of 31 May 2001; Case C-171/02Commission v Portugal, judgment of 29 April 2004; Case C-189/03 Commission v Netherlands, judgment of 5 May 2003; Case C-514/03 Commission v Spain, judgment of 26 January 2006; Case C-465/05 Commission v Italy, judgment of 13 December 2007. 9 AJK Bailes and C Holmqvist, ‘The Increasing Role of Private Military and Security Companies’ EP/EXPO/B/SEDE/FWC/2006-10/Lot4/09, PE 385.521 (2 October 2007).

Annex: PRIV-WAR Recommendations 611 it involves a risk of violations of human rights and, where applicable, international humanitarian law, as evidenced by several incidents.10 1b. Human Rights are fundamental and mandatory requirements within the EU legal order and Member States are bound by them. Article 6(3) TEU reaffirms that fundamental rights as guaranteed by the European Convention on Human Rights and as they result from the constitutional traditions common to the Member States are general principles of EU law. As outlined in the Communication from the Commission COM(2010) 573 of 19 October 2010 (Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union), the Charter, which in accordance with Article 6(1) of the Treaty on European Union has become legally binding, concerns in particular the legislative and decision-making work of the Commission, Parliament and the Council, the legal acts of which must be in full conformity with the Charter (Article 51(1) of the Charter11). According to this same article, the institutions, bodies, offices and agencies of the EU shall therefore respect fundamental rights, and promote the application thereof in accordance with their respective powers. In addition, Member States are bound by the general principles of EU law and by the Charter when implementing EU law, including when they participate in EU military and civilian missions on behalf of the Union.

2. For the purpose of these Recommendations, private military and security companies can be defined as business corporations offering security, defence and/or military services to states, international organisations, non-governmental organisations, private companies and/or armed groups. These services include but are not limited to armed guarding and protection of persons, objects, buildings or merchant vessels; maintenance and operation of weapons systems; prisoner detention and interrogation; intelligence; as well as advice to or training of local forces and security personnel.12 10 Well-know examples include the Nisour Square incident, whereby 17 civilians were killed by private security contractors (Blackwater; USA) in Iraq in 2007; and the involvement of private contractors (CACI, Titan; USA) in the abuse and torture of prisoners at Abu Ghraib in 2003. For details on other incidents, see the National Reports Series, available at http://www.priv-war.eu, in particular the reports concerning the USA, South Africa and Colombia; see also http://www.humanrightsfirst.org/wp-content/uploads/ pdf/08115-usls-psc-final.pdf. 11 Emphasis added. 12 Definitions used in other regulatory initiatives: Montreux Document (2008): ‘PMSCs are private business entities that provide military and/or security services, irrespective of how they describe themselves. Military and security services include, in particular, armed

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2a. Effective regulation requires targeting both services and entities providing services because the structure of human rights obligations entails the need to oversee the relevant actors even before they engage in actual services from which harm may arise. 2b. Regulatory measures should apply to all legal and natural persons offering or providing PMS services in or from any of the EU Member States and operating within states outside the EU. This includes persons from third states offering these services in the EU (eg through subsidiary companies), as well as sub-contractors.

3. Options for EU regulatory measures are the following: a) A Directive (Internal Market), harmonising national measures regulating Private Military and Security (PMS) services, including service providers and the procurement of services; or b) A non-legally binding instrument, such as a Council Recommendation, containing guidelines for the Member States on the domestic regulation of PMS services, including services delivered in third states; and c) A Decision (CFSP), regulating the export from Member States of PMS services to third states and the use of such services by the EU; or d) A non-legally binding instrument, such as a Council Strategy Document, defining guidelines for the export from Member States of PMS services to third states and the use of such services by the EU. 3a. These options can either be adopted separately, or in combination, guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel’ (Preface, para 9); Draft of a Possible Convention on PMSCs (UN HRC): Article 2 (a) Private Military and/ or Security Company (PMSC) refers to a corporate entity which provides on a compensatory basis military and/or security services by physical persons and/or legal entities. (b) Military services refers to specialised services related to military actions including strategic planning, intelligence, investigation, land, sea or air reconnaissance, flight operations of any type, manned or unmanned, satellite surveillance, any kind of knowledge transfer with military applications, material and technical support to armed forces and other related activities. (c) Security services refers to armed guarding or protection of buildings, installations, property and people, any kind of knowledge transfer with security and policing applications, development and implementation of informational security measures and other related activities.

Annex: PRIV-WAR Recommendations 613 ie a Directive (a) and a Decision (c); or a Council Recommendation (b) and a Council Strategy Document (d). In the case of a Directive and a CFSP Decision, their implementation should be effected in compliance with Article 40 TEU. 3b. An appropriate legal basis for a harmonising Directive setting minimum standards (option a) is Article 114 TFEU (ex-Article 95 EC)13, which allows the EU to adopt measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market. As long as the conditions for recourse to Article 114 TFEU are fulfilled, the EU legislator is not prevented from pursuing other non-market values including fundamental rights protection, as a decisive factor for the choices to be made in the regulation.14 3c. According to consistent case law of the ECJ, as outlined in its judgment in Case C-58/08 Vodafone, para 32, the conditions for using Article 114 as a legal basis are the following: ‘While a mere finding of disparities between national rules and the abstract risk of infringement of fundamental freedoms or distortion of competition is not sufficient to justify the choice of Article 95 EC as a legal basis, the Community legislature may have recourse to it in particular where there are differences between national rules which are such as to obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market.’ ‘Recourse to that provision is also possible if the aim is to prevent the emergence of such obstacles to trade resulting from the divergent development of national laws’ (Case C-58/08, para 33). 3d. As evidenced by the research undertaken in the context of the PRIV-WAR project (see National Reports Series, available at http:// www.priv-war.eu), there are significant disparities between national regulatory regimes among the EU Member States.15 The regulatory approaches range from the outright prohibition of PMSCs in some states; to a specific regulatory regime in other states, while some Member States have adopted a system of ‘laissez-faire’. Differing regulatory requirements in Member States may restrict access of a PMSC legally operating in one Member State to the market of another Member State. An obstruction of the free movement of services, and therefore of the 13 An example is Directive 95/46/EC of 24 October 1995, on the protection of individuals with regard to the processing of personal data and on the free movement of such data. 14 As confirmed by the ECJ in Case C-58/08, para 36. In Case C-58/08, para 36, the ECJ recognises that consumer protection may be a decisive factor in this regard. The same applies to health protection as confirmed in Germany v Parliament and Council (para 88); British American Tobacco (Investments) and Imperial Tobacco (para 62); and Joined Cases C-154/04 and C-155/04 Alliance for Natural Health and Others [2005] ECR I-6451, 30, cited by the ECJ in the same paragraph. 15 The evaluation of distortions of the internal market justifying the adoption of a Directive will be the object of an impact assessment by the Commission.

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functioning of the internal market, may occur when one Member State requires a PMSC established in another Member State to abide by its own domestic higher standards in order to protect human rights and IHL (eg providing adequate training of its personnel; ensuring strict supervision of compliance with international norms during their operations; requiring adequate insurance for harm inflicted by its personnel), since this results in substantially higher costs for the company, compared to registering or obtaining a license in an EU Member State which has less stringent requirements. Insofar as those regulations are compatible with the Treaty (see Case C-465/05 and others cited above) harmonisation of regulatory standards will facilitate the exercise of the right of establishment and freedom to provide services. Besides Article 114 TFEU, also Articles 53(1) and 62 could provide a legal basis for the regulation of procurement of PMSCs; here a parallel may be drawn with Directive 2009/81 on defence procurement. 3e. The legal basis for a Council Recommendation to the Member States (option b) is Article 288 TFEU (ex-Article 249 TEC). A Recommendation might be considered a suitable initial measure enabling a subsequent assessment of whether a binding measure is necessary. 3f. A decision in the context of the CFSP based on Articles 25 and 28 or 29 of the Treaty on European Union (option c), would address the provision of private military and security services outside the EU. The CFSP could be used as an alternative legal basis for regulating EU service providers. However, a CFSP decision could only cover services provided outside the EU. Alternatively, a CFSP measure could be used alongside an internal market based measure, to cover the promotion of the EU’s standards within third countries. Such a decision may be based on Articles 25 and 28 or 29 TEU, since the EU competence in matters of foreign and security policy covers all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy (Article 24(1) of the Treaty on the European Union). A parallel can be drawn in this regard with Common Position 2008/944/CFSP on common criteria for the national export, brokering and licensing of military goods and Common Position 2003/468/CFSP on arms brokering. An example of a Council Joint Action is 2008/230/CFSP on support for EU activities in order to promote the control of arms exports and the principles and criteria of the EU Code of Conduct on Arms Exports among third countries. 3g. A non-legally binding instrument such as a Council Strategy Document (option d) can be based on Article 25(a) and Article 26(1) or (2) TEU. The Updated European Union Guidelines on promoting

Annex: PRIV-WAR Recommendations 615 compliance with international humanitarian law (IHL), 2009/C 303/06 of 15 December 2009 is an example in this regard. 3h. The use of PMSCs by the EU itself in the context of its CSDP operations will be further addressed in Recommendation No.8.

4. The object and scope of EU regulatory measures should include a normative system for the establishment, registration, licensing and monitoring of PMSCs located within the jurisdiction of EU Member States or hired by these states or other entities and organisations for the delivery of services, including in third states, and for reporting to competent authorities on violations of applicable law by such companies and their personnel and sub-contractors. EU regulatory measures should indicate that the Member States shall make the provision of licenses conditional on the fulfillment of certain standards. These should include: compliance with HRL and IHL; training in HRL and IHL, including on women’s and children’s rights and the specific protective measures that are required; vetting of PMSC personnel; technical training for example on gun use and policies; specific conditions according to the situation in which the services will be provided; compliance with EU policies in the areas of security and foreign policy; satisfactory reporting requirements; adequate insurance and remedial provision. 4a. The implementation of such measures is primarily the responsibility of the Member States. However, in its role as guardian of the Treaties, the European Commission would need to monitor the proper implementation of the agreed EU measures, also in the light of the now legally binding EU Fundamental Rights Charter (COM(2010) 573). 4b. In order to enable domestic courts to oversee the responsibility of companies and personnel, inter alia on the basis of tort or breach of contract, it is important not to leave compliance with public policies, including HRL and IHL, entirely to contractual arrangement. Through the use of conditions for the establishment, registration, licensing, monitoring and reporting on violations of applicable law by PMSCs, governmental control can to some extent be exercised over contracts, including compliance with the regulatory measures. Moreover, the definition of such standards would also be useful in the event that

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the ECJ becomes involved, when an issue of interpretation of the EU measures arises. 4c. Licensing conditions should also serve as yardsticks to assess compliance by the parties concerned with the relevant (international) legal standards and would play a role in decision-making regarding hiring and renewal of contracts.

5. EU regulatory measures should address the due diligence obligations under HRL and IHL of EU Member States in their capacity as hiring states and home states of PMSCs. As a minimum they should warrant that only registered and properly licensed companies are hired. EU regulatory measures should stipulate that PMSCs ensure that their personnel, sub-contractors and those in their supply chains adhere to HRL and IHL standards. 5a.The hiring entities (eg state organs, private companies, NGOs) of PMS services should check if the company is duly registered and has a proper license, and if it has a poor record of performance. Such a screening should be carried out before the conclusion or continuation of a contract. The hiring entities should also check if the PMSC has taken adequate measures to ensure adherence to HRL and IHL standards by its personnel, sub-contractors and those in their supply chains. 5b. This Recommendation aims at ensuring that the Member States on whose territory PMSCs are registered, and the states which hire such companies, comply with their due diligence obligations under international law, including HRL and IHL. These include the obligation to prevent violations of human rights; and when violations occur as a result of conduct of PMSCs or their personnel, these states also have a duty to investigate such violations and to ensure that remedies are available to victims and their families. Member States should be encouraged to enact penal legislation in order to prosecute, try and if found guilty, punish those responsible, and assist the authorities of the host state in prosecuting those responsible. 5c. In this context, also due regard should be paid to the due diligence obligations of the host state, on whose territory PMSCs operate, with regard to compliance with HRL and IHL.

6. EU regulatory measures should set minimum standards for monitoring and sanctions to be applied at the level of Member States. Such standards may include requirements for administrative or civil procedures, and when appropriate,

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the use of criminal sanctions if this is consistent with the domestic law of the Member States. The regulatory measures may also set standards for self-regulation as complementary means for ensuring accountability of PMSCs and their personnel. 6a. Hiring states or home states, members of the EU, should establish monitoring processes and compliance mechanisms to ensure that PMSCs comply with HRL and IHL standards 6b. When EU Member States hire a PMSC they should insert appropriate clauses in the contract for monitoring and enforcing compliance with the regulatory measures. 6c. The EU regulatory measures should provide that the Member States require a commitment from the industry to ensure that these standards are also complied with by subcontractors and/or those in their supply chains. 6d. Self-regulation of PMSCs should be consistent with the ongoing process towards a renewed EU strategy on Corporate Social Responsibility as a follow-up to the European Commission’s 2006 Communication on CSR (COM 2006 (136) Final) and the new initiatives that are being developed by the Commission in this context. As was announced at the European Multistakeholder Forum on CSR, Plenary Meeting in November 2010, a new Communication from the Commission on CSR may be adopted in the course of 2011.

7. The EU should ensure coordination of the monitoring practices at the national level and of self-regulation of PMSC entities, with a right of data access for national authorities. Such coordination may include a register of poor performance, claims of poor performance, criminal investigations and civil suits, and other elements such as remedies granted that may offer an objective record of performances by PMSC companies. 7a. It is common for implementation of EU instruments to be periodically monitored and evaluated at EU level. EU measures laying down the requirements of national level monitoring and sanctioning in the field of PMSCs would equally benefit from such mechanisms. 7b. Considering the legal bases of the EU measures foreseen, and the intimate link with EU internal and external fundamental rights protection, Council involvement in different configurations would seem

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appropriate. Apart from working groups dealing with the internal market and external affairs, also COHOM (external human rights policy) and FREMP (internal human rights policy) would need to be included in coordination of national level monitoring practice and self-regulation to ensure coherence and effectiveness.

8. A Decision based on Article 29 TEU, or a non-legally binding instrument, such as a Code of Conduct, should also define standards for the hiring of PMSCs by the EU itself in the context of its CSDP operations. This Decision or non-legally binding instrument should also define standards for monitoring and sanctions at the level of the EU in relation to PMSC entities that are hired at the level of the EU. 8a. Both the European Union and its Member States need to ensure compliance with Fundamental Rights by the personnel engaged in EU CSDP missions in third countries. 8b. EU regulatory measure adopted at the EU level should be explicitly referred to in the relevant CSDP instruments setting up the legal framework for EU civilian missions and military operations. Such instruments include, inter alia, OPLANs, Council decisions approving and launching the missions/operations, SOFAs and SOMAs (as they currently stand, the latter do not regulate the conduct of local and international contractors, but a reference to the CFSP instruments governing their conduct may nevertheless be included), and contracts concluded by EU Heads of Mission/Operation Commanders with international and local contracted staff. 8c. A regulatory measure in the CSDP area could build on existing nonbinding instruments, such as the Generic Standards of Behavior for ESDP Operations, which already apply to internationally and locally contracted civilian personnel. 8d. EU regulatory measures should also apply to PMSCs engaged in EU missions as part of a contribution offered by a third state. This might be done by inserting a clause in the agreement that is concluded between the EU and the third state for such a contribution.

9. EU regulatory measures should also include guidelines on the use of PMSCs in its humanitarian aid operations. As a general rule, they should not be employed unless certain conditions are met. 9a. Major humanitarian actors, including UN agencies and NGOs,

Annex: PRIV-WAR Recommendations 619 increasingly rely on private firms to provide security in crisis situations. The European Commission’s Humanitarian and Civil Protection department (ECHO) itself may employ private companies in its operations. 9b. Within the framework of the initiatives for security of humanitarian aid workers, the EU should develop guidelines for the use of private security companies in ECHO humanitarian aid operations. The ongoing review of the ‘Standards and practices for the security of humanitarian personnel and advocacy for humanitarian space’ to be made available for ECHO partners and other NGOs, should introduce clear standards for the recourse to private companies, in particular as regards recruitment, training, use of weapons and accountability, in order to ensure compliance with human rights.

10. EU regulatory measures should stipulate that the EU and its Member States should ensure that effective access to justice and appropriate remedies are available to victims for injuries suffered as a result of the wrongful conduct of PMSC personnel. 10a. The EU and its Member States are bound by human rights conventions, including the ECHR and the Charter of Fundamental Rights of the EU, to provide access to justice and effective remedies to victims of human rights abuses. Remedies should be available either from the home or hiring state itself in recognition of its due diligence obligations, or directly from the responsible PMSC in accordance with the companies’ due diligence obligations recognised in international frameworks for corporate social responsibility.16 10b. This Recommendation is also in line with Article 81(1) TFEU (exArticle 65 TEC), on judicial cooperation in civil matters and with Article 81(2e), which aims at ensuring effective access to justice.

11. The EU should take into consideration the need for regulation and accountability of PMSCs in its external relations including, as appropriate, inserting a specific clause on PMSCs in its international agreements with third states. 11a. In the context of its political dialogue with third states, including

16 Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, J Ruggie, ‘Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy” Framework’, A/HRC/14/27 (9 April 2010).

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the US, the EU should address the risks posed by the use of PMSCs and have consultations on regulatory measures. 11b. EU involvement in international initiatives, such as the Draft of a Possible Convention on Private Military and Security Companies as is being developed in the context of the UN Human Rights Council, should be considered. 11c. The EU should address the issue of satisfactory regulation in the area of PMS services by third countries, within the framework of the human rights conditionality clauses included in its international trade and cooperation agreements. 11d. A PMSC clause in international agreements with third states should include the commitment to cooperate and to enhance compliance by PMSCs with HRL and IHL.

12. EU regulatory measures should apply in the event that PMSCs are employed to protect merchant shipping in countering piracy, in self- defence and in conformity with HRL, IHL, and the international law of the sea. 13. The EU regulatory measures should be without prejudice to more stringent measures that Member States may adopt or maintain, consistently with international law and EU law, for the regulation and supervision of PMSCs and their services.

Index Access to justice 29, 30, 313, 327, 618 Afghanistan Enduring Freedom 352–354, 532, 533, 536 EUPOL 71 n.58, 84, 85 ISAF 263, 352, 353, 401, 401 n.124, 532, 533 Loghar province 166–169, 174 Africa African, Caribbean and Pacific (ACP) States 93–96, 103 African Union 94, 547 Mercenarism 495, 504 Position of African countries on the Draft Convention 17 PMSCs in – 487–489, 494–497, 501, 505, 506 Armed conflict Afghanistan 166, 177, 184 Colombia 411 Iraq 177, 184, 498 Israel 6, 431, 432, 442–445, 459, 460 Armed forces See domestic regulation of – Australia Australian Federal Police (AFP) 509, 510, 513 Australian Defence Force (ADF) 508– 510, 518, 519, 522,526, 534, 535 Defence civilian 518, 519, 534 Government procurement 512–513 Export control 513–517 Authorization and registration (regimes) 3, 24, 31, 67, 70, 118, 529, 566, 567, 608, 609, 614, 615 Australia 512 Baltic States 139, 142, 143, 152 Colombia 414, 425, 426, 429 Czech Republic 167, 172 France 196, 199 Israel 457 Italy 245 Russia 470, 472, 473 South Africa 489, 490–492, 501, 505 Spain 277 Sweden 299 United Kingdom 315–317 United States 338, 340– 346, 355, 360 Blackwater 11, 70 n.55, 187, 324, 341, 356–

358, 356 n.146, 364–367, 373, 377, 378, 380, 522, 537, 592, 611 n.10 British Association of Private Security Companies (BAPSC) Charter 320–321 Canada Criminal jurisdiction 389– 392, 401–404 Export controls 386–388, 409 Outsourcing policy 398, 404–408 CFC Legislation 584, 587, 588, 593–596, 606 China 12, 17, 92, 93, 287 Colombia Conflict in – 411, 427, 429 Immunity 411, 422, 423, 427–430 National regulation 416–421, 428, 429 Plan Colombia 413, 421–429 Civil defence 48, 90 Civil liability Germany 225 Italy 233, 248–252 The Netherlands 264–266 United States 362–377 Civil-military partnership 133–135 Code of conduct BAPSC 320–321 British Security Industry Association (BSIA) 322–323 CoESS and Uni-Europa 51 n.57 IPOA/ISOA 113, 120, 194 n.27, 511 Secopex 194 South Africa 501, 505 See also International Code of Conduct Combatants Definition 108, 444, 445, 533, 534, 542, 555 Command and control 87, 128, 135, 151, 294, 348, 349, 515, 533, 553 Command responsibility 150, 153, 179, 180, 262, 263, 288, 479–481 Common Foreign and Security Policy (CFSP) 3, 31–39, 50–52, 56, 59, 68–74, 82, 88, 92, 93, 98–103, 610, 612, 614, 617 Common Security and Defence Policy (CSDP) 3, 34, 35, 37, 49 n.50, 52, 72, 74, 76, 79, 85, 87, 99, 101, 103, 614, 617, 618 Contracts 12, 24, 28, 29, 45–48, 86, 91, 109,

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Index

111–113, 556, 583, 584, 589–592, 595, 596, 615, 617 Baltic States 137, 144–148 Czech Republic 174–177 France 187, 188, 193, 199, 200 Germany 116, 220, 222–225 Italy 250 Netherlands 256–260, 263–266, 270 Spain 278, 279, 285, 288 Sweden 305 United Kingdom 315, 317, 320, 326 United States 333–340, 349, 364, 370, 373, 376–379, 537, 543, 587, 600 Canada 398–400, 404, 405, 533 Colombia 412, 417, 419, 422, 424 Israel 451, 456 Russian Federation 470–472, 474, 483 Australia 508–513 Cotonou Agreement 93–97, 103 Criminal jurisdiction Double criminality 302, 303, 454 n.101, 530, 537, 538, 548–551, 555 Doctrine of ubiquity 549 Immunity 6, 180, 181, 201, 261–263, 259, 310, 313, 317, 318, 350–354, 357, 366, 401, 402, 411, 422, 423, 427–430, 444, 518–520, 532, 533, 535, 536, 560 Israel 432, 443–445, 447–449, 451, 454– 456, 459 Italy 233–243, 245, 251 Jurisdictional conflicts 548–551, 556 Principles of – 6, 119, 120, 529–542, 544– 546, 548–551, 554–557, 566 United States 350–362, 379, 380 Czech Republic 5, 108, 111, 119, 165–184, 192, 540, 552, 553, 562 Democratic control over armed forces 165, 219, 506 Development Cooperation European Union 32, 81, 92–98, 100, 103 Direct participation in hostilities 19, 84, 86, 90, 108, 116, 117, 207, 208, 268, 270, 495, 608, 609 Domestic regulation of the armed forces 86, 116, 119, 559–570, 574, 575–580 Baltic States 125–135, 141, 151–153 Canada 397–399, 404 France 212–214 Germany 218–223, 226, 230–232 Netherlands 254, 262, 267, 269 Russian Federation 465, 470–472, 480 Spain 276, 279, 282, 285, 288, 290–292 United Kingdom 312, 315 United States 342–350 Double taxation conventions 585–587, 594, 595, 602–604 Draft Convention on Private Military and Security Companies

Criminal offences 21, 22, 25, 26 Oversight Committee 21–25, 29 Prohibited activities 21,22 State responsibility 25, 26 Due diligence obligations 14, 26–30, 67 n.50, 80, 83, 100, 327, 615, 616, 618 Effective remedy 24,25, 80, 95, 96 Enlistment in armed forces Belgium 156 Canada 385, 386, 386 n.29 Czech Republic 178 Italy 243–247 South Africa 490, 498–499, 506 Spain 285 United Kingdom 312, 316 Estonia 67 n.48, 105 n.3, 108, 114, 115, 119, 125, 126, 128, 130–134, 136–153, 553, 562 European Defence Agency 34, 50, 85 n.28 European Union Case law of the European Court of Justice 32, 33, 39–42, 46, 53, 60, 61, 64–66, 72, 248–250, 610, 613, 615 Crisis management operations 4, 31, 50–52, 71–75, 81, 84–88 European Instrument for Democracy and Human Rights 93 n.67, 97 European Neighbourhood Policy 100 European Parliament 3, 62–66, 71, 75, 91, 610 Export Controls 42–45, 54–59, 76, 77, 81–84 Harmonisation measures 3, 39, 61–67, 75, 613, 614 Internal market 3, 31–34, 36–42, 45, 47, 51–53, 60–65, 68, 71, 75, 76, 609, 610, 612–614, 617 Regulatory competence 36, 37, 69 Subsidiarity and proportionality 38, 39, 45, 52, 67 n.48 Exchange of information 7, 44, 548, 584, 601–606 Extradition 155, 205 n.55, 227, 228, 303, 304, 428, 429 Firearms Export 172, 173, 255 Possession of – 162, 494 South Africa 492, 493 Training 15, 16, 31, 49, 58, 59, 70, 71, 84, 118, 254, 255, 346, 476, 521, 611, 615 Use of – by contractors 492–494 France French industry 185–196 Outsourcing Policy 212–214 Self-Regulation efforts 194, 195 Hiring state 107, 529, 615, 616, 618 Home state Canada 382–396

Index Draft Convention 26, 27, 29 EU countries as – 67, 80, 81–84 France 185–191 Montreux Document 12 United Kingdom 309–328 United States 332–347, 353, 356–358 Host state 5, 12, 15, 27–29, 95, 98, 100, 113, 114, 121, 258, 263, 270, 313, 317, 327, 401, 529–542, 547, 554–556, 560, 588 n.4, 589, 616 Colombia 411–430 Human rights Al-Skeini 312 European Convention on – 3, 80, 101, 313, 521, 561, 609 Human rights conditionality 81, 93, 94, 619 Human rights dialogue 97, 99, 100 UN Human Rights Council 4, 16–18, 81, 95, 102, 103, 157, 289, 290, 383, 608, 619 Humanitarian assistance 89–92, 103, 500, 506 Immunity Coalition Provisional Authority Order No 17 116, 120, 317, 318, 350–352, 532, 536 See criminal jurisdiction Inherently governmental functions Draft Convention on Private Military and Security Companies 18–20 United States 85, 116, 341–343, 347, 348, 376 Intelligence 1, 19, 71, 76, 86 n.34, 128, 131, 132, 149, 151–153, 160, 161, 187–194, 195 n.29, 197, 211, 240, 259, 337–341, 383, 384, 399, 400, 425, 426, 433, 470, 488, 506, 519, 531, 546, 611, 612, 611 n.12 International Code of Conduct for Private Security Providers Due diligence 14, 15 Signatories 13, 67 n.48, 195, 378, 378 n.256 Steering Committee 16, 507, 508 International crimes 153, 156, 180, 261–263, 443 n.48, 518, 541, 542, 545, 551, 552, 556, 557, 566 International Criminal Court 177, 227, 228, 261, 312–316, 423 n.30, 477, 503, 504, 545, 551 International humanitarian law Common Article I to the 1949 Geneva Conventions 83 EU position 4, 31, 48–50 International Peace Operations Association/ International Stability Operations Association (IPOA/ ISOA)

623

Blackwater’s withdrawal 323, 324 Members 510–511 Self-Regulation 113, 120, 194 n.27, 511 Iraq Immunity 318, 350–352, 366, 532, 536 Nisour Square 1, 2, 11, 323, 324, 356–358, 366, 380, 537, 611 n.10 Israel Armed conflict paradigm 432, 443 Checkpoints 433, 435, 437, 439–442, 448–451 Civilianisation 6, 432, 435–441, 459 Criminal law paradigm 432, 443 Defence export 456–459 Intifada 432–434, 442 Law on Implementation of the Interim Agreement regarding the West Bank and Gaza Strip (Adjudication Powers and other Provisions) (Legislative Amendments), 1996 448 Outsourcing policy 436–440, 446, 447 Italy Case-law on mercenarism 235–237 Licence regime for PSCs 244–247, 252 PMSC’s civil liability 248–252 Procurement 243–247 Recruitment on behalf of a PMSC 238–240 Labour law 126, 131, 142–145, 147, 152, 175, 176, 182, 196, 199, 200, 219, 226, 256, 257, 288, 289, 299–301, 419–421, 462, 464, 473, 474, 512, 592 Latvia 105 n.3, 111, 114, 116, 119, 125–131, 134–151, 541, 544 Law enforcement 47, 49, 59, 110, 338, 443, 445, 452, 460, 466, 467 Licensing Regime Italy 236, 237, 244–247, 252 South Africa 490–495 United States 347 Lithuania 105 n.3, 119, 125–127, 129–153, 541, 553 Logistics LOGCAP 112,341, 343–344, 376 Outsourcing 1, 108, 131, 161, 212, 214, 217, 222, 257, 291, 294, 336–339, 348, 384–385, 397, 425–426, 440, 496, 509–510 Mercenaries Australia 513–517, 521–526 Belgium 155–158, 164 France 187, 190–192, 194–211, 214 International Convention Against the Recruitment, Use Financing and Training of Mercenaries 149, 155, 156, 164, 178, 202, 227, 304, 383, 430, 475, 552 Italy 234–237, 251

624

Index

National legislation 149, 152, 153, 165, 178, 182, 227, 231, 234–238, 251, 260, 267, 285, 304, 326, 430, 475– 477, 531, 551–553, 557 South Africa 487, 489–500, 502–506 UN Working Group on the Use of Mercenaries 13, 16, 17, 260, 261 Military Justice Civilians 542–544, 575–580 European Convention on Human Rights 567–581 Turkey 563, 565, 566, 570, 579, 580 United Kingdom 313, 314 United States 345, 349, 359–362 Monitoring and Oversight Iraq 344 Montreux Document 4, 12, 13, 16–20, 23, 24, 26, 27, 29, 30, 83, 86, 98, 109, 117, 157, 166, 167, 183, 195, 231, 261, 289, 290, 306, 310, 311, 324, 325, 377, 378, 409, 430, 507, 508, 526, 551, 608, 611 n.12 Netherlands Dutch government position on status of PMSCs 267, 268 PMSCs and piracy at sea 268, 269 North Atlantic Treaty Organisation (NATO) 50 n.52, 134, 182, 229, 260, 290, 317, 347, 352, 385, 401 n.123, 406, 407, 532, 547, 548, 556, 578, 583, 599 Occupation (belligerent) 337, 432, 434, 442–445 OECD Guidelines for Multinational Enterprises 597, 598, 606 OECD Model Tax Convention on Income and on Capital 585, 586, 589, 590, 602–604 Outsourcing of military and security tasks France 187, 210–214 Limits 107–109 Russia 469–471 United Kingdom 108, 309–310, 328 United States 341, 342 Papua New Guinea 510, 519–526 Parliament Role of the – in international missions 128–130, 247, 252 Peace support operations 37, 50, 72, 94, 98, 293, 309, 310, 314, 423, 424, 469, 546, 547, 599 Piracy 51, 94, 99, 134, 193, 254, 268, 269, 283, 284, 287, 290, 363, 540, 541, 619 Place of Effective Management 585–588 Political dialogue 49, 81, 92–103, 610, 619 Political question doctrine 368–371, 373, 374 Positive obligations 12, 27–29, 80, 83, 95, 98, 100, 101 PRIV-WAR Recommendations 3, 4, 53 n.2,

65 n.40, 81 n.3, 85 n.27, 87, 88 n.43, 91 n.59, 95 n.78, 607–619 Public procurement and defence Ethical procurement 92, 111, 112 European Union 45–48, 145, 146, 301, 302 Recruitment 156, 176, 195, 203, 209, 218, 227, 234–240, 251, 252, 260, 261, 269, 317, 476, 489, 490, 498, 503, 506, 514, 515, 618 Russian Federation Command responsibility and PMSCs 479–481 Domestic security services 462–465 Military justice 566 Policy on PMSCs outsourcing 469–471 Position of – on the Draft Convention 12 n.7, 17 Regional Assistance Mission to the Solomon Islands (RAMSI) 510, 526 Rules of Engagement (RoE) 195, 449, 450 Sanctions PRIV-WAR Recommendations 616, 617 Russian Federation 481 United Kingdom 319, 323, 326, 327 Sandline International 310, 522–526 Security-related export controls Dual-use items 54–59 European Union 42–45 Military equipment and technology 49, 57 United States 347 Security Services Definition 170, 275–277 Domestic security services 45, 170, 218, 253–255, 462–465, 511 Self-Defence 15, 90, 115, 116, 258–260, 268–270, 294, 306, 320, 348, 400, 418, 468, 619 Self-Regulation 2, 5, 11, 16, 18, 24, 169, 170, 194, 195, 310–312, 316–325, 328, 608, 616, 617 Somalia 99, 134, 190, 218, 273, 283, 289, 290, 406 South Africa Enlistment 490, 498, 499, 506 Mercenaries 487, 489–506 National Conventional Arms Control Committee 490, 495, 498–500, 505, 506 Security Industry Regulating Authority 489, 491, 492, 501, 502, 505 Spain Arms exports 281–283 Criminal liability 284–288 Private Security 274–280 State Responsibility 21, 25, 26, 29, 112, 153, 221, 258, 378, 477 Status of Forces Agreements (SOFA) 87,

Index 401, 518, 530–538, 547–550, 554, 556, 584, 599–601, 606, 617 Sweden Armed Forces 293, 294, 297, 298, 300– 303, 304, 307 County Administrative Board 294–297, 305 Mercenaries 304 Procurement 301, 302 Security services 293, 294–297 Service export 298 Swedish parliament 306, 307 Tax issues Permanent establishment 584, 588–592, 594, 595, 598, 601, 605, 606 Residence 584–588 Transfer pricing 584, 588, 591, 595–599, 606 Torture Abu Grahib 1, 2, 19, 364, 365, 369, 373, 374, 560, 611 n.10 Training direct participation in hostilities 86 n.34 effective 16, 31, 49, 84, 89, 118, 135, 138, 143, 151, 152, 159–161, 168, 176, 195, 197, 254–256, 289, 294–298, 345–347, 378, 399, 417, 419, 420, 424, 445, 446, 464, 466, 476, 489, 494, 502, 505, 575, 579, 611–613, 615, 618 firearms 118, 492–494, 523, 524 International Convention against the recruitment, use, financing and training of mercenaries 149, 155, 156, 164, 178, 202, 227, 304, 383, 430, 475, 552 United Kingdom Government intervention 316–324 Green Paper (2002) 113, 114, 310, 316– 320, 324 Monitoring 317, 319, 320, 323, 328, 334, 344, 379, 380

625

Sanctions 319, 323, 324, 326, 327 Self-regulation 310–312, 316–325, 328 United Nations Human Rights Council 4, 16–18, 81, 95, 102, 103, 157, 289, 290, 608, 619 UN Secretary General’s Special Representative on Business and Human Rights 13, 14, 325 UN Security Council 221, 313, 318, 388, 401, 458, 459 United States Alien Tort Statute 363–368, 521 Government spending 335, 336 Inherent governmental functions 341– 343, 347, 348, 376, 380 Memorandum of Agreement (MOA) 344, 345 Memorandum of Understanding (MOU) 345, 346 Military Extraterratorial Jurisdiction Act 345, 346, 355–358, 536, 537, 555 Synchronized Predeployment and Operational Tracker (SPOT) 345, 349, 350 Uniform Code of Military Justice (UCMJ) 345, 346, 349, 359–362, 543, 555 Universal Jurisdiction 119, 149, 153, 179, 180, 269, 287, 476, 477, 504, 517, 540–542, 545, 551, 555, 556 Use of Force 1, 15, 19, 20, 86, 105, 109, 111, 112, 118, 165, 184, 202, 227, 233, 234, 253, 256–258, 267, 269, 270, 306, 348, 378, 400, 401, 414, 416, 421, 429, 430, 444 n.51, 447, 447 n.72, 450, 471, 569 n.61 Victims Reparations 21, 22–26, 29, 30, 119, 225, 229, 265, 325, 327, 367, 421, 422, 484, 616, 618 Children 15, 94, 97, 357, 358, 537 Women Violence against 15, 94, 97, 356, 357 in private security companies 441