Passing the Buck: State Responsibility for Private Military Companies

Posted: 20 Jan 2009

See all articles by Carsten Hoppe

Carsten Hoppe

European University Institute

Multiple version iconThere are 2 versions of this paper

Date Written: January 1, 2009

Abstract

States hire private military or security companies [PMSCs/contractors] in armed conflict and occupation to fulfil tasks formerly exclusively handled by soldiers, including combat, guarding and protection, and detention and interrogation. PMSC personnel, like soldiers, can and do violate or act incompatibly with International Humanitarian Law and Human Rights Law. Relying on the International Law Commission's Articles on State Responsibility, the article compares the responsibility of states for such conduct of their soldiers with that which states incur with respect to the conduct of contractors they hire. It reveals a regulatory gap which states seeking to reduce their exposure to international responsibility can exploit. Positive obligations of states under International Humanitarian Law narrow this gap to some degree. An analysis of the duty to prevent demonstrates that the potential of positive Human Rights Law obligations to bridge the gap - although important - remains limited by their due diligence nature, and problems of extraterritorial applicability. It is then argued that the conduct of certain contractors exercising coercive functions can be attributed to the hiring state as that of 'persons forming part of its armed forces' in the sense of the customary provision enshrined in Article 3 of Hague Convention IV of 1907 and Article 91 of Additional Protocol I. Where this is the case, the state will be responsible for their conduct as it would be for that of its soldiers, which fully eliminates the regulatory gap.

Keywords: Private Military Companies, Private Security Companies, PMC, PMCs, PSC, PSCs, PMSCs, Mercenaries, State Responsibility, International Humanitarian Law, Human Rights, Positive Obligations, Blackwater

Suggested Citation

Hoppe, Carsten, Passing the Buck: State Responsibility for Private Military Companies (January 1, 2009). European Journal of International Law, Vol. 19, pp. 989-1014, 2008. Available at SSRN: https://ssrn.com/abstract=1326579

Carsten Hoppe (Contact Author)

European University Institute ( email )

Villa Schifanoia
133 via Bocaccio
Firenze (Florence), Tuscany 50014
Italy

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