The following piece was selected as one of two winners of the Harvard Human Rights Journal’s Winter 2021 Essay Contest. The contest, Beyond the Headlines: Underrepresented Topics in Human Rights, sought to share the work of Harvard University students with a broader audience and shed light on important issues that popular media may overlook.
When the Lines between the Public and Private Sectors Blur, Where do Victims Turn for Justice?
Alev Erhan[*]
The end of the Cold War marked an end to major inter-state conflict of the sort that international law was designed to prevent. What would emerge in the decades that followed, particularly in the post-9/11 era of global terrorism, has been the proliferation of diffused and lower level intra-state conflict. These new conflict dynamics typically involve non-state actors which do not have the training or resources to be a market, or a target, for large and sophisticated military equipment. Thus, the primary function of what Dwight Eisenhower famously coined as the “military-industrial complex” has evolved to provide states with the means to respond to a new environment of ongoing risk which requires enduring security measures.
The so-called “security-industrial complex” that emerged has come to play a wide variety of roles in times of peace as well as war. As one part of this industry, Private Military and Security Companies (“PMSCs”) are widely enlisted to support what would traditionally be understood as state services. These include the sustained presence of armed forces in weak governance zones, maintenance and operation of weapons systems, and the construction and maintenance of what is now seventy partition walls across the world—including the southern border of the United States. This reliance on PMSCs has also extended into domestic law enforcement services such as prisoner detention and the training of local forces.
The monopoly of the use of force reserved for states has now been delegated to such an extent that it eludes legal and political accountability mechanisms. Alarm about the extent to which these personnel may act with impunity escalated after a series of high-profile incidents. In April 2004, shocking photos were released depicting Iraqi prisoners in Abu Ghraib who had been allegedly abused by U.S. military personnel and alongside contracted private security personnel.[1] Even greater public uproar followed an incident in 2007 in which Blackwater security contractors employed by the U.S. Department of State fired at Iraqi civilians without provocation, resulting in seventeen deaths.[2] Regardless, demand for PMSC services has only increased.
Violations perpetrated by this industry require distinct attention because of the industry’s unique relationship with states as both regulators and consumers, and its special importance to international law as a mechanism originally conceived to promote peace and security. The PMSC industry thus presents a microcosm, and a perfect starting point, to bring to action the broader debate surrounding whether international law should approach corporate accountability through strengthening state responsibility or through directly imposing international obligations onto private actors.
The Accountability Gap
Initial approaches to regulating PMSCs have largely relied on the belief that existing law already governs violations by such actors. This has manifested in two main approaches. The first has been efforts to evolve the public international law principle of state responsibility to hold states liable for the actions of contracted parties. The other has been a series of efforts to create voluntary international agreements which articulate applicable human rights obligations and seek to promote adherence through coordination among all relevant stakeholders.
The principle of state responsibility is central to the legal regime of human rights and has been repeatedly interpreted to recognize that a state may act through a variety of actors in breaching its international obligations. “Contracting states” that hire PMSCs should, theoretically, be responsible for violations committed by persons or entities “empowered to exercise elements of government authority” or who’s actions the state “acknowledges and adopts as its own conduct.”[3] However, as Steven Ratnor writes, “the critical issue then becomes determining the sort of ties to the state that are relevant for deriving corporate duties.”[4]
A high bar is set for determining the degree of “effective control” that a contracting government must have over actors in order to be responsible for their actions.[5] Ratnor explains that “…as a practical matter, such a relationship probably characterizes a small category of corporate activity, either because governments typically do not make such bald requests or because corporations do not comply with them.”[6] Some authors have argued that Common Article 1 of the Geneva Conventions, which requires states to “ensure respect” for international humanitarian law, creates a broadly applicable obligation for states to take certain active steps to promote PMSC compliance. This argument has thus far gained limited traction.[7]
Another challenge for enforcement is determining which state should be responsible for regulating the conduct of PMSCs. “Territorial states” in which violating activities take place may be liable for failure to exercise due diligence in preventing the activity. However, in many situations—such as one of occupation or civil conflict— these states may not have the means to effectively fulfill this duty.[8] On the other hand, “home states” in which the companies are incorporated are even harder to hold accountable because—unless the home state is also the contracting state—they do not fall within the general rules of state responsibility. There is also little incentive to implement such regulations because the economies of these countries benefit from the PMSC industry through related direct investment, employment, and tax revenues. Some home states have opted for unilateral extraterritorial regulation, although this approach is piecemeal and the opportunity for companies to forum shop further disincentivizes states from establishing effective regimes.[9] This lack of accountability and incentive to develop and enforce regulations gives rise to a major gap in the law which presents opportunities for impunity on behalf of contracted PMSCs as well as the client states that hire them.[10]
Even when a contracting, territorial, or home state is identified as having been accountable for violations through attribution or failure to meet their duty to prevent abuses on controlled territory, there is a significant challenge for enforcement of the norms. Such wrongful acts would have to be remedied between states and given the lack of a supervening authority in international law, this process becomes a highly politicized diplomatic matter. Where the International Court of Justice (“ICJ”) or the International Criminal Court (“ICC”) may be appropriate forums, many cases are not able to move forward due to logistical problems such as whether the involved state(s) have submitted to the jurisdiction of the court.[11]
Soft-Law Alternatives
Though not legally binding, there have been several soft-law attempts to impose human rights obligations on multinational organizations providing security services. In 2003, the UN Sub-Committee on the Promotion and Protection of Human Rights adopted a resolution including guidance for PMSCs with regards to their obligations. However, as corporations are limited subjects of international law and do not have binding obligations, such instruments at best indicate willpower to identify the responsibilities of corporations.[12]
The largest initiative launched to bridge these accountability gaps has been the Montreux Document. This was an agreement ratified in 2008 which provides contracting, home, and territorial states with a restatement of their international legal obligations and a series of good practices to use in interacting with PMSCs in war zones.[13] While the document is innovative in affirming that states do not void their obligations when they contract services to private forces, it is not binding, does not create any further legal obligations, and primarily relates to humanitarian law. Furthermore, the language of the Document indicates that international law does not automatically apply to PMSCs but rather is only relevant where imposed upon them by applicable national law.
As a complement to the Montreux Document, there has also been the development of the multi-stakeholder International Code of Conduct for Private Security Service Providers (“ICoC”), which lays out the responsibilities of PMSCs to respect human rights and comply with humanitarian law. After years of negotiations between the three key groups of stakeholders—companies, governments, and civil society—an independent oversight mechanism was established in 2013.[14] Its main tasks include (a) the certification of companies under the code, attesting that the company’s systems meet the relevant principles and standards in the Code, (b) human-rights-oriented monitoring of the company and its security operations, and (c) support for member companies in addressing claims alleging violations of the Code by establishing grievance procedures that offer remedies.[15] However, once again the system is limited by a lack of broad enforcement mechanisms and relies on the willingness of states to enact domestic legislation which will provide localized avenues for enforcement.[16]
A Starting Point for Corporate Liability
The unique relationship between PMSCs and states presents challenges to human rights enforcement as explored above. However, this blurred line between state and private use of force also serves to undermine the legal fiction of a state-centric international legal system and therefore presents a unique sectoral opportunity for the evolution of international law to extend its reach into the private sector. As Benjamin Perrin writes, the accountability gap “indicates inherent deficiencies in the applicability of international criminal law, international human rights law, and ordinary national criminal jurisdiction over allegations of misconduct by PMSC employees” such that “it is the applicability of the legal norms themselves that is the threshold problem for achieving PMSC accountability.”[17] For the project of imagining a legal regime in which corporate actors may be held accountable for human rights violations, PMSCs may be a critical place to start.
[*] Harvard Law School, JD ’21.
[1] “CACI, a company that specializes in information technologies and network applications for ‘defense, intelligence and e-government’ purposes, was contracted to provide interrogators for Abu Ghraib. Titan, a company that delivers information and communication services to the U.S. armed forces, was assigned to provide translation services and interpreters to the same facility.” Antenor Hallo de Wolf, Modern Condottieri in Iraq: Privatizing War from the Perspective of International and Human Rights Law, 13 Ind. J. Global Legal Stud., 333 (2006).
[2] Matt Apuzzo, Blackwater Guards Found Guilty in 2007 Iraq Killings, New York Times, (Oct. 22, 2014).
[3] Benjamin Perrin, Mind the gap: Lacunae in the International Legal Framework Governing Private Military and Security Companies, 31 Crim. Just. Ethics, 220 (2012).
[4] Steven Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale L.J. 111, 443 (2001).
[5] Although a few interpretations of the threshold for control have been established in international courts, it is generally understood that the strict standard set forth in the International Court of Justice decision in the Nicaragua case is most broadly favored. See id. at 499.
[6] See id. at 500.
[7] Hannah Tonkin, Common Article 1: A Minimum Yardstick for Regulating Private Military and Security Companies, 22 Leiden J. Int’l L., 779 (2009); “Unfortunately, the abstract and unspecified nature of the ‘ensure respect’ obligation makes it implausible to read into the obligation more than a prohibition against states to condone, counsel, or assist in any way in the violation of IHL by its own organs, nationals, or PMSCs incorporated within its borders.” Perrin, supra note 3 at 219.
[8] In many of the weak governance zones in which PMSCs operate, such as Iraq following the U.S. invasion or Columbia where the U.S. is engaged in a “War on Drugs,” the rule of law in the country is weak with existing laws being unevenly and inconsistently applied. Antoine Perret, Privatization of the War on Drugs in Mexico and Columbia, Interdisc. J. Hum. Rts. L. 7, 45 (2012).
[9] Id.
[10] Perrin, supra note 3 at 218.
[11] Id. at 217.
[12] Hallo de Wolf, supra note 1 at 325.
[13] James Cockayne, Regulating Private Military and Security Companies: The Content, Negotiation, Weaknesses and Promise of the Montreux Document, 13 J. Conflict & Sec. L., 401, 428 (2008).
[14] Nelleke Van Amstel and Tilman Rodenhäuser, The Montreux Documents and the International Code of Conduct: Understanding the Relationship between International Initiatives to Regulate the Global Private Security Industry, DCAF (Feb. 19, 2016).
[15] Id.
[16] Reema Shah, Beating Blackwater: Using Domestic Legislation to Enforce the International Code of Conduct for Private Military Companies, 123 Yale L.J. 2559, 2573 (2014).
[17] Perrin, supra note 3 at 229.