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Commentary on Part I 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

Published online by Cambridge University Press:  15 June 2015

Marie-Louise Tougas
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Abstract

The Montreux Document on Private Military and Security Companies (Montreux Document) was adopted in 2008 by seventeen States to reaffirm and, as far as was necessary, clarify the existing obligations of States and other actors under international law, in particular under international humanitarian law (IHL) and international human rights law (IHRL). It also aimed at identifying good practices and regulatory options to assist States in promoting respect for IHL and IHRL by private military and security companies (PMSCs). Today, fifty-one States and three international organizations have endorsed the Montreux Document. It contains twenty-seven “Statements” – sections recalling the main international legal obligations of States in regard to the operations of PMSCs during armed conflicts. Each statement is the reaffirmation of a general rule of IHL, IHRL or State responsibility formulated in a way that clarifies its applicability to PMSC operations. This article aims to detail the basis of each legal obligation mentioned in the first part of the Montreux Document (Part I). The article follows the structure of Part I, in order to better facilitate its comprehension. The second part of the Montreux Document, relating to good practices, is not covered in this article.

Keywords

Montreux Documentinternational legal obligationsIHLIHRLprivate military and security companiesprivate contractorsarmed conflictState responsibility
Type
Reports and Documents
Information
International Review of the Red Cross , Volume 96 , Issue 893: Scope of the law in armed conflict , March 2014 , pp. 305 - 358
Copyright
Copyright © icrc 2015 

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References

1 Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict, Montreux, 17 September 2008 (Montreux Document), available in Arabic, Chinese, English, Finnish, French, Spanish and Russian at: www.eda.admin.ch/psc (all internet references were accessed in May 2014). The Montreux Document brochure is available in English, French, Spanish and Russian at: www.icrc.org/eng/resources/documents/publication/p0996.htm. On the process that led to the adoption of the Montreux Document, see Cockayne, James, “Regulating Private Military and Security Companies: The Content, Negotiation, Weaknesses and Promise of the Montreux Document”, Journal of Conflict and Security Law, Vol. 13, No. 3, 2008CrossRefGoogle Scholar; Balmond, Louis, “Observations sur le Document de Montreux relatif aux obligations juridiques internationales pertinentes et aux bonnes pratiques pour les États concernant les activités des sociétés militaires privées”, Revue Générale de Droit International Public, Vol. 113, No. 1, 2009Google Scholar.

2 Swiss Federal Department of Foreign Affairs, Participating States of the Montreux Document, 11 November 2014, available at: www.eda.admin.ch/eda/en/home/topics/intla/humlaw/pse/parsta.html.

3 The jus ad bellum relates to the legality of the use of force by States under international law and the jus in bello to the humanitarian rules that must be respected in warfare. On this issue, see Sassòli, Marco, Bouvier, Antoine and Quintin, Anne, How Does Law Protect in War?, Vol. 1, 3rd ed., ICRC, Geneva, 2011Google Scholar, p. 114.

4 Organization of African Unity (OAU) Convention for the Elimination of Mercenaries in Africa, 1972, OAU Doc. CM/433/Rev.L (entered into force 1977), Annex 1; International Convention against the Recruitment, Use, Financing and Training of Mercenaries, 4 December 1989, 2163 UNTS 75 (entered into force 20 October 2001) (UN Mercenary Convention).

5 For legal definitions of mercenary under international law, see Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (AP I), Art. 47; OAU Convention for the Elimination of Mercenaries in Africa, above note 4, Art. 1; UN Mercenary Convention, above note 4, Art. 1.

6 See for instance, International Court of Justice (ICJ), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 106:

More generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.

See also ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 25; and ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, para. 216.

7 See, e.g., International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Art. 4:

  1. 1)

    1) In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

  2. 2)

    2) No derogation from articles 6 [right to life], 7 [prohibition of torture and of cruel, inhuman or degrading treatments], 8 [paragraphs I and 2] [prohibition of slavery], 11 [prohibition of imprisonment for failure to fulfil a contractual obligation], 15 [non retroactivity of criminal law], 16 [right to legal personality] and 18 [right to freedom of thought, conscience and religion] may be made under this provision.

8 30th International Conference of the Red Cross and Red Crescent Movement, Reaffirmation and Implementation of International Humanitarian Law: Preserving Human Life and Dignity in Armed Conflict, 30 November 2007, Resolution No. 3, available at: www.icrc.org/eng/resources/documents/resolution/30-international-conference-resolution-3-2007.htm.

9 Indeed, the high seas are not a zone in which States are exempted from international legal obligations. See San Remo Manual on International Law Applicable to Armed Conflict at Sea, 12 June 1994, Art. 10(b). For IHRL, see, for instance, European Court of Human Rights (ECtHR), Hirsi Jamaa and Others v. Italy, Application No. 27765/09, Judgment (Grand Chamber), 23 February 2012, paras 79 ff.

10 See ICJ, Legal Consequences of the Construction of a Wall, above note 6, para. 109. Some States, in particular the United States and Israel, reject the extraterritorial application of certain human rights treaties, especially the ICCPR, via a narrow interpretation of “jurisdiction” as concurrent with “territory”. However, according to the UN Human Rights Committee, this treaty “also applies to those within the power or effective control of the forces of a State Party acting outside its territory”. Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13, 2004, para 10.

11 However, it is interesting to point out that international law prohibits the use of privateers. See Declaration Respecting Maritime Law, Paris, 16 April 1856 (entered into force 16 April 1856), Art. 1: “Privateering is, and remains, abolished.” This prohibition is reflected in the Hague Convention (VII) relating to the Conversion of Merchant Ships into War-Ships, 18 October 1907 (entered into force 26 January 1910), Art. 1: “A merchant ship converted into a war-ship cannot have the rights and duties accruing to such vessels unless it is placed under the direct authority, immediate control, and responsibility of the Power whose flag it flies.”

12 Geneva Convention (III) relative to the Treatment of Prisoners of War (GC III), 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950), Art. 12. The responsibility is the same in respect to any protected persons in the hand of a party to the conflict, such as civilian internees during international armed conflicts. See Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (GC IV), 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950), Art. 29. However, activities listed in Statement 2 below cannot be contracted to non-State agents.

13 See GC IV, Art. 23; AP I, Arts 70(2), 71(3); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (AP II), Art. 18(2); Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005CrossRefGoogle Scholar (ICRC Customary Law Study), Rules 55 and 56.

14 For instance, the Occupying Power has the obligation to ensure the general welfare of the occupied population. 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 (entered into force 26 January 1910), Art. 43; the obligation to facilitate, in cooperation with national and local authorities, the proper working of all institutions devoted to the care and education of children (GC IV, Art. 50); the duty to ensure, to the fullest extent of the means available to it, food and medical supplies the population (GC IV, Art. 55), as well as clothing, bedding, means of shelter, and other supplies essential to the survival of the civilian population (AP I, Art. 69); and, in cooperation with national and local authorities, to ensure the maintenance of health and medical establishments and services (GC IV, Art. 56). It also has the obligation to ensure that, when the needs of the civilian population are not met, relief actions are undertaken and relevant IHL dispositions implemented without delay (see also GC IV, Arts 59–62, 108–111; and AP I, Arts 69 and 71).

15 ICJ, Democratic Republic of the Congo v. Uganda, above note 6, para. 178.

16 See ibid., para. 179

17 AP I, Arts 86 and 87.

18 See, e.g., General Comment No. 31, above note 10, para. 8:

the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties' permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.

19 See Intervention by Mr Pilloud from the International Committee of the Red Cross in Diplomatic Conference of Geneva of 1949, Final Record, Vol. 3, 9th Meeting, 25 May 1949, p. 39; ICRC, Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, 2nd ed., Geneva, April 1958, p. 129; Jean Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 3: Geneva Convention relative to the Treatment of Prisoners of War, ICRC, Geneva, 1960, Commentary on Art. 1, p. 18; Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987Google Scholar, Art. 91, p. 1057.

20 Ibid., Art. 91, p. 1058.

21 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986, para. 220.

22 See ICRC Customary Law Study, above note 13, Rule 139.

23 See Ibid., Rule 144.

24 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, Yearbook of the International Law Commission, Vol. 2, No. 2, 2001 (ASR Draft Articles), Commentary to Art. 14, para. 14.

25 See Montreux Document, above note 1, Part 2, Good Practices 1–23.

26 J. Pictet, above note 19, Commentary on Art. 1, p. 16.

27 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 (GC I), 75 UNTS 31 (entered into force 21 October 1950), Art. 47; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 August 1949 (GC II), 75 UNTS 85 (entered into force 21 October 1950), Art. 48; GC III, Art. 127; GC IV, Art. 144; AP I, Art. 83; AP II, Art. 19.

28 See GC I, Art. 144; ICRC Customary Law Study, above note 13, Rule 143.

29 Which established, inter alia, that “[p]rotected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.”

30 J. Pictet, above note 19, Commentary on Art. 27, p. 204.

31 GC III, Art. 39; GC IV, Arts 99, 144(2); AP I, Arts 82, 83(2), 87.

32 AP I, Art. 80(2).

33 See, by analogy, ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, para. 430.

34 In particular, Contracting States should take into account the potential involvement of private contractors in direct participation in hostilities when determining which services may or may not be contracted out to PMSCs. see Montreux Document, above note 1, Part 2, Good Practice 1.

35 See e.g., Ibid., Part 2, Good Practices 10, 11, 12, 14 and 15.

36 ICRC Customary Law Study, above note 13, Rule 144. See also ICJ, Nicaragua v. United States of America, above note 21, para. 220, finding that the United States was “under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3 common to the four 1949 Geneva Conventions”.

37 GC I, 49(3); GC II, 50(3); GC III, 129(3); GC IV, 146(3).

38 See, e.g., ICCPR, Art. 2(1); African Charter on Human and Peoples' Rights (ACHPR), 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982) (entered into force 21 October 1986), Art. 1; American Convention on Human Rights (ACHR), 22 November 1969, OAS Treaty Series No. 36, 1144 UNTS 123 (entered into force 18 July 1978), Art. 1; Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953), as amended, Art. 1. On this issue, see also Hakimi, Monica, “State Bystander Responsibility”, European Journal of International Law, Vol. 21, No. 2, 2010, pp. 344–345CrossRefGoogle Scholar.

39 See, e.g., Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), 18 December 1979, UN Doc. A/34/180 (entered into force 3 September 1981), Art. 2(e); International Convention on the Elimination of All Forms of Racial Discrimination (CERD), 7 March 1966, 66 UNTS 195 (entered into force 4 January 1969), Arts 2(d), 5(b); Convention on the Rights of the Child (CRC), 20 November 1989, UN Doc. A/44/49 (entered into force 2 September 1990), Art. 19(1); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 18 December 1990, UN Doc. A/45/49 (entered into force 1 July 2003), Art. 16(2); Convention on the Rights of Persons with Disabilities, 13 December 2006, 46 ILM (2007) 443 (entered into force 3 May 2008), Arts 4(e), 16.

40 See, for instance, General Comment No. 31, above note 10, para. 8:

However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties' permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.

See also ECtHR, X and Y v. the Netherlands, Series A, No. 91, Judgment, 26 March 1985, para. 27; Inter-American Court of Human Rights (IACtHR), Velázquez Rodríguez v. Honduras, Series C, No. 4, Judgment, 29 July 1988, para. 74.

41 See, e.g., Ibid., para.172.

42 See, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (CAT), Art. 10: “Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment” (emphasis added). See also Human Rights Committee, “Consideration of Report Submitted by States Parties under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee: United States of America”, UN Doc. CCPR/C/USA/CO/3/Rev.1, 18 December 2006, para. 14.

43 ICCPR, Art. 6(1); ECHR, Art. 2(1); ACHR, Art. 4(1).

44 See Human Rights Committee, General Comment No. 6 on the Right to Life (Article 6), 30 April 1982, UN Doc. HRI/GEN/1/Rev.7, para. 3; General Comment No. 31, above note 10, para. 8; See also ECtHR, Osman v. the United Kingdom, Judgment, Reports of Judgments and Decisions 1998-VIII, No. 95, 28 October 1998, para. 115 ff.

45 See, e.g., General Comment No. 31, above note 10, para. 8; Committee against Torture, General Comment No. 2, Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2/CRP.1/Rev.4, 24 January 2008, para. 18; ECtHR, A. v. the United Kingdom, Judgment, Reports of Judgments and Decisions 1998-VI, No. 90, 23 September 1998, paras 20–24.

46 See IACtHR, Velásquez-Rodríguez v. Honduras, above note 40, para. 176:

The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.

The Human Rights Committee, in its Concluding Observations on the Report submitted by Lesotho under Art. 40 of the ICCPR, was “concerned that no action has so far been taken to prosecute law enforcement officers and members of the private security agency responsible for the killings in Butha-Buthe in 1995. The Committee recommends to the State party to take the necessary action against those responsible.” UN Doc. CCPR/C/79/Add.106, 8 April 1999, para. 19. Although pertaining to inter-State arbitration, in the case of Laura M. B. Janes and al. (USA) v. United Mexican States, General Claims Commission, 16 November 1925, Reports of International Arbitral Awards, Vol. IV, p. 87, the indication of the Commission on the notion of due diligence may be of interest:

Nobody contends either that the Mexican Government might have prevented the murder of Janes, or that it acted in any other form of connivance with the murderer. The international delinquency in this case is one of its own specific type, separate from the private delinquency of the culprit. The culprit is liable for having killed or murdered an American national; the Government is liable for not having measured up to its duty of diligently prosecuting and properly punishing the offender.

47 ICCPR, Art. 2(2).

48 See ECtHR, X and Y v. The Netherlands, above note 40, para 40; ECtHR, Kudla v. Poland, Judgment, 26 October 2000, paras 158–160. On the obligation to implement human rights obligations through national legislation, see for instance IACtHR, The Last Temptation of Christ v. Chile, Series C, No. 73, Judgment, 5 February 2001, para. 88; IACtHR, Hilaire, Constantine and Benjamin et al v. Trinidad and Tobago, Series C, No. 94, Judgment, 21 June 2002, para. 212; IACtHR, Trujillo Oroza v. Bolivia (Reparations), Series C, No. 92, Judgment, 27 February 2002, para. 122; Human Rights Committee, Suárez de Guerrero v. Colombia, UN Doc. CCPR/C/15/D/45/1979, Views, 30 March 1982, para. 15; African Commission on Human and People's Rights (AComHPR), Avocats sans Frontières (on behalf of Gaëtan Bwampamye) v. Burundi, Communication No. 231/99, 2000; AComHPR, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v. Nigeria, Communication No. 211/98, 2001.

49 ICCPR, Art. 6(1); ECHR, Art. 2(1); ACHR, Art. 4(1). See also Human Rights Committee, General Comment No. 6, above note 44.

50 Inter-American Commission on Human Rights (IAComHR), Annual Report on Human Rights 1996, Chapter V, OEA/Ser.L/V/II.95, Doc. 7 rev., 14 March 1997, para. 71. In its recommendations to member States, the Commission adds:

The Commission is particularly concerned with the proliferation of private sector security personnel, who may be directed by employers to use measures of force, and who may by utilized without sufficient public sector monitoring or regulation. The Commission consequently recommends that member states review the norms applicable to the provision of private sector security services, and the systems to monitor such activity to ascertain where there may be lacunae in coverage and fill them, and take steps to ensure that the provision of such services, to the extent they may be permitted by law, neither conflicts with public sector duties nor infringes upon individual liberties.

Ibid., Chapter VII, Recommendation 2.

51 ICCPR, Art. 2(3); ECHR, Art. 13; ACHR, 25; CERD, Art. 6; CAT, Art. 13; CRC, Art. 39; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN GA Res. A/RES/60/147, 16 December 2005 (Basic Principles on Reparation); see also AComHPR, Principles on Remedy and Fair Trial in Africa of the Commission on Human and People's Rights, DOC/OS(XXX)247, 2003. The Human Rights Committee in its General Comment No. 29 on derogations during a state of emergency specified that even during a state of emergency, “the State party must comply with the fundamental obligation, under article 2, paragraph 3, of the Covenant to provide a remedy that is effective”. See General Comment No. 29 on Derogations during a State of Emergency (Article 4), UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 14.

52 Human Rights Committee, General Comment No. 31, above note 10, para. 15. See also Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework”, UN Doc. A/HRC/17/31, 21 March 2011 (UN Guiding Principles), Principle 25, which states: “As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy.”

53 See ECtHR, Osman v. the United Kingdom, above note 44, para. 147. In the ECHR, this claim can arise out of the right to a fair hearing enshrined in Art. 6 or the right to remedy in Art. 13.

54 For an exhaustive overview of international law norms accepted by the jurisprudence, see Koebele, Michael, Corporate Responsibility under the Alien Tort Statute: Enforcement of International Law through US Torts Law, Leiden, Martinus Nijhoff, 2009CrossRefGoogle Scholar; Beisinghoff, Neils, Corporations and Human Rights: An Analysis of ATCA Litigation against Corporations, Peter Lang, Frankfurt, 2008Google Scholar. See also Ryngaert, Cedric, “Litigating Abuses Committed by Private Military Companies”, Еuropean Journal of International Law, Vol. 19, No. 5, 2008, p. 1036Google Scholar.

55 The ATCA was adopted in 1789 and reads as follows: “The 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”. 28 USC § 1350. According to the jurisprudence, the “law of nations” to which the ATCA is referring must be interpreted as it has evolved and exists today and not as it was at the time of its enactment. See, for instance, Filártiga v. Peña-Irala, 630 F 2d 876 (2nd Cir. 1980), p. 881.

56 See, e.g., Kadic v. Karadzic, 70 F3d 232 (2nd Cir. 1996); Presbyterian Church of Sudan v. Talisman, 582 F 3d 244 (2nd Cir. 2009).

57 See, for instance, Ibid.; Wiwa v. Royal Dutch Petroleum Co., 226 F3d 88 (2nd Cir. 2000); Presbyterian Church of Sudan v. Talisman, above note 56; Sarei v. Rio Tinto, 221 F Supp 2d 1116 (C.D. Cal. 2002); Bowoto v. Chevron Corporation, LEXIS 59374 (not reported in F Supp) (N.D. Cal. 2007).

58 See, for instance, Kadic v. Karadzic, above note 56; Estate of Valmore Lacarno Rodriguez v. Drummond Co. Inc., 256 F. Supp. 2d 1250 (N.D. Ala. 2003); Presbyterian Church of Sudan v. Talisman, above note 56.

59 See for instance, Filártiga v. Peña-Irala, above note 55; Doe I v. Unocal Corp., 395 F. 3d 932 (9th Cir. 2002); Wiwa v. Royal Dutch Petroleum Co., above note 57.

60 See, for instance, Bowoto v. Chevron Texaco Corp., 312 F. Supp. 2d 1229 (N.D. Cal. 2004).

61 See Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987). On short-term illegal detention not having been considered as reaching the necessary threshold, see Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004), at 2765–2768.

62 See, for instance, Doe I v. Unocal Corp., above note 59.

63 See Ilham Nassir Ibrahim v. Titan et al., 391 F. Supp. 2d 10 (D.D.C. 2005). See also Saleh v. Titan Corp., 436 F. Supp. 2d 55, (D.D.C. 2006); In re: Xe Services Alien Tort Litigation, 665 F.Supp.2d 569 (E.D. Va. 2009); Al Quraishi v. Nakhla et al., 728 F. Supp. 2d 702 (D. Md. 2010). Although liability of individuals, including personnel of PMSCs, is well established under this statute, it should be noted that US federal courts are divided on the question of whether a corporation can be held liable under the ATCA. See Kiobel v. Royal Dutch Petroleum Co., 642 F.3d 268 (2nd Cir. 2011); John Doe VIII et al. v. Exxon Mobil Corp. et al., 654 F.3d 11 (D.C. Cir. 2011), vacated on other grounds.

64 Kiobel v. Royal Dutch Petroleum Co., 621 F. 3d 111 (2nd Cir. 2010), p. 1669 (reference omitted), affirmed 133 S. Ct. 1659 (2013).

65 On the possibility of bringing claims for IHRL or IHL violations against business entities in various countries, see Stephens, Beth, “Translating Filartiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations”, Yale Journal of International Law, Vol. 27, No. 1, 2002, pp. 1–57Google Scholar, especially pp. 17–34; Enneking, L. F. H., “Crossing the Atlantic? The Political and Legal Feasibility of European Foreign Direct Liability Cases”, George Washington International Law Review, Vol. 40, No. 4, 2009, pp. 903–938Google Scholar.

66 This is the case, for instance, in the Canadian province of Quebec, which applies civil law in the matter. See Superior Court of Quebec, Bil'in (Village Council) et al. v. Green Park International Inc. et al., No. 500-17-044030-081, 18 September 2009, at 37.

67 Basic Principles on Reparation, above note 51.

68 Ibid., at I.(2)(b) and (c). See also Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power, UNGA Res. A/RES/40/34, 29 November 1985.

69 Basic Principles on Reparation, above note 51, Annex, Principle 12(a).

70 Ibid., Principles 15, 16. See also Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power, above note 68, Principle 12.

71 Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power, above note 68, Principle 14.

72 See the UN Guiding Principles, above note 52, and their Addendum, “Piloting Principles for Effective Company/Stakeholder Grievance Mechanisms: A Report of Lessons Learned”.

73 See International Code of Conduct for Private Security Service Providers (ICoC), 9 November 2010, Arts 66, 67, 68, available at: www.icoc-psp.org.

74 International Code of Conduct for Private Security Service Providers Association, available at: www.icoc-psp.org/uploads/ICoC_Articles_of_Association.pdf.

75 See, e.g., ICCPR, Art. 2; ECHR, Art. 1; ACHR, Art. 1 (this article does not mention territorial limitation, but rather stipulates that States have the obligation to respect and ensure the free and full exercise of rights and freedoms provided by the convention for “all persons subject to their jurisdiction”).

76 See General Comment No 31, above note 10, para. 10; ECtHR, Loizidou v. Turkey, Series A, Vol. 310, Judgment (Preliminary Objections), 23 March 1995, para. 62; ECtHR, Loizidou v. Turkey, Judgment, Reports of Judgments and Decisions 1996-VI, 18 December 1996, para. 56; ECtHR, Cyprus v. Turkey, Judgment, Reports of Judgments and Decisions 2001-IV, 10 May 2001, para. 77; IAComHR, Coard v. the United States, Case 10.951, Report No. 109/99, 29 September 1999, para. 37.

77 For instance, the ICJ states in its Advisory Opinion on the Legal Consequences of the Construction of a Wall, above note 6, para. 109:

The Court would observe that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natural that, even when such is the case, States parties to the Covenant should be bound to comply with its provisions. The constant practice of the Human Rights Committee is consistent with this. Thus the Committee has found the Covenant applicable where the State exercises its jurisdiction on foreign territory.

78 See, e.g., ECtHR, Al-Saadoon and Mufdhi v. United Kingdom, Appl. No. 61498/08, Decision on Admissibility, 30 June 2009; ECtHR, Öcalan v. Turkey, No. 46221/99, Judgment (Grand Chamber), 12 May 2005, para. 91; ECtHR, Issa and Others v.Turkey, No. 31821/96, Judgment, 16 November 2004; ECtHR, Cyprus v. Turkey, above note 76, Loizidou v. Turkey, 1995, above note 76, and Loizidou v. Turkey, 1996, above note 76; ECtHR, Al-Skeini and others v. United Kingdom, No. 55721/07, Judgment, 7 July 2011; ECtHR, Al-Jedda v. United Kingdom, No. 27021/08, Judgment, 7 July 2011.

79 See Montreux Document, above note 1, Part 2, Good Practice 22.

80 GC I, Art. 49; GC II, Art. 50; GC III, Art. 129; GC IV, Art. 146; AP I, Arts 86 and 88.

81 From the wording of the grave breaches provisions, it is not entirely clear whether “to search for” means that all States have the obligation to search for alleged perpetrators of grave breaches everywhere in the world. While the wording seems to suggest as such (especially as opposed to the wording in some human rights treaties, such as the CAT, Art. 5), there is disagreement on the interpretation. The prevailing view is that the obligation to search for alleged perpetrators is limited to persons within the territory of the State.

82 See an overview of sixteen countries in Anita Ramasastry and Robert C. Thompson, Commerce, Crime and Conflict: Legal Remedies for Private Sector Liability for Grave Breaches of International Law, A Survey of Sixteen Countries, Report 536, Fafo, September 2006.

83 See Fafo, Business and International Crimes. Assessing the Liabilities of Business Entities for Grave Violations of International Law, Report 467, Allkopi Sarpsborg, Norway, 2004; A. Ramasastry and R. C. Thompson, above note 82.

84 Thomas Weigend, “Societas delinquere non potest? A German Perspective”, Journal of International Criminal Justice, Vol. 6, No. 5, 2008, p. 928. For an overview of common law corporate criminal responsibility, see Wells, Celia, Corporations and Criminal Responsibility, Oxford University Press, Oxford, 2001CrossRefGoogle Scholar.

85 Under this doctrine, used in Canada and United Kingdom, for instance, a corporation may be held liable for the actions of its agents if these actions can be interpreted as being consistent with the intent of the corporation. Fafo, above note 83, p. 23.

86 The mens rea of the corporation can be demonstrated by actions or omissions of employees or by establishing that the directing management knew or should have known of the illegal pattern benefiting the corporation. This doctrine is used in the United States and also in the United Kingdom. Ibid., p. 23. See also T. Weigend, above note 84.

87 See Australian Criminal Code Act 1995, Act No. 12 of 1995, Section 12.3(2)(c), Australian Criminal Code. See also Joanna Kyriakakis, “Australian Prosecution of Corporations for International Crimes: The Potential of the Commonwealth Criminal Code”, Journal of International Criminal Justice, Vol. 5, No. 4, 2007, p. 809; Allens Arthur Robinson, “Corporate Culture” as a Basis for the Criminal Liability of Corporations, documents prepared for the United Nations Special Representative of the Secretary-General on Human Rights and Business, February 2008, available at: www.reports-and-materials.org/Allens-Arthur-Robinson-Corporate-Culture-paper-for-Ruggie-Feb-2008.pdf.

88 See A. Ramasastry and R. C. Thompson, above note 82, p. 13.

89 CAT, Art. 5.

90 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 2237 UNTS 319 (entered into force 25 December 2003), Art. 5.

91 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 25 May 2000, 2171 UNTS 227 (entered into force 18 January 2002), Arts 3, 4, 5.

92 CERD, Art. 4(a).

93 Rome Statute of the ICC, 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (Rome Statute), Art. 7.

94 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951), Arts 4, 5, 6; Rome Statute, above note 93, Art. 6.

95 Declaration on the Protection of All Persons from Enforced Disappearance, UNGA Res. 47/133, 18 December 1992, Art. 4; International Convention on the Protection of All Persons from Enforced Disappearance (ICPPED), 20 December 2006, 2716 UNTS 3 (entered into force 23 December 2010), Arts 4, 9.

96 See notes 43 and 44 above. See also Resolution Adopted by the General Assembly: Extrajudicial, Summary or Arbitrary Executions, UNGA Res. 57/214, 25 February 2003, para. 5; Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, UN Doc. E/1989/89, 24 May 1989, Principle 18.

97 For instance, in its second periodic report under the CAT, the United States stated that it had “conducted or initiated investigations” in respect to allegations of misconduct levied against PMSC personnel in the Abu Ghraib prison. UN Committee Against Torture, Second Periodic Reports of States Parties Due in 1999: United States of America, CAT/C/48/Add.3, 29 June 2005, p. 74.

98 See common Art. 3(1)(d); GC I, Art. 49(4); GC II, Art. 50(4); GC III, Arts 102–108; GC IV, Arts 5(3), 66–75; AP I, Art. 75(4); AP II, Art. 6; Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 UNTS 240 (entered into force 7 August 1956), Art. 17(2).

99 See, e.g., ICCPR, Arts 14, 15; ECHR, Arts 6, 7; ACHR, Arts 8, 9; ACHPR, Art. 7.

100 ARS Draft Articles, above note 24. On this subject, see Tonkin, Hannah, State Control over Private Military and Security Companies in Armed Conflict, Cambridge University Press, Cambridge, 2011CrossRefGoogle Scholar; Sassòli, Marco, “State Responsibility for Violations of International Humanitarian Law”, International Review of the Red Cross, Vol. 84, No. 846, 2002, p. 401CrossRefGoogle Scholar.

101 See Introduction in Crawford, James, The International Law Commission's Articles on State Responsibility, Cambridge University Press, Cambridge, 2002Google Scholar, p. 60.

102 See ARS Draft Articles, above note 24, Commentary to Art. 4, para. 11, p. 42.

103 Ibid.

104 ICJ, Bosnia-Herzegovina v. Serbia and Montenegro, above note 33, para. 392:

according to the Court's jurisprudence, persons, groups of persons or entities may, for purposes of international responsibility, be equated with State organs even if that status does not follow from internal law, provided that in fact the persons, groups or entities act in “complete dependence” on the State, of which they are ultimately merely the instrument. In such a case, it is appropriate to look beyond legal status alone, in order to grasp the reality of the relationship between the person taking action, and the State to which he is so closely attached as to appear to be nothing more than its agent: any other solution would allow States to escape their international responsibility by choosing to act through persons or entities whose supposed independence would be purely fictitious.

105 IACtHR, Blake v. Guatemala, Series C, No. 36, Judgment (Merits), 24 January 1998.

106 Ibid., para. 76.

107 See, e.g., ICJ, Democratic Republic of the Congo v. Uganda, above note 6, para. 214.

108 “Agreement for the Provision of Military Assistance Dated this 31 day of January 1997 between the Independent State of Papua New Guinea and Sandline International” (Sandline Agreement), available at: http://psm.du.edu/media/documents/industry_initiatives/contracts/industry_contract_sandline-papua-new-guinea.pdf.

109 ICRC Customary Law Study, above note 13, Rule 4.

110 See ibid.; AP I, Art. 91; Hague Convention IV, Art. 3.

111 See Doswald-Beck, Louise, “PMCs under International Humanitarian Law”, in Chesterman, Simon and Lehnhardt, Chia (eds), From Mercenaries to Market, Oxford University Press, Oxford, 2007Google Scholar, p. 121. For the requirements to be fulfilled by the PMSC to fall into this category, see Schmitt, Michael, “Humanitarian Law and Direct participation in Hostilities by Private Contractors or Civilian Employees”, Chicago Journal of International Law, Vol. 5, No. 2, 2005, pp. 527–531Google Scholar.

112 J. Pictet, above note 19, Commentary on Art. 4, p. 59.

113 ARS Draft Articles, above note 24, Art. 5: “The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.”

114 Ibid., Commentary to Art. 5, para. 2, p. 43.

115 Ibid., Commentary to Art. 5, para. 7. See also Marina Spinedi, “Private Contractors: Responsabilité internationale des entreprises ou attribution à l'État de la conduite des personnes privées ?”, International Law Forum, Vol. 7, No. 4, 2005, p. 277.

116 ARS Draft Articles, above note 24, p. 43.

117 Indeed, the French version of Article 5 of the ARS Draft Articles on Responsibility of States for Internationally Wrongful Acts refers to “droit interne” (national legal order) and not “lois internes” (national legislation). By analogy, the commentary of the ILC on Article 3 of the ARS Draft Articles, which also refers to the term “internal law”, can be mentioned: “The principle in article 3 applies to all laws and regulations adopted within the framework of the State, by whatever authority and at whatever level. In the French version the expression droit interne is preferred to législation interne and loi interne, because it covers all provisions of the internal legal order, whether written or unwritten and whether they take the form of constitutional or legislative rules, administrative decrees or judicial decisions.” Ibid., Commentary to Art. 3, para. 9, p. 38.

118 Ibid., Commentary to Art. 5, para. 2, p. 43.

119 For instance, in its judgment on Democratic Republic of the Congo v. Uganda, above note 6, the ICJ did not make reference to the law of the State for attribution under Art. 5 of the ARS, but rather made reference to an “entity exercising elements of governmental authority on its behalf” (para. 160). See also Cameron, Lindsey and Chetail, Vincent, Privatising War: Private Military and Security Companies under Public International Law, Cambridge University Press, Cambridge, 2013, pp. 165–171CrossRefGoogle Scholar.

120 ARS Draft Articles, above note 24, Commentary to Art. 5, para. 2.

121 Third Report on State Responsibility, by Mr Robert Ago, Special Rapporteur: The Internationally Wrongful Act of the State, Source of International Responsibility, UN Doc. A/CN.4/246 and Add. 1–3, 1971 (Third Report on State Responsibility), para. 190.

122 Ibid., para. 191. In this regard, the decision in the Stephens case of the Mexico/United States of America General Claims Commission can be mentioned. In this case, the Commission held that

[s]ince nearly all of the Federal troops had been withdrawn from this State and were used farther south to quell this insurrection, a sort of informal municipal guards organization – at first called “defensas sociales” – had sprung up, partly to defend peaceful citizens, partly to take the field against the rebellion if necessary. It is difficult to determine with precision the status of these guards as an irregular auxiliary of the army, the more so as they lacked both uniforms and insignia; but at any rate they were “acting for” Mexico or for its political subdivisions.

…

Responsibility of a country for acts of soldiers in cases like the present one, in the presence and under the order of a superior, is not doubtful. Taking account of the conditions existing in Chihuahua then and there, Valenzuela must be considered as, or assimilated to, a soldier.

General Claims Commission, Charles S. Stephens and Bowman Stephens (U.S.A.) v. United Mexican States, Reports of International Arbitral Awards, 15 July 1927, pp. 265–268, paras 4 and 7.

123 On the notion of direct participation in hostilities, see ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, 2009 (ICRC Interpretive Guidance), available at: www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf.

124 ARS Draft Articles, above note 24, Commentary to Art. 5, para 2.

125 Again, the case of Sandline International in Papua New Guinea can be mentioned, as the PMSC was contracted to gather intelligence to support effective deployment and operations, to conduct offensive operations in Bougainville in conjunction with PNG defence forces and to provide follow-up operational support. The contract also provided that the PMSC shall “have such powers as are required to efficiently and effectively undertake their given roles, including but not limited to the powers to engage and fight hostile forces, repel attacks therefrom, arrest any persons suspected of undertaking or conspiring to undertake a harmful act, secure Sovereign assets and territory, defend the general population from any threat, and proactively protect their own and State Forces from any form of aggression or threat”. Sandline Agreement, above note 108.

126 ARS Draft Articles, above note 24, Commentary to Art. 9, para. 1, p. 49.

127 Ibid., Art. 9.

128 The ILC gives the example of the conduct of people participating in a levée en masse; see Ibid., Commentary to Art. 9, para. 2.

129 Ibid., Commentary to Art. 9, p. 49, para. 1.

130 See Third Report on State Responsibility, above note 121, para. 189, in which the ILC considers participation in a levée en masse as the exercise of an element of governmental authority. See also M. Sassòli, above note 100, p. 409.

131 See, for instance, US–Iran Claims Tribunal, Kenneth P. Yeager v. The Islamic Republic of Iran, Partial Award No. 324-10199-1, Iran–US CTR, Vol. 17, 2 November 1987, p. 104, para. 43. See also ARS Draft Articles, above note 24, Commentary to Art. 9, para. 2.

132 Ibid., above note 24, Art. 8, p. 47.

133 Ibid., Commentary to Art. 8, para. 7.

134 Ibid., Commentary to Art. 8, para. 8.

135 ICJ, Nicaragua v. United States, above note 21, paras 115–116, and Bosnia and Herzegovina v. Serbia and Montenegro, above note 33, paras 400–406.

136 ICJ, Nicaragua v. United States, above note 21, para. 115.

137 ARS Draft Articles, above note 24, Commentary to Art. 8, para. 3.

138 Ibid., Commentary to Art. 8, para. 5.

139 ICJ, Nicaragua v. United States, above note 21, para. 109.

140 ARS Draft Articles, above note 24, Commentary to Art. 8, para. 8.

141 On “global control”, see ECtHR, Loizidou v. Turkey, above note 76, para. 56.

142 ICTY, Prosecutor v. Duško Tadić, IT-94-1, Judgment (Appeals Chamber), 15 July 1999, para. 120. It is sometimes said that the question before the Tribunal was one of qualification of the conflict as non-international or international; nonetheless, the Tribunal decided this question in the light of the law of State responsibility, which is relevant for the purposes of this discussion.

143 Ibid., paras 138–140.

144 See ICJ, Democratic Republic of the Congo v. Uganda, above note 6, para. 160, and Bosnia and Herzegovina v. Serbia and Montenegro, above note 33, para. 398–407. On this issue, see also Chia Lehnhardt, “Private Military Companies and State Responsibility”, in S. Chesterman and C. Lehnhardt (eds), From Mercenaries to Market, above note 111, p. 152; see also the analysis by Cassese, Antonio, “The Nicaragua and Tadić Test Revisited in light of the ICJ Judgment on Genocide in Bosnia”, European Journal of International Law, Vol. 18, No. 4, 2007, pp. 649–668CrossRefGoogle Scholar.

145 ARS Draft Articles, above note 24, Art. 31. See also Basic Principles on Reparation, above note 51.

146 Permanent Court of International Justice (PCIJ), Opinion in the Lusitania Case, 1 November 1923, Recueil des sentences arbitrales, Vol. 7, p. 35; PICJ, Case Concerning the Factory at Chórzow (Jurisdiction), Collection of Judgments, Series A, No. 9, 26 July 1927, p. 21; PICJ, Case Concerning the Factory at Chórzow (Merits), Collection of Judgments, Series A, No. 17, 13 September 1928, para. 125. See also ARS Draft Articles, above note 24, Arts 30, 31, 34, 35, 36, 37.

147 Ibid., Art. 34. See also Basic Principles on Reparation, above note 51, Principle 18.

148 ICJ, Legal Consequences of the Construction of a Wall, above note 6, para. 153, and Democratic Republic of the Congo v. Uganda, above note 6, para. 259.

149 On this issue of reparation for IHL violations, see, inter alia, Gillard, Emanuela-Chiara, “Reparation for Violations of International Humanitarian Law”, International Review of the Red Cross, Vol. 85, No. 851, 2003, p. 534Google Scholar; Mazzeschi, Riccardo Pisillo, “Reparation Claims by Individuals for State Breaches of Humanitarian Law and Human Rights: An Overview”, Journal of International Criminal Justice, Vol. 1, No. 2, 2003, p. 343CrossRefGoogle Scholar; Hofmann, Rainer, “Victims of Violations of International Humanitarian Law: Do They Have an Individual Right to Reparation against States under International Law?”, in Dupuy, Pierre-Marie, Fassbender, Bardo, Shaw, Malcom N. and Sommermann, Karl-Peter (eds), Common Values in International Law: Essays in Honour of Christian Tomuschat, N. P. Engel Verlag, Kehl, 2006Google Scholar, p. 357; M. Sassòli, above note 100; Zegveld, Liesbeth, “Remedies for Victims of Violations of International Humanitarian Law”, International Review of the Red Cross, Vol. 85, No. 851, 2003, p. 497CrossRefGoogle Scholar; and Rosenfeld, Friedrich, “Collective Reparation for Victims of Armed Conflict”, International Review of the Red Cross, Vol. 92, No. 879, 2010, p. 731CrossRefGoogle Scholar.

150 ICRC Customary Law Study, above note 13, Rule 150. This is also in line with ARS Draft Articles, above note 24, Art. 31, which state that:

  1. 1.

    1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.

  2. 2.

    2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.

151 See E.-C. Gillard, above note 149, pp. 535 ff.

152 ICRC Customary Law Study, above note 13, Rule 150, Comments. For instance, the Eritrea/Ethiopia Claims Commission has jurisdiction over

all claims for loss, damage or injury by one Government against the other, and by nationals (including both natural and juridical persons) of one party against the Government of the other party … that are (a) related to the conflict that was the subject of the Framework Agreement, the Modalities for its Implementation and the Cessation of Hostilities Agreement, and (b) result from violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law.

Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, 12 December 2000, Art. 5(1), available at: www.pca-cpa.org/showfile.asp?fil_id=138. As for the United Nations Compensation Commission established in 1991 by the Security Council with the mandate to process claims and pay compensation for losses and damages suffered as a direct result of Iraq's unlawful invasion and occupation of Kuwait, it also dealt with individual claims and even with claims brought by corporations. See United Nations Compensation Commission, available at: www.uncc.ch. The ICJ, in its advisory opinion concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, seemed to recognize an obligation of reparation towards the individual; above note 6, see paras 152, 153. However, in the case on Jurisdictional Immunities of the State, the ICJ noted that:

against the background of a century of practice in which almost every peace treaty or post-war settlement has involved either a decision not to require the payment of reparations or the use of lump sum settlements and set-offs, it is difficult to see that international law contains a rule requiring the payment of full compensation to each and every individual victim as a rule accepted by the international community of States as a whole as one from which no derogation is permitted.

ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, ICJ Reports 2012, para. 94. It can also be mentioned that in 2010, the International Law Association adopted a resolution on reparation for victims of armed conflict: Reparation for Victims of Armed Conflict, Resolution No. 2/2010, 74th Conference of the International Law Association, The Hague, 15–20 August 2010. Art. 6 of the resolution states: “Victims of armed conflict have a right to reparation from the responsible parties.”

153 See Rome Statute, above note 93, Art. 75.

154 See, for instance, ICCPR, Art. 2(3); CAT, Art. 14; ECHR, Art. 41; ACHR, Art. 63. See also Universal Declaration of Human Rights, UNGA Res. 217A (III), 10 December 1948, Art. 8; and Basic Principles on Reparation, above note 51, Principle 15, which states:

Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.

155 Rome Statute, above note 93, Art. 79(1). See also Ibid., Art. 79, which provides for the establishment of a trust fund for the benefit of the victims of crimes within the jurisdiction of the Court, and of the families of such victims (emphasis added).

156 See Commentary on Statement 3.

157 See Montreux Document, above note 1, Part 2, Good Practices 31–52.

158 OAS, Report on Citizen Security and Human Rights, OEA/Ser.L/V/II, Doc. 57, 31 December 2009, para. 73.

159 GC I, Art. 49; GC II, Art. 50; GC III, Art. 129; GC IV, Art. 146; AP I, Art. 86.

160 See Montreux Document, above note 1, Part 2, Good Practices 51 and 52.

161 In that case, Art. 17 of the ARS Draft Articles, above note 24, would be applicable if its requirements are met: “A State which directs and controls another State in the commission of an internationally wrongful act by the latter is internationally responsible for that act if a) That State does so with knowledge of the circumstances of the internationally wrongful act; and b) The act would be internationally wrongful if committed by that State.” Ibid., Commentary on Art. 17, paras 5 and 6.

162 Hague Convention IV, Art. 43; see also Ibid., Art. 42.

163 See, in particular, Ibid., Arts 42–56, and GC IV, Arts 47–78.

164 See, e.g., Legal Consequences of the Construction of a Wall, above note 6, para 162, where the ICJ recalled in an obiter dictum that “both Israel and Palestine are under an obligation scrupulously to observe the rules of international humanitarian law, one of the paramount purposes of which is to protect civilian life”.

165 Ibid., para. 158.

166 See, by analogy, ICJ, Bosnia and Herzegovina v. Serbia and Montenegro, above note 33, para. 430.

167 See Montreux Document, above note 1, Part 2, Good Practices 53–67.

168 See Ibid., Part 2, Good Practice 73.

169 See Ibid., Part 2, Good Practices 68, 70 and 72.

170 GC I, Art. 49; GC II, Art. 50; GC III, Art. 129; GC IV, Art. 146; AP I, Arts 86, 88.

171 See Montreux Document, above note 1, Part 2, Good Practice 71.

172 CAT, Art. 5.

173 ICPPED, above note 95, Art. 9.

174 Rome Statute, above note 93, Arts 86 ff.

175 J. Pictet, above note 19, Commentary on Art. 1, p. 18.

176 For example, a meeting of the High Contracting Parties in accordance with AP I, Art. 7, or resort to the Protecting Powers institution, AP I, Art. 5.

177 GC I, Art. 49; GC II, Art. 50; GC III, Art. 129; GC IV, Art. 146; AP I, Arts. 86, 88.

178 CAT, Art. 5; ICPPED, Art. 9.

179 Although this would be a highly exceptional case, the possibility of a PMSC being a party to the conflict cannot be excluded. In such a case, the PMSC would be bound by the rules of IHL. If PMSCs are taking part in hostilities without being part of the armed forces of a party to the conflict, they may be considered organized armed groups if they present a sufficient level of internal organization and command and the capacity to sustain military operations. In this case, they will also be bound by IHL. For a detailed analysis of the criteria, see ICRC, “How Is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?”, opinion paper, March 2008; and ICTY, The Prosecutor v. Fatmir Limaj, IT-03-66-t, 30 November 2005, paras 94–134.

180 See an overview of sixteen countries in A. Ramasastry and R.C. Thompson, above note 82.

181 See Montreux Document, above note 1, Part 2, Good Practices.

182 See Montreux Document, above note 1, Part 2, Good Practices 22, 51, 52 and 73.

183 AP I, Art. 48; AP II, Art. 13(2); ICRC Customary Law Study, above note 13, Rule 1 (also applicable in non-international armed conflicts).

184 See AP I, Art. 50; and ICRC Customary Law Study, above note 13, Rule 5.

185 See GC III, Arts 4(A)(1), (2), (3) and (6); and AP I, Art. 50. See also AP I, Art. 43.

186 On this issue, see, for instance, Gillard, Emanuela-Chiara, “Business Goes to War: Private Military/Security Companies and International Humanitarian Law”, International Review of the Red Cross, Vol. 88, No. 863, 2006, p. 525CrossRefGoogle Scholar; and Cameron, Lindsey, “Private Military Companies: Their Status under International Humanitarian Law and Its Impact on Their Regulation”, International Review of the Red Cross, Vol. 88, No. 863, 2006, p. 573CrossRefGoogle Scholar.

187 AP I, Art. 43(2).

188 See GC III, Art. 4; AP I, Art. 44(1).

189 AP I, Art. 51(2); AP II, Art. 13(3); ICRC Customary Law Study, above note 13, Rule 1.

190 See Commentary on Statement 25.

191 ICRC Interpretive Guidance, above note 123, p. 37, Recommendation III.

192 “Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.” GC III, Art. 4(A)(4).

193 See ibid. See also Commentary on Statement 25.

194 See Montreux Document, above note 1, Part 2, Good Practices 10, 14, 30, 35, 40, 63 and 67.

195 “In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.” AP I, Art. 44 (3). See also Montreux Document, above note 1, Part 2, Good Practice 16.

196 AP I, Art. 48.

197 Ibid., Art. 51.

198 Ibid., Art. 51(3).

199 See ICRC Interpretive Guidance, above note 123. See also ICRC Clarification Process on the Notion of Direct Participation in Hostilities under International Humanitarian Law: Proceedings of the Expert Process (2003–2008), 2009, available at: www.icrc.org/eng/resources/documents/article/other/direct-participation-article-020709.htm.

200 ICRC Interpretive Guidance, above note 123, p. 16. See the Interpretive Guidance for a detailed analysis of these criteria and of the notion of direct participation in hostilities.

201 See Ibid., p. 56.

202 See Ibid., p. 48.

203 See Y. Sandoz, C. Swinarski and B. Zimmermann, above note 19, Art. 47, para. 1806.

204 ICRC Interpretive Guidance, above note 123, p. 53.

205 Ibid., p. 65, Recommendation VI.

206 See Ibid., p. 37, Recommendation III.

207 See Montreux Document, above note 1, Part 2, Good Practice 16.

208 See International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgment (Appeals Chamber), 1 June 2001, paras 443 and 444.

209 See AP I, Art. 50; and ICRC Customary Law Study, above note 13, Rule 5.

210 See E.-C. Gillard, above note 186, pp. 532–541.

211 GC III, Art. 4(A)(4).

212 AP I, Art. 51(3).

213 See Commentary on Statements 24 and 25; and Recommendation II and Commentary in ICRC Interpretive Guidance, above note 123, p. 27.

214 For the identity card model, see www.icrc.org/ihl.nsf/FULL/375?OpenDocument.

215 J. Pictet, above note 19, p. 65, Commentary on Art. 4(A)(4).

216 See ICRC Interpretive Guidance, above note 123, p. 37, Recommendation III, and p. 83, Recommendation X.

217 See, on this topic, Clapham, Andrew, Human Rights Obligations of Non-State Actors, Oxford University Press, Oxford, 2006, pp. 460–499CrossRefGoogle Scholar. See also Kadic v. Karadzic, above note 56, and Ibrahim v. Titan Corp., 391 F Supp 2d 10 (D.D.C. 2005), para. 14; and Cour administrative d'Appel de Bordeaux, Société nationale des chemins de fer v. MM. Georges Lipietz et S., No. 06BX01570, 27 March 2007 (affirmed by the Conseil d'État in December 2007: MM. Georges Lipietz et S. v. Société nationale des chemins de fer).

218 On this issue, see, for instance, Lehnardt, Chia, “Individual Liability of Private Military Personnel under International Criminal Law”, European Journal of International Law, Vol. 19, No. 5, 2008CrossRefGoogle Scholar; Vest, Hans, “Business Leaders and the Modes of Individual Criminal Responsibility under International Law”, Journal of International Criminal Justice, Vol. 8, No. 3, 2010CrossRefGoogle Scholar; and Farrell, Norman, “Attributing Criminal Liability to Corporate Actors: Some Lessons from International Tribunals”, Journal of International Criminal Justice, Vol. 8, No. 3, 2010CrossRefGoogle Scholar.

219 See Montreux Document, above note 1, Part 2, Good Practices 22, 51, 52 and 73.

220 AP I, Art. 86(2); Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, 25 May 1993, UN Doc. S/RES/827 (ICTY Statute), Art. 7(3); Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January 1994 and 31 December 1994, 8 November 1994, UN Doc.S/RES/955 (ICTR Statute), Art. 6(3); Rome Statute, above note 93, Art. 28. See also International Military Tribunal at Nuremberg (IMT Nuremberg), The United States of America v. Wilhelm von Leeb et al. (The High Command Trial), Case No. 12, Judgment, 30 December 1947–28 October 1948, and List (Hostage Trial) case, Judgment, 8 July 1947–28 October 1948; International Military Tribunal for the Far East (IMT Tokyo), Case of the Major War Criminals, Judgment, 4–12 November 1948; ICTY, Prosecutor v. Delalić, Case No. IT-96-21-A, Judgment (Appeals Chamber), 20 February 2001, paras 189–198 and 222–241; and ICTR, Prosecutor v. Bagilishema, Case No. ICTR-95-1A, Judgment (Appeals Chamber, Reasons), 3 July 2002, paras 24–62.

221 See ICRC Customary Law Study, above note 13, Rule 153.

222 See AP I, Art. 87; and Rome Statute, above note 93, Art. 28(a)(ii).

223 ICTY, Prosecutor v. Delalić, above note 220, para.192.

224 Ibid., para. 198.

225 Ibid., para. 239.

226 Ibid., paras 216–240.

227 Rome Statute, above note 93, Art. 28(b); ICTY Statute, above note 220, Art. 7(3); ICTR Statute, above note 220, Art. 6(3); ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4, Judgment (Trial Chamber), 2 September 1998, paras 490–449; ICTY, Prosecutor v. Delalić, above note 220, para. 196.

228 See, for example, ICTR, Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgment (Trial Chamber), 27 January 2000.

229 See ICRC Customary Law Study, above note 13, Commentary on Rule 153:

(i) Civilian command authority. Not only military personnel but also civilians can be liable for war crimes on the basis of command responsibility. The International Criminal Tribunal for Rwanda, in the Akayesu case in 1998 and in the Kayishema and Ruzindana case in 1999, and the International Criminal Tribunal for the former Yugoslavia, in the Delalić case in 1998, have adopted this principle. It is also contained in the Statute of the International Criminal Court. The Statutes of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone refer in general terms to a “superior[”], as do many military manuals and national legislation [references omitted].

230 See, e.g., ICTR, Prosecutor v. Bagilishema, Case No. ICTR-95-1A, Judgment (Appeals Chamber, Reasons), 3 July 2002, para. 50.

231 See Prosecutor v. Musema, above note 228, para. 880:

The Chamber notes that Musema was in a position, by virtue of these powers, to take reasonable measures, such as removing, or threatening to remove, an individual from his or her position at the Tea Factory if he or she was identified as a perpetrator of crimes punishable under the Statute. The Chamber also finds that, by virtue of these powers, Musema was in a position to take reasonable measures to attempt to prevent or to punish the use of Tea Factory vehicles, uniforms or other Tea Factory property in the commission of such crimes.

See also ICTY, Prosecutor v. Aleksovski, Case No. IT-95-14/1-T, Judgment (Trial Chamber), 25 June1999, para. 78, where the tribunal:

considers that the superior's ability de jure or de facto to impose sanctions is not essential. The possibility of transmitting reports to the appropriate authorities suffices once the civilian authority, through its position in the hierarchy, is expected to report whenever crimes are committed, and that, in the light of this position, the likelihood that those reports will trigger an investigation or initiate disciplinary or even criminal measures is extant.

232 Rome Statute, above note 93, Art. 28(b)(ii).

233 Ibid., Art. 28(a)(i).

234 Ibid., Art. 28(b)(i).

235 Ambos, Kai, “Superior Responsibility”, in Cassese, Antonio, Gaeta, Paola and Jones, John R. W. D. (eds), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002Google Scholar, p. 870.

236 On this notion, see ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo (Pre-Trial Chamber II), paras 408–410.

237 See Arnold, Roberta and Triffterer, Otto, “Article 28: Responsibility of Commanders and Other Superiors”, in Triffterer, Otto (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd ed., C. H. Beck Hart Nomos, Munich, 2008Google Scholar. On the requirements related to the military structure and the chain of command, see ICTY, Prosecutor v. Mucić et al., Case No. IT-96-21-A, Judgment (Appeals Chamber), 20 February 2001, para. 193.

238 ICTY Statute, above note 220, Arts 4, 5 and 7(3); ICTR Statute, above note 220, Arts 2, 3 and 6(3); and Rome Statute, above note 93, Arts 6, 7 and 28.

239 Committee against Torture, General Comment 2, Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/CRP.1/Rev.4, 23 November 2007, para. 26; see, similarly, Hilao v. Estate of Marcos, 103 F.3d 767, paras 776–778 (9th Cir. 1996).