The Individual Criminal Responsibility of Members of Private Military and Security Companies in Armed Conflicts

Abstract

The use of private military and security companies (“PMSCs”) has continued to increase globally. However, it can be argued that the international efforts to regulate the use of these companies and to effectively deal with the issues related to the actions of the companies and their employees have not been widely successful so far. There have been claims that the PMSCs and their personnel operate in a “legal vacuum” or “grey zone”, especially when they are acting in armed conflicts. The main focus of this thesis is on the individual criminal responsibility of the personnel of private military and security companies for international crimes committed during armed conflicts. Since international courts have no jurisdiction over the private military and security companies as corporations, it is instead highly relevant to look at the individual criminal responsibility of the employees of PMSCs, as it seems to be the most likely avenue to hold the actors of the private companies responsible for international crimes. There have been notable allegations of misconduct by PMSCs in armed conflicts, including war crimes and other international crimes. The employees of PMSCs can more easily than most other groups of individuals become perpetrators of such crimes, considering the nature of the business, which often leads the companies to operate in conflict settings. While the private companies and their employees are often quite straightforwardly likened to mercenaries in public debate, it can be concluded that in most cases they do not meet the strict definition of a mercenary under international law. Instead, they do constitute a new phenomenon and have a distinct legal status. However, the ambiguous status of PMSC employees under IHL raises questions about both the privileges and responsibilities of the personnel of private companies and is closely linked to the question of their individual criminal liability for international crimes as well. As a principle, individuals should always bear responsibility for participation in international crimes, and especially for the gravest breaches of IHL. Thus, the fact that the personnel of PMSCs are working for a private company, does or at least should not exclude them from any individual criminal liability for international crimes. Nevertheless, in many ways it has remained unclear whether the employees of PMSCs can be held responsible for international crimes in a similar way than the military personnel of a state. The relevant questions, which will be examined in this thesis, relate to their unclear status under IHL, the narrow legal definition of a mercenary and the scope of individual criminal liability of PMSC personnel with regard to e.g. the doctrine of command and the superior-subordinate relationship. Another relevant question, which will also be discussed in this thesis, is about what the appropriate forum for their prosecution for international crimes would be.