Definitions

It is important to understand the terms used in the Montreux document and their specific definition within the document. Several terms will be explained in this section.

For the purposes of the Montreux document:

• • “PMSCs” are private businesses entities that provide military and/or security services, irrespective of how they describe themselves. Military and security services include, in particular, armed 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.

The Montreux Document does not attempt to classify companies. Rather, it seeks to promote respect for IHL and IHRL by any business providing military or security services in armed conflict situations. PMSCs often provide both military and security services, and even other services. It is immaterial whether a PMSC considers itself to be a “military” or “security” company – what matters is the nature of the activities it carries out in a given situation. Furthermore, the Montreux Document is not restricted to military or security services involving the use of arms; it is also relevant for services such as the training of armed forces, intelligence and the interrogation of prisoners.

• • “Personnel of a PMSC” are persons employed by a PMSC, through direct hire or under a contract with a PMSC, including its employees and managers.

The rules contained in the Montreux Document are applicable to every individual employed by a PMSC and operating in a situation of armed conflict. This includes all employees, regardless of their function within a company, as well as all managers and directors. Personnel employed by business entities which are themselves subcontracted by a PMSC are also covered by this definition.

• • “Contracting States” are States that directly contract for the services of PMSCs, including, as appropriate, where such a PMSC subcontracts with another PMSC.

• • “Territorial States” are States on whose territory PMSCs operate.

• • “Home States” are States of nationality of a PMSC, i.e. where a PMSC is registered or incorporated; if the State where the PMSC is incorporated is not the one where it has its principal place of management, then the State where the PMSC has its principal place of management is the “Home State”.

The Montreux Document is conceived around three main relations that States may have with PMSCs: contractual, territorial or by means of incorporation.

The Contracting State, due to the specific links that the contract creates between itself and the PMSC, should take particular care to ensure that the decision to contract a PMSC does not impede respect for IHL and IHRL in any manner. The notion of “contract” should be interpreted in a broad sense, so as to also include very basic contracts. Furthermore, when the contracted PMSC subcontracts to another PMSC, the Contracting State should exercise due diligence to ensure that the subcontracted PMSC will also respect IHL and IHRL.

As for the Territorial State, it has, of course and as with all other States, an obligation to respect and ensure respect of IHL. When a State authorizes PMSCs to operate on its territory and/or to collaborate with or support its own military or police forces, it shall make certain that adequate national mechanisms are in place to ensure respect for IHL on its territory and to allow proper measures, including investigation and prosecution, to be carried out in case of violations. This territory also includes territorial seas and air above its lands and seas. Ships under the flag of a State will also be considered as part of the territory of that State. States are also generally considered responsible for respect and implementation of IHRL obligations “within their jurisdiction”.Footnote ¹⁰

The Home State is the State in whose jurisdiction the PMSC is incorporated, registered or has its principal place of management. Through its domestic legislation and policy, the Home State can contribute to ensuring that PMSC activities do not result in violations of IHL or IHRL. A State can do that through a variety of measures, such as imposing specific training requirements or activities restrictions for this industry through a licensing and reporting system.

Even if their relationship with PMSCs may be more tenuous, all other States also have some obligations in this regard and should implement the Montreux Document and the good practices it sets out. For instance, all States have an obligation to ensure that they have legislation allowing them to investigate and prosecute war crimes committed by their nationals working for foreign PMSCs abroad.

Furthermore, the IHL and IHRL obligations of Contracting, Territorial and Home States are not implemented in watertight compartments, and various States may have obligations toward one particular PMSC and members of its personnel. Therefore, with the aim of ensuring respect for IHL and IHRL and access to remedy for victims, States should cooperate in elaborating and implementing their regulations so as to avoid jurisdictional gaps.

A. Contracting States

1. Contracting States retain their obligations under international law, even if they contract PMSCs to perform certain activities. If they are occupying powers, they have an obligation to take all measures in their power to restore, and ensure, as far as possible, public order and safety, i.e. exercise vigilance in preventing violations of international humanitarian law and human rights law.

This statement recalls that contracting companies to perform certain activities does not relieve States from their international law obligations. Although international law does not prevent States from contracting out various activities,Footnote ¹¹ failure of a State to meet its international obligations cannot be excused by the outsourcing of a particular task. Therefore, Contracting States shall ensure that the respect and implementation of their obligations under international law, and in particular under IHL and IHRL, is not impeded by their decision to contract out PMSCs.

For instance, in an international armed conflict, the Detaining Power is responsible for the treatment given to prisoners of war (PoWs).Footnote ¹² Therefore, even if the capture, transfer or detention of PoWs is carried out by a PMSC contracted by the State, the Contracting State, which will be the Detaining Power in this case, remains responsible for the respect of applicable IHL rules. This overall responsibility of the Detaining Power is also applicable if it contracts out activities related to the running of a detention facility to a private company, such as interrogation of detainees or internees, care or facility administration. If private company personnel do not treat detainees according to the standards of IHL, for instance by mistreating them or by not ensuring adequate health care or nutrition, the State will be responsible if the action or omission in question can be attributed to the State (in this regard, see Commentary to Statement 7) or, depending on the circumstances, for its own failure to ensure that the conditions of detention and standards of treatment specified in the relevant conventions are met (see Commentary to Statement 3).

Furthermore, States contracting out the operation of checkpoints to PMSCs retain their obligation to ensure freedom of movement of authorized humanitarian relief personnel essential to the exercise of their functions and to allow and facilitate rapid and unimpeded passage of humanitarian relief, which is impartial and conducted without any adverse distinction, for civilians in need.Footnote ¹³

In a situation of occupation, IHL imposes on the Occupying Power a number of obligations towards the population of the occupied territory.Footnote ¹⁴ The Occupying Power remains responsible for taking all feasible measures to fulfil these obligations, even if it contracts a private company to do so. A more specific obligation can be found in Article 43 of the Hague Regulations, which requires the Occupying Power to “take all measures in his power to restore, and ensure, as far as possible, public order and safety”. According to the International Court of Justice (ICJ):

The Occupying Power has an obligation to exercise “vigilance” in order to prevent violations of IHL and IHRL, including by non-State actors.Footnote ¹⁶ Thus, in an occupied territory, the Occupying Power has to take positive steps to prevent all third parties, including PMSCs, from committing acts that endanger public order and safety.

Another example can be found in respect to training and teaching. The fact that military training and teaching are being performed by PMSCs does not discharge the State or the military commanders of their obligation to prevent and suppress violations of IHL.Footnote ¹⁷

States also remain bound by their obligations under IHRL (as they continue to apply in times of armed conflict). Indeed, under IHRL, States not only have an obligation to refrain from violating human rights, but also have a positive obligation to ensure that the human rights of persons under their jurisdiction are respected even by private actors, including PMSC personnel.Footnote ¹⁸ Therefore, States must adopt legislative and other measures in order to protect and to implement their obligations under IHRL. These human rights obligations might be limited when States contract PMSCs to conduct activities abroad (see Commentary to Statement 4).

2. Contracting States have an obligation not to contract PMSCs to carry out activities that international humanitarian law explicitly assigns to a State agent or authority, such as exercising the power of the responsible officer over prisoner-of-war camps or places of internment of civilians in accordance with the Geneva Conventions.

Under IHL there are a number of responsibilities of the parties to the conflict that cannot be contracted out at all, as they must be performed by the State party itself, and in some instances even by a specific person. Examples can be found in the following provisions:

• - Article 51 of the Hague Regulations Respecting the Laws and Customs of War on Land, annexed to the 1907 Hague Convention (IV), requires a written order of the commander-in-chief for any contribution collected in occupied territory;

• - Article 52 of the Hague Regulations Respecting the Laws and Customs of War on Land, annexed to the 1907 Hague Convention (IV), requires the commander in the occupied locality to give authorization for requisitions or demanded services;

• - Article 1 of the Hague Convention (VII) relating to the Conversion of Merchant Ships into War-Ships indicates that a merchant ship converted into a warship 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;

• - Article 39 of GC III states that PoW camps have to be under the immediate authority of a responsible commissioned officer belonging to the regular armed forces of the Detaining Power;

• - Article 120(2) of GC III states that death certificates or lists of deaths of prisoners of war have to be certified by a responsible officer;

• - Article 99 of GC IV states that internment facilities have to be under the authority of a responsible officer, chosen from the regular military forces or the regular civil administration of the Detaining Power; and

• - Article 121 of GC III and Article 131 of GC IV state that in case of death of a prisoner of war or a civilian internee caused or suspected to have been caused by another person, the Detaining Power must carry out an immediate official enquiry.

3. Contracting States have an obligation, within their power, to ensure respect for international humanitarian law by PMSCs they contract, in particular to:

1. a) ensure that PMSCs that they contract and their personnel are aware of their obligations and trained accordingly;

2. b) not encourage or assist in, and take appropriate measures to prevent, any violations of international humanitarian law by personnel of PMSCs;

3. c) take measures to suppress violations of international humanitarian law committed by the personnel of PMSCs through appropriate means, such as military regulations, administrative orders and other regulatory measures as well as administrative, disciplinary or judicial sanctions, as appropriate.

The obligation to respect IHL means an obligation for the State to refrain from committing violations through its own authorities and armed forces, while the obligation to ensure respect for IHL entails a duty to take measures to prevent and repress violations of humanitarian law. It is a commitment to promote compliance with IHL,Footnote ¹⁹ a commitment to act “with due diligence to prevent [violations of IHL] from taking place, or to ensure their repression once they have taken place”.Footnote ²⁰

The obligation to ensure respect for IHL is enshrined in Article 1 common to the four Geneva Conventions and Article 1 of Additional Protocol I (AP I), which stipulate that “[t]he High Contracting Parties undertake to respect and to ensure respect for [the present Convention/this Protocol] in all circumstances”. This obligation “does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression”.Footnote ²¹ It is also a rule of customary law specifically in regard to persons or groups of persons acting in fact on the instructions of, or under the direction or control of, the StateFootnote ²² (in this respect, see Commentary to Statement 7). The obligation of States not to encourage violations of IHL by parties to an armed conflict and to exert their influence, to the degree possible, to stop violations of IHL is also a rule of customary law.Footnote ²³ “Obligations of prevention are usually construed as best efforts obligations, requiring States to take all reasonable or necessary measures to prevent a given event from occurring, but without warranting that the event will not occur.”Footnote ²⁴ As the wording of common Article 1 indicates, this has to be the case in all circumstances, including in respect to the activities of PMSCs.

Contracting States are in a particularly favourable position to ensure respect for IHL. Indeed, PMSCs provide services on the basis of contracts with clients, including Contracting States. Contracting States thus have the means to effectively control how PMSCs operate. In this respect, the good practices contained in Part II of the Montreux Document offer guidance on measures that can be taken to ensure that PMSC personnel comply with IHL. For instance, this could be done by first determining which services may be outsourced, by establishing procedures and criteria for the selection and contracting of PMSCs, by monitoring compliance of PMSCs and their personnel with IHL and IHRL, and by ensuring accountability in case of violations, for instance through criminal procedure or non-criminal accountability mechanisms.Footnote ²⁵

In addition to the obligation to give appropriate instructions to its armed forces and ensure that they are properly carried out,Footnote ²⁶ The Contracting State must also disseminate the texts of the Geneva Conventions to its armed forces and to the civilian population as widely as possible.Footnote ²⁷ The State also has an obligation to disseminate IHL among “the entire population” – especially personnel of PMSCs.Footnote ²⁸ Furthermore, considering the nature of the services offered by PMSCs and the fact that they may operate in conflict zones, States may decide to develop dissemination programmes specifically designed for the industry.

The Contracting State has to give itself the legal and material means to ensure that its obligations will be respected and to take measures to prevent violations of IHL by PMSC personnel. For instance, the Commentary to Article 27 of GC IV providing for the treatment of protected personsFootnote ²⁹ states:

Therefore, measures taken by States to prevent violations of IHL by PMSCs and their personnel and accountability mechanisms established to deal with violations must have practical and concrete preventive effects. They must also provide assistance and remedies to victims.

IHL gives rather clear indications that military authorities must be fully acquainted with the texts of the Geneva ConventionsFootnote ³¹ and that they must have adequate instructions, orders and supervision.Footnote ³² This obligation is relevant for activities of personnel of a PMSC that is integrated into the armed forces or whose conduct is attributable to the State (see below Commentary to Statement 8). As stated before (see Commentary to Statement 1), the State is not discharged from its obligations under IHL by its decision to have recourse to PMSCs to provide military-related activities.

Which measures a State has to take in order to discharge its obligation to ensure respect will depend on various parameters such as the capacity of that State to effectively influence the PMSCs and/or members of their personnel likely to commit violations, the geographical distance of the State from the events, and the strength of its links – contractual, legal, political, economical, etc. – with PMSCs.Footnote ³³ The risk of IHL violations should also be a factor in assessing the due diligence obligation of a State. For instance, if the PMSC personnel operate in an armed conflict situation or are authorized to carry arms, or if the contract involves direct participation in hostilities, the State should be particularly vigilant and should implement preventive measures appropriate to the situation.Footnote ³⁴

Mainly, States should provide instructions to the relevant authorities, for instance their own authorities in charge of liaising with PMSCs. If States contract PMSCs, the obligation to ensure respect for IHL can be understood as entailing an obligation of the contracting authorities to ensure that the company and its employees are aware of their obligations and commit themselves to respecting them.Footnote ³⁵ When the contracted PMSC subcontracts other PMSCs, the Contracting State should also exercise due diligence to ensure that IHL is respected by those subcontracted PMSCs. How the authorities ensure this is within the margin of discretion of the State, as long as it takes all appropriate measures. As a minimum, States have an obligation not to encourage or assist in any violations of IHL committed by personnel of PMSCs that they contract.Footnote ³⁶

Finally, the Statement mentions the obligation to suppress violations of IHL. In addition to the suppression of grave breaches, the relevant articles of the Geneva Conventions require the “suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article”.Footnote ³⁷ Measures taken in this respect may include, in addition to criminal law, military regulations, administrative orders and other regulatory measures as well as sanctions by appropriate means, which can be administrative, disciplinary or judicial.

4. Contracting States are responsible to implement their obligations under international human rights law, including by adopting such legislative and other measures as may be necessary to give effect to these obligations. To this end they have the obligation, in specific circumstances, to take appropriate measures to prevent, investigate and provide effective remedies for relevant misconduct of PMSCs and their personnel.

The obligation to implement IHRL is a complex one which can vary according to different treaties to which a State has subscribed.Footnote ³⁸ The obligations described in the following commentary are relevant not only for Contracting States, but also for Territorial and Home States. However, due to their close link with PMSCs, Contracting States should be especially vigilant in ensuring that they have adopted adequate legislative or administrative measures to give effect to their IHRL obligations in respect to activities of PMSCs that they contract.

a) Obligation to implement human rights: Human rights can be threatened not only by the conduct of States, but also by that of private actors. Some human rights treaties specifically require States to protect individuals from private actors' abuses.Footnote ³⁹ Human rights bodies and courts have also generally interpreted the obligation to implement human rights as including an obligation for States to protect people against the conduct of third parties that infringes upon their human rights.Footnote ⁴⁰ At a minimum States have an obligation to exercise due diligence to prevent, investigate, hold perpetrators accountable for, and provide remedies against the harm caused by the conduct of private persons or entities which can affect human rights.Footnote ⁴¹ In regard to the obligation of prevention, the obligation to implement human rights includes, for instance, a duty to provide adequate training and clear guidance on IHRL to PMSC employees.Footnote ⁴²

Certain rights are, of course, more amenable than others to application between private persons or entities. The right to life – which some treaties explicitly oblige States to protect by lawFootnote ⁴³ – is of particular importance and has been recognized as requiring protection by States against the conduct of third parties.Footnote ⁴⁴

Similarly, the right to physical integrity, including the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, has been recognized in international jurisprudence as requiring protection by the State.Footnote ⁴⁵ For instance, if a PMSC employee commits any form of assault on a person, this affects that person's right to physical and mental integrity. The State, even if it is not necessarily responsible for that private act, has an obligation – if the assault is of a criminal nature – to investigate, prosecute and punish the perpetrator.Footnote ⁴⁶

b) Legislative and other measures: States must adopt all necessary legislative or other measures to implement their human rights obligations. This includes measures to prevent any violation by the State or abuse by PMSCs and their personnel, to punish violations and to provide remedies to victims. This is explicitly stated in some human rights conventions, such as in Article 2(2) of the International Covenant on Civil and Political Rights, which states:

A similar formulation is found in Article 2 of the American Convention on Human Rights. While the European Convention on Human Rights does not contain an express obligation to adopt legislative measures, the European Court of Human Rights has recognized this obligation in its constant jurisprudence.Footnote ⁴⁸ Furthermore, as mentioned above, some treaty provisions on the right to life explicitly recognize the duty to protect this right “by law”, including against criminal conduct by private parties.Footnote ⁴⁹ In regard to PMSCs, the Inter-American Commission in its 1996 Annual Report recommended to Guatemala that it should dedicate additional attention “to the proliferation of arms and private security forces or groups, to assure that adequate legislative, administrative and judicial measures are in place to control the number and use of firearms, and to monitor and control the actions of private security agents”.Footnote ⁵⁰

c) Remedies: Under human rights law, everyone who has an arguable claim that his or her rights have been violated has a right to an effective remedy as determined by competent authorities.Footnote ⁵¹ Commonly, this means a judicial remedy in accordance with national law, but it can also be an administrative remedy as long as it is effective.Footnote ⁵² Thus the individual has the right to bring a claim against the State authorities not only on the grounds that the State is responsible for a violation committed by its own authorities but also against a failure of the State to protect the individual against the conduct of a PMSC or its personnel. In this sense, the European Court of Human Rights has held that in order to seek protection as well as to ask the authorities to investigate alleged negligence on the part of governmental authorities, individuals have a right to a remedy if they have an arguable claim that the authorities did not fulfil their duty of due diligence to prevent the abuse or investigate it.Footnote ⁵³ In other words, a victim of unlawful behaviour by a PMSC or its personnel can bring a claim against the State for its failure to take appropriate measures to protect the victim against such unlawful behaviour.

Measures allowing victims to obtain remedies directly from the perpetrator may also be established. Some domestic legislation provides for victims' civil claims to be filed directly against non-State perpetrators, including business entities, for certain human rights and IHL violations; for instance, the US Alien Tort Claims Act (ATCA)Footnote ⁵⁴ gives subject-matter jurisdiction to US federal courts over claims of non-nationals for a tort resulting from violations of international law.Footnote ⁵⁵ Violations of international law that have been recognized as actionable under this statute include genocide,Footnote ⁵⁶ crimes against humanity,Footnote ⁵⁷ war crimes,Footnote ⁵⁸ torture,Footnote ⁵⁹ extrajudicial killings,Footnote ⁶⁰ prolonged arbitrary detentionFootnote ⁶¹ and forced labour.Footnote ⁶² Claims have been filed against PMSCs and members of their personnel based on this statute.Footnote ⁶³ However, in 2013, the Supreme Court of the United States held that the presumption against extraterritorial application of federal statutes applies to the ATCA. Its scope of application has thus been significantly narrowed: “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”Footnote ⁶⁴ Nevertheless, it remains possible to bring claims for violations of IHL or IHRL involving business entities under this statute.Footnote ⁶⁵ In other jurisdictions, war crimes may be indictable offences under civil law.Footnote ⁶⁶

Additional guidance on measures that States can adopt in order to protect victims of abuses by private companies and to provide them with remedies can be found in the 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.Footnote ⁶⁷ According to these basic principles, States have an obligation under international law to adopt appropriate and effective legislative and administrative procedures and other appropriate measures that provide fair, effective and prompt access to justice and remedies, including reparation.Footnote ⁶⁸ Victims should be informed of their rights for seeking redress.Footnote ⁶⁹ States should also support victims of the worst abuses with compensation if compensation is not available from the offenderFootnote ⁷⁰ and ensure that victims receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based or indigenous means.Footnote ⁷¹

States can also encourage and support corporate-based grievance mechanisms as a complementary means for victims to access remedies.Footnote ⁷² For instance, the International Code of Conduct for Private Security Service Providers (ICoC), adopted in November 2010, provides for the establishment of grievance procedures to address claims alleging failure by the a signatory company to respect the principles contained in the ICoC, brought by personnel of the company or by third parties.Footnote ⁷³ The Charter for the Oversight Mechanism of the ICoC, adopted in February 2013,Footnote ⁷⁴ establishes the foundations for the creation of the ICoC Association (ICoCA). The ICoCA was officially launched in September 2013 and involves PMSCs, governments and civil society organizations. As of January 2014, more than 700 companies had signed the ICoC and committed to respect IHL and IHRL standards.

d) Limits of extraterritorial application: Human rights treaties usually restrict the obligation of States to secure rights and freedoms that they provide for to “their territory or subject to their jurisdiction”.Footnote ⁷⁵ “Subject to their jurisdiction” must be understood as anyone within the power or effective control of the authorities.Footnote ⁷⁶ Although obligations of States that contract PMSCs to carry out activities abroad or Home States of PMSCs operating in another territory may be limited, those States may have some obligations in this respect and may bear responsibility for violations of human rights committed by PMSCs abroad.Footnote ⁷⁷ For instance, if a State contracts a PMSC to carry out operations abroad, this State will have obligations with regard to violations of human rights committed by the PMSC or its personnel if their acts can be attributed to the State by virtue of the law of State responsibility (see below Commentary to Statement 8) or can be considered as having occurred within the jurisdiction of the State. Again, if the Contracting State has effective control over the territory abroad, such as in a situation of occupation, or if the State has power over the victim, such as in a situation of detention,Footnote ⁷⁸ effective control of the State would entail human rights law obligations.

Furthermore, domestic criminal laws may provide for domestic jurisdiction over acts committed by nationals abroad. For instance, criminal provisions on war crimes (see Commentary to Statement 5), crimes against humanity, genocide, terrorism, human trafficking or torture may provide for extraterritorial jurisdiction based on the nationality of the alleged perpetrator. In cases where the domestic law of the territorial State grants immunity to private contractors, Contracting States should make sure that their own domestic law provides for jurisdiction over criminal acts of the personnel of PMSCs that they contract with, in order to avoid jurisdictional gaps and impunity.Footnote ⁷⁹

5. Contracting States have an obligation to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, grave breaches of the Geneva Conventions and, where applicable, Additional Protocol I, and have an obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches and bring such persons, regardless of their nationality, before their own courts. They may also, if they prefer, and in accordance with the provisions of their own legislation, hand such persons over for trial to another State concerned, provided such State has made out a prima facie case, or to an international criminal tribunal.

This obligation to enact legislation to provide effective penal sanction in regard to the commission of grave breaches of the Geneva Conventions and AP I, where applicable, and to investigate, prosecute and punish the commission of grave breaches, is a core IHL obligation. States can also choose to hand suspects over for trial to another State if this State has made a prima facie case, or to an international criminal tribunal.Footnote ⁸⁰

For any grave breach committed by personnel of PMSCs, all States have an obligation to search for persons, regardless of their nationality, alleged to have committed, or to have ordered to be committed, such grave breaches at least within their territory, and to bring these persons before their own courts or to hand them over for trial to another State, at least when these persons find themselves on their territory.Footnote ⁸¹ That jurisdictional basis is additional to other bases of criminal jurisdiction used for common crimes: jurisdiction based on the territory on which the crime has been committed, on the nationality of the perpetrator, on the nationality of the victim, or on the protection of national interests or security.

The word “persons” used in Statement 5 can be read as including legal persons. It can be noted that in a number of countries, criminal law, including statutes on war crimes, applies not only to individuals but also to corporations.Footnote ⁸² In these legal systems, not only the personnel or managers can be prosecuted for crimes, but also the company itself. Many domestic legal systems, especially common law countries, recognize corporate criminal responsibility.Footnote ⁸³ The principle is also a developing one in continental law countries.Footnote ⁸⁴ However, the doctrine used to affirm the criminal responsibility of corporations varies in different countries, from the one of the directing mind Footnote ⁸⁵ to the one requiring the establishment of the guilty mind of the corporation as a wholeFootnote ⁸⁶ or by establishing a corporate culture. Footnote ⁸⁷ Nevertheless, in most domestic legislations, for a corporation to be held liable, the criminal act must have been committed by an employee with a certain status, such as a director, or with a certain level of influence within the company and within the scope of his or her employment.Footnote ⁸⁸

6. Contracting States also have an obligation to investigate and, as required by international law, or otherwise as appropriate, prosecute, extradite or surrender persons suspected of having committed other crimes under international law, such as torture or hostage taking, in accordance with their obligations under international law. Such prosecutions are to be carried out in accordance with international law providing for fair trial, mindful that sanctions be commensurate with the gravity of the crime.

International law requires the criminalization of a number of acts. This obligation exists in varying forms in different treaties, which impose different types of jurisdiction for specific crimes. For instance, Article 5 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) stipulates that each State Party must establish jurisdiction over the offence of torture when it is committed in any territory under its jurisdiction or on board of a ship or aircraft registered in that State, or when the alleged offender is a national of that State, or when the victim is a national of that State if that State considers it appropriate; or when the alleged offender is present in any territory under its jurisdiction and it does not extradite him or her.Footnote ⁸⁹ Other violations of international law that require criminalization in national law include slavery, trafficking in human beings,Footnote ⁹⁰ child pornography,Footnote ⁹¹ violent acts of racial discrimination,Footnote ⁹² crimes against humanity,Footnote ⁹³ genocideFootnote ⁹⁴ and enforced disappearance.Footnote ⁹⁵ Arguably, State practice also reflects an obligation to criminalize murder/extrajudicial executions. Murder is criminalized in all legal systems and, as discussed above, States have an obligation under IHRL to protect life by law.Footnote ⁹⁶ States also have an obligation to investigate alleged perpetrations of these crimes.Footnote ⁹⁷

In regard to PMSC personnel contracted by a State, the respect of this obligation may face some complex issues due to the fact that employees of PMSCs may have various nationalities and may operate in another territory. States must ensure that these complexities do not result in impunity and that they respect their international obligations in this regard.

Prosecution of international crimes must always be conducted in accordance with international standards of fair trial. The right of any person facing criminal charge to a fair trial is guaranteed by both IHLFootnote ⁹⁸ and IHRL.Footnote ⁹⁹ A fair trial must be held before a competent, independent and impartial tribunal established by law. It must also respect the fundamental judicial guarantees of the accused. Fundamental judicial guarantees include the right to be presumed innocent until proven guilty according to the law, the right to be informed without delay of the particulars of the alleged offence, the right and means of defence, the right to be present at one's own trial, the respect of the principle of non-retroactivity of the law, the right not be sentenced to a heavier penalty than was applicable at the time of the commission of the offence, the right to benefit from the lighter penalty provided by the law at the time of the sentence, and the respect of the ne bis in idem principle.

7. Although entering into contractual relations does not in itself engage the responsibility of Contracting States, the latter are responsible for violations of international humanitarian law, human rights law or other rules of international law committed by PMSCs or their personnel where such violations are attributable to the Contracting State, consistent with customary international law, in particular if they are:

1. a) incorporated by the State into their regular armed forces in accordance with its domestic legislation;

2. b) members of organized armed forces, groups or units under a command responsible to the State;

3. c) empowered to exercise elements of governmental authority if they are acting in that capacity (i.e. are formally authorized by law or regulation to carry out functions normally conducted by organs of the State); or

4. d) in fact acting on the instructions of a State (i.e. the State has especially instructed the private actor's conduct) or under its direction or control (i.e. actual exercise of effective control by the State over a private actor's conduct).

This Statement incorporates the most relevant rules of attribution of international responsibility of States in respect to PMSCs, without including all possible ways in which State responsibility may be engaged. It is inspired mainly by the International Law Commission (ILC) Articles on Responsibility of States for Internationally Wrongful Acts (ARS).Footnote ¹⁰⁰ While they are not, as such, binding, they draw on international practice and jurisprudence, and are meant to reflect to a large extent the current status of customary international law, especially by taking into account the comments of governments.Footnote ¹⁰¹ They are therefore often cited as international standards in this area.

a) Organs of the State, including members of the regular armed forces

According to Article 4 of the ARS:

A State may be responsible for the conduct of a PMSC or its personnel under this article if the PMSC or its personnel are formally incorporated by legislation into the State's armed forces or other organs of the State, such as the foreign affairs department, national police forces, or border control and immigration agencies, or if it can nevertheless be treated as an organ of the State due to the powers that it has or its relationship with governmental bodies.

On this last aspect, as stated by the second paragraph of Article 4 of the ASR, an organ of the State includes any person or entity having that status under the internal law of that State. The term “includes” means that reference to municipal law may not be the only way to characterize a private contractor or a PMSC as an organ of the State as in some countries this status might be determined by practice. The status of a private contractor or a PMSC may also be determined by its powers and its relation with other governmental bodies.Footnote ¹⁰² The term “includes” is also aimed at preventing a State from “avoid[ing] responsibility for the conduct of a body which does in truth act as one of its organs merely by denying it that status under its own law”.Footnote ¹⁰³ This has been clearly stated by the ICJ in the case of Bosnia-Herzegovina v. Serbia and Montenegro, in which the Court stated that in exceptional circumstances, a person or an entity can be regarded as an organ of a State for the purpose of State responsibility when that person or entity is in complete dependence on the State,Footnote ¹⁰⁴ even in the absence of a domestic law establishing this status.

The status of a private contractor or PMSC as a State organ might in some circumstances be difficult to determine. Jurisprudence offers some guidance in this respect. For instance, in the case of Blake v. Guatemala,Footnote ¹⁰⁵ the Inter-American Court of Human Rights found that members of the civil patrols, although they did not receive salary or social benefit from the State, were agents of the State as they were legally subordinated to the Ministry of National Defence. The Court also noted that the patrols have been created by the State as a part of its counter-insurgency strategy, and “enjoyed an institutional relationship with the Army, performed activities in support of the armed forces' functions, and, moreover, received resources, weapons, training and direct orders from the Guatemalan Army and operated under its supervision”.Footnote ¹⁰⁶

Although under international law of State responsibility private actions or omissions of individual members of a State organ, like a ministry of foreign affairs, do not entail the responsibility of that State, according to Article 3 of the Fourth Hague Convention and Article 91 of AP I, States will be responsible for all acts of members of their armed forces, including acts committed contrary to order or instruction and acts committed in a private capacity. In this case, IHL has to be considered as the lex specialis to the general rule of State responsibility.Footnote ¹⁰⁷ Therefore, a State will be responsible for all acts or omissions contrary to international law committed by PMSC personnel incorporated into its armed forces.

An example of incorporation of PMSC personnel can be found in the contract signed between Sandline International and the Papua New Guinea (PNG) authorities in 1997 to support the PNG armed forces fighting the Bougainville Revolutionary Army. This contract foresaw that:

b) All organized armed forces, groups or units under a command responsible to the State

This paragraph refers to Article 43(1) of AP I, which is also a rule of customary law in international armed conflict.Footnote ¹⁰⁹ Article 43(1) specifies who is to be considered as members of the armed forces of a party to the conflict for the purposes of IHL. According to this article, a PMSC can also fall under the definition of armed forces of the State if it forms an organized armed force, group or unit under a command responsible to the State for the conduct of its subordinates. In this case, its personnel will be considered as members of the armed forces of the State and, according to the specific rule of IHL, the latter will be responsible for all their acts.Footnote ¹¹⁰

Furthermore, PMSCs that are performing combat functions on behalf of a party to an international armed conflict may fall under the functional definition of armed forces under Article 43(1) of AP I or customary law.Footnote ¹¹¹

There is no need for a formal incorporation of PMSCs into the armed forces under national law, since the definition of armed forces set forth by IHL does not depend on the different domestic law regimes. To be under a responsible command, it is not necessary for every single employee of the PMSC to be responsible to the State authorities. It suffices that the leader of the armed force, group or unit (who can be either civilian or military)Footnote ¹¹² be responsible to that State.

c) Persons or entities empowered by law to exercise elements of governmental authority

Under international law, the conduct of a private contractor or PMSC which is not a State organ but which is empowered by the law of a State to exercise elements of governmental authority can be attributed to that State.Footnote ¹¹³ Private companies can fall into this category “provided that in each case [they are] empowered by the law of the State to exercise functions of a public character normally exercised by State organs”.Footnote ¹¹⁴ Attribution under Article 5 of the ARS is limited in the sense that only conduct of PMSCs empowered by domestic law to exercise elements of governmental authority will be attributable to the State under this article.Footnote ¹¹⁵ According to the ILC: “The internal law in question must specifically authorize the conduct as involving the exercise of public authority; it is not enough that it permits activity as part of the general regulation of the affairs of the community.”Footnote ¹¹⁶ The term “internal law” should also be given a broader meaning than national legislation.Footnote ¹¹⁷ For instance, in its commentaries, the ILC gives the example of private security firms contracted to act as prison guards, but without giving more details on to what extent and under which conditions a contract with such a firm can be a sufficient basis for attribution under Article 5 of the ARS.Footnote ¹¹⁸ This question remains to be clarified over time but would most likely be an important factor. Some have even argued that, contrary to Article 5 of the ARS, international customary law does not require empowerment by the law of the State for attribution of conduct of a person or entity exercising elements of governmental authority.Footnote ¹¹⁹

There is no clear definition in international law of “elements of governmental authority”, since the content of this notion depends to a large extent on the prevailing legal and constitutional traditions peculiar to each State. In general, activities such as judicial functions, national defence, foreign policy and police operations would commonly be understood as inherently governmental functions. For instance, private security firms contracted to exercise powers of detention and discipline pursuant to a judicial sentence or to prison regulations would exercise elements of governmental authority.Footnote ¹²⁰ Drivers of private vehicles used to carry troops to the front, and private persons appointed by a State to carry out intelligence missions, to help insurrectional movements in a foreign countryFootnote ¹²¹ or to serve as auxiliaries in the police or the armed forces, would also fall under this category.Footnote ¹²² In this sense, direct participation in hostilities on behalf of a State party to an international armed conflict should be considered as an element of governmental authority.Footnote ¹²³ Other examples include powers related to immigration or border control.Footnote ¹²⁴

PMSCs have been contracted out in the past to perform services that can be regarded as elements of governmental authority. The example of PMSCs contracted to act as interrogators in prisons can be mentioned in this respect, as well as those commissioned to provide intelligence services.Footnote ¹²⁵ Operating checkpoints at the border of national or occupied territories is also an element of governmental authority.

Under IHL, some obligations must be undertaken by the State party to the conflict, and related conduct can be considered as an element of governmental authority. This is the case, for instance, for the administration of PoW camps or civilian internment facilities. As indicated above (Commentary to Statement 2), the Detaining Power remains responsible for the treatment of the prisoners and the facilities must be placed under the authority of a State official. From this it can be derived that conduct in relation to the running of the PoW camp or internment facility falls within the governmental authority of the Detaining Power. While it might outsource some of its activities, any activities in the camp or facility will be emanations of governmental authority.

Finally, it must be noted that, according to Article 9 of the ARS, in some situations such as revolution, armed conflict or foreign occupation,Footnote ¹²⁶ a State may be unable to exercise some elements of governmental authority. In those cases, it could be held responsible for the conduct of a private actor, including a PMSC and its personnel, “if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority”.Footnote ¹²⁷ For attribution under Article 9, no authorization by the State authorities or by national law is required as is the case for attribution under Article 5 of the ARS.Footnote ¹²⁸ Indeed, situations foreseen by Article 9 are those in which the regular authorities have been dissolved or abolished, are collapsing or are inoperative.Footnote ¹²⁹ Three conditions must be met for attribution under Article 9: the private entity's conduct must be related to the exercise of an element of governmental authority; it must be carried out in absence or default of the State authorities; and the circumstances must call for the exercise of these elements of governmental authority. For instance, conduct of people taking part in a levée en masse would fall under this category.Footnote ¹³⁰ The conduct of the Revolutionary Guards in the immediate aftermath of the revolution in the Islamic Republic of Iran has also been deemed as being covered by the attribution principle embodied in Article 9 by the Iran–United States Claims Tribunal.Footnote ¹³¹

d) Persons in fact acting on the instructions of a State or under its direction or control

Article 8 of the ARS states:

Some PMSCs or members of their personnel acting alongside the State authorities could fall under this category of person. The terms “instructions”, “direction” and “control” are independent of one another, so that any one of them is sufficient to establish State responsibility.Footnote ¹³³

On the instructions: instructions must be understood as clear orders for a certain task. This could be relevant, for instance, if PMSCs are subject to the orders of a military commander or other State official when they are operating alongside the armed forces. This does not mean that an order has to be given for the specific violation; rather, it need only be given for the specific task in the context of which the violation is being committed. If a PMSC employee is acting outside instructions, the State will nonetheless be responsible if the act is incidental to the task. In general a State should not bear the risk that lawful instructions are carried out in an unlawful way; but if persons have committed wrongful acts under the overall instructions of a State, the conditions for attribution may nonetheless be met if the acts are closely linked to the instructions.Footnote ¹³⁴

Under its direction or control: under this rule, a number of activities carried out by PMSCs could be attributed to the State that contracts them. What exactly “direction or control” means in international law will have to be further clarified over time. For the purpose of attribution under the rules of State responsibility, the ICJ requires that for an act of a private entity (be it an individual or a member of an organized group) to be imputable to the State, the direction or effective control of the authorities over that specific act must be demonstrated, and not only in general and in respect of the overall actions taken by the persons or groups of persons having committed the violations.Footnote ¹³⁵ In the absence of such control over the specific act, it cannot be imputed to the State, even when committed by a group with a high degree of dependency on the State authorities.Footnote ¹³⁶ In the same vein, the commentary to the ARS requires that the State directs or controls the specific operation.Footnote ¹³⁷ A mere contract between a State and a PMSC would probably not fulfil the requirement of effective control, since not all contracts between a State and a private company lead to control by the State authorities over all the specific activities of the private company. The situation of a local military commander having overall control over an area and the capacity to broadly direct the movements of PMSCs would probably neither qualify as effective control as required by the ICJ, in case the personnel of PMSCs committed violations without being specifically ordered on certain operations by the commander or other authority. Nevertheless, the ILC's Commentary states that “it will be a matter of appreciation in each case whether particular conduct was or was not carried out under the control of a State, to such an extent that the conduct controlled should be attributed to it”.Footnote ¹³⁸

Financial and material support as such does not seem to be sufficient for establishing control of a State over an entity:

As for actions going beyond the scope of authorization given by the State or its direction or control, the responsibility of that State for these actions may raise questions. These actions may trigger the responsibility of the State if they were incidental to the mission and did not clearly go beyond it.Footnote ¹⁴⁰ It will be a question of fact whether the State authorities still had control or could have exercised it.

However, the criteria of “global” or “overall” control has also been used on some occasions by tribunals,Footnote ¹⁴¹ the most significant case being the judgment of the International Tribunal for the Former Yugoslavia (ICTY) in the Tadić case. For the purpose of armed conflict classification, the ICTY held that where a group is organized, such as an armed opposition group, it is sufficient that the State authorities exercise “overall control” over such an organized and hierarchically structured group to consider that the group belongs to that State in the context of hostilities against another State and where that situation is an international armed conflict, without a need for the State's specific control or direction over the actions or omissions of the individuals.Footnote ¹⁴² While it is unlikely that a mere contract would be sufficient to find such overall control, a PMSC could be considered to be under the overall control of a military commander if the commander has broad control over their movements and the power to at least impede certain actions of the company. The ICTY has also acknowledged that where the controlling State is not the Territorial State, more compelling evidence is required to show that the State is genuinely in control of units and groups.Footnote ¹⁴³

Nevertheless, the ICJ has not yet established the “overall control” criteria as a sufficient basis for attribution under the rule of State responsibility and continues to require an effective control in that regard.Footnote ¹⁴⁴

8. Contracting States have an obligation to provide reparations for violations of international humanitarian law and human rights law caused by wrongful conduct of the personnel of PMSCs when such conduct is attributable to the Contracting States in accordance with the customary international law of State responsibility.

Where the act of a PMSC or its personnel is attributable to the State, the responsible State is under an obligation to cease the violation and ensure reparation for the injury caused by the violation.Footnote ¹⁴⁵ The obligation to afford reparation for unlawful conduct under international law is a long-standing principle of public international law.Footnote ¹⁴⁶ This reparation may take the form of restitution, compensation, satisfaction or guarantees of non-repetition.Footnote ¹⁴⁷ The responsible State has an obligation to compensate for the damage suffered by the State victim of the wrongful act, but also by all natural or legal persons. Footnote ¹⁴⁸

The broad formulation of this statement is used to reflect the different legal consequences that arise under different treaties or bodies of law. For instance, for violations of IHL in international armed conflict, reparation is regulated by Article 3 of Hague Convention IV and Article 91 of AP I. The obligation to pay compensation under IHL should be distinguished from individual criminal responsibility arising from the commission of grave breaches. It should be noted that violation of any rule of IHL, be it a grave breach or not, gives rise to an obligation of reparation.Footnote ¹⁴⁹ The obligation of States to make full reparation for loss or injury caused by violations of IHL for which they are responsible is also a rule of customary law in both international and non-international armed conflicts.Footnote ¹⁵⁰ Articles 3 of Hague Convention IV and 91 of AP I only address the responsibility to pay compensation and not the question of who is entitled to such reparation. Although IHL does not limit the right of victims to reparation, this issue remains contentious, and doctrine and jurisprudence vary in this regard. Factors such as the preclusion of individual claims under peace settlement, sovereign immunity, or the non-self-executing nature of the right to reparations under international law have in many cases prevented victims from successfully bringing their claims.Footnote ¹⁵¹ However, “[t]here is an increasing trend in favour of enabling individual victims of violations of international humanitarian law to seek reparation directly from the responsible State”.Footnote ¹⁵² Developments in international criminal law also provide an opening for victim's claims.Footnote ¹⁵³

In IHRL, the obligation to provide for reparation is regulated in the respective human rights treaties and the right of individual victims to remedy is expressly recognized (see also Commentary to Statement 4).Footnote ¹⁵⁴ Article 75 of the Statute of the International Criminal Court (ICC) recognizes the right of victims to reparation, including restitution, compensation and rehabilitation.Footnote ¹⁵⁵

B. Territorial States

9. Territorial States have an obligation, within their power, to ensure respect for international humanitarian law by PMSCs operating on their territory, in particular to:

1. a) disseminate, as widely as possible, the text of the Geneva Conventions and other relevant norms of international humanitarian law among PMSCs and their personnel;

2. b) not encourage or assist in, and take appropriate measures to prevent, any violations of international humanitarian law by personnel of PMSCs;

3. c) take measures to suppress violations of international humanitarian law committed by the personnel of PMSCs through appropriate means such as military regulations, administrative orders and other regulatory measures as well as administrative, disciplinary or judicial sanctions, as appropriate.

The duty to ensure respect, as explained above,Footnote ¹⁵⁶ exists for all States according to Article 1 common to the four Geneva Conventions and Article 1 of AP I. As for the Territorial State, it has an obligation to ensure respect for IHL within its territory: it must, for instance, ensure that appropriate instructions are given to the competent authorities, especially the military, and must ensure that they are carried out. The undertaking to ensure respect for IHL also means a commitment to promoting compliance with IHL, for instance through the dissemination of IHL and the texts of the Geneva Conventions not only to the State's armed forces but also to the civilian population, in particular civilians working for the private military and security services industry. The Territorial State must also refrain from encouraging violations of IHL by PMSCs.

Under IHL there is an obligation to enact criminal legislation, but the duty to ensure respect for IHL does not goes as far as imposing a specific obligation on States to adopt legislative measures with respect to private companies whose activities affect persons in the context of an armed conflict, such as PMSCs. However, legislation to regulate the activities of such companies is a means of ensuring respect for IHL, and the Territorial State is in a particularly favourable position in this regard as it can enact domestic legislation restricting and controlling PMSC activities within its boundaries in order to ensure respect for IHL. It could do so, for instance, by determining which services may or may not be carried out by PMSCs or their personnel and by establishing a licensing system for companies operating on its territory, or for particular services or contracts. The licensing regime could include requirements for the PMSCs such as background checks of the companies, appropriate vetting of the companies' employees, adequate training, an internal disciplinary regime that can enforce respect for IHL, or cooperation with official investigations.Footnote ¹⁵⁷

As it contains details on the general obligation to respect and ensure respect for IHL, the Commentary to Statement 3 may also be relevant for Territorial States. The Commentary to Statement 11 below, on the obligation to provide effective penal sanctions in respect to grave breaches, may also be relevant here.

10. Territorial States are responsible to implement their obligations under international human rights law, including by adopting such legislative and other measures as may be necessary to give effect to these obligations. To this end they have an obligation, in specific circumstances, to take appropriate measures to prevent, investigate and provide effective remedies for relevant misconduct of PMSCs and their personnel.

States have an obligation not only to respect human rights, but also to ensure that all persons within the State's territory or jurisdiction will be protected against conduct of third parties that impairs the enjoyment of their human rights. Territorial States must ensure that activities of PMSCs will not infringe on the human rights of people within their territory or jurisdiction and, if a violation occurs, that their organs will conduct an investigation and provide effective remedies to the victims. The nature of the services carried out by PMSCs and their personnel and the context in which they often operate probably call for specific measures and good practices such as systems and procedures of authorization, monitoring and control of PMSCs and their personnel, legislation on the use of firearms, training requirements, and accountability mechanisms.

For instance, in its Report on Citizen Security and Human Rights, the Inter-American Commission on Human Rights provides guidance on measures to ensure respect for human rights that should be implemented by States where PMSCs are allowed by law to carry out activities:

The Commentary to Statement 4, which addresses the responsibility of the Contracting States to implement their human rights obligations, may also be relevant for Territorial States.

11. Territorial States have an obligation to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, grave breaches of the Geneva Conventions and, where applicable, Additional Protocol I, and have an obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches and bring such persons, regardless of their nationality, before their own courts. They may also, if they prefer, and in accordance with the provisions of their own legislation, hand such persons over for trial to another State concerned, provided such State has made out a prima facie case, or to an international criminal tribunal.

As is explained in the Commentary to Statement 5, States have an obligation to enact legislation to provide effective penal sanction in regard to the commission of grave breaches of the Geneva Conventions and AP I, where applicable.Footnote ¹⁵⁹ They also have an obligation to investigate, prosecute and punish serious violations of such grave breaches. They can choose to hand suspects over for trial to another State, in accordance with their national law, if this State has made a prima facie case, or to an international criminal tribunal.

As territoriality is the most common ground for jurisdiction and as victims, witnesses and evidence are generally located in the area where the crime has been committed, Territorial States have an important role to play in terms of prosecution and penal sanctions for perpetration of grave breaches. If a Territorial State is not in a position to investigate and prosecute grave breaches due to ongoing hostilities or a difficult post-conflict situation, it should cooperate with other States eventually asserting jurisdiction or with the international criminal tribunal.

The Commentary to Statement 5, which addresses this same obligation from the perspective of Contracting States, is also relevant for Territorial States.

12. Territorial States also have an obligation to investigate and, as required by international law, or otherwise as appropriate, prosecute, extradite or surrender persons suspected of having committed other crimes under international law, such as torture or hostage taking, in accordance with their obligations under international law. Such prosecutions are to be carried out in accordance with international law providing for fair trial, mindful that sanctions be commensurate with the gravity of the crime.

For the Territorial State, the obligation described above means that it has an obligation to investigate and, as the case may be, prosecute, extradite or surrender suspects of international crimes committed on its territory or involving suspects present on its territory. As victims, evidence and witnesses are generally located in the area where the crime has been committed, the Territorial State should cooperate with other States investigating or prosecuting suspects of international crimes committed on its territory.

If a Territorial State considers entering into agreements providing for immunity before its national courts for PMSC personnel acting on its territory (such as status of forces agreements), it has to ensure that no impunity results from that immunity, i.e. that in practice the perpetration of international crimes will be effectively investigated and, as the case may be, prosecuted, in whatever forum. This could be done, for instance, by ensuring that the Territorial State conditions the delivery of private military or security services on its territory to the existing legal basis for prosecution in the Home or Contracting State; or by ensuring that an agreement is being reached between the Contracting, Territorial and/or Home States to clarify which State or States will assert jurisdiction – for example, the Territorial State if the Home or Contracting State is unable or unwilling to prosecute crimes, or vice versa.Footnote ¹⁶⁰

The Commentary to Statement 6, which addresses this same obligation from the perspective of Contracting States, is also relevant for Territorial States.

13. In situations of occupation, the obligations of Territorial States are limited to areas in which they are able to exercise effective control.

International obligations of a State under occupation can be limited by the loss of effective control over a part of its territory. As previously mentioned (see Commentary to Statement 1), the occupying State or States bear specific obligations under IHL towards the occupied territory and its population. Furthermore, should the Occupying Power let the local authorities carry out some activities in the occupied territory, it remains under the obligation to ensure that the protection conferred by IHL to the occupied population is not adversely affected thereby.Footnote ¹⁶¹

Occupying Powers may have obligations comparable to those of Territorial States. If a territory is under occupation, the effective control lies with the Occupying Power, “the authority of the legitimate power having in fact passed into the hands of the occupant”.Footnote ¹⁶² Under the law of occupation, the Occupying Power has an obligation to “take all measures in his power to restore, and ensure, as far as possible, public order and safety” and has a number of obligations that come with its control over the territory.Footnote ¹⁶³ The Occupying Power may choose to delegate some activities to the local government. In such cases, the local government's obligations will be commensurate to the degree of authority delegated.Footnote ¹⁶⁴ However, the Occupying Power will always have a residual responsibility by virtue of its effective control over the occupied territory and will retain the overall responsibility vis-à-vis that territory, including for the competences it has transferred to the local authority.

C. Home States

14. Home States have an obligation, within their power, to ensure respect for international humanitarian law by PMSCs of their nationality, in particular to:

1. a) disseminate, as widely as possible, the text of the Geneva Conventions and other relevant norms of international humanitarian law among PMSCs and their personnel;

2. b) not encourage or assist in, and take appropriate measures to prevent, any violations of international humanitarian law by personnel of PMSCs;

3. c) take measures to suppress violations of international humanitarian law committed by the personnel of PMSCs through appropriate means such as administrative or other regulatory measures as well as administrative, disciplinary or judicial sanctions, as appropriate.

As mentioned above, the obligation to ensure respect for IHL is binding on every State, including States in whose jurisdiction PMSCs are incorporated. As stated by the ICJ in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory:

Measures that a State has to take in order to discharge its obligation to ensure respect will, in part, depend on its capacity to effectively influence the person or group of persons likely to commit violations. The geographical distance of the State from the events may make it more difficult for the Home State to actually prevent violations of IHL by a PMSC of its nationality.Footnote ¹⁶⁶ However, the risk of IHL violations should be a factor in assessing the due diligence obligation of a State. In this regard, due to the nature of the services offered by PMSCs and the fact that their employees often carry arms and operate in situations of violence, the Home State should take specific measures to ensure respect of IHL by PMSCs of its nationality. Of course, as noted above, Home States must also refrain from encouraging or assisting in violations of IHL committed by PMSCs or their personnel.

The Good Practices of the Montreux Document make recommendations on how Home States can take steps to ensure respect for IHL. For instance, they can establish a licensing or notification system for the companies or for the export of specific services, thereby imposing a number of requirements which would contribute to respect for IHL by PMSCs, such as background checks of the companies, appropriate vetting of the companies' employees, adequate training, an internal disciplinary regime that can enforce respect for IHL, or cooperation with official investigations.

The Commentary to Statement 3, which addresses this same obligation from the perspective of Contracting States, may also be relevant for Home States.

15. Home States are responsible to implement their obligations under international human rights law, including by adopting such legislative and other measures as may be necessary to give effect to these obligations. To this end they have the obligation, in specific circumstances, to take appropriate measures to prevent, investigate and provide effective remedies for relevant misconduct of PMSCs and their personnel.

Although its ability to do so may be limited when a PMSC is operating abroad, the Home State is nonetheless responsible for implementing its human rights obligations and ensuring that the activities of PMSCs of its nationality and their personnel respect human rights. Determining services that may be performed by PMSCs incorporated in the Home State's jurisdiction and establishing authorization systems and procedures are good practices that can be implemented by Home States in this respect.Footnote ¹⁶⁷ Home States may have a particular role to play in regard to investigations on human rights abuses committed by PMSCs of their nationality, and their personnel. Contracting States, Territorial States or other States may request the Home State's assistance when conducting investigation about alleged misconduct of a PMSC incorporated in its territory. Home States should cooperate with the authorities of these States in matters of common concern regarding PMSCs.Footnote ¹⁶⁸

In regard to accountability and remedies for victims, Home States should establish close links between their authorities granting authorizations to PMSCs and their representatives in countries where they operate and/or with authorities of Territorial and Contracting States. They should also provide for accountability mechanisms, such as civil liability, and should require PMSCs to provide reparation to victims in cases of improper or unlawful misconduct by the company or its personnel.Footnote ¹⁶⁹

The Commentary to Statement 4, which addresses this same obligation from the perspective of Contracting States, may also be relevant for Home States.

16. Home States have an obligation to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, grave breaches of the Geneva Conventions and, where applicable, Additional Protocol I, and have an obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches and bring such persons, regardless of their nationality, before their own courts. They may also, if they prefer, and in accordance with the provisions of their own legislation, hand such persons over for trial to another State concerned, provided such State has made out a prima facie case, or to an international criminal tribunal.

As indicated above (see Commentary to Statement 5), States commonly base their jurisdiction on the principles of territoriality, nationality of the victim, nationality of the perpetrator or protection of national interests or security. The domestic legislation of Home States has to provide for criminal jurisdiction over grave breaches of IHL committed by PMSC personnel.Footnote ¹⁷⁰ Home States could also consider providing for corporate criminal responsibility over grave breaches of IHL.Footnote ¹⁷¹

In this respect, the most relevant obligation for Home States is probably the obligation to search for persons alleged to have committed, or to have ordered to be committed, grave breaches of the Geneva Conventions, and to bring such persons, regardless of their nationality, before their own courts or to hand them over for trial to another State. This obligation particularly comes into play if personnel alleged to have committed grave breaches of IHL abroad, or directors involved in the decision or policy which has led to the perpetration of grave breaches, find themselves on the Home State's territory.

The Commentary to Statement 5, which addresses this same obligation from the perspective of Contracting States, may also be relevant for Home States.

17. Home States also have an obligation to investigate and, as required by international law, or otherwise as appropriate, prosecute, extradite or surrender persons suspected of having committed other crimes under international law, such as torture or hostage taking, in accordance with their obligations under international law. Such prosecutions are to be carried out in accordance with international law providing for fair trial, mindful that sanctions be commensurate with the gravity of the crime.

Although in general Home States have no, or limited, human rights obligations in respect to persons who are not on their territory or within their jurisdiction, it is worth recalling that international law may require that they investigate and prosecute persons or entities suspected of having committed international crimes. This is the case, for instance, under the CATFootnote ¹⁷² or the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED).Footnote ¹⁷³ States party to the Rome Statute also have an obligation to cooperate with the ICC in its investigations and prosecutions.Footnote ¹⁷⁴

The Commentary to Statement 6, which addresses this same obligation from the perspective of Contracting States, may also be relevant for Home States.

D. All other States

18. All other States have an obligation, within their power, to ensure respect for international humanitarian law. They have an obligation to refrain from encouraging or assisting in violations of international humanitarian law by any party to an armed conflict.

The obligation of all States to ensure respect for IHL entails the obligation of States, including States not party to an armed conflict, to take all possible steps to ensure that the rules are respected by parties to the conflict. It is described in the Commentary to the Geneva Conventions as follows:

All States have an obligation to refrain from encouraging and assisting in violations of IHL by other armed forces or armed groups. Also, all States should, if they become aware of violations of IHL, take steps to make the violations cease. They have a number of methods at their disposal, such as repression of grave breaches, mutual assistance in criminal matters, bilateral diplomatic interventions or multilateral mechanisms.Footnote ¹⁷⁶

The Commentary to Statements 3, 9 and 14, which address this same obligation from the perspective of Contracting, Territorial and Home States, may also be relevant for all other States.

19. All other States are responsible to implement their obligations under international human rights law, including by adopting such legislative and other measures as may be necessary to give effect to these obligations.

Although their relation to the activities of PMSCs may be more tenuous, and their capacity to prevent, investigate and provide remedies for misconduct by PMSCs and their personnel more limited, than Contracting States, Territorial States and Home States, other States are responsible for implementing their obligations under IHRL in this respect. Other States may be, for instance, States of nationality of the victims or of PMSC personnel or directors; States in which territory a person suspected of having committed international crimes is living or hiding; or States where a PMSC has assets or investments.

The Commentary to Statements 4, 10 and 15, which address this same obligation from the perspective of Contracting, Territorial and Home States, may also be relevant for all other States.

20. All other States have an obligation to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, grave breaches of the Geneva Conventions and, where applicable, Additional Protocol I, and have an obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches and bring such persons, regardless of their nationality, before their own courts. They may also, if they prefer, and in accordance with the provisions of their own legislation, hand such persons over for trial to another State concerned, provided such State has made out a prima facie case, or to an international criminal tribunal.

Under the Geneva Conventions and AP I, all States Parties have an obligation to enact legislation to provide effective penal sanction in regard to the commission of grave breaches.Footnote ¹⁷⁷ As noted above, “all other States” may include States of nationality of suspected perpetrators or States in whose territory they are present. All other States may also be States receiving requests for extradition or judicial cooperation from another State or an international criminal tribunal.

The Commentary to Statements 5, 11 and 16, which address this same obligation from the perspective of Contracting, Territorial and Home States, may also be relevant for all other States.

21. All other States also have an obligation to investigate and, as required by international law, or otherwise as appropriate, prosecute, extradite or surrender persons suspected of having committed other crimes under international law, such as torture or hostage taking, in accordance with their obligations under international law. Such prosecutions are to be carried out in accordance with international law providing for fair trial, mindful that sanctions be commensurate with the gravity of the crime.

As stated above (see Commentary to Statement 6), international law requires criminalization of a number of acts and omissions in the internal legal order of States. For instance, under the CAT and the ICPPED, each State Party shall take appropriate measures to establish jurisdiction over the crime of torture or enforced disappearance, inter alia, when the alleged offender is a national of that State, when the victim is a national of that State, or when the alleged offender is present in its territory.Footnote ¹⁷⁸ Any State may be the State of nationality of directors or personnel of PMSCs, of victims of international crimes committed by PMSCs or their personnel, or the State in which a person suspected of having committed international crimes is located. All States have to fulfil their obligation to investigate, prosecute, extradite or surrender persons suspected of having committed international crimes in relation to PMSC activities.

The Commentary to Statements 6, 12 and 17 may also be relevant for all other States.

E. PMSCs and their personnel

22. PMSCs are obliged to comply with international humanitarian law or human rights law imposed upon them by applicable national law, as well as other applicable national law such as criminal law, tax law, immigration law, labour law, and specific regulations on private military or security services.

PMSCs, as private legal entities, do not have obligations under IHRL treaties or under IHL unless, in respect to IHL, they are parties to an armed conflict.Footnote ¹⁷⁹ However, national legislation may impose on private entities such as PMSCs obligations derived from IHL or IHRL. For instance, as mentioned above, the national criminal law of some countries provides for corporate criminal responsibility for international crimes such as war crimes, crimes against humanity and genocide,Footnote ¹⁸⁰ and domestic law may provide for civil claims against private entities and individuals for violations of IHL and HRL.

PMSCs are obliged to comply with all the national legislation of the State in whose territory they carry out their activities and, as the case may be, with legislation of their Home State and Contracting State binding on them. States, whether Contracting, Territorial or Home, may adopt specific regulations on PMSCs limiting the scope of services that PMSCs can offer, submitting them to an authorization or licensing system or regulating the use and carrying of weapons.Footnote ¹⁸¹

23. The personnel of PMSCs are obliged to respect the relevant national law, in particular the national criminal law, of the State in which they operate, and, as far as applicable, the law of the States of their nationality.

PMSC personnel, like anyone else, are obliged to respect the relevant domestic law of the State in which territory they operate. If applicable to them when operating abroad, they should also respect the national law of their States of nationality (see Commentary to Statements 6 and 22). As mentioned above, in addition international law may require States to provide for criminal jurisdiction for international crimes committed by their nationals abroad.

The fact that a Territorial State grants immunity for PMSC personnel before its national courts does not discharge the latter from the obligation to respect the law of that State and not to perpetrate international crimes. Immunity is a jurisdictional privilege and not a license to commit crimes. States granting such immunity should ensure that investigations will be conducted and that persons suspected of having committed a crime will be prosecuted and, as the case may be, punished by authorities of other States, for instance the Contracting State or the Home State.Footnote ¹⁸²

24. The status of the personnel of PMSCs is determined by international humanitarian law, on a case-by-case basis, in particular according to the nature and circumstances of the functions in which they are involved.

One of the core principles of IHL is the principle of distinction between civilians and combatants. This distinction is fundamental, as civilians have to be protected against the effects of hostilities.Footnote ¹⁸³

IHL defines civilians negatively: “Civilians are persons who are not members of the armed forces.”Footnote ¹⁸⁴ In international armed conflicts, Article 4 of the Third Geneva Convention (GC III) establishes who is entitled to the status of prisoner of war and Article 43 of AP I provides a definition of “combatants”. Therefore, in this situation, any person not belonging to one of the following categories is a civilian:

Situations (1) and (2) are the most likely to apply to PMSC personnel.Footnote ¹⁸⁶ When they are not entitled to combatant status, members of PMSCs will be civilians.

The determination of the status of a person is of a great importance. Indeed, only combatants have the right to participate directly in hostilities;Footnote ¹⁸⁷ that is to say, they are immune from prosecution for their mere participation in hostilities, as long as they do not commit grave breaches of IHL or international crimes. They are also entitled to the status of PoW when they have fallen into the power of the enemy.Footnote ¹⁸⁸ On the other hand, they can be the object of attack at any time. Persons who are not entitled to combatant status will be civilians and as such will be protected against direct attacks,Footnote ¹⁸⁹ unless and for such time as they directly participate in hostilities.Footnote ¹⁹⁰ However, “their activities or location may … expose them to an increased risk of incidental death or injury even if they do not take a direct part in hostilities”.Footnote ¹⁹¹ Employees of PMSCs having the status of civilians accompanying the armed forces under Article 4(A)(4) of GC III are entitled to PoW status.Footnote ¹⁹²

In a non-international armed conflict, there is no combatant or PoW status. Therefore, for the purpose of the principle of distinction, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and are consequently entitled to protection against direct attack, unless and for such time as they take a direct part in hostilities. Members of organized armed forces of a non-State party to the conflict constitute the armed forces of that party and consist only of individuals whose continuous function is to take a direct part in hostilities.Footnote ¹⁹³

The status of PMSC personnel should be determined prior to their mission and members of PMSCs should be aware of their status under IHL and of the legal consequences of that status.Footnote ¹⁹⁴ PMSC personnel who are combatants should be identifiable as such.Footnote ¹⁹⁵

Although relating to another legal issue, i.e. State responsibility, the Commentary to Statements 7(a) and (b) may also be relevant as it addresses the question of PMSC personnel having the status of combatants under IHL.

25. If they are civilians under international humanitarian law, the personnel of PMSCs may not be the object of attack, unless and for such time as they directly participate in hostilities.

During an armed conflict, attacks shall be directed only against combatants and military objectives.Footnote ¹⁹⁶ Civilians shall be protected against attacks.Footnote ¹⁹⁷ To enjoy this protection against attack, civilians working for PMSCs must respect one condition: not to participate directly in hostilities. If they fail to respect this condition, they will lose their protection against attacks, but only for such time as they directly participate in hostilities.Footnote ¹⁹⁸

On the notion of direct participation in hostilities, the ICRC, after six years of expert discussions and research, published its Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, which aims to clarify the meaning and consequences of direct participation in hostilities under IHL.Footnote ¹⁹⁹ According to the Interpretative Guidance, for an act to constitute a direct participation in hostilities, three criteria must be fulfilled:

Diverse tasks provided by PMSCs may amount to a direct participation in hostilities. For instance, driving ammunition to the front line,Footnote ²⁰¹ providing intelligence of a tactical nature and directly related to military operations,

Recruiting military personnel or providing training or weapon maintenance services to the armed forces as such do not amount to direct participation in hostilities.Footnote ²⁰³ However, “where persons are specifically recruited and trained for the execution of a predetermined hostile act … such activities [can] be regarded as an integral part of that act and, therefore, as direct participation in hostilities”.Footnote ²⁰⁴

When the task they are carrying out constitutes direct participation in hostilities, PMSC personnel will lose their protection against attack for such time as they perform the task. In this regard, it should be pointed out that measures preparatory to a specific act of direct participation in hostilities, as well as the deployment to and return from the location of its execution, constitute an integral part of that act.Footnote ²⁰⁵

The fact that the performing of a specific service may cause PMSC personnel to become involved in direct participation in hostilities should be taken into account by the PMSC when concluding a contract, and its personnel should be informed of the risks and consequences of directly participating in hostilities and properly trained in this respect. Furthermore, the activities performed by PMSC personnel, and their location, may expose them to an increased risk of incidental death or injury even if they do not directly participate in hostilities.Footnote ²⁰⁶ In this respect, it would be advisable that they clearly distinguish themselves from combatants by avoiding wearing military-like uniforms, for instance.Footnote ²⁰⁷

26. The personnel of PMSCs:

a) are obliged, regardless of their status, to comply with applicable international humanitarian law;

IHL is binding on every individual in a context of armed conflict. The majority of rules are intended to apply to parties to the conflict and members of their armed forces. However, civilians also have to respect IHL when their acts are linked with the hostilities. Furthermore, the status of a person as civilian or combatant does not impact his or her criminal responsibility in regard to war crimes.Footnote ²⁰⁸ PMSC personnel should be aware of their rights and obligations under IHL and properly trained in this respect.

b) are protected as civilians under international humanitarian law, unless they are incorporated into the regular armed forces of a State or are members of organized armed forces, groups or units under a command responsible to the State; or otherwise lose their protection as determined by international humanitarian law;

As mentioned above, under IHL, civilians are persons who are not members of the armed forces of a party to the conflict.Footnote ²⁰⁹ In an international armed conflict, personnel of PMSCs are civilians unless they are either incorporated into the armed forces of a State or can be considered as members of the armed forces, groups and units which are under a command responsible to a party to the conflict (Article 43 of AP I).Footnote ²¹⁰ Personnel of PMSCs with the status of civilian accompanying the armed forces are also civiliansFootnote ²¹¹ (see Commentary to Statements 8 and 24).

PMSC personnel not having combatant status will be protected against attack unless and for such a time as they directly participate in hostilities (see Commentary to Statements 24 and 25). However, the status of a civilian does not change if he or she directly participates in hostilities. If civilians directly participate in hostilities they lose their protection against attack during their participation,Footnote ²¹² but do not thereby become combatants.

During a non-international armed conflict, as there is no status of combatant, personnel of PMSCs will be civilians protected against the attacks, unless and for such time as they take a direct part in hostilities. For the purpose of the principle of distinction, personnel of PMSCs working for an organized armed group belonging to a non-State party to the conflict and having a continuous combat function should be considered members of the armed forces of this non-State party and will lose their protection against direct attacks for the time that they exercise this function.Footnote ²¹³

c) are entitled to prisoner-of-war status in international armed conflict if they are persons accompanying the armed forces meeting the requirements of article 4A(4) of the Third Geneva Convention;

PoW status is granted to some categories of persons during international armed conflict when they fall into the hands of an enemy. Combatants are entitled to PoW status. Generally civilians are not, except when they are accompanying the armed forces of a party to the conflict and meeting the requirement of Article 4(A)(4) of GC III. This article defines those entitled to PoW status as:

However, as stated in the Commentary to GC III, the possession of a card is not an indispensable condition of the right to be treated as a prisoner of war, but rather a supplementary safeguard.Footnote ²¹⁵

According to Article 4(A)(5) of GC III, “[m]embers of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law”, will also be entitled to PoW status. PMSC personnel entitled to PoW status shall be treated according to the requirements of GC III.

PoWs having combatant status cannot be prosecuted for taking direct part in hostilities. The Detaining Power may, nevertheless, prosecute them for possible war crimes and other international crimes. Their detention is not a form of punishment, but rather aims at preventing them from further participating in the conflict. However, it should be remembered that civilians (including those entitled to PoW status under Articles 4(A)(4) and (5)) are not entitled to combatant privilege (i.e. having the right to directly participate in hostilities). Therefore, they do not enjoy immunity from domestic prosecution for lawful acts of war – that is, for having directly participated in hostilities while respecting IHL.Footnote ²¹⁶

d) to the extent they exercise governmental authority, have to comply with the State's obligations under international human rights law;

In their standards of behaviour, PMSC personnel exercising an element of governmental authority, as well as those acting as State agents, have to comply with the State's obligations under IHRL. They should be fully aware of the international obligations of the State on whose behalf they are performing their tasks and properly trained in this respect. Furthermore, domestic law may impose IHRL obligations directly on PMSC personnel exercising governmental authority.Footnote ²¹⁷

As they address related issues, the Commentary to Statements 4, 7(c), 8, 10, 15 and 19 may also be relevant.

e) are subject to prosecution if they commit conduct recognized as crimes under applicable national or international law.

PMSC personnel are obliged to comply with the national law of the Territorial, Home or Contracting State, or any other State when applicable. International law establishes individual criminal responsibility for numerous acts, including war crimes, genocide and crimes against humanity.

The involvement of an individual in the commission of a crime may take different forms. For instance, Article 25 of the Rome Statute of the ICC provides for individual criminal responsibility if a person commits a crime, orders, solicits or induces its commission, aids, abets or otherwise assists in its commission, in any other way contributes to the commission of such a crime by a group of persons acting with a common purpose, or attempts to commit such a crime. Individual criminal responsibility thus may cover a wide range of acts.Footnote ²¹⁸

In addition, it can be recalled that only combatants have the right to directly participate in hostilities and can benefit from immunity from domestic prosecution for acts committed in accordance with IHL, but which may constitute crimes under domestic criminal law. Civilians do not benefit from such immunity and can be prosecuted for every act constitutive of a crime that they commit: murder, manslaughter, homicide, assault, bodily harm, acts of negligence, etc. Therefore, PMSC personnel having a civilian status in an international armed conflict or working in the context of a non-international armed conflict are subject to domestic criminal prosecutions for acts otherwise lawful under IHL.

As mentioned, States granting immunity for PMSC personnel before their national courts should ensure that an investigation will be conducted, and that persons suspected of having committed a crime will be prosecuted and, as the case may be, punished by authorities of another State or other States.Footnote ²¹⁹

As it addresses related issues, the Commentary to Statement 23 may also be referred to.