!! draft !! Preface 4 introduction 9 chapter one 19

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“The death toll from small arms dwarfs that of all other weapons systems — and in most years greatly exceeds the toll of the atomic bombs that devastated Hiroshima and Nagasaki. In terms of the carnage they cause, small arms, indeed, could well be described as ‘weapons of mass destruction.’ Yet there is still no global non-proliferation regime to limit their spread, as there is for chemical, biological and nuclear weapons.”

- Kofi Annan403
In this chapter we will take a broad perspective, a departure from the prevailing practice of studying international humanitarian law from a narrow angle of vision. Our emphasis will be on some of the new developments in contemporary armed conflict, the economic apects of warfare and their implications for humanitarian law. We will study the changing nature of warfare, the economic incentives provided by contemporary wars for various actors as well as the latter’s opportunities in a globalized economy. There will be a particular focus on the exploitation of natural resources and the arms trade. At the end of this chapter, I will take up the issue of responsibility.
Basing themselves on the ideas of Immanuel Kant, many free-trade theorists have argued that opening up economies has a pacific effect because – through division of labour and specialization in only a few commodities – nations become interconnected and, more importantly, interdependent. Living standards would rise because each nation would concentrate on the commodities that it can produce most efficiently, which are then traded for commodities for whose production it does not have the necessary resources. Waging war would then be irrational because the costs of war and of lost trade would be disproportionately greater than any gains that might accrue through war. The homo economicus approach tells us that peaceful relations are economically rational because war costs a lot more than it brings in404. From a macroeconomic point of view this is certainly true. But we must bear in mind that the opening up of economies and the great increase in trade relations has created, on the microeconomic level, opportunities for various private actors, including those who will benefit from war. These actors may have a genuine economic interest in supporting or instigating armed conflict. Many of the new actors discussed in this chapter benefit from the global economy. Regulation and overview are far from being comprehensive and the world’s harbours offer innumerable hiding places for all sorts of commodities.
For us, war in the context of a globalized economy is of great relevance: we want to know what the implications are for international humanitarian law. Against the background of the changing nature of war, four crucial issues are taken up and discussed in the following pages. First, a number of new actors have mounted the stage. Among them are private military and security companies whose numbers are growing rapidly. During the last two decades, the provision of private military services has become a multi-billion dollar industry. Today, these companies fulfil virtually every function that had once been the exclusive domain of the regular army. The second issue we are going to examine is the role of natural resources in contemporary armed conflicts. Trade in natural resources and access to international markets are essential conditions for financing and sustaining armed conflict in many places. Our third issue is the flourishing arms trade and the easy availability of arms: this has grave consequences for the nature and extent of armed conflict. Today, small arms and light weapons are seen as the “world’s real weapons of mass destruction”405. Fourth, I want to ask how responsibility should be assigned when those those weapons are used to commit war crimes. The issue of responsibility will be comprehensively treated in the concluding sub-chapter.

  1. The changing nature of warfare

A. The “new wars” thesis

Inter-State wars, as they were known in the nineteenth century and for a considerable part of the twentieth, are much less common now than in the past406. This is not to say that humankind has reached the end of military history, as it were. The hopefulness, even euphoria, of the immediate post-Cold War period is very much a thing of the past407. Armed conflicts still take place. But modern wars are often very different from those of the past.408 This, broadly speaking, is the thesis of those analysts who take the view that the nature of warfare has been profoundly transformed.
The “new wars”409, they argue, do not only involve States, who have lost their monopoly of warfare. Para-State and private actors, completely detached from State structures, now occupy the stage: local warlords, rebel groups, private military and security companies, international terror and criminal networks are only the most prominent among them. These non-State actors develop their own military and economic structures and, as a result, enjoy a great deal of autonomy.
The defining characteristic of the “new wars” is asymmetry410. Inter-State wars were – so the classic “model” – symmetric: they were contested by States who had a regular army at their disposal, a territory to defend and a population to protect against the enemy. In an asymmetric war, the parties do not have the same military capacity and do not employ the same tactics: the aim of the weaker party is to counteract an adversary’s strength by resorting to unconventional and often unlawful methods of war. As a result, even powerful States with strong armies struggle to cope with asymmetric strategies; they are tempted to respond with equally illegal means. Such wars are easy to begin and, for one side at least, low-cost. The terrorist attacks against the U.S. of 11 September 2001 and the subsequent counter strike – the US war against Afghanistan – have revealed how “cheaply” a war can be started. It turned out to be a formidable challenge – even for the most powerful nation in the world – to wage war against an ostensibly weaker adversary. Fundamental inequalities in force, size, weapons, strategies, resources, legitimacy, etc. are an attribute of virtually all new wars.
One of the grimmest developments in contemporary warfare – particularly from the perspective of humanitarian law – is the rising toll exacted on civilians. Those who endure the consequences of war are not, primarily, combatants, but civilians. The prototype conventional war is characterized by battlefields and frontlines that are clearly delineated: it begins with a declaration of war and ends with a peace treaty. In “new wars”, there is no such delimitation. These wars can be waged anywhere: they are often fought in densely populated areas where it is impossible to separate combatants from civilians.411 The fighting seldom takes place at close quarters; and the possibility of a decisive battle that would break the will of one of the warring parties, and bring an end to hostilities, does not exist. Also, such wars sometimes create economic opportunities or new living arrangements. In these instances, neither side may be interested in peace. That is why, in certain circumstances, the chances that such a conflict will end decisively are rather slim. As we shall see in more detail below, combatants, while not slaughtering one another, deliberately make civilians the targets of their violence, which includes genocide and forced displacement. Some of the “new war” analysts argue that as a result of the “deregulation of war”, combatants show fewer scruples now. For them, international humanitarian law has no meaning: some have not even heard of it. The international law of war has become as irrelevant as national military rules of conduct412. It should come as no surprise that “new wars” can be extraordinarily brutal, not least because the brunt of the suffering is borne by civilians.
The “new wars” thesis has gained much, but not unanimous, support. Some scholars in the field of international relations and some political scientists argue that the distinction between “new” and “old” wars is exaggerated and that the thesis is true only if “new” wars are compared to a particular model of war derived from the – geographically and temporally delimited – European experience of the nineteenth and early twentieth centuries413. And as the European model never really spread globally, it may be misleading to use it as a yardstick. The critics of the “new wars” thesis argue that there have always been fewer Inter-State wars than other types of war. And while asymmetric wars, as a consequence of the consolidation of nation States, have indeed disappeared from the European continent, they have continued to exist in the rest of the world. These critics regard comparisons between “new wars” and European wars of a particular period as dubious at best and meaningless at worst. They point out that anyone who chose to compare a contemporary civil war with, say, the colonial wars undertaken by Leopold II would discover a great many similarities between the two.

B. Implications for international humanitarian law

Our purpose in taking up the “new wars” debate is not to decide which side is more persuasive. As students of international law we may permit ourselves to leave this question to historians and political scientists. What is most interesting for our purpose is that even the critics seem to agree that the typical European war of the nineteenth century, and the first half of the twentieth, differed fundamentally from most contemporary armed conflicts. If we accept this, what are the implications for international humanitarian law? Has not international humanitarian law been built on exactly the European model of inter-State war? And since it has, should humanitarian law be reconsidered?414
Some of the most prominent authors of the “new wars” thesis are of the view that, if inter-State war is in fact becoming obsolete, then international law, and international humanitarian law in particular, may be well on their way to become irrelevant415. Other, more thoughtful observers point to the growing role international humanitarian law plays in internal armed conflict and in occupied territories; they also refer to the growing interconnectedness of international humanitarian law with international human rights law and the newly created judicial mechanisms as means to implement the rules and principles of international humanitarian law416.
However, it is true that in an asymmetric conflict respect for international humanitarian law is endangered to a certain degree. If in a symmetric conflict there is a greater chance that humanitarian law is respected, this is is at least partly out of the fear that the adversary may retaliate in kind to any violations of the law. Some observers go so far as to say that in asymmetrical wars, “the expectation of reciprocity is basically betrayed and the chivalrous ethos is frequently replaced by treachery“417. A weaker party, owing to its inferior capacity, can do no harm to the “hard targets” of its adversary. It concentrates on “soft targets”: i.e. it directs its violence mainly against defenceless civilians.418 Furthermore, it is not entirely unusual for members of the weaker party to a conflict to hide among civilians, thus putting at risk the principle of distinction between combatants and civilians – one of the basic principles of humanitarian law. One analyst concludes:

“As the warring parties are increasingly unequal and the principle of equality of arms does not apply to them, they have disparate aims and employ dissimilar means and methods to achieve their goals. Whereas classic international armed conflicts between States of roughly equal military strength are becoming the exception, internal wars are mostly fought between adversaries that are unequal in many respects. The militarily weaker party to such an asymmetrical war may be tempted to employ unlawful methods in order to overcome the adversary’s strength and exploit its weakness.”419

In an asymmetric conflict, a stronger party, too, has less incentive to abide by international humanitarian law: it is beyond the reach of conventional military attack and does not have to fear retaliatory acts against its combatants. The most obvious examples are aerial warfare and remote-controlled warfare against a much weaker adversary: the war against Afghanistan in 2001 comes to mind immediately. In short, the asymmetric structure of a conflict lowers both sides’ willingness to respect humanitarian law.
From a normative standpoint, such attitudes – on both sides – merit condemnation. International humanitarian law explicitly forbids any retributive violation of its provisions. Negative reciprocity of this sort has no place in human rights and humanitarian law. The Vienna Convention on the Law of Treaties makes it clear that the idea of reciprocity “do[es] not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.”420 And Additional Protocol I to the Geneva Conventions again explicitely prohibits reprisals against the persons and objects protected.421 In other words, all the parties to a conflict are obliged to respect the basic rules and principles of international humanitarian law.
The following observation encapsulates the immense challenges confronting humanitarian law at present:

“Behaviour that was proscribed according to the classical rules of warfare and codified in the laws of war in the late nineteenth century and early twentieth century, such as atrocities against non-combatants, sieges, destruction of historic monuments, etc., now constitutes an essential component of the strategies of the new mode of warfare.”422

  1. New actors

One of the features of armed violence since the 1990s is the emergence of a number of new actors and, in some cases, the reappearance of older actors. This has created new challenges for international humanitarian law. I have already briefly mentioned warlords, rebel groups and international terror and criminal networks and would like to concentrate now on a particular sort of actors the number of which has multiplied in recent years.

A. Private military companies and economic interests

Private military and security companies (PMCs or PMSCs) are organized like private corporations and, like any other company, their main aim is to be profitable. They offer a range of services: from constructing military camps, providing military and police training, logistical and intelligence services and technical support for weapons systems, protecting property, and maintaining military prisons, to taking a direct part in combat operations423. Escalating demand for military services have created an impressive market for these companies. In 2003, an expert estimated that the industry had “a hundred billion dollars in annual global revenue”424. But what makes them able, we may wonder, to provide all those services? The answer is fairly simple: they buy military equipment and hire professionals and other personnel – named “private contractors” by some and “mercenaries” by others – who provide their know-how and combat experience in exchange for an attractive salary that may rise to up to 1000 dollars a day425.
The mercenary’s profession is an ancient one. In the last 200 years, during the consolidation of nation States, it had been largely displaced by the State’s monopoly of power and the evolution of mass armies. After the end of the Cold War, however, there has been a revival of “mercenarism”. Significant numbers of men and women, employed by PMCs, have participated, and are still participating, in armed conflicts in various parts of the world. Though the first modern companies of this kind were created in the late 1980s, ”mercenarism” really came into its own only after 11 September 2001, and with the onset of the wars against Afghanistan in 2001 and Iraq in 2003. PMCs have sprung up in their hundreds, most of them headquartered in the United States, Great Britain, South Africa, Australia and Canada. In Iraq, the United States depends heavily on military services provided by these private firms. The precise number of the companies and contracted private persons providing military services in Iraq is unknown. The Pentagon’s estimates put the number of private contractors in Iraq, as of 2006, at 25,000; but a 2006 military census put the figure at 100,000. NGOs speak of “well over 200,000 U.S. government private contractors”426. Not surprisingly, the bulk of the services provided by the industry are purchased by the American government. But private firms, international organizations and even NGOs also make use of these services. It may be said that they buy security in order to protect their – beyond doubt very diverse – interests in conflict zones.
Iraq is currently the most lucrative market for the industry, followed, probably, by Afghanistan. But PMCs have not limited their activities to a few locations. In fact, they are now operating in more than 100 countries. Since the late 1980s and early 1990s, the largest PMCs have grown dramatically, with tens of thousands of employees on their payrolls and contracts worth billions of dollars. Kellogg, Brown & Root, better known as KBR, for example, boasts of being “the largest contractor for the United States Army”427 and “the world's largest defense services provider”428. In 2008, by its own account, KBR employed more than 50,000 people; and in 2007, the revenue from its provision of “support services to the U.S military” in Iraq alone amounted to approximately 4.35 billion dollars429. These numbers alone suggest how dramatically the private military industry has expanded in recent years.
The impact of private military companies on the course, and the outcome, of an armed conflict may be considerable. An example from the past may be instructive: the impact of an American-based PMC, Military Professional Resources Inc. (MPRI), on the Balkan wars430. This firm was given a contract by the Croatian government – worth 75 million dollars – to reorganize the routed Croatian army and train its officers. Within a few months, MPRI had formed a powerful force consisting of members of paramilitary groups and irregular militias, persons associated with organized crime, regular soldiers and policemen. Before launching their offensive against the Serbs, Croat leaders discussed the details with MPRI. The Serbian Republic of Krajina was taken within a few days. This was followed by ethnic cleansing: entire villages were destroyed and more than 100,000 persons forced to flee the territory. MPRI denied direct involvement in the operation. Military experts, however, agreed that the operation, which had the appearance of something taken from a NATO manual, would not have been possible without the involvement and assistance of the company. A few months later, the President of Bosnia, impressed by the company’s abilities, said that he would sign the Dayton peace agreement only if MPRI would build up the Bosnian army as well. That contract was worth 400 million dollars. This example, which amply illustrates the influence of PMCs, is not an isolated case: numerous other instances can be cited.
We may wonder whether the privatization of war does not undermine the State-centred international order established by the Peace of Westphalia, which was “designed to put an end to the privatization of wars in the seventeenth century”. What are the implications of this for the State-based model? What are they for public international law in general?431

B. Three challenges for international humanitarian law

Although it is the principal source of relevant rules in situations of armed conflict, international humanitarian law was not designed with private military contractors in mind. Their evolution poses a number of challenges to the law. We will briefly consider three of these challenges. The first challenge I would like to mention is of a general nature: entrusting the conduct of war to private firms is, at best, dubious. Are profit-seeking companies suited to manage situations in which conduct must be guided by ethical considerations and by the imperatives of humanitarian and human rights law?

In their activities and conduct companies are always guided by the profit motive. For example, KBR has been accused of sending their logistics personnel into conflict zones without proper training and without even the equipment to protect them from armed attacks. Many PMC employees who were sent to Iraq believed that they had been hired to do a “civilian” job. They were not, of course, and, tragically, some of them never returned home. Other companies have been accused of employing “trigger-happy” mercenaries and criminals who readily shoot at anything that they believe poses the slightest threat to the safety of those whom they guard. Since the unprovoked killings of 17 Iraqi civilians by Blackwater security contractors in a busy Baghdad square in September 2007, violations of humanitarian and human rights law by private contractors have once again come to the fore. Profit seeking may incite these companies to do all sorts of things, but respecting humanitarian and human rights law is clearly not among their priorities.

The second challenge for international humanitarian law is a serious one: the lack of accountability and responsibility. PMCs have neither status nor direct obligations under humanitarian law432. To date, no international tribunal has been granted jurisdiction over companies, a consequence of the traditional position that legal entities do not have responsibilities under international law433. This is not to say that a company could not be brought before a national court. However, the UN Working Group on the use of mercenaries recently reported that “PMSCs are at present rarely held accountable by effective oversight mechanisms at parliamentary levels, whether in the State that contracts them or in the countries where they operate.”434 With respect to reparations, experts are undecided “whether private actors such as PMCs are under an obligation to make reparation where they commit IHL violations, or even that PMCs (…) can commit IHL violations.”435 Who then, we may ask, is to provide compensation for the damages inflicted? And who is responsible for violations of humanitarian law committed by PMC staff? There is no doubt, of course, that employees of PMCs, like other individuals, have obligations under international humanitarian law. They are liable to criminal prosecution for any serious violation committed by them. In reality, however, proceedings against the staff of PMCs have been rare. In the Abu Ghraib prison scandal, for example, 11 soldiers were convicted on charges related to detainee abuse. However not a single person employed by CACI International, Inc. and other PMCs, interrogators who were involved in the scandal, has ever been charged with a crime, despite formal army investigative reports implicating several contractors in serious crimes at Abu Ghraib436. This complete impunity with regard to violations of humanitarian law and human rights law is proof that no political will exists at present to bring private contractors to justice.
In principle, control of the private military industry can be achieved by various mechanisms at various levels. One possibility is that such companies and their employees are submitted to national civil and criminal prosecution in the event of misconduct. Upon exhaustion of local remedies, recourse possibilities to an international dispute settlement mechanism to settle contractual or tortious disputes relating to PMC activities could be established. Such a mechanism would be open to states and victims of misconduct by PMCs, and it could take the form of an international arbitration centre (e.g. the Permanent Court of Arbitration) and of a standing or ad hoc international claims commission. In parallel to a two-level system of civil redress, the ICC’s jurisdiction might be extended to legal persons to complement national criminal punishment.437
The third challenge for international humanitarian law is the ambiguous legal status of the staff of PMCs. Members of government armed forces fall within the legal category of “combatants.” Their rights and obligations are specified in humanitarian law. The legal status of employees of PMCs and their consequent rights and obligations are uncertain. Their activities are various: some provide food to soldiers, deliver equipment to military camps or keep a close watch on civilian infrastructure; some maintain weapons systems; and some directly participate in combat operations. In addition, some private contractors dress like soldiers and carry their weapons openly while others wear civilian clothes. Therefore, some contractors might fall within the category of “combatants” and others might pass as “civilians.” Their status has to be determined on a case-by-case basis. We may wonder whether this is viable, because on the battlefield decisions have to be made quickly. Does not the presence of PMC staff blur one of the basic principles of humanitarian law – the distinction between “combatants” and “civilians”438? If so, it is certainly no exaggeration to say that the effectiveness of humanitarian law is thereby impaired.

C. Reminding States of their obligations

If the “moralities of business firms [can not] be necessarily expected to accommodate such niceties as the laws of war”439 what could bring back into play this essential body of law? How can the serious lack of accountability and responsibility in privatized warfare be addressed? And what is the precise legal status of the staff of PMCs. These questions were recently discussed in a number of fora. For instance, the Swiss government and the International Committee of the Red Cross have launched an initiative to clarify the obligations of States, PMCs and their staff under international law. The resulting Montreux Document recalls the existing legal obligations of the relevant actors and partially debunks the common belief that PMCs operate in a legal vacuum440.
States bear the main responsibility for the respect of international humanitarian law. According to Article 1 common to the four Geneva Conventions they “undertake to respect and to ensure respect for the present Convention in all circumstances”. States must protect everyone from those who undermine humanitarian law. They are responsible for any failure to enforce humanitarian law because it has not only an obligation to respect, but also an obligation to ensure that the law is respected. States therefore have to regulate the activities of non-State actors in order to ensure that international humanitarian law is respected.
The Montreux Document, adopted at an international conference in autumn 2008, reaffirmed that delegating tasks to a PMC does not relieve a State of its responsibilities:

“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.”441

The document goes on to say that contracting States, States on whose territory such companies operate, States on whose territory they are registered, and all other States “have an obligation, within their power, to ensure respect for international humanitarian law by PMSCs”442. Contracting States, more precisely, have an obligation to:

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

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

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.”443

Furthermore, they 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.”444

In addition to an outline of the existing international and national legal obligations of States, PMCs and their personnel, the Montreux Document includes some 70 recommendations, derived from good State practice and designed to assist States in complying with their international legal obligations.
Legal scholars, governments and NGO representatives have also proposed a number of measures to close the existing “accountability gap”. Describing all of them in detail would obviously exceed the space available here. I shall mention just a few examples to give a rough idea of the direction taken by them:

    • allocate licences to PMCs only under certain conditions, including vetting and screening of personnel, adequate training of staff, and transparency with respect to services offered;

    • put in place adequate accountability mechanisms at the national level;

    • set up structures of international supervision in order to improve compliance with international law, particularly international humanitarian law445.

Other initiatives call for the industry to regulate itself446. The idea is to develop an international code of conduct for PMSCs based on international humanitarian law and human rights law. Military companies would willingly bind themselves to self-imposed corporate obligations. In order to make the normative standards effective, monitoring and accountability mechanisms are necessary, to ensure implementation of and compliance with the obligations that have been assumed. The purpose of such a code of conduct is to make certain that companies comply with humanitarian law and human rights law. Achieving broad acceptance among PMSCs of an ambitious code of conduct will not be an easy task. Despite all the honourable efforts of private self-regulation, we must keep in mind that States bear the main responsibility for the respect of international humanitarian law. We will tackle the issues of responsibility and accountability in a more comprehensive way in the concluding sub-chapter.

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