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bound to respect fundamental human rights under the scrutiny of the international
community.”26 Certainly, the reality is that the use of private military contractors
and paramilitaries in internal and international armed conflicts, as well as in the
midst of internal violence that may not amount to armed conflict, which may be
the case in Ukraine, has grown to an unprecedented scale.27 The traditional notions
of international humanitarian law and international human rights law have been
evolving to include such non-State actors. Moreover, it can be claimed that the belief
that human rights law applies only to States, and not to paramilitary groups, private
military contractors, or unrecognized insurgents, is no longer persuasive.28 As such,
any of these actors should be held accountable for any violations of human rights, at
the least, which apply regardless of the nature of the conflict.
So how does international law deal with accountability for violations of international
law by PMSCs, paramilitaries or mercenaries? Absent territorial State action, in this
case by Ukraine, either from the breakdown of the legal system to the argument of
corruption and influence of powerful figures in the courts, the best option would be
either the International Criminal Court, which would not have jurisdiction at the
present time, or another State’s jurisdiction.29 While Ukraine, a non-ratified signatory
of the Rome Statute, gave the International Criminal Court jurisdiction over alleged
crimes committed in its territory between November 21, 2013 and February 22,
2014, and therefore certain people may be investigated or brought before the Court,
that jurisdiction is very limited in the types of crimes investigated and would not
cover any violations of international law occurring since February without further
action on the part of Ukraine.30 The ICC would only have jurisdiction over war
crimes, crimes against humanity, and genocide. Any possible allegations of aggression
by another State, as will be discussed further, would in no way be within the reach
of the Court. The International Court of Justice could certainly hear a case between
States, but would not have jurisdiction over an individual.
Alternatively, a special tribunal could be established or another State’s domestic
courts could take up the investigation and prosecution. The latter may be the most
26 Article X of the Institute for International Law’s 1999 Resolution, entitled “The Application of
International Humanitarian Law and Fundamental Human Rights, in Armed Conflicts in which Non-
State Entities are Parties.”
27 Christine Beerli, “A humanitarian perspective on the privatization of warfare,” 35th Round Table
on Current Issues of International Humanitarian Law, San Remo, 6-8 September 2012, Keynote
Address, International Committee of the Red Cross Resource Centre, September 14, 2012,
available at
statement-2012-09-06.htm
28 Andrew Clapham, Human Rights Obligations of Non-State Actors in Conflict Situations, 863
International Review of the Red Cross 491 (2006), at 503.
29 Ukraine has accepted the ICC’s jurisdiction, but only for a limited time period that ended in February
2014. International Criminal Court Press Release, “Ukraine accepts ICC jurisdiction over alleged
crimes committed between 21 November 2013 and 22 February 2014,” April 17, 2014, available at
30 Ibid.