CYIL 2014

349

PRIVATE MILITARY CONTRACTORS, PARAMILITARIES AND MERCENARIES …

likely, if serious abuses amounting to human rights violations or war crimes were

committed. In such a case, Russian nationals, for example, (or any other country with

nationals harmed) may be affected, which would raise Russia’s passive personality

jurisdiction.

Alternatively, if Russia, or another neighboring country, felt its security,

integrity or economic interests were being threatened, then protective jurisdiction

could be triggered.

Finally, there could be an argument that mercenaries or PMSCs

(or perhaps the people directing them) could be subject to universal jurisdiction for

acts, such as war crimes, and then any country in the world could try and prosecute

such individuals.

There has been a growing support for universal jurisdiction over

certain serious offences. The principle of universal jurisdiction was “overwhelmingly

embraced” in September 2005 as world leaders formalized what is known as the

“Responsibility to Protect” in the UN Summit Outcome Document,

which

explained “that, if a State proves unable or unwilling to protect its own citizens from

genocide, war crimes, ethnic cleansing, and other crimes against humanity, then the

international community has the responsibility – not the right or the option – to

provide that protection.”

However, if individual liability is lacking, can or should accountability be achieved

through other avenues, such as State responsibility? A State may have liability if it is

found to have supported or acquiesced to the actions of the private individuals. If

Russia or the US, for example, or another country, are found to have provided such

support to private fighters, then the actions of the fighters or those directing them

will be attributable to the State. This was seen in the ICJ case of

Nicaragua v. United

States

of America

, which will be discussed in detail shortly. However, private military

contractors may or may not be traceable to a State, as States may wish to avoid

the international scrutiny of interfering in a conflict or responsibility for a possible

act of aggression, and therefore may not be subject to the same legal constraints

and accountability currently placed on States. For example, could Akhmetov’s acts

be attributable to Ukraine, Greystone’s acts to the US, or the acts of the Wolves’

Hundred to Russia? The answer is likely no, unless their actions could be found

to have been supported or endorsed by the State. Furthermore, it may be unlikely

that State accountability would even have the desired punitive or deterrent effect

on individuals. However, there are other options for accountability, most notably

in the corporate sector. In recent years, there has been an increase of efforts to hold

Anne-Marie Slaughter, Defining the Limits: Universal Jurisdiction and National Courts. In:

Universal

Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law

168, 172

(Stephen Macedo ed., 2006) (2004).

Ibid

Princeton Project on Universal Jurisdiction, The Princeton Principles on Universal Jurisdiction 1(1) 18

(2001),

available at

http://lapa.princeton.edu/hosteddocs/unive_jur.pdf.

G.A. Res. 60/1, 138-40, U.N. Doc. A/RES/60/1 (Oct. 24, 2005).

Genocide and the Rule of Law: Hearing on S. 888 Before the Subcomm. on Human Rights and the Law of

the S. Comm. on the Judiciary,

110

Cong. (2007) (statement of Lieutenant General The Honorable

Romeo A. Dallaire, Senator, Parliament of Canada, emphasis added);

accord

G.A. Res. 60/1, 138-39,

U.N. Doc. A/RES/60/1 (Oct. 24, 2005).