The European Journal of International Law Vol. 19 no. 5 © EJIL 2008; all rights reserved
Individual Liability of Private Military Personnel under International Criminal Law
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Abstract |
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The article examines the present status of private military personnel under international criminal law. Perpetrators of international crimes are frequently integrated into a hierarchically structured collective, such as an army or police force. The system of order and obedience essential to the functioning of these entities, the existence of which underlies a number of principles of international criminal law, cannot be simply presumed to exist within a private military company (PMC) or between a PMC and the hiring state. As a consequence, the private nature of the company may become an issue, particularly when one considers the capacity of their personnel to commit war crimes or to incur superior or command responsibility. The article also considers problems of implementation and jurisdiction and touches briefly on the question of corporate criminal responsibility of the PMC itself. It will be argued that, in theory, international criminal law can be an efficient part of the legal regime governing the use and conduct of private military companies, although many of the legal issues discussed remain to be tested.
* Research Fellow, Chair for Public Law, Public International Law and European Law; DFG-Fellow, ‘Multilevel Constitutionalism’ Research Training Group, both at Humboldt University, Berlin. I thank Roger O’Keefe for valuable comments on an earlier draft.