Georgetown Security Law Commentary

Scholarship: "The EU, the European Court of Justice and the International Legal Order after Kadi"

"The EU, the European Court of Justice and the International Legal Order after Kadi" by Grainee de Burca (Fordham University School of Law).

Scholarship: "Europe, Guantanamo and the 'War on Terror': An Exchange"

In Survival (subscription), Sibylle Scheipers discusses the role of US President Barack Obama's moves to reform the detention system as a step towards renewing close transatlantic ties and facilitating transatlantic cooperation. But she also argues that it poses a difficult challenge to Europeans. Nigel Inkster, Robert Whalley, and Matthew Waxman comment, and Scheipers responds.

Scholarship: Various articles on Private Security Contractors

"Litigating Abuses Committed by Private Military Companies" (European Journal of International Law) by Cedric Ryngaert (Ludwig Maximilians University). The article identifies the jurisdictional opportunities and pitfalls of criminal (public law) and civil/tort (private law) litigation against PMCs in domestic courts. The focus lies on litigation for human rights abuses, with special emphasis on US proceedings. It is argued that, because the chances of success of tort litigation are, in fact, rather limited in the US, given the many procedural obstacles, the criminal law avenue may prove to be more promising. Also, criminal litigation may be preferable on the ground that criminal punishment sends a stronger accountability and deterrence signal than a mere money judgment.

"Individual Liability of Private Military Personnel Under International Criminal Law" (European Journal of International Law) by Chia Lehnardt (New York University School of Law).  This article examines the present status of private military personnel under international criminal law. Because the system of order and obedience essential to military entities cannot be simply presumed to exist within a private military company (PMC) or between a PMC and the hiring state, 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 the question of corporate criminal responsibility of the PMC itself. It argues 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.

"Passing the Buck: State Responsibility for Private Military Companies" (European Journal of International Law) by Carsten Hoppe (European University Institute).  Relying on the International Law Commission's Articles on State Responsibility, this article compares the responsibility of states for illegal conduct of their soldiers with that which states incur with respect to the illegal conduct of contractors they hire. It reveals a regulatory gap which states seeking to reduce their exposure to international responsibility can exploit. It is then argued that the conduct of certain contractors exercising coercive functions can be attributed to the hiring state under Article 3 of Hague Convention IV of 1907 and Article 91 of Additional Protocol I. Where this is the case, the state will be responsible for their conduct as it would be for that of its soldiers.

"EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility" (European Journal of International Law) by Nigel D. White (University of Nottingham) and Sorcha MacLeod.  The European Union has put pressure on its Member States to provide troops for the increasing number of EU peace operations being deployed to different areas of the globe. But with national militaries being rationalized and contracted the EU will inevitably follow the lead of the US, the UK, and the UN and start to use Private Military Contractors to undertake some of the functions of peace operations. This article explores the consequences of this trend from the perspective of the accountability and responsibility of both the corporation and the institution when the employees of PMCs commit violations of human rights law and, if applicable, international humanitarian law.

"A Corporate Alternative to United Nations Ad Hoc Military Deployments" (Journal of Conflict & Security Law) by Malcolm Patterson (University of Sheffield).  This article considers whether ad hoc UN peacekeepers might be augmented or replaced by private security contractors; and whether well-trained contractors might in future subdue by force those who inflict gross human rights abuses on others. There exists no compelling reason in law why the UN should not devise modern contracts that evolve from historically ubiquitous arrangements amongst its members. The deployment of disciplined, professional contractors under rigorous conditions may offer improvements on present standards of peacekeeping.

"Humanitarian Assistance and the Private Security Debate: An International Humanitarian Law Perspective" by Benjamin Perrin (University of British Columbia).  The implications of humanitarian organizations using private security companies for defensive armed protection have been relatively unexplored, particularly with respect to international humanitarian law. This paper aims to address this shortcoming by considering two threshold questions: is the protected status of humanitarian personnel under international humanitarian law suspended or lost if they use armed private security contractors; and, is humanitarian access to provide relief legally affected by the decision to hire a private security company for armed protection of relief consignments?

Scholarship: "Universal Jurisdiction and the Dilemmas of International Criminal Justice: The Sabra and Shatila Case in Belgium"

"Universal Jurisdiction and the Dilemmas of International Criminal Justice: The Sabra and Shatila Case in Belgium" (Human Rights Advocacy Stories) Deena R. Hurwitz (University of Virginia Law).  This article discusses the background of the Sabra and Shatila prosecution in Belgium.  In 2001 Belgium applied its statute for universal jurisdiction over grave crimes against international law to prosecute Ariel Sharon and others for Israel's role in the 1982 massacres of Palestinians in the Beirut refugee camps of Sabra and Shatila. Although the Belgian Supreme Court upheld the jurisdictional basis of the statute, under intense American pressure, the Belgian parliament responded shortly thereafter by passing a new law, effectively eliminating the universal jurisdiction provision by requiring that victims or alleged perpetrators have some nexus with Belgium. The article uses the intricacies of the case to examine how law and politics may become inextricably intertwined in human rights cases. HT to National Security Advisors.

Scholarship: "Private-Public or Public-Private? Strategic Dialogue on Serious Crime and Terrorism in the EU"

"Private-Public or Public-Private? Strategic Dialogue on Serious Crime and Terrorism in the EU" (Security Journal, August 2008) by Nicholas Dorn (Erasmus University Rotterdam - School of Law, School of Social Sciences, Cardiff University), and Michael Levi (Cardiff University).  The paper reports on an EU qualitative study intended to help to improve strategic, pan-European security dialogue and partnership between the private and public sectors.  It suggests that security cooperation, hitherto conceptualized as public-private (public sector lead), should be understood as private-public, as security serves economic concerns. Hat tip to National Security Advisors.