Search

Begin New Search Content Type Journal Article

10191. Passing the Buck: State Responsibility for Private Military Companies

Author:
Carsten Hoppe
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
States hire private military or security companies [PMSCs/contractors] in armed conflict and occupation to fulfil tasks formerly exclusively handled by soldiers, including combat, guarding and protection, and detention and interrogation. PMSC personnel, like soldiers, can and do violate or act incompatibly with International Humanitarian Law and Human Rights Law. Relying on the International Law Commission's Articles on State Responsibility, the article compares the responsibility of states for such conduct of their soldiers with that which states incur with respect to the conduct of contractors they hire. It reveals a regulatory gap which states seeking to reduce their exposure to international responsibility can exploit. Positive obligations of states under International Humanitarian Law narrow this gap to some degree. An analysis of the duty to pre-vent demonstrates that the potential of positive Human Rights Law obligations to bridge the gap – although important – remains limited by their due diligence nature, and problems of extraterritorial applicability. It is then argued that the conduct of certain contractors exercising coercive functions can be attributed to the hiring state as that of ' persons forming part of its armed forces ' in the sense of the customary provision enshrined in 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, which fully eliminates the regulatory
Topic:
Human Rights and Humanitarian Aid

10192. Individual Liability of Private Military Personnel under International Criminal Law

Author:
Chia Lehnardt
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
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.
Topic:
War

10193. Litigating Abuses Committed by Private Military Companies

Author:
Cedric Ryngaert
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
One of the main tools for ' socializing ' private military contractors (PMCs) is litigation. The threat of litigation may encourage contractors to set up their own corporate social responsibility and accountability mechanisms with a view to preventing them being hauled before courts. The article identifi es 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, the US being the home and hiring state of the majority of PMCs active in overseas confl ict zones. 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, if at least prosecutors show more leadership in bringing cases. Also at a deeper accountability level, criminal litigation may be preferable on the ground that criminal punishment sends a stronger accountability and deterrence signal than a mere money judgment.
Topic:
Human Rights

10194. 'We Can't Spy ... If We Can't Buy!': The Privatization of Intelligence and the Limits of Outsourcing 'Inherently Governmental Functions'

Author:
Simon Chesterman
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
Though it lags behind the privatization of military services, the privatization of intelligence has expanded dramatically with the growth in intelligence activities following the 11 September 2001 attacks on the United States. The recent confi rmation by the Director of the CIA that contractors have probably participated in waterboarding of detainees at CIA interrogation facilities has sparked a renewed debate over what activities it is appropriate to delegate to contractors, and what activities should remain ' inherently governmental ' . The article surveys outsourcing in electronic surveillance, rendition, and interrogation, as well as the growing reliance on private actors for analysis. It then turns to three challenges to accountability: the necessary secrecy that limits oversight; the different incentives that exist for private rather than public employees; and the uncertainty as to what functions should be regarded as ' inherently governmental ' and thus inappropriate for delegation to private actors.
Topic:
Government
Political Geography:
United States

10195. Softness in International Law: A Self-Serving Quest for New Legal Materials

Author:
Jean d'Aspremont
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
The concept of soft law which rests on the idea that the binary nature of law is ill suited to accommodate the growing complexity of contemporary international relations has been endorsed by a large number of scholars. It has however remained under the attack of those who are commonly portrayed as positivists. Although it does not seek to rehabilitate positivism as a whole, this article will try to offer a refreshed and modernized account of the positivist objection to soft law. It will accordingly distinguish several types of softness. Such a dichotomy will help to unravel the underlying agenda of some of the staunchest supporters of the concept of soft law. The article will ultimately expound on the proneness of international legal scholars to stretch the limit of their object of study by constantly seizing materials outside the realm of international law in order to alleviate the strain inherent in the contemporary proliferation of international legal thinking.
Topic:
International Law

10196. Thematic Procedures of the United Nations Commission on Human Rights and International Law: In Search of a Sense of Community

Author:
Wolfgang S. Heinz
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
This volume, originally a doctoral thesis by Jeroen Gutter of Utrecht University, offers a comprehensive overview of 26 years of thematic mechanisms of the UN Commission on Human Rights. The first mechanism was the working group on enforced or involuntary disappearances in 1980, created in response to human rights violations under the military dictatorships in Argentina (1976–1983) and in Chile (1973–1980) (at 82). The volume helps to close a research lacuna as only very few authors have to date dealt in detail with the UN thematic mechanisms (e.g. Pastor Ridruejo, de Frouville, Lempinen, Rudolf and Nifosi)
Topic:
Human Rights
Political Geography:
Argentina and Chile

10197. Exploring Social Rights: Between Theory and Practice

Author:
Ana Paula Barbosa
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
The book Exploring Social Rights, a collection of contributions to the subject from proven experts from all over the world, advances the view that social rights constitute 'a distinct category within the human rights system' (at 1). In general, this book aims at strengthening the protection of social rights as a legal category. It calls for a strong and active role of the state in assuring social rights. On this point it differs from most contemporary discussions which deny the importance of social rights and fear the expansion of judicial power.
Topic:
Human Rights

10198. Immunità e crimini internazionali. L'esercizio della giurisdizione penale e civile nei confronti degli organi statali sospettati di gravi crimini internazionali

Author:
Chiara Ragni
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
This book offers a thorough and detailed analysis of the doctrinal debate on the controversial question whether state organs are entitled to invoke any kind of immunity, before either international or national tribunals, when accused of committing or ordering the commission of international crimes, such as war crimes, crimes against humanity, and genocide. The problem is not merely a theoretical one, given that, since the end of the Second World War and in particular since the Pinochet Affair 1 (decided in 1999 by the British House of Lords), national judges from all over the world have been required to determine whether all state organs can benefit from immunity from jurisdiction and, if so, whether this can cover all the possible violations of international law, including the most serious ones. Initially, and as long as the courts could properly cope with the question of the immunity of former military officers, no problem seemed to emerge with regard to the possibility of judging the latter for crimes committed during a war; however, the choice seemed to be more controversial when the accused were high-ranking representatives of the state and the acts in question were performed in times of peace. The leading case in this regard was the above-mentioned Pinochet case, since it made clear the differing attitudes of judges according to the accused's rank in the state hierarchy and, as the author notes, according to whether or not the person in question was still in office. The debate which ensued with regard to those issues and to the controversial practice which had developed on the subject makes the book reviewed here particularly interesting. First, it has the merit of taking into account the different points of view expressed by scholars dealing with the topic and comparing them with the practice – described in a historical perspective – of international and especially of national courts and tribunals. Secondly, even though the literature on the subject of immunities is quite broad, this work stands out thanks to the author's original approach to the subject and to the accuracy of the analysis conducted.
Topic:
Crime and International Law

10199. The Future Control of Food: A Guide to International Negotiations and Rules on Intellectual Property, Biodiversity and Food Security

Author:
Caoimhín MacMaoláin
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
Food law and policy has recently shot to the top of many agendas. Much political, economic, and legal decision-making around the globe is concerned with its reform. Food safety matters have received attention in the European Union since the outbreak in the 1990s of 'mad cow disease', or BSE, culminating in the creation of many new rules and regulations. The formation of the European Food Safety Authority is one of the consequences of this trend. The World Health Organization has been actively coordinating the international response to actual and potential incidents of avian influenza and the related threat of the development of a deadly human strain of the disease. Regulating the production and marketing of genetically modified organisms has been the subject of fierce debate in many countries. In addition to all of this, trade in food is now central to several of the World Trade Organization (WTO) agreements, in particular the Agreement on Agriculture, the Agreement on Technical Barriers to Trade (TBT), the Agreement on Sanitary and Phytosanitary Measures (SPS), and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). These increased attention levels have intensified further as food prices continue to soar, raising serious concerns about global food security.
Topic:
Food

10200. Droit administratif européen

Author:
Stephan Neidhardt
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
The debate about the future of the European Constitution since the clash of the French and Dutch referenda in 2005 has partly eclipsed the interest in the administrative dimension of European integration. Considering the given situation of an enduring blockade in the European institutional reform process, the editors of the present handbook propose rather to focus on another essential aspect of the European integration project: the development of mechanisms belonging to a European administrative law, where the ' work still is in progress'.
Political Geography:
Europe