The level of organizational control was a key issue in the Behrami case of , 47 when the European Court of Human Rights identified that the failure to clear up cluster bombs in Kosovo in the period after Serb withdrawal in June was attributable to the UN, and not France as a contributing nation to the NATO force KFOR whose troops were deployed to the area in question. Though the UN administration of Kosovo UNMIK did have responsibility for mine clearance at the time of the explosion, it is doubtful whether it, and not France or KFOR , was in control of the conduct in question or the area in which the bombs were located.
While coalitions of the type authorized in Korea and the Gulf were subject to limited Security Council control and remained outside any revised test of attribution, peace-keeping and peace operations even with Chapter VII mandates should be within it unless it is shown that the level of control is inadequate. Simply put, if an organization authorizes a peace operation and purports to exercise control over it, it should bear the responsibility for acts or omissions of individuals, whether troops drawn from contributing states or employees of PMCs working within that operation, if those acts or omissions violate norms of international law.
The International Court of Justice has adopted a stronger test of attribution for acts of individuals in relation to states in the Nicaragua case of , reaffirmed in the Bosnia v.
Serbia decision of The latter, though, better reflects the realities of the growth of non-state actors in international law, whether insurgents, terrorists, 53 or PMCs who may not necessarily be the agents of the state, but may well be under sufficient influence of and control by a state or organization. Whatever the merits of the different approaches, it appears that in peace-keeping practice institutional responsibility is engaged when the institution is in overall control of the conduct in question.
The fact that peace operations consist of state contingents signifies that it is unrealistic to expect the UN to have effective control of the operation in all its aspects, since issues of national command get in the way of achieving that high standard. Thus when one considers the attribution of acts or omissions of PMCs to organizations, the fact that the organization may not exercise complete control over them should not necessarily be a bar to imputing responsibility.
The absence of an equivalent provision to Article 8 of the Articles on State Responsibility in the Draft Articles on Institutional Responsibility may be seen as leaving a lacuna into which PMCs could fall. It might be argued though this is not the interpretation given above that private contractors do not to fit into the general rule of attributability in draft Article 4, and there is no separate provision for attribution of the conduct of individuals.
The Special Rapporteur thought that the terms of draft Article 4 were broad enough to exclude the need for an equivalent provision to Article 8 on State Responsibility, concluding that the reference to the practice of the organization in defining the rules of the organization in draft Article 4.
Practice on peace-keeping may be pointed to as requiring the same standard to be applied to analogous individuals such as PMCs working alongside peace-keepers. Furthermore the ILC makes it clear that it sees no need for a similar provision to Article 8 of the Articles on State Responsibility since, if a person acts under the instructions or under the direction or control of an organization, he or she would be regarded as an agent within the definition of draft Article 4. In conclusion, where the EU has authorized a peace operation and purports to exercise some, though not complete, control over it, the acts or omissions of troops and PMC employees should be attributable to the organization if they amount to breaches of human rights law or, if appropriate, international humanitarian law.
This reflects the reality that organizations such as the EU do not exercise effective control over peace operations undertaken under their authority. Of course this does not mean that a higher standard of control is not desirable or achievable. Indeed, the EU or UN may be able to control PMCs more effectively by means of detailed contracts containing mechanisms of accountability than they can the contingents of member states. Even for those operations not under the overall control of the organization there may still be responsibility on the part of the organization, not for the violations in question but for the lack of due diligence in preventing or responding to such violations.
The above analysis shows the possibilities of imputing acts of PMCs to organizations such as the EU, and this to a certain extent partially fills the gap left by the lack of direct international legal responsibility of corporations. However, the situation remains unsatisfactory for the victims of PMC abuse in the sense that it is still not possible to establish the liability of corporations directly for breaches of international law, making it necessary to consider alternative mechanisms of accountability under the developing idea of corporate social responsibility CSR.
One of the most important CSR instruments to emerge is the OECD's Guidelines for Multinational Enterprises the Guidelines which consist of voluntary recommendations regarding social and environmental standards. Although the Guidelines are non-binding, states are obliged to set up National Contact Points NCPs in order to implement and promote the Guidelines among all corporations operating in or from their territory, which would include PMCs.
Notwithstanding the stakeholder participation approach utilized by the OECD, the fact remains that the Guidelines are voluntary in nature and limited in scope and that their value is predicated upon the effectiveness of the NCPs. It is important to note that while the GC appears to adopt voluntarism wholesale, it has also adopted and maintained a participatory stakeholder approach. Corporations of all sizes and civil society representatives are involved.
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It has been successful in involving ostensibly large numbers of participants as there are currently 5, participants in the Global Compact, of which there are 4, corporate participants from states. Establishing a truly collaborative network is important for engaging especially wide, indirect stakeholder participation.
How to Bring the Troops Home and Internationalize the Peace
The GC itself is composed of Ten Principles to which corporate participants are asked to adhere. They address human rights, labour standards, the environment, and corruption, but not international humanitarian law, and apply to corporations on a voluntary basis. As the GC is not a legally binding regulatory instrument the Ten Principles are drafted in indistinct terms and obviously the GC cannot be enforced before a court. It is nonetheless important to note that the Ten Principles are founded on acknowledged international human rights norms.
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Furthermore, companies which commit to the GC are required to give further assurances that they will promote the Compact via corporate documentation, e. The nature of PMC activities demands that any regulatory attempt must make reference to both human rights and humanitarian law standards. A key omission, therefore, is any reference to international humanitarian law which consequently limits the relevance of the GC to PMCs. In any event there are further general concerns about the GC's lack of enforcement mechanism which renders the GC open to abuse.
Nevertheless corporate abuse of the GC logo resulted in improvements to the GC's integrity measures in relation to the use of the GC's name and logo. Despite its inherently voluntary nature there are a variety of mechanisms built into the GC to try to ensure compliance. So, for example, corporate participants are obliged to submit annual concrete examples of measures undertaken to comply with the Ten Principles. These examples must be posted on the GC website to ensure that there is an element of transparency in the process. After the early teething problems, by the GC had registered its most successful quarterly reporting period, with companies submitting a Communication on Progress, representing a 41 per cent increase on To begin with, the military, security, and defence sectors appear to be omitted from categories of participating companies.
In total, there are currently non-communicating companies, inactive companies, and, rather alarmingly, companies which have been permanently delisted. The GC has no weapons at its disposal to demand compliance with its voluntary reporting requirements, so companies may act with impunity.
Nevertheless, the GC has responded positively to genuine stakeholder concerns about the high non-compliance rate, although time will tell whether or not it will have a positive impact on corporate behaviour. There is a risk that it will merely encourage transnational corporations to focus on the style, rather than the substance, of their submissions. What the GC experience demonstrates is that it is possible to operate a genuine stakeholder participatory approach to CSR. In other words, by involving civil society and by naming and shaming poor performers and promoting best practice through transparency mechanisms, the GC exhibits some positive regulatory approaches.
Conflict prevention has been a GC issue since its inception, absent any reference to humanitarian law. Furthermore there is almost no reference to corporations operating in a conflict zone, let alone PMCs, although it would be logical to conclude that PMCs would be covered by general CSR provisions. There was no reference to humanitarian law, PMCs, or conflict situations. This is a recurring criticism of the Commission's attitude to CSR. Critics also argued that the Commission's definition of CSR is flawed.
The reference to a wide variety of international legal instruments, such as the Universal Declaration on Human Rights, ILO Conventions, and the UN Convention on the Rights of the Child, has caused much confusion while there is no reference to any humanitarian law standards. There is, however, clear conflict between those who want regulation and those who do not, and the debate is framed in those terms. The Commission's response failed to address these issues and is largely couched in terms of voluntarism with no attempt to clarify the definition of CSR, including its extension to humanitarian law principles.
The Practical Guide to Humanitarian Law
In essence the Commission's position has not altered from its Green Paper position, to the annoyance of many stakeholders. While in the past NGOs and trade unions wanted the EU to create a concrete legal CSR framework, with all that such a framework would entail, their current position has changed. Now these stakeholders are seeking a combination or third way approach to CSR. A letter from the NGOs to the Commission and Council commented on the necessary steps for future progress: Taken together, the recommendations, if they are fully implemented by the relevant actors, will help to generate a significant advance.
For that to happen, it will be necessary to develop them into a proper framework that complements the voluntary commitment of a steadily growing number of companies with proactive and consistent public policies to create the right enabling environment and ultimately to ensure accountability by all companies.
Rather than seeking the imposition of strict legally binding instruments, NGOs are now seeking the establishment of compromise regulatory mechanisms. They have recommended, among other options, mandatory social and environmental reporting, redress mechanisms, extra-territorial application of human rights and labour standards, and a duty of care upon companies and their directors regarding social and environmental impacts. Such approaches appear to be supported by the European Parliament citing the weaknesses of self-regulation. Since the Commission's CSR strategy has been consistently censured on the basis, first, that there has been an unjustifiable reliance upon voluntarism and, secondly, that the interests of stakeholders have been marginalized and in some cases ignored.
Status of PMCs under International Humanitarian Law
The focus of the debate in this respect has now moved on from a simple dichotomy between voluntary and binding instruments, towards the overarching challenge of devising reporting tools and verification mechanisms to ensure proper compliance with CSR commitments. Notwithstanding such views, the EU remains a regulatory wasteland for bringing corporations to account for their behaviour in relation to both human rights and humanitarian standards.
Following from the above evaluation of both the hard and soft responsibility of organizations and PMCs, the article will turn to consider the remedies available against the EU if a breach of human rights or humanitarian law is attributable to the organization, and against the PMC if no attribution can be made. It is difficult to gauge whether the UN has been consistent, but there is no reason to assume that it and the EU will not compensate for damage caused by wrongs committed by PMCs under its authority and control.
Forms of reparation can include restitution to re-establish the position which existed before the wrongful act was committed , compensation covering any financially assessable damage, including loss of profits , satisfaction which may take the form of an expression of regret or a formal apology. The hit or miss forum shopping by victims as in Behrami is not satisfactory. There needs to be an increase in access to remedies, whether judicial, legal, or non-legal. The Kadi case before the European Court of Justice may show that victims of international wrongful acts committed by international organizations can obtain remedies and the opinion of the Advocate General argues for an even stronger approach, but access to the European Courts is not guaranteed.
If the complainants are from non-EU countries but in territory under the control of an EU operation, then responsibility for human rights abuses committed by EU forces or contractors employed by them may arise according to a number of European Court of Human Rights cases, though the question whether the Convention applies outside the European legal space is subject to an on-going debate. In general terms institutions do not have consistent or systematic mechanisms for claims to be made against them and remedies granted to those who have suffered loss as a result of a wrongful act committed by the organization or by its agents or those employed by it.
Regional courts apart, there is no international court that will countenance claims brought by victims of abuse, though it is possible that the activities of PMCs may well be subject to the scrutiny and criticism of the various treaty bodies created by human rights instruments, possibly as a result of an individual complaint.
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The World Bank Inspection Panel, created in , is a useful model that could be adopted to deal with the responsibility of the EU in its security operations. Matters of serious international concern should be subject to more general inquiries, such as those conducted by the UN into its failings in the Rwandan genocide of and Srebrenica in , but these should be followed up by the establishment of claims commissions enabling individuals to have access to justice. Finally the jurisdictional immunity of organizations before national courts should not be interpreted by the organization as giving it absolute immunity from local courts, but only a restrictive or functional immunity, so that only acts committed in the course of performing the functions designated to them by the organization should give immunity to organizations, their agents, and any contractors working for them.
Violations of customary human rights law or humanitarian law cannot be justified as being part of an organization's functions, and so immunity should not be claimed. Even if immunity is still applicable and there is no waiver of it by the executive head, the organization is still obliged to provide alternative methods for settling the claim.
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