War contexts : the criminal responsibility of private security personnel

Abstract

This paper explores the criminal accountability of Private Security Company (PSC) personnel in war contexts. It focuses on the legal position of PSC personnel, defined on the basis of the relationship linking PSCs to the hiring subject. The topic is analysed from two perspectives. First, the liability of PSC personnel for war crimes is considered. Secondly, attention is paid to the concept of ‘direct participation in hostilities’ as a possible excuse for PSC personnel in case of domestic criminal liability. The paper argues that, under certain circumstances, private security contractors can be de facto assimilated to subjects formally classified under IHL. In this light, the ambiguous legal status of private security personnel with respect to war should have a limited impact on criminal liability. In theory, the current national and international regulation affords multiple means to try PSC personnel. In practice, the unwillingness or incapability of States to prosecute proves a major obstacle for the efficiency of the system. By overcoming the frame of State sovereignty, the International Criminal Court (ICC) provides appropriate mechanisms for implementing the existing rules, but its jurisdiction is limited by the founding treaty.