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  • Print publication year: 2015
  • Online publication date: November 2017

Chapter VI - State Responsibility for Non-Compliance with Positive International Law Obligations


Who will be responsible for any repressive excesses that the security companies may commit against the civilian population…? Who will take responsibility for any violations of international humanitarian law or human rights they may commit?

Report of the Special Rapporteur on the question of the use of mercenaries


Examination of the ILC's Draft Articles on State Responsibility reveals that sole reliance on these provisions is not an effective tool for holding States responsible for the illegal activities committed by PMSCs. In determining State responsibility, the central focus of examination is the behavior of certain government officials acting on their own or in cooperation with others. In principle, the State is responsible for the conduct of those individuals, which exercise “its machinery of power and authority”. The purpose of the attribution on the basis of criteria established by international law is to determine whether a certain conduct, such as the illegal activities performed by individuals, is to be perceived as an act of State. This determination is required due to the fact that the State itself remains responsible for its own acts. The comparison of PMSCs with regular armed forces and the assessment of different types of attribu-tion indicate that the question of attribution of the unlawful conduct of PMSCs is not clear cut. An impression is created that States are less likely to be held responsible for violations of international law committed by private contractors than for crimes committed by their military personnel because the attribution of those violations realized by private actors to States proves to be more problematic. The practice of employing PMSCs by governments seems to indicate that it is not possible to attribute PMSC conduct that falls beyond the scope of State control or is ultra vires to States. The same goes for the attributability of illegal activities of the personnel of private contractors that do not belong to the official State military apparatus or exercise elements of governmental authority while acting off duty.

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