CYIL 2014

CAROLLANN BRAUM CYIL 5 ȍ2014Ȏ bound to respect fundamental human rights under the scrutiny of the international community.” 26 Certainly, the reality is that the use of private military contractors and paramilitaries in internal and international armed conflicts, as well as in the midst of internal violence that may not amount to armed conflict, which may be the case in Ukraine, has grown to an unprecedented scale. 27 The traditional notions of international humanitarian law and international human rights law have been evolving to include such non-State actors. Moreover, it can be claimed that the belief that human rights law applies only to States, and not to paramilitary groups, private military contractors, or unrecognized insurgents, is no longer persuasive. 28 As such, any of these actors should be held accountable for any violations of human rights, at the least, which apply regardless of the nature of the conflict. So how does international law deal with accountability for violations of international law by PMSCs, paramilitaries or mercenaries? Absent territorial State action, in this case by Ukraine, either from the breakdown of the legal system to the argument of corruption and influence of powerful figures in the courts, the best option would be either the International Criminal Court, which would not have jurisdiction at the present time, or another State’s jurisdiction. 29 While Ukraine, a non-ratified signatory of the Rome Statute, gave the International Criminal Court jurisdiction over alleged crimes committed in its territory between November 21, 2013 and February 22, 2014, and therefore certain people may be investigated or brought before the Court, that jurisdiction is very limited in the types of crimes investigated and would not cover any violations of international law occurring since February without further action on the part of Ukraine. 30 The ICC would only have jurisdiction over war crimes, crimes against humanity, and genocide. Any possible allegations of aggression by another State, as will be discussed further, would in no way be within the reach of the Court. The International Court of Justice could certainly hear a case between States, but would not have jurisdiction over an individual. Alternatively, a special tribunal could be established or another State’s domestic courts could take up the investigation and prosecution. The latter may be the most 26 Article X of the Institute for International Law’s 1999 Resolution, entitled “The Application of International Humanitarian Law and Fundamental Human Rights, in Armed Conflicts in which Non State Entities are Parties.” 27 Christine Beerli, “A humanitarian perspective on the privatization of warfare,” 35th Round Table on Current Issues of International Humanitarian Law, San Remo, 6-8 September 2012, Keynote Address, International Committee of the Red Cross Resource Centre, September 14, 2012, available at http://www.icrc.org/eng/resources/documents/statement/2012/privatization-war statement-2012-09-06.htm 28 Andrew Clapham, Human Rights Obligations of Non-State Actors in Conflict Situations, 863 International Review of the Red Cross 491 (2006), at 503. 29 Ukraine has accepted the ICC’s jurisdiction, but only for a limited time period that ended in February 2014. International Criminal Court Press Release, “Ukraine accepts ICC jurisdiction over alleged crimes committed between 21 November 2013 and 22 February 2014,” April 17, 2014, available at http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr997.aspx. 30 Ibid .

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