CYIL 2014

PRIVATE MILITARY CONTRACTORS, PARAMILITARIES AND MERCENARIES … likely, if serious abuses amounting to human rights violations or war crimes were committed. In such a case, Russian nationals, for example, (or any other country with nationals harmed) may be affected, which would raise Russia’s passive personality jurisdiction. 31 Alternatively, if Russia, or another neighboring country, felt its security, integrity or economic interests were being threatened, then protective jurisdiction could be triggered. 32 Finally, there could be an argument that mercenaries or PMSCs (or perhaps the people directing them) could be subject to universal jurisdiction for acts, such as war crimes, and then any country in the world could try and prosecute such individuals. 33 There has been a growing support for universal jurisdiction over certain serious offences. The principle of universal jurisdiction was “overwhelmingly embraced” in September 2005 as world leaders formalized what is known as the “Responsibility to Protect” in the UN Summit Outcome Document, 34 which explained “that, if a State proves unable or unwilling to protect its own citizens from genocide, war crimes, ethnic cleansing, and other crimes against humanity, then the international community has the responsibility – not the right or the option – to provide that protection.” 35 However, if individual liability is lacking, can or should accountability be achieved through other avenues, such as State responsibility? A State may have liability if it is found to have supported or acquiesced to the actions of the private individuals. If Russia or the US, for example, or another country, are found to have provided such support to private fighters, then the actions of the fighters or those directing them will be attributable to the State. This was seen in the ICJ case of Nicaragua v. United States of America , which will be discussed in detail shortly. However, private military contractors may or may not be traceable to a State, as States may wish to avoid the international scrutiny of interfering in a conflict or responsibility for a possible act of aggression, and therefore may not be subject to the same legal constraints and accountability currently placed on States. For example, could Akhmetov’s acts be attributable to Ukraine, Greystone’s acts to the US, or the acts of the Wolves’ Hundred to Russia? The answer is likely no, unless their actions could be found to have been supported or endorsed by the State. Furthermore, it may be unlikely that State accountability would even have the desired punitive or deterrent effect on individuals. However, there are other options for accountability, most notably in the corporate sector. In recent years, there has been an increase of efforts to hold 31 Anne-Marie Slaughter, Defining the Limits: Universal Jurisdiction and National Courts. In: Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law 168, 172 (Stephen Macedo ed., 2006) (2004). 32 Ibid . 33 Princeton Project on Universal Jurisdiction, The Princeton Principles on Universal Jurisdiction 1(1) 18 35 Genocide and the Rule of Law: Hearing on S. 888 Before the Subcomm. on Human Rights and the Law of the S. Comm. on the Judiciary, 110 th Cong. (2007) (statement of Lieutenant General The Honorable Romeo A. Dallaire, Senator, Parliament of Canada, emphasis added); accord G.A. Res. 60/1, 138-39, U.N. Doc. A/RES/60/1 (Oct. 24, 2005). (2001), available at http://lapa.princeton.edu/hosteddocs/unive_jur.pdf. 34 G.A. Res. 60/1, 138-40, U.N. Doc. A/RES/60/1 (Oct. 24, 2005).

349