CYIL 2014

CAROLLANN BRAUM CYIL 5 ȍ2014Ȏ corporations accountable for human rights violations, and such accountability can have a significant impact. In today’s world, armed conflicts are no longer solely the domain of States or insurgent groups, but also business corporations, as is clearly seen in the case of Akhmetov’s steelworkers and PMSCs. 36 Along with this new reality must come a new framework for accountability, including corporate social responsibility. In 2008, the United Nations Special Representative, John Ruggie, proposed a framework on business and human rights to the UN Human Rights Council, resting on three pillars: (1) the State duty to protect against human rights abuses by third parties, including business; (2) the corporate responsibility to respect human rights; and (3) greater access by victims to effective remedy, both judicial and non-judicial. 37 There is no doubt that this framework, while not binding, should apply to PMSCs and any private businesses providing military-like services, of any nature, in conflict situations. As an effort to address these issues, a joint effort by the Swiss government and the ICRC in 2008 led to the development of the Montreux Document, which is largely a restatement of the existing international law which may apply to the regulation of PMSCs. 38 The Montreux Document has two primary objectives: (1) to reaffirm and clarify “the existing obligations of States under international law – in particular under international humanitarian and human rights law,” and (2) to identify “good practices to assist States in promoting respect for international law by PMSCs.” 39 While there has been wide acceptance by the PMSC community of this Document, the field is still the “Wild West” in many senses, and improvement of accountability is a project in the works. While all fighters should respect human rights, and there is movement towards greater accountability of businesses for human rights violations and remedies, under international law the greatest accountability still falls on the shoulders of States, which will ultimately be responsible for ensuring human rights and must hold accountable those PMSCs, paramilitaries or mercenaries responsible for abuses. Therefore, an understanding of this and of the actors in the Ukrainian conflict raises the question of whether there were acts of aggression by other States. While this is subject to speculation at present, it provides an important legal analysis, particularly considering how customary international law may possibly be shifting before our eyes.

36 Beerli, “A humanitarian perspective,” supra note 27. 37 UN “Protect, Respect and Remedy” Framework, available at http://www.business-humanrights.org/ SpecialRepPortal/Home/Protect-Respect-Remedy-Framework. 38 Christine Beerli, “Private military/security companies: Rules should be implemented,” Montreux +5 Conference, Montreux, Switzerland, 11-13 December 2013, Keynote Address, International Committee of the Red Cross Resource Centre, December 11, 2013, available at http://www.icrc.org/eng/ resources/documents/statement/2013/12-11-privatization-of-war-montreux-plus-5-beerli.htm. 39 Ibid .

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