Die Bindung privater Militär- und Sicherheitsfirmen an das humanitäre Völkerrecht unter besonderer Berücksichtigung des Dokuments von Montreux
Author: Odendahl, Kerstin
Source: Archiv des Völkerrechts, Volume 48, Number 2, June 2010 , pp. 226-247(22)
Publisher: Mohr Siebeck
Abstract:Private military and security companies (PMSCs) play an ever-increasing role in modern-day armed conflicts. In the last years, however, there have been many incidents in which the personnel of PMSCs did not even respect the basic principles of humanitarian law. One of the most alarming examples was the shooting at Nisour Square in Baghdad in 2007 where 17 Iraqi civilians were killed and 24 seriously injured when a Blackwater Personal Security Detail opened fire. The international law system is thus facing a new and challenging problem: What steps can be taken to ensure that PMSCs respect international humanitarian law? As PMSCs are private companies and, therefore, no subjects of public international law, they are not directly bound by the rules of humanitarian law.
Currently, there exist two different measures to ensure that PMSCs respect international humanitarian law: self-regulatory norms of PMSCs, and rules adopted by States and international organizations. There are, however, gaps with regard to both solutions: Self-regulatory norms of PMSCs are not legally binding, and most of them do not refer to humanitarian law as mandatory. Rules adopted by States and international organizations are legally binding, but they are rare and diverse and thus do not constitute a coherent legal system. The best solution would be to adopt a new worldwide treaty on PMSCs. But States are not yet ready to accept such a legally binding instrument.
The Document of Montreux of September 2008 offers a new solution. It recalls existing international legal obligations of States regarding PMSCs (Part I), and it contains a set of over 70 good practices designed to assist States in complying with these obligations (Part II). The aim of the legally non-binding document is to ensure that States adopt similar national legislation relevant to PMSCs. The companies shall thus not be bound by humanitarian law directly, but by domestic law containing identical rules of humanitarian law. Since the document has been adopted by most of the contracting, territorial or home States of PMSCs, it can be considered as a new, pragmatic way of dealing with this challenging problem of the international law system.
Document Type: Research Article
Publication date: June 1, 2010
- Archiv des Völkerrechts (Archive of Public International Law - AVR) has been founded as a quarterly journal in 1948. With its scientific papers, reports and book reviews, the journal covers the full spectrum of developments in public international law. AVR is a forum for the German-language community of scholars engaged in public international law and aims at entering into a dialogue with its international peers. AVR's content reflects dogmatic and theoretical essentials of public international law as well as developments in international jurisprudence. Legal fields covered range from traditional core questions of public international law as law between states, the laws of armed conflict and the law of international organisations to human rights law, international environmental law, world trade law and international administrative law.
In the recent past, the comprehensive analysis of particular and universal legal orders as well as the creation of a material international legal order based on principles have been in the spotlight besides contributions on today's conflicts with a public international law angle.
AVR is published on a quarterly basis with contributions in German, English and French.
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