Employing Private Military Companies: A Question Of Responsibility

January 18, 2008 - nr.59
Summary

Summary


This advisory report to the Dutch Government focuses chiefly on the political, legal and ethical aspects of employing private military companies (PMCs) during the preparation and implementation of military operations carried out by national armed forces, generally in an international framework or coalition. These PMCs provide services that not only include logistical support, security and the maintenance of weapons systems but may also involve training, intelligence gathering and even participation in combat operations. For various reasons, armed forces of Western countries operating in crisis areas are making increasing use of private players. These reasons include a perceived need to intervene in regional and local conflicts, the transformation of warfare due to developments in weapons technology, a political shift towards the privatisation of state tasks, and problems and shortages affecting modern armed forces, especially in the field of logistical and technical support.

As an active participant in the ISAF operation in Afghanistan (in the province of Uruzgan), the Dutch armed forces are also making use of the services of private companies on a relatively large scale. The experiences of the United States in Iraq, for example the shooting incidents involving the Blackwater company, have shown that the employment of PMCs can lead to unacceptable excesses. A careful consideration of the problems described in this report is therefore a matter of great public importance, all the more so because, whatever one’s position regarding this phenomenon, the use of private companies has become a reality that cannot be ignored.

While preparing its report, the AIV encountered several significant problems. First and foremost, there is a conspicuous lack of information and transparency regarding the number of PMC personnel employed, the tasks they perform and the sums of money involved. For example, it is estimated that there are currently more than 180,000 private service providers in Iraq, including approximately 30,000 armed security guards. However, nobody seems to know exactly how many contractors are in the country or what they do there.

This observation applies not least to the companies employed by the Netherlands in Afghanistan. Not only are there no figures on the number of PMC employees working in Iraq and Afghanistan, but the same applies to the costs involved in employing these private companies. What is clear, however, is that a billion dollar market has emerged. The lack of insight into the costs of employing PMCs for specific operations or tasks is one reason why it is extremely difficult to verify the oft-made claim that employing PMCs is attractive from a business perspective because it supposedly costs less. Other reasons include the difficulty of measuring the cost of underuse of one’s own capacity between periods of peak demand, the estimated lifespan of certain investments (e.g. transport aircraft) and the quality of the product provided.

A second problem derives from the fact that the interests of national armed forces and PMCs do not necessarily coincide. The main objective of private companies is to serve the interests of their shareholders, not the general interest in the sense of the success of a military operation, regardless of the risks involved. Given that PMCs are not subject to the authority of military commanders, they can refuse to carry out life-threatening assignments or even go on strike on the battlefield. While military commanders must have full control over their troops, experience has shown that private companies are unable to provide the same services as military units in high-risk situations (e.g. in Iraq), even when these services are limited to transport and logistical support.

The limited availability and deployability of the private companies’ personnel lead to the conclusion that the reliance on PMCs should not exceed the critical point at which the practical feasibility of military operations is determined primarily by whether private companies are able and willing to take part. This point should be regarded as a general precondition when assessing whether or not certain tasks are suitable for outsourcing.

A third problem, which is perhaps the most intractable of all, concerns the loopholes in the existing national and international legal provisions relating to the activities of PMCs. These loopholes can be summed up by the term ‘accountability gap’. In this context, it is important to understand that the PMCs operating in Iraq and Afghanistan have been granted immunity from the jurisdiction of the host country. This creates a particular problem in the case of employees who have a nationality other than that of the country that employs them in military operations. For example, the Netherlands cannot exercise extraterritorial jurisdiction in Afghanistan over employees who are South African nationals. As far as the AIV is concerned, a situation that essentially amounts to impunity with regard to serious forms of misconduct is unacceptable a fortiori when it comes to prosecution for serious offences that constitute grave breaches of human rights or international humanitarian law.

On the basis of the same international humanitarian law, however, employees of PMCs are not combatants but civilians, because they are not part of the armed forces. This means that contractors are not entitled to prisoner of war status, subject to an exception in the Third Geneva Convention. International law contains no other provisions on the use of PMCs by states in conflict areas. An attempt to adopt provisions in a related field (mercenaries) proved unsuccessful.

Another problem relates to the lack of clarity regarding the limits of state responsibility. To what extent does political responsibility for the conduct of private service providers, which applies under all circumstances, also entail state responsibility in terms of international law for the consequences of potential misconduct on their part? Breaches of international law by PMCs can be attributed to the employing state if the company or person in question (a) acts as an organ of the state; (b) is authorised to exercise elements of state authority; (c) is acting under the instructions or control of the state; or (d) if the state assumes responsibility. In practice, whether the application of one or more of these basic rules actually leads to a finding of state responsibility will depend very much on the specific circumstances.

Against this background, the AIV has arrived at the following conclusions and recommendations:

  1. For its part, the Dutch government should provide as much information as possible concerning all relevant aspects of the employment of private companies that provide services to the Dutch armed forces in operational areas. Given that several fundamental issues are at stake in this context (e.g. political responsibility and state responsibility, the state’s monopoly on the use of force, operational dependence on PMCs, the ability to prosecute and punish serious offences and democratic control in general), the AIV believes it is vital for government and parliament to conduct a debate on this issue of greater depth and breadth than they have conducted thus far. In light of the demonstrable importance of the political and legal dimensions of this issue, the Ministers of Foreign Affairs and Justice should also take an active part in this debate. Regarding the provision of information to the House of Representatives, the AIV advises the government to henceforth include information on the prospects of private contracting for the military operation discussed in every letter drafted in accordance with the Terms of Reference for decision-making for the deployment of military units abroad (‘Article 100 letter’).
     
  2. As far as the AIV is concerned, the term ‘acceptable risk’ is key to deciding which services can – and which cannot – be outsourced to civilian service providers in operational areas. For obvious reasons, the AIV believes that employing PMCs becomes increasingly problematic as the services concerned move closer to the active use of force and core military tasks. In the interests of conducting a rigorous assessment of the acceptability of various risks, the AIV advises the government to take the following criteria into account: (1) maintaining the state’s monopoly on the use of force; (2) the importance of the mission and the tasks that are to be outsourced; (3) the security risks to which the personnel in question will be exposed; (4) the degree of operational dependence on PMCs; (5) the existence of military alternatives; (6) the legal framework pertaining to state responsibility; (7) the scope for monitoring the implementation of the tasks that are to be outsourced; and (8) the financial and economic issues. The AIV wishes to make it absolutely clear that, on the basis of these criteria, the use of PMCs for offensive purposes is unacceptable. The potential deployment of civilian personnel in the operation of weapons systems should also be prohibited.
     
  3. In order to reduce the risk of potential misconduct on the part of PMCs and their employees and provide redress to the victims of potential offences committed by private companies, the AIV urges the government to establish better legal safeguards. In doing so, the government should pursue various tracks. First and foremost, it should make improvements in the field of civil law. Every contract concluded by the State of the Netherlands should at the very least satisfy the conditions laid down in the codes of conduct of the US and UK private military industry interest groups. This means, for example, that PMCs and their employees may only use weapons in self-defence and that they must respect the international humanitarian and human rights conventions. Moreover, such contracts should include agreements on specific issues, such as the rules of engagement. They should also provide that subcontracting can only take place with the permission of the client and that it may never include the provision of armed services. This is a departure from current practice, under which food and fuel transporters are responsible for their own security. In addition, following the US example to some extent, the AIV advises the Dutch government to establish permanent teams of observers who can be charged with investigating alleged offences committed by PMCs in the areas where they operate. These teams could consist of officers from the Dutch Military Police  and the Public Prosecution Service (which falls under the Minister of Justice). In the course of their activities, they would also have to work closely with the competent local authorities. In addition to sound contractual agreements and additional investigative capacity, the government should also consider extending the jurisdiction of Dutch courts over Dutch PMC employees, as recently achieved in the United States by means of the Military Extraterritorial Jurisdiction Act. The AIV believes that the most appropriate option would be to amend the Criminal Code. It opposes the idea of placing contractors employed by the Netherlands under Dutch military criminal and disciplinary law. Given the inherent limitations on the effectiveness of amending national legislation (the majority of employees concerned do not have Dutch passports), the Netherlands should also push for appropriate international rules governing the conduct of PMCs. The AIV believes that the Netherlands should support the initiative launched by the Swiss Federal Department of Foreign Affairs and the International Committee of the Red Cross. Though focused primarily on strengthening existing national legislation and developing non-binding good practices, this initiative could in due course lead to the adoption of one or more international agreements. In addition, the Netherlands should place the employment of private service providers on the agenda of EU deliberations on international security matters. In line with its Code of Conduct on Arms Exports, for example, the European Union could adopt a code of conduct on the provision of armed services by PMCs. In view of the interests of potential victims, finally, the Dutch government should interpret the principle of state responsibility as broadly as possible. According to the AIV, this implies that the Netherlands should only hire PMCs if it is able to control their actions.

The AIV advises the government to implement the proposed improvements in existing practice, if possible, and to refrain from entering into new commitments that do not comply with these proposals in the future.

Advice request

Mr F. Korthals Altes
Chairman of the Advisory Council
on International Affairs
P.O. Box 20061
2500 EB  The Hague

Date     23 May 2007
Re         Request for advice on deployment of civilian service providers in operational areas

 

Dear Mr Korthals Altes,

Increasingly, armed forces are making use of civilian service providers in operational areas. The United States and the United Kingdom are two well-known examples, but the Netherlands also employs such methods, albeit on a smaller scale. Examples include leasing ships and aircraft, as well as contracting with local businesses for various services, some of which may even involve the use of force. Civilian service providers cannot eliminate the need for core military logistical capability, as they cannot be deployed in certain situations, like a combat environment for instance. Yet civilian service providers can supplement logistical capability, which in turn can contribute to military flexibility and sustainability. Civilian services are becoming increasingly important as our armed forces engage in a greater number of operations, which are increasingly long term and complex in nature.

The government is well aware that deploying civilian service providers carries risks and obligations with it. The conditions under which they may be deployed in operational areas need to be set down clearly. Elements that require careful consideration are the legal context in which civilian service providers operate and the security situation in the area of operation. Of course this is especially critical in cases of armed conflict. The government therefore requests that the Advisory Council on International Affairs produce an advisory report on the conditions attached to, and the consequences of, contracting the civilian service providers. We request that you focus primarily on the ethical and political aspects, against the backdrop of the international law context in which such operations take place.

Questions

  1. What services may, in principle, be outsourced and what preconditions should the Dutch government observe when doing so?
    Companies offer all manner of services. The law of war clearly prohibits the use of mercenaries. It also describes which service providers enjoy legal protection through their association with the military. There is, however, a grey area in which a number of variants need to be considered, such as mechanics and security firms who might be deployed at the rear or close to the front line itself.
     
  2. To what extent can and should the Dutch government accept legal and political responsibility for the activities of civilian service providers and their consequences? Should the Netherlands develop specific legislation in this area?
    Unlike military units, civilian service providers are employed under contract. Agreements concluded by, or on behalf of, the Netherlands usually confer immunity from local law. It is not always possible, with the legal instruments currently available, to prosecute civilian personnel. The United States has developed special legislation for this purpose (the Military Extraterritorial Jurisdiction Act).
     
  3. Is it acceptable for civilian personnel to be recruited from around the world for deployment in war zones? What should be the government’s position on this issue?
    Service providers in operational areas recruit personnel from all over the world. These workers often come from developing countries with a poor standard of living. Such workers are more likely to accept serious risks to their safety for a relatively low wage.
     
  4. To what extent do the Dutch government and its armed forces have a duty of care for the safety of civilian personnel?
    Civilian personnel are vulnerable and security levels in operational areas can vary greatly. It is in the military’s own best interest that civilian personnel can operate in safety, and the armed forces can play both an active and passive role in improving safety. Such activities, of course, require the use of already-stretched operational resources.
     
  5. What are the possible effects of the abduction, mistreatment and/or killing of civilian personnel?
    Especially in Iraq, attempts have been made to put pressure on participating countries by publicly abducting and killing workers from civilian organisations. This could conceivably occur again during future conflicts.

I would be grateful if the AIV could present its advisory report before the end of 2007.

 

E. van Middelkoop
Minister of Defence

Government reactions

The President of the House of Representatives of the States General
Plein 2
2511 CR The Hague

Cc:  The President of the Senate of the States General
Binnenhof 22
2513 AA The Hague

 

Date  20 April 2008
Re:    Government response to AIV report ‘Employing Private Military Companies’

 

Madam President,

The Minister of Foreign Affairs and I hereby send you the government response to the advisory report by the Advisory Council on International Affairs (AIV) on the employment of civilian service providers in operational areas.

Yours sincerely,

Eimert van Middelkoop
Minister of Defence

_____________________________

Introduction

Armed forces make increasing use of civilian service providers in operational areas. The United States and the United Kingdom are well-known examples, but the Netherlands, too, uses private companies to provide a range of services. Ships and aircraft are for instance hired for transport to and from operational areas. Local contractors are engaged to provide various support services in operational areas, such as local transport, catering, interpreting and maintenance. Armed security guards may also be hired. The support provided by civilian service providers is always supplementary to existing military capacity. Civilian service providers do not remove the need for military (logistical) core capacities, because they cannot be deployed in certain (combat) situations. They augment military capacity, thus increasing the flexibility and operational sustainability of the armed forces.

The government is aware that the deployment of civilian service providers in operational areas entails risks and obligations. The conditions attached to such deployment must be clear. Important considerations here include the legal context in which civilian service providers operate and the level of risk in an operational area. This was the background to the government’s request to the Advisory Council on International Affairs (AIV) for an advisory report on the conditions under which civilian service providers should be deployed in operational areas and the consequences of such deployment. The AIV submitted its advisory report to the government in January 2008.

The government appreciates the AIV’s advice. The report gives a clear insight into relevant national and international trends, and suggests ways in which the government could improve its policy in this area.

This response confines its scope to the deployment of private companies in operational areas. It does not consider support by private companies in the Netherlands or the charter of aircraft, vessels or vehicles for the purpose of moving troops and equipment to operational areas.

The AIV’s advice will also be used in an interministerial future policy survey, which will consider the necessity and advisability of hiring private service providers, especially in operational areas, in the light of the armed forces’ mandate and structure.

 

International trends

In recent decades the deployment of private companies in operational areas has increased greatly. They provide a broad package of support services.

The government strongly favours strengthening international regulation of the use of such companies. By tying in with international trends, the Netherlands seeks to avoid a unilateral approach, which would have negative consequences when entering into contracts. The government endorses the AIV’s recommendation to support international initiatives in this area and is accordingly closely following the joint Swiss and ICRC initiative mentioned by the AIV.

NATO is transforming itself from a regional treaty organisation to an expeditionary organisation that can give shape to member states’ aspirations. Although it seeks where possible to provide multinational logistical support for operations, troop-contributing states are ultimately themselves responsible for the logistical support they need. In order to have a wide range of capacities at its disposal, NATO facilitates the contracting of companies to support expeditionary operations, for instance to build airfields and set up and maintain camps. NATO Maintenance and Supply Agency (NAMSA) facilitates various processes, including contracting civil capacity in Afghanistan for participating countries.

Increased deployment of private security companies in operational areas is a controversial issue. The recent furore concerning the incidents involving the Blackwater company in Iraq has led to many critical questions. The Afghan government has announced that it will critically examine the actions of private security companies. The governments of Iraq and Afghanistan plan to improve the regulation of such companies’ activities. The Dutch government supports national and international initiatives to subject this sector to clear standards and rules.

 

Policy and context

  1. Maximum deployability of the armed forces

Civilian service providers are deployed to increase the flexibility and effectiveness of the armed forces. To carry out crisis management operations effectively, it is crucial that military capacity be devoted as much as possible to carrying out military core tasks within the established mandate. The aim is to get as many units as possible ‘outside the gate’. By drawing on the specialised knowledge of the private sector, the armed forces can increase and reinforce their operational potential. The current aspiration – which is to be able to carry out three concurrent crisis management operations at battalion level – assumes optimal support from civilian partners in both operational and other areas. Cost-effectiveness is not of overriding importance. The deployment of private companies is subject to a number of restrictions. Such parties operate on the basis of contracts, after all, and are at liberty to invoke resolutive conditions or simply not to extend the contract.

The government aims to carry out operations as safely as possible, irrespective of whether military or civilian personnel are involved. The Netherlands must deal carefully with the risks associated with the deployment of civilian service providers in operational areas. At the same time, the quality of personnel and the goods and services provided must continue to meet Dutch requirements. When determining whether support from civilian service providers is desirable, the eight criteria incorporated by the AIV in its report play a significant role. The AIV uses the following criteria to determine whether or not tasks should be outsourced:

  1. the importance of the mission and the tasks that are to be outsourced;
  2. maintenance of the state’s monopoly on the use of force;
  3. the security risks to which the personnel in question will be exposed;
  4. the degree of operational dependence on civilian service providers;
  5. the existence of military alternatives;
  6. the legal framework pertaining to state responsibility;
  7. the scope for monitoring the implementation of the tasks that are to be outsourced;
  8. the financial and economic issues.

Although these criteria are already used in determining the desired level of support, they will be explicitly included in the decision-making process in future.

The Ministry of Defence uses many standard clauses in its contracts. When hiring civilian support services in operational areas, the contracts are supplemented with clauses relating to the specific circumstances of the operational area in question. These contractual provisions and attendant policy are currently being shaped in the light of the AIV’s recommendations.

If necessary, armed forces in operational areas must have access at all times to sufficient military capacity to avoid becoming dependent on civilian parties. The armed forces must also be able to continue their activities at times of great threat. If all activities in an operational area have to be carried out by military personnel for a sustained period of time, this will of course affect the armed forces’ ability to continue to perform, among other things because troops will be deployed abroad much more often. Since the Netherlands in principle only takes part in multinational operations, it is usually possible to make use of the military capacity of other participating countries.

In the light of the above, the government cannot accept the AIV’s conclusion that the Dutch armed forces are too dependent on private contracting. If current military targets are to be met, support is needed from civilian parties. There is no question of lasting or complete dependence, however. The armed forces possess the necessary core capacity to carry out the entire chain of support services during operations.

  1. Scarce capacity

The missions carried out by the Dutch armed forces are increasingly complex. The armed forces need to be able to carry out multiple missions simultaneously in remote areas. The ISAF mission in Uruzgan, at present the most demanding mission in which the armed forces are involved, shows that the Ministry of Defence must be increasingly prepared to carry out complex operations in remote corners of the globe, against opponents engaging in irregular warfare. These trends are leading to increased use of special (supplementary) resources and greater need for specialist knowledge. There has also been a considerable increase in the need for logistical support for missions. One example is the high demand for transport helicopters during the Iraq and Afghanistan operations.

It is therefore necessary to establish in advance for every crisis management operation whether the armed forces have all the resources they need. Each mission imposes different requirements, sometimes creating a need to procure and deploy new materiel at very short notice. However, this means that resources are already being used in operational areas before being introduced across the board within the armed forces. This may make it necessary to hire additional capacity for a transitional period (for instance from the manufacturer) so as to be able to deploy the equipment as quickly as possible. An example is the use of Bushmasters in Afghanistan with support from the Australian manufacturer.

As defence equipment becomes ever more complex, its maintenance also requires increasing support from the supplier. Naturally, the Ministry ensures that there is sufficient support for maintenance of materiel in operational areas under all circumstances.

The economic climate sometimes makes it difficult for the Ministry to find sufficient specialised personnel, such as helicopter mechanics. It also sometimes needs extra specialists like interpreters, medical personnel or agricultural experts. Civilian capacity can be used in such cases, but use can also be made of reservists or temporary military personnel.

  1. Tying in with local conditions

The policy letter ‘Service worldwide’ (2007) looked at an integrated approach to crisis management operations. Where support for state-building is necessary, this will certainly entail promoting safety and stability, establishing a basis for the rule of law, restoring the state monopoly on force and launching socioeconomic development. The main focus of the armed forces is to improve safety and stability. This can only be achieved if military input is linked to initiatives to strengthen local government and reconstruction efforts (the integrated approach or 3Ds approach). Stimulating the local economy is an important part of the process.

From the point of view of reconstruction, it is important to contract services locally wherever possible, and to use local knowledge and expertise. If the security situation permits, tasks in the operational area should be carried out where possible by local civilian parties.

  1. Deployment of armed personnel

Organisations that carry out armed security tasks in operational areas form a special category of civilian service providers. In recent decades, their number has increased sharply. The AIV rightly comments that there are risks attached to this practice, and that policy and regulations in this area need to be extended and deepened.

An undisputed principle of Dutch policy is of course that the monopoly on force must always remain with the state. This includes the operation of weapons systems, remote controlled or otherwise. However, local circumstances can be such that armed personnel need to be hired. In such cases strict conditions must be attached to the deployment of armed civilian personnel. They may under no conditions be deployed for offensive tasks, one reason being that they would then risk losing the protection extended to non-combatants under international humanitarian law, since civilians forfeit such protection if they participate directly in hostilities (at least for the duration of such participation). Nor may personnel employed by civilian service providers be deployed for tasks directly related to strategic planning, questioning prisoners (including prisoners of war) or collating information from various intelligence sources.

The Ministry of Foreign Affairs uses private security companies to protect diplomatic missions in various unstable countries. In future, the government seeks to be better equipped to use public resources to meet the supplementary security needs of such missions (supplementing the protection that host countries are obliged to provide). The Ministries of Foreign Affairs and Defence are looking into the various options. The risk of escalation or other calamities must be minimised by careful legal safeguards, professional standards and regular quality controls.

The armed forces also employ private companies to carry out security duties. In complex crisis management operations, often in fragile states where government structures are weak or entirely lacking, the armed forces must be able to operate with a great degree of flexibility. Local circumstances may make it necessary to hire armed personnel. It is therefore undesirable to categorically rule out the possibility of hiring local, private security guards.

Afghanistan is a good example. At the moment, Dutch ISAF units are hiring the Afghan Security Guard (ASG) to protect the external perimeter of Dutch and Australian bases in Uruzgan. The conditions under which this is done are clearly set out. At present, it would be undesirable to replace the ASG with Dutch units, units from other countries or Afghan security forces. It is crucial that scarce resources be deployed where they contribute most effectively to stabilising Afghanistan. The deployment of a large number of Afghan security troops to guard the bases would greatly reduce the capacity of the Afghan army and the police to operate checkpoints and patrols. The Afghan authorities have agreed to the deployment of the ASG for security duties.

Nevertheless, the decision to hire local security services is one that must always be taken with great care. The risks involved in hiring local armed personnel must be deemed acceptable. Such a step should not be taken unless it helps increase the effectiveness of the deployment of Dutch units and national security services.

The AIV’s recommendation that subcontracting may never include the provision of armed services cannot be adopted. The government agrees with the AIV that great circumspection is called for in such cases. However, there are good reasons why this option should not be ruled out in advance. If the possession of arms in operational areas is legal, and the power of the state is weak, it is undesirable to forbid companies to allow their own staff or subcontractors to carry arms. Subcontractors moreover possess special knowledge of local circumstances, which puts them in a better position than anyone else to evaluate risks to safety and security and take the most effective measures to protect themselves from attacks.

Of course, it is always necessary to take a close look at the safety and security situation, and military personnel (whether Dutch or nationals of partner countries) must be able to take over security duties (for instance relating to road transport). This is necessary to prevent civilian personnel being exposed to unacceptable risks and to ensure that the future of the mission is not endangered.

A special point of focus in this area, for which the AIV rightly solicits attention, is the issue of the prosecution of civilian service providers. The question of granting immunity to civilian service providers is particularly controversial, especially in cases where they are armed. The government shares the AIV’s view that it must be possible to prosecute civilian personnel hired by the state for crimes carried out in the course of their activities. This will be examined in more detail under ‘criminal law’.

As indicated above, the government also supports the AIV’s recommendation that civilian personnel should not operate military weapons systems (handguns are specifically excluded from this category). Equally, tasks directly relating to the operational deployment of weapons systems may only be carried out by military personnel. The maintenance of weapons systems in operational areas does not fall under this prohibition.

 

Legal aspects

An important point to consider regarding the deployment of civilian service providers in operational areas is state responsibility for the actions of civilian contractors. The government notes that a distinction must be made between responsibility under international law and under civil law. In both cases, the question of responsibility hinges on the circumstances of each specific case.

  1. International law

For a state to be responsible under international law for an action, it is necessary that the action be attributable to the state. In other words, there must be sufficient evidence to establish a link between the action and the state. The actions of private individuals and companies cannot, as a rule, be imputed to a state, because such a connection is deemed to be lacking or insufficiently strong. There are only limited exceptions to this rule. The AIV refers to some of these cases, in which an act can be imputed to a state if the person or company in question acted as an organ of the state or exercised elements of governmental authority. The AIV however does not take account of the strict conditions that apply in such cases. For instance, for an action to be imputed on the latter grounds, a company must be explicitly authorised to exercise elements of state authority under the national law of the state in question, in this case the Netherlands. On account of these strict conditions, the actions of private individuals and companies can only be imputed to a state in exceptional cases. Naturally, the government endorses the principle that the state should not evade its international obligations by outsourcing government tasks to civilian service providers.

Even in cases where actions are attributable to states, this does not automatically lead to state responsibility. For this to happen, it is also necessary to demonstrate that an action breaches a state’s international obligations. Whether the Netherlands does have an international obligation in a specific instance will depend on the nature of the obligation and the circumstances of the case.

The government stresses that even when the Netherlands is not responsible for the actions of civilian service providers, there may be other modalities for compensating the victims of such actions. Where such cases arise, it will encourage service providers to compensate victims. In exceptional cases, the Netherlands can make ex gratia payments to victims of actions by civilian service providers for which the Netherlands is not legally responsible.

In the light of the above, the government cannot adopt the AIV’s conclusions and recommendations regarding state responsibility for the actions of civilian service providers.

  1. Civil law

Responsibility (or liability) under civil law depends on the applicable legal system and the contracts between the state and the civilian service provider. The contracts between the Ministry of Defence and civilian service providers contain a clause to the effect that the state is not responsible and its personnel are not liable for any damage incurred by the civilian service provider or third parties (including the employees of the civilian service providers) resulting from the implementation of the agreement. It is made a condition of such contracts that contractors insure themselves and their employees against attendant risks. The cost of such insurance is incidentally passed on by the contractor, forming part of the sum to be paid under the contract.

Contracts with service providers in which the use of force falls under (or could fall under) the services provided, stipulate that requirements to be set by the Netherlands regarding the use of force will be strictly observed in the implementation of the contract. Thus service providers are obliged by the rules of engagement to observe international law, including international humanitarian law.

  1. Criminal law

As regards criminal law, the government shares the AIV’s view that it is important to prevent civilian service providers from being able to act with impunity in operational areas due to a lack of jurisdiction. Immunity for all personnel, including the personnel of service providers, is a condition in most status agreements between the Netherlands and the host state, or between the international organisation directing operations and the host state. To prevent impunity, however, the immunity of a civilian service provider or a member of their staff can be waived, whereby they fall under local jurisdiction. The contracts with the ASG, for instance, contain a clause referring to the possible waiver of immunity.

Besides Dutch jurisdiction or the jurisdiction of the local authorities in the operational area (through the waiver of immunity), consideration can be given to the scope for a third state (the country of origin of a contractor or a contractor’s employee) exercising extraterritorial jurisdiction over a case. As stated above, the government intends to adopt the AIV’s recommendation to support international initiatives regarding the regulation of civilian service providers. It should be emphasised that under international law members of staff of security companies are individually criminally responsible for international crimes. The content of contracts does not detract in any way from such responsibility.

Categorically excluding civilian service providers from status agreements is not desirable, because in many operational areas local jurisdiction either does not yet function adequately, or does not yet meet requirements in terms of respecting fundamental human rights. An approach geared to the local situation is therefore preferable.

As regards the AIV’s suggestion that the jurisdiction of Dutch courts be extended over Dutch civilian service providers’ employees, the government comments as follows. Under the terms of article 5, paragraph 1 (2°) of the Criminal Code, the Netherlands has jurisdiction over crimes that Dutch nationals commit outside the Netherlands, if the offence is punishable in the country in which it was committed (double criminality). It also has jurisdiction over a number of designated serious crimes, including war crimes, if these are committed by Dutch nationals outside the Netherlands. The requirement of double criminality does not apply to these offences. In other words, the Netherlands already has jurisdiction to a large extent over civilian service providers who are Dutch nationals. The AIV’s proposal to further extend extraterritorial jurisdiction over civilian service providers of Dutch nationality is inadvisable. In practice, the requirement of double criminality usually presents no obstacle to prosecuting Dutch nationals in the Netherlands who have committed crimes in other countries, since offences under Dutch law are, after all, usually also offences elsewhere. To dispense with the requirement of double criminality, a specific Dutch interest must be involved, for instance that of preventing Dutch nationals from transgressing specific Dutch norms. There are insufficient grounds for entirely abandoning the requirement of double criminality for offences committed by civilian service providers who are Dutch nationals.

 

Informing parliament

The government attaches importance to informing parliament of every aspect of the deployment of Dutch military units. The extent to which civilian support will be used and the way in which it will be contracted are relevant elements in the decision-making process. As the share of civilian parties in such operations continues to increase, the political significance of hiring such parties likewise increases. In future missions, the government will, if necessary, inform parliament of any plans to hire civilian service providers and the attendant conditions (for instance through an ‘Article 100 letter’). The government will also inform parliament of major developments or changes regarding the hire of civilian service providers during ongoing operations. Interim and final evaluations of missions will also analyse the support provided by such parties. Costs incurred in hiring civilian firms are of course itemised in the financial accounts sent to parliament.

The government adopts the AIV’s recommendation on this point. The government does not believe that an amendment to the 2001 Frame of Reference or the Article 100 procedure is either necessary or desirable. Sufficient guarantees are available within the existing forms of parliamentary involvement.

Press releases
[Not translated]