THE USE OF PRIVATE MILITARY AND SECURITY COMPANIES BY BUSINESS ENTERPRISES: ISSUES OF INTERNATIONAL CRIMINAL RESPONSIBILITY.

The legal issue underlying this thesis is the attribution of criminal responsibility when more than one individual is involved in the commission of an international crime. Imagine a business enterprise operating in a risky place and retaining a private military and security company. Imagine now that, while rendering military/security services, the private contractors commit crimes against humanity with the help of the firm’s directors and the host State’s public officials. Who is responsible for that? Absent any legal precedent squarely applicable to this set of facts, I attempted to answer this query by: (i) designing four factual scenarios, where security contractors, business enterprise’s executives, and public officials contribute to varying degrees to the offense; (ii) examining case law on accomplice (and command) liability under Dutch law and the Rome Statute, focusing in particular on cases where business actors were convicted for aiding and abetting international crimes; and (iii) applying the rules developed by the case law to the four case studies. The “who is responsible” analysis is fact based, so the outcome largely depends on how the factual scenario has been designed. However, two broader conclusions can be drawn. First, the presence of private contractors determines a fragmentation of military/security services. This may be a source of difficulties, as responsibility correspondingly becomes more diffused and therefore difficult to ascertain. Second, criminal justice systems—domestic and international—ensure that criminal liability is not stretched too far. (Corporate) defendants are convicted for their own conduct, not for their association with the perpetrator of the crime.