Exploring the Applicability of Command Responsibility to Private Military Contractors

The aim of this article is to explore the applicability of the doctrine of command responsibility to State officials which have private contractors among their subordinates and to Private military and security companies’(PMSCs) managers and Senior employees which are increasingly hired to perform relevant State functions in very complex situations. After an abbreviated history of the evolution of the doctrine of command responsibility, the author explores the viable options to apply such doctrine both to State officials exercising authority over private subordinates and to private superiors contracted to exercise crucial State functions. It is here submitted that the doctrine, if conceived as a ‘dereliction of duty’ type of liability (liability by omission) and interpreted with flexibility, could represent an appropriate tool to prosecute both State officials having private employees amongst their subordinates and PMSCs Managers and Senior private contractors exercising their authority over lower-ranking private subordinates or over lower-ranking military officers. More specifically, building on past episodes and drawing some hypothetical cases, it is possible to argue that there may often be sufficient basis to prove that those in command – whether State officials or PMSCs employees - at least failed to duly supervise their subordinates who committed serious crimes or failed to report them to competent judicial authorities. As far as PMSCs managers are concerned, it could also be contended that they may be responsible for failure to prevent the commission of serious violations of international humanitarian law by not providing adequate training for their employees to whom delicate tasks are assigned, and for failure to report in cases where they did not provide for a functioning and effective reporting system.