Research Handbooks in International Law series
Edited by Bartram S. Brown
Chapter 2: The vanishing relevance of state affiliation in international criminal law: private security contractors and other non-state actors
John Cerone INTRODUCTION Much has been made recently of international law’s deficiencies in grappling with violence perpetrated by non-state actors. From transnational terrorist networks to private security contractors (PSCs), organizations that are not officially part of the apparatus of any state are increasingly engaged in protracted episodes of intense violence, giving rise to questions of accountability under international law. Does international law provide rules applicable to such conduct? While the repression of crime, especially that perpetrated by non-state actors, has traditionally been left to the internal law of states, most international jurists will point to the ancient rules of international law pertaining to piracy in support of the proposition that international law has always governed criminal activity by non-state actors. Today, these same jurists can point to article 25(2) of the Rome Statute of the International Criminal Court (ICC) which provides for individual criminal responsibility of perpetrators without any reference to state affiliation. In light of the correspondence between these ancient and modern rules of international law, why is there such controversy over the responsibility of non-state actors under international criminal law? In order to understand the controversy, it is essential first to recognize that Grotius’ condemnation of pirates as guilty of violating the law of nations had a very different legal character from the concept of individual criminal responsibility under the Rome Statute. For Grotius, the pirate was guilty of violating natural law,1 a body of law that bound individuals in the first place, and only by...
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