inadequately trained, not appropriately monitored by army officials, not given clear guidance, and not subject to clear lines of authority.
—Jonathan Idema and two other Americans were recently convicted by an Afghan courtfor operating a private jail and torturing prisoners in Afghanistan. The facts are murky,but apparently they were trying to capture al Qaeda fugitives—either at the behest of theU.S. government (their claim) or as bounty hunters who sought rewards offered by theU.S. army.
—Executive Outcomes, a South African mercenary organization, was hired by thegovernment of Sierra Leone to crush an insurgency, which it did. The American securitycompanies, Triple Canopy and Blackwater USA, provided security for the CoalitionProvisional Authority in Iraq. The U.S. military also hired DynCorp to provide securityfor Afghan President Hamid Karzai, and the British company Global Risk Strategies toprotect Jay Garner in Iraq.
Many people worry that mercenaries like ExecutiveOutcomes, which used napalm against rebels in Sierra Leone, can commit war crimeswithout being held liable because they are not states.—Aid workers hired by NGOs operating on behalf of the United Nations engaged insexual exploitation of women and children in refugee camps in West Africa.
—In 1990, Mexican nationals hired by the U.S. Drug Enforcement Agency kidnappedHumberto Alvarez-Machain, a doctor whom the DEA believed had assisted in thetorture-murder of an American agent, and brought him to the United States for trial.
Each of these cases raise delicate questions about state responsibility.
Although itis clear that states are responsible for international law violations committed by stateofficials, it is not clear what happens when states contract out traditional state functionsto private firms or organizations, which then engage in actions that would be consideredviolations of international law if the people involved had been state officials. Someauthorities argue that the actions of private citizens cannot implicate state responsibility
2AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade,MG George R. Fay 47–52 [hereinafter Fay Report], available athttp://news.findlaw.com/hdocs/docs/dod/fay82504rpt.pdf.3See Carlotta Gall, Mercenaries in Afghan Case Get 8 to 10 Years in Prison, N.Y. Times, Sept. 16, 2004,at A12.4See Daniel Berger, The Other Army, N.Y. Times, Aug. 14, 2005, § 6 (Magazine), at 29.5Laura A. Dickinson, Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability under International Law, 47 Wm. & Mary L. Rev. 135, 157-58 (2005).6See Gregory Townsend, State Responsibility for Acts of de Facto Agents, 14 Ariz. J. Int’l & Comp. L.635, 672-73 (1977).7For other examples and discussions, see Dickinson, supra; Townsend, supra; Juan Carlos Zarate, TheEmergence of a New Dog of War: Private International Security Companies, International Law, and theNew World Disorder, 34 Stan. J. Int’l L. 75 (1998).