Private Military Companies ( PMCs ) and International Criminal Law : Are PMCs the New Perpetrators of International Crimes ?

The extensive use of private military companies (PMCs) in conflict areas in the last 30 years has raised concern in the academic community regarding the participation of private companies in the conduct of war. For example, academics incite issues of legitimacy, the role of the state and the legal status of PMCs especially when they take a direct part in the hostilities. In this context, PMCs have been often accused of committing serious crimes during their involvement in the hostilities. The important question regarding their possible criminal activity is whether these serious crimes fall into the category of international law and more specifically international criminal law. This article examines firstly, whether PMCs actually commit serious crimes and secondly, if these crimes constitute violations of international law, namely, international crimes.


Introduction
Since the late 1980s the use of private military companies (PMCs) has been a common practice by states, 1 international organisations and multinational companies.For example, DynCorp participated in a counter-narcotics strategy in Colombia under the name 'Plan Colombia' in 1999 2 and has also trained the security forces in Afghanistan from 2002 *Dr Criminology, Panteion University of Social and Political Sciences, Athens, Greece.Email: stellaageli@yahoo.gr. 1 There are two types of states regarding the use of PMCs: the 'state-producer' and 'state-consumer'.'State-producer' refers to the strong Western states where the majority of the PMCs have their headquarters.'State-consumer' refers to the weak or failed states of periphery which use the PMCs in order to strengthen their military force.By the use of PMCs, the 'state-producer' usually profits from the conflict of the 'state-consumer' in order to achieve its political or financial goals.In this process PMCs are the tools of the strong states.See Stella Ageli, unpublished Phd Thesis, State-corporate crime and private military companies: an approach from the viewpoint of supranational criminology, Panteion University of Social and Political Sciences, Athens, Greece, 2014. 2 Bigwood J. (2001) 'DynCorp in Colombia: Outsourcing the Drug War' at :http://www.corpwatch.org/article.php?id=672, (accessed 5 March 2016).until now. 3The UN has also used private security companies during its peace missions worldwide 4 since the 1990s.Private armies were also present in Libya after the 'Arab Spring' 5 and finally media reports support that PMCs act in Syria and Ukraine. 6owever, the military companies that have triggered the most criticism are those which 'sell' purely military services 7 to conflict states and take direct part in hostilities.This type of PMC is hired by weak states, which are usually in civil war, and they need military reinforcement so as to confront the opposing groups.In this case the PMC has a key role in the outcome of the conflict because it strengthens one conflicting party against the other.
Despite the extensive use of PMCs in conflict areas and their participation in hostilities, their actions remain mainly secret.In most cases the conflict party that hires a PMC will not inform the opposing party.Moreover, during a conflict, "private military personnel have an ambiguous legal status which has resulted in an almost complete absence of legal prosecution" 8 when they act illegally.This has the consequence that their action is unencumbered and uncontrollable.In this context PMCs have been often accused of committing serious human rights violations and violations against international law, 9 namely, international crimes.
The participation of the PMC in the conduct of war, civil or not, and the allegations of possible violations against international law by them challenge the traditional theory of international law, which argues that only states and its institutions can carry out a war and violate the laws of war.In this sense, a new type of perpetrator has emerged, that of a PMC to commit international crimes.For that reason this article intends to examine two important questions: first, whether PMCs actually commit serious crimes and second, if they do, are these crimes against international law and more specifically against international criminal law?The aim of this article is to investigate whether the possible illegal acts of PMCs constitute international crimes.
For that purpose, section I of this article studies three examples of PMC activity in order to detect possible illegal behaviour.These three PMCs have been selected because they satisfy the following requirements: firstly, they are multinational companies; secondly, they offer a wide range of services; thirdly, they operate in conflict zones; fourthly, although their contracts regard training services they take direct part in hostilities and fifthly, they are linked to wrongdoings and scandals.These criteria allowed these specific PMCs to commit the serious violations that we will examine below.Section II analyses two basic international crimes-war crime and genocide-and examines whether the illegal actions of the PMCs constitute any of these two crimes.
Before we proceed to our analysis it would be quite helpful if we focused on the term 'taking direct part in the hostilities' as we will encounter it in all of our cases.What does is it really mean?That question is a very important issue for International Humanitarian Law and International Criminal Law.The Geneva Conventions 1949 do not clarify what 'taking direct part in hostilities' means, resulting in the term including everything from 'a support to war operations' to 'involvement/active role in war operations'. 10On the other hand, the Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, describes clearly what 'direct' means.Thus, "direct participation means acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces" 11 .On the contrary, the International Criminal Tribunal for the former Yugoslavia (ICTY) stated, "it is unnecessary to define exactly the line dividing those taking an active part in hostilities and those who are not so involved.It is sufficient to examine the relevant facts of each victim and to ascertain whether, in each individual's circumstances, that person was actively involved in hostilities at the relevant time" 12 .
As far as concerning PMCs and what 'direct part' means, it depends mainly on the kind of service the private army provides. 13For example, "a private contractor defending military personnel or military objectives from enemy attack directly participates in hostilities.His or her actions are indistinguishable from the quintessential duties of combat personnel". 14"On the other hand, defending any personnel or property against looters or others (including lawful combatants) engaged in criminal activity or war crimes does not comprise direct participation". 15Likewise, "any attack by civilians on military personnel or military objectives constitutes direct participation so long as there is a nexus between the attack and the armed "conflict". 16Finally, private armies which "engage in tactical level planning or approval are directly participating in hostilities because military operations could not occur but for that planning". 17

I.1 Executive Outcomes
Executive Outcomes (EO) was the first PMC incorporated into South Africa after the end of the Cold War and at the end of the apartheid era in 1989. 18The company, founded by Eeben Barlow 19 , acted mainly in Africa, where it took advantage of the African states' political and military instability in order to promote its own interests. 20Its involvement in the Angolan civil war shows the consequences of the PMC's actions.
In 1990 the civil war in Angola intensified between state forces of MPLA (Movimento Popular de Libertaçâo de Angola) and rebel group UNITA (Uniâo Nacional pela Independência Total de Angola).By 1993 UNITA had occupied the majority of Angolan territory including the oil-producing region Soyo, 21 where the British oil company, Heritage Oil, was operating.It was the damage suffered by the government and the oil companies that led Antony Buckingham-founder of Heritage Oil-to bring the government of Angola into contact with EO. "There is general suspicion that EO was not only fighting mercenary battles in Angola, but was defending their corporate interest in oil and diamonds". 22The contract between the two parties was signed in September of 1993 and referred to the reinforcement of the state military forces, MPLA. 23EO's remuneration 24 was USD $40 million in 1993, USD $95 million in 1994 and USD $1.8 million per month between 1995 and January 1996. 25e operations of EO in Angola and the key role the company played in the outcome of the war drew the attention of the international community.EO trained about 5000 soldiers and 30 pilots 26 .The Angolan government regained the oil producing regions and obtained the advantage against the rebels.Executive Outcomes provided high-level military training and effective methods for the extermination of the opponent.
EO also maintained two fighting units that were active in frontline conflict with UNITA troops.Without the backing of EO, the Angolan government most likely would have been brought to the bargaining table proposal.In the months prior to the procurement of EO's services, the government had been involved in negotiations with UNITA.After hiring EO, the government made a commitment to a military solution. 27 is commonplace for EO to take active part in the hostilities by the side of the MPLA, 28 and researchers note that during the conflict, between 1992 and 1994, 500,000civilians have died, 29 blaming EO for this. 30"The increased scale of death has been attributed to the increased technological sophistication and the superior killing efficiency of the private security force, Executive Outcomes". 31Reports of international NGO Human Rights Watch 32 and UN Working Group on the Use of Mercenaries 33 argue that EO participated in the hostilities during the civil war in Angola and in cooperation with MPLA committed attacks against civilians.But, according to article 8 (2)(e) of the ICC Rome Statute (1998) the act of "intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities" is considered a war crime. 34herefore, we will later test the hypothesis of whether the behaviour of EO in Angola constitutes this specific crime.

I.2 Military Professional Resources Incorporated (MPRI)
MPRI was created in 1987 by eight American former senior military leaders.MPRI offers a wide range of professional services to both public and private customers, most notably the U.S. Department of Defence, the U.S. Department of State, the U.S. Department of Justice, the U.S. Department of Homeland Security, law enforcement organisations, foreign governments, government agencies and commercial businesses but only with the US government's permission. 35The close relationship of MPRI with the US government resulted in certain cases that MPRI acted as a tool of foreign policy for the US interests (companies as proxies). 36The most characteristic of MPRI's activities was its operation in Croatia in 1995.
After the death of Tito and with the fall of communism throughout Eastern Europe, the Yugoslav federation began to unravel.Croatia held its first multi-party elections since Second World War in 1990.Long-time Croatian nationalist Franjo Tudjman was elected President, and one year later, Croatians declared independence from Yugoslavia.Conflict between Serbs and Croats in Croatia escalated, and one month after Croatia declared independence, war erupted.While the Croatian army was weak and inexperienced, Serbs had the support of the Serb-controlled Yugoslav People's Army (JNA).Therefore, Serbs dominated at the beginning of the war, conquering one third of Croatian territory. 37The Croats, realising the weaknesses of their army, requested the US government's support but the US government could not provide any aid to them because of the 1991 UN embargo "on all deliveries of weapons and military equipment". 38However, the US government proposed MPRI to the Croats since in that way US would gain an ally in the region, would restrain Serbs, and would serve its own political interests 39 without US military commitment.
The contract between MPRI and the Croatian government was signed in September of 1994 and according to MPRI officials was "simply to teach the Croatians Western military principles and tactical training was not included in the plan". 40Nevertheless, in August 1995, several months after the presence of MPRI in Croatia, the Croatian army launched a lightning offensive in order to recapture the Serb-held enclaves of Croatia. 41ore specifically, 'Operation Storm' in Krajina region against the Serbs on 4 th of August was considered the largest ethnic cleansing operation in the war 42 and was characterised as genocide.Serbian villages were looted, burnt and destroyed, hundreds of civilians were killed and about 200,000 people 43 were displaced.The Croats defeated the Serbs in less than 36 hours and in four days re-conquered all the territories that had been lost in the previous four years of war. 44e remarkable evolution of the Croatian army after its cooperation with MPRI caused the class-lawsuit in 2010 45 against the firm by a group of Serbs who lived in Krajina until 'Operation Storm'.The lawsuit accused them of 'complicity in genocide', military equipping of the Croatian Armed Forces, training the Croatian Officers and developing the plan for 'Operation Storm'.MPRI was linked to 'Operation Strom' 46 as the attack techniques were reminiscent of the American way of war.Specifically, it used new warfare techniques called the AirLand Battle Doctrine 47 , a doctrine developed by the US Army after its involvement in the Vietnam War and applied for the first time in the 'Desert Storm' operation during the first Gulf War in 1990. 48It is worth noting that Carl Vuono, Vice President of MPRI at that time, was one of the United States Army's Generals who planned and implemented the AirLand Battle doctrine in the Gulf War 49 .The use of high technology weapons evolved in the technical doctrine of AirLand Battle were implemented by the Croatian Army, thus referred to as the AirLand Battle 2000 Doctrine. 50There are reports in local media that a week prior to the operation there was a secret meeting between American and Croatian high-rank army officers at Brioni Island in the Adriatic. 51Among them was the Croatian Army General and architect of 'Operation Storm' Varimar Cervenko. 52Finally there are researchers who support that MPRI planned and directed the whole operation from the island Krk in Adriatic. 53British and French UN personnel reported that MPRI executives were seen on the battlefield. 54ose who studied MPRI's actions concur that MPRI not only trained the Croatian army, but also took active part in the actualisation of 'Operation Storm'. 55MPRI refused any involvement in 'Operation Storm' and insisted on the procurement of counselling services to the Croatian government. 56Is there any real difference between 'counsel' of how a military operation should be and 'taking direct part' in it?We cannot separate the military training of a private army to a state army from the evolution of the latter.These two are not irrelevant.The kind of training provided is an integral part of the trainees' activity.
There is strong cooperation between the two in order to achieve goals, and to maximize the capacity and efficiency.Hence not taking direct part in hostilities does not mean there is a lack of accountability.If the military personnel of a private army is in a distant area from the battlefield and instructs its trainees on how to fight, does it mean that it has no responsibility for the crimes committed?Moreover, how can it be proved that private soldiers of MPRI were not on the battlefield?How could someone separate Croat soldiers from MPRI's personnel?Someone could think of the different military uniforms.But how can we be sure that they did not wear the same military uniforms so as not to be detectable?Therefore we realise once again that the meaning of taking direct part in hostilities is rather complex.

I.3 Blackwater
The Blackwater Lodge & Training Centre was founded on December 26 1996, in North Carolina by billionaire Eric Prince, a former USA Navy officer 57 in order to provide training support to military and law enforcement organisations.Blackwater was the company that received the most contracts from the US government in Iraq.The total estimated cost for Blackwater task orders in Iraq from 2005 until 2008 was USD $1,014,189,271. 58The services provided by Blackwater to the US government were divided into three broad categories: 59 a) Guard strategic installations.For example, the facilities of the transitional government's Coalition Provisional Authority (CPA) as well as the 'Green Zone'60 in Baghdad's city centre; b) Guards officials and the allied forces; c) Guard convoys of military vehicles, a service that proved quite dangerous because it turned out to be the main means of resistance by the rebels with which they set ambushes on the roads.
However, Blackwater gained quite a negative image due to the aggressive action that eventually developed in Iraq.The incident that caused the intense reaction by not only Iraq's government, but also US Congress, was the shootings by Blackwater's employees against Iraqi civilians at Nisour Square in west Baghdad, on Sunday September 16th, 2007 (Baghdad's 'bloody Sunday'). 61 Sunday, September 16th 2007, a heavily armed Blackwater convoy carrying US officials entered Nisour Square.Since occupation, Iraqi police had orders "to stop traffic in order to make room for US VIPs, protected by heavily armed private soldiers, to blaze through". 62Thus, when the Blackwater convoy entered the intersection the Iraqi traffic cops stopped the traffic.But, according to witnesses, an Iraqi driver ignored police directives and passed the intersection. 63Blackwater's personnel who had already "got out of their vehicles and took positions on the street, began to fire in the direction of the car, killing its driver.Soon more shots were fired, killing a woman holding an infant sitting in the passenger seat.After the family was shot, a type of grenade or flare was fired into the car, which set it ablaze.Numerous civilians were also killed as the shooting continued". 64raqis said, "The Blackwater forces fired shots randomly as they withdrew from the square". 65"Iraqi officials have given several death counts, ranging from 8-20, with perhaps several dozen wounded". 66Blackwater guards told investigators that they believed that they were being fired on, although the investigations of the FBI, the American Army and Iraq 67 concluded that "there was no enemy fire" 68 and the shootings were unjustified. 69n general, Blackwater was involved in several unjustified shootings against Iraqi civilians.A US Congress Committee, which investigated Blackwater's activities from 2005 until 2007, revealed that: Blackwater's use of force in Iraq was frequent and extensive, resulting in significant casualties and property damage.Blackwater was legally and contractually bound to only engage in defensive uses of force to prevent 'imminent and grave danger' to themselves or others.In practice, however, the vast majority of Blackwater weapons discharges were pre-emptive, with Blackwater forces firing first at a vehicle or suspicious individual prior to receiving any fire. 70 particular, "Blackwater personnel have participated in 195 incidents in Iraq from January 1, 2005, through September 12, 2007, that involved firearms discharges by Blackwater personnel". 71"In over 80 per cent of these incidents Iraqis were injured or killed". 72"This is an average of 1.4 incidents per week.In 32 of those incidents, Blackwater personnel were returning fire after an attack, while on 163 occasions (84% of the shooting incidents), Blackwater personnel were the first to fire". 73The main characteristic of these incidents was that "Blackwater shots were fired from a moving vehicle and Blackwater did not remain at the scene to determine if their shots resulted in casualties", 74  Blackwater also fired first at a higher rate than its counterparts.Blackwater also inflicted property damage more often than the other two companies combined. 75Blackwater's acts in Iraq violate International Criminal Law and could constitute a war crime according to article 8(2)(e) of the ICC statute. 76 far we have studied three characteristic examples of PMCs' unlawful actions.Next we will examine the elements of two basic international crimes, specifically war crimes and the crime of genocide, in order to test whether the illegal activity of the PMCs falls under this category of serious crimes.

II. Private Military Companies and International Crimes
1) Article 8(2)(a) Grave breaches of the Geneva Conventions of 12 August 1949; 2) Article 8(2)(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law; 3) Article 8(2)(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949; 4) Article 8(2)(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law.

II.2 Elements of Crime
According to article 8(1) of ICC, an act can be characterised as a 'war crime' in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 78There are three common elements to all war crimes: 1) armed conflict, 2) nexus between crime and conflict and 3) awareness of the armed conflict. 79The first two elements regard the objective elements of an offense, while the third one regards the subjective elements of an offense.

Existence of an Armed Conflict
As far as concerning the existence of an armed conflict, the important question is when a disturbance can be characterised as an armed conflict.In the case of an international conflict, the states should declare war in order for international criminal law to enter into force.In case of an internal conflict, a "certain threshold of intensity and organisation must be met, in order to distinguish armed conflict from mere internal disturbances". 80It was the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadic case that has clarified the issue.In particular the ICTY ruled that: "an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State". 81The concept of internal armed conflict has been also discussed in the International Criminal Tribunal for Rwanda (ICTR) in the Akayesu case where the judges explained "an armed conflict is distinguished from internal disturbances by the level of intensity of the conflict and the degree of organisation of the parties to the conflict". 82Therefore, it is clear that internal unrest, sporadic acts of violence and other similar acts of violence do not constitute an internal armed conflict. 83Conflict parties should be able to plan and contact military operations.
Regarding the beginning and the end of an armed conflict, "international humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal 78  conflicts, a peaceful settlement is achieved". 84Moreover, according to article 6, paragraph 2 of the IV Geneva Convention of 1949, an armed conflict could cease without a peace agreement but with the general close of military operations. 85e element of the armed conflict is especially important when it concerns privates.Antonio Cassese, the first president of the ICTY, points out that the crimes of privates during an armed conflict are just crimes of the common criminal law of the country where the crime took place if the element of the armed conflict cannot be composed. 86Cassese's comment is essential for our discussion, namely the possible commission of crimes by PMCs' employees.Provided that the crimes of PMCs' employees take place during an armed conflict then one of the elements of a war crime is constituted.

The Nexus with the Armed Conflict
In order for a crime to be characterised as a war crime, it should be related to the armed conflict, as not all crimes in an armed conflict are war crimes. 87The Appeals Chamber of the ICTY in the Kunarac et al. case asserted that "the armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator's ability to commit it". 88rthermore: In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account, inter alia, the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator's official duties. 89 the Elements of Crimes of the International Criminal Court (ICC) 90 it is clear that the requisite for a crime to be characterised as a war crime is to take place 'in the context of' and to be 'associated with' an armed conflict.91 The word 'context' refers to the geographic and temporal parameters of the armed conflict, specifically the crime to be committed during the armed conflict and on the armed conflict territory.92 The ICTY specified that "there is no necessary correlation between the area where the actual fighting is taking place and the geographical reach of the laws of war".93 "The laws of war", the ICTY continues, "apply in the whole territory of the warring states or, in the case of internal armed conflicts, the whole territory under the control of a party to the conflict, whether or not actual combat takes place there". 94Hence, the ICTY accepts that a criminal act can occur in a moment and at a place irrelevant from the battlefield, yet this particular act can be related to the armed conflict."It would be sufficient", for the ICTY, "that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict".95 Finally, in the Tadic case the ICTY concluded that "the only question, to be determined is whether the offences were closely related to the armed conflict as a whole".96 Regarding the term 'associated with' there is a particular connection between the perpetrator's act and the armed conflict.97 The Appeals Chamber of the ICTY clarified the question in the Kunarac et al. case.Particularly, the ICTY concentrated on whether the armed conflict "played a substantial part in the perpetrator's ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed".98 The ICTY concluded that "if it can be established, that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict".

Awareness of the Armed Conflict
The third element of a war crime is the awareness of the armed conflict, namely that it should be established that the perpetrator is aware of the factual circumstances which constitute an armed conflict.According to article 30 of the ICC Statute, 101 paragraph 2 of the General Introduction of Elements of Crimes of ICC 102 and the Introduction of Article 8 in Elements of Crimes of ICC, 103 the material elements of war crimes are committed with intent and knowledge.These two elements operate cumulatively and require a perpetrator's will and knowledge that the consequences will occur in the ordinary course of events. 104In addition, "as to the awareness of the factual circumstances that make a situation an armed conflict and as to the proof of the nexus, the views were divided into two groups". 105The majority supports that the "mental requirement should be 'knew or should have known'". 106Besides, for some academics the element of awareness is of theoretical significance 107 because they argue that "in most situations it would be so obvious that there was an armed conflict that no additional proof as to awareness would be required". 108The other group supports that "no mental element is required at all". 109rmann articulates that: This picture gives at least some guidance in determining the requisite degree of knowledge.There are no indications that the prosecutor must prove a higher degree of knowledge than that which is reflected in the majority view.Moreover, it appears that generally proving the nexus objectively will be sufficient.In such circumstances, an accused cannot argue that he or she did not know of the nexus. 110e ICTR in the Akayesu case concluded that regarding the perpetrator's status, the commission of war crimes by only state armed forces is not a prerequisite for the establishment of a war crime. 111The ICTR explained that also privates can be perpetrators of war crimes provided that they have a "special relationship with one party to the conflict". 112This assumption could be used as a tool for the establishment of the crimes that PMC employees commit, providing that a contract between the party to the conflict and the PMC proves that 'special relationship'.

Angola, Executive Outcomes, and War Crimes
As already mentioned, EO acted in the Angolan civil war from September 1993 until December 1995.During this period, EO was accused of committing, in cooperation with the state army, attacks against civilians, which resulted in the death of 500,000 civilians.In addition, the company was accused of active participation in hostilities and its decisive role in the intensification of the conflict due to the training the company provided to the states armed forces.Next we will examine whether the activities of EO in Angola could be characterised as war crimes, specifically under article 8(2)(e) of ICC Statute.
Starting with the first element-the existence of an armed conflict-we will study if the acts of EO satisfy the requirements.We noted earlier that an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organised armed groups or between such groups within a state.There was an armed conflict in Angola between the state forces of MPLA and the rebel group of UNITA.There was such intensity and organisation of the two parties to the conflict that they were both able to conduct military operations resulting in the existence of a civil conflict.Hence, EO acted during an armed conflict, thereby satisfying the first requirement.
Regarding the nexus with armed conflict we mentioned that a war crime should be committed in the context (temporal/geographical) and associated with the armed conflict (perpetrator's action/armed conflict).EO did take active part in the hostilities in the territory of Angola, namely where the armed conflict took place.There was a special relationship between perpetrator's action and the armed conflict because it was the existence of the armed conflict which provided the opportunity for the perpetrator to commit the crime.If it were not for the Angolan civil war, EO would not be able to act in this particular country.Another important issue concerning the commission of a crime by a PMC employee is under which legal status the perpetrator acts.Is he regarded a private or a member of the Angolan armed forces?The ICTR 113 has concluded that individuals can also commit war crimes, as long as there is a liaison or a relationship with the conflict parties.In that case, EO was directly related to the Angolan government since it was the Angolan government which hired the company in order to strengthen its army.Thus the requirement of the nexus with the armed conflict is satisfied.
The third element of a war crime is the awareness of the armed conflict.It is obvious that EO's employees were aware of the armed conflict as they took active part in the hostilities.Nevertheless, it should be proven that there was intent and knowledge of the consequences of their actions.Our research showed that EO offered a high standard of training to the state army of Angola and effective methods of extermination of the opponent.These two particular factors indicate the element of intent and knowledge of the consequences.According to reports 114 EO introduced a new way of warfare, whose aim was the extermination of the enemy, and the enemy was not trained to counter this new way of warfare.EO knew the inability of the enemy to react and the consequences of this new mode of war, which was the large number of civilian deaths. 115Consequently, all the above show that the requirement of awareness and intent is satisfied.
Another issue that needs to be stressed for our discussion is that war crimes are also considered to be the 'actions against persons who do not take part or do not take part more in the hostilities'.In particular, articles 8(b)(i) and 8(e)(i) of the ICC Statute imply that "intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities" constitutes a war crime. 116EO committed such actions against civilians with the cooperation of Angolan army.
The implementation of elements of war crimes on the EO case proves that the actions of the company and its employees during its presence in Angolan civil war satisfy all the requisite requirements.Therefore, we can allege that EO and its members did commit war crimes in Angola.

Iraq, Blackwater, and War Crimes
Blackwater was involved in several shootings against civilians during its presence in Iraq that culminated in the massacre in Nisour Square.Here, we will examine if the offenses of members of Blackwater can be characterised as war crimes.
The first criterion of the 'existence of the armed conflict' is satisfied since there was use of armed force between states initially (US-Iraq) and protracted armed violence between governmental institutions and organised armed groups afterwards.
Concerning the element of 'connection with the armed conflict', it is obvious that Blackwater's offenses occurred during the armed conflict and took place at the territory of the conflict.In the case of shots being fired at civilians in Nisour Square, this did not happen at the time of hostilities.However, the criterion of 'connection with the armed conflict' is also satisfied while as we mentioned earlier, international criminal law recognises that this criterion applies to the entire region which is under the control of a belligerent party, regardless of where hostilities are taking place even if it is far from the battlefield. 117Also, there is a specific connection of the act of the perpetrator to the armed conflict because the conflict played a decisive role in the ability of the offender to carry out the act.As in the case of Angola with EO, if there was no armed conflict, Blackwater could not operate in Iraq.The legal status of the offender does not matter since international jurisprudence accepted that individuals may commit war crimes, provided that they have a link with one of the warring parties.Blackwater had a contract with the state forces in Iraq and with agencies of the US government, such as the Ministry of Defence and Ministry of Foreign Affairs.Thus, Blackwater satisfies the requirements for the element 'connection with the armed conflict'.
Although, the criteria of intent and knowledge are difficult to prove, our study showed that even if the employees of Blackwater had no intention to injure or kill civilians, the employees had at least knowledge of the armed conflict, a fact necessary to the constituent elements of the crime.Therefore, according to the same reasoning we used in the case of EO, similarly here we can conclude that Blackwater personnel did commit war crimes during their presence in Iraq.

II.3 Genocide
In this section we are going to examine thoroughly the crime of genocide and its elements in order to inspect whether the behaviour of MPRI in Croatia constitutes this particular crime.
Article 6 of ICC Statute 118 holds that 'genocide' means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

II.4 Elements of Crime
The ICTR has played an important role in the interpretation of the provisions of the Convention on the crime of genocide.The ICTR convicted and sentenced many of the officers who were responsible 119 for the mass killings of civilians during the Rwanda genocide in 1994. 120That is the reason why the ICTR's jurisprudence is considered important for the crime of genocide.As far as concerning the ICTY, its jurisprudence is poor because despite the fact that genocide was in many indictments, there was only one sentence for the crime of genocide 121 since there was a hesitation, on behalf of the judges, as to whether the incidents in former Yugoslavia constituted genocide. 122So, according to the ICTR's jurisprudence the crime of genocide consists of two elements: a) the mental element, namely "a special intent or dolus specialis to destroy, in whole or in part, a national, ethnical, racial or religious group, as such" 123 (subjective elements of crime), and b) the material element, namely killing and/or causing serious bodily or mental harm to members of the group 124 (objective elements of crime).Both elements have one thing in common, namely the extermination of the protected group.

Protected Group
The initial decisions of the ICTR indicated that the court had difficulty in defining Tutsi as a national, ethnic, racial or religious group. 125For that reason, the judges used an expanded definition of the term; 126 specifically, they referred to "'stable' groups, existing in a permanent fashion and the membership of which is determined by birth, with the exclusion of the more 'mobile' groups which one joins through individual voluntary commitment, such as political and economic groups". 127Thus, the ICTR thought that Tutsi "did indeed constitute a stable and permanent group and were identified as such by all". 128However, the judges did not subsequently use this expanded definition of the 'group'. 129In a subsequent decision, the ICTR considered that "an ethnic group is one whose members share a common language and culture; or, a group which distinguishes itself, as such (self-identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others)". 130e ICTY expressed a totally different view which considered that "a group's cultural, religious, ethnical or national characteristics must be identified within the socio-historic context which it inhabits" 131 and the chamber "identifies the relevant group by using as a criterion the stigmatisation of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics". 132International criminal courts interpreted the term of the 'group' based on the subjective perception of the perpetrator and of the victim of the 'group' as they play a critical role in the commission of the crime of genocide. 133Therefore, the chamber argues that the "determination of the categorised groups should be made on a case-by-case basis, by reference to both objective and subjective criteria". 134

Objective Elements
The objective elements of the crime of genocide are: a) killing members of the group; b) causing serious bodily or mental harm to members of the group; c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) imposing measures intended to prevent births within the group; e) forcibly transferring children of the group to another group. 135All these acts are examined in detail in the ICC Elements of Crimes. 136

Subjective Elements
The subjective elements of the crime of genocide are: a) intent to destroy a group and b) in whole or in part.The crime of genocide can be constituted only when "the acts are committed with dolus specialis excluding other forms of intent or negligence". 137It is this element of specific intent (dolus specialis) that "distinguishes this specific crime from other crimes". 138e ICTR acknowledged the difficulty to prove the dolus specialis 139 and the main reason was "the absence of a confession from the accused". 140Therefore, "his intent can be inferred from a certain number of presumptions of fact". 141e court considered that: It is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others.Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.142 The ICTR also stated that the specific intent of the crime of genocide "may be inferred from a number of facts such as the general political doctrine" 143 and "this intent derives from the combined effect of speeches or projects laying the groundwork for and justifying the acts, from the massive scale of their destructive effect and from their specific nature, which aims at undermining what is considered to be the foundation of the group". 144he ICTR in the Kayishema & Ruzindana case "suggested that the necessary element of intent could be inferred from sufficient facts such as the number of group members affected". 145The ICTR also pointed out that "the number of victims from the group is also important". 146Moreover, the court claimed that "although a specific plan to destroy does not constitute an element of genocide, it would appear that it is not easy to carry out a genocide without such a plan, or organization", 147 and underlined that "it is unnecessary for an individual to have knowledge of all details of the genocidal plan or policy" 148 in order for the specific intent to be proven.In the Bagilishema case, the ICTR ruled that "the accused's intent should be determined, above all, from his words and deeds, and should be evident from patterns of purposeful action". 149In general, the ICTR, in order to prove the specific intent of the crimes committed during the genocide in Rwanda, took into consideration the specific statements of accused persons, their social position and the general pattern of behaviour during the civil war and the general content of the genocide. 150Finally, the ICTY in the Krstic case added that "attacks on the cultural and religious property and symbols of the targeted group as well … may legitimately be considered as evidence of an intent to physically destroy the group". 151e term 'in whole or in part' inevitably refers to a quantitative aspect.The ICTR suggested "that 'in part' requires the intention to destroy a considerable number of individuals who are part of the group" 152 and stressed that "there is no numeric threshold of victims necessary to establish genocide.The Prosecutor must prove beyond a reasonable doubt that the perpetrator acted with the intent to destroy the group as such, in whole or in part.The intention to destroy must be, at least, to destroy a substantial part of the group". 153Therefore, you do not need a large number of victims to establish the crime of genocide; simply the intention that this number contributes to the eradication of this group 'in whole or in part' 154 suffices.
The ICTY clarified further the term 'in part' as it decided that the killing of 8,000 Bosnian Muslim men (not old men or children) in Srebrenica in July 1995 was an act of a genocide because all the victims constituted an important part of the group. 155The court stated that the "Bosnian Serb forces knew, by the time they decided to kill all of the military aged men, that the combination of those killings with the forcible transfer of the women, children and elderly would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica". 156Hence, the crucial element here is the impact that killing even a part of a group can have on the survival of the group as a whole. 157n this context, private armies were developed, namely commercial enterprises, which 'sell' military services usually in fragile states facing a crisis i.e. a civil conflict.This article examined the behaviour of the PMCs in conflict areas because its aim was to detect any possible violations and afterwards to test whether these violations fall under the category of International Criminal Law.
We studied three representative cases of private armies' actions the last two decades.Specifically, Executive Outcomes in Angola and MPRI in Former Yugoslavia in mid-1990s and Blackwater in Iraq in early 00s.These companies were chosen because they were multinational companies that operated globally, they provided a variety of services, they acted in conflict areas, they sometimes took direct part in hostilities, and they were related to illegal behaviour and 'scandals'.Our analysis proved that all three PMCs committed serious violations during their presence in these conflict areas.The illegal acts we detected concerned violations against international law and international criminal law like war crime and genocide.After the analysis of these two international crimes and its elements we concluded that the violations of the PMCs and its members constituted war crimes-article 8(2)(e) ICC Statute-in the case of EO and Blackwater and the crime of genocide-article 6 of ICC Statute-in the case of MPRI.
However, the illegal action of PMCs and their personnel raises some important questions concerning the science of public international law.We must bear in mind that traditional theory of international law considers that perpetrators of international crimes can only be states and their agencies.This article demonstrated that PMCs could actually be the new perpetrators of international crimes.But how does international law treat these new actors of international crimes?Are there any rules or provisions of international law, which provide for the unlawful conduct of private soldiers?These are very important questions that the science of International Law must consider.
In conclusion this article did not mean to demonize or to exclude the use of PMCs in general.In addition the use of PMCs, for example, in peace operations by the UN is a positive side of this industry.This article wanted merely to exhibit a different scope of the PMCs behavior and to reveal the consequences of their possible illegal actions.