Isenberg Institute of Strategic Satire
Over the years we have seen numerous cases of various abuses and outright crimes by private military and security contractors (PMSC). True, they don’t happen every day, and don’t reflect the actions of the vast majority of the contractors working overseas but it would be foolish to say it is just the actions of a few bad apples either. Why these crimes happen says as much about the overall framework of accountability that various governments have set up and, with varying degrees of effort and resources, have enforced. But that is not the point of this post.
What is the point is this. When, in the past, crimes have become public, governments have brought cases against the accused offenders with varying degrees of success. To name a few:
the killings of Iraqi civilians by Blackwater contractors at Nisoor Square in 2007, the abuses at Abu Ghraib prison in Iraq by Titan reportedly aided by Titan and CACI contractors, DynCorp contractors, being accused of rape and running underage prostitution networks in association with their security duties under contract with the US military in Bosnia; PMSCs accused of killing Ecuadorian peasants by spraying their villages with toxic defoliants and accidentally shooting down a missionary plane incorrectly suspected of drug trafficking.
But it is still fairly rare for the perpetrators to get convicted and go to prison. Why is that?
The paper Protecting the Victims of the Privatization of War by Willem van Genugten, Marie-José van der Heijden, and Nicola Jägers, published earlier this year by the Tilburg Law School in the Netherlands offers some answers.
Before going any further it is important to note, as the authors point out, that, the number of victims of PMSCs is small compared to those that become the victim of lethal force used by regular armies. However, the latter category is protected by the international humanitarian law framework, while the practical application of this framework to protect civilians that fall victim within or at the hands of PMSCs is problematic.
That said one obvious answer is that the interests of PMSCs and their clients diverge significantly.
Many PMSCs are professional firms that operate in a correct and responsible manner, in such fields as logistic services, training and operational support. However, the primary motive of these companies – usually operating at a great distance from the sending state – is an economic one which does not necessarily correspond with the public interests of the state.
Another, and, by now, reasonably well appreciated, is that international law does not explicitly regulate the activities of PMSCs operating in conflict areas. True, specific norms have been developed in relation to mercenaries. But, only in very limited circumstances would that be relevant for PMSCs.
Interestingly, PMSC employees themselves suffer for the lack of clarity in international risk. Since, as their advocates often point out, they are not officially considered combatants, so they will generally lack the Prisoner of War status,
The bigger problem, of course, is that states, not private companies, are the basic building block, under international law. While there are circumstances in which the action of a PMSC can be attributed to the state that hires them, in general, as the authors write, “Overall, it may be concluded that attributing, or trying to attribute, international law violations by PMSCs to states is quite complex.”.
And that assumes that a state might try to exercise its responsibility towards a PMSC in a maximalist, rather than a minimalist, way, which is usually not the case.
But, even if a state gave it one hundred percent there would still be a problem because:
We must also acknowledge the fact that state responsibility can only provide a partial answer to the problems posed, as by far the majority (over 80%) of PMSCs are hired by nonstate actors such as NGOs and corporations. The doctrine of state responsibility may not offer viable solutions for the victims in the context of PMSCs hired by other private entities.
If international law is lacking, what might be an alternative? One frequent suggestion is using the court system. In the United States, which is one of the largest clients of PMSCs and because it is the home state of many PMSCs there are several statutes and codes which offer a basis for doing this, such as the Military Extraterritorial Jurisdiction Act, Uniform Code of Military Justice and Alien Tort Claims Act. While various cases have been brought using all of these, they still suffer from various limitations.
However, the authors note that one US administrative law, the 1976 US Arms Export Control Act, allows
the US President to control the import and export of defense-related services including over conducted by PMSCs. Companies have to apply for a license before engaging in a contract with a state or other client in a foreign country. This mechanism allows the President to have an overview of the company before granting a license. Where the executive incorporates human rights concerns into the licensing system, the licensing system could be used as an additional tool for ensuring compliance with human rights standards. This system, however, offers no trigger mechanism to be initiated by victims where the government fails to deliver.
Here is how I look at things. Over the years the PMSC industry has given us a lot of happy talk about how the ability to investigate and prosecute PMSC crime has improved. And, if all you are doing, is comparing the present day to the way it was, say, back in 2003, when the U.S invaded Iraq, then, yes, that is certainly true.
But, I think the way the authors conclude says it best:
The overview – or rather: short impression – of US statutes and case law relevant for the PMSC issue as an example of regulation aimed at PMSCs at the national level shows at least two things: there are more possibilities for victims of illegal PMSC activities than one might think of at first sight, and there is a willingness to further adapt the legislation in order to include such activities. However, major effort, for instance initiated by new cases, is needed to further strengthen the chances for serious action against violators and redress for victims. Despite the possibilities available, it can be observed that the existing legal routes are scattered. There is a long way to go before justice is achieved for the victims of PMSCs.