The Rise of Private Military Companies and the Legal Vacuum of Regulation

Author: Franklin Mwirigi Murianki

Originally Published at Peace and Conflict Monitor on: 06/01/2010

Category: Special Report

“He who holds his State by means of mercenary troops can never be solidly or securely seated. For such troops are disunited, ambitious, insubordinate, treacherous, insolent among friends, cowardly before foes, and without fear of God or faith with man. Whenever they are attacked defeat follows; so that in peace you are plundered by them, in war by your enemies. And this because they have no tie or motive to keep them in the field beyond their paltry pay”.[1]

Introduction

The end of the Cold War was celebrated as ushering a new era in the once global bi-polar system. The end of the ‘Iron Curtain’ in Europe had its fair share of merits and demerits. Theoretically and practically, the arms race was on the verge of winding up. With the slowing of the arms race came the inevitable budget cuts in defence spending;[2] for the major powers, this in-turn resulted in the military downsizing its personnel. These post-Cold War demobilisations of armies created a large pool of available military talent.[3] Additionally, large numbers of intrastate conflicts threatened the stability of a globalizing international system and have created a demand for private security to fill the superpower void and economic globalisation has led to greater profits from investments in natural resource extraction operations in less developed nations.

Private military companies are considered to be present day ‘mercenaries’ and this presents challenges in defining a mercenary under humanitarian law because of the nature of work of these corporations. Are their employees recognized as civilians, yet performing purely military functions? Or as combatants, as they wield the force used in war? It has been documented that Blackwater employees were used to apply torture to victims in the Abu Ghraib prison in Iraq. The torture and abuse scandal at Abu Ghraib horrified people around the world and raised controversy over the role and activities of PMC personnel in the intelligence and interrogation process. The number of PMC personnel at Abu Ghraib is far from clear, but at least 37 interrogators from private contractors were operating in the prison. A whole series of mostly internal military investigations were conducted as a result of the revelations at Abu Ghraib. At least two reports (The Taguba and Jones-Fay Reports) implicated contractor personnel in the scandal. A lack of proper vetting of PMC personnel was also uncovered.[4] A Blackwater operation in Falluja in 2004, as a decisive force of counter-offensive strategy, begs questions of the legal use of force by a non-state actor. The monopoly of violence is the preserve of governments and allows for Western states to incorporate contractors to serve as major wielders of violence in multiple military functions of logistics, intelligence collection, and personnel security and special operations. The issue of commercializing war by contracting companies run largely by former professional soldiers, intelligence officers and police is leading to major discussions on its position under international law.

Mercenaries/Private Military Companies

The definition of a mercenary and a PMC is blurred. Spear defines PMSCs[5] as “corporate entities that provide military expertise and other professional services essential to combat and warfare[6].” Those ‘other professional services’ are extremely open-ended, and in some cases come uncomfortably close to mercenary activities.[7] Singer defines PMSCs as “‘corporate bodies that specialize in the provision of military skills – including tactical combat operations, strategic planning, intelligence gathering and analysis, operational support, troop training, and technical assistance.”[8] The activities of PMSCs are diverse and the list that Singer provides is obviously not exhaustive because, as corporate entities, it makes business sense for PMSCs to diversify their expertise in order to maximize their profits.

The provision of these companies is that of security as a product; the speed, efficiency and cost benefit to governments as compared to maintaining a standing army for times of both war and peace. A good example being the 1999 Executive Outcomes operation in Sierra Leone, as contracted by the government of Sierra Leone the operation succeeded in counterattacking rebel controlled areas and mines and reinstalled the government. The PMCs remuneration was pegged to mineral concessions and diamond mines. This has highly been viewed as a success story by the PMCs industrialists’ eager to promote a corporate image in the business of war.

As Singer puts it, “though both PMSCs and mercenaries can be considered to be ‘security workers’, there is a significant difference in the work they do.”[9] According to a report by the Geneva Centre for the Democratic Control of Armed Forces, PMSCs “do not fit into the narrowly-drawn definition of mercenary forces as they normally consist of retired military personnel, who are no longer active in security forces [and who] offer a wide range of services from combat and operational support, or advice and training, to arms procurement, intelligence gathering, or hostage rescue, etc.”[10]

From a legal perspective, a PMC is a corporate entity, while a mercenary group is not. Singer attempts to categorize PMSCs into “three broad types of units linked to their location in the battle space: those that operate within the general theatre, those in the theatre of war, and those in the actual area of operation, that is, the tactical battlefield.”[11] These units include military provider firms, military consultancy firms, advisory and training services and military support firms, which provide non-lethal aid and assistance.[12]

Sovereignty

Max Weber identified the state as that entity which “successfully upholds a claim to the monopoly of the legitimate use of physical force in the enforcement of its order.”[13]The rise of nationalism made for patriotic enlistment for a standing army to defend borders and for security; hence, the deployment of violence was the preserve of the state. As Sapone notes, “The emergence of private military firms (PMFs) and the change in military relationship between states and private entities suggests that some states no longer exert explicit control over military technology or manpower. Military skill is becoming increasingly privatized and commodified.”[14] Observers believe that the dramatic growth in private security challenges the international state system’s three hundred year control over military might. PMFs now stand in a position to eventually threaten global order with military force that is less accountable and controllable than state militaries.[15] The role of regulating instruments of violence lies with the state, but if the state cannot effectively regulate PMCs, the role of the state has been severely compromised by a non-state actor. Therefore, the authority of the state is eroded by these new powerful actors who shoulder military responsibility. The primacy of states as the sole actors in the international relations realm is also being questioned. The peculiar nature of this problem is not comprehensively addressed in national and international law regulations. This problem was evident when, “In the late 1990s a private military company composed primarily of South then African Special Forces from the former apartheid regime, called Executive Outcomes, was engaged by the governments of Angola and Sierra Leone to fight rebels in those countries whom national forces there had failed to stop. While that company is praised for its efficiency (especially by industry lobbyists), its record of compliance with international humanitarian law is questionable.”[16]It can be argued too that the client states´ sovereignty is not absolute, as there are non-state actors that have been contracted to carry out the country’s primary function of state security and defense; hence their sovereignty is called to question. The obligations and responsibilities of states under international law require that they take liability for actions perpetuated by their civilians, yet the state contracted the corporations to act on their behalf. This complicates the issue of liability, questioning who should be liable for human rights violations committed by these non-state actors in other states. Blackwater has been given immunity under the Coalition Provisional Authority of Iraq;[17] “The Coalition Provisional Authority (CPA), the U.S.-led entity charged with governing Iraq through June 2004, stipulated that contractors [were] subject to the laws of their parent country, not Iraqi law.”[18]Another complexity occurs when PMCs “have been engaged in more dubious practices such as assisting in coup d’états.” Attention to such companies and calls for their international regulation have recently been bolstered by Sir Mark Thatcher’s guilty plea in his trial for planning and organizing a coup in Equatorial Guinea in collaboration with a PMC.[19]The US Central Intelligence Agency (CIA) is also known to engage private companies to work in South America in it’s ‘‘war on drugs’’, which sometimes end up fighting against the FARC in Colombia.[20] This goes to show that the PMC industry is clearly multifaceted and complex, operating around the globe in a myriad of situations and poses a grave danger to the nation-state and functions of the nation-state.

Human Rights Violations

As mentioned earlier, the 16th century creation of the nation-state and state responsibility took on the state as the sole custodian of the monopoly of violence. The state is responsible for the actions of its military personnel, whether abroad or at home. For any human rights violations, the state has the right to take disciplinary action on military personnel under its domestic legislation or under international law. In the case of PMC personnel, the onus of responsibility is vague and ambiguous.Compared with state-run military and police forces, which are subject to fairly strict regulation by their governments and international laws, PMSCs act with relative impunity in the current international and domestic legal landscape. The result involves increased human rights abuses and decreased accountability for the actors committing those abuses.[21] Further, private military companies, mercenaries and others privately engaged in combat in the shadows of war in weak states, often operate without being accountable for the violations of international law, including human rights[22] and the plundering of resources.

The right to self-determination and right to security are seriously impinged by the use of mercenary corporations in war zone areas, their interest being monetary alone. Antony Barnett and Patrick Smith’s highlights

Dramatic evidence that America is involved in illegal mercenary operations in East Africa has emerged. The leaked communications between US private military companies suggest the CIA had knowledge of the plans to run covert military operations inside Somalia – against UN rulings – and they hint at involvement of British security firms [… it further reveals] how US firms have been planning undercover missions in support of President Abdullahi Yusuf’s transitional federal government against the Supreme Islamic Courts Council – a radical Muslim militia which took control of Mogadishu, promising national unity under Sharia law.Evidence of foreign involvement in the conflict would not only breach the UN arms embargo but could destabilize the entire region.[23]

For PMCs to be directly involved in combat activities raises concerns of whether in the course of their duty they violate human rights and are involved in genocide, crimes against humanity, assassinations and murder which fall under the province of international humanitarian law. The lack of comprehensive national and international law legislation, and the vagueness’ of the legal person of a private military contractor under international law complicates the issue of immunity.

International Legislation against Mercenaries

As these PMCs take on a corporate image of mercenarism, there is no international law explicitly enacted specifically to address PMCs. This is only for mercenaries. The actual definition in international law as set out in Additional Protocol I to Article 47 of the Geneva Convention (1949) classifies a mercenary according to the following criteria:[24]

(a) Is specially recruited locally or abroad to fight in an armed conflict;

(b) Does, in fact, take part in activities;

(c) Is motivated to take part in hostilities essentially by the desire for private gain

(d) Is neither a national of a Party to the conflict nor a resident of a territory controlled by a Party to the conflict;

(e) Is not a member of the armed forces of a Party to the conflict;

(f) Has not been sent by a State, which is not a Party to the conflict on official duty as a member of its armed forces.

This definition ignores foreign personnel serving the armed forces of another state. For example: the French Foreign Legion. The motivations to take part in hostilities are varied and may not only be driven by desire for private gain, including; ideology [25]or religion. Military advisors and trainers in other countries are not included in this definition, yet they sometimes are part of direct combat operations.

The ambiguous nature at which the extent to which human rights obligations apply to the conduct of private military companies remains unclear at the international law level: first, because there is no agreement as to whether human rights obligations are binding upon private actors; second, because the conduct of these actors normally occurs abroad and therefore outside the ordinary territorial and jurisdictional sphere of application of human rights obligations.[26] The state, having contracted the PMC does not have much control over its operation abroad and thus, the state may not be held responsible for having failed to prevent abuses by private military contractors.

Thus, their acts are not in principle acts of state, but acts of private persons, even though their services often entail carrying weapons and exposing other persons to the risk of injury. The problem of accountability becomes even more complex when private military contractors are used by international organizations, such as the UN, the EU or NATO. In this case, their conduct may call into play the still elusive concept of institutional responsibility of intergovernmental organizations, a topic which is now the object of a study and possible codification by the International Law Commission.[27]

Domestic Law

The subsequent weakness of international law has placed greater responsibility on domestic legislation to regulate this issue. Under domestic law and jurisdiction, the legal tools to ensure effective regulation of PMCs and monitoring of their activities become even more uncertain. Each nation´s domestic laws vary with respect to the use of PMCs; some prohibit it while others don’t. For example, South Africa,[28] which led the closure of Executive Outcomes in the 90s, was one of the first countries to ban the use of mercenary use, yet a very large number of South Africans are for hire in Iraq, serving under various PMCs .Therefore, domestic laws cannot regulate private persons from selling their services abroad and hence, jurisdictional questions arise. Legal proceedings against private military companies and their employees for violations of the rights of third parties committed in the performance of their services are relatively rare and mostly concentrated in the United States, where the Alien Tort Claims Act (ATCA) is suitable, at least theoretically, to provide a legal basis for international law claims.[29] But so far, efforts based on the act have met with little success for obvious reasons, such as the use of the political doctrine question[30] and legal immunity used by the private contractors..

Similarly, criminal prosecution of private military company employees who have committed abuses are rare and fraught with a number of obstacles that go from blanket immunity in the territorial state where the abuse was committed (as in the case of Iraq and US private military companies[31]) to meeting the threshold of ‘violation of international law’ serious enough to trigger the ATCA, to political questioning and evidentiary constraints that may hinder effective prosecution.

 

 

Recommendations and Conclusions

One of the main tools for ‘socializing’ PMCs is litigation[32]. It could indeed be argued that, faced with the threat of public and private law litigation in relation to PMC abuses, PMCs will increasingly set up their own corporate social responsibility and accountability mechanisms. This “tool” would inevitably force PMCs to hold more accountability for the actions of their employees. The cost of lawsuits and their corporate image would lead them to better practices and the respect for rule of law. For example, Blackwater’s licence in Iraq has been suspended[33] by the U.S government and one reason is because of the number of cases filed in the U.S domestic courts by families of the victims in Iraq as well as the families of Blackwater’s employees killed in Falluja in 2004.[34]

More comprehensive and exhaustive international treaties must be drafted to improve treaties like the International Convention against the Recruitment, Use, Financing and Training of Mercenaries as well as regional treaties like the OAU Convention for the Elimination of Mercenaries in Africa. OAU nations states, through their practices, should also create customary law that forces more state regulation on PMCs and ensures the jurisdictional capacity of the states. Nations states must also enact comprehensive domestic legislation concerning mercenaries as well as private military companies. Lastly, an international oversight body should be created to oversee and vet private military corporations and their employees, observe their field operations and decide in which conflicts these corporations should undertake. This is for the simple fact that developed states as well as developing states would contract PMCs for civil wars or resource wars.The regulation of PMCs should be a high priority of nation states, as their employment waters down the role of the state as earlier envisaged. The phenomenon of the UN and NGOs contracting PMCs brings more controversy to the issue other than regulation. It is already evident that the proliferation of PMCs overtime shows that this phenomenon cannot be abolished. Regulations and harsh domestic and international legislation is the best way forward to deal with the PMC menace.

Footnote:
[1] Nicolò Machiavelli (1505), published 1515.The Prince.Translated by W. K. Marriott 1908 Chapter XII Retrieved on 11/10/09 http://www.constitution.org/mac/prince00.htm

[2] James M. Cypher Military Spending after the Cold War. Journal of Economic Issues, Vol. 25, No. 2 (Jun., 1991), pp. 607-615 : Association for Evolutionary Economics Retrieved on 04/11/09 http://www.jstor.org/stable/4226441
[3] Figures from Centre for Arms control and non-proliferation. http://www.armscontrolcenter.org/policy/securityspending/articles/fy97_dod_request/index.html (accessed April 11, 2009)
[4] A Review of ICITAP’s Screening Procedures for Contractors Sent to Iraq as Correctional Advisors, Office of the Inspector General, U.S. Department of Justice, February 2005, www.usdoj.gov/oig/special/0502/final.pdf.(accessed May 11, 2009)
[5] Here i refer to Private military companies and Private security companies as one and the same. This is for the reason that some Private security companies also engage in military functions such as open combat.
[6] Spear, J (2006). Market forces: the political economy of private military companies. Fafo Report 531. Norway: Fafo Institute for Applied International Studies.
[7] Ibid.
[8] Singer, P.(2002).Corporate Warriors: The Rise of the Privatized Military Industry and Its Ramifications for International Security. International Security,26(3),186-220.
[9] Ibid.,
[10] Centre for the Democratic Control of Armed Forces (DCAF 2003) 71
[11] Singer, P.(2002).Corporate Warriors: The Rise of the Privatized Military Industry and Its Ramifications for International Security. International Security, 26(3), 186-220
[12].Ibid.
[13] Max Weber, The Theory of Social and Economic Organization 154 (A.M. Henderson & Talcott Parsons trans., 1947).
[14] Sapone, M (1999) ‘Have Rifle with Scope, Will Travel: The Global Economy of Mercenary Violence’, 30 W. Int’l L.J 1, 5

[15] Zarate, J. (1998). ‘The Emergence of a New Dog of War: Private International Security Companies, International Law,and the New World Disorder.Stanford Journal of International Law,34,75-162
[16] Singer indicates that they used cluster bombs and fuel air explosives, ibid. Nathaniel Stinnett says that EO commanders reportedly ordered their pilots to just ‘‘kill everybody’’. See his Note on ‘‘Regulating the privatization of war: How to stop private military firms from committing human rights abuses’’,Boston College International and Comparative Law Review, Vol. 28 (2005), p. 211, at p. 215. The fact that these companies are perceived as efficient may pose a challenge for those who defend international humanitarian law, which does not prioritize efficiency above all else.
[17] OFFICE OF THE ADMINISTRATOR OF THE COALITION PROVISIONAL AUTHORITY BAGHDAD, IRAQ PUBLIC NOTICE REGARDING THE STATUS OF COALITION, FOREIGN LIAISON AND CONTRACTOR PERSONNEL June 26, 2003

[18] Deborah Avant, ‘Think Again: Mercenaries’, July/ August 2004, accessible at http://www.foreignpolicy.com/story/files/story2577.php (visited Oct. 2, 2004) [Emphasis added].
[19] Thatcher pleaded guilty to allowing use of aerial support but denied any knowledge of what it was being used for.
[20] Former Special Rapporteur Enrique Ballasteros refers to such use in his final report as Special Rapporteur, UN Doc E/CN.4/2004/15, paras. 26 and 32.
[21] Caio A. Arellano, Frank C. Newman Intern.Holding Private Military and Security Companies and Mercenaries Accountable for Human Rights Violations. Human Rights Council 7th Session Agenda Item 3: Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination. http://www.humanrightsadvocates.org/images/Arellano2008%20%20Mercenaries%20and%20Corporate%20Accountability%20-%20Long.pdf
[22] United Nations, Use of Mercenaries as a means of Violating Human Rights and Impeding the Exercise of the Right Peoples to Self-Determination, submitted by Mr. Enrique Bernales Ballesteros, Special Rapporteur, G.A. Res. 198/6.E/CN.4/1999/11 (Jan. 13,1999).
[23] Barnett, A., &Patrick Smith, P. ( 2006, September 10) SOMALIA: US accused of covert operations in Somalia. Emails suggest that the CIA knew of plans by private military companies to breach UN rules The Observer(UK) Retrieved from http://www.guardian.co.uk/world/2006/sep/10/antonybarnett.theobserver
[24] Roberts A., & Guelff R., (2000) Documents on the Laws of War Oxford: Oxford University Press, p447 http://www.conflits.org/index11502.html#ftn30
[25] Idealists can be found on either side in a conflict. Those British mercenaries who fought in Angola included Nick HallHall, who claimed he was fighting not for money, but against communism, even if it meant fighting without pay in a distant country far from home, in Dempster C., & Tomkins D., (1978) Firepower London: Corgi, p59 Halls political views were in fact extreme rightwing, in Mockler A., (1986) p220.
[26] Francesco Francioni, Private Military Contractors and International Law: An Introduction The European Journal of International Law 19 No. 5 , 961 – 964 doi: 10.1093/ejil/chn071

[27] Ibid..
[28] South Africa has become a frontrunner in postulating domestic laws against mercenary activity in Private Military and security companies chances problems, pitfalls and prospects. Jagger; Thomas; Gerhard Kummel (Eds.)2007
[29] Ibid,
[30] Political Doctrine Question: a doctrine under which a court will refrain from adjudicating a question that is more properly resolved by the other branches of government because of its inherently political nature and not because of a lack of jurisdiction.
[31] In accordance with international law, the CPA, Coalition Forces and the military and civilian personnel accompanying them, are not subject to local law or the jurisdiction of local courts. With regard to criminal, civil, administrative or other legal process, they will remain subject to the exclusive jurisdiction of the State contributing them to the Coalition. A mechanism exists for this immunity and jurisdiction to be waived by the State contributing the personnel to the Coalition at their discretion.

[32] Cockayne, “Make or Buy? Principal – Agent Theory and the Regulation of Private Military Companie”s, in S. Chesterman and C.
Lehnardt (eds), From Mercenaries to Market (2007), at 196, 213 – 216 (observing, inter alia, that ‘the key factor in transforming PMC regulation may turn out to be litigation’, that litigation is one of three major factors ‘likely to drive regulatory harmonization in the coming years’, and that ‘proxy action by third parties may help make PMCs – and their state clients – socially responsible’).
[33] Defense industry daily (September 2007) Blackwater’s Iraq License Suspended Retrieved on 09/11/09 http://www.defenseindustrydaily.com/blackwaters-iraq-license-suspended-03834/

[34] Jeremy Scahill(October 22, 2009). The nation .Judge Refuses to Dismiss War Crimes Case Against Blackwater Retrieved on 11/10/09 http://www.since1865.com/doc/20091109/scahill

Bio: Franklin Mwirigi Murianki is an MA candidate at the University for Peace, currently enrolled in the International Peace Studies Programme