The practice of paying for military or security
services is as old as war itself. Today, rapid growth and
change in the for-profit military and security industry
poses major challenges for those concerned about enforcement
of human rights and humanitarian law.
In September 2007, employees of a US-based private
military and security company named Blackwater Security Consulting
were working their way through the crowded Nisour square
in downtown Bagdhad, clearing the way for a US State Department
diplomatic convoy.
What happened next is still in dispute. The guards hired
by Blackwater say they came under attack and fired back at
their attackers in self-defence. Witnesses in the market
that day said the Blackwater employees opened fire without
provocation and continued to shoot at civilians trying to
flee.
A few things about the incident are certain, however. When
the firing ended, a total of 17 civilians lay dead, and at
least 20 more were injured. The Iraqi public was outraged
and a major diplomatic rift had been created between the
US and the fledgling Iraqi government.
The episode also marked a turning point in the debate over
the increased use of private military and security companies
(PMSCs) in the prosecution of war. Taken along with the implication
of private contractors in the scandal at Abu Ghraib prison
in Iraq in 2004 — in which prisoners were subject to
various forms of abuse and torture — the Blackwater
episode heightened debate about whether basic functions of
war should be outsourced to private enterprise.
Subsequent legal obstacles to prosecution and obtaining
redress for victims further raised the question of whether
the rise of PMSCs was creating a growing class of military
personnel who were effectively operating outside the standard
rules of war. Even many experts didn’t have answers
to some fundamental questions: What is the status of private
contractors under international humanitarian law (IHL)? Are
they combatants, civilians, mercenaries or something entirey
new? And what rules are they bound by?
Not above the law
In 2008, a total of 17 states signed a statement that, in
essence, answered the above question with a firm “no” — private
contractors are not above the law and do not operate in
a legal vacuum.
Now signed by 42 states and the European Union, the statement
(known as the Montreux Document) reaffirms that international
humanitarian law (IHL)and human rights law do apply to private
contractors. States, meanwhile, are obliged to ensure that
contractors comply with these laws.
While not trying to legitimize the PMSC industry, or take
a position on whether the use of private contractors is good
or bad, the Montreux Document takes on questions such as
the status of PMSC personnel under the 1949 Geneva Conventions
and the ways to ensure individual accountability for misconduct
in different jurisdictions.
A joint project of the Swiss Federal Department of Foreign
Affairs and the ICRC, the Montreaux Document encourages states
to develop regulations aimed at preventing and prosecuting
abuses. It also offers a catalogue of good practices to help
governments implement these obligations in the field.
The problem is that the regulation is not keeping up with
the industry. Many states still do not have sufficient domestic
laws, regulations or practices in place to oversee the rapidly
changing industry, which has experienced explosive growth
in recent decades and is now estimated to be worth more than
US$ 100 billion.
Explosive growth
How quickly has it grown? After the US invasion and subsequent
occupation of Iraq in 2003, it is estimated that more than
100,000 private contractors were employed in functions
ranging from guarding convoys to logistics support, intelligence
analysis, checkpoint duty, among many other duties. This
was a tenfold increase over the previous Iraq war. Meanwhile,
in Afghanistan, the number peaked at around 20,000.
Why this growth? In the years leading up to the attacks
on New York and Washington DC in September 2001, the US military
had been going through a period of downsizing. With two major
ground wars launched in Afghanistan and Iraq, US military
leaders felt they had to augment their forces. At the time,
there was also a trend favouring the privatization of government
services, from prisons to hospitals and schools.
The trend goes well beyond the US military. “Most
people think of PMSCs and they think of Iraq and Afghanistan,” notes
Faiza Patel, chair-rapporteur of the United Nations Working
Group on the Use of Mercenaries. “But in fact they
are used in many spheres. They are used for example to provide
security for extractive industries or as part of drug eradication
efforts in Latin America.”
Indeed, the vast majority of the work being done by this
sector occurs in situations that are not considered areas
of armed conflict and are outside the scope of IHL. They
are nonetheless often operating in volatile areas with violent
crime or civil strife where kidnappings, assassination and
other attacks are a daily risk of doing business.
Given the complexities, how should this massive new industry
be regulated? In situations of armed conflict, who will ensure
that they respect the norms of IHL and who will prosecute
contractors if they violate those laws?
The cases of abuse at Abu Ghraib offer an example of the
challenges being faced. While there have been numerous
prosecutions of low-level military personnel on a variety
of charges related to the abuse of detainees, none of the
private contractors connected to the Abu Ghraib abuses have
been brought to court on criminal charges. In some cases,
contractors were also granted immunity from prosecution under
Iraqi law.
Subsequent civil lawsuits by former detainees under US law,
meanwhile, have been blocked or delayed by arguments that
the contractors should either enjoy the same immunity from
lawsuit as soldiers during combat or that they should be
given a ‘battlefield exemption’. This exemption
would allow civil cases to be dismissed on the basis that
courts should not second-guess decisions made in detention
facilities during the heat of battle.
“These cases have been going on for many years without
even getting to the point of looking at the merits of the
case,” notes Katherine Gallagher, a senior lawyer for
the Center for Constitutional Rights, based in New York,
which has filed lawsuits against two military contractors
on behalf of 330 Iraqi detainees held at Abu Ghraib in 2004.
The challenge of regulation
Whatever the outcome of cases such as these, the focus of
many working in the field today is to prevent future abuses
and provide clarity about the rights and duties of private
contractors, who are considered as civilians and protected
from attack under IHL unless they directly participate
in hostilities. (It is worth noting, however, that these
protections, and what constitutes “participation
in hostilities,” are difficult to broadly define
as they depend on the context and the circumstances.)
A clear understanding about their status and obligations
is critical as contractors often work in extremely volatile
situations. In Iraq, numerous PMSC personnel (including from
Blackwater) were killed while performing a wide range of
duties (both security and non-security related) for the United
States government.
At the same time, the status of contractors as civilians
means they would not have to be treated as prisoners of war
if captured and would not have the same immunity from criminal
prosecution in civilian courts for acts committed as part
of combat operations.
Attempts by states to grant immunity from domestic law to
private contractors during specific conflicts (as was often
the case during the 2003 Iraq war), while at the same time
blocking civil or criminal cases on grounds that contractors
are effectively acting as soldiers, highlight the need for
greater clarity.
The Montreux Document offers guidance to help states sort
out complex legal issues. But it is now up to states that
have signed the document to follow up, says Marie-Louise
Tougas, a legal adviser for the ICRC who specializes on how
IHL interacts with private military and security companies.
“The challenge now is for states to implement their
obligations under IHL in this regard,” says Tougas. “What
we are doing is assisting states in developing the tools
to implement the obligations described in the Montreux Document — enacting
national legislation, establishing the oversight mechanisms
and creating licensing controls.”
Voluntary enforcement
But legislative reform takes time and each country will likely
take its own approach. For these reasons, some key efforts
at reform are happening outside the legal system. A case
in point is a recently created International Code of Conduct
(ICoC), which is being championed by the Swiss government
and many in the industry, that would establish a system
by which companies voluntarily agree to be regulated by
a multi-sector panel of experts.
Governments, meanwhile, are encouraged to consider
the company’s standing vis-à-vis this code when
they award security contracts. The United Kingdom, which
is home to many of the world’s largest private security
firms, has already agreed to award contracts only to companies
in compliance with the code.
As of August 2012, a total of 464 companies in 60 states
had signed up to the ICoC, which was developed by members
of industry associations, security experts, legal scholars,
governments and corporate leaders.
Advocates of the code argue that this type of requirement,
which could affect a company’s survival, offers sufficient
incentive for companies to maintain high standards in training,
carefully vet employees and adhere to principles of IHL and
human rights law.
The code itself is rooted in IHL and human rights law, says
Anne-Marie Buzato of the Geneva Centre for the Democratic
Control of Armed Forces, which is spearheading the effort.
“The use of force, for example, should not exceed
beyond what strictly necessary — it should be proportionate,” Buzato
told a recent gathering of experts at the International Institute
of Humanitarian Law in San Remo, Italy. “Contractors
should not use firearms against persons unless in self-defence
or in defence of others against imminent threat of death
or to prevent a serious crime involving grave threat to life.”
Some experts in the field are skeptical of what they see
as industry “self-regulation” over critical life-and-death
matters and they note that some key aspects regarding the
code’s enforcement are still unresolved. But Buzato
argues the model is more one of ‘co-regulation’ given
that experts from government and civil society would be members
of panels conducting audits and reviewing compliance with
the code.
A call for a new convention
For some, the code is at least a positive step while binding
laws or agreements are developed. But for others, neither
the ICoC nor domestic regulation would be enough to control
companies operating in multiple jurisdictions — often
in places where investigation of allegations would be challenging
at best. What is needed, some argue, is a binding international
treaty.
At the United Nations, the Working Group on the Use of Mercenaries
is developing a draft convention that would require states
to regulate the export of security services much more stringently.
Among other measures, the convention would limit the range
of activities that governments can outsource to private contractors
and require signatory states to develop licensing schemes
similar to what is in force regarding the export of weapons.
“The idea is to not just regulate the export of arms,
but also of armed men and women,” the Working Group’s
Faiza Patel told the San Remo gathering.
Many countries, says Patel, have stringent laws and
licensing schemes for domestic security companies, but lax
controls for companies working abroad. “To allow
PMSCs to operate [without regulation] in volatile environments
with sophisticated firepower, with all the risks to human
rights and humanitarian law that such operations entail,
seems to me an abdication of basic due diligence,” says
Patel.
At the moment, however, there is not sufficient support
among key states, where many PMSCs are based, for a new international
treaty to be adopted.
A moving target
One of the key challenges facing all these efforts is that
the industry itself is a moving target. In the Autumn 2012
issue of the International Review of the Red Cross, an
edition dedicated to exploring ways in which business impact
conflict, Sarah Percy of Oxford University writes that
while the PMSC industry is evolving quickly to meet new
market and political demands, the process of developing
international regulations is moving much more slowly.
As the ‘gold rush’ of the Iraq and Afghanistan
wars has settled down, the industry has already adapted to
new markets, namely protection of maritime trade against
piracy, protection of humanitarian aid delivery and even
delivery of aid itself.
To Percy, the current approaches toward regulation are still
too much geared towards an older model of PMSCs as mercenary,
or as companies providing services in an international armed
conflict as in Iraq. “As a result, regulators at all
levels have often been stuck in lengthy negotiating processes
while the target of their regulation is rapidly changing
form,” she argues.
“The private security genie is out of the bottle,” she
writes. “At the moment, however, states are largely
letting the genie do what it wants and then disciplining
it for going too far, rather than setting the parameters
for action from the beginning.
“A discussion about the appropriate role of private
force might be difficult, and it might need to begin domestically,
but it is perhaps the best chance of regulating an industry
which is always likely to change faster than regulators can
respond,” says Percy.
By Malcolm Lucard
Malcolm Lucard, editor, Red Cross Red Crescent magazine.
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