Hi all--
The news of Blackwater's contract renewal has once again raised concerns about the lack of oversight on private military firms. Whether regarding the contract employees themselves, or the companies who pay them, there has been little success is creating legal mechanisms to govern the growing number of private military personnel.
This diary is some research I did on the matter addressing oversight efforts on the international, regional, and state levels. It was written about a year ago but little has changed. So I hope it provides you with a little more history, context, and understanding of what has and hasn't been tried.
(Warning: it's LONG -- but I recommend at least reading the bibliography, which I'll post immediately after since the formatting kills my footnotes anyway. Hopefully someone still comes to Kos for something other than pithy candidate diaries...)
Unknown Soldiers: On Legal Regulation of the Private Military
"So we serve our master honestly, it is no matter what master we serve."
-Scottish Commander Sir James Turner, 17th century.
"Africa is the only continent where [we] can still, with 500 men, change the course of history."
-French foreign minister Louis de Guiringaud, 1977.
"These guys run loose in this country and do stupid stuff. There's no authority over them...they shoot people, and someone else has to deal with the aftermath."
-Brig. Gen. Karl Horst, 3rd Infantry, Baghdad, 2005.
Twelve-year-old sex slaves "owned" by American military contractors, forced into prostitution, brazenly dragged to dinner parties at the local homes of other private military personnel. DynCorp helicopter mechanic Ben Johnston leveled this staggering allegation against his coworkers in Bosnia-Hercegovina. Since then, at least thirteen have been sent home and at least seven fired—none have faced criminal prosecution under Bosnian, American, or international law.
Welcome to the world of private military contracting. You’ve entered a de facto legal vacuum. Private contractors operate under ineffectual international regulatory statutes, and often beyond the grasp of state and regional laws. Although efforts have been and are currently being made to regulate the industry, the reality is that private contractors remain largely unaccountable to any authorities at any levels whatsoever.
In this paper I analyze current efforts to govern the behavior of private military contractors. First, I clarify the relevant terminology and sketch the history and current role of private militaries, particularly as related to Africa. Then, I summarize the theoretical strengths and weaknesses of supervising private contractors via three levels of jurisdiction: international, regional, and state (national.) Subsequently, I outline the existing and pending legislation across each of these three levels. Overall, I hope to provide a comprehensive picture of the legal status of private military contractors.
Terminology: A study of contrasts
The literature on this topic is awash in loaded language. Articles refer to everything from "mercenaries" to "private military contractors," to tree-hugging "peace operations officers." These individuals work for such animals as "private military firms," "private military corporations," and "peace and stability industry firms." It is necessary to discuss these variances briefly, in order to better understand the industry in question.
"Mercenary" is the sexiest term, appearing in at least a dozen movie titles since 1960. ("Private military contractor" appears in zero.) Merriam-Webster’s Dictionary, agnostic on the normative implications, simply defines a mercenary as "one that serves merely for wages; especially a soldier hired into foreign service." This definition is motivational, which is fine for a dictionary but problematic in judging real life cases.
"Mercenary" also appears in both international and regional law. The 1977 Additional Protocol to the Geneva Convention defines a mercenary by a number of requirements including direct participation in hostilities; non-membership in the formal armed forces party to the conflict; and a "desire for private gain" similar to the dictionary definition. Interestingly, the Convention adds that the mercenary must be promised "compensation substantially in excess of that...paid to combatants of similar ranks in the armed forces of [the party in question.]"
"Mercenarism" was also used by the Organization for African Unity (OAU) in their 1977 "Convention for the Elimination of Mercenarism in Africa." This document employs similar language defining the mercenary himself, but expands the crime to include individuals, groups, or associations involved with mercenarism. Hiring the mercenary thus becomes illegal, opening the door for prosecution of middlemen in addition to triggermen.
"Mercenary" is not a popular term among the contractors themselves. Corporations such as DynCorp and Blackwater, the aforementioned middlemen, reject the word and refer to themselves instead as "private military firms" or "security companies." Modern contractors work for these corporate entities and are therefore not treated legally as forces of a given state. (In contrast to the French foreign legion for example. )
The existence of the corporate entity is supposed to provide at least a modicum of supervision for the actions of contractors. Doug Brooks is the President of the International Peace Operations Association (IPOA), basically a trade association for private military corporations. He draws an explicit contrast between these contract employees and "freelance mercenaries." Freelancers offer their personal services directly, usually to unsavory regimes, outside the better-organized structures of private military corporations. However weak the regulation of these corporations may be, working for them is generally seen as more "legitimate" than freelancing, as it provides at least a little oversight. With freelancers portrayed as renegades, most scholars writing on the private military phenomenon refer instead to some variation on "private military contractors" working for "private military firms" — though journalists, for effect, tend to prefer "mercenaries."
The industry itself prefers the cuddly label of "peace operations." To the untrained eye, the website of the IPOA resembles Catholic Relief Services more than it does a collection of military contractors whose Executive Board features representatives of MPRI and Blackwater.
The variety of labels above illustrates the lack of clarity about the role of private militaries. Additionally, the choice of words sometimes belies the ideological leanings of the writer. For the purpose of this paper, I will refer to the individuals as "private military contractors" (PMCs) and the corporations in question as "privatized military firms" (PMFs.) Though these are not universal standards, they appear repeatedly in the literature and represent an evenhanded balance between the pejorative "mercenary" and the pollyannaish "peace operations" language.
The problem, however, goes beyond labels. Definitions of both the contractor and the firm are also contradictory. The PMF is a corporation, with full corporate legal status and rights. Under American law, this makes it a "person." It is the sole employer of the contractor, and receives contract money from states as its payment for provision of its services. From those contracts, it pays the salary of the contractors "on the ground."
The Geneva Centre for the Democratic Control of Armed Forces defines the company itself as offering "specialized services related to war and conflict, including combat operations, strategic planning, intelligence collection, operational and logistical support, training, procurement, and maintenance." The inclusion of items such as "logistical support" and "maintenance" allows for the categorization of non-combatants such as truck drivers or mechanics as PMCs.
This contrasts with the aforementioned 1977 Geneva Protocol and OAU documents, both of which explicitly define the "mercenary" by his "direct participation" in the conflict. How this relates to the modern PMC is ambiguous. There is no universal agreement on who counts and who does not, where "combat" personnel begin and end. P.W. Singer, one of the leading scholars on the matter, differentiates between "private military companies" (who provide only tactical services, i.e. "tip of the spear" operations) and "privatized military firms" (who offer the broader range of technical and logistical support as well.) In Singer’s analysis, the former is a sub-set of the latter.
Clarifying the titles and roles of both contractors and firms is complicated. As illustrated, there are contradictory labels and definitions across the field. Not all privatized military firms are created equal, any more than an ex-CIA man carrying a machine gun for Triple Canopy equals a Malaysian truck driver shipping sandwiches from one base to another. With that in mind, I will not belabor the point any further. What is crucial to consider, however, is the effect of this lack of clarity on the ability of policymakers to draft and implement consistent, enforceable legal frameworks for the regulation of PMCs and PMFs across diverse conflict areas and combat structures worldwide.
History: Sins of the past
The modern PMF is a bit of an anachronism. Until the rise of the nation-state, culminating in the 1648 Peace of Westphalia, most European military force was essentially "contracted" from feudal structures. As state economies increasingly outgrew their borders, state-backed economic actors increasingly took on the role of contractors in areas beyond the continent. The British East India Company, responsible for the colonization of India, claimed command of 150,000 soldiers by 1815.
In the 19th century, these non-state armies faded with further solidification of state control over military force. The last European army of foreigners was a unit of 16,000 Germans, Italians, and Swiss dispatched to the Crimea by the British in 1854. As of 1990, only eighteen states still employed foreigners in their standing armies, fourteen of which were the result of imperial legacies or manpower shortages.
With Europe moving away from private armies, Europeans increasingly looked abroad for the opportunity to play mercenary. During the Cold War, instability in Africa promised lucrative paychecks for white mercenary soldiers willing to variously support and topple regimes. The soldiers of the time were larger-than-life figures, such as Irishman "Mad Mike" Hoare, who infiltrated Seychelles in 1981 disguised as a member of a beer-tasting team. These bandits and brigands were backed with informal logistical support from anti-communist governments, as they roamed Zaire, Mauritius, Comoros, and a number of other war zones across Africa and Latin America.
The modern PMF, employing the modern PMC, is more reminiscent of the colonial/corporatist model. The Cold War mercenary system was individual-based, and thus ad hoc in nature. Cold Warriors were literally "hired guns," focused on combat rather than provision of other services. Frenchman Bob Denard epitomized the swashbuckling, anarchic experience, referring to his men as "Buccaneers of the Republic" and admitting to sometimes acting "when the lights were amber, rather than waiting for them to turn green."
With the end of the Cold War, a new model arose. It was driven by three dynamics: the end of the Cold War; transformations in warfare; and a general trend towards privatization of government tasks. Although the need for one-off combatants in Cold War conflicts was gone, the fall of the former Soviet bloc led to increased demand for private forces as standing armies were downsized. Simultaneously, the market was flooded with professionally trained soldiers from not only the former USSR but also the subsequent collapse of apartheid South Africa. Warfare in the developed world also became increasingly reliant on off-the-shelf commercial technology, often operated by representatives of private firms. Lastly, states turned over an increasing range of responsibilities (from education to prisons to war) to the marketplace.
From these trends arose the modern, corporate, integrated PMF. As noted, they offer a range of services from tactical advice to supply provision and support services to actual combat. David Shearer distinguishes the modern PMF from the old mercenary corps by the former’s distinct corporate character, public defense of its necessity and professionalism, and use of internationally accepted methods to secure their deals.
In the last 10 years, the Pentagon alone has entered into over 3,000 contracts with PMFs. There are over 100,000 PMCs in Iraq, making them the second-largest grouping after uniformed American personnel, and these numbers do not even count sub-contractors. (The numbers are extremely nebulous, and sources will variously cite different numbers for total individuals employed by U.S. firms, or only Americans employed by U.S. firms, or only combat versus non-combat employees etc.) Among these numbers employees are over 1,500 South Africans, most of who are former members of the apartheid South African Defense Forces (SADF.)
Apart from Iraq, Africa is probably the most popular stomping ground for PMFs. Executive Outcomes, based in South Africa and employing 2,000 SADF combat veterans, helped fight against insurgents in Angola and Sierra Leone—albeit with mixed results. The three-way border war between Guinea, Sierra Leone, and Liberia provided employment for Ukrainian, South African, and French helicopter pilots. Most spectacularly, the son of Prime Minister Margaret Thatcher was involved in a 2004 coup attempt in Equatorial Guinea in tandem with Simon Mann, a founder of Executive Outcomes. Skepticism remains high on the continent even while some Western pundits have called for expansion of the private military role in conflicts where traditional powers and the United Nations have been reluctant to commit troops.
Although Iraq is the flavor of the week, Africa has long been the preferred playground for private military activity. From mercantilist privateers to romanticized fortune hunters to corporatist contractors, PMCs have always had a home on the continent. One must consider this sordid history when attempting to draft modern regulatory structures for PMF behavior.
Frameworks: Three approaches
Studying these realities, the necessity of oversight becomes apparent. Legal regimes are needed to ensure that the modern PMF operates ethically. Just as there are rules of war for uniformed soldiers, there should be rules governing the behavior of private, corporatized contractors. There are three levels upon which this oversight can occur: international, regional, and state. In this section I will list some of the theoretical advantages and disadvantages of regulating PMFs at each of these levels. Primarily I look at how these levels variously address potential questions such as: consistency of legal definitions and rules; taking adequate consideration of history; political implementability (including international salability); and punishment enforceability.
International law
Efforts have been made to regulate PMFs using international law. This level of authority has a number of advantages and disadvantages in relation to PMF activity. On paper, it appears an ideal method. Binding international law would create the highest level of consistency regarding definitions of PMF practice. Given the aforementioned debates on the meanings and roles of PMFs, such consistency would be tremendously valuable. International law would also address the trans-state nature of PMFs, which often feature (state a) corporations hiring (state b) nationals to work in (state c) combat zones. Universalizing jurisdiction to an international body, under international standards, would similarly help level the power imbalance between the developed states where PMFs are often headquartered and the developing ones in which they operate. Lastly, international law has normative power. A "gold standard" of global behavior would encourage PMFs to continue efforts to differentiate from the previous, decidedly sketchy field of old-style mercenarism.
The major drawback is salability. International law has run into sovereignty concerns among the major powers, such as the failure of the United States and China to support the International Criminal Court. Although PMCs are not uniformed personnel, they are increasingly critical to the war efforts of states placed prominently among the permanent five on the United Nations Security Council. Many PMFs are also headquartered in the "Great Powers," and the desires of African governments have limited influence against the strength of western states in international institutions.
The need for universalizing definitions and restrictions on PMFs, while it appears ideal at first blush, ignores history. The American conception of the role of the PMF is very different from the Congolese view. African states may wish to ban PMFs outright, whereas the United States and United Kingdom may be concerned only with punishing the individuals who commit the most reprehensible acts. Unfortunately, the sordid history of private militaries is one of western moneymaking projects at the expense of African people and states. This could render it nigh on impossible to agree on standards of PMF behavior and privileges. In terms of regulating private military firms, international law makes the boldest promises at the highest prices.
Regional law
Regional law represents an interesting regulatory approach given the complex history of mercenarism across the globe. Regional institutions such as the African Union (AU) could be more realistic engines of change, rather than expecting the entire world to unite on a single agreed standard of practice.
Regional legislation, via existing regional institutions, would take better account of history. Protections and punishments for PMFs and PMCs would be informed by the "African experience," and thus salable to a broad array of states within the group. Although less so than international law, regional law could sometimes address the problem of mixed-state jurisdictions: South Africans fighting in Angola, for example. Approaching the question on this level could also have ancillary benefits, such as reinforcing the strength of regional institutions critical to any number of other areas such as political and economic cooperation. Regional legal frameworks, ratified and enforced by groupings of states, would be more authentic than international law and potentially more beneficial to participating states in the long run.
Unfortunately, regional law is only as good as the region itself. Africa-based legal regimes would encompass huge geographical jurisdictions, while relying on the poorest, politically weakest member states of any continent on the planet—the worst of all possible worlds in terms of enforcement. Although the European Union could potentially regulate PMFs on their end as well, the laws are unlikely to match African wishes given the nature of the industry. Laws promulgated by the AU would not necessarily serve as precedent beyond the continent, given the weakness of African political actors and the uniqueness of their historical experience.
African regional law would be largely unenforceable without either parallel legal regimes or major economic assistance from the developed world. Although it would be more authentic than international law, enforceable regional law is unrealistic. It would be prohibitively costly in terms of dollars and political risk for African states to challenge these largely western-based corporations for malfeasance in AU member states.
State law
State-based legal frameworks are a third option. This would mean physically and politically smaller jurisdictions than the other two possibilities. It would not necessarily require new enforcement entities beyond state courts. (This option includes, for example, the possibility of folding PMCs into uniformed military legal codes.) Since PMFs are corporations, they can also be regulated by state regimes via licensing mechanisms or other solutions. Interestingly, state law might encourage prosecution of a broader variety of offenses than regional or international law. An internationally funded court for PMC offenses, presumably up to tip-top international standards, would be tremendously cost-intensive and would thus have to focus on the most egregious offenses. State-based solutions would have a smaller pool of people to keep watch over and thus, if this is not leveled out by the poverty of individual states, will be able to perform more detailed oversight of PMF and PMC behavior.
Intuitively, salability would be easier than the other levels, as it would rely on political acceptance of only one government per set of laws. Like regional law, state law would derive from the experience of a country rather than universal standards. This sense of authenticity would aid political salability. While PMFs may attempt to exercise political influence on state actors, (though methods such as lobbying and campaign donations,) state law generally appears more workable than regional or international legislation.
However, the nature of the industry would cause tremendous difficulties to state-based legal regimes. Which of the three possible states involved in a single case has jurisdiction: the PMF home state, the PMC home state, or the state in conflict? Additionally, state laws offer no larger framework to appeal to when members of great powers violate the rights of weak-state citizens. Without regional allies, let alone a global legal standard, it would be difficult for a developing country to challenge a powerful one. This approach lacks the potential leveling mechanism of universal standards, which is troubling given the unidirectional nature of PMF involvement from the global north to the global south.
Similarly, the lack of universalized standards of practice could lead to disjointed prosecutions for acts that are considered criminal by one state but not another. If and when these cases pit the developed world against the developing, the power imbalance rears its head again. It is difficult enough for global hegemons to accept international rules that violate the perceived rights of their citizens—forget about tolerating prosecution for acts a state may not even consider criminal to begin with. At best, state-level laws would be a good way for governments to hold their own citizens and corporations accountable when stronger states do not object too loudly.
As illustrated, there are theoretical advantages and disadvantages to each level of legal enforcement. In the following section, I will outline past efforts at regulating PMFs across these various levels.
The status quo: What’s out there?
Having compared some of the strengths and weaknesses of various legal approaches, I will now review previous attempts at "real-world" implementation. Corporate self-policing is clearly not enough. As seen in the Bosnia case, temporary unemployment is hardly sufficient punishment for serious criminal behavior. The Abu Ghraib nightmare further hammered home the weakness of PMC oversight. Although the Pentagon found that "several of the alleged perpetrators" of detainee abuse were PMCs, none have since faced criminal charges. Regarding Abu Ghraib, IPOA President Brooks had this to say: "What happens is the people are fired...that's what you have to do in this environment." Brooks’ market über alles defense of criminal brutality reaffirms the need for legal regimes enforceable by entities outside of the industry itself.
International law
The status of PMCs under international law is contentious and contradictory. International law guarantees them neither protections nor punishments. The theory is murky, and the practice resultantly confused.
The Geneva Conventions are the predominant universal standard for the protection of soldiers and civilians in combat. It is unclear where modern contractors would fall within this. Article 4 of the 1949 Geneva Convention III defines conditions for prisoner-of-war (POW) status, but does not refer to anything resembling the current PMC. It lists various members of armed forces, members of militia and "other volunteer corps," crews of merchant marine and civil aircraft, and citizens who "spontaneously take up arms." The closest reference is to "Persons who accompany the armed forces without actually being members thereof, such as...supply contractors, members of labor units or of services responsible for the welfare of the armed forces..." This first half of the clause appears to include modern PMCs—but the rest of the clause promptly excludes them: "...provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model." Neither traditional "mercenaries" nor modern PMCs carry internationally standardized identification cards.
In light of neo-colonial adventurism in Africa, the United Nations (UN) passed a resolution in 1968 condemning mercenarism against national liberation movements. This was codified in 1970, with a UN declaration that states have a duty to prevent organized, armed incursions into other states. This was the first attempt to treat mercenaries clearly as "outlaws" in international law, suggesting that mercenarism is inherently a crime. (Rather than prosecuting mercenaries only for any individual crimes committed in the act.) However, it left enforcement up to individual states. There were no new mechanisms in terms of an international court or oversight body to operationalize this ideal.
Subsequently, the 1977 Protocol Additional to the Geneva Convention attempted to further clarify the status of private militaries. It also used the term "mercenary," and defined one by a number of problematic factors. Motivationally, the mercenary must be driven by "desire for private gain," and "promised...material compensation substantially in excess of that promised...to combatants of similar ranks." He also must be a citizen or resident of a state not party to the conflict. These are among the conditions required for an individual to be classified as a "mercenary" and subsequently excluded from the protections of POW status.
Not only is the motivational definition a legal absurdity, but the citizenship element would theoretically tag Ukrainians fighting in Sierra Leone as mercenaries while excluding Americans fighting in Iraq. David Shearer, former Senior Advisor to the United Nations Department of Humanitarian Affairs in Liberia and Rwanda, describes the widely accepted 1977 definition as "so riddled with loopholes that few international law scholars believe it could withstand the rigors of the courtroom." He also notes a "palpable international apathy" illustrated by the refusal of the United States and France to sign on to the 1977 document.
Occasionally, contractors have been granted POW status anyway. In 2003, the Revolutionary Armed Forces of Columbia (FARC) designated three American military contractor hostages as POWs. However, the United States government still designated the contractors as kidnapees. Semantic issues arise from the classification of PMCs as either "civilians accompanying armed forces" or "civilians taking part in hostilities." According to the Geneva Centre for the Democratic Control of Armed Forces, the former would appear entitled to POW status while the latter would not. In the modern era of warfare, where the lines between combat and support are blurred, this is tremendously problematic.
When PMCs misbehave, there is no international oversight structure. Theoretically, PMCs committing great atrocities could be liable in the International Criminal Court (ICC.) However, the ICC only has jurisdiction over individuals rather than corporations. Consequently, PMFs would face no sanction for abuses by the individual PMCs in their employ. America’s opposition to the ICC would also limit the Court’s usefulness given the large number of Americans acting as PMCs. Other major sources of PMC manpower have been similarly hesitant. Russia, for example, has only signed, not ratified, their membership in the ICC.
The most recent effort to regulate PMCs through the United Nations was the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries. Similar to previous models, it retains the motivational aspect in its definitions and defines mercenarism as an offense. Although the 1989 Convention proposes that states communicate arrests of mercenaries and subsequent legal proceedings to the Secretary General, the states themselves retain full ownership over the process. There is no proposal for creation of enforcement mechanisms beyond existing state actors. This toothless framework had been ratified by a grand total of two Western European states, along with less than thirty impoverished and unstable regimes across Africa, Central Asia, and Africa.
International law has proven an inadequate mechanism for governing PMC and PMF behavior. Despite the lofty aspirations of the last fifty years, the lack of independent enforcement capabilities for international law has left de facto regulation to lower levels. As weak as legislation on "mercenaries" has been, it has proven even more difficult to translate such laws to the corporate-model PMF. P.W. Singer notes that no international laws actually cover the firms themselves. Lacking Western buy-in (the "supply side," so to speak), capable enforcement, and jurisdiction over corporations, international law has been an ineffectual framework for regulating the rights and behaviors of PMCs and PMFs.
Regional law
For the most part, African states have been on the receiving end of private military activity. (White South Africa being the notable exception.) Because of this unpleasant history, coupled with the clear inadequacy of international law, African governments have tried to regulate the profession on a regional level.
The central text in regional law is the Organization of African Unity’s Convention for the Elimination of Mercenarism in Africa (OAU / CEMA.) The CEMA was a product of its historical moment. In 1976, a group of mercenaries were captured, tried, and punished (including executions) in Angola. The Angolan government convened an expert panel of lawyers, including a number of internationals, to draft legislation countering mercenarism (The Luanda Convention.) They arrived at a document packed with charged language about racist neo-colonial domination. Interestingly, the experts managed to define the crime of "mercenarism" without defining the "mercenary." Although this document carried little weight on its own, the Luanda Convention was an important precedent for the CEMA, which followed shortly thereafter.
The CEMA was produced in 1977, and entered into force in 1985. It suffers from most of the same problems as international law, including ambiguity of definitions and poor enforceability. It borrows the 1977 UN definition of the mercenary, retaining the awkward motivational element. Also, having not been updated since its inception, the CEMA retains wording condemning "colonial and racist domination [against] independence and freedom."
Interestingly, the CEMA states that an "individual, group or association, representative of a State, or the State itself" can commit the crime of mercenarism. This leaves the door open, however unlikely, for states to charge other state actors. Even more uniquely, CEMA reads: "Any person, natural or juridical, who commits the crime of mercenarism as defined in paragraph 1 of this Article...shall be punished as such" (My italics.) This wording does not exist elsewhere in international law. Theoretically, such language would allow the modern corporate "person" (such as the PMF) to be held accountable for the crime of mercenarism.
Unfortunately, the CEMA is over reliant on state enforcement. Resource-poor African states have not created an independent court or other monitoring mechanism. The CEMA suggests, under the heading of "penalties," that states should treat mercenarism with "the severest penalties," including capital punishment. However, it is at best a suggestion. The regional law in theory is no better than state law in practice.
There are a number of similarities between the UN legal documents and the CEMA, including the mutual use of poor definitions and lack of enforcement mechanisms. Enrique Ballesteros, the United Nations Special Rapporteur on the Question of the Use of mercenaries, has suggested that the 1977 UN and OAU documents "lend [themselves] to...possibly conflicting interpretations." Like the UN documents, the CEMA suggests that mercenarism is the crime itself, irrespective of any particular criminal acts done by the mercenaries. Given the centrality of PMFs to contemporary warfare, let alone their public relations machines, it is unlikely that African Union legal frameworks would lead to the dissolution of any modern, corporate-model PMFs—particularly given the hostile, uniquely normative language of the CEMA.
State law
State law has thus far proven the most effective mechanism for regulating PMFs. Although it lacks the normative power of international or even regional legislation, it can potentially serve as a precedent on at least a state-by-state basis. More importantly, it has actually worked in the past.
The most comprehensive efforts at regulating private militaries at the state level have come out of South Africa. This is no coincidence. The country provides thousands of PMCs serving abroad, from West Africa to Iraq. It was also home to Executive Outcomes (EO,) that was once labeled as "[arguably] the most deadly and efficient army in sub-Saharan Africa."
With thousands of ex-apartheid military officers running around worldwide, the government clamped down on private military activity. Their primary mode of attack was the 1998 Regulation of Foreign Military Assistance Act (RFMAA.) The government’s definition of "military assistance" was broad, including non-combat roles such as "advice or training...financial, logistical, intelligence or operational support... [and] procurement of equipment. "Mercenary activities" were separated, defined by "direct participation as a combatant...for private gain," and explicitly banned.
Excepting mercenarism, this is not a blanket ban on contract work. Essentially, the RFMAA is a regulatory framework. Foreign military assistance is allowed so long as a Parliamentary committee has authorized it. In practice, this means that PMFs exist at the will of the regime. Unlike all international and regional law, this has had direct and strikingly large-scale policy results: Executive Outcomes, founded in 1989, went out of business immediately following passage of the bill. The RFMAA gives the government significant leverage over the activities of PMFs.
South Africa is still working to crack down on its citizens acting as PMCs for companies registered elsewhere. This has proven harder to enforce, as evidenced by the thousand some-odd South Africans in Iraq. While the law theoretically applies to them, enforcement has suffered. Recently, harsher legislation has been proposed. The verbose "Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Combat Bill" would toughen laws on South African participation in conflict zones. Advocates of the bill argue that such legislation would close loopholes allowing South Africans to work abroad for non-South African firms. Critics call it an overreach, and claim that it could potentially even prevent charities from rendering humanitarian assistance. As of April 2007, the bill has passed the legislature and awaits the signature of the President.
If it goes through, implementation may still suffer. Because it lacks the scope of international (or even regional) law, opt-outs are available. Currently, as many as 900 South Africans serve in the British military. Their activities would become illegal upon passage of the bill. Some of these soldiers claim that the British government has offered them citizenship should this occur, and while the Ministry of Defence denies making such an offer; they are currently "looking at a range of options." In theory, South Africans working for foreign-based PMFs could similarly be offered citizenship in the PMF’s home country to avoid these laws.
This problem of managing PMCs in the field is currently being tested in Iraq as well. In situations where PMCs support uniformed military of their home state, oversight should theoretically be easier if only because of access. An American law passed in 2000 was supposed to hold contractors responsible for crimes committed in war zones. The Military Extraterritorial Jurisdiction Act, however, only applies for crimes that carry a sentence of over a year, and only affects PMCs working with the Department of Defense (DoD). Michael Nardotti Jr., former Army judge advocate general, notes that simple assault only carries a six-month sentence. "Suppose the behavior involves humiliating the detainee, or stripping him naked. What crime would that constitute? You’d have to look at the whole list of federal offenses and find one that is punishable by more than one year." Worse yet, PMCs contracted to the Central Intelligence Agency (or any other agency besides the DoD) remain entirely exempt.
As with international and regional law, jurisdiction remains a tremendous problem. Judges have thrown out several cases on jurisdictional grounds, including a $10 million verdict against Custer Battles. When the families of Halliburton truck drivers sued for recklessly sending convoys into battle, a federal court ruled that the army, not Halliburton, was in charge. As a result, trying the case would represent "an impermissible intrusion into powers expressly granted to the executive by the Constitution." In short: PMCs are exempt from punishment because the army code of justice has no jurisdiction over them; PMFs are exempt from punishment because the army has jurisdiction over them. Somewhere, Joseph Heller is weeping.
States can have teeth when they want to, as the South African shutdown of EO illustrates. Interestingly, Sandline International may have failed for similar state policy reasons. Sandline had been through a number of scandals, including a British investigation that found the company to have violated an international arms embargo on Sierra Leone in 1998. (A messy affair that also implicated Foreign Office officials.) When Sandline shut down shop, albeit six years later, their website hosted the following message: "On 16 April 2004 Sandline International announced the closure of the company's operations. The general lack of governmental support for Private Military Companies...is the reason for this decision. Without such support the ability of Sandline to make a positive difference in countries where there is widespread brutality and genocidal behaviour is materially diminished." States have shown an ability to take on PMFs using their own powers despite the lack of adequate mechanisms or precedent from regional and international law.
In terms of PMCs, one possible option is to simply stick them into the military. The United States has recently, quietly, placed contractors under the same laws applicable to uniformed soldiers. Senator Lindsey Graham (R-SC) added five words in the 2007 defense appropriations bill which overnight subjected certain civilians to the Uniform Code of Military Justice (UCMJ). The arrangement was sharply criticized by PMFs, as well as representatives of the American Civil Liberties Union who objected to the use of military law to govern civilians.
Previously, the United States government could have applied the UCMJ to civilians in a war zone during a war declared by Congress. However, the formal declaration of war required for this has not occurred for almost 70 years—not Korea, not Vietnam, not Haiti, not Somalia, not Yugoslavia, not Iraq, not the global war on terror. The odds are good that future wars will follow this pattern. The changes to the law, however, replaced the word "war" with "declared war or a contingency operation." PMCs, previously in legal nowhereland without a formal declaration of war, would now be subject to the UMCJ in "contingency operations" such as Iraq. In the words of P.W. Singer, "contractors’ ‘get out of jail free’ cards may have been torn to shreds." How this will play out in practice is still unknown. At least it represents recognition, however late, of the fact that PMCs have been running around unsupervised for too long.
Conclusion: What works?
The private military business is poorly regulated. Although a number of legal frameworks exist, most are vague, contradictory, unpopular, unenforceable, or some splendid combination of the above. Strong legal mechanisms are required to govern the behavior of PMFs and PMCs, including, when necessary, the ability to prosecute individuals and companies. Otherwise, the martial playground described by Brigadier General Horst will continue, with particularly appalling consequences in Africa.
Attempts to govern private contractors through international law have fallen flat for want of enthusiasm. This is due in large part to the disconnect between the West and Africa in understanding the problem. To many African states, the mere existence of PMFs represents a form of neo-colonialism, to be stamped out as a practice. To Europeans and Americans, PMFs are an increasingly integral part of the modern military, which need only be checked when contractors commit particularly offensive crimes. Without the buy-in of the world’s most powerful states, Africans cannot build substantive international law to control PMF activity.
Although African states have tried regional arrangements, enforcement suffers. Simply put, the continent is too big and too poor. The 1977 mercenary convention has not even been updated in the last thirty years. Even when African states have the political will to take action, they lack the capacity to enforce regulatory mechanisms on largely Western-based firms.
State-based legal oversight is the only solution proven even partially effective. By outlawing certain practices and controlling licensing, states have been able to hold their own citizens accountable at home. (Thus far, there has been little success holding individuals accountable abroad under any frameworks.) Continued development of the state-based solution, despite its weaknesses, appears significantly more realistic in the foreseeable future than a unified, international standard on PMF behavior. By treating contractors as liable to standard military law, states may be able to further enforce proper behavior among PMCs. Reviewing the evidence of the past decades, only state-level legal regimes have proven even marginally capable of restraining the actions of PMCs and PMFs.
Do not bet on the contractors from Abu Ghraib ever facing justice. History has given no indication of the possibility. Not unlike terrorism, the growth of private military activity quickly outpaced the construction of germane legal regimes. Despite the pessimistic past, there is some hope. Strong actions by state governments have, on occasion, scored successes in regulating the industry. Hopefully, these events will serve as precedents for improved state-based solutions to the long-time legal vacuum on contractors.