“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.
The occupation of Iraq has been an unqualified success for at least one sector of the economy. Private military firms (PMFs) handle a larger load of both supply and combat operations than ever before. Thousands of private military contractors (PMCs) are running around the country, from former Special Forces guys making $1,000 a day to third-world nationals delivering cheesecakes protected by National Guardsmen.
In the last decade, the Pentagon has alone has entered into over 3,000 contracts with PMFs. This does not include the operations of other agencies such as the CIA. P.W. Singer, the expert’s expert on this topic, attributes the rise in PMF activity to three factors: the end of the Cold War; transformations in warfare; and a general trend towards privatization of government tasks. With the fall of the USSR, standing armies worldwide were downsized and demand arose for smaller, non-permanent military forces. Simultaneously, the market was flooded with well-trained soldiers from the ranks of both the Red Army and the concurrently defunct apartheid South Africa. Also, warfare in the developed world was becoming increasingly reliant on off-the-shelf commercial technology, much of which was operated by representatives of private firms. Finally, PMFs benefited from the general neoliberal trend of devolving state responsibilities to the private sector – if Ohio can have private prisons, why not Baghdad?
There are over 100,000 PMCs in Iraq, not even counting subcontractors. Approximately 20,000 have taken part in combat operations, representing more than 60 firms. This made PMFs the second-largest participant in the Coalition of the Willing. We’re talking about $100 billion worth of contracts. The U.S. government has paid salaries for some 1,500 South Africans, most of who are former members of the South African Defense Forces (SADF), because apartheid means never having to say you’re sorry.
So what happens when, as Brig. Gen. Horst put it, they “do stupid stuff?” How should the individuals and their employers be held accountable? Neither national nor international law has proved capable of regulating the behavior of private contractors. There are a number of toothless international treaties on mercenarism, and I’ll probably post an old paper on this some time when I’m too lazy to do new material. For now, a summary of legal oversight mechanisms for PMFs and PMCs:
–International law says much and does little. The United Nations has passed a series of resolutions condemning “mercenarism,” but none of the major powers have ratified any enforcement mechanisms. Without the creation of any standalone institutions, implementation of these guidelines is left to individual states. David Shearer, former Senior Advisor to the U.N. Department of Humanitarian Affairs in Liberia and Rwanda, notes a “palpable international apathy” to implementing serious international regulations on PMFs and PMCs. Even if individual PMCs commit crimes great enough to be liable under something like the International Criminal Court, the ICC’s jurisdiction does not cover their corporate employers – the ones whose CEOs are responsible for setting the often-reckless rules of engagement. As weak as regulation of the PMC’s themselves has been, it has proved even more difficult to apply oversight to the modern, corporate-model PMF. No international law actually governs the firms themselves. At current, international law is useless.
-National law (state law) is occasionally effective. This tends to work best on the supply side. South Africa is not only a major source of personnel, but used to be home to Executive Outcomes (EO). EO, once “[arguably] the most deadly and efficient army in sub-Saharan Africa,” went out of business immediately following the passage of the Regulation of Foreign Military Assistance Act (RFMAA). The RFMAA increased the government’s licensing and control power over PMFs, while enacting a blanket ban on “mercenary activities” as defined by “direct participation as a combatant…for private gain.” PMFs providing non-combat services, up to and including training, intelligence, and operational support, are allowed to exist subject to Parliamentary authorization. The government is working to expand their efforts, with subsequent prohibitions aimed at reducing the presence of former apartheid Special Forces running around in conflict zones.
Problem is, South Africans can still be PMCs; they just have to work for companies not based in South Africa. This gets to the general jurisdictional problem underpinning all the legal loopholes. What happens when a South African working for British company paid by the United States government kills a civilian in Iraq?
Unfortunately, there is no answer. Even Americans working for American companies under American contracts have been exempt from legal repercussions. “Small” crimes are nearly impossible to prosecute. The Military Extraterritorial Jurisdiction Act (MEJA), passed in 2000, only applies for crimes that carry a sentence of over a year. Michael Nardotti Jr., former Army judge advocate general, explains 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, the MEJA only applies to Department of Defense employees. Contractors from State, the CIA, or any other agencies are entirely exempt.
The simplest solution would be to fold PMCs into military law. They weren’t through 2007, even as PMCs fought literally next to uniformed soldiers. In 2007, 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. Thus far, it has had little impact on oversight.
Jurisdictional problems also remain prohibitive, particularly in cases against the PMFs. 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 other words, PMFs got off because the army had jurisdiction; while PMCs also got off because the army did not have jurisdiction. Somewhere, Joseph Heller is throwing up.
Hopefully, the Status of Forces Agreement will straighten some of this out. It is still not clear how Iraqi demands for PMC accountability will work in reality. PMCs could end up being tried in Iraqi courts. If nothing else, the political pressure around this may push the U.S. to try its own people, especially if PMFs demand American juries for American citizens. Until today, the only repercussions for PMCs who commit crimes have been reassignment or firings by their PMF bosses; hardly a terrible outcome for perpetrators of child prostitution rings among others. Although the Pentagon found that “several of the alleged perpetrators” of detainee abuse at Abu Ghraib were private contractors, none have faced criminal charges. (Though this may change yet.) The President of the International Peace Operations Association (IPOA), the professional organization of PMFs, responded to the Abu Ghraib case with “What happens is the people are fired…that’s what you have to do in this environment.” Or, what happens overseas stays there.
So given this context, a stunning recent development: The Department of Justice (DoJ) is preparing to charge three to six Blackwater guards for the deaths of 17 civilians in Iraq in September 2007. All the usual caveats apply:
-Can they be charged for crimes committed overseas?
-Since Blackwater works for State, not DoD, do the legal regulations apply to them?
-State reportedly gave them promises of immunity for statements following the shootings, and prosecutors may be barred from using this information.
-Blackwater itself is not a subject of the investigation.
And the best part: They’re not being tried for murder. Prosecutors lost the closest thing yet to a similar case, a failed first-degree manslaughter charge. Proving murder in a war zone is understandably a bitch. So the weird, weird alternative:
“Charges could be announced as early as Monday in the shooting, which left 17 civilians dead and strained U.S. relations with the fledgling Iraqi government. People familiar with the charges said they may include an aggressive Reagan-era anti-drug law cracking down on assault weapons…
…Though drugs were not involved in the Blackwater shooting, the Justice Department is pondering the use of a law, passed at the height of the nation’s crack epidemic, to prosecute the guards. The Anti-Drug Abuse Act of 1988 law calls for 30-year prison terms for using machine guns to commit violent crimes of any kind, whether drug-related or not.”
The law office intern who dug that one up just won a job offer. This should be somewhat easier to prove than a manslaughter charge. This isn’t terribly encouraging from a structural perspective; it’s hardly a useful precedent, let alone a generalizable legal framework. That said, more power to them for trying something. Private contractors have enjoyed de facto immunity for years. If it takes Reaganite drug law to get a leash on them, so be it.