Published on Wednesday, October 14, 2009 by Jurist

Closing the Loophole: Private Military Contractors and Rights Violations

by Margaret Maffai

The American public and—to some extent—lawmakers snapped to belated attention in September of 2007 when a small force of private military contractors opened fire on a busy Baghdad traffic square, killing at least 14 civilians and wounding 20 more. A year later, the US Justice Department dutifully brought charges against the six shooters; Blackwater changed its name to Xe Services; and founder Erik Prince resigned amid some truly bizarre accusations including the murder of a whistleblower, a crusade to wipe out Muslims, arms smuggling, and a secret contract with the CIA to assassinate Al-Qaeda leaders. So that’s it, right? Renegade mercenaries brought to justice, the poster child for shadowy military corporations is no more, and the square-jawed, ex-Navy SEAL quietly ducked out of the CEO seat. Justice served. Problem solved.

Not exactly. Though most lawmakers and American citizens recognize, at least on a rational level, that Blackwater is not the beginning and end of the problem of private military and security companies (PMSCs), the indictment of the six gunmen implicated in the Nisour Square shooting seemed to bring a collective sigh of relief…and subsequent legislative stagnation. In truth, contractors are not unique to the Iraq War. They are not unique to the United States. They are not even unique to this century. Rather, PMSCs, operate in every corner of the globe, performing every conceivable support function from food service to infrastructure construction, to building security, to human resources management, to policing, interrogation, and intelligence. States have gradually surrendered their abilities to self-sufficiently perform their responsibilities in the areas of national defense and security in favor of employing private forces. Yet the international community and the individual national governments that employ contractors seem content to ignore this growing threat to human rights and state sovereignty, or at least pretend the threat has abated.

This find-sand-insert-head mentality denies the reality that PMSCs are so thoroughly intertwined with essential government functions the world over that even the most basic security, humanitarian, and infrastructure-building activities would be unsustainable without their support. Private companies, including one implicated in sex-trafficking in Bosnia in 2000, are still actively engaged in training Iraqi police forces and operating Iraqi prisons. South American countries including Chile and Columbia augment regular police forces with private security employees armed both literally (with deadly weapons) and figuratively (with the right to use force against citizens). Prison systems in the U.K., the U.S., and Australia have shifted over the past three decades to privately-run prisons which have been accused by human rights groups of providing insufficient protections for prisoners’ basic health, safety, and civil rights. Conflict between environmental protestors and private guards hired to secure business interests such as oil pipelines in Asia, Africa, and South America have resulted in violence. Though Blackwater made a convincing and convenient symbolic foe for the American justice system, which came late to the game and seems to have left early, it is hardly the be-all and end-all of corporate powers engaged in activities that threaten human rights and the State monopoly on the use of force.

To attempt to resolve the legal problems inherent in surrendering the State monopoly on the use of force to private companies with the indictment of six young men is to attempt to banish the Staten Island landfill with a few puffs of Febreze. Individual accountability is admirable and necessary, but it is no substitute for criminal and civil liability for corporate decision makers for and companies themselves. Moreover, providing criminal consequences solely for individual employees ignores the fact that many employees are, themselves, the victims of human rights violations such as fraudulent hiring practices, human trafficking, false imprisonment, and forced labor.

Even those measures aimed at prosecuting individuals for human rights violations have proven scattershot at best. The Military Extraterritorial Jurisdiction Act (MEJA), which grants federal jurisdiction over civilians charged with certain felony criminal acts committed abroad, has resulted in only a handful of prosecutions. MEJA applies only to contractors “supporting the mission of the Department of Defense overseas,” and therefore does not clearly extend to State Department contractors such as Blackwater. Similarly, a 2006 Department of Defense rule that makes DOD contractors subject to prosecution in military courts martial fails to reach State Department contractors such as Blackwater. Moreover, Reid v. Covert, a 1954 case, held that it is unconstitutional to prosecute American civilians in military courts martial. The case has not been overturned and the constitutionality of the new DOD rule has yet to be tested.

The only reasonable approach to regulating transnational corporations integrated at every level of state, local, and national government is an international commitment to devising comprehensive legislation that provides for criminal and civil accountability for individuals and corporate entities complicit in human rights violations. Most importantly, lawmakers should place clear limitations on the activities in which contractors may engage. There are some activities that are simply not appropriate for outsourcing. Elected representatives, not military commanders, must make rational, responsible decisions based on solid fact-finding about where to draw that line. Key government functions such as interrogation of prisoners, intelligence gathering and counterintelligence operations, and armed interaction with civilians in a foreign battle space are currently performed by private employees. Those with the power to guide corporate and governmental accountability need to consciously decide whether this is acceptable (it isn’t) and firmly impose boundaries on the private performance of inherently governmental functions.

The international community will have the opportunity to take on these definitional challenges within the next several years. The United Nations 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—in consultation with researchers, watchdog groups, industry representatives, and other civil society groups—has issued a Draft International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies. The Working Group will be approaching states in 2010 in a collaborative process to produce the official draft of the convention, which will be presented to the U.N. Human Rights Council for its consideration in September 2010. Although engaging with other countries in a common effort to address a common challenge represents a necessary commitment to ensuring that the rule of law follows corporations wherever they operate, I would ask that the United States go one step farther.

As a source country for many of the PMSCs operating in conflict areas and in the developing world, I would ask U.S. lawmakers to ensure that even while the legal status of paid soldiers is debated on the international stage, no U.S. corporation, and no U.S. employee will escape prosecution for human rights violations. Draft a comprehensive piece of legislation that spells out decisively what activities are permissible for outsourcing to private companies and reserves to the State—and to the State alone—the legitimate use of force. Kick up investigations into corruption, waste, and fraud in contract bidding and performance. Require companies that wish to bid on government contracts to enforce policies and procedures that ensure compliance with international human rights law and the law of armed conflict and train employees to respect local cultural and religious norms. Increase economic sanctions and exposure to civil liability for corporations that fail to comply with these minimum standards. As we increase our military and private military presence in Afghanistan, ostensibly to combat terrorism and restore the rule of law, we owe it to our national integrity to ensure that every representative of American force abroad operates within the reach of justice.