UPDATE: In January 2008, Human Rights First released a report on Private Security Contractors at War: Ending the Culture of Impunity. The Business & Human Rights Resource Centre has compiled responses from seven companies, including Blackwater and KBR.
Blackwater USA (now Blackwater Worldwide) has been in hot water ever since company employees killed 17 Iraqi civilians in Baghdad's Nisour Square on September 16, 2007. The New York Times reported this week that federal investigators consider 14 of the shootings unjustified and in violation of the rules for security contractors in Iraq, according to officials briefed on the case. In a further development, State Department Inspector General Howard Krongard has recused himself from investigations related to Blackwater because his brother is on Blackwater's advisory board. Blackwater provides security for State Department officials in Iraq.
The Nisour Square deaths have provoked outrage at what appears to be a "shoot first, ask questions later" attitude among security contractors. On a deeper level, this incident is emblematic of a trend toward privatization of international security, with significant legal and moral ramifications. If you think the age of mercenaries is over, think again. The idea of "guns for hire" is still very much alive and thriving in some of the world's most democratic states. Western governments increasingly delegate some of their most closely guarded prerogatives to private actors: commercial firms dealing not in military goods, but in security services.
Since the 1990s there has been a striking rise of private military firms, or PMFs. PMF services range from combat operations in Africa to guarding the U.S. ambassador in Iraq. Their ascension is generally ascribed to three factors: the end of the Cold War, which brought with it a downsizing of armies throughout the world and thus a surplus of soldiers; the resurgence of asymmetrical conflicts, where rich states are reluctant to intervene with their own troops in the wake of American deaths in Somalia; and an ideological trend toward the privatization of government functions.
Though the precise number of PMFs operating in conflict zones is unknown, some facts speak for themselves. From 1994–2002, the U.S. Department of Defense, one of the industry's prime clients, spent more than $300 billion on contracts with security firms, and by 2010 the annual worldwide revenue of the industry is expected to exceed $200 billion. PMFs constitute the second-largest military contingent in Iraq, surpassing even the British contribution. The United States has spent more on one contract with Halliburton's Kellogg, Brown & Root than it did on the entire 1991 Persian Gulf War, prompting some to dub the coalition of the willing the coalition of the billing.
What are the legal constraints that bind PMFs and which authorities can hold them responsible in cases of malfeasance? The hazardous nature of their work calls for strict regulation and supervision, yet their employees tread a legal no man's land outside the military chain of command and generally beyond the reach of national civilian authorities. (The United States, United Kingdom, South Africa, and Australia are home to a majority of PMFs.) As a result, they often cannot be court-martialed or tried in their home country except for crimes perpetrated on its soil. Theoretically, PMF employees can be called before the courts of the countries in which they operate, but PMFs "typically operate in failed states; indeed, the absence of local authority usually explains their presence in the first place," writes P. W. Singer in Foreign Affairs.
The short arm of the law in weak and failed states is a contributing factor to the legal limbo in which hired guns find themselves. Politicians can also intervene and strengthen their immunity. In a highly controversial decision shortly before leaving his post as U.S. administrator in Iraq, L. Paul Bremer III signed Coalition Provisional Authority Order 17, declaring that "[c]ontractors shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contracts," thus making them "immune from the Iraqi legal process. "
The ethical ramifications of this decision are significant. The U.S. Army subsequently found that more than one third of the cases of prisoner abuse at Abu Ghraib were perpetrated by employees of two PMFs, Titan Corp. (now L-3 Titan Group) and CACI International Inc. While the trials of the U.S. soldiers who were involved attracted a great deal of attention, none of the private contractors has been indicted, although a federal judge this week allowed a lawsuit on the torture case to proceed against CACI.
PMFs frequently operate away from the media spotlight and therefore only come to the public's attention when accusations are leveled against them. Blackwater has attracted attention due to repeated allegations of misconduct in Iraq, the most prominent case being Nisour Square. The Iraqi government reacted by revoking Blackwater's operating license. Blackwater has since softened its image and logo on its website.
It must be pointed out, however, that PMFs fulfill essential duties in Iraq, protecting diplomats and assisting U.S. troops as they attempt to pacify the country. Nonetheless, the Army Times reports that the State Department may not renew its Blackwater contract following a conduct review.
Better regulations and more transparency and coherence are called for in the private security industry and the laws that govern it. The U.S. Uniform Code of Military Justice this year was amended to allow the prosecution of "persons accompanying an armed force in the field" during a "contingency operation." Late last month, the Iraqi cabinet approved a bill to lift contractors' immunity.
When the traditional tasks of national militaries are delegated to private military firms, civil authorities enter into two contracts with them: commercial and moral. If leaders aren't adamant about enforcing both, the results are potentially destabilizing. Contractors must be expected to behave as extensions of the militaries they are hired to complement.
As French president Georges Clemenceau once remarked, "War is too important to be left to the generals." It's no better in the hands of mercenaries.
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