Legality Governing PMFs

Legality Governing PMFs

Legal reforms to deal with mercenaries in recent times began in the 1960s as a result of the ‘spectacular’ re-emergence of mercenaries in Africa following the decolonisation of many African countries, particularly the Congo (Percy, 2007, p. 167). African countries were the main proponents pushing for the creation of international law to outlaw the hiring of mercenaries (Percy, 2007, p. 169). This raises the question of whether other countries had an objection to mercenaries and whether mercenaries should be illegal if most countries do not have any serious objections to their use. It is not possible to answer these questions thoroughly because it is outside the scope of this dissertation, which is focused on why the use of PMFs in Iraq has been so problematic. However, it is worth considering where these laws and norms have come from because they affect PMFs in Iraq today due to the feelings Iraqis have about mercenaries. The lack of laws governing PMFs also has a direct affect on the local Iraqi population who, for example, can be harassed on their roads by PMF convoys; that is, by people who can do as they please because they have no fear of being arrested or charged because they are beyond the reach of the law.

If states no longer object to losing their monopoly on the legitimate use of force and are prepared to tolerate and even hire PMFs then it is possible that the anti-mercenary norm will dissolve. This could lead to changes in international law that group mercenaries and PMFs together. The main factors to be considered would be whether PMFs are different from their mercenary predecessors and what methods would be effective in regulating them and holding them accountable for any crimes they commit. Evidence for this change in attitude and norms comes from Sarah Percy’s book Mercenaries in which she argues that the countries pushing recent international laws governing mercenaries such as Article 47 of Protocol I of the Geneva Conventions are limited to African countries (Percy, 2007, p. 169). Furthermore, International lawyer Antonio Cassese argues that the law was intentionally left full of loopholes by states who did not necessarily agree that mercenaries were a bad thing and in actual fact pursued the creation of this law to protect themselves from mercenary attacks while retaining the right to use mercenaries themselves (Percy, 2007, p. 169). However, if you still retain the right to use mercenaries, it is doubtful how much protection you have from them in the first place. There were also other inconsistencies with the international laws governing mercenaries. One of the major inconsistencies was the way that a mercenary was defined. While developing Article 47 the Working Group responsible for its creation defined a mercenary as a person ‘who is motivated to fight essentially or primarily by the desire for...“hard cash”’ (Percy, 2007, p. 177). The introduction of motivation into the Article ran counter to the rest of the Protocol which aimed to protect all combatants from a humanitarian point of view and not discriminate on the basis of motivations (Percy, 2007, p. 178). It was also accepted that trying to prove someone’s motivations would be inherently difficult if not impossible (Percy, 2007, 177). Other clauses such as allowing states to integrate foreign individuals into their national armies has further weakened this attempt at outlawing mercenaries which, contrary to common belief, has resulted in there being no total ban on mercenaries in international law (Singer, 2004, p. 531).

            The failure of international law to properly categorise and regulate mercenaries has flowed directly into the legal limbo in which PMFs have been operating since their emergence in the early to mid 1990s. Early attempts to address this, such as the UN passing the Mercenary Convention in 1989 have largely failed for similar reasons to the flaws in Article 47. The mercenary image has still maintained its negative connotations, which lead firms like Executive Outcomes and Sandline International to distance themselves from this ‘gun for hire’ image of mercenaries. Instead they try to convey themselves as legitimate businesses offering practical solutions to legitimate governments and entities. This has only been moderately successful. Episodes such as the 1997 arrest of Sandline’s Tim Spicer in Papua New Guinea and more recently the arrest of Simon Mann, the former SAS Officer who was involved in a plot to overthrow the government of Equatorial Guinea has led to questioning whether these ‘new’ PMFs are really any different from their mercenary predecessors.

            It could be argued that we are now in our third stage of mercenaries in recent history. The first stage consisted of the mercenaries who roamed Africa in the 1960s offering to work for whoever would pay them the most and included individuals such as Bob Denard, the inspiration for Frederick Forsyth’s 1974 novel, The Dogs of War. The second stage was relatively brief and occurred between the early 1990s and the early 2000s, with the closure of first Executive Outcomes and then Sandline International. The rise of companies such as Blackwater and the boom in PMF services as a result of the wars in Iraq and Afghanistan represent this new third stage. This new stage has brought significantly more attention and examination of the laws governing mercenaries and PMFs than seen in the previous stages. This is due to a number of reasons. PMFs are operating for Western governments, principally the United States and so it is not surprising that there is now worldwide attention on the fact that this industry is completely unregulated at the international level, it involves billions of dollars, has caused changes to the course of the war in Iraq, is heavily depended on by the U.S. government in its operations around the world, and has, in Iraq, operated above the law.

            One answer to the problems of governing PMFs through international law would be to try and regulate them at a national level. Singer defines three fundamental problems with this approach that undermine any effective legal regulation of PMFs (Singer, 2004, p. 534). Firstly, PMFs are service-oriented businesses that operate at a global level with only a small infrastructure that gives them the ability to relocate to a friendlier environment should one state start to put pressure on them. An example of this is Executive Outcomes who were based in South Africa when the anti-mercenary law was passed and who closed the business in South Africa and moved to other countries under other names such as Lifeguard or Saracen (Sourcewatch, undated, p. 1). Thus the result is largely to drive PMFs underground and away from public scrutiny. Secondly, problems arise with the issue of enforcement due to the fact that these companies are usually operating in failed states or conflict zones where local authorities lack the power to control these companies. This has been particularly evident in Iraq with companies such as Blackwater who despite their numerous scandals and the threats of the government to withdraw their licence are still operating largely unhindered. Thus enforcement must be extraterritorial which raises other problems such as should the PMFs be subject to military or civilian law? Or how do you deal with the problem of gathering evidence and bringing witnesses back to the home country should a crime need to be prosecuted? Other tactics such as establishing subsidiaries registered in other countries can make the matter even more problematic and the ‘fog of war’ can also cloud issues and make enforcement near impossible when dealing with legal issues in a war zone. Thirdly, domestic laws often fall well short of what is required to govern the PMF industry. For example, in the U.S. the Neutrality Act prohibits the recruitment of mercenaries within the U.S. but not the sale of military services. Similarly, until recently the Uniform Code of Military Justice (UCMJ) only covered the military but not any civilians accompanying the soldiers overseas. The result has been that contractors to PMFs are only beholden to local laws which are usually unable to be enforced, or the PMF can simply remove the individual from the country before they can be arrested. In Iraq this went one step further with Paul Bremer issuing the now infamous Order 17 which gave all contractors immunity from Iraqi law and has been a major reason for the failings of PMFs, because they were able to operate as they pleased without fear of any kind of reprisal.

            The last five years of war in Iraq and the corresponding rise in the use of PMFs has led to a number of changes to the way that the U.S. seeks to govern their employment of PMFs in Iraq. The lawless beginnings under Bremer that led to the contractors being despised by the local Iraqis for their unaccountability (Fainaru, 2007, p.1), followed by the abuses at Abu Ghraib of Iraqi prisoners by contractors from the firms CACI and Titan (Dishneau, 2008, p.1) has led the U.S. to make some progress with changes to the UCMJ. The changes, which came into force at the start of 2007 have broadened the Code to cover contractors and others who accompany the military on operations. Thus the contractors in Iraq should now be under the same set of military laws that govern the armed forces (Singer, 2007a, p.1). Singer makes a number of points about the change to this law. This change to the UCMJ represents the biggest step to bring PMFs under control since the start of the Iraq War in 2003. It now allows military officers to prosecute contractors for crimes. It represents a big step forward from the Military Extra-Territorial Jurisdiction Act (MEJA) that had been previously held up as the answer to regulating contractors but was in fact full of legal holes and ineffective. The law also highlights the fact that Congress has now become aware of the problems caused in Iraq by having armed contractors not bound by any laws or regulations. The U.S. military might now start questioning the role that contractors are playing and asking whether some of their roles should be only for the uniformed military. This could lead to a roll-back in contractor roles and responsibilities.

            The real evidence of progress will come when contractors are actually charged under these laws. There has been virtually no prosecutions of contractors since the 2003 invasion. The first was of an Iraqi-Canadian contractor who was working with the U.S. military as an interpreter, who was court-martialled for stabbing a colleague at an outpost near Hilt, about ninety miles outside of Baghdad (Zavis, 2008, p. 1).  Other prosecutions are also possible in the near future with the Department of Justice investigating the Christmas 2006 killing of a guard to the Iraqi Vice-President by a Blackwater contractor. Currently investigations are still being conducted by the F.B.I. however it could be used as a test case if issues of jurisdiction can be cleared by the courts (Associated Press, 2008, p.1). Another law that has recently been approved by the U.S. House of Representatives aims to give greater disclosure to Congress about the financials of companies involved in the PMF industry. Recently when Representative Christopher Murphy tried to question Blackwater’s CEO Erik Prince about his company’s profits Prince refused to answer the questions because his company is privately held. The new law means that companies would have to disclose this information if they are receiving more than eighty percent of their income from the U.S. government or if they receive more than twenty five million dollars in government contracts in any fiscal year (Wittenberg, 2008, p.1). These new laws go some way towards redressing the imbalance under which contractors and PMFs have operated for the last five years in Iraq.