Legality Issues

There are major problems with the legality of private companies and how they operate in
countries where they are deployed. One example pertains to Iraq in 2004 when Blackwater
employees entered into the city of Fallujah and “under the pretense of looking for terrorists,
[they] had carried out nighttime raids, mistreated women and children, and tortured and
murdered local men and teenage boys.” [4] Due to this, the local Iraqis took the law into their
own hands and killed the Blackwater employees. However, whether one agrees with what
the Iraqi people did or not, what occurred would have been the only justice the employees
received for their crimes.

It is extremely hard to investigate PMCs due to the secrecy that is guaranteed by government
contracts, as well as the fact that they are not accountable to the US military and “receive
their orders directly from the Pentagon, and both the Department of Defense and the
headquarters of the companies concerned keep their lips strictly sealed.” [5]

The secrecy begins with the contracts themselves where the government leaves out certain
legal passages that specify exactly what the companies are supposed to do, how they are
supposed to go about doing it, and if they will be held legally responsible for anything that
occurs under their watch. Uesseler cites an example of this, one that should be quoted at
length:

DynCorp received a contract for more than a million dollars from the US State Department to
organize the Iraqi criminal justice system. In June 2004, four of their employees, heavily
armed and in battle gear, led Iraqi police on a raid of the former Iraqi leader in exile, Ahmed
Chalabi. It is doubtful whether this action was in keeping with the spirit of the original contract.
But that fact that DynCorp did not receive an official warning suggests that the contract is
vague enough to allow for such “violations.” [6]

The fact that the contracts are so vague as to the point where companies can virtually decide
what they want to do has the potential to create serious problems, one example private
companies doing night raids which result in the deaths of civilians and thus aggravating the
local population and whipping up anti-American sentiment. That would make the job of US
solders that much harder because they would bear the brunt of the backlash, not the
employees that created the situation in the first place.

The situation gets worse, however, when one goes to the national levels. In the United States,
no one is able to hold any private companies accountable. The parties that “issue the
contracts are barely capable of doing much in the way of monitoring, because, for example,
they are tied down in Washington, and the state military, which would have the capabilities,
has little interest in babysitting private soldiers that aren’t part of its chain of command.” [7]
Thus the military cannot do it and Congress isn’t much better as they don’t allocate funds to
the oversight of private companies. This allows them to “exist in a state of near anarchy and
arbitrariness.”
Private companies and their personnel are not “subject to strict regulations that determine to
whom they are ultimately accountable.” Private corporations only have to go as far as
declarations of intent in which they “maintain that they instruct their personnel to respect
national laws and international human rights standards.” [8] Even if major crimes are done,
the state cannot do anything as mercenaries enjoy significant protection. “In passing Coalition
Provisional Authority Order 17 of June 2003, the Iraqi provisional government granted
exemption from prosecution to all personnel action on behalf of the coalition- including PMC
employees.” [9] This allows for PMCs to go about and do literally whatever they please,
without fear of any consequences whatsoever and could potentially have the employees do
things that they wouldn’t have done so before if they were under the law, like torturing and
killing civilians for example.

Internationally, things have the potential to get complicated quickly. The Geneva Convention
clearly distinguishes between civilians and armed combatants. However, the employees of
private companies aren’t civilians “since they are involved in the machinery of war, are
employed by governments, and frequently carry arms.” Combatants are defined by the
Geneva Convention “as people directly and actively involved in hostilities,” yet new forms of
warfare muddle this definition. “To take an illustrative question: Is a private solider in Florida
who presses a button launching a carpet bomb attack in Afghanistan only indirectly involved
in war, while a regular soldier delivering supplies there is directly engaged in hostilities?” [10]

The legality issues of private soldiers need to be solved on an international level as they
currently occupy a gray area in the legal system. However, the US government needs to hold
these companies accountable for any crimes that their employees are involved in, if not, then
situations like the one mentioned at the beginning of this topic will continue.

Limitations of International Humanitarian Law

The primary instrument that the international community has at its disposal to deal with
the problems arising from the participation of third-party private armed personnel in
conflicts is the International Convention against the Recruitment, Use, Financing and
Training of Mercenaries. The convention was adopted by the U.N. General Assembly in
December 1989, but it only became enforceable in October 2001, a month after Costa
Rica deposited the required 22nd instrument of accession for it to take effect. The slow
and limited adoption of the convention partly reflects the flaws that continue to limit its
use.

The convention's limitations can be traced to its definition of mercenaries, contained in

Article 1, Section 1, which established that "a mercenary is any person who:

(a) Is specially recruited locally or abroad in order to fight in an armed conflict;

(b) Is motivated to take part in the hostilities essentially by the desire for private gain
and, in fact, is promised, by or on behalf of a party to the conflict, material compensation
substantially in excess of that promised or paid to combatants of similar rank and
functions in the armed forces of that party;
(c) Is neither a national of a party to the conflict nor a resident of territory controlled by a
party to the conflict;
(d) Is not a member of the armed forces of a party to the conflict; and
(e) Has not been sent by a State which is not a party to the conflict on official duty as a
member of its armed forces."

Each of the individual clauses is problematic in and of itself. First, it is difficult to

establish in practice or to prove in court that someone external to a conflict is motivated
to participate in the fighting chiefly because of a desire to attain material gain. Second, it
is problematic to use the pay of other seemingly equivalent parties to a conflict as a
criterion, since the latter may not be easily verifiable or quantifiable. Third, mercenaries
can be nominally incorporated into the armed forces of a party to a conflict. And finally,
the definition is cumulative, so in order to be considered a mercenary, a person needs
to fulfill each and all of the five criteria specified, further limiting the potential use of this
instrument.

The subsequent section of the convention further defines as a mercenary any person
"who, in any other situation" is recruited for a "concerted act of violence," namely for the
overthrowing of a government or to undermine the territorial integrity or constitutional
order of a state. However, the remainder of this complimentary definition incorporates
the same clauses as Section 1, thereby re-creating the ambiguities already noted.

Attempting to apply the U.N. convention against mercenaries to PMCs adds further
complexity. To begin with, PMCs are formally established commercial enterprises, not
mercenary bands. While the booming trajectory of the private military industry since the
early 1990s includes a handful of firms that have engaged in actual combat, the majority
of the services PMCs offer -- for example, protection of assets and personnel, security
and risk advice, law enforcement and military training, deployment and field logistics,
and mine clearance -- are not intrinsically lethal. Hence, PMCs largely fall outside the
scope of the U.N. convention, which focuses on people recruited to fight.

The OAU Convention for the Elimination of Mercenarism in Africa, adopted in July 1977
and coming into force in April 1985, predates the U.N. convention. But in addition to
only applying to African states, it uses the definition for mercenaries contained in
Section 1 of the U.N. convention, thus sharing its flaws.

This is not surprising, as the U.N. and OAU definitions of mercenaries share a common
ancestor: Article 47 of the Protocol Additional to the Geneva Conventions relating to the
Protection of Victims of International Armed Conflicts (Protocol I), which was adopted in
June 1977 and came into force in December 1979. Protocol I does not envisage
banning mercenaries; it simply establishes a distinction between ordinary combatants --
state forces or forces natural to a particular territory -- and mercenaries that are
captured during armed conflicts. In particular, Protocol I recognizes the right of ordinary
combatants to be treated as prisoners of war if captured, but not of mercenaries. Yet
Article 47 transcended its specific use to become the source of the definition used in the
anti-mercenary conventions that the U.N. and AU have unsuccessfully tried to apply to
PMCs.

Partly as a result of the problems plaguing the U.N. convention against mercenaries,
leading suppliers of PMCs, notably the U.S. and the U.K, do not subscribe to it.
Furthermore, countries that endorse the U.N. and OAU conventions -- such as Angola,
the Democratic Republic of the Congo and Nigeria -- nonetheless engage significantly
in the use of PMCs. Given that the majority of states do not endorse the anti-mercenary
conventions, and those that do so ignore them in practice, it is worth examining what
has been achieved at the national level to regulate the use of PMCs.

Conclusions

PMCs have become a necessary adjunct to state and security forces, international and
nongovernmental organizations, and businesses operating in corridors of conflict and pockets of
instability. While PMCs do not exactly operate in a legal vacuum, much more needs to be done
to regulate fully this thriving yet sometimes potentially lethal sphere of commercial activity. At
the international level, international humanitarian law needs to be amended in order to more
clearly dissociate PMCs from mercenaries. The Montreux Document uses this approach, and
hopefully its principles will be systematically integrated into national and international efforts at
regulation.

The framework used by the U.S. to regulate PMCs already offers a key blueprint for other
governments to consider in the absence of any other equally robust framework at the national
level. However, this is a responsibility that needs to be acknowledged by both state suppliers
and users of PMCs. Codes of conduct, although not legally binding or universally applied, deal
with issues not necessarily covered by national or international regulation, and they should
therefore be taken more seriously.

Taken together, the various efforts at regulating PMCs demonstrate that the technical
instruments necessary to do so are available. What is missing, for the time being, is the political
will needed to apply them effectively in order to resolve this regulatory impasse.