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Modest Proposals for Reform

by David Isenberg

This article appeared on United Press International on February 22, 2008.

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One of the enduring debates over the use of private military and security contractors is whether there are sufficient means to prosecute them if their employees do something wrong.

If you doubt the vigor with which this debate is being waged, just type in "security contractors" to a law journal database and prepare for the deluge.

There appears to be little consensus on the issue. That is not surprising.

Given that it has taken centuries to get some sort of grudging acceptance of globally recognized rules — i.e. the Geneva Conventions and international humanitarian law — for the conduct of regular military forces (who, as I noted in my first column, have committed far worse atrocities than most non-state actors can ever dream of) it is naive to think that the cumbersome processes of international law could come up with some sort of accepted rules for the conduct of modern private military and security contractors, when the industry itself is only a few decades old.

Most existing international law relevant to the subject was developed with old style mercenaries in mind. Contemporary private military and security firms assert, and rightfully so, that what they do is not at all the same, and it is wrong to label them mercenaries.

Bear in mind that in the past contractors working for the U.S.-led Coalition Provisional Authority operated under three levels of legal authority: 1) the international order of the laws and usages of war and resolutions of the U.N. Security Council; 2) U.S. law; and 3) Iraqi law as amended by orders of the CPA.

Of course, now that sovereignty, at least in the de jure sense, has been handed back to Iraq, contractors must in theory comply with any new laws and regulations promulgated by the Iraqi authorities.

On the other hand, many contractors simply don't trust the Iraqi government, fearing that important institutions, such as the Ministry of Interior, which licenses foreign military contractors, are either corrupt or infiltrated by insurgents.

If international rules are not likely in the near future that leaves national legislation, especially in the countries that hire military contractors.

Recognizing that need, lots of academics and legislators in recent years have proposed various registration and licensing schemes. For example, in 2002 the British government published a so-called green paper on private military companies outlining six regulatory options.

Contemporary private military and security firms assert, and rightfully so, that…it is wrong to label them mercenaries.

Countries like the United States and Great Britain have more leverage than commonly believed, if only they would muster the will to use it. Since most of the truly profitable contracts are issued by Western governments, any firm that wants them should be persuadable to meet certain standards.

And the contracts that such governments issue are usually written to comply with laws that are far more stringent in terms of use of force and respect for human rights than those issued by companies or governments in developing nations. Security contractors could be significantly influenced and driven by their clients.

Still, there is a problem. In a globalized world, if a military or security contractor finds the cost of doing business in one country too high, it can simply move and reincorporate in a friendlier country quicker than you can say "Delaware-registered limited liability company."

But until international law develops new terms and legal mechanisms to address the private military and security industry, existing national legal frameworks are all that we have.

So I'd like to suggest a few largely overlooked and eminently practicable opportunities for progress.

• Extension of the International Court of Justice to Private Military Contractors' activities. Academics like Peter Singer have recommended the extension of the jurisdiction of the International Court of Justice to PMC activities with clear contract provisos that PMC personnel are subject to the legal authority of international tribunals. This idea has merit, and diplomatic negotiations to accomplish this could be instituted immediately by the United States and Britain, currently the world's two largest providers of PMCs. It might be negotiated in a matter of years. After all, the movement to ban anti-personnel landmines brought about a treaty in just 10 years.
• Negotiation of a new Convention on the Use of Armed Non-Military Contractors by an Occupying Force. Such a convention could be negotiated with the aim of closing some of the existing loopholes in international law.
• Harmonization of national laws to create common standards and to help the development of an eventual universal approach. The different national laws for PMC regulation could be harmonized to create a common standard in order to help set the basis for an eventual international approach. EU and U.S. cooperation or discussion to this end might be a useful starting place or the harmonization process could begin among NATO member states.