International Law and Private Military Firms
Individual countries are left to prosecute offenders from other countries under their own laws.
In Iraq, private military firms (PMFs) are second only to the U.S. military as the largest contributor of manpower to coalition forces. PMFs are private companies whose employees operate in every facet of the war effort. No international laws or regulations exist that apply expressly to them. Their legal status varies with the location of their operations. The Military Extraterritorial Jurisdiction Act of 2000 (MEJA) extends the Uniform Code of Military Justice, which otherwise applies only to U.S. military personnel, to include military contractors in any country who contracted directly with the Department of Defense.
With the rapid growth of the PMF industry, the limitations of MEJA have become evident. It applies only to felonies and cannot be used to prosecute lesser offenses. It affects only civilians working for the Department of Defense, omitting anyone who contracted with another U.S. agency. Ultimately, it fails to affect contractors working overseas for foreign governments or organizations, so it provides no basis for regulating a global industry.
A primary reason for this void is the inability of the international community to define the modern civilian military contractor. Few people still consider the civilian contractor as nothing more than a mercenary. However, the only genus of international law that seems to apply to their activity is that law governing the participation of mercenaries in armed conflict.
Effective regulation calls for international law. Without some exercise of international jurisdiction over PMF activities, individual countries are left to prosecute offenders from other countries under their own laws. This is impractical when contemplating that much of the activity of PMFs transpires in crumbling nations possessing weak or virtually nonexistent legal systems.
The earliest international law to acknowledge the role of civilians in modern war was the Hague Convention of 1907. It acknowledges the existence of mercenaries and recognizes their presence on the battlefield as a forfeit of any protections they have as nationals of a neutral territory. The convention says nothing about restrictions on mercenaries’ participation in the conflict, only that they will be treated as soldiers of the belligerent, or warring, state.
The Geneva Conventions of 1949 were constructed to deal with the inhumane treatment of civilians and soldiers in times of war. Most notably, the Geneva Conventions focus on humane treatment of prisoners of war (POWs). Under the conventions, POWs were defined as members of the armed forces of a party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. This is landmark recognition of the mercenary’s role in armed conflict. The protections offered to POWs are broad and designed to include any and all members of a fighting force engaged in war, including mercenaries that form part of a country’s fighting force.
International legal systems in the second half of the twentieth century began to view mercenaries as more of a problem in warfare. This negative relabeling of the mercenary was the result of the emergence of the United Nations and its involvement in nations building in post-colonial Africa. Throughout the middle to late twentieth century, as governments crumbled and countries fell into civil war all over the continent, mercenaries from across the globe poured in to fight as hired guns for rebel groups or struggling governments. UN peacekeepers found themselves in direct confrontation with mercenary groups in the Congo in the 1960s.
In 1970 the UN passed the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States. It declared that no state should tolerate subversive activities directed toward the violent overthrow of another state’s government nor interfere in civil strife of another state. This was a direct acknowledgment of the disruptive activities of mercenaries on a global scale. The mercenary was officially illegitimate, no longer a viable option of governments in the developed world.
In 1977 a protocol was added to the Geneva Conventions. This was the first attempt by the international legal system to define the mercenary. A mercenary was identified as any person specially recruited to fight in an armed conflict who took direct part in the conflict, was motivated to take part essentially for private gain, was promised by a party to the conflict material compensation that was more than that paid to combatants in the armed forces of that party, was neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict, was not a member of the armed forces of a party to the conflict, and was not sent by a state that was not a party to the conflict on official duty as a member of its armed forces. Obvious problems soon arose under this lengthy definition. First among them was the inability of international courts to decipher the motivation of a foreign soldier essentially for private gain.
The efforts to address the rise of the PMF through international laws focused on thoroughly defining the term “mercenary” have missed the mark. The industry, and the many roles that its employees assume, currently put its activities beyond the pale of international law. The industry has expanded to include global companies with thousands of employees who work in nearly all facets of the war effort. Today, PMFs are the benefactors of large-scale military outsourcing, and international law has yet to discourage or even accurately identify the transaction or the PMF itself. PMFs are under no threat of sanction and subject to no fines for unlawful business practices.
A foreseeable problem for international law-making bodies in regulating the activity of the PMF is deciding exactly what types of entities they are attempting to regulate. Military contracting takes many different forms, so an international law must be clear and exact in which industries and activities it is attempting to restrain. Writing laws that will be respected by the employees and officers of these companies will be another challenge.
Regulations must make employees in the field identifiable and their corporate superiors more transparent in order to institute enforcement measures that bring the industry out of the shadows. One possible method of achieving this transparency is the creation of an international registration and oversight agency designed to keep firms compliant with international business laws and standards. This would allow for certification of the firms who are most successful and professional in the services they provide. Another possible solution lies in creating a uniform contracting procedure to govern the contracts between the employing nations and the PMFs. This could make the expectations of the PMF clearly identifiable and their relationship to the employing nation less dubious.
Outside regulation and oversight should not be viewed as a restraint on the PMF industry. A registration or certification procedure would act to exclude fringe organizations whose employees are less serious about providing strategic services in times of war and are more apt to exploit chaotic situations for illicit gains. The highly organized, highly efficient PMFs who remain accountable to the international community will be more likely to flourish in a regulated marketplace. Also, client countries would feel less apprehensive about using PMF services if there were a registration or certification process approved by a multitude of other countries.
For More Information About the Section of International Law
- This article is an abridged and edited version of one that originally appeared on page 25 of International Law News, Winter 2007 (36:1).
- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221 or go to www.ababooks.org.
- Website: www.abanet.org/intlaw.
- Periodicals: The International Lawyer, quarterly journal; International Law News, quarterly newsletter.
- Books and Other Recent Publications: Careers in International Law, 3d ed.; Labor and Employment Law in the New EU Member and Candidate States; China Law Deskbook, 2d ed.;
The Foreign Corrupt Practices Act and the New International Norms; Negotiating and Structuring International Commercial Transactions, 2d ed.; ABA Guide to International Business Negotiations, 2d ed.; Joint Ventures in the International Arena; ABA Guide to Foreign Law Firms, 4th ed.; International Lawyer’s Deskbook, 2d ed.; International Trademarks and Copyrights: Enforcement and Management, International Practitioner’s Deskbook Series.
James M. Doty is a graduate of The John Marshall Law School in Chicago. He may be reached at email@example.com.