Additional food for thought
All measures to improve the regulation of PMSCs activities suggested in the Report are well defined and explained. They are interlinked and compatible with one another. The list of recommendations is very impressive. Recommendations are designed to serve as a basis for a draft action plan. And the implementation of such a plan will surely create a civilized and well regulated market for private defense, military and security services.
Another merit of the list of recommendations contained in the Report is that it encompasses a set of proposals made earlier on different occasions and makes a step forward in their conceptualization. Let us compare it with 14 recommendations the Council of Europe Council for Police Matters of the European Committee on Crime Problems started to discuss at the end of 2006[31]. These recommendations touch upon such matters as promotion of professionalism of the industry, vetting of PMSCs personnel, entrance requirements for companies’ employees, licensing of private security investigators, "moonlighting", training of private security personnel, limitations to what they are entitled to do, relations with the police and other state structures, developing effective emergency responses against terrorist attacks and disasters, privacy guarantees, self-regulation, accountability of transnational companies, corporate accountability, setting up of statutory national regulators and regulatory framework. There is no doubt that the Report is a step forward.
Though the list of ideas developed in it is very detailed, it is not exhaustive. A number of promising new ideas could be found in recent national and international legal acts and think-tanks’ research papers. Some countries, e.g. Belgium, France, Italy, New Zealand, South Africa and Zimbabwe, have already passed laws on mercenaries. These laws do not stick to Article 47, described above in all the details. To make the definition of "mercenaries" more operational, France decided, e.g., to get rid of a cumulative criterion concerning a material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in its armed forces. In accordance with it, a larger portion of the PMSCs employees could be qualified as mercenaries.
In 2005, a model law on banning activities related to the use of mercenaries was adopted by 12 MS of the Commonwealth of Independent States. It embraces a more modern multidimensional definition of mercenary activities and makes the states obligations to counter them, inter alia, in the form of PMSCs, more explicit. The model law postulates that mercenary activities could be based on motivations of non-material gains, including ideological and religious motivations. It insists that the states have the right, if not an obligation, to prevent, if required, the operations of foreign mercenaries and recruiting organizations (companies) on their territories, and to punish the parties for spreading propaganda about mercenary-related activities or financing such activities. This law partially bridges the gap between the regulation of mercenaries and that of PMSCs.
A very promising insight into the restraints which could be put on PMSCs activities and new approaches to ensuring their responsibility are provided for by recent US legal acts, as was mentioned above. One of the most promising developments is the creation of the new Commission on Wartime Contracting in Iraq and Afghanistan established in the 2008 Defense Authorization Act[32].
A new impetus for international efforts to construe a comprehensive regulation of the PMSC industry could be given by the Draft International Convention on Private Military and Security Companies presented to the public for the first time in the course of the discussion held in Moscow on October 16 – 18, 2008, by the United Nations Legal and Regional Consultations in the format of the East Europe Group and Central Asia Region "Activities of Private Military and Security Companies: Regulation and Oversight" (Draft Moscow convention)[33]. The consultations were convened pursuant to the Human Rights Council resolution 7/21 by the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the rights of peoples to self-determination[34]. After other regional consultations, the Working Group is to convene a high-level round table under the United Nations auspices. The whole process could be crowned with an intergovernmental conference dedicated to reaching a common understanding as to what additional regulations and controls are needed at the international level to make all actors, including states and PMSCs, accountable when performing defense, military and security functions[35]. The draft Moscow convention could be very instrumental for making discussions more substantial and conclusive.
The draft consists of 32 articles, at this stage, and comprises a preamble and five major parts: General Provisions, Principles, Legislative Regulation and Oversight, Responsibility, and Final Provisions. Article 1 stipulates that "the purpose of the present Convention is the promotion of cooperation between the States, so that they can more effectively solve different problems related to the activities of private military companies and private security companies (PMSCs) which are of international character". Article 2 explains the most important terms used in the text, including the difference between "private military companies" and "private security companies", as well as the difference between services they provide. Article 3 sets the sphere of application of the Convention. It establishes that the Convention does not apply to mercenaries and natural and legal persons which recruit, train, employ or finance them. Part II specifies in what manner universally accepted principles and provisions of international law should be implemented by the states regarding the PMSCs lawful and unlawful actions and activities. Article 5, e.g., defines more exactly that as far as PMSCs are concerned, the rule of law means that they are bound by the laws of the states on whose territory they are established and registered, as well as operate, and of whose nationality their employees are, and are not allowed to transgress them. Articles 6 to 9 clarify how the state integrity, respect of human rights, prohibition of mercenary activities and the use of force are to be observed. Articles 10 to 11 urge the states to take necessary measures to prevent excessive use of firearms, as well as illicit trafficking in firearms, their parts and components and ammunition. Article 12 confirms the responsibility of the states for establishing a comprehensive domestic regime of regulation and oversight for the PMSCs activities and exchange of information with their counterparts. Part III describes what such a regime should look like. It pays special attention to registration, accountability and licensing of PMSCs, licensing of import and export of military and security services, and provisions to be applied to the PMSCs personnel. Article 19, e.g., enumerates the conditions under which the PMSCs personnel may carry and use firearms. Part IV draws up the main features of criminal proceedings which could be initiated and carried out against PMSCs and their personnel. Articles 24 to 28 deal with the establishment of jurisdiction, extradition, mutual legal assistance, transfer of criminal proceedings and liability.
The Draft Moscow Convention is one of the first attempts to present in a legal form general ideas aiming at improving the regulation of the PMSC industry advanced by scholars, think tanks, governmental and non-governmental organizations and PMSCs themselves. Of course, it will be improved and polished up. It is likely to be followed by many others. But even in its present form the Draft contains precise wordings of some core provisions to be used in the future national and international legislation and a number of framework clauses which should be thoroughly studied and developed in the future.
To change the paradigm
The fact that there are new developments, and some additional elements could be added to the list of recommendations advanced in the Report, does not change anything in its high value. The Report is well done. It is in the mainstream. A lot of people nowadays tend to think the same way as its author does.
But we should not be under the impression that the approach embraced in the report may satisfy us, may be sufficient to the civil society and international community. Let us consider the situation we are confronted with again.
The industry is expanding rapidly. Its growth reflects a real need for the services PMSCs provide. PMSCs absorb precious workforce the states have to care for. People in power cannot allow themselves to see unemployment grow among the former officers, soldiers and policemen. The expansion of PMSCs is considered to be an appropriate response to this challenge too. It lightens the burden which modern states are unable now to withstand. But do these reasons outweigh the ills and misery which PMSCs bring to the modern world and all wrongdoings they commit? The answer is "no". There is no doubt about it.
First of all, we must not forget that a few years ago PMSCs were nearly non-existent. There were a limited number of such companies. Only few people knew about their activities. PMSCs sought not to attract public attention and not to arouse suspicion about their involvement in all sorts of covert operations. Otherwise, it could be detrimental to their future. At that time the services they provided were considered, as a rule, unwelcome and illegal.
Large scale outsourcing of defense, military and security activities was closely linked to the war in Afghanistan and especially to the US led invasion of Iraq, as well as to all imaginable forms of unrest, instability and guerilla warfare triggered by them. A failure of the USA, their allies, international coalition and NATO forces to bring peace, order and post-conflict reconstruction to the region created an enormous market for defense, military and security services and gave a boost to the PMSCs and their activities. In the beginning, outsourcing of state defense, military and security functions was tested in the Balkans and Latin America, where officials and authorities of some major powers preferred to hide behind private military business or, to put it bluntly, created private entities to carry out such missions which the state military and police forces had no right or will to be directly involved in[36]. But it was done carefully and in a pointwise manner. The mess in Afghanistan and Iraq has changed everything.
The example of Blackwater is particularly enlightening. Blackwater USA, based in Moyock, North Carolina, was established in 1997. The contracts from the American administration for working in Iraq propelled the company to the rank of one of the world’s largest providers of private military services. Prior to the war in Iraq, Blackwater primarily offered training services for law enforcement and military personnel. Now it offers a wide range of services, including personal security details, military training services, private military contracting, aviation support, K-9 services and its own line of armored vehicles. The government contracts during the time of the Bush Administration helped it grow by leaps and bounds. Blackwater passed from the government contracts worth just a few hundred thousand dollars in 2001 to the contracts worth hundreds of millions of dollars, an increase of more than 80,000%[37]. In total, it has received over a billion dollars from the federal government during the fiscal years 2001 to 2006. "There may be no federal contractor in America, - noted Mr. Waxman, the Chairman of the U.S. House of Representative Committee on oversight and government reform, opening the Congressional hearings on PMSCs activities in Iraq on October 02, 2007, - that has grown more rapidly than Blackwater over the last seven years"[38].
Two other details are important as well. The first is that more than a half of this amount was awarded without full and open competition[39]. Blackwater’s work in Iraq began in August 2003, when Coalitional Provisional Authority Administrator Paul Bremer awarded the company a no-bid contract to provide security to top U.S. civilian officials. In June 2004, Blackwater received a second, much larger no-bid contract from the State Department known as Worldwide Personal Protective Services (WPPS). Under this indefinite delivery, indefinite quantity contract, Blackwater was paid to provide "protection of U.S. and/or certain foreign government high-level officials whenever the need arises". On May 8, 2006, the State department awarded WPPS II, the second incarnation of its diplomatic security contract. Under this contract, the State Department awarded Blackwater and the other companies, Triple Canopy and DynCorp, contracts to provide diplomatic security in Iraq, each in a separate geographical location. The maximum value was 1.2 billion per contract, or 3.6 billion total[40].
The other important detail is the personal relationship of Blackwater, high-level management and US military and state officials. Blackwater is owned by Erik Prince, a former Navy SEAL. In the late 1980s, Mr. Prince served as a White House intern under President George H. W. Bush. Mr. Prince's father was a prominent Michigan businessman and contributor to conservative causes. Mr. Prince's sister, Betsy DeVos, is a former chairwoman of the Michigan Republican Party who earned the title of a Bush-Cheney "Pioneer" by arranging at least $100,000 in donations for the 2004 George W. Bush presidential campaign. Her husband, Richard DeVos Jr., is a former Amway CEO and was the 2006 Republican nominee for the Governor of Michigan. Mr. Prince himself is a frequent political contributor, having given over $225,000 in political contributions, including more than $160,000 to the Republican National Committee and the National Republican Congressional Committee. Blackwater hired several former senior Bush Administration officials to work for the company. J. Cofer Black, who served as director of the CIA Counterterrorist Center from 1999 to 2002 and as a top counterterrorism official at the State Department until 2004, is now Blackwater's Vice-Chairman. Joseph E. Schmitz, the Inspector General for the Defense Department from 2002 to 2005, is now general counsel and chief operating officer of the Prince Group, Blackwater’s parent company[41].
Summing up, the current widespread use of providers of defense, military and security services and insane PMSCs proliferation are wrongly associated with the objective necessities of the modern world, conflict settlement and international relations. These social phenomena have their origin in the USA-led military operations in Afghanistan and Iraq, awkward policy of export of democracy and war against terror implementation and the failure of occupation forces to bring peace, stability and sustainability to the region. They are deliberately encouraged by some interested countries and their governmental and/or shady structures which are eager to achieve their own aims having nothing to do with those officially proclaimed, even at the expense of the elementary rights and needs of the native population. Their delivery is likely to be closely related to the corruption and coalescence of public and private organizations.
The practices of relying on PMSCs and deliberately using them, as developed in Iraq and Afghanistan, have rapidly spread from the Middle East and Central Asia to all other regions of the world, e.g. to Africa and Latin America. Since 2003, the ex-servicemen from Chile, Columbia, Peru, Honduras and other countries have been contracted and subcontracted by PMSCs to serve in Iraq, Afghanistan, Haiti and other conflict zones[42]. These practices in Africa and Latin America reveal dangers to society, security, sovereignty and peaceful development even better than in Afghanistan and Iraq.
The use of PMSCs by other companies for the protection and security of their sites and personnel are becoming more and more common. The "collateral effect" is that they are utilized as well to support the ongoing wars against terrorist and drug trafficking networks, guerrillas of different kinds[43], liberation and resistance movements or directly for repression of the local population. Chilean PMSCs, hired by forestry companies, e.g., were directly implicated in the incidents against indigenous communities[44]. British Petroleum paid the former pros of the British Special Forces through the private military and security company "DSL" to train the local police in Columbia to fight guerillas[45]. Ecopetrol contracted the "Airscan" PMSC to inform the Columbian Army when and where to launch strategic attacks against them. Northrop Grumman, a subsidiary of the California Microwave Systems Inc., Airscan, DynCorp and later CIAO and subcontractors hired by them offered military operations services and directly participated in combat[46].
The Columbian case as a whole is revealing. A large number of PMSCs working there for the American administration are in charge of training the Columbian Armed Forces and National Police and providing them with sophisticated equipment, logistical support, Internet, radars and air surveillance, maintenance of intelligence database and so on[47]. It means that PMSCs play a vital role in managing internal conflicts, ensuring a US-covered implication in decision making and informing the American administration of what is going on even better than local authorities. The reliance on PMSCs entails, as in other cases, dependence on their services and strict obedience to the forces or powers exercising control over PMSCs activities. Such a situation of a state’s total dependence is described by some experts as "ex-post holdup" or, in other words, as putting the wholeness of strategic plans and security into private or foreign actor’s hands[48].
The results of PMSCs activities are perplexing. PMSCs may be very efficient and their services can be really needed. In some areas, their record appears to be good but, in general, instead of improving security and bringing solutions, the reliance on PMSCs and their proliferation are likely to cause damage to society in many ways. First, often PMSCs are used to the prejudice of the state sovereignty, independence and integrity. Second, they become operational in creating relationship of dependence between a big state and its clients or in bringing them to power. Third, their presence on the ground leads to the escalation of conflicts and unrest or to the freezing of conflicts because the parties hope to win the war instead of trying to win peace and to seek workable solutions and compromise. Fourth, PMSCs rapid growth is detrimental to the ability of the state to ensure basic needs of society in internal and external security. Fifth, PMSCs are in a position to provide security to the very few and only at the expense of the others, thus widening the gap between those who can afford private services and those who cannot, increasing inequalities between people and states and creating new dividing lines on our globe.
All these elements must be taken into consideration when we make a judgment on the PMSCs usefulness. In some cases, PMSCs seem to be a good way out when states or international organizations are unwilling or unable to act. A lot of experts share this view. But if we ask ourselves whether this or that contract is for the common good, we will see that long-term disadvantages for society greatly outweigh the immediate benefits.
The use of PMSCs may turn out to be neither safe, nor appropriate for achieving a legitimate purpose; neither cheap, nor efficient even in securing somebody’s questionable objectives. The right word could be "backfiring", as was suggested by Chairman Waxman in one of his speeches at the U.S. House of Representatives[49].
PMSCs services might appear once again relatively cheap. PMSCs are trying to prove it to the national parliaments, governmental officials and headquarters of international organizations. To this end, they present figures showing that their salaries and prices are lower as compared to the burden which the state would have had to withstand if it dared to provide the same services itself. But it is simply not true. The defenders of PMSCs argue that using them saves the government money needed to train, equip and support the troops. However, there are grounds to believe that the process may be reverse as the growing role of private military contractors causes the trained troops to leave the military for private employment[50]. By the way, the method of providing convincing proofs used by PMSCs and their defenders is biased. The taxpayers’ expenses on PMSCs are much higher. Ordinary people are obliged to pay for the state deficiencies, for growing insecurity and for diverting their money to the competitors of their national armed forces and police[51]. Having realized that, the Afghan government tried to forbid PMSCs hiring young men under 25 and even 30 years old and passed an adequate legislation but it did not work. It was too late. Moreover, taxpayers have to cover fictitious expenses cumulated by PMSCs overcharging and double-billing.
But the money wasted is a secondary thing as compared to other headaches PMSCs generate. Not caring a damn about human rights and lives of indigenous population, they incite hatred against the very essence of the cause they are supposed to serve. Neglecting and bypassing elementary moral and legal standards and evading justice with the deliberate help of their "superiors" from governmental structures, they erode the very foundations of democracy and the rule of law.
Incidents reports compiled by Blackwater reveal it as an irrefutable fact. According to the information collected for the Congressional hearing of October 2, 2007, this private military contractor had been a party to at least 195 "escalation of force" incidents in Iraq since 2005 involving firing of shots by its forces[52]. This amounts to an average of 1.4 shooting incidents per week. Blackwater's, DynCorp International’s and Triple Canopy’s contracts to provide protective services to the State Department prescribed that they could engage in defensive use of force only. In over 80% of the shooting incidents, however, Blackwater reported that its forces fired the first shots. All three companies fired first in more than half of all escalation incidents. In most shooting instances, Blackwater was firing from a moving vehicle and did not remain at the scene to determine if the shots resulted in casualties. Even so, Blackwater's own incident reports documented 16 Iraqi casualties and 162 incidents with property damage, primarily to vehicles owned by Iraqis. In over 80% of the escalation of force incidents, Blackwater's own reports documented either casualties or property damage. In one of these incidents, Blackwater forces shot a civilian bystander in the head. In another, the State Department officials reported that Blackwater sought to cover up a shooting that killed an apparently innocent bystander and so on. Blackwater also reported engaging in tactical military operations with the U.S. forces[53]. But the most damaging to the American reputation incident of this series happened on September 16, 2007, when the company contractors killed at least 11 Iraqis. In 2004 Blackwater committed hard mistakes in Fallujah where four contractors were killed and their bodies burned. That triggered a major battle in the Iraq war[54]. It resulted in the death of at least 36 U.S. servicemen, approximately 200 "insurgents", and estimated 600 Iraqi civilians. Military observers credited the intensity of the U.S. offensive with aggravating the negative Iraqi sentiment towards the coalition occupation and fueling an escalation of the insurgency. The incident was a turning point in American public opinion about the war[55].
Never have the State Department officials responded to the reports of Blackwater killings of Iraqis by seeking to restrain the company’s actions. In a high-profile incident in December 2006, a drunken Blackwater contractor killed the guard of Iraqi Vice President Adil Abd-al-Mahdi. Within 36 hours after the shooting, the State Department allowed Blackwater to transport the Blackwater contractor out of Iraq. The State Department Charge d'Affaires recommended that Blackwater make a "sizeable payment" and an "apology" to "avoid this whole thing becoming even worse". The Charge d'Affaires suggested a $250,000 payment to the guard's family but the Department's Diplomatic Security Service said that this was too much and could cause Iraqis to "try to get killed". In the end, the State Department and Blackwater agreed on a $15,000 payment. A State Department official wrote: "We would like to help them resolve this so we can continue with our protective mission". The State Department took a similar approach upon receiving reports that Blackwater shooters killed an innocent Iraqi, except that in this case, the State Department requested only a $5,000 payment to "put this unfortunate matter behind us quickly"[56]. A year later, there was no indication that the State Department conducted an investigation into the circumstances of the shootings or any potential criminal liability. The only sanction that has been applied to Blackwater contractors for misconduct and wrongdoing is the termination of their individual contracts with the company[57]. A preliminary qualification of all these cases by Chairman Waxman was: "The State Department is acting as Blackwater enabler"[58]. It is hard to disagree with the American Congressman on this point.
It goes without saying that incidents when PMSCs personnel, in particular foreign contractors, commit abuses of different kind, kill innocent persons or assist in having them killed by furnishing false information and escape the country unpunished, increase tension. These incidents happen routinely. They proliferate in an atmosphere of impunity. As the Amnesty International puts it, "PMSCs are operating in capacities that enable them to use force against combatants or civilians in a manner that violates international human rights and humanitarian law… They have been implicated in abuses ranging from torture to indiscriminate shootings and killings. Crimes by contractors have gone largely unpunished. The combination of a patchwork of applicable laws and regulations, a contracting system with few built-in accountability mechanisms and seemingly no political will to bring human rights abusers to justice has created an atmosphere of impunity for human rights violations"[59]. All this poses basic questions of whether reliance on PMSCs and their proliferation help to improve security, facilitate conflict settlement, appease unrest and promote democracy and the rule of law. The answer is no, not at all.
It is very important that American experts happen to come to nearly the same conclusion, using, though, somewhat different reasoning. Testifying recently before a U.S. Congressional committee, Laura A. Dickinson, professor from the University of Connecticut School of law, e.g., started pretending that abuses and other wrongdoings committed by American PMSCs are a relatively rare phenomenon and that there is almost nothing to complain about in their activities. She said: "While most contractors have performed admirably and filled vital roles – and more than 1,100 contractors have died in Iraq while doing so – some have committed serious abuses without being held accountable"[60]. Bur after enumerating all kinds of abuses and describing their backfiring effect, the American lawyer unambiguously supported the above conclusion. Here is her judgment: "We are left with unmistakable conclusion that the use of private security contractors and interrogators potentially threatens core values embodied in our legal system, including (1) respect for human dignity and limits on the use of force and (2) a commitment to transparency and accountability"[61].
But if the conclusion is correct, we must reconsider drastically a handful of recommendations cited above. It is of vital importance not to forget that the UN General Assembly Definition of Aggression qualifies as an act of aggression "the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State… or its substantial involvement therein"[62].