Guns for Hire: The War Crimes Act of 1996 & Its Applicability to Private Security Contractors in the War on Terror

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Christopher Bailey
Rule of Law Externship – Fall 2009

 

 

 

Table of Contents

Table of Contents…………………………………………………………..……………2

I. Introduction……………………………………….…………………….…………….3

II. Evolution of PSCs……………………………………………………….…………...5

III. Setting the Stage……….……………………………..…………………………….10

IV. Searching for Accountability: U.S. War Crimes Act……………....….…………12

Monism v. Dualism………………………………………………….………….12

Application of the War Crimes Act…………………………….…….………..16

V. Alternatives to the War Crimes Act..……………………………….……….……..21

            Military Extraterritorial Jurisdiction Act…………………….………..……..21

            Elimination of PSCs from Combat Roles……………………………………..24

            A Pragmatic Solution……………………………….……………………..……26

VI. Conclusion………………………………………..………………………………....28

 

 

 

 

 

 

 

 

 

 

I. Introduction           

As the United States military engagement in Iraq winds down and the engagement in Afghanistan gears up; there is no shortage of accounts, assessments, denials, and critiques of U.S. military operations over the past eight years.  These critiques range from the questionable intelligence or outright lies regarding Saddam’s possession of weapons of mass destruction, mismanagement of war funding, inadequate number of troops in both Iraq and Afghanistan, and the almost mythical depiction of the Bush Administration’s bloodlust for torturing terrorists.  While these critiques are relevant for understanding the overall U.S. conflict in Iraq and Afghanistan, the rise in use and evolution of private security firms is seldom discussed.  This is not to say that the high profile events--the ambush and mutilation of four Blackwater operators in Fallujah in 2004,[1] the unprovoked killing of 17 Iraqis by Blackwater operators in March 2007, and the most recent photos of ArmorGroup’s hardcore partying and hazing in Afghanistan--are not covered.[2]  The public discourse on private security companies (PSCs), however, largely revolves around these isolated incidents and does not discuss the broader subject of what their use in the battlefield means for modern conceptions of the legality of armed conflict and the use of force.

            PSCs are a fact of modern warfare, yet domestic international law has failed to evolve to create a legal framework that account for PSCs.  Supporters of PSCs state that the highly publicized incidents are examples of “bad apples” in the field and do not reflect a broader systemic problem.  This view, however, ignores the evolution of PSCs from use as security personnel to their use in highly covert offensive operations.  In recent months, evidence surfaced that the CIA had created a covert assassination program to locate and kill high-level Al-Qaeda operatives.[3]  The assassination program was not designed for U.S. Special Forces, but was a contract-based program awarded to Blackwater.[4]  The current state of armed conflict is changing and despite one’s personal views on the legitimacy of PSCs, PSCs are operating in increasingly offensive operations with little to no oversight by the U.S. Government.  Further, the risk to civilian contractors has grown because as civilians they are expressly forbidden to participate directly in hostilities and if they do participate, they become unlawful combatants and are subject to criminal prosecution under customary domestic and international law.[5]  

PSCs are currently operating outside of the law that puts both their personnel and other civilians at substantial risk.  As PSC’s roles in combat increases, so should their liability and immunity in both the domestic and international spheres.  The difficulty in prosecuting Blackwater operators over the March 2007 incident in Iraq has highlighted the problem of contractor immunity and begs the question, can Blackwater or any other PSC be held liable for their actions abroad under U.S. law?  Although liability has been elusive, the U.S. War Crimes Act of 1996 does provide a legal framework that would make PSCs criminally liable under U.S. law.

            To assess the effectiveness of the U.S. War Crimes Act of 1996, it is important first to address the evolution of PSCs into their present form; powerful multi-national corporations that provide training, logistics, intelligence, technology, and offensive capabilities.  Multinational corporations like Xe (formerly known as Blackwater International), Executive Outcomes, and ArmorGroup, epitomize this evolution.  These companies highlight both the effectiveness of PSCs as well as their excesses.  Countries unwilling or unable to commit their own military personnel to conflicts can easily hire or contract with PSCs to “assist” their allies and strategic interests all while maintaining deniability and avoiding military casualties.  With the more substantial role that PSCs can play addressed, the next step is to set the stage for testing the effectiveness of the War Crimes Act of 1996 with a hypothetical situation. 

The hypothetical consists of the CIA hiring the fictitious firm Strategic Security International (SSI) to assassinate high-level Al-Qaeda operatives in Afghanistan.  The mission, while successful in killing the three Al-Qaeda targets, also has a heavy civilian casualty toll with 15 civilians killed.  The question is whether SSI operators are criminally liable under the U.S. War Crimes Act of 1996, and if not, what shortcomings must be addressed to bring SSI and other PSCs accountable to the rule of law.    

 

II. Evolution of PSCs

The term “private security company” conjures up images of tattooed bodyguards, security personnel, and glorified rental cops.  Soldiers of fortune have been the inspiration for Hollywood films, television series, and countless documentaries and articles.  Although the majority of publicity surrounding PSCs focuses on their roles as bodyguards and providers of site security in Iraq or Afghanistan, the more provocative but less covered role is their use in large-scale offensive missions.  As the Cold War ended in the late 1980s there was a significant shift in many countries, especially the United States, to downsize and streamline their military forces.[6]  As this shift occurred, traditional state-based national identity weakened as ethnic and religious based identities strengthened. The traditional military structures of large armaments and huge armies quickly started becoming obsolete, because the new wars were “asymmetrical.”[7] The new trend emphasized efficiency and downsizing, streamlining military forces to provide rapid response in any location around the globe.[8]  This shift in strategy created large numbers of highly trained but unemployed soldiers.[9]  These well-trained soldiers, coming from dozens of countries, had little to no employment opportunities at home and so started looking to export their skills.[10]  At the same time as the surge in unemployed soldiers, the traditional balances of power began to shift, and the number of failed states increased. A unipolar international security framework weakened the interest in traditional armies, as the upsurge in non-state-based violence called for new military structures.  As groups began to jockey for power, a new commodity emerged, private armies.[11]  The surplus military personnel, combined with the highly volatile international arena at the time, led to the evolution of PSCs from security guards to full-scale combatants.[12]  As the Cold War alliances disintegrated around the globe, former states broke apart and became locked in bitter civil conflicts over competing national interests.[13]

These new states, lacking the resources and political clout to organize large-scale forces, turned to PSCs to equip, train, and launch missions on behalf of their particular banners.  This shift is best illustrated by two particularly poignant examples from the 1990s; the South African-based Executive Outcomes (EO) onslaught against the rebel group RUF in Sierra Leone and Military Professional Resources Inc.’s (MPRI) significant training and support of Croatian forces fighting Serbia in 1994 and 1995.[14]

This trend towards privatization occurred beyond emerging states, happening in the most developed as well, particularly the United States.  The United States has traditionally used the national military structure for the majority of its military needs, but after President Clinton’s military overhaul in the late 1990s, the Bush Administration expanded the overhaul and set out to privatize significant sections of the U.S. military apparatus.[15]  A brief comparison of the level of private contractors in the 1991 Gulf War and the 2003 Iraq War demonstrates the significant privatization shift.  In the 1991 Gulf War, 9,200 contractors supported 540,000 military personnel while in July 2007 in 180,000 private contractors supported 160,000 military personnel in Iraq.[16]  The 180,000 private contractors in Iraq were not all combat-oriented contractors, but the numbers demonstrate the shift in U.S. policy from a government-based structure to a more privatized system in waging war. 

The U.S. shift towards privatization occurred for several reasons.  First, PSCs offer a greater degree of specialization and flexibility than traditional uniformed forces.[17]  Second, the overall cost of PSCs, despite the headline grabbing amounts, are more cost effective than traditional military mobilizations.[18]  The third and most compelling reason for the U.S.’s domestic shift towards privatization is accountability.[19]  The use of private contractors obscures the true cost of war, both the financial and emotional toll.[20]  Private contractor casualty figures are neither tracked nor reported by any U.S. agency and so it is often difficult to identify the actual death toll when large numbers of casualties are simply not counted.[21]  It is this lack of oversight and accountability that makes PSCs so attractive to government entities, especially the intelligence agencies.[22] 

When the CIA was created in 1947, its central role was to deliver intelligence pertinent to national security to the President and the Department of Defense.[23]  Throughout the CIA’s history, the agency has extensively utilized the private sector to conduct intelligence and surveillance gathering.[24]  In attempts to take a more active role in CIA oversight the U.S. House and Senate established intelligence committees in the late 1970s that required Congressional approval on particular programs and regular reporting of CIA activities.[25]  It is precisely this type of oversight and accountability that PSCs are immune from.    Private contractors are exempt from the Freedom of Information Act, are not subject to Congressional oversight, and are immune from international standards for rules of war.[26]  PSCs provide governmental departments an additional layer of anonymity that allows them to operate “under the radar” without much of the associated risk of covert and clandestine operations.

            The examples in Sierra Leone, Croatia, and countless other conflicts all demonstrate the willingness of governments to utilize PSCs offensively to achieve strategic and tactical goals.  Further, as the U.S.’s conflicts in Afghanistan and Iraq demonstrate, the type of warfare waged today has shifted away from traditional large armies towards asymmetric warfare.[27]  PSCs are perfectly situated to provide quick-reaction forces in this new style of warfare and PSCs have become indispensable to U.S. military actions.[28]  What has not been addressed however is the cost of this shift.  Even critics of PSCs must recognize that international armed conflict cannot return to the traditional concept of national armies as irregular warfare continues to dominate international armed conflict.  Missions are shifting towards asymmetric non-state-based warfare and so the small private special tactics units will continue to be in demand.[29]  To test the feasibility of utilizing the War Crimes Act to prosecute PSCs, it is necessary to construct a realistic model of PSCs operations in the current environment of armed conflict.

 

III. Setting the Stage

The latest news reports regarding the CIA/Blackwater assassination program provides a useful case study for understanding the applicability of the War Crimes Act.  In 2004, the CIA revamped a covert assassination program to target high-level al Qaeda members throughout Afghanistan, Pakistan, and Iraq.[30]  The CIA hired Blackwater for their “extensive” contacts in the region as well as their general expertise in clandestine operations.[31]  The operations unit was to consist of roughly twelve personnel, including non-U.S. citizens supposedly trained in tracking high value targets in Afghanistan and Iraq.[32] Although CIA Director Leon Panetta insisted that the Blackwater program never left the drawing board, it is easy to hypothesize a small operational team being activated to capture or kill known al Qaeda operatives.  Policy-level support for such contract operations is evidenced by the fact that four separate CIA Directors attempted to bring the program back in different forms, all utilizing PSCs to carry out the operation.[33]   

Using the CIA/Blackwater program as a model, the CIA has created an assassination program that targets high-level al Qaeda operatives for assassination throughout the globe.  The CIA hires SSI to design, create, and implement the assassination program.  SSI is a multi-national corporation based in the United States that has conducted operations in a number of different countries and is made up largely of ex-military personnel, including a number of U.S. Special Forces veterans.  SSI operatives consist of U.S., Afghani, and third-country personnel.  Local personnel are nationals of the state that the PSC is operating in and are often hired for knowledge of local dialects, customs, and general mission facilitation in the target country.[34]  Third-country personnel are often former ex-special forces operators from foreign countries other than the United States.[35]  The CIA hires SSI because of its extensive intelligence and logistics network as well as for an added layer of deniability for global CIA operations. Further, SSI could typically avoid problems of state sovereignty and diplomatic relations due to their status as a private corporation, and they provide a high level of operational expertise without the standard oversight that comes with CIA/DoD joint operations. 

The CIA provides SSI a list of high profile al Qaeda targets for SSI to locate and either capture or kill.  The CIA provides SSI with intelligence that suggests that three of the targets are located in western Afghanistan.  SSI sends a small unit of twelve operatives: consisting of a mixture of U.S., Fijian, and Afghani citizens, into Afghanistan along the border with Pakistan.  The unit locates three al Qaeda members in a border village and proceeds to engage the targets.  After the operation has ended, all three al Qaeda members have been killed, but an additional fifteen civilians were killed during the exchange of gunfire.  Afghani Police investigate the shooting and determine that SSI operatives were at the scene and the ones involved in the gun battle. They further determine that the civilians were gunned down indiscriminately and without provocation.  The Afghan Government puts pressure on the U.S. military to hand over the SSI operators for trial in Afghan courts; however, SSI quickly gets it’s foreign personnel out of the country and returns each non-local operative to their respective country of nationality.  Afghanistan’s Government puts significant pressure on the U.S. Government to apprehend those responsible and prosecute them for the shooting of the fifteen Afghani civilians.  The Department of Justice apprehends the U.S. national contractors and intends to try them under the War Crimes Act.  

 

IV. Searching for Accountability:  U.S. War Crimes Act

Monism v. Dualism

            Before directly analyzing the applicability of the War Crimes Act, it is important to review the traditional framework of domestic and international law that typically applies in cases that touch both the domestic and international realm.  Traditional concepts of jurisdiction often collide at the intersection of domestic and international law and are often competing principles of territorial, nationality, protective, and universal jurisdictions.  The Status of Forces Agreement (SOFA) between Afghanistan and the United States, though pertinent to finding jurisdiction, is not at issue in the applicability of the War Crimes Act.[36]

Under the territorial principle, exclusive authority to adjudicate an issue is based on the territory of a State.[37]  The territorial principle posits that a State has complete and total control over any crime arising within the territory of that State.[38]  This is the basic and easiest form of jurisdiction to find because as the State is the core actor under international law, the State has complete control over its own territory.  Thus, a foreign State has no jurisdiction in another State without express permission.[39]  Under the territorial basis for adjudicative jurisdiction the United States would have no jurisdiction over the incident in the SSI hypothetical; the event in question occurred in Afghanistan and so the United States has jurisdiction only over things that happen within the borders of the United States.  Afghanistan, despite the United States and NATO presence, is still a sovereign state for the purposes of international law and thus maintains territorial jurisdiction.

            The United States only opportunity to gain adjudicative jurisdiction to prosecute SSI is through the nationality principle.  The nationality principle stands for the proposition that a State can exert control over its own citizens, even when that citizen is not within the State of nationality, “Under this theory a state may exercise its sovereign power by prescribing conduct for its nationals, even where they are abroad.”[40]  This form of jurisdiction is known as the “active nationality” principal because the State exercises jurisdiction based on the perpetrator’s nationality in contrast to the “passive nationality” principal where the State can exercise jurisdiction based on the victim’s nationality.  In the hypothetical, the U.S. can exert jurisdiction over SSI, a U.S. incorporated corporation, and over the U.S. operatives on the mission because they are U.S. nationals.  The nationality principal, though theoretically useful, has practical shortfalls.  The incident in question occurred in Afghanistan so problems of evidence and witness access, forensic analysis, and passage of time, all can frustrate and undermine any case.  Further, the lack of territorial jurisdiction limits the reach of the active nationality principle; not all of the SSI operators on the mission are subject to U.S. jurisdiction and thus cannot be tried in U.S. courts. 

The third basis for adjudicatory jurisdiction under international law is the protective principle.  The protective principle asserts that a state has jurisdiction to the extent necessary to protect its fundamental and legitimate interests.[41]  This principle is typically deemed the “national security” principle and is utilized when states consider a fundamental threat to their national security and in response preemptively exerts sovereignty over a particular individual or claim.[42]  Despite the broad nature of the protective principle, a state must demonstrate a pressing need or threat to their national security to trigger jurisdiction.[43]  In the SSI hypothetical, there is no pressing national security threat to trigger jurisdiction.  The U.S. would have a strong argument in asserting that due to the clandestine nature and scope of the operation that the incident is pressing for their national security.  Despite this argument, the protective principle is considered a last resort and the U.S. would still have difficulty gaining jurisdiction over the third-country nationals working for SSI.

The theory of universal jurisdiction holds that a state is entitled or even required to bring proceedings in respect of certain serious crimes, irrespective of the location of the crime, and irrespective of the nationality of the perpetrator or the victim.[44]  Though the definition is quite broad, there is a very narrow list of crimes that fall under universal jurisdiction’s scheme: piracy, genocide, crimes against humanity, torture, slave trade, and war crimes.[45]  Though no country argues that these crimes should not be prosecuted, universal jurisdiction is controversial because of its dismissal of State sovereignty, the hallmark of public international law.[46] 

Although the War Crimes Act of 1996 is often touted as the U.S. codification of universal jurisdiction, the presumption is in fact false.  The War Crimes Act of 1996, though broad in scope, is significantly narrowed by its explicit limited applicability to U.S. nationals only.[47]  The statutory text specifically states that the statute applies when, “the person committing such war crime [active nationality] or the victim of such war crime [passive nationality] is a member of the Armed Forces of the United States or a national of the United States.”[48]  Under the SSI hypothetical, the only basis for adjudicative jurisdiction over any of the SSI contractors is the active nationality principle.  None of the victims are U.S. citizens and so the Department of Justice can only bring criminal charges against the U.S. nationals involved.  The non-U.S. SSI contractors in Afghanistan and in other countries are exempt from U.S. jurisdiction and the War Crimes Act.  From the outset, the inability to prosecute all the alleged perpetrators due to jurisdictional constraints is a considerable concern, but the problems in prosecuting SSI only deepens when applying the War Crimes Act. 

 

Application of the War Crimes Act

            The War Crimes Act was enacted in 1996 to serve several purposes, “(1) to help deter war crimes against U.S. personnel; (2) to ensure that the United States would be able to fulfill its obligations under the Conventions; (3) to have a means of dealing with persons who had committed war crimes abroad and then fled to the United States…and (4) to provide a clear statement of the U.S. commitment to punish war criminals, which it was hoped would put pressure on other governments to act likewise.”[49]  The legislation fulfilled U.S. treaty obligations under the Geneva Conventions to actively oppose and to prosecute violations of international humanitarian law.[50]  Further, in the aftermath of the abuses in Bosnia and Rwanda, the Clinton Administration wanted to send a clear and strong signal to the international community that the U.S. was serious about prosecuting the perpetrators of war crimes, even if they were U.S. citizens.[51]

            Two main elements circumscribe a prima facie case under the War Crimes Act.[52]  First, the defendant or victim must be a U.S. national.[53]  Second, the defendant must have engaged in prohibited conduct violating the War Crimes Statute.[54]  Prohibited conduct includes: torture; cruel or inhuman treatment; performing biological experiments; murder; mutilation or maiming; intentionally causing serious bodily injury; rape; sexual assault or abuse; and taking hostages.[55]  The two elements are simple to identify and satisfy, but the real problems arise under the statutory affirmative defenses.  Section (d)(3) provides an exception for collateral damage or death, and damage or injury incident to a lawful attack for particular acts that would otherwise be prohibited, specifically murder; mutilation or maiming; and intentionally causing serious bodily injury.[56]

Applying the statutory elements to the SSI hypothetical, the first hurdle is the requirement that either the victim or the perpetrator be a U.S. citizen.  Out of the SSI team, only the U.S. citizens are potentially liable under the War Crimes Act.  This severally limits the statute’s effectiveness because SSI and other PSCs can simply utilize third country operatives for the most controversial missions to avoid domestic U.S. liability.  The second hurdle is the most difficult in prosecuting U.S. nationals, the exception to liability if the prohibited act is incident to a lawful attack.  SSI operators would have a powerful argument that their assassination mission was a lawful attack. Opponents would contend that any clandestine operation was not lawful, however, due to the current general military deployment in Afghanistan, clandestine operations would be viewed as falling under the umbrella of lawful engagement.  Further, the CIA would likely claim that their operations are lawful based on national security needs.  The SSI unit is working under contract for the CIA, a U.S. Government agency; to capture or kill wanted terrorist suspects.  The fact that innocent civilians died during the raid does not rise to the level of a war crime under the Act because they lacked the specific intent to target civilians.  The intent element is key in this instance because the SSI team did not intend to kill the civilian bystanders; the killing is collateral to the lawful attack, and thus falls under the statutory exception.  It is likely that if U.S. SSI operators were charged under the War Crimes Act, they would not be found liable due to the statutory exceptions.

            How is it possible that the U.S. legislation codifying the Geneva Conventions has such a significant loophole?  Under the statutory language, U.S. courts could easily classify any attack as “lawful” to defeat statutory liability.  The War Crimes Act in practice highlights the disparity between the purpose of the Act and its actual application. The majority of claims brought under the War Crimes Act are dismissed for lack of severity or specificity.[57]  In the SSI hypothetical, the fifteen civilian deaths, though tragic, would likely fail to rise to the level of severity to trigger application of the War Crimes Act.  Due to the relatively few cases that interpret or apply the War Crimes Act, it is difficult to gain a sense of the parameters on what actions arise to the level of “war crime” for the purposes of the statute.[58] There are a number of international cases and decisions that have interpreted the scope of the Geneva Conventions, however, these decisions are not binding due to the U.S. system’s precedent requirement.  U.S. case law has not developed an in-depth analysis of the U.S. War Crimes Act and in fact, there have only been three decided cases that actually interpret the War Crimes Statute at all.  Out of those three cases, only one of the cases was against a U.S. national.[59]  The case, In Re Agent Orange Product Liability Litigation, was a civil suit brought by Vietnamese nationals against the U.S. government for the use of the Agent Orange chemical during the Vietnam War.[60]  The court found that the U.S. use of the Agent Orange herbicide did not constitute murder under the War Crimes Act because of the lack of intent to kill and the military necessity for the herbicides’ use.[61]  Thus, in the statutory language and in the case analysis, lack of specific intent coupled with a lawful attack precludes liability under the War Crimes Act.[62]  In the limited case law interpreting the War Crimes Act, none of the alleged perpetrators have been found liable for the commission of war crimes.[63]

            The history of the War Crimes Act begs the question, why has its been so ineffective at prosecuting war crimes?  Why would the U.S. government create such a powerful exception, the lawful attack exception, which virtually precluded all offenses? The answer identifies the key problem in the War Crimes Act’s applicability to PSCs.  The U.S. Government created the War Crimes Act to gain jurisdiction over foreign nationals who had committed war crimes against U.S. citizens or soldiers and to comply with the terms of the Geneva Conventions.[64]  The War Crimes Act was never intended to be used in relation to U.S. led operations or U.S. military personnel.[65]  The U.S. military has its own military judicial system and legal code, the Uniform Code of Military Justice, (U.C.M.J.) which is utilized to prosecute active-duty U.S. military personnel for criminal conduct.[66]  Further, the War Crimes Act of 1996 was intended to fulfill the U.S. obligations under the Geneva Conventions, which requires some form of passage of domestic legislation.[67]  The DoD had no objections to the War Crimes Act because it had already codified the applicable provisions of the Geneva Conventions in the U.C.M.J., military training manuals, and other pertinent materials.[68]  Neither Congress nor DoD actually anticipated the statute being used to try any U.S. national for official U.S. military operations because at the time both assumed that any incident involving a U.S. military operation would involve an alleged perpetrator who was a U.S. service member already subject to the U.C.M.J.[69] At the time, the U.S. was not using PSCs in combat operations and neither department recognized the future expansion of their use in U.S. operations.[70] 

For the purposes of the War Crimes Act, PSCs operate outside of the law and enjoy virtual immunity for their actions overseas.  PSCs enjoy the protection of U.S. classification as conducting lawful operations, immunizing them from the War Crimes Act, but are also not subject to the U.C.M.J. because their contracts can be facilitated through other government departments like the Department of State and CIA.  SSI, or any other PSC similarly situated, cannot be held liable under the War Crimes Act.  The legislation was not created to account for PSCs operating on the battlefield and is ill equipped to handle the modern forms of international armed conflict.  The War Crimes Act was designed for a specific purpose but under the current trend in armed conflict to use PSCs, a new structure of jurisdiction and liability must be utilized.  A myriad of questions are raised however when attempting to define what accountability should look like.   Should it be the international community or domestic legislation that reins in PSCs?  Will creating encompassing legislation destroy the utility of PSCs on modern combat?

 

V.   Alternatives to the War Crimes Act

Military Extraterritorial Jurisdiction Act

Due to the inapplicability of the War Crimes Act, are there other ways to hold PSCs liable for their conduct outside of the United States?  The recent press reports on the Department of Justice indictments against Blackwater guards’ highlights the ambiguous legal framework that surrounds the prosecution of PSCs.  In December 2008, the Department of Justice, in a 35-charge indictment, charged five former Blackwater Security guards with fourteen counts of manslaughter, 20 counts of attempted manslaughter, and one count of using a firearm in the commission of a violent crime.[71]  The Department of Justice contends that their jurisdiction is based on the Military Extraterritorial Jurisdiction Act (MEJA) of 2004.[72] 

MEJA extends federal jurisdiction to cover civilian personnel contracted by the Department of Defense working overseas.[73]  Unlike the War Crimes Act, MEJA provides express jurisdiction over private contractors contracted under DoD.[74]  The jurisdiction is rooted in the active personality principle of adjudicatory jurisdiction.  While MEJA provides jurisdiction over PSCs vis-à-vis DoD contracts, it does not specifically provide jurisdiction over PSCs contracted by other departments.[75]  Section I (A)(ii) states that the jurisdiction extends to private personnel working for any federal agency in support of Department of Defense missions overseas.[76]  This definition would arguably cover all other federal agencies, however, this amended provision has not yet been tested.

In the Blackwater case, the defense’s central argument is that U.S. courts lack jurisdiction because the Blackwater guards were operating under a Department of State contract when the shooting incident occurred.[77]  It is a persuasive argument to contend that Section I (A)(ii) does not apply because the Department of State’s mission in Iraq is wholly separate from the Department of Defense’s mission.  The Department of State is charged with providing diplomatic relations between the United States and other countries, and their mission in Iraq is similarly focused on diplomatic relations and not specifically in support of DoD missions.  The case has not yet reached the trial phase and so the judicial interpretation of Section I (A)(ii) will largely be determined with this case.  There are clear arguments, however, on both sides of the issue.  Due to the lack of a well defined definition of what would constitute “in support of DoD missions” in Section I of the MEJA act, its applicability to PSCs outside of DoD oversight is still unclear.

Applying MEJA to the SSI hypothetical reveals a similar problem in relating the operation to DoD missions.  The CIA, like the Department of State, is a distinct agency from DoD.  It could be argued that the CIA is operating in support of DoD and trigger the statute’s applicability, but there is strong argument that although the CIA is working in support of national security, its missions are expressly separate from DoD oversight.  In this way, a private contractor could argue that MEJA does not apply to its operation because the CIA’s mission does not expressly support DoD operations.  Although both are focused on national security, the intelligence gathering and clandestine focus of CIA operations provides clear delineation from DoD for the purposes of MEJA.

Despite the efforts of both Congress and the Department of Defense to codify the U.S. responsibilities under the Geneva Convention, neither foresaw the rise in use of PSCs to the levels present today.  Domestic laws have not caught up with the use of PSCs and are not yet effective at bringing them within the U.S. justice system. 

 

 

 

 

Elimination of PSCs from Combat Roles

Some critics of PSCs contend that the only viable option is to stop all use of PSCs in combat roles.[78]  Air Force Major Michael Guillory contends that for the safety of both the civilian contractors and the local civilian population on the battlefield, the use of PSCs must end.[79]  Under the international law of armed conflict, an individual can fall under one of two designations; 1) lawful combatant and 2) noncombatant.[80]  Lawful combatants are those individuals who have the right under international law to participate directly in armed conflict.[81]  Individuals who have this right are members of national militaries who are involved in a given conflict.[82]   Noncombatants, on the other hand, are virtually everyone else.[83]  This includes civilian government employees, chaplains, prisoners of war, and any other noncombatant.[84]  PSCs, however, fall outside of these definitions because they are neither lawful combatants nor noncombatants.  PSCs are akin to irregular forces like al-Qaeda, Columbia’s FARC, or Hezbollah under international law.  PSC personnel do not have the standard protections that are afforded to members of national militaries.[85]  Thus, similar to the legal arguments drafted by the Bush Administration regarding prisoners at Guantanamo Bay who were denied rights because of their classification as unlawful combatants, the same standards often apply to PSC personnel.[86] 

There are countless examples of PSCs being treated as unlawful combatants, one of the most shocking being the kidnapping and execution of five Crescent Security Group contractors, four American nationals and one Austrian national, in November 2006.[87]  The Crescent Security contractors were on a routine mission escorting a convoy of tractor-trailers in Iraq.[88]  Author Steve Fainaru contrasts the response to a similar kidnapping of three U.S. Army soldiers to the Crescent kidnapping, “In a way, it [PSCs ambiguous status] had a perverse logic: the mercs fought by their own rules and so they died by their own rules.  But there was a whiff of shame about how the military and the State Department ignored them so assiduously.”[89]  In the kidnapping of three U.S. Army soldiers, the army sent four thousand American troops and two thousand Iraqis to scour the area where the U.S. soldiers had been kidnapped, took thumbprints and retinal scans from more than a thousand people in the area, all in hopes of finding the kidnapped soldiers.[90]  Contrast that reaction to the kidnapping of the Crescent security personnel where there was no U.S. military response at all, no rescue attempts, no canvassing, and little to no support from the U.S. State Department.[91]  Crescent Security was left to negotiate alone for the release of the hostages, but as months passed without any aid or support from the U.S. government, all contact had been broken.[92]  Over the next two years, the mutilated bodies of the five Crescent contractors turned up one by one across Southern Iraq with little to no media coverage in the U.S. or Iraq.[93]  This incident highlights the double standards that are applied to PSCs under the current legal framework.  They operate outside of the law both to their benefit and to their detriment.  Classification as an unlawful combatant leaves these individuals in a precarious position that chips away at the credibility of their mission, but also their existence.     

 

A Pragmatic Solution

Many adamant critics of PSCs argue that due to the inability to properly classify civilian contractors under international or domestic law that they should be removed from any sort of combat function and returned to a purely noncombat role.[94]  While this is a simple solution, it does not reflect the modern era of armed conflict.  PSCs are here to stay, and as traditional norms of the nation-state system continue to evolve with the rise of non-state entities, their use will only likely grow.  The most pragmatic approach is to utilize the domestic structures of jurisdiction that have proven effective while maintaining the autonomy of the PSC.  One pragmatic approach is to “deputize” civilian contractors as military personnel for all armed actions conducted.  This approach solves the two central problems surrounding PSCs: 1) classification as an unlawful combatant and 2) lack of domestic jurisdiction.  The composition of an armed force is determined by the individual state itself for the purposes of law of armed conflict.[95]  Thus, classifying PSCs as military personnel for a particular mission will raise their status to a legal combatant.  This protects the PSC personnel under international law by providing them specific rights and protections as a lawful combatant.   

The approach also solves the issue of domestic jurisdiction because PSCs will be subject to the U.C.M.J. for conduct taken during a particular mission.[96]  There have been frequent attempts to subject civilians to the U.C.M.J., however, these attempts have met with significant obstacles.[97]  To be fully effective, a provision subjecting civilian contractors would have to be expanded to specifically cover all federal departments or would otherwise suffer the same limitations of MEJA.[98]  This broad basis of jurisdiction would have to be narrowly tailored to avoid the constitutional obstacles stated in Reid v. Covert.[99]  Specifically, the provision could be limited to those contractors that participate in direct hostile action.  This would avoid other civilians that accompany U.S. forces (i.e. intelligence personnel, information technology experts, etc.) from being subjected to military court martial.  Further, unlike MEJA, the military judicial system has a rich body of law dealing directly with the issues that are typically presented in military conflicts.[100]   PSCs will be subject to the Geneva Conventions that are already embodied in the U.C.M.J. and thus quelling many of the critics concerns over their use.  Further, PSCs will be forced to operate under clear guidelines that increase the PSCs legitimacy in the public arena and also protect PSC personnel who are called to make difficult decisions under fire.  Overall, by putting PSCs under military jurisdiction, it provides a general blanket of legitimacy and legality to their operations that is not currently recognized. 

Many supporters of PSCs often argue that putting them under U.C.M.J. jurisdiction would destroy their effectiveness and flexibility, but this contention is unfounded.  PSCs will continue to operate outside the standard command structure of the military and will continue to work on a contractual basis.  Their deputizing under the U.C.M.J. provides a certain level of protection for both the PSC personnel and any potential innocent victims.  Any loss of secrecy will be substantially outweighed by the positives gained.  PSCs that operate reputably will continue to flourish and those PSCs that operate without regard to their actions will be properly disciplined. 

 

VI. Conclusion

            The 21st century has seen a fundamental shift in our traditional notions of armed conflict.  The rise of global terrorism, break up of former states along ethnic lines, and the rise of global interdependence have all had their effects.  Arguably the most intrusive and dangerous of these effects is the private security contractor.  Both domestic and international law have failed to evolve to reflect the role of PSCs.  As the incidents involving DynCorp, ArmorGroup, and Blackwater demonstrate, however, ignorance of the implications can no longer suffice.  The War Crimes Act, touted as the embodiment of the U.S. commitment to the Geneva Convention, fails miserably in application to PSCs.  Through utilizing the proven forms of jurisdiction and accountability for armed conflict, namely the U.C.M.J. and military court structure, PSCs can gain the legitimacy and the oversight that is so desperately needed.  



[1] CNN, US Expects More Attacks, http://www.cnn.com/2004/WORLD/meast/03/31/iraq.main/ (last visited Aug. 31, 2009).

[2] Washington Post Online, After Scandal, State Dept. Cleaning House in Kabul, http://www.washingtonpost.com/wp-dyn/content/article/2009/09/04/AR2009090403823.html (last visited Sept. 7, 2009).

[3] Los Angeles Times Online, CIA-Blackwater Assassination Contract Points to Larger Connections, http://www.latimes.com/news/nationworld/nation/la-na-cia-blackwater21-2009aug21,0,5024573.story (last visited Sept. 7, 2009).

[4] Id.

[5] Major Michael E. Guillory, Civilianizing the Force: Is the United States Crossing the Rubicon?, 51 A.F. L. Rev. 111, 116 (2001). 

[6] P.W. SINGER, CORPORATE WARRIORS: THE RISE OF THE PRIVATIZED MILITARY INDUSTRY 50 (2008).

[7] Id.

[8] Id.

[9] Id. at 38.

[10] Id.

[11] Id. at 50.

[12] SHADOW COMPANY (Purpose Built Films 2007).

[13] Id.

[14] DEBORAH AVANT, THE MARKET FOR FORCE: THE CONSEQUENCES OF PRIVATIZING SECURITY 86, 101 (2005).

[15] Janine R. Wedel, The Shadow Army, in LESSONS FROM IRAQ: AVOIDING THE NEXT WAR 116 (Miriam Pemberton & William D. Hartung ed., 2008) (Nixon Administration first began privatizing military functions by hiring contractors for facility security, however, the significant shift did not begin until the Clinton Administration); See also Guillory, supra note 5, at 111 (2001).

[16] Wedel, supra note 15, at 117.

[17] SHADOW COMPANY, supra note 12.

[18] Id.

[19] Id.

[20] Wedel, supra note 15, at 117.

[21] Id.

[22] Id.

[23] National Security Act, 50 U.S.C. 403-3 (a)(1) (1947).

[24] TIM SHORROCK, SPIES FOR HIRE: THE SECRET WORLD OF INTELLIGENCE OUTSOURCING 74 (2008) (CIA contracted Lockheed Corporation to build U-2 during the Eisenhower administration; contracted TRW, General Electric, Eastmans Kodak, Itek Corporation, and Polaroid to develop spy satellites, cameras, and reconnaissance aircraft).

[25] Central Intelligence Agency Legislative Oversight, https://www.cia.gov/library/publications/additional-publications/the-work-of-a-nation/intelligence-oversight/legislative-oversight-of-intelligence.html (last visited Sept. 6, 2009).

[26] Wedel, supra note 15, at 118.

[27] SHADOW COMPANY, supra note 12.

[28] Id.

[29] Id.

[30] Adam Goldman & Pamela Hess, Blackwater Tapped Foreigners for Secret CIA Program, Huffington Post, Aug. 31, 2009, http://www.huffingtonpost.com/2009/08/31/blackwater-tappedforeign_0_n_272486.html.

[31] Id.

[32] Id.

[33] Id.

[34] STEVE FAINARU, BIG BOY RULES: AMERICA’S MERCENARIES FIGHTING IN IRAQ 92 (2008).

[35] Id.

[36] Dr. Sean Foley, Iraq at the Crossroad: The Iraq Status-Of-Forces Agreement, Iran, and Guantanamo Bay, 34 Rutgers L. Rec. 39, 41 (Spring 2009) (SOFAs are generally similar to traditional treaties which relates to State to State interaction, not the applicability of domestic law to a given international incident).

[37]Cherif Bassiouni, The History of Universal Jurisdiction and its Place in International Law, in UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL 39, 40 (Stephen Macedo ed., 2006).

[38] Id.

[39] Id.

[40] Id. at 41 (citing “Harvard Research in International Law: Jurisdiction with Respect to Crime,” American Journal of International Law 29 (Supp. 1935).

[41] STEPHEN MCCAFFREY, UNDERSTANDING INTERNATIONAL LAW, 182 (LexisNexis 2006).

[42] Id.

[43] Id.

[44] Menno Kamminga, Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses, 23 Hum. Rts. Q. 940 (2001).

[45] Id.

[46] Id.

[47] War Crimes Act, 18 U.S.C. § 2441(b) (2006).

[48] Id.

[49] Michael J. Matheson, Agora: Military Commissions Act of 2006 & The Amendment of the War Crimes Act, 101 Am. J. Int’l L. 48, 49 (2007) (Common Article 3 of the Geneva Conventions defines “grave breaches” as torture or inhumane treatment, willfully causing great suffering or serious injury to body or health, and death).

[50] Id.

[51] Id. at 50.

[52] Hamed Adibnatanzi, The U.S. Codification of War Crimes: 18 USCA §2441, 14 Ann. Surv. Int’l & Comp. L. 151, 156 (2008).

[53] Id. at 157.

[54] Id.

[55] War Crimes Act, 18 U.S.C. § 2441(d)(1) (2006).

[56] Id.

[57] Id. at 160.

[58] Id.

[59] Id. at 161.

[60] In re Agent Orange Product Liability Litigation, 373 F.Supp.2d 7, 112-113 (E.D.N.Y., 2005) (Court cited Kadic v. Karadzic, 70 F.3d 232, 242-43 (2d Cir. 1995) for the proposition that war crimes committed during hostilities can trigger both civil and criminal liability).

[61] Id. at 113.

[62] Adibnatanzi, supra note 52, at 162.

[63] Id.

[64] Matheson, supra note 49, at 49.

[65] Id.

[66] Id. at 50.

[67] Id.

[68] Id.

[69] Id.

[70] Id.

[71] CNN, Ex-Blackwater Guards Charged with Manslaughter, http://www.cnn.com/2008/CRIME/12/08/iraq.blackwater.indictment/index.html (Dec. 8, 2008).

[72] Id.

[73] Military Extraterritorial Jurisdiction Act, 18 U.S.C. § 3267 (2004).

[74] Id.

[75] Id.

[76] Id.

[77] Ex-Blackwater Guards Charged with Manslaughter, supra note 71.

[78] Guillory, supra note 5, at 142.

[79] Id.

[80] Knut Ipsen, Combatants and Non-combatants, in THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 65 (Dieter Fleck ed., 1995).

[81] Guillory, supra note 5, at 114.

[82] Id.

[83] Id. at 115.

[84] Id.

[85] Id. at 116.

[86] Id.

[87] FAINARU, supra note 34, at 92.

[88] Id.

[89] Id. at 148.

[90] Id.

[91] Id.

[92] Id. at 149.

[93] Id. at 149-204.

[94] Guillory, supra note 5, at 142.

[95] Ipsen, supra note 80, at 66.

[96] Guillory, supra note 5, at 137.

[97] Id. at 138; citing Reid v. Covert, 354 U.S. 1 (1956); 10 U.S.C. § 802 (a)(10) (Aug. 10, 1956).

[98] Id.

[99] Reid v. Covert, 354 U.S. 1 (1956) (Subjecting civilians to military tribunals erodes the military/civilian system where the military is subservient to the civilian government).

[100] Matheson, supra note 49, at 50.