Private Security and Democracy: Lessons from the US in Iraq

Arguments about the importance of democracy for international behavior assume that states rely on military organizations rather than “hired guns.” With the growth of the private security market this assumption no longer holds true. Focusing on the United States, we use original data to compare the impacts of using private military/security forces and military forces on attributes identified as endemic to democracies: constitutionalism, transparency, and public consent. Our evidence indicates that forces raised via contract are harder to learn about and thus less transparent than military forces. Largely due to lowered transparency, Congress has a harder time exercising its constitutional role, which impedes constitutionalism. Finally, though the public is just as sensitive to the deaths of private forces as it is to military deaths, it is less likely to know about them. Thus the lack of transparency also circumvents meaningful public consent. We conclude with a consideration of the potential implications of these changes for U.S. foreign policy.

The Future of Security Sector Reform

This edited volume accumulates more than a decade’s worth of lessons learned and best practices on SSR.  The book is divided into three parts:  The first part on the ‘origins and evolution of the SSR concept’ charts the development of SSR over the past decade and details the variety of approaches to it that have emerged in that period.  The second part, “from concept to context: the implementation of SSR’ shifts from analyzing wider trends in the concept’s development to the practical challenges surrounding its application in the field.  The third part of the book identifies and breaks down the myriad challenges that confront SSR program, with the issues of local ownership and civil society engagement chief among them.  Chapters on gender, human rights, financing, the private sector, coordination and sequencing are also included.

Warriors Without Law: Embracing a Spectrum of Status for Military Actors

War today is filled with individuals covered imprecisely, if at all, by the international law of war. The law of war, a largely binary structure, is incapable of classifying the myriad of actors falling somewhere between traditional notions of “combatant” and “civilian.” Though scholars recognize this imprecision among two prominent irregular forces– private military contractors and unlawful combatants–none offer a comprehensive legal revision addressing irregular actors broadly rather than individually. This article offers a new approach that expands both the number of combatant categories and characteristics used to assign actors to these categories. This new structure requires the creation of six new classifications, ranging from traditional, regular combatants to nonparticipating civilians. The new classifications are based on ten characteristics shared by modern forces. The law then maps available privileges and protections to each status classification with an eye towards alignment with the law’s normative purposes. This new scheme will significantly improve the law of war’s ability to precisely ascribe the appropriate protective, targeting, and accountability consequences to today’s battlefield actors.

The Forgotten Threat: Private Policing and the State

What do Disneyland, the Abu Ghraib U.S. military prison, the Mall of America, and the Y-12 nuclear security complex in Oak Ridge, Tennessee have in common? They have wildly different purposes, but they share a common characteristic as employers of private police. This answer–indicative of the prevalence and numbers of private police today–would have struck the nineteenth-century observer as evidence of a gross failure by the state. Yet that reaction, in turn, would seem odd to us. Vocal support of private police can be found among public police chiefs, lawmakers, and even President Bush. What kinds of criticisms were once leveled at private police by public officials? How did one attitude, deeply skeptical of private police, evolve into another that sees heavy reliance upon private policing as beneficial, or at least benign? Here, I take a fresh look at the dynamics of that change, and by doing so, restore to their proper place fundamental questions about the use of police who are privately financed and organized in a democratic society. These questions, and the violent history that midwived them, have been largely and undeservedly forgotten by the legal literature.  Using this historical perspective, I examine the shifting status of private policing: first, by examining the history of public criticism directed against them; second, by recounting the partnership model that first gained a foothold in studies sponsored by the federal government in the 1970s and 1980s; and third, by questioning the meaning and intentions behind the idea of partnership advanced today.

Military Inc.: Regulating and Protecting the ‘A-Team[s]’ of the Post-Modern Era

This Comment argues that private military firms (PMFs) need to be regulated to hold them accountable for their human rights abuses and curb further illegal actions. It also argues that along with regulation should also come protection under international law. Part II of this Comment discusses the history of private military actors from mercenaries in antiquity to the PMFs in the present, highlighting one example of a well-respected group of private actors and another that was despised. This Comment then looks at a sampling of activities of PMFs and looks at cases of human rights abuses by PMPs. Part III discusses the efforts that have been made to regulate PMFs and the successes and shortcomings of these efforts. Part IV then argues that along with regulation, protection of these reallife “A-Team[s]” should also be advanced, specifically by giving PMPs unambiguous prisoner-of-war (POW) status. It then explores a few methods of implementing this legal protection. Finally, Part V concludes by emphasizing the necessity of both regulation of PMFs and protection of their employees.

Between War and Peace: Exploring the Constitutionality of Subjecting Private Civilian Contractors to the Uniform Code of Military Justice during ‘Contingency Operations

In the context of the Global War on Terrorism and modern counterinsurgency operations, the Department of Defense and other agencies within the U.S. government utilize an unprecedented number of private contractors to support missions in Iraq and Afghanistan.These contractors are vital to counterinsurgency efforts because they augment force limitations by performing services ranging from logistics support to security functions. However, unlike members of the Armed Forces who are “accountable under [the Uniform Code of Military Justice] wherever they are located,”  private security contractors fall into “legal ‘gray areas”’ between host-nation laws, domestic criminal laws, and international laws such as the Geneva Convention.  As civilians, they would normally be subject to host-nation laws. In Iraq and Afghanistan, however, contractors are expressly protected by agreements providing immunity from prosecution in the local jurisdiction.  In addition, although Congress passed the Military Extraterritorial Jurisdiction Act (“MEJA”) to hold civilians accountable under domestic criminal laws, MEJA has not been widely utilized due to significant resource limitations. Finally, contractors do not “fit the formal definition of mercenaries” and are thus “undefined by international law.” While perhaps well intended, section 552 raises many questions. One of the most important questions concerns the constitutionality of section 552. On one hand, numerous federal court decisions have upheld military convictions of civilians accompanying the force during times of declared war. On the other hand, the Supreme Court has declared that subjecting civilians to the UCMJ in peacetime is unconstitutional.  As such, the question of whether the UCMJ can be constitutionally applied to civilian contractors during contingency operations, which fall between war and peace, remains unanswered. This Recent Development will argue that, although there are significant due process barriers to constitutionality, these concerns do not completely rule out the possibility of applying the UCMJ to civilian contractors accompanying the force in contingency operations.

Private, Armed and Humanitarian? States, NGOs, International Private Security Companies and Shifting Humanitarianism

The article contends that, in the light of contemporary challenges, states are not only changing the meaning of the word `humanitarian’, but are also creating an expanding marketplace that includes international private security companies (PSCs) in the delivery of humanitarian assistance. Three types of factors – supply, demand, and ideational – have led to this development. On the supply side, state-demanded limitations on the private employment of violence and reduced commercial opportunities in Iraq have called for PSC diversification. On the demand side, states increasingly wish for non-state partners that are comfortable with their involvement in integrated solutions, something that PSCs, rather than nongovernmental organizations (NGOs), are more willing to embrace. On the ideational side, NGOs are concerned that humanitarian endeavour is losing its neutral and impartial status in order to facilitate counterinsurgency, `hearts and minds’ activities. PSCs, in contrast, are content with the partial delivery of assistance and likely will continue to be so given, in large part, the experiences of their personnel.

The Rise of Outsourcing in Modern Warfare: Sovereign Power, Private Military Actors, and the Constitutive Process

In this article, we will examine these world order implications through the prism of the world constitutive process. This process is one of continuing communication and collaboration that examines, refines, and allocates competence in the international system. The process of contextual mapping might shed light on the terms associated with, and concepts communicated by, privatized military combat, which might be better understood when the contexts in which they are used are illuminated in a discriminating manner. Their multiple meanings are given coherence when we appreciate the divergent contexts within which they are used. To develop the appropriate predicate for contextual mapping, we recognize that, notwithstanding the various nuanced meanings attached to the concept of privatized military combat-as an outsourcing of national security responsibilities, as a part of a nation-building campaign to bring stability to a weak or failed state, as a mechanism to subvert congressional oversight, as a pretext to channel money to certain corporations, and more, we can nevertheless distill points of reference of sufficient conceptual generality to give coherence to the appropriate description of this form of outsourcing in the context of contemporary international law and international relations.

Outsourcing Post-Conflict Operations: Designing a System for Contract Management and Oversight

Over the past ten years the United States has relied on private contractors to support military forces and rehabilitate national infrastructures in Somalia, Bosnia, Kosovo, Afghanistan, and Iraq. Though contractors are essential to such post-conflict operations, the U.S. government’s management and oversight of outsourced support remains critically deficient. As the United States builds its institutional capacity for long-term post-conflict reconstruction, it will need to outsource tasks to specialized private firms and non-profit organizations more strategically, efficiently, and transparently. This paper assesses the ramifications of post-conflict outsourcing in four sections. The first section provides a brief history of outsourcing in military and reconstruction operations. The second analyzes the benefits of private contracting arrangements. The third considers pitfalls of the current U.S. outsourcing system, which include inefficiencies as well as more serious security threats. The final section concludes with policy recommendations to improve management systems in the context of post-conflict operations.

Contracting for Wartime Actors: The Limits of the Contract Paradigm

Wartime contracts raise challenges to the classic contract doctrines of performance and remedies. First, privatization of numerous military and support functions (even support services such as trucking, laundry and food preparation) has placed private sector contractors in active war zones leading to difficulty in contract performance and injury or death to some contractors. Second, privatization of these functions necessitates that the government employ a functional supervisory system that ensures accountability to the government for contractor actions. How prepared is contract law to resolve disputes raised by these scenarios? This essay explores the role of contract in wartime and, in particular, reconstruction and the shortcomings of trying to use contract law in its current form to achieve the goals contemplated by the architects of the Iraq war. First, it considers the use of government contracts to privatize numerous government functions during the reconstruction and conflict in Iraq. Second, it considers the private ordering by contract done by government contractors to obtain security and related services from third parties. Both types of contracting raise complicated issues, including the proper use of force, to what extent the contracts should have government oversight, to what extent contractors should be accountable for crimes and whether contractors qualify as noncombatants in case of capture. Heavy reliance on contract law to address these problems raises complicated issues of delegation, performance, breach, assumption of risk, excuse and remedies. The general parameters of contracting with the U.S. government shall serve as a precursor to this discussion.

The Role of Security Sector Reform in Sustainable Development: Donor Policy Trends and Challenges

This paper attempts to account for the gap between donor policies in support of SSR in developing countries, in particular in post-conflict African states, and their record of implementation. It explores the inadequacies of the present development cooperation regime and argues that a substantial part of this gap can be explained by the tension that exists between the prevalence of a state-centric policy framework on the one hand, and the increasing role played by non-state actors, such as armed militia, private security and military companies, vigilante groups, and multinational corporations on the other hand, in the security sector. This paper, which acknowledges the growing importance of regional actors and questions the state-centric nature of SSR, recommends a paradigmatic shift in the current approaches to development cooperation. The external origin and orientation of SSR needs to be supplemented by more local ownership at the various levels of SSR conceptualisation, design, implementation, monitoring, and evaluation in order to enhance synergy between donor priorities and interests on the one hand, and local needs and priorities on the other hand.

When Peacebuilding Contradicts Statebuilding: Notes from the Arid Lands of Kenya

Local peace initiatives have been introduced in post-conflict settings in aid of statebuilding processes. However, contradictions in such efforts that undermine the state become apparent in a development context when government institutions are, generally, functioning. Peacebuilding initiatives in the arid lands of Kenya are a good example of this. While they have proved successful in resolving conflicts at the local level, they challenge the state structure in three ways. First, some of their features run counter to the official laws of Kenya and jeopardize the separation of powers. Second, they pose a dilemma, since their success and legitimacy are based on grassroots leadership and local concepts of justice. Both can be at odds with democratic decision-making, inclusiveness and gender equity. Third, they provide yet another tool for abuse by politicians and other local leaders. This reveals a dilemma: aspects of peacebuilding can actually undermine a statebuilding endeavour.

Post-Conflict Peacebuilding: A Lexicon

Post-Conflict Peacebuilding comes at a critical time for post-conflict peacebuilding. Its rapid move towards the top of the international political agenda has been accompanied by added scrutiny, as the international community seeks to meet the multi-dimensional challenges of building a just and sustainable peace in societies ravaged by war. Beyond the strictly operational dimension, there is considerable ambiguity in the concepts and terminology used to discuss post-conflict peacebuilding. This ambiguity undermines efforts to agree on common understandings of how peace can be most effectively ‘built’, thereby impeding swift, coherent action. Accordingly, this lexicon aims to clarify and illuminate the multiple facets of post-conflict peacebuilding, by presenting its major themes and trends from an analytical perspective. To this end, the book opens with a general introduction on the concept of post-conflict peacebuilding, followed by twenty-six essays on its key elements (including capacity-building, conflict transformation, reconciliation, recovery, rule of law, security sector reform, and transitional justice). Written by international experts from a range of disciplines, including political science and international relations, international law, economics, and sociology, these essays cover the whole spectrum of post-conflict peacebuilding. In reflecting a diversity of perspectives the lexicon sheds light on many different challenges associated with post-conflict peacebuilding. For each key concept a generic definition is proposed, which is then expanded through discussion of three main areas: the meaning and origin of the concept; its content and essential components; and its means of implementation, including lessons learned from past practice.

Minding the Liability Gap: American Contractors, Iraq, and the Outsourcing of Impunity

With the proliferation of the U.S. military’s reliance on contractors as a means of supplementing – and not just supplying – the troops on the ground, serious questions have arisen with respect to the legal regime governing the contractors’ conduct. The legal regime that governs those contractors is at best unclear, given the contractors generally fall outside the auspcies of the Uniform Code of Military Justice. My focus is on the accountability of the U.S. government for the actions of their private contractors. In Part II, I discuss the necessity and importantce of a civil right of action in these cases. Part III will examine the era of privatization and rise of the private contractor in the War on Terror. Part IV demonstrates the lack of accountability for U.S.-directed contractor abuse under current law. Finally, in Part V, I examine mechanism for minding the liability gap between the rights of the abused and the liability of those ultimately responsible.

Contractors on the ‘Battlefield:’ Providing Adequate Protection, Anti-Terrorism Training, and Personnel Recovery for Civilian Contractors Accompanying the Military in Combat and Contigency Operations

Providing adequate protection, antiterrorism (AT) training and, if necessary, personnel recovery for civilian contractors deployed to support U.S. military operations presents significant legal and policy challenges that both the military and civilian contractor companies have yet to fully appreciate, let alone properly institutionalize. In tandem with identifying the legal and policy considerations associated with these issues, this article will also address the matter of civil liability to the parent contracting company should it fail to provide adequate protection, or appropriate AT training, or both, to their civilian employees serving overseas in hostile environments. Due to federally imposed personnel limitations for the armed forces and the need for specialized skills in the modern high-tech military, hundreds of activities once performed by the military are now privatized and outsourced to thousands of civilian contractors. One of the consequences of the global War on Terror is that American and coalition contractors–particularly in Iraq and Afghanistan –are increasingly subjected to kidnappings, torture, and murder by terrorists, criminal elements, and other insurgency forces. Therefore, it is imperative that issues of force protection, AT training, and personnel recovery be fully delineated and the related legal contours be more clearly defined.