Along with identifying the legal and policy considerations associated with these issues, this Article addresses 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. 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. One of the consequences of the global War on Terror is that American and coalition contractors are increasingly subjected to kidnappings, torture, and murder by terrorists, criminal elements, and other insurgency forces. Without question, civilian contractors will continue to be integral participants in the ongoing War on Terror. 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.
The Dilemmas of Statebuilding: Confronting the Contradictions of Postwar Peace Operations
Warriors Without Law: Embracing a Spectrum of Status for Military Actors
The Forgotten Threat: Private Policing and the State
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.
Corporate Warriors: The Rise of the Privatized Military Industry and Its Ramifications for International Security
The aim of this article is to introduce the privatized military industry. It seeks to establish a theoretical structure in which to study the industry and explore its impact on the overall risks and dynamics of warfare. The first section discusses the emergence and global spread of PMFs, their distinguishing features, and the reasons behind the industry’s rise. The second section examines the organization and operation of this new player at the industry level of analysis (as opposed to the more common focus in the literature on individual firms). This allows the classification of the industry’s key characteristics and variation. The third section offers a series of propositions that suggest potential consequences of PMF activity for international security. It also demonstrates how critical issue areas, such as alliance patterns and civil-military relations, must be reexamined in light of the possibilities and complications that this nascent industry presents.
Jumping the (Un)constitutional Gun?: Constitutional Questions in the Application of the UCMJ to Contractors
Undoubtedly, the expansion of the UCMJ to contractors and other persons accompanying or serving with the armed forces in the field will be challenged on constitutional grounds. But is this legislation unconstitutional? This article discusses the Supreme Court cases that have addressed the constitutionality of the application of the military law and court-martial jurisdiction to civilians, the Supreme Court decisions that may provide insight into the Court’s views of military jurisdiction, and how today’s Court might address the constitutionality of this expansion of UCMJ jurisdiction in light of recommendations made by the DoD on implementation and withholding of UCMJ convening authority. Part II of this article discusses the legislative expansion of UCMJ jurisdiction, and Part III discusses the Joint Service Committee recommendations on implementation of this expansion. Part IV discusses Supreme Court cases relevant to application of court-martial jurisdiction to civilians, and Part V briefly discusses current similarities and differences between civil court and court-martial procedure. Finally, Part VI attempts to predict whether the Supreme Court would find various applications of the UCMJ to contractors constitutional.
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.
Professional Military Firms Under International Law
Although the United States has recently brought civilian contractors under the jurisdiction of the Uniform Code of Military Justice (“UCMJ”), their status under international treaty law remains uncertain. Protocol I and the Third Geneva Convention suggest four legal categories into which such contractors may fall: armed civilians, mercenaries, contractors accompanying the armed forces, or combatants subordinate to Parties to a conflict. This Article reviews each of these possibilities and concludes that, due to the language and history of these conventions, the evolution of warfare, and prudential reasons of state policy, only the last possible classification–that armed contractors are Party combatants for purposes of international law–is a reasonable interpretation of international law. Furthermore, this Article argues that the United States has several incentives to advocate a classification of armed contractors as members of the armed forces. First, due to the extension of UCMJ jurisdiction to armed contractors during contingency operations, the United States may be responsible for the acts of PMFs in its employ under the international law of state responsibility. Because of this, it is necessary for the United States to clarify the responsibilities and rights of PMFs in order to prevent military commanders and civilian leadership from facing accusations of war crimes. Additionally, while the United States currently holds a relative monopoly on both the provision and consumption of PMF services, there is no reason why other states may not begin to use such forces in manners inconsistent with American objectives. Thus, it is in the best interest of the United States to use its dominant market position to establish an international norm of state responsibility and to use its international clout either to codify such a norm into a treaty regime or to advocate the norm as a part of customary international law. To that end, this Article will propose draft language for an international agreement on the use of PMFs by state actors and suggest possible methods by which the norm of state responsibility could be promoted as customary international law.
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 Mad Scramble of Congress, Lawyers, and Law Students After Abu Ghraib: The Rush to Bring Private Military Contractors to Justice
After the Abu Ghraib abuse became public, Congress and the world decried the actions of the military police, resulting in the prosecution of several military personnel. The military police, however, had accomplices in the abuse. Private military contractors accounted for one-third of the abuses at Abu Ghraib. Yet, none of those private military contractors ever faced criminal prosecution for their role in the abuse. The lack of prosecution gave way to a mad scramble. Congress, lawyers, and law students introduced solutions on how to bring private military contractors to justice. Nonetheless, private military contractors continue to commit crimes without any criminal prosecution. This lack of prosecution came to light again after a September 16, 2007 incident in which contractors for Blackwater allegedly fired at innocent Iraqi civilians. The incident angered the Iraqi government and the House of Representatives went on yet another mad scramble to ensure that, in the future, private military contractors will face criminal prosecution. Part II of this article describes the impetus behind the initial mad scramble after Abu Ghraib. Part III analyzes the congressional solution that resulted from the initial mad scramble, the Military Extraterritorial Jurisdiction Act (“MEJA”). Part III also discusses reasons why MEJA will fail to withstand judicial scrutiny and argues that further congressional response will suffer the same fate. Part IV describes the other congressional solution, court-martial, and why it also fails as a viable solution. Part V analyzes the other proposed solutions to bring private military contractors to justice and describes why they will not work. Part VI discusses a proposed solution that addresses the shortcomings of current congressional approaches.
The Secretary Will Deny All Knowledge of Your Actions: The Use of Private Military Contractors and the Implications for State and Political Accountability
This article argues that the main issue regarding the use of private military contractors (PMCs) is that of accountability. It begins by exploring the status of mercenaries in international law, as reflected in various conventions, protocols, and state practice. It maintains that contrary to popular belief, the use of PMCs or mercenaries–no matter how defined–is not a violation of international law. However, their use has serious political implications at both the domestic and state levels because it obfuscates the issue of ultimate responsibility.
Holstering the Hired Guns: New Accountability Measures for Private Security Contractors
On September 16, 2007, a team of security contractors from Blackwater Worldwide shot dead seventeen Iraqi civilians while escorting American diplomats through central Baghdad. The fallout was swift and farreaching. Iraq demanded that Blackwater cease operating in the country. Its parliament introduced legislation to revoke the blanket immunity granted to contractors in the early days of the war by the American administrators who governed Iraq. Within a week, family members of the victims had filed a lawsuit in U.S. court, the FBI had launched an investigation and warned of criminal charges, and the House Government Reform Committee had issued a withering report on security contractors’ transgressions. Soon after the United States invaded Iraq in 2003, military commanders, academics, and Iraqi officials have warned of insufficient oversight and accountability for the private contractors operating there. Deployed in unprecedented numbers, contractors have been implicated in a range of alleged crimes and human rights violations. So far, however, not a single contractor has been successfully prosecuted for violence perpetrated in Iraq. Furthermore, no contractor or company has been held liable for torts committed there. Attempts at self-regulation by the industry have also proven ineffective. Recent months have seen wide-ranging attempts to bring accountability to the industry. This recent development will explain these efforts, which include legislative initiatives, criminal charges against individual contractors, and attempts by private litigants to secure judgments for money damages. Because of the enormous body of literature on the topic of private military contractors, the analysis will focus narrowly on the issue raised by the September shootings–the various punishments and remedies available under both civilian and military law for harms done by American contractors to Iraqi civilians.
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.
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.
Managing Armed Conflicts in the 21st Century
The unification of Germany extended the economic and political system of the west to the east. The system transfer led to a “problematic normalisation” as East Germans have tried to adjust to uncertainties they had never known: in employment, education and training, family life, immigration. A decade on, the book examines what kind of civil society has emerged, how East Germans fared in th social transformation and how processes of transformation in the new Germany relate to European policy agendas for analysing social transformation and its two key tenants: the transformation process affecting advanced industrial societies generally, and the process of post-communist transformation pertaining to Germany. The book addresses this “dual transformation”, firstly, by placing the developments in eastern Germany in a comparative European perspective and, subsequently, by considering in key areas of east German society and through personal responses, to what extent state-socialist legacies continue to matter.
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.