Sunday, December 13, 2009

Private Security Contractors in Conflict Zones:A Threat to Human Rights and Democratic Ideals

The U.S. government’s use of private military contractors (PMCs) in the conflicts in Iraq and Afghanistan is “unprecedented in size and scope” (Staff, Majority, 2007, p. 29). There are consistently more employees of contractors than uniformed military personnel on the ground in these war zones (Thurnher, 2008, pp. 71-72); PMCs have more personnel in Iraq than the UK, the second largest contributor of troops (Jones, 2006, p. 355). Since it appears that the civilian presence in these regions will be increasing in the near to medium term (Holbrooke, 2009), it behooves us to examine this issue closely. The most problematic of these groups have been Private Security Contractors (PSCs), who are largely responsible for guarding diplomats and senior bureaucrats in the conflict zone. Although they represent only a small fraction of the total contractors on the ground (only about 10, 000 security and body guards compared to 265, 000 total contractor personnel (Cancian M. , 2008, p. 62)), they have been the source of almost all of the violent incidents and negative reports in the media. While this is understandable, since they are doing the most dangerous and risky work, there have been serious concerns about insufficient accountability in reported cases of misconduct and even war crimes. This blind spot in government oversight has been investigated thoroughly in the wake of an extremely violent incident on Sept 16, 2007, in which 5 members of a team of PSCs from the now infamous Blackwater USA, opened fire in a crowded Baghdad square and killed 17 people. This essay will outline the major problems with the extensive use of PSCs in Afghanistan and Iraq, discuss some of the improvements and limitations of the newly reworked governance framework regulating these actors and conclude with the recommendation that governments seriously reconsider the use of PSCs in future conflicts.

Problems Associated with PMCs
A – Escalation of Force Incidents
Although PSCs have been implicated in war crimes since NATO used them in Bosnia (Pattison, 2008, pp. 9-10), there had been little publicity regarding their presence and almost no official investigation or prosecution of contractor wrongdoing (Lehnardt, 2008, p. 1015). All this changed on Mar 31, 2004, when four employees of Blackwater USA were attacked and killed in Iraq. This incident “directly resulted in a major U.S. military offensive, which is known as the First Battle of Fallujah” and drastically changed public opinion about the war (Waxman R. H., 2007). Later that year, Blackwater Flight 61crashed in Afghanistan resulting in the death of three flight crew members and three U.S. Army personnel. Investigators found that the crash was the result of reckless conduct by the flight crew and that Blackwater had hired unqualified pilots who did not know the route and lacked the necessary experience. The flight crew was recorded commenting that they did not know the route, exclaiming about how much fun they were having and pretending they were Star Wars characters. Moreover, the lack of the required tracking devices on board the aircraft led directly to the death of one serviceman who remained alive at the scene of the crash for over ten hours, but died before help could locate him (Staff, 2007, p. 2). Though Blackwater was clearly at fault for this and furthermore, corporate documents revealed they knowingly hired unqualified personnel in order to meet demand, the incident was blamed on pilot error with no corporate responsibility alleged (Staff, 2007, p. 4). As more attention was drawn to the issue of PSCs, more controversy erupted and PSCs became a touchstone for critics of the war effort and the Bush administration.
Even with the negative publicity, most incidents of misconduct involving PSCs remained unreported in the media and there were no successful prosecutions of PSC employees (Davis, 2007, p. 15). This lack of accountability persisted despite numerous incidents involving PSCs, most often Blackwater employees (Broder & Risen, 2007). According to their own reports, Blackwater was involved in 195 “escalation of force” incidents between 2005 and October 2007, an average of 1.4 per week. Although they were authorized to use defensive force only, Blackwater employees were the first to shoot in 80 % of these occurrences (Staff, Memorandum: Additional Information about Blackwater USA, 2007, p. 6). Among other incidents, Blackwater employees have shot an innocent bystander in the head, sought to cover up a shooting that killed another bystander, and caused a major traffic accident that left an Iraqi vehicle in a “ball of flames” by driving on the wrong side of the road ( a maneuver known as “counter-flow”; they drove off without stopping to help) (Staff, Additional Information about Blackwater USA, 2007, p. 6). Blackwater employees have even dropped a riot control gas they were prohibited from using on the heads of Iraqi civilians and 10 U.S. soldiers. (Welch, 2009, p. 8). All this was done in an atmosphere of almost complete impunity.
The final blow to Blackwater’s reputation and the event which finally changed the accountability structure dealing with PSCs was the September 16, 2007 shooting incident in Nisour Square, Baghdad. A convoy of three armor-plated GMC Suburbans and two gun trucks carrying Blackwater’s security detail were returning to the green zone when five members of the security team opened fire with automatic weapons, killing 17 Iraqi civilians (Thurnher, 2008, pp. 68-9). The FBI investigation found that at least 14 of these were unjustified but the military review found that all of the deaths were wrongful (Johnston & Broder, 2007). This incident was the turning point which forced the U.S. government to reevaluate the mechanisms of oversight and accountability regarding PSCs.

B – Lack of Criminal Accountability
Until the September shootings, incidents of misconduct involving PSCs were swept under the rug. “Even in cases involving the death of Iraqis, it appears that the State Department’s primary response was to ask Blackwater to make monetary payments to ‘put the matter behind us’” (Staff, Memorandum: Additional Information about Blackwater USA, 2007, p. 9). The Christmas Eve 2006 shooting of one of the Iraqi Vice President’s guards by a drunken Blackwater security contractor is a case in point. He was arrested, but never charged, and the State Department was made aware that he returned to the United States within 36 hours. The company paid $15, 000 to the family because the original proposed sum of $250, 000 was thought by the State Department to be too much and would cause Iraqis to try and get killed for a payout (Staff, Additional Information about Blackwater USA, 2007, p. 11).
The lack of PSC accountability was caused by a number of factors, including a shortage of American officials on the ground to enforce rules. The most controversial reason has been the Coalition Provisional Authority (CPA) Order 17 “which gave PSCs immunity from prosecution in Iraqi courts” (Thurnher, 2008, p. 69). Although U.S. military jurisdiction over these personnel was extended through amendments to the Uniform Code of Military Justice (UCMJ) and the Military Extraterritorial Jurisdiction Act (MEJA), the decision to pursue these charges was left to prosecutors who often hesitated to engage such complex and expensive international cases (Thurnher, 2008, p. 89). This unwillingness to enforce the law, accompanied by the standard practice of paying for many incidences to go away, led to impunity for contractors. An “accountability gap” (Lehnardt, 2008, p. 1016) has been demonstrated by cases such as the Abu Ghraib scandal, where the abuse of detainees led to the prosecution and conviction of military personnel, while not one employee of 2 PMCs were ever indicted, despite investigators reporting their involvement in 36 % of proven incidents with six individuals found individually culpable (Welch, 2009, p. 359). The only sanctions being applied to PMC employees for misconduct was being fired and returned to their country (Staff, Additional Information about Blackwater USA, 2007, p. 13), where they often simply find work with other such organizations. Only recently, since the shooting at Nisour Square, have the practices in place to ensure accountability of PSCs been scrutinized in any way.

C – Threat to Counter-Insurgency Efforts
Many observers have noted that in addition to problems of enforcing the law and accountability, PSCs have become a liability to counter-insurgency efforts (Thurnher, 2008, p. 90). It is important to remember that PSCs represent less than 5% of all contractors employed in Iraq and Afghanistan, yet are responsible for virtually all the negative publicity they have been receiving (Cancian M. , 2008, p. 65). This has often been attributed to a body guard mindset which PSCs operate under: they will do anything to protect the principal, regardless of the collateral damage to the environment or civilians (Cancian M. , 2008, p. 65). Such an attitude runs counter to efforts to fight the insurgencies in these war zones because they rely on attempts to win the “hearts and minds” of the local populace (Thurnher, 2008, p. 66). Commentators have also pointed out the government’s over-reliance on PSCs. The state employs these groups in “pivotal roles” (Thurnher, 2008, p. 68), with some claiming that the mission would simply not have been possible without PSCs (Thurnher, 2008, p. 69). PSCs can also affect regular operations without notice; the incident in Nisour Square completely paralyzed the State Department and placed the embassy on “lockdown” for five days (Thurnher, 2008, p. 81). These issues represent a major weakness in the government’s military force structure in that it is now affected by the actions of an independent party with regard to the proper function of its own armed groups.

D – Lack of Democratic Oversight
PMCs can present serious concerns in the area of democratic oversight as well. They are sometimes seen as an attempt to skirt legislative controls on the use of force, because the actual size of the mission is disguised. PMCs were first used this way in Bosnia “to circumvent the cap of 20, 000 U.S. troops imposed by Congress” (Pattison, 2008, p. 153); the same strategy allowed the Bush administration to double the force size in Iraq while avoiding most public discussion and scrutiny (Tierney, 2007, p. 17). By July 2008, the media had reported 4, 673 deaths in Iraq of service members, but more than 1, 300 contractors had died largely unnoticed (Schooner, 2008). Although it may seem crass, the state might be more willing to engage in violent action if there are PSCs available, since the public has not shown as much concern for the deaths of contractors as for regular soldiers (Thurnher, 2008, p. 90). Furthermore, the general lack of oversight over the larger private contracting question combines with the dearth of criminal accountability and opens a path to mismanagement, corruption and abuse. The relationship between the Bush Administration and Blackwater has recently been examined closely, with some evidence of political favouritism being uncovered, such as State Department inspector general Howard J. Krongard being forced to disqualify himself from an inquiry into the firm due to his brother’s membership on their advisory board (Welch, 2009, p. 357). Furthermore, CEO Erik Prince’s family has made significant donations to the Republican Party (Welch, 2009, p. 358). Since Blackwater went from $204, 000 in government contracts in 2000 to $1 billion worth by 2007 (Waxman H. A., 2007, p. 2), it is difficult to simply dismiss the suggestion that the company may have gained some of its unprecedented growth and protection from prosecution through political maneuvering. This sort of antidemocratic activity will likely continue to increase as the use of PSCs expands.

Improvements and Weaknesses in Governance
According to the withdrawal agreement between America and Iraq, which went into effect on Jan 1, 2009, “Iraq shall have the primary right to exercise jurisdiction over members of the United States forces and of the civilian component” (Treaty, 2009), eliminating the controversial CPA Order 17 which granted contractors immunity to Iraqi law. The military has also dramatically ramped up oversight of contractors and significant improvements have been made in terms of accountability since Nisour Square (Office of the Inspector General, 2008, pp. 11, 17); furthermore, recent attempts to amend the UCMJ and MEJA will allow PMCs to be prosecuted more readily under American legal regimes (Cancian M. , 2008, p. 74). But there has been little done to clarify the nebulous status of armed contractors under International Human Rights Law (Cancian M. , 2008, p. 74). The question remains as to “whether any civilian is bound by IHL norms” (Lehnardt, 2008, p. 1017); theoretically, PMC personnel who are not instructed to commit a crime, who are not directly controlled by the state, and do not exercise any “public authority”, are civilians and cannot be perpetrators of war crimes (Lehnardt, 2008, p. 1017). This absence of a well defined framework for PSCs under international law may continue to support what some observers are calling a “reconfiguration of state power” where a high-handed approach to governance allows states to protect parties who engage in war crimes such as torture, mistreatment of prisoners, etc (Welch, 2009, p. 361). In addition to these concerns, we must also consider that though PSC employees are civilians and resist legal definitions under international law, they can lose their protected status if they take direct part in hostilities. Though there are two widespread approaches to what a “direct part in hostilities” consists of, the view usually endorsed by America would almost certainly encompass PSCs guarding important diplomats, etc (Thurnher, 2008, p. 71), paradoxically meaning that many PSCs are “civilians” who are fair targets for enemy fire. The IHL regime’s regulatory response to the massive recent growth in PSCs is highly underdeveloped.

There are a number of concerns which governments should address when considering whether to continue the widespread use of PSCs in conflict zones. While the use of contractors has expanded rapidly and is most likely going to continue in this regard (Holbrooke, 2009), almost all the problems and complaints are arising from personal security details (Cancian M. , 2008, p. 65). Putting these duties back under the purview of regular military will likely reduce the frequency of negative incidents and subject them to well-established investigative and legal mechanisms. Furthermore, PSCs are not accountable to the public but to their shareholders; it is not incumbent on them to hold the interests of the nation and the support of human rights above their profits and this can be dangerous and counter-productive (Thurnher, 2008, p. 90). Some argue that, because of the lack of concern PSCs display for the local populace or the mission as a whole, the United States would be better able to win counter insurgencies if their use was reduced (Thurnher, 2008, p. 90). While replacing all contractors with regular forces personnel is clearly not feasible, replacing only PSCs seems more within the realm of possibility (Cancian M. , 2008, p. 65); I recommend this option be investigated when planning future deployments. The extensive use of PSCs has been shown to be an unjustified risk and a threat to cherished principles of human rights, democracy and rule of law.

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