Armed Forces and Private Security Companies:Partners or Competitors?

Posted in United States | 24-Sep-07 | Author: Dieter Farwick

"These individuals are generally highly trained before ever entering the private sector."
"These individuals are generally highly trained before ever entering the private sector."
In “Plan B for the U.S. and stabilizing the region” in and around Iraq (http://www.worldsecuritynetwork.com/Asia-Africa/Farwick-Dieter/Iraq-Hubertus-Hoffmann-on-Plan-B-for-the-U.S.-and-stabilizing-the-region), World Security Network Founder Hubertus Hoffmann proposes a significant role for Private Security Companies (PSCs) to avoid bloodshed in Baghdad within “20-30 smaller Safe Areas with checkpoints.”

During my thirty-nine years in the German Army serving in capacities ranging from small units up to division level we did not spend much time thinking about private security organisations. In our view those organizations were seen as exotic adventurers with a different mentality and a different set of values. We called them “mercenaries” – fighting for money everywhere in the world, not defending the home country as we soldiers did. Even in the 90’s in my days as operation chief at a higher NATO HQ dealing with peace support operations these persons and organisations were not on our radar screen. I now see a need to take a fresh look at the topic and have concluded through my own research that these companies play a vital role in solving world conflicts.

I have closely examined the operations of the American security firm, Blackwater Worldwide. In doing so I have realized that the term “mercenary” is far from an accurate description of what Blackwater professionals are. According to the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries (http://www.un.org/documents/ga/res/44/a44r034.htm), a “mercenary” is defined as “any person who:

(a) Is specially recruited locally or abroad in order to fight in an armed conflict;
(b) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party;
(c) Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;
(d) Is not a member of the armed forces of a party to the conflict; and
(e) Has not been sent by a State which is not a party to the conflict on official duty as a member of its armed forces.”

Because Blackwater only deploys its professionals in support of United States efforts to resolve conflicts, by definition any of its professionals that might otherwise fit the international law definition of “mercenary” is a “national of a party to the conflict“ and therefore not a mercenary. Blackwater professionals are more along the lines of highly trained bodyguards, sworn to support and defend the U.S. Constitution, risking their lives for the sake of the rule of law, readily defending the lives of U.S. diplomats, aid workers, and human rights in the most dangerous places in the world.

The world-wide strategic landscape after the Cold War in combination with dramatic Western force reductions and increasing “irregular” warfare led to an inflation of so-called “Private Security Companies” (PSCs), sometimes called “Private Military Companies” (PMCs). More than 200 internet-listed companies with approximately 1.5 million employees worldwide offer a wide spectrum of security-related services, especially in Iraq and Afghanistan, where more than 20,000 PSC/PMC employees are committed, bringing the topic of Private Security Forces to the forefront of political and public attention.

The private security industry is fairly young and fast boosting so it comes as no surprise that this rapid growth has left some sensitive questions unanswered. This newsletter addresses those lingering issues – accountability and responsibility of the individual employee and the company, the legal status of those employees in a combat environment, transparency of cost-benefit relation, codes of conduct, and jurisdiction as well as parliamentarian control and media coverage. In addition, this newsletter deals with issues such as recruitment of personnel, training, equipment as well as individual qualifications. The newsletter concludes with recommendations for the future.

Attempting to contribute to more transparency and openness in the area of private actors in modern war zones, we discussed several issues with Anne Tyrrell, spokesperson for Blackwater Worldwide. The following questions and answers are based on those discussions.

Regulatory Vacuum

The fundamental issue is: What are the binding rules and laws PSCs and their employees are accountable under? Do they follow the law of intervening states? “Host” states? And, what happens if and when non-state actors are involved? Are voluntary codes of conduct for PSCs sufficient?

While currently there is no world-wide legal system by which to answer these questions, that is not the same as a “regulatory vacuum.” As in most regulatory schemes, the situation varies from country to country and company to company. In addition to its own company policies, internal controls, and core values of integrity and accountability, as a member of the International Peace Operations Association (IPOA), Blackwater has pledged to “respect the dignity of all human beings and strictly adhere to all relevant international laws and protocols on human rights,” as well as to uphold IPOA’s Code of Conduct, which includes principles of transparency and accountability.

But who reports crimes committed by PSCs and/or their individual employees? Who does the police investigation in a failed state, far away from where these companies are headquartered?

It is in the self-interest of all partners of a contract involving PSCs to find workable answers to these questions. In the case of Blackwater and other PSC’s working for any U.S. Government agency, anyone witnessing what might be a crime by a PSC or by an individual employee of a PSC, can report to the Inspector General of the agency involved.

On March 20, 2007, the Acting Inspector General of the Department of Defense testified before the Senate Judiciary Committee on how his Office, which includes the Defense Criminal Investigative Service (DCIS), holds military contractors accountable: “Since the Global War on Terrorism began, DCIS has pursued criminal, civil, and administrative remedies against U.S. contractors and their personnel; U.S. forces personnel; and foreign entities and persons.” “In total,” explained the Acting Inspector General, “these investigations resulted in four Federal criminal indictments, nine Federal criminal informations, and two Article 32 hearings under the Uniform Code of Military Justice. As a result of the investigations, eight U.S. persons and one foreign person were convicted of felony crimes, resulting in a combined fourteen and one-half years of confinement and nine years of probation; two individuals and one company were debarred from contracting with the U.S. Government; 17 companies and personnel were suspended; and two contractors signed settlement agreements with the U.S. Government.”

Moreover, in January 2007, the Special Inspector General for Iraq Reconstruction, also known as “SIGIR,” testified that, “SIGIR Investigations has opened a total of 236 cases, with 87 currently open and the balance either closed or referred. . . . Department of Justice prosecutors continue to make progress on the 23 SIGIR cases.” A majority of these SIGIR cases involve contractors.

Most if not all of these current examples of military contractors being held accountable preceded the congressional “clarification” in the 2007 Defense Reauthorization Act that the Uniform Code of Military Justice applies to persons accompanying an armed force in the field in either a "contingency operation" or in a declared war.

According to former Inspector General of the Department of Defense, Joseph E. Schmitz, who now serves as Chief Operating Officer and general Counsel of Blackwater’s corporate parent, „Regardless of how this recent clarification is implemented, what is more important in dispelling the myth that contractors are unaccountable (or words to that effect) is that this recent legislative clarification addressed only one of many tools currently available for commanders to maintain good order and discipline among military contractors in the field.“

What is the legal status of PSC employees in combat environments?

Neither the Geneva Convention (1977) nor International Humanitarian Law give a clear answer to the legal status of PSCs and their employees in a combat environment. Are the employees civilians -- combatant or non-combatant – with the respective consequences? Where does combat start and where does combat ends? Escorting and patrolling can switch within a moment to shooting and fighting – that’s combat. Is the PSC employee collecting intelligence or transmitting fire orders part of the combat? One might argue that there is a risk to life being a PSC employee. This view is neither fair nor adequate to the problem – especially if and when a state signed the contract with the PSC. This state cannot turn a blind eye to the consequences of the contract they signed. This package of unresolved issues must be addressed.

All Blackwater security contractors who deploy in either Iraq or Afghanistan, regardless of whether or not they are supporting a military contract, carry U.S. Department of Defense Contractor Identification Cards, designating each as Geneva Convention “Category IV.” According to DoD Instruction 1000.1, “Identity Cards Required by the Geneva Conventions,” those covered by the Geneva Conventions include, “Persons who accompany the armed forces . . . provided they have received authorization” (http://www.dtic.mil/whs/directives/corres/rtf/i10001x.doc#ce3). According to Blackwater, therefore, it is apparent that the U.S. Department of Defense considers Blackwater security contractors as covered by the Geneva Conventions. Blackwater certainly considers its contractors covered by the Geneva Conventions, and trains them accordingly.

Whether a civilian contractor is considered a combatant or a non-combatant will depend upon the circumstances. For instance, when the Armed Forces contracts out military aircraft crew positions to civilians, those civilian contractors may well be considered combatants. Genevea Convention III, for instance, conferes prisoner of war status upon, „Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, . . . .“ On the other hand, an armed personal security contractor supporting a government agency other than the Department of Defense contract could well be considered a noncombatant. The important thing is that the contact specify the status.

While it may be that „Escorting and patrolling can switch within a moment to shooting and fighting,“ on closer evaluation it is apparent that this does not necessarily mean that a non-combatant thereby becomes a combatant. Blackwater security contractors undersgo extensive training -- to standards set by their respective U.S. Government client – so that each contractor understands whatever rules of engagement apply. Ultimately, it is the government contracting officials who are responsible for the standards to which each contractor is trained, and ultimately it is the government officials who are responsible for controlling each contractor in the field. Each contractor, after all, serves by contract as an agent for a government principal.

State or self-regulations?

Sarah Percy makes a strong case for regulations:

“Better regulation of the private security industry is vital. While domestic, international and informal regulations exist, there is a strong case that the current system is deficient and contains significant gaps. Regulation is necessary for five main reasons: because PSCs challenge both political and military control; because the rules governing PSCs are unclear; because PSCs are insufficiently accountable for their actions and because the industry’s future growth ought to be monitored to protect the public interest. The problems outlined stem essentially from a lack of state-directed regulation rather than from problems inherent in the nature of PSCs.”

World-wide state regulations for the use of PSCs would certainly be the best solution – under the umbrella of the UN. But is naïve to believe that this will happen in due course.

Single states might do something, as the US did in October 2007. But PSCs could easily escape those regulations choosing their residence outside the US. On the other side the US government could be forced by law to sign contracts only with PSCs residing in US and with US citizens only. Does this help in a crisis in Asia or Africa where special language skills and cultural awareness as well as intercultural competence are required on the spot? At least the final responsibility should remain in the hands of American citizen. The US government is in a fairly strong position as one of the main contractors with PSCs. In addition, the US administration could pick and choose PSCs with a positive transparent record and a binding Codes of Conduct. Following this path the market forces would start to work. The contracts would be signed with companies which meet these criteria. In sum, a mixture of state and PSC regulations might start to change the present unsatisfactory situation.

The alternative -- to stop working with PSCs -- does not exist. PSCs will remain in the game. No country can or wants to substitute the PSCs and their capacities and capabilities by going back to previous troop strengths and previous capacities and capabilities. The states see their own military forces and the PSCs as complementary partners – at least they should.

There are good reasons to continue the cooperation with PSCs but military commanders should execute more military control in their area of responsibility.

Personnel, training and equipment

PSCs benefit from force reductions. Many retired military personnel seek employment with these companies. Such individuals are generally highly trained before ever entering the private sector. Former military personnel are attracted to the world of PSC for many reasons: the pay is good; they like the camaraderie they esteemed in the military; and they are committed to serving their countries and crave a return to that role.

Another catch-word is the “tooth-to-tail” ratio of regular military forces and PSCs. This ratio differentiates the number of “fighters” from the number of supporters of the administrative and logistic tail. This ratio is in regular forces about 1:8 or even 1:10. In PSC this ratio is much better – saving manpower and financial resources, allowing these companies to be very efficient.

In training, the PSC uses its own modern facilities where they can simulate situations the employees may encounter in the field. Blackwater, for instance, has the premier training centre based at its headquarters in North Carolina. The facility is staffed by full vetted instructors with military and/or law enforcement backgrounds.

The use of PSCs is an option the UN should consider for international state and non-state organisations based upon the contract model I described before. The UN could reduce costs for worldwide peace support operations by cutting the numbers of soldiers involved so far – and efficiently implementing PSC forces of high readiness and experience.

I know that civilian international aid organisations see problems in engaging “Western” PSCs. They are afraid to lose their impartiality and even-handedness. There are at least four areas in which PSCs could support: guarding installations, providing mobile security escorts, guarding third parties as well as providing security analysis and intelligence provision. Through this support the UN and NGOs could create better working conditions and more protection for their employees. With increased efficiency they would get more out of their donations.

Parliamentarian control and media coverage

For contracts with PSCs states pay more than 200 billion dollars per year – taxpayers´ money. Therefore it seems legitimate that these taxpayers – represented by the parliamentarians - want to know more about why and how there money is spent. Why does a state need PSCs instead of committing their soldiers? What are criteria and yardsticks for success? Who controls the cost-benefit ratio? What are the standards PSCs have to meet to be accepted as partner by the state?

It goes without saying that operation security sets some limits to in-depth going information. But there could be installed a special parliamentarian committee which should get more detailed information.

The information of the parliament should not restrict the use of PSCs but would create more transparency and accountability.

The media could profit from more openness, too. I do not advocate “embedded journalists” in PSC operations. But, both the state and the PSCs could inform the public via the media about basis principles of their routine work. General information about “Codes of Conduct”, recruitment of personnel, training in their facilities as well as the availability of modern equipment could help to get a better image of this kind of “outsourcing”.

“Public diplomacy” and more transparency towards national parliaments and the media could destroy old prejudices about the way PSCs and their employees do a sensitive and dangerous job in modern irregular warfare.

Paul Bremer: "My experience in Iraq suggests that using contractors is a useful way to help relieve pressures on the…
Paul Bremer: "My experience in Iraq suggests that using contractors is a useful way to help relieve pressures on the overstretched military in such situations."
Exclusive statement from Paul Bremer: “There has been much discussion about the use of private contractors in combat zones like Iraq and Afghanistan. My experience in Iraq suggests that using contractors is a useful way to help relieve pressures on the overstretched military in such situations. In Iraq, private contractors played important roles in protecting reconstruction sites, supply convoys and ranking Iraqi and Coalition personnel. Each of these tasks would have had to be conducted by Coalition military forces. So by allowing Coalition military forces to focus on their combat duties, private contractors made a useful contribution to the Coalition’s overall effort to rebuild Iraq.”

Recommendations

It should be in the interest of all parties – state, non-state actors, PSCs and their employees to improve the present unsatisfactory situation. By no means do we want to establish hurdles and huge bureaucracies.

We want to improve the efficiency of the money we spend as taxpayers and improve the situation form the PSC employees.

WSN offers some recommendations:

  • The most important states in the private security industry – like USA and UK – should take the lead to
  • develop a legal system which improves accountability and transparency
  • They should encourage efforts to improve the international law – ideally by UN
  • PSCs and mercenaries must be treated differently
  • States should prefer “best practise PSCs” – based upon clear criterias.Loss of reputation by misdoing should be bad for business.
  • PSCs should expand their system of self-regulation. They should enhance their accountability and responsibility for their employees. They should follow strict standards in the recruitment of personnel as well as the professional skills and ethnic principles of their employees. They should offer to the public their “Code of conduct”
  • States and PSCs should improve their “public diplomacy” in order to overcome old prejudices.
  • Give the market forces and market pressure a fair chance to separate the “bad PSCs” from “best practise PSCs”
  • There should be system in place for investigating misbehaviour and the commitment of crimes
  • PSCs should use force only in accordance with local rules and international rules. The military commanders in the field should play a greater role in their area of responsibility. They should not follow the rule” It is none of my business”. They and there soldiers pay a high prize for wrongdoings of PSCs in their region
  • Insurance companies might offer incentives for “best practise PSCs”
  • There must be an organisation – state or private – to check and control PSCs activities with the right to execute sanctions.

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