Two new reports give us a detailed look at how far private military and security contractors have come and how far they have to go in terms of ensuring effective oversight and accountability for their actions.
One from a transnational perspective, a United Nations working group, and the other from a U.S. nongovernmental organization (NGO), serve as a useful reminder that PMSC is not just a U.S. issue, but a global one.
First is the just made public latest report of the U.N. "Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination." This group was formed in 2005 and its predecessor group dates back to the nineties.
It is generally regarded by those in the PMC industry as being biased against them and given the name of the working group it is easy to understand why they think that. Nevertheless in recent years the group has become less polemical and more substantive and its reports usually have detail worth looking at.
This report describes activities it has undertaken since it last reported to the Human Rights Council in March 2009.
The Working Group has recently received information suggesting that in some instances PMSCs are supporting warlords and rebel groups. For instance, allegations suggest that in Afghanistan a number of PMSCs contracted by the Government of the United States have a privileged relationship with the Taliban. Other suggest that a German PMSC is considering deploying a significant number of military guards to Somalia to train warlord groups close to the self-proclaimed but not internationally recognized President of Somalia, Abdinur Ahmed Darman.
The first part of that is not news but the part on Somalis certainly is.
With respect to Afghanistan the report notes:
The presence and activities of PMSCs in Afghanistan are very much interconnected with the large number of unauthorized armed groups of various kinds on Afghan territory. The Ministry of Interior has estimated that no fewer than 2,500 unauthorized armed groups were operating in the provinces under governmental control, which represent less than half the territory of the country. There was a perception among interlocutors that many de facto non-State armed groups used the regularization process for PMSCs to disguise their groupings as private security companies, reinforcing the perception that PMSCs were a threat to peace and the stability of Afghanistan.
Given that, it is small wonder why President Karzai wants to get rid of security contractors. Furthermore:
The Working Group did not receive first-hand information that PMSC personnel have engaged in direct combat activities since the adoption of the Regulation. Nevertheless, the Working Group noted that by protecting Forward Operating Bases in conflict zones, a civilian contractor, by protecting legitimate military targets, becomes a military target and may lose protection under international humanitarian law.
And then there was this:
The Working Group visited the United States of America from 20 July to 3 August 2009. The Working Group found that the Government of the United States relies heavily on the private military and security industry in conducting its worldwide military operations. American PMSCs dominate this new industry, estimated to earn US$ 20 to 100 billion annually.
Now a word of caution is in order here. The report does not say where that estimate comes from or what exactly it covers. If one is including both logistics and security contracting I could see $20 billion or even higher. But $100 billion? Let's just say I'll need to see some evidence. Still, we're talking real money here.
In terms of accountability the Working Group found that the international community still has a long row to hoe.
As stated in its previous report to the HRC (see A/HRC/10/14/Add.2), the Working Group assessed the existence of a regulatory gap covering the activities of PMSCs at the international level. While a number of rules under international humanitarian law and human rights law could apply to States in their relations with PMSCs, the Working Group observed that there have been difficulties in the application of domestic laws, in particular for international PMSCs operating in a foreign State, as well as difficulties in conducting investigations in conflict zones. The effect of this situation is that PMSCs are rarely held accountable for violations of human rights. Although there have been efforts to address this glaring gap over the years, accountability of private military and security contractors continues to be a challenge, with a startling lack of prosecutions.
The Working Group calls for the adoption of a new international legal instrument aimed at developing standards for the regulation, monitoring and oversight of the activities of PMSCs. It says:
The aim of a new binding legal instrument is not the outright banning of PMSCs but to establish minimum international standards for States parties to regulate the activities of PMSCs and their personnel. In addition, the Working Group, concerned about the extensive outsourcing of military and security functions and the growing role of PMSCs in armed conflicts, post-conflict and low intensity armed conflict situations recommends prohibiting the outsourcing of inherently State functions to PMSCs in accordance with the principle of the State monopoly on the legitimate use of force.
You can find the addendums to the report containing reports from regional consultations at Asia and the Pacific; Africa; and Western Europe. See also Communications to and from Governments; Mission to Afghanistan; and Mission to the United States of America, which has gems like this:
The Department also specifically authorizes its contractor personnel to "conduct or support intelligence interrogations, detainee debriefings, or tactical questioning" when such functions are specified in the contract. However, following the many accounts of the participation of contractors in detainee abuses in Abu Ghraib, Congress, in the National Defense Authorization Act for Fiscal Year 2010, recommended a specific ban on the use of contractors in the interrogation of detainees. However, the Executive Office of the President explicitly rejected this limitation, stating that "in some limited cases, a contract interrogator may possess the best combination of skills to obtain critical intelligence".
The Act eventually reflected a compromise: it provides that "no enemy prisoner of war ... or any other individual who is in the custody or under the effective control of the Department of Defense ... may be interrogated by contractor personnel". However, contractor personnel with proper training and security clearances may be used as linguists, interpreters, report writers and information technology technicians in interrogations provided (a) they are covered by the same rules governing detainee interrogations as government personnel performing the same interrogation functions and (b) that Department of Defense personnel will oversee the contractor's performance. The prohibition may be waived if such a move is vital to the national security interests of the United States.
The other report is by Human Rights First, a U.S.-based NGO. Its report "In State of Affairs: Three Years After Nisoor Square - Accountability and Oversight of U.S. Private Security and Other Contractors," was released yesterday
May of its 19 recommendations have been said before, both by Human Rights First as well as many other groups.
But the portion of the report that provides snapshots of the legal and regulatory gaps in contractor oversight and accountability is worth reading. Here are a few examples.
Clarification of U.S. Criminal Jurisdiction Over non-DoD Contractors Needed. Presently, MEJA [Military Extraterritorial Jurisdiction Act] extends U.S. criminal jurisdiction to contractors abroad who are "supporting the mission of the Department of Defense." In Iraq and Afghanistan, it is arguable that non-DoD U.S. contractors are all indeed working - at least in substantial part - in support of DoD's mission. However, soon after Nisoor Square, former Bush administration officials asserted that "there is a hole" in U.S. law that prevented criminal prosecutions of non-DoD U.S. contractors.
Any jurisdictional gap that may currently exist will only increase as the military draws down in Iraq and eventually in Afghanistan because it becomes more difficult to assert that Department of State (DoS) contractors are supporting DoD's mission. With DoS reporting that it will need to more than double its use of private security contractors (PSCs) from 2,700 to 7,000 by the time the military exits Iraq, it is imperative that U.S. criminal jurisdiction over non-DoD contractors is fully clarified.
Clarification of Iraqi Jurisdiction Over non-DoD Contractors Needed. Similarly, while immunity from Iraqi legal jurisdiction for DoD contractors effectively ended as of January 1, 2009 when SOFA came into effect, the status of non-DoD contractors remains uncertain.
Significant Deficiencies Exist with Reporting Serious Incidents in Iraq. In 2009, the Special Inspector General for Iraq Reconstruction (SIGIR) found that while DoD and DoS established polices for reporting serious incidents were a significant improvement, the agencies still needed to improve the accuracy and consistency of the information captured. SIGIR found that DoD and DoS databases did not capture all reported serious incidents either as a result of database management problems or the failure of PSCs to follow reporting requirements. The DoD division (ACOD) responsible for tracking all serious incidents received did not track 57% of the serious incidents reported because it applied a more limited definition than required by DoD guidance; DoD and DoS guidance used different definitions of serious incidents; information for the same incidents were inconsistent among databases; and no organization appeared to have visibility over subcontractor PSCs. Moreover, the USAID's Office of Inspector General 2009 audit report found PSC subcontractors for USAID in Iraq were not reporting all serious incidents.
Afghanistan Lacks Systematic, Coordinated Reporting Process. In Afghanistan, the reporting process is less clear, and as it relates to non-DoD PSCs more problematic. While the requirements set forth by Congress apply to PSCs in Afghanistan, they have not been implemented by non-DoD PSCs because as of May of this year implementing instructions had not been issued. As a result, USAID/Afghanistan does not require implementing partners to report serious incidents and thus, there is no assurance that its reports are complete or reliable.
Investigation Process for Serious Incidents Need Improvement. In 2009, SIGIR found that DoD's investigation process for the most serious of incidents - those involving death, serious injury, or property damage over $10,000 - was not working as required. It found the Armed Contractor Oversight Branch (ACOB) - the DoD unit in Iraq responsible for ensuring all serious incidents recorded are reviewed and, when necessary, investigated and remediated - tracked less than half of the most serious incidents that required a formal investigation. For example, SIGIR found ACOB did not have a record of 5 incidents involving weapons discharge in which at least 1 of the incidents required an army investigation because of loss of life. Moreover, it found ACOB did not have the required supporting documentation in its database for 51% of the incidents involving weapons discharges. Therefore, SIGIR could not verify actions taken to investigate and remediate those incidents. SIGIR's 2009 findings highlight troubling weaknesses in the serious incident investigation process in Iraq. Similar review of DoS's serious incident investigation process in Iraq was not conducted. Nor has there been a similar audit conducted in Afghanistan.
Agencies Have Little to No Oversight of Subcontractors. The recent June 2010 House Committee on Oversight and Governmental Reform report on private contractors in Afghanistan made clear that U.S. agencies have little to no oversight over its subcontractors. This was echoed earlier this year at a Senate Armed Services Committee hearing on Paravant subcontractors in which Paravant subcontract employees were alleged to have killed Afghan civilians. Finally, the CWC in its June 2009 interim report highlighted the lack of oversight over subcontractors as an issue of concern. The Special Inspector General for Afghanistan Reconstruction (SIGAR) testified before the CWC that "the U.S. government has difficulty identifying and monitoring second and third tier subcontractors that are Afghan or third-country-owned businesses. Multi-tiered subcontracting is problematic and results in weak oversight, control and ac 77
The Senate Armed Services Committee included additional provisions in the National Defense Authorization Act of Fiscal Year 2011 to provide new measures to hold contractors accountable for any failure by their employees or subcontractors to comply with the requirements of law or regulation, or with directives from combatant commanders of oversight and accountability.
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