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Outsourcing War and Peace: Part 2

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Here is the second of five excerpts from law professor Laura Dickinson's book, Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Find the first part here.

PMC supporters will be heartened to read her view that she does not believe the cure to more effective oversight and accountability is passage of more laws. She makes the point, which some have argued for years, that the main problem is in choosing to act, i.e., mustering the political will to do so, as opposed to finding the proper means. But insofar as means are an issue she make the case that tort law is just as effective than criminal or civil law.

If, as we have seen so far in this book, the use of private military contractors is on the rise and unlikely to be eliminated in the near future, the obvious question is: How can these contractors be regulated and restrained? Even if the kinds of abuses described above are not typical, what mechanisms of accountability might be available when such incidents do occur, and how effective are these mechanisms likely to be? Each of the next four chapters examines a different possible mechanism of accountability and constraint and assesses its efficacy. Let us begin with the most obvious such mechanism: the use of formal legal regulatory systems, either criminal or civil, to hold contractors accountable for the wrongs they commit.
This focus, in turn, leads to a new set of questions: What laws regulate these contractors? Might international or domestic law be applied to prohibit states from hiring private contractors altogether? Alternatively, assuming states do privatize, what laws exist to hold these actors in check? And finally, what accountability mechanisms can be used to enforce these laws, and how effective are they? This chapter answers these questions in ways that may be surprising to some. Contrary to the claim often made that private military contractors inhabit a virtual regulatory void, I argue that they are in fact subject to a broad legal and regulatory framework that seeks to control their behavior. To be sure, this framework has holes that need plugging. But perhaps even more important, privatization poses challenges to the organizational and institutional apparatus used to enforce existing laws and regulations. Thus, if we want to strengthen our legal and regulatory framework, we need to look beyond writing new treaties, statutes, and agency rules, and focus more attention on finding better ways to ensure that these treaties, laws, and rules have force on the ground.
To begin, it is important to recognize that international law does not pose an outright bar to the use of contractors, at least in most circumstances.7 Protocol I to the Geneva Conventions, drafted in the 1970s, does seek to punish mercenaries somewhat, by denying them prisoner-of-war status. But even this protocol defines mercenaries narrowly and elsewhere both extends protections to indigenous guerrillas and preserves the rights of foreign military forces fighting on their behalf, clearly reflecting postcolonial debate and biases regarding the use of mercenaries in struggles for liberation.
The International Convention Against the Recruitment, Use, Financing and Training of Mercenaries (drafted between 1980 and 1989) goes further, because it imposes criminal liability on mercenaries, accomplices to mercenaries, and anyone who "recruits, uses, finances, or trains" them. In addition, the convention seeks to impose an affirmative duty on states to prohibit, and perhaps prevent, mercenarism.
Nevertheless, the convention on mercenaries, like the protocol, defines "mercenary" narrowly, requiring, for example, proof that the contractor was motivated by financial rather than ideological gain. Moreover, it is significant that, even with such limitations, the treaty took quite some time (until 2001) to enter into force--when Costa Rica became the twenty-second state to ratify it--and it still does not enjoy particularly widespread support. Likewise, though some countries, such as South Africa, forbid the use of military contractors as a matter of domestic law, such provisions are not common. And, of course, none of these provisions--international or domestic--would bar the use of contractors in the foreign aid context.
Although states are therefore unlikely to be barred from privatizing altogether, both international humanitarian law and human rights law, as well as domestic criminal law and tort law, do place important limitations on contractors. And while this regulatory framework is more of an uneven latticework than a solid wall, I argue that the architecture is there, and it can potentially be used more aggressively in the future to better deter and punish abusers. On the criminal side, the problem is not so much an absence of applicable law (though there are holes that need filling) but rather the mobilization of sufficient political will to actually enforce the laws that exist by making important organizational reforms or through other means. On the civil side, although some important threshold questions remain unresolved, contractors could potentially be more subject to accountability through the tort system than are comparable governmental actors.
This chapter is divided into four parts. The first part discusses the general international humanitarian and human rights law governing the use of force and prohibiting serious human rights abuses. Here, I address the extent to which this law applies to private military and security contractors and can therefore be used to place limits on their behavior. The second part surveys domestic law potentially applicable to private military contractors, focusing primarily on the United States. The third part examines the organizational and institutional apparatus used to enforce this legal framework, and shows how privatization poses particular challenges for enforcement. The fourth part then analyzes how useful this international and domestic legal framework is actually likely to be in holding private actors to account. Using the contractor abuse story from Abu Ghraib
as an example, I discuss the various possible means of subjecting these contractors to criminal or civil actions. I conclude that, although international criminal prosecution is unlikely, the legal framework for domestic criminal prosecution is in place if U.S. government officials are willing to use it. Moreover, domestic tort suits are at least a possibility. Thus, while the mechanisms of legal accountability over contractors could certainly be improved, we should not leap to the conclusion that the mere fact of privatization eviscerates all legal oversight. To the contrary, as we shall see with regard to civil suits under ordinary domestic tort law, legal actions against contractors may sometimes have greater chances of success than similar suits against government or military actors.
This does not mean, of course, that the existing legal and regulatory framework merely requires minor adjustments in order to cope with the growing use of contractors. Rather, my argument is that, contrary to what some have suggested, and contrary to the dominant frame in the popular press, we cannot solve the accountability problem simply by enacting more federal statutes to allow for criminal prosecution of contractors. Congress has already provided a legal framework for holding contractors criminally accountable, either in civilian or in military courts, when they commit abuses--but this framework does not work. To be sure, as discussed in more detail below, there are some jurisdictional holes in the law, and Congress could, and should, address these deficiencies. But the real problem is that neither civilian nor military prosecutors have thus far done much to enforce these statutes. As we shall see, prosecutors probably could have indicted the contractors implicated at Abu Ghraib under existing law--but they did not. This failure is evidence of a lack of political will, but it also suggests an absence of the critical organizational and institutional structures necessary to foster meaningful enforcement. Thus, the point of this analysis is not to say that the legal framework is sufficient and therefore we have no problem but to say that we should not be focusing exclusively on how to solve the supposed legal gaps regarding contractors. Instead, real accountability for contractors requires organizational and institutional arrangements that would encourage enforcement and help mobilize political will: law in action is as important as the law on the books.