It is common to complain that the while the use of private military contractors (PMC) has grown rapidly in the past decade, the legal apparatus to hold them accountable has failed to keep pace. But that is not as true as it once was. In fact, there are at least four distinct sources of criminal law that can hold contractors accountable for their actions: (1) international law, (2) host-nation law, (3) U.S. civilian law, and (4) U.S. military law. Of course, all of these have their own limitations and problems, such as jurisdiction and applicability.
But military law, at least for the U.S., the world's biggest consumer of PMC services, military law shows increased promise. Specifically, that option is the Uniform Code of Military Justice ("UCMJ"), which underwent a significant jurisdictional expansion in 2007. Prior to then, the UCMJ had applied to persons serving with or accompanying an armed force in the field during "times of war," which had been interpreted to mean a congressionally declared war. Because Congress had not declared war in over sixty-five years, the UCMJ had been an ineffective tool for prosecuting PMCs.
However, Congress "clarified" the UCMJ by making it applicable to persons serving with or accompanying an armed force in the field during a "declared war or a contingency operation." With the addition of these five words and little legislative history, Congress revived the constitutionality question of subjecting civilians to military jurisdiction.
Whether the UCMJ will ultimately be useful unknown as no case involving a UCMJ prosecution of a PMC has yet reached the Supreme Court.
But a law journal article published earlier this year details some benefits. Katherin J. Chapman wrote a note in the May 2010 issue of the Vanderbilt Law Review.
Looking at the advantages of the UCMJ over forms of criminal law in terms of dealing with contractors involved in the Nissour Square killings of Iraqi civilians in 2007 in downtown Baghdad, she writes:
The UCMJ should supply the criminal law for PMCs because it avoids the implementation pitfalls and unfairness presented by the other three potential sources. First, there would be little practical difficulty in securing evidence and witnesses for the proceedings. The investigative unit would already be on the scene because the military would be present in the area. For example, on Bloody Sunday, the military arrived at Nissour Square within twenty-five minutes. Similarly, there would be no concern over whether the courts are operating properly and without anti-American sentiment since the trials would occur in functioning U.S. military courts. Third, it is unlikely that there would be a lack of prosecutorial motivation because military personnel would want to ensure that contractors were held criminally accountable for strategic reasons. In modern counterinsurgency operations, much of the battle lies in winning over the local populace. For many of the inhabitants, PMCs are indistinguishable from the U.S. military, and their actions are attributed to U.S. forces. As the ones who bear the brunt of any local backlash, high-level military personnel would likely be diligent in bringing contractors who commit crimes to justice.
Fourth, the UCMJ provides equitable benefits because it would apply equally to all quasi-military PMCs. That is, these PMCs would face the same criminal sanctions under the UCMJ regardless of their nationality, place of employment, or pay. Finally, for those soldiers who perform quintessentially military roles on the battlefield, it is logical to hold them to the same standards as those military personnel that they operate alongside. It would be inequitable and unfair to allow these contractors to escape criminal charges for their actions while holding their military companions criminally accountable.
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