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Thinking Outside the Nationalist Box: PMC and International Humanitarian Law

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It may be hard to believe, given all the attention paid to the issue of legal accountability of private military contractors in recent years that there is anything left to say on the subject. From a U.S. perspective we have seen modifications of the Military Extraterritorial Jurisdiction Act and the Uniform Code of Military Justice. And since PMC is a global industry we have had the Montreux Document to describe international law as it applies to the activities of private military and security companies (PMSCs) whenever these are present in the context of an armed conflict.

But are these sufficient for an ever changing and increasingly technological complex world? It seems unlikely. Adjusting rules and regulations to reality is a never ending arms race, with lawyers and legislators rushing to follow as PMC take on new roles.

As a case in point consider the article "The Status Of Private Military Contractors Under International Humanitarian Law" published in the summer 2010 issue of the Denver Journal of International Law and Policy by Won Kidane, an Assistant Professor of Law at the Seattle University law school.

As we should all hopefully understand by now PMC undertake a variety of functions. While some of these functions would give them clear lawful status under International Humanitarian law (IHL), some functions would put them in questionable status. Still other functions towards the opposite end of the legality spectrum would put them completely at odds with the law.

Prof. Kidane offers some not so improbably hypothetical's to help illustrate the ambiguities present in IHL.

If a couple of air force military officers from India come to Bethesda, Maryland and receive training as to how to fly and use Lockheed Martin's next generation F-35 and purchase a few of these aircraft and take them with them to India, no recognizable issues of IHL would arise. However, consider the following scenario. The training takes place in India close to the Kashmir border. Pakistan shoots down one of the training aircraft and the two states get into a small-scale armed conflict. Assume further that Pakistan captures three occupants of the aircraft that was shot down: two Indian trainees and one Lockheed Martin trainer. Would all of them be considered lawful combatants and as a result entitled to prisoner of war status?

This is not as farfetched as it might sound. Consider the following real story. In 1999, when genocide was looming in Kosovo, NATO forces conducted an air attack against the Milosevic government. These attacks produced thousands of refugees and created humanitarian emergencies. Because the involvement of the United States in this conflict was not popular, the administration chose to involve the Texas-based private military contractor Brown & Roots (KBR). The company performed the following activities with efficiency: constructed temporary facilities on the ground that housed thousands of displaced persons from Kosovo; ran the supply system for U.S. forces in the area, including transportation of food and other supplies; constructed bases; and maintained vehicles and weaponry.

Given the circumstances described above, there was a real possibility that Milosevic's forces could have attacked one of the bases and captured some of KBR's personnel while maintaining some of the military equipment or transporting some of the equipment and weaponry. Had this occurred, what would have been their status under IHL? Would they have been entitled to prisoner of war status? Would they have had combatant status or would they have just been persons accompanying the armed forces? Or would they even be considered mercenaries?

Or consider this bit of Lockheed Martin advertising:

From the depths of the oceans to the far reaches of space, we serve the Department of Defense and the intelligence community with leading-edge intelligence, surveillance and reconnaissance (ISR) systems for maritime, terrestrial, airborne, and space missions. Lockheed Martin is a leader in satellite imagery and information systems, air surveillance, radar, geospatial imagery, mission management, and ground system operations. Our focus is on providing joint and multi-agency organizations with valuable, effective ISR data for a diverse set of missions ranging from precision targeting to geographic mapping.

According to Prof. Kidane:

Nothing makes the performance of these activities illegal, even in times of war. However, if the information is gathered under false pretenses, the intelligence gathering would become espionage activity. The personnel engaged in the activity would be considered spies and as such unlawful per se. As a matter of law, not even members of the armed forces or combatants are immune from such designation, as long as they collect the intelligence under false pretense.

The traditional way of collecting information under false pretense is usually wearing the enemy's uniforms and infiltrating into enemy held territories. With the advancement of technology, however, intelligence gathering could be done by civilians sitting in their offices thousands of miles away from the frontlines. For example, a civilian contractor sitting in his office in Alexandria, Virginia could hack into the software of an enemy anywhere and obtain information for the U.S. military. If the hacker obtains the information under a false pretense, he would qualify as a spy. If a "cyber-soldier" does the same, he or she would likewise be considered a spy. Such designation could only have significance if the said individuals, the civilian or the soldier, fall into the hands of the enemy anytime thereafter. If that happens, however, the law does not treat the two individuals the same way. While the civilian may be prosecuted for the crime of espionage he committed in the past, the soldier is immune from such prosecution as long as he remains a member of the armed forces or rejoins the armed forces after engaging in the said activities of espionage. In other words, a soldier can be prosecuted as a spy only if he is caught in the act or before rejoining his unit. To the contrary, once a civilian is a spy, he is always a spy, and may be prosecuted anytime for any acts of espionage committed anytime regardless of his current status.

Because of the foregoing, intelligence gathering is also an area of ambiguity that requires further reflection. Although technology based intelligence gathering would not ordinarily expose civilian contractors to danger, situations where such exposure could ensue is foreseeable. One of the KBR employees captured by Milosevic's army in the example discussed above could easily be an intelligence analyst who had engaged in cyber intelligence gathering.

There are several other illustrations but let's move on to another point.

Prof. Kidane notes that civil liability is perhaps more complicated than holding wrongdoers criminally responsible. In the U.S., there are limited avenues that victims may explore. One of the possibilities is a civil suit under the Alien Tort Claims Act ("ATCA"). ATCA grants federal courts jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." But there are several seeming obstacles to prevailing in a civil suit against a private military contractor under the ATCA. In detailing just one Prof Kidane writes:

The second obstacle is establishing a government connection. International obligations are often defined in terms of government accountability. For example, under the Convention Against Torture, acts of torture may only give rise to liability if they are committed by a public official or at the acquiescence of a public official. Consequently, to prevail under ATCA, the claimant must establish that the law of nations has been violated, and prove that there was a nexus between the injury and government conduct.

Wherever private military contractors are involved, establishing a government nexus could be very difficult. For example, would private contractors hired by the Iraqi Coalition Provisional Authority (CPA) be considered to have been hired by the U.S. government or an Iraqi government? Or was the CPA a government at all? If the CPA is not a government, it would mean that there is no civil liability for private military contractors under the circumstances.

These arguments are not hypothetical. For example, in a case against private contractor Custer Battles LLC for fraud under the False Claims Act, a U.S. federal judge set aside a jury verdict holding the company responsible for $ 10 million precisely because of the ambiguous nature of the status of the CPA during the initial years of the Iraqi invasion. The only issue in this case was the status of the CPA as a government entity and its relations with the U.S. n301 The government argued that fraudulent bills presented to the CPA could be considered to have been presented to the government of the United States because the CPA was created and financed by the United States to run Iraq and staffed by American personnel. However, despite this, the court held that the CPA was an international entity with an ambiguous status but may not be considered a part of the United States government. As such, the fraudulent documents submitted to the CPA cannot be considered to have been submitted to the United States. That meant that the private contractor was not held responsible for the fraudulent behavior despite a jury verdict determining the existence of fraudulent activities. Because this was the first test case, the ruling obviously rendered the dozens of others that were ready to be filed void ab inito [void from the outset], at least from the point of view of this particular basis of jurisdiction.

Another example that demonstrates the obstacles that the private-government distinction might create is the D.C. Circuit's June 2006 preliminary decision in Saleh v. Titan Corp. n307 In Saleh, several Iraqi nationals brought an action under the ATCA against the Titan Corporation, a private military contractor which provided interrogation and translation services in Iraq. They alleged that Titan's personnel abused the claimants in violation of the law of nations. The court essentially held that the claimants did not sufficiently demonstrate the required degree of nexus between the private actors and the government. In other words, they did not show that they were operating under official capacity or under the color of law. Ironically, throughout history, it is in these types of ambiguous situations that the services of the private military contractors are needed the most. That is an additional reason why their legal status must be properly defined and their conduct properly regulated.

Prof. Kidane concludes that those seeking to regulate PMC must in the end operate under IHL.

Private military contractors will continue to complicate the equation relating to international peace and security for the foreseeable future. As their re-emergence is a twenty-first century phenomenon, their status as a unitary entity is not directly defined by international humanitarian law whose marked development preceded the advent of the post-Cold War era proliferation of private military contractors. However, international humanitarian law defines the status of each and every person involved in and affected by warfare. When private military personnel perform war-related activities, whether in the form of the design of precision weaponry from an office in Bethesda, Maryland, or in the form of transporting ammunition in Kosovo, or chasing terrorists in Afghanistan, their status at each given moment and place is well defined under international humanitarian law. Therefore, what could be concluded about the status of private military contractors under international humanitarian law is that it depends on what they do and where, when, and how they do it. That is precisely why attempting to regulate the industry as a whole without seeking guidance from international humanitarian law is often a futile exercise.

This article has attempted to demonstrate the status of military contractors in a continuum. It highlighted not only the two extremes, the perfectly legal activities and clearly illegal activities, but also described the challenges involved in classifying certain activities, and attempted to show where the line must be drawn. As such, states that consider themselves bound by international humanitarian law should regulate the provision of military-related services by private parties using the standards set forth under international humanitarian law. The use of these standards would inevitably require a time, place, and manner regulatory regime.