05/17/2010 05:12 am ET Updated May 25, 2011

Law and the Private Armies You Can Afford

Over the years I have read at least a hundred full fledged law journal articles on legal issues relevant to private military security contractors (PMC). Toss in other periodical literature on legal issues the number increases by hundreds. Mostly these are what you would expect; dense legalese that is mind numbingly, eye glazing, boring, and unreadable, without large amounts of coffee or other stimulants.

But that is not to say they are without value. It is a hallmark of the "industry" as its advocates like to call it, that so many of the legal standards and laws (Geneva Conventions, Montreux Document, which are supposed to regulate PMC, remain hotly contested and fiercely argued. While that is, of course, good news for lawyers, who chalk up thousands of billable hours, representing firms like Xe Services (formerly Blackwater), DynCorp, and a host of others, it leaves everyone else who is impacted by such firms' activities in a vulnerable position.

Sometimes it takes someone who is not yet a practicing lawyer, as in a law student, to see the forest for the trees. Thus consider what Adam Ebrahim writes in the spring 2010 issue of the Boston University International Law Journal.

In his article "Going to War with the Army You Can Afford: The United States, International Law and Private Military Industry" he notes:

While addressing soldiers stationed at a remote military camp in Iraq in the fall of 2004, then Secretary of Defense Donald Rumsfeld remarked infamously, "you go to war with the army you have, not the army you might want or wish to have at a later time." In reality, the United States and other economically developed nations go to war not just with the armies they have, but with the private armies they can afford. Private military companies ("PMCs," also referred to as "private military firms," "private security contractors," and other like titles) play an unquestionably prominent role in the twenty-first century military apparatus, offering logistical support, strategic consulting, and frontline combat operations. The modern world dictates that states, individuals, corporations, and international organizations need military security around the globe, and private companies appear ready to meet this task.


As the private military industry thrives, domestic and international law struggles to keep pace. States, including the United States, have passed laws to regulate the industry, but domestic legislation faces jurisdictional and administrative problems in affecting the behavior of an industry that operates transnationally. International law in the twentieth-century reflected both public condemnation and government indifference by the western powers, resulting in an ill-defined legal regime that undercut [*184] mercenary activity in certain limited situations. n12 Yet the international legal regime, namely that propagated by the United Nations, neither responds to the frequency, scope, and conduct of present-day PMCs, nor addresses the distinctions between mercenaries and the modern industry.

Like all law journal articles his is wordy, 20685 words to be exact, so I won't quote extensively but his conclusion is that PMCs will take on an expanded role in future military operations, governed by domestic law.

The problem with that is that, thus far, there have been numerous problems in both passing and implementing domestic laws. It wasn't until just the past few years that the U.S. Congress began passing new laws and modifying old ones. Some of these, such as the modifications to the Military Extraterritorial Jurisdiction Act or the Uniform Code of Military Justice to deal with PMC, have yet to be tested all the way up to the Supreme Court, and there is reason to believe that at least the latter won't survive that challenge. Also, these and other laws have yet to receive the proper resources, meaning people and money, to implement them. Given that some of these laws potentially require investigation and prosecution by a district attorney, who may not be inclined and certainly won't have the money to spend on investigation, and, if required, prosecution, it is easy to see just one problem with the domestic legal approach.

Even with stronger, more settled law the issue will hardly be finished. As Ebrahim notes, "As important as the recent Nisour Square charges may be, political will, legal ambiguity,
judicial resources, and evidentiary problems make criminal prosecution of PMCs difficult."

While I think that Ebrahim sounds like various PMC trade associations when he writes "Although far from complete, the evolution of U.S. law presents an increasingly coherent framework through which to regulate PMC conduct and hold PMC personnel accountable." he is absolutely correct when he says "In contrast to the developments in domestic law, international treaties and conventions have yet to see a similar progression and continue to apply to an outdated model of mercenary usage."