03/07/2012 10:45 am ET Updated May 07, 2012

I Have a Dream: An International Legal Treaty

It's time for another look at the nexus of private military and security contracting and the exciting world of international law. Well, okay, perhaps it is not that exciting, but when it comes to the issue of guys who carry guns, it is extremely necessary.

In the past I've written about the strengths and weaknesses of various legal and regulatory private military and security contractors (PMSC). Some have focused on national legislation -- think revisions to the Military Extraterritorial Jurisdiction Act and the Uniform Code of Military Justice in the United States -- others champion voluntary international arrangements such as the Montreux Document or the International Code of Conduct for Private Security Providers.

But almost nobody talks about an international treaty for PMSC. That is understandable, given that drafting a treaty global in scope -- let alone getting the requisite number of states to sign and ratify such a treaty -- is generally a long drawn affair, requiring either lots of political will, at least among a small number of determined states. Such happened with the Ottawa Treaty banning dumb anti-personnel landmines, or a wave of popular support among the people of the world. And it seems unlikely that with everything else people in the world have to deal with nowadays that will ever be high on the agenda.

Still, it is not impossible. After all, the Geneva Conventions were modified in Additional Protocol I to address the issue of mercenaries. And no, I am not saying PMSC are mercenaries.

Still, one can only speculate on what an international legal treaty might look like. Fortunately, we don't have to as someone else has speculated for us. That would be Huma T. Yasin, a master of law candidate at the Southern Methodist University School of Law.

Last year an article she wrote, "Playing Catch-Up: Proposing The Creation Of Status-Based Regulations To Bring Private Military Contractor Firms Within The Purview Of International And Domestic Law" was published in the Emory International Law Review.

Why is this important you ask? After all, the law is ambiguous on lots of issues. As they say the only certainties are death and taxes. What's the big deal?

According to Yasin there is actually another certainty, that "The only existing legal certainty is that PCMFs (privately contracted military firm (PCMF) -- Hurray, yet another acronym!) are not state-based military actors." This is important because:

Without according legal status to PCMFs, no coherent framework exists to analyze a host of legal issues, including, but not limited to, the following: which sovereigns can exercise jurisdiction to prosecute claims by or against PCMFs (criminal or civil); the liability of contracting states for transgressions committed by PCMFs; what body of law should govern wrongful conduct involving PCMFs; and lastly, whether any legal protections extend to PMCFs

The first part of her article explains why both existing international law and national laws are inadequate as a regulatory framework for PCMF.

Before getting to her vision of how an international legal regime might operate though allow me to quote her observation on the utility of the marketplace to regulate itself, the Joe Isuzu-like "Just trust me" approach that many in the industry naturally favor, as almost all industries do. She writes:

Because traditional market forces do not govern PCMF contracts, it is difficult to fathom how the market will be capable of providing a reliable check or regulatory function. To further evidence this unfortunate truth, one need not look further than three glaring examples of how market regulations fail to provide accountability in the PCMF context. First, despite CACI's direct and proven involvement in the Abu Ghraib scandal, the government not only failed to revoke CACI's original contract, but actually extended the contract. Furthermore, in March of 2010, CACI was awarded a $588 million indefinite delivery and indefinite quantity contract to support the U.S. Navy's Space and Naval Warfare Systems Command's command and control operations. Between 2004 and 2010, CACI was also awarded several multi-million dollar contracts with the U.S. military and other federal government branches. Second, following the Nisour Square shootings in 2007, the State Department announced it was renewing its contract with Blackwater for an additional year in 2008, despite strong objections from the Iraqi government. However, because the Iraqi government denied Blackwater a license to operate as a contractor company, the U.S. government decided not to renew the contract after its expiration in May of 2009. It is important to note that the decision to allow the contract to expire was out of respect for Iraq's sovereignty, as contrasted with market forces effectuating regulations. This is clear, as Blackwater is likely to receive another multi-million dollar contract in Afghanistan. Third, despite repeated allegations of fraud and abuse -- including a lawsuit filed by the U.S. government alleging overcharges and negligence in the treatment of water and the installation of electrical systems, which resulted in the electrocution and death of two U.S. servicemen -- the government awarded KBR a $2.8 billion contract for support work in Iraq in March of 2010. The facts are indisputable: Market forces are simply ineffective to provide a regulatory function and are completely incapable of providing accountability, "excessive use of private contractors erodes checks and balances, and it substitutes market transactions, controlled by the executive branch, for traditional political mechanisms of accountability."

Yasin favors the creation of a comprehensive multilateral treaty that defines the status of PCMFs, delineates jurisdiction, and provides for mandatory domestic enforcement in response to any violations of the treaty norms that occur.

Building on an approach first proposed by Peter Singer of the Brookings Institution, who proposed the creation of a public international body (PIB), "formed under the auspices of the U.N. Secretary General's Special Rapporteur on Mercenarism" she writes that the PIB could be created by formulating a multilateral treaty with a self-executing mechanism in signatory states.

She would like to see the PIB led by a task force that includes members from all of the various stakeholders: state actors, human rights NGOs, PCMFs themselves, as well as experts on international human rights law and humanitarian laws.

The task force would be responsible for:

• Creating status-based categories defining the type of PCMF.
• Determining codes of acceptable conduct, accountability, and protection relative to ascribed status.
• Registering, auditing, and providing ongoing oversight of PCMF activities.
• Providing a mandatory requirement for contracting states to prosecute PCMFs in cases of misconduct.

One of the nice things about her approach is that she broadens the scope of what firms ought to be included. Traditionally, the definition is binary -- either shooters or people doing logistics. It's the difference between Blackwater and KBR.

But she sees at least six categories:

Military Provider Firm: A firm that provides direct engagement in armed conflict between states or non-state actors, supplies weaponry or utilizes weaponry supplied by the employer, and is physically present and actively combating in warfare.

Military Security Defense Firm: A firm that provides security and defense of structures, vehicles (air, land, and sea), or persons, has access to or is required to carry firearms, and in furtherance of these duties, has a reasonable expectation of utilizing firearms, ammunition, or other weaponry in defense of the mission.

Military Intelligence Firm: A firm that procures intelligence through direct or indirect interrogation, aerial or ground surveillance, or decoding and analyzing data.

Military Consultant Firm: A firm that provides advice, expertise, analysis directly related to offensive strategy or defensive security covering intelligence, combat, or security (among other things), including both consultative and physical training and support, and is not physically present in the implementation thereof.

Military Logistics Firm: A firm that provides logistical support including, but not limited to, transportation, cargo delivery, and supply delivery, in support of military or peacekeeping operations, but is not directly engaged in these operations, and is on reasonable notice of potential lethal attacks or conflict-related violence.

Military Support Firm: A firm that provides ancillary support to the client's mission including, but not limited to, construction, overall maintenance of facilities, and dining, with no reasonable notice of being subject to conflict-related violence.

She also lays out some bright shining lines on what should and shouldn't be permissible in terms of auditing and oversight of PCF; something that not many others have done. For example:

The PIB must require any company falling within the broad definition of a PCMF to register the corporation as such. If a company fails to register itself as a PCMF and attempts to perform in that capacity, there should be a presumptive violation of the treaty's provisions. Furthermore, the contracting client should be held equally liable for contracting with an unregistered PCMF. Registration must include the names of the CEO, COO, Board of Directors, and all other material positions. This will allow the PIB to properly vet any industry insider and guarantee that the PCMF is a legitimate corporation that respects human rights. Additionally, vetting will prevent a corporation that has been barred from performing any PCMF activities from simply changing its name or reincorporating in a different state to rebrand itself. This registration process will ensure a heightened level of transparency and accountability. The registration information must include a detailed description of the services the corporation is offering in the global PCMF market. Obviously, the PCMF cannot provide a comprehensive and thorough description of every service, given that this may impinge upon trade secrets or reduce competitive advantage. Nonetheless, the corporation should describe its services and request assignment to the corresponding category. If the PCMF wishes to exceed its scope, it must file an amendment to the registration. Without an amendment, a PCMF performing duties without requisite authorization will be penalized and potentially risk losing its privilege to perform as a PCMF.

She also addresses enforcement mechanisms, something most other approaches stumble over, calling for mandatory domestic prosecution and civil remedies for PCMF misconduct by prosecuting states.

Thus, analogous to the United States incorporating the laws of war and human rights in the UCMJ, Congress must also pass statutes incorporating the treaty's provision into domestic law. While some have suggested amending the MEJA, it would be more prudent to create a statute specifically for PCMFs, providing the industry ample notice for potential prosecutions.

For the United States she thinks Congress should pass a criminal and civil jurisdictional vehicle to comprehensively cover all PCMF behavior where the United States is the contracting state or where the PCMF is a registered corporation in the United States.

At this point a state may ask, what's in it for me? Good question. The even better answer is:

First, the codification of statuses, rights, and liabilities stemming from the enactment will provide a marketplace with both notice and certainty. Second, states will be assured that they are contracting with a legitimate corporation for legitimate ends. As such, states may contract freely with registered PCMFs without risking liability under doctrines of state responsibility. This relieves states of the significant onus of continued oversight and regulation over companies. The value of this effect cannot be overstated -- if states are outsourcing primarily for market efficiencies, but have to perform an ongoing regulatory function, the value of this efficiency decreases substantially. Absent the regulatory mechanism of the PIB, a state arguably has an affirmative responsibility to ensure that the PCMF with which it is contracting is performing its contract in accordance with international law. States require a high ethical code of conduct from their militaries -- if states employ PCMFs as military gap-fillers, then states should expect a corresponding level of ethical and legal compliance. With the PIB performing the regulatory and oversight procedures, the state can contract with clean hands, without having to maintain oversight -- and remaining free of liability if the PCMF does in fact violate international law...