08/29/2010 11:09 pm ET Updated May 25, 2011

Taking the Private out of PMC

The most important word in the phrase private security contractors is "private." If and when someone working for a PSC does something wrong the company, depending on the offense, may very well fine him, ship him home, and fire him. But they will do nothing more. They can't, as they rightfully point out, because they are, after all, a private company and processes like arrests, prosecutions, convictions and incarceration are something the state reserves to itself. Well, okay, not necessarily incarcerations, as anyone familiar with the Corrections Corporation of America will know, and I'll skip over the obvious old joke about the best legal defense money can buy, but that is another story.

A classic example of this happened back in December 2006 when an off-duty Blackwater employee, Andrew J. Moonen, who had been drinking heavily, tried to make his way into the "Little Venice" section of the Green Zone, which houses many senior members of the Iraqi government. He was stopped by Iraqi bodyguards for Adil Abdul-Mahdi,the country's Shi'ite vice president, and shot one of the Iraqis. Officials say the bodyguard died at the scene. Although Mahdi wanted the man turned over to the Iraqi government, that did not happen.

Blackwater fired the contractor and fined him $14,697--the total of his back pay, a scheduled bonus, and the cost of his plane ticket home.

However, less than two months later he was hired by another private contractor, Combat Support Associates (CSA),to work in Kuwait, where he worked from February to August of 2007. Because the State Department and Blackwater kept the incident quiet and out of Moonen's personnel records, CSA was unaware of the December incident when it hired Moonen.

Blackwater subsequently acknowledged that the guard had done wrong but said there was little Blackwater could do about it.

As Erik Prince of Blackwater said in a congressional hearing:

PRINCE:(From tape) Look, I'm not going to make any apologies for what he did. He clearly violated our policies . . . we fired him, we fined him, but we as a private organization can't do any more. We can't flog him, we can't incarcerate him. That's up to the Justice Department. We are not empowered to enforce U.S. law.

Nine months later a congressional report revealed that the guard was so drunk after fleeing the shooting that another group of guards took away the loaded pistol he was fumbling with. Furthermore, the acting ambassador at the United States Embassy in Baghdad suggested that Blackwater apologize for the shooting and pay the dead Iraqi man's family $250,000, lest the Iraqi government bar Blackwater from working there. According to the report, Blackwater eventually paid the family $15,000 after an embassy diplomatic security official complained that the "crazy sums" proposed by the ambassador could encourage Iraqis to try to "get killed by our guys to financially guarantee their family's future.

Now it is true that PSC and private military contractors have to act, at least theoretically, in accordance with all sorts of laws both nationally and internationally, as well as regulations and directives from government departments (State and Defense in the case of the United States) as well as lots of contract language spelled out in the Federal Acquisition Regulations (FAR) and Defense Federal Acquisition Regulations (DFAR)

Still, without the political will of the United States to act there can be no individual criminal accountability. This, as it happens is the point made in a law journal article published earlier this year. Specifically, the article by Amanda Tarzwell, published in the Spring 2009 issue of the Oregon Review of International Law. Note: Hurray for the U of O; now I feel better about having obtained my B.A. there.

In her article "In Search of Accountability: Attributing the Conduct of Private Security Contractors to the United States Under the Doctrine of State Responsibility" Ms. Tarzwell offers an alternative means of analyzing the unlawful conduct of PSCs: the doctrine of state responsibility.

As opposed to individual criminal responsibility, the doctrine of state responsibility holds a state accountable to another state. The doctrine dictates that "[e]very internationally wrongful act [IWA] of a State entails the international responsibility of that State." In 2001, the International Law Commission (ILC) adopted the Articles on the Responsibility of States for Internationally Wrongful Acts (Articles), representing the culmination of more than forty years of work on the issue. Although the Articles were never formally adopted in treaty form, they are largely a codification of customary international law regarding state responsibility.

There are potentially two legal tests for measuring attribution of a private individual or group: the overall control test applied in Military and Paramilitary Activities in and Against Nicaragua, and the effective control test set forth in Prosecutor v. Tadić. Research suggests that the overall control test offers the only viable means of attaching liability to the United States for the unlawful conduct of PSCs. By applying the overall control test, the unlawful conduct of PSCs in Iraq is attributable to the United States, and thereby invokes U.S. responsibility to Iraq.

It doesn't take a rocket scientist to see why this is very important. If a state was faced with the prospect that all of a sudden the rest of the world was going to find it responsible and culpable for wrongdoings by PSC headquartered in its country one can bet that the current woeful state of government oversight of PSC would magically improve at warp speed.

The alternative in her view, is:

Without a strong legal basis for attributing such conduct to the state, countries will continue to outsource their dirty work with impunity. However, if a state can be held legally responsible for the unlawful conduct of PSCs, any incentive to use PSCs for illegal purposes is effectively eliminated. In the same way that the doctrine of respondeat superior provides a powerful financial incentive for corporations to behave, the doctrine of state responsibility can serve a similar function on the international level.

Although Tarzwell is writing about PSC in Iraq her analysis is relevant to any situation in which states employ private actors to operate outside the law.

She notes

the overall control test requires that the state wield "overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity." In terms of equipping PSCs, Army Field Manual 3-100.21 makes reference to providing assistance in a number of areas including: uniforms, equipment, transportation, medical treatment, religious practice, and mortuary affairs. As for financing, the state is wholly financing these PSCs by contracting with them directly. One could further argue that the state finances PSCs by having provided the training and evaluation to its personnel while they were soldiers within the national military.

That last point, by the way, can only be considered ironic as PSC advocates always argue that the fact that most of their personnel are experienced ex-military personnel is indicative of their high quality and reliability.

She also notes:

The overall control test also requires evidence that the state provided help in organizing, coordinating, or planning the group's military activities. The most obvious proof of this is the contract between the United States and the PSC. As discussed earlier, the entire purpose of the contract is to provide support to a requesting military unit. Thus, the terms and conditions of the contract, which reflect the needs of the military, dictate the PSC's activities. By performing the contract, the PSC has allowed the state to help organize, coordinate, and plan its military activities. Consequently it is not the military commanders per se who exercise control over PSC personnel, but the government officials writing and enforcing these contracts. Accordingly, applying the overall control test, the violations of the principle of distinction by PSC personnel in Iraq are attributable to the U.S. government and therefore engage the state's responsibility.