Table of Contents
Private security industry emerged and blurred any differences between public and private security firms, with the federal and state governments no longer being the only bodies to solve conflicts. Many private security firms (PSCs) have managed to enter war zones through their lucrative military contracts globally. PSCs provide essential military services with unique political benefits, making them favourable compared to the U.S military activities in Iraq and Afghanistan. Despite PSCs growing in influence, the U.S government is yet to develop a proper legal framework to ensure the private companies are accountable, transparent and are well regulated particularly abroad. According to Carmola (2014), the U.S government has come up with new regulation models by encouraging professionalism among PSCs to abide by global standards, to enhance legitimacy and support clarity in the security defence industry; this is geared towards enhancing potential victims’ rights.
To understand accountability in private security firms, Blackwater Company could be cited as a perfect example. In September 2007, security guards employed by Blackwater from the U.S fired in a Baghdad crowd at Nisour Square, killing 17 Iraqi nationals. During that time, the U.S Security Department had contracted Blackwater to offer security to the U.S diplomats in Iraq. The incident triggered increased controversy globally on which law the company used to shoot the civilians. It caused many to question the actions taken by PSCs, and their accountability when operating under the domestic or international law. The incident highlighted the level that America uses services from private security companies to offer military services for overseas operations such as feeding troops, maintaining the weapons, doing interrogations and offering diplomats security. For instance, there are over 130,000 PSCs in Iraq, with over 30,000 engaged in direct combat (Carmola, 2010). The number represents a ratio of 1:1 with the U.S Military Force in Iraq.
America’s extensive use of private security contractors has raised many issues; they include issues such as whether such firms could be held legally accountable for torts or crimes committed. Contrary to the belief that PSCs work in a legal void, they are under legal rules, both domestic and international. The only issue includes the uneven frameworks that lack the necessary solidarity. However, it does not mean an absence of a legal architecture, but just the need to utilise it in a robust manner in future to avoid abuse of power by the PSCs. Pertinent laws to govern them have been evident, but only in theory, and never applied practically. As such, the PCSs have failed to follow the domestic and international laws. In other words, an uncertain boundary causes increased conflicts and lack of accountability. It is, for that reason, necessary to understand the difference between accountability in practice and theory, as they relate to the PSCs. It is essential for the necessary authorities to ensure that PSCs are accountable when operating under domestic and international laws, something that has presented a major challenge for U.S. federal government. The solution includes analysing loopholes critically in current regulations that ensure accountability of US-based private security companies. Finally, it is essential to provide solutions on matters regulation and accountability about the global expansion of the private security market.
Accountability in Theory and Practice
The ambiguity in private security industry has major implications for foreign policies and laws applying to the market. The U.S government has failed to identify and classify PSCs, making the issue of accountability difficult. The military service aggregation has introduced PSCs in unique roles such as martial, company and criminal laws. Private security companies have civilian contractors that work for companies engaged in military activities. Maffai (2008, p. 1095) asserted the companies have come up with accountability theories that include unwritten laws referred to as “Big Boy Rules.” The laws are unwritten and encourage self-policing, leading to increased unaccountability as indicated by current U.S laws that try to regulate the behaviours of PSCs.
Despite the contractors working closely with the U.S military and even having the right to act forcefully defensively, the current laws between the relationship of the U.S and PSC laws remain inadequate in ensuring an effective legal accountability framework, when compared to the U.S military laws. The U.S military laws ensure practical accountability under a “Uniform Code of Military Justice,” as well as unique court-martial structures that only applies to military personnel. PSCs operate differently, with a completely different legal framework, thus the need to initiate the necessary changes to curb increased cases of misbehaviour. The firms operate under their theory of “Big Boys Rules,” with the government lacking appropriate models; this has hindered the federal and state governments from solving challenges of lawlessness committed by the PSCs (Carmola, 2010, p. 39).
How the U.S responds to PSCs Misconduct
To understand the difference between accountability in theory and practice, it would be essential to discern the actions taken by the government towards misbehaving PSCs. Currently, the available regulations are weak and only in theory. Some of the laws used include the “Special Maritime and Territorial Jurisdiction Act” (SMTH), as well as the Patriot Act. From the two Acts, it is apparent that the main issues in developing a legal structure to control private security behaviours include extraterritoriality. Extraterritoriality involves a mechanism of applying US laws against crimes committed in a foreign land. US federal state indicates the procedures to follow in case of misconduct. In most cases, practical implementation of the procedures has failed to meet international standards, laws of the host country, as well as the constitution of the U.S (Groth, 2012).
According to Del Prado (2008), legal experts approach the issue of private security contractor misbehaviour abroad using domestic laws that give America federal jurisdiction outside the country like SMTJ and Patriot Acts. Under SMJT, the private contractors have U.S federal jurisdiction over the water vessel, citizen or even the company under the U.S’s federal laws. It also applies to any land that America has acquired exclusively under the concurrent jurisdiction (Higate, 2012). SMTJ offers the federal state extraterritorial jurisdiction over PSCs operating abroad in locations secured purely for use by America. Conventionally, the Patriot Act further amends SMTJ by including premises of U.S diplomats, military, any government mission, foreign entities, as well as the consular. It means that all the district courts have the jurisdiction to try even crimes committed by Americans or against U.S citizens within the properties of the U.S. The Patriot Act increase the jurisdiction on a wider scale of the indicated regions like embassies and military base.
Due to the increased cases of misbehaviour from PSCs, the U.S government responded through the development of Military Extraterritorial Jurisdiction Act (MEJA). According to Maggai (2008), MEJA served the purpose of applying extraterritorial jurisdiction on specific locations and property over civilians that accompany the U.S military abroad. MEJA developed a legal framework to try civilian contractors in a foreign land in their federal courts for punishable felonies attracting more than a one-year jail term. In the beginning, MEJA affected PSC employees, as well as contractors under the Department of Department (DoD). Revisions were, however, done in 2004 to include the private security contractors that enhance DoD missions (Tonkin, 2011).
According to Schulz and Yeung (2008), MEJA was developed to include a wide range of services by applying to numerous individuals. Another change included the UCMJ jurisdiction, expanded to include civilian contractors. UCMJ expanded to include court martial for civilian contractors involved in military activities abroad including Iraq, whether Congress has officially declared war or not. It means that security contractors who break the law or misbehave are legible to face trial in a military court for crimes they committed when in war. In fact, UCMJ has been amended for the legal framework that ensures the contractors remain accountable under the U.S law in regions of conflict. Despite the improvements, there is need to address the constitutionality of the Acts, as well as civil-military relations before they become effective.
The current USA and PSC regulation trying to ensure both parties remain accountable has many limitations, including a lack of accountability and transparency. Despite increased effort by the federal government to handle issues of misconduct by PSC in conflict zones, the current laws remain inadequate to have a legitimate legal structure to ensure the contractors remain accountable (Schulz & Yeung, 2008). One area of great limitation includes loopholes in the language used in U.S. laws, lacking precise definitions as to which laws specifically apply to PSCs. Another challenge includes a lack of political will to solve the issues, thereby impeding progress towards having a legal framework.
A major limitation is associated with the SMTJ and Patriot Act, which is reflected in the Triple Canopy issue. Although the U.S federal state expanded the extraterritorial jurisdiction by amending SMTJ through the Patriot Actor, the issue of misconduct continues to reoccur in combat regions. The Triple Canopy Case clearly shows that there are numerous legal, as well as pragmatic barriers limiting U.S’s ability to implement extraterritorial jurisdiction, because of lack of judicial ability to charge misconduct in the occupied foreign land during war. In the case, Jacob Washbourne shot at two Iraqi vehicles on different occasions, with the aim of killing. Jacob had been assigned shift leadership through the “Milwaukee” project, which was a taxi service launched in a war zone area that escorted PSC executives in Iraq in an armoured vehicle. He was accused of firing into an Iraqi truck, without having been provoked. There was enough evidence to prove that he was in the wrong, but the PSC executives never reported the incident, with witnesses placed on the firm’s blacklist, meaning they would never get contracts to offer security services in Iraq (Joachim & Schneiker, 2012, p. 379).
The case clearly indicates a lack of public accountability and weaknesses associated with the Patriot Act and the inability for the laws to apply to crimes committed outside the U.S’s territories. It is possible that the employees of PSCs commit crimes outside U.S’s regions, properties, and territories and in areas with less transparency and increased lawlessness where the behaviours remain ungovernable. The U.S government faces numerous restrictions that hinder the state from prosecuting crimes that happen in the theatre of conflicts, with the law being inapplicable outside America’s territorial jurisdictions. It means that if an employee under PSC commits a crime abroad, the chances of undergoing prosecution is slim.
Another limitation is included in the MEJA Act, where, since its inception, only twelve civilians have been charged (Carmola, 2010), despite the many misconduct cases abroad. An example includes the Abu Ghraib incident in prison, with many civilian contractors committing human rights crimes against Iraqis. The case shows many gaps in the legal applicability of the MEJA Act, as well as the language used. At one state, C.I.A Officials, linguists, as well as interrogation specialists, controlled the prison. The military personnel and service persons were court-martialled, but up to date, the implicated civilian contractors are yet to face prosecution. Despite the necessary evidence in forms of photographs, that proves many Titan employees tortured the prisoners, the Department of Justice (DoJ) is yet to prosecute the officials. DoJ still insists that there is no enough evidence to prosecute the civilians, indicating the increased limitations associated with extraterritorial jurisdictions that proves many restrictions and hindrances.
It, therefore, becomes hard to identify what entails true evidence. Congress tried to address the loopholes brought forth by the Abu Ghraib case by amending MEJA’s jurisdiction capacity to include all contractors, subcontractors, and workers in the federal agency, as long as they support DoD operations. However, the changes did not address the increased lack assertiveness when responding to crimes committed abroad, with DoJ lacking enough power to prosecute the civilian contractors in an effective manner (Joachim & Schneiker, 2012).
Subjects affected by Accountability
Iraqi citizens and foreigners that commit a crime in Iraq remain immune to the U.S law, in addition to many other nations besides the U.S. lacking the capacity to account for committed crimes extraterritorially. It is an indication of a weak legal structure, underdeveloped courts in Iraq as well as other conflict-ridden nations. According to Dunigan (2011, p. 17), the war-zone nations have continued to allow many crimes committed by non-U.S. citizens working for PSCs to go unpunished, as criminal jurisdiction differs across countries. Dual sovereignty has represented a major challenge to ensure any subjects misbehaving are punished for not being accountable for their actions. The issue of which country’s legislation applies to which PSCs and employees present a challenge because of the heterogeneous or diverse population of those working abroad. It means that it is hard for the U.S DoJ to prosecute employees under American PSCs. The situation has led to sparing application of the Acts, leading to few people undergoing prosecution.
For instance, out of twelve cases that proceeded to a court hearing, as well as charges, only one case prosecuted a contractor because of violent crime (Joachim & Schneiker, 2012). DoJ has the mandate to prosecute U.S civilians working overseas, but the process has been inhibited by a lack of case precedents and legal tests. Other issues include inactive responsibilities involved in the prosecution, which has hindered current PSC law application. Under the UCMJ Act, the implications of enlarging military authority and legal jurisdiction to include civilians who engage in military operations overseas have raised queries about its constitutionality. An example includes a civilian criminal case presented at the court-martial jurisdiction under the UCMJ application to a civilian security contractor (Joachim & Schneiker, 2012). Alaa Mohammad who had both Canadian and Iraqi citizenship, and working with Titan Group in Iraq, faced legal action for stabbing another contractor in the chest. He was confined for five months after pleading guilty, but Iraq and Canada refused to prosecute him. It led to DoJ declining to review the case because he was a foreign national.
Dunigan (2011) believe that Alaa Mohammad’s case brought to the fore two important issues on UCMJ’s applicability to foreigners working for the U.S’s PSCs. It begs the question whether the U.S. has the power to influence Congress to have powers to prosecute foreigners that commit crimes. Most U.S’s lawyers and DoJ remain reluctant in using UCMJ to prosecute a foreigner. The premise is supported by a precedent case cited by Mathieu and Dearden (2007) i.e. Reid v. Covert. The case held that it is unconstitutional to charge civilians in martial courts, especially for capital crimes committed when maintaining peace. It is, therefore, necessary for the courts to verify whether security contractors working in foreign countries serve with or accompany the U.S military in the field. Being employed overseas under PSC does not constitute enough threshold for one to be prosecuted in a court-martial. Based on Reid v. Covert, Congress defined the sentence of “serving with or accompanying” to mean that civilians must have a direct connection or dependent upon the military and the employees. It means they should engage in daily military activities conducted by the U.S Armed forces. It also means UCMJ only applies to security contractors inherently engaged in hostile military activities contracted to combat. In other words, PSC workers consulting firms do not qualify to face prosecution in a court-martial, as their activities are non-violent (Del Prado, 2008).
According to Joachim and Schneiker (2012), any decision to expand UCMJ jurisdiction scope could be detrimental on rights of contractors working under the military but not engaged in active war. PSCs have to exhibit authoritative power in their contracts and ensure their employees are bound to their contract terms, with duties of the personnel clearly set out in the contracts. Contractors and their employees are not subjected to analogous laws. Concisely, many past incidents show a lack of accountability and oversight by the Congress.
Beginning and End of Accountability
From the discussions, it can be deduced that accountability begins and ends with the private security providers. In some instances, the federal government through the department of defence and jurisdiction lacks the powers to prosecute PSCs. It is time for the private companies to take responsibility of their employees and include punitive measures in their contracts to help curb criminal behaviours. The contracts obtained by PSCs to offer military services outside the U.S are beneficial. As such, it may be costly to the PSCs if their employees could be prosecuted for misbehaviours. Alexandra, Baker, and Caparini, (2009) assert that the Congress has the responsibility of clarifying applicable laws to ensure the protection of the involved parties. Oversight by the Congress would be imperative in preventing criminal behaviours among PSCs; those found guild ought to face prosecution (Cockayne, 2008).
Expansion of the MEJA jurisdiction scope shall help to include all contractors that cannot avoid prosecution because of the numerous loopholes. It is vital to have a universal legal standard applicable to contractors working abroad. The standard should include foreign nationals working for US-based PSCs. The federal government could strike deals with third party countries to ensure that they keep their citizens in check and accountable. Foreign countries need to collaborate with the U.S to develop laws applicable extraterritorially. Another important consideration includes Congressional oversight to ensure all contractors remain accountable under a federal law specifically in military activities overseas where it is easier to lose transparency. Increased number of regulators and early screening before releasing PSCs to foreign nations shall go a long way to prevent the bad incidents as well.
Moreover, the executive branch can create effective methodologies to maintain transparency as well as federal oversight on PSC operations abroad. A more strict regulation on the application of force abroad is necessary to avoid civilian contractors from escaping outcomes f their actions. It, therefore, means that there is need to establish communication between Armed Forces and other legislative agencies to support one-way questioning. When the companies adhere to the set rules and regulation, it will be easier to ensure accountability, ethical, as well as social responsibility. Issues touching on human rights require a commitment by both companies and individuals to treat others with respect and integrity.
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