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The Legal Ambiguity Surrounding Private Military Companies

Updated: Feb 9, 2021


The Lack of Regulation and Responsibility

A legal loophole is continuing to allow private civilian soldiers to commit horrendous crimes without being held accountable despite their employees being paid millions of dollars by legitimate governments to send them into battle. This has come as a result of wider trends regarding the privatisation of typical state-based services, as governments have begun to outsource their own security and military power to Private Military Companies (PMCs). The proliferation of these PMCs throughout the world has come under scrutiny in recent years, as several incidents have highlighted how PMCs can exist outside the boundaries of domestic and international laws that regulate the behaviour of state defence forces.

PMCs came to the forefront of the international legal community in December 2018 when a former guard of Blackwater, an American security company, was found guilty of first-degree murder by a federal American jury. This conviction came twelve years after the Nisour Square Massacre in Iraq where 17 civilians were killed. Before we delve into this case, we need to determine what PMCs actually are and consider the consequences of their existence in an unregulated market.

PMCs are agencies employed by government forces to undertake security work that the state is unable or does not want to do itself. These companies and their employees are paid lucrative amounts of money to operate as independent and private security contractors. However, PMCs operate in a legal vacuum. These companies are often given immunity by the state with which they are operating, have no legal responsibilities to the foreign government which enlists their services, nor is the company responsible to the country in which it is registered. Essentially, PMCs are only responsible to their shareholders. This opens up the gateways for a lack of accountability in the event of criminal actions committed by PMCs. PMCs exist in a void of legal authority, with little consequences for the actions of the individuals employed, along with the company that employs them.

Some may argue that PMCs are actually modern-day mercenaries and therefore are bound by the rules of engagement under the 1977 Additional Protocol to the Geneva Convention. Article 47 states that mercenaries are allowed to be neither combatants nor prisoners of war. However, PMCs will argue that they are not mercenaries and that they have a much broader involvement in conflict. They will claim that they are not in direct hostilities and in the event that they do engage in warfare, it is only defensive actions. If this is true, there is no law directly governing the actions of PMCs. No mechanism exists within the actual PMCs to punish for any crimes committed by individual employees beyond an internal investigation and dissolution of employment. Conversely, individual defence personnel, who essentially complete the same jobs, will face the military justice system if they commit similar crimes.

Iraq, The Privatised War

PMCs were extensively used by foreign governments throughout the Iraq War, forming the second largest foreign contingent on the ground after the United States defence force. However PMCs lack genuine accountability for their actions, due to the nature of the system with which they operate. This was seen in the punishment, or lack thereof, given to individual security guards involved in the torture and abuse of prisoners at Abu Ghraib during the Iraq War. In 2004 a series of photographs documenting significant human rights abuse by both American government forces and PMCs at the Abu Ghraib prison in Iraq, came to light. While the private contractors involved were granted qualified immunity, eleven American defence personnel were convicted in courts-martial, sentenced to military prison and dishonourably discharged, while various other individuals – largely of higher rank – were reprimanded and demoted. The consequences for individuals involved in the Abu Ghraib human rights abuses highlights the disparities that exists between government and private security forces, and subsequently indicates that more needs to be done to regulate the use of PMCs.

Blackwater Conviction, the First of Many?

Blackwater received more than US$2 billion under contracts with the US Government for their work in Iraq, Afghanistan and other locations. Blackwater was, however, involved in the infamous Nisour Massacre which resulted serious questions regarding the legitimacy of PMCs operating in war zones and further complicated the relationship with American and Iraqi authorities. In September 2007, Blackwater security contractors opened fire on civilians, allegedly without provocation, when escorting a diplomatic convoy through Nisour Square. The individual security guards involved could not, however, be prosecuted in Iraq due to the nature of their employment and immunity given to PMCs, consequently raising questions regarding the accountability of PMCs and the regulation of the privatisation of war.

Th extensive media coverage and public attention afforded to the Nisour Square Massacre subsequently resulted in the American legal system pursuing the individuals involved. Four former Blackwater employees faced prosecution for their involvement in the Massacre. Nicholas Slatten, who fired the first shots, was initially convicted of murder in 2014 in the US and received a life sentence. However, an American federal appeal court in 2017 ordered a new trial for Slatten and threw out the 30-year prison sentences for the three others convicted of voluntarily manslaughter and using a machine gun to carry out a violent crime. In December of 2018, more than 12 years after the massacre, Slatten was eventually found guilty of first-degree murder. This concluded a messy period of which the conviction at an initial trial was thrown out, and the second trial saw the jury unable to reach a unanimous verdict. The three other former Blackwater security guards are currently awaiting a resentence as part of the appeals process stemming from the 2014 trial.

The most recent conviction is the first of its kind, indicating that PMCs are not beyond the law. However, the trial which initially began during the Bush administration and finished during the Trump presidency has been arduous and time-consuming in its pursuit of justice. One can only hope that the lengthy period of this case does not deter domestic judicial systems from pursuing justice for crimes committed by PMCs.

Do PMCs Still Exist Today?

Blackwater has since rebranded to Xe Services, and more recently Academi, but is essentially still the same company. They offer the same services, with the same lack of regulation; and still receive contracts from various governments. While media coverage of PMCs has decreased since the withdrawal of the US from Iraq in 2011, the privatised defence industry still remains an integral element of international security. Following Donald Trump’s election as the United States, share prices of military and intelligence contractors has increased significantly. PMCs still remain responsible to their shareholders, rather than a particular government or electorate, and as result, have been accused of war profiteering.

Australia too employs the services of PMCs, with the official Australian Army website stating that the “Defence Force is increasingly reliant on PMC for support during operations.” Between 2009 and 2014 the Australian government spent more than $180 million on procuring the services of private security companies. The prevalence of PMCs in Australia came to national attention earlier this year when it was revealed that the Australian government had awarded a $420 million, two-year security contract of Manus Island to Paladin Group. This relatively unknow company was registered to a small beach property on Kangaroo Island and listed its address to a PO Box in Singapore at the time the contract was award. Paladin has since relocated its offices to Canberra and transferred its shares from one holding company to another, raising questions regarding the lack of legitimate operations of this company. Paladin is not required the same level of transparency that would be required of the Home Affairs Department, if it were undertaking the same services. The lack of legitimacy of Paladin has subsequently raised issues regarding the accountability, transparency and regulation of PMCs that operate within Australia and on behalf of the Australian government. Despite this media scrutiny, Paladin Group remain in contract with the Australian government.

The legal vacuum in which PMCs operate threatens to create a dangerous precedent regarding accountability and regulations of military and security forces. The conviction of the Blackwater security guard provides some hope that PMCs can and will be held responsible for their actions.

Governments need to ensure that PMCs are held to the same standards as government security forces, preventing the legal loophole which currently allows PMCs to get away with murder.

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