Free Essays - Military Essays
Iraq War Companies
Introduction
The conflict in Iraq has been referred to as the 'first privatised war', in fact, private military companies (PMCs) are now the second biggest contributor to coalition forces in Iraq after the Pentagon. Over the last few years, stories of abuses committed by PMC employees and cases of corporate frauds and scandals have emerged, fuelling the discussions over the use of private military contractors in conflict areas, a phenomenon that had previously passed largely unnoticed. However, the provision of private military services is neither something new nor exclusive to the Iraqi war. In almost two decades, the private military industry has risen and consolidated, with hundreds of firms operating in more than 50 countries worldwide. Although PMCs usage on the battlefield is now extensive, this industry remains largely unregulated.
Much of what appears in this study concerns the United States, the world's most dominant military but also the country that more than any others has become reliant on the private sector for maintaining its military capability. Similarly, extensive reference is done to the war in Iraq. This is not only because there is a greater availability of information about private military activities in Iraq, but also, and more importantly, because the Iraqi conflict is extremely valuable for understanding the PMCs phenomenon since it is the largest experiment in military outsourcing in history.
The main argument of this paper is that what is at issue is not how force is organized, that is public or private, but rather how force is regulated. Adequate forms of regulation of the private military industry are ought at both national and international level in order to ensure that public accountability and transparency is as strong as possible around PMCs activities. Effective regulation can make PMCs a useful part of a government's military arsenal and ensure that wrongdoings are punished as well as the public is kept informed about governments' decision to enter into into war and the way the war is fought.
This paper is organised as follow. Chapter 1 provides an overview of the private military industry and it also outlines the reasons for its expansion. Chapter 2 both analyses the policy dilemmas raised by the use of private contractors in conflict zones and discuss some of the policy responses that we need to develop. The conclusions follow.
Chapter 1 - Rise Of The Private Militart Industry
The Diversity of Firms, Activities and Clients
Since the early 1990s the private military industry has experienced an exceptional growth and has become an extremely lucrative business. Most of PMCs are now structured along corporate lines. The services that private military contractors provide as the clients they work for greatly vary. They have a prominent role in today war landscape as the war in Iraq clearly demonstrates.
Private Military Firms and Mercenaries
According to Max Weber, an essential characteristic of the modern nation state is the monopoly of the legitimate use of violence. The emergence of the modern private military industry upsets this arrangement, however, in fact, state's exclusivity in the military realm is an exception in the world history, rather then the rule.
Ancient armies, from the Chines to the Greeks and Romans, were to a large extent dependent on contracted forces. Before the rise of the nation-state, nearly all forces were contracted.
Today, there is not a clear consensus on how to define mercenaries. The very word mercenary has surely acquired a negative connotation, and, in the general imagination it has become synonymous of being pitiless and disloyal. However, what is really important is how mercenary is defined in legal terms. Unfortunately, tough definitions of mercenary exists under international law, they are very poorly written.
The international community has elaborated three main legal instruments in order to regulate the mercenary phenomenon: Article 47 of the 1977 Additional Protocol I to the Geneva Conventions (APGC77), the 1977 Organization of African Unity (OAU, now the African Union, AU) Convention for the Elimination of Mercenarism in Africa, and the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries (commonly now as United Nations Mercenary Convention)
The UN definition of mercenary activity in the International Convention is based on a vague criterion of individual motivation for financial gain, while, the OAU/AU convention is specifically designed to cover the activities of mercenaries in post-colonial Africa.1
Article 47 of the APGC77 remains the most important attempt to regulate mercenarism.. Art. 47 of the APGC77 provides for a mercenary is any person who: (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) is not a member of the armed forces of a Party to the conflict; and (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.2 The weak point of Art. 47 of the APGC77 is that all these criteria (a-f) must be met for a combatant to be described as a mercenary.
Applying all these requirements to one individual is practically impossible. The definition would not pertain to: one who fight in a civil war, someone who fight primarily for economic gain but is not paid 'substantially in excess' in comparison with members of the armed forces, those who are considered to be in an organisation, as opposed to being an individual), and so on. In fact, except for a man who fought for Fidel Castro, anyone has never been prosecuted for being a mercenary in the last eighty years.3
So, it is ought to go beyond the legal definition of being a mercenary and consider the person's motivations. In referring to private military contractors, we could speak of mercenary motives as they use military skills for profit. They thus represent a corporate evolution of the mercenary trade. Throughout history, there have been all sorts of times when for-profit entities have operated in war.
It might be said that the very first PMCs were the thirteen century band of knights, the "companies' (this term derives from con pane, that is the bread they received as payment). These were organisations designated to facilitate their employment as a group, or at the very least, to provide one another sustenance and protection. While, the first legal contracts were introduced by the condottieri (thisterm derives from condotta, that is their hiring contract), which were entities that fought in Italy in the 1500s.4
With the rise of the nation state in the late 1700s, fighting-for-profit fell by the went black market, and this is really when what is now our stereotyped idea of mercenaries emerged. Then, mercenaries who were active in Africa during the decolonisation period, such as Mike Hoare, contributed to dubious reputation that soldiers of fortune have in the today public opinion.5
What is happening now is that the profession has gone from being black market to being open market again, and it has gone back from being individual mercenaries to being corporatized. In fact, PMCs are organised along corporate structures, operate as legal entities and maintain complex financial ties to other firms, both within and outside their industry.6
The Industry Classified
PMFs are business organisation that trade in professional services that fall in the military domain. However, the services offered vary greatly: from the provision of operational support in combat, military training, assistance with weapon procurement, competitor intelligence to risk assessment, logistical support, personal and asset protection.7
Attempts to distinguish and classify private actors in the military service sector have more precisely been much debated. A distinction is often made between 'private military companies (PMCs) and 'private security companies' (PSCs). The first are private companies providing offensive/active services, designed to have a military impact, whereas the second offer defensive/passive services, intended mainly to protect individuals and properties.8 However this distinction that hinge on the 'lethality' of the the services provided is problematic because of two reasons. First, what is perceived as defensive under one set of circumstances may instead have offensive repercussions in an other. Second, since private military contractors generally offer many different services, this distinction is irrelevant at best or misleading at worst.9 Singer refuses this kind of divisions and remarks 'no one in the military is defined as to whether they're offensive or defensive. No weapon is offensive or defensive..a weapon is offensive or defensive depending on which side of the gun barrel you are facing'.10 For instance, the Blackwater personnel providing Paul Bremer's security in Iraq fought off rioters in ways that were hard to distinguish from combat.11
In the most comprehensive study of the private military industry to the date, Singer proposes a classification system for firms, based on a military 'tip of the spear' analogy in the battle space, where the 'tip' indicates the frontline. He distinguish three basic types of firms on the basis of the range of their services and the level of force used. Military provider firms, which offer services at the frontline, such as command of the forces and implementation; military consulting firms, which mainly provide strategic advice and military training; and military support firms, which provide logistics, intelligence, and maintenance services to armed forces, allowing the latter's soldiers to concentrate on combat and reducing their government's need to recruit more troops or call up more reserves.12
Singer's categorization is useful because it provides a more detailed picture than the 'military versus security' dichotomy as well as it helps to schematize the broad trend within a vast market.13 However, as Singer himself explains, while some firms are clearly placed within one sector, others lie at the sector borders or offer services in various sectors. Moreover, many PMCs are now large multinational companies that thus cross sectors.14 Furthermore, the strategic impact may be relevant regardless the type of services provided. Because of what just stated, this thesis employs the term 'private military company' to denote all companies within the industry, that is all 'profit-driven organizations that trade in professional services intricately linked to warfare'.15
The Growth of Multinational Companies
Today PMCs can range in size from small consulting firms to large transnational corporations. However, the actual trend is toward the creation of military corporate conglomerates through mergers and acquisitions. Brand marketing and sub-specialisation are seen as necessary in order to compete on the global scene. Broader based firms can more easily offer the wider range of services that are considered as essential for complex security situations.16
Often, public policies of privatization favour this kind of reorganisation within the private military industry. For instance, under the Private Finance Initiative (PFI) scheme, the British government invites private companies to bid for contracts covering the construction, maintenance and servicing of military facilities (contracts which typically last between 10 and 40 years). In this way, private companies have guaranteed continuous income and can generate 'third party revenue' from the sale of spare capacities to private customers in the UK and abroad. The PFI scheme has facilitated the growth of the private military service industry in the UK, and since British PFIs require a prime contractor (i.e. a single company which signs the contract with the government), they have fostered close prime contractor-supplier relations and the creation of consortia specifically designed to compete for Ministry of Defence projects17
ArmorGroup International plc well exemplifies the trend towards consolidation and diversification. It originated as Defence Systems Limited (DSL), which originally offered security training and consultation to governments and multinational corporations operating in conflict zones. DSL was acquired in 1997 by Armor Holdings Inc. (AHI), a US company in the armour business. Following its acquisition by AHI, DSL became part of its ArmorGroup division, which continued to grow organically as well as by making a number of acquisitions. In may 2008, ArmorGroup was acquired by G4S plc, the world's leading international security solutions group.18 ArmourGroup is just one case of the merger mania in the military services field. For example, G4S plc (formerly Group 4 Securicor, LSE: GFS, OMX: G4S) formed by the merger of Securicor and Group 4 Falck in 2004.19 L-3 Communications, a firm specialising in communications and security support services, bought Military Professional Resources Incorporated (MPRI)in 2000 and Titan Corp. in 2005.20 MPRI has acquired Ship Analytics, Inc in 2002, Haven Automation, Ltd. in 2003, BeamHit LLC in 2004), GE Driver in 2004, and Hitec-O in 2005.21
A multibillion dollar business
Since the first 1990s, the private military industry has experienced an exceptional growth. PMFs now constitute the second largest occupying force in Iraq behind the US military.
In 2006, the estimate related to the annual contracts of the private military industry varied between $10–$20 billion and $100 billion.22 The US GAO estimated that, as of the end of 2005, $60b had been allocated 'for security, governance, and reconstruction efforts in Iraq', of which it estimated that 'costs to obtain private security services and security-related equipment .ranged from 10 to 36 percent of project costs'.23 Companies revenues are extremely high, for example, in 2007, Science Applications International Corporation (SAIC) and Halliburton had annual revenues of $8.9 billion and $15.2 respectively.24
In the last years, the large companies that have purchased the best PMFs on the market have surely done great deals. In fact, some PMFs are constantly present in the Fortune 500 list. For instance, in 2008, Northrop Grumman, Halliburton, Computer Sciences and SAIC were ranked 76, 167,170 and 289 in the Fortune 500 list.25
Civil finance and investment in the provision of private military services are strictly linked. The most emblematic case is that of the participation of private contractors from CACI International and Titan Corp in tortures against detainees at Abu Ghraib prison in Iraq. Following the news of the abuse, two California pension funds threatened CACI International Inc. to divest their stakes in the company If the CEO was aware of the conduct of their employees. 26Behind this initiative there was surely the will to safeguard the reputation of the funds, but also the necessity to keep a considerable investment since the stock greatly lowered in price. Essentially, the concept is: no upsetting the market.
The Recruitment: Great Offer, Low Costs
The key factor for the reduction of the costs is the extreme easiness to recruit skilled professionals at an overall reasonable price. The demobilization of world armies following the end of the Cold War and the poor pay of law rank soldiers in most of the world armed forces guarantee PMFs a continuos flow of new hires. Trained and experienced military personnel from Special Forces units in the US, UK, Israel, France and South Africa are retiring to take part. The same is true for the intelligence agencies as companies aiding business ventures in Iraq like GlobalOptions and Diligence see executives on the boards from the CIA, DIA, FBI, the Secret Service, FEMA and MI6.27
According to a 2006 study of the Geneva Centre for Democratic Control of Armed Forces (DCAF), the typical salary of skilled soldiers from the main PMFs exporting countries ranged from $400 to $1000 a day. 28 On PMCPSC.com, a site dedicated to the private military industry, it is reported that the approximate salaries are:$150,000.00 per year (tax free.) for PMC Agents, $175,000.00 per year for PMC Senior Agents, $200,000.00 per year for PMC Asst Detail Leader, and $250,000.00 per year for PMC Detail Leader.29 In a 2005 US GAO study it is reported that private military contractors were earning $12,000 to $13,000 a month working on security convoys in Iraq and as much as $33,000 a month guarding high-ranking government officials. That compares to $4,670 in monthly base pay and housing allowance earned by a typical Navy SEAL with 10 years of experience, the sort of person private military companies like to hire.30
Although these rather impressive salaries the costs are kept down mainly thanks to two factors. First, many PMCs employ people from the country the operate in as well as "third-country nationals" who are paid significantly less than their "western colleagues". For instance, as many as 20,000 Afghans work for the estimated 90 firms in-country.31 Many US PMCs widely recruit personnel in Latin America. According to Adam Isacson, director of programs at the Center for International Policy, this phenomenon can be explained by the presence in the region of reasonably westernized people with military or even combat experience, who work for low wages (as little as $1000 a month), who speak a language that a lot of US military personnel speak since the U.S. Army is about a quarter Latino and that Latin America accounts for about 40% of U.S. military training programs worldwide.32 The second factor is that PMCs have access to individuals who have already passed through a selection and training process within national armies. As Singer explains, PMCs charge governments for 'services provided by the human capital that the military itself originally helped build'.33
It is hard to think of another industry that currently enjoys such an advantage in both qualitative and quantitative terms as the private military industry does.
PMCs Structure
An other element that has fostered the growth of the private military industry is that many firms operate as 'virtual companies'. Similarly to e-commerce or temporary jobs firms, which have to sustain little fixed costs (rent, machinery, etc.), the PMCs have not to employ many permanent workers. 34 On the contrary, they use databases that list individuals by experience and specialty, so contractors can custom-fit each job with qualified employees. Individuals may appear in several databases, move easily from one contract (and company) to the next. For example, SAIC, which is based in San Diego, in 2001, had 14.0000 employees in Washington and 41.0000 worldwide, while MPRI had a database of some 12,000 retired military personnel who could be called upon to handle contract work.35 According to the military outsourcing expert Steven Schooner stated PMFs 'have access to an unlimited public. And particularly by paying recruiting bonuses or using perhaps incentives, you can get literally unlimited potential to do any task that needs to be done anywhere in the world'.36 In addition, any toll of the trade, such as weapons systems and other military equipment, are bought or leased from the international market on a case-by-case basis rather than be held in stock.37
A consequence of these lowered fixed costs is that it allows global location. Although, many companies, have offices in areas rich in potential recruiting or clientele, for example the city of Alexandria, in Virginia, which is close to Washington as well as to The Pentagon and the CIA office in Langley, this is not a necessity.38 The recruitment process can be carried out from anywhere. Similarly to the practices of the financial services world, several firms have offices in central locations, but are actually registered in tax-free paradises as the Bahamas, the Cayman and Seychelles.39
The virtual nature of the structure also allows companies to rapidly dissolve and recreate themselves whenever the need arises (either because of potential regulation, prosecution, or because of the need to shed a poor brand name).40 A paradigmatic is that of the close of the South African firm Executive Outcomes (EO) in 1998. When domestic regulation became an issue, EO simply 'devolved' its activities to its spin-offs and new provider firm, headed and staffed by former EO personnel.41
The private military industry well represents the today trends of the world economy which is more and more moving towards an extreme level of finance as well as a total separation from production cycles and the use of resources. Probably, the PMFs manage to better take advantage of all those mechanisms of exploitation that can be hardly fully used in other industries because of the opposition of some parts of the society.
Clients
In almost 20 years, PMCs have been active on every continent but Antarctica, working for a great variety of clients. Aside from states, PMCs provide their services to corporations, NGOs, international and intergovernmental organisations.42
PMCs have been massively present in the global South (especially in Sub-Saharan Africa), either providing capabilities that weak states (or even rebel groups) lack or protecting aid workers and the assets of multinational corporations. For instance, more than eighty private military services provider participated in the Angola conflict in one role or another.43 Very recently, French private military firm Secopex has announced a contract with Somalia's Transitional Federal Government, worth 50 to 100 million Euros over three years, to patrol the coastline and to protect president Yusuf.44
Among Western countries, the US have become the most reliant on the on the private sector for maintaining its military capability. According to a 2002 report of the International Consortium of Investigative Journalists (ICIJ), from 1994 to 2002, the U.S. Defense Department had entered into 3,061 contracts with 12 U.S.-based PMCs. Pentagon records valued those contracts was more than $300 billion. More than 2,700 of those contracts were held by just two companies: Kellogg Brown & Root and Booz Allen Hamilton. It was also stated that because of the limited information the Pentagon provided, it was impossible to determine what percentage of these contracts was for training, security or logistical services45. Every major U.S. military operation in the post Cold War era (whether in the Persian Gulf , Somalia, Haiti, Zaire, Bosnia, Kosovo or, more recently, Afghanistan and Iraq)has involved significant levels of PMCs support.46
Also the British government is an important client of PMCs; it has spent £179 million between 2003/2004 and 2007/2008 on contracts with private military contractors in Iraq and £46 million during the same period in Afghanistan.47
A huge flow of money to PMFs also comes from MNCs that are present in areas at conflict (mainly oil and mining MNCs). In the midst of conflict, private contractors create localised stability that reduces costs and increases investment values. For example, in Algeria as well as in Colombia, oil companies spend massive sums of money on military style protection respectively against Islamic terrorists and leftist guerillas and paramilitaries.48
Another important market for PMFs is that of humanitarian aid. NGOs, UN agencies as well as regional organizations have all been clients of private military service providers. For instance U.N. peacekeeping missions in Sierra Leone, Liberia, Cote d'Ivoire, and the Democratic Republic of the Congo have outsourced their supply and logistical needs to PMFs. In the case of Sierra Leone, Executive Outcomes (and later Sandline and other PMFs) provided operational and combat support to the Sierra Leonean, ECOMOG and British Armed Forces, although the exact extent of their support remains shrouded in controversy. More recently, the UN Mission in Ethiopia and Eritrea (UNMEE) contracted a commercial de-mining team to replace the Slovak military de-mining group to reduce mission costs.
PMFs are trying to have a greater role in the humanitarian field as this would mean working with reliable clients, having extended and thus more profitable contracts as well as gaining more public legitimacy. Good example of PMFs interest in this sector is what stated by Doug Brooks, the president of the International Peace Operations Association (IPOA), an industry body for PMFs, last year, during a conference in Nairobi, Kenya, attended by UN agencies, NGOs, officials of numerous governments and several private sector companies. He said PMFs 'could enhance peace and stability in regions plagued by protracted conflict such as Sudan's Darfur and Democratic Republic of Congo's DRC) North Kivu'...'It is significantly cheaper to hire expertise and equipment from companies than it is for militaries to attempt to maintain them for years or decades'. 49
Developmental Factors
The emergence and growth of the private military history is the result of a variety of both demand- and supply- side factors: (a) the global downsizing of national militaries; (b) the rise of privatization of traditional government functions; (c) transformations in the nature of warfare; (d) the war on terrorism and the war in Iraq.
The End of the Cold War and the Vacuum in the Market of Security
The end of the Cold War and of apartheid in South Africa caused militaries to be scaled back in the late 1980s and early 1990s. World-wide, the number of military personnel fell from 6,873,000 in 1990 to 3,283,000 in 1997.50 From 1989 to 1999, U.S. Forces and budgets decreased of 40%; for the Army this meant that 111 combat brigades reduced to 63.51 The British military, meanwhile, is at its smallest since the Napoleonic wars.52 In the former Soviet Union, tens-of-thousands of personnel demobilised from the Soviet Armed Forces and the intelligence apparatus have joined increasingly-active private security firms, involved quite often in very questionable dealings with the various elements of organised crime in the Former Soviet Union.53
The end of the Cold War also meant that many long simmering conflicts, previously held in check by the former 'superpowers', erupted. So, just as major powers pushed to reduce spending and troop levels, they had to face an unexpected need to maintain capacity. For instance, between 1989 and 2000 the U.S. Army deployed troops on 36 occasions compared to 10 deployments during the 40 year Cold War.54
In addition, an increase in the demand for private military services came from: countries seeking to upgrade their militaries as a way of demonstrating credentials for entry into Western institutions, from rulers of weak or failed states no longer propped up by superpower patrons, and from non-state actors as private firms, NGOs operating in the territories of weak or failed states.55
Since markets, like nature, abhor a vacuum, PMCs emerged to fill that 'security void'.
Privatization of Military Functions
In the late 1970s for a variety of reasons mainstream economics became highly critical of state intervention and Keynesian welfare policies. Politically this was marked by important changes in the way that economic policies were pursued across the world. Reaganomics and Thatcherism were the most extreme expressions of a general trend in the developed world toward reliance on markets. In the developing world the focus went from 'import substituting industrialisation' to a focus on 'structural adjustment' and 'good governance'. One of the consequences of these shifts was that state theory became increasingly 'utilitarian'. This general change has resulted in a relative standing of public and private experts in all fields, with private experts gaining credence as efficient and competent alternatives to heavy public administrations. This holds also in the field of security. The end of the Cold War made it possible to relax the civil control over the military and security sphere and to more fully develop private expertise in this sphere also.56
Saving money and conduct business in a more efficient way are now important elements of defence policy, especially among Western powers. For instance, in the United States, Presidents Billl Cllinton and George W. Bush both embraced privatization as a way to help reduce the armed forces. President Bush has even identified outsourcing as one of five top government-wide priorities.57 In 2002, former Secretary of Defense, Donald Rumsfeld, wrote in a state-of-the-military review: 'Only those functions that must be performed by the [Department of Defense] should be kept in the DoD,' 'Any function that can be provided by the private sector is not a core government function.'58
Transformations in the Nature of Warfare
While small-arms simplification and proliferation has increased the ability of minor warring groups to disrupt entire societies, creating even greater demand.59
Warfare has also become more technological at its highest levels. Today high-tech weapon systems are so complex that combat units in the field have to widely depend on expert civilians to maintain and, in some cases, operate them.
Favourable conditions for the use of PMCs are thus emerged, as greater demand for security is coupled with the need of high-tech, low density skills that are difficult to develop and maintain among uniformed soldiers.60 For example, the U.S. Army depends entirely on civilian contractors to maintain its Guardrail surveillance aircraft. With relatively few planes packed with specialized intelligence-gathering systems on board, the service decided it was not cost effective to develop its own maintenance capability.61
A part from outsourcing capabilities which are expensive to maintain, advanced militaries in the developed world (as the above example illustrates) also contract PMCs for skills that do not exist in -house, similarly to those developing countries that employ PMCs for making up capabilities they do not have. What stated hold particularly true with reference to offensive information warfare. This capability, known in the civil community as hacking, poses cultural problems for modern militaries. The hacker community is somewhat anarchistic, with individuality being a key motivator. That cultural norm is at odds with a traditional military approach, making the acquisition of new and evolving skills difficult.62
'Global war on terror' and Iraq War
Almost two decades after the end of the Cold War the private military industry continues to grow. The demand for private military services is led by the United States. Its pursuit of the 'Global War on Terror' has created a surge of spending, exacerbated strains on existing forces, and demanded new skills, all of which have enhanced the use of PMCs.63
The private military industry was one of the few whose economic outlook was improved rather than harmed by the 9/11 attacks. While the U.S. and global economy suffered from the shock, the prices of PMCs listed on stock exchanges jumped roughly 50 percent in value.64
Private contractors have played key roles in many anti-terrorism operations around the world. In the war in Afghanistan, their employees deployed with U.S. military forces on the ground, including serving in the CIA paramilitary units that were the first to hit the ground, maintained combat equipment, provided logistical support, and routinely flew on joint surveillance and targeting aircraft. The private companies are still present in the region today. In other areas, PMCs have played similarly wide-ranging roles. For instance, the operations in the Philippines against Islamic guerrillas have DynCorp working on logistics, while other members of the firm are playing a more active role in anti-narcotics and counter-guerrilla operations in Colombia.65
However, Iraq is the real 'pot of gold' for PMCs. A mid-2006 assessment by the US Government Accounting Office (GAO) found that more than 48,000 contractors working for 181 PMCs were active in Iraq, dwarfing the British military presence and reducing the ratio between contractors and statutory military forces to less than 1 in 5 (as compared to 1 in100 during the 1991 Gulf War).66 However, these figures largely vary according to who is counting. For example, it has also been said that in 2006 there were 100.000 private contractors in Iraq, thus, the ratio between US soldiers and private military personnel was almost one to one.67 While, according to a study of the Institute for Policy Studies and Foreign Policy In Focus, at the begging of 2008 the number of private military contractors in Iraq was 180,000. Similar figures are contained in a U.S. Congressional Budget Office report (CBO) released in August 2008. CBO estimates that, as of early 2008, there were at least 190,000 private contractors or subcontractors working on U.S.-funded projects in the Iraq theatre, which includes Iraq, Bahrain, Jordan, Kuwait, Oman, Qatar, Saudi Arabia, Turkey, and the United Arab Emirates. Most of the work performed by contractors, according to CBO, deals with logistical support, construction projects, food services and providing petroleum products. The report examined data from 2003 through 2007.68
PMCs have had a central role in all the phases of Iraq war, carrying out a wide range of tasks. In addition to war gaming and field training U.S. troops before the invasion, private military personnel handled logistics and support during the war's buildup. The U.S. complex at Camp Doha in Kuwait, which served as the launch pad for the invasion, was built as well as operated and guarded by private contractors. During the invasion, PMCs maintained and loaded many of the most sophisticated U.S. weapons systems, such as B-2 stealth bombers and Apache helicopters. They even helped operate combat systems such as the Army's Patriot missile batteries and the Navy's Aegis missile- defense system.69
Reliance on PMCs increased greatly after the initial major combat operations phase, principally because of two reasons. First, the U.S. administration underestimated the number of troops that would be required for stability and security operations. So, PMCs were needed just to fill in the military logistics requirements of sustaining U.S. and other coalition forces.70 For instance, Halliburton's Kellogg, Brown & Root division (KBR), recently spun off into its own firm, currently runs the logistics backbone of the force, doing everything from running military base foodhalls to moving fuel and ammunition.71 Second, Bush administration also miscalculated and did not anticipate the emergence and growth of the insurgency.72 Today, firms as Blackwater provide services that include protecting important installations, such as corporate enclaves, U.S. facilities, and the Green Zone in Baghdad; guarding key individuals; and escorting convoys important installation help guard facilities and bases to escort high value individuals as well as convoys.73
Needless to say, the provisions of such risky services has resulted in massive revenues for such firms. For example, since 2002 Blackwater has received government contracts worth more than $1 billion, with most coming under the Bureau of Diplomatic Security.74
Chapter 2 - Problems Of Military Privatization and Options For Regulation
Contentious Issues
The increased presence of PMCs in conflict zones does not come without problems, as the experience in Iraq has clearly demonstrated.
In Iraq, contractors have been involved in many of the most controversial aspects of the war: from alleged corporate profiteering, the incidents at Fallujah and the uprising that followed, to the Abu Ghraib scandal (where the U.S. Army that 36 percent of the identified abuse incidents involved private military contractors, and they also identified six private military contractors as being individually responsible up to a potentially criminal level) and the Aegis company's Elvis-themed Internet "trophy video" as well as the killing of 17 Iraqi civilians by Blackwater employees. And, it is worth recalling that any of those private contractor individuals has been legally prosecuted, punished, or imprisoned.
The increased privatization of the militaries raises five broad policy questions which will be discuss below.
Contractual Dilemmas
Ideally, good competition, proper management and oversight would ensure private companies to comply with their clients' interests. However, reality is often much different.
Monitoring PMCs' activities is particularly problematic. First of all, they operate in flung war zones where it is particularly difficult to know exactly what they are doing. Furthermore, even the best militaries have little knowledge on how to menage contractors resources and integrate them, therefore there is not effective operational oversight. Likewise, contract terms with the PMCs are often unspecific, thus the client largely depend on the information given by the agent about how well the contract is going as well as on what to do next.75
A successful monitoring of PMCs' contracts is also hampered by the fact they are often awarded with little competition. PMCs constitute a specialized industry where competition is fragmented and where the applicability of sanctions is restricted. Two other factors may exacerbate the limited competition. First, states are not totally free in the selection of contractors. In the US, for example, normally military contracts are awarded to American firms because of security considerations. Second, and more importantly, like traditional military contractors that make weapons for national armed forces, political connections are important to PMCs to win contracts.76
PMCs extensively use political campaign donations and employ lobbyists to influence government officials. In 2001, the ten leading private military firms spent more than $32m on lobbying, while they invested more than $12m in political campaign donations.77
Several companies have senior directors or advisors with high-level experience or influence with current or former U.S. and British governments.
Notably, US Vice President Cheney was CEO of Halliburton from 1995 – 2000. Although he has denied having any "retained ties," according to his financial disclosure forms he earned $192,852 in deferred compensation in 2004.78 Many others are the cases of 'revolving door' between government and PMCs, such as: Blackwater's vice-chair, Cofer Black who was Coordinator for Counterterrorism at the U.S. State Department as well as Director of the CIA's Counterterrorism; Sir Malcolm Rifkind, non-executive chairman of ArmorGroup, is a former U.K. Foreign Secretary and a currently Conservative MP; and Nicholas Soames, MP and former defence.79
Another fundamental concern related to the use of PMCs is that of cheating or intentionally overcharging, given that the maximization of profit is the fundamental goal of any corporations. Many are actually the cases of fraud and waste of money. For example, Halliburton's KBR subsidiary is the major prime contractor executing the U.S. Army' s Logistical Civil Augmentation Program (LOGCAP), which is a variation of the cost -plus contracts. Under this arrangement, KBR supplies virtually all of the Army's non-combat needs in the field, from building and operating bases to repairing and maintaining combat vehicles. The U.S. government pays KBR 1 percent of every purchase KBR makes with the possibility of an additional 2 percent as an incentive bonus that is paid if the company is operating efficiently and honestly. LOGCAP also requires the company to purchase items only from a vendor offering the lowest price if the amount of the purchase order exceeds $2,500. But KBR often takes a purchase order exceeding $2,500 and breaks it down into its parts so that the order becomes more than one purchase order, each valued below $2,500. This allows the company to avoid searching for the lowest-priced vendor. About 70 to 80 percent of KBR's purchase orders are below $2,500 mainly because large-value purchases are broken down so they don't exceed $2,500.80 Among the overcharges engaged in by the company have been the following: overcharging by more than a dollar a gallon for fuel shipped into Iraq from Kuwait; billing the government for three times as many meals as it actually served the troops at several of the bases it runs; leasing SUVs for its personnel at a cost of $7,000 per month; and charging $100 each for doing a bag of laundry. These are just a few examples among dozens in which Halliburton took advantage of the "fog of war" to line its pockets. The company's attitude can be summed up by what said by a former employee of Halliburton who indicated that when he raised questions with his supervisor about the company' s lavish expenditures of government money he was told 'don't worry about it, it's cost-plus.'81 Another notorious example involves Custer Battles, a startup military provider firm. After revelations by whistle-blowers who had worked for the firm, the extent of the company's corruption was exposed. A part from failing to provide the security and transport services it was contracted to do, internal company documents showed that it had routinely charged for at least twice the value of services supplied by padding bills and subcontracting phony companies.82
According to testimony before the House Committee on Oversight and Government and Reform, the Defense Contract Audit Agency has identified more than $10 billion in unsupported or questionable costs from battlefield in Iraq, and it has probably barely scratched the surface.83
A final central problem when contracting out military functions to private contractors is that they remain private businesses and thus they are not bound by the same codes, structures and obligations as regular military. This implies that if operations become unprofitable or too dangerous, companies or individuals may decide to suspend or end their operations. As Tom Crum, then the chief operating officer for KBR's logistics operations, wrote in an internal memo, 'We cannot allow the Army to push us to put our people in harm's way. ... If we in management believe the Army is asking us to put our KBR employees in danger that we are not willing to accept, then we will refuse to go.' As civilians, this choice is their right to make it may have serious repercussions in terms of efficiency and security. For instance, retired Army Major Gen. Barry McCaffery said to U.S. Congress in 2007 that the consequence of turning over so much of the supply system to private civilian firms makes U.S. logistics system 'a house of cards.'84
Incompetent Personnel and Rogue Clientele
Few regulations exist on who can work for PMCs and who they can hire themselves out to.
Private contractors' employees are not necessarily subject to the same screening and vetting as regular forces personnel, particularly foreigners and those who may be hired in theatre.
Some of the people in the industry are extremely talented soldiers. For example, there are more former British Special Air Service (SAS, which is on of the most renowned special forces organisation in the world) in Iraq now serving in a private capacity than there are SAS troops in the entire British military right. There are also a number of former U.S. Army Delta Force soldiers and former Navy SEALs (United States Navy Sea, Air and Land Forces), working in Iraq.85 However, in some cases, PMCs' focus on efficiency has allegedly led some firms to cut costs by hiring unqualified individuals. For example, when the US government outsourced the maintenance of US combat aircraft to DynCorp, according to several whistle-blowers, the company hired former security guards, cooks, waiters, store clerks, etc. to work on the aircraft. When the number of suspects brought to Abu Ghraib exploded, CACI was forced to hire a large number of interrogators quickly.86 U.S. Army investigators of the Abu Ghraib prisoner-abuse scandal found that about 35 percent of the CACI interrogators lacked formal military training as interrogators.87 In other cases, investigations of contractors working in Iraq revealed, for example, the hiring of a former British Army soldier who had been jailed for working with Irish terrorists a well as of a former South African soldier who had admitted to the Truth and Reconciliation Commission in South Africa that he had firebombed the houses of thirteen political activists.88
Similar issues may also arise with regard to the clientele of private contractors. Though PMCs have worked for democratic governments, the UN, and humanitarian organizations, they have also been hired by far less respectable clients as warlords, dictatorships, rebel groups, and drug working for warlords, and two separate Colombian drug cartels. Prior to 9/11, one contractor even provided a military training course for young Muslim youth who wanted to join the jihad in Kosovo or Kashmir or Afghanistan.89 Recently, Logo Logistics, a British-South African PMC was involved in an attempt to overthrow Equatorial Guinea's government, and, last July, Simon Mann, the owner of the company was sentenced to 34 years for his role in the failed coup.
Foreign Policy by Proxy
A third concern related to the use of PMCs is that they may be used as proxy in conflicts in which the states finds it politically detrimental to get involved. In other words, proxies allow governments to evade the usual range of democratic oversight. Furthermore, in open conflict the use of private contractors helps governments to hide the real human and financial costs of intervention, thus reducing the obstacles to continuing a prolonged conflict that would not gain legislative or public approval.90 Although, such freedom may be beneficial in certain circumstances as it can allow countries to fill unpopular strategic needs. But, importantly, it also creates a gap between the public and its foreign policy, removing certain activities from popular oversight.
The U.S. government use of private contractors in war against drug in Colombia well illustrates this trend. By hiring PMCs, the Bush administration has circumvented congressional limits on the size and scope of the U.S. military's involvement in Colombia's civil war. In 2004, Congress approved raising the cap to allow up to 600 U.S. civilian government contractors in Colombia. However, under the terms of the law, the United States is permitted to, a actually does, contract foreigners above and beyond these caps.91 In addition, as Singer put it, in place like Colombia, "the US is worried about "mission creep." Subjecting contractors instead of US military personnel to danger is far more politically viable as they often fly under the radar, with their costs and duties less known".92
The use of PMCs in Iraq is another example. From the start of the war in March 2003 to the end of 2007, 1,123 civilian contractors are known to have died in Iraq, according to the U.S. Labor Department. Yet these contractor casualties go largely unmentioned by the Pentagon and unnoticed by the American public.93 Thus, the Bush administration by privatizing parts of the U.S. mission in Iraq has been able to shield the full human cost from scrutiny. Furthermore, the U.S. government through the use of private military contractors has avoided both deploying more of its own troops and persuading other countries to increase their commitment, either of which would involve painful political compromises.
Future of National Militaries
The extensive use of private contractors has had a wide-raging impact on national militaries.
The introduction of PMCs challenges militaries's ability to retain experienced soldiers; retiring from service in order to undertake lucrative work for private companies is a very appealing alternative. Salaries of well over US$100,000 have reportedly been offered to special operations personnel if they change career, with assignments paying US$1,000 a day.94
Migration to the private sector has become especially pointed for special forces units, which have the most sought, and thus marketable, skill sets. Elite forces commander in the U.S, Canada, U.K., Australia, New Zeland, among other countries, have all expressed concerns over the exodus. For instance, Singer reported that one U.S. special forces officer described the issue of retention among his most experienced troops as being "at a tipping point".95
Some initiatives have been taken in order to oppose this phenomenon. For example, the US Special Operations Command has devised new pay, benefit, and educational incentives to try to retain talented soldiers. The British army now offer elite soldiers year-long 'sabbaticals' to allow them to serve with PMCs in Iraq,96 and in August 2006, increased pay for SAS and other special forces personnel by 50% to stem the rate of defections to PMCs.97
The distinction between active duty and retired soldiers is getting more and more blurred, one possible consequence of this is that public trust in the military may diminish. As U.S. Army Colonel Grant put it: '(The) public's faith in their military leaders would seriously deteriorate when the public realises that despite paying the military relatively well during active service and providing a generous pension, the retired military seek to cash in on their skills in foreign lands. It is hard to undersigned how one day the general in uniform is a selfless servant of the state motivated by love of country and dedicated to soldiers, and the day after retirement is selling his services to the highest bidder'.98
As citizens see militaries as motivated only by money rather then patriotic values, the profession of the army would be cheapened in the public's eyes. This may be accompanied by greater acceptance of reliance on PMCs. Consequently, the military as an institution could be fundamentally redefined within society, making public trust in the armed force a thing of the past.
The private option provides flexibility in the short run but also prevents investment in (or needed reorganization of) military forces to deal with a new range of problems. The flow of money from governments to PMCs means diminished investments in public institutions and thus private rather public s is encouraged. Consequently, the price for 'private contractors' flexibility' may be a higher and higher dependency on private military services providers.99
Legal Murkiness and New U.S. Law
As we have seen, international law does not define the status of contractors. Moreover, international legislation is notoriously difficult to enforce, and, in fact, the International Criminal Court (ICC) has never dealt with cases involving private contractors.100
A part from few exceptions, national laws ignore the existence of the private military industry. Among the few countries to have in place a national legislation of the industry, South Africa and the U.S. are those with the most advanced ones. In the United Kingdom, after the Foreign Office published a green paper in 2002 on how private contractors could be regulated, the government has avoided the issue despite a subsequent call for action by the Commons foreign affairs committee.101
South Africa
In May 1998, South Africa passed the the Regulation of Foreign Military Assistance (RFMA) Act. The government's decision to address the issues of mercenaries and PMCs in legislation was inspired mainly by the controversy surrounding the activities of South Africa's PMCs, the best known of which was Executive Outcomes.
The 1998 RFMA Act will be replaced by the 2006 Prohibition of Mercenary Activities in Country of Armed Conflict Act when South Africa President proclaim in a Government Gazette the date upon which the Actshall come into operation.1
The 1998 RFMA Act stipulates that a person who wish to provide any any form of foreign military assistance (including advice or training; personnel, financial, logistical, intelligence or operational support; personnel recruitment; procurement of equipment; or any other action that has the result of furthering the military interests of a party to the armed conflict ) has to obtain the authorisation of the National Conventional Arms Control Committee.2
However, only very few prosecutions have been instituted in terms of that RFMA Act and, in most cases a conviction followed only after a plea bargain was entered into between the prosecution and the accused.3
The Prohibition of Mercenary Activities in Country of Armed Conflict Act is mainly a response to South Africa government with the increased participation of South African citizens in conflicts around the world. For instance, in mid-2004, it was estimated that there were some 1,500 the former South African Defence Force (SADF) members in the private military sector operations in Iraq.4 The growing number South Africans personnel working for foreign PMCs (mostly British and American) and massive recruitment by events around the growth of mostly American and British private, as well as the botched Equatorial Guinea attempted coup and its aftermath, highlighted the weaknesses in the RFMA and the need for improved legal provisions to prevent or curb mercenary activity or to provide clear regulation of, and guidelines for, private military and security companies.5
The aims of the new Act can be summarized as follow: prohibiting mercenary activity, regulating the provision of assistance or service of a military or military-related nature in a country of armed conflict, regulating the enlistment of South African citizens or permanent residents in other armed forces, and regulating the provision of humanitarian aid in a country of armed conflict. It provides for extra-territorial jurisdiction for the courts of the Republic with regards to certain offences and it provide for penalties for offences related to the Act.6
The Act therefore, bans mercenary activity outright. In regulating the other activities the Act provides for application to the National Conventional Arms Control Committee for the rendering of security services and the provision of humanitarian assistance in countries of armed conflict as well as for the enlistment in armed forces other than the South African National Defence Force (SANDF).
The record for enforcement of the existing legislation is extremely poor, it is to see if South Africa, with the new law, will be able to do better.
United Kingdom
The United Kingdom, have long cooperated with PMCs to support foreign policy objectives with no clear policy in-place to govern such activities.7
In 2002 the British government published a Green Paper outlining the options for regulating the private military industry on a national basis: a ban of military activities abroad and recruitment for military activity abroad; three different types of licensing schemes; and self-regulation of the industry.8
However, the government has since avoided the issue despite a subsequent call for action by the Commons foreign affairs committee. The committee recommended that 'private companies be expressly prohibited from direct participation in armed combat operations, and that firearms should only be carried ... by company employees for purposes of training or self-defence'.9
As regards employees of British PMCs which provide support services to the Armed Forces in war time, they are subject to the Service Discipline Acts and Service Regulations. This was made possible through the incorporation of the concept of 'Sponsored Reserves' into British law in the Reserve Forces Act (Part V) in 1996.10 PMCs can enroll parts of their workforces as voluntary 'Sponsored Reservists'. As reservists, these employees are liable for "call out," subject to service discipline and regulations, and receive appropriate military training. In addition, they have no right to appeal against a call-out and as with other reserve forces, the maximum call-out period is nine months. However, for Sponsored Reserves the call-out period might be extended with the agreement of the reservist and the employer.11
Private support operations have moved progressively towards the front line. The first example of such a trend is the £290 million contract signed with the British consortium FASTTRAX in 2001. The deal concerns the outsource of the transport, deployment and evacuation of tanks and other heavy vehicles in international crises for a 20 years period.12
United States
The US Army has laid out a clear definition of contractors, including military companies, as well as the terms and conditions of their deployment and interactions. US Army Regulation 715-9, 'Contractors Accompanying the Force', introduced in 2003, sought to define and govern interactions between regular forces and 'battlefield contractors' in operational environments. Contractors can potentially perform any function on the battlefield except 'inherently governmental functions', which it defined as those 'necessary for the sustainment of combat operations, that are performed under combat conditions or in otherwise uncontrolled situations, and that require direct control by the military command structure and military training for their proper execution'. Contractors who carry out any of these functions may violate the non-combatant status afforded to them under the Geneva Conventions. On the other hand, contractors may conduct logistical support and sustainment operations that do not actively seek to alter the environment within which they are contracted to operate, and will then be regarded as legitimate, non-combatant civilians under the Geneva Conventions. However, the problem is that many PMCs functions do not fall into these categories, nor are they clearly covered by Regulation 715-9.13
With regards to licensing, it is the U.S. state Department that issues licences for assistance (including training) to foreign persons, whether in the U.S.A. or Abroad, in the use of arms under the same export guidelines as for the export of armaments. The International Traffic in Arms Regulations (ITARS) is the key piece of legislation and require the application for licences by companies providing, knowledge, services or good within the military realm with the Departmnet of State's Office of Defense trade Controls (ODTC). Applications are then subjected to a. internal review involving various offices.14 But the licensing process itself is idiosyncratic, as stated by Deborah Avant: 'the Defense and State Department offices that have input into the process vary from contract to contract, and neither the companies nor independent observers are exactly clear about how the process works'.15
In terms of oversight and control, there is a lack of resources and legislation. For instance, In 1998, there was one financial auditor for every $642 million in Pentagon contracts. Today, there is one auditor for every $2.03 billion in contracts. These auditors are not just required to catch false billings and cost overruns, but also to ensure quality.16 Furthermore, Pentagon does not have to notify Congress of PMC contracts worth less than $50 million, a threshold not sufficient for ensuring an effective democratic control, especially considering the practice of splitting up or partially subcontracting the contracts.
The new U.S. law on private military contractors an extremely important legal development. On January 1, 2007, an amendment to the Uniform Code of Military Justice (UCMJ) took effect that places contractors and others who accompany the military in the field under the UCMJ (better known as the court martial system). This means that private contractors may now be subject to court-martial, administrative punishment, or any other provision in the UCMJ. The amendment also applies standards of conduct and military specific offenses contained in the UCMJ, such as Article 92, failure to obey an order or regulation, to civilian personnel serving with the US military in the field.17
Previously, contractors would only fall under the UCMJ if Congress declared war. But the United States has only been involved in five declared wars, and none since the enactment of the current UCMJ.18 The result is that if U.S. military officers came across episodes of suspected contractor crimes, at most, the local officer in charge could request to the employing firm that the individual be demoted or fired. If he thought a felony occurred, the officer might be able to report them on to civilian authorities, that is the local government or the U.S. Department of Justice. But the local government is often failed or too weak to act, while U.S. civilian law was not applied to contractor's crimes even when it potentially could.19
The Military Extraterritorial Jurisdiction Act of 2000 (MEJA) allows for the prosecution of persons 'employed by or accompanying the armed forces' overseas for crimes punishable by imprisonment of more than one year. Those 'employed by . . . the armed forces' is defined to include Department of Defense (DOD) contractors and subcontractors as well as contractors and subcontractors of other federal agencies so long as the contract 'relates to supporting the mission of the Department of Defense overseas'.20However, the application of MEJA would have required a civilian prosecutors back in the US to make determinations of what is proper and improper behaviour in conflicts, go gather evidence, carry out depositions in the middle of warzones, and then be willing and able to prosecute them to juries back home. This would have involved using a limited budget on complex cases thousand of miles outside district, even if they were fortunate enough to have the evidence at hand.21 It appears that only one successful prosecution of a DOD contractor has occurred under MEJA (despite all the incidents we know about); a contractor working in Baghdad pleaded guilty to possession of child pornography in February 2007.22 And previous to that case, the only successful U.S. prosecution of a PMC's employee was that David Passaro, a contractor working for the CIA. Passaro was indicted for assault with a dangerous weapon at a U.S. army base near the town of Asadabad in Afghanistan. As MEJA does not have jurisdiction over non-DoD contractors, he was convicted and jailed under Title 18, section 7(9)(A) of the US Code, which extends federal jurisdiction to US 'diplomatic, consular, military or other US government missions or entities in foreign states,including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership'.23
Now, with the new law, military officers can have UCMJ authority over contractors. So, if they did arrest the accused, it would be up to Department of Justice(DoJ) and DoD to decide who gets him. But the important thing is that now DOD has the potential legal authority, which it didn't have before.24 In June 2008, there has been the first conviction of a PMCs' employee under the UCMJ. The man, accused of assault with a dangerous weapon against another contractor employee, was sentenced by a military judge to five months of confinement.25
However, while it is clear that any military contractor working directly or indirectly for the U.S. military falls under the change, it is not apparent whether those doing similar jobs for other U.S. government agencies in the same warzone would fall under it as well (recalling, for example, that the contractors at Abu Ghraib were technically employed by the U.S. Department of Interior, sublet out to DOD).26 Furthermore, the trial of civilian contractors by courts-martial will likely be subject to challenge on constitutional grounds.27
Recommendations
For a long while, firms and their representatives used to argue that the market would deter or solve whatever bad might happen within the private military industry. But the invisible hand of the market has clearly failed to prevent misconduct thus far. On the other hand, propositions about the abolition of PMCs are unfeasible. A total ban of private military contractors has been advocated by critics who believe that regulating the industry would grant legitimacy to actors illegitimate by their very nature, and, they instead support the idea of re-nationalize the military services provision. But, the extent of the demand for and supply of private military services is such that it would impossible to enforce a ban, which would also most likely push the industry underground.28 In addition, any return to a state monopoly of military functions would take a very long time, making interim solutions necessary.29
Realistic responses to the growth of PMCs have rather to be found at intermediate levels. Options for regulatory regimes of the Private military industry will be now examined.
Registration and Licensing Regimes
National regulatory regimes that combine licence and registration schemes would be a fundamental tool in order to enhance the accountability of the private military industry. Such approach would also prevent PMCs from taking up contracts that run counter to national interests or foreign policy.
National legislation would define the activities for which licences are mandatory and require companies seeking to provide military-related services to foreign clients to register with their home governments and notify them of contracts they are seeking.30
Government should require as a condition to obtain a general operating licence that all PMC' s employees working in conflict zones fulfil certain requirements (such as background checks, command of basic military standards, etc.). Personnel employed for sensitive tasks should also have the necessary security clearances. In addition, laws prohibiting the recruitment of active military personnel by PMCs could help containing the 'brain-drain' of the national militaries.
Regulatory regimes at the national level would be coordinated with those of similar countries as this makes more likely that in one country will be mirrored in another. Coordination if not inter-operational, should regards at the the overall consistency in standards and terminology. Regional organizations as the European Union (EU) and the African union (AU) could play a key role in national coordination in their own aerea of influence., or going a step further, supranational formulation of regulatory regimes.31
Suggestions have also been made for the establishment of a regulatory body for international contracting of private military services. Such a body could be established under the auspices of the U.N. Secretary General's Special Rapportuer, and be in charged of keeping a register of PMCS that conform to agreed standards of operations. By doing so, states and non-states clients could make a better informed choice among suppliers before contracting.32
Another possibility would be for the U.N. to perform auditing functions. But, this is likely to be costly and extremely difficult to realize since it would involve dealing with different legal environment for company regulation in different jurisdiction as well as being dependent on state action for enforcement in case of revealed abuses.33
However it is important to stress that licensing and registration regimes can do just a little if they are not accompanied by adequate systems of monitoring and oversight, as the U.S. case has demonstrated.
International and National legal Responses
As we have seen, any actual international convention is ultimately applicable to the activities of contemporary private military contractors.
Redefining the term 'mercenary' in order to have PMCs covered by these conventions is problematic. First, there are definitional problems. In fact, the distinction between combat and non-combat task is not clear-cut, consequently, a ban on 'mercenary' activity would be hollow since it would leave unaddressed task as training, strategic advice and operational support, all of which have a significant strategic impact. Moreover, direct participation in combat or replacement of regular armies with PMCs is now relatively rare, thus, such a ban would only affect a small part of the private military industry. Second, the amendment of international legislation is slow. Third, once enacted, international legislation is notoriously difficult to enforce.34
Rather than modifying existing convention, at the international level, an important step would be widening the mandate of the International Criminal Court (ICC) in order to make prosecuting corporate entities possible.35
Anyway, most experts agree that national legislation is the most effective instrument to guards against the misconducts by PMCs. If countries that are home to most of the largest PMCs, the United States and other Western countries, take responsibility for the export of security services, this would help ensuring the accountability of private contractors also at the international level. In addition, national legislation is most likely to be enforced.
A part from registration and licensing schemes, at the jurisdictional level, regulation should put private contractors working for all government agencies under that government's civilian code of justice and, more importantly, under the military one. In addition, contractors working alongside national armies should be subjected to the same field rules of regular soldiers. As Singer put it, if a private individual wants to travel to a warzone and do military jobs for profit, on behalf of a government, then that individual agrees to fall under the same codes of law and consequence that regular soldiers, in the same zones, doing the same sorts of jobs, have to live and work by.36
Contracting Practices
Market distortion of the private military industry are both illustrated and exacerbated by current contracting practices.
Government should, fist of all avoid using cost-plus and no-compete/no-bid contracts. They should also require contracts to be in compliance with applicable freedom of information statutes and what are called "contractor visibility" measures, which would list the number of employees tasked with carrying out the functions and what they are being paid. Such requirements would create awareness as well as shine some light onto outrageous billing practices.37
Financial audit must also be contractually mandatory, and any malfeasance must be sanctioned. Audit results have been too often ignored. The most striking example is the U.S. Army's reimbursement to KBR for nearly all of its disputed costs on a $2.41 billion no-bid contract to deliver fuel and repair oil equipment in Iraq, even though the Pentagon's own auditors had identified more than $250 million in charges as potentially excessive or unjustified.38 Cases like this sends a terrible signal not just to the firms directly concerned, but also to their would-be competitors, as well as to the men and women who are supposed to be doing the oversight and investigation.39
Get help with your essay from our expert essay writers...Conclusions
Given the evidences assembled, it seems reasonable to maintain that though some benefits of the outsourcing of military services are real, there are also many controversial issues connected to the use of private contractors
PMCs may give national armies a significant degree of added flexibility and responsiveness, at least in the short term. Whether or not privatization is really cost-effective remains to be seen. In fact, any systematic study on this issue exists because of the inconclusiveness of data. Actually, there is reason to believe the outsourcing may not result in money saving considering the lack of competition and government oversight. Furthermore, cost-plus contracts when combined with lax or absent control give companies incentives for waste and abuse. This situation has no parallel in the best practices of the business world, for the very reason that it runs counter to everything Adam Smith wrote about free markets.40
The recruitment and hiring processes of PMCs employees is largely left to the discretion of the firms. The risk of this is that of hiring personnel with limited skills as well well as questionable background in term of human rights respect. Similarly, there are insufficient controls over who these firms can work for
Hiring private contractors is a very tempting option for governments: they can pursue foreign policy objectives which lack broad public support or compromise international obligations. However, this raise concerns about the erosion of democratic process values. Accountability is an essential characteristic of democratic governments as it ensures power is used in the public interest; when contracting, accountability is greatly diminished.
The widespread recruitment by PMCs of national armies' soldiers make the distinction between active and retired military personnel increasingly blurred. This in turn, may result in diminished public trust in the military. More importantly, the growing dependency of state armies on PMCs may translate in a loss of control.
Lastly, as we have seen, it is also often unclear how, when, where, and which authorities are to investigate, prosecute, and potentially punish crimes committed by PMCs and/or their employees.
Although the use of PMCs raises a series of troublesome questions, there is no doubt that they are here to stay, at least, for the foreseeable future. Besides, meeting security needs with private military solutions is not necessarily bad or impossible if effective policies and smart business sense are used (something that has not been so far).
The push for regulation of PSC has accelerated with the war in Iraq as the new U.S. law demonstrates. The international community should therefore seize the opportunity to capitalize on this momentum.
References
1 Ahmadou & Gumedze (2008), p. 1
2 For the 1998 RFMA Act see: http://www.up.ac.za/publications/gov-acts/1998/act15.pdf
3 Gumedze, 'New Opportunities, New Challenges: The Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Bill, 2006', Institute of security Studies, Pretoria, South Africa, 21 November 2006, http://www.iss.co.za/index.php?link_id=30&slink_id=3861&link_type=12&slink_type=12&tmpl_id=3
4 Ibid.
5 Le Roux, 'South African Mercenary Legislation Enacted, nstitute of security Studies, Pretoria, South Africa, 21 January 2008, http://www.iss.co.za/index.php?link_id=30&slink_id=5421&link_type=12&slink_type=12&tmpl_id=3
6 Ibid
7 Nicoll & Delaney (2007), p. 2
8 British Foreign and Commonwealth Office, 'Private Military Companies: Options for Regulation 2001-02',
9 Norton-Taylor, 'Miliband Urged to Regulate Private Military', The Guardian, 18 February 2008, http://www.guardian.co.uk/uk/2008/feb/18/military.foreignpolicy1
10 Krahmann (2005), pp. 281-282
11 Ibid.
12 BBC News, 'New £290m deal for Army tank carriers', 15 December 2001, http://news.bbc.co.uk/1/hi/uk/1712687.stm
13 Nicoll & Delaney (2007), p. 2.
14 Holmqvist (2005), p.51
15 Singer, (2004a), pp. 538-539
16 Singer, 'Outsourcing the Fight', Brookings Instituion 5 June 2008, http://www.brookings.edu/opinions/2008/0605_military_contractors_singer.aspx
17 'International Law Advisory :Contractors "In the Field" Now Subject to Military Justice', Steptoe &Johnson LLP., 12 March 2007, http://www.steptoe.com/publications-4325.html
18 Ibid.
19 Singer, 'The Law Catches Up to Private Militaries, Embeds', Brookings Institution, 4 Jenuary 2007, http://www.brookings.edu/articles/2007/0104defenseindustry_singer.aspx
20 'Q&A: Private Military Contractors and the Law', Human Rights Watch, http://www.hrw.org/english/docs/2004/05/05/iraq8547_txt.htm
21 Singer, 'The Law Catches Up to Private Militaries, Embeds', Brookings Institution, 4 Jenuary 2007, http://www.brookings.edu/articles/2007/0104defenseindustry_singer.aspx
22 Elsea & Serafino (2007), p. 19
23 Human Rights Watch, 'Q&A: Private Military Contractors and the Law:States Have an Obligation to Prosecute Perpetrators of War Crimes in their Courts', Global Policy Forum, 21 October 2004, http://www.globalpolicy.org/security/issues/iraq/attack/law/2004/1021Q&A.htm.
24 Singer, 'Frequently Asked Questions on the UCMJ Change and its Applicability to Private Military Contractors', Brookings Institution, 12 January 2007, http://www.brookings.edu/opinions/2007/0112defenseindustry_singer.aspx
25 CBO Paper (2008), p. 23
26 Singer, 'The Law Catches Up to Private Militaries, Embeds', Brookings Institution, 4 Jenuary 2007, http://www.brookings.edu/articles/2007/0104defenseindustry_singer.aspx
27 Elsea & Serafino (2007), p. 21
28 Holmqvist (2005), p. 42
29 Dickinson (2006), p. 387
30 Jennings (2006), pp. 48-49
31 Ibid., p. 50
32 Singer (2004a), p. 545
33 Holmqvist (2005), p. 46
34 Ibid., pp. 44-45
35 Jennings (2006), p.51
36 Singer, 'The Law Catches Up to Private Militaries, Embeds', Brookings Institution, 4 January 2007, http://www.brookings.edu/articles/2007/0104defenseindustry_singer.aspx
37 Singer (2004b), p.17
38 Glanz, 'Army to Pay Halliburton Unit Most Costs Disputed by Audit', The New York Times,27 February 2007, http://www.nytimes.com/2006/02/27/international/middleeast/27contract.html
39 Singer (2004b), p. 20
40 Ibid.
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