Beating Blackwater: using domestic legislation to enforce the international code of conduct for private military companies.

In the past decade, state use of private military companies (PMCs) has greatly expanded, sparked in large part by U.S. reliance on contractors in the wars in Afghanistan and Iraq. But several of the most horrific human rights abuses of the wars exposed the absence of a regulatory regime governing the conduct of PMCs, prompting an international movement to establish some kind of legal framework to promote accountability. After years of diplomatic negotiations, this resulted in 2010 in the creation of the International Code of Conduct for Private Security Service Providers (ICoC), which delineates the obligations of private companies. (1) The ICoC Association (ICoCA) was subsequently launched in September 2013 to certify that companies are meeting the Code's standards.

But while the development of a monitoring body is encouraging, ICoCA suffers from a critical shortcoming: it lacks any kind of serious enforcement mechanism. Because most commentary has focused on the Code's importance in codifying a new area of international law, (2) few have recognized that ICoCA's actual effectiveness hinges on the willingness of states to enact corresponding domestic legislation that can provide a system of enforcement. This Comment highlights this issue and argues that discrete domestic legal reforms modeled on the Foreign Corrupt Practices Act (FCPA) and International Traffic in Arms Regulations (ITAR) would enable the United States to galvanize compliance with the ICoC and ensure that the Association is able to serve its function.

Part I surveys the growth of private military companies and recent international efforts to regulate the industry. Part II argues that the ICoC suffers from the absence of a viable method of enforcement, and ICoCA, as it currently stands, provides an insufficient oversight mechanism. It shows how the alternative methods of enforcement that have been proposed thus far are either infeasible or of limited efficacy. Part III explores how the United States could bolster ICoCA through domestic legislation that draws from the approaches of the FCPA and ITAR. It also discusses how this could, in the long run, trigger changes in behavior on a global level.

  1. THE NEED FOR AN INTERNATIONAL APPROACH TO REGULATION

    After years of being maligned as mercenaries, private military contractors reemerged following the end of the Cold War. Weak states with few military capabilities turned to PMCs for help, (3) and even the United States hired private firms to supplement its military operations in the 1990s in order to lower costs. (4) This trend accelerated dramatically following the U.S. invasion of Afghanistan in 2001. Over the course of the Afghanistan and Iraq wars, the involvement of PMCs ballooned. Their role expanded from support activity to essential military functions, including combat, (5) and by the later years of the wars, half of total U.S. personnel deployed in Iraq and Afghanistan were private contractors. (6) However, this extensive involvement by private forces gave rise to some of the most heinous human rights abuses of the wars, including the 2007 Nisour Square shooting (7) and the Abu Ghraib prison scandal. (8) Upon coming to light, these incidents provoked domestic and international outrage and highlighted the legally ambiguous space in which contractors operated.

    In response, the United States enacted several reforms to ensure that contractors were held accountable for their actions. (9) The Military Extraterritorial Jurisdiction Act (MEJA), originally passed in 2000, was expanded in 2004 to allow contractors supporting Defense Department missions abroad to be prosecuted for crimes that would result in more than one year of imprisonment if they were committed within the United States. (10) And in 2007, Congress amended the Uniform Code of Military Justice (UCMJ) to subject private contractors to the system of courts-martial should they engage in misconduct. (11) Few individuals have been prosecuted under the new provisions, but the reforms went some way toward bringing U.S. military contractors under U.S. law. (12)

    The issue, however, has grown well beyond the activities of contractors employed by the United States. The U.S. wars have changed the landscape elsewhere by giving rise to massive multinational PMCs and also legitimating their use. This global industry is now estimated to have gross revenue of over $100 billion per year, (13) and these companies are not closing shop just because the U.S. wars are ending. Instead, these sophisticated enterprises have shifted their focus to other lucrative regions. (14)

    For this reason, the absence of a clear legal framework to govern the conduct of multinational PMCs is highly problematic. (15) Domestic legal reforms, such as those enacted by the United States, have helped to hold private contractors participating in U.S. military operations accountable, but they do little to regulate the global PMC industry for two reasons. First, MFJA and the UCMJ can only be used to prosecute individuals. When companies providing military services act illegally, no clear statutory basis exists to hold the whole company liable. (16) Additionally, these laws fail to address the industry's increasingly global presence. The United States is no longer the only, or even the primary, consumer for private security providers. Consequently, laws that impose liability only for misdeeds occurring alongside Department of Defense missions do not adequately constrain the conduct of PMCs abroad.

    Accordingly, since the mid-2000S, the international community has sought to fill the void by constructing a global regime that can better monitor these companies, ensure compliance with human rights norms and international humanitarian law, and hold violators accountable. The first such effort was led by the Swiss government and the International Committee of the Red Cross, which resulted in the completion of the Montreux Document in 2008. (17) The document provides a list of best practices that states should implement to manage PMCs. (18) Forty-nine countries have become signatories to date. (19) Yet Montreux's efficacy has been limited both because it does not create any binding commitments and because it is directed at PMC behavior in armed conflicts, which constitutes only a fraction of PMC activities. (20)

    Montreux was followed by a more ambitious multi-stakeholder initiative, which led to the creation of the International Code of Conduct for Private Security Service Providers. The ICoC outlines the obligations of private security companies under international law and specifies rules that ought to govern the use of force and vetting procedures for subcontractors. (21) Unlike earlier initiatives, the ICoC has been signed by over 708 companies worldwide and has garnered significant support from states and nongovernmental organizations. (22) The creation of the Code is a promising step in the effort to ensure that private military companies respect human rights and comply with international law. Nonetheless, its current effectiveness is limited because it lacks a viable enforcement mechanism.

  2. THE INADEQUACY OF ICOCA

    If the ICoC is to fulfill its goal of constructing a global governance system to regulate private military companies, it must be meaningfully enforced. The ICoC Association was launched in September 2013 in order to provide an oversight mechanism for the Code. States and human rights organizations lauded the formation of ICoCA as a groundbreaking step in regulating the industry. The State Department even announced that it "anticipates incorporating membership in the ICoC Association as a requirement in the bidding process" for all future diplomatic security contracts. (23) Membership is open to all companies, civil society groups, and states that agree to adhere to the Code.

    The Association is led by a Board of Directors empowered to monitor and certify the compliance of signatory companies. (24) The Board is chosen by the vote of all members and consists of twelve individuals, with four members coming from PMCs, four from civil society organizations, and four from states. (25) ICoCA's charter calls for in-field assessments of company practices and consultation between the Board and companies whose practices are found to violate the Code. (26) It also establishes a complaint procedure through which allegations of misconduct can be reported. (27) While these are surely positive developments, it is difficult to see how they will be able to engender compliance with the Code's strict requirements without any punitive mechanisms. The absence of a judicial body or forum where PMCs can be held accountable if they persist in violating norms makes adherence to the Code largely voluntary.

    Various options have been proposed as alternative mechanisms to enforce the ICoC. The first of these is the adoption of a binding multilateral treaty that would require signatories to provide for domestic enforcement of the ICoC provisions. (28) While such a treaty would likely be the most rigorous method of bolstering the ICoC, it is not a viable option for the near future. The international consensus that is required to achieve such a comprehensive treaty simply does not exist at this point, as demonstrated by the limitations of the Montreux effort.

    Another option that has been floated is to leverage...

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