Huma T. Yasin, Playing Catch-up: Proposing the Creation of Status-based Regulations to Bring Private Military Contractor Firms Within the Purview of International and Domestic Law

• Citation: Vol. 25 No. 1
• Publication year: 2010

PLAYING CATCH-UP: PROPOSING THE CREATION OF STATUS-BASED REGULATIONS TO BRING PRIVATE MILITARY CONTRACTOR FIRMS WITHIN THE PURVIEW OF INTERNATIONAL AND DOMESTIC LAW

Huma T. Yasin*

INTRODUCTION 413

1. EXAMINING THE BLACKWATER PROSECUTION (OR LACK THEREOF) 417

   1. CPA and Beyond: Limiting Iraq’s Jurisdictional Reach 417

   2. Domestic Prosecution of Blackwater 421

2. DO PCMFS FIT WITHIN AN INTERNATIONAL OR DOMESTIC REGULATORY FRAMEWORK? 423

   1. The International Framework 424

      1. A Brief History and Definition of Mercenarism 424

      2. Mercenaries Distinguished from PCMFs 426

   2. Regulation or Extraterritorial Jurisdiction in the United States? 427

      1. Special Maritime and Territorial Jurisdiction Statute 428

      2. Military Extraterritorial Jurisdiction Act 429

      3. Uniform Code of Military Justice 430

3. UNDERSTANDING THE PCMF ENTITY 431

   1. The Origins and Rise of PCMFs 432

   2. Factors Leading to the Growth of PCMFs in Iraq 434

   3. Definitional Abysses 435

   4. Privatizing State Power 438

   5. The Rise of Transnational Corporations 442

   6. The Convergence of Three Variables 443

4. DISTINGUISHING BETWEEN DIFFERENT TYPES OF PCMFS 445

   1. Military Provider Firms 446

   2. Military Security and Defense Firms 451

   3. Military Intelligence Firms 454

   4. Military Consultant Firms 457

      * LL.M. Candidate, Southern Methodist University School of Law (2012); J.D., University of Oklahoma College of Law (2005). Many thanks to Professor Anthony Colangelo for reviewing and commenting on multiple drafts, and to Courtney Zaghari-Mask, Raniyah Ramadan, and Tariq Yunus for their edits.

   5. Military Logistics Firms 460

   6. Military Support Firms 463

5. A SURVEY OF MODERN THEORIES OF PCMF REGULATION 464

   1. Extension of the Term Mercenary 464

   2. Corporate Self-Regulation 466

   3. Incorporating International Law Against Corporations 468

   4. State Doctrines of Responsibility 470

   5. Contract Regulations 473

   6. Market Regulations 477

   7. Extension of the Military Extraterritorial Jurisdiction Act 480

   8. Creation of an International Body 482

6. A STATUS-BASED FRAMEWORK THAT PROVIDES PCMF ACCOUNTABILITY AND PROTECTION 482

   1. Multilateral Treaty and Enforcement: Nuts and Bolts 485

   2. Creating Categories Defining the Type of PCMF: Addressing Status 486

   3. Determining Codes of Acceptable Conduct, Accountability,

      and Protection 488

   4. Registering, Auditing, and Providing Ongoing Oversight and Assistance 489

   5. Creating a Domestic Mechanism of Enforcement 493

   6. Incentives for States to Participate 494

CONCLUSION 495

The members of the [private military security] firm were polite and generally helpful, but the ambiguity between who they were and what they were doing always hung in the air. They were employees of a private company, but were performing tasks inherently military. It just did not settle with the way [Americans] tended to understand either business or warfare. However, there they were, simply doing their jobs, but in the process, altering the entire security balance of

the region.1

INTRODUCTION

September 16, 2007, began as a typical hot day in Baghdad, Iraq.2 Nisour Square, the once-upscale section of Baghdad, bustled with Iraqis commemorating the month of Ramadan, the holiest month of the Islamic calendar.3 Shoppers bravely battled the oppressive heat to make preparations for a festive meal, signifying the end of the fast.4 The usual midday traffic crowded the streets.5 Around noon, armed members of a security-detail team entered Nisour Square in four large armored vehicles with 7.62-millimeter machine guns mounted atop.6 They were armed with an SR-25 sniper rifle, M-4 assault rifles, M-240 machine guns, grenades, and grenade launchers, among other weapons.7 The security convoy entered the congested intersection at Nisour Square, compelling Iraqi traffic police to stop local traffic abruptly and to allow the convoy to proceed.8 Without warning, in the middle of the one-way street, the convoy made an abrupt U-turn and sped directly into oncoming traffic.9 Suddenly, and seemingly without provocation, members of the security team opened fire upon unarmed civilians.10 The team proceeded to

1. P.W. SINGER, CORPORATE WARRIORS: THE RISE OF THE PRIVATIZED MILITARY INDUSTRY vii (3d ed.

   2008). This quote describes the privately contracted military firms’ involvement in the Balkans in the 1990s. Over the last decade, we have made little progress in understanding and categorizing these entities.

2. JEREMY SCAHILL, BLACKWATER: THE RISE OF THE WORLD’S MOST POWERFUL MERCENARY ARMY 3

   (2008).

3. Id. at 3–4.

4. Id.

5. Id.

6. Id. at 3.

7. Government’s Opposition to Defendant’s Motion to Dismiss for Lack of Jurisdiction at 4, United States v. Slough, 677 F. Supp. 2d 112 (D.D.C. 2009) (No. 08-360) (RMU).

8. SCAHILL, supra note 2, at 4.

9. Id.

10. Id.

    indiscriminately shower bullets upon women and children retreating to defensive positions.11

    
    

    The operator of one vehicle targeted by the Wild West-style gun battle was a twenty-three-year-old medical student chauffeuring his mother.12 The security team shot the unarmed civilians in the vehicle point-blank in the head and continued firing at least forty bullets upon the vehicle, causing it to explode.13 The two bodies were left completely charred and unrecognizable. Dental records and the remains of one of the victim’s shoes later confirmed their identities.14 Additionally, Little Bird helicopters arrived to aid the convoys and began firing in like fashion on the cars.15 The attack lasted fifteen minutes (despite the alarmed pleas of “cease fire!”), leaving seventeen Iraqis dead in the same streets which moments before buzzed with commerce.16 A military review concluded there was not a single insurgent among the fatally wounded Iraqis,17 who now lay scattered, falling wherever they lost their battle to reach a safe haven.

    
    

    The security convoy conducting the mission was not an elite covert military unit; in fact, this security detail had no direct association with any state- sanctioned military force. The Nisour Square massacre was carried out solely by Blackwater, a privately owned security aide to the United States, in conjunction with a lucrative security and defense contract with the State

    Department.18 While incidents of targeted violence against Iraqi civilians were

    neither unique nor isolated, this was the first widely reported shooting spree that was conducted on such a large scale against unarmed civilians, perpetrated exclusively by a privately contracted military firm (“PCMF”).19 The aftermath

    
    

11. Id. at 4–8.

12. Id. at 4–6.

13. Id.

14. Id.

15. Id. at 8.

16. Id. at 3–6.

17. David Johnston & John M. Broder, F.B.I. Says Guards Killed 14 Iraqis Without Cause, N.Y. TIMES, Nov. 17, 2007, at A1.

18. The fact that Blackwater was employed by the State Department and not the Department of Defense was at issue in the government’s prosecution of the case. See infra Part I.

19. See, e.g., E.L. Gaston, Note, Mercenarism 2.0? The Rise of the Modern Private Security Industry and Its Implications for International Humanitarian Law Enforcement, 49 HARV. INT’L L.J. 221, 229 (2008). PCMFs have been at the heart of many different small scale controversies involving criminal misconduct and human rights abuses. Id. In the 1990s, employees of DynCorp, a security company hired by the United States

    in Bosnia, were accused of a sex-trafficking scandal. Id. PCMFs were involved in the Abu Ghraib prison abuses. Id. Employees of Aegis, a British corporation, were videotaped arbitrarily shooting Iraqis. Id. In February 2007, a Central Intelligence Agency (“CIA”) contractor was charged for beating an Afghan man to

    following the incident catapulted PCMFs into the public spotlight, thereby opening a Pandora’s box of legal questions.20 Who were these armed, uniformed personnel rivaling a small army and performing quasi-military functions? Who—or alternatively, what state or entity—was responsible for

    such widespread and horrific crimes committed against unarmed civilians? What legal protections, if any, should these pseudo-soldiers be accorded?

    
    

    As of March 2010, the Department of Defense (“DOD”) estimated there were 207,600 DOD contractors supporting troops in Iraq and Afghanistan.21 This estimate does not include contractors employed by other U.S. agencies.22 At least 60 different PCMFs are operating in Iraq,23 hiring nationals of at least 30 different countries;24 26% of the contractor workforce is comprised of U.S. citizens,25 56% are third-country nationals,26 and the remaining 18% of contractors are Iraqi citizens.27 The DOD “increasingly relies upon contractors

    to support operations in Iraq and Afghanistan, which has resulted in a DOD workforce that has 19% more contractor personnel (207,600) than uniformed

    
    

    death during an interrogation. Id. This is by no means a comprehensive list of recorded abuses conducted by PCMFs; the actual number of abuses is unknown because each PCMF has a different internal mechanism of recording and punishing such behavior. See Laura A. Dickinson, Military Lawyers, Private Contractors, and the Problem of International Law Compliance, 42 N.Y.U. J. INT’L L. & POL. 355, 380–82 (2010). Furthermore, misconduct is frequently underreported to the government. Id.

20. “An investigative team made up of officials from Iraq’s Interior, National Security, and Defense

    ministries said in a preliminary report that ‘the murder of citizens in cold blood in the Nisour area by Blackwater is considered a terrorist action against civilians just like any other terrorist operation.’” SCAHILL, supra note 2, at 14. Iraqi investigators were denied access to the Blackwater contractors, despite Iraq’s explicit statement of intent to prosecute the criminal acts. Id.

21. MOSHE SCHWARTZ, CONG. RESEARCH SERV., R 40764, DEPARTMENT OF DEFENSE CONTRACTORS IN

    IRAQ AND AFGHANISTAN: BACKGROUND AND ANALYSIS 5 (2010).

22. Id. Analysts have called the reliability of the DOD data into question. The Government Accountability Office revealed “that the DOD’s quarterly contractor reports were not routinely checked for accuracy or

    completeness.” Id. at 4. Further, the DOD did not start collecting contractor data until the second half of 2007, despite employing contractors from the onset of operations. Id. Additionally, keeping track of contractors is a tremendous...