by Colin Jones
On April 4, 2004, a gun battle broke out between Muqtada al-Sadr’s militia, Jaish al-Mahdi, and a group of men guarding a Coalition Provisional Authority headquarters in al-Najaf, in the Shi’i south of Iraq. Most men fighting, shooting, and killing Iraqis to reverse the assault on the compound were neither U.S. soldiers nor marines nor members of the Multi-National Forces-Iraq (MNF-I), but were Blackwater private security contractors, tasked with guarding the building and its surrounding area. In the firefight, a Marine corporal on duty repairing radio communications requested and took orders from a Blackwater contractor. The corporal opened fire on the Iraqi crowd, recalling that the first burst from his M243 SAW struck an Iraqi carrying an AK-47. Casualties ranged from 20 to 30 dead Iraqis, with over two hundred wounded. The contractors accomplished their task: the building remained in friendly hands. The Marine corporal suffered a gunshot wound to the back, and was evacuated by a Blackwater-owned and staffed helicopter.
How did the United States find itself in a position where private security contractors fired thousands of small-arms rounds into a crowd of Iraqis in one of Islam’s holiest Shi’i cities? Taking in mind this question and others, this essay will analyze legal, military, and political issues regarding PSCs in Iraq from 2003 to 2011 as a case study. To conclude, the essay will offer lessons learned concerning the use of PSCs from this case study.
The definition of a private security contractor is contested. This paper will use a basic definition: a private security contractor is an employee of a private corporation that guards personnel, facilities, or properties, and any other functions which necessitate the use of armaments through a governmental contract. Further, this paper will only focus on armed PSCs; PSCs that train and supply military forces are a separate issue. Who are these contractors? For many U.S. firms, the employees are generally former Special Forces officers, known as Tier One operators. With the explosion in contractors in Iraq, however, many firms have and do hire former commissioned and non-commissioned officers, known as Tier Two operators. And as PSC usage grew, firms hired Iraqis or other foreign nationals, known as Tier Three operators. Overall, they can be American, British, Fijian, Colombian, Indian, Chilean, and more. Most are exceptionally well trained, but some are not. They work for national or multi-national corporations. They are well-armed. The following section will attempt to clarify PSCs’ status under international law, U.S. law, and Iraqi law.
Two categories exist regarding people under the laws of war: combatants and non-combatants. Under the Geneva Conventions of 1949, the laws of war apply to armed forces, militias, resistance movements, and “persons who accompany the armed forces without actually being members thereof.” However, the people listed as accompanying the armed forces do not provide for categorization of PSCs. As such, PSCs do not fit into any parts of the convention and can be considered non-combatants according to the laws of war. For example, if a non-combatant engages in hostilities, he loses the protections of the laws of war, including prisoner of war status, even if he is accompanying, as a civilian, an armed force. It is unclear if contractors always fit the definition of non-combatant.
Other international law issues arise: if the contractor is engaged in a civil police role, then the contractor may be authorized to use force for personal and property protection. If this engagement amounts to combat, though, then they would become lawful enemy targets during battle. Or, if the conflict is termed a non-international armed conflict, then local law would apply to the contractor and the contractor, if captured, would be entitled to basic provisions set out under Common Article 3 of the Geneva Conventions.
However, the Convention on Mercenaries in 1989, styled after an African treaty in 1977, created a third category of actors under international law for those who signed the convention. The convention outlines a specific, six-part definition for a combatant to be declared a mercenary. The mercenary:
a) is specially recruited locally or abroad in order to fight in an armed conflicts;
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;
d) is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflicts;
e) is not a member of the armed forces of a party to the conflict; and
f) is not sent by a state other than a party to the conflict on official mission as a member of the armed forces of the said state.
PSCs do not necessarily fulfill all six parts of this definition. Further, only 30 states ratified this convention and thus are the only states covered by its mandate; its implementation and enforcement is non-existent. To call a PSC a mercenary would be legally incorrect, regardless the moral implications of that word.
PSC status under U.S. law is more complex. PSCs of U.S. citizenship working under DoD contracts, including any prime contracts that are sub-contracted down multiple layers, are mandated to fall under the jurisdiction of the Military Extraterritorial Jurisdiction Act of 2000 (MEJA, amended in 2004), the Uniform Code of Military Justice (UCMJ, amended in 2007), or the Special Maritime Territorial Jurisdiction (amended in 2001). The MEJA, UCMJ, and SMTJ have been updated since 2001 to potentially include non-DoD contractors under their jurisdiction. This is explored further below.
The MEJA covers contractors “employed by” DoD but also covers those “accompanying the Armed Forces outside the United States.” “Employed by” includes a contractor of “any other Federal agency…to the extent that such employment relates to supporting the mission of the Department of Defense overseas.” Unfortunately, “supporting the mission” is not specifically defined, and not all PSCs that worked in Iraq necessarily supported the DoD mission. Examples might include contractors supporting USAID by overseeing security of convoys delivering food to them, or if PSCs guard a non-DoD official on walkabouts in Baghdad. Further specificity would be necessary to define “supporting the mission” in order to provide jurisdictional cover regarding ambiguous cases. The jurisdiction is not airtight, and contractors charged with criminal offenses can slip through the cracks depending on the interpretation of “employed by” and “supporting the mission”.
The UCMJ was amended in the NDAA 2007 (section 552) with an insertion of six new words, vital to interpreting its jurisdiction. Previously, the UCMJ only applied in a “time of war” to persons “serving with or accompanying an armed force in the field.” Following the 2007 amendment, “war” was struck and changed to “declared war or a contingency operation.” This change does mean that the UCMJ covered the operations in Iraq following the turnover of power to the Iraqi government in 2008. It also applies to operations in Afghanistan since its passage. Unfortunately, the same definitional issues exist similar to those of the MEJA: the details of the contractor, the mission, and the location of work can determine whether the UCMJ is applicable to the contractor or not.
Further, the Special and Maritime Territorial Jurisdiction of the U.S. covers any and all contractors working at embassies and military bases owned by the United States overseas. David Passaro, a CIA contractor, was charged with and convicted of assault due to the death of a detainee in his care on a remote U.S. base in Afghanistan. His actions fell directly under this jurisdiction and as such he was prosecuted for crimes.
The ambiguity surrounding the jurisdiction of U.S. law surrounding PMCs working for non-DoD contracts highlights a serious issue: are these PMCs accountable under U.S. law? Legally speaking, the answer is yes: it appears that the MEJA, UCMJ, and SMTJ could cover contractor operations overseas, including non-DoD contractors. However, that ‘could’ does not mean they will every time. Nor does it recognize the fact that dozens of violent incidents between contractors and Iraqis, both civilians and combatants, occurred between 2003 and 2011 with nearly no criminal or military cases heard. Iraqis have few actions for justice: it is difficult to bring a suit against a contractor you may never see, such as while driving your car and being shot as a potential threat, nor was it easy to navigate the byzantine bureaucratic system that existed in Iraq in order to bring cases against potential violations. These difficulties make it less likely that justice can occur. That said, civil suits have been raised, and settled out of court.
The murkiness of PSC jurisdiction continues with Iraqi law, where jurisdiction over PSCs depends specifically on definitions in Iraqi law, law that was written primarily by the U.S. On June 27, 2004, one day before exiting Baghdad, Paul Bremer signed an updated version of CPA Order 17. It stated that “Contractors shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contracts” and that “Contractors shall be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto.” PSCs were defined under “Contractors” writ large as:
’Private Security Companies’ means non-Iraqi legal entities or individuals not normally resident in Iraq, including their non-Iraqi employees and Subcontractors not normally resident in Iraq, that provide security services to Foreign Liaison Missions and their Personnel, Diplomatic and Consular Missions and their personnel, the MNF and its Personnel, International Consultants and other Contractors.
PSCs working in Iraq under any contract possessed immunity from Iraqi law, and as prosecutions under international law are rare and U.S. law was and is vague on jurisdiction, PSCs largely operated without checks. They could commit crimes at will, including murder. Until removal of this Order by the Iraqi parliament, this definition was mandated to stay in force as long as the MNF-I forces were recognized by the United Nations, which they were until the Status of Forces Agreement (SOFA) was signed in 2008 between the Bush administration and the al-Maliki government.
Article 12 of the SOFA seemingly clears up the debate: “Iraq shall have the primary right to exercise jurisdiction over United States c ontractors and United States contractor employees.” Article 3 mandates that contractors cannot abscond from Iraq without permission, a common tactic companies used when their PSCs got into trouble or thought they were in trouble. However, the SOFA refers only to contractors operating with the “United States Forces”, which thus excludes contractors working for civilian agencies. Therefore, the SOFA failed to clarify jurisdictional issues; no Iraqi laws cover DoS or USAID-contracted PSCs. It is unclear whether Iraqi law applies to all contractors in all instances.
Iraqi laws do mandate who can do contractual business in Iraq. PSCs must receive a business license from the Ministry of Trade, and must then register with the Ministry of the Interior, which has final say on approval of PSC operations. The Ministry of the Interior, following the massacre at Nisoor Square in 2007, revoked Blackwater’s license; the company no longer works in Iraq in any capacity. PSCs now must operate with a visible Iraqi-issued ID card on their person while emblems must be visible on their vehicles and person as well. Few incidents involving PSCs occurred since 2009 due to these efforts and growing popular awareness in the U.S. and Iraq regarding PSC abuses. A reduction in convoy movement and static security at U.S. bases also decreased the rate of incidents between Iraqis and Americans, as fewer opportunities for fighting emerge.
Why does jurisdiction matter? Such a strong emphasis is placed on legal issues because the United States is a nation that purports to abide by its national laws, the laws of the international community, and the laws of states in which it operates, with attendant exceptions recognized by international treaties. Beyond that, the United States is the oldest, most well-developed democracy, and if it would act as a shining beacon of hope for those mired in the darkness of authoritarianism and dictatorship, then it must abide by laws to demonstrate that it is truly worthy of democratic emulation. The lack of accountability in court cases and prosecutions also detracts from a major selling point the U.S. highlights: that of the role of justice.
While the legal issues are convoluted, the PSCs military status is clear: they are not part of the U.S. military force and they may not fall under the chain of command; it is unclear whether the 2007 amendment the UCMJ allows the military to issue orders to any or all contractors. With that said, PSCs present a number of military and political issues. The first regards “inherently governmental functions”: what are they and do PSCs carry them out?
Briefly, the definition of an inherently governmental function is one that seeks to “‘determine, protect, and advance United States economic, political, territorial, property, or other interests by military or diplomatic action, civil or criminal justice proceedings,’ contract management, and functions that can significantly affect the life, liberty, or property of private persons.’” Inherently governmental functions are listed here. Careful reading, however, indicates that “this list is not all inclusive,” but all disagreements are to be overseen by the Office of Budget and Management. DoD and GAO consider the use of armed security escorts as perfectly valid (34) regarding governmental functions. The Wartime Contracting Commission relates a vital counterpoint: instead of outlining specific tasks that must be, should be, or should not be governmental, tasks should be analyzed regarding situational and operational risks. If protecting an ambassador in Iraq will be dangerous, perhaps that function should not fall to a commercial organization.
Given that PSCs might perform these functions, how do they perform them? They guard ‘nouns’ writ large: buildings, facilities, air fields, persons, vehicles, and more. In general, the DoD and DoS use armed PSCs for three purposes: static security, mobile security, and personal security. Whatever function the contractors are performing, though, they faced and will face serious violence in Iraq.
All of that being said, there are numerous military advantages to using PSCs. In Iraq, because many troops were needed for kinetic operations due to the low number of troops, PSCs allowed forces to focus on warfighting. Veterans with skills largely impractical for civilian life were given a second chance to use them for profit (and country, some asserted: “We are Americans first, contractors second”). PSCs are often more culturally aware than the general soldier. PSCs are experts in warfighting, intelligence, communication, operations, and more. PSCs are often cheaper in the long-term compared to a deployed U.S. soldier of equal skill, though this is a retrospective benefit, given that the DoD assumed the U.S. would leave Iraq permanently in 2004. Hiring local Iraqis to perform as PSCs pulled some possible antagonists from the streets and put them into the employ of the U.S.; hiring former Iraqi soldiers reduced the insurgents’ capability to use their expertise.
On the other hand, numerous disadvantages emerge, some alluded to previously. Privatization of security comes with a price: who the PSCs are and what they do says much about the campaign, politics, and choices of the government. Tangled linkages between company heads, government officials, and retired officials led to no-bid contracts awarded without serious competition. Operational risks proliferate regarding the mission; in Iraq the mission was to establish a stable nation-state not allied against the U.S. But contractor decisions swayed the Iraqi street when abuses were alleged and PSCs remained mostly unaccountable. Contracting in general leads to waste, fraud, corruption, and abuse through sub-contract layering, where the price rises significantly as contractors factor in profit. Pumping in huge amounts of cash can inflate the local economy, spiking the price for specific goods. Oversight was dismal and remains so; while contracting increased 78% from the late 1990s to 2007, oversight auditors decreased by 40%.
Contracting can work in direct contradiction with COIN operations: if the army is attempting to ‘win the hearts and minds’ of Iraqis, then contractors shooting at drivers can lead to further Iraqi grievances and increased attacks on U.S. troops. Contractors are not always the cost-effective tool they are portrayed to be by the industry, especially concerning training of indigenous forces. Hiring locals can also backfire as these contractors are regarded as “collaborators” by nationalist indigenous forces, seeking them out for assassination.
Some of these advantages and disadvantages reflect on political issues PSCs raise, and also solve. The paramount issue regards who the PSCs represent in-country. In Iraq, it was stated that “[f]or Iraqis there is no distinguishable difference between private armies and foreign troops, except that the [contractors] are operating with impunity.” Other times, Iraqis assumed that contractors were CIA operatives, notably in the Blackwater ambush and mutilation in Fallujah. If PSCs were seen largely as ‘Americans’ in general, then every negative encounter reflected as such on the U.S. Given that the purpose of counterinsurgency is to act legitimately and support the creation of a legitimate government, that task becomes infinitely harder when the counterinsurgent force is perceived as illegitimate, whether they are a third-party or of the host government.
Another political issue involves the loyalty of the contracting force. U.S. soldiers, diplomats, and aid workers receive their income and support directly from the U.S. government, implying that they have a significant stake in the system. While some of these men and women perform their duty for their country, some do so for benefits or prestige. On the contracting side, PSCs work directly for their company, which is beholden to its commercial furtherance and its profits. Therefore, it is reasonable to aver that U.S. security firms operate the same way: some perform their duty for their country, and others for profit. While numerous companies profess good intentions, it is unclear whether those words translate into actions.
Beyond loyalty is the issue of accountability on a political axis. A 2008 CRS report states that “in a broader foreign policy context, the State Department’s alleged protection of Blackwater as its employees act as if they are above Iraqi law and kill Iraqis with impunity makes it difficult to advocate for such issues as the importance of the rule of law and human rights as U.S. foreign policy objectives.” As this undercuts the U.S.’ assertion of the rule of law and its benefits, it thereby undermines foreign policy goals. Accountability, under international, U.S., and host-nation law is vital for the foreign policy goals the U.S. asserts: that of liberty, freedom, equality, and democracy as the best paths for growth and legitimacy of the people and government. This accountability cannot simply be in words, but must also be in deeds; finding justice for many of those Iraqis killed between 2003 to 2008 by PSCs and U.S. troops would bolster the U.S. foreign policy case.
Iraqis hired as PSCs possess military skills, some elite. Efforts to merge the Sons of Iraq (of the Anbar Awakening) into the government have stalled as has the wider political process following the March 2010 elections. If Iraqi PSCs and the Sons of Iraq perceive success only by fighting for alleviation of their grievances as opposed to working within the system, they are armed and capable of inciting further violence inside Iraq and potentially elsewhere, if they sell their services to other corporations and nations.
The U.S. is widely disliked in Iraq and in the region, and even though DoS’ upcoming relationship with Iraq is similar to that of other nations, it will retain a massive embassy capability; charges that the U.S. is attempting to control Iraq or influence it unduly will continue. The U.S. has spent eight years in Iraq with success and failure. Thousands of Americans have died and untold numbers of Iraqis as well. The DoS is well-positioned to inaugurate a normal diplomatic relationship between the U.S. and Iraq, but a relationship between former belligerents is unlikely to be simple or easy; PSCs further complicate this.
There are a number of important lessons learned from the U.S.’ experience with PSCs in Iraq that have significant bearing on its pursuit of foreign policy goals. First, PSCs provide useful jobs to U.S. citizens, third-party nationals, and local nationals, but it is uncertain where this corporate-security industry will lead to next, either in their use by the U.S. government, by the Iraqi government, other governments, or even by private individuals and corporations. Similarly, the loyalty of PSCs are ambiguous, but in general they are beholden to their shareholders and their profits, which may lead their operations into new regions and issues, both positively and negatively.
PSCs are cost-effective in the long-term compared with troop deployment, but oversight, accountability, and legal problems pervade the industry. The International Stability Operations Association created a voluntary Code of Conduct of PSCs, but the three major PSCs, Academi (formerly Blackwater/Xe), Triple Canopy Inc., and Dyncorp, did not sign it, nor does it include a legal or binding enforcement. The legal accountability problems outlined regarding international, U.S. and Iraqi law lead to highly effective mobilizing charges that the U.S. is avoiding the rule of law in order to shield its citizens and companies with immunity. The rule of law is vital to U.S. counter-insurgency doctrine and foreign policy pronouncements, and this double-standard is too egregious to overlook.
PSCs are widely despised by Iraqis when the contractors are Americans or third-party nationals. Even some local Iraqis are loathed by their national peers for working as ‘collaborators’; the town of Saqor near Tikrit is known now as “Traitor Town” for its citizens’ routine work with the Americans. PSC operations directly contradicted counterinsurgency operations in Iraq, damaging the U.S.’ strategy due to tactical differences in the battlespace. Unity of effort is key to counterinsurgency, and PSCs were not part of the chain of command, limiting the effectiveness of counterinsurgency.
PSCs provide a strong surge capability when military forces are stretched and need relief to free up forces for warfighting. That said, an over-reliance on contractors for logistics has decreased DoD’s ability to provide for itself in war zones, as nearly 50% of DoD functions are performed by contractors. PSCs are now a dime-a-dozen, with nearly 200 companies operating in theatre. They provide dozens of useful services at reasonable prices, though fraud, waste, and corruption still occur on a wide basis.
It is easier to contract a PSC rather than attempt to stand up an internal force. The State Department asserted that it would take two years for one agent in the Bureau of Diplomatic Security to be trained to full qualifications, including the possession of a bachelor’s degree from an accredited university. PSCs, on the other hand, claim to hold a database of thousands of contractors of differing standards upon which they can call at any time, deploying a trained PSC in a far shorter amount of time: 90 to 120 days. It is notable, however, that no deaths or serious injuries were suffered by DoS officials when escorted by PSCs such as Blackwater.
This reliance on privatization is worrying for multiple reasons: inherently governmental functions may have been, be, or are scheduled to be performed by contractors who are not agents or actors of the U.S. government. And the cycle of crises since 9/11 exacerbates this shift: because it would take two years for a new DoS security agent to be trained and deployed, contracting with a PSC is easier and faster with a ‘similar’ outcome. However, that damages the State Department’s ability and desire to train appropriate staff for use in contingency areas and elsewhere; the day when the Diplomatic Security Bureau does nothing but contract out is no longer an implausibility.
The damages of privatization extend to the military as well. PSCs do not explicitly poach service members, at least not openly. When normal soldiers run into contractors in nearly the same gear and doing nearly the same job, but receiving $600 to $1,000 dollars per day, their morale suffers, and they may chose to exit the service sooner in order to reap the benefits of private sector life.
With these lessons in mind, the U.S. should continue to contract functions to the private sector, but only after analyzing the risks of that contract, both strategically and operationally. Further, the U.S. must cement the legal status of PSCs under U.S. law by determining whether the MEJA and UCMJ or other applicable laws cover contractors entirely by closing definitional and interpretative loopholes. Oversight must be enhanced through the recruitment of contracting officers and auditors, for only a well-regulated private sector will help the U.S. achieve its foreign policy objectives. Enforceable international laws should outline what a private security contractor is and is not, creating a classification for these kinds of armed forces in addition to combatants, non-combatants, and mercenaries. The rise of transnational threats and issues is best countered by international laws, not by national laws. The use of all American military, diplomatic, and commercial functions, in accordance with international and host nation laws, will assist sovereign nation-states in their growth and potential democratization.
The experience of private security contractors in Iraq from 2003 to 2011 is filled with moments of pain, hope, anger, fear, success, and failure. In many cases, private security contractors performed their difficult tasks above and beyond, sacrificing their lives and limbs. In other cases, private security contractors took the lives of Iraqis needlessly or callously. But, contractors will remain involved heavily with U.S. operations overseas, as contracting resources shifted concurrently with the shift in U.S. military and diplomatic attention from Iraq to Afghanistan. Wherever the U.S. military and State Department go, private security contractors will follow, offering their services and experience. Whether the operational, situational, and foreign policy risks are right or not, is for policymakers to weigh carefully and seriously before signing these contracts.