Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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The Law is Lacking: How PMSCs are Able to Circumvent National and International Law, Part II

Lindsay Stallings

The law that governs private military security contractors in times of armed conflict is, at the same time, both too broad and too narrow. Historically in most of its legal instruments, international humanitarian law (IHL) has addressed the role of mercenaries in armed conflict. The Hague Conventions of 1907, the Geneva Conventions of 1949 and the 1977 Additional Protocols all speak to the protections for mercenaries in armed conflict.[1]  Most specifically, the International Criminal Court states that they do not hold any jurisdiction over the “crime of mercenarism”.[2] With the increased incorporation of private military security contractors in conflicts around the world, this historical approach needs to be revisited and we need to determine, as an international community, the legal rights and regulations that bind PMSCs. 

PMCExperience-1

Today, PMSCs are largely self-regulated. They set company-specific standards for themselves and proceed with carrying out their contracted mission. To be clear, the parts of IHL that references mercenaries does apply, in large part, to the activities of PMSCs; and further, it provides a launching point for determining where the responsibility lays for the actions of PMSCs. It does not provide a law by which PMSCs must abide by however. They exist in a legal limbo, both on an international and a national level. In the US, PMSCs do not fully fall within the parameters of the Uniform Code of Military Justice (UCMJ),[3] as they are not active duty military, they will likely not become subject to laws of the “Host Nation” as that requires consent by the “Sending State”[4] – something that the US would refrain from for many reasons, and they fall out of reach of the Military Extraterritorial Jurisdiction Act of 2000 (MEJA) as it applies only to Department of Defense contractors.[5]

This legal hole leaves the international community with a large problem, who and how are these important armed conflict actors going to be held responsible for violations of IHL?

There are multiple examples that highlight the need for this question to be answered; one of the most intricate is the inspiration for these posts. The former Blackwater PMSCs who fired upon and killed 17 Iraqis in 2007 fall just outside of the parameters of all applicable law. We can analyze the situation moving from US law to international law and see how important it has become to reign in the activities of these non-state actors.

blackwater-logo1

Self-regulation doesn’t always work. t has become clear throughout the investigation of this incident that Blackwater was a troubled company. Many PMSCs are former military, specifically special operations, and have a strong sense of duty to their country and their cause. The Blackwater CEO at the time had begun to make changes in the company, demanding all employees declare their loyalty to just him. This is just one example of why self-regulation is not the sole solution to this legal struggle.

Moving to the next level of law, trying PMSCs under US criminal law poses distinct constitutional issues as well as practical investigatory and evidentiary issues. A crime committed outside of the US is difficult to investigate and creates issues when trying to preserve the integrity of the evidence across such geographic expanses. In that same vein, allowing for the Host State to prosecute crimes committed by PMSCs in their territory poses even more practical issues. Many times, Host State governments and court systems are ill equipped to handle the situation or are corrupt. In this specific situation concerning Blackwater, the US was not going to allow the Iraqi government that level of unchecked power over US citizens.

Moving to the next level, the UCMJ covers only civilians accompanying US armed forces in contingency operations.[6] This provides jurisdiction for the US Armed Forces to prosecute contractors for criminal acts committed in the course of their operations. Practically, however, the Department of Defense has failed to publish the regulations guiding Judge Advocates Generals so they can properly proceed with prosecuting contractors under the new UCMJ.[7] Again, this legal solution is also not enough.F546ED2D-F118-47E6-9719-BBB3041D7DB7

Moving into international law, the Hague Conventions of 1907 discusses the implications of mercenary, not PMSC, activity on neutral states. If a state is neutral in a conflict, they are not permitted to allow recruiting or other mercenary activity to occur in their territory.[8] Additionally, in the Additional Protocol I of the Geneva Conventions (1977), Article 47(1) states that individuals who are found to be a mercenary would be deprived the rights of the combatant or prisoner-of-war status. Finally, the Rome Statute specifically states that the International Criminal Court has no jurisdiction over the “crime of mercenarism”.[9]

Looking at just these few sources of legal authority governing current PMSC activities, it is clear that the facts of each instance of PMSC criminal behavior must be creatively applied to the law to ensure accountability. In the case of the former Blackwater employees, the legal case encountered all of the presumed legal difficulties; who, where, how, when? A solution, seven years later, as stated in my first post, likely put more of a diplomatic strain on the relationship between the US and Iraq.

It is a call for more of an international law solution for the growing PMSC presence in international conflicts. It is a call we cannot ignore as more and more PMSCs participate in conflicts globally.   

Lindsay Stallings is third year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a J.D. and concentration in International Law. She graduated from The Ohio State University in June of 2011 with a Bachelors of Science in Political Science with minors in Sociology and International Studies. She has also studied  Spanish and Arabic language and culture extensively. While at The Ohio State University she was a member of the International Affairs Scholars program, through which she studied abroad in Bulgaria. She was active in the Undergraduate Student Government and was a member of various academic and student life university-level committees.

Her primary interests are international law, national security, and U.S. Military and diplomatic policies. Through her coursework and relationships with our international law faculty she has developed a more focused interest in the policies surrounding international conflict and the capabilities of international courts. Lindsay currently serves as the Careers Director on the International Law Society and is a Staff Editor on the Journal of International Law. Her legal coursework and extracurricular activities have given her the opportunity to mold her passion for cultural studies and problem solving into an exciting international legal career.

[1] Katherine Fallah, Corporate actors: the legal status of mercenaries in armed conflict,

[2] Id. At 610 (articles 5, 121, and 123 of the Rome Statute do indicate that the question of jurisdiction can be revisited if there is consideration of the definition of “aggression” by states parties.)

[3] GWLR

[4] GWLR 1312

[5] GWLR 1311

[6] 10 U.S.C. § 802(a)(10) (2006).

[7] GSLR 1314; see also Memorandum from Gordon England, Deputy Sec’y of Def., to Secretaries of the Military Departments, et al. (Sept. 25, 2007) available at http://www.aschq.army.mil/gc/files/Dep-SecDef%20Memo%20Mgt%20of%20Contractors%2025Sep07.pdf.

[8] Hague Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, of 18 October 1907 (Hague Convention V).

[9] Rome Statute

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Holding Private Military Security Contractors Accountable, Part I

Lindsay Stallings

What is the role of private military security contractors (PMSC) in international war today? At the beginning of the War on Terror there were an innumerable amount of private security personnel working for the United States in Iraq and Afghanistan. On October 23, 2014, a jury convicted four former Blackwater (now known as Academi) security personnel of first degree murder, voluntary manslaughter, attempted manslaughter, and using military firearms in the commission of a felony.[1] These convictions send a message that the actions of PMSCs can incur criminal liability for their actions.

The role PMSCs play in international conflicts is very important. They often do work that active duty military cannot do because of various international law constraints, they often have military training themselves, but are often not held by the same international law standards due to the status of forces agreements (SOFA) that they operate under in the host country. These agreements often afford PMSCs immunity under the domestic laws of the host country. This case featuring the four former Blackwater operatives is of great importance because it is the first instance that puts limits on the activities of the PMSC’s. 

KHALID MOHAMMED/AP - An Iraqi traffic policeman inspects a car destroyed by a Blackwater security detail in al-Nisoor Square in Baghdad, Iraq in 2007. A federal jury in Washington convicted four former Blackwater security guards on trial in the shootings of more than 30 Iraqi citizens in the heart of Baghdad.

KHALID MOHAMMED/AP
An Iraqi traffic policeman inspects a car destroyed by a Blackwater security detail in al-Nisoor Square in Baghdad, Iraq in 2007. A federal jury in Washington convicted four former Blackwater security guards on trial in the shootings of more than 30 Iraqi citizens in the heart of Baghdad.

Condoning their Behavior?

In 2007 four Blackwater operatives killed 14 unarmed Iraqi’s, largely women and children. At the time of the incident the US refused to allow the Blackwater employees to be tried by the Iraqi justice system. They were brought back to the US to stand trial here instead. The first trial was dismissed by the judge based on the unconstitutional collection of evidence.[2] In terms of US-Iraqi diplomatic relations the mistrial was the second blow. First, the US protected the Blackwater employees by bringing them back to the US for trial. Second, when they did face trial, it was inconclusive. To the Iraqis this likely seemed as if the US was condoning the Blackwater employee’s actions, as there was no justice for those that were killed.[3]

At the conclusion of the second trial on October 22, 2014, there was little rebounding from the presumption that the US did not really intend to punish the Blackwater employees. In response to this daunting assertion, US attorney in Washington, DC said that this verdict “is a resounding affirmation of the commitment of the American people to the rule of law, even in times of war.”[4] Holding these security contractors accountable, even seven years later, will hopefully bridge the diplomatic differences exacerbated by this incident.[5]

Former Blackwater Worldwide security guard Nick Slatter, second from left, and Donald Ball, third from left, arrive with their lawyers at the U.S. District Court before surrendering to authorities in Salt Lake City, Utah, in Dec. 2008.

Former Blackwater Worldwide security guard Nick Slatter, second from left, and Donald Ball, third from left, arrive with their lawyers at the U.S. District Court before surrendering to authorities in Salt Lake City, Utah, in Dec. 2008.

What Role Will PMSCs Play in International Conflicts in the Future?

The true question is what legal status should PMSCs have in future international  and non-international armed conflicts?

In this case, the lack of international legal status is likely what caused the most diplomatic strife. These men are American citizens, but they are not American military. They do not report to the Department of Defense, the Uniform Code of Military Justice, and the US enters into agreements with the host government that waives the applicability of host country domestic law for their actions. PMSCs are private American citizens employed by the Department of State. PMSCs operate in a legal vacuum. Prior to these convictions, legal precedent was unclear as to what law applied to private citizens committing criminal acts in foreign lands. There is still not a clear legal direction as to what status PMSCs hold when they are acting in a foreign country. This could be further muddled if distinguishing between the types of conflicts that PMSCs are participating in, whether or not they are working overtly or covertly, and who has hired them (the United States government or other nations). In the second installment of this blog post, however, I will delve further into the legal status PMSC’s should have when acting within various types of international conflicts based on the legal precedent set by this case.

While legal precedent is important, it sometimes works much slower in the real world than public policy could work. The Iraqis doubted the US commitment to bringing the Blackwater employees to justice for their attack on unarmed Iraqi civilians. This ruling is a palpable step towards establishing a barrier between acceptable and unacceptable behavior of private citizens acting in a war zone. Although the Iraqis may not have their full faith in the US justice system restored after waiting seven years for a ruling, this is indeed a positive step in showing the world that we are willing to hold these private citizens accountable for their actions. This could, and hopefully does, show the world that the US does not think it is completely above the law – foreign or domestic.

blackwater_trial_04-22-2014

Legal precedent is important and actively developing due, in large part, to this case. In the meantime, the evolving public policy will hopefully calm any remaining diplomatic strain stemming from this incident. Further, it should remind the international community that the US is taking responsibility for the actions of their PMSCs and, while it took some time in this case, impunity will not carry on into the future.

In Part Two of this blog post I will discuss the legal standards that should be applied to PMSCs in different types of international conflicts.

Lindsay Stallings is third year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a J.D. and concentration in International Law. She graduated from The Ohio State University in June of 2011 with a Bachelors of Science in Political Science with minors in Sociology and International Studies. She has also studied  Spanish and Arabic language and culture extensively. While at The Ohio State University she was a member of the International Affairs Scholars program, through which she studied abroad in Bulgaria. She was active in the Undergraduate Student Government and was a member of various academic and student life university-level committees.

Her primary interests are international law, national security, and U.S. Military and diplomatic policies. Through her coursework and relationships with our international law faculty she has developed a more focused interest in the policies surrounding international conflict and the capabilities of international courts. Lindsay currently serves as the Careers Director on the International Law Society and is a Staff Editor on the Journal of International Law. Her legal coursework and extracurricular activities have given her the opportunity to mold her passion for cultural studies and problem solving into an exciting international legal career.

[1] Justine Drennan, Four Blackwater Guards Convicted of Killing 14 Unarmed Iraqis, Oct. 23, 2014 http://thecable.foreignpolicy.com/posts/2014/10/22/four_blackwater_guards_convicted_of_killing_14_unarmed_iraqis.

[2] Dwyer Arce, Federal judge dismissed charges against indicted Blackwater guards, Jan. 1, 2010 http://jurist.org/paperchase/2010/01/federal-judge-dismisses-charges-against.php.

[3] Mary Casey, U.S. Jury Convicts Four Former Blackwater Guards in 2007 Killings, Oct. 23, 2014 http://mideastafrica.foreignpolicy.com/posts/2014/10/23/us_jury_convicts_four_former_blackwater_guards_in_2007_killings

[4] Id.

[5] Matt Apuzzo, Blackwater Guards Found Guilty in 2007 Iraq Killings, Oct. 22, 2014 http://www.nytimes.com/2014/10/23/us/blackwater-verdict.html?ref=middleeast&_r=0.