Boots On The Ground: Accountability and Responsibility for Private Military Contractors Abroad

Boots On The Ground: Accountability and Responsibility for Private Military Contractors Abroad

Private military contractors (PMCs) are a fixture on battlefields across the globe dating back thousands of years. Their form continues to evolve as state governments become increasingly reliant on them. Today, military contractors are divided into three groups which perform distinct tasks within the broader PMC grouping; military provider firms (MPFs) focus on tactical elements and engage in direct fighting; military consulting firms (MCFs) provide training and advice for the restructuring and operating of a client’s military; and military support firms (MSFs) that provide military services categorized as supplementary including intelligence, technical support and logistics.

As the United States’ use of contractors continues to grow, with contractual obligations rising from $187 billion in 2000 to $283 billion in 2011, the amount of control the US government has over these contractors declines. This lack of oversight and accountability gives rise to situations where the actions and/or ethics of members of the private firms who, while operating on American dollars, are bound by neither the same rules nor protections as American troops operating in the same regions; producing situations such as the Blackwater killings, and raising concerns about their ability to act outside the confines of U.S. laws while under the umbrella of government funding. Allegations of PMC involvement in human rights violations also fuel upset.

PMCs cannot be labeled as purely good or bad, they exist in a complex market wherein they are private firms with leading roles in the theatre of public warfare. They enjoy a level of autonomy which has become increasingly problematic; the incidents of PMC misconduct or mishandling rose as their degree of use in the Iraq and Afghanistan conflicts did the same. There has long been a debate over the loyalties and motives of PMCs. Leaders of the contracting groups claim their employees are subject to contractual accountability, and that it is just as binding as the oaths of enlistment taken by government armies.

Conversely, advocates of PMC policy reform state that controversy occurs when public interests diverge from those of the company. PMCs are businesses first and their ultimate goal is profit, which will always serve as a roadblock to the contractors effectiveness as military forces. By this line of reasoning, finding a way to more closely align the two sets of interests - those of the US military and PMCs - would bring about a more harmonious and successful relationship. In the case of the PMCs this may be done by writing contracts more carefully with stricter regulations or enforcing changes stipulated by the Commission on Wartime Contracting.

The aforementioned issues are largely boardroom fights; the most difficult scenarios to provide answers for take place in the field, where tensions run high and the most important component of maintaining order is a clear, respected chain of command. In the military, soldiers are subject to their immediate supervisors, but also to court-martials and ultimately to the President of the United States, as well as the nation herself.  Alternatively, PMCs have little to no disciplinary structure aside from their shareholders. International law currently addresses only traditional mercenaries; there is little to no legal recourse for misconduct. PMC employees currently fall into the grey area also inhabited by detainees of Guantanamo Bay; they are neither civilian nor soldiers. This can be dangerous for the contractors, who are not protected under the Geneva Conventions.

Shrouded in secrecy, PMCs “diffuse” responsibility across actors, and in doing so, the answer to who should be held accountable becomes more and more elusive. Speaking on the subject, U. S. Army Colonel Peter Mansoor said the Army needed to take:

“a real hard look at security contractors on future battlefields and figure out a way to get a handle on them so that they can be better integrated - if we’re going to allow them to be used in the first place...if they push traffic off the roads or if they shoot up a car that looks suspicious, whatever it may be, they may be operating within their contract –to the detriment of the mission, which is to bring the people over to your side. I would much rather see basically all armed entities in a counterinsurgency operation fall under a military chain of command.”

Even before stepping onto foreign soil, PMCs represent a problematic threat from within their ranks; member recruitment is private. While many recruits are well-qualified ex-servicemen, a sizeable percentage lack proper experience or have unsavory records which include possible human rights violations. PMCs like to keep violations hidden from the media and may release employees who are then hired by other firms, unaware of their past misconduct. In the Balkans, a group of DynCorp employees was found to be involved in sex crimes, slavery, illegal arms trade, and prostitution rackets. There was even a tape of the Bosnia supervisor raping two women; DynCorp whisked the men out of the country and they never faced prosecution. Instead, they fired the “whistleblowers.” Another similar situation occurred in the Abu Ghraib prisons.

The lack of oversight present in the operations of PMC is alarming in another facet; it often allows governments to complete public goals through private means. While governments favor this option, it is a slippery slope wherein they can partake in endeavors which may not otherwise be approved, either by the public or by legislative branches. Although PMCs receive government money, their activities are not state-sponsored. Activities are happening away from public view which may have lasting impacts on foreign policy. One example of this is how President George W. Bush used PMCs to interfere in the Colombian Civil War to a greater extent than approved by Congress for U.S. military forces.

This was a source of serious discussion and debate during the Iraq war, where an average of 21,000 PMC troops in the region from 2003-2009, spiking from 10,000 to 40,000 between 2003 and 2008. PMC troops carried out countless military operations which are not accessible under the Freedom of Information Act, and which will remain secret as private contractors are not answerable to Congress.  This is another grey area inhabited by PMCs; some engage in tactics not sanctioned, or even not legal, in the countries they are working in and/or under contract with. This issue again has roots in the lack of structure for assigning responsibility and accountability to employees of PMCs as they operate, and the absence of legal repercussions for misconduct.

The foundation for reforms will be the PMCs legally binding contracts. In writing and negotiating them, the DOD has the opportunity to include strict outlines for a chain of command; akin to a hierarchy for responsibility one might find in the U.S. armed forces. The establishment of a clear and necessary power structure will be instrumental in controlling the behavior of PMC employees abroad. While it is unrealistic to expect an immediate willingness from the PMCs to cooperate, the US government funnels billions of dollars to these companies every fiscal year and taking a hard line with them over contractually based responsibilities will be beneficial as the DOD continues to do business with them in the future.  

Perhaps even more important than the presence of a mandated accountability apparatus is the need for it to be enforced once agreed upon. As mentioned before, there are currently some documents which place limitations on PMC conduct but they remain unenforced, enabling the accountability vacuum presently seen in the PMC theatre. Enforcement and oversight procedures must be put in place at the same time as the new chain of command.

As there are currently no international statutes under which PMC can stand trial for misconduct, the DOD must require their contractors to submit to U.S. jurisdiction or jurisdiction of the region in which they are operating under in each specific contract. This will likely be the hardest point to reach agreement on with the PMCs, but it is arguably the most important. Creating and enforcing a chain of command aimed at requiring accountability for one’s actions are crucial steps forward, but if at the end of the day PMC employees still cannot face legal consequences for misconduct, some instances being horrific acts of violence, then contractors are able to remain in their loop of unchecked power. The capacity to follow through with disciplinary actions is critical.

These are not all encompassing solutions, there are other issues which will need to be addressed. Presently, the issues of accountability and responsibility for PMC actions abroad are the most pressing in this realm and the basis for reforming these areas lies in the power of contracts.

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