Time to concentrate on making PMCs respect IHL


The question of the legitimacy of private military or security companies (PM/SC) in conflict zones is less important than having them respect international humanitarian law (IHL). That’s the message of Christophe Deschard of the International Committee of the Red Cross (ICRC).

Deschard will be speaking

at defenceWeb’s Peacekeeping Africa 2010 event

at Gallagher Estate, Midrand, from August 26 to 27. “For the ICRC, it is not the lawfulness or ‘legitimacy’ of PMCs/PSCs that is of primary concern,” Deschard says in notes prepared for a talk on the Montreux Document on the conduct of PM/SC signed by 17 states, including South Africa, Angola, Sierra Leone, Britain and the US in September 2008.

Deschard notes the ICRC recognises the controversy among states on the legitimacy of PM/SCs and their activities, “but accepts that their presence in conflict is a reality”. He will say that the focus must therefore be on ensuring PMC and PSC personnel are aware of IHL, respect IHL and are made accountable for violations of IHL.

As an aside, the legal and ethical dilemmas surrounding the use role of PM/SC came to prominence during the US counterinsurgency in Iraq after its 2003 invasion. The US military and State Department have both in recent decades stepped up the use of PM/SC to provide military, security and intelligence training and assistance to governments friendly to it. After the US occupation of Iraq and the outbreak of resistance, the use of such contractors to provide physical security and related tasks exploded. Estimates by the Washington Post and Time of the number of such personnel in Iraq in the immediate following years range between 30 000 and 40 000 and up to 100 000.

The US Centre for Public Integrity has reported that between 1994 and 2009 the US Defense Department entered into 3601 contracts worth $300 billion with 12 US-based PM/SCs. Some commentators view the use of PM/SC as an inevitable cost cutting measure and as a example of the “responsible privatisation”. But others believe it is a troubling trend, since these contractors are often not accountable and can be costly too. In Iraq, the Coalition Provisional Authority that initially held sovereignty exempted PM/SC from Iraqi law. They also did no fall under US military law and quickly became a law unto themselves.

Employees of CACI and Titan Corporation were involved in the Abu Ghraib prison scandal in 2003 and 2004, with the US Army finding the contractors were involved in 36% of the proven incidents of prisoner abuse and identified six employees as individually culpable. None reportedly faced prosecution.

Another notorious incident involving PM/SC included the posting on the Internet on October 2005 of a so-called “trophy” video, complete with post-production Elvis Presley music, appearing to show contractors in Baghdad shooting Iraqi civilians. One of the men was allegedly a South African.

In a further infamous incident Blackwater contractors shot and killed 17 Iraqi civilians in the Nisour Square in Baghdad while escorting a convoy of US State Department vehicles on September 16, 2007. The incident caused intense outrage, with the by then mostly sovereign Iraqi government withdrawing its operating licence the next day. The US State Department said that “innocent life was lost”while US military reports indicated Blackwater guards opened fire without provocation and used excessive force. The US Federal Bureau of Investigation probe that found almost all of the shootings “were unjustified and violated deadly-force rules in effect for security contractors in Iraq.” In December 2008 the US Justice Department charged five Blackwater employees with manslaughter. The charges were dismissed in January this year.

The September 2007 incident was the culmination of a series of other fatal shootings involving the company. The shooting led to the company replacing its management and changing its name to Xe Services.

Much of the peacekeeper training the United States provides to African militaries is done by private firms, and with the increasing absence of Western military support to international peace operations, the private sector is commonly utilised to provide services to peace and stability operations from Haiti to Darfur. The PMC industry is now worth over $100 billion a year.

Returning to Deschard’s planned presentation, the ICRC official will further explain the Montreaux Document came about as an initiative of the Swiss government in collaboration with the ICRC. Originally signed by just 17 states, it was by May 2010 supported by 34. However, the document remains non-binding and not an international treaty.

The document stressed that states that contract PMC/PSC, the states where they are incorporated and the states on whose territory they operate are required to respect IHL and ensure it is respected. This includes the obligation to ensure respect PMC/PSCs they contract respect IHL, accepting responsibility for violations of IHL committed by PMC/PSCs and investigating or and prosecuting IHL violations.

Possible regulatory measures may include a licensing system, the prohibition of certain activities, requirements such as training, standard operating procedures and rules of engagement, disciplinary measures and sanctions such as the withdrawal of operating licences, loss of monetary deposits and criminal prosecution to bringing to justice offending individuals and companies.

Pic: A Blackwater contractor providing personal security in Iraq. Undated photo.

Pic: A Blackwater contractor providing personal security in Iraq. Undated photo.