Overseas Civilian Contractors

News and issues relating to Civilian Contractors working Overseas

Security Contractors and U.S. Defense: Lessons Learned from Iraq and Afghanistan

David Isenberg at the CATO Institute  June 14.2011

David Isenberg is an analyst in national and international security affairs and a US Navy veteran. He is also a member of the Coalition for a Realistic Foreign Policy, an adjunct scholar with the Cato Institute, and the author of a new book, Shadow Force: Private Security Contractors in Iraq.

Although the United States has been using private contractors in one way or another since the founding of the country, it is the experience of the past decade, since the Sept. 11 terrorist attacks, that has focused attention on private military and security contractors (PMSCs) to unprecedented levels.

The U.S. Defense Department and State Department, as well as other U.S. agencies and other countries, have used contractors in Iraq and Afghanistan both for logistics work, which accounts for the vast majority of contractors, as well as for much more publicized, but numerically far smaller, security roles. As a result, even if much of the most useful information is closely held by governments and companies and thus not available to the public, we now have a rich source of information on contractors that allows us to draw some tentative lessons and conclusions as to their impact and proper role.

Before going further, however, it is important to note that while some of the following points have implications for the use of PMSCs around the world, it would be wrong to assume they can be applied globally. It is a simple fact that the United States has privatized and outsourced former military and associated national security functions to a degree unmatched by any other country. Thus, the lessons described here should be viewed through a U.S.-centered lens.

A look through that lens reveals that contractors are fully integrated into U.S. national security and other government functions. To paraphrase a popular commercial about the American Express credit card, the United States cannot go to war without them.

Please read this in it’s entirety here

June 15, 2011 Posted by | Afghanistan, Civilian Contractors, Iraq, Private Military Contractors, Private Security Contractor | , , , | Leave a comment

The $10,000 Iraqi Civilian

by David Isenberg at Huffington Post also at The PMCS Observer

Just how much is an Iraqi life worth? I don’t know but, in the aftermath of the killing of 17 Iraqi civilians by Blackwater employees at Nisoor Square in September 2007, apparently Iraq and the United States, had very different ideas, according to one of the recently released Wikileaks cables. (Note: One can find all the Wikileaks cable concerning Blackwater here.

The cable shows, not surprisingly, that the Iraqi and U.S. governments were magnitudes of order apart on what an Iraqi life was worth.

According to the cable the U.S. Embassy in Iraq obtained a copy of the Government of Iraq’s investigation report of the September 16 incident at Nisoor Square. The report recommended payments of $8 million and $4 million for each death and injury respectively, and called for the USG to replace Blackwater within six months of the incident.

At that time the Embassy had begun accepting claims from victims of the incident and approved payments of $10,000 for each death, $5,000 for each injury, (800 times less than the Iraqi figure for both death and injury) and $2,500 for property damage.

Please read this post in it’s entirety here

January 3, 2011 Posted by | Blackwater, Civilian Contractors, Private Security Contractor, State Department, Wartime Contracting, WikiLeaks | , , , , , , | 2 Comments

The PMSC Observer

We highly recommend David Isenberg’s new blog

The PMSC Observer

In his own words “In keeping with my own philosophy it is neither pro-contractor nor anti-contractor. It is just devoted to highlighting the current news on PMSC issues. So I cull major and minor news sources and specialized databases every day and post the links to the quality news, reports, studies, government documents, and information from all over the world.”

 

December 29, 2010 Posted by | Civilian Contractors, Private Military Contractors, Private Security Contractor, Wartime Contracting | , , , | Leave a comment

One Small Step for Transparency, One Giant Step for the U.S. State Department

by David Isenberg cross posted from The Huffington Post

In the past I have been critical of both private security contractors and the government for not being more transparent about the details of the contracts that PSC undertake for various U.S. government departments and agencies. Although, in all fairness, the government deserves a bigger share of the blame as it often, if not always, inserts a clause in its contracts saying the PSC can’t talk to the media without first getting permission from the government.

So, imagine my surprise and delight to find that the U.S. State Department, of all places, has posted online portions of some of its actual past contracts. While not all the contract language is there and much of the information is generic, as in specifying the various parts of U.S. law that a contractor must comply with, it is worthwhile to know the requirements with which a PSC is supposed to comply.

Consider, for example, S-AQMPD-05-D-1098. This was the contract the State Department had with Blackwater under the Worldwide Personal Protective Services contract, the mother of all security contracts for State, as it provides for protection of U.S. diplomats around the world.

It is useful to peruse this as it shows that, at least when it comes to drafting a contract, the government does take some pains to specify what a contractor can and cannot do. The section on contract clauses covers everything from anti-kickback procedures, payment for overtime premiums, workers compensation insurance, and cost account standards, to name just a few clauses.

In case you wondered how much the State Department pays to provide contractors with Defense Base Insurance, as required by federal law, the amount is:

(a) The Department of State has entered into a contract with an insurance carrier to provide DBA insurance to Department of State contractors at a contracted rate. The rates for this insurance are as follows:Services @ $3.87 per $100 of compensation; or

Construction @ $5.00 per $100 of compensation.

Or consider the equipment the U.S. government agreed to provide ArmorGroup for the contract it had to protect the U.S. Embassy in Kabul. ArmorGroup was the PSC in the news back in 2009 when the party antics of some of its staff, such as drinking vodka shots off someone’s butt, made headlines around the world. That, by the way, would seem to be a violation of this contract provision:

H.2.4 CONTRACTOR COMPLIANCE. Contractor personnel shall adhere to the following rules, regulations, and policies of the U.S. Chief of Missions, Kabul, Afghanistan.
• Contractor personnel shall be expected to perform and conduct themselves with proper decorum, subject to the U.S. Chief of Mission.

The Sate Department obviously wanted the security contractors to stay in shape, which is why it paid for such gym equipment as elliptical bicycle, table tennis table, curl machine, chest press, shoulder press, bench press, abdominal bench, and DVD player, to name a few.

Or see S-AQM-PD-05-C-1103, which is the contract DynCorp held for providing aviation services for anti-drug work in Colombia. Those Colombian citizens who have been concerned about the possible health effects of the chemicals used to destroy coca crops will be interested to know that the contract calls for:

Written records for each scheduled spray mission that includes: mission ID, pilot ID, date, time, aircraft number, aircraft type, duration of flight, hectares sprayed, flow through spray total amount of herbicide dispensed, type of crop sprayed, geographic location of spray mission, reason for abort of aborted missions. Identify as Del Norte or non- Del Norte spray mission.

By the way, since contractors are not shy about claiming that they are usually more cost-effective than the government you should note that the contract states that the contractor shall provide “an overall effectiveness rate report of the aerial eradication program for the calendar year. This shall be compared to ground verification data (if the ground verification is performed). Raw data captured for this report shall be provided to a USG representative.”

I’m sure we would all love to see that report

December 12, 2010 Posted by | ArmorGroup, Blackwater, Civilian Contractors, Contingency Contracting, Contractor Oversight, DynCorp, Private Security Contractor, State Department | , , , , , | Leave a comment

Let’s Tell It Like It Is, IPOA Annual Summit 2010

By David Isenberg at Huffington Post

I have, on occasion, in the past been critical of IPOA (formerly the International Peace Operations Association and now the Association of the Stability Operations Industry), the Washington, DC-based trade association for private military and security contractors. So it is only fair to mention them when they do something inarguably right.

That something was their three day 2010 Annual Summit that took place earlier this week.

To go to the event and listen to the panels on such subjects as international standards and accountability, logistics and support in contingency operations, regulatory evolutions in the industry was to see both private companies and public officials seriously grappling with issues of oversight and accountability at a practical, not a rhetorical, level.

There was some serious reflection going on. At the beginning of the first day Chris Taylor, CEO of Mission Essential Personnel, an IPOA member company, and a main sponsor of the summit, said the following in his opening remarks:

All of us have been asked to testify or to speak about a great many issues. And deservedly so. Spending the taxpayer’s money is an important task that comes with a great responsibility [Note: Let’s call this the Peter Parker principle: with big contracts comes big responsibility] But one of the things that we can’t let it do is force the industry to be transactional instead of transformational. We do bring a certain value to the government and to taxpayers. Because of the scrutiny I don’t believe that – I think it can actually be our finest hour for the industry; not a reason to hunker down and not be cooperative, not be forthcoming with people who may have questions about what it is that we do. As a matter of fact I think it should be quite the opposite. I think it should be an opportunity for us to tell it like it is; to inform people of the facts about our abilities, about the complexities of working in contingency operations, and working in development operations, and working in security operations. I don’t think we should, we shouldn’t miss that opportunity whatsoever. We certainly should not shy away from it.
I would encourage all of us to ask tough questions of each other first…

To me that reflects the emergence of a mindset that is self-confident but not boastful, proud of its accomplishments but mature enough to understand that legitimate questions can be raised about their operations.

It is hard to imagine a CEO of a traditional military-industrial company, such as Lockheed Martin or Northrop Grumman, saying something similar.

For those people who think that PMC or the U.S. government don’t take seriously issues of oversight and accountability they should view the video of the panel on international standards and accountability.

I recorded it with a Flip camcorder and you can watch the segments on my YouTube page. I had to break them up due to Youtube’s size limit on what can be uploaded at one time but you can view them here.

Part 1 Part 2 Part 3 Part 4 Part 5 Part 6 Part 7

One of the more interesting parts of that panel was the discussion of the forthcoming International Code of Conduct for Private Security Providers. Among other things it:

– Sets out clear obligations and operational standards for PSCs based on international human rights standards

– Launches a process to establish effective oversight and compliance mechanisms.

There will be a high-level signing ceremony for it on 9 November 2010 in
Geneva, Switzerland. You can find the code online here .

As IPOA taped the entire summit it will, hopefully, transcribe and post online the proceedings as soon as possible. Hint, hint.

October 21, 2010 Posted by | Civilian Contractors, Contractor Oversight, Mission Essential Personnel, Wartime Contracting | , , , , | Leave a comment

Burn Pit Claims Against KBR and Halliburton can Continue

Strike Two on “Just Following Orders” Defense

To paraphrase Yogi Berra it’s déjà vu all over again for KBR.

By David Isenberg at Huff Post

In my Aug. 31 post I wrote about a significant pro-veteran ruling in the Oregon KBR Qarmat Ali litigation. This is the case where Oregon National Guard troops allege KBR’s liability for negligence and for fraud arising out of plaintiffs’ exposure to sodium dichromate and resultanthexavalent chromium poisoning while assigned to duty at the Qarmat Ali water plant in 2003.

Paul Papak, the federal district judge rejected the motion by KBR and co-defendants to dismiss the suit for lack of subject-matter jurisdiction and rejected it.

I noted that the end result was that the “we were just following orders” defense is looking even lamer than ever.

Now it turns out another judge, ruling on another KBR issue, its running of burn pits in Iraq and Afghanistan, has ruled the same way. Sick soldiers deployed in Iraq and Afghanistan filed claims against the corporations because of “alleged failures of the military contractors to treat water and dispose of waste in a manner required” by their contract with the US military.

Today federal court judge Roger W. Titus ordered that claims against military contractors, KBR (Kellogg Brown and Root) and Halliburton, may proceed.  Please read the entire post here

September 9, 2010 Posted by | Afghanistan, Civilian Contractors, Contractor Casualties, Iraq, KBR, Legal Jurisdictions, Safety and Security Issues | , , , , , , | Leave a comment

Riding Herd on Cowboys in the Middle East

David Isenberg at Huffington Post

In the perpetual debate over legal accountability of, and prosecution if necessary, of private military and security contractors one often sees the arguments reduced to two simplistic arguments.

PMSC opponents argue the contractors argue in a legal vacuum and with utter impunity. This is, of course, as anyone who has even done the most cursory reading on the subject knows, is utter nonsense.

On the other hand, PMSC supporters argue that contractors are covered by a host of regulations and laws, both national and international, and any more are simply unnecessary.

Of course, the fact that even PMSC trade associations in the past have supported, with varying degrees of enthusiasm, changes to the Military Extraterritorial Jurisdiction Act (MEJA) and the Uniform Code of Military Justice (UCMJ) weakens their argument a bit. Still, it is true that there are a large number of rules, regulations, policy directives, and laws on the books with which contractors are supposed to comply. So their argument, when you follow it to its inevitable conclusion echoes that of the National Rifle Association, i.e., we don’t need more laws, but better enforcement of existing laws.

Well then, in that case let’s take a look at a journal article published this past spring. In an article “Cowboys in the Middle East: Private Security Companies and the Imperfect Reach of the United States Criminal Justice System” in the quarterly journal Connections Christopher M. Kovach, who serves as a Captain in the United States Air Force Judge Advocate General’s Corps, notes the limitations of the revised MEJA.  Read the entire post here

August 16, 2010 Posted by | Afghanistan, Civilian Contractors, Contingency Contracting, Contractor Oversight, Iraq, Private Military Contractors, Private Security Contractor, Wartime Contracting | , , , , , | 1 Comment

US spying spawns a dystopian epidemic

By David Isenberg at Asia Times

Considering revelations in recent years ranging from renditions, the overseas Central Intelligence Agency prison system, torture during interrogations and National Security Agency wiretapping, aka “warrantless surveillance”, it is difficult to claim, a-la Claude Rains in the movie Casablanca, that anyone is “shocked, shocked” to find the United States intelligence system so cumbersome that oversight is virtually impossible.

According to a Washington Post report last month, in a three-part series titled “Top Secret America” by Dana Priest and William Arkin, following a two-year investigation, “The government has built a national security and intelligence system so big, so complex and so hard to manage, no one really knows if it’s fulfilling its most important purpose: keeping citizens safe.”

The fact that the Post described a bureaucracy resembling the Oceanian province of Airstrip One in George Orwell’s dystopian novel Nineteen Eighty-Four – a world of perpetual war and pervasive government surveillance that allows the party to manipulate and control the public – is just icing on the cake for those who relish irony.

Read the entire story here

August 3, 2010 Posted by | CIA, Civilian Contractors, Contractor Corruption | , , , , | Leave a comment

The Latest on Contractors From SIGIR

By David Isenberg at Huff Post

The latest Quarterly Report to Congress from the Office of the Special Inspector General for Iraq Reconstruction has been released.

The following are excerpts relevant to private military contractors.

Number of contractors: Current, 119,700. Peak, 171,000 (Q4 2007)

p. 2

On July 22, 2010, several rockets impacted inside the International Zone, killing three foreign-national contractors working for Triple Canopy, a U.S.-based security company.Figure1.10 [ see p. 16] lists the 15 contracting companies that have reported the largest number of deaths in Iraq since March 2003.
This quarter, the Department of Labor (DoL) received reports of 12 additional deaths of contractors working on U.S.-funded programs in Iraq. DoL also received reports of 882 injuries this quarter that caused the injured contractors to miss four or more days of work. Since 2003, at least 1,487 death claims have been filed with the DoL.
p. 15

DoS has also requested that it be allowed to use the Logistics Civil Augmentation Program (LOGCAP) III to support its operations in Iraq beyond December 2011. As of June 30, 2010, however, Kellogg, Brown and Root, Inc. (KBR)–the sole LOGCAP III contractor–is scheduled to remain in Iraq only until the end of 2011. According to U.S. Embassy-Baghdad, it does not have a plan to meet its support requirements if KBR pulls out.  more here

July 31, 2010 Posted by | Civilian Contractors, Contractor Corruption, Iraq, Private Military Contractors, Private Security Contractor, State Department | , , , , | Leave a comment

CNAS on Contracting

By David Isenberg at the Huffington Post

Yesterday the Washington, D.C.-based Center for a New American Security released a report “Contracting in Conflicts: The Path to Reform” on the use of private contractors in conflict zones written by CNSAS Senior Fellow Richard Fontaine and CNAS President John Nagl, a retired Army officer who served in Iraq.

I think this is quite an excellent report and I recommend it both for gaining useful background reading on the subject as well as for some of its recommendation. (In the interest of full disclosure, I was a participant in working group sessions designed to help inform this project.)

Let’s start at the beginning. The authors make the same point I made in my book, one that is rarely grappled with directly. The explosive growth of the use of private contractors by the U.S. government in recent years is not due to the quest for profits or even the privatization model run amuck. It is about American foreign policy. Please read the full post here

June 10, 2010 Posted by | Civilian Contractors, Contingency Contracting, Private Military Contractors, Private Security Contractor, Wartime Contracting | , , , | Leave a comment

The Unknown Casualties

David Isenberg Huff Post

At the risk of belaboring the obvious we should remember that being a private military or security contractor can be a dangerous job. You can be wounded or killed, even if you are not carrying a gun.

As private contractor casualties are not reported by the Defense Department and merit just the briefest of notices in local hometown newspapers such casualties are largely off the radar screen for most people.

But the numbers are hardly trivial. Consider the latest version of a report on the Defense Base Act (DBA), put out by the Congressional Research Service. The DBA essentially requires that many federal government contractors and subcontractors provide workers’ compensation insurance for their employees who work outside of the United States.

As the U.S. military has increased operations in Iraq, the size of the DBA program has grown. Between September 2001 and the end of December 2009, the DBA has processed 55,988 cases of covered injuries or deaths. Of these, 27,820 or 49.7% involved no lost work time on the part of the employee. During this period, the DBA has processed 1,987 cases involving the death of a covered employee.

Of these, 1,459 or 73.4% occurred in Iraq and 289 or 14.5% occurred in Afghanistan. Of the 289 deaths in Afghanistan, 100 occurred during the final six months of 2009. Contractor operations in Iraq and Afghanistan account for 87.9% of all covered contractor deaths during this period. Nearly $200 million in cash and medical benefits were paid to DBA claimants in 2008.  

During this same period, there were 4,248 American military deaths in Iraq and 848 American military deaths in Afghanistan. So contractor fatalities were 38 percent of regular military forces

Note that many of the casualties were among people who did not do security work. Just over 40% of all injury and death cases covered by the DBA during this period involved employees working for Service Employers International Inc., an indirect subsidiary of KBR. Service Employers International Inc. was the employer of record for 22,921 total cases including 107 death cases between September 2001 and the end of December 2009.

Prior to the start of Operation Iraqi Freedom (which, by the way, will be renamed Operation New Dawn. effective September 1) in 2003, DBA benefits were paid to several hundred claimants per year. OIF was accompanied by an increase in the number of DBA cases and the total amount spent on DBA claims. The DBA caseload increased more than six-fold between 2004 and 2007, with 2007 having the largest caseload of the entire period. The average amount of compensation and medical benefits paid per claim in 2007, however, was at the lowest level since 2003. The number of DBA payments dropped in 2008, but the average benefits per case rose to the 2006 level.

The Department of Labor reports that the increase in cases in 2007 was due, in part, to greater compliance efforts that resulted in firms reporting a greater number of claims that involved only minor medical care and no lost work time.

For detail scroll down the CRS report to page four to see Table 2 “Total Defense Base Act Payments, 1997 to 2008” and Table 3 “Total Defense Base Act Cases, by Severity of Injury September 1, 2001 through December 31, 2009.”

May 25, 2010 Posted by | Civilian Contractors, Contractor Casualties | , , , , , , , , , | Leave a comment

Silence May be Golden, But It is Also Confusing

by David Isenberg at Huff Post

Back In January I wrote about an article by Air Force Maj. Chad Carter who wrote an article in the fall 2009 issue of Military Law Review that contested legal popular wisdom that the “political question doctrine” means that tort claim cases by military members and U.S. civilians injured in Iraq and Afghanistan must not proceed.

Now another military lawyer has weighed in on the subject. Lt Col. Chris Jenks, of the U.S. Army Judge Advocate General’s (JAG) Corps, who is currently assigned as the Chief of the International Law Branch, the Office of the Judge Advocate, writes in an article titled “Square Peg in a Round Hole: Government Contractor Battlefield Tort Liability and the Political Question Doctrine” in the Berkeley Journal of International Law, that while reliance on contractors is nothing new, the current utilization of contractors is both quantitatively and qualitatively different than in previous military operations. While the sheer number of contractors used by the military on the battlefield is unprecedented the U.S. Government does not know how many contractors it employs in Iraq and Afghanistan nor is it tracking the number of contract employees wounded or killed in Iraq and Afghanistan. Please Read the Full Post here

May 18, 2010 Posted by | Civilian Contractors, Legal Jurisdictions, Private Military Contractors, Private Security Contractor, Wartime Contracting | , , , , , | Leave a comment

Keep the Peacekeepers, but Outsource the Support Functions

David Isenberg at  Huff Post

Ever since the days when South African-based Executive Outcomes defeated UNITA rebel forces in Angola, thus helping to do what UN forces had long been unable to do, i.e., bring an end to the long running civil war there, people periodically bring up the idea of having private military and security firms supplement or even replace UN peacekeeping operations.

Others, such as the trade association IPOA, say its goals “are better supervision of private companies operating under the umbrella of UN or government-led operations and better coordination between private organizations, government, NGOs and international organizations.”

It is no secret that while UN peace operations may be necessary, even desirable, nobody goes around saying they are models of efficiency and cost-effectiveness. This is for a variety of reasons, not all of them the fault of the UN. Still, given the stakes in terms of lives saved anything that can be done to improve them is worth consideration.

One of the more recent studies on the subject examined the use of private security organizations in a peacekeeping role as a cost-effective and efficient alternative to United Nations peacekeepers, and developed an outsourcing scorecard for the UN.

The article which appeared last November in the South African Journal of Industrial Engineering surveyed forty national and international organizations through questionnaires, a review of relevant literature, and records. It found that outsourcing of support functions would lead to major cost savings in UN peacekeeping operations.

Conceptually, outsourcing UN peace operations is less of a leap than most people think. Every UN peace operation is in and of itself outsourced, as it depends on other nations providing troops for peacekeeping operations, since the UN does not have a standing military army or police force. And currently the specialized activities such as facilities maintenance, catering, and IT are services that are currently outsourced by all UN peacekeeping operations.

The article “Outsourced United Nations Peacekeeping Roles and Support Functions,” by K.A. Charles and C.E. Cloete found that outsourcing support functions would ensure more effective, efficient, and expeditiously managed peacekeeping operations.

There are some caveats. The authors note that not all outsourcing is equal. They write that it is essential that top management possess a variety of negotiation and relationship management skills, as well as strategic planning expertise – which are lacking in the UN. Thus, the recruitment of the right personnel is essential, and the objective must be to ensure that outsourcing adds value to the organization

What exactly can be outsourced? The authors write:

The UN has vast assets, from thousands of vehicles to aircraft managed by the integrated support section, with a staff strength of 758 (Chart 2). However, when all support and logistics functions are outsourced, the number of support personnel in the section should be reduced from the original 758 people to just 14 (Chart 3). Thereafter, logistical support to peacekeepers should be undertaken by troop contributing nations and/or the service providers, while all operational functions would be handled by the office of the Force Commander. The most important cost-saving aspect of outsourcing peacekeeping would be the closure of the logistical base at Brindisi, Italy. The expected cost saving would be around $1.29 billion – i.e. $4.47 billion less $3.18 billion, as per the approved budget for peacekeeping operations for the period from 1 July 2004 to 30 June 2005 (which includes the logistics base at Brindisi) (Table 2). When equipment maintenance and the rental of facilities are also removed, the cost reduction would be considerable.
It is important to note that outsourcing would also re-engineer staff in the political offices from 200 to 30, because most functions would be outsourced to NGOs, UN agencies, and the local authorities as outlined earlier. Therefore, 30 personnel would run the political office: six persons per office from each of the four remaining political offices under the Deputy SRSG [Special Representative of the Secretary-General]; and an additional six from the office of the SRSG. The reduced administrative and support services sections would act as QA evaluator for the facilities management office. Therefore, a grand total of 58 staff members -22 QAs [Quality Assurance] and 36 political officers – would be required to run a peacekeeping operation when all non-core functions were outsourced. When this is compared to an average of 1,200 who are usually required to run a peacekeeping operation at full strength, there would be a major saving in reduced overhead and administrative costs.

In sum, “outsourcing the activities and functions of the integrated support section and the administrative services section would lead to a 98% reduction in staff strength, or 1,142 personnel including local nationals. This represents a saving in fixed costs – i.e., salaries, allowance, medical pension subsidies, and gratuities. The reduction of staff strength on peacekeeping operations would mean that the size of the DPKO would be reduced, since there would be fewer logistics services to provide. In all, considerable savings in staff remuneration would be recouped.”

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May 12, 2010 Posted by | Civilian Contractors, Private Military Contractors, Private Security Contractor, United Nations | , , , , , | Leave a comment

Can PMCs Find Their IHL Groove?

Fitting a Square PMC Into a Round IHL

David Isenberg at Huff Post

As I have noted previously, trying to apply International Humanitarian law (IHL) to private contractors is often extremely difficult.

There is, of course, much precedent for the presence on the battlefield of individuals who are not formally members of the belligerents’ armed forces. The 1949 Geneva Convention on Prisoners of War (POW) granted POW treatment to civilians who “accompany the armed forces without being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, and members of labor units or of services responsible for the welfare of the armed forces.”

Civilians enjoyed protection against direct attack; however, it was well accepted by this time that if they took up arms they rendered themselves targetable. In a memorable event involving such individuals, over one-half of the American defenders at Wake Island were civilian contractors building a U.S. naval base when the Japanese attacked in December 1941.

Still, despite the fact that the latest wave of private contractors is now at least twenty years old, to give a conservative estimate, trying to decide their status is still enormously contentious.

To understand just how contention see this article by Michael Schmitt, professor of public international law at Durham University Law School.

Schmitt starts by noting that in 2003, the International Committee of the Red Cross (ICRC), in cooperation with the T.M.C. Asser Institute, launched a major research effort to explore the concept of “direct participation by civilians in hostilities” (DPH Project). The goal was to provide greater clarity regarding the international humanitarian law (IHL) governing the loss of protection from attack when civilians involve themselves in armed conflict.

Although the planned output of the project was a consensus document, the proceedings proved highly contentious. As a result, the final product contains the express caveat that it is “an expression solely of the ICRC’s views”.

Aspects of the draft circulated to the experts were so controversial that a significant number of them asked that their names be deleted as participants, lest inclusion be misinterpreted as support for the Interpretive Guidance’s propositions. Eventually, the ICRC took the unusual step of publishing the Interpretive Guidance without identifying participants. Schmitt participated throughout the project, including presentation of one of the foundational papers around which discussion centered. He was also one of those who withdrew his name upon reviewing the final draft.

Although his article is not primarily on private contractors Schmitt notes:

At the outset of these conflicts, the activities and status of contractors were relatively unregulated in either law or policy. As a result of the public attention drawn by the scale of their presence and repeated incidents of misconduct, some states have endeavored to define the legal status of contractors and to create systems whereby they can be held accountable for abuses they commit. Additionally, states sending and those receiving contractors and civilian employees have negotiated status of forces agreements, which establish jurisdictional prerogatives; the agreement signed between the United States and Iraq in November 2008 is especially notable. States have also begun to adopt common “best practices” regarding private military companies, as exemplified by the ICRC/Swiss government sponsored 2009 Montreux ocument.

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May 7, 2010 Posted by | Civilian Contractors, Contractor Oversight, Legal Jurisdictions, Private Military Contractors, Private Security Contractor | , , , , , | 1 Comment

Narrowing PMC Legal Ambiguity

David Isenberg at Huff Post

For many years both supporters and critics of private military and security contractors have agreed that PMC legal status is ambiguous. As they are neither regular military forces or classic mercenaries it has often been unclear whether, and, how laws, especially international humanitarian law (IHL), can be used to prosecute them, if they do something wrong.

The international laws that exist, such as the Geneva Conventions, or the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, and regional conventions, were formulated with classic mercenaries in mind. Thus, they are generally viewed as inapplicable for use in determining criminal liability.

But a recent paper argues that there is room for hope, Ottavio Quirico argues that, under certain circumstances, private security contractors can be de facto assimilated to subjects formally classified under IHL. In this light, the ambiguous legal status of private security personnel with respect to war should have a limited impact on criminal liability.

His paper is, “War Contexts: The Criminal Responsibility of Private Security Personnel” published earlier this year by the European University Institute in Italy.

His conclusion is:

Overall, the ambiguous status of private contractors under IHL could often be overcome by assimilating de facto their position to that of formally classified parties, In this light, the uncertainty of the official qualification should have a limited impact on criminal liability. The propriety of the current national and international regulation applying to the criminal responsibility of PSC personnel can be questioned from the viewpoint of both equity and completeness. In theory, it affords multiple means for trying PSC personnel responsible for war crimes or direct participation in hostilities. In practice, the unwillingness or incapacity of States to prosecute proves a major obstacle for the efficiency of the system. By overcoming the frame of State sovereignty, the ICC [International Criminal Court] provides appropriate mechanisms for implementing the existing rules, but its jurisdiction is limited by the founding Treaty.

Original Here

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May 3, 2010 Posted by | Civilian Contractors, Contractor Oversight, Legal Jurisdictions, Private Military Contractors, Private Security Contractor | , , , , , , , | Leave a comment