Tag: private military contractors

Identity Under Threat

Blackwater, the infamous private security contractor (that is, 21st century mercenaries), changed its name to Xe, but that didn’t work.  So now: ACADEMI.  Really.  I am not kidding.  This seems to be a focus group mistake.  After all, if you want to have the image of being decisive, forceful, reliable, and assertive, do you really want to identify yourself with academics who dither, passive, and cannot meet a deadline to save their lives?  Sure, we are good at attacking strawmen (strawpersons?), but real people with guns shooting back?  I didn’t think so.

So, let’s ask the interwebs: what should be the new name of Blackwater Xe ACADEMI?

Here are a couple of suggestions to get us going:

  • Mercs’ R Us
  • Xarbucks
  • TMI [The Military Inc.]
  • Xpendables
  • The Starks
  • The Knights Who Say Ni!

What say you?


Worst. IHL. Treaty. Evar….

Suspected Mercenaries in Libya

I really do more things than tweeting, but this morning I got up to find that the ICRC had sent out a message that simply stated the title of the Convention of the OAU for the Elimination of Mercenarism in Africa. Libreville, 3rd July 1977 and a link to the treaty.

I can only assume they’re doing it in response to the situation in Libya where it has been alleged that Gaddafi has been using mercenaries (from Chad? Nigeria?They seem to deny it, claim to be ordinary African migrant workers) to back up his regime.

I find this interesting for a few reasons. The ICRC has tweeted the treaty with zero context whatsoever. As if this was a normal thing to tweet out on a Saturday morning in Geneva. But I hear they’re having a bad ski season, so that might explain it.

The other thing is that this treaty is often held up as an example of just how ineffective IHL is at regulating private actors such as mercenaries and private military companies in conflict.

A brief history of the treaty is that it was written in the 1970s when there were concerns that colonial powers and the then-Apartheid government of South Africa – both who were seen as wanting overthrow left-wing/Marxist/anti-colonial governments – were using mercenaries.

Yet you don’t even need a close reading of the treaty to realize what the problem is. According to Article 1:

1. A mercenary is any person who:

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.

How could one possibly prove 1(a) and (c) in court? They have to do with motivation which, unless the person was stupid enough to write “HA! HA! Today I am a mercenary and I have been specifically recruited to fight and I am solely motivated by profit! HA! HA!” in their diary, would be something that is easy to challenge in any defence. Certainly if the person said that they were motivated by ideological factors, they would fall outside the definition provided.

As Geoffrey Best is often quoted as saying, “any mercenary who cannot exclude himself from this definition deserves to be shot — and his lawyer with him”.

So while I am sympathetic with the ICRC for reminding one and all about the relevant treaties applicable to the situation, there are some difficulties. I’m actually more concerned that this is fueling an anti-foreigner witch- hunt that seems to be taking place where anyone who is suspected of being a mercenary could be attacked while the situation is so chaotic. Certainly the ICRC could have tried to provide some context?

But even beyond linking to a rather useless IHL treaty, perhaps they might focus on Additional Protocol II (which Libya signed in 1978) or at least its customary provisions. While the application of APII is very rare (and it is a pretty weak Protocol) certainly it’s possible to argue that it’s a point where it is applicable? Or is that to make a normative judgement upon the status of the conflict?

Perhaps the best thing about this situation is to renew discussions about how to regulate private actors in conflict, along the lines of the 2008 Montreux Document.


What is the status of CIA drone operatives in international law? (Short answer: I don’t know, but that shouldn’t matter.)

Despite our modern ideas about a separation between civilians and soldiers in international law (and then complain about the breakdown of the legal distinction in counterinsurgency conflict or situations like Pakistan), civilians have almost always accompanied military forces into the field. These include journalists, clergy (not within the armed forces of an army) and “camp followers” which may have included cooks, tailors, menders, prostitutes, etc.

That these individuals were there and an essential part of the operations of the armed forces, was accepted. Yet, because they were not formally “enlisted” they were considered as civilians and not subject to direct attack so long as they did not take a direct part in hostilities.
This doesn’t render the principle of distinction irrelevant of course. It’s still one of the key principles upon which the law of war rests. However, it does suggest that we sometimes forget that the line has not always been crystal clear between combatants and civilians.
Yet, a major recent difference has been the increasing technological dependence of the armed forces in their military missions. This has resulted in civilians working on computer and weapons systems, possibly crossing certain lines in terms of distinction and participating in a conflict in a direct way.
Efforts trying to regulate civilian participation have not been particularly successful. As is relatively well known, efforts to regulate private military firms (PMFs) have been less than satisfactory (and even the US government who employs them has trouble exercising jurisdiction over their behaviour). The Montreux guidelines are just that – guidelines – and without any enforcement mechanism.
However, the CIA drone issue is different from that of PMFs. The CIA is a state-sanctioned institution. It’s armed and uses force against other actors. So what does it mean for their status under their international law? Are they directly participating in hostilities? Is their participation allowed?

Other important “guidance” here comes from the (controversial) ICRC study on the direct participation in hostilities. This document has been, is and will be subject to a lot of scrutiny (and it will be interesting to see, exactly, which states consider it authoritative. I’m thinking not many…). However, for our purposes here, a lot of the criticism (typically directed to ‘insurgent’-like actors and a supposed ‘revolving door of protection’) does not really apply.

Actually, the position taken with regards to private military firms and civilian employees would seem consistent with what the United States has typically put forward:

III Private contractors and employees of a party to an armed conflict who are civilians (see above I and II) are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. Their activities or location may, however, expose them to an increased risk of incidental death or injury even if they do not take a direct part in hostilities.

The fifth point of the study, (V Constitutive elements of direct participation in hostilities) is more controversial as some might deem the criteria as far too narrow for the purpose of modern fighting. (ie: On just one point, the United States would likely argue that someone who did financing for a terrorist organization was ‘fair game’). While this might provoke more controversy for their targets, for our purposes, the DPH guidelines suit the CIA Drone pilots rather well.

In order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria:
i. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and
ii. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and
iii. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).

Regardless of whether or not the threshold is too high or narrow, there is no question that what the CIA drone pilots are doing falls into this category.

Therefore, I would argue the two most important legal issues here are:

1. Is there participation in hostilities legal?
2. Are they subject to attack?

The first question is more difficult to answer than the second. I would argue that the default position regarding civilians accompanying armed forces is that their presence may be authorized by a state/military force (because of the increasing essential tasks that they perform). In this sense, I would argue that their presence is legal if they are authorized by a state and armed forces AND they carry out their operations in line with the laws of war. This implies that all actors should receive instructions and training in the laws of war.

Key to this framework – and I think this is rather obvious from what is stated above – is that although civilians may accompany the armed forces and assist them in a variety of ways, they remain civilians – not combatants or non-combatants (which, in US military parlance are considered to be chaplains and medical personnel). However, they are different from “regular” civilians in that their functions in relation to combat render them targetable.

If we take the case of a contracted computer specialist who accompanies a unit to a forward operating base, I would suggest: 1) His presence is legal. 2) His activities may constitute direct participation in hostilities 3) He may be subject to attack. 4) He, like the rest of the armed forces, must carry out his activities in line with the laws of war.

I think it is clear that for policy reasons the military should do its best to ensure that his participation does not constitute combat functions – although where one draws the line in this day and age is almost impossible to tell.

Article 4(A) of the Third Geneva Convention also makes it clear that should these authorized individuals be captured in an international armed conflict that they are to be given POW status. States/armed forces must therefore provide such civilians with appropriate identification cards.
However, again the CIA case is difficult because it poses several direct challenges to this scenario.

As suggested above, legal questions surrounding the participation of civilians revolve around civilians accompanying the military into the theatre of operations. The CIA case is different – many, if not most, of the operations seem to be coming from abroad or within the United States. Are the civilians therefore within the theatre of operations? And does distance render this ‘arithmetic’ irrelevant?

An important question here is whether or not the CIA operations can be considered as supporting military operations? The CIA program seems to operate at arms length from the DoD/Air Force Program – although how near or far is almost impossible to say. It may be that the CIA and US government considers the Agency to be part of the broader effort in the abstract “War on Terror” and therefore, yes, they are supporting military operations. They may also see themselves as working within a “self-defence” scenario whereby they are responding to the threat of terrorism posed by radical extremists in Pakistan.

Others, however, may see this as problematic because, legally, the conflict in Pakistan must be considered separately – not as an international armed conflict, but as an internal armed conflict and subject to a different set of international rules.

I think questions as to the status of the legality of the conflict in Pakistan are jus ad bellum issues and I will ignore them for the purpose of this post. I am also going to work from the assumption that a drone attack is an “armed attack” for the purpose of the laws of war and that this makes it the appropriate law to apply when considering the CIA operations.

I would therefore apply the following argument regarding the CIA drone pilots:

1. They are civilians.
2. Their activities constitute direct participation in hostilities in a law of war context.
3. They may be subject to attack, regardless of their location. The same may be said for a civilian who provides logistical support for military operations at the Pentagon. Of course, the same may not be said of a civilian who works at the Pentagon Best Buy (and yes there is one) who is supporting the staff who work at DoD, but is not directly participating in hostilities. This individual may be at risk because he/she works at a military target, but is not targetable. He/she must be taken into a proportionality consideration when a strike is being considered or planned.)
4. Their armed attacks must be carried out in line with the laws of war.

But what about their legality?

There is no question that the CIA is not part of the armed forces of the United States. Typically referred to as “other government agency” in military documents, one typically struggles to see them named within the DoD literature.

Yet international law stipulates that armed forces are not necessarily the only groups which may participate on the battlefield. For example, in a situation of a “mass uprising” (levée en masse), civilians may participate in an armed attack with immunity. Similarly guerrilla/partisan movements which follow certain rules have been recognized by the law of armed conflict since 1949.

However, none of these categories work particularly well. The CIA operatives do not meet the standards of these categories and nor were these categories ever really intended to apply to state actors. Ultimately, the Agency represents not “the” armed forces of the United States but “an” armed force of the United States. And this is essentially the main difficulty with regards to their legal classification.

Therefore, I simply can’t help but conclude that the CIA program is operating in a legal grey area – there is just not enough law or examples to render a crystal clear verdict on the status of the CIA operatives. The state-sanctioning of the activity means that they are not simply rogue individuals who are operating like some kind of armed group (unless you want to consider it a state-sanctioned armed group – in which case I don’t know how you would distinguish this from the armed forces). There are differences and developments here which international law has not yet had a chance to catch up with.

Practically, however, this should not make an operational difference. As I have suggested above, I think regardless of who is carrying out the attacks, they must be done in accordance with the laws of war. This is the really important key factor – at least for me. Not who is carrying out the attacks, but whether they are actually done in accordance with the applicable law.

It seems to me that there is no doubt that the individuals who are carrying out these activities are directly participating in activities and are targetable. Additionally, their civilian status does not relieve them of law of war obligations.

To me it would seem that the legality of the participation becomes really important if someone wanted to arrest and charge the CIA pilots for their missions. Practically speaking, I find this highly unlikely.

However, there is a more important issue of accountability here – what happens in a case of gross negligence? Or A clear violation of the laws of war? Who is responsible? I think this is where there is more room to be concerned. And how this will play out remains to be seen.

I’m curious as to what other international legal-politicos out there think of this. Am I missing something? Law simply does not have all of the answers – at the end of the day, I think it will be more helpful if the CIA program is going to have to be judged on its effectiveness vs the amount of damage it does and this will likely be done on political and moral grounds.


Step Aside Blackwater/XE Services…

The “market” seems to be working in some sectors in Iraq and Afghanistan. New private security firms are popping up everywhere. Ten thousand Ugandans have gone to work as security guards in Iraq in the past two years. Now many are looking for work in Afghanistan. From the BBC:

Seth Katerema Mwesigye, an instructor at Watertight, says the money has made him wealthy by Ugandan standards.

“I was a student at Makerere university, but when I left, I did not have land. When I came back, I bought land and cows. All that money came from Iraq.”

Mr Masiko says that Iraq has proved to be a lucrative opportunity for security firms and their Ugandan recruits.

But he says the company now needs to stay ahead of the increasing competition in the security sector and look for opportunities in new places.

“More companies are coming in and they are ready to recruit for much less than we are offering which is $700 or $1,000 (£600) per month,” he says.

“Also you realise that other countries are coming into the market on the other side.
Originally Kenyans were not doing security work but today, there are more than 500 of them in Iraq and they work for as little as $400 per month.

“So we are facing competition.

“But all eyes are now on Afghanistan. We hope that as it opens we are going to get more business there,” he says.

This is the future that Deborah Avant began warning about nearly a decade ago when she began work on The Market Force: The Consequences of Privatizing Security. It’s still the best read on the topic.


Breakdown of Troop-Contractor Distribution in Iraq and Afghanistan

Today’s Wall Street Journal notes that the number of private military contractors (PMCs) current outnumbers the number of military personnel serving in Afghanistan, and the numbers are extremely close in Iraq:

A few points to make:

  1. The data illustrate that with the troop surge in Afghanistan has come a slight uptick in the number of PMCs, but overall contractors have far outnumbered troops in that theater. What the article does not discuss is the distribution of duties and roles for PMCs and how that may have shifted over the past few years. I’d be interested to see how fallout from various incidents (i.e. Blackwater [Xe]), while not decreasing the number of PMCs, has altered the kinds of tasks contractors are performing
  2. Given the reduced size of the military since the Cold War and current US commitments, there is likely to be (and continue to be) a tight correlation between the number of US personnel and number of PMCs, as many PMCs serve service and logistic roles necessary to support combat personnel. This creates a problem for the Obama administration as it’s stated goal was to reduce reliance on contractors. Unless they alter current structural conditions (i.e. increase size of military and/or reduce commitments abroad) they won’t really have a choice but to continue to rely on PMCs.

via iammilitary


Why So Little Citizen Input In Security Policy?

This week I visited the Kennedy School to attend a symposium on Security Sector Reform (SSR). SSR aims to bring organizations with the authority to use or order the use of force better in line with the rule of law and the needs of ordinary people.

The speakers at the symposium were particularly concerned with how to make security forces – police, peacekeepers, soldiers, the judiciary – more accountable to women’s needs, so that for example private military contractors wouldn’t get off scot free after trafficking women and girls in Kosovo. And they were particularly concerned with how human rights advocates could better access security institutions so as to press claims on behalf of individual citizens.

All this talk about citizen input and private contractors in particular got me thinking about the DoD’s rule-making process. Though no one I spoke to at the Kennedy school seemed aware of it, the Federal Times reported Tuesday that the DoD has proposed a new rule regarding private military contractors in the hire of the US government: that they be required to train in the laws of war before deployment.

Now, you might very well question whether such a rule goes far enough in governing the conduct of these individuals. (Gender-mainstreaming advocates up at the Kennedy School, for example, would want to know whether the training will explicitly incorporate information on rape and sexual exploitation).

The important thing, and what many people seem not to understand, is that if you have such questions or wish to suggest modifications to the rule, you can write the DoD and tell them so, and they are required by law to consider your point of view.

Yes, the DoD is a Federal Agency, and like other regulatory agencies that translate law into specific rules governing the conduct of various actors under US jurisdiction, the DoD is required under the Administrative Procedures Act of 1946 to notify the public of proposed rules and entertain public comment about their content.

This “notice and comment” process is arguably the most truly democratic, deliberative process in America today (outside of the caucus system). It is, essentially, town hall meetings on issues at a federal level. Federal civil servants are required not only to receive public comments, but actually to read them and consider them before finalizing a rule.

The process should be quite familiar to anyone who follows environmental or health policy – citizens are frequently asked by special interest groups to send comments in to the Fish and Wildlife Service when it considers whether to put polar bears on the endangered species list, to the Food and Drug Administration when it considers whether food containing GMOs should be labed “Organic,” to the Federal Communications Commission when it considers censorship rules for television, or the Department of Transportation when it considers whether to increase the CAFÉ standards for automobiles.

But very few American citizens seem to realize that the same process applies to the US national security sector. In the past year, for example, the DoD has proposed or finalized rules regarding radio frequency identification tags on supply shipments, the implementation of the Freedom of Information Act with regard to classified information, and what rules apply to private military contractors in stability and support operations.

The public has the opportunity to affect these rules. But unlike rule-makings in other issue areas, defense rules seldom garner much public comment. For example, the 2005 rule governing civilian contractors deploying with the military in Iraq (where it was determined that they should be allowed to carry weapons, though they remain civilians in terms of the laws of war) received only 22 public responses during the “notice and comment” period. Compare this to 282,992 comments submitted to the Fish and Wildlife Service over whether to take the grey wolf off the endangered species list, and 536,967 submitted to the EPA over whether mercury should be considered a hazardous air pollutant.

There is no reason why US citizens shouldn’t take as active a role in communicating to the security sector our expectations regarding important issues such as how to hold private military contractors accountable.

To review the proposed rule on training PMCs in the Geneva Conventions, go to the Federal Register.

To submit comments to the DoD on this rule, email dfars@osd.mil and include DFARS Case 2006-D035 in the subject line of the message, or visit the federal government’s erulemaking portal here.


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