OVERSEAS INTEL

Guns for Hire: Private Military Companies and their Status Under International Humanitarian Law

June 5, 2015 | Humanitarian & Aid, OVERSEAS INTEL, The Danger Zone

However out of the common road seems to be, currently new security or military assistance providers rise up in the private sector. Private military companies (PMCs) are becoming a worldwide well-known occurrence. These quite new entities perform tasks in uncommonly blurred situations where the action of pointing out the boundaries between legal and illegal is a demanding job.

The new business branch of security provided by private companies is responsible for handling large amounts of weapons and military equipment. It offers its services in support of military operations enrolling former militaries as civilians to carry out passive or defensive security.

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Often addressed as mercenaries, they do not fall under the international humanitarian law definition for this category of personnel and modern-day PMCs prefer to refer to their staff as security contractors or private military contractors. The definition of mercenary under international law is so exclusive that it is difficult to outline who would actually qualify as a mercenary. A repeatedly and notorious quotation belongs to Geoffrey Best and fully explains this inconvenience: “any mercenary who cannot exclude himself from this definition deserves to be shot - and his lawyer with him”. The initial point was the statement that “these private military companies act in a void, virtually free from legal restraints”.

BRIEF SCOPE OF THE INDUSTRY

March 31, 2004. City of Fallujah. Iraq. Four employees of the US-owned private military company Blackwater are ambushed and killed by an angry Iraqi crowd, their corpses incinerated and mutilated, and then hung sinisterly from a bridge. As a response, because the city of Fallujah was like a painful thorn for the US forces since their arrival in Iraq, the following assault that involved both participation of US forces and Blackwater contractors on Fallujah in April 2004, using a total disproportionate means of attack, have resulted in raising questions about the connection between the military and these contractors and the exactness of addressing them as civilian contractors. Second example refers to the participation of employees of the private military company CACI in the mistreatment of inmates at the Iraqi Abu Ghraib detention facility and the attention drawn by the tasks these contractors are performing, as well as to their accountability for human rights abuses they may commit.

These two incidents draw the public opinion attention on the feeling of mightiness hese PMCs have about themselves. Held under the auspices of the United Nations, an assembly of specialist on the subject of PMCs industry pointed out, into a report, that all these armed entities maneuvers in a field of activity valued at US$100 billion. Therefore, this fellowship represents a compelling strength that will not dissipate all at once. PMCs play a worldwide substantial role, frequently with strategic effect on both the process and consequences of conflicts.

As for the types of services they provide, Peter Singer separates PMCs into three business sectors: 1. “military provider firms supplying direct, tactical military assistance that can include serving in front-line combat; 2. military consulting firms that provide strategic advice and training; 3. military support forms that provide logistics, maintenance and intelligence services to armed forces”.From instructing military personnel in former Yugoslavia, in collaboration with regular armed forces, raising encampments for dislocated individuals in Macedonia, helping US Central Intelligence Agency in South America in its fight against drugs and protecting oil pipe lines and diamond mines in Africa to a wide variety of tasks performed in Iraq and more recently in Afghanistan, private military companies have been implicated in an extensive range of missions and expanded their tentacles all around the globe. “In Angola, for example, domestic laws require extraction companies to bring their own security forces, many of which may end up engaged in battles with local rebel groups”. Governments may use, also, private military companies in order to elude some imposed constraints, like it is, for instances the number of regulate army troops being sent in missions abroad.

In Afghanistan, although the RSM (Resolute Support Mission) presence is twisting down, “the increase in the contractors to troop ratio is yet another indication that although the vast majority of troops are leaving Afghanistan, a private army will remain in the country for years.” A brief analysis of these numbers (figure 1), from 2010 to 2015, proves that, indeed RSM troops are, slowly but surely, being replaced by a subcontracted private army. As resulting from the analysis, even if the troops are leaving Afghanistan their tasks are taken over by the private military companies, proven by the exponential increasing ratios. A comment is, also, needed to be done. The number of private contractors represents only those employed by U.S. companies, but not necessarily Americans. These figures only count those contractors employed by the U.S. Department of Defense. Taking into account that many other institutions or private companies use these contractors, too, the ratios are even higher or even more disproportionate. Using private military companies may have some possible advantages like rapid deployment, the mitigation of public opinion on use of regular armed forces or they can act like a counter weight to local armed forces in countries where the political institutions have no, or no longer, a real authority. Also, outsourcing some military services, like logistics or maintenance, can be justified by a desire of seeking efficiency and allowing the regulate military forces to focus on the main, more important, combat missions.

Real or not, these advantages are counter balanced by some important disadvantages. Private military companies’ employees are rather motivated by financial gain then by a sense of duty and they do not follow a military hierarchy.

CONTRACTORS UNDER INTERNATIONAL HUMANITARIAN LAW

The root for the mercenaries’ status finds its place of birth within the Protocol Additional I (adopted on 8th of June 1977) to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts. Also, their status is defined in two other international conventions: first comes the International Convention against the Recruitment, Use, Financing and Training of Mercenaries adopted on 04th of December 1989 by United Nations General Assembly Resolution A/RES/44/34, entered into force on 20th of October 2001 and, secondly, Convention for the Elimination of Mercenarism in Africa, entered into force on 22nd of April 1985. Since the mercenary conventions appropriate delimitation for mercenary term that is comparable to that established in Article 47 of Protocol I, I shall use that definition.

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A mercenary is any person who:

a) is specially recruited locally or abroad in order to fight in an armed conflict

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 substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; Figures reported on the RSM official website on the same placemats as the total figures of RSM troops (see below notes 11 to 16). Ian S. Livingston, Michael O’Hanlon: “Afghanistan index”, Brookings Institute, 10th of February 2015.

d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; Figure reported on November 15, 2010 on International Security Assistance Force official website. See it at (last visited on 25th of April 2015).

e) is not a member of the armed forces of a Party to the conflict; and has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.”

One is possible to be framed as mercenary, if, cumulatively, fall under all these six conditions. This definition is simply too restrictive and infeasible. It’s an undisputable reality that nowadays international conflicts are supported by many countries around the world. And, also, take into account that there is not only a probability, but certitude that the majority of these private security companies’ employees are nationals of a party to the conflict - subparagraph (d). So, after all, Geoffrey Best was right in his statement about the huge opportunity of driving through the stipulations of this definition. Figure reported on December 04, 2012 on International Security Assistance Force official website. See it at (last visited on 25th of April 2015). Figure reported on December 01, 2013 on International Security Assistance Force official website. See it at (last visited on 25th of April 2015). Figure reported on November 07, 2014 on International Security Assistance Force official website. See it at (last visited on 25th of April 2015).

Analyzing the status of private military companies' employees usually stops with framing them if they qualify as mercenaries. But this assessment doesn’t answer the question of how private military companies’ employees are allowed to behave in conflict situations. If it’s tried to regulate the PMCs status, it is imperious to deliberate upon whether their employees are civilians or combatants.

Combatants are “members of the armed forces of a Party to a conflict (other than medical personnel and chaplains), that is to say, they have the right to participate directly in hostilities”. Being a combatant exempts one from any criminal charges (such as killing an enemy), as long as his behavior doesn’t break international humanitarian law norms and, furthermore, grants him prisoner of war status.

Since PMCs employees are not members of the regular armed forces, the conclusion is that they cannot be assimilated to combatants, so they do not benefit of a prisoner of war status, fact specifically mentioned in the Protocol I to Geneva Conventions, first paragraph of article 47.

From international humanitarian law point of view, somebody can be a combatant or a civilian. Therefore PMCs employees may be assimilated with civilians. But a civilian is defined as “any person who does not belong to one of the categories of persons” defining combatants. But many PMCs employees take direct part in hostilities while others, although they do not directly take part in hostilities, they bring a certain advantage to the war effort, depriving them, even more, of a possible civil status. But nobody is allowed to breach the norms of international humanitarian law and, so, these civilian contractors may be trialed under their national jurisdiction and in accordance with the national norms on mercenarism (if that certain state has specific norms incriminating mercenarism).

With the increasing use of private military companies’ personnel around the world, now more than ever it’s necessary to regulate their activity.

There is much confusion over human rights mistreatments executed by private military companies. All these non-state entities must be accountable for violations of human rights and is, also, necessary to show the responsibility of individuals under international humanitarian law. One option for building human rights legally stringent for private military companies is to concept them as institutionalized agencies. Another way is to write human rights stipulations promptly into contracts assumed with these PMCs. These solutions do not necessarily represent the law as it stands now, but rather reflect the direction in which the law should go.

Another idea would be to create a convention that would specify the minimum control standards, such as a new system of granting the functioning license that would include an exact list of the activities performed by a specific PMC.

CONCLUSIONS & ACKNOWLEDGMENT

Being motivated by their own profit, it seems that private military companies will remain an integrate part of the security environment in the predictable future and it is an unquestionable need of improving the regulations, either by national or international measures. It’s understandable why they will always have pretenders for employment, since after the end of The Cold War and the completion of the world’s bipolarity, once the armies start reducing their personnel, there is a large amount of specialized military work force, especially former special operations fighters that found themselves in harsh financial situation.

These private military companies operate in extremely obscure circumstances where the border between a legal behavior and an illegal combat conduct is difficult to be identified.

Individuals carrying and using weapons or fulfill other essential military functions, under any circumstances they cannot be framed as civilians. Those individuals carrying weapons can permutate in an effortless manner from a defensive to an offensive posture and can perpetrate human rights violations. They cannot be assessed to combatants or supporting the combatants under international humanitarian law either, since they are not part of the armed forces or in the chain of command, and often belong to a large number of different nationalities. PMCs employees cannot, mostly, be considered to be mercenaries in the sense given by the definition of mercenaries as stipulated in the international conventions.

Private military and security companies operate in a legal vacuum: they pose a threat t ocivilians and to international human rights law and this happen when PMCs stop taking orders and start taking over. Once the military’s stretchiness it’s increasing more and more, day by day, the more governments are going to hand over many of their functions to outsourced armies, because for some war is big business and this fact is accepted by some governments and the need to have a clear definition for this category of personnel raises, in order to distinguish them from other categories existing nowadays within a modern battlefield.

Sources include:

1. http://www.thefiscaltimes.com/Articles /2013/05/10/US-Troops-Replaced-by-anOutsourced-Army-in-Afghanistan#page1
2. http://www.dailymail.co.uk/home/mosl ive/article-1360216/How-make-killing-KabulWestern-security-crisis-Afghanistan.html
3. http://www.nato.int/isaf/placemats_arc hive/2010-11-15-ISAF-Placemat.pdf
4. http://www.nato.int/isaf/placemats_arc hive/2011-12-08-ISAF-Placemat.pdf
5. http://www.nato.int/isaf/placemats_arc hive/2012-12-04-ISAF-Placemat.pdf
6. http://www.nato.int/isaf/placemats_arc hive/2013-12-01-ISAF-Placemat.pdf
7. http://www.nato.int/nato_static_fl2014/ assets/pdf/pdf_2014_11/20141111_141107- ISAF-Placemat-final.pdf
8. http://www.nato.int/nato_static_fl2014/ assets/pdf/pdf_2015_02/20150227_1502- RSM-Placemat.pdf

Why Afghanistan will not become the next Iraq

June 3, 2015 | The Danger Zone

As the Iraq crisis deepens, some commentators have taken to inaccurately comparing it to the situation in Afghanistan. Predictions have been made that, a few years after the withdrawal of international forces, Afghan security forces would crumble in the face of the insurgency and the Taliban would retake most of the southern and eastern provinces.

Then supposedly, the Pakistani Taliban would merge with the Afghan Taliban and together would announce an Islamic State under the leadership of the already declared commander of the faithful, Mullah Mohammed Omar. Subsequently, al-Qaeda and other global jihadist organisations would come back to their old bases in Afghanistan.

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Such predictions are cited by some as a warning to the US against withdrawing from Afghanistan, in light of US President Barack Obama's plans to pull US troops out by the end of 2016.

There are problems, however, with both the comparison and the implied solution - i.e. US troops staying in Afghanistan. Indeed, conditions in the two countries bear some similarities. There are insurgencies in both countries rising up against foreign intervention and an unpopular government. Another is a political divide along ethnic or sectarian lines that has set the ground for the insurgency to attract those excluded from the political process. The third similarity is geopolitics: Both countries are surrounded by neighbours and regional actors who support one side or another in the conflict.

However, there are underlying factors that make the situations in the two countries significantly different and an Iraqi-style scenario in Afghanistan unlikely.

Definable historical patterns

The first factor is history. Iraq's current conflict is too recent to be broken into definable historical patterns. That means there is a risk that the situation might evolve into more chaos. By contrast, the current conflict in Afghanistan is now well into its fourth decade and it can be divided into distinct periods and fairly definable patterns. Earlier periods saw wild, comprehensive, high-intensity conflict. Now it is much more geographically confined, and far lower in intensity.

Starting with the Saur Revolution that brought a communist cabal to power, ushered in the Soviet invasion of the late 1970s and later provoked a popular jihad against the invaders in the 1980s, to the bitter infighting among the mujahideen or fighters in the 1990s, through the Taliban's civil war to the current insurgency, the conflict has gradually become less lethal.

For example, more than 25,000 people were reportedly killed in a single event in the Herat uprising in 1979. For the past 13 years, the conflict has killed between 50,000 and 60,000 people. By contrast, Iraq's death toll has reached well over 200,000 people since the US invasion in 2003, according to the Costs of War project.

From an Afghan point of view, Iraq now appears to be at the same point as when the Taliban - like the Islamic State today in Iraq - rose against the corrupt and powerless government of the mujahideen whose warlords and commanders had regularly oppressed the population.

Afghanistan will not be taken over by the Taliban again, as the current situation in the country is very different from the mujahideen's rule in the 1990s. In this sense, if the Taliban try an offensive, the general Afghan population will not see them as saviours from chaos once again and will not concede to their rule. In fact, most indicators point in the other direction. Afghanistan has seen a significant socio-economic and political transformation since the 1990s: an improved economy, growing urbanisation, improved governance, and greater access to health care, schools and universities for the general population.

Different divides

The second factor making Afghanistan different from Iraq is the fault lines of the conflict. In Iraq, sectarianism is probably the key driver of conflict. The rampant pro-Shia chauvinism of the Baghdad government has provoked anti-government sentiment within the Sunni population, which has created a supportive environment for militant groups, such as the recently renamed Islamic State.

Afghanistan, by contrast, has no such politically relevant sectarian divide that could be exploited by Sunni extremists. Instead, Afghanistan is susceptible to ethnic divisions, but these are much less potent than Iraq's sectarianism.

In Iraq, the Islamic State group is driven by a deeply sectarian ideology - with a regional slant - that makes it far more violent; it also sees itself as part of a broader, ideological struggle, not confined to Iraqi or Syrian borders. The Taliban, on other hand, although Sunni, strive to shun sectarian and ethnic overtones from their discourse, promoting a more political and patriotic narrative for the cause. When there were sectarian attacks in late 2011 - the twin bombing of Ashura commemorations in Kabul and Mazar-e Sharif, which killed about 60 people, the Taliban swiftly condemned it.

Because of the absence of the sectarian factor, there is a potential for the Taliban's political grievances to be addressed far more easily through political accommodation as opposed to the agenda of the Islamic State group.

Geopolitical differences

The third factor is geopolitics. Like Iraq, Afghanistan is flanked by largely unhelpful neighbours and regional actors vying for a stake in its affairs. Iraq, however, lies exactly in the heart of the Saudi-Iranian rivalry for regional influence exacerbated by sectarian tendencies in both nations. Afghanistan, too, is seen as another theatre of rivalry between the two, but not as relevant or important to either as Iraq is.

It seems that the more chaotic and internationally unmonitored a conflict becomes, the more regional actors get a chance to get involved. There is no indication of a waning in Saudi or Iranian regional ambitions in the wars in Syria and Iraq and there is no international action that might stop them. This heated, open regional struggle finds good proxies in Iraq.

In Afghanistan, one could argue that it is the wider Pakistan-Indian conflict - rather than, say Pakistan and Iran - that has helped drive the war, although it is only Pakistan which provides safe haven and support to the Taliban.

The conflict in Afghanistan has become much more restrained recently, which does not allow much room for outside intervention. Furthermore, the strong disinclination of both the government in Kabul and of the Taliban to be seen as puppets of regional actors keeps in check any ambitions regional players might have. Apart from these internal dynamics, the whole region, including Pakistan, is fearful of destabilising the country again. Particularly, bringing back Taliban rule benefits no country in the region.

Geography has one more consequence. Unlike Iraq, which enjoys open routes for foreign militants from the region, especially from Syria, to cross into the country, accessibility for foreign militants who want to enter Afghanistan is limited. The lack of easy routes into Afghanistan, combined with the Taliban keeping a fairly effective monopoly over the insurgency, makes it difficult for a surge of foreign fighters in Afghanistan taking over and controlling the militant group. With lesser leverage for the regional players, and the difficulty of foreign militants crossing into Afghanistan, the conflict should continue to remain a political struggle with reasonably defined goals, one where the insurgents could be accommodated through a political settlement - should there be genuine willingness on both sides.

A potential surge of extremists bent on taking large swathes of Afghanistan and plunging the country into chaos looks unlikely. Therefore Afghanistan is not comparable with Iraq. This would be the case even if there were no consensus government formed in Kabul in the aftermath of the presidential elections. A prolonged conflict as a result of such a scenario will still remain limited in its impact and lethality, and confined within a political framework. Even then, a Taliban takeover would be impossible.

Article by: Borhan Osman is a researcher and analyst with the Afghanistan Analysts Network in Kabul. Follow him on Twitter: @Borhan

Whistleblowers dodge disaster in Supreme Court’s KBR decision

May 31, 2015 | Justice Abroad

The military contractor Kellogg Brown & Root Services won at the U.S. Supreme Court on Tuesday, when the justices ruled unanimously in KBR v. U.S. ex rel Carter that the Wartime Suspension of Limitations Act extends the time limit only for criminal fraud cases, not for civil suits under the False Claims Act. KBR lawyer John Elwood of Vinson & Elkins told my Reuters colleague Lawrence Hurley that the decision should effectively kill a 2011 whistleblower suit accusing the company of billing the U.S. government for months of water purification services in Iraq it didn’t actually provide.

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But whistleblowers won the case as well. The Supreme Court rejected KBR’s interpretation of the FCA’s “first to file” rule, which bars any plaintiff other than the government from bringing a suit related to fraud allegations in a pending FCA case. Citing a split 2014 decision from the District of Columbia U.S. Circuit Court of Appeals in U.S. ex rel Shea v. Cellco, KBR had argued that Congress meant “first filed” when it used the word “pending” in the FCA statute. According to KBR and its business-friendly amici – which groused to the Supreme Court about serial complaints by avaricious whistleblowers – a first-filed FCA suit remains pending for the purposes of the first-to-file bar even after the case has been dismissed.

If the justices had agreed with KBR and the D.C. Circuit, the filing of one FCA case would forever preclude whistleblowers from bringing related claims, regardless of why the original case was tossed. The court, however, said KBR’s “very peculiar” definition of pending distorted both the word’s ordinary meaning and Congress’ intention of deterring fraud. (The opinion, written by Justice Samuel Alito, pointed out that under KBR’s analysis, 1803′s Marbury v. Madison is pending, as is, for that matter, the trial of Socrates.)

Justice Alito said that in the KBR case, for instance, the first FCA suit to accuse the company of overbilling for water purification was dismissed for failure to prosecute. It just doesn’t make sense, he said, to assume that Congress meant for “the abandonment of an earlier suit to bar a later potentially successful suit that might result in a large recovery for the government.” The court said it would hew to the conventional meaning of pending: An FCA suit, the opinion concluded, ceases to be pending when it is dismissed.

That holding, said whistleblower lawyer Colette Matzzie of Phillips & Cohen, is a “tremendous victory.” It’s quite common in FCA litigation, she said, for dismissed first suits to be followed by new complaints that flesh out or expand upon the original allegations. The Supreme Court’s decision will permit the government to continue to collect in such cases, she said.

Matzzie and plaintiffs’ lawyer Mark Hurt, who is facing a pending petition for certiorari by Purdue Pharma in another case involving the FCA’s first-to-file rule, said whistleblowers will still have to show their allegations are not based on publicly disclosed information, which includes previous complaints. And the Supreme Court opinion won’t shield follow-on plaintiffs from collateral estoppel defenses in cases in which judges have dismissed first-filed suits on the merits. But considering the potentially disastrous consequences for whistleblowers if the court had sided with KBR, Matzzie and Hurt said, the opinion is great news.

I reached out to lawyers on both sides of the Cellco FCA case in which the D.C. Circuit adopted the broad reading of the first-to-file rule that the Supreme Court rejected in Tuesday’s KBR decision. (Cellco does business as Verizon Wireless.) The justices have scheduled the Cellco case for conference tomorrow. Neither whistleblower counsel at London & Mead nor Cellco lawyers at Wilmer Cutler Pickering Hale & Dorr got back to me.

By Alison Frankel — Follow me on Twitter

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