An “Environment Full of Liability and Negligence”? - Domestic Legislation of Private Military and Security Companies in Britain and the United States
Max Jimmy René Eriksson S1675508
Dr Gisela Hirschmann (Supervisor) Diana Davila Gordillo (Second reader) MSc Political Science; International Politics
Leiden University 10 January 2020
Abstract: Private Military and Security Companies are today an important tool that can be used by states or international organisations to reach their military goals or maintain security. The development of such firms has not been without problems and some contractors are responsible for wounded or killed civilians. This study looks at the domestic legislation of two states, the UK and US and analyses why they have developed different legislation to prevent similar incidents from happening again in the future. This work finds that the states have a different understanding of the issue on both an economic and political level that has contributed to their legislations.
Table of Contents Table of Contents ... 3 1. Introduction ... 4 3. Theoretical framework ... 9 4. Methodology ... 12 Case selection ... 13 Method of analysis ... 13 Data selection ... 14 5. Analysis ... 15 PMSC legislation in Britain ... 15 PMSC legislation in the US ... 17
Understanding the economic rationality behind UK legislation ... 18
Understanding the economic rationality behind US legislation ... 20
The “arms to Africa” media scandal in the UK ... 22
The Blackwater media scandal in the US ... 24
1. Introduction
With the end of the Cold War, a modernised version of traditional mercenaries would become an increasingly important tool for both states and non-state actors to maintain security. Private military and security companies (PMSCs) are today used as a necessary complement to traditional armed forces in combat zones, and the norm of some western states has been to outsource as much of their armed forces as possible to increase efficiency and effectiveness (Deitelhoff and Geis 2009, 7). It is essential to here make a distinction between modern military contractors and the historical usage of "mercenaries". The main difference between the two is that the former is hired by a company and has to follow the rules and organisation set up by the firm. The firms are then first and foremost held responsible by its shareholders who care about the smooth deployment and professionalism of its personnel to increase their shareholder value or dividends. The expansion of the PMSC industry mean that they are more likely to have contacts with civilians and there have been examples of violations of human rights and international law committed by some firms which contradict the idea that such they are inherently professional. There are generally two different categories of how military contractors are interpreted in an international setting. The then-president of the industry organisation International Peace Operations Association suggested that conflicts in Africa could end with merely "writing a cheque" to private contractors (Brooks 2000). In contrast to this view, Kofi Annan, then-Secretary General of the UN; stated that the world was “not ready to privatise of peace” [sic] when discussing UN interventions (Annan 1998). At the core of both these sides lies the notion that PMSCs fills an essential role for security, but only if they are hired correctly and with clear accountability. Some has argued that domestic legislation is non-existent in many states and that the home state of such firms is not able to exercise effective control and
oversight over their contractors (Patel 2013, 201). This notion is, however, incorrect and there are examples of states that have imposed national legislation.
The United Kingdom (UK) and United States (US) shares a strong connection in military fields such as intelligence sharing and nuclear cooperation. The two states also have firm military cooperation where the UK has been one of the US' most important allies in military campaigns since the end of the second world war (Xu 2016, 1212–13, 1216, 1222–24). Both states have also enacted legislation to ensure safe and accountable deployment of military contractors. Given the close cooperation in military and security affairs; one would expect that both countries have similar domestic law on the topic of PMSCs. The legislative approaches of Britain and the US do, however, differ significantly even though they both aim to guarantee professionalism of their sub-contractors. In the case of the UK, the legislation forces PMSCs to comply with industry guidelines and firms are supposed to self-regulate, e.g. in the form of "competency requirements" for its personnel (A. White 2015, 434). Contrary, the US has imposed a stricter regulatory framework that oversees the work of firms and gives the hiree the right to discharge contractors or individual members of staff (Risen 2014). This poses an interesting question: Why has the UK and US chosen different approaches in national legislation to impose a legal framework on the usage of private military and security contractors? This thesis will research the domestic legislation of both the UK and US to better understand how it differs between the two and what factors can explain the difference. I argue that the legislations differ because of the rationality behind the policymakers, as can be seen in the economic rationality that was much more important as to why the UK chose the approach of self-regulation. There has, to the best of my knowledge; not been published a comparative case study that aims to explain why the two states have chosen different legislative approaches. Yet,
the question of legislation is essential and before it is possible to evaluate a specific type of regulation, we need to know why they were enacted.
The UN argues that the best method to limit potential wrongdoings by PMSCs would be an “internationally legally binding instrument” (Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples Right to Self-Determination 2018, 17). This work has been ongoing since 2010 and still has not resulted in any comprehensive international convention (United Nations Human Rights Council 2018, 3). Consequently, domestic legislation is the best option available for individual states that want to enforce a regulatory framework on military contractors. Precise regulation that is also appropriately enforced has the potential to limit the harmful damages that some firms have had on civilians.
In the following section, I will focus on what we currently know of domestic legislation on PMSCs. This will be followed by an overview of rational choice institutionalism, the theoretical framework that explains how policy-makers influence legislation using their rationality for a number for factors. Section 4 will discuss the methodology of the study, followed by the analysis of why the UK and US chose different approaches in their legislation. The last section will conclude the findings and discuss what this mean for the future.
2. Literature review
In this section, I will briefly summarise what earlier research on the topic of domestic legislation of PMSCs has concluded. I find that academic research has not yet provided an adequate answer as to why states chose different approaches to their domestic legislation and reveal a gap in the existing literature.
One early article about modern PMSCs was published by Foreign Policy in 1998 and called for future research on several topics concerning PMSCs, e.g. to what extent their usage could be regulated at all (Shearer 1998). This article encouraged scholars to shed light on the newly discovered topic of modern PMSCs and the literature has since then grown significantly. The research on PMSCs can be divided into three significant strands of literature from the late 1990s and onwards. The first of these strands of academic research tended to focus mainly on the commercialisation of security in states such as Sierra Leone, Angola and Papua New Guinea. Many articles categorised as part of this first stand of research were often descriptive and discussed the emergence of modern private forces in battle zones and saw that both states, as well as international organisations, relied on private firms for security rather than the institutions set up by countries (van Meegdenburg 2015, 325; Singer, 2001, 189). The second strand of PMSC research has focused on factors that explained the reasons for security outsourcing. Van Meegdenburg has identified that approximately 30 per cent of the studies in this second strand of literature points out Western reluctance for intervening in conflict zones as an explanation to the rise of PMSCs (2015, 327-28). In brief, military contractors facilitate governments to participate in international missions without using their regular armed forces, thus avoiding public criticism if the mission fails.
The third and last strand of academic interest on the topic of PMSCs has primarily dealt with questions regarding the control and regulation of military contractors. It has been argued that private sub-contractors work in an environment with little supervision and accountability, unlike regular military units who are regulated by an extensive international framework. The lack of regulation increases the risk of de facto impunity for PMSC personnel and that it is hard to convict PMSC personnel under current international legislation, e.g. the Geneva Convention (Lehnardt
2008, 1016). One reason for this is that legislative processes have been unable to respond to the growth of the PMSC industry but has instead tried to regulate the industry as it happened (Percy 2013, 944). Legislative processes take considerable time to complete, and this has allowed the industry to reshape their practices and rendered the legislation outdated as soon as it was enacted. The issues with the domestic legislation of military contractors are, however, not limited to only the home state of PMSCs. It is essential also to consider the implications of legislation in the host states.
Domestic law would have to be extraterritorial for it to be also applied in host states for governments to oversee and sanction the activities in a different country. The task to exercise oversight in an area outside of the home state is resource-demanding and requires both human resources and efficient institutions (Percy 2006, 37). This was found to have been a contributing factor that allowed the abuse of prisoners in Iraq’s Abu Ghraib prison to take place (Schooner 2005, 569). Further, the lack of an effective rule of law in some host states makes the process of finding evidence and prosecuting a military contractor for wrongdoing a complicated task. It is possible to see that the implementation and enforcement of domestic legislation that involves PMSCs are complex for both the home and the host state of such firms. As can be seen, it is not self-evident that domestic legislation is the best option to impose restrictions on these firms.
A different option to ensure the professionalism from military contractors could be to let the firms set up a self-regulation scheme. This would also be in the interest of the individual firms since they are, as previously stated, supposed to work in such a way that the firms' shareholders receive an economic dividend. The problem with proper oversight and accountability would, however, not be fixed with an industry-wide agreement of ethical behaviour and states would still not have the option to exercise control of the firms. Furthermore, self-regulation would have the
same pitfalls as the current international agreements since firms would be able to avoid prosecution or liability because of the difficulty of accurately defining the relationship between a military contractor and the regular armed forces of the state that hires them (Kinsey 2005, 283).
This literature review has described how the three major strands of PMSC research emerged and how they differ from each other. For this thesis, the third category is most applicable since it deals with the question of regulation and accountability of military contractors. As the option of an international treaty against private contractors has yet to emerge, domestic legislation is still the best option for governments that seek to monitor firms and their actions. This is not done without difficulty. However, the current literature has not dealt with the question of why states choose one approach over another and this work fill a gap in the scholarly research by providing a comparative case study on this topic. The following section will introduce the framework that will help to answer why these discrepancies in the domestic legislation have occurred and why states might prefer different options for their domestic legislation.
3. Theoretical framework
This thesis will answer the question of why the UK and US chose different approaches in their national legislation to impose a legal framework on the usage of PMSCs. The theory used to answer this question; Rational Choice Institutionalism presupposes that lawmakers will enact legislation that is the most rational for the lawmakers' goals. In the case of economics, if the policymakers consider it as more rational to protect domestic jobs, the legislation will be adjusted to account for this. Contrary, if it is more logical to punish firms for their economic handling, the law will attempt to limit this from happening in the future.
As the name implies, Rational Choice Institutionalism (RCI) aims to explain individual and social outcome “in terms of individual goal-seeking under constraints” (Snidal 2013, 87). The constraints to individual or social outcome can be of legislative, institutional or technological factors (Snidal, 2013, 87). The theory presupposes that actors, e.g. lawmakers, will reach an outcome (legislation) that seems most rational to the actor. Rationality can, in the case of a democratically elected lawmaker, be described as favouring bills that can maintain or increase the popularity for the lawmaker without alienating too many potential voters. Thus, lawmakers are likely to endorse legislation that can help them pursue their political goals, often re-election or political survival (Checkel 1997, 477). Moreover, the theory puts heavy emphasis on the concept of institutions, and it is therefore worth further defining this term. The discussion on what constitutes an institution and the details of the different schools of thought is a contested topic that is outside the scope of this thesis. Described broadly, one example of an institution is state bureaucracies. Consequently, RCI can help to outline politics and specifically the policy and decision making in a state (Checkel 1997, 478). From a more theoretical perspective domestic legislation can be understood to be an institution. The reason for this is that the politics that create legislation are "observer relative phenomena", human-made; and can be subject to interpretation. Domestic legislation, as formulated by people, creates constraints and limitations on how the citizens live and organise their lives, consequently concluding that also legislation in itself can be considered as an institution (Searle 2005, 3; Sanders 2008, 43).
However, legislation does not necessarily connect directly with the framework of RCI. It has been argued that RCI tends to see actors as disconnected from social structures in a society and that the individual preferences of, e.g. lawmakers is not given significant attention (Katznelson and Weingast 2005, 6). The reason to believe that the argument that RCI disregards individual
preferences is flawed regarding the study of PMSCs. As noted earlier, the UK and US demand for PMSCs derived from a variety of factors, among them political. As Kruck has argued, the end of the Cold War, with its decreased importance for larger military units to technological highly advanced weapons systems; in combination with budget constraints led to hiring private enterprises to fulfil the security goals of the state (2014, 115-116). The decision to cut defence budgets was a decision made by lawmakers, based on a notion that it was more rational to allocate resources to other parts of the budget than the defence sector. This implies that lawmakers are not detached from the social structures of society and that RCI is indeed a suitable framework to study the topic of PMSCs. The reason for this is that the rationality of lawmakers can be a variable not only in understanding the demand for contractors, but also imposing regulation on them. Since members of parliaments and congress’ are often wanting to get re-elected for another term in office, they are likely to negotiate their position on a particular political question concerning public opinion to safeguard their political survival (Downs 1957, 53). This could be a contributing factor as to why domestic legislation differs between two states.
Similarly, various political factors are a variable that can influence the rationality of the lawmaker to push for a specific type of legislation. In order to operationalise political rationality for this thesis, the occurrence of media scandals likely influence how domestic PMSC law is understood by the policymakers. If a media scandal has occurred, the results of it can be interpreted by officials to alter their preference for or against a legislation. If an incident involving a military contractor receives high media attention, the lawmaker will be forced to comment on the event publicly, often calling for some official action to be taken. Since media scandals can be understood to change the rationality of a policymaker, it intertwines with the RCI framework.
Media scandals can be understood as political events and have traditionally been researched from a historical, ad hoc, perspective. Nyhan, however, focuses on news coverage of an alleged scandal to better understand why some scandals generate more debate on a particular topic. The recognition from media is a good indicator of what constitutes a crisis since the media reporting will portray whether the elites in a state consider a specific event a “scandal” or not (Nyhan 2015, 437).
Two main variables have been found that influence the occurrence of media scandals. Firstly, approval ratings for a public official or policy. When the public generally has positive feelings toward a policy, it is less likely that a media scandal will occur. When a specific policy or public official is unpopular, conversely, they are at a higher risk of suffering from a media scandal (Nyhan 2017, 226, 229). Secondly, media congestion plays a role since reporting on a topic requires resources to gather information and publish it. When reporting is congested, and focus on a different story than a policy or lawmaker, it is less likely that a media scandal will occur since the other issue will receive more coverage (Nyhan 2017, 226, 233). Consequently, it is necessary to research media scandals from these two variables to establish whether a media scandal has occurred or not.
4. Methodology
The literature review and theoretical framework provide the tools needed to analyse the research question successfully. The academic community has not studied the research question and it requires some insight into why the UK and US are used as case studies.
Case selection
This work will build on the most different system design to compare two cases where the domestic legislation greatly differs. As outlined in the introduction, the UK and US are close military allies and share active cooperation in various fields relating to military and defence policy. Further, they are both typical cases of home states for military contractors since they are the base of many firms, as well as situated in the global north. They also say something qualitative about the industry since many of the most influential PMSCs are based in these countries (United Kingdom Foreign and Commonwealth Office 2002b, 12). There are, however, other examples of states that have imposed domestic legislation on military contractors, e.g. South Africa (Liu 2010, 52). This case does not provide any new insights on the contemporary security industry, however, since the importance of South African contractor personnel has declined since the mid-1990s before their legislation was adopted (Kinsey 2005, 290). This means that the small-N study is limited to cases such as western democracies that hire military contractors to complement their regular armed forces in military campaigns.
Secondly, an additional, pragmatic factor as to why the UK and US were chosen for this thesis is that it allows me to access the primary sources needed for the analysis without relying on intermediary translators because on language skills. Moreover, the PMSC industry often works in secrecy, and the data that are necessary for the analysis are more likely to be publicly available from western democracies as compared to more authoritarian or less-transparent states.
Method of analysis
To analyse and answer the research question, I trace the rationality of policymakers using government documents to understand why the legislation was formulated differently in the two
cases. The analysis will outline the arguments of the legislative process as laid forward by lawmakers and officials chronologically and follow whether they changed. Given the reasoning of RCI, a lawmaker will change her position of a particular topic if the alternative seems more rational. The process tracing, however, is only be able to show the government's arguments for why specific legislation was enacted. To avoid this, the thesis will also try the alternative hypothesis of whether a media scandal occurred or not and if so, how it changed the legislative process. The main variables of this has been outlined in the theoretical framework. However, in order to determine media contagion we need an external factor that is independent of the conflict. The external factor that is used in the original article is the occurrence and effects of a natural disaster (Nyhan 2017, 226). I will use the same variable since the occurrence of natural disaster should distract news consumers to instead focus on this event rather than a political or economic scandal.
Data selection
The analysis will use government sources such as hearings, evaluations and legislative texts that are publicly available to trace the rationality of the policymakers. In addition to these, media articles from the time of the potential scandals by specific PMSCs will also be analysed. By using the Dow Jones Factiva database that collect a large number of sources, it will be possible to find news articles, TV and radio broadcasts on a specific topic. In order to limit the number of articles that are being analysed I will only look for articles that were published within the first year of the incident. My reason for this is that the occurrence of a media scandal should have a major impact in the press within a reasonable amount of time. Further, the measure of one year allow more information to be reported by the media rather than only the initial, often little amount of details that gets to the press. One benefit of using the Factiva database is that it does not only contain
news media that were published on the internet exclusively. This is an important factor given the years when the legislative processes took place. In the case of the UK, this process took place in the late-1990s and early-2000s when the usage of internet was not as widespread among the general public. One example of this is that 26,8 per cent of the population had used the internet during the past three months in the year 2000 as compared to 95 per cent in 2018 (International Telecommunication Union 2019).
5. Analysis
This section is dedicated to the study of the question as to why policymakers in the UK and US have chosen different paths in their domestic legislation regarding PMSCs. As outlined in the theoretical framework, Rational Choice Institutionalism suggest that formulating domestic law is made on rational grounds. Consequently, the causes for rationality should be seen in official, primary sources. Before doing so, however, it is worth spending some time on outlining the history that has led up to the contemporary legislation. Domestic legislation to regulate PMSCs is not something new in either of the states. Instead, there have been earlier historic legislation that has also helped to lead up to the more contemporary varieties.
PMSC legislation in Britain
Britain was the last of the European powers that stopped complementing their regular armed forces with traditional “mercenaries” and used them up until the Crimean War 1853-1856. In this specific case, the mercenaries arrived too late and were therefore never actually deployed on the battlefield (United Kingdom Foreign and Commonwealth Office 2002a, 20). The next effort
outlawed British nationals to seek employment in armies that were not British and made it illegal for Britain to hire foreign nationals for its wars (United Kingdom Foreign and Commonwealth Office 2002a, 20). This law still exists today but is outdated since it assumes that both parties in a war are recognised as sovereign states.
In more contemporary times, it would take until 2011 before the UK had put a regulatory scheme for military contractors in place. This consisted of a special industry union, the Security in Complex Environments Group (SCEG) that would formulate a ethical conduct code for the industry to which all its members had to abide by (N. White 2016, 585). A consultation report listed four risks that British armed forces could face in the battlefield if the domestic PMSCs would not be regulated (United Kingdom Foreign and Commonwealth Office 2002a, 21)
1. PMSC or their personnel risked interfering with British foreign policy goals.
2. British armed forces risked being confronted with their secret operation methods if they were fighting against insurgents trained by domestic firms.
3. Military contractors would reflect British reputation negatively. 4. An operation by a domestic firm could risk British lives.
Considering these risks, it would appear that Britain had to quickly resolve the issue of domestic firms and impose a legal framework that would control such companies. Notwithstanding, it would take almost a decade before a regulatory system was created. Yet the idea of an official industry union comes with some problems since it is supposed to regulate their own members. One such concern is that it is unclear whether a state legally can waive their obligation to prevent harm caused to individuals from within its own borders (Davitti 2016, 65). Another is that the worst sanction a firm can get is the exclusion of the SCEG but without any legal actions being taken. This does not stop a military contractor from repeating their offences as has been the case of some
firms historically. Although some shortcomings in the self-regulatory scheme exists, it appears that it generally fulfilling its role of imposing regulation on the industry (N. White 2016, 591, 594). This method of ensuring compliance with good practices is not unique to the industry of military contractors but had previously been tested in the UK successfully.
The Private Security Industry Act of 2001 (PSIA) forces civilian security firms to be licensed by the Security Industry Authority, which accounts to the British Home Office, and ensure that personnel hired by its members to have passed a security vetting and undergoes training (A. White 2015, 434).
Conclusively, it is possible to see that Britain has taken some steps to regulate their market for PMSCs and that it relies more upon self-regulation of the individual firms rather than imposing a strict legal framework on the activities of military contractors. It is then interesting to look at the US which has taken a more forceful response to the same question of regulating PMSCs.
PMSC legislation in the US
The US has enforced a more robust legislative framework than Britain, which can be seen by comparing the different laws that apply to PMSCs. One example of this is that the US armed forces have accountability for individual staff that follow the armed forces to other countries under the Military Extraterritorial Jurisdiction Act of 2000. However, this law only applies to staff that are hired by the Department of Defence (DoD) and not, e.g. armed protection guards that are contracted by the State Department (Kinsey 2005, 287). Historically, personnel not part of the regular armed forces were subjected to “specialised military criminal code” and exclusive military lawyers has served alongside contractors since the late 18th century. However, there have been periods where the military has had no judicial power over its accompanying civilians as a result of
unclear legal ground (Corn 2012, 167–68). Nonetheless, this indicates that the usage of civilian support has been relevant from an early point in US military history and is a difference compared to Britain where this has not been as prominent. This might be a contributing factor to explain why the US domestic legislation regarding PMSC in somewhat more extensive than its British counterpart.
The most crucial part of contemporary US domestic legislation regarding PMSCs is the National Defence Authorization Act for Fiscal Year 2008 (FY2008) that sought to implement regulations for the usage of military contractors on the battlefield. The law set up a system to register and keep records of personnel employed by PMSCs that was active in combat areas. Another critical aspect of the legislation was that the DoD would log and monitor the weapons that were carried by or available to the hired personnel (United States Congress 2008, 252). It is possible that the oversight of firearms was put in the law after State Department investigators in 2007 had found that personnel of a specific US PMSC, Blackwater; had failed to qualify for their weapons or carried arms that they did not have adequate training for (Risen 2014). Finally, FY2008 gives the DoD the right to discharge a contracted soldier or terminate a contract that has violated other parts of US law (United States Congress 2008, 257). Thus, FY2008 imposes a more rigid regulatory framework for limiting the risk of failures when the DoD hires military contractors. This makes it stand out compared to the British domestic law which focuses more on self-regulation among the PMSCs.
Understanding the economic rationality behind UK legislation
As covered earlier in this section, the UK did not have any laws that were explicitly enacted to control PMSCs. There is no no specific bill, aside from insufficient international agreements
and the SCEG scheme. This does not mean, however, that it is impossible to find the political rationality behind this decision. Instead, this can be found in primary sources such as the Green Paper as well as in the processes that led up to PSIA being enacted.
One of the most important arguments that brought up early in the considerations for a UK PMSC regulation was that a complete ban of military activity abroad would have a negative impact on British defence exporters, which military contractors are a part of (United Kingdom Foreign and Commonwealth Office 2002a, 23). Furthermore, the report argued that it would be hard to enforce such a legislation since the potential crimes were most likely to be committed abroad where it would be hard to find enough evidence of wrongdoing The early paper concluded that a strict legislation of some form of regulation of military contractors could be beneficial since it would establish "a respectable and therefore more employable industry" (United Kingdom Foreign and Commonwealth Office 2002a, 21). However, the enactment of some sort of policy would be expensive, both for the government to enforce and for firms to abide by. The document mentioned that British firm could relocate to a different jurisdiction if strict legislation was adopted, thereby threatening both British jobs and tax revenue (United Kingdom Foreign and Commonwealth Office 2002a, 23). The paper finally requested responses from both the members of parliament, firms with an interest in stake and the general public before they would release a full report with recommendations for legislation (United Kingdom Foreign and Commonwealth Office 2002a, 21,27).
Later the same year, the full report was released by the committee. They reiterated their view that a complete ban of all military activity abroad would be "counterproductive" since the UK would have no possibility to provide oversight of military contractors. The lack of control could "embarrass the British Government" by allowing combat operations and "then discover
through the media or other sources that human rights abuses had taken place" and the committee recommended that direct combat would be forbidden and arms should only be carried for self-defence and training purposes (United Kingdom Foreign and Commonwealth Office 2002b, 29– 31). Furthermore, the report argued that military contractors were an essential tool to avoid economic overstretch the regular armed forces. PMSCs were understood to be a cheaper alternative to soldiers and that they were more suitable for prolonged "nation-building operations" and that contractors could instead deliver protective services as this was at the time done by soldiers. These tasks could be performed by contractors, although they would be unauthorised to take part in direct combat situations (United Kingdom Foreign and Commonwealth Office 2002b, 27-29). Both the first paper and the final report thus concluded that a stricter ban of all military could pose great threats against the British economy. Both from the perspectives of the potential loss of jobs and tax revenue but the report also portrayed an opportunity to economically benefit from contractors. Instead, the paper would suggest the more lenient approach of self-regulation that would eventually be adopted.
Understanding the economic rationality behind US legislation
The economic argument was also brought up in the legislative process of why the US. Contrary to the British case of saving domestic firms and the economic benefits of using military contractors, American lawmakers argued that legislation was needed to save money.
The campaigns in Afghanistan and Iraq was the first time the US relied “heavily” on the accessibility of contractors to supply military and security services. In January 2009, the US General Raymond Odierno stated that “employment of Iraqis [as security contractors] not only saves money [for the US government] but also strengthens the Iraqi economy (…)” (Schwartz
2011, 13). There have, however, been several examples of how the hiring of PMSC has had a negative economic impact.
About 20 per cent of the total US spending for the war in Iraq was found to have gone to PMSCs in Iraq and between 2003-2007 a total of 85 billion USD had gone to private contracts (Risen 2008). In a hearing with Blackwater CEO Eric Prince, several lawmakers pointed out that that the spending on Blackwater alone had been significant. By the mid-2007 the firm had received a total of 1 billion USD in government contracts that often had often been awarded without "full and open" competition (Committee on Oversight and Government Reform 2007, 2). Awarding contracts without open competition is problematic since it is impossible for lawmakers to accurately assess and compare the price that is asked by the firm. Some of the committee's members brought up that hiring an individual contractor on average costed six times the amount of what a corresponding regular soldier would have. Further, Representative John Duncan noted that the top commander of the US forces in Iraq earned half the yearly salary as senior manager from Blackwater did. Finally, Representative Lacy Clay stated that it was "troubling" that American tax money had gone to a firm that had been involved in severe incidents where civilians had been injured and killed.
The hearing did not place as much emphasis on economic factors or whether the money spent had been beneficial for the US campaign in Iraq. One reason for this could be that an official evaluation commission would uncover widespread misuse, fraud and waste of American money to contractors several years after FY2008 had been enacted.
The Commission on Wartime Contracting in Afghanistan and Iraq, an independent and bipartisan expert panel set up by the US Congress, estimated that between 31 to 60 billion USD had been lost due to fraud and waste by contractors in Afghanistan and Iraq, an estimate that was
considered “sobering, but conservative” (Commission on Wartime Contracting in Iraq and Afghanistan 2011, 1). If the actual waste of this money were in the mid-range between 31 and 60 billion USD, approximately 12 million USD were lost every single day between 2001 and 2011 because of waste or fraud (Commission on Wartime Contracting in Iraq and Afghanistan 2011, 31).
The first half of this analysis has dealt with the variable of economic rationality as to why the UK and US adopted their different strands of legislation concerning PMSCs. The British model based on a more lenient regulatory framework was implemented because it was considered more economically sound for both the firms based in the UK as well as the government. It is harder to determine what effect economic rationality had on US domestic legislation.
The “arms to Africa” media scandal in the UK
In March 1998, it was revealed that the ousted civilian government of President Kabbah in Sierra Leone had hired the London based military contractor Sandline International to retake power. To do so, Sandline had shipped 35 ton of firearms to the state in exchange for diamond mining concessions. The shipment was a breach of both a UN arms embargo imposed on Sierra Leone and UK legislation regarding arms export. Sandline defended their delivery and claimed that they had received a "green light" from both the British and US governments, something that was denied by both Prime Minister Blair and Foreign Minister Cook (BBC News 1998b; 1998a). This event is hard to measure since they are no approval ratings that can be used to see whether it was opposition on the matter or not, the first requirement for a media scandal to occur. However, Sandline claimed they had received affirmative from both the British and US government. This was denied by both Prime Minister Tony Blair and Foreign Secretary Robin Cook (BBC News 1998b; 1998a). This
can be interpreted as an opposition between the government and the firm itself that could potentially trigger media attention on the affair.
When further looking at the news reporting from the first of March 1998 to the first of March 1999, Factiva produces 618 individual articles that mention “Sandline International” and “Sierra Leone” in the same news report. 254 of these articles also include the phrase “arms to Africa”, the nickname media gave to the incident. Furthermore, 478 individual articles were written that used both the keywords "Sierra Leone" and "arms-to-Africa". This shows that the arms shipment by Sandline attracted media attention. Were there, however, any significant media contagion that could have taken away interest in the incident? In regard to natural disasters, the most severe risk that threatened Sierra Leone in 1998 was estimated to be floodings (World Health Organisation 1998, 15). The same time period of time only gives two news notices that mention flooding that occurred in north-western Sierra Leone (Agence France Presse 1998; Xinhua News Agency 1998). Conclusively, the Sandline International arms shipment can rightfully be considered a media scandal since it contains all of the criteria’s set up by Nyhan. There was opposition between what account of incident was correct; the episode resulted in a significant number of articles and the story had little media congestion that could compete for journalistic resources with the "arms-to-Africa" affair.
The question is then whether the rationality changed among some of UK's lawmakers after the shipment to Sierra Leone had been uncovered. The House of Commons ordered an independent inquiry to answer the question of what British lawmakers had agreed to and what was known of the arms shipment. The report found that no minister or other official had approved Sandline's delivery to Sierra Leone. However, some public servants had noticed the smuggling but did not provide ministers full insight to the case because of “human error, largely due to [work] overload”
(Legg and Ibbs 1998, 3). The report stated that there was one lesson to be learnt from the shipment in regard to government relations with PMSCs. Private subcontractors were a fact and would continue to seek contacts with authorities and, e.g. the Ministry of Defence, who was obliged to support them as they do with other British firms. However, such communications could have implications for UK's foreign relations and on public opinion. The report, therefore, recommended that the UK would develop a regulatory framework to deal with PMSCs (Legg and Ibbs 1998, 115–16). The Foreign Affairs Committee directly referenced the “arms to Africa” affair as a cause for its evaluation of policy options, partly because the incident was the first time that a British military contractor had attracted significant media attention (2002b, 5).
This section has analysed the first significant media scandal in the UK involving a British PMSC. The mistakes that had been committed by UK officials and recommendation to create a more transparent framework would a few years later lead to the first steps toward creating domestic legislation that would impose regulations for PMSCs to follow. The last section of this thesis' analysis will deal with a similar example from the US where the military subcontractor Blackwater was found to have shot civilians while deployed in Iraq.
The Blackwater media scandal in the US
On 16h September 2007, Blackwater personnel opened fire with several types of arms on Baghdad’s Nisour Square while escorting a diplomatic convoy, killing at least 17 civilians (Snukal and Gilbert 2015, 660–61). The Nisour Square shooting highlighted the high disapproval rates of the US involvement in Iraq. In May 2007, 61 per cent of Americans said that the US should not be in Iraq, as compared to 27 per cent in 2003 (Sussman 2007; Jacobson 2010, 2008). Similar to the “arms to Africa” incident, there were also opposing notions of what had happened during the event.
Iraqi authorities claimed early that the shooting was unprovoked and had been a "criminal operation". Blackwater, however, claimed that the response had been "self-defence" after an explosion close to one of the vehicles of the convoy (Partlow 2007). This shows that the first contributing factor to an upcoming media scandal was fulfilled. Not only was a majority of the Americans against the war campaign in Iraq, but as in the beforementioned incident in Sierra Leone, it was also opposing views of what had happened.
Factiva produces 5’962 articles that were written within the first year which incorporated the keywords “Iraq” and “Blackwater”. 469 of these articles mentions “Nisour Square” (or the American spelling, “Nisoor”) specifically. 102 of the pieces further calls the incident a "massacre". Finally, the keywords "Iraq", "Nisour Square" (or "Nissor Square") gives 499 articles that do not name that Blackwater was the specific firm involved in the incident.
When looking at the second variable to determine whether a media scandal occurred or not, media congestion; it is possible to see that it is more complicated in this case. The largest threats in terms of natural disasters to Iraq is drought, sandstorms, floodings and epidemics (Al-Shamsi 2019, 656). 2007-2008 marked some of the driest years in Iraq in four decades which caused food production to decline and sandstorms to be more frequent and severe in the region (Trigo, Gouveia, and Barriopedro 2010, 1245, 1250). This can have contributed to an increased number of articles about the natural disasters in Iraq and the media being more contagient. Between 16 September 2007 and 16 September 2008, a total of 301 individual articles can be found in Factiva that deals with natural disasters in Iraq. This is a higher number than those of floodings in Sierra Leone. However, the number of articles is significantly lower than the pieces that dealt with Blackwater in Iraq (5’962) or less than the articles about the Nisour Square incident (499 articles). Consequently, it is correct to call the shooting at Nisour Square by Blackwater a media scandal.
This was not the first incident where Blackwater personnel was found to have used physical force or their arms to achieve their missions. The members of the hearing with Eric Prince argued that incidents involving Blackwater had undermined the policy of the US by acting hostile towards Iraqi civilians (Committee on Oversight and Government Reform 2007, 81). One of the Committee’s members, Elijah Cummings, went as far as questioning whether Blackwater constituted a “shadow military mercenary of forces that [were not] accountable to the US government or to anyone else” (Committee on Oversight and Government Reform 2007, 1–3, 24). Furthermore, the hearing brought up the concern of lacking accountability of PMSCs when Prince stated that he did not “believe in the Iraqi system” and had enabled one of his staff to leave Iraq without responsibility after he the staff member after drunkenly shot and killed an Iraqi security guard (Committee on Oversight and Government Reform 2007, 57–60). The hearing provided an opportunity for US lawmakers to seriously questioning the usage of military contractors and the implications they had for military campaigns. Although Prince did not speak for other PMSCs hired in Iraq, he had to put Blackwater and its incidents in a broader context and argue that the industry had a role to complement regular armed forces. Nonetheless, the Nisour Square incident highlighted that a proper evaluation of PMSC was necessary and would lead to several improvements in the regulation of the industry (Elsea and Nakamura 2008, 34). This would eventually lead to the implementation of FY2008 which imposed stricter control and oversights of military subcontractors.
The second part of the analysis has tried to understand what effect the occurrence of media scandals had on the formulation of domestic legislations of PMSCs in the UK and US. In both of these cases, media scandals have likely influenced how private sub-contractors were seen by the lawmakers and had them shift in a position towards regulation in the wake after media attention.
The sixth and last section of this essay will conclude the findings of this thesis as well as discuss its limitations and possible tracks of future research.
6. Conclusion
PMSCs have since the end of the Cold War filled an essential role for various states and international organisations to provide security and military tasks when state-led, regular armed forces have been unable to complete their tasks. This development has not, however, been without pitfalls and some private contractors have been involved in incidents where civilians have been wounded or killed. The industry is not likely to disappear for several reasons, one of them being that some states depend on them to achieve their military and security goals. One of the most critical tools states have to prevent future contractors from committing similar crimes is domestic legislation to provide further oversight and control of such firms.
The UK and US share several similarities with one another in terms in regard to military cooperation, yet their legislation and history with military contractors differ. This posed the question why has the UK and US chosen different approaches in national legislation to impose a legal framework on the usage of private military and security contractors? This thesis has analysed this question from economic and political rationality. In the case of the UK, PMSCs are seen as important to the British economy and the lawmakers took the approach of a more lenient, self-regulatory framework to benefit from the positive economic alternative such firms pose to regular armed forces. Contrary, the US did not have as strong interpretation of military contractors and the negative impact of the firms would be understood after legislation already had been enacted. From the perspective of political rationality, the occurrence of media scandals can have an effect
of) a specific policy can have. The thesis analysed two incidents, the "arms to Africa” weapons shipment and Nisour Square shooting and found that both constitute a media scandal and that they had an impact on the political rationality where it forced lawmakers to start discuss what consequences the lack of legislation had in external states.
This work is, however, not without shortcomings. Firstly, it has only analysed two Western cases, whereas many PMSCs are active in states located in the global south. Furthermore, it is unclear what these cases can say about the broader topic of military contractors. These are valid questions, primarily since military contractors are not confined to a specific context of developed/less developed states or peace/conflict. Both the UK and US are however important bases for several global security contractors as well as buyers of their services. The cases are therefore good examples of how western democracies with outspoken support for human rights and the rule of law deal with actors that are found to have committed crimes in other states. Secondly, it can be questioned to what extent the variables of economic and political rationality are able to conclude why a specific strand of legislation is adopted. There are likely several different factors that play into what is perceived as the best and most feasible strand of enactment. The extent of this work is limited, and I have been forced to select only two potential variables because of constraints in time and space. Nevertheless, they approach the research question from two broad separate perspectives that aim to analyse the motives behind legislation; whether legislation is sound from an economic perspective and to what extent a policy is likely to fall out in goodwill among the general public.
Given the lack of an effective international agreement, domestic legislation is the best option available to impose oversight and control of a controversial industry. Yet, scholarly research has not, to the best of my knowledge, conducted a comparative analysis of two different
approaches in legislation. This thesis has deliberately refrained from valuing what should be considered as “good” or “bad” policy or even what constitutes "successful" legislation in regard to military contractors. Aside from its scholarly contribution, I hope that this work can be a bridge between academia and policymaking to explore further the question of what of these approaches, if any, is the best option. Before determining what a practical approach to regulation of the PMSC industry can look like, however, we need to understand better why states choose a specific strategy in their domestic legislation before the findings hopefully can be transferred into international law. This thesis leaves many questions unanswered. What role does military culture or tradition play into how domestic legislation is formulated? To what extent are the findings in this work transferable to other cases, e.g. authoritarian systems or states in the global south? Which approach in legislation is most effective in preventing crimes committed by a military contractor? These will hopefully be answered by scholarly research in the future.
Bibliography1
Agence France Presse. 1998. ‘Flooding in Northwestern Sierra Leone’. Dow Jones Factiva Database, 21 August 1998.
https://global-factiva-com.ezproxy.leidenuniv.nl:2443/redir/default.aspx?P=sa&an=afpr000020010914du8l03o yn&cat=a&ep=ASE.
Al-Shamsi, Mustafa. 2019. ‘Disaster Risk Reduction in Iraq’. Journal of Disaster Risk Studies 11 (1): 656–58.
Annan, Kofi. 1998. Secretary General Reflects on ‘Intervention’ in Thirty-Fifth Annual Ditchley Foundation Lecture. Ditchley Foundation, UK.
https://www.un.org/press/en/1998/19980626.sgsm6613.html.
BBC News. 1998a. ‘Q & A: Arms-to-Africa Scandal’. BBC News, 10 May 1998. http://news.bbc.co.uk/2/hi/uk_news/90526.stm.
———. 1998b. ‘Spicer Calls Sierra Leone Affair “Ethical”’. BBC News, 5 November 1998. http://news.bbc.co.uk/2/hi/special_report/1998/05/98/arms_to_africa_row/207586.stm. Brooks, Doug. 2000. ‘Write a Cheque, End a War: Using Private Military Companies to End
African Conflicts’. Conflict Trends 1: 33–35.
Checkel, Jeffrey. 1997. ‘International Norms and Domestic Politics: Bridging the Rationalist-Constructivist Divide’. European Journal of International Relations 3 (4): 473–95. Commission on Wartime Contracting in Iraq and Afghanistan. 2011. ‘Transforming Wartime
Contracting: Controlling Costs, Reducing Risks’. National Archives and Records Administration. Archived from the original
https://cybercemetery.unt.edu/archive/cwc/20110929213820/http://www.wartimecontract ing.gov/docs/CWC_FinalReport-lowres.pdf.
Committee on Oversight and Government Reform. 2007. ‘Hearing Before the Committee on Oversight and Government Reform’. Homeland Security Digital Library.
https://www.hsdl.org/?view&did=35293.
Corn, Geoffrey. 2012. ‘Contractors and the Law’. In Contractors and War: The Transformation of United States’ Expeditionary Operations, by Malcolm Patterson and Christopher Kinsey, 157–83. Stanford: Stanford University Press.
Davitti, Daria. 2016. ‘Refining the Protect, Respect and Remedy Framework for Business and Human Rights and Its Guiding Principles’. Human Rights Law Review 16 (1): 55–75. Deitelhoff, Nicole, and Anna Geis. 2009. ‘Securing the State, Undermining Democracy:
Internationalization and Privatization of Western Militaries’. In Transformations of the State 597, 1–31. TransState Working Papers 92.
Downs, Anthony. 1957. An Economic Theory of Democracy. 1st ed. New York: Harper and Row Publishing.
Elsea, Jennifer, and Kennon Nakamura. 2008. ‘Private Security Contractors in Iraq: Background, Legal Status and Other Issues’. Congressional Research Service.
https://crsreports.congress.gov/product/pdf/download/RL/RL32419/RL32419.pdf/. International Telecommunication Union. 2019. ‘Individuals Using the Internet (& of
Population). United Kingdom’. World Bank Data.
https://data.worldbank.org/indicator/IT.NET.USER.ZS?locations=GB.
Jacobson, Gary. 2010. ‘George W. Bush, the Iraq War, and the Election of Barack Obama’. Presidential Studies Quarterly 40 (2): 207–24.
Katznelson, Ira, and Barry Weingast. 2005. ‘Intersections Between Historical and Rational Choice Institutionalism’. In Preferences and Situations: Points of Intersection Between Historical and Rational Choice Institutionalism, edited by Ira Katznelson and Barry Weingast, 1–24. New York: Russel Sage Foundation.
Kinsey, Christopher. 2005. ‘Challenging International Law: A Dilemma of Private Security Companies’. Conflict, Security & Development 5 (3): 269–93.
Legg, Thomas, and Robin Ibbs. 1998. ‘Report of the Sierra Leone Arms Investigation’. Stationery Office.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/235405/1016.pdf.
Lehnardt, Chia. 2008. ‘Individual Liability of Private Military Personnel under International Criminal Law’. European Journal of International Law 19 (5): 1015–34.
Liu, Hinyan. 2010. ‘Leashing the Corporate Dogs of War: The Legal Implications of the Modern Private Military Company’. Journal of Conflict and Security Law 15 (1): 141–68.
Nyhan, Brendan. 2015. ‘Scandal Potential: How Political Context and News Congestion Affect the President’s Vulnerability to Media Scandals’. British Journal of Political Science 45 (2): 435–66.
———. 2017. ‘Media Scandals Are Political Events: How Contextual Factors Affect Public Controversies over Alleged Misconduct by U.S. Governors’. Political Research Quarterly 70 (1): 223–36.
Partlow, Joshua. 2007. ‘State Dept. Convoy Attacked in Baghdad, Sparking a Shootout’. Washington Post, 17 September 2007. h
ttps://www.washingtonpost.com/wp-dyn/content/article/2007/09/16/AR2007091601062.html.
Patel, Faiza. 2013. ‘Regulating Private Military and Security Companies: A Comprehensive Solution’. Proceedings of the ASIL Annual Meeting 107: 201–3.
Percy, Sarah. 2006. ‘Regulating the Private Security Industry’. Adelphi Papers 384: 7–76. ———. 2013. ‘Regulating the Private Security Industry: A Story of Regulating the Last War’.
International Review of the Red Cross 94 (887): 941–60.
Risen, James. 2008. ‘Use of Iraq Contractors Costs Billions, Report Says’. The New York Times, 11 August 2008.
https://www.nytimes.com/2008/08/12/washington/12contractors.html
———. 2014. ‘Before Shooting in Iraq, a Warning on Blackwater’. The New York Times, 29 June 2014. h
https://www.nytimes.com/2014/06/30/us/before-shooting-in-iraq-warning-on-blackwater.html
Sanders, Elizabeth. 2008. ‘Historical Institutionalism’. In Oxford Handbook of Political Institutions, edited by Sarah Binder, Roderick Rhodes, and Bert Rockman, 39–55. Oxford: Oxford University Press.
Schooner, Steven. 2005. ‘Contractor Atrocities at Abu Ghraib: Compromised Accountability in a Streamlined, Outsourced Government’. Stanford Law and Policy Review 16 (2): 549–72. Schwartz, Moshe. 2011. ‘The Department of Defence’s Use of Private Security Contractors in
Afghanistan and Iraq: Background, Analysis, and Options for Congress’. Congressional Research Service.
Searle, John. 2005. ‘What Is an Institution?’ Journal of Institutional Economics 1 (1): 1–22. Shearer, David. 1998. ‘Outsourcing War: Why Mercenaries Are a Fact of Warfare’. Foreign
Policy, 15 September 1998.
https://foreignpolicy.com/1998/09/15/outsourcing-war/.
Snidal, Duncan. 2013. ‘Rational Choice and International Relations’. In Handbook of
International Relations, edited by Walter Carlsnaes, Thomas Risse-Kappen, and Beth Simmons, 2nd ed., 85–111. Los Angeles: SAGE.
Snukal, Katia, and Emily Gilbert. 2015. ‘War, Law, Jurisdiction, and Juridical Othering: Private Military Security Contractors and the Nisour Square Massacre’. Environment and Planning D: Society and Space 33 (4): 660–75.
Sussman, Dalia. 2007. ‘Poll Shows View of Iraq War Is Most Negative Since Start’. The New York Times, May.
https://www.nytimes.com/2007/05/25/washington/25view.html?mtrref=en.wikipedia.org &assetType=REGIWALL.
Trigo, Ricard, Célia Gouveia, and David Barriopedro. 2010. ‘The Intense 2007-2009 Drought in the Fertile Crescent: Impacts and Associated Atmospheric Circulation’. Agricultural and Forest Meteorology 150 (9): 1245–57.
United Kingdom Foreign and Commonwealth Office. 2002a. ‘HC 577 Private Military Companies: Options for Regulation 2001-02’. Stationery Office.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/228598/0577.pdf.
———. 2002b. ‘Ninth Report of Session 2001-02: Private Military Companies’. UK Parliament. https://publications.parliament.uk/pa/cm200102/cmselect/cmfaff/cmfaff.htm.
United Nations Human Rights Council. 2018. ‘Resolution Adopted by the Human Rights Council on 27 September 2018 [A/HRC/RES/39/5]’. United Nations Office of the High Commissioner for Human Rights.
https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/39/5.
United Nations Meetings Coverage and Press Releases. 2018. ‘Mercenaries, Private Military Contractors Can Destabilize Rule of Law, Expert Tells Third Committee, amid Calls to End Racism, Respect Migrant Rights’. United Nations Press Office.
https://www.un.org/press/en/2018/gashc4246.doc.htm.
United States Congress. 2008. ‘H.R.4986 - National Defence Authorization Act for Fiscal Year 2008’. United States Congress.
https://www.congress.gov/bill/116th-congress/house-bill/4986?q=%7B%22search%22%3A%5B%22H.R.4986%22%5D%7D&s=1&r=1. White, Adam. 2015. ‘The Impact of the Private Security Industry Act 2001’. Security Journal 28
(4): 425–42.
White, Nigel. 2016. ‘Regulation of the Private Military and Security Sector: Is the UK Fulfilling Its Human Rights Duties?’ Human Rights Law Review 16 (3): 585–99.
Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples Right to Self-Determination. 2018. ‘Mercanarism and Private Military and Security Companies [HRC/NONE/2018/40]’. United Nations Office of the High Commissioner for Human Rights. h
https://www.ohchr.org/Documents/Issues/Mercenaries/WG/MercenarismandPrivateMilit arySecurityCompanies.pdf.
World Health Organisation. 1998. ‘Emergency Health Training Programme for Africa’. Panafrican Emergency Training Centre.
hhttps://www.gdnonline.org/sourcebook/chapt/doc_view.php?id=6&docid=498.
Xinhua News Agency. 1998. ‘Flood Destroy Homes, Farms in Sierra Leone’. Dow Jones Factiva Database, 21 August 1998.
https://global-factiva-com.ezproxy.leidenuniv.nl:2443/redir/default.aspx?P=sa&an=xnews00020010928du8l01 nz2&cat=a&ep=ASE.
Xu, Ruike. 2016. ‘Institutionalization, Path Dependence and the Persistence of the Anglo-American Special Relationship’. International Affairs 92 (5): 1207–28.
