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New forces need new rules

Opinion piece by Ms. Faiza Patel, UN Working Group on the use of mercenaries

25 September 2012

As the U.S. winds down its nine-year military presence in Iraq, the world risks forgetting a critical lesson. The widespread use of private military and security contractors without proper controls was one of the war’s costliest mistakes. Contractors are likely to remain a feature of both war and peace, diversifying into markets ranging from guarding ships in the Indian Ocean to spying in East Africa. Private companies guard diplomats from around the world, a trend that will likely only accelerate with incidents like the tragic killing of the U.S. Ambassador to Libya. We must strengthen our legal systems to account for these new forces.

Experience with security contractors in Iraq and Afghanistan has shown that their personnel often lack discipline and can commit violent crimes. But the international community lacks the tools and political will to control them or bring them to book when they abuse human rights.

Five years ago, security guards from Blackwater shot and killed 17 civilians in Baghdad’s Nisoor Square, setting off a wave of international condemnation. A criminal prosecution is pending in American courts, stymied by the government’s failure to collect evidence properly. Serious crimes by other contractors, including killings and sex trafficking, have simply not been pursued. The US Justice Department, for example, has declined to prosecute nearly 80 percent of contractor abuse cases referred to it.

Private actions have fared badly too. The U.S. Army concluded that contractors were involved in torturing prisoners at Iraq’s Abu Ghraib prison, but not one has been held responsible. Courts dismiss these civil suits because they wrongly liken contractors to soldiers in battle or the government asserts that litigation would compromise national security. An important avenue for victims to find justice may close if the U.S. Supreme Court finds (in an upcoming case involving Royal Dutch Petroleum and Shell) that corporations cannot be held liable for gross human rights violations abroad.

The impact of these cases extends far beyond the individuals concerned.

Last year, when I went to Iraq as an independent expert member of the United Nations Working Group on Mercenaries, government officials and ordinary citizens told me how contractors had mistreated civilians in ways both big and small and never held accountable. Their sense of injustice was palpable. A few months later, negotiations aimed at keeping U.S. troops in Iraq fell apart because the Iraqis – embittered by Nisoor Square and similar incidents – were unwilling to grant immunity to American troops. In Afghanistan, President Karzai has repeatedly tried to banish foreign security companies.
And of course, absent any civil or criminal sanctions, nothing prevents governments from awarding new contracts to companies accused of violating human rights. Even the promise of cost savings through privatization rings hollow. Estimates are that the American government lost between $31 and $60 billion through contractor waste and fraud in Iraq and Afghanistan.

There has been some notable reform. The past two National Defense Authorization Acts passed by the U.S. Congress contained tighter fiscal controls. Contractors supporting the U.S. Defense Department now fall under criminal jurisdiction. Switzerland is considering a new law on private military and security companies. South Africa has long had such a law.

Yet much more is required, and not just for security contractors working for the U.S., but those hired by other nations as well. These firms – many based in the U.S. or Western Europe – operate like any business. If the market dries up in Iraq or Afghanistan, they move to the U.A.E. or Sudan. Col. Gaddafi reportedly tried to engage a private company to smuggle him out of Libya. Tottering regimes may resort to contractors when the military is either unable or unwilling to suppress civilian unrest. Nations where these companies are based will suffer incalculable damage should contractors add to their record of human rights abuses in the volatile context of the Arab Spring.

Throughout history, the use of private military and security contractors has ebbed and flowed. For much of the modern era, their use was deemed unacceptable. But the U.S. revived contractors’ legitimacy during the Iraq war and the industry has grown exponentially. Today, the contractor issue is transnational, and requires a transnational solution. Companies easily change headquarters, names, and corporate forms. They recruit from around the world and operate around the world. No one country can regulate this business.

The United Nations Working Group on Mercenaries has developed a new treaty that would ban contractors from core military functions. All nations would be required to license and register contractors. Every country would have to establish jurisdiction over them and pledge to prosecute when they commit serious crimes. A modest international body would oversee these efforts. While by no means a panacea, this pact would increase oversight of military and security companies and put an end to their de facto impunity.

Multi-lateral treaties are not popular these days. Indeed, some countries that are home to military and security contractors oppose this reform. However, the stakes are too high to cling to ritual recalcitrance. It is time to seriously engage in the global effort to bring the rule of law to these new actors in the world’s conflicts.

Ms. Faiza Patel chairs the UN Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination.

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The Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination was established in 2005 by the then Commission on Human Rights. It is composed of five independent experts serving in their personal capacities: Ms. Faiza Patel (Chair-Rapporteur, Pakistan), Ms. Patricia Arias (Chile), Ms. Elzbieta Karska (Poland) and Mr. Anton Katz (South Africa) and Mr. Gabor Rona (United States/Hungary). Learn more, log on to: http://www.ohchr.org/EN/Issues/Mercenaries/WGMercenaries/Pages/WGMercenariesIndex.aspx

For more information and media requests please contact Ms. Kinga Déry (+41 22 917 9669 / kdery@ohchr.org) or write to wgmercenaries@ohchr.org

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