International and National Commercial Security

What are the problems associated with the increasing use of international and national commercial security companies and how can these problems be overcome?

Abstract

There has been an increasing use of national and international security companies, particularly in the wake of the occupation of Iraq. Although these security companies can often offer efficiency and expertise in areas that government military cannot, they also present certain difficulties, in terms of regulation and control. In particular, it is found in this research that there is a lack of accountability and a distinct lack of transparency.

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Much of this is due to the inherent nature of the activities which are being undertaken, but when many of the contracts are with the governments themselves and are maintained in secrecy, this makes it even harder to achieve any consistent degree of control and regulation.

It is recommended in this report that the focus needs to be on ensuring that international rules and regulations are put in place and then applied consistently, across international borders, without offering any commercial advantage to any one jurisdiction. Without international consensus, it is unlikely to be possible to offer the necessary level of consistency and transparency to deal with this growing industry.

Introduction

National and international security companies or private military companies (PMCs) have gained increasing attention, in recent years, the military companies of this nature often being central to the operation of the military sector, rather than being an organisation which is somewhat on the periphery of international politics. The industry itself is made up of hundreds of private companies operating internationally and often working alongside governments, as well as international institutions and global corporations. Depending on the precise company itself it may be targeted with providing a wide variety of services from direct combat operations to the provision of specific intelligence or strategic planning and consultation, as well as dealing with post-conflict reconstruction or providing security for specific events (Walker and Whyte, 2000).

PMCs have grown considerably since the occupation of Iraq, with British private military companies increasing in annual revenue from just ?320 million in 2003 to ?1.8 billion in 2004 (Priest and Flaherty, 2004). The rise of PMCs can largely be explained by the changing economic, political and social infrastructure that has been experienced across the globe, in the last few decades. Despite the recognition that these security companies provide services which may not be available in other circumstances and which will often be useful additions to military support, there are substantial difficulties which have emerged as a result of the use of these private companies. The purpose of this paper, therefore, is to explore the various different problems which may arise in relation to these national and international security companies, from a legal, political and social point of view, before then going on to look at the possible resolutions and future of these privatised companies.

History of the PMC

Before looking in detail at the problems which arise as a result of the use of national and international security companies, it is necessary at this point to gain an understanding of the history of the PMC and how it has reached its current state, as this background information will go a long way towards explaining how these problems have emerged in the first place.

When looking specifically at the position in Iraq private security companies actually have the second largest presence after the US military; showing just how important these private companies have become. However, the precise number of active security personnel in Iraq is not known, due to the nature of the industry, although estimates suggest that there are at least 20,000 active private military and security company personnel working on a regular basis in the region (Myers, 2005).

Although the private military companies have come to the forefront during the recent occupation of Iraq, the actual concept of private security is not new. Historically, these types of private security companies have long been involved in conflict, in many cases working alongside the legitimate regimes or being involved in human rights’ abuses. One of the better recognised historic uses of these private companies is the attempted coup in the Congo, during the early 1960s (Walker and Whyte, 2000). Interestingly, when the Cold War ended, these private companies gained even more strength. However, the recent breed of private security companies has taken on a somewhat different approach, with the industry being more inclined to operate in a legitimate way, filling in gaps that are being authorised by the government military.

Several specific projects have been identified as undertaken by these national security companies. For example, in Saudi Arabia, seven US base private security companies are involved in protecting the monarchy during periods of unrest, including providing logistics and intelligence for the Saudi Air Force to support them in offering safety and by using technologies that would not be readily available to the National Air Force. In Afghanistan a private security company is engaged with the protection of the president and other leading governmental figures, again supporting the maintenance of security in the region in such a way that the local army could not achieve (Schlesinger, 2004).

The financial importance of these national security companies must also be considered, with private military companies experiencing a dramatic increase in turnover, in recent years. Evidence presented by ArmorGroup suggested that the overall international market for these services was worth approximately 900 US million dollars in 2003, but had increased to 1.7 US billion dollars by the end of August 2004.

As well as providing specialist security services, such as those referred to above, there is a history of these private companies becoming involved in combat operations. Back in 1995, the company, Executive Outcomes had its own infantry battalion, as well as combat helicopters and artillery. Although the company is no longer in operation, it does indicate that private national companies are providing a force to be reckoned with on another level and are not simply restricted to offering specialist technical consultancy services. Despite this, very few national and international security companies advertise their ability to provide direct combat services (Isenberg, 2006).

However, in the modern context, direct combat does not necessarily refer to marching troops on the ground and could be including factors that would be viewed as being involved in direct combat, without the need to have a physical presence. One of the leading companies within this industry is DynCorp which has a contract with the US State Department to provide services in order to eradicate drug crops in Colombia, which involves providing pilots and trainers and working within combat zones. Bearing this in mind, there is clearly evidence to indicate that these national security companies are indeed involved in combat duties, even if they are not directly engaged in a way that military on the ground would suggest (Peterson, 2003).

The Problems with PMCs

Although it is expected that there are many reasons for the involvement of private companies; particularly within the conflict zones there are also many possible concerns as to what the use of these companies is likely to mean to national and international security in general. Over the years, private companies have been embroiled in several security scandals in relation to human rights’ abuses and this again raises questions as to how legitimate the actions of the companies are; but, more importantly, what can be done to ensure that they are offering an effective service, without acting to the detriment of the wider security issues being raised by the various jurisdictions. Several key concerns have been raised:

Firstly, from a political point of view, there are concerns that the actions of the national and international companies will threaten state sovereignty. National states have a monopoly on the use of force, yet by looking at the operation of the security company, it could be argued that private companies began to take on board their own ability to use force. As noted by the German parliament back in 2004, it was argued that the privatisation of the military would create a fundamental constitutional shift (Uesseler, 2008). As noted by the German parliament that by increasing the use of the private military “the state’s monopoly on force could be called into question or even possible eradicated”.

It was also noted by Uesseler (2008) at p.24 that “A third emphasis of the modern military companies is the area of intelligence, which includes everything from information collecting to outright spying. In the wake of the electronics revolution, many firms have developed techniques for information gathering and analysis that only they are able to master and offer as a service”.

By allowing these national companies to collect intelligence and recruit leading experts in this area, there is a concern that there is an element of brain drain being experienced by governments, with many young individuals viewing the government as an excellent training ground, but then looking towards the privatised companies in order to further their career (Schreier and Caparini, 2005). This can create a situation whereby there is insufficient expertise within the government to maintain the level of technical ability required to compete with private companies.

Similar issues are being faced within the logistics industry, where multiple individuals are undergoing training through government bodies and then looking towards the privatised companies in order to gain greater opportunities to improve their salary. All this indicates how the private companies have become more powerful and this, again eradicates strength and experience within the government. As these private companies begin to supply more and more expertise and products to the government, they start to hold greater power and can start to have political sway at a government level (Cook, 2002).

Specific concerns have been raised about the legality of these private companies and, in particular, how they operate within the countries where they work. There have been several previous reports of human rights’ abuses, although ascertaining the size, number and magnitude of this problem is naturally very difficult. However, one cited example by Uessler indicates that in 2004 a number of Blackwater employees entered into an Iraqi city stating that they were looking for terrorists; but, during this time, allegations were made that several of the personnel undertook night-time raids involving the mistreatment of women and children, as well as torturing and killing several men and teenage boys. As a result of their actions, several Blackwater employees were also killed and although there are some question marks over the actual actions of the employees, no legal action was taken against the company or the employees (Donald, 2006).

Ascertaining the actual legal operations of these private national companies is difficult to tell due to the secrecy that is provided to these companies when entering into government contracts. Even the contracts themselves are shrouded in secrecy, making it difficult for outsiders to establish when these national companies are acting within the remit of the contract and when they are not.

It is, however, argued here that the employees of these companies are liable for their actions, in accordance with international humanitarian law. Despite this basic recognition, bringing a case against them can prove extremely difficult, particularly where the actions have taken place in a state that has little or no legal structure around it. Amnesty International USA stated in its 2006 annual report that the use of outsourcing by the US military has created pockets of areas in Afghanistan that were essentially being treated as rule-free zones, yet are being sanctioned by the American firepower (Amnesty International USA 2006).

The contracts entered into between these private companies and government bodies are often extremely vaguely written, so that the company has a wide discretion and this can create difficulties when it comes to ensuring that these companies are behaving in a way that would be seen as acceptable by the government. From a practical point of view, this can also create difficulties, as these national private companies may be causing unrest in particular regions, thus making it harder for the military forces to then engage with the public and not be viewed as a threat. Moreover, where the local population has developed anti-American or anti-UK sentiments as a result of the activities of private military companies, this can pose a direct threat to the well-being of soldiers and the military.

A particular example of this can be seen in 2003, where there were several allegations of torture of prisoners in the Abu Gharib prison, based in Iraq. Several individuals were implicated, including those from the US military, police and those from private military security companies (Singer, 2004). Although there were several allegations of human rights’ abuses and torture, particularly during the interrogation of prisoners, no prosecutions ensued, with the private company undertaking its own investigations and concluding that no instances of abuse had actually taken place. However, the true actions which took place in this prison remain unknown and there are concerns that there have been very few instances where individuals have been held accountable for alleged activities of this nature, suggesting that there is a strong lack of accountability amongst these organisations.

Even more worrying was the instance in 2001 where a female employee of DynCorp blew the whistle on her colleagues who were allegedly running a prostitution ring in Bosnia with underage females, as well as presenting forged passports and purchasing illegal arms. It was also alleged that there were videos taken of employees raping female individuals in the area. Although all of the employees implicated in these events were dismissed, they did not face any criminal prosecution. Most notably, the whistleblower was also dismissed.

The issue of accountability becomes even more prevalent when looking at a national level of accountability (Walker and Whyte, 2005). When these types of contracts are entered into between individuals within the government and private national security companies, those responsible for the monitoring of the contracts are often located in the government building, which is far removed from the actual location at which the contracts are being performed. Those involved in the state military in these foreign locations are also unlikely to be interested in the supervision of private companies, as they are not part of the chain of command and there is no budget provided for this type of supervision, making it very low down on the priority list for any military group within a region.

Bearing this in mind, accountability is not shown towards the military actions and Congress or any other government body is in no position to understand what is going on, on the ground. Furthermore, a particular jurisdictional issue arises, in terms of implementing accountability, with private corporations only having to state that they intend to ensure that their personnel will respect any national laws in the jurisdiction in which operating and will comply with international human rights’ standards. Even where there are suggestions of private individuals breaching these rules, the individuals involved are given significant protection. The Coalition Provisional Authority Order presented on 17 June 2003 meant that the Iraqi provisional government had granted complete exemption from potential prosecution of any personnel who were involved in violence in the region on behalf of the Coalition and this was extended to include private individuals (Department for International Development 2000).

The position is no easier when looking at the potential accountability of private companies from an international point of view, where a distinction is drawn by the Geneva Convention between individuals who are armed combatants and civilians. The difficulty immediately emerges, as those involved in private security companies cannot be viewed as civilians, as they are involved in the process of war. As defined by the Geneva Convention, combatants are “people directly and actively involved in hostilities”. However, bearing in mind the way in which warfare has developed, in recent years, it can be difficult to determine precisely when an individual would be considered to be a combatant by the Geneva Convention and when they would be viewed as a civilian. It is contended here that there is every possibility, when an individual is located in a safe jurisdiction such as the US or the UK and is effectively pressing the button on military activities elsewhere, that determining whether or not they are deemed to be directly involved in military activity would become a much more blurred line.

Another area of concern since the proliferation of these private security companies is the impact which they have on the Third World when it comes to destabilisation, as well as potentially supporting damaging weapons’ trade. Following the end of the Cold War, political control over the way in which war was undertaken was largely lost, with multiple stocks of arms and various other supplies such as helicopters and even tanks becoming available on the open market. For example, in Uganda, an AK-47 rifle was sold for the same price as a chicken, showing just how readily the most damaging equipment in the world could fall into the wrong hands, where private security companies are concerned. This presents both a challenge and an opportunity, if private companies are able to obtain as much artillery firepower as they want (Krahmann, 2005). However, this in itself does not present a major threat, as these private security companies are nominally working alongside the government to achieve peace.

Of perhaps greater concern is the fact that private security companies have been implicated in providing arms in conflict situations. In the UK, a report was undertaken by the government in 2002 which looked at private military companies and the options for regulation and suggested that the ability of these private companies to provide arms to groups of insurgents in very different locations needed to be targeted as a priority. During this report, however, it was noted that the activities of private companies tended to go hand-in-hand with the industry of exporting arms, as those purchasing arms often wanted a service package alongside the actual equipment itself and therefore needed a physical presence of security personnel.

This issue leads on to another area of concern in relation to these private security companies. By their very definition, these companies are free to contract with whomsoever they choose and, whilst this may often be a government body within countries such as the US and UK, this is not necessarily the case.

Moreover, there is no regulatory reason why a private company could not engage with rebel movements and may find itself working with organisations that are not necessarily deemed to be supporting international humanitarian standards.

A commercial organisation by its very nature is profit driven, rather than being driven primarily by humanitarian standards and therefore where a commercial organisation has an interest in any form of ongoing conflict, difficulties are likely to arise. Furthermore, many of the privatised national security companies are heavily involved in the surveillance and maintenance of global information, resulting in a situation where it may well be the company itself that is tasked with looking into whether or not other security companies are behaving in an appropriate manner.

Controlling the PMC

Given the issues raised above and the central importance now being placed on the type of private national company, it is unsurprising that many governments are looking towards how they can potentially regain control of the security companies and create a regime which is effective and makes the best use of resources, but not in such a way that will obstruct the underlying objective of maintaining peace (Cilliers and Douglas, 1998).

When looking at the position taken by the UK Foreign Office Minister, they are working heavily towards a scheme which will involve regulating companies offering security in a way that has national commercial application. This will mean that at a national level all companies within the industry will eventually meet with the same standard. While this type of regime is seemingly necessary, the precise way in which this will be managed and how it will be possible to maintain the necessary level of independence, given the strong contractual ties that often exist, between the security company and the government (Almond, 2005). Despite the fact that the practical way in which the rules and regulations will be implemented has not been discussed in any detail, the options in the industry for voluntary self-regulation are seemingly not suitable as national security companies has complex commercial operations, and will look towards expanding their pocket, wherever possible. Self-regulation, particularly given the lack of transparency within the industry, is therefore highly unlikely to take place.

One of the key difficulties associated with security companies, is the fact that they often operate across national borders. However, it would seem that having some form of international framework of rules would be the most appropriate way of controlling the operation of these companies and of preventing difficulties from emerging, due to the fact that the contractual relationship is often geographically widely spread. Despite this, it is still recognised that having a full international agreement in terms of how the security company should be managed, is unlikely to be forthcoming and, as such, the management of the security companies is likely to rest initially with the national legislators.

To consider the viability of this type of legislation, the approach taken by the UK will be looked at, although it is recognised that there are similar issues likely to arise in many other jurisdictions, including the US.

The activity of mercenaries in the UK is controlled and regulated by the Foreign Enlistment Act 1870; however, there is no specific legislation dealing with this new breed of private military and security company. As a direct result of the arms to Africa scandal that took place in 1998, the Foreign Affairs Committee made a request for a Green Paper, in order to examine the way in which these types of private military and security companies could be regulated, in the UK. The Green Paper itself was published in 2002 and offered six key options for the control of this type of security company.

These options were as follows: firstly, the option to ban military activity abroad in its entirety; secondly, to ban recruitment with the express intention of undertaking military action abroad; thirdly, having some form of licensing regime in place for the military services being provided; fourthly having a registration or notification regime that could be used by those engaged in military services; fifthly, specific licenes which would encourage private security companies to gain an overall licence their activities; and finally, a regime of self-regulation. As discussed previously in this report, it was noted by those responsible for the Green Paper that it would be possible to have a different level of regulation, depending on the services being provided (Select Committee on Foreign Affairs Sixth Report 2005). For example, a higher level of regulation would be necessary where direct conflict is being entered into, whereas it may be appropriate to have a lower level of regulation for organisations that are involved in less direct areas of security, such as providing private bodyguards or those involved in training and development.

Following multiple discussions in relation to the findings of the Green Paper, it was agreed by the Committee on Foreign Affairs that it would recommend that private security companies should be expressly prohibited from taking part in any direct armed combat operations. Also, individuals should only carry firearms in order to defend themselves or to train, but not actively engage in combat situations. Other activities should be subject to licence, although the discussions were relatively detailed, it was accepted by the Foreign Affairs Committee that nine of the recommendations had yet been made into legislation. However, although the debate continues in this area, as it currently stands, these types of companies remain entirely without accountability. Self-regulation has been widely accepted as ineffective in this type of industry which has become increasingly difficult to control. Therefore, expecting private companies when faced with a difficult situation to then become involved in self-regulation is simply unreasonable.

Despite the concerns relating to the lack of accountability and the multiple different problems which have surrounded the issue of national and international security companies, the UK government has been very reluctant to put in place rules that would ultimately outlaw the use of these types of security companies. Arguably, in many cases, these security companies offer a great deal of strategic usefulness and are able to support the services being provided by the military. At times, private companies can provide skills and experience that are not readily available within the military; therefore, to completely prohibit their operation would potentially create the situation whereby the UK is unable to compete, internationally.

As previously noted, issues relating to national security companies are often international in nature and, as such, in reality, international rules and regulations need to be put in place in order to manage the operations of these companies, regardless of their underlying nationality. As has been clearly shown in Iraq, many different security companies from different countries become involved; therefore, in order to offer any degree of consistency, it will be necessary to have overall rules and regulations that apply to all such national companies (Bearpark and Schulz, 2007).

There are several international conventions and rules relating to the activities of mercenaries, with suggestions being made that they should be extended in order to incorporate private military and security companies. However, no consensus has been reached on this matter and therefore the situation remains very much up in the air, with no specific international rules and regulations being put in place, in order to control the activities of these private military and security companies (Millard, 2003).

Interestingly, given the fact that a large number of South Africans are involved in these private security companies, it is in fact the South African government that has forged the way forward when it comes to legislation to control and regulate these security companies. In South Africa, the Regulation of Foreign Military Assistance Bill was passed in 1998, which bans all mercantile activity and regulates any military assistance. This includes all of the secondary support issues such as providing finance, logistics, or intelligence to the military through these private security companies. Even though South Africa has established rules and regulations, there have been relatively insignificant penalties, as well as multiple loopholes which ultimately mean that the legislation is ineffective (Caparini, 2005).

In other jurisdictions, concerns have been raised that there is seemingly a revolving door, with government officials becoming involved in private military and security companies and vice versa, as part of their career development, thus making it very difficult for governments to actively engage in the regulation of the industry with which it is so closely intertwined (Beyani and Lilly, 2001).

Conclusions

The increasing importance of national and international security companies has created a great deal of regulatory difficulty, both nationally and internationally. Fundamentally, however, there is a strong lack of accountability and a lack of transparency which makes it very difficult for any government body to be responsible for the management of these types of private security companies. More problematic is the fact that the government is often fundamentally intertwined with the company and is simply not willing to upset the strong relationship which has built up, over the years. In practice, it will be necessary for an agreed international standard to be put in place that applies globally and requires a much higher level of transparency and accountability, regardless of where the security company is located and regardless of where it is operating.

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