David Kinley and Odette Murray discuss the state’s duty to prosecute, deter and discipline severe human rights abuses committed by private military firms in the report,’ Businesses that Kill: Suing Blackwater’ (PMC). The Nisour Square killings involving Blackwater private security company have demonstrated the lack of civil enforcement on PMC. The Congressional Research Service highlighted the prevalence and severe regulatory problems of PMC in Iraq shortly after the Nisour attack in September 2007(3) 17 civilian Iraqis died in Baghdad’s Nisour Square in the hands of Backwater staff. The incident brought to light the problematic regulation and the lack of accountability mechanisms in PMCs involved in a lethal battle. The authors concluded that whereas progress can be achieved using private sector initiatives, failures of the current regulatory mechanism for PMC must be seen in the light of how the state leads and acts to PMC.
David and Odette argue that burden of PMC regulation should be placed on states, individually and collectively. States must promote and establish authority that ensures PMC remain accountable based on internationally and domestically accepted measures. These measures can be mandatory and voluntary initiatives founded on both private and public law principles. The authors further note that a lot of orthodox legal categories should be changed to align with contemporary issues in private military enterprise (19). However, the Nisour incident portrays the slow approach of the government to deal with criminal behaviour of PMCs. The authors’ further advocate for self-regulation measures to control the actions of PMC such as self-regulation. In comparison to other regulatory alternatives, self-regulation presents unique advantages. It is a cheap form regulation comprising the government and little financial costs. Also, self-regulation helps establish standards to be followed by PMCs.
While states have the authority to use reasonable violence within their jurisdiction, current legal framework does not explain how and to what extent the state can use their monopoly over the use of violence. In support of this statement, David and Odete Murray note that “states have the authority, and indeed the need, to delegate aspects of their monopoly over violence…” (12). The state achieves this monopoly by allowing certain none-state actors to use any means possible during self-defence. Thus, the state can allow PMC to arrest citizens and grant corporations the authority to use force to services that include fighting wars. However, the current legal framework does not fully explain the extent to which PMC can use force. Serious allegation related to violation of human rights by security companies contracted by the state has been on the rise. In the Nisour square incident, employees of the US Blackwater security firm in a convoy of armoured vehicles killed 17 Iraqi civilians. According to the US military investigations, more than 100 rounds discharged were form backwater personnel. Eyewitness detailed how shots were fired by helicopters hovering overhead. The incident not only sparked a series of diplomatic and legal reactions, but also exposed the deficiency of regulatory mechanisms in handling private security corporation when serious violations of human rights take place.
Addressing violations of human rights by PMC has further been complicated by the failure of the law to clearly define criminal actions of PMC. Also, the serious problem of gathering evidence in areas of conflict zone makes it difficult to prosecute PMC and their employees. For example, in the USA v. Slough case, David and Odette note that the court dismissed statement obtained from the accused Blackwater employees (10). The court argued that evidence brought by state department officials after shooting in Iraq threatened the loss of employment and therefore could not be used in criminal prosecution. At international level, government have constantly denied involvement and responsibility for criminal cats of PMCs operating within their jurisdiction. it is not founded on whether a breach of intentional law happened or not, but because government deny any connection with PMCs. however, there is doubt that some actions of PMCs are influenced and engineered by the state. The authors suggest consideration of soft laws to regulate PMCs by encouraging them to voluntarily some self-regulation. They argued for soft law instead of hard laws where PMCs are forced to accept regulation. However, the actions of PMC require the use of hard laws to ensure PMCs are accountable and responsible. Also, hard laws will help mitigate diplomatic crises and mistrust that follow armed conflict involving PMC.
In support of improved accountability measures, the international peace operations states that the state must establish regimes that enforce the accountability of private military. The regimes should however be founded on both international and domestic apparatus and on public and private principles. Adopting such measures mean changing a lot of orthodox legal regulations. Without strict measures, the continued use of PMC as tolls for foreign policy will continue to shake international relations especially when violations of human rights are evident. Private military firms have historically ben operating free form the bounds of national regulatory frameworks. There has been increased lack of accountability where PMC have established numerous subsidiaries across the world. The absence of harsh regulations has permitted PMCs to continue committing crimes in foreign countries without facing justice. Part of the problem is that is it usually difficult to make a connection between the state and PMC when accountability is needed.
States are responsible for ensuring that PMC meet the relevant standards and therefore cannot escape obligation under the humanitarian law. The amount of scrutiny that a PMC will go through in US relies on whether it is working for foreign governments of for the United States. since many of the PMC companies are located in Iraq make direct contact with the US department, termination of contract between the agency and the security firm should rains the major mens of regulating PMCs. in the article, rethinking the role and regulation of private military Companies: what the united states and united kingdom can Learn from shared experiences in the war on terror, Grayson Irvin argue that a bête way to regulate rogue PMC is through termination of contract (12). However, the Nisour square massacre has confirmed that current legal system can allow a private to get away with killing of 17 civilians. A Six months after the incident, the USD State of defence permitted Blackwater to continue offering military services for one more year. Under the new name o Xe, the company remained in the industry until 2009 when it was removed from Iraq related contracts.
There are certain private laws that restrict PMCs. these laws act draw boundary on the behaviour of PMC, although with a lot of difficulties. Some of the relevant laws include contract, occupational safety, labour laws and health. Their relevance, however, is based on the physical harm that face security contractor. On the contrary, Tort law can cover the behaviour of PMCs and their employees evidenced by the cases initiated in US against Blackwater Company and family of the affected Nisour Square killings. Seeking compensation using tort laws is not only possible for the affected Iraqis, but also for Blackwater employee who may sue for injuries sustained at Iraq. Using tort laws raises the political and the non-justifiable doctrine that prevents courts from deciding on political matters (17). For example, the court is barred from making decisions on military decision. The government contractor defence further gives the US sovereign immunity form tortious claims on military contracts. David and Odete argue that the two doctrines make it difficult for the injured to present tor claims (17). The doctrines, instead of ensuring government’s immunity from tortious claim during complex military matters, they are used to prevent compensation claims by people on government contracted agents. Other than relying on private laws, pacing PMCs under the strictures of military will help raise accountability. by having both DOD (Department of defence) and non-DOD firms will not only ensure ten military orders are followed, but also help discipline PMCs. however, while this approach may appeal to a commander, it is difficult to implement. David and Odette notes that ion the US Uniform Code of Military Justice (UCMJ), individuals serving with armed forces in the field are punishable. The amended of UCMJ later provided that the provision would cover people involved in contingency operations to cover the situation in Iraq.
Irvin, A. Grayson. “Rethinking the Role and Regulation of Private Military Companies: What the United States and United Kingdom Can Learn from Shared Experiences in the War on Terror.” Ga. J. Int’l & Comp. L. 39 (2010): 445.
Kinley, David, and Odette Murray. “Corporations that Kill: Prosecuting Blackwater.” (2010).