By Alexander Perepechko

Published on April 9, 2016

Illicit activities authorized by powers: contractors vs. mercenaries

Private military and security companies have been operating in a legal vacuum for decades. In doing so, they pose a considerable threat to civilians and to international human rights law. Confusion begins with the subject matter definition.

According to The Montreux Document. On Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict (hereafter, The Montreux Document) (2009: 9), private military and security companies are private business entities that provide military and/or security services, irrespective of how they describe themselves. Military and security services include armed guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel.

In accordance with the International Code of Conduct for Private Security Service Providers (ICoC) (2013: 18), private security companies and private security service providers include any company whose business activities include the provision of security services either on its own behalf or on behalf of another, irrespective of how such a company describes itself. Security services guard and protect persons and objects, such as convoys, facilities, designated sites, property or other places (whether armed or unarmed), or any other activity for which personnel are required to carry or operate a weapon in performance of their duties.

So, what is similar in these definitions? And what is the difference between them?

The Montreux Document and the ICoC are two of three main norms (we will deal with the third norm later) regulating private security company activities in the international arena. Both documents agree that private military and security companies are private business entities, non-state actors, and not subject to international law. These companies provide services for military operations. The companies recruit non-military and former military professionals as civilians to carry out passive or defensive security activities (see del Prado, 2015).

Yet, these individuals can hardly be considered as civilians because they often carry and use weapons, interrogate prisoners, load bombs, and drive military trucks. Critically important is that in some situations an armed contractor can easily switch from a passive, defensive role to an active, offensive role. At the moment this change happens, the contractor’s actions can be viewed in terms of human rights violations and even destabilization of governments (del Prado, 2015). These individuals also cannot be considered as soldiers or supporting militias under international law because they are neither part of any army nor in the chain of command. In addition, they often carry different passports. Finally, these individuals usually are not mercenaries because they operate legally in foreign countries under contracts or legally restricted companies.

The important difference is that the word “military” is absent from the definition of private security companies in the ICoC, whereas the Montreux Document refers to private military and security companies (PMSCs). Why is it so important?

There is tremendous growth of the PMSC industry after September 11, 2001. Globalization engendered powerful non-state actors in the international arena and PMSC is among them. This industry crosses national borders. The size, wealth, and influence of these companies became immense (see Frolova, 2013). Immense to the extent that the modern western state often does not have the capacity and/or will to properly regulate this non-state actor. Consequently, the growth of PMSCs has brought about numerous incidents of transgression. For example, the Nisour Square incident, when on September 16, 2007 employees of the American PMSC Xe/Blackwater opened fire and killed 17 Iraqi civilians, was publicized and analyzed many times. Since 2005, this company was involved in about 200 escalation-of-force incidents that involved the firing of shots. In over 80% of these incidents, its forces fired the first shots (Del Prado, 2015). In other words, in these cases the Xe/Blackwater employees were in an active, offensive role.

To address gaps in international humanitarian law as it applies to PMSCs, the Swiss government in cooperation with the International Committee of the Red Cross (ICRC) consulted with governments on how to ensure and promote respect for international humanitarian and human rights law by states and PMSCs operating in areas of armed conflict (see Buzatu & Buckland, 2015). The intergovernmental dialogue is finalized in the Montreux Document. This document was developed using the convention approach to international regulation – regulation via states. The regulations target, in fact, combat arms companies and units. The active, offensive role of PMSCs in wars and low intensity conflicts (LICs) is required to be regulated by the states which signed the convention. Currently 53 states and 3 international organizations (EU, NATO, and OSCE) support the Montreux Document. Almost all European countries, the US, Canada, Australia, New Zealand, Japan, China, and South Africa have joined the Monreaux Document (Participating States, 2016).

Representatives of the private military industry avoid association with activities related to combat arms units or companies. The industry leaders want to present their businesses as providing combat service (operational support to combat arms units; they do not directly engage the enemy themselves unless in self-defense) and combat service support (offer logistical and administrative support to combat arms units) (see McFate, 2015). The leaders of the industry, which moves tens or possibly even thousands of billions of dollars, demanded the development of international standards for PMSCs. The Swiss government launched another initiative which resulted in the International Code of Conduct for Private Security Service Providers (ICoC). This code articulates clear standards for private security providers based on international human rights law. Also, the code has an independent oversight and compliance mechanism to impose sanctions when the ICoC is breached, as well as to provide remedies to victims of private security companies. This document was developed using a multi-stakeholder approach. The ICoC uses contractual mechanisms to impose human-rights compliant standards directly on the companies themselves, regardless of where they are operating.

The ICoC clearly applies fully to any private military company that has signed it. There are currently 97 private security companies, 6 states, and 16 civil society organizations in the International Code of Conduct Association (ICoCA) (International Code, 2016). More than half of private security companies that are members of the ICoCA are from 4 countries: 23 companies are from the UK, 16 from the US, 8 from Cyprus, and 6 from Pakistan. Australia, Norway, Sweden, Switzerland, UK, and the US are currently in the ICoCA. 6 civil organizations are from the US and the rest are from Africa and South America. It remains to be seen how workable is this regulatory mechanism requiring coordinated effort of various non-state and state actors.

Numerous analysts of the Montreux Document and the ICoC often miss one essential detail. The Montreux Document (2009: 36) defines the difference between combatants and not combatants. The status of PMSC personnel depends on the contract under which they are employed and on the services they provide. It is assumed that the large majority of PMSC personnel are not combatants and cannot participate in military combat. If captured in combat, they are not protected by the Geneva Convention relative to the Treatment of Prisoners of War. The Montreux Document highlights that combat arms units or companies (the Montreux Document uses slightly different terms to describe these units and firms; to avoid confusion, we are not going to discuss this issue) are combatants and can be incorporated into PMSC forces. The ICoC does not even mention these important matters. Why?

It seems as though ex-generals and security and law enforcement personnel demanded to develop the ICoC to offset the Montreux Document! Leaders of the industry, for whom private and security services are big business, are not interested to make public that there are links between the phenomenon of PMSCs and mercenaries. Indeed, like some organized armed groups incorporated into PMSC forces, personnel of mercenary private armies, which can conduct autonomous military campaigns, are also combatants (see Anichkin, 2015; McFate, 2015). PMSCs and mercenaries can be used as a means, say, of violating the sovereignty of states. The attempted coup d’état in Equatorial Guinea in 2004 is a classic example…

Not only leaders of the private military industry are interested in the legal vacuum for PMSCs. The United States of America did not sign the International Convention Against the Recruitment, Use, Financing and Training of Mercenaries (hereafter, the UN Convention on Mercenaries) of 1989. In terms of the regulation of private military activities, the UN Convention on Mercenaries is almost unanimously criticized as an unworkable treaty. It seems as though this international convention – regulation via states – has no direct impact on the activities of PMSCs. Why?

Only 43 states have endorsed the UN Convention on Mercenaries. Remarkably, Germany, Italy, Belgium, Poland, and Romania are the only NATO members currently endorsing this document. New Zealand is the only Anglo-Saxon country to sign this treaty. BRICS members (Brazil, Russia, India, China, and South Africa) are not among the states of this international regulation.

The UN Convention on Mercenaries obliges the signatory states to adopt the necessary internal legislation to conform with the treaty provisions, which is, in turn, binding on PMSCs. In other words, PMSC home states (states of nationality of the PMSC) do not want to hurt this lucrative industry. Many contracting states (sometimes called client states, i.e. states that directly contract for services of PMSCs) and states hosting PMSCs as territorial states (states on whose territory PMSCs operate) are not part of this convention. The UN Convention on Mercenaries does not cover the industry in general or its providers and clients worldwide.

The US is a home state of many PMSCs. American authorities de facto tolerate or support illicit activities of mercenaries. At any moment, America can switch from a strategy of forward partnering to an offshore balancing strategy or a territorial strategy of engagement. This change in strategy would require land forces. PMSCs and private armies, managed by former US Army and Marine Corps personnel, will support land warfare. Also, since military enterprises and mercenaries are related and in the same category, it is easy to transform PMSCs into mercenary firms. The United States has hired no private navies or air forces…

When contracted by a government, a PMSC receives lucrative contracts and become an executor of governmental tasks in grey areas of national security. To receive these government contracts, the PMSC usually needs to support a ruling party, have close-knit connections to high-ranking bureaucrats, or build relationships with political decision makers.

Indeed, the shift of military and security resources from state bureaucracy to the private sector was part of the Cheney-Rumsfeld doctrine. The Obama administration has not altered this shift. Does this imply a consensus of otherwise fiercely competing elites in the United States about key military and security building efforts?

 The privatization of inherently public functions, such as the legitimate use of force, is an indicator of the decline of the American state. This privatization process started with the end of the Cold War and accelerated after September 11, 2001. More and more private companies work on programs related to counterterrorism, homeland security, and intelligence. For example, today more than 2/3 of the budget of American intelligence is spent on contractors. These changes must have an impact on America’s place in the international labor division and on the circulation of elites in this country.

 Does the Unites States resurface in the international arena as a primary vendor of security? Does privatization of military and security services signify the rise of new elites? (Kurginyan, 2008: 119; Kurginyan et al, 2011). If the answer is “yes,” do these new elites have some attributes of ancient elites in times before the Westphalia state? If the last suggestion is correct, then we will soon witness a certain “renaissance” of an archaic political culture in the West…

Despite various attempts to regulate activities of PMSCc before and especially after September 11, 2001, there is no unified set of norms regulating PMSC operations on the international level. It seems as though American elites prefer to keep the legal status of private military services blurry. Government can employ these companies to deal with illicit structures of power or to develop a nexus with the underworld. Non-state armed formations, such as paramilitaries, drug cartels, terrorists, self-defense groups, and warlords are among these illegal actors. American military and national security scholar Magdalena Defort (2015) (originally from Poland) found out that illicit activities authorized by powers can run into serious problems. A few are listed below.

1) Most importantly, if a private military contractor gets in touch – even implicitly – with illegal and underworld entities, then there is a perception that the state regards these illegal and underworld entities as legitimate actors. In the meantime, neither society nor the government of a democratic country views terrorists or drug cartels as legitimate actors.

2) Illicit activities de facto authorized by the government at times lead to unpredictable consequences. Fast growth of PMSCs outstrips government regulations and creates non-transparent social spaces (grey legal areas) for private military contractors. Recall that illegal and underworld actors operate without formal registration. Working relations and interactions between PMSCs and illegal organizations form a network, which can potentially be used by criminals and enemies of the state to penetrate governmental bodies.

3) By becoming a client of PMSCs, the government now and again risks running into corrupt businesses, which provide services to criminal organizations.

4) Finally, illegal actors groomed by PMSCs can change sides and turn into enemies.

Classified!

The influence of military and security elites and magnitude of the national security apparatus has historically gone together with US participation in wars and conflicts abroad. Three high points in the securitization of America after the Second World war were under Democratic presidents Harry Truman and John F Kennedy and under Republican president Ronald Reagan (Madar, 2012a). Under these presidents, the military and security establishment received the budget, autonomy, and authority to impose limitations on our freedoms.

After September 11, 2001, the number of secret laws, regulations and directives skyrocketed and became a threat to democratic and accountable government in the United States. According to Russell Feingold (Secret Law, 2008), a former U.S. Senator, this problem is systemic: “It is […] clear […] that this systemic problem needs a systemic solution. While it is true that this administration has raised secret Government concerns to a new level, I think it would be naive to expect that this problem will disappear when the Bush administration leaves office. Government secrecy has been compared to kudzu, and I think there’s something to that: once it takes hold, it’s difficult to pry loose.”

Activities of hypertrophied and often uncontrolled bureaucracy of the security apparatus are regulated by classified legal procedures. After September 11, 2001, the Department of Justice developed new procedures aimed at the protection of sensitive information. What are the consequences?

Every year, U.S. federal government agencies classify trillions of new pages of text (Farrow, 2013). About 854,000 workers now hold top-secret security clearance (Priest & Arkin, 2015a). Analysts who work with documents and data obtained by domestic and foreign spying publish about 50,000 intelligence reports every year (Priest & Arkin, 2015b). In 2011, about 77 million documents were classified; this is 40% more than in 2010. Some government agencies were found to be classifying almost one petabyte of new data every year, the equivalent of 20 million filing cabinets filled with text! The classification of information costs the federal government about 10 billion dollars per year (Madar, 2012b). Unchecked over-classification impedes informed government decisions and even enables corruption and misdemeanors. Observers (see Sledge, 2014) suggest that the real issue is that not only the new regulations of the Department of Justice but also Executive Order 13526 (2009) of President Obama permit too much information to be classified.

The Transportation Security Administration (TSA) deployed body scanners in over 140 airports. The No Fly List of people who are prohibited from boarding a commercial aircraft for travel in or out of the United States was created and is maintained by the US government’s Terrorist Screening Center (TSC). The number of names on this list is growing, from 10,000 in 2011, 21,000 in 2012, and 47,000 in 2013 (How Does, 2016).

The Terrorist Identities Datamart Environment (TIDE), the federal government’s central repository of known and suspected international terrorists, had 1.1 million entries as of December 2013. About 25,000 were American citizens or lawful permanent residents. The FBI’s Terrorist Screening Database (TSDB) is commonly referred to as the terrorist watch list. In 2013, the government made 468,749 nominations for inclusion to the TSDB, up from 227,932 nominations in 2009 (Ackerman, 2014). In 2014, the TSDB had 800,000 entries as of September (when data were accessed). About 40,000 were U.S. citizens or lawful permanent residents.

There is some overlap between the two watch lists. The FBI’s terrorist watch list includes names drawn from the TIDE database and from the FBI’s own surveillance of domestic terrorists who may have connections to international terrorism (Kiely, 2015). Compartmentalization and unwillingness to share information is a well known ailment of bureaucratic agencies.

In 2011, the White House promulgated the National Defense Authorization Act (NDAA), permitting the federal government to imprison any American citizen suspected of terrorism for an undetermined time without a court decision (Text of the National, 2011). Then, this administration authorized the physical elimination of terrorists abroad. Persons over 16 years old and individuals who do not directly participate in military operations can be included in this category. By the end of 2013, the total number of drone strikes by this administration was reportedly 327 (Gonzales, 2013). While much about drone strike capabilities are classified, President Obama reportedly has about 7,000 drones at his disposal to defend the United States against al Qaeda and other terrorists in Pakistan, Yemen, Somalia, and other countries.

There have been multiple proposals to fix problems pertaining to secrecy. One was to identify a consensual middle ground that preserves the security of authentically sensitive national security information while reversing the growth of secret laws, regulations and directives. In other words, the distinction between legal analysis, which should be released, and operational intelligence information, which should be protected, has to be made (Statement of Steven, 2008). Unfortunately, the United States Foreign Intelligence Surveillance Court (FISC, or FISA Court) was unwilling (and itself unable) to accept and implement this distinction in practice because the boundaries where the data ends and analysis starts are uncertain. Moreover, two analysts can use the same data but give different answers to the same research question. Another practice, an analyst using the same data to prepare a set of reports with different answers to the same research question, is also known in the intelligence community. This happens when a variety of customers with different political tastes and preferences need to be satisfied. Indeed, the job security for an analyst can be at stake.

The pending State Secrets Protection Act also represents a possible approach to reconcile conflicting interests in secrecy and disclosure (Text of the State, 2016). With increasing and disturbing frequency, military and national security officials hide behind Paragraph 4 of the Classified Information Procedures Act (CIPA), enacted in 1980 to regulate the use of classified information in federal criminal prosecutions. Specifically, Paragraph 4 permits the government to make ex parte (with respect to or in the interests of one side only) submissions to the district court in an effort to avoid provision of specific classified materials to defense lawyers (see Dratel, 2007). After September 11, 2001, Paragraph 4 has been increasingly used by the government. The rule of law, after all, is one of the things we are committed to protect and the existing Secret Law is inconsistent with the fundamental principles that unite Americans.

The USA Freedom Act, passed by Congress and signed by the president in 2015, reauthorizes parts of the USA Patriot Act. Continuing terrorist attacks in the United States and Europe highlight the ineffectiveness of relying upon bulk data collection and intelligence agencies’ watch-listing processes to keep us safe from terrorism (Rowley, 2015). The new act bans the notorious bulk data collection of Americans’ phone records and Internet metadata. The bill limits the government’s data collection to the “greatest extent reasonably practical” (USA Freedom, 2015). This means that the government cannot collect all data pertaining to a particular service provider or broad geographic region, such as a city or area code.

Recently, it was found out (see Cahall, et al., 2014) that since September 11, 2001, the contribution of the National Security Agency’s (NSA) bulk surveillance programs to the identification of terrorist cases has varied between 1.8% and 4.4%. Traditional investigative methods (e.g., use of informants, tips from local communities, targeted intelligence operations) provided the impetus for investigations in the majority of cases.

Under the USA Freedom Act, the secret FISA Court is still able to issue subpoenas but they are limited to collecting information that directly pertain to a terrorist and his or her associates or activities. The bill also requires this standard for national security letters and pen registers, two other Patriot Act tools used to access Americans’ records.

The bill also makes changes to the FISA Amendments Act (FAA), the sweeping 2008 law that codified the warrantless wiretapping program. It inserts an important restriction that prevents the government from searching through FAA-collected data for U.S. personal data in the absence of an emergency or a court order. To finish, the bill includes the creation of a special advocate before the FISA Court and new transparency requirements.

Secret drone warfare ignites a lot of hatred against the US government. To regulate this activity, analysts (such as Gonzales, 2013) suggest due process standards, which could include the following steps: a) the establishment of an enemy combatant definition specific to drone targets, b) a requirement that the President notify Congress of any potential U.S. citizen target and of any executed strike, c) verification, immediately before the strike, that the American target continues to meet the definition of enemy combatant, and d) the opportunity for an advocate of the target to challenge the classification before a neutral decision maker.

Conclusion. Not a post-mortem yet… Criminalization and privatization of the state?

Our five-part research essay journey is finally over… It took much longer than I had initially planned to illuminate the changes in governmental regulations pertaining to illegal activities, illicit activities, and activities regulated by classified legal procedures. What are these activities about? When did governmental regulations change for these activities? Why did these changes occur?

The American liberal state and society are drifting in the direction of post-modernity… Our Westphalian state is, in fact, changing its nature. Most likely, American elites silently agreed that a laissez faire strategy is the right way to go… If this is true, then it becomes easier to explain the growing use of the state by elites for personal enrichment and the growing demand of these elites that citizens sacrifice more without offering anything in return… Vilfredo Pareto, one of the founding fathers of elitology, warned over 100 years ago that a declining elite “does not lose its rapacity and greed for the goods of others, but rather tends as much as possible to increase its unlawful appropriations and to indulge in major usurpations of the national patrimony” (2000: 59).

After September 11, 2001 it has become obvious that the American state has difficulty performing its key function – to provide security to the population. Violent non-state actors increasingly challenge our public, military, and national security structures. Indeed, the American state has an enormous technological advantage over these challengers. However, violent non-state actors demonstrate that they know the human terrain in their own countries and in America quite well and occasionally can be one step ahead in their fight against the hierarchical, slow, and emptied of Judeo-Christian values western state. Moreover, violent non-state actors can successfully use some innovations and technologies invented and developed by the western state against this state…

Our research shows that often the United States is unable or unwilling to act in response to the new challenges using the existing legal framework. We illuminated that this problem has three important consequences (Figure 22).

Figure 22. Securitization of post-heroic America. Paradigm for Late Modernity (Source: Generated by the author).

1. Organized crime and low intensity conflicts (LICs) often coalesce and thus significantly expand the illegal domain in post-September 11 America.

2. Some non-state illicit structures become so powerful that the state cannot ignore them anymore. Nor can the state openly deal with them. For the state one way to solve this impasse is a) to hire private companies to deal with these illicit structures and simultaneously b) to keep the legal status of these companies blurry. In doing so, the state implicitly allows illicit activities. Unfortunately, this practice became routine and tends to expand. In all probability there is an unspoken consensus of American elites on this matter.

3. The two previous considerations plus multiple failures of the security apparatus to protect the population have resulted in a growing number of classified legal procedures to regulate national security activities. Secrecy allows the national security apparatus to avoid responsibility for failures and to keep intact the employment, benefits, and perks of executives and employees of this apparatus.

The criminalization and privatization of state activities and the criminalization of elites themselves do not need to be seen with fatalism. Facing insecurity, citizens are not going to be indefinitely silent. The state and its masters should not expect to be paid for services they fail to provide over and over again. When, say, police forces become useless, citizens hire private security guards. For example, to combat an epidemic of crime in their neighborhood, residents of Magnolia, a quiet vicinity in Seattle, Washington State, hired the private security company Central Protection (see Barnett, 2016). It is the first step that costs.

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