One of the taglines for the latest instalment for the Call of Duty (CoD) franchise is ‘The world’s most powerful military is not a country. It’s a corporation’. While this may sound far-fetched a decade ago, nowadays, CoD may have a higher resemblance to reality than we would like to admit.
On 22 October 2014, four former Blackwater security guards were convicted by a US Federal Court for the 2007 shooting of 31 Iraqis (14 of which died) in Baghdad, in an incident known as the Nisour Square incident. The security guards were tasked with making sure the square was safe for a convoy containing US diplomats. They claimed they acted out of self-defence as an approaching white Kia was unresponsive towards repeated warnings. As it turns out, the driver of the Kia, Ahmed Hither Ahmed Al Rubia’y, was a civilian. Prosecutors accused the guards of using excessive force, and in the end, the jury found three of the accused guilty of manslaughter and weapons charges, while the fourth guard was found guilty of murder.
This case brings the issue of private military companies (PMCs) back into the spotlight— an issue that usually does not get the attention that it merits. Indeed, the increasing involvement of PMCs in contemporary military operations has been remarkably discreet, given the scale of the expansion. By March 13 2013, 62 per cent of American forces in Afghanistan were from PMCs. Overall, they are responsible for more than 90 per cent of US diplomatic security, and the Department of Homeland Security spends more than half of their budget on PMCs. For better or for worse, military and security activities are rapidly being privatised. PMCs are increasingly becoming involved in combat-related situations despite their supposedly limited authorisations and clearly defined mandate.
While the Federal Court ruling may give many a sense of relief, it does raise a few questions regarding the status of PMCs under international law. One of the main points of contention in the case was the question of jurisdiction. Note that the case was tried in the US, not in Iraq, where the incident happened. This was due to the contractors’ immunity from Iraqi jurisdiction, thanks to a negotiated status with Iraq. Jurisdiction of the Federal Court was dependent on the Military Extraterritorial Jurisdiction Act of 2000 (MEJA), which gave it jurisdiction over personnel that were contracted to the Department of Defense (DoD).
In this respect, this case may set a precedent for a broader interpretation of the MEJA. When the incident happened, Blackwater was contracted to the State Department— a detail that nearly caused the entire case to be thrown out of court. However, prosecutors were able to argue that the actions of these State Department contractors were in support of the wider operations of the DoD.
Nevertheless, I would argue that there is a legal loophole that can still be exploited by PMCs. The DoD is by no means the sole employer of PMCs. While prosecutors were able to argue in favour of extraterritorial jurisdiction in this case, they ultimately still relied on the connection with the DoD for proof of jurisdiction. For the MEJA to be effective, and to avoid the burden of legal footwork on the part of prosecutors in future cases, this loophole should be eliminated as soon as possible. Jurisdiction of the MEJA should be expanded to include personnel who are contracted to any group operating in the capacity of the government.
Such a definition is already being called for in the 2008 Montreux Document, which was specifically aimed at addressing the issue of responsibility over PMCs. It states that violations of international humanitarian law (jus in bello) and human rights law (laws relating the obligations of the state to the individual), are attributable to Contracting States if the groups concerned are ‘a) incorporated by the State into their regular armed forces; b) members of organised armed forces… under a command responsible to the State; c) empower to exercise elements of governmental authority; d) in fact acting on the instruction of the state or under its direction or control’
The Montreux document is no doubt a step in the right direction. However, there are still two concerns that need to be addressed. First, the treaty is only binding to its signatories. So far, only 17 countries have signed the Montreux Document— while it does include major countries such as the US, UK, China, France, and Germany, it still represents a minority in the wider international system. More specifically, countries such as Columbia and Mexico, where PMCs are involved both in aid of and against drug cartels, are absent.
Second, ultimate responsibility for prosecution still lies with the state. However, the US is an exception in the sense that it has specific legislation dealing with the activities of PMCs. According to a study by Abrisketa: ‘State legislation does not refer to the activities of private security companies, or, if it does, it is inadequate’. Furthermore states define PMCs in different ways— some according to Additional Protocol I of the Geneva Convention (1977), and some only by the organisation’s desire for private gain. These two factors demonstrate that current domestic legislation is not adequate for implementing the Montreux Document in its intended manner.
When domestic legislation fails, international law is for the moment ill-equipped to step in. There is no legislation giving organisations such as the ICC or the ICJ direct jurisdiction over the activities of PMCs. In the former, individuals from PMCs would have to perpetrate large scale violations of international humanitarian law and human rights law in order for the ICC to have jurisdiction. This is unlikely as most alleged offences are small in scale. The situation is even trickier in the ICJ— prosecutors would have to prove that the PMC’s direct connection with the state, to the extent of receiving material support from the latter. Even then, the ICJ would only be able to draw on customary international law, and not treaty law, if the defendant does not accept the jurisdiction of the Court.
The Blackwater case raises many questions, and highlights current loopholes in international and domestic legislation. In the short run, states should adopt legislation that deals specifically with PMCs, and build on the successes of the Montreux Document. As much as I enjoy the franchise, I do not want Call of Duty to become reality.
 Article 7 Montreux Document
 Abrisketa 8
 Based on past cases such as Nicaragua v USA ICJ Rep 14