Operation Iraqi Freedom – The challenge of Private ...



Operation Iraqi Freedom – The challenge of Private Security and Military CompaniesTom HooperAs a conflict, the 2003 Iraq invasion saw a consistent shift not only in political trends but also in the trends of warfare and its conduct. With the Revolution in Military Affairs pushing the US military approach to conflict even further from the mass casualties, and Operation Desert Storm being the late 20th Century incarnation of this, Operation Iraqi Freedom was planned to be a low casualty war. The war however became more complex, as the “Mission Accomplished” banner behind Bush Jr. on the USS Abraham Lincoln became seen as a statement of pure irony, the desire to keep US casualties down led to changes in who was doing what in Iraq. Increasingly roles traditionally fulfilled by regular military forces were contracted out to private companies, leading to some difficult legal and ethical questions.On 16th September 2007 in Baghdad a convoy carrying US officials was travelling through the Mansour district, protected not by the US military but by employees of the private and military security company (PMSC) Blackwater (now re-branded as Academi), which upon reaching the Nisour Square intersection opened fire in response to a perceived threat in order to protect their client. There are still conflicting reports on exactly what happened, it is known that fourteen civilians were killed and at least seventeen wounded. The perceived threat that the contractors had responded to was never identified and whilst most of them, and the company, maintains that they were firing in response to an authentic threat, the Iraqi government maintains that the contractors opened fire upon non-combatants without provocation. This incident represents a key legal challenge regarding non-military combatants and accountability in war-zones when operating beside conventional state forces.At the time there was significant ambiguity regarding the accountability of PMSC contractors in Iraq and who they answered to legally. The authority in the country, the Coalition Provisional Authority (CPA) dictated through CPA Order 17 Section 2 that “Unless provided otherwise herein, the MNF, the CPA, Foreign Liaison Missions, their Personnel, property, funds and assets, and all International Consultants shall be immune from Iraqi legal process.” Therefore, under the CPA these contractors were immune from the legal process of the host state, and the complications continue as the Blackwater men were not soldiers, and were therefore also immune from the Uniform Military Code of Justice. This unaccountability combined with a general attitude of ambivalence by many contractors, including Blackwater, led to many of the least savoury incidents of the entire Iraq conflict: Examples of these incidents begin with March 2004 where four under-equipped Blackwater employees were killed and their corpses hung from a bridge in Fallujah. This incident prompted Operation Vigilant Resolve, a massive United States Marine Corps (USMC) assault on the city that swept away insurgent threats and civilian population alike in what investigative journalist Jeremy Scahill characterised as a “collective punishment” for the Blackwater deaths. There were also instances of contractor involvement in the abuse cases at Abu Ghraib, only unlike the military personnel involved these contractors were not charged and instead the company settled the case for a relatively meagre sum of $5m. A case of contractor immunity that was neither settled by the company, nor resulted in a conviction, was that of intoxicated Blackwater employee Andrew Moonen killing an Iraqi bodyguard. This case was kept quiet in Iraq to limit public opinion damage and the US Attorney's Office did not pursue the case or charge Moonen. Despite the history of the situation regarding PMSC accountability in Iraq there is change as legal bodies catch-up with a complex and fluid situation. October 2014 saw the conviction of four of the Blackwater employees involved in the Nisour Square incident. This represents a significant step with regards to the US legal system at least, especially as the last attempt at convicting these men was thrown out by the judge. Other nation states have attempted to stamp out problematic mercenary activity, but have floundered with issues of accountability for crimes beyond state-authority, for example South Africa. The move by the US to convict its private citizens for actions outside of US borders under title 18, section 3238 of the US code is a positive move in increasing accountability among PMSCs. This move is recognised by the UN's Working Group on the use of mercenaries, however in spite of this they remain thoroughly dedicated to the establishment of international law in an attempt to bypass the 7 years of difficulties that it took to get this case into a US court. Whilst the progress of the UN Working group continues and these convictions represent a shift in US attitudes to contractor liability overseas, there are still significant legal hurdles to overcome in both cases. Hopefully these measures will at least see a reduction in the cavalier contractor attitudes that prevailed throughout the Iraq conflict and led to unpleasant cases such as those examined or even the threatening of US government investigators. If the US were to lead the way with legal attitudes towards international PMSC activity, then there's potential for other states to follow suit and/or work with the UN, other states and the industry to establish and enforce international regulation. There have also been moves towards PSMC self-regulation, with the establishment of the Quality of Private Security Company Operations – Requirements for Guidance (ANSI/ASIS PSC.1-2012), a series of auditable criteria for PMSCs. On 1st September 2015 Academi was awarded certification under this scheme, perhaps representing an improvement of attitudes within the company, or merely a desire to follow the economic incentives of self-regulatory certification. With the multiple avenues of regulation now taking form, there is some hope that the disasters of PMSC involvement in conflicts like Iraq can be avoided in the future. ................
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