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PMC Sexual Violence: It's Still a Problem

Liability depended on a variety of factors, including the laws of the country where the crime took place and the possible existence of an agreement between U.S. military officials and the government of the host country.
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In one of those rare, "perfect storm" of coincidences, three events converge to provide the topic for this column. First, the latest issue of the in-house magazine, the arriviste named "Journal of International Peace Operations," published by ISOA, a PMSC trade group, is devoted to the topic of "Women & International Security."

Since ISOA, like any good trade group, generally tries to dismiss any criticism of its member companies, as being the ravings of liberal hacks in pursuit of a "spicy merc" story, it is interesting to note that the very first article in the issue states:

Companies need to adopt institutional measures to prevent and address cases of misconduct. Appropriate gender training for PMSC personnel, alongside training in international humanitarian law and human rights law - as recommended by the Montreux Document on PMSCs -will help to create a more gender-aware institution, thus preventing human rights abuses and reputation loss. Having clear rules of behaviour and mechanisms to punish individuals responsible for human rights violations will benefit the host populations, individual companies and the industry as a whole.

Second, the recent release in the UK of last year's movie, The Whistleblower, a fictionalized version of the involvement of DynCorp contractors in sex trafficking and slavery in Bosnia back in the nineties, serves to remind us that despite DynCorp's rhetoric over the subsequent years not nearly enough has changed.

For those whose memories have faded, employees of DynCorp were accused of buying and keeping women and girls as young as 12 years old in sexual slavery in Bosnia. Perhaps even more shocking is that none of those involved have ever been held accountable within a court of law. The United States subsequently awarded DynCorp a new contract worth nearly $250 million to provide training to the developing Iraqi police force, even though the company's immediate reaction to reports of the crimes was to fire the whistle-blowers.

As an article in the Jan. 29, Sunday Telegraph noted:

Most disappointing of all was what happened next: several men were sent home, but none was punished further. No future employer will know what these men were guilty of. I asked DynCorp if its guidelines had become more stringent since 2001 and was sent its code of ethics. It states that 'engaging in or supporting any trafficking in persons [...] is prohibited. Any person who violates this standard or fails to report violations of this standard shall be subject to disciplinary action, up to and including termination of employment.' So nothing has changed.

By the way, from a strictly observational viewpoint, given other problems DynCorp has had over the years since that took place, from dancing boys in Afghanistan to the recent settling of an EEOC suit regarding sexual harassment of one of its workers in Iraq, DynCorp is the Energizer Bunny of sexual harassment; it just keeps giving and giving and giving; doubtlessly reporters around the world are grateful.

Third and most importantly, is an article published late last year in the University of Illinois Law Review. It details and analyzes the possibility of responding to PMC sexual violence against civilians outside of war zones under U.S. military law, U.S. criminal law, criminal law where the crime occurs, International Human Rights Law, International Criminal Law, and the U.S. Alien Tort Statute (ATS).

In her note, "The Absence of Justice: Private Military Contractors, Sexual Assault, And the U.S. Government's Policy Of Indifference," the author, Angela Snell, determines that:

these methods, as they stand now, are inadequate because of problems of limited jurisdiction, U.S. reluctance to prosecute contractors and willingness to protect U.S. nationals from prosecution abroad, requirements that violence be widespread or systematic before triggering international prosecution, and the absence of state liability for the actions of private individuals, unless the state condones the activities.

Snell notes that at the time of the Bosnia incident, the means available for holding PMCs accountable for crimes committed abroad were either nonexistent or completely inadequate to the task of bringing to justice private actors acting on behalf of the U.S. government abroad. Liability depended on a variety of factors, including the laws of the country where the crime took place and the possible existence of an agreement between U.S. military officials and the government of the host country. If committed today, these crimes could face sanction only if committed within the context of war.

One of Snell's contentions is bound to raise some eyebrows. She argues that an unexplored connection between PMC staff and the U.S. military suggests liability for these crimes should extend beyond the individual perpetrator to the U.S. government itself.

Throughout history, women have been treated as spoils of war; wherever there has been military occupation, incidents of rape and sexual assault have been prevalent. Participation by U.S. military personnel in the sexual exploitation of female civilians through prostitution and rape has been well documented. This legacy is now at risk of frightful expansion as government contractors, paid for by U.S. tax dollars, commit sex crimes with impunity throughout the world.

The boards, corporate officers, and rank and file of PMC firms are composed of former military personnel who are lured by compensation greatly exceeding that of U.S. soldiers. During their time in the U.S. military, these individuals learned to view women as the enemy "other," to be conquered and subdued. This Note will show that sex-based crimes committed by PMCs are thus attributable to lessons learned in the U.S. military regarding women. Stationed throughout the world, PMCs now operate, in effect, with legal immunity while the U.S. government sits idly by.

Now we might pause to consider that it usually at this point that some PMC defenders will argue that this is not such a big problem anymore; not because it doesn't happen, even they don't have the chutzpah to argue that. Instead they argue there are now several new laws on the books which can be used to prosecute any offenders.

Those who are interested can read Snell's article to find out about the flaws in such laws. But consider just this one illustration of the loopholes:

In 2006, the U.S. government announced a rule to implement the Trafficking Victims Protection Act of 2000 (TVPA), which requires government agencies to use contract clauses that compel contractors to develop policies to ensure their employees will not engage in human trafficking or prostitution At the signing of the TVPA, President George W. Bush asserted:

We cannot put the criminals out of business until we also confront the problem of demand. Those who pay for the chance to sexually abuse children and teenage girls must be held to account. So we'll investigate and prosecute the customers, the unscrupulous adults who prey on the young and innocent.

Unfortunately, these strong words were followed by weak accountability methods. The only mechanism for enforcement relies on contractor self-reports. Specifically, the implementing regulations require that a contractor immediately inform its contracting officer of "any information it receives from any source (including host country law enforcement) that alleges a contractor employee, subcontractor, or subcontractor employee has engaged in conduct that violates this policy" and inform its contracting officer of "any actions taken against contractor employees, subcontractors, or subcontractor employees pursuant to this clause." A critic of the rule observed,

There appear to be no true means of enforcement. Contractors essentially have been asked to turn themselves in upon learning that an employee has violated this policy - even at the risk of contract termination, suspension and debarment. Thus, while the FAR and DFARS ban on human trafficking is a warning to contractors that such activities are expressly prohibited, it is doubtful that the regulations will accomplish their laudable objectives, since contractors are unlikely to self-report.

In addition, the regulation does not authorize government agencies to conduct audits on contractors, increasing the likelihood that the requirements will be ignored.

What should be done in the future? Snell calls for a three-fold solution: First, victims should file complaints against the United States in international courts, under the theory that the United States is liable for its contractors' acts, because it has condoned them by failing to punish them and even actively discouraging their prosecution; second, victims should sue individual perpetrators in the United States under the ATS, both to compensate victims and to deter contractors from future violence; third, and finally, the United States must act to close the jurisdictional gap that allows PMCs to escape prosecution by signing and supporting international treaties, developing its own stricter system of criminal liability for PMCs, and using contract mechanisms to enforce standards of conduct for PMCs.

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