Take the King's Shilling, Accept the King's Regulation

Since Blackwater is in the news, by way of finally finding a buyer, it provides a convenient segue to a recently published paper. It is "Corporations that Kill: Prosecuting Blackwater" by David Kinley & Odette Murray, who are both faculty members at the University of Sydney Law School.

This is actually a chapter in the forthcoming book Shoot to Kill: The Law Governing the Use of Lethal Force in Context (Hart Publishing, Oxford).

The paper starts off with the shooting of 17 civilian Iraqis in Baghdad's Nisour Square in September 2007. Just when you thought there was nothing more that could be written about it the authors write:

Fourteen months later, in a somewhat sensational factual statement entered in the US District Court for the District of Columbia in support of a guilty plea to manslaughter and attempted murder by Jeremy Ridgeway, one of the Blackwater employees involved in the incident, it was stated that: (i) the convoy "had not been authorized to depart from the International Zone [aka the 'Green Zone']" on the day in question, and that (ii) in any case, Ridgeway and all the other members of the Blackwater convoy were well aware that their mission in the country was "defensive in nature" and that under the company's operational mandate employees were "not permitted to engage in offensive military actions, use the military tactic known as 'suppressive fire', or exercise police powers."

Whoa! How come the reporters on the legal beat missed reporting those facts, which were in "Factual Proffer in USA v. Ridgeway, supra note 1, paras. 5, 7." ?

But that detail is not the main thrust of the paper. Most of the public debate over that day has been whether the shootings were justified or unjustified. But the authors have a wider, and in their view, more compelling point to make.

For a start, the affair exposed the simmering rift between private security contractors and the regular military. Many in the military resent the fact that if they had behaved in this way and with these consequences, they would likely be court-martialed. They are also keenly aware that, as a result of incidents like this, the troops' efforts to secure peace and security by trying to win the hearts and minds of the Iraqi people is a whole lot harder. At the very least, the Nisour Square massacre gave the impression, widely and loudly voiced by ordinary Iraqis as well as community leaders and government officials, of "a cheapening of Iraqi blood".

Certainly, this strength of feeling was widely and deeply felt. A few months after the incident, the first-named author was doing some work with a contingent of senior Iraqi officials from the nascent Iraqi Human Rights Commission as well as other Ministries and government agencies engaged in an AusAID training program conducted in Jordan and Australia. The fact that a private security firm could do such a thing - and apparently get away with it - was a source of palpable resentment, even among these admitted moderates. It added to the bitterness already engendered by years of bloodshed and oppression.

The authors spend most of the rest of the paper reviewing the inadequacies of both national and international law, which I won't rehash here. But there are a few sections which merit particular note. First is this:

As corporations, PMCs themselves - like all transnational business entities - operate within, between and betwixt home and host state laws, rather than under any specific international legal regime. The recent international initiatives (including those of the Special Representative of the Secretary-General, John Ruggie) to address the potential lacunae this creates in terms of corporate responsibility for human rights infringements have taken little notice of the peculiarities of PMCs, beyond the role they play as security providers hired by extractive industry corporations or in reference to the process that resulted in the Montreux Document on Private Military and Security Companies ('the Montreux document').

Also, given the calls we have seen over the years for greater industry self-regulation there is this point:

Within the field of corporations and human rights the soft law approach has in practice and (presently) in rhetoric been preferred over hard law. It is therefore in some respects true to form that we look to the softer options; that is, to try to encourage PMCs themselves to accept voluntarily some degree of (self-) regulation, rather than trying to force them to do so, which may result more in the sound of many well-meaning heads bashing against walls than anything else. Yet here too, PMCs' actions are less than encouraging. For example, Blackwater withdrew from the industry's peak body (the International Peace Operations Association (IPOA)) shortly after the Nisour Square incident not only to avoid scrutiny under the body's code of conduct standards, but also, it is claimed, because other member companies privately pressured Blackwater to withdraw from IPOA to avoid a review that would damage the reputation of all IPOA member companies.

Now, in fairness, it is true that many, perhaps even most, if not all, private security companies accept the need for governmental regulation. Given that some form of it is written into every contract they sign with a government agency they can't avoid it. But this is a two way street. Governments must be as diligent in exercising regulation as they are in requiring companies to accept it. As the authors conclude:

But for reasons of contractual relations, the nature of the activities and, above all, jurisdictional authority, it is states, individually and collectively, that must shoulder the primary burden. In this 'business sector' above all others, states have a responsibility to regulate to require compliance. It is neither enough to regulate urging compliance in a typical soft law form, nor is it tenable to rely on the possibility that desirable hard law approaches by states might be aided by an international legal initiative that sets the human rights responsibilities of corporations upon which all states (the weak and the strong) can draw or be measured against in their own separate efforts. It is states that must promote and institute regimes that secure PMC accountability, drawing on international and domestic apparatus, on mandatory and voluntary initiatives, and on private and public law principles.