And, sir, we fired him, we fined him, but we as a private organization can’t do any more. We can’t flog him, we can’t incarcerate him. That’s up to the Justice Department. We are not empowered to enforce U.S. law. -Erik Prince Testimony Before Congress, 2007
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This is an excellent little article below, and the quote up top kind of sets the stage for the problem that needs solving. I should note that this is not just a problem for PMC’s in Iraq and Afghanistan, but for NGO’s and the UN as well. So while reading this, understand that the lessons learned here could also apply to those other organizations out there that work in foreign lands and depend upon contractors and their subcontractors to get work done. Governments that depend on the services of these organizations need to figure this stuff out as well, because they stand to lose much if their mission is hindered or threatened by the actions of contractors and subcontractors.
As you can see with Erik Prince’s famous testimony, that pretty much says it all. I have yet to work for a company that had it’s own prison or set of laws to abide by. The laws we were to follow were that of our host nation, or the laws applied by whatever nation the customer we worked for belonged to. Each contractor’s country has laws that could also be brought into the mix. But when it comes to actually applying the rule of law to contractors who do wrong, that is when things get all screwed up. It gets really screwed up, when a contracting company uses ‘subcontractors’, because that adds even more confusion.
So really, like Mr. Prince said, all companies can do is fire that individual, fine that individual, and notify the customer that contracted their services that this happened. Companies in Iraq and Afghanistan also have a difficult choice between wether or not they should tell the police of those countries. Especially during the different phases of the war or if that country is a failed state.
In the early phases of the wars, most companies would not hand over their employees to weak or failing governments for prosecution. In a way, that would be a worse crime than whatever that contractor did. It does happen though. An example of that is the corrupt justice system in Afghanistan that is currently holding contractors and giving them punishments that are far more extreme than the supposed crime they committed. Or falsely arresting contractors and extorting them. With that kind of twisted legal system, why would a company hand over a contractor or subcontractor to such a system? (unless forced to because of some political mess created by the customer a company is serving)
Which goes back to the customer. In today’s war, the customer has usually been the US government. So why haven’t DoD, DoS, or USAID applied any kind of rule of law or punishment to contractors and subcontractors in the course of the war? That is a great question, and I haven’t a clue why the media and critics continue to blame companies for the lack of action on the part of these customers. It’s as if government has no responsibility in this matter, and the companies continue to be the fall guy. But companies continue to take contracts because no one wants to solve the problem or accept responsibility for any criminal outcomes do to a lack of rules/laws. See how the cycle works? lol
But of course NGO’s and the UN are in the same boat as PMC’s. They too operate in foreign lands, and they hire contractors and their subcontractors and have to face the same legal issues as well. But they are the ‘good guys’ and they get no mention at all by the critics? Pfftt. That is why all parties in this discussion could learn from each other as to the best way forward.
One solution is for countries to start issuing licenses or letters of marque again. I look at these documents as a connection between the law makers of a country, and the private industry or organizations that want to do work for those countries either locally or abroad. For this to properly work, two licenses would be needed–one from the host nation, and one from the parent nation of that company or organization. If the host nation is a failed state or in the middle of a war, then all that would be required is one license from the country paying the bills. And really, one license is all that is needed, but hey, if the customer wants you to have a license from the other country you are operating in (depending on the state of said country), then so be it.
For NGO’s, they would be issued licenses by the countries they wish to help. It would be a similar to a SOFA that is signed between two nations for militaries. Call it a SONA or status of NGO’s agreement if you will. I just call it a license to operate in that country, or letter of marque. This license would be a set of rules and laws that an NGO could look to as guidance, and it would also be something they could pass on to their workforce (contractors/subcontractors) as to what the deal is. Of course in this system of operation, all who are involved must know what they are getting themselves into when they sign on as a contractor. That means the local national, expat, or third country national work force would have to know the rules and laws that apply to them directly. For each type of contractor, the license should also state what applies to them as well. Of course a local national already falls under the laws of that country, but the license can dictate what the company or organization has to do in the case of contractor wrong doing.
As for the UN, perhaps they could be the issuer of a LoM as well? If they are truly representative of nations throughout the world, then a LoM from this type of organization should come from the blessings of all of these nations. Perhaps the security council would be the issuing authority, and before any contractor could be used by the UN, they must have this license (and a license from the host nation if the council deems necessary)? Of course within the language of the license would be the outline as to what would be done to a contractor or subcontractor if they committed minor offenses, all the way up to murder or rape?
The other reason why I like this licensing system, is that this is a direct connection between the law makers of countries, and private industries/organizations. I envision lawyers from both a company/organization and a government going into a room, and hashing out exactly the terms of the license. A logical outcome from that discussion would be a set of laws that would satisfy the requirements of that country and allow companies/organizations to provide a service.
I would also put expiration dates on a license or mechanisms that would automatically expire the license, just as a means of control. This was crucial to early usage of privateers when the Letter of Marque was used back in the day. The modern use of such a thing should also have contract limits and other stop gaps so things can be reevaluated and adjusted as conflicts and missions change.
What is interesting about this system, is that at least some rule of law can be decided upon between two parties and the contractors and subcontractors that are hired under such a system would know exactly what would happen to them if they broke the laws outlined within the license. The license negotiations could also have military lawyers involved as well, so that the strategies used by military planners will not be hindered by the terms of the license. Get all the legal guys in a room, and get it done. Millions if not billions of dollars are at stake, the reputation and objectives of all involved are on the line, and the safety and health of all involved could all depend upon the rules and laws laid down by such licenses. Other than that, I don’t know of much else that countries and companies/organizations could agree upon to get the job done and insure some rule of law is applied to the process?
Another component of the license that would be very important, is verification. A trust by verify system that ensures companies and organizations are actually abiding by the terms of the license/laws. That would require monitors, which seems to be what everyone is screaming about for much of today’s contracting issues already. So the party issuing the license, would have it in their best interest to insure monitors are available per contract/subcontract to insure everything is done right.
Violations of the laws and rules within the license, would also be defined by the license itself. If a contractor or subcontractor wants to work for that NGO, PMC, etc., then they are also falling under the terms of that license. That means you could now be a criminal to whomever issued the license, if you violate the law you in signed on to follow. Letters of Marque are mechanisms that other countries would have to recognize, much like countries recognize each other’s borders or governments, and basically these companies and organizations would be flying the flag of customers, and abiding by the laws/rules set forth in the license. As a contractor, you play under those laws until you are done with the contract. If the license was set up properly, the scenario spelled out by Mr. Prince would then have one more element, and that is the requirement of the company to abide by the license/laws.
But like I have said before, these issues of the rule of law would be decided upon by the law makers of countries and the lawyers of companies and organizations through meetings and negotiations. Just some food for thought, and I am sure there are other ideas of the way forward as well.
By the way, it is funny how I continue to go back to this very simplistic licensing system that nations used to use for hundreds of years. I laugh because we are expending so much energy in trying to ‘reinvent the wheel’ when it comes to this stuff, and all we have to do is look to the past for the lessons learned. –Matt
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The Struggle to Police Foreign Subcontractors in Iraq and Afghanistan
Billions at Stake, but U.S. Investigators Stymied by Murky Rules, Enforcement Obstacles
By Nick Schwellenbach and Lagan Sebert
August 29, 2010
To win hearts and minds in Afghanistan and Iraq, military experts want U.S. companies to contract with local firms for a variety of tasks like trucking, feeding troops, and providing security. The U.S. government’s “Afghan First” and “Iraqi First” initiatives increasingly seek to rely on local contractors, often through subcontracts, in part to stimulate their local economies.