Modern Condottieri in Iraq: Privatizing War from the Perspective of International and Human Rights Law

Introduction

The publication in April 2004 of the shocking photos depicting Iraqi prisoners that had allegedly been abused by U.S. military personnel took world opinion by surprise. The question was raised how this could have happened and whether U.S. military personnel were properly trained in the basic rules of international humanitarian law and human rights. The surprise became even greater after it became known that not only military personnel had been involved in the abuse, but also contractors of private military and security companies. As a way of compensating for the relatively small numbers of regular army personnel involved with handling and processing detainees, the U.S. Army apparently contracted two private military and security companies to provide support for translation and interrogation duties. The presence of private military and security companies (PMSCs) in Iraq had already been the focus of discussion following the shocking pictures of the burnt bodies of four PMSC contractors who had been ambushed by insurgent militia in the troubled city of Falluja while escorting a convoy at the beginning of April 2004. The apparent complicity of the personnel of PMSCs in the abuse scandal at Abu Ghraib fueled further controversy about the wisdom of utilizing their services. Almost two years after the Abu Ghraib incident was widely discussed in the media, there is no clear picture regarding the role of PMSC personnel in the abuse scandal or their potential responsibility for the human rights violations that took place.

The use of PMSCs in military conflicts is a phenomenon that, in spite of being current, is not new. Employees of PMSCs such as Sandline International, a British company that recently ceased its activities, and MPRI, an American corporation providing a variety of security- and military-related services, have been employed in various armed conflicts around the world with varying degrees of success. The large-scale use of these companies during and following the invasion of Iraq in 2003 has, however, focused the world's attention on this controversial topic thus leading to the question whether war is being privatized.

The delegation or contracting out of what would appear to be "typical" or essential state tasks and activities (the use of force in times of war, the provision of security, and the custody and interrogation of prisoners of war and common prisoners) to private companies is already contentious. This approach becomes even more questionable when it appears that these companies, or their employees, are responsible for, or have been involved in, the violation of rules of international humanitarian law and human rights. To what extent is the state responsible for the conduct of employees of these companies? Are these companies legally accountable for these actions under international law? What are the remedies available to the victims of abuses perpetrated by these companies or their employees? This last question is of special importance due to the fact that the Iraqi judicial system is probably not yet in the position to function normally to provide an objective, impartial, quick, and efficient way of adjudicating disputes. Moreover, the United States has successfully negotiated and obtained immunity for its citizens, including private contractors, against criminal prosecution in Iraq for their activities in that country.¹

This article attempts to clarify these questions and provide an overview of the relevant applicable rules of international law. Following a general overview of the privatization of military and security services and tasks, this article will analyze whether the use of PMSCs is contrary to international law. It will then describe the presence of these companies in Iraq, including the alleged violations of international humanitarian law and human rights in Abu Ghraib prison. This will be followed by an attempt to examine the responsibility of the United States for violations committed by PMSC contractors. Finally, an analysis of the available remedies for the victims of these abuses will be provided in light of the international legal obligations of the United States.

I. Is War Being Privatized?

Can contracting out military tasks to private companies be considered...