I would love to extend my gratitude to my classmates, friends and family for their support in the process of coming up with this project. Moral, emotional and material support was necessary in keeping up with the bulky nature of work. To my instructor and the entire faculty, I thank you for the intellectual and technical guidance that made it possible to come up with this research. May God bless you abundantly for all the help.
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The completed study aimed at developing a regulatory framework for Private Security Contractors (PSCs) operating in Iraq. PSCs have been long deployed in wars due to security vacuums, limitation of military capacity, political reasons and cost efficiency. In the process, many challenges arise including conflict of interests, unprofessional conduct, victimization of PSCs and lack of clarity in their activities. The objectives of the study were thus to understand the existing regulatory framework for PSCs and propose a more encompassing framework that addresses the present challenges. The study was qualitative, relying on published research on the topic. The results indicated that there indeed existed a regulatory framework, albeit a weak and highly flawed one. In its place, there was proposed a new framework that was based on four major themes: Congress, legal framework, DoD strategy and self regulation. The Congress was the main factor in the framework, enacting new laws to buttress the existing legal framework, solving epistemological issues regarding PSCs and exercing direct oversight over the DoD and by extension, the PSCs. Future research should address whether PSCs can undermine the power of the state, as well as conflicts of interests following the work of PSCs.
The presence of private security contractors (PSCs) in major conflicts is longstanding. Their involvement is often necessitated by a number of factors including security vacuums, limitation of military capacity, political reasons and cost efficiency (McFate 2017). Despite the critical role played by private military contractors, their work comes with a flurry of challenges including opacity and unaccountability, impunity, conflict of interest and disputes with law enforcement agencies in host nations (Kruck 2014). According to McFate (2017), the US heavily relied on PSCs in their Iraq operation where they formed half of the troops. The current research shall therefore propose a regulatory framework for private security contractors in Iraq to overcome traditional and emerging challenges.
The research is important in resolving the controversies associated with private security contracting. Policy makers and political leaders have for long complained about the opacity and lack of transparency associated with PSCs (Petersohn 2013). Private security contractors have also been accused of breaking local and international laws by engaging in acts of torture and assassinations (Carmola 2010). A regulatory framework from the study shall guarantee legal compliance. The proposed research shall also be of great utility to private security contractors. The lack of clear and structured regulation has oftentimes exposed PSCs to political and other forms of victimization. The research paper shall therefore be of equal importance to political and policy decision makers as well as the PSCs. Research on PSCs is also scarce, thus the paper forms an important foundation for further research in the thematic area.
The research questions are addressed through a qualitative approach. The dissertation begins with a short introduction, followed by literature review, methodology, results and discussion and finally, the conclusion.
This paper is based on two essential theories: The State’s monopoly of violence and the agency theory.
Social theorists such as Thomas Hobbes and Jean Jacques Rousseau have demonstrated the crux of the state’s monopoly in the legitimate use of violence in what has been famously been known as the social contract theory. The latter assumes that citizens and governments exist in an informal contract with exclusive responsibilities (Jessop 1990). The citizens in the social contract give up their right to violence in return for state protection. As such, the social contract theory births the current theory of the state’s monopoly of legitimate force. The only legitimate use of violence that remains within the civilian population is in the case of self – defense (Staniland 2015). This understanding would be impossible without the Weberian definition of the state – Max Weber argued that the only way the state can fulfill its central task is by maintaining an exclusive use of physical force (Jessop 1990).
The state’s monopoly of legitimate use of violence explains why Private Security Contractors (PSCs) are controversial and hence in need of a regulatory framework. PSCs are non-state actors who infringe on the state’s monopoly of using legitimate force. Noteworthy, Singer (2008) points out that non-state actors of violence have a tendency of becoming powers by themselves and yielding more authority than local institutions. This calls for a scrutiny of their operations and proper regulation. The public is also likely to have a negative attitude towards PSCs due to the notion that they infringe on the social contract. The present study is therefore highly justified to the extent that it proposes a regulatory framework for PSCs that shall in turn secure the authority and legitimacy of the state.
The agency theory has been extensively argued across different disciplines to explain the problems that arise in agency relationships. An agency relationship arises when and individual or a group of persons (known as the principals) hire one or more persons (known as the agents) to perform specified duties on their behalf (Eisenhardt 1989). The agents in this case are delegated with decision making authority and full powers to represent the principals. In most cases, these relationships are often not harmonious, given the self interest problem of agents. It has been observed that in many cases agents may pursue self-interest which would be in conflict with the interests of the principals (Bosse and Phillips 2016). This calls for regulation to identify and offset any possible conflicts in interests.
The agency theory justifies the objectives of the present study namely to scrutinize existing regulation and present a cogent regulatory framework for PSCs. Eisenhardt (1989) noted that conflicts of interests were inevitable in agency relationships and thus the only way around them is to have clear terms of engagement and systematic audits. The present study is therefore justified on the premise of the agency theory which predicts conflicts of interests between the principals and the agents. A regulatory framework is necessary in order to streamline the relationship between the US government and the PSCs.
There has been a longstanding interest by scholars, politicians and policymakers to understand Private Military and Security Contractors (PMSCs). According to Carmola (2010), the understanding of these entities has gained controversy due to two essential problems. First, PMSCs defy straightforward categorization and we cannot put a clear face on them. It is unclear what they do and who they really are. A good example of this conundrum has been presented by the author with respect to the deployment of private security contractors in Iraq. Five years into the war, a senate committee could not tell with certainty the number of contractors, who they employed and what they were doing alongside the military. Different agencies attempted to give numbers which were not only contradictory, but added into the mystery on the who and what of private security contracting. In addition, the Congressional Budget Office in 2008 could only give estimates of the amount of money paid to private security contracting. The figure was placed between $15 billion and $ 20 billion, in what was termed as the best attempt yet to explain the controversy of private security contracting (Carmola 2010). This makes it clear that regulation of PSCs is highly problematic.
Knuck (2014) added that a qualitative description of PMSCs was impossible. The companies were arbitrarily dissolved, their ownership was unclear and the names of the enlisted soldiers remained confidential. The latter could only be identified with service numbers which was insufficient for making any genuine follow up regarding any issue. An army Colonel in the Iraqi war explained how difficult it was to understand or identify private security contractors, noting that some did not even have military training or experience (Knuck 2014). They would be found handling weapons improperly, displaying a bad attitude, with no uniforms or name tags and driving SUVs. Their identity was summed as highly protean- like the amoeba. The author noted that PSCs change in shape and structure, come and leave without notice. The situation indicates that regulation of PSCs was highly problematic from the fundamental levels.
There are other challenges in laying out simple rules of identification for private security contractors. Cole and Vermeltfoort (2018) explains the need to adopt the umbrella term “Private Military and Security Contractors” (PMSCs) due to the difficulty of separating private military firms from those that identify as “security firms” according to function. Both categories lack clear job descriptions or structures and further lack a narrative to explain what they do. Their striking similarities include the lack of clear lines of authority- there is no explicit statement on who is in charge, the main contractor and the sub contractor and hence who bears accountability in different scenarios (Cole and Vermeltfoort 2018). Initially, such companies were known as private military firms (PMFs) owing to their enlisting of former soldiers. However, they resisted this moniker, instead preferring the name Private Security Companies (PSCs). The resistance to the term “military” was a deliberate attempt to downplay their offensive military abilities given the possible political implications of the same. Carmola (2010) presents the phrase “PMSCs” as an umbrella term reached on as a compromise to refer to such private security companies. Therefore, the first problem with private security contractors is the lack of a clear definition, identity and/or boundaries. As has been demonstrated, it has been problematic to even allocate them a suitable name. A regulatory framework should begin with clear definition of terms and delineation of functions of PSCs.
The second problem facing PMSCs is the negative public and stakeholder perception. Due to the noted history of controversy, no matter what they do, PSCs are deemed to be corrupt, undisciplined and vehicles of impunity (Nemeth 2017a). Private security companies are a throwback of what used to be known as mercenaries and pirates, unleashing violence on behalf of governments and corporations. These companies espouse the same challenges that were inherent of mercenaries – lack of discipline and reliability (Nemeth 2017a). Singer (2008) quotes Frederick the Great terming private security contractors as lacking in loyalty, discipline, team spirit or courage. Their workforce endangered missions with their cowboy attitude of bravado, besides being expensive and unreliable. With such a negative reputation, any attempt to legitimize them has been met with resistance on the suspicion that they are corrupt and generally inappropriate for deployment (Singer 2008). The negative perceptions have been worsened by their own actions such as delivering substandard work, dishonoring contracts and continued operation in opacity. Being under a clear regulatory framework may come in handy in dispelling the negative image of PSCs.
However, it has been demonstrated widely that the misconduct of private security companies is largely exaggerated, and in essence no equivalence can be made to mercenaries of the past (Singer 2008). Despite this, these companies agonizingly continue to be referred to as mercenaries in many different settings. A notable example is given by Leander (2005) highlighting such references by the United Nations Human Rights Commission working group on PMSCs. The working group referred to private security contractors as mercenaries and went ahead to resist calls to replace the terminology. This was the height of negative perception of private security contractors by stakeholder groups given the international stature of the UN agency. These notions continue to shape formal and informal discourses around private security contracting across the globe. It is necessary to have a regulatory framework in order to dispel legitimate and unfair representations of PSCs as negative.
Though the use of private security contractors has been ubiquitous within US history, Iraq and Afghanistan provide the best examples of such deployment in the modern age. Much of the literature on PMSCs indeed revolves around Iraq, given the length of the war and its unending implications. Petersohn (2013) explains that there have been two factions debating the effectiveness of private security contractors in Iraq. One group, termed as statists, argue that PMSCs are ineffective and corrupt, while opposing neoliberals deem them as a useful and necessary compliment to regular troops in battle. The author adds that both notions have been hinged on anecdotal evidence, which is not only unreliable but misleading. Petersohn (2013) presents perhaps the most concrete defense of PMSCs with respect to their effectiveness. Using data from Wikileaks’ “Iraq war logs”, he compares the performance of private security contractors to Iraq and US troops. The author concluded that PMSCs were not only better than poorly trained troops like those of Iraq, but also a significant number of able US troops. However, it must be noted that the data used in the study can be questionable given the controversial standing of Wikileaks and the evident scarcity of corroborative evidence. The study however makes a general point on the usefulness of PMSCs in war zones and their possible augmenting purpose to regular troops. Nevertheless, there is no indication that the activities of PSCs are overwhelmingly satisfactory and in no need of regulatory treatment.
Andreopoulos and Kleinig (2017) foregrounds the use of PSCs in Iraq by highlighting the historical uses of mercenaries in wars by the US, giving examples such as the Revolutionary and Continental wars both in which private contractors were hired to provide logistics, food and weapons to US troops. The source intimates that after the end of the cold war, the department of defense (DoD) embarked on a de-escalation campaign, in which they cut logistic resources and personnel. This ended the country’s self-reliance in participating in various wars globally, requiring them to collaborate with contractors for their missions (Andreopoulos and Kleinig 2017). It is now argued that the DoD is incapable of completing major military tasks without the input of private contractors, citing examples of the Iraq, Afghan and Balkan wars, where contractors formed half of the US workforce (Brewis and Godfrey 2018). The use of PSCs in Iraq and many other areas with US military interests is therefore inevitable and unlikely to end soon. This indicates the strategic need for a regulatory framework that shall guide engagement with PSCs henceforth.
Krahmann (2017) justifies the reliance on contractors in wars such as Iraq on various grounds. To begin with, contractors are easy to hire and are ready to deploy unlike regular forces that require capacity building. Elsewhere, such contractors are important in offering complimentary non combat duties to regular troops. This allows the military to deploy their personnel fully in combat and avoid wasting them on non-combat duties. It is also noteworthy that contractors help the DoD to save money. This is because they are hired on a need basis and reassigned from tasks as soon as the work is over. This is more economically sound than maintaining a regular army in bloated numbers especially in times of peace and stability (Swed and Crosbie 2017). These factors explain why it was necessary to deploy private security contractors in Iraq and their allure to the US DoD. While their need is justified, the DoD seems to consider the need alone rather than the entire spectrum of their deployment, including regulation.
Schwartz (2010) further attempts to characterize the numbers and functions of private security contractors in Iraq. Using data from the Central Command Region, the author posits that there were around 95,400 contractors in Iraq by the year 2010, compared to 95,000 troops which accounts for just over 50% of the total personnel pursuing US interests in Iraq. This corroborates earlier evidence and speculation that there were more contractors than regular troops in Iraq, providing a wide range of services. The same data shows that about 65% of the contractors were involved in base command support, encompassing services such as maintaining the grounds, providing food and carrying out laundry. The other major function was security, with around 12% of the contractors directly involved in the provision of security services. The author estimates that at least 80% of the personnel were involved in these core functions.
However, the estimates made by Schwartz (2010) are contradicted by Isenberg (2009) who reckons that for the first three years of the Iraq war, there were barely any statistics on the number of private security firms, military spending on the same, the fate of wounded combatants and the US’ spending on outsourced military services. Even after attempts by the then legislator and Presidential Candidate Barack Obama to table amendments to bring greater transparency, information remained scarce. The Government Accountability Office (GAO) noted that no US agency had complete data on private contractors in Iraq, with a large number of figures released to the public merely estimates. Isenberg (2009) notes that the opacity is deliberate, with the government advising private contractors to refer media contacts to the DoD rather than divulge any information on their operations. The private security contractors have also withheld information about their operations on account of self-interest as well as confidentiality agreements with their clients. In the end, it has become almost impossible to get credible and meaningful information on PMSCs in Iraq. The Iraqi deployment of PSCs is thus in evident need of a regulatory framework.
Elsea, Schwartz and Nakamura (2008) add that despite the US employing contractors in Afghanistan and Bosnia, Iraq was the heaviest deployment in their history. The article focuses on a majority of pre-mentioned gains and the necessity of private contractors. There seems to be general consensus in literature that there can be no successful US military action in Iraq and other parts of the globe today without the enlisting of private contractors. Their role is critical for both support and combat duties. Elsea, Schwartz and Nakamura (2008) however note that their involvement comes at a risk of undermining stability efforts in countries like Iraq and Afghanistan. Notably, their lack of discipline and human rights abuses in selected cases undermine the efforts to win public trust by the US military, without which counterinsurgency efforts cannot succeed. It is therefore important that their activities are closely monitored and regulated to ensure they do not sabotage the overriding objectives of their enlisting.
One of the most problematic areas in private security contracting has been their regulation by the DoD. In their own admission, the military had not carefully thought out their deployment and particular involvement in combat situations and training (Palmer 2018). The latter adds that the reliance on private security contractors in Iraq was not only unprecedented but unplanned. Some of the issues that arose from poor regulation include wasteful spending on contractors, scandals such as those of Blackwater and the Abu Ghraib Prison and general unaccountability (Jackson and Beswick 2018). Decrying the careless manner in which contractors had been deployed; Senator Barack Obama argued that it was impossible to win the battle of minds and hearts whilst heavily relying on unaccountable contractors. Numerous GAO and Gansler commission reports highlighted the need for more regulation and provoked a response from military stakeholders regarding the matter. One of the results of the reports was the setting up of the Joint Contracting Command (JCC) to centralize and formalize the procurement of contractors. Palmer (2018) noted that the reports also provoked the DoD to send more personnel to assist in the handling of more complex contracts.
Elsea (2010) highlights the existing legal framework for private security contractors. The author notes that private security contractors are first subject to international laws, including relevant treaties, resolutions of the UN Security Council and the international order of laws and uses of wars. The deployment of private contractors is however a grey area in international law, with the focus limited to the treatment of Prisoners of War (POW). Apart from international law, private security contractors are subject to US laws as well as the laws of the host countries. In the Iraqi war, this means that contractors were regulated by both US law and Iraq laws (Martin 2017). While there seems to be at least a legal framework that can be refined to examine the activities of PSCs, the laws are vague and not specific to the contractors. Their application is thus riddled with loopholes that can be easily exploited by PSCs in engaging in unlawful activities.
The US congress has also focused their efforts on private security contracting though most of it has been reactive rather than proactive. The House Committee on Armed Forces, Homeland security and that on Government Affairs have held hearings on the matter and raised concerns over the misconduct of private security contractors (Rumbaugh and Peters 2017). These hearings emerged following events of shooting of civilians, use of excessive force as well as disregard to the customs of the locals in both Iraq and Afghanistan. There has also been a few legislations towards the same including the National Defense Authorization Act (NDAA) which required the secretary of state to work closely with the secretary for defense in coming up with guidelines and regulations for the screening, authorization and accountability of PMSCs (Chisholm 2018). Among the guidelines and regulations expected were reporting on used weapons, injuries and death. Elsewhere, the US has sufficient laws under which private security contractors can be prosecuted and held accountable. According to Ryngaert (2008), litigation is the best way of socializing them and can be useful in motivating them to come up with their own accountability mechanisms as well as increase transparency in their activities. The author notes that while holding them to account under tort law may be difficult, there are numerous jurisprudential opportunities under criminal law. Criminal punishment can send a strong signal but the gap remains in the case of prosecutors (Ryngaert 2008). They need to provide more leadership in bringing cases to court.
Chesterman and Lehnardt (2007) explain the problematic nature of regulating PMSCs. To begin with, the issue is normally shunned with the focus on how they have been deployed and the results of the same. Stakeholders are yet to form a meaningful path towards regulation with most measures created on an ad hoc basis. Elsewhere, it is difficult to decide on a regulatory framework due to the scarcity of data on the number, type and function of private security contractors (Chisholm 2018). Regulation would need an understanding of the specific activities such contractors engage in and as such it is fundamental to have them disclosed prior to enacting regulation. There is also a general disinterest in both the military and the contractors to make a full disclosure of private security contracting, making their activities impervious to Congress, prosecutors and other stakeholders who attempt to hold them to account. There is need to overcome these issues and craft a credible mechanism of regulating private security contractors. The literature therefore points to a number of gaps that justify the need for a regulatory framework that will be encompassing and hence bring sanity to the world of private security contracting.
The main objective of the research was to come up with an encompassing regulatory framework that will guide the activities of Private Security Contractors (PSCs) in Iraq. The specific objectives were:
The study was guided by the following research questions:
According to Cresswell et al (2007), research design refers to the overall strategy that is adopted in addressing the research questions. The design provides the general framework upon which data collection, sampling, and analysis is predicated. The research design appropriate for the research questions was qualitative. A qualitative research design aims at identifying themes, concepts and strategies that can be applied to specific phenomena. Unlike other forms of research, it does not require the manipulation of variables and instead aims at understanding issues in their natural occurrence (Cresswell et al 2007). Qualitative research design was appropriate for the current study due to the descriptive nature of the desired regulatory framework that is to be the end product. In the end, the goal was to construct a model that can be used for regulation, rather than demonstrate any relationships that would have called for a different design.
Qualitative data was collected from existing sources of scholarly literature. A search was conducted on credible databases such as Google Scholar and Proquest retrieving journal articles and books on the topic. Key words for the search process included private security, security contractors, private security in Iraq, wars, conflicts and regulation of private security contractors, among others. Boolean operators like “and’ were used to narrow down the search to ensure that it covered the relevant items. Other sources used in the paper included news reports from credible media outlets and international and government organizations. These provided up to date information on the subject matter. Relying on literature for data was necessary due to the nature of the subjects of the research. There was a geographical and logistical barrier in reaching the PSCs in Iraq and even if it were possible to reach them, obtaining information from them is a risky and problematic process. Therefore, obtaining information from published research was the best way to go about it.
The sample featured credible scholarly articles on the topic. Cresswell et al (2007) offers guidelines that 20-30 participants are appropriate for qualitative research, and as such, at least 30 credible sources were employed in the research. Geographically, the sample was limited to Iraq, examining the activities of PSCs in the region. The geographical sample was limited to Iraq due to the heavy reliance on PSCs in the US mission therein, providing the best sample upon which adequate data could be collected on the subject matter.
The data collected was analyzed using thematic analysis. The latter is commonly used in qualitative research to describe phenomena by looking for common themes and patterns. The patterns and themes were pieced together in coming with a regulatory framework. The data was examined to isolate the main points that were grouped under several themes. Further analysis of the themes was done to come up with the desired regulatory framework.
Various ethical guidelines were adhered to in the research. To begin with, caution was taken to adhere to any confidentiality guidelines with respect to persons mentioned or institutions that had been quoted in the condition of anonymity (Flick, 2015). This was important given the sensitivity of security operations. Further, any information that was deemed be too sensitive to ongoing operations was avoided in the study to avoid jeopardizing the operations.
There were several limitations in the study design including the focus on one geographical area (Iraq). This means that the results of the study may not be generalizable to PSCs in other jurisdictions. The reliance on published research may also come across as a limitation. This is because any biases and inaccuracies in the published data may have been inherited in the study. This limitation was overcome by relying on a variety of sources and carefully checking for reliability of sources prior to inclusion in the evidence pool.
There were two objectives in the research study. The first was to understand if there were any regulations governing the work of PSCs in Iraq. This was hand in hand with the research question on what regulations, if any, existed governing the operations of PSCs operating in Iraq. The results with respect to the above objective and corresponding research question are presented in Table 1 below. The table presents the regulatory elements and their weaknesses as they emerged in reviewed literature.
|Epistemological||No clear terms to define who a PSC was and what they were responsible for.Overlapping identities with security firms that performed similar functions and equally had no narrative description of their identity and work. Negative connotations from being termed as “mercenaries”Desire to avoid being associated with the word “military” in their naming. This was necessary in order to downplay their combat abilities.|
|Self-Regulation||Lack of clear structure – PSCs were started and liquidated haphazardly, no idea who owners were, difficult to differentiate between a contractor and a subcontractor. Lack of professional code – show off, lack of dressing code, incorrect handling of weapons, general lack of discipline, lack of proper training. Unclear job description – it was unclear whether contractors were engaged in combat or non-combat duties. Official records alleged that they were involved in base support services but media and stakeholder reports argued that they performed combat duties. Opacity and unaccountability in operations. Poor human resource management – PSC employees could not be identified clearly and were offered no support in cases of injuries and fatalities in combat.|
|Stakeholder apathy||The public has a generally negative perception of PSCs due to their reference as mercenariesSome criticism is unfair and hinged on history rather than present reality. For instance, the UN Working Group’s insistence on referring to PSCs as mercenaries. Host nations sometimes turn against PSCs e.g Iraqi police after the Blackwater incident.|
|Legal Framework||PSCs are subject to international law, the laws of the US and the Host nations, treaties and UN resolutions.Though there exists such frameworks, there are many loopholes. For instance, prosecuting a PSC under US law would be complicated due to their opacity and hence lack of information to inform prosecution case.There are no specific laws for PSCs under the framework of international law – so far the most relevant law to war relates to prisoners of war. The law has not been used enough e.g to prefer criminal charges over PSCs for various acts of criminality.|
|Congressional Audit||The congress has not enacted enough laws to govern the activities of PSCs. Congress has no access to pertinent information regarding the operations of PSCs. For instance, there is no clear information on how many were deployed in Iraq and on what budget. There is overall lack of proactive efforts to regulate the activities of PSCs. Most of the efforts were reactive.|
|Department of Defense (DoD) strategy||Deployment was ad hoc and unplanned. The process of deploying PSCs was shrouded in mystery and opacityThere was a deliberate desire to conceal information regarding PSCs in the military. For instance, the PSCs were asked not to respond to the media and instead direct all questions to the DoD.|
Table 1: Major themes emerging in relation to the existing regulation of PSCs
The second objective was to come up with a regulatory framework that is encompassing for the guidance of the activities of PSCs in Iraq. Together with the corresponding research question on what regulatory framework would be fitting for guiding the activities of PSCs in Iraq, the following themes emerged. Table two summarizes the major features of a suitable regulatory framework that could be adopted in checking the activities of PSCs. The themes relate to the weaknesses of the existing regulatory regime presented in Table 1.
|Congressional Action||The US congress should enact clear and comprehensive laws guiding the deployment of PSCs.Such laws should address epistemological issues and define who a PSC is and what their duties are. This includes stating whether PSCs can take part in combat.The congress should also set accountability mechanisms – including reporting guidelines for PSCs and designation of their appearance before senate committeesThe DoD will only be allowed to contract PSCs that abide by the relevant laws|
|Legal Framework||International laws, treaties and UN resolutions should be put in place to cater specifically for PSCs. Host nations should be bound by international law and otherwise harmonize their local laws with international agreements on PSCs.The legal framework should provide for prosecution under international law apart from criminal charges that can be preferred by individual nations.|
|DoD strategy||The DoD should come up with a long term strategy for deploying PSCs.The strategy should be informed by congressional acts and international lawThere should be accountability mechanisms set up to ensure that PSCs are transparent to the DoD and all relevant stakeholders. Licensing and registration of all PSCs is key.|
|Self Regulation||PSCs should impose self regulation on their activities by forming professional bodies, having a clear professional code of conduct and abiding by all relevant laws.There should be clear structures in PSCs informing ownership, shareholding and hierarchy of power. PSCs must be transparent and accountable in their actions to all relevant stakeholders. Proper human resource strategies should also be put in place to ensure PSC employees are protected and catered for.|
Table 2: Major themes on proposed regulatory framework
The results indicate that there are existing regulatory guidelines but highly flawed ones. The weaknesses in the regulations for PSCs are so fundamental that defining what a PSC is and its functions is itself a problem. The PSCs were further indistinguishable from security firms, who could not explain who they are and what they do just like the PSCs (Carmola 2010). This points to lack of coherence in the regulatory framework as the first principles that would have otherwise provided guidance for the use of PSCs are yet to be laid down. Coupled with the history of PSCs namely being termed as mercenaries, the situation breeds high levels of stakeholder apathy (Nemeth, 2017b). No wonder the public and the UN remain apprehensive over the use of PSCs. While the PSCs complain of unfair characterization, it is apparent that they also failed in self-regulation, creating a deliberate air of opacity. Interestingly, the DoD has also handled the issue of PSCs casually, failing to create accountability frameworks or shed light on the activities of PSCs (Carmola 2010). Lack of self-regulation and poor DoD strategies are the main problems to be addressed by a regulatory framework.
The results further intimate that the existing legal frameworks are limited both at the international level and congressional enactments. There are loopholes that PSCs can exploit to escape accountability just like it is apparent that Congress lacks the tools to enforce transparency on the PSCs. For instance, there is no explicit international law guiding the deployment of PSCs (Knuck 2014). In addition, the Congress may easily fail to conduct their oversight role over PSCs given their opacity in operations. While all these loopholes may imply aiding impunity on the part of the PSCs, the PSCs are also exposed in the absence of a clear regulatory framework. Most of the time, disputes arise that require mediation within a clear legal framework. Operating outside the law leaves them with no legal recourse. Their contracts are mysterious, confidential and opaque to the extent that they may not be executable within the province of contract law (McFate 2017). Should any stakeholder turn against them, the lack of a good regulatory framework will also be their undoing. The regulatory framework to be proposed is in the interest of all stakeholders as such.
The congress is at the heart of the proposed regulatory framework. Through its actions, the Congress holds the key to setting into motion a new, encompassing framework for regulating PSCs. The congress in the new framework shall provide definition of terms, scope of duties and laws that should guide PSCs (Rumbaugh and Peters 2017). When coupled with international law and UN resolutions and treaties, the congressional acts shall result in a comprehensive legal framework. The DoD shall then come up with a long term strategy for engaging PSCs, giving clear terms, accountability mechanisms and reporting guidelines. The strategy shall be guided by the prevailing legal framework that shall be availed by the congress and other stakeholders. Only PSCs that meet the criteria set in US and international laws shall be engaged by the DoD. It is upon the PSCs to now set up their own self-regulating mechanisms to ensure that they abide by the given laws and DoD guidelines. The resulting regulatory framework shall appear as in figure 1 below.
It is noteworthy that the model of PSCs’ regulation shown in figure 1 does not account for stakeholder apathy which was a major theme in the results. This is because the negative attitude towards PSCs by the general public and stakeholders such as the UN is deemed to be highly due to the weaknesses that are addressed by the regulatory framework. When PSCs are transparent and accountable to stakeholders, it is unlikely that they will continue to face stigma and unmerited condemnation (Coburn 2017). Operating within a clear and structured regulatory framework shall allow PSCs to gain the trust of host nations, the public and all other stakeholders and hence do away with all the existing apathy. For instance, they should impose proper self-regulation in terms of professionalism so that their image can be transformed from that of mercenary-like operatives to professional contractors. Uniforms, discipline, proper remuneration and human resource management are some of the measures that can be put in place to change public perception regarding the PSCs.
Fig 1: Framework for regulating PMSCs
One of the strengths of the proposed regulatory framework in Fig. 1 above is that the congress has overwhelming powers of controlling the activities of PSCs. As earlier explained, the congress shall set out the laws that shall guide the deployment of the PSCs and therefore buttress the existing legal framework. Apart from this, the Congress can directly affect DoD strategy for enlisting PSCs by auditing the process and summoning the relevant authorities through senate committees (Wallace 2017). Putting the congress at the center of the process is important to ensure that the framework is capable of evolution with emerging needs. For instance, the senate can request stakeholder opinions when designing new laws to govern the activities of PSCs. They can also enact new laws through independent observations on DoD strategy (Nemeth, 2017b). The congress is thus justified to have overwhelming powers in shaping the regulation of PSCs. Citizens also feel represented in the framework when it is congress driven. It is even easy to capture their opinions as senators represent the people and exercise authority on their behalf.
The objectives of the completed study were to understand the existing regulatory framework and consequently propose a more encompassing regulatory regime of PSCs in Iraq. Through a qualitative research design, a literature review was conducted to endeavor at answering the two questions. The results indicated that though a framework for regulation existed, it was way too lacking in multiple dimensions which were to be addressed by a better framework. For instance, the legal framework lacked explicit and specific laws that addressed the issues of PSCs in combat zones like Iraq. The PSCs on their part had failed to self-regulate and were fairly happy to operate under an air of opacity and unaccountability. This was aided by the lack of a clear DoD strategy of enlisting PSCs and their complicity in limiting transparency in PSC contracts. Effectively, the case for a better regulatory framework was well demonstrated.
The resultant regulatory framework for PSCs was centered on the Congress, which through enacting better laws and holding the DoD accountable for the operations of the PSCs set in motion a new framework with more reliability. The Congressional acts, international law and other sources of relevant law together formed a legal framework – improved and evolving with emerging needs. The legal framework, as was recommended, needed explicit sections governing the activities of PSCs which could be used to keep them accountable. The DoD on their part are to come up with a strategic formula for enlisting PSCs, crafted around the new legal framework and the direct oversight of the Congress. The strategic framework entails licensing and registration of PSCs which will ensure that they have a clear structure and chain of command. More importantly, there is need for self-regulation amongst PSCs to help them become more professional and gain the trust of various stakeholders.
Evidently, the Congress is the first place to start as far as the new framework is concerned. It is therefore imperative that efforts begin at that level in setting off a new regulatory regime that shall be based on a cogent legal framework as well as direct auditing efforts from the house. The reliance on the Congress is an essential one as both reactive and proactive measures can be taken in reaction to new events and emerging trends in the military activities of the US. While the substance of the current study was to deliver a regulatory framework with practical and immediate application, there is need for further research on PSCs. The current study proposes a framework that shall ensure that PSCs have utility to the state and are benign as far as its legitimacy is concerned. However, a more comprehensive investigation is needed to understand the potentiality of PSCs in undermining the authority and power of the state as has for instance, been suggested in the social contract theory. The US and other countries that make use of PSCs would benefit from understanding if their monopoly of using legitimate force is challenged, in practice, by the use of PSCs. Another research area suitable for future inquiry is on the controversial conflict of interest abounding the work of PSCs. While they are required to help in ending wars, it is the same wars that bring them profit. Understanding how the conflict is managed and overcome is critical to the operations of future PSCs.
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