Beyond WikiLeaks The Privatization of War
(from Nathela Crooks 12-28-10)
MONDAY 27 DECEMBER 2010
"Beyond WikiLeaks: The Privatization of War"
Sunday 26 December 2010
by: Jose L. Gomez del Prado, UN Working Group on Mercenaries, t r u t h o u t | Report
The United Nation Human Rights Council, under the Universal Periodic Review, started in Geneva on November 5, 2010 to review the human rights record of the United States. The following is an edited version of the presentation given by Jose L. Gomez del Prado in Geneva on November 3, 2010 at a parallel meeting at the UN Palais des Nations on that occasion.
Private military and security companies (PMSC) are the modern reincarnation of a long lineage of private providers of physical force: corsairs, privateers and mercenaries. Mercenaries, which had practically disappeared during the 19th and 20th centuries, reappeared in the 1960s during the decolonization period, operating mainly in Africa and Asia. Under the United Nations, a convention was adopted which outlaws and criminalizes their activities. Additionally, Protocol I of the Geneva Conventions also contains a definition of mercenary.
These non-state entities of the 21st century operate in extremely blurred situations, where the frontiers are difficult to separate. The new security industry of private companies moves large quantities of weapons and military equipment. It provides services for military operations, recruiting former military as civilians to carry out passive or defensive security.
However, these individuals cannot be considered civilians, given that they often carry and use weapons, interrogate prisoners, load bombs, drive military trucks and fulfill other essential military functions. Those who are armed can easily switch from a passive-defensive to an active-offensive role and can commit human rights violations and even destabilize governments. They cannot be considered soldiers or supporting militias under international humanitarian law, either, since they are not part of the army or in the armed forces chain of command, and often belong to a large number of different nationalities.
PMSC personnel cannot usually be considered to be mercenaries, for the definition of mercenaries as stipulated in the international conventions dealing with this issue does not generally apply to the personnel of PMSCs, which are legally operating in foreign countries under contracts of legally registered companies.
Private military and security companies operate in a legal vacuum: they pose a threat to civilians and to international human rights law. The UN Human Rights Council has entrusted the UN Working Group on the use of mercenaries, principally via the following mandate:
To monitor and study the effects of the activities of private companies offering military assistance, consultancy and security services on the international market on the enjoyment of human Rights … and to prepare draft international basic principles that encourage respect for human rights on the part of those companies in their activities.
During the past five years, the Working Group has been studying emerging issues, manifestations and trends regarding private military and security companies. In our reports, we have informed the Human Rights Council and the General Assembly about these issues. Of particular importance are the reports of the Working Group to the last session of the Human Rights Council, held in September 2010, on the Mission to the United States of America, on the Mission to Afghanistan and the general report of the Working Group containing the draft of a possible Convention on Private Military and Security Companies for consideration and action by the Human Rights Council.
In the course of our research, since 2006, we have collected ample information which indicates the negative impact of the activities of "private contractors," "private soldiers" or "guns for hire," whatever denomination we may choose to name the individuals who are employed by private military and security companies as civilians but are also generally heavily armed. In the cluster of human rights violations allegedly perpetrated by employees of the companies the Working Group has examined, one can find: summary executions, acts of torture, cases of arbitrary detention, trafficking of persons and serious health damages caused by PMSC employee activities, as well as attempts against the right of self-determination. It also appears that PMSCs, in their search for profit, neglect security and do not provide their employees with their own basic rights and often put their staff in situations of danger and vulnerability.
Summary executionsOn September 16, 2007 in Baghdad, employees of the US-based firm Blackwater  were involved in a shooting incident in Nisoor Square in which 17 civilians were killed and more than 20 other persons were wounded, including women and children. Local eyewitness accounts substantiate that the attack included the use of firearms from vehicles and rocket fire from a helicopter belonging to Blackwater.
There are also concerns about the activities and approach of PMSC personnel, their convoys of armored vehicles and their conduct in traffic - in particular, their use of lethal force. The Nisoor Square incident was neither the first of its kind, nor the first involving Blackwater.
According to a Congressional report on the behavior of Xe/Blackwater in Iraq, Xe/Blackwater guards were found to have been involved in nearly 200 escalation-of-force incidents that involved the firing of shots since 2005. Despite the terms of the contracts, which provided that the company could engage in defensive use of force only, the company reported that in over 80 percent of the shooting incidents, its forces fired the first shots.
In Najaf in April 2004 and on several other occasions, employees of this company took part in direct hostilities. In May 2007, another incident reportedly occurred in which guards belonging to the company and forces belonging to the Iraqi Ministry of the Interior allegedly exchanged gunfire in a sector of Baghdad.
On October 9, 2007 in central Baghdad, the shooting of employees of the PMSC Unity Resources Group (URG), who were protecting a convoy, killed two Armenian women, Genevia Antranick and Mary Awanis, when their car came too close to a protected convoy. Antranick's family was offered no compensation and has begun court proceedings against URG in the United States.
URG was also involved in the shooting of 72-year-old Australian Kays Juma. Professor Juma was shot in March 2006 as he approached an intersection that was being blockaded for a convoy URG was protecting. Juma, a 25-year resident of Baghdad who drove through the city every day, allegedly sped up his vehicle as he approached the guards and did not heed warnings to stop, including hand signals, flares, warning shots into the body of his car and floodlights. The incident occurred at 10 AM.
TortureTwo US-based corporations, CACI and L-3 Services (formerly Titan Corporation), were involved in the torture of Iraqi detainees at Abu Ghraib. CACI and L-3 Services were contracted by the US government and were responsible for interrogation and translation services, respectively, at Abu Ghraib prison and other facilities in Iraq.
Seventy-two Iraqi citizens who were formerly detained at military prisons in Iraq have sued L-3 and Adel Nakhla, a former L-3 employee who served as one of its translators there under the Alien Tort Statute. The plaintiffs allege having been tortured and physically and mentally abused during their detention and maintain that the defendants should be held liable in damages for their actions. They assert 20 causes of action, including: torture; cruel, inhuman or degrading treatment; assault and battery; and intentional infliction of emotional distress.
Arbitrary detentionA number of reports indicate that private security guards have played central roles in some of the most sensitive activities of the Central Intelligence Agency (CIA), such as the arbitrary detention of and clandestine raids against alleged insurgents in Iraq and Afghanistan , CIA rendition flights , and joint covert operations. Employees of PMSCs would have been involved in transporting detainees in rendition flights from "pick-up points" (such as Tuzla, Islamabad or Skopje) to drop-off points (such as Cairo, Rabat, Bucharest, Amman or Guantanamo) as well as in the construction, equipping and staffing of CIA "black sites."
Within this context, the American Civil Liberties Union (ACLU) filed a lawsuit in May 2007 against Jeppesen DataPlan Inc., a subsidiary company of Boeing, on behalf of five persons who were kidnapped by the CIA and disappeared into US secret services prisons overseas. Jeppesen would have participated in the rendition by providing flight planning and logistical support. The five persons were tortured during their arbitrary detention.
HealthDynCorp International's 2009 annual report refers to four lawsuits on behalf of three Ecuadorian provinces and 3,266 plaintiffs concerning the spraying of narcotic plant crops along the Colombian border adjacent to Ecuador.
From 1991, the US Department of State contracted DynCorp to supply services for this air-spraying program against narcotics in the Andean region. In accordance with the subscribed contract of January 30, 1998, DynCorp provides the essential logistics to the anti-drug Office of Activities of Colombia in conformity with three main objectives: eradication of cultivations of illicit drugs, training of the army and of personnel of the country and dismantling of illicit drug laboratories and illicit drug-trafficking networks.
A nongovernmental organization (NGO) report documented the consequences the spraying, which was carried out within the Plan Colombia framework, had on persons living in the frontier region. One-third of the 47 women in the study exposed to the spraying showed cells with some genetic damage. The study established the relationship between Plan Colombia air fumigations and damage to genetic material. The study demonstrates that when the population is subjected to fumigations, "the risk of cellular damage can increase and that, once permanent, the cases of cancerous mutations and important embryonic alterations are increased, that prompt among other possibilities the rise in abortions in the area."
This example is particularly important given that Plan Colombia has served as the model for the arrangements that the US would apply later to Iraq and Afghanistan. Plan Colombia provides immunity to the employees of the contracted PMSC (DynCorp), just as Order 14 of the Coalition Provisional Authority did in Iraq.
Self-determinationThe 2004 attempted coup d'etat perpetrated in Equatorial Guinea is a clear example of the link between the phenomenon of mercenaries and PMSCs as a means of violating the sovereignty of states. In this case, the mercenaries involved were mostly former directors and personnel of Executive Outcomes, a PMSC that became famous for its operations in Angola and Sierra Leone. The team of mercenaries also included security guards who were still employed by PMSCs, as was the case with two employees of the company Meteoric Tactical Systems - which provided security to diplomats of western embassies in Baghdad, including the ambassador of Switzerland - and a security guard who had previously worked for the PMSC Steele Foundation and had given protection to Haiti's President Aristide and escorted him to the plane that took him to exile.
Trafficking in personsIn 2005, 105 Chileans were providing or undergoing military training in the former army base of Lepaterique in Honduras, where they were instructed in anti-guerrilla tactics, such as anticipating possible ambushes and deactivation and avoidance of explosives and mortars. The Chileans had entered Honduras as tourists and their presence in the country was illegal. They used high-caliber weapons, such as M-16 rifles and light machine guns. They had been contracted by a subsidiary of a company called Triple Canopy.
The Chileans were part of a group that also included 189 Hondurans recruited and trained in Honduras. Triple Canopy had been awarded a contract by the US Department of State. The contingent left the country by air from San Pedro Sula, Honduras in several groups, stopping over in Iceland and, upon reaching the Middle East, were smuggled into Iraq.
The majority of the Chileans and Hondurans were engaged as security guards at fixed facilities in Iraq. They had been contracted by Your Solutions Honduras SRL, a local agent of Your Solutions Incorporated, registered in the US state of Illinois. Your Solutions had in turn been subcontracted by the Chicago-based Triple Canopy. Some of the Chileans are presently working in Baghdad, providing security to the Embassy of Australia under a contract with Unity Resources Group (URG).
Human rights violations committed by PMSCs against their employeesPMSCs often put their contracted private guards in vulnerable and dangerous situations, such as the one faced by the Blackwater "private contractors" killed in Fallujah in 2004. Their fate was allegedly due to the lack of the necessary safety means - which Blackwater was supposed to provide - in order to carry out their mission.
It should not be forgotten that this incident dramatically changed the course of the war and of the United States' occupation in Iraq. In fact, it may be considered the turning point in the occupation of Iraq. The incident led to an abortive US operation to recapture control of the city and the successful November 2004 recapture operation, known as Operation Phantom Fury, which resulted in the deaths of over 1,350 insurgent fighters. Approximately 95 American troops were killed and another 560 were wounded.
The US military first denied that it had used white phosphorus as an anti-personnel weapon in Fallujah, but later retracted that denial and admitted to using the incendiary in the city as an offensive weapon. Reports following the events of November 2004 have alleged war crimes and a massacre by US personnel, including indiscriminate violence against civilians and children. This point of view is presented in the 2005 documentary film, "Fallujah, the Hidden Massacre." In 2010, the International Journal of Environmental Research and Public Health, a leading medical journal, published a study that shows that the rates of cancer, infant mortality and leukemia in Fallujah exceed those reported in Hiroshima and Nagasaki.
The over 300,000 classified military documents made public by Wikileak's show that the "Use of Contractors Added to War's Chaos in Iraq," as has been widely reported by the international media recently.The United States continues to rely heavily on private military and security contractors in conducting its military operations. The US used private security contractors to conduct narcotics intervention operations in Colombia in the 1990s and recently signed a supplemental agreement that authorizes it to deploy troops and contractors in seven Colombian military bases. During the conflict in the Balkans, the US used a private security contractor to train Croat troops to conduct operations against Serbian troops. Currently, most of the US's massive contracting of security functions to private firms takes place in the context of its operations in Iraq and Afghanistan.
In 2009, the Department of Defense employed 218,000 private contractor personnel, while there were 195,000 uniformed personnel. According to the figures, about 8 percent of these contractors are armed security contractors, or about 20,000 armed guards. If one includes other theatres of operations, the figure rises to 242,657, a figure comprised of 54,387 United States citizens, 94,260 third-country nationals and 94,010 host-country nationals.
The State Department relies on about 2,000 private security contractors to provide US personnel and facilities with personal protection and guard services in Afghanistan, Iraq, Israel and Pakistan, and to provide aviation services in Iraq. The contracts for protective services were awarded in 2005 to three PMSCs: Triple Canopy, DynCorp International and the US Training Center, part of the Xe (then-Blackwater) group of companies. These three companies still hold the State Department protective services contracts today.
Lack of transparencyThe information accessible to the public on the scope and type of US-PMSC contracts is scarce and opaque. The lack of transparency is particularly significant when contracting companies subcontract to others. Often, despite the US's extensive freedom of information rules, the contracts with PMSCs are not disclosed to the public, either because they contain confidential commercial information or based on the argument that non-disclosure is in the interest of national defense or foreign policy. The situation is particularly opaque when United States intelligence agencies contract PMSCs.
Lack of accountabilityDespite their involvement in grave human rights violations, not a single PMSC or PMSC employee has been sanctioned.
In the course of litigation, several recurring legal arguments have been used in the defense of PMSCs and their personnel, including the government contractor defense, the political question doctrine and derivative immunity arguments. PMSCs are using the government contractor defense to argue that they were operating under the exclusive control of the government of the United States when the alleged acts were committed and therefore cannot be held liable for their actions.
It looks as though when acts questionable under international law are committed by agents of the government, they are considered human rights violations, but when these same acts are perpetrated by PMSCs, it is "business as usual."
Human rights violations perpetrated by private military and security companies are indications of the threat posed to the foundations of democracy when inherently public functions - such as the monopoly on the legitimate use of force – become privatized. In this connection, I cannot help but to refer to the final speech of former US president Dwight D. Eisenhower.
In 1961, Eisenhower warned the American public against the growing danger of a military-industrial complex:
[W]e must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.
Fifty years later on September 8, 2001, Donald Rumsfeld, in his speech to the Department of Defense, warned the Pentagon military against:
an adversary that poses a threat, a serious threat, to the security of the United States of America. … Let's make no mistake: The modernization of the Department of Defense is … a matter of life and death, ultimately, every American's. … The adversary [is] the Pentagon bureaucracy. … That's why we're here today challenging us all to wage an all-out campaign to shift the Pentagon's resources from bureaucracy to the battlefield, from tail to the tooth. We know the adversary. We know the threat. And with the same firmness of purpose that any effort against a determined adversary demands, we must get at it and stay at it. Some might ask, how in the world could the Secretary of Defense attack the Pentagon in front of its people? To them I reply, I have no desire to attack the Pentagon; I want to liberate it. We need to save it from itself.
Rumsfeld should have been more specific and cited the shift of the Pentagon's resources from bureaucracy to the private sector. Indeed, that shift had been accelerated by the Bush administration: the number of persons employed by contracts that the Pentagon had outsourced was already four times more than at the Department of Defense.
It is not a military-industrial complex anymore, but, as Noam Chomsky has said, "just the industrial system operating under one or another pretext." Dana Priest and William M. Arkin's July 2010 article in the Washington Post, "Top Secret America: A hidden world, growing beyond control," shows the extent that "the top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive, that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work."
The investigation's findings include that some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States, and that an estimated 854,000 people - nearly 1.5 times as many people as live in Washington, D.C. - hold top-secret security clearances. A number of private military and security companies are among the security and intelligence agencies mentioned in the Post's report.
The Working Group received information from several sources that up to 70 percent of the US intelligence budget is spent on contractors. These contracts are classified, and very little information is available to the public on the nature of the activities contractors carry out.
The privatization of war has created a structural dynamic that responds to the commercial logic of the industry.
A short look at the careers of the current managers of BAE Systems, as well as at their address books, confirms that we are no longer dealing with a normal corporation, but with a cartel that unites high-tech weaponry (BAE Systems, United Defense Industries, Lockheed Martin), speculative financiers (Lazard Freres, Goldman Sachs, Deutsche Bank) and raw material cartels (British Petroleum, Shell Oil) with on-the-ground, private military and security companies.
The majority of private military and security companies have been created, or are managed by, former military members or ex-police-officers, for whom PMSCs are big business. Just to give an example, Military Professional Resources Incorporation (MPRI) was created by four former United States Army generals when they were due for retirement. The same is true for Blackwater and its affiliate companies or subsidiaries, which employ former directors of the CIA. Social scientists refer to this phenomenon as the revolving door syndrome.
The use of security contractors is expected to grow as American forces shrink. A July report by the Commission on Wartime Contracting, a panel established by Congress, estimated that the State Department alone would need more than double the number of contractors it had protecting the American Embassy and consulates in Iraq.
Without contractors: (1) the military engagement would have had to be smaller - a strategically problematic alternative; (2) the United States would have had to deploy its finite number of active personnel for even longer tours of duty - a politically dicey and short-sighted option; (3) the United States would have had to consider a civilian draft or boost retention and recruitment by raising military pay significantly - two politically untenable options; or (4) the need for greater commitments from other nations would have arisen and with it, the United States would have had to make more concessions to build and sustain a truly multinational effort. Thus, the tangible differences in the type of war waged, the effect on military personnel, and the need for coalition partners are greatly magnified when the government has the option to supplement its troops with contractors.
The military cannot do without them. There are more contractors overall than actual members of the military serving in the worsening war in Afghanistan.
Conclusions of the Senate Armed Services Committee concerning the impact of private security contracting on US goals in Afghanistan
<strong>Conclusion 1: The proliferation of private security personnel in Afghanistan is inconsistent with the counterinsurgency strategy. In May 2010, the U.S. Central Command's Armed Contractor Oversight Directorate reported that there were more than 26,000 private security contractor personnel operating in Afghanistan. Many of those private security personnel are associated with armed groups that operate outside government control.
Conclusion 2: Afghan warlords and strongmen operating as force providers to private security contractors have acted against U.S. and Afghan government interests. Warlords and strongmen associated with U.S.-funded security contractors have been linked to anti-Coalition activities, murder, bribery, and kidnapping. The Committee's examination of the U.S.-funded security contract with ArmorGroup at Shindand Airbase in Afghanistan revealed that ArmorGroup relied on a series of warlords to provide armed men to act as security guards at the Airbase.
Open-ended intergovernmental working group established by the HR Council
Because of their impact in the enjoyment of human rights, the Working Group on Mercenaries, in its 2010 reports to the UN Human Rights Council and General Assembly, has recommended a legally binding instrument to regulate and monitor PMSC's activities at the national and international level.
The motion to create an open-ended intergovernmental working group has been the object of lengthy negotiations in the Human Rights Council, led by South Africa, in order to accommodate the concerns of the Western Group, but primarily those of the United States and the United Kingdom; considerable pressure was also exerted in the capitals of African countries supporting the draft resolution. The text of the resolution was weakened in order to pass it by consensus, but, even so, the position of the Western States has been a "fin de non recevoir" – a complete demurral.
The resolution was adopted by a majority of 32 in favor, 12 against and 3 abstentions. Among the supporters of this initiative are four out of the five members of BRICS (Brazil, Russia, China and South Africa) in addition to the African Group, the Organization of the Islamic Conference and the Arab Group.
The adoption of this resolution opens an interesting process in the UN Human Rights Council in which civil society can participate in the elaboration of an international framework on the regulation, monitoring and oversight of the activities of private military and security companies. The new open-ended intergovernmental working group will be the forum for all stakeholders to receive inputs - not only the draft text of a possible convention and the elements elaborated by the UN Working Group on mercenaries, but also other initiatives, such as the proposal submitted to the Parliamentary Assembly of the Council of Europe, the Montreux Document and the international code of conduct being elaborated under the Swiss Initiative.
However, the negative vote of the delegations of the Western Group indicates that the interests of the new staggering security industry – its annual market revenue is estimated to be over USD one hundred billion – have been quite well-defended, as was the case on a number of other occasions. It also shows that Western governments will be absent from the start in a full, in-depth discussion of the issues raised by the activities of PMSCs.
We urge all states to support the process initiated by the Council by designating their representatives to the new open-ended intergovernmental working group, which will hold its first session in 2011, and to continue a process of discussions regarding a legally binding instrument.
The participation of the UK and the US, the main exporters of these activities (it is estimated that these two countries' firms control 70 percent of the security industry), as well as other Western countries where the new industry is expanding is of particular importance.
The Working Group also urges the United States Government to implement the recommendations we made, in particular, to:
· Support the US Congress's Stop Outsourcing Security (SOS) Act, which clearly defines the functions that are inherently governmental and that cannot be outsourced to the private sector.
· Rescind immunity to contractors carrying out activities in other countries under bilateral agreements.
· Carry out prompt and effective investigations of human rights violations committed by PMSCs and prosecute alleged perpetrators.
· Ensure that the oversight of private military and security contractors is not outsourced to PMSCs.