U.S. military contractors

The NY Times (apparently my favorite source of news since the majority of my blog posts involve a link to them) reported this morning that the U.S. has now charged a contractor with a crime while in the services of the military.

Now this phenomenon of the U.S. military hiring contractors is nothing new, but this attempt at holding a contractor liable for a crime is a new test of the military's legal jurisdiction.

Over the years, the “War on Terror” and the scandals at Abu Ghraib have raised public awareness of the use of private security/military forces, the use of contractors, and the privatization of traditional state functions. Much of the controversy and dialogue related to this issue has centered on the legal loopholes that allow violators of IHL to go unpunished. (granted the contractor in this article arguably did not commit an IHL violation, it is still relevant to this discussion)

Arguments have been raised that the issue could be resolved by applying the existing international legal instruments addressing mercenaries, however, the use of military contractors may not fall neatly within these confines. Yet, states still have a responsibility to ensure that the PSCs they hire respect international law. What should they do? Honestly, how easy is it for an individual country to regulate companies that primarily operate in a foreign jurisdiction? In my opinion, it's not.

It is not easy to legislate or regulate these types of actions because, beyond the logistical question of how to monitor activity in a foreign jurisdiction to ensure compliance with the regulation, there is the question of accountability. For regulation compliance to occur, there must exist an accountability / sanctioning mechanism. Now, this article has shown that the Uniform Code of Military Justice is being tested for this purpose, but how successful will it be is yet to be determined.

Generally, when it comes to accountability for PSC action in foreign jurisdictions, there are the legal hurdles to the proper exercise of jurisdiction. Without the legal instruments in which to hale the violator into court, there is no threat of punishment, thus no incentive to comply with the regulation.