The need for greater regulation of PMCs underscores the problems of PMC accountability in Iraq. First, there is legal accountability—how can these personnel be regulated under some form of international or national law? Second, how is it possible to regulate the force that these personnel employ?

PMCs and their employees currently operating in Iraq have recently come under fire for acting as if they were executives in their own state. Indeed, in some circumstances, they probably are not beholden to anyone. In his book Contract Warriors, Fred Rosen cites one incident in which contractors decided to set up their own roadblocks within Iraq, effectively acting as if they had control. The Observer published an article in April 2005 revealing that it had found a newsletter sent to employees of Blackwater Security, declaring that “Actually, it is ‘fun’ to shoot some people.” The letter elaborated: “it is fun, meaning satisfying” to shoot terrorists. While it is not immediately certain that Blackwater employees have shot people for fun, it reveals a side of PMCs that could be dangerous if left unchecked.

The aforementioned events were preludes to a larger problem that was thrown into sharp relief by the Abu Ghraib prison scandal. In April 2004 images of naked Iraqi inmates at the Abu Ghraib prison were released to the media, leading to the removal of 17 soldiers and officers from duty. Less publicized was the fact that Titan and CACI—PMCs assisting in the interrogation—also played a substantial role in the scandal. A 53-page internal report issued by US Major General Antonio Taguba alleged that four civilian contractors serving with the 205th Military Intelligence Brigade were involved in unacceptable treatment of Iraqi prisoners. According to the report, a contractor, Steven Stephanowicz, tried “setting conditions” for military police for the treatment of Iraqi inmates, “which were neither authorized [nor] in accordance with applicable regulations/policy… He clearly knew his instructions equated to physical abuse.” Taguba’s report concluded, among other things, that “US civilian contract personnel (Titan Corporation, CACI, etc)… wandered about with too much unsupervised free access in the detainee area.” The report even suggested that the presence of these civilian contractors “may have contributed to the difficulties in the accountability process and with detecting escapes.” The difficulty in PMCs’ collaboration with the military is not so much their inherently questionable behavior as the fact that PMCs, in contrast to the military itself, lack regulations governing and reducing behavior both on and off the battlefield.

In the case of PMC involvement in Iraq, holding employees of PMCs accountable for their actions proved difficult for the Coalition Provisional Authority (CPA) because of CPA Order 17, which stipulated that “contractors [including PMCs] shall be immune from the Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a contract or any sub-contract thereto.” Since the termination of the CPA, Iraqi efforts to keep a closer watch on PMCs have proved difficult. In May 2005, erstwhile Deputy Interior Minister Adnan Asadi sent a letter to PMCs operating in Iraq, warning the companies that if they continued to disobey local laws, “the cancellation [of PMC licenses] will be circulated to all state offices, with the aim of shunning any dealing with [PMCs].” However, such threats have often been disregarded; the Washington Post reported in September 2005 that Iraqi citizen Ali Ismail was shot at by PMCs while in traffic. It therefore seems clear that it is a duty of the US government as well as the Iraqi government to rein in the PMCs.

How Do We Regulate PMCs in Iraq?

While international law may seem to provide a proper avenue for PMC regulation, security companies currently have an ambiguous status under international treaties. Article 47, Additional Protocol I to the Geneva Convention forbids the presence of mercenaries in conflict, but PMC duties do not necessarily fall under the textbook definition of mercenary. For example, one definition of mercenary in the Geneva Convention is a person who “does, in fact, take a direct part in the hostilities.” PMCs have engaged Iraqi insurgents, but their official roles do not directly involve fighting. In many instances, these companies were engaged without first initiating hostility, casting uncertainty on the practice of pigeonholing PMCs into the “mercenary” category. A more recent multilateral agreement, the 1989 UN Convention on Mercenaries, defined mercenaries in a similar manner, adding, however, that a mercenary would include those “overthrowing a Government or otherwise undermining the constitutional order of a State.” Again, this elaboration does not elucidate the legal status of PMC employees operating abroad. Deborah Avant, a political scientist from George Washington University, writes that this piece of legislation “governs only such egregious soldier-of-fortune activities as overthrowing the government. Human rights law binds only states, reducing the formal legal responsibilities of contractors.”

Thus, it is necessary for individual states to ensure that PMCs are held directly accountable for their actions. South Africa is already working to update a 1998 legislation forbidding South African PMCs to operate without the express consent of the government. While PMCs are not inherently war criminals—nor should they be viewed as such—instituting regulations such as the ones being created in South Africa is necessary to ensure that PMCs behave within a framework of law to which they are held personally accountable.

South Africa’s tighter control is just one type of regulation. Another type of regulation concerns employees within a PMC itself. Licenses for its members and more thorough background checks for its employees are necessary to ensure that those serving in Iraq will behave responsibly. In a recent interview with PBS, Peter Singer, a fellow at the Brookings Institution, provided an example of the dangers of not looking carefully at whom the US is hiring for services in Iraq: “[a British PMC employee] had been thrown out of the British Army and put in jail for cooperating with Irish terrorists. The British Army was certainly not happy to find out that he was in Iraq working as a contractor, carrying a submachine gun on the ground.” Stricter US legislation regarding PMC employee background checks will go far in ensuring that incidents like those at Abu Ghraib will not reoccur.