Thursday, July 1, 2021

Understanding Private Military Contractors/Private Security Companies

Vital Interests: Laura, thanks very much for joining us today on the Vital Interests Forum. We are covering a lot of topics these days dealing with the Biden Administration and how it is re-engaging with global security challenges. One of its major decisions is to withdraw American troops from Afghanistan and other conflict areas.

When countries withdraw their combat forces, that does not necessarily mean they are totally finished providing some level of security assistance. This brings into focus the role of Private Military and Security Contractors, PMSCs. You've been studying these entities for a number of years, both from the outsourcing of government functions point of view, but also from an international law and norms perspective. To give our readers some background, can you provide an overview of PMSCs? 

Laura Dickinson: First of all, John, I just really want to thank you for inviting me to participate in this forum. I think this is a really important topic. PMSCs are companies that provide military and security services both to governments and to corporations and other actors all around the globe, both inside and outside of armed conflict. Today, the military and security sector is a multi-billion dollar global industry.

VI: So I discovered when looking into these companies for our discussion. I was not aware that G4S - a PMSC - was the second largest company in the world, second only to Wal-Mart.

Laura Dickinson: Yes, PMSCs are a significant force in the global economy. I also think it’s important to note that we have seen versions of military and security contractors going back throughout history. We've seen them in ancient times and in the US as far back as the revolutionary era. From my perspective, though, what we've seen in the last 20 years is distinctive in the scope, breadth, and what I would call the corporatization of the industry.

You ask who they are and what are they doing? Well, in the foreign affairs domain, which is really the focus of my research, they're doing an enormously vast array of things. They are providing logistics support to militaries. They are building military bases and everything that goes with that, from providing meal services, to cutting soldiers' hair.

PMSCs are a significant force in the global economy. I also think it’s important to note that we have seen versions of military and security contractors going back throughout history. We've seen them in ancient times and in the US as far back as the revolutionary era. What we've seen in the last 20 years is distinctive in the scope, breadth, and what I would call the corporatization of the industry.

They're also doing other things. They're clearing land mines. They're training local militaries and police. They're also guarding military bases. They're guarding convoys. They're guarding diplomatic personnel. They're gathering intelligence. US contractors help with the logistics and the maintenance of unmanned aerial vehicles, commonly referred to as drones. They help sift through the intelligence feeds that are collected from those vehicles. US contractors have even conducted interrogations, although US policy now forbids it. In fact, the Senate Intelligence Committee Report that was produced after the interrogation abuses post 9/11 notes that at a certain point in time, over 80% of the interrogators were contract interrogators.

Currently, the US forbids contractors from doing offensive combat, but there are companies working for other countries around the world that are doing that. For example, the Wagner Group, which is a company associated with Russia, does get involved in direct combat activities.

VI: When you say the phenomenon of private military contractors has been around for a long time, do you conflate contemporary PMSCs with what we used to call mercenaries?

Laura Dickinson: Yes, it's interesting, the term mercenary, historically, is associated with somebody who is hired to fight alongside a military. They might be paid by a government, but they're fighting for the money and not to do service to their country. When we talk about private contractors, we often use the term mercenary - a term which carries a lot of stigma. It's still in use today. Many people use that term, but the contemporary PMSC industry, understandably, is really quite opposed to the term because of the stigma it carries.

US contractors have even conducted interrogations, although US policy now forbids it. In fact, the Senate Intelligence Committee Report that was produced after the interrogation abuses post 9/11 notes that at a certain point in time, over 80% of the interrogators were contract interrogators.

The attempts to define mercenaries in international law have been largely unsuccessful. There was an attempt to ban mercenaries that also largely failed. There were treaties that were drafted, but they were not widely joined by many countries. Part of the problem, again, was how do you define a mercenary, exactly? The effort at that time revolved around the intent of the person performing the services, which is just very hard to prove given the complex and varied contexts in which a so-called mercenary operates.

VI: During the Cold War and in Vietnam, were there military contractors working with the Defense Department or the CIA? There were lots of special operations, clandestine operations, where the United States didn’t really want military personnel involved but they needed combat trained operatives.

Laura Dickinson: There were contractors operating in Vietnam. I would draw a distinction between contractors working for the Defense Department and those working for the CIA doing clandestine work. Defense Department contractors were doing mostly logistics work. What's different between then and now, is the much broader range of functions that Defense Department contractors perform, such as the functions that I mentioned above, along with the range of activities that State Department contractors perform as well. In terms of the clandestine contractors, obviously, it's a lot harder to do research on that both historically and today.

With respect to Vietnam, there's been a lot that's been revealed about the role of CIA contractors doing a variety of things. Overall, I would say that it was less corporatized. It was less of a global industry, and that is something that has changed today.

The term mercenary, historically, is associated with somebody who is hired to fight alongside a military. They might be paid by a government, but they're fighting for the money and not to do service to their country... Many people use that term, but the contemporary PMSC industry, understandably, is really quite opposed to the term because of the stigma it carries.

VI: Were the people who started and grew these private security companies primarily ex-military - particularly those with special operations training and expertise?

Laura Dickinson: For some of them, that's the case. But it's a really broad industry. The path for some of the military logistics companies, which again, are much older-- they don't necessarily have that link to special forces. You may be thinking of the company formerly known as Blackwater, which was started by Erik Prince, the former Navy Seal. Some other private security companies definitely have that link, but certainly not all of them.

I would date a significant shift in the growth and expansion and the breadth of this industry to the end of the Cold War and then the post-9/11 war. At the end of the Cold War, you saw an expansion of the ideology of privatization: the notion that the private sector can do things better than the government. In the United States, this ideology took hold of our politics, with respect to domestic governmental functions in the '80s and early '90s. By the late '90s, at the end of the Cold War, during the Clinton administration, we saw this ideology spilling over into foreign affairs as well. 

The attempts to define mercenaries in international law have been largely unsuccessful.

I call it an ideology because it was not always backed by empirical data. It's true that sometimes the private sector can do a better job than the government at lower cost, but this idea was often trotted out as a truth when there wasn't empirical support for it. It was so popular, though, that it was just politically easier for Congress to fund activities that were going to be performed by contractors rather than full-time government employees. Politically it was a time when Congress didn't want to be seen as increasing the size of government. That applied to foreign affairs functions as well. Funding government contracts created the illusion that the government was not growing in size.

Another dynamic that really catalyzed the expansion in the use of contractors was the fact that privatization reduces the political costs of war. Contractor deaths, for example, just don’t count in the same way in the public psyche. Again, going back to the late '90s, the Clinton administration wanted to do humanitarian operations in the Balkans, and there wasn't clear political support for that. While the US military did do some work there, there was a huge political incentive to do work with contractors without seeming like we were increasing our military footprint.

At the end of the Cold War, you saw an expansion of the ideology of privatization: the notion that the private sector can do things better than the government.

Then, during the post-9/11 wars in Afghanistan and Iraq, we saw a huge increase in the numbers of contractors, with about 260,000 there at the high point of those conflicts in 2010. That was a ratio of contractors to troops of about one-to-one.

VI: The move toward privatization is this notion, ideology, as you say, that contractors can do things better and cheaper. Paul Verkuil has written about how bureaucracies throughout the government were gutted and lost all of their institutional knowledge and expertise due to privatization. It creates a revolving door with contractors coming in and then leaving often in a matter of months. There is lost institutional experience but also of significance is the lack of accountability. 

Laura Dickinson: Yes, that is a huge factor in the foreign affairs area as well. There is often high turnover in the contractor workforce, and so institutional knowledge is lost. The role that they play in training, for example, training police, training local officials from the Balkans to the post 9/11 conflicts, and beyond is an example of that. 

Another dynamic that really catalyzed the expansion in the use of contractors was the fact that privatization reduces the political costs of war. Contractor deaths, for example, just don’t count in the same way in the public psyche.

This also creates a problem of accountability.  In the military you have trained career military lawyers who are institutionally and professionally committed to the values of international humanitarian and human rights law.  And those lawyers generally have a seat at the table when operational decisions are made. Not so with contractors.

You mentioned Afghanistan at the outset of this interview. I think it's a really important point, and it goes to this notion that using contractors can reduce the political costs of war. We're seeing right now the decision by President Biden to bring all troops home from Afghanistan. And a question will be whether the new administration will also bring contractors home or will instead leave contractors there to maintain a US presence without appearing to do so.  There is some sign of the latter.

Currently, we've got 3,500 troops there, if you include the secret ones, and we've got 18,000 contractors. We've been pulling troops back, but the number of contractors has remained fairly steady. The numbers are far below what it was at the high point, but it's still pretty high, and the ratio of contractors to troops is actually increasing. There are many more contractors than troops right now.

During the post-9/11 wars in Afghanistan and Iraq, we saw a huge increase in the numbers of contractors, with about 260,000 there at the high point of those conflicts in 2010. That was a ratio of contractors to troops of about one-to-one.

A lot of the reporting on the troop numbers in Afghanistan forgets to mention the contractor numbers, and that's exactly the point about the fact that political cost is different. It will be interesting to see whether the Biden administration pulls back on the number of contractors or feels pressure to expand them.

VI: When you say we have these 18,000 or so contractors currently in Afghanistan, are those contractors that the United States is paying for? There is also a whole other cadre of contractors working for the Afghan government, or maybe some warlords, so there are probably many more than just the 18,000 who are on the US payroll.

Laura Dickinson: Absolutely. I'm referring to just the number that are working for the US government.

VI: Will many of the contractors in Afghanistan just change their employment so instead of getting their checks directly from the US treasury, they'll get paid by the Afghan government with funds the US provides for post-withdrawal security?

Laura Dickinson: The US has said it's going to bring all troops home. It hasn't said it's going to bring all contractors home. I think this is one of the questions that I'm raising, will the Biden administration pull the contractors back or not? What we're seeing as the US government, under the Trump administration, and now under Biden is bringing troops home, is that the ratio of contractors to troops is going up. I don't think it's clear what the new administration is going to do.

In the military you have trained career military lawyers who are institutionally and professionally committed to the values of international humanitarian and human rights law. And those lawyers generally have a seat at the table when operational decisions are made. Not so with contractors.

Even before we get to the question of whether the other entities might hire them, again, I think it's unclear whether the Biden administration is even going to reduce the number of contractors hired by the US directly; they can say they're bringing home troops, but still have a presence there through these contractors.

VI: What pot of government money pays for these contractors? Are they discretionary funds coming out of the Pentagon budget? Does Congress have to authorize special funding?

Laura Dickinson: Congress has the power both to appropriate funds that will be used for contractors and to reduce the funding, but typically the decision to award any particular contract is made within the agencies.

I should speak more about accountability and oversight issues, which are obviously very important with regard to these contractors. Congress plays a crucial role in accountability and oversight, both through funding and in other ways. And Congress has been doing more oversight in recent years. For example, Congress requires the US government to do a census of contractors in the Centcom area, which provides important transparency. That's where I got the numbers of US contractors in Afghanistan I mentioned above. About ten years ago, Congress established the Commission on Wartime Contracting, which studied the growing use of PMSCs and recommended reforms.  And Congress funds the Special Inspector General for Afghanistan Reconstruction, which investigates allegations of waste, fraud, and abuse by contractors in Afghanistan.

About ten years ago, Congress established the Commission on Wartime Contracting, which studied the growing use of PMSCs and recommended reforms. And Congress funds the Special Inspector General for Afghanistan Reconstruction, which investigates allegations of waste, fraud, and abuse by contractors in Afghanistan. Congress could also do more. For example, Congress could place limits on the number of contractors or prohibit the use of contractors for certain functions.

Congress could also do more.  For example, Congress could place limits on the number of contractors or prohibit the use of contractors for certain functions. I will say, though, that the oversight is a lot harder on the clandestine side, because Congress exercises more scrutiny and control over DOD than the CIA.

VI: We have the experience of twenty years of contractors operating in Afghanistan and we also have had contractors in Iraq for many years. These are basically decades of failure: whatever these contractors were supposed to accomplish in terms of peacebuilding, training police to maintain order, creating a viable military to take over after US troops leave, there has been a remarkable lack of success. What kind of oversight is needed to make the work of contractors more transparent and effective? 

Laura Dickinson: I think these bigger picture failures that you are highlighting are really important. In addition to the things that you've mentioned, there are also significant issues of waste, fraud, and abuse. In 2011, the Commission on Wartime Contracting in Iraq and Afghanistan found tens of billions of dollars of waste of US taxpayer money. 

There are also other kinds of abuses as well, and that's actually been the focus of much of my research.  For example, when governments hire PMSCs, it can threaten the public values that are written into human rights law, international humanitarian law, and frankly, some of our domestic laws as well, things like protections for human dignity, restrictions on the use of force, particularly the use of lethal force, and the prohibition on torture. One of the real challenges when you have all this outsourcing is that the international laws, and frankly, the domestic laws as well, were written in an era when you had government actors doing these functions.

In 2011, the Commission on Wartime Contracting in Iraq and Afghanistan found tens of billions of dollars of waste of US taxpayer money.

These laws and restrictions don't extend as clearly to contractors. There are certain gaps in how they apply, and then the enforcement mechanisms don't work as well. A lot of my work, like my book Outsourcing War and Peace for example, has been exploring how we can make these public values apply more effectively to contractors. What can we do to strengthen these mechanisms of accountability and oversight?

VI: We have the well-known cases of prisoner abuse by contractors at Abu Ghraib as well as the killing of civilians in Nisour Square by armed Blackwater guards. These were public relations nightmares for the contractors but not as much in terms of repercussions. Through a long legal process in US courts, with the government defending the Blackwater employees, several individuals were convicted of manslaughter only to have President Trump extend a pardon. How can accountability for the actions of contractors be made more robust in an atmosphere of this kind of impunity?

Laura Dickinson: Let me elaborate a bit on these cases. I think those two incidents are really significant because they highlight the role of contractors in serious abuses, serious violations of these public values, and serious abuses of international norms. At Abu Ghraib prison in Iraq, where detainees were tortured, some of that torture was perpetrated by US troops. And some of those troops were held responsible in the military justice system. But contractors working as interrogators and translators also perpetrated some of those abuses. And those contractors were not held accountable to a comparable extent because the accountability mechanisms weren't designed to deal with the contractors. 

When governments hire PMSCs, it can threaten the public values that are written into human rights law, international humanitarian law, and frankly, some of our domestic laws as well, things like protections for human dignity, restrictions on the use of force, particularly the use of lethal force, and the prohibition on torture. One of the real challenges when you have all this outsourcing is that the international laws, and frankly, the domestic laws as well, were written in an era when you had government actors doing these functions.

In Nisour Square, as you mentioned, contractors who were providing security to US diplomats fired into a crowd and killed 17 Iraqi civilians in 2007. And you did have an accountability process that played out: the US civilian criminal justice system applies extraterritorially to some crimes under the Military Extraterritorial Jurisdiction Act. It was challenging; even though the law technically applied to them, the investigation process overseas is really challenging.  Due to flaws in the investigative process, it took many years to actually provide meaningful accountability. Then Trump pardoned the security guards who were convicted, which created a whole different set of problems, by sending a signal that the United States doesn’t care about accountability for war crimes.

The underlying issue is that these laws do not necessarily clearly cover contractors. Take the Military Extraterritorial Jurisdiction Act which covers either Defense Department contractors or contractors supporting the Department of Defense mission who are operating overseas. The US courts said the law covered the Blackwater contractors who were working for the State Department at Nisour Square. But there are still big gaps there. Let's say a contractor is working for the State Department and commits a crime, such as a murder, and the contractor is not as clearly working in support of a Department of Defense mission.  That contractor is not clearly covered by that statute as it is written today. There's a bill which has been languishing in Congress for more than a decade, the Civilian Extraterritorial Jurisdiction Act, which would close that gap. It actually has pretty broad bipartisan support, but it has never passed.

VI: When contractors are working overseas for American agencies, are they given any kind of immunity? If they commit a crime in the course of their duties in the country where they're posted, do they have immunity? I believe soldiers are covered under whatever Status of Forces Agreement (SOFA) is negotiated between a host country and a foreign nation stationing military forces in that country.

I conducted a series of interviews with military lawyers who were stationed in Iraq and Afghanistan during the high points of the conflicts there, and they were just throwing up their hands in frustration with these contractors. At the time, for example, the security contractors would come through an area, and the commanders responsible for the area wouldn't even know they were coming. Sometimes the contractors would shoot at people. It was very unclear how the military could control them. But the US military would get blamed for the contractors’ actions.

Laura Dickinson: In some cases, they have received immunity. That's been a source of negotiation and renegotiation with a lot of countries where they're operating. 

Another important accountability and oversight issue has to do with the way the contracts are written. The contractors must follow their contracts. That's a difference from US soldiers, who must follow orders and are subject to the chain of command. Contractors are not. This is one reason why accountability and oversight has been a huge problem – contractors are managed and controlled in a very different way.  I conducted a series of interviews with military lawyers who were stationed in Iraq and Afghanistan during the high points of the conflicts there, and they were just throwing up their hands in frustration with these contractors. At the time, for example, the security contractors would come through an area, and the commanders responsible for the area wouldn't even know they were coming.  Sometimes the contractors would shoot at people. It was very unclear how the military could control them. But the US military would get blamed for the contractors’ actions.

In the wake of these abuses, there have been improvements, particularly, for security contractors. One of the things I've advocated for has actually happened, which is that the contracts themselves do a much better job now in spelling out the rules and standards that contractors have to follow, particularly with respect to the use of force.

In addition, private security contractors who get contracts with the Defense Department or the State Department, now have to demonstrate that they follow really quite good business management standards for training on the use of force. This isn't perfect, but it is an improvement.

A number of actors in the industry have actually supported these reforms, which might seem surprising. They know the reforms will  protect the legitimacy of their industry. They see that their future contracts depend on it.

At the international level, we've also seen a lot of activity to provide better oversight of contractors. In 2008, governments, NGOs, and the industry came together to set forth some quite good best practices guidelines for contractors and governments working with contractors in conflict zones. These best practices are set forth in the Montreux Document. In addition, the Montreux Document Forum is a group of states that comes together periodically to discuss implementation of these standards.

At the international level, we've also seen a lot of activity to provide better oversight of contractors. In 2008, governments, NGOs, and the industry came together to set forth some quite good best practices guidelines for contractors and governments working with contractors in conflict zones. These best practices are set forth in the Montreux Document. In addition, the Montreux Document Forum is a group of states that comes together periodically to discuss implementation of these standards.

There's also an international code of conduct for the private security companies themselves and an association that monitors compliance. It's not perfect by any means, but it is a vast improvement over where we were 10 years ago. 

VI: It is encouraging to hear that PMSCs operating out of the United States and other jurisdictions have these best practices guidelines and will be monitored for compliance. But what about companies operating outside the Montreux Document?

Laura Dickinson: 

Yes, at the international level, the Montreux Document and accompanying Montreux Document Forum are really important in establishing best practices, at least with regard to the states that have joined. It is important to note that these are best practices that apply not just to countries that are employing contractors, but also to countries where  the contractors are operating, and also countries from which abor is being recruited. The labor market for this industry is global. For example, for the companies providing services to the US government under contract with the US government in Afghanistan, more than 50% of the individual workers are foreign nationals.

So, for Montreux countries we've seen huge improvements in accountability and oversight. It’s not perfect, but it is an improvement.

Even for countries that are not part of the Montreux Document and companies that come from those countries, we've seen big improvements for companies that are under contract with the US government, particularly those providing security. These might be companies that are not US companies. However, even if they are incorporated elsewhere, if they're entering into a contract with the US government, they must follow business management standards that include human rights and use of force training, and they are required to conduct investigations in the event of abuse allegations. So, for Montreux countries we've seen huge improvements in accountability and oversight. It’s not perfect, but it is an improvement. Other countries such as the UK have also adopted similar reforms. Of course, there are a lot of countries that haven't.

So to sum up, at the international level, there is an increase in soft law-type regulation, with countries adopting best practices and some states requiring those practices at the domestic level as well. There is a community of states that has committed to improve oversight and accountability of contractors. Now, Russia is not a part of this community, and there are other notable absences. Interestingly, China is a part of it.

There is an increase in soft law-type regulation, with countries adopting best practices and some states requiring those practices at the domestic level as well. There is a community of states that has committed to improve oversight and accountability of contractors. Now, Russia is not a part of this community, and there are other notable absences. Interestingly, China is a part of it.

VI: So does Russia actively support and operate private military units outside the Montreux best practices framework?

Laura Dickinson: Yes, Russia, I think is a hugely destructive force in this regard. UAE is also. Russia, interestingly, bans private military and security companies domestically. They're illegal in Russia, as a matter of formal law, and individual contractors can be criminally punished.  But nonetheless, PMSCs incorporated outside Russia but affiliated with Russia have been growing in importance. We saw Russia using them in the Ukraine, Syria, and then throughout Africa, Libya, Congo, and beyond. 

The Wagner Group is the most infamous example. It is run and staffed by Russian nationals, even though the Russian government denies that they are coordinating their activities. Yet they are training with Russian troops. They are using Russian military equipment. They reportedly earn medals in the same way that Russian military earn medals.  And what is significant about the Russian-backed contractors is that they are going much further in the types of functions that they are performing.  For example, they are deployed in a broader range of use of force roles, including apparently what we might call offensive combat.

Russia is able to deny involvement when it wants to, but get the benefits of the work that the contractors are doing. It's very concerning.  And there is little accountability or oversight when these contractors commit abuses, for example, if they kill civilians.

The Wagner Group is the most infamous example. It is run and staffed by Russian nationals, even though the Russian government denies that they are coordinating their activities. Yet they are training with Russian troops. They are using Russian military equipment. They reportedly earn medals in the same way that Russian military earn medals.

So how should the international community deal with this? The focus of my work has really been on how we can provide better oversight and accountability of contractors given that I think it's too late to ban them completely. On the other hand, I think that it may be time for the global community to try to draw boundaries around some functions the contractors are performing as illegitimate.

As I mentioned, the international effort to ban so-called mercenaries failed. The legacy of this can be seen at the United Nations where there's still a working group on mercenaries and just the very name of the UN group is a problem and a barrier to meaningful work, for example, on a new treaty. There is also a political problem because Cuba is one of the key backers of the group.

The working group has done some good work on reporting on the practices of contractors around the world, but they're not getting a lot of traction in terms of coming up with a new treaty framework. Thus far, the United States has not supported a new treaty but partly because the energy for that treaty was coming out of this working group. So I think the working group has too much baggage to be the site of meaningful reform at this time.

It may be time for the global community to try to draw boundaries around some functions the contractors are performing as illegitimate.

But outside the working group, I think the moment could be ripe for states to come together to draw boundaries around certain functions that contractors are performing. The United States, as a matter of policy, bans contractors from doing offensive combat. So it’s actually in the US interest to support a legal ban at the international level of contractors doing offensive combat. Now the tricky thing is that offensive combat is not a category that is recognized in international law.  Another approach would be to use a category that is recognized: taking a direct part in hostilities.  A lot of European countries and some others as well would probably say that contractors should not do anything that would constitute taking a direct part in hostilities as a matter of international humanitarian law.  That might be a little broad for the United States, but I think the positions are close enough that you might be able to get agreement on that.

VI: Should there be a ban on contractors' use of force?

Laura Dickinson: I think a use of force ban would be too broad. The United States would never get on board with that because of the dependence that the United States has, and frankly, the UK has, on security contractors. I think we are now dependent on them for certain functions. The line that the US draws between offensive and defensive action is not one that's found in international humanitarian law. That's why other countries are more comfortable with the line that does exist in international humanitarian law - that line of, are you taking a direct part in hostilities or not? It's not a use of force ban, but it would be a ban on the use of force for those countries that are taking a direct part in hostilities.

The international effort to ban so-called mercenaries failed. The legacy of this can be seen at the United Nations where there's still a working group on mercenaries and just the very name of the UN group is a problem and a barrier to meaningful work, for example, on a new treaty.

I think there is a potential for coming together among certain like-minded countries around a definition that could be workable. It would be hard. Even if you got it, it would be hard to enforce, but I think it could help delegitimize the growing role that companies like Wagner are playing around the world.

VI: In addition to looking at the increasing role of PMSCs, what about their growing capabilities? What kind of military equipment are these PMSCs allowed to deploy? There were recent stories of Erik Prince's group coming into Libya with armed aircraft and lots of armor to assist one of the warring factions there.

Laura Dickinson: With regard to the legal framework, there are important legal rules, both domestically in the United States and at the international level. The U.S. Arms Control Export Act and accompanying regulations, which are known as ITAR (the International Trafficking and Arms Regulations) limit the export of military equipment from the United States. Any company seeking to export equipment of certain types must obtain a license. There are also some very specific laws and regulations that pertain to particular countries under sanctions regimes like Russia. Then, at the international level, there are also sanctions, for example, such as the UN sanctions that prohibit bringing arms into Libya.

I think the moment could be ripe for states to come together to draw boundaries around certain functions that contractors are performing. The United States, as a matter of policy, bans contractors from doing offensive combat.

With respect to your question about Erik Prince, I think you're referring to a UN panel that recently concluded that Prince was in violation both of the UN restrictions and also the US restrictions. He, along with UAE companies, reportedly participated in an effort where they were supporting rebels trying to overthrow the internationally-backed Libyan government, in an operation known as Project Opus. So, as you can see, even though there are both domestic and international laws that are designed to address this issue, enforcement is a challenge.

VI: There was also recently a group of Chad insurgents who were fighting for one of the warring factions in Libya but who had been trained and equipped by the Wagner Group. When the fighting in Libya subsided because of a peace agreement, this group turned around and staged an incursion on the Chad border that killed Idriss Deby, the Chad president, and precipitated a crisis. Unleashing a dangerous insurgency seems like an egregious act by a military contractor? 

Laura Dickinson: Yes, I think among other things, it's another illustration of the really dangerous role that Russia is playing in this area with the Wagner Group.

VI: We all realize that there are many different actors operating for good and bad within cyber arenas. Some of it is just cyber hacking but there are accounts of hackers having arrangements with governments assisting in their cyber wars/attacks.  What do you think is the level of involvement of contractors in cyberspace?

We've seen increases in oversight and accountability of security contractors, but now we have this whole other realm of cyberspace where there's much less accountability and oversight at the domestic level or at the international level.

Laura Dickinson: I think this is a really important issue. At the outset I would say that I wouldn't necessarily call it war because whether or not the cyber activity crosses the armed conflict threshold is itself a tough legal question. A lot of times it doesn't. There's a lot of debate about when, and under what circumstances, cyber operations would cross various thresholds in international humanitarian law and the jus ad bellum, which is the body of law that governs the resort to force. A lot of people speak about these cyber actions taking place in a gray zone. That’s because it is murky as to what legal regime is actually governing. 

Certainly, there's a lot of cyber activity within ongoing armed conflicts as well. There are also a lot of cyber operations going on below the armed conflict threshold. And there are also a lot of operations that are not only below the armed conflict threshold in international humanitarian law but also fall below the use of force threshold in the jus ad bellum. And there are often contractors involved. Even when we're talking about governmental actors, attribution is hard in the cyber realm. When you introduce the role of non-state actors, including contractors, attribution becomes even more challenging.

There are these whole other realms, whether it's intelligence contractors doing cyber work, or whether it's the rise in contractors doing direct combat for countries that are not part of the Montreux Document Forum and are not interested in these best practices, where there are huge challenges.

When we're dealing with clandestine work, oversight is always harder and more complicated. This is just a really challenging area. But I do think it's one that does require more oversight. We've seen increases in oversight and accountability of security contractors, but now we have this whole other realm of cyberspace where there's much less accountability and oversight at the domestic level or at the international level.

VI: Laura, coming to the end of our time. We've covered a lot of ground and learned a good deal about PMSCs and their operations. Going forward, you see a challenge in terms of understanding what contractors are doing in the world today, who they're working for, defining what their functions actually are, and maintaining a process of oversight and control as you described being the purpose of the Montreux Document.

Laura Dickinson: I would say, just as we've seen a rise in the use of contractors over the last 20 years, we have seen a rise in awareness, oversight and accountability in certain areas, specifically with respect to security contractors. I'm not suggesting that it's perfect, but I do think we have seen improvements in that domain - certainly, for countries like the United States, the UK, other countries that are part of the Montreux Document Forum and who have adopted policies at the domestic level.

That being said, there are these whole other realms, whether it's intelligence contractors doing cyber work, or whether it's the rise in contractors doing direct combat for countries that are not part of the Montreux Document Forum and are not interested in these best practices, where there are huge challenges.

We need a permanent inspector general that would have a mandate to look at all contractors that the US government is employing. Then at the international level, I would say it's time to move beyond best practices at the Montreux Document Forum focused predominantly on security contractors, to other categories of contractors, to really looking at whether it's time for a new treaty framework to draw the boundaries around legitimate and illegitimate uses of contractors.

Also, there are considerable political incentives for states to use these contractors as I mentioned, because they reduce the political costs of armed conflict and other foreign involvement. Certainly for the Biden administration, there's a huge political incentive to keep contractors on the ground in Afghanistan, even as we bring our troops home.

VI: One final question - is there a role for whistleblowers in the monitoring of contractors? Afterall Edward Snowden worked for an NSA contractor, Booz Allen Hamilton.

Laura Dickinson: Congress has done a really good job improving oversight of security contractors. But I think they need to expand into other areas. There is an Inspector General for Afghanistan Reconstruction. That office has provided a really important spotlight on what contractors are doing, on whether abuses are happening.

I personally think we need a permanent inspector general that would have a mandate to look at all contractors that the US government is employing. Then at the international level, I would say it's time to move beyond best practices at the Montreux Document Forum focused predominantly on security contractors, to other categories of contractors, to really looking at whether it's time for a new treaty framework to draw the boundaries around legitimate and illegitimate uses of contractors.

VI: We can say that is a constructive outlook and we like to end our conversations on a positive note. Let us hope that the kind of oversight you're talking about, the role of an inspector general and an international treaty framework, can provide transparency and effective control. We certainly need to understand just what role contractors are playing in the dynamics of foreign policy these days.

Laura Dickinson: Thank you so much for a rich conversation, John.

 
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Laura A. Dickinson is the Oswald Symister Colclough Research Professor of Law and Professor of Law at The George Washington University Law School. Her work focuses on national security, human rights, the law of armed conflict, and foreign affairs privatization. She has authored numerous articles and book chapters, including scholarship that has appeared in the American Journal of International Law, the Yale Journal of International Law, the NYU Journal of International Law and Politics, the William & Mary Law Review, the Emory Law Journal, and the Southern California Law Review.  She also contributes regularly to the national security blog, Just Security. Professor Dickinson’s prizewinning book, Outsourcing War and Peace, published by Yale University Press, examines the increasing outsourcing of military and security functions, considers the impact of this trend on core public values, and outlines mechanisms for protecting these values in an era of privatization. Professor Dickinson has engaged with multiple think tanks and professional organizations that address problems at the intersection of foreign policy and both international and domestic law.