Rules of Engagement: The Evolution and Regulation of

Corporate Mercenaries and Private Military Companies

by

Christopher J. Castillo

1

I. INTRODUCTION

The business of blood, mercenarism, has been dated back as early as the twenty third

century B.C.E. when the Egyptian Pharaoh Pepi I recruited Nubians in modern day northern

Sudan to form a standing mercenary force known as the Medjay.1 The use of the Medjay in later

centuries enabled Egypt to become the great empire that it was. Id. Today mercenarism has

evolved into a new form since the days of ancient Egypt. This new form is not too different from

the ancient Medjay; it is still an organized group fighting on behalf of a nation or people in

exchange for profit. This new form of mercenary organization is known as the corporation or

more commonly as the ―private military company.‖

Unlike the times of ancient Egypt, modern day society has also evolved to have human

rights, international law, and advanced technology. However, it is not just mercenarism and

society that has evolved, but corporations have also evolved in their short existence. Unlike the

early days of corporations, when corporations such as the East India Company existed in the

1600‘s, corporations have evolved to have personhood, limited liability for their owners and

stockholders, and can last in perpetuity.2 This combined with recent ―de-regulation‖ of

corporations has led to a ripe moment in history starting in the mid to late 1980‘s through the

early 2000‘s, creating a boom in private military companies (PMCs), or corporate mercenaries.3

Now the United States and the world is struggling to keep up in regulating these corporate

mercenaries after the last decade has seen human rights violations and multiple criminal offenses

committed by corporate mercenaries. Id.

1 See generally, Kate Liszka, dissertation, ―We Have Come to Serve Pharaoh‖: A Study of the Medjay and Pangrave

Culture as an Ethnic Group and as Mercenaries from c. 2300 BCE until c. 1050 BCE PhD Dissertation, University

of Pennsylvania. 2 See generally, Thom Hartman, Unequal Protection: How Corporations Became ―People‖ – And How You Can

Fight Back (2d ed. 2010). 3 Jeremy Scahill, Blackwater: The Rise of the World‘s Most Powerful Mercenary Army (rev. ed. 2008).

2

This article will discuss the history of mercenary organizations and how they have

evolved into the form of corporations. Additionally, this article will give an overview of U.S.

law and U.S. agency law regulating and affecting corporate mercenaries, as well as international

law affecting and regulating mercenaries and corporate mercenaries.

II. A BRIEF HISTORY OF MERCENARY ORGANIZATIONS AND

THEIR TRANSITION TO PRIVATE MILITARY COMPANIES

As aforementioned, the earliest recorded mercenary organizations was the Medjay, but

they were just an early example of numerous mercenary organizations throughout human

history.4 A later example is the Varangians who were mercenaries for the Byzantine Empire

starting as early as 911 CE.5 They quickly developed a reputation as being ―noble savages.‖ Id.

The Varangians later became known as the Varangian Guard as they became the official guard of

the Byzantine Emperor. Id. Empires and nations are not the only historical entities to use

mercenaries, a mercenary force that has been in use since the 15th

Century is the Swiss Guard

who are also notably employed by the Pope in Vatican City for his guard since 1506.6

Corporate mercenaries date back to the first corporations. In fact some wings of the

world‘s first corporations were the world‘s first corporate mercenaries; primarily the companies

known collectively as the East India Companies who were given royal charters under several

different European governments throughout the early half of the 17th

century.7 One prime

example was the Dutch East India Company, established in 1602 by a Royal Charter of the

4 Liszka, supra note 1.

5 See generally, Ian Heath and Angus McBride, Byzantine Armies 886–1118 (1979).

6 David Alvarez, The Pope's Soldiers: A Military History of the Modern Vatican (2011).

7 John I. Israel, The Anglo-Dutch Moment: Essays on the Glorious Revolution and its World Impact (1991).

3

Dutch government, was the world‘s first multi-national corporation and the first company to

issue stock; the company‘s main goal was to monopolize spice trade around the Cape of Good

Hope and to gain Netherlands‘ independence from Spain. Id. The Dutch government granted the

company the rights to build forts and maintain armed forces. Id. By 1619 the company was able

to defeat the British fleet near the Cape preventing them from trading and largely displaced the

Portuguese from trading in the area. Id. They were also able to conquer the island of Java and

other African coastal islands. 8

They played a major role in fighting for independence from

Spain which was finally achieved in 1648, and in 1652 they began colonizing South Africa,

establishing Cape Town. Id. By 1669 the Dutch East India Company was the world‘s richest

corporation with 150 merchant ships, 40 warships, 50,000 employees, and an additional 50,000

soldiers. Id. They later played major roles in fighting in the Third Anglo-Dutch War, the Battle

of Colachel, the Travancore-Dutch War, and the Fourth Anglo-Dutch War before the corporation

was dissolved in 1799. Id.

At the end of the Baroque era and the end of the 18th

century, world governments began

to change policy on corporations; issuances of Royal Charters and other charters began to

decline.9 In the United States the Supreme Court case Dartmouth College v. Woodward, 17 U.S.

518 (1819), gave rise to the today‘s corporation. Woodward settled the nature of public versus

private charters by holding that the charter granted by the British Crown to the trustees of

Dartmouth College in 1769 (before the existence the U.S. government and the State of New

Hampshire) is a contract within the meaning of Art. 1. S. 10. of the U.S. Constitution (The

Contracts Clause) which declares that no State shall make any law impairing the obligation of

8 Id note 7.

9 Hansmann et al., The Anatomy of Corporate Law: A Comparative Functional Approach (2004).

4

contracts, thus preventing the legislature of New Hampshire from forcing Dartmouth into

becoming a public institution. Id. In the United Kingdom the Joint Stock Companies Act was

passed by Parliament in 1844 which allowed companies to form on their own instead of having

to be formed by a Royal Charter.10

This policy change led to the end of official corporate private

militaries. Id. The last of official corporate private military created by a royal charter to form in

Europe was the Atholl Highlanders, established in 1839 as a purely ceremonial private army and

not as part of the British Army; it remains as Europe‘s only remaining private army.11

After this

era only private security companies, who served domestically, tended to exist, and modern

nations did their own fighting with their own armed forces. The Pinkerton National Detective

Agency was an example of such a private security company, they were notably hired by

Abraham Lincoln as his personal bodyguard during the civil war (before the existence of the

Secret Service).12

They were also hired by the newly formed Department of Justice as a

―national police agency‖ in 1871 when their budget was insufficient, and they were employed by

the federal government to break up strikes (acting like a national guard) during the early days of

the industrial revolution before the advent of worker‘s rights. Id.

There was one instance where the United States did officially hire mercenaries, but the

mercenaries used, although not acting as members of the military, were also not employees of a

corporation. In 1941, before the U.S.‘ entrance into World War II, feeling pressure to do

something about Japan‘s treatment of the Chinese, President Franklin D. Roosevelt organized the

10

B.C. Hunt, The Development of the Business Corporation in England, 1800–1867 (2000). 11

See Atholl Highlanders converge on Blair Castle for 2010 Celebrations, available at, http://www.atholl-

estates.co.uk/news-

detail.cfm/news_ID/28/title/Atholl%20Highlanders%20converge%20on%20Blair%20Castle%20for%202010%20C

elebrations. 12

Ward Churchill, From the Pinkertons to the PATRIOT Act: The Trajectory of Political Policing in the United

States, 1870 to the Present (2004).

5

American Volunteers Group to attack the Japanese from the sky; they were known as the Flying

Tigers.13

They were all recruited from the military, but Roosevelt was careful to ensure they

were not official combatants of the United States. Id. They were equipped with U.S. military

fighters and paid $600 - $750 per month with an additional $500 for every Japanese aircraft they

destroyed. Id. The American Volunteers Group was terminated after the U.S.‘ entrance into the

war. Id.

Private security companies were just one leg of what later evolved into the modern

private military company. During World War II the United States saw the largest mobilization

of resources for a war than all of its previous conflicts combined.14

After the war, the United

States never de-mobilized with the advent of the Cold War, this created a U.S. appetite for

military resources and technology, termed by President Eisenhower as the Military-Industrial

Complex. Id. Then in the 1970‘s the government became interested in de-regulation and

privatization of services mainly through the efforts of two Washington ―think tanks;‖ the

Brookings Institution and the American Enterprise Institute.15

After the 1970‘s the stage was

finally set for the first real U.S. corporate mercenaries.

One company worth mentioning did ―bridge the gap‖ so to speak during the decline of

imperialism and the end of the mercenaries of the East India Companies, and the beginning of

our current corporate mercenaries; the British South Africa Company. It was formed in 1889

modeling itself after the British East India Company, which had just been dissolved by the

13

Daniel Ford, Flying Tigers: Claire Chennault and His American Volunteers 1941-1942 (2007). 14

Michael S. Sherry, In the Shadow of War: The United States since the 1930s (1995). 15

Sharon Beder, The Electricity Deregulation Con Game (2003).

6

British Parliament in 1874,16

to facilitate colonialism in central and southern Africa. The

company formed a subsidiary in 1899 called the British South Africa Police.17

It served as a

mounted infantry force that sold protection to British colonial companies in central and southern

Africa including its parent company. Id. The British South Africa Police were ―hired‖ to and

took part in the First Matabele War, the Second Matabele War, the Second Boer War, World

War I, World War II, and the Rhodesian Bush War. Id. After the country of Zimbabwe gained

its independence in 1980, the British South Africa Police were ―de-privatized,‖ and became the

Zimbabwe Republic Police who serve as the country‘s national police force today. Id.

Finally, with the mounting conflicts in the Middle East, the continuing threat of

Communism, the continued mobilization of the military from World War II and Vietnam, along

with corporate de-regulation and government privatization in the U.S., security companies began

to evolve in the 1980‘s from your average guard service for your neighborhood bank or

government building to more quasi-military.18

In addition to security companies evolving,

established military support companies began expanding from just providing supplies and

services like ship building, to armed guard and military training services to collect on newly

emerging government contracts for military training and other quasi-military services. Id. In

1983 after the U.S. Embassy bombing in Beirut, Lebanon, the State Department first resorted to

using contractors to provide perimeter security to diplomatic and consular security posts around

the world. 19

Then in 1994 the State Department‘s Bureau of Diplomatic Security first used a

private military company, MVM, Inc., to help protect Haitian President Jean-Bertrand Aristide as

16

See The East India Stock Dividend Redemption Act (36 & 37 Vict. C. 17). 17

P. Gibbs and H. Phillips, The History of the British South Africa Police (2000). 18

Scahill, supra note 3. 19

Congressional Research Service Report for Congress, Private Security Contractors in Iraq: Background, Legal

Status, and Other Issues (2008), at 6-7.

7

he returned to Haiti from the U.S. after he was exiled from a military coup d‘état. Id. This was

followed with the use of private military companies in Bosnia, Israel, Afghanistan, and most

recently, Iraq.20

After the Bosnian conflict, U.S. security service contracts began to rise and with

them came higher demands for expertise, which security guard companies and converted military

supply companies at that time lacked. Id. This created a foothold for a third type of mercenary

corporation whom some regard as the most dangerous, and that is the mercenary corporation

started by former members of the military.21

The most famous example of course being

Blackwater founded by former Navy Seal Erik Prince.22

Some lesser known companies are

Custer Battles, LLC, founded by a former Army Ranger and an ex-CIA Intelligence Officer,23

and Triple Canopy, Inc. founded by several U.S. Army Special Forces veterans, including former

members of the Delta Force.24

III. INTENRNATIONAL AND UNITED STATES REGULATION

OF MERCENARIES AND PRIVATE MILITARY COMPANIES

A. Brief History of Law

The regulation of mercenaries and corporations are intertwined with the regulation of

corporate mercenaries as they are affected by both types of laws, so both will be discussed. The

first regulations of corporate mercenaries came about before the rise of the first corporations, the

East India Companies, and were in a sense a way of ―incorporating‖ organized mercenaries.

They were in the form of letters of marque and reprisal of which the earliest recorded use was in

1354 under an English statute referring to it as a ―licen[s]e granted by a sovereign to a subject,

20

Id. note 19, at 7. 21

Scahill, supra note 3. 22

Evan Thomas, The Man Behind Blackwater, Newsweek, October 23, 2007. 23

Eddie Curran, U.S.A.: Custer Battles Fights Back, The Mobile Register, April 27, 2005. 24

Triple Canopy Announces Change of Command: Lee Van Arsdale to Head Leading Security Solutions Company,

available at, http://www.triplecanopy.com/news-items/triple-canopy-announces-change-of-command.

8

authorizing him to make reprisals on the subjects of a hostile state for injuries alleged to have

been done to him by the enemy‘s army.‖25

Essentially a letter of marque issued by a sovereign

authorized a group of private individuals to go and capture enemy ships and their contents.26

When a private vessel was not operating under a letter marquee their acts were considered

piracy. Id. These laws even made it into the United States‘ Constitution near a half a millennia

later in Article I Section 8 stating in part that the ―Congress shall have Power to…grant Letters

of Marque and Reprisal…‖

B. Main Corpus of United States Law

The most stifling legislation that corporate mercenaries faced was the Anti-Pinkerton Act,

5 U.S.C. § 3108, which was passed by the United States Congress in 1893.27

The legislation was

in response to the above mentioned Pinkerton National Detective Agency.28

As mentioned

above the Agency contracted with the newly formed Department of Justice as an almost national

police agency. Id. The government also hired the Agency to break up strikes of laborers and

they became known as ―strikebreakers.‖ Id. The Ant-Pinkerton Act was passed in response to

the use of the Pinkertons in the Homestead strike in 1892.29

Ironically, the strike was a wage

strike against Carnegie Steel who at that time made the majority of its money as a defense

contractor providing steel to build U.S. Naval ships. The Pinkertons attempted strike-break at

Homestead ended badly with multiple wounded and several on each side dead.30

It was referred

25

Definition 1, of ―letter of marque,‖ Oxford English Dictionary, 2d ed. (Clarendon Press, 1989). 26

Donald Petrie, The Prize Game: lawful looting on the high seas in the days of fighting sail (1999). 27

The Anit-Pinkerton Act, 5 U.S.C. § 3108. 28

Churchill, supra note 12. 29

The Anit-Pinkerton Act, supra note 27. 30

See generally, Paul Krause, The Battle for Homestead, 190-1892: Politics, Culture, and Steel (1992).

9

to as a full on battle with fire fights and all. Id. The Pinkertons actually had to surrender to the

strikers and the State militia had to be called in. Id. The Ant-Pinkerton Act reads as follows:

―An individual employed by the Pinkerton Detective Agency, or similar organization,

may not be employed by the Government of the United States or the government of the

District of Columbia.‖31

This Act went largely un-interpreted for almost a century until the case of United States ex rel.

Weinberger v. Equifax, Inc., 557 F.2d 456, (5th Cir. 1977), cert. denied, 434 U.S. 1035 (1978).32

In this case a citizen sued Equifax, Inc. on behalf of the government, chiefly for violating the

Anti-Pinkerton Act. Id. Equifax, Inc. being the consumer credit reporting agency that it still is

today was hired by the U.S. to provide it with information on prospective employees. Id.

Equifax would generally accomplish this by the examination of public records and other public

files. Id. Weinberger claimed that Equifax was billing the U.S. for not just that, but for when

they would use investigative techniques ―similar‖ to those employed by a detective, thus they

were in violation of the Anti-Pinkerton Act as a ―similar‖ organization of the Pinkerton National

Detective Agency. Id.

The Fifth Circuit conducted research on the legislative intent behind the Anti-Pinkerton

Act. In the Court‘s opinion it cited the 88th

Congress as follows:

―Does not the gentleman from Indiana (Mr. Holman) well know that nobody objects to

the legitimate use of Pinkerton detectives as such. It is their use as armed guards that is

objected to, and it is the sending of their armed guards from one state into another that is

objected to. . . .‖ Id at 463.

Based on this and the Homestead Strike which promulgated the Ant-Pinkerton Act as discussed

above the court reasoned that:

31

The Anit-Pinkerton Act, supra note 27. 32

United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456, (5th Cir. 1977), cert. denied, 434 U.S. 1035

(1978).

10

―The nature of the Anti-Pinkerton Act, 5 U.S.C.S. § 3108, directs the court, not to the

present-day Pinkerton Agency for comparison, but to the agency as it existed in 1892.

Congress enacted a broad proscription against government employment of a class.

Rather than specifically defining the class, it used one example by which others falling in

the class could be identified. Courts cannot change that definition by looking to the

example organization as it presently exists. Courts must look to the Pinkerton Detective

Agency as it existed when Congress used it as a definitional example in 1892 to decide

which organizations are "similar" to the kind proscribed for employment.

…Congress wished to ban the employment of Pinkertons as a private mercenary force…

The purpose of the Anti-Pinkerton Act, 5 U.S.C.S. § 3108, and the legislative history

reveal that an organization is "similar" to the Pinkerton Detective Agency only if it offers

for hire mercenary, quasi-military forces as strike-breakers and armed guards.‖ Id at 462-

463.

Thus the decision of the lower court was affirmed and Weinberger tried to appeal to the U.S.

Supreme Court, but certiorari was denied. 33

This decision did not sit well with the United States Comptroller General.34

35

The

Comptroller General had actually been in the midst of deciding the same issue at the same time

and had come to a different conclusion of the Court more similar to that of Weinberger‘s

interpretation.36

In 1975 the Navy placed out a contract for a private guard service at its Naval

Underwater Systems Center in Newport, Massachusetts. Id. They did this in part because of its

reduction in force and had removed a number of civil service guards from their positions. Id. A

company called Progressive Security Agency was awarded the $314,453.04 contract. Id. When

the disgruntled civil service guards learned of this they filed an administrative appeal to Civil

33

See United States ex rel. Weinberger v. Equifax, Inc. 434 U.S. 1035 (1978). 34

See 31 U.S.C. § 703. The United States Comptroller General is the director of the Government Accountability

Office under the legislative branch whose job it is to ―investigate, at the seat of government or elsewhere, all matters

relating to the receipt, disbursement, and application of public funds, and shall make to the President when requested

by him, and to Congress...recommendations looking to greater economy or efficiency in public expenditures.‖ The

Comptroller General is appointed to 15 year terms by the President with the advice and consent of the Senate. 35

The Comptroller General during this time period was Elmer Boyd Staats who was appointed by Lyndon Johnson

in 1966 and served his full 15 year term ending in 1981. See Bart Barnes, Elmer B. Staats, GAO chief under 5

presidents, dies at 97, The Washington Post, July 27, 2011. 36

In the matter of the Progressive Security Agency, Inc, 55 Comp. Gen. 1472 (1976).

11

Service Commission. Id. One of the components of the appeal was that the contract violated the

Anti-Pinkerton Act. Id. This issue was sent to Comptroller General‘s Office for a decision. Id.

The Comptroller General read the Ant-Pinkerton Act quite literally as only prohibiting the hire of

detective agencies in conformance with an earlier Comptroller General Decision stating that a

detective agency was not the same as a guard service.37

The Comptroller General held in his

1976 opinion that:

―[A] [c]ompany whose corporate charter specifically authorizes investigative as well as

protective functions, and which is licensed as detective agency under Massachusetts

statute prescribing separate licenses for detective and protective agencies, is a detective

agency for purposes of 5 U.S.C. 3108 [Anti-Pinkerton Act] and may not be employed by

Federal agency, even though employment is solely to perform guard services.‖38

The Comptroller General Affirmed this decision in January of 1977 before the Equifax decision

was published by the 5th

Circuit in August of the same year.39

Then in 1978 there was another

bid protest based on the Anti-Pinkerton Act and its new interpretation in Equifax, which gave the

Comptroller General a chance to interpret Equifax.40

The Private Security Officers Co. (PSO)

were protesting a contract to guard an Army Support Facility in New Jersey because they

originally had the contract and were passed up for renewal by the Army who instead elected to

put it out for bid. Id. When PSO turned out to be not the lowest bidder (who was Lance

Security) and the contract was about to be awarded to another company they filed a bid protest

on the grounds it violated the Anti-Pinkerton Act via its new 5th

Circuit interpretation in Equifax.

Id. The Comptroller General took a narrow view of the Court‘s decision in Equifax applying

what he believed to be a similar standard carving out one line in Equifax on which to base his

decision:

37

Comptroller General Warren to the Administrator, War Assets Administration, 26 Comp. Gen. 303 (1946). 38

In the matter of the Progressive Security Agency, Inc, supra note 36. 39

In the matter of the Progressive Security Agency, Inc., reconsideration, 56 Comp. Gen. 225 (1977). 40

In the matter of Professional Security Officers Company, 57 Comp. Gen. 480 (1978).

12

―In light of the purpose of the Act and its legislative history, we conclude that an

organization is not "similar" to the (quondam) Pinkerton Detective Agency unless it

offers quasi-military armed forces for hire. Because Weinberger fails to allege that

Equifax provides so much as an armed guard, much less an armed quasi-military unit,

Equifax's employment is not illegal under the Anti-Pinkerton Act.‖ Id, Equifax at 463.

Based on this the comptroller held the following:

―Applying the above-quoted standard promulgated by the court, we are unable to

conclude on the basis of the record that Lance Security offers "quasi-military armed

forces for hire" and, therefore, cannot agree with the protester's assertion that an award to

Lance Security would be in violation of the act and the implementing procurement

regulation.‖ Id.

This decision by the Comptroller General has not been overruled by any Comptroller General

since then nor has any Federal Court overruled or held differently than the 5th

Circuit‘s

interpretation in Equifax.

Now because of the Ant-Pinkerton Act, the Equifax case interpreting it, and the

Comptroller General‘s 1978 opinion applying Equifax there is an exception carved out for the

U.S. to employ private protective armed and un-armed guard services, despite it being contrary

to the 88th

Congress‘ intent. Through this exception corporate mercenaries have prospered with

both the U.S. government and corporations categorizing their services as ―protective guard

services.‖41

This exception was challenged in 2006 during the war in Iraq. 42

An Army veteran,

Brian Scott, challenged a contract bid issued in March of 2006 soliciting services for security

escorts for cargo convoys, including a ―minimum of three vehicle escorts with radios and

weapons for every ten transportation trucks [and] for all sensitive cargo the contractor will

include a minimum of two Ex-Pat security escort vehicles.‖ Id. Scott claimed that this violated

the Anti-Pinkerton Act within the interpretation of Equifax because it contracted for a quasi-

41

Private Security Contractors in Iraq, supra note 19, at 3. 42

Matter of: Brian X. Scott, 2006 Comp. Gen. Proc. Dec. P125 (2006).

13

military service. Id. The Comptroller General again was faced with making a decision. In

relevant part the decision stated as follows:

―The protester argues that ‗[t]he purpose of guard or protective services is to provide

active surveillance, documentation, reporting and physical presence in order to deter

harm to persons or property and safeguard military assets,‘ whereas ‗quasi-military armed

force refers to private contractors that are hired by the US government to engage in or be

prepared to engage in offensive or defensive combat.‘‖

―The agency [Department of Defense] responds that the protester's definitions of

offensive or defensive combat and guard or protective services are not based on statutory

or regulatory definitions, and thus are not relevant for establishing whether the activities

contemplated by the solicitation are activities that cannot be performed by a government

contractor under the Act. We agree with the agency.‖ Id.43

Interestingly enough, there are no established definitions of what quasi-military services are.

Equifax did not define them, and the Comptroller General decided in the 1978 decision above

that armed guard services were not quasi-military services, an interpretation that was affirmed in

this 2006 decision; so what definition for quasi-military services would be relevant to the

Department of Defense or the Comptroller General? The Comptroller General also noted that,

"it has become apparent in recent years that the act has outlived the circumstances which

produced it, and whether the act continues to serve a useful purpose has been frequently

questioned.‖44

This final blow by the Comptroller General saw the end of the Anti-Pinkerton

Act‘s ability to trifle or inhibit the United States Government from procuring the services of

corporate mercenaries.

43

Scott v. United States, 78 Fed. Cl. 151 (2007). Scott appealed the Comptroller General‘s decision to the United

States Court of Federal Claims. His appeal was dismissed by the Federal Claims Court for having a lack of standing

to bring the case. The Federal Court of Claims has jurisdiction over challenges to government procurement pursuant

to the Tucker Act, 28 U.S.C.S. § 1491. According to the Tucker Act an ―interested party‖ has standing to challenge

government procurement. An ―interested party‖ is defined under 28 U.S.C.S. § 1491(b)(1) as the same definition as

that under the Competition in Contracting Act, 31 U.S.C. § 3351, which defines ―interested party‖ under 31 U.S.C. §

3351(2) as ―an actual or prospective bidder or offeror whose direct economic interest would be affected by the

award of the contract or by failure to award the contract.‖ Scott was not a bidder or offeror and he was unable to

prove to the Court‘s satisfaction that he had a direct economic interest affected by the award of the contract. 44

Matter of: Brian X. Scott, supra note 42.

14

C. International Law

In 1977 the first international laws pertaining to mercenaries were passed by the Geneva

Convention‘s Protocol I which served to re-affirm the Third Geneva Convention of 1949 and to

amend it in response to some of the tactics used in the Vietnam conflict as well as in response to

the travesties taking place in Africa throughout the 60‘s and 70‘s in their struggle for

independence from France, the United Kingdom, the Netherlands and other European

countries.45

Article 47 of Protocol I specifically addressed mercenaries in response to their

heavy usage on the African continent and the havoc that they reaped there.46

47

The full contents

of Article 47 are as follows:

―Art 47. Mercenaries

1. A mercenary shall not have the right to be a combatant or a prisoner of war.

2. A mercenary is any person who:

(a) is specially recruited locally or abroad in order to fight in an armed conflict;

(b) does, in fact, take a direct part in the hostilities;

(c) is motivated to take part in the hostilities essentially by the desire for private

gain and, in fact, is promised, by or on behalf of a Party to the conflict, material

compensation substantially in excess of that promised or paid to combatants of

similar ranks and functions in the armed forces of that Party;

(d) is neither a national of a Party to the conflict nor a resident of territory

controlled by a Party to the conflict;

(e) is not a member of the armed forces of a Party to the conflict; and

(f) has not been sent by a State which is not a Party to the conflict on official duty

as a member of its armed forces.‖ Id.

45

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of

International Armed Conflicts (Protocol I), June 8, 1977. 46

See generally the Congo Crisis, the Nigerian Civil War, the Angola Civil War, the National Front of the

Liberation of Angola, and Muammar Gaddafi‘s use of mercenaries known as Tauregs in the years after his Libyan

revolution. 47

Supra note 45, at 572, Commentary and General Remarks on Article 47.

15

The Article accomplishes two things; for the first time, it gives a definition as to what a

mercenary actually is, as well as addressing their rights, or lack thereof, for being a mercenary.

Of primary importance is the definition of a mercenary that the Geneva Convention resolved on.

The Convention notes that they drew a narrow definition because of the wide misuse of the word

mercenary; the Convention also required that all of the requirements in subsection 2 be met in

order to be considered a mercenary within the Article.48

They included requirement 2(a) because

they wanted to avoid labeling foreign members of a sovereign‘s military, belligerents,

international volunteers, and other organizations like the Papal Swiss Guard and the French

Foreign Legion as mercenaries. Id. Requirement 2(d) was meant to protect political parties and

revolutionaries. Id.

The definition has been criticized for being overly narrow because it does not to include

groups such as corporate mercenaries.49

For instance requirement 2(b) requires the person to ―in

fact, take a direct part in the hostilities,‖ where, as above, most U.S. corporate mercenaries

classify themselves as armed guard protective services and can claim that their actions hostilities

are only defensive in nature. Id. In fact contractors are exactly whom the Convention had in

mind of protecting when drafting that requirement as they use the example of ―military

technicians‖ in their remarks on the sub-paragraph. Id. The Article itself has been criticized for

not being palpable or able to hold up if ever tried in a courtroom as well as only pertaining to the

mercenaries of post-colonial Africa and not adequately addressing corporate mercenaries.

On its face subsection 1 of Article 47 appears not to carry much consequence for

individual mercenaries by not affording them the right to have the status of a combatant or

48

Id. note 47, at 573. 49

Todd S. Milliard, article, Overcoming post-colonial myopia: A call to recognize and regulate private military

companies, Military Law Review Vol 173, (2003), at 54-58.

16

prisoner of war, but this is not so. Enemy combatant and prisoner of war rights are actually

incorporating by reference to the 1949 Third Geneva Convention pertaining to the relative

treatment of Prisoners of War (POW).50

That convention requires POWs to be treated humanely,

given secure quarters, food, clothing, canteens, medical attention, chaplains, exercise, only

certain types of work, have the ability to make complaints, have certain correspondence, and are

only required to state their name and rank. Id. POWs are also not allowed to be tortured. Id. The

rights of enemy combatants are in sum; the right to have medical attention, the right not to be

tortured, the right to be treated humanely, the right to a fair trial if they have committed war

crimes,51

and the right to be repatriated if possible.52

Mercenaries who fall under the above definition, however, do not necessarily fear being

treated inhumanely or being tortured because of Article 5 of the 1949 Fourth Geneva Convention

which they also fall under as it provides that all captured non-combatants still have the right to

be, "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and

regular trial."53

They can be prosecuted, however, for any regular crime that they commit, while

combatants are only liable for crimes of war. Id. For instance if a mercenary kills an enemy

combatant he can face trial for murder whereas a combatant may not. The United States was not

an original signatory to Protocol I, but they later signed it that same, but never ratified Protocol I

into law. 54

Corporate employees are also technically covered under Convention 1 Article 3,

persons taking no part in the hostilities, which prevents them, from among other things, killing,

50

See generally, Geneva Conventions of 12 August 1949, Convention (III) relative to the Treatment of Prisoners of

War. Geneva, August 12, 1949. 51

See generally The Hague Conventions (1864 and 1909). 52

Geneva Convention (III), supra note 50. 53

See generally, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, August 12,

1949. 54

Protocol I, supra note 45, at Article 47.

17

torturing, or taking hostages.55

A final criticism of Article 47 is that when it refers to persons, it

means human beings and not the West‘s amended definition of person‘s to include incorporated

beings such as churches and corporations.56

The United Nations (UN) General Assembly took a swing at mercenaries in 1989 when

they passed resolution 44/34 or the International Convention against the Recruitment, Use,

Financing and Training of Mercenaries, more commonly referred to as the UN Mercenary

Convention. 57

This resolution came in response to the concerns about the limited scope and

applicability of Protocol I as well as the fact that it seemed to have a limited effect on the

mercenarism still occurring. Id. Article 1 of the resolution, defining a mercenary, states as

follows:

―1. A mercenary is any person who:

(a) Is specially recruited locally or abroad in order to fight in an armed conflict;

(b) Is motivated to take part in the hostilities essentially by the desire for private

gain and, in fact, is promised, by or on behalf of a party to the conflict, material

compensation substantially in excess of that promised or paid to combatants of

similar rank and functions in the armed forces of that party;

(c) Is neither a national of a party to the conflict nor a resident of territory

controlled by a party to the conflict;

(d) Is not a member of the armed forces of a party to the conflict; and

(e) Has not been sent by a State which is not a party to the conflict on official duty

as a member of its armed forces.

2. A mercenary is also any person who, in any other situation:

(a) Is specially recruited locally or abroad for the purpose of participating in a

concerted act of violence aimed at:

(i) Overthrowing a Government or otherwise undermining the constitutional order

of a State; or

(ii) Undermining the territorial integrity of a State;

55

See generally, Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in

the Field. Geneva, August 12, 1949. 56

Milliard, supra note 49, at 58-59. 57

United Nations General Assembly resolution 44/34, International Convention against the Recruitment, Use,

Financing and Training of Mercenaries (1989).

18

(b) Is motivated to take part therein essentially by the desire for significant private

gain and is prompted by the promise or payment of material compensation;

(c) Is neither a national nor a resident of the State against which such an act is

directed;

(d) Has not been sent by a State on official duty; and

(e) Is not a member of the armed forces of the State on whose territory the act is

undertaken.‖ Id.

From reading the above definition it is immediately apparent that it has a much broader scope

than the definition in Protocol I and almost appears to be specifically referring to corporate or

other organized mercenaries as opposed to individuals. Notice also how this second definition

includes all armed conflicts instead of just international conflicts. The convention goes much

further than simply broadening the definition of a mercenary, but as well as to what acts are

prohibited in connection with mercenaries, where Protocol I simply stripped the mercenaries

themselves of certain rights. Article 2 states that, ―Any person who recruits, uses, finances or

trains mercenaries, as defined in article 1 of the present Convention, commits an offence for the

purposes of the Convention,‖ thus making it offensable for any person to simply hire a

mercenary. Id. This should give corporate mercenaries pause as the people within the

corporation are technically is hiring and training its mercenary employees. Article 3 of the

convention goes on to make it offensable to be a mercenary. Id. Article 5 prohibits State Parties

from using, financing, or training mercenaries, and provides that if they do so the State Parties

―shall make the offences set forth in the present Convention punishable by appropriate penalties

which take into account the grave nature of those offences.‖ Id. The Resolution also makes

provisions for State Parties to enforce the Resolution on one another, to take actions from

preventing other State Parties from violating the Articles of the Resolution. Id. The Resolution

finally came into force on October 20th

2001 when Costa Rica became the 22nd

State to ratify the

resolution. Id. Since then four more countries have become parties bringing the total to 26. Id.

19

The United States is not a party to this resolution. Since its signing and enforcement, two

nations who ratified the treaty went on to violate it by hiring and using mercenaries; Angola and

the Democratic Republic of Congo.58

D. Further United States Regulations on Corporate Mercenaries

Since September 11th

2001, the United States found itself in two armed conflicts

simultaneously and continuously since March of 2003 when it invaded Iraq (2003) and

Afghanistan (2001). These two conflicts have stretched the U.S. military and have seen the

expansion of the use of private contractors being used abroad in and around the area of conflict.59

In 2006, near the height of the Iraq war, the United States Census counted roughly 100,000

general contractors operating in Iraq alone, a number that does not include the number of

subcontractors. Id. This number is over 10 times higher than the estimated 9,200 contractors

hired in the Gulf War. Id. At the outset of these wars the U.S. seemed to be distinctly aware of

the potential disastrous outcomes of the use of corporate mercenaries as the United States

Congress passed the Military Extraterritorial Jurisdiction Act (MEJA).60

This act came into

effect November 22, 2000. Id.

1. The Military Extraterritorial Jurisdiction Act (MEJA)

Under MEJA, any person who is employed or accompanying armed forces overseas can

be prosecuted for an offense that would constitute a felony, meaning a crime that is punishable

by imprisonment of more than one year, if committed within the United States. Id. An employee

of the armed forces does include private military contractors and subcontractors but does not

58

Private Security Contractors in Iraq, supra note 19, at 18. 59

Renae Merle, Census Counts 100,000 Contractors in Iraq, The Washington Post, December 5, 2006. 60

The Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. § 326-67 (2000).

20

include employees of agencies other than the Department of Defense (DoD), who are on a their

own mission overseas. Id. It further provides that ―The Secretary of Defense may designate and

authorize any person serving in a law enforcement position in the Department of Defense to

arrest, in accordance with applicable international agreements, outside the United States any

person described in section 3261(a) [of the Act] if there is probable cause to believe that such

person violated section 3261(a). Id. The MEJA merely granted U.S. Courts jurisdiction for

crimes committed overseas by civilians, but a Court cannot sentence a civilian without a

prosecutor first filing a complaint. Since there isn‘t a U.S. Attorney‘s Office in major combat

areas nor any FBI office, virtually none of the civilian crimes were being investigated, let alone

prosecuted. 61

According to the DoD, as of July 2009, almost nine years after MEJA came into

effect, only 40 cases involving U.S. contractors had arisen under MEJA and of those 33 were

from Iraq. Id. Of the 40 cases arising under MEJA only 8 had actually been charged and

prosecuted, and of the 8, only 4 were from Iraq. Id.

Aside from the lack of infrastructure and incentive for the DoD to prosecute civilian

contractors under MEJA, there were other problems with MEJA as well. For one, it did not

create any new internal agency within the DoD specifically dedicated to investigating civilian

contractors and then forwarding their investigations to a U.S. Attorney for prosecution. Id.

More importantly it only covered civilians employed by the DoD or through a DoD contract. Id.

It did not cover any contractors or civilian employees of the U.S. Department of State.62

61

Robert E. Reed, Associate Deputy General Counsel, Congressional March to Accountability For Civilians

Overseas, (aka: Filling the Gaps and Crevices), Department of Defense, (2009), at 8. 62

Department of Defense Instruction 5525.1, Criminal Jurisdiction Over Civilians Employed By or Accompanying

the Armed Forces Outside the United States, Certain Service Members, and Former Service Members, March 3,

2005, Instruction Enclosure 3.

21

These MEJA loopholes were developing into major problems for the Government in the

press in 2007 when incidents involving corporate mercenaries in Iraq began to heat up.63

Employees of Blackwater USA, a private security firm under contract to the State Department,

opened fire on the streets of Baghdad twice in two days, and one of the incidents provoked a

standoff between the security contractors and Iraqi forces. Id. These and other incidents were

able to finally get the attention of U.S. law and policy makers.

On June 15, 2007 Representative David Price [D-N.C.] introduced H.R. 2740, known as

the MEJA Expansion and Enforcement Act.64

H.R. 2740 proposed to create a FBI Theater

Investigative Unit which would be responsible for looking into every single criminal complaint,

including those made which to date had not been resolved, and to refer their investigations to

U.S. Attorney General for Prosecution if they confirmed criminal conduct. Id. It also directed all

contractors and agencies operating within contingency areas to give their full support to this new

FBI unit. Id. Lastly, the bill made it so that the MEJA would be expanded to all contractors

operating in contingency areas overseas without regard to which agency they were contracted

under as opposed to just the DoD. Id. The Bill made it past the House with 389 Ayes, 30 Nayes,

with 13 Representative not present, it never made it to a vote in the Senate, however, and to this

date has not become law. Id.

2. The Coalition Provisional Authority

The Coalition Provisional Authority (CPA) was the transitional government for Iraq

which was set up by the U.S. and its allies in April of 2003 pursuant to the authority granted to

63

Steve Fainaru and Saad al-Izzi, U.S. Security Contractors Open Fire in Baghdad, Washington Post Foreign

Service, May 27, 2007. 64

MEJA Expansion and Enforcement Act of 2007, H.R. 2740, 110th

Congress, (2007).

22

the under the United Nations Security Council Resolution 1483.65

The Administrator of the CPA

for the majority of its existence was Lewis Paul Bremer, III of the United States.66

Within a

month of Bremer taking office as the Administrator he issued Coalition Provisional Authority

Order Number 17, entitled, Status of the Coalition, Foreign Liaison Missions, Their Personnel

and Contractors.67

Just before leaving office on June 27th

, 2004 Bremer revised Order 17. Id.

The revision of Section 3 of Order 17, entitled, Contractors, stated in relevant part as follows:

―1) Coalition contractors and their sub-contractors as well as their employees not

normally resident in Iraq, shall not be subject to Iraqi laws or regulations in

matters relating to the terms and conditions of their contracts in relation to the

Coalition Forces or the CPA. Coalition contractors and sub-contractors other

than contractors and sub-contractors normally resident in Iraq shall not be

subject to Iraqi laws or regulations with respect to licensing and registration of

employees, businesses and corporations in relation to such contracts.

2) Coalition contractors and their sub-contractors as well as their employees not normally

resident in Iraq, shall be immune from Iraqi Legal Process with respect to acts performed

by them within their official activities pursuant to the terms and conditions of a contract

between a contractor and Coalition Forces or the CPA and any sub-contract thereto.

3) In respect of acts or omissions of Coalition contractors and sub-contractors as

well as their employees not normally resident in Iraq, which are not performed by

them in the course of their official activities pursuant to the terms and conditions

of a contract between them and the Coalition or the CPA, no Iraqi or CPA Legal

Process shall be commenced without the written permission of the Administrator

of the CPA.‖ Id.

Essentially the effect of Section 3 of Order 17 was to give all contractors, including corporate

mercenaries, virtually full immunity from Iraqi law. Specifically section 2 states that all the

contractors are completely immune from any of their official activities pursuant to their contract.

65

See AFTEREFFECTS; Passages From Security Council Resolution Ending U.N. Sanctions on Iraq, The New

York Times, May 23, 2003. The Resolution was drafted by the U.S., it also transferred the authority to authorize

expenditures from Iraq's oil revenue from the United Nations to a Development Fund for Iraq, controlled by

the Coalition Provisional Authority, and the Coalition was only authorized to expend those funds for the benefit of

the Iraqi people. 66

See Jillian Schwedler and Deborah Gerner, Understanding the Contemporary: Middle East (2008). L. Paul

Bremer, III served as Administrator if the CPA from May 11, 2003, when he replaced Gerald Jay Garner, until June

28, 2004 when power was transferred to the Iraq Interim Government. Garner was removed for ignoring pressure

from the U.S. Government to remove members of the Ba‘ath Party from the Iraqi government and military. 67

See Coalition Provisional Authority Order Number 17, entitled, Status of the Coalition, Foreign Liaison Missions,

Their Personnel and Contractors, June 27, 2004.

23

Id. Section 3 goes on to cover activities by the contractors that are not official, in which case the

Iraqi government cannot commence any legal process against them without express written

permission of the Administrator of the CPA himself. Id. This Order equated to a license to kill,

rape, pillage, torture, and the like for any foreign contractor of the coalition. Although the CPA

handed over power to the Iraqi Interim Government in June 2004, the Orders of the CPA

remained in place. The Order actually remained in place through the Iraqi Interim Government,

through the Iraqi Transitional Government established in May of 2005, and into the first

permanent Iraqi government which finally took power in May of 2006.68

Finally in October of

2007, after the incidents with corporate mercenaries that summer,69

and after the September 6,

2007 shooting by Blackwater employees that left 17 dead and 24 wounded,70

the Iraqi Cabinet

decided to end contractors‘ immunity from Iraqi law by voting to overturn Order 17. 71

The

Cabinet made the overturning of Order 17 as a provision of the U.S.-Iraq Statute of Forces

Agreement (SOFA).72

The Parliament ratified SOFA in November of 2008, and the Iraqi

Presidency Council passed it into law on December 4, 2008. President George W. Bush signed

SOFA on December 14, 2008 making binding on the United States.73

SOFA required that all

foreign contractors, their vehicles, and their weapons, had to be licensed with the Iraqi Foreign

68

Schwedler et. al, supra note 66. 69

Fainaru et. al, supra note 63. 70

Alissa J. Rubin, Iraqi Government Votes to End Security Firms‘ Immunity, The New York Times, October 31,

2007. 71

Strategic Framework Agreement and Security Agreement Between the United States of America and the

Republic of Iraq, (2008). 72

U.S. Citizens are most familiar with the main provisions of SOFA, that U.S. combat forces withdraw from Iraqi

cities by June of 2009 and that they completely withdraw by the end of 2011. Id. at Article 24. 73

Timothy Williams and Abeer Mohammed, In Iraqi‘s Shoe-Hurling Protest, Arabs Find a Hero. (It‘s Not Bush.),

The New York Times, December 16, 2008. Most U.S. Citizens recall that at the joint press conference between

President Bush and Prime Minister Nuri al-Maliki, after President Bush had signed SOFA, was when an upset Iraqi,

Muntadhar al-Zaidi, took off his shoes and threw them at President Bush while screaming in Arabic, ―This is for the

widows and orphans and all those killed in Iraq!‖ Most also remember President Bush‘s quick reflexes as he was

able to duck and avoid being struck by both shoes.

24

Ministry as well.74

SOFA was not an end all to contractors‘ immunity under Order 17 however,

immunity was only withdrawn for contractors working for the State Department allowing other

U.S. agencies and their contractors to retain their immunity from Iraqi law until the complete

troop withdrawal date of December 31, 2011. Id. Further, according to the agreement, if a

member of the State Department, or one of its contractors, commits a crime off of an installation

area where Iraq has jurisdiction, and they are arrested, then the Iraqi government will notify the

U.S. government within 24 hours of the arrest. Id. The U.S. then has 21 days to retrieve the

contractor or agent from Iraqi jail and then and only then can Iraq begin prosecuting that

contractor under Iraqi law. Id. To date there has been no prosecutions of corporate mercenaries

under Iraqi law due to the protections of CPA Order 17 and SOFA.75

3. Department of Defense Instructions

The Coalition Provisional Authority was not the only agency who was sympathetic to

corporate mercenaries‘ ―plight‖ in being regulated to be held accountable for their actions. The

CPA‘s ―parent agency,‖ the DoD felt the same way.76

In October of 2005 the Department of

Defense had already began to be frustrated with the behavior of corporate mercenaries in Iraq,

and under the authority of MEJA introduced DoD Instruction 3020.41, entitled, Contractor

Personnel Authorized to Accompany the U.S. Armed Forces.77

The instruction set out clear

responsibilities and procedures for corporate mercenaries. Id. This came somewhat too little too

late having been already in the Iraq war for 2 ½ years. This was the third MEJA instruction

74

Strategic Framework Agreement, supra note 71, at Article 12, Jurisdiction. 75

Private Security Contractors in Iraq, supra note 19, at 19. 76

The Coalition Provisional Authority was led primarily by L. Paul Bremer, supra note 59, who primarily answered

to the Secretary of Defense, at that time Donald Rumsfeld, who acts as the chief executive officer of the Department

of Defense. See L. Paul Bremer, III, How I Didn‘t Dismantle Iraq‘s Army, The New York Times, September 6,

2007. 77

Department of Defense Instruction 3020.41, Contractor Personnel Authorized to Accompany the U.S Armed

Forces, (2005).

25

issued by the DoD in order to shape up its private military contractors. The other two being DoD

Instruction 1300.23, Isolated Personnel Training for DoD Civilian Contractors, issued in August

2003, and DoD Instruction 4145.26, DoD Contractor‘s Safety Requirements for Ammunition and

Explosives, issued April of 2005. Instruction 1300.23 was issued 6 months into the Iraq war and

almost 2 years into the war in Afghanistan finally mandated a minimum level of training for

DoD contract employees other than that covered in the individual contracts.78

Instruction

4145.26 finally set minimum safety requirements for DoD contractor‘s use of weapons.79

DoD

Instruction 3020.41 also set out which contractors were actually allowed to accompany U.S.

armed forces and which were not, in effect further defining MEJA as technically civilians not

accompanying armed force were outside the jurisdiction of MEJA.80

It also re-affirmed that

private military contractors could use deadly force in self defense, defense of others, and in

defense of property they were contracted to defend. Id.

Then the DoD introduced made federal regulation Defense Federal Acquisition

Regulation Supplement; Contractor Personnel Authorized to Accompany U.S. Armed Forces, in

June of 2006, placing it into the Federal Register, which amended DoD Instruction 3020.41.81

It

relaxed rules regarding the necessity of security contractors‘ combatant commanders to develop

security plans in locations where he decides to it is in the interests to provide security. Id. This

essentially allowed corporate mercenaries to roam free without filing any paperwork as long as

they felt it was in the best interest of the United States to provide security in those locations. It

78

Department of Defense Instruction 1300.23, Isolated Personnel Training for DoD Civilian Contractors, (2003). 79

Department of Defense Instruction 4145.26, DoD Contractor‘s Safety Requirements for Ammunition and

Explosives, (2005). 80

Department of Defense Instruction 3020.41, supra note 77. 81

71 Fed. Reg. 34825 (2006), Defense Federal Acquisition Regulation Supplement; Contractor Personnel

Authorized to Accompany U.S. Armed Forces.

26

went even further to make it the responsibility of the combatant commanders to ensure that their

mission did not authorize performance of inherently governmental functions like preemptive

attacks, assaults, or raids. Id. This in effect removed the remaining on scene government

regulation of corporate mercenaries‘ day to day activity leaving it up to the mercenaries

themselves to make sure that they only engaged the enemy defensively. It also amended the

DoD Instruction to allow for all contractors to use deadly force in self-defense and defense of

others and property, meaning that non-militarized contractors, such as truck drivers and

suppliers, could engage with any combatant or civilian with deadly force. Id. Given the

reactionary nature of the DoD‘s instructions and the DoD‘s later ―watering down‖ of their effect

speaks to the DoD‘s feelings towards their corporate mercenaries contract employees.

4. The Uniform Code of Military Justice

The Uniform Code of Military Justice (UCMJ)82

83

as many people know it was

originally established by Congress in May of 1951, replacing the Articles of War,84

to serve as

the judicial code for all branches of the military, providing in part for apprehension and restraint,

court-martial, trial, and punishment.85

According to the original text the UCMJ, it not only had

jurisdiction of members of the military, but ―persons accompanying the armed forces,‖ only in

―time of war.‖86

One would think that from this language that civilians are subject to the UCMJ

82

The Uniform Code of Military Justice, 10 U.S.C.§ Chapter 47. 83

Congress created the UCMJ pursuant to their power under Article I, Section 8 of the United States Constitution,

providing in relevant part that ―The Congress shall have Power…To make Rules for the Government and Regulation

of the land and naval forces.‖ Id. note 82. 84

The original Articles of War actually pre-dated the U.S Government, and were established by the Second

Continental Congress to govern the Continental Army in 1775. Congress adopted those Articles into its first

Articles of War in 1806, but they only applied to the Army and the Navy. The UMCJ went into effect in 1951 to

govern the U.S.‘ then 5 branches of military uniformly under one code. See The Uniform Code of Military Justice,

History, available at, http://www.ucmj.us/about-ucmj.shtml. 85

The Uniform Code of Military Justice, supra note 82. 86

See 50 U. S. C. § 552 (11) (1951).

27

if they meet the two qualifications. This is not the case, as the military tried this during the

Korean War where there were two separate incidents of wives accompanying their husbands

onto foreign military bases and subsequently murdering them.87

Counsels for both women filed

in U.S. District Court, asking the Court to overturn their guilty rulings by the military courts,

claiming that the rulings were unconstitutional in that Congress did not have the constitutional

authority to apply the UCMJ to civilians.88

The cases were combined by the Supreme Court and

decided on as Reid v. Covert, 354 U.S. 1 (1957). The Supreme Court decided in its plurality

decision that the respondents did not lose their civilian status and their right to a civilian trial

because the government helped them live as members of a soldier's family. Id. The Court stated

that it should not break faith with the nation's tradition of keeping military power subservient to

civilian authority, a tradition which was firmly embodied in the Constitution. Id at 40. The

Supreme Court limited its ruling to only capital cases. Id at 48. This ruling in Covert was later

expanded in a series of cases following to include other civilian cases asides from capital cases.

In Kinsella v. Singleton, 361 U.S. 234 (1960), the Supreme Court applied Covert to prohibit the

UCMJ from applying to non-capital criminal cases involving a civilian dependent. Then in

Grisham v. Hagan, 361 U.S. 278 (1960), the Supreme Court again extended Covert to prevent

the UCMJ from applying to civilian employees of the Army in capital cases. Finally in McElroy

v. Guagliardo, 361 U.S. 281 (1960), the Supreme Court expanded Covert to extend to non-

capital criminal cases of civilian employees of all of the armed forces. This line of cases did not

prevent the UCMJ from applying to civilians in non-criminal ―military only‖ violations, such as

direct violations of orders given by a military.89

90

In Covert, however, the Supreme Court never

87

See Air Force Board of Review, 16 C.M.R. 465, and Army Board of Review, 10 CMR 350, 13 CMR 307. 88

Reid v. Covert, 354 U.S. 1 (1957). 89

See Noyd v. Bond, 395 U.S. 683 (1969). The Court also held that all military remedies be exhausted before

seeking appeal in U.S. civilian court. Id at 698.

28

expressly held that the Constitution protects civilians who may be considered in or part of the

Armed Forces during war from being court-martialed, leaving open an opportunity.91

Out of the Vietnam ―conflict‖ arose the case of Robb v. United States, where the phrase

―time of war‖ was challenged as to whether it included ―conflicts‖ such as that as Vietnam. Id.

Where the Supreme Court held that ―time of war‖ only included wars declared by Congress. Id at

539. Thus after Robb, civilians accompanying the armed forces could only be court-martialed

under the UCMJ if they committed a non-criminal offense (i.e. disobeying orders) during a

declared war by Congress, effectively giving civilians immunity from the UCMJ. Id.

Neither of the conflicts in Iraq or Afghanistan is a declared war by Congress within the

definition of the UCMJ as interpreted by Robb. The last time Congress declared a war was

World War II.92

The authority for the conflict in Afghanistan came from The Authorization for

Use of Military Force Against Terrorists enacted on September 18, 2001.93

The authority for

Iraq came from the Joint Resolution to Authorize the Use of the United States Armed Forces

Against Iraq, enacted October 2, 2002.94

Thus no civilian in any circumstance could come under

the jurisdiction of the UCMJ.

90

Toth v. Quarels, U.S. 350 U.S. 11 (1955). The Supreme Court also held that former members of the military

cannot be court-martialed for crimes they committed while in active duty if they have since severed all ties with the

military. Id at 43. 91

Reid v. Covert, supra note 88, at 23, ―there might be circumstances where a person could be ‗in‘ the armed

services for purposes of [the UCMJ to control] even though he had not formally been inducted into the military.‖ 92

World War II was made up of six declarations of war by Congress. The Declaration of War on; Japan, December

8, 1941, Germany and Italy, December 11, 1941, and Bulgaria, Hungary, and Romania, June 5, 1942. Respectively;

55 Stat. 795, ch. 561, 55 Stat. 796, ch. 564, 55 Stat. 797, ch. 565, 56 Stat. 307, ch. 323, 56 Stat. 307, ch. 324, 56

Stat. 307, ch. 325. 93

Sense of Congress Regarding Terrorist Attacks, Pub.L. 107-40, 115 Stat. 224, September 18, 2001. 94

Authorization for use of Military Force Against Iraq Resolution of 2002, Pub.L. 107-243, 116 Stat. 1498,

October 16, 2002.

29

In October 2006, Congress passed the John Warner National Defense Authorization

Act.95

This Act mainly served as an authorization of appropriations96

for the Department of

Defense for the year 2007. Id. Also in the legislation was the addition of five words to Article

2(a)(10) of the UCMJ relating to its jurisdiction:

―In time of declared war or a contingency operation, persons serving with or

accompanying97

an armed force in the field.‖98 99

Congress added the word ―declared‖ for feasibility purposes to comport with the decision in

Robb. Id. More importantly, Congress included contingency operations in addition to declared

wars. Id. A contingency operation is defined in 10 U.S.C. § 101(a)(13) as:

―(13) The term ‗contingency operation‘ means a military operation that—

(A) is designated by the Secretary of Defense as an operation in which members of

the armed forces are or may become involved in military actions, operations, or hostilities

against an enemy of the United States or against an opposing military force; or

(B) results in the call or order to, or retention on, active duty of members of the

uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of this

title [10 USCS § 688, 12301(a), 12302, 12304, 12305, or 12406], chapter 15 of this title

[10 USCS §§ 331 et seq.], or any other provision of law during a war or during a national

emergency declared by the President or Congress.‖100

Operation Enduring Freedom [Afghanistan] and Operation Iraqi Freedom [Iraq] are both

contingency operations because they call to order the Ready Reserve as defined in 10 U.S.C. §

12302.101

Thus with the addition of the new language civilians accompanying the armed forces

in the field were once again subject to the UCMJ. In specific, contractors, had been found to be

95

John Warner National Defense Authorization Act for Fiscal Year 2007, H.R. 5122, 109th

Congress, (2006). 96

Id. note 95. In specific over $500 billion was allocated to military and defense related activates. 97

United States v. Burney, 6 U.S.C.M.A. 776, 788 (1956). ―Serving with or accompanying‖ has been interpreted to

mean that the civilian‘s ―presence [is] not merely incidental to, but directly connected with or dependent upon, the

activities of the armed forces or their personnel.‖ 98

Reid v. Covert, 354 U.S. 1, 35 (1957). ―In the field,‖ has been interpreted to mean at or near the battlefront or

where actual hostilities are underway. 99

10 U.S.C. § 802(a)(10), ―Persons subject to this chapter.‖ 100

10 U.S.C. § 101(a)(13). 101

Reed, supra note 61, at 15.

30

―serving with or accompanying‖ armed forces in the past.102

The Act became effective on

January 1, 2007.103

The Act was somewhat troublesome for the DoD because now along with

the MEJA, the DoD had concurrent jurisdiction for crimes that were covered under the UCMJ

and constituted a felony within the United States and exclusive jurisdiction for offenses under the

UCMJ that were either purely military offenses or below felony level. To clear up the confusion

in deciding what jurisdiction to prosecute civilians under, on March 10, 2008 the Secretary of

Defense, Robert Gates, issued a memorandum to begin instituting the new law (over a year after

it went into effect) stating in part that:

―It is important that the exercise of this jurisdiction [referring to the expansion of UCMJ

to contingency operations] be based on military necessity to support an effective fighting

force and be called for by circumstances that meet the interests of justice, such as: [w]hen

U.S. federal criminal jurisdiction otherwise does not apply or federal prosecution is not

pursued, and/or, [w]hen the person‘s conduct is adverse to a significant military interest

of the U.S. (e.g., may jeopardize good order and discipline or discredit the armed forces

and thereby have a potential adverse effect on military operations).‖104

Thus the DoD set the policy that they will only court-martial civilians under the UCMJ if the

offense is not a concurrent jurisdiction offense (non-felony or military only offense) and/or when

it‘s in their interest to do so. Id. The Secretary of Defense went on to lay out procedures for

alerting the Department of Justice as to the offense within their jurisdiction for them to

prosecute.105

The military has thus not used its new powers under the UCMJ for the most

heinous of offenses which all arise to at least a felony level (murder, rape, torture, etc.).106

The

end result of the Act expanding the jurisdiction of the UCMJ virtually left military procedure un-

102

United States v. Burney, 21 C.M.R. 98 (1956). The court found a military contractor to be within the definition

because of his sufficient connection to the military, in that he answered to them, he was quartered by them, he had

military personnel privileges, and the military directly relied on his specialized services as a technician. 103

John Warner National Defense Authorization Act, supra note 95. 104

Memorandum for Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, Under

Secretaries of Defense, Commanders of the Combatant Commands; UCMJ Jurisdiction Over DoD Civilian

Employees, DoD Contractor Personnel, and Other Persons Serving With or Accompanying the Armed Forces

Overseas During Declared War and in Contingency Operations; Secretary of Defense, March 10 2008. 105

Id. note 104. 106

Private Security Contractors in Iraq, supra note 19, at 29-30.

31

changed as the DoD already had reporting procedures for civilian crimes under MEJA in place

under DoD Instruction 5525.11, Enclosure 3.107

Not to worry, the military can still court-martial

corporate mercenary employees for disrespecting a superior officer, drunkenness, cowardly

conduct, and sodomy.108

IV. CONCLUSION

In conclusion there is much that needs to be done in the way of regulating corporate

mercenaries. Most of the legislation outlined above, both internationally and in the U.S., is ―all

bark and no bite.‖ International law that deals with issue by the roots, as the U.N. Mercenary

Convention did,109

doesn‘t attract any major war powers to sign on, and then those that do sign

on violate it without consequence.110

U.S. law that deals with the issue seems to be watered

down by the executive agencies that are charged with carrying out the law,111

112

or have their

force withdrawn by legislative agencies.113

114

In some cases the U.S. even actively protects

corporate mercenaries from the laws of other countries.115

All of the laws seem to share the

same common flaws, they all hold the individual employees of these corporations responsible for

their actions, none of them hold the corporation that employs, tolerates, and sometimes orders,

such behavior and conduct responsible. So in the off chance that several employees are

eventually prosecuted with the relatively weak legislation in place the corporation is not held

liable and it can simply replace its employees and factor it into the cost of doing business. It is

107

Department of Defense Instruction 5525.1, supra note 62. 108

Respectively; 10 U.S.C. §§ 889, 912, 899, 925. 109

U.N. Mercenary Convention, supra note 57. 110

Private Security Contractors in Iraq, supra note 19, at 18. 111

The Military Extraterritorial Jurisdiction Act, supra note 60. 112

The MEJA Expansion and Enforcement Act, supra note 64. 113

In the matter of Professional Security Officers Company, supra note 40. 114

Matter of: Brian X. Scott, supra note 42. 115

Coalition Provisional Authority Order Number 17, supra note 67.

32

indicative of the overall problem of regulating not just corporate mercenaries, but all

corporations. Now with corporate personhood on the rise in the United States,116

and their

almost international limited liability status,117

they appear to be virtually above the law.

Further, unlike people who must undergo immigration and naturalization processes in

order to become a citizen of another country, corporations only need to simply incorporate

themselves in the foreign country, which in some instances can be done in a few hours over the

internet or by mail. Take for instance Reflex Responses Management Consultancy, LLC, a

corporation based in Abu Dhabi, United Arab Emirates, a corporation created by Eric Prince,

founder of Blackwater, which will be serving as the United Arab Emirates‘ national private

military.118

Currently Prince is recruiting ex-military personnel from Columbia to the United

States to come serve in the U.A.E. Id. This being of no consequence after Blackwater became

the (self-admitted) ―poster child‖ for corporate mercenaries and the havoc they reap here in the

U.S.119

Now with the complete troop and contractor withdrawal deadline from Iraq of midnight

on December 31st, 2011,

120 and the majority of the dust spurred by corporate mercenary violence

settled, the United States needs to approach the problem of seriously regulating corporate

mercenaries. Not only does an infrastructure need to be created to deal with the employees of

116

Bradley Smith, Corporations are People, Too, National Public Radio, September 10, 2009. 117

Lawrence E. Mitchell, Article, Corporate Irresponsibility-America‘s Newest Export, Yale University Press,

(2001). 118

Mark Mazzetti and Emily B. Hager, Secret Desert Force Set Up by Blackwater‘s Founder, The New York Times,

May 14, 2011. 119

Blackwater Plans Shift from Security Business, Associated Press, July 21, 2008. 120

Strategic Framework Agreement, supra note 71.

33

these corporations, as proposed by the MEJA Expansion and Enforcement Act proposed,121

but

also legislation needs to be set in place that specifically regulates the corporations themselves.

Most effective would be an entire federal agency dedicated to the complete investigation of not

only incidents of human rights violations, criminal offenses, and the like, but the authority to fine

and sanction the corporations who are responsible for letting such acts occur. Ideally, the U.S

should lead the way after establishing such a model and institute it worldwide through a U.N.

Resolution so that international mercenaries and their corporate employers can finally be held

fully accountable for their crimes before the International Criminal Court (ICC). Given the state

of our current legislature and their priorities,122

as well as the fact the United States is

constitutionally incompatible with the ICC123

and that the U.S. will not subject U.S. citizens to

the ICC,124

there is likely no legislation in near sight that will effectively regulate corporate

mercenaries.

121

The MEJA Expansion and Enforcement Act, supra note 64. 122

Catherine Rampell, On Debt Talks, a Lose-Lose-Lose-Lose Situation, The New York Times July 25, 2011. 123

Lee Casey and David Rivkin, The International Criminal Court vs. the American People, The Heritage

Foundation , February 5, 1999. 124

Edith M. Lederer, US Supports War Crimes Tribunal for First Time, Associated Press, March 2, 2011.