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By Ashley Deeks

Congress is considering a bill that would grant the federal government broader power to prosecute wrongdoing by U.S. private security companies (PSCs) in Iraq and other war zones. U.S. lawmakers should move quickly to pass the bill, and then U.S. officials should encourage their counterparts in other governments to do the same.
Today, U.S. prosecutors are generally restricted to pursuing contractors hired by the Defense Department, despite the widespread use of PSCs by the State Department and other U.S. agencies. The proposed law would be an important tool to ensure basic control over many PSCs, most of whom previously have been beyond the reach of U.S. laws and immune from prosecution in Iraq.

Ensuring that U.S. courts can try contractors will take pressure off Iraqi officials to prosecute such firms, including those involved in the September 2007 shootings in Nisour Square.
The measure also will benefit U.S. agencies that rely on these contractors: If Iraq lifts contractor immunity, many security firms might leave rather than face an unpredictable Iraqi justice system.
Further, it’s easier to win the hearts and minds of Iraqis when they don’t view the United States as protecting people who have killed their countrymen.

Who’s in Charge?

But expanding U.S. criminal jurisdiction does not solve all difficulties. Other critical questions include: Who should control the entry into war zones of armed PSC employees? Who ensures that PSC employees are trained in weapon use and rules of engagement? Where does the vetting information come from? How should coalitions coordinate the movements of soldiers and PSCs?

The United States, perhaps more than any other country, has developed practical solutions to some of these dilemmas — solutions that are reflected in the 2008 Defense Authorization Act.
That’s why it should assume a leadership role among nations, such as Britain, Canada, and Switzerland that use PSCs in conflict areas. First, the United States should urge other nations to follow its lead.
Today, few nations appear to be able to prosecute acts committed by their contractors abroad, especially if the contractors are foreign nationals. Many PSC employees hail from third countries such as Russia, Nepal and Fiji. A PSC employee’s home country often has no connection to the state in which the employee works, and it cannot be expected to investigate alleged offenses committed by that national.

In contrast, representatives from the government that hired the PSC will generally be present in the state in which the PSC operates.
The United States should urge its coalition partners and allies to adopt criminal laws that reach their own PSCs, and to establish mechanisms to investigate allegations against PSCs. A large number of PSCs then would be subject to at least one country’s jurisdiction, even when the PSCs operate in countries with weak judicial systems.
And all of these states should put their contractors on notice about what criminal laws apply to them.
This approach to allies suggests a wider international opportunity for the United States. Many states and nongovernmental organizations have called for comprehensive regulation of PSCs.
The Swiss government has hosted a series of discussions among affected states, PSCs and the International Committee of the Red Cross to examine existing rules related to PSC activities and to develop nonbinding “good practices.”

The Swiss have assembled the right players and are pursuing the right goals. Given its experiences, the United States is in a strong position to take a leadership role in these meetings, and it should urge the group to develop realistic and effective international guidelines on the most pressing PSC-related issues.
This could include how to ensure adequate training for different categories of PSCs and how states might cooperate to vet PSCs and their employees.

Bring the U.S. to the Fore

For several years, the United States has been on its back foot in discussions with allies about what rules apply during armed conflict. The issue of regulating PSCs gives the U.S. government an opportunity to start to shift the pendulum in its favor.

If the United States chooses not to engage, or focuses exclusively on purely unilateral solutions, other states and NGOs may develop rules that the United States finds impractical, ineffective or unnecessary.
The United States should seize an issue that matters to it, apply real-world experience to bring some order to the chaos and, in the process, reclaim some of its historical standing on these issues.

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