What are Private Military Contractors (PMC)?

Private Military Contractors are private companies that provide military and security services to those who hire them. This could be a government, corporation, or international organization. They provide a wide range of services: combat services, training, logistics, intelligence gathering, and security. In the United States, PMCs are used for all the above-mentioned tasks. This, in my opinion, is a core reason why the United States military is the most powerful in the world. A lot of resources go into integrating and training service members to do their job. Oftentimes, jobs can be outsourced to a PMC that can do it more efficiently, and in the grand scheme of things, for less money. Having said that – the Department of Defense (DOD) has a problem with selecting PMCs that offer the highest price for the lowest quality. In other words, they contract with PMCs that deliver less-than-desirable results. The premise of the United States using PMCs to supplement our Armed Forces is a genius way of keeping America as the number one military superpower.

What laws govern PMCs when they are working overseas?

There are two main laws that govern PMCs during overseas assignments: The Military Extraterritorial Jurisdiction Act (MEJA) and the Uniformed Code of Military Justice (UCMJ). MEJA’s core purpose is to extend U.S. federal criminal jurisdiction to civilians overseas. [1] Specifically, DOD employees, contractors, and their dependents. It was established as an attempt to reach beyond U.S. borders, where the U.S. criminal law typically has no power. To fall within the jurisdiction of MEJA, the crime must occur outside the U.S. Territory, the perpetrator must fall within the personnel groups above, and the U.S. federal courts must normally have jurisdiction over this type of crime. The UCMJ has its pitfalls jurisdictionally when it comes to PMCs as well. The UCMJ is the legal framework that governs the conduct of the United States Armed Forces.[2] However, it does not apply to PMCs if there is no declared war, they do not have a military chain of command, and they are not contracted with the DOD. For example, if a company contracts with the CIA or the State Department, then the UCMJ has no jurisdiction over that company’s agents. If MEJA doesn’t have jurisdiction and the UCMJ doesn’t have jurisdiction, then how is the United States going to ensure that it has law-abiding contractors? The best-known gap filler is that the local laws will apply. This is where the water really starts to get murky. What if no local laws apply? What if all three jurisdictions apply? Who has authority?  Welcome to Legal Limbo.

How do PMCs know what law to follow?

How are private companies supposed to properly inform, train, and support their employees without knowing the exact law that will govern them if an incident occurs? The most historic example of this ‘Legal Limbo’ was the incident at Nisour Square, Iraq. A United States government PMC, previously known as Blackwater, was providing security for U.S. diplomats and had responded to a nearby car bombing. The controversial facts of the case indicated that the contractors that responded killed and injured many Iraqi civilians.[3] The problem that arose was determining which body of law applied. The UCMJ and MEJA did not have jurisdiction, since Blackwater was not contracted with the DOD, but with the State Department. MEJA, at that time, did not have jurisdiction over the State Department. Iraq technically had jurisdiction over the case because the crime occurred on Iraqi soil. However, Blackwater – at the time – had immunity from Iraqi prosecution under Coalition Provisional Authority Order 17. After several failed prosecutions, the case was revived in 2014, and the Blackwater contractors were held under MEJA. The prosecution argued that because the mission of the State Department and the Department of Defense were so closely tied to military operations, Blackwater contractors should be held to MEJA jurisdiction.

Right or wrong, the Blackwater case was a clear mishandling of the application of the law. Blackwater found a loophole. They sat directly in a grey area of the law, an incident occurred, and they were raked over the coals for it. Jurisdictions exist for a reason. They are boundaries that define a court’s authority to hear and decide a case. If a court or legal framework does not have jurisdiction over an incident, we cannot stretch the law to apply to it. This creates a whole host of issues: why did we stretch it in this situation and not that one? Why does it apply to this person and not that one? Or this company and not that one?

As stated above, a critical component of what makes America’s military so powerful is the integration of the private sector. Capitalistic innovation and efficiency are what drive American war fighting, and better yet, war-winning. However, if the law that governs these PMCs is ever-changing and somewhat “fluid” – how can we expect the best and most innovative companies to want to contract for the United States? We need clearer jurisdictional lines between the laws that govern Private Military Contractors overseas. It is unfair and unjust to not establish clear laws that govern our efforts. By striving for greater transparency regarding which laws apply in certain situations, I believe that Private Contracting Companies will have a greater desire to contract with the United States. Companies weigh risk-to-reward ratios. If the U.S. does not properly communicate the potential risks – through clear jurisdictional boundaries – then companies in the private sector will be less likely to seek government contracts.

[1] https://www.justice.gov/jm/jm-9-20000-maritime-territorial-and-indian-jurisdiction#9-20.116

[2] https://vwac.defense.gov/military.aspx

[3] https://www.justice.gov/archives/opa/pr/four-former-blackwater-employees-sentenced-decades-prison-fatal-2007-shootings-iraq