What happens when you put two military forces within close proximity with each other, do not integrate C2, or otherwise share IFF resources? Is it called friendly fire when a US military force fires upon a US corporate force?
The Marine Corps Times, Boston.com, and NPR have raised the profile of an incident last month where US Marines halted a private military force comprised of US and Iraqi citizens…
Marines with Regimental Combat Team 8 detained 19 civilian contract
workers in Fallujah, Iraq, in late May after the contractors were seen
firing from their vehicles on Marine positions and Iraqi vehicles,
according to a Corps press release.
The Marine Corps times is the only news outlet I reviewd that included
the reference the governing rule of law for private security forces, Memorandum 17 issued by the Coalition Provisional Authority in its last days (also stored here since the CPA website may be offline after 30 June 2005).
Private security companies in Iraq are regulated under Memorandum 17, a rule enacted
under the Coalition Provisional Authority that requires them to
register with the Iraqi Ministry of Interior and Ministry of Trade and
be free of a criminal record or terrorist ties. The memorandum also
spells out a “code of conduct” that stipulates that when contractors
use their weapons, they must “fire only aimed shots, fire with due
regard to innocent bystanders [and] immediately report [the] incident
and request assistance.”
The company involved, Zapata Engineering, put out a statement on 9 June 2005 disagreeing with the Marine’s account of being fired upon or witnessing Zapata’s men firing from their vehicles.
On Saturday, May 28, 2005, Zapata Engeineering employees were engaged in a routine convoy in Northern Iraq. Marine Corps personnel in a nearby outpost intercepted the convoy team. Citing
security concerns, the Marines escorted the convoy without incident to
Camp Fallujah for questioning. Convoy personnel cooperated fully with
the Marines’ requests. Prior to this date, we had safely completed
hundreds of similar convoy missions in Iraq.
The fact Zapata Engineering was engaged on a US Army Corps of Engineers contract is important in how this could play out. Memo 17 requires registration and provides certain limitations ("primary role of PMC is deterrence") and constraints ("liable under applicable criminal and civil codes") but enforcement requires the backing of the US government.
The UK House of Commons issued a report in 2002 identifying the US as having the most
extensive regulatory regime, partially as a result of attempts to control weapons
technology and partially as a result of the American legalist tradition. The International Traffic in Arms Regulations (ITAR) of 1986 has a significantly high threshold and limited functional oversight. A functioning bilateral Status of Forces agreement (CPA’s Order 91, also available here, is a related problem here) would be indicative of a functioning government capable of upholding its contractual obligations.
The US Military Extraterritorial Jurisdiction Act (MEJA) of 2000, along with the Uniform Code of Military Justice (UCMJ), apply to persons who are employed by or accompanying the armed forces outside the
United States or who are members of the armed forces and subject to UCMJ and
who are not a national or resident of the nation in which the crime occurred.
The punishment for committing the new crime is that which would have been
imposed under federal law had the crime been committed in the United States. However, Zapata’s forces were not accompanying US armed forces and MEJA has no teeth and has never been used.
There is always the humanitarian law bucket. The Alien Tort Claims Act (ATCA) of 1789 and the Torture Victims Protection Act (TVPA) of 1991 rely heavily on expensive prosecutions within the US. Zapata, if they were to press charges, would likely not have the financial resources or the strong case.
The most likely resolution of this situation is the US government threatening (with the potential to follow through) to terminate the contract with Zapata.
This incident is clearly a harbinger of things to come. What happens when things go more wrong? See a detailed timeline of the Belarus mercenaries conducting (possibly) extracurricular services for the Ivory Coast / Cote d’Ivorie November 2004. The retaliation by the French was severe and then promptly silenced by the same. This was likely due to their desire to limit foreign interest in their (re)colonial intervention.
