Military Lawyers, Private Contractors, and the Problem of International Law Compliance
George Washington University - Law School
New York University Journal of International Law & Politics, Vol. 42, p. 355, 2010
It is by now no secret that the United States government depends on private contractors to guard military facilities, escort convoys, conduct interrogations, train soldiers, and provide logistical support. And though private military contractors have been implicated in multiple instances of human rights violations, corruption, and waste, they are likely to become a permanent part of the military landscape. The key question, therefore, is not, should there be contractors but rather, how can we make it more likely that contractors will respect core human rights norms? And on this question, it will not be sufficient merely to focus on the degree to which these contractors are formally governed by international and domestic law. Certainly there are some gaps in our current legal framework that could usefully be amended to address the rise of contractors. But the problem is much less about the formal legal framework and much more about the subtle ways in which norm compliance actually operates on the ground. Accordingly, we need to understand how international legal norms are currently inculcated within the uniformed military, and then see whether those institutional structures are less present (or indeed are undermined entirely) in the private military context.
This article draws on qualitative empirical data to begin addressing these issues. I summarize conclusions drawn from a series of interviews I conducted with U.S. military lawyers in the Judge Advocate General (JAG) Corps. These lawyers, embedded with troops in combat and consulting daily with commanders, have, to a large degree, internalized the core values inscribed in international law – respect for human rights and the imposition of limits on the use of force – and seek to operationalize those values. Of course, the lawyers are not always successful, and it would be simplistic to assume that their accounts prove that the U.S. military always obeys international law. But their stories strongly indicate that the presence of lawyers on the battlefield can help produce military decisions that are more likely to comply with international legal norms.
Building from this study, I suggest that differences in organizational structure and institutional culture (and not just differences in the applicable legal regime) may be principal reasons that the rise of private military firms threatens core rule of law values. In particular, the use of contractors may jeopardize certain aspects of military culture, both because the intermingling of contractors and uniformed troops on the battlefield may weaken public values within the military, and because contractors operating outside the military chain of command may themselves develop a different organizational culture and set of values that come to predominate in conflict and post-conflict situations as contractors assume ever-greater responsibilities. Finally, I take up the daunting question of how we might go about trying to reform the organizational structure and institutional culture within these contractor firms.
By taking issues of organizational structure and institutional culture seriously, we can see that fostering greater compliance may sometimes be less a matter of writing new treaty provisions or increasing the activity of international courts and more a matter of subtly influencing organizations and the norms they inculcate. And while such a task is extraordinarily difficult, it is only by focusing on such organizational reforms that we can begin to address a world where states are not the only relevant agents of international law compliance and where private corporations with radically varying institutional structures are frequently the agents of human rights protection or violation.