2003, Abu Ghraib prison, Iraq: several suspicious deaths of prisoners are uncovered and investigated where US military and CIA contractors (from CACI and TITAN, now L-3) were involved. Fast forward to 2004: 256 Iraqi detainees from Abu Ghraib prison sued CACI International and TITAN Corporation for participating in and directing acts of torture, war crimes, crimes against humanity, sexual assault, as well as cruel, inhuman, and degrading treatment at that facility (Business and Human Rights Resource Centre 2013). September 16, 2007, Nisour Square in Baghdad, Iraq: Blackwater contractors, working under a State Department contract, kill 17 civilians and injure 20 during a firefight. Fast forward to September 11, 2009, Washington, DC: a Court of Appeals dismisses the charges against contractors and claims they were under US government contractor immunity. More recently, in 2014, after a number of appeals regarding the Court of Appeals and Supreme Courtās decision about Abu Ghraib, which ended with a dismissal of charges, detainees filed a suit against contractors again, but still without a favorable outcome. Also, in 2015, in Washington, DC, four of the Blackwater contractors involved in the Nisour Square Massacre received a sentence from a federal judge after years of dismissals and new trials. These lengthy sentences were thrown out on August 4, 2017, by Federal Appeals Court and it ordered a new trial.
These examples are just the most reported ones, but they illustrate well the state of the US regulation regarding private security contractors operating in combat zones overseas. While there are a great variety of such corporate security actors, the present research is specifically focused on the contractors who carry arms and may potentially use violence while providing their services, even though they are considered civilian contractors. For instance, there are companies, like KBR, that have solidified their role as a logistics provider that provides food, fuel, or laundry services in complex, hostile environments. 1 The most common misconduct issues related to those types of services are overcharging and difficulties in the control of the delivery of these services.
Even though they are repetitive and important, those are not the focus of this research. Rather, focus here is on companies like Triple Canopy, former Blackwater/Xe Services/Academi (all parts of the Constellis Group now), former Aegis (acquired by Garda World), and former Armour Group (now part of G4S), which all provided protection services and transport for government representatives while visiting or working in complex, hostile environments. These companies may provide security and transportation services (protection of properties, objects, and people) or intelligence servicesāin the context of prison interrogation, for example 2 āand they represent around 10% of all civilian contractors employed by the US government. 3 The regulatory challenges most feared by the public are related to possible harm or death of civilians (as stated above) without adequate legal consequences.
Compared to other areas of study of private security contractors, such as growth of industry and use of PMSC (Chakrabarti 2009; Buzatu and Buckland 2010; Krahmann 2010a; Bruneau 2011; Kinsey and Patterson 2012; Axelrod 2014; McFate 2015), or standing in international law and surrounding mercenary debate (Kinsey 2005; Percy 2007; De Nevers 2009a; Petersohn 2014; Lopez 2017; Dickinson 2005; Bakker and Sossai 2012), regulation has been somewhat neglected when the actual empirical research is concerned. The topic of regulation does not have a consensus concerning the best way to be accomplishedāas a self-regulation of industry or legally imposed by nation states/international organizations (Avant 2016; De Nevers 2009b, 2010; Schaub and Kelty 2016; MacLeod 2015); the effectiveness and quantity of it (Brickell 2010; Clapham and Zellweger 2013; DeWinter-Schmitt 2017; Drutschmann 2007; Hurst 2011; Loader and White 2017; Percy 2013; Ralby 2015; Snell 2011; Tiefer 2009) or capability to hold companies responsible in contracting, host or states where companies are founded (Armendariz 2013; Avant and De Nevers 2011; Carmola 2014; Center for Constitutional Rights 2015; Eichler 2014; Human Rights First 2008; Krahmann 2016a; Singer 2003a). This opposition between arguments about quantity of regulation reveals that there is, perhaps, a lack of effective regulation, and regulatory framework is insufficient in the face of activities of private security companies (Chesterman and Lehnardt 2009, 2).
Even though there have been a number of important contributions in this field (as will be explored more ahead) and empirical research became more common, there is still a large gap between what is commonly accepted wisdom and research-based evidence. In the US case, some of the most commonly accepted perceptions for lack of more research on regulation are the off-timing of the issue within American politics (related to the decrease of problematic interventions abroad, which resulted in fewer incidents) or so-called āpolitical reasonsā that generally need deeper empirical-based analysis than those existing. 4 This book departs from considering existing analysis insufficient. It delves into the knowledge of the regulatory practices in order to deconstruct some commonly accepted wisdom, and seeks, within the arguments, to explain the current state of a regulatory framework of a country that, by recent indicators of US President Trump, considers (sooner than some might have expected) their strong comeback.
1.1 Literature Review
The previous literature covering the private security industry is vast, and gained momentum with Singerās (2003b) introduction to the military service industry and its broader implications. This book helped to focus greater academic attention on the fast expansion of the industry, but, at the time, did not have much evidence to present, since it came out in the early days of Iraq and Afghanistan interventions. It did a great job of explaining from where these companies come and their differences from the infamous mercenaries. Research focusing on regulation is more limited, and, in a general mode, might be divided into two generations.
The first generation encompasses the period between 2000 and 2010/2011, the period when regulatory issues first had been raised, particularly by the heavy employment of PSCs by the UK and USA in Iraq and Afghanistan. The end of the first generation aligns with the international multi-stakeholdersā attempt to develop professional management standards (ANSI PSC.1 ). The second generation encompasses the period up to 2016 and is marked by the recognition of the scholars that another perspective of the regulatory process was necessary (Avant 2016).
The first generation rose up due to an outcry for bringing up issues of regulatory vacuum, lack of proper definition of private security providers in complex environments, and their differentiation from mercenaries to the attention of both the academic community and general public (Herbst 1997; Brayton 2002; Singer 2003b; Carney 2005; Kinsey 2005; Krahmann 2005a, c). The most prominent dimensions of the regulatory process explored in this period have been regulations by the states, either at the national or international level (Whyte 2003; Krahmann 2005b, 2013; Percy 2006a, b, 2013; Gaston 2008; Smith 2008; Chesterman and Lehnardt 2009; De Nevers 2009a; Bruneau 2011; Taylor 2011), and their normative and legislative limitations (Avant 2007; Percy 2007; Kinsey 2008; Lanigan 2008; Scheimer 2008; Tiefer 2009; Dickinson 2011b; McKinnon 2011; Bakker and Sossai 2012). Moreover, continuous issues have been raised within the first phase and explored throughout the second phase. Those include looking at the impunity of PSCs (Scheffer 2009; Leander 2007b, 2010c), their (PSCs) accountability (Dickinson 2005, 2011a; Schooner 2005; Chapman 2010; Kovach 2010; Mehra 2010; Hedahl 2012; Brown 2013; Kelly 2014; Ralby 2015), moral and ethical constraints (Thumala et al. 2011; Andreopoulos and Brandle 2012; Perez 2012; Machairas 2014; Pattison 2014), and political limitations of regulation (Avant 2005; Krahmann 2010b; Avant and De Nevers 2011; Leander 2011a; Kinsey and Patterson 2012; Ćstensen 2013; Erbel 2016).
The beginning of the second generation of regulatory research is recognizable by including non-state actors as a part of the regulatory process, particularly visible by the inclusion of governance, governability, and informal regulation as keywords. This generation surged as a consequence of the regulatory context itself, where, from the late 2000s, more interaction is visible among industry, non-state actors (particularly NGOs working in the protection of human rights), and the states (contracting and receiving PSCs ) to accomplish more effective modes to regulate the industry. The focus is on the professionalization of the industry (Joachim and Schneiker 2012; Carmola 2014) and the impacts of multi-stakeholdersā initiatives (PSC.1 , ICOC and ICOCA , and ISO 18788) on the regulatory process, instead of isolated events (Leander 2012; Anders 2013; Armendariz 2013; Dupont 2014; Buzatu 2015). While throughout most of the period (2011ā2015), there is a rather shy attempt to include non-state actors as an integral and important part of the regulatory process (De Nevers 2010; Spearin 2010; Gomez del Prado 2011; Dickinson 2013; Krahmann 2013; Dupont 2014; Joachim and Schneiker 2015), more recentl...