Benedict Sheehy

Legal control of the private military corporation

Two years ago a newspaper article of a few paragraphs reporting on an attempted coup caught the attention of the reader. The paragraphs referred to a private military firm being hired to assist in the overthrow of the government. Such an event sat uncomfortably with the reader and led to some informal discussions with colleagues. It did not seem right that a private individual could hire an army to overthrow a government. It goes against the premises of Western liberal worldview in which the state is the center and all powers within its territory are subject to it. It also contradicts the notion that the only violent challenge to a state can come from other states or from a popular or at least domestically instigated uprising.

From law firm to stock exchange listed law practice: an examination of institutional and regulatory reform

This article examines the institutional reforms that, among other things, brought about the listing of two law practices on the Australian Stock Exchange. Using the framework for institutional change developed by Greenwood, Suddaby and Hinings, the article examines socio-economic changes that led to government regulatory reform. It examines the conflicting norms found in traditional professional practice with the institutions of corporate law and the stock exchange. After a thorough examination of the reforms and the two distinctive listed law practices, it then evaluates the reforms in terms of the profession, the administration of justice and economics.

The Shifting Balance of Power in the Regulatory State: Structure, Strategy, and the Division of Labour

The objective of this article is to examine the structural change in government that has enabled the politically strategic changes in governance seen in many OECD countries over the past several decades. In so doing, the legal structures and political strategies underlying the regulatory state are explained. Drawing upon classical theories of the division of labour, two distinct divisions of labour – one legal, the other political – are identified that provide insight into the relationship between the legal structure and political strategies underpinning the emergence of the regulatory state. The implications of this article are that it provides a description of how the executive branch has been able to shift the balance of power significantly in its favour while at the same time divesting itself of its core constitutional tasks of governing the administrative arm of government.

Constituting Vanuatu: Societal, legal and local perspectives

Abstract Governance in Vanuatu has been a source of concern for Australia as it forms part of Australia’s ‘Arc of Instability.’ Vanuatu has adopted a modified Westminster system as that system is often advocated as the model for constitutions and governance around the world. In various former colonies local populations were expected to simply absorb its liberal democratic principles apparently on some assumption that such principles were an innate part of human nature. Most readings of history would come to a different conclusion. Vanuatu illustrates this error and the complexities of a society that not only creates a broad challenge for governance, but undermines the credibility of simplistic, universalist approaches of liberal solutions, including institutional transplants, to these challenges. This paper asks questions about the nature and status of law in and governance of society in Vanuatu and then examines various answers, from broad social perspectives and academic sources to interviews conducted among members of the Vanuatu community. It concludes that the system fails as insufficiently attuned to the realities of the society that makes up Vanuatu. That is to say the system fails to effectively address the needs and interests of the population, and fails to sufficiently incorporate the indigenous systems in situ.

The State, Control of Violence, and the Private Military Corporation

This chapter examines nation-states and PMCs in the domestic context. It conceptualizes the PMC somewhat differently in that the PMC in the literature follows a taxonomy focusing exclusively on problems associated with foreign activity. While to do so is both heuristically sound and reflective of the majority of concerns about the PMC, to a certain extent it ignores the 8001b gorilla in the room. This chapter conceptualizes the PMC as an organized, armed, well-financed private group in its home state. Such groups are usually referred to as paramilitary, which indeed they are, just as the PMC is. While paramilitaries may have different motivations in addition to profit, they are engaged in the same fundamental activities of changing the distributions of the spoils of war and other violence. The chapter begins with a review of the nation-state and related notions of sovereignty, including the monopoly of violence. It then turns to examine in detail the Rule of Law and constitutional limitations. Next, it reviews the privatization of defense and issues surrounding domestic accountability. Finally, it turns to examine the nation-state’s use of PMCs extraterritorially. Assimilated into this analysis is the role of the PMC as a foreign policy tool. The analysis will be underpinned by five case studies in the contemporary international context: Iraq—Supplementing unilateral action, Sudan—Avoiding public scrutiny, East Timor—Honoring international commitments, Equatorial Guinea—Advancing domestic values on the international stage, and the Balkans—Achieving conflicting objectives by sleight of hand.

Private Military Companies: The New Face of War

There is a widespread general assumption about warfare: military responsibilities fall into the exclusive domain of the state. However, prior to the 1648 Peace of Westphalia and the emergence of the modern nation-state, military entrepreneurship was common. At this time, in fact, war was the biggest industry in Europe. Military businessmen became rich renting out their “armies for hire,” and the Thirty Years’ War was the “heyday for hired armies.”1 After 1648, the modern state bureaucracy took over the conduct of warfare.2 Commencing with the Peace of Westphalia, and the dismantling of Wallenstein’s 120,000 strong militia,3 the state increasingly sought to consolidate its grip on military power with the aim of being the central and exclusive protagonist in military matters.4

Private Military Firms under International Law

In Angola, Executive Outcomes, a South Africa-based PMC, used fuel air explosives—a highly effective but particularly tortuous weapon;1 in Iraq the use of untrained PMC personnel in interrogation resulted in the widely publicized Abu Ghraib prison scandal. Even the “War on Terror” has not been spared. The tentacle of the PMC is manifest in the emerging practice of the United States government labeled “extraordinary rendition”—an insidious scheme involving the transfer of terrorism suspects to third countries that harbor no qualms about using all manner of processes and procedures to “extract information.”2 As in the case of the Abu Ghraib abuse, various international norms were violated, including the Convention against Torture (CAT) and the 1949 Geneva Conventions which prohibit governments from taking such actions. However, the ambiguous legal status of PMCs under existing international law offers leeway for countries to not only bend but also occasionally breach their international legal obligations, thus threatening the very fabric of the international legal order.3

Conclusion Taming the Wild Dogs

As we have demonstrated throughout this work, the phenomenon of the PMC raises a number of thorny, complex, and perplexing problems. The PMC raises not only such relatively mundane matters as who should cook and do laundry for soldiers, but also such highly controversial matters as who should be permitted to guide missiles at enemy targets and who should be liable for the massacre of civilians in an unstable area. We have also drawn attention to the central role of economics in violence and the role of politics in the development and enforcement of laws. Further we have demonstrated that the PMC far from being a mere provider of technical services is by its very nature a provider of strategic advantage, a political power in any struggle. This strategic adviser role has become critical in the new battlefield where there are no frontlines. We have examined the PMC’s great utility to governments of all stripes for a number of legitimate and not so legitimate uses. We have noted the various areas of law and legal regimes which have bearing or potential bearing on the PMC, as well as the efforts of various countries to regulate them. We have examined the complexities and perplexing problems in those laws and regimes when attempting to unpack them and understand their applicability to the PMC. We have seen that from a number of different perspectives regulation is desirable, yet how and to what ends such regulation is to be created, designed, and implemented remains far from being clear.

The Corporate Form and the Private Military Corporation

Among the more prominent PMCs currently engaged in Iraq is Blackwater USA.1 It claims to be “the most comprehensive professional military, law enforcement, security, peacekeeping, and stability operations company in the world.”2 Blackwater USA comprises five companies: Blackwater Training Center, Blackwater Target Systems, Blackwater Security Consulting, Blackwater Canine, and Blackwater Air (AWS).3 Blackwater states: Our clients include federal law enforcement agencies, the Department of Defence, Department of State, and Department of Transportation, local and state entities from around the country, multi-national corporations, and friendly nations from all over the globe. We customize and execute solutions for our clients to help keep them at the level of readiness required to meet today’s law enforcement, homeland security, and defence challenges. Any and all defence services supplied to foreign nationals will only be pursuant to proper authorization by the Department of State.4 It notes elsewhere that “in addition, certain defence services or products provided to foreign nationals or supplied overseas may be subject to U.S. rules and regulations requiring licensing and authorization by the U.S. Government.”5 As to the extent of its facilities, it boasts, “over 6000 acres of private land, we have trained and hosted over 50,000 Law Enforcement, Military and civilian personnel.”6 In line with corporate profit-making objectives, Blackwater has hired former commandos from the Pinochet regime who can be paid a (relatively) paltry

National Regulation of Private Military Companies

4,000 per month.7