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PMSCs IGWG – U.S. Statement on Domestic Legislation
“Accountability for human rights violations/abuses of PMSCs” — U.S. Domestic Law and Regulation
August 31, 2012

Statement by the Delegation of the United States of America

Open-Ended Intergovernmental Working Group on
Private Military and Security Companies, August 13-17, 2012

Thank you Mr. President.

I’d like to start with a general observation: states have plainly taken different approaches to regulating this industry; and that is completely appropriate.  States not only may play different roles – as contracting state, home state, or territorial state – but may also have different needs.  In some cases, one issue may be capacity building.  For other states, like ours, one issue may be the extraterritorial reach of the law.  That is why it remains so important in working on this topic that we recognize that there is no one-size-fits-all solution.

But it’s also very interesting to see what lessons we can glean from the experiences of other states.  And that is a conversation we are interested in continuing.

With that in mind, I’d like to provide a brief overview of some of the relevant U.S. laws and regulations.  Like many other governments and international organizations, we have expanded our use of contract personnel in recent years.  And we have learned important lessons as a result.

The U.S. does not have a single law respecting PSCs and PMCs – rather, we have a web of interlocking provisions that address different issues related to this industry.

One category of measures is those regarding procurement and export of PSC or PMC services, where the United States may be either or both a contracting or home state. In our capacity as contracting state, extensive requirements have been incorporated into U.S. Government contracts regarding selection and vetting of personnel, training, and standards of conduct.  For example, the Worldwide Protective Services contract used to protect U.S. diplomats in high threat environments includes mandatory country-specific cultural awareness training for all security contractors prior to deployment.  The Worldwide Protective Services contract also offers an example of improved oversight of security contractor personnel.  State Department employees are embedded with contractors to provide direct operational oversight of all protective motorcades, and video recording systems and tracking systems are installed in vehicles to enhance oversight and contractor accountability.  Furthermore, U.S. law prohibits the government from contracting for the performance of inherently governmental functions, and our Office of Management and Budget has recently published guidance establishing government-wide policy addressing this issue.  It identifies examples of inherently governmental functions, including the circumstances under which security functions are considered to be inherently governmental.  In our capacity as home state, under the Arms Export Control Act (AECA) and the International Traffic in Arms Regulations (ITAR) the United States controls the export of defense articles and defense services by PSCs and PMCs by requiring that companies obtain a license or other authorization before exporting such defense articles or defense services.  These terms cover a range of activities, such as military training of foreign units and forces.

A second category of measures relates to accountability.  Here, the United States can and has itself taken a range of actions, from criminal prosecution to contract measures, and it is also possible for private parties to bring suit under certain circumstances.  It is important to note that while there have been circumstances where immunity from the jurisdiction of the host government has been granted for the activities of PSCs working for the United States government abroad, those have been the exception rather than the rule and have been tailored in coordination and with the approval of those governments in whose territory the contractors are operating.  On the criminal side, the United States has exercised jurisdiction under the Military Extraterritorial Jurisdiction Act (MEJA) and the Uniform Code of Military Justice (UCMJ) to hold contractors accountable for violations of our laws.  In addition, we support broadening and clarifying the scope of extraterritorial criminal jurisdiction.  The Civilian Extraterritorial Jurisdiction Act (CEJA), for instance, was introduced in the Senate last year as Senate Bill 1145 and is currently pending.  On the contract side, familiar contract mechanisms exist under U.S. law for holding accountable contractors that fail to meet contractual requirements.  They include performance-based deductions, non-extension of option contracts, negative performance evaluations, termination for default, and suspension/debarment.  The False Claims Act also provides a mechanism for whistleblowers to hold accountable contractors that engage in fraud on a U.S. Government contract.    Finally, private parties may bring suit under state common law or under federal statutes.  In briefs the United States has filed in such suits, we have made clear that accountability is one of several interests that must be taken into account.