PSC Regulation in Iraqan address to the Swiss Initiative,

Montreux, SwitzerlandNovember 2006

• This presentation was prepared for the Swiss Initiative, a cooperative effort between the Swiss Government and the ICRC that led to the publication of the Montreux Document

• This was prepared with the assistance of the Private Security Company Association of Iraq and at the request of the Iraqi Government. The Iraqi Ministry of the Interior reviewed and approved of the content and endorsed it at the meeting in Montreux

Regulation in Iraq

Christopher T. Mayer

Colonel, United States Army

The Operational Environment

• PSC/PMCs typically operate in environments where Rule of Law is compromised

– “Host Nation” governments my not have effective legislation, police, judicial, or penitentiary capability

– Applies to oversight of the legitimate use of force as well as to criminal activity and other unlawful violence

• Challenge is to use PSCs in a way that supports, rather than undermines legitimacy of the government and rule of law

– Demands realistic application of host nation government authority

War or Disaster

Intervention StabilizationStabilization RecoveryRecoveryHumanitarian ReliefHumanitarian Relief

“Reconstruction Under Fire”

Regulation Under Occupation

• CPA Order 3– Authorized weapons for PSCs

• Prohibited grenades, rockets, crew served weapons and other weapons unsuitable for the protective role of PSCs

• CPA Order 17– Effect of Status of Forces Agreement (SOFA)

– Subjects contractors to law of sending state, vice local law

• Immunity can be waived

– PSCs bound by CPA Memo 17

CPA Memorandum 17

• Registration with MoI and MoT

• Rules for the Use of Force and Code of Conduct

• Prohibitions on combat and law enforcement

• Vetting standards

• Minimum weapons training standards

• $25,000USD Bond

• Public liability insurance

• Weapons licensing and accountability

• Enables MOI to issue administrative instructions that supplement the Memorandum

• Audits by MoI

• PSC officers and employees liable under Iraqi criminal and civil codes, as well as those of sending state

Current Legal Status

• CPA Memorandum 17

• CPA Order 17

• DODI 3020.41 and DSS policy

• Existing Iraq Civil Law

• Commercial law

The Road to Legislation

• Pre-Referendum period: Numerous administrative rules issued and rescinded by MoI. Few registrations issued. Some Iraqi companies had registrations revoked. Near continuous coordination with US DoS and foreign PSCs thru the PSCAI

• 08 March 2006: MOI Opens PSC Registration with general letter to PSCs and a requirements list of 13 items taken directly from CPA Memo 17

• 03 September 2006: Minister of Interior holds high-level meeting with all MOI Deputy Ministers, senior advisors, and PSCAI. Discuss possibilities for future of PSC Registration, Draft Law, Weapons Cards, Visas, accountability of PSCs as well as accountability of MOI officials.

• 16 September 2006: PSC Conference at Adnan Palace held by MOI and PSCAI. PSCs are offered ability to pose questions. Draft law is discussed.

• 30 October 2006: Forum on PSC Draft Law – MOI attends as panelists and discusses Draft PSC Law in detail and relevance to PSC Registration Process.

MOI PSC Registration

• Deputy Minister of Information & Investigations (Formerly known as DM-Intelligence) says PSC Registration should be:

– Open

– Transparent

– Quicker

– Efficient

– Effective

Key Elements of Proposed Legislation

• Clear intent is to separate legitimate PSCs from militias

• Builds on CPA Memo and Order 17

• Adds provisions requiring:

– Weapons issues

• Combines provisions from CPA Order 3 and Memo 17

– Provisions for regulating:

• Uniforms and vehicle markings

• Number and types of weapons and ammunition

– Specifies weapons storage requirements (arms room)

– Additional administrative and record keeping requirements

– Increases bond to $50,000USD

– 3,000,000 Iraqi Dinar (ca. $2,000USD) bond per employee

• Specifies right of PSC employees to use deadly force in line of duty

• Specifies penalties for company officers and employees for beach of law

Concerns with Current Draft• Poorly written

– Law is often unclear, contradictory with other legislation, and terms are poorly defined

• Current draft focuses on “processes and records” rather than purpose and legitimate scope of PSCs

• Draft law only allows Iraqi companies to register

– Language discriminatory against foreign PSCs

• Seeks to limit the number of personnel in a company

• Arbitrary age limits for employees

• No requirement for training on the Rules for the Use of Force (RUF)

• Lack of a probationary period

• Needs to more clearly articulate openness, transparency, and accountability

• Needs to incorporate phased implementation

• Concerns regarding “due process”

– Draft law makes MoI prosecutor, judge, and jury

The Road to Implementation

• Law is still very much in Draft stages

– There has not yet been a review by MoJ

– MOI Legal estimates at least a year until implementation

• Coordination continues between MoI, US Embassy, MNF-I (MNSTC-I) and PSCAI

– Includes open fora, such as the 30 Oct meeting

• For time being, CPA Memoranda and Orders, with MoI administrative regulation provide adequate oversight

– Provides time to produce good legislation

– Replacement law important to Government legitimacy

Closing Thoughts

• PSC/PMCs typically operate in an environment where Rule of Law has been compromised

• Armed contractors must operate in a manner that promotes Rule of Law

• Armed contractors must operate in a manner that promotes the legitimacy of the civil government

• Current Iraqi draft legislation builds on previous regulation

• PMC/PSCs are actively engaged with the development of legislation