It is not the first time that the Bundestag [German parliament] has dealt with private military security companies. Now – in the third round – the government parties, supported by the Liberal Democrats [FDP], has accepted a proposal that seeks to "control non-state military security companies". In principle it sounds like a reasonable plan; after all, firms like Blackwater made for negative headlines in recent years.
Companies that earn a great deal of money with security services in war and crisis regions have experienced a real boom since the end of the Cold War. Some 300 such companies have several tens of thousands of employees in action in Iraq, in Afghanistan, in South America, and in many African countries. Their clients are businesses, aid organizations, and governments. In view of the scale of this activity, critics find fault with the fact that the state's monopoly on violence has been given up in many places and security has become a commercial commodity. Some describe these companies and their employees as a new mercenary class.
In comparison with the international situation, German companies play a rather minor role. That must also be said. Because the statement now adopted by the Bundestag calls on the German government to register the companies that are resident in Germany and to issue licences. With that, preconditions are created for the German security companies to be able to enter this market, worth billions. The way politicians from the Christian Democratic Union, Christian Socialist Union, Social Democrats, and Liberal Democrats [CSU, CSU, SDP, FDP] imagine it, the sector's own voluntary commitment to a code of conduct should help the companies to prove that they are serious contractors.
In the CDU and CSU there are also ideas about what areas the German companies, thus controlled, could be active in. Eckart von Klaeden, representative of the CDU/CSU party in the committee on foreign affairs, which was in overall charge of working out the proposal, though he excludes direct contracts from the German government, sees other possibilities:
"For example, one area of responsibility could be international organizations like the Red Cross or the United Nations, which attach quite particular importance to neutrality in their responsibilities in certain regions, but do not want to be protected by an army; instead, though, in such a case they would take advantage of the services of a serious security company. So I can quite readily imagine situations in which such a service can carry out a reasonable and good assignment."
The CDU politician's suggestion caused astonishment at the Red Cross, however. They did not want to make use of the services of private security companies. And fundamentally, armed aid operations can hardly be made compatible with neutrality as it is propagated by the Red Cross, announced the organization.
But this irresolution is not the only question mark in the Bundestag initiative that was adopted. Omid Nouripour of the Green Party criticizes the formulation that the government parties chose:
"They talk in a mishmash of private security and military companies. But taken in fact - thus at least taken legally - there are no private military companies according to international law. There can't be any such thing at all."
In spite of that, Green defence politician Nouripour does not want to forbid private security companies to accept contracts abroad. This total prohibition is demanded only by the Left Party in the Bundestag, in an alternative plan to the government parties' proposal.
Outside the Left Party, however, a total prohibition is regarded as unrealistic and impossible to push through. That is the view, for example, of Michael Brzoska, director of the Hamburg Institute for Peace Research and Security Policy [Hamburger Institut fuer Friedensforschung und Sicherheitspolitik]. He argues that in the meantime it has become impossible to imagine things without the private security firms' support services for the military, either at home or abroad. What is decisive, however, is the question of what tasks would be assigned to the companies and how they would be controlled. Brzoska does not believe, though, that the announcement adopted by the Bundestag points in the right direction in all respects. Among other things, the conflict researcher has considerable doubts about the sector's required declaration of self-commitment to a code of conduct:
"The situation in Iraq has shown that the firms are not in a position to assert themselves in the face of their member firms that don't commit themselves to following the code of conduct. And in my view, to that extent a self-regulation has failed."
Experience proves Michael Brzoska right: the international organization of private military security companies, the International Peace Operations Association, has such a code. But since 2001 these behavioural guidelines have been altered a dozen times.
Yet Michael Brzoska is extremely sceptical not only about the declaration of self-commitment to a code of conduct demanded by the governing parties and the FDP. He sees that the Bundestag decision also lacks concrete recommendations about how potential violations of such a code could be prosecuted according to criminal law.
Professor of law Rainer Keller confirms that so far, there have been major difficulties in applying German criminal law to private military security companies. Before a German public prosecutor could take action, as a rule, several preconditions must be met: thus, among other things, the act must also be a punishable offence in the country where it was committed. If that is not the case - apart from a few exceptions - as a rule, the German judiciary is powerless to do anything.
But the Hamburg professor points to another, quite different aspect: no German public prosecutor could investigate a case abroad without the approval of the local authorities. Yet even when the act is a punishable offence in both countries and when there is readiness to cooperate, then the entire process must also correspond to German standards, says Rainer Keller:
"Thus when they question a witness or a defendant there and put them under pressure, then it isn't automatically usable in Germany. That's an additional problem. So the whole matter is very complicated, loaded with very many preconditions, and for that reason the chances of effectively investigating are not excluded, but very limited."
In plain language: it is extremely unlikely that a German will be condemned by a German court for crimes committed in crisis or war regions.
There are examples of this. In his book "Export Hit Death", which has just been published, the author Franz Hutsch reports about a German who, as a mercenary in northern Afghanistan in late 2001, was said to have been involved in the murder of a Taliban prisoner. Kornelius – as the author calls him – had served in the Bundeswehr [German armed forces] and in the Foreign Legion and finally enlisted in General Dostum's militia in Afghanistan. In the book it says that in 2001 Kornelius fired 90 shots at a container in which prisoners were packed together. The man was never prosecuted by a court for that.
It may be that Kornelius' act is an abhorrent, isolated case. In the meantime, however, the reality is that armed members of private military security companies commit crimes in war and crisis regions, and the companies penetrate more and more into spheres that previously were under the jurisdiction of the state's monopoly of force. To that extent the question arises as to whether politics should not proceed much more forcibly against this dubious development. The announcement that was approved now in the Bundestag, on the control of non-state military security companies, will not meet the necessary requirements. It is rather oriented toward opening up the way for German firms to enter the market for security services abroad - and no one can say yet where it will ultimately lead.