The Privatisation of Security in the Kurdistan Region of Iraq

By Twana Faris Bawa

Kurdistan is technically a federal region of Iraq - a weak state in dire need of security sector reform. This highly topical and relevant contribution to international relations argues that its future is dependent on the private security industry to help develop and pave the way for foreign investment and even its establishment as a nation state.The private security industry has expanded exponentially in recent years. This raises a number of issues, of which the question of regulation is the most important. There is no international legislation that specifically deals with private security companies. In the Kurdistan region of Iraq it is clear that specific laws regarding the activities and conduct of private security companies must be created in order properly to regulate the industry and help prevent abuses from being committed by those who can operate in a legal vacuum. This is especially pertinent in this region owing to the weakness of the security sector since the Iraq war of 2003.This book argues that the future of Kurdistan is dependent on the private security industry to help develop state security and pave the way for foreign investment. Very little research has been carried out on this issue and there is scant information regarding the private security industry in the region. Dr. Twana Bawa has carried out substantive research, interviewing key figures in the security sector and drawing on information from existing regulatory practices in order to develop an indicative model highlighting the key elements that should appear in a viable law concerning the regulation of the private security industry. This book will be of interest to students of international relations, of civil, national and international security, police academies, law enforcement and security management. Security studies is an expanding discipline with growing contributions from a variety of academic circles and at the core of the subject is a debate of what issues should be included.

• Language: English
• Publisher: University of Buckingham Press
• Release date: Jan 31, 2015
• ISBN: 9781789551334

Book preview

The Privatisation of Security in the Kurdistan Region of Iraq

The Privatisation of Security in the Kurdistan Region of Iraq

by

Dr. Twana Faris Bawa

First published in Great Britain in 2014 by

The University of Buckingham Press

Yeomanry House

Hunter Street

Buckingham MK18 1EG

© Twana Bawa

The moral right of the author has been asserted.

All rights reserved. No part of this publication may be reproduced, stored or introduced into a retrieval system or transmitted in any form or by any means without the prior permission of the publisher nor may be circulated in any form of binding or cover other than the one in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser.

A CIP catalogue record for this book is available at the British Library

ISBN 978-1-908684-51-6

I would like to dedicate this work to my father, General Faris Bawa, it was my father’s dream that every child in Kurdistan would have access to education, something he did not have the opportunity to have, sacrificing most of his life in the mountains of Kurdistan. My father learned to write and read while being imprisoned by the Iraqi Baath regime and he always encouraged me to get educated. I have experienced my father’s guidance day by day. He is the one who let me finish my degree. I will keep on trusting him for my future.

Contents

Foreword

Acknowledgements

Abbreviations

Introduction

Methodology

Literature Review

Traditional explanations for the rise of private security

IThe Kurdistan Region of Iraq

The 1991 Uprising – Rapareen

Elections and the Formation of the Kurdistan Regional Government

The Kurdistan Region of Iraq from 2003 to Present Day

Article 140 of the Iraqi Constitution

II What are Private Military and Security Companies?

Mercenaries

Private Military Companies

Private Security Companies

The Categorisation of PMSCs

Doug Brooks, President International Stability Operations Association (ISOA) Categorisation

P.W. Singer Categorisation

Dangers of Security Privatisation

III Re-examining the Emergence of the Private Security Industry

The Anti-mercenary Norm and the State Monopoly on Force

National Regulation and State Control

Secrecy and the Shift from PMCs to PSCs

IV Existing Regulations

Private Security in International Law

U.S. Law

Military Extraterritorial Jurisdiction Act (MEJA)

Uniform Code of Military Justice (UCMJ)

International Traffic in Arms Regulations (ITAR)

United Kingdom Legislation

British Green Paper

South African Legislation

Iraqi Law

International Best Practices: The Montreux Document by International Committee of the Red Cross (ICRC)

VWeak States and the issues of PMSCs in Africa and Kurdistan

What Is a Weak State?

The Kurdistan Region and the Disputed Territories

Angola and Sierra Leone – Executive Outcomes and Tony Buckingham

Anti-Mercenary Legislation and how it Relates to South Africa

Heritage Oil Contracts in Kurdistan

VI Security in the Kurdistan Region

Kurdistan Security Sector

Security Sector Integration in the KRG

The General Security Committee

Deployment of Forces

The Emergence of the Private Security Industry in Kurdistan

Kurdistan Regional Government - Existing Regulations

Case Study 1: Zrary

Case Study 2: Khalid Raouf

Media Survey in Kurdistan Region of Iraq

VII Regulating PMSCs in the Kurdistan Region

Developments in International Law

PMSCs and the Problem of Definition

Options for International Regulation

Security Sector Reform in Kurdistan

The Use of PMSCs for SSR

The Use of PMSCs by Donor States

Proposals for National Regulation

VIII An Indicative Regulatory Model for the Kurdistan Region

Recommendations from other regions

Vetting of employees

MOI PMSC Department in the KRG

Sub-Legal Act – Application for a Licence

Bonds

Areas of Operation

Equality

Transparency and Accountability

Whistleblower protection

Oversight

Conclusion

Bibliography

APPENDICES

Appendix 1 Iraqi Draft Law 2007

Appendix 2 Iraqi Draft Law 2010

Appendix 3 Kurdistan Regional Government 2005 PSC Requirements

Appendix 4 Kurdistan Regional Government Revised 2009 PSC Requirements

Appendix 5 Kurdistan Regional Government MOI Licensed PMSC List 2011

Appendix 6 Blackwater & Greystone Letters, MOI Archive Documents

Appendix 7 Official Compensation Letter From PMC Dyncorp to Khalid Raouf

Appendix 8 Kurdistan Regional Government MOI Licensed PMSC List 2012

Appendix 9 Blackwater $25000 Bank Bond to Kurdistan MOI PSC Department

Appendix 10 Kurdistan Regional Government Asayish Departments List of Killed and Injured People by PMSCs in Kurdistan Region of Iraq

Appendix 11 Kurdistan Regional Government Asayish Department List of Killed and Injured people by PMSCs in Kurdistan Region of Iraq

Appendix 12 Official PSC Contract Kurdistan Region

Appendix 13 Proposed Law on Private Security Services in Kurdistan Region of Iraq

Appendix 14 Kurdistan Regional Government MOI Licensed PMSC List 2013

Appendix 15 Iraqi Draft Law 2013

Article 1 Purpose and scope of application

Article 2 Definitions

Article 3 Security Services

Article 4 Foreign Security Companies

Article 5 Security Forms

Article 6 Competent bodies

Article 7 Competencies of the Division for Private Security Services

Article 8 Appeals Commission for Private Security

Article 9 Kurdistan Professional Standards for Private Security Services

Article 10 Private Security & Military Company Licensing

Article 11 Background Verification for Private Security & Military Companies

Article 12 Requirements for a licence to provide Basic Security Services

Article 13 Additional Requirements for a licence to provide Specialist Security Services

Article 14 Licensing Security Worker

Article 15 Background Verification for Security Workers

Article 16 Requirements for all Security Workers

Article 17 Requirements for a Basic Security Worker Licence

Article 18 Additional Requirements for a Specialist Security Worker Licence

Article 19 Decisions of the Competent Body

Article 20 Duration of licences

Article 21 Certification of a Control Centre

Article 22 Authorisation for commencing operations

Article 23 Responsibility of Private Security & Military Companies for compensation of damage and insurance of responsibility

Article 24 Obligation to confidentiality

Article 25 Conflict of Interest

Article 26 Prohibited Behaviour of Private Security & Military Companies

Article 27 Authorisations and duties of Private Security & Military Companies

Article 28 Authorisations and duties of Security Workers

Article 29 Use of Force

Article 30 Carrying and use of firearms

Article 31 Security Dogs

Article 32 Security Equipment

Article 33 Notification of police and/or emergency services

Article 34 Notification of criminal offence

Article 35 Official Identification Cards

Article 36 Uniforms, distinctive signs and emblems

Article 37 Basic Vocational Training

Article 38 Specialised Training

Article 39 Inspectors

Article 40 Whistleblower Protection

Article 41 Data collection and maintenance by the Competent Body

Article 42 Collection and Maintenance of Data by a Private Security or Military Company

Article 43 Reporting of a Private Security or Military Company

Article 44 Suspension of a Licence

Article 45 Revocation of a licence

Article 46

Article 47

Article 48

Article 49

Article 50

Article 51

Article 52

Article 53

Article 54 Entry into force

Article 55

Foreword

The private security industry has expanded exponentially in recent years. This raises a number of issues, of which the question of regulation is the most important. There is no international legislation that specifically deals with private security companies. Many observers and commentators have attempted to include private security companies under the umbrella term of mercenaries, and feel that the anti-mercenary laws should therefore apply to private security companies. This book will argue that in the case of Kurdistan region of Iraq this is a flawed assumption, and it is clear that specific laws regarding the activities and conduct of private security companies must be created in order to properly regulate the industry and help prevent abuses from being committed by private actors that appear to operate in a legal vacuum. This is especially pertinent in the Kurdistan region of Iraq owing to the weakness of the security sector since the Iraq war of 2003. In some ways the Kurdistan region satisfies Max Weber’s definition of a state but technically the Kurdistan region is a federal region of Iraq. The very unusual status means that it is effectively a weak state in need of security sector reform. This issue will be explained in greater detail in this book. I would argue that its future is partly dependent on the private security industry to help develop state security and pave the way for foreign investment. Very little research has been carried out in the Kurdistan region on this issue and there is a paucity of information regarding the private security industry in this area of Iraq. I have therefore carried out substantive research in the region, interviewing key figures in the security sector and drawing on information from existing regulatory practices in order to develop an indicative model highlighting the key elements that should appear in a viable law concerning the regulation of the private security industry. This will hopefully lead to further developments in regulating the industry, and will help contribute to the literature surrounding the development of the private security industry in the Middle East and elsewhere.

Acknowledgements

I would not have been possible to write this book without the help and support of several individuals:

Foremost, I would like to express my sincere gratitude to my thesis supervisor, Dr. Julian Richards for the continuous support during my PhD study and research, for his patience, motivation, enthusiasm, and immense knowledge. He devoted an immense amount of time and effort to guiding me in this process and I certainly would not have fulfilled this goal without his patient, dedicated and expert leadership and direction.

Dr. Richards is someone you will instantly love and never forget once you meet him.

I would also like to thank Professor Anthony Glees for his encouragement, insightful comments, and hard questions throughout my educational endeavour at the University of Buckingham.

Additionally, this book would not have been possible without the support of my dear family and friends, half-a-world away in Kurdistan. They have never ceased encouraging me to aim high and reach my potential, and their steadfast support throughout my educational experiences has been deeply appreciated.

I wish to acknowledge and thank the persons and institutions who has supported me through the many and unavoidable mountains and valleys that comes with completing a PhD program. Special thanks to, Bawar Faris Bawa, Abdullah Ali, Haval Abdulkhalik, Dr Rawaz Mahdi Khoshnaw, KRG Ministry of Interior, Asayish Directorate Erbil, Peshmerga Farmanda Erbil and SLS security firm.

Furthermore, my family have been enormous help by being patient and allowing me to lock myself in for hours on end, when, I should have been spending more time with them. Their love provided my inspiration and was my driving force.

Abbreviations

Introduction

How can we make private security accountable, and to whom? Moreover, if complete accountability is not possible, might we at least be able to harness mechanisms of constraint that will help to deter private contractors from committing abuses? How can people whom contractors harm seek to either redress or at least find an opportunity for criticism or feedback? How can the government agencies for contractors work, supervise monitor and control their actions, while punishing them for misconduct? How can the organisational structure and culture of private military firms be reformed to try to ensure greater respect for public values? Furthermore, how can the media, public interest monitors, NGOs, and the citizens negatively affected by contractors find out what contractors are doing and make such activities known to a wider audience? Are certain types of privatisation more likely to result in abuse and fraud than others? In order to address such questions, we must think in terms of mechanisms for achieving greater accountability and constraint.1

Laura Dickinson

The private security industry has expanded exponentially over the past 20 years. Private security companies are employed by a multitude of governments and non-governmental organisations (NGOs) across the world in many different roles.

Since the Iraq war of 2003, considered by many to be the first privatised war2, the Kurdistan region of Iraq has experienced an influx of private security companies operating within the region. Numerous international PMSCs (Private Military and Security Companies) operate in Kurdistan, along with a large number of domestic PMSCs. Kurdistan is a transitional region that is in need of significant security sector reform, and relies on PMSCs to carry out some of the functions of traditional state security practices. Similarly, it is a fact that many international investment and development companies rely on PMSCs for security provision, and because of Kurdistan’s vast natural resources, there are many international PMSCs currently based in the region. As it stands, there are no legislative frameworks in place to regulate the operation of PMSCs in the Kurdistan region of Iraq.

The private security industry lacks sufficient regulatory measures both in the international arena and at the national level. Kurdistan is no exception, and at the time of writing lacks sufficient domestic legislation to regulate the industry. Clearly, it is important for PMSCs to be regulated in order to prevent abuse and ensure sufficient levels of accountability. It is clear that abuses have been carried out by the private security industry, especially in Iraq, and it is important that regulations are in place in order to prevent future occurrences. Similarly, there needs to be a certain level of accountability, so that if abuses are carried out, or disreputable behaviour is reported, then the companies themselves should be able to be held accountable for their actions. However, the situation in Kurdistan requires further explanation. PMSCs operate in many states across the globe, and perform a multitude of different functions. I would argue that in Kurdistan, private security is vital to the development of the region.

I would also argue that private security is an integral part of the fabric of the state in Kurdistan. A great deal of security provision is carried out by domestic PMSCs. Private security companies operate throughout the region in many roles, and form the backbone of domestic security provision. Because PMSC use is so widespread, it is important for the public to trust and fully understand the nature of the private security industry.

The focus on regulation originates from two interconnected subjects. The first of these is the traditionally-held conception that any form of mercenarism is inherently wrong. This is what Sarah Percy calls the anti-mercenary norm3. This norm will be looked at in greater detail below and has arguably shaped the development of the private security industry and the subsequent concerns over a lack of regulation. Secondly, the industry itself is developing much faster than the development of law and regulations. The growth and rapid development of the industry have meant that both international and national legislation have been unable to catch up, and have failed to produce adequate regulatory measures to prevent abusive and corrupt behaviour of the PMSCs and their operatives.

In order to successfully examine the nature and appropriate regulation of the private security industry it is important to fully understand the nature and development of the private security industry in Kurdistan. I will therefore examine the contemporary debates surrounding PMSCs, their development, problems of categorisation and the limits of regulation, with particular reference to weak and transitional states. It is also necessary to examine the unique nature of the Kurdistan region of Iraq and why the private security debate is so significant in this region. I will examine the history and development of the region and its unique position as a state within a state. The emergence of private security in the region also helps to explain and highlight the problems of a complete lack of regulation. In order to understand the nature of regulation and its relevance to the Kurdistan region, it is necessary to examine the legal frameworks from those countries and states that have specific legal measures concerning PMSCs and how to regulate them. This should provide a suitable legal framework from which to develop a set of regulatory models for regulating the private security industry in Kurdistan.

The culmination of this analysis, and a primary goal of this book, is to propose, by way of an indicative model, a new regulatory framework for the private security industry in the Kurdistan region of Iraq. This will go further than just setting out a set of regulatory measures; it will involve suggesting detailed revisions to the existing Kurdistan Regional Government (KRG) Ministry of Interior (MOI) guidelines to successfully implement new laws concerning the private security industry.

The emergence and rapid growth of PMSCs in the 1990s followed on from the general downsizing of the armed forces right across the world in the aftermath of the Cold War. However, more small-scale wars and the emergence of many new conflicts increased demand for military manpower and expertise and heralded a new era where private security companies would enter the marketplace. The redefinition of security strategies and the restructuring of the armed forces by Western governments resulted in the elimination of the non-core activities from the functions of many armed forces. These non-core activities have increasingly been replaced by various forms of alternative service delivery, and have increasingly been outsourced to Private Military Companies (PMCs) and Private Security Companies (PSCs).4

The current available evidence would suggest that the trend towards increased security provision by non-state actors is prevalent in all regions of the world. A confluence of supply and demand factors ranging from the ready availability of trained personnel in states which have downsized their security forces, to the chronic insecurity and poor quality of policing in many countries, appears to be driving this trend. Policy-makers must therefore learn to deal with the potentially serious implications of limited regulation and accountability of a market which continues to grow in both size and importance and is likely to be here to stay whether it is regulated or not. Similarly, I would argue, along with Kinsley, that we would much rather have a regulated private security sector than an unregulated one.5

Beyond the general media, the idea of private business as a viable and legitimate military actor has also begun to gain credence among a rapidly growing number of political analysts and officials from right across the political spectrum.6 Their activities have caught the attention of legislative officials in a number of countries and have led to the submission of legislation covering their actions.7 However, frequently inaccurate media coverage is one of the principal reasons why the military industry remains an enigma. Although numerous newspapers and magazine articles have been written on the activities of such firms, most of these have been long on critical headlines and short on earnest examination. Within academia, there have been a few articles and reports that have concentrated their efforts on particular companies, but the broader field remains largely uninformed. 8 Most studies of PMSCs have been generally descriptive rather than interrogative. Few have addressed the industry broadly or comparatively and general public knowledge of this largely secretive industry has still not advanced in a systematic manner.9 The reason is that the limited research carried out so far on military firms has focused primarily on case studies of individual companies or of single conflicts where they were present, most often in Africa where they made their first appearance.10

In addition to the United States (U.S.) and other developed countries, governments around the world have employed these contractors. Weak states or states embroiled in civil war have in many cases turned to companies that provide training and combat services. 11 Some have suggested that the client list of these firms is invariably limited to weak states with corrupt leaders. 12 For example, the government of Sierra Leone hired Executive Outcomes (EO) to fight back rebels who were terrorising the country. The firm is widely credited with winning the civil war and bringing peace. 13 Similarly as Isenberg argues, with the expansion of humanitarian work in areas which lack stability or reliable security apparatuses, PSCs have become an important mechanism for security provision; the work of PSCs includes helping struggling states to reform their security sectors.14 Great military powers such as U.S. and U.K. are the biggest employers of the private security industry but other developed countries across the world are employing their services as well.

It is clear that much of the work produced on private security companies has been influenced by the negative publicity received owing to the abuse carried out by private contractors in recent years. In Iraq, the Nisoor Square shootings in 2007, in which 17 Iraqi civilians were killed, were carried out by private military contractors employed by Blackwater. Similarly, the Abu Ghraib scandal involved several members of private military companies but the coalition forces were blamed in the media. The use of private security and military companies seriously affected the efforts of the coalition forces in Iraq to win the Hearts and Minds of the local civilian population. Incidents such as those at Abu Ghraib were widely condemned on all sides and were a major embarrassment to the coalition forces. It is widely believed that the abuse and mistreatment of the local population by the private security industry stimulated anti-Western sentiments and possibly strengthened the extent of insurgency in the process.

As noted, the focus of this book is the importance of private security in the Kurdistan region of Iraq, as previously there have not been any indepth studies on this newly established industry in the Kurdistan region. Similarly, the Kurdistan region is an unusual and rapidly developing transitional society where, I would argue, PMSCs are likely to be extremely central to the development of the region. In this way, it makes a particularly significant case study and can perhaps tell us a lot about the role of PMSCs in transitional societies more widely. I shall argue that the overwhelmingly negative perception of the private security industry does not necessarily translate to the Kurdistan region. Although certain abuses have been carried out by private contractors, this does not necessarily mean that the very concept of private security is flawed, simply that the current state of regulations needs to be improved in order to prevent such behaviour from being repeated. I shall argue that private security is not necessarily a bad thing, and that the Kurdistan region is in fact dependent on private security companies in order to aid positive development and help to carry out security sector reform (SSR), mainly because PSMCs are a key element of the implementation of SSR.

The central argument of my research shall be to test whether the anti-mercenary norm, which is understood to have shaped the development of the private security industry, can be seen to be applicable to the Kurdistan region. Traditionally, mercenarism and anything seen to be related to it, are seen as inherently morally offensive, which explains why the issue of private security is often controversial. This leads us to the question of whether private security can be seen as good or bad. As previously mentioned, I shall argue that the private security industry is not necessarily a bad thing, and my field research in the Kurdistan region will consider whether or not people consider the industry to be inherently negative. Similarly, I will consider whether the industry can be seen as problematic to the Kurdistan region or it may be the case that activity of the private security industry upsets the traditional state monopoly of force, and undermines the Weberian notion of the state use of force.15

Similarly, I will consider the relationship between PMSCs and weak or transitional states and regions such as Kurdistan. In the past, much of Africa has suffered at the hands of PMSCs, and it is important to consider the implications for the Kurdistan region, owing to its relatively weak state security sector. I will look at the current state of PMSC involvement in Kurdistan and suggest that the problems that are currently occurring (abuse by contractors), and the problems that may occur if the situation remains the same (a possible repeat of the problems that occurred in Africa), are best dealt with by developing substantive regulations to help control and regulate the private security industry.

At the time of writing there has been nothing written analysing the private security industry in Kurdistan. In this sense, the research I am carrying out promises to fill a gap, and as a researcher I have gained access to a number of KRG departments and their complete file archives, which shed a unique insight into the situation within the Kurdistan region. Similarly I have gained access to private security contractors who are often very elusive, and they have given me an exclusive insight into the operations of the private security industry in the Kurdistan region. I have also been given access to the latest Iraqi Parliament’s draft legislation. This has enabled me to prepare certain recommendations. The information that I have obtained has enabled me to gain an invaluable insight into the methods of the private security industry in Kurdistan region of Iraq, which is particularly significant to this debate and will hopefully fill certain gaps in the literature concerning the nature of private security. It is hoped that this research will go some way towards addressing the absence of critical studies on this subject. I have produced an indicative regulatory model for regulating the private security industry in Kurdistan, and this would not be possible without access to some of the material I have obtained. Furthermore, the Kurdistan region finds itself right in the middle of a deep turmoil sweeping the wider Middle East. This example of private security’s role within a transitional Middle Eastern state could prove to be highly indicative, and could help to inform developments in security sector reform, namely, legal regulation of security activity, professional training of security community, the need to ensure legal compliance and laws still to be made on security activity.

In the Kurdistan region, although less than in other parts of Iraq, there have been numerous incidents involving the shooting and abusing of civilians during high speed convoy protection missions. As will be investigated later, this is often due to the fact that the attitude of private contractors differs from those working for the state military. The notion of winning hearts and minds does not necessarily apply to the private security industry.

Worldwide, the private security industry is experiencing a period of rapid growth and, I would argue, has developed faster than the legal aspects. Legal frameworks are required to regulate the industry to ensure that it always acts lawfully. When effectively regulated and fully accountable, it has proven that it can make a valuable contribution to the provision of security. However, the activities of an uncontrolled or poorly regulated private