The qualitative nature of reviewed literature and the descriptive nature of the theories used in this study will influence the thesis itself to be descriptive and a qualitative exploration of a phenomenon's existence and effect. However, this author's study will attempt to develop conclusions that go beyond descriptive theory and scholastic calls for further public debate of a contemporary phenomenon. This author's study will therefore analyze qualitative data in order to arrive at a certain conclusion that directly addresses the research question regarding PMCs and their relations with the state, which the reviewed literature has failed to directly answer. Also, the study will analyze qualitative data within the context of formulated substatements and theories related to these sub-statements. Sub-statements will therefore be tested by gathered and analyzed qualitative data.

CASE STUDIES

The predominant focus on PMC presence in Iraq, as discovered through a review of existing literature, has allowed this author to determine Iraq to be the most appropriate research site. The main case studies of research will be divided according to the primary research question and secondary investigation of this thesis. Hence, the primary case study will be the Nisour Square Massacre and the Abu Ghraib Prison Scandal. The first section of the primary case study will discuss the American PMC, Blackwater (now known as Academi) and their activities in Iraq from 2004–2011. Specifically, the author will focus on the Nisour Square Massacre of 2007 and how Blackwater is described in public discourse in the years before, during and after the massacre. The second section of the primary case study will be the 2004 Abu Ghraib Prison Scandal, in which two PMCs were implicated. The author will focus on the ‘self-discourse’ of these two PMCs, Titan Inc and CACI and examine public discourse surrounding both PMCs (and PMCs in general) after the scandal was reported.

Both these cases have been selected for their publicity, allowing easier access of information on each case, and also because of their prospective effects on public perceptions of state legitimacy in addition to their prospective effects on perceptions of PMC business structures, accountability and PMC relations with clients and states. Because both cases provoked a questioning of U.S. governmental control over PMCs and their staff, the selected case studies can be analyzed within the context of the primary research question.

The International Code of Conduct provides a further case study in understanding how PMC regulation and legitimacy may be transforming. Once again, Fabienne's framework of legitimacy provides an expedient definition and theoretical framework. Fabienne addresses legitimacy in the context of what he terms “[…] Political Cosmopolitanism”. Political Cosmopolitanism can be regarded as a form of international legitimacy. At a minimum, it is “[…] the view that national communities are not the exclusive source of political legitimacy in the global realm.” Indeed, it is possible to consider Political Cosmopolitanism as an antithesis to Wyatt-Walter's Global Hegemony. In other words, if globalization has led to or is resulting in the commodification of sensitive goods and services such as security, then there is a transformation of political actors on the international plane. States do not remain the dominant actors of such commodification. In turn, Fabienne argues, “[…] the main problem of legitimacy at the international level” becomes the rise of actors that may complicate, willingly or unwillingly, “[…] democratic accountability [to states]”. This complication thus births the need for global governance institutions. Such institutions, including Civil Society are not intended to supplant the authority of states but must act as “[…] [regulatory] coordination devices […] to solve problems that arise at the global level.”

Simultaneously, Fabienne discusses an inherent problem with a global governance approach. Although there may be “[…] widespread agreement that global institutions […] are necessary, there will be widespread disagreement about which particular institutions are necessary and what rules they should issue”. It is for this reason “[…] that new modes of governance must be created, with their own structures of accountability.” This latter observation creates an expedient role for the ICoC. The International Code of Conduct and the ICoC Association (ICoCA) stand as such a form of regulation, if not pure global governance. The ICoC, through the ICoCA, features its own accountability mechanisms, overseen by the pillars of Government, Industry and Civil Society. Utilizing Fabienne's Political Cosmopolitanism, it can thus be assumed that the ICoC unites these three pillars in a form of global self-regulation to govern the international PMC sector. It should thus be expected that state and PMC members acknowledge the legitimacy of the ICoC in their respective ‘selfrhetoric’ or public rhetoric. It should also be expected that any corporate codes of conduct from signatory firms reflect ICoC principles.

The available literature regarding PMCs is a recent trend, with much literature published shortly after the inception of the U.S. invasion of Iraq in 2003. The bulk of reading material addressing PMCs within a contemporary context appears to stem from journals on International Law and International Humanitarian Law.

An extensive review of existing literature has identified two experts on the private military industry. First, Peter W. Singer has been identified by this author as a security critic well-established within the academics of Privatized Security and Conflict studies. Singer's work has included the seminal non-fiction book, Corporate Warriors, described as a pioneering study of the PMC phenomenon. More significantly, Singer has written about the use of PMCs in Iraq extensively, an important criteria for this author's own work, which uses Iraq as a case study.

In addition to Peter W. Singer, the author of this thesis has identified one further consistently referenced critic within the field of Security Studies and Analysis. While Singer is an established, institutional academic, David Isenberg is known as a freelance security analyst, based in the U.S. political capital of Washington D.C. Isenberg's work may be seen as a complement to that of Singer. In addition to the publication of Singer's critique on PMCs in Iraq, 2004 also saw the release of Isenberg's own take on the matter. A Fistful of Contractors: The Case for a Pragmatic Assessment of Private Military Companies in Iraq was released by the British-American Security Information Council, a publishing house that attempts to offer an analysis of security sector issues with lesser emphasis on American viewpoints.406 Furthermore, while Singer's Corporate Warriors was revised in 2007 to refl ect the changing context of Iraq, Isenberg saw the release of his own extensive text on the PMC phenomenon in 2009. Shadow Force: Private Security Contractors in Iraq was the starting point of this author's own thesis research and provided detailed information on the various PMCs active in Iraq since 2003, an overview of U.S. legal initiatives to curb PMC activity (such as MEJA) and detailed information on the Abu Ghraib Scandal and how this scandal led to questions of (governmental) oversight mechanisms to enforce accountability of PMCs and their staff members. Finally, the book also covered the Nisour Square Massacre of 2007, albeit to a lesser degree than the Abu Ghraib Scandal.

THE ABU GHRAIB AND NISOUR SQUARE SCANDALS: LEGAL REACTIONS AND CRITICISM

The Abu Ghraib Prison Scandal broke in 2004. It involved the photographed and filmed abuse, humiliation and torture of prisoners at the hands of private interrogators and U.S. military personnel. Despite the international negative reaction that targeted and questioned the role of PMCs in Iraq, it is worth mentioning that PMCs were not at the center of the scandal. Indeed, much media attention was focused on the involvement of United States military officers at Abu Ghraib, along with members of other U.S. agencies, including the C.IA. However, the Abu Ghraib Scandal also saw the involvement of private contractors who, as with many PMC personnel, were specifically assigned to Abu Ghraib for non-military, civilian tasks.

The main private firms involved were CACI International, who supplied approximately thirty interrogators, and Titan Inc, whose nature of supplied services reveals a great degree of legal complexities. According to then-Secretary of Defense, Donald Rumsfeld, the total number of private contractors at Abu Ghraib during the scandal was around thirty-seven.

CACI (California Analysis Center Inc.) is a U.S. firm that has maintained close links with the American government for decades, with an emphasis on weapons contracts during the Cold War. With the reduction of governmental defense spending post-Cold War, CACI diversified into IT and tech support services, along with both open and classified intelligence gathering services. The firm's specialization in both open and closed intelligence gathering proved most profitable, landing the firm governmental contracts worth up to 300 million USD by 2004. However, the nature of such contracts is certainly of questionable legality, given CACI's status as a private and commercial IT solutions firm.

Privatized peace. Mercenaries. Dogs of War. These are some of the phrases popularly used to describe private military companies and their activities. Since the 2003 U.S. invasion of Iraq, there has been an increased focus on the existence and role of private military companies. Not only has Iraq been a concentrated effort for the U.S. government, but significantly, it has seen the largest commitment of the entire private military industry in over thirty years.3It is true that many firms in the industry engage in noncombat tasks, including logistics and administration services, weapons maintenance and security and military training.

However, it is also true that many such companies have gotten increasingly closer to the heart of armed conflict and military tasks. Most recently, such a shift in privatized duties has been brutally exemplified by two incidents in Iraq.

The 2004 Abu Ghraib Prison Scandal, in which two U.S. contractors were implicated, saw questions arise over the nature of accountability, the chain of command and which tasks were too inherently governmental to be outsourced. Just three years later, U.S. contractor Blackwater was implicated in the Nisour Square Massacre, in which seventeen Iraqi citizens were killed and up to eighteen wounded. The U.S. government responded with efforts that sought to increase oversight of hired contractors, citing fears of negative contractor behavior having the potential to undermine the perceived legitimacy of U.S. operations.

The potential for private military companies to erode the (client) state's monopoly over the regulation of force has therefore become of increasing contemporary concern. Since the 2003 invasion, there has been a surge in available literature covering the topic of PMC's. Such literature has oft en been published in journals of International Humanitarian Law and conflict resolution commonly addressing the legal status of PMCs and their staff members, tasks that may be outsourced, and critiquing the current (lack of) domestic and international regulation of PMC activity. Few studies, however, specifically attempt to address whether state use of private military companies can have the potential to erode state monopoly over the regulation of force. Furthermore, there is also a lack of literature that examines whether the use of PMCs can affect public perceptions of state legitimacy.

THEORETICAL APPROACH

Elke Krahman's approach to norm measurement will act as the primary theoretical background to the main case studies of this thesis, namely public or media perceptions of the Nisour Square Massacre and the Abu Ghraib Prison Scandal. Krahman's framework of norm change has been chosen due to the fact that it is the sole framework this author has identified to measure norm changes within the context of private security. For the secondary case study that will examine the ICoC and its influence on state-PMC relations, the regulatory framework of Nils Rosemann's Code of Conduct will serve as a theoretical backdrop. Rosemann's Proposed Elements of a Code of Conduct for Private Military and Security Companies predates the ICoC. Moreover, the parallels between Rosemann's Code of Conduct and the ICoC itself allow Rosemann's Code to act as an appropriate comparison and theoretical approach to self-regulation and norm change.

In addition to Krahman's framework of measuring norm change and the regulatory proposal of Rosemann, it is worth outlining additional theories that will influence this study as central or peripheral contributions. The first contribution to this study's theoretical background is the political framework of Realism. Specifically, the seminal Realist works of Max Weber and Thomas Hobbes have been central to outlining the rights of states to monopolize the regulation and use of force. Weber's published lecture, Politics as a Vocation argues that successful state survival requires that the state monopolize force. Similarly, Hobbes’ 17th Century work, Leviathan, argues that the state must retain the exclusive right to make war and to raise armies. Of interesting note is Weber's territorial definition of state monopoly over force, with Weber arguing that the definition of a post-(first) world war state is one that “[…] successfully […] create[s] a monopoly of legitimate physical force as a means of government within a particular territory.” The territorial aspect of Weber's definition can be re-explored by placing Weber's argument within the contemporary context of Globalization Theory, which, in summary, argues that the process of globalization has led to interconnected and interdependent politics. As a result, territorial statehood and the nation-state are being eroded as, inter alia, security risks transcend once clearly delineated borders.

This thesis has attempted to provide relevant background information on the contemporary history of PMCs, focusing on case studies in Iraq that have provoked questions of PMC legitimacy and legality. In addition, the Iraqi context of PMCs has been complemented by an analytical overview of recent regulatory attempts such as the Montreux Document and its implementation in Host and Territorial States. Such focus on the Document has provided an appropriate framework for Fabienne's explication of legitimacy, which itself has fostered further discussion of the role the ICoC may have in managing PMCs as a global regulatory phenomenon.

Legitimacy as a state-bound concept has been explored through the primary research question: Is the outsourcing of conflict and inherently governmental tasks to PMCs eroding state monopoly over the regulation of force and, subsequently, public perceptions of state authority and/or legitimacy? This question was framed and explored in a three-point outline. First, the research question was placed in the context of traditional and political definitions of state obligations to its subjects and how violence or force can be distinguished and appropriate to territorial understandings of state sovereignty. Second, the nature of legitimacy was explored and defined under Fabienne's discussions of political legitimacy. This discussion complemented theoretical references to both Globalization and Andrew Wyatt-Walter's theory of Hegemonic Stability by addressing the contention between state-bound governance and the notion of global governance or International Legitimacy. Third, Fabienne's criteria for legitimacy filtered two case studies of public discourse related to the 2007 Nisour Square Massacre and the 2004 Abu Ghraib Prison Scandal, respectively. Subsequent analysis of public discourse and so-called ‘selfdiscourse’ from corporate actors involved in each case study has examined to what extent such discourse has employed words such as ‘force’ and other words and phrases that may imply an aggressive, belligerent or militant context.

In addition, analysis has taken into account the protective image of security services that Blackwater/Academi originally presented through its own ‘self-discourse’, and how this image has changed into one of more aggressive commercialism.

THE STATE INSTRUMENT: DISTINGUISHING BETWEEN FORCE AND VIOLENCE

When considering the research question of this thesis, it may be appropriate to briefly examine whether such a state monopoly should distinguish between the control and use of force and the control and use of violence. While certain critics claim that the differences in definition are moot and philosophical at best, there are others who argue that the central difference is significant because of the method of exerting force or violence, with the term ‘force’ implying the use of violence that is not only (centrally) controlled but institutionalized and thus bestowed with a degree of legitimacy that pure violence lacks. Indeed, the word ‘force’ is one that not only permits violence within legitimate boundaries, but is also a word more strongly linked to state sovereignty than ‘violence’. Hence, the clearest distinction between violence and force is one of legitimate limits. If the state, or any of its authorized agents, were to violate such boundaries through the use of excessive force, then the state's actions within this context lose legitimacy and force is transformed into violence.

Given the importance of legitimacy to the research question and its importance to the public perception of state legitimacy and the legitimacy of a state's agents, including hired PMCs, the aforementioned distinction between force and violence will be taken into account. Hence, discourse analysis of the primary case study will consider whether public discourse and PMC ‘self-discourse’ employ the use of the word ‘force’ over that of ‘violence’, and if the context of each discourse reveals a correlation between legitimacy and use of either ‘force’ or ‘violence’.

FORCE: A STATE MONOPOLY? HOBBES’ AND WEBER's DEFINITIONS OF STATE FORCE

As Realism is a central, traditional theory of International Relations and statecraft, it is worth considering how seminal Realist thought has classified state privileges with regards to the use of force. Both Hobbes and Weber define the relation between force and the state in ways that are analogous yet different. In Hobbes’ Leviathan, the state exists to provide peace to and common defense of its subjects. To that end, the state (called sovereignty by Hobbes) possesses sole right to wage war with others.

The role of the U.N.'s Guiding Principles on Business and Human Rights is an important framework in uniting governmental and corporate approaches to human rights. Of note is the potential reach of the energy sector regarding human rights, as many firms from this industry may operate in sensitive environments. There is thus a need for a human rights corporate framework that recognizes challenges and opportunities specific to the extractive industry. This need was met in 2011 by the European Commission's Oil and Gas Sector Guide on Implementing the UN Guiding Principles on Business and Human Rights.

The Oil and Gas Sector Guide describes itself as the European Commission's answer to “[…] sector-specific guidance on the corporate responsibility to respect human rights, as set out in the UN Guiding Principles on Business and Human Rights.” Reflecting parallel origins to the ICoC, this document was developed through “[…] multi-stakeholder consultation” that involved “[…] business, government, trade unions and civil society representatives”, with peripheral input from academics and “[…] members of the Oil and Gas Sector Advisory Group”. Such development allows the Oil and Gas Sector Guide to serve not only the energy sector but a wider scope of “[…] employment and recruitment agencies [and] information and communications technologies (“ICT”) companies”.

Objective and Scope of the Guide

A perusal of the Guide reveals a central aim of applying “[…] the UN Guiding Principles on Business and Human Rights to the specific context of the oil and gas (“O&G”) sector.” As with the Montreux Document, the Oil and Gas Sector Guide is not intended to serve as a binding, structured instrument of corporate human rights protection. Rather, it serves to offer “[…] a range of ideas and examples for how to put [the U.N. Guiding Principles] into practice” without providing a structured management system for corporate use. As with the U.N. Guiding Principles themselves, the Oil and Gas Sector Guide is rooted in the three pillars of the U.N.'s Protect, Respect and Remedy framework. Hence, human rights duties of the energy sector are spread across “[…] [the] state duty to protect against human rights abuses by third parties [;] […] [the] corporate responsibility to respect human rights [and] […] [the] need for greater access to effective remedy for victims of business-related human rights abuses, through both judicial and non-judicial means.”

The author's study will explore prospective norm changes in how PMCs are publicly perceived in relation to (client) states. The purpose of this analysis is to test the research question and thus explore to what extent state monopoly of regulated force may be eroded by PMCs. An analysis of public discourse regarding relations between specific (client) states and PMCs will reveal to what extent the general public perceives PMCs as state-bound, corporate entities and to what degree states are considered to exercise control over PMCs. In addition, public discourse regarding the host states of PMCs (oft en states classified as conflict or post-conflict environments) and their interaction with such PMCs may be considered.

To explore the research question thoroughly, this author will base discourse analysis on Elke Krahman's own methodology of measuring norm change in his report mentioned in Chapter 3.1. Hence, public discourse will be analyzed within a two-tier framework. First, the author will analyze discourse by a PMC itself to understand how PMCs themselves wish to be constructed. Second, public discourse will be perused to explore the existence and use of PMCs as a norm. Such analysis will compare how PMCs wish to construct themselves with how PMCs are publicly perceived, while examining to what extent a norm of PMC existence and use has been publicly accepted, by analyzing to what extent such discourse constructs PMCs as entities independent of the state. The latter consideration will further explore whether public discourse constructs and accepts PMCs as not only independent of the state but outside of state control, in order to address the research question of whether or not PMCs may erode state monopoly on regulated force.PMC ‘self-discourse’ will be compared to public discourse by, inter alia, attempting to identify common phrases or words found in both PMC ‘self-discourse’ and public discourse on PMCs. This form of analysis will further explore the status of PMCs as commercial security providers under state control or as independent mercenaries.

INTRODUCTION

Ever since the inception of the EU, respect for democracy, the rule of law and human rights has constituted a corner stone of the European integration project. Indeed, the founding EU member states contemplated political and economic cooperation based on their mutual respect for the principle of liberal democracy. The importance of liberal democracy can clearly be seen in the early case law of the CJEU, such as the seminal judgment Internationale Handelsgesellschaft proves. With the entry into force of the Treaty of Lisbon, respect for democracy and the rule of law gained a newly elevated position within the Union's legal framework. In particular, the introduction of Article 2 TEU reaffirms the EU's commitment towards its foundational values, by stating that, inter alia, it is founded on the values of democracy, human rights and the rule of law and that these constitute a common heritage of the member states. Article 49 TEU finally also stipulates that “any European state which respects the values referred to in Article 2” can join the EU, and in so doing renders democratic governance and respect for human rights a sine qua non condition and a minimum common denominator for the member states.

However, despite the EU's renewed commitment towards its foundational values, in recent years, more and more worrying undemocratic and even authoritarian tendencies have been noticed within the European member states. While 2014 marked the 10-year anniversary of the Eastern enlargement, there is little reason to celebrate as democracy is struggling in several countries that joined the EU during the last decade. Ruling leaders have tried to centralize their executive power and undermine the rule of law by breaking the constraints of the checks and balances, thereby affecting the quality and stability of the democratic regimes. Amongst them, Hungary has led the trend. Since the 2010 election of Viktor Orban and his right wing conservative party Fidesz, Hungary has been backsliding to authoritarianism. The two thirds majority in the Hungarian parliament has empowered Fidesz to adopt legislation without the need for political compromise. Various amendments to the constitution have curbed Hungary's achievements of liberal democracy. This is evident by the fact that – just to name a few – the freedom of religion, the freedom of the media, and the powers of the judiciary and the Central Bank have been restricted.

Hungary is nonetheless not the only country backsliding to authoritarianism.

INTRODUCTION

The Court of Justice of the European Union (CJEU) issued two landmark decisions in April and May 2014, effectively applying Article 7 – the right to private life and Article 8 – the right to personal data protection, provided for in the Charter of Fundamental Rights of the European Union (the Charter), in order to protect the fundamental rights of the person in two different dimensions of the Surveillance Society. The first dimension opposes the individual and the state; the second one opposes the individual and private bodies. By doing so, the Court established itself as a prominent actor in the protection of fundamental rights in the digital age, not only in the EU, but also on the global stage.

In the first decision, Digital Rights Ireland,2 the Court annulled Directive 2006/24/EC3 – the “Data Retention Directive”, in its entirety, arguing that its provisions run counter to both Article 7 and Article 8 of the Charter. The Data Retention Directive enshrined an obligation for telecom service providers to retain traffic data of all their clients for a period of minimum 6 months and maximum 2 years, depending on the national laws transposing the directive. While the Court found that this operation does not touch on the essence of the right to private life and the right to personal data protection, and it genuinely satisfies an objective of general interest (fi ght against serious crime), it is not proportionate to the purposes it pursues. Among other things, the Court observed that the directive “entails an interference with the fundamental rights of practically the entire European population” and took into account the “general absence of limits” from its provisions.

In the second decision, Google v. Spain, the Court interpreted the provisions of Directive 95/46/EC – the “Data Protection Directive”, and Article 8 of the Charter in the sense that EU data protection law is applicable ratione personae to United States-based company Google Inc., due to the “inextricably link” with its subsidiary Google Spain, and to the fact that it meets the criteria to be considered a “data controller”.