The Canadian Army Journal

Domestic regulation in the US has two components. There is a licensing system
through which potential PMC contracts get reviewed. This licensing system only applies
to those American firms doing business with the US Government. There is also
legislation that deals with the prosecution of contractors for crimes committed while
serving abroad. Interestingly, the US uses the same legislation that governs the sale of
military arms and services in terms of third parties abroad to regulate MPFs. This
legislation is entitled the International Traffic in Arms Regulations (ITAR), which is a
subset of the Arms Export Control Act (AECA). The ITAR was modified to deal with
MPFs, specifically “the sale of ‘defence services’ or the sale of assistance, technical data
or training related to military units.” 54 This legislation is administered through the
Department of State. The legislation is the Military Extraterritorial Jurisdiction Act
(MEJA), established in 2000. The act was not created to deal specifically with
contractors, but with all civilians working with or for the US military in situations where
the host nation was unable or unwilling to prosecute these people for crimes. However,
the legislation was applied to contractors as the US generally negotiated immunity to
local prosecution on behalf of Department of Defense for civilians in Status of Forces
Agreements (SOFA) with host nations.
There are several problems associated with this legislation. The first is that it
originally only applied to contractors employed or working for the Department of
Defense. This was later modified but some important US federal organizations are still
excluded. It also took several years after the introduction of the legislation to establish
implementing rules which would provide uniform guidance across all the US armed
services as to who could arrest and detain civilian contractors. Next, the MEJA only
applied to crimes that would garner one or more years of imprisonment, potentially
resulting in contractors being excluded from discipline for misdemeanours, leading to the
situation where military personnel are held accountable for misdemeanour offences, but
not their civilian counterparts. Finally, prosecutors find that bringing extraterritorial cases
to court is complex and expensive, which had lead to a dearth of such cases actually
being pursued. 55 In summary, the US has some advanced domestic legislation related
to the control of contractors on operations. It has leveraged and adapted existing
Canadian Army Journal Vol. 11.1 Spring 2008
Combat Camera LF2008-0317d
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