The use of PMSCs in military conflicts is a phenomenon that, in spite of being current, is not new. Employees of PMSCs such as Sandline International, a British company that recently ceased its activities, and MPRI, an American corporation providing a variety of security- and military-related services, have been employed in various armed conflicts around the world with varying degrees of success. The large-scale use of these companies during and following the invasion of Iraq in 2003 has, however, focused the world’s attention on this controversial topic thus leading to the question whether war is being privatized.

The delegation or contracting out of what would appear to be “typical” or essential state tasks and activities (the use of force in times of war, the provision of security, and the custody and interrogation of prisoners of war and common prisoners) to private companies is already contentious. This approach becomes even more questionable when it appears that these companies, or their employees, are responsible for, or have been involved in, the violation of rules of international humanitarian law and human rights. To what extent is the state responsible for the conduct of employees of these companies? Are these companies legally accountable for these actions under international law? What are the remedies available to the victims of abuses perpetrated by these companies or their employees? This last question is of special importance due to the fact that the Iraqi judicial system is probably not yet in the position to function normally to provide an objective, impartial, quick, and efficient way of adjudicating disputes. Moreover, the United States has successfully negotiated and obtained immunity for its citizens, including private contractors, against criminal prosecution in Iraq for their activities in that country.

This article attempts to clarify these questions and provide an overview of the relevant applicable rules of international law. Following a general overview of the privatization of military and security services and tasks, this article will analyze whether the use of PMSCs is contrary to international law. It will then describe the presence of these companies in Iraq, including the alleged violations of international humanitarian law and human rights in Abu Ghraib prison. This will be followed by an attempt to examine the responsibility of the United States for violations committed by PMSC contractors. Finally, an analysis of the available remedies for the victims of these abuses will be provided in light of the international legal obligations of the United States.

This article, originally written for a French audience and published in French, attempts to explain the American law of church and state from the ground up, assuming no background information of any kind. That turned out to be a useful exercise; explaining the underlying assumptions we generally take for granted revealed insights and connections previously overlooked. I hope English-speaking readers will also find it useful.

Except for rewriting the introduction and updating the treatment of the most recent developments, I have changed very little from the version I submitted to the French translators. I retain the comparisons of what I know in depth on the American side to what I think I understand superficially on the French side. I am pleased to report that my cautious observations on French law in this article passed through the hands of French editors without provoking argument or corrections. But no reader should make the mistake of thinking me an expert on the French system.

It is revealing to compare how two modern democratic societies, each proclaiming its commitment to liberty and equality, have come to fundamentally different resolutions of these issues on nearly every point. France and the United States share a commitment to religious liberty. But different histories and different distributions of religious opinion have led to different understandings of what religious liberty means in practice.

The one-word label for the French system is laïcité; American scholars were invited to Paris to explain the American conception of laïcité. But I am not sure there is a relevant American conception of laïcité. To fully understand laïcité, I suspect that one must be immersed in French law and French social and political practice. In French-English dictionaries, laïcité is often omitted; when it appears, it is commonly translated as “secularism.” This is probably a simplification, but let us accept it as a starting point. Many Americans would say that the United States has a secular government, or that it aspires to have a secular government. A minority of Americans would like to see a wholly secular society. But no one in the United States would use a word like “secularism” to summarize the American understanding of church-state relations.

There is no widely accepted single word to summarize the American system. Several such words have been suggested, but none of them is universally accepted. Probably the nearest equivalent in American usage is “separation of church and state,” often shortened to “separation.” This is a troublesome phrase even before translation; Americans dispute its meaning, and even dispute whether it describes one of our governing principles. But separation of church and state is probably the most common phrase for summarizing American church-state relations; again, let us accept it as a starting point.

Separation of church and state requires that government be separated from religion, and thus that government itself be secular. Separation means that government is not to sponsor religion, and also, although this point gets less emphasis in the rhetoric of separation, government is not to interfere with religion. Many religious believers support separation in part because they believe that religion will flourish best without government sponsorship, and that all sponsorship is a form of interference. So separation need not lead to secularism in civil society. To the contrary, many Americans believe that separation is one important reason why religious faith persists in the United States to a far greater extent than in most other industrialized democracies. Separation does not imply that religion is best kept out of public view, or even that private religious expression should be kept out of government institutions. I do not know the French system well enough to be sure, but I think that any correspondence between separation and laïcité is very inexact.

Other attempts to summarize the American system are that religion must be voluntary, and that government must be neutral as between religions and as between religion and religious disbelief. Each of these principles has applications that are highly controversial in the United States. Americans dispute the meaning of neutrality just as they dispute the meaning of separation. And of course, all such explanations are mere paraphrases of the operative language of the numerous constitutional and statutory provisions protecting religious liberty.

There may be no simple explanations of our system to citizens familiar with the French system, and no clearly equivalent words or phrases in our two languages for the central concepts. My only course is to explain the American system as simply and clearly as I can, with emphasis on answers to specific practical questions. I will necessarily have to generalize in places and omit important variations.

Keep in mind that on many important issues of religious liberty, there are at least two sides in the United States, with intense and sustained political and legal conflict. Our adversarial legal system, and our active system of judicial review of the constitutional validity of government practices, often enable the opposing sides in political and even religious arguments to translate their claims into legal arguments. At different times in American history, very different understandings of religious liberty have prevailed. The American conception of church-state relations is disputed, and it changes over time.

What kinds of criticisms were once leveled at private police by public officials? How did one attitude, deeply skeptical of private police, evolve into another that sees heavy reliance upon private policing as beneficial, or at least benign? Here, I take a fresh look at the dynamics of that change, and by doing so, restore to their proper place fundamental questions about the use of police who are privately financed and organized in a democratic society. These questions, and the violent history that midwived them, have been largely and undeservedly forgotten by the legal literature.

Using this historical perspective, I examine the shifting status of private policing: first, by examining the history of public criticism directed against them; second, by recounting the partnership model that first gained a foothold in studies sponsored by the federal government in the 1970s and 1980s; and third, by questioning the meaning and intentions behind the idea of partnership advanced today.

Two recent controversies highlight the French commitment to laïcité, which demands a strict separation of church and state. First, France has strongly resisted the inclusion of religious language in the proposed European Constitution. Second, it has banned students from wearing Islamic headscarves and other conspicuous religious apparel in public schools. These actions address the relationship between church and state in the context of expression and symbolism, that is, verbal or symbolic speech. Taken together, the actions suggest that the state should be secular in its expression and that religious expression should be confined to the private realm.

The French commitment to laïcité is matched by a similar commitment in the United States, but the American constitutional tradition in this context is nuanced and complex. Our understanding of separation, like that of France, goes well beyond the institutional separation of church and state. We are committed to the idea of secular as opposed to religious government, and our national Constitution is itself a secular document. At the same time, general references to God are commonplace in state constitutions and in other official pronouncements. It is an open question whether our tradition would sanction the contemporary adoption of religious constitutional language such as the religious language considered for the European Constitution. Depending on the wording, however, this type of religious language might be permissible in the United States. And there is little doubt about American constitutional principles in the context of student religious attire. A law like the one adopted in France would almost certainly be unconstitutional in the United States.

At first glance, the American approach to religious expression and symbolism might seem confused and inconsistent. Consider the following, additional examples. School-sponsored prayer is strictly banned from public schools, even during graduation ceremonies and at extracurricular events, and even when offered by students rather than teachers. But public schools are required to permit students and community groups to hold religious meetings after school on the same basis as nonreligious meetings. And even during the class day, public school teachers-at least for the time being-may lead students in reciting the Pledge of Allegiance to the American flag, complete with its reference to “one Nation under God.” By contrast, efforts to promote the religious content of the Ten Commandments by posting them in public schools and in other public buildings have been declared unconstitutional. Likewise, governmental holiday displays cannot endorse the religious aspect of Christmas. Yet no one doubts the constitutionality of our national motto, “In God We Trust,” which is prominently displayed on American coins and currency. And American presidents routinely declare days of prayer and offer religiously oriented Thanksgiving proclamations.

In this article, I will discuss the American approach to religious expression and symbolism, suggesting that the American approach is multifaceted but not incoherent. If the French conception of laïcité can be understood to require neutrality in the sense of governmental indifference to religion, the American approach calls for neutrality of a somewhat different character. The American conception of neutrality-sometimes called “benevolent neutrality”-generally demands that the government not favor religion over irreligion, but, as an apparent exception, it permits some governmental expression that seems to violate this principle. Perhaps more important, the American understanding of neutrality grants private religious expression strong protection under the First Amendment’s Free Speech Clause, including strong protection against discriminatory treatment, and this protection extends to expression in public schools and other public places. The United States and France thus share a similar commitment to the separation of church and state, but the American commitment is distinctive in significant ways.

In an attempt to explain the American approach, I will discuss three constitutional principles. First, the Establishment Clause of the First Amendment generally forbids governmental expression that has the purpose or effect of promoting or endorsing religion. Second, and conversely, private religious expression is broadly defined and is strongly protected by the Free Speech Clause. Third, as an implicit exception to the first principle, the government itself is sometimes permitted to engage in expression that seemingly does promote and endorse religion, but only when the governmental practice is noncoercive, nonsectarian, and highly traditional in a historical sense. In closing, I will suggest that the American departures from the French conception of laïcité should not be overstated, but neither should they be ignored. I will further suggest that the variations are not accidental, but rather are the product of historical, philosophical, and cultural differences.

Without commenting on the propriety or the effectiveness of utilizing the hotspot concept itself as a way to focus biodiversity conservation efforts, this Note examines several methods that nongovernmental organizations can use to assist in the protection of such hotspots. The first category of such methods includes direct funding efforts or the making of unencumbered contributions by nongovernmental organizations to other organizations in a position to affect preservation efforts in a particular hotspot. The second category includes all types of nongovernmental organization involvement in debt-for-nature swaps. The third category includes a broad array of opportunities for nongovernmental organization involvement in the international arena, including involvement with both public and private or semi-private international organizations. In an ever-more globalized and interconnected world, the actions of such organizations increasingly affect hotspot preservation. The effectiveness of each of these three categories of potential and current involvement will be analyzed and opportunities for future expansion of protection efforts will be presented.

A new, privately owned preserve in Tierra del Fuego provides an ideal forum for comprehensive implementation of Sanderson’s plan-and the WCS has discretion to manage the land accordingly. Ultimately, I predict successful conservation here, based on strategies previously advocated by its managing organization.