Accountability for Private Military and Security Contractors in the International Legal Regime

Abstract

The rapidly growing presence of private military and security contractors (PMSCs) in armed conflict and post-conflict situations in the last decade brought corresponding incidents of serious misconduct by PMSC personnel. The two most infamous events—one involving the firm formerly known as Blackwater and the other involving Titan and CACI—engendered scrutiny of available mechanisms for criminal and civil accountability of the individuals whose misconduct caused the harm. Along a parallel track, scholars and policymakers began examining the responsibility of states and international organizations for the harm that occurred. Both approaches have primarily focused on post-conduct accountability—of the individuals who caused the harm, of the state in which the harm occurred, or of the state or organization that hired the PMSC whose personnel caused the harm. Less attention, however, has been paid to the idea of pre-conduct accountability for PMSCs and their personnel. A broad understanding of “accountability for” PMSCs and their personnel encompasses not only responsibility for harm caused by conduct, but responsibility for hiring, hosting, and monitoring these entities, as well as responsibility to the victims of the harm. This article provides a comprehensive approach for analyzing the existing international legal regime, and whether and to what extent the legal regime provides “accountability for” PMSCs and their personnel. It does so by proposing a practical construct of three phases based on PMSC operations—Contracting, In-the-Field, and Post-Conduct—with which to assess the various bodies of international law.     

How the detection of insurance fraud succeeds and fails

Abstract

Insurance fraud is a serious and growing problem, and there is widespread recognition that traditional approaches to tackling fraud are inadequate. Studies of insurance fraud have typically focused upon identifying characteristics of fraudulent claims and claimants, and this focus is apparent in the current wave of forensic and data-mining technologies for fraud detection. An alternative approach is to understand and then optimize existing practices in the detection of fraud. We report an ethnographic study that explored the nature of motor insurance fraud-detection practices in two leading insurance companies. The results of the study suggest that an occupational focus on the practices of fraud detection can complement and enhance forensic and data-mining approaches to the detection of potentially fraudulent claims.     

Assessing the trends,scale and nature of economic cybercrimes: overview and Issues

Trends in police-recorded and (where they exist) household survey-measured cybercrimes for economic gain are reviewed in a range of developed countries – Australia, Canada, Germany, Hong Kong, the Netherlands, Sweden, the UK and the US - and their implications for criminal policy are considered. The datasets indicate a substantial rise in online fraud – though one that is lower than the rise in online shopping and other ‘routine activity’ indicators - but it is not obvious whether this is just displacement for the fall in household and automobile property crime, nor how much overlap there is between the offenders and past ‘offline’ offenders. Nor do the data indicate whether the frauds result from insiders or outsiders, or are collusive. The direct and indirect costs of cyberfrauds are examined, and it is concluded that there is no satisfactory basis for the larger estimates of cost, but it is undeniable that those costs are large enough to merit concern. There remains a problem of what metrics are appropriate for judging the threat and harm from cybercrimes, and their impact on national and human security. There is not a sharp division between these larger national security issues and cyber attacks on banks, businesses, and the spear phishing of individuals with important knowledge of system vulnerabilities in the public or the private sector. Rather there is a punctuated continuum in the interplay between private, corporate governmental and wider social risks.     

Shifting the paradigm of prison suicide prevention through enhanced multi-agency integration and cultural change

This study examines an unusually sustained reduction in suicide rates in a local London prison during the three year period 2008–2011. The likelihood of this reduction taking place by chance was <2:100,000, and its perceived success was such that the prison service recommended an evaluation of its characteristics. This study arose from that recommendation, and it used a retrospective case study multi-method approach (including factor identification, qualitative interviews and triangulation with official documentation) to identify factors which had been associated with the reduced suicide rates. The results endorsed a number of factors which have already been internationally identified as best practice, along with some local innovation factors. Two further pivotal factors emerged through analysis, and they are the key to service improvements. These factors – senior management support for cultural change and cross-professional collaborative working – indicate that positive leadership and multi-agency integration are vital ingredients.     

Healthcare fraud and quality of care: a patient-centered approach

This Article explores the intersection between quality of care and healthcare fraud by examining the extent to which quality-related fraud settlements benefit patients. The author argues that, although the protection of beneficiary health and welfare often is invoked by the federal government as one of the reasons for undertaking anti-fraud efforts, such considerations do not appear to play a large role in many of the settlements that are negotiated. While returning funds to the federal Treasury helps to ensure that the federal healthcare programs remain solvent and continue to serve beneficiaries in the aggregate, it may not adequately address harm to individual patients. Thus, the author concludes it may be time to explore new models of fraud settlements that can provide adequate compensation to the patients who may have suffered harm.     

Addressing identity crime in crime management information systems: Definitions,classification, and empirics

Identity fraud as a term and concept in its formative stages was often presumed to be identity theft and visa versa. However, identity theft is caused by the identities (or tokens) of individuals or organisations being stolen is an enabling precursor to identity fraud. The boundaries of identity fraud and identity theft are now better defined. The absence of specific identity crime legislation could be a cause of perpetrators not classified as breaching identity crimes but under other specific entrenched law such as benefit fraud, or credit card fraud. This metrics overlap can cause bias in crime management information systems. This study uses a multi-method approach where data was collected in both a quantitative and qualitative manner. These approaches are used as a lens for defining different classes of online identity crimes in a crime management (IS) security context. In doing so, we contribute to a deeper understanding of identity crime by specifically examining its hierarchical classes and definitions; to aid clearer structure in crime management IS. We seek to answer the questions: should current law around identity fraud continue to be reinforced and measures introduced to prevent identity crime; should laws be amended; or should new identity crime laws be constructed? We conclude and recommend a solution incorporating elements of all three.     

Using financial intelligence to target online fraud victimisation: applying a tertiary prevention perspective

Abstract

It is well established that policing in an online environment is fraught with challenges. To combat losses attributed to online fraud, Australia has seen the emergence of a victim-oriented approach, which uses financial intelligence to identify potential victims and deliberately intervenes through the sending of a letter. This approach predominantly targets victims of advance fee fraud and romance fraud who are sending money to West African countries. The current article presents three Australian case studies: Project Sunbird (West Australian Police and West Australian Department of Commerce); Operation Disrepair (South Australian Police); and the National Scams Disruption Project (Australian Competition and Consumer Commission). The article locates these cases within existing theory on crime prevention, using available data to document initial positive outcomes. Overall, this article supports the use of a victim-oriented tertiary approach to online fraud, and advocates its potential to reduce both repeat victimisation and the harm incurred through online fraud.     

Solicitation of information and recommendations for developing OIG compliance program guidance for the durable medical equipment industry--HHS. Notice

This Federal Register notice seeks the input and recommendations of interested parties into the OIG's development of a compliance program guidance for the durable medical equipment (DME) industry, its providers and suppliers. Many providers and provider organizations have expressed an interest in better protecting their operations from fraud and abuse. Previously, the OIG has developed compliance program guidances for hospitals, clinical laboratories and home health agencies. In order to provide clear and meaningful guidance to those segments of the health care industry involved in the supply and distribution of DME, we are soliciting comments, recommendations and other suggestions from concerned parties and organizations on how best to develop compliance program guidance and reduce fraud and abuse within the DME industry.     

Scambaiting on the Spectrum of Digilantism

Digilantism is punishment through online exposure of supposed wrongdoing. Paedophile hunting is one example, and the practice is open to many of the classical objections to vigilantism. But it lies on a spectrum that contains many other kinds of digilantism. Scambaiting is among the other kinds. It consists of attracting online approaches from perpetrators of different kinds of online advance-fee fraud. Characteristically, it takes the form of protracted email exchanges between scammers and scambaiters. These exchanges are mainly down-to-earth and occasionally testy conversations about the details of fictitious money transfers or involved explanations of delays in payment. They succeed in their purpose if they waste a lot of their targets’ time, but they can also be pursued as a sort of comic art form. Scambaiting exchanges seem often, but not always, to be relatively harmless. They therefore help to make intelligible a region of morally permissible digilantism on the spectrum of digilantism. Not that scambaiters never go too far, but their typical weapons inflict and risk inflicting far less harm than those of other digilantes, and there are actual scambaiting norms that have been chosen because of their relative harmlessness.     

Proportionality, Territorial Occupation, and Enabled Terrorism

Some collateral harms affecting enemy civilians during a war are agentially mediated – for example, the US-led invasion of Iraq in 2003 sparked an insurgency which killed thousands of Iraqi civilians. I call these ‘collaterally enabled harms.’ Intuitively, we ought to discount the weight that these harms receive in the ‘costs’ column of our ad bellum proportionality calculation. But I argue that an occupying military force with de facto political authority has a special obligation to provide minimal protection to the civilian population. As a result, when an occupying military force collaterally enables a harm affecting the civilian population, the weight that the harm ought to receive in the ad bellum proportionality calculation is unaffected by the fact that the harm is agentially mediated – it ought to be weighed at least as heavily as those harms that the occupying force collaterally commits directly. As a result, satisfying the ad bellum proportionality constraint in wars of territorial occupation is more difficult than it has been thought.     

诉讼欺诈行为定性之探析

诉讼欺诈行为具有严重的社会危害性,但目前我国现行刑法对于诉讼欺诈行为的处罚力度不够,在司法实践中对同一行为处理结果差别悬殊。这主要是由于我国立法上对于该行为没有统一明确的规定,刑法理论上对该行为的定性问题争论颇大所致。对于诉讼欺诈行为,不宜按诈骗罪定罪处罚。对于诉讼欺诈犯罪过程中所实施的触犯现行刑法的行为,应依法定罪处罚,对于刑法没有规定的部分应按无罪处理。我国刑法应单独设立“诉讼欺诈罪”。     

Insurance fraud in Taiwan: Reflections on regulatory effort and criminological complexity

The nature and prevalence of insurance fraud has been studied only to a limited extent, even in the USA and Europe. Nevertheless, national authorities have pressed ahead with various approaches to control such fraud. This paper briefly outlines the nature and difficulties around measurement of insurance fraud and reviews key international trends in the regulation of fraud. It then presents the findings of an empirical study of insurance fraud in Taiwan and recent proposals for anti-fraud control. It analyses these findings in the context of actual practices of insurance companies which give evidence to the idea that ‘moral hazard’ is embedded in the institutional arrangements, social relationships, and moral economies of private insurance.     

论司法会计理论与舞弊审计理论的分野——兼谈“法务会计”的误解

司法会计理论与舞弊审计理论分属不同学科。介绍中外将司法会计理论与舞弊审计理论的混同情况,探明中外形成＂混同理论＂的不同原因,并重点介绍了中国学界将司法会计理论与舞弊审计理论进行分野的研究成果,指出由于司法会计活动与舞弊审计活动性质不同的两类社会活动,两者理论的混同会导致社会实践的错误,最终会对中国的司法会计事业和审计事业带来危害。同时,揭示了＂法务会计＂理论出于国外＂混同理论＂的来源,分析了＂法务会计＂研究者对司法会计理论的误解。     

关于合同诈骗罪的数额标准评析

合同诈骗罪从普通诈骗罪中分离,其目的在于对利用合同实施诈骗的犯罪行为从重打击,其原因在于一般诈骗罪所侵犯的是公私财产所有权,而合同诈骗罪不仅侵犯了公司财产所有权,更侵犯了市场经济秩序和合同管理制度。然而,在两罪法定刑量刑幅度基本一致的情况下,司法解释和司法解释授权地方制定的合同诈骗罪"数额较大"、"数额巨大"的标准均高于一般诈骗罪的数额标准,导致司法实践中出现同一个合同诈骗行为依合同诈骗罪条款无罪或罪轻,依诈骗罪条款有罪或罪重的悖论。     

网络传销犯罪的司法认定逻辑及其修正

基于传销犯罪的诈骗本质以及网络传销所衍生的诸多形式,原有的组织、领导传销活动罪的界定已经无法适应惩治网络传销犯罪的需要,应当基于体系与实践的双重考量,对网络传销犯罪的立法和司法作出相应的调适。组织、领导传销活动罪与集资诈骗罪系交叉竞合关系,两者在量刑上应保持平衡。网络传销犯罪在法益侵害程度方面未必高于传统传销犯罪。司法解释性文件对于网络传销犯罪的认定不应囿于组织内部参与传销活动人员30人三级的标准。网络团队计酬不应当构成犯罪。对于混合型传销,则应当结合"骗取财物"的要件予以全面判断。对为网络传销犯罪提供网络服务的行为,应区分情况适用共同犯罪、非法利用信息网络罪与帮助信息网络犯罪活动罪。对网络传销犯罪作证据综合认定时,应优先客观性证据,确立互联网电子数据的中枢证明作用,修正逐一收集参与传销活动人员的言词证据规则。     

Forensic discovery auditing of digital evidence containers

Current digital forensics methods capture, preserve, and analyze digital evidence in general-purpose electronic containers (typically, plain files) with no dedicated support to help establish that the evidence has been properly handled. Auditing of a digital investigation, from identification and seizure of evidence through duplication and investigation is, essentially, ad hoc, recorded in separate log files or in an investigator's case notebook. Auditing performed in this fashion is bound to be incomplete, because different tools provide widely disparate amounts of auditing information – including none at all – and there is ample room for human error. The latter is a particularly pressing concern given the fast growth of the size of forensic targets.Recently, there has been a serious community effort to develop an open standard for specialized digital evidence containers (DECs). A DEC differs from a general purpose container in that, in addition to the actual evidence, it bundles arbitrary metadata associated with it, such as logs and notes, and provides the basic means to detect evidence-tampering through digital signatures. Current approaches consist of defining a container format and providing a specialized library that can be used to manipulate it. While a big step in the right direction, this approach has some non-trivial shortcomings – it requires the retooling of existing forensic software and, thereby, limits the number of tools available to the investigator. More importantly, however, it does not provide a complete solution since it only records snapshots of the state of the DEC without being able to provide a trusted log of all data operations actually performed on the evidence. Without a trusted log the question of whether a tool worked exactly as advertised cannot be answered with certainty, which opens the door to challenges (both legitimate and frivolous) of the results.In this paper, we propose a complementary mechanism, called the Forensic Discovery Auditing Module (FDAM), aimed at closing this loophole in the discovery process. FDAM can be thought of as a ‘clean-room’ environment for the manipulation of digital evidence, where evidence from containers is placed for controlled manipulation. It functions as an operating system component, which monitors and logs all access to the evidence and enforces policy restrictions. This allows the immediate, safe, and verifiable use of any tool deemed necessary by the examiner. In addition, the module can provide transparent support for multiple DEC formats, thereby greatly simplifying the adoption of open standards.     

Digital evidence: Unaddressed threats to fairness and the presumption of innocence

Contemporary criminal investigation assisted by computing technology imposes challenges to the right to a fair trial and the scientific validity of digital evidence. This paper identifies three categories of unaddressed threats to fairness and the presumption of innocence during investigations – (i) the inappropriate and inconsistent use of technology; (ii) old procedural guarantees, which are not adapted to contemporary digital evidence processes and services; (iii) and the lack of reliability testing in digital forensics practice. Further, the solutions that have been suggested to overcome these issues are critically reviewed to identify their shortcomings. Ultimately, the paper argues for the need of legislative intervention and enforcement of standards and validation procedures for digital evidence in order to protect innocent suspects and all parties in the criminal proceedings from the negative consequences of technology-assisted investigations.     

Case study: From embedded system analysis to embedded system based investigator tools

Since mid-2012, France and Germany have had to deal with a new form of payment card skimming. This fraud consists of adding a wireless embedded system into a point-of-sale payment terminal with the fraudulent goal of collecting payment card data and personal identification numbers (PIN).This case study details the strategy adopted to conduct the digital forensic examination of these skimmers. Advanced technologies and analyses were necessary to reveal the skimmed data and provide useful information to investigators for their cross-case analysis.To go further than a typical digital forensic examination, developments based on embedded systems were made to help investigators find compromised payment terminals and identify criminals.Finally, this case study provides possible reactive and proactive new roles for forensic experts in combating payment card fraud.