A/HRC/21/43 Forces abroad. It provides for the prosecution of crimes committed abroad that, if committed in the United States, would be considered felonies punishable by at least one year in prison. 40. The Act originally allowed for the prosecution only of contractors “employed by or accompanying the Armed Forces”, which appeared to restrict prosecution to Department of Defense contractors. The legislation was amended in 2004 to extend to contractors with any federal agency “to the extent such employment relates to supporting the mission of the Department of Defense overseas”. 41. In 2007, the United States established military jurisdiction over some contractors operating abroad. The John Warner National Defense Authorization Act for Fiscal Year 2007 amended the Uniform Code of Military Justice, which regulates the national armed forces. The amendment extended military jurisdiction over civilians “in time of declared war or a contingency operation” to “persons serving with or accompanying an armed force in the field”. The main change is the addition of contingency operations as situations in which such jurisdiction may be exercised. The Act defines the term “contingency operation” to include “a military operation that is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force”. 42. Although the amendment seeks to extend military jurisdiction over civilian contractors, trial of civilians by court martial has previously been declared unconstitutional 11 in several United States Supreme Court cases. It therefore remains to be seen whether military courts martial will prove an effective, constitutional method of ensuring 12 accountability for private military and security company employees. 43. The national defence authorization acts for the fiscal years 2008, 2009 and 2011 focus on the promulgation of regulations for the use of private military and security companies by United States Government agencies. These laws require various Government authorities to prescribe regulations on the selection, training, equipping and conduct of 13 private military and security company personnel in areas of combat operations, and to 14 15 meet tracking and reporting requirements. In addition, the Office of Management and Budget was required to review existing definitions of the term “inherently governmental function” for clarity, and to develop a single consistent definition that would ensure that only Government employees or members of the armed forces perform inherently governmental functions and other critical functions necessary for the mission success of a 16 federal agency. 11 12 13 14 15 16 Toth v. Quarles (1955), Reid v. Covert (1957). The first case specifically challenging the constitutionality of the authority of the Uniform Code of Military Justice over civilian contractors extended under the John Warner National Defense Authorization Act for Fiscal Year 2007, United States v. Ali, was heard by the Court of Appeals for the Armed Forces on 5 April 2012. United States, National Defense Authorization Act for Fiscal Year 2008. Ibid., sects. 861 and 862. Title VIII of the National Defense Authorization Act for Fiscal Year 2011 noted with concern slow progress and significant challenges in implementing these requirements. United States, Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, sect. 854. Ibid., sect. 321. In response to this provision, the Office of Federal Procurement Policy published policy letter 11-01 on 12 September 2011, available from www.gpo.gov/fdsys/pkg/FR-2011-0912/pdf/2011-23165.pdf. It establishes a new, single definition of “inherently governmental function” and provides specific examples including combat and security operations in certain situations connected with combat or potential combat. 11