Private Military and Security Companies or Mercenaries? Bringing Law Back Into the Discussion

In late May 2017, Erik Prince, former Navy SEAL and founder of the private security firm Blackwater, sparked an intense debate when he laid down his proposed plan to restructure the war in Afghanistan by increasing the reliance on private contractors. Critics of his plan feared unaccountable mercenaries reaping benefits of the long-going conflict. Proponents argued that private contractors would be a cheaper alternative and could deliver better results. Trump recently decided to focus on a troop increase instead of the private sector solution. While Prince’s plan will disappear in the archives of the White House – for now – the question of how to deal with private military and security companies remains.

The privatization of security is a complex issue. Some believe that it threatens the monopoly over the use of force and state sovereignty. But to understand this complex industry in general and Prince’s plan in particular, it is essential to question whether private contractors actually qualify as “mercenaries” and whether they are unaccountable, as many claim. It is time to bring the law back into the debate and stop throwing around buzzwords without understanding their legal basis.

There were two parts of Prince’s plan involving private contractors. On the one hand, there was his proposal to have about 5,000 private contractors work as trainers and mentors, embedded with the Afghan army. On the other hand, there were reports about a private air force of about 90 planes.

In the media outcry following Prince’s proposal the private contractors were predominantly labelled as mercenaries. Mercenaries are defined in Art. 47 of the Additional Protocol I (AP I) to the Geneva Conventions. The same definition is also relied on in Art. 1 of the UN Mercenary Convention. To be considered mercenaries, contractors would, among other actions, need to take direct part in hostilities, be motivated essentially by the desire for private gain and be neither a national of a party to the conflict nor a member of the armed forces of this party.

According to Prince’s plan, the contractors working as trainers and mentors should have been embedded with the Afghan military. It is complicated to envision how this would work in practice. The contractors could either enlist with the Afghan armed forces for the duration of the assignment (this was done before in Papua New Guinea) or be declared de facto members of the armed forces. A similar solution might have been sought for the members of the private air force.

In either case the contractors would not fall under the definition of mercenaries, even leaving aside the difficult questions of how to embed them into the Afghan military. Generally, private military and security contractors rarely fall under the narrow mercenary definition because of the definition’s focus on the intent of the contractors. The contractors’ scope of work is simply too broad and their motivations too diverse.

Even if they are not mercenaries under international law, many would still argue that the lack of accountability is the greatest concern. Yet, contractors by no means operate in a legal vacuum. On the state level, a government cannot escape its responsibility simply by hiring private contractors. In the scenario proposed by Prince, the contractors would likely be considered either de facto state organs or fall under the categories of “empowered by the law to exercise elements of governmental authority” or “conduct under the control of the state.” According to the Articles on State Responsibility, this would mean that the Afghan state would be responsible for the acts of the contractors embedded with its armed forces. Additionally, the U.S. government could be held accountable for the acts of the contractors, if it retained a significant level of control over their operations.

On an individual level, the contractors have to adhere to the relevant international as well as national regulation. They fall under the provisions of international criminal law and, depending on their country of nationality, might even be tried before the ICC if they commit crimes against humanity or war crimes. In the U.S., accountability can be established through the Uniform Code of Military Justice, the Military Extraterritorial Jurisdiction Act and the Alien Tort Statute. Moreover contractors can fall under regulation ranging from the Arms Export Control Act and the International Traffic in Arms Regulation to the Foreign Claims Act and the Federal Tort Claims Act. This is not to argue that a perfect accountability regime is in place. Especially failing or instable states will likely struggle to enforce their national regulation or prosecute the perpetrators. There are furthermore many grey areas particularly with regards to conflicting jurisdiction, the extraterritorial application of national law and the possibility to sue corporations for human rights violations. The U.S. Supreme Court might answer the latter question in Jesner v. Arab Bank, PLC. But despite these challenges, there are ways to hold the contractors accountable.

To answer questions about the future role of private contractors, we must allow ourselves to move beyond the binary good vs. evil categorization of actors in armed conflicts. Private contractors play an essential role in today’s complex environment. Whether they secure embassies, guard development workers or train local forces, they are a reality of today’s conflict zones. We don’t need to debate whether we want them involved; they already are in Afghanistan and everywhere else. It is thus crucial to get back to the essential questions. Does the use of private contractors conform to our societal values that functions previously deemed inherently governmental are passed on to the private sector? Is there a window for increased involvement of private contractors? If so, under what rules and how do we ensure their accountability? Beyond the black sheep identified in the SIGAR and SIGIR reports, private contractors have proven a useful and efficient addition to military engagement if they operate under properly negotiated rules of engagement and accountability regimes. An open discussion about the extent of or limit to their involvement in future military operations is thus needed.

President Trump has decided on the new Afghanistan strategy, but the debate is far from over. Proponents as well as opponents of the proposed plan are still making their case. The continuous reliance on private contractors is thereby out of question; it is the extent to which we rely on them that is still debated. What is clear and should be kept in mind is that even though private contractors play a large role and operate in a wide range of services, only few of them would legally qualify as mercenaries. Labelling them correctly would enable a more honest and less morally charged debate, even though it would make for less catchy headlines.

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6 thoughts on “Private Military and Security Companies or Mercenaries? Bringing Law Back Into the Discussion

  1. Thanks for that interesting post , the point is , that accountability , is not the sole issue here while dealing with benefits and flaws in such issue of private contractors and mercenaries . This is because , we must deal , at first place ,before all , with the societal perception needed for serving in armed forces or security forces . Typically , they can’t be educated for respecting human or social values .They care as mentioned , for private benefits solely almost , as such , dedication for public interest , is not considered as a substantial goal for them naturally . Being a public servant , means , that you always put the interest of the public , before yours .As such , This is simply , contradiction in terms . Private is beneficial sometimes ( for the public , and the state ) yet , when dealing with entrusting lives of persons in their hands , or , risking their own lives for public , we face in fact : Unthinkable situation .

    Beyond it : One may also risk , having a situation , where dirty jobs , would be easier delivered so , to third private parties , working more and more ” under the radar ” and having less and less moral inhibitions or restraints .

    P.S : There is no need necessarily to look for nationality , in order to be tried or be prosecuted in the ICC . There is also the UN referral ( article 13(b) to the Rome statute ) where a case of state , not party to the Rome statute , is referred to the ICC , by the Security council ( see the case of Libya and Sudan for example ) .

    Thanks

    • Thank you very much for your comments. You are absolutely right that accountability is not the only issue. The question of what functions can be outsourced is important to answer, especially given the benefits that come with privatization for governments (plausible deniability, less negative public backlash as military casualties are reduced etc.) might not encourage more transparent business practices.

      I would however not agree with the assumption that one cannot educate private contractors to respect human or social values. Most contractors are former members of the armed forces and as such also received training on laws of armed conflict. Moreover, some governments require private contractors to receive some form of human rights and international humanitarian law training – as does Switzerland for example. You are however right in that there is need for more comprehensive training in those areas, especially as the rules are different for contractors than they are for members of the armed forces (defensive vs. offensive action).

      And lastly, it is correct that nationality is not the only path to jurisdiction of the ICC. But while there is the option of a referral by the UN Security Council, this is not a likely scenario with regards to most acts involving private contractors as the home state of many of the corporations involved correlates with a member of the Security Council’s P5 which could block this referral. But it is certainly a path worth pursuing otherwise.

      • Thanks for your comment , you are right that private contractors , can be educated , yet , I believe that only theoretically . In functional terms , while facing dilemmas , and harsh priority or in decisions making , If they are driven by money and private benefits , it is very hard to see , how shall they sacrifice substantial personal goals , for abstract moral values . Finally , general experience , suggests clearly :

        Typically , Those who seek money and private benefits , wouldn’t stop almost at nothing . I mean , look at the subprime crisis , being too greedy , has led the whole world almost , to a severe economic crisis . In the army and war zones situations let alone , while one should risk his own life for abstract moral and humanitarian values .

        So , I really doubt it ( currently at least ) . So far , only the state , only public ethos , could yield such level of : integrity , absolute dedication and sacrifice . So far , this is human history and the lessons it has taught us . But , I wish otherwise of course …..

        Thanks

  2. Thanks for the fantastic article. This is an area I’ve not got round to covering in my own studies, but this feels like a good starting point. One area I’m particularly interested in is the interaction between PMCs and INGOs. Notoriously, the presence of INGOs makes them targets, with local power-brokers often benefiting from creating protection brackets. This further amplifies the problem and incites violence as a market is thus created through protection. I have mixed feelings about PMCs working in conflict with INGOs, but was wondering what your take was on it?

  3. Thanks for your inputs. The interaction between PMCs and INGOs is indeed very fascinating. There are several challenges which have to be taken into account. First, INGOs usually operate with tight budgets and have an incentive to spend as little as possible on security provision so they can spend more money on their actual projects. This does however come with the risk of hiring less reliable PMSCs to protect their workers and assets. Second, you are right in that this interaction might amplify the problem and incite violence. But when operating without protection the INGOs risks the security of their staff. INGOs have due diligence obligations towards their employees, which also have to be taken into account. However, they might be perceived as agents of foreign governments when they appear with armed protection, thus creating false impressions and negative perception with local populations. To sum up, this subject is really worth a more thorough study and I’ll be looking forward to reading your thoughts on this.

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