Dealing with the Corporate Dogs of War

June 23, 2004
By J. Peter Pham

Since the March 31 killing and mutilation in Fallujah of the four contractors working for North Carolina-based Blackwater Security Consulting, setting the current round of conflict in Iraq’s volatile “Sunni triangle,” various justifications have been advanced for the brutal attack. One of the more interesting rationales was proffered by Sabah al-Mukhtar, an Iraqi lawyer who told an online discussion hosted by IslamOnline.net that the four “may [have been] civilians in normal life,” but were in fact “mercenaries who [were] contracted by the occupying power.” In response to a question posed by a British student named Sharif, al-Mukhtar argued that, as “mercenaries,” the four slain contractors “have no immunity in international law” and were “legitimate targets for resistance to the occupation.” Al-Mukhtar’s argument is compelling in that it contains a kernel of verisimilitude—one that points to a need for a radical updating of international law to conform with the realities of contemporary global security activities.

Historically, the modern international system has frowned upon the existence—much less the use—of mercenaries, viewing private military forces as a threat to the Weberian sovereign state’s monopoly on the legitimate means of force. There was certainly a basis for this hostility towards private armed forces. In Africa alone, one recalls the international mercenaries who helped precipitate the Congo crisis of 1964 by fighting for the secessionists in Katanga before aligning themselves with the regime of Moïse Tshombe, as well as those who fought in the Biafran War in Nigeria between 1967 and 1970. Mercenaries not only fought alongside secessionists, but were also hired to overthrow established governments as was the case in both 1970 and 1975, when French and German elements were used in abortive efforts to overthrow Guinea’s Marxist despot, Ahmed Sékou Touré. One particularly colorful post-colonial condottiere, the Frenchman Robert “Bob” Denard, was especially notorious for overthrowing the government of Comoros no fewer than three times: in 1975, when he overthrew President Ahmed Abdallah twenty-eight days after the island chain’s unilateral declaration of independence from France and helped install Ali Soilih; in 1978, when he overthrew Soilih and installed Abdallah; and in 1989, when he led another coup that resulted in Abdallah’s death and attempted, unsuccessfully, to seize control for himself. Given this record, it is not surprising that the member states of Organization of African Unity adopted a Convention for the Elimination of Mercenarism in 1977.

The International Convention obliged the signatories to “not recruit, use, finance or train mercenaries and shall prohibit such activities in accordance with the provisions of the present Convention” (Article V). While the Convention only entered into force in 2001—and then only for the twenty-two states (none of them major powers) that had ratified it—its adoption by the General Assembly nonetheless serves as an indicator of a certain bias in international law against the military activities of private parties, as counselor al-Muhktar argued in his justification for the targeting of the four contractors in Fallujah.  

On the other hand, there seems to be an increasing amount of state practice—itself the basis of a ius cogens argument of general acceptance—in favor of the activities of private military companies (PMCs). Between 1991 and 1995, for example, the government of Sierra Leone teetered on the verge of total collapse in the face of an onslaught by rebels of the Liberian-backed Revolutionary United Front who seized Sierra Leone’s rich diamond mines and carried out vicious campaign of terror that included the torching of homes and businesses and the hacking to death of hapless civilians or at least the chopping off of their hands and feet. After the debacles in Somalia, Rwanda, and the Balkans, the international community was reluctant to be drawn into what seemed to be another of those intractable conflicts. So the Sierra Leonean government turned to Executive Outcomes (EO), a South African PMC that employed veterans of demobilized apartheid-era elite military and intelligence units including the 32 Buffalo Battalion which waged counter-insurgency warfare in Angola and Namibia, the Koevoet Battalion which battled the South-West African People’s Organization (SWAPO) during the latter’s independence struggle in Namibia and the Civil Cooperation Bureau, which carried out covert assassinations of members of the African National Congress and other opposition groups.

Under the command of Brigadier Bert Sachs, EO’s troop strength in Sierra Leone, consisting mainly of soldiers of “Cape colored” origin serving under Afrikaner officers, averaged 160, topping off at 350 in early 1996, and declining to about eighty by the time the operation ended in January 1997. Within days of arriving in late May 1995, the South African mercenaries proved their worth as a force multiplier providing technical services, combat forces and training to the Sierra Leonean government. EO undertook an unrelenting nine-day campaign that drove the RUF from its field positions surrounding Freetown. By late December 1995, they recaptured the Sierra Rutile mines and, the following month, they destroyed a large RUF battle group in the Kangari Hills in northwestern Sierra Leone. The EO operatives also provided training and weapons for the local kamajor militia units, contributing to the eventual regularization of the previously loosely organized self-defense groups. The capture and sacking of the RUF’s headquarters and several other key bases in southern and eastern Sierra Leone in September and October 1996 finally forced the rebels to come to terms with the government, signing the Abidjan Peace Agreement in November 1996. David Shearer of the International Institute for Strategic Studies noted: “There is a clear link between the outcome of EO’s military operations and the RUF’s willingness to negotiate. Military successes against the RUF made elections possible.” Moreover, as P.W. Singer of the Brookings Institution commented in his recent study Corporate Warriors, "At a total cost of $35 million (significantly, just one-third of the government’s annual military budget), the fighting in Sierra Leone had ceased and over one million displaced persons returned to their homes. Suffering less than 20 total casualties, including those from accidents and illness, the private firm had succeeded in bringing stability to two endemically conflict-ridden states."

Since then, the role that PMCs play in international security has become even more significant, not only in providing armed support and peacekeeping services for weak states, but also an array of military services that even major powers have outsourced in the post-Cold War era. Analysts estimate that the PMC business is a $100 billion industry with several hundred companies operating in more than one hundred countries. In Iraq, for example, PMCs are a vital component in the U.S.-led coalition’s efforts, with some 20,000 workers engaged in “security” tasks according to a May 4 letter that Defense Secretary Donald H. Rumsfeld sent to the House Armed Services Committee (this number does not include the thousands of other contractors engaged in civilian reconstruction). Taken as an aggregate, the PMCs in Iraq constitute the second largest contingent in the coalition, handling everything from feeding soldiers to maintaining weapons systems for the U.S. military to providing security and training a new police force for the nascent Iraqi government.

Despite the widespread use of PMCs, they remain surprisingly outside of the conventional framework of international law. Such international norms that exist were written with the infamous “dogs of war” of the 1960s and 1970s, rather than the transnational corporations of today, in mind. The routine calls of the United Nations Special Rapporteur on Mercenaries, Peruvian jurist Enrique Bernales Ballesteros, for a total ban on private military services represent a surreal flight of denial in the face of the realities of state practice and international realities. In fact, demand for the services offered by PMCs is likely to increase as multinational corporations, non-governmental organizations and intergovernmental organizations—in addition to the occasional tottering government that cannot attract international intervention—will need security to continue functioning in conflict areas where effective security cannot be provided by weakened states.  It is time to consider new norms:

Defining the status of employees of PMCs. While Iraqi lawyer al-Mukhtar is correct that the Blackwater contractors were certainly not civilians covered by the protections of the Geneva Conventions, they also were certainly not sensu stricto “illegal combatants,” having come to the conflict zone at the instance of a sovereign state. Unfortunately, current international law does not provide for their ambiguous status: it recognizes only uniformed military personnel and civilians, anyone carrying out military functions without belonging to the armed forces of a state is outside the law. Arguably, their lack of uniform and presence in a battle zone could land employees of PMCs in the same controversial “unlawful combatant” category as the detainees at Guantanamo. Without this clarification, a PMC employee captured by a hostile state would be left bereft of the Geneva protections afforded to prisoners of war and could conceivably be tried and executed for war crimes as an illegal combatant.

Establishing the legal controlling authority for PMCs in war zones. Currently, PMCs fall through a lacuna in the law. While not belonging to the armed forces usually exempts PMC employees from military law and the jurisdiction of courts martial, domestic courts generally lack the jurisdiction to try alleged offenders for many of the crimes committed overseas. This was especially problematic in the Balkans where several PMC employees were accused of illegal conduct in Bosnia and Kosovo but never criminally prosecuted. In Iraq, under the Coalition Provisional Authority’s Order 17, signed by Ambassador L. Paul Bremer last June, exempted all coalition military and civilian personnel from the Iraqi legal process. While military personnel who committed crimes have been subject to military justice, the situation of contractors who commit the same crimes is less clear, as the treatment of the alleged abusers at Abu Ghraib has shown. And if the law is weak regarding individual defendants, it is altogether absent regarding the firms that employ them: the legislation of most countries currently ignores the very existence of PMCs (the U.S. requirement of licensing by the State Department’s Directorate of Defense Trade Control is relatively advanced compared to that of other countries). As a preliminary measure for U.S.-based PMCs, the Military Extraterritorial Jurisdiction Act that governs American military personnel could be expanded to cover American contractors and their employers where their presence abroad in a theater of war is predicated on their servicing the needs of Department of Defense. Otherwise, it could well be that the first Americans hailed before the International Criminal Court will be some of the Pentagon’s civilian contractors.

Regulating the use of PMCs. While consensus will not be easy, the international community needs to articulate clear criteria for the use of PMCs in combat situations by legitimate governments, such as the use of EO by the Sierra Leonean government to beat back the RUF insurgency or government of Papua New Guinea’s contracting of the British firm Sandline (which in turned subcontracted EO) to reassert its control over the Panguna copper mine on the secessionist island of Bougainville. After all, if other nations are not willing, individually or collectively, to contribute to peacekeeping operations in places judged non-strategic or otherwise unrewarding, why should a state not have the right to hire a force capable of carrying out the task? For other services commonly provided by PMCs—including military advice and training, arms supply and procurement, security and protective services and intelligence—national standards for performance and accountability would be sufficient provided that they were clearly delineated in contracts and other legal instruments, especially when coupled with market mechanisms.

Many will, of course, instinctively oppose what they see as the “legitimization” of private military companies, railing against them as “mercenaries.” The father of modern political science, Niccolò Machiavelli, was himself profoundly suspicious of mercenaries, noting in The Prince that “if one holds his state on the basis of mercenary arms, he will never be firm or secure; because they are disunited, ambitious, without discipline, unfaithful; gallant among friends, vile among enemies; no fear of God, no faith with men.” But if such be the nature of the beast, better to bind it with a leash than pretend that it does not exist.

Dr. J. Peter Pham,  former diplomat, is the author, most recently, of Liberia: Portrait of a Failed State (Reed Press).