By P.W. Singer
“They shoot people, and someone else has to deal with the aftermath. It happens all over the place. These guys run loose in this country and do stupid stuff. There’s no authority over them, so you can’t come down on them hard when they escalate force.” So described Brigadier Horst, deputy commander of the US 3rd Infantry Division, of the challenge of private military companies. Horst’s unit was responsible for security in and around Baghdad. Between May and July of 2005, he tracked at least a dozen shootings of civilians by private military contractors.
When we think of war and who fights it, we imagine a world of men in uniform, warriors fighting for their country, motivated by the ideals of patriotism. The reality of warfare in the 21st century is far different. The wars of today are fought by men, women, and even children. They fight for organizations that range from terrorist groups to drug cartels and are motivated by causes that range from religion and ethnic grievance to the good old fashioned profit motive.
Within this witches brew of 21st century challenges to humanitarian law, one of the more notable, but least understood, developments has been the newly emerging global trade in hired military services, better known as the “privatized military industry.” In this new industry, firms are supplying not the goods of warfare, but the services of war, substituting many of the professional functions of the traditional state military.
Privatized military firms (or PMFs) are corporate bodies that specialize in selling military skills. First emerging in the 1990s, firms in the industry have done every task that militaries used to monopolize: conducting tactical combat operations, strategic planning, intelligence, operational and logistics support, troop training, technical assistance, etc. While soldiers for hire certainly have a lengthy historic pedigree, extending from the free companies of the Hundred Years War, the Condottieri of the 1500s, and the army of von Wallenstein in the Thirty Years War, to “Les Affreux,” of the 1960s Congo, PMFs take the trade into the 21st century. Organized as business entities and structured along traditional corporate lines (many even have public stock and boards of directors), they represent the corporate evolution of the mercenary trade.
These PMFs range from small consulting firms, comprised of retired generals, to immense transnational corporations that can do everything from provide hundreds of armed commandos to supply the logistics for entire military operations. These firms presently operate in over fifty countries, from rich states like Saudi Arabia to poor states like Sierra Leone. Even the US military, arguably the most powerful armed force in history, has become one of the prime clients of the industry. The US Defense Department entered into over 3,000 contracts with US-based firms in the period from 1994 to 2002, estimated at a contract value of more than $300 billion.
These numbers boomed in the Iraq War that started in 2003. With American forces over-extended by poor planning, by 2005, over 80 firms were operating in Iraq, employing more than 20,000 private, non-Iraqi personnel to carry out what would have been military functions in the past (tens of thousands of additional civilian contractors provided reconstruction and oil services). To put this into context, the private military industry has contributed more forces to Iraq than the rest of the US-led coalition combined (meaning President Bush actually assembled not a “coalition of the willing,” but really a “coalition of the billing”). With these greater numbers came greater costs. By November 2005, at least 280 contractors have been killed in Iraq and as many as 3,000 have been injured. Again, such numbers are more than the rest of the coalition combined and, indeed, more than any single US Army division.
The result is that private military firms have become indispensable to major and many minor military operations. But they have also brought new challenges. For example, some of the most controversial aspects of the Iraq war also involved PMFs. These included the allegations of war profiteering that encircled Vice President Dick Cheney’s old Halliburton firm, the brutal killing of Blackwater employees at Fallujah by Iraqi insurgents that was captured on TV and the widespread fighting –and lawsuits– that followed, and the role of CACI and Titan contractors working as military interrogators and translators at the Abu Ghraib prison. Outside of Iraq, private militaries have been involved in everything from a “rent a coup” scandal in Equatorial Guinea to allegations of civilian killings in Colombia.
As regards the law, it is important to distinguish between private contractors who are hired to take part directly in combat, and those who provide ancillary services short of actual war-fighting. Members of the first group have historically been called mercenaries (though in some cases they may not come within the technical definition of mercenaries in the first Additional Protocol of 1977). It is the second category – contract employees engaged in roles such as delivering military supplies, protecting diplomats or government officials, and interrogating prisoners – that has grown so dramatically in recent years. This is the way that contractors are used by the United States and its main allies, and the problem they raise is whether such actions are really “civilian” in nature.
These private military employees operate in the military domain, but they are not part of the military. In legal terms, they are civilians and do not have the right to take a direct part in hostilities. However the notion of “participating directly in hostilities” is notoriously hard to define, especially in the chaotic circumstances of modern conflict. In theory, civilians are entitled to use force in self-defense or to prevent crimes, but not to engage in offensive military actions or defend military objects. In practice, the distinction is not always easy to draw. And if contractors do take part in hostilities, the consequences for them can be serious: they become legitimate targets for attack, and at the same time cannot claim prisoner of war status if captured by the enemy.
But perhaps even more worrying is the problem of controlling and regulating private contractors’ actions in a war zone where normal peacetime codes of conduct are inapplicable. Contractors are not part of the military chain of command, may lack proper training or appropriate rules of engagement, and are not subject to military systems of accountability. They cannot be court-martialed by state militaries, though some states (including the United States) have passed laws giving domestic courts jurisdiction over crimes committed by military contractors overseas. There is little in the law todefine such basic questions as to who can work for private militaries, what rules they should operate under, and who private militaries can work for. To put it bluntly, a circus faces more regulation and inspection than a private military firm.
The confluence of military and business interests encompassed by the private military industry is a defining change in both warfare and politics. Privatization in the military space, as in all other realms, is not necessarily a terrible thing. It clearly carries both advantages and disadvantages. These must constantly be weighed and mitigated through effective policy and smart business sense. Still, there has to be a certain amount of discomfort at the corporatization of war. Even Dwight Eisenhower warnings of “military-industrial complex” back in the 1950s never imagined it would go so far.