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

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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