Private Military and Security Companies in the International Legal Void
Private military and security companies have often been characterized as modern mercenaries, an accusation that merits serious consideration, as mercenarism is illegal under international law. Although they have not been officially deemed unlawful, an examination of the relevant normative context reveals substantial inconsistency between the growing use of private military force and the existing legal framework. The issue of the status of these companies and their employees in the context of armed conflict or occupation is directly affected: Should they be there? Can they be legitimately targeted?
Private military and security companies: Mercenaries in suits and khakis?
A basic starting point of the debate over the privatization of military force has been the question of whether private military and security companies (PMSCs) and their personnel should be classified as mercenaries. The proponents of PMSCs argue that, on the basis of existing international law, these companies and their personnel cannot be legally equated to mercenaries, given their corporate structure, range of services and legitimate clients. On the other hand, the UN General Assembly has traditionally opposed the use of PMSCs in resolutions that have made clear reference to mercenaries. In the words of former Special Rapporteur on Mercenaries of UN’s Commission on Human Rights, Enrique Bernales Ballesteros:
The manner and the nature of the activity in which mercenaries participate may change, that does not change the mercenary status of those who take part in illicit acts, offering and selling their professional skills for pay, well knowing that it is not for a noble cause, but to kill and destroy outside any licit or ethically permissible context.[i]
His successor, Shaista Shameem, acknowledged that there might be a difference between mercenaries and PMSCs, yet expressed concern that states might be unconsciously conceding their control of force to private, profit-seeking actors.[ii]
The issue is highly ambiguous, hence requires closer examination. Article 1 of the International Convention against the Recruitment, Use, Financing, and Training of Mercenaries, one of the main texts of the international law on mercenaries, states:
1. A mercenary is any person who:
(a) Is specially recruited locally or abroad in order to fight in an armed conflict;
(b) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party;
© Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;
(d) Is not a member of the armed forces of a party to the conflict; and
(e) Has not been sent by a State which is not a party to the conflict on official duty as a member of its armed forces.[iii]
In the absence of a definitive legal verdict, we can approach at least the moral essence of the matter by focusing on the combination of criteria (b) and (d). The other three conditions seem of a secondary or minimal importance: (a) can be considered rather vague in the context of PMSCs, since it is not clear exactly what degree of military involvement is referred to; © alone is perhaps meaningless, since foreign volunteers, for example, have participated in many modern-era wars without being seen as mercenaries; and (e) obviously accounts for foreign state military personnel sent to a conflict as advisors to a party or as observers. However, the coincidence of the motive of a relatively substantial financial gain and the lack of incorporation into a state’s armed forces is crucial, since it essentially defines the mercenary, and distinguishes him from someone possibly joining his country’s military mainly out of financial subsistence concerns, or someone fighting for a higher, ethically acceptable cause without belonging to a recognised state’s armed forces.
PMSCs, whether they are hired for clearly active military missions or passive protection, are by definition driven by the prospect of private gain, and operate in a context of armed conflict without being organically incorporated into any regular defence force, i.e. they are not part of the military chain of command. In this respect, the contrast of their legitimate corporate status to the more individualistic conduct that comes in mind when thinking of a mercenary can be seen as presenting a distinction without a difference. Turning the focus on their personnel may make it even more apparent that all the moral concerns on which the resentment, denunciation and legal condemnation of mercenaries have been based can be raised for the use of PMSCs with equal validity. From this point of view, it would seem analytically distorting, for example, to think of a Colombian national working for an American PMSC in Afghanistan as anything other than a mercenary. This example is neither fictitious, nor rare. As of July 2013, 83% of the private military and security contractors working for the US Department of Defense in Iraq, and 10% in Afghanistan, are third-country nationals, i.e. neither US citizens, nor local nationals.[iv] The fact that a corporate business entity – equally profit-seeking – intermediates between the individual pecuniary motives of its employees and the perhaps more righteous cause of its client cannot really nullify the former’s mercenarism, given that in such cases actually the above convention’s five criteria are all met.