Private Military Contractors – Mercenaries Outside the Scope of Law?
A. Drivers for the Use of Private Military Contractors
Private military contractors do not deploy themselves. They are called in and employed by other actors. These have, primarily, been governments, but also other actors, including non-governmental parties to non-international conflicts and international organizations.4 Even though commentators increasingly question the role of the state not only in international relations generally but in particular in international security, largely referring to the notion of privatisation of international security5, states have been and continue to be the primary entities who rely upon private military contractors. Rather than focusing on the sheer number of private military contractors deployed and rather than reconstructing the whole of international relations and international law6, it seems to be more plausible first to look into the reasons for states making use of private military contractors. In this context it is very important to note that private military contractors have replaced parts of the armed forces and of other civil servants; this means that contractors do not normally act on their own initiative but are agents of governments (or other actors). States (or other traditional actors) have remained and continue to be
3 On the debate concerning facts and regulatory prospects see E. Cusumano (2011), 11.
4 See, among others, C. Spearin (2011), 196.
5 Among others, D. Avant (2006), 327.
6 See L. Groth (2012), 29, 33–35.
the principals, making use of private contractors as their agents.7 The main question in order to understand the increased use of private military contractors today is why states no longer exclusively rely upon their military and police forces in providing internal and external security but have outsourced parts of the implementation of their security-related foreign policy.
I. Effectiveness or Efficiency?
A first aspect to be taken up in trying to answer this question is the relationship between governments and military/police forces on the one hand and between governments and private contractors on the other hand. Military and police forces are state organs. They form part of the executive branch of governments. With the inherent hierarchy in such forms of traditional governance, political decisions can be implemented in a straightforward way, i.e., in the absence of transaction costs it is plausible and likely that such implementation will be effective. However, while command and control structures in foreign and security policy promise a high degree of effectiveness, they entail overall the responsibility of governments: not only are governments in charge of personnel, equipment and budget, the actions of their military and police forces are directly attributable to governments, i.e., governments will be easily held responsible for any misconduct that may occur.
Moving from police and military forces to private contractors may at first sight reduce the potential for effective foreign and security policy action since such private contractors are not subject to direct orders of the government but only to the terms of the contract entered into with the government. Within the framework of such contracts private military companies enjoy a degree of, at least organisational, autonomy. Such organisational autonomy may contribute to increased efficiency; it reduces governmental responsibility for personnel, equipment and budget, and it will also limit state responsibility for misconduct, which may occur. In essence, the move from military and police forces to private military contractors is a move from command and control strategies to more indirect, largely incentive-based approaches in the implementation of foreign and security policy.8 The legal rules applicable to civil servants on the one hand and to contractors on the other, nationally and internationally, are different, and a lot of the debate about private military contractors has, from a legal perspective, focused upon questions related to what are the applicable rules.
7 For further ideas on the application of the principal-agent concept to private military contractors see J. Cockayne, (2007), 196.
8 But see M. Frulli (2010), 435.
II. An Ideological Turn
Looking into the motives for governments to move from the use of military and police forces to the use of private military contractors, one of the original and in the early days perhaps dominating factors was the ideological turn linked to the end of the Cold War.9 These changes did not come along as a total surprise, since a lot of these tendencies had already developed in the West in the 1980s. Rather than relying exclusively upon the government to provide a number of public services, political decision-makers were increasingly convinced or at least hoped that the marketplace might similarly or better meet public needs.10 This move from government action to the marketplace led to the outsourcing of a number of public services and to deregulation, and it contributed to the development of new industries.
Governments, on the other hand, got rid of the number of responsibilities, setting off part of the public service workforce and making them available to these new industries. Many governments hoped that this would lead to less public expenditure, to efficiency gains, and to economic growth. This overall political environment, which has often been labelled as neoliberal, also affected the conduct of foreign relations and security policy. With the end of the Cold War, there was a lot of talk about a peace dividend11, and governments came under pressure to reduce their military. Indeed, a number of armed forces were dramatically reduced in size, setting off a number of highly qualified staff members.
III. Flexibility in Addressing a New Security Environment With the changes in the global security environment12, military involvement of governments outside their own countries changed. New threat perceptions, linked to organised crime, piracy, and terrorism, provided an incentive for governments to increasingly move from open military involvement to covert action, which could not be easily attributed to a particular state or government. Moreover, private contractors seemed to be more flexible for ad hoc deployment, and perhaps even better trained for a broad variety of military and police activities.13 Whether or not the question of lower or less strict standards and escaping direct responsibility was also the matter to employ private military contractors instead of armed forces is debatable but hardly to be proven. Another factor that may play a certain role is the
9 See W. P. Nagan and C. Hammer (2008), 429.
10 See Groth (Fn. 6), 37–38 and 50–51.
11 C. W. Kegley and M. G. Hermann (1997), 339.
12 Cf. C. Kennedy-Pipe (2000a), 1, and C. Kennedy-Pipe (2000b), 9.
13 See Groth (Fn. 6), 37.
readiness to take certain risks, which may be higher in the case of private contractors than in the case of police and armed forces, in particular in light of the fact that democracies our increasingly faced with problems if they get involved in armed conflicts if this at the same time means that the population has to pay a prize in terms of lives of soldiers. Public perception may be very different if a soldier gets killed compared to a private military contractors getting killed.14
IV. Some Figures
Now coming to numerical data, figures do not necessarily provide explanations for developments, but they can be highly illustrative. In 2008, the size of the private military and security services industry was valued at more than $ 200 billion annually.15 In March 2010, there were 150,000 troops – but 200,000 private contractors – involved in the conflicts in Afghanistan and Iraq.16 The Chairperson of the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination, in a presentation at the Human Rights Council in September 2010, pointed out that “Group4Securior”, an internationally recognized provider of military and security services, has become the second largest employer world-wide.17 Thus, in terms of the personnel involved and compared to traditional armed forces, private military contractors have become sizeable and cannot be ignored. Whether, however, it is appropriate to talk about “an explosive growth in the privatization of international, and domestic, security forces”18, may be debatable.