The issue of private military companies, private security companies, or private military firms brings up the question of accountability. This question can be asked in different dimensions: moral, legal, ethical, and command and control. This is a brief draft on the legal accountability of private military forces, divorced from any profit motives. It is my belief that private military forces fall into the same "loophole" (really a misnomer, it is an intentional gap) in regulation in which non-governmental forces "approved" by the international community, namely Blue Helmets, are also found.
The growing use of private military forces has distinctly increased its and breadth since 9/11 with an estimated 20,000 private contractors operating in Iraq alone, more than double the United Kingdom’s 8,500. Often operating without direct military or civilian monitoring or control, questions about their accountability generally focus on their status as private business or "modern" mercenaries.
The responsibility of these “modern” mercenaries, better described as private military contractors, is the subject of a growing body of literature exploring private military forces as corporate business ventures. From this starting point, the topology of the literature includes, but is not limited to, examining the impact of private military companies on control and accountability of force or the impact on domestic formulation and execution of foreign policy, or exploring links between their use and money in politics. Almost exclusively, these explore the applicable law governing contracting, monitoring, and discipline of private military forces within the context of for-profit corporate entities anticipating a trajectory resulting in private mercantile companies or Machiavelli’s mercenaries that are “useless and dangerous…and without discipline”. These studies generally state the lack of liability is the result of out of date anti-mercenary laws or other specific legal mechanisms. The fact is private military forces and public military forces under the authority of a non-governmental organization (NGO) are both non-state forces with identical levels of accountability, or rather, lack accountability.
This paper intentionally avoids as unnecessary the for-profit motives of private military companies. The term “private military force” emphasizes the independent, arguably democratic, capability outside of the “public military force” of a sovereign state. This distinction between private and public military force is important to understanding the real questions of accountability.
The transformation in war has been followed by an evolution of peacekeeping operations and their composition. Before the Cold War, the UNO would deploy troops only after cease-fires, when the belligerent parties agreed to accept them. Now troops are sent inside borders of sovereign and failed states alike, into areas where there is no such consent for intervention and violence is still on-going. The keeping of the peace is now frequently preceded by enforcement actions, requiring greater and more frequent participation of states and the evolution of “complex peacekeeping” beyond simple separate or disarm and protect the conveys missions.
Rules of engagement required of “complex peacekeeping” typically result not from military rational but from political sensitivities, straining the political support of the major powers. The long standing practice of “subcontracting” to other states for multinational, instead of uni-national, peacekeeping forces (PKF). Used in Somalia and Rwanda, for example, this increases pressure on the command and control of peacekeeping forces as the major states are reluctant to cede authority over, or often even commit, their forces to multinational military interventions politely termed as “conflict resolution missions”.
The international community in general, or the Security Council specifically, may be clear in the desire to intervene, granting authority from international law and collective will, but mission specifics are often murky and unclear and subject to further politicking and lobbying. This is compounded by the unclear and indeterminate accountability of the subcontractors under international humanitarian law. Too often, the major powers “won't make a decision to intervene…or [delay] until it is too late”. It is not a stretch to say that PKFs composed of third-party states is “foreign policy by proxy,” performing tasks the “government [or collective governments], for…political sensitivities, cannot [or will not] carry out”.
The participation of the subcontractors is generally not enjoined with a direct political or national calling of the contracted state. PKF troops are not acting on their national identity, defending their state’s territory or interests, but social demands that shaped and created the interests or otherwise led their leaders to promise soldiers for political or financial reasons. These contractor states, wearing the Blue Helmet of the UN, generally have nothing more invested in the project than their relationship in the international community. Are Pakistan (13% of total military and civilian police manpower), Bangladesh (12%), India (7%), Ethiopia (5%), and Ghana (5%) more altruistic than others because they volunteered over forty percent of the total military and civilian police staffing of these complex missions? The prevalence of these troops in PKFs does not stem from a higher concern about global society but because their governments receive compensation for their participation. Remuneration received by the Blue Helmets blurs the distinction between private and public military forces, between corporate services and participation in the global economy or society. There is clear evidence from past peacekeeping operations that this arrangement of “contracting parties lack[s] verification and mandatory evaluation safeguards to deliver promised results”. Ironically, Kofi Annan at one time “bristled at the suggestion that the United Nations would ever consider working with ‘respectable’ mercenary organizations, arguing that there is no ‘distinction between respectable mercenaries and non-respectable mercenaries’” when in fact these “subcontractor” states function as hired organizations and enjoying the same accountability.
Peacekeeping of the international community derives its authority from international institutions, international organizations, and international law, but the application of this authority is diffused through the participating states. The application of International Humanitarian Law (IHL) to the Blue Helmets relies on self-enforcement by the contributing state. Automatic enforcement does not exist because of legitimacy questions of the International Criminal Court (ICC), possible bilateral agreements between contractor states and PKO target, such as Status of Forces agreements, or the existence of other inter-state agreements. Enforcement of IHL fails because the UN is not party to the Geneva Conventions, or other IHL instruments. These treaties explicitly permit only states to be parties, implying a limit to extending coverage to either insurgent, private, or international groups. Further, the nature of peacekeeping operations is such that UN forces are not and should be viewed as combat forces.
Application and enforcement of military law, codes of conduct, and adherence to IHL is based on and, in fact, requires the contractor contributing to the PKF to exercise their own authority over their own military force. Wearing the Blue Helmet does not extend any new legal regimes to PKF troops. For example, United States troops wearing the Blue Helmet are still, and only, subject to the Uniform Code of Military Justice (UCMJ) and other applicable American processes governing the Armed Forces. This reliance on the contracting state for juridical processes is paralleled by that governing private military force.
When war became national causes, and not just conflicts between kings, the purpose of war transformed into defending or advancing the interests of the state. This fostered codification of international law and multilateral control mechanisms, including IHL. The concept of nationalized citizenry acting outside the purpose of the state was diplomatically problematic. The growing international structure, increased state accountability, communications and commerce, and normative changes su
ch as neutrality laws made it difficult for states to claim their citizens were independent actors, causing states to enact laws to control the use of violence in the international system through constraining foreign military service, such as the first British Foreign Enlistment Act of 1819.
The accountability of states citizens has rested with the state since the rise of nation-states. Abrogation of this also rests with the state. The rise of state and international anti-mercenary laws, along with normative expectations, marginalized private military forces. Their return, as business enterprises or not, are still subject to state control. The willingness of the state to control their citizens and corporations that receive state benefits, such as telecommunications and transportation infrastructure and security, to facilitate the conduct of their business, is where the accountability ultimately resides. Whether a state chooses to legislate or enforce laws on foreign deployed troops, public as part of a PKF or private, is entirely dependent on the state. The international collective lacks the teeth to adequately and sufficiently regulate either.
The case of DUTCHBAT in Srebrenica PKF demonstrates the legal shortcomings and raises the issue of “moral fitness” included in debate over the trajectory of private military forces. The DUTCHBAT participated in trades for sex, tobacco, and money, and permitted the massacre of up to 7,000 civilians they were assigned to protect. Where does the responsibility and liability rest? In this case NATO and the UN failed to provide the air support DUTCHBAT required to fulfil its mandate since the politics of the mission prevented sufficient arming of DUTCHBAT. There was, however, nothing the international community could do. If any legal recourse was to be done, it would only be in accordance with the will of the Netherlands.
While in some cases private military force has been explicitly brought under the legal umbrella governing public military force, such as the American Military Extraterritorial Jurisdiction Act of 2000 (MEJA) that extends the UCMJ to cover private forces working alongside the United States Armed Forces, there remains the requirement of the authorizing state to hold their military forces, public or private, accountable.
The accountability of a private military force authorized by a state is similar to a public military force operating under the authorization of the international community. In other words, both private military and public military are transformed into non-state military forces and both enjoy the same lack of liability in the international field. The dialogue of private military accountability is important with their rising use, but claiming a uniqueness of their situation is dangerously misleading. Accountability discussions should develop from legal frameworks for PKF responsibility that should be developed, but are unlikely, because it is likely we will see private military forces working within a PKF in the near future.