Private military companies: a word of caution

Since the gruesome killing of four American private military contractors in Falluja, Iraq, in March 2004, the major Western media outlets have been replete with articles on private military and security companies. Little by little, the public has been discovering the breadth and depth of the involvement of private contractors in some of today’s conflicts. In Iraq, private contractors are, for example, running large parts of the logistical chain on behalf of the multinational forces; providing protection for military compounds, for public buildings and for officials; manning checkpoints; and operating weapon systems. When the Abu Ghraib prison scandal broke in early 2004, the public learned that private contractors had even been hired to interrogate prisoners and gather intelligence. This article does not try to weigh the pros and cons of this trend. Rather, it aims to identify some of the humanitarian consequences of the privatisation of military services. This focus on threats should not be understood as negating the potential benefits and opportunities offered by the private military industry.

How large a business is it?

No one seems able to provide an accurate and verifiable figure of how many companies and individuals are involved in the private military and security business, even in places as closely monitored by the media as Iraq. Current estimates for Iraq put the figure at some 20,000 private contractors, and rising. Although it is often said that private contractors form the second-largest military contingent in Iraq after the US armed forces, this is misleading. These contractors constitute a very disparate collection of companies or units, contracted for very different missions. They follow very different rules of engagement (when these exist). They integrate in very different ways within the multinational military and with Iraqi forces. Some of these private forces are long-established companies with demonstrated operational experience and transparent business structures. Others seem to be little more than loose groups of adventurers. And individuals come from very disparate military or security backgrounds.

Potential threats

These differences in terms of professionalism and reliability open up troubling possibilities. They permit the delivery of poor-quality services to creep in. In the military field, in particular in tense security environments, this can easily turn into a direct threat to the civilian population. This article looks at five main points.

1. The multiplicity of armed forces, both public and private, siding with one party to a conflict and operating in a single geographical space along different sets of rules is disconcerting. The various military forces do not fall under the same command and do not follow the same modus operandi. It may well be the case that, to fulfil their contractual obligations, some private military actors may engage in tactical operations that ultimately complicate or delay the realisation of the overall military objective set by the formal military. In certain circumstances, their interests may, in fact, diverge. Peter Warren Singer, a Fellow at the Brookings Institution in Washington and a specialist in this area, has underlined this tension in an article analysing the impact of private contractors in the Abu Ghraib scandal. Quoting an excerpt from the Fay report, the US army investigation into the scandal, Singer writes: ‘Soldiers didn’t know how to handle contractors in order to “protect the Army’s interests”’. Once transposed into villages and cities, the confusion caused by disparate modi operandi and by conflicts of interest between various armed forces may create misunderstandings, tensions and possibly armed incidents. The civilian population is likely to bear the brunt.
2. Another cause for concern is the poor training in international humanitarian law that some of these private actors receive, if they are trained at all. The International Committee of the Red Cross (ICRC) knows well how difficult it is for armed forces to integrate respect for international humanitarian law into each and every dimension of military life. The emergence of private contractors only adds to this challenge. These companies typically have very few permanent staff, with most employees hired on short contracts as needed. One of their market advantages – very rapid deployment capacity – and the pressure for profitability are not conducive to the solid integration of international humanitarian law into their business practices. It is known that unprepared armed personnel tend to be dangerous to themselves and to their immediate environment. Civilians are likely to be their first casualties.
3. If some private contractors are poorly trained, others seem to offer a wealth of experience, but in dubious military operations. Private military companies claim that they have proper vetting procedures for the personnel they hire. Similarly, the entities (be they public or private) contracting out military services to private companies claim that they have proper vetting procedures for the companies they engage. There are instances where this welcome sense of responsibility has not apparently resisted the pressure and urgency of market demand. The presence in the field of individuals with tainted military records clearly represents an extra threat to the civilian population.
4. One of the pillars of international humanitarian law is the distinction between civilian and military, between combatants and non-combatants. Yet private military companies cannot be slotted easily into either category. Their position depends on a range of factors, including the nature of their contracts, their level of integration within the structure of the public armed forces involved and their actual operations. Even private contractors who are not integrated into the armed forces, and who are thus civilian, lose the protection granted to civilians under international humanitarian law (most notably immunity from attack) as soon as, and for as long as, they directly participate in hostilities. However, there is no universal agreement as to exactly what constitutes ‘direct participation in hostilities’. There is a lack of precise information on a large part of the activities carried out by the private military sector, and there is no clear-cut legal position as to whether these acts amount to taking a direct part in hostilities. The situation is complicated further by the fact that private military contractors in the field dress in the way that best suits their own interests. A private contractor who was sentenced in September 2004 for torturing Afghans and running a private prison in Kabul is said to have duped the NATO-led international peacekeeping force in Afghanistan (ISAF) into offering him punctual assistance. According to a BBC report, the ISAF forces ‘were fooled by the US-style uniforms and professional approach of the men’. In the same country, other private military contractors are wearing civilian clothes and driving civilian cars with number-plates normally reserved for humanitarian organisations. Some private contractors thus take advantage of the difficulty around clearly considering them as either combatants or non-combatants. This opportunistic attitude reinforces the impression of a continuum between military and humanitarian actions. This blurs the roles of military and humanitarian actors in a way that clearly threatens neutral and impartial humanitarian action, as it renders the environment unsafe for humanitarian workers, forcing them to leave or to impose limitations on where and how they work. Ultimately, this has damaging effects for the civilian population, for instance in terms of lost humanitarian services.
5. While it is clear that private military companies and their employees, as well as the states that hire them, are responsible for any violations of international humanitarian law which may be committed, in practice mechanisms for holding them accountable, and if necessary bringing these companies and their employees to justice, often do not exist. Companies and their staff may have been granted immunity from prosecution before the courts of the countries where they work, or courts may not be operating because of the conflict. Similarly, it may be difficult to bring proceedings before the courts of the states where the private military companies are registered as the violations are likely to have taken place abroad, and most national courts have only limited extra-territorial jurisdiction.

This situation may be changing in the wake of the involvement of private contractors in Abu Ghraib. This scandal has highlighted the need for a system that will sanction companies or individuals violating provisions of international humanitarian law. Without a solid framework of accountability, rogue elements may feel immune from prosecution. In such circumstances they become more prone to commit violations, for which the civilian population is likely to pay the price.

Developing a dialogue

The full scale of private military contractors’ impact, both positive and negative, on the overall humanitarian situation remains to be determined. As far as ICRC is aware, there is no official data as to the number and circumstances of Iraqi civilian deaths due to the use of force by private contractors. Nor are there data as to the number of private military contractors killed in Iraq.

This article has focused on the concerns of humanitarian actors. It aims to identify risks, in order to be better able to manage them in the future. The lessons from environments such as Iraq and Afghanistan show that, at a minimum, private military companies should operate within a more defined framework with regard to vetting and training, and with regard to accountability mechanisms. The present haziness allows for unprofessional service delivery. This is not satisfactory for civilian populations and humanitarian workers in conflict zones (because of the increased security risks, among other things); for long-established private security companies (because of the risk of damage to the whole industry’s reputation); and for the states and other actors contracting them (because of the risks created by poor service delivery).

The ICRC has taken stock of this. It has decided to develop a dialogue with private military companies, with a view to reminding them that, whenever they are involved in a conflict, they do not operate in a legal void. International humanitarian law applies to them, conferring upon them obligations as well as rights.

This dialogue with the private military sector will be complemented by a parallel dialogue with the state entities directly linked to the phenomenon, because they hire private military contractors, because they benefit from their services, or because they are the state where the companies are registered. Common Article 1 to the four Geneva Conventions requires that High Contracting Parties undertake to ‘respect’ and ‘ensure respect for’ the Conventions ‘in all circumstances’. Moreover, it is a generally accepted principle of international law that states are responsible not only for their acts and those of their organs, but also for acts committed by entities that have been empowered to exercise elements of governmental authority. This is the case for instance when a state entity contracts out a task or an operation to a private military company. Finally, it is generally accepted that states must exercise ‘due diligence’ to prevent and punish violations by private individuals or entities operating on, or from, their territory.

While the principle of responsibility is well-established at international level, its implementation at national level is still rudimentary. Some states have adopted domestic laws dealing, often indirectly, with the provision of private military services. Mechanisms of control (in the form of regulation, notification or licensing schemes) are often found in laws that regulate the sale and export of weapons. However, these few laws could not fully deliver on their promises. Indeed, despite having a tough and specific set of laws meant to control the phenomenon, South Africa struggles to contain the flow of its nationals being hired to provide private military services abroad, to the point that there is ‘growing consternation in Pretoria about the role of South Africa in the Iraq war and March’s alleged coup plot against Equatorial Guinea’. Domestic regulatory frameworks are, in other words, piecemeal and ill-suited to reality on the ground. Even the best national legislation will not suffice given the international character of the private military industry, which is quick to cross borders in search of friendlier business environments.

This reminds us that a regulatory framework must be supported by a committed willingness to implement it. A solid and comprehensive regulatory framework supported by all stakeholders is still a long way off. In the meantime, the ICRC will continue to encourage states and private military companies to work on the following two issues, which it considers priorities from a humanitarian point of view: first, that private military contractors deployed in conflict situations are properly trained in the basic provisions of international humanitarian law; and second, that transparent accountability processes exist to prevent and punish violations of these provisions.

Claude Voillatis Deputy Head, Private Sector Relations, General Directorate, ICRC. His email address is cvoillat.gva@icrc.org. The views expressed in this article are the author’s own, and do not necessarily reflect those of the ICRC.

References and further reading

Peter W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca, NY : Cornell University Press, 2003).
Foreign and Commonwealth Office, Private Military Companies: Options for Regulation, February 2002, www.fco.gov.uk/Files/kfile/mercenaries,0.pdf.

Republic of South Africa, Regulation of Foreign Military Assistance Act, May 1998, http://projects.sipri.se/expcon/natexpcon/SAfrica/formilass.htm.

International Peace Operations Association (IPOA), IPOA Code of Conduct, March 2004, http://www.ipoaonline.org/code.htm.

Coalition Provisional Authority, Coalition Provisional Authority Memorandum Number 17, Baghdad, June 2004, http://www.iraqcoalition.org.