The Privatization of War
Introduction
The privatization of war is a modern-day phenomenon that continues to raise more questions than answers. Today, and without abdicating their ultimate responsibility for law enforcement and criminal justice; governments across the globe are continually and increasingly opting to delegate war to the private sector.
This delegation raises serious economic, legal, and ethical concerns with regards to its effectiveness, accountability, safeguards, and adherence to the rules of war and observation of human rights. More so, it raises the question of the legitimacy of war by inviting private military firms using money as the primary incentive of inspiring loyalty(Tyner 2016).
War is defined to mean the state of forcible and armed contention between nations. The nature of armed conflict is such that it is reached and used after all negotiations channels have been exhausted, and parties have failed to agree. This insistence on exhausting all channels of mitigation is founded upon the reality that of all enemies to public liberty is war; war has far-reaching consequences in every sphere of the life of a nation and its citizens.
It is in the realization of the dire consequences of war that makes the law of war the most developed and detailed body of international law that regulates the conduct of the war. As a major facet of international law, the law of war is detailed to the extent that it provides for definitions of the sovereignty of nations and seeks to provide guidance on the declaration of war, treatment of prisoners of war, military involvement, and prohibition of certain weapons.
The provisions of the Geneva convention are founded upon the principles of Just war (jus ad bellum) which take into consideration the justification of war, the need for limitation of the use of force. The jus ad bellum provides for the criteria of a just war; these criteria include demands that for a war to be just, it must be declared openly by the requisite authority, the war must have a just cause, the warring states must have just intentions and that the aim of the war must be peace.
The intention and purpose of the laws of war as provided for by the Geneva convention are to provide the primary threshold and justification for engaging in warfare; this scope is limited to the extent of achieving the political goals that instigated the war in a quick fashion that does not infringe upon the individual and property rights of civilians. Warring nations are placed under a strict obligation to adhere to the provisions of the laws of war; any breach of these laws warrants the intervention of foreign nations in an attempt to protect the rights of citizens against arbitrary use of military force and in some instances bringing forth criminal charges against the aggressors.
The requirements and demand for strict adherence to the provisions of the Laws of war raises concerns about the liability and dedication to adhere to internationally agreed-upon standards by the private military firms
Background
The concept and practice of hiring private military firms is not alien; in fact the involvement of private citizens in war existed long before the use of the military in armed conflict. Militaries are a by-product of the development of the world order which established territorial sovereign states. The development of territorial sovereign states restricted the absolute claim for monopoly over force to the sovereign. Thereby, necessitating the development of conscription to the armies and the subsequent ban of citizen fighting.
However, in the past two centuries, the strict reservation of monopoly of violence has been put to the test and proved to be the exception rather than the rule. The true test came during the decolonization period where many newly independent states lacked the capacity to engage in organized violence through state military. As a result, the majority of the new states resorted to hiring mercenaries to fight their wars.
The second world war and the collapse of the Soviet Union created factors that favored the development, use, and reliance on private military firms. These factors include; lack of enough capital to sustain a military or use of the military in an armed conflict, the absence of immediate threats. The early 1900’s up until the end of the second world war was a period of global armed conflict, and many people enlisted to join armies as a means to seek a livelihood.The end of the second world war and the subsequent demilitarization exercise carried left many people jobless, thus creating a prime market for the Private military firms which had access to cheap labor from former military personnel.
Private Military Firms
The term private military firms refer to security contractors whose main operations revolve around profiting from offering qualified military and security services. The services rendered by these firms include but are not limited to offering logistical support, crime deterrence, intelligence gathering, peace-keeping, and protection services.
It is without a doubt that the private military firms carry out their mandate as per instructions; otherwise, the industry would not be booming with business. In fact, private military firms are preferred over the state army to carry out daily duties of timely resolution of conflicts and establishing peace.
The Private Military industry
Warfare is an expensive affair and the ability to win or lose a war largely depends on a Nation’s ability to effectively fund and sustain a war. The decision to engage in any war is therefore determined by the economic benefits that a Nation is set to reap from winning the war. If and when the cost of war proves to be equal or less to the benefits of winning, disputing nations will tend to refrain from warfare. However, if the costs benefits outweigh the costs disputing Nations have a decision to make on their economic readiness to fund the war. As such, the primary question faced by disputing Nations is whether their country’s economy can take and sustain the hit of going to war.
The private military industry was founded out of the need by states to engage in warfare even when it seeks to bridge the economical challenges of funding a state military war at a price that is significantly less than that would be incurred by using state military. In essence, private military firms offer an affordable alternative that is not only realistic but also effective and expedient.
Private military firms are therefore profit-driven organizations that specialize in trading professional services that are intricately linked to warfare. These firms specialize in the provision of military skills
The continued use of Private military firms across the globe is largely credited to its level of efficient delivery of services. This efficiency is measured in terms of ending conflict and reestablishing peace. Being independent contractors, private military firms increase the odds of a nation succeeding because they can be used as force multipliers; thereby tipping the equilibrium in favor of their employer. Secondly, in case a state’s military personnel is strained, private military firms can be hired to free up regional troops for military tasks. Thirdly, if an operation involves a long-term commitment that requires training, Private military firms are better placed to offer faster, stable and cost-effective solutions because state armies invest heavily in training while Private military firms hire trained ex-soldiers. Hence, speed up the process of war readiness by saving time and money. Fourthly, by hiring private military firms states avoid the tedious process of procurement of arms. By breaking the bureaucratic chain, private military firms increase the likelihood of success and peace.
The Global Reach of Private Military Firms
The private military firm’s industry has significantly grown in the past two decades; state governments have preffered delegating military duties to the corporate entities due to their effectiveness and commitment to fulfilling contractual obligations.
In the last decade, Private military firms have been hired to conduct operations in backwaters, and strategic geographical zones by both rich and developing nations. For example, Saudi Arabia continues to rely heavily on private military firms to provide a variety of military services that include; operating its air defense, to training the nation’s forces and offering advisory opinions. Other Nations like Kenya and Tanzania have depended on foreign military corporations to train and offer requisite support to their militaries(Armstrong 2017).
The privatized military firms also render their services to developed countries, such as the United States of America. In fact, almost every major U.S military operation conducted post-cold war has involved significant private military firms.
Characteristics of the Private Military Firms Industry
The private military industry is overly dynamic if compared to other corporate industries. Private military firms do not require a large start-up capital nor does it require a large pool of employees. These firms hire employees on a need basis and end their contractual obligations upon completing a mission. The firms retain absolute discretion on the criteria of hiring workers and strive to maintain all barriers at an absolute minimum.
When compared to state militaries that require a regular and substantial budget, private military firms only require intellectual capital to keep running. Also, the private military firms stand to gain from the availability of tools and weapons on the open market at a bargain. Another characteristic and added advantage for the private military firms is that their labor input that is predominantly ex-soldiers is readily available.
In essence, Private military firms operate and take the form of virtual companies; they do not maintain standing forces but draw from their database of qualified personnel on a contract-by-contract basis(kamali 2016).
Implications of the Privatized Military Industry for International Security
The main issues resulting from the increased use of PMC’s is the lack of oversight and the fact that the international market for private security is to a large extent unregulated. On top of that is the nature of their services and delivered goods, which in many cases lie in a grey area; not easily defined according to existing legal frames. In this section the complexity of the PMI and the conditions in which the PMC operates, will be assessed. Further the changes in the regulatory framework that has taken place by the processes of globalization will be 30 examined. Three main questions arise with the increased use of PMC’s: the question of democracy, the question of control of armed forces and the question of legitimacy. The nature and the activities of PMC’s are extremely complex and often difficult to identify, for example Deborah D. Avant (2005) defines as ‘private’ all non-governmental actors or non-state actor (NSA). That includes NGO’s and commercial entities, but also independent militia and even organized crime. She identifies the different actors and how they are related by characterizing them by the way they are financed and by the way their services are delivered. Thus Avant identifies five different actors: National, Foreign national, Multinational, Private (for-profit) and Private (not-for-profit), and up to twenty different relationships and organization of violence.
The national and international dimensions, have historically been played out in 9 different ways, where the nation-state hypothetically holds full control of force (the shaded areas in the table above), but with private actors involved it is played out in 11 different ways. By this analysis it can be seen that privatization means increased complexity. The nation-state is involved in most of the cases in which force is being deployed and has different arrangements with private enterprise, whether only delivering, only financing or both delivering and financing military operations. Therefore, even though the state is involved in most-case scenarios it holds limited control and oversight of the force that is being deployed. Even in multi-national operations each and individual state has limited control and oversight. Avant (2005) is concerned with three main issues of control: political control (i.e. who is in charge of decision making), functional control (i.e. the capabilities of the armed forces), and social control (i.e. whether international laws and values upheld).
These three issues regarding the control of force apply differently depending on the different relationships and organization of violence (see table above) e.g. “When states contract for private delivery of security services, when states regulate security services export, and when non-state actors finance security services” (Avant, 2005, p. 57-77). These 3 main issues increase complexity of the financing and delivery of force, coincide with the three questions put forth: the question of democracy, the question of control of armed forces and the question of legitimacy. All this is stemming from the new reality of warfare, where the nation-state seems to be giving up one of its main characteristics, i.e. the monopoly of violence. The erosion of state-sovereignty deriving from 32 globalization is a fact. In this context one of the most significant changes that have been taking place in the international arena is the emergence of the non-state actor (NSA), which is gaining status within and across the nation-state system. These new actors are diversified players in the international theater, either taking advantage of and profiting from the changed reality of warfare, or monitoring and denouncing human rights violations in conflict zones, pressing for reform or regulatory systems that could apply for the unregulated market for force. In the era of globalization, the political- and social development of the ever-increasing influence and power of NSA is more and more evident in the international arena. There are numerous incidents that point out the level at which this powerful new player can have influence on, and change the foreign policy of, the state itself. U.S. firms often go beyond the influence of American embassies on societies in which they operate, and dept rating agencies can have enormous effects on the fiscal policy of different states. Also, drug cartels and terrorists have a direct effect on public policies. The state might set the over-all rules and regulation (or deregulation), but it does not necessary have to play the game. In the awakening of the war in Iraq, there was already a plan for removal of thousands of deadly landmines.
This plan was not made within the Pentagon, but by a private contractor hoping for a lucrative contract. Most intriguing example of NSA influence is the case of the International Campaign to Ban Landmines (ICBL), which resulted in wide support for a treaty banning landmines, and in 1999 it became international law after the 40th state had formally ratified the Mine Ban Treaty. What the U.N. had struggled for decades to achieve, ICBL managed in just six years (Cohen & Küpçü, 2005). As of March 2007, 151 states are parties to the convention, 41 states are yet to sign, including the U.S.
The state has become more and more dependent on the increasing role of the NSA within the international system. On an increasing level the NSA’s are setting the global agenda, prioritizing global threats and providing solutions to modern challenges, such as terrorism, global warming, environmental degradation, the AIDS crisis and corruption, to mention a few. In reality the changing role of the NSA is probably due to the fact that even the most powerful states lack the resources necessary to address these global threats. But what is most striking with this trend is that while some cooperate well with the state, others tend to operate by their own rules. These actors are set out mainly to defend their own interests, which sometimes contradicts the interests of the state or government (Cohen & Küpçü, 2005).
The Question of Democracy: Who Makes the Decisions? Political control is always altered when PMC’s are deployed. Indeed the involvement of PMC’s may lead to a total redistribution of power and even a regime change. For example Avant (2005) claims that the involvement of PMC’s in Sierra Leone in the 1990’s is such an instance, for PMC’s caused avoidable conflicts and huge political changes (contra Singer). As the hiring of PMC’s is usually in the hands of the executive power, representative bodies have often little to say about it and no means to influence the decision-making process: a shift of power is evident within the political sphere. Internationally the large scale of privatization in the U.S. alone and the readily available private force, means that there is no need to convince the broader international community of the importance of a military intervention, and could lessen the U.S. willingness for international cooperation and multi-lateral support. If powerful states can buy force to pursue foreign policy plans that lack broad international support and can change or undermine the UN and other international institutions, thus increasing the likelihood of conflict (Avant, 2005). 34 “Our human rights, the rule of law, democracy – the more these are priced, the less they are valued. The more we allow cost to be the only or primary consideration in assessing the imperatives of public policy, the less will be the protection offered to those who may need it the most but can afford it the least” (Harker 1998, Privatizing Security section, para. 5). The key distinction between public and private spheres is whether the agent is working under contract, subject to profit-making discipline, or if an agent is working within the public sector therefore subject to direct democratic and civil-service accountability systems. The current thrust for privatization is motivated largely by commercial gains of private entities rather than real gains to the nation and the citizenry. The outcome of privatization is that deployment of force shifts from under democratic accountability systems to a profit-making discipline (Markusen, 2003). A corporation is obliged only to serve, and is ultimately liable only to it shareholders. Also, a corporation is granted the full rights of a natural person, like the individual citizen, but is exempt from many of the liabilities and responsibilities of citizenship (Korten, 2001). This in itself raises the question of the public benefits derived from outsourcing military services. As Singer (2003) points out PMC’s have a tendency to make their clientele dependent on their services, be it another corporation, a private entity, or the government of a state (p. 96). This implies that their goal is to a certain extent not to serve their clients, but rather the selfpreservation of the company itself. Only liable to the corporate shareholder, the PMC’s do not have to answer to the parliament or other democratic institutions. In short the PMC is more likely to respond to market incentives than democratic control or public policy. 35 It could be argued that privatizing security and military affairs is a way to pass beyond democratic control (Avant, 2000; Cohen & Küpçü, 2005; Isenberg, 2006a; Singer, 2000).
States that use PMC’s may make the execution of force much easier by avoiding public debate, side-stepping democratic control, and undermining the same processes. By using PMC’s it becomes unnecessary to involve, both the general public and any representative national assembly in foreign policy. In other words sending military troops to foreign countries in a different part of the world does not have to be debated in parliament. Yet public disclosure and debate of the use of force in the international arena is fundamental to democracy, regarding both public participation and public concerns.
Privatization may thus be not only or even mainly about saving money, but rather avoiding tough political issues, such as military needs and the human consequences of war. The increased use of PMC’s seems to be driven by political cost-savings as much as financial cost-savings (Singer, 2004; Avant, 2005). One of the core principles of the Western system of government is the civil supremacy over the military. The military should merely implement policy but not make policy; in other words, the army should only be concerned about the means to achieve the end set by the state. Indeed, since means and ends are relative; i.e. ends in one aspect can be means in another, it is for the civilian leadership to decide where to draw the line between ends and means (Kemp & Hudlin, 1992).
Thus one of the main problems with outsourcing security becomes the lack of oversight and unclear final outcome of privately executed military operations. This also affects the outcome and oversight of national forces operating alongside the PMC, i.e. the means and the ends of a contract are often far from clear cut, the PMC has a potential to become a ‘wild-card’ in the ‘war-game’. Hence it is therefore hard to say that the civil supremacy over the military is actually the case. T
he mission of the PMC, which actually 36 holds military position and effective power of coercion, are often, at least partly, decided within the corporate office, rather than within the national assembly. And PMC’s objectives as contractors tend to be different from the customer’s and skewed by, for instance, the profit motive. Therefore questions arise on whether civil supremacy can be upheld in the current global market for force. In reality, there is a link between the PMC and the MNC operating in dangerous areas and in conflict zones. These MNC’s often hire another for security purposes, in exchange for future concessions in a weak state, where the government can not afford the cost of maintaining security.
It is important to be aware of that the PMC’s are themselves MNC’s. These corporations, recognizing that the governments in the most desperate need for their services are often those that can least afford it, are known to ask for mining concessions or oil contracts, rather than cash payments, and have also a clear incentive for maintaining the state weak as they found it. There is widespread agreement among scholars in the field of security studies that such liaisons are detrimental to the interests of both governments and the citizenry but can prove lucrative business for the multinationals. MNC’s investing in weak states are often the main source for much needed revenue, thus diminishing the state’s need for popular support and counteract democratization (Avant, 2005). Again the PMC’s as part of MNC’s operations are much more responsive to market incentives than governmental priorities (Mandel, 2002). In addition Isenberg (2006a) has pointed out that many of the contracts made between governments and PMC’s are so-called cost-plus contracts, e.g., where contractors actually get paid for all costs, plus negotiated percentage on top. That is to say, there is an incentive to keep costs high to increase the total profits negotiated beforehand.
The Question of Control: Who Controls Whom?
In the matter of functional control, strong states using PMC’s might enhance their control of military force, in particular, to begin with, weak states might gain functional advantages but there is a stronger tendency for them to get dependent on the MPC as a provider. The benefits from the use of PMC’s with U.S. forces have granted some functional advantages, their use has for instance been incorporated into the U.S defense strategy (Rumsfeld, 2015),
But there are serious issues in regards to of efficiency and effectiveness that will be discussed in the following pages. The U.S. may gain increased flexibility by outsourcing military operations but it is also likely that it will result in functional losses (Avant, 2005, p. 132). The loss of control also lies within the practical sphere of military operations. The PMC’s are not under military discipline and can choose to withdraw or end an operation if the risks are too high. According to Singer,(2004) during a couple of occasions in the current war in Iraq, the U.S. forces faced the situation of many firms delaying, suspending, or terminating operations because of insecure conditions, e.g. increases in insurgency and kidnappings of contractors. Additionally, if the military wanted to recover some of the responsibilities that have been outsourced, military personnel may neither have the basic skills nor the equipment needed to perform those tasks.
The real danger is however whether a contractor could usurp power, like Singer puts it “Hired guns may serve a client’s wishes today, but force the client to honor their whishes tomorrow” (Singer, 2013, p. 164). Singer further raises the questions of how changes in the market could affect the control of force e.g. bankruptcies, mergers, or company takeovers, presumably by identities opposing certain operations. Is it probable that a battle, a fight, a mission or a war could be lost in the boardroom rather than on the battlefield? 38 In the GAO report on military operations from the year 2003 or before the invasion of Iraq, neither DOD nor the U.S. army services had identified those PMC’s that provide mission essential services or come up with detailed backup plan to ensure that essential contractorprovided services would not be discontinued if the contractors, for any reason, did not follow through on a signed contract. Further, there were no policies on the use of contractors to support deployed forces with the DOD and no clear understanding of the governments’ responsibility towards contractors in the event of hostilities.
This lack of proper planning has been problematic and hindered effective management of contractors, as commanders have often had several PMC’s at their location with different responsibilities and obligations towards the army units deployed. Further, commanders have had limited oversight e.g. over the extent and types of services being provided by contractors.
This has made it very difficult for commanders to realize just how much they are reliant on the services rendered by the PMC’s to perform their mission and how to respond to contractor failure if and when it has occurred (GAO, 2003). The GAO report on military operation from December 2006, titled “High-Level DOD Action Needed to Address Long-standing Problems with Management and Oversight of Contractors Supporting Deployed Forces”, reports an increased use of PMC’ in military operations as well as their growing complexity and scale. The title of the report tells of expanding difficulties in oversight and management since the last report on the same matter published in 2003 (and cited here above). It is emphasized in the 2006 report that the DOD’s reliance on PMC’s continues to grow, as they did before the release of the 2003 report, while control over ever increasing numbers of PMC’s on deployed locations continues to be problematic (GAO, 2006).
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