One of the main characteristics of the International Relations system is the monopoly of force in the hands of states which use their own means to enforce its sovereignty. This is such a vital feature of the state that its employment has has rarely been outsourced to the private sector. However, with defense budget constraints hitting several countries and the changing face of wars, the use of Private Military Companies (PMCs) has been increasing exponentially and companies like Blackwater (known today as Academi) are the main face of this growing industry affecting the world affairs.
Soldiers for hire is not a new thing. It has been used by all sort of political communities to fight their battles since the ancient times. However, with the Treaty of Westphalia which led to the formation of the modern sovereign state came the creation of standing arms. Its main goal is to defend the state’s sovereignty and keep the rule of law inside its borders. To privatize such a vital component of the state’s duties is controversial. Although, during the 20th century, some countries, corporations and groups started to make use of these soldiers for hire in a more professional way. They employed companies that would supply “contractors” to do the job of soldiers, mostly in so called proxy wars or dirty wars, usually in Africa and Asia. This professionalization of the fighting activity was responsible for the emergence of PMCs. Moreover, with the end of the Cold War and at the same time the wave of privatization of some of the state’s tasks and assets, PMCs flourished to fill the gap.
Up to that moment, the knowledge of the existence of PMCs was reserved to insiders or scholars of the subject. One of the first PMCs in the world was Executive Outcomes from South Africa, which is famous for its actions in the Angolan Civil War in the 90s. Moreover, there was Sandline International, which is accused of atrocities against local native populations in Papua New Guinea when acting in the name of big international mining companies to advance their agenda. Some other PMCs were also accused of orchestrating coups d’états in African countries. Other examples are the American DynCorp and Control Risks Group, which is formed mostly by ex-British Special Forces. The American KBR is slightly different as it has a greater focus on supportive roles like cooking and laundry. The justification in the use of PMCs came mostly because of its cost, which is far below the amount necessary to keep standing arms for long period of times, especially when great battles between states are becoming less and less frequent. This secondary role performed by PMCs changed with the American War on Terror which gave a completely new dimension to the use of PMCs in battle field, since, to be able to fight in two different wars at the same time and other activities around the world, the United States started making extensive use of PMCs.
It was in the first years of the Iraq war that the existence of PMCs became public knowledge and Blackwater became the symbol of such industry. This process happened in 2004, in Fallujah Iraq, when four Blackwater contractors were ambushed, killed, burned, then hung on a bridge. This led the American military to completely destroy that city in one of the bloodiest battles of the Iraq war and produced questions regarding who were those four American civilians and what they were doing in a conflict zone.
Blackwater represents PMCs so well because of its size, scope and brand. It received more than a billion dollars from the American government to perform tasks such as law enforcement training, security for very important American government figures and, the supply of provisions to soldiers in the battle field by plane. Moreover, Blackwater became a brand that sells millions in merchandise every year, from mugs with its bear paw to tactical gear for the military. Therefore, when talking about PMCs, the name Blackwater is intrinsically related although the company itself has changed the name several times, to Xe Services and then Academi.
However, it was an incident in 2007, once again with Blackwater contractors, that highlighted all the controversy in the use of PMCs by countries. In the incident that took place at Nisour Square in Baghdad, 17 civilians were killed. The whole legal process involving in punishing those responsible for the incident was hampered by the fact that PMCs lay in a gray area of the international judicial system.
Firstly, there is the issue of defining PMCs. This concern comes up when trying to determine if the contractors working for PMCs from one country, but are involved in conflicts of other countries, are in fact mercenaries. According to the United Nations Mercenary Convention (formally, the International Convention against the Recruitment, Use, Financing and Training of Mercenaries), some of the activities performed by PMC contractors fell under one or more of the law definitions for mercenaries. One of these definitions is “taking 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” and another would be “paid to combatants of similar rank and functions in the armed forces of that party or the contractor is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict”. However, the United States, which is the largest user of PMCs in the world, has not signed the United Nations Mercenary Convention. This could limit its use of PMCs, especially after the release of a two-year study UN report in 2007 which stated that although hired as “security guards,” private contractors were performing military duties for the US Department of Defense and State Department.
Secondly, another judicial issue with the use by government of contractors from PMCs is the problem of accountability. In normal conflicts, regular armed forces from most countries are subject to military law for disciplinary actions. The problem with this is that contractors are not militaries but they still do perform military activities such as convoy escort, security, arms training and others where they are constantly carrying loaded weapons ready for use in “self-defense.” In the case of criminal actions in the “line of duty,” should contractors be judged by the country where they were working or by the country they were working for? In the first years of the Iraq war, this doubt caused a lot of confusion. However, in 2007 the Military Extraterritorial Jurisdiction Act came into effect which allowed the extension of federal law to civilians supporting military operations as this would be the most likely way to prosecute contractors in case of misconduct. Although, the enacting of this law would not answer all cases around the world where contractors from the country A, working in country B were hired by a PMC providing service for country C. The Uniform Code of Military Justice and other legislations do not cover foreign contractors, which amount to around 65% of the total personnel. Most of these contractors, especially the ones used by Blackwater were previous American military serviceman, although there were also ex-Special Forces from several different countries like Russia, Poland, United Kingdom, war veterans from the Balkans war, South African officers from the time of the Apartheid, and ex-French Foreign Legionaries. This further complicates the whole system of punishment in the case misconduct. Up to this day, the lack of international governance in this case leaves the use of PMCs in a legal limbo.
These legal issues have not been preventing a growing use of PMCs by countries, corporations, international organizations and even individuals. PMCs have also been used during environmental disasters. One example was during the hurricane Katrina, when Blackwater contractors helped with the relief efforts and secured sensitive sits. Cost benefit and professionalism are the main attractions in the use of contractors. Some argue that PMCs should even be employed in UN missions around the globe, which has been criticized several times for employing poorly trained troops from underdeveloped countries.
In the last decades, the reliance on private soldiers to accomplish tasks directly affecting the tactical and strategic success of engagement in war has never been so large. This does not mean PMCs will completely replace the use of standing arms by states in its employment of force. It instead suggests that the larger use of PMCs represent the new business face of warfare which will have consequences in the international global politics. It remains to be seen if PMCs like Blackwater will be able to wash away the stains of the past and be accepted as legitimate player in geopolitics.