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The United States is justified in using private military firms abroad to pursue its military objectives.
Victory Briefs Topic Analysis Book: Lincoln-Douglas March/April 2011 – 10NFL4-PMFs © 2011 Victory Briefs, LLC Victory Briefs Topic Analysis Books are published by: Victory Briefs, LLC 925 North Norman Place Los Angeles, California 90049 Publisher: Victor Jih | Managing Editor: Mike Bietz | Editor: Mike Bietz | Topic Analysis Writers: Ryan Hamilton, Sarah Rainey, Todd Rainey, Christian Tarsney, Adam Torson | Evidence: Christian Tarsney & Adam Torson For customer support, please email email@example.com or call 310.472.6364.
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TABLE OF CONTENTS TOPIC ANALYSIS BY RYAN HAMILTON TOPIC ANALYSIS BY CHRISTIAN TARSNEY TOPIC ANALYSIS BY ADAM TORSON TOPIC ANALYSIS BY SARAH RAINEY TOPIC ANALYSIS BY TODD RAINEY FRAMEWORK EVIDENCE 2 8 20 33 55 65 74
DEFINITION OF PMFS. 74 DEFINITION AND DESCRIPTION OF PMFS. 74 PMFS HAVE COME TO BE WIDELY UTILIZED BY STATES OVER THE LAST TWO DECADES. 75 PRIVATE MILITARY CONTRACTORS INCLUDE FIRMS THAT PROVIDE LOGISTICAL SUPPORT, PRIVATE SECURITY, AND THAT SUPPORT OR ENGAGE IN REGULAR MILITARY OPERATIONS. 76 THE RISE OF PRIVATE MILITARY FIRMS IS TIED TO THE UNDEREMPLOYMENT OF MILITARY PERSONNEL AFTER THE COLD WAR, AN INFLUX OF ARMS INTO THE PRIVATE MARKET, INCREASING GLOBAL INSTABILITY, AND THE TREND TOWARD PRIVATIZATION AT THE END OF THE 20TH CENTURY. 77 IT IS NOT ALWAYS CLEAR WHETHER PMC PERSONNEL ARE CONSIDERED “CIVILIANS” AS OPPOSED TO “COMBATANTS” UNDER THE INTERNATIONAL LAW OF WAR. 79 TRANSPARENCY AND ACCOUNTABILITY ARE CENTRAL COMPONENTS OF DEMOCRATIC LEGITIMACY. 80 DEMOCRACY DOES NOT REQUIRE PERFECT TRANSPARENCY AND ACCOUNTABILITY. 81 PMCS ARE AN ENORMOUS GLOBAL INDUSTRY. 82 MILITARY SUPPORT FIRMS – DEFINED 82 MILITARY CONSULTING FIRMS – DEFINED 83 MILITARY PROVIDER FIRMS – DEFINED 84 THE UNITED STATES USED A HUGE NUMBER OF PMCS IN IRAQ. 85 MERCENARY – DEFINED IN INTERNATIONAL LAW 86 DEMOCRATIC CONTROL OVER THE MILITARY IS PARTICULARLY IMPORTANT, ESPECIALLY IN RELATION TO HUMANITARIAN INTERVENTION. 87 UTILITARIAN FRAMEWORK FOR PMCS 88 AFFIRMATIVE EVIDENCE THE U.S. MILITARY IS DEPENDENT ON PRIVATE FIRMSʼ INGENUITY AND EXPERTISE TO DEVELOP, IMPLEMENT, AND MAINTAIN ADVANCED WEAPONS SYSTEMS. PMCS HAVE BEEN ESSENTIAL IN THE PROCESS OF REBUILDING IRAQ. PMCS ALLOW THE US TO MAINTAIN SURGE CAPACITY AND THE ABILITY TO DEPLOY RAPIDLY. PMCS ARE MORE COST EFFECTIVE THAN CONVENTIONAL MILITARY FORCES. PRIVATIZING MILITARY SERVICES ALLOWS THE MARKET TO CORRECT FOR IMPERFECTIONS IN THE CONTRACTING PROCESS. PMCS MAY SERVE AS IMPORTANT SOURCE OF MILITARY INTELLIGENCE. INCIDENTS WITH PMCS IN IRAQ LET TO GREATER OVERSIGHT STARTING IN LATE 2007. BEGINNING IN LATE 2007, THE DEPARTMENT OF DEFENSE HAS IMPROVED ITS CONTRACTING PROCESS WITH PMCS TO ENSURE GREATER OVERSIGHT, ACCOUNTABILITY, AND TRAINING. IN LATE 2007, THE STATE DEPARTMENT TOOK A NUMBER OF STEPS TO SUBSTANTIALLY IMPROVE REGULATION AND OVERSIGHT OF PMCS. 90 90 91 92 93 93 94 95 97
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INTERAGENCY RULES CONCERNING PMC REGULATION HAVE SUBSTANTIALLY IMPROVED THEIR OPERATION SINCE LATE 2007. 99 THE PRACTICE OF USING PRIVATE FIRMS TO SUPPORT THE NATIONAL DEFENSE INFRASTRUCTURE HAS A LONG HISTORY. 100 THE NOTION OF A STRICT DIVISION BETWEEN PRIVATE AND GOVERNMENTAL FUNCTIONS IS NOT REALISTIC. 101 A STRONG DISTINCTION BETWEEN PUBLIC AND PRIVATE FUNCTIONS IS ILLUSORY. 102 CRITICS OFTEN EMPHASIZE THE ROLE OF ARMED CONTRACTORS BUT IGNORE DIFFICULT DISTINCTIONS BETWEEN THESE AND OTHER TYPES OF CONTRACTORS. 103 THE CLAIM THAT PRIVATIZATION OF DEFENSE SERVICES IS AN IMPROPER DELEGATION OF SOVEREIGN AUTHORITY RESTS ON AN OVERLY-SIMPLISTIC CONCEPTION OF SOVEREIGNTY. 104 REGULATORY ISSUES ARE SECONDARY IN RELATION TO THE FUNDAMENTAL QUESTION OF WHAT ROLE PRIVATE CONTRACTORS SHOULD PLAY IN PUBLIC DEFENSE. 105 SIMPLY SHOWING THAT PMCS HAVE A PROFIT MOTIVE DOES NOT MEAN THAT THEIR MOTIVATIONS CONFLICT WITH IMPORTANT NATIONAL SECURITY INTERESTS. 106 THERE IS NO EVIDENCE THAT PMCS CAUSE “BRAIN DRAIN” OR UNDERMINE MILITARY RETENTION. 107 EMPIRICAL DATA SHOWS THAT MOTIVATION AND RETENTION ISSUES ARE COMMON TO CONVENTIONAL FORCES AND CONTRACTORS, AND THAT WORK WITH CONTRACTORS DOES NOT REDUCE MILITARY RETENTION RATES. 108 THE PAY GAP BETWEEN SOLDIERS AND CONTRACTORS IS COMPENSATED FOR BY THE MILITARY BENEFITS PACKAGE. SOLDIERS AND CONTRACTORS HAVE SIMILAR JOB SATISFACTION. 109 PMCS ARE NO MORE PRONE TO UNLAWFUL VIOLENCE THAN CONVENTIONAL SOLDIERS. IN FACT MANY PMC PERSONNEL HAVE MORE TRAINING THAN THEIR MILITARY COUNTERPARTS. 110 DEMOGRAPHIC DATA SUGGEST THAT PMC PERSONNEL ARE NO MORE LIKELY TO COMMIT UNLAWFUL VIOLENCE THAN CONVENTIONAL SOLDIERS. 111 THE IDEA THAT THE PROFIT MOTIVE LEADS PMCS TO SELECT A PARTICULAR TYPE OF EMPLOYEE IS NEGATED BY THE FACT THAT PROFIT IS ALSO A COMMON MOTIVATION FOR CONVENTIONAL SOLDIERS. BOTH ALSO SHARE THE DESIRE TO SERVE THE PUBLIC GOOD. 111 PMCS ARE NECESSARY TO DEPLOY ADVANCED WEAPONS TECHNOLOGY. 112 PMCS PERMIT STATES TO OPERATE AN EFFECTIVE MILITARY WITHOUT RESORTING TO CONSCRIPTION, WHICH IS BOTH DEMOCRATICALLY UNPOPULAR AND CREATES A LESS EFFECTIVE FIGHTING FORCE. 112 MILITARY FAILURES IN THE 20TH CENTURY HAVE GENERATED A STRONG PUBLIC DISTASTE FOR MILITARY CASUALTIES. 113 THE PERCEIVED GLOBALIZATION OF NATIONAL INTERESTS HAS SPURRED THE NEED TO DEVELOP THE CAPABILITY TO RAPIDLY PROJECT MILITARY FORCE. 114 PRIVATIZATION INCREASES THE QUALITY OF LABOR AVAILABLE TO GOVERNMENT AND ALLOWS THE
FUNCTIONAL RETENTION OF TRAINED PERSONNEL WHO WOULD OTHERWISE MOVE OUT OF THE SECURITY SECTOR ALTOGETHER.
115 THOUGH PMCS MAY BE MORE EXPENSIVE THAN CONVENTIONAL FORCES IN THE NEAR TERM, THE FACT THAT GOVERNMENT NEED NOT UTILIZE PMCS IN PEACETIME RESULTS IN NET COST SAVINGS OVER TIME. 116 PMCS ARE A MORE COST-EFFECTIVE WAY TO DEPLOY PERSONNEL WITH SPECIALIZED SKILLS. 117 PMCS SUPPORT NEEDED SURGE CAPACITY AND FORCE DIFFUSION. 118 PMCS FREE UP CONVENTIONAL FORCES TO FOCUS ON THE MISSION, IMPROVING EFFECTIVENESS AND JOB SATISFACTION. 118 THE USE OF INDIGENOUS PMCS MAY REDUCE TENSIONS IN FOREIGN COMBAT THEATRES AND IMPROVE COST EFFECTIVENESS. 119 THE ALTERNATIVE TO PMCS IS THE USE OF PROXY FIGHTERS, WHICH ARE MUCH LESS EFFECTIVE. 120 THE USE OF PROXY FIGHTERS UNDERMINES LEGITIMACY MORE THAN PMCS BECAUSE WE HAVE LESS CONTROL OVER THEIR ACTIONS AND THEY REQUIRE MORE EXTERNAL SUPPORT. 121 IDENTIFYING THE POTENTIAL HARMS OF PMCS IS NOT ENOUGH. OFTEN TIMES THEIR BENEFITS OUTWEIGH THEIR ADVANTAGES, AS WITH THE EXPERIENCE THEY BRING TO THE MILITARY INTELLIGENCE FIELD. 122 THE PUBLIC MILITARY ALSO LACKS SUBSTANTIAL TRANSPARENCY. 123
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WHILE THE TRANSPARENCY OF PMCS IS A CONCERN, CONGRESS AND THE COURTS HAVE THE POWER TO REQUIRE MORE SUBSTANTIAL DISCLOSURES THAN THEY CURRENTLY DO. 124 PMCS ARE MORE INCLINED TO DISCLOSE BECAUSE THEY ARE SENSITIVE TO THEIR COMMERCIAL REPUTATION. 125 PMCS ARE SHAPED BY THE NORMS OF THOSE WHO HIRE THEM BECAUSE THEY HAVE TO RESPOND TO THE DEMANDS OF THE MARKET. 126 EXISTING CONTRACT LAW PROVIDES A VIABLE MEANS OF CHECKING PMC ABUSES. 127 THERE IS NO INTERNATIONAL LAW BANNING MERCENARIES, AND PMCS DO NOT FIT THE DEFINITION OF “MERCENARY” ANYWAY. 128 PMCS ARE WELL EQUIPPED TO ALLEVIATE THE PRINCIPLE BARRIERS TO HUMANITARIAN INTERVENTIONS. 129 THE USE OF PMCS COULD OVERCOME MANY OF THE TRADITIONAL BARRIERS TO HUMANITARIAN INTERVENTION. 130 PMCS ARE ABLE TO MOBILE QUICKLY WITH WELL-TRAINED PERSONNEL TO DIRECTLY INTERVENE IN HUMANITARIAN CRISES. 131 PMCS COULD BE USED TO FILL IN RESOURCE GAPS THAT CURRENTLY EXIST FOR NATIONS OR INTERNATIONAL ORGANIZATIONS WILLING TO INTERVENE IN HUMANITARIAN CRISES. 132 PMCS COULD PROVIDE SUPPORT SERVICES TO MAKE HUMANITARIAN INTERVENTIONS MORE EFFECTIVE. 132 IT IS OFTEN IN A STATEʼS NATIONAL INTEREST TO ENGAGE IN HUMANITARIAN INTERVENTION. 133 TRADITIONAL AGENTS OF HUMANITARIAN INTERVENTION ARE SUBJECT TO THE SAME OBJECTIONS AS PMCS. 134 HUMANITARIAN CRISES REPRESENT THE WORST MORAL WRONG. 135 WHEN PMCS ARE LIKELY TO STOP A HORRIBLE GENOCIDE, THE MORAL ADVANTAGE OF USING THEM OUTWEIGHS THE MORAL CONCERNS OF DOING SO. 136 THE DIFFICULTY IN PREDICTING THE CONSEQUENCES OF HUMANITARIAN INTERVENTIONS IS NOT A COMPELLING OBJECTION TO THE USE OF PMCS IN MANY CIRCUMSTANCES. 137 PMF PERSONNEL ARE BETTER-TRAINED, MORE EXPERIENCED AND MORE EFFECITVE THAN REGULAR SOLDIERS. 138 PMFS ARE MILITARILY EFFECTIVE—SIERRA LEONE PROVES. 139 PMFS ARE MILITARILY EFFECTIVE—ANGOLA PROVES. 140 PMFS ARE HIGHLY MOTIVATED AND DISPLAY COMMITMENT TO OPERATIONAL SUCCESS. 141 PMFS PROVIDE SPECIALIZED PERSONNEL WHO ARE OTHERWISE HARD TO RECRUIT. 142 PMFS ARE EFFECTIVE AT COUNTERINSURGENCY SINCE THEY BRING IN LOCALS WHO UNDERSTAND CONDITIONS ON THE GROUND. 142 PMFS CAN BE MORE QUICKLY AND FLEXIBLY DEPLOYED THAN REGULAR FORCES. 143 PMFS ARE ABLE TO RESPOND TO INTERNATIONAL CRISES FASTER AND EASILY THAN STATES OR INTERNATIONAL BODIES. 143 TO MEET OUR GLOBAL COMMITMENTS WITHOUT RELYING ON PMFS WE WOULD NEED TO EXPAND THE MILITARY TO AN EXTENT THAT IS POLITICALLY UNREALISTIC. 144 THE OBAMA ADMINISTRATION HAS RECOGNIZED THAT PMFS ARE AN INELIMINABLE ELEMENT OF US FOREIGN POLICY. 145 PMFS ALLOW US TO SUSTAIN COMMITMENTS WHICH ARE OTHERWISE POLITICALLY UNFEASIBLE. 146 THE EXISTENCE OF PMFS IS UNALTERABLE; THE US NEEDS TO PARTICIPATE IN DEVELOPING A GLOBAL REGULATORY REGIME TO ENSURE THEY ACT AS A FORCE FOR GOOD. 147 PMF INTERVENTIONS HAVE STOPPED ATROCITIES THAT WESTERN GOVERNMENTS WERE UNWILLING TO PREVENT. 149 PMFS ARE MORE EFFECTIVE THAN INTERNATIONAL PEACEKEEPERS. 150
167 ANY POTENTIAL COST SAVINGS FROM PMFS ARE AMBIGUOUS AND DIFFICULT TO CALCULATE. CONTINUES TO DEMONSTRATE COMMITMENT TO STOPPING ABUSES. AND. 168 ACCOUNTABILITY MECHANISMS ARE KEY FOR PMFS. 159 PMFS CAN COMPLEMENT LONG-TERM UN PEACEKEEPING FORCES BY ACTING AS VANGUARD AND RAPID-REACTION FORCES. 170 PMFS ARE CLOSED TO PUBLIC SCRUTINY AND DIFFICULT TO HOLD ACCOUNTABLE. 175 PMF PERSONNEL HAVE NOT BEEN HELD ACCOUNTABLE FOR THEIR INVOLVEMENT IN ABUSES LIKE ABU GHRAIB. 151 PMFS ACT AS FORCE MULTIPLIERS. 160 PMFS PLAY AN ESSENTIAL ROLE IN PEACEKEEPING. 161 THE FAILURE OF THE INTERNATIONAL COMMUNITY TO RESPOND ADEQUATELY TO HUMANITARIAN CRISES CREATES A CASE PMFS.victorybriefs. 163 PMFS ARENʼT MERCENARIES. 169 PMFS ARE NOT ADEQUATELY REGULATED. 172 PRIVATE CONTRACTORS ARE HARDER TO HOLD LEGALLY ACCOUNTABLE THAN REGULAR SOLDIERS. 150 PMFS MORE EFFECITVE THAN TRADITIONAL UN PEACEKEEPING FORCES.10PF6-Wikileaks www. 171 THE DEMAND FOR ENORMOUS NUMBERS OF PMF CONTRACTORS HAS LED TO QUESTIONABLE HIRING PRACTICES AND POOR TRAINING. 152 UN PEACEKEEPING FORCES ARE INEPT AND INEFFECTIVE COMPARED TO PMFS— ANGOLA PROVES. 157 PMFS HIRED BY THIRD-PARTY ACTORS TO RESOLVE CIVIL CONFLICTS HAVE STRONG AND WELL-ALLIGNED PERFORMANCE INCENTIVES. 176 . 165 PMF PERSONNEL ARE UNRELIABLE. 173 ENLISTING CONTRACTORS INTO THE REGULAR MILITARY WOULD MAKE THEM MORE ACCOUNTABLE TO THE MILITARY CHAIN OF COMMAND. 164 NEGATIVE EVIDENCE 165 COORDINATION PROBLEMS LEAD TO PMFS AND MILITARY UNITS WORKING AT CORSS PURPOSES. 173 MULTIPLE SCOTUS DECISIONS HAVE MADE IT IMPOSSIBLE TO HOLD PMFS ACCOUNTABLE THROUGH REGULAR CHANNELS OF MILITARY JUSTICE. 156 PMFS ARE MORE EFFECTIVE SIGNALLERS IN PEACEKEEPING SITUATIONS. 166 PMFS INCREASE THE COST OF MILITARY OPERATIONS. 162 THE US HAS TAKEN STEPS TO MAKE PMFS MORE ACCOUNTABLE. 154 THE UN IS NOT SERIOUSLY AS COMMITTED TO PEACEKEEPING AS PMFS—ALLOWS ATROCITIES LIKE RWANDA TO OCCUR. 153 PMFS ARE FAR BETTER EQUIPPED THAN UN PEACEKEEPING FORCES.com Page 5 of 229 THE ABUSES COMMITTED BY PMFS ARE NO WORSE THAN THOSE COMMITTED BY UN PEACEKEEPERS. 174 THE AMBIGUOUS LEGAL STATUS OF PMFS CREATES BOTH RISKS FOR THEIR PERSONNEL. REDUCING CASUALTIES IN CIVIL WARS. ENGAGE IN SUBSTANTIAL ABUSES OF POWER INCLUDING THE SEX TRADE. 168 PMFS ARE COSTLY. WONʼT GO INTO DANGER VOLUNTARILY. 151 UN PEACEKEEPING FORCES ARE INEPT AND INEFFECTIVE COMPARED TO PMFS— RWANDA PROVES. ACCOUNTABILITY MECHANISMS ARE EASY TO CREATE CONTRACTUALLY. RESULTING IN HARM TO CIVILIANS AND US IMAGE. 166 PMFS HURT MILITARY INTEGRATION AND COORDINATION. SINCE THEY OPERATE IN ARENAS WHERE THE POTENTIAL FOR ABUSES IS INHERENT. UNDER THE CRITERIA ESTABLISHED IN THE GENEVA CONVENTION. 161 PMFS ARE MORE EFFECTIVE THAN UN PKOS—SIERRA LEONE PROVES. AND LACK OF ACCOUNTABILITY.
197 THE ALIEN TORT CLAIMS ACT IS NOT AN EFFECTIVE MEANS OF REGULATING PMC CONDUCT. HIDE THE COSTS OF WAR. 183 THE EXECUTIVE BRANCH HAS USED PMFS TO EVADE CONGRESSIONAL OVERSIGHT. 194 PMCS HAVE INAPPROPRIATE LOBBYING INFLUENCE. GIVING THEM DENIABILITY ON POLITICALLY RISKY OPERATIONS. 178 REPATRIATION OF CONTRACTORS FACING CRIMINAL ACCUSATIONS MAKES PROSECUTION AND CONVICTION DIFFICULT. 202 THE MEJA GIVES THE ABILITY TO CRIMINALLY PROSECUTE PMC PERSONNEL BUT IS RARELY USED. 203 . 184 PMFS LET THE US MILITARY CONTINUE TO ACT AS GLOBAL POLICEMAN DESPITE LACK OF PUBLIC SUPPORT FOR THAT ROLE. 190 PMCS UNDERMINE CONVENTIONAL FORCES BY COMPETING FOR EXPERT AND TALENTED PERSONNEL. MARKET INCENTIVES FAIL SINCE THEREʼS NO GUARANTEE THEYʼRE ACTUALLY MEETING THEIR CONTRACTUAL OBLIGATIONS. 188 PMCS ALLOW GOVERNMENTS TO GIVE UNOFFICIAL MILITARY SUPPORT TO PARTICULAR GROUPS WHILE MAINTAINING A GUISE OF NEUTRALITY. 200 THE ROLE OF PMCS HAS EXPANDED TO THE EXTENT THAT PMCS MAY NOW BE CLASSIFIED AS “COMBATANTS” RATHER THAN “CIVILIANS” UNDER THE LAWS OF WAR.” 192 PMCS DO NOT NECESSARILY HAVE THE SAME HIGH STANDARDS FOR ITS EMPLOYEES AS THE MILITARY DOES FOR ITS COMBAT FORCES. 193 PMCS ARE NOT AS ACCOUNTABLE AS REGULAR MILITARY FORCES. 187 PMF PERFORMANCE IS HARD TO MONITOR.victorybriefs. ARE LESS ACCOUNTABLE THAN REGULAR MILITARY PERSONNEL. AND ARE SEEN BY LOCAL POPULATIONS AS “HIRED GUNS. 185 PMFS ENCOURAGE UNILATERALISM. 186 PMFS MAKE THE USE OF MILITARY FORCE MORE POLITICALLY CONVENIENT. 191 PMCS UNDERMINE CONVENTIONAL MILITARY OPERATIONS BECAUSE THEY PROBLEMATIZE COORDINATION. 194 PMCS FACE TREMENDOUS RISK OF CASUALTIES IN COMBAT OPERATIONS. 189 THERE IS NO EVIDENCE THAT PMCS ARE ACTUALLY COST EFFECTIVE RELATIVE TO CONVENTIONAL FORCES. 180 CONTRACTORS ARE LESS ACCOUNTABLE FOR SEX CRIMES THAN MILITARY MEMBERS. 187 PMFS UNDERMINE THE STATEʼS MONOPOLY ON VIOLENCE. 182 PMFS ENDANGER THE TRANSPARENCY OF THE POLITICAL PROCESS AND THE CHARACTER OF MILITARY SERVICE.10PF6-Wikileaks www. 177 US-EMPLOYED MILITARY CONTRACTORS HAVE BEEN HEAVILY INVOLVED IN SEXTRAFFICKING. 183 PMFS ACT AS FOREIGN POLICY PROXIES FOR STATES. 180 PMFS ALLOW GOVERNMENTS TO AVOID RESPONSIBILITY FOR THE POLICIES THEY PURSUE. 196 PMCS NEED BETTER REGULATION OF THEIR HIRING PROCESS. THIS ALLOWS THE GOVERNMENT TO DISCLAIM SOME OF THE ACTUAL COST OF MILITARY OPERATIONS.com Page 6 of 229 THE US REGULATORY REGIME FOR PMFS IS INADEQUATE AND FULL OF LOOPHOLES. RELIANCE ON PMFS ENCOURAGES UNIALTERALISM AND BURDENS THE US ECONOMY. 201 THE AUTHORITY OF BATTLEFIELD COMMANDERS IS INSUFFICIENT TO REGULATE PMCS. 181 PMFS HAVE INCENTIVES TO PROVOKE AND PROLONG CONFLICT. 195 GLOBAL REGULATION OF PMCS WOULD BE IDEAL. BUT THIS IS UNLIKELY TO SUCCEED IN AN ACCEPTABLE TIMEFRAME. 199 THE USE OF PMCS IN IRAQ IS THE LARGEST AND MOST EXPANSIVE IN AMERICAN HISTORY. AND UNDERMINE THE PERCEPTUAL LEGITIMACY OF GOVERNMENT. 181 RELIANCE ON PMFS WEAKENS DEMOCRATIC CHECKS ON GOVERNMENT. 198 MILITARY USE OF PMCS IN FUNCTIONS THAT IMPLICATE NATIONAL SECURITY IS INAPPROPRIATE. 197 THE MILITARY EXTRATERRITORIAL JURISDICTION ACT (MEJA) ALLOWS SOME REGULATION BUT LEAVES A MAJOR LOOPHOLE.
220 INTERNATIONAL LEGAL NORMS GENERALLY PROHIBIT STATES FROM HIRING MERCENARIES TO ENGAGE IN ARMED ATTACKS AGAINST OTHER STATES. 214 INTERNATIONAL RELATIONS SCHOLARS CRITICIZE PMCS BECAUSE THEY UNDERMINE THE STATE MONOPOLY ON VIOLENCE IN THE INTERNATIONAL ARENA. 210 PMCS UNDERMINE THE ABILITY TO WAGE COUNTERINSURGENCY BECAUSE FIRMS DO NOT ALWAYS SHARE THE SAME OBJECTIVES AS THE GOVERNMENT. 225 UNDER A DEONTOLOGICAL FRAMEWORK. 224 THE US CANNOT ESCAPE RESPONSIBILITY FOR THE ACTIONS OF PMCS.victorybriefs. 222 THE USE OF PMCS MAKES IT EASIER TO BYPASS THE SECURITY COUNSEL AND TRADITIONAL STATE RESTRICTIONS ON THE USE OF MILITARY FORCE. 212 PMCS BLUR THE LINE BETWEEN AND CIVILIAN AND MILITARY OPERATIVES. 226 THE USE OF PMCS REDUCES DEMOCRATIC ACCOUNTABILITY IN HUMANITARIAN INTERVENTIONS. 205 CONGRESS HAS FAILED TO EXPAND THE MEJA TO ENSURE CRIMINAL JURISDICTION OVER PMC EMPLOYEES.com Page 7 of 229 THE UNIFORM CODE OF MILITARY JUSTICE IS NOT AN EFFECTIVE MEANS OF REGULATING PMCS. 221 VERY FEW STATES ARE PARTIES TO THE UN MERCENARY CONVENTION 222 THE LACK OF A CLEAR REPORTING STRUCTURE UNDERMINES PMC ACCOUNTABILITY. 206 EFFORTS AT INTERAGENCY COORDINATION TO REGULATE PMCS NEED TO BE STRENGTHENED TO PUT THEM UNDER ONE CHAIN OF COMMAND. 216 THE SPECIAL MARITIME AND TERRITORIAL JURISDICTION STATUTE PROVIDES A VERY WEAK CHECK AGAINST PMC ABUSE. 212 PMCS MASK THE TRUE COST OF WAR. 213 OVER-RELIANCE ON PMCS PREVENTS THE MILITARY FROM PERFORMING VITAL FUNCTIONS IN THE EVENT THAT PRIVATE FIRMS FAIL. 227 USE OF PMCS IN HUMANITARIAN INTERVENTION UNDERMINES DEMOCRATIC LEGITIMACY BECAUSE WE HAVE LESS CONTROL OVER PMCS THAN WE DO OVER CONVENTIONAL FORCES. 219 THE ALIEN TORT CLAIMS ACT IS A VERY WEAK CHECK ON PMC ABUSES. 215 THERE WAS VERY LITTLE LEGAL OVERSIGHT OF PMCS IN IRAQ. 208 RARE PROSECUTIONS OF PMC MISCONDUCT LEAD MANY TO THINK THEY ARE ABOVE THE LAW. 213 CONSTITUTIONAL CRITICS WORRY THAT PMCS UNDERMINE GOVERNMENT TRANSPARENCY AND ACCOUNTABILITY. 228 PMCS HAVE AN INCENTIVE TO BE INEFFECTIVE AT HUMANITARIAN INTERVENTIONS. 204 USAID DOES NOT EFFECTIVELY REGULATE THE PMCS WHICH PROVIDE SECURITY FOR ITS CONTRACTORS.10PF6-Wikileaks www. 218 EXTENSIONS OF THE UNIFORM CODE OF MILITARY JUSTICE ARE A CONSTITUTIONALLY SUSPECT WAY OF REGULATING PMCS. 207 EARLIER ATTEMPTS TO REGULATE PMC HIRING AND TRAINING DO NOT GO FAR ENOUGH. 209 THE UNITED STATES NEEDS TO IMPROVE ITS RESOURCES AVAILABLE FOR CRIMINAL PROSECUTION OF PMC PERSONNEL. USING PMCS FOR HUMANITARIAN INTERVENTION IS MORALLY PROBLEMATIC BECAUSE OF THE PROFIT-MOTIVE. 229 . 223 BUREAUCRACY UNDERMINES THE TRANSPARENCY THE PMC CONTRACTING PROCESS AND GIVES PLAUSIBLE DENIABILITY FOR PMC ABUSES.
in any instance.victorybriefs. Objecting to PMFs on the basis that they donʼt satisfy the categorical imperative doesnʼt seem to me to engender the type of relevant education that is sought by this resolution – which is to say. an affirmative who advocated specifically for the use of PMFs by the USG in Pakistan would seem to me to be topical. that if the affirmative can. most warfare occurred between mercenaries hired or sent to satisfy some feudal oath by warring parties. a discussion of substance from which debaters can expect a meaningful education must be connected to the real world policies that surround PMFs. then they have met their burden) and in many respects.10PF6-Wikileaks www. These modern firms are largely entirely different than the roving band of ruffians bought by territorial rulers to enforce their edicts – they come with significantly more training. what role should private corporations . and lack the stability and predictability of more conventional forces. given that an affirmation of that statement would necessarily be an affirmation of the broader resolution. was won in warfare that occurred largely against Hessian mercenaries – a sort of precursor to the modern private military firms. It is an interesting to note that the birth of the United States. but I think this topic encourages that type of debate. I am largely opposed to the idea that the affirmative can advocate for one particular instance of the use of any feature of a resolution in a particular scenario and win the resolution on those grounds or that ground. the subject of the resolution.com Page 8 of 229 Topic Analysis by Ryan Hamilton Overview The history of private military firms is as long as warfare itself – prior to Napoleonʼs widespread use of conscription. prove that PMFs ought to be used abroad. However. a higher degree of experience. suffer virtually no civilian oversight. (for instance. they cost an incredible amount of money. and the ability to accomplish precision-necessary missions with a higher likelihood of success than a standard volunteer military unit. This brief hopes to go over both affirmative and negative framework ideas and give a primer on arguments that are likely to dominate the debates on this topic.
old Thomist canards of just war theory) without linking into some real world impacts. Promoting a US . and not that the United States would be ʻjustʼ to use PMFs. Certainly one can draw on principled philosophical reasons for the outright rejection of PMFs because of the violation of this side constraint or that. overseas use of PMFs. a convincing decision calculus by which others might come to understand using PMFs as a good policy. but I donʼt think these are likely to be the most compelling impact scenarios. in this case. then.victorybriefs.10PF6-Wikileaks www. Framework I think a good framework for the affirmative might be born out of maintenance of hegemony – so much of what PMFs do is alleviate the stress on the regular military and contribute to the USʼs ability to accomplish military objectives by adding competencies and capabilities that are otherwise outside of the regular militaryʼs scope.com Page 9 of 229 play in the warfaring operations of a republic that has a set of expectations for how that warfare is conducted. I donʼt think that the word justified implies a value of justice – because here it is meant to relate to some kind of rationale. There might be an argument to be made saying that affirming satisfies notions of justice under social contract theory. Criterions. and impact scenarios for the alternative to US hegemony come easy. I also think that the topic literature that debaters are likely to find will be so heavily biased toward the former that it would be difficult to construct a thoughtful position (without dragging out the tired. but I think the more convincing positions will engage these entities on the basis of how they perform in the real world as opposed to the theoretical. The links back to justification are easy. should set out to delineate what distinguishes good military policy from bad military policy in the United States. too. likely to maximize the objectives of the military? Is it consistent with the values citizens of the US are likely to have of their military? Is it efficient? Affirmative I. These might combine different ethics of evaluation: is the policy.
given the highly trained status of most high level combat contractors. or a multipolar world with regional powers like Iran. II. and other oppressive states is pretty compelling. and PMFs uniquely enable the United States to function as the hegemon by adding to the overall functionality of the military. etc.victorybriefs. This would seem to justify their use on more humanist terms than hegemony. and even if affirmatives concede impacts about efficacy. or some form of Russo-Sino-petrocratic alliance. Particular firms – KBR. as I noted above. stabilize the local democratic regime. Arguments I think one of the first things that an affirmative can do to strengthen their position is point out that there are private military firms that donʼt specialize in combat.10PF6-Wikileaks www. for instance – are able to accomplish support operations which can only be described as martial with more efficiency and at a significantly reduced cost than the government. that suit more particular instantiations of the resolution abound: PMFs are justified for use in x country to fight terrorism.com Page 10 of 229 dominated world order in which the alternatives are China. prevent abuses in places like Darfur. their ability to conduct operations without causing international incidents or stirring up the local anti-American tribe is a major bonus. but rather combat operations that act in support of the firepower deployed by the government. While I think basing an entire case position forwarding the argument that the USG is justified . Frameworks. Those less prone to world domination might see frameworks of value in arguments that promote a quick end to conflict – arguments below explore the unique flexibility that PMFs possess in relation to the regular military that allow them to adapt to situations and incorporate various factors that are likely to bring a speedy end to conflict that involve fewer casualties and more precision-based operations. – there are a ton of arguments to be made about the ability of PMFs to operate with less scrutiny than the regular army. Venezuela. and probably give affirmatives good opportunities to link into negative criterions that talk about how they commit untold abuses. secure a safe transition of the planned country in Southern Sudan.
maybe itʼs not unit that could easily be replaced by a more efficient and effective private competitor that is likely to have better performance. That leads me to one of the first affirmative arguments – it is impractical and wasteful for the government to maintain full time volunteer units that specialize in technical aspects of warfare when the operation could be performed by a firm that specializes in both peaceful and combat related technologies. that the organizations that ought to be available to the US government while conducting military operations abroad provide crucial intelligence (from satellites. Moreover. wonʼt be as pressed to innovate or develop new methods of producing high resolution detailed topographical maps. I think that it is easier to affirm the resolution holistically when judges recognize that the firms involved arenʼt always blowing away swarthy citizens of some far off foreign country. crucial logistics (specialized food production and delivery. Another argument is that PMFs allow the US government to perform crucial. military units that arenʼt consistently involved in their trade wonʼt develop or maintain their skills at the rate at which private competitors will. A unit dedicated to some type of technology – gathering data that produces high resolution. The unit sponsored by the government will likely be weighed down by rules and regulations. but rather providing necessary and crucial support operations that are instrumental in advancing whatever military objective exists.com Page 11 of 229 in using noncombat-oriented PMFs will open one up to a true indictment on theory. detailed topographical maps. anyway. letʼs say – that isnʼt consistently deployed will not be as sharp as a private contractor which is in possession of a team that is at work during both war and peacetime. strategic operations without risking significant diplomatic capital that would result from the . say).10PF6-Wikileaks www. maybe) and technology assistance.victorybriefs. and because theyʼre not seeking to develop this unit into an income. That sort of flexibility is what gives PMFs a major advantage. The financial outlays for permanent regular military units are astronomical when considered over time (as discussed later). There main impact here is efficiency: the taxpayer is in the line for maintaining a maybe itʼs used.
1 Moreover.victorybriefs.html .com/2011/01/27/us/politics/27pentagon. and South Korea. or a criminal justice level.com Page 12 of 229 deployment of conventional military units. but some of the largest disputes between Japan.10PF6-Wikileaks www. have come about after troops garrisoned in those two countries have repeatedly broken the law – hardly a year passes in ROK and Japan when a GI raping a local girl doesnʼt cause diplomatic tension and threatens the cooperation between governments. Secretary Gates has announced that he seeks to find $78 billion in savings from the military3. the firms donʼt have to establish a military base that would inflame anti-American sentiment. particularly with the election of a GOP congress that has pledged to reduce the next fiscal yearʼs deficit by 500 billion – roughly half of the projected deficit2. President Obama is under increasing pressure to reduce the budget deficit.com/opinion/columnists/ab-stoddard/143117-battle-begins-on-gop-cuts 3 http://www. these operations avoid significant questions of a diplomatic nature – as private corporations. respectively. This allows the United States to pursue its military objectives without being hampered by concerns external to those objectives and avoid significant political feedback from the governments in which the objectives are meant to occur.nytimes. Affirmatives donʼt lose the argument on finance. This can be demonstrated in two ways: in Colombia the United States finances an operation that hires a private firm that conducts reconnaissance missions and counter insurgency operations that the South American political community would likely reject if they were conducted by US government regulars. the US is able to avoid the image problems with which it becomes associated after one of its uniformed personnel is involved in a crime. PMFs uniquely qualify as the solution 1 2 http://colombiajournal. An affirmative case position might argue that given these heightened budget concerns. either – PMFs have allowed the government to cut costs while at the same time alleviating overstretch of the regular military. nor is the US government on the hook if an individual local contractor breaks the law. and the United States.htm http://thehill. While the impact of the crime might be the same on an individual level.org/colombia19. This last item might seem like a minor concern.
and maintain the ability to project US hard power while at the same time satisfying the budget realities at home.html 6 http://www. Some highly skilled contractors working in dangerous situations can make upwards of 1.com Page 13 of 229 that satisfies both the need to continue anti-terror operations.000 dollars a day. survivorsʼ benefits. they accounted for just 20% of total budget for the conflict.nytimes. There doesnʼt exist a complex and vast bureaucracy that requires literally decades taxpayer support to an individual soldier. estimates of the dollar amount it takes to keep 1 US soldier in Afghanistan range from 390. especially when one considers what the USG is responsible for paying to the average soldier over the course of his or her life. the countryʼs largest bureaucracy.com/2009/11/15/us/politics/15cost. an increase from $75 billion in just 2 years4. while structuring in the payment money that turns a healthy profit. the US government offers enlistment bonuses. The CBOʼs 2008 study of the then five year old War in Iraq concluded that even though private contractors outnumbered regular troops in the region by approximately 40. and a whole host of other incentives that cost huge sums of money. More than $125 billion is allocated to the Department of Veteransʼ Affairs.6 Excluding outlays in the military budget for increasing stability and fostering a civil society. Roughly half of that budget is directed toward care for veterans of the Iraq and Afghanistan conflicts. but thatʼs it.pdf . Outlays for regulars over time surely cost more than those for PMFs. the account is settled. combat operations could be 4 5 http://www. Naturally the firm deploying the same highly skilled contractor will bill for transportation and logistics.victorybriefs.va.gov/budget/docs/summary/Fy2011VaBudgetRolloutPresentation. varying levels of training. tuition pay back schemes.000 to 1 million dollars.10PF6-Wikileaks www.cbo.gov/ftpdocs/96xx/doc9688/08-12-IraqContractors. Even if we cancel projected liabilities resulting from the regular army. promote democracy and peace in the Middle East. Thatʼs the end of the line for government liabilities – once the payment has been made to the firm.5 PMF financing is structured in a different way – the costs arenʼt backloaded in the same fashion that they are for a typical GI.pdf http://www. In addition to after care to which all regulars are entitled.000.
Islamic Republic similar to the one in place in Iran now. The impacts are here: troop reductions help allay the local impression that the United States is an occupying force that is largely reported to fuel the cause of the insurgency and terrorists worldwide. the use of PMFs alleviate concerns of overextending combat forces in the regular army while at the same time giving the administration greater flexibility in deploying human capital that doesnʼt include conscription. the support operations. The same .com Page 14 of 229 handled in Iraq by exclusively PMFs. A reduction in uniformed. assuming that the aforementioned protected budgetary concerns made up for 20% of spending (they do not) by 40%. largely made up of logistics. It would also take the wind out of the sails of Iranian malcontents who are reported to be working in the country to subvert the political freedoms in favor of a more radicalized. notably Muqtada Al-Sadr.10PF6-Wikileaks www. especially the formerly empowered Sunnis. PMFs allow the US government to capitalize on foreign expertise in a way for which the conventional military does not allow. radically reduce the number of US troops committed to the operation and cut costs. Secondly. Western military presence in Iraq has been used by indigenous rebel rousers. where we could double the number of contractors. Additionally. can certainly be farmed out to different corporations with existing global networks that can accomplish the task at a lower cost and without putting pressure on the government to coercively draft its male population into servitude. hypothetically. I have heard a report that the “tooth to tail” ratio in Vietnam was 10 supporting troops for every 1 combat troop – this ratio can be improved by using PMFs to reduce stress on uniformed troops so that more regulars can be dedicated to combat missions.victorybriefs. to justify the maintenance of local militias that arenʼt answerable to the civilian authority in Iraq and have in the past been used to visit violence on minority communities within Baghdad. Even if one concedes that all combat operations should be performed by the regular uniformed service. while fomenting civil war. regular troops would create the impression of a more independent Iraq while specialized PMF contractors left behind continue to pursue military goals and neutralize threats to a democratic and stable Iraq.
disaffected natives. The US government and military has full control over the extent of their actions and. and (2) deploy the human capital as efficiently as a private contractor. More to the point. as a corollary. These individuals undoubtedly have expertise for which the US military has a need. it is hard to imagine any kind of official apparatus being able to create an institution within regular government forces that can (1) attract the type of foreign expertise in the same way that a corporation can. and less than 40% of contractors were citizens of the country in which they worked. or feel that they jeopardize the greater mission. Jordanians. they have tons of recourse to take against firms and individuals who commit crimes or atrocities. if dissatisfied. Kuwaitis (who had first hand experience fighting the Iraqi army). Guides.victorybriefs. While some foreign citizens might be permitted to enlist in the regular army. soldiers from places like Colombia and the Philippines (a country which itself has a domestic Islamic insurgency) have experience in fighting local rebels that would be certainly be of assistance in Iraqi and Afghani counter-insurgency operations. more people would be likely to speed. Finally. translators. and other regional neighbors hired by firms for which the traditional military structure has no analog. and even less if you exclude the number of Iraqis working in Iraq. They are still covered by laws . The problem with PMFs and the many examples of their brutality and lack of restraint in combat overseas is a result from poor regulation on behalf of the military and the civil authorities in the United States.10PF6-Wikileaks www.com Page 15 of 229 report found that only 20% of PMF contractors were US citizens. If police in a given municipality stopped writing speeding tickets. If at any point the civilian-controlled military and court system become tired of these antics. former soldiers in regional militaries and a number of other groups who might have common cause with the US military all possess literal treasures of expertise that assists in achieving military objectives. can simply terminate the existing contract. the idea that there is something intrinsic about PMFs that engenders them toward rape and pillage is silly.
I think the strongest negative arguments will link back to accountability. Negative I. particularly when there are laws in place that give the US jurisdiction over the prosecution of offenders in the employee of PMFs. In short. but it is not reasonable to fiat the radical change of the nature of PMFs into an institution unrecognizable from what it is today at the time the topic was written.org/wgbh/pages/frontline/shows/warriors/faqs/ .com Page 16 of 229 which allow for their prosecution in criminal courts. but rather a criticism of domestic leadership that should take a stronger position against wartime abuses. Arguments that show why civilian control of armed forces is subverted by the use of PMFs are not hard to articulate.10PF6-Wikileaks www. a lot of these firms have overseas headquarters with governments more willing to share in PMFsʼ profits than they are to divulge their secrets. But they should also guard against affirmative abuse – one canʼt fiat that PMFs should be transformed through legislation by Congress into firms that arenʼt “private” – and more to the point. the constitution provides for this as a reality of US law. itʼs reasonable for an affirmative to argue that Congress change the way that it supervises PMFS.victorybriefs.7 The fact that the current administration or past administrations have made poor decisions about giving immunity to thugs that operate with PMFs isnʼt an indictment of the flexibility and efficiency with which they operate by their nature. This standard is easy to weigh against impacts like efficiency and 7 http://www. The military as an institution should be accountable to the civilian authority of the land – whether this is true as a philosophical claim or not doesnʼt matter. Framework One of the biggest obstacles to negative argumentation is finding arguments that deal with the nature of PMFs and not the faults that exist in the current policy regarding their use.pbs. The fact that the United States doesnʼt properly regulate or supervise the deployment of these firms abroad doesnʼt seem like a very convincing argument for me to negate.
Insofar as this is true.html . II. itʼs difficult to make the case that PMFs arenʼt a bargain for the taxpayer. have to answer to a higher authority when they do wonʼt be hard to warrant given the huge amount of topic literature on the abuses of PMFs in Iraq and Afghanistan. The standard here is obvious: minimizing human rightsʼ violations. The public can scrutinize its accounts.com/wp-dyn/content/article/2007/09/30/AR2007093001352. Arguments PMFs have very little accountability. and have many more layers of accountability that have been added over the years as the nature of warfare and decency has 8 http://www. they operate under the uniformed code of military justice. this doesnʼt account for many factors that cost the US government resources but donʼt ultimately end up in the pocket of the soldier on the ground. If there is anything to be said about the reliability of the US military as an institution. While it is true that when you account for pay scale alone. is difficult for affirmatives to link into. I think that what might jump off the page at negatives – arguments about the cost of the services that PMFs provide – isnʼt going to be easy to warrant (see the affirmative section). It is open and transparent to the extent that it is practical and to the extent that the transparency enables it to accomplish its objectives. negatives can garner offense that the same nature that makes them opaque and hostile to external control make PMFs more prone to human rights violations. Arguments that show that US regulars commit fewer atrocities. central characteristic that lends itself toward reliability is that the military has been subordinated to civilian institutions. or at the very least. This. Additionally. again.10PF6-Wikileaks www. I think it is probably the strongest case the negative has considering the uniqueness of ground. call their representative to demand a General be commissioned or demoted. PMF contractors make significantly more than a similarly deployed US soldier8.com Page 17 of 229 increased competency and difficult for affirmatives to link into with standard argumentation.washingtonpost. one of. if not the.victorybriefs.
The fact that they have a nearly universal history of colluding against justice by hiding away their employees who break the law should provide strong ground for policy makers to reject an official association with the US military. and even more on the soldiers that PMFs are likely to find the most desirable. The P – it stands for private. The practice in Iraq after an individual in the employee of a PMF became implicated in the collateral murder of some poor native was to whisk that person out of the country as quickly as possible – and if there were any suspicions that the same individual might be indicted under US law.victorybriefs.9 Adding to that. The public. what sort of corporation it has been classified as. theyʼd just take them to a country with which the US government has no extradition treaty. theyʼre given immunity largely without the consent of the very people whoʼs lives PMFs control and risk in the course of their operations. some place like Iceland. PMFs cost too much money. have no ability to scrutinize their accounts or financial dealings. PMFs create a perverse incentive for trained regulars. This is a good argument to beat back the cost arguments that affirmatives might employ – the United States government spends a significant amount of money training soldiers. PMFs are not even analogous. A study by the House Oversight Committee found that average Blackwater contract cost approximately six times the amount per year of a similarly equipped US soldier.com Page 18 of 229 changed.nytimes. This means that depending on the location of the countryʼs headquarters. The British Army has such a problem with attrition of this sort that they were forced to give a year of leave to their soldiersʼ so that they could go collect the http://thelede. More to the point. and various other factors. should they wish. knowing that their salary can be increased by more than ten times.com/2007/10/01/the-price-of-an-iraqi-life-a-blackwater-guard-and-the-crashhappy-convoy/ 9 . when theyʼre employed abroad.blogs.10PF6-Wikileaks www. particularly if the option of using them in conjunction with the military or as a substitute for the military is on the table. The soldiers then leave the regular army as soon as that becomes an option to join PMFs as security contractors.
Does this make them terrorists? I donʼt know. Moreover. There is some topic literature that discusses how PMFs interact with this Convention.10PF6-Wikileaks www. PMF contractors who engage in combat.com Page 19 of 229 cash benefits while still returning to the regular army. they donʼt follow the traditional military command structure. itʼs a CEO? . This creates a brain drain the military which negatively effects government efficacy and the ability for regular forces to wage war. they probably wouldnʼt fight for the insurgency if they were offering competitive prices. the UN Convention on Mercenaries from 2001 makes it an international offense to participate in warfare of an international character as a person who is motivated primarily by private gain – eg. Nonetheless. few people would argue that hiring the local thugs farmed out by a warlord would be an unsavory practice of which few would approve. One of the primary arguments forwarded by the Bush Administration is that insurgents captured on the battlefield arenʼt entitled to the judicial protections set forward by international law because they donʼt meet proscribed legal criteria for protection – they donʼt wear a uniform.victorybriefs. Why does it become alright when instead of warlord profiting. largely because it was meant to target more traditional mercenaries that fight in Africa and PMF contractors arenʼt entirely in that mold – for instance. they regularly disregard civilian lives during fights… sounds pretty familiar to me. PMFs exist outside of the uniform code of military justice.
itʼs that it should be a fun one to research—the history of private military firms. But itʼs the affirmative research (in my opinion. because for that all private military firms are capable of really. itʼs equally true that.com Page 20 of 229 TOPIC ANALYSIS BY CHRISTIAN TARSNEY If thereʼs one thing to be said about this topic. if nothing else.victorybriefs.W. Definitions and framework issues .10PF6-Wikileaks www. youʼll miss out in terms of potential case positions especially. makes for good reading. but for this topic especially. war crimes) committed by companies like Blackwater which have been widely reported and have contributed more than anything else to the public perception of PMFs certainly represent an important topic area. and if military history. their various advantages and pitfalls in various circumstances). theyʼll make great reads apart from their cardable application to the topic. I end up saying this in every topic analysis I write. and the missteps (or. under the right circumstances. I would imagine that most of you are at least vaguely familiar with the less pleasant aspects of security contracting from the media coverage of events in Afghanistan. Singer. mind-blowingly effective at what they do. I. the functions they perform. And given the diversity of topic areas (the kinds of PMFs. they can be really. equally implausible. and with only a handful of personnel completely turning around or ending those conflicts in a matter of days read in many ways like action movie scripts—equally dramatic. Pick up a book like “Licensed to Kill” by Robert Young Pelton or “Corporate Warriors” by P. arguably.or decades-long civil conflicts. youʼll be losing out if you donʼt do your background reading. anyway) thatʼs going to be the most interesting. and equally action-packed. technology and tactics are of any interest to you. seriously screwing up. The stories from the 90ʼs about companies like Executive Outcomes entering countries in the midst of years.
it seems like debaters are for the most part abandoning any attempts to resolve these questions textually. a single PMF. peacekeeping operations. most. etc succeed in “affirming the resolution on balance”? No amount of definitional debate will resolve that question.” and along related lines. by default. if youʼre debating in front of judges who donʼt want to see the issue framed or resolved in that way. etc? To tackle this second question first: recently. and/or a single service. so depending on where youʼre debating and who your judges will be. there may be nothing more to say about it than that—this topic provides plenty of room for parametricized affirmatives. 10 . In these situations.10PF6-Wikileaks www. itʼs worth thinking a little bit about the text. and as always negatives will have the option of running parametrics theory if they so choose. the framework debate may be almost as generic: for your typical judges at an NFL or CFL district tournament.g. what kinds of security contractors count as “private military firms. attempting to limit the debate to a single military operation. “parametrics” refer to positions which add restrictive parameters to the resolution. what kinds of activities count as “pursuing military objectives”? Second. two or more. In case a debate about the meaning of the actual text of the resolution does break out. and are instead simply folding it into generic “parametrics vs. The obvious ambiguity of this notion gives rise to a lot of gray areas in the context of this resolution—do affirmative that advocate (or generate offense from) the use of PMFs for specific purposes like logistical support of army units. whole-res”10 debates. the appeal to an “onbalance” interpretation of the resolution is often all that needs to happen. though.com Page 21 of 229 I see only two major interpretational issues presented by the topic: First. any objective. but at the very least the appeal to an “on-balance” interpretation will succeed in ruling out the more definitely parametricized sorts of positions.victorybriefs. there is the problem of missing quantifiers endemic to almost all LD resolutions—does “military objectives” mean all kinds of military objectives. On the other hand. e. a tacit sense of universal If this rhetoric is unfamiliar to you. you may have to operate differently. My own sense is that the possessive pronoun carries.
like the peacekeeping position. though. and perceived as sufficiently core ground. are they the United Statesʼ military objectives. are likely to be common enough. however. but not necessarily in all situations simultaneously. they are often performed by companies which should unequivocally be considered “private military firms. building barracks) are topical. their potential impact on the domestic political process.victorybriefs. the minimum claim which the affirmative must defend. and those debates will probably just have to play out. Itʼs also important to note. that I would predict most judges will be willing to presume by default in favor of their topicality. even if theyʼre somebody elseʼs? Again. However. but itʼs not a hard one to win. . I donʼt think thereʼs a clear right answer. that the word “justified” suggests that the affirmative doesnʼt have to defend the actual use of PMFs in all military contexts. but thereʼs probably not any fact of the matter about it.” Part of the question is whether functions like logistical support (moving supplies. The more interesting question is whether “to pursue its military objectives” limits the kinds of offense that the aff can claim—for instance.10PF6-Wikileaks www. the effects of their use on the international image of the US. and so on. some of the affirmative positions which are brought into question thereby. Affirmatives planning to rely heavily on arguments about these sorts of support functions should be prepared for that debate.com Page 22 of 229 quantification. This is potentially relevant to any arguments about the cost of PMFs. to affirm “the whole resolution. especially if they donʼt constitute the entirety of the AC position.” and they do contribute to the pursuit of military objectives. are peacekeeping or humanitarian assistance “military objectives”? And if the United States has not already deployed military forces in pursuit of those objectives. but merely the justifiability of their use—in other words. Returning. to the first question: There are certainly topicality debates to be had about the limits on “private military firms” and “military objectives. but this is the less important question—whether or not these are inherently military functions.” is that the United States is justified in employing PMFs in any given situation.
10PF6-Wikileaks www. And they are less encumbered by politically imposed constraints that their counterparts in the regular military service branches. describing first the content of the argument and second its virtues and vices from a strategic standpoint. I would encourage you to go with “yes”)? But in general. does “using” mean “hiring” (for the sake of clarity and avoiding unnecessary topicality debates.. Iʼll outline what I think are a few of the most interesting and compelling aff arguments. and just debate the heck out of those arguments. who have sought out better compensation for their abilities in the private sector (i. and given where youʼre likely to be debating it. since the continuation of their contracts as well as their future employment prospects depend on their performance. A high percentage of PMF personnel are veterans of elite military units. the resolution is relatively unambiguous.com Page 23 of 229 There are a few other framework questions out there—among others. but needless to say. Military efficacy PMFs tend to provide extremely effective fighting forces (or security forces) on a per capita basis. because they pay a premium to get the best personnel and provide them with the best equipment and training. Affirming Letʼs get right into arguments. rather than trying for anything too tricky. 1. PMFs and the contractors they employ are also highly motivated. . I wonʼt try to get too deeply into responses and frontlines. I would suggest that any argument discussed here should be fairly high on your blocking list. contrary to the claim that they are simply being vacuumed out of the military by PMFs.victorybriefs. II. Iʼd encourage you to stick with the plethora of stock arguments that obviously and uncontroversially affirm or negate.e. many of them would likely have otherwise simply taken other privatesector jobs).
Specialization and logistical support Another argument with the same kind of impacts—PMFs can perform particular. and domestic political ramifications of using PMFs to which efficacy arguments have little built-in defense. the more offense you can generate. on the other hand. and that number can only be increased through the lengthy recruitment and training process. or personal protection— better than the regular military. PMFs. marines and so forth have only so many troops under arms at any given time. Flexibility/surge capacity In the context of Iraq and Afghanistan particularly. the story is the same as with the efficacy arguments—make sure to find a terminal impact (or two). The US army.victorybriefs. and for efficiently filling gaps in the militaryʼs operational capacity.com Page 24 of 229 Turning these arguments into offensive reasons to affirm requires either an account of “justification” that renders efficacy a sufficient standard. 2. the better prepared youʼll be to weigh against arguments about human rights abuses. and allows you to generate some fairly straightforward. or an argument that the military objectives of the United States represent generally desirable ends. lack of accountability. 3. In addition. concrete offensive scenarios. construction. because they focus on being very good at those . From a strategic standpoint.10PF6-Wikileaks www. like logistics. and perhaps also to have a pool of contractors already at the ready if they are performing work for multiple clients. one of the selling points on PMFs has been their capacity for rapid deployment. to justify affirmation. specialized tasks. represent a ready reserve capacity. because of their ability to adjust quickly to changes in demand (by hiring new personnel at whatever rate is required to scare them up in adequate numbers). but donʼt overlook it and assume that the efficacy of PMFs is enough. The latter is the easier route to go. and be prepared to weigh against NC link stories that this argument wonʼt say much about. hire already-trained personnel from both local and international labor pools. prima facie.
it just doesnʼt generate a ton of offense intuitively. thereʼs an intuitive logic to finding private contractors who can do one specific thing very well and turning that one task over to them. Rather than making the same group of GIs accomplish everything that needs doing around an army base.10PF6-Wikileaks www. Among other things. inter alia). and with less of a political struggle. limited military capacities or budgetary constraints will not support an American military intervention (e. strong inherency (Western governments and the United Nations have demonstrated a complete lack of will to do anything about these crises. read up on it. The position is simple: Where public opinion.victorybriefs. and regional organizations like the African Union have usually proved ineffective). in Darfur). the United States should instead contract out the job to PMFs who can get the job done with fewer personnel. For another thing. youʼre inviting topicality debates since itʼs not clear that a firm performing purely logistical functions would need to be (or would get any particular advantage from being) a military firm in any remotely strict sense of the term. and killing lots of people.g. and there are a lot of answers to it in the literature. Iʼm not wildly enthusiastic about it from a debate standpoint. in countries with weak governments or engaged in fighting civil wars). 4.com Page 25 of 229 particular tasks and hire personnel specifically trained in and suited for those jobs. as a way to draw the neg into reading a bunch of innocuous defense. Humanitarian missions/PKOs I like this argument a lot—thereʼs a clear harms scenario (lots of humanitarian disasters going on all the time. for less money. and empirically demonstrated solvency (Executive Outcomes in Sierra Leone and Angola. Thereʼs not much to say about this argument other than. from KP to mine-clearing. and watch out for alternate-actor counterplans. because there are a lot of actors out . While this argument is certainly prevalent in the literature. but donʼt expect it to do too much work for you. Toss it in the mix in an AC if you like.
content first. at least for those with the kind of qualifications that would get them hired by a PMF. a draft was enormously unrealistic from a political standpoint. Quality of work . In the past. was fairly popular at camp: Without PMFs to eke out our limited military forces. 5. but the hiring (and hence the stipulation of contractual terms. though. and provision of oversight) could also be done by an international organization or even a private individual.com Page 26 of 229 there who could hire PMFs to engage in this kind of intervention. straightforward way to generate substantial and fairly plausible impacts. itʼs typically been the governments in question. Iʼd be shocked if you can find any credible author saying anything recent about the possibility of a draft. With preparation on that debate. if PMFs attract the additional personnel we would be to forestall a draft because of their better pay and benefits. but those advantages ought to be developed somewhere in the AC. for whatever reason. why we couldnʼt just avoid a draft by…increasing pay and benefits. other side—a few of the more interesting arguments. the rebel groups or an ousted former leader). this position is a nice. weʼll be forced to re-institute the draft. with all the badness that entails. 1. and now with our forces largely drawn down in Iraq and a drawdown ready to commence in Afghanistan. In addition. III. I hope that. Even during the worst moments of the Iraqi occupation. then strategic application. Donʼt make this argument. this argument will be well and truly laid to rest. this time around. fighting for their lives against rebel groups (or. Negating Same thing. in some cases. The conscription argument This argument.victorybriefs.10PF6-Wikileaks www. There are distinct advantages to the US over any of these actors. it was never clear to me why.
sometimes. to lots of quick analytic 1AR turns that put you in a less than ideal strategic position going into the NR. donʼt add up to a great NC position—itʼs hard to argue that contractors can never be good at what they do. These arguments. the argument goes. in my mind. debaters almost never really go for turns on turns the same way they would if the exact same card or analytics was read as a case argument). Additionally. having thousands of personnel involved in military operations who are not directly . and furthermore are subject to much harsher penalties for desertion to help them resist temptation. of contractors just starting to no-show when conditions in the areas they were working became too dangerous. so at best the argument seems to suggest that we should be careful about how we use PMFs and make sure to monitor their performance.victorybriefs. 2. it may not always be possible to monitor the quality of their work to ensure that standards are being met (and thereby enforce reputational market incentives for job performance).com Page 27 of 229 There are a number of worries about the efficacy and reliability of PMFs: Like all contractors. And as with lazy civilian contractors. On the other hand. even when itʼs possible to effectively monitor performance. thatʼs better than eating lead. Coordination problems Even if private contractors are perfectly good at what they do. and theyʼll function much more strategically for you if used in that way (since. as a negative case. Even if you have to eat contractual penalties and a loss of future business. But having a dump of these argument written up as turns on ACs is certainly a good idea.10PF6-Wikileaks www. at the expense of doing high-quality work. so they have a strong incentive to cut their own costs even. there may be cases where performance incentives simply canʼt override risk aversion—there have been reports in Iraq. among other things. for instance. and more to the point itʼs open. regular military personnel are motivated by the patriotic desire to serve their country rather than a crass desire for profit. their profit margins are determined by the gap between their contractually determined compensation and their expenses.
since whatever talent is lost to private firms can no longer contribute to the institutional competency of the military itself—better to have that talent. Military brain drain This argument is fairly self-explanatory.10PF6-Wikileaks www. since the increased wages of private contractors are simply passed back on to the military when it hires the PMF. And perhaps more importantly. and also fairly popular in the literature—PMFs simply have the effect of luring talent away from the armed forces and into the civilian sector with better wages and benefits. itʼs not clear that the contractors employed by PMFs. and less than eager to work with. itʼs hard to develop a clear and quantifiable impact story off of . this is not a path to generating large quantities of NC case offense. While PMFs may indeed be more efficient. would otherwise still be military members. 3. It also feeds the cost argument discussed below. their private-sector counterparts who make several times their wages for effectively the same work. But it also hurts the overall capabilities of the US military. For instance. fully integrated within the regular military services branches than available only on an ad hoc basis to perform specific tasks. I donʼt know if this is really such an amazing argument—for one thing. feeds the arguments about coordination—soldiers may be resentful of. if possible. As with the argument above. it is only because they siphon off much of the best talent from those units. even if US military veterans. to some extent. than most regular military units. as I suggested above.victorybriefs.com Page 28 of 229 responsive to the military chain of command or integrated into any sort of unified command structure may produce problems. but it is a perfectly good way of answering AC arguments about the effectiveness of PMFs and their ability to complement and support US troops in warzones. there have been reports in Iraq of friendly-fire incidents between military units and contractors who mistook each other for the enemy due to lack of coordination and communication. This also. relative to their numbers of personnel.
due to precisely that motivation to protect their bottom line. But it provides another way of contesting AC arguments about the gains in military effectiveness that result from hiring PMFs.victorybriefs. This argument can be impacted either in terms of military efficacy (relative to the limited resources the military has available for any given operation) or in terms of generic spending impacts (which Iʼm sure are not hard to find at the moment. Abuses of power/accountability This is the biggie—youʼll find more literature on this argument than on any other. on the resolution. is that . provided only that the AC advocacy clearly links (meaning. by (a) operating more efficiently than the notoriously cost-unconscious military. The argument. 5. But there are plenty of authors convinced that those benefits simply fail to materialize. my suggestion above still applies. partly because the comparative financial inefficiency of the military is exaggerated. in the latter.10PF6-Wikileaks www. given the amount thatʼs being written about the national debt). because they both pay their employees very well and need to make a profit on top of that. and that trades off with either using the regular military to perform equivalent functions or doing nothing at all). mainly. 4. and (b) performing a few limited and specialized tasks without the need for excessive bureaucratic overhead (which is the traditional economic rationale for outsourcing and subcontracting in general).com Page 29 of 229 this argument. In the former case. affirmative or negative. The counter-argument is that PMFs actually save money. partly because non-competitive bidding procedures and a limited number of suppliers in the market weaken the incentives for cost-cutting. and partly because the factors driving up costs simply overwhelm any cost savings. in short. Cost Another argument thatʼs just as simple as it sounds—PMFs cost a lot of money. that the AC defends a use of PMFs that is general enough to generate a substantial strength of link. this can make a perfectly good big-impact NC.
10PF6-Wikileaks www. provides by far the best-known illustration of this risk. since PMFs are not part of the US military. contractors (even when performing overtly military functions) are not subject to those same regulations. Second. Although US nationals working as contractors for the US military may be tried in American courts.victorybriefs. because they operate in legal gray areas that make prosecution and conviction extremely difficult. really bad things with virtual impunity. in a number of ways: First. their deployment is subject to weaker legislative oversight requirements. and may also enjoy immunity from prosecution in local courts. This argument is nice for negatives since (a) itʼs awfully hard to do more than mitigate it on a link level—essentially no one denies that thereʼs an accountability problem for American-hired PMFs. making it easier for the president or military leaders to send them into conflict zones (or non-conflict zones) without congressional approval and hence with fewer democratic checks. . The case of the Blackwater shooting at Nisour Square. Where military members are subject to regulations like the Uniform Code of Military Justice. in which somewhere between fourteen and seventeen Iraqi civilians were killed by Blackwater guards against whom criminal charges were eventually dismissed on procedural grounds in US courts. so the best youʼre likely to manage is to find the authors who say the problemʼs getting better. they arouse less public concern and media attention. 6. which allow them to be tried and punished under military law. since the activities of PMFs are seen as private rather than public. or can be fixed—and (b) there are a lot of different directions you can go in terms of impact. other circumstances.com Page 30 of 229 PMFs and their employees are able to do really. including the difficulty of gathering evidence at a distance as well as possibly the politically motivated desire to protect favored contractors may render this difficult. Democratic legitimacy PMFs are seen as providing the executive branch with a means of doing an end-around the will of the people in the development and implementation of foreign policy.
com Page 31 of 229 and let political leaders evade the hyper-sensitivity to military casualties characteristics of democratic publics. or really terminal defense—youʼll almost always be able to come out of the round with at least a risk of a link on these arguments. and creates at least the appearance of impunity for mercenaries engaged in imperialistic. Additionally. or breaches of international law that would otherwise be at least politically embarrassing for political leaders. itʼs worth your time to put together a negative position along these lines. soft power. Third and finally. 7. but it emerges in several different ways. interventionist policies. may have a corrupting effect on policymaking. there is a risk that PMFs. Utilization of PMFs harms American image abroad in that it lets the executive branch pursue a more aggressive.10PF6-Wikileaks www. In short. These factors in turn can have the effect of facilitating more aggressive. There also just isnʼt a lot of turn ground. for similar reasons. PMFs .victorybriefs. like any powerful corporate actors with a stake in governmental policy decisions. using PMFs can allow the US to avoid the scrutiny of international organizations— effectively. In short. unilateral foreign policy without regard for the support of the American public or the international community. such that it would be easy to make a solid. I like this position from an argument-interaction standpoint because it lets you set up a means-based/procedural NC standard (like “democratic legitimacy”) while also giving you easy opportunities to generate big impacts to an endsbased AC standard without a lot of extra work. PMFs can act as proxies for US foreign policy that avoid implicating the US government for any failures. results in abuses of human rights and even war crimes. and heg This position is more or less an extension of arguments already discussed. unilateralist foreign policy on the part of American leaders. through quid pro quo campaign contributions to legislative and presidential candidates and overly friendly lobbying relationships. multi-linked case position out of it. human rights violations. Image.
with an eye towards generating giant.com Page 32 of 229 have the effect of letting us do more of the stuff that really ticks everyone off.com. . and have fun! If you have any questions or comments about this topic analysis. easily weighable impacts. Against stock. ends-based ACs that will accept those impacts at a standards level without producing any impacts to outweigh them. and making us do it worse.10PF6-Wikileaks www. From there. Conclusion Thatʼs all I have to say. the impact story is pretty generic—pick your favorite soft power good. feel free to direct them to me at christian. IV. unilateralism bad.victorybriefs. except good luck in debating this topic. this sort of position should be very successful. or heg bad arguments to trot out.tarsney@gmail.
which controls military policy. You will also need to spend time developing a plausible. “The United States…” The resolution begins by specifying an actor – The United States. or the military itself. I hope the thoughts offered below will be helpful in your preparation.victorybriefs. that the United States ought to use PMCs to facilitate its ongoing operations in Afghanistan or something to that effect. intuitively defensible interpretation of the topic because there will not be time for the topic to evolve. This interpretation would likely be useful for individuals advocating a specific plan that implements the resolution in a particular context – e.g. There are plausible interpretations which might try to specify a component of the Federal Government as the actor. This yearʼs March/April topic is the kind of large. Presumptively this means the US Federal Government. This is important to realize because many of you will only be debating this resolution a small number of times for your NFL Qualifier or State tournaments.g. e.10PF6-Wikileaks www. You will have to put in the time and energy necessary to become familiar with the wide variety of positions and substantial literature on the topic. I suspect that given the somewhat more traditional judging pool at most tournaments on this topic and the absence of time for . multi-faceted international relations topic we normally associate with the January/February resolution. Congress.com Page 33 of 229 TOPIC ANALYSIS BY ADAM TORSON Resolved: The United States is justified in using private military firms abroad to pursue its military objectives. the President. Interpretation A.
not that it must do so. The most obvious are the Constitution. or its interest in prevailing Iraq and Afghanistan. the actor in the resolution is an important resource for developing nuanced and compelling framework and standards level arguments. its interest in combating global terrorism. The various familiar strategies for conceptualizing normative justification are all available to you (running the gamut from the various individual moral obligations proposed in the classical canon of LD philosophy to more particular obligations of the United States). the interest of the United States in maintaining its status as the preeminent military and political force in the world. As always. its interest in preventing the proliferation of weapons of mass destruction.g. B. The Constitutional requirement that Congress declare war. or federal legal requirements for PMC monitoring and control. and Federal Law. Treaties. In that same vein. morally prohibited. Affirmatives will likely argue on these grounds that the negative has the burden to demonstrate that the use of PMCs is impermissible. Iʼll not go into detail about them here. Other obligations include interests that are particular to the United States – for example.victorybriefs. affs will argue that it is not . The only point I want to raise about the use of the phrase “justified” is that it seems to suggest that the affirmative must simply show that the United States may use PMCs. our treaty obligations to protect human rights or defend allies from military attack. There are a number of contextual norms which the government is obliged to follow.10PF6-Wikileaks www. Expect to be debating about what the Federal Government as whole should do. “…is justified…” Obviously defining what it means for an action to be “justified” will be the primary purpose of your standards analysis.com Page 34 of 229 interpretations to evolve mean that this strategy will be uncommon. Each of these creates various obligations implicated by the resolution – e.
Negs.J.” Such firms are certainly Adam Ebrahim [J. Military Support Firms are companies that “perform logistical and adjunctive tasks such as providing food.D. laundry services. and maintenance at military bases. B. “…in using private military firms…” 1. 181 (2010).com Page 35 of 229 enough to show that there are problems associated with the use of PMCs. 2007]. pp.” 28 B. on the other hand.10PF6-Wikileaks www. And The Private Military Industry.. 185-188 11 .U. Military Consulting Firms.victorybriefs. History. International Law. At the very least affs will argue that being “justified” is a lesser burden than showing that the use of PMCs is the optimal foreign policy according to their standard. as well as some intelligence and transportation services. “Note: Going To War With The Army You Can Afford: The United States. Rather. Adam Ebrahim11 suggests that they are divisible into three major categories: Military Support Firms. International Studies. Boston University School of Law. negs must show that such problems are so weighty or significant that they override any potential advantage in choosing to use PMCs such that it ought never to be a choice for government. but rather that the justification is sufficiently reasonable that governments are permitted to employ them as an option within the range of their proper discretion. C. Types of PMFs “Public military firm” is a broadly encompassing term that implicates many different types of private companies. Candidate 2010. In particular they will want to argue that an action is only “justified” if the advantages of taking it outweigh the disadvantages of doing so (as measured by whatever the relevant standard is). will want to argue that “justification” is a much stronger normative claim than the interpretation just presented. this argument goes.A. and Military Provider Firms. Johns Hopkins University. Int’l L.
Military Provider Firms “focus on the front line. and tend to bring to bear the expertise of ex-military personnel. Military Consulting Firms are companies that “ʻoffer strategic.10PF6-Wikileaks www.” They often supply specialized weapons technology and personnel to operate them and thereby serve as a “force multiplier. On the other hand. Affirmatives will likely want to argue that the resolution is therefore about all of them as this makes it easier to claim that the military cannot operate effectively without them and that the problems associated with PMFs come from only a small part of the private defense contractor sector. . 2.” It is in this latter role that most contractor scandals have developed as such security services have to engage in what is largely seen as traditional military operations such as counter-terrorism or counter-insurgency. Which of these is the resolution talking about? The term private military firm is broad enough to encompass all of the different types of services mentioned above.” Such firms are often characterized as being one step from the battlefield. on the ground training of both military personnel and domestic police forces. tactical environment and engage in actual combat activities. They support nearly every US Military deployment and allow military personnel to focus on more directly mission-relevant tasks. Many argue that such firms are absolutely essential. operational.victorybriefs. such firms “engage in direct.com Page 36 of 229 the least problematic type of private firm because they provide relatively innocuous support services.” They also “provide security for military. political.ʼ They do not operate on the battlefield. Such firms can be problematic because they blur the line between conventional forces and private contractors.” Further. though they often organize what occurs there. and/or organizational analysis. and corporate individuals and installations. some affirmatives may want to specify a position about a particular type of PMF so as to avoid disadvantages associated with the others.
So.10PF6-Wikileaks www. not the relatively uncontroversial role support firms play. mostly Military Consulting and Provider firms. or whether it is better to leave most or all functions to the working of the free market and let the government purchase services rather than administer them. You can argue that you agree that support firms are necessary but not other types of firms. You can focus the debate here in several ways.” To say that a military firm is “private” means that it is owned by individuals or other businesses. Distinction between “Public” and “Private” One of the core issues implicated by the topic is whether it is appropriate for certain sectors of the economy to be largely owned and centrally directed by the government. You can argue that the disadvantages to these firms far outweighs those of support services firms. It does not mean that . 3. but negatives should be prepared to argue for why their arguments that relate to all types of firms (and specifically to Military Provider Firms) are relevant to the resolution. Negatives will want to focus on the most problematic of these services. You are probably best off making this claim on a framework level by arguing that the crux of the topic is the controversial role these types of firms play. but this functions as a plan-inclusive counter-plan and therefore is theoretically suspect for a number of reasons (not to mention a bit counter-intuitive to more traditional judges). not by the government. to understand the topic and the topic literature you have to have a good understanding of the difference between firms that are “public” and firms that are “private. This will enable them to downplay the relatively innocuous role of military support firms and instead argue that the core of the resolution and topic literature is about those firms involved directly or indirectly in actual combat.victorybriefs.com Page 37 of 229 Adding parameters to the resolution in this way is an unlikely strategy in front of more traditional judging pools. although given widespread use of support firms this is a difficult claim to substantiate.
g. 4. benefits. the line between public and private is often blurred.10PF6-Wikileaks www. military bases are considered government property. have to compete and be responsive to the market. Those who oppose privatization often argue that certain services are essential to provide for everyone (e. national defense) and that leaving these functions to the private market makes the services uncertain. The private sector is as a general rule less susceptible to public scrutiny and government regulation of things like wages. to say that a particular enterprise is “public” means that it is owned by some governmental agency. military equipment is owned by the government.victorybriefs. The traditional military is “publicly owned. This distinction is important because it makes the privatization debate part of a larger question about how government should operate. and types of services provided. personnel are paid by the government. The distinctions Iʼm making oversimplified. In practice. many private military contractors may be nominally private in the sense that they are owned by individuals and operated for a profit. This is particularly true that private military actors are often categorized as “mercenaries.” – i. Those in favor of “privatization” tend to argue that the private sector is better at providing most services than the public sector because they have a profit incentive.” a title which implicates a number of moral norms and international legal rules. but their only client might be the federal government and so they are subject to increased scrutiny and regulation. As you can see. The important thing to recognize is that a central component to debate on the topic will be about whether national defense is more properly treated as a public sector enterprise or delegated to the private sector. etc. etc.e. To say that they are “public” does not mean that they are open to the public.com Page 38 of 229 such companies are secretive or something like that. Alternative Names and Abbreviations . public education. Conversely.
g.10PF6-Wikileaks www. “…abroad…” The resolution is contextualized to the use of firms “abroad. but if that same company also serves in the cafeteria in the Green Zone . Private Military Security Companies (PMSCs). Blackwater Worldwide. etc. They may also be called Private Military Companies or Contractors (PMCs).g. although you should be cognizant that some terms are more particular that others. Searches that include firms of the type you want to emphasize may also be a good way to find the research you want more precisely. Titan Corporation. Executive Outcomes. and Africor LLC. Others were involved in some historical use of PMFs that is an important part of the debate in the topic literature (e. Africor). For instance. Titan). When researching this topic you will also want to develop a basic familiarity with the major PMFs employed by the US Government. Blackwater) or were involved in important court cases that have moved toward defining the types of rules that apply to PMFs (e. Often particular firms were involved in some scandal that generated lots of academic commentary (e.g. Private Security Companies or Contractors (PSCs). Raytheon. as many firms provide services to the military both in the United States and in foreign countries. There are hundreds of these firms employed by the military.com Page 39 of 229 Private military firms (PMFs) are often identified by a number of other names and abbreviations as well. Certainly it means that we are not talking about the company that serves food in the cafeteria at Fort Bragg.victorybriefs.” Traditionally this term refers to either the geographic territory of foreign states or the high seas. Custer Battles. you can treat these terms as synonyms. D. It is unclear to what extent this limits the topic. Each of the categories of PMF listed above is sometimes used in the literature to identify PMFs. a Private Security Company more often refers to what we have called military support firms because they provide security to officials and other companies overseas. For most purposes. but you will at least want to know the names Dyncorp.
in the case of counter-insurgency. Constructivism. Peace Studies. Marxism. Each of these has a set of normative assumptions about how states. Finally. They are also sometimes more cost-effective than domestic firms. and presumptively less invested in the success of the American military.com Page 40 of 229 then their activities seem to be inside the topic. However. Liberalism. individuals and non-governmental organizations (NGOs) like private .g. That said. Foreign companies tend to be less transparent. The most significant argument that one could argue this excludes is the claim that PMFs are necessary to develop advanced weapons technology. Some will argue that if these weapons are developed domestically such development is outside the scope of the topic. That contextualizes the PMF issues in important ways and also provides substantial material on the framework level for you to be aware of and make use of.victorybriefs. more difficult to control. and in any case if the weapon is deployed overseas or uses PMF personnel overseas it seems like it is hard to exclude such development from the topic. limiting the topic to the question of how we ought to use PMFs abroad puts the topic squarely in the category of “international relations” topic. which is a somewhat more convincing argument as soldiers tend to be trained before they deploy. you should also be cognizant of the fact that the US often contracts with foreign companies to provide PMF-type services. Feminism. The term might also be used to exclude domestic training services provided by PMFs. it is increasingly uncommon for such design and engineering work to be confined to a single country. You should be familiar with major theoretical perspectives on international relations like Realism. That is important because it implicates several different arguments.” not that the companies canʼt be incorporated or based in the United States. they are sometimes able to provide intelligence or use indigenous personnel that make foreign military operations much more effective – e. and Genocide Studies.10PF6-Wikileaks www. It is important to note that the resolution specifies only that the use of PMFs must be “abroad. On the other hand.
Recognizing what framework you are utilizing allows you to frontline against attacks on those assumptions or to call into question those of opposing positions. The fact that this is an IR topic means that you should also be familiar with major contemporary issues in global relations. and ethnic and civil conflict are all issues the global community is tackling and in which PMFs may have an important role to play (for better or for worse). E. the increasingly precarious positions of authoritarian governments in the Middle East and Africa. itʼs hard to imagine that such support services do not serve a military objective.com Page 41 of 229 firms and multinational organizations should interact with one another. and a related set of descriptive assumptions about how they tend to act in relation to one another. the UN Mercenaries Convention and the rules for when and how states may initiate the use of military force against one another. For instance.” I predict there will be much consternation over the interpretation of this phrase. “…to pursue its military objectives.victorybriefs.10PF6-Wikileaks www. In fact. Some will attempt to use this phrase to narrow the resolution. the proliferation of weapons of mass destruction. You should also be familiar with the international legal norms that are implicated by the topic – e. the struggle against global poverty and economic domination of lesser-developed nations. my intuition is that anything the military attempts to do would aptly be classified as a .g. though I very much wish there wouldnʼt be. for example by arguing that serving mashed potatoes is not a military objective and so we should not consider those types of services provided by support firms. What counts as a meaningful or significant argument may well depend on which set of assumptions you are operating under. The difficulty with this type of line drawing is where does it stop? If the affirmative is arguing that such support services facilitate specialization of the uniformed services and save money that can be diverted to the development of better weapons systems or better soldier pay. the global war on terrorism.
Again. security for Taiwan. F. we need to maintain a guise of neutrality or where they are able to offer especially expert services (e.g.10PF6-Wikileaks www. I strongly recommend you develop a compelling interpretation on this issue and be prepared to implement it.” While Iʼm not wild about this type of argument. for drug interdiction or counter-terrorism). some argue that PMFs would be particularly effective in engaging in humanitarian intervention. some propose that we might use PMFs independently of conventional military forces where. for instance. For instance. PMFs were used in Sierra Leone to help quell a civil war. security for trade routes and oil pipelines. etc. Burdens . The last thing to note about this phrase is that people may wish to specify an objective or set of objectives for which is it important to use PMFs. but thinking about the various kinds of things which might be labeled military objectives will help your brainstorming for positions and research. not as independent actors. A closer interpretive call would be an argument claiming that this phrase means that we are only debating about the use of PMFs to augment or support the operations of the uniformed services.com Page 42 of 229 “military objective. such as success in Iraq or Afghanistan. Does the fact that these are traditionally military-type roles mean that our foreign policy objectives are also military objectives? Or do military objectives mean those objectives actively pursued by the military? This may affect some substantial impacts that the affirmative wants to claim. For instance. Others may define such objectives more narrowly. Such positions might specify broad US Military objectives like naval dominance in the Pacific. technological superiority. etc. counterterrorism and weapons trafficking.victorybriefs. you should definitely be prepared for it. this sort of parametricized advocacy is not probably the most intuitive strategy for a more traditional judge.
com Page 43 of 229 Particularly for more traditional judges. this resolution raises all the traditional questions about what the aff and neg burdens are. If . It is far less ambiguous than some kind of a “general rule” burden and much fairer than a “good in every case” or “bad in every case” debate. do negatives have to advocate for the total elimination of PMF use by the US federal government? Do we have to show that the net advantages to using them outweigh the net disadvantages. A lot of the topic literature discusses how we might reform militaryʼs use of PMFs rather than whether we ought to totally do away with it. Arguments about what types of services are the crux of the topic may be slightly more difficult to make under this conception. remember that using framework to exclude arguments feels a lot more natural to many traditional judges than weighing between arguments in the way Iʼve suggested. It is somewhat unclear how this literature is to be used. or vice versa? For more traditional judges. the last of these seems like the most compelling burden. but negs will want to be careful this doesnʼt mean that their impacts are excluded altogether by arguing that such reform is unlikely.10PF6-Wikileaks www. so be prepared to defend this interpretation in an intuitively compelling way if you choose to use it. There is one further thing to note about burdens. Some affirmatives will want to use reform proposals to say that negative disadvantages are not “necessary” elements of using PMFs and therefore should be disregarded. That said. Really this is just a form of probability weighing – it might (or might not) be the case that we will implement reforms to solve or mitigate the negative disadvantages). Do affirmatives have to show that PMFs are good in every case or just as a general rule? Conversely. but really this is just another type of weighing because it claims that a particular type of impact (in this case impacts about military provider firms) are more important than another type of impact (impacts about military support firms).victorybriefs.
On the other hand. In other words. These arguments should probably function as negative disadvantages and affs will just have to answer them. and that this functionally negates the resolution. In front of most judges. negatives may want to employ various reform proposals to say that we are not justified using PMFs as they now exist.victorybriefs. especially for judges without a strong background in counter-plan theory. However. Affirmative Arguments There are so many arguments on both sides of this topic it will make your head spin.10PF6-Wikileaks www. probability weighing cannot count as terminal defense. but it can be difficult to explain why. A.com Page 44 of 229 we put it in more technical terms. . Affs will likely try to argue that this is just an affirmative argument because it means that we should use PMFs. I will try to talk about the major ones both to give you ideas for what positions you want to write and so you have a feel for what kinds of arguments you want to be preparing for. it is conceivable that some negatives will try to advocate for such a reform. In other words. the argument that we should regulate PMFs rather than reject them entirely is not negative ground. Over-Dependence A basic affirmative argument will simply be that the US military is too dependent on PMF services to get rid of them now. proposals for reform identify problem areas in the here and now which would logically require us to reject the present uses of PMFs. They are so ubiquitous that their abolition would require repurposing massive portions of the uniformed services such that it would severely deplete resources and undermine force readiness. even if under certain specific conditions. It is not at all clear that such an argument compels a negation.
First. This could be done in several ways. private firms operate in a competitive market. You may argue that particular weapons systems are necessary to winning counterinsurgency campaigns or specific conflicts like those in Afghanistan or Iraq. this position will have to get around negative arguments that non-support firms are the most important part of the topic. private contractors are often the only parties qualified to train the uniform services to operate advanced weapons systems and so are indispensable to effective force deployment. There are several potential links to this argument. The other will be to show some specific kind of dependence deriving from military provider firms – e. the dependence argument should be specific. What kinds of services do PMFs provide and what will be the specific cost of transitioning away from them. Second. The profit incentive attracts talented developers and engineers and justifies the accumulation of capital necessary to finance such research.com Page 45 of 229 Whether this position will succeed is dependent on a couple of things. B. This means that they have an incentive to develop those weapons technologies which are most desirable to the military. First. There may be a variety of specific advantages to these weapons systems. private firms are able to specialize in particular areas of research which improves their efficiency. Second. Advanced weapons technologies Another important affirmative argument will be the claim that PMFs are critical to developing and employing advanced weapons technologies.g. Third.victorybriefs. Generic assertions that PMFs are here to stay will not be enough. weapons systems that cannot be effectively operated by uniformed nonspecialists and that are essential to mission readiness and combat effectiveness. One is just to win on the framework level that all PMFs have to be considered with equal weight – perhaps in the context of a privatization good/bad debate.10PF6-Wikileaks www. You .
military provider firms may be able to utilize specially trained individuals in ways the uniformed services could not.com Page 46 of 229 can argue more broadly that such weapons systems are necessary to common military objectives – e.g. Put another way. former members of the Special Forces) who are uniquely qualified to train the uniformed services in various skill sets. They do this in several ways. the ability to deploy stealth bomber technology is critical to maintaining air superiority against nations with modern air defense infrastructures. employing PMFs for logistical support and other such non-combat roles permits more of the uniformed force to contribute directly to the success of combat operations. .10PF6-Wikileaks www. In the alternative. For example. PMFs are in a position to incentive such individuals to continue working in the defense sector and to take advantage of their particular skills. it maybe impractical to dedicate military resources to training people to maintain stealth fighter jets when there are already firms that provide expert maintenance.g. First. It may be impractical for the military to train people in certain highly specialized skill sets when there are shortages in more key strategic positions.victorybriefs. C. Force Multiplier and Rapid Deployment One of the most substantial potential advantages of using PMFs is the ability to use them as a way to augment the efforts of the uniformed services or to respond rapidly to a crisis. The existence of such specialized contractors allows the military to carry out those rare but important specialized missions without devoting the additional time and resources necessary to train and deploy government assets to accomplish the same objective. Specialized Training Often PMFs consist of former military members who are highly trained (e. D.
For instance. PMFs enable the uniformed services to be a more effective fighting force by facilitating shorter deployments and by requiring fewer conventional soldiers in theatre at any given time. The third was discussed above – PMFs may operate as a force multiplier by employing or maintaining advanced weapons technology which would otherwise be unavailable. Again. This is particularly true when one considers that most contractors are deployed voluntarily (they are always free to quit their jobs). the ability of foreign firms to use indigenous personnel may be helpful for terrorist interdiction. and related objectives. Some have suggested that PMFs may also be particularly effective in counterterrorism efforts. training and political maneuvering to deploy conventional forces to an area of the world in crisis. as is the specialized training available to many such firms. the ability to rapidly deploy and use advanced technology is helpful in this regard.victorybriefs. some have suggested that it may be advantageous to use PMFs to carry out interventions in humanitarian crises that threaten many thousands of lives. Another potential advantage of PMFs is their ability to deploy rapidly in the face of a crisis. intelligence gathering. E. Second. Often it takes substantial preparation. Sometimes those delays can be catastrophic. whereas many servicemen and women in combat in Iraq and Afghanistan are national guard soldiers who never anticipated being called up and who have little or no choice in being there.com Page 47 of 229 every soldier that does not have to mop up the cafeteria is a soldier who can be utilized in combat. Additionally.10PF6-Wikileaks www. It may also be helpful to utilize PMFs to help stabilize situations like emerging civil wars or as peacekeepers between hostile nations until the diplomatic and political process can work or until regular forces can be deployed. Cost Effective .
Maintaining high force levels to permit rapid deployment of the conventional military means that we have to provide pay. Second. PMFs in combat roles can be used as needed. A number of scholars have concluded that this ultimately results in cost savings. As discussed above. once a conflict is over we donʼt need to continue employing them. PMFs have an incentive to develop cost saving innovations. medical care. First and probably most importantly. affirmatives will argue that the market naturally helps to keep prices at the lowest possible levels for the services provided. housing. but they will be of lesser quality than if both people specialized in just one enterprise. Fourth. Affirmatives arguing for this position will make several arguments. PMFs permit this kind of specialization. Even if in the near term PMFs are more expensive that uniformed services because they have better pay and things like that. food. In other words. etc. if you have two soldiers and both of them both serve mashed potatoes and go out on patrol. to soldiers on an ongoing basis. . because they are engaged in a competitive market it is to their advantage to develop technologies that either give the military more bang for its buck or that deliver the same services more efficiently or for less money. you will get the same amount of mashed potato serving and the same amount of patrolling.10PF6-Wikileaks www. affirmatives will argue that specialization is cost effective. Third. As a general rule it is far more economically efficient to train one person to specialize in a given task then to have multiple individuals specializing in multiple tasks. Again.com Page 48 of 229 There is extensive debate over whether PMFs are actually cost effective. they either have to provide superior services or charge less money for the services they do provide.victorybriefs. Thus the market ensures an optimal balance of price and value of military services. Because firms have to compete for providing the same services.
We may be formally committed to a diplomatic process or to remain neutral in a conflict among allies or to respect state sovereignty. affirmatives will argue that the existence of PMFs improves functional retention rates. Maintaining State Neutrality Often it is politically difficult to militarily intervene in foreign political affairs even when it is in Americaʼs interest to do so. Finally. A common criticism of PMFs (discussed below) is that they cause “brain drain” by attracting talented people away from the military after they have been trained. move into a different sector. according to this argument. either because they retire.com Page 49 of 229 Finally. that PMFs manage to keep such people in the defense sector and at the disposal of the military when they might have otherwise been unavailable. The ability to deploy PMFs covertly and the fact that the actions of such firms are difficult to attribute directly to the state make them an attractive option in such cases.10PF6-Wikileaks www. All Volunteer Military There is widespread public opposition to the use of conscription to build the military to sufficient strength to carry out particular missions.victorybriefs. Some authors argue. There is also substantial reason to believe that a conscript military is a less effective fighting force because the soldiers do not want to fight. and leave the services as soon as their mandatory time is up. are not as highly specialized. or because they are promoted within the military. PMFs might be used to intervene in a civil war before formal diplomatic processes had been exhausted but in time to prevent the crisis from growing into a wider conflict or to protect vital trade corridors or prevent humanitarian disasters. Thus the ability to make use of the time and resources invested in training someone beyond their time in the military constitutes a cost savings. F. there are . G. however.
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philosophical questions as to whether or not conscription is morally justifiable – e.g. can a person be sacrificed for the good of his country?
As a result of these concerns, many will argue that PMFs help us to achieve the potential level of force readiness necessary to avoid using a draft. All of the arguments above about the ability to use advanced technologies and use PMFs as a force multiplier substantiate this claim. Essentially the affirmative story is that if we arenʼt going to use PMFs we are going to get the soldiers from somewhere, and that will almost certainly require a draft.
H. Location Specific Arguments
Some affirmatives will argue that particular PMFs are playing particularly important roles in a given conflict and so should be preserved. For example, combat operations in Afghanistan would be impossible without the logistical support of certain firms, or without the intelligence generated by certain kinds of PMFs. For those who are motivated to run timely and specific arguments, positions about why particular situations currently require us to use PMFs may be compelling.
A. Transparency and Accountability
Probably the most common criticism leveled against PMFs is the idea that they undermine transparency and democratic accountability that is desirable in relation to the military particularly and to government functioning generally. This is true in several ways.
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First, the legal controls over PMFs are presently ineffectual at best. Abuses committed by PMF personnel overseas rarely result in criminal prosecutions, lawsuits, or other kinds of sanctioning techniques. Itʼs often said that PMFs operate in a legal “black hole.” This absence of accountability may in turn allow abuses that harm the image of the United States (which is especially important in counter-insurgency and counter-terrorism operations) and which in any case are not readily controllable by the government in the same way the uniformed services are.
Second and relatedly, PMFs are often outside the structure of the formal chain of command. This causes problems with coordination and supervision. It also makes it difficult to integrate PMFs into a larger operational objective which can in turn both undermine effectiveness and make it harder to implement a particular strategy.
Third, PMFs have rather loose reporting requirements in contrast to the regular military. Instances of excessive force, criminality, or even basic mission reporting often do not work their way up a military chain of command and so are subject to less oversight by commanders and civilian military officials.
Fourth, the nature of the contracting process for PMFs is often highly secretive. Unlike the military which has fairly broad based supervision, the details of PMF contracts are rarely available to the public and rarely scrutinized when they are available.
All these factors contribute to charges that PMFs are not sufficiently transparent to ensure democratic accountability.
B. No Quality Control on Hiring
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The military has fairly rigorous recruiting standards. PMFs are often accused of having lax hiring standards so that they hire people who are either overly aggressive or insufficiently trained, particularly in the rules of war or in counterinsurgency tactics. Thus PMF problems are often linked to a basic disregard for rules that most soldiers have as a fundamental part of the training process. It is also just harder for Congress and other regulatory agencies to ensure that PMFs are hiring quality people because they are private firms – congress has little control over their day to day business affairs like who they hire and fire.
C. Public Functions and Profit Motivation
Some positions will argue that as a public good, military services should not be guided by a profit motive. This operates on the somewhat sanguine assumption that the uniformed services are motivated primarily by a sense of duty and service to country. We are concerned that those motivated only by profit will either be undesirably gung-ho type mercenaries, or will at least be unreliable in the face of mortal danger. Thus there is something to be said for the idea that something so essentially public as the common defense should not be delegated to the lowest bidder in the marketplace.
D. International Law
As I indicated in the interpretation section, there are a number of international law arguments that might be brought to bear on this topic. Two major ones come to mind.
First, there is a substantial international legal history relating to the propriety of mercenaries in the international system. Many instruments, including the UN Mercenary Convention, discourage their use altogether. There is some concern that guns-for-hire may be used indiscriminately and will not be subject to the
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same kind of restraints that states, who are presumably repeat players in the international arena, are likely to observe – e.g. the rules of conduct in combat dictated by the Geneva Conventions.
Second, international law tends to assume that only states may legitimately employ force against one another. It is unclear the extent to which mercenaries are agents of the state when compared to regular military. When PMFs violate international humanitarian law (as with the abuses of Blackwater in Iraq) states are quick to distance themselves and claim they are not directly responsible for the internal affairs of such firms. To the extent that the link between sovereignty and legitimate violence is severed, some scholars worry that this opens the door for a free-for-all in which it is nearly impossible to discern who acts in the name of a particular sovereign group and what entityʼs may legitimately authorize the use of force.
E. Hearts and Minds
Another set of arguments says that the use of PMFs undermines counterinsurgency and specifically our efforts to win the “hearts and minds” of people in Iraq and Afghanistan. The idea of hired soldiers itself does not always sit well with outside observers. When such firms commit abuses those abuses are attributed to the United States whether or not we are able to effectively control their behavior. Thus many argue that the use of military provider firms ultimately undermines our major strategic objectives in counter-insurgency campaigns.
F. Cost effectiveness
There are plenty of scholars on the other side of the cost effectiveness issue. There is reasonable empirical data showing that military contractors get paid more than their uniformed counter-parts. Also, it may be the case that markets
It also deprives the uniformed services of needed expertise. People with specialized skills know they can make more money in the private sector. or at the very least a less than competitive bidding process. Political Corruption Many argue that defense contractors and other PMFs exercise an inappropriate level of influence over Congress and defense department officials.g. G. As always. so as soon as their time is up they leave the military for more lucrative positions. the time and energy you put into preparing to meet this range of positions will pay off when it comes to competition time. PMFs spend millions of dollars lobbying for various defense contracts every year. Further. Conclusion These are just a sample of the potential arguments available to you on the topic. Best of luck to everyone! . many accuse PMFs of causing a “brain drain” in the uniformed services.10PF6-Wikileaks www. This undermines cost effectiveness because the time and resources devoted to training that individual are now essentially lost.com Page 54 of 229 drive up the price of services rendered because the government has the option of paying below market rates for many services provided by conventional personnel – e. a computer programmer makes a lot more in the private sector than in the military. Given that the contracting process is often very secretive this raises huge red flags in terms of the possibility of corruption. thus forcing them to use outside contractors. or the military needs to pay a second time to utilize them in the form of paying a PMF.victorybriefs.
outlines four key issues raised by PMCs that Congress needs to address: (1) What role contractors should play in contingency operations (2) Whether DOD is gathering and analyzing the right data on the use of contractors (3) What steps DOD is taking to improve contract management and oversight (4) The extent to which contractors are being effectively included into military doctrine and strategy13 These questions are all up for debate for this topic as each can be tied back to some aspect of justice. Currently. PMCs outnumber those in the U.fas.co. military in Afghanistan and Iraq. offers a good analysis on the size and demographics of the PMC workforce.uk/media/2004/apr/30/television. Specialist in Defense Acquisition. Specialist in Defense Acquisition.” http://www. such as military data and intelligence gathering. I highly encourage teams to review this information for insight into the scope of the work PMCs engage in. Although PMCs do engage in many fundamental military operations.internationalnews .com Page 55 of 229 TOPIC ANALYSIS BY SARAH RAINEY Resolved: The United States is justified in using private military firms abroad to pursue its military objectives. footnoted below. “Department of Defense Contractors in Iraq and Afghanistan: Background and Analysis.S. “The scandal has also brought to light the growing and largely unregulated role of private contractors in the interrogation of detainees.10PF6-Wikileaks www. 2004.org/sgp/crs/natsec/R40764. there are a number of areas where their involvement is questionable. Specialist in Defense Acquisition.” http://www.12 Moshe Schwartz. “US military in torture scandal. The U. Up to 54% of the workforce in those two countries consist of PMCs.pdf 13 Moshe Schwartz. “Department of Defense Contractors in Iraq and Afghanistan: Background and Analysis. IN light of the abuses at Abu Ghraib. Schwartzʼs article.fas.org/sgp/crs/natsec/R40764.guardian.victorybriefs. The Guardian. April 30.” http://www.pdf 14 Julian Borger.S.”14 The Guardian also notes that the 12 Moshe Schwartz. military increasingly relies on private military contractors (PMCs) to assist in military operations and objectives.
. However. Just War theory has four tenets for determining whether military defense is legitimate. Security force abuses . December 2006. grave and certain. a government that exceeds accepted local norms and abuses its people . (2) all other means of putting the aggression to an end must be shown to be impractical/ineffective. may strike back at their attackers. Counterinsurgency.org/sgp/crs/natsec/R40764.. The issue over Abu Ghraib brought issues of military contractors into mainstream discussion of military policies. can be major escalating factors for insurgencies. whatever ends violence or the war soonest could be viewed as the most just.pdf 15 . and (4) the force must not produce evils or Department of Defense. FM 3-24. Specialist in Defense Acquisition..fas. People who have been maltreated or have had close friends or relatives killed . Essentially.com Page 56 of 229 military could not charge a contractor accused of rape because of a lack of jurisdiction.S. this paper analyzes multiple theoretical justifications for their continued or discontinued use.” http://www.. (3) there must be serious prospects of success. The DOD notes in 2006: Though firmness by security forces is often necessary to establish a secure environment. “Department of Defense Contractors in Iraq and Afghanistan: Background and Analysis. efforts in Iraq and Afghanistan The most just application of force is one that aims to end itself.10PF6-Wikileaks www. generates resistance to its rule. as cited in Moshe Schwartz.victorybriefs. Later reports examined PMCs role in undermining U... Just War Theory How does one blend the effects of PMCs into a discussion of justice? Consider using Just War theory. the utility and justification for private military contractors has been called into question. 1-9. p. This system of ends-based justice can only be achieved if the actions of PMCs contribute to overall well-being and peace.15 In the face of rising concerns surrounding PMC use and effectiveness. These tenets include: (1) damage inflicted by the aggressor must be lasting.
Some argue that “the growing privatization of force poses challenges for this public/private divide as a private entityʼs actions can affect the way in which ethical principles are applied to public actors. then PMC use is unjustified using the Just War theory.victorybriefs. The second tenet closely follows the first. there is the question regarding whether our current involvement in Afghanistan and Iraq is justified to start with. If the military would be able to handle the conflict on their own.. then no additional military force is justified. www.rcsocialjusticett. members require outside assistance? Of course.org/Articles/series/2008/compendium211208. If the current situation does not have sufficient aggression on behalf of our enemies. Does the current situation facing enlisted U. However. Metropolitan State College of Denver. Department of Political Science. Competitors should ask themselves if the U.org/Articles/series/2008/compendium211208.com Page 57 of 229 disorders worse than the original aggression. Here.d. n.”18 Aff may find support in a working paper by Baker and Pattison who argue that PMCs are Nadine Bushell. especially 2-4. Member of the Catholic Commission for Social Justice. 2008.doc 18 Amy Eckert. you can use your evidence of the ills PMCs have done in the past. Several articles are footnoted below to assist you in your explanation of PMCs and Just War theory. That “there be a substantial possibility of success”17 [emphasis added] does not mean that proven success needs to be shown.doc 17 Nadine Bushell. www. December 21. “Ethical Norms and the Public/Private Divide: Private Military Companies and Just War Theory” 16 . Member of the Catholic Commission for Social Justice.rcsocialjusticett.S.S. the fourth tenet becomes increasingly important: the action must not produce evils or disorders. Just War theory creates a lens for the debate. December 21. The first tenet requires an evaluation of the context surrounding PMC use.16 These criteria. 2008. Both the Aff and the Neg can utilize this theory as a means of determining the context in which they view the evidence. The third and fourth tenets require an examination of the benefits and consequences of PMC use. given the Just War doctrineʼs stance on Jus in bello or justice in the process of war.10PF6-Wikileaks www. The United States is already engaged in military action. military is incapable of handling this situation alone. are applicable to discussions of the just use of private military contractors.
Naval Academy. Deane-‐Peter Baker. you should also be prepared for the less foundational aspects of the debate. The Peace Kritik Iʼll honestly bet that most of your opponents are focusing on the phrase “private military firms” in this resolution. and James Pattison. UK. “The Principled Case for Employing Private Military and Security Companies in Humanitarian Interventions and Peacekeeping Operations. but their oblique style kept the opponent on edge.du. What if the United States isnʼt justified in pursuing its military objectives in any manner? The peace kritik is a negative position that attacks the assumptions of the affirmative. Lecturer in Politics. 18. I wouldnʼt call it a kritik because my high school debate community frowned upon a perceived bleed from policy into LD. much of the question is how they differ from the normal military apparatus.pdf 19 . Ethics & Law U. such inspirational arguments are the result of two months of work.” http://www. this article serves as a discussion of those types of arguments you should be aware of.19 forces when intervention is considered risky for The meticulous construction of a solid theory is the foundation of any good LD case. The peace kritik argument is essentially that pursuing military objectives relies on our unwillingness to cooperate with other states as well as a blatant otherization of our opponents. Thus.victorybriefs. These surprise contentions werenʼt just about shock value. At P. let us not forget that pursuing military objectives is another major piece of this equation. University of Manchester. namely the unexpected arguments which attack theories at specific critical points. Ultimately. However. Working Paper no. Something I always enjoyed doing in Lincoln-Douglas debate was coming up with off-the-wall arguments to surprise the opponent. 56. School of Social Sciences.com Page 58 of 229 preferably to conscripted humanitarian situations. Assistant Professor of Philosophy Department of Leadership.edu/korbel/hrhw/workingpapers/2010/56-‐baker-‐pattison-‐2010. For sure. February 2. 2010. I enjoyed nullifying much of the affirmativeʼs constructive speech. As the negative.S. In addition to a solid grounding of Just War Theory. but in Lincoln Douglas. itʼs important at a minimum to be aware of the plethora of different arguments available to your opponents.10PF6-Wikileaks www. and I hardly pretend to have every unorthodox case argument.
but one of the reasons the U. If the negative wants to defend this. you simply need to win that military firms expand those possibilities. At a bare minimum. If private military firms exist and are justified. so arguing the necessity of military objectives (even if there are some poor decisions) is a great idea.com Page 59 of 229 the point that we are willing to kill our enemies.S. but within those given branches of Americaʼs decision tree. then. The military decisions made by the United States are subject to its logistical constraints. The affirmative response to this lies in a solid understanding of the framework debate. military is a negligible one.S. For the affirmative. From there. If we have accepted that the United States has chosen its military objectives. The negative response is what I would call the subsidy position. can spare. making the ends justify the means allows you to . Be sure you know if your judge will take this argument before engaging in this debate.S. we fear Iran and North Korea. For instance. as a dangerous aggressor. doesnʼt straight-invade them is the understanding that doing so demands many more members of the military than the U. the United States would be wide open to any foreign invader. they are going to be in a losing position. and if the affirmative has conceded to the dangers of some unjust decisions. they open the range of military options for the United States. Do the Ends Justify the Means? This debate is a fairly generic one in principle but Iʼve seen a lot of rounds where debaters fail to engage in any sort of discussion about how we evaluate justice. how do we carry them out? Some objectives may be more justifiable than others. the difference between private military firms and the U. The use of private firms expands these options. itʼs a matter of promoting peace and painting the U.10PF6-Wikileaks www. we have failed to budge on other issues in the name of nationalism. a military objective is the promotion of general peace – absent this.victorybriefs. Even aside from the framework debate. the affirmative can answer with the inevitability of military objectives.S.
President Eisenhower warned about the rise of the military-industrial complex. you would need to spend about two minutes on a contention that military objectives should be left to the military. must have a strong military but be aware of the impact of military technologies on the impetus for war. It certainly makes sense that this should be a real concern. The affirmativeʼs responses that private military firms are helpful can then be absorbed into the debate that the ends do not justify the means.victorybriefs. arguing that the U. I feel that the affirmative should be ready for this attack by the negative – that private military firms contribute to the military-industrial complex. by the militaryindustrial complex. their inclusion in the war machine alters the incentive structure our policymakers face. and war represents a huge market for private firms.com Page 60 of 229 change the course of the debate and simply say that private military firms are helpful. thus negating a lot of the negativeʼs work. After making such an argument. Even if there is no overt attempt by the security market to push for war. you simply reverse the assumption to attack the opponent in the most time-efficient manner possible. nobody gets paid if there is no war.S. The potential for the disastrous rise of misplaced power exists and will persist. be ready to argue either side of the ends/means debate. What About the Military-Industrial Complex? At the moment of his departure from office. we must guard against the acquisition of unwarranted influence.10PF6-Wikileaks www. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals so that security and liberty may prosper together. The negative can also use this debate to say that the ends donʼt justify the means. He famously stated: In the councils of government. On either side. . After all. We must never let the weight of this combination endanger our liberties or democratic processes. With this in mind. If your case is consistent with both sides. We should take nothing for granted. whether sought or unsought.
and not one to be ignored. perhaps internalizing the costs created by an industry historically far removed from the battlefield. which is different from the “normal” mode of war. The cost to those firms affects the cost to taxpayers. . private military firms engage in labor production. Unlike capital production. the first response to this is that the profit incentive of the firm likely outweighs the individual contracting costs. The prevalence of private military contractors has altered the equation of war – especially in AFRICOM. which is the result of a direct contract between producer and government. Thus. as thereʼs not much with which to prove this hypothesis. which is arguably made possible by military firms.victorybriefs. As the negative. the more profit. the profit incentive of the firm could be advocated as a check on the military-industrial complex.10PF6-Wikileaks www. It may be more justifiable to use private military contractors because they can adequately capture the populaceʼs take on the legitimacy of the war – and make unjust wars more expensive than just ones. An unjust. so the social acceptance of any given war is played out in the price of labor. the more pay available to hired guns. which would only increase the size of the fighting population. where troops are paid a fairly constant sum regardless of the war. The militaryindustrial complex is practically an inevitability in modern life. Labor production adds another factor: employment. That firmʼs push for war can affect the perception of justice by people signing up to work with such firms. if the aff makes this argument it should be ready to defend the theory more than the empirics. Thatʼs a check on the military-industrial complex.com Page 61 of 229 The affirmative doesnʼt have to feel left out of this debate. In fact. undesirable war costs more for the firm because its laborers would demand more compensation for fighting in such a war. Private contracting may also avoid the traditional pitfalls of the military-industrial complex as its costs scale with the scope of the war. The more profit. The empirical evidence would also seem to run against the affirmative. and the more wars. This is distinct from the capital market so I think you gain some traction here. What role does private military contracting play? It increases industry contact with the battlefield. The military firm has to find willing workers to fight its war.
donʼt let them get away with that. Make every difference seem arbitrary – and back it with the argument that private firms are more likely to make the news when something goes wrong than the normal military. donʼt be afraid to state that the people in combat are still human. Anybody can commit wrongdoing in the heat of the moment.com Page 62 of 229 Mock the Functional Differences I donʼt think itʼs a particularly controversial point for the affirmative to say the differences between private military firms and the national military are minor. The rise in regulatory efforts to contain scandals has increased the uniformity of such firms. they are compensated for their labor. Taking that argument a step further to polite mockery is a more daring tactic but one that may increase your ability to take out the negativeʼs contentions. ask how many people they think would join the army if it had no pay. The negative attacks at some point have to argue the evils of private military contractors. If your opponent says that contractors are guns for hire. If they think that contractors are poorly trained. I think that playing to the implied argument that general military use is justified makes it an easy debate. the negative needs to argue not only for existing differences but for potential ones.10PF6-Wikileaks www. . especially given the current political climate. ask them why the well-trained American military still has problems with friendly fire in Afghanistan. However.victorybriefs. they have clear contracts. Drawing an arbitrary distinction on the type of uniform seems disrespectful to the contractors who also put their lives on the line – and in most cases with no negative side effects. You have to be respectful of American troops. To answer this. and they are human beings and thus will make mistakes at some point. they are given lethal tools and may take lives in the theatre of war. no matter whom they are. especially when oneʼs life hangs on the line. the service member is probably going to be more of a “sure bet” than the mercenary. Even if there isnʼt much of a functional difference between an American service member and a mercenary. A mercenary and a soldier have the following in common: they are given a mission.
but I wouldnʼt count on it as a repeat strategy. feel free to run it. but if the affirmative wants to say that the financial motive is identical to that of a mercenary. Moreover.S.10PF6-Wikileaks www. I donʼt claim to be all-knowing. itʼs just giving more options to individuals thinking about joining in Americaʼs pursuit of its military objectives. Use it once or twice to surprise your opponents.” I think the surprise value makes it worth having. The VA Private military firms pay more to their soldiers than the U.victorybriefs. pays to its soldiers. There are also ample reasons why the VA is needed for the overall military – the length of the military contract makes room for a potential lifetime of service. I canʼt think of a solid and lasting rebuttal to these for the negative. I certainly wonʼt stop you. Conclusion Iʼll admit that the off-the wall points seem to skew heavily negative. A mercenary can choose to walk away after a contract is over. the affirmative is in a losing position. To send somebody abroad without making them eligible for the VA network may be unjust on the grounds that it deprives those warriors of access to the resources they deserve. It isnʼt unjust to create an alternative that pays more up front and less later. Of course. and then bench it. First. Consider that many soldiers are in their third tour of duty. the option to join the American military exists. .com Page 63 of 229 American service members may have some financial motive. The reason I would bench the argument is because the affirmative has quite a few options if you really think about it. but the powerful network of infrastructure that exists for American Veterans seems steeped against the member of the private military firm. This negative position seems quite off-the-wall and is a tricky one to pilot because of the nuance of debating what a soldier “deserves. but I think that says something in itself: the affirmative is very much on the defensive. the justification debate seems so heavily skewed toward the impact on the general population or the foreign nations involved that a debate about a benefits package just seems so small in comparison. If you feel extremely confident about making such an argument.
If youʼre looking for the new approach to debate that will give you the edge. and in those weak spots that we can exploit their unpreparedness.10PF6-Wikileaks www. Thatʼs not to say there arenʼt plenty of supporting and unorthodox affirmative positions such as the military-industrial complex consideration. and as such really just needs to downplay the impacts of the negative. Question your assumptions about each word and what assumptions are made in any articles you find. This is a two-month long debate. Itʼs in this deconstruction of our assumptions that we find the weak spots in our opponentsʼ cases. and before the topic is even out we have a wide variety of arguments. continually refresh yourself on the resolutionʼs wording.com Page 64 of 229 Itʼs basically saying that it isnʼt unjust to make use of private military contractors. . which requires you to be more well-read than your opponent to work.victorybriefs.
particularly in Iraq and Afghanistan. Iʼve found in my research that there are news stories that suggest private contractors are more efficient and better at promoting the peace than their non-private counterparts.10PF6-Wikileaks www. War isnʼt a clear-cut issue on its own. leaving the contentions themselves to the other essays put forth by Victory Briefs. At one point. In this resolution. How do we talk about justice in that context? This essay hopes to do so by discussing those paradigms. Their rise has brought to prominence the debate over their justification. itʼs important to consider the importance of empirics in your case. You have to decide whether to engage in a pragmatic debate which takes into account the “reality on the ground” or to take the more abstract position that the justification debate is independent of the discussion of military execution. the negative takes the side of those who fear private actors on the grounds of accountability. After all. so the debate seems like one in which we weigh a decision-making method. its emphasis lies on the value and the criterion debate.com Page 65 of 229 TOPIC ANALYSIS BY TODD RAINEY Resolved: The United States is justified in using private military firms abroad to pursue its military objectives. while the affirmative either argues that thereʼs no major controversy or that private firms increase justice in the war zone. . Thus. military. in Iraq. weʼre basically talking about a situation in which people kill each other. but admit to yourself on some level that you lean in one direction or another.S. due to their increased rates of exposure. Iʼve also heard lots of stories about abuse.victorybriefs. Private military firms like Blackwater (now named Xe services) have made news headlines in the last few years. there were as many private military firm employees as there were members of the U. A mix of both would probably be the best approach. Before you even dig into the facts of the debate.
As the Affirmative. but nothing ever is. For example. trusting our human instincts to measure them rather than a system with gaping flaws. you will want to consider an anti-theoretical value such as pragmatism. If you make such an argument. and thus that valuing any one thing results in necessary adherence to dangerous extremes. I highly advise researching it. as it seems especially pertinent these next two months. We need to accept our reality and find out what is overall the most beneficial. the “reality” of the situation is irrelevant. The recognition that atrocities such as the killing of noncombatants exist must be a part of our ability to affirm or negate the resolution.victorybriefs. The regulatory debate takes place on two levels. The first is that the potential for regulation exists as a check on complaints. the question does remain whether war crimes are intrinsic to the use of Private Military Contractors. War isnʼt perfect. this will help you to frame the round in a way that favors your case. be sure to destroy the opponentʼs value by pointing out its inability to be carried to extremes. and there are lots of stories to push on the affirmative. If you havenʼt heard of anti-theory. Instead. While the United States has allowed too free a reign of its private military firms.10PF6-Wikileaks www. Thus. Most stories Iʼve found of war crimes by private military contractors include mention of reform efforts by legislators to prevent such problems in the future. The basic argument is that the human condition is too complex to boil down to one value or another. so long as regulatory potential exists to contain private military contractors. if I attempt to put out a fire by . However. the answer to this argument lies with regulation. this is a flaw in regulation rather than in the use of such firms. we concede that the policy debaters in the other room are on to something. I particularly like taking this stance as the negative because it prevents the affirmative from whitewashing empirical evidence of abuse. Without a necessarily stable counter-value of your own.com Page 66 of 229 The Stark Reality If you opt for the argument that the reality on the ground affects our understanding of justification. Going anti-theoretical with the value of pragmatism gives you a lot of ammunition against your opponentʼs value and lets you make the debate a quasipolicy one.
private military contractors may be a necessity. many of which demand more than our current military capacity can provide. my moral flaw is not in attempting to put out a fire but in callously using you as the tool. the US should be careful not to overstretch its military objectives in the first place. Likewise. Absent sufficient regulation to protect the theatre of war from abuse by private military firms. and it promises that all actors in the theatre of war are state actors. Given that the U. private military contractors arenʼt really dangerous on a pragmatic level but the United States is unjust in failing to regulate them. The draft isnʼt desirable but it does still manage to avoid the lack of accountability that exists on the private level. The second level of the regulatory debate is that the absence of regulations affects the context in which we can determine justification. It seems tangential to the discussion but I think that if you are going to discuss what we call our imperfect reality you are going to have to discuss the regulatory system itself. perhaps the draft is preferable to private military contractors (an argument I donʼt like). but a lack of . What other options could we have? You just need to suggest that we have none. especially considering the repeated empirics of failure to reform. The military overstretch is pretty important. This necessity pushes us to a pragmatic discussion. and is a debate worth having.com Page 67 of 229 throwing you into it. and regulation is a part of that circumstance.10PF6-Wikileaks www. The Affirmativeʼs argument about pragmatism seems grounded in troop shortages. The United States can be justified in pursuing its military objectives.S. In other words.victorybriefs. Absent other alternatives. and Third. military has a wide range of objectives. we cannot justify their use by the United States. and thus you default to pragmatism (as it is the lesser of two evils). Second. There are a couple of potential negative responses to the affirmativeʼs shortage position: First. The former favors the Affirmative while the latter favors the Negative. It ensures consistency of the military unit. we are justified in making use of private military contractors. justification is contingent on circumstance. that private military contractors still do more harm than good.
If the costs outweigh the benefits. then private military contractors are ethical.S. from a military perspective? I think there are justifications for its strategic importance but itʼs certainly up to debate. I define this as the ability to fulfill military objectives in a sufficient way. the Aff may take a criterion of military capacity. This gives you the grounded argument that private military contractors are sufficient for many needs in combat (even if not all). The best way to do that is a determination of ethics as consequence. The criterion for pragmatism would likely be net benefits. Another important criterion is that of efficiency. it isnʼt justified in using military firms to allow a continued expansion of its objectives. Finally. If the U. This would be the Since teleology implies the study of ends.victorybriefs. but how we fill those shortages matters. but on the pragmatic level we should consider them similar enough for our purposes. private military contractors could still do more harm than good. Ethics and justice are certainly distinct. Just how necessary is Africa to the United States. so they may be . we should hesitate to use them regardless of the existence of a shortage. even though they would up the personnel count. private military firms are slightly cheaper than military soldiers. Consider AFRICOM. If the dangers and inexperience of private military firms represent a substantial hazard. which is similar to military capacity but which also includes monetary cost and risk to personnel. I do worry that “net benefits” as a concept is hard to peg down. For example. We donʼt really have a universal metric for measuring human rights abuses as opposed to a body count. fill troop shortages with toddlers.S. Shortages are certainly dangerous. This is because we donʼt perceive the value of toddlers in the theatre of war to be worth their use. so I would try to narrow the focus a bit more.10PF6-Wikileaks www. which has seen a rise in the number of private military contractors. private military contractors are unethical. We wouldnʼt let the U. we should create a rational calculation about the anticipated effects of private military contractors. If the benefits outweigh the costs. teleological approach. can avoid a troop overstretch.com Page 68 of 229 troops could indicate that it is too liberal in selecting its military objectives. Overall.
The Philosophical Level If you opt for the philosophical discussion. a value I define as the ability to count on those fulfilling military objectives to do so in a manner consistent with the stateʼs needs. I think you should be ready to answer back accusations of PMCs breaking the law anyway. As mentioned earlier. the legal question is the most pertinent.com Page 69 of 229 more efficient.victorybriefs. at which point you could go all-in on the idea that there is no rule against their use in warfare. Private military firms may have conflicts of interests. so it certainly favors you to win this debate. The third criterion for pragmatism is legality. but they may also be not up to standards. Youʼre hardly dealing in the perfect. they tend to get bullet proof vests. At the same time. which is more than some soldiers in the Army and Marines can say. and given the lack of training by some private firms (or the inability of some to speak English). Therefore. This encompasses both sides of the battlefield. The last criterion I like is efficiency. thereʼs a threat to lives on both sides of the battlefield. for instance. This last criterion would be linked to an anti-theoretical value on the basis that our only guide for actions in war is their legality.10PF6-Wikileaks www. Obviously a private military firm operates on a contractual level and doesnʼt meet this last criterion. The governing realm of international law is the closest we can get to a universal set of ethics. which would be similar to the affirmativeʼs efficiency value but framed in a more critical manner. you would talk about the need to minimize steps in the chain of command or for the military unit to have maximum cohesion. The Neg might consider risk to lives as a criterion. While the affirmative thinks that monetary cost is all that matters. If you value justice. I think that it makes sense . you will want to spend a somewhat greater amount of time on your value than your opponent. Another is consistency. youʼll want to explain not just what justice is but how it pertains to the use of military contractors and why a discussion of justice exists independent of what happens on the evening news. youʼre already in a circumstance where people kill each other in state interests.
because itʼs very hard to prove much one way or another. it isnʼt just to allow less accountability. justice as a value is very similar to its prior rebuttal against the affirmative.10PF6-Wikileaks www. Thereʼs a clear out for the judge to vote in the round. kindly refer them to the policy round going on a few doors down. If they insist on debating the “political realities” of the battlefield. Making both equally valid but drawing a distinction gives authority to the justice dialogue because it lets you sidestep a pragmatic opponent while not having to completely discredit their arguments. I think this is key to escaping what is otherwise a damning argument in any round. youʼre saying that on the system design level. This notion of justice is based more on a lack of its necessary negative – injustice – than it is on the promotion of justice through military contracts. For the Negʼs constructive dialogue. military in all circumstances so the negative has the ability to advocate U. I think that the affirmative is necessarily defending the U.S.S.com Page 70 of 229 to acknowledge the political reality our politicians face. I think itʼs so dangerous that the negative wants to critique its use rather than directly engage it. Doing so seems tactically wise to me because it places the burden of proof upon the negative. youʼre setting yourself up for the argument that using contractors entails a high risk of individual-case injustices. military use first and foremost. Instead. This isnʼt the same as the “facts on the ground” discussion because youʼre dealing with the philosophical idea of accountability. For the Aff. .victorybriefs. However. but also to say that a debate over the potential is as important as one of the facts. With an introductory speech to establish a case and the last word against any negative contentions. The use of contractors is never justified if there is a MORE just option available. this burden of proof is exceptionally strong. In this case. and that is the argument that only a national military can promote justice. a value of justice is one which pays into the argument that it is fair for a nation to pursue its military objectives in any manner it deems desirable. The first way for the negative to attack a burden of proof is to argue that justice isnʼt ambiguous – it is a value which seeks self-maximization.
The negative can say that private actors are less democratically accountable. but I think thereʼs ample evidence to imply that private firms value specificity. which I define as the ability of a soldier to kill the enemy and only the enemy. military is following those rules. of course. your favorite phrase is going to be “Abu Ghraib. However. youʼre basically arguing that thereʼs no strong objection to the use of private military contractors.victorybriefs. itʼs just to kill if all parties are clear what its terms are. If you do so. where many decisions lie in choosing the lesser of two evils. A criterion that goes both ways is democratic accountability. and that people can lobby against their use if they wish.S. It doesnʼt hurt that there is some synergy between the two positions. Another criterion is precision. Iʼd suggest respect for the rules of war. itʼs important to recognize that private military firms have to hire willing individuals.” Yes. I think that this monthʼs resolution makes the criterion level especially difficult to construct for the theoretical debater. which could be defined as the ability of our republic to hold actors in the theatre of war accountable to the will of the electorate. That tells me that a debater looking to attack their opponent will want to target the criterion. The later discussion of free market ethics suggests that the profit motive pushes companies to be as precise as possible.com Page 71 of 229 You can. there have been violations by private military firms of the rules of war. Not only does this criterion let you capture the dialogue of the imperfect world. In war. as they . Truth be told it isnʼt. but it also lets you make a comparison between private military firms and the U. Justice is hard to evaluate in the context of war. but that only invalidates their use at the point in which the U. military. which simultaneously demands lots of constructive attention.S. I think this has a lot of weight when you look at the military-industrial complex. Private military firms and the U. make extensive use of empirics to demonstrate consistency with your philosophical model.10PF6-Wikileaks www. military alike have created collateral damage.S. which we will touch on a bit later in this article. Youʼre essentially looking to make the debate “unfair” by finding a criterion for injustice to which you do not link. so the criterion is really dangerous for you. For the affirmative. For the aff. collateral damage isnʼt so great.
the market puts a high enough price on private military contractors that there is no subsidization of their production. Itʼs a sort of tautology. A market is the aggregation of individual supply and demand.com Page 72 of 229 are somewhat more mysterious and they only play to the government.victorybriefs. they will do so – but only at a price which is fair. despite being market actors themselves. That . I wouldnʼt run it. If there is enough need for people to sell themselves as mercenaries. This argument is based on the old ideals of Adam Smith that overall. That such a need exists and is met means that its exchange is just. but who does a private military contractor cater to? Do they cater to the government? Thatʼs a single buyer rather than a market. Thatʼs objectionable on the grounds that justice sometimes relies on selflessness. it is only because the market has been able to react to a need. The negative can attack free market ethics either by questioning it or by saying that private military contractors are inconsistent with free market ethics.10PF6-Wikileaks www. The profit motive of private military firms seems especially dangerous. and many modern economists express disdain for government actors as being anti-market. So a business that acts on government wishes isnʼt truly a free market actor. I think the strongest criterion in connection to justice is the minimization of the military-industrial complex. On the first level. and free market ethics donʼt make a lot of room for that sort of nonsense. but one which works. I think this is a strong position from which to argue. If you are familiar with the idea of market ethics as just. because they have a financial incentive to push the United States to war. the free flow of financial capital to meet whatever need arises is moral. On the second level. If the previous argument got you lost. If private military contractors exist. may not operate in a real market. For the negative. free market ethics arenʼt perfect. There is another criterion for the affirmative that I feel deserves special mention: Free market ethics. Likewise. They literally reward greed by making ethical decisions about money. not to the people. Eisenhowerʼs warning was clear: that if the military has too much power it may push for war when war is not just. private military contractors.
Another good criterion for justice is the same as mentioned for the affirmative: democratic accountability. as it seems an especially tricky part of the resolution. The affirmative can answer on the pragmatic way by saying that war is a likely inevitability and that democratic voting always checks this back. it seems like it is acting almost autonomously in the theatre of war. Conclusion There are a lot of ways to go in this resolution. and that means that comparative analysis is key to carrying the judgeʼs ballot. and one which I would not stop talking about at any point in the round. That seems especially dangerous.10PF6-Wikileaks www. itʼs a matter of winning the framing of the debate – yet another reason why I consider the value/criterion so important. and it can pursue its objectives with less governmental oversight. and while each has value you should make note of the arguments you like and donʼt like. War is really messy and is a literal result of the failure of states to pursue the ideal action of cooperation. . donʼt assume that everything will go over perfectly. Thus. but I still lean neg on the argument.victorybriefs. we are working in a sub-optimal set of assumptions.com Page 73 of 229 philosophical ground is in my opinion the strongest argument on the part of the negative. Be aware of the potential implications of your advocacy and be prepared to answer for them. However. Once you have those answers. If a private firm is not elected. Your value breakdown is important to recognize – are you pragmatic or philosophical? Attack your opponentʼs criterion.
intelligence. Corporate Warriors: The Rise of the Privatized Military Industry. 8. University of Calgary. Scott. Journal of Military and Strategic Studies. Issue 1. risk assessment. PMCs are defined in this paper as the collective private military forces that possess a permanent corporate structure. By the very fact of their function. 2007.10PF6-Wikileaks www. they break down what have long been seen as the traditional responsibilities of government. Vol.com Page 74 of 229 FRAMEWORK EVIDENCE DEFINITION OF PMFS. Fitzsimmons. training. Cornell University Press. Senior Fellow and Director of the 21st Century Defense Initiative at the Brookings Institution. compete in the open global market for a wide range of military services. Department of Political Science. That is. and technical skills. once generally assumed to be exclusively inside the public context.victorybriefs. They are corporate bodies that specialize in the provision of military skills. . They are business organizations that trade in professional services intricately linked to warfare. “The companies behind these episodes are a new development known as Privatized Military Firms or PMFs. DEFINITION AND DESCRIPTION OF PMFS. Peter Warren. strategic planning. PMFs are private business entities that deliver to consumers a wide spectrum of military and security services. “Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation”. are driven by business profit. Singer. operational support. and employ public and transparent recruiting patterns. Fall 2005. including combat operations.
1.com Page 75 of 229 PMFS HAVE COME TO BE WIDELY UTILIZED BY STATES OVER THE LAST TWO DECADES. They have operated from Albania to Zambia. Moreover. their operations are not restricted to any one geographic area of type of state. including in relatively backwaters and key strategic zones where the superpowers once vied for influence. Beginning in the 1990s. 2007. often with strategic impact on both the process and outcome of conflicts. but it has become global in both its scope and activity. and humanitarian NGOs. PMFs have been active in zones of conflict and transition throughout the world. Their customers also are ranged across the moral spectrum from “ruthless dictators. respected multinational corporations.” . They have been critical players in several conflicts and often the determinate actor. their operations have becomes integral to the peacetime security systems of rich and poor states alike. Peter Warren. Corporate Warriors: The Rise of the Privatized Military Industry. What is even more shocking is that not only does this new industry of privatized military firms simply exist. Senior Fellow and Director of the 21st Century Defense Initiative at the Brookings Institution.10PF6-Wikileaks www. As illustrated in Figure 1.victorybriefs. Singer. Cornell University Press. morally depraved rebels and drug cartels” to “legitimate sovereign states. PMFs have been active on every continent but Antarctica.
Juris Doctor.S. garnered notoriety during the 1990s for training Angola's armed forces and for playing a pivotal role in the suppression of rebel [*60] movements in the Ivory Coast. L. sanitation.10PF6-Wikileaks www. such as Blackwater U. such as the Halliburton subsidiary Kellogg Brown & Root (KBR). and transportation personnel. supply protection to various groups and individuals carrying out reconstruction efforts as well as to various government officials and installations. 59-61 Private military contractors can be roughly divided into three categories based on the companies' primary functions: (1) logistical support firms. “Military Privatization: Efficiency or Anarchy?” 6 Chi. Military Professional Resources Incorporated (MPRI). 58. non-military operations like providing laundry services. The sheer breadth of services currently provided by private military contractors illustrates the everincreasing power these companies have over the ability of countries to make war and keep peace. n8 Executive Outcomes.victorybriefs. (2) private security firms. n7 which provide military training and even combat services to their clients. MARK CALAGUAS [Loyola University Chicago School of Law. pp. handle basic. PRIVATE SECURITY. along with stories of human rights abuses perpetrated by certain contractors. provided training to the Croatian army in April 1995. and (3) private military companies. AND THAT SUPPORT OR ENGAGE IN REGULAR MILITARY OPERATIONS. a private military firm based in South Africa. that army launched a (perhaps not-so-) surprisingly effective offensive against Serbian forces shortly thereafter.com Page 76 of 229 PRIVATE MILITARY CONTRACTORS INCLUDE FIRMS THAT PROVIDE LOGISTICAL SUPPORT. n10 These activities. the company that employed the guards who were killed in Fallujah. n9 An American company based out of Virginia. catering. Int'l & Comp. 2006]. have done much to shape the public image of private military contracting and have led to charges that private military firms are nothing more than bands of thugs operating as modern-day mercenaries. n12 . n5 Private security firms. n11 The potential for abuse through the use of private military firms is a major cause for concern.A. n4 Logistical support firms. n6 Perhaps the most controversial of all private military contractors are the private military firms.-Kent J.
Singer. drug cartels. realized they no longer required such bloated fighting forces.S. local conflicts began to skyrocket as once-dormant tensions reignited. P. the global marketplace also experienced an enormous release of weaponry into channels of commerce.S.R. machine guns. MARK CALAGUAS [Loyola University Chicago School of Law.victorybriefs. exploding into bloody clashes waged by combatants who now possessed an unprecedented access to weapons and knowledge. [*62] and guerilla movements to expand their influence and consolidate power. n20 Increased access to incredibly destructive weapons meant that governments began to lose their monopoly on the means of warfare. thus enabling a wider variety of private actors to pose greater threats to peace and stability. INCREASING GLOBAL INSTABILITY. Juris Doctor. n15 Governmental downsizing thus freed up these personnel to utilize their skills and training in the private market. n14 One commentator. thus reversing a decades-long trend of military buildup.com Page 77 of 229 THE RISE OF PRIVATE MILITARY FIRMS IS TIED TO THE UNDEREMPLOYMENT OF MILITARY PERSONNEL AFTER THE COLD WAR. L. governments quickly sold off arms to raise desperately needed funds. and land mines. 2006]. and assorted Soviet satellite nations were the main suppliers of these weapons. AND THE TREND TOWARD PRIVATIZATION AT THE END OF THE 20TH CENTURY. n17 In the process of military downsizing. a number of conflicts that have sprung up in recent years appear to be motivated less by purely . likens the Cold War militarization to an extended period of hyperinflation: once governments.W. “Military Privatization: Efficiency or Anarchy?” 6 Chi. where nearly every weapon in the East German arsenal was sold. Indeed. but also included light weapons such as grenades.10PF6-Wikileaks www. most of it to private bidders at cut-rate prices. n13 One factor leading to the use of private military contractors was the decline in demand for regular military personnel following the Cold War. AN INFLUX OF ARMS INTO THE PRIVATE MARKET." n19 This arms sale was not limited to highticket items like missile systems and tanks. as the end of the Cold War changed the structure of military forces around the world. German reunification resulted in "essentially a huge yard sale of weaponry. 60-62 The rise of private military contractors began with the fall of Communism. n24 Indeed. n22 The origins of these conflicts ranged from the reopening of old wounds between various ethnic groups in the Balkans to the implosion of weakened states such as Somalia and Sierra Leone. 58. n23 This disintegration of law and order in turn provided an opportunity for non-state actors such as terrorist networks. Int'l & Comp.-Kent J. n21 Once Cold War politics faded into the background. particularly those located in the former Communist bloc. n16 In addition to an influx of new soldiers. pp. a worldwide glut of underemployed [*61] soldiers resulted. n18 Former members of the U.
n25 Such conflicts.com Page 78 of 229 ideological reasons than by economic motives. this trend was also exacerbated by the privatization revolution that began sweeping national governments in the closing decades of the twentieth century.K.victorybriefs.. abetted by institutions like the International Monetary Fund and the World Bank. the Thatcher administration's rise to power in 1979 led to the denationalization of state-owned industries in the U. n28 The trend toward privatization eventually spread to countries across the globe. n27 In Britain. n29 . attract enormous attention from private parties who look to profit personally rather than to effectuate a specific political goal. wherein the casus belli effectively is divorced from strong notions of national loyalty. n26 While more and more career soldiers began hanging out their shingles mainly as a result of the market conditions brought on by the fall of the Iron Curtain.10PF6-Wikileaks www. which helped revitalize the stagnant British economy.
D.. PSCs would arguably not fit into any of those excluded categories. n78 The primary [*70] purpose of that convention was the protection of civilians during battle.victorybriefs. followed by most of the international community.M. Presently assigned as Brigade Judge Advocate. LL." n89 The majority approach distinguishes those actions that cause "actual harm" from actions that merely represent "participation in the war effort. n87 Instead. the civilian who causes actual harm in a conflict would "become a legitimate target" for such time as they engage in those acts. however. n84 As civilians accompanying the force. . n91 . J. Thurnher [Judge Advocate. 69-71 The notion of exercising distinction and protecting civilians on the battlefield from direct attack has long been a part of the law of war. for instance. 2004. failed to define who should be deemed a civilian. n82 Given their nature and role. 64. It clarifies that "members of the armed forces. U. n90 Thus." and those who "spontaneously take up arms to resist the invading forces" should not be considered civilians. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts. Thus in 1977. however. 2007. there are two various approaches to determining what constitutes taking a direct part in hostilities." such as. n77 Although there had been various efforts to protect civilians throughout history. pp.com Page 79 of 229 IT IS NOT ALWAYS CLEAR WHETHER PMC PERSONNEL ARE CONSIDERED “CIVILIANS” AS OPPOSED TO “COMBATANTS” UNDER THE INTERNATIONAL LAW OF WAR.. n81 Protocol I seeks to define civilians through its Article 50 by specifying who should be excluded from the definition. Army. The majority approach. The Judge Advocate General's Legal Ctr. n79 The convention itself. & Sch. the Additional Protocol I (Protocol I) to the 1949 Geneva Convention was written to help clarify who was entitled to protection as a civilian. The College of William and Mary]." n86 An exact definition of what it means to take a direct part in hostilities does not appear in the Geneva Conventions nor in the Protocol I. n83 Thus. the Protocol I seems to indicate that PSC employees should be deemed as civilians.S. Charlottesville. militias. 4th Infantry Division. Major Jeffrey S. many nations thought the convention was not successfully serving its purpose.S.. U. n80 Without such a definition. the actions of a munitions factory [*71] employee. n85 These PSC employees can." "members of . employees of PSCs would normally not be considered lawful targets under the law of war.. lose their civilian protections "for such time as they take a direct part in hostilities. Army. Fort Carson. the international community took a more significant step after World War II with the signing of the Fourth Geneva Convention (GC IV). . Colo. Va.10PF6-Wikileaks www. 4th Brigade Combat Team.” 2008 Army Law. n88 adopts the notion that taking a direct part is achieved by "acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces.
853 (2010). This approach focuses instead on the function of a civilian employee participating in the war effort and the "importance of his or her duties. Scott M.victorybriefs. under this approach. has a more expansive view of which civilians can be intentionally targeted. 877-878 Democratic accountability asks whether a government practice. Democratic accountability is inextricably tied to legitimacy because its purpose is to keep policy decisions by political officials roughly in line with and responsive to the policy preferences of the public. n120 . democratic accountability requires those in power to accept responsibility for their actions and the consequences of their policy choices. LSU Law Center]. Sullivan [Assistant Professor of Law. regardless of whether the civilian causes any actual harm. primarily followed by the United States. L.com Page 80 of 229 The second approach. a civilian may be targeted for supporting a highly sensitive or important weapons system. Rev.10PF6-Wikileaks www. n93 The more significant the contributions of the civilian employees are. n94 TRANSPARENCY AND ACCOUNTABILITY ARE CENTRAL COMPONENTS OF DEMOCRATIC LEGITIMACY. he or she may become a lawful target. n119 Its effectiveness is dependent on answerability (public access to information and justification for government actions and decisions) and [*878] enforcement (the capacity of the public to punish officials for policy choices the public does not endorse). pp.” 42 Conn. “Private Force / Public Goods. such as the use of privatized force. n118 In a constitutional system." n92 Depending on the functions performed by the civilian. the greater the likelihood that these employees will be deemed combatants. effectively short-circuits proper democratic checks on government power and simultaneously precludes the ability of the electorate to recognize and respond to that practice. For example.
n209 Moreover. 896 Formal and practical obstacles to transparency may cause one to think that a principle of democratic accountability is impractical in causes of war. 853 (2010). democratic accountability principles simply require the availability of overarching policy choices and a normative list of values attached with each policy choice. .” 42 Conn. democratic accountability does not assume perfect transparency. Rev. The ability of the State to restrict exposure of information to the public.victorybriefs. roughly. As a roughly hewn guide to following public policy preferences and adhering to public values. it accepts both the reality and opacity of power. n210 As such.10PF6-Wikileaks www. Sullivan [Assistant Professor of Law. L. rather. LSU Law Center]. “Private Force / Public Goods.com Page 81 of 229 DEMOCRACY DOES NOT REQUIRE PERFECT TRANSPARENCY AND ACCOUNTABILITY. does not wrestle away democratic accountability when the overarching subject matter of the policy is of high public importance and subject or available to large numbers of individuals within the government. Scott M. pp. its goal is not to gain the requisite modicum of control of official power in order to guide it. according to public preferences. This is because even highly restricted evidence contrary to public interests has proven likely to emerge in public due to internal competitive pressures within the bureaucracy and the anonymity associated with large government. however.
n17 PMCs "with publicly traded stocks grew at twice the rate of the Dow Jones Industrial Average in the 1990s. Adam Ebrahim [J. while corporations employ PMCs to protect their investments in high political-risk areas. but some major PMCs have been able to enter into one or two billiondollar contracts. for example. and regional organizations employ PMCs. nongovernmental organizations. Candidate 2010. 2007]. 2007]. n19 While governments remain the industry's primary clients. Johns Hopkins University. International Law. B. n20 The United Nations. increasing numbers of multinational corporations.A. n24 As has been the case in many other industries. n16 Individual [*185] contracts with governments. And The Private Military Industry. International Studies. specialized supply-chain and logistics companies perform their duties more efficiently than the military ever could. B. relies heavily on private forces for logistical support of its de-mining programs and disaster response efforts.. Candidate 2010.S. History. the U.US-based PMCs between 1994 and 2002. n26 Still. 181 (2010). estimated at a total worth of $ 300 billion.D. given the clear distinction between combat and support. n15 The expanding industry generates around $ 100 billion annually.S.” 28 B. Boston University School of Law. Intʼl L. although a lack of transparency makes exact numbers difficult to estimate. Intʼl L.A.com Page 82 of 229 PMCS ARE AN ENORMOUS GLOBAL INDUSTRY. International Studies. n25 Logistical support firms are distinctly militaristic in nature and perform tasks traditionally reserved for the state. and maintenance at military bases. 181 (2010). pp. 184-185 Roughly 200 private military companies operate worldwide. laundry services. military deployments.” 28 B. 185-186 Military support firms perform logistical and adjunctive tasks such as providing food.J. n27 . Department of Defense entered into more than 3.. even though they [*186] appear the furthest removed from the classical mercenary and encompass nonmilitary functions..10PF6-Wikileaks www.J. companies.D. And The Private Military Industry. “Note: Going To War With The Army You Can Afford: The United States. n21 MILITARY SUPPORT FIRMS – DEFINED Adam Ebrahim [J. military support firms do not raise significant legal or regulatory challenges and support virtually all U. and organizations begin in the hundreds of thousands of dollars.000 contracts with U. Johns Hopkins University. pp. International Law. “Note: Going To War With The Army You Can Afford: The United States.S.victorybriefs.U.U. Boston University School of Law." n18 According to one report. History. as well as some intelligence and transportation services.
. n31 In addition to management-level problem solving. combat situations have blurred the distinction between training and implementation. n33 . 186 Military consulting firms and military provider firms perform services traditionally identified with the armed forces. military consultant firms also engage in direct. Boston University School of Law. n30 By applying private-sector consulting methods and hiring brilliant ex-military minds.victorybriefs.com Page 83 of 229 MILITARY CONSULTING FIRMS – DEFINED Adam Ebrahim [J.A. n32 As a technical matter. and political issues than do military support firms. History.J. n28 Consulting firms "offer strategic. 2007]. B. International Law. “Note: Going To War With The Army You Can Afford: The United States. Candidate 2010. military consultant firms offer their clients a level of expertise that few public armies can equal. 181 (2010).U. and thus raise more complex legal." n29 They do not operate on the battlefield. Johns Hopkins University. Intʼl L.D. And The Private Military Industry. International Studies. though they often organize what occurs there. however. At times. and/or organizational analysis. operational. moral. pp. military consulting firms stop one step before the battlefield. on the ground training of both military personnel and domestic police forces.10PF6-Wikileaks www.” 28 B.
B.com Page 84 of 229 MILITARY PROVIDER FIRMS – DEFINED Adam Ebrahim [J. n41 . History.D. aircrafts. 181 (2010). a small number of firms have deployed armed personnel in battalion-sized units on the ground (500 to 1500 troops). International Law. n38 Instead. helicopters.U. Johns Hopkins University. counter-insurgency.victorybriefs. And The Private Military Industry. n40 Security and policing [*188] often entails counter-terrorism. n37 After their infamous work with embattled governments in Africa in the 1990s. n34 These firms bear the closest resemblance to traditional mercenaries and perform "core" military functions.10PF6-Wikileaks www. and corporate individuals and installations in states like Iraq and Afghanistan. 187-188 Military provider firms focus on the front line. International Studies. highly specialized services. Boston University School of Law. pp. they occasionally engage in activities that resemble traditional combat. so they attract the most negative attention from the public. reinforced by artillery.” 28 B." n36 In the former case. political. and various tactical specialists. Intʼl L.J. and government officials around the world. n35 Military provider firms offer clients both full units and more specialized "force multipliers. and other special operations. ships.A. the media. PMCs provide security for military. Although they are formally positioned as security forces targeting criminal elements. “Note: Going To War With The Army You Can Afford: The United States. PMCs today generally do not openly offer combat services. 2007]. due to the nature and scope of international security threats. in which firms possess large scale military capabilities. Candidate 2010. tactical environment and engage in actual combat activities. military provider firms provide "force multipliers" and supplement existing armies with tactical.. n39 Often.
2007]. but the reality stark: private military forces play an unprecedented role in the conflict. Intʼl L. 189-190 As the United States' single largest military commitment in over a decade . 181 (2010). allied force. private military [*190] forces outnumber the troops sent by all other coalition members combined. n50 The wordplay is dramatic. n53 By nearly all counts.com Page 85 of 229 THE UNITED STATES USED A HUGE NUMBER OF PMCS IN IRAQ. Boston University School of Law. pp.U. International Studies. to providing paramilitary security activities. International Law. Candidate 2010.10PF6-Wikileaks www. to maintaining billion-dollar weapons systems.and the first significant engagement in the post-Cold War world .000. Adam Ebrahim [J.the Iraq War has thrust the private military industry into the strategic. n51 Private companies provide their full gamut of services in Iraq.victorybriefs. and public forefront. but even the most conservative estimates place the number of PMC personnel in Iraq around 50.J. from feeding troops. and the industry has suffered more total causalities than the entire non-U.S. And The Private Military Industry. n54 . History.A. given the diversity of services provided and the volume of private contracts.” 28 B.. political. B. Johns Hopkins University. n52 Their total numbers prove difficult to tally. “Note: Going To War With The Army You Can Afford: The United States.D.
” 28 B. n195 Article 1(1) of the Convention employs a definition similar to that set forth in Protocol I and adopts the six criteria of mercenary activity with two minor modifications. n198 Article 1(2) reflects the OAU understanding of mercenarism.com Page 86 of 229 MERCENARY – DEFINED IN INTERNATIONAL LAW Adam Ebrahim [J.10PF6-Wikileaks www. the UN Mercenary Convention harkens to the OAU Convention in enumerating specific crimes. It supplements the definition of mercenaries by adding that a mercenary is also someone who. n194 After declaring mercenary activity to be in violation of the "principles of international law" and calling on states to prevent. the UN Mercenary Convention set forth a two-part definition of the practice. one who "recruits. n197 Second. Financing and Training of Mercenaries (the "UN Mercenary Convention"). or [*209] (ii) Undermining the territorial integrity of a State. Boston University School of Law. B. 181 (2010). And The Private Military Industry. prosecute. pp. supporting mercenaries in any manner. the General Assembly in 1989 adopted the International Convention Against the Recruitment." n200 Similarly. and allowing mercenary activity in any place under a state's jurisdiction. Johns Hopkins University. and one who is an accomplice in any such act or attempt. International Studies. and punish offenders. finances or trains mercenaries. International Law..A. History.J. the law of armed conflict and international humanitarian law. or the territorial integrity of another State. n202 . n201 In slightly different but overlapping language. n199 This language mirrors the OAU Convention's definition of mercenarism as a crime committed in opposition of the "self-determination stability. 208-209 The United Nations returned to the mercenary question in the 1980s amidst growing international uncertainty on the issue.victorybriefs. n196 First." one who attempts to use or act as a mercenary." thereby going further than Protocol I. Use. the UN Mercenary Convention removes Protocol I's "direct participation" nexus from the mercenary definition and instead lists participation "directly in hostilities or in a concerted act of violence" as an explicit violation of the Convention. Intʼl L. 2007]. “Note: Going To War With The Army You Can Afford: The United States. the OAU Convention defined three situations where mercenary activity constitutes a "crime against the peace": acting as a mercenary. which only applied to international armed conflicts. Candidate 2010.U.D. After nine years of debate and diplomacy in an Ad Hoc Committee. The UN Convention lists four situations constituting an "offense": one who acts as a mercenary.. uses. the UN Mercenary Convention by its language applies "without prejudice to .. in any situation: (a) Is specially recruited locally or abroad for the purpose of participating in a concerted act of violence aimed at: (i) Overthrowing a Government or otherwise undermining the constitutional order of a State.
pp 1-31 (2010).g. should have control over their stateʼs armed forces. James Pattison [Lecturer in Politics. 89). it matters that citizens either directly (e. either directly or indirectly. democracy is required for each personʼs interests to be given equal consideration. Outsourcing the responsibility to protect: humanitarian intervention and private military and security companies. including for humanitarian intervention. in particular. citizens. 1 . through a referendum) or indirectly (e.g. pp. which has significant noninstrumental value (see Dahl 1989. UK].10PF6-Wikileaks www. including for decisions to deploy armed force. individuals should have some control over how the armed forces of their state are used because it is their state. through their representatives) have control over their stateʼs armed forces – in this case.. In short. particularly the equal consideration of interests. Instrumentally. ESPECIALLY IN RELATION TO HUMANITARIAN INTERVENTION. 10-11 Why is democratic control over the use of military force and. humanitarian intervention valuable? There are both intrinsic and instrumental reasons. International Theory. In addition. Thomas Christiano (1996) argues that democratic decisionmaking is needed for equality. School of Social Sciences.com Page 87 of 229 DEMOCRATIC CONTROL OVER THE MILITARY IS PARTICULARLY IMPORTANT. Thus. Intrinsically.victorybriefs. the University of Manchester. for humanitarian intervention – because this is an important aspect of individual self-government. p. because this ensures a more considered use of military force. 2..
and torture) and the right to subsistence (including the rights to adequate food. whose enjoyment of human rights needs to be promoted by a PMSC for its intervention to be effective? Most obviously. rape. Outsourcing the responsibility to protect: humanitarian intervention and private military and security companies. First.10PF6-Wikileaks www. where relevant. their enjoyment is necessary for the enjoyment of all other rights (Shue 1996. Greater weight should be given to the enjoyment of what Henry Shue (1996) calls ʻbasicʼ rights. the effectiveness of a PMSC undertaking or assisting humanitarian intervention should be measured by its consequences for individualsʼ enjoyment of human rights. and especially their basic human rights. In its most general form. Two further clarifications are required. creating massive refugee flows – would be ineffective and largely unjustifiable. the effectiveness of a PMSC should be measured over the long-term and compared to other potential courses of action. on the one hand. 10-11 Let me start then by outlining this approach. Such rights are basic in that.victorybriefs. On the other hand. Second. intervention needs to improve the enjoyment of human rights (and especially basic rights) of those in the political community that is subject to the intervention. Accordingly. in addition. pp 1-31 (2010). School of Social Sciences. 18– 20). some weight should be given to the effects of the intervention on individualsʼ enjoyment of human rights in the world as a whole (and. notably the right to physical security (including the rights not to be subject to murder. for instance. 224–5). pp. But. 2. pp. UK]. they are basic in that they are the most morally urgent rights because they protect individualsʼ fundamental interests and welfare. pp. Philippa Foot asserts. Now to the crux of the matter: if a PMSC will be effective at achieving highly beneficial consequences – that is. the University of Manchester. clothing.com Page 88 of 229 UTILITARIAN FRAMEWORK FOR PMCS James Pattison [Lecturer in Politics. International Theory. 1 The longer-term view fits in with the emphasis of the responsibility to rebuild after humanitarian crises (a central part of the responsibility to protect doctrine) rather than a quick in-and-out intervention that could lead to the crisis flaring up again after the intervener leaves. consequentialism ʻidentifies certain states of affairs as good states of affairs and says that the rightness or goodness of actions (or of other subjects of moral judgment) consists in their positive productive relationship to these states of affairsʼ (1988. The Moderate Instrumentalist Approach takes the good ʻstate of affairsʼ that is to be promoted as the enjoyment of human rights (specifically the rights listed in the Universal Declaration). the enjoyment of human rights of the main intervenerʼs home population). and shelter). The importance of this condition is best seen in the negative: an intervention by a PMSC that would cause severe international instability – by. effective at improving the enjoyment of basic human rights of a large number of individuals by tackling (or assisting others to tackle) a serious humanitarian crisis – then its use might be morally justifiable .
the central factor in the moral justifiability of an agentʼs intervention is its effectiveness. and violation of the principles of jus in bello. the international community had taken Executive Outcomes up on its offer of humanitarian intervention. at saving tens of thousands of Tutsi lives.10PF6-Wikileaks www. then. despite the problematic motivation and violation of principles of jus in bello. its employment can be justifiable overall. This is despite its possible inappropriate motive. is that. Suppose. Suppose further that this intervention would have been highly effective at saving thousands of lives. if in the beginnings of the genocide in Rwanda.victorybriefs. despite other moral problems. if a PMSC is highly effective in one of the three roles identified. generally speaking. Given its effectiveness at tackling genocide. for example. It follows that. but Executive Outcomes would have been motivated by profit and could have violated some Rwandan citizensʼ human rights. this intervention would have been justifiable overall.com Page 89 of 229 overall. lack of democratic accountability. . My point.
pp. n39 One of the reasons why employees of private companies wield such control over these types of equipment is that "most military personnel lack the aptitude or length of service to develop the requisite skills" to maintain and operate these machines.-Kent J. IMPLEMENT. n42 Thus. the military will often opt for "package deals. MARK CALAGUAS [Loyola University Chicago School of Law. n40 Furthermore. n38 In addition to collecting and analyzing intelligence [*64] using remote sensors.S. military has found itself increasingly dependent on private contractors as a result of technological innovations by civilians. the KC-10 refueling plane. the M1 Abrams tank.10PF6-Wikileaks www.S. Juris Doctor. advances in information technology have required the military to seek outside help. 58." contracts that bundle private training and support services with the initial purchase of weapons systems. AND MAINTAIN ADVANCED WEAPONS SYSTEMS. the march of technology effectively has enabled the growing reality that military privatization may in fact be a necessity to overshadow the argument that it might be cheaper for the military to use private contractors. “Military Privatization: Efficiency or Anarchy?” 6 Chi. n41 Instead of spending an inordinate amount of money to provide its own personnel with the requisite training. n37 Complex weapons systems maintained by private companies on behalf of the military include: the B-2 Spirit stealth bomber. MILITARY IS DEPENDENT ON PRIVATE FIRMSʼ INGENUITY AND EXPERTISE TO DEVELOP. n36 More generally. civilians also operate the Global Hawk and Predator unmanned aerial vehicles. has endowed non-state entities with greater access to technology than the government. coupled with the rapid pace of development.com Page 90 of 229 AFFIRMATIVE EVIDENCE THE U. . n35 In particular. Int'l & Comp. 60-62 While changing tides in international relations and government spending have fostered the growth of private industry. the F-117 Nighthawk stealth fighter jet.victorybriefs. and the TOW missile system. civilian ingenuity. the government is unable to take advantage of economies of scale in training individuals to operate certain weapon systems because so few of these systems exist. L. the U-2 reconnaissance aircraft. the U. 2006].
fifty thousand contractors.-Kent J. are engaged in the actual rebuilding of Iraq. Int'l & Comp. troop strength in Iraq was about 135. provide support and logistics services. Bechtel and Parsons. the number rose to 152. the impact of private military contractors is most evident in the U. European. “Military Privatization: Efficiency or Anarchy?” 6 Chi. n46 These figures are especially striking considering that in June of 2005 total U.S. reconstruction of Iraq. a British security company charged with guarding oil facilities.000). MARK CALAGUAS [Loyola University Chicago School of Law. n47 .000 (by October 2005. five to ten thousand of which are American. food preparation. Russian. mostly Americans employed by corporations such as [*65] General Electric. forty to seventy thousand contractors. 2006]. and mechanical work. n44 An additional fifteen thousand security contractors are local Iraqis.victorybriefs. pp. all employed by KBR and most hailing from developing countries. Juris Doctor. As of June 2005. and South African.S. n43 Twenty thousand more are non-Iraqi security contractors.10PF6-Wikileaks www. 64-65 Currently. carpentry. such as weather forecasting. n45 In addition.com Page 91 of 229 PMCS HAVE BEEN ESSENTIAL IN THE PROCESS OF REBUILDING IRAQ. 58. L. mostly hired by Erinys.
the interests and consequences implicated in such a sensitive area of public policy demand constant reevaluation of privatization efforts. L. There's better jobs for Navy SEALS to do. . Proponents of private military contracting usually cite cost reduction and efficiency as reasons to outsource a growing number of activities to independent companies. military forces to provide protection to figures like President Karzai of Afghanistan would be a waste of resources because "you need somebody who's very professional and knows what they're doing and [is] experienced and so on. MARK CALAGUAS [Loyola University Chicago School of Law. So if we decide to invade Iraq. . These advocates argue that by hiring professionals to do discrete jobs. .10PF6-Wikileaks www. Doug Brooks of the International Peace Operations Association suggests that utilizing U. very.-Kent J. more importantly. very quickly at a rate we'd never be able to recruit otherwise. pp. you can move your troops more quickly and. if you only have to move the troops. . n62 This line of thinking applies not just to logistical support.com Page 92 of 229 PMCS ALLOW THE US TO MAINTAIN SURGE CAPACITY AND THE ABILITY TO DEPLOY RAPIDLY. You don't need a Navy SEAL to do that.S. be ready to fight . forces may operate at "surge capacity. Int'l & Comp." n63 .S. . For example. 2006]. and you have contractors moving the equipment or contractors taking care of the food and the water and the other essential services. can rapidly gear up personnel and carry out a specific mission for which private contractors have been trained. but also to other functions traditionally thought to be inherently military. In describing the concept of surge capacity. Juris Doctor." meaning that the U.S. Professor Steven Schooner explains: You don't have to have a tremendous number of troops stationed at installations all over North America waiting for the next big military action. “Military Privatization: Efficiency or Anarchy?” 6 Chi. 58. . we can go out and hire contractors. 66-67 Although it is undeniable that the privatization of military services is here to stay for the [*67] time being.victorybriefs. U.
Arguably.-Kent J. the contractors themselves find a way to still utilize their extensive military experience and skills. 2006]. Juris Doctor. . "it's cheaper . n114 Companies also have an incentive to act reasonably abroad because the contractors are dependent on the government for contracts. because private military contractors are registered corporations. pp. 58. MARK CALAGUAS [Loyola University Chicago School of Law. Juris Doctor. n66 PRIVATIZING MILITARY SERVICES ALLOWS THE MARKET TO CORRECT FOR IMPERFECTIONS IN THE CONTRACTING PROCESS. Int'l & Comp. “Military Privatization: Efficiency or Anarchy?” 6 Chi. L. When missions are contracted out. n116 Additionally. L. 2006]. [*75] government. with most being repeat players. Int'l & Comp. because of what it takes to maintain a soldier on active [*68] duty. n117 . 58. PMCS MAY SERVE AS IMPORTANT SOURCE OF MILITARY INTELLIGENCE. which may not otherwise be marketable to mainstream employers. the contractors in fact are subject to some degree of state oversight. As Paul Cerjan explains. “Military Privatization: Efficiency or Anarchy?” 6 Chi. MARK CALAGUAS [Loyola University Chicago School of Law. pp.com Page 93 of 229 PMCS ARE MORE COST EFFECTIVE THAN CONVENTIONAL MILITARY FORCES.10PF6-Wikileaks www. companies working for foreign clients can be valuable sources of intelligence for their home governments.victorybriefs.-Kent J. ." n65 Also. the military need not provide those workers with the facilities and benefits to which regular soldiers are entitled. 74-75 One response to these concerns is that the market should be trusted to correct anomalies in the contracting process. the market should weed out those contractors that habitually engage in misconduct and undermine the goals of the U." n64 Schooner also points out that "the government isn't going to pay pensions for anyone working for a contractor in Iraq.S. in exchange for providing specialized services to the government. 67-68 Related to the idea of surge capacity is the argument that using contractors reduces costs because of reduced overhead expenses. as was the case when the South African military company Executive Outcomes provided information to the Mandela administration regarding activities in Sierra Leone and Angola. n115 In essence.
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INCIDENTS WITH PMCS IN IRAQ LET TO GREATER OVERSIGHT STARTING IN LATE 2007. Major Jeffrey S. Thurnher [Judge Advocate, U.S. Army. Presently assigned as Brigade Judge Advocate, 4th Brigade Combat Team, 4th Infantry Division, Fort Carson, Colo. LL.M., 2007, The Judge Advocate General's Legal Ctr. & Sch., U.S. Army, Charlottesville, Va.; J.D., 2004, The College of William and Mary], “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts,” 2008 Army Law. 64, pp. 81 On 25 September 2007, less than ten days after the Blackwater incident, the DOD issued a memorandum dealing with the management of its contractor force. n214 The memorandum, signed by the Deputy Secretary of Defense, Gordon England, addressed perceived oversight failures. n215 While the memorandum advised commanders to rely on the guidance from DOD Instruction 3020.41, it also outlined new responsibilities for the geographic combatant commanders. n216 The memorandum introduced some groundbreaking expectations on disciplining PSCs. While Secretary England reinforced the idea that commanders should work with the Department of Justice (DOJ) towards punishing individuals under the MEJA, he also sought to have commanders exercise their new UCMJ authority over these PSCs. n217 Secretary England directed his commanders to fully exercise their UCMJ authority n218 over "DOD contractor personnel (regardless of their nationality)." n219 The memorandum authorized commanders to "disarm, apprehend, and detain DOD contractors suspected of having committed a felony offense in violation of the [rules for the use of force] . . . and to conduct the basic UCMJ pretrial process and trial procedures currently applicable to the courts-martial of military service members." n220
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BEGINNING IN LATE 2007, THE DEPARTMENT OF DEFENSE HAS IMPROVED ITS CONTRACTING PROCESS WITH PMCS TO ENSURE GREATER OVERSIGHT, ACCOUNTABILITY, AND TRAINING. Major Jeffrey S. Thurnher [Judge Advocate, U.S. Army. Presently assigned as Brigade Judge Advocate, 4th Brigade Combat Team, 4th Infantry Division, Fort Carson, Colo. LL.M., 2007, The Judge Advocate General's Legal Ctr. & Sch., U.S. Army, Charlottesville, Va.; J.D., 2004, The College of William and Mary], “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts,” 2008 Army Law. 64, pp. 81 After the Blackwater incident, the DOD also sought to improve the actual terms of these PSC contracts. The military attempted to exercise contractual controls by changing the DFARS and by including more specific language about ROE and RUF directly into its contracts. In January 2008, the DOD amended the DFARS to further ensure that PSCs are not violating the law of war. n223 These changes place a heavier emphasis on having the contractor comply with the law of war. n224 Not only does the change add a definition for the law of war that was not present before, n225 it also mandates a two-tiered training program in the law of war for PSCs. n226 At a minimum, all PSCs deploying with the force will be required to attend a basic law of war training program run by the military. n227 Depending on the nature of the assignment, some PSCs must also attend an advanced training session conducted by the judge advocate in the area of responsibility. n228 The fallout from the unlawful use of force incidents, such as the Blackwater one, is almost assuredly the impetus for these new training requirements. Beyond simply requiring training, the changes to the DFARS impose more stringent obligations on PSC officials to report any abuses they observe and to follow the orders of the combatant commander." n229 With this change, PSCs have an affirmative duty to report to the commander any credible "suspected or alleged conduct" which violates the law of war. n230 This responsibility was likely added to prevent reoccurrences of PSCs trying to fix situations involving unjustified uses of force simply by paying the injured party and removing the offending employee from the area in lieu of reporting the incident. n231 The rule also mandates that all DOD PSCs will comply with the combatant commander's "orders, directives, and instructions." n232 The DFARS amendments will give military commanders on the ground significantly more control over DOD PSCs in Iraq. The DOD also began strengthening the terms of its contracts to ensure better accountability over PSCs. For example, in October 2007, a few weeks after the Blackwater incident, the Joint Contracting Command-Iraq issued a solicitation for a contract to secure "trucking and shipping services." n233 The solicitation had the unusual feature of specifying "the rules under which weapons can be used" in
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the contract terms. n234 It explained distinctly that the PSC would not be using the ROE under [*83] which the military forces operate. n235 Instead, it specified that the contractor may only fire a weapon in self-defense or to "prevent life threatening offenses against civilians." n236 By including such strict requirements as those seen above into the actual contracts, the DOD expects to better control the PSCs in its employment.
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IN LATE 2007, THE STATE DEPARTMENT TOOK A NUMBER OF STEPS TO SUBSTANTIALLY IMPROVE REGULATION AND OVERSIGHT OF PMCS. Major Jeffrey S. Thurnher [Judge Advocate, U.S. Army. Presently assigned as Brigade Judge Advocate, 4th Brigade Combat Team, 4th Infantry Division, Fort Carson, Colo. LL.M., 2007, The Judge Advocate General's Legal Ctr. & Sch., U.S. Army, Charlottesville, Va.; J.D., 2004, The College of William and Mary], “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts,” 2008 Army Law. 64, pp. 83-84 As the agency that had hired Blackwater, the DOS faced perhaps the greatest scrutiny of its oversight procedures and the greatest urgency to correct flaws in those procedures. Immediately after the incident, the Secretary of the DOS, Secretary Rice, telephoned Iraqi Prime Minister Nouri Maliki to express her regrets. n237 Secretary Rice pledged to quickly reform DOS procedures to prevent such acts from reoccurring. n238 Within days, the DOS agreed with the Maliki government to cooperate in a joint commission to review the PSC industry. n239 Secretary Rice's initial steps persuaded the Iraqi government to once again allow Blackwater to escort American diplomatic convoys. n240 Those preliminary actions, however, were merely the first of many sweeping changes to the DOS's procedures for overseeing PSCs. Secretary Rice appointed a high-level review panel to examine the department's oversight procedures. n241 On 5 October 2007, Secretary Rice subsequently took swift action on many of their recommendations. n242 Some of the key adjustments to the DOS's practices included the requirement to use audio and video recording devices in each convoy and having a DS agent accompany every convoy. n243 Secretary Rice essentially committed the DOS to dramatically increasing the number of DS officials assigned to Iraq in order to supervise all of these convoy missions. Secretary Rice also enacted recommendations dealing with the RUF that should apply to these contractors. The DOS panel realized it needed to mirror its rules more closely with the military's rules for its PSCs. n244 Specifically, Secretary Rice directed that its PSCs only fire aimed shots, that they be made to exercise "due regard for the safety of innocent bystanders," and that they minimize civilian injuries. n245 These adjustments should help the DOS better control its PSCs. Coordination between the DOS and the MNF-I command was also an area needing to be strengthened. n246 The DOS implemented changes to ensure that its offices in Iraq more liberally exchanged information with MNF-I and coordinated convoy routes with them before the vehicles left the diplomatic areas. n247 This action was intended to appease military commanders who had often complained about being unaware of DOS convoys traversing their area of responsibility. n248 This synchronization of efforts should help minimize those issues in the future.
the [*84] panel suggested the creation of a "Go Team" that would be prepared to quickly proceed to the scene of any escalation of force incident which causes serious injury or death.victorybriefs. . n251 The DOS anticipated that these procedures would aid in what are often the most complex and difficult situations in which to conduct investigations. The DOS sought to enhance the abilities of its investigative forces and improve the likelihood of successful investigations in the future. n249 To that end. n250 The team would gather the preliminary statements and evidence and prepare an initial report.com Page 98 of 229 Investigations are the last major area in which the DOS tried to improve its procedures.10PF6-Wikileaks www.
the most lasting and meaningful changes will likely stem from the dramatic interagency actions that took place after the incident. The most significant of these interagency improvements occurred on 5 December 2007 when the deputy secretaries from the DOS and DOD signed a historic memorandum of agreement (MOA) concerning the handling of PSCs. n262 The agreement provides for close coordination not only before movement but also in the event of a serious incident. The College of William and Mary].S. n264 These new policies should help diminish the likelihood of future blue on white incidents. Presently assigned as Brigade Judge Advocate. J. n261 If the military determines that the chosen route is too dangerous. & Sch. Under the agreement. Colo. . n255 The extensive rules cover procedures for the use of non-deadly and deadly force and for the de-escalation of force. n258 they are significant in that this is the first effort to articulate a single standard for both agencies' PSCs. The DOD identified this change as the most important element to the agreement.10PF6-Wikileaks www. LL. n254 The MOA has many strengths. n253 The MOA is intended to "clearly define the authority and responsibility for the accountability and operations" of PSCs in Iraq. n252 The MOA was signed after a series of high level meetings held in the wake of the Blackwater incident. Fort Carson. 4th Brigade Combat Team. pp. the DOS must comply with the military's recommendations to "alter or abort" the mission. U.. 2004. The MOA also outlines a significant shift in the area of movement coordination and control. 84 Although both the DOS and the DOD separately made adjustments in the manner in which they control PSCs. Army. Charlottesville.S... 4th Infantry Division.victorybriefs. Thurnher [Judge Advocate. U. n256 The RUF require contractors to fire only "well-aimed shots with due regard for the safety of innocent bystander[s]. n259 The DOS is now required to give the military in Iraq advance notice of movement of all its PSC protected convoys. 2007. Va.M. 64.” 2008 Army Law. n260 The notice is expected to be provided twenty-four hours in advance unless a short notice mission is required. n263 This coordination will better allow the military to secure the scene and safely extract the PSCs.com Page 99 of 229 INTERAGENCY RULES CONCERNING PMC REGULATION HAVE SUBSTANTIALLY IMPROVED THEIR OPERATION SINCE LATE 2007.D. The Judge Advocate General's Legal Ctr.. all PSCs operating in Iraq are bound by a specific RUF. Army. Major Jeffrey S. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts." n257 While the rules are fairly similar to the proposed adjustments contemplated by the DOS.
the number of PMCs in the Iraqi theater was reported to have eclipsed the number of U. n18 . Scott M. “Private Force / Public Goods. n9 In a world where privatization has prevailed as a matter of practice. LSU Law Center].10PF6-Wikileaks www." n10 Given the pervasive mistrust toward privatizing national security functions. In practice. The formation of NASA in 1958 introduced the federal government's first agency in which full-time private contractors ultimately outnumbered federal employees. the story is more complicated.S.com Page 100 of 229 THE PRACTICE OF USING PRIVATE FIRMS TO SUPPORT THE NATIONAL DEFENSE INFRASTRUCTURE HAS A LONG HISTORY.S. in theory at least. pp. n17 During 2007 and 2008. remained one of the last areas of government perceived as "inherently governmental" and thus unsuitable for privatization or outsourcing. n14 In 1972. Privatization and outsourcing have saturated U. 858-859 National security functions have. n12 Private contractors have manned and operated U. private contractors held thirty-six percent of all defense-related jobs. n11 The same decade [*859] also witnessed private contractors building the country's first long-range ballistic missiles and designing high-tech military aircraft. 853 (2010) (2010). national security since the Eisenhower administration. n16 One 1996 study concluded that every Department of Defense civil servant was outnumbered by five private contract and grant jobs.S. one would expect that elements of privatization in defense would be the exception rather than the rule. the military hired private contractors to train South Vietnamese troops prior to U. concerns of national security are described as "uniquely illsuited to privatization" and "the last refuge of antiprivatization forces. n15 By 2000. L.S. Sullivan [Assistant Professor of Law. troops.” 42 Conn. Rev.victorybriefs. That is not the case. nuclear missile silos since their inception. n13 In the 1960s. that number had risen to fifty percent. entrance in the Vietnam War.
com Page 101 of 229 THE NOTION OF A STRICT DIVISION BETWEEN PRIVATE AND GOVERNMENTAL FUNCTIONS IS NOT REALISTIC. 853 (2010). Sullivan [Assistant Professor of Law. The Office of Management and Budget's Circular No. n21 Under the Obama administration. pp.victorybriefs. “Private Force / Public Goods. LSU Law Center].10PF6-Wikileaks www.” 42 Conn. Scott M. A-76 establishes the U. L. the question of the wisdom and appropriateness of privatizing elements of national security has fallen to scholars. n20 Neither the OMB Circular nor accompanying interpretation [*860] provides principles useful in illuminating how and why certain functions accrue "inherently governmental" status. As a result. government's policy to proscribe outsourcing activities that are "inherently [g]overnmental" in nature.S." n24 As the "inherently governmental" test means little in and of itself. n19 This test has proven hopelessly unhelpful in clarifying how to determine whether a particular governmental function is appropriate for outsourcing. n23 The intrinsic difficulty of identifying "public" and "private" functions is exacerbated when requiring a further parsing of such functions once they are identified as inherently "public. n22 The open-ended nature of the inherently governmental function test reflects the reality that division between the public and private sphere has always been complicated. Rev. . 859-860 The disconnect between the theoretical admonition of privatizing national security functions and its pervasive practice stems from confused governmental guidelines covering contracting. the administrative prohibition on using contractors for "inherently governmental functions" is inapplicable to security contractors because those contractors are prohibited from engaging in offensive military action. the guiding policy is one of characterization rather than fact.
not to the private provision of such a service. the prevalence of privatized governmental services. Sullivan [Assistant Professor of Law. n42 Traditionally.victorybriefs. necessarily "public" services are those that cannot be denied to people who refuse to pay and. n44 Such a quality would exist where the service in question. L.” 42 Conn. 853 (2010). the drive for privatization is couched in economic terms. However. the interconnectedness provided by contemporary technology. n45 The "public" nature of a service. LSU Law Center]. the expanded markets of globalized business.10PF6-Wikileaks www. Despite the intuitive attraction. 863-864 The quintessential public nature of national security is a fundamental trait of the theoretical critiques of national security privatization. n43 Economically. requires universal coverage and would encourage free riding. however. accepting national security as inherently public would require a principled assessment that lands it irretrievably and impermeably in the "public" sphere. Rev. n41 There has never been a clear division of public and private functions.com Page 102 of 229 A STRONG DISTINCTION BETWEEN PUBLIC AND PRIVATE FUNCTIONS IS ILLUSORY. much like national security. only speaks to a prohibition from public withdrawal in offering the service generally. just as the State can privatize the manufacture of weaponry. do not create a favorable market for private provision. "[i]t could in principle contract out the operation of that weaponry as well." n47 . “Private Force / Public Goods. thus. and the predominant corporatization of the [*864] free-market make such a determination even more challenging. Scott M. n40 Such a position would require a determination that national security is necessarily "public" because its private provision would cause societal harm and evade societal benefit. pp. n46 As a result.
LSU Law Center]. an unmanned aerial drone operator. and a weapons logistical mechanic are impossible to materially differentiate within the dimension of public and private functions. the [*865] conceptual dilemma is the same. 864-865 Deviating from questions of the private provision of goods. Scott M. n48 In making the claim that the privatization of force represents a distinctively public endeavor of discretion. thus engaging in another line-drawing exercise that only exacerbates the theoretical problem.10PF6-Wikileaks www. armed/non-armed. L.” 42 Conn. n49 Couched in different terms such as active/passive. armed) while avoiding contractors considered more benign. or lethal/non-lethal potential.victorybriefs.e. national security privatization commentary has often focused on the ideological argument that privatization should be prohibited (or deeply limited) on concerns of discretion and importance. “Private Force / Public Goods. n51 . Sullivan [Assistant Professor of Law..com Page 103 of 229 CRITICS OFTEN EMPHASIZE THE ROLE OF ARMED CONTRACTORS BUT IGNORE DIFFICULT DISTINCTIONS BETWEEN THESE AND OTHER TYPES OF CONTRACTORS. 853 (2010). pp. n50 Clear lines between a Blackwater guard. scholars have pointed their criticism toward contractors of a lethal nature (i. Rev.
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THE CLAIM THAT PRIVATIZATION OF DEFENSE SERVICES IS AN IMPROPER DELEGATION OF SOVEREIGN AUTHORITY RESTS ON AN OVERLY-SIMPLISTIC CONCEPTION OF SOVEREIGNTY. Scott M. Sullivan [Assistant Professor of Law, LSU Law Center], “Private Force / Public Goods,” 42 Conn. L. Rev. 853 (2010), pp. 865-866 The sovereignty critique suffers from the same failings of public and private line drawing endemic to that of the legal scholarship. It multiplies the complication by also failing to discern forms of sovereignty cession that are commonly accepted as not representing an accompanying loss of control. First, sovereignty in all forms possesses a character of a state right of dominionof law, as authority, and as gatekeeper-the intrinsic nature of which creates a threshold determination of "public" powers residing in the State. n52 Just as legal scholars struggle with the public and private characterization, international law scholars do so in the context of sovereignty as well. The argument that delegation of governmental services represents a forfeiture of sovereign power (in any degree) conflicts with conventional conceptions of sovereignty. n53 Scholars have long accepted that questions of sovereign control reside within the realm of sovereignty gauged by the process and effectiveness of state decision making rather than the formal executor of those decisions. n54 State national security is not an exception. For example, the complete outsourcing of Japan's national security to the U.S. neither legally divests it of other sovereign powers nor demonstrates any functional inability to reassert sovereign powers (including defense) or effectuate the same goals through other policy points. Just as treaty [*866] regimes with reporting requirements and alliances among nations may complicate sovereign rights, the complication is undertaken as part of a presumed state interest in consenting to that exchange.
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REGULATORY ISSUES ARE SECONDARY IN RELATION TO THE FUNDAMENTAL QUESTION OF WHAT ROLE PRIVATE CONTRACTORS SHOULD PLAY IN PUBLIC DEFENSE. Scott M. Sullivan [Assistant Professor of Law, LSU Law Center], “Private Force / Public Goods,” 42 Conn. L. Rev. 853 (2010), pp. 866 The vast majority of scholarship on national security privatization focuses on the specific issues of contractor accountability, which is unsurprising because concerns over privatization have coordinately risen alongside questions of how contractors would face prosecution for high-profile criminal acts in Iraq. n55 The emphasis on contractor accountability has created detailed and creative thinking in resolving regulatory questions emanating from national security privatization. n56 These, however, are secondary issues. Liability frameworks, quality assurance, and military/contractor coordination are amenable to resolution through standard regulation that tells us little about whether and how contractors can legitimately take part in state force operations.
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SIMPLY SHOWING THAT PMCS HAVE A PROFIT MOTIVE DOES NOT MEAN THAT THEIR MOTIVATIONS CONFLICT WITH IMPORTANT NATIONAL SECURITY INTERESTS. Scott M. Sullivan [Assistant Professor of Law, LSU Law Center], “Private Force / Public Goods,” 42 Conn. L. Rev. 853 (2010), pp. 868 The concept of force privatization is rife with highly negative historical connotations due to the popular conceptions of mercenarism or soldiers of fortune. n64 The profit motive concern derives from a belief that private actors are materially (and negatively) different from the public military's citizen- soldier due to the fact that they work for companies that operate for profit. n65 Under this view, these differences manifest themselves through a host of harms, including increased propensity toward violence threatening human rights and larger U.S. policy goals, n66 compromising the integrity of the military, and undermining transparency and democratic norms. n67 There is a core conceptual difficulty that infects all genres of privatizationassessing the impact of motivation. The core difference driving the narrative of empirical claims is situated in the difference between public sector and private sector motives. n68 The private sector [*869] operates for profit. The public sector operates for the public good. n69 Prognosticating as to the effects of these different motivations has been a crucial component of the privatization debate in a wide variety of regimes far afield from that of military force. The effects of differing motivations of public and private gain in privatization are a source of disagreement among scholars. As noted by Gillian Metzger, opponents of privatization typically argue that privatized services are compromised by shortcuts to fatten the bottom line while "privatization advocates maintain that, on the contrary, harnessing the profit motive of private actors and increasing competition in service provision improves the quality and efficiency of services." n70 Privatization scholars have generally acknowledged that the diverging motivations of the public and private sector do not typically, in and of themselves, provide substantial insight as to the effects of privatization in delivering public goods and services. n71 Instead, conclusions as to the impact of motivation are dependent on the observable subsidiary qualities of private actors engaged in delivering public services. In this context, assessing the subsidiary qualities of the private sector requires examining whether the private nature of PMCs infuses negative dynamics into dimensions more closely tied to actions of private force. n72
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THERE IS NO EVIDENCE THAT PMCS CAUSE “BRAIN DRAIN” OR UNDERMINE MILITARY RETENTION. Scott M. Sullivan [Assistant Professor of Law, LSU Law Center], “Private Force / Public Goods,” 42 Conn. L. Rev. 853 (2010), pp. 872 Military culture and the incorporation of private actors in exerting state force are not mutually exclusive. Most contractors acting in an operational capacity have served in the military and are indoctrinated in its principles. Contractors who provide logistical support have spared public soldiers many of an enormous spectrum of mundane tasks of the potato peeling and latrine cleaning variety that defined the World War II era military. To the extent there has been an increase in cynicism in the military and a societal downgrade in honor and prestige afforded to soldiers since World War II, it more likely reflects the rise of an all-volunteer force, the sociological remnants of Vietnam, and a pervasive mistrust of governmental entities, generally. n83 Claims that public soldiers mistrust PMCs in a way that disrupts military culture shortchange the successful incorporation of foreign forces with U.S. forces in multinational operations and the relative separation of PMC duties from that engaged in by regular soldiers. n84 The concern that PMCs and their contractors might fail to perform in dangerous circumstances has not proven to be true in the context of the Iraq War, where nearly all PMCs have deployed as contracted. n85
“Private Force / Public Goods. pp. Data suggest that members of the public military and contractors in all strata of PMCs possess the same motives for joining each institution and utilize similar reasoning for final determinations to stay or leave at the end of their contract. surveys indicated that soldiers who had served in Afghanistan and Iraq predominantly indicated that their intention to leave the military was due to familial concerns (often relating to deployments) and general job dissatisfaction (primarily tied to feeling tied up by bureaucracy). LSU Law Center]. Sullivan [Assistant Professor of Law. 872-873 Empirical data assessing the mindset and relationship of the contractor/soldier relationship also contests the claims of disrupted military integrity and effectiveness. L. soldiers informed researchers that contractors possess similar experience as active duty soldiers." n89 Further. free active duty personnel to focus on core military duties. n86 As [*873] recently as 2004.victorybriefs. Armed Forces faced recruiting and retention shortfalls in the late 1990s. and are equally motivated as soldiers to do a good job. Scott M. 853 (2010). n87 Intent to leave the military in favor of private military service was not even on the radar. studies indicate that "[n]either level of contact nor social comparisons with civilian contractors have a significant direct effect on intention to remain in service for military personnel.S. Rev. AND THAT WORK WITH CONTRACTORS DOES NOT REDUCE MILITARY RETENTION RATES. The increased difficulties in retaining military personnel appear to reveal more traditional concerns than a rush for greener pastures.” 42 Conn. n88 In contrast. All branches of the U.com Page 108 of 229 EMPIRICAL DATA SHOWS THAT MOTIVATION AND RETENTION ISSUES ARE COMMON TO CONVENTIONAL FORCES AND CONTRACTORS. increase effectiveness.10PF6-Wikileaks www. increase efficiency. n90 .
Rev. retirement benefits. and health benefits appear to effectively bridge the perception of economic disparity between them and their private counterparts. 873 While PMCs are paid a higher salary." in other words hurdles of governmental bureaucracy. LSU Law Center]. this disadvantage is ascribed to military structure and. 853 (2010). n91 These non-salary-based advantages of job security.10PF6-Wikileaks www. n93 Interestingly. Scott M. Sullivan [Assistant Professor of Law. “Private Force / Public Goods." n96 . SOLDIERS AND CONTRACTORS HAVE SIMILAR JOB SATISFACTION. L. as a result. public soldiers indicated that they believe that civilian contractors possess greater opportunities for autonomy and an ability to negotiate terms of their employment. the empirical data conclude that while soldiers feel somewhat disadvantaged on issues of pay and job flexibility. n94 Contractors and public soldiers had an identical score in their agreement that their work "makes a contribution to society. pp." n95 Overall. the "social comparisons do not appear to impact service members' feelings toward their civilian coworkers.” 42 Conn. both contractors and soldiers acknowledge that public soldier benefits outstrip those of the contractor community. the primary point of social disadvantage that soldiers feel relative to contractors is "the way the Army's policies are put into practice.com Page 109 of 229 THE PAY GAP BETWEEN SOLDIERS AND CONTRACTORS IS COMPENSATED FOR BY THE MILITARY BENEFITS PACKAGE. n92 Outside of pay.victorybriefs.
such as civilian policing. Rev.10PF6-Wikileaks www.specific training in a shorter time period than typically experienced by public soldiers. of which the public force is otherwise completely bereft. requiring the highest level of training one typically receives in military life. n107 [*876] PMC job preparedness is likely greater than these numbers indicate. weapon maintenance and personal security contractors can sacrifice the breadth of training in order to accumulate and hone a specific skill set required for accomplishing specific job requirements. LSU Law Center]. Over seventy percent of the PMCs employed in Iraq are believed to have served in a Western military institution. pp. n104 As in the public military. Sullivan [Assistant Professor of Law. “Private Force / Public Goods. n106 Private contractor experience also provides crucial experience in military-oriented nation building roles. especially unlawful violence.” 42 Conn. due to the limited scope of services that PMCs provide. The likelihood of both PMCs and public soldiers using violence. however. 853 (2010). many future contractors act as part of their military's special operations forces. 875-876 The data. reflect independently associated variables such as training level and military experience. n105 During the course of their military service. Individuals who have never received formal training within the context of a public military receive more focused. n109 . L. unmanned vehicle operators. PMCs possess varying degrees of training and military experience. Scott M.com Page 110 of 229 PMCS ARE NO MORE PRONE TO UNLAWFUL VIOLENCE THAN CONVENTIONAL SOLDIERS.victorybriefs. does not bear out these claims. Soldiers are purposefully trained on a variety of tasks and responsibilities and then often rotated through numerous different posts. job. IN FACT MANY PMC PERSONNEL HAVE MORE TRAINING THAN THEIR MILITARY COUNTERPARTS. n108 In contrast.
Rev. LSU Law Center]. Scott M.10PF6-Wikileaks www. pp. Sullivan [Assistant Professor of Law. L. n116 .” 42 Conn. “Private Force / Public Goods. n111 Contractors are more than twice as likely to have a post-high school diploma (67% of civilian contractors possess a post-high school diploma. “Private Force / Public Goods. n112 PMCs are also more than twice as likely to be married at the time of their service (73% to 44%) n113 and are almost twice as likely to have children than those in the public military (1. Rev. pp. n110 PMCs serving abroad are on average 54% older than their public soldier counterparts (averaging 40 years old in comparison to 26 years old for public soldiers in the Army). and unlawful violence in particular. 876-877 One might think that the overarching profit-motive aspect of private actors may somehow create selection effects that would render traditional gauges of violence propensity inapplicable. the idea that PMCs work for monetary gain is manifestly different than the motivating factors for public troops. Specifically. compared to 32% of soldiers in the Army). Similarly.com Page 111 of 229 DEMOGRAPHIC DATA SUGGEST THAT PMC PERSONNEL ARE NO MORE LIKELY TO COMMIT UNLAWFUL VIOLENCE THAN CONVENTIONAL SOLDIERS. marital status. Demographic factors of age. 876 Other demographic factors also tend to indicate that PMCs-especially security contractors-are no more likely to engage in unlawful violence in their employment. LSU Law Center]. education. the desire to serve the public good represents an equivalent reason for PMCs to become public soldiers [*877] and enlist. Scott M.victorybriefs. n114 THE IDEA THAT THE PROFIT MOTIVE LEADS PMCS TO SELECT A PARTICULAR TYPE OF EMPLOYEE IS NEGATED BY THE FACT THAT PROFIT IS ALSO A COMMON MOTIVATION FOR CONVENTIONAL SOLDIERS. 853 (2010).” 42 Conn.2% to 0. Sullivan [Assistant Professor of Law. BOTH ALSO SHARE THE DESIRE TO SERVE THE PUBLIC GOOD. L. and the presence of children correlate with a lower likelihood to engage in crime generally. n115 Such analysis ignores empirical evidence that pecuniary gain also serves as the predominant reason for individuals to join (and remain in) the armed forces. 853 (2010).64%).
” 42 Conn. n145 . “Private Force / Public Goods. and less reliable than those in an all-volunteer army. Deputy Secretary of Defense Gordon England noted that "contractors are vital in an all-volunteer military force. 853 (2010). L. including lower wages. LSU Law Center]. n140 In 2006. “Private Force / Public Goods. n137 In his testimony before the Senate Appropriations Committee. to technological expertise the American government cannot duplicate. "public opinion has expressed itself clearly against conscription. pp. seventy percent of the American public indicated that they oppose reinstating the draft. Sullivan [Assistant Professor of Law. n143 Their use is inefficient and potentially makes armed conflicts longer and more likely. Rev. Scott M. in part. n144 Further. 881-882 The increasing advancement and dependence on technology requires states to find highly trained individuals to run and maintain the machinery of war. n141 In the words of one commentator. L. and economists." which is due. 853 (2010). 882-883 The forced conscription of soldiers to fight in war is more unpopular now than ever before. LSU Law Center]. pp. data indicate that a draft leads those forced into service to civilian harms. WHICH IS BOTH DEMOCRATICALLY UNPOPULAR AND CREATES A LESS EFFECTIVE FIGHTING FORCE.” 42 Conn.10PF6-Wikileaks www.victorybriefs. Sullivan [Assistant Professor of Law. The correlation between technology and military privatization is underscored by evidence that the more technologically advanced the state army. PMCs with employees specialized in various weapons systems are required for public troops to operate effectively. n139 PMCS PERMIT STATES TO OPERATE AN EFFECTIVE MILITARY WITHOUT RESORTING TO CONSCRIPTION. political scientists. the greater degree that army has been privatized. Experts have long concluded that conscripts are less motivated. less education. n138 From machine guns to infrared [*882] sensors and transport planes to Predator drones. less creative. less educated." n142 The public rejection of conscription mirrors its distrust by military professionals.com Page 112 of 229 PMCS ARE NECESSARY TO DEPLOY ADVANCED WEAPONS TECHNOLOGY. Scott M. and pervasive opportunity [*883] costs. Rev.
” 42 Conn. the term could be updated to "Somalia Syndrome. Scott M. Termed "Vietnam Syndrome" in the United States. 883 The memories of misbegotten military adventures over the course of the twentieth century has left the Western world with a pungent distaste for the death of public soldiers. LSU Law Center]. L.S. soldiers as far removed from harm's way as possible.victorybriefs. n146 The concept of force protection guides Western military actions today. including more traditional protective technology of body armor and extending to billions of dollars spent on stealth technology. and unmanned drone aircraft designed to keep U. “Private Force / Public Goods. n148 . especially in conflicts not considered vital to the national interest. n147 Its effects manifest in a large percentage of budgetary costs.10PF6-Wikileaks www. 853 (2010). based on public tumult over U." referencing America's horror and subsequent quick withdrawal from Somalia following the public celebration in the streets after the brutal killing of eighteen American servicemen. pp. involvement in the Vietnam War.com Page 113 of 229 MILITARY FAILURES IN THE 20TH CENTURY HAVE GENERATED A STRONG PUBLIC DISTASTE FOR MILITARY CASUALTIES.S. Rev. Sullivan [Assistant Professor of Law. unmanned all-terrain vehicle robots.
In a study performed by Gary Becker and Yona Rubinstein. Scott M. 883-885 Never before have the U. The justification was moral-not legal or strategic. simply sparked by increased sensitivity to gravity of risk.S. n152 The trend of international interventions for humanitarian reasons is also evidence of an increasingly expansive view of U. President Bush certified fighting narcotics trafficking in Guatemala as a "vital national interest" and opened the avenue for force and military financing because a strong organized crime apparatus in the country could weaken Guatemalan governmental institutions. prevalent among industrialized states. have led to a generalized urgency to possess the ability to project military power in short order.10PF6-Wikileaks www. n150 Globalization has caused commercial interests to become completely intertwined with a perception that far away risks possess national security implications at home. 853 (2010). and clearly possessed neither the ability nor desire to engage in fighting with the United States. In February 2003. while simultaneously reducing the capacity to do so [*885] as other conflicts arise. n154 These normative movements. there was no clear indication that the Serbian regime possessed any designs against other countries.” 42 Conn. national security concern has expanded. thus harming the domestic economy. Perception of increased need for strong military force is not. The result is a demand for military capabilities that can be delivered now. The public perception of which risks substantively constitute a U. At the time NATO troops began air strikes against Serbia. Sullivan [Assistant Professor of Law. commercial cycles in Israel would be disrupted due to terrorist attacks inside Israeli borders. LSU Law Center]. and other nations so pervasively viewed their own national interest at risk from the isolated actions of small groups thousands of miles away. n149 Neither the certification nor any administration official contend that the organized crime referenced in [*884] Guatemala possesses the means or motive to harm the United States other than supplying it with highly-demanded drugs. This phenomenon is not unique to the United States. interests requiring military action.com Page 114 of 229 THE PERCEIVED GLOBALIZATION OF NATIONAL INTERESTS HAS SPURRED THE NEED TO DEVELOP THE CAPABILITY TO RAPIDLY PROJECT MILITARY FORCE. however.S. n151 Even minor attacks would cause substantial business losses because people became less inclined to leave their homes and engage in commercial transactions. .S. Rev. “Private Force / Public Goods.victorybriefs. pp. n153 The justification for armed intervention was couched as an affirmative responsibility to preclude an ongoing genocide. L.
Privatization increases the quality and quantity of labor from which the government can draw. augment. 885 The transition to an all-volunteer force in the United States (and other democracies) has changed the face of how the military is organized and how it recruits. or supersede the government's performance of services.” 42 Conn. the private sector offers several dimensions in which it can enhance. n156 Privatized force also provides the military with secondary retention benefits that allow the utilization of military-generated skills that would otherwise be lost. Scott M. Rev. “Private Force / Public Goods. thus enhancing the quality of services through intellectual diversity and specialization. LSU Law Center]. The United States enjoys a more professional. n157 . n155 Despite this. pp.victorybriefs. L. educated. Sullivan [Assistant Professor of Law. and skilled military than ever before.10PF6-Wikileaks www. 853 (2010).com Page 115 of 229 PRIVATIZATION INCREASES THE QUALITY OF LABOR AVAILABLE TO GOVERNMENT AND ALLOWS THE FUNCTIONAL RETENTION OF TRAINED PERSONNEL WHO WOULD OTHERWISE MOVE OUT OF THE SECURITY SECTOR ALTOGETHER.
THE FACT THAT GOVERNMENT NEED NOT UTILIZE PMCS IN PEACETIME RESULTS IN NET COST SAVINGS OVER TIME.” 42 Conn. or as a conflict winds down. LSU Law Center]. 853 (2010). however.10PF6-Wikileaks www. is not always at war. half assumed to be peacetime. Scott M. n167 Over a period of ten years. “Private Force / Public Goods. L. pp.com Page 116 of 229 THOUGH PMCS MAY BE MORE EXPENSIVE THAN CONVENTIONAL FORCES IN THE NEAR TERM. during peacetime the public [*887] soldier's cost is approximately cut in half. The United States has spent over $ 85 billion for the work of military contractors since the beginning of the war and the tab was expected to climb to over $ 100 billion by the end of 2008. n168 . 885 Empirically. while contractors can be immediately dismissed. Those soldiers continue to draw a full salary and accrue benefits packages. judging whether the use of PMCs is economically efficient depends entirely on the frame of reference. As public soldiers must be trained and remain prepared for action at any time. the privatization of security services alone is estimated to save the government over one billion dollars.victorybriefs. the costs to support a soldier and a contractor in the field during wartime are roughly the same. they cannot be discarded as the need for their services wanes. the State can reduce its usage of PMCs in a way unavailable with public soldiers. n165 The State. Sullivan [Assistant Professor of Law. At the conclusion of a conflict. Rev. n166 Because public soldiers remain in the force structure much longer. reducing costs to a negligible amount. n164 According to a recent Congressional Budget Office Report.
LSU Law Center]. pp. use of private sector actors can enhance the effectiveness of the military through contracting with corporate entities that have collected a labor force already skilled in the national security functions required by the government. Intelligence contractors engaged in electronic surveillance and open source intelligence gathering combine technological expertise and analytical skills with proven effectiveness.10PF6-Wikileaks www. The specialization of skills necessary to run military machinery has reached the point where not only is it prohibitively expensive to do within the military. The need for special expertise in intelligence is acute. Scott M. Specialization and expertise benefits run across the spectrum of privatization services-technological expertise impacts all aspects of the military. Rev. n170 PMCs specializing in security operations operate databases that allow them to recruit from contractors with particular skills or particular experiences matching the type of mission for which they were contracted to perform-i. Under these circumstances especially.. This is even more so the case when the need for such skill sets are temporary and arise unpredictably. Sullivan [Assistant Professor of Law.e. n169 Public pay scales are highly fixed and resist market forces even in circumstances in which the skill set sought by a civil employee is both objectively and subjectively highly valued.” 42 Conn. hire. 853 (2010). or deploy these different skill sets as they might be needed. unsurprisingly. but private contractors themselves must highly specialize their skill set to be able to effectively address the complexities of the technology they maintain. As a result. 887-888 Specialized skills are expensive to produce and create value in their holder that is redeemable in the private sector in a way that is impossible to replicate through public employment. n173 . n171 The greatest numbers of private contractors provide logistical [*888] and technological support to the public military. Contractors operating in human intelligence gathering often possess skills in domestic law enforcement or foreign language skills. n172 The bureaucratic strictures of the public sector do not allow the government the flexibility to identify. L. “Private Force / Public Goods.victorybriefs. language or security details for government officials. private contractors often possess expertise that is both highly demanded and financially under-compensated in the public sector.com Page 117 of 229 PMCS ARE A MORE COST-EFFECTIVE WAY TO DEPLOY PERSONNEL WITH SPECIALIZED SKILLS.
combat-oriented training and preparation is a consistent factor in soldiers reporting high job satisfaction.victorybriefs. but deadly. Similarly.” 42 Conn. 888-889 Privatizing ancillary national security functions allows the military and its soldiers to focus on developing and executing its core competencies. Rev. IMPROVING EFFECTIVENESS AND JOB SATISFACTION. “Private Force / Public Goods. Sullivan [Assistant Professor of Law. n177 . pp. n174 PMCS FREE UP CONVENTIONAL FORCES TO FOCUS ON THE MISSION. 888 The increased lethality of non-state insurgents and terrorist organizations enhances non-state actors' ability to influence state action through isolated. pp. The ability to hire and deploy contractors quickly not only provides a needed surge capacity in the midst of armed conflict. L. incidents of force. Scott M.com Page 118 of 229 PMCS SUPPORT NEEDED SURGE CAPACITY AND FORCE DIFFUSION. the more the military benefits through superior soldiers and superior planning. n176 Studies indicate that the ability to focus on non-logistical. and execution of war [*889] plans. Identifying these decentralized threats is difficult. 853 (2010). Rev.” 42 Conn. effectively countering them requires a degree of deployment flexibility and expediency that would be enormously difficult and expensive for the public military to attain.10PF6-Wikileaks www. but also facilitates the deployment of a small number of troops to parts of the world where the State has little presence. n175 The greater the ability of the military to focus on preparing and planning for combat and conflict contingencies. private contractors do not have to be rotated out of theater as do public soldiers. Scott M. Sullivan [Assistant Professor of Law. “Private Force / Public Goods. LSU Law Center]. 853 (2010). Thus. L. the government can hire fewer contractors and receive more full-time-equivalent service for their deployment than is possible with public troops. LSU Law Center].
n178 Similarly. . 889 The privatized force industry's ability to draw personnel from a variety of nationalities and backgrounds affords the State opportunities to diversify its presence in a way that more closely matches indigenous culture than would public force. LSU Law Center].victorybriefs. 853 (2010). “Private Force / Public Goods. incorporating the indigenous population into military operations is an effective way to reduce tensions with the citizenry. This tension may be uncomfortable when soldiers are placed in allied countries.com Page 119 of 229 THE USE OF INDIGENOUS PMCS MAY REDUCE TENSIONS IN FOREIGN COMBAT THEATRES AND IMPROVE COST EFFECTIVENESS.” 42 Conn. however. There is usually tension whenever a state deploys its military in another country. Rev. but can be deadly in the context of a military occupation. the economic benefits that follow local contracting practices may reduce tension with the indigenous population.10PF6-Wikileaks www. In either circumstance. Scott M. Sullivan [Assistant Professor of Law. pp. L.
n184 After Coalition troops surrounded Tora Bora.” 42 Conn.victorybriefs. the U. LSU Law Center]. but numerous reports also indicate that local fighters facilitated the flight of the very leaders they were tasked to capture. troops. Rev.S. n187 . pp.S. Scott M. In the past twenty years.S. n181 Kosovo. n185 In addition to such specific operational breakdowns. n182 and others. n186 Proxy fighters offer a source of force that requires less commitment of human and financial American resources than the deployment of an equivalent number of public soldiers or PMCs. the U. made the decision to use its Northern Alliance proxies to complete the final stage of the mission and attempt to capture or kill the al-Qaeda leaders that remained. 889-891 The U. the U.S.com Page 120 of 229 THE ALTERNATIVE TO PMCS IS THE USE OF PROXY FIGHTERS. n179 Iraq. L. n183 Following September 11. Sullivan [Assistant Professor of Law. 853 (2010). financing of a variety of non-state militias has created numerous paramilitaries with regional control that match or exceed the power of the Afghani central government thus compromising the very survival of the regime installed following the fall of the Taliban. proxy fighters also possess an intrinsically local character that offers a substantially greater degree of domestic and international legitimacy than [*891] the external use of force. n180 Iran. has a long history of utilizing proxy fighters in order to exert influence abroad without resorting to sending U.10PF6-Wikileaks www. the area believed to contain a number of high-level Taliban and al-Qaeda leaders. again relied on proxy fighters in Afghanistan to strengthen and hold their regional presences and thus reduce the pressure on U.S. Colombia.S. This was undoubtedly a major factor in the U. has financed and aligned itself with proxy fighters in [*890] Afghanistan. WHICH ARE MUCH LESS EFFECTIVE. Not only was the mission a failure. decision to use Afghan proxies at Tora Bora. and Coalition troops to occupy the whole country. Even more importantly. the U. “Private Force / Public Goods.S.S.
Scott M. proxy fighters are almost completely outside the scope of control of the sponsoring state as it relates to the manner in which they use violence to achieve their ends. LSU Law Center]. . n189 This absence of control extends to all forms of accountability of the sponsoring state to seek to rein in their proxy forces in response to democratic pressures. the less likely that they will ultimately be able to retain power once they gain control of the land they seek to gain. who represent a likely alternative in the market for non-state force. n188 Second. In other words. “Private Force / Public Goods. Sullivan [Assistant Professor of Law. Rev.10PF6-Wikileaks www. 853 (2010).com Page 121 of 229 THE USE OF PROXY FIGHTERS UNDERMINES LEGITIMACY MORE THAN PMCS BECAUSE WE HAVE LESS CONTROL OVER THEIR ACTIONS AND THEY REQUIRE MORE EXTERNAL SUPPORT.victorybriefs. n190 Supplementing public force with PMCs offers enormously greater transparency and normative advantages compared to using proxy fighters. pp. This is especially true when proxy fighters are in contexts in which the participation and support of the sponsoring state is achieved covertly a la Iran-Contra. the greater the need for external support. First. L. the legitimacy gain through the use of proxy fighters is compromised the more that the external funding and support is required.” 42 Conn. 891 There are two major difficulties with proxy fighters as a legitimate choice of force for states.
” 42 Conn.10PF6-Wikileaks www. An appropriate analysis of national security privatization creates a direct comparison between the benefits accrued by privatization against the potential harms unique to privatization. where they are trained to conduct their interrogations in accordance with heavy domestic restrictions. L. Rev. AS WITH THE EXPERIENCE THEY BRING TO THE MILITARY INTELLIGENCE FIELD.victorybriefs. but moreover. n199 That experience is usually gained through work in the domestic criminal law enforcement realm. . Sullivan [Assistant Professor of Law. the legislation ignores the efficacy of bringing private sector benefits to bear on a very public problem. Private intelligence contractors often possess more experience in interrogation than their military counterparts. 893 The wisdom of legislation like RAIA depends on a conclusion that privatized national security providers (either as institutions or through individuals) are "different" from public troops in a way that accrues negative consequences. Scott M. “Private Force / Public Goods. LSU Law Center]. OFTEN TIMES THEIR BENEFITS OUTWEIGH THEIR ADVANTAGES. pp. n200 A failure to address efficacy gains of the privatization represents a failure to understand the parallel tracks of efficiency in relationship to accountability. These intelligence contractors also tend to have specialized language skills that make their services highly profitable and portable. Not only is the data supporting this suspect.com Page 122 of 229 IDENTIFYING THE POTENTIAL HARMS OF PMCS IS NOT ENOUGH. 853 (2010).
10PF6-Wikileaks www. much of the information one might request is covered by the national security exception of the statute. should not be overstated. L. LSU Law Center]. “Private Force / Public Goods.” 42 Conn. 895 The transparency and enforceability of democratic norms in this context. n208 . Sullivan [Assistant Professor of Law. such as combat zones. While the Department of Defense is formally encompassed within the ambit of FOIA. pp. Rev. present obstacles inherent to contemporary military regulations. even in circumstances where a plausible security concern is difficult to discern. however. traditional mechanisms of democratic accountability are compromised and often purposefully evaded. n206 The public military is also insulated from formal accountability mechanisms as a policy matter due to its mission of national security. both the CIA and the Department of Defense retain wide latitude in classifying documents at varying levels of security clearances with only cursory. Similarly. public military action often takes place in areas that provide limited and challenged access to independent observers.com Page 123 of 229 THE PUBLIC MILITARY ALSO LACKS SUBSTANTIAL TRANSPARENCY. such as the prohibition of photographing American coffins being transported back to American soil or photographic restrictions of "identifying characteristics" of detainees at Guantanamo Bay. 853 (2010). and typically deferential. n205 To start. media restrictions imposed by the military during wartime. Scott M. review in limited circumstances. n207 Similarly.victorybriefs. Viewing the intrinsic nature of national security as a realm in which the retention of classified information is considered of paramount importance.
“Private Force / Public Goods. but at this time. 853 (2010).victorybriefs. Similarly. than the public military. Scott M. Congress possesses the unquestioned ability to require PMCs to engage in more meaningful disclosures for the purposes of securing and maintaining contracts with the government. Rev. Cases brought against PMCs for civil liability (other than fraud) have not yet proven successful in overcoming the industry's defense of acting on behalf of the government. however. n213 The formal impositions of disclosures designed to encourage transparency of PMCs remains. pp. n214 For purposes of this Article. within the purview of the legislative and judicial branches. both by the public at large and Congress. 896-897 As noted above. however. LSU Law Center]. n212 The question of corporate criminal liability against PMCs [*897] for the misdeeds of their employees remains a possibility. Sullivan [Assistant Professor of Law. the judicial interpretation concerning "proprietary" information is within the purview of the courts. PMCs are subject to less scrutiny. even fully discounting these formal avenues of information disclosure.com Page 124 of 229 WHILE THE TRANSPARENCY OF PMCS IS A CONCERN. In one sense.10PF6-Wikileaks www. remains academic. as a formal matter. the most relevant question is.” 42 Conn. L. n211 Moreover. many of the same cultural and institutional forces in the public military are at play in the context of PMCs. CONGRESS AND THE COURTS HAVE THE POWER TO REQUIRE MORE SUBSTANTIAL DISCLOSURES THAN THEY CURRENTLY DO. does the public possess the requisite information to make judgments as to the "appropriateness" of PMC action empowered by their elected officials? . Congress does not possess the more detailed oversight structure over PMCs that it possesses over the public military. PMCs are not subject to FOIA requests nor can they typically be ordered to produce "sensitive" commercial information in the context of civil suits.
In the words of one company official." n215 . The public is uninterested in Blackwater contractors who guard State Department personnel until those contractors are engaged in an incident deemed inappropriate. Reputational concern extends to all of a company's operations no matter the location or client.10PF6-Wikileaks www. 897 On the other hand. their name is only called when something has gone wrong. LSU Law Center].victorybriefs.” 42 Conn. Thus.com Page 125 of 229 PMCS ARE MORE INCLINED TO DISCLOSE BECAUSE THEY ARE SENSITIVE TO THEIR COMMERCIAL REPUTATION. Sullivan [Assistant Professor of Law. we get a cold in Asia. “Private Force / Public Goods. Rev. PMCs are repeat economic actors. L. People do not care about whether a prison is privatized if it is functioning properly. "[w]hen we sneeze in Africa. Scott M. but also whether they perform that work in a way that does not draw negative publicity to their sponsor. The success of their work is judged not only by the effectiveness of their work. there are non-formalist influences on institutional behavior that make PMCs more inclined than the public military to disclosure. PMCs are highly responsive to questions impacting their larger commercial reputation. The most substantial is the moderating and disciplining effect of the commercial market that encourages disclosure and the protection of reputation as a legitimate entity. Like an umpire in the World Series. pp. 853 (2010).
shared by contemporary public [*898] militaries (largely reflecting the norms of their surrounding societies).com Page 126 of 229 PMCS ARE SHAPED BY THE NORMS OF THOSE WHO HIRE THEM BECAUSE THEY HAVE TO RESPOND TO THE DEMANDS OF THE MARKET." n221 The opinion of the contractors acting as interrogators was much more likely to reflect a larger concern that implicated the entire company. have greatly influenced how PMCs view the currency of their reputation. LSU Law Center]. Institutional concerns.10PF6-Wikileaks www.victorybriefs. their blame is individualized and generally perceived by the public as not implicating the military as a whole. one private security firm refused to engage in offensive operations against the country's rebels due to a concern that the firm would be accepting a "mercenary" tag that would affect future employment with large Western states and the U. When public soldiers engage in an apparent unlawful shooting of civilians.N. Rev. the United States and major international non-governmental organizations like the U. as in Haditha. n220 A similar incident by PMC personnel is perceived as evidence of a larger socialized problem with the use of contractors. In the context of the Abu Ghraib scandal. n219 The possibility of a negative incident tainting a contractor is much higher than in the public system.N. 853 (2010). polls indicate that the public accepted the explanation of military and civilian assertions that the acts of prison guards reflected "a few bad apples.” 42 Conn. n217 The largest customers of PMCs and the standards that they require in the execution of their contracts shape PMC standards. n216 In Sierra Leone. . 897-898 The hiring process of PMCs reflects a concern that the personnel utilized by those companies satisfy the highest standards of professionalism. n218 In the context of the current security situation. L. pp. Sullivan [Assistant Professor of Law. control corporate operating and performance standards. Scott M. “Private Force / Public Goods.
Johns Hopkins University.victorybriefs. Candidate 2010. the FCA alleviates some of the evidentiary and investigative problems associated with governmental evaluation of contract performance from thousands of miles away.A. And The Private Military Industry. 198 As with any business. as the FCA allows private parties to bring suit on behalf of the government and to share in a portion of any damages won from the suit.S. Boston University School of Law. and thus must consider the financial implications brought by contract and tort claims. the case reflects the potential ability of domestic contract law to serve as a check on PMC conduct. a private military company makes decisions with an eye toward the bottom line. n112 The False Claims Act ("FCA") has emerged as a tool to regulate PMC contracts with the U.” 28 B. International Law.J. government. International Studies. 181 (2010). n114 Although a federal judge in the Eastern District of Virginia ultimately overturned the verdict and granted summary judgment for the defendant contractors.U. Intʼl L.10PF6-Wikileaks www. 2007]. “Note: Going To War With The Army You Can Afford: The United States.D. pp.. Adam Ebrahim [J. n113 By allowing individuals to bring suits. History. B.com Page 127 of 229 EXISTING CONTRACT LAW PROVIDES A VIABLE MEANS OF CHECKING PMC ABUSES. n115 . For example. a PMC contracted to provide security at the Baghdad International Airport. in 2006 a jury issued a $ 10 million verdict for fraud and theft under the FCA against Custer Battles.
As it forms the basis of later agreements and has widespread international support. even taking the UN Mercenary Convention into consideration. international law has crafted a narrow definition of mercenaries and has endeavored to condemn and ban their conduct in a limited set of circumstances.10PF6-Wikileaks www. And The Private Military Industry. pp. n212 . PMCs. in their present form.victorybriefs. Johns Hopkins University. what is important is that at least one defense can readily be made by most members of the modern private military industry.com Page 128 of 229 THERE IS NO INTERNATIONAL LAW BANNING MERCENARIES. Intʼl L.J. 210 Much of the international law on mercenaries . n211 While not every private contractor will be able to employ every defense.D. the OAU Convention.A. n210 By using a six-element definition of mercenaries in Article 47. Candidate 2010. 181 (2010). B.” 28 B.namely Protocol I. History. AND PMCS DO NOT FIT THE DEFINITION OF “MERCENARY” ANYWAY. International Studies. n209 Rather.deals with defining mercenary status and banning mercenaries in certain situations. n208 Contrary to popular belief.U. the Protocol I definition remains the best classification of a mercenary in international law. 2007]. Boston University School of Law. “Note: Going To War With The Army You Can Afford: The United States. Adam Ebrahim [J.. and the UN Mercenary Convention . the UN Resolutions. do not fit this definition. nor do they act in prohibited areas. there exists no ban on mercenaries in international law. Protocol I simultaneously offers six defenses to the claim that PMCs should be considered mercenaries. International Law.
Boston University School of Law. 181 (2010). recent usage suggests that PMCs can provide humanitarian intervention at a lower cost than the public sector.. Adam Ebrahim [J. when faced with a purely humanitarian situation (in which the intervening state has limited strategic interests). International Law. Candidate 2010. n247 .U. B. First.000 per day. “Note: Going To War With The Army You Can Afford: The United States. Intʼl L.victorybriefs.” 28 B. History. or another actor seeks to intervene in a future humanitarian [*216] conflict.A. 2007]. And The Private Military Industry. n245 If such a norm does in fact develop. PMCs appear well-suited to meet each of these challenges. restore order. Second.10PF6-Wikileaks www. n246 The company estimated that a wholly privatized six-month intervention at the outset of the genocide would cost $ 600.D. and provide safe-haven for refugees. a domestic population would likely favor sending a private army rather than putting "the troops" in harm's way in an unessential war.J. pp. International Studies. or if the United States. specifically as to whether an emerging customary norm supports humanitarian intervention. Putting aside the extensive legal debate. 215-216 Much has been written on the legality of the NATO campaign. Johns Hopkins University. the private military industry could potentially handle the operation. NATO. the PMC Executive Outcomes considered contracting with the United Nations to intervene in Rwanda to stop the genocide.com Page 129 of 229 PMCS ARE WELL EQUIPPED TO ALLEVIATE THE PRINCIPLE BARRIERS TO HUMANITARIAN INTERVENTIONS. two obstacles stand in the way of humanitarian intervention: political will and financial cost. compared to the eventual UN intervention which cost roughly $ 3 million per day and did not commence until the genocide and fighting had spiraled out of control. In 1994.
victorybriefs. the University of Manchester. 1 In addition.com Page 130 of 229 THE USE OF PMCS COULD OVERCOME MANY OF THE TRADITIONAL BARRIERS TO HUMANITARIAN INTERVENTION. UK]. PMSCs could bolster other agentsʼ capability. first. Second. because of military capacity. PMSCs could act as a force-multiplier. Using PMSCs could overcome both problems by.W. undertaking intervention in places where other agents are loath to act. have been privatised. . Michael OʼHanlon and P. even when other agents are willing to act. 2. International Theory. thereby circumventing ʻSomalia Syndromeʼ (the notion that states are unwilling to put their soldiersʼ lives on the line for humanitarian intervention after the US experiences in Mogadishu in 1992). Current agents often lack the willingness to intervene because of their reluctance to commit troops to save the lives of those perceived to be distant strangers and. Singer sum up the idea: The rise of this industry has prompted calls for a twenty-first century business solution to the worldʼs twenty-first century human security problems. thereby enabling them to intervene. goes the reasoning. School of Social Sciences. why not turn peacekeeping over to the private market? (2004. from prisons to social welfare. 91). greatly increasing the capacity of other agents (such as the UN and AU) to intervene. Outsourcing the responsibility to protect: humanitarian intervention and private military and security companies. 4-5 Employing PMSCs for humanitarian intervention has some immediate appeal. pp. Using private companies to undertake humanitarian intervention would not require states to risk their own soldiers. p. If most other formerly state-run services. more practically. pp 1-31 (2010). James Pattison [Lecturer in Politics.10PF6-Wikileaks www.
Outsourcing the responsibility to protect: humanitarian intervention and private military and security companies. Indeed. Brooks 2000. International Theory. James Pattison [Lecturer in Politics.com Page 131 of 229 PMCS ARE ABLE TO MOBILE QUICKLY WITH WELL-TRAINED PERSONNEL TO DIRECTLY INTERVENE IN HUMANITARIAN CRISES.victorybriefs.. 5-6 More specifically. The first would be to undertake humanitarian intervention by itself. . 2. pp 1-31 (2010). This is because PMSCs can target their recruitment at the most capable personnel and scour markets for the best equipment (Singer 2003b.g. the University of Manchester. It could mean quick. 4). This would involve another agent funding intervention by the company. School of Social Sciences. p. decisive. pp. The potential benefit of employing a PMSC in such a role is clear. and cheaperʼ than intervention by other agents.10PF6-Wikileaks www. and effective intervention when other agents are unwilling or unable to intervene themselves. The PMSC would stabilise the local situation by removing any spoilers and then hand control to local forces or a more traditional peacekeeping force (Gantz 2003). some industry proponents (e. Brooks and Chorev 2008) claim that such an intervention would be ʻfaster. there are three roles that a PMSC could play. better. UK].
Since a number of agents of intervention have significant problems with these functions.victorybriefs. James Pattison [Lecturer in Politics. International Theory. 95).com Page 132 of 229 PMCS COULD BE USED TO FILL IN RESOURCE GAPS THAT CURRENTLY EXIST FOR NATIONS OR INTERNATIONAL ORGANIZATIONS WILLING TO INTERVENE IN HUMANITARIAN CRISES. 184). James Pattison [Lecturer in Politics. with the combat capability of the troops that are contributed. UK]. Outsourcing the responsibility to protect: humanitarian intervention and private military and security companies. A PMSC could provide logistics. Alternatively. it could offer a rapid reaction capability or provide an elite force to tackle challenging combat situations (Singer 2003a. the University of Manchester. But the range of services offered by PMSCs means that these agents (such as the EU) could boost their military capabilities without being dependent on strong support from the US. Outsourcing the responsibility to protect: humanitarian intervention and private military and security companies. PMCS COULD PROVIDE SUPPORT SERVICES TO MAKE HUMANITARIAN INTERVENTIONS MORE EFFECTIVE. regional organisation. 6 The second role would be to provide troops to bolster or to fill gaps in another agentʼs intervention. Given the difficulties that the UN and regional organisations have. firstly. p. or the UN. School of Social Sciences. A further benefit of employing a PMSC in one of these roles is that it could make humanitarian intervention easier to undertake. for instance. The potential benefit of employing a PMSC in such a role is again clear. UK]. PMSC personnel could be used. pp. to ensure that a UN mission has the number of troops required by its mandate. pp. secondly. School of Social Sciences. intelligence. the University of Manchester. 2. 2. and other support services to bolster the capability of a state. p. lift-capacity. Many agents have previously had to rely heavily on US military assistance to undertake humanitarian intervention because of their lack of capacity (particularly in regard to technical and lift capacity). which has not always been forthcoming. International Theory. but instead support services to assist another agentʼs intervention.10PF6-Wikileaks www. employing a PMSC in one of these roles could make a large contribution to the success of the intervention (see OʼHanlon and Singer 2004. pp 1-31 (2010). 1 . in securing sufficient troops and. 6 The third role would not involve direct combat operations. pp 1-31 (2010). PMSC personnel could ensure that these agents are at full-strength and able to intervene effectively. training.
189). respect for human rights) on the world stage. As such. 24). there are three.com Page 133 of 229 IT IS OFTEN IN A STATEʼS NATIONAL INTEREST TO ENGAGE IN HUMANITARIAN INTERVENTION. allowing states that wish to tackle a humanitarian crisis a politically and militarily viable way of doing so. freedom.10PF6-Wikileaks www. On a wider. UK]. School of Social Sciences. ideational definition of national self-interest. James Pattison [Lecturer in Politics. p. 7-8 Moreover. Even on a narrow notion of self-interest. PMSCs could therefore be a useful compromise. pp. the University of Manchester. Outsourcing the responsibility to protect: humanitarian intervention and private military and security companies. International Theory. Welsh 2004. humanitarian intervention can be in the national interest since it promotes the values endorsed by the state (i. tackling serious humanitarian crises can be in a stateʼs national interest and therefore a state may be willing to fund intervention by a PMSC. for instance. reasons to hold that. and human rights (Wheeler 2000. preventing large refugee flows and avoiding a failing state from becoming a breeding ground for international terrorism and piracy (see Evans 2008. pp 1-31 (2010). but also by its identities. states may turn to PMSCs in the future for humanitarian intervention. perhaps speculative. humanitarian intervention can be in a stateʼs national interest by. First. a stateʼs selfinterest is determined not only by its material interests. p. principles.e..victorybriefs. such as economic gain. . 229. and shared values. such as the promotion of democracy. Yet there remain political sensitivities with states risking their own soldiersʼ lives for humanitarian intervention and many statesʼ militaries are currently overstretched. even in the first two roles. 2. p.
5). Nowrojee 2004. 186). 15-16 One way of responding to these objections is to claim that the other agents of intervention (i. UK]. and the corruption of the contingents participating in UN missions have been recurrent themes in its interventions. For example. 19). the Nigerian-led ECOWAS force in Liberia committed abuses against civilians (ICISS 2001b. the various elements that comprise the intervener may be self-interested.com Page 134 of 229 TRADITIONAL AGENTS OF HUMANITARIAN INTERVENTION ARE SUBJECT TO THE SAME OBJECTIONS AS PMCS. Most obviously. Similarly. Stephen Kinloch-Pichat (2004. Third. amoral personal behaviour. other interveners have dubious records when it comes to respecting principles of jus in bello. pp. The difficulty of legally sanctioning the UN troops involved exacerbates these problems (Kinloch-Pichat 2004. the UN. Second. 178) argues that a lack of discipline. the Foreign and Commonwealth Officeʼs Green Paper on PMSCs argues that “national armies are in many cases guilty of precisely those abuses with which PMSCs are charged. p. a danger to stability and frequent violators of human rights” (2002. James Pattison [Lecturer in Politics. A number of states. Foreign and Commonwealth Office 2002). for example. Thus. School of Social Sciences. and states) are also subject to them. First. 136). the University of Manchester. the UN. 83. contribute to UN peacekeeping missions for financial reasons (Shearer 2001. p. 2. International Theory. . certain agents lack democratic control over military force too. Outsourcing the responsibility to protect: humanitarian intervention and private military and security companies.. Often they are unaccountable. pp 1-31 (2010). Likewise. p. and the AU include many undemocratic states.victorybriefs. p. regular soldiers may also be motivated by financial remuneration (Lynch and Walsh 2000. regional organisations. such as the involvement of UN troops in child prostitution in the DR Congo. p.10PF6-Wikileaks www. p. ECOWAS.e.
it involves (1) the worst moral wrong (2) on a massive scale. 16 Why is it that the significance of these three concerns can be outweighed when these two conditions are met? My reasoning is as follows. pp. International Theory. pp 1-31 (2010). physical injury. where those in the midst of the crisis have to endure the violation of basic human rights. As such. James Pattison [Lecturer in Politics. killing. Accordingly.victorybriefs. School of Social Sciences. but especially locally. rape. UK]. death. the University of Manchester.com Page 135 of 229 HUMANITARIAN CRISES REPRESENT THE WORST MORAL WRONG. it is of the utmost moral importance that a serious humanitarian crisis is halted. and so on – is perhaps the worst moral wrong that can happen to an individual. A serious humanitarian crisis usually involves the mass violation of basic human rights. . Outsourcing the responsibility to protect: humanitarian intervention and private military and security companies.10PF6-Wikileaks www. Particularly serious humanitarian crises pose grave problems to human rights and human security regionally and globally. The degree of human suffering typically involved in the violation of basic human rights – torture. 2. starvation.
this lack of democratic accountability seems less problematic. the humanitarian crisis might be serious (such as arbitrary detention by an oppressive government).com Page 136 of 229 WHEN PMCS ARE LIKELY TO STOP A HORRIBLE GENOCIDE. Analogously. Furthermore. and follow principles of jus in bello in all circumstances. by occasionally failing to distinguish properly between civilian and military targets. the PMSC might not be effective in the role that it plays in the intervention. It applies only when these two conditions have been met. is responding to a serious humanitarian crisis and. THE MORAL ADVANTAGE OF USING THEM OUTWEIGHS THE MORAL CONCERNS OF DOING SO. a PMSC may violate some citizensʼ human rights. International Theory. . for instance. 1 To be sure. That is. firstly. given the moral problems that arise. My defence of employing PMSCs to undertake humanitarian intervention is restricted. pp 1-31 (2010). to cases where the other concerns that we may have about employing these companies are outweighed – when PMSCs will be highly effective at tackling a serious humanitarian crisis. a PMSC will be effective at tackling the worst moral wrong on a massive scale. UK]. A PMSCʼs intervention will possess greater justifiability if they do so since all three qualities have noninstrumental value. secondly. Outsourcing the responsibility to protect: humanitarian intervention and private military and security companies. but not so serious that the basic human rights of a large number of individuals are at stake. Alternatively. But if this PMSC plays a central role in tackling an egregious humanitarian crisis. the University of Manchester. In such situations. the potentially morally problematic motivations of private contractors and PMSC decision-makers are overshadowed. and follow principles of jus in bello. 16-17 When the two conditions above are met.victorybriefs. Yet its intervention can still be justifiable if it prevents many more violations of basic human rights. The mindset of those intervening seems far less important than that the severe humanitarian crisis is effectively tackled.10PF6-Wikileaks www. by doing so. are democratically accountable. Third. School of Social Sciences. then. most regard NATOʼs intervention in Kosovo as justifiable because it halted ethnic cleansing. democratically accountable. In this context. a government might circumvent parliamentary constraints and public opinion on the decision to intervene by employing a PMSC and. 2. Likewise. when it is likely to be successful. On the contrary. James Pattison [Lecturer in Politics. First. I am not claiming that when these two conditions are met it does not matter whether PMSCs possess the right motives. this is not an extreme consequentialist argument. despite its use of cluster bombs. pp. undermine democratic control over the intervention. PMSCs should be properly motivated. we should avoid employing private force to undertake humanitarian intervention (particularly in the first two roles that PMSCs can play). it applies only when a PMSC. And these conditions will not always be met.
Although there may be difficult cases. we can judge that Company Aʼs contribution is likely to improve the effectiveness of the intervention.10PF6-Wikileaks www. In this case. suppose that Company D is to guard key infrastructure in support of State Eʼs intervention.com Page 137 of 229 THE DIFFICULTY IN PREDICTING THE CONSEQUENCES OF HUMANITARIAN INTERVENTIONS IS NOT A COMPELLING OBJECTION TO THE USE OF PMCS IN MANY CIRCUMSTANCES. it is sometimes possible to predict fairly accurately the likely success of a PMSCʼs intervention or support of another agentʼs action. For instance. Assume further that Company A has an excellent reputation of fulfilling its contracts to the best of its ability and has much experience in airlift. School of Social Sciences. 18 This argument also fails to persuade.victorybriefs. UK]. pp 1-31 (2010). suppose that Company A is to provide State B with much-needed airlift capacity. . 2. International Theory. James Pattison [Lecturer in Politics. pp. which is currently suffering a major humanitarian crisis. Outsourcing the responsibility to protect: humanitarian intervention and private military and security companies. Company D has previously broken contracts when the situation has become dangerous and lacks experienced personnel to carry out the mission. Alternatively. This airlift capacity will enable State B to provide civilian protection throughout State C. the University of Manchester. the effectiveness of Company Dʼs action would be much more dubious. In this case.
com Page 138 of 229 PMF PERSONNEL ARE BETTER-TRAINED. Similarly. France. at 313 troops. These figures highlight the fact that the United Nations is a voluntary organization. . most of the 3. and South Africa. Vol. or Canada. Portugal contributed the largest force of any NATO country. This can be compared with UNAMIRʼs force. MORE EXPERIENCED AND MORE EFFECITVE THAN REGULAR SOLDIERS. experience. positing that skilled warriors can route hordes of untrained combatants. “Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation”. University of Calgary. Canada. Only around 300 were from Portugal. although these companies tend to deploy units that are much smaller in terms of manpower relative to both their adversaries and major UN military forces. In the case of Executive Outcomes. 8. Scott. Great Britain. Military strategists since Sun Tzu have argued forcefully about the decisive role that military skill and proper coordination can play in a conflict. Department of Political Science. their ability to project force rests in their high level of training. and two other NATO members contributed fewer than 16 troops each. Modern PMCs operate under a similar rationale. that firm employed soldiers from the three most elite units of the Apartheidera South African Defence Forces (SADF).and third-rate militaries that may not have the requisite military skill to carry out complex operations. Most were drawn from the disbanded 32nd Battalion. Journal of Military and Strategic Studies.500 peacekeepers deployed in Rwanda in March of 1994 were from either the developing world or former Eastern Bloc satellite countries. Fall 2005. Australia. in which most of the 2. or New Zealand. Russia. Indeed. the Netherlands. France. and overall battlefield skill. a unit known as "the terrible ones" for having the highest kill ratio of any unit in the SADF. which can limit the quality of personnel contributed to missions in Africa to largely second.victorybriefs.600 peacekeepers deployed as part of UNAVEM III in Angola in December of 1996 were from either the developing world or former Eastern Bloc satellite countries. The majority of participants in modern PMC combat operations are former special forces personnel from the armed forces of the United States. the Netherlands. Fitzsimmons. Less than 500 were from Belgium Australia. Issue 1.10PF6-Wikileaks www.
This action had the additional benefit of bringing RUF leader Foday Sankhoh to the negotiating table and ultimately contributed to his signing a peace agreement with the government in November of 1996. Singer's assessment of EO actions in Sierra Leone concluded that the PMCʼs small but tactically proficient force played a decisive role in compelling the RUF to stop fighting and negotiate with the government for the first time. P. Issue 1. EO accomplished this by conducting reconnaissance missions to determine the location of RUF forces around Freetown and then eliminating them before a disruption of the election could spark a widespread outbreak of hostilities.10PF6-Wikileaks www. Department of Political Science. and destroy the RUF's headquarters. retake key mines from the RUF. Freetown. Furthermore. “Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation”. EO was able to respond to threats from RUF forces geared towards disrupting the first official democratic election in Sierra Leonean history. The style of warfare that characterized the Sierra Leonean conflict before EO's arrival was roadside ambushes followed by quick withdrawals.victorybriefs.com Page 139 of 229 PMFS ARE MILITARILY EFFECTIVE—SIERRA LEONE PROVES. . and most important in any discussion of security guarantees. thereby violating the November 1995 ceasefire.W. EO's superior knowledge of military tactics appears to have greatly contributed to its successes. EO's tactics included constantly pursuing RUF forces from the air and on the ground and forcing the RUF to commit to standup battles that put the unskilled rebel force at a severe disadvantage. Fitzsimmons. Vol. University of Calgary. In the twenty-one months that Executive Outcomes was deployed in Sierra Leone and with fewer than 500 foreign specialists. 8." Similarly. Journal of Military and Strategic Studies. it was able to drive back rebel Revolutionary United Front (RUF) troops from around the capital. Scott. Fall 2005. Veterans of EO's campaign described their tactics as being so effective that compelling the RUF to stop fighting was "childʼs play.
Fall 2005. All employees at EO's Cabo Ledo base on the coast south of Luanda in Angola were encouraged to wear T-shirts with one of the companyʼs mottos emblazoned on the back: "Fit in or Fuck off.10PF6-Wikileaks www." a policy that reflected the reality that there was little room for mistakes when attempting to compel 38. and long-range strike missions. Fitzsimmons.000 active duty UNITA personnel to stop fighting. Venter notes.victorybriefs. "anyone who stepped out of line was put on the first plane home. EO's success in Angola has been attributed to strong unit cohesion and discipline. As in Sierra Leone. Through military pressure put on the National Union for the Total Independence of Angola (UNITA) by EO. However. Executive Outcomes displayed similar tactical prowess during its earlier operations in Angola. Zambia. UNITA seemingly recognized EO's impact in its demand that a clause be included in the Lusaka Peace Protocol banning all mercenaries from the country. These included night fighting. Moreover. EO's entry into the war coincided exactly with the downturn in UNITA's military fortunes. University of Calgary. the Angolan government was able to regain and consolidate control over most of the provincial cities and leverage UNITA leaders to sign a new peace agreement in Lusaka. 1994. on November 20. The PMC's detractors argue that it played a much less important role in the outcome of that stage of the Angolan conflict. joint air-land assaults." As PMC researcher A. 8. EO employed previously unseen tactics in the Angolan theatre of war to decisive effect. “Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation”. In addition.com Page 140 of 229 PMFS ARE MILITARILY EFFECTIVE—ANGOLA PROVES. Vol. . Journal of Military and Strategic Studies. Issue 1.J. Department of Political Science. Scott.
Fitzsimmons. the PMC rationally chose the former option.victorybriefs. Executive Outcomes' interests during its peacemaking operations were fairly obvious: if the company failed to coerce the rebel forces in Sierra Leone and Angola to stop fighting. University of Calgary. if potential belligerents are to believe in the strength of security guarantees. the PMC's long-term reputation would have been tarnished and. Vol. The PMC had previously committed to maintaining a presence in the country as a stabilizing force for as long as was necessary. The final critical component of strong security guarantees is that intervention forces must be committed to the success of peace enforcement operations. it would not have been paid. Issue 1. . Similarly. 8. Department of Political Science. as a result. Furthermore. Journal of Military and Strategic Studies.10PF6-Wikileaks www. then outside interveners should be selfinterested in upholding their promise to provide security even in the face of opposition from belligerents. its chances for securing future contracts while competing against other major private security firms like MPRI or Armourgroup would have been greatly reduced. “Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation”. the company stayed on largely unpaid until it was forced to leave Sierra Leone in 1996 due to pressure from an international community that had misinterpreted its role in the conflict. EO only left Angola in 1995 because the MPLA cancelled its contract under pressure from the United States and the United Nations. Fall 2005. Faced with the prospect of being paid eventually by the Sierra Leonean government so long as EO could keep it in power or not being paid at all if EO stood back and allowed the RUF rebels to take over.com Page 141 of 229 PMFS ARE HIGHLY MOTIVATED AND DISPLAY COMMITMENT TO OPERATIONAL SUCCESS. long-term profit appears to have been a powerful motivating force in these cases. Scott. Although pragmatically lacking the honour sometimes associated with public military service in defence of one's own state. As Barbara Walter rightly suggests. Indeed.
These companies recruit from databases of mostly retired military and police personnel. Brooks. PSCs are a small subset of the larger contingency contractor community.10PF6-Wikileaks www. . the people who should be doing the reconstruction and security in their own country.000 are Iraqis. Avant. providing training. Army staff sergeant put it. Second. South Africa and elsewhere. PSCs can also recruit internationally. “Weʼre trying to get more international participation here and the contractors can hire internationally. close to 120. PSCs have been able to bring in representation from countries like Fiji. President of the International Peace Operations Association. Doug. Foreign Policy Research Institute. December 2007. and deploy them to a particular arena. PSCs can also recruit personnel with particular skills (in language or area expertise) or particular experience (establishing order after civil war). Associate professor and director of the Institute for Global and International Studies at George Washington Universityʼs Elliott School of International Affairs. Deborah.S.000 contractors in Iraq.victorybriefs. As I mentioned earlier. and income for impacted populations and giving them a significant stake in developing a stable society. Council on Foreign Relations. making up only 5-10 percent of total numbers and value and typically their workforce is predominately locals. It is much harder for national military organizations to find those kinds of specific skills and experience.” PMFS ARE EFFECTIVE AT COUNTERINSURGENCY SINCE THEY BRING IN LOCALS WHO UNDERSTAND CONDITIONS ON THE GROUND. a PSC can specifically recruit retired MPs. As a rule of thumb companies will employ as many locals as contractually allowed since they have better knowledge of the situational complexities. This makes it easier for them to hire people with particular experience. As one U.com Page 142 of 229 PMFS PROVIDE SPECIALIZED PERSONNEL WHO ARE OTHERWISE HARD TO RECRUIT. civil affairs officers and Special Forces personnel. PSCs can also more easily field the kind of forces most needed. This utilization of local talent makes contractors the most effective counterinsurgency tool conceivable. are less expensive. and operate under clear legal frameworks. PSCs in Iraq can be upwards of 90 percent local personnel and their security allows reconstruction to continue in the face of ruthless resistance. April 2006. “Private Security Contractors”. “Private Military Companies and the Future of War”. for instance. Of the estimated 180. So. it can provide specialized forces. capacity building. for example. do not require logistic support.
such as that seen in the US exit from Somalia in the early 1990s. February 2006. The political consequences of soldiers being killed or wounded in action are also ʻoutsourcedʼ.10PF6-Wikileaks www. Singer. “Humanitarian principles. Foreign Policy Research Institute. April 2006. Deborah. . and thus they may be able to operate more effectively on the ground. Senior Fellow and Director of the 21st Century Defense Initiative at the Brookings Institution. PSCs can provide “surge” capacity to quickly field additional forces. “Private Military Companies and the Future of War”. Associate professor and director of the Institute for Global and International Studies at George Washington Universityʼs Elliott School of International Affairs.com Page 143 of 229 PMFS CAN BE MORE QUICKLY AND FLEXIBLY DEPLOYED THAN REGULAR FORCES. By drawing on a global pool of military labour. and in fewer numbers. PMFs offer the potential of greater flexibility and agility than state or international organisations. PMFs can often call on personnel who are more experienced and better trained than state or local forces. in the sense that casualties among private contractors are less likely to cause political difficulties and domestic pressure for withdrawal. PMFS ARE ABLE TO RESPOND TO INTERNATIONAL CRISES FASTER AND EASILY THAN STATES OR INTERNATIONAL BODIES. As seen in Iraq. Thus. First. private military agents: some implications of the privatised military industry for the humanitarian community”. Resetting the Rules of Engagement: Trends and Issues in Military–Humanitarian Relations. Once dangers pass or local forces are trained and deployed. There are many benefits associated with private security. From Victoria Wheeler and Adele Harmer (eds). it can provide surge and flexibility. PSCs can move forces in to accomplish a wide variety of tasks. and also in New Orleans. contracts can lapse and these personnel can be quickly demobilized. As quickly as these forces can appear.victorybriefs. they can disappear. Without the political and bureaucratic lead time required for mobilizing military forces. Peter Warren. Avant. HPG Report 22.
years from now. contractors operating alongside U. we will continue to muddle along with a mixture of private and public providers of security services. Congress would bring the size of our armed forces into closer alignment with our massive defense commitments. KBR.com/article-bd. http://www. demands on the United States are so numerous and elastic that even if we did have far more resources.com Page 144 of 229 TO MEET OUR GLOBAL COMMITMENTS WITHOUT RELYING ON PMFS WE WOULD NEED TO EXPAND THE MILITARY TO AN EXTENT THAT IS POLITICALLY UNREALISTIC. Max. Ideally. Thus. “The Mercenary Debate: Three Views”. Senior Fellow in National Security Studies at the Council on Foreign Relations. But such a large and costly increase could not be accomplished overnight.victorybriefs.S.the-american-interest. in all likelihood. Yet it also has no desire to curtail sprawling global commitments that most agree do enhance our security and prosperity. the imperative is not to vilify contractors. In a perfect world. we will never have enough soldiers to meet every possible need. I favor a large increase in the size of the armed forces. however. but what is the alternative? It is rare to hear the voices that castigate Blackwater. we will need to employ private guards too. Yet that is what it would take to decrease our reliance on contractors while maintaining existing military commitments. and it will never make sense to assign many mundane chores to scarce soldiers when they could be performed by hired civilians. Just as Victorian parliaments stinted on the size of the British army. is loath to spend whatʼs needed on defense. Realistically. but to figure out how to get better value out of them. and it is even more reluctant to conscript its citizens. so too our Congress will never provide enough uniformed personnel to address every perceived need. it would not allow us to banish contractors altogether. as so many have done. The American Interest Online. like most democratic legislatures. whether protecting installations in the United States or abroad. calls for intervention would still grow faster than we could handle them. DynCorp and their ilk call for a massive increase in the size of the active-duty military. May-June 2009.000 soldiers—its size at the end of the Cold War. As long as we continue to rely on volunteers rather than conscripts. Boot. and even when complete. Given that reality. But our legislature.10PF6-Wikileaks www. Indeed.cfm?piece=597 All these problems are undeniable. I think the Army needs to grow from its current active-duty strength of around 540. troops would be limited to support functions. As it happens.000 soldiers to at least 700. . forcing reliance on regiments raised in India.
A report from the Center for Public Integrity found that the number of defense-contracting fraud and corruption cases sent by government investigators to prosecutors dropped precipitously under the Bush administration. The Obama administration also pledged to improve the quality of the acquisition workforce — the government employees who are supposed to be supervising and auditing the billions of dollars spent monthly on the contracts. harmonization scheme and a global-security-industry club — that go beyond market mechanisms and national regulations that can be applied to what it calls the global security industry.S. Grand Strategy”. For example the introduction to Obama's 2010 budget noted. and they are seeking new approaches to deal with this reality. the United States cannot go to war without them. “Private Military Contractors and U. International Peace Research Institute Report.victorybriefs. accreditation regime. Isenberg. Senator Obama introduced the Transparency and Accountability in Military and Security Contracting Act (S.com Page 145 of 229 THE OBAMA ADMINISTRATION HAS RECOGNIZED THAT PMFS ARE AN INELIMINABLE ELEMENT OF US FOREIGN POLICY. In February 2007. 2009. even as contracting by the Defense Department almost doubled. Researcher and leader of the Norwegian Initiative on Small Arms Transfers at the International Peace Research Institute. critical government functions will not be performed by the private sector for purely ideological reasons. and wounded. the Obama administration introduced in February 2009 a set of reforms designed to reduce state spending on private-sector providers of military security. Reform of this process is essential. This recent shift shows that the Obama White House is less committed to outsourcing in principle than was its predecessor. . arbitration tribunal. the Obama administration launched a campaign to change government contracting. 674). scholars and policymakers recognize that the use of contractors is a permanent part of government. killed. Oslo (PRIO). an amendment to the 2008 Defense Authorization Act. an issue that President Obama had addressed as a senator. David. After just a few weeks in office.” Collectively. Earlier this year the International Peace Institute released a study that identified five different frameworks — global watchdog.10PF6-Wikileaks www. “The administration also will clarify what is inherently a governmental function and what is a commercial one. Continuing on this work. Despite the often superficial coverage of the issue. The bill was referred to the Senate Armed Services Committee but never passed into law. the Obama reforms reflect the administrationʼs recognition that contractors are fully integrated into national security and other government functions. and disciplinary actions taken against contractors. requiring federal agencies to report to Congress on the numbers of security contractors employed. intelligence and other critical services and return certain outsourced work back to full-time government employees.
the use of PSCs may be a tool to substitute for troops and encourage staying power. Similarly.10PF6-Wikileaks www. “Private Military Companies and the Future of War”. Thus there are some significant benefits to be had from involving the private sector in security.victorybriefs. in the wake of the Cold Warʼs end. Finally. it is politically less costly to field PSCs. of their own choice. Associate professor and director of the Institute for Global and International Studies at George Washington Universityʼs Elliott School of International Affairs. for those who believe that a long-term commitment is crucial to successful nation building in Iraq and worried that the US cannot sustain such a long term commitment. Avant. April 2006. Thus. working for their country.com Page 146 of 229 PMFS ALLOW US TO SUSTAIN COMMITMENTS WHICH ARE OTHERWISE POLITICALLY UNFEASIBLE. and sending them abroad is not held to the same standard that sending national troops. Private contractors are seen to be working for profit. outsourcing tasks like logistics through the LOGCAP program was seen as a way of doing more with fewer troops. Deborah. when the size of US forces were cut to satisfy political demands. . Foreign Policy Research Institute.
) at the global level. How does all this bode for the future of war? There are two views. “Private Military Companies and the Future of War”. Many in the private-security industry claim to welcome such standards and suggest that they can enhance the legitimacy of reputable firms.victorybriefs. The best-case scenario. of course. the U.S. Foreign Policy Research Institute. suggests that PSCs may be the beginnings of a class of global private professionals. as well as the other approaches that shun PSCs in the hope that they will go away. are short-sighted. April 2006. This vision of the future is similar to the portrait Martin Van Creveld painted in The Transformation of War. and other consumers should support efforts to create private professionals. reduce risk. Instead. U. Individual state policy will only have influence if the state is also a consumer and unilateral reliance on PSCs may tempt states to take actions that their citizens view as illegitimate. This kind of cooperation will be most likely to generate professional. however. but I contend what will determine which path private security lead toward is how private security is managed. (the single largest consumer) is missing from there discussions. Global regulatory standards are only one step in a long process.S. There are some efforts to move forward on discussions about this kind of framework. though. Other states.com Page 147 of 229 THE EXISTENCE OF PMFS IS UNALTERABLE. citing moral or ethical reasons.S. Avant. etc. PSCs respond to market incentives. States may be tempted to use PSCs to enhance their security vis-à-vis others. and legal standards that both inform PSCs of proper behavior and reward those that behave properly. In my view.S. At present. international organizations and NGOs also refuse to engage in such discussions. The worstcase scenario sees the use of PSCs as an unleashing of the dogs of war that will undermine democratic control of force and security as a public good. The path toward international private professionals will require some level of cooperation among consumers (states. but in a global market individual state action cannot solve risks on its own. There are. THE US NEEDS TO PARTICIPATE IN DEVELOPING A GLOBAL REGULATORY REGIME TO ENSURE THEY ACT AS A FORCE FOR GOOD. efforts to regulate and use private security unilaterally. partly due to U. ethical. Security will become a private good leading to less public order and more anarchy. Associate professor and director of the Institute for Global and International Studies at George Washington Universityʼs Elliott School of International Affairs.S. . the U. A purely free market is most likely to lead to a “race to the bottom” like the worst case scenario predicts. and ease the operational inefficiencies associated with a market of multiple standards. many possibilities in between these two scenarios. NGOs. private companies.10PF6-Wikileaks www. PSCs will be a tool for spreading order and the potential for stability and economic growth to less ordered parts of the world. government worries that global standards may impinge on the flexibility that PSCs can offer to the U. Deborah.
.com Page 148 of 229 but at least promise movement forward in the efforts to leash what could otherwise be the dogs of war.10PF6-Wikileaks www.victorybriefs.
http://www. it has experienced a resurgence since the end of the Cold War—a time when armed forces have declined in size even as many areas of the globe have become more unstable.com/article-bd. Most private military companies today offer logistical. which was notorious for chopping off the limbs of its victims. but some do provide armed security personnel as well. Senior Fellow in National Security Studies at the Council on Foreign Relations. As a result.the-american-interest. They are now out of business. for instance.cfm?piece=597 While the use of mercenaries has been in a centuries-long decline. An even smaller number engage in offensive military operations. Sierra Leone was able to hold its first free election in decades. Boot. “The Mercenary Debate: Three Views”.com Page 149 of 229 PMF INTERVENTIONS HAVE STOPPED ATROCITIES THAT WESTERN GOVERNMENTS WERE UNWILLING TO PREVENT. among others. Max. helped to bring peace to the former Yugoslavia in 1995 by organizing the Croatian offensive that stopped Serbian aggression. training and other non-combat services.victorybriefs. Liberia. Today MPRI provides trainers who operate side by side with local poppy-eradication forces in Afghanistan—a mission that NATO refuses to take on. In 1995–96. but in their heyday in the 1990s they helped the governments of Papua New Guinea. The American Interest Online. May-June 2009. The most famous of these were the closely linked South African firms Executive Outcomes and Sandline. . to put down savage insurgencies at a time when the rest of the world stood idly by. MPRI. Another private firm. Executive Outcomes made short work of a rebel movement in Sierra Leone known as the Revolutionary United Front. Angola and Sierra Leone.10PF6-Wikileaks www.
There is little doubt that private security firms that employ veterans from the top Western militaries could accomplish this task more effectively than any force of blue helmets drawn primarily from ragtag Third World militaries. so do United Nations peacekeepers.com/article-bd. a humanitarian tragedy that has consumed an estimated 200. Preferably such a force would be dispatched by the United Nations. The blue helmets have been accused of sex crimes against children. Think of Darfur.com Page 150 of 229 PMFS ARE MORE EFFECTIVE THAN INTERNATIONAL PEACEKEEPERS. the African Union or some other international organization. THE ABUSES COMMITTED BY PMFS ARE NO WORSE THAN THOSE COMMITTED BY UN PEACEKEEPERS. ACCOUNTABILITY MECHANISMS ARE EASY TO CREATE CONTRACTUALLY.cfm?piece=597 But while mercenaries have a checkered record in Africa. “The Mercenary Debate: Three Views”.cfm?piece=597 If we manage to increase their accountability. http://www. . Boot. May-June 2009. failing that. http://www.000 lives. Senior Fellow in National Security Studies at the Council on Foreign Relations. Yet there is scant chance that the United States or our NATO allies will send troops or even warplanes to provide air cover.the-american-interest. and its United Nations successor has not done any better. we can think about employing contractors creatively in some areas where we may not want to send our own troops. by an individual country or group of countries. Boot. May-June 2009. So does that mean we should stand by and let the genocide proceed unabated? Should we limit our response to passing ineffectual United Nations resolutions? Not necessarily. AND.com/article-bd.the-american-interest. Blackwater has publicly offered to stop the killing for a relatively modest price.10PF6-Wikileaks www. Senior Fellow in National Security Studies at the Council on Foreign Relations. especially at a time when we are fighting major wars elsewhere. by NATO. Max. The American Interest Online. “The Mercenary Debate: Three Views”. Max. corruption and other abuses for which they have received little if any punishment. There simply doesnʼt seem to be enough of a national interest to justify a potentially costly commitment. and if that doesnʼt work out. An African Union peacekeeping force proved ineffective.victorybriefs. A private company could actually be held to a higher standard simply by inserting language into the contract that would give the International Criminal Court or a national criminal court jurisdiction over its actions. The American Interest Online.
a strategic town outside of Luanda. aerial bombardment. This effectiveness appears to be supported by two structural advantages possessed by major PMCs: better quality personnel and better quality combat equipment. Scott.victorybriefs. where it utilized its relatively small group of especially skilled employees (never more than 550) to enhance the effectiveness of a much larger force. Journal of Military and Strategic Studies. reconnaissance. artillery. The PMC trained over 5. giving them a distinct edge over the UNITA rebels. Journal of Military and Strategic Studies. University of Calgary. University of Calgary. Fitzsimmons. Fall 2005. Beyond this. Fitzsimmons. On this point perhaps more than any other. Fall 2005. then their presence in a conflict zone is largely ornamental. the entire civil war switched to the government's advantage from that point on. Department of Political Science. REDUCING CASUALTIES IN CIVIL WARS. engineering. sabotage. Overall. “Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation”. “Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation”. "that battle changed the whole attitude of the Angolans. 8. If intervention forces cannot meet this requirement. Scott. signals.10PF6-Wikileaks www. EO's primary role in Angola was that of a force multiplier. EO's involvement in the Angolan conflict provided the ruling MPLA with critical skills that its military forces lacked. Department of Political Science. and joint air-ground operations. According to EO veterans of that mission. the cases of Executive Outcomes in Sierra Leone and Angola demonstrate the potential superiority of PMCs for providing security guarantees in African conflicts when compared to traditional UN military forces.000 Popular Movement for the Liberation of Angola (MPLA) soldiers and thirty pilots in such fields as motorized infantry. PMFS ACT AS FORCE MULTIPLIERS. EO's single greatest triumph in Angola occurred in June of 1994 when its personnel led the EO-trained Angolan 16th Brigade to victory over UNITA forces at N'taladonda. Issue 1. . medical support." Indeed. Vol. Issue 1. and suffered only four causalities. Vol.com Page 151 of 229 PMFS MORE EFFECITVE THAN TRADITIONAL UN PEACEKEEPING FORCES. ground support. 8. A beneficial characteristic of intervention forces wishing to provide strong security guarantees is the capacity to project force against belligerents.
This contributed to a perception on the part of the Hutu leadership that the RPF could not be trusted to abide by other tenets of the Arusha Accords and were preparing to attack Rwandan Hutus. Fitzsimmons. this inability to track and control the movement of weapons and the strength of Rwandan Patriotic Front forces throughout the country ensured that UNAMIR could not fulfill the key aspect of its mandate to help make the capital of Kigali a “weapons secure area. Department of Political Science. they were incapable of preventing the arming of belligerent forces. University of Calgary. . Vol. yet because UNAMIR's soldiers could not acquire sufficient intelligence to discern movement patterns and supply networks for these weapons.com Page 152 of 229 UN PEACEKEEPING FORCES ARE INEPT AND INEFFECTIVE COMPARED TO PMFS—RWANDA PROVES. The Hutu government in power began to speculate that Tutsi-dominated RPF forces near Kigali were far more numerous and better armed than those forces were in reality. “Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation”.10PF6-Wikileaks www. This contrasts markedly with Executive Outcomes' battalions. One of UNAMIR's most important deficiencies was a lack of personnel skilled in intelligence gathering.victorybriefs. directed primarily against the Rwandan Tutsi population that it saw as a support base for the RPF.” Of even greater importance. These movements of arms were in direct violation of the Arusha Peace Accords. 8. the Hutu regime scrapped the Arusha Accords and launched its historic campaign of genocide. As a result of this deficiency. UNAMIR was largely unable to determine the exact locations or troop strength of the rebel Rwandan Patriotic Front (RPF) or the movement of arms to both that organization and the Hutu government. Journal of Military and Strategic Studies. Fall 2005. The results of UNAMIR's presence in Rwanda could not have been more different. Issue 1. Ultimately. Scott. As a result of this perception and the inability of UNAMIR forces to offer information that could have perhaps modified it. this inability to provide accurate information also significantly aggravated the security dilemma within Rwanda in the spring of 1994. whose elite South African-trained special forces soldiers were all well-versed in reconnaissance and intelligence analysis. UNAMIR soldiers could not provide strong security guarantees to parties in the Rwandan conflict because its soldiers were incapable of undermining the war-making ability of the belligerents.
A UN team attempting to verify allegations that UNITA was storing weapons at Chingongo was also detained and turned away that same year. armed UNITA soldiers detained a UN weapons investigation team and their helicopters for over twenty-four hours at Calibuitchi in 1997.10PF6-Wikileaks www. UNAVEM III's performance in Angola was similarly poor. University of Calgary. UNITA freely purchased over $2. For example. afforded the rebel groups a near inexhaustible financial base with which to rebuild its war-making capacity. UNAVEM III's thousands of personnel could not provide sufficiently strong security guarantees to deter violent violations of the Lusaka Protocol or prevent a return to the civil war that EO had halted in 1994. Events such as these characterize the physical inability of UN personnel to verify the storage and movement of UNITA weapons and military personnel. 8. it expressed concern "about the increase in tensions. the United Nations Observer Mission in Angola (MONUA). Scott. 1997. The rebel group later used these weapons to launch small offensives against the MPLA throughout the duration of UNAVEM III and to eventually restart the Angolan Civil War in 1998 despite the presence of the UN's successor force. Department of Political Science. large parts of the country remained completely unsecured and isolated from the central government. the return to full scale civil war under the watch of the even more passive MONUA is unsurprising. Fall 2005. and the attacks by UNITA on UNAVEM III posts and personnel. “Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation”. Fitzsimmons. UNITA soldiers simply did not respect the poorly trained UN personnel and refused to cooperate on measures designed to reduce the group's war-making ability. the inability of UNAVEM III's personnel to prevent UNITA from recapturing Angola's diamond fields in the northeast. Journal of Military and Strategic Studies.5 billion in weapons while UNAVEM III was deployed in Angola. Issue 1. Vol. As a result. Moreover." Taking this into account. Moreover.victorybriefs. a direct violation of the Lusaka Protocol. .com Page 153 of 229 UN PEACEKEEPING FORCES ARE INEPT AND INEFFECTIVE COMPARED TO PMFS—ANGOLA PROVES. Quite unlike their attitude toward EO employees. even as the UNSC voted to transfer authority for the Angolan peace process from UNAVEM III to MONUA. At the end of UNAVEM III's mandate on June 30. especially in the northeastern provinces.
“Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation”. was denied an armored fire support unit and armed helicopters and was supplied with very little ammunition. The UNAMIR mission. for example.com Page 154 of 229 PMFS ARE FAR BETTER EQUIPPED THAN UN PEACEKEEPING FORCES. UNAMIR did . UNAMIR's lightly armed and poorly trained military forces could not have presented a credible deterrent to the comparably trained but more numerous Hutu military and paramilitary forces. and a small number of armoured personnel carriers.10PF6-Wikileaks www. Issue 1. These assets were employed in support of ground equipment. For example. Department of Political Science. including BMP-2 infantry fighting vehicles and BTR-60 armoured personnel carriers. Executive Outcomes possessed an air wing that included Mi-8 "Hip." and Mi-24 "Hind" attack and transport helicopters outfitted with fully automatic cannons and grenade launchers as well as MiG-17 "Fresco" and MiG-23 "Flogger" fighters. University of Calgary. while PMCs can utilize their heavy equipment to overrun far more numerous but lightly armed belligerents. because it relied on sudden strikes made possible by its helicopters. This situation ensured that. which provided both transport and covering fire. These aircraft were owned by the Angolan Air Force but. UN forces tend to be equipped with little more than rifles. some of these organizations also possess the modern military hardware necessary to quickly and effectively punish violations of peace agreements. unarmed helicopters." EO utilized similarly capable equipment in Angola and also operated Su-25 "Frogfoot" and MiG-27 "Flogger" ground attack fighters. Much of EO's success in Angola has been attributed to the PMC's surprise long-range helicopter assaults deep within UNITA controlled territory supported by ground attack aircraft and armoured ground vehicles. even if coercive Chapter VII operations had been authorized by the United Nations Security Council (UNSC) once the genocide had begun. Angolan pilots lacked the skill to operate and maintain these aircraft effectively. in Sierra Leone. As in Sierra Leone. poorly equipped United Nations forces in Africa often cannot do the same. 8. Scott.victorybriefs. Vol. Journal of Military and Strategic Studies." Mi-17 "Hip-H. Consequently. These operations resulted in the loss of hundreds of RUF fighters but only 20 EO soldiers. an analyst who has studied the operation concluded that Executive Outcomes' "casualties have been few. Fitzsimmons. EO lost only 20 employees during the entire Angolan operation while eliminating thousands of UNITA soldiers primarily with its heavy combat vehicles. Fall 2005. This style of weaponry is simply not made available for UN military missions in Africa because contributing nations either do not possess such resources or refuse to risk losing them in distant. Indeed. non-strategic conflicts. Closely related to the high degree of skill possessed by modern PMCs. to help achieve comparatively rapid victories over RUF forces in response to the rebel troops' planned attempt to disrupt the January 1996 presidential election. in the absence of Soviet support. Consequently.
Consequently. the PMC's demonstrably robust capacity in this area also indicates that a similarly capable PMC could provide stronger security guarantees in peace enforcement operations than much larger UN forces which lack quality personnel and equipment. something that they could never do to one of EO's armoured BMP-2s armed with 30 mm antiinfantry cannons. patrol teams were almost always limited to a single vehicle.10PF6-Wikileaks www. UNAMIR's and UNAVEM III's inability to project military force failed to deter violence and allowed belligerents to build up their war-making capacities and restart the civil wars in Rwanda and Angola. although EO showed that it could successfully project force against belligerents during peacemaking operations where it did not have to act impartially. UNAVEM III suffered from similar problems. it also reduced the amount of ground that they could patrol in a given period of time. reduced their ability to monitor and control the movement and storage of weapons and combat personnel. The UNʼs unarmed ground and air vehicles posed no inherent threat to UNITA forces. . According to the mission's operating procedures. Similarly. This.victorybriefs. However. It is clear then that EO's ability to project military force helped establish peace in Angola and Sierra Leone by coercing rebel military forces to comply with ceasefire agreements and sign peace agreements.com Page 155 of 229 not provide a deterrent to the government's violent violations of the Arusha peace accords. patrols were supposed to be conducted with two vehicles acting as a team. because these vehicles were so poorly maintained and in such short supply. The lack of respect for or fear of UNAVEM III's lightly armed forces was perhaps best displayed in Quibaxe in March of 1995 when UNITA soldiers shot down a UNAVEM helicopter with no ability to defend itself. which was forced to rely primarily on aging sport utility vehicles shipped from Somalia and Cambodia to conduct its patrol and verification operations. Very few armoured vehicles were provided to the mission. in turn. This not only exposed the teams to increased risk. Therefore. rebel troops turned away UN patrols with impunity.
500 soldiers to a mere 270 military personnel. even fewer personnel were actually sent to Angola and the largest contribution from a permanent UNSC member was Russia's 151 soldiers followed by 15 soldiers from France.com Page 156 of 229 THE UN IS NOT SERIOUSLY AS COMMITTED TO PEACEKEEPING AS PMFS—ALLOWS ATROCITIES LIKE RWANDA TO OCCUR. These remaining personnel were tasked with "promoting a cease-fire" between two parties that in the spring of 1994 were preparing to annihilate each other. Similar lack of interest was demonstrated in the months leading up to the Rwandan genocide when. this lack of commitment to operational success in traditional UN military missions is understandable both because of the financial costs of doing so and also because. 8.000 soldiers. Department of Political Science. in the words of Jonah Schulhofer-Wohl. Fall 2005. However. As discussed earlier. upon being warned by UNAMIR Mission Commander Romeo Dallaire that a genocide of the Tutsi people appeared imminent. Issue 1. Rwanda was largely a peripheral interest." Force size is not necessarily the only or even the best measure of the strength of a security guarantee. University of Calgary. the Security Council voted to reduce the military contribution to the mission from approximately 2. For all the permanent members of the UNSC but France. With respect to Angola. As a result. Journal of Military and Strategic Studies. That body subsequently authorized a deployment of 7. Fitzsimmons. "no country wishes to embark on a peacekeeping mission and find its troop contribution being sent home in coffins. However. . it is unclear to this day how this force was intended to accomplish what a force almost ten times larger could not. one has only to examine the efforts by the US delegation to the United Nations to initially cap the total number of peacekeepers sent to that country at a mere 500 personnel.000 total personnel. Vol. While tragic. reducing the numbers of an already poorly skilled and equipped force can signal to belligerents that a weak guarantee has been made even weaker. no permanent UNSC member possessed significant interest in the fate of the Marxist MPLA or the UNITA rebels following the end of the Cold War. police.victorybriefs. the UNSC denied the UN Department of Peacekeeping Operations' initial request for the 15. “Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation”.10PF6-Wikileaks www. and military observers to staff UNAVEM III. The United Nations' altruistic interest in providing security guarantees in Rwanda were seemingly far less powerful than EO's profit motive. To assess the priority placed on humanitarianism and security in Rwanda by the great powers. Scott.
Brussels released a public statement on April 12. "once we had some of our people killed. Furthermore. This much smaller force was tasked with providing the security guarantees that UNAVEM III failed to bring during its two year tour in Angola. 8. Fitzsimmons. the UNSC announced the termination of MONUA's mandate and . When the war resumed in earnest in 1998. Vol. “Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation”.victorybriefs. To provide strong security guarantees in a conflict zone. when EO's forces met with setbacks. for example." and the "serious threat of a return to full-scale war. such as the 20 deaths that the force suffered in Sierra Leone. MONUA's strength was further reduced to 1. The very presence of this force was a signal to all parties that stability and security would be provided even at a high cost. 1994. after the UNAMIR force experienced casualties in the spring of 1994.200 personnel force. Issue 1. The 20 deaths suffered by the force in Angola appeared to strengthen rather than weaken the company's resolve to fulfill their contract. Scott. As EO's Colonel Hennie Blaauw argued. Department of Political Science. Following the planned murder of 10 Belgian soldiers. Finally. down from UNAVEM III's authorized 4. Journal of Military and Strategic Studies. a third party intervener must be able to demonstrate resolve behind their commitments in the face of opposition. they could see we were serious. The Belgian government also attempted at that time to persuade the Security Council to cancel the mission entirely. police. the PMC pressed on and ultimately coerced the RUF to stop fighting and return to peace talks with the government.500 soldiers. Fall 2005. MONUA's initial strength was capped at 3. Despite a report highlighting the "highest military tension since the signing of the Lusaka Protocol. thus depriving UNAMIR of what was by far its strongest and most capable unit. Executive Outcomes demonstrated resolve during its peacemaking operations in Angola and Sierra Leone through stationing a full battalion of elite soldiers with heavy air and ground combat equipment in each country or more than half of the companyʼs entire supply of readily available soldiers. As UNITA's violations of the Lusaka Protocol intensified and threats against UN personnel became more frequent.com Page 157 of 229 PMFS ARE MORE EFFECTIVE SIGNALLERS IN PEACEKEEPING SITUATIONS. announcing that their entire force of 440 soldiers was dropping out of the mission. but were only successful in encouraging the mindset that led to a reduction of the mission to a mere 270 personnel.000 total personnel and then 500. University of Calgary." the UNSC reduced UNAVEM III's force by several thousand soldiers and ultimately transferred authority for the stability of Angola to the far smaller United Nations Observer Mission in Angola (MONUA) in 1997.10PF6-Wikileaks www." This contrasts sharply with the UN forces' response to setbacks. and military observers. the progressive downsizing of UNAVEM III's force in Angola closely followed the deteriorating security situation on the ground.
correctly argues.10PF6-Wikileaks www.com Page 158 of 229 the force quickly abandoned the country. by both downsizing and transferring authority from UNAVEM III to MONUA and then progressively downsizing the latter force in the face of rising violence." rather than commit itself to the stability of Angola. As Dennis C.victorybriefs. Jett. . the UN illustrated that it was "determined to scale back… and wanted to be able to declare victory and depart. former US Ambassador to Mozambique and Peru.
then the PMC could be expected to fulfill the contract even in the face of opposition from the belligerents. Department of Political Science. it would also be motivated to perform well in order to be considered by the UN for additional future contracts. University of Calgary. it is reasonable to deduce that if a third party like the UN contracted a PMC to provide security guarantees and if payment was contractually conditioned on successfully fulfilling this task. Vol. Even a single poor performance would reduce a PMC's competitiveness against other firms vying for a finite number of peace enforcement contracts. Fall 2005.victorybriefs. Based on EO's performance during its peacemaking operations. Issue 1. “Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation”. the contracted PMC would not only be motivated to perform well in order to be paid for each individual operation. . As a result. Indeed. reputation and profit could provide even stronger motivations for successful performance in operations where a PMC is contracted by the UN because the UN could possibly award additional contracts to good performing PMCs in the future.com Page 159 of 229 PMFS HIRED BY THIRD-PARTY ACTORS TO RESOLVE CIVIL CONFLICTS HAVE STRONG AND WELL-ALLIGNED PERFORMANCE INCENTIVES.10PF6-Wikileaks www. Journal of Military and Strategic Studies. Fitzsimmons. Scott. 8.
University of Calgary. A smaller number of PMC personnel could remain in the conflict zone in a fire-fighting capacity in support of the main UN force if providing strong security guarantees proved beyond the willingness or capability of UN troops. One or more firms could then deploy personnel and equipment to a conflict zone. As P. Due to their rapid deployment capacity.10PF6-Wikileaks www. slower. UN members could remain faithful to their preferred roles as financiers and providers of observation forces.W. Department of Political Science. PMCs could capitalize on their unique willingness to engage determined belligerents in highly volatile. whenever local parties seek to threaten the success of an operation. Fall 2005. Scott. Singer argues. before British forces took over responsibility for Sierra Leone in the late 1990s. By allowing more capable. PMCs have successfully assisted UN soldiers in the past. they might provide the short-term force necessary to stabilize situations at critical junctions in the operation. whenever UN members prove unwilling to provide sufficient troops of sufficient quality to staff a UN operation deemed necessary by the Security Council. Fitzsimmons. it may be the organization's only option for securing peace in developing countries when its most capable members decline requests for personnel and equipment. coerce any belligerents to stop fighting. “Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation”." In this way. the analysis presented in this paper suggests that such a scenario would be a good division of labour between traditional UN forces and PMCs. PMCs could serve as the rapid reaction forces or standing UN legions that many within and outside the organization have sought for decades. Therefore. Vol. and work to provide sufficiently strong security guarantees to stabilize a conflict to the point where a traditional volunteer UN force could take over long-term responsibility for monitoring a stabilized peace agreement. Although this scenario may appear implausible at first. In addition. For example. . Moreover. Issue 1. PMCs could be retained in a standby capacity between operations.victorybriefs. At the same time. private firms could be assigned to run those unpopular missions. faster. as they did during UNAVEM III by harassing and attacking UN personnel. "used judiciously as part of longerterm conflict management efforts. Nevertheless. Sandline International successfully rescued UN soldiers operating in that country on several occasions with its fleet of combat and transport helicopters. Some UN members would undoubtedly still scoff at expanding upon this concept if the organization were to move in that direction. yet non-strategic conflict zones. and more risk-averse UN military forces can deploy to observe the peace. and more committed PMCs to deploy as vanguard forces to stabilize a conflict to a point when less capable. Journal of Military and Strategic Studies.com Page 160 of 229 PMFS CAN COMPLEMENT LONG-TERM UN PEACEKEEPING FORCES BY ACTING AS VANGUARD AND RAPID-REACTION FORCES. private firms would provide the teeth necessary to enforce compliance. 8.
Doug. private military agents: some implications of the privatised military industry for the humanitarian community”.victorybriefs. . If everything from prisons to welfare has been privatised. why not the protection and provision of humanitarian assistance? Proponents of this idea obviously include the companies who stand to profit from it. and leave ancillary security tasks to PSCs. however. There are also. February 2006. The use of locals and the long-term nature of these contracts (as opposed to frequent rotations that typical peacekeepers utilize) mean that the well-known problems and crimes associated with these kinds of operations are minimized. though publicly rejecting the use of PMFs. “Humanitarian principles. From Victoria Wheeler and Adele Harmer (eds). reportedly proposed engaging them to disarm Rwandan paramilitaries when he was head of UN peacekeeping operations (Mandel. the use of PSCs ensures that militaries proffered as peacekeepers can focus on enforcing their mandates.10PF6-Wikileaks www. President of the International Peace Operations Association. even UN Secretary-General Kofi Annan. The UN regularly uses PSCs in the field to protect their headquarters.ʼ where the West has largely abrogated responsibility for international peace operations to militaries from less developed countries. driven primarily by frustration at the international failure to take prompt action in places like Rwanda. PSCs are found in most international peace or stability operations from the Democratic Republic of Congo to Haiti. The combination of an increasingly perilous and difficult humanitarian environment and the rise of new marketised military capabilities has led some to call for a twenty-first century business solution to the twenty-first centuryʼs human security problems. 2003). December 2007. HPG Report 22. some surprising voices raised in its support. In an era of ʻWesternless peacekeeping. Singer. goes the reasoning. warehouses and personnel and sometimes to provide security (mostly unarmed) in refugee camps. THE FAILURE OF THE INTERNATIONAL COMMUNITY TO RESPOND ADEQUATELY TO HUMANITARIAN CRISES CREATES A CASE PMFS. and the sorry experiences of peacekeeping in Somalia. Peter Warren. Resetting the Rules of Engagement: Trends and Issues in Military–Humanitarian Relations. Senior Fellow and Director of the 21st Century Defense Initiative at the Brookings Institution. Council on Foreign Relations. Brooks. Bosnia and the DRC. “Private Security Contractors”.com Page 161 of 229 PMFS PLAY AN ESSENTIAL ROLE IN PEACEKEEPING.
Proponents of the expansion of privatisation note that. February 2006. Peter Warren. The contrasting experiences in Sierra Leone of Executive Outcomes and the UNʼs peacekeeping operation are the most often cited example of the promise of privatisation.10PF6-Wikileaks www. and the deployment by the British military. despite having a budget and personnel nearly 20 times larger than Executive Outcomes. The cost of a six-month operation to provide protected safe havens was estimated at $150 million (around $600. Supported by multinational mining interests. Singer. “Humanitarian principles. the government hired Executive Outcomes to rescue it. . private military agents: some implications of the privatised military industry for the humanitarian community”. Resetting the Rules of Engagement: Trends and Issues in Military–Humanitarian Relations. The RUF was defeated in weeks. during the genocide in Rwanda in 1994 the company could have deployed armed troops on the ground within 14 days of being hired. for the UN to create an environment in which the next set of elections could take place (Brooks. HPG Report 22. compared with the $3 million-a-day UN relief operation. From Victoria Wheeler and Adele Harmer (eds).com Page 162 of 229 PMFS ARE MORE EFFECTIVE THAN UN PKOS—SIERRA LEONE PROVES. Senior Fellow and Director of the 21st Century Defense Initiative at the Brookings Institution. In 1995. After Executive Outcomesʼ contract was terminated the war restarted. it took several years. According to Executive Outcomes. and in 1999 the UN was sent in. allowing Sierra Leone to hold its first election in over a decade.victorybriefs. 2000a and 2000b). the Sierra Leone government was near defeat at the hands of the Revolutionary United Front (RUF).000 a day).
. 2009. While there may be a myriad of political and historical reasons behind the actions of these governments. Similarly. companies that contract with the Pentagon are required to follow a set of rules known as the Defense Acquisition Regulation Supplement (DFARS). Furthermore. a notice that called for all private security companies operating in Iraq to register for a license by June 1 and established an oversight committee led by Iraqʼs Ministry of the Interior.10PF6-Wikileaks www. Jones. proposed guidelines for all US contractors working in Iraq.victorybriefs. Spring. Richard Armitage and Deputy Secretary of Defense Paul Wolfowitz. 239. they do indicate that there is a growing realization of the damage that can be caused to a State by its association with the improper actions of a Private Military Firm. This was followed in October 2005 by the Pentagonʼs release of a directive on the roles of functions of contractors on the battlefield. CONTINUES TO DEMONSTRATE COMMITMENT TO STOPPING ABUSES. The document clarifies the legal status of civilian contractors and provides detailed criteria for when contractors are permitted to carry weapons in Iraq. Before handing over power to the newly elected Iraqi government in July 2005. “Implausible Deniability: State Responsibility for the actions of Private Military Firms”. This contains a section on ʻContractor Standards of Conductʼ which now holds contractors working overseas accountable under US and international law as well as those of the host country. Int'l L. Oliver. the CPA established Memorandum 17. 24 Conn. J. in June 2004 the Deputy Secretary of State. Connecticut Journal of International Law.com Page 163 of 229 THE US HAS TAKEN STEPS TO MAKE PMFS MORE ACCOUNTABLE. US officials in Iraq have taken a series of steps to ʻreign inʼ PMFs as the transition to Iraqi government continues. Those weapons must only be used in self-defense.
This is important because that Convention is the only globally accepted law regarding mercenaries and therefore governs whether a contractor can be prosecuted as a mercenary. by or on behalf of a Party to the conflict. The most widely—though not universally—accepted definition of a mercenary is that in the 1977 Protocol I to the Geneva Conventions. Isenberg. (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict.victorybriefs.S. and (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces. are for decidedly nonkinetic functions. not meet that definition? First.com Page 164 of 229 PMFS ARENʼT MERCENARIES. There are at least 200 foreign and domestic private-security companies in Iraq. . David.10PF6-Wikileaks www. take a direct part in the hostilities. “Private Military Contractors and U. Grand Strategy”. (b) does. The debate over the widespread use of private military and security contractors today is still mired in anachronistic descriptions. Take.” Contractors doing functions that used to be done only by militaries are routinely described as mercenaries even though they clearly are not. (e) is not a member of the armed forces of a Party to the conflict. Contractors also include academics with PhDs. a majority of those working for a PMC are locals. for example. 2009. is promised. Researcher and leader of the Norwegian Initiative on Small Arms Transfers at the International Peace Research Institute. not all of them take a direct part in the hostilities. International Peace Research Institute Report. for a combatant to be considered a mercenary.e.” Second. in fact. It is by no means limited to the choice between people doing security work. for example.. working on the Armyʼs Human Terrain System. all of which must be met. material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party. (c) is motivated to take part in the hostilities essentially by the desire for private gain and. i. Why would someone working for a private security contractor in Iraq or Afghanistan. in fact. and as such are “a national of a Party to the conflict. carrying guns or performing logistics functions for the active duty military. the imprecise use of the term “mercenaries. The convention defines a mercenary as any person who: (a) is specially recruited locally or abroad in order to fight in an armed conflict. Furthermore the type of work that contractors do is enormously diverse. such as sitting in front of computer consoles at Regional Operations Centers and monitoring convoy movements. for example. Article 47 puts forward six criteria. Oslo (PRIO). UNDER THE CRITERIA ESTABLISHED IN THE GENEVA CONVENTION. Some consultancy services.
The American Interest Online. Encouraged by a “cost plus” billing system that has imposed little incentive for austerity. creating miniature Americas in the middle of a war zone complete with well-stocked gyms. For instance.cfm?piece=597 There also have been major coordination problems between contractors and military personnel.com/article-bd.10PF6-Wikileaks www. http://www. An example is the work of KBR and its affiliates in running a string of American military bases across Iraq and Afghanistan.the-american-interest. was hired to train the Iraqi army in 2003 and did such a poor job (admittedly for reasons not entirely under its control) that it set back the entire American war effort. Senior Fellow in National Security Studies at the Council on Foreign Relations. But the very opulence of these facilities has isolated American troops from the population and made it harder for them to pacify the country. there have often been hidden drawbacks. . The Vinnell Corporation. May-June 2009. and dining facilities offering multiple flavors of ice cream. Boot. In addition. they have performed amazing feats of logistics.com Page 165 of 229 NEGATIVE EVIDENCE COORDINATION PROBLEMS LEAD TO PMFS AND MILITARY UNITS WORKING AT CORSS PURPOSES. “The Mercenary Debate: Three Views”.victorybriefs. Even when contractors do an admirable job. in March 2004 four Blackwater contractors entered Fallujah without Marine commanders being aware of their presence. Max. Their subsequent murder triggered an ill-fated offensive that upset carefully laid Marine plans to reduce resistance in the city. for instance. there have been numerous reports of contractors overcharging for work or not delivering what was promised. PXs selling large-screen TVs.
com Page 166 of 229 PMF PERSONNEL ARE UNRELIABLE. “Private Military Companies and the Future of War”. it may forgo quality. “We thought we could depend on industry to perform these kinds of functions. April 2006. There is not the same information sharing between troops and contractors or among contractors. because civilian contractors failed to show up. Associate professor and director of the Institute for Global and International Studies at George Washington Universityʼs Elliott School of International Affairs.” PMFS HURT MILITARY INTEGRATION AND COORDINATION. Avant. WONʼT GO INTO DANGER VOLUNTARILY. both because changes require a contracting officer rather than flowing through the typical chain of command and because contracting for a particular outcome does not always fit into general plans for success. And difficulties arose with the contract instrument. Mahan Jr. General Charles S. the Armyʼs senior logistics officer.. The second practical issue is reliability. In Iraq.victorybriefs. both during the conflict and particularly as the insurgency accelerated in the spring and summer of 2003. Deborah. There are also risks that contractors will impede integrated responses to dangerous situations. Avant. at least to soldiers on the ground. “Private Military Companies and the Future of War”. April 2006. . If the government does try to minimize costs. hiring a company that will deploy fewer personnel or personnel with fewer skills or professionalism. Contractor rules of engagement in Iraq were also often unclear.[but it got] harder and harder to get [them] to go in harmʼs way. Foreign Policy Research Institute.10PF6-Wikileaks www. According to Lt. Foreign Policy Research Institute. Associate professor and director of the Institute for Global and International Studies at George Washington Universityʼs Elliott School of International Affairs. both of which could exacerbate worries that there is nothing compel contractors to remain on the battlefield once bullets begin to fly. Deborah. there were periodic reports that supply was inadequate.
a transparent and competitive market is needed.victorybriefs. Contracting almost always leads to less public scrutiny as government programs are hidden behind closed corporate doors. Companies. so that clients can pick and choose among different suppliers.-government agencies (between 1998 and 2003) were subject to bidding. Just 48 percent were competitive in 2005. however. are not subject to the Freedom of Information Act. the environment surrounding military interventions is not conducive to cost-savings and efficiency. heavy time constraints and the imperative of victory. Second. unlike agencies. With respect to the market in private military services. and in some cases (for example in certain areas of logistics) quasi-monopolistic. Furthermore. Thus. First. In terms of transparency and oversight. Oslo (PRIO). there is some reason to believe that outsourcing increases the cost of military functions.S. In general.com Page 167 of 229 PMFS INCREASE THE COST OF MILITARY OPERATIONS. competing offers must be systematically compared and the performance of suppliers on the contract terms has to be closely monitored.ʼ A separate study found that only 40 per cent of all contracts of U. The champions of the virtues of privatization and outsourcing with respect to the military generally forget one thing: the Pentagon is as far away from a free market as one can possibly get. Neither of these characteristics seems to apply to current contracting procedures. sanctioned. Warfare is usually characterized by secrecy. David. however. Grand Strategy”. There are two major reasons for this.S. Defenders of contracting for government services contend that the private sector is more cost-effective than the public sector. more than 50 per cent of all contracts are not subject to any monitoring to ensure the performance of suppliers with contract terms. if necessary. which makes it difficult to assess contract performance. not saving money. contracts must be subject to transparent bidding procedures. An analysis by The New York Times showed that fewer than half of all “contract actions”— new contracts and payments against existing contracts — are now subject to full and open competition. 2009. and. transparency is lacking. “Private Military Contractors and U. military commanders prepare for worst case scenarios. Isenberg. . thus always having a backup (or two or three) at hand. International Peace Research Institute Report. the market for private security services is only partially competitive. For the military commander the priority is accomplishing the mission. Researcher and leader of the Norwegian Initiative on Small Arms Transfers at the International Peace Research Institute. There is hardly time for either complex bidding procedures. supervise contractors and intervene when work goes off course because the number of government workers overseeing contracts has remained level as spending has shot up. down from 79 percent in 2001. Since then the numbers have only slightly increased.10PF6-Wikileaks www. Among other findings the Times reported: ʻAgencies are crippled in their ability to seek low prices.
Avant. Economists disagree on how to solve this problem at least in part because they use different variables. Deborah. Associate professor and director of the Institute for Global and International Studies at George Washington Universityʼs Elliott School of International Affairs. Researcher and leader of the Norwegian Initiative on Small Arms Transfers at the International Peace Research Institute. PSCs must pay a premium when they deploy personnel to risky areas. when measuring the savings of using retired special operations forces personnel. or when statistics measuring savings from outsourcing are based on hypothetical projections. Foreign Policy Research Institute. Isenberg. To determine the comparative cost. PSCs may be more expensive than military forces-particularly under circumstances when the US wants to provide the same level and quality of service as the military does or when there are high levels of danger.S. To the extent that the push toward increased privatization and outsourcing has been driven by considerations of lower cost and greater efficiency problems arise when cost reductions are assumed. for instance. While insurance rates for military personnel are set. government. one must do more than simply compare salaries. The costs and risks can be divided into two categories: practical and political. Active-duty personnel receive benefits other than their salary that make them more expensive. The latter issue came up in Iraq. Recruiters must deal with supply and demand. People working for PSCs in Colombia. But there are also additional costs for PSCs such as insurance.victorybriefs. We have all heard the stories of the inflated salaries of PSC personnel working in Iraq-some two or three times what an equivalent soldier would make. how do you factor in the hundreds of thousands of tax dollars used to train these ex-soldiers? Even more difficult can be attaching a dollar value to in-house military services. The huge demand for security precipitated by the Iraqi situation created a sellerʼs market. David. in fact.com Page 168 of 229 ANY POTENTIAL COST SAVINGS FROM PMFS ARE AMBIGUOUS AND DIFFICULT TO CALCULATE. It is. insurance rates soared and these costs were passed on to the U. . reported being offered three times their salary to move to Iraq. Grand Strategy”. Surge capacity comes at a high price. Oslo (PRIO). As the Iraqi context looked more dangerous than expected at the beginning of the war. Since military establishments often have a monopoly on service delivery and information regarding cost. “Private Military Contractors and U.S. obtaining accurate comparative information is not easy. PMFS ARE COSTLY.10PF6-Wikileaks www. For example. April 2006. “Private Military Companies and the Future of War”. quite difficult to compare the relative cost of private versus public security services. International Peace Research Institute Report. 2009. Heading the practical list is cost.
therefore. J. Oliver. discipline is sporadic and accountability is sparse. Int'l L. 24 Conn. Spring. is thin. However. “Implausible Deniability: State Responsibility for the actions of Private Military Firms”. A concern arises. Government oversight in these circumstances. . Their legal status is murky. 239.com Page 169 of 229 ACCOUNTABILITY MECHANISMS ARE KEY FOR PMFS. 2009. and must obey the military code of justice from their State of origin. such as the court martial system.10PF6-Wikileaks www. that PMF employees have the potential to commit human rights violations with impunity. Their very existence relies on conflict. while they share the field with military personnel. if present at all. PMF employees are not subject to the same accountability and discipline mechanisms as their counterparts in the armed forces. Military personnel exist within established legal structures. SINCE THEY OPERATE IN ARENAS WHERE THE POTENTIAL FOR ABUSES IS INHERENT. in which private contractors were integrally involved. However individual contractors and members of PMFs that have been hired by states are civilians and are therefore not part of this military chain of command. Connecticut Journal of International Law. confused lines of authority and improper procedures are largely credited with producing the Abu Ghraib prisoner abuses.victorybriefs. PMFs operate in an environment that is defined by violence. Jones. Poor supervision.
an American PMF. The information was turned over to the Bosnian police. DynCorp currently operates as a government-contracted PMF in Iraq. & Pol'y 489. 2010.com Page 170 of 229 PMFS ARE NOT ADEQUATELY REGULATED.S. Washington University School of Law. PMFs. PMFs also reportedly were involved in the torture scandal at Abu Ghraib prison in 2004. Government actors behave as irrational consumers. however. but none of the people involved were charged criminally.S. J. U.victorybriefs. Kemp. but none involved were disciplined. Reports emerged that DynCorp employees were buying and trading young women and girls.10PF6-Wikileaks www. the United States contracted with DynCorp. outside of regular market forces and with inadequate oversight. and the U. hiring PMFs despite serious allegations of abuse of power. J. During the Balkan Wars. . (2010). the United States still employs private contractors overseas. 2000. U. Washington University Journal of Law & Policy. military police raided Dyncorp's facilities. Police Task Force in Bosnia. On June 2.N. “Note: Private Military Firms and Responses to Their Accountability Gap”. operate. 32 Wash. The demands of a competitive market should create a disincentive to work for an unpalatable government or organization. ENGAGE IN SUBSTANTIAL ABUSES OF POWER INCLUDING THE SEX TRADE.L. to some degree. John S. Army confirmed several of the allegations. to assist the U. Even with serious allegations directed at PMF employees.D. Despite the incident.
Grand Strategy”. Researcher and leader of the Norwegian Initiative on Small Arms Transfers at the International Peace Research Institute.S. Isenberg. and in May 2002 the Justice Department issued new guidelines that allow companies to challenge the release of information to the public under the Freedom of Information Act. under the jurisdiction of the Arms Export Control Act.10PF6-Wikileaks www. . The difficulty in obtaining adequate information to judge the cost and efficiency of PMCs stems from several sources. International Peace Research Institute Report. But the level of review and inquiry that either branch gives to licensing decisions under the AECA is unclear.com Page 171 of 229 PMFS ARE CLOSED TO PUBLIC SCRUTINY AND DIFFICULT TO HOLD ACCOUNTABLE. David. A regulatory framework that guaranteed adequate executive supervision and congressional oversight would be an improvement. Because many PMC sell their services through the Foreign Military Sales program they should be regulated through the U.” the State Department interpreted this narrowly. “Private Military Contractors and U.victorybriefs. 2009. export control regime. Oslo (PRIO). While the AECA stipulates that the names of the client countries and the types of defense articles or services involved “shall not be withheld from public disclosure unless the President determines that the release of such information would be contrary to the national interest.S. This lack of transparency and oversight makes it virtually impossible for the public to assess the practice of private military contracting.
No one then anticipated that we would employ 160. they hired private companies such as KBR. These include allegations that hired interrogators were implicated in the abuses at Abu Ghraib prison in Iraq and at the Bagram detention facility in Afghanistan.000 would carry guns. . RESULTING IN HARM TO CIVILIANS AND US IMAGE.cfm?piece=597 In the 1990s. Senior Fellow in National Security Studies at the Council on Foreign Relations. In a bid to escape its notoriety. which won its first Logistics Civil Augmentation Program (LOGCAP) contract in 1992. resulted in poorly trained.W. Blackwater Worldwide has now changed its name to Xe. This has caused numerous problems that have received plenty of attention from the press and antiwar partisans. not caring that they leave hatred in their wake. In January 2009 the government of Iraq revoked Blackwaterʼs license to operate in that country. But an even bigger issue has been the fact that contractors are paid only to achieve narrow objectives—typically getting a convoy or VIP from point A to point B. one Blackwater employee has already pled guilty and agreed to testify against his former colleagues.S. “The Mercenary Debate: Three Views”. Broader counterinsurgency concerns such as maintaining the support of the local populace are not on their agenda. as some conspiracymongers have it. careening through traffic. Bush and Clinton Administrations cut the size of U. government had no choice but to rely on private firms to perform functions. active-duty armed forces by a third.victorybriefs.com Page 172 of 229 THE DEMAND FOR ENORMOUS NUMBERS OF PMF CONTRACTORS HAS LED TO QUESTIONABLE HIRING PRACTICES AND POOR TRAINING. in the rush to fill burgeoning requirements. The most highprofile case cited by critics was the September 16. U. To perform many of the functions once undertaken by soldiers. This has been the consequence in part of questionable hiring practices that. undisciplined gunslingers being set loose in a war zone.10PF6-Wikileaks www. http://www. but because the forces they sent into Iraq were too small for all the tasks thrown their way. prosecutors have also filed charges of manslaughter against five Blackwater employees. The American Interest Online.S. there have been plenty of other instances of contractors in Iraq shooting wildly.000 to 50. and it proved largely uncontroversial until the war in Iraq. The U. and causing unnecessary mayhem.S.the-american-interest. the George H.000 contractors in Iraq. that in the past would have been undertaken by soldiers. 2007 deadly shooting in Baghdadʼs Nisour Square. Max. Whatever happened in Nisour Square (a court must still sort out the facts). because George W. Boot. May-June 2009. Bush and Dick Cheney sought to undermine the Constitution or pay off their big business buddies. This massive use of contractors came about not.com/article-bd. of whom 20. such as safeguarding convoys and dignitaries. Thus they are often too heavy-handed in protecting their charges. This shift was supposed to bring cost-savings and greater efficiencies.
com Page 173 of 229 PRIVATE CONTRACTORS ARE HARDER TO HOLD LEGALLY ACCOUNTABLE THAN REGULAR SOLDIERS. Boot. But it is not clear to what extent they can be held liable under U.-Iraq Status of Forces Agreement in late 2008. government. Max.S. Boot. That was just as well.S. the ultimate paymaster. after five years of war in Iraq. Senior Fellow in National Security Studies at the Council on Foreign Relations. was the first contractor convicted of a crime—an Iraqi-Canadian translator who stabbed a colleague. Congress has passed legislation to specify that contractors fall within the Uniform Code of Military Justice as well as civilian law (the Military Extraterritorial Jurisdiction Act). “The Mercenary Debate: Three Views”.10PF6-Wikileaks www. “The Mercenary Debate: Three Views”.cfm?piece=597 Another way to enhance accountability would be simply to put contractors into U. It would make sense to expand this effort to sign up more foreign recruits (even those with no prior military experience) who would be willing to serve for a set period in return for one of the worldʼs most precious commodities: American citizenship. Most American contractors are already veterans. there are obvious difficulties in conducting investigations and prosecutions in the middle of a war zone. hundreds of soldiers have been court-martialed. In addition. Such an organization might raise some hackles. The problem is that contractors operate in a gray area of the law. Max.com/article-bd.victorybriefs. but there are questions about whether these provisions will withstand legal scrutiny. May-June 2009. given the corruption and limited capacity of Iraqi courts in the immediate post-Saddam period.cfm?piece=597 It is scandalous that only in 2008. http://www. military uniforms. Until the conclusion of the U. but a change in Department of Defense regulations would be necessary to enroll their foreign counterparts. but it would be less “mercenary” and more accountable than the legions of contractors currently hired on an ad hoc basis. Senior Fellow in National Security Studies at the Council on Foreign Relations. and there is no reason to think that contractors are better behaved than their uniformed counterparts—quite the opposite. http://www.S. The American Interest Online. We could even create a “Freedom Legion”. . The Pentagon has already launched a trial program to enlist a thousand foreigners who have vital linguistic or medical skills that are in short supply in the force today. made up of foreign-born recruits led by American officers and NCOs. By contrast.S.the-american-interest. May-June 2009. especially when they often operate under Byzantine subcontracting arrangements that obscure their relationship with the U. ENLISTING CONTRACTORS INTO THE REGULAR MILITARY WOULD MAKE THEM MORE ACCOUNTABLE TO THE MILITARY CHAIN OF COMMAND. on the model of the French Foreign Legion.the-american-interest.com/article-bd. The American Interest Online. they enjoyed immunity from prosecution under Iraqi law. law.
After a trial by court martial. the Court of Military Appeals considered in United States v. United States ex rel. was convicted by a court martial of conspiracy to commit larceny and attempted larceny. John S. Three years later. as enacted. the Code described a system of court martial to try violators of its provisions.com Page 174 of 229 MULTIPLE SCOTUS DECISIONS HAVE MADE IT IMPOSSIBLE TO HOLD PMFS ACCOUNTABLE THROUGH REGULAR CHANNELS OF MILITARY JUSTICE. U. Kinsella.victorybriefs.10PF6-Wikileaks www. As a result. The UCMJ has two components that appear to criminalize contractors' criminal conduct. the UCMJ was mostly ineffective at holding civilians criminally liable while accompanying the Armed Forces overseas. PMF employees often escape liability for criminal behavior. 32 Wash.D. n86 Thus. an Air Force sergeant. n85 Second. The Covert defendant was a civilian woman who murdered her husband. 2010. so Averette was not triable by court martial. However. the UCMJ appears to subject contractors to courts martial for the crimes they commit overseas. which the Vietnam War was not. Article 2(11) extends the jurisdiction of the Code to people serving or accompanying the Armed Forces overseas. The court held that the UCMJ applies only when there is a declared war. in Reid v. Covert's conviction and held that courts martial are not an appropriate forum for trying civilians who accompany the Armed Forces overseas in times of peace. (2010). while they were living on a military airbase in England. & Pol'y 489. Washington University Journal of Law & Policy. The Supreme Court reversed Mrs.L. After Reid. in Kinsella v. a civilian employee of an Army contractor in Vietnam. First. J. Singleton. Covert. she was convicted of murder under Article 118 of the UCMJ. Washington University School of Law. Averette whether the UCMJ should apply to civilians. Raymond Averette. PMFs' accountability while working outside the United States is unclear. Justice Harlan recommended limiting the Court's decision to capital crimes. The Uniform Code of Military Justice ("UCMJ") seemingly provided a framework under which contractors could have been held criminally liable while working for the United States abroad. “Note: Private Military Firms and Responses to Their Accountability Gap”. In 1970. the Court explicitly rejected the notion that a civilian could face a trial by court martial for a non-capital offense. The plurality opinion called it unconstitutional to hold trials by court martial under such circumstances. the Supreme Court rejected such a broad interpretation of the UCMJ. Concurring. . Kemp. J. and Averette.
their legal status is unclear. unless they are commissioned by governments.victorybriefs. . an important practical risk is the lack of legal clarity.10PF6-Wikileaks www. April 2006. AND LACK OF ACCOUNTABILITY. it is not clear how to hold them accountable. The legal status of personnel deployed by PSCs is often unclear as are the mechanisms by which their rights and responsibilities are meted out. They may not be accorded POW status if captured by the enemy and can be executed as an illegal combatant or charged with murder if they kill another. Again. Foreign Policy Research Institute.com Page 175 of 229 THE AMBIGUOUS LEGAL STATUS OF PMFS CREATES BOTH RISKS FOR THEIR PERSONNEL. DynCorp employees working in the Balkans implicated in sex trafficking and prostitution rings were simply fired. but just how this will work is not clear. they are neither combatants nor noncombatants. The laws of war have been designed for traditional militaries. private security personnel are not governed by military justice systems. Congress has since passed legislation enabling cases like these to be tried in American courts. For private security personnel. This poses problems for both private security personnel and those they operate around. particularly where there are weak local institutions. This legal limbo also introduces more risks from security personnel. Unless they are commissioned by a government. Avant. Deborah. This can pose serious risks for individuals. Associate professor and director of the Institute for Global and International Studies at George Washington Universityʼs Elliott School of International Affairs. Finally. When private security personnel break laws. “Private Military Companies and the Future of War”.
However. “Implausible Deniability: State Responsibility for the actions of Private Military Firms”. the soldiers implicated in the Abu Ghraib scandal have faced a variety of criminal punishments. contracts with PMFs often work to circumvent Congressʼ role in military spending and in overseeing the deployment of military forces. Jones. So far. in which private contractors were integrally involved.10PF6-Wikileaks www. Poor supervision. J. unlike their military co-workers. have not yet been charged with any crimes. Oliver. they allow it to avoid the public debate that may moderate or limit government proposals. 2009. In general.victorybriefs. a CIA contractor who was sentenced to over 8 years imprisonment for beating an Afghan detainee to death during an interrogation at the Asadabad base in Afghanistan. A number of contractors were named in the Taguba report into the abuses. despite at least 20 alleged cases of abuse that have been referred to the Justice Department. In Afghanistan there has been one exception to this prevailing trend: the prosecution of David Passaro. while facing civil lawsuit. 239. however.com Page 176 of 229 PMF PERSONNEL HAVE NOT BEEN HELD ACCOUNTABLE FOR THEIR INVOLVEMENT IN ABUSES LIKE ABU GHRAIB. therefore. Private Military Firms allow governments to carry out action that would generally not gain legislative or public approval. In the process the public is disconnected from the foreign policy of its own state. 24 Conn. the employees of Titan and CACI. the lack of legal accountability is connected to a lack of public monitoring and oversight. Int'l L. In the United States. Spring. confused lines of authority and improper procedures are largely credited with producing the Abu Ghraib prisoner abuses. At the very least. Connecticut Journal of International Law. .
In any event. The only other way that jurisdiction can be exercised over PMF employees is through domestic laws of extraterritorial operation. Oliver. and there is no indication it will apply to past abuses. The US pastiche of laws represents the most comprehensive regulatory regime enacted by any State. as one commentator has pointed out. Connecticut Journal of International Law. It is astounding. Int'l L. much will depend on the type of service provided.com Page 177 of 229 THE US REGULATORY REGIME FOR PMFS IS INADEQUATE AND FULL OF LOOPHOLES. rather than its dollar value. However it remains plagued by loopholes.10PF6-Wikileaks www.victorybriefs. despite these laws being on the books. Jones. as Singer points out. 239. and it therefore remains largely untested. such as the US War Crimes Act or Torture Act. J.000 contractors serving in Iraq for over two years. 24 Conn. In any event. the US has taken little enforcement action under them. “Implausible Deniability: State Responsibility for the actions of Private Military Firms”. the governmentʼs willingness to enforce these laws is also suspect. that with 20. . 2009. In any event. Spring. Only one further action has been brought under the nascent MEJA. there has been just one prosecution. the MEJA only applies to felonies under US law. gaps and lax enforcement. In addition. However. Contracts can easily be split up so that they do not reach the $50 million threshold and avoid Congressional oversight. these laws only apply to the most serious of crimes and hence neglect a vast array of PMF misdemeanors.
U.S.S. the contractor simply fled back to the United States on the next flight out” making prosecution impossible. In one case from the Balkans. Canada. Such contractors have immunity only for actions taken in relation to their official duties. SFOR contractors also reportedly participated in sex trafficking during the Bosnian mission. “Private Military Contractors. Although there was no evidence that SFOR soldiers participated in trafficking-related activities in Bosnia. like IPTF monitors. army investigators. SFOR contractors in Bosnia were hired through DynCorp under a Department of Defense contract.” One such contractor “purchased a trafficked Moldovan woman and an automatic weapon in a package deal from a brothel owner” for the price of $740. Paper prepared for presentation at the International Studies Association. Human Rights Watch documented “at least eight cases of U.S. Peacekeepers. The SFOR contractors in question “faced allegations of buying women. and half were on contract to the State Department as police officers in the UN Mission in Bosnia and Herzegovina. In most instances. courts or abroad for trafficking or for purchase of a human being as chattel. Armyʼs Criminal Investigation Division stated that approximately five DynCorp staff (contracted to SFOR) had been “involved in white slavery. Along with IPTF monitors. U. civilian contractors faced fewer restrictions on their freedom of movement.S. but was never prosecuted upon return to the U.10PF6-Wikileaks www. contractor involvement in sex trafficking-related activities in Bosnia has been closely scrutinized. as have been instances of trafficking facilitated by contractors in Bosnia. March 2011.S. according to his confession to U.com Page 178 of 229 US-EMPLOYED MILITARY CONTRACTORS HAVE BEEN HEAVILY INVOLVED IN SEX-TRAFFICKING. Associate Professor of Political Science.S. “a . A report based on an investigation by the U.nightclubs as a result. Yet “no U. Montreal.S. and the Sexual Exploitation of Women in Conflict Zones”. transporting trafficked women. the American had already left the country. Like their IPTF counterparts. and a local judge sought to interview him the following day as a potential witness against the owner of the club. Valerie. were not prosecuted locally for their alleged traffickingrelated crimes.S. contractor has ever faced criminal prosecution in U. but. and were able to visit brothel. When an American SFOR contractor was caught during a March 2001 raid of a local nightclub/brothel.victorybriefs. in part because they were repatriated before investigations could get off the ground.” U. once the purchase was discovered overseas. Other cases of contractors purchasing trafficked women have been documented.S. Sperling. and violence against trafficked women. Clark University. contractors who allegedly purchased trafficked women and girls as chattel”—half of them were private contractors with the Department of Defense. Also participating in the Bosnian mission was a NATO-led stabilization force (SFOR). Between 1999 and 2002. along with its own contractors – civilians providing logistical support to the troops in the area.” purchasing women from brothels and selling them back “when tired of the women.
S. which made Department of Defense contractors subject to U.S.S. Ben Johnston.S.” His testimony also described a pornographic videotape made in Bosnia in which his boss. for trafficking offenses. although they are part of a U. A former DynCorp employee. Congress) to contractorsʼ engagement with the sex-trafficking system. . contractor country manager made ad hoc arrangements with local police to ensure that any of his personnel caught conducting illegal activities in the host nation would be immediately placed in his custody” from whence they would be swiftly repatriated to the United States. pull-out from Bosnia and Herzegovina in November 2004.” Johnston testified: “There is my supervisor.” As of April 2006. the biggest guy there [in Bosnia] with DynCorp.victorybriefs.10PF6-Wikileaks www.” Contractors in such a system face no accountability for their actions.S. felony law while working abroad. but that guy now. girls saying no. to my knowledge. videotaping having sex with these girls. he is in America doing fine. the DynCorp contract manager “appeared to rape a female. mission. contractors continued.S. there had been no prosecutions of any peacekeepers from the U. There was no repercussion for raping the girl.S. Despite the passage of The Military Extraterritorial Jurisdiction Act (MEJA) in 2000. the purchases of women by U. similarly testified (to the U.com Page 179 of 229 U. “right up until the U. explaining that DynCorp employees could bring trafficked women onto “locked-down military installations because the [UN] vans will not get searched if you drive them on post.
Valerie. particularly because U. is plausible only if significant evidence in the case has been collected. prosecutor in the Criminal Division of the Department of Justice to investigate the case abroad. Peacekeepers. relying almost entirely on witnesses from the U. March 2011. Sperling. however. When trafficking cases occur involving peacekeepers. Clark University. contractors under either MEJA or the TVPRA. Valerie. By contrast. and the Sexual Exploitation of Women in Conflict Zones”. Gathering such evidence after repatriation is impractical.S. military instead. military personnel from other countries were also found to be more likely to be involved in such activities. Rapid repatriation. Peacekeepers. In contradiction to the DOD reportʼs findings. Department of Defense contractors working for SFOR were not “subject to the same restrictions that are placed on U. armed forces in the Balkans having engaged in prostitution or supporting sex trafficking. or victims” who would have been most likely to provide relevant evidence.S. Sperling. military personnel. Canada. military involvement with trafficking and prostitution was perhaps not surprising. Paper prepared for presentation at the International Studies Association. military personnel could leave their bases only under limited conditions.10PF6-Wikileaks www. Montreal. to find the woman (or women) in question. Canada. Service members” and are allowed to “circulate in host country communities” in some cases. . military forces frequented prostitutes and trafficked women there. Paper prepared for presentation at the International Studies Association. A Department of Defense report from December 2003 concluded that there was “negligible evidence” of U. Once a U.S. given the fact that the inspectors failed to “interview local police near the base in Bosnia.S.S.S.S. a special forces officer who served in Bosnia and a lieutenant colonel billeted to NATO in Kosovo both confirmed that U. Compared to U.S. serves as a significant obstacle to prosecuting U.S. Associate Professor of Political Science. Montreal.S. and the Sexual Exploitation of Women in Conflict Zones”. and to convince her to testify in order to build a prosecutable case. “Private Military Contractors.-contracted peacekeeper is repatriated. it would take enormous effort and expense for a U. March 2011. Associate Professor of Political Science. The finding of only “negligible evidence” of U. Prosecution in the U. Clark University. “Private Military Contractors.S.com Page 180 of 229 REPATRIATION OF CONTRACTORS FACING CRIMINAL ACCUSATIONS MAKES PROSECUTION AND CONVICTION DIFFICULT. CONTRACTORS ARE LESS ACCOUNTABLE FOR SEX CRIMES THAN MILITARY MEMBERS. the UN typically collects little data. brothel owners near the bases in Bosnia or Kosovo. shelter directors. contractors enjoy relative impunity in cases of alleged sex trafficking. however.victorybriefs.
But states bear responsibility for the actions of contractors they employ.com Page 181 of 229 PMFS ALLOW GOVERNMENTS TO AVOID RESPONSIBILITY FOR THE POLICIES THEY PURSUE. Grand Strategy”.” She speculates that it had circumvented or impeded “effective public consent. 2009. and policymakers have shown little interest in the latter. and concludes that the use of private security contractors in Iraq had “impeded constitutionalism and lowered transparency. indirectly.S. The use of contractors has other deleterious effects.S. including the weakening of our system of government. Oslo (PRIO). public) opposition. identifies three features that are common to democracies—constitutionalism. Isenberg.” Because Congress has less information about and control over the use of contractors than the use of troops. . The United States is the world's leading user of private contractors because the U. A state employing contractor personnel to advance its foreign policies faces less international responsibility in terms of attribution than would be the case if it relied on its own armed forces. a professor of political science at the University of California at Irvine and the Director of International Studies and the Center for Research on International and Global Studies. government has assumed the role of guarantor of global stability at a time when the American public is unwilling to provide the resources necessary to support this strategy. especially with respect to contractors functioning as the equivalent of the statesʼ armed forces. RELIANCE ON PMFS WEAKENS DEMOCRATIC CHECKS ON GOVERNMENT. Washington either has to use private contractors to fill the gap between goals and means or else change its goals. Isenberg. Grand Strategy”. International Peace Research Institute Report. David.S. They should not be allowed to evade responsibility. transparency and public consent.10PF6-Wikileaks www. “Private Military Contractors and U.victorybriefs. International Peace Research Institute Report. Researcher and leader of the Norwegian Initiative on Small Arms Transfers at the International Peace Research Institute. David. the White House and the Pentagon can rely on contractors to evade congressional (and. “Private Military Contractors and U. Oslo (PRIO). Researcher and leader of the Norwegian Initiative on Small Arms Transfers at the International Peace Research Institute. 2009. Deborah Avant. Governments also rely on contractors in order to shift responsibility and blame for their actions.
the government risks both its legitimacy and the loyalty of its citizens.” The disconcerting notion of soldiers with a profit motive ties into the idea that the state should have a monopoly over the use of formalized violence. Serious ethical questions are raised when PMFs enter into business relationships that allow them to profit from conflict. Washington University Journal of Law & Policy. While a PMF may contract with a friendly state. Kemp. a fact made apparent by H. This is an unsettling idea.L. 2010. 2740's calls for increased regulation of the industry. government-run society is conditioned in many ways upon the guarantee of safety. Above all. and “the firms often provoke a quite hostile reaction and have been viciously attacked in the public arena. In modern society. By contracting out this core function. J. The Blackwater shooting in Nisour Square was not the first troubling incident involving PMFs.R. it is free to work with any group no matter the moral or strategic ramifications. Because their services are only useful during conflict. One area of particular concern involves the structure and purpose of PMFs.10PF6-Wikileaks www. “Note: Private Military Firms and Responses to Their Accountability Gap”. AND UNDERMINE THE PERCEPTUAL LEGITIMACY OF GOVERNMENT. . U. The legal accountability of PMFs generates great concern. J.com Page 182 of 229 PMFS HAVE INCENTIVES TO PROVOKE AND PROLONG CONFLICT.D. John S.the drafting of H.and arguably precipitated . (2010). Membership in a formalized. 32 Wash. are not obligated to act in their home government's interest. 2740. security is an essential government function that citizens expect in return for their membership in society. they are businesses that strive to make profits. PMFs. unlike the military.R. Several controversial aspects of PMF structure and behavior preceded . they arguably profit from conflict. & Pol'y 489.victorybriefs. Washington University School of Law.
Foreign Policy Research Institute. “Implausible Deniability: State Responsibility for the actions of Private Military Firms”. and perhaps the determinative reason for State outsourcing of military force has been what Michaels terms ʻtactical privatizationʼ – the privatization of functions not for economic benefit. In the longer term. Int'l L. Using PSCs may undermine the connection between military professionalism and public service. Connecticut Journal of International Law. “Private Military Companies and the Future of War”. 239. but for political benefit.S. . A central. The image of military firms as private and independent allows States to carry out ʻcovertʼ foreign policy. Jones. The ʻguise of private commercial enterpriseʼ allows PMFs to be used as a proxy of the State and a tool of foreign policy. J. it advantages the executive branch over the legislature. hires contractors. as it is perceived that such regulation would decrease the ʻresponsibility gapʼ between State and firm. The political process works differently when the U. without suffering the political costs normally associated with a military deployment. It is less transparent. Avant. PMFS ACT AS FOREIGN POLICY PROXIES FOR STATES. and sometimes it gives influence to the foreign government or private corporation that pays for the service. Oliver. The second category of risks are longer term and political. PSCs also pose some risks to public military institutions. 24 Conn. Many contracts between PMFs and States contain non-disclosure clauses and are deemed confidential by both parties. In the immediate term they may recruit away soldiers and dampen retention rates. public may not support. April 2006.victorybriefs.S.10PF6-Wikileaks www. when PSCs begin to take over some tasks. This obstacle is not necessarily present when considering purely domestic privatization. They have more to do with the nature of public institutions and the relationship between war and the public good. the tasks lose some of their exclusive public character. GIVING THEM DENIABILITY ON POLITICALLY RISKY OPERATIONS. This is the major barrier to increased regulation of PMFs by States. preventing public oversight and criticism. States gain many benefits from the current unregulated environment. Spring. Deborah. All of this can lead to the use of private security for goals the U.com Page 183 of 229 PMFS ENDANGER THE TRANSPARENCY OF THE POLITICAL PROCESS AND THE CHARACTER OF MILITARY SERVICE. Associate professor and director of the Institute for Global and International Studies at George Washington Universityʼs Elliott School of International Affairs. 2009. operating without its symbolic or legal imprimatur.
Its involvement in the ongoing conflict in Colombia is subject to strict Congressional oversight and limitations on troop deployments. 239. The use of PMFs. In Iraq. Spring. 24 Conn. PMFs hide the true costs of war. and the outcome of conflicts vital to its interests. the use of contractors allows the Bush Administration to avoid ʻAmerican soldiers coming off cargo plans in bodybags draped with the flag. In an environment in which the public have come to expect zerocasualties. Jones. . The US use of MPRI in both Croatia and Bosnia allowed it to maintain an image of neutrality while at the same time influencing policy. frees the Executive from these limitations. 2009.victorybriefs.com Page 184 of 229 THE EXECUTIVE BRANCH HAS USED PMFS TO EVADE CONGRESSIONAL OVERSIGHT. to prevent a ʻVietnam-styleʼ escalation of the conflict. “Implausible Deniability: State Responsibility for the actions of Private Military Firms”.10PF6-Wikileaks www. Oliver. Int'l L. Defense Systems Limited has done the same for the British government in similar circumstances. HIDE THE COSTS OF WAR. effectively outsourcing the ʻtough decisionsʼ of political management. The United States has taken advantage of these political cost savings in a range of situations. J.ʼ or the need to summon Reservists. however. Connecticut Journal of International Law.
S.victorybriefs.com Page 185 of 229 PMFS LET THE US MILITARY CONTINUE TO ACT AS GLOBAL POLICEMAN DESPITE LACK OF PUBLIC SUPPORT FOR THAT ROLE. governmentʼs huge and growing reliance on private contractors constitutes an attempt to circumvent or evade public skepticism about the United Statesʼ self-appointed role as global policeman. it reinforces the tendency to approach global crises in a unilateral.S. International Peace Research Institute Report. The truth is that the United States is by far the worldʼs largest consumer of such services. As the United States relies more heavily upon military contractors to support its role as world hegemon. U. Researcher and leader of the Norwegian Initiative on Small Arms Transfers at the International Peace Research Institute. The low visibility and presumed low cost of private contractors appeals to those who favor a global U. RELIANCE ON PMFS ENCOURAGES UNIALTERALISM AND BURDENS THE US ECONOMY. And by using contractors the United States also shift responsibility and blame for its actions. Grand Strategy”.10PF6-Wikileaks www. Oslo (PRIO).e. David. One can argue for and against such contractors but what nobody wants to discuss is that the U. The debate over whether and how to utilize private military and security contractors generates much heat but not much light. The U. as opposed to multilateral manner.. “Youʼre a mercenary. military presence. This did not happen by accident. Private contractors fill the gap between geopolitical goals and public means. further ensuring that the burdens will be carried disproportionately by U. which is that that contracting is both part of war and part of maintaining a global military hegemonic presence. use of PMCs is inevitable until people grasp the key point. While contractors have worked with the government since the countryʼs founding their role has grown as Washington has reduced the size of the U. . taxpayers. Decades ago the government made a deliberate decision to both privatize and outsource military functions and activities that had traditionally been done in the public sector.” “No Iʼm not. grand strategy. 2009.” Such rhetoric is silly and distracting and prevents people from facing underlying realities which are rarely dealt with publicly.S. i.S. and as those forces have become strained by the demands of U.S. but fear that such a strategy cannot command public support.S. “Private Military Contractors and U.S. government has assumed the role of guarantor of global stability at a time when the American public is unwilling to provide the resources necessary to support this strategy.S. military in the post-Cold War era. In many case the level of discourse resembles childrenʼs name calling. Isenberg.
it reinforces the tendency to approach global crises in a unilateral.com Page 186 of 229 PMFS ENCOURAGE UNILATERALISM. David. “Private Military Contractors and U. Isenberg. can often more readily satisfy the United Statesʼ operational requirements than can our allies and prospective regional partners. Other states have not kept up with the ongoing qualitative changes in the United States military. Grand Strategy”.S. taxpayers. 2009.10PF6-Wikileaks www. military contractors have not only geared themselves to serving the American marketplace. International Peace Research Institute Report. . Researcher and leader of the Norwegian Initiative on Small Arms Transfers at the International Peace Research Institute.victorybriefs. military. troops. further ensuring that the burdens will be carried disproportionately by U. As the United States relies more heavily upon military contractors to support its role as world hegemon. they have been instrumental in bringing about those changes within the U. The marketplace. their armed forces are not readily deployable nor easily interoperable with American personnel and equipment.S. In contrast. as opposed to multilateral manner. Oslo (PRIO).S.S. in other words. and especially U.
PMFS UNDERMINE THE STATEʼS MONOPOLY ON VIOLENCE. 2009. An overall global pattern is emerging. It is a far more complex story. By the start of the twentieth century. states. “Private Military Contractors and U. and privatizing it to the market. the stateʼs role in the security sphere has now become deprivileged. International Peace Research Institute Report.com Page 187 of 229 PMFS MAKE THE USE OF MILITARY FORCE MORE POLITICALLY CONVENIENT. Researcher and leader of the Norwegian Initiative on Small Arms Transfers at the International Peace Research Institute. Senior Fellow and Director of the 21st Century Defense Initiative at the Brookings Institution. My assertion is not that the state or the public military profession are disappearing. corporations. Corporate Warriors: The Rise of the Privatized Military Industry. one of growing reliance on individuals.10PF6-Wikileaks www. military. 2007. By removing absolute control from government. and international organizations on military services supplied not just by public institutions but also by the nonsovereign private market. however. For in many areas. The provision of security has long been recognized as the most important function of government. Bluntly put. Grand Strategy”. Isenberg. the stateʼs hold over violence is broken. Peter Warren. David. Oslo (PRIO). the death of even a single infantryman or marine routinely winds up on the front page of the major papers. Cornell University Press. this cartelization of state power has proven short-lived. .S.victorybriefs. The changes that this phenomenon portends are tectonic.S. the power of PMFs has been utilized as much in support of state interests as against them. because the use of PMC receives less attention than the use of regular troops. if someone is contributing to the war effort but is not on active duty in the U. By contrast. just as it has been in other international areas such as trade and finance. The start of the twenty-first century has begun to see the Weberian monopoly of the state slowly break down. On a broader level. With the growth of the global military services industry. nobody beyond his or her immediate family cares if they get killed. state control over the means of violence had been institutionalized through a process that spanned centuries. Singer. But as long as it took to develop. The emergence of a privatized military industry may well represent the new business face of warfare. this reduces the political cost of using force.
Int'l L. The Pentagon now says that it has ʻno idea how many [PMF] workers it actually employs. and increase the chances of abuses of authority taking place.ʼ The utilization of nobid task orders under umbrella contracts creates latent difficulties in assessing performance in conflict situations. lead to a lack of control and accountability for contractor. The separation of the contract officer from the contractor on the ground means that the limited standards that do exist for PMF conduct and coordination with military forces are either not known or not enforced These contract enforcement failures are pervasive and basic. “Implausible Deniability: State Responsibility for the actions of Private Military Firms”. MARKET INCENTIVES FAIL SINCE THEREʼS NO GUARANTEE THEYʼRE ACTUALLY MEETING THEIR CONTRACTUAL OBLIGATIONS. Oliver. J. severe problems in monitoring and coordinating the making and performance of contracts with PMFs have arisen. 2009. Connecticut Journal of International Law.com Page 188 of 229 PMF PERFORMANCE IS HARD TO MONITOR. Moreover. Neg Cards . 24 Conn. Spring.10PF6-Wikileaks www.victorybriefs. Jones. 239.
pp. government against recognition of the Kosovar independence movement. n70 Thus the use of private security companies and private military firms has been upheld as a way to transfer skills and know-how "in an age when governments do not have the resources or political will to enter internal skirmishes or civil wars on behalf of recognized regimes. n69 MPRI also trained members of the Kosovo Liberation Army (KLA) at secret bases in Albania under a Pentagon license. 58. despite the official stance by the U.S.10PF6-Wikileaks www.victorybriefs. the United States had voted to institute those sanctions. “Military Privatization: Efficiency or Anarchy?” 6 Chi. MARK CALAGUAS [Loyola University Chicago School of Law. in 1995 the American company MPRI trained Croatian forces to great success during their struggle against the Serbians.-Kent J. n67 However. Int'l & Comp. L. the legitimacy of the practice has been attacked as a "clean hands" approach to foreign policy that "appears dangerous to those who see transparent nation-state accountability as essential to controlling [*69] human rights violations and the type and quality of military activity throughout the world. government to provide unofficial aid to certain groups in circumstances where the U.S. 68-69 An often-overlooked reason for employing private contractors is that this strategy allows the U. As previously mentioned." n72 . n68 Incidentally.S.com Page 189 of 229 PMCS ALLOW GOVERNMENTS TO GIVE UNOFFICIAL MILITARY SUPPORT TO PARTICULAR GROUPS WHILE MAINTAINING A GUISE OF NEUTRALITY." n71 However. may fear attracting controversy or violating standards of neutrality. such assistance was in violation of United Nations sanctions against the provision of military aid to the Croatians. 2006]. Juris Doctor.
the sheer waste involved indicates a lack of proper foresight during the negotiation of that contract. L. Let's get it done right and save lives.victorybriefs.com Page 190 of 229 THERE IS NO EVIDENCE THAT PMCS ARE ACTUALLY COST EFFECTIVE RELATIVE TO CONVENTIONAL FORCES. pp." n79 . "[w]artime is not about efficiency. n73 On the other hand. "[s]ometimes the government pays more money for greater flexibility or greater capacity or better services that could be provided more quickly. 58. cost-effectiveness may not actually be the primary goal of contracting. No definitive study has shown that the practice actually saves the military any money. which revealed that $ 88 million dollars of food never was served to military personnel. As explained by retired Marine Colonel Thomas X. the U.S. n75 Halliburton contended that it was obligated to provide a minimum number of meals. “Military Privatization: Efficiency or Anarchy?” 6 Chi. it's about effectiveness. and effectiveness oftentimes are blurry. As Schooner has maintained.' Contracting's about the most efficient way rather than the [*70] most effective way. n78 Nevertheless. a 2003 report prepared by the GAO did not even cite cost-effectiveness as a reason for outsourcing to private military contractors. n77 Incidentally. MARK CALAGUAS [Loyola University Chicago School of Law. the lines between economy. 2006]." n74 Some evidence supports this conclusion.10PF6-Wikileaks www.-Kent J. Int'l & Comp. The American way of war is 'We don't care what it costs. n76 Even assuming that no fraud was involved. General Accounting Office's (GAO) 2004 audit of the KBR LOGCAP contract. in particular. Hammes. efficiency. 68-69 The conflicts that private military contracting generates in the foreign policy context are but one example of the misgivings voiced by critics of the current contracting system. Juris Doctor.
n82 The benefits offered by private military companies are quite competitive: the salary for U. most military contractors only [*71] work for three-month rotations followed by a one-month leave. 58. the British American Security Information Council reported in 2004 that just when the War on Terror increased government demand for their services. n81 The advisers also noted that the Navy SEALS were experiencing similar difficulties. For example.victorybriefs. after an ambush on April 9. the Special Forces have responded by offering $ 150. Int'l & Comp. n88 .10PF6-Wikileaks www.000 cash re-enlistment bonuses. n80 During the same year. members of Special Forces units were flocking to private firms. 2006].-Kent J. Juris Doctor.com Page 191 of 229 PMCS UNDERMINE CONVENTIONAL FORCES BY COMPETING FOR EXPERT AND TALENTED PERSONNEL. and Western European security workers averages $ 400-700 per day.000 per year. n85 Unlike fulltime soldiers who remain deployed for extended periods of time. those same contractors may halt operations or break their contracts if they decide that conditions have become too dangerous. n83 Senior company personnel earn approximately $ 20. n87 For example. 2004. n84 In light of increasing attrition rates. and individuals working in blue-collar positions can earn from $ 80. pp. senior enlisted advisers from the elite contingent testified to Congress that more and more troops were declining to stay past the twentyyear mark even though those individuals were still eligible to serve for an additional number of years. MARK CALAGUAS [Loyola University Chicago School of Law. KBR truckers refused to perform their jobs until security conditions improved. n86 Because their obligations are purely contractual.000 per month.000-100. L. troops that otherwise were satisfied with their work had been leaving the service after the ten-year mark in pursuit of more money. 70-71 Another serious concern regarding the use of private military contractors is that contractors siphon off talent to the detriment of an already-strained uniformed service.S. “Military Privatization: Efficiency or Anarchy?” 6 Chi.
70-71 Not only do private military companies compete with the government for talent. but to the local population. pp.” MARK CALAGUAS [Loyola University Chicago School of Law. impropriety and misconduct by contractors create negative consequences for uniformed personnel.S. ARE LESS ACCOUNTABLE THAN REGULAR MILITARY PERSONNEL. military] -. You may think the contractors are a separate entity.10PF6-Wikileaks www. none of whom were supervised by contracting officers. it occasionally ran motorists off the road in effort to intimidate any would-be assailants." n90 Even though the contractors may technically be private actors. n92 The allegations of detainee abuse at the military installation incited a firestorm of controversy after a government report issued in early 2004 revealed that [*72] military police and intelligence personnel had subjecting captured Iraqis to various forms of degrading treatment. the vulnerability of U. As Col. Juris Doctor.com Page 192 of 229 PMCS UNDERMINE CONVENTIONAL MILITARY OPERATIONS BECAUSE THEY PROBLEMATIZE COORDINATION.S. “Military Privatization: Efficiency or Anarchy?” 6 Chi. AND ARE SEEN BY LOCAL POPULATIONS AS “HIRED GUNS. Hammes observes." n89 When Blackwater was transporting Ambassador Bremer.S. Int'l & Comp. military forces. 2006]." n91 In a more serious example. but the activities of contractors on the ground sometimes undermines the efforts of U. military] contracted them to do. n93 Although no charges were filed against the contractors. Against a backdrop of limited coordination between private and military forces.-Kent J. n94 . military personnel to the imputation of the acts of the contractors that serve them is easy to fathom. security companies like Blackwater have an interest in protecting their clients at all costs.victorybriefs. end of sentence. they represent [the U. which results in its employees being as "aggressive and as muscular as possible as they need to be to fulfill what [the U. L.period. "whether you like it or not. were implicated in the Abu Ghraib prison scandal. they're your hired guns. an interrogator from the CACI Corporation and two linguists from Titan Corporation. 58. arguably "making enemies each time they went out.S.
At worst you've got cowboys running around almost unchecked. 2004 illustrates both the problem of conduct and the problem of contractor identity. L." n96 That individual had previously worked with a colleague who.10PF6-Wikileaks www. n95 As one contractor with Triple Canopy has indicated. anyway? Although some companies diligently evaluate their applicants. in addition to fleeing embezzlement charges in Massachusetts.S. MARK CALAGUAS [Loyola University Chicago School of Law. others have been known to hire candidates who may be unqualified or unfit. Int'l & Comp. once had been convicted of assault for almost shooting a friend's jaw off while playing Russian roulette. driving erratically. 58.com Page 193 of 229 PMCS DO NOT NECESSARILY HAVE THE SAME HIGH STANDARDS FOR ITS EMPLOYEES AS THE MILITARY DOES FOR ITS COMBAT FORCES. n99 The Marines accused the guards of firing on civilians and military forces. who contend that they had only fired warning shots. pp. shooting at will and just plain O. n100 The contractors. "[h]ow does it feel to be a rich contractor now?" n102 .-Kent J. 72-73 The concern for contractors' conduct raises a second inquiry: just who are these contract workers. 2006]. Marines in Fallujah and detained for three days. "[a]t best you've got professionals doing their best in a chaotic and aggressive environment. n101 The story's twist is that the contractors also claim that the Marines beat them up and asked. [*73] eventually were released without charge. n97 One incident that allegedly took place on May 5.T. and possessing illegal arms. (Out There Flappin').victorybriefs. n98 Fourteen security agents employed by Zapata Engineering reported being stopped by U.F. “Military Privatization: Efficiency or Anarchy?” 6 Chi. Juris Doctor.
n113 . 2005. counting back from August 2003 and leaving out an additional forty-four contractors whose deaths could not be traced to a specific month. THIS ALLOWS THE GOVERNMENT TO DISCLAIM SOME OF THE ACTUAL COST OF MILITARY OPERATIONS.S. . the Brookings Institution placed the contractor death toll at 280. Juris Doctor.S. actions. Int'l & Comp. “Military Privatization: Efficiency or Anarchy?” 6 Chi. In February 2003. nor the Colombian government has taken action. ninety-seven British troops have died since the invasion in March 2003. . n110 Because contractors are not part of regular military forces.-Kent J. forces and outstripping the losses suffered by the next-largest military contingent. Juris Doctor. as illustrated by allegations that contractors were involved in prisoner abuse at Abu Ghraib. the contractors themselves are [*74] subject to an enormous amount of risk when they carry out their missions.victorybriefs. neither the U.-Kent J.com Page 194 of 229 PMCS ARE NOT AS ACCOUNTABLE AS REGULAR MILITARY FORCES. 2006]. and the hostages remain in captivity to this day. Although the U.S. their death tolls often are ignored. MARK CALAGUAS [Loyola University Chicago School of Law." n104 PMCS FACE TREMENDOUS RISK OF CASUALTIES IN COMBAT OPERATIONS. MARK CALAGUAS [Loyola University Chicago School of Law. government contract employees when the contractors' military intelligence plane crashed into rebel territory. Colombian guerillas captured three U. The [P]resident can use this advantage to evade restrictions on U." n111 The risks also are palpable elsewhere. private military contracting also may lead to the delegation of sensitive activities to unaccountable parties. L. effectively limiting congressional checks on foreign policy. 73 In addition tension arising from the deployment of two different kinds of forces on the ground. Int'l & Comp. 58. Congress approves the military budget.10PF6-Wikileaks www. private contractors may be committing human rights violations without being held responsible for their actions. involvement in Iraq. 2006]. “Military Privatization: Efficiency or Anarchy?” 6 Chi. n109 By contrast. the British. n107 Private contractors make up the second-largest number of casualties in Iraq. n112 Because the legal status of the contractors is unclear. 58. second only to U. Specifically. but "[t]he use of contractors to avoid governmental accountability is more worrisome. n108 As of November 13. 73 Despite the lucrative nature of the contracting business.S. L.S. its access to information about contracts is often limited. pp. . thus "artificially deflat[ing] the human cost of . . n103 To some degree individual contractors are accountable to the organizations with whom they contract. . pp.
have been accused of lobbying senators into rejecting a proposed amendment to the 2005 defense authorization bill that would have banned private contractors from performing or translating detainee interrogations at U.S. and CACI Corp.. 2006]. pp. military installations. MARK CALAGUAS [Loyola University Chicago School of Law.-Kent J.000 on G. Int'l & Comp.S. n118 The leading donors were Halliburton and DynCorp. L. n120 . 75 The question remains whether the activities of private military contractors simply carry out U.victorybriefs. Titan Corp.S. lobbying efforts and shelled out more than $ 12 million in political campaign contributions. 58. the two firms whose employees were implicated in the Abu Ghraib scandal.P.O. In 2001. Juris Doctor. “Military Privatization: Efficiency or Anarchy?” 6 Chi. n119 More recently. as well. policy or in fact influence it.000 total on Republicans and the latter spending 72 percent of its $ 500.10PF6-Wikileaks www.com Page 195 of 229 PMCS HAVE INAPPROPRIATE LOBBYING INFLUENCE. ten prominent contracting firms expended over $ 32 million on U. with the former spending 95 percent of its $ 700.
n131 Lawful military transfers include the transfer of training or direct assistance under an agreement between two states or between a receiving state and a military provider duly licensed in the sending state.com Page 196 of 229 GLOBAL REGULATION OF PMCS WOULD BE IDEAL. n132 The OHCHR also would maintain a database of licensed contractors. Milliard has combined several of these solutions into a proposed international convention dubbed "The International Convention to Prevent the Unlawful Transfer of Military Services to Foreign Armed Forces. 58. . would receive a copy of all contracts and would immediately notify member states of any credible evidence concerning human rights violations committed by those states' licensed military providers. 2006]. MARK CALAGUAS [Loyola University Chicago School of Law. Such global unity appears far from achievable. "the biggest obstacle to doing anything internationally is a lack of political will. if ever. Int'l & Comp. n133 Under the proposed convention. an area where economically-advanced countries provide services to developing countries. pp.-Kent J. “Military Privatization: Efficiency or Anarchy?” 6 Chi. L.victorybriefs. would require many countries with diverging interests to come to a consensus. The regulation of military contracting. perhaps. BUT THIS IS UNLIKELY TO SUCCEED IN AN ACCEPTABLE TIMEFRAME. member states that did not establish domestic measures to prosecute the unlawful transfer of military services would be subject to the jurisdiction of the International Criminal Court. n134 Unfortunately. considering the current international political climate. 77-78 Army lawyer Major Todd S." n135 Indeed. it is unlikely [*78] that a workable convention can be negotiated within a reasonable time frame. Juris Doctor." n130 The draft calls for the Office of the United Nations High Commissioner for Human Rights (OHCHR) to oversee all lawful military transfers and to issue minimal guidelines that each member state must enforce under domestic laws and regulations. Consensus on even fairly routine matters of commercial law can take years to develop.10PF6-Wikileaks www.
and a ten-year statute of limitations. Int'l & Comp. which gives aliens the right to sue in U. 79 When contractor misconduct occurs. Juris Doctor. n140 The lack of uniform criminal background checks or psychological profiling within the hiring practices of different companies is troubling from a human rights perspective. courts to hold private military contractors liable for misconduct committed abroad. “Military Privatization: Efficiency or Anarchy?” 6 Chi. the Act now covers activities in foreign countries as in the United States.S.-Kent J.S. L. pp. MARK CALAGUAS [Loyola University Chicago School of Law.com Page 197 of 229 PMCS NEED BETTER REGULATION OF THEIR HIRING PROCESS. 58. n141 Although these developments may allow U. has been expanded in the last two decades to cover more than just visiting diplomats who suffer violations on U. n142 . Juris Doctor. While many contractors are former military personnel that come into the private sector with years of [*79] experience. failure to join indispensable parties. including: forum non conveniens. pp. 2006]. because private military contactors vary in the scope of background checks they conduct on potential employees. licensing requirements should include mandatory investigations of employees similar to those utilized in obtaining security clearances for certain government jobs. an effective adjudication process should be available to punish those who commit human rights abuses in the host country. THE ALIEN TORT CLAIMS ACT IS NOT AN EFFECTIVE MEANS OF REGULATING PMC CONDUCT. some firms concede that a substantial portion of their employees have no military training.victorybriefs. Int'l & Comp.S. MARK CALAGUAS [Loyola University Chicago School of Law.-Kent J. L. 58. Interpretation of the Alien Tort Claims Act. In order to prevent unqualified or unfit individuals from carrying out missions within war zones or other places experiencing war-like conditions. defendants nonetheless may prevail using a variety of tools at their disposal. “Military Privatization: Efficiency or Anarchy?” 6 Chi. 2006]. lack of standing.10PF6-Wikileaks www. 78-79 One area in need of regulation is contractor hiring. soil. federal court for human rights violations.
no legislative history exists to explain the language of the amendment. 79-80 A more promising remedy comes in the form of the Military Extraterritorial Jurisdiction Act (MEJA). such as the personnel working at Abu Ghraib under contract with the Central Intelligence Agency (CIA) and the Department of the Interior. were not covered under MEJA. “Military Privatization: Efficiency or Anarchy?” 6 Chi. Congress hastily amended the MEJA to extend jurisdiction over workers connected with other federal agencies and those contracting with "any provisional authority. 58. L. a 2000 law that gives U." n145 These legislative efforts represent a positive step towards ensuring contractor accountability. Contractors affiliated with other agencies. as originally passed.10PF6-Wikileaks www.-Kent J. MARK CALAGUAS [Loyola University Chicago School of Law. n143 However. Juris Doctor. n146 Unfortunately. federal courts jurisdiction over crimes committed by persons employed with or accompanying the armed forces abroad. 2006]. a problematic omission considering that coalition forces have handed over sovereignty to the Iraqis while the march of reconstruction will continue for years to come. but one significant loophole still remains. including contractors with the [*80] Department of Defense (DOD). The MEJA does not account for persons who contract with foreign governments. pp. the MEJA was narrow in its sole reference to the DOD. n147 . n144 In the wake of the Abu Ghraib scandal.victorybriefs. Int'l & Comp.S.com Page 198 of 229 THE MILITARY EXTRATERRITORIAL JURISDICTION ACT (MEJA) ALLOWS SOME REGULATION BUT LEAVES A MAJOR LOOPHOLE.
S. the use of private contractors in interrogation violates an Army policy that requires government employees to carry out functions that implicate [*81] national security concerns.S. repetitive tasks that are clearly defined with a legal structure. 58. abroad comport with internationally accepted standards of behavior.com Page 199 of 229 MILITARY USE OF PMCS IN FUNCTIONS THAT IMPLICATE NATIONAL SECURITY IS INAPPROPRIATE. “Military Privatization: Efficiency or Anarchy?” 6 Chi. A serious reassessment of the U. military personnel. MARK CALAGUAS [Loyola University Chicago School of Law. L. pp.-Kent J. n148 Because the commission of human rights violations not only contravenes basic moral standards but may also undermine counter-insurgency efforts. In particular. military's outsourcing policies is needed to identify the tasks that can and cannot be delegated to civilians.10PF6-Wikileaks www. security companies to work abroad. adjudication only occurs when abuse already has happened.S.victorybriefs. Int'l & Comp. Authorities therefore should take a preventative approach to ensure that contractors who unofficially represent the U. 80-81 Although legal accountability is necessary to address misconduct and impropriety by private military contractors. Juris Doctor." n149 . sensitive tasks should be performed only by U. 2006]. In addition to strengthening the criteria allowing for U. the use of contractors should be limited to situations where the government truly is dependent on civilian expertise or to "mundane.S.
but estimates indicate that there were more than 180.000 that were employed during the Bosnia campaign. Charlottesville.” 2008 Army Law.com Page 200 of 229 THE USE OF PMCS IN IRAQ IS THE LARGEST AND MOST EXPANSIVE IN AMERICAN HISTORY." n60 Contractors are being used to "protect individuals." n61 These companies are performing critical functions that closely resemble military missions on the battlefield. Presently assigned as Brigade Judge Advocate. U.10PF6-Wikileaks www. but it was just one of at least nine firms providing security and protection for the CPA workforce. the government signed a $ 20 billion contract for a logistics firm. n56 For instance.D. it is clear that large numbers of PSCs have been involved since the beginning of the Iraq mission. The CPA. Brown and Root.M. to control much of the logistics operations in Iraq. n55 The amount the government spent for these contractors is also staggering when compared to prior conflicts. Colo. they are now considered "vital" to the operations in Iraq. n64 Regardless of the reason. n66 Blackwater may have been the most high profile private security contractor. relied heavily on these PSCs to perform its duties.. & Sch.. n54 The number of contractors has consistently been even greater than the total number of American [*68] uniformed military forces in Iraq. which began operating within weeks after the invasion. Army. n67 . and transport convoys. LL.victorybriefs. The Judge Advocate General's Legal Ctr. n58 More significant than the sheer size and cost of the increased use of contractors is the breadth of assignments being given to these workers. 4th Brigade Combat Team.S. n65 The CPA spent $ 27 million to have Blackwater provide protection for CPA chief Paul Bremer and other key CPA officials. Major Jeffrey S. 67-69 This trend towards outsourcing assignments to private contractors escalated dramatically with the invasion of Iraq in 2003. 4th Infantry Division.000 contractors employed by the United States Government in early 2007. pp. n53 This marks a momentous increase from the estimated 2. Army. The College of William and Mary]. n59 The biggest area of change is the reliance on contractors to perform security functions in an "unstable environment. U. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts. The United States is tasking its contractors in Iraq in a manner not done in prior conflicts. n57 That contract amount is roughly three times the total amount America spent to win the first Gulf War. J." n52 The exact number of contractors in Iraq is unknown. n62 Even though these security roles are not of the type that contractors have traditionally performed. buildings and other infrastructure. Kellogg. Thurnher [Judge Advocate. Fort Carson. 2007.. Va. The United States' use of contractors in Iraq is "unprecedented in both its size and scope. 64. 2004.S. n63 It is unclear why the United States ended up relying on such a large number of PSCs in so many pivotal roles..
there is a significant risk that American government employed PSCs in Iraq may lose their civilian protections and become lawful intentional targets in Iraq.. from the start of its mission in Iraq.. Presently assigned as Brigade Judge Advocate. As one can see below. U. Army. the DOS continued this trend of relying on PSCs. THE ROLE OF PMCS HAS EXPANDED TO THE EXTENT THAT PMCS MAY NOW BE CLASSIFIED AS “COMBATANTS” RATHER THAN “CIVILIANS” UNDER THE LAWS OF WAR. Charlottesville. The Judge Advocate General's Legal Ctr. The College of William and Mary]. the various agencies of government contracting for security had their own unique approaches for holding their contractors accountable. and thus do not warrant the removal of law of war protections as civilians. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts.S. n70 The United States integrated the use of PSCs into almost every facet of its operation in Iraq. J. n72 The problem is that such widespread reliance on a contractor force demands significant accountability over that force. pp. however.victorybriefs. Thurnher [Judge Advocate. The United States Agency for International Development (USAID) began contracting with various security firms. 64.M. n71 but many commentators have concluded that the Iraq mission "would not be possible without" them. 2004. because it failed to produce a unified approach to dealing with these forces on the battlefield. n97 However. as the mission in Iraq has adapted and the roles for PSCs have expanded. U. Not only were these PSCs incorporated into part of its total force. n95 They might be subject to losing those protections because their missions are so vital or because they cause actual harm while performing those missions. Colo.. & Sch. each with a varying degree of success. . Inc. LL.10PF6-Wikileaks www. n69 The DOD also relied extensively on PSCs in Iraq beginning at an early stage of the mission. Instead. Va. Major Jeffrey S.com Page 201 of 229 After the CPA disbanded in June 2004.S. Fort Carson. such [*69] as Kroll. 2007. when it took over the Blackwater contract and immediately extended it for another year. in part.D. 4th Brigade Combat Team. and DynCorp International (DynCorp). n68 The DOS. n96 The United States has consistently maintained that the actions of its PSCs have not amounted to taking a direct part in hostilities.” 2008 Army Law. 4th Infantry Division. the United States failed to have strict accountability over its PSCs.. as will be shown below. was not alone in its use of PSCs in Iraq. this has become a progressively more difficult assertion. 71 Regardless of which of the "direct part in hostilities" approaches is used. Army.
S. n151 Additionally. Charlottesville. however. commanders were also able to include strengthened RUF provisions into contracts. n149 In Iraq.S. Major Jeffrey S. commanders have left the majority of the discipline decisions in Iraq to the purview of the contractors themselves... this control did not extend to the numerous PSCs that were employed under several layers of subcontracts or were not directly controlled by DOD entities. n153 However. welfare. pp. commanders used that authority to establish policies for their Forward Operating Bases (FOBs). Thurnher [Judge Advocate. Violations of those policies occasionally resulted in discipline. 76 Commanders have the inherent authority to protect the health and safety. LL. Army. commanders inherently have some ability to shape contracts. U. Army. 64. In Iraq.10PF6-Wikileaks www. Va. commanders used those powers to mandated that all DOD PSC contracts include a requirement for the contractor to register with the Iraqis. was not subject to the commander's authority. such as the barring of a PSC employee from facilities or from a FOB. Fort Carson.M. J. U.. The College of William and Mary]. & Sch. and discipline of their troops and installation. The Judge Advocate General's Legal Ctr. Presently assigned as Brigade Judge Advocate. Thus limited.” 2008 Army Law.. 2004.com Page 202 of 229 THE AUTHORITY OF BATTLEFIELD COMMANDERS IS INSUFFICIENT TO REGULATE PMCS. n152 As the campaign progressed.D. n154 . 4th Brigade Combat Team. Colo.victorybriefs. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts. 4th Infantry Division. 2007. n150 Misconduct that occurred off the FOB.
. Charlottesville. n156 One of these acts. its use has remained extremely rare. The Judge Advocate General's Legal Ctr.M. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts. Thurnher [Judge Advocate.. Army." n158 Its coverage was extended by a 2005 congressional amendment. the Military Extraterritorial Jurisdiction Act (MEJA).S. 76-77 Despite the absence of applicable local host country laws in Iraq. n157 The MEJA originally only covered persons who were "employed by or accompanying the armed forces outside the United States." n159 Although enforcement under the MEJA has been an option to the DOD throughout the conflict. n155 The main available method is to prosecute under U. 2007. Major Jeffrey S. Presently assigned as Brigade Judge Advocate. n160 . provides for prosecutions of felony offenses committed overseas in certain situations. Army. LL. Fort Carson..” 2008 Army Law. Va. which enabled prosecutions of contractors employed by any federal agency to the extent that "such employment [*77] relates to supporting the mission of the Department of Defense overseas.S. extraterritorial jurisdiction acts. The College of William and Mary]. J. U.D.10PF6-Wikileaks www. U. 4th Brigade Combat Team.S.victorybriefs. Colo. pp. there are several means in which PSC employees are subject to criminal prosecution. 2004. & Sch.com Page 203 of 229 THE MEJA GIVES THE ABILITY TO CRIMINALLY PROSECUTE PMC PERSONNEL BUT IS RARELY USED.. 4th Infantry Division. 64.
the UCMJ authority in that provision only allowed prosecutions of contractors in times of "declared war." n163 Several issues exist with the potential use of this authority. though. Charlottesville. 64. not all of the services have fully exercised these powers yet.10PF6-Wikileaks www.” 2008 Army Law. pp. Army. Army. Colo. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts. 2007. the DOD clearly had difficulties adapting to the conditions in Iraq and issuing appropriate guidance. The Judge Advocate General's Legal Ctr. 2004." n165 Lastly. 77 Another option for the DOD is to prosecute contractor misconduct through Article 2(a) of the Uniform Code of Military Justice (UCMJ). the DOD procedures seem to have been more successful than other governmental agencies' procedures. n166 Many commentators." n161 Recognizing that the authority might not apply in Iraq as it was not a declared war. Major Jeffrey S. Congress expanded the authority with the National Defense Authorization Act for Fiscal Year 2007. Initially. The DOD only published implementing guidance on 10 March 2008. Presently assigned as Brigade Judge Advocate.M. not all the other agencies had as robust guidance for overseeing PSCs as the DOD did.D. U. n164 Second. .. Thurnher [Judge Advocate. LL. First. Despite these challenges. it is unclear whether this authority could be used to cover Blackwater or other DOS contractors that arguably might not be truly "accompanying an armed force in the field..S. As seen below.com Page 204 of 229 THE UNIFORM CODE OF MILITARY JUSTICE IS NOT AN EFFECTIVE MEANS OF REGULATING PMCS. 4th Infantry Division...victorybriefs. have criticized the DOD for failing to effectively use its options for prosecuting misconduct.S. there are significant concerns about whether an act allowing military prosecutions of civilians will prove to be constitutional. Va. Fort Carson. 4th Brigade Combat Team. The College of William and Mary]. J. n167 Additionally. n162 That act extended coverage to include not only periods of declared war but also "contingency operation[s]. nor did others have as many options for disciplining misconduct. U. & Sch.
Army. Va. Presently assigned as Brigade Judge Advocate.victorybriefs.S. but the majority of the work is done by contractors or contracted agencies. n198 [*80] When allegations of wrongdoing have been raised about these PSCs.. Colo. it expects the contractors to hire their own security from PSCs.M. n196 The USAID does not provide the security for these workers. J. n195 Many of the workers implementing the plans. The College of William and Mary].10PF6-Wikileaks www.” 2008 Army Law. n201 Additionally. are employed by companies that are contracted by the USAID. the USAID develops a plan and contracts with a firm to implement the plan. n203 . 2004. and those who need protection as they travel across Iraq. In essence. much less provide oversight.com Page 205 of 229 USAID DOES NOT EFFECTIVELY REGULATE THE PMCS WHICH PROVIDE SECURITY FOR ITS CONTRACTORS. Major Jeffrey S. n197 Instead. 2007. 64.. pp. n199 The USAID does not investigate alleged incidents involving PSCs hired by its contractors. U. LL. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts. the USAID expects but does not enforce its contractors' PSCs obtain an Iraqi license or report any escalation of force incidents to the central Reconstruction Operations Center.D. & Sch. Army.S.. 4th Infantry Division. U. In fact. the USAID does not even account at all for these PSCs that are travelling through Iraq daily. Thurnher [Judge Advocate. n200 Such investigations are instead left to the contractor. The USAID's decision to not actively oversee these PSCs has created large "gaps in oversight" n202 and has caused significant accountability problems. the USAID has taken a hands-off approach. Fort Carson. The Judge Advocate General's Legal Ctr. 4th Brigade Combat Team. Charlottesville.. 79-80 The USAID provides economic and humanitarian assistance to Iraq.
85-86 The first piece of such reform-oriented legislation in response to the Blackwater incident came in the form of a House resolution introduced by Representative David Price of North Carolina. n276 The legislation was intended to close the potential loophole in which Blackwater and other PSCs working under non-DOD contracts might not fall within the jurisdiction of MEJA. J. several provisions of the National Defense Authorization Act for Fiscal Year 2008 (NDAA FY 2008) dealt with the controlling of and reporting on PSCs. 2007. n281 Although the MEJA Expansion and Enforcement Act did not pass in 2007. The Judge Advocate General's Legal Ctr. Charlottesville. n280 Facing opposition from the executive branch. n279 was subsequently introduced in the Senate by Senator Barack Obama of Illinois. 2004.. Colo. n275 The legislation. Army. LL. Va. Fort Carson. Thurnher [Judge Advocate. pp." was passed overwhelmingly by the House of Representatives the day following the Oversight [*86] Committee's hearing. Major Jeffrey S.D.victorybriefs.” 2008 Army Law. where the Armed Forces is conducting a contingency operation. n277 The act would extend MEJA coverage to include any contractor working "in close proximity to an area (as designated by the Department of Defense). Presently assigned as Brigade Judge Advocate. U. which would also require the formation of a new FBI unit to conduct investigations of PSC misconduct overseas. the Senate has yet to enact the legislation.S..S. n282 . 4th Brigade Combat Team..." n278 The bill. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts. & Sch.10PF6-Wikileaks www. entitled the "MEJA Expansion and Enforcement Act of 2007. 64. Army.com Page 206 of 229 CONGRESS HAS FAILED TO EXPAND THE MEJA TO ENSURE CRIMINAL JURISDICTION OVER PMC EMPLOYEES. 4th Infantry Division. U.M. The College of William and Mary].
pp. presumably the military. Army. The current system fails to require all PSCs follow military commanders' orders and fails to provide those commanders with a means to discipline contractors who violate the rules. Colo. U. requires all DOD PSCs comply with the combatant commander's orders. The change to the DFARS. Secretary of Defense Gates explained that it was vital that the military had the "means and the mechanisms" to understand all actions transpiring in its areas. Major Jeffrey S. Charlottesville. 2004. A member of the Reconstruction Operations Center explained the difficulties in trying to influence PSCs that did not fall under the DOD saying. would constantly have to struggle to get the DOS or other agency to take sufficient disciplinary action. U. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts. n288 This leaves future counterinsurgency operations vulnerable to being undermined by PSCs. there is currently no similar provision with regard to DOS or other agency employed PSCs. "I'm not gonna go chasing after non-DOD organizations.'" n293 The DOD.victorybriefs. Equally important is the ability to discipline PSCs.” 2008 Army Law. 4th Brigade Combat Team. Va. n291 Otherwise.S. The Judge Advocate General's Legal Ctr. Thurnher [Judge Advocate. you didn't submit an incident report for this. the DOD will not likely be able to ensure these firms actually follow the rules. The most efficient system would be to instead place these armed PSCs under the control of one authority. 87 While the MOA between the DOS and the DOD does an outstanding job of ensuring coordination between the military and the DOS PSCs. The DOD needs to have their orders respected by the PSCs in order to spearhead a unified counterinsurgency effort.S. The current interagency arrangement fails to provide the military the ability to discipline non-DOD PSCs who violate orders or regulations. The College of William and Mary]. n292 Without such authority and control over PSCs. Presently assigned as Brigade Judge Advocate.. n294 . it falls short of placing all PSCs under one chain of command.. Fort Carson. LL. without this power.M.D. the DOD will have a difficult time influencing the actions of these PSCs and preventing them from engaging in acts that are harmful to the counterinsurgency mission. as discussed previously..com Page 207 of 229 EFFORTS AT INTERAGENCY COORDINATION TO REGULATE PMCS NEED TO BE STRENGTHENED TO PUT THEM UNDER ONE CHAIN OF COMMAND. & Sch. 'Uh. 2007. going. n289 Commanders need to be able to tightly control their areas of responsibility..10PF6-Wikileaks www. 64. n290 Unfortunately. J. Army. Such a provision needs to be mandated for all PSCs in all combat zones. 4th Infantry Division.
4th Infantry Division. Army." n297 The United States should therefore push for an independent and international accreditation or licensing program that would set uniform standards in terms of training and screening of PSCs.S. n299 However. it has failed to "adequately monitor" these firms once the "license is issued. 64. 87-88 The United States needs to recalibrate how it vets and trains its PSCs. n304 Thus.com Page 208 of 229 EARLIER ATTEMPTS TO REGULATE PMC HIRING AND TRAINING DO NOT GO FAR ENOUGH. 4th Brigade Combat Team. The United States should require its PSCs to be independently accredited or licensed. .D." n301 While the United States has attempted some licensing for firms that are headquartered in the United States itself. .” 2008 Army Law. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts. trained PSCs to perform the security missions. Presently assigned as Brigade Judge Advocate. many of the firms operating in Iraq are from outside the United States. .. n296 Many PSCs want more regulation. Army. & Sch. some of the associations have already begun limited regulatory and accrediting mechanisms. and the firms "recruit globally. LL. rogue outfits that give the [*88] industry as a whole a bad name. U. Fort Carson." n303 Only an international accreditation system is likely to succeed in providing quality. it relies too heavily on the individual contractors to regulate themselves. Va. The College of William and Mary]. Thurnher [Judge Advocate. thus far the United States has not required any of its PSCs in Iraq to receive these accreditations as part of a contract.. 2004. the United States should make a concerted effort to encourage the use of these independent. pp.victorybriefs. n300 Licensing or accrediting would help "ensure transparency of the company and the contract. J. n298 A likely source of this independent accreditation would be one of the several existing PSC trade associations. Colo. The Judge Advocate General's Legal Ctr. 2007.M. international systems by utilizing them routinely as part of their contracts. as a way to "distinguish themselves from ..S." n302 Plus. Charlottesville. n295 Although the MOA between the DOD and the DOS requires specific training requirements for its PSCs. U.10PF6-Wikileaks www.. Major Jeffrey S. In fact.
U. Army. 88 The United States also needs to improve how it investigates and disciplines PSC misconduct. 2007. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts. 64.M. The Judge Advocate General's Legal Ctr. 4th Infantry Division. Fort Carson.. LL. U.” 2008 Army Law. Colo. it is easy to see why this complaint exists. . The College of William and Mary]. pp.S.victorybriefs. Army.S.D. Charlottesville. Presently assigned as Brigade Judge Advocate.. The United States needs to take firm action to ensure that offending PSC employees can be held accountable for misconduct. 2004. Va. Major Jeffrey S. J. 4th Brigade Combat Team.. n307 Given the extremely rare occurrences of any contractor being disciplined.. Many Iraqis and much of the international community and American public share a very troubling perception that Blackwater and other PSCs are above the law.10PF6-Wikileaks www. & Sch. Thurnher [Judge Advocate.com Page 209 of 229 RARE PROSECUTIONS OF PMC MISCONDUCT LEAD MANY TO THINK THEY ARE ABOVE THE LAW.
J. that investigation will likely be severely hampered by those miscues stemming from the late arrival of the investigating team.. The United States needs an organized and dedicated team of investigators. the DOD. The investigators involved in the review of the Blackwater incident did not arrive until two weeks after the incident.S. Major Jeffrey S. U. 4th Brigade Combat Team. 2007. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts. Attorneys or section of DOJ handle all of these complex cases. Presently assigned as Brigade Judge Advocate. n312 By that point. n314 The United States should similarly have a dedicated team of prosecutors available to try these complex cases.victorybriefs.S. n311 If trained investigators do not begin working a situation and arrive on the scene quickly. 2004.M. The Judge Advocate General's Legal Ctr.” 2008 Army Law. pp. 89 [*89] To this end. Army. U. The other players. such as the FBI investigations teams. the investigation is substantially less likely to succeed. Charlottesville. passage of the MEJA Expansion and Enforcement Act of 2007 n309 or something equivalent is necessary. n313 Unfortunately.D. Va.. that includes agents such as the Federal Bureau of Investigation (FBI). Having a dedicated team of professional investigators available for these types of investigations will help prevent having such problems in the future and will strengthen potential prosecutions. n310 designated and available within a short notice time period for serious incidents in combat areas..com Page 210 of 229 THE UNITED STATES NEEDS TO IMPROVE ITS RESOURCES AVAILABLE FOR CRIMINAL PROSECUTION OF PMC PERSONNEL. America also needs to be able to better prosecute those who commit offenses while operating as part of these governmental PSCs overseas. n308 However. Fort Carson. n316 These attorneys can gain valuable experience as they work through a repetition of these cases. Although the recent expansions of UCMJ authority will help protect America's interests in combat zones. 4th Infantry Division. and the DOS officials. n317 The MEJA needs to be expanded to cover all PSCs operating . Thurnher [Judge Advocate. Army. The MOA between the DOD and the DOS does significantly improve coordination and cooperation in investigations. n315 One alternative is to have a specialized group of Assistant U. LL. some of the Blackwater employees involved in the incident had been given apparent immunity and repairs had already been made to the vehicles involved in the incident. will also benefit by only having one system with which they have to work to help prepare for prosecutions.S. Given the complexity and cost of trying these cases.S. the MEJA still represents one of the best methods for prosecuting misconduct.. the United States needs to swiftly improve its ability to investigate potential misconduct. U. & Sch. The College of William and Mary]. 64. Attorneys are hesitant to prosecute PSCs. Colo.10PF6-Wikileaks www.
victorybriefs.10PF6-Wikileaks www. n318 . The United States needs to pass the relevant provisions of the MEJA Expansion and Enforcement Act of 2007 or something equivalent to ensure that future misconduct is covered under U.com Page 211 of 229 in Iraq and in combat areas.S. law.
LL. 4th Brigade Combat Team. "The American public doesn't get quite as concerned when contractors are killed. The College of William and Mary]. 90 There is a concern among many commentators that the United States' use of PSCs is an abdication of "an essential responsibility.D. & Sch. 2007. U. 90 Although not an improvement to the current system. n319 Ultimately. The practice of contracting out security functions has dangerous overtones. 64.. 4th Infantry Division. The Judge Advocate General's Legal Ctr. One Pentagon official reportedly explained the phenomenon in these terms. Army. n320 the United States' abilities to win counterinsurgencies would improve if it scaled back on its use of PSCs. J.” 2008 Army Law. Colo..S." n323 This seemingly callous approach to using force is not in the long-term best interests of the United States. The Judge Advocate General's Legal Ctr.S.com Page 212 of 229 PMCS UNDERMINE THE ABILITY TO WAGE COUNTERINSURGENCY BECAUSE FIRMS DO NOT ALWAYS SHARE THE SAME OBJECTIVES AS THE GOVERNMENT. Major Jeffrey S. Charlottesville. 2007.” 2008 Army Law. Fort Carson. PMCS MASK THE TRUE COST OF WAR. & Sch. The College of William and Mary].10PF6-Wikileaks www. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts. Army. Colo. pp. 64. Charlottesville. Presently assigned as Brigade Judge Advocate. 2004..S. pp.M. one idea that should be given greater consideration is a rethinking of the entire notion of using PSCs on the battlefield.victorybriefs. U. 4th Infantry Division.. J. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts. Thurnher [Judge Advocate. Va." n321 The fear is that when a government "delegate[s] out part of its role in national security" it will be not be as responsible or accountable to the people.. Fort Carson.D. especially when the government and PSCs have different goals..S. 2004. 4th Brigade Combat Team. Army.. Presently assigned as Brigade Judge Advocate. Major Jeffrey S. Va. Thurnher [Judge Advocate.. U. Army. U. . LL.M. n322 The country might be willing to more readily use force when PSCs are a percentage of those that will be fighting or dying. these differences could lead to a dire situation than the one involving Blackwater. Even though it seems an unlikely move given the current desire and willingness of the administration to privatize such functions.
. Charlottesville. 2004. & Sch. Colo. The Judge Advocate General's Legal Ctr. practices in Iraq have cast doubt on long standing principles of the law of war.” 2008 Army Law. The College of William and Mary]. 4th Infantry Division.D.. U. . 64. U.10PF6-Wikileaks www. J. Army.victorybriefs. . The Judge Advocate General's Legal Ctr. the widespread use of PSCs in vital missions in Iraq has blurred the distinction between civilians and combatants on the battlefield. 90 Finally. n324 and America may have already reached that limit.” 2008 Army Law. The DOS essentially admitted it could not operate without Blackwater's assistance after the September 2007 incident..S. LL. Presently assigned as Brigade Judge Advocate. Fort Carson. The U.. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts. U. pp.-employed PSCs now risk losing their protections as civilians based on the missions expected of them. 4th Brigade Combat Team. The College of William and Mary]. 4th Infantry Division. 64." n326 The United States must ensure that it does not again find its options so limited. 4th Brigade Combat Team. Va. . 2007. 2007. Army..M. Major Jeffrey S. U. Charlottesville. Army. J. U. .. OVER-RELIANCE ON PMCS PREVENTS THE MILITARY FROM PERFORMING VITAL FUNCTIONS IN THE EVENT THAT PRIVATE FIRMS FAIL. “Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts. & Sch. pp.M. Thurnher [Judge Advocate. 2004..S.D.S. Army. Major Jeffrey S. Presently assigned as Brigade Judge Advocate.com Page 213 of 229 PMCS BLUR THE LINE BETWEEN AND CIVILIAN AND MILITARY OPERATIVES.S. Fort Carson. Colo.S. LL. Thurnher [Judge Advocate. Va. 90 Moreover..S. n325 The fear is that the government cannot "quickly replace an outsourced service if the [PSC] fails . there is a limit as to how reliant a country should become on PSCs.
he argues that functional dominance of contractor control. Scott M. 853 (2010). n27 Martha Minow intimates that private contractors disserve the military and create separation of powers concerns because "Congress would be largely constrained in reviewing the actions and practices of private military contractors. transparency. it might be able to evade much of Congress's oversight jurisdiction-at least temporarily. several legal scholars have argued that national security privatization poses risks to separation of powers. these harms are attached to privatization because "[i]f the Executive were . “Private Force / Public Goods. ." n28 In addition to a host of normative claims suggesting that private contractors degrade military culture and pose strategic risks due to their weakened resolve to risk death and overaggressive predisposition to use deadly force.victorybriefs. or fundamentals of democracy. to deploy private troops in lieu of U." n30 .com Page 214 of 229 CONSTITUTIONAL CRITICS WORRY THAT PMCS UNDERMINE GOVERNMENT TRANSPARENCY AND ACCOUNTABILITY. oversight. LSU Law Center]. Specifically. Jon Michaels sees a constitutional and democratic risk in national security privatization.10PF6-Wikileaks www. pp. Sullivan [Assistant Professor of Law.” 42 Conn. . soldiers.S. n29 Under his analysis. Rev. 861 Raising constitutional concerns. and recruitment by the Executive Branch poses separation of powers problems in bypassing congressional checks over military action. L.
" n35 Breaking this monopoly results in lessened political and functional control over military action. “Private Force / Public Goods. Sullivan [Assistant Professor of Law.” 42 Conn. LSU Law Center]. Rev. compromising the State's ability to accomplish foreign policy goals through military force. thus compromising the role of the State as the exclusive arbiter over the purveyors and means of violence. pp. n34 The role of the State as the "superior authority" and only legitimate purveyor of violence helps "keep the lid on violence. 861-862 The international relations-oriented argument against national security privatization focuses on institutionalist concerns of state sovereignty and the state monopoly of legitimate violence. over which any cession invites harms to military and foreign policy effectiveness. n31 Under the argument advanced by political scientists like Deborah Avant and Anna Leander. and simultaneously. n36 . 853 (2010). L. n33 The precept of the state monopoly of violence is key to creating institutional hierarchy or organization as to how violence can be projected. the private military industry as an institution undermines "states' collective ability to [*862] monopolize violence in the international system.com Page 215 of 229 INTERNATIONAL RELATIONS SCHOLARS CRITICIZE PMCS BECAUSE THEY UNDERMINE THE STATE MONOPOLY ON VIOLENCE IN THE INTERNATIONAL ARENA.10PF6-Wikileaks www. the state projection of force is a quintessential state function." n32 In this view.victorybriefs. Scott M.
all CPA "laws. instructions and directives remained in force until rescinded or amended by the Iraqi [*191] legislature. As part of the transition from Coalition control to the Iraqi Interim Government (and the subsequent transitional and permanent governments). and U. Iraq required a massive reconstruction program following the ouster of Saddam Hussein's government. which affirmed the role of the U.victorybriefs. 2004).D. memoranda." PMCs were not subject to Iraqi laws or jurisdiction so long as the CPA governed Iraq." n61 While this language might barely affect a "military support" contract to supply soldiers with food services." n60 Further.com Page 216 of 229 THERE WAS VERY LITTLE LEGAL OVERSIGHT OF PMCS IN IRAQ. Candidate 2010. Adam Ebrahim [J. Coalition Forces and the military and civilian personnel accompanying them.A.S.. orders. Most significantly. could ensure that the existing favorable legal climate for PMC activity continued indefinitely. while this was a real possibility for a de facto soldier operating under a security contract. administrative or other legal process. B. CPA Order No. the CPA. 2003 to June 28. granted contractors immunity from "Iraqi laws or regulations in matters relating to the terms and conditions of their contracts. 17. a June 2003 CPA Public Notice established the legal framework in which PMCs and other foreign companies would operate. therefore. Order No. And The Private Military Industry. as "civilian personnel. 181. contractors received immunity "from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a contract or any sub-contract thereto. it would prove significant for "military provider" security contracts. 190-191 To further complicate matters. they will remain subject to the exclusive jurisdiction of the State contributing them to the Coalition. and "the specific authorities. civil. n56 During the 14-month period that the CPA formally governed Iraq (April 21. the Coalition needed and welcomed PMCs into its rebuilding efforts. signed the day before the formal transition. That is.J. Boston University School of Law. responsibilities. 2007].. International Law. are not subject to local law or the jurisdiction of local courts.U. a food service contractor was unlikely to commit any serious violations of Iraqi law." n59 The CPA. Int'l L. pp. Johns Hopkins University. and obligations under applicable international law of these states as occupying powers under unified command. the CPA had the power to issue laws and regulations until Iraq reestablished a stable government. n58 Thus. With regard to criminal.10PF6-Wikileaks www. International Studies. The Coalition Provisional Authority ("CPA" or the "Coalition") gained formal legal control of Iraq through United Nations Security Council Resolution 1483." n55 Under Administrator Paul Bremer. “Note: Going To War With The Army You Can Afford: The United States.” 28 B. History. n57 The notice stated: In accordance with international law. 17 additionally .K. regulations.
instructions and regulations propagated by the CPA to govern their activity. n64 .10PF6-Wikileaks www. 17 required that PMCs to register with the Iraqi Ministry of Interior and the Ministry of Trade and that individual civilians demonstrate a need before being granted a weapons authorization permit.com Page 217 of 229 required that PMCs "respect" all orders. n63 In practice. Order No. n62 By sustaining all prior orders and memoranda. memoranda.victorybriefs. these programs provided little functional oversight.
Int'l L. History. government.S. n67 Initially comprised of eight areas of special jurisdiction until 2001. International Studies. n69 Specifically. n68 The 2001 USA PATRIOT Act added a ninth provision to the SMTJ Statute. International Law. certain islands valued for their "guano" (bird excrement used for fertilizer).victorybriefs. borders but not yet subject to foreign jurisdiction.S.S. in theory.U." n70 While the 2001 modification could. “Note: Going To War With The Army You Can Afford: The United States. national in any place or residence within a foreign state used by missions or entities of the U. and he currently is serving a 100-month prison term. n74 A jury in 2006 convicted Passaro of aggravated assault. Boston University School of Law. has invoked SMTJ only sparingly in the past. Adam Ebrahim [J. n77 Whether the Section 9(A) modification and the Passaro conviction affect this longstanding practice remains to be seen. n76 The U..S. aircrafts. B. guided by a general presumption against the extraterritorial application of domestic legislation.J. Passaro [*193] under the SMTJ Statute. 192-193 First. Candidate 2010.A... . the Special Maritime and Territorial Jurisdiction ("SMTJ") Statute has since 1790 (albeit under a slightly different title) sought to protect American citizens and property beyond U. n72 While working in 2003 for the CIA as an interrogator at a remote military base in Afghanistan.” 28 B. 2007]. military premises within a foreign state.S. vessels on international waterways. 181. used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities.. And The Private Military Industry. spacecrafts. as a U. pp.S. the SMTJ Statute has thus far yielded only one such prosecution. outside the jurisdiction of any particular state or district.S.D. a federal grand jury in the Eastern District of North Carolina indicted former CIA contractor David A. n73 The detainee died within 48 hours of the incident. the SMTJ Statue applies to "the premises of United States diplomatic. extend jurisdiction to a range of overseas PMC operations.. which extended jurisdiction to offenses committed by or against a U. and certain vessels bound for the United States. military or other United States Government missions or entities in foreign States" and "residences in foreign states . had jurisdiction over the incident under Section 9(A) of the SMTJ statute.com Page 218 of 229 THE SPECIAL MARITIME AND TERRITORIAL JURISDICTION STATUTE PROVIDES A VERY WEAK CHECK AGAINST PMC ABUSE. SMTJ works as an evolving catchall and applies to: vessels on the high seas.S. national committed an offense on U. lands outside the jurisdiction of any nation. Passaro reportedly struck a detainee with a flashlight and kicked him in the groin. n71 In 2004.10PF6-Wikileaks www. consular. Johns Hopkins University. lands acquired by the U. n75 The U.
Adam Ebrahim [J. specifically endorsed the "in time of war" language in section 802(10) as "the maximum historically recognized extent of military jurisdiction over civilians ." n104 A future Court may be charged with determining whether "declared war or a contingency operation" fits within or exceeds this historical maximum. as it provides military officers with a direct recourse for any crimes they witness and avoids some of the logistical problems associated with international prosecution under civilian law.. International Studies. depending on the particular nature of their activities. Candidate 2010. the 1957 decision which restricted the civilian court-martial for capital offenses during times of peace.com Page 219 of 229 EXTENSIONS OF THE UNIFORM CODE OF MILITARY JUSTICE ARE A CONSTITUTIONALLY SUSPECT WAY OF REGULATING PMCS. that decision should emanate from Congress and not a court. .J. ." n101 The new law reflects a more realistic understanding of the private military industry and the nature and scope of their activities in Iraq and other modern battlefields. Considering the ramifications of such a classification. n100 Amidst the hundreds of pages comprising the Act (which essentially sets the Pentagon's budget). the Graham Amendment to the National Defense Authorization Act for Fiscal Year 2007 made a minor change to the statutory language of 10 U. This would in turn apply the entire UCMJ to the contractor. § 802 with potentially major implications for the private military industry.S. History. B. Int'l L. Boston University School of Law. n103 [*197] Reid v. a case involving a private military employee might warrant a functional classification of the individual as member of the armed forces and not as a civilian. Johns Hopkins University. International Law. “Note: Going To War With The Army You Can Afford: The United States. the modification appears ripe for a constitutional challenge on due process.D. vagueness.U. 181. 2007]. 196-197 In October 2006. Covert.. and over-inclusiveness grounds.A. And The Private Military Industry.10PF6-Wikileaks www. Conversely.victorybriefs. Congress eliminated the "in time of war" restriction on jurisdiction over civilians and replaced it with a broader grant of military jurisdiction "in time of declared war or a contingency operation [over] persons serving with or accompanying an armed force in the field. pp.C. n102 At the same time..” 28 B.
a Washington. “Note: Going To War With The Army You Can Afford: The United States. n119 In 2004.C. pp. Adam Ebrahim [J. as a violation of the law of nations. and regulate unlawful conduct. n123 The court determined that while treaties and other sources of international law might permit an ATCA claim when a state actor engages in torture. And The Private Military Industry. History. International Law. the Supreme Court considerably narrowed the reach of the ATCA in Sosa v." n121 As applied to PMCs operating abroad. punish. For example." it required ATCA claims "based on the presentday law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms . Int'l L.U. Boston University School of Law. the Abu Ghraib incident fostered numerous suits under the ATCA and state law against the private contractors at work in the prison. B. D. 181..10PF6-Wikileaks www." enacted in 1789 to grant jurisdiction over a "modest number of international law violations. Titan Corp.” 28 B.. International Studies. the Sosa decision limited the scope of potential claims that might have otherwise been brought under the ATCA. Candidate 2010." n120 Though the court stated that the statute should be "gauged against the current state of international law." n124 . Johns Hopkins University. such conduct by private actors "is not actionable under the Alien Tort Statute's grant of jurisdiction.A.D. . Alvarez-Machain. Pena-Irala. 198-199 Domestic tort law applied to PMCs abroad may serve as means to deter. n122 In 2005. n118 After the Second Circuit's expansive reading of "the law of nations" in Filartiga v. holding that it was "a jurisdictional [*199] statute creating no new causes of action. committed in violation of the law of nations or a treaty of the United States.. 2007]. a rush of human rights claims were brought under the statute. n116 The Alien Tort Claims Act ("ATCA") grants district courts jurisdiction over "any civil action by an alien for a tort only.J.com Page 220 of 229 THE ALIEN TORT CLAIMS ACT IS A VERY WEAK CHECK ON PMC ABUSES.victorybriefs." n117 ATCA offers at least a theoretical basis of jurisdiction over suits filed by foreigners against PMCs. District Court applied the Sosa precedent to the Abu Ghraib victims' torture allegations under the ATCA in Ibrahim v.
n174 Specifically. Boston University School of Law. contrasted with the limited support for Resolutions 2465 and 3103. groups. “Note: Going To War With The Army You Can Afford: The United States.. 205 The General Assembly again addressed the broader issue in 1974 with the Definition of Aggression ("Resolution 3314").” 28 B. Taken together.10PF6-Wikileaks www. Such condemnation applies to all states." n175 Thus. B. International Law. Candidate 2010.D. the unanimous adoption of Resolutions 2131. Resolution 3314 fell in line with the Hague V tradition followed by Resolutions 2131 and 2625: it prohibited state use of mercenaries as a means of foreign intervention under all circumstances. pp. which carry out acts of armed force against another State . 2007]. 2625. irregulars or mercenaries. And The Private Military Industry. Resolution 3314 condemned states that sent "armed bands. International Studies.U. . Adam Ebrahim [J.victorybriefs.. 181.A. . Int'l L. suggests an international consensus and custom to disavow state use of mercenaries in armed attacks on another state. but does not speak directly to the status of mercenaries as individuals.J.com Page 221 of 229 INTERNATIONAL LEGAL NORMS GENERALLY PROHIBIT STATES FROM HIRING MERCENARIES TO ENGAGE IN ARMED ATTACKS AGAINST OTHER STATES. and 3314. n173 Resolution 3314 listed certain practices that constituted a breach of the Article 2(4) understanding of the use of force under any circumstances. Johns Hopkins University. but did not criminalize the practice or address the individual status of mercenaries themselves. History..
209-210 Although the UN Mercenary Convention imposes a clear obligation on states to refrain from recruiting. n88 "The international community's fear of mercenaries lies in that they are wholly independent from any constraints built into the nation-state system. 298 The lack of a clear reporting structure is a source of concern because substituting private contractors for military forces can constitute a procedural device that enables decision makers to escape n85 making the tough calls: "It's.J. PMCs tend to undermine the enforcement of a basic principle of international law.com Page 222 of 229 VERY FEW STATES ARE PARTIES TO THE UN MERCENARY CONVENTION Adam Ebrahim [J. Saad Gul [Law Clerk to The Hon. n206 In fact." n89 . JD Wake Forest University School of Law]. “Note: Going To War With The Army You Can Afford: The United States. History. about avoiding tough political choices concerning military needs.victorybriefs. Johns Hopkins University. member states have ratified the treaty. but this did not occur until 2001. Chief Judge. Boston University School of Law. of the six original OAU signatories.10PF6-Wikileaks www. “THE SECRETARY WILL DENY ALL KNOWLEDGE OF YOUR ACTIONS: THE USE OF PRIVATE MILITARY CONTRACTORS AND THE IMPLICATIONS FOR STATE AND POLITICAL ACCOUNTABILITY.. financing. and to date nobody has been prosecuted under the treaty. and training mercenaries. Candidate 2010.. the UN Mercenary Convention's specific list of vague requirements makes it nearly impossible to find anyone who fits all of the criteria. John C. when Costa Rica acceded to the treaty. n87 The element of state accountability is what distinguishes a lawful combatant from an unlawful one. the accountability problem is equally profound.U. pp. Rev.N. Int'l L. By blurring state accountability.'" n207 THE LACK OF A CLEAR REPORTING STRUCTURE UNDERMINES PMC ACCOUNTABILITY. the document exists at best as de lege ferenda. Article 19 states that the treaty would enter into force thirty days after the twenty-second nation ratified the agreement. and only seven of the fifty-three OAU states are party to the treaty in total. B. International Studies. n205 Even as applied to the twenty-eight ratifying states. 181. North Carolina Court of Appeals. just Cameroon ratified the agreement. reserve call-ups and the human consequences of war. International Law. 287 (2006). just twenty-eight of the 192 U. 2007]. the ambiguous and unworkable definition set forth in UN Mercenary Convention has resulted in an unofficial mantra within the private military industry: "anyone who manages actually to get prosecuted [*210] under the existing antimercenary laws actually deserves to 'be shot and their lawyer beside them. n204 Moreover.D. n203 To date. using. pp.A.. And The Private Military Industry." n86 At the international level.” 10 Lewis & Clark L.” 28 B. none of which can be considered a major military power. Martin.
any one nation's decision to intervene in the affairs of another sovereign state is subject to criticism and charges of illegality and illegitimacy. . Rev. Without the endorsement of the Security Council. JD Wake Forest University School of Law]. the Security Council has reemerged as a. Martin. 287 (2006). Chief Judge. John C. if not the. such as using MPRI to assist Croatia without technically violating the embargo.victorybriefs. pp. North Carolina Court of Appeals. but they also gut the concepts of state responsibility and collective action.com Page 223 of 229 THE USE OF PMCS MAKES IT EASIER TO BYPASS THE SECURITY COUNSEL AND TRADITIONAL STATE RESTRICTIONS ON THE USE OF MILITARY FORCE. 298299 Commentators have noted that PMCs are dangerous precisely because they allow states to bypass mechanisms for state responsibility: In the post-Cold War era.10PF6-Wikileaks www. n90 Not only do PMCs make it considerably easier to bypass the Security Council and evade restrictions. n91 While the United States has found this useful in certain instances. But although the Security Council attempts to regulate the [*299] behavior of nation-states and their national militaries.” 10 Lewis & Clark L. it also runs the risk of finding itself drawn into undesirable conflicts without n92 Security Council sanction precisely because of the loose regulation of PMCs at both the international and the domestic level. Saad Gul [Law Clerk to The Hon. it (like international law more generally) has comparatively less influence over the activities of private agents. “THE SECRETARY WILL DENY ALL KNOWLEDGE OF YOUR ACTIONS: THE USE OF PRIVATE MILITARY CONTRACTORS AND THE IMPLICATIONS FOR STATE AND POLITICAL ACCOUNTABILITY. legitimate source for the authorization of military intervention in the name of collective security.
Even if technically legal. JD Wake Forest University School of Law]. Chief Judge. n121 For instance. 287 (2006).victorybriefs. there is little doubt that private corporations are far better able to evade unwelcome Congressional or public scrutiny than the uniformed services. has gone so far as to argue that the current wave of combat privatization is driven by this desire for "plausible deniability" rather than any cost savings. military activity around the globe. including the Commerce. P. n124 Indeed.10PF6-Wikileaks www.S. pp. and State Departments. North Carolina Court of Appeals. the entire notion that outsourcing of governmental and military functions saves money is hotly disputed.W.com Page 224 of 229 BUREAUCRACY UNDERMINES THE TRANSPARENCY THE PMC CONTRACTING PROCESS AND GIVES PLAUSIBLE DENIABILITY FOR PMC ABUSES. n123 One prominent expert in the area of private security contracting. John C. Martin. Interior. n126 . Saad Gul [Law Clerk to The Hon. meaningful oversight is impossible. n122 With such bureaucratic sleights of hand.” 10 Lewis & Clark L. n125 On the other hand. Rev. “THE SECRETARY WILL DENY ALL KNOWLEDGE OF YOUR ACTIONS: THE USE OF PRIVATE MILITARY CONTRACTORS AND THE IMPLICATIONS FOR STATE AND POLITICAL ACCOUNTABILITY. many of CACI's contractors at Abu Ghraib were funded through a Department of the Interior [*304] Contract for Information Technology Services. 298299 Congressional oversight becomes an even more distant prospect when PMC contracts are routed through a variety of channels. Singer. such actions serve to significantly dilute Congressional oversight of U.
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THE US CANNOT ESCAPE RESPONSIBILITY FOR THE ACTIONS OF PMCS. Saad Gul [Law Clerk to The Hon. John C. Martin, Chief Judge, North Carolina Court of Appeals. JD Wake Forest University School of Law], “THE SECRETARY WILL DENY ALL KNOWLEDGE OF YOUR ACTIONS: THE USE OF PRIVATE MILITARY CONTRACTORS AND THE IMPLICATIONS FOR STATE AND POLITICAL ACCOUNTABILITY,” 10 Lewis & Clark L. Rev. 287 (2006), pp. 308 Under international law, states bear some responsibility for the actions of affiliated but non-state entities. n163 Professor Cheng explains this idea through the notion of imputability: Imputability in international law is the juridical attribution of a particular act by a physical person, or a group of physical persons, to a State, or other international person, whereby it is regarded as the latter's own act. Imputability is a basic notion in the concept of State responsibility and is fundamentally linked with the juridical concept of the State in international law. n164 Both the United States and United Nations have held states responsible for the conduct of non-state actors allegedly under the latter's control. n165 Indeed, they have sanctioned and taken action against nations who are complicit in the unlawful actions of non-state actors. n166 International tribunals have followed parallel reasoning to adopt identical conclusions. n167 At its most extreme, such complicity can lead to designation of a nation as a state sponsor of terrorism. n168 These sponsors are held accountable for the acts of their agents, despite disavowing the latter's actions. If the shoe were on the other foot - the subject of contention being the unlawful activities of American-affiliated PMCs - the United States could not rely entirely on disassociating itself from the acts of the latter.
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UNDER A DEONTOLOGICAL FRAMEWORK, USING PMCS FOR HUMANITARIAN INTERVENTION IS MORALLY PROBLEMATIC BECAUSE OF THE PROFIT-MOTIVE. James Pattison [Lecturer in Politics, School of Social Sciences, the University of Manchester, UK]. Outsourcing the responsibility to protect: humanitarian intervention and private military and security companies. International Theory, 2, pp 1-31 (2010), pp. 9 The second premise also seems to be correct. The argument that self-interest is an inappropriate motive to undertake humanitarian intervention is intuitively plausible. This argument is based on the Kantian notion that individuals should be motivated by the right sort of reasons for their actions to have moral worth. For instance, if the reason for an individualʼs donation to charity is a tax break rather than wanting to help those that are more disadvantaged, that individualʼs action has less moral worth. Accordingly, if we undertake humanitarian intervention in order to benefit ourselves, it appears to be less morally valuable. It follows that intervention by a PMSC is morally problematic because both the employees of the PMSC – the private contractors – and those in charge of the PMSC – for instance, its CEO, board, or shareholders – may not possess a humanitarian motivation. A further objection is that the possible financial motivations of a PMSC and its personnel are particularly egregious. 1 The problem is not the financial motivation in itself – possessing a remunerative motive in other contexts is not necessarily morally problematic. Rather, the problem is possessing a financial motivation in the context of using military force. The use of military force inflicts suffering on individuals. It seems wrong then that individuals are motivated by financial gain to such an extent that they are willing to inflict suffering (or assist others to inflict suffering).2 We tend to believe instead that there are limits to the actions that an individual can legitimately undertake for financial gain. 3
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THE USE OF PMCS REDUCES DEMOCRATIC ACCOUNTABILITY IN HUMANITARIAN INTERVENTIONS. James Pattison [Lecturer in Politics, School of Social Sciences, the University of Manchester, UK]. Outsourcing the responsibility to protect: humanitarian intervention and private military and security companies. International Theory, 2, pp 1-31 (2010), pp. 11 Why is it that employing PMSCs reduces democratic control over a humanitarian intervention? The first reason concerns governmental decision-making on humanitarian intervention. Governments can employ PMSCs to circumvent many of the constitutional and parliamentary – and ultimately democratic – constraints on the decision to send troops into action. For instance, the US President can use PMSCs to reduce the role that Congress plays in decisions about the use of force (Percy 2006, p. 16). As such, using PMSCs can undermine a legislatureʼs input into the decision to intervene and subsequent choices during the intervention (such as to increase troop numbers and spending). Using private companies also gives the government more scope to initiate an intervention, or to extend the size of state involvement, without public debate beforehand (Leander and Rens van Munster 2007, p. 209). This is because there is a general lack of transparency about the use of these companies. As Percy (2006, p. 21) notes, simple facts about the industry, such as its size, the economic savings (if any) of using private force, and the number of contractor deaths are difficult and sometimes impossible to come by, and often obscured because of the secretive way that states make contracts with PMSCs. Hence, using PMSCs allows “governments to carry out actions that would otherwise not be possible, such as those that would not gain legislative or public approval” (Singer 2005, p. 125).
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USE OF PMCS IN HUMANITARIAN INTERVENTION UNDERMINES DEMOCRATIC LEGITIMACY BECAUSE WE HAVE LESS CONTROL OVER PMCS THAN WE DO OVER CONVENTIONAL FORCES. James Pattison [Lecturer in Politics, School of Social Sciences, the University of Manchester, UK]. Outsourcing the responsibility to protect: humanitarian intervention and private military and security companies. International Theory, 2, pp 1-31 (2010), pp. 11-12 The second issue concerns the degree of control that states have over a humanitarian intervention. By outsourcing military force, the state (including both the legislature and the executive) loses some control over how that force is used during the intervention. It is difficult for governments and legislatures to monitor the behaviour of private contractors and to make decisions accordingly. Lines of command and control, from democratically elected representatives to soldiers, also become blurred, as private contractors are ultimately accountable to their employers rather than the state. This may mean that they follow the orders of the executives of a private company rather than the military commanders of the state employing their services. According to Singer, the security goals of clients are often in tension with the firmsʼ aim of profit maximization. The result is that considerations of the good of a private company are not always identical with the public good. For privatized peacekeeping, the ensuing dangers include all the problems one has in standard contracting and business outsourcing. The hired firms have incentives to overcharge, pad their personnel lists, hide failures, not perform to their peak capacity, and so on. The worry, though, is that these are all now transferred into the security realm, where peopleʼs lives are at stake (2003b, pp. 5–6). The contract between a state and a PMSC does little to change this situation. Contracts are often ambiguous and provide companies with a large degree of freedom in the theatre of operations. They also often lack oversight mechanisms, have unspecific terms without external standards of achievement, and leave it to PMSCs to evaluate themselves whether the contract is being met (Schreier and Caparini 2005). They therefore do little to ensure control of the behaviour of the PMSC by the legislature, executive, and public opinion during an intervention.
if they tackle the humanitarian crisis straightaway. . 540). PMSCs have reason to prolong insecurity so that they continue to be employed. International Theory.victorybriefs.com Page 229 of 229 PMCS HAVE AN INCENTIVE TO BE INEFFECTIVE AT HUMANITARIAN INTERVENTIONS. School of Social Sciences. pp.10PF6-Wikileaks www. PMSCs have an incentive not to be effective. PMSCsʼ possible profit motivation also means that they sometimes have incentives to avoid undue risks and to break a contract if the situation becomes too dangerous. Nonetheless. p. pp. the University of Manchester. 2. This incentive to be ineffective may be somewhat counter-balanced by the need to have a good reputation in order to be employed again. especially in the longterm. Their fortune relies on continued business. James Pattison [Lecturer in Politics. pp 1-31 (2010). UK]. their services will no longer be required. which can further harm the effectiveness of an intervention (Singer 2003a. a PMSC may be able to prolong the conflict without it being obvious that it is doing so and consequently without harming its reputation (Bures 2005. 155–9). As a result. 20 Furthermore. Outsourcing the responsibility to protect: humanitarian intervention and private military and security companies. If they are too successful.
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