The New Revolution in Military Affairs: Private Sector Warfare
After giving a talk at Johns Hopkins University to the Paul Nitze School of Advanced International Studies back in 2005, former United States Secretary of Defense Donald Rumsfeld was asked by a student what rules were in place to govern the behaviour of private military contractors operating in Iraq, and whether or not the Secretary was aware of any studies showing them to be cheaper to deploy than regular U.S. military personnel. Rumsfeld began his revealing reply by stating that:
“It is clearly cost-effective to have contractors for a variety of things that military people need not do, and that for whatever reason other civilians, government people, cannot be deployed to do.” (our emphasis)
Unable to point to a study showing private military contractors to be more cost effective than regular U.S. military personnel, he went on to state that:
“I personally am of the view that there are a lot of things that can be done for a short time basis by contractors that advantage the United States and advantage other countries who also hire contractors, and that any idea that we shouldn’t have them I think would be unwise.”
Given Rumsfeld’s efforts to neoliberalize the American military apparatus during his tenure as Secretary of Defense, it is not surprising that he would present the privatization of erstwhile government functions as self-evidently cost effective – the military-industrial-complex’s long history of massive cost overruns and abuse of ‘cost plus’ contracts notwithstanding (see, for example, William Hartung’s study of Lockheed Martin). But more suggestive is Rumsfeld’s mention of “a lot of things that can be done” by private contractors that “advantage the United States” but that cannot be done “for whatever reason” by civilians and government. It is incumbent upon those who would seek to limit the influence of the military-industrial complex and American imperial expansion to ask what these things are, what advantages they provide the United States, and why they can’t be done by civilians or government employees.
What Rumsfeld began pushing early in his tenure as Secretary of Defense was not without precedent. For most of ancient and early modern history, the world’s geopolitical contours were shaped not by national armies, but mercenaries and militia groups such as the Nubian Medjay, Japanese ninjas and Swiss pikemen. The signing of the Peace of Westphalia in the 17th century was partly in response to the massive influence of mercenaries and the land degradation left in their wake. Europe’s most profitable industry was to be replaced by citizen soldiers carrying the flags of modern states. But the Rumsfeld Doctrine and the U.S.-led ‘Global War on Terror’ has provided a kind of renaissance for private sector warfare, as tens of thousands of contractors now fight and die alongside enlisted soldiers in Iraq and Afghanistan. The private military and security companies (PMSCs) that directly employ these contractors, defined by the UN as any ”…corporate entity which provides on a compensatory basis military and/or security services by physical persons and/or legal entities”, provide a range of armed and unarmed services to the government, ranging from the protection of diplomatic installations and ‘VIPs’ to security training, interrogation, and ‘extraordinary rendition’.
According to recent U.S. government reports, there were more than 28,000 private military contractors being paid by the US Department of Defense (DoD) in Iraq and Afghanistan at the start of 2011. Across both countries the DoD has a total contractor workforce of 155,000, eclipsing even that of uniformed personnel. The costs of maintaining such a large for-profit empire between 2005 and 2010 were staggering: $33.9 billion dollars worth of contracts went to firms operating in Afghanistan, and another $112 billion went to companies in Iraq. The U.S. government has also privatized many of its intelligence services: 70 percent of the $60 billion U.S. intelligence budget was spent on contractors in the 2005 fiscal year, and the majority of the Pentagon’s Counterintelligence unit is staffed by contractors known as ‘green badgers’; the same green badgers that may have participated in waterboarding of CIA detainees in Iraq . Indeed, such is the American military’s reliance on PMSCs that it raises profound questions on the status of state power and sovereignty in the 21st century.
The UN’s ‘International Convention against the Recruitment, Use, Financing and Training of Mercenaries’ was signed and ratified in 1989, and came into force on the 20th of October 2001. Despite protests from PMSCs and the trade organizations that represent them—such as the (Orwellian named) International Peace Operations Organization—that they are not mercenary groups, Article 1, 1(b), defines a mercenary as anybody who ‘Is motivated to take part in the hostilities essentially by the desire for private gain…’. Not surprisingly, neither the U.S. nor the U.K., where 80 percent or PMSCs are registered, have ratified the agreement. It is estimated that the annual market revenue of the PMSC industry is around $100 billion.
Controversies cling to PMSCs, including many instances of innocent civilians murdered in Iraq and Afghanistan. Jeremy Scahill’s book Blackwater: The Rise of the World’s Most Powerful Mercenary Army makes for an excellent – if depressing – start to learn more about the role of PMSCs in Iraq, where security contractors numbered at least 48,000 in 2007. Along with the infamous example of innocent civilians dying at the hands of Blackwater employees in the Nisoor Square massacre, human rights abuses and torture in Iraq’s Abu Ghraib prison were carried out with impunity by private contractors CACI and L-3 Services. The U.S. Supreme Court recently threw out cases against these corporations, given that (a) former Iraqi detainees are not empowered to challenge a corporation since torture committed by a PMSC is not a violation of international norms, and (b) the doctrine of ‘battlefield preemption’ holds that tort claims against a contractor cannot take place if said contractor is integrated within a military command authority. The result is a deadly legal shadow that stretches far and wide.
PMSCs continue to have an ambiguous relationship with legislation designed to hold U.S. soldiers accountable, such as the ‘Military Extraterritorial Jurisdiction Act’ (MEJA) and the ‘Uniform Code of Military Justice’ (UCMJ). The underlying problem stems from International Humanitarian Law and Geneva Protocols that define a person as either a ‘combatant’ or a ‘civilian.’ The aim of such a distinction is to offer both parties ‘protection’, whether from unwarranted harm or legal prosecution. The combatant status is reserved for armed forces and antiquated World War II ‘militias’, meaning that PMSC employees are de facto ‘civilians’. Compounding these legal problems, corporate contracts in Iraq and especially Afghanistan are often settled without the involvement of ‘civil society’ and national authorities, leading to a (deliberately) opaque chain of command between PMSC, contracting state, states of operation, and ‘client’. This lack of legal oversight is being addressed, albeit slowly and unevenly. In the US for example, Section 862 of the National Defense Authorization Act of 28 January 2008 and the Department of Defense ‘Interim Finale Rule’ of 17 July, 2009 are aimed at addressing the regulation of PMSCs. Yet these gestures do very little to address the regulatory gaps at the international level: just how exactly does domestic law operate within a foreign state, if at all? In the terse words of the UN Working Group:
“The effect of this situation is that PMSCs are rarely held accountable for violations of human rights. Although there have been efforts to address this glaring gap over the years, accountability of private military and security contractors continues to be a challenge, with a startling lack of prosecutions”.
Such is the scale of these violations that the UN is working on a draft ‘Convention on Private Military and Security Companies’. The two primary forces compelling the convention are the already discussed regulatory and legal gaps that PMSCs dwell within. But perhaps more significantly is the erosion of the state as the sole ‘provider of legitimate force’. The existence of PMSCs de facto challenges the monopoly of the state’s claim to violence, hence a plethora of articles suggested by the UN that seek to affirm and strengthen the state’s sovereignty, responsibility, territorial integrity, and ‘inherent state functions’, which cannot be outsourced (read: privatized) by PMSCs. All of which boils down to a single, pivotal point: PMSCs are undermining, reshaping, and reproducing once ‘inherent state functions’ under a new geopolitical alignment.
What is therefore at stake are the legal and corporate mechanisms through which the state abrogates its international legal responsibility, while simultaneously losing none of its military might and power. In October 2011, US troops are set to withdraw from Iraq, with US presence in the country falling under the responsibility of the State Department, located in the world’s largest and most expensive embassy, one visible even from space. Yet while soldiers bearing the US flag will disappear, taking their place in 2012 will be 5,500 private military and security contractors. Such accelerating privatization of once ‘inherent state functions’ reveals a fundamental paradox at the heart of many PMSCs: by acting as proxies for state geopolitical power, they simultaneously undermine and buffer it. As Eden Barlow, founder of the ‘first’ modern PMSC, Executive Outcomes describes: ‘As a private corporate entity, EO is able to operate without the restrictions of any particular nation’s flag leading our soldiers into battle’.
The U.S. government has long used ‘black-ops’ to secretly (or not-so-secretly) strengthen its hegemony abroad (e.g. Latin America in the 1980s), while limiting the political obstacles and consequences to declaring war at home. Such ghost wars appear likely to be part and parcel of the Obama Administration’s ‘counterterrorism’ efforts in central and south Asia. After declaring the end of combat operations in Iraq in 2010 and announcing a troop ‘drawdown’ in Afghanistan the next year, the Obama Administration awarded the Xe International (formerly Blackwater) nearly $250 million in State Department contracts. This, together with the established links between the CIA and PMSCs, seems to suggest that for-profit corporations are the new tools of geopolitical security and extrajudicial violence in the 21st century. In this sense, PMSCs embody ‘American exceptionalism’ like no military unit could. The very same government that has for 10 years condemned shadowy, non-state groups is now increasingly relying on a fighting force that is obscured from the vision of public opinion, immune from international law, and unfettered by conventional military checks and balances.
 Chesterman, S. (2008). ‘We can’t spy…if we can’t buy! ’: The privatization of intelligence and the limits of outsourcing ‘inherently governmental functions’. The European Journal of International Law, 19(5): 1055-1074.
Copyright Understandingempire 2011