Outsourcing War: The Just War Tradition in the Age of Military Privatization

By Amy E. Eckert

Recent decades have seen an increasing reliance on private military contractors (PMCs) to provide logistical services, training, maintenance, and combat troops. In Outsourcing War, Amy E. Eckert examines the ethical implications involved in the widespread use of PMCs, and in particular questions whether they can fit within customary ways of understanding the ethical prosecution of warfare. Her concern is with the ius in bello (right conduct in war) strand of just war theory.

Just war theorizing is generally built on the assumption that states, and states alone, wield a monopoly on the legitimate use of force. Who holds responsibility for the actions of PMCs? What ethical standards might they be required to observe? How might deviations from such standards be punished? The privatization of warfare poses significant challenges because of its reliance on a statist view of the world. Eckert argues that the tradition of just war theory—which predates the international system of states—can evolve to apply to this changing world order. With an eye toward the practical problems of military command, Eckert delves into particular cases where PMCs have played an active role in armed conflict and derives from those cases the modifications necessary to apply just principles to new agents in the landscape of war.

• Language: English
• Publisher: Cornell University Press
• Release date: Feb 19, 2016
• ISBN: 9781501703560

Amy E. Eckert

AMY E. ECKERT is an associate professor of political science at the Metropolitan State University of Denver. She is coeditor of the essay collection Rethinking the 21st Century: “New” Problems, “Old” Solutions.

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OUTSOURCING WAR

The Just War Tradition in the Age of Military Privatization

AMY E. ECKERT

CORNELL UNIVERSITY PRESS

ITHACA AND LONDON

For Charlotte and Claire Marks

CONTENTS

Acknowledgments

List of Abbreviations

1. The Just War Tradition and the New Market for Private Force

2. The State System and the Evolution of the Just War Tradition

3. Jus ad Bellum Principles and Privatized War

4. Privatization and the Normative Challenge to Jus in Bello Rules

5. The Ethics of War, the Market for Private Force, and the Public/Private Divide

References

Index

ACKNOWLEDGMENTS

I first became interested in privatization and its effects on the ethics of war in the context of Iraq. Private military companies (PMCs) and their employees, so well-hidden from public view but so instrumental to the war effort, cannot help but intrigue. My serious contemplation of this topic began when I watched Erik Gandini and Tarik Saleh’s 2005 documentary Gitmo: The New Rules of War. It was this film’s treatment of the PMCs and their role in prisoner abuse at Guantanamo Bay that made me want to learn more about the role of private actors in the public function of war and to think about the inadequacy of just war principles to address these new participants in war. I am grateful to the filmmakers for sparking my interest in these actors, their role in warfare, and the effect of that role on the just war tradition. My early interest in the topic was fueled by some good work on the phenomenon of privatization, particularly that of P. W. Singer and Deborah Avant.

Early on, this project benefited from conversations with Steve Chan, David Mapel, Steve Roach, Laura Sjoberg, and Ali Thobhani, and I am grateful for their comments, insights and early encouragement. A very early piece on this subject was presented at the workshop ‘New’ Problems, ‘Old’ Solutions held in San Francisco before the 2007 ISA-West meeting. Funding from the International Studies Association was instrumental to this workshop. I have also presented earlier versions of various chapters of this book at conferences where I received helpful feedback.

Most especially I appreciated helpful advice and comments from my friends and colleagues who have read and commented on earlier drafts of part or all of this work, including Douglas F. Becker, Lisa Burke, Aaron Fitchtelberg, Caron Gentry, Kim Hudson, Tony Lang, George Lopez, Cheyney Ryan, Richard Shapcott, Laura Sjoberg, and Robert Williams. All of these individuals have given generously of their time and their talents, and their comments have greatly improved the book. I would also like to make special mention of the late Fran Harbour for helpful comments and encouragement. Fran’s warmth and hospitality toward junior scholars will be greatly missed.

The Department of Political Science and the College of Letters, Arts, and Sciences at the Metropolitan State University of Denver have provided essential support for the completion of this book. I acknowledge this support with gratitude, especially the enthusiastic encouragement from my department chair, Robert Hazan, my dean Joan L. Foster, and Provost Vicki Golich.

Writing this book has given me something of an unusual perspective on war, and I’m grateful to those who love me for indulging my interest in, and sometimes tolerating seemingly random commentary about, the private part of war and the application of the just war tradition to it. I appreciate the love and support of my family including my two young nieces, to whom the book is dedicated, and my stepfather, Ron Morris, who always keeps me on track with this project and every other. I would also like to acknowledge my significant other, Daniel Swannigan, for his loving support. Finally, my cat Oscar helpfully reminded me to take the occasional break from working on this book by going to sleep on top of whatever I was attempting to read or write.

ABBREVIATIONS

Chapter 1

THE JUST WAR TRADITION AND THE NEW MARKET FOR PRIVATE FORCE

A small plane crashes in the mountains south of Bogota, Colombia, after its engine fails. Members of the Revolutionary Armed Forces of Colombia (the FARC), a leftist guerrilla group that is embroiled in Colombia’s civil war, come upon pieces of the downed aircraft along with the pilot and four US soldiers. The FARC immediately kills the pilot and another man and then takes the remaining three soldiers into custody. Before their eventual release, the soldiers would be held for more than five years. They reported that they were held in conditions inconsistent with the Geneva Convention standards for detaining prisoners of war (POWs). Specifically, the soldiers reported that their captors denied them sufficient food, adequate medical care, and communication with the outside world (Gonsalves, Stansell, and Howes 2009, 232, 412).

Video of the emaciated soldiers provides a narrow window into the conditions of their captivity. Outside of this brief glimpse, the captured soldiers receive little media attention for the duration of their captivity. According to their families, the three soldiers were all but forgotten (Ferero 2004). The FARC expressed a willingness to recognize the captured US soldiers as POWs, but in an odd and seemingly inexplicable twist, resistance to classifying these soldiers as POWs came from Washington (de Nevers 2006, 103). The United States did not characterize the soldiers as POWs or demand rights under the international law. Instead, Washington chose to characterize the captured men as US citizens, or kidnap victims, or hostages.

After five years of captivity, the soldiers are freed in 2008 along with twelve others, among them Colombian presidential candidate Ingrid Betancourt, in a daring raid by the Colombian military. Colombian intelligence agents infiltrate the FARC and lead the rebels to believe that FARC members will pick up the hostages by helicopter and relocate them to another FARC camp (Romero 2008; Romero and Cave 2008). Those who picked up the hostages are, in reality, Colombian soldiers, wearing the Che Guevara t-shirts favored by the FARC rebels, who rescue the US soldiers and the other hostages. Only after their repatriation does the United States extend the soldiers the treatment it normally gives to POWs, including a yellow ribbon ceremony at the army medical center where they receive treatment (Christenson 2008).

The United States’ treatment of the soldiers during their captivity seems incomprehensible. Why would the United States deny that its captured military personnel were POWs, particularly when the FARC was willing to acknowledge them as such? The decision becomes both simpler and more complicated when we realize that they were not soldiers in the conventional sense, even though they were performing military functions. The three men were contractors, employed by a subsidiary of a company called Northrop Grumman. As private contractors, these men were participants in a growing transnational market for private force. Private military companies (PMCs) now perform a range of functions previously carried out exclusively by members of national militaries; their customers include sovereign states in addition to rebel movements, international organizations, and other companies. In this particular case, the US government hired the company that employed the captured men to perform functions associated with US support of antinarcotics measures in Colombia.

The three PMC employees were not part of the national military. As such they do not readily fit the definition of a lawful combatant enshrined in the Geneva Conventions, a set of documents that states adopted after World War II to regulate the conduct of armed conflict. That definition requires that lawful combatants wear uniforms, carry arms openly, belong to a responsible command, and comply with the laws and customs of war. The status of lawful combatant matters because those who fall outside its boundaries are not entitled to the protections that the Geneva Conventions extend to captured combatants. Indeed, PMC employees fit the Geneva definition of lawful combatants loosely, if at all. In the US system, PMC employees fall outside the chain of command. PMC employees may or may not wear uniforms or carry arms, depending on company policy and their function.

The ambiguities in their status confused even the detainees themselves. In a memoir about their experiences, one of the men observed that

as civilian contractors, we didn’t have strict rules of engagement or the clear-cut demands of the Uniform Code of Military Justice to guide our actions. If we were still active-duty military, our first obligation would have been to escape, but we weren’t military, we were civilians. As such, our objective was survival. (Gonsalves et al. 2009, 32)

As PMC employees, the men captured by the FARC were private citizens who were selling services in much the same way as would any gainfully employed person. In the current moral framework of thinking about war, as well as the legal rules that track those moral principles, they are performing the same functions as soldiers but they are formally civilians who are not entitled to POW status. Their home state’s position on their legal status is less puzzling because as civilians they fall outside the purview of the POW regime.

In other respects, civilian status makes their situation more puzzling. The men held by the FARC were performing functions that have been, for the past few centuries, exclusively the domain of states and their national militaries. The transnational market for private force in which these men participate chips away at the idea that wars are initiated and fought by states that hold a monopoly on the legitimate use of force. In the present international system, states are increasingly waging war with PMCs. Like the FARC captives, participants in the growing private side of war are largely hidden from public view, particularly relative to their counterparts in national militaries. As nonstate actors, PMCs and the individuals they employ can choose to operate opaquely. Their relative obscurity poses real dilemmas for moral reasoning about war. The three PMC employees held by the FARC were harbingers of larger problems posed by the reemergence of private actors in war.

The just war tradition in its present form incorporates a certain set of assumptions about the state. The state’s monopoly over the legitimate use of political violence has become central to our understanding of the state and, by extension, to our moral reasoning about war. This view of the state tells us that wars are fought by national militaries under the control of the state. These empirical claims about the state and war also drive our normative thinking. Though reasoning about justice and war predates the emergence of the state system by many centuries, the contemporary form of the just war tradition incorporates statist assumptions at a fundamental level. Contemporary thinking about justice and war assumes that wars are fought by national militaries, and so just war reasoning is ill-equipped to address recent transformations within the international system that have chipped away at the centralization of force. However, I argue that the just war tradition provides principles that allow it to address the challenges posed by PMCs.

Accounting for PMCs requires that we understand their place within the development of the state system. The companies that belong to the PMC industry, all but independent of state control, are without precedent in the Westphalian system. Private force—mercenaries—played a significant role in the pre-Westphalian system, but it became marginalized with the rise of the state. Today the remarkable growth of the private security industry has partially reversed the monopoly over the legitimate use of force that states consolidated over the past several centuries. PMCs are no longer anomalous or marginal, but are instead an important part of the security landscape. Over the past two decades, they have grown both in terms of sheer numbers and with respect to the tasks they perform. PMCs now perform the full range of functions that national militaries used to perform. Perhaps most commonly they perform logistics and support functions, but they also provide military training and advice and even engage in combat. PMCs perform these tasks in growing numbers for a range of employers, both states and nonstate actors such as a rebel group or a nongovernmental organization (NGO). The just war tradition must incorporate the implications of this reprivatization of force.

The State System and the Use of Force

The model of a national military composed of citizens is, historically, the exception rather than the rule. History tells us that private force has been pervasive in war. The earliest records of warfare reflect the use of hired fighters (Singer 2003, 20). The ancient Romans employed hired units as their empire expanded and they encountered ever-greater difficulties in recruiting native Romans. By the Middle Ages, hired troops had nearly taken over the battlefield, as most European armies consisted largely of mercenaries (Thomson 1994, 29). In the conventional story, the rise of the state eliminated actors that had been important to world politics prior to the signing of the Peace of Westphalia in 1648. In reality, the evolution of the international system and the nature of the state itself are more complex: the state began to consolidate its position vis-à-vis other actors, but it did not immediately displace them. The marginalizing of private actors in warfare would come later.

Janice Thomson (1994, 11) argues that the national state required the elimination of mercenaries and other nonstate actors. Thomson attributes the elimination of nonstate violence to institutional transformations within sovereignty. Early states were inclined to authorize nonstate violence in their pursuit of wealth and power. However, states then sought to eliminate nonstate violence because of the unintended consequences of that violence, which proved injurious to state interests (20). Mercenarism was a key form of nonstate violence that early states used in the service of their interests. The structure of the feudal system forced sovereigns to resort to private force because they had insufficient public forces at their disposal. Sovereigns utilized private force to pursue wealth and power. States relied on the use of private force, including mercenaries, to secure for themselves maximum freedom with minimal responsibility. Ultimately, though, these sovereigns found themselves caught in a contradiction. As Thomson argues, To maximize nonstate actors’ effectiveness, states needed to minimize the constraints on their activities and profits. Minimal constraints meant little state control and reduced state autonomy (43). The independence of these nonstate actors was both their strength and their weakness from the perspective of the states that employed them. Because neutrality required states to prevent the use of their territory for hostile acts, states found it difficult to maintain neutrality in a conflict when their own nationals were fighting as mercenaries. The developing definition of sovereignty meant that military service was no longer a pure international market commodity and the mercenary was not simply an economic actor (57). The compromising of state neutrality was an unforeseen consequence of the market in mercenary force, and transformations within the institution of sovereignty dried up the supply of mercenary forces.

These concerns with neutrality and control over nationals’ participation in conflicts led to prohibitions on mercenarism first in the US Neutrality Act of 1794 and, later, in similar prohibitions elsewhere. The Neutrality Act’s limitations on the ability of US citizens’ ability to enlist in foreign militaries institutionalized practices that were consistent with a universal doctrine of neutrality (Thomson 1994, 79). This concern with neutrality is partially responsible for the spread of the prohibitions on mercenarism. Elsewhere, prohibitions on mercenarism were part of efforts to enhance the state’s authority over its people. Regardless of the motivations, the prohibition on mercenary activity rewrote the relationship between states and their citizens. The rise of this prohibition relegated mercenarism, once a pervasive practice, to the margins of the international system. Private actors had been pushed out of providing force by national militaries as part of the state’s consolidation of its monopoly over political violence. The use of force was consolidated under the control of the state, and this control has become central to contemporary thinking about the state.

The marginalization of private actors, especially in the area of security, is reflected in the evolution of the just war tradition (Lang 2009, 53). Early versions of just war theory reflected a political system populated by competing authorities. As the state displaced private actors within the international system and acquired a monopoly over violence, these political developments were reflected in theorizing about justice and war. Because of their control over political violence, state actors came to occupy a dominant position in just war theory, obscuring the influence of private actors within the international system. Michael Walzer’s (2000, 135) treatment of the international system is typical of this statism. Walzer treats the international system as analogous to domestic society, with states occupying the position in the former that individuals occupy in the latter.

It is worth noting that there is skepticism with regard to this domestic analogy. Realists in particular cast doubt on the similarities on which Walzer relies. Arnold Wolfers, for one, draws a distinction between these spheres based on two key factors. The first rests on the difference between conditions within and between states: domestic conditions are characterized by order, lawfulness, and peace arising from a popular consensus on principles, so marked that some believe coercion has practically ceased to play a role; but the external relations continue to be full of bitter struggle, violence, and Machiavellian practices (Wolfers 1962, 239–40). The second is the greater potential for a focus on the good life within spheres of strong sovereign control. But as Wolfers himself noted, this distinction between domestic and international was not universal, but was instead limited to states where order and justice did exist internally. Increasingly, as I argue in the next chapter, this distinction has eroded in recent years, with growing disorder within many states and increasing order among states.

States have been able to reach consensus on key principles regarding the just war tradition. The right to self-defense, for obvious reasons, enjoys strong support among states. This is significant for Walzer’s approach, which found the primary justification for the use of force in the protection of the sovereign state (Lang 2009, 53). Walzer maintained this view even in light of growing reliance on PMCs, characterizing the state as the only reliable agent of public responsibility that we have … there isn’t any agency other than the state in the contemporary world that can authorize and then control the use of force—and whose officials are (sometimes) accountable to the rest of us (2008, 21).

This view, in which states and only states make up the international system, leaves no space for nonstate actors outside the context of civil wars or revolutionary movements. Even then nonstate actors are not entirely independent of the state system, as they are often seeking statehood or, in the case of belligerent movements, control of state mechanisms. Nonstate actors have effectively lacked standing in international society since the emergence of the modern state system.

The Growth of the PMC Industry

While the state’s monopoly over the use of force was always something of an idealization, this focus on the state was, for a period of time, largely reflective of the realities of how war was fought. In the aftermath of the Cold War, though, the number and significance of private actors, particularly PMCs, grew dramatically. In terms of revenue, PMCs earned an estimated $55.6 billion in 1990. The industry’s revenues grew at an impressive 7.4 percent a year, according to United Nations (UN) figures, and should hit $244 billion by 2016. By comparison, the US economy as a whole grew no more than 3 percent annually over the same time frame. The revenues generated by the PMC industry suggest that the sector is experiencing extremely healthy growth fueled by increased demand.

The functions performed by PMCs also speak to the significance of the industry. In Corporate Warriors, Peter Singer (2003) classifies these functions on a spear analogy, in which a PMC’s position on the spear is defined by its proximity to the battlefield. He identifies three distinct categories. The firms closest to the tip of the spear are military providers, which engage in actual fighting or other services in the battlespace itself. Military consulting firms are at the midpoint of the spear. These firms offer analysis and advice. Although they do not engage in combat directly, their contributions can nevertheless transform the tactical capabilities of their clients. Finally, military support firms, which perform functions like logistics and transportation, are furthest from the tip of the spear. A single company may provide any or all of these services: one example among many is the British firm ArmorGroup, which provides logistical support, military training, and security services along with risk analysis for a range of customers (Kinsey 2006, 9). Beyond these combat and combat-related functions, PMCs are increasingly participating in public dialogue about security issues and lend their expertise to discourse about security threats and how to address them (Leander 2006). These functions extend well beyond any particular conflict. PMCs help to shape thinking about issues in a way that makes it more likely that they will be seen as security problems that call for military solutions.

While these distinctions among functions performed by PMCs help us make sense of PMCs and the role that they play in contemporary conflicts, their significance diminishes with respect to questions of justice and war. The PMC contractors at Abu Ghraib, some of whom were implicated in the infamous detainee abuse scandal, were hired to be linguists and translators, not soldiers. They were involved in the detention of prisoners, a function far removed from the battlespace but still central to the enterprise of war and especially relevant