Published online by Cambridge University Press: 20 August 2013
This article argues that attempts to regulate the private military and security industry have been stymied by a tendency to be constantly ‘regulating the last war’ or responding to the challenges of a previous manifestation of private force rather than dealing with the current challenges. It argues that states ought to more clearly consider the direction of the industry rather than regulate in response to crises, an approach that has left regulation unequipped to deal with two fields of PSC growth: the use of PSCs against piracy, and to deliver and support humanitarian aid.
1 See, among others, Avant, Deborah, ‘The implications of marketised security’, in Perspectives on Politics, Vol. 4, No. 3, 2006, pp. 507–528Google Scholar; Singer, Peter W., Corporate Warriors: The Rise of the Privatized Military Industry, Cornell University Press, Ithaca and London, 2003Google Scholar; Kinsey, Christopher, Corporate Soldiers and International Security: The Rise of Private Security Companies, Routledge, London, 2006Google Scholar; Krahmann, Elke, States, Citizens and the Privatization of Security, Cambridge University Press, Cambridge, 2010CrossRefGoogle Scholar; Percy, Sarah, Regulating the Private Security Industry, Adelphi Paper Vol. 384, Routledge and the International Institute of Strategic Studies, London, 2006Google Scholar; Chesterman, Simon and Lehnhardt, Chia (eds), From Mercenaries to Market: The Rise and Regulation of Private Military Companies, Oxford University Press, Oxford, 2007CrossRefGoogle Scholar; Dunigan, Molly, Victory for Hire, Stanford University Press, Stanford, 2011Google Scholar.
2 Helen Power, ‘Troubled ArmorGroup secures sale to G4S’, in The Telegraph, 21 March 2008, available at: http://www.telegraph.co.uk/finance/markets/2786738/Troubled-ArmorGroup-secures-sale-to-G4S.html (all links in this article last visited November 2012).
4 Tim Spicer, ‘Interview with Lt. Col. Tim Spicer’, in Cambridge Review of International Affairs, Vol. XIII, No. 1, 1999, p. 168Google Scholar.
7 Interestingly, after 2000, the market for combat assistance still existed but went underground. The British government quashed an attempt by a UK company to provide combat assistance to Côte D'Ivoire in 2003. By 2006, when the US company Blackwater said they could offer a battalion-sized contribution to act as peacekeepers in Sudan, the leading academic commentator on the issue remarked that there was as much chance of this being accepted as there was of ‘Martians landing on Earth’, demonstrating that even in situations of demonstrable need, states had difficulty with the notion of private actors having independent command and control of large military forces. For the Martians remark, see ‘Private firms eye Darfur’, in The Washington Times, 1 October 2006, available at: http://www.washingtontimes.com/news/2006/oct/1/20061001-114438-5654r/?page=all.
9 S. Percy, above note 5, p. 226. The offensive/defensive use of force distinction is problematic in practice, as force used defensively can still be considerable and result in casualties, as the Blackwater market shooting demonstrates.
10 Helen Power, ‘Troubled ArmorGroup secures sale to G4S’, in The Telegraph, 21 March 2008, available at: http://www.telegraph.co.uk/finance/markets/2786738/Troubled-ArmorGroup-secures-sale-to-G4S.html.
11 The Montreux Document and the history of the process leading up to it are available at the Swiss Ministry of Foreign Affairs' website, available at: http://www.eda.admin.ch/psc.
12 To consult the ICoC, its negotiation process and the list of signatory companies, see: http://www.icoc-psp.org/Home_Page.html.
13 Article 47, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (hereinafter ‘Additional Protocol I’), available at: http://www.icrc.org/ihl.nsf/WebART/470-750057.
14 Article 1, United Nations Convention against the Recruitment, Use, Financing and Training of Mercenaries (1989), UN Doc. A/RES/44/34 (hereinafter ‘UN Convention’), available at: http://www.un.org/documents/ga/res/44/a44r034.htm. The UN Convention essentially reproduces the wording of Article 47 of Additional Protocol I. A third document from this period exists: the Convention of the OAU for the Elimination of Mercenarism in Africa, Libreville, 3 July 1977. It attempts to make state support for mercenaries a crime, but its impact has been insignificant. The text is available at: http://www.icrc.org/ihl.nsf/INTRO/485?OpenDocument.
15 Originally quoted in Geoffrey Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflicts, Weidenfeld and Nicolson, London, 1980, p. 375Google Scholar, note 83.
17 Zarate, Juan Carlos, ‘The emergence of a new dog of war: private international security companies, international law, and the new world disorder’, in Stanford Journal of International Law, Vol. 34, No. 1, Winter 1998, pp. 75–162Google Scholar; Abraham, Garth, ‘The contemporary legal environment’, in Mills, Greg and Stremlau, John (eds), The Privatization of Security in Africa, South African Institute of International Affairs, Johannesburg, 1999Google Scholar; Sandoz, Yves, ‘Private security and international law’, in Cilliers, Jakkie and Mason, Peggy (eds), Peace, Profit or Plunder? The Privatization of Security in War-torn African Societies, Institute for Security Studies, Johannesburg, 1999Google Scholar. The role Executive Outcomes played in Angola is slightly less clear-cut: see Sean Cleary, ‘Angola: a case study of private military involvement’, in Jakkie Cilliers and Peggy Mason (eds), Peace, Profit or Plunder? As time went on, PMCs were careful to avoid the UN Convention definition.
18 The United Nations Commission on Human Rights created the mandate of the ‘Special Rapporteur on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination’ in 1987, by Resolution 1987/16 of the Commission on Human Rights.
19 Ballesteros served from 1987–2004. He was replaced by Shaista Shameem, and ultimately in 2005 by a UN Working Group on Mercenaries, which is still in existence. A description of the mandate of the Working Group is available at: http://www.ohchr.org/EN/Issues/Mercenaries/WGMercenaries/Pages/WGMercenariesIndex.aspx.
23 For details, see C. Kinsey, above note 1, pp. 72–77. This scandal resulted in a government inquiry, which produced the Report of the Sierra Leone Arms Investigation, or the ‘Legg Report’, available at: http://collections.europarchive.org/tna/20080205132101/fco.gov.uk/files/kfile/report.pdf.
25 Francis, David J., ‘Mercenary intervention in Sierra Leone: providing national security or international exploitation?’, in Third World Quarterly, Vol. 20, No. 2, 1999, p. 222CrossRefGoogle Scholar; Alex Vines, ‘Mercenaries and the privatisation of force in Africa’, in Greg Mills and John Stremlau (eds), above note 17, p. 62.
28 See ‘Report on the question of the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, submitted by Mr. Enrique Bernales Ballesteros, Special Rapporteur, pursuant to Commission resolution 1998/6’, UN Doc. E/CN.4/1999/11, 13 January 1999, para. 41.
29 See ‘Report on the question of the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, submitted by the Special Rapporteur of the Commission on Human Rights', UN Doc A/53/338, 4 September 1998, para. 20.
30 The scandal in question was the supply of weapons by Sandline to the deposed Sierra Leonean leader Ahmed Tejan Kabbah, which violated arms embargo agreements; the main question was whether or not FCO officials (and at what level) had sanctioned the transfer.
31 See ‘Foreign Office savaged over arms to Africa’, in The Guardian, 9 February 1999, available at: http://www.guardian.co.uk/politics/1999/feb/09/foreignpolicy.politicalnews.
32 Green Papers are consultation documents that usually form the first step in changing or creating law; White Papers are the last consultation stage and usually form the substance of bills to go before Parliament. See: http://www.parliament.uk/site-information/glossary/white-paper/ and http://www.parliament.uk/site-information/glossary/green-paper. This process will be discussed in more detail in the next section.
33 Interview with FCO official, London, November 2003.
34 Both Executive Outcomes and Sandline were sacked by their clients. After a coup, the new Sierra Leonean government did not renew Executive Outcomes' contract. In Papua New Guinea, the government fired the company, a decision that led to extensive international litigation, which Sandline ultimately won. For details, see: http://www.eiu.com/index.asp?layout=VWArticleVW3&article_id=1534678553®ion_id=1510000351&country_id=450000045&channel_id=210004021&category_id=500004050&refm=vwCat&page_title=Article.
35 Dominick Donald, ‘After the bubble: British private security companies after Iraq’, Royal United Services Institute, Whitehall Papers, London, 2006.
36 Fred Schreier and Marina Caparini, ‘Privatising security: law, practice and governance of private military and security companies’, Occasional Paper No. 6, Geneva Centre for the Democratic Control of Armed Forces, Geneva, 2005, p. 47; Caroline Holmqvist, ‘Private security companies: the case for regulation’, SIPRI Policy Paper No. 9, Stockholm Institute for Peace Research, Stockholm, 2005, p. 26.
37 Thurnher, Jeffrey S., ‘Drowning in Blackwater: how weak accountability over private security contractors significantly undermines counterinsurgency efforts’, in Army Law, Vol. 64, Issue 422, July 2008, p. 64Google Scholar.
38 Clayton Hirst, ‘Dogs of war to face new curbs in Foreign Office crackdown’, in The Independent, 13 March 2005, available at: http://www.independent.co.uk/news/business/news/dogs-of-war-to-face-new-curbs-in-foreign-office-crackdown-6151383.html.
39 See ‘Mercenary firms seek tighter laws’, in BBC, 5 December 2007, available at: http://news.bbc.co.uk/2/hi/uk_news/7128046.stm.
40 See ‘MPs unimpressed by missing mercenary regulation’, in Politics.co.uk, 20 July 2008, available at: http://www.politics.co.uk/news/2008/7/20/mps-unimpressed-by-missing-mercenary-regulati.
43 There were claims that the Croatian military, which MPRI trained during the 1990s, had improved beyond all recognition. See S. Percy, above note 5, p. 226. Dyncorp was involved in a prostitution ring in Bosnia; see: http://www.huffingtonpost.com/david-isenberg/its-dj-vu-for-dyncorp-all_b_792394.html
44 Schooner, Steven L., ‘Contractor atrocities at Abu Ghraib: compromised accountability in a streamlined, outsourced government’, in Stanford Law and Policy Review, Vol. 16, No. 2, 2005, p. 560Google Scholar.
46 The Alien Tort Statute has been used to sue PMSCs in the United States; however, this type of litigation results from the clever use of existing law rather than the purposeful creation of new regulations. Atteritano argues that its potential scope of application is quite narrow. Andrea Atteritano, ‘Liability in tort of private military and security companies: jurisdictional issues and applicable law’, in Francioni, Francesco and Ronzitti, Natalino (eds), War by Contract: Human Rights, Humanitarian Law and Private Contractors, Oxford University Press, New York, 2011, p. 481CrossRefGoogle Scholar.
47 Stein, Frederick A., ‘Have we closed the barn door yet? A look at the current loopholes in the Military Extraterritorial Jurisdiction Act’, in Houston Journal of International Law, Vol. 27, No. 3, 2005Google Scholar.
48 Minow, Martha, ‘Outsourcing power: how privatizing military efforts challenges accountability, professionalism and democracy’, in Boston College Law Review, Vol. 46, 2005, p. 1014Google Scholar.
49 See ‘Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination; report submitted by Mr. Enrique Bernales Ballesteros, Special Rapporteur’, UN Doc. E/CN.4/2004/15, 24 December 2003.
50 Sarah Percy, ‘Morality and regulation’, in S. Chesterman and C. Lehnhardt (eds), above note 1, p. 26.
51 The UN Global Compact was created in 2000 and seeks to make ten core principles (relating to human rights, the environment, labour, and anti-corruption) part of acceptable practice for corporations. It is the world's largest voluntary corporate conduct organisation. For details, see: http://www.unglobalcompact.org/AboutTheGC/index.html.
53 Singer, Peter W., The Private Military Industry and Iraq: What Have We Learned and Where to Next?, Geneva Centre for the Democratic Control of Armed Forces, Geneva, 2004Google Scholar.
54 However, as argued above, the UN is trying to do too much: it is probably impossible to regulate the entire spectrum of private force, just as it is impossible to use the same piece of legislation to control drug dealers and pharmaceutical companies, an argument I have previously made in S. Percy, above note 1, p. 45.
55 See ‘Government proposes regulation for private security firms’, in Reuters, 24 April 2009, available at: http://uk.reuters.com/article/2009/04/24/uk-britain-security-idUKTRE53N59820090424.
57 Cockayne, James, Commercial Security in Humanitarian and Post-Conflict Settings: An Exploratory Study, International Peace Academy, New York, 2006Google Scholar; Abby Stoddard, Adele Harmer and Victoria DiDomenico, The Use of Private Security Providers and Services in Humanitarian Operations, Humanitarian Policy Group Report No. 27, Overseas Development Institute, London, 2008; Lilly, Damian, Vaux, Tony, Seiple, Chris, Nakano, Greg and Van Brabant, Koenraad, Humanitarian Action and Private Security Companies: Opening the Debate, International Alert, London, May 2002Google Scholar.
60 Confidential interviews with PMSC officials. The company, Aegis, already provides ‘humanitarian support services’ which can be either ‘stand-alone’ or ‘fully-integrated’, presumably indicating that it has the capacity to perform these functions independently. See: http://www.aegisworld.com/index.php/humanitarian-support-services-2.
61 James Kirkup, ‘British Army forced to rely on foreigners and contractors’, in The Telegraph, 7 June 2012, available at: http://www.telegraph.co.uk/news/uknews/defence/9315166/British-Army-forced-to-rely-on-foreigners-and-contractors.html.