Outsourcing War: The Just War Tradition in the Age of Military Privatization 9781501703577

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Outsourcing War

Outsourcing War

The Just War Tradition in the Age of Military Privatization

Amy E. Eckert

Cornell University Press Ithaca and London

Cornell University Press gratefully acknowledges receipt of a subvention from Metropolitan State University of Denver, which aided in the publication of this book. Copyright © 2016 by Cornell University All rights reserved. Except for brief quotations in a review, this book, or parts thereof, must not be reproduced in any form without permission in writing from the publisher. For information, address Cornell University Press, Sage House, 512 East State Street, Ithaca, New York 14850. First published 2016 by Cornell University Press Printed in the United States of America Eckert, Amy, author. Outsourcing war : the just war tradition in the age of military privatization / Amy E. Eckert. pages cm Includes bibliographical references and index. ISBN 978-0-8014-5420-2 (cloth : alk. paper) 1. Private military companies—Moral and ethical aspects. 2. Private security services—Moral and ethical aspects. 3. Mercenary troops— Moral and ethical aspects. 4. Just war doctrine. 5. Military ethics. 6. War—Moral and ethical aspects. I. Title.  UB149.E25 2016 172'.42-dc23 2015036019 Cornell University Press strives to use environmentally responsible suppliers and materials to the fullest extent possible in the publishing of its books. Such materials include vegetable-based, low-VOC inks and acid-free papers that are recycled, totally chlorine-free, or partly composed of nonwood fibers. For further information, visit our website at www.cornellpress.cornell.edu. Cloth printing

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For Charlotte and Claire Marks

Contents

Acknowledgments

ix

List of Abbreviations

xi

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

1

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

30

3. Jus ad Bellum Principles and Privatized War

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

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

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References

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Index

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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

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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

AGNA APC BRA CPA ECOMOG EO FARC GSG ICI ICRC IMF ISAF ITAR LOAC MPRI

ArmorGroup North America All Peoples Congress (Sierra Leone) Bougainville Revolutionary Army Coalition Provisional Authority Economic Community of West African States Monitoring Group Executive Outcomes Revolutionary Armed Forces of Colombia Gurkha Security Guards International Charter Incorporated of Oregon International Committee of the Red Cross International Monetary Fund International Security Assistance Force International Traffic in Arms Regulations law of armed conflict Military Professional Resources Inc.

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NATO NCACC NGO NPRC PMC POW PSD PSIRA R2P RFMA RUF UN UNITA

Abbreviations

North Atlantic Treaty Organization National Conventional Arms Control Committee non-governmental organization National Provisional Ruling Council (Sierra Leone) private military company prisoner of war Private Security Database Private Security Industry Regulatory Authority responsibility to protect Regulation of Foreign Military Assistance Act Revolutionary United Front (Sierra Leone) United Nations National Union for the Total Independence of Angola

Outsourcing War

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

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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 responsi-

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ble 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 clearcut 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.

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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 per-

The Just War Tradition and the New Market for Private Force

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vasive 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.

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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

The Just War Tradition and the New Market for Private Force

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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.

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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 to the concerns of just war theory. Contractors at any point along the “spear” of combat, combat-related, or support functions can create problems in terms of just war theory. (Even engineers who design weapons systems have obligations to behave justly, though their obligations differ from those of a soldier in the field [Fichtelberg 2006]). Moreover, the strategic realities of contemporary war also bring PMCs and their individual employees within the scope of just war principles. In a war without a discernible vanguard or rear, as in Iraq or Afghanistan, even companies providing logistical support can find themselves embroiled in combat.

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PMCs differ in form from the individual mercenaries that lingered around the margins of armed conflict during the age of the national military. Where Cold War– era mercenaries were individuals who sold their services on an ad hoc and clandestine basis, PMCs advertise their services openly. PMCs are ongoing business concerns and some are even publicly traded, which subjects them to a degree of scrutiny by shareholders. Following the scandal at Abu Ghraib, shareholders in CACI International, Inc. raised objections to the firm’s involvement. California’s public pension fund, the California Public Employees’ Retirement System, was a major shareholder in CACI and, utilizing its shareholder rights, sent CACI a communication that inquired whether the company was aware of the alleged abuse at Abu Ghraib, and, if not, why not? At what point were members of the board of directors made aware of events there? On what basis did CACI’s chief executive Dr. J.P. London conclude that Mr. Stefanowicz [one of the contractors singled out in the Taguba report] had done “a damn fine job,” as he stated in a conference call last month with financial analysts? (quoted in McCarthy 2004)

Such criticism suggests that publicly traded PMCs must answer to their shareholders like any publicly held company, though the matters for which the company must answer may be unique in the corporate world. In the case of a PMC, its actions on the battlefield and in support in combat become open to scrutiny by those with a financial stake in the business entity. PMCs, then, differ from their mercenary predecessors in terms of the services sold and in their status as ongoing economic entities. This new market for force, populated by PMCs, emerged from a specific political and economic context.

Origins of the Current Market for Force Since its emergence following the end of the Cold War, the PMC industry has grown dramatically, both in terms of revenues generated and with respect to the combat-related functions that PMCs have assumed. Two types of needs have fueled this growth. First, some states privatize out of necessity because their national militaries are inadequate to meet the security challenges they face. Papua New Guinea’s decision to hire London-based

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Sandline exemplifies this type of scenario. In 1997, Papua New Guinea’s government was threatened with overthrow by the Bougainville Revolutionary Army (Singer 2003, 177). The national forces were no match for the rebels. Earlier assistance from Australia had dried up due to Australia’s concerns with Papua New Guinea’s human rights record. In the end, the terms of the Sandline deal were so extravagant that they led to the downfall of the administration that signed it, but in this instance a weak state turned to the private market out of necessity. Second, some states privatize out of choice because they perceive military, political, or economic advantages in using PMCs rather than their own national military resources. The PMC option has been utilized broadly for economic or ideological reasons. For states that privatize by choice, the use of PMCs is driven partly by ideological claims that support privatization. Those enthusiastic about market efficiency as an alternative to the state hail the rise of PMCs as an effective solution for states. One such advocate, Bob Mandel, argues that the global spread of free-market values promoting competitive privatization as optimal in all spheres of human activity, supports the notion that security privatization is a progressive step forward, moving beyond the confining and outmoded mantle of the nation-state. (2001, 133)

There is some evidence to suggest that PMCs do in fact deliver services with greater efficiency than states, in part because their contracts are clearly defined and because they eliminate some of the redundancies of the public sector (Coker 1999, 108). Both strong and weak actors turn to the private market to meet their security needs, fueling the growth of the industry. The market for private force includes a range of actors among both producers and consumers of force. In addition to relatively transparent, publicly traded companies, there are smaller and more secretive firms. On the consumer side, states make extensive use of PMCs, but consumers also include transnational corporations and international organizations. The heterogeneous nature of the market defies blanket characterizations and precludes the collection of comprehensive data, but some measures can give us a window into market growth (see Avant 2005b; Mandel 2002; Singer 2003). For the relevance of PMCs to the just war tradition, it suffices to show that the privatization of force is not a

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phenomenon of marginal importance, and that it is a growing aspect of conflict. The reliance of state and nonstate actors on private force represents a change in the structure of armed conflict, and it is a dimension of war that is increasing rather than diminishing. The Private Security Database (PSD) tracks the growing significance of private force in areas of “limited statehood,” or failing states. Included in this category are states with “deficits in the effective control of territory, the monopoly of violence, and the ability of state actors to enforce and implement political decisions.” The PSD, which tracks the involvement of PMCs through the number of aggregated contractual relationships between PMCs and the states that hire them, identified steady growth in the number of tasks undertaken by PMCs in failed states (Database 2010c) and rather sharp growth in the number of companies (Database 2010b). This growth persists in spite of a reduction in the incidence of state failure (Database 2010a). These data focus on public clients (i.e., states) and their consumption of PMC services in the context of state failure, but even this small window into private security consumption suggests continuous growth in the PMC industry. State failure is a significant context in which the need for security services is generated. The consumers of private force also provide a window into the growth of the market for force. As the largest such consumer, the United States’ reliance on PMCs provides telling examples. In the First Gulf War, the ratio of contractors to active duty US military personnel was one to fifty (“Complex Irregular Warfare” 2006, 411). A decade later, in the US-led invasions of Iraq and Afghanistan, PMC personnel outnumbered active duty military personnel. Although the numbers paint a striking picture, the magnitude of PMC involvement in Iraq cannot be measured by numbers alone. While the figures provide some measure of the United States’ private use of force, the range of functions that PMCs perform also speaks to the extensive US reliance on contractors. In Iraq, PMCs performed a wide variety of tasks, from logistics and maintenance to training and security (Spearin 2004, 248–49). Personnel associated with these private firms have also assumed roles associated with the war and reconstruction, blurring the lines between military and nonmilitary actors (Bjork and Jones 2005, 778). The involvement of PMCs in Iraq was striking both in the sheer numbers of PMC personnel and in the significant functions that they perform. It is particularly striking given that the United States is the dominant power in the international system. Iraq, though,

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is not the only conflict in which PMCs have been active, and a focus on Iraq may create a skewed picture of the role that these private actors now play. Some PMCs, notably the now-defunct company Executive Outcomes (EO), choose to limit their clientele to recognized states. Most do not. In one unusual case, a PMC called Evergreen International offered its services to some recent Swarthmore graduates who sought to hire unmanned aerial vehicles—robotic drones—in connection with their efforts to address the genocide in Darfur (Singer 2009, 261–62). Sam Bell, then twenty-two, and two college friends had formed a group called the Genocide Intervention Network. The group raised money to support the beleaguered peacekeeping force stationed in Darfur, ultimately collecting a half-million dollars through donations and events (262). Working out of his dorm room, one of the students contacted a number of PMCs regarding the possibility of renting robotic drones. For various reasons, including the discomfort of some donors with their plan, the group ultimately decided against hiring drones, but the willingness of PMCs to contract with a group of recent college graduates suggests that private force is now available to any entity with the means to pay for it. More typically, the nonstate actors that hire PMCs include rebel movements and international organizations. The involvement of PMCs in the Democratic Republic of Congo illustrates the complex involvement of PMCs in developing states (Singer 2003, 10–11). In the mid-1990s, the besieged government of Mobutu Sese Seko unsuccessfully sought help from Military Professional Resources Inc. (MPRI) and EO. The US government declined to license MPRI’s acceptance of the contract and EO, which was approached by both the Mobutu government and the rebels, states that it viewed both parties as being “politically suspect” (O’Brien 2000, 55). The government was successful in hiring the French PMC Geolink, but its efforts were to no avail. Rebel forces led by Laurent Kabila, assisted by the Bechtel Company (which commissioned and paid for detailed maps that it provided to Kabila’s rebels), successfully toppled Mobutu’s government. Kabila would later hire EO to defend his new government against multiple threats posed by Mobutu loyalists and intervening states (including Rwanda, Uganda, and Zimbabwe), each of which was assisted by PMCs that they themselves had hired. The World Wildlife Fund also received a bid from yet another PMC, Saracen, to defend the endangered white rhino in the war-torn country. This complex web of opposing PMC contractors is in many respects typical of PMC in-

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volvement in the developing world. Many of these tasks would have been carried out by one of the superpowers during the Cold War or by the West in the immediate post– Cold War period. But the end of the Cold War meant that no superpower had an interest in intervening, and Western peacekeeping declined after a flurry of activity immediately after 1989. PMCs have been more than willing to step into this void, sometimes lured by the promise of developing states’ rich stores of natural resources. This leads to a dynamic of “plunder and protection” (Mehlum, Moene, and Torvik 2002). In addition to participating in combat in various capacities, PMCs have also participated in peacekeeping, stepping into the void created by state actors unwilling or unable to contribute their own troops. The United States, UN, and the Economic Community of West African States contracted with International Charter Incorporated of Oregon (ICI) to provide services in connection with regional African peacekeeping operations; PMCs also provided services in connection with operations in East Timor (Bures 2005, 538). PMCs have also contracted with corporations and NGOs. Taken collectively, this wide-ranging clientele suggests that PMCs provide military capabilities both to states of varying capabilities and to nonstate actors. The effect is clear: actors are no longer constrained by a lack of capabilities or a lack of willingness to use the capabilities that they have. Once a sovereign function, force has become, instead, a market commodity. The current reprivatization of force poses some novel theoretical problems for international relations theory and more particularly for just war theory. Earlier eras when private actors played a central role in the use of force were not subject to rules favoring the public control of force. The present market for force faces just this situation. The centrality of the state to international relations theory effectively defines private force out of public view. If the just war tradition is to maintain its relevance and continue to provide a moral basis for the assessment of warfare, it must transcend the public/private divide that obstructs its view of the role that PMCs play in contemporary warfare. Similarly, if PMCs are to be restrained by the just war tradition in the manner that states have been restrained, then accounting for their role within the just war tradition is essential. PMCs may deliver services more efficiently than their counterparts in the public sector, but this efficiency comes at the expense of control, particularly what Deborah Avant (2005b, 6) characterizes as social control. State actors are governed by legal and moral norms in wartime; private actors face

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significantly fewer restraints. Despite the fact that PMCs perform military functions, they remain separate from the military structure. They are, in this respect, no different from other economic entities that may choose to break contracts. The difficulties in exerting control over PMCs are compounded by the transnational nature of the market for force. PMCs can easily move jurisdictions to evade the authority of any particular state and a number— including Blackwater1—have established subsidiaries in several jurisdictions. I suggest that one of the key problems in exerting control over PMCs stems from the fact that the norms we would apply to them are premised on statist assumptions that do not adequately account for the role of private actors in contemporary armed conflict. To make sense of the moral problems posed by PMC involvement in conflict, I begin by delving into a few instances in which states have hired PMCs to perform different types of functions related to security and defense.

PMC Involvement in Combat and Combat Support Sierra Leone Sierra Leone, perhaps “the paradigmatic weak state” (Avant 2005b, 82), turned to the market out of necessity rather than choice. When Captain Valentine Strasser hired EO to help the government battle off rebels who had drawn within twenty kilometers of Freetown, the capital, civil war had already gripped the country for some time. Strasser had seized power from his predecessor, Joseph Momoh, in a coup, but soon faced opposition himself. After unsuccessfully taking other steps to shore up the strength of the national military, including conscription, Strasser turned to the market to fend off the coup attempt (Avant 2005b, 84). Several factors contributed to the seemingly intractable civil conflict between the All Peoples Congress (APC) government and the Revolutionary United Front (RUF), which was supported by Liberian president Charles Taylor and led by his ally, Foday Sankoh. The APC government of Siaka Stevens, Momoh’s predecessor, had intentionally weakened the military, which Stevens perceived as the greatest 1. Despite the name change, the company is still most commonly referred to as Blackwater, so I will identify it by its original name in this book.

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threat to the survival of his regime (Singer 2003, 110). While weakening the military may have diminished the threat of a coup, it also left Sierra Leone ill-equipped to fend off the RUF. The soldiers in the national military had come to be known as “sobels,” reflecting the fact that they were an amalgamation of soldiers and rebels, making them “impartial predators” (Harding 1997, 92). The RUF’s rebellion enjoyed considerable military success under Sankoh’s leadership (Dokubo 2000, 55). By 1994, the RUF had made significant gains against the APC government and its successor regime, the National Provisional Ruling Council (NPRC) government headed by Strasser. The national military’s failures against the RUF prompted Sierra Leone to turn to the private market for help, but EO was not the first firm to accept a contract with the NPRC government. Prior to EO’s involvement in the civil war, Sierra Leone had hired the Gurkha Security Guards (GSG), a Nepalese unit that was integrated into the British military but that operated as “guns for hire” (Francis 1999, 326). In early 1995, GSG sent a force of about sixty-one people to Sierra Leone (Avant 2005b, 84–85). Within days of their arrival, the Gurkhas were ambushed by the RUF and sustained up to twenty casualties (Dokubo 2000, 57). Although GSG sent reinforcements, they would ultimately withdraw from Sierra Leone without enhancing security there (Avant 2005b, 86). Avant attributes GSG’s withdrawal to NPRC dissatisfaction as well as GSG’s refusal to step beyond a training role, a move that could have brought the firm a mercenary reputation that it sought to avoid (85). In April 1995, the Strasser regime hired EO to help it conduct offensive operations against the RUF (Shannon 2002, 35). EO had its roots in the apartheid-era South African military (Shearer 1998, 40). Its employees were members of South Africa’s special forces before they were disbanded following the 1994 multiracial election (41). Despite these origins in South Africa’s white minority government, the majority of EO’s employees were black. EO’s military objectives in Sierra Leone included securing Freetown, regaining control of key resources, destroying RUF headquarters, and clearing out remaining RUF occupation (49). EO quickly achieved its military goals and created an atmosphere of stability that allowed Sierra Leone to hold elections. The national forces “lent only a support role commensurate with their lean capabilities” (Shannon 2002, 36). The government military gains also brought the RUF to the negotiating table. In November 1996 the newly elected civilian government and the RUF signed the Abidjan Peace Accord, an agreement that was conditioned upon EO’s departure from Sierra Leone (Francis 1999, 327).

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The gains were short-lived. In May 1997, a military junta overthrew the new civilian government and promptly aligned itself with the RUF. The ousted civilian government fled to Guinea, where it hired another PMC, Sandline, to lead a countercoup. With considerable continuity in control and personnel, Sandline was “the successor of EO,” created to avoid the latter’s mercenary image (Dokubo 2000, 60). Like EO, Sandline adopted a policy of working only for recognized governments and international organizations (Kinsey 2006, 78). Despite this policy, Sandline’s involvement generated considerable controversy but little tangible benefit to Sierra Leone. In what eventually came to be known as the “Arms to Africa” scandal, Sandline shipped thirty-five tons of Bulgarian arms and ammunition to the exiled government and Economic Community of West African States Monitoring Group (ECOMOG) peacekeepers (Francis 1999, 328). The problem with this shipment was that Sierra Leone was the target of an arms embargo. Christopher Kinsey (2006, 79–80) argues that Sandline’s conduct reflects a belief that it was acting in a manner consistent with the law because it shipped the weapons to Sierra Leone with the knowledge of local authorities. Before the arms or Sandline could arrive, ECOMOG had already overthrown the junta (Kinsey 2006, 78). EO and Sandline are now defunct,2 but PMCs that engage in the use of force on behalf of client states still exist. In Iraq, US officials were heavily dependent on their armed Blackwater Worldwide (renamed Xe, and then Academi) guards who provide their security. Between 2003 and 2008, Blackwater held a total of $1 billion in diplomatic security contracts to guard top US officials, including the head of the Coalition Provisional Authority, in Iraq (Fainaru 2007b); when Iraq briefly banned Blackwater’s operations in 2007, US diplomats were confined to the Green Zone in Baghdad (Kramer 2007). Blackwater gained notoriety when its employees were accused of the unprovoked killing of eight Iraqi civilian noncombatants in the Nisour Square massacre (Tavernise 2007; Tavernise and Glanz 2007). Blackwater employees claimed that they were fired upon first, but other reports did not support this account (Glanz 2007; Glanz and Rubin 2007). A change in the law allowed for PMC employees working for the United States to be tried within the military justice system. As a result, five men were convicted of 2. Although Sandline is no longer in existence, its founder, Colonel Tim Spicer, has a new PMC, Aegis, which is still an ongoing business concern.

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crimes in connection with the Nisour Square shootings. One man, Nicholas Slatten, was said to have fired the first shots and was convicted of murder. Three others were found guilty of manslaughter. A fifth Blackwater employee had plead guilty to manslaughter and cooperated with the prosecutors (Apuzzo 2014). This notorious incident attracted a rare degree of attention to the activities of PMCs and to Blackwater in particular. The aftermath of the Nisour Square massacre revealed the degree to which Blackwater guards in Iraq utilized force in carrying out their duties. A congressional report compiled in the aftermath of these killings found that Blackwater guards had opened fire on at least 195 occasions between 2005 and the February 2007 hearings, firing first in more than 80 percent of those incidents (Reform 2007). These reported incidents of the use of force averaged out to 1.4 per week, but the report’s figures relied only on Blackwater’s own incident reports and may be low. One former Blackwater guard claimed that his twentyperson team was involved in “four or five” shootings per week (Fainaru 2007a), several times the average of 1.4 reported incidents. The shooting in Nisour Square was not the only incident in Iraq that drew Blackwater into the public eye. In an incident suggestive of the dangers that PMC personnel can face in the course of their work, Blackwater had gained public attention when four of its contractors were killed in a gruesome ambush in Fallujah (Barstow 2004). In an attack reportedly planned in advance, the four Blackwater employees were shot and killed by Iraqi insurgents. After the insurgents fled the area, an angry mob burned the contractors’ bodies and hung them from a bridge (Chan 2004). While the use of PMCs typically minimizes the involvement of the state, in this instance the killings of the Blackwater personnel drew the US military into a more extensive campaign in Fallujah. In Iraq and elsewhere, PMCs that carry out these “tip of the spear” functions are performing functions and bearing risks that are similar to the functions performed by their counterparts in national militaries.

Afghanistan The US-led war effort in Afghanistan represents (to date) the high-water mark of US reliance on PMCs (Schwartz 2010). The United States is the largest consumer of private force in the world, and the war in Afghanistan

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represents its most extensive use of PMC personnel, making Afghanistan perhaps the most privatized war in this new market for force. Table 1 tracks PMC personnel as a percentage of the total US contingent in Afghanistan. These figures do not include PMCs contracted by other government agencies, including the State Department, which used PMCs to provide security for embassies and for personnel. In addition, other contingents to the North Atlantic Treaty Organization (NATO)’s International Security Assistance Force (ISAF) have also hired PMCs, but figures are not available. In terms Table 1. Levels of privatization in Afghanistan

Date

August 2008 November 2008 February 2009 May 2009 August 2009 November 2009 February 2010 May 2010 September 2010 December 2010 January 2011 April 2011 July 2011 October 2011 January 2012 April 2012 July 2012 October 2012 January 2013 April 2013 July 2013 October 2013

Number of Department of Defense contractors

Total US troops

Contractors as a percentage of the total US force (%)

41,232 68,252 71,755 68,197 73,968 104,101 107,292 112,092 107,479 70,599 87,483 90,339 93,118 101,789 113,491 117,227 113,736 109,564 110,404 107,796 101,855 85,528

34,000 34,000 37,000 43,180 62,000 68,000 73,400 94,000 100,000 100,000 100,000 100,000 99,000 97,000 89,000 87,000 84,000 68,000 66,000 66,000 63,000 54,000

55 67 65 61 54 60 59 62 52 41 46 47 48 51 56 57 58 62 63 62 62 61

Sources: Figures on the number of contractors are derived from the US Central Command quarterly census, available at http://www.acq.osd.mil / log/ PS/CENTCOM _reports.html. Figures on the US troop commitments are from the Brookings Institution’s Afghanistan Index, available at http://www.brookings.edu /about /programs/foreign-policy/afghanistan-index.

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of PMC personnel as a proportion of the US contingent, levels of privatization remained high over the period of time for which data on PMCs are available. While PMCs as a percentage of the total US force dipped below 50 percent for a time in late 2010 through the middle of 2011, overall the figures remained high and reached a peak of 67 percent in November 2008 when two out of every three individuals acting on behalf of the United States in Afghanistan were private contractors. These figures include more than just contractors engaged in the use of force; PMC personnel in Afghanistan performed many functions. The information released by the US Central Command about the role of contractors suggests that roughly a third of contractors, on average, were engaged in logistical support or maintenance. Other functions included transportation, base support, construction, and management. Others were engaged in training and in security functions. A force of this size, predictably, generated significant attention. One notable source of controversy was misconduct by the PMC ArmorGroup North America (AGNA), which resulted in a fine of $7.5 million. The US Department of Justice imposed this fine as a result of allegations that AGNA employees visited Kabul brothels with the knowledge of AGNA management, conduct that violated the Trafficking Victims Protection Act. Additionally, AGNA was found to have misrepresented the work experience of guards it had hired (Justice 2011). An independent government watchdog group uncovered that AGNA was engaged in hazing behavior. The Project on Government Oversight had received reports from embassy guards employed by AGNA that “supervisors held near-weekly parties in which they urinated on themselves and others, drank vodka poured off each other’s exposed buttocks, fondled and kissed one another and gallivanted around virtually nude” (Tyson 2009). Following its own investigation, the State Department, which had hired AGNA to provide embassy security, demanded the replacement of its management team (Sheridan 2009). The State Department ultimately did not renew AGNA’s contract in Afghanistan. PMC behavior with respect to civilians also contributed to the controversy surrounding their presence in Afghanistan. Contractor Don Ayala, employed by BAE Systems, was charged with murder in US federal court for shooting a handcuffed Afghani civilian who had severely burned a member of the human terrain team of which Ayala was a part (Sheridan 2009). Human terrain teams include social scientists who gather information on the local

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population for the military command, underscoring the potential of PMC personnel removed from combat to create issues with respect to the just conduct of war. Ayala would eventually be sentenced to five years’ probation for the shooting (White 2009). On a more regular basis, PMCs protecting convoys would frequently fire into villages that they passed (Schwartz 2010). In response to these issues, the Afghan government attempted to rein in PMCs by introducing a licensing system. The hope was that illegal armed groups might be deterred from activities like trafficking in weapons or drugs. This attempt at regulation generated allegations that the licenses were distributed according to political interests. The distribution of licenses to those with ties to the Kabul government seems to support these claims, though many PMCs that did not receive licenses failed to submit timely applications. This system of regulation has not precluded the use of unlicensed firms by members of the ISAF coalition. Afghanistan had been a weak state well before the US-led invasion (Rubin 2002), and so the large PMC contingent posed some special challenges. First, the weakness of the central state in Afghanistan created a long history of nonstate actors engaging in the use of force, amplifying confusion about the role of private force in the US-led war effort. Those who experienced the US-led invasion in Afghanistan were largely, perhaps completely, unfamiliar with the Westphalian model of a strong state with a monopoly over the use of force within its territory. They were, on the contrary, quite well prepared for a scenario in which a wide variety of actors with indistinct relationships to one another and to the state were engaged in violence. To the extent that Afghans do not distinguish between PMCs hired by the United States and US forces, the behavior of PMC personnel undermines US counterinsurgency efforts. As Human Rights Watch reports, Afghans often cannot be sure whether the people they described were common criminal or insurgent groups, official or unofficial arbaki [tribal militias], employees of private security companies, members of the [Afghan local police], or members of other official or unofficial armed groups. (Reid et al. 2011, 13)

Because the United States and its NATO allies defined success in Afghanistan as the government enjoying the support of its own people, abusive be-

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havior that is attributable to the United States or to the Afghan government undermines rather than supports the effectiveness of those efforts. Second, the overwhelming contingent of PMCs posed an additional challenge to the Afghan state by empowering rivals to state power and authority at the expense of the central government. The monopoly over the legitimate use of force that the state has purportedly enjoyed over the past two centuries includes a dimension of formal authority and also the capability to exclude nonstate actors. Because of the rise of PMCs the state’s authority over the legitimate use of force is no longer exclusive, a claim I develop in chapter 3. The extensive presence of PMCs in Afghanistan also threatens the state because of its weakness. In this instance, PMCs are better paid and better equipped than their state counterparts in the Afghani police and military. Reliance on private force can seem to empower elements outside the Afghan state at the expense of the state.

PMC Involvement in Training MPRI has marketed itself as a PMC with a strong US military identity, boasting a large number of retired US military personnel (Shearer 1998, 56). MPRI performed some functions in connection with the Dayton Accords, including modernizing the Croatian army (Brayton 2002, 315–16). Croatia had declared independence from Yugoslavia in 1991, touching off a war. The Croatian military, presided over by a fragmented Croatian state, was easily defeated by the Serb military (Avant 2005b, 99). Efforts to improve the Croatian military failed, leaving it “poorly disciplined and poorly supplied” (101). Croatia turned to MPRI, which had previously been contracted by the United States to monitor the UN sanctions regime against Serbia (Singer 2003, 125). Croatia signed MPRI to two contracts. One of these contracts provided for MPRI to provide Croatia’s Ministry of Defense with “strategic long-term capabilities,” while the second provided for MPRI to design a Democracy Transition Assistance Program (125–26). Ostensibly hired in 1994 to provide classroom instruction to help Croatia’s Warsaw Pact–style military Westernize in preparation for NATO membership, MPRI provided fourteen weeks of training, including courses on physical training, logistics, leadership, and military management (Avant 2005b, 102).

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Many suspect that MPRI’s involvement with the Croatian military has been significantly more extensive. MPRI is widely suspected of planning Croatia’s Operation Storm, a campaign shortly after MPRI’s arrival that drove the Serbs out of Krajina. While the campaign achieved its military objective, Operation Storm also violated the UN cease-fire, drove 170,000 from their homes, and prompted allegations of serious human rights violations (Singer 2003, 126). The Croatian commanders were subsequently indicted for war crimes (126). Firsthand accounts of the planning for this operation feed the rumors of MPRI’s having planned the attack (Avant 2005b, 103). Some even suggest that MPRI personnel accompanied Croatian forces onto the battlefield (Percy 2007b). Croatia recaptured the region in less than a week after Serb defenses collapsed (Shearer 1998, 58). The campaign “bore all the hallmarks of an American-style” operation (Coker 1999, 107). Singer notes that “the dramatic overall improvement in Croat strategic and tactical skills . . . is difficult to ignore” (2003, 126). Despite the suspicious circumstances of the timing and form of Operation Storm, MPRI has steadily disclaimed any role in planning the campaign. Still, the belief that MPRI was behind this operation enhanced its standing among its competitors (Shearer 1998, 59). The Croatian government likewise denies any MPRI involvement beyond the classroom (Avant 2005b, 104). In Stephen Brayton’s estimation, MPRI “delivered a less expensive and less politically risky American foreign policy victory than would have been possible had US troops been used” (2002, 311). The UN arms embargo would have made official US involvement difficult but “a private contract between the Croatian government and MPRI allowed US expertise to flow to Croatia without direct US government involvement” (Avant 2005b, 104). The use of MPRI also allowed the United States to maintain official neutrality while still supporting its allies in the former Yugoslavia (Maogoto 2006, 153).

PMC Involvement in Logistical Support Still further removed from combat, most PMCs provide logistical support to state militaries. PMCs that take on such functions in many cases serve as the privatized “tail” that facilitates the maintenance of the national military’s “tooth.” The United Kingdom was an early leader, due partly to International Monetary Fund (IMF) demands and partly to the ideology of the conserva-

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tive Thatcher government (Edmonds 1999, 121). The British contingent to the First Gulf War included private contractors who helped to prepare and maintain equipment for the military (126). In another example, the US government has contracted with DynCorp, a company that was also part of operations in the former Yugoslavia along with MPRI, to support African Union peacekeepers in the troubled region of Darfur in Western Sudan. The conflict in Darfur began as a political struggle over the disenfranchisement of the Fur population. The rebel movement initially enjoyed some striking military successes against government forces, most notably an April 25, 2003, attack on the air base at Fasher that destroyed bombers and gunships and killed at least seventy-five government troops (Flint and de Waal 2005, 99). After this attack, government forces and their Janjaweed allies changed tactics, targeting civilians rather than rebel military targets. The majority of government/Janjaweed attacks have been directed against villages without a rebel presence (Straus 2005, 127). Taking together the effects of violence and starvation, Jan Egeland, the head of the UN’s Office for the Coordination of Humanitarian Affairs, estimated that ten thousand people were dying each month in the middle of the decade (Flint and de Waal 2005, 112). A UN force for Sudan was finally created by Security Council Resolution 1769 in August 2007, a move that Sudan finally agreed to accept (Sullivan 2007). The United States hired DynCorp to support peacekeepers in Sudan under a contract that includes various types of logistical support including “housing, office equipment, transport, and communications gear” (Chatterjee 2004). The use of contractors carries another advantage. Chatterjee quotes an anonymous US State Department official as saying, Why are we using private contractors to do peace negotiations in Sudan? The answer is simple. . . . We are not allowed to fund a political party or agenda under United States law, so by using private contractors, we can get around those provisions. Think of this as somewhere between a covert program run by the CIA and an overt program run by the United States Agency for International Development. It is a way to avoid oversight by Congress. (2004, n.p.)

The ability to avoid public or legislative scrutiny is an additional advantage of using private forces. The value of the Darfur contract did not meet the threshold amount of $50 million that would require congressional approval

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(Sheehy, Maogoto, and Newell 2009, 100), and so the decision to hire PMCs to support peacekeepers in Darfur fell outside of legislative scrutiny. Beyond this contract for logistical support, DynCorp also claims that it has been hired to train one of the rebel groups fighting the Sudan People’s Liberation Army (“Around the Globe” 2006), a claim denied by the Darfur rebel group (Reports 2006). DynCorp’s Sudan contract does not entail actual combat but extends well beyond the type of support functions usually undertaken by PMCs. These examples convey the range of activities that PMCs carry out on behalf of those who hire them and also suggest the types of ethical issues that PMC involvement can raise. Distinctions among these categories may collapse, particularly in conflicts that lack a discernible vanguard or rear such as the war in Iraq. In a conflict that lacks a distinct front line, a PMC employee performing logistical or transportation functions can quickly become embroiled in combat, as the ambush of Blackwater employees in Fallujah illustrates. Nevertheless, this typology remains helpful for evaluating the issues that PMCs pose for just war theory. Different types of PMC involvement in conflict raise different issues with respect to ethics and war. I return to these issues later in the book.

Justice and War These new political realities complicate moral reasoning about war because they chip away at key assumptions that underlie the principles of the just war tradition. The just war tradition dates back thousands of years, predating the rise of national military systems by several centuries. It contains principles that seek to limit the legitimate resort to force, to impose limits on the conduct of war, and crucially, to provide a moral basis for assessing a war’s justness. Jus ad bellum norms3 limit a state’s right to resort to war by requiring that the decision to use force satisfy certain criteria, which I con-

3. Jus ad bellum norms apply to the decision to wage war. They include considerations such as whether the war is undertaken by an entity with the authority to do so and whether the cause of the war is just. There are also ancillary jus ad bellum principles that incorporate considerations such as the balance of good and evil effects and whether the use of force was the last resort for achieving the just cause.

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sider in chapter 3. These norms require that a just decision to wage war be taken by a legitimate authority, in pursuit of a just cause. Additionally, the use of force must be a last resort for the pursuit of that just cause after other reasonable alternatives have been exhausted. The use of force must stand a reasonable chance of success, and its goal must be the reestablishment of a just peace. These criteria, taken collectively, are aimed at restricting war waged in the absence of just cause or when using force would cause needless destruction without any realistic hope of achieving that cause. The principles reflect the prevailing structures of authority. Since the emergence of the Westphalian state system and the national military, through to the rise of the present market for private force, the political entity with authority over the use of force has been the state. The reemergence of private force has broken the state’s monopoly. PMCs are not the only nonstate actors to be engaged in the use of force, but they are the only actors to do so with the consent of states that license and consume the force sold by PMCs. The breaking of this monopoly has a transformative effect on the principle of legitimate authority, which heretofore has treated any use of force by a nonstate actor as inherently unjust. The commodification of force also complicates the application of other jus ad bellum norms. The fluidity of private force makes assessing the chance of success significantly more complicated. A state (or nonstate entity) is no longer limited to the use of its own capabilities, but can acquire additional military force with the stroke of a pen. Likewise, the opacity of much of the PMC market obstructs effective consideration of proportionality, as official casualty figures are often limited to injuries and deaths among the national military. This was certainly the case in the US-led invasion of Iraq. The Pentagon’s casualty figures did not include the PMC employees who composed (at times) more than half of the US force. In this instance, incomplete figures on PMC casualties were kept by the Department of Labor, making anything like an effective assessment of war’s cost considerably more difficult. I argue that an effective approach to privatization, which serves the purpose of jus ad bellum principles in limiting the unjust use of force, requires a bridging of the public/private divide and attributes the effects of PMC actions to the actors who have employed them. Additionally, the more fluid nature of conflict requires that compliance with at least some of these principles (such as the reasonable chance of success) be assessed on an ongoing basis rather than as a once-and-for-all determination at the outset of a conflict.

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The challenges of privatization also extend to the jus in bello norms4 that restrict the conduct of war so as to limit its worst effects. These norms attempt to limit the most extreme horrors of war, particularly for the most vulnerable, such as noncombatants and combatants who have been captured by the opposing side. Underlying jus in bello norms are assumptions of a divide between combatants and civilians and of an integrated, hierarchical military force. PMCs do not fit either of these assumptions. They are composed of individuals who are formally civilians but perform a broad range of military activities. Although some support functions may seem only indirectly related to military purposes, they are functions that the military once performed for itself. Additionally, PMCs may be working side by side with members of the national military, but they are not part of the chain of command. PMCs are private entities, composed of civilians, and lie outside of the military hierarchy. Nothing prevents them from walking off the job if a contract becomes unprofitable or overly dangerous. As with the jus ad bellum principles, jus in bello norms require some revision to adapt to these challenges. Despite the formal status of PMCs as civilian entities, their performance of military tasks dictates treatment of PMC personnel on par with their military counterparts. This means holding them responsible for violations of jus in bello norms, though in some circumstances the entity that hires the PMCs may also be responsible for those violations that are foreseeable. In Terry Nardin’s formulation, “Ethical traditions are traditions of arguments, not uniform and unchanging doctrines” (1992, 1). In this understanding, traditions are moral frameworks that speak to a range of possible issues rather than a system of fixed and unchanging rules. Traditions involve the application of principles to particular problems within specific factual contexts, and the evolution of those principles in light of the circumstances to which they are applied (3). The just war tradition is an evolving tradition of reasoning about the justice of war. The emergence of the state system and a state monopoly on legitimate political violence exerted significant influence on the direction of the just war tradition. That tradition is not inherently statist, as evidenced by its robust life in the pre-Westphalian era. Nevertheless, the state’s emergence as the key moral actor in the international system means 4. Jus in bello norms assess the conduct of war. Even supposing that the decision to wage war was just, the destruction should be proportional to the ends achieved and belligerents should avoid harm to protected populations such as non-combatants.

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that the current form of these principles has become intimately connected to the state form. Many of the military functions that were once performed exclusively by national militaries are now performed by PMCs hired by the state. These PMCs, whether or not they are engaged in the use of force, contribute to the war effort in ways that the contemporary statist formulation of the just war tradition cannot address. It is the central claim of this book that the just war tradition is not inherently tied to the state. While just war principles in their present form rest on statist assumptions, these principles can be adapted to provide moral guidance on privatized wars. The obstacle to be overcome is the public/private divide that runs through the international system, consigning states and their militaries to the public sphere and PMCs to the relatively murky private sphere. Though both entities now perform similar functions with respect to combat, the actions of PMCs are relatively unknown when compared to their counterparts in national militaries. This relative obscurity frustrates the application of normative principles to PMC conduct and to the implications that their participation in war has for states.

Structure of the Book To develop my argument about the relevance of just war theory to privatized war, I begin in chapter 2 with a consideration of the just war tradition’s connection to the state system. I trace the development of just war theory from ancient times, through the medieval period, and into the interstate system. In particular, my account considers the effect of political developments on the development of just war theory. More specifically, I consider just war theory principles regulating the commencement of war (jus ad bellum) and its conduct (jus in bello). While contemporary versions of just war theory rely extensively on statist conceptions of the world order, its principles predate this order, sundering any necessary connection between the two. This statist characterization of the international order leaves little room for other actors that might also figure into that order. PMCs are now a key component of the international order, and while a persuasive case can be made that the state is still the most important actor in the international system, private actors increasingly shape the ethical decisions made by states. Even if the state remains the dominant actor, its extensive reliance on PMCs changes the context in

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which states operate in ways that matter for just war theory. Subsequent chapters take up the question of how PMCs alter the context within which principles of the just war tradition apply and, in some cases, require a reformulation of the principles themselves. After putting the evolution of the just war tradition into political context, I turn to the principles themselves and consider how they can apply to this changing international system. The just war tradition includes jus ad bellum criteria for evaluating the decision to go to war. Chapter 3 considers how private military corporations might skew the application of those principles, particularly with respect to proportionality and reasonable chance of success. Proportionality requires that the good achieved be roughly equivalent to the costs of the war. The extensive use of PMCs, who operate largely out of public view, makes the proportionality of a conflict difficult to assess. I use the cases of Iraq and Afghanistan, in which the United States relied extensively on civilian contractors, to explore the way in which the privatization of force can affect the application of jus ad bellum principles. Jus ad bellum principles generally require that a state commencing a war have a reasonable belief that it will be successful. The prospects of success may likewise be more difficult to assess if a state has not only its own forces at its disposal but also the ability to hire PMCs. The influence of PMCs on decisions to wage war should not be underestimated. However, the state ultimately makes the decision to wage war (and the decision to outsource). Nonetheless, our understanding of the state’s role must incorporate an acknowledgment of the growing role of PMCs. For purposes of evaluating a state’s compliance with jus ad bellum rules, I argue that the activities of PMCs acting on behalf of the state should be considered as part of the state’s own actions. In other circumstances, though, it makes more sense to hold PMCs responsible for their own actions, particularly when assessing the actual conduct of war. Chapter 4 considers the normative problems posed by PMCs for jus in bello restrictions on the conduct of war. The independence of private military corporations from state control poses problems in the application of such principles both in legal and in moral terms. PMCs defy key assumptions of jus in bello norms, including the presence of a hierarchical military structure and the existence of a sharp divide between the civilian and military spheres. Private actors do not fit neatly into the framework of these jus in bello rules. To the extent that PMCs are performing activities previously carried out only by states, it is appropriate to hold them to the same moral

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standards, even if the legal recognition has yet to materialize. Recognizing the responsibility of PMCs and their individual personnel does not preclude holding state actors responsible where they also bear responsibility for violations. On the contrary, a system of shared responsibility may exist: PMC personnel, the states who engage their services, and the PMCs themselves may all be guilty of violations, in some cases simultaneously. My concluding chapter presents answers to questions about how to apply the principles of just war theory to contemporary conflicts in which PMCs figure significantly. It is a central claim of this book that even with the changes within the international system, principles of just war theory can still apply. The rise of private actors complicates the context within which the state operates, but the international system is still fundamentally statist in its political culture. This political culture endows the state with a legitimacy lacking in competing actors, including PMCs. However, the application of just war principles to state action is newly complicated. This conclusion reconsiders the public/private divide in the international system in light of these transformations within the international system and proposes how just war theory can be applied to these new realities. The rise of PMCs, while significant in its own right, raises important questions about the private sphere and its implications for international ethics. I argue that the just war tradition, which has long sought to moderate the worst horrors of war, can evolve to take account of these new developments in much the same way that it has evolved to reflect previous system transformations. The reprivatization of force is reversing many of the developments associated with the rise of the Westphalian state system and the state’s consolidation of control over the use of political violence. In its current state-centric form, just war theory is illequipped to take account of these changes. But the just war tradition changed with the rise of the state system, and it can evolve to take adequate account of these new changes within the state system. If it is to continue to provide moral guidance with respect to the waging of war, evolution is essential. Key will be learning to look across the public/private divide to take account of the activities of private actors that bear on the application of these public ethical principles. I seek to make sense of these changes in the state system, the implications of those changes for just war theory, and the steps that just war theory can take to speak to new developments.

Chapter 2

The State System and the Evolution of the Just War Tradition

The tradition of moral reasoning about war precedes the development of the state system by many centuries.1 All major civilizations, including China, ancient Egypt, and the Aztec empire, developed some version of just war principles to address the questions of when and how war should be conducted (Orend 2006, 9). Aristotle is credited with first using the term “just war,” arguing in The Politics that wars against those peoples who were meant to be governed by others were “by nature just” (Aristotle 1984, 45). Since Aristotle’s time, a number of developments, both political and theoretical, have driven the growth of the just war tradition. Because the rules and norms of the international system shape the practice of war, the just war tradition reflects these norms. The central concerns of the

1. Private actors have also been part of this long dialogue about justice and war. As Peter Singer (2003) notes, the earliest records of warfare reflect the use of hired fighters. The view of war as “engaged in by public militaries, fighting for the common cause” (20) is an idealization that does not reflect the historical record.

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just war tradition and even the content of particular principles have been influenced by changes in the rules and actors that characterize the international system. This is how the just war tradition, which reflects the state’s having become the prevailing pattern of political authority, came to be oriented around the state (Lang 2009, 48). In this chapter, I focus on the influence of political developments, particularly the rise of the state and the state’s consolidation of a monopoly over the legitimate use of violence, over the evolution of the just war tradition. The consolidation of authority under the auspices of the state and the emergence of the state system of equal sovereigns differed in crucial respects from the feudalism that it replaced. These differences influenced the central concerns of the just war tradition at different points in time and shaped the content of jus ad bellum and jus in bello norms, which also draw on the prevailing norms of the international system. The emergence of the state system was a transformative event in the development of the just war tradition and particularly in the contemporary iteration of its principles. Now, the international system is again being transformed by the reversal of some of these earlier developments, particularly the erosion of the state’s monopoly over the use of force. The reemergence of private actors, particularly PMCs, represents the most significant change within the international system since the rise of the state. The state now operates within a context that has been significantly altered by private actors whose behavior bears on the application of moral principles to state behavior. In particular, the principles of the just war tradition cannot be applied to the state alone if they are to provide a meaningful picture of a war’s justness. These transformations within the international system, especially the reprivatization of force, have had a significant effect on the manner in which wars are fought. They will also have an effect on the development of the just war tradition that will be as significant as the transformations that occurred with the rise of the state and the development of the state system. This chapter discusses the just war tradition’s development and the context of the evolution of the state system and the changing role of private force. To best track the effect of the state system’s emergence on the just war tradition, my account picks up in the period immediately before the state began to displace other forms of political organization. I begin with a consideration of the state of the just war tradition in the Middle Ages, immediately prior to the emergence of the Westphalian state system. In this prestate era, the problem of multiple competing and overlapping entities with

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authority over war meant that the tradition became centered on difficult jus ad bellum questions, particularly the issues of right authority and just cause. I then turn to the transformations that occurred within the political system and the just war tradition after the state’s consolidation of its authority and its eventual acquisition of a monopoly over force. With the emergence of the state system, the consolidation of the state’s authority, and the rise of the principle of sovereign equality, jus ad bellum questions became less significant compared to the jus in bello principles that apply to the conduct of war. These principles only really became significant to the just war tradition within the context of the state system. Prior to the seventeenth century, the application of jus in bello norms was contingent upon jus ad bellum questions. As Gregory Reichberg observes, at that time “concerns that now go under the heading of jus in bello were in fact treated largely as an extension of the jus ad bellum” (2008, 193), meaning that only those fighting for a just cause possessed jus in bello rights. While jus in bello norms existed, they were secondary to jus ad bellum concerns until the rise of the state as the dominant form of political authority. Because jus in bello norms developed as independent concerns within the Westphalian state system, they assume as background conditions the existence of a state and a national military. The assumptions that underlie these norms reflect the state’s dominant position with respect to the use of force and its effective exclusion of private actors, reflecting the Westphalian model in which war is a state enterprise. This chapter concludes with a look at the current transformations within the state system that undermine the assumptions coming out of the Westphalian state system. The rise of the PMC industry means that the state’s monopoly over the legitimate use of force is beginning to erode. With respect to a number of issues, including the use of force, other actors now perform functions that were once the exclusive domain of sovereign states. This postinternational context will require a reformulation of those principles to reflect the new realities of war fighting.

The Just War Tradition in the Middle Ages During the Middle Ages, the central questions posed by the just war tradition naturally reflected the key features of the political context. The most sig-

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nificant attribute of this political context was the existence of competing political entities, both ecclesiastical and secular. The fall of the Roman empire created a political vacuum in Europe that no single actor was capable of filling. Instead, several competing authorities strove to fill this void, including the Catholic Church, the Holy Roman Empire, and a complex system of rival secular authorities within the feudal political system. These diverse authority systems pulled Europe in opposing directions. Yet, because these entities made claims to different types and degrees of authority, these distinct systems of authority could coexist in relative comfort (Sassen 2006, 32–33). The Catholic Church was a centralizing force within Europe, attempting to unite the remains of the Roman empire under the mantle of Christianity. Because the community of the faithful had no geographical limitation, the Church claimed boundless authority; a universal religion formed the basis for a universal political order. The Holy Roman Empire, which derived its authority from the Church, likewise claimed dominion over all Christian believers, prompting Holy Roman Emperor Frederick II to claim that he was “lord of the world” (Spruyt 1994, 35). The authority that the Holy Roman Empire claimed was somewhat more temporal than that sought by the Church, but both institutions aspired to universal authority. Against the centralizing forces of the Church and the Holy Roman Empire, the secular system of authority within the feudal system exerted a disintegrating influence within Europe. The feudal political system was, in many respects, the polar opposite of the system of sovereign states that would eventually replace it. The feudal system organized authority in terms of personal relationships rather than territory, meaning that a particular territory or individual might be subject to the control of several different authorities (Spruyt 1994, 38–39). While the feudal system allocated authority over territory, this authority was not exclusive. In contrast to the state system, in which one political authority claims supreme authority within a piece of territory, the medieval political system was a tangled “patchwork of overlapping and incomplete rights of government” (Strayer and Munro 1959, 115). This system of political organization sometimes created absurd results, as illustrated by the relationship of belligerents in the Hundred Years War: One belligerent, the king of England, was technically a vassal of the king of France because of the former’s hereditary lordship of the French territory of

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Individuals derived power from the obligations that others owed to them and, in turn, they owed obligations to others who were higher in the hierarchy. Even in the case of manorial relationships, which were partially defined by one’s residence within a particular lord’s holdings, that lord’s holdings were in turn ultimately determined by his location within this chain of personal obligation (Spruyt 1994, 38). The plurality of competing authorities within this system meant that individuals could be accountable to multiple religious and secular authorities simultaneously, with none of these actors having a definitive claim to final authority either over those individuals or the territory that they inhabited. Beyond these competing authority claims, individuals also retained some right to use force. The right of private war, or “violent self-help,” traced its origins back to the ancient practice of feuding (Kaeuper 1988, 226–27). During the Middle Ages, the right to private war derived from chivalric codes that applied to the knightly classes. Richard W. Kaeuper notes that while the chivalric code could serve to restrain violence among its adherents, “concern for honour could lead proud men to warfare on any scale they could manage, from duel or judicial combat to private wars involving veritable armies” (188). This right to private war was proclaimed as a right by those who held it. In practice, the right of private war was often asserted to legitimize horrific abuses. These abuses, though condemned, also went unpunished (185). One noble who was punished, Jourdain de l’Isle Jourdain, asserted this right of private war in defense of a number of offenses, including the killing of noncombatants and the robbing of churches, but he asserted that his men had committed these actions as part of the war effort and that “he had done it in his pays” (226). In part because of this sort of abuse, the private right of war received little support from theorists and canon lawyers, many of whom would only support as lawful wars that were waged subject to the authority of a recognized sovereign (228). The monarchies in France and England adopted policies intended to eradicate private war. Despite this preference for the authority of the king and the monarchy’s attempts to displace the use of violence by feudal lords, the right of private war persisted for some time and would ultimately disappear only with the end of the Middle Ages and the

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emergence of new norms of sovereignty under which the king’s sovereignty came to include “responsibility for public order” (231). While feudal lords retained their own sovereign rights, the complex system of multiple obligations persisted, complicating the issue of authority and war. These multiple obligations could potentially come into conflict. This plurality of actors and obligations within the feudal system meant that rulers often had limited resources with which to wage war. In order to wage war within the feudal system, rulers had to piece together a coalition of individuals willing and able to support the war effort by pledging those at their disposal to fight. If these resources were not sufficient for waging war, rulers turned to the market. Distinctions between mercenaries and troops who were part of the feudal chain of command were unclear. Sarah Percy argues that there is no clean break between a feudal system in which obligation was the main way to obtain troops and a monetary system in which remuneration secured solders, with the result that it is extremely difficult to tell whether soldiers were serving out of obligation, for pay, or both. (2007b, 70)

Rulers within this feudal system necessarily relied on the mercenaries that they hired on the market, because otherwise they “were beholden to their own lieges for troops, despite the fact that their lieges were often the very opponents that they needed to put down” (Singer 2003, 22). Even for campaigns that were directed against external threats, knights served only forty days a year, a reality that frustrated longer military campaigns (Percy 2007b, 70). Because of these limitations, monarchs who sought to wage war during the Middle Ages had no alternative but to rely heavily on mercenaries (Thomson 1994, 27). While these private soldiers helped rulers to circumvent the limitations of the feudal political system, they also met strategic needs by filling a vital military niche. Weapons like the crossbow were considered ungentlemanly, but were also too complex to be operated by peasants who lacked the necessary training (Singer 2003, 22). These political and military demands contributed to a thriving market in private force. Over time, this market would expand to include competing companies with different specializations (Singer 2003, 28). In a sense, these companies sought to “brand” themselves much as contemporary PMCs might do. The Swiss, for example, were known for their expertise as pike men while the Scots and Gascons were known for their infantry skills (28). Each of

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the mercenary companies had its particular specialty. Despite the attractions of private force, relying on this market for the provision of force also carried certain risks. Machiavelli (2003, 41) raised two diametrically opposed concerns about mercenaries: either they would be incompetent, or that they would be so capable that they would overpower the monarchs who hired them. While this latter fear may seem extreme, it was not without justification. Unemployed mercenaries extorted protection money from Italian cities during lulls in the Thirty Years War (Percy 2007b, 75). France was similarly plagued by Free Companies, who at one point controlled large parts of central and eastern France (81). In the fourteenth century, after it turned on the duke of Athens, the Grand Catalan Company actually established a “duchy of mercenaries” that survived for sixty-three years (Thomson 1994, 28). Despite the risks, the benefits of using mercenaries enticed rulers and the demands for mercenaries’ services sustained a thriving European market for force even into the early stages of the Westphalian era.

Jus ad Bellum Norms: Just Cause and Right Authority The complexities of this decentralized political system shaped the direction of the just war tradition during the Middle Ages. The preoccupations of this era, prompted by multiple competing authorities, were jus ad bellum concerns about right authority to declare war and the question of what constituted just cause to wage war. For just war theorists during this time, the existence of multiple and competing political authorities, both religious and secular, posed complex questions about which entity had authority to declare war. Multiple authorities within the feudal system all claimed for themselves the authority to declare war. Furthermore, because the feudal system was not the only system of authority, the pope and the Holy Roman Emperor also claimed the authority to declare war. Competing conceptions of just cause mirrored the complex system of secular and religious authority. The body of just war thought, including canon law and scholasticism, would share this preoccupation with jus ad bellum at the expense of jus in bello, which it would touch on “tentatively, and only in certain respects” (Johnson 1981, 123). The vast majority of just war thought was, during this time, focused on these complex jus ad bellum questions. Relative to these important questions about the initiation of war, efforts to limit the conduct of

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war received little attention at this point in the evolution of the just war tradition. Moreover, just cause was seen as absolute, facilitating the view that the goal of achieving this cause could not be subject to any restriction. The complex system of political authority also fueled development of answers to these questions. Pope Gregory VII rejected secular authority over the Church (Sassen 2006, 46). As a part of this rejection, Gregory VII made a push to formalize canon law (Bellamy 2006, 31). The most significant component of this formalization, at least with respect to just war thought, was Gratian’s Decretum, which was written around 1140 (33). In the Decretum, Gratian focused on four key questions with respect to war: first, is war ever justified?; second, what is the nature of a just war?; third, who possesses right authority?; and finally, what is just conduct in war? Based on his reading of scripture, Gratian argued that war and killing were not uniformly forbidden, though he did place restrictions on individual participation in war. In terms of the nature of a just war, Gratian argued that war was only just when it furthered peace. Just cause for war was limited to recovery of stolen property, vengeance for injuries, and self-defense. Gratian followed Augustine in declaring that only wars ordered by a legitimate authority could be just, but he was understandably vague on the point of who possessed that authority. Gratian’s account of legitimate authority suggests that kings, princes, barons, and even vassals could potentially make a legitimate declaration of war, in addition to the pope in his capacity as God’s representative on earth (33). This diffusion of authority to declare war across so many different actors is understandable in light of the political circumstances of the time in which Gratian wrote. During the Middle Ages, each of these authorities could make a plausible claim to some degree of authority over the declaration of war. Gratian’s response to the question of right authority was one that mirrored the actual authority claims in the system at the time that he wrote the Decretum. Canon law was not the only body of thought to address these questions of justice and war during the Middle Ages. Scholasticism, which reconciled faith with reason, was also important to the development of the just war tradition during this period. The work of Thomas Aquinas exemplifies this approach. Aquinas treated war as justifiable under a set of carefully defined circumstances. Like his contemporaries, Aquinas focused primarily on the key jus ad bellum problems of legitimate authority and just cause. Aquinas’s thought afforded some clarification on the point of legitimate authority. In

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Thomistic thought, only wars waged by public authority could be just (Aquinas 2006b, 183). This explicitly political view of authority rejected claims by nobles possessed of private militias, trading associations, and perhaps most surprisingly the Church (Orend 2006, 15). Aquinas narrowed the class of those with right authority even further. Rather than endow a wide range of rulers within the feudal system with the authority to declare war, Aquinas limited this right to political sovereigns with no superiors (Aquinas 2006a). This concentration of authority is significantly more limited than Gratian’s treatment of right authority, which diffused the authority to declare war throughout the political and ecclesiastical systems. It is also, importantly, a secular conception of right authority that was significantly more modern than those that preceded it (O’Driscoll 2009, 24). On the point of just cause, Aquinas (2006b, 177) limited the right to wage war to vengeance for injuries inflicted or punishment. Accordingly, the sovereign would function as a dispenser of justice. Aquinas also emphasized the importance of right intention, specifically that those waging war be motivated by an intention to advance good (177). Aquinas’s most significant innovations were his treatment of proportionality and the doctrine of double effect. Though largely rejected in his own time, these ideas remain fundamental to contemporary thinking about justice and war. The doctrine of double effect distinguishes between intended and unintended consequences of a particular act and derives the moral nature of that act from the consequences that the actor intends. Aquinas discussed double effect in the context of killing in self-defense. Self-defense, he wrote, may have a double effect: the effect of saving one’s own life, on the one hand, and the slaying of the attacker, on the other. Since saving one’s own life is what is intended, such an act is not therefore illicit, seeing that it is natural to everything to keep itself in existence are far as possible. (2006b, 190)

Aquinas qualified this idea of double effect, requiring that the unintended evil effects of the act in question be proportional to the intended good effects. The idea of proportionality functions as a limitation on the use of double effect to justify an act. If the unintended evil effects are disproportional to the intended good effects, Aquinas would prohibit that act despite the fact that only the good effects were intended (190).

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While scholastic thought sought to reconcile faith and reason, other elements of the just war tradition, such as the influential holy war doctrine, relied on religious faith alone. The influence of this strand of just war thought derived from the position of the Church during this time. This doctrine, which provided legitimacy to the Crusades, conditioned the justness of waging war on God’s comment. The pope derived his authority to wage war from his status as God’s representative on Earth. Pope Urban II drew on this right when he preached the crusade in 1095 (Bellamy 2006, 44–45). Because, according to this component of the tradition, the holy war derives its just cause from God’s command, holy war doctrine rejected efforts to place constraints on the waging of holy war. To the extent that holy wars targeted heretics, or non-Christians, the jus in bello norms of the time did not restrain the conduct of the war as these norms applied only to wars waged against other Christians (Russell 1975, 210). As such, any means were authorized to attain the presumably just cause of the holy war. Though sometimes marginalized within the just war tradition, holy war doctrine in many respects exemplifies the just war thinking of the Middle Ages. It was the key formulation of just cause within one of the authority systems of the time. Wars in defense of the faith were very significant during this time frame, particularly for the Church (Kantorowicz 1957, 236). Holy war was, in this respect, a form of spiritual self-defense for the Church. The focus of the just war tradition on authority and the treatment of just cause as absolute reflect the reality of the multiple systems of authority within Europe during the Middle Ages. Given the pluralism of the feudal system and competing nonfeudal authorities, just war theorists were hard pressed to identify the actors who possessed right authority to declare war. The formulation of just cause, particularly the inclusion of holy war as a possible basis for a just war, reflects the influence of the Church as one of those systems of authority. The absolutist approach to just cause, which was exemplified by holy war doctrine, promoted the marginalization of jus in bello norms during this phase of the just war tradition’s development. Just cause was treated as residing exclusively with one party to the conflict, and it was often treated as justifying the actions necessary to attain the purpose of the war. This formulation of just cause implies that the end justified the means, any and all, that were necessary to attain the just cause. Coupled with the complexity of the jus ad bellum questions of just cause and right authority, this view of just cause meant that jus in bello norms were relatively neglected.

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Early Development of Jus in Bello Norms There was some early effort devoted to limiting the conduct of war. First, the means of fighting were by and large treated as justifiable means toward a just end. In time, the just war tradition would come to recognize that a war may be just on both sides, rather than on one side alone. Prior to that insight, any means necessary to achieve the just side’s cause were treated as justifiable. As such, monarchs tended to frame their grounds for war as based on right (Meron 1993, 21). Punishment of a perceived wrong was just cause for war (Gould 2009b), and mistreatment of civilians was often justified on the basis that the war was a form of just punishment (Meron 1993, 102). Second, the jus in bello norms that existed were of limited applicability. Jus in bello limitations restricted the conduct of war in some ways, but they did not apply to all combatants. Instead, the application of these norms was highly dependent on the status of particular individuals. For instance, unlike contemporary jus in bello norms, which apply to all noncombatants, the norms of the Middle Ages applied only to narrowly defined categories of individuals. Early efforts at jus in bello limitations included efforts to restrict fighting on certain days, measures to exempt certain groups from the effects of war, and bans on the use of particular weapons (Johnson 1981, 125–28). Some limited forms of noncombatant immunity were proposed, with certain individuals such as women or merchants being protected from the horrors of war based on their position within society (Bellamy 2006, 31). One such measure, the “Peace of God,” sought to protect those noncombatants who were incapable of defending themselves, including priests, monks, clerics, women, pilgrims, and merchants (Hartigan 1967, 213). Under its terms, Church property was also exempt from attack by combatants. Gratian’s treatment of jus in bello norms in the Decretum contained a similar sort of limitation in which certain classes of individuals were protected from the horrors of war (Bellamy 2006, 34). Thomas Aquinas was an early proponent of a somewhat broader type of noncombatant immunity principle that prohibited killing the innocent and the righteous during war. By “innocent,” Aquinas was referring to a general moral condition of conforming one’s own will to God’s (Hartigan 1967, 211). Although this proposal contained inherent difficulties in identifying the innocent and righteous, this prohibition was much more extensive than earlier proposals that protected only particular classes of individuals defined by their social functions. Aquinas’s treatment of jus in bello comes

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much closer than any of its predecessors to being a principle of noncombatant immunity like that recognized today, and can therefore be considered a forerunner of the contemporary formulation of this rule. This broader formulation of noncombatant immunity, coupled with Aquinas’s focus on proportionality, could have done much to protect civilians from the effects of warfare. However, Aquinas’s ideas about just war were widely criticized and largely rejected during his lifetime and would not acquire their present influence on the just war tradition until much later (Bellamy 2006, 40). The chivalric codes were perhaps the most influential source of jus in bello principles during the Middle Ages. The significance of these codes was tied closely to the increasing importance of knights in combat. While the chivalric codes formed the basis of the right of private war, they also provided rules for the restriction of knights’ conduct during war. These rules, which applied to the knighthood, were limited in the scope of their concern to relationships within the knighthood and therefore had little to say about the treatment of noncombatants. As James Turner Johnson (1981, 135) notes, chivalry was a code morality and, as such, drew a sharp divide between those who belonged to the group and were covered by the code and those who did not belong to the group and fell outside of the code. These rules did impose some restrictions on the waging of war by knights, but the nature of these restrictions is at odds with contemporary notions of jus in bello because they did little to protect civilians. While the chivalric codes were successful in limiting violence among knights, Alex Bellamy found “no evidence to suggest that knights showed much restraint when it came to non-knights. Common soldiers were often massacred, towns burnt and churches attacked” (2006, 43). The double standard applied to common soldiers is an outgrowth of the exclusionary dynamic of the code morality (Johnson 1981, 137). Those who were subject to chivalric code also exhibited a lack of restraint with respect to civilian noncombatants. These abuses against nonknights and civilians formed much of the basis of the criticisms of private war. Though the chivalric codes did influence the behavior of knights, they did little to protect the vulnerable populations that are the beneficiaries of contemporary jus in bello norms. In short, the focus of just war thinking during the Middle Ages reflected the political realities of the time. The complex patchwork of authority naturally brought questions of right authority and just cause to the forefront. There were some efforts to restrain violence against noncombatants that

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stemmed not from the identity or social role of the noncombatants (as in the religious doctrines) but from the identity and interests of the knights themselves (Johnson 1981, 138). These limited formulations of noncombatant immunity lacked significant influence. It was only with the relative decline of jus ad bellum concerns after the emergence of the state system that jus in bello limitations would come to the forefront of just war tradition. A key factor in this relative decline of jus ad bellum was the growing realization that both sides in a war could have at least some degree of justice on their side. Over time, thinking about just cause evolved, and just cause was no longer treated as the exclusive domain of just one of the parties to a conflict. This transformation within the thinking about jus ad bellum led to the more careful consideration of jus in bello rules. If both sides could have some just basis for fighting, the manner in which the war was conducted became key to evaluating the justness of the war as a whole. Although the two developments were only connected by their occurring within the same time frame, this transformation in just war tradition evolved in the period immediately before the Westphalian state system began to emerge. The coincidence of this theoretical development with the political developments in the international system transformed just war tradition both in terms of its primary concerns and at the level of the principles themselves.

The State Era and the Just War Tradition While the rise of the state did lead to the consolidation of authority within states as territorial entities,2 the state system did not immediately drive out nonstate actors engaged in the use of force. This reality is belied by contemporary understandings of the state that rely heavily on the state’s monopoly over legitimate means of coercion. Max Weber’s (1964) definition of the state as the entity with a monopoly over the legitimate use of force embodies this conception of the state. Anthony Giddens (1985, 121) likewise emphasizes the nation state’s monopoly over both internal and external force in his definition. This understanding of the state as the entity with a monopoly over force 2. Even this consolidation was not instantaneous. Some aspects of the Westphalian state system emerged prior to the Peace of Westphalia and others would not be consolidated until much later.

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has also been incorporated into international relations tradition (Kolodziej 2005, 171; Reus-Smit 2002, 123–24). This view of the state reflects current conceptions of sovereignty, but it backgrounds the long historical process by which the state’s authority over force emerged. The state did not eliminate nonstate actors such as mercenaries for some time after the Peace of Westphalia. On the contrary, like their counterparts in the Middle Ages, early Westphalian sovereigns continued to rely extensively on the provision of force by nonstate actors. The nonstate actors they employed even extended beyond mercenaries. The practice of privateering involved the state licensing private individuals to attack ships belonging to enemy states (Thomson 1994, 22). Likewise, states established mercantile companies and endowed them with considerable authority for the purpose of expanding their colonial empires (32). Even more significant for the purposes of this discussion is the fact that these early states continued to draw their own military forces largely from mercenaries. Although the practice of utilizing mercenaries endured, the market for mercenaries did undergo some important changes as states began to consolidate their authority. In response to concerns about the lack of sovereign control over independent companies, states assumed tighter control of the mercenary trade (Percy 2007b, 91). Previously, independent mercenary companies contracted directly with states. The independence of these mercenary companies led to some unintended consequences that were sometimes at odds with the interests of the states that employed them. In one instance, when an invading force of six thousand Swiss mercenaries met up with seven thousand Swiss mercenaries hired to defend Milan, the latter deserted their employer (Thomson 1994, 54). The lack of state control over mercenaries, initially the source of their appeal, became the cause of the problems that the mercenary companies created for their state employers. Once states began to restrict the trade in mercenaries, these independent companies came under state control. Switzerland, for example, made its mercenary troops into permanent national troops that could be hired out exclusively to France (Percy 2007b, 85). Italian city-states granted citizenship to those who had been mercenaries, which had the effect of integrating them into the communities as citizens and subjecting them to the authority of the city-state (86). In contrast to the previous, relatively unrestricted mercenary market, states tightly controlled the trade in mercenaries and directly hired them out to other states, often as part of an alliances (91). Despite these transformations

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in the private market for force during the early period of the state system, the mercenary market continued to thrive and early states were both consumers and providers of private force (Avant 2005b, 27). Prior to the French Revolution, the use of mercenaries was the rule rather than the exception (Avant 2000). Only with the success of revolutionary France’s army did national forces begin to replace the multinational forces composed largely of mercenaries that states had relied on up until that point. The influence of France’s national army was both strategic and normative (Singer 2003, 30). The military successes enjoyed by France after the revolution inspired other states to imitate the French model of a citizen army and eschew the hired soldiers that had previously formed the core of their militaries. Likewise, the Enlightenment ideals of nationalism made fighting out of patriotism more noble than fighting for profit. Rousseau’s discussion of mercenaries in The Social Contract captures this shift. Rousseau (1997, 28) associates mercenaries with tyrannical oppression and citizen armies with the more noble cause of defense of the homeland. Rousseau’s treatment of mercenarism implies that the cause of self-defense will draw patriotic citizen soldiers to serve in the military out of a sense of nationalism. In contrast to the nobility of these citizen armies who were motivated by their dedication to the common cause, Rousseau wrote, the worth of mercenaries “could be judged by the price at which they sold themselves” and they would rather be “henchmen of Caesar than defenders of Rome” (29). Rousseau’s description of mercenaries captured the antimercenary motivating the shift from mercenary forces to citizen armies. These strategic and normative factors contributed to the eventual nationalization of military force and the end of mercenary armies. The emergence of national armies, which coincided with limits on mercenarism, reflected a real and significant shift in the relationship between a state and its citizens (Bukovansky 1999). The principles of the American Neutrality Act of 1794, which limited the right of US citizens to participate in foreign militaries, suggested how this relationship was changing. Led by the efforts of the United States in the early 1800s, the state now “claimed a monopoly on the authority to organize violence within its borders, even if it were organized for deployment beyond those borders” (Thomson 1994, 86). This new attitude toward the relationship between state and citizen, and in particular the state’s assertion of control over its citizens’ military service,

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meant that individuals were no longer free to sell their force on the open market. Private actors engaged in the use of force became delegitimized. While mercenaries persisted during the period of the national army and continued to participate in conflicts, they were no longer seen as the norm. Those mercenaries who continued to operate were generally lone individuals who would hire themselves out in an underground market (Singer 2003, 37). The rise of the national army had relegated them to the margins of the international system. Private force would not reappear as a significant factor in the international system until the present market for force emerged at the end of the twentieth century.

The Emergence of the State System and Just War Principles Although the state did not immediately displace these other private actors after the Peace of Westphalia had been signed, the emergence of the state did transform the political landscape in a manner that had some significant implications for just war tradition. The rise of the state and the interstate system were important for the direction of the just war tradition. On one hand, unlike the decentralized feudal system, the state concentrated authority over its territory within a single central authority. On the other hand, in contrast to a more hierarchical form of political organization like the Church or an empire, the society of sovereign states consisted of political entities that were juridically equal to one another. The emergence of the sovereign state precluded the possibility that a higher authority could authoritatively assess the justice of any particular war (Miller 1964, 255). This meant that each state had the ability to assess both its own right to wage war and the claims made by other states with respect to justice and war. Indeed, in the absence of a centralized authority they were the only actors with the right to do either. The new society of states now lacked any other actor with the authority to determine whether states’ claims of just cause or just conduct were legitimate. Instead, each state was in the position of asserting and assessing claims based on the standards developed within the society of states. The evolution of this society of states meant that, for the first time, actors possessed of equal authority engaged in dialogue with each other about the application of just war tradition standards. This was echoed in Emer de

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Vattel’s (1916) discussion of just war standards, in which he suggested that states actually owed each other an explanation of their decision to wage war in terms of the principles of just war tradition.3 This transformation from the feudal to state system brought significant changes to the restrictions on fighting war, both in terms of the process by which rules arose and in the substance of the rules themselves. Along with the state came transformations in the nature of armies. The knighthood became less important militarily as more members of lower classes became integrated into the state’s militaries. These structural changes in state militaries would influence the shape that the just war tradition would take. Because those fighting no longer shared the bond of belonging to a common class, the chivalric codes that had been important during the Middle Ages faded into the background. Instead, concepts like natural law or common practice would come to the forefront (Johnson 1981, 183). Over time, these concepts would also give way to legal positivism, which conditioned the obligations of states on their consent. This view of legal obligation stood in stark contrast to earlier views, which derived obligations from natural law. Natural law imposed obligations on all actors in the international system, regardless of status. By contrast, legal positivism imposes obligations on states, and specifically on states that give their consent to be bound. With these transformations within the international system, the just war tradition became increasingly tied to the state. The question of right authority, which had bedeviled the just war theorists of the Middle Ages, became resolved in favor of the state. By the seventeenth century, Hugo Grotius (2004) granted the sovereign states a privileged position with respect to rights. This privilege is especially pronounced with respect to the right to use force. While he did not rule out war by nonstate actors in extraordinary circumstances, Grotius “does give an especially prominent place to states as opposed to individual persons and nonstate entities” (Bull 1992, 84) compared to these other nonsovereign bearers of rights and duties. Michael Donelan (1983) argues that Grotian thought contains three images of war: as a judicial act, as

3. This is similar to the function of what John Rawls (1999a) would later call “public reason,” a set of principles that citizens use to justify their positions to one another. Rawls argues that states should operate in the same way by using the principles to which they share a common commitment to explain their actions to one another. In his account of international justice, the principles of the Law of People fulfill this function.

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litigation, and as defense of the common good. He explicitly rejected the idea of holy war, however, marking an important transition and the secularization of the just war tradition (Bellamy 2006, 76). This secularization and the shifting of nonstate actors to the margins of the legitimate use of force reflects the rising position of the state and the diminishing significance of nonstate actors that previously exercised considerably more authority and influence within the system. The newly important position of the state would be reflected within the just war tradition and emerging theories of international law. This new doctrine of legal positivism is in some respects connected to the logic of sovereign equality. If sovereign states are equal to one another, and there is no actor above the state capable of imposing obligations on states, then the consent of the sovereign state is the only potential source of binding obligation. Early legal positivists integrated these ideas into existing conceptions of natural law. Vattel (1916), for example, drew from principles of natural law in his conception of the international system. He treated all states as possessing an inherent natural equality that was independent of any agreements that they might make. Likewise, he integrated his conception of legal positivism into these earlier ideas about natural law. Vattel did recognize the existence of natural law, which could resolve conflicts between principles of human law when necessary (4–5). Alongside this natural law were other types of law: “voluntary law,” customary law, and treaty law (4–5). These three categories all involved some form of state consent, which lies at the heart of legal positivism. This emphasis on legal positivism and state consent was one of Vattel’s primary contributions . . . his rejection of the idea of a universal world community predicated upon either Christianity or rationality and advocacy of the idea of an international society of sovereign equals bound by voluntary rules. (Bellamy 2006, 81)

Coinciding with the rise of this doctrine, particularly the emphasis on consent, was a greater codification of the rules of armed conflict in the form of international treaties. These treaties often tracked jus ad bellum and jus in bello principles that have emerged from the just war tradition. As states participated in and cooperated with international institutions, the institutions themselves began to play an important role in the codification and development of just war norms. I will return to these international efforts to codify

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and extend these just war norms by means of treaties, but the mere emergence of the state system was also a transformative event within the life of the just war tradition.

The State System and the Transformation of the Just War Tradition The emergence of the state system was also transformative in terms of the substance of restrictions on warfare. With the rise of the state, some questions that had plagued thinkers of earlier eras resolved themselves, while other issues became more complex. The emergence of the state resolved the problem of right authority that had figured prominently in the just war tradition during the Middle Ages. The centralized state provided an alternative to the competing authorities of the feudal era as well as a clear answer to the question about the authority to declare war. At the same time, the concept of just cause was becoming more ambiguous because of the rise of the state. While the Church had persisted as a major source of political authority and a driving force behind the just war tradition, religion factored into the jus ad bellum picture in important ways. The thinking on holy war was treated, Bellamy (2006, 44) argues, as part of the just war tradition. The Church’s political decline and the rise of the state as a secular political entity led to the decline of holy war doctrine and, along with it, an emphasis on other aspects of just cause. These other types of just cause were often somewhat ambiguous, and in some cases a war could be at least partially just on both sides. If one state was waging war to avenge an injury or to punish a wrong, could not the target state claim to be waging a just war of self-defense? In light of these ambiguities with respect to just war, a war’s justness was more likely to be assessed in terms of its conduct. The emergence of the state and the international system also transformed jus ad bellum norms. Related to the emergence of the state system and the decline of more centralized forms of authority, the substance of jus ad bellum became less important relative to the process of deliberation about whether the principles were satisfied. This was in part because the function of sovereign equality within the international system precluded a “final” decision on whether or not a claim was substantively just. With the decline of substantive considerations, the procedural aspects of jus ad bellum came to the forefront. Determining whether one state had been injured by another,

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or whether waging war to avenge it was proportional, was complex. In the absence of an authoritative decision maker, each state could potentially reach a different conclusion. Assessing whether a state has made a proper declaration of war, on the other hand, is relatively easy. There were also more substantive reasons for this shift. Much of the substance of jus ad bellum reasoning had also been tied into the centralized actors within the international system, particularly the Church. The concept of holy war, for example, was devoid of meaning without its religious underpinnings. The decline of the Church as a centralizing force within the international system, and its replacement with the anarchical system of states, contributed to the demise of holy war. For now, the key point is that contemporary formulations of these jus ad bellum principles express these limitations in terms of the state system. The state is assumed to be the key actor in international society, and particularly in warfare, to the near-total exclusion of other actors. Michael Walzer’s (2000) treatment of the state system exemplifies the significance of the state for the just war tradition at this stage of its development. Walzer likens the political independence and territory of the state to the freedom and life of the individual. Like an assault on the individual, “Every violation of the territorial integrity or political sovereignty is called aggression” (52). The preservation of states, and the political communities that they contained, constitutes the archetypical example of just cause for Walzer and for the contemporary just war tradition. In his domestic analogy, aggression at the level of international society is the equivalent of robbery or murder in domestic society. In the same way that individuals make up domestic society, states are the citizens of the international society (58). These societies have undeniable differences. International society lacks the centralization of domestic society, meaning that enforcement of the prohibition on aggression falls to the citizens of international society, the states. This law enforcement function is a key component of the justification for wars of self-defense. But this conception of international society as populated exclusively by states leaves little room for nonstate actors. John Williams has argued that the state is now so embedded in the current incarnation of the just war tradition that “non-territorial is in danger of  coming to mean unethical” (2008, 582). Walzer does consider some nonstate actors, like terrorist groups or belligerent actors seeking control of the state mechanisms, but he gives these actors little consideration. His account of the just war tradition in Just and Unjust Wars (1977), written

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before the reprivatization of force became a significant factor in international society, does not conceive of actors like PMCs as a significant factor in the evaluation of justice and war. Instead, his view of international society is statist to the exclusion of these private actors. This exclusion of nonstate actors belies their growing significance and the ways in which their activities can skew the application of ethical principles even to states within the international system.

Internationalism and Just War Principles The lack of a central authority to enforce common standards does not mean that states did not seek to agree about restricting the use of force. The state era, and the twentieth century in particular, is distinguished by a number of collective efforts to place limitations on states’ right to wage war. The push toward codification got underway in the mid-nineteenth century with “a veritable explosion” of treaties (Orend 2006, 20). The emergence of international organizations facilitated the process of codifying legal rules that track the principles of the just war tradition. The founding documents of these organizations contained rules on the use of force that mirrored important aspects of jus ad bellum restrictions. The League of Nations, formed in the aftermath of World War I, was an early effort to restrict the use of force by its members, though its restrictions were more procedural than substantive, requiring states to exhaust certain remedies before initiating war (O’Driscoll 2009, 27). Specifically, the League Covenant institutionalized something like the “last resort” criterion by mandating that member states attempt to resolve disputes peacefully before using force and by providing an institutional mechanism to support those dispute resolution efforts. The League of Nations enjoyed some modest successes in resolving some international disputes, but its highly visible failures to prevent or punish aggression in places like Manchuria or Czechoslovakia ultimately led to the organization’s demise. The UN Charter contained more restrictive provisions on the use of force in addition to collective security provisions that the League of Nations had lacked (O’Driscoll 2009, 28). Bellamy observes that the UN Charter provisions on war “tightened the principle that sovereigns had an obligation to justify themselves to their peers whenever they decided to use force” (2006, 107). The Charter contains the principles, accepted by the UN member

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states, from which states can draw to justify their use of force. The key Charter restriction on the use of force, Article 2(4), mandates that all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

This broadly worded prohibition forbids nearly all use of force. The Charter carves out an exception for emergency self-defense measures in Article 51 and, in Chapter VII of the Charter, for the authorization of force by the UN Security Council in response to an act of aggression or a breach of or threat to peace and security. UN practice has suggested some willingness on the part of the Security Council to interpret these latter provisions broadly and to use force for purposes like humanitarian intervention, at least in limited cases (Wheeler 2000). The Charter standards that have evolved from its text and from practice do not necessarily correspond neatly to the requirements of the just war tradition. The key point with respect to the UN system and the just war tradition is that the UN system reflects the statist norms of the international system in both its principles and its institutional structure, leaving no real space for nonstate actors. In the particular case of humanitarian intervention, this statism poses some distinct problems, as the protection of individual rights is widely viewed as placing limitations on state sovereignty. States have also struggled to incorporate nonstate actors into jus in bello principles, in part because the first serious efforts to develop these norms occurred within the context of the state system. Jus in bello rules assumed a position of greater significance than they had previously held due to new thinking about jus ad bellum norms. As the absolutist view of jus ad bellum became less influential, and both sides in a conflict could be allowed to have some degree of justice, jus in bello norms became relatively more important than they had been in earlier times. These jus in bello principles were translated into the legal system in the form of conventions on the law of armed conflict. The first comprehensive efforts were the Hague Conventions of 1899 and 1907, which were precursors to the contemporary Geneva Conventions that were adopted after World War II. Another international organization, the International Committee of the Red Cross (ICRC) facilitated

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the negotiation of the Geneva Conventions and subsequent documents that codified the law of armed conflict (Bellamy 2006, 108–9). These documents codified and extended many principles from the growing body of jus in bello thought. However, these principles reflect a particular definition of combatants based on statist assumptions. In particular, the Geneva Conventions assume a sharp divide between soldiers and civilians. The former category includes those who are part of a hierarchical military system set apart from the peaceful realm of civilian life.

Postinternationalism? This state-centric formulation of jus in bello norms has come under stress from another sources, including the rise of civil war and irregular warfare. By the Cold War period following World War II, this form of conflict would eventually displace international wars as the dominant form of conflict in the international system (Johnson 1999, 3). Though these wars are driven by very different dynamics than interstate wars, they share some of the features of total war that defined earlier interstate conflicts such as World War II, including the understanding of war as an all-or-nothing conflict that can end only when one side is entirely victorious and the other entirely vanquished or driven into unconditional submission the conception of the enemy as including all members of the opposing society, making distinctions between combatants and noncombatants irrelevant; the use of atrocity as a means of war; the use of ethnic, religious, or other cultural differences . . . to make the enemy appear less than fully human and, in any case, totally in the wrong. (Johnson 1999, 5)

There are also important differences between this form of warfare and its interstate predecessor. The shift away from violence between states to violence within states has chipped away at core assumptions of the just war tradition as presently formulated, particularly with respect to the principle of legitimate authority, which I consider in the following chapter. While policymakers were relatively quick to recognize this shift, the just war tradition lagged behind, maintaining its focus on international war and avoiding the issues posed by internal strife (Johnson 1999, 12). The just war tradition has

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struggled to incorporate these belligerent movements, and international law has done only marginally better with the adoption of Protocol II to the Geneva Conventions in 1977. Protocol II provides for the recognition of belligerencies, which provides them with a degree of international legal personality. This status extends to belligerent movements some rights and responsibilities under the law of armed conflict. Belligerent movements are in some respects the tip of the iceberg with respect to the decentralization of force. The weakening of the state, at least in relative terms, has created openings for other actors to begin performing many of the functions that were once the exclusive domain of states. The process of globalization has brought to the state system changes so sweeping that some now refer to the system as postinternational (Ferguson and Mansbach 2004; Rosenau 2003). Ferguson and Mansbach (2004) develop an account of postinternationalism that emphasizes change while at the same time recognizing that these changes are not without historical antecedents. They see the change the rise of postinternationalism as the result of two processes: first, the growth of somewhat amorphous regional and global authorities; and, second, the fracturing of existing political authorities into smaller communities (20). In this global order, war itself is becoming transformed into what Mary Kaldor calls “new wars,” which involve a blurring of the distinctions between war (usually defined as violence between states or organized political groups for political motives), organized crime (violence undertaken by privately organized groups for private purposes, usually financial gain) and large-scale violations of human rights (violence undertaken by states or politically organized groups against individuals). (2007, 2)

Christopher Kinsey (2006) draws a connection between these new wars and PMCs. These new wars, he argues, contribute to the commercialization of politics (123). This commercialization, which blurs distinctions between the conduct of states and nonstate actors, is a key component of the context within which PMCs now operate. Kaldor locates the emergence of new wars within the context of the eroding of the state’s monopoly on force and the rise, at least in relative terms, of nonstate actors. While I do not discount the importance of these nonstate actors, those who treat the state as just another actor in this political system go too far both in elevating the private actors and devaluing the state. The state is assumed to

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be the key actor in international society, and particularly in warfare, to the near-total exclusion of other actors. The omission of these actors from just war principles would not pose a normative problem if these actors were an insignificant component of the international system. The increasing participation of these nonstate actors in the international system is a key feature of transformations within the system that are associated with globalization. This statism is not inevitable, and will not necessarily be the case in the future. Political culture can change over time, and the present statism is historically contingent rather than fixed and unchanging. Just as the rise of the state altered the political culture of the international system, so the growing role of private actors will also change the political culture of the international system. Nevertheless, the present political culture of the international system is statist. As such, states continue to enjoy a special position in international ethical reasoning, as they do in contemporary formulations of the just war tradition. But the changes that prompt some to characterize this order as postinternational do fundamentally alter the context within which states operate, giving rise to a more active and significant private sphere at the international level. The challenge posed by PMCs differs from that of belligerent movements. First, belligerent actors resemble states in important ways. Cecile Fabre (2008, 968) suggests that in the modern era, wars are fought in defense of “state interests” like territory or political authority. Lawful belligerents, she argues, defend the same interests. While rebel movements are not states, they aspire to control of the state. If successful, national liberation movements or rebel movements assume control of the state apparatus and become the legitimate authority of the state over which they seek control. Second, as I argue in the next chapter, PMCs enjoy a degree of legitimacy that is conferred on them by the state itself. Unlike belligerent movements and other nonstate actors, PMCs operate with a degree of legitimacy that other actors do not possess. The state, which has come to be defined as the entity enjoying a monopoly over the legitimate use of force, has delegated a degree of its legitimacy to other actors. In this respect, the present market for force resembles the picture Janice Thomson (1994) painted of early modern Europe, in which the state used nonstate actors to further its own interests and all of these entities enjoyed the right to engage in the use of force. This definition of who constitutes a combatant reflects the reality that these rules evolved during the high-water mark of national militaries and,

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as such, are ill-suited to some of the changes occurring within the international system. The Protocol Additional to the Geneva Conventions of August 12, 1949, relating to the Protection of Victims of Non-International Armed Conflicts (Geneva Protocol II), was an attempt to address some aspects of irregular warfare. Geneva Protocol II was addressed primarily to civil wars contained within the borders of a single country. The protocol may not even apply to all noninternational armed conflicts, since Article 1 requires that the belligerent movement control part of the state’s territory. Even a set of principles applicable to all civil wars would be inadequate to address the realities of nonstate actors’ participation in armed conflict; Geneva II has nothing to say regarding international armed conflicts in which nonstate actors participate. These conflicts are becoming increasingly common due to transformations within the international system.

The Reversal of the State Monopoly on Force The reprivatization of force has been driven by a number of dynamics with the evolving international system. I argue that two main factors have contributed to the rise of PMCs. The first of these is the dynamic of supply and demand that drives any free market. Several developments within the international political system created a supply of individuals ready, willing, and able to provide their services on the private market. These political developments included the end of the Cold War and the subsequent dissolution of the Soviet Union, which prompted both the United States and the newly independent former Soviet republics to reduce the size of their militaries. The end of the apartheid government in South Africa prompted a similar downsizing. The end of the Cold War or of white minority rule in South Africa did not mean an end to the need for military intervention across the entire international system, however. The end of the Cold War in particular had a destabilizing effect within some states. A number of civil conflicts that had been suppressed during the Cold War soon boiled over. While the international community was initially happy to intervene through the UN or regional organizations, they soon developed a fatigue that rendered them unwilling to intervene in situations where they would previously have taken action. This unmet need created a demand for the services that the nowunemployed military personnel were prepared to provide.

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The second factor behind the rise of the PMC industry is globalization and, perhaps more importantly, the ideology that underlies it. One can imagine post– Cold War security needs being met in any number of ways. A number of conservative governments in the 1980s and 1990s pursued a path of privatization because of their ideological preference for the free market (Spearin 2004, 41). In the US case, the belief that relying on private forces yields more “bang for the buck” has created a preference for reliance on PMCs (Spearin 2003, 29). US political culture has long favored a small government and a robust civil society. Globalization has diffused these particular values across the global political institutions. Since then, these ideological preferences have been institutionalized at the international level in the form of the free trade regime. The neoliberal ideological underpinnings of globalization push the resolution of this particular supply and demand problem toward a particular outcome, which is the reprivatization of force (Singer 2005, 120). This has had the effect of promoting privatization both globally and within states. One hallmark of the globalization regime has been the “outsourcing” of manufacturing or services from areas perceived as less efficient to those seen as more efficient. Manufacturing and service jobs have flowed from high-wage areas to lowwage areas. The privatization of war fighting is both the apparent logical extension of this proprivatization ideology and the potential transformation of the state system, as the state outsources its core functions to private actors. The performance of these core sovereign functions by private actors has some potentially serious implications for the state system. While PMCs are waging war and performing other security functions much like states have done, they are also ultimately corporate actors. This means that their loyalties are starkly different from those of national militaries. National militaries are part of the state apparatus. PMCs have no accountability or loyalty to the states that hire them beyond their contractual obligations. David Simons stated aptly that the loyalties of PMCs “shift with each contract” (2004, 68). Even these obligations are secondary to the PMCs’ ultimate responsibility to their shareholders. Steven Brayton noted that there is no reason for a private company to act in the interest of a client country other than for its contractual obligations. Furthermore, these obligations are secondary to profit and the interests of company shareholders. A company that honors [its contractual obligations] at the expense of [profits and shareholder interests] will not survive. (2002, 319–20)

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As with any corporation, a PMC is accountable to its shareholders, meaning that it is obliged to maximize profits for those investors. A PMC has no inherent interest in the state system or in the survival of any particular state. Its interests lie in pursuing which ever course is more profitable. A notable exception to this sweeping generalization is EO. This PMC chose to limit its clientele to recognized governments and publicly traded corporations. This type of limitation did not, of course, guarantee that EO fought only on behalf of causes that would be considered just according to the demands of the just war tradition, but a self-imposed limitation of this type runs counter to the stereotypical idea of a PMC selling its services to the highest bidder. EO also adhered to high standards in terms of the manner in which it carried out its duties. Why would EO choose to restrict itself in this manner? The answer is largely pecuniary. Maintaining a relatively strong human rights record was good for business, as it could lead to future contracts (Howe 1998b, 309). Singer (2003) suggests that the motivations behind EO’s self-restraint might also have been partly psychological. Many of its individual members were drawn from South Africa’s apartheid-era forces. The founder of EO, Eeben Barlow, had a military resume that included stints with the 32 Battalion of the South African Defence Force—a unit ultimately implicated in egregious human rights violations by the South African Truth Commission—and the Civil Cooperation Bureau, which engaged foreign support for the apartheid regime (102). For these apartheid-era military veterans, being greeted with cheers when they entered towns in Sierra Leone was “a novel experience” (103). EO was eventually shut down by South Africa’s 1998 Regulation of Foreign Military Assistance Act, which prohibited mercenary activity by its citizens. This act is in some respects a throwback that reasserts the more classical view of the sovereign state and its authority over its citizens against this wave of reprivatization of force. The origin of EO’s personnel in South Africa’s apartheid-era military makes this firm’s self-imposed limitations on its clientele and conduct somewhat surprising, but no less laudable. However, the broader points of this example are that these limitations on EO were self-imposed, and they were motivated not by the firm’s recognition of being bound by international law or morality. Instead, these limitations were driven largely by considerations of profit. There is nothing inherent in the structure of PMCs that requires them to adhere to any such limitations. These new realities are both similar to and different from the private use of force in the past. Prior to the French Revolution, the national army was

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the exception and private mercenaries were the norm. In this respect, the provision of force is in keeping with what has been the rule rather than the exception. The key difference between the reprivatization of force and the provision of force by these earlier actors is that in the earlier era of privatization there was no norm in favor of control of force by the state. Instead, the international system had always been populated with multiple types of private actors. The reprivatization of force is occurring in an era in which the state is the dominant actor in the international system and is closely associated with a monopoly on the legitimate use of force. I agree with Deborah Avant (2005b, 2) that the private sector, while always present in some capacity, now has a role in security that is both qualitatively and quantitatively unprecedented since the emergence of the modern state. The primary source of the differences between the role of mercenaries and the role of PMCs, I contend, is that the norms of the international system have shifted profoundly since mercenaries composed European armies. As nonstate actors engaging in the use of force, PMCs are now operating in an international system that has no theoretical space for them. In their account of emerging private authority, Claire Cutler, Virginia Haufler, and Tony Porter argue that “the very definition of the field as ‘international relations’ reflects a preoccupation with territorially specific and state-bounded notions of authority that focus on the state as the essential actor and unit-of-analysis” (1999, 17). The just war tradition since Westphalia, and particularly since the state’s acquisition of its monopoly on the use of force, has largely shared this preoccupation with the state which, with the centralization of political authority within the state, became the sole entity with the legitimate authority to wage war. Because of this statism, principles of international ethics are ill-equipped to deal with the realities of nonstate actors performing the functions previously carried out exclusively by states. The preoccupation with the state has created a division between the public political sphere and the private sphere on the international level. This divide relegates certain actors—states—to the “public” political sphere and leaves the remaining actors— even those that now perform state functions—in the hidden “private” sphere. The public sphere is the proper domain of political concern, but the private sphere is set apart and treated as irrelevant to public life. This focus on the public at the expense of the private obscures the ways in which the actions of private entities can influence the actions of public or state actors or the application of ethical norms to those actions. Though unseen, private actors can significantly

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skew the application of ethical norms even to state actors within the public realm. Private actors, like PMCs, now perform functions previously associated with the state. Though largely unseen, the behavior of nonstate actors forms part of the political terrain over which these public sphere normative principles apply. The activities of private actors can create hidden distortions in this terrain that frustrate a meaningful application of these ethical principles that were formulated for public actors. When the state outsources some of its functions to private actors, the reality is that the state and these entities from the private sphere are acting in concert and their behavior should be considered cumulatively for purposes of assessing certain aspects of that behavior. In other instances, though, private actors must be treated as possessing their own agency. This argument may seem contradictory. Treating states as being responsible for some aspects of PMC behavior and PMCs themselves as also responsible for their own behavior does contain a certain degree of tension. Ultimately, however, holding multiple agents responsible for the same actions is possible and, under certain circumstances, imperative to serving the purpose of the just war principles. I suggest that the divide between these systems of responsibility can be defined along the distinction between jus ad bellum and jus in bello rules. Despite the growing PMC involvement in armed conflict, states still make jus ad bellum assessments when they decide to wage war. Likewise, the state makes the decision to outsource that war, whether that decision is one of choice (in the case of highly capable states) or necessity (in the case of weak or failing states). Because these are choices that lie within the scope of the state’s agency, it is appropriate to hold the state accountable for these choices and the consequences of them. This is not to suggest that the availability of PMCs to participate in the conflict does not influence the decisions about going to war that jus ad bellum standards regulate. The ability to effectively purchase additional capabilities might make an otherwise impossible war possible or an unpopular war feasible or improve a state’s possibility of attaining the (presumably) just cause for which it fights. Despite this influence, the decision to wage war is a political decision that is ultimately made by the state. As such, the actions of PMCs that bear on jus ad bellum standards can and should be attributable to the state that contracted with them to wage the war. Jus in bello standards, by contrast, apply to those who actually wage the war. While the state decides to wage the war, and to some extent determines

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how that war will be waged, those who actually do the fighting also bear responsibility for complying with the rules that apply to that fighting. Whether these are state or private actors, these fighters bear responsibility for any violations of jus in bello rules that they commit. Who bears responsibility for a particular violation is, of course, a question of fact that can only be determined by examining the circumstances of that violation. But, to the extent that the individuals affiliated with PMCs and even the PMCs themselves can possess moral agency, both can and should be held responsible— along with the state actors, where applicable—for the jus in bello violations that occur during wartime. Nor is there any bar to considering more than one actor to be responsible for a war crime, a point to which I return in chapter 4. Responsibility is an attribute that can be shared by more than one actor (Rodin 2002, 63). For the time being, I will briefly make the point that multiple actors are often held to be responsible for a single criminal act. In a case of murder for hire, for instance, the person who carries out the murder and the person who solicits that murder may both be treated as guilty of that same offense. Likewise, holding an individual from a PMC responsible for a war crime in addition to the state that directed that individual’s conduct is also a possibility, provided that the facts support the culpability of both actors. The remainder of this book is devoted to exposing the challenges that PMCs pose for the application of just war principles to the state actors that engage their services. I argue that while the context within which states operate has changed in a real and significant way, the just war tradition can still apply in this new, more privatized international system, albeit with some key adjustments. Like other theoretical traditions, the just war tradition is less a set of specific rules than a collection of principles that evolves over time and provides answers even to unanticipated questions.

Conclusion The just war tradition has changed significantly over time largely in response to sweeping changes in the norms of the political context within which it applies. In particular, the rise of the state system had a considerable effect on the just war tradition by consolidating political violence under the authority of the state. The centralization of authority to use force and, eventually, the capability to do so, in the state is reflected both in the present priorities of

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the tradition and the current formulation of just war principles that compose this tradition. Other actors that once enjoyed some degree of authority with respect to war have been relegated to the private, apolitical sphere by the emergence of the state. These entities, including the mercenary companies that had previously played a significant role in the waging of war, were relegated to the margins of the system with respect to security. The just war tradition incorporated these political developments. With the state’s consolidation of its authority over force, just war principles became oriented around the state as the key actor in war. Since the state’s acquisition of this monopoly over war, the principles of the just war tradition have continued to reflect the assumption that the state alone fights wars through the means of its national militaries. Nonstate actors have become marginalized in the international system and the just war tradition, which reflects its norms. While the national military model persisted, this assumption served the just war tradition well. However, transformations within the international system, particularly the reprivatization of force, mean that these statist assumptions no longer bear much resemblance to the conduct of war in the contemporary international system. Just as the centralization of authority and force under the authority of the state altered the trajectory of the just war tradition, the reprivatization of force through the rise of the PMC industry will have similarly important effects on the future of the just war tradition. The reemergence of private actors in warfare erodes the privilege that state actors enjoy with respect to the use of force and, by extension, within the just war tradition. Even where PMCs act on behalf of state interests, they chip away at the state’s monopoly on the use of force because the state is pursuing its interests through private actors engaged in the use of force. States of all degrees of capability—in addition to nonstate actors like international organizations or corporations— can and do contract for the force that they need. Some states lack the capability to use force on their own, and they privatize out of necessity. Other states believe in the market as a more efficient solution and they privatize out of choice. In either case, the legitimate use of force by nonstate actors has changed the face of war. The potential profit involved in this contracting for force had led to explosive growth within the private military industry, meaning that these private actors are growing both in size and significance. Not only are there more PMCs taking part in armed conflict, but these PMCs are performing more and more of the functions that have been associated strictly with the

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state. This growth undermines a key aspect of statehood as defined by the current norms of the international system. The widespread use of PMCs by states means that states no longer fight wars exclusively with their national militaries. Because the PMC has broken the state’s exclusive hold over the use of political violence, the emergence of PMCs also challenges the assumptions that underlie just war principles in their current formulation. The growth of the PMC industry, with its concomitant reprivatization of force, poses real and significant challenges for both jus ad bellum and jus in bello norms in their current form. Many of the norms that are part of the contemporary just war tradition, particularly the jus ad bellum norms, arose in a time before the state came to dominate the international system. The emergence of the state system, however, had a profound effect on even these preexisting norms. The jus in bello norms regulating the conduct of war came to prominence within the state system, under conditions in which wars were largely fought by states through their national militaries. Irrespective of its pre-Westphalian origins, the just war tradition is now closely bound up with the Westphalian state system. Consequently, the changes within this system challenge the current formulation of these rules and their applicability to privatized wars. The next three chapters look at jus ad bellum and jus in bello norms and their application, considering these principles in light of the emergence of the PMC industry. In some cases, the treatment of mercenaries in the pre-Westphalian system may provide some guidance as to how to deal with the problem of private force. Although PMCs differ from mercenaries in important ways, the just war tradition’s previous efforts to address private force can provide some insights that will be useful in applying just war principles to PMCs. However, the differences between the international norms of these eras—particularly the statism of the present system—mean that the treatment of mercenaries in the pre-Westphalian system may be of limited applicability to PMCs. A key component of applying just war principles within the new international context will involve looking across the public/private divide that arose with the consolidation of authority in the state system. This divide serves to obscure the activities of nonstate actors like PMCs in the opacity of the private sphere. While the state remains the dominant actor within this changing international system, this system now demands some recognition of the private actors that work in concert with the state.

Chapter 3

Jus ad Bellum Principles and Privatized War

Since the signing of the Peace of Westphalia and the emergence of the national military model, the state has been the key political institution, particularly with respect to the use of force. In light of this, the just war tradition incorporated the rise of the state and the marginalization of nonstate actors. With these developments, questions of authority became secondary to other jus ad bellum principles. With the reemergence of the market for private force, the question of legitimate authority is again becoming a complex issue, as new actors outside the control of the state are now entitled to engage in the legitimate use of force. While the market for private force has many important implications, the most significant is its breaking of the state’s monopoly over the legitimate use of force. This development signals a transformation within the institutional structure of authority that transforms the just war tradition, but also has implications beyond questions of ethics and war. The rise of PMCs is most significant for the issue of authority, but its significance extends to other jus ad bellum principles, particularly the principles that require some evaluation of the relative capabilities of the parties to

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the conflict. The calculations that contribute to assessing things like the proportionality of a conflict or the chance of success, for example, are difficult under any circumstances. The ready availability of private force makes the empirical component of these judgments significantly more complex. The easy access to additional capabilities extends beyond states that are wealthy, making the application of any principles that require judging capabilities or costs more complex. In light of the renewed significance of right authority, this chapter follows the Thomist structure of jus ad bellum by beginning with right authority. Though just cause is now viewed as jus ad bellum’s linchpin principle, because its satisfaction is a prerequisite for other jus ad bellum norms, the principle of right authority occupied this position in the work of Thomas Aquinas, perhaps because of the complexity of questions about authority (Johnson 1999, 46). I argue here that the reemergence of private force has broken the state’s monopoly on the use of force, which has been an assumption underlying the just war tradition for the last several centuries. The rise of PMCs also has implications for the question of just cause, which came to prominence once the question of authority had become relatively settled. After developing this argument, I continue by looking at the effects of military privatization on the ancillary jus ad bellum principles.

Right Authority Per the terms of the just war tradition, only those with the proper authority to declare war may justly initiate a war. The meaning of right authority itself has been the subject of some dispute. Some scholars suggest that right authority speaks to the rightness of the war itself, or to the authority’s acting on behalf of the population in a representative capacity. These interpretations propose extensions of right authority that the principle’s history does not support and that, in some cases, overlap with other principles. Henrik Syse and Helene Ingierd (2005) propose a number of procedural and normative principles that they associate with the concept of legitimate authority. Their third procedural principle suggests that the choice to use force “can only be justified . . . by those decision-makers who ensure that they receive a wide range of information before they reach the point of no-return,” a point that would seem to implicate elements of both last resort and reasonable chance of suc-

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cess. Likewise, their first moral principle embeds within legitimate authority the proposition that “decisions about armed force should represent the considered will of the people and serve its common good” (12). Their principle adds to the concept of legitimacy by incorporating a preference for democratic authorities, but it also folds elements of just cause into the issue of authority. Historically, the principle of right authority has addressed the question of which type of entity has the authority to declare war without passing judgment on the particular entity in any given case. This is the question that was a source of preoccupation for just war theorists and canon lawyers in the Middle Ages, when competing entities claimed political authority over people and territory. When the state emerged as the actor with authority over the use of force, the right authority question was whether the entity that initiated the war was a state, and not what type of state it was, and whether or not it was responsive to the preferences of its population. Prior to the emergence of the state as the dominant form of political organization, the question of authority was a difficult one that confounded medieval just war theorists. The complex system of overlapping political and religious authority described in the previous chapter allowed multiple claims of authority by feudal rulers and by the pope. It was only with Thomas Aquinas that right authority to declare war came to rest with the secular, political authority that was answerable to no other (Johnson 1999, 47). Aquinas also placed the question of right authority at the center of his discussion of jus ad bellum, perhaps in order to recognize its importance relative to other principles.

Legitimate Authority and the State Over time, the person of the sovereign came to be replaced by the depersonalized authority of the state. The rise of the state did not coincide neatly with its acquisition of what Max Weber would call a monopoly over the legitimate use of force. The model of the citizen military inspired by the success of the revolutionary French forces, more than the rise of the state itself, promoted the state’s conscious attempts to marginalize nonstate actors in warfare. The state’s monopoly over the legitimate use of force meant that other actors were, by definition, acting illegitimately when engaged in the use of force.

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Individual mercenaries were still involved in war, but their marginal position in the system reflected the marginal position within the international system that they had come to occupy. The state’s position in the international system was reflected in treatments of right authority, in which such authority came to be synonymous with the state (Calhoun 2002, 49). In the absence of other potential claimants, the principle of right authority could be used as a dividing line between war and other types of violence (Lackey 1989, 29). The emergence of international organizations potentially complicated the issue of right authority. The UN, as an institution, lacks sovereignty and the capability to carry out its decisions. Because it lacks these attributes, James Turner Johnson (1999) argues that the UN “as an institution cannot have a jus ad bellum in a fundamental just war sense” (61). Turner suggests the rights that the UN would have devolve to the states who actually carry out the decisions taken by the Security Council (62). The private market for force may be resolving one of these defects in the UN’s sovereign authority in that it gives the UN access to force that is independent from its member states. Because the UN lacks its own military force, member states carry out its operations. Either the UN would authorize a member state or a coalition such as NATO to undertake a military operation, or several states would contribute forces to create a multinational peacekeeping force. The rise of the private market for force provides an alternative to these models, and the UN has been hiring PMCs to perform a range of functions, including the provision of security, consulting, and logistical functions such as transport (Pingeot 2012, 24–26). However, the other defects in the UN’s sovereign authority that Johnson identifies remain. The UN adds an institutional layer to the question of right authority by virtue of the Charter restrictions on states’ right to engage in the use of force, even if the institution itself does not possess the right to go to war. The role of nonstate actors in the international system began to change with the growing significance of civil war, which raised some hard questions for the principle of right authority. If the state is the actor with the authority to declare war, then what is the status of groups seeking to overthrow or secede from the state? The growth of anticolonial wars, proxy wars supported by the superpowers during the Cold War, and other forms of civil conflict fueled growing civilian casualties, which during the latter half of the twentieth century eclipsed those associated with international wars. Beyond

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belligerents embroiled in civil wars, other nonstate groups are also, increasingly, engaged in the use of violence. As in Afghanistan, these actors may even rival the state in terms of their capabilities to the point that the state is weak vis-à-vis nonstate forces within their borders. Transnational criminal organizations do so for the purpose of furthering their economic interests, but other groups engage in the use of force for political purposes not unlike those that states pursue when they wage war. These types of entities speak to the marginalization of nonstate actors in the just war tradition, but they do not raise the same types of authority problems as the growing PMC market creates. PMCs differ from transnational criminal organizations, terrorist groups, and other nonstate actors engaged in the use of force because they do so pursuant to the authorization of the state. The growth of the PMC market has broken the state’s monopoly on the legitimate use of force, as Peter Singer (2003) and Deborah Avant (2005b, 253) have also argued. This is a much more significant issue that the question of a weak state confronting stronger rivals. PMCs are authorized, but not controlled, by states, making them the modernday equivalents of the privateers and mercenaries that the early states used prior to the state’s acquisition of a monopoly over the legitimate use of force. Privateers operated pursuant to a letter of marque received from a state, a document that distinguished them from pirates (though not always very effectively). Likewise, some states have set up licensing systems that regulate the right of companies to offer their services, and even their ability to enter into particular contracts. I briefly look at two states that have established these licensing schemes: South Africa, a significant provider of private force, and the United States, a leading producer and consumer of private force. South Africa, home to EO, was one of the first states to restrict its nationals’ participation in PMCs through the Regulation of Foreign Military Assistance Act 1998 (RFMA). Section 1(iv) of the RFMA banned outright mercenary activity, which was defined as “direct participation in armed conflict for private gain.” The RFMA created a licensing system for PMCs that permitted PMC activity, subject to the approval of the National Conventional Arms Control Committee (NCACC; Taljaard 2007, 173). The RFMA created a two-tiered system by which both the firm and the contract required governmental consent. In the first stage, South African residents or firms would seek authorization to enter into negotiations for the sale of their services. The NCACC would then make a recommendation to the

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defence minister, who would decide on whether the firm could enter into negotiations (section 4). In the second stage, individual contracts would also be considered in a similar process (section 5). Requests may be denied for reasons that include potential violation of South Africa’s international legal obligations or its national interests, destabilization of the region, or the general unacceptability of the contract. As a regulatory scheme, the RFMA faced some significant obstacles to the effective restraint of South African nationals and PMCs. The RFMA exempted humanitarian assistance from the licensing and approval requirements, prompting a number of firms to claim that they were engaging in other activities of a humanitarian nature (Caparini 2007, 171). Some South African PMCs that participated in the war in Iraq utilized this humanitarian exception (Taljaard 2007, 173). The definition of security services in section 1(iii)(b) is also very general, including services “for the protection of individuals involved in armed conflict or their property.” Compounding these definitional problems within the RFMA are the realities of lax enforcement. The Private Security Industry Regulatory Authority (PSIRA) polices a large South African PMC industry without sufficient resources to carry out this task. While the PSIRA has extraterritorial jurisdiction in theory, in practice it is unable to monitor the activities of South African PMCs abroad (Caparini 2007, 171). Because of these problems, South Africa replaced the RFMA with another piece of legislation, the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act 2006 (the Act). This piece of legislation regulates a broader range of activities. The Act prohibits mercenary activity, which it defines expansively to include the recruiting, training, and financing of combatants along with direct or indirect participation in armed conflict. This definition has several important consequences for the regulation of PMCs. First, the Act abolishes the exception for humanitarian activities, which was a key loophole in the RFMA. Without this exception, all firms that would offer military services must go through the same process of seeking regulatory approval. Second, where the RFMA applied only to countries in which armed conflict exists, the Act applies to any other country in which proclaimed or unproclaimed armed conflict exists. The Act defines the latter broadly to include conflict between any armed groups, a broader definition that closes another loophole in the previous framework. Finally, the Act also asserts jurisdiction

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over noncitizens who violate the provisions of the Act within South African territory. The Act requires anyone wishing to offer or provide mercenary services, which include functions associated with military provider and military consulting firms, to acquire government approval. The United States, both a producer and consumer of PMC services, treats PMC services as a form of military assistance, and regulates the provision of these services under a framework first developed to govern the export of armaments. The International Traffic in Arms Regulations (ITAR) of 1998 applies to “every person (other than an officer or employee of the US Government acting in official capacity) who engages in the business of brokering activities with respect to the manufacture, export, import, or transfer of any defense article or defense service.” Those wishing to engage in the sale of PMC services must first register with the Directorate of Defense Trade Controls within the State Department. Once the company has become eligible to participate in the market for force, it must also seek a license for the particular contracts for the provision of defense-related services, with the exception of certain US allies, which include NATO members, or the governments of Sweden, Japan, or Australia. Conversely, some licenses will be denied for reasons of arms embargoes or if the licenses are otherwise inconsistent with US foreign policy. In the case of contracts for services worth more than $50 million, additional oversight procedures apply. These contracts require a certification from the president and approval from Congress. It is important to note that this licensing under the ITAR is a once-andfor-all decision, and once a contract has been licensed, ITAR does not provide for any further oversight of that transaction between the PMC and its client.1 Congress has the right to continuing oversight of contracts worth more than $50 million, but what this means is that even the scrutiny of Congress can be avoided by structuring a transaction through several contracts worth less than $50 million rather than a single contract. Nevertheless, ITAR provides some measure of regulation and some contracts are disallowed,

1. It is important to note that within the US system, there are growing efforts to regulate the conduct of individual PMC employees through other regulatory frameworks, including most significantly the 2008 Defense Appropriations Bill, which subjects individuals working under contract with the Department of Defense to the Uniform Code of Military Justice, the same system used to regulate the conduct of US military personnel.

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including a proposed contract that would have called for MPRI to train the government of Equatorial Guinea, which was initially rejected over human rights concerns, though a subsequent contract was later approved after extensive lobbying by MPRI (Yeoman 2003). ITAR allows the US government to grant approval to certain PMCs and contracts while rejecting others. These licensing schemes suggest that while particular PMCs or particular contracts may be unacceptable to the state, PMCs as an entity are not inherently objectionable. In this respect, PMCs are like privateers authorized by the state through letters of marque. Not all private actors received this form of authorization from the state—and those who did not were pirates—but as a class of actors authorized to engage in the use of force, privateers were not unacceptable to the state. As a class of actors, PMCs enjoy a degree of legitimacy with respect to the use of force. Unlike privateers, PMCs provide a range of services beyond the use of force, but their military and security services resemble the use of force in which state actors engage. Additionally, even rather mundane functions (such as transportation or other logistical support) may require, at a minimum, the use of force in self-defense by virtue of the fact that they are carried out in an area in which there is combat. By offering services related to armed conflict, even those removed from the tip of Singer’s (2003) spear metaphor, PMCs engage in functions related to armed conflict that were once the exclusive domain of the state. The existence of a licensing framework does not imply that PMCs are mere agents of the state. States exert little control over PMCs once the contract has been signed. Certainly, if the PMC does not perform as it should, the state has civil remedies at its disposal and, increasingly, the right to impose criminal penalties that it can exercise against individual PMC personnel. These are legal remedies that apply after the fact, and stand in stark contrast to the control that the state exerts over its national forces, whose individual members are part of a hierarchical chain of command. PMCs are outside the chain of command, meaning that they cannot be given commands. The contract defines their obligation, and, in contrast to military personnel who cannot refuse lawful orders, a PMC may break its contract. Nor does it matter whether PMCs are acting in furtherance of state interests. Of course, PMCs sell their services to a variety of state and nonstate actors, but this is irrelevant to the issue of authority. Even supposing that the

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entirety of the PMC market acted in support of state interests 100 percent of the time, the state’s monopoly over the legitimate use of force would still be broken because PMCs are actors engaged in the legitimate use of force outside of state control. This act is inconsistent with the state’s continued possession of a monopoly over the legitimate use of force. The breaking of the state’s monopoly over the legitimate use of force has important implications for the principle of right authority. While authority has been associated with the state, this association emerged when the state wielded control over legitimate political violence. Now that the state’s monopoly has been broken, the institutional framework has changed. To the extent that jus ad bellum principles evolve along with the political institutions connected to warfare, the principle of right authority should reflect this change in the authority over political violence. Because a monopoly is binary—it either exists or not—the state’s loss of the monopoly over political violence opens the door for a range of other actors to legitimately engage in violent political activity. As such, the emergence of the PMC industry, and its breaking of the state’s monopoly over the legitimate use of force, has implications far beyond the growth of the PMC industry. The state/nonstate dichotomy and the state’s privileged position within it have meant that nonstate actors engaging in the use of force were, by definition, acting illegitimately even if they satisfied other jus ad bellum principles. Nonstate actors’ lack of right authority alone would be dispositive of the justness of their use of force. The privileging of the state stemmed from the institutional framework in which the state held a monopoly over the legitimate use of force. With the state’s loss of the monopoly over the legitimate use of force, these actors could potentially engage in the legitimate use of force as well, provided that they otherwise satisfy the jus ad bellum criteria for the just resort to war. The debate over distinguishing terrorism from war can be viewed as one manifestation of the state’s loss of its monopoly over the legitimate use of force. Several scholars have argued against the utility of terrorism as a concept on the grounds that terrorism cannot easily be distinguished from the state’s use of violence for political purposes (Bryan, Kelly, and Templer 2010; Held 2008; Shanahan 2010). Once state violence is no longer privileged over the use of political violence by other types of actors, the task of distinguishing terrorism from war becomes all but impossible.

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Legitimate Authority and Individual Right Aside from the question of who can legitimately declare war, right authority may also be determinative of the moral status of individual soldiers taking part in a war. Those just war theorists who considered only the sovereign’s intention to be relevant to the question of cause had no issue with the widespread participation of mercenaries. For instance, in the late sixteenth and early seventeenth centuries, when the use of mercenaries was still widespread throughout the European system, Francisco Suarez wrote: “The king must make a diligent investigation as to the justice of a war.” By contrast, Suarez finds that common soldiers “are in no wise bound to make diligent investigation, but rather may go to war when summoned to do so, provided it is not clear to them that the war is unjust” (359). The obligations of mercenaries are similar, with the exception of those who have bound themselves to the general service of a prince and placed their conscience in his. As a consequence of their emphasis on the determination by the sovereign, theorists like Suarez treated mercenaries as equivalent to other types of soldiers (Lynch and Walsh 2000, 139). In this view, the intention of the sovereign, by virtue of its authority, is the only relevant question with respect to just cause. Other just war theorists also considered individual intent. These questions of individual morality were considered by early figures in the just war tradition. Augustine (2006b), who predated the emergence of the state system by several centuries, wrote that a soldier who kills “acts as an agent of the law” and is therefore innocent of what would normally be a blameworthy homicide (75). Gratian would expand on this in his Decretum, writing that he disapproved of capital punishment except perhaps by a soldier or by someone held thereto owing to a public function, so that he does not do it for himself but for others, or for the city where he finds himself, having been conferred legitimate power in conformity with his person. (2006, 116–17)

The commission of this act in conformance with the command of a legitimate authority means, Gratian wrote, that the soldier who kills another cannot be accused of homicide (117). Under this view, killing by a soldier in

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wartime is removed from the category of homicide by virtue of the legitimate authority that has ordered the killing. For those just war theorists concerned with individual intention, most notably Aquinas, the motivations of individual fighters also came to factor into the ability of right authority to absolve those who kill or otherwise sin in the course of a war. Aquinas argued that to have recourse to the sword (as a private person) by the authority of a prince or judge, or (as a public person) through zeal for justice, and by the authority, so to speak, of God, is not to “take the sword,” but to use it as commissioned by another, wherefore it does not deserve punishment. (2006b, 177)

The nexus of individual intent and right authority absolves the soldier of the moral culpability he would incur if he were acting out of some other motivation like greed or in the absence of the command of right authority. Right authority, then, has implications beyond the rights of the sovereign to declare war; it also absolves the individuals fighting the war of any guilt for the normally blameworthy acts committed in the course of the war. By contrast, a conflict not declared by a proper authority was a strife, according to Aquinas (2006b), meaning a war between private persons, which he argued was always sinful (182). Much of the early development of this principle occurred during a time when mercenaries, the forerunners to today’s PMCs, formed large parts of state militaries. The practice of fighting for pay rather than the common good was widely seen as being at odds with this treatment of intention and right authority. Some thinkers took a very dim view of those who worked as mercenaries. Peter the Chanter condemned mercenaries as sinful because they made their living by killing the innocent (Russell 1975, 241).2 The political realities were that the armies of the Middle Ages contained large contingents of mercenaries, a fact that made it quite difficult for just war theorists to uniformly condemn their use. A more common approach was to distinguish between a permissible use and a forbidden abuse of mercenaries. The worst condemnations were reserved for routiers, bands of unemployed mercenaries who were thrown out of work by truces. To this end, the Third Lateran 2. Peter the Chanter did recognize an exception for a city that was the target of an unjust attack and that could only defend itself through the use of mercenaries.

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Council of 1179 characterized the routiers who ravaged Europe as “equivalent to heretics because they attacked churches and defenseless folk, sparing neither age nor sex” (quoted in Russell 1975, 189). This treatment of mercenaries reflected a widespread tacit acceptance of the employment of mercenaries, provided that they did not commit egregious abuses. As such, most efforts to curtail the use of mercenary forces aimed at regulation rather than prohibition. As thinking about war changed, and particularly with the elimination of private force, this idea of right authority came to assume a certain type of connection between the individual committing these acts and the authority that orders them. As mentioned in chapter 2, Rousseau saw mercenaries as tools of oppression who were opposed to the common cause, which could presumably garner popular support. Considering the widespread use of Swiss mercenaries in the Middle Ages, theologian Ulrich Zwingli echoed Rousseau and criticized “bloodthirsty, mercenary soldiers” (1906, 31), questioning the morality of fighting for hire. In contrast to the noble cause of those who fought out of patriotism, Zwingli asked, What sayest thou of the man who takes money and helps a foreign master to plunder, lay waste, and rob those who have done him no injury whatever; nay, who carries his sword to such masters whom it does not become to go to war at all, bishops, popes, abbots, and this, too, for vile money? (32)

These criticisms resonate in the present market for force and raise similar questions about the morality of participation in war. What is the connection between PMC personnel and their employers? As noted previously, nonstate actors also hire PMC personnel, which is particularly problematic. But even when a state or an international organization with the authority to use force hires a PMC, does it possess the right authority to do so, and does the PMC possess a sufficient connection to that authority to absolve its individual personnel of culpability for their participation in military operations? The participation of PMCs and their employees is admittedly marginal to combat in most cases. PMCs are more often performing support functions far from the tip of the spear, to use Singer’s metaphor. However, PMCs have previously participated in combat—most notably early companies like EO and Sandline—and closely related combat support functions like training. But the dividing lines between the functions in Singer’s model are not en-

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tirely distinct. PMCs that contract to provide noncombat services may find themselves under attack, and forcibly responding to that attack, by virtue of the fact that they often perform those services in a war zone. Additionally, even those PMCs hired to perform support functions have in certain cases committed acts that could be construed as immoral if committed by private individuals or, at the very least, contrary to the law of armed conflict that would apply to them if they were military personnel. Certainly this applies to “tip of the spear” PMCs, but even those PMCs that are performing logistical and support functions also have the potential to engage in conduct that would be classified as a war crime if committed by military personnel. In one infamous case, DynCorp, which the United States hired to train Bosnian police, was implicated in a sex slavery ring involving girls as young as twelve (Bures 2005, 541). In this instance, the misconduct was far removed from the task for which the PMC was hired. From a moral perspective, the relationship between the state and the military contractors who fight for profit is undeniably more complicated than the connection between the state and its citizens, who presumably fight (at least partially) out of patriotism and obedience to the authority of the state. While an extensive reliance on the former does not diminish the authority of the state to wage war, it does raise questions about the morality of PMC participation in war. If a connection between a soldier and the right authority’s having declared war is necessary to absolve the soldier of guilt, PMCs and their individual employees lack that connection. They are not citizens or even soldiers; they are more along the lines of employees. As private individuals, PMC personnel bear the moral responsibility for the actions that they commit in the course of their employment although, as I argue in the next chapter, they may not be the only responsible party.

Just Cause The jus ad bellum requirement that war be waged in pursuit of a just cause dates back to the earliest origins of the just war tradition. The causes considered to be legitimate justification for warfare have changed significantly over time, as outlined in the previous chapter. Past formulations of just cause have included, for example, punishment for a wrong inflicted (Gould 2009b). Alex Bellamy (2006) also included the concept of holy war within the just

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war tradition, further expanding the historical category of just cause to include defense of the Christian faith. In contemporary just war thought, the range of just causes for war is significantly more limited. National self-defense against an armed attack is the archetypical just cause for war. In Michael Walzer’s well-known formulation, aggression “is remarkable because it is the only crime that states can commit against other states: everything else is, as it were, a misdemeanor” (2000, 51). Because of the unique threat posed by aggression, he argues that forcible resistance to an act of aggression is presumed to be just (59). Johnson (1984, 19) treats self-defense as the only just cause for war. The primacy of self-defense is also recognized in Article 51 of the UN Charter, which allows individual and collective self-defense as the only explicitly acknowledged circumstance under which states can use force without Security Council authorization.3 This formulation of just cause as self-defense, even if it is taken to include collective self-defense and anticipatory self-defense, indicates the centrality of self-defense to the idea of just cause. Beyond national self-defense, violations of human rights can also provide just cause for war (Wheeler 2000, 34).4 Even Walzer (2000), who treats intervention as generally unjust because it interferes with a community’s right to self-governance (87), carves out an exception for humanitarian intervention in response to a government’s violations of its citizens’ human rights (101). Recent thought has suggested that the use of force in response to severe violations of human rights is more than a right of states to exercise when they choose. The responsibility to protect (R2P) doctrine encompasses a range of different types of actions in response to humanitarian crisis, but argues that the international community has a responsibility to intervene through the use of force in certain, particularly severe cases. According to R2P, sovereignty entails not just rights, but also responsibilities to secure individual human rights. While primary responsibility lies with one’s own state, the international community also bears responsibility to act when states are unable or unwilling to fulfill this responsibility. R2P encompasses 3. Any other justification seems to fall under the Charter’s general prohibition on the use of force found in Article 2(4). It is worth noting that even this permission to use force for forcible self-defense is intended only as a stopgap measure until the Security Council can take action. 4. Wheeler argues in favor of a right of anticipatory humanitarian intervention, parallel to the right of anticipatory self-defense, which would allow states to act before a humanitarian emergency develops.

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a range of different types of actions, reserving military intervention only for extreme cases. There is a tension within the content of the principle of just cause. While self-defense has a tendency to limit the permissible use of force to circumstances in which a prior attack has taken place, R2P can require that force be used if the triggering circumstances obtain. This tension is partly attributable to some of the same transformations within the international system that drive the rise of the PMC industry. The increased involvement of private actors in war does not alter the content of the just cause principle. However, privatization can pose real obstacles to careful deliberation about just cause. The effects of privatization are particularly evident when considered in light of Kant’s arguments about democratic peace. Kant (1991, 99) argued that states with republican constitutions were likely to be more peaceful than states with other types of governments because, in the republican system, those who bear the costs of the war make decisions about whether the state should wage war. In Kant’s words, citizens would be hesitant to commence a war that would entail calling down on themselves all the miseries of war, such as doing the fighting themselves, supplying the costs of war from their own resources, painfully making good the ensuing devastation, and, as the crowning evil, having to take upon themselves a burden of debt which will embitter peace itself. (100)

In contrast to a tyrannical state, in which the head of state who does not bear these costs decides about questions of war, the citizens of a state with a representative government would deliberate carefully about whether a state cause justifies their bearing these burdens of war. The concept of just cause presupposes a similar type of deliberation among those responsible for decisions about war over whether or not a cause is a just basis for fighting a war. Even in a state with representative government, those who make decisions about waging war may not be coterminous with those who do the fighting. In the US-led wars in Iraq and Afghanistan, more than half of those deployed were drawn from the transnational private market for force, not necessarily from the citizenry. The reemergence of PMCs creates distance between those who make decisions about war and those who do the fighting, thereby discouraging serious deliberation about the justice of a particular cause. The influence of privatization mirrors other changes within the US political and social system that make war seem more remote. Cheyney

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Ryan (2002/3, 17–18) has argued that the abolition of the draft and the introduction of deficit spending to finance wars have disconnected most citizens from the wars in which their nation fights, a process that he terms the alienation of war. The lack of personal connection of most citizens to decisions about war threatens to undermine the effects of democratic peace described by Kant. Citizens do not face a realistic prospect of being compelled to participate in war in the absence of having volunteered to do so. As such, these citizens do not have the strong personal motivation to weigh the question of war in the same way that they would if they were subject to conscription. Support for a war has few, if any, personal consequences for the citizens of the state contemplating war. If individual citizens in the state have little incentive to seriously consider the motivation for war, the restraining effects of democratic peace break down. Avant (2006, 511) has advanced an additional argument connected to the democratic peace dynamic, arguing that the growing use of private force privileges the executive branch over the legislature and reduces transparency, a development that also weakens the connection between citizens and the decision to go to war. The shift in favor of the executive branch is problematic with respect to Kant’s argument because the legislative branch is the component of democratic governance through which citizens’ interests are represented in government. In the US case, Congress has authority over the military and the military budget, but it does not exercise authority over contracts with PMCs. The executive branch and its agencies exercise sole discretion over the contracts between the United States and PMCs (511). Congress attempted to limit US involvement in Colombia, where the United States has become extensively involved mostly through the use of PMCs, by limiting the number of US firms that the executive branch could employ. However, the transnational nature of the market for force rendered this limitation effectively useless (512). Short of eliminating the military budget entirely, Congress has few tools by which it can restrain the executive branch’s use of PMCs. The cumulative effect of imposing distance between citizens and war and shifting authority away from the legislature is that decision making about war becomes more like that of a tyrannical government whose decision makers do not bear the costs of fighting themselves. The reprivatization of war likewise increases the distance between the citizens of a state and those who fight their wars. By virtue of their political distance from the state, PMC personnel are not perceived as part of the state’s

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military. In their piece on the costs and benefits of outsourcing security to PMCs, Allison Stanger and Mark Williams (2006, 8) include among the benefits of hiring PMCs the reduction of US casualties. US soldiers are part of the growing count of official casualties that are reckoned as part of the costs of war. Dead US contractors, by contrast, are covered on “page fiftythree of their hometown newspaper” in the words of PMC lobbyist Doug Brooks (quoted in Stanger and Williams 2006, 10). States have used the relative inattention that contractors draw to their advantage by using PMCs to carry out operations that would otherwise face substantial public opposition. In her description of nonstate violence in the early state system, Janice Thomson (1994, 43) argued that the use of nonstate actors like mercenaries and privateers was key to the state’s ability to wage war while minimizing societal resistance. Specifically, the use of private actors with no formal connection to the state allowed the sovereign “maximum freedom with minimum responsibility” (43). The use of private force, particularly on a very large scale as in Iraq and Afghanistan, distances the population from the war being waged. Citizens do not face a realistic prospect of fighting in the war under consideration unless they have joined the military or accepted employment with a PMC. This alienation of war reverses the dynamic to which Kant attributes the peaceful international behavior of democracies, as people are encouraged not to think about the justice of their cause. If they are not calling down the costs of war on themselves, then citizens will lose the personal motivation to take the justice of their cause seriously. Privatization does not bear on which causes are just or unjust, and in this sense it leaves the principle of just cause unaltered, but it may well bear on the seriousness with which deliberations about justice are taken. PMCs may also influence decisions about the use of force in other ways. While their role in providing combat-related services may be unique, in other respects PMCs are economic entities driven to seek a profit like other companies. PMCs will engage in the same type of lobbying behavior as other economic actors, seeking to maximize their economic gains (Leander 2006, 104). This typical corporate behavior has unusual implications, though, when we consider the types of services that PMCs provide, and the reality that their ability to provide such services depends on the existence of instability and conflict. Like their nonmilitary counterparts, PMCs will also attempt to shape preferences in a way that creates an increased need for

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their services (109). They seek to create increased demand by shaping public discourse about security-related issues. A particularly striking example is state failure. Gerald Helman and Steven Ratner introduced the concept of the failed state, an entity that is utterly incapable of sustaining itself as a member of the international community. Civil strife, government breakdown, and economic privation are creating more and more modem debellatios, the term used in describing the destroyed German state after World War II. As those states descend into violence and anarchy—imperiling their own citizens and threatening their neighbors through refugee flows, political instability, and random warfare— it is becoming clear that something must be done. The massive abuses of human rights—including that most basic of rights, the right to life—are distressing enough, but the need to help those states is made more critical by the evidence that their problems tend to spread. (1992, 3)

The periodical in which this piece appeared, Foreign Policy, now publishes an annual index of state failure. This index measures the degree of state failure according to a number of social, economic, and political and military indicators, and is produced annually by the Fund for Peace whose director previously served as a lobbyist for the PMC industry (Ross 2013). To return to Helman and Ratner’s language regarding state failure, the emphasis on the need to help failed states and the looming threat that they pose to other states in the system renders the states on the Failed States Index5 ripe for outside intervention, possibly by PMCs that the state will hire to support that intervention. State willingness to rely on PMC expertise specifically gives PMCs an invaluable opportunity to shape perceptions of an issue among the public and the policymaking elite alike. None of these dynamics alters the concept of just cause in the sense of altering which causes constitute a just basis for waging war. States will be as motivated to assess claims about just cause as they have ever been, despite the growing use of private force. However, the internal political dynamics are significantly altered with the growth of privatization. While privatization does not alter the content of this key jus ad bellum principle, it does bear on the manner in which it is applied to moral reasoning about war. One of

5. In 2014, the Fund for Peace renamed its “Failed State Index” to the “Fragile State Index.”

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the effects of privatization is to increase the psychological distance between decision makers and war, meaning that those who make the decision to go to war lack a compelling incentive to think seriously about whether a cause is just. Additionally, whether an issue is seen as one that raises a potential threat that requires the exercise of self-defense or as a crisis that implicates the responsibility to protect may well be influenced by the involvement of the private sector.

Privatization and Ancillary Just War Principles Just cause is necessary, but not sufficient, for a decision to wage war to be just. The lack of a just cause for war cannot be rectified by the satisfaction of these other ancillary jus ad bellum principles. At the same time, just cause alone cannot satisfy jus ad bellum if these other ancillary principles are not satisfied. Taken together, these ancillary jus ad bellum principles attempt to eliminate needless destruction even in pursuit of a just cause. Should a state have just cause for war but lack, for example, a reasonable chance of success in obtaining this cause through the use of force, then a war waged in support of this just cause would be quixotic and needlessly destructive. Just cause likewise cannot support a just war if the state asserting this claim has not exhausted the reasonable nonviolent alternatives for obtaining this cause because it could have obtained its just cause without resorting to war with all the destruction it will necessarily entail. To the extent that privatization can skew the application of these ancillary jus ad bellum principles, it also complicates the larger question of when waging war is just.

Last Resort This principle requires that actors engage in war as a last resort because of war’s “unpredictable, unexpected, unintended, and unavoidable horrors” (Walzer 2000, 155). Consistent with the just war tradition’s goal of limiting unnecessary violence, the state waging war must have exhausted its other nonviolent alternatives before engaging in the use of force. Unless a state has exhausted, or at least considered, other alternatives to the use of force, it may not resort to war when it could achieve its purpose through nonforcible

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means. This jus ad bellum requirement may be construed somewhat differently depending on the context. In a defensive war, when a state is the target of an armed attack, forcible resistance may be the only viable alternative apart from capitulation (Regan 1996, 64). Because of the immediacy of the threat, exploring other alternatives to the use of force would be impractical under those conditions because they would be unlikely to be effective. In a context other than defense against an immediate threat, though, the requirement of last resort becomes significantly more exacting and it demands that states exhaust other alternatives before they resort to the use of force. If interpreted literally, this requirement would make any resort to war all but impossible (Walzer 2000, 88). As Laura Sjoberg argues, a literal interpretation of this requirement would mean that an actor would never be able to fully exhaust the infinite number of political choices which could be seen as alternatives to war, requiring solutions like: “give the opponent a puppy,” “change your mind,” “exchange a few citizens,” “cede your government to theirs,” and “Mediate for a thousand years and see if it changes; no? try one more.” (2006, 82)

Most scholars agree that last resort requires that a state exhaust its reasonable alternatives (Lango 2006, 8). Lango further contextualizes the meaning of reasonableness based on the specific alternative under consideration. The particular standard of reasonableness reflects feasibility, or the expectation that the alternative will be successful, and what he calls “awfulness,” or the harm that the alternative is likely to inflict (13–16). Bellamy argues for an even less literal interpretation of last resort in which this principle “demands that actors carefully evaluate all the different strategies that might bring about the desired ends” (2006, 123) and opt for force when it is the only feasible strategy obtaining the just cause in question. While the principle of last resort directs states to exhaust reasonable nonviolent alternatives to war, the principle should not function to prevent states from waging just wars of selfdefense or humanitarian intervention. The principle of last resort requires that states make an assessment about the feasibility or reasonableness of alternatives to war. The effect of privatization on calculations about last resort can be ambiguous. Certainly, the ability of states to contract with PMCs for additional capabilities might make

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war a feasible option, in military or political terms, where it was not practicable before. Without the availability of private force, the state may be literally unable to wage the war it seeks to fight. Sierra Leone’s employment of EO to lead its fight against rebel forces made resistance a possibility where it was not before, ultimately prolonging the conflict. Prior to EO’s entry into the conflict, the rebels had drawn nearly within sight of the capital. Once EO entered on the side of the government, the RUF was quickly subdued. A weak state like Sierra Leone, one which resorts to private force out of necessity, might find nonforcible alternatives less reasonable with the ready availability of PMCs. States that turn to private force by choice might make use of private force may help to evade political obstacles that would undermine the war-fighting effort. As in the US use of PMCs in the former Yugoslavia and Darfur, the employment of private actors can help to avoid many of the political costs that sending national forces would entail. As Avant (2006, 512) has argued, the executive branch might resort to private force as a means of avoiding legislative oversight. This possibility, again, serves to make the option of using force more attractive than it might otherwise be. The option to use force, which may have been impossible for states that lack the military capabilities to do so, or politically improbable for states that lack the public or legislative support to do so, becomes an option that is significantly more attractive with the availability of private force.

Reasonable Chance of Success If the state waging war does not have a reasonable chance of successfully obtaining its just cause, then the violence and destruction created by the war would be evils unmitigated by the achievement of any just outcome and this renders the war unjust. While even an otherwise just war should not be undertaken without a reasonable probability of success, what success means is open to interpretation. Success could mean either military success—the “overthrow of the enemy” in Clausewitz’s terms—or the achievement of war’s legitimate ends (Walzer 2000, 110). These two interpretations of success are, ultimately, somewhat related to one another. The attainment of these legitimate ends that justified the war often requires military victory. Because of this, assessing the chance of success often requires making some estimate of

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the opposing side’s military capabilities and an assessment of whether those capabilities can be overcome. These determinations are inherently difficult, but privatization further distorts these calculations of whether or not military victory can be achieved by making the opposing state’s capabilities substantially more difficult to assess. PMCs can significantly alter the national military’s ability to wage war to the point that they alter the outcome of the war. The ability of any state to supplement its own forces by contracting with PMCs means that estimating the probability of success becomes significantly more problematic. Most of the functions that PMCs might perform on behalf of the state that hires them may seem quite innocuous and removed from combat, particularly when compared to the earlier market for force in the Middle Ages in which state militaries consisted largely of mercenaries (Avant 2005b, 30). Singer’s (2001, 200) spear metaphor, in particular his division of PMCs into those providing 1) implementation/command services, 2) advice and training, and 3) supplementary services is helpful in terms of analyzing how PMCs might contribute to a state’s success in waging war. While PMCs perform a wide array of functions, and most of them are removed from combat, or the tip of the spear, all of these functions contribute to a state’s ability to wage war and therefore distort calculations about the reasonable probability of success. Of course, some PMCs do perform tip-of-the-spear functions that are force multipliers, meaning that they have a direct effect on the ability of the state employing them to wage war with greater effectiveness (Singer 2001, 201). EO clearly had this sort of impact in Angola. The government hired EO to help it recapture the oil-rich area of Soyo from National Union for the Total Independence of Angola (UNITA) rebels. With two Angolan battalions and eighty of its own employees, the EO-led force quickly gained control of Soyo, but after EO withdrew, the Angolan battalions were unable to maintain control over this area (Shearer 1998, 46). The starkly differing results of Angola’s military operations with and without EO dramatically underscore the impact that this class of PMCs can have. Employees of these PMCs become interspersed with the military personnel of the state, providing leadership and experience and making the client state’s military more effective than it would otherwise have been (Singer 2001, 201). The difference between capabilities of the Angolan military with and without the assistance of EO not only demonstrates the impact of PMCs as force multipliers, it also points to the difficulties that tip-of-the-spear PMCs can pose for assessing

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the reasonable chance of success. From UNITA’s perspective, facing an Angolan military working with EO would be a vastly different proposition compared to facing the Angolan military without that assistance. The possibility of success against the unaugmented Angolan military was substantially greater than the possibility of success against the Angolan military fighting with EO. While such tip-of-the-spear firms are rare, these services more directly complicate calculations about the probability of success. The tip-of-the-spear PMC functions clearly distort moral reasoning about the reasonable probability of success, but even as PMC services become further removed from the tip of the spear, or implementation and command services, they nevertheless contribute, sometimes substantially, to a state’s capability to wage war. In part, their impact derived from the fact that these training and logistical functions became military functions, performed by soldiers, with the rise of modern armies (Avant 2004, 153). Even when PMC employees perform these functions far removed from the tip of the spear, they free up soldiers for duty on the front lines who would otherwise be performing those support tasks (Cleaver 2000, 136). This reallocation of support tasks makes it possible for a state to fight a war with a smaller number of military personnel or even to fight wars that it would not have otherwise been able to fight (“Complex Irregular Warfare” 2006, 413). The involvement of EO in Angola suggests that PMCs can make victory much more likely than it would otherwise be and, in any case, makes the calculation of the probability of success significantly more difficult. But even when PMCs are not engaged in combat, they nevertheless distort state capabilities and complicate the application of the reasonable possibility of success principle. Assessing the impact of PMCs on a state’s ability to wage war is complicated by the fact that more PMC involvement does not necessarily equate to enhanced military effectiveness. As Molly Dunigan (2011) argues, the effect of PMCs on the effectiveness of national militaries can vary depending on the extent to which PMC personnel are integrated into the national forces they are meant to augment, the degree to which the identities of each group are cohesive, and the extent to which the PMCs and their personnel operate in accordance with international humanitarian law. Particularly for democratic states, which are Dunigan’s focus, private forces can diminish military effectiveness where they are used alongside state forces, due to differences in the structure and identity of the two groups. Where PMC personnel are deployed in place of national forces, the structural issues and the conflict

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between the identities of private and national forces disappear, making PMCs as effective (but not more so) as the national forces of the democratic state. The inconsistency in the impact of private force further complicates the question of reasonable chance of success because the impact of private forces entering a conflict will vary, in part due to the nature of the state that hires them and the manner in which they are used. While hiring a firm like EO clearly enhanced the effectiveness of Sierra Leone’s military, this type of effect would not necessarily be universal. Finally, it should be noted that poverty is not necessarily a bar to procuring the services of PMCs, so the complications with respect to reasonable probability of success exist across the spectrum of states from rich to poor. As described in chapter 1, in 1995, the NPRC, the government of Sierra Leone hired EO to help it fight off the RUF, which had made significant territorial gains particularly in mineral-rich areas. Widespread speculation suggests that Sierra Leone paid for EO’s services partly through mineral concessions. EO had at a minimum a cooperative relationship with (Shearer 1998, 43) and at most corporate ties to energy and mineral interests (Howe 1998b, 309). Along with approximately thirty-two other companies, EO was part of Strategic Resource Corporation, which engaged in “security services for private and corporate clients, in air charter, and, directly or indirectly, in mining” (Harding 1997, 88). EO also had a connection with the BranchHeritage Group, which included a number of companies engaged in mining or oil exploration, particularly in areas of political instability (Shearer 1998, 44). In the case of Sierra Leone, Branch Energy (another company within the Branch-Heritage group) reportedly received a gold concession and at least two diamond concessions, in addition to a concession for a kimberlite formation (Harding 1997, 93). The financial arrangements among EO, Branch Energy, and Sierra Leone’s government generated considerable speculation, which included the possibility that Branch Energy was subsidizing EO for the purpose of obtaining mineral concessions (93). David Shearer (1998, 52) maintains that Sierra Leone paid EO in cash, but acknowledges that EO performed its services in areas rich in mineral deposits, in part because these resources are an important source of revenue to pay for these services (40).6 In the particular instance of Sierra Leone, Shearer 6. Shearer also suggests that these mineral resources often drive or exacerbate conflict, providing a further connection between the presence of mineral resources and PMC activity.

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claims, the government built payments to EO into its budget, intending to pay for them out of increased mineral revenues (52). However, as Ulrich Shannon points out, “many Executive Outcomes officials earned their stripes under apartheid in the Civil Co-operation Bureau, a department of the South African National Defence Force responsible for establishing frontcompanies to circumvent trade sanctions against Pretoria” (2002, 36). Moreover, the deal between EO and Branch Energy was initiated by directors of the Branch-Heritage Group (Dokubo 2000, 58). While the exact nature of the transactions among the government, EO, and Branch Energy remain unclear, EO did succeed in stabilizing the political situation so that Sierra Leone could hold elections, though the gains were short lived. After the civilian government produced by these elections was ousted by a military junta, the Armed Forces Revolutionary Council, that promptly allied itself with the RUF (Cleaver 2000, 142). EO’s departure from Sierra Leone was a condition of the peace agreement between the government and the RUF. Sandline, the sister company to EO that replaced the latter in Sierra Leone, also sought payment in the form of mineral concessions. In 1997, Papua New Guinea hired Sandline when the government became the target of a separatist movement (Singer 2003, 177). The Bougainville Revolutionary Army (BRA) sought control over the Panguna copper mine because of the economic and environmental issues surrounding the management of the mine (Singer 2003, 192). Papua New Guinea had previously received the majority of its military aid from Australia. When Australia refused to provide it with the training and equipment it requested, partly because of human rights concerns, Papua New Guinea turned to the market. Papua New Guinea, an impoverished state, had been economically dependent on foreign aid and exports from the copper mine over which the BRA sought control. Sandline asked the Papua New Guinea government for partial payment in the form of a concession from the Panguna copper mine which, ironically, had been the cause of the initial dispute between the government and the BRA (Sheehy et al. 2009, 82). The government and Sandline reached a deal for Sandline to provide training, gather intelligence, and conduct offensive operations against the BRA (Singer 2003, 193). Because of the location of the mine within rebel territory and the context of similar agreements between EO and African governments, Singer writes that “many theorize that a broader arrangement had been reached,” including partial ownership of the Panguna copper mine (193). Despite its deal with Sandline, opposition to the

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government became so widespread (in part because of details about the contract with Sandline that had been leaked to the public) that the president ultimately resigned and Sandline personnel quietly left the country (195). With respect to the problem of assessing the probability of success, this incident underscores the fact that this calculation, always somewhat problematic, becomes more difficult when even the poorest states can hire additional force to augment their own capabilities. Privatization of any functions along the tip of the spear could mean that the opposing state will have capabilities substantially greater than those that its unassisted military possesses. The meaning of these capabilities can serve to make war either more or less likely. The military may be more willing to wage war if victory seems more certain, or the potentially enhanced capabilities may serve to deter an attack in certain types of conditions, such as state failure. In either case, the sometimes significant capabilities of PMCs augment and enhance the capabilities of the states that hire them, and almost any state is capable of hiring PMCs to supplement the capabilities of its national military forces. For purposes of making the jus ad bellum assessment of the chances of success, when possible the capabilities of the PMCs working with states should be imputed to those states. Because relationships between PMCs and the states that hire them change, this is an assessment that would need to be revised as circumstances change. The synthesis of state and PMC capabilities reflects the strategic realities of privatized conflict and the effects of PMCs as force multipliers. In addition, it best satisfies the spirit of this jus ad bellum norm, which seeks to limit the destructive resort to force when this force cannot achieve its purpose. To assess the probability of success based on state capabilities alone would likely permit the use of force where it would create damage and destruction without achieving the war’s underlying (and, presumably, just) cause.

Proportionality The principle of reasonable possibility of success delegitimizes military ventures that have no real possibility of achieving their goal. Even where the cause is just and success is possible, a war may nevertheless be rendered unjust if it causes more harm than good. This idea is expressed in the jus ad bellum principle of proportionality. One of the more eloquent expressions of

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the idea behind proportionality is found in Shakespeare’s Troilus and Cressida, which Walzer quotes in his own discussion of this principle. Debating the justice of the Trojan War, and the surrender of Helen in particular, Hector expressed doubts about whether the war’s benefits outweighed its costs by saying to Troilus, “Brother, she is not worth what she doth cost” (quoted in Walzer 2000, 120). To state this principle somewhat more plainly, proportionality recognizes that even a successful just war both achieves its just cause and causes damage in the process; proportionality demands that the good effects outweigh the bad effects of a war. Any attempt to assess a war’s proportionality raises the question of which costs and which benefits should figure into this moral calculation. While states may be tempted to think only about their own costs and benefits, proportionality encompasses the total costs born and benefits enjoyed by all parties to the conflict. In a war justified as a humanitarian intervention, for example, all states involved would bear costs but the target state would reap the lion’s share of the benefits, the alleviation of the humanitarian crisis. Likewise in a war of self-defense, the benefits will accrue primarily to one side while both sides will suffer losses. For purposes of assessing the proportionality of that conflict, just war theory considers the total costs and benefits of that intervention without regard to their distribution between or among the actors involved. The type of assessment mandated by proportionality is, by necessity, a complex question that entails a number of related considerations. A judgment about proportionality actually entails three distinct judgments that must be balanced against one another: (1) a value judgment about the worth of the cause that purports to justify recourse to war; (2) factual judgments about the war’s likely casualties and costs; (3) a value judgment about the proportional worth of the war’s cause in relation to its likely casualties and costs. (Regan 1996, 63)

Each of these separate judgments, and their combination into an assessment of proportionality, means that the costs and benefits that ensue from a war can be difficult to calculate, particularly in advance. The just cause itself may turn out to be more or less valuable than expected. These difficulties stem from the problems in valuing, for example, the continued existence of a political community and perhaps the continued value of its members’ lives, or

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in comparing that value to the lives and resources lost in securing it. The number of lives and resources consumed in a war is also difficult to estimate in advance of the war. Because of these difficulties, identifying a precise point at which the costs of war outweigh its benefits, so that the state can remain within the bounds of proportionality, is an impossibility. Instead, proportionality provides more effective guidance when this requirement is clearly not met. In other words, wars that are disproportional, in which the harm vastly outweighs the good achieved, may be more easily recognizable than those that are proportional (Orend 2006, 60). The inherent difficulties in assessing the proportionality (or, perhaps more precisely, the lack of proportionality) of a conflict are compounded by the growing privatization of warfare. Because PMCs are nonstate actors, they are often subject to less scrutiny than public actors. For but one example, the treatment of casualties among soldiers and PMC personnel bears out the lobbyist’s statement quoted above, which alleges that a PMC employee’s death is less notable than a soldier’s. These deaths are treated differently depending on an individual’s status and where that status places him or her relative to the public/private divide between state and nonstate actors. In the 2003 Iraq war, in which PMC employees outnumbered soldiers, the Pentagon is not tracking the injuries or deaths among PMC personnel, despite the fact that numbers place their involvement on par with that of the national military. The exclusion of PMC personnel from casualty figures means that their losses are generally unrecognized in terms of official, public calculations of the war’s cost. Casualties among PMCs are being somewhat loosely tracked by the US Department of Labor, which has been keeping figures on the number of civilian contractors killed. As of August 20, 2007, 1,001 PMC personnel had been killed in the Iraq war. Because the figures are compiled through data reported by PMCs and PMCs are under no obligation to report injuries or deaths, these figures are an unreliable measure of losses among PMCs (Pincus 2007). In addition, the fact that the market for force is transnational means that the Department of Labor data is certainly incomplete. They are certainly less accurate than the figures kept on military deaths. Nevertheless, even this (probably) low figure is a significant number of casualties when compared to the public losses among military personnel in Iraq. Because the casualties suffered by PMCs are not considered among the public costs of the war, and PMC casualties are valued less than casualties among soldiers, proportionality becomes even more difficult to assess. These

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losses within the private sphere may be enough to render an otherwise proportional war disproportional, but the fact that these losses are unrecorded and largely unnoticed prevents this assessment from being made with even the semblance of accuracy. Based on the prevalence of PMC personnel in conflicts like the Iraq War, it is safe to assume that a significant portion of the actual losses associated with privatized war occur behind the opacity of the private sphere. The available information suggests that this is so. But because these losses occur within the relatively hidden private sphere, they are generally ignored and certainly de-emphasized relative to the losses among state militaries. PMC casualties generally attract public notice only when they occur in a highly visible or gruesome fashion, as was the case with the Blackwater contractors who were killed, burned, and hanged in the Fallujah ambush (Barstow 2004). Absent such a highly visible incident like these gruesome killings, PMC losses are generally overlooked. Because PMC employees work in the private space of the market, they also suffer and die there, largely outside of public notice. Without at least somewhat accurate information as to the costs of the war, judging the proportionality of that war becomes a nearly impossible proposition and strips the principle of its utility. The part of the conflict that occurs within the relatively hidden private sphere and is conducted by nonstate actors like PMCs undermines the effective application of the principle of proportionality to the war waged by the state actor. The losses presented as the costs of the war are a very partial picture of the true cost of the war.

Purpose of a Just War Is a Just Peace A just war is one that seeks to reestablish a just peace. This is a goal that is inconsistent with the economic interests of PMCs. Writing about mercenaries in 1526, Martin Luther observed that a man whose intent was to acquire wealth rather than to serve the common good “is not happy when there is peace and not war. Such a man strays from the path and belongs to the devil, even though he fights out of obedience for his lord and at his call” (2006, 272). Like their mercenary predecessors, contemporary PMCs also profit more from conflict and instability than from peace. Beyond this mere connection between war and profit, PMC activity may influence both the beginning and the end of wars in ways that bear on this norm. In addition to the provision of services, PMCs may help to shape state

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interests so as to create a greater demand for those services by helping to shape how issues are perceived. In this respect, Anna Leander (2005, 804) argues, PMCs shape policy in addition to implementing it. Like any economic entity, PMCs have an interest in creating the demand for their services. Citing former US vice president Dick Cheney’s ties to Halliburton as the quintessential example, Leander argues that “even if formal decision making power remains with governments PMCs are becoming significant actors because their closeness to governments works not only to give governments a say over the firms, but also the other way around” (808). Beyond their influence over the formal power to decide about issues of security, PMCs wield an epistemic power when they help to define issues and set the security agenda (811). Once war has broken out, PMCs have, at the very least, an economic interest in the continuation of the conflict if not motivation to actually prolong it. Shearer observes that “a lucrative contract may itself act as an incentive to prolong violence and ensure larger payment” (1998, 70). These economic incentives may have translated into prolonged conflict in at least one instance already. Herbert Howe (1998a, 4) alleges that private soldiers deliberately prolonged Nigeria’s civil war by refusing to bomb Biafra’s airport for the purpose of increasing their salaries. Instances of PMCs prolonging conflict unnecessarily for their own profit are difficult to pinpoint because of the questions of motivation involved and because it is difficult to assess, counterfactually, when a war would have terminated had the PMC been more diligent in prosecuting the war. At the very least, PMCs have a “powerful incentive . . . to sustain the conditions of instability that create the demand for their services” (Shannon 2002, 39). Nevertheless, the incentives created by the economic relationship between the PMC and its employed strongly suggest the potential for this scenario. Related to this jus ad bellum principle regarding the achievement of a just peace is the emerging category of just war norms, jus post bellum. Drawing on Kant’s work, Brian Orend (2000) suggested that just war analysis does not terminate with war’s end. This body of principles suggests that the postwar environment, like the decision to wage war and the conduct of the war, should also fall within the scope of just war thought. Like jus ad bellum rules, jus post bellum norms are formulated in statist terms: “what should a just state aim at with regard to the ends of a just war?” (224) While a full development of these principles is beyond the scope of this chapter, the problems that privatization poses for this jus ad bellum principle can spill over into jus post

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bellum rules. Particularly problematic is the question of just cause for termination. Orend argues that the just state may fight until its rights are vindicated, but no further or the otherwise just war spills over into aggression (225). These limits mean that “a state has just cause to seek termination of the just war in question if there has been a reasonable vindication of those rights whose violation grounded the resort to war in the first place” (232). The termination of the conflict is a precondition for other important jus post bellum goods, including order, justice, and conciliation (Patterson 2007, 41–48). To the extent that PMCs have interests other than the timely termination of the just war, namely the extension of their own employment by the state that has hired them, their interests are best served if the otherwise just war crosses the boundary into aggression and these other jus post bellum goods may then be denied. If Leander (2005) and Avant (2006) are correct that PMCs can also shape policy, then PMC involvement threatens the establishment of a just peace, which this jus ad bellum principle requires, as well as the attainment of important jus post bellum goods.

Applying Jus ad Bellum Rules to the Privatized War Many of the jus ad bellum rules discussed above existed in some form prior to the emergence of the state system and, in some cases, were shaped by the prevalence of private force in the pre-Westphalian system. As part of a moral tradition that predates the state, these principles are not inherently statist. However, because the state is the dominant moral actor in the international system, and exercises a monopoly over legitimate force, these jus ad bellum rules have converged around the state. To characterize the state as the dominant moral agent in the international system is not to ignore the emergence of nonstate actors, many of which now participate in the international system independently of that state system. On the contrary, many of these actors—PMCs included—now perform many of the functions that, in the post-Westphalian era, have been exclusively associated with the state (Ferguson and Mansbach 2004). Even in the area of political violence, the state no longer enjoys a complete monopoly, nor do nonstate actors engage in political violence exclusively on behalf of state actors as PMCs generally do. The United States has characterized itself as being at war with terrorism, with the primary focus centered on the Al-Qaeda organization, a transnational

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terrorist network. Israel’s war with Hezbollah, another nonstate actor, mirrors aspects of this conflict. Eric A. Heinze and Brent J. Steele (2009, 1) point out that the capabilities of nonstate actors like Hezbollah and PMCs are “state-like” with respect to the use of force. Heinze and Steele are correct that in functional terms, the role of state and nonstate actors are beginning to converge. Nonstate actors now fight on behalf of states, other nonstate actors, and sometimes (as in the case of Hezbollah) their own interests. This convergence undeniably alters the political context within which the state operates, but a focus on capabilities or functions alone obscures compelling reasons to maintain a focus on the state. Particularly with respect to the jus ad bellum decision to go to war, the state continues to occupy a key position in the international system. Despite the increasing pluralism of actors within the international system, and even within the realm of political violence, the culture of that system remains undeniably statist (Wenar 2002). This statist public culture is an important source of ethical norms, and represents one of the few value commitments that states with diverse public cultures of their own can share. Absent this value consensus, any norms that states would impose within the international system would be arbitrary and lacking in legitimacy. This statist public culture persists despite the increasing significance of nonstate actors with respect to many issues, including the use of force. As such, the state remains the moral agent in the international system, and norms are appropriately formulated in statist terms (Eckert 2006). Decisions about waging war, in particular, remain moral and political decisions that are firmly within the grasp of states, whether they act unilaterally or in concert with other states (in a venue like the UN Security Council, for instance). States may augment their own capabilities with PMCs either out of necessity or by choice when they wage (or threaten) war, but the authority to make the decision about whether or not to go to war remains in the hands of state actors. Individually or collectively, states are still in the position of making the decisions governed by jus ad bellum rules. Despite this, any meaningful moral evaluation of war must now look beyond the state. As the foregoing discussion has shown, looking at state action alone would provide us with only a partial picture of any privatized conflict. Applying jus ad bellum rules to states alone would tell us little about the justice of this conflict. Instead of being viewed in a vacuum, the actions of the state must be considered within the increasingly privatized

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context within which the state wages war. This context completes the partial picture provided by state action alone, and instead fills out a picture of the war in its totality, creating a complete image of any particular war to which just war principles can be meaningfully applied. To return to the issue of proportionality as but one example, only a calculation of war’s costs that includes both public and private losses can provide a fair and complete picture. This complete picture is the only way to reasonably estimate what a war has cost and how those costs relate to what has been achieved by a war. There is no reason to believe that the state will always maintain the position that it currently holds in the international system. Wars were fought and judged well before the emergence of the state, and the fighting and assessing of wars will continue whether or not the state remains the dominant form of political organization. Already important changes have taken place within the state system, particularly in light of the emergence of nonstate actors including PMCs. Aggregating the effects of the state and the new context within which it operates takes into account both the state’s position and the real changes in the context within which it operates. For purposes of assessing a war’s satisfaction of jus ad bellum principles, treating states and the PMCs, which are effectively their agents, as a single entity reflects both aspects of this complex reality: the continued primacy of the state in the decision to wage war and the growing role of PMCs in the fighting of the wars that states wage. With respect to jus in bello rules, some system of shared responsibility (in which PMCs and their personnel are also responsible for violations) is more appropriate. As long as jus ad bellum decisions remain in the hands of state actors, though, the states that decide whether or not to fight are the actors who should form the primary focus of these rules. PMCs become, at least temporarily, part of the state’s capabilities. Therefore, imputing their contribution to the state’s war effort to the state that has hired them is the only way to insure that all of the capabilities at the state’s disposal and all of the losses incurred in the process of the state’s prosecution of its war effort are appropriately considered. Because of the transitory nature of the economic relationship between a state and any particular PMC, the assessment of the joint action between the state and its hired force must by necessity be continuous. This would be especially important, again, with proportionality, but also with respect to the reasonable chance of success. A state may contract for additional force, making success less likely for its opponent. The ease with which states can

Table 2. Privatization and jus ad bellum norms Principle

Preprivatization

Postprivatization

Right authority

Only an entity with the legitimate authority to wage war can justly wage a war.

Just cause

A just war must be fought for a just cause, including self-defense as well as humanitarian intervention. Before war can be waged justly, every reasonable alternative must be explored.

The rise of private force has broken the state’s monopoly over the legitimate use of force. As such, authority to use force has become more diffuse and the right to do so may extend to other communities within the international system, provided that they meet the other jus ad bellum and jus in bello criteria. A just war must be fought for a just cause for which a state would be willing to risk the lives of its own nationals, even if in practice they resort to the market to wage war. States must explore all reasonable nonviolent alternatives before resorting to war, and must not be swayed by the availability of additional private force. The state may only justly wage war when it has a reasonable chance of obtaining its objective. In assessing the chance of success, the state must take into account both the capabilities of the national military and any PMCs that the state may be able to hire. The good effects of the war must outweigh the evil effects, including costs among PMC personnel.

Last resort

Reasonable chance of success

Unless a war has a reasonable chance of achieving its just cause, the destruction it causes is an unmitigated evil and the war is unjust.

Proportionality

The destructiveness of a war must not be out of proportion to the just cause it attains. A just war is fought with the goal of attaining a just peace.

The purpose of a just war is a just peace

The purpose of a just war remains the attainment of a just peace, but the achievement of this goal may become complicated with the introduction of self-interested PMCs.

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hire PMCs, or with which PMCs can subcontract their duties to other PMCs, means that the strategic landscape to which the strategic criteria apply can change almost continuously. Under such circumstances, the justice of the decision to wage war would needs to be reassessed. Jus ad bellum criteria are unhelpful as onetime assessments rather than standards which are applied to war on a continuous basis. This idea reflects the fluid nature of any particular war, but this fluidity becomes even more pronounced when the state and PMCs are waging war together. The assessment of jus ad bellum criteria should not be a once-and-for-all proposition, but instead must be ongoing as the circumstances of war evolve. This is particularly so with respect to privatized war, in which the capabilities of states can change with a signature on a contract. Especially in the case of privatized wars, jus ad bellum criteria must be applied throughout the duration of the war.

Jus ad Bellum Principles for Privatized War The realities of privatized war and the need to consider states and the PMCs they hire together mean that the conventional formulations of jus ad bellum principles require some revision. The revisions I propose here, which are summarized in Table 2, reflect the cooperative relationship between states and private actors with a view to restricting the unjust use of force. These reformulated jus ad bellum criteria also acknowledge the changes to the strategic context that result from privatization. Finally, these reformulated principles also reflect the just war tradition’s overarching purpose, which is to limit the legitimate use of force by states to instances in which states fight for and can attain a just cause. The reformulated principles that I propose are as follows: 1) Legitimate authority: A just war can only be waged by an actor with right authority. Because PMCs are able to use force legitimately, they have broken the state’s monopoly over the legitimate use of force. Authority to engage in the use of force now extends beyond the state to other communities that engage in political violence, provided that they satisfy other jus ad bellum and jus in bello criteria. The focus on political violence excludes groups like transnational criminal organizations, which may use force for their own private gain rather than a political purpose.

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2) Just cause: A just war is fought for a just cause. Just cause for war includes self-defense (including collective self-defense) against aggression and intervention to remedy gross violations of human rights. The use of PMCs may discourage serious deliberation about the justness of a particular cause for war, but those considering waging war should consider the cause as if the citizens of their state will be doing the fighting in the absence of any PMC activity.7 3) Last resort: For a war to be just, the state waging it must not have had a reasonable nonviolent alternative for attaining its goal. While privatization may make the use of force easier than it would have been in the absence of PMCs, this does not relieve the state of the burden of at least considering all reasonable nonviolent alternatives to war. 4) Reasonable chance of success: A war is only just if the state waging it has a reasonable chance of achieving the just cause that motivated the war. Assessing the chance of success means that the state contemplating war should consider not only the capabilities of the states involved, but also the capabilities that the states might hire on the private market at various points throughout the duration of the conflict. 5) Proportionality: The costs of a just war, including the costs that private actors bear, must be proportional (or at least not disproportional) to the benefits attained by the war. Casualties among PMC personnel should be treated as equivalent to casualties among members of national military forces for the purposes of assessing costs. These universal casualties should not be disproportionate relative to the goods attained for interested parties 6) Purpose of a just war is a just peace: A just war is fought for the purpose of attaining a just peace. The economic interests of PMCs in the extension of a conflict and in the militarization of security issues may place them at odds with this goal. Because of this conflict of interest, the state must maintain its focus on the attainment of a just peace as defined by jus post bellum rules.

7. This is a variation on Cheyney Ryan’s principle of personal responsibility.

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This reformulation of conventional jus ad bellum rules recognizes the continuing primacy of the state in decisions about waging war. However, it also takes into account the increasingly privatized context within which the state makes these decisions. Reliance on PMCs has become so pervasive that the state’s conduct in war cannot be adequately understood without taking into account the contributions of these private actors to the war effort. At all points along Singer’s spear, private actors are involved in the fighting of wars, and their participation alters the empirical context to which the just war principles apply. PMCs have the potential to add significantly to a state’s capabilities, and can also distort the anticipated costs and benefits of going to war. Finally, these criteria reflect the overarching goal of the just war tradition, and more specifically jus ad bellum criteria, which is to limit the use of force when going to war would be unjust, or to limit the use of force in service of a just cause when war would not achieve the purpose. Failing to properly attribute PMC wartime contributions to the state that hires the PMCs would mean permitting wars that should be prohibited, and, more significantly, would deprive the jus ad bellum principles of their crucial critical perspective on war. The effect of treating PMCs as part of a state’s capabilities as well as its wartime losses may mean that war becomes more difficult to justify under these reformulated jus ad bellum criteria. This effect, though, is perfectly consistent with the purpose of this set of principles.

Conclusion The emergence of the present market for force has again complicated the question of legitimate authority, which the rise of the state had simplified. While the state’s monopoly over the legitimate use of force endured, the inquiry into whether or not an entity had the right to declare war was as simple as: is this entity a state, or not? With the rise of PMCs, a new class of actor entitled to engage in the legitimate use of force has emerged, and the state’s monopoly over political violence has been broken. The emergence of actors beyond the control of the state but entitled to engage in violence with state consent means that the principle of legitimate authority has changed along with the institutional structures governing the use of force. The right to engage in the legitimate use of force is no longer limited to the

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state, but may extend to other communities that are acting in accordance with other just war principles. The rest of the jus ad bellum criteria seek to restrict the use of force when it would not serve a just cause or when it would entail needless or excessive destruction. Making these assessments entails empirical judgments about the relative military capabilities of states. Privatization complicates the mission of these jus ad bellum criteria because, at a minimum, it facilitates the waging of war by providing states (or other actors) with capabilities that they did not otherwise have. The enhancement of state capabilities has obvious implications for jus ad bellum norms like the reasonable chance of success. The chance of success varies with the capabilities of the potential opponent, so the ability of the state—weak or powerful, rich or poor—to augment its capabilities almost instantly by contracting with one or more PMCs clearly interferes with this calculation, particularly before a war commences. Likewise, the distinctions drawn between state militaries and PMCs in terms of casualties interfere with calculating the costs and assessing the proportionality to the just cause attained by the war. Beyond these specific problems that privatization poses for jus ad bellum principles, privatization contributes to the alienation of war in a larger sense and potentially erodes the incentive that citizens (in particular) have to take war seriously. Historically, private providers of force have thrived in period of instability and in the aftermath of a prolonged conflict, when standing national forces are downsized (Shearer 1998, 13). The post– Cold War political environment possesses both of these attributes. This wave of privatization is driven not only by these material conditions but also by an ideology favoring the market over the state. As such, privatization appears to be a feature of the international system for the foreseeable future. While states could choose to renationalize the military operations that PMCs have now assumed, all indications suggest that they will maintain or perhaps even increase their procurement of military capabilities from the market. If this is indeed the case, just war theory will need to take account of these private actors if it is to continue providing normative guidance about war. The just war tradition has attempted to limit the use of force in two ways. First, it has endeavored to limit, through these jus ad bellum principles, the resort to war where the use of force would be unnecessary, unjust, or needlessly destructive. While these rules have become oriented around the state, privatization has altered the political (and, consequently, the moral) landscape

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to which jus ad bellum principles apply. Performing this important limiting function in the present era of privatization means recognizing the role that PMCs now play in conflict and incorporating that role into state action for the purpose of applying jus ad bellum principles. This approach to privatization requires a recognition that privatization is likely to remain a feature of armed conflict for the near future and, even if the state were to recover its monopoly on military force, the conditions giving rise to this market for private force are likely to reappear again in the future. Fortunately, the just war tradition contains the moral tools for addressing the changing conditions within the international system. In the case of jus ad bellum rules, aggregating the behavior of the state and its agents reflects the concerns of this body of rules by best helping to restrict the use of force. The other key role that the just war tradition has played in the limitation of force has been to limit the worst effects of the use of force, particularly those that affect the populations most vulnerable during wartime such as noncombatants or POWs. In the next chapter, I turn to these jus in bello restrictions, and the problems that private actors pose for this body of rules. Jus in bello norms also incorporate a similar set of statist assumptions. Like the jus ad bellum component of the just war tradition, these norms are also adaptable to the context of privatized war. Because the concern of this body of rules is to restrain the worst abuses that can occur during wartime, these norms have always been aimed at limiting the conduct of individuals. As such, I argue for a system of shared responsibility under which the individual PMC employees committing violations are held responsible, as are, under certain circumstances, the state actors who employ the PMCs and the PMCs themselves.

Chapter 4

Privatization and the Normative Challenge to Jus in Bello Rules

The jus in bello rules that apply to the conduct of war are of relatively more recent origin than the jus ad bellum principles that govern the decision to go to war. The latter principles have ancient origins, but jus in bello gained significance around the same time that the state displaced other competing authority systems within the international system (Bellamy 2006, 65–66). As such, PMCs pose an unprecedented normative challenge to jus in bello norms. Because jus in bello rules matured within the framework of the state system, these principles implicitly assume the existence of a hierarchical structure like that associated with the model of a national military and a sharp divide between this hierarchical military structure and the sphere of civilian life. These two key jus in bello assumptions derive from the model of the national military. The development of national militaries and the marginalization of private actors that followed the French Revolution constituted the high-water mark of this consolidation and the closest approximation of this sharp divide between combatants and civilians. This world reflected, at that time, the neat division that jus in bello norms assume be-

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tween the class of combatants who fight and the class of civilians who take no part in war. This is the world within which jus in bello norms developed, and so they incorporate these assumptions into the restraints that they impose on those who participate in war. The reemergence of private actors erodes the assumptions on which the contemporary jus in bello framework rests. This market for force chips away at both of the key assumptions that derive from the model of the national military. The emergence of the PMC industry reflects the state’s loss of exclusive authority over the legitimate use of force, as discussed in the previous chapter. The rise of PMCs as providers of military and support services means that nonstate actors not subject to the effective authority and control of the state now engage in functions related to combat. Even when states establish mechanisms for the regulation of private force like those established by the United States and South Africa, their scrutiny of the PMCs hired ends once the contracts have been signed. PMCs are not formally part of the military and they fall outside of the hierarchical command structure of the national military. As such, PMCs are not subject to the authority of the state or military commanders in the same manner as members of national militaries. PMCs also defy a sharp divide between military and civilians. This distinction is driven by the idea that members of the military are “organs of state” (Doswald-Beck 2008, 116). Civilians are, by contrast, treated as largely unconnected to war. In terms of the role that they play in combat, PMC employees more closely resemble military personnel than civilians. They occupy a murky middle ground that the current formulation of jus in bello rules, which rest on assumptions based on the existence of a national military, cannot adequately address. In short, the extensive reprivatization of force challenges the model of the national military along every dimension. To the extent that PMCs undermine this model of the national military, they also create a normative challenge for the body of jus in bello rules. PMCs pose a normative challenge to jus in bello rules by undermining the assumptions on which they rest. Adequately incorporating these elements into the just war tradition will require a rethinking of these assumptions and the rules that they yield. This chapter begins by considering the relationship between jus ad bellum and jus in bello rules, which regulate different aspects of war, as well as the relationship between international law and the just war tradition, as two

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sets of rules that apply to the regulation of armed conflict. It then continues to look at one of two key challenges that privatization poses to jus in bello rules. The challenge stems from the fact that jus in bello rules, though intended to regulate the conduct of individuals during wartime, incorporate some statist assumptions. These rules exist primarily for the purpose of protecting populations that are particularly vulnerable to the horrors of war. While constraining the conduct of PMC personnel presents the more pressing moral problem, these individuals are sometimes in need of protection themselves. As such, their ambiguous status as something between civilian noncombatants and military members poses a unique set of problems. Finally, I turn to the question of who bears responsibility for the violations of jus in bello norms, suggesting a system of shared responsibility for PMC personnel who violate jus in bello norms, the PMCs that employ them and, in some cases, the states that hire the PMCs.

Jus in Bello, Jus ad Bellum, and the Justice of War The very existence of jus in bello norms may seem to be something of a contradiction. Jus ad bellum principles seek to limit the resort to war at all, and contemporary legal formulations of these principles prohibit the use of force except in very limited circumstances. The UN Charter’s broadly worded prohibition on the use of force prohibits the use of force except in self-defense, a principle that generally mirrors jus ad bellum thinking. The broad scope of these jus ad bellum restrictions means that jus in bello norms regulate the conduct of an activity that is quite likely to be illegal ab initio, if not unjust.1 These restrictions on the waging of war are a practical concession to the reality that wars of varying degrees of justice and legality will be waged in spite of jus ad bellum limitations, and that the horrors of these wars should be mitigated. Jus ad bellum and jus in bello rules apply to different aspects of war, but as they both pertain to the justice of war, they relate to each other as well. Problems might arise, for example, when a state has just cause to go

1. Legality and morality are not necessarily synonymous. NATO’s intervention in Kosovo was widely considered to be illegal, because it violated the terms of the UN Charter, but nevertheless legitimate; see Falk (2005). David Rodin (2002) has also argued that national self-defense is immoral under most circumstances.

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to war and satisfies other jus ad bellum criteria, but uses unjust means to wage its war. The relationship between justice of war and justice in war has been complex ever since this latter category of rules became a significant element in assessing the justice of war. While private actors were once pervasive in the international system prior to the present market for force, as discussed in chapter 2, these private actors were relegated to the margins of the system by the time jus in bello standards became an important component in the moral assessment of war. This is not to suggest that the body of jus in bello norms is entirely a creature of the postWestphalia order. However, the preinternational restrictions on the fighting of war were very limited. Plato (1968, 150–51) proposed limits to the conduct of wars fought among Greeks, including a prohibition on pillaging the land and on killing or enslaving enemies after the end of the war, but he did not extend these limits to wars with barbarians. Other rules from the Middle Ages applied restrictions to certain narrowly defined classes of noncombatants, such as religious pilgrims, but these early rules did not universalize the protections that they extended (Bellamy 2006, 32). The secondary status of jus in bello norms relative to jus ad bellum principles stemmed partly from the complexities of the political system in the Middle Ages, which focused the attention of just war thinkers on jus ad bellum questions like right authority and just cause. Prior to the rise of jus in bello as a basis for judging war, some early just war theorists justified any actions taken in service of a just cause. For example, in his discussion of tactics, Gratian suggested that an ambush is “not done unjustly by those who fight a just war . . . the just man doesn’t need particularly to worry about this, except that war be undertaken by one who has the right to do so” (2006, 113). Eventually this absolutist position that a just end excuses any means required to attain it eroded, largely as a result of the recognition that both sides could claim some degree of justice on their side (Bellamy 2006, 66). With this recognition, jus in bello rules came to assume a much more significant role in evaluating the justice of a war. If jus ad bellum could not place justice entirely on one side, it could not support the claim that the just ends legitimized any means necessary to achieve them. As such, the manner in which both sides waged the war became a much more important consideration in assessing a war’s morality. Nor are the two bodies of norms unrelated. Jus ad bellum and jus in bello norms evaluate different aspects of war, and isolated jus in bello violations

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probably do not undermine an otherwise just war. However, a pattern of jus in bello violations can undermine the justice of the war as a whole. Richard Regan states that “systematic and pervasive” instances of unjust conduct can undermine the justice of a war that otherwise satisfies jus ad bellum criteria, arguing that “a belligerent can hardly claim that it is fighting a just war if it wages war in a systematically unjust way” (1996, 98). John Rawls (1999a, 96) proposes a further relationship between the manner in which war is fought and the ultimate goals of the war, suggesting that the conduct of war can model the just peace that is to follow. In this sense, honoring jus in bello restrictions can help to satisfy the jus ad bellum principle that the purpose of the just war is to establish a just peace. Just war theory demands “a moral consistency” between a war’s ends and the means used to achieve them, so that jus ad bellum and jus in bello, while distinct, are related (Orend 2006, 105). In this respect, both jus ad bellum and jus in bello norms matter for the overall moral character of a war. As such, satisfying jus ad bellum norms (both prior to and during the war) is necessary but not by itself sufficient for a war to be just. Just as compliance with jus ad bellum norms must continually be reevaluated, so jus in bello rules also provide a standard that must be continually applied to the conduct of war. While a privatized war can potentially satisfy jus ad bellum principles, if privatization poses significant and widespread jus in bello problems, then these problems can have a broader impact on the justice of the war as a whole. The question of whether jus in bello norms can apply to PMC personnel in the same way that they apply to members of national militaries, then, is crucial to the question of the war’s overall justice. This application depends, first and foremost, on jus in bello norms’ ability to move beyond the statist framework within which they emerged and incorporate the new realities of privatized war. The potential problem in applying these norms to PMC personnel is that the these norms assume certain attributes of the national military model, particularly the military’s hierarchical structure and the clear distinction between the military and civilian spheres. Because PMCs and their employees challenge these assumptions (as described in Table 3), the norms may not apply to them in the same straightforward manner that they apply to those who are members of the military. Despite this potential lack of fit between the assumptions underlying jus in bello norms and the realities of privatized war, jus in bello rules can largely transcend this divide. The application of limiting rules to an endeavor that

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Table 3. Assumptions of the national military model and the challenge of privatization

Structure of the force

National military

Hierarchical with a responsible chain of command

National military operating in concert with PMCs

PMCs lie outside the chain of command

Relationship to civilian sphere

Divided from the civilian sphere, which is presumed to be peaceful PMCs bring actors who are formally civilians into the military sphere

is in most cases illegal, if not also immoral, is at its core a pragmatic step that attempts to mitigate the effects of war on the most vulnerable populations. Though these populations have been defined differently over time, this goal of mitigating harm to them has guided the development of jus in bello rules and has been the defining characteristic of this component of the just war tradition. With the rise of the PMC industry, these norms must shift again. The normative challenge that privatization poses to jus in bello rules is a reflection of the fact that the character of war has changed substantially since these principles emerged. If jus in bello norms are to continue to fulfill their purpose by imposing restraint on belligerents and protecting the vulnerable, then the norms themselves must also evolve in accordance with the new realities of warfare. The pragmatism of this component of the just war tradition holds considerable promise for the application of jus in bello rules to privatized war.

Jus in Bello and the Law of Armed Conflict The jus in bello tradition is not the only set of rules that apply to the conduct of war. Rules of international law, and specifically the law of armed conflict (LOAC), also apply to those participating in or otherwise affected by war. The relationship between these two bodies of rules has changed significantly over the course of their development, largely for reasons related to the historical events considered in chapter 2. Prior to the emergence of the state, the

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international legal system centered relied extensively on conceptions of natural law, which use reason to derive principles of right and wrong. These natural law principles derive from human nature itself or from the divine. Early legal scholars who contributed to the development of the just war tradition such as Hugo Grotius or Emer de Vattel were as much ethicists as lawyers (Bellamy 2006, 119). Grotius viewed international law, including the principles applicable to warfare, as comprising two bodies of rules: natural law and human law. Rules of natural law derive from human reason and are binding on everyone. Rules of human law are promulgated by political communities. Grotius recognized the possibility of conflict between natural and human law, while denying human law could legitimately require things that were forbidden in the natural law or forbid things that natural law required. In this sense, natural law enjoyed a position of precedence over human law in Grotius’s thought, which represented a break from previous just war thought by shifting the focus of the tradition from theological arguments to legal arguments. With the rise of the state, legal positivism largely displaced natural law.2 In contrast to the natural law tradition, legal positivism favors deriving rules of law from sources recognized as authoritative within the legal system. In the context of international law, this means deriving rules from the consent of sovereign states. The present statement of authoritative source of international law comes from Article 38 of the Statute of the International Court of Justice (1945). These sources include treaties, international custom, and general principles of law. Underlying each of these sources is the consent of the states bound by the rules in question. States consent by signing treaties, complying with customary practices, or implementing principles within their domestic legal systems. The emphasis on state consent and codification meant that the LOAC became a legalistic tradition that sometimes parted company from other strands of the just war tradition more closely oriented around the ethics of war. Despite these occasional disparities between the LOAC and the jus in bello norms that form part of the just war tradition, there is more consensus than discord, so I will refer to both jus in bello norms and rules from the LOAC in this chapter on the regulation of armed conflict.

2. It is worth noting, however, that scholars such as Oliver O’Donovan (2003) favor a natural law orientation for the just war tradition rather than what he views as excessive legalism.

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Privatization and Jus in Bello Norms Toward this goal of limiting the effects of war on the vulnerable, jus in bello rules include noncombatant immunity and proportionality. Additional rules regulate the treatment of prisoners or the sick and wounded for the purpose of protecting those who were combatants, but came to need protection themselves. Privatization poses complications for these rules because they are formulated in terms that assume a hierarchical military system like that found in a national military. In the framework created by the Geneva Conventions, which mirror key aspects of jus in bello norms, PMC employees fall outside the definition of lawful combatants. This makes them by default civilians, despite the fact that they participate actively in war. As nonmilitary entities, the military often treats them as falling outside of the military structure. In addition, these jus in bello norms assume the existence of a sharp divide between combatants who fight the war and civilian noncombatants who do not take part in the war. The distinctive culture of the military helps to reinforce this divide between the military and civilians even in peacetime (Carmola 2006, 163). The widespread use of PMCs, which contradict both of these assumptions, creates problems for these jus in bello norms as they are presently formulated. Two key jus in bello rules that measure the justness of a war’s conduct are the principles of civilian noncombatant immunity and proportionality. I also consider here rules applying to POWs and the implications of privatization for command responsibility. Because PMCs are private actors who fall outside the chain of command and because they cross the civilian/military divide, the widespread use of PMCs in armed conflict challenges the formulation of these jus in bello norms and their application to privatized wars.

Noncombatant Immunity As noted above, the early formulations of noncombatant immunity exempted certain classes of individuals, such as merchants or religious pilgrims, from attack based on their particular roles within society. Contemporary forms of this rule exempt all noncombatants from deliberate attack and, additionally, they require that belligerents take steps to minimize unintended casualties among civilians. On its surface, the principle of noncombatant

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immunity protects innocent life (Coates 1997, 234). This proposition is somewhat more difficult than it may appear. Because the subjective quality of innocence can be difficult to define and to assess, in practice this rule derives from an objective distinction between combatants and civilian noncombatants that is based on their status rather than their intent (234). On a more fundamental level, the question of individual innocence or guilt is also somewhat misplaced in the context of noncombatant immunity since the individuals who are the target of this norm have no real role in the decision to go to war (McKeogh 2002, 6).3 Guilt, as connected to war, is much more of a jus ad bellum consideration that applies to the decision to initiate war. This jus ad bellum decision does not lie with the civilian population that is protected by noncombatant immunity, but falls instead to the political leadership of the state. Even in a democracy, the role of individuals is rather indirect. Michael Walzer characterizes citizens’ participation as “occasional, intermittent, limited in its effects” (2000, 301). Even supposing that the state has committed an unjust act of aggression, it would be inappropriate to attribute this decision to the civilian population of even a democratic state. As such, the question of innocence seems almost beside the point of noncombatant immunity (Rawls 1999a, 95). The protection of noncombatants has, then, only a tenuous connection to the quality of innocence. In practical terms, the distinction between combatants and civilian noncombatants is defined in terms of each group’s relationship to the state and their respective roles in the war are defined largely with reference to that relationship. For many on both sides of the divide, their status may be at odds with their intent. Many combatants cannot be treated as having chosen to fight in any real sense, but their obedience (or, at least, their presumed obedience) to their state places them in a position that is substantially different from that of noncombatants. Walzer (2000, 136) argues that combatants, by virtue of fighting, gain rights as combatants and, potentially, as prisoners, but they lose the other rights that they held as civilians—including the rights to life and liberty— even though they themselves may have committed no

3. Even combatants are generally treated as morally equivalent. For individual combatants, their moral equivalence means that the justness (or lack thereof) of their state’s cause is not imputed to them; see McKeogh (2000). If the justness of the state’s actions is not attributed to combatants who take part in combat, then holding noncombatants responsible for the behavior of their state would certainly be inappropriate.

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wrong. Solely by virtue of being combatants and taking part in combat, combatants become subject to being killed by the combatants on the opposing side. By contrast, noncombatants retain their rights, which stem from their “moral standing independent of and resistant to the exigencies of war” (135). This moral standing is even attributed to those civilians who may have supported the war or who may contribute to the state’s ability to wage war through their activities. This distinction between noncombatants and combatants hangs on the latter group’s presumed willingness to fight, which in turn stems from their loyalty (as a class) to the state. The assumption about each group’s relationship to the state, particularly to its armed forces, is what gives rise to the divide between combatants and civilians. This divide is crucial to the principle of noncombatant immunity. Also known as the principle of discrimination, noncombatant immunity forbids deliberate attacks on civilian noncombatants by belligerents (Bellamy 2006, 124). Some argue that the immunity of noncombatants is somewhat more complex, particularly in light of the nature of modern warfare A. J. Coates (1997, 238) observes that even activities that seem far removed from the fighting of war, such as maintaining a supply of oil, can be crucial to the success of a war. He suggests that war brings about transformations in civilian enterprises, such as an increase in production and proposes that “the distinction [between combatants and noncombatants] needs to be modified” in recognition of these wartime transformations (238). Walzer also acknowledges that “workers must be mobilized before an army can even appear in the field” (2000, 145) but he distinguishes between those who contribute directly to the war effort and those who do not. Civilians involved in military industries like making armaments (workers in a munitions factory) and those involved in making things that are not used specifically for military purposes (workers in a food processing plant) are distinguishable, even though they both contribute to the war effort in some capacity (146). While the former may legitimately be the target of attack because their contribution to the war effort is substantially more direct, Walzer argues, necessity still comes into play and they may not be attacked when their work can be stopped in some other way. This claim reflects the distinction between those civilian workers who contribute directly to the war effort and those who do not. The class of civilian noncombatants, whose work makes only a marginal contribution to the state’s war effort, is to be protected from the effects of war as far as possible.

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Beyond refraining from targeting civilian noncombatants, belligerents must also take positive steps to minimize harm to this group as far as possible. These positive steps to protect civilians may require that, in some cases, military personnel place themselves in jeopardy for the sake of minimizing casualties among protected populations, including civilian noncombatants. To illustrate the expectation that military personnel must bear some risks to save civilians, Walzer (2000) draws on the abandonment of such a norm during World War II. This deterioration in the protection for civilians also stems out of an evolution in naval warfare. Early on, Walzer contends, naval warfare was characterized by “gentlemanly” (147) conduct, stemming in part from the unique nature of the ocean as the naval battlefield. This manner of fighting included within it those civilians who might be caught up in the fighting by virtue of their being crew members or passengers on merchant ships. If these merchant ships could not be safely brought into port, the sinking of these ships was permitted, provided that the safety of the crew and passengers had been adequately provided for by the military. With the introduction of submarine warfare, Walzer notes that resistance to this norm of rescuing civilians began to emerge. Surfacing to engage in such rescues made submarines vulnerable to attack, placing the ships and their soldiers at risk. Due to their size, bringing the crew of a merchant ship on board would be a considerable burden. The Laconia was one such ship, a British ocean liner, sunk by a German U-boat during World War II. It had on board 268 British servicemen and their families, who were returning home, along with 1,800 Italian POWs. A U-boat torpedoed the Laconia off the western coast of Africa. When Admiral Doenitz, a U-boat commander, learned about the sinking, he immediately ordered a massive rescue effort to assist those on board the Laconia. Allied airplanes, either unaware of the rescue effort or doubtful of the information that they had received, attacked the submarines involved in the rescue effort. In response to this attack, Doenitz ordered that the rescue effort be limited to the Italian prisoners and that the British soldiers and civilians be set adrift. He also instituted this practice as policy by issuing the so-called Laconia Order. This order not only required submarines to strike without warning, but, more importantly, prohibited submarines from engaging in rescue efforts. Doenitz stated that any “attempts to rescue the crews of sunken ships should cease, including picking up men from the sea, righting cap-

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sized lifeboats, and supplying food and water” (quoted in Walzer 2000, 148). This order formed the basis of a war crimes charge against Doenitz after the war’s conclusion. Walzer finds that the judges’ refusal to find Doenitz guilty of violating the laws and customs of warfare with the Laconia Order leaves important moral issues open by charactering the order as based on risk rather than noncombatant immunity. Walzer argues that we draw a circle of rights around civilians, and soldiers are supposed to accept (some) risks in order to save civilian lives. It is not a question of going out of their way or of being, or not being, good Samaritans. They are the ones who endanger civilian lives in the first place, and even if they do this in the course of legitimate military operations, they must still make some positive effort to restrict the range of the damage they do. (2000, 151)

This assumption of risk by soldiers for the purpose of saving civilians reflects the clear and fundamental distinction between soldier and civilian that the principle of noncombatant immunity assumes. This distinction assumes two distinguishable groups, combatants and civilians, which possess different rights and obligations. Based on this distinction, members of the combatant class are not only prohibited from deliberately targeting members of the noncombatant class, but the former must sometimes risk their own lives to rescue the latter. Despite the emphasis placed on noncombatant immunity, even this doctrine is not absolute. The doctrine of double effect, a concept that originated with the work of Thomas Aquinas, permits some degree of harm to noncombatants. Double effect qualifies licenses some degree of unintended and proportional harm to civilian noncombatants. In Aquinas’s (2006b, 190) statement of double effect, an act may have more than one effect: the intended effect, from which the act draws its moral character, and a second unintended effect, which does not bear on the moral character of the act. Proportionality limits the applicability of double effect. The consequences of the intended effect must outweigh those of the unintended effect, or it renders an otherwise permissible act unjust. Double effect permits some civilian casualties, provided that they are not the intended consequence of a military action and as long as they do not outweigh the intended consequences. Double effect is not itself a moral principle, but a tool of moral analysis (Coates 1997, 239).

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As restated by Walzer, the doctrine of double effect includes the following conditions: 1) The act is good in itself or at least indifferent, which means for our purposes, that it is a legitimate act of war. 2) The direct effect is morally acceptable—the destruction of military supplies, for example, or the killing of enemy soldiers. 3) The intention of the actor is good, that is, he aims only at the acceptable effect; the evil effect is not one of his ends, nor is it a means to his ends. 4) The good effect is sufficiently good to compensate for allowing the evil effect; it must be justifiable under Sidgwick’s proportionality rule. (2000, 153) Walzer would further revise the third provision to require the actor to minimize, as far as possible, the unintended but foreseeable evil effects (155). Double effect excuses some casualties among combatants, then, based on the actor’s intent and a balance between the intended good and unintended evil effects. At the same time, this doctrine of double effect, while it acknowledges the fact that noncombatant immunity is not absolute, requires combatants to minimize the harm to civilians. These efforts may require some risks on the part of military personnel. Not only rights, but also duties, are assigned to individuals based on their status. The bright line between combatants and civilians that this division assumes is not always clear. Walzer’s (2000) neat division between combatants and noncombatants obscures the reality that many combatants do not fight by choice. Conscription and coercion often bring people into the social category of combatants against their will. Walzer sets aside the issue of choice, defining combatants in terms of their military function alone. While Walzer acknowledges that “the soldiers would almost certainly be nonparticipants [in war] if they could” (30) and that they “neglect war whenever they can” (138), he nevertheless constructs a divide between civilians and soldiers, arguing that “soldiers as a class are set apart from the world of peaceful activity” (144). Walzer is not alone in assuming such a divide. The treatment of combatants and civilians in international law is also premised on a sharp dividing line between the two, as these distinctions are reflected in the way the Geneva Conventions define combatants and civilians. Article 4 (2)

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of the Geneva Convention Relative to the Treatment of Prisoners of War (1949; Third Geneva Convention) defines a lawful combatant as either part of the national military of a state or a member of a militia, provided that certain conditions are met. To satisfy these conditions, a member of the militia must be part of a responsible command, wear a distinctive sign, carry arms openly, and operate in accordance with the “laws and customs of war.” As I will argue in connection with command responsibility, PMCs are not part of the military chain of command. While they may carry arms openly and comply with the laws of war, they will probably not wear the type of visible and distinctive sign associated with combatants. Article 4(4) of the Third Geneva Convention does make provision for some others to be considered as lawful combatants, including “civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces.” The status of these individuals depends on the consent of the armed forces and their provision of appropriate documentation to these civilians. Some PMCs could fall within this category of civilians accompanying the military, assuming that the military units that have hired them provide the appropriate permissions and documentation. Their status as combatants is also contingent upon the type of services that they provide. PMCs providing logistical support to the military would likely fit within this definition of combatants. Companies such as KBR, for example, primarily perform functions such as feeding soldiers or assembling and disassembling camps. These types of functions relate to the welfare of the armed forces as contemplated by the Third Geneva Convention. Other PMCs closer to the tip of Peter Singer’s (2001) spear (such as EO in Sierra Leone or Blackwater in Iraq) provide services that go well beyond being mere suppliers and so would fall outside this category of lawful combatants. While PMCs are sometimes referred to pejoratively as mercenaries, they do not fit the legal definition in Article 47 of Protocol I Additional to the Geneva Conventions (1977), which provides that mercenaries lack the right to be either combatants or POWs. The definition in Article 47 focuses on the mercenaries’ motivations as “the desire for private gain and . . . material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces” of the state involved in the conflict. This focus on motivation is particularly damaging because of the problems of proof. Proving the actions that an individual took is a simple

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matter when compared to establishing the motivation for taking that action. In addition, other provisions such as the nationality of the individuals are listed as cumulative criteria that must be satisfied. Sarah Percy (2007a) has persuasively argued that the weakness of this legal provision results not from a lack of commitment to prohibiting mercenaries but instead from a strong consensus as to what the term “mercenary” means coupled with difficulties in constructing a definition that adequately captures that consensus. States wanted a legal definition of mercenaries that reflected a core consensus around mercenarism, which focused on individuals’ financial motivation and a lack of state control over them. At the same time, states wanted to exclude individuals who were clearly not mercenaries, such as individuals who enlist in the militaries of states to which they intend to immigrate or those serving in established international brigades of state militaries. The difficulties of capturing this consensus meant that the resulting definition included some behavior and excluded a lot. The consequence is that few, if any, PMCs or individual PMC employees would be considered mercenaries under the Protocol I definition. The flaws of this definition inspired the oft-quoted observation that “any mercenary who cannot exclude himself from this definition deserves to be shot—and his lawyer with him” (quoted in Best 1980, 375, n. 83). Most PMCs and PMC employees, then, fall outside the scope of this relatively ineffective Protocol I definition of mercenaries. Because they do not fit into the categories of lawful combatants or mercenaries, PMC personnel are by default civilians within the framework established by the Geneva Conventions. While they fall into this category essentially by failing to be anything else, PMC personnel do not fit neatly within the Geneva framework’s understanding of civilians. The definition of civilian is not merely a residual category for everyone who does not meet the standard for being a lawful combatant. Instead, it seems to envision a particular role for civilians that is separate from warfare. Article 15 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949; Fourth Geneva Convention) extends protection to civilians “who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character.” Civilians who fit this definition, in addition to the wounded and sick and POWs, are to be protected from the effects of war by the states party to this convention. While PMC employees are civilians, inasmuch as they are not part of national militaries, they do perform work of a military character and they do take part in hos-

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tilities. They do not fit the role that the Geneva Conventions envision for civilians in wartime. Moreover, they risk losing the protections that attach to civilian status by virtue of their participation in conflict according to Article 51(3) of Protocol I. These definitions reflect the divide that persists in just war theory, and the legal rules that track jus in bello norms, between combatants who fight and civilians who are not involved in the hostilities. The former are largely the subject of rules restraining their behavior; the latter need of protection from the former. Even momentarily setting aside the ambiguous status of PMCs, which have a foot on each side of the civilian/military divide, the line between civilian noncombatants and military combatants has never been as neat as this sharp theoretical divide would suggest. Within the category of combatants, there is a considerable range in terms of the willingness with which combatants participate in warfare. Just war thinkers who focus on intent rather than actions alone, such as Augustine, would distinguish between those who fight voluntarily and those who are compelled, like conscripts. On the civilian side, the sharp line is also undermined by the reality that noncombatants are never entirely exempted from the effects of war. Others who are formally designated as noncombatants in reality experience the war, perhaps in overlooked ways, like female noncombatants who experience wartime rape (Sjoberg 2006, 88). The reprivatization of force has further eroded the already thin line between combatants and noncombatants, as a growing number of individuals who were formally civilians make real contributions to the war effort despite being outside the military structure. With the rise of PMCs and the reprivatization of force, civilians and combatants are increasingly performing the same functions with respect to armed conflict. Functions that would once have been performed by members of the national military, whether they are combat-related or logistical, are increasingly being transferred to PMCs in the private sector. This development further chips away at the division between combatants and noncombatants. PMC employees belong, in theory, to Walzer’s “world of peaceful activity” because they are not combatants. In practice, however, their actions place them firmly within the sphere of combat. Even PMC personnel who perform functions that are far removed from the tip of the spear are performing functions that previously would have been performed by military personnel prior to the emergence of PMCs. They differ even from employees in the armaments industry because they are directly involved in the war effort. Because civilians are not

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performing these wartime functions, I will distinguish between PMC employees, who are civilian combatants, and those civilians who more closely fit the Geneva Convention framework, who are civilian noncombatants. The blurring of the divide between civilian noncombatants and combatants raises questions about where PMC personnel lie on this civilian/ military divide and what their position means for the ethical evaluation of their conduct during wartime. Proponents of military privatization argue that PMCs may be less inclined than members of national militaries to maltreat civilians because they are motivated by profit rather than ideology or loyalty to any of the groups involved in the conflict. Because private combatants also compare favorably to some national militaries such as Sierra Leone’s in terms of their effectiveness and discipline, Christopher Coker (1999, 109) argues that ethical objections to PMCs should not be overblown. In Sierra Leone, members of the national military were referred to as “sobels,” an acknowledgment of the fact that some of the same individuals were both soldiers in the national military and rebels involved in efforts to overthrow the government. Coker compares these sobels to the PMC personnel that Sierra Leone hired to assist in its efforts against the rebel forces. Under such conditions, EO personnel were bound to compare favorably on such measures as discipline and effectiveness. Tony Lynch and A. J. Walsh (2000) contend that the lack of connection between states and private soldiers means that the private troops will be less prone to excessive violence than their counterparts in national militaries. They argue that because private soldiers are motivated by the prospect of payment they are unlikely to take unnecessary risks, and they contrast mercenaries with members of national armies, who might instead seek “transcendental personal glory” (144). If limiting the effects of war on civilian noncombatants entails an assumption of risk on the part of those fighting the war, though, PMCs may view those risks as equally unnecessary. While the “good mercenary” that Lynch and Walsh propose would not engage in unnecessary acts of violence, there is little reason to suppose that nonidealized PMC personnel as a whole will be more law-abiding than members of national militaries. Taulbee argues that the historical record suggests that the strengths and shortcomings of mercenary troops, differ little from the strengths and shortcomings of other “regular” troops. Mercenary troops often fought well, particularly when well trained

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and well led. . . . This does not argue that opportunists, charlatans, cheats and those who have little respect or regard for human life play minor roles. Instances of mercenary perfidy abound in the historical record. (1998, 150–60)

While civilian combatants are probably not starkly different from their military counterparts, a key obstacle to this assessment is a lack of information about PMC activities. Unlike their military counterparts, PMCs operate outside the meaningful control of any system of military justice. As such, information about their operations can be difficult to obtain, but scattered reports provide insights into the abuses that PMC personnel sometimes commit. One source of information about PMC misconduct is litigation. In one instance, two former employees of Triple Canopy, an American PMC that operated in Iraq, filed suit against their former employer, claiming that they were terminated after complaining about a supervisor’s shooting at civilians. The former Triple Canopy employees allege that their shift leader Jake Washbourne (known as J-Dub) stated that he wanted “to kill somebody today” because he was going on vacation (Fainaru 2008, 27). After J-Dub made this statement, he allegedly fired deliberately into a stopped white truck (28) and later into a taxi (29), in both cases immediately leaving the area after the gunfire. After J-Dub left Iraq, the Triple Canopy employees who had been with him during these alleged incidents reported his actions. The employees who reported the shootings were fired along with J-Dub (32). Yet, J-Dub, who allegedly fired at civilians, faced no disciplinary action other than the termination of his employment. According to journalist Steve Fainaru, Triple Canopy said its only obligation was to report the incident to its contract holder, KBR, which was supposed to report to its contract holder, which was supposed to report to its contract holder, the U.S. military. Triple Canopy sent a two-page report to KBR . . . KBR refused to say what it did with the report. (2008, 35, emphasis in original)

This incident suggests both a lack of reliable information about PMC personnel involved in civilian abuses as well as the lack of a mechanism for holding those involved accountable. In a formal sense, this is violence among civilians. Informally, this act of violence was allegedly perpetrated by an individual whose role resembled that of a combatant against individuals who

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more closely fit the Geneva Convention definition of a civilian. The common status as civilians does not reflect the reality of their rather different roles in war. Treating civilians connected to PMCs as civilian combatants and those civilians who stand apart from armed conflict and fit the Geneva Convention framework as civilian noncombatants more accurately reflects the relationship that each class of civilians has to war. Restraining the conduct of PMC personnel is only half of the jus in bello problem. Much in the same way that they are not formally bound by jus in bello norms, neither are they adequately protected by norms like noncombatant immunity. Despite the fact that PMC employees are formally civilians, the jus in bello norms clearly do not contemplate civilians performing the military functions that PMC employees have assumed. Just as the rules intended to restrain members of the military are ill-suited for PMC personnel, the norms formulated for military personnel and civilian noncombatants do not adequately protect them. The ambiguous status of PMCs and their individual employees also presents problems with respect to their rights when captured. I discuss below the problem of protecting civilian combatants further in the context of the POW regime. Before turning to these rules, however, I consider the jus in bello norm of proportionality.

Proportionality Proportionality further limits the legitimate use of force during war. As a jus ad bellum principle, proportionality requires that the benefits of war taken as a whole be in proportion to its costs. As a jus in bello principle, proportionality measures the balance of harm to good with respect to particular actions within the context of the war. Douglas Lackey (1989, 59) makes a distinction between the jus ad bellum principle, which he characterizes as a political principle, and the jus in bello principle, which he describes as a military principle. Taken together, these two principles of proportionality limit not only the initial resort to force, but also the conduct of the war by requiring that the benefits of particular military actions outweigh their costs. At its core, proportionality prohibits unnecessary destruction that does not help a state to achieve its goal. Like its jus ad bellum counterpart, this formulation of proportionality also involves, necessarily, some subjective judgments about the value of costs and benefits of particular acts and the

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balance between them (Orend 2006, 119). If the contribution that a particular action makes toward military victory is outweighed by the damage it inflicts, then that action is disproportional and therefore unjust. The purpose of this idea of proportionality is to promote an economy of force and to minimize unnecessary harm. Proportionality means that a belligerent is only justified in using the amount of force necessary to achieve the particular military goal. In concrete terms, this principle of proportionality has taken the form of a prohibition on weapons that cause superfluous injury or unnecessary suffering such as weapons that are designed to blind combatants (Gardam 2004, 75). These weapons cause unnecessary suffering (when compared with incapacitating enemy troops) that does not necessarily contribute more to the cause of military victory. The idea of proportionality is generally at odds with the tactic sometimes favored by belligerents of using overwhelming force to achieve a quick and decisive military victory (Gilbert 2005, 101). This strategic preference manifests itself in the heavy reliance on air power, for example, which has become a sort of “idolatry” (Walzer 2004, 99). The use of air power minimizes the risk to troops who do not set foot on the ground, but it increases the risks to those on the ground, most problematically those who are civilian noncombatants, because it impedes distinguishing between combatants and noncombatants. Such a strategy may reduce casualties on the offensive side and minimize political dissent, but it does so at the risk of maximizing casualties on the opposing side.4 This allocation and valuation of casualties based on nationality is at odds with the moral imperative to reduce harm to civilians and unnecessary harm to combatants on the opposing side. Because civilian noncombatants are treated as separate from the activity of warfare in the current jus in bello principles, these principles mandate that those noncombatants cannot be sacrificed to minimize casualties among combatants. The overall effect of the jus in bello principle of proportionality is to limit unnecessary harm in the conduct of war. This goal of limiting harm is consistent with the jus ad bellum formulation of proportionality. Also like its jus ad bellum counterpart, the jus in bello principle of proportionality may be more easily identifiable in its breach than 4. In the particular instance of Kosovo, Walzer (2004) argues that not only was air power insufficient to address Serb aggression, but Serbia’s aggressive campaign of ethnic cleaning in Kosovo was a response to the air campaign.

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in compliance (Orend 2006, 119). In other words, obviously disproportional actions may be more easily recognizable than actions that comply with the requirement of proportionality. Article 51 of the Protocol I Additional to the Geneva Conventions adopts this view, framing the requirement of proportionality as a prohibition of disproportionality by forbidding actions “which would be excessive in relation to the concrete and direct military advantage anticipated. This formulation of the jus in bello proportionality rule recognizes that disproportionality may be more easily identifiable than proportionality. Proportionality assumes consensus on what constitutes good or harm. Privatization may undermine this jus in bello proportionality rule and frustrate its goal of eliminating unnecessary force. As discussed in the previous chapter, PMCs may have a strong economic incentive to prolong conflict. What states (and certainly civilian populations) would consider to be the harm of protracted war could constitute the good of a greater profit to a PMC. Waging war with a plurality of actors means that they will have different understandings of the costs and benefits of an action. Introducing nonstate actors like PMCs means that the state may not be able to effectively impose its own assessment of costs and benefits onto all of the actors participating in the conflict. Prolonging the conflict beyond the requirements of military necessity clearly interferes with the jus ad bellum principle that specifies the achievement of a just peace as the purpose of a just war. By increasing the total amount of force used by combatants involved in the conflict, it also threatens to undermine the jus in bello requirement of proportionality by prolonging the conflict and introducing additional, unnecessary force and harm to combatants. The ambiguous status of PMCs and their individual personnel also frustrates reasoning about proportionality. The tendency of PMCs to fall in between the categories of military and civilian complicates the assessment of costs among PMCs. This is, in part, because of the relatively hidden nature of PMC casualties. As noted in the previous chapter, casualties among civilian combatants are not counted among the public costs of war as casualties among members of the national military are. Because of this, the total costs of any particular action are not reflected in these official casualty figures. Much in the same way that this lack of transparency frustrates reasoning about the jus ad bellum principle of proportionality, which applies to assessing the proportionality of the war as a whole, it also impedes moral reasoning about the jus in bello principle, which applies to the costs and

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benefits of particular actions within the war. Certain losses, those among civilian combatants, are not included in the total costs of particular actions. In the US case, the Pentagon’s figures of military losses do not include deaths or injuries among civilian combatants. When these losses are counted at all, they are valued lower than losses among state militaries. In the US system, the Department of Labor collects these figures based on voluntary reporting. The disparities between these two systems of accounting for wartime losses reflects the differences in how the losses among military personnel and civilian combatants are valued. While there are figures about PMC casualties, the quality of the information on these casualties is substantially inferior to the information about military casualties. Moreover, the fact that these figures are separate reflects a diminished value on losses among civilian combatants. As with the jus ad bellum principle, any assessment of a measure’s proportionality must be able to account for losses both from the national military and PMCs. This question of assessing losses raises the further question of how PMC losses should be valued. Even if PMC casualties are counted, should they be considered military or civilian casualties? For the jus ad bellum proportionality principle, which considers universal losses, the question is unimportant. With respect to the jus in bello principle of proportionality, the distinction between combatants (both military and civilian) and civilian noncombatants assumes particular importance in light of the previous discussion of civilian noncombatant immunity and double effect. If states and the members of their national militaries have an obligation to minimize losses among civilians—and even to assume some degree of risk to do so— then the nature of losses among PMC personnel becomes an important question. While PMC employees are, in a formal sense, civilians, their role in war more closely resembles that of the military. Despite the fact that only some PMCs perform combat functions or even military training, all of the functions that PMCs have assumed were once performed by members of the military prior to the wave of reprivatization. As such, I argue that casualties among civilian combatants are more appropriately considered as military casualties. This is another manifestation of their status as civilian combatants. The losses and injuries among PMCs, counted as part of the military losses, must nevertheless be counted. Failure to include PMC losses in casualty estimates provides a skewed view of the costs of the decision under consideration, and will likely lead states to engage in disproportional actions.

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Command Responsibility and Jus in Bello Violations The status of PMCs as not fully military also raises problems for the principle of command responsibility, which holds superiors responsible for the violations of their subordinates, at least under certain conditions. Privatization also complicates the prevention and punishment of jus in bello violations because PMCs lie outside the structure of the state military. In particular, the hierarchy within the national military allows for the imposition of command responsibility. In the national military model, responsibility for jus in bello violations lies, clearly and unproblematically, with those individuals who commit the wrongful acts. But responsibility may also extend beyond those who committed the acts to members of the command structure responsible for supervising those who committed the jus in bello violations. Command responsibility suggests that “a combination of power to intervene, knowledge of crimes and subsequent failure to act should render [commanding officers] liable for the crimes of their subordinates” (Bantekas 1999, 573). While the basic premise that commanding officers can bear responsibility for their misdeeds has origins in the thought of Sun Tzu,5 the international LOAC did not incorporate this principle until the twentieth century (Sheehy et al. 2009, 162). This idea of command responsibility was articulated following World War II in the trial of Tomoyuki Yamashita for violations committed by troops under his command in the Philippines (In re Yamashita 1946). Yamashita, a general in the Japanese army, was convicted of war crimes for permitting those soldiers under his command to engage in a pattern of violations against civilians and POWs. The US Supreme Court held that a commanding officer has “an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population.” Within the scope of its jurisdiction as an appellate court for the military commission, the Supreme Court did not revisit the evidence on which Yamashita had been convicted, allowing the United States Military Commission’s conviction of Yamashita to stand. Instead, the court’s inquiry was limited to the question of whether the commission had applied an appropriate standard to the Yamashita case. In its decision, the commission had found that “vengeful actions are widespread offences and there is 5. Sun Tzu wrote that when “troops flee, are insubordinate, collapse in disorder, or are routed, it is the fault of the General.” Sun Tzu (1963, 125).

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no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable” (Trial of General Tomoyuki Yamashita 1945). This standard of command responsibility was later codified in Article 86 of Protocol I Additional to the Geneva Conventions. This provision imposes responsibility on superiors, whether or not they are part of the military chain of command, who knew or should have known that their subordinates were going to commit a breach. Article 87 of Protocol I extends this responsibility to “other persons under [military commanders’] control,” which has the effect of extending command responsibility to civilians, provided that those civilians are within the control of military commanders. The imposition of criminal responsibility on a commander applies when the commander has failed to prevent the commission of war crimes by subordinates. It reflects the responsibilities that commanders should exercise with respect to those under their command. The concept of command responsibility includes, according to Walzer (2000), two particular duties. First, commanders need to take care to limit even unintended casualties when planning their campaigns. Second, and more closely related to the imposition of criminal responsibility for the actions of their subordinates, military commanders “must take positive steps to enforce the war convention and hold the men under their command to its standards” (317). This latter aspect of command responsibility includes both overseeing the training of combatants with respect to the LOAC and punishing those under their command who commit violations. While “even the best possible system of enforcement doesn’t preclude particular violations . . . if there is a massive breakdown of this disciplinary system . . . we demand an accounting from the officers who preside over it” (319). A commander who fails in this obligation and whose troops commit egregious violations is “presumptively responsible” (317). This effect of this concept of command responsibility is to assign responsibility for war crimes violations to those who committed the criminal acts and also, potentially, to those who have the responsibility to supervise those who committed them. Underlying command responsibility are the assumptions that the commander held responsible for a subordinate’s crime has adequate information about the actions of subordinates and that those carrying out orders are, indeed, subordinates who would follow the orders of a commander. Both of these elements—the commander’s knowledge of subordinates’ conduct and

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the effective exercise of authority over subordinates—are essential to the idea of command responsibility. In short, command responsibility assumes the existence of a hierarchical structure like that of a state’s military, even though Article 86 of Protocol I is written in such a way as to include civilians as both superiors and subordinates. Taking this provision in conjunction with the Geneva definition of lawful combatants, it is unclear whether these provisions encompass civilian combatants. As noted above, the Geneva Conventions make some provision for civilians who accompany the armed forces, but this definition does not appear to contemplate civilians who perform the functions that PMCs have assumed. Benedict Sheehy and colleagues argue that “the civilian doctrine is a mere ‘skeleton’ that should be fleshed out so as to clearly include civilians engaged in military activity” (2009, 165). Applying this claim to the Abu Ghraib prison abuses, they use this case to support their position about extending command responsibility to PMCs (166). Citing Donald Rumsfeld’s testimony to the Senate Armed Services Committee, they note that the PMC employees implicated in the Abu Ghraib abuses, interrogators and linguists from CACI and Titan Corporation, were both responsible to and responsible for military intelligence officers (168). These PMC personnel were in effect integrated with the military personnel. Several of these military personnel were prosecuted for their role in the abuses against prisoners, while none of the PMC employees have been brought to justice for their involvement. Sheehy and colleagues advocate bringing the doctrine of command responsibility into conformity with the reality that PMC personnel perform the same functions as their military counterparts and sometimes act cooperatively with them (170). While bringing PMC personnel into the chain of command would undoubtedly better advance the goals of jus in bello norms and would certainly promote accountability, strategic and economic realities present some difficulties with respect to the integration of PMCs into the military chain of command. Many states, the United States included, presently treat PMCs as falling outside the structure of the military hierarchy. In formal terms, they do not report to members of the military. The US Army field manual Contractors on the Battlefield specifies that “only the contractor can directly supervise its employees. The military chain of command exercises management control through the contract” (Contractors on the Battlefield 2003, para. 1–22). While field manuals can easily be changed, in this particular instance the field manual reflects the nature of the relationship between PMCs and

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the states that employ them. Unless a state formally integrates PMCs into its armed forces, a move that would counter the fluid, short-term nature of most PMC employment, its approach will be the same.6 Contract compliance, rather than military command, is the key tool that the military uses to manage PMCs and their personnel (para. 4–42). Not only are the PMCs that a state might hire outside the chain of command, but these companies often hire subcontractors to carry out some of the work that they are hired to perform. In Iraq, a report by the Coalition Provisional Authority (CPA) identified sixty PMCs as working in Iraq, only eight of which had direct contracts from the CPA (Isenberg 2004, 29).7 As a consequence of this practice of subcontracting, the PMC personnel performing the work may lack even a contractual relationship to the state on whose behalf they work. In Isenberg’s words, “these convoluted relationships often mean that the governmental authorities have no real oversight of security companies on the public payroll” (16). Subcontracting only further removes the PMCs carrying out the functions associated with war from the political and military authorities carrying out the war. Some of the key assumptions on which command responsibility is premised no longer hold in this new model of privatized war. Though PMCs are carrying out functions that used to be performed by military personnel, they are not part of the hierarchical structure of a national military and they are not subject to the authority of the commander who would exercise responsibility over them if they were soldiers. Instead, PMCs and their personnel are explicitly placed outside the chain of command on which command responsibility depends. Although many PMC employees are former members of national militaries who would have received some form of training with respect to the laws of armed conflict, this is not universally true. In their capacity as PMC personnel, they are not trained by military commanders and those commanders lack the authority to punish PMC personnel who, in effect, commit violations of the LOAC. The assumptions underlying command responsibility do not apply and the system of oversight threatens to break 6. The ability to hire PMCs only as needed is considered a key advantage of using private force rather than maintaining higher troop levels within the national military. Integrating PMCs into the structure of the national military would conflict with the goal of maintaining a smaller force and relying on PMCs for short-term needs. 7. This list was incomplete. It excluded, at a minimum, CACI and Titan, whose personnel were implicated in the Abu Ghraib prison abuse scandal; see Isenberg (2004).

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down. The inability to hold commanders responsible for the violations by civilian combatants makes the challenge of imposing suitable jus in bello norms on PMCs and their employees all the more urgent.

Protection for Combatants: POWs My discussion so far has emphasized jus in bello norms that seek to restrict the conduct of combatants, particularly those who fall into this new category of civilian combatants. Combatants—or perhaps more precisely those who were combatants prior to their capture—are also protected by key jus in bello norms that confer rights on POWs. These norms of protection are subject to the same complexities as the norms of restraint due to the ambiguous status of PMCs and their personnel. Unlike many of the other rules governing the conduct of war that emerged relatively late in the just war tradition, the rules regarding the treatment of POWs have ancient roots. Cicero advocated a duty “to take in those who have laid down their arms and seek refuge in the faith of generals” (2006, 52). Augustine (2006a, 79) likewise wrote of treating those combatants who were captured with mercy. When captured and removed from active participation in war, combatants acquire certain rights specific to their new status as POWs. The standards applicable to POWs have been codified most recently in the Third Geneva Convention. These standards specify that those who have laid down their arms must be treated humanely. Specifically, Article 25 of the convention specifies that the power detaining the POWs must hold the prisoners in conditions like those under which their own forces live. According to Article 13, they also become, like civilian noncombatants, the object of protection from violence. Underlying the standards that apply to POWs is the recognition that prisoners, while they were at one point combatants, have ceased taking part in the conflict by virtue of their capture. Combatants who seek the protection of POW status have “committed themselves to stop fighting” (Walzer 2000, 46). The rights that POWs receive attach to their new status on the basis that they have left behind their old status as a participant in war. These POW protections depend on an individual’s having been classified as a combatant. Those who are not considered to be part of national militaries may fall outside of this classification. PMC personnel are often thrown into harm’s way as a result of the functions they carry out and, in some cases,

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they are captured. This book opens with the story of three PMC personnel, employees of the Northrop Grumman Corporation, who were captured by FARC rebels in 2003 after their drug-surveillance plane crashed in Colombia (Romero 2008). The PMC employees were held hostage by the FARC until 2008 when the Colombian military rescued them along with several other hostages. Prior to their rescue, these three PMC employees had been the longest-held US hostages in the world. The ambiguous status of PMCs creates questions about whether PMC employees are entitled to the same POW protections that would be extended to military personnel. In this particular case, the FARC expressed a willingness to designate the captured men as POWs. In practice, the conditions under which the FARC held these civilian combatants violated a number of provisions of the Third Geneva Convention. The FARC held these men in conditions that were significantly inferior to those conditions under which their own troops lived. Perhaps these deficiencies stemmed partly from the dispute over the status of the three captured men. The resistance to classifying the men as POWs came instead from the United States, despite the fact that the men were US nationals working on behalf of the United States. Washington continued to maintain that they were “kidnapees” (Avant 2005a, 26). The passage quoted at the beginning of this book from the captured contractors’ memoirs indicates that they were also confused with respect to their status and the rights and responsibilities that attached to it. This incident underscores not only the vulnerability of PMC employees, but also the inadequacy of existing moral and legal frameworks to protect them. As argued above, PMCs do not fit neatly within the categories of combatants or civilians that run through the Geneva Conventions and jus in bello thought. As such their status when they are captured remains as ambivalent as it is while they are participating in hostilities. As participants in war who do not satisfy the definition of “combatant” in the Geneva Conventions, these PMC personnel occupy the same ambiguous status of “unlawful combatant” that the United States ascribed to the Guantanamo Bay detainees (Rosemann 2005, 281). The Bush administration has used the ambiguous status of the latter to deny them the protections of the Geneva Conventions. Likewise, the government refused to characterize the Northrop employees held in Colombia as anything but “kidnapees.” Carrying this argument to its logical extension, the administration’s position on the Guantanamo Bay detainees could be used to deny POW protection to

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the more than 100,000 PMC contractors that fought on the US side in Iraq. The prevalence of PMCs in the conflict and others around the world could effectively undermine the POW regime unless PMC personnel are viewed as civilian combatants and recognized as potential POWs. The ambiguity in their status highlights the normative challenges that PMC personnel pose to the POW regime and jus in bello norms more broadly.

PMCs and the Normative Challenge Consideration of jus in bello norms before the Westphalian state system emerged, and especially after the rise of the state but before the evolution of national armies, was quite limited. As such, these norms developed almost entirely against the background of the national military model. Still, jus in bello norms were always intended to apply to individuals involved in warfare, whether they were restraining the conduct of combatants, extending protection to noncombatant civilians, or recognizing the status of POWs. As such, these rules—particularly those rules intended to restrain the conduct of combatants— could apply as easily to PMC personnel as to combatants in national militaries with the recognition that military functions are now performed by individuals other than military personnel. Though these rules in their current form contain statist assumptions, the rules can be separated from these assumptions and applied to privatized wars. Because PMCs are neither fully military nor fully civilian, they occupy a murky intermediate status between civilian noncombatants who are generally in need of protection through jus in bello limitations and the military personnel to whom these limitations are applied by virtue of their connection to their state. PMCs are driven not by loyalty to any particular state or, in many cases, to the state system itself. They are not in any meaningful sense a part of the military force or the larger state structure. They do not share the type of loyalty to the state that underlies Walzer’s treatment of combatants. On the contrary, their loyalty is only to their own economic interests. Neither do they share the status of noncombatants, who remain apart from the war and have not made a choice to participate in the fighting. As noted above, they retain many of the attributes of employees in the civilian world. This can pose real and pressing problems in terms of the ability of military officers to supervise PMCs with respect to their compliance

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with jus in bello restrictions. The actors who hire PMCs have no role in selecting the individuals who will perform the services for which they have contracted. These individuals may have dubious records or, in some cases, lack the skills required to perform the required tasks. In addition, individuals employed by PMCs—as well as the PMCs themselves— can opt to quit where a venture is too hazardous or simply no longer profitable. In the Sierra Leone case, a private firm made exactly this choice. The GSG, who were EO’s predecessors in Sierra Leone, left after sustaining heavy casualties. GSG’s wish to avoid further casualties and to maintain its corporate image, which would have been compromised by more extensive involvement in the conflict, motivated it to break its contract with Sierra Leone. Where jus in bello rules require military personnel to place themselves at risk to save civilians or other vulnerable populations, the discretion of PMCs threatens to undermine these principles. PMCs can terminate their contracts if an operation becomes too risky or unprofitable. When fighting became too heavy in Liberia, DynCorp left ICI, another PMC, “in the lurch” after withdrawing its personnel when fighting became too heavy (Spearin 2005, 246).8 In 1996, ICI had hired DynCorp to provide air transit for peacekeepers in Liberia and Haiti. A few months into the contract, though, the rebels invaded the Liberian capital, Monrovia. Amid growing violence, the founder of ICI, Barry Boquist, fled with others to the US Embassy, only to find that DynCorp had already left. After days of attempting to reach DynCorp, he finally made contact by phone, only to be advised by DynCorp’s US office to “do the best you can to get your personnel out” (Yeoman 2003). A series of disputes between the US government and AGNA, a PMC hired to provide embassy security in Afghanistan, also underscores the lack of control that a state exerts over the PMCs it hires. AGNA consistently failed to provide adequate numbers of guards and those that it did provide were largely Gurkhas from Nepal, who did not have the requisite language skills. These issues—in addition to the reports of hazing and other inappropriate behavior—prompted the State Department to issue nine warnings between July 2007 and April 2009, and even to withhold some of its payment as a contractual remedy (Thompson and Landler 2009). The Gurkhas themselves had a contractual dispute with 8. DynCorp paid no economic price for breaching its contract. On the contrary, it was subsequently awarded additional contracts by a number of US governmental entities; see Spearin (2005).

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AGNA and, according to the Project on Government Oversight, threatened to terminate their services. The dispute twice escalated to the point that buses arrived to take the Gurkas from the embassy to the airport (“POGO Letter to Secretary of State Hillary Clinton regarding U.S. Embassy in Kabul” 2009). The ability of PMCs to walk off the job suggests, correctly, that there are aspects of national militaries that PMCs cannot duplicate. While PMCs possess discretion that national militaries lack and they lie outside the chain of command, in most other respects PMCs more closely resemble combatants than civilians. The functions that PMCs perform place them within the realm of combatants, even if they their formal status places them in the civilian sphere. The divide between combatants and civilians, which was never as sharp as it seemed, evolved as a practical response based on who participated in war and who did not. Beginning with the earliest efforts to exempt some classes of people from the experience of war through the more contemporary principle of noncombatant immunity, this prohibition has been rule-based. Colm McKeogh (2002), who argued that innocence has little to do with noncombatant immunity, attributed this immunity to the rules of the warfare. The definition of who is or is not a combatant and what either status entails “are simply the rules of the game as they stand” (11). These rules, rather than an individual’s innocence or a lack of connection to war, underlie the principle of civilian noncombatant immunity. The reprivatization of force through the widespread use of PMCs has redrawn this boundary and altered those rules so that not all civilians are noncombatants who are, in the formulation of the Geneva Conventions, uninvolved in the war. PMCs now perform functions that were previously performed by the military when the formulation of this distinction between civilian noncombatants and military combatants emerged in the just war tradition. With the reemergence of these private actors, PMCs have effectively bridged that divide by becoming civilian combatants. Those civilian combatants should be subjected to the same rules of restraint and rules of protection as their military counterparts. Responsibility for jus in bello violations may extend beyond the individual PMC personnel who commit them. Responsibility for criminal acts can be shared by more than one actor (Rodin 2002, 63). In the case of PMCs, responsibility may lie not only with those who commit the criminal acts, but possibly also with those who hire them. The elasticity of responsibility underlies the principle of command responsibility. With respect to PMCs,

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there is no commanding officer to be held responsible, but if the jus in bello violations committed by PMCs become so pervasive and severe that they threaten to undermine the war as a whole, then attributing some responsibility to the state seems appropriate. State responsibility for PMC violations seems particularly appropriate if the state has reason to believe that violations will occur based on the prior conduct of a PMC’s personnel. As an example, DynCorp employees were implicated in serious misconduct (including rape and involvement in a sex slavery ring) during the course of their peacekeeping support in the former Yugoslavia (Bures 2005, 541–42). Since then, the United States has contracted with them for additional work, including contracts in Afghanistan (where they were responsible for providing security to President Hamid Karzai), Iraq, and Darfur (Barnett 2003; Chatterjee 2004; Harnden 2002). Should acts like those that formed the basis of the Yugoslavia allegations prove part of a larger pattern of misconduct, it seems reasonable to hold the state morally (if not legally) responsible as well.9 The state that hires the PMC is the outside actor with the most authority over the company, even if it is only the authority to hire and fire. When compared to the position of civilian noncombatant victims, the states that employ PMCs enjoy a considerable degree of power and authority over those PMCs and their individual employees. Certainly the responsibility of the state would depend on the particulars of the situation, whether the violations were foreseeable, and to what extent they were authorized either explicitly or implicitly by the state actor. A blanket imposition of responsibility would seem as unsuitable as blanket immunity. Some have suggested that an advantage of using private force is the ability to avoid responsibility for the acts committed by private troops. Janice Thomson refers to this as an advantage of previous forms of private force, which provide “maximum freedom with minimum responsibility” (1994, 43). Others have cited plausible deniability for the state as an important factor in states’ decisions to hire mercenaries’ contemporary counterparts, PMCs (Gul 2006, 291). Jus in bello rules seek to allocate responsibility for abuses to those actors in a position to prevent or punish violations against those most vulnerable to the horrors of war. While some violations by PMCs and their personnel may be genuinely unforeseeable, allowing states to evade 9. Chia Lehnardt (2007) makes a compelling argument that the state may be held legally responsible for PMC misconduct under certain conditions.

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responsibility for jus in bello violations committed by those acting on their behalf runs counter to the purposes of the just war tradition in general and jus in bello limitations in particular. The corporate nature of the PMC poses additional questions about whether the corporation could also be held responsible for violations of jus in bello norms. As a corporate actor, a PMC possesses legal, and potentially moral, personality. Yet holding the corporation criminally responsible for the jus in bello violations of its employees poses some significant problems. These problems center on the question of whether a corporation can possess the requisite criminal intent necessary to impose responsibility for what are legally and morally blameworthy acts. Those who object to corporate actors being held responsible for their acts emphasize the metaphorical nature of corporate agents’ bodies and, particularly their personality (Gould 2009a). While the personality of a corporate moral actor differs in obvious ways from a natural person, these differences do not preclude responsibility on the part of such actors. Philip Pettit argues persuasively that corporations may, at least under some conditions, be held responsible for their actions. Pettit favors responsibility where a group satisfies three conditions: Value relevance—The group is an autonomous agent that faces a significant choice between doing something good or bad or right or wrong. Value judgment—The group has the understanding and the access to evidence required for making judgments about the relative value of such options. Value sensitivity—The group has the control required for being able to choose between the options on the basis of its judgments about their respective value. (2007, 177) Critics of group responsibility question the autonomy of the corporate actor, specifically the lack of a “mind” capable of forming intent for the commission of criminal acts. Harry Gould (2009a, 717) attributes the elision of body and mind to Hobbes, who referred to the corporate body as a “person,” implying the possession of a mind as well as a body. Although the collective body—or mind—possessed by a corporate moral agent bears in a literal sense, corporate actors do not possess the same type of mind or body that

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natural persons possess. Corporate moral agents possess both a mind and a body, but they bear little resemblance to the minds and bodies possessed by individual moral agents. Collective moral agents like corporations possess mechanisms for making decisions. that function, in effect, like a mind. The outcomes of these procedures are not merely cumulative of the preferences of individuals who are subsumed within the corporate moral agents (Pettit 2007, 181). Collective moral agents cannot be observed directly as individual moral agents can, a fact that often generates skepticism about their existence (Wendt 1999, 215). Yet, the moral personality of corporate actors like states or PMCs is not the only unobservable phenomenon whose existence we can infer from its effects. Scientific realism allows for such an inference where, given the effectiveness of corporate moral agency as an explanation for otherwise unexplainable phenomena, “it would be a miracle if it did not refer to something real” (Wendt 2004). In this case, the autonomous agency of these entities is the only effective explanation for explaining the behavior of corporate actors, particularly where those outcomes cannot be explained by reference to the preferences of individual persons associated with the corporate person. In the case of a corporate moral agent, consistency with prior acts forms an important check on the decisions of corporations, one which may even supersede the majority view of individual decision makers associated with the corporate actor (Pettit 2007, 183). This degree of autonomy separates the corporate moral agents from the individual moral agents through whom it acts, severing its agency from theirs. The potential responsibility of corporate moral persons for their unethical and possibly illegal acts means that there is a third class of actors that may bear responsibility for misconduct of war: PMCs themselves. There are undeniably special challenges in imposing responsibility for compliance with jus in bello norms on corporate moral persons. Corporations, clearly, cannot be subject to some of the same punishments as individuals, such as imprisonment. Still, imposing responsibility on the PMCs themselves may be the only effective manner of restraining them. Much in the same way that holding commanding officers responsible for the criminal acts of their subordinates according to the doctrine of command responsibility, imposing responsibility on PMCs provides an incentive for the companies to restrain the individuals they employ. Despite the reality of these challenges, the

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possibility for holding corporations responsible for their immoral or illegal acts means that they may share responsibility for those acts alongside the individuals they employ and the state actors who hire them.

Conclusion A reformulation of jus in bello norms is a key part of the answer to the challenges posed by PMCs. The lack of fit between PMCs and the national military model does not preclude the application of jus in bello norms to PMC personnel. There is an additional sense in which PMCs do not fit with this model. National militaries have national institutions for the application of these norms. Because the PMC industry is truly transnational, these institutions that are oriented around states are inadequate institutional mechanisms for applying these reformulated jus in bello norms. Resolving the institutional challenge cannot happen without first addressing this prior normative problem. No institution, however well-structured, can function without a suitable set of norms. In this sense, the normative problem is prior to the institutional problem. In their current form, jus in bello rules assume a neat division of those participating in warfare into combatants who wage war and civilian noncombatants who do not participate in the fighting. As such, jus in bello rules and the legal expression of those rules are hard pressed to incorporate civilian combatants who perform functions that are normally carried out by combatants. PMCs and the civilian combatants they employ defy the neat divisions that underlie jus in bello thought and its legal codification in the Geneva Conventions. These divisions classify individuals into one of two categories: combatants within state military institutions or civilians who are removed from war. These divisions frustrate both the restraint and protection of PMC personnel. To the extent possible, these norms should be applied to these civilian combatants who are now performing military functions. In terms of norms, while these principles are rules that have always been formulated to apply to the conduct of individuals, they incorporate some statist assumptions in more subtle ways. Jus in bello rules were underdeveloped when private force last figured into the international system before the emergence of the state and the national military. The norms restricting the conduct of war only became important to just war thought after the

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state consolidated its authority over political violence. As such, these rules rest on assumptions about the state system within which they emerged, particularly the state’s monopoly on the use of political force and the structure of the national military. The context of the state and, to a lesser degree, the national military, is the only context within which jus in bello norms have been influential as part of the just war tradition. The most obvious influence of this context is in the idea of command responsibility, which assumes a hierarchical military. Because PMCs fall outside of this command structure, this principle of command responsibility cannot be replicated within PMCs or within a force consisting of national military and PMCs working together. The absence of a single, hierarchical command structure inhibits compliance with jus in bello rules, but this does not preclude the possibility of rethinking the applicability of these rules and imposing responsibility for violations of these rules. The just war tradition seeks to limit the use of force, both by limiting states’ resort to war and by preventing unnecessary harm, particularly to vulnerable populations, in the conduct of the war. Where those rules are violated, the just war tradition seeks to assign responsibility for those transgressions. The rules of the just war tradition, particularly the jus in bello norms, are conventional in nature because they result from the agreement of parties and evolve in response to changing conditions. The reprivatization of force requires further evolution in jus in bello rules and will constitute the next major force in the development of the just war tradition. If jus in bello rules do not evolve to recognize the reemergence of private force and the significant role that civilian combatants now play in armed conflict, these rules will be ineffective in restricting the use of force. While PMCs lack some aspects of national militaries, jus in bello rules like civilian noncombatant immunity and proportionality have always been in place to regulate the conduct of individual fighters, and rules like those governing POW status have been in place to protect them. In functional terms, the roles of civilian combatants and the roles of combatants have converged to a considerable degree. These rules can limit the conduct of civilian combatants as they have done for the members of national militaries, and they can be held responsible for their own violations just as their military counterparts would be. While the concept of command responsibility does not apply to PMCs, imposing some liability on the states that hire those PMCs may be appropriate, particularly when those states have reason to foresee

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that PMC personnel will commit violations of jus in bello rules such as the principle of civilian noncombatant immunity. This fundamental normative problem stems from a schism between the way that we currently reason about war and the manner in which war is fought. Reformulating the norms is, however, only a part of the problem. The relationship between rules and institutions is symbiotic, so that solving the normative problem alone is not an adequate response to the problems posed by the reprivatization of force. Just as institutions cannot function without a good set of rules, rules also require institutions, formal or informal, to implement them. PMCs also raise an institutional jus in bello problem. The transnational nature of the market for force places PMCs beyond the reach of any one state, a reality that complicates the application of jus in bello rules to civilian combatants. The military counterparts of civilian combatants are subject to the authority of national military justice systems that apply the legal formulation of jus in bello norms to them. The institutional problem mirrors the normative problem in certain ways. Just as the model of the national military does not capture the reality of contemporary armed forces, which contain significant numbers of PMC personnel, the military justice systems for the prosecution of those accused of war crimes does not hold for privatized war. Where members of national militaries are generally tried within their own state’s military justice system, the application of norms to PMC personnel requires an institutional structure that can reach across borders to regulate a transnational market for force that exists alongside national militaries.

Chapter 5

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

The only institution that is truly coterminous with the PMC industry is the global market for force, which resides within the international private sphere. The growing privatization of war raises important questions about the public/private divide as formulated in international relations theory and in international ethics. Martin van Creveld’s (1991) trinitarian model of warfare—in which the government directs, the army fights, and the people suffer—has applied effectively to war since the rise of the national military, but with the reprivatization of force it no longer reflects the manner in which wars are fought. The directing, fighting, and suffering have all been shifted, to varying degrees, to actors on the private side of the public/private divide. This is a development that the contemporary formulation of just war principles cannot easily address. The just war tradition has become heavily invested in the public/private divide, which in the international system falls along the division between state and nonstate actors. The state has become closely tied to its monopoly on political violence, and the just war tradition reflects the assumption that the state possesses a monopoly over the use of

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political violence. The just war tradition previously devoted attention to private actors, including mercenaries, before the state consolidated its monopoly on the legitimate use of political violence. With the rise of the state system, these nonstate actors are now relegated to the private sphere, which places them beyond the scope of the just war tradition’s concern. Actors within the private sphere are not only outside the scope of public concern; the idea of privacy limits the right of the public sphere to monitor or regulate what happens in the private sphere. This idea of privacy poses both empirical and normative problems where actors within the private sphere are performing functions, including the waging of war, that the political culture of the international system treats as public functions to be performed by the sovereign. The dynamics of the private sphere preclude (or, at a minimum, inhibit) public scrutiny of actors that carry out the functions of the state. While private actors are not inherently unknowable, they are generally unknown. This is clearly problematic for the process of applying just war norms to wars carried out by actors on both sides of this public/private divide. While PMCs often act on behalf of states, they are firmly placed within the private sphere. This dynamic underlies many of the more particular problems outlined in the earlier discussions of jus ad bellum and jus in bello norms. The treatment of casualties in privatized war reflects this. As discussed previously, the state keeps careful figures on the number of military personnel killed. By contrast, losses among PMC personnel are tabulated separately and with less care. While the number of PMC personnel lost in war is certainly knowable, the reality is that it is often not known and what is known is counted separately. In contrast to their military counterparts, PMCs operate in the relative obscurity of the private sphere. They are subject to less scrutiny and less control than their public counterparts—national militaries—inhibiting the moral analysis of privatized war and the application of just war norms to entities that inhabit the private sphere. This chapter begins with a discussion of the public/private divide, a concept that itself crosses several theoretical divides. The divide between public and private spheres carries somewhat different meanings within different theoretical traditions. The division is one with political, economic, and social implications. Moreover, the relative significance of each of these spheres has changed over time, particularly with the emergence of the liberal tradition and the market. Despite these differences, there is a clear core of pri-

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vacy that shields certain issues and actors from public view. This overlap means that each of these traditions points to the existence of a private sphere in which the concept of privacy minimizes public scrutiny. I continue by applying this concept of public and private spheres to the international system. At this level, the public/private divide mirrors the division between state and nonstate actors. Just as in the other theoretical formulations of the public/ private divide, events within the private sphere of the international system are obscured relative to those in the private sphere. This international public/private divide generates many of the problems discussed in previous chapters by shielding the activities of PMCs from public scrutiny. To the extent that these PMCs are involved in an activity that has been defined as a public enterprise, their position on the private side of the public/private divide poses real difficulties, which are the subject of the next section of this chapter. I conclude this chapter by considering strategies for bridging the public/ private divide for the purposes of applying just war norms to privatized war.

The Public/Private Divide The private sphere was born alongside and in opposition to the rise of the public sphere. The recognition of a divide between the public and private spheres dates back to the emergence of communities and the political structures for their governance (Arendt 1958, 28). This public/private divide relegates certain types of actors and actions to a public, political domain while consigning other types of entities and behaviors to a private sphere that is outside of the public notice. To the extent that these latter types of spaces are private, they are obscured from public view, along with those who occupy these spaces and the functions they perform. Perhaps most problematically, the division of society into public and private often entails a devaluing or stigmatization of the private so that the private becomes ignorable and is, as a consequence, ignored (Charlesworth, Chinkin, and Wright 1991, 626). While the terminology of public and private has remained constant, over time the meaning and significance of the private sphere, as well as its relationship to the public sphere, have changed significantly. In its earliest incarnations, the public/private divide elevated the public at the expense of the private. As the public sphere came into being, it was generally regarded as more valuable, and therefore superior to the private sphere.

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In contemporary thought, the divide between public and private is a dichotomy that subsumes within it a number of other divisions. As Jeff Weintraub (1997, 2) notes, the distinction between the public and private spheres includes within it a family of related distinctions. Within contemporary usage, Weintraub distinguishes four uses of the public/private terminology: an economic model that distinguishes the state from the market economy; a classical approach that opposes political community to both the state and the market; an anthropological approach that defines the public realm as sociability; and a feminist model that equates the domestic environment of the home with the private sphere and opposes it to the public realm of political and economic life (7). Because the present work focuses on the relationship between the state and PMCs, which are economic entities, I draw upon the economic and classical models of the public/private divide. I will use Weintraub’s terminology to distinguish these two approaches.

The Economic Formulation of the Public/Private Divide The economic characterization of the divide draws the public/private divide along the line between the state and the market. This distinction is a creature of modern liberal thought. In the premodern system, Michael Walzer writes, “Society was conceived of as an organic and integrated whole” (1984, 315). This system lacked the distinctions that have become fundamental to modern society. The “art of separation,” as Walzer calls it, is a creature of political liberalism. The specific separation of the market and the political community creates a sphere of economic freedom in which market participants can make their own bargains (316).1 In the modern system, the market is treated as a realm of self-regulation, governed primarily according to principles of economics. In the words of Karl Polanyi, the self-regulating nature of the modern capitalist market “demands nothing less than the institutional separation of society into an economic and political sphere” (1957 [1944], 71). This is what he calls the disembedded market. While every society has an economic system, these systems were often embedded in society 1. It is worth noting that this view of the market overlooks the fact that the maintenance of free exchange often requires the intervention of the political sphere in the form of institutions and rules; see Walzer (1984).

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prior to the emergence of the modern system. The market that emerged in the nineteenth century, by contrast, was separated from the rest of society. This economic sphere is “motivationally distinct” and “institutionally separated” from the political sphere (68). Under Polanyi’s view, the public and private spheres are mutually constituting and distinct, each governed by a distinct set of laws. In the case of the self-regulating market, these governing laws center on the mechanism of price. The disembedded market’s distinctiveness is derived from the economic motivations of participants, as opposed to the social motivations that distinguished the participants in premodern economic systems (68). Specifically, the search for legitimate profit is what drives the behavior of actors in this economic sphere. The separation of the market from other facets of society means that the market cannot be assessed in terms of the standards that apply to other spheres of activities. In this view of the market there is, for example, no such thing as a “just price” because the language of justice belongs to the political community rather than the market, which operates according to a different set of norms (Walzer 1984, 316). The motivation of market participants is quite distinct from those which drive the actions in the public or social spheres. The growth of the PMC industry reflects many of the ideas embedded in this economic understanding of the private sphere. In particular, states that privatize their military operations by choice, such as the United States and the United Kingdom, do so because they find the view of PMCs as exemplary of an efficient private sector to be compelling. Patrick Cullen identifies the origins of the present global market for force as “decidedly AngloAmerican” (2008, 240). In the “make or buy” decision, these states that choose to resort to the market determine that buying the military capabilities that they need in the short term is a more efficient solution than maintaining a large national military in the long term. Eric Fredland (2004, 210) identifies three hazards that states face with the decision to buy. First, unforeseen contingencies may change the resources need to accomplish an objective, or the objective itself may change. Second, asset specificity may pose problems. Finally, the question of probity, or trustworthiness, can be an obstacle to contracting with PMCs. Despite these potential obstacles, Fredland argues that “national defence is very resource costly, so there is potential for large saving by taking advantage of the high-powered incentives residing in market transactions” (310). These expectations of savings entice the states that resort to the market by choice to meet their security needs through the

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process of contracting. In at least certain cases, buying force on the open market is a more economical alternative to increasing and maintaining a national military. These efficiencies and cost savings feed into the decision to privatize significant components of national militaries. Drawing primarily on the British example, Christopher Coker describes the role of the state as being transformed from that of “owner” to “regulator and inspector” (1999, 102). These states see PMCs as efficient and cost-effective alternatives to maintaining their own state militaries. While many states reduced the size of their standing militaries after the end of the Cold War, this did not inevitably push them toward military privatization to meet their security needs. Rebuilding the state militaries would have been a viable alternative to the turn to the private market. The choice of a market solution to security problems was driven by a combination of factors, many of which stemmed from a proprivatization ideology. In the British case, the move toward privatization was initially prompted by the demands of an IMF loan, which carried with it the condition that the United Kingdom substantially reduce its public expenditures (Edmonds 1999, 120). The Thatcher government embraced this mandate, which was consistent with its ideological commitment to a small state. In Coker’s (1999, 104) discussion of military privatization, he notes that even the British Labour Party, which was initially opposed to privatization of national security functions, continued the trend toward privatization once in office. Similar ideological commitments drive the process of privatization on the US side. Those who advocated privatization of the US military were committed to an ideology of shrinking the state and seeking solutions to public problems in the private space of the market. According to this increasingly influential privatization ideology, “The idea that the marketplace should be the solution gained not only legitimacy but, in fact, became the de facto international model for efficient government and business practice” (Singer 2003, 66). Given this orientation in favor of market solutions even to public problems, it is unsurprising that the US defense establishment also embraced a promarket approach. In 1992, President George H. W. Bush’s secretary of defense Dick Cheney commissioned a report on the potential benefits of military privatization from the firm Brown & Root, which would become one of the early PMC providers to the US government. On the eve of the September 11, 2001, attacks on the Pentagon and the World Trade Center, Pres-

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ident George W. Bush’s secretary of defense Donald Rumsfeld (2001) also championed privatization within the military, expressing a desire to “save [the Pentagon] from itself” through the minimizing of bureaucracy. Rumsfeld described the Pentagon bureaucracy as an adversary that poses a threat, a serious threat, to the security of the United States of America. This adversary is one of the world’s last bastions of central planning. It governs by dictating five-year plans. From a single capital, it attempts to impose its demands across time zones, continents, oceans and beyond. With brutal consistency, it stifles free thought and crushes new ideas. It disrupts the defense of the United States and places the lives of men and women in uniform at risk. (2001, n.p.)

The defense against this adversary that Rumsfeld identified was the market, which he viewed as the antithesis of the military bureaucracy. Nor was support for military privatization limited to Republican administrations. The Clinton administration also anticipated significant savings ranging from $7 billion to $12 billion through the privatization of military services. The administration embraced this belief by, for example, hiring MPRI to carry out US obligations in connection with the Dayton Accords. The self-conscious decision to supplement the capabilities of smaller, post– Cold War militaries with PMCs stems partly from the need for additional capabilities, but also from a faith in the ability of the market as an efficient alternative to the state military. Some evidence suggests that PMCs can indeed provide services at a lower cost that state entities. In 1992, Angola paid EO $60 million for an eleven-day campaign that successfully brought UNITA to the negotiating table, which compares favorably to the $678 million that Angola had spent to maintain its army, which unsuccessfully fought the same war against UNITA rebels (Coker 1999, 108). This ideology in favor of privatization incorporates some assumptions that are problematic, particularly for the project of applying just war principles to private actors. In particular, the dynamic of privatization assumes that all markets and all market participants are essentially equal (Sassen 2006, 198–99). With respect to the private market for force in particular, the distinction between states using private force by choice and by necessity seems highly relevant. This particularly challenges the assumption that market interactions occur among equals. For states that privatize not out of choice but out of necessity,

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such as Sierra Leone, these considerations of efficiency are less significant than are the capabilities that PMCs can supply. Their need for these capabilities may be so dire that they have, in effect, no bargaining power. This inequality manifested itself dramatically in Papua New Guinea’s dealings with Sandline, in which the PMC presented its terms, aside from the payment term, as nonnegotiable. The reality is that poor, weak states in particular lack bargaining power, a reality that essentially places them at the mercy of the PMCs that are capable of providing the coercive capabilities that these states may need. Such circumstances are unlikely to result in economically efficient transactions. Whether or not PMCs are more efficient than state militaries, even in the absence of such inequalities, is open to question. The expected savings from outsourcing government functions often do not materialize. Peter Singer (2003, 155) notes that many factors influence the costs of PMC services. One is intentional overcharging for services. Another is the incentive for PMCs to charge not based on their costs, but on “how much they believe they can get away with” (155). To the extent that the functioning of the market for force is characterized by imperfect competition, further inefficiencies creep into the contracting process. Sheehy and colleagues argue that “while standing armies are expensive, the less accountable and corporately shielded PMCs will almost certainly prove to be more so” (2009, 79). At the very least, the savings claimed by those who advocate the resort to the market deserve careful scrutiny. More fundamentally, the question of efficiency, which has driven the rise of the PMC industry particularly among states that turn to the market by choice, somewhat misses the point of the principles of the just war tradition. The goals of the just war tradition are noneconomic goals. This does not mean that economic considerations like efficiency and just war are inherently at odds. Indeed, the PMC model can fit quite well with certain goals of the just war tradition. The jus in bello norm of proportionality, for example, seeks to limit unnecessary harm. A PMC may have an economic motivation to limit its application of force. Using only the degree of force necessary to achieve an objective minimizes the risk of harm to personnel and damage to equipment, both of which are potentially costly, suggesting a good fit between the economic motivation of the private actor and the goal of the just war principle. What this lack of fit between economic motivations and the noneconomic goals of the just war tradition does mean is that efficiency alone

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cannot substitute for the principles of the just war tradition. Other just war principles may require PMCs to forego economic gains or to bear losses. Jus ad bellum and jus post bello principles may require the termination of war against the economic interests of PMCs. Jus in bello principles that protect vulnerable populations might require that PMCs take costly risks to secure these goals. Purely economic considerations cannot fulfill the purposes of the just war tradition.

The Classical Approach to the Public/Private Divide For the classical approach to the public/private divide, the private sphere is defined less by its economic role and more by its political significance—or, more precisely, its political insignificance. This classical approach has its origins in ancient political theory. Contemplation of the divide between these spheres began with the rise of the city-state, which prompted the ancient Greeks to distinguish between the public and private spheres. The private sphere was driven by wants and needs, while the public sphere was the sphere of citizenship and freedom (Arendt 1958, 30). Aristotle (1984) reinforces this in his comparison of the public space of the polis to the private space of the household. Within the public sphere of the polis, citizens enjoyed a natural equality with respect to one another, while the private sphere is defined by a natural inequality between those who were eligible for citizenship and membership in the public sphere on one hand and those who were confined to the home and ineligible for citizenship on the other (52). There was also a distinct hierarchy between these two spheres defined by the purpose that they served. As Hannah Arendt observed, “Without mastering the necessities of life in the household, neither life nor the ‘good life’ is possible . . . household life exists for the sake of the ‘good life’ in the polis” (1958, 37). Although the private sphere was necessary to the survival of those who had the freedom to leave it and to enter the public sphere, it served a much lower class of needs than those met in the public sphere. The private sphere is the realm of “particularity, transience (life and death), and the body,” which placed it well below the public sphere, which is marked out for distinction by its “universality, permanence, and public recognition” (Coole 2000, 340). As such the private sphere and its occupants were devalued in comparison to the public sphere and those who occupied it in this classical approach.

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With the emergence of liberalism, this relationship between the two spheres would become reversed, with greater value being placed on the private sphere. Liberalism prizes the private sphere as a realm of freedom in which government intrusion is foreclosed. While the classical treatment of the public/private divide treated the private sphere as the inferior sphere, liberalism treated the private sphere as the sphere of liberty and individual equality. This view of the private sphere rests upon the view of individual autonomy as valuable and in need of protection from intrusion by the state (Coole 2000, 341). The exclusion of the private sphere from public life stems from liberalism’s emphasis on individual rights. This idea of privacy reflects an equal value to all private lives, as “what goes on in an ordinary home is as much entitled to protection, and is entitled to as much protection, as what goes on in a castle” (Walzer 1984, 320). The emphasis on rights at the core of liberal thought forecloses some places from state intrusion: “because individuals have rights, there are limits to the power of the government vis-à-vis the individual” (Mnookin 1982, 1429). The space that individual rights shield from public concern is the private sphere. The separation of the private sphere from the public sphere is treated as essential to the preservation of those rights. A respect for the sanctity of the private sphere, including the home, and the liberty of the individuals within it, coupled with a wish to ignore what happens within this private space, renders the private sphere and its occupants, who are mostly women, invisible from the perspective of the state. According to this formulation of the public/private divide, what happens behind closed doors—whether literally or metaphorically—is not the business of the state or even of other individual citizens. There is not only a lack of public knowledge, but also in many cases a wish not to know about the occurrences within the private sphere. This has the effect of shielding from public view this space and the activities that occur there. While “everything that appears in public can be seen and heard by everybody,” forces within the private sphere “lead an uncertain, shadowy kind of existence unless and until they are transformed, deprivatized and deindividualized” (Arendt 1958, 50). Unless this process occurs and makes the private sphere experience palatable for public consumption, the activities and entities within the private sphere remain unseen and unknown. Parties in the private sphere are even guided by a very different set of interests. As Arendt argued, parties in the private sphere are driven by self-interest rather than what she terms

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the “true” interest, or the public interest. “To expect people who have not the slightest notion of what the res publica, the public thing, is,” Arendt contends,” to behave nonviolently and argue rationally in matters of interest is neither realistic nor reasonable” (1969, 78). The occupants of the private sphere place their own private interests ahead of the public interest. This combination of self-interest and the privacy norms that shield activity in the private sphere poses ethical dilemmas when actors in the private sphere perform functions such as war that have been defined by political culture as public. The behavior of the private actors is unknown to those in the private sphere and, as such, likely to be inconsistent with their expectations about the performance of public functions. The involvement of PMCs in armed conflict also embodies aspects of this classical conception of the private sphere, defined in opposition to the public, political sphere. The activities that occur in the public sphere are, almost by definition, subject to publicity. By contrast, things that occur within the private sphere are disregarded or ignored. The secrecy of the private sphere is, at times, a self-conscious component of state strategy. States will often use PMCs for functions that they are reluctant to undertake themselves, largely because these private entities are less visible and only indirectly tied to the state (Howe 1998a, 6–7). This consideration was a key factor in, for example, the US decision to hire MPRI to carry out its obligations under the Dayton Accords. This particular advantage mirrors what Janice Thomson (1994, 43) notes as one of the advantages of using mercenaries in the earlier market for force: doing so allows the sovereign maximum freedom with minimum responsibility. PMCs are actors that are located squarely within the private sphere, placing them largely beyond the control of the state. Despite the real differences between these competing conceptions of the public/private divide, as well as other approaches that I do not consider here, Weintraub finds a core of agreement among them. Specifically, he identifies two respects in which public and private differ from each other: 1. What is hidden or withdrawn versus what is open, revealed, or accessible. 2. What is individual, or pertains only to an individual, versus what is collective, or affects the interests of a collectivity of individuals. This individual/collective distinction can, by extension, take the form of a distinction between part and whole (of some social collectivity) (1997, 5).

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These two potential points of contrast cut across the distinct strands of thought pertaining to the public/private divide; nor are they unrelated to each other. On the contrary, activities or characteristics might be hidden relative to what is in the private sphere precisely because they pertain to the interests or the rights of an individual or a portion of the entire collective social entity. In both respects, the public/private distinction places a partition between the two spheres, shielding the content of the private sphere from the unobstructed gaze of the public sphere. In her treatment of the pubic/private divide, Jean Bethke Elshtain (1981, 6) has claimed that this distinction between public and private spaces exists in a fundamental sense in all but the simplest of societies. International society is no exception to this generalization. This society also created marginalized private spaces that are overlooked, along with their inhabitants. As in the domestic case, at the international level purportedly “apolitical” actors, including the private corporations that I consider here, are also excluded from the international public domain. These actors exist on the private side of the public/private divide that permeates the international system and are treated as being outside the concern of mainstream international relations theories. I argue that this public/private divide, along the boundaries of the state/ nonstate actor divide, also permeates the contemporary incarnation of the just war tradition.

The Public/Private Divide in the International System At the level of the international system, the public/private divide is both broader and more subtle than at the domestic level. Two major factors complicate theorizing about the public and private spheres at the international level. First, the nature of the public sphere at the international level differs from the public sphere in the domestic context because the former lacks the central government that characterizes the latter. The only dispute with respect to these differences between domestic and international contexts is the question of how sharply they differ. For its part, the realist tradition treats the domestic and international contexts as sharply different, seeing the former as a domain of order and authority and the latter as a realm of danger and anarchy. This claim recalls Hobbes’s (1985, 187–88) colorful description of the international system as state of nature, with sovereigns in a posture of

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war, an order that stands in contrast to the peaceful domestic order where individuals submit to governmental authority as a way out of the state of nature. In Hobbes’s formulation, states do not strike the same bargain that individuals do. As a consequence of this view of the international system, realists dispute the existence of a governmental entity, or public sphere, at the international level (Lu 2006, 16). This equation of a public sphere with government underlies this realist claim that the international system lacks a public sphere. The embrace of anarchy as the distinguishing feature of the international system blinds realism to the existence of an international public sphere without which the private sphere cannot exist. Other theoretical traditions acknowledge that these differences may not be so great, seeing the potential for governance through alternative sources of order, even in the absence of government (e.g., Bull 2002). This governance (even in the absence of a centralized government) means that international society is characterized by order, although that order emanates from a decentralized public sphere of state actors. Functionally, this decentralized public sphere performs functions similar to that of the state within the domestic context in terms of maintaining order within the international system. The private sphere at the international level is likewise decentralized, consisting of a variety of nonstate actors: individuals, families, transnational interest groups, NGOs, and corporations that function within states and across borders. Second, international relations theory generally and international ethics specifically have been almost completely preoccupied with the state and the state system.2 In their account of emerging private authority, Claire Cutler, Virginia Haufler, and Tony Porter argue that “the very definition of the field as ‘international relations’ reflects a preoccupation with territorially specific and state-bounded notions of authority that focus on the state as the essential actor and unit-of-analysis” (1999, 17). There certainly are some notable exceptions to this generalization, but the discipline as a whole centers on the state, or the international public sphere, to the exclusion of nonstate actors. At the international level, the line between state or governmental

2. There are, of course, important exceptions to this generalization. A growing body of international relations literature seeks to overcome this statism by focusing on the individual. Within international relations theory, critical theory focuses on individual emancipation; see, for example, Linklater (1998). Within the subfield of international ethics, cosmopolitanism takes a similar approach to global justice.

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actors and nonstate or nongovernmental actors demarcates the boundary between the public/private divide (Lu 2006, 19). The state-centrism derives partly from the emphasis on the state within the domestic political context. Rodney Hall and Thomas Biersteker write: Not only have states been asserted to be the principal actors in the international arena, but they are also considered to be the only legitimate actors in international relations. The authority they exercise over their subjects in the domestic realm conveys to them a legitimacy and agency to interact with other states in the international society of states. (2002, 3)

The gulf between the two sides of the public/private divide is, if anything, wider at the international level than it is domestically, relegating a wider range of actors to the invisible space of the private sphere. Where the formulation of the public sphere in the domestic context can, depending on the particular definitions of public and private, include a variety of activities, including commerce and employment (Youngs 2004, 81), at the international level, all actors that are not explicitly political and connected to the state are relegated to the private sphere. While a corporation might be included within the public sphere domestically, it would certainly be relegated to the private sphere within international society by virtue of its status as a nonstate actor. This focus on the state at the international level is not without justification. There are valid reasons for the state to remain the focus of the discipline, particularly with respect to international ethics. Absent agreement on a particular set of values within the international system, the system’s political culture provides the only meaningful source of ethical norms (Wenar 2002). Because states cannot agree on a comprehensive idea of the good, they must turn to this public culture to support those norms. The public culture of the international system is an important source of values within the international system because of differences between states and the values that they incorporate within their domestic political systems. In the absence of extensive shared value systems, the political culture of the international system provides the most likely source of legitimacy for principles of justice that apply to the international system. The content of this common political culture reflects the norms and values that are shared among the states within international society. One of these is an emphasis on the state as the predominant actor in the international system. Even when other actors, such as individu-

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als, are the subjects of these norms, the norms themselves are often formulated in statist terms. The statism of this culture is, in this respect, important to theorizing about international relations and particularly important with respect to international ethics. The distinction between state and nonstate actors that permeates international relations theory also infuses a great deal of work in ethics broadly and international ethics more specifically. John Rawls’s work is a leading example of this focus on the state. In his work on justice as fairness, Rawls treats the “basic structure” (1999b, 7) of society as the proper subject of justice. This basic structure includes the main political and economic institutions of society—the public sphere—but not those elements of society relegated to the private sphere. Drawing this line between public and private, with the former being the proper subject of principles of justice, is not unique to Rawls, nor is his decision to treat the state as the key actor in his account of international justice. In The Law of Peoples, Rawls (1999a) theorizes exclusively about decent peoples—thinly veiled versions of the state—to the exclusion of private actors. This focus on the state mirrors the formulation of the public sphere at the international level. The persistence of statism in the international system, while significant for the formulation of ethical norms, should not be taken to imply that the context within which these states operate is unimportant. The public/ private divide obscures the incontrovertible fact that the context within which the state operates is changing, and that these changes bear on the manner in which ethical norms apply to the public sphere. Just like at the domestic level, the private sphere and those who occupy it are overlooked in favor of a single-minded concentration on the state. This focus on the state, though justifiable because of these considerations of legitimacy, has the effect of obscuring activities in the private sphere that can significantly skew the application of ethical norms to this public sphere. Actors like individuals or corporations are nonstate actors and therefore part of the international private sphere. These actors, though they function largely outside of public view and lie outside the focus of international relations theory, can nevertheless affect the application of principles that apply to the public sphere. The largely hidden actions of nonstate actors, relegated to the private sphere, can shape the context within which these ethical principles can apply. The public/private divide should not be abandoned at the international level, but it should be made more transparent. The application of just war theory to contemporary

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conflicts—in which nonstate actors play an ever-growing role—illustrates both the problem and the potential solution to the problems created by the public/private dichotomy. While the public/private divide creates problems of applying ethical principles in a meaningful and coherent manner, a public/ private intersection creates the prospect of accounting for the growing role of the private sphere and taking into account the normative implications of the behavior of these private actors.

The Public/Private Divide and the Just War Tradition While the just war tradition has not always been state-centric, the state’s consolidation of authority over the use of force has prompted a similar transition within ethical reasoning about war. With this consolidation of authority, the formulation of just war principles came to rest upon assumptions about the key role of the state. In one particularly notable example, Walzer (2000, 58) relies extensively on an analogy between domestic and international societies, in which states are the “citizens” of the latter. Walzer’s treatment of the state as the key actor within the international system is far from exceptional within the contemporary just war tradition. Both the rules about going to war and the rules about how to wage war incorporate similar assumptions. Jus ad bellum rules, which govern the decision to go to war, are particularly “thought to be the preserve and responsibility of political leaders” (Orend 2006, 31). The decision to wage war belongs to the state’s political leaders (Walzer 2000, 289–92).3 As noted in the previous two chapters, jus in bello rules were underdeveloped before the rise of the state. As such, these rules have only had a significant role in the restraint of war during the post-Westphalian. They are oriented around the public sphere and, as such, incorporate statist assumptions that render them inadequate for addressing privatized war. In their present form, the principles of the just war tradition are oriented around what Rawls would call the basic structure to the exclusion of those actors lying outside this structure. While the model of the state monopoly on political violence remained more or less in force, the just war tradition’s narrow focus on the public sphere 3. Even when just war theorists talk about nonstate actors, they are often actors that are seeking control of a state, as in the case of insurgent movements or civil war.

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was relatively unproblematic. When wars were waged by states and fought by their armies, applying just war principles to the public sphere alone could provide a fairly complete picture of a war’s compliance with just war norms. However, the growing significance of private actors in the fighting of wars means that private actors like PMCs must somehow be included in any analysis of a war’s justice. Setting aside wars in which private entities are belligerents, even wars waged by states include a significant role for private actors. Because of this privatization, assessing the justice of a war by reference to activities within the public sphere alone will provide a picture that is extremely incomplete. In light of the extensive role played by PMCs in contemporary armed conflict, the real issue is how to reconcile the growing role of the private sector with the public functions that they perform. Some view the rise of the PMC industry as redrawing the line between public and private in favor of the private (Coker 1999, 101–2). Alternatively, Patricia Owens suggests that the boundary between the public and private spheres is disappearing, arguing that “the concepts of ‘public’ and ‘private’ no longer served to distinguish between distinct activities” (2008, 987). Yet the treatment of PMCs by the states that hire them does not seem to reflect either a redrawing of this line or the obliteration of the boundary between public and private. States, which are public authorities both in the domestic and the international systems, still make the jus ad bellum decisions about going to war, despite the influence that privatization has over that choice. States also show limited interest in trying to integrate private actors into the public sphere. The division of authority and casualties between public and private forces, and particularly the placement of the latter outside of the chain of command, suggest that states see private actors as outside of the public sphere. Of course, the public/private divide in its current form is not fixed for the future. Owens is correct when she states that “some forms of violence are made public and others are made private through historically varying ways of organizing and justifying force” (990, emphasis in original). But current state practice does not suggest that the boundary has undergone significant transformations since the growth of the market for force. If anything, states have turned to PMCs because they are part of the private sphere. While the role of the private sphere has grown, the balance of authority and the fundamental relationship between the two remains largely unchanged. PMCs and their actions remain relatively hidden in the private sphere. They are outside

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the chain of command, hidden from public view, and only rarely held accountable for their misdeeds.

Bridging the Public/Private Divide Assessing the justness of a war assumes both full access to information about the waging of the war and the ability to hold accountable those responsible for transgressions of just war norms. The fact that a growing number of combatants are now situated within the inaccessible private sphere poses real problems for the moral assessment of wars that include significant involvement by PMCs. This includes both understanding the role of PMC personnel as objects of restraint and protection. The public/private divide inhibits awareness of PMC activities, complicating both of these ends. PMC personnel are problematic in terms of their relationship to conventional understandings of combatants and civilians. The definition of combatants, who are tied to the state, and combatants mirrors the divide between public and private spheres. To make moral sense of privatized war, the just war tradition must bridge the divide between the public and private spheres in order to provide a complete moral picture of any given conflict. In this book, I have considered the just war principles that apply to the decision to wage war and those that seek to impose limitations on the conduct of war. The growing role of private actors in contemporary armed conflict bears on both jus ad bellum and jus in bello rules. A meaningful application of either set of principles requires taking account of actors on both sides of the public/private divide. However, as I have argued, the public/ private divide must be bridged differently with respect to each set of principles. The relationship of the public and private spheres is different with respect to the question of the decision, to which jus ad bellum rules apply, and the execution of that decision, to which jus in bello norms pertain. The manner in which public and private actors are integrated should reflect these real and important differences. While the decision to wage war and whether waging war would be just is influenced by the prevalence of private force, the jus ad bellum decision remains with the state actor. Private actors have, undeniably, started to use force in their own capacity as actors in the postinternational order. Al-Qaeda’s attacks on the United States and other Western targets, as well as the war

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between Hezbollah and Israel indicate that the state is losing its monopoly on political force, to the extent that such a monopoly ever existed. Yet these nonstate actors engaging in the use of force against states are still the exception rather than the rule. While the state now acts alongside these other types of actors, it still retains its predominance in terms of the use of force. This role is still reflected in the political culture of the international system, particularly where the use of force is concerned. Because of the state’s primacy in the context of the jus ad bellum decision, I treat PMCs as an extension of the state. At the stage of the decision about whether or not to wage war, the involvement of PMCs bears on the war effort by making the state more or less capable of fighting the war under consideration. This in turn bears on the range of jus ad bellum considerations. Each of these normative judgments entails some degree of empirical assessment of the relative capabilities of the parties involved. The ready availability of private force to even the poorest of states (like Sierra Leone) means that the assessment of these capabilities becomes even more complicated. The involvement of private actors also complicates the question of which interests are being pursued in the course of the war. While jus ad bellum norms suggest that the purpose of a just war should be the establishment of a just peace, PMCs may have very different goals. Actors in the private sphere may be driven by different sorts of considerations than their counterparts in the public sphere. As corporate entities, they are responsible not to citizens but to shareholders. They are not part of the social framework within which these jus ad bellum principles evolved and are applied. Instead, PMCs operate within a very different social framework in which economic principles apply. The interests of actors within the private sphere differ from the interests of actors within the public sphere. As noted above, Arendt argued that actors in the private sphere are driven by self-interest rather than their “true” or public interest. Despite the divergence between their interests, attributing PMC actions to the state makes sense with respect to jus ad bellum norms both because of the state’s continuing primacy with respect to the use of force and with respect to the normative function of jus ad bellum norms. Pacifist critics of the just war tradition contend that jus ad bellum norms are overly permissive and that the principles serve as, in effect, a check-off list for the licensing of war. When compared against a pacifist position, the norms of the just war tradition certainly do appear permissive. This permissiveness is only relative, however. In reality, the jus ad bellum principles exist

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to restrict resort to war. Their normative function is to restrict states from fighting wars that fail to satisfy the jus ad bellum principles. Aggregating the functional capabilities of states and their PMC partners serves this function. Treating the capabilities of PMCs as capabilities of the state will almost certainly make the jus ad bellum threshold a more difficult test. Proportionality alone becomes more problematic, for example, when losses in the private sphere are added to those in the public sphere. But, if the restrictive role of jus ad bellum principles is taken seriously, making the threshold a higher one is perfectly consistent with this normative function. Of course, even a war that satisfies jus ad bellum criteria must still be waged justly. The growing role of PMCs in warfare also poses jus in bello norms. These norms, which really only came into being within the context of the state system and the national military, are ill-prepared to regulate the conduct of civilians who perform military functions or to apply existing norms to members of PMCs. The last time that private force played a significant role in the international system, jus in bello norms applied only to limited classes of people. These norms bore little resemblance to the broad-based noncombatant immunity principle that forms part of the contemporary just war tradition. Aside from this normative challenge, the PMC industry is transnational and, as such, is at odds with largely state-based mechanisms for applying these norms. Because even transnational institutions like the International Criminal Court depend, to some degree, on the principle of territoriality, applying norms to nonterritorial actors poses problems that did not arise during the period when national militaries were the norm. Deviation from the national military model, particularly the lack of a responsible command structure, decreases the control that states have over the PMCs who act on their behalf. The practice of subcontracting decreases this control still further, as there may be several links in the contractual chain between the state fighting the war and the PMCs providing services in furtherance of that war effort. This new, complex reality means that both the state hiring PMCs as well as the PMCs and their employees may bear some responsibility for violations of jus in bello norms. The state retains some degree of control over the PMCs they hire, even if only by virtue of the terms of the contract. Particularly where a PMC’s violations might be foreseeable (in light of previous problems, for example), the state bears some degree of moral, if not legal, responsibility for those violations. While the current legal and ethical framework treats those outside the structure of the military

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as civilians, the reemergence of the market for private force suggests that this dichotomy, which was always tenuous, is eroding. The sharp divide between soldiers and civilians never truly captured the moral complexities of warfare, but the assumption of previously military duties by PMCs has further chipped away at that distinction. By virtue of the functions they have assumed, PMC personnel now need the same restrictions and protections as soldiers. To this end, I have proposed that PMC personnel be treated as civilian combatants and carry a set of rights and obligations similar to those borne by soldiers. The system of shared responsibility reflects the fact that the state is no longer the only entity engaging in the use of force. My proposal to bridge the public/private divide in order to hold states and PMCs responsible for their role in war necessarily entails an intrusion into the private sphere, which liberalism regards as a realm of privacy and freedom. The performance of public functions by private means justifies this intrusion, as the participation of the private sphere in war frustrates the meaningful moral analysis of war. PMCs now perform functions that were, previously, the purview of soldiers. The rise of the private market for force means that PMCs now perform these functions for states as well as international organizations and nonstate actors. PMCs’ own agency in the international system means that they should be treated as objects of protection and restraint in the same way that members of national militaries are protected and restrained. This does not eliminate the potential responsibility of the state that hired the PMCs. Instead, the system of shared responsibility reflects the realities of the postinternational order in which private actors increasingly exist alongside the state and function both autonomously and in partnership with the state. These two mechanisms for bridging the public/private divide reflect the respective balance between public and private actors on aspects of war to which the jus ad bellum and jus in bello rules apply. This balance between these public and private actors is shaped by the formulation of the public/ private divide as it functions within the contemporary international system. To the extent that the public/private divide is defined by social practice, its boundaries and its purpose are contingent and may be redrawn at some point in the future. It already serves, as noted above, a number of distinct theoretical functions, each with its own particular understanding of where the divide falls and what it obscures. The relationship between the two spheres has changed over time, and like the just war tradition itself, the public/private

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boundary and its allocation of responsibility will undoubtedly continue to evolve with future political transformations within the system. As a moral tradition, the just war tradition is a set of principles that can provide moral guidance even when the conditions to which it is applied change dramatically. Rather than providing a set of fixed and unchanging rules for the fighting of war, the just war tradition provides a set of principles and normative concerns that can be applied meaningfully to the process of war fighting even as this process changes over time. The emergence of the state system and the national military was one instance of systemtransforming change, and the rise of the state with its concomitant centralization of political authority brought about corresponding changes in the principles of the just war tradition. The emergence of the new private market for force is another such transformation. Contemporary armed conflicts are now waged partly by actors who have historically been overlooked as outside the political process represented by the public sphere. However, much in the same way that the just war tradition adapted to the former, it can also evolve to provide moral guidance on the waging of privatized wars. The ability of the just war tradition to continue to form the basis of a moral critique of war depends on its ability to take account of the context of war as it changes. The emergence of PMCs and the ensuing reprivatization of war mean that the principles must now be applied in a manner that likewise bridges the divide between the public and private spheres.

Conclusion The problem of justice and war is uniquely important because of the close connection between the state and its right to engage in the legitimate use of force. The reprivatization of force by means of the rise of PMCs implies that the state is losing its monopoly on political force, a hallmark of the Westphalian state system, particularly since the rise of the national military model. As constituted by the state system, the state alone provided security to its individual members. With the reprivatization of force, PMCs have started to provide this security, albeit on behalf of the state most of the time. The fact that PMCs often serve state interests does not mitigate the fact that the reentry of private force into the system has broken the state’s monopoly on the legitimate use of force. The incorporation of PMCs into the provision of se-

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curity means that security is provided on behalf of the state rather than by the state. As a consequence of this transformation, normative theorizing about the use of force now requires placing the state within the privatized context in which it operates, as entities on both sides of the public/private divide contribute to the waging of armed conflict. While the issue of force possesses special significance because of its centrality to our understanding of the state, is not unique in terms of the challenges that it poses to international ethics and to international relations theory more broadly. If even this core function of the state is becoming privatized and subject to the whims of the market, then understanding the role of private actors will also become key to the performance of other, more peripheral state functions as well. The decentralization of the use of force signals a similar (if not more pronounced) process of decentralization across a broader range of issues that are more peripheral to the nature of the state. Transformations within the international system have allowed individuals and nonstate actors to assume a significantly more active role in the international system than they have played since the emergence of the Westphalian state system. Yale Ferguson and Richard Mansbach argue, “Only a relatively few sovereign states continue to dominate or successfully co-opt important groups that lie within or, increasingly, transcend their boundaries” (2004, 31). As the use of PMCs by states suggests, states themselves sometimes drive the involvement on nonstate actors in areas that were once the exclusive domain of the state, in this case by hiring nonstate actors to engage in the use of force on their behalf. PMCs are far from unique in this sense; many nonstate actors now play an important role in the international system both in terms of war and other issue areas. Where the state once dominated the lives of its citizens, other actors now challenge the state as providers of security, identity, and economic well-being. In terms of the theoretical implications, this decentralization means that more and more of what international relations theory has defined as its subject matter will be carried out by actors who occupy the relatively opaque private sphere. The same key functions that were once associated closely with the state are now performed by both public and private actors, sometimes in concert and sometimes independently. Although the state still enjoys a legitimacy that these other actors do not by virtue of a political culture that continues to recognize its dominance, the circumstances under which the state operates have changed so significantly that the context within which

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the state operates cannot remain in the background of the international system as part of the private sphere. Instead, state actions must be considered along with the contributions of nonstate actors occupying the private sphere. Normative theorizing about these issue areas will likewise need to regard what happens in the private sphere if it is to meaningfully address the ethical implications of a broad range of issues. The privatization of force, because of its centrality to statehood, provides a model for integrating these private spaces (and the actors who occupy them) into normative theorizing about international relations. The approach that I have proposed here recognizes the continuing significance of the state as the primary moral agent within the international system. While the state retains this position by virtue of a global political culture that recognizes its continuing role, this does not negate the real changes in the system. PMCs have assumed an increasingly significant role in the international system. Their significance stems both from their own role in armed conflict as well as the effects that their conduct has for state action. The system of shared responsibility for states and individual PMC employees that I have proposed here recognizes the real and significant changes within the international system. By allocating responsibility for compliance with the norms of just war theory, this system of shared responsibility acknowledges both the moral primacy of the state and the growing significance of nonstate actors in international relations. The recognition of the changes within the international system is key to the just war tradition’s ability to bring moral standards to bear on the use of force. The market for force has become transnational. As such, it is beyond the control of any single state and it is unlikely to disappear from the international system in the foreseeable future. But by virtue of its lengthy history, the just war tradition has certainly endured through other, equally significant, transformations within the international system, including the emergence of the Westphalian system and the state’s consolidation over the use of force. The ability of the just war tradition to respond to these political transformations stems from its normative core, a pragmatic commitment to providing a normative basis for condemning the worst abuses associated with the outbreak and conduct of war. It is this normative commitment, the essence of the just war tradition, that will facilitate the tradition’s adaptation to the reemergence of private force. This adaptation is crucial, not only to the evolution of thinking about justice and war, but also to the just war tradition’s potential to continue to provide a moral critique of war.

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Index

Note: Italic page numbers refer to tables. Abidjan Peace Accord (1996), 15 Abu Ghraib, 8, 9, 126, 127n7 Academi, 16 Aegis, 16n1 Afghanistan, 20–21, 67, 131, 133 Afghanistan war: and jus ad bellum principles, 28; levels of privatization in, 18, 18, 19; US use of private military companies in, 11, 17–21, 77, 79 All Peoples Congress (APC), 14, 15 Al-Qaeda organization, 93–94, 156 Angola, 84–85, 145 Aquinas, Thomas, 37–38, 40–41, 64, 65, 73, 113 Arendt, Hannah, 147, 148–49, 157 Aristotle, 30, 147 Armed Forces Revolutionary Council, 87 ArmorGroup North America (AGNA), 8, 19, 131, 132 Augustine, 37, 72, 117, 128

Australia, 10, 69, 87 Avant, Deborah: on private military companies’ role in security, 58; on private military companies’ role in shaping policy, 93; on Sierra Leone, 15; on social control of private military companies, 13–14; on state’s monopoly on legitimate use of force, 67; on use of private military companies privileging executive branch, 78, 83 Ayala, Don, 19–20 BAE Systems, 19–20 Barlow, Eeben, 57 Bechtel Company, 12 Bell, Sam, 12 Bellamy, Alex, 41, 48, 50, 75–76, 82 belligerents and belligerent movements: and Geneva Protocol II, 55; and law of armed conflict, 53; and noncombatant immunity,

174

Index

belligerents and belligerent (continued) 111, 112; and nonstate actors, 7, 67, 155; private military companies compared to, 54; and proportionality, 121; and unintended casualties among civilians, 109, 112 Biersteker, Thomas, 152 Blackwater, 14, 16–17, 16n2, 24, 91, 115 Boquist, Barry, 131 Bosnia, 75 Bougainville Revolutionary Army (BRA), 10, 87 Branch Energy, 86, 87 Brayton, Stephen, 22, 56 Brooks, Doug, 79 Bush, George H. W., 144 Bush, George W., 129, 145 CACI International, Inc., 9, 126, 127n7 canon law, 36, 37, 65, 108 Catholic Church: in international system, 49; jus in bello norms applied to Church property, 40; and just war doctrine, 39, 48, 65; as political entity, 33, 36, 37, 38, 45, 48 Chatterjee, Pratap, 23 Cheney, Dick, 92, 144 China, 30 chivalric codes, 34, 41, 46 Cicero, 128 civilian combatants: and command responsibility, 126, 128; PMC employees as, 118, 119, 120, 122–23, 126, 130, 132, 136, 137, 138, 159 civilian noncombatants: civilian combatants compared to, 133; combatants distinguished from, 102, 103, 106, 109, 110–11, 113, 114–15, 117, 118, 120, 121, 123, 132, 136, 156, 159; protection for, 130. See also noncombatant immunity; noncombatants civilians: and command responsibility, 125, 126; definition of, 114, 116, 118, 120, 132; distinction in contribution to war effort, 111; and double effect, 113; and noncombatant immunity, 110, 111; protection of, 112, 113; reducing harm to, 121, 123, 131; unintended casualties among, 109, 112 civil wars, 1, 7, 14–15, 52, 55, 66, 67 Clausewitz, Carl von, 83 Clinton, Bill, 145 Coalition Provisional Authority (CPA), 16, 127 Coates, A. J., 111

Coker, Christopher, 118, 144 Cold War, 7, 9, 13, 52, 55, 66, 144 collective moral agents, 134–35 Colombia, 1, 2, 78, 129 combatants: civilian noncombatants distinguished from, 102, 103, 106, 109, 110–11, 113, 114–15, 117, 118, 120, 121, 123, 132, 156, 159; and jus in bello norms, 130; lawful combatant definition, 2–3, 52, 54, 102, 103, 109, 114–15, 116, 126; minimizing casualties among, 121, 122; moral equivalence of, 110n3; as prisoners of war, 128–30; willingness to participate in warfare, 114, 117. See also civilian combatants command responsibility: elasticity of responsibility, 132; and jus in bello norms, 124–28, 132, 135, 137–38, 158; and military privatization, 109, 115, 127–28, 137–38, 155–56 Congo, Democratic Republic of, 12 Contractors on the Battlefield (US Army field manual), 126–27 corporations: and private military companies, 13, 61; and public/private divide, 150, 151, 152, 153; responsibility of, 134–36 Croatia, 21–22 Cullen, Patrick, 143 Cutler, Claire, 58, 151 Czechoslovakia, 50 Darfur, 12, 23–24, 83, 133 Dayton Accords, 21, 145, 149 Defense Appropriations Bill 2008 (US), 69n1 developing states, 12–13 discrimination, principle of, 111 Doenitz, Karl, 112–13 domestic society, international system as analogous to, 6–7, 49, 150, 151, 153, 154 Donelan, Michael, 46–47 double effect, doctrine of, 38, 113–14, 123 Dunigan, Molly, 85 DynCorp, 23, 24, 75, 131, 131n8, 133 East Timor, 13 Economic Community of West African States, 13, 16 Egeland, Jan, 23 Elshtain, Jean Bethke, 150

Index Equatorial Guinea, 70 ethical issues: in international system, 139, 151, 151n2, 152, 153, 161, 162; and law of armed conflict, 108; and nonstate actors, 58–59; and private military companies’ involvement, 24, 29; and statist public culture, 94. See also just war tradition Evergreen International, 12 Executive Outcomes (EO): in Angola, 84–85, 145; combat functions of, 74; image of, 16; recognized states as clientele of, 12; and Sierra Leone, 14, 57, 83, 86–87, 115, 118; and South Africa, 15, 57, 67 Fabre, Cecile, 54 Failed States Index, 80 failing states, 11, 59, 61, 80 Fainaru, Steve, 119 Ferguson, Yale H., 53, 161 feudal system: decentralized nature of, 45; and feudal lords’ right of private war, 34–35; mercenarism in, 5, 35; rival secular authorities within, 33–35, 36, 37, 38, 39, 48, 65; state system compared to, 31, 33, 46 First Gulf War, 11, 23 France, 36, 43, 44, 65, 102 Fredland, Eric, 143 Free Companies, 36 free trade regime, 56, 100, 144 Fund for Peace, 80, 80n5 Gacson mercenaries, 35 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 116 Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 115, 128, 129 Geneva Conventions: civilians definition, 114, 120, 132; and jus in bello norms, 136; lawful combatant definition, 2–3, 52, 109, 114–15, 116, 126, 132; and law of armed conflict, 51–52, 53; prisoner of war detention standards, 1, 3 Geneva Protocol I, 115–16, 117, 122, 125, 126 Geneva Protocol II, 53, 55 Genocide Intervention Network, 12 Geolink, 12 Giddens, Anthony, 42

175

globalization, 53, 54, 56 Gould, Harry, 134 Grand Catalan Company, 36 Gratian (Roman emperor), 37–38, 40, 72–73, 105 Greeks, 105, 147 Gregory VII (pope), 37 Grotius, Hugo, 46–47, 108 group responsibility, 134–35 Guantanamo Bay detainees, 129–30 Guevara, Che, 2 Guinea, 16 Gurkhas, 131–32 Gurkha Security Guards (GSG), 15, 131 Hague Conventions of 1899 and 1907, 51 Haiti, 131 Hall, Rodney, 152 Halliburton, 92 Haufler, Virginia, 58, 151 Heinze, Eric A., 94 Helman, Gerald, 80 Hezbollah, 94, 157 Hobbes, Thomas, 134, 150–51 Holy Roman Empire, 33, 36 Howe, Herbert, 92 humanitarian intervention, 51, 68, 76n4, 82, 89 human rights violations: and Croatia’s Operation Storm, 22; and failing states, 80; and just cause, 76, 98; and Papua New Guinea, 87; and responsibility to protect (R2P) doctrine, 76–77 human terrain teams, 19–20 Hundred Years War, 33–34 individual rights, 51, 148, 150 Ingierd, Helene, 64–65 International Charter Incorporated of Oregon (ICI), 13, 131 International Committee of the Red Cross (ICRC), 51–52 International Criminal Court, 158 international institutions, 47–48 international law: combatants distinguished from noncombatants, 114–15; humanitarian law, 85; and irregular warfare, 53; and jus in bello norms, 107–8; and just war tradition, 103–4; theories of, 47

176

Index

International Monetary Fund (IMF), 22, 144 international organizations: as employers of private military companies, 10, 12, 61, 74, 159; and just war tradition, 50–52; and legitimate authority principle, 66 international relations theory: and public/ private divide, 139, 151; and reprivatization of force, 13, 29, 31, 50; and state’s monopoly over use of force, 43, 58, 161; statist assumptions of, 13, 151–52, 151n2, 153 International Security Assistance Force (ISAF), 18, 20 international system: domestic context as analogous to, 6–7, 49, 150, 151, 153, 154; erosion of state’s monopoly over use of force, 31; ethical issues in, 139, 151, 151n2, 152, 153, 161, 162; evolution of, 5, 31, 32, 42, 46, 47, 54, 162; forms of conflict in, 52; Hobbes on, 150–51; and just war tradition, 29, 30–31, 42; mercenaries in, 66; nonstate actors in, 7, 49–50, 54, 55, 58, 61, 66–67, 93, 105, 151–52, 153, 161, 162; political culture of, 152–53, 157, 161–62; private military companies as component of, 27, 31, 60, 77, 100, 159, 162; and privatization ideology, 144; and public/private divide, 27, 29, 58–59, 139, 140, 141, 150–56, 159; and sovereign equality, 48–49; state displacing private actors in, 6, 49; state’s emergence as key moral actor in, 26–28, 29, 31, 49–50, 54, 61, 93, 94, 95, 102, 153, 162; statist characterization of, 27, 31, 50, 51, 54, 58, 62, 94, 152–53; United States as dominant power in, 11. See also postinternationalism International Traffic in Arms Regulation 1998 (ITAR, US), 69–70 Iraq war: and Blackwater, 16–17, 24, 115; and Fallujah campaign, 17, 24, 91; and jus ad bellum principles, 28; lack of discernible vanguard or rear in, 8, 24; Nisour Square massacre, 16, 17; and official casualty figures, 25; ratio of PMC employees to US military personnel, 25; South Africa’s use of private military companies in, 68; and Triple Canopy, 119; US use of private military companies in, 11–12, 16–17, 77, 79, 90, 91, 127, 130, 133 Isenberg, David, 127 Israel, 94, 157 Italian city-states, 43

Johnson, James Turner, 41, 66, 76 jus ad bellum norms: absolutist view of, 51; ancillary norms, 64, 81–93; application to military privatization, 93–95, 96, 97–101, 106, 155; criteria of, 24–25, 31, 40, 100; on decision to wage war, 24n3, 25, 27, 28, 36–37, 59, 81, 94, 95, 97, 99, 102, 104, 110, 155, 156–58; and declaration of war, 49, 66; development of, 62; and doctrine of double effect, 38; evaluation of relative capabilities of parties, 63–64, 157; and international treaties, 47–48; jus in bello norms’ relationship to, 29, 32, 42, 51, 103, 104–7; and just cause principle, 10, 32, 36, 37, 38, 39, 40, 41, 42, 48, 49, 59, 64, 65, 71, 75–81, 97, 98, 100, 105; and just peace, 91–93, 98, 106, 122, 157; and last resort, 64, 81–83, 98, 100, 137; and legitimate authority principle, 24n3, 25, 32, 36, 37–38, 39, 41, 46, 48, 52, 63, 64–75, 97, 99–100, 105; in Middle Ages, 32, 36–39; normative function of, 157–58; ongoing assessment of, 25, 88, 95, 97, 98, 106; and private military companies, 28, 62, 63–64, 140, 147; procedural aspects of, 48–49; and proportionality of good to costs of war, 28, 38, 41, 49, 64, 88–91, 95, 98, 99, 100, 120, 121–22, 123, 158; and public/private divide, 154, 156, 157; and reasonable chance of success, 25, 28, 64–65, 81, 83–88, 95, 98; and systems of responsibility, 59 jus in bello norms: Aquinas on, 40–41, 64, 65; assumptions of, 26, 31, 102–3, 106–7; chivalric codes on, 41; and command responsibility, 124–28, 132, 135, 137–38, 158; and conduct of war, 26n4, 27, 28–29, 32, 36, 40, 42, 62, 101, 102, 104, 105–6, 120, 130, 136–37; continual application of, 106; and holy war doctrine, 39, 49; and international treaties, 47–48; jus ad bellum norms’ relationship to, 32, 39, 42, 51, 103, 104–7; and just peace, 106; and law of armed conflict, 51–52, 107–8, 124, 125, 127; legal rules tracking, 117; in Middle Ages, 36, 39, 40–42; and military privatization, 101, 106, 107; and noncombatant immunity, 40–41, 42, 109–20, 137, 138, 158; and nonstate actors, 51, 102, 103, 156, 158; and prisoners of war, 109, 128–30, 137; and private military companies, 26, 28–29, 60, 62, 102, 103, 109, 130–36, 138, 140, 146, 147, 158,

Index 159; and privatized wars, 106–7, 109, 130, 138, 154; and proportionality, 109, 113, 114, 120–23, 137, 146; and public/private divide, 156; reformulation of, 136, 137, 138; and shared responsibility between states and private military companies, 29, 59, 60, 95, 101, 157–58, 159; and state system, 62, 102, 156, 157; statist assumptions of, 104, 106, 130, 136–37, 154, 158; and status of individuals, 40, 42, 72–75, 101, 104, 110, 114, 115, 136–37; and systems of responsibility, 59–60; and vulnerable populations, 104, 107, 109, 131, 137, 147 jus post bellum norms, 92–93, 98 just war tradition: and accountability, 156; application to privatized war, 27, 29, 60; and canon law, 36, 37, 65, 108; consensus on key principles, 7, 24; and detention of prisoners, 8; effect of political developments on, 27, 28, 29, 31; effect of state system’s emergence on, 31; evolution of, 6, 26, 27, 28, 29, 30–31, 37, 60, 61, 101, 137, 139–40, 159, 162; and holy war doctrine, 39, 47, 48, 49, 75–76; and intention, 38, 72, 73, 91, 110, 114, 117, 134; and international law, 103–4; and international organizations, 50–52; and international system, 29, 30–31, 42; and irregular warfare, 52–53; and law of armed conflict, 108; limits on use of force, 137; in Middle Ages, 31–42, 46, 48, 65; and moral consistency between war’s ends and means, 106; as moral tradition, 160; and multiple agents responsible for same actions, 59–60, 132, 162; and natural law, 108, 108n2; noneconomic goals of, 146–47; and nonstate actors, 63, 67, 154, 154n3, 155, 156; and postinternationalism, 52–60, 156–57, 159; and private military companies, 4, 10–11, 13, 20, 24, 28, 54, 57, 60, 61, 62, 100, 146–47, 155, 156; and public/private divide, 13, 62, 139, 140, 150, 154–56; purpose of, 97, 99, 100–101, 146–47, 157; and reprivatization of force, 4, 13, 29, 31, 50, 55, 56, 58, 61, 62, 160; and scholasticism, 36, 37–39; secularization of, 47; and state system, 4, 25, 42–52, 54, 60–61, 62, 63, 64; statist assumptions of, 4, 14, 26, 27, 29, 31, 32, 46–47, 58, 61, 62, 92, 139–40, 154. See also jus ad bellum norms; jus in bello norms; jus post bellum norms

177

Kabila, Laurent, 12 Kaeuper, Richard W., 34 Kaldor, Mary, 53 Kant, Immanuel, 77–78, 79, 92 Karzai, Hamid, 133 KBR (formerly Brown & Root), 115, 119, 144 Kinsey, Christopher, 16, 53 Kosovo, 104n1, 121n4 Lackey, Douglas, 120 Laconia, 112 Laconia Order, 112–13 Lango, John W., 82 lawful combatants: definition of, 2, 3, 52, 54, 102, 103; Geneva Convention definition of, 2–3, 52, 109, 114–15, 116, 126, 132 law of armed conflict (LOAC), and jus in bello norms, 51–52, 107–8, 124, 125, 127 League of Nations, 50 Leander, Anna, 92, 93 legal positivism, 46–47, 108 Lehnardt, Chia, 133n9 liberalism, 142, 148, 159 Liberia, 131 l’Isle Jourdain, Jourdain de, 34 London, J. P., 9 Luther, Martin, 91 Lynch, Tony, 118 Machiavelli, Niccolò, 6, 36 Mandel, Bob, 10 Mansbach, Richard W., 53, 161 manufacturing, outsourcing of, 56 market: assumption of market participants as equal, 145–46; disembedded market, 142–43; efficiency of, 10, 13; free-market values, 10, 55, 56, 61, 100, 144–45; ideology of free trade regime, 56, 100, 144; and pro-privatization ideology, 144–45; and public/private divide, 142–43, 142n1; transnational market for private force, 3, 9, 14, 18, 25, 54, 66, 74, 78, 90, 99, 103, 104, 136, 138, 139, 143, 145, 146, 155, 159, 160, 162 McKeogh, Colm, 132 mercenaries and mercenarism: historical role of, 4, 5, 30n1, 35, 57–58, 61, 62, 72, 73–74, 79, 84; and image of Executive Outcomes, 16; in international system, 66; and just war

178

Index

mercenaries and mercenarism (continued) tradition, 140; and lack of responsibility of sovereign, 149; Luther on, 91; market for, 36, 43–44, 45; and military training, 15; private military companies contrasted with, 9, 58, 62, 67, 84, 115–16; prohibition of, 6, 67, 68; Protocol I definition of, 115–16; and routiers, 73–74; specialties of, 35–36; strengths and shortcomings of, 118–19. See also private force Middle Ages: ecclesiastical and secular political entities, 33, 36; just war tradition in, 31–42, 46, 48, 65; and limitations on conduct of war, 105; mercenaries used in, 73, 74, 84; political context of, 32–33, 36, 105; private force in, 5, 35–36; systems of authority in, 33. See also feudal system military privatization: and ancillary jus ad bellum norms, 64, 81–93; application of jus ad bellum norms to, 93–95, 96, 97–101, 106, 155; challenges to jus in bello norms, 104, 109, 118; challenges to national military model, 106, 107, 136; and command responsibility, 109, 115, 127–28, 137–38, 155–56; and free-market values, 10, 56, 61, 100, 144–45; and jus in bello norms, 101, 106, 107; and just cause, 77–78, 79, 80–81, 98, 100; and just peace, 91–93, 98, 122; and just war tradition, 145, 155; and last resort, 82–83, 98; and legitimate authority, 97; and line between combatants and noncombatants, 117; origins of market for, 9–10; and proportionality, 90–91, 98, 100, 122; and pro-privatization ideology, 144–45; and psychological distance between decision makers and war, 81; and reasonable chance of success, 84–88, 98; strategic realities of, 88. See also private force; private military companies (PMCs); privatized wars Military Professional Resources Inc. (MPRI), 12, 21–22, 70, 145, 149 military training, and private military companies, 8, 11, 15, 19, 21–22, 74, 85 Mobutu Sese Seko, 12 Momoh, Joseph, 14 multinational peacekeeping forces, 66 Nardin, Terry, 26 National Conventional Arms Control Committee (NCACC), 67–68

nationalism, Enlightenment ideals of, 44 national militaries: command responsibility in, 124–26, 158; and definition of lawful combatant, 54, 102, 103; history of, 30n1, 43, 44–45, 57–58; inadequacies of, 9–10; and jus in bello norms, 106, 130, 138, 158; justice system of, 138; and just war tradition, 25, 32, 46, 61, 62; mercenaries compared to, 118–19; model of, 4–5, 6, 61, 62, 63, 65, 102, 103, 106, 107, 109, 124, 126, 130, 136, 137, 138, 158, 160; official casualty figures limited to, 25, 79, 90, 98, 100, 122, 123, 140, 155; private military companies’ effect on effectiveness of, 85–86, 146; private military companies enhancing chances of success, 84, 88; private military companies’ loyalties compared to, 56; private military companies outside of military hierarchy, 26, 28, 70, 103, 109, 115, 117, 124, 126–27, 132, 137, 155; private military companies performing functions of, 4, 14, 17, 27, 84, 90, 118; private military companies providing logistical support for, 22–24, 26; private military companies undermining model of, 102, 103, 109, 136; reduction in size of, 55, 100, 144, 145; of Sierra Leone, 14–15; states’ control of, 70; states’ costs of maintenance of, 143–44, 145, 146; structural changes in, 46 National Provisional Ruling council (NPRC), 15, 86 National Union for the Total Independence of Angola (UNITA), 84, 85, 145 natural law, 46, 47, 108, 108n2 neoliberal ideology, 56 neutrality, 5, 6, 22, 44 Nisour Square massacre, Iraq, 16, 17 noncombatant immunity: and civilians, 110, 111; and distinction between combatants and civilians, 113, 132; and doctrine of double effect, 113, 114, 123; and jus in bello norms, 40–41, 42, 109–20, 137, 138, 158; as principle of discrimination, 111 noncombatants: and just war tradition, 101; and PMC employees’ ambiguous status, 104, 120, 122, 128, 129, 130; religious pilgrims as, 105, 109; Walzer on, 111, 114, 117. See also civilian noncombatants nongovernmental organizations (NGOs), 4, 13, 151

Index nonstate actors: in Afghanistan war, 20, 21; agency of, 59; and commercialization of politics, 53; as employers of private military companies, 4, 11, 12; Grotius on, 46, 47; independence of, 5; in international system, 7, 49–50, 54, 55, 58, 61, 66–67, 93, 105, 151–52, 153, 161, 162; and jus ad bellum norms, 156–57; and jus in bello norms, 51, 102, 103, 156, 158; and just war tradition, 63, 67, 154, 154n3, 155, 156; lack of right authority, 71; participation in armed conflict, 55; private military companies as, 90, 91, 122; and public/private divide, 58–59, 62, 139, 140, 141, 151–52, 153; role converging with states’ roles, 94, 161; states’ licensing of, 43, 67; in state system, 42, 43, 49, 51, 53–54, 65, 79, 95, 140, 162; use of force, 25, 71, 93–94, 159 North Atlantic Treaty Organization (NATO), 18, 20, 21, 66, 69, 104n1 Northrop Grumman Corporation, 2, 129 O’Donovan, Oliver, 108n2 Operation Storm (Croatia), 22 Orend, Brian, 92–93 Owens, Patricia, 155 Papua New Guinea, 9–10, 87–88, 146 peace: democratic peace, 77, 78, 79; just peace, 91–93, 98, 106, 122, 157 peacekeeping, 13 Peace of Westphalia (1648), 5, 42n2, 43, 45, 63 Pentagon, 25, 90, 123, 145 Percy, Sarah, 35, 116 Peter the Chanter, 73, 73n2 Pettit, Philip, 134 Philippines, 124 Plato, 105 PMC employees: ambiguous status of, 104, 120, 122, 128, 129, 130; casualties of, 25, 79, 90–91, 98, 100, 122–23, 131, 140, 155; as civilian combatants, 118, 119, 120, 122–23, 126, 130, 132, 136, 137, 138, 159; civilian status of, 3, 104, 106, 109, 116–18, 120, 123, 130, 132; as combatants, 115; and command responsibility, 126, 127–28; connection with citizens, 78–79; connection with employers, 74, 75; contracts of, 127, 131–32; criminal penalties imposed on, 70; and definition of lawful combatants, 109; and definition of

179

mercenaries, 116; ethical evaluation of conduct, 118; interspersed with military personnel of state, 84, 126; and jus in bello norms, 104, 106, 120, 130, 136, 138, 158; misconduct of, 119–20, 126; as objects of restraint and protection, 156, 159; as prisoners of war, 128–30; resembling military personnel, 103, 104, 106, 122, 123, 130, 132, 137, 159; tried in US military justice system, 16–17; US regulation of, 69n1, 103. See also private military companies (PMCs) Polanyi, Karl, 142–43 politics: avoidance of political costs, 23–24, 78, 83; Catholic Church as political entity, 33, 36, 37, 38, 45, 48; commercialization of, 53; in Middle Ages, 32–33, 36, 105; political culture of international system, 152–53, 157, 161–62; states’ legitimate use of political violence, 3, 4, 6, 13, 58, 65–71, 74, 93, 99, 103, 160; states’ monopoly over political violence, 6, 7, 11, 20, 21, 25, 26, 29, 31, 32, 42–43, 53, 54, 58, 60–61, 63, 65, 93, 99, 137, 139–40, 154–55, 157, 160, 162 Porter, Tony, 58, 151 postinternationalism, 52–60, 156–57, 159 prisoners of war (POWs): classification of, 2, 3; and command responsibility, 124; Geneva Convention standards for detaining, 1, 3; and jus in bello norms, 109, 128–30, 137; and just war tradition, 101; and submarine warfare, 112; and Third Geneva Convention, 115, 128, 129 privacy, and public/private divide, 140–41, 148, 149 privateers, 43, 67, 70, 79 private force: avoiding public or legislative scrutiny with, 23–24; distance of population from war, 79; fluidity of, 25, 127, 127n6; history of, 4–5, 13, 57–58, 74, 93, 136; marginalization of, 6, 45; in Middle Ages, 5, 35–36; reemergence of, 31, 45, 63, 64; reprivatization of force, 4, 13, 29, 31, 50, 55, 56, 58, 61, 62, 78–79, 103, 117, 123, 132, 137, 138, 139, 159, 160; states authorizing, 67; transnational market for, 3, 9, 14, 18, 25, 54, 66, 74, 78, 90, 99, 103, 104, 136, 138, 139, 143, 145, 146, 155, 159, 160, 162. See also mercenaries and mercenarism; private military companies (PMCs)

18 0

Index

private military companies (PMCs): activities on behalf of state considered as state’s own actions, 28, 31; agency of, 59, 60; and avoidance of political costs, 23–24, 78, 83; branding of, 35; combat functions of, 8, 9, 14, 16, 17, 24, 27, 79, 84–85, 103, 117; and command responsibility, 126, 127–28, 137, 155; and contract compliance, 127; contracts of, 70, 131–32, 158; as corporate actors, 56–57, 79–80, 134, 146, 157; and definition of lawful combatants, 2, 3; economic interests of, 91, 92, 93, 98, 122, 130, 146–47, 157; factors contributing to rise of, 4, 55–56; factors influencing costs of services, 146; as force multipliers, 84, 88; functions of, 2, 4, 8, 11, 19, 27, 59, 70, 74–75, 84–85, 88, 93, 94, 99, 103, 117, 132, 155, 159, 160; growth of industry, 7–9, 10, 11, 28, 61–62, 63, 67, 71, 77, 103, 107, 117, 139, 143, 160; influence on policy, 92, 93; integration into national military, 127n6; jurisdiction of, 14; and jus ad bellum norms, 28, 62, 63–64, 140, 147; and jus in bello norms, 26, 28–29, 60, 62, 102, 103, 109, 130–36, 138, 140, 146, 147, 158, 159; and just cause, 98; and just war tradition, 4, 10–11, 13, 20, 24, 28, 54, 57, 60, 61, 62, 100, 146–47, 155, 156; and legitimate authority principle, 67, 70–71; licensing of, 20, 25, 67–70, 103; lobbyists for, 80; logistics function, 4, 8, 11, 19, 22–24, 66, 70, 75, 85, 115, 117; market for, 9–10, 55; mercenaries contrasted with, 9, 58, 62, 67, 84, 115–16; military training function, 8, 11, 15, 19, 21–22, 74, 85; and new wars, 53; opaque operation of, 3, 10, 25, 27, 28, 91, 119; as outside of military hierarchy, 26, 28, 70, 103, 109, 115, 117, 124, 126–27, 132, 137, 155; and private sphere, 27, 29, 62, 91, 139, 140, 155–56; profits of, 79, 92, 118, 122; prolonging conflict, 92; and proportionality, 122–23; public trading of, 9, 10, 56, 57; responsibility for misconduct of war, 135–36; shareholders of, 56, 57, 157; social control of, 13–14; states as employers of, 4, 9–11, 12, 29, 56–57, 61, 62, 75, 99, 101, 155, 160–61; states conferring legitimacy on, 54; states’ decision to buy, 143–44, 145; states’ lack of control over, 70–71, 122, 149, 158; and states’ plausible deniability, 133; states sharing responsibility with, 29, 32, 59, 60,

95, 101, 133–34, 133n9, 136, 137–38, 157–58, 159, 162; states’ transitory economic relationship with, 95; subcontractors of, 127, 158; support function, 4, 8, 9, 26, 74–75, 85, 103; undermining model of national military, 102, 103, 109, 136; webs of opposing contractors, 12–13. See also PMC employees Private Security Database (PSD), 11 Private Security Industry Regulatory Authority (PSIRA), 68 private sphere: classical model of, 147, 148, 149; economic model of, 143; interests of actors in, 148–49, 157; in international system, 54, 58, 59, 151, 152, 153; and liberalism, 148, 159; and private military companies, 27, 29, 62, 91, 139, 140, 155–56; public scrutiny precluded by, 62, 91, 140, 141, 155–56, 161. See also public/private divide private war, 34–35, 38, 41, 73 privatized wars: Afghanistan war as, 18, 19; and casualties, 91, 140; and command responsibility, 127–28; jus ad bellum norms for, 62, 97–99, 101, 106; jus in bello norms for, 106–7, 109, 130, 138, 154; just war tradition applied to, 27, 140, 141, 156, 160; and public/private divide, 139, 140, 156. See also military privatization Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict 2006 (South Africa), 68–69 Project on Government Oversight, 19, 132 Protocol I Additional to the Geneva Conventions, 115–16, 117, 122, 125, 126 Protocol II, Geneva Conventions, 53, 55 public/private divide: anthropological approach to, 142; and application of public ethical principles, 29, 58–59; bridging of, 13, 25, 29, 62, 156–60, 161; and casualties, 90, 140, 155; classical model of, 142, 147–50; as defined by social practice, 159; economic model of, 142–47; evolution of, 159–60; feminist model of, 142; and individual/ collective distinction, 149–50; of international system, 27, 29, 58–59, 139, 140, 141, 150–56, 159; and just war tradition, 13, 62, 139, 140, 150, 154–56; and market, 142–43, 142n1; and privacy, 140–41, 148, 149; and private military companies, 155, 156; and privatized wars,

Index 139, 140, 156; and state system, 62, 141, 142; terminology uses, 142 public sphere: classical model of, 147, 149; as domain of political concern, 58, 59; interests of actors in, 157; international context compared to domestic context, 150, 151, 153; and just war tradition, 154–55; motivation of market participants distinct from, 143; and national militaries, 27; redundancies of, 10; relationship to private sphere, 140, 141. See also public/private divide Ratner, Steven, 80 Rawls, John, 46n3, 106, 153, 154 realist tradition, 150, 151 rebel groups, 4, 12, 54 Regan, Richard, 106 regional authorities, 53, 55 Regulation of Foreign Military Assistance Act 1998 (RFMA, South Africa), 57, 67–68 Reichberg, Gregory, 32 responsibility to protect (R2P) doctrine, 76–77 Revolutionary Armed Forces of Colombia (FARC), 1–2, 3, 129 Revolutionary United Front (RUF), 14–16, 83, 86, 87 risk analysis, 8 Rodin, David, 104n1 Roman empire, 5, 33 Rousseau, Jean-Jacques, 44, 74 Rumsfeld, Donald, 126, 145 Rwanda, 12 Ryan, Cheyney, 77–78, 98n7 Sandline, 9–10, 16, 74, 87–88, 146 Sankoh, Foday, 14–15 Saracen, 12 scholasticism, 36, 37–39 Scots mercenaries, 35 security issues, 8, 9–10, 56, 80, 92, 98 security services, 4, 8, 58, 66, 68, 70, 86, 143–44 self-defense: anticipatory self-defense, 76n4; Aquinas on, 38; and citizen armies, 44; and holy war doctrine, 39; and jus ad bellum norms, 82, 104; and just cause, 48, 76, 77, 81, 98; law enforcement function as justification for, 49; and private military companies, 70; and proportionality, 89; right to, 7; and United Nations Charter, 51, 104

181

Senate Armed Service Committee, 126 September 11, 2001 attacks, 144–45 Serbia, 21, 22, 121n4 Shakespeare, William, 89 Shannon, Ulrich, 87 Shearer, David, 86–87, 86n6, 92 Sheehy, Benedict, 126, 146 Sidgwick, Henry, 114 Sierra Leone: arms embargo on, 16; and Executive Outcomes, 14, 57, 83, 86–87, 115, 118; and Gurkha Security Guards, 15, 131; military junta in, 15–16; and military privatization, 146; national military of, 14–15, 118; and Sandline, 16, 87 Simons, David, 56 Singer, Peter: on Croatia, 22; on Executive Outcomes, 57; on factors influencing cost of private military companies’ services, 146; on functions of private military companies, 8, 70, 74–75, 84, 99, 115; on history of warfare, 30n1; on Papua New Guinea, 87; on state’s monopoly on legitimate use of force, 67 Sjoberg, Laura, 82 Slatten, Nicholas, 17 South Africa, 15, 55, 57, 67–69, 103 South African National Defence Force, 87 sovereignty: and consent of sovereign state, 47, 108; developing definition of, 5–6, 7, 13, 43; in Middle Ages, 34–35; principle of sovereign equality, 32, 45, 47, 48–49; protection of sovereign state, 7, 46 Soviet Union, 55 Spicer, Tim, 16n1 Stanger, Allison, 79 state failure, 11, 80, 88 states and state system: activities of private military companies considered as state’s own actions, 28, 31; authority within states, 6, 25, 31, 32, 33, 42, 44, 63, 160; citizens’ relationship with, 44–45, 75, 77–79, 100; decentralization process, 161–62; evolution of, 31, 32, 42, 45–46, 48, 108, 136, 160; and institution of sovereignty, 5–6, 7, 13, 32, 45, 46; and international relations theory, 13, 151–52, 151n2, 153; interstate wars, 52; and jus ad bellum norms, 156, 157; and jus in bello norms, 62, 102; and just war tradition, 4, 25, 42–52, 54, 60–61, 62, 63, 64; and legitimate use of political violence, 3, 4, 6,

182

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states and state system (continued) 13, 58, 65–71, 74, 93, 99, 103, 160; and mercenaries, 43–44, 61, 79; monopoly over political violence, 6, 7, 11, 20, 21, 25, 26, 29, 31, 32, 42–43, 53, 54, 58, 60–61, 63, 65, 93, 99, 137, 139–40, 154–55, 157, 160, 162; and nonstate actors, 42, 43, 49, 51, 53–54, 65, 79, 95, 140, 162; outsourcing of core functions to private actors, 56, 59, 146; proprivatization ideology, 144–45; and public/ private divide, 62, 141, 142; and restrictions on warfare, 48, 49, 50–51; reversal of state monopoly on force, 4, 25, 31, 32, 55–60, 61, 62, 63, 64, 67, 71, 93, 97, 99, 103, 157, 160; and shared responsibility with private military companies, 29, 32, 59, 60, 95, 101, 133–34, 133n9, 136, 137–38, 157–58, 159, 162; and state as key moral actor in international system, 26–28, 29, 31, 49–50, 54, 61, 93, 94, 95, 102, 153, 162; states as employers of private military companies, 4, 9–11, 12, 29, 56–57, 61, 62, 75, 99, 101, 155, 160–61; violence within states, 52–53. See also national militaries Steele, Brent J., 94 Stefanowicz, Steven, 9 Stevens, Siaka, 14 Strasser, Valentine, 14–15 Strategic Resource Corporation, 86 Suarez, Francisco, 72 submarine warfare, 112–13 success: definitions of, 20–21, 83; reasonable chance of, 25, 28, 64–65, 81, 83–88, 95, 98 Sudan, 12, 23–24 Sun Tzu, 124, 124n5 Sweden, 69 Swiss mercenaries, 35, 43, 74 Syse, Henrik, 64–65 Taguba report, 9 Taulbee, James Larry, 118–19 Taylor, Charles, 14 terrorism, 67, 71, 93–94 Thatcher, Margaret, 23, 144 Third Lateran Council of 1179, 73–74 Thomson, Janice, 5, 54, 79, 133, 149 Titan Corporation, 126, 127n7 Trafficking Victims Protection Act, 19 Triple Canopy, 119

Uganda, 12 Uniform Code of Military Justice (US), 3, 69n1 United Kingdom, 22–23, 143, 144 United Nations: cease-fire in Croatia, 22; and civil wars, 55; figures on private military companies, 7; and just war tradition, 50–51, 66; Office for Coordination of Humanitarian Affairs, 23; reliance on private military companies, 13, 66 United Nations Charter, 50–51, 66, 76, 76n3, 104, 104n1 United Nations Security Council, 23, 51, 66, 76, 94 United States: and command responsibility, 126–27; economic growth figures, 7; licensing of private military companies, 67, 69–70, 103; neutrality maintained by, 22; PMC employees as “kidnapees,” 129; PMC employees tried in military justice system, 16–17; reduction in military, 55; regulation of PMC employees, 69n1, 103; reliance on private military companies, 11–12, 13, 16–18, 56, 83, 131, 143, 144; and status of prisoners of war, 2 United States Central Command, 19 United States Congress, 17, 23–24, 69, 78 United States Labor Department, 25, 90, 123 United States Military Commission, 124 United States State Department, 18, 19, 23, 69, 131 Urban II (pope), 39 Vattel, Emer de, 45–46, 47, 108 vulnerable populations, 104, 107, 109, 131, 137, 147 Walsh, A. J., 118 Walzer, Michael: on citizens’ participation, 110; on combatants, 110–11, 114, 130; on command responsibility, 125; on doctrine of double effect, 114; domestic society as analogous to international system, 6–7, 49, 154; on just cause, 76; on Kosovo, 121n4; on noncombatants, 111, 114, 117; on premodern system, 142; on proportionality, 89; on protection of civilians, 112, 113; on state system compared to individuals, 49–50 war and warfare: alienation of war, 78, 79, 100; change in structure of armed conflict, 11;

Index civil wars, 1, 7, 14–15, 52, 55, 66, 67; definition of, 3; fluid nature of, 97; Grotius on, 46–47; and international law, 103–4, 107–8; lack of discernible vanguard or rear in, 8; and law of armed conflict, 51–52, 53; legal and moral norms governing, 13; moral reasoning about, 3, 4, 6, 13, 14, 24, 30, 80–81, 94, 105, 106, 138, 156, 159, 160, 162; private war, 34–35, 38, 41, 73; restrictions on, 48, 49, 50–51; terrorism distinguished from, 71; use of force as market commodity, 13, 25. See also just war tradition; privatized wars war crimes, 60, 75, 113, 124–25, 132, 138 Washbourne, Jake, 119 weak states: lack of bargaining power, 146; and outsourcing of war, 59, 61; and private military companies, 14, 20, 83, 157 Weber, Max, 42, 65 Weintraub, Jeff, 142, 149

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Westphalian state system: emergence of, 25, 31, 36, 42, 42n2; and just war tradition, 62, 162; and private force, 4; and states’ monopoly on political force, 20, 29, 32, 160. See also states and state system Wheeler, Nicholas J., 76n4 Williams, John, 49 Williams, Mark, 79 Wolfers, Arnold, 6–7 women: and noncombatant immunity, 40; in private sphere, 148 World War II, 52, 112 Xe, 16 Yamashita, Tomoyuki, 124–25 Yugoslavia (former), 21, 22, 23, 83, 133 Zimbabwe, 12 Zwingli, Ulrich, 74