Notes Private Security Contractors and New Wars risk, law and ethics Kateri Carmola Introduction Policy-makers

rs and scholars are trying to understand an industry that seems at once a return to familiar trends of the past (soldiers for hire), and a completely new series of international actor. Use of contractors is growing in three sectors: alongside military in places like Iraq and Afghanistan where parallel services are provided, in peripheral areas where military is not present, and in training missions that used to be conducted by the military. PMSCs challenge the essential longstanding idea of what constitutes a political state and how violence is named legitimate or not. Weber: The right to use physical force is ascribed to other institutions or individuals only to the extent that the state permits it. The state is considered the sole source of the right to use violence. Legally bounded sovereign states are being challenged by the rise of strong non-state actors: armed groups (rebels and guerilla movements, terrorist networks), MNCs, and NGOs Chapter 1: The Complex Identity of the PMSC Author: protean = a mix of organizational cultures that represent a new type of international actor and resists governance. Author: PMSCs sometimes operate as corporately organized proxy forces auxiliaries to the military; which may make them more dangerous than any single group of mercenaries. Why PMSCs are hard to define: o Hard to count so many companies and it is unclear what kinds of jobs they are doing and where they are doing it o Unclear who is in charge o Lack of an account what they are, how they came about, narrative of their role Mercenary: private actor wielding deadly force as a proxies for the governments and corporations o Criticisms: lack of discipline and lack of reliability Machiaveli: the need for a state to possess its own arms, that is, sovereign control over those who fight for it. o Mercenary and auxiliary arms are dangerous because, they have no love nor cause to keep them in the field other than a small stipend, which is not sufficient to make them want to die for you. o Auxiliary force: well-organized, well-coordinated, and highly skilled. Bear a stronger resemblance to PMSCs than mercenaries. Are the most dangerous type of force because of their organizational unity and skill.

Outsourcing military labor has the effect of diffusing responsibility, avoiding regulations, and hiding the adverse affects of policy, such as the healthcare costs associated with long-term commitments to domestic employees. Mandel defining PMSCs: o Agents: private, and provide forms of coercive security o Scope (jurisdiction): national? International? o Principals: government? Corporations? Organizations? Ad hoc groups? Agency theory: principal needs a task to be done but the agent has interests of its own, and they do not necessarily line up. o Task: armed security? Advice and training? Logistical support? (p. 25) o Purpose: maintaining status quo defensive? Overturning status quo offensive? PMSCs operate in three distinct organizational cultures: business, military, and humanitarian o Business: private security companies exists at the pleasure of their share holders o Military: culture rests on high regard for formalized ceremony, procedure, and hierarchy. We forget that the militarys central role is to die and kill others, we underestimate the power of these formalities, needed to legitimize and authorize killing done in the name of the state. o Humanitarian: NGOs hire global actors to perform tasks that the state is o longer will to provide often held up by bureaucratic rules or lack of political backing. PMSC is a new global actor: a profitable business working as a military force-multiplier with a mission construed in humanitarian terms this confusing concept has serious legal consequences. Chapter 2: The multi-faceted origins of the PMSC industry Author: Where PMSCs fame from o Market story (p. 44) Supply: excombatants from downsized militaries, regime change, failed states and slow mobilization Demand: increased instability civilians and businesses resort to private force o Political story Achieving laudable goals when politics gets in the way PMSCs as part of longstanding foreign policy goals Subverting the political process Author: there may be good reasons to intervene, on humanitarian grounds, in another country. But no intervention should be tied to any immediate financial gain; it should to be funded by companies who will profit from regime change nor promises of cheap resources. o The story of the rise of private authorities Private firms foster competition Decline of power of the state itself

o The advent of a certain new type of war, fought by a military undergoing changes in strategy and tactics change from Western way of war From decisive battles to low-level attacks/hit-and-run o Warfare is now non-trinitarian state, army, people Ideology could motivate combatants Emphasis on citizen-soldier as best form of combatant Faith in technological solutions Battlespace is no longer geographically confined o The rise of a new type of professional soldier Career trajectory for soldiers-scholars allows for legitimate transition to private sphere New wars do not lend themselves to the horrific demands of wars fought for asbstract ideals Casualty-aversion Chapter 3: Contracting and danger in the risk society Author: PMSCs provide security and analysis to businesses and NGOs do so as part of riskreduction strategy mandated by insurance coverage. Shift of liability to the individual rather than the organization or the state has resulted in an increased sense of insecurity and instability Culture of risk has influenced PMSCs: international insurance industry, risk society, risk aversion in the military Decentralization of what are traditionally state governmental functions, and the consequent shift toward a more regulatory role for the state, has resulted in the increasing prominence of private non-state actors addressing what used to be governmental responsibilities Insurance industry exists to provide security amidst future uncertainties Paradoxes of risk management: incomplete information, irrationality, moral hazard, attraction to risk, economy o Private risk-mitigation firms thus help businesses and other organizations to justify risks they would not otherwise have undertaken: they mitigate risks, but in doing so they expand the opportunity for risk-taking The contrast between the ways in which soldiers and contractors describe risk-taking behavior highlights the difference in risk cultures: momentary risk of contractor vs. community risk of the soldier Grid-group typology: p. 95-96: PMSCs serve the purpose of substituting for certain military deficiencies in risk-taking: they promote a risk posture that is radically at odds with that of the classic regular military, even as that same regular military is undergoing all sorts of transformations. The economy of risk transfer (the war and terrorism risk-insurance business) has created a fertile environment for the growth of the security industry.

Chapter 4: PMSCs and the clash of legal cultures Author: the protean nature of the PMSC is a result in a clash of legal cultures. PMSCs could be regulated using three cultures of law: military law, contract law, or International Humanitarian Law. The combo of all three has yet to create a distinct legal personality. Why is there no legal personality? o Legal structures in place are too new and untested o PMSCs have produced few actual problems needing regulation o Firms are trying to live out part of their purpose to operate outside the standard accountability and transparency structures Two-track system: center regular combatants under strict command and control, periphery irregular combatants held at arms length and less-strictly controlled (p. 122) There has yet to be a creation of law for PMSCs because of the unacknowledged problem of regulating irregulars in general, and the specific problems associated with combining the legal cultures of the military and contract law (p. 116) According to a strict definition of international law, contractors, even armed contractors are civilians. While they have the obligation to treat civilians well, they have no combatant rights if captured. As civilians, security contractors have no real standing under these rules and conventions. Purpose of military law: to maintain legitimacy and integrity, and to restrain those who have deadly force at their disposal Overall aim of human rights law freedom. Overall aim of military law control In practice, PMSCs are under the immediate application of public and private contract law. ***Even though contracts are made in a hyper-legal setting, legal remedies are rarely used; instead the relationship is merely broken off. Chapter 5: Frontier ethics with a cosmopolitan goal Author: PMSCs are inhabitants of an ethical frontier where actions are judged in an entirely different manner than either those of a military organization or civil society. The language of the contractor code of conduct embeds itself in a different set of practices than does the language of military or civil societys ethics. Walzer (p. 136): The state is the only reliable agent of public responsibility that we have. There isnt any agency other than the state in the contemporary world that can authorize and then control the use of force. States are shirking their international treaty obligations to respond to victims of genocide, and states are being morally two-faced as they hire militias to disarm other militias. A realistic justification of PMSCs simply accepts the full consequences of the political choices to fight wars in the way they are now being fought: with an over-stretched military; and in the midst of civil and infrastructure reconstruction goals that require businesses to operate their own security on the ground. Many slippery hands: agent trying to maximize profit and for minimum performance, or principals trying to shirk their own obligations and not pay.

Left/right hand problem: ability to engage some forces at certain times and then disassociate from them when necessary Frontiers: wild (adverse to traditional forms of discipline), barricaded (worlds apart and highly guarded), and bounded

Epilogue: problems and solutions If security is commodified, then all is lost. Protection against genocide cannot become something that only those with means can buy. Anyone operating in conjunction with a military operation, in and around a war zone or disaster zone, and carrying a weapon, should be part of the regular armed forces, and governed by formal military law. In a war zone, there is no real dividing line between offensive (traditional military) and defensive (role of security contractors). Why cant PMSCs be abolished? o We may not be able to pursue the foreign policies we want to if their true costs are revealed. o If we are only willing to send semi-combatants into war zones, or do drug-interdiction cheaply (with short-term contracts with minimal safeguards and benefits) then we are demonstrating our half-hearted commitment to the goals. Solutions o Mandatory national service? o Licensing regime for both firm and private security contractor Strict, regular licensing requirements, including education credits, exams, memberships to professional organizations, and other badges of a recognized profession.