Abstract
This article contemplates the pros and cons of privatizing humanitarian intervention to prevent genocide through the employment of mercenaries, or Private Military Companies (PMC). After exploring the historical and cultural background of PMCs, the authors then examine how current laws and international norms carve out exceptions for the legitimate use of PMCs. Finally, the article surveys some of the central practical concerns involved in PMC use, including accountability, command and control, and tactical feasibility.
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Notes
- 1.
Declaring Genocide in Darfur, Sudan , H.R. Con. Res. 467 (rfs), 108th Cong., 2nd sess. (June 24, 2004).
- 2.
Lydia Polgreen, “Scorched-Earth Strategy Returns to Darfur ,” The New York Times , March 2, 2008.
- 3.
The inability of peacekeeping forces to stop atrocities in Darfur is highlighted in Gérard Prunier, Chapter 3, Section 3.2 (above).
- 4.
See Arthur Asiimwe, “Rwanda census puts genocide death toll at 937,000,” Reuters, April 4, 2004, which also cites the lower figure of 800,000 given by the International Criminal Tribunal for Rwanda .
- 5.
John F. Harris, “Bill Clinton Takes Spot On Global Stage,” The Washington Post, June 1, 2005.
- 6.
Scott Helman, “His big regret: not acting in Rwanda ,” The Boston Globe, December 11, 2007.
- 7.
Some authors have eschewed use of the term “mercenary” when discussing PMCs , as the former tends to elicit visceral condemnation, clouding legitimate debate. Given that our paper seeks to help overcome this knee-jerk reaction, we do not see the point in employing solely euphemistic labels that obscure the basic question – the legitimacy of private, non-state force. See, for example, Katherine Fallah, “Corporate actors: the legal status of mercenaries in armed conflict ,” in International Review of the Red Cross, No. 863 (2006): 602: “the ‘mercenary’ label is frequently ‘applied to express the speaker’s disapproval, rather than to describe an individual satisfying the specific criteria under international law ’ taking on a political rather than legal meaning. In order to defuse the loaded uses of these terms, I shall instead use the expression ‘corporate actor’…”
- 8.
Sir Brian Urquhart , “Dogs of War,” interviewed by Tony Jones, Lateline, Australian Broadcasting Corporation, May 18, 2000, transcript at http://www.abc.net.au/lateline/archives/s128621.htm (Accessed June 11, 2009).
- 9.
See, for example, the discussion in the UN regarding using a PMC in Goma, Zaire, as recounted by Bruce D. Jones, Peacemaking in Rwanda : the Dynamics of Failure (Boulder, CO: Lynne Rienner Publishers, 2001), 142.
- 10.
Mike Hoare was the most famous of the Congo mercenaries raising the 5th Commando for secessionist Moishe Tshombe. An ex-British soldier, he has been convicted of hijacking a plane to escape from an aborted coup attempt in the Seychelles in 1981. His account of his mercenary service can be found in: Mike Hoare, Congo Mercenary (London: Robert Hale Ltd, 1991). Robert Denard began his mercenary career in the Congo as well. From Denard’s obituary, in the Economist : “In the breakaway Katanga Province in the 1960s Bob Denard propped up Moishe Tshombe, and Belgian mining interests in Congo, against a United Nations force. He tried to launch coups in Yemen and Benin and fought for secession in Biafra. His men – usually only a few dozen of them – were generally French, Belgian or South African, well equipped with guns and armoured jeeps, whipping the untrained blacks into shape. Denard himself seemed less racist than his troops , and in the Comoros, having converted to Islam , he wore the robes and cap of a native as he limped to Friday prayers. But he laughed at the thought of democracy in Africa .” Obituary of Bob Denard,” The Economist, October 18, 2007.
- 11.
Sarah V. Percy , “Mercenaries: Strong Norm, Weak Law,” International Organization No. 61 (Spring 2007), 367.
- 12.
David Shearer, Adelphi Paper 316: Private Armies and Military Intervention (London: Oxford University Press, 1998), 76: “The moral debate over private military force has centred largely on the moral issues attached to the ‘mercenary’ label.”
- 13.
The official title is in fact, “UN Special Rapporteur on the question of the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination .”
- 14.
United Nations General Assembly , 49th Session, UN Doc. A/49/362 (1993).
- 15.
Wilfred Burchett and Derek Roebuck, The Whores of War: Mercenaries Today (Middlesex, UK: Penguin, 1977).
- 16.
Guy Arnold, Mercenaries: The Scourge of the Third World (London: MacMillan Press, 1999).
- 17.
Shearer, Adelphi Paper, 1998, 11.
- 18.
McGill University Faculty of Law, Quid Novi, October 30, 2008.
- 19.
Secretary-General Kofi Annan , “SECRETARY-GENERAL: First of all, I don’t know how one makes a distinction between respectable mercenaries and non-respectable mercenaries,”transcript of Press Conference by at UN Headquarters, SG/SM/6255,June 12, 1997, http://www.un.org/news/Press/docs/1997/19970612.sgsm6255.html (Accessed June 11, 2009).
- 20.
Niccolo Machiavelli , The Prince , trans. George Bull (London: Penguin Classic, 1961), 77–78.
- 21.
Janice E. Thomson , Mercenaries, Pirates and Sovereigns: State-Building and Extraterritorial Violence in Early Modern Europe (Ewing: Princeton University Press, 1994), 27–28.
- 22.
Sarah Percy , “Morality and Regulation,” in From Mercenaries to Market: The Rise and Regulation of Private Military Companies, eds. Simon Chesterman & Chia Lehnardt, (New York : Oxford University Publishers, 2007), 11–28.
- 23.
Thomson , Mercenaries, 1994, 3.
- 24.
Ibid.
- 25.
Juan Carlos Zarate , “The Emergence of a New Dog of War: Private International Security Companies, International Law, and the New World Disorder,” in Stanford Journal of International Law 34.75 (1998), 81.
- 26.
Thomson , Mercenaries, 1994, 89–90.
- 27.
Although Cyrus perished in 399 B.C. before seizing the throne from his brother, the story of the Ten Thousand was recorded by Xenophon in Anabasis and curiously inspired the 1979 film The Warriors, where the journey of the Ten Thousand was re-imagined with youth gangs in 1970s New York . The main gang leader, who falls to his death setting “the Warriors” on their journey home, was named Cyrus.
- 28.
Thomson , Mercenaries, 1994, 89.
- 29.
Historian David Potter vividly describes British efforts to contract German troops when Henry VIII declared war on France in 1543 in: Potter, David “The International Mercenary Market in the Sixteenth Century: Anglo-French Competition in Germany , 1543-50,” in The English Historical Review 111.440 (1996), 111.
- 30.
Thomson , Mercenaries, 1994, 89.
- 31.
For example, Alastair Leithead, “Tough task ahead for Nato troops ,” BBC News Online, July 31, 2006, http://news.bbc.co.uk/2/hi/south_asia/5232766.stm (Accessed June 11, 2009).
- 32.
For a fascinating account of Swiss mercenaries in the European middle ages see, Anthony Mockler, The Mercenaries (New York : The Macmillan Company, 1969), 74–104 and John McCormack, One Million Mercenaries: Swiss Soldiers in the Armies of the World (London: Leo Cooper, 1993).
- 33.
Thomson , Mercenaries, 1994, 94.
- 34.
Ibid., 30–31.
- 35.
There are many accounts of the motivations and actions of volunteers fighting in the Spanish Civil War . For a detailed ideological account, see George Orwell, Homage to Catalonia (New York : Harcourt Brace, 1952).
- 36.
Zarate , “The Emergence of a New Dog of War,” 1998, 86.
- 37.
United Nations Security Council , Res. 161, UN Doc. S/4741, February 21, 1961.
- 38.
United Nations Security Council , Res. 169, UN Doc. S/5002, November 24, 1961.
- 39.
Gerry S. Thomas, Mercenary Troops in Modern Africa (Boulder, Colorado: Westview Press, 1986), 6–7.
- 40.
Percy , “Mercenaries,” 2007, 14. Percy makes the distinction between combat PMCs such as Executive Outcomes and Sandline, and non-combat PMCs that engage support or training but avoid combat roles.
- 41.
Zarate , “The Emergence of a New Dog of War,” 1998, 76.
- 42.
Ibid., 91. In this respect, the post-Cold War era was as conducive to the rise of PMCs as the post-Peloponnesian War environment that allowed Greek veteran Xenophon and his Ten Thousand to march with a Persian pretender to the throne.
- 43.
For example, Executive Outcomes had a policy of only taking contracts from national governments.
- 44.
Peter. W. Singer, “Peacekeepers Inc.” in Policy Review, No. 119 (June/July 2003),
http://www.hoover.org/publications/policy%20review/3448831.html (Accessed June 15, 2009).
- 45.
Percy , “Mercenaries,” 2007.
- 46.
Ibid., 14.
- 47.
Zarate , “The Emergence of a New Dog of War,” 1998, 86. Britain hired 16,500 Germans, Italians, and Swiss mercenaries to fight in the Crimean War , although they were never deployed.
- 48.
Percy , “Mercenaries,” 2007, 17–18.
- 49.
Ibid, 18.
- 50.
Ibid.
- 51.
United Kingdom , Foreign and Commonwealth Office (UK), “Private Military Companies: Options for Regulation,” (February 12, 2002), http://www.fco.gov.uk/Files/kfile/mercenaries,0.pdf (Accessed June 11, 2009).
- 52.
Enrique Bernales Ballesteros , “Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination ,” UN Doc. A/58/115 (July 2, 2003).
- 53.
Geoffrey Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflict, (London: Weidenfeld and Nicolson, 1980), 328.
- 54.
Thelma Guttierez and Wayne Drash, “‘Green-card Marine’ prepares for third deployment ,” CNN, March 20, 2008, http://www.cnn.com/2008/US/03/19/greencard.marine/index.html (June 11, 2009).
- 55.
Matthew Tostevin, “Focus – Could dogs of war become doves of peace ?” Reuters, May 28, 2002.
- 56.
David Kovacs, “A Cautionary Tale,” in Transactions of the American Philological Association, 123 (1993), 405.
- 57.
Benjamin Perrin, “Promoting Compliance of Private Security and Military Companies with International Humanitarian Law,” in International Review of the Red Cross, No. 863 (2006), 628.
- 58.
Peter W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry, (Ithaca: Cornell University Press, 2003), 44.
- 59.
See, for example, Perrin, “Promoting Compliance,” 2006, 628; Deborah Avant, The Market for Force: The Consequences of Privatizing Security (New York : Cambridge University Press, 2005), 226; Percy , “Morality and Regulation,” 2007.
- 60.
Singer, Corporate Warriors, 2003, 9.
- 61.
For an up-to-date list of signatories: http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=530&ps=P (Accessed June 11, 2009).
- 62.
Shearer, Adelphi Paper, 1998, 19.
- 63.
United Nations ESCOR, 53rd Sess., UN Doc. E/CN.4/1997/24, February 20, 1997.
- 64.
Antonio Cassese , “Mercenaries: Lawful Combatants or War Criminals,” in Zeitschrift fur auslandisches offentliches Recht und Volkerrecht 40, (1980): 1-30.
- 65.
Max Weber , “Politics as a Vocation,” in From Max Weber: Essays in Sociology, eds. H.H. Gerth and C. Wright Mills (New York : Oxford University Press, 1946), 77–128.
- 66.
Michael Walzer, “Mercenary Impulse: Is there an ethics that justifies Blackwater ?” The New Republic, March 12, 2008.
- 67.
We refer here to the classic analogy typically taught in International Relations 101 classes in universities everywhere, where the world is viewed as a giant pool table upon which lie states – the billiard balls – knocking each other about.
- 68.
Gareth Evans , “Crimes against humanity: overcoming indifference,” in Journal of Genocide Research 8, No. 3 (September 2006): 335.
- 69.
International Commission on I ntervention and State Sovereignty (ICISS), The Responsibility to Protect . Report of the International Commission on Intervention and State Sovereignty. (Ottawa: International Development Research Centre, 2001), 13.
- 70.
An analysis of the “responsibility to protect” concept and of the respective roles of individual states and international community is provided in Francis M. Deng, Chapter 4, Section 4.1 (above).
- 71.
Judith Miller, “The World: Checkered Flags; Sovereignty Isn’t So Sacred Anymore,” The New York Times , April 18, 1999.
- 72.
Parameters for military intervention in keeping with the “responsibility to protect” requirements are outlined in Wiebe Arts, Chapter 8, Section 8.2 (above).
- 73.
Frédéric Mégret, “Responsibility to Protect (Others) v. the Power of Protecting Oneself: Beyond the ‘Salvation’ Paradigm.” (unpublished paper).
- 74.
The jus cogens nature of the prohibition of genocide is examined in Wenqi Zhu and Binxin Zhang, Chapter 12, Section 12.2.2 (above).
- 75.
ICISS. The Responsibility to Protect . 2001, 53.
- 76.
Of course, this preambular statement is ambiguous as to whether it legalizes resistance per se, but as Frédéric Mégret observes in a chapter in this volume, there are multiple references to the right to resistance in international law . See Mégret, Chapter 13.
- 77.
The argument that international law should legitimize victims ’ resistance to genocide is put forward in Frédéric Mégret, Chapter 13, Section 13.6 (above).
- 78.
Avant, The Market for Force, 2005, 261.
- 79.
Singer, Corporate Warriors, 2003, 171. Avant, The Market for Force, 2005, 264: “The market for force has undermined states’ collective ability to monopolize violence in the international system… Rather than arguing about its overall costs or benefits, both policy makers and their constituents would be well served by thinking about the trade-offs involved in the different strategies for participating in and managing this market.”
- 80.
Singer, Corporate Warriors, 9; Avant, The Market for Force, 2005, 7; Willis Witter, “Private firms eye Darfur ,” The Washington Times , October 2, 2006.
- 81.
Singer, Corporate Warriors, 2003, 233.
- 82.
Doug Brooks, Creating the Renaissance Peace: The Utilization of Private Companies for Peacekeeping and Peace Enforcement Activities in Africa (Pretoria, SA: Africa Institute of South Africa , 2000), 2.
- 83.
Frederick Chiluba, “Call for Support for Lusaka Agreement, Speedy Establishment of UN Peacekeeping Mission,” quoted in an e-mail distributed by the African Policy Information Center (APIC), January 26, 2000 cited in Brooks, Creating the Renaissance Peace, 2000, 3.
- 84.
Scott Fitzsimmons, “Dogs of Peace: A Potential Role for Private Military Companies in Peace Implementation,” in Journal of Military and Strategic Studies 8, No. 1 (Fall 2005): 1–27.
- 85.
Ibid., 4–5.
- 86.
Shearer, Adelphi Paper, 1998, 49–51.
- 87.
Singer, Corporate Warriors, 2003, 171.
- 88.
See, for example, Willis Witter, “Private firms eye Darfur ,” The Washington Times , October 2, 2006.
- 89.
See, for example: David J. Bercuson, Significant Incident: Canada’s Army, the Airborne, and the Murder in Somalia (Toronto: McClelland and Stewart, 1996).
- 90.
Doug Brooks, “Messiahs or Mercenaries? The Future of International Private Military Services,” in International Peacekeeping 7, No. 4 (2000): 129.
- 91.
Avant, The Market for Force, 2005, 91.
- 92.
Stewart Payne, “Teenagers ‘used for sex by UN in Bosnia ’,” The Daily Telegraph, April 25, 2004.
- 93.
David Johnston and John M. Broder, “F.B.I. Says Guards Killed 14 Iraqis Without Cause,” The New York Times , November 14, 2007.
- 94.
International Committee of the Red Cross (ICRC ), “The ICRC to expand contacts with private military and security companies,” April 8, 2004, http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList571/21414DE8FCAF2645C1256EE50038A631 (Accessed June 15, 2009).
- 95.
Ibid.
- 96.
Peter W. Singer, “War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law,” in Columbia Journal of Transnational Law 12 (2004), 524.
- 97.
Avant, The Market for Force, 2005, 226.
- 98.
U.S. Congress . House. 2007. MEJA Expansion and Enforcement Act 2007, HR 2740,110th Congress, 2007.
- 99.
United Kingdom, Foreign and Commonwealth Office, Private Military Companies, 2002.
- 100.
ICRC . The ICRC has also recently devoted an entire issue of the International Review of the Red Cross to legal accountability for PMCs . Available at: http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/section_review_2006_863?OpenDocument
- 101.
Singer, “War, Profits, and the Vacuum of Law,” 2004, 545.
- 102.
Benjamin Perrin, “Promoting compliance of private security and military companies with international humanitarian law ,” in International Review of the Red Cross, No. 863 (2006), 634.
- 103.
Ibid., 625.
- 104.
See, for example, Toni Pfanner, “Interview with Andrew Bearpark,” in International Review of the Red Cross, No. 863 (2006), 449, in which the Head of the British Association of Private Security Companies describes how they are “keen on regulation.” See also Singer, “War, Profits, and the Vacuum of Law,” 2004, 545.
- 105.
Tim Spicer, An Unorthodox Soldier: Peace and War and the Sandline Affair (Edinburgh: Mainstream Publishing, 1999), 25–6, quoted in Andrew Clapham, “Human rights obligations of non-state actors in conflict situations,” International Review of the Red Cross, No. 863, (2006), 517.
- 106.
Perrin, “Promoting compliance,” 2006, 627.
- 107.
Willis Witter, “Private firms eye Darfur ,” The Washington Times , October 2, 2006.
- 108.
This, we hasten to add, should also dispose of the more sensationalist arguments offered against mercenaries , such as the fact that they might be paid more by a rival faction and abruptly switch sides. See for example the worry of Behrooz Sadry, deputy head of the UN mission in Sierra Leone : “Then there is the question of loyalty . Suppose a faction can pay more than the U.N?” in Matthew Tostevin, “Focus-Could dogs of war become doves of peace ?,” Reuters, May 28, 2002.
- 109.
Yehuda Bauer, “Genocide in History: The Onward Progress of Civilisation?” (Speech given during a panel discussion at the Global Conference on the Prevention of Genocide, McGill University , Montreal, Canada, October 11–13, 2007).
- 110.
The difficulties of past peacekeeping missions especially in relation to the establishment of coordination between different national contingents and the lack of resources are examined in Wiebe Arts, Chapter 8, Section 8.1 (above).
- 111.
Shearer, Adelphi Paper, 1998, 49.
- 112.
Ibid., 49–51.
- 113.
Percy , “Morality and Regulation,” 2007, 17.
- 114.
Jeremy Harding, “The Mercenary Business: Executive Outcomes ,” in Review of African Political Economy, 24, No. 71 (1997), 93.
- 115.
Percy , “Morality and Regulation,” 2007, 17.
- 116.
Singer, Corporate Warriors, 2003, 228.
- 117.
Jones, Peacemaking in Rwanda , 2001, 142. [emphasis added]
- 118.
Ibid., 140.
- 119.
Singer, Corporate Warriors, 2003, 255.
- 120.
- 121.
Peter W. Singer, “Humanitarian principles, private military agents: some implications of the privatized military industry for the humanitarian community,” in Resetting the Rules of Engagement : Trends and Issues in Military-Humanitarian Relations, eds. Victoria Wheeler and Adele Harmer, Humanitarian Policy Group Report 21 (London: Overseas Development Institute, 2006), 5.
- 122.
Avant, The Market for Force, 2005, 206.
- 123.
Singer, “War, Profits, and the Vacuum of Law,” 2004, 5.
- 124.
Avant, The Market for Force, 2005, 25.
- 125.
Singer, Corporate Warriors, 2003, 119.
- 126.
Andrew Sniderman, “ ‘If lives matter, then you use the private industry:’ Blackwater USA and the Genocide Intervention Fund ,” November 12, 2005, unpublished paper.
- 127.
Jason Zengerle, “Student Aid: Raising Money to Save Darfur ,” The New Republic, March 20, 2006.
- 128.
Ibid.
- 129.
Doug Brooks, “Write a Cheque, End a War,” Conflict Trends, No. 6 (July 2000).
- 130.
ArmourGroup International. “ArmorGroup International plc Leads evacuation of US missionaries and nurses from Kenya ,” ArmourGroup International, 28 January 2008. http://www.armorgroup.com/files/news/19880/Kenya_rescue.doc (Accessed June 12, 2009).
- 131.
Matthew Davies and Janet Kawamoto, “Kenya missionaries return to work despite continuing unrest,” Episcopal Life Online, January 30, 2008, http://www.episcopal-life.org/79901_94360_ENG_HTM.htm (Accessed June 12, 2009).
- 132.
See Singer, “Peacekeepers Inc.,” 2003. Also, Eric Pape and Michael Meyer, “Dogs of Peace,” Newsweek International Edition, August 25, 2003.
- 133.
Shearer, Adelphi Paper, 1998, 13.
- 134.
Of course, Avant’s theory is a bit more complex, in that applications of functional control can have ramifications on the political and social dimensions, and vice versa – i.e. applications of military force can also in some respects be considered political or social.
- 135.
Salih Mahmoud Osman , remarks made at the International Young Leaders Forum, Global Conference on the Prevention of Genocide, McGill University , Montreal, Canada, October 11–13, 2007. ArmourGroup International. “ArmorGroup International plc Leads evacuation of US missionaries and nurses from Kenya ,” ArmourGroup International, 28 January 2008. http://www.armorgroup.com/files/news/19880/Kenya_rescue.doc (Accessed June 12, 2009).
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Kotarski, K., Walker, S. (2011). Privatizing Humanitarian Intervention? Mercenaries, PMCs and the Business of Peace. In: Provost, R., Akhavan, P. (eds) Confronting Genocide. Ius Gentium: Comparative Perspectives on Law and Justice, vol 7. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9840-5_14
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