Putting the Principle in PMSC Use

12/10/2012 07:29 pm ET | Updated Feb 09, 2013

One longstanding argument for the use of private military and security companies is that they can facilitate undertaking interventions for human rights purposes, both for humanitarian and peacekeeping objectives. The argument has long been made that the genocide in Rwanda could have been prevented, or at least greatly reduced in terms of the human toll, if the UN had contracted with the then still in operation South African firm Executive Outcomes (EO), which had previously amply demonstrated its abilities in defeating the murderous Revolutionary United Front rebels in Sierra Leone.

This is hardly a theoretical discussion. Aside from EO, PMSCs have already played significant roles in several previous interventions, including Pacific A&E and Medical Support Solutions in Sudan, Defence Systems Limited and DynCorp in East Timor.

There are arguments that can be made, both for and against the use of PMSC for such purposes and I've written on both. But, sadly, given that the likelihood of the holiday spirit of peace on Earth and goodwill to all is not something that even extends worldwide at the moment we should look more closely at the arguments for using them.

Fortunately, an article published about a year ago in the Journal of Applied Philosophy by Deane-Peter Baker and James Pattison offers some cogent arguments as to why they should be used. At the time the article "The Principled Case for Employing Private Military and Security Companies in Interventions for Human Rights Purposes" was published. Baker is on the faculty of the U.S. Naval Academy and Pattison taught in the Department of Politics at the University of Manchester.

Their article focused on two issues:

"First, does outsourcing humanitarian intervention to private military and security companies pose some fundamental, deeper problems in this context, such as an abdication of a state's duties? Second, on the other hand, is there a case for preferring these firms to other, state-based agents of humanitarian intervention? For instance, given a state's duties to their own military personnel, should the use of private military and security contractors be preferred to regular soldiers for humanitarian intervention?"

They noted that the arguments of those who object to PMSC use generally fall into four categories.

The article states:

"First, their use can undermine democratic control over the use of force since governments can employ PMSCs to circumvent many of the constitutional and parliamentary constraints on the decision to send troops into action. This is because it is much easier to use private force secretively, without public debate beforehand. Second, there is a loss of control over the behaviour of those in the field as lines of command and control become blurred by the introduction of PMSCs. Third, the lack of legal accountability of PMSCs can mean that private contractors can violate principles of jus in bello with impunity. Fourth, the use of PMSCs threatens to loosen the legal and political instruments that govern and regulate warfare. These instruments, such as the UN Charter, largely rely on the use of force by states and state-based institutions. The use of PMSCs, even for humanitarian intervention and peacekeeping, may make it more difficult to sustain effective legal and political instruments to govern warfare, over both states and PMSCs.

But, these are tactics, not structural, objections; meaning they depend on certain deficiencies in the current international remaining that way for the objections to remain valid. In turn that assumes that no political efforts to change the status quo can succeed. That seems rather unrealistic, to say the least. If there is any certainty in life it is that things change. We have already seen over the past decade, that, in response to problems with U.S. PMSC use in Afghanistan and Iraq, that numerous new military regulations and directives, as well as national laws, have been enacted to improve the situation. As the authors note:

"The four objections to the use of private force noted above are largely provisional in that they do not claim that there is anything fundamentally wrong with the use of private force, [my emphasis] including for intervention for human rights purposes. In theory at least, there could be put in place a robust system of international regulation that would remove these concerns. For instance, a much tighter system for the vetting of private contractors and the extension of international humanitarian law to PMSC personnel could reduce the likelihood of contractors violating jus in bello. An enforced system of national and international licensing of PMSCs could make it much harder for rogue firms to obtain contracts. And greater transparency and openness surrounding the bidding processes and contracts between states and PMSCs could lead to improvements in the democratic control over their use."

To those critics who argue against PMSC use because their motivation is profit, not humanitarian-driven, the authors respond:

"The problem with this line of reasoning is, first, that a tighter system of contracts and oversight mechanisms might be able to ensure that any PMSCs hired would have to possess a humanitarian intention, even if their underlying motives are profit-driven. To explain: a tighter system of, first, contracting could limit the roles in which PMSCs could be hired. They may be legally hired, for instance, in only humanitarian roles. They would not be given contracts where their role would not be humanitarian and may lack a humanitarian intention. To fill the humanitarian roles, PMSCs will need to possess a humanitarian intention (recall here that we define intention as a 'purpose or objective of action'). Of course, it may be that even when they are given a humanitarian contract, PMSCs will depart from the terms of the contract. However, a tighter system of, second, oversight could limit the extent to which PMSCs depart from the terms of the contract -- that is, lack a humanitarian intention. Compliance with the contract may be incentivised and departure from it penalised. A strong system of contracts and oversight mechanisms might then be able to ensure that PMSCs have humanitarian intentions, even if their underlying motives are still profit driven."

In response to the critics who argue that the building block of the contemporary international system is that nation-state and letting a non-state come to the rescue is an abdication of state responsibility the authors respond that "hiring someone to fulfil [sic] the duty to tackle human rights violations is not morally problematic, providing that the duty is properly discharged -- that intervention is undertaken and is as morally justifiable as it would have been with a regular force."

Baker and Pattison deconstruct other arguments against PMSC use but their conclusion should hearten PMSC advocates everywhere who wait by their chimneys awaiting a present from Santa:

"Our tentative conclusion, then, is there are no fundamental problems, specifically related to using PMSCs for intervention for human rights purposes. If there were put in place a strong system of regulation that alleviated many of the contingent concerns, although there may still be some deeper problems with PMSCs more generally, there would be little reason to oppose their use because of the fact that they are engaged in an intervention for human rights purposes in particular."