07/14/2010 07:29 am ET | Updated May 25, 2011

Who Are You Calling Objectionable?

Almost since the moment the first private security contractor (PSC) emerged , many commentators have been going to great efforts to try and stick them with the "M" word, i.e., mercenary. While there have been, and sometimes still are, connections and linkages between mercenaries and private security contractors, depending on how you define the term, the contemporary PSC is clearly not a mercenary.

PSCs themselves have long resented the term and, rightfully, regard its use as a way to smear them. Bear in mind that almost all people's thinking on mercenaries is influenced by old, and increasingly outdated, descriptions of mercenaries from the decolonization era after WWII , or mercenaries from the Middle Ages, or even worse, popular culture, where the bad guy nowadays always seems to be some thinly veiled 'corporate mercenary a la a Blackwater- like company.

All of this begs the question; were and are mercenaries a bad thing? A just published article in a British journal considers that very question and finds that under certain conditions, drawn from the Just War tradition, "there is nothing inherently objectionable about mercenarism." If fact, the article argues that there are times when hiring a mercenary is the moral thing to do. While there are lots of arguments to be made for hiring mercenaries one does not often see the moral card being played. Of course, given Great Britain's own tradition of the use of mercenaries (East India Company anyone?) it makes sense that this sort of argument would appear in a British journal.

Cécile Fabre, a political and moral philosopher at the University of Edinburgh, has an article in the British Journal of Political Science titled "In Defence of Mercenarism."

Note that Fabre does not say that all justifications for mercenarism are good. For example she does not agree with the justification from freedom of occupational choice, i.e., the state should not interfere with the private sector filling a need, which will doubtlessly not endear her to diehard free market advocates.

But she does support enabling "just defensive killings." In other words, the end justifies the means.

There are also some definitional caveats to her analysis. First, she restricts her argument to the use of private armies by states rather than multinational corporations, and as a means for the former to defend their interests abroad, rather than as a tool for domestic policies. That, for example, would have excluded the Sandline affair, when it hired by the nation of Papua New Guinea to resolve the conflict on the island of Bouganville back in 1997

Second, there is the important question of how do you define a mercenary. Fabre means "an individual who offers his military expertise to a belligerent against payment, outside the state's military recruitment and training procedures, either directly to a party in a conflict, or through an employment contract with a private military corporation. "

Third, in justifying the (limited) marketization of war, she believes that:

individual private soldiers, private military corporations and states sometimes have the moral right, in the threefold sense of a liberty, a claim or a power, to contract with one another for the purpose of waging a war. Rights, on my account, protect their holders' interests, so that for X to have a right to do ϕ means that X's interest in doing ϕ is important enough to be protected in certain ways. More specifically, to say that X is at liberty to do ϕ is to say that he is morally permitted to do φ. To say that he has a claim to do ϕ is to say that third parties are under some duty to him in respect of his doing φ. To say that he has the power to do ϕ is to say that, by doing φ, he changes his moral relationship to others by transferring to them some of his claims, liberties, powers and immunities, and/or acquiring new ones. Thus, I shall argue that private soldiers, PMCs and states sometimes are morally permitted to contract with one another for the purpose of fighting a war; that their liberty is sometimes protected by a claim against third parties that they not interfere with such contracts by, for example, making them illegal; and that it is sometimes protected by a power so to transact such that the new distribution of claims, privileges, liabilities and powers which the contract establishes is recognized by third parties as binding. For terminological convenience, and unless otherwise specified, when I say that they have the right to enter into a mercenary contract, I shall say that they have a liberty, a claim and a power to do so.

Finally, and probably disappointingly for PSC supporters she writes:

Nothing I say in this article is meant to support the use to which nations such as the United States put private soldiers and private military corporations (PMCs) in conflicts such as the Iraq War. Nor is my argument for mercenarism in any way meant to support the well-documented exactions that have been perpetrated by private soldiers in various conflicts. To put it emphatically, my claim is that, under strict conditions (which current practices do not meet), the marketization of war is not morally wrong. Those conditions, in a nutshell, are drawn from the Just War tradition. I shall assume that a war is just if it is fought for a just cause by a belligerent which ensures, as far as possible, that the harms done by the war do not exceed the good it brings about. In addition, individual soldiers who fight in the war must also respect the principles of proportionality, necessity and non-combatant immunity when deciding when and how to mount their attacks, as well as whom to target. If, and only if, those conditions are met, there is no reason to reject marketized soldiering as morally unjustifiable.

That is a lot of ifs to meet, and given everything we have learned about Iraq since the U.S. invasion of 2003 it is unlikely that anyone short of a circus contortionist can use her argument to justify the use of PSCs in other wars such as Afghanistan and other conflicts.

In fact, she recognizes the perils of this line of thinking when she writes later on:

In the meantime, it is worth emphasizing what this article is not claiming - that one can choose to make a living however one wishes. An argument for unbridled freedom of occupational choice would lead to the absurd conclusion that Luca Brazzi, Don Corleone's top henchman, has the moral right to offer his killing services to the latter against shopkeepers who refuse to pay protection money, or that the Mafia has the right to procure killing services for corrupt politicians who wish to eliminate their political opponents. That conclusion would be absurd simply because, in those two examples, the acts of killing are straightforwardly impermissible.

That said her arguments merit consideration. First, though, is her analysis of why mercenarism is not justified.

An individual, or a group, enjoys the contractual freedom to earn a living if they are able to exchange services, money or both with some other party with a view to benefiting financially from the transaction. This supposes, at the very least, that there should be no legal ban on the provision of those specific services or financial resources. Compare now the following scenarios:

(a) Blue decides to enlist into the standing professional army of his home state. He knows that he might be deployed anywhere in the world as thought fit by his superiors, and that he will kill some other human being(s).

(b) White finds a job with a PMC that has successfully won a number of government contracts. He knows that he might be deployed anywhere in the world as thought fit by his employers, and that he will kill some other human being(s).

(c) Red sets up a business as a freelance mercenary. He hires himself out to different kinds of belligerents for different tasks, from participating in active combat to training professional soldiers for specialized roles on the front line. Unlike White, he has considerable control over where he is deployed and for what purposes.

In all three cases, the soldier knows that he will either kill or be complicitous in acts of killing, and will be paid for doing precisely that. The only difference between Blue, on the one hand, and White and Red, on the other hand, is that Blue is formally part of the state's apparatus, whereas the latter two are not. At first glance, that difference seems irrelevant. For if one believes that freedom of occupational choice is important - a point which I take as fixed - and if one believes that it is (sometimes) permissible to exercise it by killing others, then it is hard to see why one is morally permitted to exercise it in the formal service of a state, but neither as an employee of a private corporation nor as a freelance soldier. By the same token, if Blue's interest in joining the army is important enough to be protected by a claim, then the same applies to White's and Red's interests.7 Similar considerations apply to private military corporations. A PMC, as we saw, acts as an intermediary between belligerents on the one hand, and individuals willing to offer their lethal services on the other. It advertises for openings, recruits employees, trains them, offers them logistical support, oversees their career, monitors their performance, etc. These tasks are carried out by lawyers, human resources personnel, advertising personnel, administrative assistants and accountants, in just the same way as the tasks that enable individuals to join, and effectively perform in, a regular army are carried out by lawyers, human resources personnel, etc. At the bar of freedom of occupational choice, then, if someone's interest in earning a living by, for example, working as a recruiter for the army ought to be protected by a claim and a liberty, then so should her interest in working as a human resources adviser for a PMC. And so on.

As should be clear, however, a state, qua state, is not properly to be regarded as engaging in activities that would enable it to make a living. Consequently, the foregoing argument cannot support the conferral on states of a right to enter a mercenary contract, from which it follows that freedom of occupational choice cannot, on its own, support mercenary contracts. For on the account of rights which I espouse, X has a right in respect of an interest of his if that interest warrants protection. In so far as freedom of occupational choice is not an interest of a state, a state cannot have a right - and therefore cannot have a power - to enter into a mercenary contract at the bar of that particular value. Thus, freedom of occupational choice, may well support mercenaries' and PMCs' liberty and claim to do so; but in so far as it cannot support states' similar power, it cannot support mercenaries' and PMCs' power to enter into a contract with the state. Indeed, it is a necessary condition, for A to have the power to make a transaction with B, that B also has that power - and vice versa. Suppose that A and B agree that A will sell B his car for £5,000. Assume that A's interest in being able to divest himself of his property is important enough to confer on him a power to change his, and others' relationship to it, by selling it. However, A cannot have the power to transfer his car to B in exchange for B's £5,000 if B does not herself have the power to transfer £5,000 to A in exchange for his car. Accordingly, any argument to the effect that the transaction ought to be regarded as valid must show that both A and B have the power to enter into that kind of contract - and, by implication, that some interest of both A and B is important enough to be protected by the relevant power.8 As we have just seen, freedom of occupational choice is not an interest of states. In order, then, to defend the view that mercenary contracts as between a state and mercenaries (or PMCs) are legitimate, we shall have to identify some interest(s) of states that can be protected by the relevant powers.

If just earning a living is not a sufficiently good reason then what is? Fabre writes:

The foregoing considerations should not be taken to imply that freedom of occupational choice has no role to play in justifying states' right to enter mercenary contracts. Indeed, it might well be in the interest of a state - call it S1 - that individuals' freedom of occupational choice, which they exercise by hiring themselves out as mercenaries or by working in a PMC, be respected. In such a case, though, the interest which justifies S1's right is, ultimately, that which is fulfilled by respecting individuals' freedom of occupational choice. To illustrate: suppose that White's employer wins a government bid to send a number of (private) soldiers to help fight a justified humanitarian war against a genocidal tyrant. White, in that war, might be assigned to combat duties; or he might be assigned to a security detail for the protection of some high-ranking official, with licence to kill if necessary. Or suppose his employer wins a bid to help a foreign government fight a war of national self-defence against an unjust act of aggression. In all those cases, White kills in defence of others: in defence of those whose lives are threatened by their own genocidal government; in defence of the high-ranking official; and in defence of the national interest of the state whose government hired his company.

Now, I take it for granted that one is permitted, and has a claim, at least prima facie, to exercise one's freedom of occupational choice by offering goods and services (against pay) in justified defence of other people's lives, and of other states' economic or national interests. Thus, a group of food producers surely can sell food to whatever organization will then distribute it to the starving. A doctor surely can offer his medical services, against pay, and via the state and/or medical insurance companies, to those who need them as a matter of life and death. Likewise, an aspiring diplomat surely can offer his services, again against payment, in the service of his country's defence of its national interests, particularly in times of war. An information technician surely can offer her services to a company that is particularly vulnerable to hackers. And so on. If that is correct, as it surely is, then White too can become a private soldier in defence of third parties' fundamental interests.

To be sure, unlike White, those agents contribute to saving the lives or protecting the interests of others without thereby contributing to killing someone else. It is hard to see, however, why that should make a difference to the issue at hand. Take the case of weapons manufacturers, who sell guns to those who need them so as to defend their life or protect the national interest. If they can do so even though the assistance that they provide involves a contribution to an act of killing, then private soldiers and PMCs can (respectively) offer and procure killing services.9

I have argued that individuals can hire themselves out for killing services, as well as procure such services, in so far as, by doing so, they provide some other party with the resources it needs to rightfully defend itself against an unjust threat. The latter point - pertaining to just defensive killings - also provides a justification for conferring on states the right to hire mercenaries. Consider: states need armies and weapons, not only for the purpose of collective self-defence (to point out the obvious), but also for the purpose of defending distant strangers (when called upon to wage a war of intervention), as well as for the purpose of enforcing universally valid norms (when called upon to take part in multilateral peace-keeping forces.) Put bluntly, states need the wherewithal to have acts of killing carried out in their name and with their authorization, in self-defence as well as in defence of others. Now, if a state is at liberty to buy guns from private manufacturers for the aforementioned purposes - as it surely is - then it is also at liberty to buy soldiering services from those willing to provide them. Moreover, if a state has a right to pay for a standing army - as it surely does - then it also has a right to pay for a private army. Finally, recall my earlier point, to the effect that an individual's interest in working as a private soldier ought to be protected by rights that neither PMCs nor states be themselves interfered with when hiring him, and that third parties recognize his employment contract with them as legally binding. Likewise, states' interest in hiring a private army ought to be protected by similar rights as pertain to private soldiers and PMCs.

In sum, whereas the argument for freedom of occupational choice failed to provide a justification for states' power to enter into mercenary contracts (and thereby for mercenaries' and PMCs' similar power), the argument from just defensive killings can do so.

Some of the problems I have with this analysis that it gives states far too much the benefit of a doubt. It may well be, as international relations specialists argue, that the state is the irreducible unit of sovereignty in international politics. But that is far from agreeing that everything a states does is done out of pure motives. A state can label something a just cause but that hardly makes it so. If all anyone has to do to justify being a mercenary is to say they have the state seal of approval one is simultaneous widening and diluting the definition of mercenary to the point of absurdity.

One very interesting part of Fabre's argument has to do with command responsibility, also known as the "Yamashita standard" that is based upon the precedent set by the United States Supreme Court in the case of Japanese General Tomoyuki Yamashita. He was prosecuted in 1945, in a still controversial trial, for atrocities committed by troops under his command in the Philippines. Yamashita was charged with "unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes" even though he was not there in country when the crimes were occurring. Fabre writes:

So far, I have focused on individual mercenaries. Yet, the status of PMCs themselves is also at issue. If their employees are liable to being killed, are their executives similarly liable, and are their company headquarters legitimate targets for destructive bombings? If their mercenary employees are liable to being punished, are their executives similarly liable? It seems that they are. If, in times of war, the military staff of a belligerent are liable to being either killed or punished for war crimes, so should PMCs' executives - which is to say that they ought not to be granted the protection standardly afforded to civilians.

Admittedly, there is a difference between the two kinds of institution: PMC executives do not (let us assume) take the decision to go to war in the first instance; nor, once the war has started, do they make the strategic and tactical decisions that will result in enemy deaths. Yet, the fact that they, unlike high-ranking officers, do not make those decisions is irrelevant to their liability to being killed or put on trial for participating in an unjust war. For consider the case of weapons factories. As a number of Just War theorists have argued, targeting those installations and the civilians who work in them is permissible, precisely in so far as they provide direct military support to combatants, even though they might be located far away from the lines, and even though their contribution to the war effort is that of accomplices, rather than principals, in the war. But if providing support such as weapons can turn manufacturers into legitimate targets and make them liable to being tried for war crimes, then, by the same token, providing support in the form not merely of equipment but also of combatants themselves can turn PMC executives into legitimate targets and possible defendants in war crime trials.

Much more needs to be said on that issue. Treated in full, it would require an account of corporate responsibility for acts committed by individual employees, as well as an account of senior officers' liability for the acts committed by rank-and-file soldiers. My point, however, is that if one endorses the deliberate targeting of the enemy's military headquarters (both the building and those who work in it), then one is committed to the view that the deliberate targeting of the headquarters of PMCs who supply the enemy with crucial military support is also permissible. Likewise, if one takes the view that superior officers can and ought to be held legally liable for the acts committed by their subordinates, one must accept that PMC executives can and ought to be held legally liable for the acts committed by their employees.

One wonders if Eric Prince, founder of Blackwater, ever thought about this.