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VOLUME 49, NUMBER 1, WINTER 2008

Mercenarism 2.0? The Rise of the Modern PrivateSecurity Industry and Its Implications for

International Humanitarian Law Enforcement

E. L. Gaston*

In response to reports of frequent criminal misconduct, aggressive behavior, and human rights abusescommitted with impunity by private contractors in Iraq and Afghanistan, some have argued that privatemilitary and security companies (PMSCs) are no more than modern mercenaries, and that they shouldtherefore be banned under the standing international prohibition on mercenarism. However, the existinginstruments prohibiting mercenarism would be difficult to apply to most PMSCs, making it easy for statesthat want to continue to use these companies to evade such a ban. In contrast, given market forces pushingPMSCs to be more compliant and emerging state practices that favor regulation, coordinated internationalregulation of PMSCs might feasibly be enforced. This article proposes that many of the issues with privatemilitary and security companies could be addressed by creating an international humanitarian law(IHL) principle that recognizes state use of PMSCs as a means of warfare. The availability of ad-vanced, independent security and military capabilities-for-hire enables states or nonstate actors to getaround political or resource constraints that otherwise might limit the use of force, and may undermineIHL enforcement. These threats might be addressed if IHL established a stronger state responsibility linkbetween states and the PMSCs they hire. International humanitarian law should provide that states whooutsource government security or military functions in support of any combat or humanitarian operationsthat would otherwise trigger IHL must establish internal oversight, accountability, and liability mecha-nisms to ensure that these actors comply with international and domestic legal norms and regulations.

I. INTRODUCTION

While the use of privatized force has been a longstanding feature of mili-tary campaigns, the boom in military and security outsourcing in Iraq andAfghanistan has attracted new attention to the status and role of privatizedmilitary and security actors under international law. Public attention hasbeen focused on frequent reports of security contractors impunity for anyhuman rights abuses, criminal misconduct, or aggressive behavior while en-gaged in coalition operations.1 Based on these negative reports, many have

* J.D., Harvard Law School, 2007. This note is winner of the 2007 Harvard International Law Jour-nal Student Note Competition. Funding for this research was provided by the Harvard Islamic LegalStudies Program and the Harvard Winter Travel Grant Program. Special thanks to Jack Goldsmith,Richard Goldstone, Martha Minow, Nikolaus Grubeck, and the Harvard Human Rights Program fortheir support and assistance.

1. See, e.g., James Glanz & Alissa J. Rubin, From Errand to Fatal Shot to Hail of Fire to 17 Deaths, N.Y.TIMES, Oct. 3, 2007, at A1 (describing the shooting of 17 civilians by a Blackwater security convoy);Farah Stockman, Civilians IDd in Abuse May Face No Charges, BOSTON GLOBE, May 4, 2004, at A1(noting the involvement of private contractors in the Abu Ghraib torture scandal); Andrea Weigl, PassaroWill Serve 8 Years for Beating, NEWS & OBSERVER (Raleigh, N.C.), Feb. 14, 2007, at B1 (describing theprosecution of a former CIA interrogation contractor for beating an Afghan detainee to death); William

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222 Harvard International Law Journal / Vol. 49

argued that private military and security companies (PMSCs) are no morethan modern mercenaries,2 and therefore should also be banned under thestanding international prohibition on mercenarism.3

There are significant legal, policy, and practical reasons for treatingPMSCs differently than mercenaries, however. The existing instrumentsprohibiting mercenarism would be difficult to apply to most PMSCs, mak-ing it easy for the many states that want to continue to use these companiesto circumvent the standing international ban. Coordinated internationalregulations of PMSCs, by contrast, might feasibly be enforced. Market forceshave been pushing PMSCs to be more compliant than mercenaries in thepast with international and domestic legal regulations. This is particularlytrue of PMSCs seeking contracts from international actors and states thatcare about hiring reputable privatized forces. Emerging state practice favor-ing regulatory solutions for PMSC issuesparticularly among those statesthat are most often the clients, host countries, or home countries ofPMSCssuggests that regulation of PMSCs would have more widespreadsupport than a prohibition on mercenarism.

The availability of advanced, independent security and military capabili-ties for hire enables states or nonstate actors to get around political or re-source constraints that otherwise might limit the use of force. Moreover,since independent PMSCs are not considered part of a states armed forces orsupporting militias under international humanitarian law (IHL), stateshave weak legal responsibility for the functions they outsource to PMSCsand for the conduct of individuals carrying those functions out. States there-fore have few incentives to develop accountability and control mechanismsthat would prevent or redress the type of misconduct and international lawviolations that have been associated with private military and security com-panies in Iraq and Afghanistan.

M. Arkin, Blackwater and War Crimes: A Dangerous Equation, Early Warning, Oct. 15, 2007, http://blog.washingtonpost.com/earlywarning/2007/10/blackwater_and_war_crimes_a_da_1.html (noting that theUnited Nations was investigating whether the Blackwater shooting could be classified as a war crime).

2. See, e.g., U.N. Econ. & Soc. Council [ECOSOC], Commn on Human Rights, The Right of Peoples toSelf-Determination and its Application to Peoples Under Colonial or Alien Domination or Foreign Occupation, 57, U.N. Doc. E/CN.4/2004/15 (Dec. 24, 2003) (prepared by Enrique Bernales Ballesteros) (equatingmodern PMSCs to mercenaries), available at http://www.unhchr.ch/Huridocda/Huridoca.nsf/e6802d4a3d1ddbefc1256610002ee274/69ecaf81b3a74d8ac1256e5b00684da2/$FILE/G0317313.pdf; Press Release,United Nations, Private Security Companies Engaging in New Forms of Mercenary Activity, Says UNWorking Group (Nov. 6, 2007), http://www.unhchr.ch/huricane/huricane.nsf/0/AC7F341BE422A006C125738B0055C48C [hereinafter U.N. Press Release]. South Africa has also treated private security firmsand contractors as mercenaries in its domestic legislation. See, e.g., Regulation of Foreign Military Assis-tance Act 15 of 1998 (S. Afr.), available at http://www.info.gov.za/gazette/acts/1998/a15-98.pdf.

3. International Convention Against the Recruitment, Use, Financing and Training of Mercenaries,adopted Dec. 4, 1989, 2163 U.N.T.S. 75 (entered into force Oct. 20, 2001) [hereinafter Convention AgainstMercenaries]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to theProtection of Victims of International Armed Conflicts (Protocol I) art. 47, June 8, 1977, 1125 U.N.T.S.3 [hereinafter Protocol I]; see also infra notes 5557. R

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2008 / Mercenarism 2.0? 223

This article will propose that many of the issues with PMSCs could beaddressed by creating an IHL principle that recognizes and regulates stateuse of PMSCs as a means of warfare. The threats created by PMSCs might beaddressed in large part by IHL provisions providing that states who out-source government security or military functions in support of those combator humanitarian operations that would otherwise trigger IHL must establishinternal oversight, accountability, and liability mechanisms to ensure thatthese actors comply with international and domestic legal norms and regula-tions. In Part II, this article will first describe the development of the pri-vate security sector after the Cold War, the common types of privatizedforce, and the types of service they typically provide. Part III will then eval-uate the claims that security contractors should be treated as mercenaries,and argue instead that the corporate form of private military and securitycompanies, and the advanced independent capabilities enabled by that cor-porate form, not only distinguish them from mercenaries of the past, butmay also create additional challenges to the international system that justifydifferent treatment. Part IV will conclude by arguing that a regulatory ap-proach to the PMSC problem is more likely to be collectively enforced thana ban, and by suggesting that an IHL provision recognizing outsourcing as amethod of warfare and requiring states to regulate and assume responsibilityfor it accordingly may address many of the threats posed by PMSCs.

II. THE EMERGING PRIVATE SECURITY SECTOR ANDITS ROLE IN MODERN WARFARE

The number of security contractors in Iraq is estimated to be 20,000 to30,000 or greater,4 making them the second-largest contingent in Iraq afterU.S. forces.5 There are an estimated 10,000 security contractors in Afghani-stan, including local nationals, third-party nationals, and Afghan securitycompanies.6 The more prominent role of private security contractors in coa-lition operations and the involvement of some private security contractors inheadline-grabbing incidents of human rights abuse have reignited policydiscussions about security outsourcing and how international or domesticlaw might provide stronger accountability for these actors.7 Before address-

4. Toni Pfanner, Editorial, 88 INTL REV. RED CROSS 445, 445 (2006). However, some