The Ethics of Private Military Contractors

A couple of days ago, a NYTimes article revealed that Blackwater Worldwide, a private military contracting group, authorized about $1 million in secret payments intended to bribe Iraqi officials to silence their criticism following a September 2007 incident in which Blackwater security guards shot and killed17 Iraqi civilians in Baghdad.

This incident, disturbing in itself, and as one of my professors described, an example of the “’crony capitalism’ of the entire Iraq war financing coming home to roost” also raises a larger question which the Iraq war especially has surfaced: what are the ethical implications of using private military contractors in modern warfare, and correspondingly, what ethical standards should such contractors be held to?

Private military contractors (PMCs), unlike former private industries, do not provide the goods of modern warfare like the weapons, ammunition, and uniforms, but rather, the actual services of warfare. PMCs perform the functions once limited to state-sponsored soldiers, functions like training forces, logistics, and tactical combat. Basically, every activity available to state militaries can now be, and is, performed also by PMCs. P.W. Singer, in a 2005 interview with the Carnegie Council notes that one of the reasons we rely on the private military contractors is that the conduct of warfare itself has become so complicated that private soldiers simply do not have the expertise necessary to engage the level of technology used in modern combat

”If you were a US Navy sailor serving aboard a guided missile destroyer during the Iraq war,” notes Singer, “serving alongside you would have been twenty contractors from six different companies. They were the ones operating the air defense system, because it has gotten so sophisticated that we can’t keep people in the military to operate it. So we’ve turned to the private market.”

Singer also notes the size of the industry—approximately $100 billion per year in revenue on the global level, operating in over fifty different countries. The biggest client is the US.

“During the ten years leading up to the current Iraq war, the Pentagon entered into over 3,000 contracts with private military companies. . . Just one company in the military support sector, Halliburton and its KBR Division, just that one company has pulled in—depending on who does the accounting—somewhere between $13-16 billion worth of revenue related to the Iraq war. To put that figure in context, $13 billion is 2.5 times what the U.S. government spent (in current dollars) on the entire 1991 Gulf War.”

According the US Department of Labor, there were over 500 PMC deaths in Iraq as of September 2009. That number is way over1000 if you include Afghanistan.

The use of PMCs raises a host of ethical issues with towering implications for how we formulate a contemporary just war doctrine. The Just War Theory (JWT) provides rich normative categories with significant historical precedent with which to analyze the ethics of war. Typically, JWT is divided into two areas–ius ad bellum and ius in bello, the ethics of going to war and the ethics of fighting in war, respectively. Ius ad bellum requires that the war has a just cause, namely, self-defense; that the war is waged by a legitimate authority, typically the head of state; that the war has a high probability of success; that the intention of going to war is to establish a just peace; that the war is a proportional response to the threat at hand; and that the war is the last resort, namely, that the head of state declaring the war has attempted a number of other means of peaceably resolving the conflict.

If all other recourses fail, and a state goes to war, ius in bellum requires that the mode of combat is proportional, meaning that military attacks cannot be excessive in relation to the threat they face (no atomic bombs, e.g. against a developing nation without adequate combat technology) and most importantly, that non-combatants be granted protection. The principle of distinction between combatants and non-combatants ensures that only soldiers be included as military targets.

From the normative perspective of JWT, there are a number of ways with which to analyze the ethical implications of PMCs. One might argue that the use of PMCs violates the principle of just intention, namely, that PMC’s intention for going to war is not the establishment of a just peace but rather financial gain. This raises larger practical problems. A soldier who goes to war fights in obedience to the state in pursuit of the intentions delineated by the state. PMCs go to war because they have been hired to do so. They are bound not by obedience to the military, but obedience to the contract. Ass Tony Coady argues, “someone who hires his gun to the highest bidder or, less dramatically, fights predominantly for money will typically lack the motive appropriate to war, as specified by just war theory.” James Pattison calls this the “mercenary motive.” This is not to say that PMCs might not have very good motives, like patriotism, for going to war, but under the normative guidelines of JWT, the presence of an unsuitable motive (i.e. financial gain) seems objectionable as just according to ius ad bellum guidelines.

Additionally, the use of PMCs raises serious ius in bello questions such as how the principle of noncombatant immunity may apply in a war of contractors operating alongside military. Whereas state-sponsored soldiers are subject to legal measures that restrict the conduct of warfare, PMC personnel operate largely outside the effective jurisdiction of national and international law. Additionally, the status of PMCs under international humanitarian law is ambiguous. It is unclear whether PMCs can legally be defined as “combatants,” raising further questions about whether they can be granted prisoner-of-war status under Article 4 of the third Geneva Convention. James Pattison writes,

The problem is that this lack of effective legal accountability results in impunity. In Iraq, for instance, a number of PMC employees have been implicated in human rights abuses of civilians, but almost none have been prosecuted. More specifically, in his testimony to the House Appropriations Subcommittee, the investigative journalist Jeremy Scahill claims that while there have been sixty-four courts-martial of regular soldiers on murder-related charges in Iraq, only two private contractors have faced criminal prosecution.

This brings us to the article mentioned in the first paragraph of this post regarding Blackwater’s responsibility for 17 Iraqi civilian deaths. The normative force of JWT is that it should limit as much as possible the horrors of war by limiting the moral and legal right to wage war and by limiting the way in which war can be conducted. The use of PMCs, despite some advantages, does exactly the opposite of what the JWT strives to do—it opens up the possibility for more, not less, warfare.

First, the use of PMCs makes it possible for states to wage more wars. Despite the decline in the size of most state militaries, a potential disincentive to going to war, states now do not only have to rely on military might in order to successfully wage war. This makes it more likely that a state will choose to go to war rather than seeking alternative means of resolving conflicts that do not put military personnel in harm’s way.

Second, soldiers are strictly limited legally and morally in what they can and cannot do during warfare. Soldiers wear the uniform of the US and thus they represent not only themselves, but also their country. The morality of their acts reflect the morality of the nation they serve. In winning the hearts and minds of a conquered nation in and after warfare, it is critical that military personnel behave inscrutably, and they are given multiple incentives and disincentives to do so. PMCs have no such allegiance, and no such limitations to their behavior. They do not wear the US uniform, or necessarily even serve under the US flag. They represent only themselves, and not necessarily a greater collectivity, in their operations during warfare. Thus, they are less likely to limit the sort of actions they engage in, as we see in the Blackwater case.

Last, the use of PMCs blurs the lines of command in battle. The military’s strict hierarchical structure and protocol guarantees that in the stress of battle, each individual knows who he is accountable to. The use of PMCs, especially in cases where PMCs are hired for their technical expertise, raises the possibility of soldiers having to choose between two authorities in the heat of battle. The collapse of protocol leads to chaos, and in war, chaos leads to death.

As with most ethical inquiries, there is no clear-cut right or wrong. The use of PMCs in contemporary warfare is advantageous for many reasons that I did not lay out in this post. But when it comes to the ethics of warfare, the spirit of JWT is to limit warfare, largely by rendering the decision to go to war, and the possibility of fighting a war, as inefficient as possible. PMCs are directly contrary to that spirit of JWT. While there may be circumstances in which their use could be justified, I think that JWT theory demands we conclude that their general use is not just.