Journal of Global Ethics
Vol. 6, No. 3, December 2010, 323– 338
Alternative agents for humanitarian intervention
Carmen E. Pavel∗
Department of Philosophy, University of Arizona, Tucson, AZ, USA
The use of private security companies by national governments is met with widespread
skepticism. Less understood is the role these companies can play in international
humanitarian interventions in the service of international organizations. I argue here that
despite valid concerns about the use of such private entities, we should nonetheless see
them as legitimate participants in efforts to secure human rights protection around the
globe. In order to assess their legitimacy, we need to ensure, among other things, that they
can adhere to ethical standards when serving in humanitarian missions, that they can be
held accountable when they fail to uphold the standard of justice enshrined in international
law, and that their for-profit status does not have implications detrimental to humanitarian
concerns.
Keywords: private security companies; legitimacy; human rights; humanitarian intervention;
international law
In 1994, in the span of 100 days, 800,000 Rwandans were killed and millions were displaced, in a
genocide whose pace and severity exceeded all other genocides of the twentieth century. At the
time, the UN Secretariat refused to intervene, even though it was and still is the main body in the
UN entrusted with guarding human rights (Barnett and Finnemore 2004, 121). It had justified its
policy of non-intervention by claiming that the violence was a problem internal to Rwanda. The
conflict was labeled a civil war, not genocide, and outside intervention was deemed inappropriate (Barnett and Finnemore 2004, 121 –55). The Rwandan genocide is recognized today as one
of the most resounding failures of international human rights protection.
A little known fact is that early on, as the genocide was unfolding and the international community was just starting to grasp the magnitude of the horror to follow, a private security
company (PSC) offered a swift and low-cost solution to Kofi Annan to stop the genocide
(Weiner 2006). Annan, who was then the UN Under-Secretary General for Peacekeeping,
decided against it. This was not going to be the first or the last opportunity for the UN to hire
a private force. Earlier in 1994, Annan commissioned a study from a British private firm on
subcontracting control of the camps in eastern Zaire to meet the peace and security threats in
Hutu-run refugee camps (Bures 2005, 539). The UN decided to hire a Zairian police contingent
instead, which turned out to be inadequate for the task (Shawcross 2001, 144). In 1996, both the
UN Security Council and the UN Department of Peacekeeping Operations discussed hiring a
private force to end the ongoing violence in the eastern Democratic Republic of Congo
(DRC). Two companies made bids to secure a humanitarian corridor but they were ultimately
turned down (Bures 2005, 539). Another PSC offered the UN assistance to stop the killing in
Darfur, Sudan, in 2006 and the offer was again, declined (Walzer 2008). Was Annan right in
rejecting the solution offered by the private security force to the Rwandan crisis? In cases,
such as Rwanda, and Sudan, where humanitarian missions are justified, and we assume that
an international institution such as the UN is the appropriate moral agent to direct the
∗
Email: [email protected]
ISSN 1744-9626 print/ISSN 1744-9634 online
# 2010 Taylor & Francis
DOI: 10.1080/17449626.2010.524803
http://www.informaworld.com
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intervention, what role, if any, should PSCs play? Can they be legitimate participants in efforts to
ensure human rights protection around the globe in the service of international institutions?
Many argue that such private entities cannot. While a substantive public discussion about
their role and legitimacy is only beginning to emerge, at least in the academic community,
concerns that address both moral and practical considerations have already been voiced publicly
(Rosky 2004; Shorrock 2004; Surowiecky 2004; Cowell 2006; Scahill 2007). PSCs are for profit
companies, and this fact shapes their motivations and incentives in charged political conflicts.
Their nature as private agents makes them unaccountable for their actions. We cannot ensure
that the actions of these PSCs will reflect publicly shared ethical standards. These are all
reasons, the critics say, to reject PSCs as illegitimate participants with a role in international
humanitarian crises. According to this perspective, Annan was right to turn his back on them
in the Rwandan case, and we should further discourage their use in international peacekeeping
operations.
These valid concerns notwithstanding, I believe we can take a more moderate position.
Humanitarian crises both overwhelm and outsize the institutional capabilities currently available
at the international level. The meager institutional responses to international crises, and the
questionable track record of previous human rights interventions, should compel us to reconsider
whether PSCs provide legitimate options for responding more effectively to humanitarian
challenges. This does not imply a wholehearted endorsement of the current practices of PSCs.
Instead it would require a substantial redefinition of their role. My paper offers one view in
the emerging debate of their justification, legitimacy and function in promoting justice.
Humanitarian interventions raise special problems. They are difficult and dangerous, they are
costly in terms of resources and human lives, and have low chances of success. Moreover, humanitarian military interventions are an infringement on the sovereign rights of independent
nations, impose burdens and responsibilities on the interveners and have lasting consequences
on the political landscape. As such, interventions need to pass a high threshold of acceptability.
Even if the cases that warrant humanitarian interventions are few and far between, given the
justificatory hurdles they must pass, the question of an appropriate institutional response
becomes crucial. We need to ask whether the tools that the UN has at its disposal are themselves
legitimate. PSCs can offer solutions for humanitarian interventions, although they are by no
means the only agents that can do so.
The paper is structured as follows. Section 1 discusses the severe need for effective
humanitarian relief and documents the emergence and capabilities of PSCs. Section 2 articulates
a standard of legitimacy for PSCs derived from a respect for human rights. Section 3 addresses
the distinct problem of working for profit in the context of humanitarian interventions. The final
section discusses what I call structural conditions of legitimacy. These are necessary background
conditions generated by the environment in which PSCs operate that ensure PSCs act according
to legitimate rules.
1.
A role for PSCs in humanitarian interventions
In Uganda, East Timor, and the DRC hundreds of thousands of people have been mercilessly
killed, refugees have been abused in camps, women have been raped and tortured, and children
have been forced to join armed rebel groups under the threat of death. These mass abuses go
on unnoticed for years by the international community. The response of the international
community to the more visible crises of Rwanda and Darfur is either completely lacking or
inadequate. Some humanitarian interventions have had moderate success. Other interventions
have not only failed to lessen the suffering, but made things worse. The United Nations
operations in Somalia (UNOSOM II) aggravated the humanitarian situation by increasing the
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level of violence, which drove out aid organizations and led to the loss of more human lives
(Seybolt 2007).
The United Nations is the organization that typically spearheads and coordinates
humanitarian missions, from humanitarian aid to peacekeeping to military intervention. These
three types of humanitarian missions involve the use of military force to different degrees.
Humanitarian aid operations employ armed security staff to ensure the security of UN personnel
and of the participating governmental and non-governmental groups, and also to ensure the
safety of the civilian population targeted by the aid. Peacekeeping operations have a more
distinctive military mandate, from implementing ceasefire agreements, to maintaining the
security of key governmental institutions and public facilities such as airports, and to monitoring
the security situation in a given geographic perimeter. Humanitarian intervention forces,
falling with peacekeeping operations under the Department of Peacekeeping Operations
within the UN, usually receive a broader permission to use force. For example, the mandate
of the ongoing UNIMIL mission in Liberia is in part to ‘to contribute towards international
efforts to protect and promote human rights in Liberia, with particular attention to vulnerable
groups’ (UNMIL 2003). The UNAMID mission in Darfur, Sudan, acting under Chapter VII
of the Charter of the United Nations, provides security for safe provisions of humanitarian aid
and also for the protection of the civilian population under imminent threat of physical force
(UNAMID 2007). The permissible use of force increases from humanitarian aid, to peacekeeping, to humanitarian interventions with a Chapter VII mandate. The last one is the most
permissive in keeping with its more demanding purpose of protecting human life in the face
of massive physical threats.
By most accounts, the UN is not an organization designed to fight wars. Its peacekeeping
missions are underfunded and have serious problems of staffing, oversight and training. In
addition, building a military force is a long and cumbersome process, since member countries
are unwilling to assign their soldiers and cover the cost of risky operations. The result is
often that UN missions are staffed by second rate militaries, which neither have the training
or the motivation to fulfill their task (Brahimi 2000; Seybolt 2007, 271– 3). Additionally, the
UN peacekeeping force fluctuates drastically. While the UN has seen an optimistic support of
its peacekeeping activities after the end of the cold war, and has consequently seen its
members’ forces more actively involved with its programs, the peacekeeping failures in
Bosnia, Somalia and Rwanda have served to substantially reduce UN activity in the late
1990s (Singer 2007, 59). Regional organizations, such as NATO, or the Economic Community
of West African States can cover some of the security fissures that a shrinking UN role leaves
unattended, but the sheer number of conflicts and the humanitarian crises these conflicts generate
overwhelm the realistic capabilities of these organizations to effectively manage conflicts and
provide humanitarian relief (Singer 2007, 60).
PSCs, while a relatively new phenomenon, are increasingly active in international conflicts
and their role is only likely to increase in the future. The participation of PSCs in humanitarian
interventions can alter the life prospects of people affected by humanitarian crises around
the world. By placing the question of legitimacy of PSCs in the context of international
humanitarian missions, I do not take a position on whether the PSCs are legitimate as an
extension of a sovereign nation’s military. Whether states can legitimately use PSCs to
advance their own security objectives raises different normative concerns as Paul Verkuil
shows (Verkuil 2007).1 But why do PSCs exist at all?
There is no one cause that led to the spreading of private security industry activity since the
early 1980s. The rapid privatization of security operations is part of a larger trend in the
globalization of commercial services (Avant 2005, 9). In addition, nations with great military
powers have been increasingly unwilling to provide security for unstable areas around
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the globe. Their citizens have developed a growing intolerance for the loss of human life in
conflicts, the supply of force has become more limited by increased costs and military professionalization, and the need to cover multiple conflict areas has amplified. These trends have
all encouraged the spread of PSC activity.
The professionalization of military service in developed countries was a significant development. With the decreased social acceptance of compulsory military service, many western
armies have progressively given up building their military force on conscripts alone and have
relied instead on volunteer military personnel. This professionalization has had the double
effect of freeing up well-trained military personal that subsequently started or joined PSCs,
and also of reducing the scope and capabilities of government armies, especially of international
missions. This in turn created an oversupply of trained military personnel and an undersupply of
security capabilities around the world (Avant 2005; Singer 2007).
PSCs have responded in part to this increasing demand for security. They trade in military
skills such as combat, strategic planning, intelligence, risk assessment, training and technical
knowledge. They are typically distinguished from individual mercenaries operating for
personal profit. PSCs are modern business organizations with a permanent structure, and they
are integrated into financial markets, where they trade and compete openly. As such, PSCs
are subject to the laws and regulation of the country that licenses them (Singer 2007, 44– 7).
They are legal, public entities subject to public scrutiny and oversight.
Some make a distinction between PSCs that can actually engage in combat alongside
national forces, and PSCs which engage only in defensive operations.2 However, the broader
definition used by Chesterman and Lehnardt (2007) seems more apt: PSCs are firms engaging
in security and support services in conflict zones with the potential for use of lethal force
(pp. 2 – 3). This definition takes into account the difficulty of distinguishing between offensive
and defensive operations in situations of conflict, especially when there is no clear frontline.
Moreover, many of the PSCs integrate services that do not involve the use of force but which
are as important to armed fighting (such as intelligence, military training or strategic planning)
as is actual fighting power, which makes it difficult to distinguish between non-military and
military operations (O’Brien 2007, 38– 9).
The industry is global in scope and activity, operating in many conflict areas around the
world, in the service of states, multinational corporations and humanitarian NGOs. By some
accounts, PSCs have been involved in every multi-lateral peace operation led by the UN
since the 1990s alongside other non-governmental and governmental partners (Bellamy and
Williams 2004; Avant 2005, 7). They have supplied non-combat services for humanitarian
missions, long-term development assistance, and have participated in post-conflict reconstruction programs. PSCs have provided water cleaning and distribution, engineering, construction,
de-mining operations, medical services, convoy security, logistics and intelligence (Lynch
2001; Breyton 2005). In Darfur, Sudan, PSCs have assisted troops from the African Union by
preparing bases and setting up logistic systems, and they have monitored UN-brokered
cease-fire agreements (HBSACIR 2004, 11). PSCs have offered protection for UN headquarters
security in the field. In the DRC, PSCs have provided security for the UN Kinshasa offices during
periods of unrest in 1997 (Breyton 2005, 312). PSCs have trained the military forces of
ECOWAS in Liberia (HBSACIR 2004, 35).
Some governmental and NGO reports endorse the use of PSCs in peacekeeping operations. A
Green Paper by the British Foreign Office (2002) and an analysis by Refugees International
(2003) are among them (Bures 2005, 534 – 5). The former UN Under-Secretary Sir Brian
Urquart, considered the founding father of peacekeeping, is an advocate for using PSCs in humanitarian operations, claiming that PSCs are greatly needed in a field of international cooperation
where there is so much demand for services for humanitarian services and so few resources to
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satisfy it (Singer 2005). During these peace operations, PSCs have not been used in direct
combat roles, but if they were, they could provide the badly needed assistance to peacekeeping
and human rights protection in unstable areas around the world.
The presence of PSCs in conflicts around the world is part of a trend likely to continue and
expand. This fact, however, is not a sufficient reason to endorse them as legitimate participants in
international humanitarian interventions. We need to discuss normative standards of legitimacy
that would render them acceptable, such as whether they themselves respect human rights,
whether they can be held accountable when they fail to do so, and the wider implications of
using for-profit companies in sensitive political conflicts. I will turn to each of these issues next.
2.
Respect for human rights
Are PSCs legitimate participants in humanitarian interventions? The answer to this question
depends in part on whether they can respect human rights. Companies should not engage
directly, or through the actions of their personnel, in egregious behaviors that cause harm and
human rights violations. For humanitarian interventions, the appropriateness of a company’s behavior is directly relevant to their capacity to accomplish their mission. In the case of genocide
for instance, we should care whether the company is a responsible agent and will not increase the
risk of harm to the victims of abuse. Its past history serves as a proxy for assessing its reliability,
which in turn is relevant to its capacity to carry out its task effectively and with minimal damage.
But one major reason of concern for those who oppose the use of PSCs in any context is that
the record of existing PSCs is mixed in this regard. While they can provide crucial services, such
as water cleaning, de-mining and refugee security, some of these companies have been involved
in a series of highly publicized scandals which raise doubts about the legitimacy of the industry
as a whole. The United Nations Special Rapporteur echoed some of these doubts in his 1997
Report on the use of PSCs, when he portrayed them as ‘an obstacle to the enjoyment of
human rights by people who have to endure their presence’ (Zarate 1998, 146).
The use of private contractors in Iraq is an instructive case (Avant 2006, 325).3 Public awareness of the high reliance of the US military on private contractors was heightened at different
points in time during the occupation due to events that implicated PSCs in a negative way.4
PSCs made the news when private contractors were involved in the Abu Ghraib prisoner
abuse scandal and more recently when Blackwater personnel were accused of killing 17 civilians
in what the company claims was an act of self-defense (Avant 2006, 326). Instances of such
problematic behavior can be more dramatic, as in the case of DynCorp, a private security
contractor operating in Colombia, Afghanistan, and in former Yugoslavia. In some of its past
operations, DynCorp has been involved in sexual abuse and human trafficking (Singer 2004;
Smith 2004).
These reports are troubling. Private companies should be taken to task for falling below a
minimum threshold of moral acceptability, especially given their capability of yielding lethal
force. Nonetheless, we should place the perils of using PSCs in perspective. When we evaluate
the legitimacy of PSCs for humanitarian missions it matters what the available institutional
alternatives are. It is important to note that both national armies in the service of UN peacekeeping missions and humanitarian NGO’s have been plagued by similar problems (Hoge
2004; Lynch 2005).5
Of course, this does not make the abuses of PSCs more acceptable. Human rights standards
for PSCs should be high. Private companies are acceptable providers of security in humanitarian
interventions only if they have not previously committed serious human rights violations. This is
the ideal standpoint from which to evaluate the proposal from any PSC to participate in humanitarian interventions. The standard should apply both to the selection of PSCs and to provide
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security in current crises, and serve as a signpost for future companies. In practice however, we
may be confronted with ethically difficult bargains if we do not find PSCs with perfect records.
Given the big stake – saving large populations under massive threats of physical force – should
we consider companies whose record is not perfect? Think of the following example. Suppose
your child has fallen into a river and is at risk of drowning. You cannot rescue her because you
cannot swim. A passerby offers to jump in and save the child. You just happen to know,
however, that the passerby is racist, or worse, has broken the law before. Should this fact
make you say ‘stop, no thank you, I do not want you to save my child, I prefer that she
drowns rather than be saved by you’? I think not. You may have reservations, but they will
not be strong enough to make you rule out her saving your child on their account, and they
will not prevent you from being grateful to the passerby for successfully intervening, even if
it may color your subsequent interactions with that person (perhaps you will not become
close friends). The point of the example is to test our intuitions about the proper way to
balance the different ethical considerations at play. Some aspects of the character and history
of the person who offers to save a child may be important, but they will be overridden by the
fact that, the person in question is indeed able to save a life that matters to you very much, or
any life for that matter.
This is an ethically difficult bargain, but one that strikes the appropriate balance between the
overwhelming concern for the present victims of abuse and the past history of the agent who
intervenes on their behalf. The relative weight of this point in our judgment should depend on
the availability of alternatives. The perfectly just alternative is often simply not available.
The only other possible option for such an armed force in the service of a just intervention
would be the armed forces of a state or a group of states. While the military forces of different
nations occupy a broad spectrum on the justice dimension, hardly any force qualifies as being
perfectly just. This mode of weighing different ethical dimensions challenges the more
extreme claim that the very existence of PSCs with a checkered past should make us disqualify
the industry as a whole. Just as when individual states behave badly, we do not question the
legitimacy of the state as a mode of social organization, we should not use the dubious
history of some companies to disqualify PSCs as a whole. To claim that PSCs are synonymous
with human rights abuses is to overstate their risks and to foreclose opportunities to discover
solutions to humanitarian emergencies around the world.
We might in the end decide that PSCs are legitimate participants in humanitarian missions
only if they meet a high threshold of respect for human rights. But even such PSCs must act with
legitimate authority. Who should authorize the use of force for humanitarian interventions?
Under current international law, humanitarian interventions must be authorized by the UN
Security Council (Frank 2006). A new multilateral authorization agent could emerge in the
future, but for now the UN Security Council is de facto and de jure the authorizing agent.
Assuming that the humanitarian intervention is just, and the body that hires the PSC is one
that is itself seen as legitimate, the PSC’s mandate comes from legitimate authority. This
does not mean that the decision to intervene in a humanitarian emergency is straightforward,
or that the moral importance of the appropriate agent to authorize the intervention is adjudicated
once and for all. Rather when and after such evaluations have been made, then the question of
legitimate authorization for the actions of PSCs has been settled. There is a separate issue about
whether PSCs will overcome the lack of political will on the part of states to commit resources
for humanitarian interventions. We need to acknowledge that this is indeed a serious problem,
and I think it is hard to anticipate how it will play out if the issue of hiring a PSC for humanitarian
intervention would be on the UN agenda. On the one hand, there are reasons to hope that support
for using PSCs instead of national militaries will be easier to garner, because of the possibility of
reducing costs and a less pressing concern from domestic constituencies for human casualties.6
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On the other hand, the relative novelty of this institutional solution, and the uncertain odds of
success given the low-level involvement of PSCs in humanitarian interventions so far,
may make the building of political will on their behalf less likely, at least until they build a
sound track-record of successful interventions. Nonetheless, when the decision to engage in
humanitarian intervention is made by the right authority and for the right reasons, and the
PSC considered for the job is itself legitimate, the reservations about deploying a PSC in
humanitarian interventions should diminish.
3. Humanitarian intervention and profit
Another concern of legitimacy is the for-profit status of PSCs. This represents a distinct kind of
worry that sets it apart from other private entities such as NGOs. PSCs are essentially private
businesses working for profit, and this fact colors their interactions with their environment.
Critics have articulated at least three disquieting implications of this aspect of PSCs. The first
is that profit is an illegitimate motivation for any military force, second, that profit can undermine the ability of PSCs to act according to ethical standards, and third, that PSCs will incite
more wars in search of higher profits.
Let us start with motivation. Two international treaties, Article 47 of the Protocol I additional
to the Geneva Convention (1977), and the UN Convention aimed at controlling mercenary
activity (2001), outlaw mercenaries, defined as a foreign force with no national association to
any of the parties of the conflict, and with a dominant financial motivation (Percy 2007).
PSCs are normally distinguished from mercenaries. Still this definition captures the assumption
that mercenaries, in particular, and by extension PSCs, do not fight for an appropriate cause.
They are induced by money rather than patriotism or other appropriate motivations, and
therefore are immoral or dangerous (Percy 2007, 371).
Motivation is important, but its importance is overstated, and relying on motivation to
distinguish PSCs from other types of military agents is misleading. Lawyers, doctors and
government employees also work for money. However, what is problematic for private
security forces is the combination of financial motivation and the ability to inflict physical
harm (Pattison 2008, 145). But as others have observed, financial motivation is a highly
problematic way to differentiate mercenaries from other fighters, including soldiers in the
service of public armies. During the debates that led to the creation of Article 47, this difficulty
became clear (Percy 2007, 377). A fighter in an armed conflict may have mixed motives,
ranging from ‘private gain accompanied by indifference to the cause which that force is
supporting, to a conscientious conviction that the merits of the cause are so great as to
justify sacrificing his own life’ (Percy 2007, 379). In fact, a father told of his deceased
son’s ‘deep sense of patriotism and [. . .] abiding Christian faith that led him to work in
Iraq’, which Jeremy Scahill describes as ‘a common sentiment in the private military community’ (Scahill 2007, 145– 6). That any one of the different possible motivations is dominant
would be exceedingly difficult to prove, rendering the distinction unworkable. Consequently,
relying on motivation to distinguish different types of military actors is normatively problematic. Given this difficulty, it is hard to explain why the criterion of financial motivation
made it into the final version of these treaties after all. Sarah Percy believes that the strong
consensus against the mercenary norm at the time rallied various delegates in support of
this unworkable definition, even if it was clear that it faced insurmountable difficulties of
application. It has thus prevented the signatories of the declarations from going down the
more feasible path, that of outlawing certain actions rather than discriminating based on the
identity of the agent, just as it would have any other combatant under the existing prescriptions
of international law (Percy 2007, 380).
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The focus on right motivation comes for a long tradition in the just war theory, that dates
back at least to Aquinas, who argued that just wars are distinguished by just cause, proper authority and right intent, criteria that have been adopted and expanded by contemporary just war
theorists (Nardin 2006, 24). When private companies offer to help in humanitarian emergencies,
some are concerned that their profit motive encourages them to take advantage of a global crisis
(Scahill 2007, 350). But we should insist, as James Pattison has done recently, that having the
proper motivation is offset by more substantial concerns, such as ‘responding to a just cause,
using force proportionately, following jus in bello, and having a reasonable prospect of
success’ (Pattison 2008, 148). It matters much less why PSCs offer to protect the victims of
potential genocides, than whether they can offer effective protection for at risk populations.
Some argue that even states participating in humanitarian interventions are themselves rarely,
if ever, motivated chiefly by redressing injustice to the victims and compassion for their
suffering. As Thomas Pogge puts it, ‘there are no humanitarian heroes out there’, and most
countries will be indifferent unless there is something in it for them (Pogge 2006, 166).
The real question one needs to ask is not whether a soldier engaged in a humanitarian
emergency has the right sort of motives, but rather whether those motives are compatible
with a humanitarian concern. Mixed motives are troubling for some precisely because they
can trigger conflicts of interests. If soldiers’ dominant motivation in a humanitarian intervention
is profit, they may very simply change their mind, turn around and abandon their post when the
situation becomes too difficult, or if they feel the compensation is not adequate for the risks
involved. Conflicting interests in this case can affect the reliability of private security forces.
But how should we evaluate this potential risk? Is financial motivation likely to make PSCs
less reliable, or more? First, if this is a risk at all, it is not unique to PSCs. State militaries
can also change their mind and leave difficult conflict situation. This is precisely what the US
military force has done in Somalia. It has abandoned the joint UN force after 18 of its soldiers
were killed in an event that was widely publicized in the USA. The withdrawal if the US military
eventually left the country in chaos. States, like any other agent, may have other interests that
conflict with their humanitarian concerns. The USA was in this case driven to leave by negative
publicity at home and domestic electoral pressures to keep the number of US casualties small.
This risk can be mitigated to some extent by hiring agents (states or PSCs) with a track-record
of reliability, and by holding them accountable if they fail to hold their end of the bargain.
In addition, because this risk is partly due to the arduous nature of the undertaking, one may
anticipate mixed motives to have the opposite effect instead. The presence of mixed motives
may be advantageous in the following way. In scenarios that are dangerous, stressful and
costly in terms of human lives, additional motives may provide the necessary impetus to stay
engaged when other motivations fail. Many NGOs, for instance, oppose humanitarian intervention if the interveners have other interests that may be served by the intervention. However,
Taylor Seybolt, who analyzed the conditions for success and failure in humanitarian military
interventions, argues that this dismissal may be warranted in some instances, but in general
such ulterior motives have significant benefits. It can motivate the intervener to resist and
sustain consistent effort in the face of tremendous adversity (Seybolt 2007, 26). The costs and
risks of failure are extremely high, especially when fighting perpetrators of mass violence,
which are often governments who have devoted substantial material and political resources to
inflict their abuses. Interventions are served by political interests because they translate into
political will to devote substantial military capabilities and risk soldiers’ lives in cases where
the perpetrators of violence are determined to fight to death in order to preserve political
power and the benefits of their violence (Seybolt 2007, 276). For instance, when governments
have both political and humanitarian motives, the chances of success are higher, as was the
case with India’s intervention in East Pakistan in 1971 (Seybolt 2007, 26, 264). The dangers
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engendered by mixed motives are best kept in check when the intervention is publicly authorized
by an intergovernmental body such as the UN (Seybolt 2007, 265). The more general point is
that the for-profit motivation can spur similar determination in PSCs to that created by political
interests in governments. Additional motives may provide the incentive needed to persist in
deadly and difficult environments and render humanitarian missions successful. Consequently,
the presence of mixed motives alone does not lead to an inherent conflict of interest that
should automatically disqualify PSCs as participants in humanitarian interventions. Rather,
the presence of mixed motives could be quite advantageous.
The second concern about profit is whether it can undermine the ability of the PSCs to act
according to widely accepted ethical standards. How can we ensure that a concern for public
values is consistent during humanitarian missions, and not just a fleeting disposition that can
easily be supplanted by changing circumstances?7 Speaking about the use of PSCs in Iraq,
Larry Cox, the executive director of Amnesty International and one of the harshest critics of outsourcing military operations to PSCs, said that they operate in ‘a virtual rule-free zone in which
perpetrators are not likely to be held accountable for breaking the law’ (Cowell 2006). Public
concern with accountability is fueled, at least in the USA, by a seemly irresponsible decision,
known as Order 17, made by L. Paul Bremmer, Bush’s first envoy in Iraq, to immunize contractors in Iraq form prosecution (Scahill 2007, xx, 150, 223). Until recently, PSCs have been
virtually exempt from prosecution in both civil and military courts in the USA.
There are at least two ways to ensure this consistency. One is to encourage the companies
to follow ethical standards as part of the contractual requirements. The other is to ensure
respect for public values through the laws that govern the activities of the PSCs, an option
to which I will return later. One of the highly promising and insufficiently exploited routes
for securing adherence to public values from PSCs is to make ethical standards part of the contractual relationship itself. Laura Dickinson believes that the contractual moment offers an
ample opportunity for inserting public law values in the privatized relationship (Dickinson
2006). ‘The moment of contracting’ she says, ‘is always a moment when oversight is possible’
(Dickinson 2005, 235). Contracts can provide standards of behavior, performance benchmarks
and a measure of public accountability. The contract can ensure that broad public norms such
as respect for human rights, democratic values of inclusiveness and reciprocity, and norms
against corruption and waste become part and parcel of the execution of the humanitarian
mission itself.
Among the contractual requirements that could accomplish this task, Dickinson mentions
directly incorporating public law norms in the contract, such as the Geneva Convention, or
the Convention against Torture, requiring training of the private security forces on practices
compatible with respect to human rights, imposing contract monitoring by public officials and
third parties, including provisions for contract termination in case of unsatisfactory performance,
and allowing broader public involvement in contractual design (Dickinson 2006, 410). This
will work in conjunction with strengthening international law to more clearly define the
status, rights and responsibilities of PSCs.
Third on the list of concerns is the following expectation. Private security contractors will
have, at a minimum, incentives to incite more conflicts, or leave the conflicts they enter unresolved, in the hope they can make more money off successive contracts. Some point to the
close connection between high ranked politicians, US military personnel and the boards of
the PSCs as evidence that the PSCs have the interest and the means to influence a risky and
unnecessarily belligerent foreign policy (Shorrock 2004, 6; Scahill 2007). If founded, this
worry can have troubling systemic implications, by increasing the number or duration of
conflicts in which PSCs are involved, and by causing instability in the international system
from spillovers from conflict areas.
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One way to react to this concern is to say that insofar as PSCs can influence decisions to go to
war or engage in unjustified military interventions, the problem resides with the political process
of the institutions in question, and not with the PSCs themselves. National governmental
authorities and international organizations should be more careful about conflict of interests
and should seek to insulate themselves from and disallow this kind of undue influence from
the security industry. PSCs should not be able to exert pressure on momentous decisionmaking processes, such as going to war with another country, or initiating humanitarian
interventions, in appropriately structured institutional contexts.
Focusing on a different dynamic can allay this worry. The incentive structure PSCs face has
significant effects on the way they behave. Many argue that reputation pressures should work to
induce the companies to deliver effective results and bring conflicts to a close rather than the
opposite. Firms competing in the market will need to differentiate themselves in other ways
than price alone. Companies have incentives to behave responsibly not because they are altruistic,
but because it is beneficial for them in the long run to conduct themselves well (Kinsey 2006). The
better they execute their contracts, and the fewer compromising situations they create, the more
their reputation is enhanced and their opportunities for future contracts expand (Avant 2005,
221). Companies themselves claim that illegitimate behavior is bad business. Many of them
have adopted codes of conduct more stringent than international human rights codes.8
One objection to this way or dispelling the worry that PSCs will have an incentive to incite
more conflicts is to show that it is has not been damaging for their reputation in the past to behave
illegitimately. Companies with bad practices continue to get lucrative deals even when they
should not, due to prior questionable behavior. Indeed, DynCorp continued to receive lucrative
contracts with the USA even after a breach of contract in Liberia and numerous public accounts
of their human rights abuses elsewhere (Spearin 2005; Pattison 2008, 149). This is proof to
some that markets cannot provide disincentives for bad companies and encourage responsible
behavior for good companies.
This is an important concern. However, incentives depend on the institutional context in
which the corporations operate, and on the size of the market. If the institutional context, by
which I mean the system of rules, laws and accountability systems in place are inadequate or
lacking, then the system of incentives is greatly distorted. Irresponsible behavior, far from
being weeded out, may actually flourish. Companies like DynCorp manage to get more contracts
because they are not held accountable in domestic or international courts when they fail to
uphold their existing contracts and behave irresponsibly, and because the US government is
not penalized for dealing with partners of questionable integrity. The contracts signed by the
USA with PSCs are unmonitored and ambiguous, and the state often relinquishes control and
oversight of their operations. In the case of international institutions such as the UN, this
concern should encourage first, responsible hiring practices, adequate drafting of contracts,
the creation of monitoring and enforcement mechanism, and second, the need for both internal
and external accountability mechanisms that ensure that the UN refrains from partnering up
with companies with dubious claims to legitimacy. If these institutional conditions are in
place, it will have an effect on the incentives of PSCs looking to do humanitarian work.
Additionally, it may well be that the supply of respectable PSCs is lower than the demand, so
there is little competitive pressure on the standards of PSCs. Once the UN will open up the area
of humanitarian intervention of PSCs to suppliers of a certain ethical profile, this fact alone may
have an effect on the shape current and future PSCs take in seeking to respond to this new niche
for their services. The effects of incentives emerge from a long-term process of adaptation both
to one’s competitors, to the nature of the demand, and to the regulatory background.
Here is a different way in which we can understand the incentive dynamic. If the concern that
profits induce bad service in the hopes of more profit were indeed founded, it would apply to
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333
other areas of services for profit, especially in areas where those on whose behalf the service is
performed are particularly vulnerable to perverse incentives. Medical services are such an
example. PSCs and brain surgeons are unlike in many respects, but they have one important
thing in common: they are in a position to help vulnerable people and save their lives, but
they can scheme to keep the beneficiary of their services in a state of recurring dependency.
According to this theory, we should expect brain surgeons to do their jobs shoddily in the
hopes of getting more business from the same client. But shoddy brain surgery would prompt
patients (those that remain alive at least) to look for care elsewhere. The influx of business
for the doctor who is scheming to trick patients would decrease. Good, conscientious brain surgeons do not get their income from repeat treatment on the same patient, unless medically
necessary, but from the number of patients that need their services, number which depends,
among other things, on the objective size of the demand for this kind of service.
So too, PSCs will get more work in humanitarian missions by tapping into the extremely
large demand for this kind of services around the world, and not by prolonging conflicts they
are already a part of. It is unlikely they will work themselves out of jobs simply due to the
sheer number of humanitarian crises where the UN and its governmental and non-governmental
partners could play a role. Scahill himself, a critic of extending the use of PSCs in international
crises, agrees with estimates that the potential for revenues is enormous because ‘there are a lot
of crises in the world’ (Scahill 2007, 351). Just as business comes to the brain surgeon who does
her job best, likewise the demand for particular PSCs services will increase in large part based
on their reputation of having done their job well in previous cases. The analogy between PSCs
and brain surgeons is limited, of course. They share the fact that the beneficiaries of their
expertise and/or authority are vulnerable to the ways in which it is used, but they are also
different. One important difference is that brain surgeons, at least in the USA, operate in an
environment that regulates their activities and provides additional incentives for them to
behave well, such as the threat of malpractice suits. The environment in which PSCs act
during humanitarian missions is also important. The presence of background conditions of
legitimacy are crucial to ensure that PSCs themselves are responsive to ethical norms and are
being held responsible for upholding them.
4. Structural legitimacy
Structural conditions of legitimacy affect how much leeway a private company has to stray
outside of the acceptable norms of behavior and what the consequences for doing so are. In
the same way domestic environments channel the behavior of private actors by structuring
legal protections and penalties, the health of the international environment in which PSCs
operate also affects their behavior. An effective legal system at the international level can
clarify the status of these companies, provide regulatory oversight of their operations, and
devise enforcement mechanisms for companies that do not follow the rules. Currently, the
most pressing concern for many is that ‘enforcement of norms is lacking; no effective international sanctions exist’ (Howe 1998, 3; Singer 2004).9 The absence of international law that
directly targets PSCs does not mean that there is no applicable law that governs their behavior.
International humanitarian law has extensive rules about participants in armed conflicts who are
not official members of regular armed forces. This law regulates their status and treatment
upon capture, the use of force by or against them, and state responsibility for their actions
(Doswald-Beck 2007). So for instance, all serious violations of international humanitarian
law are subject to universal jurisdiction (Doswald-Beck 2007, 134). Any state can give itself
criminal jurisdiction even if no connection can be traced between the perpetrator or the
victim and the state (Doswald-Beck 2007, 135).10 Nonetheless, there has been little legal
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practice involving PSCs as subjects of this body of international law. As a consequence, the
interpretation of many of the norms applying to PSCs is still unclear, and will only be made
more explicit through future practice. At present, this dearth of legal practice makes it difficult
to distinguish between companies that do not commit human rights violations, are law-abiding,
and are effective, and companies that do not meet any of these criteria.
There are several ways to structure the international environment in which PSCs operate.
Without providing a detailed and extensive discussion of all the possible steps to improve the
legal regime covering PSCs, I offer below a broad outline of the necessary changes along
with an explanation of the ways in which they can enhance the regulatory background. The
purpose is to show that there are many avenues to address the problem of accountability so
central to reservations about the contribution and effects of the industry. These involve both
short-term and long-term measures, and the first step would have to be the creation of a legal
regulator regime at the international level. Such a regime will not regulate PSCs out of existence,
like the current conventions on mercenaries attempt to do but rather prohibit specific activities
that are deemed unacceptable. Good international law will thus focus not on the identity of the
actors but on the nature of the acts (Chesterman and Lehnardt 2007, 2; O’Brien 2007, 28– 48).
Legal rules are needed not only to ensure that private companies responsible for abuses are
criminally prosecuted, but also that when the rights of the employees of these companies are
themselves violated, these violations can be addressed.11 Also, the regulatory standards need
to preserve the flexibility of PSCs and their ability to offer a rapid response in emergency
situations, a quality that is essential in humanitarian crises.
In addition to international law, municipal (national) laws could be strengthened to enhance
the conditions of legal legitimacy for PSCs. A series of reforms within the US legal system have
been triggered by the recent abuses of private security contractors working abroad under US
oversight, and these reforms are ongoing. For instance, the Military Extraterritorial Judicial
Act (MEJA), although limited in its applicability, promises to bring PSC employees who
have committed criminal acts elsewhere under the jurisdiction of US courts. US prosecutors
have already filed manslaughter charges under MEJA against five former Backwater employees
accused of recklessly opening fire on 17 civilians in Iraq in 2007 (Perez and Cole 2009).12 This
could be expanded to include PSC employees in the service of international institutions or any
other client. These national legal reforms are useful for closing loopholes both nationally and
internationally, and as such can act complementarily to international legal regimes (Singer
2004, 548; Avant 2005, 234).
Another possible step to improve the structural conditions in which PSCs operate is to devise
a licensing regime at the international level and coordinate licensing procedures at the national
level. Nationally, states could certify and license companies, require approval for contracts
undertaken abroad, and require notification of individual contracts (Caparini 2007; O’Brien
2007, 42– 5). At the international level, a licensing regime would help the international community identify a list of PSCs that can intervene rapidly in humanitarian crises, or offer other types
of humanitarian assistance. One proposal is that a public monitoring body be formed under the
auspices of the UN. This monitoring body would be in charge of vetting executive and employee
databases for violations of human rights and establishing lists of sanctioned businesses, very
much like the existing list of pre-approved companies that can work as contractors for the
UN in non-military activities (Singer 2004, 545– 6). Of course, such proposals raise other
potential questions about who will support the costs of such a monitoring program, and
whether the UN itself can guarantee impartiality given that member governments might have
self-interested reasons to be partial when their militaries compete with PSCs for resources
and perceived legitimacy.
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More generally, it is important not to overestimate the effectiveness of building any of these
tools. Drafting new international law is time-consuming and costly, consensus on the normative
dimensions of the law is difficult to forge, and effective enforcement mechanisms for international law are hard to come by. Recognizing these difficulties does not mean abandoning
efforts at regulation, but only expecting a realistic timeframe for their achievement. By
integrating these suggested approaches together, the international environment can move
incrementally toward creating better background conditions in which PSCs can function.
Before such an extensive structure of regulation is put into place at the international level, the
UN’s hand in hiring PSCs does not have to be tied. There is sufficient regulation in place to hold
PSCs responsible and many of the measures mentioned here can be implemented unilaterally by
the UN in a relatively short span of time. To begin, the UN could include exacting standards for
performance in the hiring contract, including human rights standards, and ensure the contracts
are monitored and enforced. The UN can also write up a list of approved private security contractors, just as they do for NGOs and private non-security services. In addition, international
humanitarian law can be extended to apply to the actions of PSCs, just as it would to other
participants in military conflicts who are not members of national armed forces, and should
be enforced via the universal jurisdiction principle. These multiple avenues could provide
strong enough accountability mechanisms in the short run to allow hiring PSCs to address
existing humanitarian emergencies or those arising in the near future.
The effect of the structural background conditions in the long run is to address the concerns
that the behavioral standards of PSCs will be set by their customers exclusively, those with the
most cash to buy their services. Even if we have reasons to trust customers such as the UN, who
have more reasons to care about widely shared ethical norms than other kinds of potential
employers, it is important to enhance the capacities of legitimate international organizations
to reach their goals through effective legal means.
To conclude, caution is in order, but a refusal to recognize PSCs as a permissible solution to
these humanitarian crises is misplaced. The extreme need for humanitarian action and the lack of
international commitment on the part of states should encourage us to explore other institutional
alternatives for human rights protection. PSCs could intervene in humanitarian crises as legitimate actors, provided they adhere to international human rights standards. In addition, we should
pay particular attention to how the institutional context inhibits or enhances the legitimacy of
PSCs. Endorsing PSCs is not equivalent to endorsing their current practices. The few broad
proposals offered here for structuring national and international law may induce a substantial
redefinition of the role and scope of PSCs. The existence of PSCs allows us to experiment
with new institutional tools to generate efficient approaches to global problem-solving. In the
face of dire humanitarian emergencies around the world, unjustified qualms about PSCs are
counterproductive and prejudicial to efforts to save human lives.
Acknowledgements
I want to thank the editors and anonymous reviewers for the Journal of Global Ethics for insightful suggestions and Victor M. Muniz-Fraticelli and Jean L. Cohen for feedback on an earlier
draft.
Notes
1. Verkuil argues that the current use of PSCs in Iraq by the USA goes against the constitutional mandate
of the US government. He says that while hiring private contractors in other areas of US administrative
services is acceptable, when the US government outsources its military functions, it fails to discharge
one of its core sovereign responsibilities.
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2. Peter W. Singer proposes a ‘tip of the spear’ typology according to the level of service and the level of
force the company offers, and divides PSCs into three different categories. The military provider firms
engage in actual combat. Executive Outcomes, Sandline, SCI and NDF are examples of companies
involved in direct combat and have operated in places such as Angola, Sierra Leone, Papua New
Guinea and Indonesia. Military consultant firms provide advisory and training services to restructure
a country’s armed forces and they do not operate on the battlefield. Some of the companies that
offer consultancy services are Levdan, Vinell and MPRI. Even if they are not directly involved in fighting during conflicts, Singer estimates that their impact is no less important than those of combat forces,
because they offer knowledge, training and strategic advice in actual conflicts that can make a big
difference on the battlefield. Military support firms offer non-lethal assistance such as intelligence,
transportation, and supply in the context of a military conflict or humanitarian relief (Singer 2007,
91– 100).
3. The use of PSCs in Iraq has multiple layers of controversy, which I will set aside here. Among them,
the US intervention itself is deemed unjustified. The unilateral manner in which it proceeded (without
support from the international community) is publicly questioned. Second, the use of private forces as
an extension of the military apparatus of the US army is also under scrutiny. PSCs operate in Iraq under
contracts with national armies, so they do not fall under the case I consider in the article, that of a
company employed by an international organization for a humanitarian emergency. Still, the controversies surrounding their activities there illustrate some of the main concerns raised by PSCs.
4. Avant estimates that one out of ten people deployed in Iraq early on were personnel of private military
companies, whose role ranged from technical and logistical support of the US troops, to training of
the Iraqi police force, the Iraqi army, to providing security to various international organizations
working in Iraq.
5. In the last years, several reports have documented the UN sex scandals that have plagued many of their
missions. UN peacekeepers and staff have engaged in widespread abuse by sexually exploiting war
refugees in exchange for protection and food, demanding sex at gunpoint, and trafficking prostitutes.
Independent inquiries made into reports of abuse dating back to 2003 have uncovered that by early
2005 still no action had been taken inside the UN to hold anybody accountable.
6. The point here is not that PSCs personnel’s lives are less valuable, but that they will be perceived as
removed from domestic political concerns compared with casualties in national armies, and therefore
their deployment will encounter less political resistance.
7. There is some evidence that in contexts where the standards are already lacking, such as failed or weak
states, PSCs provide a model professional behavior and concern for international values. When they
advise, train and provide support to local armies, they enhance the ability of the local forces to adopt
behavior norms that stress respect for human rights, the rule of law, and democracy (Avant 2005, 61).
8. See for instance, the code of conduct on the website of the International Peace Operations Association
(IPOA), the trade organization representing US-based PSCs, whose purpose is to promote high operational and ethical standards of its member companies. None of the companies involved in the Abu
Ghraib scandal were IPOA members (e-mail communication with Doug Brooks, IPOA president).
Blackwater left the organization shortly after the 16 September 2007 shootings in Iraq under pressure
from its members who were dissatisfied with the way Blackwater conducts its business, and the
negative light its actions shed on the industry as a whole (Cole 2007).
9. Emphasis mine.
10. Grave breaches are subject to obligatory universal jurisdiction under the Geneva Convention, although
Doswald-Beck notes that this obligation has not been well observed.
11. A legal framework is not only necessary to prosecute and punish DynCorp employees who have
engaged in human rights violations in Bosnia, but also to ensure that the employees of a PSC captured
by Colombian rebels on a mission contracted by the US government enjoy rights and legal status that
make it possible to grant them protection available to other groups in international law. Captured in
2003, four contractors and a Colombian soldier were taken into custody. Soon after the rebels shot
one of the contractors and the soldier. They were denied the status of Prisoners of War (POWs),
which offers some protection under international law. The fact that the USA labeled them ‘kidnappees’
instead of POWs probably did not help. The three contractors were finally released on 2 July 2008,
after the longest period any US citizen has spent in captivity (Avant 2005, 232–33; Romero and
O’Connor 2008).
12. In a serious blow to the Justice Department, the charges were thrown out by a federal judge late 2009
due to prosecutors mishandling the case (Savage 2010).
Journal of Global Ethics
337
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