On 16 September 2006, a US Army convoy accompanied by guards employed by the Blackwater private military company was approaching Nisour Square in Baghdad. Believing an approaching car to be carrying a car bomb as part of an ambush, the guards opened fire, leading to an exchange of gunshots which left 17 Iraqis dead and a further 20 wounded. An FBI investigation found that at least 14 of the dead Iraqis were shot without cause.
Criminal charges were filed against the Blackwater guards and initially dropped, but charges against four men were reinstated. After a ten-week trial and 28 days of deliberation, a jury in Washington found three of the guards - Paul Slough, Evan Liberty and Dustin Heard - guilty of 13 charges of voluntary manslaughter and 17 charges of attempted manslaughter. The fourth guard, Nicholas A. Slatten, who the government said fired the first shots, was convicted of first-degree murder.
To say the incident did little to support US aims of winning the heart and minds of the Iraqi people is a gross understatement, and the use of private military and security companies (PMSCs) has fallen under closer scrutiny ever since.
Saving in an era of defence cuts
In an era of far-reaching defence cuts, the motivations behind using private contractors, whether on the battlefield or in more mundane logistics and support roles, are obvious. Although up-front costs may be significant, they are only paid during times of war and there is no long-term obligation to provide pensions or medical care. The Iraq War witnessed a significant upturn in the use of private contractors involved in military operations; in 2006 the US Department of Defense employed an estimated 100,000 contractors, representing an extraordinary tenfold increase over the Persian Gulf War just ten years previously. James Pattison, professor of politics at the University of Manchester, argues in his book The Morality of Private War that by seeking cost savings through using contractors, a lack of legislation risks violating civilian's human rights - and unclear terminology doesn't help.
"It is difficult is to come up with a clear definition of what a private military and security company, or PMSC, is," says Pattison. "There are discussions about whether they're mercenaries or not, but identifying an analytically clear definition of what are PMSCs is quite difficult."
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Pattison came up with a definition for his book to the effect that PMSCs "provide services for the military or security beyond the borders of the state". The services encompass two main areas: logistics, which is providing all the services that support the regular military from cleaning upwards; and security services, which may be armed and could include duties such as training, intelligence, convoy protection and interrogation. Despite the huge numbers employed in Iraq and Afghanistan, a significant proportion of which were carrying out armed security roles, the largest majority were logistical contractors hired to carry out far more mundane tasks.
According to Pattison, the biggest international employers of PMSCs are the US Department of Defense and the Department of State in Iraq. The UK has also been a big employer, while France and Russia have even discussed setting up state private military companies. Outside of the military, PMSCs are widely used to protect oil fields and tankers from piracy. The process is no different to acquiring a new tank or missiles - a defence ministry posts a tender for a specific requirement and bidders reply so the most suitable and best value offer can be selected.
One of Pattison's main concerns about the ethical status of PMSCs is that employees are more likely to be motivated by financial gain than regular soldiers, and are often viewed by the public as mercenaries, though in practice there's no clear distinction between the two.
"There's a matter of degree," he says. "Mercenaries are likely to be less corporate and come across as less professional. PMSCs try to get rid of the mercenary tag because it's used as a pejorative, and that's a key way they've tried to legitimise themselves."
Given this grey area, what are states looking for when they hire PMSCs over regular military members?
"It depends how sceptical you are," Pattison says. "One reason for the increased privatisation over the last 20 years is that it's perceived to be cost-effective. With private contractors, you only have to pay while you're at war, in essence. When you're relying on a regular military, you have to continually pay them regardless of what you're doing, plus pensions and medical care."
It could also come down to accounting, as staff costs come out of a separate budget to services, and staff costs are one of the budgets ministers have singled out to reduce.
The very existence of the PMSC business can also cost defence budgets dearly. At the higher end, hundreds of thousands of pounds are spent training someone to be a Green Beret who could potentially leave years before their normal career's end to become a private contractor. There is also a lack of open bidding - which is required in any other defence contract - simply because there are not enough private security companies to bid entirely competitively, so the best value cannot be assured.
Need for regulation
Beyond incidents as shocking as Blackwater, the current lack of regulation has other far-reaching effects. It can be difficult to know what the private military contractors are doing in a combat zone, and they could frustrate quite a lot of the programmes undertaken by the regular military.
"Beyond those immediate problems of efficacy and achieving the aims of the war, there are other issues," says Pattison. "There's not much transparency or public awareness of what's going on, so it makes it much easier for states to use military force - covertly in some cases - without knowing that that's happening. Or perhaps more likely, to decide and spare the involvement of the countries involved in the war."
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Pattison believe self-regulation would not go far enough, so how can this be brought under control? The main laws governing PMSCs are the Montreux Document and the International Code of Conduct (ICoC) for private security service providers.
Set out in 2008, the Montreux Document was the first significant attempt to define how international law applies to the activities of PMSCs when they are operating in an armed conflict zone. The ICoC built on these recommendations to set out the obligations of private actors.
"If a firm's employees violate human rights or are complicit in it and not doing anything about it, then they could be expelled from the code of conduct," says Pattison. "States would only agree to employ those that have a good ethical code of conduct."
In addition, Pattison believes there should be stronger national and international regulation regarding the administration of security companies, perhaps through the UN's working group on mercenaries, which has already attempted to come up with a draft convention to strengthen international law on PMSCs.
Pattison believes that while war is a necessary evil, given the problems with PMSCs the least bad option would be to use a regular military, preferably a one-tier voluntary force.
"PMSCs are problematic compared with the use of an all-volunteer force, and there are moral arguments surrounding conscripts too," explains Pattison. "I'm in favour of the all-volunteer force if we're going to wage wars at all. I'm not a complete pacifist."