The return of the mercenary

Since the end of the cold war, private armies have proliferated in every corner of the globe. In the world’s hot spots, most notably in Afghanistan and Iraq, companies providing security and military assistance are playing an increasing role. This worrying phenomenon has profound repercussions for humanitarian law and calls for a new approach.

An armed security guard watches from a highway railing as a truck burns at the rear, following an attack on Baghdad's airport road on 5 April 2004. ©Reuters / Ceerwan Aziz, Courtesy www.alertnet.org

WHO would have thought just ten years ago that mercenaries(1) would one day make a comeback? The phenomenon is striking: the number of specialists in weapons and all the military paraphernalia who live by war has sky-rocketed. During the first Gulf war, they represented a mere 1 per cent of the United States’ (US) forces. Since the conflicts in the Balkans and Afghanistan, their number has been steadily growing. There are some 20,000 of these new soldiers of fortune currently deployed in Iraq, 15 per cent of US forces (out of a total of 130,000 men and women). We are not talking here of a bunch of gun-toting bounty hunters, but of a multinational business, often listed on the stock exchange, with an annual turnover in excess of US$ 100 billion a year.

The business of war seems highly profitable: these companies account for one-third of the 2004 US budget for military operations in Iraq (tens of millions of dollars). The sharp rise in mercenaries is not just a question of numbers: the new “mercenaries”, paid between US$ 500 and 1,500 a day (more by far than the soldiers, although they are less exposed to risk), no longer provide backup for combat troops as they did in the quasi-prehistoric times of the first Gulf war. These private actors occupy ultra-sensitive positions in intelligence, security, logistics and training. Henceforth, the forces of neo-liberalism and globalization are at work in war zones.

(1)The term “mercenary” is used here in the commonly sense and not according to its strict legal definition.

Outsourcing war

In the face of the magnitude of this phenomenon and given that these private actors are often ignorant of the principles of international humanitarian law, at the beginning of 2004 the ICRC reinforced its approach based on making states responsible. “We want to avoid situations that are legally vague,” asserts Gilles Carbonnier, who works for the humanitarian organization in Geneva. “These people need to know that the provisions of the Geneva Conventions and humanitarian law in general apply to them too, and that they are obliged to answer for their actions. If employees of these companies violate these norms we need a clearly defined normative framework whereby they can be punished.” The ICRC is conducting an analysis of the legislation of various countries to gauge the extent to which it responds to these new scenarios on the battlefield. “Let’s imagine the hypothetical case of a South African employee of a US military company who commits abuses in Iraq, the local judicial system is weak. We need to determine then how this can be brought to justice,” Carbonnier. The ICRC points common Article 1 of the Conventions obliges states to and ensure respect” for international humanitarian law.

For the time being, the legal prevails. This could potentially offer impunity, placing private almost beyond the reach of the law. AS a result, the ICRC is not only calling states to assume their responsibilities states, but also intends to take issue the largest private military companies.

As Gilles Carbonnier states: “In the past, we had informal contacts with these companies, when we came across their recruits in conflict zones. Today, we want to foster an ongoing dialogue with the biggest of them. From now on, they are going to play a pivotal role in conflicts. We want to raise their awareness of humanitarian law and of our work, so that they do not pose an obstacle to our activities in the field. As a last resort, even though it is primarily the task of states, we have not ruled out dissemination activities for them, if that is deemed necessary to better protect communities affected by war.”

Peter Singer was the first to put his finger on the harmful effects of the privatization of war in his book Corporate Warriors: Rise of the Privatized Military Industry (Cornell University, 2004). “Soldiers are responsible if they breach the military code,” he writes. “But private combatants do not make up a formal part of the chain of command. They cannot face charges. In normal circumstances, they would be tried by local courts. But in Iraq, the judicial system is still not functioning properly. Moreover, their contracts often explicitly stipulate that they are immune from prosecution in local courts.”

The government of Côte d’Ivoire hired mercenaries to reinforce their army in response to unrest in the country in 2002.
©Georges Gobet / AFP Photo

Diluted responsibilities

The near guarantee of immunity creates fertile ground for the worst possible acts. In the Abu Ghraib prison near Baghdad, two private actors participated in the interrogations in which excessive force was used, but escaped punishment. Politicians have an interest in using the services of private armies, not least because, should a member of these forces be killed or taken prisoner, there is little risk of public opinion turning against the government, since it is not “their boys” who have been put in danger. Moreover, these former green berets, former agents of the apartheid regime or the KGB and other specialists are capable of particularly brutal repression, without their behaviour being directly attributable to a state. They can restrict the movements of humanitarian workers and terrorize the local populations. Quoted by Reuters, Kenny Gluck, director of operations of Médecins Sans Frontières-Holland, has sounded the alarm: “These companies, which are there to make a profit, are creating new problems for humanitarian workers, for they do not have a clear status. When we deal with the military, we can negotiate with the hierarchy. There is a clear-cut chain of command. But with these private armies, who is in charge? The shareholders?”

Former US ambassador Jonathan Moore has spoken out against the abuses caused by the policy of privatization of war: “The state is becoming dependent on operators over which it has no control. The chain of command and hierarchical structures are blurred. Discipline, control and the very ethos of military professionals have been placed on the line. Privatization of the army is creating more ambiguities and risks spiraling out of control.”

This worrying development has taken a new twist. On 10 August, Paul Wolfowitz, US under-secretary of state for defense, unveiled the Pentagon’s new strategy. He asked the US Congress to allocate US$ 500 million to building up a network of friendly militias throughout the world to “fight terrorism and insurrection”. This windfall will benefit groups established along the Afghan-Pakistani border, in Iraq, in the Caucasus, in the Horn of Africa and in several islands of the Philippines where Islamist fighters operate. War, subcontracted in this way, is taking on a new shape. Rarely before has respect for international humanitarian law been under such threat. The evidence is undeniable: making these modern-day mercenaries responsible for their actions is essential. Achieving this raises a formidable challenge.