Just War Theory and the Privatization of Military Force

James Pattison*

ABSTRACT: The use of private military companies (PMCs) has become increasingly prevalent, with such firms as Blackwater, MPRI, and DynCorp taking over a growing number of roles traditionally performed by the regular military. This article uses the framework of just war theory (JWT) to consider the central normative issues raised by this privatization of military force. In particular, I first examine the claim that private contractors are inappropriate actors to wage war because they contravene the JWT principle of right intention. The next section asserts that the use of PMCs is largely consistent with the application of the principle of legitimate authority but undermines two of its central rationales. In the third section, I apply the jus in bello principle of discrimination to PMC personnel. Overall, the article aims to bring the ethical issues posed by the privatization of military force under normative scrutiny by using the framework of JWT. I also suggest some revisions to this framework to ensure that JWT can fully respond to the issues that the privatization of military force raises.
KEYWORDS: private military companies; just war theory; right intention; legitimate authority; jus in bello
CITATION: James Pattison (2008) “Just War Theory and the Privatization of Military Force”, Ethics & International Affairs, 22 (2), pp. 143–62.

Since the 1990s there has been a marked growth in the private military industry. Private military companies (PMCs) have been taking on an ever-increasing number of roles traditionally performed by the regular military. These range from supplying training, logistics, and other support services to engaging occasionally in actual fighting. This is most notable in Iraq, where the U.K. and U.S. governments have employed a host of “security” companies, such as Aegis, Blackwater, Control Risks Group, Erinys, Vinnell, and KBR. The use of these companies has by no means been limited to Iraq, however. Nor is it only the United Kingdom and the United States that have made use of their services. Other states, multinational companies, NGOs, and even the United Nations have hired PMCs.

Although there are many reputable PMCs, the sharp increase in the use of such firms has raised a number of normative concerns and, in some quarters, strong opposition. Yet the ethical implications of using PMCs have been generally under-theorized in the current literature.¹ The aim of this article is to begin to fill this lacuna. Accordingly, I consider three central normative issues raised by the privatization of military force. These issues are analyzed within a just war theory (JWT) framework, which, given its rich normative categories and significant historical pedigree, provides the obvious foundation on which to examine the ethical issues raised by the privatization of military force. Yet modern JWT has been largely state-centric and relies heavily on the domestic analogy, which treats states as possessing the same features as individuals (such as unity). For this reason, I will also offer some suggestions on how JWT can be updated so that it continues to be relevant in light of the rise of nonstate actors, such as PMCs.

More specifically, the first section considers the claim that private contractors are inappropriate actors to wage war because they contravene the JWT principle of right intention. The privatization of military force, I suggest, indicates that we should move toward a conception of right intention that both differentiates it from right motive and incorporates those using force. The next section asserts that the use of PMCs is largely consistent with the application of the principle of legitimate authority but undermines two of its central rationales. In the third section, I apply the jus in bello principle of discrimination to PMC personnel. Overall, the article brings the moral challenges posed by the privatization of military force under normative scrutiny by using the framework of JWT. I also make some suggestions for how this framework should be extended and updated to respond the increasing use of PMCs.

Before continuing, two brief points of clarification are necessary. First, the three issues that I focus on are not the only normative challenges posed by the privatization of military force. They simply strike me as the most important. Second, the issues that I consider may not be unique to PMCs. Indeed, other issues (such as terrorism and humanitarian intervention) may also highlight the need for revision of JWT. The privatization of military force simply adds to the case.

One may object straightaway that the use of private military actors is nothing new. Private actors—most commonly mercenaries—have frequently been prevalent in the international system, from the condottieri to the Dutch and British East India companies. Indeed, certain principles of JWT arose to some extent in response to the problems posed by mercenaries.² But this does not necessarily mean that it adequately copes with the challenges posed by the recent rise of PMCs, especially given the state-centrism of modern JWT. Moreover, it is worth noting that PMCs are usually held to differ from mercenaries. There are, of course, many similarities, such as the provision of military services for financial gain. Indeed, although the focus of this article is on PMCs, some of the issues discussed may be relevant to mercenaries as well. However, unlike mercenaries, PMCs have a clear corporate identity. They have boards of directors and shareholders, trade openly (for the most part) on the global marketplace, have ties with governments and other corporations, and offer a broad array of services to a wide range of clients worldwide.³ Also note that, for the purpose of this article, I adopt Simon Chesterman and Chia Lehnardt’s definition of PMCs as “firms providing services outside their home states with the potential for use of lethal force, as well as of training and advice to militaries that substantially affects their war-fighting capacities.” ⁴

Inasmuch as we tend to think that it is morally acceptable for attorneys, merchant bankers, and stockbrokers to be motivated by generous remuneration, why is it objectionable that PMC personnel may also be motivated by financial gain? The problem is rooted in the combination of financial motivation and military force, which typically involves inflicting harm upon others. Of course, the majority of private military contractors are not engaged in combat operations, and so not all will harm others directly. But the objection can be extended to include those who assist others to harm—for example, by providing security and training. In sum, there are limits to the actions that an individual can legitimately undertake for financial gain, and these limits prohibit harming or assisting others to harm.⁷

It is sometimes replied that this objection to private force has little validity, because it also applies to regular soldiers; that is, many regular soldiers are motivated by financial gain. Indeed, Tony Lynch and A. J. Walsh note that “the modern military spends much of its time promoting itself as a ‘career option’ characterised by competitive remuneration and levels of skill acquisition.”⁸ A second response is that PMC personnel are not necessarily motivated by financial gain. They may have other motives, such as a sense of adventure and, potentially, a desire to fight for a cause (which, conceivably, they perceive to be just); or they may have been in the military all their adult lives, and so know no other profession. Nevertheless, it would be odd if there were no difference in motivation between PMC personnel and regular soldiers. Since a PMC is a private company, the decision of its board to agree to undertake a contract can be expected to be profit-driven. Similarly, it is likely that high wages will sometimes be an important motivating factor (if not the sole factor) in a private contractor’s decision to accept a contract. Indeed, the high salaries in the private sector are often blamed for the “brawn drain” of regular soldiers from the military. Overall, we can expect that financial considerations will figure more prominently in the decision-making of PMC personnel than in that of their public counterparts, who may be motivated by other considerations, such as national duty.

A further response asserts that, even if PMCs are motivated primarily by financial gain and so differ from regular soldiers, this is not necessarily problematic. In fact, it is argued, regular soldiers’ motive of national pride is potentially more dangerous given that, for example, it may lead to the dehumanization of the enemy. Consequently, Lynch and Walsh argue that arguments against private force “which rely on the idea of . . . ‘right intention’ are inadequate, unless ‘right intention’ is defined in such a way as to presuppose in a question-begging manner patriotic defence of the nation-state.”⁹

This response fails to persuade, however. The objection does not concern the absence of a suitable motive, but the presence of an unsuitable one. That is, the use of private contractors is not problematic because they lack a virtuous motive in patriotism. Rather, it is that those using or assisting military force should not possess a particularly problematic motive, and a financial motive (along with, for example, sadism, xenophobia, hatred, and revenge) seems to be objectionable in the context of military force. The problem with this motive is perhaps best brought out in an unjust war, where private force is used to assist the achievement of an immoral end. In such cases, private contractors are motivated by financial gain to such an extent that they will knowingly fight for an unjust cause. Consider the example of a PMC member who hires out his services to a drug cartel, a terrorist organization, or a genocidal dictator. To be sure, there is something wrong if regular soldiers are willing to defend abusers of human rights out of misguided patriotism. But it seems particularly egregious if individuals are motivated simply by financial gain to do so. There are two reasons in particular why a financial motive in general may seem troublesome. First, the financial motive is individualistic (at best it includes family members). Second, in extreme cases it suggests an amoral approach, and, in particular, indicates few limits on what one might do for personal gain. To be sure, I am not claiming that all PMC personnel are self-interested and amoral. Of course, private contractors are likely to have a mix of motives. The point is simply to indicate why a financial motive may be problematic.

Sometimes those who reject this objection about right intention argue (implicitly at least) that motives are of no relevance whatsoever in warfare. For instance, Uwe Steinhoff claims that to insist on right motive in warfare confuses moral judgment “with snooping around in other people’s hearts and minds. . . . Its affinity to totalitarian thought-control gives us every reason to reject it.”¹⁰ But this is too strong. Motives are frequently used in moral judgment. Take the banal example of a man stealing a loaf of bread with the motivation of feeding his starving family. Conversely, we would think it objectionable if an individual is motivated to fight out of bloodlust. Accordingly, motives do, to some extent, seem to matter in warfare—even if, as I suggest below, they may be outweighed by other considerations.

Does this mean that the use of PMCs should be rejected under the JWT principle of right intention? This is too hasty. And it brings us to an important distinction between intention and motive. An individual’s intention is the objective or purpose that they wish to achieve with their action. On the other hand, their motive is their underlying reason for acting.¹¹ It follows that an agent with right intention aims to tackle whatever it is that the war is a just response to, such as a humanitarian crisis, military attack, or serious threat. But their underlying reason for having this intention need not also concern the just cause. It could be, for instance, a self-interested reason. To give an example, suppose that a private contractor is employed to protect a governmental official. His intention is to protect the official from roadside attacks, suicide bombers, and so on. His actions are orientated toward achieving this goal—for instance, he drives his armor-protected vehicle only on certain routes to avoid potentially dangerous situations. His motive for this behavior, however, is not that he thinks this official is worth protecting—he is apathetic toward the official. Rather, it is that he knows he is likely to receive another handsomely paid contract if he is successful. Thus, there is a difference between the intention of the contractor (to protect the official) and his motive (to win another contract). This distinction is sometimes obscured on accounts of right intention; yet once it is made, we can see that the objection to PMCs concerns motives rather than intentions.

Notwithstanding, we may think that an individual’s motives are, generally speaking, of little, if still some, concern in the overall rectitude of war. In short, they do not seem to be as important as other concerns. To flesh this out further, although the Kantian-inspired arguments for the importance of right motivation may be persuasive for certain moral questions, the force of such arguments largely (but not completely) dissipates in the context of military force. This is because the intrinsic importance of an individual’s having a right motive is outweighed by the much higher moral consequences at stake. That is, it pales into insignificance when contrasted with other values that are important to the justice or injustice of a war, such as responding to a just cause, using force proportionately, following jus in bello, and having a reasonable prospect of success. An individual’s mind-set seems far less important than these other qualities. In the example above, for instance, what is morally important is not that the contractor is motivated by financial gain, but that his intention is to protect the governmental official (presumably a just cause), and that he does so effectively and without violating rules of jus in bello. Note that this is not simply a point about the motives of those deploying or assisting in the deployment of force. The motives of decision-makers also seem to be morally insignificant.¹² Nor is this a point about the triviality of the financial motive in particular. The moral importance of individuals’ possessing other potentially egregious motives, such as bloodlust, would also be outweighed by greater consequences at stake in warfare.

Intrinsically, then, right motives do not seem to be of the utmost relevance. Although it may be regrettable that some private contractors are motivated by financial gain, this is insignificant in the grand scheme of war. Of course, having a proper motive could be instrumentally important. In fact, it might be argued that the motivation of PMCs is problematic for instrumental reasons. For example, Fred Schreier and Marina Caparini assert that “the profit motive and the inflexibility of contracts and personnel also contribute to their lack of commitment to the overall objectives of the military mission.”¹³ Yet such instrumental concerns can largely be captured by focusing on the intentions of private contractors. Indeed, we may think that the use of PMCs is problematic not because of the motivations of private contractors, but because of these individuals’ intentions.

My reasoning is as follows. When a state employs a PMC, it uses an independent, private agent to help fulfill its goal. The company may, however, possess objectives that differ from those of the state contracting its services. This is because PMCs are ultimately accountable to their shareholders. In fact, a state may authorize a private company to undertake a certain action, but in practice have little or no control over whether that action is actually achieved. The contracts that are signed between states and PMCs do little to alter this situation: they often are unmonitored and ambiguous, and so do not ensure state control of the PMC activities in the field.¹⁴ Moreover, it is unlikely that the market acts as a strong disincentive for firms that deviate from or terminate their contractual obligations. For instance, DynCorp went on to hold lucrative deals with various U.S. administrations even though it broke a contract, leaving the U.S. State Department in difficulty in Liberia after heavy fighting.¹⁵ Thus, it seems that there are two key problems with PMCs in this regard. First, they may contravene the JWT principle of right intention themselves, given that some companies pursue financial gain rather than respond to just causes. Second, the use of PMCs can undermine the good intentions of the employing state, given the potential for discrepancy between the intentions of the state and those of the PMC.

On certain formulations of the JWT principle of right intention, the focus should be on the intentions of the decision-makers. This approach challenges the relevance of (certain) PMCs’ apparent lack of right intention, since the intentions of those carrying out (and assisting in) the use of force are irrelevant. Furthermore, one may object that this account of the principle of right intention does not fit within jus ad bellum. The problem is that it involves the intentions of PMCs and their personnel during warfare (the realm of jus in bello) on, for instance, particular missions, whereas jus ad bellum is concerned with the prewar period—when it is permissible to launch a war. Hence, the just war theorist Brian Orend notes that normally “the jus ad bellum criteria are thought to be the preserve and responsibility of political leaders whereas the jus in bello criteria are thought to be the province and responsibility of military commanders, officers and soldiers.”¹⁶

Yet the privatization of military force indicates that such a conception of the JWT principle of right intention is outmoded. When using PMCs there can be a significant disjuncture between the intentions of those authorizing the use of force and the intentions of those undertaking or assisting the use of force. For this reason, we may need to roll out the principle of right intention to cover both those authorizing force and those using it (or assisting in its use). That is, if we hold that the JWT principle of right intention is important, it is also vital that those undertaking the use of force possess right intention.¹⁷ Although this view of right intention may not fit neatly into jus ad bellum, this does not undermine the fact that we need to be concerned with the intentions of those undertaking (and assisting) force during war. If we limit this principle to the preserve of the prewar period, we risk rendering obsolete the concerns that it highlights. In fact, this may give us reason to extend our thinking on jus in bello, particularly to develop Orend’s under-analyzed notion of internal jus in bello (discussed below). We should consider the intentions of those undertaking the use of force during war as well.

There have been a number of recent criticisms of the moral importance of legitimate authority. For instance, in the light of the Iraq war, Fernando Tesón suggests that the Security Council suffers from notable deficiencies because some of those who sit on it do not meet requirements of political legitimacy.¹⁹ Indeed, it may be questioned whether being authorized by a legitimate authority is a necessary condition of the justice of a war. A relevant example in this context is NATO’s intervention in Kosovo, which lacked Security Council authorization but was widely held to be morally justifiable. Notwithstanding, we may still hold that legitimate authority has some moral significance. That is, it is an important, if not necessary, factor in the overall justice of a war. There are two central reasons for the moral importance of legitimate authority: the enabling of the regulation of warfare; and the facilitation of democratic control over the use of force. Significantly, the use of PMCs undermines these two central rationales.

The effective upholding of such measures necessitates the limiting of the number and type of actors that can legitimately engage in warfare. Indeed, what they have in common is that they regulate the use of force by states and intergovernmental institutions. For instance, James Cockayne suggests that “international humanitarian law relies on territorial control and hierarchical administration as the cornerstones of the system of responsible provision of humanitarian goods, services and treatment.”²⁰ A more permissive international system in which a wide variety of actors use force makes it more difficult to sustain effective legal and political instruments to govern warfare.

The employment of PMCs is largely consistent with the principle of legitimate authority, traditionally conceived, since states—and not PMCs—tend to authorize the use of force. However, the use of PMCs undermines some of the key justifications of the principle of legitimate authority: the limiting of the frequency and the awfulness of warfare. This is because the privatization of military force introduces a set of nonstate actors that do not fit into state-based systems of regulation. Although a state that employs PMCs is still subject to international law that proscribes certain types of behavior (such as aggressive war), the use of PMCs means that it is harder to enforce such prohibitions.

First, the use of PMCs makes it difficult to apply the current restrictions on when war can be waged and who can wage it. They provide a way for governments to deploy military force without the blatancy of state action—for instance, by enabling foreign policy by proxy. Moreover, the privatization of military force increases the number of actors able to use military force in the international arena. PMCs improve the abilities of otherwise militarily incapable states and can also aid nonstate actors to use force. In this context, Schreier and Caparini assert that “PMCs have worked for . . . rebel groups, drug cartels, and before 9/11, two al Qaeda–linked jihadist groups.”²¹ Hence, the rise of PMCs means that there are more actors and less control in the international system, and this increases the likelihood of instability.

Second, the privatization of military force can lead to what are, in effect, more horrific wars—that is, wars in which jus in bello are violated, in particular, the principle of noncombatant immunity. Whereas regular soldiers are subject to a number of laws that restrict the conduct of warfare, PMC personnel operate largely outside the effective jurisdiction of national and international law.

In particular, as Sarah Percy claims, there are no specific legal instruments concerning PMCs.²² The three main legal instruments prohibiting the use of mercenaries (the OAU Convention for the Elimination of Mercenaries in Africa, Article 47 of Protocol I additional to the Geneva Conventions, and the United Nations International Convention Against the Recruitment, Use, Financing, and Training of Mercenaries) do not clearly apply to PMCs. Furthermore, the status of PMC personnel under international humanitarian law is ambiguous. For example, it is unclear whether contractors can legally be understood to be “combatants” and therefore have a right to prisoner-of-war status under Article 4 of the Third Geneva Convention.

Moreover, the states in which PMCs operate frequently lack the ability (and sometimes the willingness) to prosecute contractors who commit wrongdoing. In Iraq, for example, the Coalition Provisional Authority Order Number 17 specifies that Iraqi laws or regulations do not apply to contractors.²³ In addition, the regulation of PMCs by the states in which the firms are based varies from state to state, and is generally limited. For instance, although the Military Extraterritorial Jurisdictional Act (MEJA) applies to nonmilitary personnel associated with the U.S. military abroad, it excludes misdemeanors and relies on the will of prosecutors to bring a case to court. This will is often lacking because of the complexity and expense of extraterritorial prosecutions.²⁴

The problem is that this lack of effective legal accountability results in impunity. In Iraq, for instance, a number of PMC employees have been involved 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 any criminal prosecution.²⁵ Similarly, in Bosnia, DynCorp was implicated in a sex-slave scandal, but none of its employees has ever been put on trial, and the company later fired the whistle-blowers.²⁶ Of course, not all PMCs and private contractors take advantage of the lack of effective legal accountability (and, in addition, regular soldiers may not always be adequately prosecuted for abuses). The point, rather, is that, unlike states, there is currently no effective system of accountability to govern the conduct of PMC personnel, and this can lead to cases where the horrors of war—most notably civilian casualties—go unchecked. One widely reported example occurred in September 2007, when Blackwater employees allegedly opened fire on civilians in Nisour Square, in central Baghdad, killing seventeen Iraqis.²⁷

The defenders of PMCs cite the fact that there is some self-regulation by the private military industry as firms have become increasingly concerned about their public image. Furthermore, Doug Brooks, president of the International Peace Operations Association, a U.S. trade association, argues that private companies have been exemplary in their behavior because they employ elite troops from highly trained militaries.²⁸ Moreover, according to Brooks, PMCs can be expected to be inherently lawful because transgressions will affect their reputation and, therefore, their profitability. However, as industry expert P. W. Singer argues, the need to retain a positive reputation may simply mean that PMCs cover up, rather than report, violations of human rights by their employees.²⁹ Moreover, violating principles of jus in bello may cut costs and therefore be in the financial interests of the company.
Democratic Control
The second rationale for the principle of legitimate authority is that it increases the opportunities for democratic control over the use of force. This is because such control is currently feasible, for the most part, only within a state-based framework.

Democratic control over the use of force is morally valuable for a number of reasons. First, it is intrinsically valuable for reasons of self-government and individual autonomy. If the U.K. population is to be self-governing, for instance, it is important that British citizens have some say in when and how their state wages war.³⁰ Second, as claimed by democratic peace theorists, democratic control is instrumentally valuable since it leads to more peaceful behavior, particularly in relations with other democracies.³¹

Again, the privatization of military force challenges this central rationale of the principle of legitimate authority. That is, although the use of PMCs is largely consistent with traditional notions of legitimate authority, it undermines democratic control over the use of force.³² To start with, governments can employ PMCs to bypass many of the constitutional and parliamentary constraints on the decision to send troops into action. For example, PMCs were employed in Bosnia to circumvent the cap of 20,000 U.S. troops imposed by Congress.³³ In addition, using private companies gives the government more scope to initiate war covertly or to extend the size of state involvement without public debate beforehand. The use of PMCs can make military operations more palatable to domestic publics, since contractor casualties rarely make the headlines and are not counted in official death tolls.³⁴ Moreover, the privatization of military force introduces an additional set of actors into the battlefield. This potentially blurs the lines of command and control from state leaders to the troops on the ground, especially if PMCs are not fully integrated into the military hierarchy and, as discussed above, have intentions that differ from those of the state employing their services.³⁵
Solutions
I want to consider briefly three revisions to JWT that will help to solve these challenges to the central rationales of legitimate authority. The first is to reaffirm not only the importance of legitimate authority but also the principle of public declaration of war, which holds that war needs to be declared openly and in accordance with the constitutional and parliamentary conventions on waging war. This principle has been frequently ignored in recent accounts of jus ad bellum. However, the Kantian notion that just war requires the majority backing of elected representatives is important for the instrumental and intrinsic reasons outlined above. The fact that PMCs offer governments a politically convenient way of waging war without proper declaration means that we need to take this principle more seriously. As such, this first solution focuses on those authorizing the use of force. By contrast, the next two solutions concern those being authorized.

As argued above, the use of PMCs is, to a certain extent, consistent with the JWT principle of legitimate authority, yet undermines two of its central justifications—the regulation of warfare and the opportunity for democratic control. The second solution is to think of the principle of legitimate authority as comprising not only those who authorize force, but also those who are undertaking it or assisting in its use. And, on this broader principle, only legitimate, state-based actors can perform the waging of war.

The third solution is to develop a new category of jus in bello. Here I build on a distinction made by Orend, who argues that we can differentiate between external and internal principles of jus in bello.³⁶ External jus in bello concerns the principles that a state should follow in connection with the opposition and its armed forces. This is what we normally think about when discussing jus in bello (that is, principles of noncombatant immunity, proportionality, and so on). Internal jus in bello, by contrast, concerns the principles that a state should follow in connection with its citizens and soldiers.

What sorts of principles should be included under internal jus in bello? The privatization of military force highlights, in particular, the need for a principle that restricts the sorts of soldiers a state can justifiably employ when waging war.³⁷ It seems clear that a state cannot use child soldiers to pursue its aims. It may be argued that similar restrictions should be placed on the use of PMCs. Given the problems of regulation and democratic control discussed above, there may be reasons to limit the use of private contractors in certain roles at least (such as engaging in, or assisting, combat).³⁸ The argument is not that we should rule out the use of PMCs because of intrinsic problems with their use, as is the case with child soldiers. Rather, the point instead is a pragmatic one: It concerns the problems of international instability, the violation of noncombatant immunity, and the potential to undermine the democratic use of military force, which are largely caused by the ineffectively regulated and murky environment in which PMCs currently operate. Until there is a stronger system of regulation governing PMCs that penalizes—and ultimately reduces—abuse and achieves greater governmental transparency over the use of these firms, a state that employs private contractors to engage in, or directly assist, combat should be considered to be violating (internal) jus in bello.³⁹