The Emergence of Private Military Firms and Their Impact on Global Human Rights

The Emergence of Private Military Firms and Their
Impact on Global Human Rights

Tanay Kumar Nandi^[1]

Satabdee Mohanty^[2]

[ABSTRACT]

International law has generally been considered by the students of law as a subject with little practical relevance. However, the importance of international law in legal practice is increasingly being recognized in recent years. This may, in great measure, be attributed to the impact of globalization. Great strides in the field of commerce, technology and communication make one doubt whether transnational boundaries are going to disappear. Environmental concerns and human rights issues really transcend state borders and assume global dimensions. International law and international institutions have to play a dynamic role in response to the new challenges. In current situation, the study of international law can no more remain uninspiring.

Arising out of the dying embers of the Cold War, private military firms (PMFs)^[3] market their military force and skills primarily to decolonialized States, countries overrun with domestic conflict and unable to provide effectively for their own security needs^[4]. As a result, PMFs amass unchecked power to affect conflict resolution, world economic stability, and geostrategic negotiations. Indeed, as corporations become larger—both economically and politically--corporate managers increasingly engage in decision­making traditionally exercised by politicians^[5]. The decentralization of international security from state-organized militaries not only threatens the traditional Westphalian^[6] model of state-monopolized force^[7], but also accentuates the inability of international law to hold private actors accountable^[8] for their unchecked violation of basic human rights in conflict ridden regions.

1. INTRODUCTION

With the end of the Cold War and the advent of the War on Terror, Private Military Companies/Firms (PMFs)^[9] have become an ever present part of modern armed conflict and post-conflict reconstruction^[10]. They do have no dearth of clients^[11]. The implications of this proliferation of private security and military companies for international humanitarian law and human rights are only beginning to be appreciated, as potential violations and misconduct by their employees have come to light in Iraq and Afghanistan^[12]. This paper critically examines the theoretical risks posed by private military and security company activity with respect to violations of international humanitarian law and human rights, together with the incentives that these companies have to comply with those norms.

2. AN OVERVIEW ON PMF’S

2.1 What Are Private Military Companies/Firms?

PMFs are businesses that provide governments with professional services intricately linked to warfare; they represent, in other words, the corporate evolution of the age-old profession of mercenaries¹³. Unlike the individual dogs of war of the past, however, PMFs are corporate bodies that offer a wide range of services, from tactical combat operations and strategic planning to logistical support and technical assistance¹⁴.

2.2 Emergence Of Pmfs

The modern private military industry emerged at the start of the 1990s, driven by three dynamics: the end of the Cold War, transformations in the nature of warfare that blurred the lines between soldiers and civilians, and a general trend toward privatization and outsourcing of government functions around the world¹⁵. These three forces fed into each other. When the face-off between the United States and the Soviet Union ended, professional armies around the world were downsized¹⁶. At the same time, increasing global instability created a demand for more troops. Warfare in the developing world also became messier—more chaotic and less professional—involving forces ranging from warlords to child soldiers, while Western powers became more reluctant to intervene¹⁷.

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^[1] 3rd Year, National Law University, Jodhpur, India

^[2] 4th Year, Gujarat National Law University, Gandhinagar, India

^[3] For a general discussion of the term "private military firms," see P.W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry and Its Ramifications for International Security, Alernate Citation: 26 Int'l Sec. 186. Singer describes PMFs as corporate bodies specializing in the provision of military skills ranging from tactical combat and intelligence gathering to military training and technical assistance. Id. at 186. These military firms comprise an emerging industry offering a host of services.

^[4] Robert Mandel, The Privatization of Security, (2001). Essentially, two classes of private military firms have emerged; while some PMFs contract directly with foreign governments to equip, train, and advise militaries, others serve as proximate instruments of their own government's foreign policy. For a discussion of the distinction between PMFs used to prop regimes and PMFs as proxy foreign policy tools, see Steven Brayton, Outsourcing War: Mercenaries and the Privatization of Peacekeeping, 55 J. Int'l Aff.

303, 308-12 (Spring 2002). See also David Shearer, Private Armies and Military Intervention, Adelphi Paper No. 316 (1998).

^[5] Eric W. Orts, War and the Business Corporation, 35 Vand. J. Transnat'l L. 549, 556-57 (Mar. 2002).

^[6] Westphalian sovereignty is the concept of nation-state sovereignty based on two principles: territoriality and the exclusion of external actors from domestic authority structures.

Many academics have asserted that the international system of states, multinational corporations and organizations which exists today began in 1648 at the Peace of Westphalia. Both the basis and the result of this view have been attacked by revisionist academics and politicians alike, with revisionists questioning the significance of the Peace, and commentators and politicians attacking the Westphalian System of sovereign nation-states.

^[7] The Westphalian model of state-dominated warfare represents "trinitarian warfare," a principle whereby the government directs the war, a state-controlled army fights the war, and the people suffer.

^[8] Ariadne K. Sacharoff, Multinationals in Host Countries: Can They Be Held Liable Under the Alien Tort Claims Act for Human Rights Violations?, 23:3 Brook. J. Int'l L. 927, 929 (1998).

^[9] The companies that comprise the privatized military industry are referred to as private military companies ("PMCs") or private military firms ("PMFs"). Additionally, author and Brookings Institute scholar P.W. Singer organizes the privatized military industry into three sectors: "military provider firms, military consultant firms, and military support firms." Peter W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry 91 (2003). According to Singer, a military consulting firm "provide[s] advisory and training services integral to the operation and restructuring of a client's armed forces" by offering "strategic, operational, and/or organizational analysis."

^[10] P.W. SINGER, CORPORATE WARRIORS: THE RISE OF THE PRIVATIZED MILITARY INDUSTRY 49 (2003).

^[11] Laura Peterson, Privatizing Combat, the New World Order, in Making a Killing: The Business of War 5, 6 (2002), available at http:// www.icij.org/dtaweb/icij_bow.asp#. Their various clients include governments in the developed and developing world alike, non-state belligerents, international corporations, non-governmental organizations, the United Nations, and private individuals

^[12] Benjamin Perrin, Promoting compliance of private security and military companies with international humanitarian law, International Review of the Red Cross (2006), 88:613-636 Cambridge University Press.

^[13] J.T. Mlinarcik, PRIVATE MILITARY CONTRACTORS & JUSTICE: A LOOK AT THE INDUSTRY, BLACKWATER, & THE FALLUJAH INCIDENT, Regent Journal ofInternational Law. (2006)

^[14] Q&A: Private Military Contractors and the Law, HUMAN RIGHTS WATCH, (Oct. 21, 2004), Retrieved from http://www.hrw.org/english/docs/2004/05/05/iraq8547.htm.

^[15] Carlos Ortiz, Regulating Private Military Companies: States and Expanding Business of Commercial Security Provision, Retrieved from

www.privatemilitary.org/publications/ortiz_2004_regulating_private_military_companies.pdf

^[16] Jostein Brobakk, Norwegian University of Science and Technology, After the Cold War: Structural changes and Israeli-Palestinian rapprochement, Paper presented at The fourth Nordic conference on Middle Eastern Studies: The Middle East in globalizing world, Oslo, 13-16 August 1998. retrieved from http://www.smi.uib.no/pao/brobakk.html

^[17] Doug Bandow, Waging War Only When Necessary, (2008), retrieved from http://www.antiwar.com/bandow/?articleid=12952