For centuries, states have raised militaries to defend themselves against external forces and provide security for their citizens. However, over the last decade, private military and security companies (PMSCs) have grown in scope and importance to the extent that they have become a full-fledged industry, carrying out nearly all the functions and roles that militaries of some of the most advanced states perform. The dramatic rise of PMSCs has, however, raised issues pertaining to their regulation, control and accountability and the book entitled, War by Contract: Human Rights, Humanitarian Law and Private Contractors successfully tackles the intractable subject in almost all of its varied aspects.
In the introductory chapter entitled: “Policy Prospects for Regulating Private Military and Security Companies,” the writer Eugenio Cusmano accepts that the private military and security industry (PMSI) is not properly regulated, and even cites critics who say it is “less regulated than the cheese industry.” To him, the reason for the lack of regulation is that ‘market for force,’ in which the PMSCs operate, is huge and fragmented and has an inherently transnational nature which challenges conventional state regulation. In order to properly understand regulation one must look into the nature, evolution and the growth of the PMSI.
Although private military companies have been in existence for a long time, the so-called ‘market for force’ transformed and grew worldwide only after the Cold War. There are a variety of reasons for this change. First, the downsizing of major armies increased the demand for external contractors, as the strain on financial and human resources encouraged the outsourcing of functions. On the other hand, the growing use and need of advanced weaponry and equipment facilitated the rise of PMSCs. Then in the 2001 Quadrennial Defense Review, the US Department of Defense (DoD) planned the gradual privatization of all activities not ‘directly linked to war fighting.’
The need for PMSCs also increased with the rise in number of international organizations (IOs) and NGOs working in weak and failed states. As local and international forces became increasingly incapable of supplying the security needs and logistical support for IOs and NGOs, the importance and use of PMSCs gained in importance. Today, even foreign aid and humanitarian relief are increasingly provided by private businesses and non-government entities.
The rise of PMSCs was also in sync with the ideological shift produced by the ‘privatization revolution,’ following the rise of neo-liberalism. Thus, writes Cusmano: “The new ideological environment appears to have triggered a trend towards the commoditization of security, which is no longer a public good; security is increasingly conceived of as a commodity to be sold and purchased on the market rather than being exclusively supplied by public actors.” It is noteworthy that the Iraq War of 2003, was famously defined as the first privatized conflict. As of September 2009, there were 119,706 DoD contractors in Iraq compared to 134,571 uniformed personnel.
However, the increase in private military and security activities has seen a rise in cases of human rights violations. Problems related to functional effectiveness of PMSCs in theatres of operations have raised a unique set of concerns. Firstly, PMSC personnel are only bound by the terms of their contract and not by the patriotic and humanitarian principles that bind soldiers of a conventional military. As these contracts are rigid legal tools they cannot be adjusted to meet the unforeseen operational requirements caused by abrupt changes in war-torn environments. PMSCs have often been found to provide personnel without the requisite qualification to perform their contractual obligations. These personnel function outside military chains of command which lead to problems of communication, command and control. In Iraq, this lack of coordination led to cases of ‘blue-to-white fire’ (friendly fire between uniformed and contracted personnel).
In addition, the author states that outsourcing has placed the success of military operations at the mercy of personnel outside the ranks, who have quit their jobs on many occasions without being prosecuted for desertion. In Iraq, some logistics firms suspended their activities because they found the local environment ‘too dangerous’. Recent enquiries raise even more alarming concerns over the reliability of contractors: a US Senate Armed Services Committee—still partially classified—found warlords involved in illegal activities and some Taliban insurgents having ties with security guards, some of whom were using their access to coalition military bases to steal weapons and had planned attacks against employers. Thus, the PMSC personnel have often been found wanting in discipline and using excessive force, for they are not well-trained soldiers of conventional militaries. In fact, the US plan to win hearts and minds of the Iraqi people and to rebuild the nation faced difficulties. In the words of President Obama, the US “cannot win a fight for hearts and minds when we outsource critical missions to unaccountable contractors.”
Cusmano also fears that “with their consultancy, training and lobbying activities, PMSCs may play a role in shaping the security perceptions and strategic priorities of governmental agencies, thereby gaining excessive epistemic influence over the making of foreign policy.”
However, the expert proposes a multilayered approach to future regulation for the simple reason that a large percentage of PMSCs are not involved in combat functions, but deal with logistics as they cannot be brought under the existing legislation on mercenaries.
The second chapter by Nataliono Ronzini takes up the highly relevant issue of piracy and the way PMSCs could be used to fight against this “renewed plague of maritime commerce.” The author argues that although international law prohibits the arming of private vessels for pirate hunting, there are no specific prohibitions against the use of security guards for protecting private shipping. Therefore, the expert avers that their use should be reconciled with the laws of the sea.
Chapter 3 provides a comprehensive survey of the applicable treaties and laws, as well as the main obligations that can be derived from there, particularly for states involved in the use of PMSCs. The following chapter focuses specifically on the role of the EU, especially in the light of the Charter of Fundamental Rights and in conjunction with the human rights jurisprudence of the European Court of Human Rights in Strasbourg. A keener and more incisive legal analysis follows in Chapter 5, where Francisco Francioni addresses the role of the PMSC’s ‘home state,’ i.e. the state where the company was constituted. The main argument developed by the author is that the “nature of human rights obligations permits the construction of a general duty of ‘due diligence’ in the constitution and licensing of the company and its employees, as well as the licensing of commercial exports of military and security services to prevent and protect against abuses.”
While Chapter 6 analyses the human rights obligations of the ‘hiring state,’ i.e. the state that contractually engages the PMSC for the provision of services, most of the times abroad, the following chapter deals with the issue of human rights obligations from the perspective of the ‘host state,’ i.e. the state in whose territory the private security or military services are performed. In a subsequent chapter, Guilani Pinzuata addresses the challenges posed by the increasing reliance on PMSCs for the supervision and adjudication of human rights violations committed in times of armed conflicts, and focuses on the potential role of the European Court on Human Rights (ECtHR).
Chapter 13 of the book discusses whether PMSCs can be held accountable for recruiting children or for using them to participate actively in hostilities. Another chapter focuses on gender-related issues, especially women employees of PMSCs that have recently brought actions against their employers for sexual assault. The chapter also covers recent cases of female civilian victims of contractors operating forced prostitution rings.
The concluding section of the book delves into sundry legal issues and also proposes ‘essential’ changes. However, the book turns into a veritable tome of casuistry, to be perused strictly by legal experts. Although it is true that this technical tour-de-force presents a systematic analysis of the way in which international law may be interpreted and implemented to fill possible accountability gaps when it comes to the functions of the PMSI, its sheer brilliance would make it the sole labor of love for scholars and students of international human rights law.