private military contractors and the taint of a mercenary reputation

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    PRIVATE MILITARY CONTRACTORS AND THETAINT OF A MERCENARY REPUTATION

    ZOE SALZMAN*

    I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854 RII. AN INTRODUCTION TO THE PRIVATE MILITARY

    INDUSTRY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 857 RIII. CONCERNS RAISED BY THE PRIVATIZATION OF

    FORCE BY DEMOCRATIC STATES . . . . . . . . . . . . . . . . . . . 858 RA. Governments Increasingly Rely on Private

    Contractors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 858 RB. The Pervasive Use of Private Contractors

    Threatens the Democratic Nation-State . . . . . . . . . . 860 R1. The Private Military Industry Undermines the

    States Monopoly on the Use of Force . . . . . . . . 860 R2. The Use of Private Contractors Undermines

    Democratic Checks on War-Making . . . . . . . . . 866 R3. The Private Military Industry Prioritizes the

    Private Good over the Public Good . . . . . . . . . 872 RIV. THE SPIRIT OF THE LAW: HOLDING PRIVATE

    CONTRACTORS ACCOUNTABLE UNDER ANTI-MERCENARY LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 874 RA. The Taint of a Mercenary Reputation . . . . . . . . . . 874 RB. The Concerns with Private Contractors Resemble

    the Concerns with Mercenaries . . . . . . . . . . . . . . . . . 876 RV. THE LETTER OF THE LAW: APPLYING PROTOCOL IS

    DEFINITION OF MERCENARY TO PRIVATECONTRACTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 879 RA. Private Contractors Can Meet the Specially

    Recruited Requirement . . . . . . . . . . . . . . . . . . . . . . . 880 RB. Private Contractors Can Meet the Direct

    Participation Requirement . . . . . . . . . . . . . . . . . . . . . 882 RC. Private Contractors Can Meet the Foreign

    Nationality Requirement . . . . . . . . . . . . . . . . . . . . . . . 884 R

    * Candidate for LL.M. (International Legal Studies) New York Univer-sity School of Law 2008; J.D. New York University School of Law 2007. Mythanks to Professor Simon Chesterman for his comments on earlier versionsand to Lisa Gouldy for her insightful edits. Any errors are my own.

    853

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    854 INTERNATIONAL LAW AND POLITICS [Vol. 40:853

    D. Private Contractors Can Meet the Motivation ofFinancial Gain Requirement . . . . . . . . . . . . . . . . . . . 885 R

    E. The Corporate Nature of Private Contractors DoesNot Distinguish Them from Mercenaries . . . . . . . . 887 R

    F. State Employ of Private Contractors Does NotExempt Them from Anti-Mercenary Prohibitions . . 888 R

    VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 890 R

    I. INTRODUCTION

    There is something terribly seductive about the notion of amercenary army.1

    Far from being merely a seductive notion, the reality to-day is that many states, even powerful democratic states, areincreasingly relying on private military contractors to managetheir military efforts in conflicts and in peacetime.2 Mostprominently, perhaps, the American military effort in Iraq re-lies heavily on the private military industry, with a force ofsome 20,000 to 50,000 private military contractors forming thesecond largest armed contingent in Iraq (after the Americannational armed forces).3 Some of these private contractorsbriefly attracted public attention for their involvement in theAbu Ghraib prison abuse scandal.4

    More recently, on September 16, 2007, private contractorsemployed by the private military company (PMC)5 Blackwaterkilled seventeen Iraqi civilians, apparently without any justifi-cation.6 This incident prompted public outcry in the United

    1. Ted Koppel, Op-Ed., These Guns for Hire, N.Y. TIMES, May 22, 2006, atA21.

    2. See generally PETER SINGER, CORPORATE WARRIORS 4-15 (2003) [herein-after SINGER, CORPORATE WARRIORS].

    3. See, e.g., PBS, Frontline: Private Warriors, Frequently Asked Ques-tions, http://www.pbs.org/wgbh/pages/frontline/shows/warriors/faqs/(last visited Mar. 17, 2008) (estimating the number of private contractors inIraq to be 20,000); Koppel, supra note 1 (putting the number at 50,000). R

    4. Deborah Avant, Mercenaries, FOREIGN POLY, July-Aug. 2004, at 21[hereinafter Avant, Mercenaries]; Mark Benjamin & Michael Scherer, BigSteve and Abu Ghraib, SALON, Mar. 31, 2006, http://www.salon.com/news/feature/2006/03/31/big_steve/print.html.

    5. Different terms are used to describe these companies: While Singerrefers to them as PMFs (private military firms), other authors use the termPMC (private military companies), which I will use in this Note.

    6. See David Johnston, John M. Broder & Paul von Zielbauer, F.B.I. SaysGuards Killed 14 Iraqis Without Cause, N.Y. TIMES, Nov. 14, 2007, at A1 (citing

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    2008] PRIVATE MILITARY CONTRACTORS 855

    States and in Iraq, drawing media and political attention to theprivate military industrys lack of accountability.7 Much of thisoutcry has assumed that private military contractors are nomore than mercenaries, with all of the ugly connotations thatthat term carries with it.8

    From a legal perspective, however, this assumption re-mains contentious. There is an ongoing debate over whetherprivate military companies, and the private contractors thatthey employ, should be treated just like any other transna-tional industry, or whether they should be treated like merce-nariespariahs under international law.9 PMCs and their ad-vocates are quick to assert that they are not mercenaries andthat existing international law condemning mercenaries can-not be applied to them.10 The trend in the legal scholarship issimilar, with some academics arguing that treating private con-tractors as mercenaries is not productive,11 dismissing the fearthat if we allow PMCs to legitimate the profession ofmercenarism . . . the dangerous threat of mercenaries in gen-

    federal agents preliminary conclusions that at least 14 out of the 17 shoot-ings were unjustified and noting that an earlier military investigation hadfound all of the killings unjustified).

    7. See, e.g., Andrew Gray, Private Contractors are a Growing Force in WarZones, REUTERS, Sept. 18, 2007; Editorial, Subcontracting the War, N.Y. TIMES,Oct. 1, 2007, at A24 [hereinafter Editorial, Subcontracting the War].

    8. See, e.g., Stephanie Nebehay, Private Security Firms Lack Supervision inWars: UN, REUTERS, Nov. 6, 2007 (referring to a UN report condemningprivate contractors in Iraq as mercenaries); The Charlie Rose Show: A Conversa-tion with the Chairman and CEO of Blackwater, Erik Prince, (PBS televisionbroadcast Oct. 15, 2007); Editorial, Accountability on the Battlefield, N.Y. TIMES,Oct. 8, 2007, at A18; Blackwater and the Outsourcing of War: US Reliance onPrivate Armies is Breeding Lawlessness, FIN. TIMES (Asia ed.), Oct. 4, 2007, at 8(noting a growing awareness of how dependent the US military has becomeon mercenaries).

    9. See Virginia Newell & Benedict Sheehy, Corporate Militaries and States:Actors, Interactions, and Reactions, 41 TEX. INTL L.J. 67, 72 (2006).

    10. See, e.g., Juan Carlos Zarate, The Emergence of a New Dog of War: PrivateInternational Security Companies, International Law, and the New World Disorder,34 STAN. J. INTL L. 75, 80 (1998); Jonathan Guthrie, Tim Spicer Finds Securityin the Worlds War Zones, FIN. TIMES (London), Apr. 7, 2006, at 21 (We pro-vide protective security. It is very sophisticated and has little to do with themercenaries of the 1960s. (quoting Tim Spicer, CEO of Aegis Defence Ser-vices)).

    11. See Chia Lehnardt, Regulating the Private Commercial Military Sector8 (Dec. 1-3, 2006) (unpublished workshop report, on file with author); seealso Avant, Mercenaries, supra note 4, at 20. R

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    856 INTERNATIONAL LAW AND POLITICS [Vol. 40:853

    eral [is unleashed].12 The PMC industry seems to havelargely succeeded in portraying itself as a new phenomenon towhich the old rules on mercenaries do not apply. Rather, pro-ponents of the industry and academics alike argue that newrules, developed in partnership with the industry, are neededin order to adequately reflect and address the privatization offorce in the twenty-first century.13

    My goal in this Note is to show that both the letter and thespirit of the international law on mercenaries support the pub-lics and the medias understanding of private military contrac-tors as mercenaries. Contrary to the industrys assertions,therefore, existing international law on mercenaries (in partic-ular article 47 of the First Additional Protocol of the GenevaConventions)14 can be applied to at least some private contrac-tors. As we begin to reflect on how domestic and internationallaw could better regulate the private military industry,15 it isimportant to recognize and take into account the similaritiesbetween private contractors and mercenaries.

    To begin, I briefly introduce the private military industryin Part II. I then identify, in Part III, some of the concernswith the use of private force by democratic states.16 In Part IV,

    12. Zarate, supra note 10, at 148 (rejecting this concern). R13. See Lehnardt, supra note 11, at 10; see also Ellen L. Frye, Note, Private R

    Military Firms in the New World Order: How Redefining Mercenary Can Tame theDogs of War, 73 FORDHAM L. REV. 2607, 2656-63 (2005).

    14. Protocol Additional to the Geneva Conventions of 12 August 1949,and Relating to the Protection of Victims of International Armed Conflictsart. 47, Dec. 7, 1978, 1125 U.N.T.S. 3 [herei